Exhibit 10.5
SEVERANCE AND RELEASE
AGREEMENT
Margie Adelman ("Adelman") and NutraCea
("NutraCea") hereby enter into this Severance Agreement and Release
of Claims ("Agreement") dated November 11, 2008 on the
following terms and conditions. Adelman and NutraCea are each
sometimes referred to herein individually as a "Party" or
collectively as the "Parties".
1.
Recitals - Background and Purpose .
1.1
Prior Employment . Adelman was previously employed by
NutraCea pursuant to a written employment agreement dated January
25, 2005. That agreement and all rights thereunder, including
without limitation all unvested warrants or options, expired
January 25, 2008 and was not renewed or extended. Since that
agreement expired, Adelman has been employed on an "at will" basis.
Adelman's employment with NutraCea shall terminate as of November
11, 2008 ("Separation Date"). Adelman shall receive her
salary and all other benefits from NutraCea until her Separation
Date on the next payroll cycle.
1.2
Prior Payment . Adelman acknowledges that she has
been paid all wages and other benefits due and owing by NutraCea,
except as expressly set forth herein.
1.3
Sever Employment . Adelman, for her part, and NutraCea, for
its part, desire to mutually sever their employment relationship
and settle all claims between them effective as of the Effective
Date on the terms and conditions set forth below.
2.1
Consideration to Adelman . In consideration of the releases
and agreements set forth herein NutraCea agrees to provide Adelman
with the following severance benefits:
(a) A
consulting arrangement with NutraCea providing, for a consulting
fee in the amount of $15,827.73 per month for a term of one year.
This Retainer shall commence on November 11, 2008 and continue
until November 10, 2009. The terms and conditions of such
consulting arrangement shall be as set forth as attached hereto as
Exhibit A ("Consulting Agreement").
(b) NutraCea
shall issue an advance of $20,000, upon the signing of this
agreement as reasonable and actual moving expenses. Adelman agrees
to provide receipts to NutraCea for all such expenses within 30
days of the date the expense is incurred. If the total amount of
the receipts do not exceed $20,000, Adelman agrees to refund the
difference between the amount actually incurred and $20,000 within
30 days from the time she submits the expense report.
(c) Upon
the due execution of this Agreement, NutraCea will pay to Adelman
promptly, for all accrued vacation and personal days not used by
Adelman, a single payment of $20, 273.90, less customary
withholding amounts.
2.2
Consideration to NutraCea . Adelman agrees to:
(a) Surrender,
on her last day of employment, all NutraCea property,
documentation, or information, in her possession or under her
control, other than the Blackberry, laptop computer, and other
personal business items that Adelman will use during the period of
her consulting arrangement pursuant to the Consulting Agreement.
Adelman agrees that she will not copy or download any tiles or
programs from NutraCea's computer systems, networks or equipment or
take any other NutraCea property with her on her last day of
employment, other than that which NutraCea expressly approves for
Adelman's use during the consulting arrangement. NutraCea agrees
that Adelman will continue to have access to certain NutraCea
computer systems and other confidential and proprietary information
of NutraCea as and to the extent provided in the Consulting
Agreement. Adelman shall not disclose or use any of such systems or
information for any purpose other than as expressly permitted by
NutraCea pursuant to the Consulting Agreement, and expressly agrees
to preserve and protect the confidentiality of all NutraCea's
proprietary or confidential information.
(b)
Release NutraCea pursuant to this Agreement and enter into the
Consulting Agreement.
2.3.
ERISA 401(k) Plan . Adelman is entitled to the plan
benefits in her account under an ERISA plan, which vested benefits
will be paid pursuant to the terms of such ERISA plan. NutraCea
specifically agrees that she shall be entitled to employer matching
contributions through the last date of her employment in the
amounts specified in such ERISA plan.
2.4.
Options and Warrants . All warrants and all options to
acquire NutraCea shares of stock previously granted to Adelman
pursuant to her employment agreements with NutraCea that are not
fully vested and exercisable as of the date of this Agreement shall
immediately expire and be of no further force or effect, including
without limitation the Stock Option Agreement dated January 8,
2008, No. SOP08005A ("Warrant'') and any other performance vesting
warrant or option. The parties acknowledge that Adelman's vested
Warrant for the Purchase of Common Stock dated January 25, 2005,
No. "WC-" for 1,000,000 shares of NutraCea Common Stock that
provides for a time based vesting period shall remain in effect for
the balance of the exercise period thereunder (through January 15,
2015) notwithstanding this termination of her employment ("Warrant
Agreement"). A copy of Adelman's Warrant Agreement is attached
hereto as Exhibit B .
