Contract
Exhibit 99.2
This
Consultant Confidentiality and Inventions Agreement (the “Agreement”) is
being presented to you as a requirement for you to work with or for Trestle
Acquisition Corp., a Delaware corporation. This is an important legal document
that affects your rights, and you should read it carefully and be sure you
understand it thoroughly before signing. You are referred to in this Agreement
as “you,” and
Trestle Acquisition Corp. is referred to in this Agreement as the “Company.” The
effective date of this Agreement is the date set forth below your
signature.
You are
being asked to sign this Agreement because you have been a Consultant of the
Company’s predecessor and will be an Consultant or independent contractor of the
Company or its subsidiaries. It is
likely that you have been
and/or will be exposed to Confidential Information (as defined below) of the
Company. Like all well-run companies, the Company requires that you sign this
Agreement to protect the legitimate rights of the Company in its intellectual
property.
By
signing this Agreement, you and the Company agree as follows:
1. Definitions.
For the
purpose of this Agreement, the following terms have the following
definitions:
1.1 “Company
Intellectual Property” means
all of the Company’s trademarks (including the goodwill attached thereto),
know-how, copyrights, copyright registrations and applications for registration,
Patents, trade secrets, author’s rights, moral rights, right of publicity, and
contract and licensing rights, and all other intellectual property rights of the
Company as may exist now and/or hereafter come into existence, and all renewals
and extensions thereof, whether registered or not.
1.2 “Confidential
Information” means as
to any Person, any intellectual property or information, including but not
limited to, information
included within or relating to any Inventions and Works,
formulas, patterns, compilations, programs, devices, methods, techniques and
processes, financial information and data, business plans, business strategies,
marketing plans, customer lists, price lists, cost information, information
about Consultants, descriptions of inventions, process descriptions,
descriptions of technical know-how, information and descriptions of new products
and new product development, technical specifications and documentation, and
pending or abandoned patent applications of a party, now known or in possession
of, or hereafter learned or acquired, that derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by other Persons who can obtain economic value
from its disclosure or use. Confidential Information may be written or oral,
expressed in electronic media or otherwise disclosed, and may be tangible or
intangible.
1.3 “Employed” or
“Employment” means,
for purposes of this Agreement only, to be engaged in the performance of
services for or on behalf of the Company or its subsidiaries. The term Employed
is used herein for convenience purposes only and shall not necessarily imply
that the legal relationship of an employer-Consultant exists.
1.4 “Inventions
and Works” means
any work,
invention or creation that
is
devised, developed, designed, discovered or reduced to practice by you at any
time while you are or were Employed by the Company or Trestle (defined in
Section
1.9 below),
including, without limitation any and all (i) compositions or works of
authorship, concepts, algorithms, software, computer programs, designs,
flowcharts, schematics, techniques, know-how, methods, processes, procedures,
improvements, hardware, products, devices, discoveries or inventions, whether or
not patentable or copyrightable, and whether or not reduced to practice; or (ii)
translations,
modifications, derivations, corrections, additions, extensions, upgrades,
improvements, compilations, abridgments, or other form in which you may directly
or indirectly recast, transform or adapt any of the items described in clause
(i) immediately above, or any Company Intellectual Property;
provided, that an
Invention and Work shall not include any work, invention or creation that fully
qualifies under California Labor Code Section 2870, which provides that any
provision in an employment agreement which provides that an Consultant 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 Consultant 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: (1) 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 (2) result from any work performed
by the Consultant for the employer.
1.5 “Materials” means
any product, prototype, sample, model, photograph
or picture, document, instrument, sketch, drawing, design note, recording,
report, plan, proposal, specification, manual, tape, and all reproductions,
copies or facsimiles thereof, or any other tangible item which in whole or in
part contains, embodies or manifests, whether in printed, handwritten, coded,
magnetic, digital or other form, any Confidential Information of the Company or
any Inventions and Works.
1.6 “Patents” means
(i) the patent rights in patents and patent applications, industrial design
registrations, certificates of invention, patent disclosures and the inventions
covered thereby, including, without limitation, the exclusive right to make, use
and sell the subject inventions, (ii) any reexaminations, reissues, renewals or
extensions of any and all of the foregoing patents or patent applications, and
(iii) foreign counterparts of any and all of the foregoing, in each such
case.
