TRADE SECRET AND CONFIDENTIALITY AGREEMENT
1. Xxxxxxx Xxxxxxxx (hereinafter "Xx. Xxxxxxxx") hereby enters into this Trade
Secret and Confidentiality Agreement ("Agreement") with Xxxxxxxx
Merchandising Corporation dba Xxxxxxxxx Xxxxx (hereinafter "Company").
This Agreement sets forth the obligations of Xx. Xxxxxxxx concerning
Xx. Xxxxxxxx'x use of trade secrets and confidential information acquired
in the course of Xx. Xxxxxxxx'x employment with the Company. This
Agreement shall constitute Exhibit "A" to the Employment Agreement dated as
of October 1, 1996 between Xx. Xxxxxxxx and Company.
2. CONFIDENTIAL INFORMATION
a. The parties agree that, during the term of employment, Xx. Xxxxxxxx
will have access to and become acquainted with various trade secrets
and confidential information of Company and its affiliates, consisting
of documents, files, computer programs and databases, processes,
techniques, patterns, procedures, and related documentation,
compilations of information, records and specifications including but
not limited to:
i. BUSINESS INFORMATION, such as (but not limited to) the Company's
and its affiliates' present and future business practices, or
techniques, patent information and applications, leases,
contracts, and business plans; and
ii. FINANCIAL INFORMATION, such as (but not limited to) the Company's
and its affiliates' earnings, sales, assets, debts, prices,
pricing structure, margins, volume/quantities of purchases or
sales, or other financial data; and
iii. SUPPLY INFORMATION, such as (but not limited to) confidential
information relating to reliable or key supplier's and/or
vendor's names or addresses including contact persons, terms of
supply and/or vendor contracts or particular transactions,
potential suppliers and/or vendors, or other related data that is
not publicly available to other persons who may be engaged in the
same business as the Company; and MARKETING INFORMATION, such as
(but not limited to) prior, ongoing or proposed marketing
programs, presentations or agreements by or on behalf of the
Company and its affiliates, pricing information, customer bonus
programs, prior or existing contracts terms, marketing tests
and/or results of marketing efforts; and
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iv. PERSONNEL INFORMATION, such as (but not limited to) employees'
personal or medical histories, compensation, employee incentive
programs or other terms of employment, actual or proposed
promotions, hirings, resignations, terminations or reasons
therefor, training methods, or other personnel information; and
v. CUSTOMER INFORMATION, such as (but not limited to) past, existing
or prospective customers' names, addresses or backgrounds,
customer specifications and requirements, volumes of purchase,
prices that particular or various customers are charged or pay
for services, proposals or agreements between customers and the
Company or its affiliates, status of customers' accounts, or
other information about actual or prospective customers; and
vi. CUSTOMER TRADE SECRETS, such as (but not limited to) proprietary
information of the Company's or its affiliates' customers
provided to the Company or its affiliates for the sole and
exclusive purpose of permitting the Company or its affiliates to
market or provide products or services to such customers or
prospective customers.
For purposes of this Agreement, the trade secrets and confidential
information referred to in this Paragraph 2 hereafter shall be collectively
referred to as "Confidential Information."
b. PRIOR EMPLOYMENT. Xx. Xxxxxxxx acknowledges and understands that if
Xx. Xxxxxxxx obtained any proprietary knowledge, inventions, or other
trade secret information from a former employer, Xx. Xxxxxxxx is
prohibited from using such trade secret information during the course
and scope of Xx. Xxxxxxxx'x employment unless: (i) Xx. Xxxxxxxx has
obtained written consent from the former employer to do so; and
(ii) Xx. Xxxxxxxx has fully disclosed such written consent to Company.
Xx. Xxxxxxxx further agrees that Xx. Xxxxxxxx shall indemnify the
Company against all claims for Xx. Xxxxxxxx'x use of any trade secret
information obtained from a former employer.
3. USE OF COMMON PROPERTY
a. Xx. Xxxxxxxx acknowledges that all files, records, information,
documents, computerized records (including customer profiles and
databases), drawings, specifications, formulae, equipment and similar
items relating to the business of Company, its affiliates and/or its
customers, whether or not prepared by Xx. Xxxxxxxx and whether or not
they constitute Confidential Information: (i) are and shall remain
the exclusive property of the Company or its affiliates; and (ii)
shall not be removed from the premises of the Company or any affiliate
thereof except to the extent such removal is temporary and for the
sole and exclusive purpose of
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permitting Xx. Xxxxxxxx to perform his duties under the Employment
Agreement, unless approved in writing by the Company.
b. All such books, information, records or documents mentioned in
Paragraph 3(a) above shall be immediately returned to Company by
Xx. Xxxxxxxx upon the Company's request or upon termination of
Xx. Xxxxxxxx'x employment relationship with Company.
