RFMD NC INVENTIONS, CONFIDENTIALITY, AND NON-SOLICITATION AGREEMENT
Exhibit 10.4
RFMD NC INVENTIONS, CONFIDENTIALITY, AND
NON-SOLICITATION AGREEMENT
NON-SOLICITATION AGREEMENT
THIS INVENTIONS, CONFIDENTIALITY, AND NONSOLICITATION
AGREEMENT (this “Agreement”), entered into effective the day of 2007, is
by and between RF Micro Devices, Inc., a North Carolina corporation (hereafter referred to as
“Employer”), and the undersigned individual (hereafter referred to as “Employee”).
RECITALS
WHEREAS, Employee has been offered employment by Employer as an employee at will to assist
Employer in its business; and
WHEREAS, Employee acknowledges that the markets for Employer’s products are highly competitive
on both a national and international basis, and to protect the business advantage of Employer,
Employee has agreed to govern Employee’s conduct in accordance with the terms of this Agreement;
and
WHEREAS, the execution of this Agreement is a condition to the offer of employment made by
Employer to Employee;
NOW, THEREFORE, in consideration of the employment of Employee by Employer, the mutual
covenants and agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as
follows:
1. Confidentiality.
(a) Nondisclosure of Proprietary Information. Employee recognizes that Proprietary
Information (as hereinafter defined) that has been created by, discovered by, developed by or
otherwise become known to Employer has a commercial value in Employer’s business. “Proprietary
Information” is information used in the design, development, manufacture or assembly of Employer’s
products or which would be useful to anyone competing or proposing to compete with Employer
including, but not limited to, all inventions, invention records, processes, ideas, data, computer
programs, developments, designs, test results, models, simulations, semiconductor mask layout
drawings, engineering records and reports, production drawings, engineering drawings, board layout
drawings, raw material specifications and lists, product specifications, marketing plans, business
plans, customer lists, budgets, product prices, financial projections, financial statements, new
product plans and other information owned by Employer which is not public information.
“Proprietary Information” also includes similar information to which Employee is provided access
in the course of his or her employment that is owned by customers, suppliers, licensors and other
third parties doing business with Employer which was disclosed to Employer subject to restrictions
on use or further disclosure. At all times, both during the period of the employment by Employer
and after termination of that employment for any reason, Employee agrees to keep in the strictest
confidence and trust all Proprietary Information, and Employee will not use any Proprietary
Information or disclose any Proprietary Information to any person without the prior express
written consent of Employer, except as may be necessary in the ordinary course of performing
Employee’s duties for Employer.
(b) Nondisclosure of Third-Party Information. Employee agrees not to use or disclose
to Employer, or assist in the disclosure to Employer of, confidential information belonging to any
third parties, including any prior employers of Employee. If Employee knows or suspects that any
third-party’s confidential information or trade secrets is being used or disclosed to Employer,
Employee should immediately report such conduct to his or her supervisor or to Employer’s Human
Resources department.
Initial REK
(c) Return of Documents and Property. Upon the termination of Employee’s access
to Employer’s Proprietary Information for any reason, or upon the termination of the employment of
Employee for any reason, Employee will return to Employer all records, apparatus, equipment and
other physical property, whether or not pertaining to Proprietary Information, and all documents,
notes, drawings, specifications, computer programs, data and other materials in any written,
machine-readable or other tangible form and all copies of such materials containing or relating to
any Proprietary Information that Employee may have in his or her possession or control, whether
kept at the place of employment, at Employee’s personal residence or otherwise.
2. Inventions are Property of Employer. Employee agrees that all ideas,
discoveries, developments, designs, improvements, inventions, formulae, processes, techniques,
programs, know-how, data, brand or product identifications (whether or not used by Employer as
trademarks) or other information of possible technical or commercial importance relating to
Employer’s business (“Inventions”) made or conceived or reduced to practice or learned by Employee
alone or with others, during Employee’s access to Employer’s Proprietary Information or during the
employment of Employee by Employer, shall be the sole property of Employer. During Employee’s
employment with Employer, Employee will promptly report to Employer all Inventions made or
conceived or reduced to practice or learned, solely or jointly with others, for the purpose of
permitting Employer to ascertain and to perfect its rights in such Inventions. Employer shall be
the sole owner of all Inventions and all patents, copyrights, trademarks, trade secrets and other
proprietary rights arising from such Inventions. Employee agrees to assign and does hereby assign
to Employer all Inventions that are made or conceived or reduced to practice or learned by
Employee alone, or with others, during Employee’s employment. Employee agrees to assist Employer
in every necessary way to obtain or enforce any patents, copyrights or any proprietary rights
relating to the Inventions and to execute all documents and applications necessary to vest in
Employer full legal title in such Inventions, and Employee agrees to continue this assistance
after the termination of his or her employment with Employer. Furthermore, Employee hereby
designates and appoints Employer and its duly authorized officers and agents as his or her agents
and attorneys-in-fact to execute and file any certificates, applications or documents and to do
all other lawful acts necessary to protect Employer’s rights in the Inventions. Employee expressly
acknowledges that the foregoing power of attorney is coupled with an interest and is therefore
irrevocable and shall survive Employee’s termination, death or incompetency.
