This excerpt taken from the PRSP 8-K filed Sep 21, 2006.
NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION COVENANTS
6.1 Non-Disclosure Obligations. Confidential Information means and includes Employers confidential and/or proprietary information and/or trade secrets that have been and/or will be developed or used and that cannot be obtained readily by third parties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding customers, employees, contractors, and the industry not generally known to the public; strategies, methods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures, pricing, and pricing techniques; information concerning past, current, and prospective customers, investors, and business affiliates (such as contact name, service provided, pricing, type and amount of services used, financial data, and/or other such information); pricing strategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading methodologies and terms; communications information; evaluations, opinions, and interpretations of information and data; marketing and merchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods; training methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and other such confidential or proprietary information. Employee acknowledges that Employers business is highly competitive, that this Confidential Information constitutes a valuable, special, and unique asset used by Employer in its business, and that protection of such Confidential Information against unauthorized disclosure and use is of critical importance to Employer.
Employee agrees that Employee will not, at any time during or after Employees employment with Employer, make any unauthorized disclosure, directly or indirectly, of any Confidential Information of Employer, or third parties, or make any use thereof, directly or indirectly, except in working for Employer. Employee also agrees that Employee shall deliver promptly to Employer at the termination of employment or at any other time at Employers request, without retaining any copies, all documents and other material in Employees possession relating, directly or indirectly, to any Confidential Information or other information of Employer, or Confidential Information or other information regarding third parties, learned as an employee at Employer.
6.2 Non-Competition Obligations. Immediately upon Employees signing of this Agreement, Employer shall provide Employee with Confidential Information. Ancillary to the consideration to be provided pursuant to Section 6.3 hereof, including but not limited to Employers agreement to provide Confidential Information to Employee and Employees agreement not to disclose Confidential Information, and in order to protect the Confidential Information, Employer and Employee agree to the following non-competition provisions.
6.2.1 Employee Obligations. Employee agrees that, during the term of Employees employment with Employer, which may exceed the Term of this Agreement, and for
the periods set forth in Section 6.2.2 below, Employee will not, except as an employee of Employer, in any capacity for Employee or others, directly or indirectly:
(a) compete or engage, anywhere in the geographic area comprised of Houston, Texas and the fifty (50) mile radius surrounding Houston, Texas (the Market Area), in a business similar to that of Employer, or compete or engage in that type of business which Employer has plans to engage in, or any business which Employer has engaged in during the preceding twelve (12) month period if within the twenty-four (24) months before the termination of Employees employment, Employee had access or potential access to information regarding the proposed plans or the business in which Employer engaged;
(b) take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any manner with any partnership, corporation or other business or entity engaging in a business similar to that of Employer anywhere within the Market Area. Notwithstanding the foregoing, the Employee is permitted hereunder to own, directly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution conducting business in the Market Area;
(c) call on, service, or solicit competing business from customers or prospective customers of Employer if, within the twenty-four (24) months before the termination of Employees employment, Employee had or made contact with the customer, or had access to information and files about the customer; or
(d) call on, solicit, or induce any employee of Employer whom Employee had contact with, knowledge of, or association with in the course of employment with Employer to terminate employment from Employer, and will not assist any other person or entity in such activities.
6.2.2 Non-Competition Period. The Non-Competition Obligations set forth in this Section 6.2 shall apply for a period of twenty-four (24) months after the termination of Employees employment with Employer (Non-Competition Period), regardless of whether such termination occurs prior to or following the expiration of the Term of this Agreement.
6.2.3 Use of Confidential Information. Employee agrees that Employees work for Employers competitor during the Non-Competition Period after termination of employment inevitably would lead to Employees unauthorized use of Employers Confidential Information, even if such use is unintentional. Because it would be impossible, as a practical matter, to monitor, restrain, or police Employees use of such Confidential Information other than by Employees not working for a competitor, Employee agrees that restricting such employment as set forth in this Agreement is the narrowest way to protect Employers interests, and the narrowest way of enforcing Employees consideration for the receipt of Employers specialized training and Confidential Information (namely, Employees promise not to use or disclose that Confidential Information and/or specialized training).
6.2.4 Early Resolution Conference. The parties are entering into this Agreement with the understanding that this Agreement is clear and enforceable. If Employee decides to contend that any restriction on activities under this Agreement is not enforceable or
does not apply to an activity Employee intends to pursue, Employee first will notify the Chief Executive Officer of Employer in writing and meet with an Employer representative at least fourteen days before engaging in any activity that foreseeably could fall within the questioned restriction to discuss the resolution of such claims (an Early Resolution Conference). Should the parties not resolve the dispute at the Early Resolution Conference, the parties may pursue legal recourse. Employer and Employee acknowledge and agree that breach of any of the covenants made by Employee herein would cause irreparable injury to Employer, which could not sufficiently be remedied by monetary damages; and, therefore, that Employer shall be entitled to obtain such equitable relief as declaratory judgments; temporary, preliminary, and permanent injunctions; and order of specific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Employer must bring suit to enforce this Agreement, Employer is entitled to recover its attorneys fees and costs related thereto.
6.2.5 Tolling. In the event that Employer shall file a lawsuit in any Court of competent jurisdiction alleging a breach of any of Employees obligations under this Agreement, then any time period set forth in this Agreement, including the time periods set forth above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally is resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the final resolution of any post-judgment appellate proceedings.
6.3 Consideration. In consideration for the above obligations of the Employee, Employer agrees to provide Employee with immediate access to Confidential Information relating to Employers business and to highly specialized training regarding Employers methodologies and business strategies, which will enable Employee to perform his or her job for Employer. Employee also will have immediate access to, or knowledge of, new Confidential Information of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of Employer. In addition, in exchange for Employees promises under this Article VI and in accordance with the terms hereof, Employer will pay Employee a non-competition payment (Non-Competition Payment) of $100,000.
6.4 Enforcement and Legal Remedies. The parties recognize the difficulty of properly measuring the damages which reasonably would accrue by reason of a breach of this covenant of non-competition and therefore agree that the party suffering by reasons of any breach of this Agreement shall be entitled to the equitable remedy of injunctive relief.