SECOND AMENDED NON-DISCLOSURE AND INVENTIONS AGREEMENT
EXHIBIT
10.3
SECOND
AMENDED NON-DISCLOSURE AND INVENTIONS AGREEMENT
This
Second Amended Non-Disclosure and Inventions Agreement dated as of December
7,
2007 by and between Matritech, Inc., a Delaware corporation (the “Company”), and
Xxxxxxx X. Xxxxx (the “Employee”) replaces and supersedes the the Amended
Non-Disclosure and Inventions Agreement dated October 5, 2007.
WHEREAS,
the Employee is presently employed by the Company as its Chairman and Chief
Executive Officer;
WHEREAS,
the Employee and the Company agree that certain information regarding the
Company’s product research and development, its business planning and marketing
strategy, and other Company proprietary information and trade secrets relating
to the products, services and business of the Company that the Employee may
obtain during the course of his services for the Company should be used
exclusively for the benefit of the Company;
NOW,
THEREFORE, in consideration of the mutual covenants and conditions herein
contained, the parties hereto agree as follows:
1. Term. The
term of this Agreement shall commence as of the date of this Agreement and
shall
terminate when the Employee shall cease to serve the Company, or any affiliate
or subsidiary thereof, in the capacity of an employee or officer (such service
is described herein as maintaining a “Business Relationship” with the
Company). The parties agree that service only as a director of the
Company shall not constitute maintaining a Business Relationship for purposes
of
this Agreement during any period when (a) the Employee has no employment
relationship with the Company and (b) the Company is not an operating company
(after it has sold substantially all its assets).
2. Proprietary
Information. For purposes of this Agreement, the term
“Proprietary Information” shall mean all knowledge and information which the
Employee has acquired or may acquire as a result of, or related to, his Business
Relationship with the Company concerning the Company’s business, finances,
operations, strategic planning, research and development activities, products,
molecules, organisms, laboratory materials, prototypes, software programs,
firmware, designs, systems, improvements, applications, processes, trade
secrets, services, cost and pricing policies, and including, but not limited
to,
information relating to formulae, diagrams, schematics, notes, data, memoranda,
methods, know-how, techniques, inventions, and purchasing, merchandising and
selling strategies. Notwithstanding the foregoing sentence, but
subject to Section 4 hereof, such Proprietary Information does not include
(i)
information which is or becomes publicly available (except as may be disclosed
by the Employee in violation of this Agreement), (ii) information acquired
by
the Employee from a third-party source other than the Company or any of its
employees, consultants or shareholders, which source legally acquired such
information directly from the Company, or (iii) information of a general nature
and specifically information regarding the
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biochemical
and biotechnological industries known to the Employee prior hereto or acquired
by the Employee during the term hereof by reason of his other business
activities, regardless of its incorporation into Proprietary Information
produced by him or others for the Company hereunder.
3. Nondisclosure
Obligation. The Employee agrees that he will not at any time,
either during or after the term of this Agreement, without prior written consent
of a majority of the members of the Board of Directors of the Company other
than
the Employee, divulge or disclose to anyone outside the Company, or appropriate
for his own use or the use of any third party, any such Proprietary Information,
and will not during his engagement by the Company or at any time thereafter,
disclose or use or attempt to use any such Proprietary Information for his
own
benefit, or the benefit of any third party, or in any manner which may injure
or
cause loss or may be calculated to injure or cause loss to the
Company. The Employee’s obligation not to disclose information to
third parties shall lapse on the fifth anniversary of the termination of this
Agreement. The Employee shall obtain from personnel, agents or other
representatives employed or engaged by him to perform any work for the Company
an agreement which contains the provisions of this Agreement.
The
Employee further agrees not to make any notes, memoranda, drawings or models
relating to any matter within the scope of the Proprietary Information at any
time otherwise than for the benefit of the Company, and, either during or after
the termination of the Agreement, to use or permit to be used any notes,
memoranda, report, sketches, technical data, drawings or models otherwise than
for the benefit of the Company. Upon termination of his Business
Relationship with the company, the Employee shall deliver all such notes,
memoranda, reports, sketches, technical data, drawings and models and any other
related information and all copies thereof made during the term of this
Agreement to the Company at its principal executive office. The terms
and provisions of this Section 3 shall apply with equal force and effect to
the
Employee’s work product hereunder and to all other property of the
Company.
