NON-SOLICITATION, INVENTION ASSIGNMENT AND NON-DISCLOSURE AGREEMENT
EXHIBIT
10.2
This Non-Solicitation, Invention
Assignment and Non-Disclosure Agreement (the “Agreement”) is made between
SinoHub, Inc., a Delaware corporation (hereinafter referred to collectively with
its direct and indirect subsidiaries as the “Company”), and Xxxxx X. Xxxxxxx
(the “Employee”) as of September 11, 2008.
In consideration of the employment of
the Employee by SinoHub, Inc., SinoHub, Inc. and the Employee agree as
follows:
1.
Proprietary
Information.
(a) The Employee agrees that
all information, whether or not in writing, of a private, secret or confidential
nature concerning the Company’s business, business relationships or financial
affairs (collectively, “Proprietary Information”) is and shall be the exclusive
property of the Company. By way of illustration, but not limitation,
Proprietary Information includes inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
customer and supplier lists, and contacts at or knowledge of customers or
prospective customers of the Company. The Employee will not disclose
any Proprietary Information to any person or entity other than employees of the
Company or use the same for any purposes (other than in the performance of
his/her duties as an employee of the Company) either during or after
his/her employment with the Company.
(b) The Employee agrees that
all files, letters, memoranda, reports, records, data, sketches, drawings,
laboratory notebooks, program listings, or other written, photographic, or other
tangible material containing Proprietary Information, whether created by the
Employee or others, which shall come into his/her custody or possession, shall
be and are the exclusive property of the Company to be used by the Employee only
in the performance of his/her duties for the Company. All such
materials or copies thereof and all tangible property of the Company in the
custody or possession of the Employee shall be delivered to the Company, upon
the earlier of: (i) a request by the Company or (ii) termination of his/her
employment. After such delivery, the Employee shall not retain any
such materials or copies thereof or any such tangible property. The
Employee agrees, if
requested to do so by the Company, to sign a Termination Certificate in which
the Employee confirms that he or she has complied with the requirements of this
Section 1(b) and that the Employee is aware that certain restrictions imposed
upon the Employee by this Agreement continue after termination of his or her
employment. The Employee understands and agrees, however, that his or
her rights and obligations under this Agreement will continue even if he/she
does not sign a Termination Certificate.
(c) The Employee agrees that
his/her obligation not to disclose or to use information and materials of the
types set forth in paragraphs (a) and (b) above, and his/her obligation to
return materials and tangible property, set forth in paragraph (b) above, also
extends to such types of information, materials and tangible property of
customers of the Company or suppliers to the Company or other third parties who
may have disclosed or entrusted the same to the Company or to the
Employee.
(d) The
Company and the Employee understand and agree that the provisions of this
Section 1 will not apply to any Proprietary Information which: (i) is or becomes
generally known to the public through no action on the part of the Employee;
(ii) is generally disclosed to third parties by the Company without restriction
on such third parties; (iii) is approved for release by written authorization of
the Board of Directors of the Company; or (iv) is required to be disclosed
pursuant to subpoena, order of judicial or administrative authority, or in
connection with judicial proceedings to which the Company or the Employee is a
party, provided that the Employee shall have given the Company written notice of
such disclosure at least 14 days prior to such disclosure in order to provide
the Company with an opportunity to oppose and/or object to such
disclosure.
2.
Developments.
(a) The Employee will make
full and prompt disclosure to the Company of all inventions, trade secrets,
improvements, discoveries, methods, developments, software, and works of
authorship, whether patentable or not, which are created, made, conceived or
reduced to practice by him/her or under his/her direction or jointly with others
during his/her employment by the Company, whether or not during normal working
hours or on the premises of the Company or using the Company’s data or assets
(all of which are collectively referred to in this Agreement as
“Developments”).
