Confidentiality & Restrictive Covenant Agreement

Confidentiality and Restrictive Covenant Agreement

InContext Solutions, Inc. and its affiliates subsidiaries, successors and assigns (the "Company") and the individual signing below ("Employee"), enter into this Confidentiality and Restrictive Covenant Agreement ("Agreement") in consideration of, and as a condition of, Employee's at-will employment or continued at-will employment with the Company, the compensation and other benefits Employee receives from the Company, and for the other consideration described below. Acknowledging the receipt and adequacy of this consideration, and intending to be legally bound, Employee agrees as follows:

1. Background

The Company is or will become engaged in the business of developing, marketing and selling computerized retail and consumer research and computer software and services to customers worldwide and has requested that Employee assist the Company and its shareholders in such business. The Company owns, controls and has exclusive access to Confidential Information (as defined below). To assist Employee in the performance of his/her job duties and other job duties, the Company agrees to provide and shall provide Confidential Information and materials to Employee solely as a result of his/her signing this Agreement, with such Confidential Information being in addition to any such information Employee received prior to signing this Agreement.

2. Definition of "Confidential Information"

For purposes of this Agreement, the term "Confidential Information" shall mean information of the Company which is substantially inaccessible and/or not generally known by third parties, including but not limited to, the following types of information and information of a similar nature, whether tangible or intangible, whether memorized, and whether or not reduced to writing or memorialized in any manner, in hard copy, electronic, or other form: information that is marked "confidential," "restricted," or "for internal use only"; unreleased product and marketing information; discoveries; ideas; concepts; software programs in various stages of development; prototypes; designs; drawings; patterns; plans; procedures; specifications; techniques; models; data; macros; source code; object code; diagrams; forecasts; flow charts; research and development methodologies, processes and procedures; "know-how" and inventions; applied theories and ideas; management information systems; operations methodologies; policies and procedures; advertising information and concepts; marketing techniques and materials; marketing and development plans; customer names and other information related to customers; price lists; pricing policies; identity of and information relating to vendors, suppliers, developers, manufacturers, licensors and distributors; and sales, financial and personnel information. Confidential Information includes any non-public information which the Company obtains from its customers, potential customers or other persons in the course of the Company's business. Confidential Information also includes any written or recorded summary or analysis of Confidential Information prepared by the Employee.

The term "Confidential Information" also includes the Company's trade secrets as that term is defined by applicable state law that protects employer trade secrets and includes, but is not limited to, intellectual property, and any and all other materials, documents and information, regardless of form and regardless of whether such is marked with the words "confidential", "proprietary", "trade secret" or a similar legend, (a) from which the Company derives independent economic value, actual or potential, due to the fact that such information (i) is not generally known to other persons who can obtain economic value from its disclosure or use, or (ii) if generally known, is used, implemented, selected, arranged, assembled, grouped together, or otherwise exploited by the Company in such a way that is not generally known to other persons who can obtain economic value from its disclosure or use, and (b) of which the Company exercises reasonable efforts under the circumstances to maintain its secrecy or confidentiality.

Confidential Information shall not include any information that: (a) is already in the public domain or becomes available to the public through no breach by Employee of this Agreement; (b) was lawfully in Employee's possession prior to disclosure to Employee in relation to his/her employment with the Company; (c) is lawfully disclosed to Employee by a third party without any obligations of confidentiality attaching to such disclosure; (d) the Company regularly gives to third parties without restriction on use or disclosure.

3. Employee Acknowledgements

Employee acknowledges that:

A. The Company's Confidential Information is a valuable asset of the Company and would not have been disclosed to Employee but for Employee's agreement to render services to the Company and abide by the obligations outlined in this Agreement.

B. The Confidential Information is, will be and shall, at all times, remain the sole and exclusive property of the Company.

C. In order to protect the Company's business, competitive position and goodwill, Employee must maintain and preserve the confidentiality of all of the Confidential Information and prevent dissemination of Confidential Information to the Company's competitors, the industry or industries in which the Company does business and the general public.

