{"id":40272,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/post-termination-and-non-compete-agreement-walmart.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"post-termination-and-non-compete-agreement-walmart","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/post-termination-and-non-compete-agreement-walmart.html","title":{"rendered":"Post-Termination and Non-compete Agreement – Walmart"},"content":{"rendered":"

POST-TERMINATION AGREEMENT <\/strong><\/p>\n

AND COVENANT NOT TO COMPETE <\/u><\/strong><\/p>\n

This Post-Termination Agreement and Covenant Not to Compete (this
\n“Agreement”) is entered into as of <\/u> <\/u>,
\n <\/u> by and between Wal-Mart Stores, Inc., its subsidiaries and
\naffiliates (collectively, “Walmart”) and
\n <\/u> (“Associate”).<\/p>\n

RECITALS <\/strong><\/p>\n

WHEREAS<\/strong>, Walmart proposes that Associate: (a) be permitted
\nto continue Associate153s at will employment with Walmart; and (b) receive a
\nrestricted stock award of $ <\/u> of Walmart shares of
\ncommon stock (the “Restricted Stock Award”); and<\/p>\n

WHEREAS<\/strong>, as consideration for and as a condition of:
\n(a) Associate continuing Associate153s at will employment with Walmart; and
\n(b) receiving the Restricted Stock Award (collectively, the “Special Items”),
\nAssociate is required to execute and deliver this Agreement to Walmart; and<\/p>\n

WHEREAS,<\/strong> the parties agree that this Agreement shall
\nsupersede and replace in its entirety the Restricted Stock Grant,
\nPost-Termination Agreement and Covenant Not to Compete between the Associate and
\nWalmart dated <\/u>, as amended by the Amendment to
\nAgreement between the Associate and Walmart dated <\/u>
\n(collectively, the “Post-Termination Agreement”).<\/p>\n

AGREEMENT <\/strong><\/p>\n

NOW, THEREFORE,<\/strong> in consideration of the premises and the
\nacknowledgments, covenants, representations, warranties and agreements contained
\nherein and for other good and valuable consideration, including but not limited
\nto the Special Items being conveyed to Associate by Walmart, the receipt and
\nsufficiency of which is hereby acknowledged, the parties hereto agree as
\nfollows:<\/p>\n

1.<\/strong> ACKNOWLEDGMENTS.<\/strong> As part of this
\nAgreement, the parties specifically acknowledge that:<\/p>\n

(A) Walmart is a major retail operation, with stores located throughout the
\nUnited States, territories of the United States and in certain foreign
\ncountries;<\/p>\n

(B) Associate has served as <\/u>
\nfor a number of years, which appointment was made by the Walmart Board of
\nDirectors and which position is a key officer position appointed by the Walmart
\nBoard of Directors;<\/p>\n

\n

(C) As an essential part of its business, Walmart has cultivated, established
\nand maintained long-term customer and vendor relationships and goodwill and
\ncompetitive advantages, which are difficult to develop and maintain, have
\nrequired and continue to require a significant investment of time, effort, and
\nexpense, and that can suffer significantly and irreparably upon the departure of
\nkey officers, regardless of whether the officer has been personally involved in
\ndeveloping or maintaining the relationships, goodwill or competitive advantages;\n<\/p>\n

(D) In the development of its business, Walmart has expended a significant
\namount of time, money, and effort in developing, maintaining, and protecting
\nprivate, sensitive, confidential, proprietary, and trade secret information
\nincluding but not limited to, information regarding Walmart153s products or
\nservices, strategies, research and development efforts, logistics,
\ntransportation, selling and delivery plans, geographic markets, developing or
\npotential geographic markets, developing or potential product markets, mergers,
\nacquisitions, divestitures, data, business methods, computer programs and
\nrelated source and object code, supplier and customer relationships, contacts
\nand information, methods or sources of product manufacture, know-how, product or
\nservice cost or pricing, personnel allocation or organizational structure,
\nbusiness, marketing, development and expansion or contraction plans, information
\nconcerning the legal or financial affairs of Walmart, any other non-public
\ninformation, and any other information protected by the Nondisclosure and
\nRestricted Use Agreement executed by Associate (collectively, “Confidential
\nInformation”), the disclosure or misuse of which could cause irreparable harm to
\nWalmart153s business, anticipated business, and its competitive position in the
\nretail marketplace;<\/p>\n

