EXHIBIT 10.11
AGREEMENT REGARDING NON- DISCLOSURE
OF CONFIDENTIAL INFORMATION,
NON-COMPETITION AND OWNERSHIP
OF INTELLECTUAL PROPERTY
1. INTRODUCTION
AVECOR Cardiovascular Inc. ("Avecor") and the undersigned Employee
acknowledge and agree that Avecor will disclose or has already disclosed to
Employee certain Confidential Information as defined in Section 2. Employee
recognizes that the Confidential Information is a business asset of Avecor, the
value of which can only be protected by maintaining the secrecy of the
Confidential Information. Employee further understands and acknowledges that in
the course of his or her employment by Avecor, Employee will establish or has
already established personal contacts and relationships with Avecor's customers
and that such personal contacts and relationships also represent valuable
business assets of Avecor.
Employee, therefore, enters into this Agreement in consideration of
Avecor's offer of employment or continuing employment and the benefits
associated with that employment, in consideration of being given access to
Confidential Information and for other good and valuable consideration.
Employee and Avecor, intending to be legally bound, agree as follows:
2. DEFINITIONS
(a) AVECOR means AVECOR Cardiovascular Inc., its successors in interest,
and all of its parent, subsidiary or affiliate corporations and the
operating divisions thereof.
(b) CONFIDENTIAL INFORMATION means any information that Employee learns or
develops during the course of employment with Avecor that derives
independent economic value from not being generally known, or not
being readily ascertainable by proper means, by other persons who can
obtain economic value from the disclosure or use of such information.
Such information includes, but is not limited to, Avecor's sales,
clinical and engineering information, information about new or future
products, Avecor's marketing plans and goals, lists of Avecor's
customers and the identities of preferred customers, information about
customer purchases and preferences, information regarding research and
development, manufacturing processes, or management systems and any
other confidential information which provides Avecor with a
competitive advantage.
(c) AREA OF EMPLOYMENT means the following:
(i) The geographical area assigned by Avecor to Employee or to persons
under Employee's supervision within which Employee or persons under
Employee's supervision sold, solicited the sale of, supported or
supervised the sale of any Avecor Product during the twelve (12)
months immediately preceding the termination of Employee's
employment with Avecor; and
(ii) The Standard Metropolitan Statistical Area or Areas within which
Employee or persons under Employee's supervision sold, solicited
or supported the sale of any Avecor Product during the twelve (12)
months immediately preceding the termination of Employee's
employment with Avecor.
(d) AVECOR PRODUCT means any actual or projected product, product line or
service that has been designed, developed, manufactured, marketed or
sold by Avecor during Employee's employment with Avecor or regarding
which Avecor has conducted or acquired research and development during
Employee's employment with Avecor. AVECOR PRODUCT specifically
includes those products, product lines, services and products in
research and development acquired by Avecor from SciMed Life Systems,
Inc. ("SciMed"), pursuant to the Asset Purchase Agreement, dated
June 7, 1991, between SciMed and Avecor.
(e) Competitive Product means any actual or projected product, product
line or service designed, developed, manufactured, marketed or sold
by anyone other than Avecor which performs similar functions or is
used for the same general purposes as an Avecor product.
(f) SOLICITATION OF SALES includes providing information or conducting
demonstrations regarding Avecor Products or Competitive Products
and other acts of service including, but not limited to, delivery
and maintenance.
3. NON-COMPETITION
During the term of employment and for a period of two (2) years following
voluntary termination of employment, for whatever reason, Employee will not
participate in or support the manufacture, invention, development, sale,
solicitation of sale, marketing, testing, research or other business aspect of
any Competitive Product. With regard to sales and solicitation of sales, such
restriction applies only within Employee's Area of Employment.
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To Compensate Employee for any economic hardship resulting from the
non-competition provisions of this Agreement, Avecor agrees that it will make
the monthly payment specified in this paragraph to Employee commencing with the
fourth (4th) month after termination of employment and continuing until the
non-competition provision expires or is expressly waived by Avecor, or until
Employee fails to meet one of the conditions specified below. The monthly
payment shall be seventy-five percent (75%) of Employee's average monthly base
salary from Avecor during the preceding twelve (12) months less any compensation
which the Employee received or obtained an unqualified right to receive as the
result of being employed during the preceding month. If Employee has not been
employed by Avecor for at least twelve (12) months prior to termination, such
average shall be taken over Employee's actual months of employment.
Avecor's obligation to make the above-described payments is expressly
conditioned on each of the following:
(a) Employee will, during the entire period during which such payments are
made, seek employment consistent with Employee's education, abilities
and experience which would not violate the non-competition provisions
of this Agreement.
(b) Employee will, within the first 10 days of each month for which
payment is to be made, provide Avecor with a written summary of efforts
made by Employee pursuant to Paragraph 3(a) above. Simultaneously
Employee will inform Avecor of the amount of compensation which
Employee received or obtained an unqualified right to receive as
a result of being employed the preceding month.
If Employee has had managerial or supervisory responsibilities, Employee
will not, for a period of two (2) years following termination of employment with
Avecor, for whatever reason, induce or attempt to induce any Avecor employee for
whom Employee had managerial or supervisory responsibilities during the twelve
(12) months immediately preceding termination of Employee's employment to leave
his or her employment with Avecor. Such inducement includes all acts of
recruitment including offering employment, seeking expressions of interest in
employment or discussing employment opportunities.
