Court Filing: HP Civil Complaint Against Mark Hurd

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17 CIVIL COMPLAINT zmo SEP -1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 18 COUNTY OF SANTA CLARA _ 19 HEWLETT-PACKARD COMPANY, ) Case No.1 1 0 C V 1 8 1 69 9 ) ) CIVIL COMPLAINT FOR BREACH OF ) CONTRACT AND THREATENED ) MISAPPROPRIATION OF TRADE ) SECRETS 22 MARK V. HURD, an individual, and DOES 1- ) 25, inclusive, ) DEMAND FOR INJUNCTIVE RELIEF ) AND JURY TRIAL ) ) ~ (APPLICATION FOR INJUNCTIVE _____________ ___/) RELIEF TO BE FILED FORTHWITH} 20 Plaintiff, 21 v. 23 Defendants. 24 25 26 27 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CIVIL COMPLAINT Plaintiff Hewlett-Packard Company ("HP") for its Civil Complaint against Defendants Mark V. Hurd ("Hurd"), and Does 1 through 25 (collectively, the "Defendants"), states as follows: INTRODUCTION 1. Despite being paid millions of dollars in cash, stock and stock options in exchange for Hurd's agreements to protect HP's trade secrets and confidential information during his employment and following his departure from his positions at HP as Chairman of the Board, Chief Executive Officer, and President, HP is informed and believes and thereon alleges that Hurd has put HP's most valuable trade secrets and confidential information in peril. Hurd accepted positions with Oracle Corporation ("Oracle"), a competitor of HP, yesterday as its President and as a member of its Board of Directors. In his new positions, Hurd will be in a situation in which he cannot perform his duties for Oracle without necessarily using and disclosing HP's trade secrets and confidential information to others. For example, one technology reporter from Computerworld wrote today ''the fact that Oracle is also hiring someone who knows HP's strategy and markets -- and its enterprise customers -- is also a big plus." An independent analyst quoted in the article stated that Hurd will know "which Sun accounts were being most heavily mined and which HP accounts are the most vulnerable in the large enterprise space - that could be very valuable." 2. Accordingly, HP seeks immediate injunctive relief to protect its trade secrets and confidential information from Hurd's threatened misappropriation pursuant to Civil Code section 3426.2(a) and to require Hurd to honor his legally binding trade secret protection agreements with HP. 3. NATURE OF ACTION This is an action for breach of contract and threatened misappropriation of trade 26 secrets. HP seeks injunctive relief and other damages. 27 28 2 1 2 3 4 5 6 CIVIL COMPLAINT 4. HP is informed and believes and thereon alleges that Hurd, the former Chairman of the Board, Chief Executive Officer, and President ofHP, is violating and will continue to violate his legal obligations and express contractual obligations owed to HP to affirmatively maintain the confidentiality of HP' s trade secrets and confidential information. In exchange for these obligations, Hurd was paid monies, stock and stock options worth millions of dollars during and after his employment with HP. Specifically, in violation of his continuing obligations 7 8 9 10 11 12 ~ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to HP, on September 6,2010, it was publicly announced that Hurd accepted a position as President and Board member of HP' s competitor Oracle. In that position he will necessarily disclose and utilize HP's trade secrets and confidential information. 5. HP seeks an order requiring Hurd to provide HP with written notification and further information concerning Hurd's new position with Oracle pursuant to his trade secret protection agreements with HP. Hurd's failure to provide such notice before it was publicly announced by Oracle, gives rise to a reasonable inference that he is violating his trade secret protection agreements with HP. HP also seeks to enjoin Hurd from holding a position with a competitor in which he will serve in a capacity that will make it impossible for him to avoid utilizing or disclosing HP's trade secrets and confidential information pursuant to Civil Code section 3426.2(a). PARTIES, JURISDICTION AND VENUE 6. Hurd began his employment with HP on or about April 2005. Upon joining HP, and at numerous points throughout his employment with HP, Hurd received stock options, restricted stock and monies worth millions of dollars in exchange for his agreements that he would not misuse HP' s trade secret or confidential information. Hurd's employment with HP ended on or about August 6, 2010. 3 1 2 3 4 5 6 CIVIL COMPLAINT 7. Hurd worked for HP in its Palo Alto, California office, resides in California, and has conducted and is conducting business in this venue. 8. Plaintiff, HP, is a Delaware corporation with its principal place of business and world headquarters in Palo Alto, California. 9. HP employs numerous employees in Santa Clara County, California and conducts 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 business in Santa Clara County, worth millions of dollars each year which is at risk due to Hurd's actions. 10. HP is unaware of the true names and capacities of the Defendants named herein as DOES 1 through 25 and therefore sues such Defendants by such fictitious names pursuant to California Code of Civil Procedure section 474. HP will seek leave of Court to amend this Complaint to set forth the true names and capacities of those fictitiously named Defendants when they are ascertained. 11. HP is informed and believes and thereon alleges that each of the Does is in some way and/or manner responsible for the acts and occurrences hereon alleged, whether such acts and such occurrences were committed intentionally, recklessly, or otherwise, and that each Doe is liable to HP for the damages suffered by it. 12. HP is informed and believes and on that basis alleges that each Defendant is now, and at all relevant times was, the agent, employee, or servant of each of the other Defendants, and in doing the things alleged herein, was acting within the course and scope of such employment, agency, servitude or related relationship. 13. Venue is proper in Santa Clara County because HP resides within Santa Clara, Hurd worked for HP in Santa Clara County, and the Defendants' wrongful actions took place within the county. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CIVIL COMPLAINT BACKGROUND 14. HP is a technology company founded in 1939 that operates in more than 170 countries around the world. As the world's largest technology company, HP brings together a portfolio that spans printing, personal computing, software, services and IT infrastructure to solve customer problems. No other company offers as complete a technology product portfolio as HP. HP provides infrastructure and business offerings that span from handheld devices to some of the world's most powerful supercomputer installations. HP offers consumers a wide range of products and services from digital photography to digital entertainment and from computing to home printing. This comprehensive portfolio helps HP match the right products, services and solutions to its customers' specific needs. 15. HP's three business groups drive industry leadership in core technology areas: 1) The Personal Systems Group: business and consumer pes, mobile computing devices and workstations; 2) The Imaging and Printing Group: inkjet, LaserJet and commercial printing, printing supplies; and 3) Enterprise Business: business services and products, including for example, storage and servers, enterprise services and software. 16. HP's software and hardware offerings compete directly with some offerings from the most competitive companies in the world, including Oracle. 17. HP is a leader in technology and customer support and service through the use of a well trained staff, the use of technology and the establishment of strong customer relationships. 18. HP has invested substantial monies to create proprietary designs, solutions, initiatives and equipment to insure that HP can provide cutting edge technologies and services to its customers. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 CIVIL COMPLAINT key customer relationships, designing customer initiatives, determining strategic mergers and 19. HP also spends extensive time and substantial monies identifying and maintaining acquisitions, allotting resources for new technologies and initiatives, and creating annual business plans. 20. HP's key management personnel, headed up by Hurd, participate extensively in the design and implementation of annual business plans. Hurd was responsible for the creation ofHP's strategic plans, including its FY 2010 and FY 2011 business plans. He was responsible for creating a plan to compete against HP's competitors, including Oracle. By working at Oracle, he cannot help but utilize and disclose HP's trade secrets and confidential information, including the trade secrets and confidential information contained in the FY 2010 and FY 2011 business plans. 21. HP has purchased through acquisitions and on its own developed and maintained valuable relationships and substantial goodwill with its customers. 22. In order to grow its business and better serve its customers, HP has acquired other 18 entities and technology throughout the world to best provide products and services that meets its 19 clients' needs and from which HP can derive economic gain. 20 21 22 23 24 25 26 27 28 23. HP's business information, customer relationships and goodwill are of paramount significance to its business reputation and its success. EVENTS GIVING RISE TO THIS ACTION 24. Hurd joined HP on or about April 2005. 25. Upon joining HP, Hurd was provided access to HP's trade secrets and confidential information, subject to non-disclosure restrictions. 6 1 2 3 4 5 6 7 8 9 10 11 CIVIL COMPLAINT 26. During his employment with HP, Hurd executed several non-disclosure agreements with HP in which he agreed not to disclose confidential information ofHP. Further, Hurd took mandatory annual online Standards of Business Conduct training, which includes the obligation to protect HP's confidential information and trade secrets. 27. Hurd executed HP's Agreement Regarding Confidential Information and Proprietary Developments (the "Trade Secret Protection Agreements"). Most recently, he signed such agreements on February 6, 2008, February 26, 2009, and February 12,2010, respectively. True and correct copies of the agreements are attached as Exhibits A, B, and C. 28. Hurd agreed to keep HP's trade secrets and confidential information protected and 12 confidential both during and after his employment with HP, pursuant to Section 2 of the Trade 13 Secret Protection Agreements: 14 2. Confidential Information. This Agreement concerns trade secrets, confidential business 15 and technical information, and know-how not generally known to the public (hereinafter "Confidential Information") which is acquired or produced by me in connection with my 16 employment by HP. Confidential Information may include, without limitation, information on HP organizations, staffing, finance, structure, information of employee performance, 17 compensation of others, research and development, manufacturing and marketing, files, keys, certificates, passwords and other computer information, as well as information that HP receives 18 from others under an obligation of confidentiality. I agree: (a) to use such information only in the performance ofHP duties; 19 (b) to hold such information in confidence and trust; and (c) to use all reasonable precautions to assure that such information is not disclosed 20 to unauthorized persons or used in an unauthorized manner, both during and after my employment with HP. 21 I further agree that any organizational information or staffing information learned by me in connection with my employment by HP is the Confidential Information of HP, and I agree that 22 I will not share such information with any recruiters or any other employers, either during or subsequent to my employment with HP; further, I agree that I will not use or permit use of such 23 as a means to recruit or solicit other HP employees away from HP (either for myself or for others). 