(E) Associate has had access to such Confidential Information in Associate153s
\ncurrent key officer position that would be of considerable value to Walmart153s
\nglobal and domestic competitors and potential competitors and Associate will
\ncontinue to have access to Confidential Information that would be of
\nconsiderable value to Walmart153s global and domestic competitors and potential
\ncompetitors; and<\/p>\n

(F) Associate acknowledges that Walmart is entitled to take appropriate steps
\nto ensure: (i) that its associates do not misappropriate or make any other
\nimproper use of Confidential Information; (ii) that no individual associate,
\ncompetitor or potential competitor gains an unfair, competitive advantage over
\nWalmart; and (iii) that its competitors and potential competitors do not
\nimproperly gain access to or make any use of Confidential Information in their
\nefforts to compete against, or cause harm to, Walmart.<\/p>\n

2. TRANSITION PAYMENTS.<\/strong> For purposes of this Agreement, the
\nterm “Transition Period” means a period of two (2) years from the effective date
\nof Associate153s termination of employment with Walmart. If Walmart terminates
\nAssociate153s employment, Walmart will pay Associate during the Transition Period
\nan amount equal to Associate153s base salary at the rate in effect on the date of
\ntermination (“Transition Payments”), subject to such withholding as may be
\nrequired by law and subject to the conditions set forth in this Section 2.
\nTransition Payments will commence and be paid at the times and in the amounts
\nprovided in Section 2(E).<\/p>\n<\/p>\n

2<\/p>\n

\n

(A) Transition Payments will not be paid if Associate is terminated as the
\nresult of Associate153s violation of any Walmart policy.<\/p>\n

(B) No Transition Payments will be paid if Associate voluntarily resigns or
\nretires from employment with Walmart.<\/p>\n

(C) Given the availability of other programs designed to provide financial
\nprotection in such circumstances, Transition Payments will not be paid under
\nthis Agreement if Associate dies or becomes disabled. If Associate dies during
\nthe Transition Period, Transition Payments will cease, and Associate153s heirs
\nwill not be entitled to the continuation of such payments. Transition Payments
\nwill not be affected by Associate153s disability during the Transition Period.\n<\/p>\n

(D) Associate153s violation of the obligations under Sections 4, 5 or 6, below,
\nor any other act that is materially harmful to Walmart153s business interests
\nduring the Transition Period, will result in the immediate termination of the
\nTransition Payments, the recovery of the Transition Payments already made, and
\nany other remedies that may be available to Walmart.<\/p>\n

(E) Transition Payments will be paid as follows:<\/p>\n

(i) The first Transition Payment shall be an amount equal to six months of
\nthe Associate153s base salary, less applicable withholding, and shall be paid
\nwithin thirty (30) days following termination; and<\/p>\n

(ii) Subsequent Transition Payments shall commence on the first regularly
\nscheduled pay period following six (6) months after Associate153s termination and
\nshall be made during each regularly scheduled pay period thereafter during the
\nTransition Period. Each Transition Payment shall be the amount which would have
\ncontinued as part of Associate153s regular base salary, less applicable
\nwithholding, and shall be made in the regularly scheduled payroll cycle, subject
\nto the terms and conditions of this Agreement.<\/p>\n

(F) Receipt of Transition Payments will not entitle Associate to participate
\nduring the Transition Period in any other incentive, restricted stock,
\nperformance share, stock option, stock incentive, profit sharing, management
\nincentive or other associate benefit plans or programs maintained by Walmart;
\nexcept, that, Associate will be entitled to participate in such plans or
\nprograms to the extent that the terms of the plan or program provide for
\nparticipation by former associates. Such participation, if any, shall be
\ngoverned by the terms of the applicable plan or program.<\/p>\n

3. BENEFITS.<\/strong> Associate will be eligible for all other
\npayments and benefits accrued and owing at the time of termination.
\nParticipation in all other benefit programs available to current associates will
\nend on the effective date of Associate153s termination, subject to Associate153s
\nrights under COBRA to continue group medical and dental coverage for eighteen
\n(18) months, pursuant to the terms of COBRA, which are currently extended to
\nterminating Walmart associates.<\/p>\n<\/p>\n

