Exhibit 10.18
[THE MURRAYHILL COMPANY LOGO]
EXECUTION COPY
AGREEMENT FOR THE PROTECTION OF TRADE SECRETS
This AGREEMENT (the "Agreement") is made and entered into as of May
24, 2004 between The Murrayhill Company, a Colorado corporation ("Murrayhill")
and Xxxxxxxx Xxx Xxxxx ("Employee" and collectively with Murrayhill, the
"Parties").
WHEREAS, Employee is currently employed by Murrayhill in an executive
management position with authority and responsibility for formulating and
effectuating management policies by expressing or making operative decisions for
Murrayhill;
WHEREAS, Employee acknowledges that she has access to certain
confidential and proprietary information and trade secrets of Murrayhill, as
described in further detail in Paragraph 5 of this Agreement ("Trade Secrets"),
which information Employee expressly acknowledges has and will remain under the
full control of Murrayhill and shall remain confidential and/or of limited
availability;
NOW THEREFORE, in consideration of being employed by Murrayhill at an
annualized salary of $232,000, being permitted to have and continue to have
access to Murrayhill's Trade Secrets, and the purchase price (the "Purchase
Price") paid to Employee by Murrayhill for Employee's common stock pursuant to
the Stock Purchase and Redemption Agreement, dated as of May 24, 2004 by and
among Murrayhill, the Stockholders named therein, and the Investors named
therein, Employee and Murrayhill agree as follows:
1. For the purposes of this Agreement, "Murrayhill" shall be construed to
mean The Murrayhill Company and/or any of its Affiliates. The term
"Affiliate" shall mean: (i) any person or entity directly or
indirectly controlled by, controlling, or under the common control of
Murrayhill; and (ii) any officer, director, employee, or trustee of
Murrayhill.
2. Employee agrees that she will be employed by Murrayhill on an at-will
basis in an executive management position with authority and
responsibility for formulating and effectuating management policies by
expression or making operative decisions for Murrayhill within the
meaning of Section 8-2-113 of the Colorado Revised Statutes.
[THE MURRAYHILL COMPANY LOGO]
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3. Employee agrees that the employment and compensation to be provided to
her by Murrayhill, access to some or all of the Trade Secrets, and the
Purchase Price is adequate consideration for agreeing to be bound by
the terms of this Agreement.
4. During such time as Employee is employed by Murrayhill, Employee shall
(i) devote her full business time, attention, skill and efforts to the
business and affairs of Murrayhill, and (ii) discharge such services
in a diligent, trustworthy, businesslike, and efficient manner and to
the best of her abilities.
5. Employee agrees that this is a contract for the protection of trade
secrets within the meaning of Section 8-2-113 of the Colorado Revised
Statutes. Employee has been provided with, and has read, Sections
8-2-113 and 7-74-102(4) of the Colorado Revised Statutes, a copy of
which are attached to this Agreement as Attachment A. Employee is
hereby advised by Murrayhill to seek the advice of a legal counsel
prior to signing this Agreement, if she so desires.
6. For the purposes of this Agreement, "Business" shall mean: (i) the
tracking, monitoring, reporting on, and/or advising on the performance
of mortgage- and/or asset-backed securities, and/or the servicing
thereof, for third parties on a fee-for-service basis; (ii) the
accounting, reconciliation and/or resolving of discrepancies between
servicers, master servicers, trustees, and/or other transaction
fiduciaries, or their reports; (iii) the provision of securities or
other asset valuation or "xxxx to market" services for owners of
investment portfolios on a fee for service basis; and (iv) accounting
and reconciliation of all cash-flow-related aspects of asset-backed
and/or mortgage-backed securitizations.
7. For the purposes of this Agreement, "Trade Secrets" shall include any
and all information, whether oral or written, including, concerning,
or relating to:
i. Contracts between Murrayhill and its customers/clients;
ii. The pricing of services provided by Murrayhill;
iii. The business strategy and plans of Murrayhill;
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iv. Customer and/or client lists, lists of prospective customers
and/or clients, employee lists (which includes the name,
address, email address, telephone and/or fax number), or any
other third-party contact information belonging to
Murrayhill;
v. Payment formulae;
vi. Software and computer programs developed by Murrayhill;
vii. Business forms or procedures developed by Murrayhill;
viii. The details of any product or service currently offered by
Murrayhill, or developed or in development by Murrayhill
during the period in which Employee is employed by
Murrayhill;
ix. Financial information regarding Murrayhill and/or its
customers or clients;
x. Methods utilized by Murrayhill to conduct or obtain
business;
xi. Staffing, hiring, and personnel management methods of
Murrayhill;
xii. Identities of the shareholders of Murrayhill;
xiii. Designs or processes related to the operation of
Murrayhill's business;
xiv. Formulae or algorithms developed by Murrayhill;
xv. Plans, devices, or material of Murrayhill, whether patented
or patentable, copyrighted or copyrightable;
xvi. The business or personal affairs of any individual, client,
or entity doing business with Murrayhill.
