Exhibit 10.1
PAETEC COMMUNICATIONS,
INC.
SENIOR VICE PRESIDENT
CONFIDENTIALITY, NON-SOLICITATION AND
NON-COMPETITION
AGREEMENT
This Senior Vice President
Confidentiality, Non-Solicitation and Non-Competition Agreement
(this “Agreement”) is entered into as of the date set
forth on the signature page hereto between PAETEC Communications,
Inc., a Delaware corporation, including any subsidiary, successor
or affiliate of the Company with which I work (collectively, the
“Company”), and
(“I” or
“me”)).
WHEREAS, the Company now has and
expects to develop confidential and proprietary materials and
highly sensitive information of immeasurable value, which I
recognize must be carefully protected as set forth below for the
Company to be successful;
NOW, THEREFORE, to induce the
Company to employ me and in consideration of my employment or
continued employment by the Company and other good and valuable
consideration the sufficiency of which I expressly acknowledge, the
Company and I hereby agree, intending to be legally bound, as
follows:
1. Company Confidential Materials
and Information
The following materials and
information, whether having existed, now existing, or to be
developed or created during the term of my employment by Company
(herein referred to collectively as the “Company Confidential
Information”) are covered by this Senior Vice President
Confidentiality, Non-Solicitation and Non-Competition Agreement
(“Agreement”):
1.1. Products and Services .
All information to which the Company gave me access, all
information disclosed to me by the Company, and all information
developed for the Company by me, alone or with others, that
directly or indirectly relates to the business, products and/or
services that the Company engages in, plans to engage in or
contemplates engaging in, including but not limited to research,
development, manufacture, sale and/or licensing of products and
services related to communications, integrated communications,
long-distance services, Internet access, eCommerce, hardware and
software (whether owned or licensed by the Company), and data
services, including but not limited to local, domestic, and
international long-distance services, local exchange services,
wholesale long-distance services, IP/ISP services, high-speed
Internet access, DSL services, eCommerce, web hosting, ASP
services, data networking, systems integration services, and data
communications services and other proprietary products or services,
whether existing or in any stage of research and development (such
as trade secrets, inventions, ideas, methods, technical and
laboratory data, engineering data and information, engineering
information related to the integration of communications devices
and equipment, benchmark test results, processes, design
specifications, algorithms, technical data, technical formulas,
engineering data, processes, manufacturing data, procedures,
techniques, methodologies, information processing processes, and
strategies).
1.2. Business and Marketing
Procedures and Customer Information . All information
concerning or relating to the way Company conducts its business,
markets
its products and services, and all information
relating to any Company customers and sales agents or prospective
customers and sales agents (such as internal business procedures,
business strategies, marketing plans and strategies, controls,
plans, licensing techniques and practices, supplier, subcontractor
and prime contractor names and contracts and other vendor
information, customer information and requirements, sales agent
information, computer system passwords and other computer security
controls, financial information, distributor information,
information supplied by clients and customers of Company and
employee data).
1.3. Not Generally Known .
Any information in addition to the foregoing which is not generally
known to the public or within the industry or trade areas in which
Company competes, through no fault of mine, which gives the Company
any advantage over its competitors.
1.4. Third-Party Information
. Any information that is confidential and proprietary to a third
party that the Company has and in the future will receive from such
third party subject to the Company’s duty to maintain the
confidentiality of such information and to use it for certain
limited purposes.
