CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with EAGLE LAKE INCORPORATED, a Nevada
corporation, that will change its name to RVision, Inc. in connection with the
closing of the transactions contemplated by that certain Consolidation Agreement
dated August 30, 2005, its parent, affiliates, successors, or assigns, including
without limitation RVISION LLC, a California limited liability company, and
CUSTOM FEDERAL, INC., a California corporation (together the "Company"), and in
consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by the Company, I agree to the
following:
1. Confidential Information.
(a) I agree at all times during my employment with the Company
and thereafter, to hold in strictest confidence, and not to use, except
for the benefit of the Company, to fulfill my employment obligations,
or to disclose to any person, firm, or corporation without written
authorization of the board of directors of the Company, any
Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information,
technical data, trade secrets, or know-how, including research, product
plans, products, methodologies, services, customer lists and customers
(including customers of the Company on whom I called or with whom I
became acquainted during my employment), current and planned customer
requirements, costs, bidding practices, price lists, markets, business
plans, any and all information concerning the business and affairs of
the Company (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), software, database
technologies, systems, structures and architectures, developments,
inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or
other business information disclosed to me by the Company, either
directly or indirectly, in writing, orally, or by drawings or
observation of parts or equipment, any other information, however
documented, and any and all notes, analysis, compilations, studies,
summaries, and other material prepared by or for the Company containing
or based, in whole or in part, on any information included in the
foregoing.
(b) I further acknowledge that such Confidential Information,
even though it may be contributed, developed, or acquired by me,
constitutes valuable, special, and unique assets of the Company, which
are to be held by me in trust and solely for the Company's benefit. I
further understand that Confidential Information does not include any
of the foregoing items that have become publicly known and made
generally available through no wrongful act of mine or of others who
were under confidentiality obligations as to the item or items
involved, or information that I have acquired wholly independently of
my relationship with the Company. I further acknowledge that the
Confidential Information includes "trade secrets." In addition to the
other protections provided herein, all trade secrets shall be accorded
the protections and benefits of the Uniform Trade Secrets Act, any
other applicable law, and the common law.
(c) I agree that I will not, during my employment with the
Company, improperly use or disclose any proprietary information or
trade secrets of any former or concurrent employer or other person or
entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such
employer, person, or entity unless consented to in writing by such
employer, person, or entity.
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Invention Assignment Agreement
(d) I recognize that the Company has received and in the
future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to
maintain the confidentiality of such information and to use it only for
certain limited purposes. I agree to hold all such confidential or
proprietary information in the strictest confidence and not to disclose
it to any person, firm, or corporation or to use it except as necessary
in carrying out my work for the Company consistent with the Company's
agreement with such third party.
2. Inventions.
(a) If in the course of my employment with the Company, I
incorporate into a Company product, process, or machine a Prior
Invention owned by me or in which I have an interest, the Company is
hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made, modify,
use, and sell such Prior Invention as part of or in connection with
such product, process, or machine. "Prior Inventions" shall mean all
Inventions, original works of authorship, developments, concepts,
discoveries, processes, computer programs, know-how, ideas,
methodologies, improvements, and trade secrets that were made by me
prior to my employment with the Company, that belong to me, that relate
to the Company's proposed business, products, or research and
development, and that are not assigned to any entity of the Company
hereunder.
(b) I agree that I will promptly make full written disclosure
to the Company, will hold in trust for the sole right and benefit of
the Company, and hereby assign to the Company, or its designee, all my
right, title, and interest in and to any and all inventions, original
works of authorship, developments, concepts, discoveries, processes,
computer programs, know-how, ideas, methodologies, improvements or
trade secrets, whether or not patentable or registrable under copyright
or similar laws, that I may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to
practice, during the period of time I am in the employ of the Company
(collectively referred to as "Inventions"), except as provided in
Section 2(f) below. I further acknowledge that all original works of
authorship that are made by me (solely or jointly with others) within
the scope of and during the period of my employment with the Company
and that are protectable by copyright are "works made for hire," as
that term is defined in the United States Copyright Act. I understand
and agree that the decision whether or not to commercialize or market
any Invention developed by me solely or jointly with others is within
the Company's sole discretion and for the Company's sole benefit and
that no royalty will be due to me as a result of the Company's efforts
to commercialize or market any such Invention. I shall not incorporate
any invention, original work of authorship, development, concept,
discovery, process, computer program, know-how, ideas, methodology,
improvement, or trade secret owned, in whole or in part, by any third
party into any Invention without the Company's prior written
permission.
