NONCOMPETITION, NONSOLICITATION AND NONDISCLOSURE AGREEMENT
October 12, 2004
Xxxxxxx XX
Dear Xx. Xxxxxxx Xx:
In connection with the employment, you hereby covenant and agree to the
following.
1. Noncompetition; Nonsolicitation.
We have discussed, and you recognize and acknowledge the competitive and
proprietary aspects of CHINA FINANCE, INC.'s business. You acknowledge that a
business will be deemed competitive with CHINA FINANCE, INC. if it provides or
offers any service or product which is the same as or substantially similar to a
service or product which is provided or offered by CHINA FINANCE, INC. at any
time during the period which you are employed or retained by CHINA FINANCE, INC.
(such period, the "Period of Association") or at any time during the 3 months
immediately following the termination of the Period of Association (such 3-month
period, the "Restrictive Period").
(a) You agree that, during the Period of Association and during the
Restrictive Period, you will not, without the prior written consent of CHINA
FINANCE, INC. (which consent shall be given by CHINA FINANCE, INC.'s chief
executive officer if at all), you shall not, directly or indirectly, alone or as
an employee, agent, servant, owner, partner, member, officer, director,
consultant, independent contractor, representative, joint venturer, stockholder
or in any other capacity, own, manage, operate or control, or be concerned with
or connected to or employed by, or otherwise associate in any manner with,
engage in or have a financial interest in any business which is competitive with
the business of CHINA FINANCE, INC. (any such activity, a "Restricted
Activity"), anywhere within any state in the United States or any foreign
country or territory in which CHINA FINANCE, INC. is operating during the Period
of Association or at the time of the commencement of the Restrictive Period,
except, that your ownership of not more than one percent of the outstanding
shares of capital stock of any corporation having a class of equity securities
actively traded on a national securities exchange or on the Nasdaq National
Market shall not be deemed, in and of itself, to violate the prohibitions of
this Section 1(b).
(b) You agree that, during the Period of Association and during the
Restrictive Period, you will not, without the prior written consent of CHINA
FINANCE, INC. (which consent shall be given by CHINA FINANCE, INC.'s chief
executive officer if at all), you shall not, directly or indirectly, (i) entice,
solicit or encourage any Company employee or consultant to leave the service of
CHINA FINANCE, INC. for any reason, or (ii) employ or retain (or be involved in
the employment or retention of) any Company employee or consultant while any
such person is providing services to CHINA FINANCE, INC. or within 12 months
after any such person ceases providing services to CHINA FINANCE, INC. You
further agree that, during the Period of Association and during the Restrictive
Period, you shall not, directly or indirectly, contact or solicit (or attempt to
contact or solicit) any person or entity that was a customer of CHINA FINANCE,
INC. at any time during the Period of Association or induce or encourage any
such customer or other person with whom CHINA FINANCE, INC. has a business
relationship to terminate or alter such relationship.
(c) You agree that, during the Period of Association and during the
Restrictive Period, you will not, without the prior written consent of CHINA
FINANCE, INC. (which consent shall be given by CHINA FINANCE, INC.'s chief
executive officer if at all), you shall not, directly or indirectly, interfere
with, or attempt to interfere with, the relations between CHINA FINANCE, INC.
and any vendor or supplier to CHINA FINANCE, INC.
(d) You further recognize and acknowledge that (i) the types of
employment which are prohibited by this Section 1 are narrow and reasonable in
relation to the skills which represent your principal salable asset both to
CHINA FINANCE, INC. and to prospective employers, and (ii) the time period and
the specific but broad geographical scope of the provisions of this Section 1
are reasonable, legitimate and fair to you in light of CHINA FINANCE, INC.'s
need to market its services and sell its products in a large geographic area in
order to have a sufficient customer base to make CHINA FINANCE, INC.'s business
profitable and in light of the limited restrictions on the type of employment
prohibited herein compared to the types of employment for which you are
qualified to earn your livelihood.