(b) All Developments shall be
considered works made for hire for the Company. If any Development is
not considered a work made for hire by operation of law, then the Employee,
without further consideration, hereby agrees to assign and does hereby
assign to the Company (or any person or entity designated by the Company) all of
his/her right, title and interest in and to all Developments and all related
patents, patent applications, trademarks, trademark applications, copyrights and
copyright applications; provided however, that this Section 2(b) shall not apply
to Developments which do not relate to the present or planned business or
research and development of the Company (as described on Appendix A hereto) or
any future business planned by the Company and known to the Employee during
his/her employment and which are made and conceived by the Employee not: (i)
during his/her working hours; (ii) on the Company’s premises; and (iii) using
the Company’s tools, devices, equipment or Proprietary
Information. The Employee understands that, to the extent this
Agreement shall be construed in accordance with the laws of any state which
preclude a requirement in an employment agreement to assign certain classes of
inventions made by an employee, this Section 2(b) shall be interpreted not to
apply to any invention which a court rules and/or the Company agrees falls
within such classes. The Employee also hereby waives all claims to
moral rights (rights of authorship) in any Developments.
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(c) The Employee agrees to
cooperate fully with the Company, both during and after his/her employment with
the Company, with respect to the procurement, maintenance and enforcement of
trademarks, copyrights, patents and other intellectual property rights (both in
the United States and foreign countries) relating to Developments provided that
the Company shall pay all actual expenses reasonably incurred by the Employee in
connection with such efforts. Both during and after his/her
employment with the Company, the Employee shall sign all papers, including,
without limitation, copyright applications, patent applications, declarations,
oaths, formal assignments, assignments of priority rights, and powers of
attorney, which the Company may deem necessary or desirable in order to protect
its rights and interests in any Development. The Employee further
agrees that if the Company is unable, after reasonable effort, to secure the
signature of the Employee on any such papers, any executive officer of the
Company shall be entitled to execute any such papers as the agent and the
attorney-in-fact of the Employee, and the Employee hereby irrevocably designates
and appoints each executive officer of the Company as his/her agent and
attorney-in-fact to execute any such papers on his/her behalf, and to take any
and all actions as the Company may deem necessary or desirable in order to
protect its rights and interests in any Development, under the conditions
described in this sentence.
(d) In
order to avoid disputes over the application of this Section 2 to prior
inventions or copyrightable materials, the Employee has listed on Appendix A to this
Agreement (under the heading “Prior Inventions or Copyrightable Materials”)
descriptions of patentable inventions and copyrightable materials that the
Employee has developed and/or reduced to practice prior to his/her employment
with the Company and that the Employee believes are, accordingly, excepted from
the provisions of this Section 2. If the Employee has not disclosed
anything under the heading “Prior Inventions or Copyrightable Materials” on
Appendix A,
then the disclosure “None.” shall be deemed to appear under such
heading.
3.
Other Agreements and
Obligations.
(a) The Employee hereby
represents and warrants to the Company that, except as the Employee has
disclosed in writing to the Company, the Employee is not bound by the terms of
any agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in the
course of his/her employment with the Company, to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party or to refrain from soliciting employees, customers or suppliers of such
previous employer or other party. The Employee further represents
that his/her performance of all the terms of this Agreement and the performance
of his/her duties as an employee of the Company do not and will not breach any
agreement with any prior employer or other party to which the Employee is a
party (including without limitation any nondisclosure or non-competition
agreement), and that the Employee will not disclose to the Company or induce the
Company to use any confidential or proprietary information or materials
belonging to any previous employer or other party.
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(b) The
Employee acknowledges that the Company from time to time may have agreements
with others which impose obligations or restrictions on the Company regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. The Employee agrees to be bound by
all such obligations and restrictions which are made known to him/her and to
take all action necessary to discharge the obligations of the Company under such
agreements.
4.
United States Government
Obligations.
The Employee acknowledges that the
Company from time to time may have agreements with other persons or with the
Untied States Government, or agencies thereof, which impose obligations or
restrictions on the Company regarding inventions made during the course of work
under such agreements or regarding the confidential nature of such
work. The Employee agrees to be bound by all such obligations and
restrictions which are made known to the Employee and to take all action
necessary to discharge the obligations of the Company under such
agreements.
5.
Non-Solicitation.
(a) During
the term of the Employee’s employment with the Company and for a period of one
(1) year after the termination of such employment, the Employee shall not
recruit or otherwise solicit or induce any current employee of the Company or
any person who was an employee of the Company at any time within six months
prior to the end of the Employee’s employment with the Company, to terminate
his/her employment with, or otherwise cease his/her relationships with, the
Company or any of its subsidiaries.
