Exhibit 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement" is entered into between NutraStar, a
Nevada corporation (the "Company"), and Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx (the
"Employee") as of April 1, 2000.
1. SCOPE OF EMPLOYMENT.
(a) POSITION. The period of the Employee's employment by the Company is
referred to below as the "Term." During the Term, the Company shall employ the
Employee as its Research Pharmaceutical Chemist, reporting to the Company's
Chief Executive Officer and its Board of Directors (the "Board"). The Term shall
commence as of April 1, 2000 and continue until March 31, 2004.
(b) OBLIGATIONS.
(i) During the Term and except as expressly noted in this Section I
(b), the Employee shall devote his full business efforts and services to
the Company in the performance of his duties, consistent with the
Employee's position with the Company, as shall reasonably be assigned to
him by the Board. The Employee agrees, during the Term, not to provide
employment or consulting services to others outside the Company or
otherwise engage in any other business, profession or occupation for
compensation or otherwise. However, subject to the Employee's compliance
with the provisions of Section 6, below, (x) the Employee may serve as a
director on boards of directors of other companies and may serve any civic,
educational or charitable organization in any manner that does not
materially interfere with his duties to the Company, and (y) the Employee
may also invest and manage personal assets in businesses to an extent that
does not interfere with his duties to the Company and does not create
material conflicts of interest with the Company.
(ii) The Employee hereby represents to the Company that he has
discussed his resignation of employment with his current employer, The
RiceX Company, which the Employee shall make effective no later than the
date hereof, and that the execution and delivery of this Agreement by the
Employee and the Company and the performance by the Employee of the
Employee's duties hereunder shall not constitute a breach of or otherwise
contravene, the terms of any employment agreement or other agreement or
policy to which the Employee is a party or otherwise bound.
(c) AT-WILL STATUS/WRITTEN TERMINATION NOTICE. The Employee and the Company
agree that the Employee's employment with the Company constitutes "at-will"
employment. Therefore, this employment relationship may be terminated at any
time, with or without cause or reason, at the option either of the Company or
the Employee, subject only to satisfaction of the notice requirements set forth
below and the Company's obligations with respect to severance compensation and
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benefits otherwise specified in this Agreement. The party initiating the
termination of employment shall give the other party written notice stating the
effective date of termination, which effective date may (i) in the case of a
termination of the Employee's employment by the Company for Cause (as defined in
Section 2(d)(3)), be the date of giving of notice or any later date and (ii) in
the case of a termination of the Employee's employment by the Company without
Cause or due to the Employee's resignation, shall be a date at least thirty (30)
days after the date of delivery of such notice to the other party.
(d) OTHER AGREEMENTS AND FORMS. The Employee agrees to sign and deliver to
the Company on request (i) a copy of the Company's standard form of Confidential
Information Agreement required of other senior management employees, as the same
may be updated from time to time for purposes of financing or other business
transactions or otherwise, and (ii) any other employment-related forms that may
be required by law.
2. COMPENSATION
(a) BASE SALARY. While employed by the Company, the Company shall pay the
Employee as compensation for his services a base salary at a rate no less than
$55,000 per annum.
(b) ANNUAL BONUS. The Company agrees to maintain an annual bonus program
for members of the senior management group including the Employee. The Employee
shall be eligible to receive an annual bonus under the terms otherwise governing
the annual bonus program.
(c) BENEFITS. The Employee shall be entitled to a total of 10 weekdays
(Monday through Friday) per employment year commencing upon the date of this
Agreement for vacation, sick leave and other personal time off work (the
"Personal Time"), in addition to national or other holidays chosen by the
Company as holidays for all employees (which general holidays shall not be
counted as Personal Time). Any accrued but unused Personal Time may be carried
forward into subsequent years; provided, however, that no Personal Time shall be
earned or accrued if the accrued but unused Personal Time available to the
Employee at any tune exceeds a total of 30 days. Personal Time shall not resume
to be earned until accrued and unused Personal Time again declines below 30
days. The Employee and the Company shall reasonably cooperate with each other in
scheduling Personal Time used for vacation. During the Term, the Employee (and,
to the extent otherwise applicable, family dependents) shall otherwise be
eligible to participate in the expense reimbursement, medical, insurance and
other benefit and welfare plans maintained by the Company that are applicable to
other senior management of the Company, and on a basis no less favorable than
that made available to any other executive officer of the Company. In addition,
the Company shall during the Term pay or reimburse the Employee for (i) $300 per
month automobile allowance and, (ii) dues actually incurred and paid by the
Employee for continued membership in the _____________________ organizations.
