EXHIBIT 10.35
EXHIBIT C
TERAYON COMMUNICATION SYSTEMS, INC.
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
As an employee of Terayon Communication Systems, Inc., a Delaware
corporation, and/or any of its subsidiaries or affiliates (together, the
"Company"), and as a condition of my employment by the Company and in
consideration of the compensation now and hereafter paid to me, I agree to the
following:
1. Maintaining Confidential Information.
(a) Company Information. I agree at all times during the term of my
employment and thereafter to hold in strictest confidence, and not
to use, except for the benefit of the Company, or to disclose to any
person, firm or corporation, without the written authorization of
the Board of Directors of the Company, any trade secrets,
confidential knowledge or data, proprietary materials, or other
proprietary information of the Company. By way of illustration and
not limitation, such proprietary materials and information shall
include proprietary and/or confidential materials and information
relating to software, test data, protocols, assay components,
procedures and formulations, products, processes, know-how, designs,
formulas, methods, developmental or experimental work, improvements,
discoveries, plans for research, new products, marketing and
selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers, and
information regarding the skills and compensation of other employees
of the Company.
(b) Former Employer Information. I agree that I will not, during my
employment with the Company, improperly use or disclose any
proprietary information or trade secrets of my former or concurrent
employers or companies, if any, and that I will not bring onto the
premises of the Company any unpublished documents or property
belonging to my former or concurrent employers or companies unless
consented to in writing by said employers or companies.
(c) Third Party Information. I recognize that the Company has received
and in the future will receive from third parties their confidential
or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and, in some
cases, to use in only for certain limited purposes. I agree that I
owe the Company and such third parties, both during the term of my
employment and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation (except in a manner
that is consistent with the Company's agreement with the third
party) or use it for the benefit of anyone other than the Company or
such third party (consistent with the Company's agreement with the
third party.)
2. Assignment of Inventions and Original Works.
(a) Inventions and Original Works Retained by Me. I have attached hereto
as Exhibit A a complete list of all inventions, original works or
authorship, developments, improvements, and trade secrets, relating
in any way to the Company's present or anticipated business, that I
have, alone or jointly with others, conceived, developed or reduced
to practice prior to the commencement of my employment with the
Company, that I consider to be my property or the property of third
parties and that I wish to have excluded from the scope of the
Agreement. If disclosure of an item in Exhibit A would cause me to
violate any prior confidentiality agreement, I understand that I am
not to list such in Exhibit A but am to inform the Company that all
items have not been listed for that reason. A space is provided on
Exhibit A for such purposes. If no list is attached, I represent
that there are no such items.
(b) Inventions and Original Works Assigned to the Company. I agree that
I will make prompt written disclosure to the Company, will hold in
trust for the sole right and benefit of the Company, and will assign
to the Company all my right, title and interest in and to any ideas,
inventions, compositions of matter, original works of authorship,
developments, improvements or trade secrets which I solely or
jointly conceive or reduced to practice, during the period of my
employment with the Company. I recognize that the Agreement does not
require assignment of any invention which qualifies fully for
protection under Section 2870 of the California Labor Code
(hereinafter "Section 2870"), which provides as follows:
(1) 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:
(a) 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;
(b) Result from any work performed by the employee for
the employer.
(2) To the extent a provision in an employment agreement
proports 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.
I acknowledge that all original works of authorship which are made by me
(solely or jointly with others) within the scope of my employment and which are
protectable by copyright are "works made for hire," as that term is defined by
the United States Copyright Act (17 U.S.C., Section 101).
(a) Inventions and Original Works Assigned to the United States. I agree
to assign to the United States government all my right, title and
interest in and to any and all inventions, original works of
authorship, developments, improvements or trade secrets whenever
full title to same is required to be in the Untied States by a
contract between the Company and the United States or any of its
agencies.
(d) Obtaining Letters Patent, Copyright Registrations and Other
Protections. I will assist the Company in every proper way to obtain
and enforce the United States and foreign proprietary rights
relating to any and all inventions, original works or authorship,
developments, improvements, or trade secrets of the Company in any
and all countries. To that end I will execute, verify and deliver
such documents and perform such other acts (including appearing as a
witness) the Company may reasonably request for use in applying for,
obtaining, perfecting, evidencing, sustaining and enforcing such
proprietary rights and the assignment thereof. In addition, I will
execute, verify and deliver assignments of such proprietary rights
to the Company or its designee. My obligation to assist the company
with respect to proprietary rights in any and all countries shall
continue beyond the termination of my employment, but the Company
shall compensate at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such
assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with
the actions specified in the preceding
paragraph, 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 in my behalf to execute, verify and file any such documents
and to do all other lawfully permitted acts to further the purposes of the
preceding paragraph with the same legal force and effect as if executed by
me. I hereby waive and quitclaim to the Company and all claims of any
nature whatsoever which I now or may hereafter have for infringement of
any and all proprietary rights assigned to the Company.
(c) Obligation to Keep the Company Informed. In addition to my
obligations under paragraph 2(b) above, during the period of my
employment and for one year after termination of my employment for
any reason, I will promptly disclose to the Company fully and in
writing all patent applications filed by me on my behalf. At the
time of each such disclosure, I will advise the Company in writing
of any inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide the Company in writing
all evidence necessary to substantiate that belief. I understand
that the Company will keep in confidence and will not disclose to
third parties without my consent any proprietary information
disclosed in writing to the Company pursuant to the Agreement
relating to inventions that qualify for protection under Section
2870; will preserve the confidentiality of any invention that does
not qualify for protection under Section 2870. I agree to keep and
maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that may be required by the
Company) of all proprietary information developed by me and all
inventions made by me during the period of my employment at the
Company, which records shall be available to and remain the sole
property of the Company at all times.
