exv10w2



 






EXHIBIT 10.2




INTELLECTUAL PROPERTY, CONFIDENTIALITY

AND NON-COMPETITION AGREEMENT

(EMPLOYEES)




     This Agreement made as of the 17th day of October, 2005, between OrthoLogic, Corp., a Delaware
corporation with its principal place of business in Arizona (the “Company”) and Dana Shinbaum, an
employee of the Company (the “Employee”).



RECITALS




     A. The Employee is engaged by the Company, or is about to be engaged by the Company, as an
employee (the “Engagement”).



     B. The Employee has been, or will be, given access by the Company to confidential and
proprietary information of the Company.



     C. The Company has retained the Employee pursuant to the terms of the Engagement. If Employee
is already employed, the Company is offering the Employee new employment benefits and/or other
consideration in exchange for the Employee’s promise to abide by the terms of this Agreement.



     D. During the term of the Engagement, Employee may, in the course of providing services under
the Engagement, create or develop Inventions and/or Creations for the Company, as defined herein,
that are intended to be owned exclusively by the Company, and the parties understand that Company
shall exclusively own all Inventions and Creations.



AGREEMENTS




     IN CONSIDERATION of the foregoing and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Employee and the Company agree as follows:



     1. Nondisclosure of Proprietary Information. The Company invents, develops,
manufactures and markets processes and products that involve experimental or inventive work. The
Company’s success depends upon the protection of these processes and products by patent, by
copyright, or by secrecy. The Employee has had, or may have, access to the Company’s Proprietary
Information, as defined in this Section 1. Access to this Proprietary Information is given to the
Employee only if the Employee agrees to keep that information secret as follows:



          (a) “Proprietary Information” is all information, in whatever form, tangible or intangible,
pertaining in any manner to the business of the Company, or any of its agents or employees, which
was produced by any employee, consultant, or other independent employee of the Company including:
(i) any and all methods, inventions, improvements, information, data or discoveries, whether or not
patentable, that are secret, proprietary, confidential or generally undisclosed, (including
information originated or provided by the Employee) in any area of knowledge, including information
concerning trade secrets, processes, software, products, patents, patent applications, inventions,
formulae, apparatus, techniques, technical data, clinical data, clinical trials, improvements,
specifications, servicing, attributes and relative attributes



1









 




relating to any of the Company’s equipment, devices, processes, or products, or research and
development thereof; and (ii) the identities of the Company’s customers and potential customers
(“Customers”) including Customers the Employee successfully cultivates or maintains during this
Engagement using the Company’s products, name or infrastructure and the identities of contact
persons at Customers including the preferences, likes, dislikes and technical and other
requirements of Customers and contact persons with respect to product types, pricing, sales calls,
timing, sales terms, rental terms, lease terms, service plans, and other marketing terms and
techniques; (iii) the Company’s business methods, practices, strategies, forecasts, know-how,
pricing, and marketing plans and techniques; (iv) the identity of key accounts, the identity of
potential key accounts; and (v) the identities of the Company’s key employees. Proprietary
Information shall not include information which (i) is known to Employee on a non-confidential
basis prior to the Engagement with the Company; or (ii) is or hereafter becomes known to the
general public without breach or fault on the part of Employee.




          (b) The Employee acknowledges that the Company has exclusive property rights to all
Proprietary Information and the Employee hereby assigns any and all rights Employee might otherwise
possess in any Proprietary Information to the Company. Except as required in the performance of
the duties of this Engagement with the Company, the Employee will not at any time during or after
the term of this Engagement, without the prior written consent of the Company, directly or
indirectly use, communicate, disclose, disseminate, lecture upon, publish articles or otherwise put
in the public domain, any Proprietary Information or any other information of a secret,
proprietary, confidential or general undisclosed nature relating to the Company, its products,
Customers, processes or services, including information relating to testing, research, development,
manufacturing, marketing or selling.



          (c) All documents, records, notebooks, notes, memoranda, data bases, and similar repositories
containing Proprietary Information made or compiled by the Employee at any time, including any and
all copies thereof, are and shall be the property of the Company, shall be held by Employee in
trust solely for the benefit of the Company, and shall be delivered to the Company by Employee on
the termination of this Engagement or at any other time upon the request of the Company.



          (d) The Employee agrees to certify in writing at or before final termination of the Engagement
that the Employee no longer has in the Employee’s possession, custody or control of any copies of
any business documents generated at or relating to the Company nor any Proprietary Information,
whether in hard copy, on a computer’s hard drive, on disks or in any other form or media.



