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EXHIBIT 10.6(e)
Noncompetition, Nonsolicitation
and Confidentiality Agreement
In consideration for the agreement of Applied Graphics Technologies, Inc.,
("AGT") to employ Xxxxx Xxxxxxxx, Xx. ("Employee") as Chief Financial Officer,
Employee hereby agrees as follows:
1. In this Agreement, the term AGT includes Applied Graphics Technologies, Inc.,
as well as all of its parents, subsidiaries and affiliates, including, but not
limited to, U.S. News & World Report, Applied Printing Technologies, Inc., Daily
News and The Atlantic Monthly.
2. Employee acknowledges that he will be furnished, or may otherwise receive or
have access to, private information which relates to AGT's past, present or
anticipated customer lists or other compilations for marketing or development,
or which relates to administrative, management, financial, marketing, sales or
manufacturing activities of AGT and that such information is not easily
accessible from public sources. All such information, including any materials or
documents containing such information, shall be considered by AGT and Employee
as proprietary and confidential ("Proprietary Information").
3. Both during and forever after the term of this Agreement, Employee agrees to
preserve and protect the confidentiality of the Proprietary Information and all
physical forms thereof, whether disclosed to him before this Agreement is signed
or afterward. In addition, Employee shall not (i) disclose or disseminate the
Proprietary Information to any third party, including employees of AGT, without
a need to know, (ii) remove Proprietary Information from AGT's premises without
valid business purpose, or (iii) use Proprietary Information for his own benefit
or for the benefit of any third party.
4. Employee acknowledges and agrees that all Proprietary Information used or
generated during the course of working for AGT is the property of AGT. Employee
agrees to deliver to AGT all documents and other tangibles (including diskettes
and other storage media) containing Proprietary Information, including all
copies of such documents or tangibles, immediately upon notice of the
termination of his employment with AGT.
5. While working for AGT and for one year following termination of his
employment from AGT for any reason, Employee will not attempt, either directly
or indirectly, to solicit, induce, entice or attempt to influence any employee
of AGT to leave AGT's employ or directly or indirectly hire or cause any other
entity to hire any person who has been an AGT employee in the 12 months
preceding the contact.
6. Noncompetition
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a. Employee acknowledges that his agreement to forego competition with AGT was a
material inducement to AGT to employ him. Employee also acknowledges that he
will acquire much Proprietary Information concerning AGT's financial status,
current and future marketing and advertising strategies, pricing, and other
confidential information as the result of his employment and that such
information is not easily accessible from other sources. Employee further
acknowledges that the businesses in which AGT engages, including but not limited
to pre-press and digital archiving are very competitive; that competition by him
those businesses during his employment, or after his employment terminates,
would severely injure AGT; and that his agreements herein are demonstrably
necessary to protect those legitimate interests.
b. During the term of his employment with AGT, Employee (i) will devote all his
professional and business time and effort to and give undivided loyalty to AGT
and (ii) will not engage in any way whatsoever, directly or indirectly, in any
business that is competitive with AGT, nor directly or indirectly solicit or in
any other manner work for or assist any business which is competitive with AGT.
c. During the term of this Agreement and for the term of any period for which
this Agreement is extended, (except, if this Agreement is terminated pursuant to
Paragraph 6b, more than six months before its expiration, then for a period of 6
months) Employee shall not, whether alone or in association with any other
person, directly or indirectly (i) engage in any business in the Specified Areas
that is competitive with any aspect of the business that is being conducted or
planned by AGT at the time Employee's employment with AGT terminates; or (ii)
have any interest or association (including, without limitation, as a
shareholder, partner, director, officer, employee, consultant, sales
representative, supplier, distributor, agent or lender) in or with any person
engaged in a business in the Specified Areas that Employee is prohibited from
engaging in pursuant to clause (i) above; provided however, that the foregoing
shall not prohibit Employee from owning securities of any publicly traded
company that is engaged in any such business as long as Employee does not own at
any time 5% or more of any class of the equity securities of such company.
For purposes of the foregoing, the "Specified Areas" means each state in which
AGT makes any sales or performs any services during the 12 month period
preceding the date on which Employee's employment with AGT terminates.
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d. If any provision of this Agreement is determined by a court to be overly
broad thereby making the provision unenforceable, Employee agrees that such
court shall substitute a reasonable, judicially enforceable limitation in place
of the invalid part of the provision and that as so modified the provision shall
be as fully enforceable as if set forth herein in the modified form. If it is
not possible to restate the provision in a valid or legal manner, then that
invalid or illegal portion shall be deemed not a part of the Agreement and the
remaining provisions shall remain in full force and effect.
7. Employee acknowledges and agrees that:
a. (i) his contractual obligations under paragraphs 3, 4, 5, and 6 have a unique
and very substantial value to AGT, (ii) he has sufficient assets and other
skills to provide a reasonable livelihood for himself while such paragraphs are
in force, and (iii) he is subject to immediate dismissal by AGT for any breach
of those provisions and that such dismissal shall not relieve him from his
continuing obligations under this Agreement or from the imposition by a court of
any judicial remedies, such as money damages or equitable enforcement of those
provisions.
b. the terms and provisions of this Agreement are applicable to all information
and materials developed for, received from or any advice provided to, AGT prior
to or after the signing of this Agreement; and
c. the termination of his employment with AGT for any reason, shall not relieve
him from complying with the undertakings and agreements contained herein, which
call for performance prior or subsequent to the termination date, including, but
not limited to those undertakings and agreements set forth in paragraphs 3, 4, 5
and 6.
d. in the event of his breach of any of the undertakings or agreements set forth
in paragraphs 3, 4, 5, and 6 of this Agreement, AGT shall have the right to
obtain an injunction or decree of specific performance from any court of
competent jurisdiction to restrain him from violating such undertakings or
agreements or to compel him to perform such undertakings or agreements. Nothing
herein contained shall in any way limit or exclude any and all other rights
granted by law or equity to AGT.
8. No act or failure to act by AGT will waive any right contained herein. Any
waiver by AGT must be in writing and signed by the Chairman of AGT to be
effective.
9. In the event that any provision of this Agreement conflicts with the law
under which this Agreement is to be construed or if any such provision is held
invalid by a court or other authority with jurisdiction over the parties to this
Agreement, such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance with applicable
law, and the remainder of this Agreement shall remain in full force and effect.
If it is not possible to restate the provision in a valid or legal manner, then
that invalid or illegal portion shall be deemed not a part of the Agreement and
the remaining provisions shall remain in full force and effect.
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10. This Agreement shall be construed according to its terms and not strictly
for or against either party.
11. This Agreement shall be governed by the laws of the State of New York
without regard to its conflicts of laws provisions.
12. All remedies provided herein are cumulative and in addition to all other
remedies which may be available at law or in equity.
13. This Agreement shall be binding on both parties successors, heirs and
assigns.
Employee: Applied Graphics Technologies, Inc.:
_________________________________________________
Louis Salamone, Xx.Xx: __________________________
Title: _________________________
_________________________________________________
Date
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