2 3 4 ANDREW M. SPURCHISE, Bar No. 245998 LISAK. HORGAN, Bar No. 267632 LITTLER MENDELSON, P.C. 333 Bush Street 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490 ELECTRON LCALLY FILED Superior Court or Calffomla, County of San Francisco 09/09/2016 5 6 Clerk of the Court Attorneys for Defendant UBER TECHNOLOGIES, INC. BY:ROMY RISK Deputy Clerk 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 SAMUEL WARD SPANGENBERG, an individual, on behalf of himself and all others similarly situated, Plaintiff, 12 13 14 V. UBER TECHNOLOGIES, INC. and DOES 1-50, inclusive, 15 Case No. CGC-16-552156 DECLARATION OF ANDREW WEGLEY IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PLAINTIFF'S PAGA CLAIM PENDING ARBITRATION Reservation No. 09091019-08 16 Date: Time: Dept: 17 Complaint Filed: May 20, 2016 Defendants. October 19, 2016 9:30a.m. 302 18 19 20 21 22 23 24 25 26 27 28 Case No. CGC-16-552156 WEGLEY DECLARATION IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION DocuSign Envelope ID: ODC4BFE9-CE7D-48AC-A3C2-9DCD4F061 01 E 1 I, ANDREW WEGLEY, declare and state: 2 1. 3 ("Uber"), a position I have held since May 2014. I have personal knowledge of the facts contained 4 in this declaration and could and would testify competently thereto if called as a witness. 5 2. Uber is a Delaware corporation, headquartered in San Francisco, California. 6 3. Uber is a technology company that offers a mobile smartphone application to 7 connect riders looking for transportation to independent transportation providers looking for riders 8 (the "Uber App.") Specifically, transportation providers use the App as a source of referrals to 9 customers seeking their services and riders use the App as a way to conveniently request 10 transportation from nearby drivers. 11 transportation providers to facilitate transportation services provided by the transportation providers. 12 The Uber App is available in over 100 cities across the United States. 4. 13 Uber furnishes the Uber App to riders and independent As a Senior Human Resources Business Partner for Uber, I am aware that 14 Uber maintains personnel and other records regarding its employees in the regular course of its 15 business, including personnel files for each of its employees (collectively, the "Personnel Records"). 16 These Personnel Records contain information about Uber's current and former employees, and are 17 prepared by the Uber employees themselves or by other Uber employees (who obtain the 18 information directly from the employees or other company records) who are required to prepare 19 these documents as part of their job functions. Certain documents contained in these Personnel 20 Records (similarly, created or obtained in the regular course of business) include Uber's employment 21 agreements with its employees and/or former employees. As Uber's Senior Human Resources 22 Business Partner, I have personal knowledge that Uber maintains such files and have access to such 23 files. 24 5. Based upon my knowledge and my review of certain Personnel Records, 25 including the personnel file of Plaintiff Ward Spangenberg ("Plaintiff'), Mr. Spangenberg executed 26 an employment agreement, including a dispute resolution agreement, (hereinafter collectively the 27 "Arbitration Agreement") with Uber on February 19, 2015, a true and correct copy of which is 28 attached hereto as Exhibit A . .ITILER MENDELSON, P.C. 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 I am a Senior Human Resources Business Partner for Uber Technologies, Inc. 1. Case No. CGC-16-552156 WEGLEY DECLARATION IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION DocuSign Envelope ID: ODC4BFE9-CE7D-48AC-A3C2-9DCD4F06101 E 1 6. As a Senior Human Resources Business Partner for Uber, I am involved in 2 and have knowledge ofUber's employment offer and employee onboarding process. As part of this 3 process, Plaintiff was provided the Arbitration Agreement for his review. Plaintiff was provided 4 time to review the Arbitration Agreement and was free to ask questions regarding the terms of the 5 Arbitration Agreement, request additional time to review the Arbitration Agreement, or to attempt to 6 negotiate new or different terms. Based on Uber's records and my knowledge, Plaintiff did not 7 express any concerns to Uber about the Arbitration Agreement or raise any questions about it during 8 his onboarding process. 9 7. Based upon my knowledge and my review of Plaintiff's personnel records, on 10 March 9, 2015, Plaintiff commenced employment with Uber as a forensic investigator based out of 11 Uber's San Francisco, California office. In this role, Plaintiff regularly communicated with, sent, 12 and received projects from other members of Uber's Information Security team, who reside and 13 work all over the world. 14 responding to information security issues that occurred nationally and internationally, as well as 15 development and implementation of policies and procedures designed to protect the security of 16 Uber's global technology infrastructure. In addition, Plaintiff's responsibilities included assisting with and 17 18 19 20 I hereby declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed on this~ day of August 2016 in San Francisco, California. 