**Exhibit10.4**

 

**EMPLOYEE NONCOMPETITION,NONDISCLOSURE AND DEVELOPMENTS AGREEMENT**

 

In consideration and as a condition of my employmentby META Group, Inc., or any of its subsidiaries, subdivisions or affiliates,(“MG,” or the “Company”), and the compensation received by me from the Companyfrom time to time, I hereby agree with the Company as follows:

 

1.                                       Duringmy employment by the Company, I will devote my full time and best efforts tothe business of the Company and I further agree that during my employment bythe Company and for a period of one (1) year thereafter, regardless of thereason for my termination of employment, I will not, directly or indirectly:

 

(i)                                                                                     aloneor as a partner, joint venturer, consultant, officer, director, employee,agent, independent contractor or stockholder of any company or businessorganization, engage in any business activity that is or may be directly orindirectly in competition with the “Business,” and/or accept employment withany person or entity that is or may be directly or indirectly engaged incompetition with the “Business”; provided, however, that therecord or beneficial ownership by me of 5% or less of the outstanding publiclytraded capital stock of any such company shall not be deemed, in and of itself,to be in violation of this Section 1;

 

(ii)                                                                                  employ,or assist any company or business organization by which I am employed or whichis directly or indirectly controlled by me to employ, any person who isemployed by the Company, or is an agent, representative or consultant of theCompany, at any time during my employment or during the period of one (1) yearthereafter, or in any manner seek to solicit or induce any such person to leavehis or her employment with the Company, or assist in the recruitment of any suchperson; or

 

(iii)                                                                               solicitor do business with any former or current client of the Company made known tome by MG during my employment with the Company on behalf of a businesscompetitive with the Company.

 

For purposes of this Agreement, the “Business” shallmean the development, planning, drafting, manufacturing, marketing,distributing, or sale of research and/or research advisory services includingbut not limited to publications, conferences and conventions.  On the third anniversary of the Effective Dateof the employment agreement between me and the Company dated as of July 31,2002 (the “Employment Agreement”), as such term is defined therein, I and theCompany will negotiate a modification of the scope of the definition of theBusiness as utilized in this Agreement, if necessary to ensure that itaccurately reflects the scope of the Company’s business at such time.  If I and the Company cannot reach mutualagreement on any such modification, the definition of the Business will remainas set forth herein.

 

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2.                                       Iwill not at any time, whether during or after the termination of my employmentfor any reason, reveal to any person or entity any Confidential Information (asdefined herein), except as may be required in the ordinary course of performingmy duties as an employee of the Company, and I shall keep secret all mattersentrusted to me and shall not use or attempt to use any such information in anymanner which may injure or cause loss or may be calculated to injure or causeloss, whether directly or indirectly, to the Company.

 

The term “ConfidentialInformation” shall mean any of the trade secrets or confidential informationconcerning the organization, business or finances of the Company or of anythird party which the Company is under an obligation to keep confidential,including as provided in Section 5 hereof. Such Confidential Information shall include, but is not limited to,trade secrets or confidential information respecting existing and future productsand services, designs, methods, formulas, drafts of publications, research,know-how, techniques, systems, databases, processes, software programs,developments or experimental work, works of authorship, customer lists,business plans, marketing plans, projects, and all other plans and proposals.

 

3.                                       Iagree that during my employment I shall not make, use or permit to be used anyCompany Documentation (as defined herein) otherwise than for the benefit of theCompany.  I further agree that I shallnot, after the termination of my employment for any reason, use or permitothers to use any such Company Documentation, it being agreed that all Companydocumentation shall be and remain the sole and exclusive property of theCompany.  Immediately upon the terminationof my employment for any reason I shall deliver all Company Documentation andall Confidential Information, and all copies thereof, to the Company, at itsmain office.

 

The term “Company Documentation” shall mean notes,drafts, research, memoranda, manuscripts, reports, proposals, business plans,marketing plans, lists, correspondence, records, drawings, sketches,blueprints, specifications, software programs, data, documentation or othermaterials of any nature and in any form, whether written, printed, or indigital format or otherwise, relating to any matter within the scope of thebusiness of the Company or concerning any of its dealings or affairs.

