QUANTUM EPITAXIAL DESIGNS, INC.
EMPLOYEE CONFIDENTIALITY AGREEMENT
THIS EMPLOYEE CONFIDENTIALITY AGREEMENT (this "Agreement") is
made this _____ day of ____________, 199___ by and between
______________________ (the "Employee"), a resident of
_____________________________, _______________________ and QUANTUM EPITAXIAL
DESIGNS, INC., a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania (the "Company").
W I T N E S S E T H:
WHEREAS, the Employee desires employment by the Company
and has not yet commenced such employment relationship; and
WHEREAS, the Company desires to employ the Employee and
desires to receive the benefits of the covenants set forth
herein; and
WHEREAS, the Employee agrees to make the covenants to the
Company set forth herein.
NOW, THEREFORE, in consideration of these premises and the
mutual promises made herein and the mutual benefits to be derived herefrom, the
Employee and the Company, intending to be legally bound, hereby agree as
follows:
1. Confidential Information. Without the prior written consent
of the President of the Company, except as shall be necessary in the performance
of the Employee's assigned duties, the Employee shall not disclose or use for
the Employee's direct or indirect benefit or the direct or indirect benefit of
any third party, and Employee shall maintain, both during and after the
Employee's employment, the confidentiality of any and all Confidential
Information (as hereinafter defined) of the Company. "Confidential Information"
means any information (written, oral or stored in any information storage and/or
retrieval medium or device) that the Company treats as confidential or
proprietary, including, but not limited to, any information relating to research
and development plans, methods, efforts and results; manufacturing or production
design, processes, flow-charts and methods; existing and proposed products;
product plans, sketches, and blueprints; computer codes or instructions
(including source and object code listings, program logic algorithms,
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subroutines, modules or other subparts of computer programs and related
documentation, including program notation); business studies; business
development plans and efforts; business procedures; financial data (including,
but not limited to cost data); personnel information; marketing and sales data,
methods, plans and efforts; the identities of customers, contractors and
suppliers and prospective customers, contractors and suppliers; the terms of
contracts and agreements with customers, contractors and suppliers; the
Company's relationship with actual and prospective customers, contractors and
suppliers and the needs and requirements of, and the Company's course of dealing
with, any such actual or prospective customers, contractors and suppliers;
customer and vendor credit information; any information or data provided by or
on behalf of independent contractors, customers, prospective customers or others
subject to the terms of a confidentiality, non-disclosure or similar agreement
or the reasonable expectation that such information or data would be treated as
"confidential" or non-public information or data; any information, data or work
product created, developed, prepared, compiled or assembled for or on behalf of
the Company, any independent contractor, customer, prospective customer, or
other person or entity, whether by the Employee or by other Company employees,
agents or contractors; and any other information that has not been made
available to the general public. Failure to xxxx any of the Confidential
Information as confidential or proprietary shall not affect its status as
Confidential Information under the terms of this Agreement.
2. Property. During the term of this Agreement and thereafter,
the Employee shall not remove from the Company's offices or premises any
documents, records, notebooks, files, correspondence, reports, memoranda,
computer tapes, computer disks or similar materials of or containing
Confidential Information of the type identified in Section 1 hereof, or other
materials or property of any kind, unless necessary in accordance with the
Employee's duties and responsibilities of employment, and in the event that any
of such material or property is removed, all of the foregoing shall be returned
to their proper files or places of safekeeping as promptly as possible after the
removal shall have served its specific purpose; nor shall the Employee make,
retain, remove or distribute any copies of any of the foregoing for any reason
whatsoever, except as may be necessary in the discharge of the Employee's
assigned duties; and upon the termination of the Employee's employment by the
Company, the Employee shall return to the Company all originals, copies and
extracts of the foregoing, then in the Employee's possession or under Employee's
direct or indirect control, and shall delete or destroy any of the foregoing in
his possession or under his direct or indirect control stored on magnetic or
other media or on any information storage or retrieval device, whether prepared
by the Employee or by others.
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3. Intellectual Property.
(a) The Employee acknowledges and agrees that any
and all writings, documents, inventions, discoveries, improvements, computer
programs or instructions (whether in source code, object code, or any other
form), plans, memoranda, tests, research, designs, specifications, models, data,
diagrams, flow charts, and/or techniques (whether reduced to written form or
otherwise) that the Employee makes, conceives, discovers or develops, either
solely or jointly with any other person, at any time during the term of the
Employee's employment (or thereafter, if based upon or incorporating any
Confidential Information), whether during working hours or at the Company's
facility or at any other time or location, and whether upon the request or
suggestion of the Company or otherwise, that relate to or are useful in any way
in connection with any business now or hereafter carried on by the Company
(collectively, "Intellectual Work Product") shall be the sole and exclusive
property of the Company. The Employee shall promptly disclose to the Company all
Intellectual Work Product and maintain any and all records thereof. The Employee
shall have no claim for additional compensation for the Intellectual Work
Product.
