second amended complaint

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Scott D. Baker (SBN 84923) [email protected] William R. Overend (SBN 180209) [email protected] Luisa M. Bonachea (SBN 267664) [email protected] REED SMITH LLP 101 Second Street, Suite 1800 San Francisco, CA 94105-3659 Telephone: +14155438700 Facsimile: + 1 415391 8269

Attorneys for Plaintiff TIBCO Software Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

UNLIMITED CIVIL CASE

TIBCO SOFTWARE INC., a Delaware Corporation,

Plaintiff,

v.

ENSUANT, INC., a California Corporation, PUNEET ARORA, an Individual, NELSON PETRACEK, an Individual, BASANTH GOWDA, an Individual, and DOES 1 through 100, inclusive,

Defendants.

Case No.: 1-1O-CV-174346

SECOND AMENDED COMPLAINT FOR

1. TRADE SECRETS MISAPPROPRIATION; 2. BREACH OF CONTRACT (TWO COUNTS); 3. TORTIOUS INTERFERENCE WITH CONTRACT (TWO COUNTS); AND 4. UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17200.

Hon. Peter H. Kirwan, Dep't 8

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SECOND AMENDED COMPLAINT

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Plaintiff TIBCO Software Inc. ("TIBCO"), by its undersigned counsel, brings this

action against Defendants Ensuant, Inc. ("Ensuant"), Puneet Arora ("Arora"), Nelson Petracek

("Petracek"), Basanth Gowda ("Gowda"), and Does 1 through 100, inclusive ("Doe Defendants")

(hereinafter collectively, "Defendants"), and, in support thereof, alleges as follows:

INTRODUCTION

1. What began just a few years ago as an idea within TIBCO's emerging technology

division has since become one of its most innovative and fastest-growing technologies. This

software-based technology, embodied in TIBCO's Business Events product and services line,

enables TIBCO customers to detect patterns in consumer behavior and use them to create real-time

rules which, in tum, allow businesses to optimize resources and maximize revenue. Business Events

is now used by leaders in the retail, banking, airline, and telecommunications industries, allowing

retail stores to individualize offers to clients, airlines to optimize resources when luggage is lost,

energy companies to monitor smart meters and the emerging "smart" grid, and telephone companies

to provision mobile phones as they are purchased. Business Events is the result of over six years of

research and development, the efforts of a highly-skilled division within TIBCO, and the investment

of millions of dollars.

2. Rather than focusing exclusively on the investment and growth of this successful

product, however, TIBCO suddenly finds itself fighting to retain Business Events clients as well as

its own Business Events engineers, consultants, and field employees due to the illegal and unfair

activities of a former TIBCO employee and his newly formed company. As a result of these

activities, TIBCO brings this action against Arora, TIBCO's former Chief Technology Officer for

North America and former leader of the team that developed Business Events, and Ensuant, Arora's

newly formed company, along with two other former TIBCO employees who are now at Ensuant

and who, on information and belief, are actively conspiring with Arora to compete unfairly with

TIBCO by stealing its customers and employees through illegal use of TIBCO's trade secrets and

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other confidential information, and through unfair competition with TIBCO and its business.

3. In less than one year since his resignation from TIBCO, Arora (a) has founded a

company, Ensuant, which purports to market a product and services that compete directly with

TIBCO's Business Events business, including the market for services and support of TIBCO

software; (b) has misappropriated TIBCO's trade secrets and other proprietary and confidential

information; (c) has wrongfully solicited and hired TIBCO employees from the team he once led;

and (d) has misappropriated relationships with TIBCO clients. In the process, Arora has effectively

and wrongfully replicated at Ensuant a team which includes many of the same employees he worked

with at TIBCO, selling products and services modeled largely after those developed at and owned by

TIBCO to many of the very same TIBCO clients he worked with while employed at TIBCO.

4. Defendants' actions, resulting in the loss of key TIBCO personnel, threaten to cripple

TIBCO's efforts to continue its development and the continued success of Business Events and

related products and services, and to keep up with increasing client demand. As of the initial filing

of this action, at least two former Business Events team members had become Ensuant employees.

Nelson Petracek, former Senior Director, Product Consulting and the second-in-command on the

Business Events team, resigned from TIBCO in December 2009 and is now Co-Founder and Vice

President of Field at Ensuant. Another former Business Events team member, Basanth Gowda,

resigned from TIBCO in May 2010 to work at Ensuant. The departure of both employees came

about after repeated solicitation by Arora. Since the filing of this action, TIBCO is informed and

believes and thereon alleges that Defendants have continued their wrongful conduct, continuing to

solicit TIBCO employees and to compete unfairly with TIBCO by using its trade secrets and

confidential information.

5. In the short time since Arora founded Ensuant, he has also capitalized on the

relationships cultivated at TIBCO by stealing away Business Events clients. These clients include

leaders in the banking, retail, and airline industries. On information and belief, Defendants are,



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among other things, offering to design and implement custom configurations of TIBCO software for

these clients using trade secrets and other confidential information wrongfully obtained from

TIBCO. Arora's actions are projected to cost TIBCO millions of dollars in licensing and consulting

revenues in 2010 and beyond.

6. In light of Arora and Ensuant's attempts to capitalize on TIBCO's multimillion dollar

Business Events product, and the resulting customers and related markets, by soliciting TIBCO

employees, stealing TIBCO clients, and improperly using and/or disclosing TIBCO's trade secrets

and other confidential information, TIBCO brings this Complaint and requests the relief set forth

below.

PARTIES

7. Plaintiff TIBCO Software Inc. is Delaware Corporation with its principal place of

business located at 3303 Hillview Avenue Palo Alto, CA 94304.

8. Upon information and belief, Defendant Ensuant, Inc. is a California Corporation with

its principal place of business located at 440 North Wolfe Road # 37, Sunnyvale, CA 94085-3869.

9. Upon information and belief, Defendant Puneet Arora is an individual who resides in

Santa Clara County, California.

10. Upon information and belief, Defendant Nelson Petracek is an individual who resides

in Calgary, Alberta, Canada. This Court has personal jurisdiction over Petracek. Petracek has

conducted business, and engaged in various acts, including pertaining to the subject matter of this

lawsuit, in and directed to California, including in this Judicial District.



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11. Upon information and belief, Defendant Basanth Gowda is an individual who resides

in Lake Bluff, Illinois. This Court has personal jurisdiction over Gowda. Gowda has conducted

business, and engaged in various acts, including pertaining to the subject matter of this lawsuit, in

and directed to California, including in this Judicial District.

12. Defendants Does 1 through 100, inclusive, are sued herein under fictitious names.

Their true names and capacities are unknown to TIBCO. When their true names and capacities are

ascertained, TIBCO will amend this Complaint by inserting their true names and capacities herein.

TIBCO is informed and believes and thereon alleges that each of the Doe Defendants is responsible

in some manner for the occurrences herein alleged, and that TIBCO's damages as herein alleged

were proximately caused by the Doe Defendants.

13. TIBCO is informed and believes that at all times herein mentioned, each of the

Defendants was the agent and/or employee of each of the remaining Defendants, and in doing the

things hereinafter alleged, was acting within the course and scope of such agency and/or

employment. TIBCO is further informed and believes and thereon alleges that each of the

Defendants acted in concert with the others and gave consent to, ratified or authorized the acts of

other Defendants and their employees.

JURISDICTION AND VENUE

14. This Court has jurisdiction over the subject matter of this action because it concerns

employment and non-disclosure contracts entered into and/or performed in Santa Clara County and

because the amount in dispute exceeds the jurisdictional minimum of this Court.

15. Venue is proper in this judicial district because all parties reside here and the acts and

events giving rise to the claims asserted herein, at least in part, arose here.

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FACTS COMMON TO ALL CAUSES OF ACTION

A. TIBCO and TIBCO's Business Events Software.

16. Headquartered in Palo Alto, California, TIBCO provides enterprise software that helps

companies achieve service-oriented architecture and business process management success. With

over two thousand employees, over four thousand customers, and offices in forty countries, TIBCO

has given leading organizations around the world better awareness and agility. TIBCO focuses on

leveraging and extending the capabilities of its software to help companies move toward predictive

business. Predictive business allows companies to anticipate customer needs, create opportunities,

and avoid potential problems. As the basis of the real-time movement of data across the enterprise,

TIBCO's software is uniquely capable of correlating information about a company's operations and

performance with information about expected behavior and business rules so they can anticipate and

respond to threats and opportunities before they occur.

17. Business Events is one ofTIBCO's most successful and important predictive business

products. The technology utilized in Business Events enables customers to detect patterns in real

time and act upon them as they happen. The principal components are pattern detection and rule

creation, which, together, solve a variety of business problems for clients. This approach, as applied

to markets, had never been widely used before Business Events was developed. The technology

gives clients a competitive advantage in these markets, allowing companies across a spectrum of

industries to optimize resources and maximize revenue.

18. Business Events, now used by leaders in the retail, banking, and airline industries,

allows businesses to make intelligent, customized offers to consumers based on current behavior

(e.g., purchase of shirts in a department store) and past behavior (e.g., prior purchase of shoes in a

department store) in real-time. Business Events' business applications vary from optimizing the use

of resources for lost luggage to measuring meters in the energy industry.



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19. Implementing Business Events often requires TIBCO's engineers and professional

services consultants to go to a client's location to assist in designing the client's system and to assist

in implementing Business Events with this system. It takes a number of years to become technically

proficient in the use of Business Events to the degree needed to provide these services to clients.

TIBCO and other services companies have spent (at great expense) years developing and training

qualified engineers and consultants to provide these services.

B. TIBCO's Valuable Trade Secrets and Confidential Information.

20. As part of its business, TmCO has developed, and uses, various proprietary and

confidential trade practices, trade materials, and other trade secrets. These trade secrets are the result

of years of time, money and labor, including millions of dollars in development and training costs.

