Preview
FILED
12/19/2023 4:27 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Cassandra Walker DEPUTY
CAUSE NO. DC-23-09778
TOBY NEUGEBAUER, IN THE DISTRICT COURT
Plaintiff,
Vv.
JAMES NICHOLAS AYERS, 191ST JUDICIAL DISTRICT
INDIVIDUALLY AND AS TRUSTEE OF
THE J. NICHOLAS AYERS 2021
IRREVOCABLE TRUST, AND AYERS
FAMILY HOLDINGS, LLC,
Defendants. DALLAS COUNTY, TEXAS
DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE
ORIGINAL ANSWER SUBJECT THERETO
Defendants James Nicholas Ayers, Individually and as Trustee of the J. Nicholas Ayers
2021 Irrevocable Trust, and Ayers Family Holdings, LLC (collectively, “Ayers” or “Defendants”)
hereby file their Motion to Compel Arbitration (the “Motion”) and, in the alternative and subject
to and without waiving the Motion, their Original Answer. In support thereof, Defendants
respectfully show as follows:
MOTION TO COMPEL ARBITRATION
A. The Legal Standard
1 When evaluating this Motion to Compel Arbitration, the Court should apply
ordinary state law principles regarding the formation of contracts and “determine first whether a
valid arbitration agreement exists, and then whether the agreement encompasses the claims
raised.” Am. Standard v. Brownsville Indep. Sch. Dist., 196 S.W.3d 774, 781 (Tex. 2006).
2. The FAA establishes a “liberal federal policy favoring arbitration.” CompuCredit
Corp. v. Greenwood, 565 U.S. 95, 98 (2012); In re Rubiola, 334 S.W.3d 220, 225 (Tex. 2011).
The law and public policy of Texas also favor agreements that resolve legal disputes through
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alternative dispute resolution rather than litigation. See In re Poly-America, L.P., 262 S.W.3d 337,
348 (Tex. 2008). The presumption in favor of arbitration is so strong in Texas that courts resolve
any doubts in favor of arbitration. See, e.g., In re Rubiola, 334 S.W.3d at 225; Cantella & Co. v.
Goodwin, 924 S.W.2d 943, 944 (Tex. 1996).
3 Further, the burden of overcoming the presumption in favor of arbitration is not on
Defendants, but on the party opposing arbitration, which — in this case — is Plaintiff. See Prudential
Sec., Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1995).
B. Plaintiff’s Claims Are Subject to Valid Arbitration Agreements
4 The claims Plaintiff has filed against Defendants in this lawsuit are completely
frivolous, brought in obvious bad faith and response to the significant and meritorious claims
Defendants have asserted against Plaintiff in the pending JAMS arbitration under Case No.
5310000148 (the “JAMS Arbitration”), and should be summarily dismissed with prejudice. Not
only are Plaintiff's claims baseless, Plaintiff did not even file his retaliatory claims in the proper
forum. Plaintiff's claims should be compelled to the JAMS Arbitration and swiftly disposed of
therein.
5 The JAMS Arbitration was initiated pursuant to the arbitration provision in the
Confidentiality and Proprietary Rights Agreement (the “Agreement”) attached hereto as Exhibit
A. See Ex. A § 10. Defendant is subject to the arbitration provision in the Agreement because (i)
Defendant signed the Agreement on behalf of With Purpose, Inc., and (ii) at minimum, Defendant
is a third-party beneficiary of the Agreement and, therefore, can be compelled to arbitration
pursuant to the Agreement’s arbitration provision. See Carr v. Main Carr Dev., LLC, 337 S.W.3d
489, 494-95 (Tex. App.—Dallas 2011, pet. denied) (“A third-party beneficiary to a contract can
compel or be compelled to arbitrate under an arbitration provision in a contract”).
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6. Other than the declaratory judgment claim seeking to avoid the arbitration
provision, the only cause of action Plaintiff has asserted against Defendants in this lawsuit is for
defamation. Plaintiff's groundless defamation claim is clearly a compulsory counterclaim that, if
filed at all (which it should not have been given its frivolous nature), should have been asserted as
a counterclaim in the JAMS Arbitration. See In re State of Texas, No. 10-21-00285-CV, 2022 WL
2840248 at *3 (Tex. App.—Waco July 20, 2022, no pet.) (“The compulsory counterclaim rule is
a means of bringing all logically related claims into a single litigation, through precluding a later
assertion of omitted claims. A counterclaim is logically related to the opposing party’s claim where
separate trials on each of their respective claims would involve a substantial duplication of effort
and time by the parties and courts. The logical relationship test is met when the same facts, which
may or may not be disputed, are significant and logically relevant to both claims.”) (internal
citations omitted).
7
Plaintiff waived any argument that the claims Defendants have asserted against
Plaintiff in the JAMS Arbitration (or any compulsory counterclaims — e.g., Plaintiff's defamation
claim asserted herein) are not arbitrable when Plaintiff decided to file an answer in the JAMS
Arbitration on August 24, 2022 (more than a year ago) without asserting any jurisdictional or
arbitrability challenges. Moreover, in the scheduling order that was agreed to and jointly submitted
by Plaintiff and Defendants in the JAMS Arbitration, Plaintiff doubled down and expressly agreed
that the JAMS Arbitration (and, thus, the claims asserted by Defendants against Plaintiff therein)
are arbitrable.
8 The Texas Supreme Court has held that an arbitration provision encompasses all
claims at issue “unless it can be said with positive assurance that an arbitration clause is not
susceptible of an interpretation which would cover the dispute at issue.” Prudential Secs., 909
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S.W.2d at 899; see also In re FirstMerit Bank, N.A., 52 S.W.3d 749, 755 (Tex. 2001) (orig.
proceeding). It is not a close call here. Pursuant to the arbitration provision in the Agreement and
the agreements and waivers made by Plaintiff in the JAMS Arbitration, the Court should grant this
Motion, compel Plaintiff's claims to the JAMS Arbitration, and dismiss or stay this lawsuit in
favor of the JAMS Arbitration.
