GLYCOSYN PHARMACEUTICALS, INC.
0000 XXXXXXX XXXXX XXXXXXX, XXXXX 000
XXXXXXX XXXXX, XXXXXXXXXX 00000
October __, 1997
New Concept Therapeutics, Inc. Xx. Xxxxxx Head
000-X Xxxx Xxxxxx Xxxx 000-X Xxxx Xxxxxx Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000 Xxxx, Xxxxx Xxxxxxxx 00000
Xx. Xxxxx Xxxxxxxxxx
000-X Xxxx Xxxxxx Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Re: INVESTMENT IN NEW CONCEPT THERAPEUTICS, INC.
Gentlemen:
This Letter Agreement will confirm our recent discussions relating to a
proposed investment (the "Investment Transaction") whereby Glycosyn
Pharmaceuticals, Inc., a Delaware corporation ("Glycosyn"), will conduct an
equity investment in New Concept Therapeutics, Inc., a North Carolina
corporation ("NCT"), in accordance with the general terms described below. This
Letter Agreement assumes that NCT has 100 common shares issued and outstanding,
of which 51 common shares are owned by Xxxxxx Xxxx ("Head") and 49 common shares
are owned by Xxxxx Xxxxxxxxxx ("Xxxxxxxxxx"). This Letter Agreement also
assumes that the authorized capital of Glycosyn consists of 10,000,000 of the
$.001 par value common stock ("Glycosyn Common Stock") of Glycosyn, of which
5,262,100 shares of Glycosyn Common Stock are issued and outstanding; and
5,000,000 shares of the $.001 par value preferred stock of Glycosyn, of which
250,000 shares (designated as "Series A Preferred Stock) are issued and
outstanding. This Letter Agreement further assumes that there are no
outstanding options, warrants or other rights to acquire any securities of NCT
or Glycosyn.
On the basis of our discussions, Xxxxxxxx and each of you hereby confirm
our agreement to consummate the Investment Transaction on the following general
terms and conditions. We hereby confirm our intent to enter into a more formal
written agreement ("Definitive Agreement") concerning the Investment Transaction
as soon as possible. In the meantime, however, this Letter Agreement shall
constitute the binding agreement of the parties to all of the terms and
conditions contained herein.
1. STRUCTURE OF TRANSACTION. At the Closing (as defined below), NCT
shall issue into an escrow to be maintained by NCT's counsel, Xxxxxxxx X.
X'Xxxxxxxx, Xx., Esq. ("Escrow Agent"), to be held in escrow for the benefit of
Glycosyn, 23 common shares ("NCT Shares") of NCT in consideration of Glycosyn's
issuance of an unsecured promissory note ("Note") to NCT in the original
principal amount of $250,000. The Note shall bear interest at the rate of ten
percent (10%) per annum. The Note shall require the payment of $50,000 of the
principal amount thereunder on or before December 31, 1997. The Note shall also
require the payment of the
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remaining $200,000 principal amount and all accrued interest on the principal
amount on or before April 30, 1998, however Glycosyn shall use its best efforts
to prepay the principal amount of the Note as soon as practicable. The parties
hereby acknowledge that Xxxxxxxx has advanced to date $20,000 under the Note.
Upon Xxxxxxxx's payment in full of the Note in accordance with its terms, the
Escrow Agent shall release the NCT Shares to Glycosyn. In the event that
Glycosyn fails to pay the initial $50,000 of principal under the Note by
December 31, 1997 or the entire principal amount of the Note by April 30, 1998,
the Escrow Agent shall return the NCT Shares to NCT for cancellation and all
amounts paid by Glycosyn under the Note shall be repaid by NCT, with interest on
the unpaid principal amount at the rate of 10% per annum from the date of
advance by Glycosyn under the Note, in twelve (12) equal monthly installments
commencing May 31, 1998 and on the last day of each of the following 11 months
until paid in full. The terms of the escrow shall be set forth in a separate
Escrow Agreement by and among the Escrow Agent, Glycosyn, Head and Xxxxxxxxxx.
