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Confidentiality and Non Disclosure Agreement

Sample Non Disclosure Contract

Executive Employment, Non-competition and Non-disclosure Agreement | Document Parties: CANDELA CORP /DE/ | Candela Corporation You are currently viewing:
This NonDisclosure Agreement NDA involves

CANDELA CORP /DE/ | Candela Corporation

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Title: Executive Employment, Non-competition and Non-disclosure Agreement
Governing Law: Massachusetts     Date: 2/7/2008
Industry: Medical Equipment and Supplies     Sector: Healthcare

This Confidentiality and Non Disclosure Agreement sample is the actual legal document drafted by a top law firm for their client.
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Exhibit 10.14

 

Candela Corporation

 

Executive Employment, Non-competition and Non-disclosure Agreement

 

THIS EMPLOYMENT, NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “ Employment Agreement ”), effective as of [              ,2007] (the “ Effective Date ”) is made by and between Candela Corporation, a Delaware corporation (the “ Company ”), and [                        ] (the “ Executive ”).  The Company and the Executive are sometimes referred to, individually, as a “ Party ” or, collectively, as the “ Parties .”

 

BACKGROUND

 

The Executive is employed by the Company. The Company desires to maintain the employment of the Executive, and the Executive wishes to remain employed by the Company, upon the terms and conditions hereinafter set forth.

 

The Executive acknowledges that in the course of rendering services to the Company, he may have and will in the future become acquainted, with information about the business and financial affairs of the Company, and may have contributed or may in the future contribute to such information. The Executive recognizes that in order to protect the legitimate interests of the Company it is necessary for the Company to protect all such information by keeping it secret or confidential.

 

To evidence the understanding and agreement of the Company and the Executive with regard to various aspects of the Executive’s continuing employment and post-employment benefits, the Executive and the Company evidence their various agreements in this Employment Agreement.

 

IN CONSIDERATION of the premises, the mutual covenants and conditions set forth herein, for the Company continuing to employ the Executive, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.      EMPLOYMENT

 

1.1.     Employment at Will .  The Company hereby offers the Executive, and Executive hereby accepts, employment or continued employment as [ Position ] (the “ Position ”) of the Company upon the terms and conditions hereinafter set forth herein.  Employment by the Company is terminable at any time, for any reason, at the will of either the Executive or the Company.  Executive understands and acknowledges that he serves in such Position under the direct or indirect direction of the Chief Executive Officer and President (the “CEO”) of the Company, and his service may be terminated in the sole discretion of the CEO.  No statement of policy or procedure, whether written or oral, or set forth in any manual or guide, shall be deemed or construed to be a promise by the Company to continue employment of the Executive for any definite term, nor shall any such statement, policy or procedure require the Company to follow any special procedure, such as progressive discipline, before terminating employment.

 

1.2.     Exclusive Employment .  The Executive shall devote his full-time efforts during normal business hours, and as otherwise reasonably required, to fulfill Executive’s employment responsibilities, exclusively for the benefit of the Company as required hereunder, and shall perform no services for, and shall not become employed or engaged by, any other person, firm or entity while employed by the Company. The foregoing shall not prevent Executive from (i) serving on corporate, civic or charitable boards or committees; (ii) delivering lectures or fulfilling speaking engagements; and/or (iii) managing personal investments, so long as such activities do not interfere with the performance of Executive’s responsibilities under this Employment Agreement.

 

1.3.     Duties .  The Executive’s duties and responsibilities shall be as assigned by the CEO of the

 

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Company in his discretion but shall be consistent with Executive’s position.  At all times the CEO shall be subject to the direction and control of the Board of Directors of the Company, and the Executive shall be subject to the direction and control of the CEO.

 

2.      COMPENSATION

 

During the Term (as defined in Section 13.1 hereof), as compensation to the Executive for all of the services to be provided by the Executive to the Company, the Company agrees to pay, and the Executive agrees to and does accept, the payments set forth below in this Section 2 , unless otherwise agreed to by the Company and the Executive:

 

2.1.     Salary .  For so long as the Executive shall remain employed by the Company in the present Position during or after the Term, he shall be entitled to receive an annual salary of [     Insert Salary     ] ($                  ) (“ Salary ”).  Salary shall be paid, in arrears, on such legal basis as the Company shall generally follow from time to time, net of all taxes and other legally required or mutually agreed withholdings.  Salary may be modified from time to time by the CEO without formal amendment to this Employment Agreement.  In this regard, the Executive hereby authorizes the Company to withhold from salary payments any amounts owed to the Company by Executive hereunder or any other amounts as may be agreed to subsequently, including, but not limited to, overpayments and 401k contributions.