9. Alternatively, the Court should defer to the arbitrator in the JAMS Arbitration — the
Honorable Harlan A. Martin — with respect to the issue of arbitrability. The arbitration provision
in the Agreement gives the arbitrator the “primary power” to rule on the issue of arbitrability. See
Ex. A § 10 (“The Parties agree that the arbitrator will have the primary power to decide any
question about the arbitrability of any claim, dispute or other difference between them, and
judgment on the award rendered by the arbitrator may be enforced by any court having jurisdiction
thereof in Dallas, Texas.”)
ALTERNATIVE ANSWER SUBJECT TO AND WITHOUT WAIVING THE MOTION
In the alternative, and subject to and without waiving their Motion to Compel Arbitration,
Defendants hereby file the following Original Answer:
A. General Denial
10. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally
deny the allegations contained in Plaintiff's Original Petition and Application to Stay Arbitration
(and any subsequent petitions filed by Plaintiff) and demand strict proof thereof by a
preponderance of the credible evidence.
B. Defenses
11. The right to plead any and all defenses and/or theories in the alternative is invoked
and all defenses and/or theories are hereby pled, in the alternative, to the extent necessary.
DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE
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12. Defendants assert that Plaintiffs claims are barred, in whole or in part, because
they have no basis in law or in fact.
13. Defendants assert that Plaintiff's claims are barred, in whole or in part, due to
Plaintiff's fraud, misrepresentations, and/or unclean hands.
14. Defendants assert that Plaintiff's claims are barred, in whole or in part, by the
applicable statute of limitations.
15. Defendants assert that Plaintiff is barred from recovery, in whole or in part, by the
doctrines of estoppel, quasi-estoppel, promissory estoppel, equitable estoppel, and/or waiver.
16. Defendants assert that Plaintiff is barred from recovery, in whole or in part, to the
extent Plaintiff failed to mitigate his alleged damages, if any.
17. Defendants specifically deny that all conditions precedent to the claims asserted by
Plaintiff against Defendants have been performed, have occurred, have been satisfied, should be
excused, or have been modified and satisfied, as alleged in paragraph 25 of Plaintiff's Original
Petition.
18. Defendants assert that Plaintiff cannot establish one or more essential element of
each of his claims.
Cc. Right to Amend
19. The right to further amend and/or supplement this pleading, including but not
limited to the assertion of additional defenses, at a future date is reserved.
PRAYER
Defendants respectfully request that the Court grant this Motion and issue an order (i)
compelling to the JAMS Arbitration all of the claims asserted by Plaintiff against Defendants
herein, and (ii) dismissing or staying this action in its entirety in favor of the JAMS Arbitration. In
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the alternative, Defendants respectfully request that, upon final hearing of this action, a take-
nothing judgment be entered against Plaintiff and that Defendants be awarded the reasonable
expenses and costs they incur in this action as well as all other and further relief Defendants show
themselves to be entitled.
Respectfully submitted,
/s/ Rogge Dunn
ROGGE DUNN
State Bar No. 06249500
E-Mail: dunn@trialtested.com
CHASE J. POTTER
State Bar No. 24088245
E-Mail: potter@roggedunngroup.com
ROGGE DUNN GROUP, PC
500 N. Akard Street
Suite 1900
Dallas, Texas 75201
Telephone: (214) 888-5000
Facsimile: (214) 220-3833
ATTORNEYS FOR DEFENDANTS
DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE
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CERTIFICATE OF SERVICE
This certifies that a true and correct copy of the above and foregoing instrument was served
on the Parties’ counsel of record pursuant to the Rules, on this 19th day of December 2023
addressed as follows:
Clay M. Taylor, Esq. v Via E-File / Portal
Christian N. Ellis, Esq. O Via Overnight Delivery
Bonds Ellis Eppich Schafer Jones LLP O Via Hand-Delivery
420 Throckmorton Street, Suite 1000 O Via First Class Mail
Fort Worth, TX 76102 O Via Fax:
Counsel for Toby Neugebauer O Via Email: Clay.Taylor@bondsellis.com
O Via Email: Christian@bondsellis.com
0 Via CMRRR:
/s/ Chase J. Potter
CHASE J. POTTER
DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE
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EXHIBIT A
DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F
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CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
THIS CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT (this “Agreement’”)
is entered into as of October 15, 2021 (the “Effective Date”), by and between With Purpose, Inc., a
Delaware corporation, (the “Company”, together with any subsidiaries, and other corporate affiliates
that currently exist or are formed hereafter, the “Company Group”), and Nick Ayers (the
“Investor”) (the Company and the Investor are collectively referred to herein as the “Parties’).
As a condition to the Investor’s purchase of common stock of the Company pursuant to the stock
purchase agreement therefor (the “Stock Purchase Agreement”), whether directly or through a vehicle
owned or controlled by such Investor, which the Investor acknowledges to be good and valuable
consideration for the Investor’s obligations hereunder, the Company and the Investor hereby agree as set
forth herein. All references herein to the Investor as a “stockholder” shall mean the Investor’s direct or
indirect ownership of common stock of the Company.
1 Confidentiality.
(a) Confidential Informati The Investor understands and acknowledges that, as a
stockholder and in the Investor’s additional capacities in service to the Company as a director,
officer, employee, agent, consultant or otherwise, the Investor will have access to and learn about
confidential, secret, and proprietary documents, materials, data, and other information, in tangible
and intangible form, of and relating to the Company Group and its businesses and existing and
prospective customers, suppliers, investors, and other associated third parties (“Confidential
Information”). The Investor further understands and acknowledges that Confidential Information
and the Company’s ability to reserve it for the exclusive knowledge and use of the Company Group
is of great competitive importance and commercial value to the Company, and that improper use
or disclosure of Confidential Information by the Investor will cause irreparable harm to the
Company Group, for which remedies at law will not be adequate and may also cause the Company
to incur financial costs, loss of business advantage, liability under confidentiality agreements with
third parties, civil damages, and criminal penalties.