2. OPTIONS. As an inducement to Glycosyn to conduct the investment
in NCT, and as additional consideration therefore, Head and Xxxxxxxxxx each
hereby grant Glycosyn an option ("Option" or the "Options") to purchase all, but
not less than all, of their common shares of NCT (i.e., 51 common shares from
Head and 49 common shares from Xxxxxxxxxx), at the exercise price of $7500.00
per share, for the period terminating two years from the Closing. Glycosyn
shall only be allowed to exercise the Options jointly and in their entirety.
The Options shall be exercisable by Glycosyn upon and subject to its payment of
the entire principal amount of the Note and shall provide for the exercise of
the Option, and payment in full of the underlying shares, by Glycosyn's delivery
of shares ("Glycosyn Shares") of Glycosyn Common Stock to the optionor at the
rate of $0.30 per Glycosyn Share. The Options shall contain customary and
reasonable terms concerning investor representations necessary to substantiate
compliance with applicable federal and state securities laws and anti-dilution
adjustment, including "average-down" anti-dilution adjustment in the event of
Glycosyn's issuance of shares of its common stock for consideration of less than
$0.30 per share. At the request of Optionor, Glycosyn shall use its best
efforts to restructure the issuance of the Glycosyn Shares for the NCT common
shares as a tax-exempt statutory merger.
3. WARRANTIES, REPRESENTATIONS AND INDEMNITY. The parties will
provide usual and customary warranties, representations and indemnities to each
other by way of the Definitive Agreement, including, without limitation,
representations and warranties concerning liabilities (contingent or otherwise),
litigation (current or threatened), any investigation (past or present) by
regulatory bodies, and related significant events which might affect the
consummation of the Investment Transaction. Each party represents and warrants
that it has full and absolute right, power and authority and legal capacity to
execute, deliver and perform this Letter Agreement and all other agreements
contemplated hereby to be executed by the party and, upon such execution, this
Letter Agreement will be the valid and binding obligation of the party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws
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and other laws of general application affecting enforcement of creditors
rights generally. Each party represents and warrants to the other that the
execution, delivery, and performance of this Letter Agreement by such party
does not and will not reach, violate, conflict with or permit the
cancellation of, any agreement to which they are a party or by which any of
its properties are bound.
4. DUE DILIGENCE/ACCESS. Until the Investment Transaction is
consummated or terminated, Glycosyn, on the one hand, and NCT, Head and
Xxxxxxxxxx, on the other hand, will permit the officers, directors, employees,
agents, accountants and legal representatives of the other to investigate,
review and copy its business records and financial statements and inspect its
facilities.
5. CONFIDENTIALITY. Glycosyn, on the one hand, and NCT, Head and
Xxxxxxxxxx, on the other hand, agree on behalf of itself and its employees,
agents, accountants, attorneys and other advisors, that they will not divulge
confidential information obtained from the other to third parties (other than
their employees, agents, accountants and attorneys). In the event the
Investment Transaction is abandoned, each party agrees to return to the other
party all copies of any documentary confidential information that the other
party has provided to it and any notes, memoranda or other documents generated
by it with respect to such confidential information. Xxxxxxxx acknowledges and
agrees that all patents filed by Xxxxxxxx or NCT relating to inventions by Head
or Xxxxxxxxxx shall identify them as the inventors. Head and Xxxxxxxxxx agree
that all inventions made by them in the course of their employment by NCT or
Glycosyn, including all patent rights, shall be assigned to NCT or Glycosyn as
the case may be. Head and Xxxxxxxxxx agree to enter into with NCT, and Glycosyn
shall cause its principal officers and researchers to enter into with it, an
Employee Non-Disclosure and Invention Assignment Agreement in the form attached
hereto as Exhibit A.
