Exhibit 10.9
Confidentiality, Developments, and Non-Competition Agreement 11/25/98
CONFIDENTIALITY, DEVELOPMENTS,
AND NON-COMPETITION AGREEMENT
This Agreement is made in consideration of my initial or continued
employment or consulting relationship with RoweCom Inc. (the "Company"), a
Delaware corporation, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
I hereby agree as follows:
1. Proprietary Information.
(a) As used in this agreement, the term "Confidential Information" means
all information of the Company, or of a third party that has disclosed or
entrusted such information to the Company in confidence, except information that
I demonstrate by clear and convincing evidence:
(i) was known to me prior to its disclosure to me by the Company, as
evidenced by written documents predating the commencement of my
employment or consulting relationship with the Company;
(ii) was public knowledge at the time of its disclosure to me by the
Company, or becomes public knowledge after such disclosure, through
no action or omission on my part; or
(iii) is lawfully disclosed or made available to me by a third party
having no obligation to the Company, or to any third party who
disclosed or entrusted such information to the Company in
confidence, to maintain the confidentiality of such information.
(b) All Confidential Information will remain the exclusive property of the
Company or the disclosing or entrusting third party, as the case may be, and
will be used by me exclusively for authorized purposes in connection with my
employment or consulting relationship with the Company. I will maintain the
confidentiality of all Confidential Information and hold it in trust for the
exclusive benefit of the Company or such third party, as the case may be. Unless
previously authorized in writing by the Company, I will not use or disclose
Confidential Information for any other purpose or for the benefit of myself or
others.
(c) I will promptly deliver to the Company, upon request, all business
plans and other documents and tangible media that contain or reflect
Confidential Information (including all copies, reproductions, digests,
abstracts, analyses, and notes) in my custody or control and I will destroy any
related computer entries on computer equipment not owned by the Company.
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(d) Except as disclosed below, I am not bound by any agreement with any
person or company (e.g., a former employer) to refrain from competing with or
using or disclosing any confidential or proprietary information of any person or
company. I will not disclose to or use for the Company any confidential or
proprietary information belonging to any other person or company.
EXCEPTIONS (if none, please say so):
2. Developments.
(a) Subject to the limitation set forth in Section 2(c) below, I will make
full and prompt disclosure to the Company of all inventions, improvements,
discoveries, methods, developments, software, and works of authorship, whether
patentable or copyrightable or not, that are created, made, conceived, or
reduced to practice by me or under my direction or jointly with others during my
employment or consulting relationship with the Company, whether or not made,
created, conceived, or reduced to practice during normal working hours or on the
premises of the Company (collectively, "Developments").
(b) Subject to the limitation set forth in Section 2(c) below, I agree to
assign and do hereby assign to the Company without further consideration all of
my rights, titles, and interest in and to all Developments and all related
patents, patent applications, copyrights, and copyright registrations and
applications therefor, relating to the then present or planned business or
research and development of the Company. If requested by the Company, I will
assist it to apply for and obtain any patents or copyright registrations (both
in the United States and in foreign countries) relating to any Developments, and
I will execute and deliver or file to the Company all applications,
certificates, instruments, and other documents requested by the Company in
connection therewith, all at the Company's expense. I hereby irrevocably appoint
the Company as my agent and attorney-in-fact, with full power of substitution,
for me and on my behalf to execute and deliver or file any
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such application, certificate, instrument, or document. This power of attorney
is irrevocable and coupled with an interest on the part of the Company.
(c) Notwithstanding any other provision hereof, this Section 2 will not
apply to inventions, improvements, discoveries, methods, developments, software,
and works of authorship that do not relate to the present or planned business or
research and development of the Company and that are made and conceived by me
not during normal working hours, not on the Company's premises, and not using
the Company's tools, devices, equipment, property, or Confidential Information.
I understand that to the extent this Agreement will be construed in accordance
with the applicable laws of any state that preclude the assignment of certain
classes of Developments made by an employee or contractor with the Company, this
Section 2 will be interpreted not to apply to any Development that a court rules
and/or the Company agrees falls within such classes.
3. Certain Covenants. I hereby covenant as follows, which covenants will
be in addition to, and not exclusive of, any other confidentiality,
noncompetition, nonsolicitation, assignment-of-inventions, and similar
obligations to which I may be subject from time to time.