2. Nondisclosure.
(a) You acknowledge that, during the Period of Association, you will
have access to and knowledge of CHINA FINANCE, INC.'s Confidential Information
(as defined below) and that CHINA FINANCE, INC. may provide you with unique and
specialized training. You also acknowledge that such Confidential Information
and such training have been developed and will be developed by CHINA FINANCE,
INC. through the expenditure by CHINA FINANCE, INC. of substantial time, effort
and money and that all such Confidential Information and training could be used
by you to compete with CHINA FINANCE, INC. Further, during the Period of
Association you may be introduced to customers, suppliers and others with
important relationships to CHINA FINANCE, INC. You acknowledge that any and all
"goodwill" created through such introductions belongs exclusively to CHINA
FINANCE, INC., including, without limitation, any goodwill created as a result
of direct or indirect contacts or relationships between you and any customers or
suppliers of CHINA FINANCE, INC.
(b) You covenant and agree that all Confidential Information is and
shall remain the sole property of CHINA FINANCE, INC. and that you will at all
times (both during the Period of Association and at all times thereafter) hold
it in strictest confidence, and will not, without the prior written consent of
CHINA FINANCE, INC. (which consent shall be given by CHINA FINANCE, INC.'s chief
executive officer if at all) disclose to any business, firm, entity or person,
either directly or indirectly, any of the Confidential Information, except as
may be required in connection with the rendering of services during the Period
of Association. In the event that you are questioned by anyone not employed or
retained by CHINA FINANCE, INC. or by an employee of or consultant to CHINA
FINANCE, INC. not authorized to receive Confidential Information, in regard to
any Confidential Information or concerning any fact or circumstance relating
thereto, you will promptly notify CHINA FINANCE, INC.'s chief executive officer.
Upon the termination of the Period of Association or if CHINA FINANCE, INC.
otherwise requests, you will return to CHINA FINANCE, INC. all tangible
Confidential Information and any copies thereof which are in your possession
(regardless of how such Confidential Information or copies are maintained). The
terms of this Section 2 are in addition to, and not in lieu of any statutory or
other contractual or legal obligations that you may have relating to the
protection of CHINA FINANCE, INC.'s Confidential Information.
(c) For purposes of this agreement, "Confidential Information" means
confidential and proprietary information of CHINA FINANCE, INC., whether in
written, oral, electronic or other form (including, but not limited to, models,
software and computer outputs), including, but not limited to, information and
facts concerning business plans, existing or future customers, suppliers,
licensors, licensees, partners, investors, affiliates or others, training
methods and materials, financial information, sales prospects, client lists,
inventions, technology, product information, personnel information, operating
procedures, marketing information, profit and loss information, gross profit
margins, selling strategies, job histories, seasonality, staffing practices, pay
rates, contract terms, supplier information, investors, hiring trends and needs
and any other technical, trade or business secret of CHINA FINANCE, INC. or of
any third party provided to you or CHINA FINANCE, INC. under a condition of
confidentiality, provided that Confidential Information will not include
information that is in the public domain other than through any fault or act by
you. The term "trade or business secret," as used in this agreement, will be
given its broadest possible interpretation under applicable law and will
include, without limitation, anything tangible or intangible or electronically
kept or stored, which constitutes, represents, evidences or records a secret
scientific, technical, merchandising, production or management information, or
any design, process, procedure, formula, invention, improvement or other
confidential or proprietary information or documents.