          (e) All information regarding the Company’s business disclosed to, learned by or developed by
the Employee during the course of the Engagement shall be presumed to be Proprietary Information.



          (f) The Employee agrees to provide notification, at the start of any new engagement or
employment, to all subsequent employers or contracting parties who are involved in any way in the
medical products or services industry or are otherwise competitors of the Company, of the terms and
conditions of this Agreement, along with a copy of this Agreement.



2









 





     2. Inventions.



          (a) “Inventions” shall include discoveries, concepts, and ideas, whether patentable or not,
including improvements, know-how, data, processes, methods, formulae, and techniques, concerning
any past, present or prospective Company activities that the Employee makes, discovers or conceives
(whether or not during the hours of this Engagement or with the use of the Company’s facilities,
materials or personnel), either solely or jointly with others during this Engagement by the Company
and, if based on or related to Proprietary Information, at any time after termination of such
Engagement. All Inventions shall be solely the property of the Company and the Employee agrees to
perform the requirements of this Section with respect thereto without the payment by the Company of
any royalty or any consideration other than as provided in this Agreement.



          (b) The Employee shall maintain written notebooks in which Employee shall set forth on a
current basis information as to all Inventions describing in detail the procedures employed and the
results achieved as well as information as to any studies or research projects undertaken on the
Company’s behalf, whether or not in the Employee’s opinion a given project has resulted in an
Invention. The written notebooks shall at all times be the property of the Company and shall be
surrendered to the Company upon termination of this Engagement or upon request of the Company.



          (c) The Employee shall apply, at the Company’s request and expense, for United States and
foreign letters patent either in the Employee’s name or otherwise as the Company shall desire.



          (d) The Employee hereby assigns to the Company all of Employee’s rights to Inventions,
applications for United States Patent and/or foreign letters patent and to United States and/or
foreign letters patent granted upon Inventions, including without limitation, all renewals,
reissues, extensions, continuations, divisions or continuations-in-part thereof.



          (e) The Employee shall acknowledge and deliver promptly to the Company without charge to the
Company but at its expense such written instruments (including applications and assignments) and do
such other acts, such as giving testimony in support of the Employee’s inventorship, as may be
necessary in the opinion of the Company to obtain, maintain, extend, reissue and enforce United
States and/or foreign letters patent relating to the Inventions and to vest the entire right and
title thereto in the Company or its nominee.



          (f) The Employee’s obligation to assist the Company in obtaining and enforcing patents for
Inventions in any and all countries shall continue beyond the Engagement, but the Company shall
compensate the Employee at a reasonable rate for time actually spent at the Company’s request on
such assistance. If the Company is unable for any reason whatsoever to secure the Employee’s
signature to any lawful and necessary document required to apply for or execute any patent
application with respect to any Inventions, including renewals, reissues, extensions,
continuations, divisions or continuations-in-part thereof, the Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents, as agents and
attorneys-in-fact to act for and in Employee’s behalf and instead of the Employee, to execute and
file any application and to do all other lawful permitted acts to further the



3









 




prosecution and issuance of patents with the same legal force and effect as if executed by the
Employee.




          (g) As a matter of record the Employee has identified on Exhibit A, attached hereto, all
inventions or improvements relevant to the activity of the Company which have been made or
conceived or first reduced to practice by the Employee alone or jointly with others prior to
Engagement by the Company, that Employee desires to remove from the operation of this Section 2;
and the Employee covenants that such list is complete. If there is no such list or if no Exhibit A
is attached, the Employee represents that no such inventions and improvements have been made at the
time of signing this Agreement.



          (h) The Employee will not assert any rights under any inventions, discoveries, concepts or
ideas, or improvements thereof, or know-how related thereto, as having been made or acquired prior
to engagement by the Company or during the term of Engagement if based on or otherwise related to
Proprietary Information.



          (i) No provisions of this Section shall be deemed to limit the restrictions applicable to the
Employee under Section 1.



     3. Creations.



          (a) “Creations” shall include, without limitation, all designs, logos, slogans, improvements,
plans, developments, marks, names, symbols, phrases, graphics, advertising, images, art work,
processes, business methods, trade secrets, any and all copyrightable expression, all copyrightable
works, and all patentable subject matter, in all media (whether existing now or to be invented),
whether or not protected by statute, including all derivative works.