 

2.2.     Benefits .  The Executive shall be entitled to the benefits, such as health insurance, dental insurance, life insurance, long-term care, vacation, paid and unpaid leave as the Company may from time to time offer to employees generally as a standard benefit, and shall be entitled to such additional benefits as are offered to other senior officers by the Company at the same general level of responsibility and title as the Executive.  Benefits are subject to change at any time with such notice to employees as may be required by applicable employee benefit plans and laws governing them.  No special or different terms shall apply to Executive unless set forth in writing and signed by an authorized executive officer of the Company.

 

2.3.     Cash Bonuses .  The Executive may or may not receive a bonus in respect of any fiscal year depending on the parameters set by the CEO and approved by the Compensation Committee of the Board of Directors, based upon the performance, respectively, of the Executive and/or the Company, and the achievement of targets established in such bonus plan.  If the bonus plan for a particular year is premised solely upon the performance of the Company (rather than either specific metrics for an officer, or such officer-specific metrics and performance of the Company together), then the CEO may recommend, and in such case the Board of Directors or Compensation Committee thereof shall consider, approval of bonus arrangements outside of the bonus plan for an individual Executive based upon the Executive’s performance evaluation.  Nothing herein shall be deemed to compel the CEO or the Board of Directors or Compensation Committee thereof to establish a bonus pool for any particular period, nor shall the Executive be deemed to be entitled to any bonus irrespective of the achievement of various targets contained in a formal bonus program approved as aforesaid, provided , however , if the Board of Directors or Compensation Committee has approved your eligibility to participate in a bonus pool, your targets have been identified and approved, the time period for the achievement of your targets has been completed, and you have achieved one or more targets that were to give rise to specified amounts of bonus, then, in such case, you shall be entitled to receive your bonus in respect of that bonus period.

 

2.4.     Equity Awards .  Subject to the approval of the Board of Directors, or the Compensation Committee thereof, the Executive shall be entitled to receive options to purchase common stock of the Company, Stock Appreciation Rights, shares of restricted stock, or such other equity grants as may be determined by the Board of Directors, or Compensation Committee thereof, in its or their sole and complete discretion.

 

2.5.     Review of Salary and Bonus .  Salary and bonus potential shall be reviewed at least annually by the CEO.

 

2.6.     Supplemental Retirement Plan .  Executive will be eligible to participate in any supplemental retirement plan, if adopted by the Company upon the standard terms that may be offered to other executives of the same or similar level of the Company.

 

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2.7.     Company Car .  The Employee will be entitled to the use of a Company car, leased by the Company, in a price range determined by the CEO from time to time.  In the event the Employee’s employment is terminated at any time by the Company, for reasons other than for Cause, the Company will continue to make two full monthly payments on the lease.

 

2.8.     No Assurances .  The Executive acknowledges that there can be no assurance that the performance of the Company will be sufficient to achieve the conditions prerequisite to the payment of any of the bonus compensation provided for above, nor can there be any assurance at any time with respect to the value of any of the equity compensation provided for above, including without limitation, at the time of any exercise of stock options, Stock Appreciation Rights, or similar equity instruments.

 

3.      INTELLECTUAL PROPERTY PROTECTION

 

For purposes of this Employment Agreement, the following terms shall have the meanings assigned to them below:

 

3.1.     Definitions:

 

3.1.1.   Confidential Information:   The term “Confidential Information” shall mean any trade secret, proprietary or confidential information concerning the organization, personnel, business or finances of the Company, or of any third party which the Company is under an obligation to keep confidential, and that is maintained by the Company as confidential.  Such Confidential Information shall include, but is not limited to, trade secrets, proprietary or confidential information respecting existing  and future products and services, designs, methods, formulas, drafts of publications, research, know-how, techniques, systems, databases, processes, software programs or code, developments or experimental work, works of authorship, customer and prospect lists and/or customer information and related information, business plans, marketing plans, price lists, financial information, sales techniques, projects, the Company’s salary and/or pay rates, other Company personnel information, and all other plans and proposals.  Failure to mark any of the Confidential Information as confidential shall not affect its status as part of the Confidential Information covered under the terms of this Employment Agreement.