24 25 26 27 28 29. Under the Trade Secret Protection Agreements, Hurd also agreed to return all HP property upon the termination of his employment. 6. HP Property. I will not remove any HP property from HP premises without HP's permission. Upon termination of my employment with HP, I will return all HP property to HP unless HP's written permission to keep it is obtained. 7 (a) No Conflicting Business Activities. I will not provide services to a Competitor 11 in any role or position (as an employee, consultant, or otherwise) that would involve Conflicting Business Activities in the Restricted Geographic Area (but while I remain a 12 resident of California and subject to the laws of California, the restriction in this clause (paragraph 7, subpart (a)) will apply only to Conflicting Business Activities in the 13 Restricted Geographic Area that result in unauthorized use or disclosure of HP's Confidential Information); (d) No Solicitation of HP Suppliers. I will not (in person or through assistance to 23 others) knowingly participate in soliciting or communicating with an HP Supplier for the purpose of persuading or helping the HP Supplier to end or modify to HP's detriment an 24 existing business relationship with HP if I either worked with that HP Supplier or received Confidential Information about that HP Supplier in the last two years of my 25 employment with HP. 1 2 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 26 27 28 30. Hurd also agreed to certain Protective Covenants in the Trade Secret Protection Agreements to protect HP's trade secrets: 7. Protective Covenants. I acknowledge that a simple agreement not to disclose or use HP's Confidential Information or Proprietary Developments after my employment by HP ends would be inadequate, standing alone, to protect HP's legitimate business interests because some activities by a former employee who had held a position like mine would, by their nature, compromise such Confidential Information and Proprietary Developments as well as the goodwill and customer relationships that HP will pay me to develop for the company during my employment by HP. I recognize that activities that violate HP's rights in this regard, whether or not intentional, are often undetectable by HP until it is too late to obtain any effective remedy, and that such activities will cause irreparable injury to HP. To prevent this kind of irreparable harm, I agree that for a period of twelve months following the termination of my employment with HP, I will abide by the following Protective Covenants: (b) No Solicitation of Customers. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with any customer of HP in pursuit of a Competing Line of Business if I either had business-related contact with that customer or received Confidential Information about that customer in the last two years of my employment at HP (but while I remain a resident of California and subject to the laws of California, the restriction in this clause (paragraph 7, subpart (b)) will apply only to solicitations or communications made with the unauthorized assistance of HP's Confidential Information); (c) No Solicitation of HP Employees. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an HP Employee for the purpose of persuading or helping the HP Employee to end or reduce his or her employment relationship with HP if I either worked with that HP Employee or received Confidential Information about that HP Employee in the last two years of my employment with HP; and 31. To further protect HP's trade secrets, the Trade Secret Protection Agreements require Hurd to notify HP of his post-employment activities. Specifically Hurd is required to 8 CIVIL COMPLAINT 16 reaffirmed his obligations to HP and extended certain specified obligations under the Trade 17 Secret Protection Agreements. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 18 19 20 21 22 23 24 25 26 27 28 notify HP of his employment with a competitor and provide HP with information concerning his new position to assess whether such a position would likely lead to a violation of the agreement: 9. Notice of Post-Employment Activities. If I accept a position with a Competitor at any time within twelve months following termination of my employment with HP, I will promptly give written notice to the senior Human Resources manager for the HP business sector in which I worked, with a copy to HP's General Counsel, and will provide HP with the information it needs about my new position to determine whether such position would likely lead to a violation of this Agreement (except that I need not provide any information that would include the Competitor's trade secrets). 32. Lastly, Hurd agreed that HP would be entitled to immediate injunctive relief for any violations ofthe Trade Secret Protection Agreements: 10. Relief; Extension. I understand that if I violate this Agreement (particularly the Protective Covenants), HP will be entitled to injunctive relief by temporary restraining order, temporary injunction, and/or permanent injunction and any other legal and equitable relief allowed by law. Injunctive relief will not exclude other remedies that might apply. If! am found to have violated any restrictions in the Protective Covenants, then the time period for such restrictions will be extended by one day for each day that I am found to have violated them, up to a maximum extension equal to the time period originally prescribed for the restrictions. 33. Hurd also executed a separation agreement on August 6, 2010, in which he 34. As the Chairman of the Board, Chief Executive Officer, and President for HP, Hurd was provided access to HP's most valuable trade secrets and confidential information. In particular, Hurd attended board meetings, operation meetings, technology meetings, strategic planning meetings and customer meetings. 35. As a result of assuming this high level position within HP, Hurd had access to and had direct reports from each of HP' s business units, including the Enterprise Business unit, which includes, storage and servers, enterprise services and software. Additionally, as the Chairman of the Board, Hurd attended high level meetings at HP and was privy to the most sensitive ofHP trade secret and confidential information. Hurd helped determine high-level HP 9 CIVIL COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 CIVIL COMPLAINT strategy, worked extensively on company acquisitions, and was quite familiar with confidential personnel matters. 36. Hurd was placed in such a high level position with access to all ofHP's most important trade secrets and confidential information regarding research and development, marketing, strategy, customer contacts, target acquisitions, merger opportunities, allocation of resources, pricing, margins, profitability, customer initiatives, leadership and talent initiatives and other confidential information. As indicated above, Hurd was responsible for preparing HP's strategic plans, including its FY 2010 and FY 2011 business plans. 37. Additionally, Hurd was provided with trade secrets and confidential information 12 concerning competitors. On March 18,2010, Hurd was presented, along with the other members 13 of the HP Board of Directors, with a highly confidential competitive internal analysis of Oracle. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. Hurd's separation date from HP was August 6,2010. Hurd entered into a Separation and Release Agreement with HP by which he was paid millions of dollars and reaffirmed his post-employment obligations, including his trade secret protection obligations, owed to HP. A true and correct copy of the Separation and Release Agreement is attached as ExhibitD. 39. On Labor Day, September 6, 2010, it was publicly announced and carried in the press that Hurd was being named the new President of Oracle, a competitor ofHP, and as a member of the Board of Directors of Oracle. No effort was made by Hurd to provide advance notice to HP before the announcement was made public. 40. Oracle's Chief Executive Officer was quoted in the press as saying: "Mark did a brilliant job at HP and I expect he'll do even better at Oracle." He was also quoted as saying that: "There is no executive in the IT world with more relevant experience than Mark." 10 1 2 41. In Oracle's press release, Hurd is quoted as saying: "I believe Oracle's strategy of combining software with hardware will enable Oracle to beat IBM in both enterprise servers and 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 storage." He went on to say: "Exadata is just the beginning. We have some exciting new systems we are going to announce later this month at Oracle Open World. I'm excited to be a part of the most innovative technology team in the IT industry." Attached hereto as Exhibit E is a true and correct copy of Oracle's press release. 42. As Hurd well knows, IBM and HP are competitors of Oracle in the enterprise servers and storage business. Hurd's clear effort to avoid mentioning HP is telling in light of Oracle's own SEC filings identifying HP as a competitor. What Hurd and everyone else also knows is that the Exadata server mentioned in his quote is a direct competitive product to HP's Proliant Server. 43. The information identified above is but one example of the many ways in which HP and Oracle directly compete and in where Hurd's "relevant experience" includes HP trade secret and confidential information. 44. In a recent SEC filing (lO-K, July 1,2010), Oracle stated, in pertinent part: We face intense competition in all aspects of our business. The nature of the IT industry creates a competitive landscape that is constantly evolving as firms emerge, expand or are acquired, as technology evolves and as customer demands and competitive pressures otherwise change. Our customers are demanding less complexity and lower total cost in the implementation, sourcing, integration and ongoing maintenance of their enterprise software and hardware systems which has led increasingly to our product offerings being viewed as a "stack" of software and hardware designed to work together in a standards-compliant environment-from "Applications to Disk." Our enterprise software and hardware offerings compete directly with some offerings from the most competitive companies in the world, including Microsoft Corporation (Microsoft), IBM Corporation (IBM), Hewlett Packard Company (HP), SAP AG, and Intel, as well as many others. 45. Hurd's position as a President and a member ofthe Board of Directors for Oracle puts HP's trade secrets and confidential information in jeopardy. He will be responsible, in 11 CIVIL COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whole or part, for the direction of the company. As a competitor ofHP, he will necessarily call upon HP's trade secrets and confidential information in performing his job duties for Oracle. 