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Employment Agreement Between R. Douglas Orr And First Cash Financial Services, Inc

Employee Benefits Plan Agreement

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FIRSTCASH, INC | FIRST CASH FINANCIAL SERVICES, INC

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Title: EMPLOYMENT AGREEMENT BETWEEN R. DOUGLAS ORR AND FIRST CASH FINANCIAL SERVICES, INC
Governing Law: Texas     Date: 8/26/2016
Industry: Consumer Financial Services     Sector: Financial

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EXHIBIT 10.3

 

 

____________________________________________________________

 

 

EMPLOYMENT AGREEMENT

BETWEEN

R. DOUGLAS ORR

AND

FIRST CASH FINANCIAL SERVICES, INC.

 

 

_________________________________________________________________

 

 

 

 

 

 

 

 

  


 

 

 

EMPLOYMENT AGREEMENT

1. Employment

2. Term

3. Extent of Service

4. Compensation and Benefits

(a)

Base Salary

 

(b)

Incentive, Savings and Retirement Plans

 

(c)

Welfare Benefit Plans

 

(d)

Fringe Benefits

 

(e)

Vacation

 

(f)

Expenses

5. Change in Control

6. Termination of Employment

(a)

Death

 

(b)

Disability

 

(c)

Termination by the Company

 

(d)

Termination by Executive

 

(e)

Notice of Termination

 

(f)

Date of Termination

7. Obligations of the Company upon Termination

(a)

Termination by the Company Other Than for Cause or Disability; Termination by Executive for Good Reason    

 

(b)

Death or Disability

 

(c)

Termination by the Company for Cause; Executive’s Resignation without Good Reason

 

(d)

Resignations

8. Restrictive Covenants

(a)

Acknowledgments

 

(b)

Definitions

 

(c)

Restrictions on Disclosure and Use of Confidential Information

 

(d)

Non-Competition

 

 


 

 

(e)

Non-Solicitation of Protected Customers

 

(f)

Non-Recruitment of Employees

 

(g)

Proprietary Rights

 

(h)

Return of Materials

 

(i)

Enforcement of Restrictive Covenants

 

(j)

Disclosure of Agreement

9. Agreement Not to Disparage

10. Non-exclusivity of Rights

11. Full Settlement; No Mitigation

12. Mandatory Reduction of Payments in Certain Events

13. Arbitration

14. Successors

15. Cooperation

16. Code Section 409A

17. Miscellaneous

(a)

Governing Law; Forum Selection; Consent to Jurisdiction    

 

(b)

Captions

 

(c)

Amendments

 

(d)

Notices

 

(e)

Severability

 

(f)

Withholding

 

(g)

Waivers

 

(h)

Entire Agreement

 

(i)

Construction

 

(j)

Counterparts

 

 

 

 


 

 

EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this “ Agreement ”) is made and entered into this 26 th day of August, 2016 (the “ Effective Date ”) by and between First Cash Financial Services, Inc., a Delaware corporation (the “Company”) and R. Douglas Orr (the “ Executive ”), to be effective as of the Effective Date. This Agreement supersedes and replaces that certain Employment Agreement between the Company and the Executive dated as of April 30, 2010, as amended (the “ Original Employment Agreement ”).

 

BACKGROUND

 

WHEREAS, the Company currently employs Executive as its Executive Vice President and Chief Financial Officer under the terms and conditions as set forth in the Original Employment Agreement; and

 

WHEREAS, the Company and the Executive desire to hereby amend and restate the Original Employment Agreement, and agree that the Original Employment Agreement shall have no further force or effect as of the Effective Date of this Agreement.

 

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: `

 

1.     Employment . The Executive is hereby employed on the Effective Date as the Executive Vice President and Chief Financial Officer of the Company. In this capacity, the Executive shall have the duties, responsibilities and authority commensurate with such position as shall be assigned to him by the Chief Executive Officer of the Company or the Board of Directors of the Company (the “ Board ”). In his capacity as Executive Vice President and Chief Financial Officer of the Company, the Executive will report directly to the Chief Executive Officer of the Company.

 

2.     Term . Unless earlier terminated herein in accordance with Section 6 hereof, the Executive’s employment with the Company shall be governed by the terms and conditions of this Agreement for a period beginning on the Effective Date and ending on December 31, 2021 (the “ Term ”).

