exv10w28



 






Exhibit 10.28




Terayon Communication Systems, Inc.




PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT




     As an employee of Terayon Communication Systems, Inc., a Delaware corporation, and/or any of
its subsidiaries or affiliates (together, the “Company”), and as a condition of my employment by
the Company and in consideration of the compensation now and hereafter paid to me, I agree to the
following:




	1.  	Maintaining Confidential Information.






	 	(a)  	Company Information. I agree at all times during the term of my
employment and thereafter to hold in strictest confidence, and not to use, except for
the benefit of the Company, or to disclose to any person, firm or corporation, without
the written authorization of the Board of Directors of the Company, any trade secrets,
confidential knowledge or data, proprietary materials, or other proprietary information
of the Company. By way of illustration and not limitation, such proprietary materials
and information shall include proprietary and/or confidential materials and information
relating to software, test data, protocols, assay components, procedures and
formulations, products, processes, know-how, designs, formulas, methods, developmental
or experimental work, improvements, discoveries, plans for research, new products,
marketing and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers, and information regarding the
skills and compensation of other employees of the Company.
	 
	 	(b)  	Former Employer Information. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary information or
trade secrets of my former or concurrent employers or companies, if any, and that I
will not bring onto the premises of the Company any unpublished documents or property
belonging to my former or concurrent employers or companies unless consented to in
writing by said employers or companies.
	 
	 	(c)  	Third Party Information. I recognize 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, in some cases, to use in only for certain limited purposes. I
agree that I owe the Company and such third parties, both during the term of my
employment 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 (except in a manner that is consistent with the Company’s agreement with
the third party) or use it for the benefit of anyone other than the Company or such
third party (consistent with the Company’s agreement with the third party.)






	2.  	Assignment of Inventions and Original Works.






	 	(a)  	Inventions and Original Works Retained by Me. I have attached hereto
as Exhibit A a complete list of all inventions, original works or authorship,
developments, improvements, and trade secrets, relating in any way to the Company’s
present or anticipated business, that I have, alone or jointly with others, conceived,
developed or reduced to practice prior to the commencement 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 the Agreement. If disclosure of an item in
Exhibit A would cause me to violate any prior confidentiality agreement, I understand
that I am not to list such in Exhibit A but am to inform the Company that all items
have not been listed for that reason. A space is provided on Exhibit A for such
purposes. If no list is attached, I represent that there are no such items.
	 
	 	(b)  	Inventions and Original Works Assigned to the Company. I agree that I
will make prompt written disclosure to the Company, will hold in trust for the sole
right and benefit of the




 









 












Company, and will assign to the Company all my right, title
and interest in and to any ideas, inventions, compositions of matter, original works of
authorship, developments, improvements or trade secrets which I solely or jointly
conceive or reduced to practice, during the period of my employment with the Company.
I recognize that the Agreement does not require assignment of any invention which
qualifies fully for protection under Section 2870 of the California Labor Code
(hereinafter “Section 2870”), which provides as follows:




	 	(1)  	Any provision in an employment agreement which
provides that an employee shall assign, or offer to assign, any of his
or her rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely on his or her own
time without using the employer’s equipment, supplies, facilities, or
trade secret information except for those inventions that either:






	 	(a)  	Relate at the time of conception
or reduction to practice of the invention to the employer’s
business, or actual or demonstrably anticipated research or
development of the employer;
	 
	 	(b)  	Result from any work performed by
the employee for the employer.






	 	(2)  	To the extent a provision in an employment
agreement proports to require an employee to assign an invention
otherwise excluded from being required to be assigned under subdivision
(a), the provision is against the public policy of this state and is
unenforceable.





     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 copyright are “works
made for hire,” as that term is defined by the United States Copyright Act (17 U.S.C., Section
101).




	 	(a)  	Inventions and Original Works Assigned to the United States. I agree
to assign to the United States government all my right, title and interest in and to
any and all inventions, original works of authorship, developments, improvements or
trade secrets whenever full title to same is required to be in the Untied States by a
contract between the Company and the United States or any of its agencies.
	 
	 	(d)  	Obtaining Letters Patent, Copyright Registrations and Other
Protections. I will assist the Company in every proper way to obtain and
enforce the United States and foreign proprietary rights relating to any and all
inventions, original works or authorship, developments, improvements, or trade secrets
of the Company in any and all countries. To that end I will execute, verify and
deliver such documents and perform such other acts (including appearing as a witness)
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 in any and all countries shall continue beyond the
termination of my employment, but the Company shall compensate 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 with the same legal force and effect as
if executed by me. I hereby waive and quitclaim to the Company and all claims of any nature
whatsoever which I now or may hereafter have for infringement of any and all proprietary
rights assigned to the Company.




(e) Obligation to Keep the Company Informed. In addition to my obligations
under paragraph 2(b) above, during the period of my employment and for one year after
termination of my employment for any reason, I will promptly disclose to the Company
fully and in writing all patent applications filed by me on my behalf. At the time of
each such disclosure, I will advise the Company in writing of any inventions that I
believe fully qualify for protection under Section2870; and I will at that time provide
the Company in writing all evidence necessary to substantiate that belief. I understand
that the Company will keep in confidence and will not disclose to third parties without
my consent any proprietary information disclosed in writing to the Company pursuant to
the Agreement relating to inventions that qualify for protection under Section 2870;
will preserve the confidentiality of any invention that does not qualify for protection
under Section 2870. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by the
Company) of all proprietary information developed by me and all inventions made
by me during the period of my employment at the Company, which records shall be
available to and remain the sole property of the Company at all times.




