Exhibit 10.4
EXECUTIVE CONFIDENTIALITY AND
RESTRICTIVE COVENANT AGREEMENT
THIS EXECUTIVE CONFIDENTIALITY AND
RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is
entered into as of
, 2009 (the “Effective
Date”), between The Hershey Company, a Delaware corporation
together with its subsidiaries and affiliates and its and their
respective successors and assigns (“Employer” or
“Company”), and the undersigned officer of Employer
(“Executive”).
WHEREAS, Executive currently serves,
or is being hired or promoted to serve, as an officer of the
Company subject to election or appointment by the Company’s
Board of Directors and eligible for participation in the
performance stock unit (“PSU”) program, the restricted
stock unit (“RSU”) program and in other equity grants
and future cycles under the Company’s Equity and Incentive
Compensation Program (“E-grade Officer”).
WHEREAS, Employer possesses certain
valuable confidential, proprietary and/or trade secret information
(collectively, “Confidential Information,” as further
defined below) that gives Employer a competitive
advantage.
WHEREAS, Employer has developed and
maintained, at substantial expense and over a considerable period
of time, relationships with customers, suppliers, agents,
licensees, licensors and others that likewise give Employer a
competitive advantage (“Business
Relationships”).
WHEREAS, as a result of
Executive’s past, future, and/or continued employment as an
E-grade Officer, Executive has been and/or will be and/or will
continue to be given access to, and will assist in, the development
and maintenance of Employer’s Confidential Information and
Business Relationships, and it is the parties’ intent to
continue to safeguard such Confidential Information and Business
Relationships both during and after the term of Executive’s
employment with Employer.
WHEREAS, Employer’s reputation
and present and future competitive position are dependent upon
Employer’s ability to protect its interests in such
Confidential Information and Business Relationships.
NOW, THEREFORE, in consideration of
(i) Employer employing Executive as an E-grade Officer,
(ii) Employer providing and continuing to provide Executive
access to such Confidential Information and Business Relationships,
(iii) Employer making PSU awards, RSU awards and other equity
grants to Executive under the next cycle and all future cycles for
which Executive is eligible, (iv) if applicable, Employer
permitting Executive to participate in and be eligible to receive
amounts in the future under defined benefit or defined contribution
supplemental executive retirement plans (DB SERP or DC SERP, as
applicable), and/or (v) other good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged,
Employer and Executive agree as follows:
1. Non-Disclosure of Confidential
Information . Executive acknowledges that due to the nature of
his/her employment and the position of trust that he/she holds or
will hold with Employer, he/she will have special access to, learn,
be provided with, and in some cases will prepare and create for
Employer, trade secrets and other confidential and proprietary
information relating to Employer’s business, including, but
not limited to, information about Employer’s manufacturing
processes; manuals, recipes and ingredient percentages; engineering
drawings; product and process research and development; new product
information; cost information; supplier data; strategic business
information; information related to Employer’s legal
strategies or legal advice rendered to Employer; marketing,
financial and business development information, plans, forecasts,
reports and budgets; customer information; new product strategies,
plans and project activities; and acquisition and divestiture
strategies, plans and project activities (collectively,
“Confidential Information”). Executive acknowledges and
agrees that Confidential Information, whether or not in written
form, is the exclusive property of Employer, that it has been and
will continue to be of critical importance to the business of
Employer, and that the disclosure of it to, or use of it by,
competitors and others will cause Employer substantial and
irreparable harm. Accordingly, Executive will not, either during
his/her employment or at any time after the termination (whether
voluntary or involuntary, and regardless of reason) of such
employment with Employer, use, or disclose any Confidential
Information relating to the business of Employer which is not
generally available to the public. Notwithstanding the foregoing
provisions of this Paragraph 1, Executive may disclose or use any
such information (i) when such disclosure or use may be
required or appropriate in the good faith judgment of Executive in
the course of performing his/her duties to Employer and in
accordance with Employer policies and procedures, (ii) when
required by a court of law, by any governmental agency having
supervisory authority over Executive or the business of Employer,
or by any administrative or legislative body (including a committee
thereof) with apparent jurisdiction, or (iii) with the prior
written consent of Employer’s Chief Executive Officer
(“CEO”) or Board of Directors (“Board”)
(provided that, if Executive is CEO, such consent must be by the
Board). Notwithstanding anything herein to the contrary, Executive
understands and agrees that his/her obligations under this
Agreement shall be in addition to, rather than in lieu of, any
obligations Executive may have under any applicable statute or at
common law.
2. Non-Competition .
Executive acknowledges that Employer is engaged, domestically and
worldwide, in the business of developing, producing, marketing,
selling and distributing chocolate, confectionery,
confectionery-related snack and chocolate-related products
(“Employer’s Business”). Executive acknowledges
that due to the nature of his/her employment with Employer, he/she
has and will have special access to, contact with, and Confidential
Information about, Employer’s Business and Business
Relationships. Executive acknowledges that Employer has incurred
considerable expense and invested considerable time and resources
in developing its Confidential Information and Business
Relationships, and that such Confidential Information and Business
Relationships are critical to the success of Employer’s
Business. Accordingly, both (i) during the term of his/her
employment with Employer, and (ii) for a period of twelve
(12) months following the termination of his/her employment
(whether voluntary or involuntary, and regardless of reason),
Executive, except in the performance of his/her duties to Employer,
shall not, in any geographic area where Employer conducts business
or where Employer’s products are sold, without the prior
written consent of Employer’s Chief People Offi