For purposes of this Agreement, Confidential Information includes, but is not
limited to, all information not generally known to the public, in spoken, printed, electronic, or any
other form or medium, relating directly or indirectly to: business processes, data analytics
processes, analyses, practices, methods, policies, plans, publications, documents, research,
operations, services, strategies, techniques, agreements, contracts, terms of agreements,
transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets,
computer programs, computer software, applications, operating systems, software design, web
design, work-in-process, databases, device configurations, data, embedded data, data compilations,
metadata, technologies, manuals, records, articles, systems, system elements, neutral networks,
training sets, parameters, rules, ensemble methods, generated code, decision trees, material, sources
of material, supplier information, vendor information, financial information, results, accounting
information, accounting records, legal information, marketing information, advertising
information, pricing information, credit information, design information, payroll information,
staffing information, personnel information, executive lists, developments, reports, internal
controls, security procedures, graphics, drawings, sketches, market studies, sales information,
revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles,
models, ideas, audiovisual programs, inventions, unpublished patent applications, original works
of authorship, discoveries, experimental processes, experimental results, specifications, customer
information, customer lists, client information, client lists, manufacturing information, factory lists,
distributor lists, buyer lists, and information of the Company Group or its businesses or any existing
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or prospective customer, supplier, investor, or other associated third party, or of any other person
or entity that has entrusted information to the Company in confidence.
The Investor understands that the above list is not exhaustive, and that Confidential
Information also includes other information that is marked or otherwise identified as confidential
or proprietary, or that would otherwise appear to a reasonable person to be confidential or
proprietary in the context and circumstances in which the information is known or used.
The Investor understands and agrees that Confidential Information developed by
the Investor in the course of the Investor’s service to the Company shall be subject to the terms and
conditions of this Agreement as if the Company furnished the same Confidential Information to the
Investor in the first instance. Confidential Information shall not include information that is
generally available to and known by the public, provided that such disclosure to the public is
through no direct or indirect fault of the Investor or person(s) acting on the Investor’s behalf.
(b) Disclosure and Use Restrictions.
@ The Investor agrees and covenants:
(A) to treat all Confidential Information as strictly confidential;
@) not to directly or indirectly disclose, publish, communicate, or
make available Confidential Information, or allow it to be disclosed, published,
communicated, or made available, in whole or part, to any entity or person
whatsoever (including other Investors of the Company Group) not having a need
to know and authority to know and to use the Confidential Information in
connection with the business of the Company Group and, in any event, not to
anyone outside of the direct employ of the Company Group, except as required in
the performance of any of the Investor’s authorized duties to the Company and
only after execution of a confidentiality agreement by the third party with whom
Confidential Information will be shared; and
() not to access or use any Confidential Information, and not to copy
any documents, records, files, media, or other resources containing any
Confidential Information, or remove any such documents, records, files, media, or
other resources from the premises or control of the Company Group, except as
required in the performance of any of the Investor’s authorized duties to the
Company. The Investor understands and acknowledges that the Investor’s
obligations under this Agreement regarding any particular Confidential
Information begin immediately and shall continue during and after the Investor’s
service to, or employment by, the Company until the Confidential Information has
become public knowledge other than as a result of the Investor’s breach of this
Agreement or a breach by those acting in concert with the Investor or on the
Investor’s behalf.
(ii) Nothing in this Agreement shall be construed to prevent disclosure of
Confidential Information as may be required by applicable law or regulation, or pursuant
to the valid order of a court of competent jurisdiction or an authorized government agency,
provided that the disclosure does not exceed the extent of disclosure required by such law,
regulation, or order. The Investor shall promptly provide written notice of any such order
to an authorized officer of the Company.
2,
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(iii) Nothing in this Agreement prohibits or restricts the Investor (or Investor’s
attorney) from initiating communications directly with, responding to an inquiry from, or
providing testimony before the Securities and Exchange Commission (SEC), the Financial
Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any
other federal or state regulatory authority.
(iv) Nothing in this Agreement in any way prohibits or is intended to restrict
or impede the Investor from exercising protected rights to the extent that such rights cannot
be waived by agreement, or otherwise disclosing information as permitted by law.
(vy) Investor has immunity under the Economic Espionage Act of 1996, as
amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other provision
of this Agreement:
(A) This Investor will not be held criminally or civilly liable under any
federal or state trade secret law for any disclosure of a trade secret that is made:
(1) in confidence to a federal, state, or local government official, either directly or
indirectly, or to an attorney and solely for the purpose of reporting or investigating
a suspected violation of law; or (2) in a complaint or other document that is filed
under seal in a lawsuit or other proceeding.
@) If the Investor files a lawsuit for retaliation by the Company for
reporting a suspected violation of law, the Investor may disclose the Company’s
trade secrets to the Investor’s attorney and use the trade secret information in the
court proceeding if the Investor (1) files any document containing the trade secret
under seal; and (2) does not disclose the trade secret, except pursuant to court order.
(c) Duration of Confidentiality Obligations. The Investor understands and
acknowledges that the Investor’s obligations under this Agreement with regard to any particular
Confidential Information shall commence immediately upon the Investor first having access to such
Confidential Information (whether before or after the Investor begins service to, or employment
by, the Company) and shall continue until such time as such Confidential Information has become
public knowledge other than as a result of the Investor’s breach of this Agreement or breach by
those acting in concert with the Investor or on the Investor’s behalf.
2. Proprietary Rights.
(a) Work Product. The Investor acknowledges and agrees that all writings, works of
authorship, technology, inventions, discoveries, ideas, and other work product of any nature
whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced
to practice by the Investor individually or jointly with others during the period of the Investor’s
service to the Company and relating in any way to the business or contemplated business, research,
or development of the Company (regardless of when or where the Work Product is prepared or
whose equipment or other resources is used in preparing the same) and all printed, physical, and
electronic copies, all improvements, rights, and claims related to the foregoing, and other tangible
embodiments thereof (collectively, “Work Product’), as well as any and all rights in and to
copyrights, trade secrets, trademarks (and related goodwill), mask works, patents, and other
intellectual property rights therein arising in any jurisdiction throughout the world and all related
rights of priority under international conventions with respect thereto, including all pending and
future applications and registrations therefor, and continuations, divisions, continuations-in-part,
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reissues, extensions, and renewals thereof (collectively, “Intellectual Property Rights”), shall be
the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to,
Company Group information, including business processes, data analytics processes, analyses,
practices, methods, policies, plans, publications, documents, research, operations, services,
strategies, techniques, agreements, contracts, terms of agreements, transactions, potential
transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs,
computer software, applications, operating systems, software design, web design, work-in-process,
databases, device configurations, data, embedded data, data compilations, metadata, technologies,
manuals, records, articles, systems, system elements, neutral networks, training sets, parameters,
tules, ensemble methods, generated code, decision trees, material, sources of material, supplier
information, vendor information, financial information, results, accounting information,
accounting records, legal information, marketing information, advertising information, pricing
information, credit information, design information, payroll information, staffing information,
personnel information, executive lists, developments, reports, internal controls, security
procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs,
formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas,
audiovisual programs, inventions, unpublished patent applications, original works of authorship,
discoveries, experimental process , experimental results, specifications, customer information,
customer lists, client information, client lists, manufacturing information, factory lists, distributor
lists, and buyer lists.