 

4.                                       Iagree that I will not, during my employment with the Company, improperly use ordisclose any proprietary information or trade secrets of my former employers orof any other third parties, and that I will not bring onto the premises of theCompany any unpublished document or any property belonging to my formeremployers or of any other third party, unless consented to in writing by said employersor third parties.

 

5.                                       Irecognize that the Company has received and in the future will receive fromthird parties their confidential or proprietary information subject to a dutyon the Company’s part to maintain the confidentiality of such information andto use it only for certain limited purposes. I agree that I owe the Company and such third parties, during the termof my employment and thereafter, regardless for the reason for my terminationof employment, a duty to hold all such confidential or proprietary informationin the strictest of confidence and not to disclose it to any person, entity orcorporation (except as necessary in carrying out my work for the Companyconsistent with the Company’s agreement with such third party) or to use it forthe benefit of

 

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anyone other than for the Company or such third party (consistent withthe Company’s agreement with such third party) without the express writtenauthorization of the Board of Directors of the Company.

 

6.                                       Ifat any time or times during my employment, I shall (either alone or withothers) make, conceive, create, discover, or reduce to practice any Development(as defined herein) that: (a) relates to the business of the Company or any customer of orsupplier to the Company or any of the products or services being developed,manufactured, marketed or sold by the Company or which may be used in relationtherewith; or (b) results from tasks assigned to me by the Company; or (c) resultsfrom the use of premises or personal property (whether tangible or intangible)owned, leased or contracted for by the Company, such Developments and thebenefits thereof are and shall immediately become the sole and absoluteproperty of the Company and its assigns, as works made for hire orotherwise.  I shall promptly disclose tothe Company (or any persons designated by it) each such Development.  I hereby assign any rights (including, butnot limited to, any copyrights and trademarks) I may have or acquire in theDevelopments and benefits and/or rights resulting therefrom to the Company andits assigns without further compensation and shall communicate, without cost ordelay, and without disclosing to others the same, all available informationrelating thereto (with all necessary plans, drafts, manuscripts, research andmodels) to the Company.

 

The term “Developments” shall mean any modification,discovery, design, development, improvement, process, software program,software code, manuscript, work of authorship, work made for hire, derivativework, documentation, publication, formula, data, technique, know-how, tradesecret or intellectual property right whatsoever or any interest therein(whether or not registrable under copyright, trademark or similar statutes(including but not limited to the Semiconductor Chip Protection Act) or subjectto analogous protection).

 

7.                                       Iwill also promptly disclose to the Company, and the Company hereby agrees toreceive all such disclosures in confidence, any other modification, discovery,design, development, improvement, process, software program, software code,manuscript, documentation, publication, formula, data, technique, know-how,secret or intellectual property right whatsoever or any interest therein(whether or not registrable under copyright or similar statutes or subject toanalogous protection) made, conceived, discovered, reduced to practice orpossessed by me (either alone or with others) at any time or times during myemployment for the purpose of determining whether they constitute“Developments,” as defined in Paragraph 6.

 

8.                                       Iwill, during my employment and at any time thereafter, regardless of the reasonfor the termination of my employment, at the request and cost of the Company,promptly sign, execute, make and do all such deeds, documents, acts and thingsas the Company and its duly authorized officers may reasonably require:

 

(a)                                  toapply for, obtain, register and vest in the name of the Company alone (unlessthe Company otherwise directs) copyrights, trademarks or other analogousprotection in any country throughout the world and when so obtained or vestedto renew and restore the same; and

 

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(b)                                 todefend any judicial, opposition or other proceedings in respect of suchapplications and any judicial, opposition or other proceedings or petitions orapplications for revocation of such copyright, trademark or other analogousprotection.

