CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is entered into by and between International Paper
Company (together with its subsidiaries and affiliates, "International Paper"),
a New York corporation, and_____________________, the undersigned employee of
International Paper, to protect the valuable competitive information and
business relationships of International Paper.
International Paper and the undersigned agree as follows:
1. Definitions
(a) As used in this Agreement, the term "Protected Information"
shall mean all information, documents or materials, owned, developed or
possessed by International Paper, or any employee while in the employ of
International Paper, whether in tangible or intangible form, which (i)
International Paper takes reasonable measures to maintain in secrecy, and (ii)
pertains in any manner to International Paper's business, including but not
limited to Research and Development; customers or prospective customers or
strategies or data for identifying and satisfying their needs; present or
prospective business relationships; present, short term, or long term strategic
plans; acquisition candidates; plans for corporate restructuring; products under
consideration or development; cost, margin or profit information; data from
which any of the foregoing types of information could be derived; human
resources (including compensation information and internal evaluations of the
performance, capability and potential of International Paper employees);
business methods, data bases and computer programs.
Research and Development shall include, but not be limited to all short term and
long term basic, applied and developmental research and technical assistance and
specialized research support of customers or active prospects of International
Paper operating divisions. Research and Development includes information
relating to manufacturing and converting processes, methods, techniques and
equipment and the improvements and innovations relating to same; quality control
procedures and equipment; identification, selection, generation and propagation
of tree species having improved characteristics; forest resource management;
innovation and improvement to manufacturing and converting processes such as
chipping, pulping, bleaching, chemical recovery, papermaking, coating and
calendaring processes and in equipment for use in such processes; reduction and
remediation of environmental discharges; minimization or elimination of solid
and liquid waste; reuse and optimization of raw materials in manufacturing
processes; recycling and manufacture of consumer and industrial packaging and
paper products; recycling of other paper or pulp products; energy conservation;
computer software and applications of computer controls to manufacturing and
quality control operations and to inventory control; radio frequency
identification and its use in paper and packaging products; and product and
process improvement, development or evaluation. Research and Development
includes information about methods, techniques, products, equipment, and
processes which International Paper has
learned do not work or do not provide beneficial results ("negative know-how")
as well as those which do work or which provide beneficial results.
The fact that individual elements of the information that constitutes
Protected Information may be generally known does not prevent an integrated
compilation of information, whether or not reduced to writing, from being
Protected Information if that integrated whole is not generally known.
(b) As used in this Agreement, the term "Unauthorized" shall
mean: (i) in contravention of International Paper's policies or procedures; (ii)
otherwise inconsistent with International Paper's measures to protect its
interests in the Protected Information; (iii) in contravention of any lawful
instruction or directive, either written or oral, of an International Paper
employee empowered to issue such instruction or directive; (iv) in contravention
of any duty existing under law or contract; or (v) to the detriment of
International Paper.
2. Confidentiality Provisions
(a) I acknowledge and agree that by reason of my employment with
International Paper as a senior level executive, I have been and will be
entrusted with and have developed and will develop Protected Information, that
such Information is valuable and useful to International Paper, that it would
also be valuable and useful to competitors and others who do not know it, and
that such information constitutes trade secrets of International Paper. While an
employee or consultant of International Paper, or at any time thereafter,
regardless of the reasons for leaving International Paper, I agree not to use or
disclose, directly or indirectly, any Protected Information in any Unauthorized
manner or for any Unauthorized purpose unless such information shall have become
generally known in the relevant industry or independently developed with no
assistance from me. Further, promptly upon termination, for any reason, of my
employment with International Paper, or upon the request of International Paper,
I agree to deliver to International Paper all property and materials and copies
thereof within my possession or control which belong to International Paper or
which contain Protected Information and to permanently delete all Protected
Information from any computers or other electronic storage media I own or use.
