Form of Confidentiality, Assignment of Intellectual Property and Restrictive Covenants Agreement

Exhibit 10.2

TACTILE SYSTEMS TECHNOLOGY, INC.
Confidentiality, Assignment of Intellectual Property and
Restrictive Covenants Agreement

This Confidentiality, Assignment of Intellectual Property and Restrictive Covenants Agreement (together with Exhibit A and Exhibit B, this “Agreement”), entered into effective [_________________], 20[__] (the “Effective Date”), is intended to formalize in writing certain understandings and procedures which are and will be in effect during the time [_____________] (“Employee”) is employed by Tactile Systems Technology, Inc., a Delaware corporation (the “Company”). In consideration of employment by the Company, the compensation and benefits Employee receives in connection with such employment, Company providing Employee with access to Company Proprietary Information, and other good and valuable consideration, Employee and Company agree as follows (as modified by Exhibit A):

All of such information has commercial value in the business in which Company is engaged and is referred to as “Company Proprietary Information” in this Agreement. By way of illustration, but not limitation, Company Proprietary Information includes trade secrets, 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. Employee acknowledges that the above-described knowledge and information constitutes a unique and valuable asset of the Company and represents a substantial investment of time and expense by the Company, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company or its Affiliates would be wrongful and would cause irreparable harm to the Company. Employee will refrain from intentionally committing any acts that would materially reduce the value of such knowledge or information to the Company or its Affiliates. Company Proprietary Information shall not include information that is generally available to and known by the public, provided that such disclosure to the public is through no direct or indirect fault of Employee or person(s) acting on Employee’s behalf.

As used in this Agreement, “Third Party Proprietary Information” includes proprietary or confidential information of any third party who may disclose such information to Company or Employee in the course of Company’s business.

As used in this Agreement, “Affiliates” includes the Company and each corporation, partnership, or other entity which controls the Company, is controlled by the Company, or is under common control with the Company (in each case “control” meaning the direct or indirect ownership of 50% or more of all outstanding equity interests).

Outside of employment by the Company and after termination of employment with Company, Employee may use the general skill, knowledge, know-how and experience acquired during employment with the Company, provided that such use (1) does not relate (a) directly to the business of the Company or (b) to the Company’s actual or demonstrably anticipated research or development, (2) does not result from any work performed by Employee for the Company, or (3) is required to be disclosed by law or legal process. In addition, the foregoing obligations of confidentiality shall not apply to any knowledge or information that (i) is now or subsequently becomes generally publicly known, other than as a direct or indirect result of the breach of this Agreement, (ii) is independently made available to Employee in good faith by a third party who has not violated a confidential relationship with the Company or its Affiliates, or (iii) is required to be disclosed by law or legal process. In addition, notwithstanding any other language in this Agreement, nothing in this Section 4 or otherwise in this Agreement is intended to prohibit Employee from providing information to a governmental agency, participating in an investigation or proceeding conducted by a governmental agency, or discussing or disclosing terms and conditions of employment or otherwise exercising any rights Employee has under Section 7 of the National Labor Relations Act.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the Effective Date first above written.

EXHIBIT A TO
CONFIDENTIALITY, ASSIGNMENT OF INTELLECTUAL PROPERTY AND
RESTRICTIVE COVENANTS AGREEMENT

STATE LAW MODIFICATIONS

The purpose of this Exhibit A to the Confidentiality, Assignment of Intellectual Property and Restrictive Covenants Agreement (the “Agreement”) is to modify certain terms of the Agreement while Employee is providing services to the Company (as defined in the Agreement) in certain states as described below.

The Agreement remains in effect and applies to Employee while Employee is employed by the Company or any of its Affiliates. However, if Employee is employed by the Company or any of its Affiliates in one of the states listed below, the provisions for that state modify the Agreement as indicated, but only while Employee remains employed by the Company or any of its Affiliates in that state or territory or as otherwise provided by applicable law. If, at any time, Employee is relocated by the Company or any of its Affiliates to another state, then this Agreement’s provisions for the new location will apply, instead of the provisions for Employee’s former location.

If no specific modifications are listed for the state in which Employee is employed, this Exhibit A does not apply. For purposes of this Exhibit A, Employee is employed in only one state at any given time.

CALIFORNIA

While Employee is employed by the Company or any of its Affiliates in California, Section 7 (Inventions, Ideas, and Expressions of Ideas) shall not apply to any inventions that qualify under the following:

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: (1) 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; or (2) result from any work performed by the employee for the employer. To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under California Labor Code Section 2870(a), the provision is against the public policy of this state and is unenforceable.

While Employee is employed by the Company or any of its Affiliates in California, Section 4 (Nondisclosure of Proprietary Information) shall not be applied in a manner that prohibits Employee from disclosing any factual information related to a claim filed in a civil action or a charge filed with a governmental agency as specifically permitted under Section 1001 of the California Code of Civil Procedure, or from discussing or disclosing information about unlawful acts in the workplace such as harassment or discrimination or any other conduct that Employee has reasonable cause to believe is unlawful as specifically permitted under Section 12964.5 of the California Government Code.

