Exhibit 10.10
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
In consideration of my present and future consulting relationship with MTI
Technology Corporation (together with its subsidiaries, or any companies owned
or controlled by MTI Technology Corporation, the "Company"), I agree to the
following:
1. Proprietary Information
1.1 I understand and acknowledge that my services as a consultant to the
Company will involve access to and creation of confidential, proprietary, and
trade secret information of the Company and its affiliates, customers, clients,
consultants, vendors and business associates (collectively, "Proprietary
Information"). I further understand and acknowledge that the Company and its
affiliates, customers, clients, consultants, vendors and business associates
have developed, compiled, and otherwise obtained this Proprietary Information
often at great expense, and that such information has great value to their
respective businesses. I agree to hold in strict confidence and in trust for the
sole benefit of the Company and its clients all Proprietary Information. I
further agree that I shall treat all Proprietary Information as private,
privileged, and confidential, and that I shall not use, disclose, or release any
Proprietary Information in any way to any person, firm, or institution at any
time, even after termination of my consulting relationship, except to the extent
necessary to perform my services as a consultant of the Company. I further
understand and agree that the publication of Proprietary Information through
literature or speeches must be approved in advance in writing by a duly
authorized officer of the Company.
1.2. I understand and acknowledge that, for purposes of this Agreement,
"Proprietary Information" means all confidential, proprietary, or trade secret
information and ideas in whatever form, tangible or intangible, whether
disclosed to or learned or developed by me, pertaining in any manner to the
business of the Company or to the Company's affiliates, consultants, clients, or
business associates, unless: (i) the information is, or becomes, publicly known
through lawful means; (ii) the information was rightfully in my possession or
part of my general skill or knowledge prior to my consulting relationship with
the Company; or (iii) the information is disclosed to me without confidential or
proprietary restriction by a third party who rightfully possesses the
information (without confidential or proprietary restriction) and did not learn
of it, directly or indirectly, from the Company.
1.3. Without limiting the generality of the foregoing, I understand and
acknowledge that "Proprietary Information" includes all: (i) inventions,
computer codes, computer programs, formulas, schematics, techniques, algorithms,
employee suggestions, development tools and processes, computer printouts,
design drawings and manuals, and improvements or modifications to the foregoing;
(ii) information about costs, profits, markets, and sales; (iii) plans for
future development and new product concepts; (iv) all documents, books, papers,
drawings, models, sketches, and other data of any kind and description,
including electronic data recorded or retrieved by any means, that have been or
will be given to me by the Company (or any present or future affiliates,
customers, clients, consultants, vendors and business associates of the
Company), as well as written or verbal instructions or comments; and (v)
information regarding the compensation and skills of employees of the Company.
1.4 I agree that I will maintain under my control only such Proprietary
Information that I have a current "need to know," and that I will return to the
appropriate person or location, or otherwise dispose of, Proprietary Information
once my need to know no longer exists. I agree that I will not make copies of
information unless I have a legitimate need for such copies in connection with
my work.
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2. Third-Party Information
I recognize that the Company has received and in the future will receive
from third parties their confidential and/or proprietary information subject to
a duty on the Company's part to maintain the confidentiality of such information
and to use it only for limited purposes. I agree that I owe the Company and such
third parties, during the term of my consulting relationship 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 as
necessary in carrying out my work for the Company consistent with the Company's
agreement with such third party) or to use it for the benefit of anyone other
than for the Company or such third party (consistent with the Company's
agreement with such third party) without the express written authorization of a
duly authorized officer of the Company.
