this is another situation from the same company and the question i asked on 6/21/2011:
This comapny that my wife and I are invested in as a private placement and have a stock transfer
agreement as well as in my own LLC
, my partner and I also have a sales/marketing agreement (he too is invested in the private placement we are in). In an Addendum to the Stock Transfer Agreement, in Article II, there is a Non-compete and Non-disclosure Agreement as part of the document.
We are now engaging with another company, per the CEO/majority shareholder
, who we are now planning to jointly work and go to market with. He wants me to work directly with the CEO of this company in a go-to-market strategy, share information and jointly sell our products.
To me, this is a conflict of interest based on the non-compete/non-disclosure language. I want to keep the stock and contract
in place but protect us from violating this. To rescind this Article II what language should I use to openly work with this new company or any company (as they have joint production, marketing etc with other companies)?
my # XXXXX goal is to eliminate the non-compete and # XXXXX be able to openly discuss sales and marketing strategy and produce sales and revenue with the new company regardless of which products I ( we ) are selling.
Here is the language of Article II:
NON-COMPETE AND NON-DISCLOSURE AGREEMENT
The Seller and Buyer are interested in exchanging business
and technical information for the purpose of discussing and evaluating whether to enter into a commercial relationship (“Purpose”).
The parties agree that all information that may be disclosed to, received or passively observed by the Recipient in connection with the Purpose is considered to be “secret information” covered by this agreement, including but not limited to, business model, customer information and lists, specifications, design plans, prototypes, drawings, software, and software documentation.
For (3) years after disclosure of the secret information, each party agrees to protect the secret information with the same degree of care as the recipient employs for the protection of its own trade secrets and secret information; not use, copy or record any secret information for any reason other than the purpose; to limit access to the secret information to its employees, agents, or independent contractors on a “need to know” basis; and not disclose the secret information to any third party without the consent of a majority vote of the Board of Directors
Each party agrees that it shall not acquire any right, title, license or any other intellectual property right in respect to the secret information of the other party. None of the secret information shall constitute any representation, warranty, assurance, guarantee or inducement by the disclosure to the recipient of any kind. Upon the expiration of the obligations under this agreement or an earlier request by the Board of Directors of the company, the recipient shall have no right to keep or use and shall promptly destroy or return to the other party all secret information in the recipients possession or control.
NON COMPETE - After review of information, acceptance or rejection of any part of the introduced business model or any of its components, the receiving party agrees not to compte in any way shape or formed.