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EXHIBIT 10.10
FORM OF NON-DISCLOSURE & NONCOMPETITION AGREEMENT
Set forth below is the form of non-disclosure and non-competition
agreement entered into by and between TriVergent (f/k/a State Communications,
Inc.) and each of Charles S. Houser, Shaler P. Houser, Russell W. Powell, Clark
H. Mizell and Daniel E.H. Sterling. Except for the names of the employees
parties to the agreements, there are no differences between the agreements.
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This NON-DISCLOSURE AND NON-COMPETITION AGREEMENT (this "Agreement") is
made and entered into this 28th day of October, 1998, by and among STATE
COMMUNICATIONS, INC., a South Carolina corporation (the "Company"),
________________ (the "Founder"), RICHLAND VENTURES II, L.P., a Delaware limited
partnership, and First Union Capital Partners, INC., a Virginia corporation
(collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Company and the Purchasers have entered into that certain
Preferred Stock Purchase Agreement, dated the date hereof (the "Stock Purchase
Agreement"), whereby the Company has agreed to sell and the Purchasers have
agreed to purchase 4,166,668 shares of Series A Convertible Preferred Stock (the
"Preferred Stock");
WHEREAS, the Founder is a significant shareholder of the Company and,
as such, will materially benefits from the transactions contemplated by the
Stock Purchase Agreement; and
WHEREAS, given the material adverse affect to the value of the
Preferred Stock if the Founder were to compete with the Company, to induce the
Purchasers to enter into the Stock Purchase Agreement and consummate the
transactions contemplated thereby the parties hereto have agreed to enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, the parties agree as follows:
1. Term. Founder covenants and agrees that for so long as the Founder
is employed by the Company and a period of two (2) years thereafter, he will
not, directly or indirectly, engage in any activity prohibited pursuant to the
terms of this Agreement.
2. Non-Competition and Non-Disclosure.
(a) Non-Competition. Founder agrees that for the term of this
Agreement, he will not, without the prior written consent of Purchasers',
directly or indirectly, (i) own, manage, operate, control or participate in, or
be associated with as a director, officer, shareholder, partner, joint
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venturer, employee, consultant or otherwise, any business providing
telecommunications services including, but not limited to, local exchange or
long distance telecommunications services which competes, directly or
indirectly, with the Company within any metropolitan statistical service area in
which the Company provides such services on the date of termination of Founder's
employment (the "Prohibited Business"); (ii) become financially interested in
any person or entity engaged in any such Prohibited Business, other than as a
passive investor owning, directly or indirectly, not more than 5% of the equity
securities of a public corporation; (iii) solicit or attempt to solicit any
employee of the Company either to work for the Founder personally or on behalf
of any other person or entity whether or not engaged in a Prohibited Business;
or (iv) solicit or attempt to solicit, for the purpose of providing the services
identified in subpart (i) above, any customer of the Company with which the
Founder had material contact during the twelve-month period immediately prior to
the Founder's departure from the Company. Founder's present activities with, and
ownership interest in, Rhinos International, Ltd. and N Plus 1 Software
Development Corporation shall not be deemed to be in violation of this
Agreement.
(b) Non-Disclosure of Confidential Information. As used in this
Agreement, the term "Confidential Information" shall mean any information which
(i) is not generally available to the public; and (ii) pertains to or relates in
any way to the Company or its businesses, proprietary techniques, know-how,
independent interpretations of market information, strategic plans and
organizational approaches, activities, products or services including, without
limitation, financial information, analyses, intellectual property rights,
employee compensation information, reports, pricing methods or other trade
secrets. Founder acknowledges that he may come into possession of certain
Confidential Information of the Company, the Purchasers or their respective
affiliates, and agrees that all such Confidential Information is the sole and
exclusive property of the Company or the Purchasers, as the case may be. During
the term of this Agreement, Founder shall not disclose any such Confidential
Information, directly or indirectly, nor use it in any way, either during the
term of this Agreement or at any time thereafter, except as required by law or
by any court or governmental agency or body. All files, records, documents,
pricing and other information, data and similar items in any medium whatsoever
relating to the business, assets or prospects of the Company, the Purchasers or
their respective affiliates, whether prepared by Founder or otherwise coming
into his possession, shall remain the exclusive property of the Company and
shall not be copied or removed from the premises of the Company without the
prior written consent of Purchasers. The terms of this subparagraph (b) are not
intended to limit any definitions, protections or remedies available to the
Company or the Purchasers under any local, state or federal law applicable to
trade secrets or confidential information.
(c) Remedies. Founder acknowledges that any violation of this Agreement
will cause irreparable harm to the Company and Purchasers and that damages are
not an adequate remedy. Founder therefore agrees that the Company and Purchasers
shall be entitled to injunctive relief enjoining, prohibiting and restraining
Founder from the continuance of any such violation, in addition to any monetary
damages which might occur by reason of a violation of this Agreement or any
other remedies at law or in equity, including, without limitation, specific
performance.
