Exhibit 10.2
NONCOMPETITION
AGREEMENT
In recognition of the critical role that you play as a senior
executive with International Business Machines Corporation
(“IBM”), and as consideration for any and all awards to
be granted to you in [Insert Year] under an International
Business Machines Corporation Long-Term Performance Plan (“
LTPP ”), your promotion and/or appointment to the
Integration & Values Team (“I&VT”), and/or
for other good and valuable consideration, you (“
Employee ” or “ you ”) agree to the
terms and conditions of this Noncompetition Agreement (this “
Agreement ”) as follows:
1.
Covenants .
(a) You acknowledge and agree that: (i) as a member of
the I&VT, you will be exposed to some of the most sensitive and
confidential information possessed by IBM and its affiliates
(collectively, the “Company”), including global
strategic plans, marketing plans, information regarding long-term
business opportunities and information regarding the development
status of specific Company products, as well as extensive
assessments of the global competitive landscape of the industries
in which the Company competes; and (ii) the aforementioned
information represents the product of the Company’s
substantial global investment in research and innovation, is
critical to the Company’s competitive success, is disclosed
to the Company’s senior leaders only on a strictly
confidential basis, and is not made accessible to the public or to
the Company’s competitors.
(b) You further acknowledge and agree that: (i) the
business in which the Company is engaged is intensely competitive
and that your employment by IBM has required, and will continue to
require, that you have access to, and knowledge of, confidential
information of the Company, including, but not limited to, certain
or all of the Company’s methods, information, systems, plans
for acquisition or disposition of products, expansion plans,
financial status and plans, customer lists, client data, personnel
information and trade secrets of
the Company, all of which are of
vital importance to the success of the Company’s business
(collectively, “ Confidential Information ”);
(ii) the disclosure of any of the foregoing would place the
Company at a serious competitive disadvantage and would do serious
damage, financial and otherwise, to the business of the Company;
(iii) you have been given access to, and developed
relationships with, customers of the Company at the time and
expense of the Company; and (iv) by your training, experience
and expertise, your services to the Company are, and will continue
to be, extraordinary, special and unique.
(c) You acknowledge and agree that you will keep in strict
confidence, and will not, directly or indirectly, at any time
during or after your employment with IBM, disclose, furnish,
disseminate, make available or, except in the course of performing
your duties of employment, use any trade secrets or confidential
business and technical information of the Company or its customers
or vendors, without limitation as to when or how you may have
acquired such information. Such information shall include,
without limitation, the Company’s unique selling,
manufacturing and servicing methods and business techniques,
training, service and business manuals, promotional materials,
training courses and other training and instructional materials,
vendor and product information, customer and prospective customer
lists, other customer and prospective customer information and
other business information. You specifically acknowledge that
all such information, whether reduced to writing, maintained on any
form of electronic media, or maintained in your mind or memory and
whether compiled by the Company, and/or you, derives independent
economic value from not being readily known to or ascertainable by
proper means by others who can obtain economic value from its
disclosure or use, that reasonable efforts have been made by the
Company to maintain the secrecy of such information, that such
information is the sole property of the Company and that any
retention and use of such information by you during or after
your employment with IBM (except in the course of performing
your duties and obligations hereunder) shall constitute a
misappropriation of the Company’s trade secrets.
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(d) You acknowledge and agree that during your employment
with IBM and for twelve (12) months following the termination of
your employment either by you for any reason, by IBM for
“Cause,” or by IBM without Cause where IBM elects,
pursuant to Paragraph 4 below, to make certain severance payments
to you, you will not directly or indirectly within the
“Restricted Area” (i) “Engage in or
Associate with” (a) any “Business
Enterprise” or (b) any competitor of the Company; or
(ii) solicit, for competitive business purposes, any customer
of the Company with which you were involved as part of your job
responsibilities during the last twelve (12) months of your
employment with IBM. You further agree that during your
employment with IBM and for the two (2) year period following
the termination of your employment by either you or by IBM for any
reason, you will not directly or indirectly within the
“Restricted Area,” hire, solicit or make an offer to
any employee of the Company to be employed or perform services
outside of the Company.
2.
Definitions.
(a) For purposes of this Agreement, the term “
Business Enterprise ” shall mean any entity that
engages in, or owns or controls an interest in any entity that
engages in, competition with any business unit or division of the
Company in which you worked at any time during the three
(3) year period prior to the termination of your
employment.
(b) For purposes of this Agreement, “
Cause ” shall mean, as reasonably determined by IBM,
the occurrence of any of the following:
(i) embezzlement, misappropriation of corporate funds or other
material acts of dishonesty; (ii) commission or
convi
