Second Amended Complaint

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Scott D. Baker (SBN 84923)
sbaker@reedsmith.com
William R. Overend (SBN 180209)
woverend@reedsmith.com
Luisa M. Bonachea (SBN 267664)
lbonachea@reedsmith.com
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone: +14155438700
Facsimile: + 1 415391 8269
Attorneys for Plaintiff TIBCO Software Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
UNLIMITED CIVIL CASE
TIBCO SOFTWARE INC., a Delaware
Corporation,
Plaintiff,
v.
ENSUANT, INC., a California Corporation,
PUNEET ARORA, an Individual, NELSON
PETRACEK, an Individual, BASANTH
GOWDA, an Individual, and DOES 1 through
100, inclusive,
Defendants.
Case No.: 1-1O-CV-174346
SECOND AMENDED COMPLAINT FOR
1. TRADE SECRETS
MISAPPROPRIATION;
2. BREACH OF CONTRACT (TWO
COUNTS);
3. TORTIOUS INTERFERENCE WITH
CONTRACT (TWO COUNTS); AND
4. UNFAIR COMPETITION UNDER CAL.
BUS. & PROF. CODE 17200.
Hon. Peter H. Kirwan, Dep't 8
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SECOND AMENDED COMPLAINT
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Plaintiff TIBCO Software Inc. ("TIBCO"), by its undersigned counsel, brings this
action against Defendants Ensuant, Inc. ("Ensuant"), Puneet Arora ("Arora"), Nelson Petracek
("Petracek"), Basanth Gowda ("Gowda"), and Does 1 through 100, inclusive ("Doe Defendants")
(hereinafter collectively, "Defendants"), and, in support thereof, alleges as follows:
INTRODUCTION
1. What began just a few years ago as an idea within TIBCO's emerging technology
division has since become one of its most innovative and fastest-growing technologies. This
software-based technology, embodied in TIBCO's Business Events product and services line,
enables TIBCO customers to detect patterns in consumer behavior and use them to create real-time
rules which, in tum, allow businesses to optimize resources and maximize revenue. Business Events
is now used by leaders in the retail, banking, airline, and telecommunications industries, allowing
retail stores to individualize offers to clients, airlines to optimize resources when luggage is lost,
energy companies to monitor smart meters and the emerging "smart" grid, and telephone companies
to provision mobile phones as they are purchased. Business Events is the result of over six years of
research and development, the efforts of a highly-skilled division within TIBCO, and the investment
of millions of dollars.
2. Rather than focusing exclusively on the investment and growth of this successful
product, however, TIBCO suddenly finds itself fighting to retain Business Events clients as well as
its own Business Events engineers, consultants, and field employees due to the illegal and unfair
activities of a former TIBCO employee and his newly formed company. As a result of these
activities, TIBCO brings this action against Arora, TIBCO's former Chief Technology Officer for
North America and former leader of the team that developed Business Events, and Ensuant, Arora's
newly formed company, along with two other former TIBCO employees who are now at Ensuant
and who, on information and belief, are actively conspiring with Arora to compete unfairly with
TIBCO by stealing its customers and employees through illegal use of TIBCO's trade secrets and
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other confidential information, and through unfair competition with TIBCO and its business.
3. In less than one year since his resignation from TIBCO, Arora (a) has founded a
company, Ensuant, which purports to market a product and services that compete directly with
TIBCO's Business Events business, including the market for services and support of TIBCO
software; (b) has misappropriated TIBCO's trade secrets and other proprietary and confidential
information; (c) has wrongfully solicited and hired TIBCO employees from the team he once led;
and (d) has misappropriated relationships with TIBCO clients. In the process, Arora has effectively
and wrongfully replicated at Ensuant a team which includes many of the same employees he worked
with at TIBCO, selling products and services modeled largely after those developed at and owned by
TIBCO to many of the very same TIBCO clients he worked with while employed at TIBCO.
4. Defendants' actions, resulting in the loss of key TIBCO personnel, threaten to cripple
TIBCO's efforts to continue its development and the continued success of Business Events and
related products and services, and to keep up with increasing client demand. As of the initial filing
of this action, at least two former Business Events team members had become Ensuant employees.
Nelson Petracek, former Senior Director, Product Consulting and the second-in-command on the
Business Events team, resigned from TIBCO in December 2009 and is now Co-Founder and Vice
President of Field at Ensuant. Another former Business Events team member, Basanth Gowda,
resigned from TIBCO in May 2010 to work at Ensuant. The departure of both employees came
about after repeated solicitation by Arora. Since the filing of this action, TIBCO is informed and
believes and thereon alleges that Defendants have continued their wrongful conduct, continuing to
solicit TIBCO employees and to compete unfairly with TIBCO by using its trade secrets and
confidential information.
5. In the short time since Arora founded Ensuant, he has also capitalized on the
relationships cultivated at TIBCO by stealing away Business Events clients. These clients include
leaders in the banking, retail, and airline industries. On information and belief, Defendants are,
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among other things, offering to design and implement custom configurations of TIBCO software for
these clients using trade secrets and other confidential information wrongfully obtained from
TIBCO. Arora's actions are projected to cost TIBCO millions of dollars in licensing and consulting
revenues in 2010 and beyond.
6. In light of Arora and Ensuant's attempts to capitalize on TIBCO's multimillion dollar
Business Events product, and the resulting customers and related markets, by soliciting TIBCO
employees, stealing TIBCO clients, and improperly using and/or disclosing TIBCO's trade secrets
and other confidential information, TIBCO brings this Complaint and requests the relief set forth
below.
PARTIES
7. Plaintiff TIBCO Software Inc. is Delaware Corporation with its principal place of
business located at 3303 Hillview Avenue Palo Alto, CA 94304.
8. Upon information and belief, Defendant Ensuant, Inc. is a California Corporation with
its principal place of business located at 440 North Wolfe Road # 37, Sunnyvale, CA 94085-3869.
9. Upon information and belief, Defendant Puneet Arora is an individual who resides in
Santa Clara County, California.
10. Upon information and belief, Defendant Nelson Petracek is an individual who resides
in Calgary, Alberta, Canada. This Court has personal jurisdiction over Petracek. Petracek has
conducted business, and engaged in various acts, including pertaining to the subject matter of this
lawsuit, in and directed to California, including in this Judicial District.
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11. Upon information and belief, Defendant Basanth Gowda is an individual who resides
in Lake Bluff, Illinois. This Court has personal jurisdiction over Gowda. Gowda has conducted
business, and engaged in various acts, including pertaining to the subject matter of this lawsuit, in
and directed to California, including in this Judicial District.
12. Defendants Does 1 through 100, inclusive, are sued herein under fictitious names.
Their true names and capacities are unknown to TIBCO. When their true names and capacities are
ascertained, TIBCO will amend this Complaint by inserting their true names and capacities herein.
TIBCO is informed and believes and thereon alleges that each of the Doe Defendants is responsible
in some manner for the occurrences herein alleged, and that TIBCO's damages as herein alleged
were proximately caused by the Doe Defendants.
13. TIBCO is informed and believes that at all times herein mentioned, each of the
Defendants was the agent and/or employee of each of the remaining Defendants, and in doing the
things hereinafter alleged, was acting within the course and scope of such agency and/or
employment. TIBCO is further informed and believes and thereon alleges that each of the
Defendants acted in concert with the others and gave consent to, ratified or authorized the acts of
other Defendants and their employees.
JURISDICTION AND VENUE
14. This Court has jurisdiction over the subject matter of this action because it concerns
employment and non-disclosure contracts entered into and/or performed in Santa Clara County and
because the amount in dispute exceeds the jurisdictional minimum of this Court.
15. Venue is proper in this judicial district because all parties reside here and the acts and
events giving rise to the claims asserted herein, at least in part, arose here.
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FACTS COMMON TO ALL CAUSES OF ACTION
A. TIBCO and TIBCO's Business Events Software.
16. Headquartered in Palo Alto, California, TIBCO provides enterprise software that helps
companies achieve service-oriented architecture and business process management success. With
over two thousand employees, over four thousand customers, and offices in forty countries, TIBCO
has given leading organizations around the world better awareness and agility. TIBCO focuses on
leveraging and extending the capabilities of its software to help companies move toward predictive
business. Predictive business allows companies to anticipate customer needs, create opportunities,
and avoid potential problems. As the basis of the real-time movement of data across the enterprise,
TIBCO's software is uniquely capable of correlating information about a company's operations and
performance with information about expected behavior and business rules so they can anticipate and
respond to threats and opportunities before they occur.
17. Business Events is one ofTIBCO's most successful and important predictive business
products. The technology utilized in Business Events enables customers to detect patterns in real-
time and act upon them as they happen. The principal components are pattern detection and rule
creation, which, together, solve a variety of business problems for clients. This approach, as applied
to markets, had never been widely used before Business Events was developed. The technology
gives clients a competitive advantage in these markets, allowing companies across a spectrum of
industries to optimize resources and maximize revenue.
18. Business Events, now used by leaders in the retail, banking, and airline industries,
allows businesses to make intelligent, customized offers to consumers based on current behavior
(e.g., purchase of shirts in a department store) and past behavior (e.g., prior purchase of shoes in a
department store) in real-time. Business Events' business applications vary from optimizing the use
of resources for lost luggage to measuring meters in the energy industry.
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19. Implementing Business Events often requires TIBCO's engineers and professional
services consultants to go to a client's location to assist in designing the client's system and to assist
in implementing Business Events with this system. It takes a number of years to become technically
proficient in the use of Business Events to the degree needed to provide these services to clients.
TIBCO and other services companies have spent (at great expense) years developing and training
qualified engineers and consultants to provide these services.
B. TIBCO's Valuable Trade Secrets and Confidential Information.
20. As part of its business, TmCO has developed, and uses, various proprietary and
confidential trade practices, trade materials, and other trade secrets. These trade secrets are the result
of years of time, money and labor, including millions of dollars in development and training costs.
Notably, once a customer has purchased and installed Business Events software, it will often need
further assistance implementing and administering the software, customizing and/or upgrading it,
and/or integrating it with the customer's other systems. TIBCO provides these integration services
to its customers as separate consulting services independent from initial sales of Business Events.
