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Exhibit (c)(8)
CONFIDENTIALITY AND NO-SOLICITATION AGREEMENT
THIS CONFIDENTIALITY AND NO-SOLICITATION AGREEMENT ("Agreement") is
made and entered into by Xxxxxx X. Xxx, effective upon the consummation of the
merger between TechForce Corporation and Equant Acquisition Corp.
W I T N E S S E T H:
WHEREAS, Executive is presently an Executive of TechForce Corporation,
a Georgia corporation ("TechForce");
WHEREAS, on June 30, 1999, Company and TechForce have entered into an
Agreement and Plan of Merger ("Merger Agreement") pursuant to which a wholly
owned subsidiary of Equant ("NEWCO") has agreed to acquire from the shareholders
of TechForce all of the outstanding stock of TechForce (the "Merger");
WHEREAS, Equant and/or NEWCO (hereinafter collectively referred to as
"the Company") intends to employ Executive after consummation of the Merger;
WHEREAS, Executive recognizes that his management services have been
essential to the growth and development of TechForce and will be essential to
the growth and development of Company for itself and its related and affiliated
entities and, therefore, that the Executive's services are and will be special,
unique and extraordinary;
WHEREAS, Executive shall enter into and upon the consummation of the
Merger be bound by an agreement with the Company that provides the Company and
its affiliated and related entities with appropriate protection for their
confidential information, and from solicitation of their Employees and unfair
competition by the Executive, and for the assignment of the Executive to the
Company of work-related inventions and developments; and
WHEREAS, Executive will be subject to certain restrictive covenants
necessary to protect the legitimate business interests of the Company, including
without limitation, confidential, proprietary and trade secret information, and
goodwill among customers, employees and vendors;
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and adequacy whereof are hereby acknowledged, Executive covenants
and agrees as follows:
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1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
(i) "Confidential Information" means information belonging to the
Company, whether reduced to writing (or in a form from which
such information can be obtained, translated, or derived into
reasonably usable form), or maintained in the Executive's mind
or memory, which derives independent economic value from not
being readily known to or ascertainable by proper means by
others who can obtain economic value from the disclosure or
use of such information, including, without limitation,
financial information, reports, and forecasts; inventions,
improvements and other intellectual property, trade secrets;
know-how; designs, processes or formulae; software or related
code; market or sales information or plans; customer lists;
and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the
management of the Company, and further includes, without
limitation, all such types of information acquired by the
Company from TechForce. Confidential Information includes
information developed by the Executive in the course of the
Executive's employment by the Company, as well as other
information to which the Executive may have access in
connection with the Executive's employment. Confidential
Information also includes the confidential information of
others with which the Company has a business relationship.
Notwithstanding the foregoing, Confidential Information does
not include information in the public domain, unless due to
breach of the Executive's duties under this Agreement.
Regardless of whether information is in the public domain,
information shall cease to be Confidential Information upon
the fifth (5th) year anniversary of the termination and/or
resignation of Executive's employment with the Company for any
reason.
(ii) "Inventions and Developments" means any and all inventions,
developments, creative works and useful ideas of any
description whatsoever, whether or not patentable, including
without limitation, discoveries and improvements which consist
of or relate to any form of Confidential Information.
(iii) "Company-Related Inventions and Developments" means all
Inventions and Developments which either (A) relate at the
time of conception or development to the actual or
demonstrably proposed business or research and development
activities of the Company; (B) result from or relate to any
work performed for the Company, whether or not during normal
business hours; (C) are developed on Company work time; or (D)
are developed through the use of Confidential Information, or
the Company's equipment, software, or other facilities or
resources.
(iv) "Services" means the development, direct or indirect,
marketing, sales or distribution of network systems
integration services.
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(v) "Customer" means any person or entity who (a) is receiving
Services from the Company on the date of termination of the
Executive's employment with the Company, or (b) received
Services from the Company, TechForce or the Executive at any
time during the one (1) year period immediately preceding the
date of termination of the Executive's employment with the
Company, provided, however, that upon the termination of
Executive's employment, Executive shall receive a list of the
Customers that are included within this Section (v)
(vi) "Restricted Term" means the period ending twelve (12) months
following the termination and/or resignation of the
Executive's employment with the Company, regardless of the
reason.
2. CONFIDENTIALITY.
The Executive understands and agrees that the Executive's employment creates a
relationship of confidence and trust between the Executive and the Company with
respect to all Confidential Information. At all times, both during the
Executive's employment with the Company and after its termination, the Executive
will keep in confidence and trust all such Confidential Information, and will
not use or disclose any such Confidential Information without the written
consent of the
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Company, except as may be necessary in the ordinary course of performing the
Executive's duties to the Company.
3. DOCUMENTS, RECORDS, ETC.
All documents, records, data, apparatus, equipment and physical property,
whether or not pertaining to the Confidential Information, which are furnished
to the Executive by the Company or are produced by the Executive in connection
with the Executive's employment will be and remain the sole property of the
Company. The Executive will return to the Company all such materials and
property, including any material or medium from which any Confidential
Information may be ascertained or derived, as and when requested by the Company.
In any event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any reason. The
Executive will not retain with the Executive any such material or property or
any copies, compilations, or analyses thereof after such termination.
4. ASSIGNMENT OF INVENTIONS AND DEVELOPMENTS.
The Executive agrees that all Company-Related Inventions and Developments which
he conceives or develops, in whole or in part, either alone or jointly with
others, during his employment with the Company will be the sole property of the
Company. The Company will be the sole owner of all patents, copyrights and other
proprietary rights in and with respect to such Company-Related Inventions and
Developments. To the fullest extent permitted by law, such Company-Related
Inventions and Developments will be deemed works made for hire. The Executive
hereby transfers and assigns to the Company any proprietary rights which he may
have or acquire in such Company-Related Inventions and Developments, and he
waives any other special rights which he may have or accrue therein. The
Executive agrees to execute any documents and take any actions that may be
required to effect and confirm such transfer, assignment and waiver. The
provisions of this Agreement will apply to all Company-Related Inventions and
Developments which are conceived or developed by the Executive during his
employment with the Company, whether or not further development or reduction to
practice may take place after termination of his employment, for which purpose
it will be presumed that any Company-Related Inventions and Developments
conceived by the Executive which are reduced to practice within one year after
termination of his employment were conceived during the term of his employment
with the Company unless he is able to establish a later conception date by clear
and convincing evidence.
