NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the receipt and adequacy of which are hereby acknowledged, and in consideration of the recitals set forth above, the Parties hereto agree as follows.
This Agreement shall terminate on August 15, 2015 with no additional notice, unless Zhang agrees to extend the term of the Agreement for another three (3) months. If Zhang agrees to extend the term of the Agreement, this Agreement will terminate on November 15, 2015 with no additional notice.
Any party hereto may change its address for purposes of this paragraph by written notice in the manner provided above.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year hereinabove written.
Exhibit A
EMPLOYEE INVENTIONS AND
PROPRIETARY RIGHTS ASSIGNMENT
AGREEMENT
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1.
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This agreement is to be signed by American Xtal Technology employees for new or continued employment by AXT, Inc. DO NOT USE THIS AGREEMENT WHEN RETAINING INDEPENDENT CONTRACTOR OR CONSULTANT SERVICES.
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2.
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To Be Completed Before Signing. |
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(a)
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Exhibit A (“Prior Inventions”) must be completed prior to signing this agreement in accordance with Paragraph 8 (“Disclosure of Prior Inventions”). If the employee has no such prior inventions, complete the form by writing, “No such prior inventions exist.”
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3.
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Signature. Have the employee sign and date both the signature page and Exhibit B (“Limited Exclusion Notification”) in accordance with Paragraph 14 (“Nonassignable Inventions”).
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EMPLOYEE INVENTIONS AND PROPRIETARY RIGHTS
ASSIGNMENT AGREEMENT
This Agreement is intended to formalize in writing certain understandings and procedures which have been in effect since the time I was initially employed by American Xtal Technology, a division of AXT, Inc. (“Company”). In return for my new or continued employment by Company, I acknowledge and agree that:
1. No Conflict. I will perform for Company such duties as may be designated by Company from time to time. I agree that my employment with the Company is for no specified term, and may be terminated by the Company at any time, with or without cause, and with or without notice. Similarly, I may terminate my employment with the Company at any time, with or without cause and with or without notice. During my period of employment by Company, I will devote my best efforts to the interests of Company and will not engage in other employment or in any activities determined by Company to be detrimental to the best interests of Company without the prior written consent of Company.
2. Prior Work. All previous work done by me for Company relating in any way to the conception, design, development or support of products for Company is the property of Company.
3. Proprietary Information. My employment creates a relationship of confidence and trust between Company and me with respect to any information:
(a) Applicable to the business of Company; or
(b) Applicable to the business of any client or customer of Company, which may be made known to me by the company or by any client or customer of Company, or learned by me in such context during the period of my employment.
All of such information has commercial value in the business in which Company is engaged and is hereinafter called “Proprietary Information.” By way of illustration, but not limitation, Proprietary Information includes any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of Company, and includes, without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information. “Proprietary Information” also includes proprietary or confidential information of any third party that may disclose such information to Company or me in the course of Company’s business.
4. Nondisclosure of Proprietary Information. All Proprietary Information is the sole property of Company, its assigns, and its customers and Company, its assigns and its customers shall be the sole owner of all patents, copyrights, maskworks, trade secrets and other rights in connection therewith. I hereby assign to Company any rights I may have or acquire in such Proprietary Information. At all times, both during my employment by Company and after its termination, I will keep in confidence and trust all Proprietary Information, and I will not use or disclose any Proprietary Information or anything directly relating to it without the written consent of Company, except as may be necessary in the ordinary course of performing my duties as an employee of Company. Notwithstanding the foregoing, it is understood that, at all such times, I am free to use information which is generally known in the trade or industry not as a result of a breach of this Agreement and my own skill, knowledge, know-how and experience to whatever extent and in whatever way I wish.
5. Return of Materials. Upon termination of my employment or at the request of Company before termination, I will deliver to Company all written and tangible material in my possession incorporating the Proprietary Information or otherwise relating to Company’s business.
6. Inventions. As used in this Agreement, the term “Inventions” means any and all new or useful art, discovery, improvement, technical development, or invention whether or not patentable, and all related know-how, designs, maskworks, trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas, artwork, software or other copyrightable or patentable works.
7. Disclosure of Prior Inventions. I have identified on Exhibit A (“Prior Inventions”) attached hereto all Inventions relating in any way to Company’s business or demonstrably anticipated research and development which were made by me prior to my employment with Company (“Prior Inventions”), and I represent that such list is complete. I represent that I have no rights in any such Inventions other than those Prior Inventions specified in Exhibit A (“Prior Inventions”). If there is no such list on Exhibit A (“Prior Inventions”), I represent that I have made no such Prior Inventions at the time of signing this Agreement.
8. Ownership of Company Inventions; License of Prior Inventions. 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 copyrights are “works made for hire” as that term is defined in the United States Copyright Act (17 USCA § 101). I hereby agree promptly to disclose and describe to Company, and I hereby assign and agree to assign to Company or its designee, my entire right, title, and interest in and to all Inventions and any associated intellectual property rights which I may solely or jointly conceive, develop or reduce to practice during the period of my employment with Company (a) which relate at the time of conception or reduction to practice of the invention to Company’s business or actual or demonstrably anticipated research or development, or (b) which were developed on any amount of Company’s time or with the use of any of Company’s equipment, supplies, facilities or trade secret information, or (c) which resulted from any work I performed for Company (“Company Inventions”). I agree to grant Company or its designees a royalty free, irrevocable, worldwide license (with rights to sublicense through multiple tiers of distribution) to practice all applicable patent, copyright and other intellectual rights relating to any Prior Inventions which I incorporate, or permit to be incorporated, in any Company Inventions. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, such Prior Inventions in any Company Inventions without Company’s prior written consent.