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(d) SEVERANCE. If the Company terminates the Employee's employment with the
Company without "Cause" or the Employee resigns for "Good Reason" (both as
defined below), then the Company shall pay the Employee the base salary, bonus
and benefits payable to the Employee under Sections 2(a), (b) and (c) (the
"Severance Payment") for the remainder of the Term. The Company shall also pay
the Employee all salary, unused vacation, earned bonuses, and other benefits, if
any, which are otherwise accrued, owing and unpaid at the date of termination
(the "Accrued Pay"). Upon a termination of the Employee's employment described
in this Section 2(d), the Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
(i) Time of Payment. The Company shall pay the Employee all Accrued
Pay on the effective date of termination, and shall pay the Employee the
Severance Payment in monthly installments commencing within ten (10) days
after the effective date of termination.
(ii) Release. The Company shall be entitled to require, as a condition
of payment of the Severance Payment, that the Employee execute and deliver,
and (if revocation is otherwise allowed under federal age discrimination
law) not revoke for seven days, a general release by the Employee in form
and content satisfactory to the Company in which the Employee releases the
Company and its affiliates from all claims and liabilities that may relate
to the Employee's employment by the Company and/or arise under any state or
federal laws relating to employment. This release shall not excuse or
impair timely payment by the Company of any sums due under this Agreement.
(iii) Cause Defined. For the purposes of this Agreement, "Cause" shall
mean the Employee: (1) has been guilty of, or has pleaded "no contest" to,
personal acts or omissions which constitute a felony; or (2) has personally
committed a material act of dishonesty, fraud, violation of law or other
intentional misconduct having the effect of injuring the reputation,
business or business relationships of the Company; or (3) has willfully
breached his fiduciary or contractual duties to the Company; or (4) has
intentionally or through gross negligence failed to perform the duties of
his position after being warned in writing; or (5) has willfully and
wrongfully disclosed trade secrets or other material confidential
information in violation of his duties to the Company; or (6) has violated
the provisions of Section 6, below.
(iv) Good Reason Defined. For the purposes of this Agreement, "Good
Reason" shall mean (1) a reduction in the Employee's base salary; or (2) a
material demotion; or (3) a material reduction in the Employee's
responsibilities or authority; or (4) an involuntary relocation of the
place of the Employee's employment with the Company more than twenty (20)
miles away from El Dorado Hills (excluding business travel consistent with
the Employee's duties to the Company); or (5) any material breach of this
Agreement by the Company which, in each of the cases described in causes
(1) through (5), above, is not cured within fifteen (15) days after the
Employee gives written notice to the Company stating the nature of the
claimed breach.
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(v) Mitigation. The amounts payable by the Company to the Employee
under this paragraph (d) shall be reduced by any compensation that may be
earned by the Employee in connection with any subsequent employment,
self-employment or otherwise.
(vi) Exclusive Payment. Except for payments and rights referred to in
this paragraph (d), the Employee shall not be entitled to collect or claim
any other amounts from the Company in connection with the termination of
the Employee's employment by the Company without Cause.
(e) TERMINATION DUE TO EMPLOYEE'S DEATH OR DISABILITY. If the Employee's
employment with the Company terminates due to his death or Disability (as
defined below), then the Company shall continue to pay the Employee's base
salary through the end of the month in which such termination occurs. The
Company shall also pay the Employee all salary, unused vacation, earned bonuses,
and other benefits, if any, which are accrued, owing and unpaid at the date of
termination. Upon a termination of the Employee's employment described in this
Section 2(e), the Employee shall have no further rights to any compensation or
any other benefits under this Agreement.
For purposes of this Agreement, Disability shall mean commencement of benefits
to the Employee based on full disability as defined under the Company's group
disability insurance policy, if any, in effect at the time of that event; and in
the absence of any such policy, the absence of the Employee from full time
performance of his duties for a period in excess of ninety (90) consecutive days
due to incapacity of the Employee from physical or mental illness.
