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1 DENNIS R. MURPHY, SBN 51215
SHAWN M. JOOST, SBN 148391
2 MURPHY AUSTIN ADAMS SCHOENFELD LLP
555 Capitol Mall, Suite 850
3 Sacramento, CA 95814
Telephone: (916) 446-2300
4 Facsimile: (916) 503-4000
Email: dmurphy@murphyaustin.com
5 Email: sjoost@murphyaustin.com
6 ALAN D. ROSE, JR., MA SBN 628871
SAMMY S. NABULSI, MA SBN 691503
7 ROSE LAW PARTNERS LLP
One Beacon Street, 23rd Floor
8 Boston, MA 02108
Telephone: (617) 536-0040
9 Facsimile: (617) 536-4400
Email: adrjr@rose-law.net 05/04/2020
10 Email: ssn@rose-law.net
11 (pro hac vice applications pending)
MURPHY AUSTIN ADAMS SCHOENFELD LLP
12 Attorneys for Plaintiff
INVASIX, INC.
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF PLACER
16
S-CV-0044836
17 INVASIX, INC., a Delaware Corporation, Case No.
18 Plaintiff, COMPLAINT FOR:
1. MISAPPROPRIATION OF TRADE
19 v. SECRETS, Del. Code tit. 6, § 2002(a)
20 ELIJAH WHEELER, and DOES 1-10, 2. MISAPPROPRIATION OF TRADE
inclusive, SECRETS, Cal. Civ. Code § 3426,
21 et seq.
Defendants. 3. BREACH OF CONTRACT
22
23
24 Plaintiff Invasix, Inc. alleges:
25 FACTUAL ALLEGATIONS
26 1. Plaintiff Invasix, Inc. (“Invasix”) is a corporation formed under the laws of the
27 State of Delaware with its principal place of business at 20996 Bake Parkway, Suite 106, Lake
28 Forest, California 92630.
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1 2. Defendant Elijah Wheeler is an individual residing at 722 Equinox Loop, Lincoln,
2 Placer County, California 95648.
3 3. The true names and capacities, whether individual, corporate, associate or
4 otherwise, of defendants Does 1 through 10 are unknown to Invasix, who therefore, sues such
5 defendants by such fictitious names and will amend this Complaint to show their true names and
6 capacities when ascertained. Invasix is informed and believes that each of these Doe defendants
7 is responsible in some manner for the events and happenings herein referred to and thereby
8 proximately caused the injuries and damages to Invasix as herein alleged.
9 4. Invasix is informed and believes and thereon alleges that at all times herein
10 mentioned, defendants and each of them, were the agents, servants, employees, and
11 representatives of each of the remaining defendants and were acting within the scope of their
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12 authority as such agents, servants, employees, and representatives, and with the knowledge,
13 consent, permission, approval and ratification of the remaining defendants, and each of them.
14 Invasix will seek leave of this Court to amend this Complaint to show the true nature and extent
15 of the relationships of the defendants when said relationships have been fully ascertained.
16 5. Invasix is a manufacturer, distributor, and provider of medical devices used in
17 plastic surgery, gynecology, dermatology, and ophthalmology.
18 6. Defendant was hired by Invasix as a Senior District Sales Manager on
19 November 1, 2018.
20 7. In his role as Senior District Sales Manager, Defendant was responsible for
21 identifying and generating sales leads; cold calling and developing relationships with
22 dermatologists, plastic surgeons, and other physicians; and selling Invasix’s medical devices.
23 8. As Senior District Sales Manager, Defendant was also responsible for providing
24 sales support at workshops, tradeshows, sales meetings, and seminars.
25 9. Defendant was based in and expected to perform his job responsibilities in six
26 territories: Northern California, Oregon, Washington, Alaska, Hawaii, and Idaho.
27 10. In order to perform the responsibilities of Senior District Sales Manager,
28 Defendant had to maintain an understanding of the applications, specifications, cost, and
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1 performance of Invasix’s medical devices.
2 11. In order to assist Defendant with the responsibilities of Senior District Sales
3 Manager, Invasix provided Defendant access to various documents containing confidential
4 marketing and sales support strategies, specification and operations information for Invasix’s
5 medical devices, and data from independent market research performed by Invasix (“Confidential
6 Information”).
7 12. At the time of hiring, Defendant entered into and executed an Employment
8 Agreement with Invasix. A true and accurate copy of the Employment Agreement is attached
9 hereto as Exhibit A and incorporated herein by reference.
10 13. Paragraph 4(c) of the Employment Agreement provides, “[o]n termination of
11 Employee’s employment, by either party, the Employee shall return all Company property,
MURPHY AUSTIN ADAMS SCHOENFELD LLP
12 including, without limitation, demonstration units/systems, documents, reports, memoranda, files,
13 telephones, manuals, computer equipment, programs, software and discs, whether or not
14 generated during Employee’s engagement with the Company, and all other items which are the
15 property of the Company, including without limitation all Proprietary Information.”
16 14. The Employment Agreement defines “Proprietary Information” as “confidential
17 specifications, know-how, strategic or technical data, marketing research data, product research
18 and development data, manufacturing techniques, confidential customer lists, sources of supply
19 and trade secrets, in any form, including, without limitation, oral, written or electronic form.”
20 15. Invasix developed the Confidential and Proprietary Information over a significant
21 period of time and at substantial expense and effort.
22 16. The Confidential and Proprietary Information derives actual and potential
23 independent economic value from not being generally known to the public or to other persons
24 who can obtain economic value from its disclosure or use.
25 17. Invasix took reasonable steps to protect the secrecy and confidentiality of this
26 Confidential and Proprietary Information, including restricting access to the Confidential and
27 Proprietary Information to those employees of Invasix who must use the Confidential and
28 Proprietary Information in performing their agreements and employment duties with Invasix and
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1 requiring that employees, including the Defendant, execute the Employment Agreement.
2 18. Paragraph 4(c) of the Employment Agreement further provides, “[t]he Employee
3 shall not retain any copies, reproductions, summaries, and/or excerpts of any such Company
4 property or documentation.”
