CYTODYN, INC.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
FOR EMPLOYEES
I recognize that CytoDyn, Inc. a Colorado corporation, (hereinafter
collectively called the "Company"), is engaged in a continuous program of
research and development of pharmaceutical products ("the "Business"). I
recognize that these programs represent valuable assets to the Company.
In consideration of my employment, the compensation received by me from
the Company from time to time, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged by my signature below, I hereby
agree as follows:
1. As an employee of the Company, I will devote my best efforts
to the interests of the Company and to making contributions and inventions of
value to the Company.
2. I agree that employment creates a relationship of confidence
and trust between the Company and me and, in acknowledgement of this
relationship, I will not engage in any activity, investment, interest or
association:
(a) which is hostile, adverse to or competitive with the
Company, or
(b) which so occupies my attention as to interfere with
the proper and efficient performance of my duties at the Company, or
(c) which interferes with the independent exercise of my
judgment in the Company's interests.
3. I agree that the Company possesses and will continue to
possess information that has been created, discovered, developed or otherwise
become known to the Company (including but without limitation, information
created, discovered, developed or made known to me during the period of or
arising out of my employment by the Company) and/or in which property rights
have been assigned or otherwise conveyed to the Company, which information has
commercial value in the Business. All the aforementioned information is
hereinafter called "Proprietary Information." Proprietary Information, for
purposes of this Agreement, includes all information disclosed to me or known by
me as a result of my employment with the Company, not generally known to the
public, about the Company's products, processes, machines and services,
including research, development, manufacturing, purchasing, finance, data
processing, engineering, marketing, merchandising and selling.
4. As used herein, the period of my employment includes any time
in which I may be retained by the Company as a consultant or on contract before
or after being an employee.
5. All Proprietary Information shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole owner
of all patents and other rights in connection therewith. I hereby assign to the
Company any rights I may have or acquire in such Proprietary Information. At all
times, both during my employment by the Company and after its termination, I
will keep in confidence and trust all Proprietary Information, and I will not
use or disclose any Proprietary Information or anything directly relating to it
without the prior written consent of the Company, except as may be necessary in
the ordinary course of performing my duties as an employee of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information clearly in the public domain and my own knowledge,
skills and experience to whatever extent and in whatever way I wish.
6. I agree that all algorithms, flow charts, sketches,
schematics, drawings, models, plans, specifications, microcodes, computer
programs, documentation, circuit and logic diagrams, circuit layouts,
silkscreens, lab books, research reports and similar items documenting my work
for the Company fall under the category of Work for Hire under the copyright
laws of the United States. In consideration of my employment, I agree that
programs and other such documentation written or created by me in the general
areas of research and development being pursued by or under study by the Company
in the Business shall be presumed to be Works for Hire performed for the
Company, unless I have notified the Company, in writing, that the particular
work is being created outside my employment. Such notification must be made as
soon as is practical and with sufficient detail to identify the material in
question.
I understand that, in the absence of such notification, at the time of
creation or immediately after creation, works made in whole or in part by me
during my employment by the Company, falling within the scope of the Business of
the Company, will be presumed to be Works for Hire. All copyrights to such works
shall be the sole and exclusive property of the Company. I also understand that
all such works are protected by the copyright laws of the United States from the
time of their creation, and that any copying or appropriation of such works by
me, for my own use or that of others for purposes not authorized by the Company
or in its interests, will be in violation of the copyright laws of the United
States and of international copyright conventions. Finally, in consideration of
my employment, I agree to cooperate with the Company in performing all necessary
steps for securing copyright registration of works created by me in whole or in
part. This last obligation shall extend beyond the period of employment,
providing that the Company agrees to provide reasonable expenses and
compensation for my time, such compensation not to exceed twice the highest
hourly rate paid to me during the period of my employment by the Company.
7. In the event of the termination of my employment by me or by
the Company for any reason, I will deliver to the Company all documents and data
of any nature pertaining to my work with the Company and I will not take with me
any documents or data of any description or any reproduction of any description
containing or pertaining to any Proprietary Information.
8. I will promptly disclose to the Company, or any persons
designated by it, all improvements, inventions, formulae, processes, techniques,
skills and data, whether or not patentable, made or conceived or reduced to
practice or learned by me, either alone or jointly with others, during the
period of my employment which are related to or useful in the Business of the
Company, or result from tasks assigned me by the Company or result from the use
of premises owned, leased or contracted for the Company (all said improvements,
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inventions, formulae, processes, techniques, skills and data shall be
collectively hereinafter called "Inventions").
9. I agree that all Inventions shall be the sole property of the
Company and its assigns, and that the Company and its assigns shall be the sole
owner of all patents and other rights in connection therewith. I hereby assign
to the Company any rights I may have or acquire in such Inventions. I further
agree as to all such Inventions to assist the Company in every proper way (but
at the Company's expense) to obtain and enforce from time to time patents on
said Inventions in any and all countries, and to that end I will execute all
documents for use in applying for and obtaining such patents thereon and
enforcing the same, as the Company may desire, together with any assignments
thereof to the Company or persons designated by it. In the event the Company is
unable, because of my mental or physical incapacity or for any reason
whatsoever, to secure my signature to apply for, or to pursue any application
for any United States ("U.S.") or for any foreign patent or copyright covering
Inventions assigned to the Company as stated above, 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 me and on my behalf and stead to
execute and file any such applications and to do all other lawfully permitted
acts to further the prosecution, issuance and renewal of U.S. and foreign
patents and copyrights thereon with the same legal force and effect as if
executed by me. My obligation to assist the Company in obtaining and enforcing
patents for such Inventions in any and all countries shall continue beyond the
termination of my employment, but the Company shall compensate me at a
reasonable rate after such termination for time actually spent by me at the
Company's request with such compensation not to exceed twice the highest hourly
rate paid to me during the period of my employment by the Company.
