CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
CONFIDENTIAL
INFORMATION AND
INVENTION
ASSIGNMENT AGREEMENT
This
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (the “Agreement”) is
made between Composite Technology Corporation, a Nevada corporation (the
“Company”) and Xxxx X. Xxxxxx.
In
consideration of my appointment as a director with the Company (which for
purposes of this Agreement shall be deemed to include any subsidiaries or
Affiliates of the Company and for purposes of this Agreement, “Affiliates” shall
mean any person or entity that directly or indirectly controls, is controlled
by
or is under common control with the Company), the receipt of confidential
information while associated with the Company, and other good and valuable
consideration, I, the undersigned individual, agree that:
1. Term
of Agreement.
This
Agreement shall continue in full force and effect for the duration of my
membership as a director of the Company (the “Effective Period”).
2. Confidentiality.
(a) Existence
of Confidential Information.
The
Company is in the legal possession of and/or owns and will develop and/or
acquire Proprietary Information, as defined below, which have value to its
business. This Confidential Information includes not only information disclosed
by the Company to me, but also information developed or learned by me during
the
course of my tenure as a Director with the Company.
(b) Definitions.
“Proprietary Information” is all information in whatever form, tangible or
intangible, pertaining in any manner to the business of the Company, or any
of
its Affiliates, or its employees, customers, consultants or business associates.
All Proprietary Information not generally known outside of the Company’s
organization, and all Proprietary Information so known only through improper
means, shall be deemed “Confidential Information.” By example and without
limiting the foregoing definition, Proprietary and Confidential Information
shall include, but not be limited to:
(i) Formulas,
research and development techniques, processes, trade secrets, computer
programs, software, electronic codes, mask works, inventions, innovations,
patents, patent applications, discoveries, improvements, data, know-how,
formats, test results and research projects;
(ii) information
about costs, profits, markets, sales, contracts and lists of customers and
distributors;
(iii) business,
marketing and strategic plans;
(iv) forecasts,
unpublished financial information, budgets, projections and customer identities,
characteristics and agreements; and
(v) employee
personnel files and compensation information.
Confidential
Information is to be broadly defined, and includes all information that has
or
could have commercial value or other utility in the business in which the
Company is engaged or contemplates engaging, and all information of which
the
unauthorized disclosure could be detrimental to the interests of the Company,
whether or not such information is identified as Confidential Information
by the
Company.
(c) Protection
of Confidential Information.
I will
not, directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any third party, other than in my assigned duties and for
the
benefit of the Company, any of the Company’s Confidential Information, either
during or after my tenure as a Director with the Company.
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(d) Delivery
of Confidential Information.
Upon
request or when my directorship with the Company terminates, I will immediately
deliver to the Company all copies of any and all materials and writings received
from, created for or belonging to the Company including, but not limited
to,
those which relate to or contain Confidential Information.
(e) Location
and Reproduction.
I shall
maintain at my work station and/or any other place under my control only
such
Confidential Information as I have a current “need to know.” I shall return to
the appropriate person or location or otherwise properly dispose of Confidential
Information once that need to know no longer exists. I shall not make copies
of
or otherwise reproduce Confidential Information unless there is a legitimate
business need of the Company for reproduction.
(f) Prior
Actions and Knowledge.
I
represent and warrant that from the time of my first contact with the Company
I
held in strict confidence all Confidential Information and have not disclosed
any Confidential Information, directly or indirectly, to anyone outside the
Company, or used, copied, published or summarized any Confidential Information,
except to the extent otherwise permitted in this Agreement.
(g) Third-Party
Information.
I
acknowledge that the Company has received and in the future will receive
from
third parties the third party’s confidential 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 during the Effective Period
and thereafter, I will hold all such confidential information in the strictest
confidence and not disclose or use it, except as necessary to perform my
obligations hereunder, and as is consistent with the Company’s agreement with
such third parties.
(h) Third
Parties.
I
represent appointment and position as a Director with the Company does not
and
will not breach any agreements with or duties to any employer, former employer
or any other third party. I will not disclose to the Company or use on its
behalf any confidential information belonging to others and I will not bring
onto the premises of the Company any confidential information belonging to
any
such party unless consented to in writing by such party.
3. Proprietary
Rights, Inventions and New Ideas.
(a) Definition.
