NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
Exhibit
10.2
THIS AGREEMENT is entered into between Xxxxx Industries, Inc. (the “Company”) and Xxxxx X.
Xxxxxxx (“Employee”), effective as of June 19, 2009. The Company, as used in this Agreement,
includes Xxxxx Industries, Inc., its successors and assignees, and any of their existing and future
subsidiaries in the United States and foreign countries.
In consideration of Employee’s employment with the Company under an Employment Agreement dated
of even date herewith (the “Employment Agreement”), and other valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Employee covenants and agrees as follows:
I. NON-DISCLOSURE. Employee covenants and agrees so long as this Agreement is in effect, and after
the termination of this Agreement, that:
A. Without the prior written consent of the Company, Employee shall not at any time, directly
or indirectly, use for Employee’s own benefit or purposes or for the benefit or purposes of any
other person, firm, partnership, association, corporation or business organization, or disclose to
any person, firm, partnership, association, corporation or business organization, any trade
secrets, information, data, know-how or knowledge (including, but not limited to, trade secrets,
information, data, know-how or knowledge relating to customers, clients, products, technical
services, business methods and techniques, print outs, reports, market development programs,
revenues, costs, pricing structures, management practices, manuals, contracts, documents, designs,
computer programs, computer operating systems, computer applications, software designs, inventions,
processes, plans or employees) belonging to, or relating to the affairs of the Company except where
required in good faith to transact the business of the Company.
B. Employee shall return to the Company, at its request, and in any event within three (3)
days after termination of Employee’s employment, in good condition, reasonable wear and tear
excepted, all documentation and records which are the property of the Company and any and all
copies thereof, including, but not limited to, all manuals, promotional and instructional
materials, and similar aids and equipment, all correspondence, customer lists, files, plans,
contracts, cost and pricing structures, accounting records, memoranda and reports as well as all of
the Company’s equipment and other property in Employee’s hands or under Employee’s control at the
time of the termination of Employee’s employment.
C. Employee shall keep in strict confidence all trade information, product data, technical
services, management practices, business and pricing methods and techniques, customer and prospect
lists, trade secrets and other confidential information concerning the Company’s business and the
Company’s methods of doing business.
II. NON-COMPETITION. Employee acknowledges that Employee will be dealing with confidential
information, trade secrets and business methods which are the Company’s property. Employee further
acknowledges that the training, materials, customer lists and other confidential information and
trade secrets, all provided to Employee by the Company, are of value to the Company and that it is
reasonable and necessary for the protection of the Company that the Employee not compete with the Company within the area and for the duration hereinafter set forth.
A. Accordingly, Employee covenants and agrees that Employee shall not, for the term hereof and
for a period of three (3) years following the termination of Employee’s employment with the Company
(the “Restricted Period”), for any reason directly or indirectly (which means acting alone, as a
sole proprietor, as a partner, employee or agent of a partnership; as an officer, director,
employee or shareholder or agent of any other corporation; or as a trustee, fiduciary, consultant,
independent contractor, agent or other representative) engage in any or all of the following
activities within the Restricted Area (as defined below):
1. Become employed or affiliated in any capacity with, perform services of any type
on behalf of, or enter into or engage in any business or other pursuit that competes
with and/or is similar to the Company’s business in any way; or
2. Promote the business of any person, firm, association, or corporation engaged in
a business which competes with and/or is similar in any way with the business of the
Company; or
3. Solicit, divert or take away or attempt to solicit, divert, or take away, any of
the Company’s customers, clients, accounts, sales and/or service representatives,
independent contractors or subcontractors, agents, suppliers or patronage; or
4. Attempt to seek or cause any of the Company’s customers, clients, accounts, sales
and/or service representatives, independent contractors or suppliers to refrain from
patronizing the Company; or
5. Knowingly employ or engage, or attempt to employ or engage, in any capacity, any
person employed by the Company, or any sales and/or service representative, or any
independent contractor or agent of the Company, who was an employee, representative,
contractor, or agent of the Company during the period of three (3) years prior to
Employee’s termination.