3. Matters Relating to Intellectual Property.
(a) You agree that (i) all work product, ideas, discoveries,
creations, manuscripts and properties, innovations, improvements, know-how,
inventions, designs, developments, apparatus, techniques, methods, processes,
computer programs, graphics, pictorial representations, user interfaces,
functional specifications, reports, spreadsheets, presentations, analyses and
formulae (collectively, "Inventions") which may be used in the business of CHINA
FINANCE, INC., whether or not patentable or copyrightable, which you may
conceive, reduce to practice or develop during the Period of Association (and,
if based on or related to any Confidential Information, within two years after
termination of the Period of Association), either alone or in collaboration with
another or others, whether during or out of regular business hours of CHINA
FINANCE, INC., whether or not on CHINA FINANCE, INC.'s premises or with the use
of its equipment, and whether at the request or upon the suggestion of CHINA
FINANCE, INC., or otherwise, will be the sole and exclusive property of CHINA
FINANCE, INC., and (ii) you will not publish or disclose to a third party,
either orally or in writing, any of the foregoing Inventions without the prior
written consent of CHINA FINANCE, INC. Without limiting the foregoing, you also
acknowledge that all original works of authorship which are made by you (solely
or jointly with others) during the Period of Association which relate to the
business of CHINA FINANCE, INC. and which are protectable by copyright are
"works made for hire" pursuant to the United States Copyright Act (17 U.S.C.
Section 101). You hereby assign to CHINA FINANCE, INC. all of your right, title
and interest in and to all of the foregoing. You further represent that, to the
best of your knowledge and belief, none of the Inventions will violate or
infringe upon any right, patent, copyright, trademark or right of privacy, or
constitute libel or slander against or violate any other rights of any person,
firm or corporation, and that you will use your best efforts to prevent any such
violation.
(b) At any time during the Period of Association and at any time
thereafter, you will fully cooperate with CHINA FINANCE, INC. and its attorneys
and agents in the preparation and filing of all papers and other documents as
may be required to perfect CHINA FINANCE, INC.'s rights in and to any of such
Inventions, including, but not limited to, (i) assisting, cooperating and/or
joining in any controversy or legal or administrative proceeding to obtain
letters patent, copyrights, trademarks or other legal rights with respect to any
such Inventions in the United States and in any and all other countries,
provided that CHINA FINANCE, INC. will bear the expenses of such controversies
or proceedings, (ii) executing and delivering to CHINA FINANCE, INC., without
additional compensation, all documents (including US and foreign patent
applications) for assigning, securing, protecting or registering all property
rights in such Inventions, and (iii) maintaining, or assisting in the
maintenance of, such records as will show the conception, development, reduction
to practice and operation of all Inventions.
(c) Unless so requested by CHINA FINANCE, INC. or otherwise
permitted in writing by CHINA FINANCE, INC. (which writing shall be signed by
CHINA FINANCE, INC.'s chief executive officer), you will not apply for any
patent or copyright, whether domestic or foreign, on any Invention.
Notwithstanding the foregoing, any patent or other legal right so issued to you
personally will be assigned by you to CHINA FINANCE, INC. without charge by you.
(d) With respect to any Inventions, and work of any similar nature
(from any source), whenever created, which you have not prepared or originated
during the Period of Association, but which you provide to CHINA FINANCE, INC.
or incorporate in any Company product or system, you hereby grant to CHINA
FINANCE, INC. a royalty-free, fully paid-up, non-exclusive, perpetual and
irrevocable license throughout the world to use, modify, create derivative works
from, disclose, publish, translate, reproduce, deliver, perform, dispose of, and
to authorize others so to do, all such Inventions. You will not include in any
Inventions you deliver to CHINA FINANCE, INC. or use on its behalf, without the
prior written approval of CHINA FINANCE, INC. (which approval shall be signed by
CHINA FINANCE, INC.'s chief executive officer), any material which is or will be
patented, copyrighted or trademarked by you or others unless you provide CHINA
FINANCE, INC. with the written permission of the holder of any such patent,
copyright or trademark for CHINA FINANCE, INC. to use such material in a manner
consistent with then-current Company policy.
