Exhibit 10.12
REGIONAL MANAGER
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This Agreement made as of the 31 day of July, 1998, by and between The Xxxxxxxx
Group, Ltd. ("Company") and Xxxxxxx Xxxxxx ("Employee").
WHEREAS,
The Company has given the Employee the opportunity to make an equity
investment in the Company (the "Equity Opportunity"); and
Employee understands and agrees that he/she would not be entitled to
receive the Equity Opportunity unless Employee had elected to enter into this
Agreement; and
Employee represents that the Equity Opportunity is more than adequate
consideration for the promises made by Employee in this Agreement and intends
that the Company shall rely upon that representation in making the Equity
Opportunity available to Employee;
NOW THEREFORE, in consideration of the respective agreements of the parties
contained herein, and intending to be legally bound hereby, it is agreed as
follows:
1. Confidential Information
(a) During Employee's employment with the Company ("Employee's
employment"), Employee will receive and have access to confidential or
proprietary information about the Company ("Information") and its business,
including but not limited to information about pricing, costs, profits, sales,
marketing or business plans, budgets, forecasts, customer lists, customer
requirements, internally developed methods of customer solicitation, facts
relating to existing or prospective customers, arrangements with customers or
suppliers, possible acquisitions or divestitures, markets or market extensions,
personnel, know-how, processes, systems and procedures, methods of operation,
equipment, development plans, operating manuals, and other data not available to
the public, none of which is part of the general knowledge of the industry.
(b) During Employee's employment and following termination of
Employee's employment for any reason (including resignation by Employee or
termination, with or without cause, by the Company), Employee will not disclose,
use, or appropriate any Information for his/her own use or for the use of
others, directly or indirectly, except as required in the performance of
Employee's duties to the Company. Employee recognizes that any unauthorized
disclosure, use, or appropriation of the Information would be highly prejudicial
to the interests of the Company.
(c) In the event that Employee's employment with the Company
terminates for any reason (including resignation by Employee or termination,
with or without cause, by the Company), Employee shall deliver to the Company,
on or before Employee's last day of employment, all documentation, records and
materials in any form (including without
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limitation, all computer files) that in any way contain, incorporate, embody or
reflect any Information.
2. No Business Diversion. Employee will not for a period of two years
following the termination of Employee's employment with the Company for any
reason (including resignation by Employee or termination, with or without cause,
by Company), either directly or indirectly, contact, solicit, divert, call on,
take away or do business with, or attempt to contact, solicit, divert, call on,
take away or do business with, any past, present or prospective customer or
supplier of the Company.
3. No Employee Solicitation. During Employee's employment, and for a
period of two years following the termination of Employee's employment with the
Company for any reason (including resignation by Employee or termination, with
or without cause, by the Company), Employee will not, directly or indirectly,
solicit, employ, interfere with, attempt to entice away from the Company, or
recommend for employment outside the Company, any individual who either (a) is
employed by the Company at the time of such solicitation, employment,
interference, or enticement or (b) has been so employed within 12 months prior
to such solicitation, employment, interference or enticement.
4. Non-Competition
(a) During Employee's employment, and for a period of one year
following the termination of Employee's employment with the Company for any
reason (including resignation by Employee or termination, with or without cause,
by Company), Employee will not, directly or indirectly, own, manage, operate,
join, control, receive compensation or benefits from, or participate in the
ownership, management, operation, or control of, or be employed or be otherwise
connected in any manner with, any business which directly or indirectly Competes
(as defined in subparagraph 4(b)) with, in the Territory (as defined in
subparagraph 4(c)), the business of the Company as conducted or planned to be
conducted by the Company during Employee's employment.
(b) "Competes" as used in this Agreement means engages in, or plans
to engage in, the marketing or selling of any product or service of any person,
other than the Company, which competes with a product or service of the Company
(or a product or service which, to Employee's knowledge, was under development
by the Company during Employee's employment).
(c) "Territory" as used in this Agreement means (i) the geographic
area(s) contained within the states of Connecticut, New York and New Jersey and
(ii) any geographic area(s) in the United States for which Employee had
management responsibility during Employee's employment with the Company.
5. Affiliates. References in paragraphs 1-4 to the Company shall
include the Company, its subsidiaries, divisions, and affiliates.
6. Tolling. Employee agrees that in the event of a violation of any
of the
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provisions of paragraphs 2-4, the period during which Employee is prohibited
from committing the violation shall be extended by the length of time of the
violation.
7. Enforcement of Agreement
(a) Employee acknowledges and agrees that the restrictions
contained in this Agreement are necessary to protect the legitimate interests of
the Company, and impose no undue hardship on Employee. Employee further
acknowledges and agrees that the breach of any of the provisions of this
Agreement will result in irreparable injury to the Company, for which there is
no adequate remedy at law. Employee agrees that no alleged counterclaim, defense
or offset he/she may claim shall affect or impair the Company's rights to
injunctive relief under this Agreement.
(b) Employee consents to the issuance of any restraining order or
injunction which arises or results from, or relates to, directly or indirectly,
any violation of this Agreement. Additionally, the Company may proceed at law to
obtain such other relief as may be available. Employee agrees that, if the
Company prevails (in whole or in part) in any suit or proceeding under this
Agreement, Employee will pay the Company all of the Company's attorneys fees,
costs and expenses incurred in connection with such suit or proceeding or the
enforcement of Company's rights under this Agreement.
(c) This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania, without giving
effect to conflict of law principles.
8. Survival. This Agreement shall survive the termination of
Employee's employment for any reason unless the parties expressly agree in
writing to the contrary.
9. Reading and Understanding Agreement. Employee acknowledges that
Employee has carefully read this entire Agreement, understands it, and has had
the opportunity to consult with an attorney of Employee's choice before signing
this Agreement.
10. No Contract of Employment. This Agreement does not constitute a
contract of employment, nor does it impose on the Company any obligation to
retain Employee in its employ. To the contrary, Employee is an employee-at-will.
11. Reform of Agreement. No provision of this Agreement may be
amended, modified, supplemented, or waived unless agreed to in writing and
signed by a duly authorized officer of the Company and Employee. The failure to
exercise, or delay in exercising, any right, power or remedy under this
Agreement shall not impair or waive any right, power or remedy which the Company
has under this Agreement.
12. Severability or Reform by Court. In the event that any provision
of this Agreement is deemed by a court to be broader than permitted by
applicable law, then such provision shall be reformed so that it is enforceable
to the fullest extent permitted by applicable law. If any provision of this
Agreement shall be declared by a court to be invalid or
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unenforceable to any extent, the validity or enforceability of the remaining
provisions of this Agreement shall not be affected.
13. Entire Agreement: Assignment. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, between the parties with
respect to the subject matter hereof. The Company may assign this Agreement
without the consent of Employee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Employee has executed this
Agreement as of the day indicated below.
EMPLOYEE
Dated: 7/31/98 /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
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THE XXXXXXXX GROUP, LTD.
Dated: 7/31/98 By: /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
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Title: ASSISTANT TREASURER
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