B. For purposes of this Agreement, the “Restricted Area” shall be anywhere in the world.
III. MISCELLANEOUS.
A. The existence of any claim or cause of action of the Employee against the Company shall not
constitute a defense to the enforcement by the Company of the above covenants or obligations.
Employee agrees that if Employee breaches any of the covenants or obligations set forth above, the
Restricted Period shall be suspended until such time as said violation shall cease. Employee
further agrees that if Employee breaches any of Employee’s covenants or obligations set forth
above, the Company shall have the right, in addition to other rights provided herein or any other
rights that it may have in law or equity, to seek and obtain from any court of competent
jurisdiction relief by way of injunction. Employee acknowledges and agrees that should Employee
breach any of Employee’s covenants and obligations above, the Company would suffer irreparable
damages and the Company would have no adequate remedy at law.
Employee further agrees that if the Company prevails in any legal proceeding to enforce this
Agreement, the Company shall be awarded, in addition to such other relief it may be granted,
attorneys’ fees and costs incurred in connection with such proceeding.
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B. Employee agrees that each of the above covenants are separate and distinct covenants,
independent of each other, and that the illegality or invalidity of any one or more of them or any
part of one or more of them shall not render the others illegal or invalid, and that if the
invalidity or unenforceability is due to the unreasonableness of the time or geographic area
covered by said covenants, said covenants shall nevertheless be enforced to the maximum extent
permitted by law and effective for such period of time and for such area as may be determined to be
reasonable by a court of competent jurisdiction.
C. If any portion of this Agreement shall be determined to be invalid or unenforceable, then
such determination shall not affect any other portion of this Agreement and such other portions
shall remain in full force and effect.
D. The term of this Agreement is co-extensive with the term of the Employment Agreement, as it
may, from time to time, be amended or otherwise extended; it being understood that Employee’s
post-employment obligations under this Agreement survive this Agreement.
E. Employee covenants and acknowledges that Employee executed this Agreement prior to the
commencement of employment with Company and that this Agreement is supported by good, valuable and
sufficient consideration.
F. For purposes of this Agreement, all communications provided for herein shall be in writing
and shall be deemed to have been duly given when hand delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
| (a) | If the notice is to the Company: | ||
| Xxxxx Industries, Inc. 0000 Xxxxx Xxxx Xxxxxx Xxxxx, XX 00000 Attn: President and Chief Executive Officer |
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| With a copy to: | |||
| Xxxxxxx Xxxxxxxxxxx Xxxxxx & Aronoff LLP 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, Xxxx 00000 Attn: Xxxxx X. Xxxxxxx |
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| (b) | If the notice is to the Executive: | ||
| Xx. Xxxxx X. Xxxxxxx 0000 Xxxxxxxx Xxxx Xxxxxxxxxx, Xxxx 00000 |
or to such other address as either party may have furnished to the other in writing and in
accordance herewith; except that notices of change of address shall be effective only upon receipt.
G. This Agreement may not be modified or amended except by a written instrument signed by both
the Company and Employee. This Agreement shall inure to the benefit of the successors and assigns
of the Company and shall be binding upon Employee’s heirs, executors, administrators and
successors.
H. This Agreement and any dispute arising from or in relation to it shall be governed by and
construed in accordance with the laws of the State of Ohio. Venue of any action or dispute of any
kind arising from or relating to Employee’s employment with the Company is limited exclusively to
the courts of the State of Ohio. Employee acknowledges and agrees that this Agreement may be
assigned by the Company without Employee’s consent.
| XXXXX INDUSTRIES, INC. |
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| By: | /s/ Xxxx X. Xxx | |||
| Xxxx X. Xxx, President and | ||||
| Chief Executive Officer | ||||
| EMPLOYEE: |
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| /s/ Xxxxx X. Xxxxxxx | ||||
| Xxxxx X. Xxxxxxx | ||||
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