EXHIBIT 10.11
[US EMPLOYEES ONLY]
EMPLOYEE CONFIDENTIALITY,
INVENTION ASSIGNMENT, AND NON-COMPETITION AGREEMENT
I understand that, in connection with my employment with TyCom (US) Inc. or
any affiliate of TyCom (US) Inc. (individually and collectively, "TyCom"), I
will be receiving access to TyCom's confidential information, its customers and
suppliers. I also understand that TyCom will grant me stock options, under the
Tycom Ltd. Long Term Incentive Plan Non-Qualified Stock Option Agreement
("LTIP"). In return for TyCom's grant of such access and the LTIP, and other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged, I hereby agree to the following terms and conditions:
1. TyCom Confidential Information. "TyCom Confidential Information" is
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information developed, created, or discovered by TyCom that has value to TyCom's
business and is not known to TyCom's competitors or by the general public, or is
otherwise proprietary or confidential to TyCom. TyCom Confidential Information
may include, without limitation, data, know-how, manufacturing methods,
formulas, algorithms, computer programs, processes, designs, sketches,
photographs, plans, drawings, product concepts, improvements, specifications,
samples, reports, laboratory notebooks, vendor names, customer and prospective
customer names, distributor names, cost and pricing information, market
definitions, business plans, marketing plans, financial plans, customer and
prospective customer development information and strategies, sales methods,
inventions, trade secrets, ideas, research and development activities and
plans, and employee and/or personnel information (including compensation, skill,
and areas of expertise).
2. Obligation of Confidentiality. I agree, both during and after my
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employment with TyCom, to keep TyCom Confidential Information secret. I agree
not to disclose, record, or in any way make use of TyCom Confidential
Information for so long as such information remains non-public, except as
required in the performance of my duties and responsibilities as a TyCom
employee and under conditions that protect the TyCom Confidential Information.
I also agree not to remove or otherwise transmit TyCom Confidential Information
from TyCom's premises or possession without the explicit consent of an
authorized TyCom representative. Further, I agree to keep confidential third
party information (including, but not limited to, information received by TyCom
from customers, prospective customers, and suppliers) that is covered by a
confidentiality agreement between TyCom and the third party and to adhere to the
terms of the agreement between TyCom and the third party.
3. TyCom Property. All TyCom Confidential Information, as well as all
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patents, patent rights, copyrights, copyrightable works, trade secret rights,
trademark
rights, and other rights (including, without limitation, intellectual property
rights) anywhere in the world related to TyCom Confidential Information, is, and
shall be, the sole and exclusive property of TyCom. I hereby assign to TyCom any
and all rights, title, and interest I may have or acquire in such TyCom
Confidential Information and related rights. I agree to deliver all TyCom
Confidential Information, including all copies or computer records thereof,
along with any other TyCom property, to TyCom on or before my last day of
employment with TyCom and agree thereafter not to make any written record of
such Confidential Information nor to make use of such Confidential Information.
4. Loyalty. I agree to conduct myself at all times for the benefit of
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TyCom, to never knowingly take any action inconsistent with TyCom's best
interest, and to refrain from performing any work or services for any third
person or concern, including self-employment, with respect to any matter that
relates to or conflicts with TyCom business without the prior written consent of
an authorized TyCom representative.
5. Inventions. I agree that all inventions, including, but not limited
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to, improvements, and all know-how, processes, techniques, formulas, ideas,
circuits, designs, patents, trademarks, trade secrets, and copyrightable works
("Inventions") that result from work performed by me on behalf of TyCom or based
on or related to access to TyCom Confidential Information or property, shall be
the sole property of TyCom. I agree, both during and after my employment with
TyCom for a period of five (5) years, to disclose promptly and in writing, to
the individual designated by TyCom or to my immediate supervisor, all Inventions
that I, either solely or jointly with others, make, author, discover, develop,
conceive, and/or reduce to practice that are derived from TyCom Confidential
Information. I hereby assign and agree to assign to TyCom or its designee,
without further consideration, my entire right and interest in and to all
Inventions, including all rights to obtain, register, and enforce patents,
copyrights, mask work rights, and other intellectual property protection for
Inventions. I agree to execute all documents reasonably necessary to perfect
such intellectual property rights and the assignment of those rights to TyCom or
its designee. I further agree to assist TyCom (at TyCom's expense), both during
the term of my employment and for a period of twelve months thereafter, in
obtaining, protecting, and/or enforcing patents, copyrights, or other forms of
Inventions. The terms of this Agreement supplement rather than supersede the
terms of that certain Employee Agreement Regarding Intellectual Property (the
"EARIP"). However, in the case of conflict between the terms of the EARIP and
this Agreement, the terms of this Agreement shall govern.
6. Patent Applications. As a TyCom employee, after the filing of any
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original patent application covering any invention of which I am a named
inventor, I am eligible to participate in any applicable TyCom inventor award
program.