3. No Conflicting Employment: No Inducement of Other Employees.
I agree that during the period of my employment by the Company I
will not, without the Company's express written consent, engage in any
other employment or business activity directly related to the business in
which the Company is now involved or becomes involved, nor will I engage
in any other activities which conflict with my obligations to the Company.
For the period of my employment by the Company and for one (1) year after
the date of termination of my employment by the Company, I will not induce
any employee of the company to leave the employment of the company.
4. No Conflicting Obligations.
I represent that my performance of all terms of this Agreement and
as an employee of the Company does not and 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 have not entered into, and I
agree I will not enter into, any agreement either written or oral in
conflict herewith.
5. Return of Company Documents and Materials.
When I leave the employ of the Company, I will deliver to the
Company (and will not keep in my possession, recreate or deliver to anyone
else) any and all devices, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, software, test data, protocols, assay components, or
other property, together with all copies, thereof (in whatever medium
recorded belonging to the Company, its successors or assigns. I further
agree that any property situated on the Company's premises and owned by
the Company, including disks and other storage media, filing cabinets or
other work areas, is subject to inspection by Company personnel at any
time with or without notice. Prior to leaving, I will cooperate with the
Company in completing and signing the Company's termination statement for
technical and management personnel.
I have been informed and acknowledge that the unauthorized taking of Company's
trade secrets
(I) could result in civil liability under California Civil Code Section
3426, and that, if willful, could result in an award for triple the
amount of the Company's damages and attorney's fees; and
(II) is a crime under California Penal Code Section 444(c), punishable by
imprisonment for a time not exceeding a year, or by a fine not
exceeding five thousand dollars ($5,000), or by both.
6. Notification of New Employer.
In the event that I leave the employ of the Company, I hereby
consent to the notification of my new employer of my rights and
obligations under this Agreement.
7. Legal and Equitable Remedies.
Because my services are personal and unique and because I may have
access to and become acquainted with the proprietary information of the
Company, the Company shall have the right to enforce this Agreement and
any of its provisions by injunction, specific performance or other
equitable relief, without bond, without prejudice to any other rights and
remedies that the Company may have for a breach of Agreement.
8. General Provisions.
(a) Not an Employment Contract. I agree and understand that nothing
in this Agreement shall confer any right with respect to
continuation of employment by the Company, nor shall it interfere in
any way with my right or the company's right to terminate my
employment at any time, with or without cause.
(b) Governing Law; Consent to Personal Jurisdiction. This Agreement
will be governed by and constructed according to the laws of the
State of California. I hereby expressly consent to the personal
jurisdiction of the state and federal courts located in Santa Xxxxx
County, California for any lawsuit filed there against me by the
Company arising from or relating to this Agreement.
(c) Entire Agreement. This Agreement sets forth the final, complete
and exclusive agreement and understanding between the Company and me
relating to the subject matter hereof and merges all prior
discussions between us. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will
be effective unless in writing and signed by both the Company and
me. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this
Agreement.
(d) Severability. If one or more of the provisions in the Agreement
are deemed unenforceable by law, such provisions shall be deemed
severed from the Agreement and the remaining provisions will
continue in full force and effect.
(e) Successors and Assigns. This Agreement will be binding upon
heirs, executors, administrators and other legal representatives and
will not be for the benefit of the Company, its successors and its
assigns.
(f) Survival. The provisions of this Agreement shall survive the
termination or my employment and the assignment of this Agreement by
the company to any successor in interest or other assignee.
(g) Waiver. No waiver by the company of any breach of this Agreement
shall be a waiver of any proceeding or succeeding breach. No waiver
by the Company of any right under this Agreement shall be construed
as a waiver of any other right. The company shall not be required to
give notice to enforce strict adherence to all terms of this
Agreement.
This Agreement shall be effective as of the first day of my employment with the
Company, which is ________________, 2004.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE DURING
MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S
PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY
FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: July 22, 2004. /s/ Xxxxx Xxxxx
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Signature
ACCEPTED AND AGREED TO: Xxxxx Xxxxx
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Xxxxx Xxxxx
TERAYON COMMUNICATION SYSTEMS, INC.
[ILLEGIBLE]
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By: /s/ Xxxx Xxxxx Address
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Xxxx Xxxxx
EXHIBIT A
Terayon Communication Systems, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Gentlemen:
1. The following is a complete list of all inventions, original works
of authorship, developments, improvements, and trade secrets,
relating in any way to the present or anticipated business of
Terayon Communication Systems, Inc. (the "Company") that have been
made or 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.
- Due to confidentiality agreements with prior employer, I cannot
disclose certain inventions that would otherwise be included on the
above-described list.
- Additional sheets attached.
2. I propose to bring to my employment the following devices, materials
and documents of a former employer or other person to whom I have an
obligation of confidentiality that are not generally available to
the public, which materials and documents may be used in my
employment pursuant to the express written authorization of my
former employer or such other person (a copy of which is attached
hereto):
- No inventions or improvements.
- See below.
- Additional sheets attached.
Date: July 22, 2004. Very truly yours,
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx