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Rev'd 3/20/00
EMPLOYEE
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS AGREEMENT ("Agreement") dated as of June 1, 2000 hereby made between High
Speed Net Solutions, Inc. (HSNS), a Florida corporation ("Employer"), and Xxxxxx
X. Xxxxxx ("Employee").
WITNESSETH:
A. WHEREAS, the Company has employed Employee to devote the
Employee's full time, attention, and energies to the business of the Company and
to use his/her best efforts, skill and abilities in performing the duties of
such employment;
NOW, THEREFORE, BE IT RESOLVED that in consideration of the Company's
employment of Employee and the covenants and obligations set forth in this
Agreement and other valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
I. CONFIDENTIALITY
1. TREATMENT OF INFORMATION.
A. Employee acknowledges that, in and as a result of
Employee's employment by Employer, Employee shall or may be making use of,
acquiring and adding to confidential information of a special and unique nature
and value relating to such matters as Employer's trade secrets, systems,
programs (including, without limitation, Employer's computer software programs),
procedures, manuals, products, services, confidential reports and
communications, financial information, business and strategic planning
information, and lists of actual or potential customers, suppliers, business
partners, sources of financing, and clients. Employee further acknowledges that
any information (whether or not reduced to writing) and materials received by
Employer from third parties in confidence (or subject to non-disclosure or
similar covenants) shall be deemed to be and shall be confidential information
within the meaning of this Section 1. As a material inducement to Employer to
employ (or continue to employ) Employee and to pay to Employee compensation for
such services to be rendered to Employer by Employee (it being understood and
agreed by the parties hereto that such compensation shall also be paid and
received in consideration hereof), Employee covenants and agrees that Employee
shall not, except with the prior written consent of Employer, or except if
Employee is acting as an employee of Employer solely for the benefit of Employer
in connection with Employer's business and in accordance with Employer's
business practices and employee policies, at any time during or following the
term of Employee's employment by Employer, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use, for any purpose whatsoever,
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any of such information which has been obtained or disclosed to Employee as a
result of Employee's employment by Employer, including any of the information
referred to in Section 2 hereof.
B. Disclosure of any such information of Employer shall
not be prohibited if such disclosure is directly pursuant to a valid and
existing order of a court or other governmental body or agency within the United
States; provided, however, that (i) Employee shall first have given prompt
notice to Employer of any such possible or prospective order (or proceeding
pursuant to which any such order may result) and (ii) Employer shall have been
afforded a reasonable opportunity to prevent or limit any such disclosure.
2. DEFINITION OF PROTECTED INFORMATION.
A. For purposes of this Agreement, the term "Protected
Information" shall mean all of the information referred to in Section 1 hereof
and all of the following materials and information (whether or not reduced to
writing and whether or not patentable or protectable by copyright) which
Employee receives, receives access to, conceives or develops or has received,
received access to, conceived or developed, in whole or in part, directly or
indirectly, in connection with Employee's employment with Employer or in the
course of Employee's employment with Employer (in any capacity, whether
executive, managerial, planning, technical, sales, research, development,
manufacturing, engineering or otherwise) or through the use of any of Employer's
facilities or resources:
(i) Application, operating system, data base,
communication and other computer software, whether now or hereafter existing,
developed for use on any operating system, all modifications, enhancements and
versions and all options available with respect thereto, and all future products
developed or derived therefrom;
(ii) source and object codes, flowcharts,
algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design
concepts and related documentation and manuals;
(iii) Production processes, marketing techniques
and arrangements, mailing lists, purchasing information, pricing policies,
quoting procedures, financial information, customer and prospect names and
requirements, employee, customer, supplier and distributor data and other
materials or information relating to Employer's business and activities and the
manner in which Employer does business;
(iv) Discoveries, concepts, and ideas including,
without limitation, the nature and results of research and development
activities, processes, formulas, inventions, computer related equipment or
technology, techniques, "know-how," designs, drawings and specifications;
(v) Any other materials or information related
to the business or activities of Employer which are not generally known to
others engaged in similar businesses or
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activities; and
(vi) All ideas which are derived from or relate
to Employee's access to or knowledge of any of the above enumerated materials
and information.
B. Failure to xxxx any of the Protected Information as
confidential, proprietary or Protected Information shall not affect its status
as part of the Protected Information under the terms of this Agreement.
