EXHIBIT 10.9
AGREEMENT REGARDING EMPLOYMENT
AGREEMENT, effective as of the date set forth at the foot of this
Agreement, by and between OMEGA RESEARCH, INC., a Florida corporation
("Employer"), and ____________________ ("Employee").
PRELIMINARY STATEMENT
This Agreement covers various subjects, including (i) protection of
Employer's trade secrets and confidential information, (ii) non-solicitation of
Employer's customers, licensees and other employees, (iii) restrictions on
Employee's ability to compete with Employer or participate in competitive
businesses both during and after Employee's employment, (iv) misuse of trade
secrets or confidential information belonging to others and interference with
rights of others, (v) the full-time, exclusive nature of Employee's employment
commitment, and (vi) unfair business practices. Each of these subjects is
equally important, and if Employee accepts employment or continued employment
with Employer, Employee is agreeing to faithfully observe all covenants and
agreements set forth below relating to each subject addressed, without
exception.
Employee has been informed by Employer, and understands, that (a)
Employer has developed and owns, as a result of substantial effort and expense
on the part of Employer, valuable trade secrets and other valuable confidential
business information to which Employee has and/or will have substantial access,
(b) Employee has developed and/or will be developing important and substantial
relationships with other valuable employees of Employer and/or with certain of
Employer's clients, licensees, vendors and/or other third parties having
dealings with Employer, and (c) Employer has devoted and/or will be devoting
substantial efforts and expense to train Employee to perform Employee's
employment duties, which has resulted (or, if this is a new employment, assuming
it continues, will likely result) in the development by Employee of specialized
and valuable skills, knowledge and abilities.
In light of all of the foregoing, in order to protect Employer's
legitimate business interests, including its goodwill with its clients,
licensees and other employees and Employer's trade secrets, and as a condition
to Employee's employment with Employer (or, if Employee is already employed by
Employer, as a condition to Employer agreeing to continue to employ Employee),
Employee has agreed to make for the benefit of Employer the reasonable covenants
and agreements set forth below. As an employee of Employer, Employee agrees to
observe all of the provisions of this Agreement, as well as all other rules and
policies that Employer may announce from time to time.
NOW, THEREFORE, it is agreed as follows:
1. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) CONFIDENTIAL INFORMATION. Employee acknowledges that Employee
has been informed by Employer that it is Employer's policy to maintain as secret
and confidential all information and materials (whether or not stamped or marked
"Confidential" or bearing some other indicia of confidentiality) relating to (i)
the financial condition, operations and business interests,
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objectives, plans and strategies of Employer, (ii) the systems, know-how,
records, products, product plans, product designs, product development,
services, cost information, inventions, computer programs, marketing and sales
strategies techniques and/or programs, methods, methodologies, manuals, lists
and other trade secrets from time to time acquired, sold, developed, maintained
and/or used by Employer, (iii) the nature and terms of Employer's relationships
with its clients, licensees, suppliers, lenders, underwriters, vendors,
consultants, independent contractors, attorneys, accountants and employees, and
(iv) any proposed public or private offering of Employer (all such information
and materials are collectively referred to as "Confidential Information").
Accordingly, Employee agrees that Employee will not directly or indirectly at
any time (including after the date on which Employee's employment terminates)
divulge or disclose for any purpose (except as specifically authorized by
Employer) to any persons, firms, corporations or other entities (collectively,
"Third Parties"), or use or cause or authorize any Third Parties to use, any
such Confidential Information. "Confidential Information" does not include
information that, at the time of disclosure, is generally known in Employer's
industry or information which Employee can demonstrate was known to or developed
by Employee prior to the date of Employee's commencement of employment with
Employer without reliance upon or use of Confidential Information. If Employee
is required by order of a court or other governmental authority to disclose any
Confidential Information, Employee shall immediately notify Employer so that
Employer may attempt to obtain an appropriate protective order, and, in all
events, Employee shall only disclose the portion of the Confidential Information
required by such order to be disclosed.