The restrictions contained in this Section 3 shall apply regardless of
whether Employee acts directly or indirectly; or whether Employee acts
personally or as an employee, agent or otherwise for another. However, the
restrictions contained in this Section 3 shall not apply in the event all or
substantially all of the assets or voting shares of Avecor are acquired by any
third party.
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4. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
Employee agrees not to disclose, during the course of Employee's employment
by Avecor or thereafter, in any manner to any person not employed by Avecor, any
Confidential Information. Upon termination of Employee's employment with
Avecor, for whatever reason, Employee agrees to return all originals and copies
of documents containing Confidential Information as well as all documents
generated by Employee on behalf of Avecor and all documents relating to the
business of Avecor from any source whatsoever.
5. INVENTIONS AND PATENTS
All inventions, improvements and discoveries, whether or not patentable,
made or conceived by Employee, whether by Employee's individual efforts or in
connection with the efforts of others, during the period of Employee's
employment with Avecor and for twenty-four (24) months thereafter, whether made
during the working hours of Avecor or on Employee's own time, relating in any
way to Avecor Products or resulting in any way from employment with Avecor,
shall be the property of Avecor. This provision shall not apply to inventions,
improvements, or discoveries meeting all of the following conditions:
(a) Any inventions, improvements, or discoveries which were made without
the use of any Avecor equipment, supplies, facilities, or Confidential
Information; and
(b) Which were developed entirely on Employee's own time; and
(c) Which do not relate directly to the business of Avecor, or to Avecor's
actual or demonstrably anticipated research and development; and
(d) Which do not result in any manner from the work performed by Employee
for Avecor.
In the event of any dispute, arbitration or litigation concerning whether
an invention, improvement or discovery made or conceived by Employee is the
property of Avecor, such invention, improvement or discovery shall be presumed
the property of Avecor and Employee shall bear the burden of establishing
otherwise.
Employee agrees to keep accurate, complete and timely records of all
inventions, improvements and discoveries, which records shall be the property of
Avecor and shall be retained on the premises of Avecor.
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Employee agrees to fully disclose and describe such inventions,
improvements and discoveries to Avecor promptly after their creation or
discovery. Employee agrees to assign, and does hereby assign, to Avecor all the
Employee's rights to such inventions, improvements and discoveries and to
applications for letters patent and/or copyrights in all countries and to all
letters patent and/or copyrights granted upon such inventions, improvements and
discoveries in all countries.
Employee agrees to assist Avecor in every reasonable way to obtain letters
patent and/or copyrights on such inventions, improvements and discoveries and to
execute all documents necessary to memorialize the assignments of such letters
patent and/or copyrights to Avecor.
Employee agrees to perform promptly (without charge to Avecor but at the
expense of Avecor) all acts as may be necessary in Avecor's opinion to preserve
all patents and/or copyrights granted upon Employee's inventions, improvements
and discoveries against forfeiture, abandonment or loss.
Employee has made no inventions, improvements or discoveries related to
Avecor Products or the business of Avecor prior to the date hereof that are
excluded from this Agreement except:
(a)
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(If none, write "none" and cross out ensuing subparagraph (b)).
(b) Those inventions, improvements, and discoveries set forth on the
attached list signed by Employee and by an officer of Avecor, a copy
of which has been delivered to Employee with a copy of this agreement.
6. INJUNCTIVE RELIEF
The remedy at law for breach of this Agreement is inadequate, and
therefore, Avecor shall be entitled to injunctive relief to enforce the terms of
this Agreement, in addition to any other remedy Avecor might have.
7. SEVERABILITY
The invalidity of any portion of this Agreement shall not impair or affect
enforceability of the remainder. If any of these restrictions is determined to
be unenforceable as to duration or extent, or for any reason whatsoever, such
restriction shall be effective for such period of time and for such extent as it
may be enforceable.
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8. PRIOR AGREEMENTS
This Agreement and any prior Non-compete and Non-disclosure Agreements
signed by Employee in connection with his or her employment at Avecor shall
constitute a single agreement. In case of conflict between any provision of
this Agreement and any provision of any other such agreement, the provisions of
this Agreement shall control. If the provisions of this Agreement so selected
are determined to be unenforceable as written, then they shall be interpreted in
accordance with Section 7 (Severability) to make them enforceable to the maximum
extent provided by law. If the provisions of this Agreement so selected are
determined to be unenforceable in their entirety and cannot be revised pursuant
to Section 7 (Severability) to make them enforceable, then such provisions shall
give way to the most restrictive provision in any other such agreement which
covers the same issue and which is enforceable. There are no agreements,
representations, or warranties relating to the subject matter of this Agreement
which are not set forth in this Agreement and the prior Non-compete and
Non-disclosure agreements (if any) signed by Employee.
9. NON-EMPLOYMENT AGREEMENT
This Agreement is not an employment contract and does not give Employee any
right to continued employment. Employee acknowledges that his employment with
Avecor is terminable at will at any time by either party.
10. GOVERNING LAW/CONSENT TO PERSONAL JURISDICTION
This Agreement will be construed and enforced in accordance with the laws
of the State of Minnesota. Employee hereby consents to the exercise of personal
jurisdictions over him or her by the courts of the State of Minnesota.
AVECOR CARDIOVASCULAR INC. EMPLOYEE
By
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Date:
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Employee acknowledges receiving a copy of this Agreement.
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