EXHIBIT 10.8
CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT
In consideration of my employment by Phytera, Inc., a Delaware corporation
(the "Company"), I hereby agree as follows:
1. I will make full and prompt disclosure to the Company of all
inventions, improvements, modifications, discoveries, methods, Biological
Materials (as defined below) and developments (all of which are collectively
termed "developments" hereinafter), whether patentable or not, made or conceived
by me or under my direction during my employment, whether or not made or
conceived during normal working hours or on the premises of the Company. I do
not have any developments other than those I have already disclosed to you on
Exhibit B pursuant to Section 12. As used herein, "Biological Materials" shall
---------
include, without limitation, any and all reagents, substances, chemical
compounds, subcellular constituents, cells or cell lines, organisms and progeny,
mutants, derivatives or replications thereof or therefrom.
2. I agree that all developments covered by Paragraph 1 shall be the sole
property of the Company and its assigns, and the Company and its assigns shall
be the sole owner of all patents and other rights in connection therewith. I
hereby assign to the Company any rights I may have or acquire in all
developments. I further agree as to all developments to assist the Company in
every proper way (but at the Company's expense) to obtain and from time to time
enforce proprietary protection (including copyrights, reproduction rights and
patents) on developments in any and all countries, and to that end I will
execute all documents for use in applying for and obtaining such proprietary
protection thereon and enforcing same, as the Company may desire, together with
any assignments thereof to the Company or persons designated by it, and I hereby
appoint the Company as my attorney to execute and deliver any such documents or
assignments on my behalf in the event I fail or refuse to execute and deliver
any such documents or assignments requested by the Company. My obligation to
assist the Company in obtaining and enforcing patents for developments in any
and all countries shall continue beyond termination of my employment, 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 understand that this Paragraph 2 does not apply to developments (a) for
which no equipment, supplies, facilities or trade secret information of the
Company were used, (b) which were developed entirely on my own time, (c) which
do not relate (i) to the business of the Company or (ii) to the Company's actual
or demonstrably anticipated research or development, and (d) which do not result
from any work performed by me for the Company.
3. I hereby represent that, to the best of my knowledge, I have no present
obligation to assign to any former employer or any other person, corporation or
firm, any developments covered by Paragraph 2. I represent that my performance
of all 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.
4. I understand as part of the consideration for the offer of employment
extended to me by the Company and of my employment or continued employment by
the Company, that I have not brought and will not bring with me to the Company
or use in the performance of my responsibilities at the Company any materials or
documents of a former employer which are not generally available to the public,
unless I have obtained written authorization from the former employer for their
possession and use. Accordingly, this is to advise the Company that the only
materials or documents of a former employer which are not generally available to
the public that I have brought or will bring to the Company or have used or will
use in my employment are identified on Exhibit A , and, as to each such item, I
----------
represent that I have obtained prior to the effective date of my employment with
the Company written authorization for their possession and use in my employment
with the Company.
5. During the course of my employment by the Company, I may learn of the
Company's confidential information or confidential information entrusted to the
Company by other persons, corporations, or firms. The Company's confidential
information includes matters not generally known outside the Company, such as
developments relating to existing and future products and services marketed or
used by the Company and data relating to the general business operations of the
Company (e.g., concerning sales, costs, profits, organizations, customer lists,
pricing methods, etc.) and Biological Materials. Confidential Information is
contained in various media, including without limitation, patent applications,
computer programs in object and/or source code, flow charts and other program
documentation, manuals, plans, drawings, designs, technical specifications,
laboratory notebooks, supplier and customer lists, internal financial data and
other documents and records of the Company, whether or not in writing and
whether or not labeled or identified as confidential or proprietary. I agree
not to disclose any confidential information of the Company or of such other
persons, corporations, or firms to others or to make use of it, except on the
Company's behalf, whether or not such information is produced by my own efforts.
Also, I may learn of developments, ways of business, etc., which in themselves
are generally known but whose use by the Company is not generally known, and I
agree not to disclose to others such use, whether or not such use is due to my
own efforts.
6. At the time I begin employment and during the term of my employment by
the Company, I will not become employed by or act on behalf of any other person,
corporation, or firm which is engaged in any business or activity similar to or
competitive with that of the Company, unless such employment has been approved
by the Company in writing and signed by an appropriate personnel manager of the
Company.
7. In the event that my employment is transferred by the Company to a
subsidiary or affiliated company (as the case may be), my employment by such
company will, for the purposes of this Agreement, be considered as continued
employment by the Company, unless I execute an agreement, substantially similar
in substance to this Agreement, and until the effective date of said agreement
in any such company for which I become employed.
2
8. Upon termination of my employment, unless my employment is transferred
to a subsidiary or affiliated company of the Company, I agree to leave with the
Company all records, drawings, notebooks, and other documents pertaining to the
Company's confidential information, whether prepared by me or others, and also
any Biological Materials, equipment, tools or other devices owned by the
Company, then in my possession however such items are obtained, and I agree not
to reproduce any document or data relating thereto.
9. I agree that during my employment and for a period of one year after
the termination or cessation of my employment for any reason, I shall not
directly or indirectly recruit, solicit or hire any employee of the Company, or
induce or attempt to induce any employee of the Company to discontinue his or
her employment relationship with the Company.
10. I understand that this Agreement does not constitute a contract of
employment or create an obligation on the part of the Company to continue my
employment with the Company. I understand that my employment is "at will" and
that my obligations under this Agreement shall not be affected by any change in
my position, title or function with, or compensation, by the Company.
11. 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, and administrators.
12. Prior to entering into the employ of the Company I have terminated
employment with all past employers.
13. As a matter of record I have identified on Exhibit B all developments
---------
relevant to the subject matter of my employment by the Company which have been
made or conceived or first reduced to practice by me alone or jointly with
others prior to my engagement by the Company which I desire to remove from the
operation of this Agreement; and I covenant that such list is complete. If
there is no such list on Exhibit B, I represent that I have made no such
---------
developments at the time of signing this Agreement.
14. I agree that in addition to any other rights and remedies available to
the Company for any breach by me of my obligations hereunder, the Company shall
be entitled to enforcement of my obligations hereunder by court injunction.
15. If any provisions of this Agreement shall be declared invalid, illegal
or unenforceable, then such provision shall be enforceable to the extent that a
court shall deem it reasonable to enforce such provision. If such provision
shall be unreasonable to enforce to any extent, such provision shall be severed
and all remaining provisions shall continue in full force and effect.
16. This Agreement shall be effective as of the date set forth below next
to my signature.
3
17. This Agreement shall be governed in all respects by the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, I have executed this Agreement under seal as of the
date below.
Dated: May 24, 1994 By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------ --------------------------
Print Name: Xxxxxxxxxxx X. Xxxxxxx
----------------------
ACCEPTED AND AGREED TO:
Phytera, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Title: President
---------
4
EXHIBIT A
TO
CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT
--------------------------------------------------
5
EXHIBIT B
TO
CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT
--------------------------------------------------
6
