Exhibit 10.25
ADVANCIS PHARMACEUTICAL CORPORATION
EMPLOYMENT AGREEMENT
ON IDEAS, INVENTIONS AND
CONFIDENTIAL INFORMATION
In consideration, and as a condition of my employment with ADVANCIS
PHARMACEUTICAL CORPORATION, a Delaware corporation (the "COMPANY"), I hereby
represent to, and agree with the Company as follows:
1. Purpose of Agreement. I understand that the Company is or will be
engaged in a continuous program of research, development, production and
marketing in connection with its business and that it is critical for the
Company to preserve and protect its "Confidential Information" (as defined in
Section 6 below), its rights in "Inventions" (as defined in Section 2 below) and
in all related intellectual property rights. Accordingly, I am entering into
this Employee Agreement on Ideas, Inventions and Confidential Information (the
"AGREEMENT") as a condition of my employment with the Company, whether or not I
am expected to create inventions of value for the Company.
2. Disclosure of Inventions. I will promptly disclose in confidence to the
Company all inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs, drug
delivery systems, databases, mask works and trade secrets (the "INVENTIONS")
that I make or conceive or first reduce to practice or create, either alone or
jointly with others, during the period of my employment, whether or not in the
course of my employment, and whether or not such Inventions are patentable,
copyrightable or protectible as trade secrets.
3. Work for Hire; Assignment of Inventions. I acknowledge and agree that
any copyrightable works prepared by me within the scope of my employment are
"works for hire" under the Copyright Act and that the Company will be considered
the author and owner of such copyrightable works. I agree that all Inventions
that (i) are developed using equipment, supplies, facilities or trade secrets of
the Company, (ii) result from work performed by me for the Company, or (iii)
relate to the Company's business or current or anticipated research and
development, will be the sole and exclusive property of the Company and are
hereby irrevocably assigned by me to the Company from the moment of their
creation and fixation in tangible media.
4. Assignment of Other Rights. In addition to the foregoing assignment of
Inventions to the Company, I hereby irrevocably transfer and assign to the
Company: (i) all worldwide patents, patent applications, copyrights, mask works,
trade secrets and other intellectual property rights in any Invention; and (ii)
any and all "Moral Rights" (as defined below) that I may have in or with respect
to any Invention. I also hereby forever waive and agree never to assert any and
all Moral Rights I may have in or with respect to any Invention, even after
termination of my work on behalf of the Company. "MORAL RIGHTS" mean any rights
to claim authorship of an Invention, to object to or prevent the modification of
any Invention, or to withdraw from circulation or control the publication or
distribution of any Invention, and any similar right, existing under judicial or
statutory law of any country in the world, or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a "moral
right."
5. Assistance. I agree to assist the Company in every proper way to obtain
for the Company and enforce patents, copyrights, mask work rights, trade secret
rights and other legal protections for the Company's Inventions in any and all
countries. I will execute any documents that the Company may reasonably request
for use in obtaining or enforcing such patents, copyrights, mask work rights,
trade secrets and other legal protections. My obligations under this section
will continue beyond the termination of my employment with the Company, provided
that the Company will compensate me at a reasonable rate after such termination
for time or expenses actually spent by me at the Company's request
on such assistance. I appoint the Secretary of the Company as my
attorney-in-fact to execute documents on my behalf for this purpose.
6. Confidentiality Obligations.
6.1 Acknowledgement. I understand that my employment by the Company
creates a relationship of confidence and trust with respect to any information
of a confidential or secret nature that may be disclosed to me by the Company
that relates to the business of the Company or to any parent, subsidiary,
affiliate, customer, consultant or supplier of the Company or any other party
with whom the Company or any other party with whom the Company agrees to hold
such information (including any and all copies thereof) of such party in
confidence (the "CONFIDENTIAL INFORMATION"). Such Confidential Information is
defined more specifically in Section 6.3 below.
6.2 Obligations. I agree to take the following steps to preserve the
confidential and proprietary nature of Confidential Information:
(a) Non-Disclosure. At all times both during and after my employment
with Company, I will not use, disclose or transfer any of the Confidential
Information other than as authorized by Company, except as may be necessary to
perform my duties as an employee of the Company for the benefit of the Company.
I understand that I am not allowed to sell, license or otherwise exploit any
products (including software or content in any form) which embody or otherwise
exploit in whole or in part any Confidential Information.
(b) Disclosure Prevention. I will take all reasonable precautions to
prevent the inadvertent or accidental exposure of Confidential Information.
(c) Removal. I will not remove any Confidential Information from
Company's premises or make copies of such materials except for use in Company's
business.
