EXHIBIT 10.12
NEUROMETRIX, INC.
CONFIDENTIALITY & NON-COMPETE AGREEMENT
In consideration of and as a condition to my employment on an at-will basis by
NeuroMetrix, Inc. (the "Company"), the granting of shares of common, no par
value stock of the Company, and the compensation now and hereafter paid to me by
the Company and other good and valuable consideration, the sufficiency of which
I hereby acknowledge, I hereby execute this Confidentiality & Non-Compete
Agreement (the "Agreement") and agree to the following:
1. CONFIDENTIAL INFORMATION.
a) COMPANY INFORMATION. I agree at all times during the term of my
employment and thereafter to hold in strictest confidence, and not
to use, except for the benefit of the Company, or to disclose to any
person, firm or corporation without the prior written authorization
of a duly authorized officer of the Company, any Confidential
Information of the Company. I understand that "Confidential
Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to,
research and development information, product plans, products,
services, customer lists and customers, Work Product (as defined
below), suppliers, software developments, inventions, processes,
formulas, technology, designs, drawings, engineering information,
hardware configuration information, marketing information, costs,
pricing, finances or other business information disclosed to me by
the Company either directly or indirectly in writing, orally or by
drawings or inspection of parts or equipment either before or after
the commencement of my employment. I further agree that all
Confidential Information shall at all times remain the property of
the Company. I understand that Confidential Information does not
include any of the foregoing items which has become publicly known
or made generally available through no wrongful act of mine.
b) THIRD-PARTY INFORMATION. I recognize that the Company has received
and in the future will receive from third parties their confidential
or proprietary 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. I agree to hold all such
confidential or proprietary information in the strictest confidence
and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out my work for the Company
consistent with the Company's agreement with such third party.
2. WORK PRODUCT.
a) ASSIGNMENT OF WORK PRODUCT. I agree that I will promptly make full
written disclosure to the Company and will hold in trust for the
sole right and benefit of the Company, and I hereby assign to the
Company, or its designee, all my right, title and interest in and to
any and all inventions, original works of authorship, developments,
concepts, improvements or trade secrets, of whatever nature and
whether or not patentable or registrable under copyright or similar
laws, which I may solely or jointly with others conceive or develop
or reduce to practice, or cause to be conceived or developed or
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reduced to practice, during the period of time I am in the employ of
the Company which relates to the business of the Company or to the
Company's anticipated business as of the end of my employment
(collectively referred to as "Work Product"); and I further agree
that the foregoing shall also apply to Work Product which is
conceived, developed, or reduced to practice during a period of one
(1) year after the end of my employment. Without limiting the
foregoing, I further acknowledge that all original works of
authorship which are made my me (solely or jointly with others)
within the scope of my employment and which are protectable by
copyright are "works made for hire", as that term is defined in the
United States Copyright Act.
b) MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and
current written records of all Work Product made by me (solely or
jointly with others) during the term of my employment by the
Company. The records will be in form of notes, sketches, drawings,
and any other format that may be specified by the Company. The
records will be available to and remain the sole property of the
Company at all times.
c) PATENT AND COPYRIGHT REGISTRATIONS. I agree to assist the Company,
or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Work Product and any copyrights,
patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the disclosure
to the Company of all pertinent information and data with respect
thereto and the execution of all applications, specifications,
oaths, assignments and all other instruments which the Company shall
deem necessary in order to apply for and obtain such rights and in
order to assign and convey to the Company, its successors, assigns
and nominees to sole and exclusive rights, title and interest in and
to such Work Product, and any copyright, patents, mask work rights
or other intellectual property rights relating thereto. This
provision shall survive the termination of my employment by the
Company, whether with or without cause.
3. RETURNING COMPANY PROPERTY. I agree that, at any time upon request of the
Company, and in any event at the time of the termination of my employment
by the Company, I will deliver to the Company (and will not keep in my
possession or deliver to anyone else) any and all devices, records, data,
notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any of the aforementioned items, containing Confidential
Information or otherwise belonging to the Company, its successors or
assigns, whether prepared by me or supplied to me by the Company.
4. CONFLICTS.
a) CONFLICTING EMPLOYMENT. I agree that, during the term of my
employment by the Company, I will not engage in any other
employment, occupation, consulting or other business activity
related to the business in which the Company is now involved or
becomes involved during the term of my employment, nor will I engage
in any other activities that conflict with my obligations to the
Company.
NO RESTRICTIONS. I am subject to no contractual or other restriction
or obligation which will in any way limit my activities on behalf of
the Company. I hereby represent and
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warrant to the Company that I do not claim rights in, or otherwise
exclude from this Agreement, any Work Product (as defined above).
