This NonDisclosure Agreement NDA involves
Title: NON-DISCLOSURE, NON-COMPETITION, NON-SOLICITATION AND
Governing Law: Florida Date: 6/23/2009
NON-DISCLOSURE, NON-COMPETITION, NON-SOLICITATION AND
This Non-Disclosure, Non-Competition, Non-Solicitation and Invention Agreement ( "this Agreement" ) between Innovative Software Technologies, Inc., a Delaware corporation ( “Innovative” ), The Web Channel Network, Inc., a Florida corporation wholly-owned by Innovative ( “Web Channel” ), and Robert W. Singerman ( "Employee" ) is hereby entered into as of June 17, 2009. (Innovative and Web Channel are collectively and separately referred to herein as the “Company.” )
WHEREAS, as of the date of this Agreement, the Company and its Affiliates (as defined in Section 1(h) hereof) are engaged in the business of design, production, marketing, innovation, licensing, merchandising, strategic direction and on-going operations of internet protocol television channels commonly referred to as WEB Channels, and in the future they may engage in additional related and unrelated businesses (all such activities collectively being referred to herein as the "Business" );
WHEREAS, Employee will be employed by the Company, and the Company is and will be in a confidential relationship with Employee; and in the course of such employment with the Company, Employee will become familiar with and aware of information as to the Company’s products and technologies, specific manner of doing business, customers and suppliers, contracting activities, and future plans with respect thereto, all of which have been and will be established and maintained at great expense to the Company and its Affiliates; and virtually all of which constitute trade secrets and valuable goodwill of the Company;
WHEREAS, Employee recognizes that the Business of the Company and its Affiliates depends upon the use of certain confidential information, involving (a) trade secrets, and (b) other information that is (i) of any value or significance to the Company and its Affiliates, and (ii) not generally known to competitors of the Company nor intended by the Company for general dissemination, including (but not limited to) any and all proprietary and technical information of the Company involving its business operations, products, services, equipment, inventions, referral sources, techniques and methods, know-how, operating systems, associated procedures and systems, formulae, technology, designs, drawings, engineering, computer software, source codes, object codes, accounting and financial data, lists of and data concerning current and potential vendors, suppliers and customers, pricing and discounting practices, market data, marketing and distribution methods and arrangements, marketing materials, sales, costs, quality controls, risk management, insurance, finances, capital structure, financial models, projections, billings, profits, losses, business organization, contracts, agreements, plans, sources of supply, special programs relating to sales, project files, prospect reports, service, training, and information about the Company itself and its respective executives, managers, officers, directors, employees, sales representatives, and offers to sell the Company or its assets or to purchase or otherwise acquire other business entities or their assets, and all related negotiations (collectively, "Confidential Information" ) made available to Employee and that the protection of the Confidential Information is of critical importance to the Company and its Affiliates;
WHEREAS, Employee has agreed to keep in confidence and not use the Confidential Information for Employee’s commercial benefit, and recognizes that the Company will sustain great loss and damage if Employee should violate the provisions of this Agreement and that monetary damages for such losses would be extremely difficult to measure;
WHEREAS, any obligation of Employee, as set forth in the preceding paragraphs, shall apply to Confidential Information disclosed in writing and designated or obviously recognizable as being confidential, or if disclosed orally, any such information that may be promptly reduced to writing; and
WHEREAS, Employee recognizes that the training of Employee by the Company, Employee’s access to Confidential Information, and other investments by the Company in the development of Employee may be made by the Company in preparation for a sale of substantially all of the assets of the Company or some other transfer of the Company itself to an acquiring entity;
NOW, THEREFORE, in consideration of Employee's employment and continued employment with the Company, the aforesaid recitals which are incorporated in and are a part of this Agreement, and the mutual promises, terms, covenants and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Employee hereby agree as follows:
