STERN CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
Exhibit
4.4
I am
employed by Chardan China 2008 Acquisition Corp. (“Chardan”), DAL Group, LLC
(“DAL”), and DJS Processing, LLC (“Processing”) or one of their Affiliates
(collectively, the “Companies” and individually a “Company”). In
consideration of my employment with one or more of the Companies, I agree to the
following terms and conditions of this Confidentiality and Noncompetition
Agreement (the “Agreement”), dated January 15, 2010:
1.
Confidential
Information.
I
understand that during my employment with the Companies, I will have access to
valuable technical and non-technical information. This information
shall be referred to in this Agreement as Confidential and Proprietary
Information and shall include, but not be limited to:
(a) Information,
observations and data concerning the business and affairs of a Company obtained
by me during the course of the performance of my duties as an employee of the
Companies, including but not limited to the contact information of persons or
entities that are current, former or prospective customers, suppliers or clients
of any of the Companies during the term of my employment, development,
transition or transformation plans, methodologies and methods of doing business,
strategic, marketing and expansion plans, including plans regarding planned and
potential financial and business plans, employee lists and telephone numbers,
new and existing programs and services, prices and terms, customer service,
integration processes, requirements and costs of providing service and support,
the terms and conditions of any business transaction that the Companies have
performed or offered to perform with any client or customer of the Companies
during the term of my employment, or which I learned of while
employed;
(b) Computer/software
programs and associated documentation and material (i) which are proprietary to
the Companies, or (ii) which are proprietary to a third party from which any of
the Companies has purchased the right to use such programs or material and with
respect to which a Company is under an obligation to prevent disclosure to
persons not authorized by a Company, or the third party owner to receive such
information;
(c) Any
information or documents that relate to, refer to, contain, or constitute trade
secrets or confidential information, including, without limitation any forms,
manuals, compilations of data, summaries, printouts, contracts, agreements,
correspondence, memoranda, notes, files, invoices, price data, databases and all
copies thereof, of any kind whatsoever, whether typewritten, handwritten or
recorded electronically; and
(d) Any
confidential and proprietary information or other communications, information or
documents received from any customer of the Companies or any client of any such
customer or between any such customer and its clients (“Customer Information”);
or
(e) Any
confidential and proprietary information received by the Companies from other
third parties (“Third Party Information”).
I hereby
agree that:
1
(a) The
Confidential and Proprietary Information shall remain the sole and exclusive
property of the Companies or the third party owner of such information, and I
shall regard it as confidential and secret information.
(b) The
Confidential and Proprietary Information is properly considered to be the trade
secrets of the Companies or the third party owners in as much as it involves
processes and compilations of information which are secret, confidential and are
not generally known to the public and which are the product of expenditures of
time, effort, money and/or creative skills of the Companies or the third party
owners.
(c) The
Confidential and Proprietary Information is furnished to me during the term of
my employment on a confidential and secret basis and to be used by me solely and
exclusively in pursuing my employment duties at the Companies.
(d) I
will not during or after my employment at the Companies publish, disclose or
otherwise divulge the Confidential and Proprietary Information to any person not
specifically authorized by a Company to receive such information.
(e) I
will not copy any Confidential and Proprietary Information for any purpose other
than a purpose relating to my employment with the Companies.
(f) Upon
termination of my employment with the Companies, or at any other time at a
Company’s request, I agree to deliver promptly to the relevant Company all
manuals, letters, notes, notebooks, reports, formulae, computer programs and
associated documentation and material, memoranda, customer’s lists, diskettes or
other medium for electronic storage of information and all other materials and
all copies thereof relating in any way to the Companies, or their businesses and
in any way obtained by me during my employment at such Company which are in my
possession or under my control, including, but not limited to all Confidential
and Proprietary Information in my possession, and I will not make or retain any
copies of any of the foregoing and will so represent to such Company upon
termination of my employment.
(g) I
shall abide by and be bound by the provisions of any agreements between the
Companies and any of its customers or clients or other third parties of which I
am aware, including, but not limited to, that certain Services Agreement between
Processing and the Law Offices of Xxxxx X. Xxxxx.