(b) During
the term of the Employee’s employment with the Company and for a period of one
(1) year after the termination of such employment, the Employee agrees that the
Employee shall not utilize any of the Company’s Proprietary Information or any
other Company confidential, proprietary and/or trade secret information,
directly or indirectly, for the Employee’s own benefit or for the benefit of any
business or enterprise, to solicit, pursue, call upon or take away any Customer
of the Company with whom the Employee had contact or whom the Employee solicited
during the Employee’s employment with the Company. For the purposes
of this Agreement, the term “Customer” means any person or entity that has
purchased, or made a proposal to purchase, products or services from the Company
at any time during the last two years of the Employee’s employment with the
Company.
(c) The
Employee recognizes that the foregoing provisions of this Section 5 are
reasonable because of, among other things, the Company’s investment in good will
and in its Proprietary Information, including, but not limited to its customer
lists and its other confidential, proprietary and/or trade secret information,
and the Employee’s access to and knowledge of certain confidential, proprietary
and trade secret information and business plans belonging exclusively to the
Company.
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6.
No
Employment Contract.
The Employee understands that this
Agreement does not constitute a contract of employment and does not imply that
his/her employment will continue for any period of time.
7.
Miscellaneous.
(a) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement. If any one or more provisions of this Agreement
shall for any reason be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
(b) This Agreement
supersedes all prior agreements, written or oral, between the Employee and the
Company relating to the subject matter of this Agreement. This
Agreement may not be modified, changed or terminated, in whole or in part,
except by an agreement in writing signed by the Employee and the
Company. The Employee agrees that any change or changes in his/her
duties, salary or compensation after the signing of this Agreement shall not
affect the validity or scope of this Agreement.
(c) This Agreement will be
binding upon the Employee’s heirs, executors and administrators and will inure
to the benefit of the Company and its successors and assigns.
(d) No delay or omission by
the Company in exercising any right under this Agreement will operate as a
waiver of that or any other right. A waiver or consent given by the
Company on any single occasion is effective only in that instance and will not
be construed as a bar to or waiver of any right on any other
occasion.
(e) The
Employee expressly consents to be bound by the provisions of this Agreement for
the benefit of the SinoHub, Inc. and any parent, subsidiary or affiliate thereof
to whose employ the Employee may be transferred without the necessity that this
Agreement be re-signed at the time of such transfer. The
Company shall have the right to assign this Agreement to its successors and
assigns and all covenants and agreements hereunder shall inure to the benefit of
and be enforceable by said successors or assigns. The Employee
agrees not to assign any of his/her obligations under this Agreement and agrees
that this Agreement will be binding upon his/her heirs, executors and
administrators.
(f) The restrictions
contained in this Agreement are necessary for the protection of the business and
goodwill of the Company and are considered by the Employee to be reasonable for
such purpose. The Employee agrees that any breach of this Agreement
is likely to cause the Company substantial and irrevocable damage and therefore,
in the event of any such breach, the Employee agrees that the Company, in
addition to such other remedies which may be available, shall be entitled to
specific performance and other injunctive relief.
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(g) This
Agreement is governed by the laws of The State of California, without regard to
the choice of law provisions thereof. Any action, suit, or other
legal proceeding which is commenced to resolve any matter arising under or
relating to any provision of this Agreement shall be commenced only in a court
of The State of California (or, if appropriate, a federal court located within
the State of California), and the Company and the Employee each consents to the
jurisdiction of such a court.
THE
EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
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IN
WITNESS HEREOF, SinoHub, Inc., by its duly authorized representative, and the
Employee have executed this Agreement as of the date first set forth
above.
| SINOHUB, INC. | |||
| By: | /s/ Xxxxx X. Xxxxxxx | ||
|
Xxxxx
X. Xxxxxxx, CEO
|
|||
| (print name and title) | |||
| EMPLOYEE: | |||
| /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx | |||
| (print name) | |||
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Appendix
A
Present and Planned Business
of SinoHub
The
Company has three business lines: supply chain management services, VMI
(fulfillment, procurement and consignment) and electronic component sales. All
of these businesses are fully integrated into SinoHub’s SCM Platform (the
“Platform”). At the core of the Platform is SinoHub’s Web based MIS system,
SinoHub SCM™,
which comprises a key part of the Company’s intellectual property.
In the
future SinoHub intends to add a fourth business line, independent electronic
component distribution. The Company is also planning to enter the
business of electronic products distribution in the future.
Prior Inventions or
Copyrightable Materials
8
