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Exhibit 10.24
NONCOMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION,
CONFIDENTIALITY AND INVENTIONS AGREEMENT
This Agreement is made as of August 31, 1998, by and between Nextera
Enterprises, L.L.C., a Delaware limited liability company, and the undersigned
Executive. In consideration of the employment and continued employment of
Executive by Nextera Enterprises L.L.C., its successors, subsidiaries and
affiliates (collectively, "Nextera"), the Executive agrees to certain
restrictions on activities necessary to avoid conflicts of interest, ensure the
exclusivity of Executive's services and protect the goodwill, confidential
information, and legitimate business interests of Nextera and its clients. To
further these objectives, the Executive agrees to comply with the following
provisions of this Agreement ("Agreement") as follows:
NONCOMPETE/EXCLUSIVITY
1. During the period of employment by Nextera:
(a) the Executive will devote substantially all of the
Executive's business time to the business of Nextera in
accordance with Section 5 of the Executive's Employment
Agreement with SC/NE, LLC of even date herewith;
(b) will not engage in any business activity, current or
proposed, which competes with the services or products
being developed, marketed or sold by Nextera;
(c) will not, without prior written consent of Nextera,
invest in, enter into or assist any venture, enterprise,
or endeavor which competes or intends to compete with
Nextera, other than as a less than five percent (5%)
stockholder of a publicly held company or a stockholder
of a publicly held company which derives none or an
immaterial portion (i.e., less than ten percent (10%)) of
its revenues from services which compete with the
services of Nextera
2. The Executive represents that, to the best of the Executive's
knowledge, employment by Nextera will not conflict with any
agreement to which the Executive is subject.
NON-SOLICITATION
1. The Executive acknowledges that the names and details of the
firms with whom he has dealings while employed by Nextera
constitute trade secrets belonging to Nextera. In order to
preserve Nextera's trade secrets, during employment with Nextera
and for a period of two years after termination of the
Executive's employment with Nextera for any reason:
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(a) the Executive will not solicit or cause to be solicited,
or aid in the solicitation of business from firms for
which the Executive did work or from whom the Executive
actively solicited business during the Executive's
employment with Nextera or any of its subsidiaries or
affiliates;
(b) the Executive will not directly or indirectly contact or
solicit any employee of Nextera with regard to present,
future or contemplated employment opportunities on behalf
of himself, or any other person, firm, corporation,
governmental agency or other entity.
PROPRIETARY INFORMATION
1. Proprietary Information refers to any information, not generally
known in the relevant trade or industry, which was obtained from
Nextera or any of its clients, past, present, or prospective,
other than information that is or becomes known to the public or
trade through no breach of this Agreement by the Executive.
2. Proprietary Information includes, but is not limited to, the
following items, whether or not labeled as such: customer lists,
notes, drawings and writings; computer programs (including source
and object codes), algorithms, systems, tools, spreadsheets,
related documentation such as user manuals, functional and
technical specifications, system descriptions, program
documentation, output reports, terminal displays, and data file
contents; plans, process and preparations for Nextera's current
and proposed business activities; discoveries, inventions,
developments, ideas, research, engineering, designs, and
products; projects and improvements made or conceived in
connection with Nextera's customer and prospective customer's
lists; and marketing and financial data of Nextera and its
clients.
3. The Executive agrees not to disclose the existence of or contents
of any documents, records, discs, tapes, and other media that
contain Proprietary Information, and will not copy or remove any
such material from Nextera or its client's premises, except as
required by the Executive's duties or as approved by an
authorized officer of Nextera.
4. The Executive agrees to comply with all restrictions and
regulations of Nextera's clients concerning any and all
information such clients deem proprietary or confidential.
5. The Executive agrees that any material relating to any matter
within the scope of the business of Nextera, and any materials of
clients of Nextera, is and shall remain the property of Nextera
or such clients, as the case may be, and that upon termination of
employment or at any earlier time as requested by Nextera, the
Executive will immediately deliver such material and all copies
in Executive's possession or control to Nextera or such clients,
as the case may be.
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6. Nextera may provide the Executive with equipment (portable
personal computer, software, etc.) for Executive's use in the
course of employment by Nextera. The Executive acknowledges that
any such equipment will remain the exclusive property of Nextera,
and the Executive agrees to deliver such equipment to Nextera, as
directed by Nextera, upon termination of employment for any
reason, or at any time upon request of Nextera.
