Ohr Pharmaceutical, Inc. S-4/A
EXHIBIT
10.24
NEUBASE
THERAPEUTICS, INC.
AT-WILL
EMPLOYMENT, CONFIDENTIAL INFORMATION,
INVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT
As
a condition of my employment with NeuBase Therapeutics, Inc. (the “Company”), and in consideration of my employment
with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the following provisions
of this At-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement (this “Agreement”).
I
UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED TERM AND CONSTITUTES “AT-WILL”
EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED
BY THE PRESIDENT OR CEO OF THE COMPANY. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME,
WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT THE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER
ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.
A. Definition
of Company Confidential Information. I understand that “Company Confidential Information” means
information (including any and all combinations of individual items of information) that the Company has or will develop,
acquire, create, compile, discover or own, that has value in or to the Company’s business which is not generally known
and which the Company wishes to maintain as confidential. Company Confidential Information includes both information
disclosed by the Company to me, and information developed or learned by me during the course of my employment with the
Company. Company Confidential Information also includes all information of which the unauthorized disclosure could be
detrimental to the interests of the Company, whether or not such information is identified as Company Confidential
Information. By example, and without limitation, Company Confidential Information includes any and all non-public information
that relates to the actual or anticipated business and/or products, research or development of the Company, or to the
Company’s technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other
information regarding the Company’s products or services and markets therefor, customer lists and customers (including,
but not limited to, customers of the Company on which I called or with which I may become acquainted during the term of my
employment), software, developments, inventions, discoveries, ideas, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company
either directly or indirectly in writing, orally or by drawings or inspection of premises, parts, equipment, or other Company
property. Notwithstanding the foregoing, Company Confidential Information shall not include any such information which I can
establish (i) was publicly known or made generally available prior to the time of disclosure by the Company to me;
(ii) becomes publicly known or made generally available after disclosure by the Company to me through no wrongful action or
omission by me; or (iii) is in my rightful possession, without confidentiality obligations, at the time of disclosure by the
Company as shown by my then-contemporaneous written records; provided that any combination of individual items of information
shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are
within such exception, unless the combination as a whole is within such exception. I understand that nothing in this
Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their
employment, as protected by applicable law.
B. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest confidence
and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information. I will
not (i) use Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in the course
of my employment, or (ii) disclose Company Confidential Information to any third party without the prior written authorization
of the President, CEO, or the Board of Directors of the Company. Prior to disclosure, when compelled by applicable law, I shall
provide prior written notice to the President, CEO, and General Counsel of the Company (as applicable). I agree that I obtain
no title to any Company Confidential Information, and that the Company retains all Confidential Information as the sole property
of the Company. I understand that my unauthorized use or disclosure of Company Confidential Information during my employment may
lead to disciplinary action, up to and including, immediate termination and legal action by the Company. I understand that my
obligations under this Section 2.B shall continue after termination of my employment and also that nothing in this
Agreement prevents me from engaging in protected activity, as described in Section 14 below.
C. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly use,
disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or
entity with which I have an obligation to keep such proprietary information or trade secrets in confidence. I further agree that
I will not bring onto the Company’s premises or transfer onto the Company’s technology systems any unpublished document,
proprietary information, or trade secrets belonging to any such third party unless disclosure to, and use by, the Company has
been consented to, in writing, by such third party and the Company.
D. Third
Party Information. I recognize that the Company has received, and in the future may receive, from third parties (for
example, customers, suppliers, licensors, licensees, partners, and collaborators) as well as its subsidiaries and affiliates
(“Associated Third Parties”), information which the Company is required to maintain and treat as
confidential or proprietary information of such Associated Third Parties (“Associated Third Party Confidential
Information”), and I agree to use such Associated Third Party Confidential Information only as directed by the
Company and to not use or disclose such Associated Third Party Confidential Information in a manner that would violate the
Company’s obligations to such Associated Third Parties. By way of example, Associated Third Party Confidential
Information may include the habits or practices of Associated Third Parties, the technology of Associated Third Parties,
requirements of Associated Third Parties, and information related to the business conducted between the Company and such
Associated Third Parties. I agree at all times during my employment with the Company and thereafter, that I owe the Company
and its Associated Third Parties a duty to hold all such Associated Third Party Confidential Information in the strictest
confidence, and not to use it or to disclose it to any person, firm, corporation, or other third party except as necessary in
carrying out my work for the Company consistent with the Company’s agreement with such Associated Third Parties. I
further agree to comply with any and all Company policies and guidelines that may be adopted from time to time
regarding Associated Third Parties and Associated Third Party Confidential Information. I understand that my unauthorized use
or disclosure of Associated Third Party Confidential Information or violation of any Company policies during my employment
may lead to disciplinary action, up to and including, immediate termination and legal action by the Company.
