Non-Competition, Non-Disclosure and Assignment of Inventions Agreement - iVillage Inc. and Nancy Evans
FORM OF NON-COMPETITION, NON-DISCLOSURE AND
ASSIGNMENT OF INVENTIONS AGREEMENT
WITH
iVILLAGE INC.
In consideration of my employment or continued employment, as the
case may be, with iVillage Inc., a Delaware corporation (the "Company"), and
the compensation received by me from the Company from time to time, I hereby
agree with the Company as follows:
1. ACKNOWLEDGMENT. I understand and acknowledge that:
(a) The Company is engaged in a continuous program of
research, design, development, production, publishing, marketing and servicing
with respect to its business and as part of my employment by the Company I am
(or may be) expected to make new contributions and inventions of value to the
Company.
(b) My employment may create a relationship of confidence and
trust between me and the Company with respect to certain information
applicable to the business of the Company or the business of any client,
customer, or business partner of the Company, which may be made known to me by
the Company or by any client, customer, or business partner of the Company, or
learned by me during the period of my employment.
(c) The Company possesses and will continue to possess
information that has been created, discovered or developed by, or otherwise
become known to, the Company (including, without limitation, information
created, discovered, developed or made known by me during the period of or
arising out of my employment by the Company, whether before or after the date
hereof) as to which property rights have been or may be acquired by or
assigned or otherwise conveyed to the Company, which information has
commercial value in the business in which the Company is engaged and may be
treated by the Company as confidential.
2. COMMITMENT TO COMPANY. During the period of my employment by the
Company, I will devote substantially all of my business time, energy and
attention to the business and affairs of the Company.
3. WORKS FOR HIRE. I acknowledge that all right, title and interest I
obtain in all works of authorship, designs, computer programs, copyrights and
copyright applications,
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inventions, discoveries, developments, know-how, systems, processes, formulae,
patent and patent applications, trade secrets, new products, internal reports
and memoranda, strategies, and marketing plans conceived, devised, developed,
written, reduced to practice, or otherwise created or obtained by me in
connection with my employment by the Company (the "Intellectual Property") are
regarded as "works for hire". I hereby transfer and assign to the Company all
right, title, and interest to the Intellectual Property. Promptly after I
obtain knowledge of any Intellectual Property, I will disclose it to the
Company. Upon request of the Company and at its cost, I will execute and
deliver all documents or instruments and take all other action as the Company
may deem reasonably necessary to transfer all right, title, and interest in
any Intellectual Property to the Company; to vest in the Company good, valid
and marketable title to such Intellectual Property; to perfect, by
registration or otherwise, trademark, copyright and patent protection of the
Company with respect to such Intellectual Property; and otherwise to protect
the Company's trade secrets and proprietary interest in such Intellectual
Property.
4. DOCUMENTATION. In the event of the termination of my employment
for any reason, I will deliver to the Company all documents, notes, drawings,
blueprints, formulae, specifications, computer programs, data and other
materials of any nature pertaining to any Intellectual Property or to my work
with the Company, and will not take any of the foregoing or any reproduction
of any of the foregoing that is embodied in a tangible medium of expression.
5. CONFIDENTIALITY. At all times, both during my employment by the
Company and after its termination, I will keep in strict confidence and will
not disclose any confidential or proprietary information relating to the
business of the Company, or any client, customer, or business partner of the
Company, to any person or entity, or make use of any such confidential or
proprietary information for my own purposes or for the benefit of any person
or entity, except as may be necessary in the ordinary course of performing my
duties as an employee of the Company.
6. RESTRICTIVE COVENANT. I hereby acknowledge and recognize that I
may possess confidential information and that the business of the Company is
highly competitive. Accordingly, I hereby agree that I will not, during the
Competitive Period, (i) become directly and materially involved in activities
contributing to the design or marketing of a Protected Channel (as defined
below) developed or produced by a Competitive Business (as defined below),
whether such involvement shall be as an employer, officer, director, owner,
employee, partner or other participant, (ii) assist others in any involvement
in any Competitive Business in the manner described in the foregoing clause (i),
or (iii) induce employees of the Company or its affiliates or subsidiaries to
terminate their employment with the
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Company or such affiliate or subsidiary or involve themselves in any
Competitive Business in the manner described in the foregoing clause (i).
"Competitive Period" means the period of my employment by the Company and in
the event that my employment with the Company is terminated (A) for any reason
whatsoever other than any termination by the Company without cause, for an
additional period of twelve months following such termination, or (B) by the
Company without cause, (x) if the Company agrees to pay my base salary then in
effect for six months following such termination, for an additional period of
twelve months following such termination, and (y) if I deliver an Election
Notice in accordance with the Stockholders' Agreement dated the date hereof
among the Company, myself, and its other stockholders, an additional period
(to be added to any twelve-month period under clause (x)) equal to the shorter
of twelve months and the period between such termination and the next
anniversary of the date hereof. "Competitive Business" means and includes any
business located in the United States of America that develops or produces any
online channel the content of which is substantially similar to any online
channel produced or under active development by the Company during my
employment or at the time of such termination (a "Protected Channel");
provided, however, if the Qualified Capital Financing has not been completed
prior to September 19, 1996, and the Board of Directors of the Company
determines that the Company will not produce any online channel other than the
Parenting Channel, then Competitive Business means any such business that
develops or produces any online channel the content of which is substantially
similar to the content of the Parenting Channel. "Qualified Capital Financing"
means any issuance by the Company in one transaction or a series of related
transactions of shares of its preferred stock after September 19, 1995, for an
aggregate cash purchase price of at least $1,500,000.
