Exhibit 10.31
FOUNDERS
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
THIS AGREEMENT is between FieldWorks, Inc., a Minnesota corporation (the
"Company") and __________________, a resident of Minnesota (the "Employee").
DEFINITIONS:
A. "Company" means FieldWorks, Inc., and any existing or future subsidiaries,
owned or controlled, directly or indirectly, by FieldWorks, Inc.
B. "Confidential Information" means information of or about the Company, its
products, services or customers which is not generally known to persons
outside the Company. Confidential Information includes information relating
to the Company's products, processes, research, development, manufacture,
purchasing, accounting, marketing, merchandising, selling, servicing,
customers, finance and business systems.
C. "Conflicting Product" means any product, process, system or service, in
existence or under development, which is similar to or competes with a
product, process, system or service upon which Employee shall have worked
(in either a sales or a non-sales capacity) during the three (3) years
prior to the termination of the Employee's employment with the Company, or
about which the Employee acquires Confidential Information.
D. "Conflicting Organization" means any person or organization which is
engaged in or about to become engaged in, research, development,
production, marketing, selling or servicing related to a Conflicting
Product.
E. "Good Cause" means: (a) any failure to carry out a reasonable directive of
the Company, after receipt of written notice thereof from the Board of
Directors of the Company and a reasonable opportunity (not to exceed five
business days) to so perform such directive; (b) any act of dishonesty that
causes or can reasonably be expected to cause harm to the Company; (c) any
gross or persistent neglect in performing the Employee's job duties, after
receipt of written notice thereof from the Board of Directors of the
Company and a reasonable opportunity (not to exceed five business days) to
remedy such neglect and to perform his job duties; or (d) death or
disability of Employee.
EMPLOYEE IS EMPLOYED BY THE COMPANY IN A SPECIAL CAPACITY IN WHICH EMPLOYEE HAS
RECEIVED AND CONTRIBUTED, AND MAY RECEIVE OR CONTRIBUTE, TO CONFIDENTIAL
INFORMATION; AND EMPLOYEE DESIRES TO OBTAIN THE RIGHT TO RECEIVE THE BENEFITS
DESCRIBED IN SECTION 2B BELOW. IN CONSIDERATION OF THE GRANT OF SUCH RIGHT TO
RECEIVE THE BENEFITS DESCRIBED IN SECTION 2B BELOW, AND IN CONSIDERATION OF
BEING GIVEN ACCESS TO CONFIDENTIAL INFORMATION, ALL OF WHICH CONSIDERATION
EMPLOYEE EXPRESSLY ACKNOWLEDGES IS VALUABLE TO EMPLOYEE, EMPLOYEE AGREES THAT:
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1. NON-DISCLOSURE. Any Confidential Information received as a result of the
Employee's employment with the Company shall be the property of the
Company. Except as required in connection with the Employee's duties to the
Company, the Employee shall not, either during the Employee's employment
with the Company or at any time thereafter, use or disclose any
Confidential Information.
2. TERMINATION.
A. Upon termination of the Employee's employment with the Company (for
any reason or by either the Company or the Employee), all Company
property, records, equipment and any items which disclose or contain
Confidential Information, including all copies, shall be left with the
Company.
B. Upon any termination of the Employee's employment by the Company
without Good Cause or upon any voluntary resignation of the Employee
after the six month anniversary of the date hereof, Employee shall be
entitled to continue to receive his base salary (at the level in
existence immediately prior to such termination) for a period of
twelve (12) months after such termination, subject to Employee's
compliance with the provisions of this Agreement. If Employee fails to
comply with the provisions of this Agreement following termination
without Good Cause, the Company shall not be obligated to make any
further payments under this Section 2B, Employee shall be obligated to
return any payments under this Section 2B previously received, and the
Company shall be entitled to all other remedies available in law or
equity, including injunctive relief against Employee as described in
Section 10 below.