5 19. Finally, Paragraph 4(c) of the Employment Agreement provides, “[f]ollowing
6 termination of employment and before the Company’s final payment of compensation, if any, due
7 to the Employee, the Employee will sign and deliver to the Company an acknowledgement
8 confirming that all such items have been returned to the Company and that all of the Company’s
9 electronic information has been removed from any computer equipment in the possession of the
10 Employee and that no copies have been retained by the Employee.”
11 20. Paragraphs 5(c)(i) and 5(c)(ii) of the Employment Agreement prohibit Defendant
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12 from disclosing “any Proprietary Information to any person other than (A) [Invasix] or authorized
13 employees thereof at the time of such disclosure, (B) such other persons to whom the Employee
14 has been specifically instructed to make disclosure by the Board, or (C) agents or representatives,
15 including but not limited to attorneys and accountants, of [Invasix] and in all such cases only to
16 the extent required in the course of the Employee’s services to [Invasix]” and use “any
17 Proprietary Information, for his/her own benefit or for the benefit of any other person or entity.”
18 21. Paragraph 7 of the Employment Agreement provides that, “[t]he Employee
19 acknowledges that any breach of the confidentiality and restrictive covenant provisions contained
20 in this Agreement is likely to result in irreparable injury to [Invasix], which cannot be made
21 whole by monetary damages or a remedy at law alone. Accordingly, [Invasix], or any member or
22 members thereof, in addition to any other remedy to which it may be entitled by law or in equity,
23 shall be entitled to seek both a temporary and permanent injunction (to the extent permitted by
24 law or equity) restraining the Employee from committing or continuing any such violation of this
25 Agreement or to prevent breaches of this Agreement, and to an order compelling specific
26 performance of this Agreement without necessity of proving actual damages.”
27 22. Paragraph 7 of the Employment Agreement also provides that “[t]he Employee
28 will reimburse [Invasix] for all costs and expenses, including without limitation, reasonable
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1 attorneys’ fees or legal costs on a full indemnity basis, incurred by [Invasix], or any member(s)
2 thereof, in enforcing this Agreement.”
3 23. As a result of his employment by Invasix, and while in a position of responsibility,
4 trust and confidence, Defendant learned about Invasix’s operations and products, and was granted
5 access to and gained information about the Confidential and Proprietary Information that is the
6 property of Invasix including, without limitation, Invasix’s entire marketing and production plans,
7 details as to the types of medical devices sold by Invasix and the operation and specification of
8 such devices, and independent market research performed by Invasix concerning Invasix’s
9 medical devices and their uses.
10 24. On May 3, 2019, Defendant resigned from his position of Senior District Sales
11 Manager at Invasix.
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12 25. Upon information and belief, Defendant became employed by Viora, Inc.
13 (“Viora”) in May 2019.
14 26. Viora is a direct competitor of Invasix in the manufacture, distribution, and sale of
15 medical devices used in plastic surgery, gynecology, dermatology, and ophthalmology.
16 27. Upon learning of Defendant’s subsequent employment by Viora, Invasix sent a
17 letter to Defendant, dated May 22, 2019, reminding Defendant of his surviving contractual
18 obligations under the Employment Agreement, including the obligations not to use or disclose
19 Invasix’s Confidential or Proprietary Information to third parties and to return all documents,
20 reports, memoranda, and files in Defendant’s possession to Invasix. A copy of the May 22, 2019
21 letter was sent to Viora. A true and correct copy of Invasix’s May 22, 2019 letter is attached
22 hereto as Exhibit B and incorporated herein by reference.
23 28. Upon his resignation, Defendant did not return to Invasix its Confidential or
24 Proprietary Information, including any documents, reports, memoranda, files, or manuals
25 pursuant to the Employment Agreement notwithstanding such requirement in the Employment
26 Agreement.
27 29. Upon his resignation, Defendant did not sign and deliver to Invasix an
28 acknowledgement confirming that all Confidential and Proprietary Information, including such
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1 documents, reports, memoranda, files, or manuals have been returned to Invasix and that all of
2 Invasix’s electronic information has been removed from any computer equipment in the
3 possession of the Defendant and that no copies have been retained by the Defendant
4 notwithstanding such requirement in the Employment Agreement.
5 30. On May 14, 2019, while employed at Viora, Defendant sent an e-mail to Viora’s
6 Chief Executive Officer, Andrea Trofimuk, and Viora’s Vice President of Sales, Bill Scott,
7 containing several documents belonging to Invasix and describing Invasix’s trade secrets and
8 Confidential and Proprietary Information.
9 31. The documents conveyed by the Defendant to Invasix’s competitor, Viora,
10 contained sales pitch decks used by Invasix sales representatives to market and sell Invasix
11 medical devices, internal marketing instructions and sales support materials describing Invasix’s
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12 marketing and sales support strategies, specification and operations information for Invasix’s
13 medical devices, and data and outcomes arising from independent market research performed by
14 Invasix.
15 32. Invasix learned of Defendant’s disclosure of Invasix’s trade secrets and
16 Confidential and Proprietary Information to Viora when on November 25, 2019, Viora’s Bill
17 Scott sent a LinkedIn® message and subsequent text message to Invasix’s Daniel Wilson to
18 notify Wilson that Defendant shared Invasix’s trade secrets and Confidential and Proprietary
19 Information with Scott and Viora’s CEO on May 14, 2019.
20 33. After learning of Defendant’s wrongful disclosure and breach of the Employment
21 Agreement, Invasix sent a letter to Defendant on December 31, 2019, demanding that Defendant
22 locate, provide a full accounting of, and return all of Invasix’s documents; and that Defendant
23 destroy Invasix’s documents in his possession. A true and correct copy of Invasix’s
24 December 31, 2019 letter is attached hereto as Exhibit C and incorporated herein by reference.
25 34. The December 31 letter also demanded that Defendant sign a declaration and
26 affirm that he has not misappropriated or used Invasix’s trade secrets and Confidential and
27 Proprietary Information in the development of Viora’s or Defendant’s current employer’s
28 advertising and marketing materials; that Defendant did not disclose the trade secrets and
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1 Confidential and Proprietary Information to any employees, directors, or officers of his current
2 employer or any third party; and that Defendant will not misappropriate, use, or disclose Invasix’s
3 trade secrets and Confidential and Proprietary Information in the future.
4 35. On January 3, 2020, Invasix sent a letter to Viora similarly demanding that Viora
5 locate, provide a full accounting of, and return all of Invasix’s documents shared with Viora by
6 Defendant and that Viora destroy Invasix’s documents in its possession. The January 3, 2020
7 letter further demanded that Viora similarly sign a declaration and affirm that Viora has not
8 misappropriated or used Invasix’s trade secrets and Confidential and Proprietary Information to
9 support Viora’s business or Viora’s marketing and advertising materials and strategies; that Viora
10 has not shared Invasix’s trade secrets and Confidential and Proprietary Information with Invasix’s
11 employees, directors, or officers or any third parties; and that Viora will not misappropriate,
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12 possess, use, or disclose Invasix’s trade secrets and Confidential and Proprietary Information in
13 the future. By letter dated January 10, 2020, Viora, through counsel, supplied Invasix with an
14 accounting of Invasix’s Confidential and Proprietary documents shared with Viora by Defendant.
15 Viora further represented that it would agree to return or destroy all of the disclosed documents
16 and information misappropriated and disclosed by Defendant.
17 36. Defendant, however, has refused to sign the declaration.