3. Assignment Of Inventions
3.1 I hereby assign to the Company, without additional consideration,
all right, title and interest (throughout the United States and in all foreign
countries) in all ideas, processes, inventions, technology, writings, computer
programs, designs, formulas, discoveries, patents, copyrights, trademarks,
service marks, works of authorship, any claims or rights, and any improvements
or modifications to the foregoing (collectively, "Inventions"), whether or not
subject to patent or copyright protection, that have been or will be conceived,
developed, or reduced to practice by me alone or with others (i) during the term
of my consulting relationship, whether or not conceived or developed during
regular business hours, and whether or not conceived before, on, or after the
date hereof; or (ii) if based on Proprietary Information, after termination of
my consulting relationship. Such Inventions shall be the sole property of the
Company and, to the maximum extent permitted by applicable law, shall be deemed
works made for hire.
3.2 I understand that the assignment by me to the Company does not apply
to Inventions that qualify fully under Section 2870(a) of the California Labor
Code, which is set forth on Schedule "A." I further understand that nothing in
this Agreement is intended to expand the scope of protection provided by
Sections 2870 through 2872 of the California Labor Code. To avoid future
confusion, I have listed on Schedule "A" a description of all Inventions, if
any, developed or conceived by me in which I claim any ownership or other right.
It is understood and agreed that the attached list is a complete listing of all
Inventions that are to be excluded from this Agreement as having been made prior
to the commencement of my consulting relationship with the Company. I understand
that, by not listing an Invention, I am acknowledging that the Invention was not
developed or conceived before my consulting relationship with the Company
commenced.
4. Works For Hire
I acknowledge that all original works of authorship that are made by me
(solely or jointly with others) within the scope of my consulting relationship
and that are protectable by copyright are "works made for hire," pursuant to
United States Copyright Act (17 U.S.C. Section 101 et seq.)
5. Disclosures
I agree to maintain adequate and current written records on the
development of all Inventions and to disclose promptly to the Company all
Inventions and relevant records, which will remain the sole property of the
Company. I further agree to promptly disclose to the Company all information and
records relating to any Inventions developed, conceived, reduced to practice, or
authored by me (alone or with others) during the term of my consulting
relationship and during the one-year period after my consulting relationship
with the Company terminates. Any disclosures made by me after my consulting
relationship terminates will be received by the Company in confidence for the
purpose of determining if the Inventions have
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been based on Proprietary Information, and are subject to the terms of this
Agreement.
6. Information On Company Premises
I understand and agree that all information generated, received, or
maintained by or for me on the premises or equipment of the Company (including,
without limitation, computer systems and electronic-mail or voicemail systems)
is the property of the Company, and I hereby waive any property or privacy
rights that I may have with respect to such information.
7. Interference With Company Business
7.1 I agree that, during my consulting relationship with the Company, I
will not engage in any business activity that is or may be competitive with, or
that would otherwise conflict with, my consulting relationship with the Company.
7.2 I understand that the Company's business relationships with its
affiliates, clients, customers, employees, consultants, business associates, and
other persons are valuable business assets, and that I would not have access to
these contacts but for my consulting relationship with the Company. To avoid
interfering with these business relationships, and to forestall any use or
disclosure of Proprietary Information in breach of this Agreement, I agree that
I will not during or after my consulting relationship with the Company, for
myself or for any third party, directly or indirectly: (i) engage in any
business activity that would require the actual or inevitable use or disclosure
of Proprietary Information; (ii) employ, solicit for employment, or recommend
for employment any person employed by the Company; or (iii) divert or attempt to
divert from the Company any business of any kind in which it is engaged
including, but not limited to, the solicitation or interference with any of its
suppliers or customers.
8. Return Of Company Property
On termination of my consulting relationships with the Company, or at any
time the Company requests, I shall deliver immediately to the Company all
property belonging to it and all material containing Proprietary Information,
including copies, in my possession or control, whether prepared by me or others.
