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EXHIBIT 10.10
PATENT AND CONFIDENTIALITY AGREEMENT
Full Name of Employee:
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THIS PATENT AND CONFIDENTIALITY AGREEMENT is between the undersigned
employee (the "Employee") and FARO TECHNOLOGIES, INC., a Florida corporation
(the "Employer") and is effective as of the date set forth underneath the
Employee's signature. It witnesses as follows:
In consideration of Employee's employment or continued employment by
FARO TECHNOLOGIES INC. and its respective subsidiaries, affiliate companies, or
partnerships of which the company is a part, or any of them (hereafter,
collectively referred to as the "Employer") and the compensation to be paid to
Employee for such employment from time to time, Employee hereby agrees as
follows:
1. Assignment of work product; disclosure; confidentiality
(a) Without further consideration, Employee gives, transfers and
assigns to the Employer or to any agent, nominee or assignee, as requested by
the Employer, any and all of his fights to inventions, improvements, discoveries
and ideas made or conceived by Employee, either solely or jointly with others,
relating directly or indirectly to the Employer's business or any extension
thereof during the term of Employee's employment.
(b) Employee agrees to fully disclose exclusively to the Employer all
ideas, products, formulas, methods, plans, developments, improvements, or
patentable inventions, of any kind, known, made or discovered in whole or in
pail by Employee alone or with others during die period of his employment by the
Employer. Employee also agrees to fully disclose exclusively to the Employer all
ideas, products, formulas, methods, plans, developments, improvements or
patentable inventions which relate directly or indirectly to die business of the
Employer and which are known, made or discovered in whole or in part by Employer
alone or with others at any time during the period of employment by the
Employer. All disclosures are to be made promptly after conception or discovery
of the idea, product, formula, method, plan, development, improvement or
invention,
(c) Nothing in this Agreement shall be construed as requiring any
communication to the Employer of an idea, product, formula, method, plan,
development, improvement or invention if protected by tiny other lawful
prohibition against such communication. Any idea, product, formula, method,
plan, development, improvement or invention which Employee is obligated
to disclose to the Employer under this Agreement shall be the property of the
Employer, regardless of whether it is actually disclosed by Employee to Employer
(d) Employee agrees to provide any and all necessary assistance to the
Employer in making any patent applications or other applications for obtaining
exclusive rights, and will do all other things (including but not limited to
testifying in any proceedings or suit, and executing
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any and all applications, assignments, or other documents or instruments) that
may be reasonably necessary to vest in the Employer or the Employees assigns all
of the rights and interest in, and to apply for, obtain and protect any patent
or letters patent, trademark or trade name, or copyrights in the United States
and Canada and any foreign country, as well as any state or other subdivision
thereof for or relating to, die ideas, products, formulas, methods, plans,
developments, improvements or inventions. Employee agrees, at the Employees
expense, to tender all such assistance as the Employer may require in any
proceeding before a patent office or in any litigation involving die aforesaid
inventions,improvements, ideas or discoveries, whether during the period of
employment with the Employer or after the termination thereof.
(e) There are no ideas, products, formulas, methods, plans,
developments, improvements or patentable inventions which Employee desires to
exclude from the operation of this Agreement, except those, if any, designated
by a patent number, application serial number or brief description where no
application has been filed, on the list attached hereto and signed by Employee
and Employer.
(f) Employee agrees and acknowledges that Employee previously may have
acquired, or that during the course of his employment with the Employer, he will
or may be exposed to, or that he may assimilate or have access to certain trade
secrets and information of the Employer including but not limited to products,
formulas, concepts, inventions, methods, processes, costs, operations, product
uses, customers and purchasers (including confidential information of any of the
Employer's customers and information with respect to potential customers and
customer leads) which have not been publicly disclosed or are not matters of
common knowledge in the fields of work of the Employer. Employee agrees that
both during and after the period of employment and performance of services for
the Employer, Employee will not, without prior written consent from the
Employer, in any fashion, form or manner, either intentionally or negligently,
or directly or indirectly, divulge, disclose or communicate any such
confidential information to any third person, partnership, joint venture,
company, corporation or other organization or use such confidential information
other than in the ordinary course of the performance of services for
the Employer, nor shall Employee so divulge, disclose or communicate any other
information of any kind, nature or description concerning any matters affecting
or relating to die business of the Employer, including without limitation any
other information concerning the business of the Employer, its manner of
operation, or its assets, products, formulas, plans, processes, concepts or
other data of any kind, nature or description, without regard to whether any or
all of the foregoing matters would be deemed confidential, material or
important.