4. Assignment
of Inventions. It is expressly understood and agreed that any and
all right or interest of the Employee in any business strategies and planning,
vendor and customer lists, costs and pricing policies, designs systems,
formulas, molecules, organisms, prototypes, products, trade secrets, inventions,
discoveries, know-how, technical information, materials developed, or otherwise
obtained by the Employee during the term of this Agreement which directly or
indirectly relate to or arise out of the services rendered to the Company by
the
Employee or the Proprietary Information (the “Inventions”) are works for hire
and are hereby assigned to the Company by the Employee and shall be the sole
and
exclusive property of the Company. In addition, in consideration of
this Agreement, the sale of stock of the Company to the Employee and the
parties’ mutual interest in nuclear matrix proteins and the commercial
applications thereof, the Employee agrees that he will work exclusively with
the
Company in areas relating to nuclear matrix proteins during the term of this
Agreement and for a period of one year thereafter and further agrees that the
term “Inventions” shall include all inventions, discoveries, know-how, technical
information, improvements and other
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information
relating to nuclear matrix proteins which prior to the date hereof, during
the
term of this Agreement are made, conceived (whether or not reduced to practice)
or become known to the Employee. The Employee agrees that he will
promptly disclose to the Company any and all such Inventions in a manner that
will enable the Company to use effectively the Inventions, and that, upon
request of the Company, he will execute and deliver any and all documents or
instruments and take any other action which the Company shall deem necessary
to
assign to and vest in the Company, to perfect copyright and patent protection
with respect to, or to protect the Company’s interest in, all of its rights and
interests in and to such Inventions. The obligations of this Section
4 shall continue beyond the termination of this Agreement with respect to such
Inventions and shall be binding upon his heirs, legal representatives,
successors and assigns. The Company agrees to pay all copyright and
patent fees and expenses incurred by the Employee for any assistance rendered
to
the Company pursuant to the foregoing.
5. Absence
of Conflicting Agreements. The Company does not desire to acquire
from the Employee any trade secret, confidential know-how or confidential
information that he may have acquired from others. Accordingly, the
Employee represents and warrants that he is free to divulge to the Company,
without any obligation to, or violation of any right of others, any and all
information, know-how, technical information, practices and techniques which
the
Employee will and is required to describe, demonstrate, divulge or in any other
manner make known to the Company under this Agreement. The Employee
represents and warrants that he is not a party to any agreement or arrangement,
whether oral or written, which would constitute a conflict of interest with
this
Agreement or would prevent him from carrying out his obligations to the Company
under this Agreement. The Employee agrees to exonerate, indemnify,
and hold harmless the Company from and against any and all liability, loss,
cost, expense, damage, claims or demands for actual or alleged violation of
the
rights of others in and to any trade secret, know-how or other confidential
information by reason of the Company’s receipt or use of the Employee’s services
or the Inventions, or otherwise connection therewith.
6. Non-Competition
Restriction. The Employee acknowledges that he has gained or will
gain extensive and valuable experience and knowledge in the business conducted
by the Company and has had or will have extensive contacts with the customers,
suppliers, investors, employees and/or consultants of the
Company. The Employee recognizes that it is critical to the ongoing
success of the Company that it preserve its goodwill and protect its proprietary
rights and its other important business interests.
During
any period in which the Employee maintains a Business Relationship with the
Company and for a period of one year thereafter, the Employee shall not,
directly or indirectly, engage in (whether as an officer, employee, consultant,
director, proprietor, agent, partner or otherwise) or have an ownership interest
in, or participate in the financing, operation, management or control of, any
person, firm, corporation or business in competition with the Company or any
of
its subsidiaries or affiliates.
