CPI Corporation 10-Q 2005
Documents found in this filing:
(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
Confidentiality, Noncompetition and Nonsolicitation Agreement
In consideration of my employment by CPI Corp., a Missouri corporation (the Company), as reflected in the Offer of Employment between myself and the Company dated July 21, 2005, which is attached hereto, I hereby agree as follows:
1. During the term of my employment and thereafter, I agree that all records, data lists, lists of actual or potential customers or suppliers, account information, pricing policies, sales and promotional techniques and practices, services and products, files, reports, notes, strategic or business plans, compilations or other recorded matter and copies or reproductions thereof, relating to the operation and activities of the Company and/or its affiliates which are not generally known to the public or those persons engaged in (a) business(es) similar to that/those conducted by the Company and/or its affiliates and which were made or received by, or which become known to, me during the term of my employment (hereinafter referred to as Confidential Information) are, respectively, the exclusive property of the Company and/or its affiliates and I hold the same as trustee for the Company and/or its affiliates and subject to the respective control of the Company and/or its affiliates. I therefore agree that:
For purposes of this Agreement, an affiliate of the Company means a company which either controls, is controlled by or is under common control with the Company.
(b) Notwithstanding anything stated herein to the contrary, the covenants set forth in this Section 2 will not apply to the passive ownership of up to five percent (5%) of the securities of any publicly-traded corporation listed on a national securities exchange or traded on the over-the-counter markets.
(c) I hereby agree and acknowledge that the duration and scope applicable to the covenant not to compete or solicit described in this Section 2 are fair, reasonable and necessary, that I have received adequate compensation for such obligations, and that these obligations would not prevent me from earning a livelihood. If, however, for any reason any court determines that the restrictions in this Section 2 are not reasonable, that the consideration is inadequate or that I have been prevented from earning a livelihood, such restrictions will be
interpreted, modified or rewritten to include as much of the duration and scope identified in this Section 2 as will render such restrictions valid and enforceable.
(d) The Company and I agree that the provisions of this Section 2 will be enforced pursuant to Section 3 below.
3. I agree that in the event of my breach or violation or attempted breach or violation of Sections 1 and/or 2, the provisions may be enforced by an injunction in a suit in equity, and that a temporary or preliminary injunction or restraining order may be granted immediately upon the commencement of any such suit and without notice. In the event of a breach or violation or attempted breach or violation by me of the provisions of Section 2, I agree that an amount of time equal to the time period during which such a breach or violation exists will be added to the duration of the restrictions in Section 2. The existence of any claim or cause of action I may have against the Company or an affiliate, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement of my obligations hereunder.
4. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable damages for which the remedy at law will be inadequate. I agree and acknowledge that my violation of any of the provisions of this Agreement shall result in a forfeiture by me of any amounts potentially payable under the Plan, whether vested or otherwise.
5. I recognize that this Agreement does not set forth all terms of my employment by the Company and that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to such employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my employment by it at any time, with or without Cause (as such term is defined in the Offer of Employment. The Company hereby acknowledges that, except for the express covenants and conditions set forth herein and in the Offer of Employment, I have not agreed to waive or otherwise relinquish any rights I may otherwise have under applicable employment and/or labor laws or pursuant to other agreements with or policies of the Company, regarding or arising out of the termination of my employment.
6. This Agreement contains the entire understanding and agreement between the parties as to the subject matter hereof and cannot be amended, modified or supplemented in any respect, except by a subsequent written agreement entered into by both parties.
7. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase, consolidation or otherwise. All of the Companys affiliates and all successors and assigns of the Company are third-party beneficiaries of the covenants contained herein. Such restrictive covenants are intended for the benefit of, and may be enforced by, the Companys successors and assigns and any of the Companys affiliates.
8. The Company and I further agree that, in the event of any litigation at law or at equity with regard to the enforcement or interpretation of this Agreement, the prevailing party
shall be entitled to be reimbursed for all reasonable attorneys fees and costs incurred, at trial and through all levels of appeal, as a result of such litigation.
9. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Missouri (regardless of the law that might otherwise govern under applicable Missouri principles of conflicts of laws).
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.