C. For purposes of this Agreement, the term "Protected
Information" shall not include information which is or becomes publicly
available without breach of (i) this Agreement, (ii) any other agreement or
instrument to which Employer is a party or a beneficiary or (iii) any duty owed
to Employer by Employee or any third party; provided, however, that Employee
hereby acknowledges and agrees that, except as otherwise provided in Xxxxxxx 0,
Xxxxxxxxx X hereof, if Employee shall seek to disclose, divulge, reveal, report,
publish, transfer or use, for any purpose whatsoever, any Protected Information,
Employee shall bear the burden of proving that any such information shall have
become publicly available without any such breach.
3. OWNERSHIP OF INFORMATION.
A. Employee covenants and agrees that all right, title
and interest in any Protected Information shall be and shall remain the
exclusive property of Employer; provided, however, that the foregoing shall not
apply to any invention for which no equipment, supplies, facility or Protected
Information of Employer was used, which was developed entirely on Employee's own
time, and which does not relate to or result from any of the following: (i) the
business of Employer, (ii) Employer's actual or demonstrably anticipated
research or development or (iii) any work performed by Employee for Employer.
Employee agrees immediately to disclose to an officer of Employer or other
personnel of Employer designated as having responsibility for the administration
of such matters all Protected Information developed in whole or in part by
Employee during the term of Employee's employment with Employer and hereby
assigns to Employer any right, title or interest Employee may have in such
Protected Information. Employee agrees, without additional compensation, to
execute any instruments and to do all other things reasonably requested by
Employer (both during and after Employee's employment with Employer) in order to
file applications in relation to any Protected Information for the protection of
intellectual property, including but not limited to patent and copyright
applications. Employee further agrees, without additional compensation, to
execute any instruments and to do all other things reasonably requested by
Employer (both during and after Employee's employment with Employer) in order to
vest more fully in Employer or its designee all ownership rights in those items
hereby transferred by Employee to Employer, or to evidence such ownership by
Employer.
B. If any one or more of the items described in Section
3, Paragraph A above are protectable by copyright and are deemed in any way to
fall within the definition of "work made for hire," as such term is defined in
17 U.S.C. ss.101, such work shall be considered a "work made for hire," the
copyright of which shall be owned solely, completely and exclusively by
Employer.
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If any one or more of the aforementioned items are protectable by
copyright and are not considered to be included in the categories of works
covered by the "work made for hire," definition contained in 17 U.S.C. ss.101,
such items shall be deemed to be assigned and transferred completely and
exclusively to Employer by virtue of the execution of this Agreement. Employee
agrees, without additional compensation, to execute any instruments and to do
all other things reasonably requested by Employer (both during and after
Employee's employment with Employer) in order to vest more fully in Employer or
its designee all ownership rights in those items hereby transferred by Employee
to Employer, or to evidence such ownership by Employer.
C. A patent application must be filed in the United
States within one (1) year of the date on which any invention is first placed on
sale or in public use, or is described in a printed publication. In general, a
patent application must be filed in any foreign country before public disclosure
of the invention, or must claim a priority date in advance of any such public
disclosure. By execution of this Agreement, Employee acknowledges that he/she is
aware of the importance of reporting inventions in sufficient time to permit the
filing of patent applications prior to a U.S. or foreign statutory bar. As part
of his/her disclosure of invention pursuant to paragraph 3.A. of this Agreement,
Employee agrees to inform Employer of any event which has occurred or is
impending that could create a statutory bar in the U.S. or a foreign country.
4. CUSTOMER LISTS. Upon the request of the Employer, Employee
shall furnish a complete list of the correct names and places of business of all
customers of Employer with whom the Employee has dealt with since the beginning
of his employment or the last two years, whichever is shorter.
5. MATERIALS. All notes, data, tapes, reference items, sketches,
drawings, memoranda, records and other materials in any way relating to any of
the information referred to in Sections 1 and 2 hereof (including, without
limitation, to any Protected Information) or to Employer's business shall belong
exclusively to Employer and Employee agrees to turn over to Employer all copies
of such materials in Employee's possession or under Employee's control at the
request of Employer or, in the absence of such a request, upon the termination
of Employee's employment with Employer.
II. NONCOMPETITION
6. EMPLOYEE CONDUCT WITH RESPECT TO COMPETITORS. During the term
of Employee's employment by the Company and for twelve months thereafter,
Employee agrees that Employee will not, without the prior written consent of the
Company, directly or indirectly, whether as an Employee, officer, director,
independent contractor, consultant, stockholder, partner or otherwise, engage in
or assist others to engage in or have any interest in any business which
competes with the Company in any geographic area in which the Company markets or
has marketed its products during the year preceding termination ("Territory").