TIBCO's trade secrets regarding information concerning the design, operation and implementation
of Business Events provide it with a competitive advantage in the market for providing these
integration services to customers. Likewise, TIBCO's trade secrets regarding the details of customer
installations and preferences provide a competitive advantage to TIBCO with regard to providing
follow-up integration services to those same customers.
21. TIBCO's various trade secrets include, but are not limited to, the following
(collectively referred to as "TIBCO Trade Secrets"): source code, know-how and other confidential
and proprietary information regarding TIBCO's Business Events and other software; confidential
information regarding the details of TIBCO customer implementations of Business Events and/or
other software; product development plans, confidential sales strategies, marketing plans and
business plans; confidential information regarding TIBCO's customers and potential customers;
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confidential financial information regarding TIBCO and its business; and confidential information
regarding TIBCO employees.
22. The TIBCO Trade Secrets are not generally known to the public or the software
industry, including the complex events processing software industry. This information was
developed by TIBCO over a substantial period of time, including through substantial software
development and design efforts, marketing analysis and testing, confidential business relationships
and communications with customers. If this information could have been learned at all, it would
have taken a substantial period of time to learn, at a substantial cost. The information provides
TIBCO with a competitive advantage.
23. TIBCO has taken, and continues to take, measures to prevent disclosure of this
information to the general public or the software industry. For example, TIBCO stores its electronic
records on a secured, password-protected network. TIBCO's source code is maintained in a secure
repository, and only limited access is provided to the code. TIBCO's business facilities are subject
to additional security measures as well.
24. In addition, TIBCO's employees, including each of the Defendants, contractually
agree that all trade secrets and other proprietary and confidential information which comes into the
employees' possession (including any information originated or developed by the employee while
employed by TIBCO) is secret and is the exclusive property ofTIBCO. TIBCO's employees further
agree that such trade secrets and other proprietary and confidential materials are only to be used by
the employee in connection with his or her work for TIBCO. Each employee further agrees that
while employed with TIBCO and thereafter, he or she shall hold such information in confidence and
not disclose or reveal such information in any manner to any other person or entity.
25. TIBCO's employees also contractually agree that, upon the request ofTIBCO or upon
leaving the employ of TIBCO, they will promptly return to TIBCO the original and all copies of any
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documents, reports, notes or other materials incorporating or reflecting, in any way, any trade secrets
or other proprietary or confidential materials in the possession or under the control of the employee.
26. Finally, TIBCO's employees agree that any use or disclosure ofTIBCO's trade secrets
or other proprietary or confidential information other than for TIBCO's benefit and without
TIBCO's prior written consent would cause irreparable injury to TIBCO, and that TIBCO would
thus be entitled to obtain an injunction to protect against the wrongful use or disclosure of such
information.
C. TIDeO Hires Arora, Establishes A Team Within The Quantum Leap Group To Pursue
A New Technology, And Appoints Arora To Oversee It.
27. On December 8, 1998, TIBCO hired Arora as a Senior Member of the Technical Staff .
On April 12, 1999, Arora and TIBCO entered into an Employment Agreement ("Arora Employment
Agreement") in which Arora agreed, inter alia, "that during the term of this Agreement and for a
period of (1) year thereafter, [he] shall not, directly or indirectly, either for himself or for any other
person ... , corporation or other legal entity, solicit any then employee of [TIBCO] to leave the
employment ofTIBCO." Among other things, Arora agreed in Section V of the Arora Employment
Agreement to be bound by the Non-Disclosure/Assignment Agreement attached as Exhibit A, and
that the provisions of Exhibit A "shall survive any termination of this Agreement." Attached hereto
as Exhibit A is a true and correct copy of the Arora Employment Agreement.
28. In April 2004, TIBCO decided to pursue the technology that would ultimately become
Business Events. TIBCO tapped Arora to lead the development of this technology. Although his
background was primarily technical, he had also shown promise as a manager, serving as
ArchitectlPrincipal Engineer, Principal Architect, Senior Architect, and Vice President Engineering.
(He would later serve as Vice President Strategic Technology Group, and North America Chief
Technology Officer.)
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29. Arora and four other employees began developing this technology in 2004 as part of
the Quantum Leap Group, an emerging technologies/leading edge division within TIBCO. The
Quantum Leap Group combines the functions of engineering, sales support, and marketing with a
specialized technical field consulting/enablement team. Arora and his team of five released version
1.0 of Business Events in November 2004. The group expanded from 5 to 12 from 2003 to 2004,
from 12 to 16 from 2004 to 2005, and from 16 to 18 from 2005 to 2006. The group released version
2.0 in November 2006.
30. As the Quantum Leap Group leader, Arora was responsible for developing and
marketing Business Events. In this capacity, he had knowledge of and access to all critical data and
information regarding product development and engineering (including source code), sales and
marketing (including potential clients and their Business Events installations), and the talents and
capabilities of TIBCO personnel.
D. Business Events Succeeds As A Mainstream Product.
31. From 2004 to 2007, Business Events remained a leading edge product due to its
relatively small customer base. The millions of dollars TIBCO had invested in Business Events
would, however, eventually payoff. With demand surging, by mid-2007 Business Events had
become firmly established as a mainstream product. Clients began finding new and innovative ways
to use the technology, providing TIBCO with a steady stream of Business Events-related projects
and revenues. The team also grew-from 18 to 30 from 2006 to 2007, from 30 to 76 from 2007 to
2008, and from 76 to 126 from 2008 to 2009. The team decreased in size from 126 to 122 from
2009 to 2010. Version 3.0 of Business Events was released in May 2008 and version 4.0 in May
2010.
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E. Arora Resigns, Establishes Ensuant, And Immediately Begins Soliciting TIBCO
Employees And Clients.
32. On July 29, 2009, after over ten years as a TIBCO employee, Arora tendered his
resignation. That same day, he received a letter from TIBCO Corporate Human Resources
reminding him of his obligations to TIBCO pursuant to the terms of his Employment Agreement.
These obligations included a restriction on not improperly using or disclosing TIBCO's proprietary
information, and not soliciting TIBCO employees for a period of one year after leaving TIBCO.
Attached hereto as Exhibit B is a true and correct copy ofthis letter.
33. On October 16,2009, fewer than three months after his departure from TIBCO, Arora
established Ensuant as a California corporation. The solicitation and hiring of TIBCO employees
began almost immediately .
34. Nelson Petracek was the first TIBCO employee to resign and join Ensuant in the wake
of Arora's departure. On December 6, 2001, TIBCO Software Canada, Inc. hired Petracek as a
Senior Systems Engineer. He joined the Quantum Leap Group's Business Events team in late 2005,
where he quickly rose to second-in-command after Arora. Petracek's expertise was principally in
field operations, where he managed all Business Events pre-sales and post-sales representatives. He
also demonstrated a strong understanding of the technical aspects of Business Events. During his
tenure as a member of the Quantum Leap Group, he developed a close relationship with Arora.
Petracek announced his resignation from TIBCO on December 19,2009. He joined Ensuant shortly
thereafter where he serves, according to the Ensuant website, as "Co-Founder" of Ensuant, a
corporation established fully two months prior to his resignation from TIBCO. Upon information'
and belief, Petracek is fulfilling many of the same job responsibilities at Ensuant as he was at
TIBCO.
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35. After months of solicitation by and contact with Arora, another key Business Events
team member, Basanth Gowda, left TIBeO in May 2010 in order to join Ensuant-a move Gowda
had been planning for months before his actual departure. Arora emailed Gowda on multiple
occasions between October 27, 2009 and April 27, 2010. On at least one occasion in April 2010,
Arora arranged to meet Gowda and two other TIBeO colleagues in Atlanta. Gowda finally
announced his resignation from TIBeO in an email to TIBeO colleagues on May 7, 2010. By that
time, Gowda's professional relationship with Arora and Petracek had become so close that he
included Arora's and Petracek's email addresses in the blind carbon copy field of that email.
Immediately thereafter, Gowda began working for Ensuant. TIBeO is informed and believes and
thereon alleges that, prior to his departure from TIBeO, Gowda improperly disclosed TIBeO trade
secrets and/or confidential information to Arora and/or others at Ensuant. Upon information and
belief, Gowda is fulfilling many of the same job responsibilities at Ensuant as he was at TIBeO.
36. Nick Leong was another Business Events team member to resign from TIBeO. He
and Arora communicated via email at least once on May 12, 2010. On June 3, 2010-less than a
month later-Leong announced his own resignation. TIBeO is informed and believes and thereon
alleges that Arora was involved in soliciting Leong to leave TIBeO and join Ensuant, in violation of
Arora's contractual obligations to TIBeo.
37. Since his resignation from TIBeO, Arora has contacted, in addition to Petracek,
Gowda, and Leong, numerous other TIBeO employees. Upon information and belief, several of
these contacts involved Arora's solicitation of TIBeO employees. TIBeO is further informed and
believes and thereon alleges that Petracek and Gowda were involved in soliciting one or more of
these and/or other TIBeO employees to leave their employment at TIBeO and join Ensuant.
38. After filing this lawsuit, TIBeO initially believed that Defendants had stopped
soliciting TIBeO's employees. However, it is now apparent that Defendants are continuing to
solicit TIBeO employees. TIBeO is informed and believes and thereon alleges that such TIBeO
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employees are being encouraged by Defendants to breach their contractual obligations to TIBCO by
disclosing and/or using TIBCO's trade secrets and/or confidential information. TIBCO is further
informed and believes and thereon alleges that one or more additional TIBCO employees have left
TIBCO to join Ensuant as a result of Defendants' improper solicitations.
39. TIBCO is further informed and believes and thereon alleges that, in addition to
recruiting Arora's former Business Events colleagues, Defendants have been communicating with
TIBCO clients in an attempt to steal them away. TIBCO is informed and believes and thereon
alleges that Ensuant is now doing business with several of TIBCO's Business Events clients.
TIBCO is further informed and believes and thereon alleges that Defendants are wrongfully using
TIBCO's trade secrets and/or confidential information to solicit and/or work with those customers.
F. Ensuant Sells Products And Services To Business Events Clients.
40. Upon information and belief, Ensuant offers both its own proprietary software
products as well as related installation and consulting services. Upon information and belief,
Ensuant utilizes a technology known as iNDUS-the Ensuant Applications Network, "a model
driven platform that takes advantage of Moore's law and declarative languages." Upon information
and belief, Ensuant also offers information technology and product strategy consulting services
based on the Ensuant Application Network. These services include technology evaluations and
selection, and mapping business requirements to the correct technology set.
