{"id":40159,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/noncompetition-confidentiality-and-nonsolicitation-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"noncompetition-confidentiality-and-nonsolicitation-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/noncompetition-confidentiality-and-nonsolicitation-agreement.html","title":{"rendered":"Noncompetition, Confidentiality, and Nonsolicitation Agreement – Office Depot Inc."},"content":{"rendered":"

ASSOCIATE NON-COMPETITION, CONFIDENTIALITY
\n<\/u><\/strong><\/p>\n

AND NON-SOLICITATION AGREEMENT <\/u><\/strong><\/p>\n

THIS AGREEMENT between Office Depot, Inc., a corporation headquartered in
\nFlorida, (“Office Depot<\/u>“) and Neil R. Austrian (“Associate<\/u>“) is
\neffective as of the Associate153s start date with Office Depot.<\/p>\n

For good and valuable consideration provided to Associate, including but not
\nlimited to the compensation and benefits to be paid to Associate, the receipt
\nand sufficiency of which are hereby acknowledged, Associate agrees as follows:\n<\/p>\n

1. Confidential Information<\/u>. Associate acknowledges that as a result
\nof Associate153s employment with Office Depot, Associate has had or may have
\naccess to confidential, proprietary, and\/or non-public information concerning
\nthe business or affairs of Office Depot or its subsidiaries, including but not
\nlimited to information concerning customers, vendors, contracts or arrangements
\nwith customers or vendors (including special terms and deals), employees,
\nmarketing plans, business plans, operations, pricing, promotions, and business
\nstrategies and methods (collectively, “Confidential Information<\/u>“).
\nAccordingly, both during and after employment with Office Depot (regardless how
\nit ends), Associate shall not use or disclose to any third party any
\nConfidential Information for any reason other than as intended within the scope
\nof Associate153s employment or as approved by Office Depot in writing. Upon
\nseparation of employment for any reason or at any other time upon request of
\nOffice Depot, Associate shall immediately deliver to Office Depot all documents,
\nmaterials, and data (and copies thereof), in tangible, electronic, or intangible
\nform, relating to the business of Office Depot or any of its subsidiaries.<\/p>\n

2. Inventions, Patents, and Copyrights<\/u>. Associate acknowledges that
\nall inventions, innovations, improvements, developments, methods, designs,
\nanalyses, drawings, reports, and all similar or related information (whether or
\nnot patentable) which relate to Office Depot153s or any of its subsidiaries153
\nactual or anticipated business, research and development, or existing or future
\nproducts or services, and which are conceived, developed, made, or reduced to
\npractice by Associate, alone or with others, while employed by Office Depot
\n(collectively, “Work Product<\/u>“) belong to Office Depot. Associate hereby
\nassigns to Office Depot all right, title, and interest in and to such Work
\nProduct. Associate shall promptly disclose such Work Product to Office Depot and
\nperform all actions reasonably requested by Office Depot (whether during or
\nafter employment) to establish and confirm such ownership (including without
\nlimitation the execution of assignments, consents, powers of attorney, and other
\ninstruments). Associate further acknowledges and agrees that all writings and
\ndocumentation of any kind produced by Associate in the course of working for
\nOffice Depot are works made for hire (as that term is defined by U.S. Copyright
\nlaw) and the property of Office Depot, including without limitation any
\ncopyrights in such writings and documentation. To the extent that any such works
\nmay not, by operation of law or otherwise, be a work made for hire, Associate
\nhereby assigns to Office Depot all copyright in such works, whether published or
\nunpublished.<\/p>\n

3. Non-Competition<\/u>.<\/p>\n

(a) Definitions<\/u>.<\/p>\n

\n

“Competitor<\/u>” means office products stores, retailers, direct business
\nto business sales providers, or contract\/commercial stationers, examples of
\nwhich currently include but are not limited to Office Max, Staples, Corporate
\nExpress, P.P.R., Lyreco, W.B. Mason, Impact Office Supplies, and Royal Office
\nProducts; and also includes businesses having a particular product line or
\nservice in competition with an Office Depot product line or service (as long as
\nAssociate153s responsibilities at Office Depot included such product line or
\nservice), examples of which include copy services, shipping services, direct
\nbusiness sales, internet based sales, or particular product lines at businesses
\nsuch as Wal Mart, Target, Best Buy, and FedEx Office; and also includes any
\ninternet or other direct mail or direct marketing company engaged in the sale of
\nbusiness or office products.<\/p>\n

