ELECTROPHARMACOLOGY, INC.
EMPLOYEE NONDISCLOSURE, CONFIDENTIALITY AND NONCOMPETITION
AGREEMENT
This Agreement (the "Agreement") is made between Electropharmacology, Inc., a
Delaware Corporation including its Gemini Biotech Division (collectively the
"Company") and Xxxx Xxx (the "Employee").
RECITALS
A. The Employee recognizes and agrees that the Company is and will be
engaged in research, development, production or commercialization of
products and technologies that are valuable assets of the Company. The
Company is engaged in a very competitive business. Because of the
nature of this business, the Company may be irreparably harmed by
certain activities of the Employee. These activities include
unauthorized disclosure of Company's confidential information, entering
into a business, that competes with the Company, during or following
the term of employment of the Employee by the Company, appropriating or
diverting business or customers of the Company and inducing employees
and/or independent contractors of the Company to leave the employment
or engagement of the Company, all of which are in violation of the
Employee. Employees may be able to do these unfair acts because of
information which is learned and contacts which are made by the
Employee while in the employment with the Company. Therefore, the
Company desires to protect itself by requiring the Employee to agree to
reasonable restrictions concerning certain of the Employee's activities
during and after termination of employment with the Company. These
restrictions are intended to prevent harm directly or indirectly to the
Company (its directors, employees, independent contractors whose
business or compensation depends upon the continuos success of the
Company).
B. The Employee understands and agrees that:
1. As part of his or her employment by the Company, the
Employee is (or may be) expected to make or develop
new contributions and/or Inventions, as further
defined in Section 10 that are of value to the
Company and that are intended to belong to the
Company.
2. Employment by the Company creates a relationship of
confidence and trust between the Employee and the
Company with respect to any information applicable to
the business of the Company.
3. The Company possesses and may acquire information,
which has commercial value in the business in which
the Company is engaged. All such information is
hereinafter called "Proprietary Information". By way
of illustration, but not limitation, Proprietary
Information includes trade secrets, processes,
designs, concepts, know-how, improvements, proposals,
Inventions (as further defined herein below) whether
patentable or not, techniques, marketing plans,
strategies, forecasts, financial and cost information
and customer lists.
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A G R E E M E N T
NOW THEREFORE, in consideration of the foregoing and of the Employee's
employment or continued employment by the Company, as the case may be, and the
compensation or other benefits received by the Employee from the Company during
the course of such employment, the Employee hereby agrees as follows:
1. For purposes of this Agreement, the business of the Company
shall be deemed to be the design, development and
commercialization of (i) drugs or diagnostics based on amino
acids or nucleosides and (ii) drug delivery or tissue repair
by electromagnetic signals or mild electric currents. The
business as described herein may be amended by the Company
based on licensing, acquisitions and other transactions by the
Company relating to technologies, products or businesses.
2. The Employee agrees that while employed by the Company, the
Employee will not engage in any other employment or business,
which would interfere with performance of the Employee's
duties to the Company.
3. The Employee agrees not to take any steps preliminary or
otherwise to set up or engage in any business enterprise that
would be in competition with the Company's business until
after termination of employment with the Company. The
restriction in this section shall include, but not be limited
to, plans to set up, establish or engage in a business
enterprise in competition with the Company and plans to seek
or accept employment from anyone in competition with the
Company.
4. Employee agrees to inform the Company of any business
opportunities relating to the business of the Company, which
comes to the attention of the Employee.
5. The Employee agrees that during the period of his or her
employment under this Agreement and for a period of one (1)
year after termination of his or her employment with the
company for any reason, he or she shall not directly or
indirectly own, manage, operate, control, be employed by, be a
shareholder of, be a director of, be an officer of,
participant in, contract with or be connected in any capacity
or any manner with any business that directly or indirectly
(whether through related companies or otherwise) competes with
the Company's business in any state in the U.S. or any
province or prefecture, as the case may be, in a foreign
country with the Company.
6. The Employee agrees that during the period of his employment
under this Agreement and for a period of one (1) year
following the termination of his employment with the Company
for any reason, he or she shall not supervise, manage, hire,
cause to be hired or otherwise induce any employee or
independent contractor of the Company to leave the employment
of the Company.
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7. The Employee agrees that during the period of his or her
employment and for a period of one (1) year after termination
of his or her employment with the Company for any reason, he
or she shall not appropriate, divert or assist another to
appropriate or divert any business or customer away from the
Company or attempt to do any of the foregoing.
8. The Employee agrees that all Proprietary Information is the
sole property of the Company and the Company is the sole owner
of all intellectual property rights related thereto. The
Employee hereby assigns to the Company all rights the Employee
may have in such Proprietary Information. At all times, both
during employment by the Company and after any termination,
the Employee will keep in confidence any and all Proprietary
Information, and will not use or disclose any Proprietary
Information or anything relating to it without the prior
written consent of the Company, except as may be necessary in
the ordinary course of performing the Employee's duties for
the Company.
