Exhibit 10.20
STRIKEFORCE TECHNOLOGIES INC
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (this "Agreement") is
made as of the 10th day of August, 2004, by and between STRIKE FORCE TECHNICAL
SERVICES CORPORATION d/b/a STRIKEFORCE TECHNOLOGIES INC., a New Jersey
corporation having offices at 0000 Xxxx Xxxxxx'x Xxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxx Xxxxxx 00000 (the "Employer") and (employee name), an individual resident of
[New Jersey] (the "Employee").
WHEREAS, Employee [has accepted an offer of employment with] [is currently
employed by] and the Employer desires the Employee's [continued] employment with
the Employer, provided that the Employee agrees not to compete with Employer in
the Business (as defined below) and agrees to maintain the confidentiality of
the Employer's Confidential Information (as defined below);
WHEREAS, Employee wishes to accept such [continued] employment, upon the
terms and conditions hereinafter set forth.
NOW THEREFORE, in further consideration of the mutual covenants,
agreements, representations and warranties contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
Article 1
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this ARTICLE 1:
Section 1.1. "Business" shall mean the current and planned activities of
Employer as they exist on the date of this Agreement and will exist during the
term of the employment of Employee.
Section 1.2. "directly or indirectly" means to act personally or through an
associate, affiliate, family member or otherwise, as proprietor, partner,
shareholder, director, officer, employee, agent, consultant or in any other
capacity or manner whatsoever.
Section 1.3. "Employee Invention" means any idea, invention, technique,
modification, process, or improvement (whether patentable or not), any
industrial design (whether registerable or not), and any work of authorship
(whether or not copyright protection may be obtained for it) created, conceived,
or developed by Employee, either solely or in conjunction with others, during
the term of the employment of Employee, or a period that includes a portion of
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the term of the employment of Employee, that relates in any way to, or is useful
in any manner in, the Business then being conducted or proposed to be conducted
by Employer, and any such item created by Employee, either solely or in
conjunction with others, following termination of Employee's employment with
Employer, that is based upon or uses Confidential Information.
Section 1.4. "Person" shall mean any individual, firm, corporation, general
or limited partnership, limited liability company, joint venture, estate, trust,
association, organization, or governmental body.
Article 2
CONTINUED AT-WILL EMPLOYMENT STATUS
Employee hereby acknowledges that his or her employment status shall
[continue to] be unchanged and nothing contained hereunder is intended to modify
or alter that status. This Agreement shall not confer upon Employee any right
with respect to continuance of employment by Employer, interfere in any way with
the right of Employer to terminate Employee's employment at any time, or change
Employer's policy of employment. Employee hereby agrees to continue to devote
his or her full and exclusive attention on a full time basis to the business of
Employer, to faithfully perform the duties assigned to him or her by Employer,
and to conduct himself or herself in such a way as shall best serve the
interests of Employer.
Article 3
NON-COMPETITION, CONFIDENTIALITY AND
ASSIGNMENT OF INVENTIONS
Section 3.1. Prohibition Against Competitive Activities. Employee hereby
agrees that during the term of his or her employment and for a period of one (1)
year thereafter (the "Covenant Term"), he or she will not work for any Person
which competes with Employer in the Business nor himself or herself engage
during such Covenant Term, directly or indirectly, as principal, agent, partner,
shareholder, consultant, or employee, in any such business for any Person in
competition with Employer.
Section 3.2. Non-Solicitation of Employees. Employee agrees that during the
Covenant Term, he or she will not directly or indirectly solicit, cause any
other Person to solicit or assist any other person in soliciting, the employment
of any Person who is, at the time of such solicitation, or who was within one
year of such solicitation, an officer or employee of the Employer.
Section 3.3. Non-Solicitation of Customers. Employee agrees that during the
Covenant Term, he or she will not directly or indirectly solicit, interfere,
influence, hinder, hamper or impede, or cause any other Person to solicit,
interfere, influence, hinder, hamper or impede existing or potential business
relationships between Employer and any Person who is a customer or client of
Employer.
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Section 3.4. Confidential Information. Employee agrees at all times during
the term of employment, and thereafter, to hold in strictest confidence, and not
to use, except for the benefit of Employer, or to disclose to any Person, the
Confidential Information of Employer. Employee understands that "Confidential
Information" means any proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans, products,
services, customer lists and customers (including, but not limited to, customers
of Employer with whom Employee becomes acquainted during the term of his or her
employment), software, designs, drawings, hardware and software configuration
information, marketing, financial or other business information disclosed to
Employee by Employer either directly or indirectly in writing or orally.
Confidential Information may also include proprietary information, trade secrets
or know-how received in confidence from third parties. Employee further agrees
that all memoranda, notes, records, reports, letters, and other documents made,
compiled, received, held, or used by Employee while employed by Employer
concerning any phase of the business of Employer shall be Employer's property
and shall be delivered by Employee to Employer on the termination of his or her
employment with Employer, or at any earlier time on the request of Employer.
Provided, however, that nothing in this ARTICLE 3 shall apply to information
which Employee did not acquire from Employer; information available in the
public domain; and information required to be disclosed based on the order of
any court of competent jurisdiction.