 

9.                                       Inthe event the Company is unable, after reasonable effort, to secure mysignature on any application for copyright or trademark registration or otherdocuments regarding any legal protection relating to a Development (as definedin Paragraph 6), whether because of my physical or mental incapacity orfor any other reason whatsoever, I hereby irrevocably designate and appoint theCompany and its duly authorized officers and agents as my agent andattorney-in-fact, to act for and in my behalf and stead to execute and file anysuch application or applications or other documents and to do all otherlawfully permitted acts to further the prosecution and issuance of copyright ortrademark registrations or any other legal protection thereon with the samelegal force and effect as if executed by me.

 

10.                                 Iagree to keep and maintain adequate and current written records of allDevelopments (as defined in Paragraph 6 hereto) made by me (solely or jointlywith others) during the term of my employment with the Company.  The records will be in the form of notes,sketches, drawings, and any other format that may be specified by the Companyat all times.

 

11.                                 Iagree to and consent to the use of my name, picture, signature, voice, image,and/or likeness by the Company. Further, I waive all claims I have against the Company and its officers,employees, and agents arising out of the Company’s use, adaptation,reproduction, modification, distribution, exhibition, or other commercialexploitation of my name, picture, signature, voice, image, and/or likeness,including but not limited to right of privacy, right of publicity andcelebrity, use of voice, name or likeness, defamation, and copyrightinfringement.  I further represent andwarrant that I have not heretofore made any contract or commitment in conflictwith this consent and waiver.

 

12.                                 Iagree that, at the time of leaving the employ of the Company for any reason, Iwill deliver to the Company (and will not keep in my possession or deliver toanyone else) any and all Confidential Information (as defined in Paragraph 3),Company Documentation (as defined in Paragraph 3), keys, materials,equipment, devices, other documents or property, or reproductions of anyaforementioned items belonging to the Company, its successors or assigns.  I further agree to return to or otherwiseinform the Company of all means of access to any account, database, or computersystem of the Company (whether personal to me or public, published orunpublished, standard or backdoor, including all account names, passwords,access codes, unique personal identification numbers, any code kept secret andany other means allowing employee access to Company data or documentation).

 

13.                                 Iagree that any breach of this Agreement by me will cause irreparable damage tothe Company and that in the event of such breach the Company shall have, inaddition to any and all remedies of law, the right to an injunction, specificperformance or other equitable relief to prevent the violation of my obliga­tionshereunder, without showing or proving actual damages or exhausting any Company remedyin the form of money damages and without having to post a bond or any othersecurity.

 

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14.                                 Iunderstand that this Agreement does not create an obligation on the Company orany other person to continue my employment. I further acknowledge and agree that my employment is at-will, and thatboth I and the Company can terminate my employment without reason and at anytime, subject to the Employment Agreement.

 

15.                                 Irepresent that my performance of all of the terms of this Agreement and as anemployee of the Company does not and will not breach any agreement to keep inconfidence proprietary information acquired by me in confidence or in trustprior to my employment by the Company. I have not entered into, and I agree I will not enter into, anyagreement either written or oral in conflict herewith.

 

16.                                 Ifurther represent that if the representations set forth in the precedingparagraph are inapplicable, I have attached hereto a copy of each agreement, ifany, which presently affects my compliance with the terms of thisAgreement.  (Such copy specifies theother contracting party or employer, the date of such agreement, the date oftermination of any employment.)  IFTHERE ARE ANY SUCH AGREEMENTS, THE UNDERSIGNED SHOULD INITIAL HERE.  OTHERWISE IT WILL BE DEEMED THAT THERE ARENO SUCH AGREEMENTS.           .

 

17.                                 Anywaiver by the Company of a breach of any provision of this Agreement shall notoperate or be construed as a waiver of any subsequent breach of such provisionor any other provision hereof.

 

18.                                 ThisAgreement, together with the Employment Agreement, sets forth the entireagreement and understanding between the Company and me relating to the subjectmatter herein and supersedes all prior discussions, agreements andunderstandings between us respecting the subject matter hereof.  Any amendment to or modification of thisAgreement, or any waiver of any provision hereof, must be in writing and signedby the Company.  Any subsequent changeor changes in my duties, salary compensation or employment status will notaffect the validity or scope of this Agreement.  Any waiver by the Company of any provision of this Agreementshall not operate or be construed as a waiver of any subsequent breach thereof.