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7. Restriction
on Solicitation. During any period which the Employee renders
services to the Company and for a period of one year thereafter, the Employee
shall not recruit or otherwise solicit, entice and induce any employees of
the
Company or any of its subsidiaries or affiliates to terminate their employment
with, or otherwise cease their relationship with the Company or any of its
subsidiary or affiliates, in order to engage in any activity for any business,
firm, corporation or any other entity that conducts research with respect to,
develops, produces or manufactures any products or techniques or provides
services similar to those developed, produced, manufactured or provided by
the
Company.
8. General. This
Agreement constitutes the entire Agreement between the parties relative to
the
subject matter hereof, and supersedes all proposals or agreements, written
or
oral, and all other communications between parties relating to the subject
matter of this Agreement, including without limitation the original
Non-Disclosure and Inventions Agreement between the parties dated December
4,
1987.
No
provision of this Agreement shall be waived, amended, modified, superseded,
cancelled, renewed or extended except in a written instrument signed by the
party against whom any of the foregoing actions is asserted. Any
waiver shall be limited to the particular instance and for the particular
purpose when and for which it is given.
The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way effect the validity, legality or enforceability of any other
provision of this Agreement.
This
Agreement and all rights hereunder are personal to the Employee and may not
be
transferred or assigned by the Employee at any time. The Company may
assign its rights, together with its obligations hereunder, to any affiliate
or
successor in connection with any consolidation, merger, sale, transfer or other
disposition of all or substantially all of the Company’s business and
assets. In the event of any consolidation or merger of the Company
with or into any other corporation, or the sale or conveyance of all or
substantially all of the assets of the Company to another corporation, the
surviving or acquiring corporation shall be entitled to the rights and benefits
of the Services provided under this Agreement, and become obligated to perform
all of the terms and conditions hereof. The foregoing
notwithstanding, the Company may transfer Inventions without
limitation.
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the internal laws of the Commonwealth of
Massachusetts.
All
notices provided for in this Agreement shall be given in writing and shall
be
effective when either served by personal delivery, express overnight courier
service, or by registered or certified mail, return receipt requested, addressed
to the parties at their respective addresses herein set forth, or to such other
address or addresses as either party may later specify by written notice to
the
other.
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This
Agreement may be executed in duplicate counterparts, which, when taken together,
shall constitute one instrument and each of which shall be deemed to be an
original copy.
The
provisions of Sections 2, 3, 4, 5, 6, 7 and 8 shall survive the termination
or
expiration of this Agreement as a continuing agreement of the Company and the
Employee.
The
Employee acknowledges that because of the nature of the business of the Company
and the subject matter of this Agreement, a breach of this Agreement will cause
substantial injury to the Company for which money damages will not provide
an
adequate remedy, and the Employee agrees that the Company shall have the
right to obtain injunctive relief, including the right to have the
provisions of this Agreement specifically enforced by any court having equity
jurisdiction, in addition to, and not in limitation of, any remedies at law
that
the Company may have.
Nothing
herein contained shall be construed as prohibiting the Company or the Employee
from pursuing any other remedies available to either for breach by the other
under this Agreement or applicable law.
Subject
to the rights of the Company and the Employee as contained in the preceding
paragraph, any dispute, controversy or claim arising out of, in connection
with,
or in relation to this Agreement or the breach of any of the provisions hereof
shall be settled by arbitration in Boston, Massachusetts, pursuant to the rules
then obtaining of the American Arbitration Association. Any award
shall be final, binding and conclusive upon the parties and a judgment rendered
thereon may be entered in any court having competent jurisdiction
thereof. The fees and expenses relating to any such arbitration shall
be borne equally by the Company and the Employee. Each party shall be
responsible for his or its own legal fees in connection with any such
arbitration.
Remainder
of Page Intentionally Blank
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IN
WITNESS WHEREOF, parties have executed this Agreement as of the day and year
first above written.
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MATRITECH,
INC.
By:
/s/ Xxxxx X. Corbet_________
President
EMPLOYEE:
/s/
Xxxxxxx X. Chubb___________
Xxxxxxx
X. Chubb______________
Name
____________________________
Street
Address
____________________________
City State Zip
Code
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