PROPRIETARY INFORMATION,
INVENTIONS
AND NON-COMPETE AGREEMENT
THIS
PROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETE AGREEMENT (this
“Agreement” ), dated as of the _7th___day of
October, 2005, between WhiteWave Foods Company a Delaware
corporation ( “the Company” ), having its
principal place of business at 1890 North 57
th Court, Boulder, Colorado 80301, and Joseph E.
Scalzo (“Employee”).
WHEREAS, the Company has offered Employee employment as
President and Chief Executive Officer of the Company; a position
which will result in Employee acquiring substantial knowledge of
the operations and practices of the business of the
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) the Company is engaged in a continuous program of
research, development, and production respecting its business
throughout the United States and Canada (the foregoing, together
with any other businesses in which the Company engages, from the
date hereof to the date of the termination of Employee’s
employment with the Company, is hereinafter referred to as the
“Company Business” ); (ii) Employee’s
services to the Company will be unique and have significant value
to the Company, and Employee may make new contributions and
inventions of value to the Company; (iii) Employee’s
work for the Company allows Employee access to trade secrets of,
and confidential information concerning, Company; (iv) the
Company Business is national and international in scope;
(v) the Company would not have agreed to employ Employee but
for the agreements and covenants contained in this Agreement; and
(vi) the agreements and covenants contained in this Agreement
are necessary and essential to protect the business, goodwill, and
customer relationships that the Company has expended significant
resources to develop.
2. Ownership of Works . The Company shall own all
rights, including all trade secrets and copyrights, in and to all
discoveries, developments, designs, improvements, inventions,
formulas, processes, techniques, know-how and data, whether
patentable under patent or registerable under copyright or similar
statutes or reduced to practice and all documentation thereof
created by Employee, during the time Employee is employed by the
Company, whether created during or outside normal business hours or
on the Company premises or at some other location and that:
(i) directly relate to or are derived from the Company
Business; and (ii) result from or are derived from any task or
work assigned to Employee or work performed by Employee for the
Company (collectively, “Works” ). To the extent
that any Works do not qualify as works made for hire under U.S.
copyright law, this
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Agreement shall
constitute an irrevocable assignment by Employee to the Company of
the ownership of, and rights of copyright in, Works. Employee
agrees to give the Company or its designees all assistance
reasonably required to protect such rights.
3. 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 the Company, that
directly relates to the Company Business (collectively,
“Inventions” ), Employee will and hereby does
assign to the Company Employee’s entire right, title and
interest in and to such Inventions. Employee agrees that all
Inventions shall be the sole property of the Company and its
assigns, and the 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 the Company and will, upon request,
promptly sign a specific assignment of title to the Company and do
anything else reasonably necessary without additional compensation
to enable the 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 the Company to effect the terms of this paragraph.
Employee agrees that after termination of employment with the
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.
4. Non-Disclosure . Employee recognizes that the
Company competes in a highly competitive field and that the 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 the 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 the Company’s
business success, and that any release of Proprietary Information
would be harmful to the Company and/or its customers. To protect
the 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 the Company) any and
all Proprietary Information that Employee may have acquired in the
course of or as an incident to Employee’s employment with the
Company. Employee further agrees to take all reasonable precautions
to protect against the intentional, negligent, or inadvertent
disclosure by Employee of the Company’s
Proprietary
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Information to
any other person or business entity, except in furtherance of the
Company Business.
5. Non-Competition . Employee understands and agrees
that during Employee’s employment with the Company, Employee
will be provided access to specialized information related to
Company Business and trade secrets, as well as the Company’s
customers and their confidential information. Employee further
agrees that if this information were used in competition against
the Company, the Company would experience serious har
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