41. TIBCO is informed and believes and thereon alleges that Defendants are using trade
secrets and other confidential information misappropriated from TIBCO in connection with
Ensuant's business. For example, Defendants are soliciting former TIBCO customers - customers
about whom Defendants know many non-public and confidential details as a result of their
employment with TIBCO. TIBCO is informed and believes and thereon alleges Defendants are
wrongfully using such information to try to solicit TIBCO' s customers. F or example, TIBCO is
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informed and believes and thereon alleges that Defendants are wrongfully using trade secret and
confidential information concerning TIBCO clients' software configurations and implementations to
obtain new business from those same clients for Ensuant. TIBCO is further informed and believes
and thereon alleges that Defendants are wrongfully using trade secrets and confidential information
concerning TIBCO customer preferences to obtain new business from those same clients for
Ensuant. TIBCO is further informed and believes and thereon alleges that Defendants are disclosing
and/or misusing confidential information regarding TIBCO's employees and operations. TIBCO is
further informed and believes and thereon alleges that Defendants are making disparaging and
libelous statements regarding TIBCO to such customers and prospective customers, including
statements that TIBCO does not have sufficient personnel and/or resources to perform adequate
services to support TIBCO software.
42. Ensuant has marketed and continues to market its products and services to current
Business Events clients in a variety of industries.
G. Defendants' Illegal Actions Have Harmed And Threaten To Continue Harming
TIBCO.
43. Business Events is the most valuable product among those offered by TIBCO's
Quantum Leap Group. Business Events accounted for tens of millions of dollars in revenue in 2009,
and this figure is expected to increase significantly in 2010 and beyond.
44. Business Events is also important because it drives sales of other TIBCO software
products and services. The value of Business Events as a sales tool to TIBCO is incalculable but
most certainly in the millions of dollars.
45. TIBCO has already incurred damages as a result of Defendants' actions. Should
Defendants' unlawful acts continue, the damages to TIBCO could be in the millions of dollars.
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Moreover, Defendants' wrongful acts have caused, and continue to cause, irreparable harm to
TIBCO and its business.
FIRST CAUSE OF ACTION
(AGAINST ALL DEFENDANTS)
Misappropriation Of Trade Secrets
46. TIBCO repeats and realleges each and every allegation in the foregoing paragraphs as
though fully set forth herein.
47. TIBCO enjoys an advantage over potential competitors in the industry for complex
events processing ("CEP") software and related services because of its creation of highly
confidential trade secrets, including but not limited to the TIBCO Trade Secrets. TIBCO has taken
reasonable efforts under the circumstances to preserve the confidentiality of the TIBCO Trade
Secrets.
48. Defendants Arora, Petracek and Gowda had access to the TIBCO Trade Secrets while
employed at TIBCO and were contractually and/or otherwise obligated to maintain the secrecy of
those trade secrets. Defendants Arora, Petracek and Gowda contractually agreed, among other
things, that TIBCO's trade secrets would be used by them only in connection with their work for
TIBCO and not disclosed or revealed in any manner to any other person or entity. TIBCO is
informed and believes and thereon alleges that Defendants Ensuant and Does 1-100 acquired TIBCO
Trade Secrets through improper means and/or from persons they knew or reasonably should have
known owed a duty to maintain their secrecy. TIBCO is further informed and believes and thereon
alleges that all Defendants subsequently used this information for their own benefit and not on
behalf ofTIBCO.
49. TIBCO is informed and believes and thereon alleges that Defendants used and are
presently using TIBCO's Trade Secrets without TIBCO's express or implied consent, authorization
-15 - US_ACTIVE-106637593.3-LMBONACH
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or authority.
50. Defendants obtained the trade secret information described above directly or indirectly
from TIBCO and not from Defendants' own independent research and efforts.
51. Each of the acts of misappropriation was done willfully and maliciously by
Defendants, thereby entitling TIBCO to exemplary damages pursuant to California Civil Code
3426.3(c).
52. As a direct and proximate cause of Defendants' misappropriation of TIBCO's Trade
Secrets, Defendants have been unjustly emiched and TIBCO has sustained damages in an amount to
be proven at trial.
53. TIBCO has also suffered irreparable harm as a result of Defendants' threatened and
actual misappropriation, and TIBCO will continue to suffer irreparable injury that cannot be
adequately remedied at law unless Defendants, their agents, employees, and all other persons acting
in concert with them, are enjoined from engaging in any further such acts of misappropriation.
SECOND CAUSE OF ACTION
(AGAINST PUNEET ARORA)
Breach of Contract
54. TIBCO incorporates and realleges the allegations set forth in the foregoing paragraphs
as if fully set forth herein.
55. On April 12, 1999 in San Jose, California, Arora entered into the Arora Employment
Agreement with TIBCO. (Ex. A.)
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56. The Arora Employment Agreement contains a section prohibiting the solicitation of
TIBeO employees. Under this section, Arora agreed "that during the term of this Agreement and for
a period of (1) year thereafter, [he] shall not, directly or indirectly, either for himself or for any other
person ... , corporation or other legal entity, solicit any then employee of [TIBeO] to leave the
employment ofTIBeO." (Ex. A.)
57. On multiple occasions since his resignation from TIBeO on July 29,2009, Arora has
contacted various TIBeO employees about working at Ensuant. Among the TIBeO employees he
has contacted are Petracek, Gowda, and Leong-all of whom have since resigned from TIBeO.
Petracek and Gowda are now working for Ensuant. TIBeO is informed and believes and thereon
alleges that Arora has continued wrongfully to solicit TIBeO employees in violation of his
contractual obligations to TIBeO.
58. As part of the Arora Employment Agreement, Arora also agreed to the terms of the
Non-Disclosure/Assignment Agreement ("Non-Disclosure Agreement") attached as Exhibit A to the
Arora Employment Agreement. Pursuant to Section III of the Non-Disclosure Agreement, Arora
agreed to hold certain defined "Proprietary Information" in confidence and not to disclose or reveal,
in any manner, such information to any person or entity "while employed with [TIBeO] and
thereafter." Section I of the Non-Disclosure Agreement broadly defines "Proprietary Information"
to include the following:
(A) Trade secrets and other proprietary and confidential information which are owned by
[TIBeO] and which have to do with:
(1) the operation of [TIBeO' s] business, consisting, for example, and not
intending to be inclusive, of its lists or other identifications of clients or prospective clients of
[TIBeO] (and key individuals employed or engaged by such clients or prospective clients), the
nature and type of services rendered to such clients (or proposed to be rendered to prospective
-17 - US_ACTIVE106637593.3--LMBONACH
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clients), fees charged or to be charged, proposals, inventions, methodologies, algorithms, formulae,
processes, compilations of information, form and content of data bases, designs, drawings, models,
equipment, results of research proposals, job notes, reports, records, specifications, software,
firmware and procedures used in, or related to, [TIBCO's] products; and
(2) [TIBCO's] relations with its employees, including without limitation, salaries, job
classifications and skill levels;
(B) Financial, sales and marketing data compiled by [TIBCO] as well as [TIBCO's]
financial, sales and marketing plans and strategies, customer lists and non-public pricing;
(C) All ideas, concepts, information and written material about a client disclosed to
[Arora] by [TIBCO], or acquired from a client of [TIBCO], and all financial, accounting, statistical,
personnel and business data and plans of clients, are and shall remain the sole and exclusive property
and proprietary information of [TIBCO], or said client;
(D) Any other information designated by [TIBCO] to be confidential, secret and/or
proprietary.
59. Arora has breached the Arora Employment Agreement, including by soliciting TIBCO
employees to leave the employment of TIBCO. On information and belief, Arora has further
breached the Arora Employment Agreement by using and/or disclosing TIBCO's confidential and
proprietary information for Defendants' own benefit and not for the benefit of TIBCO, without
TIBCO's consent or authorization.
60. Arora's acts have been deliberate, willful, intentional, and in bad faith, with full
knowledge and in conscious disregard of his duties under the Arora Employment Agreement, with
intent to leverage TIBCO's substantial investment in its employees for his own benefit as Founder
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and CEO of Ensuant.
61. Because of Arora's breaches, which are continuing at least to the date of this First
Amended Complaint, TIBCO has been deprived of the benefits of its investment in Petracek,
Gowda, and Leong. Due to the loss of these employees, TIBCO has incurred, in addition to the loss
of personnel investments, additional costs to hire and train replacements. In addition, TIBCO has
been, and continues to be, seriously and irreparably damaged by Arora's violations of his contractual
obligations to maintain TIBCO's confidential information in secrecy.
62. As a result of these alleged actions, Arora has been unjustly enriched and TIBCO has
been injured and damaged. Accordingly, TIBCO is entitled to money damages to compensate it for
the losses caused by Arora's breaches of the Arora Employment Agreement.
63. TIBCO has also suffered irreparable harm as a result of Arora's breaches of his
confidentiality obligations to TIBCO, and TIBCO will continue to suffer irreparable injury that
cannot be adequately remedied at law unless Arora, his agents, employees, and all other persons
acting in concert with him, are enjoined from engaging in any further such breaches.
THIRD CAUSE OF ACTION
(AGAINST BASANTH GOWDA)
Breach of Contract
65. On or about August 31,2005, Gowda entered into an Employment Agreement, which
attached a Non-Disclosure/Assignment Agreement as Exhibit A ("Gowda Agreement"). A true and
correct copy of the Gowda Agreement is attached hereto as Exhibit D.
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66. The Gowda Agreement contains a section prohibiting the solicitation of TIBCO
employees. Under Section V of the Gowda Agreement, Gowda agreed, among other things:
"During the term of this Agreement and for a period of one (1) year thereafter in any county in the
United States in which TIBCO does business including a list of such counties available from Human
Resources, I shall not, directly or indirectly, either for myself or for any other person, firm,
corporation or other legal entity, solicit any then employee of TIBCO to leave the employment of
TIBCO .... "
67. TIBCO is informed and believes and thereon alleges that, since his resignation from
TIBCO on or about May 7, 2010, Gowda has contacted one or more TIBCO employees about
working at Ensuant, in violation of his contractual obligations to TIBCO.
