Exhibit 10.34
INVENTION AND NON-DISCLOSURE AGREEMENT
This Agreement is made between Metasyn, Inc., a Delaware corporation
(hereinafter referred to collectively with any subsidiaries as the "Company"),
and _________________ (the "Employee").
In consideration of the employment or the continued employment of the
Employee by the Company, the Company and the Employee agree as follows:
1. Proprietary Information.
(a) The Employee agrees that all information, whether or not in
writing, of a private, secret or confidential nature concerning the Company's
business, business relationships or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information may
include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs, customer and supplier
lists, and contacts at or knowledge of customers or prospective customers of the
Company. The Employee will not disclose any Proprietary Information to any
person or entity other than employees of the Company or use the same for any
purposes (other than in the performance of his/her duties as an employee of the
Company) without written approval by an officer of the Company, either during or
after his/her employment with the Company, unless and until such Proprietary
Information has become public knowledge without fault by the Employee.
(b) The Employee agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into
his/her custody or possession, shall be and are the exclusive property of the
Company to be used by the Employee only in the performance of his/her duties for
the Company. All such materials or copies thereof and all tangible property of
the Company in the custody or possession of the Employee shall be delivered to
the Company, upon the earlier of (i) a request by the Company or (ii)
termination of his/her employment. After such delivery, the Employee shall not
retain any such materials or copies thereof or any such tangible property.
(c) The Employee agrees that his/her obligation not to disclose or to
use information and materials of the types set forth in paragraphs (a) and (b)
above, and his/her obligation to return materials and tangible property, set
forth in paragraph (b) above, also extends to such types of information,
materials and tangible property of customers of the Company or suppliers to the
Company or other third parties, including licensors
and licensees, who may have disclosed or entrusted the same to the Company or
to the Employee.
2. Developments.
(a) The Employee will make full and prompt disclosure to the Company of
all inventions, improvements, discoveries, methods, developments, software, and
works of authorship, whether patentable or not, which are created, made,
conceived or reduced to practice by him/her or under his/her direction or
jointly with others during his/her employment by the Company, whether or not
during normal working hours or on the premises of the Company (all of which are
collectively referred to in this Agreement as "Developments").
(b) The Employee agrees to assign and does hereby assign to the Company
(or any person or entity designated by the Company) all his/her right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this paragraph
2(b) shall not apply to Developments which do not relate to the present or
planned business or research and development of the Company and which are made
and conceived by the Employee not during normal working hours, not on the
Company's premises and not using the Company's tools, devices, equipment or
Proprietary Information. The Employee understands that, to the extent this
Agreement shall be construed in accordance with the laws of any state which
precludes a requirement in an employee agreement to assign certain classes of
inventions made by an employee, this paragraph 2(b) shall be interpreted not to
apply to any invention which a court rules and/or the Company agrees falls
within such classes. The Employee also hereby waives all claims to moral rights
in any Developments.
(c) The Employee agrees to cooperate fully with the Company, both
during and after his/her employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and foreign countries)
relating to Developments. The Employee shall sign all papers, including, without
limitation, copyright applications, patent applications, declarations, oaths,
formal assignments, assignments of priority rights, and powers of attorney,
which the Company may deem necessary or desirable in order to protect its rights
and interests in any Development. The Employee further agrees that if the
Company is unable, after reasonable effort, to secure the signature of the
Employee on any such papers, any executive officer of the Company shall be
entitled to execute any such papers as the agent and the attorney-in-fact of the
Employee, and the Employee hereby irrevocably designates and appoints each
executive officer of the Company as his/her agent and attorney-in-fact to
execute any such papers on his/her behalf, and to take any and all actions as
the Company may deem necessary or desirable in order to protect its rights and
interests in any Development, under the conditions described in this sentence.
3. Other Agreements.
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The Employee hereby represents that, except as the Employee has
disclosed in writing to the Company, the Employee is not bound by the terms of
any agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in the
course of his/her employment with the Company or to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party. The Employee further represents that his/her performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence proprietary information, knowledge or data
acquired by the Employee in confidence or in trust prior to his/her employment
with the Company, and the Employee will not disclose to the Company or induce
the Company to use any confidential or proprietary information or material
belonging to any previous employer or others.
4. United States Government Obligations.
The Employee acknowledges that the Company from time to time may have
agreements with the other persons or with the United States Government, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements or
regarding the confidential nature of such work. The Employee agrees to be bound
by all such obligations and restrictions which are made known to the Employee
and to take all action necessary to discharge the obligations of the Company
under such agreements.
5. No Employment Contract.
The Employee understands that this Agreement does not constitute a
contract of employment and does not imply that his/ her employment will continue
for any period of time.
6. Miscellaneous.
(a) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(b) This Agreement supersedes all prior agreements, written or oral,
between the Employee and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole or
in part, except by an agreement in writing signed by the Employee and the
Company. The Employee agrees that any change or changes in his/her duties,
salary or compensation after the signing of this Agreement shall not affect the
validity or scope of this Agreement.
(c) This Agreement will be binding upon the Employee's heirs, executors
and administrators and will inure to the benefit of the Company and its
successors and assigns.
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(d) No delay or omission by the Company in exercising any right under
this Agreement will operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion is effective only in that
instance and will not be construed as a bar to or waiver of any right on any
other occasion.
(e) The Employee expressly consents to be bound by the provisions of
this Agreement for the benefit of the Company or any subsidiary or affiliate
thereof to whose employ the Employee may be transferred without the necessity
that this Agreement be resigned at the time of such transfer.
(f) The restrictions contained in this Agreement are necessary for the
protection of the business and goodwill of the Company and are considered by the
Employee to be reasonable for such purpose. The Employee agrees that any breach
of this Agreement is likely to cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, the Employee agrees that
the Company, in addition to such other remedies which may be available, shall be
entitled to specific performance and other injunctive relief.
(g) This Agreement is governed by and will be construed as a sealed
instrument under and in accordance with the laws of the Commonwealth of
Massachusetts. Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be commenced only in a court of the Commonwealth of Massachusetts (or, if
appropriate, a federal court located within Massachusetts), and the Company and
the Employee each consents to the jurisdiction of such a court.
THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ
THIS AGREEMENT AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS
IN THIS AGREEMENT.
WITNESS: METASYN, INC.
Date:____________________ By:__________________________
--------------------------
(print name and title)
EMPLOYEE:
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Date:____________________ _____________________________
(signature)
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