INTER*ACT SYSTEMS, INCORPORATED
EMPLOYMENT, NONCOMPETITION AND NONDISCLOSURE AGREEMENT
This Employment, Noncompetition and Nondisclosure Agreement (the
"Agreement") is entered as of March 31, 1997 between INTER*ACT SYSTEMS,
INCORPORATED ("InterAct"), as employer, and ("Employee"), and
sets forth the full understanding of both parties as to certain terms and
conditions of InterAct's employment of Employee. EMPLOYEE UNDERSTANDS AND
ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS SIGNIFICANT RESTRICTIONS ON HIS OR HER
FREEDOM DURING EMPLOYMENT BY INTERACT, AND AFTER LEAVING THE EMPLOY OF INTERACT,
TO DIVULGE INFORMATION LEARNED WHILE AT INTERACT.
BACKGROUND
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InterAct continues to develop the InterAct Promotion Network (including
certain documentation), which delivers targeted, immediately useable, electronic
discounts to consumers via interactive "touch-screen" terminals located inside
the entrance of retail supermarkets. InterAct's business is highly competitive
and includes extensive use of trade secrets and other competitively sensitive
information. InterAct's research and development and other projects may also
include work with trade secrets and other proprietary or competitively sensitive
information of its manufacturers, retailers and customers. InterAct therefore
requires that each of its employees enter a nondisclosure Agreement in order to
safeguard its legitimate business and other interests.
In consideration of the employment of the Employee by InterAct, and other
good and valuable consideration (including the covenants and Agreements
contained herein), the receipt and sufficiency of which are hereby acknowledged,
InterAct and Employee hereby agree to the following terms and conditions.
TERMS AND CONDITIONS
1. Terms of employment. InterAct hereby employs Employee, and Employee
hereby accepts employment with InterAct on an "at-will" basis. Employee
acknowledges that InterAct neither guarantees nor promises Employee continued
employment for any particular length of time. Nothing contained herein is
intended to provide Employee with any expectation of or right to continued
employment for a particular period of time. The terms of Sections 2, 3, 4 and 5
shall survive the termination of employment under this Agreement regardless of
who causes termination and under what circumstances.
2. InterAct's ownership and authorship of all work and materials. Employee
and InterAct intend that InterAct shall be the owner of all work, and all
tangible and intangible materials and products, in any way produced, developed
or created by Employee as set forth below.
A. All "work for hire", as the term is defined in the copyright laws
of the United States, prepared by Employee in the course of his or her
employment with InterAct are expressly intended to be wholly owned, and all
copyrights to be held, by InterAct. To the extent that any such copyrightable
works may not, by operation of law, be works for hire, Employee hereby assigns
to InterAct ownership of all copyright rights in those works. InterAct shall
have the right to obtain and hold in its own name copyrights, registrations and
similar protection which may be available for those works. Employee agrees to
give InterAct or its designees all assistance reasonably required to perfect
those rights.
B. All discoveries, developments, ideas, improvements, innovations,
inventions, processes, programs, systems, techniques or other things, whether or
not patentable, that are made, conceived or reduced to practice by Employee,
while employed by InterAct and for six (6) months thereafter, solely or with
others, whether or not during working hours or on InterAct's premises, and that
(a) relate to InterAct's business or actual or demonstrably anticipated research
or development or a reasonable or contemplated expansion thereof, or (b) result
from any work performed by Employee for InterAct, or (c) are developed on
InterAct's time or using InterAct's equipment, supplies, facilities or trade
secret information or (d) are based up on or related to "trade secrets and other
confidential information of InterAct" (as defined in paragraph 3 below) which
Employee has had or may have access to through his or her employment with
InterAct, shall be the property of, and shall promptly be disclosed by Employee
to, InterAct. Further, Employee agrees that, at any time during or after his or
her employment with InterAct, he or she will, without further compensation but
at InterAct's sole expense, sign all papers and cooperate in all other acts
reasonably required to protect InterAct's rights in all such property, including
without limitation applying for, obtaining and enforcing patents thereon in any
and all countries. In the event that Employee is unable or unavailable or shall
refuse to sign any lawful or necessary document required in order for InterAct
to apply for and obtain a patent or patents with respect to any work performed
by Employee (including applications or renewals, extensions, divisions, or
continuations), Employee hereby irrevocably designates and appoints InterAct and
its duly authorized officers and agents as Employee's agents and
attorneys-in-fact to act for and in Employee's behalf, and in his or her place
and stead, to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of patents with
respect to such new developments with the same legal force and effect as if
executed by Employee.
C. Employee hereby irrevocably relinquishes for the benefit of
InterAct and it assigns any moral rights in any work recognized by applicable
law.
3. Trade secrets and other confidential information of InterAct. At all
times during his or her employment with InterAct and thereafter, Employee
specifically agrees that he or she will not, without InterAct's prior written
permission, in any way disclose, reveal or transfer any trade secrets or
proprietary or confidential information of InterAct or its manufacturers,
retailers and/or any party with whom InterAct contracts to any third party (that
is, to any person or entity outside InterAct). Employee further specifically
agrees that he or she will not in any way use any such trade secrets or
confidential
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information for any purpose except in the course of Employee's work for InterAct
(including for any party with whom InterAct contracts).