21 22 23 24 Andrew Wegley 25 26 Firmwide: 142389542.1 073208.1194 27 28 .ITTLER MENDELSON, P,C. 333 Bush Street 34th Floor San Francisco, CA 94104 415.433.1940 2. Case No. CGC-16-552156 WEGLEY DECLARATION IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION EXHIBIT A Uber Technologies, Inc. 1455 Market Street, 4th Floor San Francisco, CA 94103 February 17, 2015 Ward Spangenberg Re: EMPLOYMENT AGREEMENT Dear Ward: On behalf ofUber Technologies, Inc., a Delaware corporation (the "Company"), I am pleased to offer you the position of Forensic Investigator. Your employment by the Company shall be governed by the following terms and conditions (this "Agreement"): 1. Duties and Scope of Employment. a. Position. For the term of your employment under this Agreement (your "Employment"), the Company agrees to employ you in the position of Forensic Investigator or in such other position as the Company subsequently may assign to you. You will report to the Company's Information Security Leader, Brian Johnson, or to such other person as the Company subsequently may determine. You will be working out of the Company's office in San Francisco, CA. You will perform the duties and have the responsibilities and authority customarily performed and held by an employee in your position or as otherwise may be assigned or delegated to you by your supervisor. b. Obligations to the Company. During your Employment, you shall devote your full business efforts and time to the Company. During your Employment, without express written permission from the Chief Executive Officer or one of his direct reports, you shall not render services in any capacity to any other person or entity and shall not act as a sole proprietor or partner of any other person or entity or own more than five percent of the stock of any other corporation. Notwithstanding the foregoing, you may serve on corporate, civic or charitable boards or committees, deliver lectures, fulfill speaking engagements, teach at educational institutions, or manage personal investments without such advance written consent, provided that such activities do not individually or in the aggregate interfere with the performance of your duties under this Agreement. You shall comply with the Company's policies and rules, as they may be in effect from time to time during your Employment. c. No Conflicting Obligations. You represent and warrant to the Company that you are under no obligations or commitments, whether contractual or otherwise, that are inconsistent with your obligations under this Agreement. In connection with your Employment, you shall not use or disclose any trade secrets or other proprietary information or intellectual property in which you or any other person has any right, title or interest and your Employment will not infringe or violate the rights of any other person. You represent and warrant to the 1 Company that you have returned all property and confidential information belonging to any prior employer. d. Commencement Date. You shall commence full-time Employment as soon as reasonably practicable and in no event later than March 9th, 2015. 2. Cash and Incentive Compensation. a. Salary. The Company shall pay you as compensation for your services an initial base salary at a gross annual rate of $175,000. Such salary shall be payable in accordance with the Company's standard payroll procedures. The annual compensation specified in this subsection (a), together with any modifications in such compensation that the Company may make from time to time, is referred to in this Agreement as "Base Salary." b. Restricted Stock Units. Subject to the approval of the Company's Board of Directors (the "Board"), the Company shall grant you 34,133 restricted stock units ("RSUs") with respect to shares of the Company's Common Stock. The RSUs shall be granted as soon as reasonably practicable after the date of this Agreement or, if later, the date you commence fulltime Employment. The RSUs will be subject to both a time-based and a performance-based vesting condition as well as to other terms and conditions set forth in the Company's 2013 Stock Plan (the "Stock Plan") and in the Company's standard form of RSU Agreement. For further information about the vesting conditions applicable to the RSUs, please see the RSU Vesting Summary (attached hereto as Attachment B). 3. Vacation/PTO and Employee Benefits. During your Employment, you shall be eligible for paid vacation I paid time off, in accordance with the Company's vacation I paid time off policy, as it may be amended from time to time. During your Employment, you shall be eligible to participate in the employee benefit plans maintained by the Company and generally available to similarly situated employees of the Company, subject in each case to the generally applicable terms and conditions of the plan in question and to the determinations of any person or committee administering such plan. 4. Business Expenses. The Company will reimburse you for your necessary and reasonable business expenses incurred in connection with your duties hereunder upon presentation of an itemized account and appropriate supporting documentation, all in accordance with the Company's generally applicable policies. 