exv10w27



 





Exhibit 10.27




CONFIDENTIALITY AGREEMENT




     THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is executed and made effective as of the      
day of                     , 200   by and between by and between TomoTherapy Incorporated, a Wisconsin
corporation (the “Company”), and the undersigned employee (“Employee”).



RECITALS




     The Company is engaged in the highly-competitive business of developing and selling products
and services that deliver and/or support the imaging, planning, delivery, or verification of
radiation therapy and/or radiation surgery to patients with cancer and other diseases treated with
radiation therapy and/or radiation surgery. Employee desires to be employed by or continued to be
employed by the Company, and acknowledges he or she will have access to certain knowledge and
information developed by and for the Company at great expense and that is kept and protected as
confidential and that is essential for carrying out the Company’s business in a highly
competitive market.



     Employment or continued employment with the Company is contingent upon Employee’s execution of
this Agreement. In consideration for being offered employment or continued employment with the
Company, and/or for other consideration, such as stock options, salary increases or the like,
Employee accepts this Agreement.



     NOW, THEREFORE, in consideration of the mutual understandings, covenants and agreements set
forth herein and in the recitals, the receipt and sufficiency of which is hereby acknowledged, IT
IS AGREED AS FOLLOWS:



     1. Nondisclosure of Confidential Information. Except as required in the conduct of
the Company’s business or as expressly authorized in advance and in writing on behalf of the
Company, Employee shall not use or disclose, directly or indirectly, any Confidential Information
during such time that Employee is employed by the Company (the “Period of Employment”). In
addition, for a period of two (2) years following the Period of Employment, Employee shall not use
or disclose, directly or indirectly, any Confidential Information within the geographical area in
which such use or disclosure could harm the Company’s existing or potential business interests.
This prohibition does not apply to Confidential Information after it has become generally known in
the industry in which the Company conducts its business.



     2. Nondisclosure of Trade Secrets. During the Period of Employment, Employee shall do
what is reasonably necessary to prevent unauthorized misappropriation or disclosure and threatened
misappropriation or disclosure of the Company’s Trade Secrets and, after the Period of Employment,
Employee shall not use or disclose the Company’s Trade Secrets as long as they remain, without
misappropriation, Trade Secrets.



     3. General Know-How. Nothing in this Agreement shall be deemed to prevent Employee’s
post-employment use of Employee’s general knowledge and skills acquired or enhanced during the
Period of Employment or to prohibit Employee from seeking other employment after the
Period of Employment, so long as such use or employment does not violate the provisions of this
Agreement.



     4. Delivery of Materials to Company. Immediately upon termination of Employee’s
employment, Employee shall deliver to the Company all written, recorded, and graphical material,
documents, hardware, software and items relating to the business of the Company (and copies
thereof) (other than owned by Employee) in Employee’s possession or under Employee’s control
regardless of whether such materials, documents and items contained Confidential Information.



     5. Representations and Warranties. Employee represents and warrants (i) that Employee
has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with
Employee’s undertaking of a relationship with the Company, and (ii) that Employee has not entered
into and will not enter into any agreement (whether oral or written) in conflict with this
Agreement. Employee’s representations, warranties, and obligations contained in this Agreement
shall survive after the Period of Employment.



     6. Change in Employment Status. The covenants of this Agreement shall remain in force
in the event that Employee’s employment status changes within the Company or changes from
being employed by the Company to being employed by an existing or future subsidiary or
affiliate of the Company. In the event of a change to such



1









 






subsidiary and affiliate then the subsidiary or affiliate shall have the same rights and the
same protections, without further documentation or agreement, as enjoyed by the company under this
Agreement.



     7. Injunctive Relief; Breach. Employee acknowledges that failure to carry out any
obligation under this Agreement, or a breach of any provision herein, will constitute immediate and
irreparable damage to the Company, which cannot be fully and adequately compensated in money
damages and which will warrant preliminary and other injunctive relief, an order for specific
performance, and other equitable relief. Such remedy, however, shall be cumulative and
nonexclusive and shall be in addition to any other remedy to which the parties may be entitled.



     8. Assignment. Neither this Agreement nor any rights or duties of Employee hereunder
shall be assignable by Employee, and any such purported assignment shall be void. The Company may,
however, assign all or any of its rights hereunder.



     9. Entire Agreement; Amendment. This Agreement constitutes the complete understanding
between Employee and the Company on this subject and may not be modified or amended,
except by writing and executed by a duly authorized representative of the Company and by Employee.
This Agreement is intended to be the final, complete, and exclusive statement of the terms of the
parties’ agreements regarding these subjects and supersedes all other prior and contemporaneous
agreements and statements on these subjects. This Agreement is effective for Employee’s entire
Period of Employment, even if such period commenced prior to the date of this Agreement.



     10. Definitions. All capitalized terms not defined in the text of this Agreement,
have the following meanings:




     (a) “Confidential Information” means information, to the extent it is not a Trade
Secret, which is possessed by or developed for the Company and which relates to the
Company’s existing or potential business or technology, which information is generally not
known to the public and which information the Company seeks to protect from disclosure to
its existing or potential competitors or others, including, without limitation, business
plans, strategies, existing or proposed bids, costs, technical developments, existing or
proposed research projects, financial or business projections, investments, marketing plans,
negotiation strategies, training information and materials, information generated for client
engagements and information stored or developed for use in or with computers. Confidential
Information also includes information received by the Company from others which the Company
has an obligation to treat as confidential, including all information obtained in connection
with client engagements and partnering arrangements.




     (b) “Trade Secret” means all information possessed by or developed for the Company,
including, without limitation, a compilation, program, device, method, system, technique or
process, to which all of the following apply: (i) the information derives independent
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value from
its disclosure or use and (ii) the information is the subject of efforts to maintain secrecy
that are reasonable under the circumstances.



     11. Waiver of Breach. The waiver by either party of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent breach by either
party. Any waiver by either party must be in writing and signed by a representative who has the
authority to bind such party.



     12. Invalidity of any Provision. The provisions of this Agreement are severable, it
being the intention of the parties hereto that should any provision hereof be invalid or
unenforceable, such invalidity or unenforceability of any provisions shall not effect the remaining
provisions hereof, but the same shall remain in full force and effect as if such invalid or
unenforceable provision or provisions were omitted.



     13. Governing Law; Jurisdiction and Venue; Construction. This Agreement shall be
governed by the internal laws of the State of Wisconsin. The parties irrevocably consent to the
sole and exclusive jurisdiction and venue in the appropriate state or federal court in Wisconsin.
This Agreement shall be construed without regard to any rules of construction concerning the
draftsman hereof.



     14. Notices. Any notice, request, consent or approval required or permitted to be
given under this Agreement or pursuant to law shall be sufficient if it is in writing, and if and
when it is hand delivered, faxed, or sent



2









 






by regular mail, with postage prepaid, to Employee’s residence (as noted in the Company’s
records), or to the Company’s principal office, as the case may be.



     15. Employee Acknowledgment. Employee acknowledges that Employee has read and
understands this Agreement, and that Employee has entered into it freely and voluntarily based on
Employee’s own judgment and not on any representations or promises other than those contained in
this Agreement.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	TomoTherapy Incorporated	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

Employee Signature

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 

Employee (Print Name)

	 	 	 	 	 	 	 	 







3