(b) EMPLOYER'S MATERIALS. Employee further agrees that (i)
Employee will at no time retain or remove from the premises of Employer any
products, prototypes, drawings, notebooks, software programs or discs, tapes or
similar containers of software, manuals, data, books, records, materials or
documents of any kind or description containing Confidential Information for any
purpose unconnected with the strict performance of Employee's duties with
Employer, and (ii) upon the termination of Employee's employment with Employer
for any reason, Employee shall immediately deliver or cause to be delivered to
Employer any and all such drawings, notebooks, software programs or discs, tapes
or similar containers of software, manuals, data, books, records, materials and
other documents and materials (and all copies thereof) in Employee's possession
or under Employee's control relating to any Confidential Information or any
other materials which are the property of Employer.
(c) EMPLOYEE'S ACKNOWLEDGMENT. Employee acknowledges that Employee
is aware that Employee may be subject to severe criminal penalties (including
fines and lengthy imprisonment) under both federal and state law, including
Title 18, Sections 1831, et. seq. of the United States Code (The Economic
Espionage Act of 1996) and Section 812.081, Florida Statutes, as well as
substantial personal civil liability, for (i) stealing, or without Employer's
permission, taking, misappropriating or concealing, or by fraud or deception
procuring, Confidential Information, or (ii) without Employer's permission,
receiving, possessing, altering, destroying, copying, sending, downloading,
uploading or conveying Confidential Information. Employee further acknowledges
that any person or entity to whom Confidential Information is given by Employee
may also become subject to severe criminal penalties and civil liability.
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2. COVENANT-NOT-TO-COMPETE
(a) Employee covenants and agrees that, during Employee's
employment with Employer and for a period of two (2) years after the date
Employee ceases for any reason to be employed by Employer, Employee shall not,
directly or indirectly, (i) sell or provide or license, or be involved in the
sale or provision or licensing of, any Financial Market Data Software Products
or Services (as defined below) to any person or entity who is or was a client,
licensee or customer of Employer at any time during Employee's employment with
Employer and for or to whom Employer is performing such services or selling or
licensing such products or for or to whom Employer has performed such services
or sold or licensed such products at any time during the one-year period ending
on Employee's termination of employment, or (ii) in any capacity engage or
participate in any venture, enterprise, activity or business which involves the
sale, licensing, performance or provision of Financial Market Data Software
Products or Services, passively (except for passive investments in
publicly-traded companies) or actively, as an owner, director, officer, partner,
member, consultant, independent contractor, advisor, participant, employee or
agent, anywhere within the world. "Financial Market Data Software Products or
Services" means software products and/or services which (A) collect or deliver
financial market data (including but not limited to stocks, bonds, options,
futures, commodities, other securities and/or fundamental company data), and/or
(B) are or can be used to make, review or devise investment analyses or
strategies, including, without limitation, charting, technical analysis and/or
strategy testing and automation. Employee acknowledges that the business of
Employer is international in scope, that, due to the electronic and telephonic
nature of Employer's business and the nature of Employer's clients, licensees
and customers, one could effectively compete with such business from nearly
anywhere in the world, and that, therefore, such geographical area of
restriction is reasonable in the circumstances to protect Employer's trade
secrets and other legitimate business interests.
(b) PAYMENT FOR COVENANT-NOT-TO-COMPETE. Employer and Employee
both believe that, due to the specialized nature of Employer's business, it
would not be difficult for Employee, upon termination of Employee's employment,
to find gainful employment or have other business pursuits which are not
violative of the restrictions set forth above, as there are several industries
and lines of business in which Employee could work which are dissimilar to, and
not competitive with, Employer's business. However, Employer understands that
such restrictions may limit Employee's new employment options following a
termination of Employee's employment with Employer. Accordingly, if following
termination of employment with Employer, Employee is offered a position which,
if accepted, would violate the restrictive covenants set forth above, Employer
will either (i) consent to Employee accepting employment restricted by
subsection (a) above, or (ii) not consent, but pay Employee additional
consideration for Employee remaining bound by such restrictions. In order to
receive the benefit of these provisions, Employee must be and remain in
compliance with all provisions of this Agreement, and must comply with the
following procedures. Upon Employee's receipt of a written offer of employment
which Employee desires to accept and, if accepted, would constitute a violation
of subsection (a) above, Employee shall promptly notify Employer of such offer
and provide to Employer a copy thereof together with a written statement
explaining in reasonable detail Employee's job responsibilities at the new
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employment. Within thirty (30) days following the date that Employer has been
given a copy of such offer and written statement, Employer will notify Employee
that either (x) Employer consents to Employee accepting such new employment (but
such consent shall extend only to the job responsibilities described in the
written statement and shall not under any circumstances authorize Employee to
disclose or use any Confidential Information or to fail to comply with any other
provision of this Agreement), or (y) Employee may not accept the new employment.