1.5. All Physical Embodiments of
Products, Services, Business, Marketing, Customer and Other
Information . All the physical embodiments of all of the
information included in Sections 1.1, 1.2, 1.3 and 1.4 above,
including but not limited to research programs, research data,
testing data, software, compositions, compounds, hardware, works of
authorship, source code, other computer code, correspondence, check
lists, samples, forms, ledgers, financial data, financial
statements, financial reports, forecasts and projections,
discounts, margins, costs, credit terms, pricing practices, pricing
policies and procedures, goals and objectives, quoting practices,
quoting procedures and policies, financial and operational analyses
and studies, management reports of every kind, databases,
employment records pertaining to employees other than myself,
customer data including customer lists, contracts, representatives,
requirements and needs, specifications, data provided by or about
prospective, existing or past customers and contract terms
applicable to such customers, engineering notebooks, notes,
drawings, work sheets, schematics, load modules, schematics,
annotations, flow charts, logic diagrams, procedural diagrams,
coding sheets, requirements, proposals, instructor manuals, course
materials, video cassettes, transparencies, slides, presentations,
proposals, printouts, studies, contracts, maintenance manuals,
operational manuals, documentation, license agreements, marketing
practices, marketing policies and procedures, marketing plans and
strategies, marketing reports, strategic business plans, marketing
analyses, seminar and class attendee rosters, trade show or exhibit
attendee listings, listings of customer leads, and any other
written or machine-readable expressions of such information as are
fixed in any tangible media.
1.6. Trade Secrets . I
acknowledge and agree that the Company Confidential Information
identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above, constitutes
trade secrets of the Company.
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2. General Knowledge
The general skills, knowledge and
experience gained during my employment with Company, and
information publicly available or generally known within the
industry or trade areas in which the Company competes, are not
considered Company Confidential Information.
3. Employee
Obligations
During my employment with Company, I
acknowledge and agree that I will have access to and become
acquainted with Company Confidential Information and materials,
including its trade secrets, and will occupy a position of trust
and confidence with respect to Company’s affairs, business
and customer goodwill, and Company Confidential Information. I
acknowledge and agree that the interests afforded protection by
this Agreement are Company’s legitimate business interests,
deserving of protection. I further acknowledge that the Company
would not have entered into or continued its employment
relationship with me without my execution of and agreement to this
Agreement. I agree to take the following steps to preserve the
confidential and proprietary nature of Company Confidential
Information and materials and to preserve the Company’s
goodwill:
3.1. Non-Disclosure . During
and after my employment with Company, I will not misuse,
misappropriate, disclose or transfer in writing, orally or by
electronic means, any Company Confidential Information, directly or
indirectly, to any other person, or use Company Confidential
Information in any way, except as is required in the course of my
employment with Company, nor will I accept any employment or other
professional engagement that likely will result in the use or
disclosure, even if inadvertent, of Company Confidential
Information. I further agree that Company Confidential Information
includes information or material received by Company from others,
including its affiliates, and intended by the Company to be kept in
confidence by its recipients. I understand that I am not allowed to
sell, license or otherwise exploit any products (including hardware
or software in any form) which embody or otherwise exploit in whole
or in part any Company Confidential Information or materials. I
acknowledge and agree that the sale, misappropriation, or
unauthorized use or disclosure in writing, orally or by electronic
means, at any time of Company Confidential Information obtained by
me during the course of my employment constitutes unfair
competition. I agree and promise not to engage in any unfair
competition with Company, either during my employment or at any
other time thereafter. I further acknowledge and agree that the
Company’s products and services can be developed and marketed
nationwide, and therefore, the protection afforded the Company must
likewise be nationwide.
3.2. Preservation, Removal and
Return of Information . I agree to take all reasonable steps to
preserve the confidential and proprietary nature of Company
Confidential Information and to prevent the inadvertent or
accidental disclosure of Company Confidential Information. I
acknowledge and agree that all Company Confidential Information,
whether prepared by me or otherwise coming into my possession while
I am employed by the Company, shall remain the exclusive property
of Company. I agree that during my employment with the Company and
thereafter, I will not use, disclose, transfer, or remove from the
Company’s premises any Company
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Confidential Information other than as
authorized by the Company. I agree to return to the Company all
Company Confidential Information and copies thereof, in whatever
form, at any time upon the request of the Company, and at the time
of my termination of employment for any reason. I agree not to
retain any copies of any Company Confidential Information and
Company-owned materials after my termination of employment for any
reason whatsoever. My obligations under this Section 3 shall
continue after termination of my employment with the
Company.