68. As part of the Gowda Agreement, Gowda also agreed to the protect TIBCO's
confidential information. Among other things, under Section I of the Gowda Agreement, Gowda
agreed:
I. PROPRIETARY INFORMATION. "Proprietary Information" means the
following information relating to TIBCO's business:
(A) Trade secrets and other proprietary and confidential information, including
without limitation, software, formulas, designs, drawings, customer data, pricing, methods,
processes, machines, discoveries, technologies, computer programs and systems, research, works of
authorship, improvements, developments, employee lists, salaries, job classifications, skill levels,
financial, business, and marketing data, plans and strategies, but excluding information that is not
generally known to the public through no fault of mine and which cannot be discovered or replicated
by a third party without substantial expense; and
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(B) Any other information designated by TIBeO to be confidential, secret and/or
proprietary.
"Proprietary Information" also means all ideas, concepts, information and written material
about a customer or any other third party with whom TIBeO does business, disclosed to me by
TIBeO, or acquired from a customer or any other third party with whom TIBeO does business,
excluding information that is not generally known to the public through no fault of mine and which
cannot be discovered or replicated by a third party without substantial expense.
All Proprietary Information that comes into my possession while employed by TIBeO is the
exclusive property of TIBeO. I will use the Proprietary Information only in connection with my
work for TIBeO. I will, while employed with TIBeO and thereafter, hold the Proprietary
Information in confidence and will not disclose or reveal any Proprietary Information to any person
or entity.
69. Gowda has breached the Gowda Agreement, including by soliciting one or more
TIBeO employees to leave the employment of TIBeO. On information and belief, Gowda has
further breached the Gowda Agreement by using and/or disclosing TIBeO's confidential and
proprietary information for Defendants' own benefit and not for the benefit of TIBeO, without
TIBeO's consent or authorization.
70. Gowda's acts have been deliberate, willful, intentional, and in bad faith, with full
knowledge and in conscious disregard of his duties under the Gowda Agreement.
71. Because of Gowda's breaches of the Gowda Agreement, TIBeO has been damaged in
an amount to be proven at trial. Accordingly, TIBeO is entitled to money damages to compensate it
for the losses caused by Gowda's breaches of the Gowda Agreement.
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72. TIBCO has also suffered irreparable harm as a result of Gowda's breaches of his
confidentiality obligations to TIBCO, and TIBCO will continue to suffer irreparable injury that
cannot be adequately remedied at law unless Gowda, his agents, employees, and all other persons
acting in concert with him, are enjoined from engaging in any further such breaches.
FOURTH CAUSE OF ACTION
(AGAINST PUNEET ARORA, ENSUANT, INC., AND DOES 1 THROUGH 100)
Tortious Interference with Contract (Petracek Employment Agreement)
74. On December 6, 2001 in Calgary, Canada, Nelson Petracek entered into the Petracek
Agreement with TIBCO. Pursuant to section 7(t), the Petracek Agreement "shall be construed in
accordance with, and governed by, the laws of the Province of Ontario and the laws of Canada .... "
A true and correct copy of this agreement is attached hereto as Exhibit C.
75. As part of the Petracek Agreement, Petracek agreed to the protect TIBCO's
confidential information. Among other things, under Section 3 of the Petracek Agreement, Petracek
agreed, both during and after his employment with TIBCO, to: (a) "keep in confidence all
Confidential Information and not, directly or indirectly, disclose any Confidential Information to any
person whatsoever"; (b) "not, directly or indirectly, use any Confidential Information for my own
benefit or for the benefit or any person or business whatsoever"; and (c) "not, directly or indirectly,
use or copy any Confidential Information for any reason." Section 2 of the Petracek Agreement
defines "Confidential Information."
76. At some point before or following his resignation from TIBCO, Petracek joined
Ensuant as Co-Founder and Vice President Field Operations. Upon information and belief,
Defendants hired Petracek with the expectation that he would solicit further TIBCO employees to
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leave their employment with TIBCO and join Ensuant.
77. TIBCO is informed and believes and thereon alleges that Defendants knew of the
terms and conditions of the Petracek Agreement. Having served in various managerial and
executive positions at TIBCO (including Senior Member of the Technical Staff, ArchitectlPrincipal
Engineer, Principal Architect, Senior Architect, Vice President Engineering, Vice President Strategic
Technology Group, and finally North America Chief Technology Officer) from December 8, 1998 to
July 29, 2009, TIBCO is informed and believes and thereon alleges that Arora knew that newly-
hired TIBCO employees enter into employment agreements which typically include nonsolicitation
provisions, and specifically that the Petracek Agreement included such provisions.
78. TIBCO is informed and believes and thereon alleges that, with Defendants'
knowledge, support, and encouragement, Petracek has solicited one or more TIBCO employees.
79. Defendants' wrongful and malicious conduct has caused andlor contributed to
Petracek's breach of the Petracek Agreement. As a direct and proximate result, TIBCO has suffered
damages in an amount to be proven at trial.
80. Defendants' conduct was willful, malicious, oppreSSIve, and fraudulent, entitling
TIBCO to an award of punitive damages.
81. Defendants threaten to and, unless restrained, will disrupt TIBCO's business and
reputation to TIBCO's great and irreparable injury, for which damages would not afford adequate
relief, in that they would not completely compensate for the injury to TIBCO's business reputation
and goodwill.
-23 - US_ACTIVE-106637593.3-LMBONACH
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FIFTH CAUSE OF ACTION
(AGAINST PUNEET ARORA, ENSUANT, INC., AND DOES 1 THROUGH 100)
Tortious Interference with Contract (Gowda Agreement)
83. On August 31, 2005 in Dunwoody, Georgia, Basanth Gowda entered into the Gowda
Agreement with TIBCO. Pursuant to section XII, the Gowda Agreement "shall be governed by and
construed in all respects in accordance with the laws of the state of California." A true and correct
copy of this agreement is attached hereto as Exhibit D.
84. The Gowda Agreement contains a provision prohibiting the solicitation of TIBCO
employees. Under this section, Gowda agreed that "during the term of this Agreement and for a
period of one (1) year thereafter in any county in the United States in which TIBCO does business ..
. I shall not, directly or indirectly, either for myself or for any other person ... , corporation or other
legal entity, solicit any then employee ofTIBCO to leave the employment ofTIBCO .... " (Ex. D.)
85. At some point following his resignation from TIBCO, Gowda joined Ensuant. Upon
information and belief, Defendants hired Gowda with the expectation that he would solicit further
TIBCO employees to leave their employment with TIBCO and join Ensuant.
86. TIBCO is informed and believes and thereon alleges that Defendants knew the terms
and conditions of the Gowda Agreement. Having served in various managerial and executive
positions at TIBCO (including Senior Member of the Technical Staff, Architect/Principal Engineer,
Principal Architect, Senior Architect, Vice President Engineering, Vice President Strategic
Technology Group, and finally North America Chief Technology Officer) from December 8, 1998 to
July 29, 2009, TIBCO is informed and believes and thereon alleges that Arora knew that newly-
-24- US-ACTIVE-106637593.3-LMBONACH
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hired TIBeO employees enter into employment agreements which typically include nonsolicitation
provisions, and specifically that the Gowda Agreement included such provisions.
87. TIBeO is informed and believes and thereon alleges that, with Defendants'
knowledge, support, and encouragement, Gowda has solicited one or more TIBeO employees.
88. Defendants' wrongful and malicious conduct has caused and/or contributed to
Gowda's breach of the Gowda Agreement, including its employee nonsolicitation provisions. As a
direct and proximate result, TIBeO has suffered damages in an amount to be proven at trial.
89. Defendants' conduct was willful, malicious, oppreSSIve, and fraudulent, entitling
TIBeO to an award of punitive damages.
90. Defendants threaten to and, unless restrained, will cause TIBeO great and irreparable
injury, for which damages would not afford adequate relief, in that they would not completely
compensate for the injury to TIBeO's business, reputation and goodwill.
SIXTH CAUSE OF ACTION
(AGAINST ALL DEFENDANTS)
Unfair Competition under Cal. Bus. & Prof. Code 17200
91. TIBeO incorporates and realleges the allegations set forth in the foregoing paragraphs
92. Defendants' activities in connection with the solicitation of TIBeO employees,
solicitation of TIBeO customers, and unfair competition with TIBeO are outside the boundaries of
fair competition.
93. Defendants' unlawful, unfair, fraudulent, and deceptive business acts and practices
-25- US ACTIVE106637593.3-LMBONACH
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constitute unfair competition in violation of the California's Unfair Trade Practices Act, Business
and Professions Code Section 17200.
94. Defendants' solicitations of TIBCO's clients violate California laws against tortious
interference with contract.
95. In addition, TIBCO is informed and believes and thereon alleges that each of
Defendants has made false and defamatory statement regarding TIBCO's business and/or services,
including but not limited to making statements to clients and potential clients and falsely stating that
TIBCO does not have sufficient personnel and/or resources to perform adequate services to support
TIBCO software and that TIBCO's products are unstable.
96. TIBCO is informed and believes and thereon alleges that each of Defendants knew the
falsity of the statements at the time the statements were made. TIBCO is further informed and
believes and thereon alleges that the statements were made with malice and specific intent to injure
TIBCO's business and business reputation.
97. As a result of these alleged actions, Defendants have been unjustly enriched and
TIBCO has been injured and damaged. Unless Defendants' alleged actions are enjoined, TIBCO
will continue to suffer injury and damage, which includes financial losses as well as loss of
goodwill.
98. Pursuant to California Business and Professions Code Section 17203, TIBCO is
entitled to preliminary and permanent injunctive relief ordering Defendants to cease this unfair
competition, as well as disgorgement of all of Defendants' profits associated with this unfair
competition.
