Confidentiality, Proprietary Information and Inventions Agreement
`
`In consideration of my employment by Newisys, Inc. (the “‘Company”), the Company’s
`promise to disclose to me its confidential and proprietary information (as defined below),
`the
`compensation now and hereafter paid to me, and for other good and valuable consideration, the receipt
`and sufficiency of which is hereby acknowledged, the undersigned hereby agrees with the Company as
`follows:
`
`1.
`
`Recognition of Company’s Rights; Nondisclosure.
`
`At all times during the term of my employment and thereafter,l will hold in strictest
`confidence and will not disclose, use,
`lecture upon, or publish any of the Company’s Proprietary
`Information (defined below), except as such disclosure, use, or publication may be required in connection
`with my work for the Company, or unless the President or the Board of Directors of the Company
`expressly authorizes such in writing.
`I hereby assign to the Company any rights I may have or acquire in
`such Proprietary Information and recognize that all Proprietary Information shall be the sole property of
`the Company and its assigns and that the Company and its assigns shall be the sole owner of all patent.
`rights, copyrights, trade secret rights, and all other rights throughout the world (collectively, “Proprietary
`Rights”) in connection therewith.
`
`The term “Proprietary Information” shall mean trade secrets, confidential knowledge,
`' data, or any other proprietary information of the Company and each of its subsidiaries or affiliated
`companies. By way of illustration but not limitation, “Proprietary Information” includes (a) inventions,
`trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how,
`improvements, diScoveries, developments, designs, and techniques relating to the business or proposed
`business of the Company and that were learned or discovered by me during the term of my employment
`with the Company,
`(hereinaiter,
`included Proprietary Information is collectively referred to as
`“Inventions”); (b) information regarding plans for research, development, new products and services,
`marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and
`costs, suppliers, customer lists and customers that were learned or discovered by me during the term of
`my employment with the Company; and (c) information regarding the skills and compensation of other
`employees of the Company.
`
`Third Peru Information. I understand, in addition, that the Company may from time to
`2.
`time receive from third parties confidential or proprietary information (“Third Party 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. During the term of my employment and thereafter, I will hold ThirdParty
`Information in the strictest confidence and will not disclose (to anyone other than Company personnel
`who need to know such information in connection with their work for the Company) or use, except in
`connection with my work for the Company, Third Party Information unless expressly authorized by an
`executive officer of the Company in writing.
`
`3.
`
`Assignment of Inventions.
`
`I hereby assign to the Company all my right, title, and interest in and to any and
`3.1
`all Inventions (and all Preprietary Rights with respect thereto), whether or not patentable or registrable
`under copyright or similar statutes, that were made or conceived or reduced to practice or learned by me,
`either alone or jointly with others, during the period of my employment with the Company.
`
`I acknowledge that all original works of authorship that are made by me (solely
`3.2
`or jointly with others) during the term of my employment with the Company and that are within the scope
`of my employment and protectable by copyright are “works made for hire,” as that term is defined in the
`
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`— ZDEE
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`Memory Integrity. LLC
`IPR2D15-DD153. -DD155. -DD153
`EXHIBIT
`lnte r'
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`Memo
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`United States Copyright Act (17 U.S.C. § 101). Inventions assigned to the Company by this Section 3 are
`hereinafter referred to as “Company Inventions.”
`
`Enforcement of Proprietagy Rights. I will assist the Company in every proper way to
`4.
`obtain and from time to time enforce United States and foreign Proprietary Rights relating to Company
`Inventions in any and all countries. To that end I will execute, verify, and deliver such documents and
`perform such other acts (including appearances as a witness) as the Company may reasonably request for
`use in applying for, obtaining, perfecting, evidencing, sustaining, and enforcing such Proprietary Rights
`and the assignment thereof.
`In addition, I will execute, verify, and deliver assignments of such
`Proprietary Rights to the Company or its designee. My obligation to assist the Company with respect to
`Proprietary Rights relating to such Company Inventions in any and all countries shall continue beyond the
`termination of my employment, but the Company shall compensate me at a reasonable rate after my
`termination for the time actually spent by me at the Company’s request on such assistance.