46. Hurd will be violating his legal obligations to HP and his trade protection agreements by working as Oracle's President and as a member of the Board of Directors. He cannot perform his job at Oracle without disclosing or utilizing HP's trade secrets and confidential information. As discussed more fully herein, HP's trade secrets include product planning, strategic business planning, resource allocation, products under development, teclmology, confidential competitive intelligence, customer initiatives, customer relationship strengths and weaknesses, pricing, margins, acquisition targets, and business growth strengths and weaknesses. 47. HP's trade secret information is not generally known in the industry and is valuable because HP derives economic value from the information not being publicly available. 48. HP's trade secret business and customer information is of great value to HP and such information would give any competitor who improperly acquired such information an unfair competitive advantage by: not expending the time and resources to develop the trade secret information as HP has done, quickly developing products and technologies to unfairly compete with HP in order to diminish HP's head start, and even alerting a competitor as to initiatives that should not be pursued, as well as other improper advantages. 49. HP protects its trade secret business and customer information by requiring employees to keep confidential business and customer information, by password protecting computers, by limiting access to information, by requiring employees to sign confidentiality agreements, and by requiring employees to take mandatory annual online Standards of Business 12 CIVIL COMPLAINT 1 2 3 4 CIVIL COMPLAINT Conduct training, which includes the obligation to protect HP's confidential information and trade secrets. 50. HP's customer relationships and goodwill are of paramount importance to HP in 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 that many ofHP's customers have been customers ofHP for quite some time. Moreover, in a number of instances, HP's customers entrust HP with confidential information and require HP to enter into confidentiality agreements as well. 51. While employed by HP, Hurd had contact with customers, vendors, and trade secrets and confidential information. He was privy to the pricing, margins, customer initiatives, allocation of resources, product development, multi-year product, business and talent planning, and strategies being utilized by HP and which would give Hurd and Oracle an unfair advantage in soliciting customers, utilizing vendors and developing products. 52. Hurd's actions are a serious threat to HP's business, are in violation of contractual obligations and applicable law and unjustly enrich Hurd. 53. HP has no adequate remedy at law to fully protect it. If Hurd's actions go unchecked, he will necessarily diminish the value ofHP's trade secret and confidential information, diminish its goodwill, negatively impact customer relationships, give Oracle a strategic advantage as to where to allocate or not allocate resources and exploit the knowledge of HP's strengths and weaknesses. FIRST CAUSE OF ACTION [Breach of Contract Against Hurd] 54. HP hereby repeats, realleges and incorporates by reference the allegations which 27 are contained in paragraphs 1 through 53. 28 13 1 2 3 4 CIVIL COMPLAINT 55. Hurd's Trade Secret Protection Agreements and Separation and Release Agreement are valid and enforceable contracts. The confidentiality covenants and other provisions contained in the agreements are reasonably necessary to protect legitimate protectable interests in trade secrets, confidential information, customer relationships, work force and 5 6 goodwill. 7 56. 8 57. HP has fully performed all of its obligations under the agreements. Hurd is breaching or threatens to breach the agreements in at least one of the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 following ways by: A. failing to provide HP with sufficient notification of Hurd's new employer and sufficient information concerning Hurd's new position pursuant to Section 9 of the Trade Secret Protection Agreements; and/or B. accepting a position that will make it impossible for him to avoid disclosing or utilizing HP's trade secrets or confidential information in violation of Sections 2 and 7 of the Trade Secret Protection Agreements. 58. As a result of any one of these breaches of his agreements, HP has been injured and faces irreparable injury. HP is threatened with losing customers, technology, its competitive advantage, its trade secrets and goodwill in amounts which may be impossible to determine, unless Hurd is enjoined and restrained by order of this Court. SECOND CAUSE OF ACTION [Threatened Misappropriation of Trade Secrets Against Hurd and Does 1 through 25] 59. HP hereby repeats and realleges and incorporates by reference the allegations which are contained in paragraphs 1 through 58. 60. At all relevant times, HP was in possession of confidential and trade secret 27 information as defined by California Civil Code Section 3426. 1 (d). The proprietary business 28 and customer information of HP constitutes trade secrets because HP derives independent 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CIVIL COMPLAINT economic value from that information, such information is not generally known nor readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and because the information is the subject of reasonable efforts to maintain its secrecy. HP's confidential and proprietary trade secret information described herein is not and was not generally known to Plaintiffs' competitors in the industry. 61. HP is informed and believes and therefore alleges that Defendants have actually misappropriated and/or threaten to misappropriate HP's trade secrets without HP's consent in violation of California's Uniform Trade Secrets Act, California Civil Code § 3426 et seq. Hurd cannot serve as President and a member of the Board of Directors for Oracle without utilizing and disclosing HP's trade secrets and confidential information. Hurd cannot separate out HP's trade secrets and confidential information in performing his daily duties at Oracle. As such injunctive relief, pursuant to Civil Code section 3426.2(a) is appropriate. 62. Hurd has accepted employment at Oracle and will serve functions at Oracle similar to his previous roles at HP and thus, cannot avoid disclosing and utilizing HP's trade secrets and confidential information, 63. As a product of his employment with HP, Hurd had access to HP's most valuable trade secrets and confidential information as described herein. Hurd continues to have knowledge of that information, notwithstanding the fact that he is working for a competitor. 64. HP is informed and believes and thereon alleges that Hurd has the intent to 24 disclose HP's trade secrets and confidential information to others, including his new employer, 25 in violation of the CUTSA and his trade secret protection agreements with HP. 26 27 28 65. As a proximate result of Defendants' threatened misappropriation ofHP's trade secrets and confidential information, HP has suffered, and will continue to suffer, damages in an 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CML COMPLAINT amount to be proven at the time of trial, but which are substantial and in excess of the minimum jurisdictional amount of this court. 66. Defendants have been unjustly enriched and HP is entitled to all recoverable damages in an amount to be proven at the time of trial, but which are in excess of the minimum jurisdictional amount of this Court. 67. As a further proximate result of Defendants' wrongful conduct and threatened misappropriation, HP has been injured, irreparably and otherwise, and is threatened with additional and on-going injuries. Because HP's remedy at law is inadequate, HP seeks temporary, preliminary and permanent injunctive relief. HP is threatened with losing customers, technology, its competitive advantage, its trade secrets and goodwill in amounts which may be impossible to determine, unless Defendants are enjoined and restrained by order of this Court, as alleged above. 68. Defendants will be unjustly enriched by the threatened misappropriation ofHP's trade secrets and confidential information, and, unless restrained, will continue to threaten to use, actually use, divulge, threaten to disclose, acquire and/or otherwise misappropriate HP's trade secrets and confidential information. 69. Upon information and belief, Defendants' threatened misappropriation has been willful and malicious in light of Hurd's repeated execution of contracts prohibiting his current conduct and his deliberate violation of the contractual obligations. Therefore, Plaintiffs are entitled to an award of punitive or treble damages and attorneys' fees pursuant to California Civil Code Sections 3426.3(c) and 3426.4. 16 4 A. HP seeks an order requiring Hurd to provide HP with sufficient notification of 1 2 3 WHEREFORE, HP prays for the following relief: PRAYER FOR RELIEF 5 Hurd's new employer and provide further information concerning Hurd's new position with 6 Oracle pursuant to his trade secret protection agreements with HP; 7 B. That Hurd, along with his respective agents, employers, employees, attorneys and 8 those persons in active concert or participation with him, be enjoined by way of a temporary 9 injunction, preliminary injunction, and permanent injunction as follows: 1. from holding a position with a competitor in which he will utilize or 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disclose HP's trade secrets and confidential information; 2. directly or indirectly disclosing or utilizing HP's trade secrets and confidential information; and 3. appointing a special master to review, on a regular basis; Defendants' compliance with the requested injunctive relief and requiring Defendants, and each of them, to provide a monthly verified statement of compliance that Defendants, and each of them, have not used or disclosed any ofHP's trade secrets and confidential information. c. That HP be awarded compensatory damages it has suffered, in an amount to be proven at trial; D. That HP be awarded exemplary damages as provided for by statute for willful and malicious conduct; E. That HP be awarded attorney's fees and the costs of this action as permitted by law; F. For an accounting from Defendants of their misuses ofHP's information and property and other unlawful acts; 17 CIVIL COMPLAINT 1 CIVIL COMPLAINT 2 3 G. For a constructive trust for the benefit ofHP to be imposed upon all funds, assets, revenues and profits Defendants have or will derive from their unlawful acts and their threatened misappropriation of HP' s information and property; and That HP be awarded such other and further relief as the Court deems equitable Dated: September 7, 2010 Respectfully submitted, Law Offices of Allen Ruby 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Plaintiff . HEWLETT-PACKARD COMPANY DEMAND FOR JURY TRIAL Plaintiff Hewlett-Packard Company hereby demands a trial by jury in the abovecaptioned matter on all matters so triable. Dated: September 7, 2010 Respectfully submitted, Law Offices