 

3.     Extent of Service . During the Term, the Executive agrees to devote all of his professional and business-related time to the business and affairs of the Company and its affiliates and to use his best efforts to perform faithfully and efficiently his job responsibilities. Nothing in this Agreement shall prohibit Executive from (i) serving on the boards of directors of trade associations or charitable/non-profit organizations; (ii) engaging in charitable activities and community affairs; (iii) serving on the boards of directors of other public and/or private companies with the prior written approval of the Board, which shall not be unreasonably withheld (provided that, for avoidance of doubt, such service does not violate any of the restrictive covenants in Section 8 of this Agreement); or (iv) managing his personal investments and affairs, provided that the activities described in the preceding clauses (i) through (iv) do not materially interfere with the proper performance of his duties and responsibilities hereunder.

 

4.     Compensation and Benefits .

 

(a)     Base Salary . Executive’s base salary in effect as of the Effective Date shall remain in effect from the Effective Date through December 31, 2016. Beginning on January 1, 2017, and for the remainder of the Term, the Company will pay to the Executive base salary at the rate of U.S. six hundred fifty thousand dollars ($650,000) per year (“ Base Salary ”), less normal withholdings, payable in

 

 

  


 

 

approximately equal bi-weekly or other installments as are or become customary under the Company’s payroll practices for its employees from time to time. The Compensation Committee of the Board (the “ Compensation Committee ”) shall review the Executive’s Base Salary annually and may increase the Executive’s Base Salary from year to year. Such adjusted salary then shall become the Executive’s Base Salary for purposes of this Agreement. The annual review of the Executive’s salary by the Compensation Committee will consider, among other things, the Executive’s own performance and the Company’s performance.

 

(b)     Incentive, Savings and Retirement Plans . During the Term, the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs available to the other senior officers of the Company. Without limiting the foregoing, following shall apply:

 

(i)Executive’s annual bonus opportunity for calendar year 2016 in effect as of the Effective Date shall remain in effect for calendar year 2016. During the remainder of the Term, the Executive shall have an opportunity to receive an annual bonus under the Company’s Annual Performance Incentive Plan, based upon the achievement of performance goals established from year to year by the Compensation Committee (the “ Annual Bonus ”). Unless and until changed by the Compensation Committee, the Executive’s target for the Annual Bonus shall be at least 100% of Base Salary (the “ Target Bonus ”).

 

(ii)During the Term, the Executive will be eligible for grants of stock-based awards under the Company’s long-term incentive plan or plans, having terms and determined in the same manner as awards to other senior officers. Nothing herein requires the Company to make grants of stock-based awards in any year.

 

(c)     Welfare Benefit Plans . The Executive and his eligible dependents shall be eligible for participation in the welfare benefit plans, practices, policies and programs provided by the Company, if any, to the extent available to other senior officers and subject to eligibility requirements and terms and conditions of each such plan; provided , however , that nothing herein shall limit the ability of the Company to amend, modify or terminate any such benefit plans, policies or programs at any time and from time to time.

 

(d)     Fringe Benefits . During the Term, Executive shall be entitled to fringe benefits to the extent available to other senior officers in accordance with the plans, practices, programs and policies of the Company.

 

(e)     Vacation . Executive shall be entitled to four (4) weeks paid vacation each year during the Term. Any vacation or personal business days not used in any year shall be forfeited.

 

(f)     Expenses . During the Term, the Executive shall be entitled to receive prompt reimbursement from the Company for all reasonable and customary expenses incurred by the Executive in the course of performing his duties and responsibilities under this Agreement, in accordance with the policies, practices and procedures of the Company with respect to travel, entertainment and other business expenses (“ Business Expenses ”).

 

Notwithstanding the foregoing, (i) the reimbursements for Business Expenses provided in any one calendar year shall not affect the amount of such reimbursements provided in any other calendar year; (ii) the reimbursement of an eligible Business Expense shall be made within thirty (30) days following the Executive’s submission of evidence, satisfactory to the Company, of the incurrence of such Business Expense, but in no event later than December 31 of the year following the year in which the expense was

 

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incurred; (iii) the Executive’ s rights pursuant to this Section 4(f) shall not be subject to liquidation or exchange for another benefit; and (iv) the reimbursements for Business Expenses shall be provided in accordance with the policies, practices and procedures of the Company.