3<\/p>\n

\n

4. COVENANT NOT TO COMPETE.<\/strong> Due to the strategic, sensitive
\nand far-reaching nature of the Associate153s current position at Walmart, and the
\nConfidential Information to which the Associate is and has been exposed,
\nAssociate agrees, promises, and covenants that:<\/p>\n

(A) For a period of two (2) years from the date on which Associate153s
\nemployment with Walmart terminates, and regardless of the cause or reason for
\nsuch termination, Associate will not directly or indirectly:<\/p>\n

(i) own, manage, operate, finance, join, control, advise, consult, render
\nservices to, have a current or future interest in, or participate in the
\nownership, management, operation, financing, or control of, or be employed by or
\nconnected in any manner with, any Competing Business as defined below in
\nSection 4(B)(i) and\/or any Global Retail Business as defined below in
\nSection 4(B)(ii); and\/or<\/p>\n

(ii) participate in any other activity that risks the use or disclosure of
\nConfidential Information either overtly by the Associate or inevitably through
\nthe performance of such activity by the Associate; and\/or<\/p>\n

(ii) solicit for employment, hire or offer employment to, or otherwise aid or
\nassist any person or entity other than Walmart in soliciting for employment,
\nhiring, or offering employment to, any Officer, Officer Equivalent or Management
\nAssociate of Walmart, or any of its subsidiaries or affiliates.<\/p>\n

(B) (i) For purposes of this Agreement, the term “Competing Business” shall
\ninclude any general or specialty retail, grocery, wholesale membership club, or
\nmerchandising business, inclusive of its respective parent companies,
\nsubsidiaries and\/or affiliates that: (a) sells goods or merchandise at retail to
\nconsumers and\/or businesses (whether through physical locations, via the
\ninternet or combined) or has plans to sell goods or merchandise at retail to
\nconsumers and\/or businesses (whether through physical locations, via the
\ninternet or combined) within twelve (12) months following Associate153s last day
\nof employment with Walmart in the United States; and (b) has gross annual
\nconsolidated sales volume or revenues attributable to its retail operations
\n(whether through physical locations, via the internet or combined) equal to or
\nin excess of U.S.D. $5 billion.<\/p>\n

(ii) For purposes of this Agreement, the term “Global Retail Business” shall
\ninclude any general or specialty retail, grocery, wholesale membership club, or
\nmerchandising business, inclusive of its respective parent companies,
\nsubsidiaries and\/or affiliates, that: (a) in any country or countries outside of
\nthe United States in which Walmart conducts business or intends to conduct
\nbusiness in the twelve (12) months following Associate153s last day of employment
\nwith Walmart, sells goods or merchandise at retail to consumers and\/or
\nbusinesses (whether through physical locations, via the internet or combined);
\nand (b) has gross annual consolidated sales volume or revenues attributable to
\nits retail operations (whether through physical locations, via the internet or
\ncombined) equal to or in excess of U.S.D. $5 billion in any country pursuant to
\n(B)(ii)(a) or in the aggregate equal to or in excess of U.S.D. $5 billion in any
\ncountries taken together pursuant to (B)(ii)(a) when no business in any one
\ncountry has annual consolidated sales volume or revenues attributable to its
\nretail operations equal to or in excess of U.S.D. $5 billion.<\/p>\n<\/p>\n

4<\/p>\n

\n

(iii) For purposes of this Agreement, the term “Management Associate” shall
\nmean any domestic or international associate holding the title of “manager” or
\nabove.<\/p>\n

(iv) For purposes of this Agreement, the term “Officer” shall mean any
\ndomestic Walmart associate who holds a title of Vice President or above.<\/p>\n

(v) For purposes of this Agreement, the term “Officer Equivalent” shall mean
\nany non-U.S. Walmart associate who Walmart views as holding a position
\nequivalent to an officer position, such as managers and directors in
\ninternational markets, irrespective of whether such managers and directors are
\non assignment in the U.S.<\/p>\n

(C) Ownership of an investment of less than the greater of $25,000 or 1% of
\nany class of equity or debt security of a Competing Business and\/or a Global
\nRetail Business will not be deemed ownership or participation in ownership of a
\nCompeting Business and\/or a Global Retail Business for purposes of this
\nAgreement.<\/p>\n

(D) The covenant not to compete contained in this Section 4 shall bind
\nAssociate, and shall remain in full force and effect, regardless of whether
\nAssociate qualifies, or continues to remain eligible, for the Transition
\nPayments described in Section 2 above. Termination of the Transition Payments
\npursuant to Section 2 will not release Associate from Associate153s obligations
\nunder this Section 4.<\/p>\n

