EMPLOYEE CONFIDENTIAL INFORMATION,
AND
INVENTION AND NON-COMPETITION AGREEMENT
This Agreement, is made and entered into on the 1ST day of November 2000 by
and between Xxxx X. Xxxxxxxxx, hereinafter "Employee", and Osteotech, Inc. a
Delaware corporation, with its principal place of business located at Eatontown,
New Jersey including any and all current and future subsidiary and/or affiliate
companies hereinafter "Corporation".
WHEREAS, Employee desires to establish an employment relationship and may
receive certain benefits including stock options to be issued to Employee; and
WHEREAS, by reason of employment by Corporation, Employee will receive the
value and advantage of confidential information and special training and skills,
and the expert knowledge and experience of the contacts with other Corporation
employees; and
WHEREAS, the granting of stock options represents a distinct advantage to
Employee and was conditioned upon Employee entering into this Agreement.
NOW THEREFORE, in exchange for good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledge, it is agreed as follows:
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1. Covenant Not to Compete
(a) Employee will not, from and after the date hereof through the
Employee's employment and for twenty-four (24) months after the Employee's
termination for any reason whatsoever including but not limited to involuntary
termination (with or without cause) and/or voluntary termination, (i) directly
or indirectly engage in, represent in any way, or be connected with, any
business or activity which markets, sells or is developing products or services
which compete with the products or services marketed, sold or being developed by
the Corporation at the time of such termination (such business or activity being
hereinafter sometimes called a "Competing Business"), within any state in which
the Corporation transacts business or sells its products or services, whether
such engagement by the Employee shall be as an officer, principal, agent,
director, owner, employee, partner, affiliate, consultant or other participant
in any Competing Business, (ii) assist others in engaging in any Competing
Business in any manner described in the foregoing clause (i), or (iii) induce
other employees of the Corporation to terminate their employment with the
Corporation or engage in any Competing Business.
(b) The Employee understands that the foregoing restrictions may limit
his/her ability to earn a livelihood in a business competitive to the business
of the Corporation, but he/she nevertheless believes that he/she has received
and will receive sufficient consideration and other benefits in connection with
the Corporation's issuance of certain stock options to the Employee as well as
other benefits to clearly justify such restrictions which, in any event (given
his/her education, skills and ability), the Employee does not believe would
prevent him/her from earning a living.
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2. Protection of Information
Employee hereby covenants with Corporation that, throughout the term of
his/her employment by Corporation, Employee will serve Corporation's best
interests loyally and diligently. Throughout the course of employment by
Corporation and thereafter, Employee will not disclose to any person, firm,
corporation or entity (except when authorized by Corporation) any information
relating to Corporation's business, including without limitation, information
relating to trade secrets, business methods, products, processes, procedures,
development or experimental projects, suppliers, customer lists or the needs of
customers or prospective customers, clients, etc., and will not use such
information for his/her own purpose or for the purpose of any person, firm,
corporation or entity, except the Corporation.
3. Corporation Right to Inventions.
The Employee shall promptly disclose, grant and assign ownership to the
Corporation for its sole use and benefit any and all inventions, improvements,
technical information and suggestions relating in any way to the business of the
Corporation (whether patentable or not), which he/she may develop, acquire,
conceive or reduce to practice while employed by the Corporation (whether or not
during usual working hours), together with all patent applications, letters
patent, copyrights and reissues thereof that may at any time be granted for or
upon any such invention, improvement or technical information. In connection
therewith:
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(i) The Employee shall without charge, but at the expense of the
Corporation, promptly at all times hereafter execute and deliver such
applications, assignments, descriptions and other instruments as may be
necessary or proper in the opinion of the Corporation to vest title to any such
inventions, improvements, technical information, patent applications, patents,
copyrights or reissues thereof in the Corporation and to enable it to obtain and
maintain the entire right and title thereto throughout the world; and
(ii) The Employee shall render to the Corporation at its expense (including
a reasonable payment for the time involved in case he is not then in its employ)
all such assistance as it may require in the prosecution of applications for
said patents, copyrights or reissues thereof, in the prosecution or defense of
interferences which may be declared involving any said applications, patents or
copyrights and in any litigation in which the Corporation may be involved
relating to any such patents, inventions, improvements or technical information.
