EXHIBIT 10.40
NONCOMPETITION AGREEMENT
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This NONCOMPETITION AGREEMENT (the "Agreement"), dated the [_____] day of
[____________, 2000] (the "Effective Date") is made by and between Inventa
Corporation, a California corporation ("Inventa"), XTend-Tech, Inc., a Delaware
Corporation ("XTend") and ____________ (the "Employee").
BACKGROUND
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This Agreement is entered into in connection with and is a condition to the
Agreement dated as of January __, 2000 (the "Agreement") between Inventa
Corporation and XTend, pursuant to which Inventa has acquired all outstanding
shares of XTend including all shares held by Employee on the date hereof ("the
Acquisition").
Employee is a stockholder and key employee of XTend and has been actively
involved in the development and/or marketing of XTend's products. Inventa
intends to continue the business of XTend after the Effective Date and integrate
such business into its ongoing business. To preserve and protect the assets of
XTend, including XTend's goodwill, customers and trade secrets of which Employee
has, and will, in his role as an employee of XTend or Inventa, have knowledge,
and to preserve and protect XTend's and Inventa's goodwill and business
interests going forward, and in consideration for Inventa's undertaking the
Acquisition, Employee has agreed to enter into this Agreement.
Employee and Inventa believe the limitations as to time, geographical area
and scope of activity contained in this Agreement are reasonably necessary to,
and no greater than that required to, protect the goodwill and business
interests purchased by Inventa.
1. Noncompete. During the Restricted Period, Employee shall not either
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for himself or on behalf of any other person, partnership, firm, association or
corporation in any territory in which Inventa is actively engaged in business
(a) undertake any business which is in competition with any business of XTend or
Inventa as operated by Inventa as of the date of termination, (b) act as an
employee, agent, advisor or consultant of any then existing competitor of XTend
or Inventa with respect to any business which had been operated by XTend
immediately prior to the date of termination, (c) accept employment or perform
services for any of Inventa's competitors with respect to any business operated
by XTend immediately prior to the date of termination, (d) take any action to or
do anything reasonably intended to divert business from Inventa or influence or
attempt to influence any existing customers of Inventa to cease doing business
with Inventa or to alter its then existing business relationship with Inventa,
in each case with respect to any business operated by XTend immediately prior to
the date of termination, (e) hire, or solicit for purposes of hiring any
employees of XTend or Inventa, or (f) take any action or do anything reasonably
intended to influence any existing suppliers of Inventa to cease doing business
with Inventa or to alter its then existing business relationship with Inventa,
in each case with respect to any business operated by XTend immediately prior to
the date of termination. As used herein, "Restricted Period" means (i) two (2)
years following the termination by the Company of Employee's employment or
service
with Inventa for cause, (ii) one (1) year following the termination of
Employee's employment or service with Inventa by Inventa without cause, or by
Employee for "good reason", or (iii) the period ending two (2) years from the
date Employee voluntarily terminates his employment or service with Inventa
without good reason, whichever of (i) through (iii) is applicable.
2. Geographic Area. The geographical areas in which the restrictions
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provided for in this Agreement apply include all cities, counties and states of
the United States, and all other countries, in which XTend or Inventa or any of
its subsidiaries has engaged in licensing or sales or otherwise conducted
business or selling or licensing efforts at any time during the two years prior
to the Effective Date or during the term of this Agreement. The agreement not to
compete in each such geographic subdivision is a separate and severable
agreement from all such other agreements. Employee acknowledges that the scope
and period of restrictions and the geographical area to which the restrictions
imposed in this Section applies are fair and reasonable and are reasonably
required for the protection of Inventa and that this Agreement accurately
describes the business to which the restrictions are intended to apply.