5. FUTURE ASSISTANCE. <\/strong>Associate agrees to provide reasonable
\nassistance and cooperation to Walmart in connection with any agency
\ninvestigation, litigation or similar proceedings that may exist or may arise
\nregarding events as to which Associate has knowledge by virtue of Associate153s
\nemployment with Walmart. Walmart will compensate Associate for reasonable
\ntravel, materials, and other expenses incidental to any such support Associate
\nmay provide to Walmart, at Walmart153s request.<\/p>\n

6. PRESERVATION OF CONFIDENTIAL INFORMATION.<\/strong> Associate will
\nnot at any time, directly or indirectly, use or disclose any Confidential
\nInformation obtained during the course of Associate153s employment with Walmart
\nand following the Associate153s termination of employment with Walmart, except as
\nmay be authorized by Walmart.<\/p>\n

7. REMEDIES FOR BREACH.<\/strong> The parties shall each be entitled
\nto pursue all legal and equitable rights and remedies to secure performance of
\ntheir respective obligations and duties under this Agreement, and enforcement of
\none or more of these rights and remedies will not preclude the parties from
\npursuing any other rights and remedies. Associate acknowledges that a breach of
\nthe provisions of Sections 4 through 6, above, could result in substantial and
\nirreparable damage to Walmart153s business, and that the restrictions contained in
\nSections 4 through 6 are a reasonable attempt by Walmart to protect its rights
\nand to safeguard its Confidential Information. Associate expressly agrees that
\nupon a breach or a threatened breach of the provisions of Sections 4 through 6,
\nWalmart shall be entitled to injunctive relief to restrain such violation, and
\nAssociate hereby expressly consents to the entry of such temporary, preliminary,
\nand\/or permanent injunctive relief, as may be necessary to enjoin the violation
\nor threatened violation of Sections 4 through 6. With respect to any breach of
\nthis Agreement by Associate, Associate agrees to indemnify and hold Walmart
\nharmless from and against any and all loss, cost, damage, or expense, including,
\nbut not limited to, attorneys153 fees, incurred by Walmart, and to return
\nimmediately to Walmart all of the monies previously paid to Associate by Walmart
\nunder this Agreement; provided, however, that such repayment shall not
\nconstitute a waiver by Walmart of any other remedies available under this
\nSection or by law.<\/p>\n<\/p>\n

5<\/p>\n

\n

8. SEVERABILITY.<\/strong> In the event that a court of competent
\njurisdiction shall determine that any portion of this Agreement is invalid or
\notherwise unenforceable, the parties agree that the remaining portions of the
\nAgreement shall remain in full force and effect. The parties also expressly
\nagree that if any portion of the covenant not to compete set forth in Section 4
\nshall be deemed unenforceable, then the Agreement shall automatically be deemed
\nto have been amended to incorporate such terms as will render the covenant
\nenforceable to the maximum extent permitted by law.<\/p>\n

9. NATURE OF THE RELATIONSHIP.<\/strong> Nothing contained in this
\nAgreement shall be deemed or construed to constitute a contract of employment
\nfor a definite term. The parties acknowledge that Associate is not employed by
\nWalmart for a definite term, and that either party may sever the employment
\nrelationship at any time and for any reason not otherwise prohibited by law.\n<\/p>\n

10. ENTIRE AGREEMENT.<\/strong> This document, along with the most
\nrecent Non-Disclosure and Restricted Use Agreement executed by and between the
\nparties (the “Ancillary Agreement”), contain the entire understanding and
\nagreement between Associate and Walmart regarding the subject matter of this
\nAgreement and the Ancillary Agreement. This Agreement, together with the
\nAncillary Agreement, supersede and replace any and all prior understandings or
\nagreements between the parties regarding this subject, including the
\nPost-Termination Agreement, and no representations or statements by either party
\nshall be deemed binding unless contained herein or therein.<\/p>\n

11. MODIFICATION.<\/strong> This Agreement may not be amended,
\nmodified, or altered except in a writing signed by both parties or their
\ndesignated representatives.<\/p>\n