(f) TERMINATION BY THE COMPANY FOR CAUSE OR DUE TO EMPLOYEE'S RESIGNATION
WITHOUT GOOD REASON. If the Company terminates the Employee's employment with
the Company for Cause or if the Employee resigns his employment with the Company
without Good Reason, then the Company shall pay the Employee all salary, unused
vacation, earned bonuses, and other benefits, if any, which are accrued, owing
and unpaid at the date of termination. Upon a termination of the Employee's
employment described in this Section 2(f), the Employee shall have no further
rights to any compensation or any other benefits under this Agreement.
(g) VESTED PLAN BENEFITS NOT AFFECTED. No provision of this Agreement shall
be interpreted to deny or impair any payments and/or rights that are vested or
otherwise payable in accordance with the express terms of any stock option,
ERISA, retirement, insurance, or other benefit plan which has been written or
formally adopted by the Company, or COBRA rights governing continuation of
health insurance benefits. These payments and rights are in addition to any
payments otherwise due under this Agreement. However, the Employee acknowledges
that termination of his employment under any circumstance will end any further
participation in any benefit plans as may be provided in the applicable plan
documents.
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3. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and (a) the heirs, executors and legal representatives of the
Employee upon the Employee's death and (b) any successor of the Company (whether
by purchase of assets or shares, merger, consolidation or otherwise). None of
the rights of the Employee to receive any form of compensation payable pursuant
to this Agreement shall be assignable or transferable except by will or by law
upon the death of the Employee. The Company shall require any successor of the
Company to agree in writing expressly to perform this Agreement to the same
extent as would be required if no such succession had taken place.
4. NOTICES. All notices, requests, demands and other communications called for
hereunder shall be in writing and shall be deemed given if (i) delivered
personally, (ii) one (1) day after being sent by Federal Express or a similar
commercial overnight service, or (iii) three (3) days after being mailed by
registered or certified mail, return receipt requested, prepaid and addressed to
the parties or their successors in interest at the following addresses, or at
such other addresses as the parties may designate by written notice in the
manner aforesaid:
If to the Company: 0000 Xxxx'x Xxxxxx Xxxxx, Xx Xxxxxx Xxxxx, XX 00000.
If to the Employee: at the last residential address known by the Company.
5. SEVERABILITY. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without that
provision.
6. CONFIDENTIAL INFORMATION AGREEMENT AND NON- COMPETITION.
(a) Confidentiality. The Employee agrees to enter into the Company's standard
confidentiality and inventions agreement required from other senior management
from time to time. Without limiting the foregoing, the Employee agrees that
Employee will not at any time (whether during or after this employment with the
Company) disclose or use for his own benefit or purposes or the benefit or
purposes of any other person, firm, partnership, joint venture, association,
corporation or other business organization, entity or enterprise other than the
Company and any of its subsidiaries or affiliates, any trade secrets,
technology, information, data or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally,
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Employee's breach of this covenant. Employee agrees that upon termination of his
employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, business or financial
information, letters and other data, and all copies thereof or therefrom
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embodied or stored in documents, disks of any nature, or other media, in any way
relating to the business of the Company and its affiliates, except that he may
retain personal notes, notebooks and diaries that do not contain confidential
information of the type described in the preceding sentence. Employee further
agrees that he will not retain or use for his account at any time any trade
names, trademark or other proprietary business designation used or owned in
connection with the business of the Company or its affiliates.
(b) Non-Compete. Employee acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees as follows:
(i) To the fullest extent the same may be enforceable under any law,
during the Term and for a period of nine (9) months following the date
Employee ceases to be employed by the Company (the "Restricted Period"),
the Employee will not directly or indirectly (i) engage anywhere in the
world (the "Geographic Area") in any business for the Employee's own
account that competes with the business of the Company, (ii) enter the
employ of, or render any services to, any person engaged in any business
that competes with the business of the Company within the Geographic Area,
(iii) acquire a financial interest in, or otherwise become actively
involved with, any person engaged in any business that competes with the
business of the Company within the Geographic Area, directly or indirectly,
as an individual, partners, shareholder, officer, director, principal,
agent, trustee or consultant, or (iv) interfere with business relationships
(whether formed before or after the date of this Agreement) between the
Company or any of its affiliates that are engaged in a business similar to
the business of the Company (the "Company Affiliates") and customers or
suppliers of the Company or the Company Affiliates. The Employee
acknowledges that this is a reasonable restriction to prevent inevitable
disclosure of trade secrets of the Company or Company Affiliates, and that
the Employee shall have the burden of proving that this restriction is not
reasonably appropriate for the protection of these trade secrets.
