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Exhibit 10.36
NONCOMPETITION AND PROPRIETARY INFORMATION AGREEMENT
THIS NONCOMPETITION AND PROPRIETARY INFORMATION AGREEMENT ("Noncompetition
Agreement") is entered into as of March ___, 1998, by and between
__________________________________, who resides at _____________________________
____________________ ("Employee") and DIDAX INC., a Delaware business
corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("DIDAX"), each a "party" and collectively the "parties."
This Noncompetition Agreement is entered into in connection with the Employment
Agreement executed by these same parties concurrently herewith. In consideration
for and as an essential condition of the employment and continuing employment of
Employee by DIDAX, Employee and DIDAX hereby agree as follows:
1. Noncompetition Covenant. Except with the prior written consent of the Board
of Directors of DIDAX (the "Board"), for a period of twelve (12) months after he
ceases to be employed by DIDAX (the "Termination Date"), Employee shall not,
alone, or as a member, employee or agent of any partnership, or as an officer,
agent, employee, director, stockholder, or investor of any other corporation,
directly or indirectly: (1.1) own, manage, operate, join, control or participate
in the ownership, management, operation, or control of, (1.2) become employed
by, consult or advise, or (1.3) be connected in any manner with any business or
activity which is competitive with the business of, or attempts to solicit
business or customers from, DIDAX as conducted on the Termination Date.
2. Information Disclosed Remains Property of DIDAX. All ideas, concepts,
information, and written material disclosed by DIDAX to Employee, or acquired
from a customer or prospective customer of DIDAX, are and shall remain, during
employment with DIDAX and subsequent to the Termination Date, the sole and
exclusive property and proprietary information of DIDAX or such customers, and
are disclosed in confidence by DIDAX or permitted to be acquired from such
customers in reliance on Employee's agreement to maintain them in confidence and
not to use or disclose them to any other person except in furtherance of DIDAX's
business.
3. Confidential Information. Employee agrees to hold as DIDAX's property all
trade secrets, processes, proprietary information, know-how, memoranda, books,
papers, letters, customer lists, processes, computer software, records,
financial information, policy and procedure manuals, training and recruiting
procedures, and other data, and all copies thereof and therefrom, in any way
relating to DIDAX's business and affairs, whether made by him or otherwise
coming into his possession ("Confidential Information") and on termination of
his employment, or demand of DIDAX at any time, to deliver to DIDAX all tangible
copies of Confidential Information. Employee recognizes and acknowledges that
DIDAX's Confidential Information are valuable, special, and unique assets of
DIDAX's business, access to and knowledge of which are essential to the
performance of the Employee's duties under the Employment Agreement with DIDAX.
Employee will not, during or after the term of his employment by DIDAX, in whole
or in part, disclose such Confidential Information to any person or entity for
any reason or purpose whatsoever, nor shall Employee make use of any such
Confidential Information for his own purposes or for the benefit of any person
or entity (except DIDAX) under any circumstances during or after the term of his
employment, provided that after the term of his employment these restrictions
shall not apply to such Confidential Information that are then in the public
domain (provided that Employee was not directly responsible for such
Confidential Information entering the public domain without DIDAX's consent).
Employee shall have no obligation hereunder to keep confidential any
Confidential Information if and to the extent disclosure thereof is specifically
required by law; provided, however, that in the event disclosure is required by
applicable law, Employee shall provide DIDAX with prompt notice of such
requirement, prior to making any disclosure, so that DIDAX may seek an
appropriate protective order. Employee shall use his best efforts to cause all
persons or entities to whom any Confidential Information shall be disclosed by
him hereunder to observe the terms and conditions set forth herein as through
each such person or entity were bound hereby. Employee further agrees that
during the term of his employment
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with DIDAX, he will not use or disclose to other employees of DIDAX confidential
information belonging to his former employers.
4. Ownership of Intellectual Property. Any and all inventions, discoveries,
improvements, processes, apparatus, methods, designs, records, files, drawings,
documents, equipment, or other scientific, literary or artistic creations
(collectively "Creations") that Employee has invented, discovered, conceived,
originated, or made, or may invent, discover, conceive, originate, or make, by
himself or in conjunction with any other person or entity, during the period of
his employment by DIDAX in any way, directly or indirectly, connected with
DIDAX's business shall be the sole and exclusive property of DIDAX. Employee
agrees that all copyrightable works created by Employee or under DIDAX's
direction in connection with DIDAX's business are "works made for hire" and
shall be the sole and complete property of DIDAX, and that any and all
copyrights to such works belong to DIDAX. To the extent such works are not
deemed to be "works made for hire," Employee hereby assigns all proprietary
rights, including copyright, in these works to DIDAX without further
compensation. Employee agrees to disclose to DIDAX every patent application,
notice of copyright, or other action taken by Employee or any assignee or
affiliate to protect intellectual property during the twelve (12) months
following termination of Employee's employment with DIDAX, for whatever reason,
so that DIDAX may determine whether to assert a claim under this section or any
other provisions of this Noncompetition Agreement or the related Employment
Agreement.
5. Severability; No Waiver. Should any provision or clause of this
Noncompetition Agreement be held to be void, invalid, or unenforceable, the
remaining provisions of this Noncompetition Agreement shall not be affected and
shall continue in effect and the invalid provision shall be deemed modified to
the least degree necessary to remedy such invalidity. If any tribunal of
competent jurisdiction construes any provision or clause of this Noncompetition
Agreement, or any portion thereof, to be illegal, void, or unenforceable because
of the duration of such provision or the area or matter covered thereby, such
tribunal shall reduce the duration, area, or matter of such provision, and, in
its reduced form, such provision shall then be enforceable and shall be
enforced. The failure of either party to partially or fully exercise any right
or the waiver by either party of any breach, shall not prevent a subsequent
exercise of such right or be deemed a waiver of any subsequent breach of the
same or any other term of this Noncompetition Agreement.
6. Assignment. This Noncompetition Agreement and the rights and obligations of
the parties shall bind and inure to the benefit of each of the parties hereto
and shall also bind and inure to the benefit of any successor or successors of
DIDAX, but, except as to any such successor of DIDAX, neither this
Noncompetition Agreement nor any rights or benefits hereunder may be assigned by
either party without the prior written consent of the other party.
7. Notice. Any notice required or permitted to be given hereunder shall be
effective when received and shall be sufficient if in writing and if personally
delivered or sent by prepaid express delivery service, to the party to receive
such notice at its address set forth at the beginning of this Noncompetition
Agreement or at such other address as a party may be notice specify to the
other.
8. No Conflicting Obligations. Each party represents and warrants that it is
under no obligation or restriction, nor will it assume any such obligation or
restriction, that does or would in any way violate, interfere, or conflict with
the performance to be rendered under this Noncompetition Agreement.
9. Agreement Read, Understood, and Fair. Employee has carefully read and
considered all provisions of this Noncompetition Agreement and agrees that all
of the restrictions set forth are fair and reasonable and are reasonably
required for the protection of the Interests of DIDAX.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Noncompetition
Agreement as of the date first written above.
DIDAX INC.
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▇▇. ▇▇▇▇▇ ▇. Buick
("Employee") Chairman of the Board
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