If Employer decides that Employee may not accept the new employment, Employer
shall pay to Employee each month an amount equal to 1/24th of Employee's annual
salary in effect at the date of termination of Employee's employment
("Additional Monthly Payments"). Such Additional Monthly Payments will cease at
the end of the 24th month following the date of Employee's termination of
employment, provided that, if Employee commences other full-time employment
during such 24- month period, such Additional Monthly Payments shall cease upon
the commencement of such new employment. Employee shall promptly notify Employer
if Employee accepts any such new employment. If Employee fails to notify
Employer of new full-time employment and continues to accept Additional Monthly
Payments from Employer after commencing new full-time employment, Employee shall
be obligated to repay to Employer all Additional Monthly Payments received from
Employer pursuant to these provisions.
(c) Employee acknowledges that Employer devotes substantial time,
effort and expense to the recruitment, selection, training, development and
promotion of talented individuals for positions of significant responsibility
with Employer. Employee further acknowledges that it would be unfair to use
Employee's familiarity with Employer's business and other employees and
Employer's independent contractors and consultants to participate, directly or
indirectly, in any activities designed to cause any of Employer's other
employees to leave Employer's employ or to cause any of Employer's independent
contractors or consultants to cease performing services for Employer.
Accordingly, Employee covenants and agrees that, during Employee's employment
with Employer and for a period of two (2) years after the date Employee ceases
for any reason to be employed by Employer, Employee shall not, directly or
indirectly, solicit the services of or recruit, whether on Employee's own behalf
or on behalf of others, any of the following types of employees, independent
contractors or consultants of Employer: (i) executives, managers, supervisors or
department directors; (ii) technicians, engineers, programmers or information
services workers (whether employees, independent contractors or consultants);
(iii) product, project or task managers or supervisors (whether employees,
independent contractors or consultants); (iv) sales or marketing personnel or
consultants; financial or accounting services personnel or consultants; (v)
legal personnel; or (vi) customer support personnel or consultants; or otherwise
persuade or cause, or attempt to persuade or cause, any such employee,
independent contractor or consultant to leave Employer's employ or cease
performing services for Employer. Employee acknowledges that it would be
difficult to ascertain with a degree of certainty the substantial damages that
would be incurred by Employer if Employee violates or breaches the foregoing
covenant. In order to avoid such difficulty and in an attempt to approximate the
damage that Employer would incur in the event of such violation or breach, if
Employee takes or participates in any of the actions prohibited above with
respect to any of the employees, independent contractors or consultants
described above, and such employee, independent contractor or consultant then
leaves Employer's employ or ceases to
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perform services for Employer, Employee shall pay to Employer, as liquidated
damages, the sum of $50,000 per employee, independent contractor or consultant
who so leaves Employer's employ or ceases to perform services for Employer. The
payment of such liquidated damages shall not limit, impair or diminish
Employer's right to seek and obtain (x) any appropriate equitable relief
(including but not limited to specific performance, temporary restraining order
and temporary and permanent injunction), (y) monetary and other relief, at law
or in equity, for other causes of action which may have resulted from Employee's
breach or violation (such as intentional interference with contractual or
business relations in the event an employee is solicited by Employee for a
competitive position and such employee is subject to a covenant-not-to-compete),
or (z) monetary and other relief, at law or in equity, from or against persons
or entities other than Employee.
3. EMPLOYER'S REMEDIES FOR BREACH OF SECTIONS 1 AND 2
Employee agrees that if Employee shall violate or breach any of
Employee's covenants or agreements in Section 1 or 2(a) hereof, Employer shall
be entitled to an accounting and repayment of any and all profits, compensation,
commissions, payments and benefits which Employee directly or indirectly has
realized and realizes as a result of, or in connection with, any such violation
or breach. In addition, in the event of a breach or violation or threatened or
imminent breach or violation of any provisions of Section 1 or 2 hereof,
Employer shall be entitled to a temporary and permanent injunction or any other
appropriate decree of specific performance or equitable relief (without, unless
otherwise required by statute, being required to post bond or other security)
from a court of competent jurisdiction in order to prevent, prohibit or restrain
any such breach or violation or threatened or imminent breach or violation by
Employee. Employer shall be entitled to such injunctive or other equitable
relief in addition to any ascertainable damages which are suffered (or
liquidated damages which may be payable, as the case may be). It is understood
that resort by Employer to such injunctive or other equitable relief shall not
be deemed to waive or to limit in any respect any other rights or remedies which
Employer may have with respect to such breach or violation.