The Executive represents and warrants that all Inventions and Developments made
and currently or previously owned by him prior to his employment by the Company
and that have not otherwise been assigned, transferred or sold to the Company in
connection with the consummation of the transactions contemplated by the Merger
Agreement, are disclosed in the Schedule attached to this Agreement.
The Executive agrees promptly to disclose to the Company, or to persons
designated by it, all Company-Related Inventions and Developments which are or
may be subject to the provisions of
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this Agreement.
The Executive further agrees to assist the Company, at the Company's request
from time to time and at its expense, to obtain and enforce patents, copyrights
or other proprietary rights with respect to the Company-Related Inventions and
Developments in any and all countries. The Executive will execute all documents
reasonably necessary or appropriate for this purpose. This obligation will
survive the termination of the Executive's employment, provided that the Company
will compensate him at a reasonable rate after such termination for time
actually spent by the Executive at the Company's request on such assistance. In
the event that the Company is unable, after using its best efforts, to secure
the Executive's signature to any document reasonably necessary or appropriate
for any of the foregoing purposes (including renewals, extensions,
continuations, divisions or continuations in part), the Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agents and attorneys-in-fact to act for him and on his behalf,
but only for the purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes, with the
same legal force and effect as if executed or done by the Executive.
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5. NONSOLICITATION OF CUSTOMERS
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not, directly or
indirectly, in any capacity solicit the business or trade of any Customer for
himself or for any other person or entity engaged in or for the purpose of
providing the same Services to such Customer.
6. NONSOLICITATION OF EMPLOYEES
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not directly or
indirectly, in any capacity:
(i) be personally involved, directly or indirectly through any
enterprise with which he is associated, in the hiring or
employment of any current employee or full-time consultant of
the Company; or
(ii) recruit, solicit or induce (or in any way assist another
person or enterprise in recruiting, soliciting or inducing)
any employee or full-time consultant of the Company to
terminate his or her employment or other relationship with the
Company.
For purposes of this Section, the term "consultant" shall refer to individuals
who perform services for the Company on an independent contractor and consulting
basis, not the entity for whom they may be employed.
Notwithstanding the foregoing, nothing in this paragraph shall prevent the
Executive or his employer from placing blind advertisements or hiring recruiters
on a neutral basis in order to recruit generally.
7. ACKNOWLEDGMENTS
The Executive acknowledges and agrees that the restrictions set forth in this
Agreement are intended to protect the Company's interest in its Confidential
Information and its commercial relationships and goodwill (with its customers,
prospective customers, vendors, consultants and employees), including, without
limitation, Confidential Information, commercial relationships and goodwill
acquired by the Company through the Merger with TechForce, or developed while
the Executive was employed by the Company, and are reasonable and appropriate
for these purposes. The Executive acknowledges that based on his unique skills,
position and exposure to Confidential Information, the breach, or threatened
breach, by him of the provisions of this Agreement may cause irreparable harm to
the Company, which harm cannot be fully redressed by the payment of damages to
the Company. The Executive also acknowledges that Company's Customers are
located throughout the United States and that a business competitive with the
Company may be carried on anywhere within the United States as a result of the
unique use of telephonic, technologic and other advanced communications
techniques. Therefore, the Executive acknowledges that the geographical
application of this Agreement is reasonable under
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the circumstances. The Executive further acknowledges that: (i) in the event his
employment with the Company terminates for any reason, he will be able to earn a
livelihood without violating the foregoing restrictions and (ii) his ability to
earn a livelihood without violating such restrictions is a material condition to
his employment with the Company.
8. DISCLOSURE OF AGREEMENT
As long as it remains in effect, the Executive will disclose the existence of
this Agreement to any prospective employer, partner, co-venturer, investor or
lender prior to entering into an employment, partnership or other business
relationship with such person or entity.
9. INJUNCTION
The Executive agrees that it may be difficult to measure any damages caused to
the Company which might result from any breach by the Executive of the promises
set forth in this Agreement (except for those set forth in Sections 9 and 10),
and that in any event money damages may be an inadequate remedy for any such
breach. Accordingly the Executive agrees that if the Executive breach, or
threatens to breach, any portion of Agreement (other than Sections 9 and 10),
the Company may be entitled, in addition to all other remedies that it may have,
to have an injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to the Company.
10. MISCELLANEOUS PROVISIONS
(a) Severability. If any provision, section or subsection of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, then the court may amend such portion or provision so as to comply with
the law or, if it declines to do so, the void or unenforceable section or
subsection shall not affect the validity of the remainder of the Agreement, each
section or subsection of which shall be enforceable to the fullest extent
permitted by law.
(b) Waiver. Any failure of the Company to demand rigid adherence
to one or more of this Agreement's terms, on one or more occasion, shall not be
construed as a waiver nor deprive the Company of the right to insist upon strict
compliance.
(c) Governing Law. This is a New York contract and shall be
construed under and be governed in all respects by the laws of the State of New
York, without giving effect to the conflict of laws principles of such State.
With respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the Second Circuit.
(d) Legal Fees and Costs. In any action brought by either party to
enforce this Agreement, the prevailing party shall be entitled to be reimbursed
for reasonable legal fees and the costs of litigation by the other party.
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(e) Entire Agreement. This agreement and any agreement to which it
is attached and made part of constitute the entire agreement between the parties
with respect to the subject matter herein and supersede all prior agreements,
whether oral or written, between the parties and/or any predecessors in
interest, including without limitation TechForce, with respect to any related
subject matter. This agreement may not be modified or amended except by a
writing signed by Executive, a duly-authorized representative of the Company and
Xxxxxxx Xxxxxxxxx.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by
Executive this 30th day of June 1999.
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Xxxxxx X. Xxx
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CONFIDENTIALITY AND NO-SOLICITATION AGREEMENT
THIS CONFIDENTIALITY AND NO-SOLICITATION AGREEMENT ("Agreement") is
made and entered into by Xxxxx Xxxxxxxxxxx, effective upon the consummation of
the merger between TechForce Corporation and Equant Acquisition Corp.