          (b) Creations, whether conceived, created, made, developed, or acquired by or for Employee as
a result of the work performed during the Engagement shall be deemed “work made for hire” under the
United States Copyright laws, Title 17 of the United States Code, and Company will be deemed the
author of the Work Product.



          (c) Employee hereby assigns to Company its entire right, title, and interest, if any, in and
to any and all Creations, including without limitation all copyright rights, patent rights, trade
secrets, trademark rights and associated goodwill, along with all rights to derivative works and
the right to apply for and obtain any applicable registrations and all other available legal
protections for the Creations.



          (d) The Employee shall acknowledge and deliver promptly to the Company without charge to the
Company but at its expense such written instruments (including applications and assignments) and do
such other acts, such as giving testimony in support of the Employee’s creation, as may be
necessary in the opinion of the Company to obtain, maintain, extend, reissue and enforce any
applicable registrations relating to the Creations and to vest the entire right and title thereto
in the Company or its nominee.



     4. Shop Rights. The Company shall also have the royalty-free right to use in its
business, and to make, use and sell products, processes and/or services derived from any



4









 




inventions, discoveries, concepts and ideas, whether or not patentable, including processes,
methods, formulas and techniques, as well as improvements thereof or know-how related thereto,
which are not within the scope of Inventions as defined in Section 2 but which are conceived or
made by the Employee during the period Employee is engaged by the Company or with the use or
assistance of the Company’s facilities, materials or personnel.




     5. Non-solicitation of Customers or Employees of Company.



          (a) For a period of one year after termination of this Engagement, Employee agrees not to
solicit or call on, either for Employee or on behalf of any third party or entity, any Customer,
with or for whom Employee had any contact or notice of during the Engagement unless the products or
service represented do not compete with any of the products or services manufactured, assembled,
distributed, offered or sold by the Company.



          (b) During the term of this Engagement and for a period of one year after termination of this
Engagement, the Employee will not solicit any of the Company’s employees for a competing business
or otherwise induce or attempt to induce such employees to terminate their employment with the
Company.



     6. Exclusive Engagement. During the period of this Engagement by the Company, the
Employee shall not, without the Company’s express written consent, engage in any employment,
consulting activity or business other than for the Company. Activity as a passive investor in or
outside director for another business enterprise shall not be considered a violation of this
Section for so long as such business enterprise is not competing or conducting business with the
Company and so long as such activities do not adversely impact Employee’s performance of job
duties.



     7. Non-Compete. The parties acknowledge that the Employee has acquired or will
acquire much knowledge and information concerning the Company’s business and Customers as the
result of the Employee’s Engagement. The parties further acknowledge that the scope of business in
which the Company is engaged is nationwide and very competitive, that such business is one in which
few companies can compete successfully, and that competition by the Employee in that business would
injure the Company severely. Accordingly, Employee agrees that during this Engagement and for a
period of one year following the end of the Engagement, Employee will not take any of the following
actions with respect to any customer that Employee worked with during the engagement:



          (a) Directly or indirectly, sell or attempt to sell products for or on behalf of any business
that manufactures, assembles, distributes, offers or sells any products that compete with products
manufactured, assembled, distributed, offered or sold by the Company;



          (b) Persuade or attempt to persuade any Customer or client to which the Company has made a
proposal or sale, or with which the Company has been having discussions, not to transact business
with the Company, or instead to transact business with another person or organization;



          (c) Solicit the business of any company that has been a Customer or client of the Company at
any time during the Employee’s Engagement by the Company, provided,



5









 




however, if the Employee becomes employed by or represents a business that exclusively sells
products that do not compete with products then marketed or intended to be marketed by the Company,
such contact shall be permissible; or




          (d) Work directly or indirectly in any position that could result in the disclosure of
Proprietary Information.



     8. Compliance with Law and Amendment by Court: If there is any conflict between any
provision of this Agreement and any statue, law, regulation or judicial precedent, the latter shall
prevail, but the provisions of this Agreement thus affected shall be curtailed and limited only to
the extent necessary to bring them within the requirements of the law. If any part of this
Agreement shall be held by a court of proper jurisdiction to be indefinite, invalid or otherwise
unenforceable, the entire Agreement shall not fail on account thereof, but: (i) the balance of the
Agreement shall continue in full force and effect unless such construction would clearly be
contrary to the intention of the parties or would result in an unconscionable injustice; and (ii)
the court shall amend the Agreement to the extent necessary to make the Agreement valid and
enforceable.



