EXHIBIT 10.4
NONCOMPETITION, NONDISCLOSURE AND INVENTIONS AGREEMENT
The undersigned, in consideration of and as a condition of my employment
with Total, Ltd., a North Carolina corporation (the "Company"), does hereby
agree with the Company as follows:
1. During the period of my full time employment by the Company, I will
devote my full time and best efforts to the business of the Company and I agree
that I will not, directly or indirectly, alone or as a partner, officer,
director, employee, consultant, agent, independent contractor or shareholder of
any company or business organization, engage in any business activity which is
directly or indirectly in competition with the products and services being
developed, manufactured, marketed, sold or otherwise provided by the Company or
which is directly or indirectly detrimental to the business of the Company;
provided, however, that the record or beneficial ownership by me of 1 % of less
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of the outstanding publicly traded capital stock of any such company shall not
be deemed to be in violation of this Section 1, provided that I am not an
officer, director or employee of such company.
2. For the shorter of (i) the period of time that the Company continues
paying my base salary in effect prior to such termination or (ii) a period of
two (2) years after the termination or cessation of my employment with the
Company for any reason, I agree that I will not, directly or indirectly, alone
or as a partner, officer, director, employee, consultant, agent, independent
contractor or shareholder of any company or business organization, engage in any
business activity which is directly or indirectly in competition with the
products or services being developed, manufactured, marketed, sold or otherwise
provided by the Company ("Competitive Activity") in any of the following
geographic areas: (1) North Carolina, (2) any state in which the Company is
actively providing services, (3) any state in which the Company is actively
soliciting customers with a view toward providing services, (4) any country in
which the Company is actively providing services and (5) any country in which
the Company is actively soliciting customers with a view toward providing
services. I further agree that, for the shorter of (i) the period of time that
the Company continues paying my base salary in effect prior to such termination
or (ii) a period of two (2) years after the termination or cessation of my
employment with the Company for any reason, I will not in any capacity, either
separately, jointly or in association with others, directly or indirectly,
solicit or contact in connection with, or in furtherance of, a Competitive
Activity any of the Company's employees, consultants, agents, suppliers or
customers with respect to the Company at any time during the one year
immediately preceding the date of my termination of employment or that become
such with respect to the Company at any time during the one year immediately
following the date of my termination. My obligations under this Section 2 shall
survive the termination or cessation of my employment and shall be binding upon
my heirs, executors and administrators.
3. For the purposes of Sections 1 and 2 of this Agreement, a business
shall be deemed to be in competition with the Company only if the products or
services of such
business are substantially similar in function or capability to the products or
services then being developed, manufactured, marketed, sold or otherwise
provided by the Company.
4. Except as required by law, I will not, whether during or after the
termination or cessation of my employment, reveal to any person, association or
company any of the trade secrets or confidential information concerning the
organization, business or finances of the Company so far as they have come or
may come to my knowledge, except as may be required in the ordinary course of
performing my duties as an employee of the Company or except as may be in the
public domain through no fault of mine or as required to be disclosed by law or
court order, and I shall keep secret all matters entrusted to me and shall not
use or attempt to use any such information in any manner which may injure or
cause loss or may be calculated to injure or cause loss whether directly or
indirectly to the Company.
Further, I agree that during my employment I shall not make, use or permit
to be used any notes, memoranda, drawings, specifications, programs, data or
other materials of any nature relating to any matter within the scope of the
business of the Company or concerning any of its dealings or affairs otherwise
than for the benefit of the Company. I further agree that I shall not, after
the termination of my employment, use or permit to be used any such notes,
memoranda, drawings, specifications, programs, data or other materials, it being
agreed that any of the foregoing shall be and remain the sole and exclusive
property of the Company and that immediately upon the termination or cessation
of my employment I shall deliver all of the foregoing, and all copies thereof,
to the Company, at its main office.
5. If at any time or times during my employment, I shall (either alone or
with others) make, conceive, discover, reduce to practice or become possessed of
any invention, modification, discovery, design, development, improvement,
process, formula, data, technique, know-how, secret or intellectual property
right whatsoever or any interest therein (whether or not patentable or
registrable under copyright or similar statutes or subject to analogous
protection) (herein called "Inventions") that relates to the business of the
Company or any of the products or services being developed, manufactured,
marketed, sold or otherwise provided by the Company or which may conveniently be
used in relation therewith, or results from tasks assigned me by the Company or
results from the use of premises or equipment owned, leased or contracted for by
the Company, such Inventions and the benefits thereof shall immediately become
the sole and absolute property of the Company, and I shall promptly disclose to
the Company (or any persons designated by it) each such Invention and hereby
assign any rights I may have or acquire in the inventions and benefits and/or
rights resulting therefrom to the Company without compensation and shall
communicate, without cost or delay, and without publishing the same all
available information relating thereto (with all necessary plans and models) to
the Company. I hereby further represent and acknowledge that any and all such
Inventions made, conceived, discovered or reduced to practice prior to the date
hereof, whether or not I am the named inventor, are owned solely by the Company,
and that I have no right, title or interest therein, and I agree that upon the
request of the Company, and without any compensation to me, I will take such
action and execute such documents as the Company may request to evidence and
perfect the Company's ownership of such Inventions.