9. Future Inventions. I recognize that Inventions or Proprietary Information relating to my activities while working for Company and conceived or made by me, alone or with others, within one (1) year after termination of my employment may have been conceived in significant part while employed by Company. Accordingly, I agree that such Inventions and Proprietary Information shall be presumed to have been conceived during my employment with Company and are to be assigned to Company unless and until I have established the contrary.
10. Cooperation in Perfecting Rights to Inventions.
(a) I agree to perform, during and after my employment, all acts deemed necessary or desirable by Company to permit and assist it, at its expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Inventions hereby assigned to Company. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in the registration and enforcement of applicable patents, copyrights, maskworks or other legal proceedings.
(b) In the event that Company is unable for any reason to secure my signature to any document required to apply for or execute any patent, copyright, mask work or other applications with respect to any Inventions (including improvements, renewals, extensions, continuations, divisions or continuations in part thereof), I hereby irrevocably designate and appoint Company and its duly authorized officers and agents as my agents and attorneys-in-fact to act for and on my behalf and instead of me, to execute and file any such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, maskworks or other rights thereon with the same legal force and effect as if executed by me.
11. No Violation of Rights of Third Parties. My performance of all the terms of this Agreement and as an employee of Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior to my employment with Company, and I will not disclose to Company, or induce Company to use, any confidential or proprietary information or material belonging to any previous employer or others. I am not a party to any other agreement that will interfere with my full compliance with this Agreement. I agree not to enter into any agreement, whether written or oral, in conflict with the provisions of this Agreement.
12. Survival. This Agreement (a) shall survive my employment by Company,(b) does not in any way restrict my right or the right of Company to terminate my employment at any time, for any reason or for no reason, (c) inures to the benefit of successors and assigns of Company, and (d) is binding upon my heirs and legal representatives.
13. Nonassignable Inventions. This Agreement does not apply to an Invention that qualifies fully as a nonassignable Invention under the provisions of Section 2870 of the California Labor Code. I have reviewed the notification in Exhibit B (“Limited Exclusion Notification”) and agree that my signature acknowledges receipt of the notification. However, I agree to disclose promptly in writing to the company all Inventions made or conceived by me during the term of my employment and for one (1) year thereafter, whether or not I believe such Inventions are subject to this Agreement, to permit a determination by Company as to whether or not the Inventions should be the property of Company. Any such information will be received in confidence by Company.
14. No Solicitation. During the term of my employment with Company and for a period of two (2) years thereafter, I will not solicit, encourage, or cause others to solicit or encourage any employees of Company to terminate their employment with Company.
15. Injunctive Relief, A breach of any of the promises or agreements contained herein will result in irreparable and continuing damage to Company for which there will be no adequate remedy at law, and Company shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
16. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or such other addresses as either party may specify in writing.
17. Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents.
18. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
19. Waiver. The waiver by Company of a breach of any provision of this Agreement by me shall not operate or be construed as a waiver of any other or subsequent breach by me.
20. Entire Agreement. This Agreement represents my entire understanding with Company with respect to the subject matter of this Agreement and supersedes all previous understandings, written or oral. This Agreement may be amended or modified only with the written consent of both me and Company. No oral waiver, amendment or modification shall be effective under any circumstances whatsoever.
I certify and acknowledge that I have carefully read all of the provisions of this Agreement and that I understand and will fully and faithfully comply with such provisions.
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“COMPANY”
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“EMPLOYEE”
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AXT, Inc.
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By:
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By:
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/s/ Davis Zhang |
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Printed Name:
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Andrew Sie
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Printed Name:
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Davis Zhang
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Title:
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Director of Human Resources
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Title
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President - Substrate Division
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Dated:
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Dated:
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1/27/00
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Exhibit A
PRIOR INVENTIONS
Exhibit B
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California Labor Code that the foregoing Agreement between you and American XTAL Technology, Inc. (“Company”) does not require you to assign or offer to assign to Company any invention that you developed entirely on your own time without using Company’s equipment, supplies, facilities or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to Company’s business, or actual or demonstrably anticipated research or development of Company.
(2) Result from any work performed by you for Company.
To the extent a provision in the foregoing Agreement purports to require you to assign an invention otherwise excluded from the preceding paragraph, the provision is against the public policy of this state and is unenforceable.
This limited exclusion does not apply to any patent or invention covered by a contract between Company and the United States or any of its agencies requiring full title to such patent or invention to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
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Employee Signature:
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/s/ Davis Zhang |
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Davis Zhang
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(Printed Name of Employee)
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Date:
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1/27/00
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WITNESSED BY:
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/s/ Soraya Rodriguez
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Soraya Rodriguez HR Rep
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(Printed Name of Witness/Company Representative)
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Date:
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1/27/00
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2