Notwithstanding the foregoing, this restriction shall not preclude the
Employee from accepting employment at a company in which he does not own or
share a controlling interest if the Employee's duties during such 9 month
period following employment with the Company do not involve the Employee's
participation in activities or lines of business which compete with the
business of the Company or Company Affiliates and do not conflict with
clause (iv) above.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Employee may, directly or indirectly own, solely as an investment,
securities of any person engaged in the business of the Company which are
publicly traded on a national or regional stock exchange or on the
over-the-counter market if the Employee (i) is not a controlling person of,
or a member of a group which controls, such person and (ii) does not,
directly or indirectly, own five percent (5%) or more of any class of
securities of such person.
(iii) During the Restricted Period, the Employee will not, directly or
indirectly (i) solicit or encourage any employee of the Company or the
Company Affiliates to leave the employment of the Company or the Company
Affiliates or (ii) hire any such employee who has left the employment of
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the Company or the Company Affiliates following, or within one year prior
to, the date of the Employee's termination of employment with the Company
or the Company Affiliates.
(iv) During the Restricted Period, the Employee will not, directly or
indirectly, solicit or encourage to cease to work with the Company or the
Company Affiliates any consultant then under contract with the Company or
the Company Affiliates.
(v) During the Restricted Period, the Employee will not directly or
indirectly, solicit, or encourage to cease to do business with the Company
or the Company Affiliates, any customer, vendor, supplier or other third
party with whom, prior to the termination of the Employee's employment, the
Employee has had any significant role in negotiating contracts, managing
that account or otherwise dealing with that customer or other third party.
The Employee acknowledges that this is a reasonable restriction to prevent
inevitable disclosure of trade secrets of the Company or Company
Affiliates, and that the Employee shall have the burden of proving that
this restriction is not reasonably appropriate for the protection of these
trade secrets.
(c) Savings Clause. The Employee acknowledges that no shareholder or lender
would invest any monies in the Company without the benefit of the covenants
contained in this Section 6 by the Employee, and that these covenants are an
important part of the Company's strategy to achieve value for all of its
shareholders, including the Employee to the extent of his interest in the
Company's stock. The Employee represents that he has consulted with counsel
concerning the terms of this Agreement, including, but not limited to, the
provisions of this Section 6, and acknowledges that compliance with the
provisions of this Section 6 are fair and reasonable. The Employee further
acknowledges that compliance with the provisions of this Section 6 will not
create any hardship on the Employee as he has both independent means and
sufficient income to be fully self-supporting without competing with the Company
or otherwise violating any of the provisions hereof. Accordingly, the Employee
shall be bound by the provisions hereof to the maximum extent permitted by law,
it being the intent and spirit of the parties that the foregoing shall be fully
enforceable. However, the parties further agree that, if any of the provisions
hereof shall for any reason be held to be excessively broad as to duration,
geographical scope, property or subject matter, it shall be construed by
limiting and reducing it so as to be enforceable to the extent compatible with
the applicable law as it shall herein pertain.
(d) Specific Performance. Employee acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of this Section 6 would be inadequate and, in recognition of this
fact, Employee agrees that, in the event of such a breach or threatened beach,
in addition to any remedies at law, the Company, without posting any bond. shall
be entitled to cease making any payments or providing any benefit otherwise
required by this Agreement and obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available.
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7. ENTIRE AGREEMENT. Except for that certain Confidential Information Agreement
between the Company and the Employee (and any other subsequent written
confidentiality agreement signed by the Company and the Employee), this
Agreement represents the entire agreement and understanding between the Company
and the Employee concerning the Employee's employment relationship with the
Company, and supersedes and replaces any and all prior agreements and
understandings concerning the Employee's employment relationship with the
Company.
8. ARBITRATION
(a) The Employee and the Company agree that any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof (and whether arising in contract, tort, statutory law, equity or
otherwise), shall be settled by arbitration to be held within twenty-five (25)
miles of the location of the Employee's then most recent principal place of
employment with the Company in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the "Rules"). There shall be a single arbitrator agreed upon
mutually by the parties. If the parties cannot agree upon the selection of an
arbitrator within 30 days after the demand for arbitration given by one party to
the other, the selection of the arbitrator shall be made as provided in the
Rules. The arbitrator may grant damages, injunctions or other relief in such
dispute or controversy, except that the arbitrator shall not have the power to
award any damages or other relief or remedy that would not be available from a
court of competent jurisdiction located in California. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
having jurisdiction.
