EXHIBIT 10.2
PROGINET CORPORATION
CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is made and entered into this __ day of (month, year), by and
between PROGINET CORPORATION, a Delaware corporation ("PROGINET") and
___________ residing at _________("Employee").
BACKGROUND
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PROGINET is in the business of conceiving, acquiring, developing,
commercializing, marketing, and selling and/or licensing computer software
programs and providing services to facilitate and enhance the use of such
programs by its customers.
As an employee of PROGINET, PROGINET will disclose to Employee considerable
confidential, proprietary, and trade secret information relating to the
developments, products, markets, and customers of PROGINET, all of which were
obtained at great effort and expense to PROGINET;
PROGINET will provide training to the Employee relating to the products,
markets, and customers of PROGINET. Such training will include the disclosure to
the Employee of confidential, proprietary, and trade secret information of
PROGINET and its customers, and suppliers and will make the Employee extremely
valuable to competitors of PROGINET; and
As a condition of Employee's acceptance of employment with PROGINET, Employee
agrees to the non-competition and confidentiality covenants contained herein,
and recognizes that such covenants are essential to PROGINET's legitimate
business interests.
NOW, THEREFORE, in consideration of these premises and the mutual covenants and
promises contained herein and of the considerations provided to Employee as an
employee of PROGINET, and with the intent to be legally bound hereby, the
parties agree as follows:
1. PROTECTION OF CONFIDENTIAL INFORMATION; RESTRICTIONS ON ACTIVITIES.
A. Employee recognizes and acknowledges that he or she will
perform unique services for PROGINET as assigned from time to
time by PROGINET. While performing such services, PROGINET
will provide Employee with, or Employee will have access to
confidential, proprietary, and trade secret information of
PROGINET, all of which were obtained by PROGINET at great
effort and expense. Such information must be maintained in
confidence by Employee to protect PROGINET's legitimate
interests in its investments and its business. Employee
acknowledges that these restrictions are required for the
reasonable protection of PROGINET, and for PROGINET's reliance
on the confidence in Employee.
B. Employee recognizes and acknowledges that the confidential,
proprietary, and trade secret information of PROGINET,
including (without limitation) information regarding PROGINET
inventions, discoveries, acquisitions, product designs,
product improvements, product flow charts, file layouts,
formulas, equipment, marketing and business plans, methods,
research, source codes, object codes, program documentation
and related user information manuals, as well as its
confidential customer information, including customer lists
and pricing policies (hereinafter referred to as "Confidential
Information"), are valuable, special, and unique assets which
are owned by PROGINET, and, along with confidential,
proprietary, and trade secret information disclosed by third
parties to PROGINET, are regularly used in the business of
PROGINET. Employee will not (except with PROGINET's prior
written consent), while in the employ of PROGINET, or
thereafter, directly or indirectly, disclose or allow the
disclosure of any Confidential Information to any person,
firm, corporation, association, government (except as required
by law), or other entity for any reason or purpose whatsoever,
nor shall Employee, directly or indirectly, make use of any
such Confidential Information for his or her own purposes or
for the
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benefit of any person, firm, corporation, association, or
other entity (except PROGINET) under any circumstances. During
the term of his or her assignment, Employee shall, at the
request of PROGINET, execute such assignments, certificates,
or other instruments as PROGINET may from time to time deem
necessary or desirable to evidence, maintain, perfect,
protect, enforce, or defend its rights, title and interests in
or to any such Confidential Information.
C. Employee agrees that all software developed and all
Confidential Information relating to PROGINET's business that
Consultant shall use or prepare or come into contact with
shall remain the sole and exclusive property of PROGINET.
Consultant further agrees to deliver such property to PROGINET
immediately at the earlier of the termination of his or her
assignment by PROGINET or at the request of PROGINET.
2. NON-COMPETITION BY CONSULTANT.
During the term of Employee's assignment with PROGINET,
Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner,
stockholder (of more than ten percent (10%) of the outstanding
capital stock), corporate officer, director, or in any other
individual or representative capacity, engage or participate
in any business that is in competition, in any manner
whatsoever, with the business of PROGINET.