18 CAUSES OF ACTION
19 FIRST CAUSE OF ACTION
(Misappropriation of Trade Secrets |Under Delaware
20 Uniform Trade Secrets Act, Del. Code tit. 6, § 2002(a))
21 37. Invasix hereby repeats and realleges the factual allegations contained in
22 Paragraphs 1 through 36 and incorporates them herein.
23 38. Paragraph 12(e) of the Employment Agreement provides that “[t]his Agreement,
24 and the rights and remedies provided hereunder, and all claims, disputes and controversies arising
25 hereunder or related thereto, shall be governed by and construed under and enforced in
26 accordance with the laws of the State of Delaware, without reference to choice of law or conflicts
27 of law principles.”
28 39. Upon information and belief, Defendant, while employed by Viora, used Invasix’s
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1 trade secrets and Confidential and Proprietary Information and made it possible for Viora to use
2 Invasix’s trade secrets and Confidential and Proprietary Information to compete with Invasix.
3 40. The wrongful disclosure by Defendant of Invasix’s trade secrets and Confidential
4 and Proprietary Information entrusted to Defendant has given Defendant and Defendant’s current
5 and past employers a substantial competitive advantage to which they are not entitled.
6 41. Defendant knew or had reason to know that the Confidential and Proprietary
7 Information gained by Defendant as a result of his employment by Invasix contained trade secrets
8 and Confidential and Proprietary Information of Invasix in that the information had independent
9 economic value and was not generally known to the public or others and that Defendant and
10 Defendant’s employer could have obtained economic value from Defendant’s disclosure or use of
11 the information.
MURPHY AUSTIN ADAMS SCHOENFELD LLP
12 42. Defendant misappropriated Invasix’s trade secrets by the wrongful disclosure of
13 such information to Viora, without the consent of Invasix, while knowing that Defendant acquired
14 the trade secrets and Confidential and Proprietary Information under circumstances giving rise to
15 a duty to maintain their secrecy.
16 43. Invasix has suffered irreparable harm as a result of Defendants’ activities and will
17 continue to suffer irreparable harm that cannot adequately be remedied at law unless Defendants
18 are enjoined from engaging in any further such acts of misappropriation.
19 44. In the absence of an injunction, Defendant will continue to violate Invasix’s rights
20 in the ways discussed above because Invasix is informed and believes, and thereon alleges, that
21 Defendant is currently employed by another competitor of Invasix.
22 WHEREFORE, Invasix prays for judgment as set forth below.
23 SECOND CAUSE OF ACTION
(Misappropriation of Trade Secrets under California
24 Uniform Trade Secrets Act, Civ. Code Section 3426, et seq.)
25 45. Invasix hereby repeats and realleges the factual allegations contained in
26 Paragraphs 1 through 44 and incorporates them herein.
27 46. Over a substantial period of years, and at significant effort and expense, Invasix
28 developed the Confidential and Proprietary Information. The Confidential and Proprietary
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1 Information constitute trade secrets because they derive significant economic value for Invasix
2 from not being generally known by the public or Invasix’s competitors, who would obtain
3 economic value from their disclosure.
4 47. Invasix has made reasonable efforts to preserve the confidentiality of the
5 Confidential and Propriety Information that constitute Invasix’s trade secrets by, among other
6 things, requiring employees, including Defendant, to sign confidentiality agreements and by
7 disclosing the Confidential and Proprietary Information only to employees with a need to know.
8 48. Upon information and belief, Defendant, while employed by Viora, used Invasix’s
9 trade secrets and Confidential and Proprietary Information and made it possible for Viora to use
10 Invasix’s trade secrets and Confidential and Proprietary Information to compete with Invasix.
11 49. The wrongful disclosure by Defendant of Invasix’s trade secrets and Confidential
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12 and Proprietary Information entrusted to Defendant has given Defendant and Defendant’s current
13 and past employers a substantial competitive advantage to which they are not entitled.
14 50. The foregoing actions of Defendant constitute misappropriations of Invasix’s trade
15 secrets. Invasix is informed and believes that investigation and discovery will reveal further
16 improper uses by Defendant of Invasix’s trade secrets.
17 51. The actions of all Defendants constitute misappropriation of trade secrets under
18 California Civil Code Section 3426, et seq.
19 52. Invasix has suffered irreparable harm as a result of Defendants’ activities and will
20 continue to suffer irreparable harm that cannot adequately be remedied at law unless Defendants
21 are enjoined from engaging in any further such acts of misappropriation.
22 53. In the absence of an injunction, Defendant will continue to violate Invasix’s rights
23 in the ways discussed above because Invasix is informed and believes, and thereon alleges, that
24 Defendant is currently employed by another competitor of Invasix.
25 WHEREFORE, Invasix prays for judgment as set forth below.
26 ///
27 ///
28 ///
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1 THIRD CAUSE OF ACTION
(Breach of Contract)
2
3 54. Invasix hereby repeats and realleges the factual allegations contained in
4 Paragraphs 1 through 53 and incorporates them herein.
5 55. At the time Invasix and Defendant entered into the Employment Agreement, the
6 consideration that Invasix was to pay under the Employment Agreement was adequate.
7 56. The Employment Agreement is just and reasonable as to Defendant.
8 57. Invasix has at all times performed the terms of the Employment Agreement in the
9 manner specified by the Employment Agreement.
10 58. Invasix has demanded that Defendant comply with the terms of the Employment
11 Agreement.
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12 59. Defendant has failed and refused, and continues to refuse, to comply with the
13 terms of the Employment Agreement as required in that Defendant retained and did not return or
14 destroy the documents, reports, memoranda, files, and manuals belonging to Invasix, including
15 Invasix’s trade secrets and Confidential and Proprietary information, upon Defendant’s
16 resignation from Invasix.
17 60. Defendant has failed and refused, and continues to refuse, to comply with the
18 terms of the Employment Agreement as required in that Defendant did not sign and deliver to
19 Invasix an acknowledgement confirming that all such items have been returned to Invasix and all
20 of Invasix’s electronic information has been removed from any computer equipment in the
21 possession of Defendant and that no copies have been retained by Defendant.
22 61. Defendant further breached the Employment Agreement by disclosing Invasix’s
23 trade secrets and Confidential and Proprietary information when Defendant e-mailed to Viora’s
24 CEO and Vice President of Sales Invasix’s documents containing trade secrets and Confidential
25 and Proprietary Information.
26 62. In the absence of an order for specific performance, Defendant will continue to
27 violate Invasix’s rights by breaching the Employment Agreement in the ways discussed above
28 because Invasix is informed and believes, and thereon alleges that, Defendant is currently
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1 employed by another competitor of Invasix.
2 63. Invasix has no adequate remedy at law and is entitled to specific performance of
3 the terms and conditions of the Employment Agreement.
