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Exhibit 10.21
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
Intending to be legally bound, I hereby agree with Demeter Biotechnologies, Ltd.
(the "Company"), as follows:
1. I will not at any time, whether during or after the termination of
my employment, reveal to any person or entity any of the trade secrets or
confidential information concerning the technology, intellectual property or
licensed information owned by, used by or licensed to the Company (hereinafter,
"Proprietary Information") or of any third party which the Company is under
obligation to keep confidential (including, without limitation, trade secrets or
confidential information respecting inventions, products, designs, methods,
know-how, techniques, business plans, systems, processes, software programs,
works of authorship, customer lists, projects, plans and proposals), except as
may be required in the ordinary course of performing my duties as an employee of
the Company, and I shall keep secret all such Proprietary Information entrusted
to me and shall not use or attempt to use any such Proprietary Information in
any manner which may injure or cause loss, whether directly or indirectly, to
the Company.
Furthermore, I agree that during my employment I shall not
make, use or permit to be used for my own benefit or for the benefit of any
third party any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to the Proprietary Information, whether now possessed by the
Company or hereafter developed during my employment with the Company. I further
agree that I shall not, after the termination of my employment, use or permit to
be used any such notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials
related to or concerning the Proprietary Information, it being agreed that all
of the foregoing shall be and remain the sole and exclusive property of the
Company and that immediately upon the termination of my employment I shall
deliver all of the foregoing, and all copies thereof, to the Company, at its
main office.
My obligations limiting disclosure of the Company's
Proprietary Information and use of the Company's materials as contemplated in
this Section 1 shall not apply to any such information or materials which:
(i) is now or hereafter becomes, through no act or failure to
act on my part, generally known in the Company's industry;
(ii) is information which the Company and I mutually agree to
release from the terms of this Agreement; or
(iii) is disclosed pursuant to judicial order or government
regulation; provided, however, that I shall, at least thirty days prior
to any disclosure pursuant to this subsection (iii), notify the Company
of the contents of such disclosure, and upon the
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request of the Company, shall consult with the Company to use best
efforts to limit and restrict access to such disclosure.
2. If at any time or times during my employment, I shall (whether
before or after the execution of this agreement and either alone or with others)
make, discover or reduce to practice any invention, modification, discovery,
design, development, improvement, process, software program, work of authorship,
documentation, formula, data, technique, know-how, secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright or similar statutes or subject to analogous
protection) (herein called "Developments") that (a) relates to the then current
business of the Company or any of the products or services being developed,
manufactured or sold by the Company, (b) results from tasks assigned me by the
Company or (c) results from the use of premises or personal property (whether
tangible or intangible) owned, leased, licensed or contracted for by the
Company, or (d) relates in any manner to the Proprietary Information, such
Developments and the benefits thereof shall immediately become the sole and
absolute property of the Company and its assigns, and I shall promptly disclose
to the Company (or any persons designated by it) each such Development and
hereby assign any rights I may have or acquire in the Developments and benefits
and/or rights resulting therefrom to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and without
publishing the same, all available information relating thereto (with all
necessary plans and models) to the Company.
Upon disclosure of each Development to the Company, I will,
during my employment and at any time thereafter, at the request and cost of the
Company, sign, execute, make and do all such deeds, documents, acts and things
as the Company and its duly authorized agents may reasonably require:
(i) to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights
or other analogous protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or other
analogous protection; or
(iii) to, in any other manner requested by the Company,
acknowledge that such Developments are Proprietary Information of the
Company.
3. In the event the Company is unable, after all diligent effort, to
secure my signature on any letters patent, copyright, acknowledgment or other
analogous protection relating to a Development, whether because of my physical
or mental incapacity or for any other reason whatsoever, I hereby irrevocably
designate and appoint the Company through its duly authorized president as my
agent and attorney-in-fact, to act for and in my behalf to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous intellectual property protection thereon with the same legal force and
effect as if executed.
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4. For a period of one (1) year immediately following the voluntary or
involuntary termination of my employment with the Company for any reason
whatsoever, I will not within the United States:
(a) solicit any customers or prospects of the Company for
products or services that compete with those of the Company;
(b) solicit or recruit any employees or ex-employees of the
Company unless they have ceased to be employed for at least six (6) months; or
(c) directly or indirectly engage, whether as an employee,
consultant, partner, owner, agent, stockholder, officer, director, or other
representative, in any business which competes with the Company's business;
provided however, I will be allowed to purchase or own stock in a publicly held
corporation if my holdings do not exceed one percent (1%) of the outstanding
capital stock of such corporation.
5. I agree that any breach of this Agreement by me will cause
irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies at law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of my obligations hereunder.
6. I understand that this Agreement does not create an obligation on
the Company or any other person or entity to continue my employment.
7. I represent that my performance of all of the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence Proprietary Information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.
8. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof.
9. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, activity, subject or
otherwise so as to be unenforceable at law, such provision or provisions shall
be construed by the appropriate judicial body by limiting or reducing it or them
so as to be enforceable to the maximum extent compatible with the applicable law
as it shall then appear.
10. My obligations under this Agreement shall survive the termination
of my employment regardless of the manner of such termination and shall be
binding upon my heirs, executors, administrators and legal representatives.
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11. The Company shall have the right to assign this Agreement to its
successors and assigns, and all covenants and agreements hereunder shall inure
to the benefit of and be enforceable by said successors or assigns.
12. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
Dated:________________________ ________________________
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