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I Christopher R. LeClerc, Esq. (SB# 233479) ELECTRONICALLY
LE CLERC & LE CLERC LLP FILED
2 235 Montgomery Street, Suite 1019 Superior Court of Catifornia,
San Francisco, CA 94104 County of San Francisco
3 || Telephone: (415) 445-0900 10/13/2017
Fax: (415) 445-9977 a ete esate
4 || Email: chris@leclerclaw.com Deputy Clerk
5 Attorney for Plaintiff
6 JOANNE IMPERIAL
7 IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA
8 COUNTY OF SAN FRANCISCO
° (UNLIMITED JURISDICTION]
10
JOANNE IMPERIAL, an individual, ) Case No. CGC-17-560698
1 )
Plaintiff, ) DECLARATION OF JOANNE
2 ) IMPERIAL IN SUPPORT OF
B v. ) OPPOSITION TO DEFENDANTS’
) MOTION FOR ORDER
14 || FIBROGEN, INC.: a Delaware ) COMPELLING ARBITRATION AND
corporation; ELIAS KOUCHAKJI, an ) FORSTAY
15 || individual, and DOES 1-50, inclusive, )
16 ) Accompanying documents: Plainitff
Defendants. ) Joanne Imperial’s Opposition to
7 ) Defendants’ Motion for Order
) Compelling Arbitration and For Stay
18 )
) Date: October 26, 2017
19 ) Time: 9:30 a.m.
20 ) Dept.: 302
) Reservation No.: 09271026-05
21 )
) Complaint Filed: August 14, 2017
22 )
23 :
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28 || “DECLARATION ISO OPPOSITION TO NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING ARBITRATION AND FOR
Joanne Imperial v. Fibrogen, Inc., et al., San Francisco Co. Sup. Crt, Case No. CGC-17-560698wa
~
Declaration of Joanne Imperial
I, Joanne Imperial, do declare the following:
I am a former employee of Fibrogen, Inc., and | am the Plaintiff in the above captioned
matter. The following declaration is based upon my own personal knowledge, as I
personally observed and heard the items discussed herein, and I could and would
competently testify to the truth of the matters asserted herein if called to do so asa
witness in this matter.
When I received an offer of employment with FibroGen, Inc., I was not provided with a
copy of the AAA National Rules for the Resolution of Employment Disputes, nor any
other rules explaining the process of arbitration, or even what arbitration was.
Asa condition of my employment with FibroGen, I was required to sign a document
entitled “Confidential Information, Secrecy and Invention Agreement.” A true and
correct copy of the agreement is attached hereto as Exhibit 1.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct. Executed on October_11_, 2017 in__ San Diego
California.
all
JOANNE IMPERIAL
1
DECLARATION ISO OPPOSITION TO NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING ARBITRATION AND FOR
STAY
Joanne Imperial v. Fibrogen, Inc., et al., San Francisco Co. Sup. Crt., Case No. CGC-17-560698EXHIBIT 1C OO
CONFIDENTIAL INFORMATION,
SECRECY AND INVENTION AGREEMENT
+ between FibroGen, Inc. (the "Company"), and
H£Employee").
WHEREAS, Employee is or desires to be employed by the Company in a capacity in which Employee
will have access to, become acquainted with and contribute to, CONFIDENTIAL INFORMATION of the
Company;
WHEREAS, it is of utmost importance that CONFIDENTIAL INFORMATION be kept secret and
confidential;
WHEREAS, the Company desires through its employees and others to make INVENTIONS in carrying
on its business and to make INVENTIONS in new or allied fields, and Employee and the Company understand
that the Company shall have certain ti ights to INVENTIONS of Employee;
NOW, THEREFORE, in consideration of the employment of Employee by the Company, or any other
corporation, firm or partnership which directly, or indirectly, controls, is controlled by, or is under common
control with the Company ("Control" for these purposes being defined as fifty percent (50%) or more direct or
indirect ownership interest), or in which the Company directly or indirectly holds an ownership interest of
twenty-five percent (25%) or more (all of the above hereinafter collectively the. "Company”), this Agreement
being a condition precedent thereof and ancillary thereto, Employee and the Company agree as follows:
1 DEFINITIONS
For purposes of this Agreement:
(a) CONFIDENTIAL INFORMATION means information disclosed to or acquired by Employee
due to Employee's employment by the Company, whether or not related to Employee's duties at the Company
and includes but is not limited to, INVENTIONS, Patent Applications, TRADE SECRETS, any other
information of value relating to the business and/or field of interest of the Company including information with
respect to which the Company is under an obligation of confidentiality with any third party. CONFIDENTIAL
INFORMATION does not include information that is generally knoWn in the relevant trade or industry or any
information known to and freely usable by Employee before Employee's employment by the Company,
provided, however, information for purposes of this Agreement shall be considered CONFIDENTIAL
INFORMATION if not known by the trade generally, even though such information has been disclosed to one
or more third parties pursuant to distribution agreements, joint research agreements, or other agreements or
arrangements entered into by the Company;
(b) INVENTION(S) means any and all inventions, discoveries, concepts and ideas, whether
patentable or not, including, but not limited to, processes, methods, formulas, computer programs,
compositions, compounds, substances, techniques, articles and machines, as well as improvements thereof,
resulting from work performed by Employee for the Company, performed during Employee’s regular working
Conf.agree/employ 1 : 1/8/2007
196453v2Ci C
hours, utilizing equipment, supplies, facilities or CONFIDENTIAL INFORMATION of the Company, which (i)
relate to the actual or demonstrably anticipated research or development of the Company, or (ii) are made or
conceived or reduced to practice by Employee individually or in conjunction with others during either
Employee's employment at the Company; or (fii) based on or related to CONFIDENTIAL INFORMATION,
within one (1) year after termination of employment.
