MEGABIOS CORP.
Proprietary Information and
Inventions Agreement
As an employee of MEGABIOS Corp., its subsidiary or its affiliate
(together, the "Company"), and as a condition of my employment by the Company
and in consideration of my employment, or continued employment by the Company
and 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, data or other
proprietary information of the Company. By way of illustration and not
limitation, such proprietary information shall include tangible and intangible
information relating to antibodies and other biological materials, cell lines,
samples of assay components, media and/or cell lines and procedures and
formulations for producing any such assay components, media and/or cell lines,
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unpublished financial statements, licenses, prices and costs, suppliers and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any unpublished documents or any property belonging to my former or concurrent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 it 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 WORKERS RETAINED BY ME. I have attached
hereto as Exhibit A complete list of all inventions, original works of
authorship, developments, improvements, and trade secrets that I have, alone
or jointly with others, conceived, developed or reduced to practice or caused
to be 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
this Agreement. If disclosure of an item on 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
purpose. 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 hereby 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 may solely or jointly conceive or reduce
to practice, or caused to be conceived or reduced to practice, during the
period of my employment with the Company. I recognize that this 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:
(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.
(b) To the extent a provision in an employment agreement
purports to require 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 in the United States Copyright Act (17 U.S.C., Section 101).
(c) 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 United 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 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 me 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 any and all
claims of any nature whatsoever which I now or may hereafter have for
infringement of any proprietary rights assigned to the Company.
(e) 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 or 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 to 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 this Agreement relating to inventions that
qualify fully for protection under the provisions of Section 2870. I will
preserve the confidentiality of any invention that does not qualify fully 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 OR
SOLICITATION OF CUSTOMERS.
I agree that during the period of my employment by the Company I will
not, without the Company's express written consent, engage in 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 (i) induce any employee of the
Company to leave the employ of the Company or (ii) solicit the business of any
client or customer of the Company (other than on behalf 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 to
enter into, any agreement either written or oral in conflict herewith.
5. RETURN OF COMPANY DOCUMENTS.
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, other documents or property, together with all copies thereof (in
whatever medium recorded) belonging to the Company, it 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.
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 this 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 construed 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 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 this Agreement
are deemed unenforceable by law, then the remaining provisions will continue
in full force and effect.
(e) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be
for the benefit of the Company, its successors and its assigns.
(f) SURVIVAL. The provisions of this Agreement shall survive the
termination of 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, namely:
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: ________________________
Address:
ACCEPTED AND AGREED TO:
MEGABIOS Corp.
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
President and CEO
EXHIBIT A
MEGABIOS Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by MEGABIOS Corp. (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 a 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.
Dated: Very truly yours,
______________________________