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Exhibit
10.04
EMPLOYEE
CONFIDENTIALITY, NON-COMPETITION, AND
NON-SOLICITATION
AGREEMENT
This Confidentiality,
Non-Competition, and Non-Solicitation Agreement
(“Agreement”) is entered into this 8th day of January,
2008, by and between Under Armour, Inc. (together with its
affiliates, the “Company”) and Suzanne Karkus
(“Employee”).
EXPLANATORY NOTE
The Employee recognizes that
the Employee has had and will continue to have access to
confidential proprietary information during the course of his or
her employment and that the Employee’s subsequent employment
by a competitor would inevitably result in the disclosure of that
information and, thereby, create unfair competition and would
likely to cause substantial loss and harm to the Company. The
Employee further acknowledges that employment with the Company is
based on the Employee’s agreement to abide by the covenants
contained herein.
NOW THEREFORE, for good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties agree as follows:
1. Confidentiality
. Employee acknowledges Employee’s fiduciary duty and
duty of loyalty to the Company. Further, Employee acknowledges
that the Company, in reliance of this Agreement, will provide
Employee access to trade secrets, customers, proprietary data and
other confidential information. Employee agrees to retain said
information as confidential and not to use said information for
self or disclose same to any third party, except when required to
do so to properly perform duties to the Company. Further, as a
condition of employment, during the time Employee is employed by
the Company and continuing after any termination of the
Employee’s employment with the Company, Employee agrees to
protect and hold in a fiduciary capacity for the benefit of the
Company all Confidential Information, as defined below, unless the
Employee is required to disclose Confidential Information pursuant
to the terms of a valid and effective order issued by a court of
competent jurisdiction or a governmental authority. The
Employee shall use Confidential Information solely for the purpose
of carrying out those duties assigned Employee as an employee of
the Company and not for any other purpose. The disclosure of
Confidential Information to the Employee shall not be construed as
granting to the Employee any license under any copyright, trade
secret, or any right of ownership or right to use the Confidential
Information whatsoever. In the event that Employee is
compelled, pursuant to a subpoena or order of a court or other body
having jurisdiction over such matter, to produce any Confidential
Information or other information relevant to the Company, Employee
agrees to promptly provide the Company with written notice of such
subpoena or order so that the Company may timely move to quash if
appropriate.
(a) For the purposes of this
Agreement, “Confidential Information” shall mean all
information related to the Company’s business that is not
generally known to the public. Confidential Information shall
include, but shall not be limited to: any financial (whether
historical, projections or forecasts), pricing, cost, business,
planning,
1
operations, services, potential
services, products, potential products, technical information,
intellectual property, trade secrets and/or know-how, formulas,
production, purchasing, marketing, sales, personnel, customer,
supplier, or other information of the Company; any papers, data,
records, processes, methods, techniques, systems, models, samples,
devices, equipment, compilations, invoices, customer lists, or
documents of the Company; any confidential information or trade
secrets of any third party provided to the Company in confidence or
subject to other use or disclosure restrictions or limitations;
this Agreement and its terms; and any other information, written,
oral or electronic, whether existing now or at some time in the
future, whether pertaining to current or future developments or
prospects, and whether accessed prior to the Employee’s
tenure with the Company or to be accessed during Employee’s
future employment or association with the Company, which pertains
to the Company’s affairs or interests or with whom or how the
Company does business. The Company acknowledges and agrees
that Confidential Information shall not include information which
is or becomes publicly available other than as a result of a
disclosure by the Employee.
(b) The Employee shall
promptly notify the Company if he has reason to believe that the
unauthorized use, possession, or disclosure of any Confidential
Information has occurred or may occur.
(c) All physical items
containing Confidential Information, including, but not limited to,
the business plan, know-how, collection methods and procedures,
advertising techniques, marketing plans and methods, sales
techniques, documentation, contracts, reports, letters, notes, any
computer media, customer lists and all other information and
materials of the Company’s business and operations, shall
remain the exclusive and confidential property of the Company and
shall be returned, along with any copies or notes that the Employee
made thereof or therefrom, to the Company when the Employee ceases
employment with the Company. The Employee further agrees to
return copies of any Confidential Information contained on
Employee’s home computer, portable computer or other similar
device. Employee also agrees to allow the Company, upon
reasonable belief and with appropriate notice, access to any home
computer, portable computer or other similar device maintained by
Employee, including but not limited to, for the purpose of
determining whether said Confidential Information has been
misappropriated. The Employee further agrees to promptly
return all other property belonging to the Company upon the
termination of Employee’s employment.
2. Non-Competition
. Except as otherwise provided in this Agreement, without the
prior written consent of the Company, the Employee hereby covenants
and agrees that at no time during the Employee’s employment
with Company and for a period of one (1) year immediately
following termination of Employee’s employment with the
Company, whether voluntary or involuntary, shall the
Employee:
(a) directly or indirectly
work for or engage in any capacity in any activities or provide
strategic advice to Competitor Businesses. Competitor
Businesses shall be defined as (i) any business that is
involved in the manufacture, sale, development of fabrications or
manufacturing methods, or marketing of: athletic apparel or
footwear (e.
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