CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT, dated as of
April 4, 2000 (the "Effective Date"), by and between Cyber Dialogue, Inc.
(together with its subsidiaries, the "Company") and Xxxx Esiri ("Esiri").
WHEREAS, Esiri is an employee of Wand Partners Inc. ("Wand");
and
WHEREAS, the Company and Wand have entered into a Management
Services Agreement dated as of February 16, 2000 (the "Management Services
Agreement"), pursuant to which Esiri will serve as Chief Executive Officer
and/or President of the Company (the "Executive Position"), Esiri's compensation
for such services will be paid by Wand and the Company agrees to reimburse Wand
promptly for such expense; and
WHEREAS, concurrently with entering into this Confidentiality
and Non-Competition Agreement, the Company has granted to Esiri an option under
the Company's Amended and Restated 2000 Stock Incentive Plan to purchase 200,000
shares of Company common stock (the "Stock Option Grant"), at an exercise price
equal to the initial public offering price of the common stock; and
WHEREAS, the execution, delivery and performance of this Confi
dentiality and Non-Competition Agreement by Esiri is a material inducement to
the Company and Wand to enter into the Management Services Agreement and a
material inducement to the Company to make the Stock Option Grant.
NOW THEREFORE, in consideration of the foregoing and of the
mutual promises hereinafter set forth, the parties hereto agree as follows:
SECTION 1. NON-COMPETITION; NON-SOLICITATION.
(a) During the period beginning on the Effective Date and
continuing while Esiri is serving in the Executive Position and for one (1) year
following the termination of Esiri from the Executive Position for any reason
whatsoever (the "Noncompetition Period"), Esiri will not, in any country or geo
graphical region in which the Company conducts or targets business, engage in
"Competition" with the Company.
For purposes of this Confidentiality and Non-Competition Agreement, Competition
by Esiri shall mean Esiri's:
(i) engaging in, including without limitation
consulting or start-up activities for Esiri's own account or any third
party, the business of providing or developing outsourced data
management platforms for manag ing customer data for marketing purposes
(such business referred to herein as a "Competing Business"); or
(ii) becoming interested in, or otherwise directly or
indirectly being employed by or acting as a consultant or lender to, or
render any services to, or being a director, officer, employee,
principal, agent, stock holder, manager, member, owner or partner of,
employer of, or permitting his name to be used in connection with the
activities of any Competing Business; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, it shall not be a violation of this
Section 1(a) for Esiri to become the registered or beneficial owner of
up to two percent (2%) of any class of the capital stock of a Com
peting Business registered under the Securities Exchange Act of 1934,
as amended, provided that Esiri does not otherwise participate in the
business of such corporation; and PROVIDED, FURTHER, that, upon the
termination of Esiri from the Executive Position, Esiri may be
employed, act as a consultant and provide other services to any Wand
portfolio company that is not a Compet ing Business; and PROVIDED,
FURTHER, that Esiri's ownership interest in Wand and entities
affiliated with Wand shall not alone constitute a violation of this
Section 1(a).
(b) during the Noncompetition Period, Esiri will not in any
manner, directly or indirectly:
(i) solicit (or cause, or authorize, to be
solicited), divert or otherwise attempt to obtain the business of any
person who is, or has at any time within one year prior to the date of
such action been, a customer, supplier, licensee or business relation
of the Company for any purpose which is competitive with the Company's
business;
(ii) intentionally disturb or attempt to disturb in
any adverse respect any business relationship between any person and
the Company;
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(iii) solicit from any customer of the Company, or
from any known potential customer of the Company, business which is in
competition with the Company's business as conducted or as proposed to
be conducted prior to Esiri's termination from the Executive Position;
(iv) seek or attempt to persuade, induce or encourage
any director, officer, employee, consultant, advisor or other agent of
the Company to discontinue his or her status or employment therewith or
to become employed or otherwise engaged in a Competing Business; and
(v) solicit or employ, or otherwise hire or engage as
an employee, independent contractor, consultant, advisor or otherwise,
any person who has been employed or otherwise engaged by the Company at
any time within the six (6) month period prior to the date of such
solicitation, employment, hiring or engagement by Esiri.
SECTION 2. CONFIDENTIALITY; INTELLECTUAL PROPERTY; DISCLOSURE.
