Exhibit 10.4
SECURE COMPUTING
CORPORATION
MICHAEL J.
GALLAGHER
EMPLOYMENT, CONFIDENTIAL
INFORMATION,
INVENTION ASSIGNMENT, AND
ARBITRATION AGREEMENT
As a condition of my employment with
SECURE COMPUTING CORPORATION, its subsidiaries, affiliates,
successors or assigns (together the “Company”), and in
consideration of my employment with the Company and my receipt of
the compensation now and hereafter paid to me by Company, I agree
to the following:
1.
At-Will Employment . I UNDERSTAND AND ACKNOWLEDGE
THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION
AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND
THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT
VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE CHIEF EXECUTIVE
OFFICER OF THE COMPANY. I ACKNOWLEDGE THAT THIS EMPLOYMENT
RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD
CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY
OR MYSELF, WITH OR WITHOUT NOTICE.
2.
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 or disclose, except for the benefit of
the Company, to any person, firm or corporation without written
authorization of the Chief Executive Officer of the Company, any
Confidential Information of the Company. I understand that
“Confidential Information” means any Company
proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products,
services, customer lists and customers (including, but not limited
to, customers of the Company on whom I called or with whom I became
acquainted during the term of my employment), markets, software,
developments, inventions, processes, formulas, technology, designs,
drawings, engineering data, hardware configuration information,
marketing, financial or other business information disclosed to me
by the Company either directly or indirectly in writing, orally or
by drawings or observation of parts or equipment. I further
understand that Confidential Information does not include any of
the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others
who were under confidentiality obligations as to the item or items
involved or improvements or new versions thereof.
(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 any former
or concurrent employer or other person or entity and that I will
not bring onto the premises of the Company any unpublished document
or proprietary information belonging to any such employer, person
or entity unless consented to in writing by such employer, person
or entity.
(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 to use
it only for certain limited purposes. I agree to hold all such
confidential or proprietary information in the strictest confidence
and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out my work for the Company
consistent with the Company’s agreement with such third
party.
3.
Inventions .
(a)
Inventions Retained and Licensed . I have attached
hereto, as Exhibit A , a list describing all inventions,
original works of authorship, developments, improvements, and trade
secrets which were made by me prior to my employment with the
Company (collectively referred to as “Prior
Inventions”), which belong to me, which relate to the
Company’s proposed business, products or research and
development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such
Prior Inventions. If in the course of my employment with the
Company, I incorporate into a Company product, process or machine a
Prior Invention owned by me or in which I have an interest, the
Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or
in connection with such product, process or machine.
(b)
Assignment of Inventions . I agree that I will
promptly make full written disclosure to the Company, will hold in
trust for the sole right and benefit of the Company, and hereby
assign to the Company, or its designee, all my right, title, and
itnerest in
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and to any and all inventions, original works of
authorship, developments, concepts, improvements, designs,
discoveries, ideas, trademarks or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which I
may solely or jointly conceive or develop or reduce to practice, or
cause to be conceived or developed or reduced to practice, during
the period of time I am in the employ of the Company (collectively
referred to as “Inventions”), except as provided in
Section 3(f) below. I further acknowledge that all original works
of authorship which are made by me (solely or jointly with others)
within the scope of and during the period of my employment with the
Company and which are protectible by copyright are “works
made for hire,” as that term is defined in the United States
Copyright Act. I understand and agree that the decision whether or
not to commercialize or market any invention developed by me solely
or jointly with others is within the Company’s sole
discretion and for the Company’s sole benefit and that no
royalty will be due to me as a result of the Company’s
efforts to commercialize or market any such invention.
(c)
Inventions 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 whenever such full title
is required to be in the United States by a contract between the
Company and the United States or any of its agencies.
(d)
Maintenance
of Records . I agree to keep and maintain adequate and
current written records of all Inventions made by me (solely or
jointly with others) during the term of my employment with the
Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the
Company. The records will be available to and remain the sole
property of the Company at all times.
(e)
Patent and
Copyright Registrations . I agree to assist the Company, or
its designee, at the Company’s expense, in every proper way
to secure the Company’s rights in the Inventions and any
copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries,
including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to
apply for and obtain such rights and in order to assign and convey
to the Company, its successors, assigns, and nominees the sole and
exclusive rights, title and interest in and to such Inventions, and
any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. I further agree that my
obligation to execute or cause to be executed, when it is in my
power to do so, any such instrument or papers shall continue after
the termination of this Agreement. If the Company is unable because
of my mental or physical incapacity or for any other reason to
secure my signature to apply for or to pursue any application for
any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the
Company as above, then 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 and stead to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters
patent or c
