RESTRICTIVE COVENANT AGREEMENT (New Employee)
Exhibit
10.2
(New
Employee)
THIS
AGREEMENT is made and entered into by and between Xxxx X. Xxxxxxxxx (“Employee”)
and ZBB Energy Corporation (the “Company”).
In
consideration of the employment of Employee and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Employee and the Company hereby agree as follows:
1. Confidentiality
Obligations During and Post-Employment.
1.1 Trade Secrets. During
the term of Employee’s employment, Employee will not directly or indirectly use
or disclose any Trade Secret of the Company except in the interest and for the
benefit of the Company. After the end of Employee’s employment with the Company,
for whatever reason, Employee will not directly or indirectly use or disclose
any Trade Secret of the Company.
1.2 Confidential
Information. During the term of Employee’s employment, Employee will not
directly or indirectly use or disclose any Confidential Information of the
Company except in the interest and for the benefit of the Company. For
twenty-four (24) months following the end of
Employee’s employment with the Company, for whatever reason, Employee will not
directly or indirectly use or disclose any Confidential Information of the
Company.
2. Restrictions During
Employment. During the term of Employee’s employment with the Company,
Employee will not directly or indirectly compete against the Company, or
directly or indirectly divert or attempt to divert customers’ business from the
Company anywhere the Company does or is taking steps to do
business.
3. Post-Employment Non-Solicitation of
Restricted Customers. For twenty-four (24) months following
the end of Employee’s employment with the Company, for whatever reason, Employee
agrees not to directly or indirectly sell or attempt to sell to any Restricted
Customer any products or services of the type or substantially similar to the
type Employee sold, marketed or performed on behalf of the Company during the
twenty-four (24) months prior to the end of
Employee’s employment, for whatever reason, with the Company.
4. Post-Employment
Restricted Services Obligation. For twenty-four (24) months
following the end of Employee’s employment, for whatever reason, with the
Company, Employee agrees not to directly or indirectly provide Restricted
Services to any Competitor or advice or counsel concerning the provision of
Restricted Services, in the geographic areas
in which during the twelve (12) months preceding the end of Employee’s
employment, for whatever reason, with the Company, Employee provided substantial
services or assisted any Company employee or agent in the provision of
substantial services to or on behalf of the Company.
This
provision shall not be interpreted to preclude Employee from providing
non-Restricted Services to a Competitor.
5. Definitions.
5.1 Trade
Secret. The term “Trade Secret” shall have that meaning set
forth under applicable law. The term includes, but
is not limited to, all computer source, object, or other code created by or for
the Company.
5.2 Confidential
Information. The term “Confidential Information” means all
non-Trade Secret information of, about or related to the Company or provided to
the Company by its customers that is not known generally to the public or the
Company’s competitors. Examples of Confidential Information include the
following: (i) information about products under development, product
methodologies and specifications, research, development or business plans,
financial information, customer lists, information about orders from and
transactions with customers, sales and marketing strategies and plans, pricing
strategies, personnel information, and business records; (ii) information
that is marked or otherwise designated as confidential or proprietary by the
Company; and (iii) confidential information of customers.
5.3 Exclusions.
Notwithstanding the foregoing, the terms “Trade Secret” and “Confidential
Information” do not include, and the obligations set forth in this Agreement do
not apply to, any information that: (i) can be demonstrated by Employee to
have been known by Employee prior to Employee’s employment by the Company;
(ii) is or becomes generally available to the public through no act or
omission of Employee; (iii) is obtained by Employee in good faith from a
third party who discloses such information to Employee on a non-confidential
basis without violating any obligation of confidentiality or secrecy relating to
the information disclosed; (iv) is independently developed by Employee
outside the scope of Employee’s employment without use of Confidential
Information or Trade Secrets; or (v) is Employee’s personnel
information.
5.4 Restricted Customer.
The term “Restricted Customer” means any individual or entity (i) for
whom/which the Company has provided goods, products or services, or (ii) to whom/which
Employee provided goods, products or services on behalf of the Company, or about
whom/which Employee acquired non-public information in connection with
Employee’s employment by the Company during the twenty-four (24) months
preceding the end of Employee’s employment, for whatever reason, with the
Company.
5.5 Restricted Services.
The term “Restricted Services” means services of the kind Employee provided to
the Company during the twelve (12) months preceding the end of Employee’s
employment, for whatever reason, with the Company related to the zinc energy
storage industry and the goods, products or services sold or provided by the
Company.
5.6 Competitor. The term
“Competitor” means any business that provides or sells zinc energy storage
services or products substantially similar to those provided or sold by Employee
on behalf of the Company during the twelve (12) months preceding the end, for
whatever reason, of Employee’s employment with the Company.
5.7 Business Ideas. The
term “Business Ideas” means all ideas, designs, modifications, formulations,
specifications, concepts, know-how, trade secrets, discoveries, inventions,
data, software, developments, and copyrightable works, whether or not patentable
or registrable, that Employee originates or develops either alone or jointly
with others while Employee is employed by the Company, and that are
(i) related to any business known to Employee to be engaged in or
contemplated by the Company; (ii) originated or developed during Employee’s
working hours; or (iii) originated or developed, in whole or in part, using
materials, labor, facilities, or equipment furnished by the Company, or using
Confidential Information and/or Trade Secrets.