(c) I agree to assign to the United States government all my
right, title, and interest in and to any and all Inventions whenever
such full title is required to be in the United States by a contract
between the Company and the United States or any of its agencies.
(d) I agree to keep and maintain adequate and current written
records of all Inventions made by me (solely or jointly with others)
during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may
be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(e) I agree to assist the Company, or its designee, at the
Company's expense, in every proper way to secure the Company's rights
in the Inventions and any copyrights, patents, mask work rights, or
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other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, and all other
instruments that the Company shall deem necessary in order to apply for
and obtain such rights and in order to assign and convey to the
Company, its successors, assigns, and nominees, the sole and exclusive
rights, title, and interest in and to such Inventions, and any
copyrights, patents, mask work rights, or other intellectual property
rights relating thereto. I further agree that my obligation to execute
or cause to be executed, when it is in my power to do so, any such
instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical
incapacity to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright
registrations covering Inventions or original works of authorship
assigned to the Company as above, then I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents as
my agent and attorney-in-fact, to act for and in my behalf and stead to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and
effect as if executed by me.
(f) I understand that the provisions of this Agreement
requiring assignment of Inventions to the Company do not apply to any
Invention that qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit A). I will advise the
Company promptly in writing of any Inventions that I believe meet the
criteria in California Labor Code Section 2870.
(g) The terms of this Agreement shall not grant me any license
or similar right with respect to any patent, copyright, or other
property of the Company.
3. Conflicting Obligations. I represent and warrant to the Company that
I have not entered into any agreements and am not subject to any duties to third
parties that are inconsistent with the terms of this Agreement. I further
represent and warrant to the Company that I am not subject or a party to any
employment agreement, consulting agreement, noncompetition covenant,
nondisclosure agreement, or other agreement, covenant, understanding, or
restriction that would prohibit me from executing this Agreement or from
performing fully, and without limitation, my duties and responsibilities
hereunder. I further warrant that I have provided to the Company a copy of any
employment agreement, consulting agreement, noncompetition covenant,
nondisclosure agreement, or other agreement, covenant, understanding, or
restriction with respect to any employment, consultancy, or confidentiality of
information thereunder, to which I am subject or a party, and that such copy is
a true and correct representation of such agreement. I agree that, during my
employment with the Company, I will not engage in any other employment,
occupation, consulting, or other business activity directly related to the
business in which the Company is now involved or becomes involved during my
employment, nor will I enter into any agreements or commitments or engage in any
other activities that conflict with my obligations to the Company. I further
represent and warrant that my execution of and compliance with this Agreement
and the performance of my duties hereunder will not breach the provisions of any
contract, agreement, or understanding to which I am party or any duty owed by me
to any other person. Notwithstanding the above, nothing in this section 3 shall
(a) prohibit my continued association as an officer and director of Industrial
Security Alliance Partners, Inc. ("ISAP") for a period of six months after the
date of Closing, at which time I shall resign as an employee, officer, and
director of ISAP; (b) prohibit my continued association as an employee,
consultant, or agent of ISAP for a period of one year after the date of Closing,
and (c) prohibit my continued association as a shareholder and the owner of more
than 1% of the outstanding stock of ISAP or its successor.
4. Insider Information. I understand and agree that because of the
special position and relationships of the Company, owners, executives, and
clients that I may learn of certain information that constitutes "insider
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information" for Securities and Exchange Commission and other securities laws
and regulatory purposes. I agree not to disclose any such insider information to
anyone, and not to use such insider information to trade in securities, or to
attempt in any way to profit from any such insider information. I further agree
to execute specific agreements or other documents as requested by the Company in
the future in connection with this provision. Employees of the Company may be
subject to criminal and civil liability for engaging in transactions involving
insider information. Further, such activity may subject the Company to
substantial penalties. The Securities and Exchange Commission aggressively seeks
out and prosecutes persons who trade on insider information. The Company
considers violations of its insider information policy to be grounds for
immediate termination of employment.
5. Returning Company Documents. I agree that, at the time of leaving
the employ of the Company, or at such earlier time as the Company may request, I
will deliver to the Company (and will not keep in my possession, re-create, or
deliver to anyone else) any and all devices, records, data, notes, reports,
methodologies, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items, developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns.
