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Exhibit 10.38
ANNEX A
CONFIDENTIALITY AGREEMENT
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Myco Pharmaceuticals Inc.
This confidentiality agreement is made this 21st day of June 1995,
between Myco Pharmaceuticals Inc., a Delaware corporation (the "Company"),
and Xxxx Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to retain Employee as an employee of the
Company and Employee wishes to be retained by the Company as an employee of
the Company pursuant to the Offer Letter of June 21, 1995 (the "Offer Letter");
WHEREAS, the Company has developed, and the Company and/or the
Employee may continue to develop during the period Employee is so retained by
the Company, certain Proprietary Information, Inventions and Intellectual
Property (as those terms are hereinafter defined), that the Company wishes to
protect and maintain as confidential;
WHEREAS, the Company from time to time has received, and may continue
to receive during the period Employee is so retained by the Company, the
Proprietary Information of others, and the Company wishes to maintain the
confidentiality of such Proprietary Information; and
WHEREAS, the Company has developed, and will continue to develop during
the period Employee is so retained by the Company, goodwill by, among other
things, substantial expenditure of money and effort;
NOW, THEREFORE, in consideration of the premises set forth below and
the mutual covenants and other undertakings contained in this agreement, and
for other good and valuable consideration, receipt and sufficiency of which
are hereby mutually acknowledged, IT IS AGREED:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) Agreement means this confidentiality agreement,
including all exhibits, schedules and annexations, as all may be amended from
time to time in the manner provided in this Agreement.
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(b) Employment means the current or anticipated or subsequent
retention of Employee by the Company as a full or part-time employee,
consultant or otherwise, or any other period during which Employee receives
compensation from the Company in any capacity.
(c) Intellectual Property means any Invention, writing, trade name,
trademark, service xxxx or any other material registered or otherwise protected
or protectible under state, federal, or foreign patent, trademark, copyright,
or similar laws.
(d) Inventions includes ideas, discoveries, inventions, developments
and improvements, whether or not reduced to practice and whether or not
patentable or otherwise within the definition of Intellectual Property.
(e) Proprietary Information includes any scientific, technical,
trade or business secrets of the Company and any scientific, technical, trade
or business materials that are treated by the Company as confidential or
proprietary, including, but not limited to, Inventions belonging to the
Company and confidential information obtained by or given to the Company about
or belonging to its suppliers, licensors, licensees, partners, affiliates,
customers, potential customers or others.
The definition of "Proprietary Information" herein shall not include
Proprietary Information which (i) was known by Employee prior to its disclosure
by the Company; (ii) is publicly known through publication or otherwise through
no wrongful act of Employee; (iii) is received from a third party who
rightfully discloses it to Employee without restriction on its subsequent
disclosure; or (iv) is disclosed pursuant to the lawful requirement of a
governmental agency or by order of court of competent jurisdiction, provided
that such disclosure is subject to all applicable governmental or judicial
protection available for like material.
2. Employee Acknowledgements. The Company has developed and will
develop its Proprietary Information and Intellectual Property over a
substantial period of time and at a substantial expense, and its Proprietary
Information and Intellectual Property are integral to the goodwill of the
Company. During the course of employment to the Company, Employee may develop
or become aware of Proprietary Information and/or Intellectual Property.
Protection of the Proprietary Information and Intellectual Property is
necessary to conduct the Company's business, and the Company is and shall at
all times remain the sole owner of the Company's Proprietary Information and
Intellectual Property.
3. Confidentiality. Employee shall at all times, both during and after
any termination of Employee's employment to the Company by either the Company
or Employee, maintain in confidence and not utilize the Proprietary Information
or
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the Intellectual Property of the Company, and/or technology or proprietary
information of others under confidential evaluation by the Company except in
performing services for the Company under the Offer Letter. Maintaining such
Proprietary Information and Intellectual Property in confidence shall include
refraining from disclosing such Proprietary Information or Intellectual
Property to any third party (except when duly and specifically authorized in
writing to do so for purpose of furthering the business of the Company), and
refraining from using such Proprietary Information or Intellectual Property for
the account of Employee or for any other person or business entity. Employee
will not file patents based on the Company's technology or confidential
information, nor seek to make improvements thereon, without the Company's
written approval.
Employee agrees not to make any copies of the Proprietary Information
or Intellectual Property of the Company (except when appropriate for the
furtherance of the business of the Company or duly and specifically authorized
to do so) and promptly upon request, whether during or after the period of
employment to the Company, to return to the Company any and all documentary,
machine-readable or other elements or evidence of such Proprietary Information,
Intellectual Property, and any copies of either that may be in Employee's
possession or under Employee's control.
4. Rights to Inventions and Intellectual Property. In connection with
Employee's employment to the Company, or by use of the resources of the
Company, whether or not Employee is then retained by the Company, Employee may
produce, develop, create, invent, conceive or reduce to practice Inventions and
Intellectual Property related to the business of the Company. Employee shall
maintain and furnish to the Company complete and current records of all such
Inventions and Intellectual Property and disclose to the Company in writing any
such Inventions and Intellectual Property. Employee agrees that all such
Inventions and Intellectual Property are and shall be the exclusive property of
the Company, and that the Company may use or pursue them without restriction or
additional compensation.
