This NonDisclosure Agreement NDA involves
Title: SEVERANCE, NONDISCLOSURE, NONSOLICITATION AND NONCOMPETE AGREEMENT
Governing Law: Texas Date: 7/2/2010
Industry: Software and Programming Sector: Technology
SEVERANCE, NONDISCLOSURE, NONSOLICITATION AND NONCOMPETE AGREEMENT
This Agreement (“Agreement”) is made and entered into as of the 2nd day of July, 2010, by and between Cynthia Almond (“Employee”) and PFSweb, Inc. (the “Company”).
A. The Company and its subsidiaries are engaged in the business of, among other things, eCommerce and business process outsourcing, master distribution of consumable supplies and other products and online discount retailing.
B. The Company has spent significant time, effort, and money to acquire and develop certain goodwill and Proprietary Information (as defined below) that it considers vital to its business and goodwill, and which has become of great value to the Company.
C. The Company’s Proprietary Information will necessarily be communicated to and acquired by Employee in the course of his or her employment, and the Company desires to provide a severance payment to Employee, only if, in doing so, it can protect its Proprietary Information and goodwill.
D. The parties agree and acknowledge that, in light of Employee’s employment relationship with the Company, and in light of Employee’s access to its Proprietary Information, the restrictive covenants contained in this Agreement are essential to protect the legitimate business interests of the Company.
E. The obligations of the Employee contained herein, including Section 4 herein, shall run to the benefit of the Company and its subsidiaries, and, for such purpose, all references herein to the “Company” shall be deemed to include the Company and each of its direct and indirect subsidiaries.
F. The foregoing recitals are incorporated into this Agreement.
NOW, THEREFORE, in consideration of the benefits to be derived from the mutual observance of the agreements and covenants hereinafter contained, the parties agree as follows:
1. Employment . Employee shall devote his or her entire professional time to his or her employment with the Company and shall expend his or her best efforts on behalf of the Company. Employee agrees to abide by all policies, rules, regulations, and decisions adopted by the Company during the Employee’s employment with the Company. Except upon prior written consent by the Company, Employee will not, during any time he or she is employed by the Company:(i) accept any other employment; or (ii) engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage) that might interfere with Employee’s duties and responsibilities under this Agreement or create a conflict of interest with the Company. Notwithstanding the foregoing, Employee may: (a) continue to serve on the boards of directors and advisory boards as shall not materially detract from the performance of the Employee’s duties under this Agreement and to which the Company shall have given its prior written consent and (b) accept such speaking engagements as shall not materially distract from the performance of the Employee’s duties under this Agreement and as may benefit his or her position with the Company.
2. Severance .
(a) At any time, the Company or Employee may terminate Employee’s employment for any or no reason, with or without Cause, and without prior notice. The Company will pay Employee all compensation then due and owing. Thereafter, all of the Company’s obligations to Employee, however arising, shall cease, except as set forth below.
(b) If the Company without Cause (as defined below) terminates Employee’s employment, then, upon execution of a release agreement that is reasonably acceptable to the Company’s Board of Directors, and
subject to Employee’s continuing compliance with his or her obligations hereunder, including the obligations set forth in Section 4 hereof, Company shall pay Employee an equivalent of nine months of Employee’s then base salary. This severance payment will be paid in equal installments over a period of nine months, net of any withholdings and taxes and in accordance with the Company’s ordinary pay policies. After the Company has satisfied its severance payment obligations under this paragraph, all obligations of the Company under this Agreement shall immediately cease
(c) Notwithstanding paragraphs (a) and (b) above, the Company may terminate Employee’s employment for Cause at any time, without prior notice, and without any obligation to pay any severance, provided, however, Employee may not be terminated for Cause under the provisions of clauses (d) (i), (ii), or (v), below, unless the Employee is first given written notice by the Company of the matter or matters that are alleged to constitute Cause and is afforded a reasonable time to effect a cure and the opportunity to address the matter at a meeting or a conference call of the Company’s Board of Directors. If Employee is terminated for Cause, the Company shall pay Employee all compensation to which he or she is entitled up through the date of termination and thereafter, all obligations of the Company shall immediately cease.