4. REASONABLENESS OF RESTRICTIONS
(a) REASONABLENESS. Employee acknowledges that any breach or
violation of Section 1 or 2 hereof will likely cause irreparable injury and
damage to Employer and that it would be very difficult or impossible to measure
all of the damages resulting from any such breach or violation. Employee further
acknowledges that Employee has carefully read and considered the provisions of
Sections 1, 2 and 3 hereof and, having done so, agrees that the restrictions and
remedies set forth in such Sections (including the time period, geographical and
types of restrictions imposed) are fair and reasonable and are reasonably
required for the protection of the trade secrets, good will and other legitimate
business interests of Employer.
(b) SEVERABILITY. Employee understands and intends that each
provision and restriction agreed to by Employee in Sections 1, 2 and 3 hereof be
construed as separate and divisible from every other provision and restriction.
In the event that any one of the provisions of, or
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restrictions in, Sections 1, 2 and/or 3 hereof shall be held to be invalid or
unenforceable, and is not reformed by a court of competent jurisdiction (which a
court, in lieu of striking a provision entirely, is urged by the parties to do),
the remaining provisions and restrictions shall continue to be valid and
enforceable as though the invalid or unenforceable provision or restriction had
not been included. In the event that any such provision relating to time period,
geographical or type of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum or permissible time period, geographical or
type of restriction such court deems reasonable and enforceable, said time
period, geographical or type of restriction shall be deemed to become and shall
then be the maximum time period or geographical area or type of restriction
which such court deems reasonable and enforceable.
5. OWNERSHIP OF WORK DEVELOPED IN WHOLE OR IN PART BY EMPLOYEE.
Employee covenants and agrees with Employer that any and all
formulae, devices, patterns, know-how, technology, computer programs,
documentation, processes, lists, compilations, literature, inventions,
methodologies, techniques and other work product ("Work") created or developed
in whole or in part by Employee (whether alone or in cooperation with others)
during the term of Employee's employment, if created or developed in whole or in
part (i) on Employer's premises, or (ii) during Employee's normal working hours,
or (iii) with the use of Employer's resources, or (iv) based upon Employee's
access to or knowledge of Confidential Information, no matter what such Work
relates to or is about, shall immediately be disclosed by Employee to Employer
and is and shall be solely Employer's property. Employee further covenants and
agrees with Employer that any Work created or developed in whole or in part by
Employee (whether alone or in cooperation with others) during the term of
Employee's employment, even if wholly developed or created off Employer's
premises, on Employee's own time, and without use of Employer's resources or
Confidential Information, if related to Employer's business, is and shall be
solely Employer's property. In all such cases, Employee agrees that Employer is
the "person for whom the work was prepared" for the purposes of determining
authorship of any copyright in the Work, and all of the Work shall be deemed
"work made for hire" as that term is defined in Section 101 of the U.S.
Copyright Act. In addition, all inventions, discoveries, improvements, trade
secrets, trademarks, service marks, trade dress, know-how, names, ideas and
other proprietary rights and intellectual property rights, whether or not
patentable, embodied in, represented by, incorporated in, part of, or relating
to any of the Work (collectively, "Other Intellectual Property Rights") are, and
shall be, as between Employer and Employee, the property of solely Employer,
and, so there will be no doubt, Employee hereby assigns to Employer, its
successors and assigns all of Employee's right, title and interest in and to all
Other Intellectual Property Rights. If, for any reason, any of the Work is
determined not to be a "work made for hire" under U.S. law or the law of any
other jurisdiction, Employee agrees to assign, and does hereby assign, to
Employer, its successors and assigns all of Employee's right, title and interest
in and to all copyrights in all of the Work. Employee shall execute and deliver
to Employer from time to time upon Employer's request such confirmatory
assignments, instruments and other documents so as to evidence and confirm full
record and beneficial ownership of Employer in all such Work. Employee hereby
irrevocably appoints Employer as Employee's attorney-in-fact for the purpose of
signing and delivering such assignments, instruments and other documents, such
appointment being coupled with an interest.