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Should it be subsequently determined by a court of competent
jurisdiction that any one of the foregoing items does not constitute a
Trade Secret, Employee expressly agrees that such court may exclude
one or more items in the definition of "Trade Secret" to the extent
necessary to make this Agreement reasonable and enforceable.
8. Employee acknowledges and admits that the Trade Secrets constitute
information that is valuable to Murrayhill and are subject to
reasonable precautions taken by Murrayhill to keep such information
confidential and/or secret. Employee also acknowledges and agrees that
the Trade Secrets are used in Murrayhill's Business and give
Murrayhill an advantage over competitors who do not know, use, or have
access to the Trade Secrets. For these reasons, Employee acknowledges
and agrees that the Trade Secrets are trade secrets within the meaning
of Sections 7-74-102(4) and 8-2-113(2)(b) of the Colorado Revised
Statutes. Employee expressly agrees that the confidential nature of
the "Trade Secrets" shall not be subject to contest.
9. Employee agrees to treat Murrayhill's Trade Secrets in confidence and
to undertake the following obligations with respect to the Trade
Secrets:
i. To use the Trade Secrets only for purposes in furtherance of
the Business of Murrayhill and to not use in any manner
whatsoever any Trade Secrets for the direct or indirect
benefit of Employee or any person or entity other than
Murrayhill;
ii. Not to make or disseminate copies, in whole or in part, in
paper or electronic format, embodying any Trade Secrets,
except to a current employee of Murrayhill or as expressly
permitted by an officer of Murrayhill and absolutely
necessary for Employee to perform her duties as an employee
of Murrayhill;
iii. Except at the direction of an officer of Murrayhill, not to
divulge to any person or entity other than a current
employee of Murrayhill, nor use for Employee's own benefit,
or for the benefit of any third party, any Trade Secrets
and/or other proprietary information as may exist or may be
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[THE MURRAYHILL COMPANY LOGO]
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developed from time to time during Employee's employment by
Murrayhill.
iv. To return the Trade Secrets, including all copies and
records thereof, to Murrayhill upon receipt of request from
an officer of Murrayhill, or immediately upon the
termination of the Employee's employment by Murrayhill,
whichever comes first.
v. To refrain from any acts or omissions that would reduce the
value of the Trade Secrets to Murrayhill.
vi. Not to remove from the premises of Murrayhill any Trade
Secrets that are fixed in any tangible or electronic form,
without the prior written permission of an officer of
Murrayhill. For the purposes of this Section, "remove" shall
include, but not be limited to, forwarding any material
related to a Trade Secret through electronic mail.
10. This Agreement imposes no obligation upon Employee with respect to
information that:
i. Was lawfully in Employee's possession prior to being
employed by Murrayhill;
ii. Lawfully is, or lawfully becomes, a matter of public
knowledge, in the form in which it was obtained from
Murrayhill, through no fault of Employee or as a result of
the direct or indirect breach of this Agreement by Employee;
iii. Is disclosed by operation of law; or
iv. Is disclosed by Employee with the prior written approval of
an officer of Murrayhill.
11. In order to protect the Trade Secrets, Employee expressly covenants
and agrees that from the date of this Agreement and continuing for a
period of two years after Employee is no longer employed by
Murrayhill, regardless of the reason for such separation, Employee
shall not:
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i. On Employee's own behalf or on behalf of or in conjunction
with any other person, partnership, firm, corporation, or
other entity, solicit, divert, take away, or attempt to take
away from Murrayhill, the business of any person,
partnership, firm, corporation, or other entity that is or
has been a customer of Murrayhill;
ii. Own, manage, operate, control, participate in, or be
connected with as an officer, director, employee, partner,
creditor, or guarantor of any person, partnership, firm,
corporation, or other entity that is engaged in, or intends
to become engaged in, activities substantially similar to
Murrayhill's Business, or which competes with Murrayhill's
Business; or
iii. On Employee's own behalf or on behalf of or in conjunction
with any person, partnership, firm, corporation, or other
entity, solicit, entice, employ, or endeavor to employ any
of Murrayhill's employees or persons that were employed by
Murrayhill within six months.
12. Employee expressly acknowledges and agrees that because Murrayhill's
Business is not geographically limited, but applicable to certain sectors of the
financial services industry that exist worldwide, a geographic limitation on the
terms of Paragraph 9 is not practical and if one were to be imposed it would not
adequately protect the interests of Murrayhill. In addition, Employee expressly
acknowledges and agrees that because Murrayhill's Business is a very small part
of the financial services industry and subject to no substantial competition, a
two-year agreement not to compete is reasonable.
Should it be subsequently determined by a court of competent jurisdiction that
either the geographic scope or duration is unreasonable and/or unenforceable,
Employee expressly agrees that, without otherwise affecting the validity or
enforceability of this Agreement, such court may adjust either the geographic
scope (first to the regions in which the clients of Murrayhill are located), or
the duration of the Employee's agreement not to compete, or both, to the extent
necessary to make the scope and duration reasonable and enforceable.