A. Assignment of Inventions. As between the Company and myself, I agree that all right, title, and interest in and to any
and all copyrightable material, notes, records, drawings, designs, logos, inventions, improvements, developments, discoveries,
ideas and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration
with others, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use
of Company’s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets,
mask work rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below
(collectively, “Inventions”), are the sole property of the Company. I also agree to promptly make full written
disclosure to the Company of any Inventions, and to deliver and assign and hereby irrevocably assign fully to the Company all
of my right, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to the Company
of ownership of Inventions that are not yet in existence. 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 Inventions is within the Company’s
sole discretion and for the Company’s sole benefit, and that no royalty or other consideration will be due to me as a result
of the Company’s efforts to commercialize or market any such Inventions.
B. Pre-Existing
Materials. I will inform the Company, in writing, before incorporating any inventions, discoveries, ideas, original
works of authorship, developments, improvements, trade secrets and other proprietary information or intellectual property
rights owned by me or in which I have an interest prior to, or separate from, my employment with the Company, including,
without limitation, any such inventions that meet the criteria set forth herein under Section 3.G (“Prior
Inventions”) into any Invention or otherwise utilizing any Prior Invention in the course of my employment with the
Company; and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable worldwide
license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce,
distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such incorporated or utilized
Prior Inventions, without restriction, including, without limitation, as part of, or in connection with, such Invention, and
to practice any method related thereto. I will not incorporate any inventions, discoveries, ideas, original works of
authorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned
by any third party into any Invention without the Company’s prior written permission. I have attached hereto, as Exhibit
A, a list describing all Prior Inventions that relate to the Company’s current or anticipated business, products,
or research and development or, if no such list is attached, I represent and warrant that there are no such Prior Inventions.
Furthermore, I represent and warrant that if any Prior Inventions are included on Exhibit A, they will not materially
affect my ability to perform all obligations under this Agreement.
C. Moral Rights. Any assignment to the Company of Inventions includes all rights of attribution, paternity, integrity, modification,
disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,”
“artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”).
To the extent that Moral Rights cannot be assigned under applicable law, I hereby waive and agree not to enforce any and all Moral
Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.
D. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic 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, electronic files, reports, or any other format that may be specified by the Company. As
between the Company and myself, the records are and will be available to and remain the sole property of the Company at all times.
E. Further Assurances. 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 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 proper or necessary in order to apply for, register, obtain, maintain, defend,
and enforce such rights, and in order to deliver, assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title, and interest in and to all Inventions, and testifying in a suit or other proceeding relating
to such Inventions. I further agree that my obligations under this Section 3.E shall continue after the termination of
this Agreement.
F. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or
for any other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of
applying for or pursuing any application for any United States or foreign patents or mask work or copyright registrations covering
the Inventions assigned to the Company in Section 3.A, 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 on my behalf to execute and file any
papers and oaths, and to do all other lawfully permitted acts with respect to such Inventions to further the prosecution and issuance
of patents, copyright and mask work registrations with the same legal force and effect as if executed by me. This power of attorney
shall be deemed coupled with an interest, and shall be irrevocable.
G. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING ASSIGNMENT OF INVENTIONS (AS DEFINED
UNDER SECTION 3.A ABOVE) TO THE COMPANY DO NOT APPLY TO ANY INVENTION THAT I DEVELOP ENTIRELY
ON MY OWN TIME WITHOUT USING THE COMPANY’S EQUIPMENT, SUPPLIES, FACILITIES, OR TRADE SECRET INFORMATION, EXCEPT FOR THOSE
INVENTIONS MEETING THE FOREGOING CRITERIA THAT EITHER (I) RELATE AT THE TIME OF CONCEPTION OR REDUCTION TO PRACTICE OF SUCH INVENTION
TO THE COMPANY’S BUSINESS, OR ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT OF THE COMPANY OR (II) RESULT FROM
ANY WORK THAT I PERFORM FOR THE COMPANY. I WILL ADVISE THE COMPANY PROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE CONSTITUTES
AN INVENTION COVERED BY THE EXCEPTION TO ASSIGNMENT DESCRIBED IN THIS SECTION ERROR! REFERENCE SOURCE NOT FOUND..ERROR!