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(d) Independent Covenants. The covenants set forth in this Agreement
are and shall be deemed and construed as separate and independent covenants.
Should any part or provision of such covenants be held invalid, void or
unenforceable by any court of competent jurisdiction, such invalidity or
unenforceability shall not render invalid, void or unenforceable any other part
or provision thereof. Specifically, and without limiting the generality of the
foregoing, if any portion of this Agreement is found to be invalid by a court of
competent jurisdiction because its duration, the territory and/or the restricted
activities are invalid or unreasonable in scope, such duration, territory and/or
restricted activity, as the case may be, shall be redefined by consideration of
the reasonable concerns and needs of the Company and Purchasers' investment
interests such that the intent of Purchasers, in consummating the transactions
contemplated by the Agreement will not be impaired and shall be enforceable to
the fullest extent permissible under applicable laws.
3. Developments. (a) If at any time or times during the Founder's
employment, he shall (either alone or with others) make, conceive, create,
discover or reduce to practice any invention, modification, discovery, design,
development, improvement, process, software program, work of authorship,
documentation, formula, data, technique, know-how, secret or intellectual
property right whatsoever or any interest therein (whether or not patentable or
registrable under copyright, trademark or similar statutes or subject to
analogous protection) (the "Developments") that (i) relates to the business of
the Company or any customer of or supplier to the Company or any of the products
or services being developed or sold by the Company or which may be used in
relation therewith, (ii) results from responsibilities undertaken by the Founder
on behalf of the Company, or (iii) results from the use of premises or personal
property (whether tangible or intangible) owned, leased or contracted for by the
Company, such Developments and the benefits thereof are and shall immediately
become the sole and absolute property of the Company and its assigns, and the
Founder shall promptly disclose to the Company (or any persons designated by it)
each such Development and, as may be necessary to ensure the Company's ownership
of such Developments, Founder hereby assigns any rights including, but not
limited to, any copyrights and trademarks) he may have or acquire in the
Developments and benefits and/or rights resulting therefrom to the Company and
its assigns without further compensation and shall communicate, without cost or
delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to the Company.
(b) Upon disclosure of each Development to the Company, the Founder
agrees to, during his employment and at any time thereafter, at the request and
cost of the Company, sign, execute, make and do all such deeds, documents, acts
and things as the Company and its duly authorized agents may reasonably require:
(i) to apply for, obtain, register and vest in the name of
the Company alone (unless the Company otherwise directs)
letters patent, copyrights, trademarks or other
analogous protection in any country throughout the world
and when so obtained or vested to renew and restore the
same; and
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(ii) to defend any opposition or other administrative
proceedings in respect of such applications and any
opposition proceedings or petitions or applications for
cancellation or revocation of such letters patent,
copyright or other analogous protection.
(c) In the event the Company is unable, after reasonable effort, to
secure Founder's signature on any letters patent, copyright or trademark
registration applications or other documents regarding any legal protection
relating to a Development, whether because of Founder's physical or mental
incapacity or for any other reason whatsoever, Founder hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as his agent and attorney-in-fact, to act for and in his behalf and stead to
execute and file any such application or applications or other documents and to
do all other lawfully permitted acts to further the prosecution and issuance of
letters patent, copyright or trademark registrations or other legal protection
thereof with the same legal force and effect as if executed by the Founder.
4. Assignment. The rights and obligations of Founder under this
Agreement are personal and are not assignable.
5. Notices. All notices, demands or other communications required to be
or otherwise given or made hereunder shall be in writing and shall be deemed
given if delivered personally or received by facsimile transmission, or mailed
by overnight delivery service or by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to Founder: ____________________________
State Communications, Inc.
200 North Main Street
Suite 303
Greenville, South Carolina 29601
With a copy to: Hamilton Russell III, Esq.
200 North Main Street
Suite 303
Greenville, South Carolina 29601
If to the Purchasers: Mr. John Chadwick
Richland Ventures
200 31st Avenue North
Suite 200
Nashville, Tennessee 37203
With a copy to: R. Gregory Brophy, Esq.
Alston & Bird LLP
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One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
All such notices shall be deemed given on the date personally delivered or
received.
6. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of South Carolina.
7. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid, but if any one
or more of the provisions contained in this Agreement shall be invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability or any such provisions in every other respect and of the
remaining provisions of this Agreement shall not be in any way impaired.
8. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter contained herein. This
Agreement supersedes all prior agreements between the parties with respect to
the subject matter hereof. This Agreement may not be amended or modified except
pursuant to a writing executed by all parties plus the holders of a majority of
the outstanding shares of Preferred Stock.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Non-Disclosure
and Non-Competition Agreement on the day and year first above written.
RICHLAND VENTURES II, L.P.
By: Richland Partners II, L.P., General Partner
By:
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General Partner
FIRST UNION CAPITAL PARTNERS, INC.
By:
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Title:
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STATE COMMUNICATIONS, INC.
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By:
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Title:
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FOUNDER:
(SEAL)
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