While Employee is employed by the Company or any of its Affiliates in California, disregard Section 12 (Agreement Not to Compete) with respect to any restriction after Employee’s employment with the Company ends for any reason.

While Employee is employed by the Company or any of its Affiliates in California, the below replaces Section 13 (Agreement Not to Solicit or Hire) in its entirety:

13.            Agreement Not to Solicit or Hire. During Employee’s employment with the Company or any Affiliates of the Company and for a period of twelve (12) consecutive months from and after the termination of Employee’s employment, whether such termination is with or without cause, or whether such termination is at the instance of Employee or the Company, Employee will not, except on behalf of the Company, directly or indirectly, solicit or otherwise directly or indirectly request, advise or induce any then current employee or contractor of the Company to terminate or otherwise adversely change its relationship with the Company.

While Employee is employed by the Company or any of its Affiliates in California, the below replaces Section 14 (Agreement Not to Solicit) in its entirety:

14.            Agreement Not to Solicit. During Employee’s employment with the Company or any of its Affiliates, Employee will not, except on behalf of the Company, directly or indirectly, solicit or accept business from any current customer, supplier or other business contact of the Company. After the termination of Employee’s employment, whether such termination is with or without cause, or whether such termination is at the instance of Employee or the Company, Employee will not, directly or indirectly, individually or as a participant with any other person or company, or on behalf of myself or any third party: (i) solicit or accept business from any current or potential customer, supplier or other business contact of the Company, or (ii) interfere with the relationship between the Company or any current or potential customer, supplier or other business contact of the Company in a manner that is detrimental to, or reasonably likely to be detrimental to, the legitimate business interests of the Company or any of its Affiliates, in any case if, in so doing, Employee accesses, uses or discloses any Company Proprietary Information. Employee acknowledges and agrees that the names and addresses of the Company’s and its Affiliates’ customers, suppliers or other business contacts, and all other confidential information related to them, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to Employee during Employee’s employment, constitute Company Proprietary Information.

While Employee is employed by the Company or any of its Affiliates in California, disregard Section 23 (Governing Law) and Section 24 (Jurisdiction and Venue). These sections do not apply.

COLORADO

While Employee is employed by the Company in Colorado, this Agreement—including but not limited to Section 4 (Nondisclosure of Proprietary Information)—shall not be applied in a manner that prohibits Employee from discussing or disclosing, either orally or in writing, information or underlying facts of any alleged discriminatory or unfair employment practice, or any other conduct as specifically permitted under Colorado Revised States Section 34-34-407.

While Employee is employed by the Company or any of its Affiliates in Colorado, disregard Section 23 (Governing Law) and Section 24 (Jurisdiction and Venue). These sections do not apply.

DISTRICT OF COLUMBIA

While Employee is employed by the Company or any of its Affiliates in the District of Columbia, disregard Section 12 (Agreement Not to Compete). This section does not apply.

ILLINOIS

While Employee is employed by the Company or any of its Affiliates in Illinois, the below shall replace the second paragraph of this Agreement in its entirety:

In consideration of employment by the Company, and as a condition of Employee’s initial employment the Company, the compensation and benefits Employee will earn in connection with such employment, the Company providing Employee with access to Company Proprietary Information (as defined in Section 3 below), and other good and valuable consideration, including, a one-time payment in the amount of $500.00, less applicable withholdings, the sufficiency and receipt of which Employee acknowledges is adequate consideration as required under 820 ILCS 90/15, Employee and Company agree as follows and as modified in the Exhibits:

While Employee is employed by the Company or any of its Affiliates in Illinois, the following section is added to the Agreement as Section 32:

32.            Notice. Employee understands and acknowledges that Employee is hereby being advised by the Company to consult with an attorney prior to signing this Agreement. Employee’s decision whether to sign this Agreement is Employee’s voluntary decision and made with full knowledge that the Company has advised Employee to consult with an attorney. Employee understands that Employee has 14 calendar days from the date Employee receives this Agreement to consider whether Employee wishes to sign this Agreement. If Employee signs this Agreement before the end of the 14-day period, it will be Employee’s voluntary decision to do so because Employee has decided that Employee does not need any additional time to decide whether to sign this Agreement. Employee also agrees that any changes made to this Agreement before Employee signs it, whether material or immaterial, will not restart the 14-day period.

LOUISIANA

If Employee is employed by the Company or any of its Affiliates in Louisiana, the following shall replace the “Restricted Territory” definition in Sections 12 (Agreement Not to Compete) and 14 (Agreement Not to Solicit):

“Restricted Territory” means any municipality or parish in which Employee performed services for the Company during Employee’s employment with the Company.