 

3.1.2.   Developments:   The term “Developments” shall mean any invention, modification, discovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data, technique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or registrable under copyright, trademark or similar statutes, including, but not limited to, the Semiconductor Chip Protection Act, or subject to analogous protection).

 

3.2.     Disclosure of Developments

 

3.2.1.   The Executive agrees that he will communicate in writing to the Board of Directors of the Company, or such officer or individual as the Board of Directors of the Company may from time to time designate, a full and complete disclosure of any and all Developments, research and other information, discoveries and improvements made, developed, conceived and/or reduced to practice by the Executive, alone, or jointly with others during a one (1) year period following the termination of my employment or other association with the Company, if such Developments, research, discoveries or improvements relate to the business of the Company.

 

3.2.2.   The business of the Company includes any technical or business interest that has been worked on by the Company in the past, or in which there is work in progress at the Company during the period of Executive’s employment with the Company.  The business interests of the Company include Company operations or activities in the planning stages.

 

3.2.3.   Executive’s Works .  The Executive hereby represents and warrants that the Executive has fully disclosed to the Company and attached hereto a description of any Developments which, prior to his employment with the Company, the

 

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Executive conceived of or developed, wholly or in part, but which has not been published or filed with the United States Patent or Copyright Offices, and any such Developments which, following his employment with the Company, he believes he retains some individual rights to same.

 

3.3.     Assignment of Developments

 

3.3.1.   If at any time or times during the Executive’s employment or other association with the Company, the Executive shall (either alone or with others) make, conceive, create, discover, invent or reduce to practice any Development that (i) relates to the business of the Company or any of the products or services being developed, manufactured or sold by the Company or which may be used in relation therewith; or (ii) results from tasks assigned to Executive by the Company; or (iii) results from the use of premises or personal property (whether tangible or intangible) owned, leased or contracted for by the Company, then all such Developments and the benefits thereof are and shall immediately become the sole and absolute property of the Company and its assigns, as works made for hire or otherwise.  The Executive shall promptly disclose to the Company (or any persons designated by it) each such Development.  The Executive hereby assigns to the Company all rights (including, but not limited to, rights to inventions, patentable subject matter, copyrights and trademarks) that the Executive may have or may acquire in the Developments and all benefits and/or rights resulting therefrom to the Company and its assigns without further compensation and shall communicate, without cost or delay, and without disclosing to others the same, all available information relating thereto (with all necessary plans and models) to the Company.

 

3.3.2.   The Executive will assist, upon request, in locating writings and other physical evidence of the making of his Developments and provide unrecorded information relating to them, and give testimony in any proceeding in which any of the Executive’s Developments or any application or patent directed thereto may be involved, provided that if Executive is no longer employed by the Company, reasonable compensation shall be paid for such services.  Notwithstanding the foregoing, no obligation is imposed on the Company to remunerate at a higher rate for the giving of testimony than the rate established by law for the compensation of witnesses in the court or tribunal where the testimony is taken.  To the extent feasible, the Company will use its best efforts to request such assistance at times and places as will least interfere with any other employment of the Executive.

 

3.3.3.   The Executive will promptly disclose to the Company all material which the Executive produces, composes or writes, individually or in collaboration with others, which arises out of work delegated to the Executive by the Company.  The Executive agrees that all such material constitutes a work for hire, and at the expense of the Company, the Executive hereby assigns to the Company all his interest in such copyrightable material and will sign all papers and do all other acts necessary to assist the Company to obtain copyrights on such material in any and all countries.

 

3.3.4.   Any Development relating to the Company’s business made by Executive within one (1) year following the termination of his employment (and which is required to be disclosed in accordance with Section 3.2 above) shall be presumed to be owned by the Company.

 

3.3.5.   The Executive understands and acknowledges that this Article 3 does not apply to an invention for which no equipment, supplies, facilities and/or trade secret information of the Company was used and which was developed entirely on the Executive’s own time, unless the invention relates directly to the business of the Company, or to the Company’s actual or demonstrably anticipated research or development, or the invention results from any work performed by the Executive for the Company.