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PRAYER FOR RELIEF
WHEREFORE, in consideration of the foregoing, PlaintiffTIBCO Software Inc. respectfully
requests that this Court enter a judgment in Plaintiff s favor and against Defendants Ensuant, Inc.,
Puneet Arora, Nelson Petracek, Basanth Gowda, and Does 1 through 100, inclusive, as follows:
1. A judgment in favor of TIBCO and against Defendants on all causes of action;
2. A preliminary and permanent injunction enjoining Defendants, their agents,
representatives, employees, and all persons in active concert or participation with them, from the
following:
(a) Refusing to promptly return any and all TIBCO property in their possession,
including any and all ofTIBCO's confidential information and materials, and specifically including
but not limited to any ofTIBCO's computers (including any laptop computers), any source code
relating to any ofTIBCO's products, any product descriptions, financial data or sales or marketing
materials, and any other information belonging to TIBCO;
(b) Using or disclosing in any manner TIBCO's confidential, proprietary and trade
secret information, including but not limited to TIBCO's source code, know-how and other
confidential and proprietary information regarding TIBCO's Business Events and other software;
confidential information regarding the details of TIBCO customer implementations of Business
Events and/or other software; product development plans, confidential sales strategies, marketing
plans and business plans; confidential information regarding TIBCO's customers and potential
customers; confidential financial information regarding TIBCO and its business; and confidential
information regarding TIBCO employees;
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(c) Contacting, soliciting or transacting any business with or for any TIBCO clients
using any ofTIBCO's trade secrets or confidential information;
(d) Making any disparaging statements about TIBCO; and
(e) Soliciting, inducing, recruiting or otherwise encouraging TIBCO's employees to
leave their employment with TIBCO; and
(f) any further acts of unfair competition;
3. An order requiring the Defendants to account for all gains, profits and advantage
derived from their misappropriation of TIBCO's confidential, proprietary and/or trade secret
information;
4. An order requiring the Defendants to disgorge all profits earned from their unlawful
conduct, together with restitution to TIBCO arising from Defendants' unlawful conduct;
5. An order requiring specific enforcement of the employee non-solicitation and
confidentiality terms of the Arora Agreement, Petracek Agreement, and Gowda Agreement;
6. An order awarding TIBCO damages according to proof;
7. An order awarding TIBCO exemplary and punitive damages to the extent allowed by
law and in an amount according to proof;
8. An order awarding TIBCO costs of suit, prejudgment and post-judgment interest, and
reasonable attorneys' fees; and
1 9. Granting TIBeO such other and further relief as the eourt may deem just and proper.
2
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DATED: July 25,2011.
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Scott D. Baker (SBN 84923)
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William R. Overend (SBN 180209)
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Attorneys for Plaintiff TIBeO Software Inc.
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EXHIBIT A
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT is entered into as of the day of
j\PR\L 1999, by and between !(,Hj , (the "EMPLOYEE")
and TIBCO Software Inc. (the nEMPLOYER").
I. EMPLOYMENT
EMPLOYER employs EMPLOYEE, and EMPLOYEE accepts employment with
EMPLOYER, on the terms and conditions set forth in this Agreement.
II. TERMS OF EMPLOYMENT
The employment relationship between EMPLOYEE and EMPLOYER in an at wi"
basis may be terminated as follows:
(A) During the first ninety (90) days of employment, either party may
terminate without prior notice and for any reason whatsoever, or for no
reason and without cause; or
(B) After the first ninety (90) days of employment, either party may terminate
for any reason whatsoever, or for no reason and without cause, upon the
giving of (I) two weeks' written notice to the other party or (ii) pay equal to
two (2) weeks of EMPLOYEE's salary in lieu of such notice; or
(C) At any time, EMPLOYER may terminate EMPLOYEE without prior notice
if EMPLOYEE materially fails to perform any obligation or duty owed to
EMPLOYER.
III. DUTIES
EMPLOYEE shall perform such tasks and duties as may be assigned by
EMPLOYER, from time to time. At all times EMPLOYEE shall follow all of
EMPLOYER's legal instructions and directions and shall abide by all of
EMPLOYER's rules and procedures in force from time to time while employed.
EMPLOYEE shall devote his full time, attention, skill and efforts to the tasks and
duties assigned by EMPLOYER. Without the prior written consent of
EMPLOYER, EMPLOYEE shall not provide services, for compensation, to any
other person or business entity while employed by EMPLOYER.
IV. COMPENSATION
As compensation for all services to be rendered by EMPLOYEE to EMPLOYER,
EMPLOYEE shall be paid a salary at the annual rate of
. . . . " . . , ~ ~ = __ ----,,---,..-_. Said salary shall be payable in accordance with
EMPLOYER's standard procedures. EMPLOYER shall withhold from any
amounts payable as compensation all federal, state, municipal or other taxes as
are required by any law, regulation or ruling.
(A) EMPLOYEE understands and agrees that EMPLOYEE's salary may be
adjusted by EMPLOYER prospectively, and at its sole discretion from time
to time, without affecting the remaining terms of this Agreement.
(8) EMPLOYEE understands and agrees that any other compensation that
may be paid to EMPLOYEE for services rendered, or to be rendered,
(whether by way of any incentive payment, opportunity to acquire stock or
any other form of additional compensation) shall rest in the sole discretion
of EMPLOYER.
V. PROPERTY RIGHTS; DUTY TO DISCLOSE
EMPLOYEE hereby acknowledges and agrees. to be bound by the provisions of
the EMPLOYER's "Non-Disclosure/Assignment Agreement" attached hereto as
Exhibit A and made a part hereof by this reference as though set forth in full
herein. The provisions of Exhibit A shall survive any termination of this
Agreement.
VI. NONSOLICITATION OF EMPLOYEES
EMPLOYEE specifically agrees that during the term of this Agreement and for a
period of one (1) year thereafter, EMPLOYEE shall not, directly or indirectly,
either for himself or for any other person, firm, corporation or other legal entity,
solicit any then employee of EMPLOYER to leave the employment of
EMPLOYER.
VII. NO ASSIGNMENT
This Agreement may not be assigned by EMPLOYEE without the written consent
of EMPLOYER. This Agreement shall be binding on the heirs, executors,
administrators, personal representatives, successors and assigns of EMPLOYEE
and EMPLOYER.
. VIII. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with and subject to the laws of the State where the EMPLOYEE was
principally rendering services for EMPLOYER.
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IX. NOTICES
All notices or other communications provided for by this Agreement shall be
made in writing and shall be deemed properly delivered when (i) delivered
personally or (ii) by the mailing of such notice by registered or certified mail,
postage prepaid, to the parties at the addresses set forth on the signature page
of this Agreement (or to such other address as one party designates to the other
in writing).
X. ENTIRE AGREEMENT AND WAIVER
This Agreement is the entire agreement between the parties relating to
EMPLOYEE's employment. It supersedes all prior agreements, arrangements,
negotiations and understandings related thereto. No waiver of any term,
provision or condition of this Agreement shall be deemed to be, or shall
constitute, a waiver of any other term, provision of condition herein, whether or
not similar. No such waiver shall be binding unless in writing and signed by the
waJving party.
XI. AMENDMENTS
No supplement, modification or amendment of any term, provision or condition
of this Agreement shall be binding or enforceable unless evidenced in writing
executed by the parties hereto.
XII. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the
sanie instrument.
XIII. REFORMATION/SEVERABILITY
If any provision of this Agreement is declared invalid by any tribunal, then such
provision shall be deemed automatically adjusted to the minimum extent
necessary to conform to the requirements for validity as declared at such time
and, as so adjusted, shall be deemed a provision of this Agreement as though
originally included herein. In the event that the provision invalidated is of such a
nature that it cannot be so adjusted, the provision shall be deemed deleted from
this Agreement as though such provision had never been included herein. In
either case, the remaining provisions of this Agreement shall remain in effect.
After carefully reading and considering the foregoing provisions and Exhibit A,
EMPLOYEE has voluntarily signed this Agreement on as of the date first above
written.
EMPLOYER:
EMPLOYEE:
3
TISCO Software Inc.
Name of EMPLOYER E PLOYEE Signature
3165 Porter Drive /12 .. l.f rz L IN u or) R.p
Address Address
Palo Alto. CA 94304
SM <Ie s. c,p.. "1 S-11N
City, State Zip'
( "fOo) Cllt.--r- ~ ~ A- 6:)-
Telephone
4
EXHIBIT A
NON-DISCLOSURE/ASSIGNMENT AGREEMENT
~ : - - - _ , - - - ' ("EMPLOYEE") is employed, or is being hired, by TISCO
Software Inc. (lithe COMPANY") and may learn, or has learned, Information
which the COMPANY keeps secret from its competitors and others. As a
condition of employment or continued employment, EMPLOYEE agrees to the
terms of this Agreement.
I. PROPRIETARY INFORMATION DEFINED
The term "Proprietary Information" means the following classes of information
relating to the COMPANY's business:
(A) Trade secrets and other proprietary and confidential information which are
owned by the COMPANY and which have to do with:
(8)
(C)
(1) the operation of the COMPANY's business, consisting, for
example, and not intending to be inclusive, of its lists or other
identifications of clients or prospective clients of the COMPANY
(and key individuals employed or engaged by such clients or
prospective clients), the nature and type of services rendered to
such clients (or proposed to be rendered to prospective clients),
fees charged or to be charged, proposals, inventions,
methodologies, algorithms, formulae, processes, compilations of
information, form and content of data bases, designs, drawings,
models, equipment, results of research proposals, job notes,
reports, records, specifications, software, firmware and procedures
used in, or related to, the COMPANY's products; and
(2) the COMPANY's relations with its employees, including without
limitation, salaries, job classifications and skillieve/s;
Financial, sales and marketing data compiled by the COMPANY as well
as the COMPANY's financial, sales and marketing plans and strategies,
customer lists and non-public pricing;
All ideas, concepts, information and written material about a client
disclosed to EMPLOYEE by the COMPANY, or acquired from a client of
the COMPANY, and all financial, accounting, statistical, personnel and
business data and plans of clients, are and shall remain the sale and
exclusive property and proprietary information of the COMPANY, or said
client;
5
(D) Any other information designated by the COMPANY to be confidential,
secret and/or proprietary.
II. OBLIGATION TO KEEP CONFIDENTIAL
EMPLOYEE acknowledges and agrees that all Proprietary Information that
comes into EMPLOYEE's possession (including any information originated or
developed by EMPLOYEE while employed by the COMPANY) is secret and is
the exclusive property of the COMPANY. EMPLOYEE agrees to use the
Proprietary Information only in connection with EMPLOYEE's work for the
COMPANY. EMPLOYEE agrees, while employed with the COMPANY and
thereafter, to hold the Proprietary Information in confidence and agrees not to
disclose or reveal, in any matter, any Proprietary Information to any person or
entity.
III. RETURN OF INFORMA"nON
EMPLOYEE agrees, upon the request of the COMPANY or upon leaving the
employ of the COMPANY, to return promptly to the COMPANY the original and
all copies of any documents, reports, notes or other materials incorporating or
reflecting, in any way, any Proprietary Information in the possession or under the
control of EMPLOYEE.
