CONFIDENTIALITY
AND NONCOMPETITION AGREEMENT
COMPANY,
it successors and assigns (“Corporation”), and EMPLOYEE (“Employee”) make the
following agreement:
1.
Effective
Date. This Agreement is effective as of November 1, 2007. Where necessary to carry out the intent of
this Agreement, specific obligations under this Agreement shall continue after
the date on which Employee may cease to be employed by Corporation.
2.
Proprietary
Information.
a.
Employee
acknowledges that during employment with Corporation Employee will come into
possession of trade secrets, proprietary and confidential information of
Corporation (all of which will be referred to in this Agreement as “proprietary
information”), specifically including, among other things, the identity of
clients and prospective clients of Corporation; client files and detailed
information concerning client needs and requirements; proposals designed to
meet client needs or requirements; product designs and specifications, market
surveys and forecasts; the identity of key vendors; the identity of key
employees; pricing, cost, and margin information; and other financial
information and records of Corporation.
Employee acknowledges that the foregoing types of proprietary information
are highly confidential to Corporation, are valuable, give a competitive
advantage to Corporation, and could not, without great expense and difficulty,
be obtained or duplicated by others who have not been able to acquire such
information by virtue of employment with Corporation.
b.
Employee understands
and agrees that Corporation’s proprietary information shall not be removed from
Corporation’s premises without the prior written consent of the President of
Corporation.
c.
Employee agrees
that, both during and after employment with Corporation, unless Employee first
obtains the prior written consent of the President of Corporation, Employee
shall not communicate or disclose, directly or indirectly, to any person or
firm, or use at any time, any of Corporation’s proprietary information, whether
or not such information was developed or obtained by Employee. However, Employee may, where authorized and
approved, use such information to further their employment duties with
Corporation. Employee shall retain all
such proprietary information in strict confidence for the sole benefit of
Corporation.
3.
Non-competition.
a.
In consideration
for employment, Employee agrees that, during the period of employment with
Corporation and for a period of three (3) years after employment with
Corporation terminates, whether such termination is voluntary or involuntary,
Employee shall not, directly or indirectly, either individually or on behalf of
another person or firm within a 50 mile radius of Company offices:
i.
engage, in any
state in which Corporation does business, in any business that is competitive
with that of Corporation (for purposes of this paragraph “any business” shall
specifically include without limitation self-employment, employment with any
other firm or entity, work as a consultant or independent contractor, or full
or partial ownership of or any equity or financial interest in any firm or
entity); or
ii.
call upon,
solicit, or sell or attempt to sell any products or services similar to or in
competition with those offered by Corporation to any person or firm that was a
customer of Corporation at any time during the Employee’s employment with
corporation or that was solicited by Corporation or otherwise had any contact
with Corporation during the six-month period preceding the termination of
Employee’s employment with Corporation.
b.
Both parties
agree that the restrictions in this Section are fair and reasonable in all
respects, including the length of time that they shall remain in effect, and
that Corporation’s employment of Employee, upon the terms and conditions of
this Agreement, is fully sufficient consideration for Employee’s obligations
under this Section.
c.
If any
provisions of this Section are ever held by a court to be unreasonable, the
parties agree that this Section shall be enforced to the extent it is deemed to
be reasonable.
4.
No
Interference with Employment Relationships (non-solicitation of
employees). Employee agrees that Employee will not, either before
or after termination of his/her employment with Corporation, encourage,
solicit, or otherwise attempt to persuade any other employee of Corporation to
leave the employ of Corporation.
5.
Return of
Proprietary Information. Upon termination of employment, Employee
shall return all records, documents, and other written, printed, photographic,
or physical materials of any type that belong to or pertain to Corporation,
including without limitation computer printouts, client lists or documents,
client files, sales manuals, drawings, plans, blueprints, specifications,
calculations, measurements and formulas of any type, billing information,
financial information, all such data stored on electronic equipment, and all
other documents relating to Corporation then in Employee’s possession or under
his/her control, and Employee shall not make or retain any copies or extracts,
including handwritten summations, of any such documents.
6.
Remedies. Employee
agrees that Corporation would be irreparably injured in its business and would
not have an adequate remedy at law if Employee were to breach Sections 2, 3, 4
or 5 of this Agreement. If any such
breach or violation occurs, Corporation will be entitled to an injunction (a)
restraining Employee from disclosing or using any proprietary information of
Corporation, as described in Section 2, from rendering services in competition
with Corporation, as set forth in Section 3, or from soliciting or pirating
employees in violation of Section 4, and/or (b) requiring Employee to return to
Corporation proprietary information pursuant Section 6. However, it is agreed that Corporation’s
remedies in the event of any such breach or violation, would be cumulative and
that Corporation could seek damages and other equitable relief in addition to
injunctive relief. Employee also agrees
that if Corporation must pursue any legal action to enforce this Agreement,
Corporation is entitled to recover from Employee its actual attorney fees and
costs of litigation.
7.
Severability. Each
provision in this Agreement is separate.
Where necessary to effectuate the purpose of a particular provision, the
Agreement shall survive the termination of Employee’s employment with
Corporation. If any part of this
Agreement is held to be invalid or unenforceable, the remaining portions shall
remain in effect.
8.
Modification
and Consent. To be effective and binding upon Corporation, any
modification of this Agreement and any consent under it must be made in writing
and signed by the President of Corporation.
Employee understands that this policy permitting modification or consent
only by the President, in writing, may be changed only by resolution of
Corporation’s board of directors.
9.
Miscellaneous.
a.
Any notice under
this Agreement must be in writing and delivered personally or by registered
mail to the last known address of the recipient.
b.
This Agreement
contains the entire agreement of the parties, and any and all prior agreement,
representations, or promises are superseded by and/or merged into this
Agreement.
c.
This Agreement
shall be governed by the laws of STATE.
The parties agree that, should any litigation arise out of, in
connection with, or relating to this Agreement, such litigation will be
commenced only in the Circuit Court for COUNTY, STATE, or in the United States
District Court for the Western District of Michigan, provided such court has
subject matter jurisdiction. The parties
specifically agree, however, that either of these courts shall have personal
jurisdiction and venue over Employee.
d.
Although this
Agreement was drafted by Corporation, the parties agree that it accurately
reflects the intent and understanding of each party and should not be construed
against Corporation if there is any dispute over the meaning or intent of any
provision.
e.
By their
signatures below, the parties acknowledge that (i) they have had sufficient
opportunity to, and have, carefully read each provision of this Agreement, (ii)
they have had the opportunity, if they so choose, to review the Agreement with
legal counsel of their own choice, (iii) they understand each provision, (iv)
they are not under any duress, (v) they are not relying upon any
representations or promises that are not set forth in this Agreement, and (vi)
they are freely and voluntarily signing this Agreement and intend to be bound
by it as a solemn contractual undertaking.
Dated: ___________________ COMPANY
_______________________________
By:
Its:
I have read this Agreement
carefully, understand it, and intend to be bound by it.
Dated: ___________________ _______________________________
EMPLOYEE