3.1
General Release . In accordance with applicable law,
Adelman, on behalf of herself, and her successors, representatives,
attorneys and assigns, hereby releases, acquits, and discharges
NutraCea, and its employees, agents, independent contractors,
officers, directors, members, executors, partners, joint venturers,
and attorneys and all persons acting by, under, through or in
concert with any of them, from any and all claims, demands, causes
of action, liabilities, judgments, liens, rights, debts,
obligations, promises, acts, costs or expenses (including, but not
limited to, attorneys' fees), and charges of whatever nature
("Claims") which Adelman has or
may have against NutraCea, whether known or
unknown, foreseen or unforeseen, economic or
non-economic, fixed or contingent, which relate in any way to
Adelman's employment with NutraCea or any agent, representative or
Adelman (past or present) of NutraCea.
3.2
Specific Release of Statutory Rights Claims . Title VT1 of
the Civil Rights Act of 1964 as amended, the Civil Rights Act of
1991, the Americans With Disabilities Act, the Vietnam Era Veterans
Readjustments Assistance Act of 1974, the California Family Rights
Act of 1991, the Federal Family and Medical Leave Act of 1993, and
the California Fair Employment and Housing Act, as amended, and
applicable provisions of California's Labor Code provide certain
rights to Adelman's in connection with discrimination on a number
of bases, including race, ancestry, color, religion, sex, marital
status, national origin, age, status as a veteran of the Vietnam
era, request or need for family or medical leave, physical or
mental disability, medical condition, or sexual preference. The
rights afforded under these federal and state laws are being
waived, and no complaint or suit shall be filed based on any
alleged violation of these federal and state laws, or any successor
or replacement federal or state laws. All rights are hereby waived
to assert a claim for relief available under these federal and
state laws including, but not limited to, back pay, attorneys'
fees, damages, reinstatement, or injunctive relief, which may
otherwise be recovered based on any alleged violation of these
federal and state laws, or any successor or replacement federal or
state laws.
3.3
Older Workers Benefit Protection Act . Pursuant to the terms
of the Older Workers' Benefit Protection Act (OWBPA), Adelman is
waiving any claims she may have under the Age Discrimination in
Employment Act arising prior to the date she executes this
agreement. Adelman acknowledges that she has had twenty-one (21)
days in which to consider the terms of this waiver. Adelman
acknowledges that, by the terms of this Agreement, he/she has been
advised in writing that the she should consult with an attorney
regarding the terms and conditions of this Agreement. Adelman
further acknowledges that, by the terms of this Agreement, she has
been advised that following execution of this Agreement, he/she has
seven (7) days in which she may revoke her waiver pursuant to the
OWBPA and that this Agreement does not become effective until the
seventh day following execution of the Agreement. The date, seven
(7) days following the execution of the Agreement, shall be the
Effective Date of this Agreement. Adelman further acknowledges that
he/she has consulted with an attorney and is fully aware of
the rights and claims being released by his/her execution of this
Agreement.
3.4
Waiver . Adelman acknowledges that there is a risk that,
subsequent to the execution of this Agreement, she may discover,
incur or suffer from claims which are currently unknown or
unanticipated and which, if known, would have materially affected
his/her decision to execute this Agreement. Adelman acknowledges
that he/she is assuming the risk of such unknown and unanticipated
claims and expressly waives the benefits of Section 1542 of the
California Civil Code, which provides as follows:
"A general
release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
4.
Confidentiality of NutraCea's Proprietary Information .
Adelman acknowledges that by reason of his/her position with
NutraCea, he/she has been given access to confidential or
proprietary information or materials respecting NutraCea’s
business affairs. Such confidential information includes, but is
not limited to, NutraCea's business strategies, financial results,
contractual agreements between NutraCea and other individuals or
entities, strategies and ideas, compilation of information and
records which are owned by NutraCea and are regularly used in
operation of NutraCea’s business, procedures, written
descriptions, processes, research projects, protocols or other
tangible items and documentation, including computer programs,
reports and marketing information. Adelman represents that she has
held all such information confidential and will continue to do so.