(d) Return. I will return promptly to Company all Confidential
Information and copies thereof at any time upon the request of Company, in any
event and without such request, prior to the termination of my employment by
Company. I agree not to retain any tangible or intangible copies of any
Confidential Information after my termination of employment for any reason. Upon
termination of my employment, I will not take with me any documents or materials
or copies thereof containing any Confidential Information.
6.3 Confidential Information. The following materials and information
(including any and all copies thereof), whether having existed, now existing, or
to be developed or created during the term of my employment by Company (herein
referred to collectively as the "Confidential Information") whether tangible or
intangible, and whether or how stored, compiled or memorialized physically,
electronically, graphically, photographically or in writing, are covered by this
Agreement and acknowledged by me to be valuable, special and unique assets of
Company the disclosure of which, may be materially damaging.
(a) Software. All information relating to existing software products
and software in various stages of research and development which are not
generally known to the public or within the Internet industry or trade in which
Company competes (such as know-how, Inventions, design specifications,
algorithms, technical formulas, engineering data, benchmark test results, search
engines, Internet and e-commerce tools, methodologies, procedures, techniques,
and information processing processes) and the physical embodiments of such
information (such as drawings, specification sheets, design notes, source code,
object code, HTML code, XML code, scripts, applets, load modules, schematics,
flow charts, logic diagrams, procedural diagrams, coding sheets, work sheets,
documentation,
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annotations, printouts, studies, manuals, proposals and any other
written or machine-readable manuals, proposals and any other written or machine
readable expressions of such information as are fixed in any tangible media).
(b) Other Products and Services. All information relating to
consulting, Inventions, entertainment content, research and development and
other proprietary products or services, whether existing or in various stages of
research and development, which are not generally known to the public or within
the Internet industry or trade in which Company competes (such as know-how,
content, specifications, technical data, engineering data, processes,
techniques, methodologies, and strategies) and the physical embodiments of such
information (such as drawings, schematics, data files, video, text, pictures,
sound, graphics, specification sheets, instructor manuals, course materials,
training aids, video cassettes, transparencies, slides, taped recordings of
presentations, proposals, printouts, studies, contracts, maintenance manuals,
documentation, and any other written or machine-readable expressions of such
information as are fixed in any tangible media).
(c) Business Procedures. All information concerning or relating to the
way Company conducts its business which is not generally known to the public or
within the Internet industry (such as internal business procedures, controls,
internal telephone numbers, plans, licensing techniques and practices, supplier,
subcontractor, consultant, and prime contractor names and contracts and other
vendor information, computer system passwords and other computer security
controls, financial information, distributor information, and employee data) and
the physical embodiments of such information (such as check lists, samples,
services and operational manuals, contracts, proposals, print-outs,
correspondence, forms, listings, ledgers, financial statements, financial
reports, financial and operational analyses, financial and operational studies,
management reports of every kind, databases, personnel records pertaining to
employees other than myself, and any other written or machine-readable
expressions of such information as are fixed in any tangible media).
(d) Marketing Plans and Customer Lists. All information pertaining to
Company's marketing plans and strategies; forecasts and projections; marketing
practices, procedures and policies; financial data; discounts; margins; costs;
credit terms; pricing practices, procedures and policies; domain names; goals
and objectives; quoting practices, procedures and policies; and customer data
including customer lists, contracts, representatives, requirements and needs,
specifications, data provided by or about prospective existing or past customers
and contract terms applicable to such customers and Web site visitor data, and
the physical embodiments of such information (such as license agreements,
customer lists, print-outs, databases, marketing plans, marketing reports,
strategic business plans, marketing analyses and management reports, seminar and
class attendee rosters, trade show or exhibit attendee listings, listings of
potential customers and leads, and any other written or machine-readable
expressions of such information as are fixed in any tangible media).
(e) Not Generally Known. Any information in addition to the foregoing
which is not generally known to the public or within the Internet or
entertainment industry or trade in which Company competes, and the physical
embodiments of such information in any tangible form, whether written or
machine-readable in nature.
6.4 General Knowledge. The general skills, knowledge and experience gained
during my employment with Company, and information publicly available or
generally known within the industry or trade in which Company competes, is not
considered Confidential Information. Also, upon termination of my employment
with Company, I shall not, subject to the provisions of Section 7 below, be
restricted from working with a person or entity which has independently
developed information or materials similar to Confidential Information as long
as I comply with my continuing obligations under this Agreement.