`
`In the event the Company is unable for any reason, after reasonable effort, to secure my
`signature on any document needed in connection with the actiOns specified in the preceding paragraph, 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 to execute, verify, and file any such documents and
`to do all other lawfully permitted acts to further the purposes of the preceding paragraph thereon with the
`same legal force and effect as if executed by me. I hereby waive and quitclairn to the Company any and
`all claims, of any naturewhatsoever, that I now or may hereafter have for infringement of any Proprietary
`Rights assigned hereunder to the Company.
`
`Obligation to Keep Company Informed. During the period of my employment, I will
`5.
`promptly disclose to the Company fully and in writing and will hold in trust for the sole right and benefit
`of the Company any and all Inventions.
`In addition, I will disclose all patent applications filed by me
`during the three (3) years after termination of mylemployment with the Company.
`
`Prior Inventions. Inventions, if any, patented or unpatented, that I made prior to the
`6.
`commencement of my employment with the Company are excluded from the scope of this Agreement.
`To preclude any possible uncertainty, I have set forth 0n Exhibit A attached hereto a complete list of all
`Inventions that I have, alone or jointly with others, conceived, developed, or reduced to practice or caused
`to be conceived, developed, or reduced to practice prior to cornrriencement of my employment with the
`Company, that I consider to be my property or the property of third parties and that I wish to have
`excluded from the scope of this Agreement.
`If disclosure of any such Invention on Exhibit A would
`cause me to violate any prior confidentiality agreement, I understand that I am not to list such Inventions
`in Exhibit A but am to inform the Company that all Inventions have not been listed for that reason.
`
`7.
`
`Other Activities; Non—Competition; Non-Solicitation.
`
`During the term of my employment with the Company, I will not, directly or
`7.1
`indirectly, participate in the ownership, management, operation, financing or control of, or be employed
`by or consult for or otherwise render services to, any person, corporation, firm, or other entity that
`competes in the Company’s Business or Anticipated Business in the State of Texas, or in any other state
`in the United States, or in any country in the world with the Company, nor shall I engage in any other
`activities that conflict with my obligations to the Company.
`
`In consideration of the premises hereof and in further consideration of the
`7.2
`Company’s promise to disclose to me confidential and Proprietary Information and trade secrets of the
`Company and the Company’s promise to provide me with immediate specialized training, and the
`experience I will gain throughout my employment with the Company, and for other good and valuable
`consideration, the receipt and sufficiency of which is hereby acknowledged, I hereby agree that for a
`
`2
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`period of one (1) year alter the date that my employment with the Company is terminated, for any reason,
`I will not, directly or indirectly, (i) compete in the Company’s Business or Anticipated Business in the
`state of Texas, or in any other State of the United States, or in any country in the world where the
`Company engages in business, or proposes to engage in business, on the date of the termination of my
`employment with the Company, or (ii) participate in the ownership, management, operation, financing, or
`control of, or be employed by or consult for or otherwise render services to, any person, corporation, firm,
`or other entity that competes in the Company’s Business or Anticipated Business in the state of Texas, or
`in any other State of the United States, or in any country in the world with the Company on the date of
`termination of my employment. Notwithstanding the foregoing, I am permitted to own up to 5% of any
`class of Securities of any corporation that is traded on a national securities exchange or through Nasdaq.
`For purposes of this Agreement, the “Company’s Business or Anticipated Business” shall mean the
`development, promotion, marketing and!or sale of 64 bit AMZD—based servers.
`
`During the term of my employment and for a period of one (1) year after my
`7. 3
`employment with the Companyrs terminated for any reason, I will not, directly or indirectly, individually
`or on behalf of any other person, firm, partnership, cerporation, or business entity of any type, solicit,
`assist or in any way encourage any current employee or consultant of the Company or any subsidiary of
`the Company to terminate his or her employment relationship or consulting relationship with the
`Company or subsidiary nor will I solicit the employment services of any former employee of the
`Company or any subsidiary of the Company whose employment has been terminated for less than six (6)
`months.