To the fullest extent permitted by applicable law, such
confidential information also includes any such items conceived,
originated, discovered or developed by Adelman during the term of
her employment or consulting arrangement with NutraCea. Adelman
represents and agrees that she shall not disclose any such
confidential information. Adelman further represents that all
files, records, documents, fists, equipment, inventions, computer
programs, research projects, protocols, processes and similar items
relating to the business of NutraCea, whether prepared by Adelman
or otherwise coming into Adelman's possession, shall remain the
exclusive property of NutraCea and shall not be removed from the
premises of NutraCea, except as expressly approved by NutraCea for
the purpose of performing her consulting agreement. Adelman further
represents that he/she does not have in his/her possession any of
the confidential information described in this paragraph and has
returned all such confidential information to NutraCea, except as
expressly approved by NutraCea for the purpose of performing her
consulting agreement. Confidential Information does not include any
information that is in the public domain or readily ascertainable
from publicly-available information, or disclosed to Adelman
outside the course and scope of the performance of Adelman's duties
on behalf of NutraCea by a person or entity who has the legal right
to disclose such information.
5.
Resolution of Disputes . Any disputes regarding the rights
or obligations of the parties under this Agreement shall be
conclusively determined by binding arbitration. The arbitration
shall be conducted as follows:
5.1
Binding Arbitration . Any dispute between the parties shall
be submitted to, and conclusively determined by, binding
arbitration in accordance with this paragraph. The provisions of
this paragraph shall not preclude any party from seeking injunctive
or other provisional or equitable relief in order to preserve the
status quo of the parties pending resolution of the dispute, and
the filing of an action seeking injunctive or other provisional
relief shall not be construed as a waiver of that party's
arbitration rights. The arbitration of any dispute between the
parties to this Agreement shall be governed by the provisions of
Arizona law.
5.2
Initiation of Arbitration . In the case of any dispute
between the parties to this Agreement, either party shall have the
right to initiate the binding arbitration process provided for in
this paragraph by serving upon the other party a demand for
arbitration. Notwithstanding any other provision of law, in order
to be enforceable a demand for arbitration must be served within
sixty (60) days of the date on which a party discovers, or
reasonably should have discovered, facts giving rise to a dispute
as defined above.
5.3
Selection of Arbitrators . Within thirty (30) days of
service of a demand for arbitration by either party to this
Agreement, the parties shall endeavor in good faith to select a
single arbitrator. If they fail to do so within that time period,
each party shall have an additional period of fifteen (15) days in
which to appoint an arbitrator and those arbitrators within fifteen
(15) days shall select an additional arbitrator. If any party fails
to appoint an arbitrator or if the arbitrators initially selected
by the parties fail to appoint an additional arbitrator within the
time specified herein, any party may apply to have an arbitrator
appointed for the party who has failed to appoint, or to have the
additional arbitrator appointed, by a judge in Phoenix, Arizona. If
the presiding judge, acting in his or her personal capacity, is
unable or unwilling to appoint the additional arbitrator, that
arbitrator shall be selected in accordance with the rules of the
Judicial Arbitration and Mediation Service ("JAMS").
5.5
Applicable Law . The law applicable to the arbitration of
any dispute shall be the law of the State of Arizona.
5.6
Arbitration Procedures . Except as otherwise provided
in this paragraph, the arbitration shall be governed by the JAMS
employment arbitration rules. In addition, either party may choose,
at that party's discretion, to request that the arbitrators resolve
any dispositive motions prior to the taking of evidence on the
merits of the dispute. By way of example, such dispositive motions
would include, but not be limited to, those which would entitle a
party to summary judgment or summary adjudication of issues, or
resolution of a special defense. In the event a party to the
arbitration requests that the arbitrators resolve a dispositive
motion, the arbitrators shall receive and consider any written or
oral arguments regarding the dispositive motion, and shall receive
and consider any evidence specifically relating thereto, and shall
render a decision thereon, before hearing any evidence on the
merits of the dispute.
5.7
Limitation on Scope of Arbitrators' Award or Decision
. NutraCea and Adelman agree that if the arbitrators find any
disputed claim to be meritorious, the arbitrators shall have the
authority to order legal and/or equitable relief appropriate to the
claim, but that in no event shall the arbitrators have authority to
award punitive or exemplary damages.