1.7 “Person” means
any individual, corporation, partnership, trust, government or regulatory
authority, or other entity.
1.8 “Proprietary
Right” means
any Patent,
copyright, trade
secret, name, xxxx, design, slogan, catch phrase or other trademark, or any
other protected intellectual property right in any Confidential Information of
the Company, Inventions and Works or any Materials.
1.9 “Trestle” means
Trestle Corporation, a Delaware corporation and wholly-owned subsidiary of Med
Diversified, Inc., a Nevada corporation (“Med”), the
assets and certain liabilities of which were acquired and assumed by the Company
in that certain Asset Purchase Agreement dated April 16, 2003 and that certain
Xxxx of Sale and Assignment and Assumption Agreement dated May 20, 2003 by and
between the Company, Trestle and Med. Trestle is engaged in the business of
developing, owning, using, licensing, marketing, and selling on a worldwide
basis a series of microscopy and telemedicine products and services, including
without limitation, (i) MedMicroscopy RT™, MedMicroscopy SL™, MedMicroscopy CL™
and other products developed from the same technology for microscopy
applications, (ii) MedReach™ and other products developed from the same
technology for telemedicine applications, (iii) MedScanner, (iv) Digital Slide,
(v) MedWorkflow, (vi) High Throughput Scanner, (vii) Quality Control Image
Analysis, and (viii) Tox Screen Image Analysis (the “Business”).
2. Ownership
of Inventions and Works.
2.1 As
between you on the one hand, and the Company on the other hand, you agree that
all Confidential Information of the Company and all Inventions and Works,
Materials and Proprietary Rights are the sole and exclusive property of the
Company.
2.2 As
between you on the one hand, and the Company on the other hand, you also
specifically acknowledge and agree that any tangible expression of any
Confidential Information of the Company, Company Intellectual Property,
Inventions and Works, Materials or Proprietary Rights were developed, made or
invented exclusively for the benefit of and are the sole and exclusive property
of the Company or its respective successors and assigns as “works for hire”
under Section 201 of Title 17 of the United States Code.
2.3 In the
event that any Confidential Information of the Company, Inventions and Works,
Materials or Proprietary Rights are deemed not to be a “work for hire” as a
matter of law, you agree to assign, and do hereby irrevocably assign, to the
Company all of your right, title and interest in and to such Confidential
Information of the Company, Inventions and Works, Materials or Proprietary
Rights. You further agree to take any actions, including the execution of
documents or instruments, which the Company may reasonably require to effect
your assignment of rights pursuant to this Section
2.3, and you
hereby constitute and appoint, with full power of substitution and
resubstitution, the Company as your attorney-in-fact to execute and deliver any
documents or instruments which you have agreed to execute and deliver pursuant
to this Section
2.3.
2.4 You also
agree that you will assist the Company in applying for and obtaining both
domestic and foreign patents, as the case may be, on all Confidential
Information of the Company, Inventions and Works, Materials, and Proprietary
Rights that the Company deems to be patentable, and that you will execute all
documents and perform all acts which the Company reasonably deems necessary or
desirable to obtain such patents or otherwise to vest in the Company full and
exclusive right, title and interest in and to the Confidential Information of
the Company, Inventions and Works, Materials, and Proprietary Rights, to protect
the same against infringement by others and otherwise to aid the Company in
connection with any continuations, renewals or reissues of any patents, or in
the conduct of any proceedings or litigation in regard thereto. If there are any
expenses incurred in procuring and protecting the above-described patents, such
expenses will be paid by the Company.
3. Confidentiality.
3.1 You also
agree to protect the Company’s Confidential Information and any Confidential
Information provided to the Company by a third party in confidence, by agreeing
that you will not, at any time from and after the date hereof and throughout
perpetuity, directly or indirectly, disclose, reveal or give access to all or
any portion of any such Confidential Information (including any facilities,
apparatus or equipment which embody or employ all or any portion of the
Confidential Information), to any Person without the written consent of the
Company, except to Persons designated or Employed (i) by the Company or (ii) in
the case of Confidential Information provided to the Company by a third party,
by that third party.
3.2 Without
the prior written consent of the Company, as the case may be, you agree that you
will not, directly or indirectly, use or exploit any Confidential Information of
the Company or any Confidential Information provided to the Company by a third
party in confidence at any time throughout perpetuity for any purpose other than
in connection with your Employment duties and obligations, including without
limitation, using any such Confidential Information to induce or attempt to
induce any Person to cease doing business or not to commence doing business with
the Company, or to solicit or assist in the solicitation of the business of any
customer for any products or services of a third party competing with those
products and services offered and sold by the Company.
