EXHIBIT 10.50
PROPRIETARY INFORMATION AND INVENTIONS,
NON-SOLICITATION AND
NON COMPETITION AGREEMENT
------------------------------------
(Date)
Ladies and Gentlemen:
The following confirms an agreement between Discovery
Laboratories, Inc. a Delaware corporation (the "Company"), and any successor in
interest, and me, which is a material part of the consideration for my
employment or continued employment by the Company
1. Proprietary Information. I recognize that the Company is
engaged in a continuous program of research, development and production. I also
recognize that the Company possesses or has rights to information (including
information developed by me during my employment by the Company) which has
commercial value in the Company's business ("Proprietary Information"). 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.
2. Obligation of Confidentiality. I understand and agree that my
employment creates a relationship of confidence and trust between the Company
and me with respect to (i) all Proprietary Information, and (ii) the
confidential information of others with which the Company has a business
relationship. At all times, both during my employment by the Company and after
its termination, I will keep in confidence and trust all such information, and I
will not use or disclose any such information without the written consent of the
Company, except as may be necessary in the ordinary course of performing my
duties to the Company.
3. Disclosure and Assignment of Inventions. In addition, I hereby agree
as follows:
(a) All Proprietary Information shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole owner
of all trade secrets, patents, trademarks, copyrights, and other rights in
connection therewith. I hereby assign to the Company any rights I may have or
acquire in such Proprietary Information.
(b) All documents, records, apparatus, equipment and other
physical property, whether or not pertaining to Proprietary Information,
furnished to me by the Company or produced by me or others in connection with my
employment shall be and remain the sole property of the Company. I shall return
to the Company all such materials and property as and when requested by the
Company. Even if the Company does not so request, I shall return all such
materials and property upon termination of my employment by me or by the Company
for any reason, and I will not take with me any such material or property or any
reproduction thereof upon such termination.
(c) I will promptly disclose to the Company, or any persons
designated by it, all improvements, inventions, works of authorship, formulas,
ideas, processes, techniques, know-how and data, whether or not patentable
(collectively, "Inventions"), made or conceived, reduced to practice or learned
by me, either alone or jointly with others, during the term of my employment and
for one (1) year thereafter.
(d) All Inventions which I conceive, develop or have developed
(in whole or in part, either alone or jointly with others) and (i) which use or
have used equipment, supplies, facilities or trade secret information of the
Company, or (ii) which use or have used the hours for which I am to be or was
compensated by the Company, or (iii) which relate at the time of conception or
reduction to practice thereof to the business of the Company or its actual or
demonstrably anticipated research and development or (iv) which result from any
work performed by me for the Company, shall be the sole property of the Company
and its assigns (and to the fullest extent permitted by law shall be deemed
works made for hire), and the Company and its assigns shall be the sole owner of
all patents, copyrights and other rights in connection therewith. I hereby
assign to the Company any rights I may have or acquire in such Inventions. I
agree that any Invention required to be disclosed under paragraph (c) above
within one (1) year after the term of my employment shall be presumed to have
been conceived during my employment. I understand that I may overcome the
presumption by showing that such Invention was conceived after the termination
of my employment.
(e) With respect to Inventions described in paragraph (d) above,
I will assist the Company in every proper way (but at the Company's expense) to
obtain and from time to time enforce patents, copyrights or other rights on said
Inventions in any and all countries, and will execute all documents reasonably
necessary or appropriate for this purpose. This obligation shall survive the
termination of my employment, but the Company shall compensate me at a
reasonable rate after such termination for time actually spent by me at the
Company's request on such assistance. In the event that the Company is unable
for any reason whatsoever to secure my signature to any document reasonably
necessary or appropriate for any of the foregoing purposes, (including renewals,
extensions, continuations, divisions, or continuations in part), I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents, as my agents and attorneys-in-fact to act for and in my behalf and
instead of me, but only for the purpose of executing and filing any such
document and doing all other lawfully permitted acts to accomplish the foregoing
purposes with the same legal force and effect as if executed by me.
(f) I understand that this Agreement does not require assignment
of an invention for which no equipment, supplies, facility, or trade secret
information of the Company was used and which was developed entirely on my own
time, unless the invention relates (i) directly to the business of the Company,
or (ii) to the Company's actual or demonstrably anticipated research or
development. However, I will disclose any Inventions as required by paragraph
(c) above in order to permit the Company to determine such issues as may arise.