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I will also promptly disclose to the Company and the Company hereby agrees
to receive all such disclosures in confidence, any other invention,
modification, discovery, design, development, improvement, process, formula,
data, technique, know-how, secret or intellectual property right whatsoever or
any interest therein (whether or not patentable or registrable under copyright
or similar statutes or subject to analogous protection) made, conceived,
discovered, reduced to practice or possessed by me (either alone or with others)
at any time or times during my employment for the purpose of determining whether
they constitute "Inventions," as defined herein.
With respect to all Inventions, I will, at the request and cost of the
Company, sign, execute, make and do all such deeds, documents, acts and things
as the Company and its duly authorized agents may reasonably require:
(a) to apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) letters patent, copyrights or other
analogous protection in any country throughout the world and when so obtained or
vested to renew and restore the same; and
(b) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications for
revocation of such letters patent, copyright or other analogous protection.
In the event the Company is unable, after reasonable effort, to secure my
signature on any letters patent, copyright or other analogous protection
relating to an Invention, whether because of my physical or mental incapacity or
for any other reason whatsoever, I hereby irrevocably designate and appoint the
Company and its duly authorized officers and agents as my agent and attorney-in-
fact, to act for and in my behalf and stead to execute and file any such
application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent, copyright or other
analogous protection thereon with the same legal force and effect as if executed
by me.
6. I agree that any breach of this Agreement by me could cause
irreparable damage and that in the event of such breach the Company 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 my obligations
hereunder.
7. I understand that this Agreement does not create an employment
agreement with the Company. The undersigned acknowledges that he is an at-will
employee of the Company.
8. I represent that the inventions and developments identified in the
pages, if any, attached hereto comprise all the inventions and developments
which I have made or conceived prior to my employment by the Company, which
inventions and developments are excluded from this Agreement. I understand that
it is only necessary to list the title of such inventions and developments and
the purpose thereof but not details of the invention or development itself. IF
THERE ARE ANY SUCH INVENTIONS TO BE EXCLUDED,
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THE UNDERSIGNED SHOULD INITIAL HERE. OTHERWISE IT WILL BE DEEMED THAT THERE ARE
NO SUCH EXCLUSIONS.
I further represent that my performance of all the terms of this Agreement,
and my performance as an employee of the Company, does not and will not breach
any agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not
entered into, and I agree I will not enter into, any agreement either written or
oral in conflict herewith.
I further represent that if the representations set forth in the preceding
paragraph are inapplicable, I have attached hereto a copy of each agreement, if
any, which presently affects my compliance with the terms of this Agreement
(such copy specifies the other contracting party or employer, the date of such
agreement, the date of termination of any employment). IF THERE ARE ANY SUCH
AGREEMENTS, THE UNDERSIGNED SHOULD INITIAL HERE. OTHERWISE IT WILL BE DEEMED
THAT THERE ARE NO SUCH AGREEMENTS.
9. Any waiver by the Company of a breach of any provisions of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
hereof.
10. I hereby agree that each provision herein shall be treated as a
separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
Moreover, if one or more of the provisions contained in this Agreement shall for
any reason be held to be excessively broad as to scope, duration, territory,
activity or subject so as to be unenforceable at law, such provision or
provisions shall be construed by the appropriate judicial body by limiting and
reducing it or them, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear. In particular, in the event that the
provisions of Section 2 are found to be unenforceable or void (either in whole
or in part) then the offending portion shall be construed as valid and
enforceable only to the extent permitted by law, and the balance of this
Agreement will remain in full force and effect. It is the intention of the
parties to restrict the activities of the undersigned only to the extent
necessary to protect the legitimate business interests of the Company and not to
deprive the undersigned of the right to earn a livelihood. I agree that this
Agreement is reasonably necessary to protect the Company's legitimate business
interests.
11. My obligations under this Agreement shall survive the termination or
cessation of my employment regardless of the manner of such termination or
cessation and shall be binding upon my heirs, executors and administrators.
12. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of North Carolina.
13. The term "Company" shall include Total Ltd., a North Carolina
corporation, and any of its subsidiaries, subdivisions or affiliates. The
Company shall have the right to
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assign this Agreement to its successors and assigns, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by said
successors or assigns.
14. For purposes of this Agreement (other than Section 1), the term
"employment" shall also mean any period of consultancy with the Company.
15. I acknowledge that the execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated by that certain
Investment Agreement, dated as of June 2, 1997, among the Company and the
purchasers named therein (the "Purchasers"). I agree that no amendment,
modification or waiver of any of my obligations under this Agreement shall be
valid unless made in writing and signed by me, the Company and those Purchasers
who hold a majority of the shares of Preferred Stock of the Company held by all
Purchasers.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
2/nd/ day of June 1997.
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TOTAL LTD.
By: /s/ Xxxxx Xxxxxxx III
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Name: Xxxxx Xxxxxxx III
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Title: CEO
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EMPLOYEE:
/s/ Xxxxxx Xxxxxxxxxx
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Printed Name: Xxxxxx Xxxxxxxxxx
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