Nondisclosure, Noncompetition and Invention Assignment Agreement
Nondisclosure,
Noncompetition and
This Nondisclosure, Noncompetition and
Invention Assignment Agreement (this “Agreement”) is made by and between Senesco
Technologies, Inc., a Delaware corporation (hereinafter “Employer”) and Xxxxxx
Xxxxxx, Ph.D. (“Employee”), to be effective as of May 25, 2010:
1. Confidential Information and
Company Property.
1.1 Employee
acknowledges that Employer and its subsidiaries and their respective successors
(hereinafter collectively, the “Company”) possess certain Confidential
Information that has been and may be revealed to or learned by Employee during
Employee’s employment with the Company. Employee acknowledges that
the term “Confidential Information” includes all information that has or could
have commercial value or other utility in the Company’s Business, or the
unauthorized disclosure of which could be detrimental to the Company’s
interests, whether or not such information is specifically identified as
Confidential Information by the Company.
1.2 Employee
acknowledges that the Company’s Business includes all businesses in which the
Company is planning or preparing to engage and all businesses in which the
Company is currently engaged as well as such other businesses as the Company may
enter, plan to enter, or prepare to enter subsequent to the date that this
Agreement is executed.
1.3 By
way of example and not limitation, Confidential Information includes any and all
information, whether or not meeting the legal definition of a trade secret,
concerning the Company’s actual, planned or contemplated (i) marketing plans,
business plans, strategies, forecasts, budgets, projections and costs; (ii)
personnel information; (iii) customer, vendor and supplier lists; (iv) customer,
vendor and supplier needs, transaction histories, contacts, volumes,
characteristics, agreements and prices; (v) promotions, operations, sales,
marketing, and research and development; (vi) business operations, internal
structures and financial affairs; (vii) software and operating systems and
procedures; (viii) pricing structure of the Company’s services and products;
(ix) proposed services and products; (x) contracts with other parties; (xi)
performance characteristics of the Company’s products; and (xii) Inventions and
Works as defined in Section 4. Confidential Information does not
include information that has become widely known to the public other than
through the improper disclosure of Employee. Notwithstanding anything
to the contrary in this Agreement, however, Confidential Information includes
any and all information that the Company is obligated to maintain as
confidential.
1.4 During
the term of Employee’s employment with the Company and thereafter, Employee will
not, directly or indirectly, use or disclose to anyone, or authorize disclosure
or use by anyone of, any of the Confidential Information revealed to, learned by
or created by Employee during the course of Employee’s employment with the
Company, unless such use or disclosure is both consistent with the Company’s
obligations and is for the sole purpose of carrying out Employee’s duties to the
Company. Employee further agrees that Employee’s will take all
reasonable efforts to protect the confidentiality of Confidential
Information.
1.5 Employee
acknowledges that Confidential Information is essential to the Company’s
Business. Employee will not remove from the Company’s place of
business any document or other medium containing Confidential Information, or
other Company property, without the permission of the Company, which permission
the Company may in its absolute discretion withhold. Employee agrees
that Employee will not make any copies of Confidential Information or other
Company property except as authorized by the Company. Employee agrees
that at the cessation of Employee’s employment Employee will return to the
Company immediately any and all Company property and documents and other media
containing Confidential Information (and all copies thereof) in Employee’s
possession, custody or control. The Company’s property includes, but
is not limited to, all financial books, records, instruments and documents;
customer lists; data; reports; programs; software; hardware; tapes; rolodexes;
telephone and address books; card decks; listings; programming; customer files
and records; and any and all other instruments, records and documents recorded
or stored on any medium whatsoever relating or pertaining, directly or
indirectly, to corporations, governmental entities and other persons and
entities with whom the Company has or has had contractual relations, the
services or products provided by the Company, or the Company’s Business or
business affairs.
