CONFIDENTIALITY, NON-SOLICITATION AND
NON-COMPETITION AGREEMENT
This Confidentiality, Non-Solicitation, and Non-Competition Agreement
("Agreement") is made effective as of May 12, 2003 by and between XXXXXX X.
XXXXXXXXX ("Employee") and XXXXXXXX'X INTERNATIONAL, INC., a Delaware
Corporation ("Company") (collectively "the parties").
This Agreement is not an employment contract, and the employment
relationship between Company and Employee is and remains at all times at will in
all respects.
In consideration of the employment/continued employment of Employee by
Company as outlined in the parties' Memorandum of Understanding and in
consideration of the promises contained in this Agreement, the sufficiency and
adequacy of which consideration Employee hereby acknowledges and accepts,
Employee and Company agree as follows.
1. Non-Disclosure and Return of Confidential Information. Employee
acknowledges his position with Company is one of the highest trust and
confidence both by reason of his position and by reason of his access to and
contact with the trade secrets and confidential and proprietary business
information of Company. Both during Employee's employment with Company and
after the termination of Employee's employment with Company for any reason by
either Employee or Company, Employee agrees as follows:
a. He shall use his best efforts and exercise utmost diligence
to protect and safeguard the trade secrets and confidential and
proprietary information of Company, including but not limited to the
identity of its customers and suppliers, its arrangements with
customers and suppliers, and its technical and financial data, records,
compilations of information, processes, recipes, and specifications
relating to its customers, suppliers, products, and services;
b. He shall not disclose any of such trade secrets and
confidential and proprietary information, except as may be required in
the course of his employment with Company or by law; and
c. He shall not use, directly or indirectly, for his own benefit
or for the benefit of another, any of such trade secrets and
confidential and proprietary information.
All files, records, documents, drawings, specifications, memoranda, notes, or
other documents relating to the business of Company, whether prepared by
Employee or otherwise coming into his possession, shall be the exclusive
property of Company and shall be delivered to Company and not retained by
Employee upon termination of his employment for any reason whatsoever or at any
other time upon request of Company.
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2. Non-Solicitation Agreement.
a. Non-Solicitation of Employees. Employee agrees that during
Employee's employment with Company, and for a period of twelve (12)
months after termination of Employee's employment with Company for any
reason by either Employee or Company, Employee will not directly or
indirectly for himself or for any third party, except as otherwise
agreed to in writing by Company's Chief Executive Officer, employ or
hire any other person who is then employed by Company, or solicit,
induce, recruit, or cause any other person who is then employed by
Company to terminate his/her employment for the purpose of joining,
associating, or becoming employed with any business or activity that is
engaged in the casual dining restaurant industry or any other segment
of the restaurant industry in which Company may become involved after
the date hereof and prior to the date of any termination of Employee's
employment with Company for any reason by either Employee or Company.
b. Non-Solicitation of Customers. Employee agrees that during
Employee's employment with Company, and for a period of twelve (12)
months after termination of Employee's employment with Company for any
reason by either Employee or Company, Employee will not directly or
indirectly solicit, divert, or take away, or attempt to solicit,
divert, or take away, the business or patronage of any of the clients,
customers, or accounts, or prospective clients, customers, or accounts,
of Company.
3. Non-Competition Agreement
a. Restriction on Competition. Employee agrees that, during
Employee's employment with Company, and for two (2) years after
termination of Employee's employment with Company for any reason by
either Employee or Company, Employee will not compete with the business
of Company or its successors or assigns in any geographic area serviced
by Company. This agreement not to compete means, among other things,
Employee shall not, without the prior written consent of Company's
Chief Executive Officer, directly or indirectly, as an employee,
employer, consultant, agent, principal, partner, shareholder, corporate
officer, director, or through any other kind of ownership (other than
ownership of securities of publicly held corporations of which Employee
owns less than five percent 5% of any class of outstanding securities)
or in any other representative or individual capacity, engage in or
render any services to any business in North America engaged in the
casual dining restaurant industry or in any other segment of the
restaurant industry in which Company or any subsidiary of Company may
become involved after the date hereof and prior to the date of
termination of Employee's employment with Company for any reason by
either Employee or Company. For purposes of this Agreement, "casual
dining restaurant industry" consists of "sit down table service"
restaurants serving alcoholic beverages, with a per guest average guest
check within the United States of under $20.00 (adjusted upward each
year to recognize Company menu price increases).