6. ACQUISITION FOR INVESTMENT. Glycosyn, on the hand, and Head and
Xxxxxxxxxx, on the other hand, are acquiring the NCT Shares (including the NCT
common shares underlying the Options) and the Glycosyn Shares, respectively, for
their own account, for investment purposes only and not with a view to, or for
sale in connection with, a distribution, as that term is used in Section 2(11)
of the Securities Act of 1933 ("1933 Act") thereof in a manner which would
require registration under the 1933 Act or any state securities laws. Glycosyn,
Head and Xxxxxxxxxx understand that the securities to be acquired by each of
then hereunder cannot be sold or assigned without registration and/or
qualification under the 1933 Act and applicable state securities laws.
Xxxxxxxx, Head and Xxxxxxxxxx understand and acknowledge that the securities to
be acquired by each of them hereunder and the certificates evidencing such
securities will bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR THE
SECURITIES LAWS OF ANY STATE. THE
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SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION THEREOF UNDER THE SECURITIES ACT OF 1933 AND/OR
THE SECURITIES ACT OF ANY STATE HAVING JURISDICTION OR AN
OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS.
7. CONDUCT OF BUSINESS PRIOR TO AND AFTER CLOSING. Glycosyn, on the
one hand, and NCT, Head and Xxxxxxxxxx, on the other hand, agree that prior to
closing or abandonment of the Investment Transaction, each entity will conduct
its business and operations in the ordinary course. NCT, Head and Xxxxxxxxxx
agree that until Glycosyn defaults under the Note or the Options are exercised
in full or expire by their terms, NCT shall not enter into or consummate, nor
solicit or encourage any offers for NCT's involvement in, any of the following
transactions ("Prohibited Transactions"): (i) any merger, consolidation or sale
of assets outside the ordinary course of business by NCT or any affiliate of
NCT; or (ii) any issuance of the equity securities of NCT or any contracts or
rights for a third party's acquisition of the equity securities of NCT. Head
and Xxxxxxxxxx each agree that until Glycosyn defaults under the Note or the
Options are exercised in full or expire by their terms, they will not enter into
or consummate, nor solicit or encourage any offers for, any transfer, sale,
assignment or hypothecation of their common shares of NCT.
8. EXPENSES. Whether or not the parties enter into a Definitive
Agreement, all costs and expenses incurred in connection with this Letter
Agreement and the proposed Investment Transaction shall be paid by the party
incurring such costs or expenses.
9. CLOSING. The parties shall use their best efforts and good faith
to promptly prepare and execute a Definitive Agreement satisfactory to all
parties and close the Investment Transaction no later than November 30, 1997
(the "Closing"). Either party may terminate this Agreement upon 30 days' prior
written notice in the event the other party either: (i) institutes proceedings
to be adjudicated a bankrupt or insolvent, (ii) consents to the institution of
bankruptcy or insolvency proceedings against it; (iii) files a petition or
answer or consent seeking reorganization or relief under the Federal Bankruptcy
Act or any other applicable federal or state law; or (iv) consents to the filing
of any such petition or to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) for it or any substantial
part of its property.
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10. PRESS RELEASES. The parties agree to consult with one another
prior to dissemination of any press release or public disclosure of information
regarding the Investment Transaction contemplated between the parties.
11. BOARD REPRESENTATION. Subject to and concurrent with the
Closing, both Head and Xxxxxxxxxx shall be appointed to the Board of Directors
of Glycosyn and Xxxxx XxXxxx shall be appointed to the Board of Directors of
NCT, and NCT and Glycosyn shall maintain such appointments until such time as
Glycosyn defaults under the Note or the options are exercised in full or expire
by their terms.
12. Miscellaneous. This Letter Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. The rights and obligation of either party to this Letter Agreement may
not be assigned by such party without the prior written consent of the other
party. This Letter Agreement and the exhibits contain the entire agreement of
the parties hereto and may not be modified, altered or changed in any manner
whatsoever, except by a written agreement signed by the parties hereto. This
Letter Agreement may be executed in two counterparts, each signed by one of the
parties and both of said counterparts together shall constitute one and the same
instrument. The parties agree that facsimile signatures may be relied upon by
each of the parties hereto as original signatures. This Letter Agreement shall
be construed and interpreted in accordance with and governed and enforced in all
respects by the laws of the State of North Carolina.