(b) While an employee of International Paper, and after
termination of my employment with International Paper for any reason, I agree
not to take any actions which would constitute or facilitate the Unauthorized
use or disclosure of Protected Information, including transmitting or posting
such Protected Information on the Internet, anonymously or otherwise. I further
agree to take all reasonable measures to prevent the Unauthorized use and
disclosure of Protected Information and to prevent Unauthorized persons or
entities from obtaining or using Protected Information.
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3. Non-Compete Provisions
(a) I acknowledge and agree that the business of International
Paper and its customers is worldwide in scope, that International Paper's
competitors and customers are located throughout the world, that International
Paper's strategic planning and research and development activities have
application throughout the world and are for the benefit of customers and
International Paper's business throughout the world, that use or disclosure of
Protected Information or prohibited competition anywhere in the world will
irreparably injure International Paper, and that the prohibitions on competition
described below are for those reasons worldwide in scope.
(b) While an employee or consultant of International Paper, I
agree not to compete or prepare to compete in any manner, either directly or
indirectly, whether for compensation or otherwise, with International Paper, or
to assist any other person or entity to compete or to prepare to compete with
International Paper.
(c) After the termination of my employment for any reason, I
agree that for a period of one year (the "non-compete period") following such
termination I will not compete with International Paper:
(i) by producing, developing, selling or marketing, or
assisting others to produce, develop, sell or market,
(ii) by engaging in any sales, marketing, research and
development or managerial duties (including, without
limitation, financial, human resources, strategic
planning, or operational duties) for, whether as an
employee, consultant, or otherwise, any entity which
produces, develops, sells or markets,
(iii) by owning, managing, operating, controlling or
consulting for any entity which produces, develops,
sells or markets,
(iv) by soliciting the business of any actual or active
prospective customers of International Paper for
any product, process, or service which is competitive with those products,
processes, or services of International Paper, whether existing or contemplated
for the future, on which I have worked, or concerning which I have in any manner
acquired knowledge or Protected Information about, during the twenty four (24)
months preceding termination of my employment. It shall not be a violation of
this provision for me to accept employment with a non-competitive division or
business unit of a multi-divisional company some of whose divisions or business
units are competitors of International Paper, so long as I do not engage in,
oversee, provide input or information regarding, or participate in any manner in
the activities described in this paragraph as they relate to the
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division or business unit which is a competitor of International Paper. I shall
not assist others in engaging in activities which I am not permitted to take.
(d) I agree that in the event that I am unable, despite diligent
search, to obtain employment during the non-compete period consistent with my
experience and education solely by reason of Section 3 of this Agreement, I
shall so notify International Paper in writing, describing in detail the efforts
I have made to secure employment that does not conflict with my non-compete
obligations. Upon receipt and reasonable verification of the information
contained in such notice, International Paper shall make monthly payments to me
equal to the monthly base pay I was receiving from International Paper in the
month prior to the termination of my employment with International Paper for
each month (or pro rata for periods less than a month) of such unemployment
during the non-compete period. Before the close of each month for which I seek
such payment, I shall advise the Company in writing of my efforts to obtain
non-competitive employment and shall certify that although I diligently sought
employment, I was unable to obtain it solely by reason of Section 3 of this
Agreement.
4. Non-Solicitation/Non-Hire Provision
During the term of my employment at International Paper and for twenty
four (24) months following the termination, for any reason, of my employment, I
agree that I will not, either on my own behalf or on behalf of any other person
or entity, directly or indirectly, hire, solicit, retain, or encourage to leave
the employ of International Paper (or assist any other person or entity in
hiring, soliciting, retaining or encouraging) any person who is then or was
within six (6) months of the date of such hiring, an employee of International
Paper.
5. Tolling Period of Restrictions
I agree that the periods of non-competition and non-solicitation set
forth in Sections 3 and 4 of this Agreement shall be extended by six months if I
am found to be in violation of those provisions.