(b) The Employee acknowledges that all the
Intellectual Work Product that is copyrightable shall be considered a work made
for hire under United States Copyright Law. To the extent that any copyrightable
Intellectual Work Product may not be considered a work made for hire under the
applicable provisions of the Copyright Law, or to the extent that,
notwithstanding the foregoing provisions, the Employee may retain an interest in
any Intellectual Work Product that is not copyrightable, the Employee hereby
irrevocably assigns and transfers to the Company any and all right, title,
and/or interest that the Employee may have in the Intellectual Work Product
under copyright, patent, trade secret and trademark law, in perpetuity or for
the longest period otherwise permitted by law, without the necessity of further
consideration. The Company shall be entitled to obtain and hold in its own name
all copyrights, patents, trade secrets, and trademarks with respect thereto.
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(c) At the request and expense of the Company, either
before or after the cessation of the Employee's employment, the Employee shall
assist the Company in acquiring and maintaining copyright, patent, trade secret,
and trade xxxx protection upon, and confirming the Company's title to, any
Intellectual Work Product. The Employee's assistance shall include making all
lawful oaths and declarations, executing and delivering all applications for and
other documents prepared in connection with the prosecution, maintenance,
enforcement and or defense of any copyrights, patent rights, trade secret
rights, and trademark rights, cooperating in legal proceedings, and taking any
and all other actions considered necessary or desirable by the Company.
(d) In the event the Company is unable after
reasonable effort to secure the Employee's signature on any of the documents
referenced in Section 3(c) above, whether because of the Employee's physical or
mental incapacity or for any other reason whatsoever, the Employee hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as the Employee's agent and attorney-in-fact, to act for and in his
behalf and stead to execute and file any such documents and to do all other
lawfully permitted acts to further the prosecution and issuance of any such
copyright, patent, trade secret, trade xxxx, or other analogous protection, with
the same legal force and effect as if executed by the Employee.
(e) The Employee represents that the writings,
documents, inventions, discoveries, computer programs or instructions (whether
in source code, object code, or any other form), algorithms, plans, memoranda,
tests, research, designs, innovations, systems, analyses, specifications,
models, data, diagrams, flow charts, and/or techniques and all copyrights,
patents, trademarks and trade names or similar intangible property identified in
Schedule 3(e) hereof comprises all of the writings, documents, inventions,
discoveries, computer programs or instructions (whether in source code, object
code, or any other form), algorithms, plans, memoranda, tests, research,
designs, innovations, systems, analyses, specifications, models, data, diagrams,
flow charts, and/or techniques and all copyrights, patents, trademarks and trade
names or similar intangible property that Employee has created, made, conceived
of, discovered or developed prior to the date hereof, and the same are excluded
from the operation of the other provisions of this Section 3.
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4. Disclosure. Employee shall disclose promptly to the Company
any and all Confidential Information and information relating to all
Intellectual Work Product which Employee may make, conceive, discover or develop
during the period of his employment by the Company (or thereafter, if based upon
or incorporating any Confidential Information).
5. Covenant Not to Compete.
(a) During the period of the Employee's employment by
the Company and for a period of two (2) years thereafter, the Employee shall
not, anywhere in the world, directly or indirectly engage or become interested
in (as owner, proprietor, promoter, stockholder, partner, co-venturer, director,
officer, employee, agent, consultant or otherwise) any business which develops,
manufactures, markets or sells MBE grown III-V semiconductor wafers to include
MESFETs, QWIPs, HBTs, PHEMTs or any other new product or service marketed or
sold by the Company during the period of Employee's employment by the Company
(the "Business of the Company"). Notwithstanding the foregoing Section 5(a)
hereof to the contrary, Employee shall be permitted to own not more than two
percent (2%) of the issued outstanding equity securities of any class of
publicly-traded equity securities, irrespective of whether the issuer thereof is
engaged in the Business of the Company.
(b) During the period of Employee's employment by the
Company and for a period of two (2) years thereafter, the Employee shall not,
directly or indirectly, solicit, call on, or otherwise deal in any way with any
customer, supplier or contractor with whom the Company shall have dealt at any
time during the period of the Employee's performance of services to the Company,
for a purpose which is competitive with the Business of the Company, or
influence or attempt to influence any customer, supplier or contractor of the
Company to terminate or modify any written or oral agreement or course of
dealing with the Company.
(c) For a period of two (2) years after the cessation
of Employee's employment with the Company, Employee shall not directly or
indirectly, employ, engage or retain, or arrange to have any other person or
entity employ, engage or retain any person who is an employee, contractor,
consultant or agent of the Company or shall have been employed, engaged or
retained by the Company as an employee, contractor, consultant or agent at any
time during the one (1) year period preceding the date upon which Employee's
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employment with the Company ceases; additionally, Employee shall not, directly
or indirectly, influence or attempt to influence any such person to terminate or
modify his employment arrangement or engagement with the Company.