For purposes of this Agreement "trade secrets and other confidential
information of InterAct includes information, whether or not recorded in any
medium, and whether or not copyrighted, disclosed to or known by Employee
(including information conceived, developed, discovered or originated in whole
or in part by Employee) by virtue of his or her employment under this Agreement,
not generally known in the Business (as defined in Section 5) (or in other
businesses or industries in which InterAct may become engaged), that gives
InterAct a competitive advantage over others who do not know or have access to
such information. It includes, without limitation, concepts, data, designs,
diagrams, discoveries, documentation, graphics, ideas, inventions, know-how,
negative know-how, models, photographs, procedures, processes, research and
development, specifications, strategies and techniques; manufacturer, retailer
or customer names, lists and other information (including financial information)
related to existing and potential manufacturers, retailers and customers; flow
charts, source and object code; marketing plans, techniques and materials; price
lists and pricing policies; and financial information of InterAct or those
working for InterAct, or of InterAct's manufacturers and retailers.
"Trade secrets and other confidential information of InterAct" does not
include information: already in the public domain through no breach of this
Agreement; in Employee's possession prior to receipt from InterAct, as proven by
written records; rightfully obtained by Employee from a third party in rightful
possession of such information; or, subject to the time limitations contained in
paragraph 2.B., after termination of Employee's employment under this Agreement,
subsequently developed independently by Employee (without any reliance upon
trade secrets or other confidential information of InterAct), as proven by
written records.
Despite the foregoing restrictions, Employee may use and disclose any
information to the extent required by an order of any court or other
governmental authority, but only after InterAct or its manufacturers, retailers
or contractors, as the case may be, have been so notified and have had the
opportunity, if possible, to obtain reasonable protection for this information
in connection with its disclosure.
4. Prohibition Against Unfair Business Practices. Professional research
and development activity may be susceptible to unfair or questionable business
practices. For example, trade secrets and other confidential information can be
misappropriated and valuable documents can be copied and taken for improper
purposes. Industrial espionage is a serious concern for InterAct which depends
on sensitive technology for commercial success.
Employees engaged in research and development can be targets of, or
participants in, unfair business practices because of the special attractiveness
of the advanced technology, computer programs, product development strategies,
and business opportunities they come to know by virtue of their employment.
Employee understands
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that it would be unfair for a former employee of InterAct to recruit personnel
directly from the ranks of InterAct's own employees by using connections and
inside information previously acquired from InterAct. InterAct puts great
emphasis on selecting, training, and promoting talented individuals for
positions of significant responsibility. Employee understands that the time,
effort, and capital invested by InterAct in its work force should not be
diverted by someone operating on an inside track. In addition, Employee
understands that it would be unfair for individuals still employed by InterAct
to form and pursue a competitive business while receiving wages and other
benefits from Interact.
During employee's employment with Interact, Employee is required to
refrain from engaging in any action that might be harmful to InterAct and its
business. Employee's responsibility to promote and support InterActs business by
its very nature requires Employee to prevent InterAct from suffering injury or
hardship. The obligation is intentionally broad and general because it is
difficult to anticipate all possible circumstances, and Employee agrees to
resolve all doubts by consulting InterAct on how best to proceed. By way of
example, during Employee's employment with Interact, Employee may not solicit or
recruit any other InterAct employee to form or join another business. Except as
otherwise provided in Section 5 below, Interact cannot prohibit Employee from
terminating Employee's employment and pursuing other kinds of work, but if
Employee should decide to form or join another business Employee is required to
advise InterAct promptly, so that projects in progress and under consideration
are not needlessly disrupted and so that even the possibility that trade secrets
or other confidential information may be compromised can be avoided.
During employee's employment with Interact, if Employee learns or even
suspects that any unfair or questionable business practice may be occurring,
Employee is required to advise InterAct promptly. The obligation is
intentionally broad and general because it is difficult to anticipate all
possible circumstances, and Employee agrees to resolve all doubts by reporting
to InterAct the information that has come to Employee's attention. By way of
example, Employee should report the incident immediately if anyone who is an
employee or contractor of InterAct contacts Employee or any other InterAct
employee with an offer to form or join a new business.
5. Covenant Not to Compete. (a) Employee promises and agrees that, during
the period of his/her employment by InterAct, and for a period of one (1) year
following the termination of his/her employment with InterAct for any reason,
he/she will not (except on behalf or InterAct), directly or indirectly, (i) be
employed by, (ii) represent or render consulting or advisory services to, or
(iii) participate or be connected in the management or control of any business
that is engaged in the business of displaying and/or dispensing through
inter-active terminals (often known as "kiosks") electronic discounts, coupons,
recipes or other promotions (the "Business").