3.3. Additional Covenants . I
acknowledge the highly competitive nature of the industry in which
the Company is involved, and I acknowledge that: my services to the
Company will be special and unique; my work for the Company will
allow me access to the Company Confidential Information, including
trade secrets, and customers; the Company’s business is
conducted throughout the United States and over the Internet and
World Wide Web, enabling the Company and me to regularly provide
services to customers nationwide; the Company would not have
entered into this Agreement but for the covenants and agreements
contained in this Section 3; and the agreements and covenants
contained in this Section 3 are reasonable and are necessary
and essential to protect the business, trade secrets, Company
Confidential Information, and goodwill of the Company. I further
acknowledge that this Agreement does not restrict my ability to be
gainfully employed, and I acknowledge that the geographic
boundaries, scope of prohibited activities, and time duration of
this subsection 3.3 are reasonable in nature and no broader than
are necessary to protect the legitimate business interests of the
Company. I agree not to raise any objection to the reasonableness
of this subsection 3.3 in any action or proceeding to enforce the
terms of this Agreement. In order to induce the Company to enter
into this Agreement, I covenant and agree that:
(a) During my employment and for
twelve (12) months following the termination of my employment
with Company, whether voluntary or involuntary, without
Company’s written express consent, I will not directly or
indirectly solicit (other than on behalf of the Company) business
or contracts for any products or services of the type provided,
developed or under development by the Company during my employment
by the Company, from or with (1) any person or entity which
was a customer or sales agent of the Company for such products or
services as of, or within one year prior to the my date of
termination with the Company, or (2) any prospective customer
or sales agent which the Company was soliciting as of, or within
one year prior to my termination. Additionally, during my
employment and for twelve (12) months thereafter, I will not
directly or indirectly contract with any such customer, prospective
customer, sales agent or prospective sales agent for any product or
service of the type provided, developed or which was under
development by the Company during my employment with the Company. I
will not during my employment or for twelve (12) months
thereafter knowingly interfere or attempt to interfere with any
transaction, agreement or business relationship in which the
Company was involved or was contemplating during my employment with
the Company, including but not limited to relationships with sales
agents, independent sales agents, customers, prospective customers,
contractors, vendors, service providers, and suppliers.
(b) During my employment and for 12
months after my employment with Company is terminated for any
reason, I agree not to, directly or indirectly, solicit,
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recruit, or hire, or in any manner assist in the
hiring, solicitation or recruitment of: (1) any of the
Company’s employees, or any individuals who were employed by
the Company within twelve (12) months of my termination of
employment; or (2) any of the Company’s sales agents or
the independent sales agents of any affiliate of the Company, or
any person or entity which was a Company sales agent or independent
sales agent of a Company affiliate within twelve (12) months
prior to the termination of my employment with the
Company.
(c) To prevent the misuse,
misappropriation, or unauthorized disclosure of Company’s
trade secrets, including Company Confidential Information, and to
protect the goodwill of Company, I will not, during my employment
and for twelve (12) months after termination of my employment,
without Company’s express written consent, directly or
indirectly, individually or as an officer, director, employee,
shareholder (except if as a shareholder of less than 1% of a
publicly traded company), consultant, contractor, partner, joint
venturer, agent, equity owner, or in any capacity whatsoever,
engage in or promote any business or contemplated business that is
competitive with the “Company’s Business.”
“Company’s Business” is the research,
development, manufacture, sale and/or licensing of products and
services related to communications, integrated communications,
long-distance services, Internet access, eCommerce, hardware and
software (whether owned or licensed by the Company), and data
services, including but not limited to local, domestic, and
international long-distance services, local exchange services,
wholesale long-distance services, IP/ISP services, high-speed
Internet access, DSL services, eCommerce, web hosting, ASP
services, data networking, sys
