[E-XACT LOGO GRAPHIC]
CONFIDENTIALITY AGREEMENT
This Agreement is made as of December 10, 1999, between E-XACT
TRANSACTIONS LTD., a Delaware corporation (the "COMPANY"), and Ted Henderson
("EXECUTIVE").
WHEREAS, the success of the business of the Company is dependent on the
goodwill established by the Executive and the Company's directors, executive
officers and employees with the Company's customers and the public generally.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive hereby agree as follows:
1. CONFIDENTIAL INFORMATION.
(A) Executive acknowledges that the information, observations and data
obtained by him during the course of his/her employment with or engagement by
the Company concerning the technology, products, business and affairs of the
Company and its affiliates are the property of the Company, including
information concerning acquisition or alliance opportunities in or reasonably
related to the Company's business or industry of which Executive becomes aware
during the Term (as defined in that certain Employment Letter Agreement dated
September 16, 1999 between Executive and the Company). Therefore, Executive
agrees that he/she will not disclose to any unauthorized person or use for
his/her own account any of such information, observations or data without the
Board of Directors' prior written consent unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Executive's acts or omissions. Executive agrees
to deliver to the Company on the date of termination, or at any other time the
Company may request in writing, all memoranda, notes, plans, records, reports
and other documents (and copies thereof) relating to the business of the Company
and its affiliates (including, without limitation, all acquisition prospects,
lists and contact information) which he/she may then possess or have under
his/her control.
(B) Executive recognizes that the Company has received and in the
future will receive confidential and proprietary information from third parties
subject to a duty on the Company's part to maintain the confidentiality of such
information and, in some cases, to use it only for certain limited purposes.
Executive agrees that he owes the Company and such third parties, both during
the Term and thereafter, a duty to hold all such confidential or proprietary
information in the strictest confidence and not to, except as is consistent with
the Company's agreement with the third party, disclose it to any person, firm or
corporation or use it for the benefit of anyone other than the Company or such
third party, unless expressly authorized to act otherwise by the Board of
Directors.
2. NONCOMPETITION AND NONSOLICITATION.
(A) NONCOMPETITION. Executive acknowledges that in the course of
his/her employment with or engagement by the Company he/she has and will become
familiar with the Company's trade secrets and with other confidential
information concerning the Company and that his/her services will be of special,
unique and extraordinary value to the Company. Therefore, Executive agrees that,
during the Term and during the 12-month period following Executive's resignation
or a termination by the Company for Cause (as defined in the Employment Letter
Agreement), he/she shall not directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any manner engage in
any business competing with the businesses of the Company or its Subsidiaries or
any businesses in which the Company or any of its Subsidiaries has entertained
discussions or has requested and received confidential information relating to
the acquisition of or alliance with such business by the Company or its
Subsidiaries.
(B) NONSOLICITATION. During the Term and during the 1 year following
termination, Executive shall not directly or indirectly through another entity:
(1) induce or attempt to induce any employee of the Company or any Subsidiary to
leave the employ of the Company or such Subsidiary, or in any way interfere with
the relationship between the Company or any Subsidiary and any employee thereof
or (2) induce or attempt to induce any customer, supplier, licensee or other
business relation of the Company or any Subsidiary to cease doing business with,
or modify its business relationship with, the Company or such Subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any Subsidiary.
(C) ENFORCEMENT. If, at the time of enforcement of Section 1 or 2 of
this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law.
3. OWNERSHIP. All work product done as an employee of the Company (the
"Work Product") shall be considered work(s) made by Executive for hire for the
Company and all worldwide right, title and interest in and to the Work Product,
including all patents, trade secrets, trademarks, copyrights, improvements on
same and other related rights (collectively, the "Proprietary Rights") shall
belong exclusively to the Company and its designees. If by operation or law or
for any other reason any of the Work Product, including all Proprietary Rights,
is not owned in its entirety by the Company automatically upon creation thereof,
then Executive agrees to assign, and hereby assigns, to the Company and its
designees all ownership rights in such Work Product, including all related
intellectual property rights. Executive shall supply, and will ensure that its
associates and agents shall supply, all assistance reasonably requested in
securing for the Company's benefit any Proprietary Rights, and will provide full
information regarding any such item and execute all appropriate documentation
prepared by the Company in applying for or otherwise registering, in the
Company's name, all rights to any such item. Executive does not have and shall
not be deemed to have any right, title, or intent in the Work Product or related
material, whether under trade secrecy, copyright, trademark, patent or related
laws.
4. DEFINITIONS.
"BOARD OF DIRECTORS" or "BOARD" shall mean the board of directors of
the Company.
"SUBSIDIARY" means any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
-2-
5. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class United States
mail (postage prepaid) or sent by reputable overnight courier service (charges
prepaid) or by facsimile to the recipient at the address below indicated:
IF TO THE COMPANY:
E-xact Transactions Ltd.
1610 - 555 West Hastings Street
Vancouver, British Columbia
Canada V6H 4N6
Attention: Ted Henderson, President and Chief Executive
Officer
Tel. No.: (604) 691-1670
Fax No.: (604) 691-1678
IF TO THE EXECUTIVE:
Ted Henderson
-------------------------
-------------------------
Tel. No.: ---------------
Fax No.: ---------------
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
6. GENERAL PROVISIONS.
(a) NOT AN EMPLOYMENT CONTRACT. Executive agrees and understands that
nothing in this Agreement shall confer any right with respect to continuation of
employment by the Company, nor shall it interfere in any way with Executive's
right or the Company's right to terminate Executive's employment at any time,
with or without cause.
(b) SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) COMPLETE AGREEMENT. This Agreement embodies the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(d) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
-3-
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors and assigns; provided
that the rights and obligations of Executive under this Agreement shall not be
assignable.
(f) CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by and construed
in accordance with the internal laws of the State of Colorado, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Colorado or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Colorado.
(g) REMEDIES. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages and
costs (including attorney's fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
(h) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Executive.
(i) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's principal office is located, the time period shall
be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
(j) SEPARATION. This Agreement shall survive the termination of
Executive's employment with the Company and shall remain in full force and
effect after such termination
SIGNATURE PAGE FOLLOWS
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
E-XACT TRANSACTIONS LTD.
By:
---------------------------------------
Name:
Title:
EXECUTIVE
------------------------------------------
Name: Ted Henderson