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EXHIBIT 10.17
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
This Agreement is made this 18th day of April, 1994, between A.D.A.M.
Software, Inc., a Georgia corporation (the "Employer"), and Joseph R. Fuller,
(the "Employee").
WHEREAS, the Employee has or will obtain valuable experience and knowledge
with respect to the affairs of the Employer;
WHEREAS, the Employee realizes that the Employer has made a substantial
investment in time and money in developing business and customer relationships,
and that it is a legitimate business interest of the Employer to protect that
investment and to retain its contracts with the good will of its customers, and
the Employee further realizes that he is employed in a position of much trust
and responsibility by the Employer;
WHEREAS, the Employee is willing to agree to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the Employee's continued employment
with the Employer and pursuant to the terms and conditions hereinafter set
forth, and in further consideration of their mutual covenants herein contained,
the parties hereto agree as follows:
1. EMPLOYMENT AND DUTIES The Employer agrees to continue to employ the
Employee and the Employee accepts his continued employment as Product Marketing
Manager subject to the terms and conditions hereinafter set forth. The
Employee's duties shall be those currently being performed by him for the
Employer and any other related duties as may be determined and assigned to the
Employee from time to time hereafter by the Employer.
2. EXTENT OF SERVICES. The Employee shall devote his entire time,
attention and energies to the business of the Employer and shall not during his
employment be engaged in any other business activity, without the continuing
approval of his supervisors, whether or not such business activity is pursued
for gain, profit or other pecuniary advantage, but this shall not be construed
as preventing the Employee from investing his assets in such form or manner as
will not require any services on the part of the Employee in the operation of
the affairs of the companies in which such investments are made.
3. CONFIDENTIAL INFORMATION. Employee agrees not to divulge, disclose, or
communicate to any person, firm, or corporation at any time, during or after
employment, in any fashion, form or manner, either directly or indirectly, any
information of any kind, nature, or description concerning any matters
affecting or relating to the business of Employer or Employee's employment with
Employer which specifically includes
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any matter whatsoever concerning A.D.A.M. Software, Inc., its subsidiaries,
divisions or affiliated companies (collectively referred to hereafter as
"Confidential Information") . The parties agree that Confidential
Information includes, without limiting the generality of the foregoing, the
name of any customers of Employer, the prices it obtains or has obtained or at
which it sells or has sold its products or services, research, development,
inventing, accounting, computer hardware configuration, computer software,
source code, manufacturing, engineering, merchandising, equipment, or any other
information of, about, or concerning the business of Employer or the business
of customers of Employer, its manner of operation, its plans, processes, or
other data of any kind, nature, or description, without regard to whether any
or all of the foregoing matters would be deemed confidential, material, or
important. The parties agree that the above matters are important, material,
and confidential and gravely affect the effective and successful conduct of the
business of the Employer, and its goodwill, and that any breach of the terms
of this paragraph is a material breach hereof. This Agreement shall not be
deemed to prevent Employee from disclosing Confidential Information if all of
the following circumstances exist: (1) such disclosure is necessary to the
business of Employer and to the performance of the duties of Employee; (2) such
disclosure does not involve trade secrets or other theretofore undisclosed
matters; and (3) Employee makes such disclosure in circumstances and in a
manner reasonably calculated to benefit Employer and not Employee or actual or
potential competitors of Employer.
4. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of the Employee's
employment, all documents, art or office supplies, records, computer hard
drive, diskettes, or tape, notebooks and similar repositories of or containing
Confidential Information, including copies thereof, then in the Employee's
possession, whether prepared by him or others, will be left with the Employer.
In the event of a breach or threatened breach by the Employee of the provisions
of this Section 4, the Employer shall be entitled to an injunction restraining
the Employee from disclosing, in whole or in part, the Confidential
Information, or from rendering any services to any person, firm, corporation,
association or other entity to whom Confidential Information, in whole or in
part, has been disclosed or is threatened to be disclosed. Nothing herein
shall be construed as prohibiting the Employer from pursuing any other remedies
available to the Employer for such breach or threatened breach, including the
recovery of damages from the Employee.
5. PATENTS.
A. The Employee shall disclose fully to the Employer any and all
inventions which he shall conceive or make during his employment with
Employer and all inventions which he shall conceive or make during the
period of six (6)
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months after his last day of employment with Employer, which are in whole
or in part the result of his work with the Employer. Such disclosure is to
be made promptly after the conception of each invention, and the inventions
are to become and remain the property of the Employer, whether or not
patent applications are filed thereon. Upon request and at the expense of
the Employer, the Employee is to make application through the patent
solicitors of the Employer for letters patent of the United States and any
and all other countries at the discretion of the Employer on such
inventions and to assign all such applications to the Employer or its
designated representative, all without additional payment during his
employment by the Employer and for reasonable compensation for time
actually spent by the Employee at such work at the request of the
Employer after his employment. The Employee is to give the Employer, its
attorneys and solicitors, all reasonable assistance in preparing and
prosecuting such applications and, on request of the Employer, to execute
all papers and do all things that may be reasonably necessary to protect
the right of the Employer and vest in it or its assigns the inventions,
applications and letters patent herein contemplated.