4 64. Invasix is entitled to compensation incidental to a decree of specific performance
5 by virtue of the delay of Defendant in complying with the terms and conditions of the
6 Employment Agreement, according to proof.
7 WHEREFORE, Invasix prays for judgment as set forth below.
8 PRAYER FOR RELIEF
9 WHEREFORE, Invasix prays for judgment against Defendants, and each of them, as
10 follows:
11 ON THE FIRST AND SECOND CAUSES OF ACTION:
MURPHY AUSTIN ADAMS SCHOENFELD LLP
12 1. For appropriate permanent injunctive relief, as determined by the Court, and
13 including:
14 a. a permanent order for injunctive relief that compels Defendant Elijah Wheeler
15 to disclose every document or thing belonging to Invasix, Inc. that Defendant
16 Elijah Wheeler retained following his voluntary resignation from Invasix, Inc.,
17 including, but not limited to, every document that Elijah Wheeler shared with
18 Viora, Inc., and, for each document, a complete accounting of every individual
19 or entity with whom Defendant Elijah Wheeler shared such document.
20 b. a permanent order enjoining Defendant Elijah Wheeler from disclosing or using
21 Plaintiff Invasix, Inc.’s trade secrets or Confidential and Proprietary
22 information and requiring Defendant Elijah Wheeler to return to Plaintiff
23 Invasix, Inc. all documents belonging to Invasix, Inc. that memorialize any part
24 of Plaintiff Invasix, Inc.’s trade secrets or Confidential and Proprietary
25 information.
26 2. For attorneys’ fees;
27 3. For costs of suit; and
28 4. For such other and further relief as the Court deems just and proper.
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1 ON THE THIRD CAUSE OF ACTION:
2 1. For a decree of specific performance that compels Defendant Elijah Wheeler to
3 comply with the terms and conditions of the Employment Agreement.
4 2. For compensation incidental to the decree of specific performance as set forth above,
5 according to proof;
6 3. For attorneys’ fees;
7 4. For costs of suit; and
8 5. For such other and further relief as the Court deems just and proper.
9 Respectfully submitted,
10 Dated: May 4, 2020 MURPHY AUSTIN ADAMS SCHOENFELD LLP
11
MURPHY AUSTIN ADAMS SCHOENFELD LLP
12 By:
DENNIS R. MURPHY
13 SHAWN M. JOOST
Attorneys for Plaintiff
14 INVASIX, INC.
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EXHIBIT A
EMPLOYMENT AGREEMENT
BETWEEN:
INVASIX INC., a Delaware corporation (the "Company")
And
Elijah Wheeler (the "Employee")
Effective Date of Agreement: November 1, 2018
IN CONSIDERATION OF the employment of the Employee by the Company and the
mutual covenants and promises contained in this Employment Agreement (the
"Agreement"), the Company and the Employee agree as follows:
I. Employment. The Company employs the Employee in the capacity set out in
Schedule "B", and the Employee accepts such employment under and subject to
the terms and conditions of this Agreement. In this Agreement, the term "Group"
shall include the Company, its parent and any of its subsidiaries and affiliated
entities, whether or not now in existence, including without limitation, lnvasix, Inc.
and lnvasix, Ltd. Certain provisions of this Agreement will apply to the relations
between the Employee and the Group. Nothing in this Agreement will create the
relationship of employer and employee between the Employee and any member
of the Group except the Company.
2. Duties. The Employee shall initially be based in the location set out in Schedule
"A". The Employee shall perform the duties set out in Schedule "B" and such
additional duties consistent with his/her position as may from time to time be
assigned by the Company. The Employee shall report to the person set out in
Schedule "B".
During the Employee's employment with the Company, except for illness,
permitted vacation periods and permitted leaves of absence, the Employee will
devote his/her full business time and best efforts to the faithful performance of
such duties and to the promotion and advancement of the business and affairs
of the Company.
The Employee is not authorized to obligate and/or bind the Company except in
the ordinary course of business to the extent customary for an Employee in
his/her position and subject to the policies and directives of the Company.
All reasonable policies, procedures and directives of the Company and/or the
Group applicable to subjects of work behavior, discipline, privacy, confidentiality,
will be considered integral parts of this Agreement. The Employee will on request
from time to time sign acknowledgements and agreements to be bound by certain
policies applicable to the Group, including without limitation insider trading and
reporting requirements, questionable practices, intellectual property and
information technology requirements.
3. COMPENSATION.
(a) Base Salarv. In consideration of the services to be rendered by the
Employee under this Agreement, the Company shall pay the Employee the
annual gross base salary (the "Base Salary") set out in Schedule "A". The
Employee acknowledges that his/her position may require extensive travel,
overtime work and work at irregular places and hours, and agrees that the
Base Salary includes the proper and agreed compensation for all these
factors.
(b) Payments: All salary shall be paid semi-monthly in arrears or at such other
frequency as the Employer may establish as its normal payroll practice.
Taxes, Insurance and any other obligatory payments will be deducted
according to applicable laws and regulations.
(c) Benefits. In addition to the Base Salary, the Employee shall, during the
Term, be entitled to the benefits set out in Schedule "A".
(d) Vacation. The Employee shall initially be entitled annually to the number of
days of paid vacation time set out in Schedule "A". Vacation entitlement
shall be calculated and vacations shall be taken in accordance with the
Company's vacation policy.
(e) Expenses. The Company shall reimburse the Employee for all reasonable
expenses actually incurred by the Employee in connection with the business
affairs of the Company and the performance of his/her duties. The
Employee shall comply with such reasonable policies, limitations and
reporting requirements with respect to such expenses as the Company may
establish from time to time.
(t) Bonus, Commissions and other type of payments. If applicable, the
Company will pay the employee any bonuses, commissions or other types
of remuneration specified in Schedule "A".
(g) Review. The Employee's performance and compensation will be reviewed
by the Company on the basis set out in Schedule "A".
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4. Term and Termination.
(a) Term. Subject to the termination provisions set out in this Section, the
Employee will be employed for a term commencing on the Effective Date
and continuing until it is terminated by either party (the "Term"). This
position includes a 90-day Introductory Period. The purpose of this
Introductory Period is to provide lnvasix with the opportunity to assess your
skills and suitability for this position. You must assist in generating a
minimum of three deals that close during this Introductory period.
(b) At Will employment. Employee further understands that this Agreement
is not for a set term and that no particular length of employment has been
expressed or implied, and that no circumstances arising out of employee's
employment will alter his/her "at will" employment relationship unless
expressed in writing signed by the Employee and the Company. All
employment with the Company is "at will" and can be terminated with or
without cause, and with or without notice, at any time, at the option of either
the Company or the Employee.
