Exhibit 10.28
CONFIDENTIALITY AND
NON-COMPETE AGREEMENT
This Agreement, entered into this
1st day of February, 2004, is by and between Mannatech, Inc., a
Texas corporation (the “Company”) and H. Reg McDaniel
(“HM”).
WHEREAS, HM is a former employee of
the Company;
WHEREAS, HM and the Company entered
into a Confidentiality and Non-Compete Agreement dated June 21,
2002 (the “Prior Agreement”) which expired on June 21,
2003; and
WHEREAS, the Company wishes to
provide certain compensation to HM in exchange for the obligations
set forth in this Agreement;
NOW, THEREFORE, in consideration of
these recitals and the promises and agreements set forth in this
Agreement, the Parties hereby agree as follows:
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1.
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Nondisclosure : For a period of five (5) years following the
execution of this Agreement, HM shall keep and retain in confidence
and shall not disclose, except as required by the Company or by
law, to any person, firm or corporation, or use for HM’s own
purposes, any Confidential Information that he may have learned or
obtained from the Company, or which is new Confidential Information
provided in conjunction with this Agreement.
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a.
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Confidential
Information : For the
purposes of this section, such Confidential Information shall
include, but is not limited to:
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(1)
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The
Company’s operating procedures, processes, formulae,
know-how, scientific, technical, or product information, whether
patentable or not, which is of value to the Company and not
generally known by the Company’s competitors;
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(2)
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All
confidential information obtained from third parties and customers
concerning their products, business, or the direct sale and/or
network/multi-level marketing of dietary supplements;
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(3)
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Confidential
business information of the Company, including, but not limited to,
marketing and business plans, associates and down line information,
strategies, projections, business opportunities, client identities
or lists, sales and cost information, internal financial statements
or reports, profit, loss, or margin information, customer price
information, compensation plans and strategies; and,
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(4)
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Confidential
Information shall not include information which:
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(a)
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Was in the
receiving party’s possession, free of any obligation of
confidence, prior to receipt from the disclosing party, as proven
by the receiving party;
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(b)
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Is already in
the public domain at the time the disclosing party communicated it
to the receiving party, or becomes available to the public through
no breach of this Agreement;
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(c)
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Is received
independently from a third-party free to disclose such information
to the receiving party;
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(d)
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Is developed by
the receiving party independently of and without reference to any
of the Confidential Information, as proven by the receiving
party;
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(e)
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Is disclosed by
the receiving party to a third-party, with the express prior
written consent of the disclosing party;
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(f)
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Is disclosed by
the receiving party in order to satisfy any legal requirement of
any competent government body; provided, however, that immediately
upon the receiving party’s receipt of any such request, the
receiving party shall first advise the disclosing party of same
before making any disclosure to such body, so that the disclosing
party may either interpose an objection to such disclosure before
such body, or take action to assure confidential handling of the
Confidential Information by such body, or take action to protect
the Confidential Information which the disclosing party deems
appropriate under the circumstances; or
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(g)
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Is disclosed in
the course of a criminal or civil investigation of conduct which
allegedly violates any code, statute, ordinance, rule and/or
regulation of the United States or of any state or political
subdivision thereof.
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Inevitable Use or
Disclosure/Irreparable Harm : HM stipulates and agrees that,
for a period of twelve (12) calendar months after the execution of
this Agreement, if HM becomes a spokesperson for, employee,
consultant, owner, partner, shareholder, officer, or director, of
or shareholder of more than 5% of the outstanding stock of a
publicly traded company for any business operation that is involved
in the direct selling business generally and/or direct sales and/or
network/multi-level marketing of dietary supplements and other
similar products sold or distributed by the Company or any of its
subsidiaries or in any manufacturing or formulation of such
products, (collectively the “Business”) such conduct
would result in the inevitable use and/or disclosure of
Confidential Information acquired by or imparted to him. Based on
this stipulation and agreement and for the consideration paid to
him under the terms of this Agreement, HM is prohibited from
becoming employed by, a consultant for, an officer, director or
shareholder of more than 5% of the outstanding stock of, any
business operation which competes in the Business currently engaged
in by Company or any of its subsidiaries or affiliates for a period
of twelve (12) months after execution of this Agreement. The
Company will have the right to seek any injunctive relief necessary
to prevent such irreparable harm and disclosure.
2. Non-Competition : In
exchange for the mutual promises and obligations contained in this
Agreement, and contemporaneous with its execution, the Company
promises to deliver to HM or permit HM to acquire, be exposed to,
and/or have access to new material, data, or information of the
Company and/or its customers or clients that is confidential,
proprietary and/or a trade secret. This includes, but is not
n
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