B. With respect to inventions the concept, creation or development of
which is outside the reasonable contemplation of the Employee's employment
with the Employer and which are not derived from or the result in whole or
in part of the Employee's work with the Employer and are not related in any
way or to any degree to any project or field of work in which the
Employer was engaged or was actively considering during his employment by
Employer, if, within six (6) months from the date on which a complete
description (where necessary by sketches) of such an invention is submitted
to the Employer by the Employee, the Employer has not filed a first patent
application thereon, or requested a further period not exceeding six
months, the Employer shall grant a written release of the invention to the
Employee upon the Employee's written request (unless such release would
conflict with any contractual obligations of the Employer or with
governmental requirements) and such Employee shall thereafter be free to
make application for a patent in respect of such invention at his own
expense. In the event that the Employer does not release the invention in
accordance with the foregoing provisions, the Employer shall make
reasonable compensation for such invention.
6. RESTRICTIVE COVENANT. Upon the Employee's termination the Employee
shall not, without the prior written consent of the Employer, directly or
indirectly, within the Restricted Territory (hereinafter defined), in
competition with the Employer enter into or engage in the business of
manufacturing, jobbing, selling or marketing the services which are being
performed by the employer at the time of termination, either as an individual
for
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his own account, or as a partner or joint venturer, or as an employee, agent,
or salesman for any person, or as an officer, director or shareholder (except
ownership of publicly traded shares, so long as such is less than 1%) for a
period of two (2) years following the termination of his employment by the
Employer. Solicitation or acceptance of orders outside the Restricted
Territory for shipment to or delivery in, the Restricted Territory shall
constitute "engaging in business" in the Restricted Territory in violation of
this agreement. As used herein, "Restricted Territory" means the following
geographical area: "Continental United States for anatomically based
multi-media companies."
Both parties hereto recognize that the Employer does business throughout
such area, and the Employee has been responsible for operations throughout
such area, and such an area is necessary for the protection of the Employer.
This covenant on the part of the Employee shall be construed as an agreement
independent of any other provision of this agreement; and the existence of any
claim or cause of action of the employee against the Employer, whether
predicated on this agreement or otherwise, shall not constitute a defense to
the enforcement by the Employer of this covenant.
In the event of a breach or threatened breach by the Employee of the
provisions of this Section 6, the Employer shall be entitled to an injunction
restraining the Employee from violating the provisions of this Section 6.
Nothing herein shall be construed as prohibiting the Employer from pursuing
any other remedies available to the Employer, including the recovery of damages
and attorneys' fees, for a breach or threatened breach of this Section 6.
7. NONSOLICITATION OF CUSTOMERS. The Employee agrees to refrain, during
his employment and for a period of three (3) years following his termination,
from soliciting or accepting, or attempting to solicit or accept, directly or
by assisting others, any business from any of the Employer's customers,
including actively sought prospective customers, with whom the employee had
material contact during his employment for purposes of providing products or
services that are competitive with those provided by the employer's business.
8. NONSOLICITATION OF EMPLOYEES. The Employee agrees to refrain, during
his employment and for three (3) years following his termination, from
recruiting or hiring, or attempting to recruit or hire, directly or by
assisting other, any other employee of the Employer or its affiliates.
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9. TOLLING. The Employee's breach of Sections 6, 7, or 8 of this
Agreement shall automatically toll and suspend the period so stated in Sections
6, 7 or 8 for the amount of time that the violation continues.
10. TERMINATION OF EMPLOYMENT. The Employee is employed at will and may
be terminated by the Employer at any time, with or without cause, without prior
notification and without severance pay unless specifically provided otherwise
in writing.
11. SEVERABILITY AND INTERPRETATION. In the event that any provision of
this Agreement is held invalid by a court of competent jurisdiction, the
remaining provisions shall nonetheless by enforceable according to their terms.
Further, in the event that any provision are held to be overbroad as written,
such provisions shall be deemed amendable to narrow its application to the
extent necessary to make the provision enforceable according to applicable law
and enforceable as amended.
12. MISCELLANEOUS.
A. Section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
agreement. All terms and words used herein shall be construed to include
the number and gender as the context of this Agreement may require.
B. This agreement may be executed in any number of counterparts,
each of which shall be deemed an original part, all of which together
shall constitute one and the same instrument.
C. This agreement sets forth the entire agreement and understanding
of the parties with respect to the transactions contemplated hereby and
supersedes all prior agreements, arrangements, and understandings
relating to the subject matter, including any prior agreements between
the Employer and the Employee.
D. No representation, promise, inducement or statement of intention
has been made by the Employer or the Employee which is not embodied in
this agreement.
E. This agreement may be amended, modified, superseded or canceled,
and any of the terms, provisions and conditions hereof may be waived,
only by a written instrument executed by the Employer and the Employee.
The failure of any party at any time or times to require performance of
any provision herein shall not be construed to be a waiver of any
succeeding breach of such provision by such party.
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F. This agreement shall be interpreted and construed pursuant to
the laws of the State of Georgia. Any provisions in conflict with the
laws of the State of Georgia shall be deemed void and the parties shall
be bound by the remaining provisions.
G. The Employee agrees that the provisions of this agreement shall
be binding on his heirs, assigns, executors, administrators, and other
legal representatives.
IN WITNESS WHEREOF, the Employer has caused this agreement to be duly
executed and delivered by its officer duly authorized, and the Employee has
duly executed and delivered this agreement, all as of the date first above
written.
/s/ Joseph R. Fuller
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EMPLOYEE
A.D.A.M. SOFTWARE, INC.
By /s/ Christine Hamrick CES
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Title Human Resources Manager
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