of Allen Ruby B~uan~J~b}~: ~ Attorneys for Plaintiff HEWLETT-PACKARD COMPANY 18 EXHIBIT A Agreement Regarding Confidential Information and Proprietary Developments With Protective Covenants Relating to Post-Employment Activity For Incumbent Employee Working in CaUfornia Name (Type or Print):_~~,---==--V-,,--,--. ~\Wr-=---d=-- _ 1. Consideration and Relationship to Employment. As a condition of my continued employment with Hewlett-Packard Company or one of its affiliates or subsidiaries (collectively, "HP"), and in consideration my eligibility for a grant of Performance-based Restricted Units under the Hewlett-Packard Company 2004 Stock Incentive Plan, I knowingly agree to restrictions provided for below that will apply during and after my employment by HP. I understand, however, that nothing relating to this Agreement will be interpreted as a contract or commitment whereby HP is deemed to promise continuing employment for a specified duration, 2. ConfidentlallnformatioD. This Agreement concerns trade secrets, confidential business and technical information. and know-how not generally known to the public (hereinafter "Confidential Information") which is acquired or produced by me in connection with my employment by lIP. Confidential Information may include, without limitation, information on HP organizations, staffing, finance, structure, information of employee performance, compensation of others, research and development, manufacturing and marketing, files, keys, certificates, passwords and other computer information, as well as information that HP receives from others under an obligation of confidentiality. I agree: a. to usc such information only in the performance of HP duties; b. to hold such information in confidence and trust; and c. to lise all reasonable precautions to assure that such information is not disclosed to unauthorized persons or used in an unauthorized manner, both during and after my employment with.HP. I further agree that any organizational information or staffing information learned by me in connection with my employment by HP is the Confidential Information of HP, and I agree that I will not share such information with any recruiters or any other employers, either during or subsequent to my employment with HP; further. I agree that 1 will not use or permit use of such as a means to recruit or solicit other HP employees away from liP (either for myself or for others). 3. Proorietarv Developments. This Agreement also concerns inventions and discoveries (whether or not patentable), designs, works of authorship, mask works, improvements, data, processes, computer programs and software (hereinafter called "Proprietary Developments") that are conceived or made by me alone or with others while I am employed by liP and that relate to the research and development or the business of HP, or that result from work performed by me fOT HP, or that are developed. in whole or in part, using HP's equipment, supplies, facil ities or trade secrets information. Such Proprietary Developments are the sole property of HP. and I hereby assign and transfer all rights in such Proprietary Developments to lIP. I also agree that any works of authorship created by me shall be deemed to be "works made for hire." I further agree for all Proprietary Developments: a. to disclose them promptly to HP; b. to sign any assignment document to formally perfect and confirm my assignment of title to HP; c. to assign any right of recovery for past damages to HP; and d. to execute any other documents deemed necessary by HP to obtain, record and perfect patent, copyright, mask works and/or trade secret protection in all countries, in HP's name and at HP's expense. I understand that HP may delegate these rights. I agree that, if requested, my disclosure, assignment, execution and cooperation duties will be provided to the entity designated by HP. In compliance with prevailing provisions of relevant state statutes, * this Agreement does not apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) to the business of the employer or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer. 4. ResPAAt for Rights of Former Employers. I agree to honor any valid disclosure or use restrictions on information or intellectual property known to me and received from any former employers or any other parties prior to my employment by HP. I agree that without prior written consent of such former employers or other parties, I will not knowingly use any such information in connection with my HP work or work product. and I will not bring onto the premises of lIP any such information in whatever tangible or readable form. 5. Work Product. The product of all work performed by me during and within the scope of my HP employment including, without limitation, any files, presentations, reports, documents, drawings, computer programs, devices and models, will be the sole property of HP. I understand that HP has the sole right to use, sell, license, publish or otherwise disseminate or transferrights in such work product. 6.HP Property. I will not remove any HP property from HP premises without HP's permission. Upon termination of my employment with HP, I will return an UP property to HP unless HP's written permission to keep it is obtained. 7. Protective Covenants. I acknowledge that a simple agreement not to disclose or use HP's Confidential Information or Proprietary Developments after my employment by HP ends would be inadequate, standing alone, to protect HP's legitimate business interests because some activities by a former employee who had held a position like mine would, by their nature, compromise such Confidential Information and Proprietary Developments as well as the goodwill and customer relationships that HP will pay me to develop for the company during my employment by HP. I recognize that activities that violate HP's rights in this regard, whether or not intentional, are often undetectable by HP until it is too late to obtain any effective remedy. and that such activities will cause irreparable injury to HP. To prevent this kind of irreparable harm, I agree that for a period of twelve months following the termination of my employment with HP, I will abide by the following Protective Covenants: 2 (a) No Conflicting Business Activities. I will not provide services to a Competitor in any role or position (as an employee, consultant, or otherwise) that would involve Conflicting Business Activities (but while I remain a resident of California and subject to the laws of California, the restriction in this clause (paragraph 7, subpart (a» will apply only to Contlicting Business Activities that result in unauthorized use or disclosure of liP's Confidential Information); (b) No Solicitation of Customers. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with any customer of lIP in pursuit of a Competing Line of Business if I either had business-related contact with that customer or received Confidential Information about that customer in the last two years of my employment at HP (but while r remain a resident of California and subject b the laws of California, the restriction in this clause (paragraph 7, subpart (b) will apply only to solicitations or communications made with the unauthorized assistance of HP's Confidential Information); (c) No Solicitation of UP Employees. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an HP Employee for the purpose of persuading or helping the HP Employee to end or reduce his or her employment relationship with HP if I either worked with that HP Employee or received Confidential Information about that HP Employee in the last two years of my employment with HP; and (d) No Solidtation of HP SUDDliers. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an HP Supplier for the purpose of persuading or helping the HP Supplier to end or modify to HP's detriment an existing business relationship with HP if I either worked with that HP Supplier or received Confidential Information about that lIP Supplier in the last two years of my employment with HP. As used here, "Competitor" means an individual, corporation, other business entity or separately operated business unit of an entity that engages in a Competing Line of Business. "Competing Line of Business" means a business that involves a product or service offered by anyone other than fIP that would replace or compete with any product or service offered or to be offered by HP with which 1 had material involvement while employed by HP (unless liP and its subsidiaries are no longer engaged in or planning to engage in that line of business). "Conflicting Business Activities" means job duties or other business-related activities in the United States or in any other country where the HP business units in which I work do business. or management or supervision of such job duties or business-related activities, if such job duties or business-related activities are the same as or similar to the job duties or business-related activities in which I participate or as to which I receive Confidential Information in the last two years of my employment with HP. "UP Employee" means an individual employed by or retained as a consultant to liP or its subsidiaries. "HP Supplier" means an individual, corporation, other business entity or separately operated business unit of an entity that regularly provides goods or services to HP or its subsidiaries, including without limitation any OEM, OOM or subcontractor. 8. Enforcement. I make these agreements to avoid any future dispute between myself and HP regarding specific restrictions on my post-employment conduct that will be reasonable, necessary and enforceable to protect liP's Confidential Information and Proprietary Developments and other legitimate business interests. The Protective Covenants are ancillary to the other terms of this Agreement and my employment relationship with HP. This Agreement 3 benefits both me and HP because, among other things, it provides finality and predictability for both me and the company regarding enforceable boundaries on my future conduct. Accordingly. I agree that this Agreement and the restrictions in it should be enforced under common law rules favoring the enforcement of such agreements. For these reasons, I agree that I will not pursue any legal action to set aside or avoid application of the Protective Covenants. 9. Notice of Post-Employment Activlties, If I accept a position with a Competitor at any time within twelve months following termination of my employment with HP, I will promptly give written notice . to the senior Human Resources manager for the HP business sector in which I worked, with a copy to HP's General Counsel, and will provide HP with the information it needs about my new position to determine whether such position would likely lead to a violation of this Agreement (except that r need not provide any information that would include the Competitor's trade secrets). 10. Relief; Extension. I understand that if I violate this Agreement (particularly the Protective Covenants), HP will be entitled to i..yunctive relief by temporary restraining order, temporary injunction, and/or permanent injunction and any other legal and equitable relief allowed by law. Injunctive relief will not exclude other remedies that might apply. If I am found to have violated any restrictions in the Protective Covenants, then the time period for such restrictions will be extended by one day for each day that I am found to have violated them, up to a maximum extension equal to the time period originally prescribed for the restrictions. 