(c) Return of Company Property. On termination of Employee's employment,
by either party, the Employee shall return all Company property, including,
without limitation, demonstration units/systems, documents, reports,
memoranda, files, telephones, manuals, computer equipment, programs,
software and discs, whether or not generated during Employee's
engagement with the Company, and allother items which are the property
of the Company, including without limitation all Proprietary Information, as
defined below. The Employee shall not retain any copies, reproductions,
summaries,
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1 DENNIS R. MURPHY, SBN 51215 SHAWN M. JOOST, SBN 148391 2 MURPHY AUSTIN ADAMS SCHOENFELD LLP 555 Capitol Mall, Suite 850 3 Sacramento, CA 95814 Telephone: (916) 446-2300 4 Facsimile: (916) 503-4000 Email: dmurphy@murphyaustin.com 5 Email: sjoost@murphyaustin.com 6 ALAN D. ROSE, JR., MA SBN 628871 SAMMY S. NABULSI, MA SBN 691503 7 ROSE LAW PARTNERS LLP One Beacon Street, 23rd Floor 8 Boston, MA 02108 Telephone: (617) 536-0040 9 Facsimile: (617) 536-4400 Email: adrjr@rose-law.net 05/04/2020 10 Email: ssn@rose-law.net 11 (pro hac vice applications pending) MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 Attorneys for Plaintiff INVASIX, INC. 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF PLACER 16 S-CV-0044836 17 INVASIX, INC., a Delaware Corporation, Case No. 18 Plaintiff, COMPLAINT FOR: 1. MISAPPROPRIATION OF TRADE 19 v. SECRETS, Del. Code tit. 6, § 2002(a) 20 ELIJAH WHEELER, and DOES 1-10, 2. MISAPPROPRIATION OF TRADE inclusive, SECRETS, Cal. Civ. Code § 3426, 21 et seq. Defendants. 3. BREACH OF CONTRACT 22 23 24 Plaintiff Invasix, Inc. alleges: 25 FACTUAL ALLEGATIONS 26 1. Plaintiff Invasix, Inc. (“Invasix”) is a corporation formed under the laws of the 27 State of Delaware with its principal place of business at 20996 Bake Parkway, Suite 106, Lake 28 Forest, California 92630. -1- 6411.001-3098260.1 COMPLAINT 1 2. Defendant Elijah Wheeler is an individual residing at 722 Equinox Loop, Lincoln, 2 Placer County, California 95648. 3 3. The true names and capacities, whether individual, corporate, associate or 4 otherwise, of defendants Does 1 through 10 are unknown to Invasix, who therefore, sues such 5 defendants by such fictitious names and will amend this Complaint to show their true names and 6 capacities when ascertained. Invasix is informed and believes that each of these Doe defendants 7 is responsible in some manner for the events and happenings herein referred to and thereby 8 proximately caused the injuries and damages to Invasix as herein alleged. 9 4. Invasix is informed and believes and thereon alleges that at all times herein 10 mentioned, defendants and each of them, were the agents, servants, employees, and 11 representatives of each of the remaining defendants and were acting within the scope of their MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 authority as such agents, servants, employees, and representatives, and with the knowledge, 13 consent, permission, approval and ratification of the remaining defendants, and each of them. 14 Invasix will seek leave of this Court to amend this Complaint to show the true nature and extent 15 of the relationships of the defendants when said relationships have been fully ascertained. 16 5. Invasix is a manufacturer, distributor, and provider of medical devices used in 17 plastic surgery, gynecology, dermatology, and ophthalmology. 18 6. Defendant was hired by Invasix as a Senior District Sales Manager on 19 November 1, 2018. 20 7. In his role as Senior District Sales Manager, Defendant was responsible for 21 identifying and generating sales leads; cold calling and developing relationships with 22 dermatologists, plastic surgeons, and other physicians; and selling Invasix’s medical devices. 23 8. As Senior District Sales Manager, Defendant was also responsible for providing 24 sales support at workshops, tradeshows, sales meetings, and seminars. 25 9. Defendant was based in and expected to perform his job responsibilities in six 26 territories: Northern California, Oregon, Washington, Alaska, Hawaii, and Idaho. 27 10. In order to perform the responsibilities of Senior District Sales Manager, 28 Defendant had to maintain an understanding of the applications, specifications, cost, and -2- 6411.001-3098260.1 COMPLAINT 1 performance of Invasix’s medical devices. 2 11. In order to assist Defendant with the responsibilities of Senior District Sales 3 Manager, Invasix provided Defendant access to various documents containing confidential 4 marketing and sales support strategies, specification and operations information for Invasix’s 5 medical devices, and data from independent market research performed by Invasix (“Confidential 6 Information”). 7 12. At the time of hiring, Defendant entered into and executed an Employment 8 Agreement with Invasix. A true and accurate copy of the Employment Agreement is attached 9 hereto as Exhibit A and incorporated herein by reference. 10 13. Paragraph 4(c) of the Employment Agreement provides, “[o]n termination of 11 Employee’s employment, by either party, the Employee shall return all Company property, MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 including, without limitation, demonstration units/systems, documents, reports, memoranda, files, 13 telephones, manuals, computer equipment, programs, software and discs, whether or not 14 generated during Employee’s engagement with the Company, and all other items which are the 15 property of the Company, including without limitation all Proprietary Information.” 16 14. The Employment Agreement defines “Proprietary Information” as “confidential 17 specifications, know-how, strategic or technical data, marketing research data, product research 18 and development data, manufacturing techniques, confidential customer lists, sources of supply 19 and trade secrets, in any form, including, without limitation, oral, written or electronic form.” 20 15. Invasix developed the Confidential and Proprietary Information over a significant 21 period of time and at substantial expense and effort. 22 16. The Confidential and Proprietary Information derives actual and potential 23 independent economic value from not being generally known to the public or to other persons 24 who can obtain economic value from its disclosure or use. 25 17. Invasix took reasonable steps to protect the secrecy and confidentiality of this 26 Confidential and Proprietary Information, including restricting access to the Confidential and 27 Proprietary Information to those employees of Invasix who must use the Confidential and 28 Proprietary Information in performing their agreements and employment duties with Invasix and -3- 6411.001-3098260.1 COMPLAINT 1 requiring that employees, including the Defendant, execute the Employment Agreement. 2 18. Paragraph 4(c) of the Employment Agreement further provides, “[t]he Employee 3 shall not retain any copies, reproductions, summaries, and/or excerpts of any such Company 4 property or documentation.” 5 19. Finally, Paragraph 4(c) of the Employment Agreement provides, “[f]ollowing 6 termination of employment and before the Company’s final payment of compensation, if any, due 7 to the Employee, the Employee will sign and deliver to the Company an acknowledgement 8 confirming that all such items have been returned to the Company and that all of the Company’s 9 electronic information has been removed from any computer equipment in the possession of the 10 Employee and that no copies have been retained by the Employee.” 