EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
EXHIBIT
99.1
EMPLOYEE
PROPRIETARY INFORMATION
AND
INVENTIONS AGREEMENT
In
consideration of my employment by Teragenix Corporation (the
"Company") and
the
compensation I receive from the Company, I agree that:
1. Proprietary
Information.
I
understand that the Company possesses and will possess Proprietary
Information that is important to its business. "Proprietary Information" is
information (whether conveyed orally, in writing or otherwise) that was or
will be developed, created, or discovered by or on behalf of the Company, or
that became or will become known by, or was or is conveyed to the Company,
that
has or could have commercial value in the Company's business, unless
(a) the information is or becomes publicly known through lawful means; or
(b) the information is disclosed to me without confidential or proprietary
restriction by a third party who rightfully possesses the information (without
confidential or proprietary restriction) and who did not learn of it
directly or indirectly from the Company.
Proprietary
Information includes, without limitation, any Company Inventions (as defined
below) and any information relating to (i) client/customer lists, vendor
lists or other lists or compilations containing client, customer or vendor
information; (ii) information about products, proposed products, research,
product development, techniques, processes, costs, profits, markets, marketing
plans, strategies, forecasts, sales or commissions; (iii) plans for the
future development or new product concepts; (iv) manufacturing techniques
or processes, documents, books, papers, drawings, schematics, models, sketches,
computer programs, databases or other data, including electronic data recorded
or retrieved by any means; (v) the compensation, performance and terms of
employment of other employees; (vi) all other information that has been or
will be given to me in confidence by the Company (or any affiliate);
(vii) software in various stages of development, and any designs, drawings,
schematics, specifications, techniques, models, data, source code, algorithms,
object code, documentation, diagrams, flow charts, research development,
processes and procedures relating to any software; and (viii) any
information that the Company obtains from another party that it treats as
proprietary or designates as Proprietary Information.
At
all
times, both during my employment with the Company and after my
termination, I
will
not, directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any third party, other than in my assigned duties for the benefit
of the Company, any Proprietary Information.
I am
aware that the unauthorized disclosure of Proprietary Information may be highly
prejudicial to the Company's interests, an invasion of privacy, and an improper
disclosure of trade secrets. Without limiting the foregoing, I shall not make
copies of, or otherwise reproduce, Proprietary Information unless authorized
by
the Company for reproduction.
2. Company
Materials.
"Company Materials" are documents or other media or tangible items that contain
or embody Proprietary Information or any other information concerning the
business, operations or plans of the Company, whether such documents have been
prepared by me or by others. "Company Materials" include, without limitation,
blueprints, drawings, photographs, charts, graphs, notebooks, customer lists,
computer software, media or printouts, sound recordings and other printed,
typewritten or handwritten documents, as well as samples, prototypes, models,
products and the like.
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3. Intellectual
Property.
3.1 All
Proprietary Information and all right, title and interest in and to any patents,
patent rights, copyrights, trademark rights, mask work rights, trade secret
rights, and all other intellectual and industrial property and proprietary
rights that currently exist or may exist in the future anywhere in the world
(collectively, "Rights") in connection therewith shall be the sole property
of the Company. I hereby assign to the Company any Rights I may have or acquire
in such Proprietary Information.
3.2 I
acknowledge and agree that I have no expectation of privacy with respect to
the
Company's telecommunications, networking or information processing systems
(including, without limitation, stored company files, e-mail messages and voice
messages) and that my activity and any files or messages on or using any of
those systems may be monitored at any time without notice. I further agree
that
any property situated on the Company's premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas,
is
subject to inspection by Company personnel at any time with or without notice.
All Company Materials shall be the sole property of the Company. I agree that
during my employment with the Company, I will not remove any Company Materials
from the business premises of the Company or deliver any Company Materials
to
any person or entity outside the Company, except as I am required to do in
connection with performing the duties of my employment. I recognize that the
unauthorized taking of any Proprietary Information may be a crime under the
Cal.
