I just finished drafting an Employment Agreement for June Lee. I spoke with some of the board members of Ellis-Elan Jewelry Design, LLC and they don’t want June to be able to walk away from the LLC and to use all the information she learned at the LLC to start a competing company. Can you look at Sections 8 and 9 of the attached agreement? Let me know if you have any comments to what I’ve drafted. Also, if you think the draft agreement could be improved, please edit it to improve it in whatever way you can.
(a) Executive acknowledges that prior to and during the Employment Term, Executive has been and will be given access to trade secrets and confidential information in written, oral, electronic, and other form regarding the Company and its Affiliates and their respective businesses, equipment, products, services, marketing strategies, and employees (“Confidential Information”).
(b) “Confidential Information” shall not include information that is already in or subsequently enters the public domain, other than as a result of any direct or indirect action or inaction by Executive and information that is approved for release by the Company or its Affiliates.
(c) Executive shall use Confidential Information only for purposes of carrying out his duties for the Company and its Affiliates, and not for any other purpose, including, without limitation, not in any way or for any purpose detrimental to the Company or its 4 Affiliates. During the Employment Term and for a period of two years after the Termination Date, Executive shall not at any time use for himself or others, directly or indirectly, any Confidential Information and, except as required by law, Executive shall not disclose Confidential Information, directly or indirectly, to any other Person.
(d) All physical property and all notes, memoranda, files, records, writings, documents, and other materials of any and every nature, written or electronic, that Executive prepares or receives in the course of his association with the Company or its Affiliates and that relate to or are useful in any manner to the Business or any other business now or hereafter conducted by the Company or its Affiliates, are and shall remain the sole and exclusive property of the Company and its Affiliates, as applicable. Executive shall not remove from the premises of the Company or its Affiliates any such physical property, the original or any reproduction of any such materials, or the information contained therein, except for the purposes of carrying out his duties hereunder, and Executive shall turn over to the Company immediately on the termination of his employment all such physical property, materials, and information in his possession or under his custody or control.
9. Non-Competition; Non-Solicitation.
(a) During her employment by the Company and for two years thereafter, Executive shall not:
(i) Directly or indirectly engage in any business activities, as an owner, director, officer, agent, employee, consultant or otherwise, in competition with the Company or any of its Affiliates.
(ii) Directly or indirectly solicit, or attempt to persuade, any Customer or supplier of the Company or any of its Affiliates to reduce the amount of or cease doing business with the Company or any of its Affiliates.
(iii) Directly or indirectly solicit, or attempt to persuade, any employee of the Company to leave the employment of the Company or any of its Affiliates.
(b) The provisions of this Section 9 shall be modified without any action on the part of the parties hereto to conform to the law as determined by the order or any court or other tribunal of competent jurisdiction finding all or any portion of such provisions to be invalid.