6. Other Agreements. The Employee hereby represents and
warrants that the Employee is not subject to any other agreement that the
Employee may violate by executing, delivering or performing this Agreement. The
Employee agrees to disclose the existence and terms of this Agreement to any
employer or other person that the Employee may perform services for after the
cessation of the Employee's employment at the Company.
7. Outside Employment; No Employment Agreement. During the
period of Employee's employment by the Company Employee shall not engage in any
outside employment, business or other remunerative activity, except with the
prior written consent of the Company. This Agreement is not, and does not
contain an employment agreement or a promise of continued employment. Either the
Employee or the Company has the right to terminate Employee's employment at the
Company at any time and for any reason or no reason.
8. Survival of Provisions. The obligations of the Employee as
set forth herein shall survive the cessation or termination of the Employee's
employment with the Company.
9. Successors and Assigns. The Company may assign this
Agreement to, and this Agreement shall bind and inure to the benefit of, any
parent, subsidiary, affiliate or successor of the Company. This Agreement shall
not be assignable by the Employee.
10. Entire Agreement; Amendments. This Agreement contains the
entire agreement and understanding of the parties relating to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
understandings of every nature between them. This Agreement may not be changed
or modified, except by an agreement in writing signed by both of the parties
hereto.
11. Waiver. The waiver of the breach of any term or provision
of this Agreement shall not operate as or be construed to be a waiver of any
other or subsequent breach of this Agreement.
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12. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of law principles of Pennsylvania or any other
jurisdiction.
13. Invalidity. If any provision of this Agreement shall be
determined to be void, invalid, unenforceable or illegal for any reason, the
validity and enforceability of all of the remaining provisions hereof shall not
be affected thereby. If any particular provisions of this Agreement shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such amendment to apply only to the operation of such provision
in the particular jurisdiction in which such adjudication is made; provided
that, if any one or more of the provisions contained in this Agreement shall be
adjudicated to be invalid or unenforceable because such provision is held to be
excessively broad as to duration, geographic scope, activity or subject, such
provision shall be deemed amended by limiting and reducing it so as to be valid
and enforceable to the maximum extent compatible with the applicable laws of
such jurisdiction, such amendment only to apply with respect to the operation of
such provision in the applicable jurisdiction in which the adjudication is made.
14. Section Headings. The section headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
15. Gender; Number. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context requires.
16. Enforcement. The Employee acknowledges that it is
impossible to measure fully, in money, the injury that will be caused to the
Company in the event of a breach or threatened breach of any of the provisions
of this Agreement, and the Employee waives the claim or defense that the Company
has an adequate remedy at law. The Employee shall not, in any action or
proceeding to enforce any of the provisions of this Agreement, assert the claim
or defense that such an adequate remedy at law exists. The Company shall be
entitled to injunctive relief to enforce the provisions of such sections hereof,
without prejudice to any other remedy the Company may have at law or in equity.
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The periods of time set forth in Section 5 hereof shall not include and shall be
deemed extended by any time required for litigation to enforce the relevant
covenant periods, provided that the Company is successful on the merits in any
such litigation. The "time required for litigation" is herein defined to mean
the period of time from service of process upon the Employee through the
expiration of all appeals related to such litigation. If an action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to recover, in addition to any other relief,
reasonable attorney's fees, costs and disbursements.
17. Disclosure of Agreement. Employee agrees that upon and
after her termination or cessation of employment with the Company, until such
time as no obligations of Employee to the Company hereunder exist, Employee
shall (i) provide a complete copy of this Agreement to any prospective employer
or other person, entity or association in the Business of the Company, with whom
or which Employee proposes to be employed, affiliated, engaged, associated or to
establish any business or remunerative relationship prior to the commencement
thereof and (ii) shall notify the Company of the name and address of any such
person, entity or association prior to her employment, affiliation, engagement,
association or the establishment of any business or remunerative relationship.
Employee will provide the names and addresses of any of such persons or entities
as the Company may from time to time reasonably request.
18. Consent to Forum, Etc. Any legal proceeding arising out of
or relating to this Agreement shall be instituted in the United States District
Court for the Eastern District of Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in Northampton County, Pennsylvania and the Employee hereby
consents to the personal and exclusive jurisdiction of such court and hereby
waives any objection that the Employee may have to the laying of venue of any
such proceeding and any claim or defense of inconvenient forum. Notwithstanding
anything to the contrary set forth above, the Company shall have the right to
institute or defend and legal action arising out of or relating to this
Agreement in any appropriate court and in any jurisdiction.
[Executions set forth on page 9]
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IN WITNESS WHEREOF, the parties have caused this Employee
Confidentiality Agreement to be executed the day and year first above written.
QUANTUM EPITAXIAL DESIGNS, INC.
By:
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Its:
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EMPLOYEE:
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(Signature)
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Print Name
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