Notably, once a customer has purchased and installed Business Events software, it will often need

further assistance implementing and administering the software, customizing and/or upgrading it,

and/or integrating it with the customer's other systems. TIBCO provides these integration services

to its customers as separate consulting services independent from initial sales of Business Events.

TIBCO's trade secrets regarding information concerning the design, operation and implementation

of Business Events provide it with a competitive advantage in the market for providing these

integration services to customers. Likewise, TIBCO's trade secrets regarding the details of customer

installations and preferences provide a competitive advantage to TIBCO with regard to providing

follow-up integration services to those same customers.

21. TIBCO's various trade secrets include, but are not limited to, the following

(collectively referred to as "TIBCO Trade Secrets"): source code, know-how and other confidential

and proprietary information regarding TIBCO's Business Events and other software; confidential

information regarding the details of TIBCO customer implementations of Business Events and/or

other software; product development plans, confidential sales strategies, marketing plans and

business plans; confidential information regarding TIBCO's customers and potential customers;

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confidential financial information regarding TIBCO and its business; and confidential information

regarding TIBCO employees.

22. The TIBCO Trade Secrets are not generally known to the public or the software

industry, including the complex events processing software industry. This information was

developed by TIBCO over a substantial period of time, including through substantial software

development and design efforts, marketing analysis and testing, confidential business relationships

and communications with customers. If this information could have been learned at all, it would

have taken a substantial period of time to learn, at a substantial cost. The information provides

TIBCO with a competitive advantage.

23. TIBCO has taken, and continues to take, measures to prevent disclosure of this

information to the general public or the software industry. For example, TIBCO stores its electronic

records on a secured, password-protected network. TIBCO's source code is maintained in a secure

repository, and only limited access is provided to the code. TIBCO's business facilities are subject

to additional security measures as well.

24. In addition, TIBCO's employees, including each of the Defendants, contractually

agree that all trade secrets and other proprietary and confidential information which comes into the

employees' possession (including any information originated or developed by the employee while

employed by TIBCO) is secret and is the exclusive property ofTIBCO. TIBCO's employees further

agree that such trade secrets and other proprietary and confidential materials are only to be used by

the employee in connection with his or her work for TIBCO. Each employee further agrees that

while employed with TIBCO and thereafter, he or she shall hold such information in confidence and

not disclose or reveal such information in any manner to any other person or entity.

25. TIBCO's employees also contractually agree that, upon the request ofTIBCO or upon

leaving the employ of TIBCO, they will promptly return to TIBCO the original and all copies of any

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documents, reports, notes or other materials incorporating or reflecting, in any way, any trade secrets

or other proprietary or confidential materials in the possession or under the control of the employee.

26. Finally, TIBCO's employees agree that any use or disclosure ofTIBCO's trade secrets

or other proprietary or confidential information other than for TIBCO's benefit and without

TIBCO's prior written consent would cause irreparable injury to TIBCO, and that TIBCO would

thus be entitled to obtain an injunction to protect against the wrongful use or disclosure of such

information.

C. TIDeO Hires Arora, Establishes A Team Within The Quantum Leap Group To Pursue

A New Technology, And Appoints Arora To Oversee It.

27. On December 8, 1998, TIBCO hired Arora as a Senior Member of the Technical Staff .

On April 12, 1999, Arora and TIBCO entered into an Employment Agreement ("Arora Employment

Agreement") in which Arora agreed, inter alia, "that during the term of this Agreement and for a

period of (1) year thereafter, [he] shall not, directly or indirectly, either for himself or for any other

person ... , corporation or other legal entity, solicit any then employee of [TIBCO] to leave the

employment ofTIBCO." Among other things, Arora agreed in Section V of the Arora Employment

Agreement to be bound by the Non-Disclosure/Assignment Agreement attached as Exhibit A, and

that the provisions of Exhibit A "shall survive any termination of this Agreement." Attached hereto

as Exhibit A is a true and correct copy of the Arora Employment Agreement.

28. In April 2004, TIBCO decided to pursue the technology that would ultimately become

Business Events. TIBCO tapped Arora to lead the development of this technology. Although his

background was primarily technical, he had also shown promise as a manager, serving as

ArchitectlPrincipal Engineer, Principal Architect, Senior Architect, and Vice President Engineering.

(He would later serve as Vice President Strategic Technology Group, and North America Chief

Technology Officer.)



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29. Arora and four other employees began developing this technology in 2004 as part of

the Quantum Leap Group, an emerging technologies/leading edge division within TIBCO. The

Quantum Leap Group combines the functions of engineering, sales support, and marketing with a

specialized technical field consulting/enablement team. Arora and his team of five released version

1.0 of Business Events in November 2004. The group expanded from 5 to 12 from 2003 to 2004,

from 12 to 16 from 2004 to 2005, and from 16 to 18 from 2005 to 2006. The group released version

2.0 in November 2006.

30. As the Quantum Leap Group leader, Arora was responsible for developing and

marketing Business Events. In this capacity, he had knowledge of and access to all critical data and

information regarding product development and engineering (including source code), sales and

marketing (including potential clients and their Business Events installations), and the talents and

capabilities of TIBCO personnel.

D. Business Events Succeeds As A Mainstream Product.

31. From 2004 to 2007, Business Events remained a leading edge product due to its

relatively small customer base. The millions of dollars TIBCO had invested in Business Events

would, however, eventually payoff. With demand surging, by mid-2007 Business Events had

become firmly established as a mainstream product. Clients began finding new and innovative ways

to use the technology, providing TIBCO with a steady stream of Business Events-related projects

and revenues. The team also grew-from 18 to 30 from 2006 to 2007, from 30 to 76 from 2007 to

2008, and from 76 to 126 from 2008 to 2009. The team decreased in size from 126 to 122 from

2009 to 2010. Version 3.0 of Business Events was released in May 2008 and version 4.0 in May

2010.

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E. Arora Resigns, Establishes Ensuant, And Immediately Begins Soliciting TIBCO

Employees And Clients.

32. On July 29, 2009, after over ten years as a TIBCO employee, Arora tendered his

resignation. That same day, he received a letter from TIBCO Corporate Human Resources

reminding him of his obligations to TIBCO pursuant to the terms of his Employment Agreement.

These obligations included a restriction on not improperly using or disclosing TIBCO's proprietary

information, and not soliciting TIBCO employees for a period of one year after leaving TIBCO.

Attached hereto as Exhibit B is a true and correct copy ofthis letter.

33. On October 16,2009, fewer than three months after his departure from TIBCO, Arora

established Ensuant as a California corporation. The solicitation and hiring of TIBCO employees

began almost immediately .

34. Nelson Petracek was the first TIBCO employee to resign and join Ensuant in the wake

of Arora's departure. On December 6, 2001, TIBCO Software Canada, Inc. hired Petracek as a

Senior Systems Engineer. He joined the Quantum Leap Group's Business Events team in late 2005,

where he quickly rose to second-in-command after Arora. Petracek's expertise was principally in

field operations, where he managed all Business Events pre-sales and post-sales representatives. He

also demonstrated a strong understanding of the technical aspects of Business Events. During his

tenure as a member of the Quantum Leap Group, he developed a close relationship with Arora.

Petracek announced his resignation from TIBCO on December 19,2009. He joined Ensuant shortly

thereafter where he serves, according to the Ensuant website, as "Co-Founder" of Ensuant, a

corporation established fully two months prior to his resignation from TIBCO. Upon information'

and belief, Petracek is fulfilling many of the same job responsibilities at Ensuant as he was at

TIBCO.

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35. After months of solicitation by and contact with Arora, another key Business Events

team member, Basanth Gowda, left TIBeO in May 2010 in order to join Ensuant-a move Gowda

had been planning for months before his actual departure. Arora emailed Gowda on multiple

occasions between October 27, 2009 and April 27, 2010. On at least one occasion in April 2010,

Arora arranged to meet Gowda and two other TIBeO colleagues in Atlanta. Gowda finally

announced his resignation from TIBeO in an email to TIBeO colleagues on May 7, 2010. By that

time, Gowda's professional relationship with Arora and Petracek had become so close that he

included Arora's and Petracek's email addresses in the blind carbon copy field of that email.

Immediately thereafter, Gowda began working for Ensuant. TIBeO is informed and believes and

thereon alleges that, prior to his departure from TIBeO, Gowda improperly disclosed TIBeO trade

secrets and/or confidential information to Arora and/or others at Ensuant. Upon information and

belief, Gowda is fulfilling many of the same job responsibilities at Ensuant as he was at TIBeO.

36. Nick Leong was another Business Events team member to resign from TIBeO. He

and Arora communicated via email at least once on May 12, 2010. On June 3, 2010-less than a

month later-Leong announced his own resignation. TIBeO is informed and believes and thereon

alleges that Arora was involved in soliciting Leong to leave TIBeO and join Ensuant, in violation of

Arora's contractual obligations to TIBeo.

37. Since his resignation from TIBeO, Arora has contacted, in addition to Petracek,

Gowda, and Leong, numerous other TIBeO employees. Upon information and belief, several of

these contacts involved Arora's solicitation of TIBeO employees. TIBeO is further informed and

believes and thereon alleges that Petracek and Gowda were involved in soliciting one or more of

these and/or other TIBeO employees to leave their employment at TIBeO and join Ensuant.

38. After filing this lawsuit, TIBeO initially believed that Defendants had stopped

soliciting TIBeO's employees. However, it is now apparent that Defendants are continuing to

solicit TIBeO employees. TIBeO is informed and believes and thereon alleges that such TIBeO



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employees are being encouraged by Defendants to breach their contractual obligations to TIBCO by

disclosing and/or using TIBCO's trade secrets and/or confidential information. TIBCO is further

informed and believes and thereon alleges that one or more additional TIBCO employees have left

TIBCO to join Ensuant as a result of Defendants' improper solicitations.

39. TIBCO is further informed and believes and thereon alleges that, in addition to

recruiting Arora's former Business Events colleagues, Defendants have been communicating with

TIBCO clients in an attempt to steal them away. TIBCO is informed and believes and thereon

alleges that Ensuant is now doing business with several of TIBCO's Business Events clients.