(b) Work Made for Hire; Assignment. The Investor acknowledges that, at all times of
Investor’s service to the Company, to the extent permitted by law, all of the Work Product
consisting of copyrightable subject matter is “work made for hire” as defined in the Copyright Act
of 1976 (17 U.S.C. § 101), and such copyrights are therefore owned by the Company. To the extent
that the foregoing does not apply, the Investor hereby irrevocably assigns to the Company, for no
additional consideration, the Investor’s entire right, title, and interest in and to all Work Product
and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for
all past, present, and future infringement, misappropriation, or dilution thereof, and all rights
corresponding thereto throughout the world. Nothing contained in this Agreement shall be
construed to reduce or limit the Company’s rights, title, or interest in any Work Product or
Intellectual Property Rights so as to be less in any respect than that the Company would have had
in the absence of this Agreement.
(c) Further Assurances; Power of Attorney. During and after the Investor’s service to
the Company, the Investor agrees to reasonably cooperate with the Company at the Company’s
expense to (i) apply for, obtain, perfect, and transfer to the Company the Work Product and
Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (ii) maintain,
protect, and enforce the same, including, without limitation, executing and delivering to the
Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other
documents and instruments as shall be requested by the Company. The Investor hereby irrevocably
grants the Company power of attorney to execute and deliver any such documents on the Investor’s
behalf in the Investor’s name and to do all other lawfully permitted acts to transfer the Work
Product to the Company and further the transfer, issuance, prosecution, and maintenance of all
Intellectual Property Rights therein, to the full extent permitted by law, if the Investor does not
promptly cooperate with the Company’s request (without limiting the rights the Company shall
have in such circumstances by operation of law). The power of attorney is coupled with an interest
and shall not be impacted by the Investor’s subsequent incapacity.
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(d) Moral Rights. To the extent any copyrights are assigned under this Agreement, the
Investor hereby irrevocably waives, to the extent permitted by applicable law, any and all claims
the Investor may now or hereafter have in any jurisdiction to all rights of paternity, integrity,
disclosure, and withdrawal and any other rights that may be known as “moral rights” with respect
to all Work Product and all Intellectual Property Rights therein.
(©) No License. The Investor understands that this Agreement does not, and shall not
be construed to, grant the Investor any license or right of any nature with respect to any Work
Product or Intellectual Property Rights or any Confidential Information, materials, software, or
other tools made available to the Investor by the Company.
() Prior Inventions. Attached hereto as Exhibit A is a list describing all inventions,
original works of authorship, developments, improvements and trade secrets that were made by the
Investor prior to Investor’s service to the Company, relate to the Company’s proposed business,
products or research and development, and are owned in whole or in part by the Investor, (“Prior
Inventions”); or, if no such list is attached or if Exhibit A is unsigned, the Investor represents that
there are no such Prior Inventions. The Investor agrees that the Investor will not incorporate, or
permit to be incorporated, any Prior Invention into a Company product, process or service without
the Company’s prior written consent. Nevertheless, if, in the course of the Investor’s service to the
Company, the Investor incorporates into a Company product, process or service a Prior Invention,
the Investor hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable,
perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of,
distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit
in any other way such Prior Invention as part of or in connection with such product, process or
service, and to practice any method related thereto.
(g) Exception to Assignments. The Investor understands that the provisions of this
Agreement requiring assignment of Work Product to the Company do not apply to any Work
Product that the Investor has developed entirely on the Investor’s own time without using the
Company’s equipment, supplies, facilities, trade secret information or Confidential Information (an
“Other Invention”) except for those Other Inventions that either (i) relate at the time of conception
or reduction to practice of such Other Invention to the Company’s business, or actual or
demonstrably anticipated research or development of the Company or (ii) result from any work that
the Investor has performed for the Company. The Investor will advise the Company promptly in
writing of any Work Product that the Investor believes constitutes an Other Invention and is not
otherwise disclosed on Exhibit A. The Investor agrees that the Investor will not incorporate, or
permit to be incorporated, any Other Invention owned by the Investor or in which the Investor has
an interest into a Company product, process or service without the Company’s prior written
consent. Notwithstanding the foregoing sentence, if, in the course of the Investor’s service to, or
employment by, the Company, the Investor incorporates into a Company product, process or
service an Other Invention owned by the Investor or in which the Investor has an interest, the
Investor hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable,
perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of,
distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit
in any other way such Other Invention as part of or in connection with such product, process or
service, and to practice any method related thereto.
(h) Former Employer Information. The Investor agrees that the Investor will not,
during the Investor’s service to, or employment by, the Company, improperly use, disclose, or
induce the Company to use any confidential or proprietary information or trade secrets of any
former or concurrent employer or other person or entity. The Investor further agrees that the
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Investor will not bring onto the premises of the Company any confidential or proprietary
information or trade secrets belonging to any such employer, person or entity unless consented to
in writing by both the Company and such employer, person or entity.
j) Third Party Information. The Investor recognizes that the Company has received
and, in the future, will receive from third parties their confidential or proprietary information,
subject to a duty on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. The Investor agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Investor’s work for the Company
consistent with the Company’s agreement with such third party.