	3.  	No Conflicting Employment: No Inducement of Other Employees.






               I agree that during the period of my employment by the Company I will not, without the
Company’s express written consent, engage in any other employment or business activity
directly related to the business in which the Company is now involved or becomes involved,
nor will I engage in any other activities which conflict with my obligations to the Company.
For the period of my employment by the Company and for one (1) year after the date of
termination of my employment by the Company, I will not induce any employee of the company
to leave the employment of the company.




	4.  	No Conflicting Obligations.






               I represent that my performance of all terms of this Agreement and as an employee of
the Company does not and will not breach any agreement to keep in confidence information
acquired by me in confidence or in trust prior to my employment by the company. I have not
entered into, and I agree I will not enter into, any agreement either written or oral in
conflict herewith.




	5.  	Return of Company Documents and Materials.






               When I leave the employ of the Company, I will deliver to the Company (and will not
keep in my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, software, test data, protocols, assay
components, or other property, together with all copies, thereof (in whatever medium
recorded belonging to the Company, its successors or assigns. 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. Prior to leaving, I will cooperate
with the Company in completing and signing the Company’s termination statement for technical
and management personnel.



 









 





I have been informed
and acknowledge that the unauthorized taking of Company’s trade
secrets





	 	(I)  	could result in civil liability under California Civil Code Section 3426, and that,
if willful, could result in an award for triple the amount of the Company’s damages and
attorney’s fees; and
	 
	 	(II)  	is a crime under California Penal Code Section 444(c), punishable by
imprisonment for a time not exceeding a year, or by a fine not exceeding five thousand
dollars ($5,000), or by both.






	6.  	Notification of New Employer.





               In the event that I leave the employ of the Company, I hereby consent to the
notification of my new employer of my rights and obligations under this Agreement.




	7.  	Legal and Equitable 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, without prejudice to any other rights and remedies
that the Company may have for a breach of Agreement.




	8.  	General Provisions.






(a) Not an Employment Contract. I agree and understand that nothing in
this Agreement shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with my right or the company’s right
to terminate my employment at any time, with or without cause.




(b) Governing Law; Consent to Personal Jurisdiction. This Agreement will
be governed by and constructed according to the laws of the State of California. I
hereby expressly consent to the personal jurisdiction of the state and federal
courts located in Santa Clara County, California for any lawsuit filed there against
me by the Company arising from or relating to this Agreement.




(c) Entire Agreement. This Agreement sets forth the final, complete and
exclusive agreement and understanding between the Company and me relating to the
subject matter hereof 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 and signed by both the Company and
me. Any subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.




(d) Severability. If one or more of the provisions in the Agreement are
deemed unenforceable by law, such provisions shall be deemed severed from the
Agreement and the remaining provisions will continue in full force and effect.




(e) Successors and Assigns. This Agreement will be binding upon heirs,
executors, administrators and other legal representatives and will not be for the
benefit of the Company, its successors and its assigns.




(f) Survival. The provisions of this Agreement shall survive the
termination or my employment and the assignment of this Agreement by the company to
any successor in interest or other assignee.



 









 






(g) Waiver. No waiver by the company of any breach of this Agreement shall
be a waiver of any proceeding 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.



This Agreement shall be effective as of the first day of my employment with the Company, which is
November 29, 2004.



I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE DURING MY EMPLOYMENT, AND
RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO
MY EMPLOYMENT.



I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED OUT
EXHIBIT A TO THIS AGREEMENT.



Dated: November 10, 2004.




ACCEPTED AND AGREED TO:




Mark Richman




/s/ Mark Richman




Terayon Communication Systems, Inc.




	 	 	 
	By:

	 	/s/ Jerry Chase

	 	 	

	 	 	
Jerry Chase

Chief Executive Officer






 









 






EXHIBIT A




Terayon Communication Systems, Inc.

4988 Great America Parkway

Santa Clara, CA 95054



Gentlemen:




	 	 	 
	1.

	 	The following is a complete list of all inventions, original works of
authorship, developments, improvements, and trade secrets, relating in any way to the
present or anticipated business of Terayon Communication Systems, Inc. (the “Company”)
that have been made or conceived or first reduced to practice by me alone or jointly
with others prior to my engagement by the Company:
	 
	 	 
	à

	 	No inventions or improvements.
	 
	 	 
	à

	 	See below.
	 
	 	 
	

	 
	 	 
	à

	 	Due to confidentiality agreements with prior employer, I cannot disclose certain
inventions that would otherwise be included on the above-described list.
	 
	 	 
	à

	 	Additional sheets attached.
	 
	 	 
	2.

	 	I propose to bring to my employment the following devices, materials and
documents of a former employer or other person to whom I have an obligation of
confidentiality that are not generally available to the public, which materials and
documents may be used in my employment pursuant to the express written authorization of
my former employer or such other person (a copy of which is attached hereto):
	 
	 	 
	à

	 	No inventions or improvements.
	 
	 	 
	à

	 	See below.
	 
	 	 
	

	 
	 	 
	à

	 	Additional sheets attached.






	 	 	 	 	 
	

	 	Date:                                         ,                     .
	 	Very truly yours,