Exhibit 10.1.19
NONCOMPETITION AGREEMENT
THIS AGREEMENT, entered into as of this _____ day of _______, 19__, by and
between ADVANCED TELECOMMUNICATIONS, INC., a Minnesota corporation ("ATI") and
_______________________ ("Employee")
Employee recently commenced [his/her] employment with ATI. ATI has
provided Employee with certain incentive stock options conditioned upon
[his/her] agreement to enter into this Noncompetition Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. Definitions. The following definitions are used in this Agreement:
"Confidential Information" means information learned or acquired by
Employee during Employee's employment by any Related Entity, including
without limitation, (i) all technical information relating to any Related
Entity; (ii) any information concerning any marketing programs or
strategies sued by any Related Entity, or any product or service under
development by, or being tested by, any Related Entity but not yet offered
for sale; (iii) any information concerning the pricing policies or the
prices charged by any Related Entity to any Customer, the volume of orders
of any Customer, any bids or negotiations being submitted by or being
conducted by any Related Entity and all other information concerning the
transactions of any Related Entity with any Customer or proposed Customer;
(iv) any financial information concerning the salaries or wages paid to,
the work records of or any other personnel information relating to any
employee of any Related Entity; and (v) any other information determined
by any Related Entity to be confidential and proprietary and which is
identified as confidential and proprietary prior to or at the time of its
disclosure to Employee.
"Customer" means (i) any person which, at any time during the term
of Employee's employment by any Related Entity purchased products or
services from, or was solicited to purchase products or services from any
Related Entity, and (ii) during the Restricted Period, any person which,
at any time during the 2 year period immediately prior to the date of
termination of Employee's employment with the Related Entities, purchased
products or services from, or was solicited to purchase products or
services from, any Related Entity.
"Related Entity" means ATI and any other person which ATI directly
or indirectly controls and any other affiliate of ATI for which Employee
performs services or about which Employee has Confidential Information at
any time during the 2-year period immediately preceding the termination of
Employee's employment with any such entity.
"Restricted Period" means the 2-year period immediately following
the date Employee ceases to be an employee of any Related Entity.
"Restricted Territory" means any of those counties in which any
Related Entity makes material sales during the term of Employee's
employment by any Related Entity and any location within 50 miles of such
counties.
"Subject Businesses" means (i) during the term of Employee's
employment with any Related Entity, those businesses conducted by any
Related Entity, and (ii) during the Restricted Period, any businesses
conducted by any Related Entity at any time during the 2-year period
immediately prior to the date of termination of Employee's employment.
"Subject Products" means (i) during the term of Employee's
employment with any Related Entity, the types of products and services
which any Related Entity sold, serviced, leased or maintained, and (ii)
during the Restricted Period, the types of products which any Related
Entity sold, serviced, leased or maintained at any time during the 2-year
period immediately prior to the date of termination of Employee's
employment with the Related Entities.
"Supplier" means (i) during the term of Employee's employment with
any Related Entity, any Person which sold products or services to any
Related Entity, and (ii) during the Restricted Period, any Person which,
at any time during the 2-year period immediately prior to the date of
termination of Employee's employment with the Related Entities, sold
products or services to any Related Entity.
2. Non-Competition. Employee will not, during [his/her] employment by any
Related Entity or after such employment during the Restricted Period, directly
or indirectly, whether as agent, stockholder (except as the holder of not more
than 5% of the stock of a publicly held company, provided Employee does not
participate in the business of that company or render advice or assistance to
it), employee, officer, director, trustee, partner, consultant, proprietor or
otherwise, except on behalf of the Related Entities;
(a) Acquire an ownership interest in, engage in or render advice or
assistance to any business which sells, services, leases or otherwise
maintains any of the Subject Products or which otherwise competes with the
Subject Businesses anywhere within the Restricted Territory.
Notwithstanding the foregoing, Employee may be employed by:
(i) any customer of any of the Subject Businesses after the
termination of Employee's employment with the Related Entities,
provided such customer does not conduct a business which sells,
services, leases or maintains any of the Subject Products or which
otherwise competes with the Subject Businesses anywhere within the
Restricted Territory;
(ii) any competitor of any of the Subject Businesses after the
termination of Employee's employment with the Related Entities,
provided all of the following conditions are satisfied: (A) Employee
does not perform any services for such competitor in the Restricted
Territory; and (B) Employee does not any time violate
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any of the other provisions of this Agreement in the course of the
performance of services for such competitor.
(b) Entice or attempt to entice any of the Suppliers or Customers to
cause, or attempt to cause, any Supplier or Customer not to do business,
or reduce its business, with any Related Entity.
(c) Hire or attempt to hire any employees, contractors or agents of
any Related Entity, or attempt to induce any of those parties to leave
their employment relationship with any Related Entity.
3. Confidential Information. Employee will not at any time during the term
of Employee's employment by any Related Entity or thereafter during the
Restricted Period disclose any Confidential Information to any person other than
an employee or agent of any Related Entity having the need to know that
information in the ordinary course of business.
4. Remedies in the Event of Breach. Employee recognizes that irreparable
injury may result to the Related Entities if Employee breaches the restrictions
imposed by this Agreement. Employee's engagement in any act in violation of this
Agreement will entitle the Related Entities, and each of them, in addition to
any other remedies and damages available to them, to an injunction prohibiting
Employee from engaging in such act.
5. Reasonableness of Restrictions. By entering into this Agreement,
Employee acknowledges (i) that Employee is familiar with the nature of the
Subject Businesses and the Subject Products; (ii) that Employee has read and
understands the nature and scope of the restrictions imposed by this Agreement;
and (iii) that the Related Entities have invested and will continue to invest
substantial effort and sums of money to develop and promote the Subject Products
and goodwill of the Related Entities. EMPLOYEE THEREFORE ACKNOWLEDGES AND
REPRESENTS THAT THE SCOPE OF THOSE RESTRICTIONS ARE APPROPRIATE, NECESSARY AND
REASONABLE FOR THE PROTECTION OF THE BUSINESS, GOODWILL AND PROPERTY RIGHTS OF
THE RELATED ENTITIES AND WILL NOT PREVENT EMPLOYEE FROM EARNING A LIVING
SUBSEQUENT TO THE DATE OF THIS AGREEMENT.
6. Assignment. ATI may not assign this Agreement without the written
consent of Employee; provided, however, that (a) upon the transfer of
substantially all of the assets of or a change of control of ATI, this Agreement
will inure to the benefit of the successor employer, and (b) ATI may assign this
Agreement to any person controlled by, controlling or under common control with
ATI. This Agreement will bind and inure to the benefit of the parties to this
Agreement, their respective successors, assigns, heirs and legal
representatives.
7. Invalidity, Modification. If a court rules that any part of this
Agreement is unenforceable, the unenforceable part may be modified by the court
to make it enforceable, or it may be severed and the other parts of the
Agreement will remain enforceable.
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8. Governing Law and Choice of Forum. This Agreement is governed by and
will be construed in accordance with the internal laws of the State of
Minnesota. All suits with respect to this Agreement must be heard by courts
having their forum within the State of Minnesota.
ATI:
ADVANCED TELECOMMUNICATIONS, INC.
By________________________________________
Its_______________________________________
EMPLOYEE:
_________________________________________
[insert Employee name]
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