Penal Code §499c or comparable laws of other states or the United States, and
may also result in civil liability under Sections 3426.1 through 3426.11 of
the
California Civil Code, or comparable laws of other states. I
further
agree that, immediately upon the termination of my employment by me or by the
Company for any reason, or for no reason, or during my employment if so
requested by the Company, I will return all Company Materials, apparatus,
equipment and other physical property, or any reproduction of such property,
excepting only (a) my personal copies of records relating to my
compensation; (b) my
personal copies of any materials previously distributed generally to
stockholders of the Company; and (c) my
copy
of this Employee Proprietary Information and Inventions Agreement (the
"Agreement").
3.3 I
agree
that all "Inventions" (which term includes patentable or non-patentable
inventions, original works of authorship, derivative works, trade secrets,
trademarks, copyrights, service marks,
mask
works,
discoveries, patents, technology, algorithms, computer software, application
programming interfaces, protocols, formulas, compositions, ideas, designs,
processes, techniques, know-how, data and all improvements, rights and claims
related to the foregoing), which I have made, conceived, reduced to practice
or
developed, and which I make, conceive, reduce to practice or develop (in whole
or in part, either alone or jointly with others) during my employment and
in connection with the business of the Company, shall be the sole property
of
the Company to the maximum extent permitted by Section 2870 of the
California Labor Code. I hereby assign, without further consideration, all
such
Inventions ("Company Inventions") to the Company (free and clear of all
liens and encumbrances), and the Company shall be the sole owner of all Rights
in connection therewith. No assignment in this Agreement shall extend to
Inventions, the assignment of which is prohibited by Labor Code
Section 2870, which states:
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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:
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1.
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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.
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2.
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Result
from any work performed by the employee for the
employer.
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I
acknowledge that all original works of authorship which have been made and
which
are made by me (in whole or in part, either alone or jointly with
others) within the scope of my employment and which are protectable by
copyright are "works made for hire," as defined in the United States Copyright
Act (17 USCA, Section 101). I have not disclosed and will not disclose
Inventions covered by this Section 3.3
to any
person outside the Company, unless I am requested to do so by management
personnel of the Company.
3.4 I
have
maintained and agree to maintain adequate and current written records on the
development of all Company Inventions and have disclosed and agree to disclose
promptly to the Company all Company Inventions and relevant records, which
records will remain the sole property of the Company. I further agree that
all
information and records pertaining to any idea, process, trademark, service
xxxx, invention, technology, computer program, original work or authorship,
design, formula, discovery, patent, or copyright that I do not believe to be
a
Company Invention, but is conceived, developed, or reduced to practice by me
(in
whole or in part, either alone or jointly with others) during my
employment, shall be promptly disclosed to the Company (such disclosure to
be
received in confidence). The Company shall examine such information to determine
if in fact the ideas, process, or invention, etc., constitutes a Company
Invention and is therefore subject to assignment under Section
3.3.
I will
also disclose to the Company all Inventions conceived, reduced to practice,
used, sold, exploited or developed by me (in whole or in part, either alone
or
jointly with others) within one (1) year of the termination of my
employment with the Company ("Presumed Inventions"); such disclosures shall
be
received by the Company in confidence, to the extent they are not assigned
to
the Company in Section 3.3,
and do
not extend such assignment. Because of the difficulty of establishing when
any
Presumed Invention is first conceived or developed by me, or whether it results
from access to Proprietary Information or the Company's equipment, facilities,
and data, I agree that all Presumed Inventions and all Rights associated
therewith shall be presumed to be Company Inventions and therefore assignable
to
the Company. I can rebut this presumption, if I prove that a Presumed Invention
is not a Company Invention.