9. In the event of a termination of employment, for any reason,
the Employee will immediately deliver to the Company all
documents and data of any nature pertaining to work with the
Company and Proprietary Information and all copies thereof
which the Employee has in his or her possession and the
Employee will not take any documents or data of any
description or any reproduction of any description containing
or pertaining to any Proprietary Information.
10. The Employee shall promptly disclose to the Company any and
all improvements, inventions, whether or not patentable,
formulas, processes, techniques, know-how, and data, made or
conceived or reduced to practice or learned by the Employee,
either alone, or jointly with others, during and prior to the
period of the Employee's employment with the Company,
including but not limited to, any and all such inventions made
or acquired by Delargen or Gemini Biotech, Ltd. All such
improvements, inventions, formulas, processes, techniques,
know-how and data are hereinafter referred to as "Inventions".
11. The Employee agrees that all Inventions shall be the sole
property of the Company, and the Company shall be the sole
owner of all intellectual property rights related thereto. The
Employee hereby assigns to the Company all of the Employee's
rights, title and interest in and to all Inventions. The
Employee further agrees as to all such Inventions to assist
the Company in every proper way (at the Company's expense) to
obtain, and from time to time enforce, rights to the
Inventions. Employee agrees to render such assistance even if
and after his or her employment should terminate.
12. (a) The Employee represents that performance of all the
terms of this Agreement and/or employment by the
Company does not, and will not breach any agreement
with any other person or entity, including, without
limitation, any agreement to keep in confidence
proprietary information of third parties acquired by
the Employee in confidence or in trust prior to
employment by the Company. The Employee
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has not brought and will not bring to the Company, or
use in the performance of his/her responsibilities at
the Company any materials or documents of a former
employer that are not generally available to the
public. The Employee also agrees that, in connection
with his or her employment with the Company, the
Employee is not to breach any obligation of
confidentiality that the Employee has to former
employers.
(b) The Employee is not a party to or otherwise bound by
an agreement or arrangement, or subject to any
judgment, decree or order of any court or
administrative agency, (i) that would conflict with
the Employee's obligation to diligently promote and
further the interest of the Company, or (ii) that
would conflict with the Company's business as now
conducted or as proposed to be conducted.
13. (a) This Agreement shall be effective as of the
earlier of the first day the Employee is employed by
the Company or date of execution of this Agreement.
(b) This Agreement shall be binding upon the Employee,
the Employee's spouse, heirs, executors, assigns and
administrators and shall inure to the benefit of the
Company, its successors, and assigns.
(c) This Agreement shall be construed under and according
to the laws of the State of Florida. In the event of
any dispute arising out of this Agreement, the
prevailing party will be entitled to its reasonable
attorneys' fees.
(d) The parties agree that in the event of Employee's
breach of Employee's obligations, Employer would be
irreparably damaged, and therefore, in addition to,
other remedies available to Employer, the Employer
shall be entitled to injunctive relief against
Employee, provided, however, that at the request of
the Company, such dispute shall be resolved in
accordance with the commercial arbitration rules of
the American Arbitration Association by binding
arbitration held in Gainesville, Florida.
(e) In the event that any provision hereof shall be
determined by any court of competent jurisdiction to
be unenforceable or otherwise invalid as written, the
same shall be enforced and validated in a re-written
form permitted by the applicable law. The provisions
hereof are severable and the unenforceability or
invalidity of any provision hereof shall not affect
the remainder of the provisions of this agreement.
Furthermore, the unenforceability or invalidity of
any provision in one jurisdiction shall not affect
the enforceability or validity of such provision in
any other jurisdiction.
(f) Nothing herein shall obligate the Company to continue
to retain the Employee in the Company's employment or
limit or impair the Company's ability to terminate
the employment of the Employee at will with or
without cause for any reason. The Employee is an
employee at will.
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(g) In the event of a violation of this Agreement, if the
Employee is prevented by a court from committing any
further violation, whether by a temporary restraining
order, injunction or otherwise, the time periods set
forth in this Agreement shall be computed by
commencing the periods on the date of the applicable
court order and continuing them from that date for
the full period provided.
(h) The Employee shall have the right to request a waiver
of all or part of the restrictions contained in this
Agreement by providing the Company with a written
statement containing all relevant details. The
Company may, in its sole discretion, waive all or
part of the restrictions contained in this Agreement
on such terms and conditions, and to such extent, as
it, in its sole discretion, deems appropriate. Such
waiver must be in writing.
(i) For one (1) year following the termination of this
Agreement for any reason, the Employee agrees to show
this Agreement to any person or entity before he
directly or indirectly owns, manages, operates,
controls, becomes employed by, becomes a shareholder
of, becomes a director of, becomes an officer of,
participates in, contracts with or becomes connected
in any capacity or in any manner with such person or
entity.
AGREED TO and ACCEPTED this 24th day of August, 1998.
EMPLOYEE: ELECTROPHARMACOLOGY, INC.
By: /s/ Xxxx Xxx By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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______________________________ _________________________________
(Witness) (Witness)
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