(a) Except as otherwise provided in this Confidentiality and
Non- Competition Agreement, at all times hereafter, Esiri shall keep secret and
retain in strictest confidence, any and all Confidential Information (as
hereinafter defined) relating to the Company, and shall use such Confidential
Information only in furtherance of the performance by him of his duties in the
Executive Position and not for personal benefit or the benefit of any interest
adverse to the interests of the Company. For purposes of this Confidentiality
and Non-Competition Agreement, "Confidential Information" shall mean any
confidential or proprietary information including, without limitation, plans,
specifications, models, samples, data, customer lists and customer information,
computer programs and documentation, and other technical and/or business
information, in whatever form, tangible or intangible, printed, electronic or
magnetic, that can be communicated by whatever means available at such time,
that relates to the Company's current business or future business contemplated
during the period Esiri serves in the Executive Position, products, services
and/or developments, or information received from others that the Company is
obligated to treat as confidential or proprietary, and Esiri shall not disclose
such Confidential Information to any person other than the Company, except as
may be required by law or court or administrative order (in which event Esiri
shall so notify the Company as promptly as practicable). Upon the termination of
Esiri from the Executive Position for any reason, Esiri shall promptly return to
the Company (in the case of termination
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by the Company without cause, at the Company's expense) or destroy all copies,
reproductions and summaries of Confidential Information in his possession or
control and erase the same from all media in his possession or control, and, if
the Company so requests, shall certify in writing that he has done so. All
Confidential Information is and shall remain the property of the Company, or in
the case of information that the Company receives from a third party which it is
obligated to treat as confidential, then the property of such third party. For
purposes of this Confidentiality and Non-Competition Agreement, Confidential
Information shall not include information which (i) is or becomes generally
known or available to the public through no intentional wrongdoing, reckless
conduct or gross negligence by Esiri, (ii) is generally disclosed to third
parties by the Company without restriction on such parties (excluding
disclosures by Esiri designed to circumvent this Section 2(a)), (iii) is
approved for release by written authorization of the Chief Financial Officer or
General Counsel of the Company, (iv) is disclosed to Esiri by a third party who
is bound by no obligation of confidentiality to the Com pany and who Esiri has
no reason to believe acquired the information improperly or (v) is independently
developed by Esiri or third parties without the use of Confiden tial
Information. Disclosure of Confidential Information to Wand during the term of
the Management Services Agreement shall not constitute a violation of this
Section 2(a).
(b) All Intellectual Property (as hereinafter defined)
created, developed, co-developed or obtained by Esiri during the period Esiri
serves in the Executive Position, other than Esiri's general knowledge, skills
and experience, and all business opportunities presented to Esiri while he is in
the Executive Position, shall be owned by and belong exclusively to the Company,
provided that they reasonably relate to any of the business of the Company on
the date of such creation, development or obtaining, and Esiri shall (i)
promptly disclose any such Intellectual Property or business opportunity to the
Company, and (ii) promptly execute and deliver to the Company, without
additional compensation, such instruments as the Company may require from time
to time to evidence its ownership of any such Intellectual Property or business
opportunity. For purposes of this Confidentiality and Non-Competition Agreement,
the term "Intellectual Property" means any and all of the following and all
statutory and/or common law rights throughout the world in, arising out of, or
associated therewith: (i) all patents and applications therefor, including
docketed patent disclosures awaiting filing, reissues, divisions, renewals,
extensions, provisionals, continuations and continuations-in-part thereof; (ii)
all inventions (whether patentable or not), inventions disclosures and
improvements, all trade secrets, confidential business information (including
ideas, research and development, know-how, compositions, designs,
specifications, pricing and cost information and business and market
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plans and proposals), proprietary information, manufacturing, engineering and
technical drawings and specifications, processes, designs and technology; (iii)
all works of authorship, "moral rights," copyrights (including derivative works
thereof), mask works, copyright and mask work registra tions and applications
therefor; (iv) all trade names, trade dress, logos, product names, collective
marks, collective membership marks, trademarks certification marks and service
marks, trademark and service xxxx registrations and applications together with
the goodwill of the business symbolized by the names and the marks; (v) all data
and related documents, object code, databases, passwords, encryption technology,
firmware, development tools, files, records and data, and all media on which any
of the foregoing is recorded; (vi) any similar, corresponding or equivalent
rights to any of the foregoing; (vii) all documentation related to any of the
foregoing; and (viii) all goodwill associated with any of the foregoing.
SECTION 3. COVENANTS REASONABLE.
Esiri hereby acknowledges that the business of the Company is
highly competitive. Esiri further acknowledges that this Confidentiality and
Non-Competi tion Agreement is being entered into in connection with the
Management Services Agreement and the Stock Option Grant, that his service to
the Company will be of a special and unique character, and that he will continue
to be identified personally with the Company. Esiri also acknowledges that
service in the Executive Position will require that he have access to some of
the Company's most highly confidential business information, trade secrets and
proprietary information. The parties therefore acknowledge that the restrictions
contained in Sections 1 and 2 hereof are a reason able and necessary protection
of the immediate interests of the Company, and any violation of these
restrictions would cause substantial injury to the Company and that the Company
would not have entered into the Management Services Agreement, the Stock Option
Grant and this Confidentiality and Non-Competition Agreement without receiving
the additional consideration offered by Esiri in binding himself to any of these
restrictions.