(g) The Employee allows certain of its employees to have access to the
following online services: Microsoft Exchange, all FARO servers, and the
Internet. Use of the services by the Employee is strictly limited to legitimate
business purposes of the Employer, and under no circumstances shall the Employee
use these services for personal reasons or any other purpose not related to the
business of the Employer. Furthermore, the Employee is advised that under
certain circumstances transmission of data or messages on the Internet or
through Internet e-mail is not secure and that the transmission of company trade
secrets or any other proprietary information of the Employer on the Internet or
through Internet e-mail is strictly prohibited, unless the Employer has
established appropriate safeguards against the interception or
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misdelivery of such information including, but not limited to the establishment
of firewalls, encryption methods, or other technology that will prevent the
unintended interception of data transmission by third parties on die Internet or
any other on-line service.
(h) The foregoing obligations of confidentiality shall cease to apply
to such parts of the confidential information which Employee has the prior
written permission of all owners thereof to disclose or to use or if the
information becomes general public knowledge through no fault of Employee.
(i) Upon termination of employment by the Employer for whatever reason,
Employee agrees to deliver to the Employer all books, records, products,
formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings,
plans, equipment, computer tapes and diskettes, and all other documents or
materials of a confidential nature or otherwise relating to the Employer's
business, and also all copies of any of the foregoing, which are in Employee's
or his agents' or affiliates' possession or control, and Employee specifically
agrees that he shall not retain any copies or reproductions of such information.
2. Noncompetition and Nonsolicitation. If a "Non-Competition and
Non-Solicitation Agreement" is attached hereto, die Employee agrees to the terms
thereof
Such Addendum is 11 is not D attached
3. Remedies: The failure of the Employee to strictly comply with
the terms of this Agreement shall be cause for immediate dismissal from
employment and in addition, the Employer shall have the following remedies:
(a) Employee hereby agrees to indemnify the Employer in respect of
any and all claims, losses, costs, liabilities and expenses (including
reasonable attorneys' and legal assistants' fees) directly or indirectly
resulting from or arising out of any breach or claimed breach of this Agreement.
(b) Employee agrees that damages at law will be an insufficient
remedy to the Employer if Employee violates the terms of this Agreement and that
the Employer will suffer irreparable damage as a result of such violation.
Accordingly, it is agreed that the Employer shall be entitled, upon application
to a court of competent jurisdiction, to obtain in injunctive relief to enforce
the provisions of this Agreement, which injunctive relief shall be in addition
to any other lights or remedies available to the Employer. In any action or
proceeding by the Employer to obtain a temporary restraining order and
preliminary injunction, the Employee hereby agrees to waive the necessity of the
Employees posting an injunction bond in order to obtain the temporary
restraining order and/or preliminary injunction. If the Employee's action for a
temporary restraining order and/or motion for preliminary injunction is granted
in whole or in part and the Employer is ultimately unsuccessful in obtaining a
permanent injunction to enforce the covenant, the Employee hereby waives any and
all rights he may have against the Employer for any injuries or damages,
including consequential damages, sustained by the Employee and arising directly
or indirectly from the issuance of the temporary restraining order and/or
preliminary injunction.
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(c) If the Employer engages the services of an attorney or any
other third party or in any way initiates legal action to enforce its rights
under this Agreement, Employee agrees to pay to the Employer all costs and
expenses incurred by the Employer relating to the enforcement of this Agreement
(including reasonable attorneys' and legal assistants' fees before, at and after
trial and in appellate, bankruptcy and probate proceedings).
4. MISCELLANEOUS. When used herein, one gender means any
gender. The term "I", "me" or "mine" means the Employee. The term "Company" or
"Corporation" means Employer. Any use of the singular shall include plural and
vice versa. Use of the word "shall" means such action is mandatory. The title of
this Agreement and the paragraph headings are used for the purpose of
convenience only and shall not be used to interpret or explain any portion of
the text hereof
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year indicated below.