“Non-compete Period<\/u>” means the period of Associate153s employment with
\nOffice Depot and the greater of six months after Associate153s employment ends
\nwith Office Depot (regardless how it ends) or the period of time following the
\nend of Associate153s employment during which Office Depot pays severance to
\nAssociate (or if severance is paid in a lump sum, the period of time
\ncorresponding to the amount of salary paid in a lump sum).<\/p>\n

“Restricted Area<\/u>” means that area necessary to protect Office Depot153s
\nlegitimate business needs. Associate acknowledges that Office Depot does
\nbusiness in all 50 states, Puerto Rico, St. Croix, and other U.S. territories
\nand has direct competitors in all of these areas. Associate further acknowledges
\nthat Office Depot153s Confidential Information needs to be protected in all 50
\nstates, Puerto Rico, St. Croix, and other U.S. territories. Accordingly, for
\nthose Associates whose job responsibilities and access to Confidential
\nInformation are not limited to a specific geographic area, the Restricted Area
\nshall include all 50 states, Puerto Rico, St. Croix, and other U.S. territories.
\nFor all other Associates, the Restricted Area shall be within 150 miles of the
\nlocation(s) where Associate worked for Office Depot within the two years prior
\nto the end of employment with Office Depot.<\/p>\n

(b) Non-Competition Obligations<\/u>. Associate acknowledges that in the
\ncourse of employment with Office Depot, Associate has and will have access to
\nand gain knowledge of the trade secrets and other Confidential Information of
\nOffice Depot and its subsidiaries; Associate has or will have substantial
\nrelationships with Office Depot153s and its subsidiaries153 existing and prospective
\ncustomers; and\/or Associate has or will perform services of special, unique, and
\nextraordinary value to Office Depot. Therefore, during the Non-compete Period,
\nAssociate shall not anywhere in the Restricted Area: (i) own any interest in,
\ncontrol, or participate in any Competitor; or (ii) work for, become employed by,
\nor provide services to (whether as an employee, consultant, independent
\ncontractor, officer, director, or board member) any Competitor where such
\nposition or service is competitive with or otherwise similar to any of
\nAssociate153s positions or services for Office Depot. Nothing shall prohibit
\nAssociate from being a passive owner of not more than 2% of the outstanding
\nstock of any class of a corporation that is publicly traded so long as Associate
\nhas no active participation in the corporation153s business.<\/p>\n

4. Non-Solicitation and Non-Interference<\/u>. During employment and for 12
\nmonths after Associate153s employment ends with Office Depot (regardless how it
\nends), Associate shall not directly or indirectly through another person or
\nentity: (a) induce or solicit any employee of Office Depot or any of its
\nsubsidiaries to leave the employ of Office Depot or such subsidiary or otherwise
\ninterfere with such employee153s relationship with Office Depot or any of its
\nsubsidiaries; provided, however, that nothing shall prohibit Associate from
\ndischarging any employee of Office Depot or such subsidiary as part of
\nAssociate153s regular duties while employed by Office Depot; (b) hire any person
\nwho was an employee of Office Depot or any of<\/p>\n

2<\/p>\n

\n

its subsidiaries during the last six months of Associate153s employment; or (c)
\ninduce or solicit or attempt to influence any Customer, supplier, licensee,
\nlicensor, or franchisee of Office Depot or any of its subsidiaries about whom
\nAssociate has or may have had Confidential Information, or whom Associate, as a
\nresult of his\/her employment with Office Depot, contacted, solicited, or called
\nupon, to (i) cease doing business or change detrimentally its relationship with
\nOffice Depot or such subsidiary, or (ii) provide or purchase goods or services
\nsimilar to the goods or services provided by it to or purchased by it from
\nOffice Depot or such subsidiary. “Customer” means any individual, company, or
\nother entity that has bought, buys, or may purchase or otherwise obtain goods or
\nobtain services from Office Depot or any of its subsidiaries.<\/p>\n