3 Security.
(a) Security and Access. The Investor agrees and covenants (i) to comply with all
Company Group security policies and procedures as in force from time to time including without
limitation those regarding computer equipment, telephone systems, voicemail systems, facilities
access, monitoring, key cards, access codes, Company Group intranet, internet, social media and
instant messaging systems, computer systems, email systems, computer networks, document
storage systems, software, data security, encryption, firewalls, passwords and any and all other
Company Group facilities, IT resources, and communication technologies (“Facilities and IT and
Access Resources”); (ii) not to access or use any Facilities and IT and Access Resources except as
authorized by Company; and (iii) not to access or use any Facilities and IT and Access Resources
in any manner after the termination of the Investor’s service to, or employment by, the Company,
whether termination is voluntary or involuntary. The Investor agrees to notify the Company
promptly in the event the Investor learns of any violation of the foregoing by others, or of any other
misappropriation or unauthorized access, use, reproduction or reverse engineering of, or tampering
with any Facilities and IT and Access Resources or other Company Group property or materials by
others.
(b) Exit Obligations. Upon (i) voluntary or involuntary termination of the Investor’s
service to, or employment by, the Company or (ii) the Company’s request at any time during the
Investor’s term of service or employment, the Investor shall (a) provide or return to the Company
any and all Company Group property, including keys, key cards, access cards, identification cards,
security devices, Company credit cards, network access devices, computers, cell phones,
equipment, reports, files, books, compilations, work product, email messages, recordings, thumb
drives or other removable information storage devices, hard drives, and data and all Company
Group documents and materials belonging to the Company and stored in any fashion, including but
not limited to those that constitute or contain any Confidential Information or Work Product, that
are in the possession or control of the Investor, whether they were provided to the Investor by the
Company Group or any of its business associates or created by the Investor in connection with the
Investor’s service to, or employment by, the Company; and (b) delete or destroy all copies of any
such documents and materials not returned to the Company that remain in the Investor’s possession
or control, including those stored on any non-Company Group devices, networks, storage locations,
and media in the Investor’s possession or control.
(c) Termination Certification; Address Information. Upon termination of service to,
or separation from employment with, the Company, the Investor agrees to immediately sign and
deliver to the Company the “Termination Certification” attached hereto as Exhibit B.
DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F
1536331E2
4 Audit; Company Technology Systems. The Investor acknowledges that the Investor has no
reasonable expectation of privacy in any computer, technology system, email, handheld device, telephone,
or documents that are used to conduct the business of the Company. As such, the Company has the right to
audit and search all such items and systems, without further notice to the Investor, to ensure that the
Company is licensed to use the software on the Company’s devices in compliance with the Company’s
software licensing policies, to ensure compliance with the Company’s policies, and for any other business-
related purposes in the Company’s sole discretion. The Investor understands that the Investor is not
permitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology
systems and that the Investor shall refrain from copying unlicensed software onto the Company’s
technology systems or using non-licensed software or websites. The Investor understands that it is the
Investor’s responsibility to comply with the Company’s policies governing use of the Company’s
documents and the internet, email, telephone, and technology systems to which the Investor will have access
in connection with service to, or employment by, the Company.
5 Publicity. Investor hereby consents to an
Preview
FILED 12/19/2023 4:27 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Cassandra Walker DEPUTY CAUSE NO. DC-23-09778 TOBY NEUGEBAUER, IN THE DISTRICT COURT Plaintiff, Vv. JAMES NICHOLAS AYERS, 191ST JUDICIAL DISTRICT INDIVIDUALLY AND AS TRUSTEE OF THE J. NICHOLAS AYERS 2021 IRREVOCABLE TRUST, AND AYERS FAMILY HOLDINGS, LLC, Defendants. DALLAS COUNTY, TEXAS DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO Defendants James Nicholas Ayers, Individually and as Trustee of the J. Nicholas Ayers 2021 Irrevocable Trust, and Ayers Family Holdings, LLC (collectively, “Ayers” or “Defendants”) hereby file their Motion to Compel Arbitration (the “Motion”) and, in the alternative and subject to and without waiving the Motion, their Original Answer. In support thereof, Defendants respectfully show as follows: MOTION TO COMPEL ARBITRATION A. The Legal Standard 1 When evaluating this Motion to Compel Arbitration, the Court should apply ordinary state law principles regarding the formation of contracts and “determine first whether a valid arbitration agreement exists, and then whether the agreement encompasses the claims raised.” Am. Standard v. Brownsville Indep. Sch. Dist., 196 S.W.3d 774, 781 (Tex. 2006). 2. The FAA establishes a “liberal federal policy favoring arbitration.” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012); In re Rubiola, 334 S.W.3d 220, 225 (Tex. 2011). The law and public policy of Texas also favor agreements that resolve legal disputes through DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGE 1 20267 001\PLEADINGS Darts DEFENDANTS! MOTION TOCOMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO.D0CX alternative dispute resolution rather than litigation. See In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008). The presumption in favor of arbitration is so strong in Texas that courts resolve any doubts in favor of arbitration. See, e.g., In re Rubiola, 334 S.W.3d at 225; Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996). 3 Further, the burden of overcoming the presumption in favor of arbitration is not on Defendants, but on the party opposing arbitration, which — in this case — is Plaintiff. See Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1995). B. Plaintiff’s Claims Are Subject to Valid Arbitration Agreements 4 The claims Plaintiff has filed against Defendants in this lawsuit are completely frivolous, brought in obvious bad faith and response to the significant and meritorious claims Defendants have asserted against Plaintiff in the pending JAMS arbitration under Case No. 5310000148 (the “JAMS Arbitration”), and should be summarily dismissed with prejudice. Not only are Plaintiff's claims baseless, Plaintiff did not even file his retaliatory claims in the proper forum. Plaintiff's claims should be compelled to the JAMS Arbitration and swiftly disposed of therein. 5 The JAMS Arbitration was initiated pursuant to the arbitration provision in the Confidentiality and Proprietary Rights Agreement (the “Agreement”) attached hereto as Exhibit A. See Ex. A § 10. Defendant is subject to the arbitration provision in the Agreement because (i) Defendant signed the Agreement on behalf of With Purpose, Inc., and (ii) at minimum, Defendant is a third-party beneficiary of the Agreement and, therefore, can be compelled to arbitration pursuant to the Agreement’s arbitration provision. See Carr v. Main Carr Dev., LLC, 337 S.W.3d 489, 494-95 (Tex. App.—Dallas 2011, pet. denied) (“A third-party beneficiary to a contract can compel or be compelled to arbitrate under an arbitration provision in a contract”). DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGE 2 220267 01\PLEADINGS Dkarts DEFENDANTS’ MOTION TOCOMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO.D0CX 6. Other than the declaratory judgment claim seeking to avoid the arbitration provision, the only cause of action Plaintiff has asserted against Defendants in this lawsuit is for defamation. Plaintiff's groundless defamation claim is clearly a compulsory counterclaim that, if filed at all (which it should not have been given its frivolous nature), should have been asserted as a counterclaim in the JAMS Arbitration. See In re State of Texas, No. 10-21-00285-CV, 2022 WL 2840248 at *3 (Tex. App.