 

19.                                 Ihereby agree that each provision herein shall be treated as a separate andindependent clause, and the unenforceability of any one clause shall in no wayimpair the enforce­ability of any of the other clauses of the Agreement.  Moreover, if one or more of the provisionscontained in this Agreement shall for any reason be held to be excessivelybroad as to scope, activity, subject or otherwise so as to be unenforceable atlaw, such provision or provisions shall be construed by the appropriate judicialbody by limiting or reducing it or them, so as to be enforceable to the maximumextent compatible with the applicable law as it shall then appear.  I hereby further agree that the language ofall parts of this Agreement shall in all cases be construed as a wholeaccording to its fair meaning and not strictly for or against any of theparties.

 

20.                                 ThisAgreement shall be effective as of the date entered below.  My obligations under this Agreement shallsurvive the termination of my employment regardless of the reason of suchtermination and shall be binding upon my heirs, executors, admin­istrators andlegal representatives.

 

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21.                                 TheCompany shall have the right to assign this Agreement to its successors andassigns, and all covenants and agreements hereunder shall inure to the benefitof and be enforceable by said successors or assigns.

 

22.                                 ThisAgreement shall be governed by and construed in accordance with the laws of theState of Connecticut and shall in all respects be interpreted, enforced andgoverned under the internal and domestic laws of such state, without givingeffect to the principles of conflicts of laws of such state.  Any claims or legal actions by one partyagainst the other arising out of the relationship between the partiescontemplated herein (whether or not arising under this Agreement) shall begoverned by the laws of the State of Connecticut and shall be commenced andmaintained in any state or federal court located in Connecticut, and bothparties hereby submit to the jurisdiction and venue of any such court.

 

IN WITNESS WHEREOF, the undersigned has executed thisAgree­ment as a sealed instrument as of the 31st day of July, 2002.

 

 

 
|   |   /s/ Alfred J. Amoroso |   |
|--------|-----------------------------------|--------|
|   | Name:  Alfred  J. Amoroso    |
|   |                              |
|   |                              |
|   |                              |
|   |   20 Farmhill Court     |   |
|   | Address  Hillsborough, California |

 

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**TERMINATION CERTIFICATION**

 

This is to certify that I do not have in mypossession, nor have I delivered to anyone else or failed to return, any andall Confidential Information and Company Documentation (as such terms aredefined in the Employee Noncompetition, Nondisclosure and DevelopmentsAgreement between META Group, Inc. and me dated July 31, 2002), keys,materials, equipment, devices, other documents or property, or reproductions ofany aforementioned items belonging to the Company, its successors or assigns.

 

I agree that I have returned to or otherwise informedthe Company of all means of access to any account, database, or computer systemof the Company (whether personal to me or public, published or unpublished,standard or backdoor, including all account names, passwords, access codes,unique personal identification numbers, any code kept secret and any othermeans allowing employee access to Company data or documentation).

 

I further certify that I have complied with all theterms of the Agreement, including the reporting of any Developments (as definedtherein), conceived or made by me (solely or jointly with others) covered bythe Agreement and that I will continue to do so.

 

I further agree that, in compliance with theAgreement, I will not at any time reveal to any person or entity anyConfidential Information (as defined therein) pertaining to the Company or anyconfidential or proprietary information of a third party subject to a duty onthe Company’s part to keep confidential, except and to the extent that any suchinformation through no fault of my own has become or hereafter becomes publicknowledge within the industry or, as evidenced by contemporaneous writings, hasbeen or is hereafter received by me from a third party without breach of anyduty of confidentiality by such third party.

 

 
|   |                   |   |
|--------|------------------------|--------|
|   | Name:Alfred J. Amoroso |
|   |                   |
|   |                   |
|   |                   |   |
|   | Date                   |

 

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