Confidentiality and Non-Compete Agreement
EXHIBIT
10.2
Confidentiality
and Non-Compete Agreement
The
undersigned (the “Executive”) is a shareholder or an employee of ICELAND HEALTH,
INC., a New York corporation (“Iceland Health”), and wishes to induce Nutrition
21, Inc., a New York corporation (the “Corporation”) to acquire Iceland Health
by merger into a subsidiary of the Corporation concurrently herewith. Iceland
Health and the Corporation are each hereafter sometimes referred to as the
“Company.”
In
consideration of the foregoing and the Executive’s being employed or retained to
perform or to continue to perform services for the Company (the period of such
employment or retention being referred to herein as the “Employment Period”),
Executive hereby agrees as follows:
1. Obligation
of Confidentiality.
1.1
“Confidential Information” means any information and data of a confidential
nature disclosed by the Company whether in oral, written, graphic, or
machine-readable form, but does not include any information which (a) at the
time of disclosure was part of the public domain; (b) after disclosure becomes
part of the public domain by publication or otherwise, except by breach of
this
agreement by Executive; (c) is independently created or discovered by Executive
at any time more than three months after the termination of the Employment
Period; or (d) at any time after the termination of the Employment Period is
disclosed to Executive by a third party not known to Executive to be under
any
confidentiality obligation to the Company.
1.2
The
Executive hereby agrees to hold the Company’s Confidential Information in strict
confidence and not to disclose such Confidential Information to any third
parties nor make use of such Confidential Information for his own benefit or
for
the benefit of another, or for any use other than in the course of providing
services for the Company in the course of employment, provided, however, that
Executive is not restricted under this Section 1.2 from any dealings with,
for
his own benefit or otherwise, the persons listed as vendors on Schedule 9(p)(vi)
to the Merger Agreement (other than Lysi Hf and suppliers of ingredients for
products made or distributed by or for Iceland Health or the Company), provided
that Executive does not breach any of the other provisions of this
Agreement.
1.3
Upon
the written request of Company or termination of the Executive’s relationship
with the Company, for any reason whatsoever, the Executive shall return to
Company and/or destroy all Confidential Information, and all copies thereof,
properly belonging to Company, unless otherwise instructed in writing by
Company. In addition, upon request by the Company, the Executive shall promptly
deliver a written certification affirming that Executive has complied with
this
Section.
1.4
The
obligations of confidentiality set forth in this Section 1
shall
bind the Executive during his employment or retention by the Company and at
all
times thereafter.
2. Obligation
Not To Compete
2.1
The
term “Restricted Period” means the period beginning on the date of this
Agreement and ending on the later of (i) the fifth anniversary of the date
of
this Agreement, or (ii) two years after the termination of his employment or
retention by the Company or Executive for any reason or for no reason and
whether or not for cause.
2.1.1During
the Restricted Period, except on behalf of the Company, Executive will not
anywhere directly or indirectly (whether through family members or other
affiliated parties or otherwise) be employed or retained by, provide financing
for, or solicit, contract or offer to provide or sell or purchase or otherwise
deal in or with (i) any product that contains fish oil or Omega 3, or (ii)
any
product or service similar to or in competition with any product or service
sold
or provided by the Company at the time of termination of his employment or
during the twelve months immediately preceding such termination, or (iii) any
product or service that is provided or sold by Lysi Ltd.
3. No-Hire.
Executive covenants that at all times during the Restricted Period, Executive
will not directly or indirectly:
3.1
solicit or hire or retain any person who was an Executive or consultant of
the
Company at any time during the then preceding two years, or
3.2
encourage or solicit any person to leave the employ of the Company.
4. Intellectual
Property.
4.1
All
inventions, software, ideas, strategies, methods, trade secrets, and associated
documentation, whether or not patentable or copyrightable, made or conceived
solely or jointly by Executive during the Executive’s employment at Iceland
Health prior to the date hereof or during the Employment Period, which relate
in
any manner to the actual or anticipated business, including research and
development, of the Company or are suggested by Executive or result from work
assigned to Executive or work performed by Executive (“Intellectual Property”),
shall be the property of the Company. In addition, Executive
agrees:
a.
|
To
promptly and fully disclose in writing to the Company all such
Intellectual Property;
|
b.
