Exhibit 10.4
MYMETICS CORPORATION
EMPLOYEE PROPRIETARY INFORMATION,
INVENTIONS AND NON-COMPETITION AGREEMENT
In consideration of my employment or continued employment by Mymetics
Corporation (the "Company"), and the compensation now and hereafter paid to me,
I hereby agree as follows:
1. NONDISCLOSURE.
1.1 Recognition of Company's Rights; Nondisclosure. At all times during my
employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns. I have been informed and acknowledge that the unauthorized taking of
the Company's trade secrets may subject me to civil and/or criminal penalties.
1.2 Proprietary Information. The term "Proprietary Information" shall mean
any and all confidential and/or proprietary knowledge, data or information of
the Company. By way of illustration but not limitation, "Proprietary
Information" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information which is generally known in the trade or industry, which
is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.
1.3 Third Party Information. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During
my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished
documents or any property belonging to any former employer or any other person
to whom I have an obligation of confidentiality unless consented to in writing
by that former employer or person. I will use in the performance of my duties
only information which is generally known and used by persons with training and
experience comparable to my own, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided or
developed by the Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all trade
secret, patent, copyright, mask work and other intellectual property rights or
"moral rights" throughout the world. "Moral rights" refers to any rights to
claim authorship of an Invention or to object to or prevent the modification of
any Invention, or to withdraw from circulation or control the publication or
distribution of any Invention, and any similar right, existing under judicial or
statutory law of any country in the world, or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a "moral
right."
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I
made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit 1 (Previous Inventions) attached hereto a complete list of
all Inventions that I have, alone or jointly with others, conceived, developed
or reduced to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for
each such invention, a listing of the party(ies) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that reason. A
space is provided on Exhibit 1 for such purpose. If no such disclosure is
attached, I represent that there are no Prior Inventions. If, in the course of
my employment with the Company, I incorporate a Prior Invention into a Company
product, process or machine, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with
rights to sublicense through multiple tiers of sublicensees) to make, have made,
modify, use and sell such Prior Invention. Notwithstanding the foregoing, I
agree that I will not incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior written
consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "Company Inventions."
2.4 Unassigned Inventions. I recognize that this Agreement will not be
deemed to require assignment of any invention that was developed entirely on my
own time without using the Company's equipment, supplies, facilities, or trade
secrets and neither related to the Company's actual or anticipated business,
research or development, nor resulted from work performed by me for the Company.
2.5 Obligation to Keep Company Informed. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. The Company will keep in confidence and will not use for any
purpose or disclose to third parties without my consent any confidential
information disclosed in writing to the Company pursuant to this Agreement.
2.6 Government or Third Party. I also agree to assign all my right, title
and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 Works for Hire. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in every
proper way to obtain, and from time to time enforce, United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. To
that end I will execute, verify and deliver such documents and perform such
other acts (including appearances as a witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining
and enforcing such Proprietary Rights and the assignment thereof. In addition, I
will execute, verify and deliver assignments of such Proprietary Rights to the
Company or its designee. My obligation to assist the Company with respect to
Proprietary Rights relating to such Company Inventions in any and all countries
shall continue beyond the termination of my employment, but the Company shall
compensate me at a reasonable rate after my termination for the time actually
spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the actions
specified in the preceding paragraph, I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agent and attorney
in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all times.
4. DUTY OF LOYALTY DURING EMPLOYMENT. I understand that my employment with the
Company requires my full attention and effort. I agree that during the period of
my employment by the Company I will not, without the Company's express written
consent, engage in any employment or business activity other than for the
Company, including but not limited to employment or business activity which is
competitive with, or would otherwise conflict with, my employment by the
Company.
5. NO SOLICITATION OF EMPLOYEES, CONSULTANTS, CONTRACTORS OR CUSTOMERS. I agree
that for the period of my employment by the Company and for twelve (12) months
after the date my employment by the Company ends for any reason (including but
not limited to voluntary termination by me or involuntary termination by the
Company) other than a termination by the Company without Cause as that term is
defined in my Employment Agreement with the Company, I will not, either directly
or through others, (i) solicit or attempt to solicit any employee, independent
contractor or consultant of the Company to become an employee, consultant or
independent contractor to or for any other person or entity, and (ii) solicit
any customers of the Company with whom I had contact or whose identity I learned
as a result of my employment with the Company.