—Waco July 20, 2022, no pet.) (“The compulsory counterclaim rule is a means of bringing all logically related claims into a single litigation, through precluding a later assertion of omitted claims. A counterclaim is logically related to the opposing party’s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and courts. The logical relationship test is met when the same facts, which may or may not be disputed, are significant and logically relevant to both claims.”) (internal citations omitted). 7 Plaintiff waived any argument that the claims Defendants have asserted against Plaintiff in the JAMS Arbitration (or any compulsory counterclaims — e.g., Plaintiff's defamation claim asserted herein) are not arbitrable when Plaintiff decided to file an answer in the JAMS Arbitration on August 24, 2022 (more than a year ago) without asserting any jurisdictional or arbitrability challenges. Moreover, in the scheduling order that was agreed to and jointly submitted by Plaintiff and Defendants in the JAMS Arbitration, Plaintiff doubled down and expressly agreed that the JAMS Arbitration (and, thus, the claims asserted by Defendants against Plaintiff therein) are arbitrable. 8 The Texas Supreme Court has held that an arbitration provision encompasses all claims at issue “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Prudential Secs., 909 DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGE 3 220267 01\PLEADINGS Darts DEFENDANTS’ MOTION TOCOMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO,D0CK S.W.2d at 899; see also In re FirstMerit Bank, N.A., 52 S.W.3d 749, 755 (Tex. 2001) (orig. proceeding). It is not a close call here. Pursuant to the arbitration provision in the Agreement and the agreements and waivers made by Plaintiff in the JAMS Arbitration, the Court should grant this Motion, compel Plaintiff's claims to the JAMS Arbitration, and dismiss or stay this lawsuit in favor of the JAMS Arbitration. 9. Alternatively, the Court should defer to the arbitrator in the JAMS Arbitration — the Honorable Harlan A. Martin — with respect to the issue of arbitrability. The arbitration provision in the Agreement gives the arbitrator the “primary power” to rule on the issue of arbitrability. See Ex. A § 10 (“The Parties agree that the arbitrator will have the primary power to decide any question about the arbitrability of any claim, dispute or other difference between them, and judgment on the award rendered by the arbitrator may be enforced by any court having jurisdiction thereof in Dallas, Texas.”) ALTERNATIVE ANSWER SUBJECT TO AND WITHOUT WAIVING THE MOTION In the alternative, and subject to and without waiving their Motion to Compel Arbitration, Defendants hereby file the following Original Answer: A. General Denial 10. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny the allegations contained in Plaintiff's Original Petition and Application to Stay Arbitration (and any subsequent petitions filed by Plaintiff) and demand strict proof thereof by a preponderance of the credible evidence. B. Defenses 11. The right to plead any and all defenses and/or theories in the alternative is invoked and all defenses and/or theories are hereby pled, in the alternative, to the extent necessary. DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGE 4 R220267 01\PLEADINGS Darts DEFENDANTS! MOTION TOCOPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO.D0CX 12. Defendants assert that Plaintiffs claims are barred, in whole or in part, because they have no basis in law or in fact. 13. Defendants assert that Plaintiff's claims are barred, in whole or in part, due to Plaintiff's fraud, misrepresentations, and/or unclean hands. 14. Defendants assert that Plaintiff's claims are barred, in whole or in part, by the applicable statute of limitations. 15. Defendants assert that Plaintiff is barred from recovery, in whole or in part, by the doctrines of estoppel, quasi-estoppel, promissory estoppel, equitable estoppel, and/or waiver. 16. Defendants assert that Plaintiff is barred from recovery, in whole or in part, to the extent Plaintiff failed to mitigate his alleged damages, if any. 17. Defendants specifically deny that all conditions precedent to the claims asserted by Plaintiff against Defendants have been performed, have occurred, have been satisfied, should be excused, or have been modified and satisfied, as alleged in paragraph 25 of Plaintiff's Original Petition. 18. Defendants assert that Plaintiff cannot establish one or more essential element of each of his claims. Cc. Right to Amend 19. The right to further amend and/or supplement this pleading, including but not limited to the assertion of additional defenses, at a future date is reserved. PRAYER Defendants respectfully request that the Court grant this Motion and issue an order (i) compelling to the JAMS Arbitration all of the claims asserted by Plaintiff against Defendants herein, and (ii) dismissing or staying this action in its entirety in favor of the JAMS Arbitration. In DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGES R2026701\PLEADINGS\DRaFts\DEFENDANTS' MOTION TOCOPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO,D0CX the alternative, Defendants respectfully request that, upon final hearing of this action, a take- nothing judgment be entered against Plaintiff and that Defendants be awarded the reasonable expenses and costs they incur in this action as well as all other and further relief Defendants show themselves to be entitled. Respectfully submitted, /s/ Rogge Dunn ROGGE DUNN State Bar No. 06249500 E-Mail: dunn@trialtested.com CHASE J. POTTER State Bar No. 24088245 E-Mail: potter@roggedunngroup.com ROGGE DUNN GROUP, PC 500 N. Akard Street Suite 1900 Dallas, Texas 75201 Telephone: (214) 888-5000 Facsimile: (214) 220-3833 ATTORNEYS FOR DEFENDANTS DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGE 6 220267 01\PLEADINGS DRAFT DEFENDANTS! MOTION TOCOPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO.D0CX CERTIFICATE OF SERVICE This certifies that a true and correct copy of the above and foregoing instrument was served on the Parties’ counsel of record pursuant to the Rules, on this 19th day of December 2023 addressed as follows: Clay M. Taylor, Esq. v Via E-File / Portal Christian N. Ellis, Esq. O Via Overnight Delivery Bonds Ellis Eppich Schafer Jones LLP O Via Hand-Delivery 420 Throckmorton Street, Suite 1000 O Via First Class Mail Fort Worth, TX 76102 O Via Fax: Counsel for Toby Neugebauer O Via Email: Clay.Taylor@bondsellis.com O Via Email: Christian@bondsellis.com 0 Via CMRRR: /s/ Chase J. Potter CHASE J. POTTER DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SUBJECT THERETO PAGE7 220267 01\PLEADINGS Darts DEFENDANTS’ MOTION To CoMPEL ARBITRATION AND ALTERNATIVE ORIGINAL ANSWER SURIECT THERETO.D0CX EXHIBIT A DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT THIS CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT (this “Agreement’”) is entered into as of October 15, 2021 (the “Effective Date”), by and between With Purpose, Inc., a Delaware corporation, (the “Company”, together with any subsidiaries, and other corporate affiliates that currently exist or are formed hereafter, the “Company Group”), and Nick Ayers (the “Investor”) (the Company and the Investor are collectively referred to herein as the “Parties’). As a condition to the Investor’s purchase of common stock of the Company pursuant to the stock purchase agreement therefor (the “Stock Purchase Agreement”), whether directly or through a vehicle owned or controlled by such Investor, which the Investor acknowledges to be good and valuable consideration for the Investor’s obligations hereunder, the Company and the Investor hereby agree as set forth herein. All references herein to the Investor as a “stockholder” shall mean the Investor’s direct or indirect ownership of common stock of the Company. 