 

3.4.     Non-Disclosure:

 

3.4.1.   The Executive recognizes that he has been exposed, prior to the date of this Agreement, and hereafter will be exposed to the Company’s Confidential Information.  The Executive agrees that he will not, at any time, whether during or after the termination of Executive’s employment, without first obtaining the written approval of the Board of Directors of the

 

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Company, or of such officer or individual as the Board of Directors of the Company may from time to time designate, divulge, reveal, publish, transfer or disclose to any person or entity outside of the Company, whether by private communications or by public address or publication, or otherwise, any Confidential Information, except to the extent that such disclosure is necessary to perform the Executive’s duties and fulfill his responsibilities as an employee of the Company.  All original and copies of any Confidential Information or other written materials relating to the business of the Company, however and whenever produced, shall be the sole property of the Company, not to be removed from the premises or custody of the Company unless necessary to fulfill the essential functions of the Executive’s job responsibilities.

 

3.4.2.   The Executive shall keep confidential all matters entrusted to the Executive and shall not use or attempt to use any Confidential Information, including confidential information related to third parties which the Company is obligated to maintain as confidential, except as may be required in the ordinary course of performing Executive’s duties as an employee of the Company, nor shall Executive use any Confidential Information in any manner which may injure or cause loss or may be calculated to injure or cause loss to the Company, whether directly or indirectly.

 

3.5.     Works and Interests of Others .  The Executive hereby represents and warrants that employment by the Company will not violate any agreement or promise of the Executive to any other person, and that the Executive will not use any property or Confidential Information of others in his work for the Company.

 

4.      RECORDS AND TANGIBLE MATERIALS

 

All notes, data, tapes, reference materials, sketches, drawings, memoranda and records in any way relating to any of the information referred to in Section 3 , and hereof (including, without limitation, any Confidential  Information) or otherwise prepared by Executive in the course of his employment, and all copies thereof, shall belong exclusively to the Company, and the Executive agrees to deliver to the Company on request all copies of such materials in his possession or then under his control. In the absence of such a request, Executive shall deliver such items to the Company upon the termination for any reason of the Executive’s employment with the Company.

 

5.      PROTECTION OF INFORMATION AND GOODWILL

 

5.1.     Nature of Business .  The Executive and the Company recognize that the Executive will acquire knowledge as a result of working for the Company, especially in his Position, and that such knowledge will include not only general knowledge about the Company’s industry, but specific knowledge of the Company’s business, secrets, products and customers, including Confidential Information.  The Executive and the Company recognize that upon termination of employment by the Company, the Executive could use such specific knowledge and information to the detriment of the Company by disclosing it to competitors, customers and prospects, and using it to obtain or win business. The Executive and the Company recognize that proof of such disclosure would be difficult, yet the harm caused thereby could be significant to the Company.  Therefore, the Executive and the Company are willing to agree that Confidential Information will be disclosed to the Executive, and, to protect the Company, its relationship with its customers, its competitive position, and its goodwill, the Executive will not engage in a competitive venture for a twelve (12) month period after employment by the Company, as specified below.

 

5.2.     The Executive agrees while in the employ of the Company and for one (1) year thereafter (the “Prohibition Period”), regardless of the reasons for the Executive’s termination, he will not directly or indirectly, do any of the following:

 

5.2.1.   Accept employment with a company that competes with the Company in the cosmetic and aesthetic/medical laser and light based system market, or engage in competitive activities related thereto, including any business engaged in the business of developing, producing, marketing or selling products or services of the type under development, developed, produced, marketed or sold by the Company while the Executive was employed by the Company.

 

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5.2.2.   Without limiting or narrowing the foregoing restriction, accept employment with and/or enter into a competitive relationship with the following list of competitors and/or any affiliated companies of such competitors also engaged in competition with the Company:  Aesthera Alderm, Alma Lasers, CoolTouch, Cutera, Cynosure, DDD, HOYA, ComBio, Laserscope, Lumenis, Palomar Medical Technologies, Radiancy, Reliant, Rhytec, Sciton, Syneron and Thermage.

 

5.2.3.   The Executive agrees that this Section 5 shall be treated as a separate and independent clause, and the unenforceability of any provision of it s









 
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