Exhibit 10.28
Terayon Communication Systems, Inc.
PROPRIETARY INFORMATION AND INVENTIONS
AGREEMENT
As
an employee of Terayon Communication Systems, Inc., a Delaware
corporation, and/or any of its subsidiaries or affiliates
(together, the “Company”), and as a condition of my
employment by the Company and in consideration of the compensation
now and hereafter paid to me, I agree to the following:
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1.
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Maintaining Confidential
Information.
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(a)
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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 or data, proprietary
materials, or other proprietary information of the Company. By way
of illustration and not limitation, such proprietary materials and
information shall include proprietary and/or confidential materials
and information relating to software, test data, protocols, assay
components, procedures and 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marketing and selling, business plans, budgets and unpublished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.
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(b)
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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premises of the Company any unpublished documents or property
belonging to my former or concurrent employers or companies unless
consented to in writing by said employers or companies.
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(c)
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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 in 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.)
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2.
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Assignment of Inventions and
Original Works.
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(a)
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Inventions and Original Works
Retained by Me. I have attached hereto as
Exhibit A a complete list of all inventions, original works or
authorship, developments, improvements, and trade secrets, relating
in any way to the Company’s present or anticipated business,
that I have, alone or jointly with others, 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
the Agreement. If disclosure of an item in 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 purposes. If
no list is attached, I represent that there are no such
items.
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(b)
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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
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Company, and will 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 solely or jointly conceive or
reduced to practice, during the period of my employment with the
Company. I recognize that the 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:
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(1)
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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:
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(a)
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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;
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(b)
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Result from any work performed by
the employee for the employer.
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(2)
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To
the extent a provision in an employment agreement proports 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.
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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 by the United States
Copyright Act (17 U.S.C., Section 101).
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(a)
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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 Untied States by a contract between the
Company and the United States or any of its agencies.
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(d)
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Obtaining Letters Patent, Copyright
Registrations and Other Protections. I will assist the Company in every
proper way to obtain and enforce the 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
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