SUPPLEMENTAL CONFIDENTIALITY
AND PROPRIETARY INFORMATION AGREEMENT
WITH PROVISION FOR SEVERANCE BENEFIT
This Supplemental Confidentiality and Proprietary Information Agreement is
entered into between HydroChem Industrial Services, Inc., a Delaware
corporation, and its parent, subsidiaries, and related companies ("HydroChem")
and Xxxx Xxxx ("you") as of the 1st day of November, 2001.
In view of and in consideration of (i) your promotion to the position of
Vice President of Sales, Alliance and Marketing of HydroChem and in connection
with activities related thereto or in support thereof, (ii) your future access
to certain proprietary, confidential or trade secret information of HydroChem
through this new position, (iii) HydroChem's payment of salary and other
compensation to you, and (iv) HydroChem's obligations in this Agreement to
provide you with a severance benefit if your employment is terminated by
HydroChem without cause, HydroChem and you agree to each of the following:
1. Confidentiality. You agree to maintain in strict confidence, and agree not
to use or disclose except as authorized by HydroChem, any information of a
competitively sensitive or proprietary nature which you receive from HydroChem
or its clients or contractors in connection with your services hereunder.
HydroChem agrees to take reasonable steps to identify, and cause its clients and
contractors to identify, for your benefit such information, including by using
confidentiality notices in written material where appropriate. These
restrictions shall not be construed to apply to (1) information generally
available to the public, (2) information released by HydroChem or its clients or
contractors (as the case may be) generally without restriction, (3) information
independently developed or acquired by you without reliance in any way on other
protected information of HydroChem or its clients or contractors, or (4)
information approved by HydroChem or its clients or contractors (as the case may
be) for your use and disclosure without restriction. Notwithstanding the
foregoing restrictions, you may use and disclose any information to the extent
required by an order of any court or other governmental authority, but only
after HydroChem or its clients or contractors (as the case may be) have been so
notified and have had the opportunity, if possible, to obtain reasonable
protection for such information in connection with such disclosure.
2. Return of Materials. You must return to HydroChem and leave at its disposal
all materials involving any trade secrets or proprietary or confidential
information of HydroChem. Upon the request of HydroChem and, in any event, upon
termination of your employment, you will leave with HydroChem all memoranda,
notes, records, drawings, manuals, disks or other documents and media pertaining
to HydroChem's business (including all copies thereof). This section is intended
to apply to all materials made or compiled by you, as well as to all materials
furnished to you by anyone else in connection with your employment.
3. Ownership of Employee Developments.
3.1 Existing Proprietary Rights. The patents, patent applications,
copyrights, trade secrets, and trademarks listed on the attached Schedule A are
the only intangible interests and properties that you own, or have any claim in,
at the time of execution of this Agreement.
3.2 Ownership of Work Product. All copyrights, patents, trade secrets
or other intellectual property rights associated with any ideas, concepts,
techniques, inventions, processes or works of authorship developed or created by
you during the course of performing work for HydroChem or its clients
(collectively, the "Work Product") shall belong exclusively to HydroChem and
shall, to the extent possible, be considered a work for hire made by you for
HydroChem within the meaning of Title 17 of the United States Code. To the
extent the Work Product may not be considered a work for hire made by you for
HydroChem, you agree to assign, and automatically assign at the time of creation
of the Work Product, without any requirement of further consideration, any
right, title or interest you may have in such Work Product. Upon request of
HydroChem, you shall take such further actions, including execution and delivery
of instruments of conveyance, as may be appropriate to give full and proper
effect to such assignment.
4. Restrictions on Competition.
4.1 Factual Background. HydroChem expects to invest considerable time,
effort, and capital in enhancing the value and desirability of the skills of its
technical and other personnel employed by HydroChem in connection with its
Sales, Alliance and Marketing programs or activities related thereto or in
support thereof. Both this investment and your individual compensation reflect
HydroChem's expectation of receiving a considerable return from the exclusive
use of your services and know-how in the future, free from any danger that
HydroChem's competitors may attempt to induce you to leave HydroChem and
wrongfully gain the benefit of HydroChem's investment. The partial restraint set
forth in this section does not, and cannot, provide complete protection for
HydroChem's investment, development efforts, product strategy, and proprietary
information, but HydroChem believes that in combination with the other
provisions of this Agreement, it is the most fair and reasonable measure
permitted under applicable law to protect HydroChem's interests, giving due
regard to both your interests and the interests of HydroChem.
