Exhibit 99.4
Employee Confidentiality,
Nondisclosure,
Intellectual Property,
Nonsolicitation, and Noncompetition Agreement
Employee
: Mary
Beth Loesch
Effective Date
: November 2,
2004
In consideration of the mutual
promises expressed herein, the undersigned individual
(“Employee”) and Activant Solutions Inc.
(“ACTIVANT”) have agreed to the following, effective as
of the Effective Date set forth above:
| 1. |
ACTIVANT hereby agrees to provide to Employee in connection
with his or her employment confidential and proprietary information
and materials of ACTIVANT, its affiliates, its customers, its
suppliers, its strategic partners and other third parties who have
furnished such information and materials to ACTIVANT under
obligations of confidentiality. Such confidential and proprietary
information (hereinafter, “Confidential Information”),
whether or not in written form, includes, without limitation, any
and all: |
| |
a. |
technical information of ACTIVANT, its affiliates, its
customers, its suppliers, its strategic partners or other third
parties, such as but not limited to computer programs, software,
databases, methods, know-how, formulae, compositions, technological
data, technological prototypes, processes, discoveries, machines,
inventions, and similar items; |
| |
| |
b. |
business information of ACTIVANT, its affiliates, its
customers, its suppliers, its strategic partners or other third
parties, such as but not limited to compensation data, customer
lists, customer preferences, financial information, credit
information, pricing information, and similar items; |
| |
| |
c. |
information relating to future plans of ACTIVANT, its
affiliates, its customers, its suppliers, its strategic partners or
other third parties, such as but not limited to marketing
strategies, new product research, pending projects and proposals,
proprietary production processes, research and development
strategies, and similar items; |
| |
| |
d. |
information relating to employees and independent contractors
of ACTIVANT, its affiliates, its customers, its suppliers, its
strategic partners, or other third parties, such as but not limited
to salaries, benefits, incentive plans, positions, duties, and
similar items; and |
| |
| |
e. |
other valuable, confidential information, trade secrets, patent
applications, and related filings of ACTIVANT, its affiliates, its
customers, its suppliers, its strategic partners, or other third
parties which in many instances may not be identified as
confidential or proprietary. |
|
|
|
| Confidentiality, Nondisclosure ,
Intellectual |
|
|
| Property, Nonsolicitation, and
Noncompetition Agreement |
|
Page 1 |
| 2. |
Employee understands and agrees that all Confidential
Information is subject to this Agreement whether provided directly
to Employee or not, whether provided to the Employee prior to the
Effective Date of this Agreement or not, whether Employee is given
access to the Confidential Information or not, or whether
inadvertently disclosed to Employee or not. Employee agrees that he
or she will not disclose to ACTIVANT, or induce ACTIVANT to use, or
otherwise bring onto ACTIVANT’s premises, any confidential or
proprietary information or material belonging to any previous
employer or other person or entity. |
| |
| 3. |
Employee understands and agrees that all Confidential
Information, and every portion thereof, however stored, compiled,
or collected, and whether in tangible or intangible form,
constitutes the valuable intellectual property and intangible
assets of ACTIVANT and/or such third parties. |
| |
| 4. |
Employee understands and acknowledges the importance of
maintaining the security and confidentiality of the Confidential
Information. |
| |
| 5. |
Employee agrees to forever keep the Confidential Information,
and all documentation and information relating thereto, strictly
confidential. Specifically, Employee agrees that, except as
expressly authorized in writing by ACTIVANT or as may be otherwise
required by law or court order, Employee will: |
| |
a. |
not disclose Confidential Information to any third party; |
| |
| |
b. |
not use Confidential Information for the benefit of anyone
other than ACTIVANT; |
| |
| |
c. |
not copy Confidential Information for any reason; |
| |
| |
d. |
not remove Confidential Information from ACTIVANT’s
premises; |
| |
| |
e. |
return to ACTIVANT Confidential Information in Employee’s
possession upon completion of any work for ACTIVANT requiring
Employee to have access to such Confidential Information; and |
| |
| |
f. |
return to ACTIVANT all Confidential Information upon the
earlier of Employee’s separation from employment for whatever
reason or at the request of Employee’s supervisor (or
authorized ACTIVANT manager) before separation of employment. |
| 6. |
Employee promises not to compete unfairly with ACTIVANT, as
proscribed in this Section. |
| |
a. |
In consideration of ACTIVANT’s promise to provide
Confidential Information to Employee, and so as to enforce
Employee’s agreement regarding such Confidential Information
contained in Section 5 above, Employee agrees that he or she
will not, directly or indirectly, without ACTIVANT’s prior
written consent: |
|
|
|
| Confidentiality, Nondisclosure ,
Intellectual |
|
|
| Property, Nonsolicitation, and
Noncompetition Agreement |
|
Page 2 |
| |
(i) |
during employment and for a period of nine(9) months after the
date of termination of Employee’s employment for any reason,
solicit for consulting services or other services similar to or
competitive with those provided or offered by ACTIVANT and its
affiliates those customers, suppliers, and strategic partners of
ACTIVANT with whom Employee had contact or was otherwise involved
during the previous one (1) year period or the one
(1) year period immediately preceding the termination of
Employee’s employment, whichever is longer; |
| |
| |
(ii) |
during employment and for a period of nine (9) months from
the date of termination of Employee’s employment for any
reason, provide services (including consulting services) which are
similar to or competitive with those provided or offered by
ACTIVANT and its affiliates to those customers, suppliers, and
strategic partners described in paragraph 6(a)(i); |
| |
| |
(iii) |
during employment and for a period of nine (9) months from
the date of termination of Employee’s employment for any
reason, solicit, or encourage any other entity to solicit, for
employment any other employee or independent contractor of ACTIVANT
or its affiliates; |
| |
| |
(iv) |
during employment and for a period of nine (9) months from
the date of termination of Employee’s employment for any
reason, own or otherwise have a financial interest in (whether, for
example, as an owner, partner, officer, director, employee,
consultant, lender, or 5% or greater shareholder) any business
worldwide engaged or planning to become engaged in the sale or
marketing of products and/or services, or programming or systems
integration relating thereto, or otherwise competitive with any
business conducted by ACTIVANT or its affiliates at any time prior
to the termination of Employee’s employment; |
| |
| |
(v) |
ever use Confidential Information to solicit any of
ACTIVANT’s former, current or prospective customers,
suppliers, or strategic partners (including, but not limited to,
those described in paragraph 6(a)(i)); |
| |
| |
(vi) |
ever use Confidential Information to solicit, or encourage any
other entity to solicit, for employment any other empl |
|
