Exhibit 10.35
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Agreement between the undersigned individual (the "Employee") and
Metasyn, Inc., a Delaware corporation (collectively with its subsidiaries, if
any, the "Company"), is made in consideration of the Employee's employment or
the continuance of the Employee's employment with the Company, and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
1. Non-Competition; Non-Solicitation. The Employee agrees that while
he is employed by the Company and for a period of one year after the termination
or cessation of such employment (for any reason or for no reason), he will not
directly or indirectly:
(a) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than one per cent (1%)
of the combined voting power of the outstanding stock of a publicly held
company), engage in the business of developing, producing, marketing, or selling
products or services competitive with those that were developed or being
developed, produced, marketed or sold by the Company while the Employee was
employed by the Company; or
(b) recruit, solicit, or induce or attempt to recruit,
solicit, or induce any of the Company's employees or consultants to terminate
their employment or relationship with the Company; or
(c) solicit, divert, or take away or attempt to solicit,
divert, or take away the business or patronage of any of the Company's actual or
prospective clients, customers or accounts that were contacted, solicited or
served by the Employee while the Employee was employed by the Company.
2. Interpretation. The parties to this Agreement believe that the
foregoing restrictions are necessary and reasonable for the protection of the
business and goodwill of the Company. If any of those restrictions is found by
any court of competent jurisdiction to be invalid or unenforceable because it
extends over too long a period of time, too great a range of activities, or too
broad a geographic area, it shall be deemed to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
3. Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable under applicable
law, such invalidity or unenforceability shall not affect the remaining
provisions of this Agreement.
4. Waiver of Rights. No delay or omission by the Company in exercising
any right under this Agreement will operate as a waiver of that or any other
right. A waiver or consent given by the Company on any occasion is effective
only in that instance and will not be construed as a bar to or waiver of any
right on any other occasion.
5. Equitable Remedies. The Employee hereby stipulates and agrees that
any breach of this Agreement will cause the Company substantial and irrevocable
damage. In the event of any such breach, in addition to such other remedies that
may be available, the Company shall be entitled to specific performance and
injunctive relief and to recover all costs and expenses including, without
limitation, reasonable attorneys' fees and court costs.
6. No Conflict. The Employee represents that the execution and
performance by him of this Agreement does not and will not conflict with or
breach the terms of any other agreement by which the Employee is bound.
7. Not Employment Contract. The Employee acknowledges that this
Agreement does not constitute a contract of employment and does not imply that
the Company will continue his employment for any period of time.
8. Governing Law. This Agreement shall be governed by and interpreted
and construed in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Employee has executed and delivered this
Agreement to the Company as of the date indicated below.
Dated: ___________________ ______________________________
(Signature of Employee)
Print Name: __________________
METASYN, INC.
Dated: ___________________ By: __________________________
Name: ________________________
Title: _______________________
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