11 20. Paragraphs 5(c)(i) and 5(c)(ii) of the Employment Agreement prohibit Defendant MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 from disclosing “any Proprietary Information to any person other than (A) [Invasix] or authorized 13 employees thereof at the time of such disclosure, (B) such other persons to whom the Employee 14 has been specifically instructed to make disclosure by the Board, or (C) agents or representatives, 15 including but not limited to attorneys and accountants, of [Invasix] and in all such cases only to 16 the extent required in the course of the Employee’s services to [Invasix]” and use “any 17 Proprietary Information, for his/her own benefit or for the benefit of any other person or entity.” 18 21. Paragraph 7 of the Employment Agreement provides that, “[t]he Employee 19 acknowledges that any breach of the confidentiality and restrictive covenant provisions contained 20 in this Agreement is likely to result in irreparable injury to [Invasix], which cannot be made 21 whole by monetary damages or a remedy at law alone. Accordingly, [Invasix], or any member or 22 members thereof, in addition to any other remedy to which it may be entitled by law or in equity, 23 shall be entitled to seek both a temporary and permanent injunction (to the extent permitted by 24 law or equity) restraining the Employee from committing or continuing any such violation of this 25 Agreement or to prevent breaches of this Agreement, and to an order compelling specific 26 performance of this Agreement without necessity of proving actual damages.” 27 22. Paragraph 7 of the Employment Agreement also provides that “[t]he Employee 28 will reimburse [Invasix] for all costs and expenses, including without limitation, reasonable -4- 6411.001-3098260.1 COMPLAINT 1 attorneys’ fees or legal costs on a full indemnity basis, incurred by [Invasix], or any member(s) 2 thereof, in enforcing this Agreement.” 3 23. As a result of his employment by Invasix, and while in a position of responsibility, 4 trust and confidence, Defendant learned about Invasix’s operations and products, and was granted 5 access to and gained information about the Confidential and Proprietary Information that is the 6 property of Invasix including, without limitation, Invasix’s entire marketing and production plans, 7 details as to the types of medical devices sold by Invasix and the operation and specification of 8 such devices, and independent market research performed by Invasix concerning Invasix’s 9 medical devices and their uses. 10 24. On May 3, 2019, Defendant resigned from his position of Senior District Sales 11 Manager at Invasix. MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 25. Upon information and belief, Defendant became employed by Viora, Inc. 13 (“Viora”) in May 2019. 14 26. Viora is a direct competitor of Invasix in the manufacture, distribution, and sale of 15 medical devices used in plastic surgery, gynecology, dermatology, and ophthalmology. 16 27. Upon learning of Defendant’s subsequent employment by Viora, Invasix sent a 17 letter to Defendant, dated May 22, 2019, reminding Defendant of his surviving contractual 18 obligations under the Employment Agreement, including the obligations not to use or disclose 19 Invasix’s Confidential or Proprietary Information to third parties and to return all documents, 20 reports, memoranda, and files in Defendant’s possession to Invasix. A copy of the May 22, 2019 21 letter was sent to Viora. A true and correct copy of Invasix’s May 22, 2019 letter is attached 22 hereto as Exhibit B and incorporated herein by reference. 23 28. Upon his resignation, Defendant did not return to Invasix its Confidential or 24 Proprietary Information, including any documents, reports, memoranda, files, or manuals 25 pursuant to the Employment Agreement notwithstanding such requirement in the Employment 26 Agreement. 27 29. Upon his resignation, Defendant did not sign and deliver to Invasix an 28 acknowledgement confirming that all Confidential and Proprietary Information, including such -5- 6411.001-3098260.1 COMPLAINT 1 documents, reports, memoranda, files, or manuals have been returned to Invasix and that all of 2 Invasix’s electronic information has been removed from any computer equipment in the 3 possession of the Defendant and that no copies have been retained by the Defendant 4 notwithstanding such requirement in the Employment Agreement. 5 30. On May 14, 2019, while employed at Viora, Defendant sent an e-mail to Viora’s 6 Chief Executive Officer, Andrea Trofimuk, and Viora’s Vice President of Sales, Bill Scott, 7 containing several documents belonging to Invasix and describing Invasix’s trade secrets and 8 Confidential and Proprietary Information. 9 31. The documents conveyed by the Defendant to Invasix’s competitor, Viora, 10 contained sales pitch decks used by Invasix sales representatives to market and sell Invasix 11 medical devices, internal marketing instructions and sales support materials describing Invasix’s MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 marketing and sales support strategies, specification and operations information for Invasix’s 13 medical devices, and data and outcomes arising from independent market research performed by 14 Invasix. 15 32. Invasix learned of Defendant’s disclosure of Invasix’s trade secrets and 16 Confidential and Proprietary Information to Viora when on November 25, 2019, Viora’s Bill 17 Scott sent a LinkedIn® message and subsequent text message to Invasix’s Daniel Wilson to 18 notify Wilson that Defendant shared Invasix’s trade secrets and Confidential and Proprietary 19 Information with Scott and Viora’s CEO on May 14, 2019. 20 33. After learning of Defendant’s wrongful disclosure and breach of the Employment 21 Agreement, Invasix sent a letter to Defendant on December 31, 2019, demanding that Defendant 22 locate, provide a full accounting of, and return all of Invasix’s documents; and that Defendant 23 destroy Invasix’s documents in his possession. A true and correct copy of Invasix’s 24 December 31, 2019 letter is attached hereto as Exhibit C and incorporated herein by reference. 25 34. The December 31 letter also demanded that Defendant sign a declaration and 26 affirm that he has not misappropriated or used Invasix’s trade secrets and Confidential and 27 Proprietary Information in the development of Viora’s or Defendant’s current employer’s 28 advertising and marketing materials; that Defendant did not disclose the trade secrets and -6- 6411.001-3098260.1 COMPLAINT 1 Confidential and Proprietary Information to any employees, directors, or officers of his current 2 employer or any third party; and that Defendant will not misappropriate, use, or disclose Invasix’s 3 trade secrets and Confidential and Proprietary Information in the future. 4 35. On January 3, 2020, Invasix sent a letter to Viora similarly demanding that Viora 5 locate, provide a full accounting of, and return all of Invasix’s documents shared with Viora by 6 Defendant and that Viora destroy Invasix’s documents in its possession. The January 3, 2020 7 letter further demanded that Viora similarly sign a declaration and affirm that Viora has not 8 misappropriated or used Invasix’s trade secrets and Confidential and Proprietary Information to 9 support Viora’s business or Viora’s marketing and advertising materials and strategies; that Viora 10 has not shared Invasix’s trade secrets and Confidential and Proprietary Information with Invasix’s 11 employees, directors, or officers or any third parties; and that Viora will not misappropriate, MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 possess, use, or disclose Invasix’s trade secrets and Confidential and Proprietary Information in 13 the future. By letter dated January 10, 2020, Viora, through counsel, supplied Invasix with an 14 accounting of Invasix’s Confidential and Proprietary documents shared with Viora by Defendant. 15 Viora further represented that it would agree to return or destroy all of the disclosed documents 16 and information misappropriated and disclosed by Defendant. 17 36. Defendant, however, has refused to sign the declaration. 