REFERENCE SOURCE NOT FOUND. AND IS NOT OTHERWISE DISCLOSED ON EXHIBIT A TO PERMIT A DETERMINATION OF OWNERSHIP BY THE COMPANY.
ANY SUCH DISCLOSURE WILL BE RECEIVED IN CONFIDENCE.
A. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake
any other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the
Company is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict
with my obligations to the Company.
B. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships,
or commitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company
under this Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further
agree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity,
I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and
warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents),
I have returned all property and confidential information belonging to all prior employers (and/or other third parties I have
performed services for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company,
its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting
from my breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound,
as well as any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as
prohibited by law.
A. Definition
of Electronic Media Equipment and Electronic Media Systems. I understand that “Electronic Media
Equipment” includes, but is not limited to, computers, external storage devices, thumb drives, mobile devices
(including, but not limited to, smart phones, tablets, and e-readers), telephone equipment, and other electronic media
devices. I understand that “Electronic Media Systems” includes, but is not limited to, computer servers,
messaging and email systems or accounts, applications for computers or mobile devices, and web-based services (including
cloud-based information storage accounts).
B. Return of Company Property. I understand that anything that I created or worked on for the Company while working for the
Company belongs solely to the Company and that I cannot remove, retain, or use such information without the Company’s express
written permission. Accordingly, upon separation from employment with the Company or upon the Company’s request at any other
time, I will immediately deliver to the Company, and will not keep in my possession, recreate, or deliver to anyone else, any
and all Company property, including, but not limited to, Company Confidential Information, Associated Third Party Confidential
Information, all Company equipment including all Company Electronic Media Equipment, all tangible embodiments of the Inventions,
all electronically stored information and passwords to access such information, Company credit cards, records, data, notes, notebooks,
reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, photographs, charts,
any other documents and property, and reproductions of any of the foregoing items including, without limitation, those records
maintained pursuant to Section 3.D. Notwithstanding the foregoing, I understand that I am allowed to keep a copy of the
Company’s employee handbook and personnel records relating to my employment.
C. Return of Company Information on Company Electronic Media Equipment. In connection with my obligation to return information
to the Company, I agree that I will not copy, delete, or alter any information, including personal information voluntarily created
or stored, contained in Company Electronic Media Equipment before I return the information to the Company.
D. Return of Company Information on Personal Electronic Media Equipment. In addition, if I have used any personal Electronic
Media Equipment or personal Electronic Media Systems to create, receive, store, review, prepare or transmit any Company information,
including, but not limited to, Company Confidential Information, I agree to make a prompt and reasonable search for such information
in good faith, including reviewing any personal Electronic Media Equipment or personal Electronic Media Systems to locate such
information and, if I locate such information, I agree to notify the Company of that fact and then provide the Company with a
computer-useable copy of all such Company information from those equipment and systems. I agree to cooperate reasonably with the
Company to verify that the necessary copying is completed (including upon request providing a sworn declaration confirming the
return of property and deletion of information), and, upon confirmation of compliance by the Company, I agree to delete and expunge
all Company information.
E. No
Expectation of Privacy in Company Property. I understand that I have no expectation of privacy in Company property, and
I agree that any Company property is subject to inspection by Company personnel at any time with or without further notice.
As to any personal Electronic Media Equipment or personal Electronic Media Systems that I have used for Company purposes, I
agree that the Company, at its sole discretion, may have reasonable access, as determined by the Company in good faith, to
such personal Electronic Media Equipment or personal Electronic Media Systems to review, retrieve, destroy, or ensure the
permanent deletion of Company information from such equipment or systems or to take such other actions necessary to protect
the Company or Company property, as determined by the Company reasonably and in good faith. I also consent to an exit
interview and an audit to confirm my compliance with this Section 5, and I will certify in writing that I have
complied with the requirements of this Section 5.
Upon
separation from employment with the Company, I agree to immediately sign and deliver to the Company the “Termination Certification”
attached hereto as Exhibit C.
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 obligations under this Agreement. I also agree to keep the Company advised of my home and business address for a period of
three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my continuing
obligations provided by this Agreement.
