Confidentiality and Non-Compete Agreement
Effective
July 14, 2008 Xxxxxxx X. Xxxxx (the “Executive”) will become President and Chief
Executive Officer of Nutrition 21, Inc., a New York corporation (the “Company”).
In
order
to induce the Company to enter into an employment agreement with Executive
of
even date herewith, and for other good and valuable consideration, Executive
hereby agrees in favor of the Company as follows:
1. Obligation
of Confidentiality.
1.1
“Confidential Information” means any information and data of a confidential
nature disclosed by the Company, or which is learned in connection with
employment by the Company, whether in oral, written, graphic, or
machine-readable form, but does not include any information which (a) at the
time of disclosure was part of the public domain; (b) after disclosure becomes
part of the public domain by publication or otherwise, except by breach of
this
agreement by Executive; or (c) at any time after the termination of the
Employment Period is disclosed to Executive by a third party not known to
Executive to be under any confidentiality obligation to the
Company.
1.2
The
Executive will hold the Company’s Confidential Information in strict confidence
and not to disclose such Confidential Information to any third parties nor
make
use of such Confidential Information for his own benefit or for the benefit
of
another, or for any use other than in the course of providing services for
the
Company
in the
course of employment. Upon the written request of Company or termination of
the
Executive’s relationship with the Company, for any reason whatsoever, the
Executive shall return to Company and/or destroy all Confidential Information,
and all copies thereof, properly belonging to Company, unless otherwise
instructed in writing by Company. In addition, upon request by the Company,
the
Executive shall promptly deliver a written certification affirming that
Executive has complied with this Section.
1.3
The
obligations of confidentiality set forth in this Section shall bind the
Executive during his employment and at all times thereafter.
2. Obligation
Not To Compete. During
the period beginning on the date of this Agreement and ending 12 months after
the termination of his employment for any reason or for no reason and whether
or
not for cause or for good reason, except on behalf of the Company, Executive
will not anywhere directly or indirectly (whether through his employer, family
members or other affiliated parties or otherwise) be employed or retained by,
provide financing for, or solicit, contract or offer to provide or sell or
purchase or otherwise deal in or with any product or service that is competitive
with the Company’s products or services or planned products or
services.
3. No-Hire.
Executive covenants that during the 12 month period after the termination of
his
employment for any reason or for no reason and whether or not for cause or
for
good reason, Executive will not directly or indirectly (whether through his
employer, family members or other affiliated parties or otherwise):
3.1
solicit or hire or retain any person who was an employee or consultant of the
Company at any time during the then preceding two years, or
3.2
encourage or solicit any person to leave the employ of the Company.
4. Intellectual
Property.
4.1
All
inventions, software, ideas, strategies, methods, trade secrets, and associated
documentation, whether or not patentable or copyrightable, made or conceived
solely or jointly by Executive’s during his employment by the Company, or after
his employment by the Company which relate in any manner to the actual or
anticipated business, including research and development, of the Company
(“Intellectual Property”), shall be the property of the Company. In addition,
Executive agrees:
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a.
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To
promptly and fully disclose in writing to the Company all such
Intellectual Property;
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b. To
cooperate with the Company in all reasonable ways to protect the Company's
rights therein, including the execution of papers deemed by the Company to
be
desirable or necessary to enable the Company to apply for, secure, and maintain
patent or copyright protection thereon in the United States and in foreign
countries;
4.2
To
the extent the Company’s ownership of the Intellectual Property is ever at
issue, Executive, on behalf of Executive and Executive’s heirs and successors in
interest, does hereby irrevocably assign, free of any liens or encumbrances,
all
his worldwide rights, title and interest in and to said Intellectual Property
to
the Company, including, without limitation, any and all copyrights and all
patents of said Intellectual Property, to have and to hold unto its successors
and assigns, and this Agreement shall be proper evidence thereof.
5. Remedies.
In the
event of breach or threatened breach by Executive of any provision of this
Agreement, the Company shall be entitled to apply for relief by temporary
restraining order, temporary injunction, or permanent injunction, without
requirement of posting a bond or any other security, and to all other relief
to
which it may be entitled, including any and all monetary damages which the
Company may incur as a result of said breach, violation or threatened breach
or
violation.
6. No
Offsets.
The
validity of this Agreement and the covenants thereunder shall in no way be
affected by any valid or invalid claims or causes of action that Executive
has
or will have against the Company for any matter or thing, including without
limitation, the termination by the Company of Executive’s employment without
cause, breach by the Company of any agreement with the Company or the failure
by
the Company to pay any amount to the Executive.
7. Miscellaneous.
7.1
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York and embodies all of the understandings and obligations between
the parties with respect to the subject matter hereof. This agreement supersedes
all prior agreements entered into by the parties with respect to the subject
matter hereof. In the event of any inconsistency between this Agreement and
any
other agreement with the Executive, this Agreement shall govern and be binding.
This Agreement shall not be changed, modified or amended except in a writing
signed by both parties.
7.2
This
Agreement is not an employment agreement and gives no right to Executive to
be
retained for any period or any duration, or any other rights.
7.3
To
the extent any provision of this Agreement is held to be unenforceable or
invalid, the remainder of the Agreement shall be remain in full force and effect
and the Agreement shall be interpreted to give effect to the such provision
to
the maximum extent permitted by law.
7.4
No
failure or delay (in whole or in part) on the part of either party hereto to
exercise any right or remedy hereunder will impair any such right or remedy,
operate as a waiver thereof, or affect any right or remedy hereunder. All rights
and remedies hereunder are cumulative and are not exclusive of any other rights
or remedies provided hereunder or by law.
7.5
Notice. Any
and
all notices or other communications required or permitted to be given under
any
of the provisions of this Agreement shall be in writing and shall be deemed
to
have been duly given when personally delivered or when forwarded for priority
delivery by Federal Express or other recognized courier, addressed, if to the
Company, to it at its then principal offices, attn: Chairman of the Board with
a
copy to the General Counsel, and, if to the Executive, to him at Xxxxxxx
X. Xxxxx, addressed
to the Company’s then principal offices (or at such other address as any party
may specify by notice to all other parties given as aforesaid).
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7.6
Governing
Law; Resolution of Disputes; Service of Process. This Agreement shall in all
respects be construed according to the laws of the State of New York. Service
of
process shall be effective when given in the manner provided for under New
York
law. The
federal and state courts sitting in the State of New York shall have exclusive
jurisdiction with respect to this Agreement.
7.7
Executive acknowledges receipt of this Agreement, and that his ability to earn
a
livelihood will not be unreasonably affected hereby. He has discussed this
Agreement with his counsel.
7.8
This
Agreement may be signed by facsimile and in counterparts.
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By:
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/s/
Xxxx X. Xxxxxxxxx
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Executive
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/s/
Xxxxxxx X. Xxxxx
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Name:
Xxxx X. Xxxxxxxxx
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Name:
Xxxxxxx X. Xxxxx
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Title:
Chairman of the Board
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Date:
July 7, 2008
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Date:
July 2, 2008
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