W I T N E S S E T H:
WHEREAS, Executive is presently an Executive of TechForce Corporation,
a Georgia corporation ("TechForce");
WHEREAS, on June 30, 1999, Company and TechForce have entered into an
Agreement and Plan of Merger ("Merger Agreement") pursuant to which a wholly
owned subsidiary of Equant ("NEWCO") has agreed to acquire from the shareholders
of TechForce all of the outstanding stock of TechForce (the "Merger");
WHEREAS, Equant and/or NEWCO (hereinafter collectively referred to as
"the Company") intends to employ Executive after consummation of the Merger;
WHEREAS, Executive recognizes that his management services have been
essential to the growth and development of TechForce and will be essential to
the growth and development of Company for itself and its related and affiliated
entities and, therefore, that the Executive's services are and will be special,
unique and extraordinary;
WHEREAS, Executive shall enter into and upon the consummation of the
Merger be bound by an agreement with the Company that provides the Company and
its affiliated and related entities with appropriate protection for their
confidential information, and from solicitation of their Employees and unfair
competition by the Executive, and for the assignment of the Executive to the
Company of work-related inventions and developments; and
WHEREAS, Executive will be subject to certain restrictive covenants
necessary to protect the legitimate business interests of the Company, including
without limitation, confidential, proprietary and trade secret information, and
goodwill among customers, employees and vendors;
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and adequacy whereof are hereby acknowledged, Executive covenants
and agrees as follows:
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1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
(i) "Confidential Information" means information belonging to the
Company, whether reduced to writing (or in a form from which
such information can be obtained, translated, or derived into
reasonably usable form), or maintained in the Executive's mind
or memory, which derives independent economic value from not
being readily known to or ascertainable by proper means by
others who can obtain economic value from the disclosure or
use of such information, including, without limitation,
financial information, reports, and forecasts; inventions,
improvements and other intellectual property, trade secrets;
know-how; designs, processes or formulae; software or related
code; market or sales information or plans; customer lists;
and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the
management of the Company, and further includes, without
limitation, all such types of information acquired by the
Company from TechForce. Confidential Information includes
information developed by the Executive in the course of the
Executive's employment by the Company, as well as other
information to which the Executive may have access in
connection with the Executive's employment. Confidential
Information also includes the confidential information of
others with which the Company has a business relationship.
Notwithstanding the foregoing, Confidential Information does
not include information in the public domain, unless due to
breach of the Executive's duties under this Agreement.
Regardless of whether information is in the public domain,
information shall cease to be Confidential Information upon
the fifth (5th) year anniversary of the termination and/or
resignation of Executive's employment with the Company for any
reason.
(ii) "Inventions and Developments" means any and all inventions,
developments, creative works and useful ideas of any
description whatsoever, whether or not patentable, including
without limitation, discoveries and improvements which consist
of or relate to any form of Confidential Information.
(iii) "Company-Related Inventions and Developments" means all
Inventions and Developments which either (A) relate at the
time of conception or development to the actual or
demonstrably proposed business or research and development
activities of the Company; (B) result from or relate to any
work performed for the Company, whether or not during normal
business hours; (C) are developed on Company work time; or (D)
are developed through the use of Confidential Information, or
the Company's equipment, software, or other facilities or
resources.
(iv) "Services" means the development, direct or indirect,
marketing, sales or distribution of network systems
integration services.
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(v) "Customer" means any person or entity who (a) is receiving
Services from the Company on the date of termination of the
Executive's employment with the Company, or (b) received
Services from the Company, TechForce or the Executive at any
time during the one (1) year period immediately preceding the
date of termination of the Executive's employment with the
Company, provided, however, that upon the termination of
Executive's employment, Executive shall receive a list of the
Customers that are included within this Section (v)
(vi) "Restricted Term" means the period ending twelve (12) months
following the termination and/or resignation of the
Executive's employment with the Company, regardless of the
reason.
2. CONFIDENTIALITY.
The Executive understands and agrees that the Executive's employment creates a
relationship of confidence and trust between the Executive and the Company with
respect to all Confidential Information. At all times, both during the
Executive's employment with the Company and after its termination, the Executive
will keep in confidence and trust all such Confidential Information, and will
not use or disclose any such Confidential Information without the written
consent of the
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Company, except as may be necessary in the ordinary course of performing the
Executive's duties to the Company.
3. DOCUMENTS, RECORDS, ETC.
All documents, records, data, apparatus, equipment and physical property,
whether or not pertaining to the Confidential Information, which are furnished
to the Executive by the Company or are produced by the Executive in connection
with the Executive's employment will be and remain the sole property of the
Company. The Executive will return to the Company all such materials and
property, including any material or medium from which any Confidential
Information may be ascertained or derived, as and when requested by the Company.
In any event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any reason. The
Executive will not retain with the Executive any such material or property or
any copies, compilations, or analyses thereof after such termination.
4. ASSIGNMENT OF INVENTIONS AND DEVELOPMENTS.
The Executive agrees that all Company-Related Inventions and Developments which
he conceives or develops, in whole or in part, either alone or jointly with
others, during his employment with the Company will be the sole property of the
Company. The Company will be the sole owner of all patents, copyrights and other
proprietary rights in and with respect to such Company-Related Inventions and
Developments. To the fullest extent permitted by law, such Company-Related
Inventions and Developments will be deemed works made for hire. The Executive
hereby transfers and assigns to the Company any proprietary rights which he may
have or acquire in such Company-Related Inventions and Developments, and he
waives any other special rights which he may have or accrue therein. The
Executive agrees to execute any documents and take any actions that may be
required to effect and confirm such transfer, assignment and waiver. The
provisions of this Agreement will apply to all Company-Related Inventions and
Developments which are conceived or developed by the Executive during his
employment with the Company, whether or not further development or reduction to
practice may take place after termination of his employment, for which purpose
it will be presumed that any Company-Related Inventions and Developments
conceived by the Executive which are reduced to practice within one year after
termination of his employment were conceived during the term of his employment
with the Company unless he is able to establish a later conception date by clear
and convincing evidence.