11. Severability; Authority for Revision. The provisions of this Agreement will be separately construed. If any provision contained in this Agreement is determined to be void, illegal or unenforceable, in whole or in part. then the other provisions contained herein will remain in full force and effect as if the provision so determined had not been contained herein. If the restrictions provided in this Agreement are deemed unenforceable as written, the parties expressly authorize the court to revise, delete, or add to such restrictions to the extent necessary to enforce the intent of the parties and to provide HP's goodwill, Confidential Information, Proprietary Developments and other business interests with effective protection. The title and paragraph headings in this Agreement are provided for convenience of reference only, and shall not be considered in determining its meaning, intent or applicability. This Agreement will inure to the benefit of the parties' heirs, successors and assigns. 12. Governing Law. This Agreement will be governed by the laws of the state in which 1 reside at the time of its enforcement. Signature: "fov. ¥e-------Date: l .. ' .... (Jt ·Including: California Labor Code Sectio1l2870; Delaware Code Title 19 Section 805; Illinois 765ILCSI060Il-3, "Employees Patent Act"; Kansas Statutes Section 44-130; Minnesota Statutes lJA Section 181.78; North Carolina General Statutes Article lOA, Chapter 66, Commerce and Business, Section 66-57.1; Utah Code Sections 34-39-1 through 34-39-3, "Employment Inventions Act"; Washington Rev. Code, Title 49 RCW: Labor Regulations, Chapter 49.44.140. ARCIPD IE-CA 013008 4 EXHIBITB UP Agreement Reganling Confidential Information and Proprietary Developments Name of Employee: Mark Hurd (20138924) I. Consideration and Relationship to Emnloyment. As a condition of my continued employment with Hewlett-Packard Company or one of its subsidiaries or affiliates (collectively, "HP"). in return for HP's agreement that I will be provided certain confidential and proprietary information, training, and/or customer contacts to assist me in my duties in such employment, and in consideration of my eligibility for a grant of Performance-based Restricted Units under the Hewlett-Packard Company 2004 Stock Incentive Plan, J knowingly agree to restrictions provided for below that will apply during and after my employment by HP. I understand, however, that nothing relating to this Agreement will be interpreted as a contract or commitment whereby HP is deemed to promise continuing employment for a specified duration. My acceptance of this Agreement may be indicated either by a manual signature or by my completion of a computerbased process that duly confirms my agreement to such terms 2. Confidential Information. This Agreement concerns trade secrets, confidential business and technical information, and know-how not generally known to the public (hereinafter "Confidential Information") which is acquired or produced by me in connection with my employment by HP. Confidential Information may include. without limitation, information on HP organizations, staffing, finance, structure" information of employee performance" compensation of others, research and development. manufacturing and marketing, files, keys, certificates, passwords and other computer information, as well as information that UP receives from others under an obligation of confidentiality. T agree: ' (a) to use such information only in the performance of HP duties; (b) to hold such information in confidence and trust; and (c) to use all reasonable precautions to assure that such information is not disclosed to unauthorized persons or used in an unauthorized manner, both during and after my employment with HP. I further agree that any organizational information or staffing information learned by me in connection with my employment by HP is the Confidential fnformation of HP, and I agree that I will not share such information with any recruiters or any other employers, either during or subsequent to my employment with HP; further, I agree that I will not use or permit use of such as a means to recruit or solicit other HP employees away from HP (either for myself or for others). 3. Proprietary Developments. This Agreement also concerns inventions and discoveries (whether or not patentable), designs, works of authorship. mask works, improvements. data, processes, computer programs and software (hereinafter called "Proprietary Developments") that are conceived or made by me alone or with others while r am employed byHP and that relate to the research and development or the business of HP. or that result from work performed by me for HP, or that ate developed, in whole or in part, using HP's equipment, supplies, facilities or trade secrets information. Such Proprietary Developments ate the sole property of HP, and I hereby assign and transfer all rights in such Proprietary Developments to HP. 1 also agree that any works of authorship created by me shall be deemed to be "works made for hire." J further agree for all Proprietary Developments: (a) to disclose them promptly to HP; (b) to sign any assignment document to formally perfect and confirm my assignment of title to HP; (c) to assign any right ofrccovery for past damages to HP; and (d) to execute any other documents deemed necessary by HP to obtain, record and perfect patent, copyright, mask works and/or trade secret protection in all countries, in UP's name and at HP's expense. I understand that HP may delegate these rights. I agree that, if requested. my disclosure, assignment, execution and cooperation duties will be provided to the entity designated by f IP. In compliance with prevailing provisions of relevant state statutes," this Agreement does not apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) to the business of the employer or (ii) to the employer's actual or demonstrably anticipated research or development. or (b) the invention results from any work performed by the employee for the employer. 4. Respect for Rights of Former Employers. I agree to honor any valid disclosure or use restrictions on information or intellectual property known to me and received from any former employers or any other parties prior to my employment by HP. I agree ttat without prior written consent of such former employers or other parties. I will not knowingly use any such information in connection with my HP work or work product, and I will not bring onto the premises of HP any such information in whatever tangible or readable form. 5. Work Produg. The product of all work performed by me during and within the scope of my HP employment including. without limitation, any tiles, presentations, reports. documents, drawings, computer programs, devices and models, will be the sole property of HP. I understand that HP has the sole right to use, sell, license, publish or otherwise disseminate or transfer rights in such work product. 6. HP Property. I will not remove any HP property from HP premises without lIP's permission, Upon termination of my employment with HP, I will return all HP property to HP unless HP's written permission to keep it is obtained. 7. Protediye Covenants. I acknowledge that a simple agreement not to disclose or use HP's Confidential Information or Proprietary Developments after my employment by HP ends would be inadequate, standing alone, to protect BP's legitimate business interests because some activities by a former employee who had held a position like mine would, by their nature, compromise such ConfIdential Information and Proprietary Developments as well as the goodwill and customer relationships that liP will pay me to develop for the company during my employment by HP. r recognize that activities that violate HP's rights in this regard, whether or not intentional, are often undetectable by If? until it is too late to obtain any effective remedy, and that such activities will cause irreparable iqjury to HP. To prevent this kind of irreparable harm, I agree that for a period of twelve months following the termination of my employment with HP, I will abide by the following Protective Covenants: 2 (a) No Contliding Business Adjvlties. 1 will not provide services to a Competitor in any role or position (as an employee, consultant, or otherwise) that would involve Conflicting Business Activities in the Restricted Geographic Area (but while I remain a resident of California and subject to the laws of California. the restriction in this clause (paragraph 7, subpart (a» will apply only to Conflicting Business Activities in the Restricted Geographic Area that result in unauthorized use or disclosure of HP's Confidential Information); (b) No SoUdtation of Customen. r will not (in person or through assistance to others) knowingly participate in soliciting or communicating with any customer of HP in pursuit of a Competing Line of Business if I either had business-related contact with that customer or received Confidential Information about that customer in the last two years of my employment at HP (but while I remain a resident of California and subject to the laws of California, the restriction in this clause (paragraph 7, subpart (b) will apply only to solicitations or communications made with the unauthorized assistance of lIP's Confidential J nformation); (c) No Solkitation of HP EmDlovees. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an liP Employee for the purpose of persuading or helping the HP Employee to end or red.lce his or her employment relationship with HP if I either worked with that HP Employee or received Confidential Information about that HP Employee in the last two years of my employment with HP; and (d) No Solicitation of UP SupDen. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an HP Supplier for the purpose of persuading or helping the liP Supplier to end or modify to HP's detriment an existing business relationship with HP if I eithtr worked with that HP Supplier or received Confidential Information about that HP Supplier in the last two years of my employment with HP. As used here, "Competitor" means an individual, corporation, other business entity or separately operated business unit of an entity that engages in a Competing Line of Business. "Competing Line of Business" means a business that involves a product or service offered by anyone other than HP that would replace or compete with any product or service offered or to be ofi:red by HP with which I had material involvement while employed by liP (unless HP and its subsidiaries are no longer engaged in or planning to engage in that line of business). "Conllkting Business Activities" means job duties or other business-related activities in the United States or in any other country where the HP business units in which I work do business, or management or supervision of such job duties or business-related activities, if such job duties or business-related activities are the same as or similar to the job duties or business-related activities in which I participate or as to which I receive Confidential Information in the last two years of my employment with HP. "Restricted Geographic Area" means the states, provinces or other geographic subdivisions in which I either performed substantial services for HP or managed the work of others for HP in the last two years of my employment with HP. "HP Employee" means an individual employed by or retained as a consultant to HP or its subsidiaries. "HP Supplier" means an individual, corporation. other business entity or separately operated business unit of an entity that regularly provides goods or services to HP or its subsidiaries, including without limitation any OEM, ODM or subcontractor. 