PROPRIETARY INFORMATION,
INVENTIONS
AND NON-COMPETE
AGREEMENT
THIS PROPRIETARY
INFORMATION, INVENTIONS AND NON-COMPETE AGREEMENT (this
“Agreement” ), dated as of the _7th___day of
September, 2005, between Dean Foods Company, a Delaware
corporation, having its principal place of business at 2515
McKinney Avenue, Suite 1200, Dallas TX 75201, and Alan Bernon
( “Employee” ).
WHEREAS,
the Dean Foods Company, or one or more of its affiliates or
subsidiaries (the “Company” ) has offered
Employee employment as President of Dean Foods Dairy Group; a
position which will result in Employee acquiring substantial
knowledge of the operations and practices of the business of
Company;
WHEREAS,
the Company desires to prevent any competitive business from
securing or utilizing the services of Employee, to the extent and
for the period of Employee’s employment and for a reasonable
period thereafter; and
WHEREAS,
as a condition to the employment of Employee, the Company has
required that Employee enter into this Agreement.
NOW, THEREFORE, it
is agreed as follows:
1.
Acknowledgments . Employee acknowledges that
(i) Company is engaged in a continuous program of research,
development, and production respecting its business throughout the
United States (the foregoing, together with any other businesses in
which Company engages, from the date hereof to the date of the
termination of Employee’s employment with Company, is
hereinafter referred to as the “Company
Business” ); (ii) Employee’s work for Company
allows Employee access to trade secrets of, and confidential
information concerning, Company; (iii) the Company Business is
national and international in scope; (iv) Company would not
have agreed to employ Employee but for the agreements and covenants
contained in this Agreement; and (v) the agreements and
covenants contained in this Agreement are necessary and essential
to protect the business, goodwill, and customer relationships that
Company has expended significant resources to develop.
2.
Inventions . If Employee individually or jointly makes,
conceives of, or reduces to practice any invention, technique,
recipe, process, improvement, modification, development,
documentation, data, design, idea, discovery, trademark, trade
secret, formula, process, or other know-how, whether patentable or
not, in the course of performing services for Company, that
directly relates to the Company Business (collectively,
“Inventions” ), Employee will and hereby does
assign to Company Employee’s entire right, title and interest
in and to such Inventions. Employee agrees that all Inventions
shall be the sole property of Company and its assigns, and Company
and its assigns shall be the sole owner of all patents, copyrights,
and other rights in connection therewith. Employee will disclose
any such Inventions (to the extent Employee knows such inventions
are “Inventions” as defined herein) to an officer of
Company and will, upon request, promptly sign a specific assignment
of title to Company and do anything else reasonably necessary
without additional compensation to enable Company to secure patent,
trade secret, or any other proprietary rights in the United States
or foreign countries. Employee agrees to execute any documents
deemed necessary or advisable by Company to effect the terms of
this paragraph. Employee agrees that after
1
termination of
employment with Company Employee shall not use any Inventions,
except in furtherance of the Company Business and except to the
extent such Inventions are in the public domain through no fault of
Employee.
3.
Non-Disclosure . Employee recognizes that Company
competes in a highly competitive field and that Company possesses
and will continue to possess information of commercial value that
relates to the Company Business, including but not limited to trade
secrets, technical and scientific information, financial business
information, processes, recipes, formulas, data, know-how,
improvements, inventions, product concepts, discoveries,
developments, designs, inventions, techniques, marketing plans,
strategies, forecasts, new products, blueprints, specifications,
programs, ideas, customer lists, vendor lists, pricing and other
structures, marketing and business strategies, budgets,
projections, licenses, costs, financial data, and plans, proposals
and information about Company’s employees and/or consultants
(collectively, “Proprietary Information” ).
Notwithstanding the foregoing, Proprietary Information shall not
include information that is publicly available when received, or
thereafter becomes publicly available through no fault of Employee
or is otherwise disclosed by the Company to another party without
obligation of confidentiality. Employee agrees that the Proprietary
Information constitutes a unique and valuable asset which is
essential to Company’s business success, and that any release
of Proprietary Information would be harmful to Company and/or its
customers. To protect Company’s Proprietary Information,
Employee agrees that at all times, including during and after the
term of Employee’s employment, Employee will not disclose to
any person, firm, company, or corporation or use for
Employee’s own benefit or for the benefit of any third party
(except in furtherance of Company Business or affairs of Company)
any and all Proprietary Information that Employee may have acquired
in the course of or as an incident to Employee’s employment
with Company. Employee further agrees to take all reasonable
precautions to protect against the intentional, negligent, or
inadvertent disclosure by Employee of Company’s Proprietary
Information to any other person or business entity, except in
furtherance of the Company Business.
4.
Non-Competition . Employee understands and agrees that
during Employee’s employment with Company, Employee will be
provided access to specialized information related to Company
Business and trade secrets, as well as Company’s customers
and their confidential information. Employee further agrees that if
this information were used in competition against Company, Company
would experience serious harm and the competitor would have a
unique advantage against Company. Employee hereby covenants and
agrees that (A) at no time during Employee’s employment
with Company and (B) at no time until the two years from the
date of Employee’s termination (the “Non-Compete
Period” ), will Employee (i) develop, own, manage,
operate, or otherwise engage in, participate in, represent in any
way or be connected with, as officer, director, partner, owner,
employee, agent, inde
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