 

5.     Change in Control . For purposes of this Agreement, “ Change in Control ” shall mean the consummation of a reorganization, merger, consolidation, statutory share exchange or similar form of corporate transaction involving the Company or a subsidiary of the Company (a “ Reorganization ”), or the sale or other disposition of all or substantially all of the Company’s assets (a “ Sale ”) or the acquisition of assets or stock of another corporation or other entity (an “ Acquisition ”), unless immediately following such Reorganization, Sale or Acquisition: (A) all or substantially all of the individuals and entities who were the beneficial owners (as defined in Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934 Act, as amended (“ Beneficial Owners ”)), respectively, of the outstanding Company Stock and the Company’s then outstanding securities eligible to vote for the election of directors (“ Company Voting Securities ”) immediately prior to such Reorganization, Sale or Acquisition beneficially own, directly or indirectly , more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from or surviving such Reorganization, Sale or Acquisition (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets or stock either directly or through one or more subsidiaries, the “Surviving Entity”) in substantially the same proportions as their ownership, immediately prior to such Reorganization, Sale or Acquisition, of the outstanding Company Stock and the outstanding Company Voting Securities, as the case may be, and (B) no person (other than (x) the Company or any subsidiary of the Company, (y) the Surviving Entity or its ultimate parent entity, or (z) any employee benefit plan (or related trust) sponsored or maintained by any of the foregoing) is the Beneficial Owner, directly or indirectly, of 50% or more of the total common stock or 50% or more of the total voting power of the outstanding voting securities eligible to elect directors of the Surviving Entity. A Change in Control shall not include a public offering of any class or series of the Company’s equity securities pursuant to a registration statement filed by the Company under the Securities and Exchange Act of 1933, as amended.

 

6.     Termination of Employment .

 

(a)     Death . The Executive’s employment shall terminate automatically upon the Executive’s death during the Term.

 

(b)     Disability . If the Company determines in good faith that the Executive has become Disabled (as defined below) during the Term, then it may give to the Executive written notice of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Company shall terminate effective on the thirtieth (30 th ) day after receipt of such written notice by the Executive (the “ Disability Effective Date ”), provided that, within the thirty (30) days after such receipt, the Executive shall not have returned to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of the Executive, as reasonably determined by the Company, to perform the essential functions of his regular duties and responsibilities, with or without reasonable accommodation, due to a medically determinable physical or mental illness which has lasted (or can reasonably be expected to last) for a period of six (6) consecutive months. At the request of the Executive or his personal representative, the Company’s determination that the Disability of Employee has occurred shall be certified by a physician mutually agreed upon by the Executive, or his personal representative, and the Company.

 

(c)     Termination by the Company . The Company may terminate the Executive’s employment during the Term with or without Cause. For purposes of this Agreement, a termination shall

 

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be considered to be for “Cause” if it occurs in conjunction with a good faith determination by the Board that any of the following have occurred:

 

(i)    the Executive’s material or habitual failure to meet performance standards agreed to upon by the Executive and the Board, or to follow the reasonable and lawful directions of the Board, or perform his duties with the Company (other than any such failure resulting from the Executive’s Disability) which failure is not cured within ten (10) days after a written demand for performance is delivered to the Executive by the Company which specifically identifies the manner in which the Company believes that the Executive has materially or habitually failed to perform the Executive’s duties;

 

(ii)    the Executive’s engaging in any illegal conduct, gross misconduct or gross negligence in connection with the performance of his duties hereunder, which is, or is likely to be, injurious to the Company, its financial condition, or its reputation, with the understanding that, without limiting the generality of the foregoing, any circumstances with respect to the Executive that, in the discretion of the Board or the FDIC, are deemed to be violation of Section 19 of the Federal Deposit Insurance Act (12 U.S.C. § 1829(a)) shall constitute illegal conduct in connection with the performance of his duties hereunder that is injurious to the Company, its financial condition, or its reputation;

 

(iii)    the Executive’s commission of or engagement in any act of fraud, misappropriation, dishonesty or embezzlement, whether or not such act was committed in connection with the business of the Company;

 

(iv)    the Executive’s breach of fiduciary duty, breach of any of the covenants set forth in Section 8 or 9 of this Agreement, or material breach of any other provisions of this Agreement;

 

(v)    the Executive’s conviction of, pleading guilty to, or confession to a felony or any crime involving moral turpitude (including pleading guilty or nolo contendere to a felony or lesser charge which results from plea bargaining), whether or not such felony, crime or lesser offense is connected with the business of the Company;

 

(vi)    the Executive’s indictment or conviction of, pleading guilty to, or confession to a felony or any crime (including pleading guilty or nolo contendere to a felony or lesser charge which results from plea bargaining), which felony, crime or lesser offense is connected with the business of the Company; or

 

(vii)    the Executive’s violation of the Company’s policy against harassment or its equal employment opportunity policy or a material violation of any other policy or procedure of the Company (including, but not limited to, the Company’s code of business conduct).