The Executive represents and warrants that all Inventions and Developments made
and currently or previously owned by him prior to his employment by the Company
and that have not otherwise been assigned, transferred or sold to the Company in
connection with the consummation of the transactions contemplated by the Merger
Agreement, are disclosed in the Schedule attached to this Agreement.
The Executive agrees promptly to disclose to the Company, or to persons
designated by it, all Company-Related Inventions and Developments which are or
may be subject to the provisions of
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this Agreement.
The Executive further agrees to assist the Company, at the Company's request
from time to time and at its expense, to obtain and enforce patents, copyrights
or other proprietary rights with respect to the Company-Related Inventions and
Developments in any and all countries. The Executive will execute all documents
reasonably necessary or appropriate for this purpose. This obligation will
survive the termination of the Executive's employment, provided that the Company
will compensate him at a reasonable rate after such termination for time
actually spent by the Executive at the Company's request on such assistance. In
the event that the Company is unable, after using its best efforts, to secure
the Executive's signature to any document reasonably necessary or appropriate
for any of the foregoing purposes (including renewals, extensions,
continuations, divisions or continuations in part), the Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agents and attorneys-in-fact to act for him and on his behalf,
but only for the purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes, with the
same legal force and effect as if executed or done by the Executive.
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5. NONSOLICITATION OF CUSTOMERS
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not, directly or
indirectly, in any capacity solicit the business or trade of any Customer for
himself or for any other person or entity engaged in or for the purpose of
providing the same Services to such Customer.
6. NONSOLICITATION OF EMPLOYEES
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not directly or
indirectly, in any capacity:
(i) be personally involved, directly or indirectly through any
enterprise with which he is associated, in the hiring or
employment of any current employee or full-time consultant of
the Company; or
(ii) recruit, solicit or induce (or in any way assist another
person or enterprise in recruiting, soliciting or inducing)
any employee or full-time consultant of the Company to
terminate his or her employment or other relationship with the
Company.
For purposes of this Section, the term "consultant" shall refer to individuals
who perform services for the Company on an independent contractor and consulting
basis, not the entity for whom they may be employed.
Notwithstanding the foregoing, nothing in this paragraph shall prevent the
Executive or his employer from placing blind advertisements or hiring recruiters
on a neutral basis in order to recruit generally.
7. ACKNOWLEDGMENTS
The Executive acknowledges and agrees that the restrictions set forth in this
Agreement are intended to protect the Company's interest in its Confidential
Information and its commercial relationships and goodwill (with its customers,
prospective customers, vendors, consultants and employees), including, without
limitation, Confidential Information, commercial relationships and goodwill
acquired by the Company through the Merger with TechForce, or developed while
the Executive was employed by the Company, and are reasonable and appropriate
for these purposes. The Executive acknowledges that based on his unique skills,
position and exposure to Confidential Information, the breach, or threatened
breach, by him of the provisions of this Agreement may cause irreparable harm to
the Company, which harm cannot be fully redressed by the payment of damages to
the Company. The Executive also acknowledges that Company's Customers are
located throughout the United States and that a business competitive with the
Company may be carried on anywhere within the United States as a result of the
unique use of telephonic, technologic and other advanced communications
techniques. Therefore, the Executive acknowledges that the geographical
application of this Agreement is reasonable under
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the circumstances. The Executive further acknowledges that: (i) in the event his
employment with the Company terminates for any reason, he will be able to earn a
livelihood without violating the foregoing restrictions and (ii) his ability to
earn a livelihood without violating such restrictions is a material condition to
his employment with the Company.
8. DISCLOSURE OF AGREEMENT
As long as it remains in effect, the Executive will disclose the existence of
this Agreement to any prospective employer, partner, co-venturer, investor or
lender prior to entering into an employment, partnership or other business
relationship with such person or entity.
9. INJUNCTION
The Executive agrees that it may be difficult to measure any damages caused to
the Company which might result from any breach by the Executive of the promises
set forth in this Agreement (except for those set forth in Sections 9 and 10),
and that in any event money damages may be an inadequate remedy for any such
breach. Accordingly the Executive agrees that if the Executive breach, or
threatens to breach, any portion of Agreement (other than Sections 9 and 10),
the Company may be entitled, in addition to all other remedies that it may have,
to have an injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to the Company.
10. MISCELLANEOUS PROVISIONS
(a) Severability. If any provision, section or subsection of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, then the court may amend such portion or provision so as to comply with
the law or, if it declines to do so, the void or unenforceable section or
subsection shall not affect the validity of the remainder of the Agreement, each
section or subsection of which shall be enforceable to the fullest extent
permitted by law.
(b) Waiver. Any failure of the Company to demand rigid adherence to one
or more of this Agreement's terms, on one or more occasion, shall not be
construed as a waiver nor deprive the Company of the right to insist upon strict
compliance.
(c) Governing Law. This is a New York contract and shall be construed
under and be governed in all respects by the laws of the State of New York,
without giving effect to the conflict of laws principles of such State. With
respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the Second Circuit.
(d) Legal Fees and Costs. In any action brought by either party to
enforce this Agreement, the prevailing party shall be entitled to be reimbursed
for reasonable legal fees and the costs of litigation by the other party.
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(e) Entire Agreement. This agreement and any agreement to which it is
attached and made part of constitute the entire agreement between the parties
with respect to the subject matter herein and supersede all prior agreements,
whether oral or written, between the parties and/or any predecessors in
interest, including without limitation TechForce, with respect to any related
subject matter. This agreement may not be modified or amended except by a
writing signed by Executive, a duly-authorized representative of the Company and
Xxxxxxx Xxxxxxxxx.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by
Executive on this 30th day of June 1999.
--------------------------------
Xxxxx Xxxxxxxxxxx
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CONFIDENTIALITY AND NO-SOLICITATION AGREEMENT
THIS CONFIDENTIALITY AND NO-SOLICITATION AGREEMENT ("Agreement") is
made and entered into by Xxxxxx Xxxxxx, effective upon the consummation of the
merger between TechForce Corporation and Equant Acquisition Corp.