TIBCO is further informed and believes and thereon alleges that Defendants are wrongfully using

TIBCO's trade secrets and/or confidential information to solicit and/or work with those customers.

F. Ensuant Sells Products And Services To Business Events Clients.

40. Upon information and belief, Ensuant offers both its own proprietary software

products as well as related installation and consulting services. Upon information and belief,

Ensuant utilizes a technology known as iNDUS-the Ensuant Applications Network, "a model

driven platform that takes advantage of Moore's law and declarative languages." Upon information

and belief, Ensuant also offers information technology and product strategy consulting services

based on the Ensuant Application Network. These services include technology evaluations and

selection, and mapping business requirements to the correct technology set.

41. TIBCO is informed and believes and thereon alleges that Defendants are using trade

secrets and other confidential information misappropriated from TIBCO in connection with

Ensuant's business. For example, Defendants are soliciting former TIBCO customers - customers

about whom Defendants know many non-public and confidential details as a result of their

employment with TIBCO. TIBCO is informed and believes and thereon alleges Defendants are

wrongfully using such information to try to solicit TIBCO' s customers. F or example, TIBCO is



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informed and believes and thereon alleges that Defendants are wrongfully using trade secret and

confidential information concerning TIBCO clients' software configurations and implementations to

obtain new business from those same clients for Ensuant. TIBCO is further informed and believes

and thereon alleges that Defendants are wrongfully using trade secrets and confidential information

concerning TIBCO customer preferences to obtain new business from those same clients for

Ensuant. TIBCO is further informed and believes and thereon alleges that Defendants are disclosing

and/or misusing confidential information regarding TIBCO's employees and operations. TIBCO is

further informed and believes and thereon alleges that Defendants are making disparaging and

libelous statements regarding TIBCO to such customers and prospective customers, including

statements that TIBCO does not have sufficient personnel and/or resources to perform adequate

services to support TIBCO software.

42. Ensuant has marketed and continues to market its products and services to current

Business Events clients in a variety of industries.

G. Defendants' Illegal Actions Have Harmed And Threaten To Continue Harming

TIBCO.

43. Business Events is the most valuable product among those offered by TIBCO's

Quantum Leap Group. Business Events accounted for tens of millions of dollars in revenue in 2009,

and this figure is expected to increase significantly in 2010 and beyond.

44. Business Events is also important because it drives sales of other TIBCO software

products and services. The value of Business Events as a sales tool to TIBCO is incalculable but

most certainly in the millions of dollars.

45. TIBCO has already incurred damages as a result of Defendants' actions. Should

Defendants' unlawful acts continue, the damages to TIBCO could be in the millions of dollars.



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Moreover, Defendants' wrongful acts have caused, and continue to cause, irreparable harm to

TIBCO and its business.

FIRST CAUSE OF ACTION

(AGAINST ALL DEFENDANTS)

Misappropriation Of Trade Secrets

46. TIBCO repeats and realleges each and every allegation in the foregoing paragraphs as

though fully set forth herein.

47. TIBCO enjoys an advantage over potential competitors in the industry for complex

events processing ("CEP") software and related services because of its creation of highly

confidential trade secrets, including but not limited to the TIBCO Trade Secrets. TIBCO has taken

reasonable efforts under the circumstances to preserve the confidentiality of the TIBCO Trade

Secrets.

48. Defendants Arora, Petracek and Gowda had access to the TIBCO Trade Secrets while

employed at TIBCO and were contractually and/or otherwise obligated to maintain the secrecy of

those trade secrets. Defendants Arora, Petracek and Gowda contractually agreed, among other

things, that TIBCO's trade secrets would be used by them only in connection with their work for

TIBCO and not disclosed or revealed in any manner to any other person or entity. TIBCO is

informed and believes and thereon alleges that Defendants Ensuant and Does 1-100 acquired TIBCO

Trade Secrets through improper means and/or from persons they knew or reasonably should have

known owed a duty to maintain their secrecy. TIBCO is further informed and believes and thereon

alleges that all Defendants subsequently used this information for their own benefit and not on

behalf ofTIBCO.

49. TIBCO is informed and believes and thereon alleges that Defendants used and are

presently using TIBCO's Trade Secrets without TIBCO's express or implied consent, authorization

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or authority.

50. Defendants obtained the trade secret information described above directly or indirectly

from TIBCO and not from Defendants' own independent research and efforts.

51. Each of the acts of misappropriation was done willfully and maliciously by

Defendants, thereby entitling TIBCO to exemplary damages pursuant to California Civil Code §

3426.3(c).

52. As a direct and proximate cause of Defendants' misappropriation of TIBCO's Trade

Secrets, Defendants have been unjustly emiched and TIBCO has sustained damages in an amount to

be proven at trial.

53. TIBCO has also suffered irreparable harm as a result of Defendants' threatened and

actual misappropriation, and TIBCO will continue to suffer irreparable injury that cannot be

adequately remedied at law unless Defendants, their agents, employees, and all other persons acting

in concert with them, are enjoined from engaging in any further such acts of misappropriation.

SECOND CAUSE OF ACTION

(AGAINST PUNEET ARORA)

Breach of Contract

54. TIBCO incorporates and realleges the allegations set forth in the foregoing paragraphs

as if fully set forth herein.

55. On April 12, 1999 in San Jose, California, Arora entered into the Arora Employment

Agreement with TIBCO. (Ex. A.)



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56. The Arora Employment Agreement contains a section prohibiting the solicitation of

TIBeO employees. Under this section, Arora agreed "that during the term of this Agreement and for

a period of (1) year thereafter, [he] shall not, directly or indirectly, either for himself or for any other

person ... , corporation or other legal entity, solicit any then employee of [TIBeO] to leave the

employment ofTIBeO." (Ex. A.)

57. On multiple occasions since his resignation from TIBeO on July 29,2009, Arora has

contacted various TIBeO employees about working at Ensuant. Among the TIBeO employees he

has contacted are Petracek, Gowda, and Leong-all of whom have since resigned from TIBeO.

Petracek and Gowda are now working for Ensuant. TIBeO is informed and believes and thereon

alleges that Arora has continued wrongfully to solicit TIBeO employees in violation of his

contractual obligations to TIBeO.

58. As part of the Arora Employment Agreement, Arora also agreed to the terms of the

Non-Disclosure/Assignment Agreement ("Non-Disclosure Agreement") attached as Exhibit A to the

Arora Employment Agreement. Pursuant to Section III of the Non-Disclosure Agreement, Arora

agreed to hold certain defined "Proprietary Information" in confidence and not to disclose or reveal,

in any manner, such information to any person or entity "while employed with [TIBeO] and

thereafter." Section I of the Non-Disclosure Agreement broadly defines "Proprietary Information"

to include the following:

(A) Trade secrets and other proprietary and confidential information which are owned by

[TIBeO] and which have to do with:

(1) the operation of [TIBeO' s] business, consisting, for example, and not

intending to be inclusive, of its lists or other identifications of clients or prospective clients of

[TIBeO] (and key individuals employed or engaged by such clients or prospective clients), the

nature and type of services rendered to such clients (or proposed to be rendered to prospective

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clients), fees charged or to be charged, proposals, inventions, methodologies, algorithms, formulae,

processes, compilations of information, form and content of data bases, designs, drawings, models,

equipment, results of research proposals, job notes, reports, records, specifications, software,

firmware and procedures used in, or related to, [TIBCO's] products; and

(2) [TIBCO's] relations with its employees, including without limitation, salaries, job

classifications and skill levels;

(B) Financial, sales and marketing data compiled by [TIBCO] as well as [TIBCO's]

financial, sales and marketing plans and strategies, customer lists and non-public pricing;

(C) All ideas, concepts, information and written material about a client disclosed to

[Arora] by [TIBCO], or acquired from a client of [TIBCO], and all financial, accounting, statistical,

personnel and business data and plans of clients, are and shall remain the sole and exclusive property

and proprietary information of [TIBCO], or said client;

(D) Any other information designated by [TIBCO] to be confidential, secret and/or

proprietary.

59. Arora has breached the Arora Employment Agreement, including by soliciting TIBCO

employees to leave the employment of TIBCO. On information and belief, Arora has further

breached the Arora Employment Agreement by using and/or disclosing TIBCO's confidential and

proprietary information for Defendants' own benefit and not for the benefit of TIBCO, without

TIBCO's consent or authorization.

60. Arora's acts have been deliberate, willful, intentional, and in bad faith, with full

knowledge and in conscious disregard of his duties under the Arora Employment Agreement, with

intent to leverage TIBCO's substantial investment in its employees for his own benefit as Founder



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and CEO of Ensuant.

61. Because of Arora's breaches, which are continuing at least to the date of this First

Amended Complaint, TIBCO has been deprived of the benefits of its investment in Petracek,

Gowda, and Leong. Due to the loss of these employees, TIBCO has incurred, in addition to the loss

of personnel investments, additional costs to hire and train replacements. In addition, TIBCO has

been, and continues to be, seriously and irreparably damaged by Arora's violations of his contractual

obligations to maintain TIBCO's confidential information in secrecy.

62. As a result of these alleged actions, Arora has been unjustly enriched and TIBCO has

been injured and damaged. Accordingly, TIBCO is entitled to money damages to compensate it for

the losses caused by Arora's breaches of the Arora Employment Agreement.

63. TIBCO has also suffered irreparable harm as a result of Arora's breaches of his

confidentiality obligations to TIBCO, and TIBCO will continue to suffer irreparable injury that

cannot be adequately remedied at law unless Arora, his agents, employees, and all other persons

acting in concert with him, are enjoined from engaging in any further such breaches.