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3.5 I
agree
to perform, during and after my employment, all acts deemed necessary or
desirable by the Company to permit and assist it, at the Company's expense,
in
evidencing, perfecting, recording, obtaining, maintaining, defending and
enforcing Rights and/or my assignment with respect to such Company Inventions
in
any and all countries. Such acts may include, without limitation, execution
of
documents and assistance or cooperation in legal proceedings. Should the Company
be unable to secure my signature on any document necessary to apply for,
prosecute, obtain, enforce or defend any Rights relating to any assigned
Invention, whether due to my mental or physical incapacity or any other cause,
I
hereby irrevocably designate and appoint the Company and its duly authorized
officers and agents, as my agents and attorneys-in-fact, with full power of
substitution, to act for and in my behalf and instead of me, to execute and
file
any documents and to do all other lawfully permitted acts to further the above
purposes with the same legal force and effect as if executed by me.
3.6 Any
assignment of copyright hereunder (and any ownership of a copyright as a work
made for hire) includes all rights of paternity, integrity, disclosure and
withdrawal and any other rights that may be known as or referred to as "moral
rights" (collectively, "Moral Rights"). To the extent such Moral Rights cannot
be assigned under applicable law and to the extent the following is allowed
by
the laws in the various countries where Moral Rights exist, I hereby waive
such
Moral Rights and consent to any action of the Company that would violate such
Moral Rights in the absence of such waiver and consent. I will confirm any
such
waivers and consents from time to time as requested by the Company.
3.7 I
agree
that I will not incorporate in
any
way,
or
permit to be incorporated in
any
way,
any
Inventions made, conceived, reduced to practice or developed by me (in whole
or
in part, either alone or jointly with others) either: (a) prior to or (b)
outside the scope of my engagement as an independent contractor for the Company
("Prior Inventions"). Notwithstanding the foregoing, I hereby
grant the
Company a royalty-free, nonexclusive, perpetual, irrevocable,
transferable,
worldwide
license (with rights to sublicense through multiple tiers of sublicense) to
practice all Rights relating to any Prior Inventions (or
other
Inventions that are not assigned or assignable to Company hereunder) that
become incorporated in
any
way,
or I
permit to be incorporated in
any
way,
in any
Company Inventions or
any
other Company technology or products.
3.8 I
understand that nothing in this Agreement is intended to expand the scope of
protection provided me by Sections 2870 through 2872 of the California Labor
Code.
4. Former
Employer Information.
I agree
that I will not, during my employment with the Company, improperly use or
disclose any confidential information, proprietary information or trade secrets
of my former or concurrent employers. I agree that I will not bring onto the
premises of the Company any document or any property belonging to my former
employers unless consented to in writing by them. I represent and warrant that
I
have returned all property and confidential information belonging to all prior
employers.
5. Prior
Actions and Knowledge.
I
represent and warrant that from the time of my first contact or communication
with the Company, I have held in strict confidence all Proprietary Information
and have not and will not: (a) disclose any Proprietary Information or
deliver any Company Materials to anyone outside of the Company, or (b) use,
copy, publish, or summarize any Proprietary Information or remove any Company
Materials from the business premises of the Company, except to the extent
necessary and appropriate to carry out my responsibilities as an employee of
the
Company, or (c) improperly use or disclose any confidential information,
proprietary information or trade secrets of my former or concurrent employers
or
any other third party, or (d) bring onto the premises of the Company any
document or any property belonging to my former employers unless consented
to in
writing by them.
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6. No
Conflict with Obligations to Third Parties.
I
represent that my performance of all the terms of this Agreement has not
breached and will not breach any agreement to keep in confidence proprietary
or
confidential information acquired by me in confidence or in trust prior to
my
employment with the Company. I have not entered into, and I agree I will not
enter into, any agreement either written or oral in conflict herewith or in
conflict with my employment with the Company. The performance of this Agreement
does not and will not violate any applicable law, rule or regulation or any
proprietary or other right of any third party.
7. Remedies;
Waiver.