D. The Company has or may have an obligation to keep confidential such Confidential Information of its customers as is made available to the Company in the course of the Company's business and a failure to preserve the confidentiality of such customer Confidential Information may damage the Company's business relationship with its customers and may expose the Company to claims for monetary and other damages.

4. Employee's Undertakings

In exchange for the Company's agreement to provide the Employee with at-will employment or continued at-will employment, Confidential Information, and the other consideration outlined in this Agreement, Employee agrees that:

A. Covenant One: Non-Use and Non-Disclosure of Confidential Information. Employee shall use Employee's best efforts and utmost diligence to at all times, protect and guard the Company's Confidential Information which becomes known or available to Employee. Neither during such period as Employee shall be rendering services to the Company, whether as an employee, a member or otherwise, nor thereafter, will Employee, directly or indirectly, use, divulge or disclose to any person any Confidential Information (whether acquired, learned, obtained, or developed by Employee alone or in conjunction with others), nor cause or permit the exploitation, copying or summarizing of any Confidential Information, except as may be required in the course of Employee's employment with the Company or may be consented to in writing by the Company's Chief Executive Officer or Chief Operating Officer and Employee promises that he/she will not allow any unauthorized use or disclosure of Confidential Information. If Employee is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, Employee shall provide the Company's Chief Executive Officer or Chief Operating Officer with prompt prior written notice of such legal requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Covenant One. In any event, Employee may furnish only that portion of the Confidential Information which Employee is advised by legal counsel is required, and Employee shall exercise Employee's best efforts to obtain an order or assurance that confidential treatment will be accorded to such Confidential Information that is disclosed.

B. Covenant Two: Return of Confidential Information. Upon request of the Company made at any time, and upon Employee's separation from employment with the Company for any reason, Employee shall immediately deliver or cause to be delivered to the Company all Confidential Information in Employee's possession and/or control (including all reproductions thereof and all abstracts and compilations created therefrom) of any nature, whether in electronic form, hard copy, or otherwise, including all originals and copies thereof, and including all other materials furnished to or acquired by Employee as a result of his/her relationship with the Company. Employee agrees not to retain any Confidential Information following his/her separation from employment with the Company. In addition, Employee agrees not to recreate from memory, in whole or in part, in digital, electronic, or written form, the Company's Confidential Information.

C. Covenant Three: No Employee Solicitation. Employee agrees that, during the Restricted Period, Employee shall not, individually or jointly with others, directly or indirectly, or by assisting others, recruit, encourage, or attempt to recruit or encourage any employees of the Company or former employees (as defined below) of the Company with whom Employee worked, had business contact, or about whom Employee gained non-public or Confidential Information (hereinafter, "InContext's Employees" or "Former Employees"), nor shall Employee contact or communicate with InContext's Employees or Former Employees for the purpose of inducing, assisting, encouraging and/or facilitating InContext's Employees or Former Employees to terminate their employment with the Company or find employment or work with another person or entity that is in competition with the Company. For purposes of this Agreement, the "Restricted Period" is defined to mean during the Employee's employment with the Company and for twelve (12) months after termination (also referred to herein as "separation") of the Employee's employment with the Company for any reason whether voluntary or involuntary; "Former Employees" is defined to mean employees who are not employed by the Company at the time of such direct or indirect communication and/or solicitation, but were employed by, or working for the Company in the three (3) months prior to the time of such direct or indirect communication and/or solicitation. Notwithstanding the foregoing, this paragraph does not prohibit or limit the right of Employee to discuss, debate and communicate with other employees of the Company regarding Employee's workplace terms and conditions of employment, including wages.