1 Confidentiality. (a) Confidential Informati The Investor understands and acknowledges that, as a stockholder and in the Investor’s additional capacities in service to the Company as a director, officer, employee, agent, consultant or otherwise, the Investor will have access to and learn about confidential, secret, and proprietary documents, materials, data, and other information, in tangible and intangible form, of and relating to the Company Group and its businesses and existing and prospective customers, suppliers, investors, and other associated third parties (“Confidential Information”). The Investor further understands and acknowledges that Confidential Information and the Company’s ability to reserve it for the exclusive knowledge and use of the Company Group is of great competitive importance and commercial value to the Company, and that improper use or disclosure of Confidential Information by the Investor will cause irreparable harm to the Company Group, for which remedies at law will not be adequate and may also cause the Company to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages, and criminal penalties. For purposes of this Agreement, Confidential Information includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic, or any other form or medium, relating directly or indirectly to: business processes, data analytics processes, analyses, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, data, embedded data, data compilations, metadata, technologies, manuals, records, articles, systems, system elements, neutral networks, training sets, parameters, rules, ensemble methods, generated code, decision trees, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, executive lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, buyer lists, and information of the Company Group or its businesses or any existing DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 or prospective customer, supplier, investor, or other associated third party, or of any other person or entity that has entrusted information to the Company in confidence. The Investor understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. The Investor understands and agrees that Confidential Information developed by the Investor in the course of the Investor’s service to the Company shall be subject to the terms and conditions of this Agreement as if the Company furnished the same Confidential Information to the Investor in the first instance. Confidential Information shall not include information that is generally available to and known by the public, provided that such disclosure to the public is through no direct or indirect fault of the Investor or person(s) acting on the Investor’s behalf. (b) Disclosure and Use Restrictions. @ The Investor agrees and covenants: (A) to treat all Confidential Information as strictly confidential; @) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other Investors of the Company Group) not having a need to know and authority to know and to use the Confidential Information in connection with the business of the Company Group and, in any event, not to anyone outside of the direct employ of the Company Group, except as required in the performance of any of the Investor’s authorized duties to the Company and only after execution of a confidentiality agreement by the third party with whom Confidential Information will be shared; and () not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company Group, except as required in the performance of any of the Investor’s authorized duties to the Company. The Investor understands and acknowledges that the Investor’s obligations under this Agreement regarding any particular Confidential Information begin immediately and shall continue during and after the Investor’s service to, or employment by, the Company until the Confidential Information has become public knowledge other than as a result of the Investor’s breach of this Agreement or a breach by those acting in concert with the Investor or on the Investor’s behalf. (ii) Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Investor shall promptly provide written notice of any such order to an authorized officer of the Company. 2, DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 (iii) Nothing in this Agreement prohibits or restricts the Investor (or Investor’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority. (iv) Nothing in this Agreement in any way prohibits or is intended to restrict or impede the Investor from exercising protected rights to the extent that such rights cannot be waived by agreement, or otherwise disclosing information as permitted by law. (vy) Investor has immunity under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement: (A) This Investor will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document that is filed under seal in a lawsuit or other proceeding. @) If the Investor files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Investor may disclose the Company’s trade secrets to the Investor’s attorney and use the trade secret information in the court proceeding if the Investor (1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order. (c) Duration of Confidentiality Obligations. The Investor understands and acknowledges that the Investor’s obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Investor first having access to such Confidential Information (whether before or after the Investor begins service to, or employment by, the Company) and shall continue until such time as such Confidential Information has become public knowledge other than as a result of the Investor’s breach of this Agreement or breach by those acting in concert with the Investor or on the Investor’s behalf. 2. Proprietary Rights. (a) Work Product. The Investor acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, ideas, and other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by the Investor individually or jointly with others during the period of the Investor’s service to the Company and relating in any way to the business or contemplated business, research, or development of the Company (regardless of when or where the Work Product is prepared or whose equipment or other resources is used in preparing the same) and all printed, physical, and electronic copies, all improvements, rights, and claims related to the foregoing, and other tangible embodiments thereof (collectively, “Work Product’), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), mask works, patents, and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 reissues, extensions, and renewals thereof (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company. For purposes of this Agreement, Work Product includes, but is not limited to, Company Group information, including business processes, data analytics processes, analyses, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, data, embedded data, data compilations, metadata, technologies, manuals, records, articles, systems, system elements, neutral networks, training sets, parameters, tules, ensemble methods, generated code, decision trees, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, executive lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental process , experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists. (b) Work Made for Hire; Assignment. The Investor acknowledges that, at all times of Investor’s service to the Company, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. § 101), and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, the Investor hereby irrevocably assigns to the Company, for no additional consideration, the Investor’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement. (c) Further Assurances; Power of Attorney. During and after the Investor’s service to the Company, the Investor agrees to reasonably cooperate with the Company at the Company’s expense to (i) apply for, obtain, perfect, and transfer to the Company the Work Product and Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (ii) maintain, protect, and enforce the same, including, without limitation, executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. The Investor hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Investor’s behalf in the Investor’s name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, issuance, prosecution, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Investor does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be impacted by the Investor’s subsequent incapacity. 