(b) The arbitrator shall apply California law without reference to rules of
conflicts of law and any applicable federal law of the United States of America
to the merits of any dispute or claim. The arbitration proceedings shall be
governed by federal arbitration law and by the Rules, without reference to state
arbitration law. The Employee and the Company hereby expressly consent to the
personal jurisdiction of the state and federal courts located in California for
any action or proceeding arising from or relating to this Agreement and/or
relating to any arbitration in which the parties are participants.
(c) The Company and the Employee shall each pay one-half of the costs and
expenses of such arbitration, and shall separately pay its or his own counsel
fees and expenses during the course of arbitration, provided that the arbitrator
shall have the discretion to award attorneys' fees to the Employee in the event
the arbitrator determines that the Employee should be considered the prevailing
party.
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(d) THE EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF THE EMPLOYEE'S RIGHT TO A JURY TRIAL AND RELATES
TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, WHETHER ARISING UNDER CONTRACT OR FEDERAL OR
STATE LAWS RELATING TO EMPLOYMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
(e) Notwithstanding the foregoing, each party agrees that the foregoing
arbitration clause shall not apply to the subject matter of the Confidential
Information Agreement or similar written contract in effect from time to time
between the parties, and neither party is obligated to submit to arbitration any
dispute arising under such separate written agreements.
9. NO ORAL OR INDIRECT MODIFICATION. This Agreement may only be amended,
canceled or discharged in writing signed by the Employee and a duly authorized
officer (other than the Employee) of the Company. The Employee agrees that no
employee handbook, employment policies or other acts or omissions of the Company
shall be considered to be part of this Agreement or any implied employment
agreement except to the extent stated in writing and signed by the parties as
provided in this Section 9.
10. WITHHOLDING. The Company shall be entitled to withhold, or cause to be
withheld, all applicable withholding taxes required by foreign, federal, state
or local laws from all cash and noncash compensation or other payments made to
Employee in connection with his employment, this Agreement, or other agreements,
if any, between the Employee and the Company.
11. ACKNOWLEDGMENT. The Employee acknowledges that he has had the opportunity to
discuss this matter with and obtain advice from his own attorney if so desired,
has had sufficient time to, and has carefully read and fully understands, all
the provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
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12. COUNTERPARTS. This Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. A signature transmitted via email or
facsimile transmission shall be as binding as a manual signature on a
counterpart hereof.
NutraStar
a Nevada corporation
("Company")
By:
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Print Name:
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Title:
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Print Name: ("Employee")
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CONFIDENTIAL INFORMATION AGREEMENT
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Please read carefully: this document contains assignments of inventions and
copyrights, and other important provisions relating to legal rights. This
Confidential Information Agreement (the "Agreement") is entered into as of
____________________, between NutraStar, a Nevada corporation (the "Company")
and Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx (referred to below as "I"). While serving as
an employee, independent contractor, director or other capacity with the Company
(referred to, as the case may be, as "relationship" below), I may have access to
information about the Company or its business. I acknowledge that the Company
has a legitimate interest in keeping this information confidential in order to
maximize the Company's business opportunities. I confirm my intention to protect
this information against unauthorized use. Therefore, in consideration of my
relationship with the Company and other legal and adequate consideration, the
receipt of which is hereby acknowledged, I agree for the benefit of the Company
that:
1. Provisions Related to Trade Secrets
(a) Proprietary Information. As used in this Agreement, "Proprietary
Information" means the following, whether now or later owned or existing,
whether or not marked "confidential," and however embodied or stored: (1) any
information (including without limitation any formula, pattern, compilation,
program, device, method, technique or process) relating to or owned by the
Company that derives independent economic value, actual or potential from not
being generally known to the public or to other persons who can obtain economic
value from its disclosure or use, and (2) any other invention, trade secret,
knowledge or information pertaining to the Company or the Company's existing or
prospective businesses, customers, suppliers, and others with whom the Company
does or intends to do business, which relates to products, services, processes,
know-how, designs, formulas, methods, work in process, improvements,
discoveries, plans for research, software programs, source or object codes,
algorithms, data, techniques, marketing, selling, business plans, budgets,
unpublished financial statements, licenses, prices, costs, employee skills or
compensation, or other matters.