(a) Non-Competition. During any period during which I am employed by or
acting as a consultant to the Company, and for a period of 12 months following
the date of termination of my employment or consulting relationship with the
Company (which periods will automatically be extended by a period of time equal
to any period in which I am in breach of any obligations under this Section 3;
including any such extension, the "Restricted Period"), I will not engage,
directly or indirectly, as a proprietor, equityholder, investor (except as a
passive investor holding not more than 2% of the outstanding capital stock of a
publicly held company), lender, partner, director, officer, employee,
consultant, or representative, or in any other capacity, in any business
presently engaged in by the Company or any of its subsidiaries, or in which the
Company or any of its subsidiaries may engage at any time during the period of
my employment or consulting relationship with the Company, or in which at the
time of such termination, the Board of Directors of the Company or any of its
subsidiaries has formally resolved to engage, in any geographic area in which
the Company or any of its subsidiaries is presently doing business, or in which
where the Company or any its subsidiaries may be doing business at any time
before the termination of my employment or consulting relationship with the
Company, or in which at the time of such termination, the Board of Directors of
the Company or any of its subsidiaries has formally resolved to engage.
(b) Non-Solicitation, Etc. During the Restricted Period, I will not
directly or indirectly recruit, solicit, induce, or attempt to induce any of the
employees or consultants of the Company or any of its subsidiaries to terminate
their employment or consulting relationship with the Company or such subsidiary;
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and will not assist any other person or entity to do so, or be a proprietor,
equityholder, investor (except as a passive investor holding not more than 2% of
the capital stock of a publicly held company), lender, partner, director,
officer, employee, consultant, or representative of any person or entity who
does or attempts to do so.
(c) Non-Solicitation of Customers, Suppliers, Etc. During the Restricted
Period, I will not directly or indirectly solicit, divert, take away, or attempt
to divert or take away, from the Company or any of its subsidiaries any of the
business or patronage of any of their actual or potential customers, clients,
accounts, vendors, or suppliers, or induce or attempt to induce any such person
or entity to reduce the amount of business it does with the Company or any of
its subsidiaries, and I will not assist any other person or entity to do so, or
be a proprietor, equityholder, investor (except as a passive investor holding
not more than 2% of the capital stock of a publicly held company), lender,
partner, director, officer, employee, consultant, or representative of any
person or entity who does or attempts to do so.
(d) Non-Disparagement. Both during and following the term of this
Agreement and my employment or consulting relationship with the Company, I will
not disparage, deprecate, or make any negative comment with respect to the
Company or any of its subsidiaries or their respective businesses, operations,
or properties.
(e) Equitable Remedies. I hereby acknowledges that any breach by me of my
obligations under this Agreement would cause substantial and irreparable damage
to the Company, and that money damages would be an inadequate remedy therefor.
Accordingly, I acknowledge and agree that the Company will be entitled to an
injunction, specific performance, and/or other equitable relief to prevent the
breach of such obligations (in addition to all other rights and remedies to
which the Company may be entitled in respect of any such breach).
(f) Modification. In the event that a court of competent jurisdiction
determines that any of the provisions of this Agreement would be unenforceable
as written because they cover too extensive a geographic area, too broad a range
of activities, or too long a period of time, or otherwise, then such provisions
will automatically be modified to cover the maximum geographic area, range of
activities, and period of time as may be enforceable, and in addition, such
court is hereby expressly authorized so to modify this Agreement and to enforce
it as so modified. No invalidity or unenforceability of any section of this
Agreement or any portion thereof will affect the validity or enforceability of
any other section or of the remainder of such section.
4. No Employment or Consulting Contract. I understand and agree that this
Agreement does not constitute an employment or consulting contract and
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does not imply that my employment or consulting relationship with the Company
will continue for any period of time.
5. General.
(a) There are no conditions to the effectiveness of this Agreement. This
Agreement supersedes all prior agreements, written or oral, between me 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 an agreement
in writing signed by me and the Company. Any change or changes in any aspect of
my employment or consulting relationship with the Company (including my duties,
salary, or compensation) after the signing of this Agreement will not affect the
validity or scope of this Agreement.
(b) This Agreement will bind my successors, assigns, heirs, executors, and
administrators and will inure to the benefit of the Company and its successors
and assigns.
(c) 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 will be effective only in that
instance and will not be construed as a bar to or waiver of any right on any
other occasion.
(d) I agree to be bound by the provisions of this Agreement for the
benefit of the Company or any subsidiary or affiliate thereof to whose employ I
may be transferred without the necessity that this Agreement be re-executed at
the time of such transfer.
(e) This Agreement will be governed by and interpreted and construed in
accordance with the internal laws of the Commonwealth of Massachusetts, as
applied to contracts made, and entirely to be performed, within Massachusetts.
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IN WITNESS WHEREOF, I have executed and delivered this Agreement to the
Company as an agreement under seal as of the date indicated below.
I HAVE READ ALL OF THE PROVISIONS OF
THIS AGREEMENT AND I UNDERSTAND AND
AGREE TO EACH OF SUCH PROVISIONS.
Dated 10/7/99 /s/ Xxxxx Xxxxxxxxx
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(Signature)
Print Name: Xxxxx Xxxxxxxxx
Dated /s/ Xxxxxx Xxxxxxxxx
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(Witness)