`
`For a period of one (1) year after my employment with the Company is
`7.4
`terminated for any reason, I will not, directly or indirectly, individually or on behalf of any other person,
`firm, partnership, corporation, or business entity of any type, take away or attempt to take away, solicit or
`attempt to solicit, contact, call upon, communicate with, or attempt to communicate with, any Customer
`of the Cempany. For purposes of this section, “Customer” shall mean any company or business entity
`that the Company sells goods or services to or that I hadcontact with or performed services for during my
`employment with the Company.
`
`8.
`
`No Improper Use of Materials
`
`I understand that I shall not use the proprietary or confidential information or trade
`.
`secrets of any former employer or any other person or entity in connection with my employment with the
`Company. During my employment by the Company, I will not improperly use or disclose any proprietary
`or confidential information or trade secrets, if any, of any former employer or any other person or entity
`to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company
`any unpublished documents or any property belonging to any former employer or any other person or
`entity to whom I have an obligation of confidentiality unless consented to in writing by that former
`employer, person, or entity.
`
`9.
`
`No Conflicting Obligation.
`
`I represent that my performance of all the terms of this Agreement and as an employee of
`the Company does not and will not breach any agreement between me and any other employer, person or
`entity.
`I have not entered into, and I agree I will not enter into, any agreement either written or oral in
`conflict herewith.
`
`10.
`
`Return of Company Documents.
`
`When I leave the employ of the Company, I will deliver to the Company all drawings,
`notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and
`
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`fix.“
`
`any other material containing or disclosing any Company hiventions, Third Party Information, or
`Proprietary Information of the Company.
`I further agree that any property situated on the Company’s
`premises and owned by the Company, including disks and other storage media, filing cabinets or other
`work areas, is subject to inspection by Company personnel at any time with or without notice.
`
`11.
`
`Legal and Eguitable Remedies.
`
`Because my services are personal and unique and because I may have access to and
`become acquainted with the Proprietary Information of the Company, the Company shall have the right to
`enforce this Agreement and any of its provisions by injunction, specific performance, or other equitable
`relief, Without bond and without prejudice to any other rights and remedies that the Company may have
`for a breach of this Agreement.
`
`12.
`
`Authorization to Notify New Employer.
`
`I hereby authorize the Company to notify my new employer about my rights and
`obligations under this Agreement following the termination of my employment with the Company.
`
`13.
`
`Notices.
`
`Any notices required or permitted hereunder shall be given to the appropriate party at the
`party’s last known address. Such notice shall be deemedgiven upon personal delivery to the appropriate
`address or if sent by certified or registered mail, three days after the date. of mailing.
`.
`
`14.
`
`General Provisions.
`
`Governing Law. This Agreement will be governed by and construed according
`14.1
`to the laws of the State of Texas without regard to conflicts of law principles.
`
`I hereby irrevocably agree that the exclusive forum for any
`Exclusive Forum-
`14.2
`suit, action, or other proceeding arising out of or in any way related to this Agreement shall be in the state
`or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of any court in
`Travis County, Texas.
`
`This Agreement sets forth the entire agreement and
`Entire Agreement.
`14.3
`understanding between the Company and myself relating to the subject matter hereof and supercedes and
`merges all prior discussions between us. No modification of or amendment to this Agreement, nor any
`waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be
`charged. Any subsequent change or changes in my duties, salary, or compensation will not affect the
`validity or scope of this Agreement. As used in this Agreement, the period of my employment includes
`any time during which I may be retained by the Company as a consultant.
`
`14.4
`
`Severabilifl.
`
`I acknowledge and agree that each agreement and covenant set forth
`(a)
`herein constitutes a separate agreement independently supported by good and adequate consideration and
`that each such agreement shall be severable from the other provisions of this Agreement and shall survive
`this Agreement.
`
`I understand and agree that Section 7 of this Agreement is to be enforced
`(b)
`to the fullest extent permitted by law. Accordingly, if a court of competent jurisdiction determines that
`the scope and/or operation of Section 7 is too broad to be enforced as written, the Company and I intend
`
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`4
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`that the court should reform such provision to such narrower scope and/0r operation as it determines to be
`enforceable, provided, however, that such reformation applies only with respect to the 'operation of such
`provision in the particular jurisdiction with respect to which such determination was made.