(d) For purposes of this Agreement, the term “Cause” shall mean: (i) a material breach of any term set forth in this Agreement; (ii) Employee’s failure to follow the reasonable instructions of the Company; (iii) misconduct on Employee’s part that is materially injurious to the Company, monetarily or otherwise, including misappropriation of trade secrets, fraud, or embezzlement; (iv) Employee’s conviction for fraud or any other felony; or (v) if Employee exhibits in regard to his or her employment unavailability for service, misconduct, dishonesty, or habitual neglect.
(e) Notwithstanding the foregoing, in addition to the payments described in paragraph (b), all of Employee’s medical, dental and insurance benefits (the “Benefits”) will continue until the last day of the ninth (9 th ) month following the termination of employment for Employee and his or her dependents under the same terms as prior to termination. For the maximum available period following the expiration of the foregoing nine month period, Employee will be offered the option of continuing health insurance benefits under COBRA at Employee’s sole expense.
(f) The parties agree that it is the intent of the parties to comply with the applicable provisions of Section 409A of the Internal Revenue Code, and this Agreement may be amended, as reasonably requested by either party, as may be necessary to fully comply with said Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(g) The provisions of this Agreement shall not affect the terms and conditions of any Company issued stock options held by the Employee, and the Employee’s right to exercise any such stock options shall be governed by the terms and provisions of such stock options and the applicable plan(s) under which such stock options have been issued.
3. Termination Obligations .
(a) In the event of any termination of Employee’s employment for any reason, Employee shall be deemed to have resigned voluntarily from all offices, directorships, and other positions held with the Company, if he or she was serving in any such capacities at the time of termination.
(b) Employee will cooperate with the Company in the winding up or transferring to other employees any pending work or projects. Employee will also cooperate with the Company in the defense of any action brought by any third party against the Company that relates to Employee’s employment with the Company.
(c) Employee agrees that all property, including, without limitation, all equipment, tangible Proprietary Information, documents, books, records, reports, notes, contracts, lists, computer disks (and other computer-generated files and data), and copies thereof, created on any medium and furnished to, obtained by, or prepared by Employee in the course of, or incident to his or her employment, belongs to the Company and shall be returned promptly to the Company upon termination of his or her employment.
4. Proprietary Information; Non-Disclosure; Non-Solicitation and Non-Compete .
(a) Proprietary Information : For purposes of this Agreement, “Proprietary Information” means all information and any idea in whatever form, tangible or intangible, whether disclosed to or learned or developed by Employee, pertaining in any manner to the business of the Company or to the Company’s affiliates (including subsidiaries), consultants, customers, and business associates, unless: (i) the information is or becomes publicly known through lawful means; (ii) the information was rightfully in Employee’s possession or part of my general knowledge prior to his or her employment by the Company; or (iii) the information is disclosed to Employee without confidential or proprietary restriction by a third party who rightfully possesses the information and did not learn of it, directly or indirectly, from the Company. Employee further understands that the Company considers the following information to be included, without limitation, in the definition of Proprietary Information: (a) techniques, development tools and processes, computer printouts, computer programs, design manuals; (b) information about costs, profits, revenues, margins and markets; (c) plans for future development and new product concepts; (d) customer names, addresses, telephone numbers, facsimile numbers, credit card numbers, contact persons and customer preferences; (e) vendor names, addresses, telephone numbers, facsimile numbers, contact persons, vendor preferences and pricing; (f) marketing plans, bidding information, costs of product, services and other items, proposal information, proposal methods and policies, price schedules, product profit margins, price setting methods and policies, customer service methods and policies and service plans and policies; (g) product plans, product development plans, product specifications, sources of supply, methods of operation and related materials conceived, created or reduced to practice in the performance of services for