7. Excluded Inventions. Attached is a list of all inventions which have
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been conceived and/or reduced to practice by me prior to my employment by TyCom
and
which I desire to exclude from this Agreement. If no list is attached to this
Agreement, no inventions exist to be excluded at the time of the signing of this
Agreement. [For California employees, the text of California Labor Code Section
2870 is attached.]
8. Former Employer Information. I represent and warrant that my
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performance of all the terms of this Agreement and as an employee of TyCom does
not and will not breach any agreement to keep in confidence any confidential or
proprietary information, knowledge, or data acquired by me in confidence or in
trust prior to my employment by TyCom. I will not disclose to TyCom, nor induce
TyCom to use, any confidential or proprietary information, data, or material
belonging to any previous employers or others.
9. Non-Solicitation. I acknowledge that information, data, or material
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concerning TyCom's customers, affiliates, and employees is highly confidential.
I agree, both during my employment and for a period of twelve months thereafter,
not to directly or indirectly solicit, recruit, hire, or encourage any employees
or consultants to leave the employ of TyCom, nor to directly or indirectly
encourage any customers, suppliers, or affiliates to refrain from or to stop
doing business with TyCom, either on my own behalf or on behalf of any other
person or entity.
10. No Contract of Employment. I agree that this Agreement is not a
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contract of employment, and no rights to employment, continued employment,
advancement, or reassignment are hereby created. I ALSO UNDERSTAND THAT MY
EMPLOYMENT WITH TYCOM IS AT-WILL, WHICH MEANS THAT EITHER I OR TYCOM MAY
TERMINATE THE RELATIONSHIP WITH OR WITHOUT CAUSE AT ANY TIME WITHOUT NOTICE AND
NOTHING IN THIS AGREEMENT ALTERS THIS RELATIONSHIP AT-WILL.
11. Governing Law. This Agreement shall be governed by and construed
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under the laws of the state in which I work or was last employed by TyCom.
12. Severable Provisions. In the event one or more of the provisions, or
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portions thereof, contained in this Agreement shall, for any reason be invalid,
illegal, or unenforceable, such circumstances shall not affect any other
provision hereof and this Agreement shall continue in full force and effect and
be construed as if such provision, to the extent that it is invalid, illegal or
unenforceable, had never been contained herein.
13. Injunctive Relief. Given the nature of the TyCom Confidential
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Information and the parties' current discussions, I acknowledge that TyCom may
be irreparably damaged by any unauthorized disclosure of any TyCom Confidential
Information. Without prejudice to the rights and remedies otherwise available
to TyCom, TyCom shall be entitled to seek equitable relief, including an
injunction or specific performance, in the event of any breach of the provisions
of this Agreement by me.
14. Non-Competition. I agree, subject to the conditions hereinafter
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stated, that I will not, within one year after leaving TyCom's employ, engage or
enter into employment by, or into self-employment or gainful occupation as, a
Competing Business, or act directly or indirectly as an advisor, consultant,
agent, or representative for a Competing Business. As used herein, "Competing
Business" means a business (1) which is engaged in the manufacture, sale or
other disposition of a product or service, whether existing or under
development, of TyCom; (2) which has under development a product or service that
is in direct competition with a product or service, whether existing or under
development, of TyCom, or (3) which involves activities that would likely result
in my eventual disclosure of TyCom Confidential Information if I were employed
by said business.
15. Rescision. I agree that with respect to my options under the LTIP, any
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failure to comply with the provisions of this Agreement (i) at any time shall
result in the immediate forfeiture of all outstanding options under LTIP held by
me and (ii) prior to, or during the six months after, any exercise, payment or
delivery pursuant to such option shall cause such exercise, payment or delivery
to be rescinded. TyCom shall notify me in writing of any such rescission within
two years after such exercise, payment or delivery, provided, however, that
TyCom may, in its discretion, in any individual case, provide for waiver in
whole or in part of compliance with the provisions of this paragraph 15. Within
ten days after receiving such a notice from TyCom, I agree to pay to TyCom the
amount of any gain realized or payment received as a result of the rescinded
exercise, payment or delivery pursuant to the option. Such payment shall be
made either in cash or by returning to TyCom the number of shares of TyCom stock
that I received in connection with the rescinded exercise, payment or delivery.
I acknowledge that TyCom regards the safeguarding of TyCom Confidential
Information, the confidential information of third parties that TyCom receives
in confidence, and TyCom Inventions to be vital to TyCom's interests. I further
acknowledge that TyCom is relying on me to honor this duty to protect such TyCom
Confidential Information and Inventions in employing me, and is entrusting me
with access to TyCom Confidential Information, the confidential information of
third parties, and TyCom business opportunities. Accordingly, by signing this
Agreement I express my intent to be legally bound by the terms hereof.
I have not entered into, and I agree I will not enter into, any agreement,
either written or oral, in conflict with this Agreement or in conflict with my
employment with TyCom.
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Employee's Name (Print) Employee Number
_____________________________________ _______________________________
Employee's Signature Date
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TyCom Authorized Agent Date
California Labor Code
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2870. Employment Agreements; Assignment of Rights.
(a) Any provision in an employment agreement which provides that an employee
shall 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:
(1) 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; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports 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.