5. Non-Disparagement<\/u>. Associate shall not during and after employment
\nmake any false or disparaging statement regarding Office Depot or any of its
\nsubsidiaries or its or their business, officers, directors, or employees.<\/p>\n

6. Modification<\/u>. If, at the time of enforcement of any of the
\nobligations in paragraphs 1 through 5 above, a court shall hold that the
\nduration, scope, or area restrictions are unreasonable, the parties agree that
\nthe maximum duration, scope, or area reasonable, as determined by the court,
\nshall be substituted and that the court shall enforce the obligations as
\nmodified. Associate agrees that the obligations in paragraphs 1 through 5 above
\nare reasonable.<\/p>\n

7. Enforcement<\/u>. In the event of the breach or a threatened breach by
\nAssociate of any of the obligations in paragraphs 1 through 5 above, Office
\nDepot, in addition to other rights and remedies existing in its favor, may apply
\nto any court for specific performance, temporary, preliminary, and\/or permanent
\ninjunctive relief, or other relief in order to enforce the obligations or
\nprevent any violations of the obligations. In addition, in the event of an
\nalleged breach or violation by Associate of the obligations in paragraphs 3 or
\n4, the Non-compete Period shall be tolled until such breach or violation has
\nbeen cured.<\/p>\n

8. Associate153s Representations<\/u>. Associate represents and warrants to
\nOffice Depot that: (a) Associate153s employment with Office Depot and\/or the
\nexecution, delivery, and performance of this Agreement by Associate do not and
\nshall not conflict with, breach, violate, or cause a default under any contract,
\nagreement, instrument, order, judgment, or decree to which Associate is a party
\nor by which Associate is bound, (b) Associate is not a party to or bound by any
\nemployment agreement, non-compete agreement, confidentiality agreement, or other
\npost-employment obligation with any other person or entity that would limit
\nAssociate153s job duties or obligations with Office Depot in any way, and (c) upon
\nthe execution and delivery of this Agreement to Office Depot, this Agreement
\nshall be the valid and binding obligation of Associate, enforceable in
\naccordance with its terms. Associate agrees to indemnify and hold harmless
\nOffice Depot and its subsidiaries in the event of any claims against Office
\nDepot or its subsidiaries by a third party alleging that Associate has, by
\nvirtue of being employed by Office Depot and\/or entering into this Agreement,
\ncreated a conflict with, breached, violated, or caused a default under any
\ncontract or agreement with, or obligation to, such third party. Office Depot153s
\nright to indemnification shall include without limitation the right to be
\nreimbursed by Associate for its attorneys153 fees and costs. Associate further
\nacknowledges and represents that Associate has had an opportunity to consult
\nwith legal counsel regarding all of the provisions contained in this Agreement
\nand that Associate fully understands its terms and conditions.<\/p>\n

3<\/p>\n

\n

9. Survival<\/u>. This Agreement shall survive and continue in full force
\nin accordance with its terms notwithstanding the separation of Associate153s
\nemployment for any reason. Nothing in this Agreement implies any obligation of
\ncontinued employment of Associate by Office Depot, which employment shall be “at
\nwill” unless otherwise specifically agreed in writing.<\/p>\n

10. Notices<\/u>. Any notice provided for in this Agreement shall be in
\nwriting and shall be either personally delivered, or mailed by first class mail,
\nreturn receipt requested, to the recipient at the address below indicated:<\/p>\n

Notices to Associate<\/u>: Associate153s last address appearing in the
\npayroll\/personnel records of Office Depot.<\/p>\n

Notices to Office Depot<\/u>:<\/p>\n

Office Depot, Inc.<\/p>\n

6600 N. Military Trail<\/p>\n

Boca Raton, Florida 33496<\/p>\n

Attention: Office of the General Counsel<\/p>\n

and<\/p>\n

Office Depot, Inc.<\/p>\n

6600 N. Military Trail<\/p>\n

Boca Raton, Florida 33496<\/p>\n

Attention: Executive Vice President – Human Resources<\/p>\n

or such other address or to the attention of such other person as the
\nrecipient party shall have specified by prior written notice to the sending
\nparty. Any notice under this Agreement shall be deemed to have been given when
\nso delivered or mailed.<\/p>\n