5.8
Costs of Arbitration: Attorneys' Fees . Each party shall
bear equally the costs of the arbitration and shall bear its own
attorneys' fees. However, NutraCea and Adelman agree that the
arbitrators, in their discretion, may award to the prevailing party
the costs, including the costs of the arbitration, and
attorneys' fees incurred by that party in
participating in the arbitration process.
6.
Adelman Affirmations . Adelman
affirms that he/she reported all hours worked as of the date of
this Agreement and has been paid, to the extent applicable, all
compensation, including regular wages, overtime, bonuses,
commissions, vacation pay, shares, stock options, and/or other
benefits to which Adelman may have been entitled to. Adelman also
affirms that she received or will receive payment(s) pursuant to
this Agreement, all leave (paid or unpaid) for which she was
entitled, and/or that she was not denied requested leave (paid or
unpaid) for which he/she was entitled to under the Family Medical
Leave Act (FMLA), Americans With Disabilities Act (ADA) any leave
entitlement provided by either California or Arizona law, or local
leave statute or law. Adelman further affirms that he/she has no
known workplace injuries or occupational diseases for which he/she
has not filed a claim for workers' compensation
benefits.
7.
Non-Disparagement. The Parties agree that they shall not
disparage nor defame the other Party, or their respective agents,
members, officers, directors, employees, agents, or affiliates, so
as to harm their business or personal reputation. This provision
does not restrict the Parties from responding fully and truthfully
in the context of a legal or governmental proceeding in which they
are compelled to testify under oath or to respond to a subpoena or
otherwise is required by law to cooperate with a legal or
governmental entity.
8.
Entire Agreement . This Agreement, the Consulting Agreement
and the Warrant Agreement referred to herein constitute the entire
agreement between the parties, all oral agreements being merged
herein, and supersede all prior representations and agreements
except as specifically referred to herein. There are no
representations, agreements, arrangements, or understandings, oral
or written, between or among the parties relating to the subject
matter of this Agreement that are not fully expressed herein, in
the Consulting Agreement, or in the Warrant Agreement.
9.
Waiver . Any of the terms or conditions of this Agreement
may be waived at any time by the party entitled to the benefit
thereof, but no such waiver shall affect or impair the right of the
waiving party to require observance, performance or satisfaction
either of that term or condition as it applies on a subsequent
occasion or of any other term or condition hereof.
10.
Amendment . The provisions of this Agreement may be modified
or amended at any time by agreement of the parties. Any such
amendment or modification as hereinafter may be made, shall be
ineffective to modify this Agreement in any respect unless in
writing and signed by the party or parties against whom enforcement
of the modification or amendment is sought.
11.
Representation by Counsel . This Agreement has been
carefully read by the parties and the contents hereof arc known and
understood by all parties. The parties have each had the
opportunity to receive independent legal advice from attorneys of
their choice with respect to the preparation, review and
advisability of executing this Agreement. Prior to the execution of
this Agreement by each party, the parties' attorneys had the
opportunity to review the Agreement, and the parties acknowledge
that they have executed this Agreement after independent
investigation and without fraud, duress or undue
influence.
12.
No Admissions . Nothing contained in this Agreement shall be
deemed as an admission of any kind by or to any other party to this
Agreement.
13.
Severability . If any provision of this Agreement is
adjudicated by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of the Agreement which can be given
full force and effect without the invalid provision shall continue
in full force and effect and shall in no way be impaired or
invalidated.
14.
Succession . Subject to the provisions otherwise contained
in this Agreement, this Agreement shall inure to the benefit of,
and be binding upon, the successors and assigns of each of the
respective parties hereto. The parties expressly agree and intend
that this Agreement shall be binding on any successor entity to
NutraCea in the event of any merger transaction or an acquisition
of all or substantially all of the assets of NutraCea.
15.
Notices . Any notice under this Agreement shall be in
writing, and any written notice or other document shall be deemed
to have been duly given (i) on the date of personal service on the
parties, (ii) on the third business day after mailing, if the
document is mailed by registered or certified mail, (iii) one day
after being sent by professional or overnight courier or messenger
service guaranteeing one-day delivery, with receipt confirmed by
the courier, or (iv on the date of transmission if sent by
telegram, telex, telecopy or other means of electronic transmission
resulting in written copies, with receipt confirmed. Failure to
give notice in accordance with any of the foregoing methods shall
not defeat the effectiveness of notice actually received by the
addressee.
16.
Captions . All paragraph captions are for reference
only and should not be considered in construing this
Agreement.