THIRD CAUSE OF ACTION

(AGAINST BASANTH GOWDA)

Breach of Contract



65. On or about August 31,2005, Gowda entered into an Employment Agreement, which

attached a Non-Disclosure/Assignment Agreement as Exhibit A ("Gowda Agreement"). A true and

correct copy of the Gowda Agreement is attached hereto as Exhibit D.



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66. The Gowda Agreement contains a section prohibiting the solicitation of TIBCO

employees. Under Section V of the Gowda Agreement, Gowda agreed, among other things:

"During the term of this Agreement and for a period of one (1) year thereafter in any county in the

United States in which TIBCO does business including a list of such counties available from Human

Resources, I shall not, directly or indirectly, either for myself or for any other person, firm,

corporation or other legal entity, solicit any then employee of TIBCO to leave the employment of

TIBCO .... "

67. TIBCO is informed and believes and thereon alleges that, since his resignation from

TIBCO on or about May 7, 2010, Gowda has contacted one or more TIBCO employees about

working at Ensuant, in violation of his contractual obligations to TIBCO.

68. As part of the Gowda Agreement, Gowda also agreed to the protect TIBCO's

confidential information. Among other things, under Section I of the Gowda Agreement, Gowda

agreed:

I. PROPRIETARY INFORMATION. "Proprietary Information" means the

following information relating to TIBCO's business:

(A) Trade secrets and other proprietary and confidential information, including

without limitation, software, formulas, designs, drawings, customer data, pricing, methods,

processes, machines, discoveries, technologies, computer programs and systems, research, works of

authorship, improvements, developments, employee lists, salaries, job classifications, skill levels,

financial, business, and marketing data, plans and strategies, but excluding information that is not

generally known to the public through no fault of mine and which cannot be discovered or replicated

by a third party without substantial expense; and



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(B) Any other information designated by TIBeO to be confidential, secret and/or

proprietary.

"Proprietary Information" also means all ideas, concepts, information and written material

about a customer or any other third party with whom TIBeO does business, disclosed to me by

TIBeO, or acquired from a customer or any other third party with whom TIBeO does business,

excluding information that is not generally known to the public through no fault of mine and which

cannot be discovered or replicated by a third party without substantial expense.

All Proprietary Information that comes into my possession while employed by TIBeO is the

exclusive property of TIBeO. I will use the Proprietary Information only in connection with my

work for TIBeO. I will, while employed with TIBeO and thereafter, hold the Proprietary

Information in confidence and will not disclose or reveal any Proprietary Information to any person

or entity.

69. Gowda has breached the Gowda Agreement, including by soliciting one or more

TIBeO employees to leave the employment of TIBeO. On information and belief, Gowda has

further breached the Gowda Agreement by using and/or disclosing TIBeO's confidential and

proprietary information for Defendants' own benefit and not for the benefit of TIBeO, without

TIBeO's consent or authorization.

70. Gowda's acts have been deliberate, willful, intentional, and in bad faith, with full

knowledge and in conscious disregard of his duties under the Gowda Agreement.

71. Because of Gowda's breaches of the Gowda Agreement, TIBeO has been damaged in

an amount to be proven at trial. Accordingly, TIBeO is entitled to money damages to compensate it

for the losses caused by Gowda's breaches of the Gowda Agreement.



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72. TIBCO has also suffered irreparable harm as a result of Gowda's breaches of his

confidentiality obligations to TIBCO, and TIBCO will continue to suffer irreparable injury that

cannot be adequately remedied at law unless Gowda, his agents, employees, and all other persons

acting in concert with him, are enjoined from engaging in any further such breaches.

FOURTH CAUSE OF ACTION

(AGAINST PUNEET ARORA, ENSUANT, INC., AND DOES 1 THROUGH 100)

Tortious Interference with Contract (Petracek Employment Agreement)



74. On December 6, 2001 in Calgary, Canada, Nelson Petracek entered into the Petracek

Agreement with TIBCO. Pursuant to section 7(t), the Petracek Agreement "shall be construed in

accordance with, and governed by, the laws of the Province of Ontario and the laws of Canada .... "

A true and correct copy of this agreement is attached hereto as Exhibit C.

75. As part of the Petracek Agreement, Petracek agreed to the protect TIBCO's

confidential information. Among other things, under Section 3 of the Petracek Agreement, Petracek

agreed, both during and after his employment with TIBCO, to: (a) "keep in confidence all

Confidential Information and not, directly or indirectly, disclose any Confidential Information to any

person whatsoever"; (b) "not, directly or indirectly, use any Confidential Information for my own

benefit or for the benefit or any person or business whatsoever"; and (c) "not, directly or indirectly,

use or copy any Confidential Information for any reason." Section 2 of the Petracek Agreement

defines "Confidential Information."

76. At some point before or following his resignation from TIBCO, Petracek joined

Ensuant as Co-Founder and Vice President Field Operations. Upon information and belief,

Defendants hired Petracek with the expectation that he would solicit further TIBCO employees to



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leave their employment with TIBCO and join Ensuant.

77. TIBCO is informed and believes and thereon alleges that Defendants knew of the

terms and conditions of the Petracek Agreement. Having served in various managerial and

executive positions at TIBCO (including Senior Member of the Technical Staff, ArchitectlPrincipal

Engineer, Principal Architect, Senior Architect, Vice President Engineering, Vice President Strategic

Technology Group, and finally North America Chief Technology Officer) from December 8, 1998 to

July 29, 2009, TIBCO is informed and believes and thereon alleges that Arora knew that newly-

hired TIBCO employees enter into employment agreements which typically include nonsolicitation

provisions, and specifically that the Petracek Agreement included such provisions.

78. TIBCO is informed and believes and thereon alleges that, with Defendants'

knowledge, support, and encouragement, Petracek has solicited one or more TIBCO employees.

79. Defendants' wrongful and malicious conduct has caused andlor contributed to

Petracek's breach of the Petracek Agreement. As a direct and proximate result, TIBCO has suffered

damages in an amount to be proven at trial.

80. Defendants' conduct was willful, malicious, oppreSSIve, and fraudulent, entitling

TIBCO to an award of punitive damages.

81. Defendants threaten to and, unless restrained, will disrupt TIBCO's business and

reputation to TIBCO's great and irreparable injury, for which damages would not afford adequate

relief, in that they would not completely compensate for the injury to TIBCO's business reputation

and goodwill.

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FIFTH CAUSE OF ACTION

(AGAINST PUNEET ARORA, ENSUANT, INC., AND DOES 1 THROUGH 100)

Tortious Interference with Contract (Gowda Agreement)



83. On August 31, 2005 in Dunwoody, Georgia, Basanth Gowda entered into the Gowda

Agreement with TIBCO. Pursuant to section XII, the Gowda Agreement "shall be governed by and

construed in all respects in accordance with the laws of the state of California." A true and correct

copy of this agreement is attached hereto as Exhibit D.

84. The Gowda Agreement contains a provision prohibiting the solicitation of TIBCO

employees. Under this section, Gowda agreed that "during the term of this Agreement and for a

period of one (1) year thereafter in any county in the United States in which TIBCO does business ..

. I shall not, directly or indirectly, either for myself or for any other person ... , corporation or other

legal entity, solicit any then employee ofTIBCO to leave the employment ofTIBCO .... " (Ex. D.)

85. At some point following his resignation from TIBCO, Gowda joined Ensuant. Upon

information and belief, Defendants hired Gowda with the expectation that he would solicit further

TIBCO employees to leave their employment with TIBCO and join Ensuant.

86. TIBCO is informed and believes and thereon alleges that Defendants knew the terms

and conditions of the Gowda Agreement. Having served in various managerial and executive

positions at TIBCO (including Senior Member of the Technical Staff, Architect/Principal Engineer,

Principal Architect, Senior Architect, Vice President Engineering, Vice President Strategic

Technology Group, and finally North America Chief Technology Officer) from December 8, 1998 to

July 29, 2009, TIBCO is informed and believes and thereon alleges that Arora knew that newly-

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hired TIBeO employees enter into employment agreements which typically include nonsolicitation

provisions, and specifically that the Gowda Agreement included such provisions.

87. TIBeO is informed and believes and thereon alleges that, with Defendants'

knowledge, support, and encouragement, Gowda has solicited one or more TIBeO employees.

88. Defendants' wrongful and malicious conduct has caused and/or contributed to

Gowda's breach of the Gowda Agreement, including its employee nonsolicitation provisions. As a

direct and proximate result, TIBeO has suffered damages in an amount to be proven at trial.

89. Defendants' conduct was willful, malicious, oppreSSIve, and fraudulent, entitling

TIBeO to an award of punitive damages.

90. Defendants threaten to and, unless restrained, will cause TIBeO great and irreparable

injury, for which damages would not afford adequate relief, in that they would not completely

compensate for the injury to TIBeO's business, reputation and goodwill.

SIXTH CAUSE OF ACTION

(AGAINST ALL DEFENDANTS)

Unfair Competition under Cal. Bus. & Prof. Code § 17200

91. TIBeO incorporates and realleges the allegations set forth in the foregoing paragraphs


92. Defendants' activities in connection with the solicitation of TIBeO employees,

solicitation of TIBeO customers, and unfair competition with TIBeO are outside the boundaries of

fair competition.

93. Defendants' unlawful, unfair, fraudulent, and deceptive business acts and practices

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constitute unfair competition in violation of the California's Unfair Trade Practices Act, Business

and Professions Code Section 17200.

94. Defendants' solicitations of TIBCO's clients violate California laws against tortious

interference with contract.

95. In addition, TIBCO is informed and believes and thereon alleges that each of

Defendants has made false and defamatory statement regarding TIBCO's business and/or services,

including but not limited to making statements to clients and potential clients and falsely stating that

TIBCO does not have sufficient personnel and/or resources to perform adequate services to support

TIBCO software and that TIBCO's products are unstable.

96. TIBCO is informed and believes and thereon alleges that each of Defendants knew the

falsity of the statements at the time the statements were made. TIBCO is further informed and

believes and thereon alleges that the statements were made with malice and specific intent to injure

TIBCO's business and business reputation.

