AGAINST THE UNAUTHORIZED USE OR THE DISCLOSURE OF ANY CONFIDENTIAL INFORMATION
OF EMPLOYER AND ITS AFFILIATES PRESENTLY KNOWN OR HEREAFTER OBTAINED BY EMPLOYEE
DURING HIS EMPLOYMENT UNDER THIS AGREEMENT, EMPLOYEE AGREES THAT FOR A PERIOD OF
TWELVE (12) MONTHS AFTER THE TERMINATION OR
7
CESSATION OF HIS EMPLOYMENT WITH EMPLOYER AT ANY TIME AND FOR ANY REASON, AND
REGARDLESS OF WHETHER ANY PAYMENTS ARE MADE TO EMPLOYEE UNDER THIS AGREEMENT AS
A RESULT OF SUCH TERMINATION (BUT SUBJECT TO THE PROVISIONS OF SECTION 13
HEREOF), EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY, FOR HIMSELF OR ON BEHALF OF
ANY OTHER CORPORATION, PERSON, FIRM, PARTNERSHIP, ASSOCIATION, OR ANY OTHER
ENTITY (WHETHER AS AN INDIVIDUAL, AGENT, SERVANT, EMPLOYEE, EMPLOYER, OFFICER,
DIRECTOR, SHAREHOLDER, INVESTOR, PRINCIPAL, CONSULTANT OR IN ANY OTHER
CAPACITY), ENGAGE OR PARTICIPATE IN ANY BUSINESS WHICH ENGAGES IN COMPETITION
WITH THE BUSINESSES BEING CONDUCTED BY EMPLOYER OR ANY OF ITS AFFILIATES DURING
THE TERM OF EMPLOYMENT ANYWHERE IN ANY STATE IN THE UNITED STATES OR IN ANY
FOREIGN COUNTRY WHERE EMPLOYER OR ANY OF ITS AFFILIATES DISTRIBUTES SOFTWARE OR
PERFORMS SERVICES RELATED TO THE DISTRIBUTION OF SOFTWARE, OR ANY OTHER BUSINESS
IN WHICH EMPLOYER OR ANY OF ITS AFFILIATES WAS ACTIVELY ENGAGED AT THE TIME OF
TERMINATION OF EMPLOYEE'S EMPLOYMENT WITH EMPLOYER; PROVIDED, HOWEVER, THAT THIS
PROVISION SHALL NOT PROHIBIT EMPLOYEE OR ANY OF HIS AFFILIATES FROM
(I) PURCHASING OR HOLDING AN AGGREGATE EQUITY INTEREST OF UP TO 1%, SO LONG AS
EMPLOYEE AND HIS AFFILIATES COMBINED DO NOT PURCHASE OR HOLD AN AGGREGATE EQUITY
INTEREST OF MORE THAN 5%, IN ANY BUSINESS IN COMPETITION WITH EMPLOYER, OR
(II) ENGAGE IN COMPETITION WITH ANY AFFILIATE OR BUSINESS DIVISION OF EMPLOYER,
UNLESS EMPLOYEE HAS HAD DURING THE TERM OF HIS EMPLOYMENT HEREUNDER ACCESS TO
THE CONFIDENTIAL INFORMATION OF SUCH AFFILIATE OR BUSINESS DIVISION; OR
(III) SERVING AS AN OFFICER, EMPLOYEE OR CONSULTANT TO ANY ENTITY OR BUSINESS
WHICH OPERATES THROUGH MULTIPLE AFFILIATES OR BUSINESS DIVISIONS, AS LONG AS
EMPLOYEE IS SERVING AS AN OFFICER, EMPLOYEE OR CONSULTANT TO AN AFFILIATE OR
BUSINESS DIVISION WHICH IS NOT ENGAGED IN COMPETITION WITH EMPLOYER OR ANY OF
ITS AFFILIATES.
SECTION 13.
EFFECT OF TERMINATION.
THE PROVISIONS OF SECTION 11 AND
SECTION 12 SHALL TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT IN THE EVENT
(I) EMPLOYEE'S EMPLOYMENT IS TERMINATED BY EMPLOYER WITHOUT CAUSE OR BY EMPLOYEE
FOR GOOD REASON, AND (II) EMPLOYER FAILS TO TIMELY PAY EMPLOYEE THE ACCRUED
AMOUNTS AND/OR ANY OTHER AMOUNTS DUE PURSUANT TO SECTION 7.
SECTION 14.
GENERAL.
(A)
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE
IN WRITING OR BY WRITTEN TELECOMMUNICATION, AND SHALL BE DEEMED TO HAVE BEEN
DULY GIVEN IF DELIVERED PERSONALLY OR IF MAILED BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED OR BY WRITTEN TELECOMMUNICATION, TO THE RELEVANT ADDRESS SET
FORTH BELOW, OR TO SUCH OTHER ADDRESS AS THE RECIPIENT OF SUCH NOTICE OR
COMMUNICATION SHALL HAVE SPECIFIED TO THE OTHER PARTY IN ACCORDANCE WITH THIS
SECTION 14(A):
If to Employer, to:
Availl, Inc.
c/o GlobalSCAPE,