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NONCOMPETITION, NONDISCLOSURE AGREEMENT
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AGREEMENT made as of January 1, 1997 by and between Augment Systems,
Inc., a Delaware corporation with a principal place of business at 0 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 (along with its affiliates, if any, "the
Company") and Xxxxx X. Xxxx, an individual residing at 00 Xxxxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Employee").
Whereas, the Company wishes to retain the continued services of
Employee upon the terms set forth in this Agreement; and
Whereas, Employee desires to continue to serve in the employ of the
Company upon the terms and conditions provided in this Agreement;
NOW, THEREFORE, for valuable consideration, including an increase in
Employee's annaul salary from $85,000 to $100,000 per year, the receipt of which
is hereby acknowledged, the Company and Employee agree as follows:
SECTION 1. NONCOMPETITION, NONDISCLOSURE AND INVENTIONS.
(a) NONCOMPETITION. During the period of his employment by the Company,
and for a period of one (1) year after the termination of such employment,
Employee agrees that he will not, directly or indirectly, alone or as a partner,
officer, director or employee of any company or business organization, or the
holder of more than 5% of the outstanding voting securities of, or ownership
interests in, any company or business organization, engage in any business
activity, in any geographic areas in which the Company is then conducting
business which is directly competitive with the business of the Company.
(b) CONFIDENTIALITY; RETURN OF CONFIDENTIAL MATERIALS. Employee
understands that his relationship with the Company and its officers and
employees is one of trust and confidence and that during the period of
employment he may acquire or may have already acquired, knowledge of, or access
to, information which relates to the business, operations or plans of the
Company which is not known to the general public (hereinafter "Confidential
Information"). Confidential Information may include, but is not limited to,
information about products, technologies, methods, designs and other
intellectual property, source code, trade secrets, know-how, manufacturing
processes, marketing plans, customers budget costs, prices, vendor lists and the
Company's financial affairs. Employee will not at any time, whether during or
after the termination of employment, reveal to any person, association or
company any Confidential Information of the Company so far as it has come or may
come to his knowledge, except as may be required in the ordinary course of
performing his duties as a employee of the Company or except as may be in the
public domain through no fault of his, and Employee will keep
secret all matters entrusted to him and shall not use or attempt to use any such
Confidential Information in any manner which may injure or cause loss or may be
reasonably expected to injure or cause loss, whether directly or indirectly, to
the Company.
Further, Employee agrees that during his engagement, he shall not make,
use or permit to be used any notes, memoranda, records, files, computer
programs, data or any other materials of any nature relating to any matter
within the scope of the business of the Company or concerning any of its
dealings or affairs otherwise than for the benefit of the Company. In addition,
Employee agrees that he shall not, after the termination of employment, use or
permit to be used, any such notes, memoranda, records, files, computer programs,
data or other materials, it being agreed that any of the foregoing shall be, and
remain, the sole and exclusive property of the Company and that immediately upon
the termination of employment, Employee shall deliver all of the foregoing, and
all copies thereof, to the Company, at its main office.
(C) ASSIGNMENT OF INVENTIONS. Employee hereby acknowledges and agrees
that the Company is the owner of all Inventions, as defined below. In order to
protect the Company's rights to such Inventions, by executing this Agreement,
Employee hereby irrevocably assigns to the Company all my right, title and
interest in and to all Inventions to the Company.
For purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, methods, techniques, technologies, devices, or
improvements in any of the foregoing, whether or not patentable or copyrightable
and whether or not reduced to practice, made or conceived by Employee (whether
solely or jointly with others) during the period of employment by the Company
which relate in any manner to the actual or demonstrably anticipated business,
work, or research and development of the Company, or result from or are
suggested by any task assigned to Employee or any work performed by him for or
on behalf of the Company.
Any discovery, process, design, method, technique, technology, device,
or improvements in any of the foregoing or other ideas, whether or not
patentable or copyrightable and whether or not reduced to practice, made or
conceived by Employee (whether solely or jointly with others) which he develops
entirely on his own time not using any of the Company's equipment, supplies,
facilities, or trade secret information ("Personal Invention") is excluded from
this Agreement provided such Personal Invention (i) does not relate to the
actual or demonstrably anticipated business, research and development of the
Company, and (ii) does not result, directly or indirectly, from any work
performed by Employee for or on behalf of the Company.
(D) DISCLOSURE OF INVENTIONS. Employee agrees that in connection with
any Invention, he will promptly disclose such Invention to the Board of
Directors of the Company in order to permit the Company to enforce its property
rights to such Invention in accordance with this Agreement.
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(E) PATENTS AND COPYRIGHTS; EXECUTION OF DOCUMENTS. Upon request,
Employee agrees to assist the Company or its nominee (at its expense) during and
at any time subsequent to employment in every reasonable way to obtain for its
own benefit patents and copyrights for Inventions in any and all countries. Such
patent and copyrights shall be and remain the sole and exclusive property of the
Company or its nominee. Employee agrees to perform such lawful acts as the
Company deems to be necessary to allow it to exercise all right, title and
interest in and to such patents and copyrights.
In connection with this Agreement, Employee agrees to execute,
acknowledge and deliver to the Company or its nominee upon request and at its
expense all documents, including assignments of title, patent or copyright
applications, assignments of such applications, assignments of patents or
copyrights upon issuance, as the Company may determine necessary or desirable to
protect the Company's or its nominee's interest in Inventions, and/or to use in
obtaining patents or copyrights in any and all countries and to vest title
thereto in the Company or its nominee to any of the foregoing.