3. RESTRICTIONS ON POST-EMPLOYMENT ACTIVITIES.
A. Employee recognizes that the limited protection afforded to
PROGINET by the covenants contained in this Section 3 are
based upon the following:
(1) PROGINET has expended and will continue to expend
substantial time, money, and effort in developing and
acquiring (i) computer software programs and related
user information manuals and the expertise to produce
such in which the designs, source and object codes,
manuals, and specifications are valuable trade
secrets, and (ii) a valuable list of customers and
information about their technical problems and needs,
computer software purchasing and licensing habits,
idiosyncrasies, and internal computer software
purchasing and licensing procedures which are also
trade secrets of PROGINET, and (iii) goodwill with
its customers and in the computer products industry
and business community in general;
(2) Employee will, in the course of his or her
assignment, be personally entrusted with and/or
exposed to Confidential Information;
(3) PROGINET, during the term of this Agreement and after
its termination, will be engaged on a worldwide basis
in the highly competitive computer software program
industry and computer software program services
industry in which many firms, including PROGINET,
compete;
(4) PROGINET will further develop its substantial,
worldwide computer software business through the
development and acquisition of certain patents,
copyrights, technology, and associated trade secrets
and know-how, relating to computer software programs;
(5) Employee could become a competitor of PROGINET after
having access to PROGINET's training and experience,
financial records, contracts, patents, copyrights,
computer software technology, and Confidential
Information;
(6) PROGINET may suffer great loss and irreparable harm
if Employee's employment with PROGINET is terminated
and thereafter he or she entered, directly or
indirectly, into competition with PROGINET.
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B. In consideration of both the payments and benefits provided to
Employee as an Employee of PROGINET and under this Agreement,
as well as the wide access PROGINET will grant to Employee to
review and become familiar with the Confidential Information,
Employee agrees that during and for a period of one (1) year
after termination of his or her employment, no matter what the
cause of that termination, he or she shall not for any reason,
directly or indirectly, whether as an employee, consultant,
partner, proprietor or investor, for himself or on behalf of,
or in conjunction with any person, partnership, or corporation
do any one or more of the following:
(1) Engage in the marketing, solicitation, licensing, or
selling of any product or service which performs
functions the same as, similar to, or directly
competitive with, those being marketed, licensed, or
sold by PROGINET at the time of such termination to
any customer of PROGINET within any geographic
territory to which Employee was assigned
responsibility by PROGINET during the one (1) year
period prior to Employee's termination of employment.
(2) Use any Confidential Information that was acquired by
Employee as an employee of PROGINET (i) in order to
acquire a competitive advantage, or (ii) in any
manner such that it would have a detrimental effect
upon PROGINET's business.
(3) Engage in any activity for the purpose of inducing,
encouraging, offering, or arranging for the
employment or engagement by anyone other than
PROGINET of any employee, officer, director, agent,
consultant, or sales representative of PROGINET or
attempt to engage any of them in a manner which would
deprive PROGINET of their services or place them in a
conflict of interest with PROGINET.
C. PROGINET and Employee agree that the covenants set forth in
this Agreement shall accrue to the benefit of PROGINET,
irrespective of any reason for termination of Employee's
employment, or Employee's performance as an employee of
PROGINET and that termination of this Agreement for any reason
shall not terminate Employee's obligations hereunder.
D. The parties acknowledge that they have attempted to limit
Employee's activities only to the extent necessary to protect
PROGINET's legitimate interests. Consequently, the parties
hereby agree that, if the scope or enforceability of the
covenants contained in this Agreement are in any way disputed
at any time, a court or other trier of fact may modify and
enforce the covenants to the extent that it believes to be
reasonable under the circumstances existing at that time.
4. DISCLOSURE OF INFORMATION TO PROGINET.
Employee further agrees that he or she shall not (i) disclose to
PROGINET or its employees or otherwise use in connection with
Employee's employment with PROGINET, any confidential information
obtained by Employee from Employee's prior employers or other persons
for whom Employee was a consultant or (ii) in any other manner breach
their terms of any such agreement or understanding with any such prior
employer or other person.
5. FEDERAL REGULATIONS.
Employee shall comply with United States Government regulations
applicable to contracts between the agencies of the United States
Government (or their contractors) and PROGINET which relate either to
patent rights or to the safeguarding of information pertaining to the
defense of the United States.
6. NOTICE TO SUBSEQUENT EMPLOYERS.
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Employee agrees that upon termination of his or her employment, no
matter what the cause of that termination, he or she will notify any
new employer, partner, associate, or any other person, firm or
corporation with whom Employee becomes associated in any business
capacity whatsoever, of the provisions of this Agreement, and PROGINET
may give similar notice thereof.
7. NOTICE OF PREVIOUS AGREEMENTS.
Employee confirms that he/she is not a party to or otherwise bound by
any other agreement restricting the use of information, confidential or
otherwise, in the possession of Employee or relating to the transfer of
any invention to any person or entity other than PROGINET.
8. NOTICE.
Any notice required under this Agreement shall be given in writing.
