Exhibit 10(j)
CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
This Agreement is entered into between CheckFree Corporation, its
parents, subsidiaries, affiliates, successors and assigns (collectively referred
to as "the Company"), and Xxxxx Xxxxx ("Associate"), effective this 7th day of
May, 1999.
DEFINITIONS
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For the purposes of this Agreement, the following definitions
shall apply:
"Trade Secrets" shall mean information not generally known
about the Company's business which is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy or
confidentiality and from which the Company derives economic value from
the fact that the information is not generally known to other persons
who can obtain economic value from its disclosure or use. Trade Secrets
include, but are not limited to, technical or non-technical data,
compilations, programs and methods, techniques, drawings, processes,
financial data, lists of actual customers and potential customers,
customer route books, cards or lists containing the names, addresses,
buying habits and business locations of past, present and prospective
customers, sales reports, price lists, product formulae, methods and
procedures relating to services.
"Confidential Information" means other business information of
the Company not generally known to the public and which the Company
desires and makes reasonable efforts to keep confidential.
"Products" shall mean those products regarding which Associate
has been exposed to Confidential Information during the twelve month
period prior to the termination of employment. Associate agrees that
the Products constitute Trade Secrets or Confidential Business
Information of the Company.
"Competing Business" shall mean any person or entity which
sells, licenses or otherwise distributes software or offers processing
services which perform the same or substantially the same functions as
the Products. Specifically, and without restricting the generality of
the foregoing, such companies include First Data, Microsoft, Edocs, and
M&I.
"Territory" shall mean the territory in which Associate worked
during the last twelve months of his employment with the Company and is
defined for purposes of this Agreement as USA. The parties hereto agree
that the Company serves customers throughout the Territory and
Associate's duties and responsibilities hereunder extend throughout the
Territory. Associate acknowledges that the Company and Associate may
change the Territory at any time by either reflecting any such change
on an Amended Confidentiality and Non-competition Agreement, executed
by Associate, or by Associate's acceptance of an assignment to such new
Territory.
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CONFIDENTIAL INFORMATION
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The Associate covenants and agrees that he will not at my such time,
other than in the performance of his duties for the Company, both during and
after his employment by the Company, communicate or disclose to any person or
entity, or use for his benefit or for the benefit of any other person or entity,
directly or indirectly, any of the Company's Trade Secrets and/or Confidential
Information. For the purposes of this Agreement, the prohibition against the
disclosure of Confidential Information only shall end twenty-four (24) months
after the termination, for any reason, of Associate's employment with the
Company. The disclosure of Trade Secrets by the Associate is prohibited for the
life of the Associate, or until the trade secret information becomes publicly
available through no fault of the Associate.
AGREEMENT NOT TO SOLICIT CUSTOMERS
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Associate acknowledges that he will be providing unique services to the
Company which both parties expect will result in the creation of goodwill for
the Company among its customers and industry contacts. Associate's duties may
include participating in developing relationships with particular customers on
the Company's behalf. Accordingly, Associate covenants and agrees that during
his employment by the Company and for a period of one year following the
termination of such employment for any reason, he will not, without the prior
written consent of the Company, either directly or indirectly, on his own behalf
or on behalf of others, solicit with a view to selling or providing any product,
equipment or service competitive with the Products, or attempt to divert or
appropriate to a Competing Business, any customer or potential customer of the
Company with whom the Associate dealt on behalf of the Company at any time
during the 12 months immediately preceding termination of his employment and to
whom the Associate was introduced through his employment with the Company.
Nothing in this paragraph shall be construed to prohibit Associate from
soliciting individuals or entities with whom he had a relationship prior to his
employment with the Company.
AGREEMENT NOT TO COMPETE
------------------------
Associate covenants and agrees that during employment by the Company
and for a period of one year after termination of such employment for any
reason, Associate will not, without prior written consent of the Company,
directly or indirectly, within the Territory, on behalf of himself or any
Competing Business, engage in any business in which Associate provides services
which are the same or substantially similar to Associate's duties during the
last twelve months of his employment with the Company as described in this
Agreement. Associate acknowledges that nothing in this paragraph prohibits him
from engaging in his entire business, trade or profession but that this
paragraph only narrowly restricts him from engaging in a small or limited
segment of the industry.
AGREEMENT NOT TO SOLICIT ASSOCIATES
-----------------------------------
During his employment by the Company and for a period of one year
following termination of such employment for any reason, Associate will not
either directly or indirectly,
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within the Territory, solicit, divert or recruit any associate of the Company to
leave such employment to work for a Competing Business.
COMPANY PROPERTY
----------------
Employee covenants and agrees that at any time upon request from the
Company Associate will promptly deliver to the Company the originals and all
copies of any document obtained or prepared during employment that are in
Associate's possession, custody or control, and any other property belonging to
the Company. In addition, Associate covenants and agrees to return all Company
property to the Company immediately upon termination of employment.
ASSOCIATE INVENTIONS
--------------------
Associate hereby assigns and agrees to assign to the Company, its
successors, assigns, or designees, all of Associate's rights to inventions,
improvements, discoveries, processes, formulae, designs, technical information,
know-how, data, specifications, trade secrets, test results, patents,
trademarks, copyrights, computer programs, and other proprietary information
("Inventions") which, during the term of Associate's employment by the Company,
Associate makes, develops, or conceives, either solely or jointly with others,
in the course of such employment or with the use of the Company's equipment,
supplies, facilities or trade secrets.