The
term “Subject Ideas” or “Inventions” includes any and all ideas, processes,
trademarks, service marks, inventions, designs, technologies, computer hardware
or software, original works of authorship, formulas, discoveries, patents,
copyrights, copyrightable works, products, marketing and business ideas,
and all
improvements, know-how, data, rights and claims related to the foregoing,
whether or not patentable, which are conceived, developed or created in whole
or
in part by me during the period I hold a Directorship with the Company and
which: (i) relate to the Company’s current or contemplated business or
activities; (ii) relate to the Company’s actual or demonstrably anticipated
research or development; (iii) result from any work performed by me for the
Company; (iv) involve the use of the Company’s equipment, supplies, facilities
or trade secrets; (v) result from or are suggested by any work done by the
Company or at the Company’s request, or any projects specifically assigned to
me; or (vi) result from my access to any of the Company’s memoranda, notes,
records, drawings, sketches, models, maps, customer lists, research results,
data, formulae, specifications, inventions, processes, equipment or other
materials (collectively, “Company Materials”).
(b) Company
Ownership.
I
hereby assign all right, title and interest in and to all of my Subject Ideas
and Inventions, including but not limited to all registrable and patent rights
which may subsist therein, to the Company. All Subject Ideas and Inventions
shall be considered works made for hire. I shall take all actions deemed
necessary by the Company to protect the Company’s rights therein.
(c) California
Labor Code.
Section
3(b) of this Agreement shall not apply if and to the extent California Labor
Code Section 2870 lawfully prohibits the assignment of rights in such
intellectual property. I acknowledge I understand the limits placed on this
definition by California Labor Code Section 2870, if applicable to me, which
provides:
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“(1)
Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his
or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer’s equipment,
supplies, facilities or trade secret information except for those inventions
that either:
a. Relate
at
the time of conception or reduction to practice of the invention to the
employer’s business, or actual or demonstrably anticipated research or
development of the employer; or
b. Result
from any work performed by the employee for the employer.
2)
To the
extent a provision in an employment agreement purports to require an employee
to
assign an invention otherwise excluded from being required to be assigned
under
subdivision (a), the provision is against the public policy of this state
and is
unenforceable.”
(d) I
understand I bear the full burden of proving to the Company an Invention
qualifies fully under Section 2870. I agree to disclose promptly to the Company
in writing full details of any and all Subject Ideas and
Inventions.
(e) Maintenance
of Records.
I agree
to keep and maintain adequate and current written records of all Subject
Ideas
and Inventions and their development made by me (solely or jointly with others)
during the term of appointment as a Director of the Company. These records
will
be in the form of notes, sketches, drawings and any other format that may
be
specified by the Company. These records will be available to and remain the
sole
property of the Company at all times.
(f) Access.
Because
of the difficulty of establishing when any Subject Ideas or Inventions are
first
conceived by me, or whether they result from my access to Confidential
Information or Company Materials, I agree that any Subject Idea and Invention
shall, among other circumstances, be deemed to have resulted from my access
to
Company Materials if: (i) it grew out of or resulted from my work with the
Company or is related to the business of the Company, and (ii) it is made,
used, sold, exploited or reduced to practice, or an application for patent,
trademark, copyright or other proprietary protection is filed thereon, by
me or
with my significant aid, within one (1) year after termination of the Effective
Period.
(g) Assistance.
I
further agree to assist the Company in every proper way (but at the Company’s
expense) to obtain and from time to time enforce patents, copyrights or other
rights or registrations on said Subject Ideas and Inventions in any and all
countries, and to that end will execute all documents necessary:
(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; and
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(iii) to
cooperate with the Company (but at the Company’s expense) in any enforcement or
infringement proceeding on such letters patent, copyright or other analogous
protection.
(h) Authorization
to Company.
In the
event the Company is unable, after reasonable effort, to secure my signature
on
any patent, copyright or other analogous protection relating to a Subject
Idea
and Invention, whether because of my physical or mental incapacity or for
any
other reason whatsoever, I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agent and attorney-in-fact,
to
act for and on my behalf and stead to execute and file any such application,
applications or other documents and to do all other lawfully permitted acts
to
further the prosecution, issuance and enforcement of letters patent, copyright
or other analogous rights or protections thereon with the same legal force
and
effect as if executed by me. My obligation to assist the Company in obtaining
and enforcing patents and copyrights for Subject Ideas and Inventions in
any and
all countries shall continue beyond the termination of my relationship with
the
Company, but the Company shall compensate me at a reasonable rate after such
termination for time actually spent by me at the Company’s request on such
assistance.
(i) Exhibit.