3 8. Enforcement. I make these agreements to avoid any future dispute between myself and HP regarding specific restrictions on my post-employment conduct that will be reasonable, necessary and enforceable to protect HP's Confidential Information and Proprietary Developments and other legitimate business interests. The Protective Covenants are ancillary to the other terms of this Agreement and my employment relationship with HP. This Agreement benefits both me and HP because, among other things, it provides finality and predictability for both me and the company regarding enforceable boundaries on my future conduct. Accordingly, I agree that this Agreement and the restrictions in it should be enforced under common law rules favoring the enforcement of such agreements. For these reasons, J agree that I will not pursue any legal action to set aside or avoid application of the Protective Covenants. 9. Notice of Post-Employment Activities. If ( accept a position with a Competitor at any time within twelve months following termination of my employment with HP, I will promptly give written notice to the senior Human Resources manager for the HP business sector in which I worked. with a copy to HP's General Counsel, and will provide HP with the information it needs about my new position to determine whether such position would likely lead to a violation of this Agreement (except that I need not provide any information that would include the Competitor's trade secrets). 10. RelIef; Exten.."Iion. I understand that if I violate this Agreement (particularly the Protective Covenants), HP will be entitled to injum.1ive relief by temporary restraining order, temporary injunction, and/or permanent injunction and any other legal and equitable relief allowed by law. Injunctive relief will not exclude other remedies that might apply. If I am found to have violated any restrictions in the Protective Covenants, then the time period for such restrictions win be extended by one day for each day that I am found to have violated them. up to a maximum extension equal to the time period originally prescnbed for the restrictions. II. Severabi1ity; Authority for Revision; Governing Law. The provisions of this Agreement will be separately construed. If any provision contained in this Agreement is determined to be void, illegal or unenforceable, in whole or in part, then the other provisions contained herein will remain in full force and effect as if the provision so determined had not been contained herein. If the restrictions provided in this Agreement are deemed unenforceable as written, the parties expressly authorize the court to revise, delete, or add to such restrictions to the extent necessary to enforce the intent of the parties and to provide HP's goodwill, Confidential Information, Proprietary Developments and other business interest'! with effective protection. In the event the restrictions provided in this Agreement are deemed unenforceable and cannot bereformed to make them enforceable, then any prior agreements that I have made with HP relating to confidential information or proprietary developments shall not be deemed to have been superseded or otherwise affected by this Agreement, but instead shall remain in effect. The title and paragraph headings in this Agreement are provided for convenience of reference only, and shall not be considered in determining its meaning. intent or applicability. This Agreement will inure to the benefit of the parties' heirs, successors and assigns. This Agreement will be governed by the laws of the state in which I reside at the time of its enforcement. 12. Ag:eptanq by HP. A counterpart of this Agreement haS been manually executed on behalf of HP by a duly authorized officer of Hewlett-Packard Company to indicate HP's acceptance of the terms hereof and HP's covenant to perform its obligations hereunder (including., without limitation, HP's agreementlhat I will be provided certain confidential and proprietary information, training. and/or customer contacts to assist me in my duties). Such acceptance on behalf of HP is conditioned upon my reciprocal agreement to such terms. I acknowledge the 4 sufficiency of HP's acceptance of the terms hereof to establish the mutual rights and responsibilities defined herein. FORHP Signature: lsi Marcela Perez de Alonso (Executive Vice President, Human Resources) Date: January 16, 2009 ~:PLOYEE~ I Y yb Date: 0 2 h , itJ; I I *Including: California Labor Code Section 2870; Delaware Code Title 19 Section 805; Illinois 7651LCS 1 0601] -3, "Employees Patent Act"; Kansas Statutes Section 44-130; Minnesota Statutes 13A Section 181.78; North Carolina General Statutes Article lOA, Chapter 66, Commerce and Business. Section 66-57.1; Utah Code Sections 34-39-1 through 34-39-3, "Employment Inventions Act"; Washington Rev. Code. Title 49 RCW: Labor Regulations. Chapter 49.44. ) 40. ARCIPD IE·Calitbmia1201 08hmrevl20 108 5 EXHIBITC HP Agreement Regarding Confidential Information and Proprietary Developments Mark Hurd, HP Chairman of the Board, Chief Executive Officer and President 1. Consideration and Relationship to Employment. As a condition of my continued employment with Hewlett-Packard Company or one of its subsidiaries or affiliates (collectively, "HP" or the "Company"), in return for HP's agreement that I will be provided certain confidential and proprietary information, training, and/or customer contacts to assist me in my duties in such employment, and in consideration of my eligibility for a grant of Performance-based Restricted Units under the Hewlett-Packard Company 2004 Stock Incentive Plan, I knowingly agree to restrictions provided for below that will apply during and after my employment by HP. I understand, however, that nothing relating to this Agreement will be interpreted as a contract or commitment whereby liP is deemed to promise continuing employment for a specified duration. My acceptance of this Agreement may be indicated either by a manual signature or by my completion of a computer-based process that duly confirms my agreement to such terms. 2. Confidential Information. This Agreement concerns trade secrets, confidential business and technical information, and know-how not generally known to the public (hereinafter "Confidential Information") which is acquired or produced by me in connection with my employment by HP. Confidential Information may include, without limitation. information on HP organizations, staffing. finance, structure, Information of employee performance, compensation of others, research and development, manufacturing and marketing, files, keys, certiflcates, passwords and other computer information, as well as information that HP receives from others under an obligation of confidentiality. I agree: (a) to use such information only in the performance ofHP duties; (b) to hold such information in confidence and trust; and (c) to use all reasonable precautions to assure that such information is not disclosed to unauthorized persons or used in an unauthorized manner, both during and after my employment with HP. I further agree that any organizational information or staffing information learned by me in connection with my, employment by HP is the Confidential Information ofHP, and I agree that I will not share such information with any recruiters or any other employers, either during or subsequent to my employment with HP; further, I agree that I will not use or permit use of such as a means to recruit or solicit other HP employees away from HP (either for myself or for others). 3. Proprietary Developments. This Agreement also concerns inventions and discoveries (whether or not patentable), designs, works of authorship, mask works, improvements. data, processes, computer programs and software (hereinafter called "Proprietary Developments") that are conceived or made by me alone or with others while I am employed by HP and that relate to the research and development or the business of HP, or that result from work performed by me for HP, or that are developed, in whole or in part" using HP's equipment, supplies, facilities or trade secrets information. Such Proprietary Developments are the sole property of HPJ and I hereby assign and transfer all rights in such Proprietary Developments to HP. I also agree that any works of authorship created by me shall be deemed to be "works made for hire." I further agree for all Proprietary Developments: (a) to disclose them promptly to HP; (b) to sign any assignment document to formally perfect and confirm my assignment of title to HP; (c) to assign any right of recovery for past damages to HP; and (d) to execute any other documents deemed necessary by HP to obtain, record and perfect patent, copyright, mask works and/or trade secret protection in all countries, in HP's name and at HP's expense. J understand that HP may assign and/or delegate these rights. I agree that, if requested, my disclosure, assignment, execution and cooperation duties will be provided to the entity designated byHP. In compliance with prevailing provisions of relevant state statutes, * this Agreement does not apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) to the business of the employer or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer. 4. Respect for Rights of Former Employers. I agree to honor any valid disclosure or use restrictions on information or intellectual property known to me and received from any former employers or any other parties prior to my employment by HP. I agree that without prior written consent of such former employers or other parties, I will not knowingly use any such information in connection with my HP work or work product, and I wi11 not bring onto the premises of HP any such information in whatever tangible or readable form. 5. Work Product. The product of all work performed by me during and within the scope of my HP employment including, without limitation, any files, presentations, reports, documents, drawings, computer programs, devices and models, will be the sole property of HP. I understand that HP has the sole right to use, sell, license, publish or otherwise disseminate or transfer rights in such work product. 6. HP PrODcrtv. I will not remove any HP property from HP premises without HP's permission. Upon termination of my employment with HP, I will return all HP property to HP unlessHP's written permission to keep it is obtained. 