1.6 If
Employee is requested or required (by oral questions, interrogatories, requests
for information or documents, subpoena, civil investigative demand or other
process) to disclose Confidential Information, Employee will immediately notify
the Company of such request or requirement so that the Company may take any
action deemed by the Company to be necessary or advisable to protect the
confidentiality of the Confidential Information. Unless the Company
waives the protections of this Agreement in writing, Employee agrees to take all
lawful steps to protect the confidentiality of the Confidential Information and
to cooperate fully with the Company’s efforts to protect the confidentiality of
the Confidential Information, including, but not limited to, seeking a
protective order and refusing to produce such Confidential Information unless
compelled to do so by a final order that has been upheld by the highest
appellate court having jurisdiction over the matter. If Employee is
ultimately compelled to disclose Confidential Information, Employee agrees to
take all lawful efforts to limit the dissemination of, and maintain the
confidentiality of, the Confidential Information. Employer agrees to
reimburse Employee for reasonable expenses incurred by Employee in complying
with this Section 1.6.
2. Employee Responsibilities
and Restrictive Covenants.
2.1 Employee
agrees to devote Employee’s best efforts and entire work time and attention to
the Company’s Business during the term of Employee’s employment with the
Company. While the Company does not seek to interfere with the
off-duty and personal conduct of its employees, certain conduct may interfere
with the Company’s legitimate business interests. Employee agrees
that, during the term of Employee’s employment, except as otherwise approved in
writing by the Company, which approval the Company may in its absolute
discretion withhold, Employee will not engage in any outside business activity
that conflicts with, or adversely affects, Employee’s job
performance. Employee must disclose to the Board of Directors his
involvement in any outside business activity that may conflict with or be
adverse to the interests of the Company. Employee further agrees
that, during the term of Employee’s employment, except as otherwise approved in
writing by the Company, which approval the Company may in its absolute
discretion withhold, Employee will not engage in:
(a) Employment
that conflicts with Employee’s work schedule, duties, or
responsibilities;
(b) Employment
that is incompatible with Employee’s employment with the Company;
(c) Employment
that impairs or has a detrimental effect on Employee’s work performance with the
Company;
(d) Employment
that requires Employee to conduct work or related activities on the Company’s
property during Employee’s working hours or to use the Company’s facilities
and/or equipment.
2.2 Employee
further agrees that Employee will not take any action inconsistent with the
fiduciary relationship of an employee to his corporate employer. This
shall not prohibit Employee from owning stock or other securities of a
competitor of the Company or any subsidiary or affiliate of such competitor so
long as Employee’s ownership does not interfere with Employee’s job
performance.
2.3 Employee
agrees that, for a period of twelve (12) months after the cessation of
Employee’s employment, Employee will not, either directly or indirectly, or for
himself/herself or through, on behalf of, or in conjunction with any person,
persons or legal entity, own, maintain, operate, engage in, assist, be employed
by, or have any interest in any business engaging in or planning to be engaged
in the Company’s business in which Employee works.
2.4 Employee
agrees that, during the term of Employee’s employment with the Company, and for
a period of twelve (12) months thereafter, Employee will not, either directly or
indirectly, or for himself/herself or through, on behalf of or in conjunction
with any person, persons or legal entity, persuade, induce or attempt to
persuade or induce any employee or person who has provided services to the
Company as an employee or independent contractor or employee of an independent
contractor to leave his/her employment with the Company or to refrain from
providing services to the Company.
2.5 Employee
agrees that, for a period of twelve (12) months after the cessation of
Employee’s employment, Employee will promptly inform Employer in writing of any
employment or other business affiliations that Employee has with any business or
business entity offering or planning to offer a service or product in
competition with the Company. Such information will include, but not
be limited to (i) the name and address of the business or business entity with
which Employee has such a relationship; and (ii) the general nature of
Employee’s business-related activities. To the extent requested by
Employer, Employee agrees to provide such additional information as Employer
reasonably believes to be necessary for Employer to ascertain whether Employee
is complying with this Agreement.
2.6 Employer
and Employee agree that Sections 2.1 through 2.3 hereof are not intended to, and
do not, prevent ownership of up to 5% or $100,000, whichever is less, of any
class of equity or debt securities that are traded on a national securities
exchange.
3. Company
Access.
3.1 Employee
agrees and consents that, during the term of Employee’s employment with the
Company and thereafter, the Company may review, audit, intercept, access and
disclose all messages created, stored, received or sent over the electronic mail
and Internet access systems provided by the Company, with or without notice to
Employee, and that such review, audit, interception, access or disclosure may
occur during or after working hours. Employee further consents and
agrees that the Company may, at any time, access, review and disclose the
contents of all computers, computer disks and other data-storage equipment and
devices, files, desks, drawers, closets, cabinets and work stations that are
either on the Company’s premises or owned or provided by the
Company.