The parties agree that for purposes of this Agreement, a customer is any
person or entity to which the Company has provided goods or services at any time
during the period commencing six (6) months prior to my employment with the
Company and ending on the date my employment with the Company ends.
6. NON-COMPETE PROVISION. I agree that for the period of my employment with the
Company, and for the period of one (1) year after the later of (i) the date my
employment ends for any reason (including but not limited to voluntary
termination by me or involuntary termination by the Company) other than a
termination by the Company without Cause as that term is defined in my
Employment with the Company, or (ii) the date a court of competent jurisdiction
enters an order enforcing this provision, I will not provide services, similar
to those I provided to the Company, to any person or entity in competition with
the Company within the United States of America and Europe. I acknowledge that
this non-compete provision is limited to the types of activities and services I
provided in my employment with the Company. The Company currently specializes in
research and development of human and animal vaccines and therapies in the field
of retroviral and viral autoimmune diseases, provided, however, the parties
acknowledge that this may change as the Company develops. Therefore, the parties
agree that a person or entity is in competition with the Company if it provides
services or goods similar to those provided by the Company at the time my
employment with the Company ends.
7. NO CONFLICTING AGREEMENT OR OBLIGATION. I represent that my performance of
all the terms of this Agreement and as an employee of the Company does not and
will not breach any agreement or obligation of any kind made prior to my
employment by the Company, including agreements or obligations I may have with
prior employers or entities for which I have provided services. I have not
entered into, and I agree I will not enter into, any agreement or obligation
either written or oral in conflict herewith.
8. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I further agree that any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement.
9. LEGAL AND EQUITABLE REMEDIES. I recognize that in the course of employment
with the Company, I will have access to Proprietary Information, to Third Party
Information, and to employees, consultants, contractors, clients, and customers
of the Company. I also recognize that the services I will be employed to provide
are personal and unique. I understand that because of this the Company may
sustain irreparable injury if I violate this Agreement. In order to limit or
prevent such
irreparable injury, the Company shall have the right to enforce this Agreement
and any of its provisions by injunction, specific performance or other equitable
relief, without bond and without prejudice to any other rights and remedies that
the Company may have for a breach of this Agreement.
10. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified in the signature blocks below or at
such other address as the party shall specify in writing. Such notice shall be
deemed given upon personal delivery to the appropriate address or if sent by
certified or registered mail, three (3) days after the date of mailing.
11. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the
Company, I authorize the Company to provide notice of my rights and obligations
under this Agreement to my subsequent employer and to any other entity or person
to whom I provide services.
12. GENERAL PROVISIONS.
12.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will
be governed by and construed according to the laws of the State of Delaware,
without regard to its conflict of laws principles. I hereby expressly consent to
the personal jurisdiction of the state and federal courts for Delaware in any
lawsuit filed there against me by Company arising from or related to this
Agreement.
12.2 Severability. In case any one or more of the provisions, subsections,
or sentences contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. Moreover, if any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
12.3 Successors and Assigns. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns.
12.4 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
12.5 Waiver. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
12.6 Entire Agreement. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously employed,
or am in the future employed, by the Company as a consultant if no other
agreement governs nondisclosure and assignment of inventions during such period.
This Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior
agreements or
discussions between us on this subject matter. No modification of or amendment
to this Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing and signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: July 1, 2006.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated:
(Signature)
(Printed Name)
____________________________________________
(Address)
ACCEPTED AND AGREED TO:
MYMETICS CORPORATION, a Delaware corporation
By:
Title:
Dated:
Address:14, xxx xx xx Xxxxxxxxxx,0000 Nyon, Switzerland
EXHIBIT 1
PREVIOUS INVENTIONS
TO: MYMETICS COPORATION.
FROM:
DATE:
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list of all
inventions or improvements relevant to the subject matter of my employment by
Mymetics Corporation (the "Company") that have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
the Company:
No inventions or improvements.
See below:
Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure
under Section 1 above with respect to inventions or improvements generally
listed below, the proprietary rights and duty of confidentiality with respect to
which I owe to the following party(ies):
Invention or Improvement Party(ies)
Relationship
1.
2.
3.
Additional sheets attached.