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4. General Provisions.
a. Judicial Modification. Company and Employee specifically
acknowledge and agree that the foregoing covenants of Employee in
paragraphs 1-3 are reasonable in content and scope and are given by
Employee for adequate consideration. Company and Employee further
acknowledge and agree that, if any court of competent jurisdiction or
other appropriate authority shall disagree with the parties' foregoing
agreement as to reasonableness, then such court or other authority
shall reform or otherwise the foregoing covenants as reason dictates.
b. Equitable Relief. The restrictions contained in paragraphs
1-3 are necessary for the protection of the legitimate business
interests, goodwill, trade secrets, and confidential and proprietary
information of Company. Employee agrees any breach of paragraphs 1-3
will cause Company substantial and irrevocable damage. Employee
further agrees that, in addition to such other remedies that may
be available, including the recovery of damages from Employee, Company
shall have the right to injunctive relief to restrain or enjoin any
actual or threatened breach of the provisions of paragraphs 1-3,
without posting bond. If Company prevails in a legal proceeding to
remedy a breach or threatened breach of this Agreement, then Company
shall be entitled to receive reasonable attorney's fees, expert
witness fees, and out-of-pocket costs incurred in connection with such
proceeding, in addition to any other relief it may be granted.
c. Severability. The terms and provisions of this Agreement are
severable in whole or in part, and if any term or provision of this
Agreement is deemed invalid, illegal, or unenforceable by a court of
competent jurisdiction, the remaining terms and provisions shall remain
in full force and effect.
d. Assignment. This Agreement is personal and not assignable by
Employee. Company may assign this Agreement to any successor in
interest to the business, or part thereof, of Company.
e. Governing Law and Consent to Jurisdiction. This Agreement and
all disputes relating to Employee's employment with Company shall be
subject to, governed by, and construed in accordance with the laws of
the State of Kansas, irrespective of the fact that one or both of the
parties now is or may become a resident of a different state. Employee
hereby expressly submits and consents to the exclusive personal
jurisdiction and exclusive venue of the federal and state courts of
competent jurisdiction in the State of Kansas.
f. No Conflicting Agreements. Employee represents to Company (1)
there are no restrictions, agreements, or understandings whatsoever to
which employee is a party that would prevent or make unlawful his
execution or performance of this Agreement or his employment hereunder
and (2) Employee's execution of this Agreement and employment with
Company does not constitute a breach of any contract, agreement, or
understanding, oral or written, to which Employee is a party or by
which Employee is bound.
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g. Disclosure of Agreement. In the event Company has reason to
believe this Agreement has or may be breached, Employee acknowledges
and consents that this Agreement may be disclosed by Company, without
risk of liability, to a current or prospective employer of Employee or
other business entity.
h. Survival. The obligations contained in this Agreement survive
the termination, for whatever reason, of Employee's employment with
Company.
i. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter and
supersedes all prior agreements or understandings, if any, between the
parties with respect to the employment of Employee. This Agreement may
be modified or amended only by an agreement in writing signed by both
parties.
j. No Waiver. The failure of either party to insist on the
performance of any of the terms or conditions of this Agreement, or
failure to enforce any of the provisions of this Agreement, shall not
be construed as a waiver or a relinquishment of any such provision. Any
waiver or failure to enforce on any one occasion is effective only in
that instance, and the obligations of either party with respect of any
provision in this Agreement shall continue in full force and effect.
THE PARTIES ARE CAUTIONED THAT, BY COMPLETING AND EXECUTING THIS
AGREEMENT, LEGAL RIGHTS AND DUTIES ARE CREATED. THEY ARE ADVISED TO CONSULT
INDEPENDENT LEGAL COUNSEL AS TO ALL MATTERS CONTAINED IN THIS DOCUMENT.
Date: ______________________ /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Xxxxxxxx'x International, Inc.
Date: ______________________ By: /s/ Xxxxx Xxxx
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