I
acknowledge that there are no currently existing ideas, processes, inventions,
discoveries, marketing or business ideas or improvements which I desire to
exclude from the operation of this Agreement except for the list set forth
on
Exhibit A, Prior Knowledge and Inventions, to this Agreement. To the best
of my
knowledge, there is no other contract to assign inventions, trademarks,
copyrights, ideas, processes, discoveries or other intellectual property
that is
now in existence between me and any other person (including any business
or
governmental entity).
(j) No
Use
of Name.
I shall
not at any time use the Company’s name or any of the Company trademark(s) or
trade name(s) in any advertising or publicity without the prior written consent
of the Company.
4. Prohibited
Activity.
To
prevent the above-described disclosure, misappropriation and breach, I agree
that during the Effective Period and for a period of one (1) year after
termination of the Effective Period, without the Company’s express written
consent, I shall not, directly or indirectly, (i) employ, solicit for employment
or recommend for employment by any party other than the Company, any person
employed by the Company (or any Affiliate) as an employee or a consultant;
and
(ii) call on, solicit or take away, or attempt to call on, solicit or take
away,
any of the Company’s customers or potential customers on whom I called or with
whom I became acquainted during my Effective Period for any business purpose
that may compete with the Company.
5. Representations
and Warranties.
I
represent and warrant (i) I have no obligations, legal or otherwise,
inconsistent with the terms of this Agreement or with my undertaking a
relationship with the Company; (ii) the performance of the services called
for
by this Agreement do not and will not violate any applicable law, rule or
regulation or any proprietary or other right of any third party; (iii) I
will
not use in the performance of my responsibilities for the Company any materials
or documents of any employer or former employer; and (iv) I have not entered
into or will enter into any agreement (whether oral or written) in conflict
with
this Agreement.
6. Termination
Obligations.
(a) Upon
the
termination of my relationship with the Company or promptly upon the Company’s
request, I shall surrender to the Company all equipment, tangible Proprietary
Information, documents, books, notebooks, records, reports, notes, memoranda,
drawings, sketches, models, maps, contracts, lists, computer disks (and other
computer-generated files and data), any other data and records of any kind,
and
copies thereof (collectively, “Company Records”), created on any medium and
furnished to, obtained by or prepared by myself in the course of or incident
to
my term as a Director, that are in my possession or under my
control.
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(b) My
representations, warranties and obligations contained in this Agreement shall
survive the termination of the Effective Period.
(c) Following
any termination of the Effective Period, I will fully cooperate with the
Company
in all matters relating to my continuing obligations under this
Agreement.
(d) In
the
event that I leave the position as a Director of the Company I hereby grant
consent to notification by the Company to any new employer about my rights
and
obligations under this Agreement.
7. Injunctive
Relief.
I
acknowledge my failure to carry out any obligation under this Agreement,
or a
breach by me of any provision herein, will constitute immediate and irreparable
damage to the Company, which cannot be fully and adequately compensated in
money
damages and which will warrant preliminary and other injunctive relief, an
order
for specific performance and other equitable relief. I further agree no bond
or
other security shall be required in obtaining such equitable relief and I
hereby
consent to the issuance of such injunction and to the ordering of specific
performance. I also understand other action may be taken and remedies enforced
against me.
8. Modification.
No
modification of this Agreement shall be valid unless made in writing and
signed
by both parties.
9. Binding
Effect.
This
Agreement shall be binding upon me, my heirs, executors, assigns and
administrators and is for the benefit of the Company and its successors and
assigns.
10. Governing
Law.
Any
action or proceeding seeking to enforce any provision of, or based on any
right
arising out of, this Agreement may be brought against any of the Parties
only in
the courts of Orange County, in the State of California, or, if it has or
can
acquire jurisdiction, in the appropriate United States District Court for
the
Southern District of California, and each of the Parties consents to such
venue
and to the jurisdiction of such courts (and of the appropriate appellate
courts)
in any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence
may be
served on any Party anywhere in the world.
11. Integration.
This
Agreement sets forth the parties’ mutual rights and obligations with respect to
proprietary information, prohibited competition after the Effective Period
and
intellectual property. It is intended to be the final, complete and exclusive
statement of the terms of the parties’ agreements regarding these subjects. This
Agreement supersedes all other prior and contemporaneous agreements and
statements on these subjects, and it may not be contradicted by evidence
of any
prior or contemporaneous statements or agreements. To the extent that the
practices, policies or procedures of the Company, now or in the future, apply
to
myself and are inconsistent with the terms of this Agreement, the provisions
of
this Agreement shall control unless changed in writing by the
Company.
12. Employment
at Will.