D. Covenant Four: Non-Solicitation and Non-Interference with Business. Employee agrees that, during the Restricted Period, he/she shall not solicit, other than for the benefit of the Company as authorized by the Company, by mail, by email, by telephone, by personal meeting, or by any other means, either directly or indirectly, any customer to whom Employee provided services on behalf of the Company during the twelve (12) months immediately preceding Employee's separation from employment with the Company ("Restricted Customer"). This agreement to "not solicit" means that, during the Restricted Period, the Employee will not initiate any contact or engage in any communication, and will not cause another individual or entity to initiate contact or engage in communication, for the purposes of inviting, inducing, encouraging, requesting or attempting to influence or induce any Restricted Customer:

• (i) to transfer any business from the Company to the Employee or to the Employee's new employer or firm; or
• (ii) to open a new account with the Employee's new employer or firm for the provision of services or products competitive with the Company; or
• (iii) to otherwise discontinue, cancel, limit, reduce or postpone such Restricted Customer's patronage and/or business with the Company.

These restrictions apply regardless of geographic location, it being acknowledged by the Company and Employee that the Restricted Customers to whom Employee may provide services are not confined to a particular geographic area.

E. Covenant Five: Covenant Not to Compete. Employee agrees that while employed by the Company and for six (6) months after Employee's separation from the Company for any reason, he/she shall not be directly or indirectly involved in or associated with, as an owner, Employee, partner, director, officer, employee, agent or consultant, any parts of the business at Kantar Retail, Decision Insight, PRS IN VIVO, Symphony RetailAI, GfK NORM, inVRsion, Marxent Labs, Dassault Systemes and any of their subsidiaries or holding companies which competes directly with those parts of the business of the Company with which the Employee was involved to a material extent in the twelve (12) months preceding his/her separation from the Company. Company may in its sole discretion amend this Agreement with changes to the named businesses which competes with its business and any such changes made prior to Employee's separation from the Company shall apply to Employee's restrictions as defined in this Agreement.

F. Non-Disparagement. Employee agrees not to make any direct or indirect derogatory statements (whether written or oral) regarding, or to disparage, defame or criticize in any way, the business, practices, conduct or reputation of the Company, unless such statements are required by law and are truthful.

G. Covenants Reasonable and Necessary. Employee acknowledges and agrees that each of the above-referenced covenants contained in this paragraph 4 are reasonable as to geography, scope and duration, are necessary to protect the Company's legitimate business interests and are reasonable as to their effect on Employee and the public. Employee specifically agrees these covenants will not preclude Employee from becoming gainfully employed following his/her separation from employment with the Company. In the event that any of the restrictions and limitations contained in this paragraph 4 are deemed to be unreasonable or to otherwise exceed the time and/or geographic limitations permitted by applicable law, such provisions of this paragraph 4 shall be blue-penciled or reformed to the maximum time and/or geographic limitations permitted by applicable law.

H. Tolling. Employee agrees that his/her covenants contained in this paragraph 4 shall be extended for the period of time which Employee violates one or more of these covenants and/or during any period during which the Company appeals from an order refusing to enforce any of these covenants. The tolling or extension period shall not exceed twelve (12) months under any circumstances.

5. The Company's Ownership of Intellectual Property "Developments"

Employee recognizes and agrees that all ideas, inventions, improvements, designs, original works of authorship, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, computer software programs and databases, source code, and other developments or improvements and all other intellectual property and proprietary rights, whether or not protected or capable of protection under intellectual property or other laws, as well as all works based upon, derived from, reduced from, collecting, containing or making use of any of the foregoing or of any Confidential Information (the "Developments") created, made, conceived, implemented, first reduced to practice or completed by Employee, alone or with others, while he/she is employed by the Company, and: (i) results from work that Employee performed for the Company, whether or not in the normal course of Employee's employment or during normal working hours; (ii) reasonably relates to the actual or anticipated business, research or development of the Company, are within the scope of the Company's business operations or that relate to any of the Company's work or projects (including any and all Developments based wholly or in part upon ideas conceived while rendering services to the Company); or (iii) are developed with the use of Company resources, facilities and/or Confidential Information, are the sole and exclusive property of the Company. Employee agrees that he/she will promptly disclose in confidence to the Company all Developments, whether or not the Developments are patentable, copyrightable, or protectable as trade secrets, and hereby irrevocably and perpetually assigns to the Company all present and future rights, title and interest, including all intellectual property rights, he/she has or may have or acquire in and to the Developments, including those relating to patent, copyright, trademark or trade secrets and the right to secure registrations, renewals, reissues and extensions in the Developments. At the request of the Company, during Employee's employment or after, and without additional compensation, Employee will do all things deemed by the Company to be reasonably necessary to assist the Company to register, perfect, maintain and enforce the Company's rights in any Developments, including to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, pursuant to the Employee Patent Act, Illinois Public Act 83-493, the Company hereby notifies Employee that the provisions of this paragraph 5 shall not apply to any Developments for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on Employee's own time, unless (1) the Development relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Development results from any work performed by Employee for the Company.