I understand that the foregoing obligation is not meant to prevent me
from earning a living or fostering my career. It does intend, however, to
prevent any Competitive Business from gaining any unfair advantage from my
knowledge of confidential information.
7. OTHER AGREEMENTS. I represent and warrant that my execution and
delivery of this Agreement and the performance of all the terms of this
Agreement do not and will not breach any agreement to keep in confidence
proprietary information acquired by me in confidence or trust. I have not
entered into and shall not enter into any agreement, either written or oral,
in conflict with this Agreement. I represent that I have not brought and will
not bring with me to the Company or use at the Company any materials or
documents of an employer or a former employer that are not generally available
to the public, unless express written authorization from such employer for
their possession and use has been obtained. I also understand that I am not to
breach any obligation of confidentiality that I have to any employer or
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former employer and agree to fulfill all such obligations during the period of
my affiliation with the Company.
8. REMEDIES. I acknowledge that a remedy at law for any breach or
threatened breach of the provisions of this Agreement would be inadequate and
therefore agree that the Company shall be entitled to injunctive relief in
addition to any other available rights and remedies in case of any such breach
or threatened breach; provided, however, that nothing contained herein shall
be construed as prohibiting the Company from pursuing any other remedies
available for any such breach or threatened breach.
9. ASSIGNMENT. This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation or
otherwise and any assignee of all or substantially all of its business and
properties, but neither this Agreement nor any rights or benefits hereunder
may be assigned by me.
10. INTERPRETATION. It is the desire and intent of the parties that
the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete therefrom the portion thus adjudicated to
be invalid or unenforceable, such deletion to apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made. In addition, if any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
11. NOTICES. Any notice which a party is required or may desire to
give pursuant to this Agreement shall be given by personal delivery or
registered or certified mail, return receipt requested, addressed to me at my
address of record with the Company and addressed to the Company at its
principal office, or at such other place as either party may from time to time
designate in writing. The date of personal delivery or the date of mailing any
such notice shall be deemed to be the date of delivery thereof.
12. WAIVERS. If either party shall waive any breach of any provision
of this Agreement, such party shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
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14. NO EMPLOYMENT AGREEMENT. I acknowledge that this Agreement does
not constitute an employment agreement and agree that this Agreement shall be
binding upon me regardless of whether or not my employment shall continue for
any length of time hereafter and whether or not my employment is terminated
for any reason whatsoever by the Company or me or both.
15. COMPLETE AGREEMENT; AMENDMENTS; PRIOR AGREEMENTS. The foregoing
is the entire agreement of the parties with respect to the subject matter
hereof and may not be amended, supplemented, cancelled or discharged except by
written instrument executed by both parties. This Agreement supersedes all
prior agreements between the parties with respect to the matters covered
hereby.
Date: 9/19/95 Name:
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Signature
Accepted and agreed to as of
the date above written by
iVillage Inc.
By:
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AMENDMENT NO. 1 dated as of ___________, to the
Non-Competition, Non-Disclosure and Assignment of
Inventions Agreement dated September 19, 1995 (the
"Agreement"), between iVILLAGE INC., a Delaware
corporation (the "Company") and ___________ (the
"Executive") .
The parties desire to amend the Agreement in certain respects with
respect to the non-competition covenant contained therein and to provide for
severance arrangements for the Executive, as hereinafter set forth. All
capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement.
NOW THEREFORE, pursuant to Section 15 of the Agreement, the
undersigned hereby amend the Agreement as follows:
(a) The definition of "Competitive Period" in Section 6 of the
Agreement is hereby amended and restated as follows:
"'Competitive Period', means (i) the period of my
employment by the Company and an additional period
of following the termination of my employment by
the Company for any reason and (ii) if I deliver
the Election Notice in accordance with the Amended
and Restated Stockholders' Agreement dated as of
May 6, 1996, an additional period (to be added to
the period provided for in clause (i)) equal to the
shorter of twelve months and the period between
such termination and the next anniversary of the
date hereof."
(b) Section 14 of the Agreement is hereby amended and restated as
follows:
"NO EMPLOYMENT AGREEMENT; SEVERANCE. I acknowledge
that this Agreement does not constitute an
employment agreement and agree that this Agreement
shall be binding upon me regardless of whether or
not my employment shall continue for any length of
time hereafter and whether or not my employment is
terminated for any reason whatsoever by the Company
or me or both. It is, however, understood and
agreed by the Company that if my employment by the
Company is terminated without cause, the Company
shall pay me as severance and in consideration of
my complying with my post-employment obligations
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under Section 6 hereof, an amount equal to my base
salary then in effect for twelve months following
such termination, payable on the same basis as my
base salary was paid prior to such termination."
(c) Except as amended as provided herein, the Agreement shall remain
in full force and effect in accordance with its terms.
(d) This Amendment shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly therein (without giving effect to principles of conflicts of
laws).
(e) This Amendment may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all
such counterparts shall constitute one agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
No. 1 as of the date first written above.
iVILLAGE INC.
By:
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Name:
Title:
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under Section 6 hereof, an amount equal to my base
salary then in effect for twelve months following
such termination, payable on the same basis as my
base salary was paid prior to such termination."
(c) Except as amended as provided herein, the Agreement shall remain
in full force and effect in accordance with its terms.
(d) This Amendment shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly therein (without giving effect to principles of conflicts of
laws).
(e) This Amendment may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all
such counterparts shall constitute one agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
No. 1 as of the date first written above.
iVILLAGE INC.
By:
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Name:
Title:
/s/ Nancy Evans
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Nancy Evans