This
Agreement is not an employment agreement. I understand that the Company may
terminate my Directorship or association with it at any time, with or without
cause, subject to the terms of any separate written agreement approved by
the
Board of Directors and executed by a duly authorized officer of the
Company.
13. Construction.
This
Agreement shall be construed as a whole, according to its fair meaning, and
not
in favor of or against any party. By way of example and not limitation, this
Agreement shall not be construed against the party responsible for any language
in this Agreement. The headings of the paragraphs hereof are inserted for
convenience only, and do not constitute part of and shall not be used to
interpret this Agreement.
14. Attorneys’
Fees.
Should
either I or the Company, or any heir, personal representative, successor
or
permitted assign of either party, resort to legal proceedings to enforce
this
Agreement, the prevailing party (as defined in California statutory law)
in such
legal proceeding shall be awarded, in addition to such other relief as may
be
granted, attorneys’ fees and costs incurred in connection with such
proceeding.
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15. Severability.
If any
term, provision, covenant or condition of this Agreement, or the application
thereof to any person, place or circumstance, shall be held to be invalid,
unenforceable or void, the remainder of this Agreement and such term, provision,
covenant or condition as applied to other persons, places and circumstances
shall remain in full force and effect.
16. Rights
Cumulative.
The
rights and remedies provided by this Agreement are cumulative, and the exercise
of any right or remedy by either the Company or me (or by that party’s
successor), whether pursuant hereto, to any other agreement, or to law, shall
not preclude or waive that party’s right to exercise any or all other rights and
remedies. This Agreement will inure to the benefit of the Company and its
successors and assigns.
17. Nonwaiver.
The
failure of either the Company or me, whether purposeful or otherwise, to
exercise in any instance any right, power or privilege under this Agreement
or
under law shall not constitute a waiver of any other right, power or privilege,
nor of the same right, power or privilege in any other instance. Any waiver
by
the Company or by me must be in writing and signed by either myself, if I
am
seeking to waive any of my rights under this Agreement, or by an officer
of the
Company (other than me) or some other person duly authorized by the
Company.
18. Notices.
Any
notice, request, consent or approval required or permitted to be given under
this Agreement or pursuant to law shall be sufficient if it is in writing,
and
if and when it is hand delivered or sent by regular mail, with postage prepaid,
to my residence (as noted in the Company’s records), or to the Company’s
principal office, as the case may be.
19. Date
of Effectiveness.
This
Agreement shall be deemed effective as of the date of my nomination to the
Board
of Directors of the Company.
20. Agreement
to Perform Necessary Acts.
I agree
to perform any further acts and execute and deliver any documents that may
be
reasonably necessary to carry out the provisions of this Agreement.
21. Assignment.
This
Agreement may not be assigned without the Company’s prior written
consent.
22. Compliance
with Law.
I agree
to abide by all federal, state and local laws, ordinances and regulations.
23. Survival.
Section
2 (b), (c) (d), Section 3 (g), (h) (j), and Sections 4, 7, 10, 14 and 20
shall
survive the expiration or termination of this Agreement.
24. Acknowledgment.
I
acknowledge that I have had the opportunity to consult legal counsel in regard
to this Agreement, that I have read and understand this Agreement, that I
am
fully aware of its legal effect, and that I have entered into it freely and
voluntarily and based on my own judgment and not on any representations or
promises other than those contained in this Agreement.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set
forth below.
Dated:
October 31, 2007
Xxxx
X. Xxxxxx
_________________
Xxxx
X.
Xxxxxx
Xxxxxxx,
XX 00000
Composite
Technology Corporation
a
Nevada
corporation
By:
______________________________
Name:______Benton
H Wilcoxon_______
Title:_______CEO__________________
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EXHIBIT
A
PRIOR
KNOWLEDGE AND INVENTIONS
|
1.
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Except as set forth below, I acknowledge that
certain
inventions which I may conceive or first actually reduce to practice
after
I am appointed a Director of the Company shall be the sole property
of the
Company. The following are those inventions that I own at this
time (if
none, so state):
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|
2.
|
Except
as set forth below, I acknowledge that I have no other current
or prior
agreements, relationships or commitments that conflict with my
relationship with the Company under my Confidential Information
and
Invention Assignment Agreement (if none, so state):
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|
3.
|
I
acknowledge and agree that I will not use any proprietary information
or
trade secrets belonging to other persons or entities, including
former
employers, in my work for the Company. I further certify that I
returned
all property and confidential information belonging to all prior
employers.
|
| Dated: _______November 1, 1007 | __________________________ |
|
Xxxx X. Xxxxxx
Xxxxxxx,
XX 00000
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