6. No Property Rights

Employee agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information of the Company disclosed pursuant to this Agreement, or to any Development, invention or any patent, copyright, trademark, or other intellectual property right of the Company embodied by such Confidential Information.

A. Rights in Prior Developments and Inventions. Employee agrees that all Developments, if any, attached hereto as Exhibit 1, that were conceived in whole or in part by Employee prior to employment with the Company and to which Employee has any rights, title, or interest and which relate to the Company's proposed business, products, or research and development ("Prior Developments" and sometimes referred to as inventions); or, if no such list is attached, Employee represents and warrants that there are no such Prior Developments. Furthermore, Employee represents and warrants that if any Prior Developments are included on Exhibit 1, they will not materially affect Employee's ability to perform all obligations under this Agreement.

7. Business Solely for Benefit of the Company

Employee agrees that during his/her employment, he/she will not directly or indirectly perform work or services similar or related to the work associated with Employee's position at the Company, other than for the benefit of the Company. This restriction applies to work performed on Employee's own behalf and/or work performed on behalf of any entity other than the Company. Employee will use his/her best efforts to abide by his/her duty of loyalty and/or fiduciary duties to the Company. If Employee plans to perform any work or services outside of the Company, which is similar or related to the work associated with Employee's position at the Company, including but not limited to board and advisory positions, Employee shall immediately notify the Company's Chief Executive Officer or Chief Operating Officer and shall not begin any such work or engagement without prior written consent from the Company's Chief Executive Officer or Chief Operating Officer to do so.

8. Reproduction of Confidential Information

Confidential Information of the Company shall not be reproduced in any form except as required in the course of Employee's employment with the Company. Any reproduction of any Confidential Information shall remain the sole and exclusive property of the Company.

9. Reverse Engineering

Employee acknowledges that the Company's software programs contain valuable Confidential Information, and agrees that he/she will not modify, reverse engineer, decompile, create other works from or disassemble any of the Company's software programs unless permitted in writing by the Company's Chief Executive Officer or Chief Operating Officer.

10. Relief and Remedies

Either the Company or Employee may seek all available remedies at law or in equity for any breach, threatened breach, or attempted breach of this Agreement. Employee acknowledges and agrees that the breach or threatened breach of any of Employee's undertakings under this Agreement will result in irreparable injury to the Company for which monetary damages alone would not adequately compensate the Company and for which there is no adequate remedy at law. Employee consents to the issuance of a restraining order or injunction, and, if sought, a preliminary or temporary restraining order or injunction, with respect to any conduct or threatened conduct by Employee in violation of this Agreement. The rights and remedies of the Company pursuant to this paragraph are cumulative and are in addition to, and shall not be deemed to exclude, any other right or remedy which the Company may have, whether pursuant to this Agreement or otherwise, at law or in equity.

11. Expedited Discovery

Employee agrees that in any proceeding seeking injunctive relief under this Agreement, each party shall have the right to engage in limited, expedited discovery, including deposition and document discovery, for the purposes of obtaining or defending against a request for injunctive relief, and the Company shall have the right to conduct forensic examination(s) of electronic devices (including but not limited to computers, mobile phones, personal data assistants, CD-ROMs, DVDs, floppy disks, Zip drives, USB storage devices, flash drives and memory cards) in the Employee's possession or control, if the Company reasonably believes such devices contain Confidential Information. Employee further agrees that in connection with any application for injunctive relief in federal or state court, discovery shall be conducted on an expedited basis.