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7. COVENANTS CONCERNING EMPLOYEES. It is recognized and
understood by the parties hereto that the employees of Employer are an integral
part of Employer's business and that it is extremely important for Employer to
use its maximum efforts to prevent Employer from losing such employees. It is
therefore understood and agreed by the parties hereto that, because of the
nature of the business of Employer, it is necessary to afford fair protection to
Employer from the loss of any such employees. Consequently, as a material
inducement to Employer to employ (or to continue to employ) Employee, Employee
covenants and agrees that, for the period commencing on the date of Employee's
termination of employment for any reason whatsoever and ending two (2) years
after Employee's termination of employment with Employer, Employee shall not,
directly or indirectly, hire or engage or attempt to hire or engage any
individual who shall have been an employee of Employer at any time during the
one (1) year period prior to the date of Employee's termination of employment
with Employer, whether for or on behalf of Employee or for any entity in which
Employee shall have a direct or indirect interest (or any subsidiary or
affiliate of any such entity), whether as a proprietor, partner, co-venturer,
financier, investor or stockholder, director, officer, employer, employee,
servant, agent, representative or otherwise.
8. MAXIMUM RESTRICTIONS OF TIME, SCOPE AND GEOGRAPHIC AREA
INTENDED; REASONABLENESS. The parties agree and acknowledge that the time, scope
and geographic area (i.e., the Territory) and other provisions of this Agreement
have been specifically negotiated by the parties, and Employee specifically
hereby agrees that such time, scope and geographic areas, and other provisions
are reasonable under these circumstances. Employee further agrees that the
restrictions set forth in this Agreement shall not impair Employee's ability to
secure employment within the field or fields of Employee's choice including,
without limitation, those areas in which Employee is, is to be or has been
employed by Employer. It is the intention of the parties that the provisions of
the restrictive covenant herein shall be enforceable to the fullest extent
permissible under applicable law, but that unenforceability (or modification to
conform to such law) of any provision or provisions hereof shall not render
unenforceable, or impair, the remainder thereof. Employee further agrees that
if, despite the express Agreement of the parties to this Agreement, a court
should hold any portion of this Agreement unenforceable for any reason, the
maximum restrictions of time, scope and geographic area reasonable under the
circumstances, as determined by the court, will be substituted for the
restrictions held unenforceable.
9. NOTICE. Employee will notify the Company of any other
employment into which he enters, either during the course of his employment with
Employer, or during the period of the restrictive covenants described in this
Agreement.
III. OTHER TERMS
10. BONUS FORFEITURE. If Employee willfully breaches the
confidentiality or non-competition provisions of this Agreement, Employee's
right to any unpaid bonus, whether or not accrued, shall terminate and cancel
the Company's obligation to make such payment.
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11. REMEDIES. Employee understands and agrees that Employer shall
suffer irreparable harm in the event that Employee breaches any of Employee's
obligations under this Agreement and that monetary damages shall be inadequate
to compensate Employer for such breach. Accordingly, Employee agrees that, in
the event of a breach or threatened breach by Employee of any of the provisions
of this Agreement, Employer, in addition to and not in limitation of any other
rights, remedies or damages available to Employer at law or in equity, shall be
entitled to a temporary restraining order, preliminary injunction and permanent
injunction in order to prevent or to restrain any such breach by Employee, or by
any or all of Employee's partners, co-venturers, employers, employees, servants,
agents, representatives and any and all persons directly or indirectly acting
for, on behalf of or with Employee. Such remedies shall be in addition to all
other remedies available to the Company in law or in equity, including but not
limited to the Company's right to recover from the Employee any and all damages
that may be sustained as a result of the Employee's breach.
12. ACCOUNTING FOR PROFITS; INDEMNIFICATION. Employee covenants
and agrees that, if Employee shall violate any of Employee's covenants or
agreements under this Agreement, Employer shall be entitled to an accounting and
repayment of all profits, compensation, royalties, commissions, remunerations or
benefits which Employee directly or indirectly shall have realized or may
realize relating to, growing out of or in connection with any such violation;
such remedy shall be in addition to and not in limitation of any injunctive
relief or other rights or remedies to which Employer is or may be entitled at
law or in equity or otherwise under this Agreement. Employee hereby agrees to
defend, indemnify and hold harmless Employer against and in respect of: (i) any
and all losses and damages resulting from, relating or incident to, or arising
out of any misrepresentation or breach by Employee of any warranty, covenant or
agreement made or contained in this Agreement; and (ii) any and all actions,
suits, proceedings, claims, demands, judgments, costs and expenses (including
reasonable attorneys' fees) incident to the foregoing.
