Exhibit 10.4
NON-COMPETITION,
NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION,
NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter
“Agreement”), dated and effective as of the date that
you,
, sign this Agreement, describes various conditions of your
employment, including the obligations owed to Tyco Healthcare Group
LP d/b/a Covidien and any of its parents, subsidiaries, successors,
assigns or affiliated entities (hereinafter “Company”)
by you regarding competition with Company, the hiring of
Company’s employees, solicitation of Company’s
customers, and the maintenance of confidential information
important to Company’s business.
CONSIDERATION
You acknowledge that the Company is
engaged in a highly competitive industry. You further acknowledge
that, as part of your employment with the Company, you will have
access to and/or gain knowledge of trade secrets and
“Confidential Information” (as defined below) that is
vital to the interests and success of the Company.
In exchange for this Agreement, the
Company awarded to you [number] non-qualified stock options,
[number] restricted stock units and [number] performance share
units on December 1, 2008 (collectively, “FY 2009 Equity
Grant”) as consideration for your promises and contractual
obligations as specified in this Agreement. You acknowledge that
this FY 2009 Equity Grant constitutes adequate consideration even
before it vests and regardless of the monetary value that results.
As further consideration for this Agreement, and contemporaneous
with its signing, the Company agrees to provide you with knowledge
of its trade secrets and Confidential Information, with
specialized, business-related education and training regarding the
Company’s methodologies and business strategies, which will
enable you to perform your job with the Company, with supplies and
materials necessary for you to perform your job with the Company,
and with goodwill in customer and other business relationships. You
acknowledge that all of these items are necessary and desirable for
your personal success as an employee of the Company.
You acknowledge that you are not
previously or otherwise already entitled to the consideration
described herein in exchange for the agreements specified herein.
In exchange for this consideration and as a condition of your
employment or continued employment if you are an existing employee,
you agree to the following.
I. CONFIDENTIAL
INFORMATION
A. Nondisclosure of Confidential
Information . You agree that during your employment with the
Company and at any time thereafter, you will not disclose to any
other person or organization, or make or permit any use of, any of
the Company’s Confidential Information. Additionally, the
Company specifically reserves its rights under any applicable
common or statutory law regarding trade secrets, and prohibits
disclosure and/or use of information which meets the definition of
trade secrets under these common or statutory laws.
B. “ Confidential
Information” Defined . “Confidential Information
” means information in whatever form, including but
not limited to hard copy, electronically stored or in your memory,
related to the operation of the Company that is not generally known
to or readily ascertainable by other persons who might seek or
accept such information for their own business use. The following
is a non-exclusive list of information that constitutes
Confidential Information meeting the above definition:
(1) information of a technical nature such as inventions;
methods; processes; techniques; ideas; data; equipment; computer
programs; developments; designs; and technical expertise and
know-how developed by the Company; (2) information of a
commercial nature such as trademarks; information about costs,
purchasing, profits, prices, markets, sales, contracts, and selling
strategies; lists of customers and employees; proposals made to
current or prospective clients or customers or other information
contained in bids or offers to such clients or customers; the
arrangements and/or agreement, pricing, layout, design and
implementation of client and/or customer-specific projects; the
identity of vendors and vendor pricing information; financial,
marketing and sales information; and (3) information of a
strategic nature such as future developments or strategies
pertaining to research, development, marketing and sales; and other
similar matters concerning the Company’s planning.
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C. Return of Confidential
Information . Upon your separation from employment for any
reason, the termination of your access to any Confidential
Information or upon request by the Company, you shall return to the
Company all electronic and hard-copy documents and materials
belonging to the Company, whether kept at your business office,
personal residence or otherwise, including all materials containing
or relating to any Confidential Information in any written or
tangible form that you may have in your possession or control and
including electronic equipment. After returning the materials
described in the preceding sentence to the Company, you shall not
retain any copies of any such materials.