 

(d)     Termination by the Executive . The Executive’s employment may be terminated by the Executive for any reason or for Good Reason by providing thirty (30) days prior written notice to the Company. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following, without the Executive’s consent:

 

(i)    a material diminution in the Executive’s Base Salary or Annual Bonus opportunity;

 

(ii)    a material diminution in the Executive’s authority, duties, or responsibilities;

 

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(iii)    the relocation of the Executive’s principal office to a facility or location more than fifty (50) miles away from the Executive’s principal place of work immediately prior to the relocation; provided , however , that Good Reason shall not include (A) any relocation of the Executive’s principal office which is proposed or initiated by the Executive; or (B) any relocation that results in the Executive’s principal place office being closer to the Executive’s then-principal residence;

 

(iv)    any material breach by the Company of this Agreement;

 

The Executive’s termination for Good Reason must occur within a period of ninety (90) days after the occurrence of an event of Good Reason. A termination by the Executive shall not constitute termination for Good Reason unless the Executive shall first have delivered to the Company written notice setting forth with specificity the occurrence deemed to give rise to a right to terminate for Good Reason (which notice must be given no later than thirty (30) days after the initial occurrence of such event), and there shall have passed a reasonable time (not less than thirty (30) days) within which the Company may take action to correct, rescind or otherwise substantially reverse the occurrence supporting termination for Good Reason as identified by the Executive. Good Reason shall not include the Executive’s death or Disability. The parties intend, believe and take the position that a resignation by the Executive for Good Reason as defined above effectively constitutes an involuntary separation from service within the meaning of Section 409A of the Code and Treas. Reg. Section 1.409A-1(n)(2).

 

(e)     Notice of Termination . Any termination by the Company or the Executive shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 17(d) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated, and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date. The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

 

(f)     Date of Termination . “Date of Termination” means (i) if the Executive’s employment is terminated other than by reason of death or Disability, the date of receipt of the Notice of Termination or, subject to any cure period, any later date specified therein within sixty (60) days after receipt of the Notice of Termination, as the case may be, or (ii) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as the case may be.

 

7.     Obligations of the Company upon Termination .

        

(a)     Termination by the Company Other Than for Cause or Disability; Termination by Executive for Good Reason . If, during the Term, (A) the Company shall terminate the Executive’s employment other than for Cause or Disability, or (B) the Executive shall terminate employment for Good Reason, then, and with respect to the payments and benefits described in clauses (ii) and (iii) below, only if within sixty (60) days after the Date of Termination the Executive shall have executed a separation agreement containing a full general release of claims and covenant not to sue in a form satisfactory to the Company (the “ Release ”) and such Release shall not have been revoked within the time period specified therein:

 

 

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(i)    the Company shall pay to the Executive in a lump sum in cash within sixty (60) days after the Date of Termination, the exact payment date to be determined by the Company, the sum of (1) the Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (2) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the “ Accrued Obligations ”); and

 

(ii)    the Company shall pay to the Executive in a lump sum in cash within sixty (60) days after the Date of Termination, the exact payment date to be determined by the Company, a severance payment equal to one times (or two times, if such termination occurs within twelve (12) months following a Change in Control) the sum of (1) the Executive’s Base Salary in effect as of the Date of Termination, and (2) the average of the Annual Bonuses earned by Executive for each of the three fiscal years immediately preceding the year in which the Date of Termination occurs (the “ Three-Year Average Annual Bonus ”); and

 

(iii)    if such termination occurs within twelve (12) months following a Change in Control, the Company shall pay to the Executive in a lump sum in cash within sixty (60) days after the Date of Termination, the exact payment date to be determined by the Company, a pro rata Annual Bonus equal to the product of (x) the Target Bonus for the year in which the termination occurs (or, in the sole discretion of the Compensation Committee, a larger amount not to exceed the maximum payout opportunity for the Annual Bonus for the year in which the termination occurs), and (y) a fraction, the numerator of which is the number of days in the calendar year through the Date of Termination, and the denominator of which is 365 (if such termination does not occur within twelve (12) months following a Change in Control, any pro rata Annual Bonus will be payable at the discretion of the Compensation Committee); and

