EMPLOYER PROTECTION AGREEMENT
Exhibit 10.28
This Employer Protection Agreement (“Agreement”) is made by and between The Corporate
Executive Board Company (including any and all affiliates) (the “Company”) and the employee named
below (the “Employee”).
The Company is engaged in the business of providing research and advisory services to
individual members in various industries, including without limitation such services as
short-answer or custom research on demand, multiple client or syndicated studies, benchmarking data
and databases and conferences, seminars, training and education.
The Company has offered employment or continued employment to Employee. During the course of
employment, Employee will develop, at the Company’s expense, important relationships with members
and prospective members of the Company. Employee will also become aware of certain confidential
methods, practices, information and procedures with which the Company conducts its business and of
certain confidential information regarding the Company’s members and/or prospective members.
Employee may also prepare studies and other written materials using the Company’s resources.
NOW THEREFORE, in consideration of the recitals above, initial and/or continued employment and
other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the
parties agree as follows:
1. Non-Solicitation of Members and Prospective Members:
(a) During Employee’s employment, and for a period of one (1) year following the Company’s
termination of Employee’s employment for Cause or Employee’s voluntary resignation of employment,
Employee agrees that Employee shall not, directly or indirectly, on behalf of himself or any other
person or entity other than the Company, offer to provide or provide Company Services to any
Covered Person or induce or attempt to induce or otherwise counsel, advise, ask or encourage any
Covered Person to discontinue membership, elect not to renew membership, or elect not to commence
membership with the Company.
(b) For purposes of this Agreement, the following terms shall have the following meanings:
“Cause” shall mean the commission of an act of fraud, theft or dishonesty against the Company
or any of its members or prospective members and/or in the course of Employee’s duties for the
Company; conviction of or a plea of nolo contendere to any felony; conviction of or a plea of nolo
contendere to any misdemeanor involving moral turpitude which might, as determined by the Company
in its sole discretion, cause embarrassment to the Company; tardiness or absenteeism;
insubordination; violation of Company policy; or violation of any applicable laws, rules or
regulations in connection with or during performance of work for the Company.
“Company Services” shall mean the provision of decision support, business advice and
management support by (aa) providing short-answer or custom research on demand, including without
limitation literature or database searches, telephone interviews, or other research of the same or
substantially similar type as that provided by the Company; (bb) preparing published multiple
client or syndicated studies, without limitation studies of the same or substantially similar type
provided by the Company; (cc) selling benchmarking data and databases of the same or substantially
similar type provided by the Company; (dd) providing to a membership organization conferences,
seminars, training or education of the same or substantially similar type provided by the Company;
(ee) providing decision or implementation support and related analytical tools of the same or
substantially similar type provided by the Company; or (ff) providing any other services or
products that the Company was providing during Employee’s employment, or that Employee learned
during Employee’s employment that the Company planned to provide in the future.
“Covered Person” shall mean any person or entity (i) that was a member of the Company or was
solicited to be a member of the Company at any time during the lesser of the two-year period prior
to the termination of Employee’s employment with the Company, or the period of Employee’s
employment with the Company; and (ii) with which Employee had contact on behalf of the Company or
about which Employee learned confidential information in the course of Employee’s employment with
the Company.
“Non-Solicitation Period” shall mean the period of Employee’s employment and one (1) year
period following the
Company’s termination of Employee’s employment for Cause or Employee’s voluntary resignation
of employment.
(c) Employee agrees that the restrictions imposed upon Employee by the provisions of this
section are fair and reasonable, are reasonably required for the protection of the Company, and
will not unreasonably restrict Employee’s ability to work during the Non-Solicitation Period.
2. Non-Solicitation of Employees: During Employee’s employment, and for a period of
one (1) year following resignation or termination of such employment for any reason, Employee
agrees that Employee shall not, except in the course of Employee’s duties for the Company, directly
or indirectly, induce or attempt to induce or otherwise counsel, advise, ask or encourage any
person who is then a current employee of the Company and whom Employee worked with, supervised, or
learned confidential information about while employed by the Company to leave the employ of the
Company to accept employment with another employer that competes with the Company in the provision
of Company Services.
3. Confidential Information: During Employee’s employment, Employee will have access
to confidential information about the Company’s business that is not generally available to the
public, including, without limitation, research, designs, methods, pricing, financial information,
personnel information, marketing strategies, member profiles and the like. Employee hereby
acknowledges the Company’s exclusive ownership of such confidential information. Employee may also
have access to confidential information provided to the Company in confidence by its members,
vendors or other third parties. At all times during and after Employee’s employment, Employee
agrees to maintain the confidentiality of confidential information belonging to the Company, and/or
provided to the Company by its members, vendors or other third parties in confidence, and to use or
disclose such information only as authorized by the Company or required by law.
4. Return of Company Property: Upon demand of the Company or resignation or
termination of employment for any reason, whichever is sooner, Employee will deliver to the Company
all of its and/or its members’ or vendors’ property, as well as any other property provided to the
Company by third parties in confidence, including without limitation all studies, reports, disks,
membership data, membership lists, manuals, designs, recordings and any other medium by which,
through which or on which Company, member or vendor property or other property provided to the
Company by third parties in confidence has been recorded or stored.
