EXHIBIT 10(a)(1)
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
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THIS AGREEMENT, by and between Case Corporation (the "Corporation") and
_________________ (the "Employee") effective as of May 14, 1997 (the "Effective
Date"),
WITNESSETH THAT:
WHEREAS, the Corporation has granted the Employee certain awards under the
Case Corporation Equity Incentive Plan as of the Effective Date (the "Awards");
and
WHEREAS, the Awards are contingent on the execution of this Agreement;
NOW, THEREFORE, in consideration of the Awards, and for other good and
valuable consideration the receipt of which is hereby acknowledged, it is agreed
by the Employee and Corporation as follows:
1. Acknowledgment.
(a) The Employee acknowledges that the Corporation and its Affiliates
(defined below) are (i) primarily in the business of (a) the design,
manufacture, sale and distribution of certain agricultural equipment
(the "Agricultural Business"), (b) the design, manufacture, sale and
distribution of certain construction equipment (the "Construction
Business"), (c) supporting activities, consisting of the design,
manufacture, sale and distribution of replacement parts for
agricultural and construction equipment, the provision of financing
and related financial services to dealers of the Corporation, its
subsidiaries and affiliates, and their customers, for the acquisition
of new and used construction, agricultural and other equipment bearing
a Case or other brand name and the provision of market advice to
dealers of the Corporation (the "Supporting Activities"), and (ii) may
in the future engage in other lines of businesses, as each may be
described from time to time in filings with the Securities and
Exchange Commission or publications of general distribution of the
Corporation (collectively, the "Corporation's Business").
(b) The Employee further acknowledges that the Corporation and its
Affiliates conduct or have a reasonable expectation of conducting the
Agricultural Business, Construction Business and Supporting Activities
throughout the United States and internationally.
(c) The Employee further acknowledges that (i) his services to the
Corporation and its Affiliates are special and unique, (ii) the
covenants and agreements contained in paragraphs 2, 3 and 4 below are
essential to protect the Corporation's Business, and (iii) the
Corporation would not have made the Awards but for such covenants and
agreements by the Employee.
For purposes of this Agreement, the term "Affiliate" means any legal entity,
including, without limitation, any corporation, partnership, trust or other
legal entity, during any period in which it directly or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with the Corporation.
2. Confidential Information. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, or except to the extent
that the Employee has express authorization from the Corporation, the Employee
agrees to keep secret and confidential indefinitely all non-public information
concerning the Corporation or any Affiliate of the Corporation which was
acquired by or disclosed to the Employee during the course of his employment
with the Corporation or its Affiliates, including but not limited to customer
lists, price lists, customer services requirements, costs of providing
services, supplier information, and other data of or pertaining to the
Corporation or to any Affiliate of the Corporation which are not a matter of
public knowledge, and not to disclose the same, either directly or indirectly,
to any other person, firm or business entity or to use it in any way other than
in the good faith performance of his duties for the Corporation.
3. Nonsolicitation. While the Employee is employed by the Corporation and
its Affiliates and for a period of two years after the date of the Employee's
termination of employment with the Corporation and its Affiliates for any
reason, the Employee covenants and agrees that he will not, whether for himself
or for any other person, business, partnership, association, firm, company or
corporation, directly or indirectly, call upon, solicit, divert or take away or
attempt to solicit, divert or take away (i) any individual or entity which is or
has been a customer or potential customer (as defined below) of the Corporation
or its Affiliates at any time during the two year period preceding such call,
solicitation, diversion or take away or attempted solicitation, diversion or
take away, or (ii) any individual who has been during the preceding two years an
employee of the Corporation or its Affiliates. For purposes of this paragraph
3, a "potential customer" means any individual or entity from which the
Corporation or any Affiliate has actively solicited business or has targeted for
such solicitation.
4. Noncompetition. While the Employee is employed by the Corporation and
its Affiliates, and for a period of two years after the date of the Employee's
termination of employment with the Corporation and its Affiliates for any
reason, the Employee covenants and agrees that, without the prior written
consent of the Corporation, (a) he will not, directly or indirectly, engage in,
assist, perform services for, plan for, establish or open, or have any financial
interest other than ownership of 1% or less of the outstanding stock of any
corporation listed on the New York or American Stock Exchange or included in the
National Association of Securities Dealers Automated Quotation System in, any
person, firm, corporation, or other business entity (whether as an employee,
officer, director or consultant) that engages in or is controlled by, controls
or under common control with any business entity which engages in, any activity
in the United States or internationally which is the same as or competitive with
the Corporation's Agricultural Business or Construction Business, or (b) use the
knowledge or information obtained about the Corporation's Business during the
course of his employment with the Corporation or its Affiliates to compete with
or assist any business entity to compete with the Corporation's Business or any
other line of business for which, as of the date of the Employee's termination
of employment, the Corporation has made a corporate decision to undertake. The
Compensation Committee of the Board of Directors of the Corporation (the
"Committee") shall have the sole and exclusive right to give consent on behalf
of this Corporation under this paragraph 4 with respect to any activity or
arrangement that would otherwise be prohibited hereunder, which consent will not
be unreasonably withheld if the arrangement or activity otherwise prohibited by
this paragraph 4, relates to or involves only a nonmaterial competitor of the
Corporation (determined by taking into account the materiality of the competing
business to the Corporation and to the competitor and such other factors as may
be determined in the sole discretion of the Committee).
5. Remedies. The Employee acknowledges that the Corporation would be
irreparably injured by a violation of paragraph 2, 3 or 4, and he agrees that
the Corporation, in addition to any other remedies available to it for such
breach or threatened breach, shall be entitled to a preliminary injunction,
temporary restraining order or other equivalent relief, restraining Employee
from any actual or threatened breach of any such paragraph. If a bond is
required to be posted in order for the Corporation to secure an injunction or
other equitable remedy, the parties agree that the bond need not be more than a
nominal sum.
6. Severability and Entire Agreement. The invalidity or unenforceability
of any provision of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, and this Agreement will
be construed as if such invalid or unenforceable provision were omitted (but
only to the extent that such provision cannot be appropriately reformed or
modified). The Agreement is intended to be the entire agreement between the
parties regarding the subject matter hereof and shall supersede any prior
agreements to the contrary.
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7. Applicable Law. The provisions of this Agreement shall be construed
in accordance with the internal laws of the State of Delaware without
application of the conflict of laws provisions thereunder.
8. Successors. This Agreement shall be binding upon, and operate for the
benefit of, the Corporation and its successors and assigns.
9. Acknowledgment by Employee. The Employee acknowledges that he has read
this Agreement, understands the undertakings and restrictions it contains, and
intends to be fully bound by its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CASE CORPORATION EMPLOYEE
By ____________________________ By ______________________________
Xxxx X. Xxxxxx
Vice President
Date_____________________________
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