Exhibit 10.21
ALLMERICA FINANCIAL CORPORATION
AMENDED AND RESTATED FORM OF NON-SOLICITATION AGREEMENT
This Agreement is made this 4th day of April, 1997, between ALLMERICA
FINANCIAL CORPORATION, a Delaware corporation (hereinafter referred to
collectively with its subsidiaries, as the "Company"), and _______________
(the "Employee").
WHEREAS, Employee acknowledges that the Company could be significantly
harmed if the Employee solicits the Company's employees, agents, brokers, or
clients, or discloses any proprietary or confidential business information
of the Company.
NOW, THEREFORE, in consideration of the continued employment of the Employee
by the Company and the Employee being selected to be a participant in the
Company's Employment Continuity Plan and the receipt by the Employee of
restricted stock pursuant to the terms of a certain Restricted Stock
Agreement dated April 4, 1997, the Employee and the Company agree as
follows:
1. Non-Solicitation.
During the period that the Employee is employed by the Company and for a
period of two (2) years after the termination or expiration thereof, the
Employee will not directly or indirectly:
(a)recruit, solicit or induce, attempt to induce, or assist or encourage
a third party to solicit or recruit any employee(s), agent(s) or broker(s)
of the Company to terminate their employment with, or otherwise cease
their relationship with the Company; or
(b)solicit, divert or take away, attempt to divert or to take away, or
assist or encourage a third party to solicit or divert the business or
patronage of any of the policyholders, clients, customers or accounts of
the Company which were contacted, solicited or served while the Employee
was employed by the Company.
In addition, the restrictions set forth in this Section 1.(b) shall
apply to prospective clients, customers or accounts of the Company which
were contacted or solicited by the Employee or which the Employee has
specific knowledge that such prospective clients, customers, accounts were
solicited by the Company while the Employee was employed by the Company.
Any prospective client, customer or account, which does not, within a
one year period from the date of initial contact become a client,
customer or account of the Company, shall no longer be considered a
prospective client, customer or account of the Company, unless a new
contact or solicitation is instituted by the Employee or by the Company
with the Employee's knowledge.
2. Unenforceability.
(a) If any restriction set forth in Section 1 is found by any court of
competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to
which it may be enforceable.
(b) The restrictions contained in Section 1 are necessary for the
protection of the business and goodwill of the Company and are considered
by the Employee to be reasonable for such purpose. The Employee agrees that
any breach of Section 1 will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in addition to
such other remedies which may be available, the Company shall have the
right to seek specific performance and injunctive relief.
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3. Proprietary Information and Developments.
3.1 Proprietary Information.
(a) Employee agrees that all information and know-how, whether or not in
writing, of a private, secret or confidential nature concerning the
Company's products, servicers, customers or business or financial
affairs (collectively, "Proprietary Information") is and shall be the
exclusive property of the Company. By way of illustration, but not
limitation, Proprietary Information may include products, processes,
methods, techniques, projects, plans, research data, financial data,
personnel data, computer programs, and policyholders, client, agent,
broker and supplier lists. Employee will not disclose any Proprietary
Information to others outside the Company or use the same for any
unauthorized purposes without written approval by a vice president of
the Company, either during or after his/her employment, unless and until
such Proprietary Information has become public knowledge without fault by
the Employee.
(b) Employee agrees that all files, letters, memoranda, reports, records,
data or other written, photographic, or other tangible material
containing Proprietary Information, whether created by the Employee or
others, which shall come into his/her custody or possession, shall be and
are the exclusive property of the Company to be used by the Employee only
in the performance of his/her duties for the Company.
(c) Employee agrees that his/her obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs
(a) and (b) above, also extends to such types of information, know-how,
records and tangible property of clients of the Company or suppliers to
the Company or other third parties who may have disclosed or entrusted
the same to the Company or to the Employee in the course of the Company's
business.
3.2 Developments.
(a) Employee agrees that all inventions, improvements, discoveries,
methods, developments, software, and works of authorship, whether
patentable or not, which are created, made, conceived or reduced to
practice by the Employee or under his/her direction or jointly with others
during his/her employment by the Company, whether or not during normal
working hours or on the premises of the Company (all of which are
collectively referred to in this Agreement as "Developments") shall be
the sole property of the Company.
(b) Employee agrees to assign and does hereby assign to the Company (or
any person or entity designated by the Company) all his/her right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this
Section 3(b) shall not apply to Developments which do not relate to the
present or planned business of the Company and which are made and
conceived by the Employee not during normal working hours, not on the
Company's premises and not using the Company's tools, devices, equipment
or Proprietary Information.
(c) Employee agrees to cooperate fully with the Company, both during and
after his/her employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights and patents (both
in the United States and foreign countries) relating to Developments.
Employee shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal
assignments, assignment of priority rights, and powers of attorney, which
the Company may deem are reasonably necessary or desirable in order to
protect its rights and interests in any Development.
4. Other Agreements.
Employee hereby represents that he/she is not bound by the terms of any
agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in
the course of his/her employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous
employer or any other party. Employee further represents that his/her
performance of all the terms of this Agreement and as an employee of the
Company does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by him/her in confidence
or in trust prior to his/her employment with the Company.
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5. Notices.
All notices required or permitted under this Agreement shall be in writing
and shall be deemed effective upon personal delivery or upon deposit in the
United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party at the address shown below, or
at such other address or addresses as either party shall designate to the
other in accordance with this Section.
The Company: Allmerica
Financial Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Law Department
The Employee: Home Address as
reflected on Company records.
6. Pronouns.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns and pronouns shall include the plural, and vice
versa.
7. Entire Agreement.
This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral,
relating to the subject this of this Agreement.
8. Amendment.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
9. Employment Continuity Plan. The Employee's selection to be a participant
in the Company's Employment Continuity Plan (the "Plan") does not mean that
the Employee cannot be removed as a Participant in the Plan. Participation
in the Plan is in accordance with the Plan's provisions and as determined by
the Committee (as defined in the Plan). Removal as a Participant in the
Plan does not affect your obligations under this Agreement.
10. Governing Law.
This Agreement shall be construed, interpreted and enforced in accordance
with the laws of the Commonwealth of Massachusetts.
11. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any
corporation with which or into which the Company may be merged or which may
succeed to its assets or business, provided, however, that the obligations
of the Employee are personal and shall not be assigned by him.
12. Miscellaneous.
12.1 No delay or omission by the Company in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only
in that instance and shall not be construed as a bar or waiver of any
right on any other occasion.
12.2 The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or substance
of any section of this Agreement.
12.3 In case any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year set forth above.
ALLMERICA FINANCIAL CORPORATION
By:
Xxxxx X. Xxxxxxxx
Vice President
EMPLOYEE
Printed Name:
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