11. Severability<\/u>. Whenever possible, each provision of this Agreement
\nshall be interpreted in such manner as to be effective and valid under
\napplicable law, but if any provision of this Agreement is held to be invalid,
\nillegal, or unenforceable in any jurisdiction (and it is not capable of
\nmodification), it shall be severed and such invalidity, illegality, or
\nunenforceability shall not affect the enforceability of the provision in any
\nother jurisdiction, nor shall it affect the enforceability of any other
\nprovision of this Agreement.<\/p>\n

12. Complete Agreement<\/u>. This Agreement is the complete agreement
\nbetween the parties and supersedes and preempts any prior understandings,
\nagreements, or representations between them, whether written or oral, which may
\nhave related to the specific subject matter that is contained in this Agreement.\n<\/p>\n

13. No Strict Construction<\/u>. The language used in this Agreement is the
\nlanguage chosen by the parties to express their mutual intent, and no rule of
\nstrict construction shall be applied against any party.<\/p>\n

14. Successors and Assigns<\/u>. This Agreement is intended to inure to the
\nbenefit of and be enforceable by Office Depot and its successors and assigns.
\nAssociate may not assign or delegate Associate153s obligations hereunder without
\nthe prior written consent of Office Depot.<\/p>\n

15. Choice of Law; Venue; Waiver of Right to Jury Trial<\/u>. All issues
\nand questions concerning the construction, validity, enforcement, and
\ninterpretation of this Agreement shall be governed by, and construed in
\naccordance with, the laws of the State of Florida, without giving effect to any
\nchoice of law or conflict of law rules or provisions (whether of the State of
\nFlorida or any other jurisdiction) that would cause the application of the laws
\nof any other jurisdiction. Any<\/p>\n

4<\/p>\n

\n

claim or dispute arising out of or relating to this Agreement, including but
\nnot limited to its legality, interpretation, or enforceability, shall be heard
\nand determined exclusively by the Circuit Court of the Fifteenth Judicial
\nCircuit in and for Palm Beach County, Florida, unless federal jurisdiction is
\navailable, in which case the Southern District of Florida, shall have exclusive
\njurisdiction to hear and determine such claim or dispute; provided, however,
\nthat such courts shall not have exclusive jurisdiction if Associate153s principal
\nplace of employment is outside of Florida and Associate153s primary duty is direct
\nsales to customers of Office Depot in a defined territory that does not include
\nFlorida. The parties expressly submit and consent in advance to the jurisdiction
\nof such courts in any action or suit commenced in such court, and each party
\nhereby waives any objection that it may have based upon lack of personal
\njurisdiction, improper venue or forum non conveniens<\/em>. IN ANY
\nSUCH PROCEEDINGS, EACH OF THE PARTIES HEREBY KNOWINGLY AND WILLINGLY WAIVES AND
\nSURRENDERS SUCH PARTY153S RIGHT TO TRIAL BY JURY AND AGREES THAT SUCH LITIGATION
\nSHALL BE TRIED TO A JUDGE SITTING ALONE AS THE TRIER OF BOTH FACT AND LAW, IN A
\nBENCH TRIAL, WITHOUT A JURY.<\/strong><\/p>\n

16. Amendment and Waiver<\/u>. The provisions of this Agreement may be
\namended or waived only with the prior written consent of Office Depot and
\nAssociate, and no course of conduct or failure or delay in enforcing the
\nprovisions of this Agreement shall affect its validity, binding effect, or
\nenforceability.<\/p>\n

* * * * *<\/p>\n

\n

IN WITNESS WHEREOF, Associate has executed this Agreement as of the date
\nwritten below.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/tr>\n
\n

Associate:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Date: May 23, 2011<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

\/s\/ Neil R. Austrian<\/p>\n<\/td>\n<\/tr>\n

\n

Signature<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Neil R. Austrian<\/p>\n<\/td>\n<\/tr>\n

\n

Name (please print)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6<\/p><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8401],"corporate_contracts_industries":[9501],"corporate_contracts_types":[9539,9549],"class_list":["post-40159","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-office-depot-inc","corporate_contracts_industries-retail__misc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__noncompetition"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40159","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40159"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40159"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40159"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40159"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}