[Continued on next page]
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As noted above, it is understood that this Letter Agreement represents the
binding agreements of the parties. If the matters set forth herein accurately
reflect the terms and conditions of the proposed Investment Transaction, please
execute a copy of this Letter Agreement in the location provided below and
return an executed copy to me. Thank you.
Very truly yours,
GLYCOSYN PHARMACEUTICALS, INC.
By: /s/ Xxxxx XxXxxx
------------------------------------
Xxxxx XxXxxx, President
ACKNOWLEDGED AND AGREED:
NEW CONCEPT THERAPEUTICS, INC.
By: /s/ Xxxxxx Xxxx, President October 31, 1997
----------------------------------
Xxxxxx Xxxx, President
/s/ Xxxxxx Xxxx October 31, 1997
-------------------------------------
Xxxxxx Xxxx, an individual
/s/ Xxxxx Xxxxxxxxxx October 31, 1997
-------------------------------------
Xxxxx Xxxxxxxxxx, an individual
EXHIBIT "A"
EMPLOYEE NONDISCLOSURE
AND
INVENTION ASSIGNMENT AGREEMENT
In consideration of my employment or the continuation of my employment (it
being understood that this Agreement does not itself give me rights to
employment or continued employment) by ___________________________________, or
any of its predecessors, successors, assigns, affiliates or subsidiary companies
(each hereinafter referred to as the "Company"), I agree as follows:
I. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
A. Confidentiality and Confidential Information.
I agree to regard and preserve as confidential all information
obtained by me relating or pertaining to (i) the Company's business, projects,
plans, products, services planned or proposed products or services, customers,
potential customers, trade secrets, and other confidential information
(including business and financial information, and any computer programs and
software or unpublished know-how, whether patented or unpatented), and to (ii)
all of my activities for or on behalf of the Company, and I agree not to publish
or disclose any part of such information to others or use the same for my own
purposes or the purposes of others, during the term of my employment by the
Company or thereafter. Any information of the Company which is not readily
available to the public shall be considered by me to be confidential information
and therefore within the scope of this Agreement, unless the Company advises me
otherwise in writing. I further agree to preserve as confidential the
confidential information of any third party to which I may have access and to
treat such information as though it were Company confidential information.
B. Prevention of Unauthorized Release of Company Confidential
Information.
I agree to promptly advise the Company of any knowledge which I may
have of any unauthorized release or use of any Company confidential information,
and shall take reasonable measures to prevent unauthorized persons or entities
from having access to, obtaining or being furnished with any Company
confidential information.
C. Confidential Information of Third Parties.
I agree not to disclose to the Company and not to use in any way in
connection with my employment by the Company any confidential information or
trade secrets of any kind, or any embodiments thereof, of any previous employer
or other third party. Specifically, and without limitation, I agree to use only
my general knowledge, experience and skill in connection with my employment with
the Company and acknowledge that this is the purpose for which I have been
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hired by the Company.
D. Termination of Employment.
I agree that, upon termination of my employment with the Company
(voluntary or otherwise), I will return to the Company all things belonging to
the Company, and that all documents, records, notebooks and tangible articles
containing or embodying confidential information, including copies thereof, then
in my possession or control, whether prepared by me or others, will be left with
the Company. I recognize that the unauthorized taking of any of the Company's
trade secrets may be is a crime punishable by imprisonment in a state prison or
in a county jail. I further recognize that such unauthorized taking of the
Company's trade secrets may also result in civil liability.
E. Exit Interview.
In consideration of my employment with the Company, I agree that, upon
termination of my employment with the Company (voluntary or otherwise), I will
attend an exit interview and execute a Termination Certificate in a form
substantially the same as that attached hereto as Exhibit A.
II. INVENTIONS
A. Disclosure of Inventions.
I acknowledge and agree that, among my other duties for the Company, I
will be employed by the Company in a position which could provide the
opportunity for conceiving and/or reducing to practice inventions, programs,
codes, improvements, developments, ideas or discoveries, whether patentable or
unpatentable (collectively hereinafter referred to as "Inventions").
