TRADE
SECRETS/RESTRICTIVE COVENANT
1.
(a) Definition. You acknowledge that certain,
knowledge and documents which may be, or now are used by the
Company in its possession or control, constitute "Trade
Secrets". "Trade Secrets" shall include, without limitation,
any information which is not generally known or readily
ascertainable which, (i) Is, or is designed to be used
in the business of the Company or results from its research or
development activities; (ii)
Is
private or proprietary in that it is not generally known or
available to the public; and/or
(iii)
Gives
you an opportunity to obtain an advantage over competitors who
do not know or use it;
(iv) Customer
lists, records or potential persons or entities which may become
customers of the Company.
(v) Any
information, including a compilation, program, method, technique
or process that you may derive. Independent economic value from
actual or potential.
(vi)
Information as defined in Florida
Statute 688.002 (4) (a) and (b).
TRADE SECRET may be expressly labeled by the Company as a
"Confidential Information" or it may be found in various forms
such as, but not necessarily limited to, the following:
customer lists, sources of supply, cost, records, sales and
production data, books of account, commission schedules, methods
of operation, formulas, concepts, drawings, specification or
software programs for products, suppliers, customers, actual or
potential.
You understand that the above list is intended to be
illustrative and that other trade secrets, which shall also be
held confidential, may currently exist or arise in the future.
In the event that you are in doubt as to whether certain
information is a trade secret, you shall treat that information
as confidential unless you are notified by the Company in
writing to the contrary.
A. Access to
Trade Secrets. By entering into this Agreement with the
Company, you acknowledge being given access to Trade Secrets as
above defined. You recognize that in the course of your
employment OR SERVICE CONTRACT, the evaluation of the business
opportunity presented you will obtain knowledge of such
documents and materials containing or consisting of Trade
Secrets. Further, you acknowledge that the Company has a
legitimate interest in protecting all Trade Secrets against all
unauthorized disclosure. You further recognize that all such
Trade Secrets owned by the Company shall be and remain the
property of the Company.
B.
Non-Disclosure.
You hereby agree not to disclose, directly or indirectly, during
or following the termination of this Agreement with the Company
whether terminated with or without cause, any Trade Secret
disclosed to, or obtained or learned by you in whole or in part
to any firm, person, corporation or other entity whatsoever
without the express written authorization of the Company to do
so. You further agree that, except as your evaluation
necessitates, you will not remove or cause or aid in the removal
from your immediate possession any of the following which is
related to the Trade Secrets disclosed:
(i) documents
or papers of any type, or
(ii) photographs
of any type, or
(iii)
computerized information of any
type.
You acknowledge that any methods, developments and/or
improvements ("Improvements") along the lines of business of
the Company which you make or conceive after this disclosure,
shall be and remain the exclusive property of the Company.
2. 2.
You acknowledge that in view of the confidential and secret
nature of the information contemplated to be disclosed to you
and the difficulty of separating your general business and
technical knowledge from the information learned due to the
disclosure of the Trade and Confidential Information disclosed
to you by the Company, you agree that for a period of one year
after the termination of employment OR SERVICE CONTRACT under
the terms of this Agreement regardless of cause either
voluntarily or involuntarily:
a.
You will not solicit, accept or
divert business from, or attempt to
Convert to other methods of using
the same or similar products or services provided by the Company
to any person or company or entity whatsoever that has been a
customer or potential customer of the Company for a period of
one (1) year in Dade or Broward County, Florida; or
b.
You will not directly or indirectly
solicit hire or encourage to leave a business relationship any
person associated with the Company or attempt to persuade or
induce any employee or vendor or distributor of the Company's
products or services to terminate or refrain from renewing or
extending employment, contractual obligation or business
relationship with the Company for a period of one (1) year from
the termination of your employment in Dade or Broward County,
Florida.
c.
You will not directly or indirectly
engage in any activity, whether as owner, shareholder, partner,
director, officer, representative, consultant, employee or
otherwise on behalf of any enterprise in competition with the
Company in providing the products or services the Company within
the geographic trading area of the Company of Dade and Broward
County, Florida for a period of one (1) year.
d.