(b) It is the desire and intent of the parties that the provisions of this
Covenant Not to Compete shall be enforced to the fullest extent permitted under
law. Accordingly, if any particular portion of this Covenant Not to Compete
shall be adjudicated to be invalid or
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unenforceable, such adjudication shall apply only with respect to the operation
of that portion in the particular jurisdiction in which such adjudication is
made, and all other portions shall continue in full force and effect. In
addition, if any period of time or any geographic area set forth in this
Covenant Not to Compete is adjudicated to be unreasonably long or unreasonably
broad, then this Agreement shall be enforceable for such period of time or with
respect to such geographic area as the court in question shall find to be
reasonable.
6. Noninterference with personal relations. During Employee's employment
with InterAct and for a period of one (1) year following the termination of
Employee's employment with InterAct for any reason, Employee will not solicit,
entice or persuade any other employees of InterAct to leave the services of
InterAct.
7. Surrender of property upon termination. All property of InterAct,
including without limitation all "trade secrets and other confidential
Information of InterAct" (as defined in Section 3), computer tapes, computer
programs, data, diskettes, graphics of all description, information, materials,
notes, records, reference materials, and other documents or media shall belong
exclusively to Interact, and Employee agrees to turn over all such property in
his or her control to InterAct upon request or upon termination, for whatever
reason, of his or her employment with InterAct.
8. Employment by InterAct as sole occupation. Subject only to specific
exceptions (if any) in this Agreement, Employee agrees to devote his or her full
business time, attention, skill and effort, exclusively to the performance of
the duties that InterAct may assign. Employee may not engage in any business
activities or render any services of a business, commercial or professional
nature, whether or not for compensation, for the benefit of anyone other than
InterAct, unless InterAct has given its advance written consent. Employee
understands that it is the policy of InterAct never to allow its personnel to
work for any competitive enterprise during their employment, including after
hours, on weekends or during vacation time, even if only organizational
assistance or limited consultation is involved.
9. Employees acknowledgement of equitable remedies in event of breach.
Employee specifically acknowledges the unique nature an the value of the trade
secrets and other confidential information of InterAct to which he or she will
have access by virtue of his or her employment with InterAct, and further
acknowledges that InterAct has informed Employee that, because of that unique
nature and value, InterAct may, in the event of the Employee's breach of this
Agreement, in addition to any other remedies and damages available, seek
injunctive and other equitable relief against Employee.
10. Employee warranty of no conflict. Employee warrants that his or her
work for InterAct does and will not in any way conflict with any remaining
obligations he or she may have with any prior employer or contractor. Employee
shall not during the course of his or her employment with InterAct use for the
benefit of Interact any trade secrets or other confidential information relating
to and obtained from any prior employer. Employee
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also agrees to perform all work for InterAct in a manner that avoids even the
appearance of infringement rights of any third party.
11. Related parties. This Agreement shall inure to the benefit of, and be
binding upon, InterAct and its subsidiaries and its affiliates, together with
their successors and assigns, and Employee, together with Employee's heirs,
executors, administrators, personal representatives, successors and assigns.
12. Severability. In the event that any of the provisions of this
Agreement are held invalid or otherwise unenforceable in any respect, it is the
parties' express intent that such invalidity or unenforceability to the maximum
practicable extent shall not affect any other provision, and that this Agreement
shall be construed and enforced as an integrated whole without the invalid or
unenforceable provision. The covenants in this Agreement shall be construed as
covenants independent of one another and as obligations distinct from any other
contract between Employee and InterAct. Any claim that Employee may have against
InterAct shall not constitute a defense of InterAct's enforcement of this
Agreement.
13. Assignment, delegation and subcontracting. This Agreement is for
unique personal services and may not be assigned, delegated or subcontracted by
Employee. InterAct reserves the right to assign or otherwise dispose of its
rights under this Agreement in its sole discretion.
14. Amendment and waiver. This Agreement may not be amended except in a
writing signed by both parties. No waiver of any provision or breach of this
Agreement shall be deemed a waiver of any other provision or any later breach,
and no waiver shall in any event be valid unless contained in a writing signed
by the waiving party.
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15. Interpretation; Governing Law. This Agreement contains the entire
understanding of the parties with respect to this subject matter and supersedes
all prior agreements between them with respect thereto except for that certain
Offer Letter dated March 14, 1997 and signed by Employee on 3/15/97 and
Employee's letter to Company dated March 15, 1997 and signed by Xxxxxxx X.
Xxxxxxx on 3/16/97. The headings in this Agreement are for convenience only and
shall not under any circumstances be used in any way to construe the Agreement.
Wherever possible, the word "or" shall be given both its conjunctive and
disjunctive meanings. This Agreement shall be governed by the laws of the
State of Connecticut.
IN WITNESS WHEREOF, the parties have signed this Agreement effective as of
the date first written above.
INTER*ACT SYSTEMS, EMPLOYEE
INCORPORATED
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Signature Signature
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Typed Name Typed Name
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Title
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