To
cooperate with the Company in all reasonable ways to protect the Company's
rights therein, including the execution of papers deemed by the Company to
be
desirable or necessary to enable the Company to apply for, secure, and maintain
patent or copyright protection thereon in the United States and in foreign
countries;
4.2
To
the extent the Company’s ownership of the Intellectual Property is ever at
issue, Executive, on behalf of Executive and Executive’s heirs and successors in
interest, does hereby irrevocably assign, free of any liens or encumbrances,
all
his worldwide rights, title and interest in and to said Intellectual Property
to
the Company, including, without limitation, any and all copyrights and all
patents of said Intellectual Property, to have and to hold unto its successors
and assigns, and this Agreement shall be proper evidence thereof.
5. Remedies.
In the
event of breach or threatened breach by Executive of any provision of this
Agreement, the Company shall be entitled to apply for relief by temporary
restraining order, temporary injunction, or permanent injunction, without
requirement of posting a bond or any other security, and to all other relief
to
which it may be entitled, including any and all monetary damages which the
Company may incur as a result of said breach, violation or threatened breach
or
violation.
6. No
Offsets.
The
validity of this Agreement and the covenants thereunder shall in no way be
affected by any valid or invalid claims or causes of action that Executive
has
or will have against the Company for any matter or thing, including without
limitation, the termination by the Company of Executive’s employment without
cause, breach by the Company of any agreement with the Company or the failure
by
the Company to pay any amount to the Executive.
7. Miscellaneous.
7.1
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York and embodies all of the understandings and obligations between
the parties with respect to the subject matter hereof. This agreement supersedes
all prior agreements entered into by the parties with respect to the subject
matter hereof. In the event of any inconsistency between this Agreement and
any
other agreement with the Executive, this Agreement shall govern and be binding.
This Agreement shall not be changed, modified or amended except in a writing
signed by both parties.
2
7.2
This
Agreement is not an employment agreement and gives no right to Executive to
be
retained for any period or any duration, or any other rights.
7.3
To
the extent any provision of this Agreement is held to be unenforceable or
invalid, the remainder of the Agreement shall be remain in full force and effect
and the Agreement shall be interpreted to give effect to the such provision
to
the maximum extent permitted by law.
7.4
No
failure or delay (in whole or in part) on the part of either party hereto to
exercise any right or remedy hereunder will impair any such right or remedy,
operate as a waiver thereof, or affect any right or remedy hereunder. All rights
and remedies hereunder are cumulative and are not exclusive of any other rights
or remedies provided hereunder or by law.
7.5
Notice. Any
and
all notices or other communications required or permitted to be given under
any
of the provisions of this Agreement shall be in writing and shall be deemed
to
have been duly given when personally delivered or when forwarded for priority
delivery by Federal Express or other recognized courier, addressed, if to the
Company, to it at its then principal offices, attn: President, and, if to the
Executive, to him at Xxxx
Xxxxxxxx, 000
Xxxx
00xx
Xxxxxx -
Xxx. 00X, Xxx Xxxx, XX 00000 (or at such other address as any party may specify
by notice to all other parties given as aforesaid).
7.6
Governing
Law; Resolution of Disputes; Service of Process. This Agreement shall in all
respects be construed according to the laws of the State of New York. Service
of
process shall be effective when given in the manner provided for notices
hereunder. The
federal and state courts sitting in the State of New York shall have exclusive
jurisdiction with respect to this Agreement. Trial by jury is
waived.
7.7
Executive acknowledges receipt of this Agreement, and that his ability to earn
a
livelihood will not be unreasonably affected hereby. He has discussed this
Agreement with his counsel.
7.8
This
Agreement may be signed by facsimile and in counterparts.
|
|
By:
___________________
Name:
Xxxx Xxxxxxxxxx
Title:
Chief Executive Officer
|
Executive
__________________
Name:
|
Date:
August 25, 2006
|
Date: August 25, 2006 |
3