IV. INVENTION BELONGS TO THE COMPANY
EN/PLOYEE acknowledges and agrees that any inventions, discoveries or
improvements which EMPLOYEE has conceived or made or may conceive or
make during EMPLOYEE's employment with the COMPANY, whether made
individually or jointly with others, which:
(1) relate or pertain to, or are in any way connected with, the systems,
products, apparatus or methods utilized, or are the subject of
research or development (actual or anticipated) by the COMPANY;
or
(2) utilize equipment, supplies, facilities or Proprietary Information
belonging to the COMPANY (collectively the "Inventions" shall be
the sole exclusive property of the COMPANY and the Inventions
shall be deemed to be works for hire.
(A) EMPLOYEE agrees to make prompt and full disclosure to the COMPANY
of all inventions, discoveries or improvements made by EMPLOYEE
during the term of the Agreement, solely or jOintly with others, whether or
not such invention, discovery or improvement will actually become the
property of the COMPANY pursuant to this Agreement. EMPLOYEE
agrees to make such disclosures with the understanding and the
agreement of the COMPANY that, as to any invention, discovery or
6
improvement to which the COMPANY is not entitled, the information
disclosed will be received and held strictly in confidence by the
COMPANY and that such disclosure is for the sole purpose of determining
whether or not rights to such invention, discovery or improvement is the
property of the COM PANY.
(8) To the extent EMPLOYEE would be deemed to be an owner of any of the
rights in the Invention, EMPLOYEE hereby assigns to the COMPANY all
such rights in the Inventions. EMPLOYEE hereby agrees to execute and
sign any and all applications, assignments or other instruments which the
COMPANY may deem necessary in order to enable it, at its expense, to
apply for, prosecute and obtain Letters of Patent, trademarks, copyright or
other legal protections in the United States or foreign countries for the
Inventions, or in order to assign or convey to or vest in the COMPANY the
sole and exclusive right, title and interest in and to the Inventions.
(C) The obligations contained in this Paragraph 4, except for the requirements
as to disclosure, do not apply to any rights EMPLOYEE may have
acquired in connection with an invention, discovery or improvement for
which no equipment, supplies, facility or trade secret information of the
COMPANY was used and which was developed entirely on the
EMPLOYEE's own time, and provided that such invention, discovery or
improvement does not: (I) relate directly or indirectly to the business of
the COMPANY or to the COMPANY's actual or demonstrable anticipated
research or development; and (Ii) result from any work performed by
EMPLOYEE for, or on behalf of, the COMPANY.
V. INJUNCTIVE RELIEF
EMPLOYEE acknowledges and agrees that, because any use or disclosure of
the COMPANY's Proprietary Information other than for the COMPANY's benefit
and without the COMPANY's prior written consent would cause irreparable injury
to the COMPANY, in addition to any other remedies available, will be entitled to
obtain an injunction to enforce the provisions of this Agreement.
VI. REFORMATION/SEVERABILITY
If any provision of this agreement is declared invalid by any tribunal, then such
provision shall be deemed automatically adjusted to the minimum extent
necessary to conform to the requirements for validity as declared at such time
.and, as so adjusted, shall be deemed a provision of this Agreement as though
originally included herein. In the event that the provision invalidated is of such a
nature that It cannot be so adjusted, the provision shall be deemed deleted from
this Agreement as though such provision had never been included herein. In
either case, the remaining provisions of this Agreement shall remain in effect.
7
EXHIBITB
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BTl 8 CO
The Power of Now'
July 29, 2009
Puneel Arora
1582 Wright Avenue
Sunnyvale, CA 94087
Dear Puneet,
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This is your exit package based on your resignation from TIBCO Software Inc. effective July 29, 2009.
YOLI will receive your final paycheck which will include any accrued and unused vacation time and allY
other remunerntion of any sort to which you are entitled. In addition, if you have earned any commissions,
a check will be mailed to your home on the regularly scheduled commissions pay date.
Enclosed is a document that provides detailed benefits and other relevant information. This document
also includes detailed information regarding your right to continuc your health coverage under the
Consolidation and Omnibus Reconciliation Act ("COBRA"). Also enclosed is a SaJes Certification.
Please sign, date, initial and return to me via confidential fax number listed below.
You have certain ongoing duties to rlBCO pursuant to the terms of your Employment Agreement. You
agreed, among other things, not to improperly use or disclose proprietary information ofTlBCO, either
during or after your employment with TIBCO. This proprietary information includes, without limitation,
non-public information regarding TIBCO's products, product documentation, marketing strategies,
product roadmaps. customers and prospects, competitive research and other related int'OImatiol). Upon
your lermination, you must return all of TISCO's property and confidential and proprietary information.
If you would like a copy of your Employment Agreement for a full description of your ongoing
ohliga(ions. please let me know.
In addition, it is TIBCO's policy to refer all reference checks to the Human Resources Department.
TrnCO will only confirm dates of employment and job title in connection with any reference checks.
Pleuse contact me if you have any questions.
Regards,
Lisa Winningham
Corporate Human Resources
3303 Hillview Avenue
Palo Alto, CA 94304
Phone: 650.846.5009
ConfidenLial fax: 650.846.1028
EXHIBIT C
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TIBCO SOFTWARE CANADA INC.
EMPLOYEE CONFIDENTIALITY, NON-COMPETITION
AND NON-SOLICITATION AGREEMENT
1. INTRODUCTION
Page I
This EMPLOYEE CONFIDENTIALITY, NON-COMPETITION AND NON-
SOLICITATION AGREEMENT (this "Agreementll) sets out and explains certain
obligations and responsibilities I have as an employee ofTIBCO Software Canada Inc.
("TIBCO") and confirms my agreement to abide by them.
2. DEFINITIONS
(a) Confidential Information: means all of the materials and information (whether or
not reduced to writing and whether or not patentable or protected by copyright)
provided by TIBCO or Tmco Software Inc. to me, or which is available to me
during the course of my employment with TIBCO, including, without limitation,
TmCO and TIBCO Software Inc. information concerning the following:
customer lists, past, present and potential customer information, records,
statistics, sales, training and promotional policies;
profits, costs, pricing and sales policies, marketing plans and strategies,
information relating to the distribution, sale or supply ofTIBCO's or mco
Software Inc.'s products andlor services;
records and other materials in the form of notes, letters, data, tapes, reference
items, models, sketches, blueprints, drawings and writings, in any way
relating to Confidential Information and any and all copies or extracts
thereof;
personnel information, including but not limited to, the names and
backgrounds of key personnel, personnel lists, information about
compensation and benefits, and performance evaluations of personnel;
Inventions, as defined below, and
any other materials or information related to TIBCO's, or TlBCO Software
Inc. 's, business which is not generally known to others;
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Page 2
regardless of whether such information is in paper or electronic format or any other
format.
(b) Inventions: means all copyrights, patents, industrial designs, trade-marks,
topographies, schematic drawings, designs, specifications, plans, trade secrets,
technology, inventions (patentable or unpatentable), improvements, ideas,
copyrightable works, techniques, know-how, concepts, discoveries, innovations,
processes, formulae or other intellectual property, which I make or discover by
myself or in conjunction with others while employed by TIBCO, which arise,
directly or indirectly, from my employment with TIBCO.
(c) Pre-employment Inventions: means any Inventions that I made prior to my
employment by TmCO.
3. COMMITMENT TO PROTECT CONFIDENTIAL INFORMATION
Tmco owns and has a valuable interest in the Confidential Information that it develops in
its operations.
As an employee ofTIBCO, I have access to this Confidential Information, which includes
information not generally known in the industry, which was discovered, developed or
obtained as a result of my employment with TIBCO .
. Accordingly, I agree as follows:
(a) I will, both during and after my employment with TmCO:
keep in confidence all Confidential Information and not, directly or indirectly,
disclose any Confidential fuformation to any person whatsoever;
not, directly or indirectly, use any Confidential Information for my own benefit
or for the benefit of any person or business whatsoever; and
not, directly or indirectly, use or copy any Confidential Information for any
reason;
except for the purpose of performing my duties as an employee of and only with the
consent ofTmCO.
(b) In the event of the termination of my employment I will promptly deliver to TIDCO
all Confidential Information in my possession and I will not take, copy or retain any
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Page 3
records and other materials in any way relating to any Confidential Infonnation
without TIBCO's prior written pennission.
(c) I confirm:
that I do not have in my possession Confidential Information belonging to others,
and therefore will not use or disclose same to TmCO during my employment,
and
that my employment will not require me to violate any obligation to or confidence
with any other party, including, without limitation, any previous employers.
(d) I agree to comply with any procedures that TIBCO may adopt from time to time to
preserve the confidentiality of any Confidential Information.
(e) I agree that the absence of any notice indicating confidentiality on any material will
not imply that it is not Confidential Information.
(f) Without granting any right or license, TmCO agrees that the obligations imposed
by this Section 3 on me shall not apply to information which:
at the time it is received is in the public domain;
subsequently comes into the public domain through no fault of mine;
is lawfully received by me from a third party on an unrestricted basis;
is already legitimately known to me prior to disclosure; or
is required by law to be disclosed; provided, however, that I shall first have given
prompt notice to TIBCO of any possible or prospective order or proceeding
pursuant to which any order may result; and TIBCO shall have been afforded a
reasonable opportunity to prevent or limit any such disclosure of any of the
Confidential Information.
4. COMMITMENT TO DISCLOSE INVENTIONS
(a) During my employment with TmCO and at any time thereafter, I will notify my
immediate supervisor promptly in writing of all Inventions.
(b) I agree that all Inventions shall be the sole property of TIBCO. I waive in whole any
moral rights I may have in each of the Inventions and any part or parts thereof,
Page 4
including but not limited to the right to the integrity of the work, the right to be
associated with the work as its author by name or under a pseudonym and the right
to remain anonymous. Such agreement to waive is applicable regardless of whether
the Inventions are considered works made in the course of employment or whether
they are copyrightable. I will assist the Company andlor its nominees (without
charge but at no expense to me) at any time and in every proper way to obtain for its
andlor their own benefit, patents and copyrights for all such Inventions anywhere in
the world and to enforce its andlor their rights in legal proceedings. As used herein,
the term "Inventions" includes, but is not limited to, all discoveries, improvements,
inventions, processes, developments, artworks, designs, know-how, data, computer
programs (including source code), materials, inventions and formulae, whether
patentable or unpatentable.