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"Work" does not include works or inventions which do not relate to Employer's
business and are wholly created or developed by Employee off Employer's
premises, on Employee's own time and without use of Employer's resources or
Confidential Information.
6. CONTINUED EMPLOYMENT OF EMPLOYEE
Nothing in this Agreement shall be deemed or construed in any
manner to create or continue any employment relationship other than an
employment "at will." Employee and Employer are each free to terminate such
employment relationship at any time, for any reason.
7. EMPLOYMENT AS SOLE OCCUPATION
Employee agrees to devote Employee's full business time,
attention, skill and effort exclusively to the duties that Employer assigns to
Employee from time to time. Employee agrees that 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 Employer, unless Employer has given its consent in writing in
advance.
8. NON-INTERFERENCE WITH THIRD-PARTY RIGHTS
By signing this Agreement, and accepting employment or continued
employment with Employer, Employee is representing and warranting to Employer
that (a) Employee is free to accept or continue employment with Employer,
meaning that Employee has no contractual or other commitments which restrict
Employee from performing Employee's employment duties to the fullest extent, and
(b) only Employer is entitled to the benefit of Employee's work and efforts.
Employer advises Employee that Employer has no interest in using any other
person's patents, copyrights, trademarks, trade secrets or confidential or
proprietary information ("Intellectual Property Rights") in an unlawful manner,
and Employee agrees that Employee will not, in performing Employee's employment
duties, make use of any Intellectual Property Rights belonging to another which
Employer has no right to use. If Employee has any doubt about whether Employee
is misusing Intellectual Property Rights of another, Employee shall promptly
notify one of Employer's Co-CEO's, or Employer's Vice President-Operations or
General Counsel so that Employer may investigate and make the appropriate
decision.
9. VIOLATION OF POLICIES BY OTHER EMPLOYEES
Many, if not most, of Employer's employees are required to sign
this Agreement as a condition of employment or continued employment with
Employer. If Employee becomes aware that any other employee of Employer is
violating any provisions of this Agreement, Employee shall promptly report such
violation to one of Employer's Co-CEO's, or Employer's Vice President-
Operations or General Counsel. The information provided, and its source, will be
treated confidentially to the extent possible in the circumstances. While
Employer understands that it is not always easy or pleasant to report
wrongdoings of a co-worker, it is critically important that these
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provisions be observed by Employee, as violations of this Agreement may cause
substantial and irreparable harm to Employer's business which would cause all
employees of Employer to suffer.
10. UNFAIR BUSINESS PRACTICES
If, during Employee's employment with Employer, Employee learns or
suspects that any unfair or questionable business practice may be occurring,
Employee shall advise one of Employer's Co-CEO's or Employer's Vice
President-Operations or General Counsel promptly. This obligation is
intentionally broad and general because it is difficult to anticipate all
possible circumstances, and Employee should resolve all doubts by reporting the
information in question to one of such persons. In particular, if Employee
receives an offer of any kind (kickbacks, job offers, gifts, offers of money in
exchange for information, etc.) from any outside party or another employee of
Employer, Employee shall immediately notify Employer and provide all information
relating to such offer. No gift, favor, offer, benefit, promise to pay or other
thing of value shall be offered, made or authorized by Employee for any
questionable, improper or illegal purpose, nor shall any bribe or kickback be
offered, made or authorized by Employee, directly or indirectly, regardless of
motive, to or for the benefit of any customer, supplier or other person or
entity doing business with Employer, or any employee or agent thereof, or to or
for the benefit of any governmental official or employee.
11. LAW APPLICABLE
This Agreement shall be governed by and construed pursuant to the
laws of the State of Florida.
12. SUCCESSION
This Agreement shall inure to the benefit of the parties and their
respective heirs, administrators, legal representatives, successors and assigns
and shall be binding upon the parties and their respective heirs,
administrators, legal representatives and successors.
13. NO WAIVER
A waiver of any breach or violation of any term, provision or
covenant contained in this Agreement shall not be deemed a continuing waiver or
a waiver of any future or past breach or violation. No oral waiver shall be
effective or binding.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
day and year set forth below.
Dated: ____________ EMPLOYEE:
____________________________
EMPLOYER:
OMEGA RESEARCH, INC.
By:_________________________
Xxxxxxx Xxxx, President
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