You understand that if either the
area of restriction or the time period of one (1) year years
should be deemed too broad or unreasonable to be enforceable or
valid in any jurisdiction, then a time period and an area of
geographic restriction reasonable under the circumstances shall
be considered a valued restriction. However, not withstanding
the foregoing, you on the date of the execution of this
Agreement believe and agree that the restrictions as to
geographic area and time are reasonable under the circumstances.
12. INJUNCTIVE RELIEF. You acknowledge
that your obligations arbitrary, or against public policy
hereunder are of a special, unique and of extraordinary nature
concerning disclosure of confidential information which give
them a peculiar value, the misappropriation or threatened
misappropriation of which cannot be reasonably or adequately
compensated in damages and there is a great likelihood the
Company shall sustain irreparable harm if your duty of
non-disclosure of is breached or threatened to be breached. You
further acknowledge that any breach of or inducement to breach
your duty to maintain secrecy or any actual or threatened
misappropriation of a trade secret or confidential information
herein disclosed as defined by Florida Statute 688 will cause
the Company irreparable harm, injury and damage. The Company
therefore shall and you hereby agree and hereby consent that in
addition to any other remedies provided by law the Company shall
be entitled to the entry of a preliminary and permanent
injunction, without the necessity of posting any bond whatsoever
by a court of competent jurisdiction restraining you from
committing, threatening to commit or continuing to commit any
such violation of this Agreement and other appropriate equitable
relief for breach or anticipatory breach by you of any of the
provisions of this Agreement as said court so further
determines. This paragraph shall not be construed as a waiver
of any rights which the Company may have for damages or
otherwise.
A.
It is agreed by the parties hereto that if any portion of this
covenant not to compete is held to be unreasonable, arbitrary or
against public policy, the covenant herein shall be considered
divisible for both as to time and geographical area; and each
month of the specified period shall be deemed a separate period
of time so that the lessor period of time and/or geography shall
remain effective so long the same is not unreasonable,
arbitrary, or against public policy.
B. Employee hereby specifically waivers any statutory or
other requirements that Employer be required to post a bond or
other security in order to obtain or maintain or enforce a
temporary or permanent restraining order or injunctive relief.
C. In the event the Employee desires to violate any part
of the covenant not to compete (as may be determined
enforceable), then Employee shall pay unto the Employer, its
successor and/or it assign(s) immediately the sum of $150,000.00
as agreed and liquidated damages in lieu of injunctive relief
that may be available. The parties hereby recognize that the
exact amount of damages Employer would suffer by Employee
violating any part of this covenant would be difficult to
exactly determine, and the parties recognize said $150,000.00 as
reasonable and not as a penalty. Said damages shall be paid
prior to said breach. In the event said $150,000.00 is not
paid prior to said breach, then Employer, its successors and/or
assign(s) may seek to obtain injunctive and/or other appropriate
relief.
D. In the event Employer utilizes the services of an
attorney to enforce any part of this covenant, including but not
limited to, obtaining an injunction, the Employee shall pay all
said attorney's fees, court costs and expenses and interest at
the maximum rate allowed by law until paid in full.
Further, Employee shall always:
(i)
Refrain from making derogatory or
disparaging remarks
concerning the Employer, its officers, its directors, its
employees or their professional competence, orally or in
writing, directly or indirectly.
(ii)
Maintain in strictest confidence all
information concerning the Employer, its business practices,
procedures and list of patients except in the normal course of
business.
Notwithstanding anything to the contrary contained
in this Agreement, this restrictive covenant shall survive the
termination of this Agreement and Employee's employment with
Employer to the extent this restrictive covenant is applicable
in accordance with the provisions of this Paragraph 19.
13. NOTICES. Any notices
required or permitted to be given under this Agreement shall be
sufficient if in writing and if sent by registered or certified
mail to his residence in the case of Employee, or to its
principal office in the case of the Employer.
IN WITNESS WHEREOF, the parties to this Agreement
have caused the same to be executed, and agree thereby to the
terms of Schedule "A" which is attached hereto and incorporated
herein by specific reference, this _____ day of _______________
, 2007
Signed, sealed and delivered In the
presence of: THE ENG GROUP, LCC., a Florida Corporation,
Employer
________________________
By:__________________________________
Witness:_________________ TEG
(COMPANY) OFFICER
________________________
Witness:_________________
________________________
_____________________________________
Witness:_________________ Employee /
Consultant / Company
________________________
Witness:_________________ |