(c) I hereby assign to TIBCO all rights and interests in all such Inventions which pertain
to a business in which TIBCO is engaged, is reasonably expected to engage in, or in
which it has previously expressed an intention to enter, except any Pre-Employment
Inventions which I cannot assign to TIBCO because of a prior invention agreement
with:
---------------------------------------------------
which is effective until ________ ,
(d) I have set out below (if applicable) a complete list of all Pre-Employment Inventions,
including numbers of all applicable registrations or pending applications in all
applicable countries, and a brief description of all unpatented inventions or ideas,
which I made prior to my employment by TIBCO, which are to be excluded from
this Agreement.
(e) Every Invention disclosed to anyone other than TIBCO within six (6) months after
the termination of my employment with TIBCO will be presumed to be the property
ofTIBCO,.unless it is proved that such Invention was first made or conceived after
termination of my employment with TIBCO.
(f) During my employment with TIBCO and at any time thereafter, I will, at the request
and expense ofTIBCO, complete and return to TIBCO all documents necessary for
the preparation and filing of applications covering the registration of intellectual
property rights in Inventions in all countries, as well as perform all other acts which
TIBCO may deem necessary or advisable for the purpose of protecting or
recognizing TIBCO's rights to same.
(g) I acknowledge that TIBCO from time to time may have agreements with other
persons or with the Canadian government or its agencies that impose obligations or
restrictions on TIBCO regarding Inventions made during the course of work under
such agreements or regarding the confidential nature of such work. I agree to be
( ; . ' ~ ' : \
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Page 5
bound by all such obligations or restrictions and to take all action necessary to
discharge the obligations TIDCO may have under such agreements.
(h) Upon the tennination of my employment with TIBCO, I agree to surrender promptly
to TIBCO all records or other evidence of any fuventions.
5. NON-COMPETITION AND NON-SOLICITATION
(a) I agree that for a period of one year following the termination of my employment,
regardless ofthe manner of such termination, I will not directly or indirectly solicit
business from any customer or potential customer of TIBCO which was served or
solicited by TIDCO within the eighteen months immediately preceding the
termination in regards to goods competitive with TIBea.
(b) I further agree that for a period of one year following the termination of my
employment, regardless of how the termination should occur, I will not directly or
indirectly hire or take away or cause to be hired or taken away any employee of
TIDCO or, following the termination of employment, any employee who was in the
employ of TIBCO during the six months preceding termination.
(c) I acknowledge and confirm that the scope of these covenants are in all respects and
particularly in respect of time and subject matter, no more than is reasonable to
protect TIBCO.
6. INJUNCTIVE RELIEF
(a) I understand and agree that the damages which TIBCO might suffer from my
violation of any of my obligations listed in this Agreement would be difficult or
impossible to measure and that TmCO is entitled to, in addition to all other
remedies it may have, injunctive relief for any such violation (including interim,
interlocutory and permanent injunctive relief).
7. GENERAL AGREEMENT PROVISIONS
(a) Should any provision in this Agreement be determined by a court to be invalid, such
provision will be severable from this Agreement and the validity of the other
provisions shall not be affected since they constitute separate and distinct agreements.
(,":<::""
\
.......
Page 6
(b) The failure ofTmCO to require the performance of any term of this Agreement, or
the waiver by TIBCO of any breach of this Agreement by me shall not prevent a
subsequent exercise or enforcement of such terms or be deemed a waiver of any
subsequent breach of the same or any other term of this Agreement.
(c) This Agreement shall be binding upon me, irrespective of the reason for the
termination of my employment and whether or not such termination is for cause,
should my employment be terminated.
(d) I acknowledge that I have had the time to review this Agreement and to obtain
independent legal advice in connection with this Agreement and its execution. I
understand fully its contents and have signed it freely and voluntarily. I acknowledge
that this Agreement is reasonable and understand that it is necessary to protect the
legitimate interests ofTIBCO.
(e) The tenns and conditions of this Agreement can only be modified by the written
agreement ofthe parties.
(f) This Agreement shall be construed in accordance with, and governed by, the laws of
the Province of Ontario and the laws of Canada applicable therein, without reference
to conflicts of laws. The courts of Ontario shall have exclusive jurisdiction over all
disputes that may arise between the parties arising from this Agreement.
, this JL day of 200J.
[INSERT EMPLOYEE'S NAME HERE)
Signature:
.1.

Name:
Address:
< ' ~ \
.... : ......
Page 7
LIST OF PRE-EMPLOYMENT INVENTIONS (if applicable)
Title of Document
(including application
number and registration
number and COWltry
where filed)
Date of Document Name of Witness on Document
BriefDescription(s) of All of Employee's Pre-Employment Unpatented Inventions Or Ideas
SIGNED:
Nelson Petracek
DATED:
rue. o
.'
G:IZZZCJBIZZZIConfidAam\ConfidNon-COI11l>Aim loasfonn do<:
EXHIBITD
TIBCO
The Power of Now""
EMPLOYMENT AGREEMENT
As a condition of my employment with Software Inc. or its subsidiary (''TIBCO''), and in consideration of my employment with TIBCO and my receipt of the
compensation paid to me by TlBCO, I, N Tll 6 () fA2l) A , agree to the following:
I. AT-WILL EMPWYMENT. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH TlBCO IS FOR AN UNSPECIFIED
DURATION AND CONSTITUTES "AT-wnL" EMPLOYMENT. I ACKNOWlEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY.BE TERMINATED
AT ANY TIME, WITH OR WITHOUT CAUSE, AT TIIE OPTION EITIIER OF TIBCO OR MYSELF, WITH OR WITHOUT NOTICE. I FURlHER
UNDERSTAND AND ACKNOWLEDGE THAT TIBCO HAS TIIE RIGHT TO CHANGE MY COMPENSATION, DUTIES, ASSIGNMENTS, RESPONSlBlLl'fIES
AND LOCATION OF EMPLOYMENT WITH OR WITHOUT CAUSE OR NOTICE. MY AT-WILL EMPLOYMENT STATUS CANNOT BE MODIFIED UNLESS
EVIDENCED IN WRITING BY BOTH MYSELF AND THE PRESIDENT OF TlBCO.
n. DUTIES. I shall perform and devote my full time, attention, skill and efforts to such tasks and duties as may be assigned by TIBCO. I shall follow all of
TlBCO's legal inS1J1Jctions and directions and shall abide by all of TlBCO's rules, policies and procedures in force while employed. Without the prior written consent
of TIBCO, I shall not provide services similar to those performed for TlBeO to any other person or business entity that would interfere with or derogate from my
obligations to TlBCO while employed by TIBCO.
m. COMPENSA nON. As compensation for all services to be rendered by me to TlBCO, I shall be paid a salary as set forth in my offer letter. Said salary shall be
payable in accordance with TlBCO's standard procedures and subject to adjustment pursuant to TlBCO's compensation policies in effect at the sole discretion of
TlBCO. TlBCO shall withhold from any amounts payable as compensation all federal, state, municipal or other taxes as are required by any law, regulation or ruling.
IV. PROPERTY RIGHTS, DUTY TO DISCLOSE. Concurrent with the execution of this Agreement, I shall enter into and be bound by TIBCO's "Non-
DisclosurelAssigmnent Agreement" attached hereto as Exlnbit A. made a part hereofby this reference as though set forth in full herein.
V. NONSOLlClTAnON. During the term of this Agreement and for a period of one (1) year thereafter in any county in the United States in which TIBeO does
business including a list of such counties which is available from Human Resources, I shall not, directly or indirectly, either for myself or for any other person, firm,
corporation or other legal entity, solicit any then employee ofTlBCO to leave the employment ofTlBCO, nor shall I call upon, divert or solicit any of the customers of
TlBCO that were or became customers during the term of my employment (as used herein, "customer" shall mean any person or company listed as sucb on the books
of TlBCO, its subsidiaries or affiliates).
VI. NO BREACH OF DUTY OR CONFLICTS. I represent that my performance of this Agreement and as an employee of TlBCO does not and will not breach
any agreement or duty to keep in confidence proprietary information acquired by me in confidence or in trust prior to my employment with TIBCO. I have not and I
will not enter into any agreement, either written or oral. in conflict with this Agreement. I am not presently resUicted from being employed by TlBCO or entering into
this Agreement by any agreement with any former or current employer, or otherwise. I aclmowledge and agree tbat TlBCO assumes no obligation or liability to me or
any current or former employer regarding any debts or damages I may owe any current or former employer, if any.
vn. ENTIRE AGREEMENT AND WAIVER. This Agreement, together with the offer letter as well as the Non-Disclosure/Assignment Agreement attached hereto
as f2Ibil!i1.A is the entire agreement between the parties and supersedes all prior agreements, arrangements, negotiations and understandings, including both oral and
written, related thereto. No waiver of any term, provision or condition of this Agreement sball be deemed to be, or shall constitute, a waiver of any other term,
provision of condition herein. No such waiver shall be binding unless in writing and signed by the waiving party.
vm.AMENDMENTS. No supplement, modification or amendment of any term, provision or condition of this Agreement shall be binding or enforceable unless
evidenced in writing executed by both myself and the President ofTIBCO.
IX. ARBITRATION. Any dispute or claim, including all contract, t011, discrimination or other statutory claims, arising under or relating to this Agreement, or
regarding tennination of my employment with TlBCO, but excepting claims under applicable workers' compensation law and unemployment insurance claims
("arbitrable claims") alleged against TlBeO and/or its agents shall be resolved by arbitration. Such arbitration shall be final and binding on the parties and shall be the
exclusive remedy for arbitrable claims. The parties hereby waive any rights each may have to a jury trial in regard to the arbitrable claims. Arbitration shall be
conducted by the American Arbitration Association in California under the National Rules for the Resolution of Employment Disputes. In any arbitration, the burden
ofproofshalJ be allocated as provided by applicable law. TlBCO shall pay the fees and costs of the arbitrator. However, the arbitrator shall have the same authority as
a court to award equitable relief, damages, costs, and fees (excluding the costs and fees for the arbitrator) as provided by law for the particular claims asserted.