A. Covenant
Not to Compete. I agree that during the course of my employment and for a period of twelve (12) months immediately
following the termination of my relationship with the Company for any reason, whether with or without cause, at the option
either of the Company or myself, with or without notice, I will not, without the prior written consent of the Company: (i)
serve as a partner, principal, licensor, licensee, employee, consultant, officer, director, manager, agent, affiliate,
representative, advisor, promoter, associate, investor, or otherwise for (except for passive ownership of one percent (1%) or
less of any entity whose securities have been registered under the Securities Act of 1933, as amended, or Section 12 of the
Securities Exchange Act of 1934, as amended); (ii) directly or indirectly, own, purchase, organize or take preparatory steps
for the organization of; or (iii) build, design, finance, acquire, lease, operate, manage, control, invest in, work or
consult for or otherwise join, participate in or affiliate myself with, any business whose business, products or operations
are in any respect involved in the Covered Business. For purposes of this Agreement, “Covered Business”
shall mean any business in which the Company is engaged or in which the Company has plans to be engaged, or any service that
the Company provides or has plans to provide. The foregoing covenant shall cover my activities in every part of the
Territory. For purposes of this Agreement, “Territory” shall mean: (i) all counties in the Commonwealth of
Pennsylvania; (ii) all other states of the United States of America in which the Company provided goods or services, had
customers, or otherwise conducted business at any time during the two-year period prior to the date of the termination of my
relationship with the Company; and (iii) any other countries from which the Company maintains non-trivial operations or
facilities, provided goods or services, had customers, or otherwise conducted business at any time during the two-year period
prior to the date of the termination of my relationship with the Company. Should I obtain other employment during my
employment with the Company or within twelve (12) months immediately following the termination of my relationship with the
Company, I agree to provide written notification to the Company as to the name and address of my new employer, the position
that I expect to hold, and a general description of my duties and responsibilities, at least three (3) business days prior to
starting such employment.
B. No Solicitation.
(1)
Non-Solicitation of Customers. I agree that for a period of twelve (12) months immediately following the termination of
my relationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself,
with or without notice, I will not contact, or cause to be contacted, directly or indirectly, or engage in any form of oral, verbal,
written, recorded, transcribed, or electronic communication with any Customer for the purposes of conducting business that is
competitive or similar to that of the Company or for the purpose of disadvantaging the Company’s business in any way. For
purposes of this Agreement, “Customer” shall mean all persons or entities that have used or inquired of the
Company’s services at any time during the two-year period preceding the termination of my employment with the Company. I
acknowledge and agree that the Customers did not use or inquire of the Company’s services solely as a result of my efforts,
and that the efforts of other Company personnel and resources are responsible for the Company’s relationship with the Customers.
I further acknowledge and agree that the identity of the Customers is not readily ascertainable or discoverable through public
sources, and that the Company’s list of Customers was cultivated with great effort and secured through the expenditure of
considerable time and money by the Company.
(2)
Non-Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of
my relationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself,
with or without notice, I will not directly or indirectly solicit or recruit, or attempt to solicit or recruit any employee of
the Company to leave their employment with the Company, nor will I contact any employee of the Company, or cause an employee of
the Company to be contacted, for the purpose of leaving employment with the Company.
(3)
Non-Solicitation of Others. I agree that for a period of twelve (12) months immediately following the termination of my
relationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with
or without notice, I will not solicit, encourage, or induce, or cause to be solicited, encouraged or induced, directly or indirectly,
any franchisee, joint venture, supplier, vendor or contractor who conducted business with the Company at any time during the two-year
period preceding the termination of my employment with the Company, to terminate or adversely modify any business relationship
with the Company or not to proceed with, or enter into, any business relationship with the Company, nor shall I otherwise interfere
with any business relationship between the Company and any such franchisee, joint venture, supplier, vendor or contractor.
