Annex A Confidential Information and Inventions Agreement THIS Confidential Information and Inventions Agreement (the "Agreement"), dated
as of ________, 2010, by and between __________, Inc., a Delaware Corporation, with offices at _________________ (the "Company"), and _____________(the "Employee"). WHEREAS, it is Company's policy that as a precondition to entering into its employment, each employee is required to sign a Confidential Information and Inventions Agreement substantially in the form contained herein, NOW THEREFORE, in consideration of the mutual undertakings and premises herein contained, the parties hereto hereby agree as follows:
1. Employees Undertaking.
The Employee hereby undertakes to the Company, including all its parent companies, including without limitation, ___________________, Inc., subsidiaries, affiliates, successors, or assigns (collectively, the "Company Group") as follows:
1.1. Confidential Information. 1.1.1. In the course of providing services to the Company, the Employee may have
access to, and become familiar with, Confidential Information of the Company Group (as hereinafter defined). The Employee shall at all times hereinafter maintain in the strictest confidence all such Confidential Information and shall not divulge any Confidential Information to any person, firm or corporation without the prior written consent of the Company, unless required by applicable law. For purposes hereof, "Confidential Information" shall mean all information in any and all medium which is confidential by its nature, including, without limitation, data, technology, know-how, inventions, discoveries, designs, processes, formulations, models, and/or trade and business secrets, customer lists, financial statements, marketing plans, strategies, forecasts, customer and/or supplier lists and/or relations, research and development activities, computer hardware and software, drawings, operating procedures, pricing methods, marketing strategies, future plans, dealings and transactions relating to any line of business in which the Company Group is involved, as well as similar confidential information of third parties that has been disclosed to the Company Group. Confidential Information will also include the Company Group's marketing and business plans relating to current, planned or nascent products. 1.1.2. The Employee shall not use Confidential Information for, or in connection with, the development, manufacture or the use of any product or for any other purpose whatsoever except for the benefit of the Company Group. 1.1.3. Notwithstanding the foregoing, Confidential Information shall not include information which the Employee can evidence to the Company by appropriate documentation: (i) is in, or enters the public domain otherwise than by reason of a breach hereof by the Employee; (ii) is known by the Employee at the time of disclosure thereof by the Company; (iii) is independently developed by the Employee without recourse to Confidential Information. 1.1.4. All files, records, documents, drawings, specifications, equipment and similar items relating to the business of the Company Group, whether prepared by the Employee or otherwise coming into his possession, and whether classified as Confidential Information or not, shall remain the exclusive property of the Company. Upon termination or expiration of this Agreement, or upon request
by the Company, the Employee shall promptly turn over to the Company all such files, records, reports analysis, documents and other material of any kind concerning the Company Group, which the Employee obtained, received or prepared pursuant to this Agreement. 1.2. Non-Solicitation. Employee hereby covenants that throughout the Employee's employment with the Company and for a period of twelve (12) months following the effective date of termination of Employee's employment for any reason or no reason at all, Employee shall not, whether on his own account and/or on behalf of others, in any way, directly or indirectly solicit, induce, recruit or encourage any of the Company's employees or consultants to terminate their relationship with the Company Group, or attempt to solicit, induce, recruit, encourage or take away employees or consultants of the Company Group, either for the Employee or for any other person or entity. Further, throughout the Employee's employment and at any time following termination of employment with the Company for any reason, with or without cause, the Employee shall not use any Confidential Information of the Company Group, to attempt to negatively influence any of the Company Group's clients or customers from purchasing Company Group products or services or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company Group. Employee is aware of and acknowledges that his obligations under this Section are derived of his access to the Confidential Information and that the options granted to the Employee by the Company shall constitute a special consideration for his obligations under this Section .
Prior Intellectual Property.
The Employee represents and warrants to the Company that he or she is not, and he or she covenants and agrees that he or she will not, use or bring to the Company Group any intellectual property of any kind whatsoever of any prior business or entity with whom the Employee had any prior involvement. The Company and the Employee acknowledge and agree that the Company is not employing the Employee to obtain such intellectual property and the Employee acknowledges that the Company has advised the Employee to comply with any legal obligations the Employee may have to such prior business or entity and the Employee covenants and agrees to hold the Company Group harmless from any and all claims and damages of any kind whatsoever that the Company Group may suffer as a result of the Employee breaching its obligations to such prior business or entity in that regard.
All papers, records, data, notes, drawings, files, documents, samples, devices, products, equipment, and other materials, including copies thereof, relating the Company Group's business that the Employee possesses or creates as a result of his employment with the Company, whether or not confidential, are the sole and exclusive property of the Company Group. In the event of the expiration or termination of his employment with the Company, Employee will promptly deliver all such materials to the Company.