7. Protective Covenants. I acknowledge that a simple agreement not to disclose or use HP's Confidential Information or Proprietary Developments after my employment by HP ends would be inadequate, standing alone, to protect HP's legitimate business interests because some activities by a former employee who had held a position like mine would, by their nature, compromise such Confidential Information and Proprietary Developments as well as the goodwill and customer relationships that HP will pay me to develop for the company during my employment by HP. I recognize that activities that violate HP's rights in this regard, whether or not intentional, are often undetectable by HP until it is 100 late to obtain any effective remedy. and that such activities will cause. irreparable injury to HP. To prevent this kind of irreparable harm, I agree that for a period of twelve months following the termination of my employment with HP, I will abide by the following Protective Covenants: 2 (a) No Conflicting Business Actiyities. [will not provide services to a Competitor in any role or position (as an employee, consultant, or otherwise) that would involve Conflicting Business Activities (but while I remain a resident of California and subject to the laws of California, the restriction in this clause (paragraph 7, subpart (a» will apply only to Conflicting Business Activities that result in unauthorized use or disclosure of HP's Confidential Information); however, in the event, my employment with HP terminates as a result of a Workforce Restructuring program or similar reduction in force, the restriction in this clause (paragraph 7, subpart (a» will not apply; (b) No Solicitation of Customers. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with any customer of HP in pursuit of a Competing Line of Business if I either had business-related contact with that customer or received Confidential Information about that customer in the last two years of my employment at HP (but while 1 remain a resident of California and subject to the laws of California, the restriction in this clause (paragraph 7, subpart (b) wiIl apply only to solicitations or communications made with the unauthorized assistance of HP's Confidential Information); (c) No Solicitation of HP Employees. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an HP Employee for the purpose of persuading or helping the HP Employee to end or reduce his or her employment relationship with HP if I either worked with that HP Employee or received Confidential Information about that HP Employee in the last two years of my employment with HP; and (d) No Solicitation of UP Suppliers. I will not (in person or through assistance to others) knowingly participate in soliciting or communicating with an HP Supplier for the purpose of persuading or helping the HP Supplier to end or modify to HP's detriment an existing business relationship with HP if 1 either worked with that HP Supplier or received Confidential Information about that HP Supplier in the last two years of my employment with HP. As used here, "Competitor" means an individual, corporation, other business entity or separately operated business unit of an entity that engages in a Competing Line of Business. "Competing Line of Business" means a business that involves a product or service offered by anyone other than HP that would replace or compete with any product or service offered or to be offered by HP with which I had material involvement while employed by HP (unless HP and its subsidiaries are no longer engaged in or planning to engage in that line of business). "Conflicting Business Activities" means job duties or other business-related activities in the United States or in any other country where the HP business units in which I work do business, or management or supervision of such job duties or business-related activities, if such job duties or business-related activities are the same as or similar to the job duties or business-related activities in which I participate or as to which I receive Confidential Information in the last two years of my employment with HP. I acknowledge that given the nature of my role as an executive level employee, my duties involve my having access to Confidential Information relevant to a national or larger geographic area such that Conflicting Business Activities is appropriately a nationwide or larger restriction. "lIP Employee" means an individual employed by or retained as a consultant to HP or its subsidiaries. "HP Supplier" means an individual, corporation, other business entity or separately operated business unit of an entity that 3 regularly provides goods or services to HP or its subsidiaries, including without limitation any OEM, ODM or subcontractor. 8. Enforcement. I make these agreements to avoid any future dispute between myself and HP regarding specific restrictions on my post-employment conduct that will be reasonable, necessary and enforceable to protect HP's Confidential Information and Proprietary Developments and other legitimate business interests. The Protective Covenants are ancillary to the other terms of this Agreement and my employment relationship with HP. This Agreement benefits both me and HP because, among other things, it provides finality and predictability for both me and the Company regarding enforceable boundaries on my future conduct. Accordingly, I agree that this Agreement and the restrictions in it should be enforced under common law rules favoring the enforcement of such agreements. For these reasons, I agree that I will not pursue any legal action to set aside or avoid application of the Protective Covenants. 9. Notice of Post-Employment Activities. If I accept a position with a Competitor at any time within twelve months following termination of my employment with HP, I will promptly give written notice to the senior Human Resources manager for the HP business sector in which I worked, with a copy to HP's General Counsel, and will provide HP with the information it needs about my new position to determine whether such position would likely lead to a violation of this Agreement (except that I need not provide any information that would include the Competitor'S trade secrets). 10. Relief: Extension. I understand that if 1 violate this Agreement (particularly the Protective Covenants), HP will be entitled to injunctive relief by temporary restraining order, temporary injunction, and/or pennanent injunction and any other legal and equitable relief allowed by law. Injunctive relief will not exclude other remedies that might apply. If I am found to have violated any restrictions in the Protective Covenants, then the time period for such restrictions will be extended by one day for each day that I am found to have violated them, up to a maximum extension equal to the time period originally prescribed for the restrictions. 1 I. Severability; Authority for Revision; Governing Law. The provisions of this Agreement will be separately construed. If any provision contained in this Agreement is determined to be void, illegal or unenforceable, in whole or in part. then the other provisions contained herein will remain in full force and effect as if the provision so determined had not been contained herein. If the restrictions provided in this Agreement are deemed unenforceable as written, the parties expressly authorize the court to revise, delete, or add to such restrictions to the extent necessary to enforce the intent of the parties and to provide HP's goodwill, Confidential Information. Proprietary Developments and other business interests with effective protection. In the event the restrictions provided in this Agreement are deemed unenforceable and cannot be reformed to make them enforceable. then any prior agreements that I have made with HP relating to confidential information or proprietary developments shall not be deemed to have been superseded or otherwise affected by this Agreement. but instead shall remain in effect. The title and paragraph headings in this Agreement are provided for convenience of reference only, and shall not be considered in determining its meaning, intent or applicability. This Agreement will inure to the benefit of the parties' heirs, successors and assigns. This Agreement will be governed by the laws of the state in which I reside at the time of its enforcement. 12. Acceptance by UP. A counterpart of this Agreement has been manually executed on behalf of HP by a duly authorized officer of Hewlett-Packard Company to indicate HP's acceptance of the terms hereof and HP's covenant to perform its obligations hereunder (including, without limitation, HP's agreement that I will be provided certain confidential and proprietary 4 information, training, and/or customer contacts to assist me in my duties). Such acceptance on behalf of HP is conditioned upon my reciprocal agreement to such terms. I acknowledge the sufficiency of HP's acceptance of the tenns hereof to establish the mutual rights and responsibilities defined herein. FORHP Signature: lsi Marcela Perez de Alonso (Executive Vice President, Human Resources) Date: December 15, 2009 * Including: California Labor Code Section 2870; Delaware Code Title 19 Section 805; Illinois 765lLCSI0601l-3, "Employees Patent Act"; Kansas Statutes Section 44-130; Minnesota Statutes 13A Section 181.78; North Carolina General Statutes Article lOA, Chapter 66, Commerce and Business, Section 66-57.1; Utah Code Sections 34-39-1 through 34-39-3, "Employment Inventions Act"; Washington Rev. Code, Title 49 RCW: Labor Regulations, Chapter 49.44.140. ARCIPD-CA 120809sigjmr 5 EXHIBITD AUG-06-2010 12:45 Resources Global Profsnls 408 993 4475 .... 1.,1'" '.. : " .. .." 'ilif . , ... 111 ... ·"· ..... 1. "'"' .. SEPARATION AGREEMENt AND RELEASE This Separation Agreement and Release ("Separation Agreement") is entered into by and between Mark V. Hurd ("Executive" or ''yOU'') and Hewlett-Packard Company (the "Company"): and confirms the agreement that has been reached with you in connection with your separation from the Company. 1. Termination of Em.QIQvment. You agree that your separation shall be effective as of August 6, 2010 (the "Separation Date") and as of such dare you shall cease to be employed by the Company and each and every subsidiary or affiliate of the Company in any capacity, As of the Separation Date you shall also resign as a member of the Board of Directors of the Company (as well as of the Board of Directors of any of the Company's subsidiaries). You further agree to execute promptly upon request by the Company any additional documents necessary to effecruere the provisions of this paragraph 1. 2. ~paratjon Pav and Benefits. In consideration of your execution of this Separation Agreement and your compliance with its tenus and conditions, the, Company agrees to payor provide YOll (subject to the: terms and conditions set forth in [his Separation Agreement) with the benefits described in this paragraph 2, which exceed any payment and benefits to which you are otherwise entitled. a. . Within thirty (30) days following (he Separation Date, rhe Company shall pay you an aggregate of S 12.224,693 (the "Separation Amount"), less applicable wirhholdings, in full satisfaction of the Company's obligations under th.e Severance Plan for Executive Officers of Hewlett-Packard Company (the "Severance Plan"). b. If you timely elect continued group medical and dental coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (,'COBRA") The Company will either pay directly Of reimburse you for the COBRA premium payments for you and yocr ¢ii5io1e j~ P.04 ,! :q Ii j:i ~l t !. ~; i,' ',. ,. ji ; I' ~ ~i " ~l .'; U .1 AUG-06-2010 12:47 Resources Global Profsnls 408 993 4475 the Company in advance and in accordance with its policies and procedures established from time to time, 8, ComRany fro_pe:rty. On or prior to the Separation Dare, you shall rerum to [he Company all Company property in your possession or use, including: without limitation, all auromobiles, fax machines. printers, cell phones, credit cards, buildingaccess cards and keys, other electronic equipment, and any records, software or other data from your personal computers or laptops which axe not themselves Company property, however stored, relating to the Company's confidential information. 