C. Acknowledgements. I
acknowledge that I will derive significant value from the Company’s agreement to provide me with Company
Confidential Information to enable me to optimize the performance of my duties to the Company. I further acknowledge that my
fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither to disclose
nor to use Company Confidential Information other than for the Company’s exclusive benefit and my obligations not to
compete and not to solicit contained in subsections (A) and (B) above, is necessary to protect Company Confidential
Information and, consequently, to preserve the value and goodwill of the Company. I also acknowledge the time, geographic and
scope limitations of my obligations under subsections (A) and (B) above are fair and reasonable in all respects, especially
in light of the Company’s need to protect Company Confidential Information and the scope and nature of the
Company’s business, and that I will not be precluded from gainful employment if I am obligated not to compete with the
Company or solicit its customers, employees, or others during the period and within the Territory as described above. In the
event of my breach or violation of this Section 8, or good faith allegation by the Company of my breach or violation
of this Section 8, the restricted periods set forth in this Section 8 shall be tolled until such breach or
violation, or dispute related to an allegation by the Company that I have breached or violated this Section 8, has
been duly cured or resolved, as applicable. I agree that nothing in this Section 8 shall affect my continuing
obligations under this Agreement during and after this twelve (12) month period, including, without limitation, my
obligations under Section 2.
D. Separate Covenants. The covenants contained in subsections (A) and (B) above shall be construed as a series of separate
covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such
separate covenant shall be deemed identical in terms to the covenant contained in subsections (A) and (B) above. If, in any judicial
or arbitral proceeding, a court or arbitrator refuses to enforce any of such separate covenants (or any part thereof), then such
unenforceable covenant (or such part) shall be revised, or if revision is not permitted it shall be eliminated from this Agreement,
to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event that the
provisions of subsections (A) and (B) above are deemed to exceed the time, geographic or scope limitations permitted by applicable
law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted
by such law. In the event that the applicable court or arbitrator does not exercise the power granted to it in the prior sentence,
I and the Company agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision
that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.
I
agree to diligently adhere to all policies of the Company, including the Company’s xxxxxxx xxxxxxx policies and the Company’s
Conflict of Interest Guidelines. A copy of the Company’s current Conflict of Interest Guidelines is attached as Exhibit
D hereto, but I understand that these Conflict of Interest Guidelines may be revised from time to time during my employment.
Without
limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document
required to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this
Agreement will not breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to
my employment by the Company. I hereby represent and warrant that I have not entered into, and I will not enter into, any
oral or written agreement in conflict herewith.
I
acknowledge that I have no reasonable expectation of privacy in any Company Electronic Media Equipment or Company Electronic Media
System. All information, data, and messages created, received, sent, or stored in Company Electronic Media Equipment or Company
Electronic Media Systems are, at all times, the property of the Company. As such, the Company has the right to audit and search
all such items and systems, without further notice to me, to ensure that the Company is licensed to use the software on the Company’s
devices in compliance with the Company’s software licensing policies, to ensure compliance with the Company’s policies,
and for any other business-related purposes in the Company’s sole discretion. I understand that I am not permitted to add
any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems, including, without limitation,
open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed software onto the
Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility to comply
with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and technology
systems to which I will have access in connection with my employment. In addition, as to any personal Electronic Media Equipment
or personal Electronic Media Systems or other personal property that I have used for Company purposes, I agree that the Company
may have reasonable access to such personal Electronic Media Equipment or personal Electronic Media Systems or other personal
property to review, retrieve, destroy, or ensure the permanent deletion of Company information from such equipment or systems
or property or take such other actions that are needed to protect the Company or Company property, as determined by the Company
reasonably and in good faith.
I
am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all Company network
traffic to and from any Company Electronic Media Equipment or Company Electronic Media Systems. The Company reserves the right
to access, review, copy, and delete any of the information, data, or messages accessed through Company Electronic Media Equipment
or Electronic Media Systems, with or without notice to me and/or in my absence. This includes, but is not limited to, all e-mail
messages sent or received, all website visits, all chat sessions, all news group activity (including groups visited, messages
read, and postings by me), and all file transfers into and out of the Company’s internal networks. The Company further reserves
the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet, including websites
visited and any information I have downloaded. In addition, the Company may review Internet and technology systems activity and
analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to legitimate business
purposes.
A. Arbitration.
IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL EMPLOYMENT-RELATED DISPUTES WITH ME, AND MY
RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER BENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE
THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES THAT I MAY HAVE WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,
OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF,
RELATING TO, OR RESULTING FROM MY EMPLOYMENT OR RELATIONSHIP WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT OR
RELATIONSHIP WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE
FEDERAL ARBITRATION ACT AND PURSUANT TO THE ARBITRATION PROVISIONS SET FORTH IN THE PENNSYLVANIA UNIFORM ARBITRATION ACT, PA.
