OFFICEMAX INCORPORATED NONDISCLOSURE AND NONCOMPETITION AGREEMENT
Exhibit 99.4
THIS AGREEMENT is made as of this 13th day of September, 2007, by and between OfficeMax
Incorporated, a Delaware corporation (“OfficeMax”), which term includes any affiliates and
subsidiaries), and Xxx Xxxxxx (the “Employee”).
In consideration of the mutual covenants contained herein, including without limitation
OFFICEMAX’s employing Employee, OFFICEMAX providing Employee with OFFICEMAX’s confidential
information and trade secrets, OFFICEMAX providing training to Employee, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Confidential lnformation/Trade Secrets. OFFICEMAX shall provide Employee with
certain OFFICEMAX confidential information and trade secrets (“Confidential Information”).
Confidential lnformation includes, without limitation, the names, addresses, price lists,
purchasing histories and requirements of customers and potential customers; location, region, and
company financial reports, sales and service manuals and bulletins; cost information and patterns;
floor plans and drawings of facilities; marketing strategies; acquisition and expansion plans; and
other similar information. Confidential lnformation shall also include, without limitation, all
letters, memoranda, notes, tables, spreadsheets, and other similar documents, whether in hard-copy
or electronic form, created or generated by or on behalf of Employee using the information, or any
part thereof, described in the previous sentence. Employee recognizes that such information is the
confidential information and trade secrets of OFFICEMAX, and agrees not to divulge such information
to any person, firm, or institution except as such disclosure is a necessary part of a bona fide
merchandise sale negotiation with an actual or potential OFFICEMAX customer. Further, upon
termination of employment with OFFICEMAX, Employee will continue to treat Confidential lnformation
as private and privileged, and will not, either for Employee’s own purposes or as an employee of or
for the benefit of any other entity or person, use such information or disclose it to any person,
firm, or institution.
2. Return of Propertv. On termination of Employee’s employment with OFFICEMAX,
Employee will immediately surrender to OFFICEMAX, in good condition, all Confidential Information,
as well as all letters, notes, memoranda, program design specifications, and all other similar
items which relate to customers or potential customers of OFFICEMAX that Employee obtained from
OFFICEMAX files or databases, are supplied to Employee by OFFICEMAX, or generated by Employee from
OFFICEMAX data and that are in Employee’s possession, custody, or control wherever located
including all reproductions or copies of such materials, whether in hard-copy or electronic form.
3. Noncompetition. In exchange for OFFICEMAX’s employment of Employee, and its
agreement to provide Employee Confidential lnformation and training, for a period of 12 months
after termination of Employee’s employment with
OFFICEMAX, whether such termination is voluntary or involuntary (or for a period of 12 months
after a final judgment or injunction enforcing this covenant), Employee agrees not to, directly as
an employee or indirectly as a consultant or contractor, without the prior written consent of
OFFICEMAX, be employed in the same or similar capacity as Employee was employed by OFFICEMAX, by
another business entity or person engaged in the sale or distribution of office supplies, office
furniture, computer consumables or related office products or services, in the Territory (as
defined below). For purposes hereof, the Territory shall be all of North America.
In agreeing to this restriction, Employee specifically acknowledges the substantial value to
OFFICEMAX of Confidential lnformation and Employee’s intimate knowledge of OFFICEMAX’s business and
agrees that such constitutes goodwill and a protectable interest of OFFICEMAX.
4. Non-Solicitation. In addition to the foregoing and not in limitation thereof, for
all periods beginning upon the date hereof and ending two years from the date of Employee’s
termination of employment with OFFICEMAX for whatever reason, Employee agrees that he/she shall not
directly or indirectly, for Employee’s benefit or on behalf of any other party (other than
OFFICEMAX):
(a) solicit or attempt to solicit any customer or supplier of OFFICEMAX for the purpose of
selling, distributing, purchasing or obtaining office supplies, office furniture, computer
consumables or related office products or services. For purposes hereof, a customer of OFFICEMAX
shall mean any person or business to whom OFFICEMAX sold or distributed office supplies, office
furniture, computer consumables or related office products and services during the last two years
Employee was employed by OFFICEMAX and a supplier of OFFICEMAX shall mean any person or business
from whom OFFICEMAX purchased or obtained office supplies, office furniture, computer consumables
or related office products and services during the last two years Employee was employed by
OFFICEMAX.