18 CAUSES OF ACTION 19 FIRST CAUSE OF ACTION (Misappropriation of Trade Secrets |Under Delaware 20 Uniform Trade Secrets Act, Del. Code tit. 6, § 2002(a)) 21 37. Invasix hereby repeats and realleges the factual allegations contained in 22 Paragraphs 1 through 36 and incorporates them herein. 23 38. Paragraph 12(e) of the Employment Agreement provides that “[t]his Agreement, 24 and the rights and remedies provided hereunder, and all claims, disputes and controversies arising 25 hereunder or related thereto, shall be governed by and construed under and enforced in 26 accordance with the laws of the State of Delaware, without reference to choice of law or conflicts 27 of law principles.” 28 39. Upon information and belief, Defendant, while employed by Viora, used Invasix’s -7- 6411.001-3098260.1 COMPLAINT 1 trade secrets and Confidential and Proprietary Information and made it possible for Viora to use 2 Invasix’s trade secrets and Confidential and Proprietary Information to compete with Invasix. 3 40. The wrongful disclosure by Defendant of Invasix’s trade secrets and Confidential 4 and Proprietary Information entrusted to Defendant has given Defendant and Defendant’s current 5 and past employers a substantial competitive advantage to which they are not entitled. 6 41. Defendant knew or had reason to know that the Confidential and Proprietary 7 Information gained by Defendant as a result of his employment by Invasix contained trade secrets 8 and Confidential and Proprietary Information of Invasix in that the information had independent 9 economic value and was not generally known to the public or others and that Defendant and 10 Defendant’s employer could have obtained economic value from Defendant’s disclosure or use of 11 the information. MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 42. Defendant misappropriated Invasix’s trade secrets by the wrongful disclosure of 13 such information to Viora, without the consent of Invasix, while knowing that Defendant acquired 14 the trade secrets and Confidential and Proprietary Information under circumstances giving rise to 15 a duty to maintain their secrecy. 16 43. Invasix has suffered irreparable harm as a result of Defendants’ activities and will 17 continue to suffer irreparable harm that cannot adequately be remedied at law unless Defendants 18 are enjoined from engaging in any further such acts of misappropriation. 19 44. In the absence of an injunction, Defendant will continue to violate Invasix’s rights 20 in the ways discussed above because Invasix is informed and believes, and thereon alleges, that 21 Defendant is currently employed by another competitor of Invasix. 22 WHEREFORE, Invasix prays for judgment as set forth below. 23 SECOND CAUSE OF ACTION (Misappropriation of Trade Secrets under California 24 Uniform Trade Secrets Act, Civ. Code Section 3426, et seq.) 25 45. Invasix hereby repeats and realleges the factual allegations contained in 26 Paragraphs 1 through 44 and incorporates them herein. 27 46. Over a substantial period of years, and at significant effort and expense, Invasix 28 developed the Confidential and Proprietary Information. The Confidential and Proprietary -8- 6411.001-3098260.1 COMPLAINT 1 Information constitute trade secrets because they derive significant economic value for Invasix 2 from not being generally known by the public or Invasix’s competitors, who would obtain 3 economic value from their disclosure. 4 47. Invasix has made reasonable efforts to preserve the confidentiality of the 5 Confidential and Propriety Information that constitute Invasix’s trade secrets by, among other 6 things, requiring employees, including Defendant, to sign confidentiality agreements and by 7 disclosing the Confidential and Proprietary Information only to employees with a need to know. 8 48. Upon information and belief, Defendant, while employed by Viora, used Invasix’s 9 trade secrets and Confidential and Proprietary Information and made it possible for Viora to use 10 Invasix’s trade secrets and Confidential and Proprietary Information to compete with Invasix. 11 49. The wrongful disclosure by Defendant of Invasix’s trade secrets and Confidential MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 and Proprietary Information entrusted to Defendant has given Defendant and Defendant’s current 13 and past employers a substantial competitive advantage to which they are not entitled. 14 50. The foregoing actions of Defendant constitute misappropriations of Invasix’s trade 15 secrets. Invasix is informed and believes that investigation and discovery will reveal further 16 improper uses by Defendant of Invasix’s trade secrets. 17 51. The actions of all Defendants constitute misappropriation of trade secrets under 18 California Civil Code Section 3426, et seq. 19 52. Invasix has suffered irreparable harm as a result of Defendants’ activities and will 20 continue to suffer irreparable harm that cannot adequately be remedied at law unless Defendants 21 are enjoined from engaging in any further such acts of misappropriation. 22 53. In the absence of an injunction, Defendant will continue to violate Invasix’s rights 23 in the ways discussed above because Invasix is informed and believes, and thereon alleges, that 24 Defendant is currently employed by another competitor of Invasix. 25 WHEREFORE, Invasix prays for judgment as set forth below. 26 /// 27 /// 28 /// -9- 6411.001-3098260.1 COMPLAINT 1 THIRD CAUSE OF ACTION (Breach of Contract) 2 3 54. Invasix hereby repeats and realleges the factual allegations contained in 4 Paragraphs 1 through 53 and incorporates them herein. 5 55. At the time Invasix and Defendant entered into the Employment Agreement, the 6 consideration that Invasix was to pay under the Employment Agreement was adequate. 7 56. The Employment Agreement is just and reasonable as to Defendant. 8 57. Invasix has at all times performed the terms of the Employment Agreement in the 9 manner specified by the Employment Agreement. 10 58. Invasix has demanded that Defendant comply with the terms of the Employment 11 Agreement. MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 59. Defendant has failed and refused, and continues to refuse, to comply with the 13 terms of the Employment Agreement as required in that Defendant retained and did not return or 14 destroy the documents, reports, memoranda, files, and manuals belonging to Invasix, including 15 Invasix’s trade secrets and Confidential and Proprietary information, upon Defendant’s 16 resignation from Invasix. 17 60. Defendant has failed and refused, and continues to refuse, to comply with the 18 terms of the Employment Agreement as required in that Defendant did not sign and deliver to 19 Invasix an acknowledgement confirming that all such items have been returned to Invasix and all 20 of Invasix’s electronic information has been removed from any computer equipment in the 21 possession of Defendant and that no copies have been retained by Defendant. 22 61. Defendant further breached the Employment Agreement by disclosing Invasix’s 23 trade secrets and Confidential and Proprietary information when Defendant e-mailed to Viora’s 24 CEO and Vice President of Sales Invasix’s documents containing trade secrets and Confidential 25 and Proprietary Information. 26 62. In the absence of an order for specific performance, Defendant will continue to 27 violate Invasix’s rights by breaching the Employment Agreement in the ways discussed above 28 because Invasix is informed and believes, and thereon alleges that, Defendant is currently - 10 - 6411.001-3098260.1 COMPLAINT 1 employed by another competitor of Invasix. 2 63. Invasix has no adequate remedy at law and is entitled to specific performance of 3 the terms and conditions of the Employment Agreement. 4 64. Invasix is entitled to compensation incidental to a decree of specific performance 5 by virtue of the delay of Defendant in complying with the terms and conditions of the 6 Employment Agreement, according to proof. 7 WHEREFORE, Invasix prays for judgment as set forth below. 