STAT. XXX. TIT. 42, SECTION 7301 ET SEQ. (THE “RULES”) AND PENNSYLVANIA LAW. THE FEDERAL ARBITRATION ACT
GOVERNS THIS AGREEMENT AND SHALL CONTINUE TO APPLY WITH FULL FORCE AND EFFECT, NOTWITHSTANDING THE APPLICATION OF PROCEDURAL
RULES SET FORTH IN THE RULES AND PENNSYLVANIA LAW. I FURTHER AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, I MAY BRING
ANY SUCH ARBITRATION PROCEEDING ONLY IN MY INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, REPRESENTATIVE OR CLASS MEMBER IN ANY
PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE LAWSUIT OR PROCEEDING. I AGREE TO ARBITRATE ANY AND ALL COMMON LAW AND/OR
STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER
WORKERS BENEFIT PROTECTION ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE FAIR LABOR STANDARDS ACT, THE
FAMILY AND MEDICAL LEAVE ACT, THE PENNSYLVANIA HUMAN RELATIONS ACT, THE PENNSYLVANIA EQUAL PAY LAW, AS AMENDED, THE
PENNSYLVANIA MINIMUM WAGE ACT, THE PENNSYLVANIA WAGE PAYMENT AND COLLECTION LAW, CLAIMS RELATING TO EMPLOYMENT STATUS,
CLASSIFICATION AND RELATIONSHIP WITH THE COMPANY, AND CLAIMS OF HARASSMENT, DISCRIMINATION, WRONGFUL TERMINATION, AND BREACH
OF CONTRACT, EXCEPT AS PROHIBITED BY LAW. I ALSO AGREE TO ARBITRATE (EXCEPT AS PROHIBITED BY LAW) ANY AND ALL DISPUTES
ARISING OUT OF OR RELATING TO THE INTERPRETATION OR APPLICATION OF THIS AGREEMENT TO ARBITRATE, BUT NOT DISPUTES ABOUT THE
ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THIS AGREEMENT TO ARBITRATE OR ANY PORTION HEREOF. WITH RESPECT TO ALL SUCH
CLAIMS AND DISPUTES THAT I AGREE TO ARBITRATE, I HEREBY EXPRESSLY AGREE TO WAIVE, AND DO WAIVE, ANY RIGHT TO A TRIAL BY JURY. I
FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME. I
UNDERSTAND THAT NOTHING IN THIS AGREEMENT CONSTITUTES A WAIVER OF ANY RIGHTS I MAY HAVE UNDER APPLICABLE LAW, INCLUDING, BUT
NOT NECESSARILY LIMITED TO, SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT OR THE XXXXXXXX-XXXXX ACT, INCLUDING ANY RIGHTS
PROHIBITING COMPULSORY ARBITRATION. SIMILARLY, NOTHING IN THIS AGREEMENT PROHIBITS ME FROM ENGAGING IN
PROTECTED ACTIVITY, AS SET FORTH BELOW.
B. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION & MEDIATION SERVICES, INC. (“JAMS”),
PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (THE “JAMS RULES”), WHICH ARE AVAILABLE AT xxxx://xxx.xxxxxxx.xxx/xxxxx-xxxxxxxxxx-xxxxxxxxxxx/
AND FROM HUMAN RESOURCES. I AGREE THAT THE ARBITRATOR SHALL
HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION,
AND MOTIONS TO DISMISS, APPLYING THE STANDARDS SET FORTH UNDER THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. I AGREE THAT THE ARBITRATOR
SHALL ISSUE A WRITTEN DECISION ON THE MERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE
UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR MAY AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, WHERE PERMITTED
BY APPLICABLE LAW. I AGREE THAT THE DECREE OR AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT
IN ANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED
BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY FILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO
MUCH OF THE FILING FEES AS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. I AGREE THAT THE ARBITRATOR SHALL
ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH PENNSYLVANIA LAW, INCLUDING THE PENNSYLVANIA RULES OF CIVIL PROCEDURE
AND THE PENNSYLVANIA RULESOF EVIDENCE, AND THAT THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL PENNSYLVANIA LAW TO ANY
DISPUTE OR CLAIM, WITHOUT REFERENCE TO RULES OF CONFLICT-OF-LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH PENNSYLVANIA
LAW, PENNSYLVANIA LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN ALLEGHENY
COUNTY, PENNSYLVANIA.