Such disclosure shall be received in confidence by the Company.
4. Other Business Activities. So that the Company may be aware of
the extent of any other demands upon my time and attention, I will disclose to
the Company (such disclosure to be held in confidence by the Company) the nature
and scope of any other business activity in which I am or become engaged during
the term of my employment. During the term of my employment, I will not engage
in any business activity which is related to the Company's business or its
actual or demonstrably anticipated research and development.
5. Non-Solicitation of Employees, Customers and Others. I will
not now or in the future disrupt, damage, impair or interfere with the business
of the Company, whether by way of interfering with or raiding its employees,
disrupting its relationships with customers, agents, vendors, distributors or
representatives, or otherwise. During my employment with the Company and for
eighteen (18) months thereafter, I will not encourage or solicit any employee of
the Company to leave the Company for any reason; provided, however, that this
obligation shall not affect any responsibility I may have as an employee of the
Company with respect to the bona fide hiring and firing of Company personnel.
6. Prior Inventions. As a matter of record I attach hereto as
Exhibit A a complete list of all inventions or improvements relevant to the
subject matter of my employment by the company which have been made or conceived
or first reduced to practice by me, alone or jointly with others, prior to my
employment with the Company that I desire to remove from the operation of this
Agreement, and I covenant that such list is complete. If no such list is
attached to this Agreement, I represent that I have no such inventions and
improvements at the time of signing this Agreement.
7. Obligations to Former Emplovers. I represent that my execution
of this Agreement, my employment with the Company and my performance of my
proposed duties to the Company in the development of its business will not
violate any obligations I may have to any former employer or any other third
party, including any obligations to keep confidential any proprietary or
confidential information. I have not entered into, and I will not enter into,
any agreement which conflicts with or would, if performed by me, cause me to
breach this Agreement. I further represent that I have no knowledge of any
pending or threatened litigation to which the Company may become a party by
virtue of my association with the Company. I further agree to immediately inform
the Company of any such pending or threatened litigation should it come to my
attention during the course of my employment.
8. Confidential Information of Former Employers. In the course of
performing my duties to the Company, I will not utilize any proprietary or
confidential information of any former employer nor violate any written or oral,
express or implied agreement with any former employer.
9. United States Government Obligations. I acknowledge that the
Company from time to time may have agreements with other persons or with the
United 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. I agree
to be bound by all such obligations and restrictions which are made known to me
and to take all action necessary to discharge the obligations of the Company
under such agreements.
10. Miscellaneous
(a) If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be construed, if
possible, so as to be enforceable under applicable law, else, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
(b) No delay or omission by the Company in exercising any
right hereunder will operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one 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
(c) I expressly consent to be bound by the provisions
hereof for the benefit of the Company or any subsidiary or affiliate thereof to
whose employ I may be transferred without the necessity that this Agreement be
reassigned at the time of such transfer.
(d) This Agreement shall be governed by and construed
under the laws of the State of New York as applied to agreements among New York
residents entered into and to be performed entirely within New York, without
regards to the application of choice of law rules.
(e) This Agreement shall be effective as of the first day
of my employment by the Company, shall be binding upon me, my heirs, executors,
assigns and administrators and shall inure to the benefit of the Company, its
successors and assigns.
Dated:__________________
__________________________
Employee Signature
Name:_____________________
S.S.#:__________________
Accepted and Agreed to:
DISCOVERY LABORATORIES, INC.
By: ___________________
Name: _________________
Title: __________________
EXHIBIT A
Discovery Laboratories, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Ph.D.
Ladies and Gentlemen:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by Discovery Laboratories, Inc.
(the "Company") that have been made or conceived or first reduced to practice by
me, alone or jointly with others, prior to my employment by the Company that I
desire to remove from the operation of the Company's Proprietary Information and
Inventions, Non-Solicitation and Non-Competition Agreement.
_________ No inventions or improvements
_________ See below: Any and all inventions regarding
_________ Additional sheets attached.
2. 1 propose to bring to my employment the following materials and documents of
a former employer:
_________ No materials or documents
_________ See below:
Date: __________________________________ _____________________________
Employee Signature
Name: __________________________________