(c) TRADE SECRET(S) means all information, know-how, concepts, data, knowledge, ideas and
materials, however embodied, relating to the business of the Company or the Company's customers which have
not been released publicly by an authorized representative of the Company or have not otherwise lawfully
entered the public domain. TRADE SECRETS shall include but are not limited to information, know-how,
concepts, data, knowledge, computer programs, ideas, compositions, compounds, substances and materials
relating to the Company's existing and future products, processes, INVENTIONS, research and development,
technology, production costs, contract forms, drawings, designs, plans, proposals, marketing and sales plans and
strategies, cost or pricing information, financial information,-promotional methods, volume of sales, names or
classes of customers and vendors, management procedures, organization charts, and employee directories.
2. PROPRIETARY INFORMATION OF OTHERS
Employee shall not use or disclose to the Company, or induce the Company to use, any
information, know-how, concepts, data, knowledge, computer programs, ideas or materials, however embodied,
with respect to which Employee is under an obligation of confidentiality to any third party imposed, by law or
agreement. Employee represents and covenants that Employee's employment will not require Employee to
violate any obligation to, or confidence with, another.
3. SECRECY AGREEMENT
Employee acknowledges that Employee understands the requirement for CONFIDENTIAL
INFORMATION to be kept secret and used only as authorized herein. Employee shall at all times during the
period of employment and thereafter keep in confidence and trust all CONFIDENTIAL INFORMATION.
Employee shall use CONFIDENTIAL INFORMATION only in the course of performing duties as an employee
of the Company, and not for unrelated personal gain. Employee shall not, directly or indirectly, disclose any
CONFIDENTIAL INFORMATION to any person, organization or entity, except in the course of performing
duties as an employee of the Company and only in the manner prescribed by the Company. Employee shall
abide by the Company policies and regulations established from time to time for the protection of
CONFIDENTIAL INFORMATION. During Employee's employment by the Company, employee shall not,
except on behalf of the company, directly, or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity,
engage or participate in any activity of any nature whatsoever, that is competitive with the actual or reasonably
anticipated business of the Company.
4. RETURN OF DOCUMENTS, MATERIALS, ETC.
Employee agrees that all notebooks, documents, reports, drawings, prototypes, materials,
products, tools, designs, equipment, plans, computer programs, proposals, marketing and sales plans, blueprints,
reproductions, specifications, and other documents or things made by Employee or that come into Employee's
possession in the course of employment with the Company are the property of the Company and will not be
used by Employee for any purpose other than the business of the Company. Employee will not deliver,
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196453v2CO Co
reproduce or in any way allow such documents or things to be delivered or be used by any third parties without
specific written direction or consent of a duly authorized representative of the Company for any purpose other
than the business of the Company. Employee may be provided copies of patent applications with respect to
INVENTIONS made by Employee upon request and in the reasonable discretion of the Company. Upon
tennination of employment, Employee will promptly deliver to the Company the above documents, materials
and things together with any copies thereof. Upon termination, Employee also agrees to sign and deliver the
“Termination Certification,” attached hereto as Attachment 3.