C. Remedy. EXCEPT AS PROVIDED BY THE RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE, AND FINAL REMEDY
FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE RULES OR THIS AGREEMENT, NEITHER I NOR
THE COMPANY WILL BE PERMITTED TO PURSUE OR PARTICIPATE IN A COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.
D. Administrative
Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE,
OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT,
INCLUDING, BUT NOT LIMITED TO, PENNSYLVANIA WORKERS’ COMPENSATION BOARD, THE PENNSYLVANIA STATE DIVISION OF HUMAN
RIGHTS, THE PHILADELPHIA CITY COMMISSION ON HUMAN RIGHTS (AS APPLICABLE), THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE
NATIONAL LABOR RELATIONS BOARD, THE SECURITIES AND EXCHANGE COMMISSION, OR THE WORKERS’ COMPENSATION BOARD. THIS
AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING A COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY
LAW.
E. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS
OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I FURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND
THAT I HAVE ASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT OF THIS AGREEMENT AND
FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY TRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED
AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.
A. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the Commonwealth of Pennsylvania
without regard to Pennsylvania’s conflicts-of-law rules that may result in the application of the laws of any jurisdiction
other than Pennsylvania. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal
and exclusive jurisdiction and venue of the state and federal courts located in Pennsylvania for any lawsuit filed against me
by the Company.
B. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal representatives,
and will be for the benefit of the Company, its successors, and its assigns. The Associated Third Parties are intended third-party
beneficiaries to this Agreement with respect to my obligations in Section 2.D. Notwithstanding anything to the contrary
herein, the Company may assign this Agreement and its rights and obligations under this Agreement to any successor to all, or
substantially all, of the Company’s relevant assets, whether by merger, consolidation, reorganization, reincorporation,
sale of assets or stock, or otherwise. For the avoidance of doubt, the Company’s successors and assigns are authorized to
enforce the Company’s rights under this Agreement.
C. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and
the Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding
between the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements, discussions,
or representations between us, including, but not limited to, any representations made during my interview(s) or relocation negotiations.
I represent and warrant that I am not relying on any statement or representation not contained in this Agreement. Any subsequent
change or changes in my duties, salary, compensation, conditions or any other terms of my employment will not affect the validity
or scope of this Agreement.
D. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.
E. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision
of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible
so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
F. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in a writing signed by the President or CEO of the Company and me. Waiver by the Company of a breach
of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.
G. Survivorship. The rights and obligations of the Parties to this Agreement will survive termination of my employment with
the Company.
H. Applicability to Past Activities. The Company and I acknowledge that I have been engaged to provide services by the Company
for a period of time prior to the date of this Agreement starting on August 28, 2018 (the “Prior Engagement Period”).
Accordingly, I agree that if and to the extent that, during the Prior Engagement Period: (i) I received access to any information
from or on behalf of Company that would have been Company Confidential Information if I received access to such information during
the period of my employment with the Company under this Agreement; or (ii) I conceived, created, authored, invented, developed
or reduced to practice any item, including any intellectual property rights with respect thereto, that would have been an Invention
if conceived, created, authored, invented, developed or reduced to practice during the period of my employment with the Company
under this Agreement; then any such information shall be deemed Company Confidential Information hereunder and any such item shall
be deemed an Invention hereunder, and this Agreement shall apply to such information or item as if conceived, created, authored,
invented, developed or reduced to practice under this Agreement.
I
understand that nothing in this Agreement limits or prohibits me from filing a charge or complaint with, or otherwise
communicating or cooperating with or participating in any investigation or proceeding that may be conducted by, any federal,
state or local government agency or commission, including the Securities and Exchange Commission, the Equal Employment
Opportunity Commission, the Occupational Safety and Health Administration, and the National Labor Relations Board
(“Government Agencies”), including disclosing documents or other information as permitted by law, without
giving notice to, or receiving authorization from, the Company. Notwithstanding, in making any such disclosures or
communications, I agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information
that may constitute Company Confidential Information to any parties other than the Government Agencies. I further understand
that I am not permitted to disclose the Company’s attorney-client privileged communications or attorney work product.
