Exhibit 10.01
EMPLOYEE CONFIDENTIALITY,
NON-COMPETITION, AND
NON-SOLICITATION
AGREEMENT
This Confidentiality,
Non-Competition, and Non-Solicitation Agreement
(“Agreement”) is entered into this 25th day of June,
2008, by and between Under Armour, Inc. (together with its
affiliates, the “Company”) and David McCreight
(“Employee”).
EXPLANATORY NOTE
The Employee has been offered the
position of President of the Company pursuant to a negotiated offer
letter of employment dated June 25, 2008 (the “Offer
Letter”). The Employee recognizes that the Employee has had
or will have access to confidential proprietary information during
the course of his or her employment and that the Employee’s
subsequent employment with a Competitor Business, as defined in
Section 3, would inevitably result in the disclosure of that
information and, thereby, create unfair competition and would
likely 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, in consideration of
Employee’s employment with the Company and for other 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 on
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 the Employee’s personal benefit
or to 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, 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 or she 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
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allow the Company, upon reasonable notice and
for just cause, 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. Ownership of Works for
Hire.
(a) The Employee agrees that any
inventions, ideas, developments, methods, improvements,
discoveries, innovations, software, works of authorship and any
other intangible property (hereinafter collectively referred to as
“Intellectual Property”), whether patentable or not,
which are developed, partially developed, considered, contemplated
or reduced to practice by the Employee or under his or her
direction or jointly with others during his or her employment with
the Company, whether or not during normal working hours or on the
premises of the Company, shall be considered “Works for
Hire” for the exclusive use and benefit of the Company. The
Employee will make full and prompt disclosure to the Company of all
such Works for Hire. The Company shall own all rights to any Works
for Hire, including all copyrights and the right to market (or not
to market) any such property, and the Employee agrees to assign and
does hereby assign to the Company (or any person or entity
designated by the Company) all his or her right, title and interest
in and to all Works for Hire and all related patents, patent
applications, copyrights and copyright applications.
(b) The Employee agrees to cooperate
fully with the Company, both during and after his or her employment
with the Company, with respect to the procurement, maintenance and
enforcement of copyrights and patents (both in the United States
and foreign countries) relating to Works for Hire. The Employee
shall sign all papers, including, without limitation, copyright
applications, patent applications, declarations, oaths, formal
assignments, assignment of priority rights, and powers of attorney,
which the Company may deem necessary or desirable in order to
protect its rights and interests in any Works for Hire.
(c) The Employee specifically
acknowledges that his or her compensation and benefits constitute
full payment for any Works for Hire and waives any claim of right
to the Company.
(d) The Company may, at its election
and discretion, waive and/or relinquish any of its rights of
ownership and royalties with respect to any Works for Hire, by
agreeing to do so in a written instrument executed by the
Company.
3. 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
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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, as an
employee, principal, agent, consultant or otherwise, work for or
engage in any capacity in any activities or provide strategic
advice to Com