(b) Trust. I acknowledge that the Company possesses and will continue to
develop and acquire valuable Proprietary Information, including information that
I may develop or discover as a result of my relationship with the Company. The
value of that Proprietary relationship Information depends on it remaining
confidential. The Company depends on me to maintain that confidentiality, and I
accept that position of trust.
(c) Prohibited Use/Disclosure. I will not disclose or use at any time,
either during or after my relationship with the Company, any Proprietary
Information except for the exclusive benefit of the Company as required by my
duties for the Company, or as the Company expressly may consent to in writing. I
will cooperate with the Company and use my best efforts to prevent the
unauthorized disclosure, use or reproduction of Proprietary Information, except
as expressly authorized by the Company.
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(d) Return of Information. Upon the end of my relationship with the Company
for any reason, I immediately will deliver to the Company all tangible, written,
graphical machine readable and other materials (including all copies) in my
possession or under my control containing or disclosing Proprietary Information.
(e) Waivers. I waive all claims and defenses I might otherwise have to
assert that the Company's procedure or lack of procedure to protect Proprietary
Information lessens or excuses any duty I have expressly agreed to in this
Agreement. I further waive any right I might otherwise have to assert or claim
that any acts or omissions of the Company outside this Agreement constitute a
set off, counterclaim or defense to any rights the Company has under this
Agreement.
(f) Other Agreements. I agree that I will not directly or indirectly commit
or cause a violation or breach of the Company's nondisclosure obligations under
any agreement to which the Company may be or become a party. I will comply with
the confidentiality provisions of, and execute such confidentiality forms as may
be required under, any contracts between the Company and parties contracting
with the Company.
2. Ownership of Inventions
(a) Inventions. As used in this Agreement, the term "inventions" includes,
but is not limited to, all inventions, original works of authorship, ideas,
patterns, devices, techniques, discoveries, improvements, processes,
developments, designs, know-how, data, programs, formulas, source and object
codes, methods, diagrams, technology and trade secrets, whether or not reduced
to practice or the subject of any governmental filings.
(b) Assignment to Company. I agree to communicate to the Company as
promptly and fully as practicable all Inventions conceived or reduced to
practice by me (alone or jointly by others) at any time during my relationship
with the Company. I hereby assign to the Company and/or its nominees all my
right, title and interest in such Inventions, and all my right, title and
interest in any patents, copyrights, mask work rights, trademarks, and service
marks, and all applications, registrations, and other filings or rights related
thereto on a worldwide basis (collectively referred to for convenience as
"Proprietary Filings"). I will assist the Company and/or its nominees (without
charge but at no expense to me) at any time and in every lawful way to obtain
for its and/or their own benefit, all Proprietary Filings for all such
Inventions anywhere in the world and to enforce its and/or their rights in legal
proceedings.
(c) Labor Code Exception. Any provision in this Agreement requiring me to
assign my rights in any Invention does not apply to an Invention which qualifies
under the provisions of Section 2870 of the California Labor Code. That section
provides that the requirement to assign "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 (1) relate at the time of conception or
reduction to practice of the invention to the employer's business, or actual or
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demonstrably anticipated research or development of the employer; or (2) result
from any work performed by the employee for the employer. I understand that I
bear the burden of proving that an Invention qualifies under Section 2870.
(d) U.S. Contracts. Notwithstanding the foregoing, I also assign to the
Company (or to any of its nominees) all rights which I may have or acquire in
any Invention, full title to which is required to be in the United States by a
contract between the Company and the United States or any of its agencies.
(e) Power of Attorney. I hereby irrevocably designate and appoint the
Company and each of its duly authorized officers and agents as my agent and
attorney-in-fact to act for and in my behalf and stead to execute and file any
document and to do all other lawfully permitted acts to further the prosecution,
issuance and enforcement of Proprietary Filings with the same force and effect
as if executed and delivered by me.
(f) List of Excluded Inventions. I have attached hereto as Exhibit A a
complete list of all Inventions that I consider to be my property or owned by
others and that I wish to exclude from this Agreement (with only generic
listings if specific disclosure would violate any prior agreement). If no items
are listed, I agree that there are no such items.
3. Other Promises
(a) No Competition During My Relationship with the Company. During my
relationship with the Company, I will not, without the Company's express written
consent, engage in any employment or business other than for the Company, or
cause or assist (in any manner) in the formation or operations of any business
competitive with or similar to the existing or future business of the Company.
