Employee Confidentiality Agreement - Cubist Pharmaceuticals Inc.
CUBIST PHARMACEUTICALS, INC.
EMPLOYEE CONFIDENTIALITY AGREEMENT
In consideration of my employment or continued employment by Cubist
Pharmaceuticals, Inc. (together with any subsidiary of Cubist Pharmaceuticals,
Inc., the "Company"), and the compensation now and hereafter paid to me, I
hereby agree as follows:
1. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE.
At all times during the term of my employment and thereafter, I will hold in
strictest confidence and will not disclose, use, lecture upon or publish any of
the Company's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with my work for
the Company, or unless an executive officer of the Company expressly authorizes
such in writing. The term "Proprietary Information" shall mean trade secrets,
confidential knowledge, data or any other information of the Company. By way of
illustration but not limitation, "Proprietary Information" includes (a)
inventions, mask works, trade secrets, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter collectively
referred to as "Inventions"); and (b) information regarding plans for research,
development, new products, regulatory matters, 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plans, budgets and unpublished financial statements, licenses, prices and costs,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.
2. THIRD PARTY INFORMATION.
I understand, in addition, that the Company has received, and in the future will
receive, from third parties confidential or proprietary information ("Third
Party Information") subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During the term of my employment and thereafter, I will hold Third
Party Information in the strictest confidence and will not disclose to anyone
(except in connection with my work for the Company), unless expressly authorized
by an executive officer of the Company in writing.
3. ASSIGNMENT OF INVENTIONS.
3.1 ASSIGNMENT.
I hereby assign to the Company all my right, title and interest in and
to any and all Inventions (and all patent rights, copyrights, mask
work rights, trademarks, trade secret rights, all other rights
throughout the world in connection therewith, and the goodwill
associate with all of the foregoing (collectively, "Proprietary
Rights"),
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whether or not patentable or registrable under patent, copyright,
trademark or similar statutes, made or conceived or reduced to
practice or learned by me, either alone or jointly with others, during
the period of my employment with the Company. Inventions assigned to,
or as directed by, the Company under this Paragraph 3 are hereinafter
referred to as "Company Inventions." I agree, upon request, to
execute, verify and deliver assignments of the Proprietary Rights to
the Company or its designee and I hereby appoint the Company my
attorney-in-fact with respect to the Proprietary Rights for the
purpose of effecting any or all of the Company's rights to and use of
the Proprietary Rights.
3.2 GOVERNMENT.
I also agree to assign to, or as directed by the Company, all my
right, title and interest in and to any and all Inventions, full title
to which is required to be assigned to the United States of America by
a contract between the Company and United States of America or any of
its agencies.
3.3 WORKS FOR HIRE.
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).
4. ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in every
proper way to obtain and enforce United States and foreign Proprietary Rights
relating to Inventions in any and all countries. My obligation to assist the
Company with respect to Proprietary Rights relating to such Inventions 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.
5. WAIVER OF CLAIMS
I hereby waive any and all claims, of any nature whatsoever, which I now or may
hereafter have for infringement of any Proprietary Rights assigned by me to the
Company pursuant to this pursuant to this Employee Confidentiality Agreement.
(the "Agreement").
6. OBLIGATION TO KEEP COMPANY INFORMED.
During the period of my employment, I will promptly disclose all Inventions to
the Company fully and in writing and will hold such Inventions in trust for the
sole right and benefit of the Company. In addition, after termination of my
employment, I will promptly disclose all patent applications filed by me within
a year after termination of my employment with the Company.
7. PRIOR INVENTIONS.
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Inventions, if any, patented or unpatented, which I made prior to the
commencement of my employment with the Company are excluded from the scope of
this Agreement. To preclude any possible uncertainty, I have set forth on
EXHIBIT A attached hereto a complete list of all Inventions (i) that I have,
alone or jointly with others, conceived, developed or reduced to practice prior
to the commencement of my employment with the Company, (ii) that I consider to
be my property or the property of third parties and (iii) that I wish to have
excluded from the scope of this Agreement. If disclosure of any such Invention
on EXHIBIT A would potentially cause me to violate a prior confidentiality
agreement, I understand that I am obligated only to describe such Invention in
general terms in order to avoid such violation.
8. COVENANT NOT TO SOLICIT OR COMPETE.
8.1 RESTRICTIVE COVENANTS.
(a) I agree that during the period of my employment by the Company I
will not, without the Company's prior written consent, engage in
any employment or business activity other than for the Company. I
further agree that during the term of my employment with the
Company and for a period of one (1) year thereafter, I also shall
not solicit, or arrange to have any other person or entity
solicit, any person or entity engaged by the Company as an
employee, customer, supplier, or consultant or advisor to the
Company to terminate such party's relationship with the Company.