Associate also assigns and agrees to assign all of Associate's rights
to Inventions for which no equipment, supplies, facilities or trade secrets of
the Company were used and which were developed entirely on Associate's own time,
if : (1) the Invention related at the time of conception or reduction to
practice of the Invention to the Company's business or the Company's actual or
demonstrably anticipated research or development; or (2) the Invention results
from any work performed by Associate for the Company.
Associate agrees to fully and promptly disclose in writing to the
Company any such Inventions as such Inventions from time to time may arise.
Associate further agrees, without charge to the Company other than reimbursement
of Associate's reasonable out-of-pocket expenses, to execute and deliver all
such further documents, including applications for patents and copyrights, and
to perform such acts, at any time during or after the term of this Agreement as
may be necessary, to obtain patents or copyrights in respect of the Inventions
and to vest title such Inventions in the Company, its successors, assigns, or
designees and to carry out the purpose of this Section. Without limiting the
generality of the foregoing, Associate further agrees to give all lawful
testimony, during or after the term of Associate's employment, which may be
required in connection with any proceedings involving any Invention, Trade
Secret, patent or patent application so assigned by Associate.
ASSOCIATE WARRANTY
------------------
Associate warrants that his employment with the Company does not
constitute a breach of any agreement between Associate and any other party, nor
will it violate any other party's proprietary rights.
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REMEDIES
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Associate acknowledges and agrees that by virtue of the duties and
responsibilities attendant to his employment by the Company and the special
knowledge of the Company's affairs, business, clients and operations that he has
and will have as a consequence of such employment, irreparable loss and damage
will be suffered by the Company if Associate should breach or violate any of the
covenants and agreements contained herein. Associate further acknowledges and
agrees that each of such covenants is reasonably necessary to protect and
preserve the Company Business and the assets of the Company. Associate therefore
agrees and consents that, in addition to any other remedies available to the
Company, the Company shall be entitled to an injunction to prevent a breach or
contemplated breach by Associate of any of the covenants or agreements contained
in such paragraphs.
Nothing contained in this Agreement shall limit, abridge or modify the
rights of the parties under applicable trade secret, trademark, copyright or
patent law or under the laws of unfair competition.
ATTORNEYS FEES
--------------
Associate agrees and acknowledges that if the Company successfully
enforces any right under this Agreement through legal process of any kind, then
the Company shall be entitled to recover from Associate its costs of such
enforcement, including reasonable attorneys fees.
BINDING AGREEMENT
-----------------
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Company. This Agreement is a personal service Agreement and may not be
assigned in whole or in part by Associate.
SEVERABILITY
------------
The provisions of this Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable in whole
or in part, the remaining provisions, and any partial enforceable provision to
the extent enforceable in any jurisdiction, shall nevertheless be binding and
enforceable. Should any court of competent jurisdiction determine that the
public policy of such jurisdiction requires a more limited restriction in
geographic area, duration, nature of restricted activity or any other aspect of
this Agreement, it would be in furtherance of the intentions, of the parties
hereto for the court to so interpret and construe the terms of this Agreement in
the manner necessary to render its terms enforceable.
WAIVER
------
The waiver by one party of a breach of any provision of this Agreement
by the other party shall not operate or be construed as a waiver of any
subsequent breach of the same or any
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other provision by the other party. The failure of a party at any time to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same.
ENTIRE AGREEMENT
----------------
This Agreement sets forth the entire agreement of the parties and
supersedes all prior agreements and understandings between the parties relating
to its subject matter.
MODIFICATION
------------
This Agreement may be amended, modified or superseded only by a writing
signed by the party against whom enforcement is sought. Associate acknowledges
and understands that Company may request modification or re-execution of this
agreement or execution of a similar agreement in the future, for new
consideration, but no such request, or absence of such request of Associate,
affects the validity or term of the obligations assumed under this Agreement.
GENDER
------
Any reference to the male gender in this Agreement is intended to apply
equally and impartially to both males and females alike.
BINDING AGREEMENT
-----------------
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Company. The covenants of Associate contained in this Agreement shall be
binding upon the heirs and legal representatives of Associate and shall survive
the termination of this Agreement.
CAPTIONS AND PARAGRAPH HEADINGS
-------------------------------
Captions and paragraph headings used herein are for convenience only
and are not a part of this Agreement and shall not be used in construing this
Agreement.
CONSENT TO JURISDICTION
-----------------------
Associate and the Company agree that any legal action or proceedings
with respect to this Agreement may be initiated in the courts of the State of
Georgia and the Company and Associate hereby agree to subject themselves to the
jurisdiction of the federal and state courts of Georgia with respect to any such
legal action or proceedings.
SURVIVAL
--------
Notwithstanding the expiration or termination of this Agreement by any
party for any reason whatsoever, the respect to rights and obligations set forth
herein will remain in full force and effect until they have been fully exercised
and discharged.
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IN WITNESS WHEREOF, the parties have executed this Agreement knowingly
and voluntarily on the respective dates set forth below.
OPTIONEE: CHECKFREE HOLDINGS CORPORATION
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxx X. Xxxxx Xxxxxx X. Xxxxx
Its: Sr. Vice President, Human Resources
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