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Exhibit 10.29
MYCO PHARMACEUTICALS INC.
EMPLOYEE CONFIDENTIALITY AGREEMENT
This confidentiality agreement is made this 15th day of November 1995,
between Myco Pharmaceuticals Inc., a Delaware corporation (the "Company"), and
Xxxxxx X. Xxxxxxxx ("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 dated November 10, 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
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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.
(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.
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(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 to 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 with the Company, Employee may develop or become aware of
Proprietary Information and/or Intellectual Property. Protection of
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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 with the Company by either the Company
or Employee, maintain in confidence and not utilize the Proprietary Information
or 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. 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), including refraining from
utilizing or transferring any of the Company's materials other than with the
Company's prior written consent, and refraining from using such Proprietary
Information or Intellectual Property for the account of Employee or for any
other person or 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
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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 with 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 (ii) shall, upon leaving the Company,
provide to the Company in writing a full, signed statement of all Inventions
and Intellectual Property in which Employee participated prior to termination
of the employment with the Company.
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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 with 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 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.
You agree that you will provide, and that the Company may similarly
provide in its discretion, a copy of the covenants contained in this Agreement
to any business or enterprise which you may directly, or indirectly, own,
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manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, control or control of, or with which you may
be connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise.
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
provision in the same instance, nor any waiver of the same provision in
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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: Xxxxxx X. Xxxxxxxx
0000-00 Xxxxxxx Xxxxxx
Xxx Xxxxxx, 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 address
shall be effective upon receipt.