CONFIDENTIALITY
1. Except in connection with the Executive's duties for Nextera, the
Executive will not use or disclose to anyone outside Nextera, and
will not use any Proprietary Information or material relating to
the business of Nextera, or its clients, either during or after
employment by Nextera, except with the written permission of
Nextera.
2. The Executive will not disclose to Nextera, and will not induce
Nextera to use any confidential information or material belonging
to others where such disclosure would, to the Executive's
knowledge, violate any rights of, or any duty owing to, a third
party.
3. The Executive agrees not to discuss any information or respond to
any inquiries from the press or other information agencies
regarding Nextera without the express permission of Nextera,
other than responding in the ordinary course of business to
inquiries regarding the consulting industry generally or work
done for clients of SC/NE, LLC.
4. The Executive shall be permitted to give testimony and appear as
a witness in any proceeding in which such testimony or appearance
is required by law, provided the Executive reasonably furnishes
notice to Nextera in order to enable Nextera to seek a protective
order, if applicable.
INVENTIONS
1. The Executive agrees to disclose promptly and fully to Nextera
all developments, inventions, discoveries, improvements, and
proposals for new programs, systems, services, products, tools,
or business endeavors which are related to any business activity
by Nextera, current or proposed (collectively called
"Developments").
2. The Executive hereby assigns to Nextera the Executive's entire
right, title, and interest in each and every work product or
Development related to any business activity by Nextera, current
or proposed (collectively called "Work Product"):
(a) made, developed or conceived solely by the Executive or
jointly with others during or in the course of the
Executive's employment by Nextera,
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(b) made, developed or conceived wholly or partially as the
result of any task assigned to the Executive or any work
performed by the Executive for or on behalf of Nextera or
its clients, and/or
(c) made or developed with the use of Nextera facilities or
equipment.
3. The Executive agrees to grant to Nextera a right of first refusal
to market on a mutually agreed royalty basis, and a perpetual
non-exclusive license to use, each and every Work Product or
Development made, developed or conceived by the Executive during
employment by Nextera which is not covered under the preceding
paragraph.
4. During employment with Nextera, the Executive agrees to provide
Nextera with copies of any manuscripts produced by the Executive
relating to the business of Nextera or which refers to Nextera in
any manner for approval by Nextera prior to submission for
publication.
5. The Executive does not, however, assign any Developments, if any,
relating in any way to Nextera business which were made prior to
employment with Nextera, which Developments, if any, are
identified on Exhibit A, attached to this Agreement.
GENERAL
1. The Executive's obligations under this Agreement shall survive
the termination of employment. The Executive understands that
this Agreement does not create an obligation of Nextera or any
other party to continue employment.
2. Nextera shall have the unrestricted right to assign this
Agreement to its parent company, its affiliates, and any and all
successors in interest.
3. It is agreed that Nextera may inform any person or entity
subsequently employing or evidencing an intention to employ,
Executive of the nature of the information Nextera asserts to be
confidential, and may inform said person or entity of the
existence of this Agreement, and provide to such persons or
entity a copy of this Agreement.
4. Any breach of this Agreement by the Executive may cause
irreparable damage, and in the event of such a breach, Nextera
shall have, in addition to any remedies at law, the right to an
injunction to prevent or restrain a breach of the Executive's
obligations hereunder.
5. Nextera's failure to exercise any rights under this Agreement
does not constitute a waiver of such right in the event of a
subsequent violation of this Agreement.
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6. This Agreement shall be governed by the laws of the state of
Executive's employment.
7. In the event a court of competent jurisdiction shall determine
that any provision in this Agreement is too restrictive in scope
or duration, then that court shall have the power to alter such
provision to make it enforceable to the fullest extent permitted
by law. Such a determination shall not have the effect of
rendering any other provision herein contained invalid.
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INTENDING TO BE LEGALLY BOUND by this Agreement and IN WITNESS THEREOF,
the undersigned parties have executed this Agreement as of this 31st day of
August, 1998.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
ACCEPTED:
NEXTERA ENTERPRISES, L.L.C.
/s/ XXXXXXX X. XXXXXXXXX
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By: Xxxxxxx X. Xxxxxxxxx
Its: Chief Financial Officer
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