5. DISCLOSURE AND ASSIGNMENT OF INVENTIONS
(a) All INVENTIONS shall be the sole and exclusive property of the Company. Employee shall,
without royalty or any other further consideration to Employee therefor, but at the expense of the Company:
@ As promptly as known or possessed by Employee, disclose to the Company alll
information with respect to said INVENTIONS;
(ii) Whenever requested so to do by the Company, both during and after employment,
promptly execute and assign any and all applications, assignments and other instruments which the Company
shall deem necessary to apply for and obtain letters patent of the United States and of Foreign countries for said
INVENTIONS, and to assign and convey to the Company or to the Company's nominee, the sole and exclusive
tight, title and interest in and to said INVENTIONS or any applications or patents thereon;
ii) Whenever requested so to do by the Company, both during and after employment,
deliver to the Company evidence for interference purposes or other legal proceeding and testify in any
interference or other legal proceedings;
(iv) Keep written records of all INVENTIONS, in the form of notes, sketches, drawings
and/or reports. These records are, and will remain the property of the Company and will be available to the
Company at all times; and
{v) Do such other acts as may be reasonably necessary to obtain and maintain United
States and Foreign letters patent for said INVENTIONS.
(b) Employee is hereby advised that this Paragraph 5 does not apply to an invention which
qualifies fully under the provisions of Section 2870 of the California Labor Code. Employee agrees, with
respect to any invention disclosed to the Company that is not required to be assigned to the Company under this
Paragraph 5, that the obligation imposed by Section 2871 of the California Labor Code that such disclosure be
received in confidence by the Company shall be satisfied if the Company uses the disclosure or the invention
only for the purposes of evaluation. Employee agrees that any remedies Employee may have for use or
disclosure of the invention shall be limited to those provided by the patent laws of the United States or foreign
countries. Attachment 1 hereto is a copy of Sections 2870-2872 of the California Labor Code.
6. INVENTION EXCLUSIONS
(a) Employee represent that Attachment 2 hereto identifies all inventions, discoveries,
concepts or ideas, if any, to which Employee presently has any right, title or interest, and which were previously
conceived either wholly or in part by Employee, but neither actually reduced to practice or filed in the United
Conf.agree/employ 3 1/8/2007
196453v2,oO CO
States Patent and Trademark Office and which Employee desires to exclude from the Operation of Paragraph 5
hereof. If Attachment 2 is left blank, Employee represents that there are no such exceptions.
(b) In the event Employee files a patent application or authorizes a patent application to be
filed, including an application relating to subject matter identified in Attachment 2 hereof, whether filed alone
or with others in the future, which contains claims directed to one or more INVENTIONS to which the
Company has rights under Paragraph 5 hereof, each such claim shall be construed as an INVENTION which is
the sole and exclusive property of the Company under the provisions of Paragraph 5 of this Agreement.
7. NONSOLICITATION
Employee agrees that during his or her employment and for a period of one (1) year after the termination
of his or her employment for any reason, and within any county in the United States or other equivalent
geographical subdivision in foreign jurisdictions in which the Company does business (a list of which is
available from Human Resources and is incorporated herein), Employee shall not: (i) induce or attempt to
induce any employee, agent or consultant of the Company or any subsidiary to terminate his or her association
with the Company or any affiliates; or (ii) directly call upon or solicit any of the customers of the Company or
any subsidiary or affiliate that were or became customers and with whom Employee developed a relationship
daring the term of his or her employment (as used herein “customer” shall mean any person or company as listed
as such on the books of the Company or any affiliates or subsidiary).
8. INJUNCTION
Employee agrees that it would be difficult to measure actual damage to the Company from any
breach by Employee of the provisions set forth in Paragraphs 3, 4, 5, 6, or 7 that potential damage to the
Company from any such breach would be impossible to estimate at this time and that money damages alone
would be an inadequate remedy for any such breach. Accordingly, Employee agrees that if Employee shall
breach any provisions of Paragraphs 3, 4, 5, 6, or 7, the Company shall be entitled, in addition to any other
remedies it may have, to specific performance, injunctions or other appropriate orders to correct or restrain any
such breach by Employee.
9. NOT A CONTRACT OF EMPLOYMENT
It is the purpose of this Agreement to expressly define certain of the conditions which shall apply
to the employment of Employee by the Company. This Agreement is not an offer or contract of employment
and does not impose on either Employee or the Company any obligation to continue employment. This
Agreement does not alter Employee’s at-will employment status. This Agreement shall not prohibit Employee
10. CONFLICTING EMPLOYMENT
Employee agrees that, during the term of his or her employment with the Company, Employee will
devote full time to the business of the Company and will not directly or indirectly, engage, individually or as an
officer, director, employee, consultant, advisor, partner or co-venturer, or as a stockholder or other proprietor
Conf.agree/employ 4 1/8/2007
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with a significant interest in any firm, corporation, partnership or other organization (in case of any such
ownership or participation) in the business of manufacturing, selling or distributing products in competition
with the products and/or services of the Company or its subsidiaries or affiliates. Employee shall furnish to the
Board of Directors of the Company a detailed statement of any outside employment or consulting services in
which Employee seeks to engage or invest, and, as from time to time requested by said Board, resubmit for
approval a detailed statement thereof. In the event said Board determines in good faith that such violation or
conflict exists, Employee shall refrain from such employment, consulting services or investment. It is intended
and agreed that during the term of his or her employment, Employee will knowingly perform no act which may
confer any competitive benefit or advantage upon any enterprise competing with the Company, its subsidiaries,
affiliates or any successor.