97. As a result of these alleged actions, Defendants have been unjustly enriched and

TIBCO has been injured and damaged. Unless Defendants' alleged actions are enjoined, TIBCO

will continue to suffer injury and damage, which includes financial losses as well as loss of

goodwill.

98. Pursuant to California Business and Professions Code Section 17203, TIBCO is

entitled to preliminary and permanent injunctive relief ordering Defendants to cease this unfair

competition, as well as disgorgement of all of Defendants' profits associated with this unfair

competition.



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PRAYER FOR RELIEF

WHEREFORE, in consideration of the foregoing, PlaintiffTIBCO Software Inc. respectfully

requests that this Court enter a judgment in Plaintiff s favor and against Defendants Ensuant, Inc.,

Puneet Arora, Nelson Petracek, Basanth Gowda, and Does 1 through 100, inclusive, as follows:

1. A judgment in favor of TIBCO and against Defendants on all causes of action;

2. A preliminary and permanent injunction enjoining Defendants, their agents,

representatives, employees, and all persons in active concert or participation with them, from the

following:

(a) Refusing to promptly return any and all TIBCO property in their possession,

including any and all ofTIBCO's confidential information and materials, and specifically including

but not limited to any ofTIBCO's computers (including any laptop computers), any source code

relating to any ofTIBCO's products, any product descriptions, financial data or sales or marketing

materials, and any other information belonging to TIBCO;

(b) Using or disclosing in any manner TIBCO's confidential, proprietary and trade

secret information, including but not limited to TIBCO's source code, know-how and other

confidential and proprietary information regarding TIBCO's Business Events and other software;

confidential information regarding the details of TIBCO customer implementations of Business

Events and/or other software; product development plans, confidential sales strategies, marketing

plans and business plans; confidential information regarding TIBCO's customers and potential

customers; confidential financial information regarding TIBCO and its business; and confidential

information regarding TIBCO employees;



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(c) Contacting, soliciting or transacting any business with or for any TIBCO clients

using any ofTIBCO's trade secrets or confidential information;

(d) Making any disparaging statements about TIBCO; and

(e) Soliciting, inducing, recruiting or otherwise encouraging TIBCO's employees to

leave their employment with TIBCO; and

(f) any further acts of unfair competition;

3. An order requiring the Defendants to account for all gains, profits and advantage

derived from their misappropriation of TIBCO's confidential, proprietary and/or trade secret

information;

4. An order requiring the Defendants to disgorge all profits earned from their unlawful

conduct, together with restitution to TIBCO arising from Defendants' unlawful conduct;

5. An order requiring specific enforcement of the employee non-solicitation and

confidentiality terms of the Arora Agreement, Petracek Agreement, and Gowda Agreement;

6. An order awarding TIBCO damages according to proof;

7. An order awarding TIBCO exemplary and punitive damages to the extent allowed by

law and in an amount according to proof;

8. An order awarding TIBCO costs of suit, prejudgment and post-judgment interest, and

reasonable attorneys' fees; and



1 9. Granting TIBeO such other and further relief as the eourt may deem just and proper.

2

3 DATED: July 25,2011.

4

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6 :ED~}lG~

Scott D. Baker (SBN 84923) 7 William R. Overend (SBN 180209)

8 Attorneys for Plaintiff TIBeO Software Inc.

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· EXHIBIT A

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEME~T is entered into as of the ~ day of j\PR\L 1999, by and between !(,Hj \~t:-r A1<..;.-1~~f.,; , (the "EMPLOYEE") and TIBCO Software Inc. (the nEMPLOYER").

I. EMPLOYMENT

EMPLOYER employs EMPLOYEE, and EMPLOYEE accepts employment with EMPLOYER, on the terms and conditions set forth in this Agreement.

II. TERMS OF EMPLOYMENT

The employment relationship between EMPLOYEE and EMPLOYER in an at wi" basis may be terminated as follows:

(A) During the first ninety (90) days of employment, either party may terminate without prior notice and for any reason whatsoever, or for no reason and without cause; or

(B) After the first ninety (90) days of employment, either party may terminate for any reason whatsoever, or for no reason and without cause, upon the giving of (I) two weeks' written notice to the other party or (ii) pay equal to two (2) weeks of EMPLOYEE's salary in lieu of such notice; or

(C) At any time, EMPLOYER may terminate EMPLOYEE without prior notice if EMPLOYEE materially fails to perform any obligation or duty owed to EMPLOYER.

III. DUTIES

EMPLOYEE shall perform such tasks and duties as may be assigned by EMPLOYER, from time to time. At all times EMPLOYEE shall follow all of EMPLOYER's legal instructions and directions and shall abide by all of EMPLOYER's rules and procedures in force from time to time while employed. EMPLOYEE shall devote his full time, attention, skill and efforts to the tasks and duties assigned by EMPLOYER. Without the prior written consent of EMPLOYER, EMPLOYEE shall not provide services, for compensation, to any other person or business entity while employed by EMPLOYER.

IV. COMPENSATION

As compensation for all services to be rendered by EMPLOYEE to EMPLOYER, EMPLOYEE shall be paid a salary at the annual rate of ...."..,~~= __ ----,,---,..-_. Said salary shall be payable in accordance with EMPLOYER's standard procedures. EMPLOYER shall withhold from any amounts payable as compensation all federal, state, municipal or other taxes as are required by any law, regulation or ruling.

(A) EMPLOYEE understands and agrees that EMPLOYEE's salary may be adjusted by EMPLOYER prospectively, and at its sole discretion from time to time, without affecting the remaining terms of this Agreement.

(8) EMPLOYEE understands and agrees that any other compensation that may be paid to EMPLOYEE for services rendered, or to be rendered, (whether by way of any incentive payment, opportunity to acquire stock or any other form of additional compensation) shall rest in the sole discretion of EMPLOYER.

V. PROPERTY RIGHTS; DUTY TO DISCLOSE

EMPLOYEE hereby acknowledges and agrees. to be bound by the provisions of the EMPLOYER's "Non-Disclosure/Assignment Agreement" attached hereto as Exhibit A and made a part hereof by this reference as though set forth in full herein. The provisions of Exhibit A shall survive any termination of this Agreement.

VI. NONSOLICITATION OF EMPLOYEES

EMPLOYEE specifically agrees that during the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE shall not, directly or indirectly, either for himself or for any other person, firm, corporation or other legal entity, solicit any then employee of EMPLOYER to leave the employment of EMPLOYER.

VII. NO ASSIGNMENT

This Agreement may not be assigned by EMPLOYEE without the written consent of EMPLOYER. This Agreement shall be binding on the heirs, executors, administrators, personal representatives, successors and assigns of EMPLOYEE and EMPLOYER.

. VIII. GOVERNING LAW

This Agreement shall be governed by and construed and enforced in accordance with and subject to the laws of the State where the EMPLOYEE was principally rendering services for EMPLOYER.

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IX. NOTICES

All notices or other communications provided for by this Agreement shall be made in writing and shall be deemed properly delivered when (i) delivered personally or (ii) by the mailing of such notice by registered or certified mail, postage prepaid, to the parties at the addresses set forth on the signature page of this Agreement (or to such other address as one party designates to the other in writing).

X. ENTIRE AGREEMENT AND WAIVER

This Agreement is the entire agreement between the parties relating to EMPLOYEE's employment. It supersedes all prior agreements, arrangements, negotiations and understandings related thereto. No waiver of any term, provision or condition of this Agreement shall be deemed to be, or shall constitute, a waiver of any other term, provision of condition herein, whether or not similar. No such waiver shall be binding unless in writing and signed by the waJving party.

XI. AMENDMENTS

No supplement, modification or amendment of any term, provision or condition of this Agreement shall be binding or enforceable unless evidenced in writing executed by the parties hereto.

XII. COUNTERPARTS

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the sanie instrument.

XIII. REFORMATION/SEVERABILITY

If any provision of this Agreement is declared invalid by any tribunal, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in effect.

After carefully reading and considering the foregoing provisions and Exhibit A, EMPLOYEE has voluntarily signed this Agreement on as of the date first above written.

EMPLOYER: EMPLOYEE:

3

TISCO Software Inc. Name of EMPLOYER E PLOYEE Signature

3165 Porter Drive £/12 .. l.f rz L IN u or) R.p Address Address

Palo Alto. CA 94304 SM <Ie s. £ c,p.. "1 S-11N City, State Zip'

( "fOo) Cllt.--r- ~~ A- 6:)-Telephone

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EXHIBIT A

NON-DISCLOSURE/ASSIGNMENT AGREEMENT

~:---_,---' ("EMPLOYEE") is employed, or is being hired, by TISCO Software Inc. (lithe COMPANY") and may learn, or has learned, Information which the COMPANY keeps secret from its competitors and others. As a condition of employment or continued employment, EMPLOYEE agrees to the terms of this Agreement.

I. PROPRIETARY INFORMATION DEFINED

The term "Proprietary Information" means the following classes of information relating to the COMPANY's business:

(A) Trade secrets and other proprietary and confidential information which are owned by the COMPANY and which have to do with:

(8)

(C)

(1) the operation of the COMPANY's business, consisting, for example, and not intending to be inclusive, of its lists or other identifications of clients or prospective clients of the COMPANY (and key individuals employed or engaged by such clients or prospective clients), the nature and type of services rendered to such clients (or proposed to be rendered to prospective clients), fees charged or to be charged, proposals, inventions, methodologies, algorithms, formulae, processes, compilations of information, form and content of data bases, designs, drawings, models, equipment, results of research proposals, job notes, reports, records, specifications, software, firmware and procedures used in, or related to, the COMPANY's products; and

(2) the COMPANY's relations with its employees, including without limitation, salaries, job classifications and skillieve/s;

Financial, sales and marketing data compiled by the COMPANY as well as the COMPANY's financial, sales and marketing plans and strategies, customer lists and non-public pricing;

All ideas, concepts, information and written material about a client disclosed to EMPLOYEE by the COMPANY, or acquired from a client of the COMPANY, and all financial, accounting, statistical, personnel and business data and plans of clients, are and shall remain the sale and exclusive property and proprietary information of the COMPANY, or said client;

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(D) Any other information designated by the COMPANY to be confidential, secret and/or proprietary.

