Exhibit 10.15
FORM OF AGREEMENT RE: CONFIDENTIALITY,
ASSIGNMENT OF INVENTIONS, AND NON-COMPETITION
This Agreement is made as of _____________ between RDO Equipment Co. (the
"Company") (which, for purposes of this Agreement includes any subsidiary of the
Company) and ____________, who is an employee of the Company (the "Employee").
WHEREAS, the Company currently is engaged in the selling, servicing and
renting of industrial and agricultural equipment throughout the United States;
and
WHEREAS, the Company has in place a stock incentive plan which provides for
the granting of options to acquire shares of the Company's Class A Common Stock;
and
WHEREAS, the Company desires to grant a stock option to Employee, subject
to the express condition that Employee execute and deliver to the Company this
Agreement; and
WHEREAS, Employee has reviewed this Agreement and understands its terms and
conditions, and in consideration of a stock option grant desires to execute and
deliver to the Company this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do agree as
follows:
1. INVENTIONS.
(a) "Inventions", as used in this Agreement, means any discoveries,
improvements and ideas (whether or not they are in writing or reduced
to practice) or works of authorship (whether or not they can be
patented or copyrighted) that the Employee makes, authors, or
conceives (either alone or with others) and that:
(1) concern directly the Company's business or the Company's present
or demonstrably anticipated future business or development;
(2) result from any work the Employee performs for the Company;
(3) use the Company's equipment, supplies, facilities, or trade
secret information; or
(4) the Employee develops during the time the Employee is performing
employment duties for the Company.
(b) The Employee agrees that all Inventions made by the Employee during or
within six (6) months after the term of this Agreement will be the
Company's sole and exclusive property. The Employee will, with
respect to any Invention:
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(1) keep current, accurate and complete records, which will belong to
the Company and be kept and stored on the Company's premises
while the Employee is employed by the Company;
(2) promptly and fully disclose the existence and describe the nature
of the Invention to the Company in writing (and without request);
(3) assign (and the Employee does hereby assign) to the Company all
of his rights to the Invention, any application Employee makes
for patents or copyrights in any country, and any patents or
copyrights granted to Employee in any country; and
(4) acknowledge and deliver promptly to the Company any written
instruments, and perform any other acts necessary in the
Company's opinion to preserve property rights in the Invention
against forfeiture, abandonment or loss and to obtain and
maintain letters, patents and/or copyrights on the Invention and
to vest the entire right and title to the Invention in the
Company.
The requirements of this Agreement do not apply to an Invention for which
no equipment, supplies, facility or trade secret information of the Company
was used and which was developed entirely on the Employee's own time, and
(1) which does not relate directly to the Company's business or to the
Company's actual or demonstrably anticipated business or development, or
(2) which does not result from any work the Employee performed for the
Company. Except as previously disclosed to the Company in writing, the
Employee does not have, and will not assert, any claims to or rights under
any Inventions as having been made, conceived, authored or acquired by the
Employee prior to his employment by the Company. With respect to any
obligations performed by the Employee under this Agreement following
termination of employment, the Company will pay the Employee reasonable
hourly compensation and will pay or reimburse all reasonable out-of-pocket
expenses.
(c) Employee will sign and execute all instruments of assignment and other
papers to evidence the assignment of Employee's entire right, title
and interest in such inventions, improvements, discoveries, software,
writings or other works of authorship to the Company, at the request
and the expense of the Company, and Employee will do all acts and sign
all instruments of assignment and other papers the Company may
reasonably request relating to applications for patents, copyrights,
and the enforcement and protection thereof. If the Employee is
needed, at any time, to give testimony, evidence, or opinions in any
litigation or proceeding involving any patents or copyrights or
applications for patents or copyrights, both domestic and foreign,
relating to inventions, improvements, discoveries, software, writings
or other works of authorship conceived, developed or reduced to
practice by the Employee, the Employee agrees to do so, and if the
Employee leaves the employ of the Company, the Company will pay the
Employee at a rate mutually agreeable to the Employee and the Company,
plus reasonable traveling or other expenses.
(d) The obligations of this Section 1 will survive the expiration or
termination of this Agreement.
2. CONFIDENTIAL INFORMATION.
(a) "Confidential Information", as used in this Agreement, means
information or material which is not generally available to or used by
others, or the utility or value of which is not generally
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known or recognized as standard practice, whether or not the
underlying details are in the public domain, including:
(1) information or material relating to the Company, and its
businesses as conducted or anticipated to be conducted, business
plans, marketing or sales plans, operations, past, current or
anticipated software, products or services, customers or
prospective customers, or development, purchasing, accounting, or
marketing activities;
(2) information or material relating to the Company's inventions,
improvements, discoveries, "know-how," technological
developments, or unpublished writings or other works of
authorship, or to the materials, apparatus, processes, formulae,
plans or methods used in the development, or marketing of the
Company's products or services;
(3) information which when received is marked as "proprietary,"
"private," or "confidential";
(4) trade secrets; and
(5) any similar information of the type described above which the
Company obtained from another party and which the Company treats
as or designates as being proprietary, private or confidential,
whether or not owned or developed by the Company.
Notwithstanding the foregoing, "Confidential Information" does
not include any information which is properly published or in the public
domain; provided, however, that information which is published by or with
the aid of the Employee outside the scope of employment or contrary to the
requirements of this Agreement will not be considered to have been properly
published, and therefore will not be in the public domain for purposes of
this Agreement.