Notice to the Employee shall be (i) delivered in person to Employee, or
(ii) sent by a recognized air courier to Employee's residence as
reflected on the records of PROGINET. Notice to PROGINET shall be sent
by a recognized air courier to PROGINET's principal office.
9. INJUNCTIVE RELIEF.
Employee acknowledges and agrees that it would be difficult and may be
impossible to fully compensate PROGINET for damages resulting from the
breach or threatened breach of the provisions of this Agreement, and
accordingly agrees that PROGINET shall be entitled to temporary and
injunctive relief, including temporary restraining orders, preliminary
injunctions, and permanent injunctions to enforce such provisions in
any actions or proceedings instituted in any court of competent
jurisdiction. This provision with respect to injunctive relief shall
not, however, diminish PROGINET's right to claim and recover damages.
10. DEFENSES.
The existence of any claim or cause of action by Employee against
PROGINET, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by PROGINET of the covenants
made by Employee herein.
11. WAIVER.
The failure of PROGINET to object to any conduct in violation of any of
the covenants made by Employee herein shall not be deemed a waiver by
PROGINET, but PROGINET may, if it wishes, specifically waive any part
or all of those covenants to the extent that such waiver is set forth
in writing duly authorized by an officer of PROGINET.
12. GOVERNING LAW.
The parties agree that this Agreement shall be interpreted and enforced
in accordance with the laws of the State of New York, exclusive of its
provisions relating to conflicts of laws. In addition, the Employee and
PROGINET hereby submit to the jurisdiction of the federal and/or state
courts, as the case may be, sitting in Nassau County, New York, in
connection with any action arising from or relating to the enforcement,
interpretation or application of the terms of this Agreement.
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13. ASSIGNMENT.
The parties agree that PROGINET may assign Employee to render services
to a subsidiary or any other related company and in all events, the
obligations contained herein with respect to Employee shall apply to
PROGINET, its subsidiaries, and any other company in which PROGINET
shall have a majority interest. Nothing in this Agreement shall
preclude PROGINET from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another
corporation which assumes this Agreement and all obligations and
undertakings of PROGINET hereunder. Upon such a consolidation, merger,
or transfer of assets and assumption, the term "PROGINET" as used
herein shall mean such other corporation and this Agreement shall
continue in full force and effect. The obligations and duties of
Employee hereunder shall be personal and not assignable or delegable by
Employee in any manner whatsoever.
14. SEVERABILITY.
In the event that any portion of this Agreement shall be held to be
invalid or unenforceable, it is agreed that the same shall not affect
any other portion of this Agreement, but that the remaining terms and
conditions or portions thereof shall remain in full force and effect,
and that if any aspect of the restrictive covenants of this Agreement
shall nevertheless be effective for such period of time and such areas
as may be determined to be reasonable by a Court of competent
jurisdiction.
15. FINAL AGREEMENT.
This Agreement supersedes any previous oral or written communications,
representations, understandings, or agreements between the parties
relating to the subject matter hereof.
No alterations, amendments, changes, or additions to this Agreement
shall be binding upon either party unless reduced to writing and signed
by both parties.
16. EMPLOYMENT-AT-WILL.
The Employee should be aware that the policies and programs of PROGINET
may be amended at any time, and that, depending upon the particular
circumstances of a given situation, PROGINETt's actions may vary from
written policy. As such, the contents of any policy, procedures, or
other documents, DO NOT CONSTITUTE THE TERMS OF A CONTRACT OF
EMPLOYMENT. Nothing contained in this document should be construed as a
guarantee of continued employment. Rather, employment with the Company
is on an "at will" basis. This means that the employment relationship
may be terminated at any time by either the Employee or Proginet for
any reason not expressly prohibited by law. Any written or oral
statement to the contrary by a supervisor, corporate officer or other
agent of Proginet is invalid and should not be relied upon by any
employee or applicant for employment.
THIS AGREEMENT IS NOT A CONTRACT FOR EMPLOYMENT OF THE EMPLOYEE.
IN WITNESS WHEREOF, the parties intending to be legally bound hereby have set
their hands and seals hereto on the day and year first above written, and
Employee hereby acknowledges receipt of a copy of this Agreement.
WITNESS: PROGINET CORPORATION
____________________________________ __________________________________(Seal)
(Company Official)
WITNESS:
____________________________________ Name:_____________________________(Seal)
(EMPLOYEE)
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SCHEDULE "A"
INVENTIONS
MADE OR CONCEIVED
PRIOR TO EMPLOYMENT
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WITNESS: PROGINET CORPORATION
____________________________________ __________________________________(Seal)
(Company Official)
WITNESS:
____________________________________ Name:_____________________________(Seal)
(EMPLOYEE)
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