I do not have access to the earlier posts from last year so I will need some clarification. Is the CEO who wants you to do this go to market effort with another company, the company in which you invested through the private placement? Are you also employed by that company? Would the work you are being asked to perform violate your non compete if you attempted to do it on your own with the private placement company approval?
The previoius post was regarding getting out of the agreement based on falsified information to get us to invest and if the SEC viewed that as fraud and federal offense. Management has changed and we are not attempting to get out of the agreement, just out of Article II, the non-compete (so we can sell with anyone and not be constrained by an investment clause vs employment) and non-disclosure so we can openly talk to the other company.
Tell me if I understand properly. You have a non compete with the company you invested in called company A. You do not work for Company A. You have been asked by Company A to work out a joint marketing strategy with Company B. You do not want to restrict your efforts for Company B to just those products Company A sells but to assist Company B in marketing any of its products. Finally, you would like to get out of the non compete non disclosure agreement with Company A. Is my understanding correct?
Yes, correct.To add to it, we do have a sales agreement with Company A and will need to create a new agreement with Company B to sell their products and our joint products and however Company A & B form a new venture. Regardless, we see this as an opportunity to get out of the Article II as it was an investment that contained language that prohibited our ability to sell in this market space. We want to get out of non compete agreement for any company we wish to work with, not just limited to Company B.
There are two things to distinguish, one is to work with competitiors the other is disclosure of confidential information. You want to eliminate any interpretation that says you cannot work with a competitor. You cannot get out of the confidentiality agreement. You should take the position that the non disclosure applies and continues to apply. However, the non compete which is ambiguous and overly broad if read literally should be eliminated. You want to delete the non compete section of the agreement. On the non disclosure, you want to exclude from the non disclosure confidential information you reasonably believe necessary in connection with the joint marketing effort. You should create a new agreement that replaces what you have and covers each company individually and their joint effort. It should restrict you to disclosing the confidential information of A and B to A and B to the extent that you consider necessary or reasonable in connection with the joint marketing effort. You agree that you will keep the confidential information of each company confidential except to the extent it is disclosed to one another for the joint marketing effort. There would be no non compete and no restriction on your ability to work for anyone so long as there is no disclosure of confidential information. This type of situation is very common so they are not in a unique situation.
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the reasoning is there. to my origninal question, how is this worded? i.e. This replaces the language in Article
whoops, hit the return, will reply shortly.
I will wait to hear from you.
Do you think it is suffice to have this detailed in document on thier letter head and notarized laying out the various details of our arrangement. identifiying there no longer is a non compete for myself, partner and LLC., that we will need to work with several companies to co market and sell as joint products and others not part of Company A's product line and leave the stock agreement in place.
Yes you can do the letter which will effectively amend the original stock purchase agreement.
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