C. If the Employee voluntarily resigns his employment with the Company
prior to the six month anniversary of the date hereof or if the
Company terminates the Employee's employment for Good Cause, Employee
shall not be entitled to any further compensation for periods after
the date of such resignation or termination.
3. NON-COMPETE. For a period of twelve (12) months after termination of the
Employee's employment with the Company (whether as a result of resignation,
termination by the Company for Good Cause or termination by the Company
without Good Cause): (i) the Employee will immediately inform the Company
of any new employment or business association which may conflict, or
reasonably might in the future conflict, with the Employee's obligations
under this Agreement; (ii) the Employee will inform such new employer or
business associate of this Agreement and provide the employer or associate
with a copy of this Agreement; and (iii) the Employee will not, directly or
indirectly, either as an employee, proprietor, partner, or agent:
A. Sell or solicit orders for any Conflicting Product to or from any
customer or client whom, within the three (3) year period immediately
preceding the termination of the Employee's employment with the
Company, the Employee solicited or serviced or in connection with whom
the Employee managed or supervised the Company's solicitation or
servicing.
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B. Sell or solicit orders for any Conflicting Product in any territory in
which, within the three (3) year period immediately preceding
termination of the Employee's employment with the Company, the
Employee was working or which the Employee managed or supervised for
the Company.
C. Manage, operate, or render service, as an employee or otherwise, to
any Conflicting Organization anywhere within the territory in which,
within the three (3) year period immediately preceding the Employee's
termination of the Employee's employment with the Company, the
Employee was working or which the Employee managed or supervised for
the Company.
D. Induce, either directly or indirectly, any employee, agent,
independent contractor, supplier, customer, or any other person or
organization to terminate or alter its relationship with the Company.
4. BINDING EFFECT. All of the Employee's obligations under this Agreement
except for Section 3 shall be binding upon the Employee's heirs and legal
representatives.
5. SEVERABILITY. The Employee agrees that if any provision of this Agreement
or part thereof is held invalid, illegal or unenforceable, such provision
or part thereof shall be deleted from this Agreement, or, if possible,
narrowed to the achieve the objective of this Agreement to the maximum
extent allowed by law, and the enforceability of the remainder of this
Agreement shall be unaffected.
6. ENFORCEMENT. The Employee agrees that in the event that the provisions set
forth in Sections 2 and/or 3 of this Agreement are determined in any court
proceedings to be overboard or unreasonably restrictive in any respect,
then these provisions shall nevertheless be enforced to the extent
determined by the court or other adjudicator to be reasonable.
7. GOVERNING LAW. This Agreement shall in all aspects be governed by the laws
of the State of Minnesota.
8. AMENDMENTS. The parties agree that no modification of the Agreement may be
made except by means of a written agreement or memorandum signed by the
parties.
9. TERMINATION. This Agreement is not an employment agreement. The Employee
understands that either the Company or Employee may terminate the
Employee's employment at any time, for any reason, with or without cause or
notice. In addition, this Agreement may be terminated (a) by Employee if
the Securities Purchase Agreement dated on or about the date hereof between
the Company and Industrial-Works Holding Corp. is terminated and the
closing of the transactions contemplated thereby does not occur, or (b) by
the Company at any time after December 31, 2000.
10. INJUNCTIVE RELIEF. The Employee acknowledges that immediate and irreparable
harm will result to the Company in the event the Employee breaches Sections
2 or 3 of this Agreement and that it would be difficult to compensate the
Company fully for damages
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incurred for any violation of those provisions. The Employee agrees that
the Company shall be entitled to temporary and permanent injunctive relief
if the Employee breaches this Agreement. The Company's right to obtain
injunctive relief will not diminish in any way the right of the Company to
claim and recover damages, in addition to injunctive relief.
11. ACCEPTANCE. The Employee agrees that this Agreement shall become effective
upon acceptance and execution of it by the Company.
Dated:
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Employee
Accepted for the Company
By:
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Its:
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