12. Defend Trade Secrets Act Immunity

Notwithstanding any provisions in this Agreement or Company policy applicable to the unauthorized use or disclosure of trade secrets, Employee is hereby notified that, pursuant to the Defend Trade Secrets Act as contained in 18 U.S.C. § 1833, Employee cannot be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law. Employee also may not be held so liable for such disclosures made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, individuals who file a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order provided the Employee's actions are consistent with 18 U.S.C. § 1833.

13. Computer Access

Any use of the Company's computers, email or Internet access ("Computers") that violates this Agreement or any other Company policy or law is not authorized and constitutes an access of the Computers that exceeds the Employee's authority. Any attempt to access the Computers after (1) the Employee has submitted his or her resignation of employment or (2) the Company has terminated his or her employment similarly is not authorized and the Company reserves its rights to address and remedy any such violation under the provisions of the Computer Fraud and Abuse Act.

14. Attorneys' Fees

If Employee breaches or defaults in the performance of any of Employee's undertakings under this Agreement, then, in addition to any and all of the rights and remedies which the Company may have against Employee, Employee will be liable to pay the Company's court costs and reasonable attorneys' fees incurred in enforcing Employee's undertakings hereunder.

15. Miscellaneous Clauses

A. Enforcement. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois and shall in all respects be interpreted, enforced, and governed under the laws of the State of Illinois without giving effect to principles of conflicts of law. Any disputes under this Agreement shall be brought exclusively in the State or Federal courts, as appropriate, located in Chicago, Illinois, and Employee hereby irrevocably consents to the personal jurisdiction and venue of these courts.

B. Severability. The Company and Employee agree that each provision and clause set forth in this Agreement constitutes a separate agreement independently supported by good and adequate consideration. If any provision or clause of this Agreement is held to be invalid, then such provision or clause shall be severed here from without affecting any other provision or clause of this Agreement. The Company and Employee further agree that if a court determines that the scope and/or operation of any provision or clause of this Agreement is too broad to be enforced as written, the Company and the Employee intend that the court should sever, blue-pencil, modify or reform such provision or clause to the greatest such narrower scope and/or operation as it determines to be enforceable. The Company and the Employee also agree that the remainder of this Agreement shall not be affected by any modification of or finding of unenforceability concerning a specific provision or clause of this Agreement.

C. No Prior Agreements. Employee represents that he/she is not a party to or otherwise subject to or bound by the terms of any contract, agreement, or understanding which in any manner would limit or otherwise affect his/her ability to perform his/her obligations under this Agreement.

D. Disclosure of this Agreement. Employee authorizes the Company to notify others, including the Company's customers and Employee's future employers and/or prospective employers, of the terms of this Agreement and the Employee's responsibilities hereunder.

E. Assignment. This Agreement is fully assignable by the Company in the event of a merger, acquisition, or other business combination involving the Company, but shall not be assignable by the Employee.

F. Waiver. A waiver or partial exercise of a right or privilege under this Agreement by the Company of a breach of any provision or clause of this Agreement shall not constitute a waiver by the Company with respect to any future breach of any provision or clause of this Agreement, nor shall the Company by any such waiver be prohibited from enforcing any and all rights and remedies provided by this Agreement.

G. Superseding Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements of the parties, whether oral or written, express or implied, and may not be modified in any way except by a signed writing which specifically refers to this Agreement and is signed by the Company's Chief Executive Officer or Chief Operating Officer. Notwithstanding the foregoing, to the extent that the Company has or in the future implements additional policies protecting Confidential Information, this Agreement is not intended to diminish Employee's obligations under such policies.

H. Headings/Titles. The headings and titles of the paragraphs of this Agreement are for convenience purposes only, and are not intended to define, limit or construe the contents of the various paragraphs.

I. Rights. Nothing in this Agreement shall be deemed to create any rights in favor of any person which is not a party hereto and no such person may assert that he/she is a beneficiary of any undertaking of any party to this Agreement.

J. Terms. The term "including" shall be construed to mean "including without limitation."

Revision History