5. COVENANT AGAINST COMPETITION.
a) For the purposes of this Section:
i) "Competing Product" means any product, process, or service of
any person or organization other than the Company, in
existence or under development, (A) which is identical to,
substantially the same as, or an adequate substitute for any
product, process, or service of the Company, in existence or
under development, on which I work during the time of my
employment by the Company or about which I acquire
Confidential Information, and (B) which is (or could
reasonably be anticipated to be) marketed or distributed in
such a manner and in such a geographic area as to actually
compete with such product, process or services of the Company.
ii) "Competing Organization" means any person or organization,
including myself, engaged in, or about to become engaged in,
research on or the acquisition, development, production,
distribution, marketing, or providing of a Competing Product.
b) As a material inducement to the Company to employ me, and in order
to protect the Company's Confidential Information and good will, I
agree to the following stipulations:
i) For a period of twelve (12) months after termination of my
employment by the Company, whether with or without cause, I
will not directly or indirectly solicit or divert or accept
business relating in any manner to Competing Products or to
products, processes or services of the Company from any of the
customers or accounts of the Company with which I had any
contact as a result of my employment.
ii) For a period of twelve (12) months after termination of my
employment by the Company or its affiliates for any reason,
whether with or without cause, I will not render services,
directly or indirectly, as an employee, consultant or
otherwise, to any Competing Organization in connection with
research on or the acquisition, development, production,
distribution, marketing, or production of any Competing
Product.
iii) For a period of twelve (12) months after termination of my
employment by the Company, whether with or without cause, I
will not directly or indirectly solicit or take away, or
attempt to solicit or take away, employees of the Company,
either for my own business or for any other person or entity.
6. ENFORCEABILITY AND SEVERABILITY. In the event that any provision of this
Agreement shall be determined to be unenforceable by any court of competent
jurisdiction by reason of its extending for too great a period of time or
over too large a geographic area or over too great a
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range of activities, it shall be interpreted to extend only over the
maximum period of time, geographic area or range of activities as to which
it may be enforceable.
If any provision of this Agreement shall be determined to be invalid,
illegal or otherwise unenforceable by any court of competent jurisdiction,
the validity, legality and enforceability of the other provisions of this
Agreement shall not be affected thereby. Any invalid, illegal or
unenforceable provision of this Agreement shall be severable, and after any
such severance, all other provisions hereof shall remain in full force and
effect.
7. BREACH.
a) EQUITABLE REMEDIES. I hereby expressly acknowledge that any breach
or threatened breach of any of the terms and/or conditions set forth
in this Agreement will result in substantial, continuing and
irreparable injury to the Company. Therefore, I hereby agree that,
in addition to any other remedy that may be available to the
Company, the Company shall be entitled to injunctive or other
equitable relief by a court of appropriate jurisdiction in the event
of breach or threatened breach of the terms of this Agreement.
b) TOLLING. If any provisions of this Agreement are violated, then the
time limitations set forth in this Agreement shall be extended for a
period of time equal to the period of time during which such breach
occurs, and, in the event the Company is required to seek relief
from such breach before any court, board or other tribunal, then the
time limitation shall be extended for a period of time equal to the
pendency of such proceedings, including all appeals.
8. GENERAL PROVISIONS.
a) ARBITRATION OF DISPUTES. Any dispute arising out of this Agreement,
my employment with the Company or termination therefrom, or any
other relations with the Company, whether sounding in tort or
contract, by statute or otherwise, shall be settled by arbitration
in Boston, Massachusetts, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association before a
single Arbitrator who shall have experience in the area of the
matter in dispute. The Arbitrator may grant relief in the nature of
injunctions (other than reinstatement) or other relief in such
dispute or controversy. The decision of the arbitrator shall be
final, conclusive and binding on the parties. Judgment may be
entered on the Arbitrator's decision in any court having
jurisdiction. The Company and I shall each pay one-half of the cost
and expenses of such arbitration, and each party shall separately
pay its or his/her own counsel fees and other costs in connection
with the arbitration.
b) ENTIRE AGREEMENT. This Agreement supersedes all previous agreements,
written or oral, between the Company and me relating to the subject
matter of this Agreement, sets forth the entire agreement and
understanding between the Company and me relating to the subject
matter herein and merges all prior discussions between us with
respect hereto. No modification of or amendment to this Agreement,
nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the party to be charged. Any subsequent
change or changes in my duties, job title or compensation will not
affect the validity or scope of this Agreement.
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c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
the Company and its legal representatives, successors and assigns,
and shall be binding upon me and my heirs, legal representatives,
successors and assigns.
d) GOVERNING LAW. This Agreement will be governed by the laws of the
Commonwealth of Massachusetts, without regard to conflicts of law
principles.
e) HEADINGS. The headings in this Agreement are for convenience of
reference only, and they shall not limit or otherwise affect the
interpretation of any term or provision hereof.
I ACKNOWLEDGE THAT BEFORE PLACING MY SIGNATURE HEREUNDER, I HAVE READ ALL OF THE
PROVISIONS OF THIS AGREEMENT AND HAVE RECEIVED A COPY HEREOF TODAY.
Executed as a document under seal effective as of June 28, 2002.
Signed:
/s/ Xxxx X. Xxxxxxx
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For NeuroMetrix, Inc.
By: /s/ Xxxx X. Xxxxxx
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Authorized Signature
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