3. Severability. The parties intend that the covenants contained in this
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Agreement shall be construed as a series of separate covenants, one for each
county of each state of the United States of America, and each nation. Except
for geographic coverage, each such separate covenant shall be deemed identical
in terms of the covenants contained in this Agreement. If, in any judicial
proceeding, a court shall refuse to enforce any of the separate covenants (or
any part thereof) deemed included in this Agreement, then such unenforceable
covenant (or such part) shall be deemed eliminated from this Agreement for the
purpose of those proceedings to the extent necessary to permit the remaining
separate covenants (or portions thereof) to be enforced. In the event that the
provisions of this Agreement should ever be deemed to exceed the time or
geographic limitations, or the scope of these covenants, as permitted by
applicable law, then such provisions shall be reformed to the maximum time or
geographic limitations, as the case may be, permitted by applicable laws.
4. Injunctions. Employee acknowledges that any breach of the covenants of
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this Agreement may result in immediate and irreparable injury to Inventa and,
accordingly, consents to the application of such injunctive relief and such
other equitable remedies for the benefit of Inventa as a court of competent
jurisdiction may deem appropriate in the event such a breach occurs or is
threatened. The foregoing remedies will be in addition to all other legal
remedies to which Inventa may be entitled hereunder, including, without
limitation, monetary damages.
5. Miscellaneous.
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(a) Notices. Any and all notices permitted or required to be given
under this Agreement must be in writing. Notices will be deemed given (i) when
personally received or when sent by facsimile transmission (to the receiving
party's facsimile number), (ii) on the first business day after having been sent
by commercial overnight courier with written verification of receipt, or (iii)
on the third business day after having been sent by registered or certified mail
from a location on the United States mainland, return receipt requested, postage
prepaid, whichever occurs first, at the address set forth below or at any new
address, notice of which will have been given in accordance with this Section:
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If to Inventa: Inventa Corp.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: Chief Executive Officer
With a simultaneous copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. X'Xxxxxxx, Esq.
If to Employee, at Employee's address in the personnel records of Inventa.
With a simultaneous copy to: Xxxxx Xxxxxx Xxxxx Tischman Xxxxxxx
& Gross, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
(b) Amendments. This Agreement contains the entire agreement and
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supersedes and replaces all prior agreements between Inventa and Employee or
XTend and Employee concerning the subject matter hereof. This Agreement may not
be changed or modified in whole or in part except by a writing signed by the
party against whom enforcement of the change or modification is sought.
(c) Successors and Assigns. This Agreement will not be assignable by
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Employee the rights and obligations of Inventa and XTend under this Agreement
may be assigned to a corporation which becomes the successor to such party as
the result of a merger or other corporate reorganization and which continues the
business of Inventa or to any other subsidiary of Inventa.
(d) Governing Law. This Agreement will be governed by and interpreted
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according to the substantive laws of the State of New Jersey without regard to
such state's conflicts law, with exclusive jurisdiction in New Jersey, venue in
Essex County (State Court) or Newark (Federal Court).
(e) No Waiver. The failure of either party to insist on strict
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compliance with any of the terms of this Agreement in any instance or instances
will not be deemed to be a waiver of any term of this Agreement or of that
party's right to require strict compliance with the terms of this Agreement in
any other instance.
(f) Attorneys Fees. If any litigation or any other proceeding is
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commenced in connection with or related to this Agreement, the losing party
shall pay the expenses, including but not limited to, the reasonable attorneys'
fees and expenses, and costs, including costs of attorney travel of the
prevailing party. The court shall be entitled to prorate said fees and expenses
between the parties in the event that a suit or proceeding is successful only in
part.
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(g) Submission to Jurisdiction. Each of the Parties submits to the
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jurisdiction of any state or federal court sitting in Essex County, New Jersey,
in any action or proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto. Each
Party agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law or at equity.
(h) Counterparts. This Agreement may be executed in counterparts,
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which when taken together will constitute one instrument. Any copy of this
Agreement with the original signatures of all parties appended will constitute
an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
INVENTA CORPORATION EMPLOYEE
By:____________________________ _________________________________
(Signature)
Title:_________________________ _________________________________
(Print Name)
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Signature Page to Non-Competition Agreement