In addition, I hereby acknowledge that the Company has provided me with notice in compliance with the Defend Trade Secrets
Act of 2016 regarding immunity from liability for limited disclosures of trade secrets. The full text of the notice is
attached in Exhibit B.
| Date: |
12/22/18 |
|
/s/
Xxxxxxxx Xxxxxxx |
| |
|
Signature |
| |
|
|
| |
|
Xxxxxxxx Xxxxxxx |
EXHIBIT
A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
Title |
|
Date |
|
Identifying
Number or Brief Description |
__X_
No inventions or improvements
_____Additional
Sheets Attached
| Date: |
12/22/18 |
|
/s/
Xxxxxxxx Xxxxxxx |
| |
|
Signature |
| |
|
|
| |
|
Xxxxxxxx Xxxxxxx |
EXHIBIT
B
SECTION
7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“
.. . . An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure
of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly
or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law;
or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. . .
.. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the
trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual—(A)
files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court
order.”
EXHIBIT
C
NEUBASE
THERAPEUTICS, INC. TERMINATION CERTIFICATION
This
is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or property,
or reproductions of any and all aforementioned items belonging to NeuBase Therapeutics, Inc. (the “Company”).
Notwithstanding the foregoing, I understand that I may keep a copy of the Company’s employee handbook and personnel records
relating to me.
I
further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention
Assignment, and Arbitration Agreement (the “Agreement”) signed by me, including the reporting of any inventions
and original works of authorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that
Agreement.
I
understand that pursuant to the Agreement, and subject to its protected activity exclusion, I am obligated to preserve, as confidential,
all Company Confidential Information and Associated Third Party Confidential Information, including trade secrets, confidential
knowledge, data, or other proprietary information relating to products, processes, know-how, designs, formulas, developmental
or experimental work, computer programs, databases, other original works of authorship, customer lists, business plans, financial
information, or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants,
or licensees.
I
also acknowledge that under the Agreement, for twelve (12) months from this date, I will not engage in any of the activities prohibited
by Section 8 of the Agreement, including competition with the Company in the “Territory” defined in Section
8.A of the Agreement, and solicitation of employees, customers, vendors, consultants, collaborators, agents, and contractors
of the Company. After leaving the Company’s employment, I will be employed by _____________________________________________________________________________________
in the position of ______________________________________________________________________.
| Date: |
|
|
|
| |
|
Signature |
| |
|
|
| |
|
Xxxxxxxx Xxxxxxx |
| Address for Notifications: |
|
| |
|
| |
|
EXHIBIT
D
NEUBASE
THERAPEUTICS, INC.
CONFLICT OF INTEREST GUIDELINES
It
is the policy of NeuBase Therapeutics, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law
and to adhere to the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors
must avoid activities that are in conflict, or give the appearance of being in conflict, with these principles and with the interests
of the Company. The following are potentially compromising situations that must be avoided:
1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is
a violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment,
Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue influence
or otherwise be improper or embarrassing to the Company.
3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.
4. Initiating
or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship
or is, or appears to be, a personal or social involvement.
5. Initiating
or approving any form of personal or social harassment of employees.
6. Investing
or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such
investment or directorship might influence in any manner a decision or course of action of the Company.
7. Borrowing
from or lending to employees, customers, or suppliers.
8. Acquiring real estate of interest to the Company.
9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any other employer or other person
or entity with whom obligations of confidentiality exist.
10. Unlawfully
discussing prices, costs, customers, sales, or markets with competing companies or their employees.
11. Making any unlawful agreement
with distributors with respect to prices.
12. Improperly
using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.
13. Engaging
in any conduct that is not in the best interest of the Company.
Each
officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines and
to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result
in immediate termination of employment.
Nothing
in these guidelines is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their
employment, as protected by applicable law, including any rights an employee may have under Section 7 of the National Labor Relations
Act. Also, nothing in these guidelines limits or prohibits employees from filing a charge or complaint with, or otherwise communicating
or cooperating with or participating in any investigation or proceeding that may be conducted by, any federal, state or local
government agency or commission, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission,
the Occupational Safety and Health Administration, and the National Labor Relations Board (“Government Agencies”),
including disclosing documents or other information as permitted by law, without giving notice to, or receiving authorization
from, the Company. Notwithstanding, in making any such disclosures or communications, employees must take all reasonable precautions
to prevent any unauthorized use or disclosure of any information that may constitute Company Confidential Information to any parties
other than the Government Agencies. Employees may not disclose the Company’s attorney-client privileged communications or
attorney work product.
