Exhibit 99.5
Confidentiality, Non-Solicitation
and Proprietary Information Agreement
(Evercore Senior Managing
Director)
This
Confidentiality, Non-Solicitation and Proprietary Information
Agreement (the “ Agreement ”), is made on this
21 st day of May, 2009, between
Evercore Partners Inc. (the “ Company ”), and
the employee signatory hereof (the “ Employee
”).
R E C I T A
L S :
WHEREAS, Employee acknowledges and
recognizes the highly competitive nature of the businesses of the
Company and its affiliates (collectively, “ Evercore
”);
WHEREAS, Employee acknowledges that
he/she will be provided with access to sensitive, proprietary and
confidential information of Evercore and will be provided with the
opportunity to develop relationships with clients, prospective
clients, employees and other agents of Evercore, which, in each
case, Employee acknowledges and agrees constitute valuable assets
of Evercore;
WHEREAS, in connection with the
Employee’s execution of an employment agreement with the
Company dated as of the date hereof (the “ Employment
Agreement ”), Employee agrees to be subject to the
restrictive covenants as set forth in this Agreement, effective as
of the date Employee commences employment with Evercore (the
“Effective Date”);
NOW THEREFORE, for good and valuable
consideration, effective as of the Effective Date, the parties
agree as follows:
1.
Confidentiality.
(a) Employee will not at any time
(whether during or after Employee’s employment with
Evercore), other than in the ordinary course of performing services
for Evercore, (x) retain or use for the benefit, purposes or
account of Employee or any other person, firm, partnership, joint
venture, association, corporation or other business organization,
entity or enterprise whatsoever (“ Person ”); or
(y) disclose, divulge, reveal, communicate, share, transfer or
provide access to any Person outside Evercore (other than its
professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential
information obtained by Employee in connection with the
commencement of Employee’s employment with Evercore or at any
time thereafter during the course of Employee’s employment
with Evercore — including without limitation trade secrets,
know-how, research and development, software, databases,
inventions, processes, formulae, technology, designs and other
intellectual property, information concerning finances,
investments, profits, pricing, costs, products, services, vendors,
customers, clients, partners, investors, personnel, compensation
(excluding Employee’s own compensation), recruiting,
training, advertising, sales, marketing, promotions, government and
regulatory activities and approvals — concerning the past,
current or future business, activities and operations of Evercore
and/or any third party that has disclosed or provided any of the
same to Evercore on a confidential basis (provided that with
respect to such third party Employee knows
or reasonably should have known that the third
party provided it to Evercore on a confidential basis) (“
Confidential Information ”) without the prior written
authorization of the Company’s Board of Directors or its
designee; provided, however , that in any event Employee
shall be permitted to disclose any Confidential Information
reasonably necessary (i) to perform Employee’s duties
while employed with Evercore or (ii) in connection with any
litigation or arbitration involving this or any other agreement
entered into between Employee and Evercore before, on or after the
date of this Agreement in connection with any action or proceeding
in respect thereof; provided further , that in any event
Employee shall be permitted to disclose (publicly or otherwise) any
Confidential Information reasonably necessary to disclose
Employee’s “track record” with the Company at any
time after the expiration of the Restricted Period (as defined
below in Section 2(a)(i)).
(b) “Confidential
Information” shall not include any information that is
(x) generally known to the industry or the public other than
as a result of Employee’s breach of this covenant or any
breach of other confidentiality obligations by third parties to the
extent the Employee knows or reasonably should have known of such
breach by such third parties; (y) made legitimately available
to Employee by a third party (unless Employee knows or reasonably
should have known that such third party has breached any
confidentiality obligation); or (z) required by law or by any
court, arbitrator, mediator or administrative or legislative body
(including any committee thereof) with actual or apparent
jurisdiction to order Employee to disclose or make accessible any
information; provided that, with respect to clause
(z) Employee, except as otherwise prohibited by law or
regulation, shall give prompt written notice to Evercore of such
requirement, disclose no more information than is so required, and
shall reasonably cooperate with any attempts by Evercore, at its
sole cost, to obtain a protective order or similar treatment prior
to making such disclosure.