3.3 Additionally,
you agree that, upon the earlier of either the written request of the Company,
or upon termination of your Employment, you will deliver to the Company all
Confidential Information of the Company or any Confidential Information provided
to the Company by a third party in confidence that you have in your possession
or control.
4. Disclosure
Requirements.
4.1 In order
to avoid any ambiguity in connection with the creation of any Inventions and
Works, you agree to disclose in writing to the Company complete details on any
work,
invention or creation related
in any manner to the Business that
was
devised, developed, designed, discovered or reduced to practice by you prior to
the time you were Employed by the Company, and any Inventions and Works
that
are devised,
developed, designed, discovered or reduced to practice by you at any time while
you are or have been Employed by the Company. Such disclosure shall be made at
the time you sign this Agreement with respect to any work,
invention or creation that
was
devised, developed, designed, discovered or reduced to practice by you prior to
the time you were Employed by the Company, and promptly upon development, design
or discovery of any Inventions and Works, and shall be disclosed in writing
pursuant to the form attached as Exhibit “A” to this
Agreement, or such other form as the Company, respectively, may from time to
time provide.
4.2 You also
agree to promptly notify the Company of any Patent that is applied for by, or
issued to you or any copyright registration that is filed by you (“Copyright
Registration”). Such
notice shall be in writing on the form attached as Exhibit
“B” to this
Agreement, or on such other form as the Company may from time to time
provide.
5. Covenant
Not to Solicit.
For so
long as you are Employed by the Company and for one year thereafter, you agree
not to solicit or cause to be solicited for employment by you or any third
party, any person who is as of the date of such solicitation or who was within
the 12-month period prior to the date of such solicitation an Consultant of the
Company or any subsidiary or affiliate of the Company.
6. Status.
You agree
that this Agreement does not grant you any rights to be Employed by the Company
and, unless there exists a separate agreement that governs the terms of your
Employment by or services to the Company, your Employment will remain “at will.”
This Agreement will remain in full force and effect notwithstanding your
voluntary or involuntary termination as an Consultant, independent contractor,
and/or your subsequent additional or revised Employment as an Consultant of the
Company.
7. Business
Opportunities.
For so
long as you are Employed by the Company, you will not, without the prior written
consent of the Company (which consent may be withheld by the Company in the
exercise of its absolute discretion), engage, directly or indirectly, in any
business, venture or activity that you are aware or reasonably should be aware
that the Company or any affiliate of the Company is engaged in, intends at any
time to become engaged in, or might become engaged in if offered the
opportunity, or in any other business, venture or activity if the Company
reasonably determines that such activity would adversely affect the business of
the Company or any affiliate thereof or the performance by you of any of your
duties or obligations to the Company. Notwithstanding
the foregoing, nothing contained in this provision will prohibit you from owning
less than 1% of the issued and outstanding securities of a publicly held
entity.
8. Notices.
Any
notice to the Company required or permitted hereunder shall be given in writing
to the Company, either by personal service, overnight courier, or by registered
or certified mail, postage prepaid, duly addressed to the Chairman of the Board
of Directors of the Company at its then principal place of business. Any such
notice to you shall be given in a like manner, and, if mailed, shall be
addressed to you at your home address then shown in the files of the Company.
For the purpose of determining compliance with any time limit herein, a notice,
if sent by mail, shall be deemed given on the date it is so deposited in the
United States mail.
9. Miscellaneous
Provisions.
9.1 Injunctive
Relief. You
agree that in the event of any breach by you of any of the covenants and
agreements set forth in Sections
2, 3, 4, and 5 hereof,
the Company would encounter extreme difficulty in attempting to prove the actual
amount of damages suffered by it as a result of such breach and would not have
adequate remedy at law in such event. You therefore agree that, in addition to
any other remedy available at law or in equity, in the event of such breach, the
Company shall be entitled to seek and receive specific performance and
temporary, preliminary and permanent injunctive relief from violation of any of
those covenants and agreements from any court of competent jurisdiction without
necessity of proving the amount of any actual damage to the Company resulting
from such breach.