6. Notification of New Employer. In the event that I leave the employ
of the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Representations. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
8. Survival of My Obligations. To the extent allowed by law, I
expressly understand and agree that all of the obligations established by this
Agreement with respect to Inventions, Confidential Information, and trade
secrets, whether patentable or not, shall continue beyond the termination of any
services for or on behalf of the Company.
9. Arbitration and Equitable Relief.
(a) Except as provided in subsection (b) below, any
controversy, claim, or dispute arising out of or in any way relating to
this Agreement, the alleged breach thereof, and/or my employment
relationship with the Company or termination therefrom, including any
and all claims for discrimination or harassment, civil tort, and any
other employment laws, excepting only claims that may not, by statute,
be arbitrated, both the Company (and its directors, officers,
employees, or agents) and I agree to submit any such dispute
exclusively to binding arbitration, except as provided in subsection
(b) below. The Company and I agree that arbitration is the exclusive
remedy for all disputes arising out of or related to my employment
relationship with the Company, except as provided in subsection (b)
below.
(b) The arbitration shall be determined by binding arbitration
administered by the American Arbitration Association. The arbitration
shall be commenced and heard in the county in which the Company's
principal executive offices are located. The arbitrator(s) shall apply
the substantive law (and the law of remedies, if applicable) of
California or federal law, or both, as applicable to the claim(s)
asserted. In any arbitration, the burden of proof shall be allocated as
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provided by applicable law. Either party may bring an action in court
to compel arbitration under this Agreement and to enforce an
arbitration award. Discovery, such as depositions or document requests,
shall be available to the Company and me as though the dispute were
pending in California state court. The arbitrator shall have the
ability to rule on prehearing motions, as though the matter were
pending in California state court, including the ability to rule on a
motion for summary judgment.
(c) I agree that any dispute or controversy arising out of or
relating to any interpretation, construction, performance, or breach of
this Agreement shall be settled by arbitration to be held in California
in accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in
such dispute or controversy. The decision of the arbitrator shall be
final, conclusive, and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. The Company and I shall each pay one-half of the
costs and expenses of such arbitration, and each of us shall separately
pay our counsel fees and expenses.
(d) I agree that it would be impossible or inadequate to
measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1 through 6 herein. Accordingly, I
agree that if I breach any of such sections, the Company will have, in
addition to any other right or remedy available, the right to obtain an
injunction from a court of competent jurisdiction restraining such
breach or threatened breach and to specific performance of any such
provision of this Agreement. I further agree that no bond or other
security shall be required in obtaining such equitable relief and I
hereby consent to the issuance of such injunction and to the ordering
of specific performance.
10. General Provisions.
(a) This Agreement, including all exhibits attached hereto,
will be governed by the internal substantive laws, but not the choice
of law rules, of California. I hereby expressly consent to the personal
jurisdiction of the state and federal courts located in San Diego
County for any lawsuit filed there against me by the Company arising
from or relating to this Agreement.
(b) This Agreement, including all exhibits attached hereto,
set forth the entire agreement and understanding between the Company
and me relating to the subject matter herein and merges all prior
discussions between us. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by both the Company and me. Any
subsequent change or changes in my duties, salary, or compensation will
not affect the validity or scope of this Agreement.
(c) If one or more of the provisions in this Agreement are
deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) This Agreement will be binding upon my heirs, executors,
administrators, and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns.
11. I acknowledge and agree to each of the following items:
(a) I am executing this Agreement voluntarily and without any
duress or undue influence by the Company or anyone else.
(b) I have carefully read this Agreement. I have asked any
questions needed for me to understand the terms, consequences, and
binding effect of this Agreement and fully understand them.
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(c) Before signing this Agreement, I had the opportunity to
seek the advice of an attorney of my choice.
Executed on this 14 day of December, 2005.
EAGLE LAKE INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
President
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx III
---------------------------
Xxxxxx X. Xxxxxx III
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EXHIBIT A
California Labor Code Section 2870:
(a) Any provision in an employment agreement which provides
that an employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own time
without using the employer's equipment, supplies, facilities, or trade
secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or
actual or demonstrably anticipated research or development of
the employer; or
(2) Result from any work performed by the employee
for the employer.
(b) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be assigned under subdivision (a), the
provision is against the public policy of this state and is
unenforceable.
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