HOWEVER, the parties agree that this arbitration provision shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of
TlBCO's trade secrets or proprietary information.
X. SEVERABILITY. If one or more of the provisions in this Agreement is deemed void by law, then the remliining provisions will continue in full force and effect.
XI. SURVIVAL. Paragraphs IV, V and !?' shall survive the tennination of this Agreement.
XII. GOVERNING LAW. This Agreement shall be governed by and construed in all respects in accordance with the laws of the state of California.
AGREEMENT UNDERSTOOD AND FAIR. After carefully reading and considering the foregoing provisions and asking any questions needed for me to
understand the terms, consequences and binding effect of this Agreement, I fully understand this Agreement and agree that all restrictions set forth are fair and
reasonable. I have voluntarily signed this Agreement as of the date written below.
Signature Date
411 I>UIJ""f)OPYr pi'.
Address Telephone Number
DUNwopDY, t,A - .30335?
City, State Zip Code
04/0l
TIBCO
EXHIBIT ~
The Power of Now'"'
NONDISCLOSUREIASSIGNMENT AGREEMENT
As a condition of employment or continued employment with TIBCO Software Inc. or its subsidiary ("TIBCO',), l, Ib A$ANl H 6 D kJAA, agree that:
J. PROPRIETARY INFORMATION. "Proprietary Infonnation
ft
means the fol1owing information relating to TIBCO's business:
(A) Trade secrets and other proprietary and confidential information, including without limitation, software, formulas, designs. drawings, customer data, pricing,
methods, processes, machines, discoveries, technologies, computer programs and systems, research, works of authorship, improvements, developments, employee
lists, salaries, job classifications, sldl1levels, financial, business and marketing data, plans and strategies, but excluding information that is not generally known to
the public through no fault of mine and which cannot be discovered or replicated by a third party without substantial expense; and
(B) Any other information designated by TIBCO to be confidential, secret and/or proprietary.
"Proprietary Information" also means a11 ideas, concepts, information and written material about a customer or any other third party with whom TIBCO does business,
disclosed to me by TlBoo, or acquired from a customer or any other third party with whom TIBoo does business, excluding information that is not generally known
to the public through no fault of mine and which cannot be discovered or replicated by a third party without substantial expense.
All Proprietary Information that comes into my possession while employed by TIBCO is the exclusive property of TIBCO. I will use the Proprietary Information only
in connection with my work for TISCO. I will, while employed with TISCO and thereafter, hold the Proprietary Information in confidence and not disclose or reveal,
any Proprietary Information to any person or entity.
n. RETAJNJNG AND ASSIGNING INVENTIONS AND ORIGINAL WORKS. Any inventions, discoveries or improvements that I have conceived/developed
or made or may conceive/develop or make during my employment with TlBoo, whether made individua11y or jointly with others, which: (I) relate or pertain to, or are
in any way connected with, the software, systems, products, apparatus or methods uti\ized by TIBoo, or are the subject of research or development (actual or
anticipated), by TIBoo; or (2) utilize TIBoo's computers, networks, equipment, supplies, facilities or Proprietary Information (collectively, the "Inventions"), shall be
the sole exclusive property of TIBCO and any copyrightable Inventions shall be deemed to be "works made for hire" as that term is defined in the United States
Copyright Act.
(A) I will make prompt and full written disclosure to TlBCO of a11 inventions, discoveries or improvements made by me during the term of the Agreement, solely
or jointly with others.
(B) I will assign to TIBoo all rights in the Inventions. I will cooperate, execute and sign any and all instruments which TIBoo may deem necessary in order to
enable it, at its expense, to apply for, prosecute and obtain Letters of Patent, trademarks, copyright or other legal protections in the United States and or foreign
countries for the Inventions, or in order to assign or convey to or vest in TIBCO the sole and exclusive right, title and interest in and to the Inventions. I further
agree that my obligation to execute any such instrument or papers sha\1 continue after the terms of this Agreement
(C) I agree to keep and maintain adequate and current written records of all inventions and original works of authorship made by me (solely or jointly with others)
during the term of my employment with TIBoo. The records will be in the form of notes, sketches, drawings, and any other format that may be specified by
TlBCO. The records will be available to and remain the sole property ofTIBoo at all times.
(0) I have attached hereto, as Attac!unent I, a list describing all inventions, original works of authorship, development, improvements, and trade secrets which
were made by me prior to my employment with TIBCO (collectively, "Prior Inventions"), which belong to me, which relate to TlBCO's proposed business, products
or research and development, and which are not assigned to TIBoo hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in
the course of my employment with TIBCO, I incorporate into a TIBoo product, process or machine a Prior Invention owned by me or in which I bave an interest,
TIBCO is hereby granted and sba11 have a nonexclusive, royalty-ftee. irrevocable, perpetual, worldwide license to make, have made, modifY. use and seU such Prior
Invention as part of or in connection with such product, process or machine. .
(E) Applicable to CaliforBia employees only: I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do not
apply to any inventions which qualifY fuUy under the provisions of Section 2870 of the California Labor Code
1
, but agree to the obligations set forth in Section UA
m. RETURNING COMPANY PROPERTY. I will upon the request of or upon leaving the employ ofTIBCO, return promptly to TlBCO the original and all copies
of any documents, reports, notes or other materials containing any Proprietary Information or information concerning Inventions. hi the event of the termination of my
employment, I agree to sign and deliver the "Termination Certification" attached hereto as Attac!unent 2.
IV. AVAD..ABILITY OF INJUNCI1VE RELIEF. Because any breach of my obligations under this Agreement would cause irreparable injury to TlBoo, in
addition to any other remedies available, TIBCO will be entitled to obtain an injunction to enforce the provisions of this Agreement.
V. FORMER EMPLOYER. I will not lISe or disclose IIIIJ' co1ffidentUd or proprietary hrj'ormtltion of /lily prior employer. I wiU not bring 0Il10 TIBCO
premises IIIIJ' unpublished documents or property belonging ID ""y former employers, unless COlI&ented to in writing by th08e employers.
VI. AT-WILL EMPWYMENT. Nothing in this Agreement cbanges my status as an express at-will employee. I agree that unless specifically provided in writing
signed by me and the President ofTlBCO, my employment with TIBCO is not for a definite period of time. Rather, my employment with TlBCO is "at-will" and may
be terminated by either myself or TIBCO at any time, with or without cause or prior notice. In addition, the Company has the right to change my compensation, duties,
assignments, responsibilities or location of my position at any time, with or without cause or notice.
VII. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the
benefit ofTIBCO, its successors, and its assigns.
Slgnature Date
6A ~ It-N lH 60llODA
Name
, (a) Arry provision in 011 omploymenllgrcemcnt which provides that 011 omployce shaD assigu, or offer to assign, my oflus or her rights in lID inventiou 10 his or her employer sbaII n01 apply 10 on inVOlItiOD
thai the employee developed OlItirely OD his or her OWD tim. without usin& the employer's equipment, supplies, faciliti.s. or trade ..... et infOlmotioD excopI for those inVCUDODS thai either: (J) RoJatc at th.
time of conception or reduction 10 pracDce of the invention 10 the employer's busin ..... or actual or dCJllOlJS1nbly onDciJHIled research or development of the employer; or (2) Resull fivm any work peri'ontled
by the employee for the employer.
(b) To the extent. provision in an omployment agreement purports 10 require on .mployee 10 assign an invention otherwise excluded from being requir.d 10 be assigned under subdivision (a), th. provision is
against the public policy of this stalc and is unenforceable.
04/02
('''' .....
I
\
' ..
AITACBMENTI
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
MfToijOj) ANT> M01>&lUNt, A
COMfYl (;ltV ltA 11 ON tJ
_No inventions or improvements
_Additional Sheets Attached
Signature: "C-IY)
Name:._ ..... P, ..... ___ _
Date.: ___ D_3-----:.3_'_-_l.O_D_r ________ _
04/02
Identifying Number or Brief Description
1
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28
TIBCO SOFTWARE INC. v. ENSUANT, INC., et al.
Santa Clara Superior Court No. Case No.: 1-10-CV-174346
PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a
party to the within action. My business address is REED SMITH LLP,
101 Second Street, Suite 1800, San Francisco, CA 94105-3659. On July 25, 2011, I served the
following document(s) by the method indicated below:
SECOND AMENDED COMPLAINT FOR 1. TRADE SECRETS MISAPPROPRIATION;
2. BREACH OF CONTRACT (TWO COUNTS); 3. TORTIOUS INTERFERENCE WITH
CONTRACT (TWO COUNTS); AND 4. UNFAIR COMPETITION UNDER CAL. BUS. &
o
o
II/
PROF. CODE 17200
by transmitting via facsimile on this date from fax number + 1 415 391 8269 the document( s)
listed above to the fax number(s) set forth below. The transmission was completed before
5:00 PM and was reported complete and without error. The transmission report, which is
attached to this proof of service, was properly issued by the transmitting fax machine.
Service by fax was made by agreement of the parties, confirmed in writing. The transmitting
fax machine complies with Ca1.R.Ct 2.306.
by placing the document(s) listed above in a sealed envelope with postage thereon fully
prepaid, in the United States mail at San Francisco, California addressed as set forth below. I
am readily familiar with the firm's practice of collection and processing of correspondence
for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that
same day with postage thereon fully prepaid in the ordinary course of business. I am aware
that on motion of the party served, service is presumed invalid if the postal cancellation date
or postage meter date is more than one day after the date of deposit for mailing in this
Declaration.
by placing the document(s) listed above in a sealed envelope(s) and consigning it to an
express mail service for guaranteed delivery on the next business day following the date of
consignment to the addressees) set forth below. A copy of the consignment slip is attached to
this proof of service.
by transmitting via email to the parties at the email addresses listed below:
Michael A. Farbstein
Farbstein & Blackman
A Professional Corporation
411 Borel Avenue, Suite 425
San Mateo, CA 94402
maf@farbstein.com
Patrick E. Premo, Esq.
Fenwick & West LLP
Silicon Valley Center
801 California Street
Mountain View, CA 94041-2008
PPremo@fenwick.com
-1-
Proof of Service
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I declare under penalty of perjury under the laws ofthe State of California that the
above is true and correct. Executed on July 25, 2011, at San Francisco, California.
_d?'
Myra R. aylor
US_ACTIVE104734355,2
-2-
Proof of Service

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