MASSACHUSETTS

If Employee is a resident or employed by the Company or any of its Affiliates in Massachusetts, the below shall replace the second paragraph of this Agreement in its entirety:

In consideration of employment by the Company, and as a condition of Employee’s initial employment the Company, the compensation and benefits Employee will earn in connection with such employment, the Company providing Employee with access to Company Proprietary Information (as defined in Section 3 below), and other good and valuable consideration, including, a one-time payment in the amount of $500.00, less applicable withholdings, the sufficiency and receipt of which Employee acknowledges is independent from initial or continued employment, and that such consideration is mutually agreed by the parties as required under Mass. Gen. L. ch. 149 § 24L, Employee and Company agree as follows and as modified in the Exhibits:

If Employee is, and for at least 30 days immediately preceding the termination of Employee’s employment with the Company or any of its Affiliates, a resident or employed in Massachusetts, the following replaces Section 23 (Governing Law) in its entirety:

This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its laws pertaining to conflict of laws.

If Employee is, and for at least 30 days immediately preceding the termination of Employee’s employment with the Company or any of its Affiliates, a resident or employed in Massachusetts, the following replaces Section 24 (Jurisdiction and Venue) in its entirety:

The parties mutually agree that any litigation regarding the interpretation or enforcement of this Agreement shall be brought in the Business Litigation Section of the Superior Court of Suffolk County, Massachusetts, and Employee consents to the exercise of personal jurisdiction over Employee by that court. Employee agrees that the Business Litigation Section of the Superior Court of Suffolk County, Massachusetts shall be the exclusive forum for litigation regarding the interpretation or enforcement of this Agreement. By so agreeing, Employee understands that Employee is surrendering the right to commence litigation against the Company outside that court.

NORTH DAKOTA

While Employee is employed by the Company or any of its Affiliates in North Dakota, disregard Section 12 (Not to Compete) with respect to any restriction after Employee’s employment with the Company ends for any reason. This section does not apply with respect to any restriction after Employee’s employment with the Company ends for any reason.

OKLAHOMA

While Employee is employed by the Company or any of its Affiliates in Oklahoma, disregard Section 12 (Not to Compete) with respect to any restriction after Employee’s employment with the Company ends for any reason. This section does not apply with respect to any restriction after Employee’s employment with the Company ends for any reason.

OREGON

While Employee is employed by the Company or any of its Affiliates in Oregon, the following section is added to the Agreement as Section 32:

32.            Notice. Employee understands and acknowledges that Employee is hereby being advised by the Company to consult with an attorney prior to signing this Agreement. Employee’s decision whether to sign this Agreement is Employee’s voluntary decision and made with full knowledge that the Company has advised Employee to consult with an attorney. Employee understands that Employee has 14 calendar days from the date Employee receives this Agreement to consider whether Employee wishes to sign this Agreement. If Employee signs this Agreement before the end of the 14-day period, it will be Employee’s voluntary decision to do so because Employee has decided that Employee does not need any additional time to decide whether to sign this Agreement. Employee also agrees that any changes made to this Agreement before Employee signs it, whether material or immaterial, will not restart the 14-day period.

WASHINGTON

While Employee is employed by the Company or any of its Affiliates in Washington, disregard Section 23 (Governing Law) and Section 24 (Jurisdiction and Venue). These sections do not apply.

WISCONSIN

If Employee is employed by the Company or any of its Affiliates in Wisconsin, the following shall be added to the end of Section 13 (Agreement Not to Solicit or Hire):

This covenant applies only to employees, officers, or consultants of the Company or its Affiliates with whom the Employee had Material Contact during the last two years of the Employee’s employment with the Company or its affiliates. For the purposes of this Section 13, “Material Contact” means direct personal contact between the Employee and such employee, officer, or consultant of the Company or its Affiliates in the course of the performance of the Employee’s job duties on behalf of the Company or its Affiliates.

If Employee is employed by the Company or any of its Affiliates in Wisconsin, the below shall replace Section 14 (Agreement Not to Solicit) in the entirety:

14.            Agreement Not to Solicit. During Employee’s employment with the Company or any Affiliates of the Company and for a period of twelve (12) consecutive months from and after the termination of Employee’s employment, whether such termination is with or without cause, or whether such termination is at the instance of Employee or the Company, Employee will not, except on behalf of the Company, solicit or accept business from any current or potential customer, supplier or other business contact of the Company of which Employee serviced, solicited, or contacted in any way during Employee’s employment with the Company or any Affiliates of the Company or about whom Employee had trade secret or Company Proprietary Information of, or interfere with the relationship between the Company or any of its Affiliates and any current or potential customer, supplier or other business contact of the Company in a manner that is detrimental to, or reasonably likely to be detrimental to, the legitimate business interests of the Company or any of its Affiliates.

EXHIBIT B TO
CONFIDENTIALITY, ASSIGNMENT OF INTELLECTUAL PROPERTY AND
RESTRICTIVE COVENANTS AGREEMENT

LIST OF PRIOR INVENTIONS