SECTION 4. GOVERNING LAW; CONSENT TO JURISDICTION; INJUNCTIVE
RELIEF.
This Confidentiality and Non-Competition Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without regard to its conflict of laws provisions. In the
event of a breach or threatened breach by Esiri of any of these restrictions,
the Company shall be entitled to apply to any court of competent jurisdiction
for an injunction restraining Esiri from such breach or threatened breach;
PROVIDED, HOWEVER, that the right to apply for an injunction shall not be
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construed as prohibiting the Company from pursuing any other available remedies
for such breach or threatened breach.
SECTION 5. NOTICES.
Unless otherwise provided herein, any notice, exercise of
rights or other communication required or permitted to be given hereunder shall
be in writing and shall be given by overnight delivery service such as Federal
Express, telecopy (or like transmission) or personal delivery against receipt,
or mailed by registered or certified mail (return receipt requested), to the
party to whom it is given at such party's address set forth below such party's
name on the signature page or such other address as such party may hereafter
specify by notice to the other party hereto. Any notice or other communication
shall be deemed to have been given as of the date so personally delivered or
transmitted by telecopy or like transmission or on the next business day when
sent by overnight delivery service.
SECTION 6. AMENDMENT.
This Confidentiality and Non-Competition Agreement may be
amended, modified, superseded or canceled, and the terms and covenants hereof
may be waived, only by a written instrument executed by both of the parties
hereto, or in the case of a waiver, by the party waiving compliance. The failure
of either party at any time or times to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce the same.
SECTION 7. BINDING EFFECT.
This Confidentiality and Non-Competition Agreement is not
assign able by Esiri. This Confidentiality and Non-Competition Agreement shall
be binding upon and inure to the benefit of the Company and any successor
organiza tions which shall succeed to the Company by merger or consolidation or
operation of law or otherwise, or by acquisition of all or substantially all of
the assets of the Company.
SECTION 8. SEVERABILITY.
Esiri acknowledges and agrees that the restrictive covenants
and agreements contained herein are reasonable and valid in geographic and
temporal scope and in
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all other respects, and do not impose limitations greater than that are
necessary to protect the goodwill, the confidential information and any other
busi ness interests of the Company, or any of its successors or assigns. If,
however, any court subsequently determines that any of such covenants or
agreements, or any part thereof, is invalid or unenforceable, the remainder of
such covenants and agreements shall not thereby be affected and shall be given
full effect without regard to the invalid portions thereof. In addition, if any
court construes any of the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced.
SECTION 9. EXECUTION IN COUNTERPARTS.
This Confidentiality and Non-Competition Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original and all of which shall constitute one and the same instrument.
SECTION 10. ENTIRE AGREEMENT.
This Confidentiality and Non-Competition Agreement sets forth
the entire agreement, and supersedes all prior agreements and any other
agreement between the parties and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
SECTION 11. TITLES AND HEADINGS.
Titles and headings to Sections herein are for purposes of
reference only, and shall in no way limit, define or otherwise affect the
meaning or interpreta tion of any of the provisions of this Confidentiality and
Non-Competition Agreement.
SECTION 12. CONFLICTS OF INTEREST; REPRESENTATIONS AND
WARRANTIES.
Esiri specifically covenants, warrants and represents to the
Company that he has the full, complete and entire right and authority to enter
into this Confi dentiality and Non-Competition Agreement, that he has no
agreement, duty, commit ment or responsibility or obligation of any kind or
nature whatsoever with any corporation, partnership, firm, company, joint
venture or other person which would conflict in any manner whatsoever
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with any of his duties, obligations or responsibili ties to the Company pursuant
to this Confidentiality and Non-Competition Agree ment or which could interfere
with Esiri's performance under this Confidentiality and Non-Competition
Agreement, that he is not in possession of any document or other tangible
property of any other person of a confidential or proprietary nature which would
conflict in any manner whatsoever with any of his duties, obligations or
responsibilities to the Company pursuant to this Confidentiality and Non-Competi
tion Agreement and Esiri's performance of his obligations to the Company will
not breach any agreement by which Esiri is bound not to disclose any proprietary
information, and that he is fully ready, willing and able to perform each and
all of his duties, obligations and responsibilities pursuant to this
Confidentiality and Non- Competition Agreement. It is understood that Esiri's
ownership interest in and/or employment by Wand shall not constitute a violation
of the terms of this Section 12.
IN WITNESS WHEREOF, the undersigned have executed this
Confidentiality and Non-Competition Agreement.
/S/ XXXX ESIRI
------------------------------------
Name: Xxxx Esiri
Address: Cyber Dialogue, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
CYBER DIALOGUE, INC.
By:/S/ XXXXXX XXXX
---------------------------------
Name: Xxxxxx Xxxx
Title:Chief Financial Officer,
Executive Vice President and
Treasurer
Address: Cyber Dialogue, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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