17.
Nonassignability . This Agreement shall not be
assigned by any party without the prior written consent of the
other parties. Any assignment contrary to the provisions of this
Agreement shall be deemed a default under the Agreement, allowing
the non-defaulting parties to exercise all remedies available under
law.
18.
Counterparts . The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one-in-the-same
document.
NutraCea and
Margie Adelman have executed this Severance and Release Agreement
on the date first set forth above:
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/s/ Margie
Adelman
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(Margie
Adelman)
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NutraCea, a
California corporation
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By:
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/s/ Brad
Edson
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|
|
(Brad Edson,
Chief Executive Officer)
|
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Exhibit A
Consulting
Agreement
Exhibit "A"
CONSULTING
AGREEMENT
This Consulting Agreement ("Agreement") is made
and entered into as of the 11 th day of November, 2008 by and
between NutraCea, a California corporation (the "Company"),
and Margie Adelman ("Consultant"). The Company desires to
retain Consultant as an independent Consultant to perform
consulting services for the Company and Consultant is willing to
perform such services, on terms set forth more fully below. Adelman
and NutraCea are each sometimes referred to herein individually as
a ''Party" or collectively as the "Parties". In consideration of
the mutual promises contained herein, the parties agree as
follows:
Consultant is a
former Employee of the Company, whose employment with the Company
ended November 11, 2008. At the time that her Employment with the
Company terminated, Consultant executed a Severance and Release
Agreement ("Severance Agreement"). In partial consideration of
Consultant's execution of the Severance Agreement, the Parties have
agreed to enter into a consulting agreement. This Agreement is the
consulting agreement called for, and incorporated into, the
Severance Agreement.
2.
SERVICES AND COMPENSATION
2.1.
Services . Consultant agrees to perform for the Company the
services ("Services") to consult and provide assistance and advice
to the Company as called for the by Company in the areas of: (a)
new business development; (b) investor relations; and (c) public
relations and subject to Consultant's Express Duties as defined in
Section 8 of this Agreement and other services as
mutually acceptable to the Parties.
2.2.
Fee. The Company agrees to pay Consultant $15,827.73 per month for
the Term of this Agreement. Company shall make payment to
Consultant on the 1 st
and 15 th days of
each month, commencing on November 15, 2008.
2.3.
Discretionary Bonus . Consultant shall be eligible
for the award of a discretionary bonus at such times and in such
amounts as may be determined by the Company's Compensation
Committee and the CEO in their absolute discretion.
2.4.
Expenses . The Company will reimburse Consultant within
thirty (30) days following presentation of receipts and evidence of
the expenditures (in accordance with NutraCea’s standard
reimbursement policies for reasonable travel, administrative,
equipment and out-of-pocket expenses incurred in conjunction with
the Services. Any single expense in excess of $500.00 must be
pre-approved by the Company in writing. The Company will advance
funds to Consultant for the payment of pre-approved expenses for a
single project that totals in excess of $2,500.00, and Consultant
must submit all associated receipts promptly thereafter.
2.5.
Term. Unless earlier terminated for Cause (as defined below)
the term of this Consulting Agreement shall commence on November
11, 2008 and shall end on November 10, 2009 (the
"Term").
3.1.
Confidential Information .
"Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services,
customers, customer lists, markets, journals, notebooks, notes,
renderings, samples, data, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances or other
business information disclosed by the Company prior to or after the
execution of this Agreement, either directly or indirectly in
writing, orally or by drawings or inspection of parts or
equipment.
3.2.
Limitations on Use and Discl osure . Consultant will
not, during or subsequent to the term of this Agreement, use the
Company's Confidential Information for any purpose whatsoever other
than the performance of the Services on behalf of the Company or
disclose the Company's Confidential Information to any third party.
It is understood that said Confidential Information shall remain
the sole property of the Company. Consultant further agrees to take
all reasonable precautions to prevent any unauthorized disclosure
of such Confidential Information including, but not limited to,
having each employee of Consultant, if any, with access to any
Confidential Information, execute a nondisclosure agreement
containing provisions in the Company's favor identical to Sections
2, 3 and 7 of this Agreement. Confidential Information does not
include information which (i) is known to Consultant at the time of
disclosure to Consultant by the Company as evidenced by written
records of Consultant, (ii) has become publicly known and made
generally available through no wrongful act of Consultant, or (iii)
has been rightfully received by Consultant from a third party who
is authorized to make such disclosure. Without the Company's prior
written approval, Consultant will not directly or indirectly
disclose to anyone the contents of this Agreement. Confidential
Information does not include any information that is in the public
domain or readily ascertainable from publicly-available
information, or disclosed to Consultant outside the course and
scope of the performance of Consultant's duties on behalf of
Company by a person or entity who has the legal right to disclose
such information.
