Exhibit 10.34
H Power Corp.
Employee Non Disclosure Agreement
EMPLOYEE'S AGREEMENT RE:
INVENTIONS, CONFIDENTIAL INFORMATION
AND COVENANT NOT TO COMPETE
This Agreement Creates Important Obligations Which Are Binding.
Please Read It In Full Before You Sign It.
I recognize that H Power Corp. (the "Company") is engaged in a continuous
program of research, development and distribution of fuel cells, fuel cell power
systems, products integrating fuel cells or fuel cell systems, and related
technologies, systems and products. I understand that it is part of my
responsibility as an employee to assist the Company in such endeavors.
I recognize the importance of protecting the Company's rights to
inventions, discoveries, ideas and confidential information, and any similar or
related rights.
Therefore, in consideration of my employment by the Company and the
compensation received by me from the Company from time to time, I agree to the
following terms:
1. DEFINITIONS
For the purposes of this Agreement:
(a) The term "Company's Confidential Information" includes any of the
following:
(i) all trade secrets or secret information, whether of technical
or business nature, belonging to the Company (or information
belonging to third parties which the Company shall be under
obligation to keep secret) which I may acquire or develop in
the course of my employment;
(ii) the Company's business methods and practices;
(iii) compilations of data or information concerning the Company's
business, including but not limited to:
(A) financial information whether related to the Company
generally, or to particular products, services,
geographic areas, or time periods;
(B) supply and service information, such as goods and
services suppliers' names or addresses, terms of supply
or service contracts or of particular transactions;
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H Power Corp.
Employee Non Disclosure Agreement
(C) marketing information, such as details about past,
present or proposed marketing programs by or on behalf
of the Company, sales forecasts or results of marketing
efforts or information about impending transactions;
(D) personnel information, such as compensation or other
terms of employment, employee lists, training methods or
other employee information;
(iv) the names of the Company's customers, the nature of the
Company's relationships with these customers, and the business
of the Company's customers;
(v) any other information not generally known to the public
including information about the Company's operations, plans,
personnel, products or services which, if misused or
disclosed, could have a reasonable possibility of adversely
affecting the business of the Company.
(b) The term "Inventions" means all discoveries, developments, designs,
improvements, inventions, formulae, processes, techniques, computer
programs, strategies, and data, whether or not patentable under
patent, copyright or similar statutes.
2. NON-DISCLOSURE OF COMPANY'S CONFIDENTIAL INFORMATION
At all times during and subsequent to my employment, I agree to keep in
strictest confidence and trust the Company's Confidential Information that
is disclosed to me or to which I have access. I will take all reasonable
action, that the Company deems necessary or appropriate to prevent
unauthorized use or disclosure of or to protect the Company's interests in
the Company's Confidential Information. I will not use or disclose the
Company's Confidential Information without the written consent of the
Company, except as may be necessary in the ordinary course of performing
my duties for the Company. However, I shall not be required to treat as
confidential any of the Company's Confidential Information which:
(i) was in my possession or was known to me prior to receipt from
the Company, or
(ii) is or becomes public knowledge without my fault, or
(iii) is or becomes lawfully available to me from a source other
than the Company.
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H Power Corp.
Employee Non Disclosure Agreement
3. SURRENDER OF CONFIDENTIAL INFORMATION
Upon termination of my employment with the Company, for whatever reason, I
will promptly surrender to the Company all copies, in whatever form, of
the Company's Confidential Information in my possession, custody or
control, and I will not take with me any of the Company's Confidential
Information that is embodied in a tangible medium of expression.
4. ASSIGNMENT OF RIGHTS TO COMPANY'S CONFIDENTIAL INFORMATION
I hereby assign to the Company any rights I now have or may hereafter
acquire in the Company's Confidential Information.
5. EMPLOYEE INVENTIONS
(a) Disclosure and Ownership of Inventions
(i) During my service as an employee of the Company and for a
period of six (6) months thereafter, I will promptly and fully
disclose to the Company (and to any persons designated by it)
all Inventions generated, made, conceived or reduced to
practice or learned by me, either alone or jointly with
others, which, in any way, result from or is suggested by any
work which I may do for or on behalf of the Company; or relate
to or are useful in the business of the Company; or result
from the use of premises or property owned, leased, licensed,
or contracted for by the Company. The Company shall have all
rights to such Inventions, whether they are patentable or not.
(ii) I understand that the Company will have no rights pursuant to
this Agreement in any Invention of mine made during the term
of my employment by the Company if such Invention has not
arisen out of or by reason of my work with the Company, and
does not relate to the business or operations of the Company,
although I agree to inform the Company of any such Invention.
(b) Assignment of Inventions
I agree that my services on behalf of the Company are works made for
hire and all Inventions specified in Paragraph 5(a)(i) 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, copyrights,
trademarks, trade secrets, and other rights and protections in
connection therewith. I hereby assign to the Company any and all
rights I now have or may hereafter acquire in such Inventions. I
further agree, as to all such Inventions,
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H Power Corp.
Employee Non Disclosure Agreement
to assist the Company in every proper way (but at the Company's
expense) to obtain, and from time to time enforce, patents,
copyrights, trademarks, trade secrets, and other rights and
protections relating to said Inventions in any and all countries,
and to that end I will execute all documents for use in applying for
and obtaining such patents, copyrights, trademarks, trade secrets
and other rights and protections on, and enforcing, such Inventions,
as the Company may desire, together with any assignments thereof to
the Company or persons designated by it.