9. Taxes. The parties acknowledge and agree that: the form and timing of the Separation Amount and the other payments and benefits fa be provided pursuant to this Agreement are intended to be exempt from Of to comply with one or more exceptions to the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations thereunder ("Section 409A"), including rhe requirement for a six-month suspension on payments to "specified employees" as defined in Section 409A that are not otherwise permitted to be paid within the six-month suspension period. The parties further acknowledge and agree that for purposes of Section 409A you do not have discretion with respect to the timing of the payment of any amounts provided under this Separation Agreement. Notwithstanding any provision of this Agreement to the contrary. the Company, it') affiliates, subsidiaries, successors, and each of their respective officers. directors, employees and representatives, neither represern nor warrant the tax treatment under any federal, state. local, or foreign laws or regulations thereunder (individually and collectively referred TO as the "Tax Laws") of any payment or benefits contemplated by this Separaticn Agreement including, but not limited to, when and [0 what extent such pa}menrs or benefits may be subject to tax, penalties and interest under the Tax Laws. 10. Release, a. You agree that, in consideration of this Separation Agreement, you hereby waive, release and forever discbarge any and. all claims and rights which you ever had, now have or may have against the Company and any of its subsidiaries or affiliated companies. and their respective successors and assigns, current and former officers, agents, directors, representatives and employees, various benefits committees, and their respective successors and assigns, heirs, executors and personal and legal representatives. based on any act .. e v enr or omission occurring before you execute this Separation Agreement arising out of during or relating to your employment or services with the Company or the termination of such employment or services, except 3S provided below, This waiver and release includes, but is nor limited to, any claims which could be asserted now or in the furure, ueder: common law, including, but not limited to, breach of express or implied duties, wrongful termination, defamation, or violation of public policy; any policies, practices, or procedures of [he Company; an}' federal or state starctes or regulations including, but not limited to, Title VU cf rhe Civil Rights Act of 1964, as amended, 42 U.S.C, §2000e et seq" the Civil Rights Act of 1866 and 1871, the Americans With Disabilities Act, 42 V.S.C. §12101 et seq., the Employee Retirement P,05 s , 'I ~ ~ AUG-06-2010 12:47 408 993 4475 Resources Global Profsnls "' ......... : wi I", '''''''(4111 I I ""III oJ:\t'\~"' .... ' no. oJ Income Security Act ("£RISA"), 19 U.S.C. ~ 1001 et seq. (excluding those rights relating exclusively to employee pension benefits as governed by 'ERISA), the Family and Medical Leave Act. 29 U.S.C. §2601 fl. seq .. the California Family Rights Act, as amended, the Califomia Fair Employment and Housing Act, as amended, California Labor Code Section 1400 et seq" any conn:act of employment, express Or implied; any provision of any other law, .common or sesrutory, of the United States, California or any applicable state. Notwithstanding rhe foregoing, nothing contained in this paragraph 10.a. shall (i) subj ect to paragraphs 10.c and lO,d and the ADEA Release at Exhibit S, impair any rights or potential claims that you may have under the federal Age Discrimination in Employment Act of '1967 (the "ADEA"); (ii) waive, release or otherwise discharge any claim or Cause of action that cannot legally be waived, including, but not limited to, any claim for unpaid wages, workers' compensation benefits, unemployment benefits and any claims under section 2802 of the California Labor Code: (iii) be construed to prohibit you from bringing appropriate proceedings to enforce this Separarien Agreement; (iv) subject to the-limitalions set forth in Section 3 herein. affect any rights of defense or indemnification, Or to be held harmless, or any coverage under directors and officers liability insurance or any other insurance or rights or claims of contribution or advancement of expenses that you have; or (v) affect any rights es a shareholder of the Company that you have. b. For the purpose of implemenring a full and complete release, you understand and agree that this Separation Agreement is intended to waive and release all claims, if any, which you may have and which you may not now know or suspect to exist in your favor 3.gaiost the Company and any of its subsidiaries or alliliated companies, and their respective successors and assigns, current and former officers. agents, directors, representatives and employees, various benefits comminees, and their respective successors and assigns. heirs, executors and personal and legal representatives and this Separation Agreement: extinguishes those claims. Accordingly, you expressly waive all rights afforded by Section 1542 of the Civil Code of me State of California ("Section I $42'') and any similar statute or regulation in any other applicable jurisdiction. Section 1542 states as follows: . A GENERAL RELEASE DOES NOT EXT'END 1'0 CLAlMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT TH.E Tn'IE OF EXECUTING THE RELEASE, WHICH l.F KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED H1S OR HER SETTLEl\'{ENT WITH THE DE8TOR. c. By signing this Separation Agreement. you represent that you have not and will not in the furore commence any action or proc~edillg arising out of the matters released hereby, and that you will not seek or be entitled IO any award of legal or equitable relief in any such action or proceeding thar may be commenced on your behalf. This Separation Agreement shill I not prevent you from filing JD EMPLOY MEN"! ACT 1. Mark V. Hurd C"EKecurive" or "you") knowingly and voluntarily, on behalf of yourself and your agents, attorneys, successors, assigns, heirs and executors, releases and forever discharges Hewlett-Packard Company (the "Company") and all of their subsidiaries and affiliates, together with all of [heir respective past and present directors, managers, officers. shareholders, partners, employees, agents, attorneys and servants, representatives, administrators and fiduciaries (except that in the case of agents, represenrarives, administrators, anorneys and fiduciaries, onLy to the extent in any way related to his or her employment with, Or the busiMSS affairs of The Company) and each of their predecessors: successors and assigns (collectively', the "Releasees") from any and all claims, charges, complaints, promises. agreements, controversies, liens, demands, causes of action, obligations, suits, disputes, judgments. debts, bonds, bills, covenants. contracts, veriances, trespasses, executions, damages and liabilities of any nature whatsoever relating in any way to your rights under the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), whether known Or unknown, suspected 01' unsuspected, which you or your executors, administrators, successors or assigns ever had, now have. or may hereafter claim TO have against the Releasees in law or equity, arising on or before rhe date this ADEA Release (as defined below) is executed by you, and whether or not previously asserted before ;my state OT federal COUlt or before any state or federal agency or governmental entity (rhe ··ADEA Release"), This ADEA Release includes, without limirarion, any rights 01' claims relating in any way to your employment relationship with the Company or any of the Releasees, or the termination thereof. arising under the ADEA, including compensatory damages, punitive damages, attorney'S fees, costs, expenses, and any other type of damage or relief You represent That you have not commenced or joined in any claim, charge, action or proceeding whatsoever against the Company or any of the Releasees arising out of or relating any of the matters set forth in this ADEA Release. You further agree t.l,.at you shall not be entitl~d CO any personal recovery in any claim, charge, action or proceeding whatsoever against the Company or any of the Releasees for any of the matters set forth in this ADEA Release. 1. The Company has advised you to consult with an attorney of your choosing prior to signing this AD'EA Release. '{Oil represent that you understand and agree that you have the right and have been given the opportunity to review this ADEA Release with an attorney. You further represent that you understand and s.gree that the Company is under no obligation to after you this ADEA Release, and thar you are under no obligation [0 consent to the ADEA. Release, and that you helve entered into this AOEA Release freely and voluntarily. 10 P.11 ,. ,. , .;, :;, II 'I ! d .1' ., AUG-06-2010 12:50 Resources Global Profsnls 408 993 4475 3. You shall have twenty-one (21.1 days to consider chis ADEA Release, and once you have signed rhis ADEA Release, you shall have seven (7) additional days from the date of execution to revoke your consent to this ADEA Release. Any such revocation shall be made in writing so as to be received by the Company's General Counsel prior to the eighth (81ft) day following YOUf execution of this ADEA R(:-l~Ase. If no such revocation occurs. this ADEA Release shall become effective on the eighth (8Ih) day following your execution of this ADEA Release (the "Effective Date"). In the event that you revoke your consent, this ADEA Release shall be null and void. IN WITNESS WHEREOF, the Executive has executed this ADEA Release as of the date set forth below. Date 11 ..:.. ,- .:"·11 ..1"'1' .~-""'''I P.12 I • ~. ~! " , . . ,. ~: ., i' ~I j! I If ., j! i " :, r ::; ,. :i AUG-06-2010 12:50 Resources Global ProTsnls 408 993 4475 August 6~ 2010 To the Hewlett-Packard Company Board of Directors: In connection with the rermination o.f'my employment with Hewlett-Packard Company, I here-by resign as Chairman of the Board, Chief Executive Officer and President and as a member of the Board of Directors of Hewlett-Packard Company, effective immediately. I also hereby resign as a director or officer of each and every subsidiary or affiliate of Hewlett-Packard Company, as applicable. 1 hereby confirm to the Hewlett-Packard Company Board ofO'irectors that my resignation as a member of the Board of Directors is voluntary O\l1d not the result of any disagreement on any matte!' relating to Hewlett-Packard Company's operations. policies Of practices. Sincerely, , .. , ItA ,-",- -. . ..,. •. -. P.13 !. i ., " ,. 'ji " ~;j , ~I ~ i ~; .j ,j .:: :' ;' ~; .:. :. , ~! ! ,. ii r. I" j! i; TOTAL P.13 EXHIBITE Oracle Hires Mark Hurd as President ORACLE' Home Technologies Press Room Press Release Board of Directors Executives Spol
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(Source: Hewlett-Packard) www.hp.com/go/datacentral

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