4. Intellectual
Property.
4.1 Employee
agrees to disclose fully, promptly and in writing to Employer any and all
Inventions and Works, separately defined below, that are conceived, made,
reduced to practice, developed, authored, created, drawn or written at any time
while Employee is employed by the Company and for a period of six (6) months
thereafter. Employee will generate and provide to the Company
adequate and current written records of all Inventions and Works in the form of
notes, sketches, drawings, reports, notebooks or other documents relating
thereto or in such other form as will be requested by the Company, which records
and any copies thereof will be and will remain the exclusive property of
Employer and will be available to the Company at all times.
(a)
Employer and Employee agree that the term “Inventions” is defined in this
Agreement to include any and all new or useful ideas, developments, discoveries,
improvements, designs, formulas, modifications, trademarks, service marks, trade
secrets, and other intellectual property, whether patentable or not (including
without limitation any technology, computer programs, software, test, concept,
idea, apparatus, device, mechanism, equipment, machinery, process, method,
composition of matter, formula or technique), and all know-how related thereto,
that Employee conceives, makes, reduces to practice, or develops, solely or
jointly with others, that (i) relate to the actual or contemplated business,
work or activities of the Company, (ii) result from or are suggested by any work
that Employee has done or may do on behalf of the Company, or by any information
that Employee may receive while employed by the Company, or (iii) are developed,
tested, improved or investigated either in part or entirely on time for which
Employee was paid by the Company, or with the use of premises, equipment or
property provided, owned, leased or contracted for by or on behalf of the
Company.
4.2 Employer
and Employee agree that the term “Works” is defined in this Agreement to include
any and all materials for which copyright protection may be obtained, including
without limitation literary works (including books, pamphlets, articles and
other writings), mask works, artistic works (including designs, graphs,
drawings, blueprints and other graphic works), computer programs, compilations,
recordings, photographs, motion pictures and other audio-visual works that
Employee authors, conceives, creates, draws, makes or writes, solely or jointly
with others, that (i) relate to the actual or contemplated business, work or
activities of the Company, (ii) result from or are suggested by any work that
Employee has done or may do on behalf of the Company, or by any information that
Employee may receive while employed by the Company, or (iii) are developed,
tested, improved or investigated either in part or entirely on time for which
Employee was paid by the Company, or with the use of premises, equipment or
property provided, owned, leased or contracted for by or on behalf of the
Company.
4.3 Employee
agrees to assign, transfer and convey, and hereby assigns, transfers and
conveys, to Employer all of the right, title and interest in and to any and all
such Inventions and Works that Employee has or may acquire in such Inventions or
Works that are conceived, made, reduced to practice, developed, authored,
created, drawn or written at any time while Employee is employed by the
Company. Employee further agrees that for a period of six (6) months
after the end of the employment relationship, Employee shall notify and inform
Employer of any and all Inventions and Works Employee conceives, makes, or
reduces to practice, develops, authors, or creates, and agrees to assign,
transfer and convey, and hereby assigns, transfers and conveys, to the Company
all of the right, title and interest in and to any and all such Inventions and
Works that Employee conceives, makes, reduces to practice, develops, authors, or
creates, drawn or written, arising from, based upon, relating to, utilizing, or
employing Company’s proprietary, confidential, or trade secret information or
the use of the Company’s facilities. Employee agrees that Employer
will be the sole owner of all patents, copyrights, trademarks and other
intellectual property rights in connection therewith, and agrees to take all
such actions as may be requested by the Company during Employee’s employment
with the Company and at any time thereafter, with respect to any such Inventions
or Works to confirm or evidence such assignment, transfer, conveyance or
ownership, and to assist in the Company’s maintenance, enforcement, licensing,
assignment, transfer, or conveyance of rights in respect of the Inventions or
Works.
