October, 2005
NONCOMPETITION, NONSOLICITATION,
AND CONFIDENTIALITY AGREEMENT
THIS NONCOMPETITION, NONSOLICITATION, AND CONFIDENTIALITY AGREEMENT, dated
as of the 31st day of October, 2005, by and among Xxxx X. Xxxxxxx (the
"Executive"), and The Reader's Digest Association, Inc., a Delaware corporation
located at Pleasantville, New York ("Corporation "). References to Corporation
shall include affiliated companies of Corporation, where applicable.
WHEREAS, Executive has been offered the position of President and Chief
Executive Officer of Corporation, with enhanced compensation and benefits
arrangements, in accordance with the terms of a letter to Executive from
Corporation dated October 26, 2005 (the "Letter"); and
WHEREAS, the Letter expressly conditions same upon the execution of this
Agreement wherein Executive is agreeing to certain restrictions on his use of
confidential information and his activities both during and after employment
with Corporation as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Confidential Information. (a) During Executive's employment with
Corporation and at all times thereafter, Executive shall hold all Confidential
Information (as defined in Section 1(c) below) in confidence for the benefit of
Corporation, and shall not, without the prior written consent of Corporation or
as may otherwise be required by law or legal process (provided Corporation has
been given notice of and opportunity to challenge or limit the scope of
disclosure purportedly so required), communicate or divulge any of the
Confidential Information to anyone other than Corporation and those designated
by Corporation or to an attorney retained by Executive to provide legal advice
with respect to this Section 1 and who has agreed to keep such information
confidential. The foregoing shall not be considered to be violated by any
communications made by Executive to other employees or agents of Corporation in
the ordinary course of his employment with Corporation.
(b) All records, files, memoranda, reports, customer lists, plans,
documents and the like that Executive uses, prepares or comes into contact with
during the course of Executive's employment by Corporation, including any
reproductions thereof, shall remain the sole property of Corporation and shall
be turned over to Corporation upon Executive's termination of employment with
Corporation.
(c) "Confidential Information" means all information, knowledge or data
relating to Corporation and any of its affiliates and their respective
businesses which is obtained or possessed by Executive during the period in
which Executive is employed by Corporation that is not "public" as defined
below. Confidential Information includes, but is not limited to, know-how, trade
secrets, operating procedures, methods and programs, strategies and plans.
Information is "public" if it is known generally or available to the public or
is ascertainable from public sources, and/or relevant industry or published
information, provided that information shall not be deemed to be publicly
available merely because individual features or combinations thereof are
publicly available and provided further that the information cannot be available
as a result of Executive's breach of this Agreement.
2. Nonsolicitation. Executive agrees that during Executive's employment and
for the duration of the "Applicable Period" (as defined in Section 4 below),
Executive shall not, directly or indirectly, either on Executive's own behalf or
on behalf of any other person, firm, corporation or other entity, without the
prior written consent of the Compensation and Nominating Committee of the Board
of Directors of Corporation (which consent shall be in its sole discretion),
solicit, induce or hire (or identify for solicitation, inducement or hire) any
non-clerical employee of Corporation to be employed by or to perform services
for Executive or any such other person, firm, corporation or other entity.
3. Noncompetition. Executive agrees that during Executive's employment with
Corporation and for the duration of the Applicable Period, Executive shall not,
without the prior written consent of the Compensation and Nominating Committee
of the Board of Directors of Corporation (which consent shall be in its sole
discretion), become associated with any of the organizations and businesses
listed on Exhibit A anywhere within the United States or Canada. For purposes of
this Section 3, Executive shall be considered to have become associated with an
entity if Executive becomes directly or indirectly involved with such entity as
an owner, principal, employee, officer, director, independent contractor,
consultant, representative, stockholder, financial backer, agent, partner,
advisor, lender, or in any other individual or representative capacity.
Notwithstanding the foregoing, Executive shall not be considered to have become
associated with an entity solely by virtue of Executive making or retaining
investments in less than one percent of the equity of any entity if such equity
is listed on a national securities exchange or regularly traded in an
over-the-counter market.
4. Applicable Period. The "Applicable Period" shall mean:
(a) a period of twenty-four (24) months following the date of the
termination of Executive's employment with Corporation in the event of the
resignation or retirement by Executive, or in the event of a termination for
"Cause"(as "Cause" is defined in Section 4.5(b) of The Reader's Digest
Association, Inc. 2001 Income Continuation Plan for Senior Management (the
"ICP"));
(b) except as provided in paragraph 4(c) below, a period of twelve (12)
months following the date of the termination of Executive's employment with
Corporation in the event of a termination by Corporation without Cause (as
"Cause" is defined in Section 4.5(b) of the ICP); and
(c) no period following the date of termination of Executive's employment
with Corporation in the event of a termination under Section 4.1 or 4.2 of the
ICP; provided, however, that Executive shall remain subject to Section 5.6 of
the ICP.
