Common use of Proprietary Information and Non Competition Clause in Contracts

Proprietary Information and Non Competition. Optionee acknowledges that the Corporation’s business success requires the protection of its trade secrets and proprietary or otherwise confidential information. Optionee hereby affirms and renews the obligation to protect the Corporation’s confidential information, as set forth and defined in the agreement between the Corporation and Optionee regarding protection of confidential information (which may be entitled “Employee Proprietary Information Agreement”). The Corporation hereby agrees to upon execution of this Agreement (and hereafter throughout Optionee’s employment) provide Optionee with confidential information and immediate vesting in 1% of the Option Shares subject to this Option (as indicated in the vesting schedule set forth in the Notice of Grant), and by signing this Agreement, Optionee acknowledges delivery and receipt of same. Optionee further acknowledges that in and as a result of his or her employment by Corporation, he or she will be making use of, acquiring, accessing, and/or adding to such confidential information. Optionee recognizes that access to and knowledge of this information is essential to the performance of Optionee’s duties hereunder. Optionee acknowledges and agrees that Corporation’s confidential information is a valuable, special, and unique asset of Corporation and such confidential information is extremely important in the software industry. Optionee acknowledges that the disclosure of any confidential information may cause imminent harm and substantial, irreparable injury, including loss of profit and other damages such as loss of goodwill and a decrease in market share which are difficult to calculate. Optionee further acknowledges that Corporation retains a proprietary interest in its confidential information that persists beyond the termination of Optionee’s employment or this Agreement. Optionee further acknowledges that the preservation and protection of the confidential information is an essential part of Optionee’s employment by and business relationship with Corporation and that Optionee has a duty of fidelity and trust to Corporation in handling the confidential information. For good and valuable consideration (including the Corporation’s agreement to provide Optionee with confidential information and the immediate vesting of 1% of the Option Shares subject to this Option), it is agreed as follows: (a) Optionee acknowledges that the confidential information which the Corporation is obligated to provide to him or her is special and unique, and that in exchange for Optionee’s agreement to be bound by the provisions of this Paragraph, Optionee is receiving access to the confidential information and the immediate vesting of 1% of the Option Shares subject to this Option. Optionee further acknowledges that the restrictions contained in this Paragraph are specifically designed to enforce his or her agreement to never use or disclose the Corporation’s confidential information. Optionee further acknowledges that the restrictions in this Paragraph as to time, geographical area, and scope of activity to be restrained are reasonable, and do not impose a greater restraint than necessary to protect the Corporation’s confidential information, goodwill, and other legitimate business interests. Accordingly, Optionee agrees that during the term of his or her employment and for a period of twelve (12) months from the date his or her employment with the Corporation terminates, for whatever reason: (i) Optionee shall not provide any services (whether as an employee, agent, consultant, advisor, or independent contractor or in any other capacity, directly or indirectly) to any competitor in a position that has substantially the same functions and/or responsibilities as the position occupied by the Optionee at the time of Optionee’s cessation of service. Nor shall Optionee provide any services (whether as an employee, agent, consultant, advisor, or independent contractor or in any other capacity, directly or indirectly) to any competitor in a capacity in which Optionee would be in a position to use or disclose the Corporation’s confidential information (whether for the benefit of the Optionee or the competitor, or to the detriment of the Corporation). For the purposes of this covenant a competitor shall mean any corporation, partnership, or other entity that (i) is doing business in the geographic region in which Optionee was employed by the Corporation and (ii) is engaged in a business or has one or more product lines competitive with the Corporation. (ii) Optionee shall not request, advise or suggest to any customer of the Corporation, nor shall Optionee directly or indirectly assist any other person or entity to request, advise, or suggest to any customer of the Corporation, that the Customer curtail, cancel or withdraw its business from the Corporation or that the Customer not expand its relationship with the Corporation. (iii) Optionee shall not directly or indirectly solicit or accept the business of any customer or prospect of the Corporation with whom Optionee (i) had contact during the Optionee’s last twelve (12) months of employment with the Corporation, or (ii) had access to the Corporation’s confidential information with respect to the customer or prospect during the last twelve (12) months of employment with the Corporation. (iv) Optionee shall not induce or solicit any employee of the Corporation to leave the employ of the Corporation. (b) If any restriction set forth in this Paragraph is held by any court of competent jurisdiction to be unenforceable, then Optionee agrees, and hereby submits, to the reduction and limitation of such restriction to such geographic area, range of activities or period as may be enforceable. (c) Optionee acknowledges that because he or she will have knowledge of and exposure to Corporation’s confidential information, the Corporation has the right to enforce this Agreement, and any of its provisions, by injunction, specific performance or other equitable relief, without bond, and without prejudice to any other rights or remedies the Corporation may have for breach of this Agreement. Optionee agrees that injunctive relief is appropriate to enforce this Paragraph of this Agreement, and expressly consents to the entry of such relief.