4. No Right to Employment.
Nothing contained herein is intended to entitle the Employee to any right
or claim to be retained as an employee of the Corporation or limit the right of
the Corporation to terminate or modify the employment of the Employee.
5. Remedies; Survival.
(a) The Employee acknowledges and understands that the provisions of this
Agreement are of a special and unique nature, the loss of which cannot be
accurately compensated for in damages by an action at law, and that the breach
or threatened breach of the provisions of this Agreement would cause the
Corporation irreparable harm. In the event of a breach or threatened breach by
the Employee of the provisions in Section 1, 2 or 3 hereof, the Corporation
shall be entitled to but not limited to injunctive relief restraining it from
such breach. Nothing herein contained shall be construed as prohibiting the
Corporation from pursuing any other additional or alternative remedies available
for any breach or threatened breach of this Agreement, including but not limited
to monetary damages.
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(b) Notwithstanding anything contained in this Agreement to the contrary,
the provisions of Sections 1, 2 and 3 and this Section 5, shall survive the
expiration or other termination of this Agreement or employment of the Employee
by the Corporation until, by their terms, such provisions are no longer
operative.
6. Other Agreements: Prohibition Against Use of Trade Secrets of Others,.
Employee represents and warrants to the Corporate that except for
agreements set forth in Exhibit A attached hereto, he/she is not a party to any
agreement or other arrangement with any other corporation, partnership or entity
relating to non-competition with such entity or to non-disclose of confidential
and proprietary information of such entity or to other matters similar to the
matters set forth in this Agreement.
Employee represents, warrants and agrees that he/she can and will perform
his/her duties for the Corporation without the unauthorized use of any
confidential and/or proprietary information of others.
7. General Provisions.
(a) This Agreement and any or all terms hereof may not be changed, waived,
discharged, or terminated orally, but only by way of an instrument in writing
signed by the Chief Executive Officer of the Corporation which employs Employee
or such officer's designee.
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(b) This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey or any other jurisdiction.
(c) It is the desire and intent of the parties hereto that the provisions
of this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, to the extent that a restriction contained in this
Agreement is more restrictive than permitted by the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms of
such restriction, for the purpose only of the operation of such restriction in
such jurisdiction, shall be the maximum restriction allowed by the laws of such
jurisdiction and such restriction shall be deemed to have been revised
accordingly herein.
Employee further consents to personal jurisdiction in the State of New
Jersey for the purposes of enforcing this Agreement and further agrees that the
State of New Jersey is and shall be a convenient forum.
(d) If any portion of this Agreement shall be found to be invalid or
contrary to public policy, the same may be modified or stricken by a Court of
competent jurisdiction, to the extent necessary to allow the Court to enforce
such provision in a manner which is as consistent with the original intent of
the provision as possible. The striking or modification by the Court of any
provision shall not have the effect of invalidating the Agreement as a whole.
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(e) This Agreement shall be binding upon the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(f) This Agreement constitutes the entire and exclusive agreement between
Employee and Corporation pertaining to the subject matter thereof, and
supersedes and replaces any and all earlier confidential information, invention
and non-competition agreements between Corporation and Employee and
representations and understandings of the parties with respect thereto, without
extinguishing whatsoever rights heretofore acquired by Corporation under any
previous agreements.
IN WITNESS WHEREOF, the Agreement has been executed as aforesaid.
OSTEOTECH, INC.
By: /s/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
Chief Executive Officer
By: /s/ XXXX X. XXXXXXXXX
Xxxx X. Xxxxxxxxx
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