(b) No Solicitation/Use of Proprietary Information. I agree that during my
relationship with the Company, and for one (1) year following its termination by
me or by the Company, I will not: (1) directly or indirectly, alone or working
for others, solicit business as to products or services similar to the products
or services of the Company from any of the Company's customers or prospective
customers with whom I have had any contact prior to the end of my relationship
with the Company, or (2) solicit for employment any person employed by the
Company (or its affiliates or successors). I agree that the identity of the
Company's suppliers and customers and the related terms of dealing constitute
trade secrets of the Company and that the foregoing promise is a reasonable
means of protecting the Company's trade secrets from the inevitable disclosure
that would result from a violation of the foregoing covenants.
(c) No Conflict with Other Agreements. My relationship with the Company and
my compliance with this Agreement do not and will not breach any agreement to
keep in confidence information acquired by me prior to or outside of my
relationship with the Company. I have not brought and will not bring with me to
the Company for use in the performance of my duties at the Company any
materials, documents or information of a former employer or any third party that
13
are not generally available to the public unless I have obtained (and first
given to the Company) express written authorization from the owner for their
possession and use by or for the Company. I will not use or disclose to the
Company during my relationship with the Company any information if that use or
disclosure would cause me to violate any contractual or legal duty to any third
party. I have not entered into, and will not enter into, any agreement, either
oral or written, in conflict with this Agreement. I am not obligated under any
contract or other agreement, or subject to any judgment, decree or order of any
court or administrative agency, that would interfere with the use of my best
efforts to promote the interests of the Company or that would conflict with the
Company's existing or proposed business known to me.
4. General
(a) Amendment. My obligations under this Agreement may not be modified or
terminated, in whole or in part, except in a writing signed by the President of
the Company. Any waiver by the Company of a breach of any provision of this
Agreement will not operate or be construed as a waiver of any subsequent breach.
(b) Severability/Interpretation. Each provision of this Agreement will be
treated as a separate and independent clause, and the unenforceability of any
one provision will in no way impair the enforceability of any other provision.
If any provision is held to be unenforceable, such provision will be construed
by the appropriate judicial body by limiting or reducing it to the minimum
extent necessary to make it legally enforceable. If any provision hereof is
considered unclear or ambiguous, it shall not be construed against the Company
but instead shall be construed to give effect to the interests of the Company
consistent with the specific provisions of this Agreement.
(c) Survival of My Obligations. My obligations under this Agreement will
survive the termination of my employment or other relationship and any other
contract with the Company, regardless of the cause, lack of cause, or manner of
such termination. This Agreement will inure to the benefit of and be binding
upon the successors and assigns of the Company.
(d) No Implied Terms. I understand that the provisions of this Agreement
are a material condition to my relationship with the Company. I also understand
that this Agreement is not an employment contract, and nothing in this Agreement
shall create or imply (1) any right to require the Company to employ or continue
to employ me, or otherwise enter into or continue any contract with me, (2) any
particular terms of employment or other relationship, or (3) any limitation on
the right of the Company or me to end my employment or other relationship.
(e) Remedies and Attorneys' Fees. Any breach of this Agreement likely will
cause irreparable harm to the Company for which money damages could not
reasonably or adequately compensate the Company. Accordingly, I agree that the
Company will be entitled to a court order of specific performance of this
Agreement and injunctive relief to enforce this Agreement, in addition to
damages and other remedies available to the Company by contract or by law. If
any action or proceeding shall be commenced to enforce this Agreement or any
14
right arising in connection with this Agreement, the prevailing party in such
action or proceeding shall be entitled to recover from the other party, the
reasonable attorneys' fees, costs and expenses incurred by such prevailing party
in such action and any related appeals, bankruptcy, collection or enforcement
proceedings.
(f) Applicable Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of California governing a contract made in
and between residents of California and wholly performed within California.
(g) Complete Agreement. This Agreement contains the complete agreement
between the Company and me concerning the subject matter hereof and supersedes
all other agreements and written or oral understandings. This Agreement may be
executed in counterparts.
___________________________
(Signature)
___________________________
(Print Name)
AGREED AND ACKNOWLEDGED:
NutraStar
By:
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15
EXHIBIT "A"
LIST OF PRIOR INVENTIONS
------------------------
Identifying Number
Title Date or Brief Description
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16