5. Injunctive Relief. Executive acknowledges and agrees that because of the
nature of the business in which Corporation is engaged and because of the nature
of the Confidential Information to which Executive has access, it would be
impractical and excessively difficult to determine the actual damages of
Corporation in the event Executive breached any of the covenants of Sections 1
through 3 hereof, and remedies at law (such as monetary damages) for any breach
of Executive's obligations under Sections 1 through 3 hereof would be
inadequate. Executive therefore agrees that if Executive commits any breach of a
covenant under Sections 1 through 3 hereof or threatens to commit any such
breach, Corporation shall have the right (in addition to, and not in lieu of,
any other right or remedy that may be available to it) to apply for temporary
and permanent injunctive relief from a court of competent jurisdiction, without
posting any bond or other security and without the necessity of proof of actual
damage, and Executive shall not object to such application other than to
litigate whether such breach was in fact committed or threatened.
6. Reasons and Consideration for Covenants: Enforceability. (a) Executive
acknowledges that: the covenants set forth in this Agreement are necessary for
the protection of the business and goodwill of Corporation, because (among other
reasons) during his employment with Corporation, Executive has gained and will
gain special knowledge; the services he has rendered and will render to
Corporation are of a special, unique and extraordinary character; and, he has
had and will continue to have knowledge of and access to various Confidential
Information that belongs to Corporation. Executive further acknowledges that (i)
the covenants set forth in this Agreement are reasonable in light of the need to
protect Corporation against the harm that Executive could do to Corporation,
given all of the foregoing, and (ii) without limiting the generality of the
foregoing, the scope of the noncompetition covenant of Section 3 is reasonable.
Before entering into this Agreement, Executive has considered the limitations
that the covenants could impose on his ability to find other employment and has
determined that they would not cause undue hardship to him and his family.
(b) Executive acknowledges that the employment and financial arrangements
set forth in the Letter are adequate consideration for the covenants set forth
in this Agreement.
(c) With respect to any provision of this Agreement finally determined by a
court of competent jurisdiction to be unenforceable, Executive and Corporation
hereby agree that such court shall have jurisdiction to reform this Agreement or
any provision hereof so that it is enforceable to the maximum extent permitted
by law, and the parties agree to abide by such court's determination. If any of
the provisions of this Agreement are determined to be wholly or partially
unenforceable in any jurisdiction, such determination shall not be a bar to or
in any way diminish the right of Corporation to enforce any such covenant in any
other jurisdiction.
7. Notices. (a) Each notice or other communication (a "Notice") given by
any party to any other party in connection with this Agreement shall be in
writing, by facsimile, personal delivery, receipted delivery service, or
certified mail, return receipt requested, prepaid and properly addressed to the
recipient as shown in Section 7(b) below.
(b) Any Notice shall be effective on the date it is sent via facsimile, the
date it is delivered personally or by receipted delivery service, or three (3)
days after the date it is mailed, as applicable, to the following addresses:
If to Corporation: Chairman, Compensation and Nominating
Committee
The Reader's Digest Association, Inc.
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Copy to: General Counsel
The Reader's Digest Association, Inc.
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Executive: Xxxx X. Xxxxxxx
[address]
or such other address as any party may designate by Notice to the other parties
in accordance with this Section 7.
8. Effect on Other Arrangements. At such time as this Agreement becomes
effective, the Exhibit A attached to this Agreement shall apply to and supersede
the Exhibit A contained in (i) the letter agreement dated as of April 23, 2001
between Executive and Corporation, and (ii) the Terms and Conditions of each
prior equity-based award of any type made to Executive under the Corporation's
1994 and 2002 Key Employee Long Term Incentive Plans, in each case as if the
attached Exhibit A were incorporated in and attached to such documents. Such
letter agreement, such equity-based awards and the ICP shall otherwise remain in
effect in accordance with their respective terms.
9. Entire Agreement. This Agreement shall constitute the entire agreement
of the parties with respect to the subject matter hereof and shall supersede all
prior agreements with respect thereto.
10. Successors. This Agreement shall inure to the benefit of and be binding
upon Corporation and its successors and assigns. Corporation may assign this
Agreement to any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Corporation. As used in this Agreement, the terms "Corporation" shall
mean any successor thereto that assumes and agrees to perform this Agreement, by
operation of law or otherwise.
11. Miscellaneous. (a) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without reference to
principles of conflict of laws. Executive and Corporation hereby agree that the
state and federal courts located in the State of New York shall have exclusive
jurisdiction over adjudication of any dispute arising out of or in any way
relating to this Agreement, and consent to personal jurisdiction of such courts
and service of process in connection with any such dispute. This Agreement may
not be amended or modified except by a written agreement executed by the parties
hereto or their respective successors and legal representatives.
(b) Executive's or Corporation's failure to insist upon strict compliance
with any provision of, or to assert any right under, this Agreement shall not be
deemed to be a waiver of such provision or right or of any other provision of or
right under this Agreement.
(c) The invalidity or unenforceability of any provision, or portion of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision or portion of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
(d) The Section headings contained in this Agreement are for convenience
only and in no manner shall be construed as part of this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(f) This Agreement shall become effective at such time as it is signed by
both Executive and Corporation.
IN WITNESS WHEREOF, Executive has hereunto set his hand and Corporation has
caused this Agreement to be executed in its name and on its behalf, all as of
the day and year first above written.
XXXX X. XXXXXXX
/s/Xxxx X. Xxxxxxx
--------------------------
Signature
THE READER'S DIGEST ASSOCIATION, INC.
By /s/Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President, Global
Human Resources