6. Duty to Show Agreement to Prospective Employer
During my employment with International Paper and for twenty four (24)
months thereafter, I shall, prior to accepting other employment, provide a copy
of this Agreement to any recruiter who assists me in locating employment other
than with International Paper and to any prospective employer with which I
discuss potential employment.
7. Representations, Warranties and Acknowledgements
In addition to the representations, warranties and obligations set
forth throughout this Agreement, I acknowledge that (a) Protected Information is
commercially and competitively valuable to International Paper and critical to
its success; (b) the
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Unauthorized use or disclosure of Protected Information or the violation of the
covenants set forth in Sections 2, 3 or 4 would cause irreparable harm to
International Paper; (c) by this Agreement, International Paper is taking
reasonable steps to protect its legitimate interests in its Protected
Information; (d) I have developed or will develop legally unique relationships
with customers of International Paper; and (e) nothing herein shall prohibit
International Paper from pursuing any remedies whether in law or equity,
available to International Paper for a breach or threatened breach of this
Agreement. I further acknowledge and agree that as a senior executive of
International Paper I perform unique and valuable services to International
Paper of an intellectual character and that my services will be difficult for
International Paper to replace. I further acknowledge and agree that the Company
is providing me with significant consideration in this Agreement for entering
into the Agreement and that International Paper's remedies for any breach of
this Agreement are in addition to and not in place of any other remedies
International Paper may have at law or equity or under any other agreements.
8. General
(a) I acknowledge and agree that the parties have attempted to
limit my right to compete only to the extent necessary to protect International
Paper from unfair competition and protect the legitimate interests of
International Paper. If any provision or clause of this Agreement, or portion
thereof, shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable in such jurisdiction, the remainder of such provisions
shall not thereby be affected and shall be given full effect, without regard to
the invalid portion. It is the intention of the parties and I agree, that if any
court construes any provision or clause of this Agreement, or any portion
thereof, to be illegal, void or unenforceable because of the duration of such
provision or the area or matter covered thereby, such court shall reduce the
duration, area or matter of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
(b) I acknowledge that neither this Agreement nor any provision
hereof can be modified, abrogated or waived except in a written document signed
by the Senior Vice President of Human Resources of International Paper and the
General Counsel or, in the event of the absence of either of these executives or
the vacancy of either of these positions, such other officer of International
Paper as its Chief Executive Officer shall designate in writing.
(c) This Agreement shall be governed by and in accordance with
the laws and public policies of Connecticut and supersedes all prior
non-solicitation or non-compete agreements into which I have entered with
International Paper.
(d) I hereby consent to the jurisdiction of, and agree that any
claim arising out of or relating to this Agreement may be brought in the Supreme
Court of the State of New York, in the County of Westchester.
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(e) This Agreement and any rights thereunder may be assigned by
International Paper and if so assigned shall operate to protect the Protected
Information and relationships of International Paper as well as such information
and relationships of the assignee.
(f) Attorneys' Fees. Should either party to this Agreement breach
any of the terms of this Agreement, that party shall pay to the non-defaulting
party all of the non-defaulting party's costs and expenses, including attorneys'
and experts' fees, in enforcing the provisions of the Agreement as to which a
breach is found.
(g) I agree that International Paper's determination not to
enforce this or similar agreements as to specific violations shall not operate
as a waiver or release of my obligations under this Agreement.
(h) Common Law Duties. I understand that I owe fiduciary and
common law duties to International Paper in addition to the covenants set forth
above prohibiting the misuse or disclosure of trade secrets or confidential
information and the unlawful interference with International Paper's business
and customer relationships.
(i) Opportunity to Review. I acknowledge and agree that
International Paper is advising me that I may consult with an independent
attorney before signing this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered, effective as of the date signed below by a duly
authorized officer of International Paper.
Date:
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First Name Last Name
ID #:
Work Address:
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International Paper
By:
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Jerome N. Carter
SVP, Human Resources