Exhibit 10M
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is entered into between Xxxxx Industries, Inc. (the
"Company") and Xxxxxx X. Xxxxxx, the undersigned Employee effective January 24,
2006. 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 January 24, 2006 ("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 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 services, in good
condition, reasonable wear and tear excepted, all documentation and records
which are the property of 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 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 Company's business and its methods of doing business.
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II. NON-COMPETITION.
A. 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 Company, are of value to the Company and that it is reasonable and
necessary for the protection of Company that the Employee not compete with
Company within the area and for the duration hereinafter set forth.
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 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 Company's customers, clients, accounts,
sales and/or service representatives, independent contractors or suppliers
to refrain from patronizing 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.
Notwithstanding anything to the contrary in this Agreement, in the event of
a "Change in Control" (as defined in the Employment Agreement), and the
Employee's employment with the Company is terminated for any reason, the
Restricted Period shall be reduced to eighteen (18) months from the date of the
termination.
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B. For purposes of this Agreement, the "Restricted Area" shall be defined
in relation to the geographic scope of activities carried on by Employee on the
Company's behalf during the term of Employee's employment. For example, if
Employee's duties are those of upper management and he or she directs, controls,
or influences activities on behalf of the Company which are nationwide in scope,
the Restricted Area shall be the United States of America and the territories
thereof. If, however, Employee is in middle management and his or her activities
relate to a specific geographic area such as a state of the United States or
other region of the country, then the Restricted Area shall be that state or
region. For inside or outside sales employees, the Restricted Area shall be
every state which includes any part of the sales territory or region for which
that salesperson has been responsible or partially responsible while in the
Company's employ. These examples are by no means all inclusive. They are set
forth as the most common examples of the Restricted Area intended to be covered
by this Agreement.
C. 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.
III. MISCELLANEOUS
A. The existence of any claim or cause of action of the Employee against
Company, shall not constitute a defense to the enforcement by 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.
B. 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.
C. 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.
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D. 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
With a copy to:
Xxxxx Industries, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxx, XX 00000
Attn: General Counsel
(b) If the notice is to the Executive:
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxx LLP
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, 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.
E. This Agreement may not be modified or amended except by a written
instrument signed by both 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.
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F. 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 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.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, President and
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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