THIS NON-COMPETITION AGREEMENT (this "Agreement") is made and entered
into as of this 14th day of November, 1994 between Display Information Systems
Company, Inc. a Pennsylvania corporation ("Company") and Xxxxxx X. XxXxxxx
("Employee").
This agreement is being entered into in consideration of the continuing
employment of Employee and certain other key employees of Company and in order
to protect the value of Company's assets for the benefit of Employee and
Company's other employees.
For and in consideration of the premises and the mutual promises and
agreements contained herein the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Agreements Regarding Company's Business.
(a) During or after the term of Employee's employment by Company and for three
(3) years thereafter, Employee agrees that Employee will not divulge to anyone
other than Company's officers, (or such other persons as such officers may
designate), or, except in the performance of Employee's duty to Company, make
any use of (i) any information or knowledge relating to the business of Company
on which Employee shall have worked or shall be working or otherwise have
knowledge; (ii) Company's business or that of any of Company's affiliates or
suppliers or (iii) any other business or technical information not generally
known by the public which is either confidential in nature or is not intended to
be disclosed to others and which Employee shall have obtained either 90 days
prior to, or during the Employee's employment by Company.
(b) During the term of Employees employment by Company and for two (2) years
thereafter, for whatever reason, Employee covenants and agrees that employee
will not, in any manner, directly or indirectly: (i) solicit, divert, take away
or interfere with any of the customers, trade, business, patronage, employees or
agents of Company; or (ii) or for the period of one year engage, indirectly,
either personally or as an employee, partner, associate partner, officer,
manager, agent, advisor, consultant, or otherwise, or by means of any corporate
or other entity or device, in any business which is competitive with the
business of Company.
(c) For the purpose hereof, a business will be deemed competitive with the
business of Company if it involves the furnishing of goods or services which are
competitive, as of the date of cessation of Employee's employment by Company,
with any business then being conducted by Company, or as to which Company has
formulated definitive plans to enter as of the date of the cessation of
Employee's employment by Company.
(d) All documents, agreements, records, software, notebooks, invoices,
statements, promotional materials and correspondence, including copies thereof,
relating to the business of Company, whether prepared by Company, Employee or
others ("Company Records"), whether presently existing or hereafter prepared,
are and will continue to be the property of Company. Upon the cessation of
Employees employment by Company, for whatever reason, all Company Records in
Employee's possession or under Employee's control will be immediately delivered
to Company.
(e) All of the covenants of Employee contained in this paragraph 1 shall be
construed as agreements independent of any other provision of this Agreement,
given for adequate and independent consideration, and the existence of any claim
or cause of action against Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Company of these
covenants.
(f) It is the intention of the parties to restrict the activities of the
Employee under this paragraph 1 only to extent the provisions hereof are legally
enforceable. The parties specifically covenant and agree that if any of the
provisions hereto under any set of circumstances, whether or not foreseeable by
the parties, are hereafter held to be invalid or unenforceable in their present
form and scope in any jurisdiction, the remaining provisions of this Agreement
shall continue to be given full force and effect, without regard to the invalid
portions of their unenforceability in such jurisdiction, and such holding shall
not affect the validity or enforceability of this Agreement in its entirety in
any other jurisdiction. Furthermore, if any of the provisions or covenants
contained in this paragraph 1 are held to be unenforceable in any jurisdiction
because of the duration or scope thereof, the parties agree that the court
making such determination shall have the power to reduce the duration and/or
scope of such provision or covenant and, in its reduced form, said provision or
covenant shall be enforceable; provided, however, that the determination of such
court shall not affect the enforceability of this paragraph 1 in its present
form and scope in any other jurisdiction.
(g) For purposes of this paragraph 1, reference to Company shall include any
corporation, partnership or other entity controlling, controlled by or under
common control with Company.
2. Notices. Any notice under this agreement shall be in writing and sent by
certified or registered mail, next business day courier delivery, telegram or
personal delivery addressed to the party to be notified at the address set forth
below. Notice shall be deemed received upon deposit in the mail or delivery to a
next business day courier or telegraph company in accordance with the terms
hereof, or if notice is given by personal delivery, then notice shall be deemed
received on the date of delivery,
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a) In the case of the Company, to:
Display Information Systems Company, Inc.
00000 Xxxxxxx Xxxx
Xx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
b) In the case of the Employee, to:
00000 Xxxxxxxxx Xxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
3. Waiver. The failure of the parties to insist upon strict
performance of any of the terms, conditions or provisions of this
Agreement shall not be construed as a waiver or relinquishment of
future compliance, and said terms, conditions and provisions shall
remain in full force and effect.
4. Amendment. This Agreement may be amended only by a written
agreement executed by all of the parties.
5. Governing Law. This agreement shall be governed by and
construed under the laws of the State of Missouri, notwithstanding
the place of execution hereof or the performance of any acts by
Employee or Company in any other jurisdiction.
6. Remedies. It is agreed that the breach of the term of this Agreement by
Employee will result in immediate and irreparable injury to Company which cannot
be adequately compensated for by the payment of damages. Company shall be
entitled to obtain relief from the effect of such breach by way of injunction
and specific performance, as well as any relief available under any and all
other available legal or equitable remedies, including the recovery of damages
suffered by Company by reason of such breach. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and in addition to every
other remedy by statute or otherwise. The election of any one or more remedies
by Company shall not constitute a waiver of the right to pursue other available
remedies, In the event it becomes necessary for Company to institute a suit at
law or in equity for the purpose of enforcing any of the provisions of this
Agreement, Company shall be entitled to recover from Employee, Company's
reasonable attorney's fees, plus court costs and expenses.
IN WITNESS WHEREOF, each party, or its duly authorized officer, if applicable,
has executed this Agreement as of the date first above written.
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ATTEST:
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------
Secretary Xxxxxxx Xxxxxxxxx,
President
"Company"
/s/ Xxxxxx X. XxXxxxx
----------------------------
Xxxxxx X. XxXxxxx
"Employee"
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