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6.5 Information Disclosed Remains Property of Company. I agree and
acknowledge that all ideas, concepts, information, and written material
disclosed to me by Company, or acquired from a customer or prospective customer
of Company are and shall remain the sole and exclusive property and Confidential
Information of Company or such customers, and are disclosed in confidence by
Company or permitted to be acquired from such customers in reliance on my
agreement to maintain them in confidence and not to use or disclose them to any
other person except in furtherance of Company's business and for Company's
benefit.
7. Non-Solicitation. I agree that any attempt on my part to induce others
to leave Company's employ, or any effort by me to interfere with Company's
relationship with its other employees would be harmful and damaging to Company.
I agree that during employment and for a period of two (2) years thereafter, I
will not in any way, directly or indirectly (i) induce or attempt to induce any
employee of Company to quit employment with Company; (ii) otherwise interfere
with or disrupt Company's relationship with its employees; (iii) solicit,
entice, or hire away any employee of Company; or (iv) hire or engage any
employee of Company or any former employee of Company whose employment with
Company ceased less than one (1) year before the date of such hiring or
engagement.
8. Project Completion. I agree to give Company at least thirty (30) days
prior written notice of termination to minimize any adverse effect on Company
for any project in which I might be involved on behalf of Company. I agree to
use my best efforts prior to termination to complete any project then assigned
to me to the reasonable satisfaction of the Company, and to be available
thereafter as reasonably required to assist with a transition and to answer
questions explaining the work done by me prior to termination.
9. Notification. I hereby authorize the Company to notify my actual or
future employers of the terms of this Agreement and my responsibilities
hereunder.
10. Name and Likeness Rights. I hereby authorize the Company to use,
reuse, and to grant others the right to use and reuse my name, photograph,
likeness (including caricature), voice, and biographical information, and any
reproduction or simulation thereof, in any media now known or hereafter
developed (including, but not limited to, film, video and digital or other
electronic media), both during and after my employment, for whatever purposes
the Company deems necessary.
11. Injunctive Relief. I understand that in the event of a breach or
threatened breach of this Agreement by me, the Company may suffer irreparable
harm and will therefore be entitled to injunctive relief to enforce this
Agreement, without the necessity of posting bond or other security.
12. Assignment. My rights, interest and benefits hereunder shall not be
assigned, transferred, pledged, or hypothecated in any way by me. The rights and
obligations of the Company under this Agreement shall inure to the benefit of
and be binding upon the successors of Company. If Company shall at any time be
merged or consolidated with or into another corporation, or if substantially all
the assets of Company are transferred to another corporation, the provisions of
this Agreement shall be binding on and shall inure to the benefit of the
corporation resulting from such merger or consolidation or to which such assets
shall be transferred.
13. Governing Law; Severability. This Agreement will be governed and
interpreted in accordance with the internal laws of the State of Maryland,
without regard to or application of choice-of-law rules or principles. In the
event that any provision of this Agreement is found by a court, arbitrator or
other tribunal to be illegal, invalid or unenforceable, then such provision
shall not be voided, but shall be enforced to the maximum extent permissible
under applicable law, and the remainder of this Agreement shall remain in full
force and effect.
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14. Forum Selection. The parties agree that any legal proceeding,
commenced by one party against the other, shall be brought in any state or
Federal court having proper jurisdiction, within the State of Maryland. Both
parties submit to such jurisdiction, and waive any objection to venue and/or
claim of inconvenient forum.
15. No Breach of Prior Agreement. I represent that my performance of all
the terms of this Agreement and my duties as an employee of the Company will not
breach any invention assignment, proprietary information, confidentiality or
similar agreement with any former employer or other party. I represent that I
will not bring with me to the Company or use in the performance of my duties for
the Company any documents or materials or intangibles of a former employer or
third party that are not generally available to the public or have not been
legally transferred to the Company.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Headings. The captions and headings of this Agreement are included for
ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to sections will refer to sections of this
Agreement.
18. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement, and supersedes all prior understandings and agreements, whether oral
or written, between the parties hereto with respect to the specific subject
matter hereof.
19. "At Will" Employment. I understand that this Agreement does not
constitute a contract of employment or obligate the Company to employ me for any
stated period of time. I understand that I am an "at will" employee of the
Company and that my employment can be terminated at any time, for any reason or
for no reason, by either the Company or myself. This Agreement shall be
effective as of the first day of my employment by the Company, which is
.
ADVANCIS PHARMACEUTICAL CORP. EMPLOYEE
By:
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(Signature) (Signature)
Name: Xxxxxx X. Xxxxxx, Ph.D.
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President and Chief Executive Officer Name (Please print)
Date:
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Date
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