W I T N E S S E T H:
WHEREAS, Executive is presently an Executive of TechForce Corporation,
a Georgia corporation ("TechForce");
WHEREAS, on June 30, 1999, Company and TechForce have entered into an
Agreement and Plan of Merger ("Merger Agreement") pursuant to which a wholly
owned subsidiary of Equant ("NEWCO") has agreed to acquire from the shareholders
of TechForce all of the outstanding stock of TechForce (the "Merger");
WHEREAS, Equant and/or NEWCO (hereinafter collectively referred to as
"the Company") intends to employ Executive after consummation of the Merger;
WHEREAS, Executive recognizes that his management services have been
essential to the growth and development of TechForce and will be essential to
the growth and development of Company for itself and its related and affiliated
entities and, therefore, that the Executive's services are and will be special,
unique and extraordinary;
WHEREAS, Executive shall enter into and upon the consummation of the
Merger be bound by an agreement with the Company that provides the Company and
its affiliated and related entities with appropriate protection for their
confidential information, and from solicitation of their Employees and unfair
competition by the Executive, and for the assignment of the Executive to the
Company of work-related inventions and developments; and
WHEREAS, Executive will be subject to certain restrictive covenants
necessary to protect the legitimate business interests of the Company, including
without limitation, confidential, proprietary and trade secret information, and
goodwill among customers, employees and vendors;
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and adequacy whereof are hereby acknowledged, Executive covenants
and agrees as follows:
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1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
(i) "Confidential Information" means information belonging to the
Company, whether reduced to writing (or in a form from which
such information can be obtained, translated, or derived into
reasonably usable form), or maintained in the Executive's mind
or memory, which derives independent economic value from not
being readily known to or ascertainable by proper means by
others who can obtain economic value from the disclosure or
use of such information, including, without limitation,
financial information, reports, and forecasts; inventions,
improvements and other intellectual property, trade secrets;
know-how; designs, processes or formulae; software or related
code; market or sales information or plans; customer lists;
and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the
management of the Company, and further includes, without
limitation, all such types of information acquired by the
Company from TechForce. Confidential Information includes
information developed by the Executive in the course of the
Executive's employment by the Company, as well as other
information to which the Executive may have access in
connection with the Executive's employment. Confidential
Information also includes the confidential information of
others with which the Company has a business relationship.
Notwithstanding the foregoing, Confidential Information does
not include information in the public domain, unless due to
breach of the Executive's duties under this Agreement.
Regardless of whether information is in the public domain,
information shall cease to be Confidential Information upon
the fifth (5th) year anniversary of the termination and/or
resignation of Executive's employment with the Company for any
reason.
(ii) "Inventions and Developments" means any and all inventions,
developments, creative works and useful ideas of any
description whatsoever, whether or not patentable, including
without limitation, discoveries and improvements which consist
of or relate to any form of Confidential Information.
(iii) "Company-Related Inventions and Developments" means all
Inventions and Developments which either (A) relate at the
time of conception or development to the actual or
demonstrably proposed business or research and development
activities of the Company; (B) result from or relate to any
work performed for the Company, whether or not during normal
business hours; (C) are developed on Company work time; or (D)
are developed through the use of Confidential Information, or
the Company's equipment, software, or other facilities or
resources.
(iv) "Services" means the development, direct or indirect,
marketing, sales or distribution of network systems
integration services.
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19
(v) "Customer" means any person or entity who (a) is receiving
Services from the Company on the date of termination of the
Executive's employment with the Company, or (b) received
Services from the Company, TechForce or the Executive at any
time during the one (1) year period immediately preceding the
date of termination of the Executive's employment with the
Company, provided, however, that upon the termination of
Executive's employment, Executive shall receive a list of the
Customers that are included within this Section (v)
(vi) "Restricted Term" means the period ending twelve (12) months
following the termination and/or resignation of the
Executive's employment with the Company, regardless of the
reason.
2. CONFIDENTIALITY.
The Executive understands and agrees that the Executive's employment creates a
relationship of confidence and trust between the Executive and the Company with
respect to all Confidential Information. At all times, both during the
Executive's employment with the Company and after its termination, the Executive
will keep in confidence and trust all such Confidential Information, and will
not use or disclose any such Confidential Information without the written
consent of the
3
20
Company, except as may be necessary in the ordinary course of performing the
Executive's duties to the Company.
3. DOCUMENTS, RECORDS, ETC.
All documents, records, data, apparatus, equipment and physical property,
whether or not pertaining to the Confidential Information, which are furnished
to the Executive by the Company or are produced by the Executive in connection
with the Executive's employment will be and remain the sole property of the
Company. The Executive will return to the Company all such materials and
property, including any material or medium from which any Confidential
Information may be ascertained or derived, as and when requested by the Company.
In any event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any reason. The
Executive will not retain with the Executive any such material or property or
any copies, compilations, or analyses thereof after such termination.
4. ASSIGNMENT OF INVENTIONS AND DEVELOPMENTS.
The Executive agrees that all Company-Related Inventions and Developments which
he conceives or develops, in whole or in part, either alone or jointly with
others, during his employment with the Company will be the sole property of the
Company. The Company will be the sole owner of all patents, copyrights and other
proprietary rights in and with respect to such Company-Related Inventions and
Developments. To the fullest extent permitted by law, such Company-Related
Inventions and Developments will be deemed works made for hire. The Executive
hereby transfers and assigns to the Company any proprietary rights which he may
have or acquire in such Company-Related Inventions and Developments, and he
waives any other special rights which he may have or accrue therein. The
Executive agrees to execute any documents and take any actions that may be
required to effect and confirm such transfer, assignment and waiver. The
provisions of this Agreement will apply to all Company-Related Inventions and
Developments which are conceived or developed by the Executive during his
employment with the Company, whether or not further development or reduction to
practice may take place after termination of his employment, for which purpose
it will be presumed that any Company-Related Inventions and Developments
conceived by the Executive which are reduced to practice within one year after
termination of his employment were conceived during the term of his employment
with the Company unless he is able to establish a later conception date by clear
and convincing evidence.
The Executive represents and warrants that all Inventions and Developments made
and currently or previously owned by him prior to his employment by the Company
and that have not otherwise been assigned, transferred or sold to the Company in
connection with the consummation of the transactions contemplated by the Merger
Agreement, are disclosed in the Schedule attached to this Agreement.
The Executive agrees promptly to disclose to the Company, or to persons
designated by it, all Company-Related Inventions and Developments which are or
may be subject to the provisions of
4
21
this Agreement.
