EXHIBIT 10.62
CONFIDENTIALITY/INVENTIONS/NONCOMPETITION AGREEMENT
The undersigned, Xxxxxxx X. Xxxxxxx (the "Employee") acknowledges and agrees
that (a) he is entering into this Agreement as an employee of Bioject JV
Subsidiary, Inc., or an entity that controls, is controlled by, or is under
common control with such corporation (collectively, the "Company"), (b) during
the course of such employment, Employee will have access to confidential
information of the Company not readily available to the public and (c) Employee
will be employed in a position of trust and confidence. In consideration of such
employment by the Company and access to confidential information of the Company,
Employee agrees as follows:
1. Obligations. Employee understands and agrees that that the terms and
conditions of this Agreement will survive after the party's employment
relationship ends for any reason.
2. Confidential Information. As used herein, the term Confidential Information
means (a) proprietary information of the Company, such as any information that
constitutes, represents, evidences or records confidential, scientific,
technical, merchandising, production, marketing, pricing, customer preferences,
sales or management information (including, without limitation, customer lists,
plans and supplier lists) or a confidential design, process, procedure,
formulae, invention or improvement (including, without limitation, software),
(b) information designated by the Company as confidential or that the Employee
knows or should know is confidential, and (c) trade secrets of any kind.
Employee acknowledges that all Confidential Information is a valuable asset of
the Company and will continue to be the exclusive property of the Company
whether or not prepared in whole or in part by Employee, and whether or not
disclosed to Employee or entrusted to his or her custody in connection with his
or her employment by the Company.
3. Nondisclosure and Non-Use. Unless authorized or instructed in writing by the
Company or required by legally constituted authority, Employee will not, except
for the benefit of the Company during or after his or her employment, disclose
to others or use any Confidential Information unless and until, and then only to
the extent that such items become available to the public, other than by
Employee's act or failure to act. In addition, Employee agrees to use his or her
best efforts to prevent accidental or negligent loss or release to any
unauthorized person of the Confidential Information. Employee will deliver
immediately to the Company upon its request all Confidential Information in the
possession of Employee. Employee will retain no excerpts, notes, photographs,
reproductions or copies of any Confidential Information whether or not written
or produced by Employee.
4. Noncompetition and Nonsolicitation.
4.1 Employee agrees that during the term of employment and for one year
thereafter, and within the geographic area in which the Company does business,
Employee will not individually and will not serve as or become a director,
officer, partner, limited partner, employee, agent, representative, stockholder,
creditor or consultant of or to, or serve in any other capacity with any
business division which shall in any manner directly engage or prepare to engage
in any business that directly competes with the Company. The Company's Business
is currently defined as a developer/manufacturer/seller of Ambulatory,
Continuous, Blood Glucose Sensors/Monitors. This definition shall include all
business that the Company is engaged in or has documented plans to engage in at
the termination of Employee's employment. This Agreement will not prohibit
Employee from continuing his employment in the medical field in the future and
during the twelve month period following termination, Employee can seek
employment with any medical corporation as long as the division or subsidiary
that he is involved with does not directly compete with the Company's Business.
The noncompetition restriction is not applicable to ownership of five percent
(5%) or less of the stock of any publicly traded corporation
4.2 Employee further agrees that during the term of employment and for a
period of one year thereafter, (a) Employee will not, directly or indirectly,
call on or solicit in any manner on behalf of himself or herself, or on behalf
of any other person, firm or corporation, any customers or suppliers of the
Company with which Employee had any dealings of any kind, or upon whom Employee
called during the course of Employee's employment by the Company for the purpose
of doing business of the type done by the Company (as described above) with such
customer or supplier; and (b) Employee will not solicit, induce, entice or
attempt to solicit, induce, entice or divert away any person who is an employee
of the Company to leave employment with the Company.
4.3 Employee acknowledges and agrees that the time, scope, geographic area
and other provisions of this section are reasonable under the circumstances and
are reasonable to protect the confidential information of the Company. Employee
further agrees that if, at any time, despite the express agreement of the
parties hereto, a court of competent jurisdiction holds that any portion of this
section is unenforceable for any reason, the maximum restrictions of time, scope
or geographic area reasonable under the circumstances, as determined by such
court, will be substituted for any such restrictions held unenforceable.
5. Work Made for Hire. Employee agrees that all creative work prepared or
originated by Employee for the Company or done within the scope of Employee's
employment by the Company, that may be subject to protection under federal
copyright law constitutes "work made for hire," all rights to which are owned by
the Company and, in any event, Employee assigns to the Company all rights, title
and interest, whether by way of copyright, trade secret or otherwise in all such
work, whether or not subject to protection by copyright laws.
6. Ownership of Inventions. Employee agrees that (a) he or she will disclose
immediately to the Company all inventions, discoveries, improvements, trade
secrets, formulae, techniques, processes, know-how and computer programs whether
or not patentable and whether or not reduced to practice, conceived by Employee
during employment by the Company, either alone or jointly with others that
relate to or result from the actual or anticipated business, work, research or
investigations of the Company, or that result to any extent from the use of
Company's premises, or tangible or intangible property (collectively referred to
as "Inventions"), and (b) that all such Inventions will be owned exclusively by
the Company. Employee hereby assigns to the Company all Employee's rights, title
and interest in and to all such Inventions and Employee agrees that the Company
will be the sole owner of all domestic and foreign patent or other rights
pertaining thereto. Employee also agrees during the term of his or her
employment and thereafter, to execute all documents that the Company reasonably
determines to be necessary or convenient for use in applying for, perfecting or
enforcing patents or other intellectual property rights in the Inventions.
7. Obligations to Others. Employee warrants that (a) his or her employment by
the Company does not violate any agreement with any prior employer or other
person or firm to the best of his knowledge, (b) and that he has fully disclosed
to the Company Confidentiality or other Agreements entered into with past
Employers, and (c) Employee will not use or disclose in connection with his or
her employment by the Company any confidential information belonging to any
other person or firm. Employee also agrees to be bound by all confidentiality
and invention obligations and restrictions of the Company to third parties if
Employee is informed of such by the Company and agrees to take all action
necessary to discharge the obligations of the Company thereunder.
8. Remedies. Employee acknowledges that breach of this Agreement could cause
irreparable harm to the Company.
9. Severability; Entire Agreement. The provisions of this Agreement are
severable and if any provision is held invalid or unenforceable, it will be
enforced to the maximum extent permissible and the remaining provisions will
continue in full force and effect. This Agreement contains the entire agreement
between the parties concerning the subject matter addressed herein and
supersedes any other discussions, agreements, representations or warranties of
any kind. Any modification of this Agreement shall be effective only if in
writing and signed by both the Company and the Employee.
10. Law to be Applied. The interpretation of and performance under this
Agreement will be governed by the laws of the State of Massachusetts, exclusive
of choice of law rules, unless Employee is employed outside of Massachusetts and
the law of the state of employment requires otherwise.
NOTICE TO EMPLOYEE: THIS AGREEMENT CONTAINS A NONCOMPETITION COVENANT AND
REQUIRES TRANSFER TO THE COMPANY OF CERTAIN INVENTIONS OR WORKS OF AUTHORSHIP.
YOU MAY WISH TO CONSULT YOUR LEGAL COUNSEL FOR ADVICE.
/s/ Xxxxxxx X. Xxxxxxx 11/9/98
XXXXXXX X. XXXXXXX DATE
