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Exhibit 10.4
OFFICEMAX INCORPORATED
NONDISCLOSURE AND NONCOMPETITION AGREEMENT
THIS AGREEMENT is made as of this 3rd day of October, 2005 by and between OfficeMax Incorporated, a Delaware corporation (“OfficeMax”), which term includes any and all affiliates and subsidiaries), and Don Civgin (the “Employee”).
In consideration of the mutual covenants contained herein, including without limitation OFFICEMAX’s employing Employee, OFFICEMAX providing Employee with OFFICEMAX’s confidential information and trade secrets, OFFICEMAX providing training to Employee, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Confidential Information/Trade Secrets. OFFICEMAX shall provide Employee with certain
OFFICEMAX confidential information and trade secrets (“Confidential
Information”). Confidential Information includes, without
limitation, the names, addresses, price lists, purchasing histories and
requirements of customers and potential customers; location, region, and
company financial reports, sales and service manuals and bulletins; cost
information and patterns; floor plans and drawings of facilities; marketing
strategies; acquisition and expansion plans; and other similar
information. Confidential Information shall also include, without
limitation, all letters, memoranda, notes, tables, spreadsheets, and other
similar documents, whether in hard-copy or electronic form, created or
generated by or on behalf of Employee using the information, or any part
thereof, described in the previous sentence. Employee recognizes that
such information is the confidential information and trade secrets of
OFFICEMAX, and agrees not to divulge such information to any person, firm, or
institution except as such disclosure is necessary to discharge his duties to
the Company. Further, upon termination of employment with OFFICEMAX,
Employee will continue to treat Confidential Information as private and
privileged, and will not, either for Employee’s own purposes or as an
employee of or for the benefit of any other entity or person, use such
information or disclose it to any person, firm, or institution.
2.
Return of Property. On termination of Employee’s employment
with OFFICEMAX, Employee will immediately surrender to OFFICEMAX, in good
condition, all (a) Confidential Information; and (b) all letters,
notes, memoranda, program design specifications, and all other similar items
which relate to customers or potential customers of OFFICEMAX that Employee
obtained from OFFICEMAX files or databases, are supplied to Employee by
OFFICEMAX, or generated by Employee from OFFICEMAX data and that are in
Employee’s possession, custody, or control wherever located including all
reproductions or copies of such materials, whether in hard-copy or electronic
form; and (c) and all tangible property of OFFICEMAX, including but not
limited to computers, handheld electronic devices, cellular telephones,
briefcases, samples, merchandise, and furniture.
3.
Noncompetition. In exchange for OFFICEMAX’s employment
of Employee, and its agreement to provide Employee Confidential Information and
senior executive separation benefits under certain circumstances as agreed, for
a period of 12 months after termination of Employee’s employment with
OFFICEMAX, whether such termination is voluntary or involuntary (or for a
period of 12 months after a final judgment or injunction enforcing this
covenant), Employee agrees not to, directly as an employee or indirectly as a
consultant or contractor,
without the prior written consent of OFFICEMAX, be employed in the same or similar capacity as Employee was employed by OFFICEMAX immediately prior to termination of his or her employment, by another business entity or person whose principal activity is the sale or distribution of office supplies, office furniture, computer consumables or related office products or services, in the Territory (as defined below). For purposes hereof, the Territory shall be all of North America.
In agreeing to this restriction, Employee specifically acknowledges the substantial value to OFFICEMAX of Confidential Information and Employee’s intimate knowledge of OFFICEMAX’s business and agrees that such constitutes goodwill and a protectable interest of OFFICEMAX.
4.
Non-Solicitation. In addition to the foregoing and not in
limitation thereof, for all periods beginning upon the date hereof and ending
two years from the date of Employee’s termination of employment with
OFFICEMAX for whatever reason, Employee agrees that he/she shall not directly
or indirectly, for Employee’s benefit or on behalf of any other party
(other than OFFICEMAX):
(a)
solicit or attempt to solicit any
customer of OFFICEMAX for the purpose of selling or distributing office
supplies, office furniture, computer consumables or related office products or
services. For purposes hereof, a customer of OFFICEMAX shall mean any
person or business to whom OFFICEMAX sold or distributed office supplies,
office furniture, computer consumables or related office products and services
during the last two years Employee was employed by OFFICEMAX.