The Executive further agrees to assist the Company, at the Company's request
from time to time and at its expense, to obtain and enforce patents, copyrights
or other proprietary rights with respect to the Company-Related Inventions and
Developments in any and all countries. The Executive will execute all documents
reasonably necessary or appropriate for this purpose. This obligation will
survive the termination of the Executive's employment, provided that the Company
will compensate him at a reasonable rate after such termination for time
actually spent by the Executive at the Company's request on such assistance. In
the event that the Company is unable, after using its best efforts, to secure
the Executive's signature to any document reasonably necessary or appropriate
for any of the foregoing purposes (including renewals, extensions,
continuations, divisions or continuations in part), the Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agents and attorneys-in-fact to act for him and on his behalf,
but only for the purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes, with the
same legal force and effect as if executed or done by the Executive.
5
22
5. NONSOLICITATION OF CUSTOMERS
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not, directly or
indirectly, in any capacity solicit the business or trade of any Customer for
himself or for any other person or entity engaged in or for the purpose of
providing the same Services to such Customer.
6. NONSOLICITATION OF EMPLOYEES
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not directly or
indirectly, in any capacity:
(i) be personally involved, directly or indirectly through any
enterprise with which he is associated, in the hiring or
employment of any current employee or full-time consultant of
the Company; or
(ii) recruit, solicit or induce (or in any way assist another
person or enterprise in recruiting, soliciting or inducing)
any employee or full-time consultant of the Company to
terminate his or her employment or other relationship with the
Company.
For purposes of this Section, the term "consultant" shall refer to individuals
who perform services for the Company on an independent contractor and consulting
basis, not the entity for whom they may be employed.
Notwithstanding the foregoing, nothing in this paragraph shall prevent the
Executive or his employer from placing blind advertisements or hiring recruiters
on a neutral basis in order to recruit generally.
7. ACKNOWLEDGMENTS
The Executive acknowledges and agrees that the restrictions set forth in this
Agreement are intended to protect the Company's interest in its Confidential
Information and its commercial relationships and goodwill (with its customers,
prospective customers, vendors, consultants and employees), including, without
limitation, Confidential Information, commercial relationships and goodwill
acquired by the Company through the Merger with TechForce, or developed while
the Executive was employed by the Company, and are reasonable and appropriate
for these purposes. The Executive acknowledges that based on his unique skills,
position and exposure to Confidential Information, the breach, or threatened
breach, by him of the provisions of this Agreement may cause irreparable harm to
the Company, which harm cannot be fully redressed by the payment of damages to
the Company. The Executive also acknowledges that Company's Customers are
located throughout the United States and that a business competitive with the
Company may be carried on anywhere within the United States as a result of the
unique use of telephonic, technologic and other advanced communications
techniques. Therefore, the Executive acknowledges that the geographical
application of this Agreement is reasonable under
6
23
the circumstances. The Executive further acknowledges that: (i) in the event his
employment with the Company terminates for any reason, he will be able to earn a
livelihood without violating the foregoing restrictions and (ii) his ability to
earn a livelihood without violating such restrictions is a material condition to
his employment with the Company.
8. DISCLOSURE OF AGREEMENT
As long as it remains in effect, the Executive will disclose the existence of
this Agreement to any prospective employer, partner, co-venturer, investor or
lender prior to entering into an employment, partnership or other business
relationship with such person or entity.
9. INJUNCTION
The Executive agrees that it may be difficult to measure any damages caused to
the Company which might result from any breach by the Executive of the promises
set forth in this Agreement (except for those set forth in Sections 9 and 10),
and that in any event money damages may be an inadequate remedy for any such
breach. Accordingly the Executive agrees that if the Executive breach, or
threatens to breach, any portion of Agreement (other than Sections 9 and 10),
the Company may be entitled, in addition to all other remedies that it may have,
to have an injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to the Company.
10. MISCELLANEOUS PROVISIONS
(a) Severability. If any provision, section or subsection of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, then the court may amend such portion or provision so as to comply with
the law or, if it declines to do so, the void or unenforceable section or
subsection shall not affect the validity of the remainder of the Agreement, each
section or subsection of which shall be enforceable to the fullest extent
permitted by law.
(b) Waiver. Any failure of the Company to demand rigid adherence to one
or more of this Agreement's terms, on one or more occasion, shall not be
construed as a waiver nor deprive the Company of the right to insist upon strict
compliance.
(c) Governing Law. This is a New York contract and shall be construed
under and be governed in all respects by the laws of the State of New York,
without giving effect to the conflict of laws principles of such State. With
respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the Second Circuit.
(d) Legal Fees and Costs. In any action brought by either party to
enforce this Agreement, the prevailing party shall be entitled to be reimbursed
for reasonable legal fees and the costs of litigation by the other party.
7
24
(e) Entire Agreement. This agreement and any agreement to which it is
attached and made part of constitute the entire agreement between the parties
with respect to the subject matter herein and supersede all prior agreements,
whether oral or written, between the parties and/or any predecessors in
interest, including without limitation TechForce, with respect to any related
subject matter. This agreement may not be modified or amended except by a
writing signed by Executive, a duly-authorized representative of the Company and
Xxxxxxx Xxxxxxxxx.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by
Executive on this 30th day of June 1999.
--------------------------------
Xxxxxx Xxxxxx
8
25
CONFIDENTIALITY, NO-SOLICITATION AND
NON-COMPETE AGREEMENT
THIS CONFIDENTIALITY, NO-SOLICITATION AND NON-COMPETE AGREEMENT
("Agreement") is made and entered into by Xxxx Xxxxxxx, effective upon the
consummation of the merger between TechForce Corporation and Equant Acquisition
Corp.