2. Intellectual Property,
Inventions and Patents. I acknowledge that all discoveries,
concepts, ideas, inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports, patent applications, copyrightable work
and mask work (whether or not including any confidential information) and all
registrations or applications related thereto, all other proprietary information
and all similar or related information (whether or not patentable) which relate
to a Company’s actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by me (whether above or jointly with others) while employed by any Company,
whether before or after the date of my employment by any of the Companies (“Work
Product”), belong to one or more of the Companies. I further
acknowledge and agree that all such Work Product shall constitute “works made
for hire” under the Copyright Act of 1976. I agree to the extent such
Work Product is deemed not to be a works made for hire, that this Agreement
shall
2
constitute
an assignment to the Companies of my rights (including, but not limited to,
copyright, trademark, trade dress, trade secret, design and patent rights), if
any, in all such Work Product, I will promptly disclose such Work
Product to the Company that employed me and, at that Company’s expense, perform
all actions reasonably requested by that Company (whether during or after the
term of my employment) to establish and confirm such ownership (including,
without limitation, assignments, consents, powers of attorney and other
instruments).
3. Representations and
Acknowledgements. I represent and acknowledge
that: (i) among the Companies’ most valuable and indispensable assets
are its Confidential and Proprietary Information and its close relationships
with its customers, suppliers and employees, which the Companies have devoted
and continue to devote a substantial amount of time, money and other resources
to develop; (ii) I am in a position of trust and confidence, and by working at
the Companies, I will be exposed to and acquire the Companies’ Confidential and
Proprietary Information and develop, at the Companies’ expense, special and
close relationships with the Companies’ customers and suppliers; (iii) the
Confidential and Proprietary Information and close customer, supplier and
employee relationships must be protected; (iv) Sections 3-6 are material
provision of this Agreement and the Companies would not employ me hereunder but
for the agreements, promises and acknowledgements that I make in these Section
3-6; and (v) to the extent required by law, the covenants in this Agreement
contain reasonable limitations as to time, geographical area and scope of
activities to be restricted and that such covenants do not impose a greater
restraint on me than is necessary to protect the Companies’ Confidential and
Proprietary Information, close customer and employee relationships and other
legitimate business interests. I acknowledge that this Agreement is
being entered into by me in connection with that certain Contribution and
Membership Interest Purchase Agreement between Chardan, DAL and me, in
connection with which I have sold a portion of my interest in Processing and its
Affiliates to DAL.
4. Solicitation of
Employees.
For a
period beginning on the date hereof and ending on the later of (i) the term of
my employment with all of the Companies and (ii) two (2) years after the
termination of my employment with all of the Companies, irrespective of the
reason for the termination of my employment (the “Restrictive Period”), I will
not, directly or indirectly, on my own behalf or on behalf of anyone else,
induce, encourage or solicit any employee (which term as used in this Agreement
includes persons subject to professional employer arrangements between any
Company and a professional employer organization), independent contractor or
agent of any Company, to leave the employ of any Company or sever its agency
relationship with any Company and will not, directly or indirectly, on my own
behalf or on behalf of anyone else, employ, or be interested in, any business
that employs, any person who was an employee or agent of any Company at any time
during the six (6) months preceding the first solicitation or hiring of such
person.
5. Noncompetition
Agreement.
(a) Solicitation of Work or
Business. During the Restrictive Period, I will not, directly or
indirectly, on my own behalf or on behalf of any one else, except on behalf of a
Company, own any interest in, manage, control, participate in, consult with,
render services for, or in any other manner engage in any business within the
Territory that is competitive with the Business; provided, however, that the
foregoing shall not prohibit me from the passive ownership
3
(i.e., I
do not directly or indirectly participate in the business or management of the
applicable entity) of less than 3% of the stock of a publicly-held company whose
stock is traded on a national securities exchange or engaging in the practice of
law. I agree that this Section 4(a) is reasonable with respect to its
duration, geographical area and scope. In particular, I acknowledge
and agree that the geographic scope of this restriction is necessary to protect
the goodwill and Confidential and Proprietary Information of the
Companies.