13. NO PRIOR AGREEMENTS. Employee represents that Employee's
performance of all the terms of this Agreement and any services to be rendered
as an employee of Employer do not and shall not breach any fiduciary or other
duty or any covenant, agreement or understanding (including, without limitation,
any agreement relating to any proprietary information, knowledge or data
acquired by Employee in confidence, trust or otherwise prior to Employee's
employment by Employer) to which Employee is a party or by the terms of which
Employee may be bound. Employee covenants and agrees that Employee shall not
disclose to Employer, or induce Employer to use, any such proprietary
information, knowledge or data belonging to any previous employer or others.
Employee further covenants and agrees not to enter into any agreement or
understanding, either written or oral, in conflict with the provisions of this
Agreement.
14. EMPLOYEE'S STATUS. Nothing in this Agreement shall be
construed as constituting a commitment, guarantee, agreement or understanding of
any kind or nature that Employer shall continue to employ Employee, nor shall
this Agreement affect in any way the right of Employer to terminate the
employment of Employee at any time and for any reason whatsoever. By Employee's
execution of this Agreement, Employee acknowledges and agrees that Employee's
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employment is "at will." No change of Employee's duties as an employee of
Employer shall result in, or be deemed to be, a modification of the terms of
this Agreement.
15. AGREEMENT SURVIVES TERMINATION AND EXPIRATION OF ANY
APPLICABLE EMPLOYMENT AGREEMENT. The terms of this Agreement shall continue to
be in effect following the expiration or termination of Employee's employment
with the Company. The terms of this Agreement shall continue after the
expiration of any applicable Employment Agreement if Employee continues to work
for the Company without renewing the Employment Agreement.
16. CHOICE OF LAW, VENUE. The validity, interpretation and
performance of this Agreement shall be controlled by and construed under the
internal laws of North Carolina, without regard to conflicts of law principles.
Venue shall be in the appropriate county, state circuit, or Federal Court
situated in Raleigh, North Carolina.
17. SEVERABILITY ALLEGED VIOLATIONS. The provisions of this
Agreement shall be deemed severable, and the invalidity or unenforceability of
any one or more of the provisions hereof shall not affect the validity and
enforceability of the other provisions hereof. Employee agrees that the breach
or alleged breach by Employer of (i) any covenant contained in another agreement
(if any) between Employer and Employee or (ii) any obligation owed to Employee
by Employer, shall not affect the validity or enforceability of the covenants
and agreements of Employee set forth herein.
18. BURDEN AND BENEFIT; EMPLOYER. This Agreement shall be binding
upon, and shall inure to the benefit of, Employer and Employee, and their
respective heirs, personal and legal representatives, successors and assigns. As
used in this Agreement, the term "Employer" shall also include any corporation
or entity which is a parent, subsidiary or affiliate of Employer. Employee
hereby consents to the enforcement of any and all of the provisions of this
Agreement by or for the benefit of Employer and any such other corporation or
entity as to any Protected Information.
19. NOTICES. Any notice provided for in or concerning this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally, by courier or via facsimile so long as a confirmation is
received, or, if sent by certified or registered mail to the case of Employee,
to Employee's address as shown on Employer's records, and, in the case of
Employer, to its principal office.
20. ENTIRE AGREEMENT. Except for any Employment Agreement that may
be entered into between the Company and the Employee this Agreement contains the
entire agreement and understanding by and between Employer and Employee with
respect to the subject matter herein, and no representations, promises,
agreements or understandings, written or oral, not herein contained shall be of
any force or effect. No change or modification hereof shall be valid or binding
unless the same is in writing and signed by the party intended to be bound. No
waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is sought to be
enforced; moreover, no valid waiver of any other
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provision of this Agreement at such time or shall be deemed a valid waiver of
such provision at any other time.
21. ATTORNEY FEES. If an attorney shall be retained to interpret
or enforce the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, including any such fees set by the trial
or appellate court upon trial or appeal.
22. TOLLING PERIOD. If the Company seeks compliance with this
covenant by judicial proceedings and prevails, the period during which Employee
shall not compete with the Company (as delineated in this Agreement) shall
extend until full compliance with the non-competition time periods delineated in
this Agreement has occurred, taking into account the interim period, if any,
that Employee has competed with the Company in violation of the Agreement, and
the date of the judicial order requiring the Employee's compliance.
23. HEADINGS. The headings and other captions in this Agreement
are for convenience and reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement
as of the date written above.
EMPLOYER: EMPLOYEE:
High Speed Net Solutions, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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(Signature) (Signature)
Print below:
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
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Title: Office Manager Title: CFO
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Date: 6/1/00 Date: 5/22/00
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