W I T N E S S E T H:
WHEREAS, Executive is presently an Executive of TechForce Corporation,
a Georgia corporation ("TechForce");
WHEREAS, on June 30, 1999, Company and TechForce have entered into an
Agreement and Plan of Merger ("Merger Agreement") pursuant to which a wholly
owned subsidiary of Equant ("NEWCO") has agreed to acquire from the shareholders
of TechForce all of the outstanding stock of TechForce (the "Merger");
WHEREAS, Equant and/or NEWCO (hereinafter collectively referred to as
"the Company") intends to employ Executive after consummation of the Merger;
WHEREAS, Executive recognizes that his management services have been
essential to the growth and development of TechForce and will be essential to
the growth and development of Company for itself and its related and affiliated
entities and, therefore, that the Executive's services are and will be special,
unique and extraordinary;
WHEREAS, Executive shall enter into and upon the consummation of the
Merger be bound by an agreement with the Company that provides the Company and
its affiliated and related entities with appropriate protection for their
confidential information, and from solicitation of their Employees and unfair
competition by the Executive, and for the assignment of the Executive to the
Company of work-related inventions and developments; and
WHEREAS, Executive will be subject to certain restrictive covenants
necessary to protect the legitimate business interests of the Company, including
without limitation, confidential, proprietary and trade secret information, and
goodwill among customers, employees and vendors;
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and adequacy whereof are hereby acknowledged, Executive covenants
and agrees as follows:
26
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
(i) "Confidential Information" means information belonging to the
Company, whether reduced to writing (or in a form from which
such information can be obtained, translated, or derived into
reasonably usable form), or maintained in the Executive's mind
or memory, which derives independent economic value from not
being readily known to or ascertainable by proper means by
others who can obtain economic value from the disclosure or
use of such information, including, without limitation,
financial information, reports, and forecasts; inventions,
improvements and other intellectual property, trade secrets;
know-how; designs, processes or formulae; software or related
code; market or sales information or plans; customer lists;
and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the
management of the Company, and further includes, without
limitation, all such types of information acquired by the
Company from TechForce. Confidential Information includes
information developed by the Executive in the course of the
Executive's employment by the Company, as well as other
information to which the Executive may have access in
connection with the Executive's employment. Confidential
Information also includes the confidential information of
others with which the Company has a business relationship.
Notwithstanding the foregoing, Confidential Information does
not include information in the public domain, unless due to
breach of the Executive's duties under this Agreement.
Regardless of whether information is in the public domain,
information shall cease to be Confidential Information upon
the fifth (5th) year anniversary of the termination and/or
resignation of Executive's employment with the Company for any
reason.
(ii) "Inventions and Developments" means any and all inventions,
developments, creative works and useful ideas of any
description whatsoever, whether or not patentable, including
without limitation, discoveries and improvements which consist
of or relate to any form of Confidential Information.
(iii) "Company-Related Inventions and Developments" means all
Inventions and Developments which either (A) relate at the
time of conception or development to the actual or
demonstrably proposed business or research and development
activities of the Company; (B) result from or relate to any
work performed for the Company, whether or not during normal
business hours; (C) are developed on Company work time; or (D)
are developed through the use of Confidential Information, or
the Company's equipment, software, or other facilities or
resources.
(iv) "Services" means the development, direct or indirect,
marketing, sales or distribution of network systems
integration services.
2
27
(v) "Customer" means any person or entity who (a) is receiving
Services from the Company on the date of termination of the
Executive's employment with the Company, or (b) received
Services from the Company, TechForce or the Executive at any
time during the one (1) year period immediately preceding the
date of termination of the Executive's employment with the
Company, provided, however, that upon the termination of
Executive's employment, Executive shall receive a list of the
Customers that are included within this Section (v)
(vi) "Restricted Term" means the period ending twenty-four (24)
months following the termination and/or resignation of the
Executive's employment with the Company, regardless of the
reason.
2. CONFIDENTIALITY.
The Executive understands and agrees that the Executive's employment creates a
relationship of confidence and trust between the Executive and the Company with
respect to all Confidential Information. At all times, both during the
Executive's employment with the Company and after its termination, the Executive
will keep in confidence and trust all such Confidential Information, and will
not use or disclose any such Confidential Information without the written
consent of the
3
28
Company, except as may be necessary in the ordinary course of performing the
Executive's duties to the Company.
3. DOCUMENTS, RECORDS, ETC.
All documents, records, data, apparatus, equipment and physical property,
whether or not pertaining to the Confidential Information, which are furnished
to the Executive by the Company or are produced by the Executive in connection
with the Executive's employment will be and remain the sole property of the
Company. The Executive will return to the Company all such materials and
property, including any material or medium from which any Confidential
Information may be ascertained or derived, as and when requested by the Company.
In any event, the Executive will return all such materials and property
immediately upon termination of the Executive's employment for any reason. The
Executive will not retain with the Executive any such material or property or
any copies, compilations, or analyses thereof after such termination.
4. ASSIGNMENT OF INVENTIONS AND DEVELOPMENTS.
The Executive agrees that all Company-Related Inventions and Developments which
he conceives or develops, in whole or in part, either alone or jointly with
others, during his employment with the Company will be the sole property of the
Company. The Company will be the sole owner of all patents, copyrights and other
proprietary rights in and with respect to such Company-Related Inventions and
Developments. To the fullest extent permitted by law, such Company-Related
Inventions and Developments will be deemed works made for hire. The Executive
hereby transfers and assigns to the Company any proprietary rights which he may
have or acquire in such Company-Related Inventions and Developments, and he
waives any other special rights which he may have or accrue therein. The
Executive agrees to execute any documents and take any actions that may be
required to effect and confirm such transfer, assignment and waiver. The
provisions of this Agreement will apply to all Company-Related Inventions and
Developments which are conceived or developed by the Executive during his
employment with the Company, whether or not further development or reduction to
practice may take place after termination of his employment, for which purpose
it will be presumed that any Company-Related Inventions and Developments
conceived by the Executive which are reduced to practice within one year after
termination of his employment were conceived during the term of his employment
with the Company unless he is able to establish a later conception date by clear
and convincing evidence.
The Executive represents and warrants that all Inventions and Developments made
and currently or previously owned by him prior to his employment by the Company
and that have not otherwise been assigned, transferred or sold to the Company in
connection with the consummation of the transactions contemplated by the Merger
Agreement, are disclosed in the Schedule attached to this Agreement.
The Executive agrees promptly to disclose to the Company, or to persons
designated by it, all Company-Related Inventions and Developments which are or
may be subject to the provisions of
4
29
this Agreement.