II. OBLIGATION TO KEEP CONFIDENTIAL

EMPLOYEE acknowledges and agrees that all Proprietary Information that comes into EMPLOYEE's possession (including any information originated or developed by EMPLOYEE while employed by the COMPANY) is secret and is the exclusive property of the COMPANY. EMPLOYEE agrees to use the Proprietary Information only in connection with EMPLOYEE's work for the COMPANY. EMPLOYEE agrees, while employed with the COMPANY and thereafter, to hold the Proprietary Information in confidence and agrees not to disclose or reveal, in any matter, any Proprietary Information to any person or entity.

III. RETURN OF INFORMA"nON

EMPLOYEE agrees, upon the request of the COMPANY or upon leaving the employ of the COMPANY, to return promptly to the COMPANY the original and all copies of any documents, reports, notes or other materials incorporating or reflecting, in any way, any Proprietary Information in the possession or under the control of EMPLOYEE.

IV. INVENTION BELONGS TO THE COMPANY

EN/PLOYEE acknowledges and agrees that any inventions, discoveries or improvements which EMPLOYEE has conceived or made or may conceive or make during EMPLOYEE's employment with the COMPANY, whether made individually or jointly with others, which:

(1) relate or pertain to, or are in any way connected with, the systems, products, apparatus or methods utilized, or are the subject of research or development (actual or anticipated) by the COMPANY; or

(2) utilize equipment, supplies, facilities or Proprietary Information belonging to the COMPANY (collectively the "Inventions" shall be the sole exclusive property of the COMPANY and the Inventions shall be deemed to be works for hire.

(A) EMPLOYEE agrees to make prompt and full disclosure to the COMPANY of all inventions, discoveries or improvements made by EMPLOYEE during the term of the Agreement, solely or jOintly with others, whether or not such invention, discovery or improvement will actually become the property of the COMPANY pursuant to this Agreement. EMPLOYEE agrees to make such disclosures with the understanding and the agreement of the COMPANY that, as to any invention, discovery or

6

improvement to which the COMPANY is not entitled, the information disclosed will be received and held strictly in confidence by the COMPANY and that such disclosure is for the sole purpose of determining whether or not rights to such invention, discovery or improvement is the property of the COM PANY.

(8) To the extent EMPLOYEE would be deemed to be an owner of any of the rights in the Invention, EMPLOYEE hereby assigns to the COMPANY all such rights in the Inventions. EMPLOYEE hereby agrees to execute and sign any and all applications, assignments or other instruments which the COMPANY may deem necessary in order to enable it, at its expense, to apply for, prosecute and obtain Letters of Patent, trademarks, copyright or other legal protections in the United States or foreign countries for the Inventions, or in order to assign or convey to or vest in the COMPANY the sole and exclusive right, title and interest in and to the Inventions.

(C) The obligations contained in this Paragraph 4, except for the requirements as to disclosure, do not apply to any rights EMPLOYEE may have acquired in connection with an invention, discovery or improvement for which no equipment, supplies, facility or trade secret information of the COMPANY was used and which was developed entirely on the EMPLOYEE's own time, and provided that such invention, discovery or improvement does not: (I) relate directly or indirectly to the business of the COMPANY or to the COMPANY's actual or demonstrable anticipated research or development; and (Ii) result from any work performed by EMPLOYEE for, or on behalf of, the COMPANY.

V. INJUNCTIVE RELIEF

EMPLOYEE acknowledges and agrees that, because any use or disclosure of the COMPANY's Proprietary Information other than for the COMPANY's benefit and without the COMPANY's prior written consent would cause irreparable injury to the COMPANY, in addition to any other remedies available, will be entitled to obtain an injunction to enforce the provisions of this Agreement.

VI. REFORMATION/SEVERABILITY

If any provision of this agreement is declared invalid by any tribunal, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time .and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that It cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in effect.

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· EXHIBITB

Y'''''.~'' r' " \,

BTl 8 CO· The Power of Now'·

July 29, 2009

Puneel Arora 1582 Wright Avenue Sunnyvale, CA 94087

Dear Puneet,

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This is your exit package based on your resignation from TIBCO Software Inc. effective July 29, 2009. YOLI will receive your final paycheck which will include any accrued and unused vacation time and allY other remunerntion of any sort to which you are entitled. In addition, if you have earned any commissions, a check will be mailed to your home on the regularly scheduled commissions pay date.

Enclosed is a document that provides detailed benefits and other relevant information. This document also includes detailed information regarding your right to continuc your health coverage under the Consolidation and Omnibus Reconciliation Act ("COBRA"). Also enclosed is a SaJes Certification. Please sign, date, initial and return to me via confidential fax number listed below.

You have certain ongoing duties to rlBCO pursuant to the terms of your Employment Agreement. You agreed, among other things, not to improperly use or disclose proprietary information ofTlBCO, either during or after your employment with TIBCO. This proprietary information includes, without limitation, non-public information regarding TIBCO's products, product documentation, marketing strategies, product roadmaps. customers and prospects, competitive research and other related int'OI·matiol). Upon your lermination, you must return all of TISCO's property and confidential and proprietary information. If you would like a copy of your Employment Agreement for a full description of your ongoing ohliga(ions. please let me know.

In addition, it is TIBCO's policy to refer all reference checks to the Human Resources Department. TrnCO will only confirm dates of employment and job title in connection with any reference checks. Pleuse contact me if you have any questions.

Regards,

Lisa Winningham Corporate Human Resources 3303 Hillview Avenue Palo Alto, CA 94304 Phone: 650.846.5009 ConfidenLial fax: 650.846.1028

· EXHIBIT C

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TIBCO SOFTWARE CANADA INC. EMPLOYEE CONFIDENTIALITY, NON-COMPETITION

AND NON-SOLICITATION AGREEMENT

1. INTRODUCTION

Page I

This EMPLOYEE CONFIDENTIALITY, NON-COMPETITION AND NONSOLICITATION AGREEMENT (this "Agreementll) sets out and explains certain obligations and responsibilities I have as an employee ofTIBCO Software Canada Inc. ("TIBCO") and confirms my agreement to abide by them.

2. DEFINITIONS

(a) Confidential Information: means all of the materials and information (whether or not reduced to writing and whether or not patentable or protected by copyright) provided by TIBCO or Tmco Software Inc. to me, or which is available to me during the course of my employment with TIBCO, including, without limitation, TmCO and TIBCO Software Inc. information concerning the following:

• customer lists, past, present and potential customer information, records, statistics, sales, training and promotional policies;

• profits, costs, pricing and sales policies, marketing plans and strategies, information relating to the distribution, sale or supply ofTIBCO's or mco Software Inc.'s products andlor services;

• records and other materials in the form of notes, letters, data, tapes, reference items, models, sketches, blueprints, drawings and writings, in any way relating to Confidential Information and any and all copies or extracts thereof;

• personnel information, including but not limited to, the names and backgrounds of key personnel, personnel lists, information about compensation and benefits, and performance evaluations of personnel;

• Inventions, as defined below, and

• any other materials or information related to TIBCO's, or TlBCO Software Inc. 's, business which is not generally known to others;

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regardless of whether such information is in paper or electronic format or any other format.

(b) Inventions: means all copyrights, patents, industrial designs, trade-marks, topographies, schematic drawings, designs, specifications, plans, trade secrets, technology, inventions (patentable or unpatentable), improvements, ideas, copyrightable works, techniques, know-how, concepts, discoveries, innovations, processes, formulae or other intellectual property, which I make or discover by myself or in conjunction with others while employed by TIBCO, which arise, directly or indirectly, from my employment with TIBCO.

(c) Pre-employment Inventions: means any Inventions that I made prior to my employment by TmCO.

3. COMMITMENT TO PROTECT CONFIDENTIAL INFORMATION

Tmco owns and has a valuable interest in the Confidential Information that it develops in its operations.

As an employee ofTIBCO, I have access to this Confidential Information, which includes information not generally known in the industry, which was discovered, developed or obtained as a result of my employment with TIBCO .

. Accordingly, I agree as follows:

(a) I will, both during and after my employment with TmCO:

• keep in confidence all Confidential Information and not, directly or indirectly, disclose any Confidential fuformation to any person whatsoever;

• not, directly or indirectly, use any Confidential Information for my own benefit or for the benefit of any person or business whatsoever; and

• not, directly or indirectly, use or copy any Confidential Information for any reason;

except for the purpose of performing my duties as an employee of and only with the consent ofTmCO.

(b) In the event of the termination of my employment I will promptly deliver to TIDCO all Confidential Information in my possession and I will not take, copy or retain any

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Page 3

records and other materials in any way relating to any Confidential Infonnation without TIBCO's prior written pennission.

(c) I confirm:

• that I do not have in my possession Confidential Information belonging to others, and therefore will not use or disclose same to TmCO during my employment, and

• that my employment will not require me to violate any obligation to or confidence with any other party, including, without limitation, any previous employers.

(d) I agree to comply with any procedures that TIBCO may adopt from time to time to preserve the confidentiality of any Confidential Information.

(e) I agree that the absence of any notice indicating confidentiality on any material will not imply that it is not Confidential Information.

(f) Without granting any right or license, TmCO agrees that the obligations imposed by this Section 3 on me shall not apply to information which:

• at the time it is received is in the public domain;

• subsequently comes into the public domain through no fault of mine;

• is lawfully received by me from a third party on an unrestricted basis;

• is already legitimately known to me prior to disclosure; or

• is required by law to be disclosed; provided, however, that I shall first have given prompt notice to TIBCO of any possible or prospective order or proceeding pursuant to which any order may result; and TIBCO shall have been afforded a reasonable opportunity to prevent or limit any such disclosure of any of the Confidential Information.