1. Non-Competition and Non-Solicitation .
(a) Employee agrees that he or she shall not, during the term of Employee’s employment with the Company and for a period of one (1) year following termination of such employment (the “Noncompete Period” ), alone or by combining or conspiring with others or in any other manner whatsoever, within the counties and other geographic areas of every state and territory of the United States in which the Company has or had customers or any business premises, or otherwise operated the Business:
(i) directly or indirectly (as defined in Section 1(i) on page 4 below), run, own, manage, operate, control, be employed by, provide consulting services to, be a manager of, participate in, lend Employee’s name to, invest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity that (x) competes with the Business or any part thereof as conducted by the Company, any Affiliate of the Company, or any purchaser of substantially all of the assets of the Company in order to carry on the Business (an “Acquiror”) during the term hereof or at any time after the date hereof or (y) in any way provides or may provide services similar to those provided by the Company or any of its Affiliates or an Acquiror that constitute, relate to, or concern the Business (however, Employee shall not be considered to be in default of this Section 1 solely by virtue of Employee’s holding for portfolio purposes, as a passive investor, not more than one percent (1%) of the issued and outstanding equity securities of a corporation, the equity securities of which are listed or quoted on a national stock exchange or a national over-the-counter market);
(ii) directly or indirectly (as defined in Section 1(i) on page 4 below), without the prior written consent of the Company, solicit, recruit, offer employment, employ, engage as a consultant, lure or entice away or in any other manner persuade or attempt to persuade any person who is an employee or consultant of the Company or any of its Affiliates, to leave the employ of, or reduce Employee’s services to, the Company or any of its Affiliates or an Acquiror, unless such person has been terminated by the Company or any of its Affiliates;
(iii) contact any past, present or potential customer, vendor or contractor of the Company or any of its Affiliates or an Acquiror, for the purpose of (1) providing any service provided by the Company or any of its Affiliates or an Acquiror or (2) inducing or attempting to induce the entity to cease doing business with the Company or any of its Affiliates or an Acquiror, or reduce the amount of business previously done or contemplated to be done by the Company or any of its Affiliates or an Acquiror, for such entity;
(iv) contact any past, present or potential vendor, supplier, contractor or other provider to the Company or any of its Affiliates or an Acquiror, for the purpose of obtaining any services or commodities if the effect thereof could be expected to interfere with, disturb, interrupt or reduce the amount or level of such services or commodities available to the Company or any of its Affiliates or an Acquiror; or
(v) contact any prospective acquisition candidate, prospective Acquiror, or potential business partner of the Company or any of its Affiliates, on Employee’s own behalf or on behalf of any other person or entity, which acquisition candidate, prospective Acquiror, or potential business partner was either called upon by the Company or its Affiliates or for which Employee or the Company or its Affiliates made an acquisition analysis while Employee was employed by the Company.
(b) Employee recognizes and hereby acknowledges that Employee’s breach of any of the covenants contained in this Section 1 of this Agreement will cause irreparable harm and damage to the Company or its Affiliates or an Acquiror, the monetary amount of which may be virtually impossible to ascertain. As a result, Employee recognizes and hereby acknowledges that the Company and its Affiliates and an Acquiror shall be entitled to an injunction from any court of competent jurisdiction enjoining and restraining any violation of any or all of the covenants contained in this Section 1 of this Agreement by Employee or any of Employee’s Affiliates, partners or agents, either directly or indirectly, and that such right to injunction shall be cumulative and in addition to whatever other remedies the Company and its Affiliates and an Acquiror may possess at law or in equity (including, without limitation, damages at law). This Section 1, subsection (b) shall survive the termination of Employee’s employment or this Agreement for any reason. The provisions of this Agreement shall be enforceable in law and in equity notwithstanding the existence of any claim or cause of action by Employee against the Company or its Affiliates or an Acquiror, whether predicated on this Agreement or otherwise.
(c) The parties agree that the covenants contained in this Section 1 impose a reasonable restraint on Employee in light of the Business, and the activities and future plans of the Company and its Affiliates. Employee acknowledges that the restraints in such covenants are necessary to protect the legitimate business interests of the Company, including, but is not limited to, the extraordinary and specialized training Employee received while employed by the Company and Employee’s knowledge of (i) the Company’s trade secrets and valuable confidential business information that otherwise does not qualify as trade secrets, and (ii) the Company’s substantial relationships with specific prospective or existing customers, suppliers, or joint venturers.
(d) The covenants in this Section 1 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. In the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth in this Section 1 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such court deems reasonable, and the provisions of this Section 1 shall thereby be reformed by such court so as to rehabilitate the restrictions and the enforcement thereof to the extent permitted by law.
(e) Each of the covenants contained in this Section 1 shall be construed as a covenant independent of any other provision of this Agreement, and the existence of any claim or cause of action of Employee against the Company or any of its Affiliates or an Acquiror, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company or its Affiliates or an Acquiror of such covenants.
(f) The Noncompete Period shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this Section 1 and any time during which there is pending in any court of competent jurisdiction any action (including an appeal from any judgment) brought by any person, whether or not a party to this Agreement, in which action the Company or any of its Affiliates or an Acquiror seeks to enforce the covenants contained in this Section 1