 

(iv)    if such termination occurs within twelve (12) months following a Change in Control, (A) all stock options, restricted stock, restricted stock units and other time-vesting equity awards held by the Executive as of the Termination Date shall immediately become fully vested and exercisable, and all time-based vesting restrictions on outstanding awards shall lapse, and (B) all performance-based equity awards shall be deemed to have been fully earned as of the Date of Termination based upon an assumed achievement of all relevant performance goals at “target” levels (or, in the sole discretion of the Compensation Committee, based upon actual or deemed achievement of all relevant performance goals above “target” levels, up to the maximum possible achievement levels), and there shall be a full (non-prorated) payout to the Executive within sixty (60) days following the Date of Termination, unless a later date is required by Section 16 hereof (if such termination does not occur within twelve (12) months following a Change in Control, then the outstanding equity awards held by the Executive as of the Date of Termination shall be governed by the plans under which they were granted and the agreements evidencing such awards); and

 

(v)    if the Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which the Executive and/or the Executive’s eligible dependents would be entitled under Section 4980B of the Code (COBRA), then during the period that the Executive is entitled to such coverage under COBRA (the “ Welfare Benefits Continuation Period ”), the Company shall pay the excess of (1) the COBRA cost of such coverage over (2) the amount that the Executive would have had to pay for such coverage if he had remained employed during the Welfare Benefits Continuation Period and paid the active employee rate for such coverage (the “ COBRA Subsidy ”); provided , however , that (A) that if the Executive becomes eligible to receive group health benefits under a program of a subsequent employer or otherwise (including coverage available to the Executive’s spouse), the Company’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (B) the Welfare Benefits Continuation Period shall run concurrently with any period for which the Executive is eligible to elect health coverage under COBRA; provided , however , that if such termination occurs within twelve (12) months following a Change in Control, then, in lieu of the

 

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COBRA Subsidy described above, Company shall pay to the Executive in a lump sum in cash within sixty (60) days after the Date of Termination, the exact payment date to be determined by the Company, an amount equal to the full monthly COBRA cost of the coverage multiplied by twenty-four (24); and

 

(vi)    to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the “ Other Benefits ”).

 

For the avoidance of doubt, the parties acknowledge that, in the event that the Executive terminates his employment for Good Reason as a result of the decrease in his Base Salary as contemplated in Section 6(d)(i) hereof, then the Base Salary used for purposes of the calculation of the Accrued Obligations and severance payment under subsection (ii) above, shall be the Base Salary in effect immediately prior to such reduction.

 

 (b)     Death or Disability . If the Executive’s employment is terminated by reason of the Executive’s death or Disability during the Term, this Agreement shall terminate without further obligations to the Executive or the Executive’s legal representatives under this Agreement, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid by the Company to the Executive or the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within thirty (30) days after the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as used in this Section 7(b) shall include without limitation, and the Executive or the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits under such plans, programs, practices and policies relating to death or disability benefits, if any, as are applicable to the Executive on the Date of Termination.

 

(c)     Termination by the Company for Cause; Executive’s Resignation without Good Reason . If, during the Term, the Company shall terminate Executive’s employment for Cause or the Executive shall resign for any reason other than for Good Reason, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid by the Company to the Executive in a lump sum in cash within thirty (30) days after the Date of Termination.

 

(d)     Resignations . Termination of the Executive’s employment for any reason whatsoever shall constitute the Executive’s resignation as an officer of the Company, its subsidiaries and affiliates.

 

8.     Restrictive Covenants .

 

(a)     Acknowledgments .

 

(i)     Condition of Employment and Other Consideration . The Executive acknowledges and agrees that he has received good and valuable consideration for entering into this Agreement and further acknowledges that the Company would not continue to employ the Executive in the absence of his execution of and compliance with this Section 8.

 

(ii)     Access to Confidential Information, Relationships, and Goodwill . The Executive acknowledges and agrees that he is being provided and entrusted with Confidential Information (as that term is defined in Section 8(b) hereof), including highly confidential customer information that is

 

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subject to extensive measures to maintain its secrecy within the Company, is not known in the trade or disclosed to the public, and would materially harm the Company’s legitimate business interests if it was disclosed or used in violation of this Agreement. The Executive also acknowledges and agrees that he is being provided and entrusted with access to the Company’s customer and employee relationships and goodwill. The Executive further acknowledges and agrees that the Company would n


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