I
recognize that nothing in this Agreement is intended to limit any remedy of
the
Company under the California Uniform Trade Secrets Act. I recognize that my
violation of this Agreement could cause the Company irreparable harm, the amount
of which may be extremely difficult to estimate, making any remedy at law or
in
damages inadequate. Therefore, I agree that the Company shall have the right
to
apply to any court of competent jurisdiction for an order restraining any breach
or threatened breach of this Agreement and for any other relief the Company
deems appropriate. This right shall be in addition to any other remedy available
to the Company. I
ALSO ACKNOWLEDGE AND UNDERSTAND THAT I SHALL NOT, UNDER ANY CIRCUMSTANCE, HAVE
ANY RIGHT TO SEEK OR ATTEMPT TO SEEK ANY INJUNCTIVE RELIEF AGAINST THE COMPANY
WITH RESPECT TO ANY BREACH OR THREATENED BREACH OF THIS AGREEMENT, AND I HEREBY
WAIVE ANY AND ALL SUCH RIGHTS AGAINST THE COMPANY.
8. Survival.
I agree
that my obligations under Sections 1,
3, and
7 through
15
of this
Agreement shall continue in effect after termination of my employment,
regardless of the reason or reasons for termination, and whether such
termination is voluntary or involuntary on my part, and that the Company is
entitled to communicate my obligations under this Agreement to any future
employer or potential employer of mine.
9. Controlling
Law; Venue; Severability.
I agree
that the
sole
jurisdiction and venue for actions related to the subject matter hereof shall
be
the state and federal courts located in the County of Los Angeles,
California. I
further
agree that if one or more provisions of this Agreement are held to be illegal
or
unenforceable under applicable California law, such illegal or unenforceable
portion(s) shall be limited or excluded from this Agreement to the minimum
extent required so that this Agreement shall otherwise remain in full force
and
effect and enforceable in accordance with its terms.
10. Successors
and Assigns.
This
Agreement shall be binding upon me, my heirs, executors, assigns, and
administrators and shall inure to the benefit of the Company, its subsidiaries,
successors and assigns. The failure, 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.
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11. Entire
Agreement/Modification.
The
terms of this Agreement (including all attached Exhibits, which are incorporated
herein by this reference) are the final expression of my agreement with
respect to its subject matter and may not be contradicted by evidence of any
prior or contemporaneous agreement. This Agreement can only be modified by
a
subsequent written agreement executed by an officer of the Company.
12. Integration.
This
Agreement supersedes all, and may not be contradicted by evidence of any, other
prior and contemporaneous agreements and statements on these subjects. If any
practices, policies, or procedures of the Company, now or in the future, that
apply to me are inconsistent with the terms hereof, the provisions of this
Agreement shall control unless changed in writing by the Company.
13. Employment
at Will.
This
Agreement is not an employment agreement. Except as set forth in my employment
agreement,
if any,
the Company may terminate my employment with it at any time, with or without
cause.
14. 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.
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15.
Rights Cumulative.
The
rights and remedies provided hereby to the Company are cumulative, and the
exercise of any right or remedy by the Company, whether pursuant hereto, to
any
other agreement, or to law, shall not preclude or waive the Company's right
to
exercise any or all other rights and remedies.
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I
HAVE
READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH
IT IMPOSES UPON ME WITHOUT RESERVATION. I
HAVE
HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL IN REGARD TO THIS AGREEMENT AND
AM
FULLY AWARE OF ITS LEGAL EFFECT. I HAVE ENTERED INTO THIS AGREEMENT FREELY
AND
VOLUNTARILY AND BASED ON MY OWN JUDGMENT. NO
PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS
AGREEMENT.
| Date: | August 29, 2006 | /s/ Xxxxxx Xxxxxxxx Xxxxx | |
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Employee
Signature
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Xxxxxx
Xxxxxxxx Xxxxx.
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Name
(type or print)
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Accepted
and Agreed to:
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Teragenix
Corporation
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By:
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/s/ Xxxx Xxxxxx | ||
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Name:
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Xxxx Xxxxxx | ||
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Title:
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CEO | ||
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