(b) solicit or discuss potential employment opportunities with any employee of OFFICEMAX
(other than for opportunities with OFFICEMAX) or induce or attempt to induce any employee of
OFFICEMAX to leave the employ of OFFICEMAX, or in any way interfere with the relationship between
OFFICEMAX and any employee thereof without the prior express written consent of OFFICEMAX.
(c) offer, hire or cause to be offered or hired any person who was employed by OFFICEMAX at
any time during the 12 months prior to the termination of Employee’s employment with OFFICEMAX.
(d) induce or attempt to induce any supplier, or other business relation of OFFICEMAX to cease
doing business with OFFICEMAX or in any way interfere with the relationship between any such
supplier or business relation and OFFICEMAX (including without limitation making any negative
statements or communications about OFFICEMAX).
5. Severability. In case any one or more of the terms contained in Section 3, or in
subsections (a), (b), (c), or (d) of Section 4 shall for any reason become invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability shall not affect any other terms
herein, but such terms shall be deemed deleted and such deletion shall not affect the validity of
the other terms of this Agreement. In addition, if any one or more of the terms contained in
Section 3, or in subsections (a), (b), (c), or (d) of Section 4 shall for any reason be held by a
court of competent jurisdiction to be excessively broad or unreasonable with regard to duration,
scope, or area, the terms shall be construed in a manner to enable it to be enforced to the maximum
extent permitted by applicable law, and any such court shall have the power to modify such term.
6. Enforcement. Employee understands that the breach of this Agreement will cause
immediate, irreparable, and immeasurable injury to OFFICEMAX, and therefore agrees that in addition
to any other rights OFFICEMAX has in order to enforce this Agreement, OFFICEMAX shall be entitled
to injunctive relief without bond or other security by any competent court to enjoin and restrain
the breach of this Agreement.
7. Employment-at-Will. Employee understands that his/her employment with OFFICEMAX is
at-will and that this Agreement does not affect Employee’s employment-at-will status. Employee
further acknowledges at any time and for any reason, Employee may resign his/her position or
OFFICEMAX may terminate Employee’s employment.
8. Assignment. This Agreement shall be freely assignable by OFFICEMAX.
9. Attorneys’ Fees. In the event OFFICEMAX utilizes the services of in-house or
outside attorneys for the purposes of enforcing any of the provisions of this Agreement, OFFICEMAX
shall be entitled to recover its attorneys’ fees, costs, and expenses of such enforcement efforts,
in addition to all damages and other remedies recoverable by OFFICEMAX.
10. Survival. Any respective obligations of OFFICEMAX or Employee hereunder which by
their nature would continue beyond termination or resignation of Employee’s employment with
OFFICEMAX will survive such termination or resignation.
11. Modification. This Agreement may not be modified orally, but only by a writing
signed by the party against whom enforcement of any such modification is sought.
12. Inteqration. This Agreement expresses the entire agreement and understanding of
the parties and supersedes all prior, and contemporaneous oral, agreements, commitments, and
understandings pertaining to the subject matter hereof.
13. Waiver. The failure of either party to enforce at any time or for any period of
time any of the provisions of this Agreement will not be construed to be a waiver of
such provisions or of its right thereafter to enforce such provision and each and every
provision thereafter.
14. Governing Law. For enforcement purposes, this Agreement shall be governed and
construed according to the laws of the state in which the OFFICEMAX location to which Employee last
reported is located, without giving effect to any conflict of laws provisions.
EMPLOYEE HAS READ THIS AGREEMENT and signs it with the understanding that the terms contained
herein are a condition of Employee’s employment with OFFICEMAX and (1) control Employee’s use of
certain information and know-how during and after his employment with OFFICEMAX, (2) restrict
Employee’s employment opportunities upon termination of his employment with OFFICEMAX, and (3)
restrict Employee’s ability to solicit customers, employees and suppliers of OFFICEMAX.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| OFFICEMAX INCORPORATED | EMPLOYEE | |||||
By:
|
/s/ Matt Broad | /s/ Xxx Xxxxxx | ||||
Its:
|
EVP and GC | |||||