4.2 Avoidance of Conflict of Interest. While employed by HydroChem, you
will not engage in any other business activity that conflicts with your duties
to HydroChem. Under no circumstances will you work for any competitor or have
any financial interest in any competitor of HydroChem; provided, however, that
this Agreement does not prohibit investment of a reasonable part of your assets
in the stock or securities of any competitor whose stock or securities are
traded on a national exchange.
4.3 Covenant Not to Compete. You recognize that you may become familiar
with trade secrets or confidential or proprietary information of HydroChem
pertaining to HydroChem's chemical cleaning, hydroblasting, industrial
vacuuming, tank cleaning, mechanical or waste minimization businesses and that
you could cause grave harm to HydroChem if you worked for a competitor of
HydroChem anywhere in the United States of America in any of those fields.
Therefore,
AFTER THE TERMINATION OF YOUR EMPLOYMENT, YOU WILL NOT COMPETE WITH HYDROCHEM
FOR TWO YEARS BY ENGAGING IN CHEMICAL CLEANING, HYDROBLASTING, INDUSTRIAL
VACUUMING, TANK CLEANING, MECHANICAL OR WASTE MINIMIZATION BUSINESSES WITHIN THE
UNITED STATES OF AMERICA. YOU WILL REFRAIN FROM ACTUALLY PERFORMING OR DIRECTLY
MANAGING OR SUPERVISING SUCH ACTIVITIES, WHETHER AS PRINCIPAL, AGENT, EMPLOYEE,
CONSULTANT, CONTRACTOR OR CO-VENTURER.
This partial restraint shall apply only to the extent that, within the year
preceding the termination of your employment, you actually worked in or in
support of any of the areas specified above on behalf of HydroChem.
4.4 Noninterference with Personnel Relations. During your employment
with HydroChem and for a period of two years afterwards, you will not knowingly
solicit, entice, or persuade any other employees of HydroChem to leave the
services of HydroChem for any reason.
5. Specific Performance and Consent to Injunctive Relief. Irreparable harm
should be presumed if you breach any covenant in this Agreement. The faithful
observance of all covenants in this Agreement is an essential condition to your
employment, and HydroChem is depending upon absolute compliance. Damages would
probably be very difficult to ascertain if you breached any covenant in this
Agreement. This Agreement is intended to protect the proprietary rights of
HydroChem in many important ways. Even the threat of any misuse of the
technology of HydroChem would be extremely harmful, since that technology is
essential to the business of HydroChem. In light of these facts, you agree that
any court of competent jurisdiction should immediately enjoin any breach of this
Agreement upon the request of HydroChem, and you specifically release HydroChem
from the requirement of posting any bond in connection with temporary or
interlocutory injunctive relief, to the extent permitted by law.
6. Severance Benefit. If at any time, HydroChem terminates your employment
without cause, then subject to your compliance with this Agreement and
HydroChem's standard form Proprietary Information Agreement which you signed
previously or simultaneously herewith, HydroChem will pay to you severance
compensation equal to six months of your then current base compensation. Any
severance compensation would be payable in bi weekly installments as if your
employment had continued for the six month period after actual termination
thereof. For the purpose of this section 6, "cause" shall mean (a) the failure
by you to perform your duties in a manner satisfactory to HydroChem, (b) fraud,
misappropriation, embezzlement, or conviction of any felony, or (c) any act or
action involving moral turpitude or reflecting negatively on HydroChem.
7. Miscellaneous.
7.1 Related Parties. This Agreement shall inure to the benefit of, and
be binding upon, HydroChem and its subsidiaries and affiliates, together with
their successors and assigns, and you, together with your executor,
administrator, personal representative, heirs, and legatees.
7.2 Severability. The covenants in this Agreement shall be construed as
covenants independent of one another and as obligations distinct from any other
contract between you and HydroChem. Any claim that you may have against
HydroChem shall not constitute a defense to enforcement by HydroChem of this
Agreement.
7.3 Survival of Obligations. The covenants in this Agreement shall
survive termination of your employment, regardless of who causes the termination
and under what circumstances.
7.4 Choice of Law. This Agreement shall be governed by and enforced
under the laws of the State of Texas as they apply to a contract executed,
delivered and performed entirely in such state. Further, you consent to
jurisdiction and venue in Xxxxxx County, Texas in connection with any dispute
arising from this Agreement.
IN WITNESS WHEREOF, you have accepted and executed this Agreement under
seal as of the date first hereinabove set forth.
EMPLOYEE:
/s/ Xxxx Xxxx
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Xxxx Xxxx
Accepted:
HydroChem Industrial Services, Inc.
By /s/ B. Xxx Xxxxxx, Jr.
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B. Xxx Xxxxxx, Jr., Chairman
and Chief Executive Officer
SCHEDULE A
None
/s/ GGR
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Employee's Initials