Section 3.5. Assignment of Employee Inventions. Employee hereby agrees that
each Employee Invention (relating to employer business) will belong exclusively
to Employer. Employee acknowledges that all of Employee's writing, works of
authorship, specially commissioned works, and other Employee Inventions are
works made for hire and the property of Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, Employee hereby
assigns to Employer all of Employee's right, title and interest, including all
rights of copyright, patent, and other intellectual property rights, to or in
such Employee Inventions. Employee covenants that he or she will promptly:
3.5.1. disclose to Employer in writing any Employee Invention;
3.5.2. assign to Employer or to a party designated by Employer, at
Employer's request and without additional compensation, all of Employee's right
to the Employee Invention for the United States and all foreign jurisdictions;
3.5.3. execute and deliver to Employer such applications, assignments,
and other documents as Employer may request in order to apply for and obtain
patents or other registrations with respect to any Employee Invention in the
United States and any foreign jurisdictions;
3.5.4. sign all other papers necessary to carry out the above
obligations; and
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3.5.5. give testimony and render any other assistance but without
expense to Employee in support of Employer's rights to any Employee Invention.
Section 3.6. Enforceability. Employer and Employee agree that any breach of
the covenants and agreements contained in this ARTICLE 3 will result in
irreparable injury to Employer for which money damages could not adequately
compensate Employer. Accordingly, Employee agrees that in the event of a breach
of the terms of this ARTICLE 3, in addition to and not in lieu of any other
remedies which Employer may pursue, Employer shall have the right to equitable
relief, including issuance of a temporary or permanent injunction by any court
of competent jurisdiction against the commission or continuance of any breach of
this ARTICLE 3. If Employee is determined by a final judgment of any court of
competent jurisdiction to have breached any of the covenants or agreements
contained herein, then the term of such covenant or agreement shall be extended
for a period of time equal to the period of such breach. In the event of any
breach of the covenants and agreements contained in this ARTICLE 3, Employee
shall indemnify and hold Employer harmless against any and all claims arising
from such breach.
Section 3.7. Limitation of Scope. If a court of competent jurisdiction
determines that the temporal or geographical limitations of any of the
restrictive covenants contained in this ARTICLE 3 are not reasonably necessary
to protect the legitimate business interests of Employer, then such limitations
will be deemed to become and thereafter will be the maximum duration and area
that such court deems reasonable and enforceable. The parties hereto agree that
the foregoing provision is neither intended to, nor does it, constitute or
suggest an admission or belief that the restrictive covenants contained herein
are unreasonable. Further, the parties hereto acknowledge and agree that
temporal and geographical limitations of the restrictive covenants contained
herein are in every respect fair and reasonable.
Article 4
MISCELLANEOUS
Section 4.1. Waivers and Amendments. Neither this Agreement nor any term or
condition hereof, including without limitation, the terms and conditions of this
Section 4.1, may be waived or modified in whole or in part as against Employer
or Employee, as the case may be, except by written instrument signed by Employer
and Employee, expressly stating that it is intended to operate as a waiver or
modification of this Agreement, and any such written waiver by either party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach hereof.
Section 4.2. Notices. All notices and other communications hereunder shall
be (i) in writing; (ii) delivered by telecopy, by commercial overnight or
same-day delivery service with all delivery costs paid by sender, or by
registered or certified mail with postage prepaid, return receipt requested; and
(iii) addressed to the parties at their addresses specified in this Agreement or
at such other address for a party as shall be specified by like notice to the
other party.
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Section 4.3. Severability. If any term or provision of this Agreement or
the application thereof to any person, property or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons, property or circumstances
other than those as to which it is invalid or unenforceable, shall not be
effected thereby, and each term and provision of this Agreement shall be valid
and enforced to the fullest extent permitted by law.
Section 4.4. No Assignment; Binding Effect. This Agreement shall be binding
upon and inure to the benefit of Employer, its successors or assigns. Except as
to the obligation of Employee to render personal services which shall be
non-assignable, this Agreement shall be binding upon and inure to the heirs,
executors, administrators and assigns of Employee.
Section 4.5. Governing Law and Choice of Forum. This Agreement shall be
construed and enforced in accordance with the laws of the State of New Jersey
and shall be enforced in the state or federal courts sitting in New Jersey.
Section 4.6. Construction. The parties acknowledge and agree that they each
have had the opportunity to be represented by independent counsel. Accordingly,
and without limiting the scope or significance of the above statement, it is the
intention and agreement of the parties that the language, terms and conditions
of this Agreement are not to be construed in any way against or in favor of any
party hereto by reason of the responsibilities in connection with the
preparation of this Agreement.
Section 4.7. Attorney's Fees. In the event that either party shall seek to
enforce this Agreement, the non-prevailing party in such enforcement action
shall be responsible for and reimburse the prevailing party for the prevailing
party's costs incurred in such action, including, without limitation, attorneys'
fees.
Section 4.8. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties hereto with respect to the subject matter hereof
and supercedes all prior agreements and understanding, oral or written, between
the parties hereto with respect to the subject matter hereof. No
representations, warranties, or undertakings, or promises, whether oral,
implied, or otherwise, shall be binding on either party hereto and no
modifications hereof shall be binding on either or both of the parties hereto
unless the same are pursuant to and set forth in a written agreement executed by
both parties hereto. All amendments, supplements, or riders hereto, if any,
shall be in writing and executed by both parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ATTEST: EMPLOYER:
Strike Force Technical Services
Corporation d/b/a
StrikeForce Technologies Inc.
By: ______________________________
[Name]
______________________________
[Title]
EMPLOYEE:
______________________________
WITNESS:
______________________________
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