Employee: (i) hereby assigns, sets over and transfers to the Company all
of his right, title and interest in and to such Inventions and Intellectual
Property; (ii) agrees that Employee and his agents shall, during and after
the period Employee is retained by the Company, cooperate fully in obtaining
patent, trademark, service xxxx, copyright or other proprietary protection for
such Inventions and Intellectual Property, all in the name of the Company (but
only at Company expense), and, without limitation, shall execute all requested
applications, assignments and other documents in furtherance of obtaining such
protection or registration and confirming full ownership by the Company of such
Inventions and Intellectual Property; and (iii) shall, upon leaving the
Company, provide to the Company in writing a full, signed statement of all
Inventions and Intellectual Property in which
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Employee participated prior to termination of the employment to the Company.
Employee hereby designates the Company as its agent, and grants to the Company
a power of attorney with full substitution, which power of attorney shall be
deemed coupled with an interest, for the purposes of effecting the foregoing
assignments from the Employee to the Company.
5. Non-Solicitation. Employee shall not during the term of the
employment or at any time during the two (2) years following termination of
employment, solicit any person who is employed by or a Consultant to the Company
or any affiliate or subsidiary of the Company either during Employee's period
of employment or during such two (2) year period, to terminate such person's
employment by or employment to the Company, such affiliate or subsidiary. As
used herein, the term "solicit" shall include, without limitation, requesting,
encouraging, assisting or causing, directly or indirectly, any such employee or
consultant to terminate such person's employment by or employment to the
Company, affiliate or subsidiary.
6. Continued Obligations. Employee's obligations under this Agreement
shall not be affected: (i) by any termination of Employee's employment,
including termination upon the Company's initiative; nor (ii) by any change in
Employee's position, title or function with the Company; nor (iii) by any
interruption in employment during which Employee leaves and then rejoins the
Company for any period within a period of one year and for any reason. Nothing
herein shall be construed as constituting an employment agreement or an
undertaking by the Company to retain Employee's services for any stated period
of time.
7. No Conflicting Agreements. Employee represents and warrants that
execution and performance of this Agreement does not and will not violate,
conflict with, or constitute a default under any contract, commitment,
agreement, understanding, arrangement, or restriction, or any adjudication,
order, injunction or finding of any kind by any court or agency to which
Employee may be a party or by which Employee may be bound.
8. Remedies. In the event of any breach by employee of any of the
provisions of this Agreement, the Company shall be entitled, in addition to
monetary damages and to any other remedies available to the Company under this
Agreement and at law, to equitable, relief, including injunctive relief, and to
payment by Employee of all costs incurred by the Company in enforcement against
Employee of the provisions of this Agreement, including reasonable attorneys'
fees.
9. General Provisions.
(a) No Waiver. Waiver of any provision of this Agreement, in whole
or in part, in any one instance shall not constitute a waiver of any other
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provision in the same instance, nor any waiver of the same provision in another
instance, but each provision shall continue in full force and effect with
respect to any other then-existing or subsequent breach.
(b) Notice. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered personally or by overnight courier with a
receipt obtained therefore or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employee, to: Xxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
If to the Company, to: Xxxxx X. Xxxxxxxxx, President
Myco Pharmaceuticals Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx 000
Xxxxxxxxx, XX 00000
or to such other address as either party may furnish to the other in writing in
accordance with this Section, except that notices of changes of addresses shall
be effective upon receipt.
(c) Severability. If any provision of this Agreement shall be found to
be invalid, inoperative or unenforceable in law or equity, such finding shall
not affect the validity of any other provisions of this Agreement, which shall
be construed, reformed and enforced to effect the purposes of this Agreement to
the fullest extent permitted by law.
(d) Miscellaneous. This Agreement: (i) may be executed in any number of
counterparts, each of which, when executed by both parties to this Agreement
shall be deemed to be an original, and all of which counterparts together shall
constitute one and the same instrument; (ii) shall be governed by and construed
under the law of the Commonwealth of Massachusetts, without application of
principles of conflicts of laws; (iii) along with the Offer Letter, constitute
the entire agreement of the parties with respect to the subject matter hereof,
superseding all prior oral and written communications, proposals, negotiations,
representations, understandings, courses of dealing, agreements, contracts, and
the like between the parties in such respect; (iv) may be amended, modified, or
terminated, and any right under this Agreement may be waived in whole or in
part, only by a writing signed by both parties; (v) contains headings only for
convenience, which headings do not form part, and shall not be used in
construction, of this Agreement; (vi) shall bind and inure to the benefit of
the
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parties and their respective legal representatives, successors and assigns,
except that no party may delegate any of its or his obligations under this
Agreement, or assign this Agreement, without the prior written consent of the
other party, except the Company may assign this Agreement in connection with
the merger, consolidation, or sale of all or substantially all assets of the
Company; and (vii) be enforced only in courts located within the Commonwealth
of Massachusetts and the parties hereby agree that such courts shall have venue
and exclusive subject matter and personal jurisdiction, and consent to service
of process by registered mail, return receipt requested, or by any other manner
provided by law.
Executed under seal as of the date first above written.
Myco Pharmaceuticals Inc.:
/s/ Xxxxx Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Ph.D.
President
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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