EXHIBIT 10.15
NON-COMPETITION, NON-DISCLOSURE AND INVENTION AGREEMENT
THIS AGREEMENT dated as of ___________________, is entered into by and
between TELTRUST, INC., a Utah corporation (collectively, with its subsidiaries,
the "Company"), and _________________________ (the "Employee").
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by each of the parties hereto, the parties hereto agree
as follows:
Non-Competition.
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(a) During the Employee's employment by the Company, the Employee will be a
full-time employee of the Company. During such employment, the Employee will
not [except as described in Exhibit A attached hereto] engage in any outside
business activity of any type other than purely passive investment activity.
(b) In addition, during the Employee's employment by the Company, and for a
period of 182 days thereafter (such 182 day period, as the same may be extended
in accordance with Section 1(e) below, being referred to as the "Non-Compete
Term"), the Employee will not, directly or indirectly, engage, participate or
invest, as owner, part-owner, shareholder, partner, member, manager, director,
officer, trustee, employee, agent, consultant, independent contractor or in any
other capacity, in any Competitive Business or engage in any Solicitation
Activities (the terms "Competitive Business" and Solicitation Activities" being
defined in Section 1(f) below).
(c) Notwithstanding the provisions of Section 1(b) above, while the
Employee is employed by the Company and thereafter during the Non-Compete Term,
the Employee may hold purely as a passive investor not more than 1% of any class
of securities of any person or entity (whether publicly or privately held) that
is engaged in a Competitive Business.
(d) The Company shall tender to the Employee, during each of the Company's
normal employee pay periods during the Non-Compete Term an amount equal to 100%
of the Employee's highest base salary during the ninety-day period immediately
prior to the termination of the Employee's employment (inclusive of bonuses and
commissions, if any, earned during such period in the ordinary course of
business, but exclusive of discretionary bonuses awarded annually), net of any
applicable Social Security, tax and similar deductions.
(e) The Company shall have the right and option, in its sole and absolute
discretion, to extend the Non-Compete Term for up to five (5) consecutive
additional periods of 182 days following the end of the initial 182-day period
commencing on the date the Employee's employment with the Company is terminated
(each 182-day period being referred to as a "Six Month Period"). The Company
may exercise such right and
option by giving the Employee notice thereof not less than 90 days prior to the
last day of the then current Six Month Period. The Company shall continue to pay
the Employee the amounts contemplated by Section 1(d) above throughout each Six
Month Period during which the Company shall elect to extend the Non-Compete
Term. If the Company shall fail to give notice to the Employee of the extension
of the Non-Compete Term 90 days or more prior to the end of the then current Six
Month Period as provided above, then the Non-Compete Term shall expire at the
end of the then current Six Month Period, at which time neither the Company nor
the Employee shall have any further obligation under this Section 1.
(f) As used herein, the term "Competitive Business" shall include any sole
proprietorship, corporation, partnership, limited liability company, joint
venture or other business which is then engaged, or proposes to engage, in any
business activity in any geographic area anywhere in the world where the Company
then engages, or proposes to engage, in the same business activity or another
business activity which would compete with such business activity. As used
herein, the term "Solicitation Activities" shall include k(i) hiring, attempting
to hire or otherwise soliciting, for or on behalf of any entity or person, any
officer or other employee of the Company, or authorizing or approving any such
action by any other person, (ii) encouraging for or on behalf of any entity or
person any officer or other employee to terminate his or her relationship or
employment with the Company, (iii) soliciting for or on behalf of any entity or
person any customer of the Company and (iv) diverting or attempting to divert to
any entity or person any customer of the Company.
Confidential Information.
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The Employee shall not at any time, whether during or after the termination
of the Employee's employment, disclose to any person or entity or use in any
respect, any "Confidential Information" (as hereinafter defined) of which the
Employee is or becomes aware, whether or not such information is developed by
the Employee, except to the extent that such disclosure or use is directly
related to and required by the Employee's performance of duties assigned to the
Employee by the Company. The Employee shall take all appropriate steps to
safeguard Confidential Information and to protect it against disclosure, misuse,
loss and theft. For purposes of this Agreement, "Confidential Information"
shall mean information that is not generally known to the public and that is
used, developed or obtained by the in connection with its business, including
but not limited to, (i) products or services, (ii) fees, costs and pricing
structures, (iii) designs, analysis, flow charts, drawings, research and
reports, (iv) inventions, improvements, devices, new developments, methods and
processes, whether patentable or unpatentable and whether or not reduced to
practice, (vii) customers and clients and customer and client lists, (viii)
copyrightable works, (ix) all technology, know-how, techniques, data and trade
secrets and (x) all similar and related information in whatever form.
Confidential Information shall not include any information that has been
published in a form generally available to the public prior to the date the
Employee proposes to disclose or use such information. Information shall not be
deemed to have been published merely
because portions of the information have been separately published, but only if
all material components comprising such information have been published in
combination.
All Confidential Information is and shall remain the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole owner
of all trade secrets, patents, copyrights and other rights in connection
therewith. All documents, lists, reports, drawings, software programs, notes,
memoranda, records, apparatus, equipment and other physical property, whether or
not pertaining to Confidential Information, furnished to the Employee by the
Company or produced by the Employee or others in connection with such employee's
employment with the Company or produced by the Employee or others in connection
with such employee's employment with the Company shall be in remain the sole
property of the Company. The Employee shall return the Company all such
materials and property and any photocopies or reproductions thereof as and when
requested by the Company, but in any event immediately upon Employee's
termination of employment with the Company.