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[THE MURRAYHILL COMPANY LOGO]
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13. Employee acknowledges that all right, title, and interest in any
designs, practices, software, methods of doing business, processes, apparatus,
improvements in existing proprietary methods and technology, and inventions (all
of which are hereinafter referred to as "Inventions") that Employee conceives,
develops, or makes, either solely or jointly with any third party (including any
Murrayhill employees and/or consultants to Murrayhill) during her period of
employment shall be, and shall remain after such period of employment, the sole
property of Murrayhill.
14. Employee acknowledges that Murrayhill is and shall remain the
exclusive owner of all intellectual property rights, including without
limitation, all right, title, and interest in patents, copyrights, and trade
secrets in existing proprietary methods and technology (collectively,
"Intellectual Property") intended for use in performing its Business.
15. All right, title, and interest in copyrightable material, including
computer programs, that Murrayhill or Employee shall fix in a tangible medium,
either solely or jointly with any third party (including any Murrayhill
employees and/or consultants to Murrayhill), including derivative works, and
which arise out of Murrayhill's Business, are to be considered as work made for
hire and shall be the property of Murrayhill.
16. Employee hereby agrees to assign to Murrayhill any and all right,
title, and/or interest Employee may have in any Inventions and/or Intellectual
Property, without requirement of future consideration. Upon request of
Murrayhill, Employee agrees to take any actions, including execution and
delivery of any instruments of conveyance, as may be deemed appropriate by
Murrayhill to give full and proper effect to such assignment.
17. Employee acknowledges that a violation of any of the provisions of
this Agreement will cause immediate and irreparable damage to Murrayhill and its
successors and assigns, and that an award of damages may be inadequate to
compensate Murrayhill for the loss caused by such violation. Employee
acknowledges and agrees that Employee's violation of any term of this Agreement
shall entitle Murrayhill or its successors or assigns, in addition to any other
rights or remedies it or they may have, to an immediate temporary restraining
order and subsequent injunction restraining any further violation.
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Murrayhill, and its successors and assigns, shall have the right to seek damages
suffered as a result of any breach of this Agreement, including but not limited
to, losses attributed to an increase in competition, damages for the loss and/or
value of Trade Secrets, and all damages consequential to such breach.
18. The obligations of Employee set forth in this Agreement are
independent of any other covenant or promise by Employee, and the existence of
any claim or cause of action against Murrayhill or any company affiliated or
otherwise related to Murrayhill, whether predicated on this Agreement or any
other agreement, or otherwise, shall not constitute a defense to the enforcement
of this Agreement.
19. No rights or licenses, express or implied, are hereby granted to
Employee under any patents, copyrights, or other Trade Secrets as a result of or
related to this Agreement.
20. EMPLOYEE AND MURRAYHILL EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO.
21. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
22. Employee and Murrayhill expressly agree that any claim or dispute of
any nature between the Parties hereto arising directly or indirectly from the
relationship created by this Agreement shall be resolved exclusively by
arbitration in Denver, Colorado, in accordance with the applicable rules of the
American Arbitration Association. The fees of the arbitrator(s) and other costs
incurred by the Parties in connection with such arbitration shall be paid by the
Party that is unsuccessful in such arbitration. The decision of the
arbitrator(s) shall be final and binding upon both Parties. Judgment of the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. In the event of submission of any dispute to arbitration,
each Party shall, not later than 30 days prior to the date set for hearing,
provide to the other Party and to the arbitrator(s) a copy of all exhibits upon
which the Party intends to rely at the hearing and a list of all persons each
Party intends to call at the hearing.
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23. In the event that legal action is brought to enforce or interpret this
Agreement or to seek damages or any other remedy as a result of the breach of
this Agreement, the court shall award Murrayhill, should it be successful in
such legal action, its reasonable attorneys' fees, costs and the reasonable
costs of litigation, including costs related to pre-litigation investigation,
discovery, and any appeals.
24. This Agreement shall be binding upon, and shall inure to the benefit
of, the Parties and their respective heirs, executors, authorized
representatives, successors and assigns.
25. This Agreement may not be modified or amended except by a written
instrument duly executed by the Parties to this Agreement. No waiver of
compliance with any provision or condition hereof, or the later enforcement of
any provision or condition previously waived, shall bar enforcement with respect
to any subsequent breach.
26. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter hereof and supersedes any prior or
contemporaneous agreement or understanding, whether written or oral, between the
Parties with respect to the subject matter of this Agreement.
27. This Agreement may be executed in counterparts, each of such
counterparts, when together, shall represent the binding agreement of the
Parties to this Agreement.
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AGREEMENT FOR THE PROTECTION OF TRADE SECRETS 9
[THE MURRAYHILL COMPANY LOGO]
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IN WITNESS WHEREOF, the parties to this Agreement have caused their names to be
signed hereto as of the date first above written.
EMPLOYEE
XXXXXXXX XXX XXXXX
Signature: /s/ Xxxxxxxx Xxx Xxxxx
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THE MURRAYHILL COMPANY
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its President and General Counsel
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AGREEMENT FOR THE PROTECTION OF TRADE SECRETS 10