6. Return of Records and
Property. Upon the end of Employee’s employment with the
Company, for whatever reason, or upon request by the Company at any time,
Employee shall immediately return and/or disclose to the Company all passwords,
codes, documents, records, computer media, information and materials,
keys, access cards, computers, telephones, hand held devices, equipment,
supplies, items owned or leased by the Company and any other property belonging
and/or relating to the Company or its Customers and all copies of all such
materials and property. Upon the end, for whatever reason, of
Employee’s employment with the Company, or upon request by the Company at any
time, Employee further agrees to destroy such records maintained by Employee on
Employee’s own computer, hand held device and/or other equipment and to make
available to the Company such devices and equipment for inspection by the
Company or its agents, at reasonable times upon the Company’s request, to ensure
that adequate measures have been taken to destroy such records on such devices
and equipment.
7. Business
Idea Rights.
7.1 Assignment. The
Company will own, and Employee hereby assigns and agrees to assign to the
Company, all rights in all Business Ideas that Employee originates or develops
either alone or jointly with others while Employee is employed by the Company.
All Business Ideas that are or form the basis for copyrightable works are hereby
assigned to the Company and/or shall be assigned to the Company or shall be
considered “works for hire” as that term is defined by U.S. copyright
law.
7.2 Disclosure. While
employed by the Company, Employee will promptly disclose all Business Ideas to
the Company.
7.3 Execution of
Documentation. Employee, at any time during or within twenty-four (24)
months after the term of his employment with the Company for any reason, will
promptly execute all documents that the Company may reasonably require to
perfect its patent, copyright, and other rights to such Business Ideas
throughout the world.
8. Non-Solicitation of
Employees. During the term of Employee’s employment with the
Company and for twelve (12) months thereafter, Employee shall not directly or
indirectly encourage any Company employee to terminate his/her employment with
the Company or solicit such an individual for employment outside the Company in
a manner that would end or diminish that employee’s services to the
Company. However, this paragraph shall not prevent Employee from
being a reference for any Company employee, nor does it preclude Employee from
soliciting Company employees through general advertising that is not
specifically directed at Company employees.
9. Employee
Disclosures and Acknowledgments.
9.1 Confidential Information of
Others. Employee certifies that Employee has not, and will not, disclose
or use during Employee’s time as an employee of the Company, any confidential
information or trade secrets that Employee acquired as a result of any previous
employment or under a contractual obligation of confidentiality or secrecy
before Employee became an employee of the Company. All prior
obligations (written and oral), such as confidentiality agreements or covenants
restricting future employment or consulting that Employee has entered into that
restrict Employee’s ability to perform any services as an employee for the
Company, are listed below under the heading List of Prior
Obligations.
9.2 Scope of
Restrictions. Employee acknowledges and represents that the scope of the
restrictions contained in this Agreement are appropriate, necessary, and
reasonable, based on the specialized knowledge Employee will gain while employed
by the Company, for the protection of the Company’s business, goodwill, and
property rights. Employee further acknowledges that the restrictions
imposed will not prevent Employee from earning a living in the event of, and
after, the end of Employee’s employment with the Company, for whatever
reason.
9.3 Prospective
Employers. Employee agrees, during the term of any restriction contained
in this Agreement, to disclose this Agreement to any entity that offers
employment to Employee. Employee also agrees that the Company may send a copy of
this Agreement to, or otherwise make the provisions hereof known to, any of
Employee’s potential or future employers.
9.4 Exception. Employee
further acknowledges and agrees that nothing in this Agreement shall prevent
Employee, after the end of employment with the Company, from using general
skills and knowledge gained while employed by the Company.
10. Miscellaneous.
10.1 Binding Effect. This
Agreement binds Employee’s heirs, executors, administrators, legal
representatives and assigns and inures to the benefit of the Company and its
successors and assigns.
10.2 Entire Agreement; Amendment
or Waiver. This Agreement contains the entire understanding between the
parties with respect to the subject matter hereof, and shall supersede all prior
discussions, negotiations, correspondence, agreements and understandings,
whether oral or written, between the Company and Employee with respect to the
subject matter addressed in this Agreement. No provision of this Agreement may
be amended or waived other than in writing by the party against whom enforcement
of such amendment or waiver is sought.
10.3 Injunctive Relief.
The parties agree that damages will be an inadequate remedy for breaches of this
Agreement and in addition to damages and any other available relief, a court
shall be empowered to grant injunctive relief without the requirement of the
posting of a bond or other security.
10.4 Governing Law. This
Agreement shall be governed by and construed in accordance with the substantive
and procedural laws of the State of Wisconsin.
10.5 Consideration. Execution of this
Agreement is a condition of Employee’s employment with the Company, and Employee’s employment by the Company
constitutes the consideration for Employee’s undertakings
hereunder.
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10.6 Severability. The
obligations imposed by this Agreement are severable and should be construed
independently of each other. The invalidity of one provision shall
not affect the validity of any other provision.
10.7 Terminable-At-Will.
Nothing in this Agreement shall be construed to limit the right of either party
to terminate the employment relationship at any time with or without cause or
notice.
10.8 Third-Party
Beneficiaries. Any Company affiliates are third-party beneficiaries with
respect to Employee’s performance of Employee’s duties under this Agreement and
the undertakings and covenants contained in this Agreement, and the Company and
any of its affiliates, enjoying the benefits thereof, may enforce this Agreement
directly against Employee. The terms Trade Secret, Confidential Information, and
Business Ideas shall include materials and information of the Company’s
affiliates to which Employee has access.
10.9 Waiver of
Breach. The waiver by the Company of a breach of any provision
of this Agreement shall not be deemed a waiver of any subsequent
breach.
List of Prior
Obligations
__________________________________________
__________________________________________
__________________________________________
By: /s/
Xxxx X. Xxxxxxxxx
Xxxx
X. Xxxxxxxxx
ZBB
ENERGY CORPORATION
By: /s/
Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx
Title:
Interim Chief Executive Officer
Date:
January 7, 2010
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