My obligation to assist the Company in obtaining and enforcing
patents, copyrights, trademarks, trade secrets, and other rights and
protections relating to such Inventions in any and all countries
shall continue beyond the termination of my employment by the
Company, but the Company shall compensate me at a reasonable rate
after my termination for time actually spent by me, at the Company's
request, on such assistance. In the event the Company is unable,
after reasonable effort, to secure my signature on any document or
documents needed to apply for or prosecute any patent, copyright,
trademark, trade secret, or other right or protection relating to an
Invention whether because of my physical or mental capacity or for
any other reason whatsoever, I hereby irrevocably designate and
appoint the Company its duly authorized officers and agents as my
agent coupled with an interest and attorney-in- fact, to act for and
in my behalf and stead to execute and file any such application or
applications and to do all other lawfully permitted acts to further
the prosecution and issuance of patents, copyrights, trademarks,
trade secrets, or similar rights or protections thereon with the
same legal force and effect as if executed by me.
(c) Previous Inventions
As a matter of record, I have identified in Exhibit A, attached
hereto, all Inventions that have been generated or conceived or
first reduced to practice or learned by me, alone or jointly with
others, prior to my employment by the Company, which I desire to
remove from the operation of this Agreement. I represent and warrant
that such list is complete. If I do not attach a list hereto, I
represent that I have made no such Inventions at the time of signing
this Agreement.
6. LIMITATION ON OTHER ACTIVITIES AND COMPETITION
(a) During Employment
I agree that while I am employed by the Company I will not, without
the Company's express written consent, engage in any consulting,
employment or business that is competitive with the Company. In
furtherance and not in limitation of the generality of the preceding
sentence, I shall not, for myself or on behalf of any person or
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H Power Corp.
Employee Non Disclosure Agreement
organization, directly or indirectly, compete with the Company in
the development, manufacture, sale, solicitation or servicing of any
then existing product of, or service or business engaged in by, the
Company, or any other product of, or service or business engaged in,
or under development by, the Company.
(b) After Termination of Employment
If I have had significant contact with customers of the Company
while employed by the Company, or if I have been materially involved
in the design, development or implementation of the Company's
present or planned major products or services, then I agree that the
provisions of Paragraph 6(a) hereinabove shall be expanded to
prohibit my competing with the Company for twelve (12) months
following the termination of my employment.
7. NO CONFLICTING OBLIGATIONS
(a) During Employment
I represent and warrant to the Company that I have no interest or
obligation which is inconsistent with or in conflict with this
Agreement, or which would prevent, limit or impair my performance of
any part of this Agreement. I agree to notify the Company
immediately if any such interest or obligation arises.
(b) After Termination of Employment
For twelve (12) months following the termination of my employment by
the Company, I agree that if I accept employment, whether as a
consultant, employee, director, trustee or otherwise, with any
person or organization, or engage in any type of activity on my
behalf or on behalf of any person or organization that is in any way
related to the products, services or business of the Company, I
shall notify the Company in writing, within thirty (30) days
thereof, of the character of each such activity, and of the name and
address of each such person or organization by which I am so
employed.
8. CONFIDENTIALITY OF PREVIOUS EMPLOYERS
I represent that my performance of all the terms of this Agreement does
not and will not breach any agreement to keep in confidence proprietary
information acquired by me in confidence or in trust prior to the
execution of this Agreement. I have not entered into, and I agree that I
will not enter into, any agreement, either written or oral, in conflict
with this Agreement.
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H Power Corp.
Employee Non Disclosure Agreement
I represent 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 present or former employer or client that
are not generally available to the public, unless I have obtained express
written authorization from the present or former employer or client for
their possession and use.
I also understand that at no time during my service to the Company am I to
breach any obligation of confidentiality that I have to present or former
employers or clients, and I agree that I shall fulfill all such
obligations to present or former employers and clients during my service
to the Company.
9. ENFORCEMENT
I agree that in the event of a breach or threatened breach of the
provisions of this Agreement, the Company's remedies at law would be
inadequate, and the Company shall be entitled to an injunction to enforce
such provisions (without any bond or other security being required), but
nothing herein shall be construed to preclude the Company from pursuing
any remedy at law or in equity for any breach or threatened breach.
10. CITIZENSHIP/ALIENAGE
I assert that I am a citizen or national of the United States, or an alien
lawfully admitted for permanent residence, or an alien who is authorized
under a work permit or by the Attorney General of the United States to be
hired, recruited or referred for employment with the Company.
11. MISCELLANEOUS
(a) Successors
The rights and obligations under this Agreement shall survive the
termination of my service to the Company in any capacity and shall
inure to the benefit of and shall be binding upon: (i) my heirs and
personal representatives, and (ii) the successors and assigns of the
Company.
(b) Governing Law
The laws of the State of New Jersey shall govern all questions
relative to interpretation and construction of this Agreement and to
its performance.
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H Power Corp.
Employee Non Disclosure Agreement
(c) Severability.
If any provision of this Agreement is wholly or partially
unenforceable for any reason, such unenforceability shall not affect
the enforceability of the balance of this Agreement, and all
provisions of this Agreement shall, if alternative interpretations
are applicable, be construed so as to preserve the enforceability
hereof.
(d) Waiver.
The Company's waiver of any default by me shall not constitute a
waiver of its rights under this Agreement with respect to any
subsequent default by me.
I HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO ITS TERMS.
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EMPLOYEE
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Address
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Date
ACCEPTED AS A CONDITION OF EMPLOYMENT
H POWER CORP.
BY:
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Date
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H Power Corp.
Employee Non Disclosure Agreement
EXHIBIT A
The following is a complete list of all Inventions relative to the subject
matter of my service as an employee of H Power Corp. (the "Company") that have
been generated or conceived or first reduced by practice or learned by me, alone
or jointly with others, prior to my employment by the Company.
LIST OF INVENTIONS
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[ ] Additional sheets attached.
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Employee
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