     9. Freedom From Engagement Restrictions. The Employee represents and warrants that
the Employee has not entered into any agreement, whether express, implied, oral, or written, that
poses an impediment to the Employee’s Engagement by the Company including the Employee’s compliance
with the terms of this Agreement. In particular, the Employee is not subject to a preexisting
non-competition agreement, and no restrictions or limitations exist respecting the Employee’s
ability to perform fully the Employee’s obligations with the Company including the Employee’s
compliance with the terms of this Agreement.



     10. Third Party Trade Secrets. During the Employee’s Engagement by the Company, the
Employee agrees not to copy, refer to, or in any way use information which is proprietary to any
third party (including any previous employer). The Employee represents and warrants that the
Employee has not improperly taken any documents, listings, hardware, software, discs, or any other
tangible medium that embodies proprietary information from any third party, and that the Employee
does not intend to copy, refer to, or in any way use information which is proprietary to any third
party in performing the Employee’s duties for the Company.



     11. Legitimate Business Purpose. Employee hereby acknowledges and agrees that each
and every provision of this Agreement serves a legitimate business purpose and exists to protect
the legitimate business interests of the Company.



     12. Injunctive Relief; Legal Fees. The Employee acknowledges that a breach of this
Agreement is likely to result in irreparable and unreasonable harm to the Company, that damages
caused by a breach would be extremely difficult to calculate, and that injunctive relief, as well
as damages, would be appropriate. If the Employee breaches this Agreement, the Employee shall
promptly reimburse the Company for all legal fees (and disbursements) incurred by the Company to
enforce this Agreement or to pursue remedies arising as a result of such breach.



6









 





     13. Successors and Assigns. This Agreement is personal to the Employee and any may
not be assigned by Employee. Any and all rights acknowledged or granted to the Company under this
Agreement may be freely assigned by the Company.



     14. Prior Agreements; Waiver. If Employee currently has a written confidentiality or
non-compete agreement with the Company, this Agreement will supersede all provisions of that
agreement that cover the same subject matter as this Agreement. This Agreement constitutes the
entire Agreement between the parties pertaining to the subject matter contained in it and
supersedes those provisions of all prior and contemporaneous agreements, representations and
understandings of the parties pertaining to the same subject matter. No waiver of any of the
provisions of this Agreement shall be deemed to, or shall constitute a waiver of, any other
provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.



     15. Governing Law. This Agreement is entered into in Arizona and shall be governed by
the laws of the State of Arizona for all purposes. The parties hereby submit themselves to the
courts of the State of Arizona, located in the County of Maricopa, for the purpose of personal
jurisdiction in any action to enforce this Agreement.



     16. Construction. The language in all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning and not strictly for or against either party.
The headings contained in this Agreement are for reference purposes only and will not affect the
meaning or interpretation of this Agreement in any way. All terms used in one number or gender
shall be construed to include any other number or gender as the context may require. The parties
agree that each party has reviewed this Agreement and has had the opportunity to have counsel
review the same and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of this Agreement. Whenever the
words “include,” “includes,” or “including” are used in the Agreement, they shall be deemed to be
followed by the words “without limitation.”



     17. Consultation. The Employee is advised to obtain the advice of legal counsel
before signing this Agreement. By their signatures below, the Employee and the Company’s
representative acknowledge that they have each read the entire contents of this Agreement, that
they fully understand the terms and conditions hereof, and that each has independently had an
opportunity to review and discuss the Agreement with the advisor(s) or counsel of their respective
choosing.



	 	 	 
	OrthoLogic Corp.

	 	 
	 
	 	 
	/s/ James M. Pusey
	 	 
	James M. Pusey

For the Company
	 	 





7









 





	 	 	 	 	 
	Employee’s Signature:

	 	/s/ Dana Shinbaum
	 	 
	 

	 	 	 	 




Print Name and Title of the Employee: Dana Shinbaum, V.P., Business Development & Strategic Marketing




	 	 	 	 	 
	Date:

	 	17 — Oct. — 2005
	 	 
	 

	 	 	 	 





8









 





EXHIBIT A



Ladies and Gentlemen:




     The following is a complete list of all inventions or improvements relevant to the subject
matter of my engagement by OrthoLogic (the “Company”) which have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by the Company:



     _X___No inventions or improvements



     ___See below



      



      



     ___Additional sheets attached



	 	 	 	 	 
	 

	 	Name:
	 	/s/ Dana B. Shinbaum
	 

	 	 	 	 
	 

	 	Date:
	 	17 — Oct. — 2005