4.4 By
way of example and not limitation, at any time and from time to time, upon the
request of the Company, Employee agrees to execute, acknowledge, swear to, seal
and deliver to the Company any and all lawful instruments, documents and papers,
give evidence and do any and all other lawful acts that, in the opinion of the
Company, are or may be necessary or desirable to document such assignment,
transfer and conveyance or to enable the Company to file and prosecute
applications for, and to acquire, maintain and enforce any and all patents,
trademarks, copyrights and other property rights under United States, local,
state or foreign law with respect to, any such Inventions or Works, or to obtain
any extension, validation, reissue, continuance or renewal of any such patent,
trademark, copyright or other intellectual property right. By way of
further example and not limitation, Employee agrees to meet with Company
representatives or attorneys for the purpose of initiating, maintaining or
defending litigation, administrative or other proceedings, and to participate
fully in litigation, administrative or other proceedings as requested by the
Company. In the event that the Company may be unable, for any reason
whatsoever, after reasonable effort, to secure Employee’s signature on any
patent, copyright, trademark or other intellectual property application or other
papers, Employee hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Employee’s agent and attorney-in-fact to
act for and on behalf of Employee to execute, acknowledge, swear to, seal and
deliver to the Company and file any such application or applications or other
papers, and to do all other lawfully permitted acts to further the provisions of
this Section 4.
4.5 Employer
agrees to reimburse Employee for reasonable expenses incurred by Employee in
complying with the provisions of Sections 4.3 and 4.4 of this
Agreement. Employer and Employee agree that Employee is not entitled
to additional compensation beyond that paid to Employee for the period of time
that Employee is employed by the Company, which compensation, along with
Employer’s understandings set forth in this Agreement, is expressly acknowledged
to be adequate consideration for all of Employee’s promises and obligations set
forth in this Agreement.
4.6 Employee
expressly acknowledges and states that all Works that are made by Employee
(solely or jointly with others) are being created at the instance of Employer
and are “works made for hire,” as that term is defined in the Copyright Act of
1976, 17 U.S.C. § 101. In the event that such laws are inapplicable
or in the event that any such Works, or any part thereof, are determined by a
court of competent jurisdiction not to be a work made for hire, this Agreement
will operate as an irrevocable and unconditional assignment by Employee to
Employer of all Employee’s right, title and interest (including, without
limitation, all rights in and to the copyrights throughout the world, including
the right to prepare derivative works and the rights to all renewals and
extensions) in the Works in perpetuity.
4.7 Employee
represents that Exhibit A to this
Agreement describes all Inventions and Works, whether patentable or not, that
have been conceived, made, reduced to practice, developed, authored, created,
drawn or written prior to Employee’s employment by the Company; provided,
however, that Employee has not disclosed in Exhibit A information
that is a trade secret belonging to another, or that is the subject of a
contract preventing Employee’s disclosure of such information to the
Company.
5. Employee
Representations.
5.1 Employee
represents and warrants that this Agreement and Employee’s employment by the
Company do not conflict with and will not be constrained by any prior business
relationship or contract, and that Employee does not possess trade secrets or
other proprietary information arising out of any prior business relationship or
contract that, in Employee’s best judgment, would be utilized in connection with
Employee’s employment with the Company. Employee further agrees that
Employee will not disclose any such trade secrets or other proprietary
information to the Company or others.
5.2 Employee
represents and warrants that if Employee’s employment with the Company were to
terminate, Employee could earn a living while fully complying with all of the
terms of this Agreement and that the restrictions contained in this Agreement
are reasonable and necessary to protect the Company’s legitimate interests in
its Confidential Information and customer relationships.
6. Interpretation.
6.1 Wherever
this Agreement contemplates that Employee will have an obligation or restriction
at or after the term of Employee’s employment with the Company, Employee agrees
that that obligation or restriction will exist without regard to which party to
the Agreement terminates the employment relationship, and without regard to the
reason (or lack thereof) for the termination of the employment
relationship.
6.2 Employer
and Employee agree that this Agreement constitutes the entire understanding and
agreement of Employee and the Company with respect to the subject matter of this
Agreement, and supersedes all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied, written or oral,
between the Company and Employee.
6.3 Employer
and Employee agree that if any provision of this Agreement, or the application
thereof, will for any reason and to any extent be invalid or unenforceable, such
provision will be deemed severable and the remainder of this Agreement will
remain valid and fully enforceable.
6.4 Employer
and Employee agree that if all or any portion of a covenant is held unreasonable
or unenforceable by a court or agency having valid jurisdiction in a final
decision, Employee will be bound by any lesser covenant subsumed within the
terms of such covenant, which lesser covenant imposes the maximum duty permitted
by law, as if the resulting covenant were separately stated in and made a part
of this Agreement.