Unless otherwise agreed to, Employee has attached hereto, as Exhibit A, a list describing all inventions, original works of authorship, developments, improvements, and trade secrets which were made by Employee prior to his or her employment with the Company (collectively referred to as "Prior Inventions"), which belong to Employee, which relate to the Company Group's proposed business, products or research and development, and which are not assigned to the Company Group hereunder; or, if no such list is attached, Employee represents that there are no such Prior Inventions. If in the course of his employment with the Company, Employee incorporates into a product, process or machine of the Company Group a Prior Invention owned by Employee or in which Employee has an interest, the Company Group 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. 1.5.2. The Employee will disclose and deliver to the Company for the exclusive use and benefit of the Company any "Inventions", which in this paragraph shall mean any discovery, technique, design, formula, method of manufacture, inventions, secret process, improvements, and modifications (whether or not capable of protection by rights in the nature of intellectual property) which the Employee alone or with one or more others has made or discovered during the term of his Employment with the Company and which pertain to or result from any work which the Employee has done or may hereafter do for the Company, promptly upon the making, devising, or discovering of the same, and will give all information and data in his possession as to the exact mode of working, producing, and using the same and also all such explanations and instructions as may in the view of the Company Group be necessary to enable the full and effectual working, production, or use of the same and will at the expense of the Company Group furnish it with all necessary plans, drawings, formulae, and models. 1.5.3. The Employee will, without charge to but at the expense of the Company Group, execute and do all acts, matters, documents, and things to enable the Company Group or its nominee to apply for and obtain protection for the Inventions in any or all countries and to vest title in the Company Group or such nominee absolutely. 1.5.4. The Employee hereby irrevocably appoints the Company Group to be his attorney in his name and on his behalf to execute and do such acts, matters, documents, and things as aforesaid and generally to use his name for the purpose of giving to the Company Group (or its nominee) the full benefit of the provisions of this section. In favor of any third party, a certificate signed by any director or the secretary of the Company Group that an instrument or act falls within the authority hereby conferred, shall be conclusive evidence that such is the case. 1.5.5. During the term of the Employee's employment with the Company and at all times thereafter the Employee will (whether by omission or commission) do nothing to affect or imperil the validity of the protection for the Inventions obtained or applied for by the Company Group or its nominee pursuant to this paragraph. The Employee will at the direction and expense of the Company Group render all assistance within his or her power to obtain and maintain such protection or application or any extension thereof. 1.5.6. Nothing in this Agreement shall oblige the Company Group to seek patent or other protection for any Invention nor to exploit any Invention. 1.5.7. The Employee shall promptly disclose to the Company all copyright works or designs originated, conceived, written, or made by him or her alone or with others (except only those works originated, conceived, written, or made by him prior to being employed by the Company), and shall until such rights shall be fully and absolutely vested in the Company Group hold them in trust for the Company Group. 1.5.8. The Employee hereby assigns to the Company Group by way of future assignment all copyright, design right, and other proprietary rights, if any, for the full terms thereof throughout the world in respect of all copyright works and designs originated, conceived, written, or made by the Employee (except only those works or designs originated, conceived, written, or made by
the Employee wholly outside his or her normal working hours and wholly unconnected with his or her being employed by the Company) during the period of his or her employment hereunder and during all previous periods of employment with the Company Group. 1.5.9. The Employee will at the request and expense of the Company Group do all things necessary or desirable to substantiate the rights of the Company under Section above, and it is hereby acknowledged and agreed that the provisions of this paragraph shall survive any termination of the employment. 1.5.10. The provisions of this Agreement requiring assignment of inventions to the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B). The Employee will advise the Company promptly in writing of any inventions that the Employee believes meet such provisions.
The Employee agrees to defend, indemnify and hold harmless the Company Group and its directors, officers, agents and employees from and against all claims, losses, liabilities, damages, expenses and costs (including reasonable attorney's fees and costs of litigation regardless of outcome) which result from a breach or alleged breach of any of the representations and warranties contained in Section above.
3. Miscellaneous. 3.1. Governing Law. This Agreement shall be governed by, and construed in accordance with, the 3.2.
laws of the State of California, US, excluding those laws that direct the application of the laws of another jurisdiction. Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable for any reason, that provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the extent possible. In any event, all other provisions of this Agreement shall be deemed valid, and enforceable to the full extent possible. Injunctive Relief; Consent to Jurisdiction. The Employee agrees and acknowledges that damages will not be an adequate remedy in the event of a breach of any of the Employee's obligations under this Agreement. The Employee therefore agrees that the Company shall be entitled (without limitation of any other rights or remedies otherwise available to the Company Group) to obtain, without posting bond, specific performance and preliminary and permanent injunction from any court of competent jurisdiction prohibiting the continuance or recurrence of any breach of this Agreement. Binding Effect; Waiver. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties. The waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof. Headings. The Section headings herein are intended for reference and shall not by themselves determine the construction or interpretation of this Agreement. Entire Agreement; Modifications. This Confidential Information and Inventions Agreement and the Exhibits and Schedules attached hereto contain the entire agreement between the Company and the Employee concerning the subject matter hereof and supersede any and all prior and contemporaneous negotiations, correspondence, understandings, and agreements, whether oral or written, respecting that subject matter. All modifications to this Agreement
shall be in writing and signed by the party against whom enforcement of such modification is sought. 3.7. Assignment. The Employee may not assign or transfer this Agreement in whole or in part to any other party, nor does the Employee have the right to delegate or subcontract any of his duties, rights or obligations hereunder without the prior written consent of the Company, and any attempted assignment, transfer, delegation or subcontracting without the prior written consent of the Company shall be null and void.
4. Termination and Survival.
The Company shall have the right to terminate this Agreement with or without cause upon written notice to the Employee in accordance with the termination provisions of Section Error: Reference source not found of the Employment Agreement entered into by the Employee and the Company on the effective date. Sections and of this Agreement shall survive expiration or termination of this Agreement for any reason, and shall remain in full force and effect. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
____________, INC. By: _________________ Name: ______________ Title: _______________
__________ By: _________________
EXHIBIT A To the Confidential Information and Inventions Agreement LIST OF PRIOR INVENTIONS
EXHIBIT B To the Confidential Information and Inventions Agreement Section 2870 of the California Labor Code is as follows: (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.