Inventions.
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(a) If at any time or times during the Employee's employment, the Employee
makes, conceives, develops, creates, discovers, invents or reduces to practice,
in whole or in part, either alone or jointly with others, any invention,
modification, discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data, technique, know-how,
trade secret or intellectual property right whatsoever or any interest therein
(whether or not patentable or registrable under copyright, trademark or similar
statutes or subject to analogous protection) (herein called "Developments") that
(a) relates at the time of inception or reduction to practice thereof to actual
or demonstrably anticipated business of the Company or to its actual or
demonstrably anticipated research and development, including without limitation,
to any customer of or supplier to the Company or to any of the products of
services being developed, manufactured or sold by the company or which may be
used in relation therewith; (b) results from tasks assigned to the Employee
and/or performed by the Employee on Company time or through the use of the
company's resources, premises and property (whether tangible or intangible),
such Developments and benefits thereof are and immediately shall become the sole
and absolute property of the company and its assigns, and to the furthest extent
permitted by law shall be deemed works made for hire. The Company and its
assigns shall be the sole owner of all patents, copyrights, and other rights in
connection therewith. The Employee hereby assigns any rights the Employee may
have or acquire in the Developments and benefits or rights resulting therefrom
the to the Company and its assigns without further compensation and shall
communicate, without coast or delay, and without disclosing to others all
available information relating thereto (including, without limitation, all
necessary plans, diagrams, models and reports) to the Company.
(b) With respect to the Developments described in Section 3(a) above, the
Employee will during the Employee's employment with the Company and at any time
thereafter, at the request and cost of the Company, promptly sign, execute and
take all steps and perform all acts as the Company may reasonably request:
(i) to apply for, obtain, register and vest in the name of the Company
alone (unless otherwise directed by the Company) letters patent, copyrights,
trademarks or other analogous protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and
(ii) to defend any judicial opposition or other proceeding in respect
of such applications and any judicial opposition or other proceedings or
petitions or applications for revocation of such letters patents, copyrights,
trademarks or other analogous protection.
In the event the Company is unable for any reason to secure the
Employee's signature on any application for letters patent, copyright or
trademark registration or other documents regarding any legal protection
relating to a Development or reasonably necessary or appropriate for any of the
foregoing purposes (including renewals, extensions and continuations), the
Employee hereby irrevocable designates the Company and its duly authorized
officers and agents, as the Employee's agents and attorneys-in-fact to act for
and on the Employee's behalf and stead for purposes of executing and filing any
such documents, certificates and application s and doing all other lawfully
permitted acts to further the prosecution and issuance of letters patent,
copyrights and trademark registrations or any other analogous legal protection
thereon.
No Employment Contract.
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The Employee acknowledges and agrees that the Employee is employed by the
Company on an at-will basis, and this Agreement does not constitute a contract
of employment and does not create any obligation on the Company or any other
person or entity to continue the Employee's employment.
General.
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(a) The parties hereto agree that any breach by the Employee of any
provision of this Agreement will cause irreparable damage to the Company and no
adequate remedy exists at law for the Company in the event of a breach hereof by
the Employee. In the event of such breach, the Company shall have, in addition
to any and all remedies of law, the right to an injunction, specific performance
or other equitable relief.
(b) In case any of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement. Instead, this Agreement shall be
construed as if such invalid, illegal or
unenforceable provision or part of an invalid, illegal or unenforceable
provision had been limited or modified (consistent with its general intent) to
the extent necessary so that it shall be valid, legal and enforceable, or if it
shall not be possible to so limit or modify such invalid or illegal or
unenforceable provision or part of a provision, this Agreement shall be
construed as if such invalid or legal or unenforceable provision or part of a
provision had never been contained herein, and the parties hereto will use their
best efforts to substitute a valid, legal and enforceable provision which,
insofar as practicable, implements the purpose and intent of the provision or
part of such provision originally contained herein.
(c) This Agreement supersedes all prior agreements, written or oral,
between the Employee and the company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole
or in part, except by agreement in writing signed by the Employee and the
Company. The Employee agrees that nay change or changes in the Employee's
duties, salary, or compensation after signing this Agreement shall not affect
the validity or scope of this Agreement.
(d) The Employee's obligations under this Agreement shall survive the
termination of the Employee's employment regardless of the manner of such
termination and shall be binding upon the Employee's heirs, executors and
administrators and will inure to the benefit of the Company and its successors
and assigns.
(e) No delay or omission by the Company in exercising any right under this
Agreement will operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion is effective only in that
instance and will not be construed as a bar to or waiver of any right on any
occasion.
(f) The Employee expressly consents to be bound by the provisions of this
Agreement for the benefit of the Company or any subsidiary or affiliate thereof
to whose employ the Employee may be transferred without the necessity that this
Agreement be re-signed at the time of such transfer.
(g) This Agreement is governed by and shall be construed as a sealed
instrument under and in accordance with the laws of the State of Utah.
This Agreement may be executed in multiple counterparts, with the same
force and effect as if all the signatures thereto appeared on the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as an
instrument under seal as of the date first set forth above.
TELTRUST, INC.
By:
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Name:
Title:
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[Employee]