5. Termination. a. Employment at Will. Your Employment shall be "at will," meaning that either you or the Company shall be entitled to terminate your Employment at any time and for any reason, with or without Cause. Any contrary representations that may have been made to you shall be superseded by this Agreement. This Agreement shall constitute the full and complete agreement between you and the Company on the "at-will" nature of your Employment, which may only be changed in an express written agreement signed by you and a duly authorized officer of the Company. b. Rights Upon Termination. Except as expressly provided herein, upon the termination of your Employment, you shall only be entitled to the compensation and benefits earned and the reimbursements described in this Agreement for the period preceding the effective date ofthe termination. 6. Pre-Employment Conditions. a. Confidentiality Agreement. Your acceptance of this offer and commencement of employment with the Company is contingent upon the execution, and delivery to an officer of the Company, of the Company's Confidential Information and Invention 2 Assignment Agreement, a copy of which is enclosed for your review and execution (the "Confidentiality Agreement"), prior to or on your Start Date. b. Right to Work. For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. Such documentation must be provided to us within three (3) business days of your Start Date, or our employment relationship with you may be terminated. This offer may be rescinded if you are unable to begin work at Uber within a reasonable amount oftime due to work eligibility issues or export control licensure requirements. 7. Successors. a. Company's Successors. This Agreement shall be binding upon any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company's business and/or assets. For all purposes under this Agreement, the term "Company" shall include any successor to the Company's business or assets that becomes bound by this Agreement. b. Your Successors. This Agreement and all of your rights hereunder shall inure to the benefit of, and be enforceable by, your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. 8. Miscellaneous Provisions. a. Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In your case, mailed notices shall be addressed to you at the home address that you most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary. , b. Modifications and Waivers. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by you and by an authorized officer of the Company (other than you). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time. c. Whole Agreement. No other agreements, representations or understandings (whether oral or written and whether express or implied) which are not expressly set forth in this Agreement have been made or entered into by either party with respect to the subject matter hereof. This Agreement and the Confidentiality Agreement contain the entire understanding of the parties with respect to the subject matter hereof. d. Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law. e. Choice of Law and Severability. This Agreement shall be interpreted in accordance with the laws of the State of California without giving effect to provisions governing the choice of law. If any provision of this Agreement becomes or is deemed invalid, illegal or unenforceable in any applicable jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be deemed amended to the minimum extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision shall be stricken and the remainder of this Agreement shall continue in full force and effect. If any 3 provision of this Agreement is rendered illegal by any present or future statute, law, ordinance or regulation (collectively, the "Law") then that provision shall be curtailed or limited only to the minimum extent necessary to bring the provision into compliance with the Law. All the other terms and provisions of this Agreement shall continue in full force and effect without impairment or limitation. f. Arbitration. As set forth in more detail in the Alternate Dispute Resolution Agreement (attached hereto as Attachment C), You and the company agree to submit to mandatory binding arbitration any and all claims arising out of or related to your employment with the Company and your termination thereof, including but not limited to, claims for unpaid wages, wrongful terminations, torts, stock or RSUs or other ownership interest in the Company and/or discrimination (including harassment) based upon any federal, state or local ordinance, statute, regulation or constitutional provision, except that each party may, at its, his or her option, seek injunctive relief in court related to the improper use, disclosure or misappropriation of a party's proprietary, confidential or trade secret information. All arbitration hearings shall be conducted in San Francisco County, California. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO SUCH CLAIMS. This Agreement does not restrict your right to file administrative claims you may bring before any government agency where, as a matter of law, the parties may not restrict the employee's ability to file such claims (including, but not limited to, the National Labor Relations Board, the Equal Employment Opportunity Commission and the Department of Labor). g. No Assignment. This Agreement and all of your rights and obligations hereunder are personal to you and may not be transferred or assigned by you at any time. The Company may assign its rights under this Agreement to any entity that assumes the Company's obligations hereunder in connection with any sale or transfer of all or a substantial portion of the Company's assets to such entity. h. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [Signature Page Follows] 4 We are all delighted to be able to extend you this offer and look forward to working with you. Please understand that this offer is contingent upon successful completion of your background check investigation. To indicate your acceptance of the Company's offer, please sign and date this letter in the space provided below and return it to me, along with a signed and dated original copy of the Confidentiality Agreement. The Company requests that you begin work in this new position on or before March 9th, 2015. This offer must be accepted on or before February 19, 2015. Please indicate the date (either on or before the aforementioned date) on which you expect to begin work in the space provided below (the "Start Date"). Very truly yours, Uber Technologies, Inc. ~~ By: -----------------------Name: Brian Johnson Title: Information Security Leader ACCEPTED AND AGREED: Ward Spangenberg .5~et. wa.AP!' .5;;a.-./e..,£ey Feb 19, 2015 Date Anticipated Start Date: March 9th, 2015 Attachment A: Confidential Information and Invention Assignment Agreement Attachment B: RSU Vesting Summary Attachment C: Alternate Dispute Resolution Agreement 5 ATTACHMENT A CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (See Attached) ATTACHMENT RSU VESTIN SUMMARY (See Attached) ATTACHMENT ALTERNATE DISPUTE RESOLUTION AGREEMENT {See Attached) DISPUTE RESOLUTION AGREEMENT 1. How This Agreement Applies: This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. This Agreement applies to any dispute arising out of or related to Employee's employment with Uber Technologies, Inc. or one of its affiliates, successor, subsidiaries or parent companies ("Company") or termination of employment and survives after the employment relationship terminates. Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, but not as to the enforceability, revocability or validity of the Agreement or any portion of the Agreement, including the Class Action Waiver described below. Except where this Agreement otherwise provides, this Agreement also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims to the extent permitted by law. Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp ). 2. How Arbitration Proceedings Are Conducted: Except as provided in this Agreement, any controversy or claim covered by this Agreement shall be settled by arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association ("AAA") then in effect. These rules are available at www.adr.org, or you can ask Human Resources for a copy. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. However, in all cases where required by law, the Company will pay the Arbitrator's and arbitration fees. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Agreement. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief. February 20 14 3. Class Action Waiver: You and the Company agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative basis. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any purported class, collective, representative or private attorney general proceeding, including without limitation pending but not certified class actions ("Class Action Waiver"). Disputes regarding the validity and enforceability of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, representative or private attorney general action and (2) a civil court of competent jurisdiction finds all or part of the Class Action Waiver unenforceable, the class, collective, representative and/or private attorney general action must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. Although an Employee will not be retaliated against, disciplined or threatened with discipline as a result of his or her exercising his or her rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collective or representative action in any forum, the Company may lawfully seek enforcement of this Agreement and the Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims. Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration. 4. Enforcement Of This Agreement: This Agreement is the full and complete agreement relating to the formal resolution of employment-related disputes. Except as otherwise expressly stated, in the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable. If the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is deemed to be unenforceable, the Company and Employee agree that this Agreement is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration. AGREED: AGREED: Dated: Feb 19, 2015 Uber Technologies, Inc. Employee [Signature] 1 f By~ f Rya raves VP, Worldwide Operations Samuel Ward Spangenberg Name Printed February 2014 2