4 DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 (d) Moral Rights. To the extent any copyrights are assigned under this Agreement, the Investor hereby irrevocably waives, to the extent permitted by applicable law, any and all claims the Investor may now or hereafter have in any jurisdiction to all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights” with respect to all Work Product and all Intellectual Property Rights therein. (©) No License. The Investor understands that this Agreement does not, and shall not be construed to, grant the Investor any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to the Investor by the Company. () Prior Inventions. Attached hereto as Exhibit A is a list describing all inventions, original works of authorship, developments, improvements and trade secrets that were made by the Investor prior to Investor’s service to the Company, relate to the Company’s proposed business, products or research and development, and are owned in whole or in part by the Investor, (“Prior Inventions”); or, if no such list is attached or if Exhibit A is unsigned, the Investor represents that there are no such Prior Inventions. The Investor agrees that the Investor will not incorporate, or permit to be incorporated, any Prior Invention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of the Investor’s service to the Company, the Investor incorporates into a Company product, process or service a Prior Invention, the Investor hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of or in connection with such product, process or service, and to practice any method related thereto. (g) Exception to Assignments. The Investor understands that the provisions of this Agreement requiring assignment of Work Product to the Company do not apply to any Work Product that the Investor has developed entirely on the Investor’s own time without using the Company’s equipment, supplies, facilities, trade secret information or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or reduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the Company or (ii) result from any work that the Investor has performed for the Company. The Investor will advise the Company promptly in writing of any Work Product that the Investor believes constitutes an Other Invention and is not otherwise disclosed on Exhibit A. The Investor agrees that the Investor will not incorporate, or permit to be incorporated, any Other Invention owned by the Investor or in which the Investor has an interest into a Company product, process or service without the Company’s prior written consent. Notwithstanding the foregoing sentence, if, in the course of the Investor’s service to, or employment by, the Company, the Investor incorporates into a Company product, process or service an Other Invention owned by the Investor or in which the Investor has an interest, the Investor hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such product, process or service, and to practice any method related thereto. (h) Former Employer Information. The Investor agrees that the Investor will not, during the Investor’s service to, or employment by, the Company, improperly use, disclose, or induce the Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity. The Investor further agrees that the 5 DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 Investor will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer, person or entity unless consented to in writing by both the Company and such employer, person or entity. j) Third Party Information. The Investor recognizes that the Company has received and, in the future, will receive from third parties their confidential or proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. The Investor agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Investor’s work for the Company consistent with the Company’s agreement with such third party. 3 Security. (a) Security and Access. The Investor agrees and covenants (i) to comply with all Company Group security policies and procedures as in force from time to time including without limitation those regarding computer equipment, telephone systems, voicemail systems, facilities access, monitoring, key cards, access codes, Company Group intranet, internet, social media and instant messaging systems, computer systems, email systems, computer networks, document storage systems, software, data security, encryption, firewalls, passwords and any and all other Company Group facilities, IT resources, and communication technologies (“Facilities and IT and Access Resources”); (ii) not to access or use any Facilities and IT and Access Resources except as authorized by Company; and (iii) not to access or use any Facilities and IT and Access Resources in any manner after the termination of the Investor’s service to, or employment by, the Company, whether termination is voluntary or involuntary. The Investor agrees to notify the Company promptly in the event the Investor learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction or reverse engineering of, or tampering with any Facilities and IT and Access Resources or other Company Group property or materials by others. (b) Exit Obligations. Upon (i) voluntary or involuntary termination of the Investor’s service to, or employment by, the Company or (ii) the Company’s request at any time during the Investor’s term of service or employment, the Investor shall (a) provide or return to the Company any and all Company Group property, including keys, key cards, access cards, identification cards, security devices, Company credit cards, network access devices, computers, cell phones, equipment, reports, files, books, compilations, work product, email messages, recordings, thumb drives or other removable information storage devices, hard drives, and data and all Company Group documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of the Investor, whether they were provided to the Investor by the Company Group or any of its business associates or created by the Investor in connection with the Investor’s service to, or employment by, the Company; and (b) delete or destroy all copies of any such documents and materials not returned to the Company that remain in the Investor’s possession or control, including those stored on any non-Company Group devices, networks, storage locations, and media in the Investor’s possession or control. (c) Termination Certification; Address Information. Upon termination of service to, or separation from employment with, the Company, the Investor agrees to immediately sign and deliver to the Company the “Termination Certification” attached hereto as Exhibit B. DocuSign Envelope ID: 4982C637-B420-45F6-8C75-00F 1536331E2 4 Audit; Company Technology Systems. The Investor acknowledges that the Investor has no reasonable expectation of privacy in any computer, technology system, email, handheld device, telephone, or documents that are used to conduct the business of the Company. As such, the Company has the right to audit and search all such items and systems, without further notice to the Investor, to ensure that the Company is licensed to use the software on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the Company’s policies, and for any other business- related purposes in the Company’s sole discretion. The Investor understands that the Investor is not permitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems and that the Investor shall refrain from copying unlicensed software onto the Company’s technology systems or using non-licensed software or websites. The Investor understands that it is the Investor’s responsibility to comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and technology systems to which the Investor will have access in connection with service to, or employment by, the Company. 5 Publicity. Investor hereby consents to an