Noncompete and Nondisclosure Agreement
THIS
NONCOMPETE AND NONDISCLOSURE AGREEMENT ("Agreement") dated as of May 3, 2006
by
and between Freedom Financial Mortgage Corporation, a corporation with a
principal place of business at 000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 ("Employer"), and Xxxxxx X. Xxxx, an individual residing at 00000
Xxxx 0, Xxxxxxxxxxxx, XX 00000 ("Employee").
WITNESSETH:
WHEREAS,
pursuant to an employment agreement of even date herewith, the Employee will
be
employed by the Employer commencing May 3, 2006 in connection with certain
aspects of the development, implementation and/or marketing of certain products
for Employer; and
WHEREAS,
in connection with such employment, Employee may be given access to, generate,
or otherwise come into contact with certain proprietary and/or confidential
information of Employer or clients of Employer; and
WHEREAS,
Employee and Employer desire to prevent the dissemination, unauthorized
disclosure or misuse of such information;
NOW,
THEREFORE, the parties hereto mutually agree as follows:
1. Covenant
Not to Solicit:
During
the period commencing on the date hereof and ending three (3) years after the
termination of the Employee's employment by Employer for any reason, the
Employee shall not directly or indirectly induce or attempt to induce any of
the
employees of Employer to leave the employ of Employer, or solicit the business
of any client or customer of Employer or any consultant to Employer.
2. Covenant
Not to Compete:
During
the period commencing on the date hereof, the Employee shall not, except as
a
passive investor in less than five percent (5%) of the equity securities of
a
publicly held company, engage in, or own or control an interest in, or act
as
principal, director or officer of, or consultant to, any firm or corporation
(i)
engaged in a venture or business substantially similar to that of the Employer
or (ii) which is in direct or indirect competition with the Employer within
any
state in which the Employer now conducts, or conducts during the period of
employment of the Employee, its business.
3. Proprietary
Information:
(a) For
purposes of this Agreement, "Proprietary Information" shall mean any information
relating to the business of Employer that has not previously been publicly
released by duly authorized representatives of Employer and shall include (but
shall not be limited to) information encompassed in all proposals, marketing
and
sales plans, financial information, costs, pricing information, computer
programs (including source code, object code, algorithms and models), customer
information, customer lists, and all methods, concepts, know-how or ideas in
or
reasonably related to the business of Employer as well as confidential
information belonging to Employer's customers or clients. The Employee agrees
to
regard and preserve as confidential all Proprietary Information whether Employee
has such Proprietary Information in Employee's memory or in writing or other
physical form.
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(b)
The
Employee will not, without written authority from Employer to do so, directly
or
indirectly, use any Proprietary Information for Employee's benefit or purposes,
nor disclose any Proprietary Information to others, either during the term
of
Employee's employment by Employer or thereafter, except as required by the
conditions of Employee's employment by Employer. The Employee agrees not to
remove from the premises of Employer, except as an employee of Employer in
pursuit of the business of Employer, or except as specifically permitted in
writing by Employer, any document or object containing or reflecting any
Proprietary Information. The Employee recognizes that all such documents and
objects, whether developed by Employee or by someone else, are the sole and
exclusive property of Employer.
(c) All
Proprietary Information and all of the Employee's interest in trade secrets,
trademarks, computer programs, customer information, customer lists, employee
lists, products, procedure, copyrights and developments created or developed
by
Employee during the term of this agreement as a result of, or in connection
with, Employee's employment by Employer, shall be the sole and exclusive
property of Employer and shall be deemed work made for hire for purposes of
the
United States copyright laws. Without further compensation, but at Employer's
expense, forthwith upon request of the Employer, Employee shall execute any
and
all such assignments and other documents and take any and all such other action
as Employer may reasonably request in order to vest in Employer all of
Employee's right, title and interest in all of the aforesaid items, free and
clear of any and all liens, claims and encumbrances of any kind or nature
whatsoever.
4. Saving
Provision:
The
Employee expressly agrees that the covenants set forth in this Agreement are
being given to Employer in connection with the employment of the Employee by
Employer and that such covenants are intended to protect Employer against the
competition by the Employee, within the terms stated, to the fullest extent
deemed reasonable and permitted in law and equity. In the event that the
foregoing limitations upon the conduct of the Employee are beyond those
permitted by law, such limitations, both as to time and geographical area,
shall
be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
5. Injunctive
Relief:
The
Employee acknowledges that disclosure of any Confidential Information or breach
of any of the non-competitive covenants or agreements contained herein will
give
rise to irreparable injury to Employer or clients of Employer, inadequately
compensable in damages. Accordingly, Employer or, where appropriate a client
of
Employer, may seek and obtain injunctive relief against the breach or threatened
breach of the foregoing undertakings, in addition to any other legal remedies
which may be available. The Employee further acknowledges and agrees that in
the
event of the termination of employment with the Employer the Employee's
experience and capabilities are such that the Employee can obtain employment
in
business activities which are of a different or non-competing nature with his
or
her activities as an employee of Employer; and that the enforcement of a remedy
hereunder by way of injunction shall not prevent the Employee from earning
a
reasonable livelihood. The Employee further acknowledges and agrees that the
covenants contained herein are necessary for the protection of the Company's
legitimate business interests and are reasonable in scope and content, and
that
the Employee will, promptly upon the request of Employer at any time, cause
any
subsequent employer to execute and deliver to Employer a confidentiality and
non-disclosure agreement in substantially the form of Section 2 hereof and
otherwise satisfactory to Employer.
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6. Enforceability:
The
provisions of this Agreement shall be enforceable notwithstanding the existence
of any claim or cause of action of Employee against Employer whether predicated
on this Agreement or otherwise.
7. Term:
This
Agreement shall commence on the date hereof and shall terminate upon the
termination of the Employee's employment by the Employer for any reason,
provided
that the
provisions of Sections 1, 2, 3 and 4 hereof shall survive the termination of
this Agreement.
8. Governing
Law:
The
Agreement shall be construed in accordance with the laws of the State of
Indiana.
9. General:
This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof. This Agreement may be modified only by an instrument in writing
signed by both parties hereto. Any notice to be given under this Agreement
shall
be sufficient if it is in writing and is sent by certified or registered mail
to
Employee at his residence address as the same appears on the books and records
of Employer or to Employer at its principal office, attention of the President,
or otherwise as directed by Employer, from time to time. Non-compliance with
any
one paragraph of this agreement shall not have an effect on the validity of
any
other part of this Agreement. The provisions of this Agreement relating to
confidentiality or non-competition shall survive the termination of employment,
however caused.
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10. Designation
of Agent:
Employee
represents, warrants and covenants that he is subject to service of process
in
the State of Indiana and that he will remain so subject so long as this
Agreement is in effect. If for any reason any Employee should not be so subject,
Employee hereby designates and appoints, without power of revocation, the
Secretary of the State of Indiana as his agent upon whom may be served all
process, pleadings, notices or other papers which may be served upon him as
a
result of any of his obligations under this Agreement.
IN
WITNESS WHEREOF, the undersigned have set their hands.
Freedom
Financial Mortgage Corporation
By:
/s/
Xxxxx
X.
Xxxx, its Vice President
Employee
/s/
Xxxxxx
X.
Xxxx
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