Accordingly, I agree to promptly disclose to the Company, in writing, all
Inventions conceived or reduced to practice by me while in the Company's employ,
either solely or jointly with others, and whether or not during regular working
hours. I further agree to maintain adequate and current written records of such
Inventions.
B. Company Inventions.
The assignment provisions in Paragraph II.C below shall apply only to
"Company Inventions" as defined herein. Company Inventions shall mean any
Invention that either:
1. relates, at the time of conception or reduction to practice of
the Invention, to:
a. the Company's business, projects, services or products, or
to the marketing or utilization thereof; or
b. the actual or demonstrably anticipated research or
development of
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the Company; or
2. results from any work performed directly or indirectly by me for
the Company; or
3. results, at least in part, from the use of the Company's time,
materials, facilities or trade secret information.
C. Assignment of Company Inventions.
I hereby assign, and agree to assign, to the Company all my right,
title and interest in and to all Company Inventions. Also, I hereby assign, and
agree to assign, to the Company all Inventions conceived or reduced to practice
by me within one year following my termination of employment with the Company
(voluntary or otherwise), if the Invention is a result of the Company's
information which was obtained by me during my employment with the Company.
D. Execution of Necessary Documents.
I agree that, upon request and without compensation therefor, but at
no expense to me, and whether during the term of my employment or thereafter, I
will do all lawful acts, including the execution of papers and lawful oaths and
the giving of testimony, that in the opinion of the Company, its successors and
assigns, may be necessary or desirable in obtaining, sustaining, reissuing,
extending and enforcing United States and foreign Letters Patent, including
design patents, on all of such Company Inventions, and for perfecting,
affirming, maintaining and recording the Company's complete ownership and title
thereto, and to otherwise cooperate in all proceedings and matters relating
thereto.
E. Exception.
I have listed below all unpatented, but potentially patentable, ideas
and inventions conceived prior to this employment (and which have not been
assigned to a former employer) and which are, therefore, excluded from the scope
of this Agreement:
III. COPYRIGHTS.
I agree that all right, title and interest in any and all copyrights,
copyright registrations and copyrightable subject matter which occur as a result
of my employment with the Company shall be the sole and exclusive property of
the Company, and agree that such works comprise works made for hire. I hereby
assign, and agree to assign, all right, title and interest in any and all
copyrights, copyright registration and copyrightable subject matter which occur
as a result of my employment to the Company. I hereby irrevocably appoint
Company as my attorney-in-fact for the purpose of executing any and all
documents and performing any and all other acts necessary to give effect and
legality to the provisions of this paragraph and paragraph II.D above.
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IV. UNFAIR COMPETITION.
A. During Employment.
I agree that during my employment with the Company I will not
interfere with the business of the Company in any manner. Particularly, but
without limitation, I agree to refrain from planning or organizing a competitive
business during my term of employment. I further agree that during my
employment with the Company, I will not have any proprietary interest in any
competitive business except for an interest of less than five percent (5%) of
the outstanding shares of a publicly-held corporation, meaning a corporation
whose outstanding shares are owned by one hundred (100) or more shareholders.
B. Following Termination (For One Year).
I agree that, for a period of one (1) year immediately following my
termination of employment with the Company (voluntarily or otherwise), I will
not interfere with the business of the Company in any manner. Particularly, but
without limitation, I agree to refrain from the following acts:
1. initiating contact with any employee, consultant or such other
independent contractor of the Company for the purpose of hiring away such
employee, consultant or other independent contractor, and
2. soliciting customers of the Company.
C. Non-Competition.
If permitted by the laws of the state or country where I reside or
where I reside following termination of my employment with the Company, I hereby
agree that for a period of one (1) year immediately following my employment, I
will not compete with the business, products or services of the Company in any
manner within the geographic areas in which such products or services are
distributed or in which such business is conducted.