Witnesses: Employee Signature:
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Print Name:
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Date:
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FARO Technologies, Inc,
By:
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Print Name:
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Its:
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Date:
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NONCOMPETITION AND NONSOLICITATION ADDENDUM
Employee hereby further agrees to the following:
Noncompetition and Nonsolicitation. The Employee acknowledges that the
Employer, through its employment of DIE Employee, is providing the Employee with
special, unique, and extraordinary training, education and experience,
confidential information, and business and professional contacts. The Employee
further acknowledges that such training, confidential information, and contacts
are solely the result of his employment by the Employer, and that they
constitute legitimate business interests of the Employer. In consideration of
the foregoing and of the benefits generally provided to the Employee by the
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Employer pursuant to the terms of this Agreement and otherwise, the Employee
agrees to abide and be bound by the restrictions and prohibitions of this
Addendum, which restrictions are intended by the parties to extend to any and
all activities of the Employee, whether as an independent contractor, partner or
joint venturer, or as an officer, director, stockholder, agent, employee or
salesman for any person, firm, partnership, corporation or other entity, or
otherwise. The Employee acknowledges that the restrictions and prohibitions of
this Addendum are reasonably necessary to protect the legitimate business
interests of the Employer.
(a) During the term of the Employee's employment, whether pursuant to
this Agreement airy automatic or other renewal hereof, or otherwise, and for a
period of twenty-four (24) months after the expiration or termination of this
Agreement or termination of his employment with the Employer, regardless of the
reason for such termination, the Employee shall not, directly or indirectly,
within a one hundred (100) mile radius of the Employer's current office
locations or such other locations as may constitute offices of the Employer at
the time of termination of the Employee's employment hereunder (the "Restricted
Territory"), enter into, engage in, be employed by, or consult with any
business, regardless of form (i.e., partnership, joint venture, profession
association or other type of corporation, limited liability company, sole
proprietorship or otherwise), in competition with the Employer's business.
(b) During the term of the Employee's employment, whether pursuant to
this Agreement airy automatic or other renewal hereof, or otherwise, and for a
period of twenty-four (24) months after the expiration or termination of this
Agreement, or the termination of his employment with the Employer, regardless of
the reason for such termination, the Employee shall not, directly or indirectly,
solicit or otherwise communicate with any person or business, regardless of form
(i.e., partnership, joint venture, profession association or other type of
corporation, limited liability company, sole proprietorship or otherwise) who
are, were or have been customers of the Employer with the purpose of causing
such person or business to terminate their business relationship with die
Employer, or to do business with, purchase from, or become customers of the
Employee. hi addition, the Employee agrees that during such period he shall not,
directly or indirectly, solicit or otherwise communicate with any employees with
the purpose of causing such employees to terminate their employment with the
Employer, and the Employee agrees that during such period lie shall not,
directly or indirectly, engage, employ, or otherwise hire any persons who are,
were or have been employees of the Employer during the term of this Agreement
and any renewal hereof
(c) The period of time during which the Employee is prohibited from
engaging in certain business practices pursuant to paragraphs 2(a) or (b) shall
be extended by the length of time dining which die Employee is in breach of such
covenants.
(d) It is understood by and between die parties hereto that the
restrictive covenants set forth in paragraphs (a) through (c) hereof are
essential elements of the employment arrangement between Employee and Employer,
and that but for such covenants, the Employer would not have
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agreed to hire the Employee. Such covenants by the Employee shall be construed
as agreements independent of any other provision in this Agreement and of the
employment arrangement between Employee and Employer and shall survive and
continue in effect after the termination or expiration of this Agreement. The
existence of any claim or cause of action of die Employee against the Employer
shall not constitute a defense to the enforcement by the Employer of such
covenants.
(e) It is agreed by the Employer and the Employee that if any portion
of the covenants set forth in this Addendum are held to be invalid,
unreasonable, arbitrary, or against public policy, then such portion of such
covenants shall be considered divisible both as to time and geographical area.
The Employer and the Employee agree that, if any court of competent Jurisdiction
determines the specified time period or the specified geographical area
applicable to this Addendum to be invalid, unreasonable, arbitrary or against
public policy, a lesser time period or geographical area which is determined to
be reasonable, non-arbitrary and not against public policy may be enforced
against the Employee. The Employer and the Employee agree that THE foregoing
covenants are appropriate and reasonable when considered in light of the nature
and extent of the business conducted by the Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum the
dates indicated below.
Witnesses: Employee Signature:
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Print Name:
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---------------------------- Date:
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