(e) Listed below are any and all Inventions in which you claim or
intend to claim any right, title and interest (collectively, "Prior
Inventions"), including, without limitation, patent, copyright and trademark
interests, which to the best of your knowledge will be or may be delivered to
CHINA FINANCE, INC. in the course of your membership with, employment or
retention by, or services to CHINA FINANCE, INC., or incorporated into any
Company product or system. You acknowledge that your obligation to disclose such
information is ongoing while you are employed hereunder.
Prior Inventions (attach additional page if you need more room):
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(f) By signing below, you irrevocably constitute and appoint CHINA
FINANCE, INC., with full power of substitution, to be your true and lawful
attorney, in your name, place and xxxxx, to execute, acknowledge, swear to and
file all instruments, conveyances, certificates, agreements and other documents,
and to take any action which will be necessary appropriate or desirable to
effectuate the provisions of this Section 3. The powers of attorney granted
herein will be deemed to be coupled with an interest and will be irrevocable and
survive the occurrence of your death, disability or bankruptcy.
4. Miscellaneous.
(a) You will provide, and CHINA FINANCE, INC., in its discretion,
may similarly provide, a copy of the acknowledgements, agreements and covenants
contained in Sections 3, 4 and 5 above to any business or enterprise which you
may, directly or indirectly, own, manage, operate, finance, join, control or in
which you may participate in the ownership, management, operation, financing, or
control, or with which you may be connected as an officer, director, employee,
partner, principal, agent, representative, consultant or otherwise.
(b) You agree that a breach of this agreement by you will cause
irreparable damage to CHINA FINANCE, INC. for which monetary damages would not
be adequate and that, in the event of such breach, CHINA FINANCE, INC. shall
have, in addition to any and all remedies of law, the right to an injunction,
specific performance or other equitable relief to prevent the violation of your
obligations hereunder.
(c) You understand that this agreement does not create an obligation
on CHINA FINANCE, INC. or any other person or entity to continue your Period of
Association.
(d) The term "Company" shall include China Finance, Incorporated and
any of its present or future parent companies, subsidiaries, subdivisions or
affiliates. CHINA FINANCE, INC. may assign its rights and obligations hereunder
to any person or entity that succeeds to all or substantially all of CHINA
FINANCE, INC.'s business or that aspect of CHINA FINANCE, INC.'s business in
which you are principally involved or to any parent, subsidiary or affiliate of
CHINA FINANCE, INC. and all covenants and agreements hereunder shall inure to
the benefit of and be enforceable by said successors or assigns. You may not
assign your rights and obligations under this agreement without the prior
written consent of CHINA FINANCE, INC. and any such attempted assignment by you
without the prior written consent of CHINA FINANCE, INC. will be void. Any
assignment in contravention of this Section 4(d) shall be null and void.
(e) You agree that this agreement is necessary and reasonable to
protect CHINA FINANCE, INC.'s business interests, Confidential Information and
goodwill. You further acknowledge that you have had adequate opportunity to
review these terms and conditions and to reflect upon and consider the terms and
conditions of this agreement, and that you have had the opportunity to consult
with counsel of your own choosing regarding such terms. You further acknowledge
that you fully understand the terms of this agreement and have voluntarily
executed this agreement.
(f) All notices, requests, consents and other communications
hereunder which are required to be provided, or which the sender elects to
provide, in writing, will be addressed, if to you at your address set forth
above, and if to CHINA FINANCE, INC., at its offices at 000 Xxxxxxx Xxxxxx,
Xxxxx #000, Xxxxxx Xxxx, XX 00000, or in either case, to such other address as
either party may designate by notice hereunder, and will be either (i) delivered
by hand, (ii) sent by overnight courier, (iii) sent by registered or certified
mail, return receipt requested, postage prepaid, or (iv) sent by confirmed
facsimile or other electronic transmission. All notices, requests, consents and
other communications hereunder will be deemed to have been given either (i) if
by hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above, (ii) if sent by overnight courier, on the
next business day following the day such notice is delivered to the courier
service, (iii) if sent by registered or certified mail, on the third business
day following the day such mailing is made, or (iv) if sent by facsimile or
other electronic transmission, at the time of confirmation of such delivery if
sent on a business day during normal business hours of the recipient and
otherwise on the next business day.
