Exhibit 10(k)
NONCOMPETITION AGREEMENT
This Agreement is entered into between CheckFree Services Corporation,
its parents, subsidiaries, affiliates, successors and assigns (collectively
referred to as "the Company"), and Xxxx X. Xxxxxxx ("Associate"), effective this
February 11, 2003 (Date). This agreement is consideration for and a condition of
Associate's commencing employment with the Company.
1. Definitions. For the purposes of this Agreement, the following
definitions shall apply:
a. "Trade Secrets" shall mean information not generally known about the
Company's business which the Company has made reasonable efforts to maintain its
secrecy or confidentiality and from which the Company derives economic value
from the fact that the information is not generally known to other persons who
can obtain economic value from its disclosure or use. Trade Secrets include, but
are not limited to, technical or non-technical data, compilations, programs and
methods, techniques, drawings, processes, financial data, lists of actual
customers and potential customers, customer route books, cards or lists
containing the names, addresses, buying habits and business locations of past,
present and prospective customers, sales reports, price lists, product formulae,
methods and procedures relating to services.
b. "Confidential Information" means other business information of the
Company, its clients and/or customers, not generally known to the public and
which the Company desires and makes reasonable efforts to keep confidential.
c. "Products" shall mean those products or services of the Company
about which Associate has been exposed to Confidential Information during the
twelve-month period prior to the termination of employment, including products
that support or facilitate electronic billing or payment or both. Associate
agrees that the Products constitute Trade Secrets or Confidential Information of
the Company. Associate acknowledges that he has been involved with, or has
become familiar with each of the Products during the last twelve months of his
employment.
d. "Competing Business" shall mean any person or entity which sells,
licenses or otherwise distributes software or offers processing services which
perform the same or substantially the same functions as the Products.
Specifically, and without restricting the generality of the foregoing, such
companies include, MasterCard, Metavante, and Princeton.
e. "Territory" shall mean the United States of America. The parties
hereto agree that the Company serves customers throughout the Territory and
Associate's duties and responsibilities hereunder extend to customers throughout
the Territory. Associate acknowledges that the Company and Associate may change
the Territory at any time by either reflecting any such change on an Amended
Confidentiality and Non-competition Agreement, executed by Associate, or by
Associate's acceptance of an assignment to such new Territory.
2. Confidential Information. The parties agree that Associate will gain
detailed and comprehensive knowledge of the Company's Trade Secrets and
Confidential Information.
3. Agreement Not To Compete. Associate covenants and agrees that during
employment by the Company and for a period of one year after termination of such
employment for any reason, Associate will not, without prior written consent of
the Company, directly or indirectly, within the Territory, on behalf of himself
or any Competing Business, engage in any business in which Associate provides
services which are the same or substantially similar to Associate's duties
during the last twelve months of his employment with the Company. Associate
acknowledges that nothing in this paragraph prohibits him from engaging in his
entire business, trade or profession but that this paragraph only narrowly
restricts him from engaging in a small or limited segment of the computer
software industry.
4. Associate Warranty. Associate warrants that his employment with the
Company does not constitute a breach of any agreement between Associate and any
other party, nor will it violate any other party's proprietary rights.
5. Miscellaneous.
a. Remedies. Associate acknowledges and agrees that by virtue of the
duties and responsibilities attendant to his employment by the Company and the
special knowledge of the Company's affairs, business, clients and operations
that he has and will have as a consequence of such employment, irreparable loss
and damage will be suffered by the Company if Associate should breach or violate
any of the covenants and agreements contained herein. Associate further
acknowledges and agrees that each of such covenants is reasonably necessary to
protect and preserve the Company Business and the assets of the Company.
Associate therefore agrees and consents that, in addition to any other remedies
available to the Company, the Company shall be entitled to an injunction to
prevent a breach or contemplated breach by Associate of any of the covenants or
agreements contained in such paragraphs. Nothing contained in this Agreement
shall limit, abridge or modify the rights of the parties under applicable trade
secret, trademark, copyright or patent law or under the laws of unfair
competition.
b. Attorneys Fees. Associate agrees and acknowledges that if the
Company successfully enforces any right under this Agreement through legal
process of any kind, then the Company shall be entitled to recover from
Associate its costs of such enforcement, including reasonable attorneys fees.
c. Binding Agreement. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. This Agreement is a personal services
Agreement and may not be assigned in whole or in part by Associate. The
covenants of Associate contained in this Agreement shall be binding upon the
heirs and legal representatives of Associate and shall survive the termination
of this Agreement.
d. Severability. The provisions of this Agreement are severable and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable in whole or in part,
the remaining provisions, and any partial enforceable provision to the extent
enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
Should any court of competent jurisdiction determine that the public policy of
such jurisdiction requires a more limited restriction is geographic area,
duration, nature of restricted activity or any other aspect of this Agreement,
it would be in furtherance of the intentions of the parties hereto for the court
to so interpret and construe the terms of this Agreement in the manner necessary
to render its terms enforceable.
e. Waiver. The waiver by one party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach of the same or any other provision by the other party. The
failure of a party at any time to require performance of any provision hereof
shall in no manner affect its right at a later time to enforce the same.
f. Entire Agreement. This Agreement sets forth the entire agreement of
the parties and supersedes all prior agreements and understandings between the
parties relating to its subject matter.
g. Modifications. This Agreement may be amended, modified or superseded
only by a writing signed by the party against whom enforcement is sought.
Associate acknowledges and understands that the Company may request modification
or re-execution of this Agreement or execution of a similar agreement in the
future, for new consideration, but no such request, or absence of such request
of Associate, affects the validity or term of the obligations assumed under this
Agreement.
h. Gender. Any reference to the male gender in this Agreement is
intended to apply equally and impartially to both males and females alike.
i. Captions and Headings. Captions and headings used herein are for
convenience only and are not a part of this Agreement and shall not be used in
construing this Agreement.
j. Consent to Jurisdiction. Associate and the Company agree that any
legal action or proceedings with respect to this Agreement may be initiated in
the courts of the State of Georgia and the Company and Associate hereby agree to
subject themselves to the jurisdiction of the federal and state courts of
Georgia with respect to any such legal action or proceedings.
k. Survival. Notwithstanding the expiration or termination of this
Agreement by any party for any reason whatsoever, the respect to rights and
obligations set forth herein will remain in full force and effect, until they
have been fully exercised and discharged.
l. At-will Employment. Nothing in this Agreement shall alter
Associate's status as an at-will employee or create any right to continued
employment.
IN WITNESS WHEREOF, the parties have executed this Agreement knowingly and
voluntarily on the respective date first set forth above.
ASSOCIATE: CheckFree Services Corporation
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
_____________________________ ____________________________________
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Its: Senior Vice President, Human Resources
______________________________________
Date: 2/11/03 Date: 2/11/03
______________________ ____________________________________