12. SUCCESSORS AND ASSIGNS.<\/strong> This Agreement will inure to the
\nbenefit of, and will be binding upon, Walmart, its successors and permitted
\nassigns, and on Associate and Associate153s heirs, successors, and permitted
\nassigns. No rights or obligations under this Agreement may be assigned to any
\nother person without the express written consent of all parties hereto.<\/p>\n<\/p>\n

6<\/p>\n

\n

13. COUNTERPARTS.<\/strong> This Agreement may be executed in
\ncounterparts, in which case each of the two counterparts will be deemed to be an
\noriginal.<\/p>\n

14. GOVERNING LAW AND VENUE.<\/strong> This Agreement shall be
\ngoverned by, and construed in accordance with, the laws of the State of
\nDelaware, without regard to Delaware law concerning the conflicts of law. The
\nparties agree that any action relating to the interpretation, validity, or
\nenforcement of this Agreement shall be brought in the courts of the State of
\nDelaware, County of New Castle, or in the United States District Court of
\nDelaware, and the parties hereby expressly consent to the jurisdiction of such
\ncourts and agree that venue is proper in those courts. The parties do hereby
\nirrevocably: (a) submit themselves to the personal jurisdiction of such courts;
\n(b) agree to service of such courts153 process upon them with respect to any such
\nproceeding; (c) waive any objection to venue laid therein; and (d) consent to
\nservice of process by registered mail, return receipt requested. Associate
\nfurther agrees that in any claim or action involving the execution,
\ninterpretation, validity, or enforcement of this Agreement, Associate will seek
\nsatisfaction exclusively from the assets of Walmart and will hold harmless all
\nof Walmart153s individual directors, officers, employees, and representatives.\n<\/p>\n

15. STATEMENT OF UNDERSTANDING.<\/strong> By signing below, Associate
\nacknowledges: (i) that Associate has received a copy of this Agreement,
\n(ii) that Associate has read the Agreement carefully before signing it,
\n(iii) that Associate has had ample opportunity to ask questions concerning the
\nAgreement and has had the opportunity to discuss the Agreement with legal
\ncounsel of Associate153s own choosing, and (iv) that Associate understands the
\nrights and obligations under this Agreement and enters into this Agreement
\nvoluntarily.<\/p>\n

IN WITNESS WHEREOF<\/strong>, the parties hereto have executed this
\nAgreement on the date first above written.<\/p>\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

WAL-MART STORES, INC.<\/p>\n<\/td>\n

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

[Name of Associate]<\/p>\n<\/td>\n<\/tr>\n

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

By:<\/p>\n<\/td>\n

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

Name:<\/p>\n<\/td>\n

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

Title:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

7<\/p>\n

\n

SCHEDULE TO EXHIBIT <\/strong><\/p>\n

This Schedule of Named Executive Officers Who Have Executed a
\nPost-Termination Agreement and Covenant Not to Compete is included pursuant to
\nInstruction 2 of Item 601(a) of Regulation S-K for the purposes of setting forth
\nthe material details in which the specific agreements differ from the form of
\nagreement filed herewith as Exhibit 10(p).<\/p>\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Named Executive Officer<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Date of Agreement<\/strong><\/p>\n<\/td>\n

<\/td>\nValue of Restricted<\/strong>
\nStock Award
\nGranted in
\nConnection with
\nAgreement<\/strong><\/td>\n		<\/td>\n<\/tr>\n
\n

William S. Simon<\/p>\n<\/td>\n

<\/td>\n\n

March 30, 2010<\/p>\n<\/td>\n

<\/td>\n\n

$<\/p>\n<\/td>\n

\n

2,000,000<\/p>\n<\/td>\n

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

C. Douglas McMillon<\/p>\n<\/td>\n

<\/td>\n\n

January 19, 2010<\/p>\n<\/td>\n

<\/td>\n\n

$<\/p>\n<\/td>\n

\n

2,000,000<\/p>\n<\/td>\n

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

Eduardo Castro-Wright<\/p>\n<\/td>\n

<\/td>\n\n

January 19, 2010<\/p>\n<\/td>\n

<\/td>\n\n

$<\/p>\n<\/td>\n

\n

2,000,000<\/p>\n<\/td>\n

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

Charles M. Holley, Jr.<\/p>\n<\/td>\n

<\/td>\n\n

March 24, 2010<\/p>\n<\/td>\n

<\/td>\n\n

$<\/p>\n<\/td>\n

\n

1,000,000<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

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