(b) During
the Restrictive Period, I will not, directly or indirectly, on my own behalf or
on behalf of anyone else, (i) induce, encourage or solicit any customer,
supplier, licensee, licensor, or other business relation of the Companies to
cease doing or reduce its business with any of the Companies or (ii) in any way
interfere with the relationship between any such customer, supplier, licensee,
licensor or other business relation and any of the Companies (including, but not
limited to, making any negative or disparaging statements or communications
about any of the Companies); provided, however, that the foregoing shall not
prohibit me from engaging in the practice of law.
6. Remedies.
(a) Violations of Noncompetition
Agreement. I acknowledge that if I violate the terms of this Agreement,
one or more of the Companies would suffer irreparable harm, and in addition and
supplementary to other rights and remedies existing in its favor, the relevant
Company or Companies shall be entitled to specific performance and/or injunctive
or other equitable relief from a court of competent jurisdiction in order to
enforce or prevent any violations of the provisions of this
Agreement. In addition, in the event that I breach or violate this
Agreement, I agree that the Restrictive Period will be tolled until such breach
or violation has been cured. Any breach of this subparagraph (a) shall be
determined by the Board of Directors of Chardan acting in good
faith.
(b) Enforceability. If
at the time of enforcement of this Agreement, a court shall hold that the
duration, scope or area restrictions stated herein are unreasonable under the
circumstances then existing, I agree that the maximum duration, scope or area
reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law. I acknowledge and agree that the restrictions
contained in this Agreement are reasonable and that I have reviewed these
provisions with my legal counsel.
(c) Enforcement. In
the event either party resorts to legal action to enforce or interpret any
provision of this Agreement, the prevailing party will be entitled to recover
the costs and expenses of such action so incurred, including reasonable
attorney’s fees.
(d) Chardan Ordinary
Shares. If a court of competent jurisdiction finds, by a
final, non-appealable order, that I have materially breached one or more of my
obligations set forth in this Agreement, any damage award arising therefrom owed
by me to Chardan, DAL or Processing, as the case may be, may only be collected
from Chardan Ordinary Shares or Series A Preferred Shares or DAL Common or
Series A Preferred Units held by me or, at my option, cash, or a combination
thereof. For purposes of this Section 5(d), each Chardan Ordinary
Share and DAL Common Unit shall be valued at Market Price on the day prior to
the payment date and each Series A Preferred Share or DAL Series A Preferred
Unit shall be valued at $15.00.
4
7. Definitions.
(a) “Affiliate”
shall mean is a
person or entity that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
the relevant entity. Processing’s Affiliates shall include, but not be
limited to, Chardan China 2008 Acquisition Corp., DAL Group, LLC, Professional
Title and Abstract Company of Florida, LLC and Default Servicing,
LLC.
(b) “Business”
means providing (i) non-legal administrative, accounting, computer software,
hardware and network services, telecommunication services, electronic filing and
payment services and information and data collection, transmission and
processing services and document processing in support of entities conducting
residential mortgage foreclosures, bankruptcies, asset recovery and evictions,
(ii) posting, publication and service of process relating to residential
mortgage foreclosures, (iii) residential REO title services, and (iv)
residential REO management, brokerage, closing and escrow services.
(c) “Market
Price” is defined in the Amended and Restated Limited Liability Company
Agreement of DAL and, as to a DAL Common Unit, shall be the Market Value of a
Chardan Ordinary Share.
(d) “On
behalf of anyone else” means acting as an officer, director, proprietor,
employee, partner, stockholder, member, investor, consultant, advisor,
independent contractor, agent or otherwise of another person.
(e) “Territory”
means the United States and its territories and possessions.
