Exhibit 10(bb)
PROPRIETARY RIGHTS AND NON-COMPETE AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Tracer Design, Inc., an Arizona corporation ("TDI"), and
___________________________________ ("Covenantor"), hereby agree as follows:
1. Confidentiality: Covenantor acknowledges that Covenantor stands in a
relationship of confidence and trust with TDI regarding any information of a
confidential nature regarding TDI and its business, including, without
limitation, information regarding its finances, markets, customers, suppliers,
services, products, projects, plans, and information which may have been
disclosed by others to TDI in confidence ("Confidential Information").
Confidential Information shall not include information which Covenantor can
demonstrate: (i) is publicly available without the breach of this Agreement by
Covenantor, or (ii) was rightfully known to Covenantor without an obligation of
confidence prior to disclosure to Covenantor by TDI or its agents. Covenantor
agrees that he will at all times keep all Confidential Information strictly
confidential and will not use it for any purpose other than to perform
Covenantor's duties to TDI. Covenantor will immediately return all Confidential
Information upon request by TDI.
2. Proprietary Rights; Assignment: Covenantor hereby assigns to TDI all
Inventions created by Covenantor which are: (i) developed using TDI's equipment,
supplies, personnel, facilities, intellectual property or other property or
rights, (ii) result from work performed by Covenantor for TDI (as an independent
contractor consultant or otherwise), or (iii) related to the business, or
demonstrably anticipated business, of TDI and which are invented during such
time as Covenantor is a shareholder of TDI or during the 12 months after
Covenantor ceases to be a shareholder of TDI. Covenantor shall promptly disclose
all Inventions to TDI. Covenantor agrees to cooperate in all reasonable
respects, at the expense of TDI, in assisting TDI to obtain assignment, perfect,
maintain, protect and enforce TDI's rights in any Inventions assignable by
Covenantor under this provision. "Inventions" means any and all inventions or
discoveries, whether or not patentable, including, without limitation, original
works of authorship, designs, processes, methods of doing business, computer
programs, databases, improvements, and trade secrets and related proprietary
information and materials.
Covenantor claims only the Inventions shown below as Covenantor's Inventions
made prior to this Agreement:
________________________________________________________________________
________________________________________________________________________
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3. No misuse. Covenantor agrees not to improperly use any intellectual property
or other property or rights (including, without limitation, patents, copyrights
or trade secrets) of any third party. Covenantor will only use the intellectual
property and other property or rights of TDI to further the interests of TDI in
the performance of Covenantor's duties to TDI.
4. Non-compete; Non-solicitation: Covenantor agrees that:
(a) for so long as Covenantor is a shareholder of TDI,
Covenantor will not, in any capacity, for himself or for others,
directly or through others: (i) solicit business from any customer of
TDI or induce any TDI customer to withdraw or reduce their business
with TDI, (ii) induce any employee, agent, contractor or supplier to
change or terminate its relationship with TDI, or (iii) induce any
person not to do business or enter into a relationship with TDI; and
(b) for 24 months after Covenantor ceases to be a shareholder
of TDI, Covenantor will not, in any capacity, for himself or for
others, directly or through others: (i) solicit business from any
customer of TDI or induce any TDI customer to withdraw or reduce their
business with TDI (provided that in either case to be considered a
customer for purposes of this subsection (b), the "customer" must have
paid TDI for products or services within the 12 months immediately
preceding Covenantor's ceasing to be a shareholder of TDI), (ii) induce
any employee, agent, contractor or supplier to change or terminate
their relationship with TDI, (iii) induce any person not to do business
or enter into a relationship with TDI.
TDI and Covenantor specifically acknowledge and agree that the foregoing
covenants of Covenantor are reasonable in content and scope, are given for
adequate consideration and form a material part of the overall relationship
between TDI and Covenantor. TDI shall have the option to reduce the scope and
extent of the covenants by notice to Covenantor either before or after any
adjudication of the legality of the covenants, whereupon the covenants, as so
reduced, shall be binding and enforceable against Covenantor. TDI and Covenantor
hereby further expressly agree that any court of competent jurisdiction shall
have full power and authority to reduce the scope or extent of any covenant to
the extent necessary to render the same enforceable and to enforce the covenant
as reduced against Covenantor.
5. No Constraints. Covenantor represents and warrants that he is not subject to,
and will not enter into, any agreement or other matter which would or may
interfere with or prohibit the
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full and timely performance by Covenantor of his obligations and duties to TDI.
6. Enforcement. Covenantor recognizes and agrees that in the event of any breach
of this Agreement, TDI's remedy at law would necessarily be inadequate and
Covenantor agrees in the event of any such breach to the entry of an immediate
court order temporarily and permanently prohibiting and enjoining such breach.
7. General. This Agreement shall be governed by the laws of the State of
Arizona. In the event any provision of this Agreement is declared void or
unenforceable, such provision shall be enforced to the maximum extent possible
and shall otherwise be severed from this Agreement, which Agreement shall
otherwise remain in full force and effect. In such event, the parties shall
promptly negotiate and enter into such substitute provisions as may be necessary
to most closely attain the original intent of the parties as expressed in this
Agreement. The provisions of this Agreement shall survive the termination of any
employment, shareholder or other relationship between Covenantor and TDI.
Executed ________________________
___________________________________
Covenantor
Tracer Design, Inc.
By:________________________________
Authorized Officer
Schedule to Exhibit 10(bb) - Form Proprietary Rights Agreement
List of Covenantors:
Xxxx X. Xxxxxx - February 19, 1992
Xxxxxx X. Xxxxxxxxxxx - February 19, 1992
Xxxxx X. Xxxxx - February 19, 1992
Xxxx Xxxxxxxx - December 30, 0000
Xxxx Xxxxxxx - June 28, 1996
Xxxxx Xxxx - June 13, 1997
Xxxxxx Xxxxxxx - May 9, 1997