(b) The Employee will never, either during or after the Employee's
employment by the Company, use Confidential Information for any
purpose other than the business of the Company or publish or disclose
it to any person who is not also an employee of the Company subject to
a confidentiality agreement with the Company. When the Employee's
employment with the Company ends, the Employee will promptly deliver
to the Company all records and any compositions, articles, devices,
apparatus and other items that disclose, describe or embody
Confidential Information, including all copies, reproductions and
specimens of the Confidential Information in the Employee's
possession, regardless of who prepared them, and will promptly deliver
any other property of the Company in the Employee's possession,
whether or not Confidential Information.
3. NON-COMPETITION.
(a) During the period Employee is employed by the Company and for a
further period of two (2) years after termination of employment with
the Company for any reason, Employee will not, directly or indirectly,
either for Employee's own benefit or for the benefit of any other
person, firm or corporation whatsoever, other than the Company, (i)
directly engage in any commercial activity that competes with the
Company in the geographic areas where the Company has conducted its
business during the three years before the Employee's employment with
the Company ends, (ii) serve any of the then-existing clients or
customers of the Company, any clients or customers that have had a
relationship with the Company during the preceding twelve (12) months,
or any potential clients or customers that were solicited by the
Company
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during the preceding twelve (12) months, (iii) in any way interfere or
attempt to interfere with the Company's relationships with any of its
current or potential customers, or (iv) employ or attempt to employ
any of the Company's then employees on behalf of any other entity
competing with the Company. Employee acknowledges that if Employee
breaches this covenant, the Company will be irreparably and
immeasurably injured. Therefore, Employee agrees that in addition to
any other remedies available to the Company, the Company may apply to
a court of competent jurisdiction for a temporary and/or permanent
injunction and that such court may grant such injunction to restrain
and prohibit such breach by Employee. Notwithstanding the foregoing,
it is understood that the restrictions contained in this Section 3
will cease to be applicable to any activity of the Employee from and
after such time as the Company (i) will have ceased all business
activities for a period of sixty (60) days or (ii) will have made a
decision through the Board of Directors not to continue, or will have
ceased for a period of sixty (60) days, the business activities with
which such activity of Employee would be competitive.
(b) In the event Employee's employment terminates for any reason, no
additional compensation will be paid for this non-competition
obligation.
(c) The obligations of this Section 3 will survive the expiration or
termination of this Agreement.
4. MISCELLANEOUS.
(a) CONFLICTS OF INTEREST. The Employee agrees that Employee will not,
directly or indirectly, transact business with the Company personally,
or as an agent, owner, partner or shareholder of any other entity;
provided, however, that any such transaction may be entered into if
approved by the Company's Board of Directors in accordance with its
policies.
(b) NO ADEQUATE REMEDY. The Employee understands that if the Employee
fails to fulfill the Employee's obligations under this Agreement the
damages to the Company would be very difficult to determine.
Therefore, in addition to any other rights or remedies available to
the Company at law, in equity, or by statute, the Employee hereby
consents to the specific enforcement of this Agreement by the Company
through an injunction or restraining order issued by an appropriate
court.
(c) SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to
the benefit of the Company's successors and assigns, all of which are
included in the term the "Company" as it is used in this Agreement;
provided, however, that the Company may assign this Agreement only in
connection with a merger, consolidation, assignment, sale or other
disposition of substantially all of its assets or business.
(d) MODIFICATION. This Agreement may be modified or amended only by a
written statement signed by both the Company and the Employee.
(e) GOVERNING LAW. It is the intention of both parties that the terms of
this Agreement be strictly enforced and be governed by the law of the
Company's state of incorporation (Delaware), corporate headquarters
(North Dakota), or the Employee's residence, whichever such law would
enforce the terms of this Agreement to the greatest extent. Any legal
proceeding, regardless of the governing law, related to this Agreement
will be brought in an appropriate
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North Dakota court, and both the Company and the Employee hereby
consent to the exclusive jurisdiction of that court for this purpose.
(f) CONSTRUCTION. Wherever possible, each provision of this Agreement
will be interpreted so that it is valid under the applicable law. If
any provision of this Agreement is to any extent invalid under the
applicable law, that provision will still be effective to the extent
it remains valid. The remainder of this Agreement also will continue
to be valid, and the entire Agreement will continue to be valid in
other jurisdictions.
(g) WAIVERS. No failure or delay by either the Company or the Employee in
exercising any right or remedy under this Agreement will waive any
provision of the Agreement. Nor will any single or partial exercise
by either the Company or the Employee of any right or remedy under
this Agreement preclude either of them from otherwise or further
exercising these rights or remedies, or any other rights or remedies
granted by any law or any related document.
(h) CAPTIONS. The headings in this Agreement are for convenience only and
do not affect this Agreement's interpretation.
(i) ENTIRE AGREEMENT. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings and
understandings between the parties concerning the matters in this
Agreement, including without limitation any policy or personnel
manuals of the Company.
(j) NOTICES. All notices and other communications required or permitted
under this Agreement will be in writing and will be hand delivered or
sent by registered or certified first class mail, postage prepaid, and
will be effective upon delivery if hand delivered, or three (3) days
after mailing if mailed to the address stated below. These addresses
may be changed at any time by like notice.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date first written above.
RDO Equipment Co.
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxx, XX 00000
By
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Its
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EMPLOYEE
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