10. Any provision in this Agreement requiring me to assign my
rights in any Invention does not apply to an Invention for which no equipment,
supplies, facility or trade secret information of the Company was used and which
was developed entirely on my own time, and (a) which does not relate (i) to the
Business of the Company, or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) which does not result from any work
performed by me for the Company. I also agree to assign to or to assign as
directed by the Company all my right, title and interest, in and to any and all
Inventions full title to which is required to be in the U.S. by a contract
between the Company and the U.S. or any of its agencies.
11. As a matter of record, I have identified on Exhibit A,
attached hereto, all Inventions or improvements relevant to the subject matter
of my employment by the Company which have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
the Company, which I desire to remove from the operation of this Agreement; and
I covenant that such list is complete. If there is no such list on Exhibit A, I
represent that there are no such inventions and/or improvements at the time of
signing this Agreement.
12. I represent that my performance of all the terms of this
Agreement and my employment by the Company does not and will not, to the best of
my present knowledge and belief, breach any agreement or duty to keep in
confidence Proprietary Information acquired by me in confidence or in trust
prior to my employment by the Company. I have not entered into, and I agree I
will not enter into, any agreement either written or oral in conflict herewith.
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13. (a) I understand as part of the consideration for the
offer of employment extended to me by the Company and my employment or
continued employment by the Company, that I have not brought and will
not bring with me to the Company or use in the performance of my
responsibilities at the Company any materials or documents of a former
employer which are not generally available to the public, unless I have
obtained written authorization from the former employer for their
possession and use.
(b) The Company has not induced or solicited the breach
of disclosure of any confidential information, trade secrets,
agreement, duty, commitment, understanding by me, or other proprietary
data of any previous employer of mine.
(c) The Company shall not utilize any trade secrets or
confidential business or information of any other person, including any
previous employer of mine, currently known by me.
(d) Accordingly, I advise the Company that the only
materials or documents of a former employer which are not generally
available to the public that I will bring to the Company or use in my
employment are identified in Exhibit A attached hereto, and as to each
such item, I represent that I have obtained, prior to the effective
date of my employment with the Company, written authorization for their
possession and use in my employment with the Company. If there is no
such list on Exhibit A, I represent that there are no such materials
and/or documents at the time of signing this Agreement.
(e) Neither my carrying on the Company's Business as an
employee, nor the conduct of the Company's Business as proposed, will
conflict with or result in a breach of the terms, conditions or
provisions of or constitute a default under any contract, covenant or
instrument under which I am now obligated.
(f) I am not obligated under any contract, agreement or
commitment, or subject to any judgment, decree or order of any court or
administrative agency, that would conflict with my obligation to use my
best efforts to promote the interests of the Company or that would
conflict with the Company's Business now carried on or as proposed to
be conducted.
14. This Agreement shall be effective as of the first day of my
employment by the Company and shall terminate five (5) years from the date of
termination of employment. By signing this Agreement, I acknowledge receipt of a
copy of this Agreement.
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15. This Agreement shall be binding upon me, by heirs, executors,
assigns, and administrators and shall inure to the benefit of the Company, its
successors and assigns.
Dated (today's date): June 18, 2004.
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CAUTION TO EMPLOYEE:
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This Agreement affects important rights.
Do not sign it unless you have read it carefully,
and are satisfied that you understand it completely.
Wellington X. Xxxx
-----------------------------------
Name (Please Print)
/s/ Wellington X. Xxxx
-----------------------------------
Signature
Chief Financial Officer
-----------------------------------
Title
ACCEPTED AND AGREED TO:
CYTODYN, INC.
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Name Xxxxxxx Xxxxx
---------------------------------
Title Vice President
--------------------------------
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EXHIBIT A
1. The following is a complete list of all inventions or
improvements relevant to the subject matter of my employment by CytoDyn, Inc.
(the "Company") which have been made of conceived or first reduced to practice
by me alone or jointly with others prior to my engagement by the Company:
_____ No inventions or improvements
_____ See below
________________________________________________________________________________
________________________________________________________________________________
_____ Additional sheets attached
2. I propose to bring to my employment the following materials
and documents of a former employer which are not generally available to the
public, which materials and documents may be used in my employment:
_____ No materials
_____ See below
________________________________________________________________________________
________________________________________________________________________________
_____ Additional sheets attached
My signature on this document confirms that my continued possession and
use of these materials is authorized.
3. Exceptions to copyright Works for Hire (paragraph 6.)
_____ No exceptions
_____ See below
________________________________________________________________________________
________________________________________________________________________________
_____ Additional sheets attached
_________________________________/______________________________________________
(Please Print Name and Title)
_________________________________/______________________________________________
__________________________ Representative (Please Print Name and Title)
A-1