The Executive further agrees to assist the Company, at the Company's request
from time to time and at its expense, to obtain and enforce patents, copyrights
or other proprietary rights with respect to the Company-Related Inventions and
Developments in any and all countries. The Executive will execute all documents
reasonably necessary or appropriate for this purpose. This obligation will
survive the termination of the Executive's employment, provided that the Company
will compensate him at a reasonable rate after such termination for time
actually spent by the Executive at the Company's request on such assistance. In
the event that the Company is unable, after using its best efforts, to secure
the Executive's signature to any document reasonably necessary or appropriate
for any of the foregoing purposes (including renewals, extensions,
continuations, divisions or continuations in part), the Executive hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agents and attorneys-in-fact to act for him and on his behalf,
but only for the purpose of executing and filing any such document and doing all
other lawfully permitted acts to accomplish the foregoing purposes, with the
same legal force and effect as if executed or done by the Executive.
5
30
5. NONSOLICITATION OF CUSTOMERS
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not, directly or
indirectly, in any capacity solicit the business or trade of any Customer for
himself or for any other person or entity engaged in or for the purpose of
providing the same Services to such Customer.
6. UNFAIR COMPETITION
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not, directly or
indirectly, in any capacity, whether as owner, partner, director, shareholder,
consultant, agent, employee, co-venturer or otherwise, engage, participate,
assist or invest in any business activity within the United States that involves
the development, production, sale, provision or marketing of Services that
directly or indirectly compete with the Company. The foregoing will not prevent
the Executive from owning up to five (5) percent of the outstanding securities
of a publicly-held corporation which competes with the Company, or from being
employed by or affiliated or associated with any person or entity after
termination of his employment with the Company so long as he does not have any
direct or indirect involvement on behalf of any such person or entity with
respect to developing, producing, selling, providing or marketing Services in
competition with the Company. Upon the Executive's reasonable request, the
Executive and the Company shall discuss in good faith whether a particular
activity would violate this provision.
7. NONSOLICITATION OF EMPLOYEES
During Executive's employment and during the Restricted Term, regardless of the
reason for termination of his employment, the Executive will not directly or
indirectly, in any capacity:
(i) be personally involved, directly or indirectly through any
enterprise with which he is associated, in the hiring or
employment of any current employee or full-time consultant of
the Company; or
(ii) recruit, solicit or induce (or in any way assist another
person or enterprise in recruiting, soliciting or inducing)
any employee or full-time consultant of the Company to
terminate his or her employment or other relationship with the
Company.
For purposes of this Section, the term "consultant" shall refer to
individuals who perform services for the Company on an independent
contractor and consulting basis, not the entity for whom they may be
employed.
Notwithstanding the foregoing, nothing in this paragraph shall prevent
the Executive or his employer from placing blind advertisements or
hiring recruiters on a neutral basis in order to recruit generally.
6
31
8. ACKNOWLEDGMENTS
The Executive acknowledges and agrees that the restrictions set forth in this
Agreement are intended to protect the Company's interest in its Confidential
Information and its commercial relationships and goodwill (with its customers,
prospective customers, vendors, consultants and employees), including, without
limitation, Confidential Information, commercial relationships and goodwill
acquired by the Company through the Merger with TechForce, or developed while
the Executive was employed by the Company, and are reasonable and appropriate
for these purposes. The Executive acknowledges that based on his unique skills,
position and exposure to Confidential Information, the breach, or threatened
breach, by him of the provisions of this Agreement may cause irreparable harm to
the Company, which harm cannot be fully redressed by the payment of damages to
the Company. The Executive also acknowledges that Company's Customers are
located throughout the United States and that a business competitive with the
Company may be carried on anywhere within the United States as a result of the
unique use of telephonic, technologic and other advanced communications
techniques. Therefore, the Executive acknowledges that the geographical
application of this Agreement is reasonable under the circumstances. The
Executive further acknowledges that: (i) in the event his employment with the
Company terminates for any reason, he will be able to earn a livelihood without
violating the foregoing restrictions and (ii) his ability to earn a livelihood
without violating such restrictions is a material condition to his employment
with the Company.
9. DISCLOSURE OF AGREEMENT
As long as it remains in effect, the Executive will disclose the existence of
this Agreement to any prospective employer, partner, co-venturer, investor or
lender prior to entering into an employment, partnership or other business
relationship with such person or entity.
10. INJUNCTION
The Executive agrees that it may be difficult to measure any damages caused to
the Company which might result from any breach by the Executive of the promises
set forth in this Agreement (except for those set forth in Sections 9 and 10),
and that in any event money damages may be an inadequate remedy for any such
breach. Accordingly the Executive agrees that if the Executive breach, or
threatens to breach, any portion of Agreement (other than Sections 9 and 10),
the Company may be entitled, in addition to all other remedies that it may have,
to have an injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to the Company.
11. MISCELLANEOUS PROVISIONS
(a) Severability. If any provision, section or subsection of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, then the court may amend such portion or provision so as to comply with
the law or, if it declines to do so, the void or unenforceable section or
subsection shall not affect the validity of the remainder of the
7
32
Agreement, each section or subsection of which shall be enforceable to the
fullest extent permitted by law.
(b) Waiver. Any failure of the Company to demand rigid adherence to one
or more of this Agreement's terms, on one or more occasion, shall not be
construed as a waiver nor deprive the Company of the right to insist upon strict
compliance.
(c) Governing Law. This is a New York contract and shall be construed
under and be governed in all respects by the laws of the State of New York,
without giving effect to the conflict of laws principles of such State. With
respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the Second Circuit.
(d) Legal Fees and Costs. In any action brought by either party to
enforce this Agreement, the prevailing party shall be entitled to be reimbursed
for reasonable legal fees and the costs of litigation by the other party.
(e) Entire Agreement. This agreement and any agreement to which it is
attached and made part of constitute the entire agreement between the parties
with respect to the subject matter herein and supersede all prior agreements,
whether oral or written, between the parties and/or any predecessors in
interest, including without limitation TechForce, with respect to any related
subject matter. This agreement may not be modified or amended except by a
writing signed by Executive, a duly-authorized representative of the Company and
Xxxxxxx Xxxxxxxxx.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by
Executive on this 30th day of June 1999.
--------------------------------
Xxxx Xxxxxxx
8