3.3
Other Confidential Information . Consultant agrees that
Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any
former employer, or Company or other person or entity with which
Consultant has an agreement or duty to keep in confidence
information acquired by Consultant, if any, and that Consultant
will not bring onto the premises of the Company any unpublished
document or proprietary information belonging to such employer,
person or entity unless consented to in writing by such employer,
person or entity. Consultant will indemnify the Company and hold it
harmless from and against all claims, liabilities, damages and
expenses, including reasonable attorneys fees and costs of suit,
arising out of or in connection with any violation or claimed
violation of a third party's rights resulting in whole or in part
from the Company's use of the work product of Consultant under this
Agreement
3.4.
Third Party Confidential Information . Consultant recognizes
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.
Consultant agrees that Consultant owes the Company and such third
parties, during the term of this Agreement 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 or to use it except as necessary in carrying out the
Services for the Company consistent with the Company's agreement
with such third party, to the extent that Consultant is aware of
such agreement.
3.5.
Legal Compulsion . In the event that Consultant becomes
legally compelled to disclose any Confidential Information,
Consultant shall give sufficient notice to the Company to enable
the Company party to prevent or minimize such disclosure to the
extent possible.
3.6.
Records . Consultant agrees that she shall only make such
notes, copies, photocopies, backups, or other written, photographic
or computer generated records relating to the Confidential
Information as are absolutely necessary. Upon termination of this
Agreement, Consultant shall return all copies of Confidential
Information the Company as arc being held, at Company's reasonable
expense
3.7.
Return . Consultant agrees that upon the termination of this
Agreement Consultant will deliver to the Company all of the
Company's property or Confidential Information that Consultant may
have in Consultant's possession or control, including, without
limitation, all devices, records, data, disks, computer files,
notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items
developed by Consultant pursuant to her consulting arrangement (or
her prior employment) with the Company or otherwise belonging to
the Company, its successors or assigns, at Company's reasonable
expense.
4.1.
Inventions . Consultant agrees that all material,
notes, records, drawings, designs, inventions, improvements,
developments, creations, manuals, findings, evaluations, forms,
reviews, information, materials, trademarks, written materials,
discoveries and trade secrets conceived, whether or not subject to
patent or copyright protection, and whether or not originated,
conceived, developed or prepared during regular business hours,
made or discovered by Consultant, solely or in collaboration with
others, prior to and during the period of this Agreement (or during
the prior period of her employment) which relate in any manner to
the business of the Company or that Consultant may be directed to
undertake, investigate or experiment with, or which Consultant may
become associated with in work, investigation or experimentation in
the line of business of Company in performing services for the
Company (collectively, "Inventions"), are the sole property
of the Company. In addition, any Inventions which constitute
copyrightable subject matter shall be considered "works made for
hire" as that term is defined in the United States Copyright Act.
Consultant further agrees to assign (or cause to be assigned) and
does hereby assign fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Consultant agrees to keep
and maintain adequate and current written records of all Inventions
of Consultant during the term of this Agreement. Such records shall
he in the form of notes, sketches, drawings, and any other format
that may be specified by the Company, and shall be available to and
remain the sole property of the Company at all times. Consultant
agrees to promptly disclose all Inventions in writing to the
Company. Further, Consultant shall not disclose any Inventions
other than in the course of her Services to the Company and with
the Company's prior written consent; provided, that any such
disclosure must be (i) in the good faith best interests of the
Company, and (ii) Consultant shall obtain an agreement from any
recipient of the Confidential information to preserve its
confidentiality and not use the Confidential Information other than
as expressly approved by the Company.
4.2.
Protection . Consultant agrees to assist 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 ail 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 right, title and interest in and to
such Inventions, and any copyrights, patents, mask work rights or
other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to
be executed, when it is in Consultant's power to do so, any such
instrument or papers shall continue after the termination of this
Agreement.
4.3.
License . Consultant agrees that if in the course of
performing the Servic
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