The time periods provided for in this Section 8.1(a) shall be
extended for a period of time equal to any period of time in which
I shall be in violation of any provision of this Section 8.
(b) In view of the unique nature of the business of the Company and
the need of the Company to maintain its competitive advantage in
the industry, I agree and acknowledge that, in the event that I
breach any other covenant or obligation set forth herein, a court
of competent jurisdiction shall enjoin me for a period of one (1)
year following the issuance of such injunctive order from,
directly or indirectly, within the United States of America or its
Territories or Possessions, or within any other country, (i)
engaging in, (ii) owning an interest in, (iii) being employed by,
or consulting for, or acting as an advisor to, any person or
entity which engages in, or (iv) otherwise participating in any
way in, any activity which competes with the Business (as defined
in Section 8.2 below) of the Company..
8.2 DEFINITION OF BUSINESS; COVENANT TO AGREE.
For purposes of Section 8.1 above, the term "Business" shall mean: (i) the
research, development, manufacture, distribution, license and
commercialization of antiinfective drugs.
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9. NO IMPROPER USE OF MATERIALS.
During my employment by the Company, I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person.
10. NO CONFLICTING OBLIGATION; NO MISREPRESENTATION
I represent that my performance of all the terms of this Agreement and my
performance of my duties as an employee of the Company do 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. I further agree that I will not misrepresent in any manner,
my title or the nature of my current role and responsibilities at Cubist to any
potential or future employer.
11. RETURN OF COMPANY DOCUMENTS.
When I leave the employ of the Company, I will deliver to the Company any and
all drawings, notes, memoranda, specifications, devices, formulas, molecules,
cells, storage media, including software, documents and computer printouts,
together with all copies thereof, and any other material containing or
disclosing any Inventions, Third Party Information or Proprietary Information of
the Company. 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.
12. LEGAL AND EQUITABLE REMEDIES.
Because my services are personal and unique and because I may have access to and
may 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, and I waive the claim or defense that the Company
has an adequate remedy at law. I shall not, in any action or proceeding to
enforce any of the provisions of this Agreement, assert the claim or defense
that such an adequate remedy at law exists.
13. NOTICES.
Any notices required or permitted hereunder shall be given to me at the address
specified below or at such other address as I shall specify in writing. Such
notice shall be deemed given upon personal delivery to the appropriate address
or if sent by certified or registered mail, three days after the date of
mailing.
14. GENERAL PROVISIONS.
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14.1 GOVERNING LAW.
This Agreement is executed under seal and will be governed by and construed
according to the laws of the Commonwealth of Massachusetts.
14.2 ENTIRE AGREEMENT.
This agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification or amendment of this Agreement, nor any
waiver of any rights under this Agreement, will be effective unless in writing
signed by the party to be charged. Any subsequent change or changes in my
duties, salary or compensation will not affect the validity or scope of this
Agreement. As used in this Agreement, the period of my employment includes any
time during which I may be retained by the Company as a consultant.
14.3 SEVERABILITY.
If one or more of the provisions in this Agreement are deemed unenforceable by
the law, then the remaining provisions will continue in full force and effect.
14.4 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. I may not assign any of my rights, or delegate any
of my obligations, under this Agreement.
14.5 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.
14.6 EMPLOYMENT.
I agree and understand that nothing in this Agreement shall confer on me any
right with respect to continuation of my employment with 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.
14.7 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.
14.8 JURISDICTION AND VENUE; WAIVER OF JURY TRIAL.
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In case of any dispute hereunder, the parties will submit to the exclusive
jurisdiction and venue of any court of competent jurisdiction sitting in
Middlesex County, Massachusetts, and will comply with all requirements necessary
to give such court jurisdiction over the parties and the controversy. EACH PARTY
HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER PUNITIVE DAMAGES
WITH RESPECT TO THIS AGREEMENT.
14.9 DISCLOSURE.
I agree that the Company may, provide a copy of this Agreement to any business
or enterprise (i) which I may directly or indirectly own, manage, operate,
finance, join, control or participate in the ownership, management, operation,
financing, or control of, or (ii) with which I may be connected with as an
officer, director, employee, partner, principal, agent, representative,
consultant or otherwise, or in connection with which I may use or permit my name
to be used. I agree that I will provide the names and addresses of any such
persons or entities as the Company may from time to time reasonably request.
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This Agreement shall be effective as of the first day of my employment with the
Company.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE DURING
MY EMPLOYMENT, AND RESTRICTS MY RIGHTS TO DISCLOSE OR USE THE COMPANY'S
CONFIDENTIAL INFORMATION OR TO COMPETE WITH THE COMPANY 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.
EMPLOYEE
Signature:
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Name:
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Dated:
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ACCEPTED AND AGREED TO:
Cubist Pharmaceuticals, Inc.
By:
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Name:
Title:
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EXHIBIT A