V. GENERAL PROVISIONS.
A. If any portion of this Agreement is found to be void or unenforceable,
it shall be severed herefrom, leaving in force the remainder of this Agreement.
B. This Agreement will be binding upon my heirs, assigns, executors,
administrators or other legal representatives.
C. No waiver or modification of any of the terms or provisions of this
Agreement shall
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be valid unless contained in a single writing and signed by both myself and
the Company. No course of conduct or manner of dealing with the parties
shall constitute a waiver of any term or provision of this Agreement.
D. In the event that any legal action becomes necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled,
in addition to its court costs, to such reasonable attorney fees, expert witness
fees and legal expenses as shall be fixed by a court of competent jurisdiction.
Subject to the provision of paragraph IV(C), this Agreement shall be governed by
the laws of the State of North Carolina. The exclusive jurisdiction for any
legal proceeding regarding this Agreement shall be in the courts of said state,
and I hereby expressly submit to the jurisdiction of said courts.
E. Nothing in this Agreement shall limit the remedies available to the
Company. Specifically, and without limitation, wherever I have agreed to execute
assignment or other documents for the benefit of the Company, I hereby
irrevocably appoint the Company as my attorney-in-fact for the limited purpose
of executing any and all such documents and performing any and all other acts
necessary to give effect and legality to the provisions of this Agreement.
F. Wherever necessary to carry out the intent of the parties, certain
provisions of this Agreement, including, without limitation, Paragraphs I, II.A,
C, D; III; IV; and V, shall survive the termination of my employment with the
Company and shall continue in full force and effect.
X. X acknowledge that this Agreement is in consideration of my employment
with the Company, whether executed before, at, or following my initial
employment therewith. I further acknowledge that this Agreement does not create
any obligation for my continued employment by the Company.
H. This Agreement, including Exhibit A, contains the entire understanding
between myself and the Company with respect to the subject matter hereof, and
there are no representations, warranties, promises or undertakings other than
those contained in the provisions above.
I. This Agreement is executed by me at __________, _______________, this
__ day of October 1997.
WITNESS: EMPLOYEE:
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(Signature) (Signature)
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EXHIBIT A-1
TERMINATION CERTIFICATE
This is to confirm that I have reviewed the Employee Nondisclosure and
Invention Assignment Agreement signed by me on (date) ____________________,
19__, and that I understand the terms of that Agreement and the continuing
obligations I have under that Agreement. During the course of my employment
with ____________________________ (the "Company"), I have had access to
information regarded by the Company as confidential. Confidential information
to which I have had access includes, but is not limited to, information
associated with the following subject matter:
.
I certify that I do not have in my possession or control, nor have I failed
to return, any specifications, drawings, blueprints, reproductions, prototypes,
sketches, notes, reports, proposals or copies thereof, or other documents or
materials, tools, equipment or other property belonging to the Company,
including any documents, records, notebooks and similar repositories of
confidential information, including copies thereof, whether prepared by me or
others.
I further certify that I have complied with and will continue to comply
with all of the terms of the Employee Nondisclosure and Invention Assignment
Agreement signed by me with the Company, including the reporting of any
inventions conceived or reduced to practice by me and covered by the Agreement.
I further agree that in compliance with the Employee Nondisclosure and Invention
Assignment Agreement, I will preserve as confidential all proprietary technical
and business information pertaining to the Company. During the course of my
employment with the Company, I have become familiar with its procedures for
protecting trade secrets and confidential information and agree that they are
reasonable under the circumstances to maintain the secrecy of such information.
Upon termination of my employment with the Company, I will be employed by
(name of new employer) _________________________ in the (division/department)
______________________________ and will be working in connection with the
projects (generally describe the projects):
.
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If requested by the Company, I agree to notify my new employer as to the
general nature or subject matter of the confidential and proprietary information
to which I had access while employed by the Company, and as to my obligations
with respect to such information.
Executed by me at _______________, _______________, this _____ day of
_______________, 19__.
WITNESS: EMPLOYEE:
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(Signature) (Signature)
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