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Exhibit 10.2
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
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This CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (referred to
herein
as this "Agreement") is made and entered by and between
__________ ("Employee")
and The Middleby Corporation (the "Company") as of this ___ day
of ______, 2005
(the "Agreement Date").
R E C I T A L S:
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WHEREAS, the Company and Employee acknowledge that they have
a
confidential relationship and that, in the course of employment
by the Company,
Employee will acquire, develop, be provided with and become
privy to valuable
confidential, restricted, and proprietary information pertaining
to the Company
and its business; and
WHEREAS, pursuant to the terms of The Middleby Corporation 1998
Stock
Option Plan (the "Plan") and Employee's Non-Qualified Stock
Option Agreement
dated as of ___________________ (the "Option Agreement"),
Employee has been
granted a non-qualified option (the "Option") to purchase the
number of shares
specified in the Option Agreement conditioned upon entering into
this
Agreement.
NOW, THEREFORE, in consideration of Employee's Option, the
benefits to
be gained by the performance thereof, and for other good and
valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Confidentiality.
(a) Employee will hold all "Confidential Information" (as
defined
below) in strictest confidence at all times during and after
Employee's
employment, and will not use or disclose such Confidential
Information on
Employee's own behalf, or on the behalf of any third parties, to
any business,
individual, partner, firm, corporation, or other entity, at any
time, other
than as required in performance of Employee's duties on behalf
of the Company
or unless first authorized in writing by an executive officer of
the Company.
In the event that Employee is required by law to disclose any
Confidential
Information, Employee will give the Company prompt written
notice prior to such
disclosure and provide the Company with reasonable assistance in
obtaining an
order to protect the Confidential Information from public
disclosure.
(b) For purposes of this Agreement, "Confidential Information"
shall
mean any confidential or proprietary information about the
Company and/or any
person, firm, company, or other organization that directly, or
indirectly,
through one or more intermediaries, controls, is controlled by,
or is under
common control with, the Company (each, an "Affiliate," and
together,
"Affiliates"), and their joint or respective products, services
or clients,
which is developed by or for the Company or its Affiliate or
which is owned or
used in the course of business by the Company or its Affiliates,
including, but
in no way limited to: (i) information relating to research,
development, patent
and copyright development and licensing thereof, trade secrets,
inventions,
formulas, designs, drawings, specifications and engineering,
laboratory
analysis, production processes, or equipment; (ii) information
related to the
specific or unique marketing techniques, price lists, pricing
policies, sales,
services, costs, business methods, formulas, product
specifications or business
planning of the Company or its Affiliates; (iii) information
relating to the
names of customers of the Company or its Affiliates and their
representatives,
customer services, or the type, quantity and specifications of
products
purchased by or from customers which came into Employee's
knowledge,
possession, or control in connection with his or her employment;
and (iv)
information relating to the specific or unique computer
programs, software,
techniques or equipment of the Company or its Affiliates. The
term
"Confidential Information" does not include information,
materials or devices
which are generally known to the public (other than as a result
of an improper
or unauthorized disclosure by Employee in violation of the terms
hereof) or
information, materials or devices that are not in any manner
competitively
sensitive to the Company or any of its Affiliates.
2. Non-Competition.
(a) During the "Restricted Period" (as defined below), Employee
will
not engage in "Competitive Activities" (as defined below) within
the "Covered
Area" (as defined below) unless first authorized in writing by
an executive
officer of the Company.
(b) For purposes of this Agreement:
(i) "Restricted Period" means the period during which
Employee is employed with the Company or its Affiliates and, in
the event that
Employee voluntarily terminates employment prior to the fifth
anniversary of
the Agreement Date, a one (1) year period following such
termination.
Notwithstanding the foregoing, the lapse or expiration of the
Restricted Period
shall not extinguish or effect any obligations or restrictions
that may
otherwise be applicable to Employee, including, but not limited
to, with
respect to Confidential Information as provided under this
Agreement.
(ii) "Competitive Activities" means rendering the same
services or substantially the same services, or being involved
in the same
capacity or substantially the same capacity as Employee was, for
the Company or
any of its Affiliates, whether as an officer, director,
employee, consultant,
agent, owner or shareholder (excluding ownership of less than
five percent (5%)
of the stock of a publicly traded company), in the manufacture,
development,
promotion, distribution or sale of any cooking or warming
products or services
which are the same as or competitive with any products or
services of any of
the businesses of the Company or its Affiliates in which
Employee has
participated in any material respect during Employee's last
twelve (12) months
of employment (including any products or services known to
Employee to be in
development or which Employee knew the Company or its Affiliates
had plans to
sell within the succeeding twelve (12) months) (the "Covered
Products").
(iii) "Covered Area" means any state, county, city, town,
province or comparable unit of local government where the
Covered Products are
now or hereafter manufactured, marketed, distributed or sold by
the Company or
any of its Affiliates. Employee expressly acknowledges that as
of the Agreement
Date the products of the Company and its Affiliates are
manufactured, marketed,
distributed and sold in Canada, China, India, Korea, Mexico, the
Philippines,
Spain, Taiwan, the United Kingdom and the United States.
3. Business Relationship Non-Solicit/Non-Interference. During
the
Restricted Period, Employee will not: (a) directly or indirectly
solicit,
induce or influence (or attempt to solicit, induce or influence)
any clients,
customers, vendors or suppliers of the Company or its Affiliates
with which
Employee was involved as part of Employee's job responsibilities
during
Employee's last twelve (12) months of employment to divert their
business to
any business, individual, partner, firm, corporation, or other
entity that is a
current or prospective competitor of the Company or its
Affiliates (each such
person or entity, a "Competitor of the Company"), or to
terminate his, her or
its relationship with the Company; (b) interfere with or damage
(or attempt to
interfere with or damage) any relationship and/or agreement
between any of the
Company or its Affiliates and known potential or current
clients, customers,
vendors or suppliers of any of the Company or its Affiliates; or
(c) otherwise
intentionally interfere with or damage the business or accounts
of the Company
or its Affiliates.
4. Employee Non-Solicit. During Restric
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