(F) MAINTENANCE OF RECORDS. It is understood that all Personal
Inventions, if any, whether patented or unpatented, which Employee made prior to
employment by the Company, are excluded from this Agreement. To preclude any
possible uncertainty, Employee has set forth in Schedule 1 attached hereto a
complete list of all of prior Personal Inventions, including numbers of all
patents and patent applications and a brief description of all unpatented
Personal Inventions which are not the property of a previous employer. Employee
represents and covenants that the list is complete and that, if no items are on
the list, Employee have no such prior Personal Inventions.
Employee agrees to notify the Company in writing before making any
disclosure or performing any work on behalf of the Company which appears to
threaten or conflict with proprietary rights he claims in any Personal
Invention. In the event of Employee's failure to give such notice, Employee
agrees that he will make no claim against the Company with respect to any such
Personal Invention.
(G) TRADE SECRETS OF OTHERS. Employee represents that his performance
of all the terms of this Agreement and as an employee of the Company does not
and will not breach any agreement to keep confidential proprietary information,
knowledge or data acquired by him in confidence or in trust prior to his
employment by the Company, and Employee will not disclose to the Company, or
induce the Company to use, any confidential or proprietary information or
material belonging to any previous employer or others. Employee agrees not to
enter into any agreement either written or oral in conflict herewith.
(H) SOLICITATION. Employee will not at any time during the one (1) year
period following the termination of his employment with the Company solicit or
encourage any employee of the Company to terminate his or her employment in
order to work for a business which competes or intends to compete with the
Company and Employee will use his best efforts to ensure that his then employer
does not do so.
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(I) CONFLICTS. Employee further represents that his performance of all
of the terms of this Agreement and as an employee of the Company does not and
will not breach any agreement to maintain in confidence proprietary information
acquired by him in confidence or in trust prior to employment by the Company.
Employee has not entered into, and he agrees that he will not enter into, any
agreement, either written or oral, in conflict herewith.
(J) BREACH. Employee agrees that any breach of this Agreement by him
could cause irreparable damage and that in the event of such breach the Company
shall have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief to prevent the
violation of his obligations hereunder.
SECTION 2. CONFLICTING AGREEMENTS.
Employee represents and warrants that he is free to enter into this
Agreement, and that he has not made and will not make any agreements in conflict
with this Agreement.
SECTION 3. ASSIGNMENT.
(A) NONASSIGNABILITY. Neither this Agreement nor any right or interest
hereunder may be assigned by Employee, his beneficiaries or legal
representatives, without the Company's prior written consent.
(B) BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Company and any successor to or assignee of the Company,
and any such successor or assignee shall be deemed to be substituted for the
Company under the provisions of this Agreement.
SECTION 4. SEVERABILITY.
If any provision of this Agreement shall be declared invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision in circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision of this
Agreement shall be valid and be enforceable to the fullest extent permitted by
law. If any provision contained in this Agreement shall be held to be
excessively broad as to scope, activity or subject so as to be unenforceable at
law, such provision shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
SECTION 5. NOTICE.
All notices, requests, demands and communications with are or may be
given under this Agreement shall be deemed given if and when delivered in hand
or mailed by registered or certified mail to the Company or Employee at their
respective addresses as first referenced above, with a copy to Xxxxxxx X.
Xxxxxx, Esquire, Warner & Xxxxxxxxx
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LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other address as
may be designated by each party as his or its new address in writing to the
other party hereto.
SECTION 6. WAIVERS.
The failure of either party to require the performance of any term or
obligation of this Agreement, or the waiver by either party of any breach of
this Agreement, shall not prevent any subsequent enforcement of such term or
obligation or be deemed a waiver of any subsequent breach.
SECTION 7. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding of Employee and the
Company with respect to noncompetition and nondisclosure. As of the commencement
of its term, this Agreement supersedes any prior agreement or arrangement
relative to Employee's employment with the Company. No modifications or waiver
of any provisions of this Agreement shall be made unless made in writing and
signed by Employee and such other person on behalf of the Company as the Board
of Directors may designate for such purpose.
SECTION 8. GOVERNING LAW.
The interpretation, construction and application of this Agreement
shall be governed and construed in accordance with the internal laws of the
Commonwealth of Massachusetts.
SECTION 9. SURVIVAL.
Employee's obligations under this Agreement shall survive the
termination of employment regardless of the manner of such termination and shall
be binding upon Employee's heirs, executors and administrators.
SECTION 10. REMEDIES.
Each of the parties to this Agreement will be entitled to enforce his
or its rights under this Agreement specifically, to recover damages (including,
without limitation, reasonable fees and expenses of counsel) by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in his or its favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach or threatened breach
of the provisions of this Agreement and that any party may in his or its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
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SECTION 11. CAPTIONS.
The captions set forth in this Agreement are for convenience only, and
shall not be considered as part of this Agreement or as in any way limiting or
amplifying the terms and provisions hereof.
SECTION 12. COUNTERPARTS.
This Agreement may be signed in two counterparts, each of which shall
be deemed an original and both of which shall together constitute one agreement.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have signed, sealed and delivered this
Agreement as of the date first above written.
AUGMENT SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: President
Title:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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SCHEDULE 1
Personal Inventions of Xxxxx X. Xxxx
None
A-1
