CONFIDENTIALITY AND NONCOMPETE AGREEMENT
THIS AGREEMENT is made as of September 13, 2000, between
Xxxxxx Xxxxxxx, Inc., a Florida corporation (the "Company"), and Xxxxxx X.
Xxxxxxx ("Employee").
The Company and Employee desire to enter into an agreement (i)
defining the relative rights of the Company and Employee with respect to
Intellectual Property (as defined below) owned by the Company to which Employee
may have access or may contribute as a result of Employee's employment with the
Company and (ii) setting forth the obligation of Employee to refrain from
competing with the Company during his employment with the Company and for a
period of time thereafter as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Employee hereby
agree as follows:
1. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
(a) Employee shall not disclose or use at any time, either
during his employment with the Company or thereafter, any Confidential
Information (as defined below) of which Employee is or becomes aware, whether or
not such information is developed by him, except to the extent that such
disclosure or use is directly related to and required by Employee's performance
of duties assigned to Employee by the Company. Employee shall take all
appropriate steps to safeguard Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft.
(b) As used in this Agreement, the term "Confidential
Information" means information that is not generally known to the public and
that is used, developed or obtained by the Company in connection with its
business, including but not limited to (i) store performance, (ii) research,
(iii) marketing plans and activities, (iv) operating procedures, (v) equipment
mix, (vi) maintenance procedures, (vii) financing sources and practices, (viii)
shareholder lists, (ix) drawings, photographs and reports, (x) computer
software, including operating systems, applications and program listings, (xi)
flow charts, manuals and documentation, (xii) data bases, (xiii) accounting and
business methods, (xiv) customer lists, (xv) copyrightable works, (xvi) all
technology and trade secrets, and (xvii) all similar and related information in
whatever form. Confidential Information shall not include any information that
has been published in a form generally available to the public prior to the date
Employee proposes to disclose or use such information. Information shall not be
deemed to have been published merely because individual portions of the
information have been separately published, but only if all material features
comprising such information have been published in combination.
2. THE COMPANY'S OWNERSHIP OF INTELLECTUAL PROPERTY.
(a) In the event that Employee as part of his activities on
behalf of the Company generates, authors or contributes to any invention,
design, new development, device, product, method or process (whether or not
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patentable or reduced to practice or comprising Confidential Information), any
copyrightable work (whether or not comprising Confidential Information) or any
other form of Confidential Information relating directly or indirectly to the
Company's business as now or hereinafter conducted (collectively, "Intellectual
Property"), Employee acknowledges that such Intellectual Property is the
exclusive property of the Company and hereby assigns all right, title and
interest in and to such Intellectual Property to the Company. Any copyrightable
work prepared in whole or in part by Employee will be deemed "a work made for
hire" under Section 201(b) of the 1976 Copyright Act, and the Company shall own
all of the rights comprised in the copyright therein. Employee shall promptly
and fully disclose all Intellectual Property to the Company and shall cooperate
with the Company to protect the Company's interests in and rights to such
Intellectual Property (including, without limitation, providing reasonable
assistance in securing patent protection and copyright registrations and
executing all documents as reasonably requested by the Company, whether such
requests occur prior to or after termination of Employee's employment with the
Company).
3. DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT. As
requested by the Company from time to time and upon the termination of
Employee's employment with the Company for any reason, Employee shall promptly
deliver to the Company all copies and embodiments, in whatever form, of all
Confidential Information and Intellectual Property in Employee's possession or
within his control (including, but not limited to, written records, notes,
photographs, manuals, notebooks, documentation, program listings, flow charts,
magnetic media, disks, diskettes, tapes and all other materials containing any
Confidential Information or Intellectual Property) irrespective of the location
or form of such material and, if requested by the Company, shall provide the
Company with written confirmation that all such materials have been delivered to
the Company.