3. Prohibition Against Solicitation. In recognition that Employee’s services
rendered to Employer are of a special and unusual character which have a unique value to Employer,
loss of which cannot adequately be compensated by damages in any action at law; in view of the
unique value to Employer of the services of Employee and the Proprietary Information to be
obtained by or disclosed to Employee as an employee of Employer; and as a material inducement to
Employer to employ Employee, Employee covenants and agrees that from the date hereof until the one
year anniversary following the termination of Employee’s employment with Employer for any reason
(the “Restricted Period”), Employee will not, directly or indirectly, on behalf of any person,
firm, partnership, corporation, association or entity:
(a) Call upon any of the customers of Employer who are such at the time of
Employee’s termination for the purpose of soliciting or providing customers to any
Competitive Business
(as hereinafter defined); or
(b) Call upon any of the other employees, consultants or representatives of
Employer who are such at the time of Employee’s termination or at any time during the
Restricted Period
for the purpose of soliciting or inducing or encouraging such employees, consultants or
representatives to
discontinue their relationship with Employer to establish a relationship with Employee or with
any
Competitive Business.
Initial REK
2
For purposes of this Agreement, “Competitive Business” means the business of
designing, developing, manufacturing, assembling or marketing radio frequency integrated
circuit devices.
4. Accounting for Profits. If Employee violates any of Employee’s covenants or
agreements under this Agreement, Employer shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or benefits that Employee directly
or indirectly has realized and may realize as a result of, growing out of or in connection
with any such violation; such remedy shall be in addition to and not in limitation of any
injunctive relief or other rights or remedies that Employer is or may be entitled at law,
in equity or under this Agreement.
5. Reasonableness of Restrictions. Employee has carefully read and considered
the provisions of this Agreement and, having done so, agrees that the restrictions set
forth in this Agreement (including, but not limited to, the time period restriction set
forth in Section 3) are fair and reasonable and are reasonably required for the protection
of the interests of Employer, its shareholders, officers, directors and other employees.
Notwithstanding the foregoing, in the event any part of the covenants set forth in Section
3 shall be held to be invalid or unenforceable, the remaining parts thereof shall
nevertheless continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. In the event that any provision of Section 3 relating
to time period or territory shall be declared by a court of competent jurisdiction to
exceed the maximum time period or territory such court deems reasonable and enforceable,
said time period or territory shall be deemed to become and thereafter be the maximum time
period or territory that such court deems reasonable and enforceable.
6. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto with the respect to the subject matter contained
herein, and supersedes and cancels any and all prior agreements between the parties hereto
relating to the subject matter. The parties hereto acknowledge that no promises, statements
or representations, other than those contained in this Agreement, have been made to induce
any party to enter into this Agreement. The parties hereto confirm that they have each read
this Agreement in its entirety, that they have had the opportunity to consult with legal
counsel, and that they understand the nature and effect of this Agreement. The recitals set
forth above are herein incorporated by reference.
(b) Injunction. In the event of a breach or threatened breach by Employee of
the provisions of this Agreement, Employer shall, in addition to any other rights and
remedies available to it, at law or otherwise, be entitled to an injunction to be issued by
any court of competent jurisdiction enjoining and restraining Employee from committing any
violation or future violation of this Agreement and Employee hereby consents to the
issuance of such injunction.
(c) Assignment. This Agreement is personal to Employee. Employee may not
assign or delegate any of Employee’s rights or obligations hereunder, and any attempted
assignment or delegation shall be null and void. The rights and obligations of Employer
hereunder shall inure to the benefit of and shall be binding upon its successors and
assigns.
(d) Choice of Law. This Agreement shall be subject to and governed by the laws
of the State of North Carolina, without regard to the conflicts of law rules of such State.
(e) Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or estoppel.
No such written waiver shall be deemed a continuing waiver unless specifically stated
therein, and each such waiver shall operate only as to the specific term and condition
waived and shall not constitute a waiver of such terms or conditions for the future or as
to any act other than that specifically waived.
(f) Amendment. This Agreement may not be modified except by an agreement in
writing executed by both of the parties hereto.
REK
3
(g) Severability. The provisions of this Agreement shall be severable
and
the invalidity or unenforceability of any provisions shall not affect the validity or
enforceability of any other provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
| RF MICRO DEVICES, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | VP, HR |
|||
| EMPLOYEE |
||||
| /s/ XXXXXX XXX XXXXXXX | ||||
| (Signature) | ||||
| XXXXXX XXX XXXXXXX (Printed Name) |
||||
Initial REK
4