8 PRAYER FOR RELIEF 9 WHEREFORE, Invasix prays for judgment against Defendants, and each of them, as 10 follows: 11 ON THE FIRST AND SECOND CAUSES OF ACTION: MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 1. For appropriate permanent injunctive relief, as determined by the Court, and 13 including: 14 a. a permanent order for injunctive relief that compels Defendant Elijah Wheeler 15 to disclose every document or thing belonging to Invasix, Inc. that Defendant 16 Elijah Wheeler retained following his voluntary resignation from Invasix, Inc., 17 including, but not limited to, every document that Elijah Wheeler shared with 18 Viora, Inc., and, for each document, a complete accounting of every individual 19 or entity with whom Defendant Elijah Wheeler shared such document. 20 b. a permanent order enjoining Defendant Elijah Wheeler from disclosing or using 21 Plaintiff Invasix, Inc.’s trade secrets or Confidential and Proprietary 22 information and requiring Defendant Elijah Wheeler to return to Plaintiff 23 Invasix, Inc. all documents belonging to Invasix, Inc. that memorialize any part 24 of Plaintiff Invasix, Inc.’s trade secrets or Confidential and Proprietary 25 information. 26 2. For attorneys’ fees; 27 3. For costs of suit; and 28 4. For such other and further relief as the Court deems just and proper. - 11 - 6411.001-3098260.1 COMPLAINT 1 ON THE THIRD CAUSE OF ACTION: 2 1. For a decree of specific performance that compels Defendant Elijah Wheeler to 3 comply with the terms and conditions of the Employment Agreement. 4 2. For compensation incidental to the decree of specific performance as set forth above, 5 according to proof; 6 3. For attorneys’ fees; 7 4. For costs of suit; and 8 5. For such other and further relief as the Court deems just and proper. 9 Respectfully submitted, 10 Dated: May 4, 2020 MURPHY AUSTIN ADAMS SCHOENFELD LLP 11 MURPHY AUSTIN ADAMS SCHOENFELD LLP 12 By: DENNIS R. MURPHY 13 SHAWN M. JOOST Attorneys for Plaintiff 14 INVASIX, INC. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - 6411.001-3098260.1 COMPLAINT EXHIBIT A EMPLOYMENT AGREEMENT BETWEEN: INVASIX INC., a Delaware corporation (the "Company") And Elijah Wheeler (the "Employee") Effective Date of Agreement: November 1, 2018 IN CONSIDERATION OF the employment of the Employee by the Company and the mutual covenants and promises contained in this Employment Agreement (the "Agreement"), the Company and the Employee agree as follows: I. Employment. The Company employs the Employee in the capacity set out in Schedule "B", and the Employee accepts such employment under and subject to the terms and conditions of this Agreement. In this Agreement, the term "Group" shall include the Company, its parent and any of its subsidiaries and affiliated entities, whether or not now in existence, including without limitation, lnvasix, Inc. and lnvasix, Ltd. Certain provisions of this Agreement will apply to the relations between the Employee and the Group. Nothing in this Agreement will create the relationship of employer and employee between the Employee and any member of the Group except the Company. 2. Duties. The Employee shall initially be based in the location set out in Schedule "A". The Employee shall perform the duties set out in Schedule "B" and such additional duties consistent with his/her position as may from time to time be assigned by the Company. The Employee shall report to the person set out in Schedule "B". During the Employee's employment with the Company, except for illness, permitted vacation periods and permitted leaves of absence, the Employee will devote his/her full business time and best efforts to the faithful performance of such duties and to the promotion and advancement of the business and affairs of the Company. The Employee is not authorized to obligate and/or bind the Company except in the ordinary course of business to the extent customary for an Employee in his/her position and subject to the policies and directives of the Company. All reasonable policies, procedures and directives of the Company and/or the Group applicable to subjects of work behavior, discipline, privacy, confidentiality, will be considered integral parts of this Agreement. The Employee will on request from time to time sign acknowledgements and agreements to be bound by certain policies applicable to the Group, including without limitation insider trading and reporting requirements, questionable practices, intellectual property and information technology requirements. 3. COMPENSATION. (a) Base Salarv. In consideration of the services to be rendered by the Employee under this Agreement, the Company shall pay the Employee the annual gross base salary (the "Base Salary") set out in Schedule "A". The Employee acknowledges that his/her position may require extensive travel, overtime work and work at irregular places and hours, and agrees that the Base Salary includes the proper and agreed compensation for all these factors. (b) Payments: All salary shall be paid semi-monthly in arrears or at such other frequency as the Employer may establish as its normal payroll practice. Taxes, Insurance and any other obligatory payments will be deducted according to applicable laws and regulations. (c) Benefits. In addition to the Base Salary, the Employee shall, during the Term, be entitled to the benefits set out in Schedule "A". (d) Vacation. The Employee shall initially be entitled annually to the number of days of paid vacation time set out in Schedule "A". Vacation entitlement shall be calculated and vacations shall be taken in accordance with the Company's vacation policy. (e) Expenses. The Company shall reimburse the Employee for all reasonable expenses actually incurred by the Employee in connection with the business affairs of the Company and the performance of his/her duties. The Employee shall comply with such reasonable policies, limitations and reporting requirements with respect to such expenses as the Company may establish from time to time. (t) Bonus, Commissions and other type of payments. If applicable, the Company will pay the employee any bonuses, commissions or other types of remuneration specified in Schedule "A". (g) Review. The Employee's performance and compensation will be reviewed by the Company on the basis set out in Schedule "A". 2 DM-STM DM\BL 4. Term and Termination. (a) Term. Subject to the termination provisions set out in this Section, the Employee will be employed for a term commencing on the Effective Date and continuing until it is terminated by either party (the "Term"). This position includes a 90-day Introductory Period. The purpose of this Introductory Period is to provide lnvasix with the opportunity to assess your skills and suitability for this position. You must assist in generating a minimum of three deals that close during this Introductory period. (b) At Will employment. Employee further understands that this Agreement is not for a set term and that no particular length of employment has been expressed or implied, and that no circumstances arising out of employee's employment will alter his/her "at will" employment relationship unless expressed in writing signed by the Employee and the Company. All employment with the Company is "at will" and can be terminated with or without cause, and with or without notice, at any time, at the option of either the Company or the Employee. (c) Return of Company Property. On termination of Employee's employment, by either party, the Employee shall return all Company property, including, without limitation, demonstration units/systems, documents, reports, memoranda, files, telephones, manuals, computer equipment, programs, software and discs, whether or not generated during Employee's engagement with the Company, and allother items which are the property of the Company, including without limitation all Proprietary Information, as defined below. The Employee shall not retain any copies, reproductions, summaries,