4
and performance-based stock awards by clicking through the portal between March and September
of 2022.
The RSU Agreement contains a non-solicitation clause that precludes the employee from
encouraging other Vivint employees to leave Vivint. It also contains a non-compete provision
precluding the employee from taking a job with a “core competitor” or any job with another
company in which the employee would engage in the “installation or servicing of residential or
commercial solar panels or sale of electricity generated by solar panels.” The RSU Agreement
explicitly defines Sunrun as a core competitor. The non-solicitation and non-compete clauses
bound the employee during the term of employment “and for a period of one year following the
date [the employee] ceases to be employed by [Vivint].”
4
Finally, The RSU Agreement contains a
provision precluding the employee from disclosing confidential information during or any time
after the term of employment.
clicking the acceptance button. The Bannister declaration avers that the portal required users to
open the contract documents associated with any award before clicking the accept button.
Bannister does not clarify whether the portal gave the user access to both the Grant Notice and the
accompanying RSU Agreement before permitting the user to accept the terms of these documents
by clicking a button or whether the portal opened only the Grant Notice document without giving
the user a reasonable opportunity to know the terms of the RSU Agreement before acceding to the
terms of that document by agreeing to be bound by the Grant Notice.
4
The interaction between this language and Vivint’s one-year employment contract model for its
sales representatives is somewhat ambiguous. As noted above, all sales employees sign one-year
Employment Agreements that end around October 1. If the employee does not sign a new contract
before the termination date, the employment relationship ends, and Vivint and the employee must
come to terms on a new employment contract for the following sales season. It is not entirely clear
whether “the date [the employee] ceases to be employed” refers to the termination date under the
then current Employment Agreement—i.e., October 1, 2022—or whether this language refers to
all future termination dates for all subsequent one-year contracts that the employee may enter into.
Because the parties do not raise this issue and because it is not necessary to resolve this question
to rule on Vivint’s motion for a preliminary injunction, the court does not address this ambiguity
in this order.
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