4. COMMITMENT TO DISCLOSE INVENTIONS

(a) During my employment with TmCO and at any time thereafter, I will notify my immediate supervisor promptly in writing of all Inventions.

(b) I agree that all Inventions shall be the sole property of TIBCO. I waive in whole any moral rights I may have in each of the Inventions and any part or parts thereof,

including but not limited to the right to the integrity of the work, the right to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous. Such agreement to waive is applicable regardless of whether the Inventions are considered works made in the course of employment or whether they are copyrightable. I will assist the Company andlor its nominees (without charge but at no expense to me) at any time and in every proper way to obtain for its andlor their own benefit, patents and copyrights for all such Inventions anywhere in the world and to enforce its andlor their rights in legal proceedings. As used herein, the term "Inventions" includes, but is not limited to, all discoveries, improvements, inventions, processes, developments, artworks, designs, know-how, data, computer programs (including source code), materials, inventions and formulae, whether patentable or unpatentable.

(c) I hereby assign to TIBCO all rights and interests in all such Inventions which pertain to a business in which TIBCO is engaged, is reasonably expected to engage in, or in which it has previously expressed an intention to enter, except any Pre-Employment Inventions which I cannot assign to TIBCO because of a prior invention agreement with: ---------------------------------------------------which is effective until ________ ,

(d) I have set out below (if applicable) a complete list of all Pre-Employment Inventions, including numbers of all applicable registrations or pending applications in all applicable countries, and a brief description of all unpatented inventions or ideas, which I made prior to my employment by TIBCO, which are to be excluded from this Agreement.

(e) Every Invention disclosed to anyone other than TIBCO within six (6) months after the termination of my employment with TIBCO will be presumed to be the property ofTIBCO,.unless it is proved that such Invention was first made or conceived after termination of my employment with TIBCO.

(f) During my employment with TIBCO and at any time thereafter, I will, at the request and expense ofTIBCO, complete and return to TIBCO all documents necessary for the preparation and filing of applications covering the registration of intellectual property rights in Inventions in all countries, as well as perform all other acts which TIBCO may deem necessary or advisable for the purpose of protecting or recognizing TIBCO's rights to same.

(g) I acknowledge that TIBCO from time to time may have agreements with other persons or with the Canadian government or its agencies that impose obligations or restrictions on TIBCO regarding Inventions made during the course of work under such agreements or regarding the confidential nature of such work. I agree to be

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bound by all such obligations or restrictions and to take all action necessary to discharge the obligations TIDCO may have under such agreements.

(h) Upon the tennination of my employment with TIBCO, I agree to surrender promptly to TIBCO all records or other evidence of any fuventions.

5. NON-COMPETITION AND NON-SOLICITATION

(a) I agree that for a period of one year following the termination of my employment, regardless ofthe manner of such termination, I will not directly or indirectly solicit business from any customer or potential customer of TIBCO which was served or solicited by TIDCO within the eighteen months immediately preceding the termination in regards to goods competitive with TIBea.

(b) I further agree that for a period of one year following the termination of my employment, regardless of how the termination should occur, I will not directly or indirectly hire or take away or cause to be hired or taken away any employee of TIDCO or, following the termination of employment, any employee who was in the employ of TIBCO during the six months preceding termination.

(c) I acknowledge and confirm that the scope of these covenants are in all respects and particularly in respect of time and subject matter, no more than is reasonable to protect TIBCO.

6. INJUNCTIVE RELIEF

(a) I understand and agree that the damages which TIBCO might suffer from my violation of any of my obligations listed in this Agreement would be difficult or impossible to measure and that TmCO is entitled to, in addition to all other remedies it may have, injunctive relief for any such violation (including interim, interlocutory and permanent injunctive relief).

7. GENERAL AGREEMENT PROVISIONS

(a) Should any provision in this Agreement be determined by a court to be invalid, such provision will be severable from this Agreement and the validity of the other provisions shall not be affected since they constitute separate and distinct agreements.

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(b) The failure ofTmCO to require the performance of any term of this Agreement, or the waiver by TIBCO of any breach of this Agreement by me shall not prevent a subsequent exercise or enforcement of such terms or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.

(c) This Agreement shall be binding upon me, irrespective of the reason for the termination of my employment and whether or not such termination is for cause, should my employment be terminated.

(d) I acknowledge that I have had the time to review this Agreement and to obtain independent legal advice in connection with this Agreement and its execution. I understand fully its contents and have signed it freely and voluntarily. I acknowledge that this Agreement is reasonable and understand that it is necessary to protect the legitimate interests ofTIBCO.

(e) The tenns and conditions of this Agreement can only be modified by the written agreement ofthe parties.

(f) This Agreement shall be construed in accordance with, and governed by, the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to conflicts of laws. The courts of Ontario shall have exclusive jurisdiction over all disputes that may arise between the parties arising from this Agreement.

, this JL day of UM..e~, 200J.

[INSERT EMPLOYEE'S NAME HERE)

Signature: ~Iv-;'{..)I .1.

Vl;k>.o~'AJJL. Name: Address:

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LIST OF PRE-EMPLOYMENT INVENTIONS (if applicable)

Title of Document (including application number and registration number and COWltry

where filed)

Date of Document Name of Witness on Document

BriefDescription(s) of All of Employee's Pre-Employment Unpatented Inventions Or Ideas

SIGNED: Nelson Petracek

DATED: rue. o .'

G:IZZZCJBIZZZIConfidAam\ConfidNon-COI11l>Aim loasfonn do<:

· EXHIBITD

TIBCO The Power of Now""

EMPLOYMENT AGREEMENT

As a condition of my employment with ~CO Software Inc. or its subsidiary (''TIBCO''), and in consideration of my employment with TIBCO and my receipt of the compensation paid to me by TlBCO, I, ~S N Tll 6 () fA2l) A , agree to the following:

I. AT-WILL EMPWYMENT. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH TlBCO IS FOR AN UNSPECIFIED DURATION AND CONSTITUTES "AT-wnL" EMPLOYMENT. I ACKNOWlEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY.BE TERMINATED AT ANY TIME, WITH OR WITHOUT CAUSE, AT TIIE OPTION EITIIER OF TIBCO OR MYSELF, WITH OR WITHOUT NOTICE. I FURlHER UNDERSTAND AND ACKNOWLEDGE THAT TIBCO HAS TIIE RIGHT TO CHANGE MY COMPENSATION, DUTIES, ASSIGNMENTS, RESPONSlBlLl'fIES AND LOCATION OF EMPLOYMENT WITH OR WITHOUT CAUSE OR NOTICE. MY AT-WILL EMPLOYMENT STATUS CANNOT BE MODIFIED UNLESS EVIDENCED IN WRITING BY BOTH MYSELF AND THE PRESIDENT OF TlBCO.

n. DUTIES. I shall perform and devote my full time, attention, skill and efforts to such tasks and duties as may be assigned by TIBCO. I shall follow all of TlBCO's legal inS1J1Jctions and directions and shall abide by all of TlBCO's rules, policies and procedures in force while employed. Without the prior written consent of TIBCO, I shall not provide services similar to those performed for TlBeO to any other person or business entity that would interfere with or derogate from my obligations to TlBCO while employed by TIBCO.

m. COMPENSA nON. As compensation for all services to be rendered by me to TlBCO, I shall be paid a salary as set forth in my offer letter. Said salary shall be payable in accordance with TlBCO's standard procedures and subject to adjustment pursuant to TlBCO's compensation policies in effect at the sole discretion of TlBCO. TlBCO shall withhold from any amounts payable as compensation all federal, state, municipal or other taxes as are required by any law, regulation or ruling.

IV. PROPERTY RIGHTS, DUTY TO DISCLOSE. Concurrent with the execution of this Agreement, I shall enter into and be bound by TIBCO's "NonDisclosurelAssigmnent Agreement" attached hereto as Exlnbit A. made a part hereofby this reference as though set forth in full herein.

V. NONSOLlClTAnON. During the term of this Agreement and for a period of one (1) year thereafter in any county in the United States in which TIBeO does business including a list of such counties which is available from Human Resources, I shall not, directly or indirectly, either for myself or for any other person, firm, corporation or other legal entity, solicit any then employee ofTlBCO to leave the employment ofTlBCO, nor shall I call upon, divert or solicit any of the customers of TlBCO that were or became customers during the term of my employment (as used herein, "customer" shall mean any person or company listed as sucb on the books of TlBCO, its subsidiaries or affiliates).

VI. NO BREACH OF DUTY OR CONFLICTS. I represent that my performance of this Agreement and as an employee of TlBCO does not and will not breach any agreement or duty to keep in confidence proprietary information acquired by me in confidence or in trust prior to my employment with TIBCO. I have not and I will not enter into any agreement, either written or oral. in conflict with this Agreement. I am not presently resUicted from being employed by TlBCO or entering into this Agreement by any agreement with any former or current employer, or otherwise. I aclmowledge and agree tbat TlBCO assumes no obligation or liability to me or any current or former employer regarding any debts or damages I may owe any current or former employer, if any.

vn. ENTIRE AGREEMENT AND WAIVER. This Agreement, together with the offer letter as well as the Non-Disclosure/Assignment Agreement attached hereto as f2Ibil!i1.A is the entire agreement between the parties and supersedes all prior agreements, arrangements, negotiations and understandings, including both oral and written, related thereto. No waiver of any term, provision or condition of this Agreement sball be deemed to be, or shall constitute, a waiver of any other term, provision of condition herein. No such waiver shall be binding unless in writing and signed by the waiving party.

vm.AMENDMENTS. No supplement, modification or amendment of any term, provision or condition of this Agreement shall be binding or enforceable unless evidenced in writing executed by both myself and the President ofTIBCO.