5. Ownership of Intellectual Property: The Company will own (a) any inventions, trade
secrets, ideas, original works of authorship or confidential information that Employee conceives,
develops, discovers or makes in whole or in part during Employee’s employment by the Company that
relate to the Company’s business or the Company’s actual or demonstrably anticipated research or
development; and (b) any inventions, ideas, original works of authorship, trade secrets or other
confidential information that Employee conceives, develops, discovers or makes in whole or in part
during or after Employee’s employment that are made through the use of any of the Company’s time,
equipment, facilities, supplies, trade secrets or other confidential information, or which result
from any work Employee performs for the Company. To the maximum extent permitted under applicable
law, all of the foregoing shall be deemed to be “works made for hire” under the United States
Copyright Act, and the Company shall be deemed to be the author and owner thereof. To the extent
any of the foregoing is not deemed to be a work made for hire, Employee hereby irrevocably assigns
all copyrights, patent rights, and other proprietary rights therein to the Company, and no further
action by Employee is required to grant ownership to the Company. Employee will assist in
preparing and executing documents, and will take any other steps requested by the Company, to vest,
confirm or demonstrate its ownership rights, and Employee will not at any time contest the validity
of such rights.
6. No Breach of Other Agreements or Obligations: Employee will not knowingly use for
the benefit of or disclose to the Company any confidential information of any of Employee’s former
employers or of any other third party who has not authorized such use or disclosure and will not
otherwise knowingly infringe any proprietary right of any third party. Employee represents and
warrants that no contract or agreement between Employee and any third party will interfere in any
manner with Employee’s performance of Employee’s duties for the Company or with Employee’s
compliance with this Agreement.
7. Provision Invalidated: If any provision of this Agreement shall be determined, by
a court having jurisdiction, to be unenforceable, the remainder of this Agreement shall not be
affected but shall continue in full force and effect as though such unenforceable provision were
not originally a part of this Agreement, and the unenforceable provision shall be modified so as to
be enforceable to the maximum extent permitted by law. In the event that a court refuses to modify
any unenforceable provision, the parties agree to renegotiate the unenforceable provision in good
faith to accomplish its objective to the extent permitted by law.
8. Injunctive Relief: Employee acknowledges that a breach of any of the provisions of
this Agreement will result in continuing and irreparable damages to the Company for which there
would be no adequate remedy at law and that the Company, in addition to all other relief available
to it, shall be entitled to the issuance of injunctive relief restraining Employee from committing
or continuing to commit any breach of this Agreement.
9. Attorney’s Fees: In any action for breach of this Agreement, the prevailing party
shall be entitled to recover its reasonable attorney’s fees and costs.
10. Governing Law and Choice of Forum: During the period that the Company’s executive
offices are located in the District of Columbia, this Agreement shall be construed in accordance
with and governed by the laws of the District of Columbia, irrespective of the principles of
conflicts of law therein, and Employee and the Company agree to submit to the personal jurisdiction
of the District of Columbia courts and the federal courts located in the District of Columbia for
the resolution of any disputes arising under or relating in any way to this Agreement. At and
after such time as the Company’s principal executive offices are relocated to Rosslyn, Virginia,
this Agreement shall be construed in accordance with and governed by the laws of the Commonwealth
of Virginia, irrespective of the principles of conflicts of laws therein, and Employee and the
Company agree to submit to the personal jurisdiction of the state and federal courts in the
Commonwealth of Virginia for the resolution of any disputes arising under or relating in any way to
this Agreement.
11. Not a Contract of Employment: This Agreement does not constitute a contract of
employment for a definite period of time. Employee is an at-will employee of the Company. This
means that either Employee or the Company may terminate the employment relationship with or without
cause at any time with or without notice for any lawful reason or for no reason.
12. No Waiver of Breach and No Effect on Employee’s Other Obligations: The waiver by
any party of a breach of any provision herein shall not operate or be construed as a waiver of any
subsequent breach by any party. In addition, this Agreement does not relieve Employee of any
obligation imposed by law including, for example and without limitation, any statutory or common
law obligation to protect the Company’s trade secrets and to refrain from tortiously interfering
with the Company’s contractual relations.
13. Entire Agreement: This Agreement sets forth the entire agreement and
understanding between the parties with respect to the subject matter hereof and supersedes all
prior oral or written discussions, agreements or understandings with respect to the subject matter
hereof.
14. Survival of Agreement: The provisions of this Agreement shall survive the
termination of the employment relationship between the Company and Employee. This Agreement shall
be binding upon and shall inure to the benefit of the parties and their respective
successors and assigns. Notwithstanding the foregoing, Employee shall not assign Employee’s
obligations under this Agreement without the express written consent of the Company or its
successors and/or assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of this
day of
, 200_.
EMPLOYEE
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THE CORPORATE EXECUTIVE BOARD COMPANY | |||