4. NON-COMPETE, NON-SOLICITATION.
(a) Employee acknowledges that, in the course of Employee's
employment with the Company, Employee shall become familiar with the Company's
trade secrets and with other Confidential Information concerning the Company and
that Employee's services shall be of special, unique and extraordinary value to
the Company. Therefore, Employee agrees that, during his employment with the
Company and for two years thereafter (the "Noncompete Period"), Employee shall
not directly or indirectly own any interest in, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of the Company, as such businesses exist or are in
process on the date of the termination of Employee's employment, within any
geographical area in which the Company engages or plans to engage in such
businesses. Nothing herein shall prohibit Employee from being a passive owner of
not more than 2% of the outstanding stock of any class of a corporation that is
publicly traded, so long as Employee has no active participation in the business
of such corporation.
(b) During the Noncompete Period, Employee shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of the Company to leave the employ of the Company, or in any way
interfere with the relationship between the Company and any employee thereof,
(ii) hire any person who was an employee of the Company at any time during the
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Employment Period (unless such employee was terminated by the Company), or (iii)
induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company to cease doing business
with the Company, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company.
(c) If, at the time of enforcement of this Section 4, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Employee agrees that the restrictions contained
in this Section 4 are reasonable.
(d) In the event of the breach or a threatened breach by
Employee of any of the provisions of this Section 4, the Company, in addition
and supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of an alleged breach or violation by Employee of this
Section 4, the Noncompete Period shall be tolled until such breach or violation
has been duly cured.
5. NOTICES. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, or mailed by first class
mail, return receipt requested, to the recipient at the address below indicated:
NOTICES TO EXECUTIVE:
--------------------
Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
NOTICES TO THE COMPANY:
----------------------
Xxxxxx Xxxxxxx, Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: President
If sent via regular U.S. mail to:
X.X. Xxx 000000
Xxxx Xxxxxxxxxx, XX 00000-0000
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or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or three (3) days after so mailed.
6. GENERAL PROVISIONS.
(a) COMPANY SUBSIDIARIES. For purposes of this Agreement,
the term "Company" shall include all subsidiaries of the Company.
(b) NOT AN EMPLOYMENT AGREEMENT. Employee and the Company
acknowledge and agree that this Agreement is not intended and should not be
construed to grant Employee any right to continued employment with the Company
or to otherwise define the terms of Employee's employment with the Company.
(c) ABSENCE OF CONFLICTING AGREEMENTS. Employee hereby
warrants and covenants that (i) his employment by the Company and his execution,
delivery and performance of this Agreement do not and shall not result in a
breach of the terms, conditions or provisions of any agreement, instrument,
order, judgment or decree to which Employee is subject, (ii) Employee is not a
party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Employee, enforceable in accordance with its
terms.
(d) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. The parties
agree that a court of competent jurisdiction making a determination of the
invalidity or unenforceability of any term or provision of Section 4 of this
Agreement shall have the power to reduce the scope, duration or area of any such
term or provision, to delete specific words or phrases or to replace any invalid
or unenforceable term or provision in Section 4 with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
(e) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
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(f) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(g) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and Employee and their respective successors and assigns;
provided that the rights and obligations of Employee under this Agreement may
not be assigned or delegated without the prior written consent of the Company.
(h) CHOICE OF LAW. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits
hereto shall be governed by the internal law, and not the law of conflicts, of
the State of Florida.
(i) REMEDIES. Each of the parties to this Agreement shall be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorneys fees) caused by any breach of
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that Employee's breach of any
term or provision of this Agreement shall materially and irreparably harm the
Company, that money damages shall accordingly not be an adequate remedy for any
breach of the provisions of this Agreement by Employee and that the Company in
its sole discretion and in addition to any other remedies it may have at law or
in equity may apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
(j) AMENDMENT AND WAIVER. The provisions of this Agreement
may be amended and waived only with the prior written consent of the Company and
Employee.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
XXXXXX XXXXXXX, INC.
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By: Art Xxxxxxx
Its: Vice President, Human Resources
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XXXXXX X. XXXXXXX