(c) Except as required by law or
otherwise set forth in clause (z) of Section 1(b) above,
or unless or until publicly disclosed by Evercore, Employee will
not disclose to anyone, other than Employee’s immediate
family and legal, tax or financial advisors, the existence or
contents of this Agreement; provided that Employee may
disclose (i) to any prospective future employer the provisions
of this Agreement provided they agree to maintain the
confidentiality of such terms or (ii) in connection with any
litigation or arbitration involving this Agreement.
(d) Upon termination of
Employee’s employment with Evercore for any reason, Employee
shall (x) cease and not thereafter commence use of any
Confidential Information or intellectual property (including
without limitation, any patent, invention, copyright, trade secret,
trademark, trade name, logo, domain name or other source indicator)
if such property is owned or used by Evercore; (y) immediately
destroy, delete, or return to Evercore, at Evercore’s option,
all originals and copies in any form or medium (including
memoranda, books, papers, plans, computer files, letters and other
data) in Employee’s possession or control (including any of
the foregoing stored or located in Employee’s office, home,
laptop or other computer, whether or not Company property) that
contain Confidential Information or otherwise relate to the
business of Evercore, except that Employee may retain only those
portions of any personal notes, notebooks and diaries that do not
contain Confidential Information; and (z) notify and fully
cooperate with Evercore regarding the delivery or destruction of
any other Confidential Information of which Employee is or becomes
aware to the extent such information is in Employee’s
possession or control. Notwithstanding anything elsewhere to the
contrary, Employee shall be entitled to
-2-
retain (and not destroy) (x) information
showing Employee’s compensation or relating to reimbursement
of expenses that Employee reasonably believes is necessary for tax
purposes and (y) copies of plans, programs, policies and
arrangements of, or other agreements with, Evercore addressing
Employee’s compensation or employment or the termination
thereof.
2. Non-Competition;
Non-Solicitation; Non-Interference.
(a) Employee agrees as
follows:
(i) Non-Competition . Subject
to Section 2(b) below, during the term of Employee’s
employment and during the twelve months immediately following any
termination of that employment (regardless of the reason for such
termination) (such period, the “ Restricted Period
”), Employee will not, directly or indirectly:
(A) engage in any business that
competes, as of the Relevant Date (as defined below), with the
business of Evercore (other than any business engaged in solely by
any portfolio company of Evercore), including, without limitation,
any businesses that Evercore is actively considering conducting at
the time of Employee’s termination of employment, so long as
Employee knows or reasonably should have known about such plan(s)
in any geographical area that is within 100 miles of any
geographical area where Evercore provides its products or services
as of the Relevant Date (a “ Competitive Business
”);
(B) enter the employ of, or render
any services to, any Person (or any division or controlled or
controlling affiliate of any Person) who or which is a Competitive
Business as of the date Employee enters such employment or renders
such services; or
(C) subject to the terms of
Evercore’s employee investments policy applicable to Employee
during the Restricted Period (which, while employed by Evercore
shall mean such policy as in effect from time to time and made
available to Employee and, on and after such employment, such
policy as in effect on the date immediately prior to the date of
termination of Employee’s employment with Evercore), acquire
a financial interest in, or otherwise become actively involved
with, any Competitive Business which is a Competitive Business as
of the date of such acquisition or involvement, directly or
indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant.
Notwithstanding the provisions of
Section 2(a)(i)(A), (B) or (C) above, nothing
contained in this Section 2(a)(i) shall prohibit Employee from
(i) investing, as a passive investor, in any publicly held
company provided that Employee’s beneficial ownership of any
class of such publicly held company’s securities does not
exceed two percent (2%) of the outstanding securities of such
class, (ii) entering the employ of any academic institution or
governmental or regulatory instrumentality of any country or any
domestic or foreign state, county, city or political subdivision,
or (iii) providing services to a subsidiary or affiliate of an
entity that controls a separate subsidiary or affiliate that is a
Competitive Business, so long as the subsidiary or affiliate for
which Employee may be providing services is not itself a
Competitive Business and Employee is not, as an employee of such
subsidiary or affiliate, engaging in activities that would
otherwise cause such subsidiary or affiliate to be deemed a
Competitive Business. For purposes of this Section 2(a), the
term “ Relevant Date ” shall mean, during the
term of