9. Remedies
I recognize that nothing in this Agreement is intended to limit any remedy
the Company may have under the California Uniform Trade Secrets Act or any other
law, and that I could face possible criminal and civil actions, including
imprisonment and monetary liability, if I misappropriate the Company's or its
clients' trade secrets. In addition, I recognize that my violation of this
Agreement could cause the Company irreparable harm and significant injury, the
amount of which may be extremely difficult to estimate, thus, making any remedy
at law or in damages inadequate. Therefore, I agree that, in the event of a
breach or threatened breach that involves Proprietary Information of the Company
or its clients, the Company shall have the right to enforce the provisions of
this Agreement by injunction, specific performance, or other legal or equitable
relief. This right shall be in addition to, and without prejudice to, any other
remedies available to the Company in law or equity.
10. Notification To Subsequent Employer
I agree that, after the termination of my consulting relationship with the
Company, I will not enter into any agreement that conflicts with my obligations
under this Proprietary Information Agreement and will inform any subsequent
employers of my obligations under this Proprietary Information Agreement. I
further agree that, after the termination of my consulting relationship with the
Company, I will, if requested by the Company, sign and deliver to any necessary
proof that I am in compliance with my obligations under this Proprietary
Information Agreement. Moreover, I hereby consent to the notification of any
subsequent employer or
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entity to which I provide consulting services of my obligations under this
Agreement.
11. Successors And Assigns
I understand and agree that the Company may assign to another person or
entity any of its rights under this Agreement. I further understand and agree
that this Agreement shall be binding upon me and my heirs, executors,
administrators, and successors, and shall inure to the benefit of the Company's
successors and assigns.
12. Survival
I understand that my obligations contained in this Agreement will survive
the termination of my employment with the Company.
13. Severability
If any provision of this Agreement is determined to be invalid,
unenforceable or illegal, the validity or enforceability of the other provisions
shall not be affected. In addition, if any one or more provisions contained in
this Agreement shall be held to be excessively broad as to duration,
geographical scope, activity, or subject, it shall be construed by limiting or
reducing it, so as to be enforceable with applicable law.
14. Choice Of Law
I understand that the interpretation, validity, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of California, without regard to or application of
any of California's conflict of law rules.
15. Waiver
No waiver by the Company of any breach of this Agreement shall be a waiver
of any preceding 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.
16. Entire Agreement
The terms of this Agreement are the final expression of my agreement with
respect to the subject matter hereof and may not be contradicted by evidence of
any prior or contemporaneous agreement. This Agreement shall constitute the
complete and exclusive statement of its terms and no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other legal
proceeding involving this Agreement. No modification or amendment of this
Agreement shall be binding unless executed in writing by me and a duly
authorized officer of the Company.
* * * *
I HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND ITS TERMS. I HAVE
COMPLETED SCHEDULE "A" BEFORE SIGNING THIS AGREEMENT, LISTING ALL INVENTIONS AND
RIGHTS THAT I WISH TO EXCLUDE FROM OPERATION OF THIS AGREEMENT.
Signature:______________________________
Name:___________________________________
Date:___________________________________
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SCHEDULE "A"
I understand that the assignment by me to the Company does not apply to
Inventions that qualify fully under Section 2870(a) of the California Labor
Code, which is set forth below. I further understand that nothing in this
Agreement is intended to expand the scope of protection provided by Sections
2870 through 2872 of the California Labor Code. To avoid future confusion, I
have listed below a description of all Inventions (as defined in the Proprietary
Information Agreement) and other intellectual property, if any, developed or
conceived by me in which I claim any ownership or other right. It is understood
and agreed that the list is a complete listing of Inventions and other
intellectual property that are to be excluded from assignment to the Company
under the Proprietary Information Agreement as having been made prior to my
employment with the company.
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California Labor Code Section 2870(a)
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:
(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.
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1. Except as set forth below, there are no Inventions that I wish to
exclude from the operation of this Agreement (attach additional sheets if
necessary):
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2. Due to prior confidentiality agreement(s), I cannot complete the
above disclosure with respect to Inventions generally listed below, the
proprietary rights and duty of confidentiality with respect to which I owe the
following parties (attach additional sheets if necessary):
Inventions or Improvements Parties Relationship
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