8. Miscellaneous.
(a) Severability. If
any one or more of the terms, provisions, promises, covenants or conditions of
this letter agreement or the application thereof to any person or circumstance
will be adjudged to any extent invalid, unenforceable, void or voidable for any
reason whatsoever by a court of competent jurisdiction or an arbitration
tribunal, such provision will be as narrowly construed as possible, and each and
all of the remaining terms, provisions, promises, covenants and conditions of
this letter agreement or their application to other persons or circumstances
will not be affected thereby and will be valid and enforcement to the fullest
extent permitted by law. To the extent this letter agreement is in
violation of any applicable laws, the parties shall negotiate in good faith to
amend this letter agreement, to the extent possible consistent with its
purposes, to conform to applicable laws. Neither party shall claim or
assert illegality as a defense to the enforcement of this letter agreement or
any provision hereof.
(b) Employment Matters.
This Agreement does not constitute an employment contract. Unless
governed by a separate agreement, my employment is at will and may be terminated
by me or the Company that employs me at any time with or without notice or
cause.
5
(c) Legal
Representation. I acknowledge that I have been invited to
obtain legal representation of my own choosing to review this Agreement and the
matters related hereto.
(d) Entire Agreement;
Modifications. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
This Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.
(e) Governing Law; Venue;
Jurisdiction. This Agreement, and all matters arising under or
related hereto, shall be governed according to the laws of the State of Florida,
without respect to its conflict of law principles. Each party hereby
consents to the exclusive jurisdiction of the courts of the State of Florida and
of the United States of America in the County of Broward for any actions, suits
or proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party agrees not to commence any action, suits or
proceeding relating thereto except in such courts).
(f) Successors and
Assigns. This Agreement will be binding upon and inure to the
benefit of each Company and any successor to any of them (to which this
agreement may be assigned), including without limitation any persons acquiring
directly or indirectly all or substantially all of the business or assets of
any Company, whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed a
Company for the purposes of this Agreement). This Agreement will not
be assignable, transferable or delegable by me.
(g) Effectiveness. The
parties may execute this Agreement in separate counterparts, each of which shall
be deemed an original and all of which together will constitute one and the same
instrument. To the extent signed and delivered by means of a
facsimile machine or other electronic transmission (including transmission in
portable document format by electronic mail), this Agreement shall be treated in
all manners and respects and for all purposes as an original and shall have the
same binding legal effect as if it were the original signed version thereof
delivered in person. None of the undersigned shall raise the use of a
facsimile machine or other electronic transmission to deliver a signature or the
fact that such signature was transmitted or communicated through the use of a
facsimile machine or other electronic transmission as a defense to the
enforceability of this Agreement and each of the undersigned forever waives any
such defense
SIGNATURE
PAGE FOLLOWS
6
I certify
that I have read this Agreement and I accept and agree to its terms as of the
date first written above.
| Xxxxx X. Xxxxx | |||
| Accepted and Agreed | |||
| DAL GROUP, LLC | |||
| By: FLATWORLD DAL LLC, its Member | |||
| By: | NAGINA ENGINEERING INVESTMENT CORP., its Member | ||
|
|
By:
|
/s/ | |
| Name: Xxx X. Xxxxx | |||
| Title: President | |||
| Dated: January __, 2010 | |||
| CHARDAN 0000 XXXXX ACQUISITION CORP. | |||
|
|
By:
|
/s/ | |
| Xxxxx Xxxxxxx | |||
| Chief Executive Officer | |||
| Dated: January __, 2010 | |||
| DJS PROCESSING, LLC | |||
|
|
By:
|
/s/ | |
| Xxxxx X. Xxxxx | |||
| President | |||
| Dated: January __, 2010 | |||
7
| PROFESSIONAL TITLE AND ABSTRACT COMPANY OF FLORIDA, LLC | |||
|
|
By:
|
/s/ | |
| Xxxxx X. Xxxxx | |||
| President | |||
| Dated: January __, 2010 | |||
| DEFAULT SERVICING, LLC | |||
|
|
By:
|
/s/ | |
| Xxxxx X. Xxxxx | |||
| President | |||
| Dated: January __, 2010 | |||
8