il. GENERAL
(2) Employee further agrees that prior to termination of employment, Employee will meet
with representatives of the Company to review the terms of this Agreement and Employee's obligations under it.
(®) — Employee shall keep the Company personnel advised of Employee's home and business
address for a period of three years after termination of Employment in order for the Company to contact
Employee regarding the continuing obligations imposed by this Agreement.
(©) - To the extent that any of the agreements set forth herein, or any word, phrase, clause or
sentence thereof, shall be found to be illegal or unenforceable for any reason, such agreement, word, clause,
phrase, or sentence shall be modified or deleted in such manner so as to make the Agreement as modified legal
and enforceable under applicable laws, and the balance of the agreement or parts thereof shall not be affected
thereby, the balance being construed as severable and independent.
@_— This Agreement shall be binding upon Employee and Employee's heirs, executors,
assigns and administrators, and shall inure to the benefit of the Company, its successors and assigns.
(©) This Agreement shall be governed by the laws of the State of California and shall in all
respects be interpreted and enforced under the laws of California. The language of 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 any of the
parties. Employee and the Company specifically agree that any legal action relating to this Agreement shall be
instituted and prosecuted in the courts in San Mateo County, California, and each party waives the right to
change venue therefrom.
) This Agreement may be signed in two counterparts, each of which shall be deemed an
original and, which shall together constitute one instrument.
(g) The use of the singular in this Agreement includes the plural, as appropriate.
(h) This Agreement sets forth the entire Agreement between Employee and the Company
with respect to the subject matter hereof and fully supersedes any and all previous oral or written
communications, representations, promises or agreements between the parties relating thereto. This Agreement
may not be changed or otherwise modified except only by an instrument in writing signed by the Employee and
an authorized representative of the Company.
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@ Waiver by the Company of a breach of any provision of this Agreement or of another
employee's agreement will not waive any other or subsequent breach.
12. ATTORNEY FEES
If either party brings action to enforce the terms of this Agreement, the prevailing party in any
such action shall be entitled to reasonable attorneys’ fees and costs of suit to be paid by the losing party as
determined by the court.
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13. SURVIVAL OF AGREEMENT
The sights and obligations of the parties hereto shall survive termination of employment of
Employee with the Company.
On the basis that this Agreement is made freely and voluntarily, Employee and the Company
hereby execute this Agreement by fixing their signatures hereto:
PLEASE READ CAREFULLY: THIS AGREEMENT AFFECTS IMPORTANT RIGHTS, DO NOT SIGN
UNLESS YOU HAVE READ IT CAREFULLY AND ARE SATISFIED THAT YOU UNDERSTAND IT
COMPLETELY.
FIBROGEN, INC.
sine: VY, He
Date: Hpe
EMPLOYEE:
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Conf.agree/employ 7 1/8/2007
196453v2PROOF OF SERVICE
I, Christopher R. LeClerc, declare that I am a resident of the State of California, over the
age of eighteen years, and not a party to the within action. My business address is 235
Montgomery Street, Suite 1019, San Francisco, CA 94104.
On October{P , 2017, I served the following document(s):
¢ DECLARATION OF JOANNE IMPERIAL IN SUPPORT OF OPPOSITION TO
DEFENDANTS’ MOTION FOR ORDER COMPELLING ARBITRATION AND
FOR STAY
on the parties listed below as follows:
Linda M. Moroney
Sara A. Moore
Gordon & Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
( By first class mail by placing a true copy thereof in a sealed envelope with postage
thereon fully prepaid and placing the envelope in the firm's daily mail processing center
for mailing in the United States mail at San Francisco, California.
( By facsimile machine (FAX) by personally transmitting a true copy thereof via an
electronic facsimile machine.
IX] By email: pursuant to stipulation of the parties and order of the Court, causing to be
emailed a true copy thereof to to the addressees listed herein.
By Federal Express or overnight courier.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on October 13, 2017, at San Fr:
PROOF OF SERVICE
Joanne Imperial v. Fibrogen, Inc., et al., San Francisco Co. Sup. Crt., Case No, CGC-17-560698,