`If, however,
`Section 7 is held to be illegal, invalid, or unenforceable under present or future law, and not subject to
`reformation, then (i) such provision shall be fully severable, (ii) this Agreement shall be construed and
`enforced as if such provision was never a part of this Agreement, and (iii). the remaining provisions of this
`Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or
`unenforceable provision or by its severance.
`
`Successors and Assigns. This Agreement will be binding upon my heirs,
`14.5
`executors, administrators, and other legal representatives and will be for the benefit of the Company, its
`successors and assigns.
`
`
`Survival. The provisions of this Agreement shall survive the termination of my
`14.6
`employment for any reason and the assignment of this Agreement by the Company to any successor in
`interest or other assignee.
`
`Emploment. I agree and understand that my employment with the Company is
`14.7
`at will, which means that either I or the Company may terminate the employment relationship at any time,
`with or without prior notice and With or without cause. I further agree and understand that nothing in this
`Agreement shall confer any right with respect to continuation ofemployment by the Company, nor shall
`it interferein any way with my right or the Company’5 right to terminate my employment at any time,
`
`with or without cause
`
`14.8 Waiver. No waiver by the Company of any breach of this Agreement shall be a
`waiver of any preceding or succeeding breach. No waiver by the Company of any right under this
`Agreement shall be construed as a waiver of any other right. The Company shall not be required to give
`notice to enforce strict adherence to all terms of this Agreement.
`
`In the event of any litigation arising from or
`Recoveg of Attorney’s Fees.
`14.9
`relating to this Agreement, the prevailing party in such litigation proceedings shall be entitled to recover,
`from the non—prevailing party, the prevailing party’s costs and reasonable attorney’s fees, in. addition to
`all other legal or equitable remedies to which it may otherwise be entitled.
`
`14.10 Headings. The headings to each section or paragraph of this Agreement are
`provided for convenience of reference only and shall have no legal effect in the interpretation of the terms
`hereof.
`
`{Signature Page Follows]
`
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`

`I HAVE READ THIS CONFIDENTIALITY, PROPRIETARY INFORMATION
`AND INVENTIONS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
`I HAVE
`COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
`
`This Agreement shall be effective as of the first day of my employment With the
`Company, namely: Newisys, Inc.
`
`I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO
`INVENTIONS I MAKE DURING MY EWLOYMENT, RESTRICTS MY RIGHT TO DISCLOSE
`OR USE THE COMPANY’S CONFIDENTIAL AND PROPRIETARY INFORMATION DURING.
`OR SUBSEQUENT TO MY EMPLOYMENT, AND PROHIBITS ME FROM COMPETING WITH
`THE COMPANY AND/OR FROM SOLICITING EMPLOYEES AND CUSTOMERS OF THE
`COMPANY FOR ONE (1) YEAR AFTER MY
`LOYMENT INITH THE COMPANY IS
`
`TERMINATED FOR ANY REASON.
`
`Dated: Mdm Q
`
`,2090.
`
` ture of Employee
`
`MSG
`J Am
`Print Name of Employee
`
`£03.53 Qbe? (Egg. Dr.
`
`ACCEPTED AND AGREED TO:
`
`85% 'T‘
`
`I? 26
`
`Address
`
`Newisys, Inc.
`
`
`
`

`

`EXHIBIT A
`
`Ladies and/0r Gentlemen:
`
`The following is a complete list of all inventions or improvements relevant to the
`subject matter of my employment by Newi'sys, Inc. (the “Company”) that have been made or
`conceived or first reduced to practice by me alone or jointly with others prior to my employment by
`the Company that I desire to remove from the operation of the Company’s Confidentiality, Proprietary
`Infonnation and Inventions Agreement.
`
`I have no inventions or improvements to. disclose.
`
`/ I have inventions or improvements which I have disclosed on the attached Invention
`Disclosure form(s).
`
`l/
`
`Due to certain confidentiality obligations, I cannot disclose certain inventions that
`otherwise would be listed.
`
`
`
`