IX. ARBITRATION. Any dispute or claim, including all contract, t011, discrimination or other statutory claims, arising under or relating to this Agreement, or regarding tennination of my employment with TlBCO, but excepting claims under applicable workers' compensation law and unemployment insurance claims ("arbitrable claims") alleged against TlBeO and/or its agents shall be resolved by arbitration. Such arbitration shall be final and binding on the parties and shall be the exclusive remedy for arbitrable claims. The parties hereby waive any rights each may have to a jury trial in regard to the arbitrable claims. Arbitration shall be conducted by the American Arbitration Association in California under the National Rules for the Resolution of Employment Disputes. In any arbitration, the burden ofproofshalJ be allocated as provided by applicable law. TlBCO shall pay the fees and costs of the arbitrator. However, the arbitrator shall have the same authority as a court to award equitable relief, damages, costs, and fees (excluding the costs and fees for the arbitrator) as provided by law for the particular claims asserted. HOWEVER, the parties agree that this arbitration provision shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of TlBCO's trade secrets or proprietary information.

X. SEVERABILITY. If one or more of the provisions in this Agreement is deemed void by law, then the remliining provisions will continue in full force and effect.

XI. SURVIVAL. Paragraphs IV, V and !?' shall survive the tennination of this Agreement.

XII. GOVERNING LAW. This Agreement shall be governed by and construed in all respects in accordance with the laws of the state of California. AGREEMENT UNDERSTOOD AND FAIR. After carefully reading and considering the foregoing provisions and asking any questions needed for me to understand the terms, consequences and binding effect of this Agreement, I fully understand this Agreement and agree that all restrictions set forth are fair and reasonable. I have voluntarily signed this Agreement as of the date written below.

Signature Date

411 ~ I>UIJ""f)OPYr ~Abl£.s pi'. Address Telephone Number

DUNwopDY, t,A - .30335? City, State Zip Code

04/0l

TIBCO EXHIBIT ~

The Power of Now'"' NON·DISCLOSUREIASSIGNMENT AGREEMENT

As a condition of employment or continued employment with TIBCO Software Inc. or its subsidiary ("TIBCO',), l, Ib A$ANl H 6 D kJAA, agree that:

J. PROPRIETARY INFORMATION. "Proprietary Infonnationft means the fol1owing information relating to TIBCO's business:

(A) Trade secrets and other proprietary and confidential information, including without limitation, software, formulas, designs. drawings, customer data, pricing, methods, processes, machines, discoveries, technologies, computer programs and systems, research, works of authorship, improvements, developments, employee lists, salaries, job classifications, sldl1levels, financial, business and marketing data, plans and strategies, but excluding information that is not generally known to the public through no fault of mine and which cannot be discovered or replicated by a third party without substantial expense; and

(B) Any other information designated by TIBCO to be confidential, secret and/or proprietary. "Proprietary Information" also means a11 ideas, concepts, information and written material about a customer or any other third party with whom TIBCO does business, disclosed to me by TlBoo, or acquired from a customer or any other third party with whom TIBoo does business, excluding information that is not generally known to the public through no fault of mine and which cannot be discovered or replicated by a third party without substantial expense.

All Proprietary Information that comes into my possession while employed by TIBCO is the exclusive property of TIBCO. I will use the Proprietary Information only in connection with my work for TISCO. I will, while employed with TISCO and thereafter, hold the Proprietary Information in confidence and not disclose or reveal, any Proprietary Information to any person or entity.

n. RETAJNJNG AND ASSIGNING INVENTIONS AND ORIGINAL WORKS. Any inventions, discoveries or improvements that I have conceived/developed or made or may conceive/develop or make during my employment with TlBoo, whether made individua11y or jointly with others, which: (I) relate or pertain to, or are in any way connected with, the software, systems, products, apparatus or methods uti\ized by TIBoo, or are the subject of research or development (actual or anticipated), by TIBoo; or (2) utilize TIBoo's computers, networks, equipment, supplies, facilities or Proprietary Information (collectively, the "Inventions"), shall be the sole exclusive property of TIBCO and any copyrightable Inventions shall be deemed to be "works made for hire" as that term is defined in the United States Copyright Act.

(A) I will make prompt and full written disclosure to TlBCO of a11 inventions, discoveries or improvements made by me during the term of the Agreement, solely or jointly with others.

(B) I will assign to TIBoo all rights in the Inventions. I will cooperate, execute and sign any and all instruments which TIBoo may deem necessary in order to enable it, at its expense, to apply for, prosecute and obtain Letters of Patent, trademarks, copyright or other legal protections in the United States and or foreign countries for the Inventions, or in order to assign or convey to or vest in TIBCO the sole and exclusive right, title and interest in and to the Inventions. I further agree that my obligation to execute any such instrument or papers sha\1 continue after the terms of this Agreement (C) I agree to keep and maintain adequate and current written records of all inventions and original works of authorship made by me (solely or jointly with others) during the term of my employment with TIBoo. The records will be in the form of notes, sketches, drawings, and any other format that may be specified by TlBCO. The records will be available to and remain the sole property ofTIBoo at all times.

(0) I have attached hereto, as Attac!unent I, a list describing all inventions, original works of authorship, development, improvements, and trade secrets which were made by me prior to my employment with TIBCO (collectively, "Prior Inventions"), which belong to me, which relate to TlBCO's proposed business, products or research and development, and which are not assigned to TIBoo hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with TIBCO, I incorporate into a TIBoo product, process or machine a Prior Invention owned by me or in which I bave an interest, TIBCO is hereby granted and sba11 have a nonexclusive, royalty-ftee. irrevocable, perpetual, worldwide license to make, have made, modifY. use and seU such Prior Invention as part of or in connection with such product, process or machine. .

(E) Applicable to CaliforBia employees only: I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do not apply to any inventions which qualifY fuUy under the provisions of Section 2870 of the California Labor Code1, but agree to the obligations set forth in Section UA

m. RETURNING COMPANY PROPERTY. I will upon the request of or upon leaving the employ ofTIBCO, return promptly to TlBCO the original and all copies of any documents, reports, notes or other materials containing any Proprietary Information or information concerning Inventions. hi the event of the termination of my employment, I agree to sign and deliver the "Termination Certification" attached hereto as Attac!unent 2.

IV. AVAD..ABILITY OF INJUNCI1VE RELIEF. Because any breach of my obligations under this Agreement would cause irreparable injury to TlBoo, in addition to any other remedies available, TIBCO will be entitled to obtain an injunction to enforce the provisions of this Agreement.

V. FORMER EMPLOYER. I will not lISe or disclose IIIIJ' co1ffidentUd or proprietary hrj'ormtltion of /lily prior employer. I wiU not bring 0Il10 TIBCO premises IIIIJ' unpublished documents or property belonging ID ""y former employers, unless COlI&ented to in writing by th08e employers.

VI. AT-WILL EMPWYMENT. Nothing in this Agreement cbanges my status as an express at-will employee. I agree that unless specifically provided in writing signed by me and the President ofTlBCO, my employment with TIBCO is not for a definite period of time. Rather, my employment with TlBCO is "at-will" and may be terminated by either myself or TIBCO at any time, with or without cause or prior notice. In addition, the Company has the right to change my compensation, duties, assignments, responsibilities or location of my position at any time, with or without cause or notice.

VII. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit ofTIBCO, its successors, and its assigns.

Slgnature Date

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, (a) Arry provision in 011 omploymenllgrcemcnt which provides that 011 omployce shaD assigu, or offer to assign, my oflus or her rights in lID inventiou 10 his or her employer sbaII n01 apply 10 on inVOlItiOD thai the employee developed OlItirely OD his or her OWD tim. without usin& the employer's equipment, supplies, faciliti.s. or trade ..... et infOlmotioD excopI for those inVCUDODS thai either: (J) RoJatc at th. time of conception or reduction 10 pracDce of the invention 10 the employer's busin ..... or actual or dCJllOlJS1nbly onDciJHIled research or development of the employer; or (2) Resull fivm any work peri'ontled by the employee for the employer. (b) To the extent. provision in an omployment agreement purports 10 require on .mployee 10 assign an invention otherwise excluded from being requir.d 10 be assigned under subdivision (a), th. provision is against the public policy of this stalc and is unenforceable.

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LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP

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TIBCO SOFTWARE INC. v. ENSUANT, INC., et al. Santa Clara Superior Court No. Case No.: 1-10-CV-174346

PROOF OF SERVICE

I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is REED SMITH LLP, 101 Second Street, Suite 1800, San Francisco, CA 94105-3659. On July 25, 2011, I served the following document(s) by the method indicated below:

SECOND AMENDED COMPLAINT FOR 1. TRADE SECRETS MISAPPROPRIATION; 2. BREACH OF CONTRACT (TWO COUNTS); 3. TORTIOUS INTERFERENCE WITH CONTRACT (TWO COUNTS); AND 4. UNFAIR COMPETITION UNDER CAL. BUS. &

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PROF. CODE § 17200

by transmitting via facsimile on this date from fax number + 1 415 391 8269 the document( s) listed above to the fax number(s) set forth below. The transmission was completed before 5:00 PM and was reported complete and without error. The transmission report, which is attached to this proof of service, was properly issued by the transmitting fax machine. Service by fax was made by agreement of the parties, confirmed in writing. The transmitting fax machine complies with Ca1.R.Ct 2.306.

by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this Declaration.

by placing the document(s) listed above in a sealed envelope(s) and consigning it to an express mail service for guaranteed delivery on the next business day following the date of consignment to the addressees) set forth below. A copy of the consignment slip is attached to this proof of service.

by transmitting via email to the parties at the email addresses listed below:

Michael A. Farbstein Farbstein & Blackman A Professional Corporation 411 Borel Avenue, Suite 425 San Mateo, CA 94402 [email protected]

Patrick E. Premo, Esq. Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, CA 94041-2008 [email protected]

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I declare under penalty of perjury under the laws ofthe State of California that the above is true and correct. Executed on July 25, 2011, at San Francisco, California.

_d?'¥ Myra R. aylor US_ACTIVE·104734355,2

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