6.5 Employer
and Employee agree that the headings in this Agreement are included solely for
convenience and will be given no effect in the construction of this
Agreement.
6.6 Employer
and Employee agree that, although this Agreement was drafted by Employer, it
accurately reflects both parties’ intent and understanding and should not be
presumptively construed against the Company in the event that there is any
dispute over the meaning or intent of any provision.
7. Enforcement.
7.1 If
requested by Employer, Employee agrees, at any time during the term of
Employee’s employment and thereafter, to reaffirm in writing the obligations
imposed by, and Employee’s past compliance with, any or all of the provisions of
this Agreement.
7.2 Employee
agrees that if Employee engages in any activities prohibited by this Agreement
or fails to take actions required by this Agreement, irreparable harm to the
Company will likely result, for which a remedy in the form of damages may not be
adequate or otherwise ascertainable. Consequently, Employer will be
entitled to temporary, preliminary and permanent injunctive relief against
Employee. This section will not limit any other legal or equitable
remedies that Employer may have against Employee for violations of these
restrictions.
7.3 Employer
and Employee agree that this Agreement will be governed by the laws of the State
of New Jersey, without giving effect to the conflict of laws provisions
thereof. All suits, proceedings and other actions relating to,
arising out of or in connection with this Agreement will be submitted solely to
the in personam jurisdiction in the State of New Jersey . Employee hereby waives
any claims against or objections to such in personam
jurisdiction.
7.4 Employer
and Employee agree that, in any lawsuit for breach of this Agreement, the
prevailing party will be entitled to recover its or his/her reasonable
attorneys’ fees and costs, including expert witness fees, unless there is an
express determination by the court that the nonprevailing party’s position was
substantially justified.
8. General.
8.1 Employer
and Employee agree that this Agreement will be binding upon and inure to the
benefit of the Company and its successors and assigns. This Agreement
may be assigned in whole or in part by Employer to a successor to all or
substantially all of the business or assets of Employer or the subportion of the
business or assets of Employer that relate to Employee’s duties; or to any
division or part of Employer; or to any subsidiary, affiliate or division; or to
any entity that is majority-owned by Employer or its subsidiaries, divisions or
affiliates.
8.2 Employer
and Employee agree that any term or provision of this Agreement may be amended
or waived only by a writing signed by Employee and an officer of
Employer. The failure of either party to enforce any of the
provisions in this Agreement will not be construed to be a waiver of the right
of that party to enforce such provision thereafter.
8.3 Employee
agrees that this Agreement is not confidential, and that the Company may, during
the term of Employee’s employment with the Company and thereafter, provide
copies of this Agreement to others, including persons or entities that may
employ, do business with or consider employing or doing business with Employee
in the future.
8.4 Employee
and Employer agree that this Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
shall become effective upon the execution of a counterpart hereof by each of the
parties hereto.
8.5 By Employee’s signature below,
Employee acknowledges that Employee (i) has had sufficient opportunity to read
each provision of this Agreement and understands each provision, (ii) has had an
opportunity to review the Agreement with legal counsel of Employee’s choice,
(iii) is not under duress and (iv) is not relying on any representations or
promises that are not set forth in the Agreement.
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EMPLOYEE:
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EMPLOYER:
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Signature:
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s/s Xxxxxx X. Xxxxxx, Ph.D. |
Signature:
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s/s Xxxx Xxxxxx | |
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Name
(Print):
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Xxxxxx X. Xxxxxx, Ph.D. |
Name
(Print):
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Xxxx Xxxxxx | |
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Title:
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Title:
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Chief Financial Officer | ||
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Date:
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Date:
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May 25, 2010 | |
Exhibit A
attached: Yes ¨ No
¨
Exhibit
A
The
following is a complete list of all Inventions and Works that have been
conceived, made, reduced to practice, developed, authored, created, drawn or
written by me alone or jointly with others prior to my engagement by the
Company.
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
Due to a
preexisting contract with another party, I cannot disclose certain Inventions or
Works that would otherwise be included on the above list.
________
additional sheets are attached.
(number)
EMPLOYEE:
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Signature:
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s/s Xxxxxx X. Xxxxxx, Ph.D. | |
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Name
(Print):
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Xxxxxx X. Xxxxxx, Ph.D. | |
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Title:
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Date:
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