D. Confidential Information of
Clients and Vendors . You acknowledge that it is essential to
the Company’s continued success to maintain the
confidentiality of all client and vendor information and trade
secrets. Therefore, you agree not to use or disclose any
confidential client or vendor information except as may be needed
to conduct the Company’s business for the specific client or
vendor. Upon your separation from employment with the Company, you
agree to deliver to an appropriate representative of the Company,
without retaining any copies, notes or excerpts thereof, any and
all documents and information that reference client or vendor
information.
E. Third-Party Confidentiality
Agreements . You acknowledge that the Company from time to time
may have agreements with other persons or entities that impose
obligations or restrictions on the Company regarding inventions
made during the course of work under such agreements, the
confidential nature of such work, or information about or owned by
such person or entity. You agree to be bound by all such
obligations and restrictions as are made known to you and to take
all action necessary to discharge the obligations of the Company
under such agreements.
II. INVENTIONS
A. You shall promptly disclose to
the Company all Inventions (as defined in Subsection II.B), which
are made or conceived by you, either alone or with others, during
the term of your employment with the Company, whether or not during
working hours. Such Inventions directly or indirectly relate to
matters within the scope of your duties or field of responsibility
during your employment with the Company, or are based on your
knowledge of the actual or anticipated business or interests of the
Company, or are aided by the use of time, materials, facilities, or
information of the Company. You will not assert any rights under or
to any Inventions as having been made or acquired by you prior to
being employed by the Company unless such Inventions have been
identified to the Company in writing on a document signed by you at
the time of hire. In addition, in order to avoid any dispute as to
the date on which Inventions were made or conceived by you, they
shall be deemed to have been made or conceived during your
employment with the Company if you take affirmative steps to have
them reduced to practice either during the term of your employment
or within one year after separation from employment.
B. Herein, “Invention”
means, whether or not patentable or copyrightable, the conception,
discovery or reduction to practice of any new idea, technology,
device, method, design, trade secret, composition of matter or any
improvement thereto, including but not limited to any new articles
of manufacture or any improvement to existing articles of
manufacture, any new apparatus or processes/methods for making or
using a composition of matter or article of manufacture, any
computer software or any designs relating thereto, which relate to
the Company’s actual or anticipated business or research
activities or are suggested by or which result directly or
indirectly from use of the Company’s information, time,
materials, or facilities.
C. You agree that all Inventions
that are, or are deemed to be, made or conceived by you during
employment with the Company shall, to the extent permitted by law,
be the exclusive property of the Company, and you hereby assign to
the Company your entire worldwide right, title, and interest in and
to any and all such Inventions. Whenever requested to do so by the
Company, you shall execute any applications, assignments, or other
instruments which the Company may consider necessary or advisable
to apply for and obtain letters patent or copyrights in the United
States or in any foreign country, or to otherwise record or protect
the
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Company’s interest in such Inventions. In
the event that you refuse to sign such an application, assignment,
or other instrument, or, whether because of your physical or mental
incapacity or for any other reason whatsoever, the Company is
otherwise unable, after reasonable effort, to secure your signature
on any such application, assignment, or other instrument, you
hereby irrevocably appoint the Company and its duly authorized
officers and agents as your agent and attorney-in-fact to act for
and in your behalf and stead to execute and file any such
applications, assignments, and instruments and to do all other
lawfully permitted acts to further the prosecution and issuance of
letters patent, copyrights, and other analogous protections with
the same legal force and effect as if executed by you. The
obligations of this Subsection shall continue perpetually beyond
the period of your employment with the Company and are not modified
by any incentive payments made for an Invention or otherwise
subject to any provisions of a Company patent incentive award
policy as may change from time to time.
III. RESTRICTIVE
COVENANTS
For the good and valuable
consideration recited herein, the receipt and sufficiency of which
is hereby acknowledged, and in order to protect the Company’s
legitimate business interests, you agree as follows:
A. Non-Competition
:
1. During your employment with the
Company and for a period of twelve (12) months after your
separation from employment for any reason (the “Restricted
Period”), you will not, directly or indirectly, own, manage,
operate, control, be employed by or otherwise provide services
(whether as an employee consultant, independent contractor or
otherwise, and whether or not for compensation) to any person,
firm, corporation or other entity, in whatever form, engaged in any
Competing Business. For purposes of this Agreement “Competing
Business” is a