9.2 Successors
and Assigns. This
Agreement shall be binding on the parties hereto and their respective successors
and permitted assigns. Your duties, obligations, rights and privileges hereunder
may not be delegated or assigned by you in any manner without the Company’s
prior written consent, which shall be provided or withheld in the Company’s sole
discretion. The benefits hereunder with respect to the rights of the Company may
be assigned by the Company to any other corporation or other business entity
which succeeds to all or substantially all of the business of the Company
through merger, consolidation, corporate reorganization or by acquisition of all
or substantially all of the assets of the Company.
9.3 Severability. If any
provision of this Agreement is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction such provision shall be deemed amended to
conform to the applicable laws of such jurisdiction so as to be valid and
enforceable or, if it cannot be so amended without materially altering the
intention of the parties, it will be stricken, but the validity, legality and
enforceability of such provision shall not in any way be affected or impaired
thereby in any other jurisdiction and the remainder of this Agreement shall
remain in full force and effect.
9.4 Controlling
Law. ALL OF
THE PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA AS APPLIED TO RESIDENTS OF THAT STATE ENTERING INTO
CONTRACTS TO BE PERFORMED SOLELY WITHIN SUCH STATE.
9.5 Waiver. Waiver
by either of the parties of any breach of any provision of this Agreement shall
not operate or be construed as a waiver of any prior or subsequent breach of the
same or any other provision hereof.
9.6 Survival
of Your Obligations. Your
obligations hereunder shall survive the termination of your Employment with the
Company or the rendering of services to the Company, as applicable, regardless
of the reason or cause for such termination.
9.7 Attorneys’
Fees. The
prevailing party in any litigation instituted under this Agreement shall, in
addition to other remedies, be entitled to be reimbursed by the other party for
all expenses of such litigation, including reasonable attorneys’
fees.
9.8 Prior
Employment. So as
to avoid any potential liability of the Company for your prior actions, you
hereby represent and warrant to the Company that, except as otherwise disclosed
to the Company in writing, you are not a party to any confidentiality,
non-disclosure, non-solicitation, non-competition or similar agreement with any
former employer and that the performance of your duties for the Company will not
breach any agreement with, or obligation owed to, a former
employer.
9.9 Notification
of Subsequent Employer. The
Company may, without notifying you, notify any of your subsequent employers of
your rights and obligations under this Agreement.
9.10 Counterparts. This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original. For purposes hereof, a facsimile copy of this Agreement,
including the signature pages hereto, will be deemed to be an
original.
9.11 Entire
Agreement. This
instrument contains the entire agreement of the parties with respect to the
subject matter hereto and into which all prior agreements and negotiations are
merged.
IN
WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed as of the date
hereof.
|
TRESTLE
ACQUISITION CORP.
By:
Name:
Date: |
CONSULTANT:
________________________
By:
Name:
Date:
|
EXHIBIT
A
NOTICE
OF INVENTIONS AND WORKS
Pursuant
to Section
4.1 of that
certain Consultant Confidentiality and Inventions Agreement (the “Agreement”)
between Trestle Acquisition Corp. (the “Company”) and
myself, I hereby disclose full and complete details of the following
work,
invention or creation that
I devised,
developed, designed, discovered or reduced to practice prior to the time I was
Employed (as defined in the Agreement) by the Company, and any Inventions and
Works (as defined in the Agreement) that
I devised,
developed, designed, discovered or reduced to practice while I am or have been
Employed by the Company (I have attached additional sheets if the space provided
herein is insufficient):
I agree
to provide such further information regarding the foregoing as may be requested
by the Company.
Name: __________________________
Date: __________________________
EXHIBIT
B
NOTICE
OF PATENT/COPYRIGHT REGISTRATION
Pursuant
to Section
4.2 of that
certain Consultant Confidentiality and Inventions Agreement (the “Agreement”)
between Trestle Acquisition Corp. (the “Company”) and
myself, I hereby notify the Company that I have applied for or obtained the
following described Patent (as defined in the Agreement) or filed the following
Copyright Registration (as defined in the Agreement):
[Patent
Application. Number: _______] [Filing Date: ________]
[Patent
Number: _______] [Issue Date: ________]
[Copyright
Registration Number: _______]
General
Description of the subject matter of the foregoing:
I agree
to provide such further information regarding such Patent/Copyright Registration
as may be requested by the Company.
Name: __________________________
Date: __________________________