(g) This agreement, together with any services, consulting or
employment agreement between you and CHINA FINANCE, INC., if any, embodies the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes all prior oral or written agreements
and understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this agreement (or such other services, consulting or employment
agreement, if any) will affect, or be used to interpret, change or restrict, the
express terms and provisions of this agreement.
(h) The terms and provisions of this agreement may be modified or
amended only by written agreement executed by the parties hereto.
(i) The terms and provisions of this agreement may be waived, or
consent for the departure there from granted, only by written document executed
by the party entitled to the benefits of such terms or provisions. No such
waiver or consent will be deemed to be or will constitute a waiver or consent
with respect to any other terms or provisions of this agreement, whether or not
similar. Each such waiver or consent will be effective only in the specific
instance and for the purpose for which it was given, and will not constitute a
continuing waiver or consent.
(j) Subject to Section 4(d), all statements, representations,
warranties, covenants and agreements in this agreement will be binding on the
parties hereto and will inure to the benefit of the respective successors and
permitted assigns of each party hereto. Nothing in this agreement will be
construed to create any rights or obligations except between CHINA FINANCE, INC.
and you, and no other person will be regarded as a third-party beneficiary of
this agreement.
(k) This Agreement and the rights and obligations of the parties
hereunder will be construed in accordance with and governed by the law of
California, without giving effect to the conflict of law principles thereof. Any
legal action or proceeding with respect to this agreement will be brought in a
federal or state court of competent subject matter jurisdiction sitting in New
Jersey. By execution and delivery of this agreement, each of the parties hereto,
expressly and irrevocably (i) consents and submits to the exclusive personal
jurisdiction of any such courts in any such action or proceeding; (ii) consents
to the service of any complaint, summons, notice or other process relating to
any such action or proceeding by delivery thereof to such party as set forth in
Section 4(f) hereof; and (iii) waives any claim or defense in any such action or
proceeding based on any alleged lack of personal jurisdiction, improper venue,
forum non convenience or any similar basis.
(l) ANY ACTION, DEMAND, CLAIM OR COUNTERCLAIM ARISING UNDER OR
RELATING TO THIS AGREEMENT WILL BE RESOLVED BY A JUDGE ALONE AND EACH OF YOU AND
CHINA FINANCE, INC. WAIVE ANY RIGHT TO A JURY TRIAL THEREOF.
(m) The parties intend this agreement to be enforced as written.
However, if any portion or provision of this agreement is to any extent declared
illegal or unenforceable by a duly authorized court having jurisdiction, then
the remainder of this agreement, or the application of such portion or provision
in circumstances other than those as to which it is so declared illegal or
unenforceable, will not be affected thereby, and each portion and provision of
this agreement will be valid and enforceable to the fullest extent permitted by
law.
(n) The headings and captions of the various subdivisions of this
agreement are for convenience of reference only and will in no way modify or
affect the meaning or construction of any of the terms or provisions hereof.
(o) No failure or delay by a party hereto in exercising any right,
power or remedy under this agreement, and no course of dealing between the
parties hereto, will operate as a waiver of any such right, power or remedy of
the party. No single or partial exercise of any right, power or remedy under
this agreement by a party hereto, nor any abandonment or discontinuance of steps
to enforce any such right, power or remedy, will preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto will not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
agreement will entitle the party receiving such notice or demand to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand.
(p) This Agreement may be executed in two or more counterparts, and
by different parties hereto on separate counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
Kindly acknowledge your acceptance of this agreement by signing this
agreement where indicated and returning it to the undersigned.
CHINA FINANCE, INC.
By:______________________________
Director
Agreed and Accepted:
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Name: Xxxxxxx Xx
Signature:_______________________
Date:___________________________