4. MISAPPROPRIATION OF CONFIDENTIAL INFORMATION; UNFAIR COMPETITION
a. Xx. Xxxxxxxx acknowledges that any unauthorized possession,
communication, or use of Confidential Information would enable
Xx. Xxxxxxxx (or any third party to whom Xx. Xxxxxxxx might
disseminate the Confidential Information) to unfairly compete with the
Company or any affiliate thereof, by using the Confidential
Information to its/their advantage.
b. Xx. Xxxxxxxx covenants and agrees that Xx. Xxxxxxxx will keep all
Confidential Information absolutely confidential and divulge said
Confidential Information only to those other executives of the Company
or any affiliate thereof who absolutely require the information in
order to perform duties on behalf of the Company or any affiliate
thereof. Xx. Xxxxxxxx further promises and agrees that Xx. Xxxxxxxx
shall not misuse, misappropriate or disclose Confidential Information,
directly or indirectly, or use it in any way, either during the term
of employment or thereafter, except as required in connection with
Xx. Xxxxxxxx'x duties on behalf of the Company or any affiliate
thereof.
5. NON-COMPETITION
a. During the employment term, Xx. Xxxxxxxx shall not, directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in
any other individual or representative capacity, engage or participate
in any business that is in competition or related in any manner
whatsoever with the business of the Company or any affiliate thereof,
PROVIDED, HOWEVER, that the "beneficial ownership" by Xx. Xxxxxxxx,
either individually or as a member of a "group," as such terms are
used in Rule 13d of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of
not more than two percent (2%) of the voting stock of any
publicly-held corporation shall not be a violation of this Agreement.
This restriction includes engaging in any preparatory activities
respecting the commencement of any business competitive with or
related to the business of the Company or any affiliate thereof.
Xx. Xxxxxxxx must obtain the advance written approval of the Company
prior to engaging in such employment.
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b. During the employment term or upon termination of employment,
Xx. Xxxxxxxx agrees not to reveal or use Confidential Information.
Prior to accepting any employment after leaving the Employment of
Company, Xx. Xxxxxxxx shall, during the two (2) year period following
such termination of employment, inform any prospective or actual
subsequent employer of the requirements imposed upon him under this
Agreement.
6. NON-SOLICITATION
During employment, and for a period of two (2) years following
termination of employment with Company, Xx. Xxxxxxxx covenants and agrees
that Xx. Xxxxxxxx shall not induce, solicit or attempt to induce or solicit
any Company employee to discontinue working for Company or any affiliate
thereof, whether for the purpose of working for any competitor of Company or
any affiliate thereof or otherwise.
7. MISCELLANEOUS
a. Xx. Xxxxxxxx hereby acknowledges and agrees that any actual or
threatened violation of this Agreement will cause Company immediate
and irreparable harm which cannot be adequately remedied with monetary
damages alone. Accordingly, upon any actual or threatened violation
of this Agreement, Xx. Xxxxxxxx agrees that the Company or any
affiliate thereof shall be entitled to, and Xx. Xxxxxxxx hereby
consents to the immediate issuance of a temporary restraining order,
preliminary and/or permanent injunction, without bond, to prevent
Xx. Xxxxxxxx or any entity or person acting in concert with
Xx. Xxxxxxxx, from revealing or otherwise utilizing Confidential
Information. Such restraining order and/or injunction shall be in
addition to any other rights and/or remedies the Company or any
affiliate thereof may have.
b. This Agreement has been entered into in the State of California, and
it is expressly contemplated by the parties and agreed upon by them
that the interpretation and enforcement hereof shall be governed by
the substantive and procedural laws of the State of California.
c. In the event that any proceeding is commenced involving the
interpretation or enforcement of the provisions of this Agreement, the
party prevailing in such proceeding shall be entitled to recover its
reasonable costs and attorneys' fees.
d. The failure of the Company or any affiliate thereof to exercise any
right or remedy upon any breach or default with respect to any of the
terms of this Agreement, or delay by the Company or any affiliate
thereof in exercising any such right or remedy, shall not operate as a
waiver, and no waiver of any type or amendment of
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this agreement shall be binding upon the Company or any affiliate
thereof unless evidenced by a writing signed on behalf of the Company
or any affiliate thereof.
e. If the application of any provision of this Agreement, or any action,
subsection, subdivision, sentence, clause, phrase, word or portion of
this Agreement should be held invalid or unenforceable, the remaining
provisions thereof shall not be effected thereby, but shall continue
to be given full force and effect as if the part so held invalid or
unenforceable had not been included herein.
f. This instrument constitutes the entire Agreement of the parties hereto
with respect to its subject matter, and supersedes any other express
or implied oral and written agreements between the parties. Other
than as expressly set forth herein, the parties expressly acknowledge
that there are no other promises, terms, conditions, or
representations (verbal or written) regarding any matter covered by
this Agreement. This Agreement shall not be modified, extended or
supplemented in any manner, except by subsequent written contract
signed by both Xx. Xxxxxxxx and the Company.
8. The parties acknowledge that they have read and understood the terms and
conditions of this Agreement, and that they agree and intend to abide by
them.
Dated: October 7, 1996 XXXXXXXX MERCHANDISING CORPORATION
dba XXXXXXXXX XXXXX
By /s/ XXXX XXXX
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Dated: October 7, 1996 /s/ XXXXXXX XXXXXXXX
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Xx. Xxxxxxxx'x Signature
Xxxxxxx Xxxxxxxx
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Xx. Xxxxxxxx'x Name (Please Print)
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