Exhibit 10.4
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION AND CONFIDENTIALITY AGREEMENT ("Agreement") is made as
of __________, ______, by __________________________________ ("Employee") in
favor of NN Ball & Roller, Inc., a Delaware corporation (the "Company").
WITNESSETH
WHEREAS, the Company manufactures and supplies precision steel balls and
rollers to anti-friction bearing manufacturers, automotive original equipment
manufacturers and the automotive aftermarket, the gas and mining industries,
producers of drilling bits for oil, gas, and water wells and producers of
stainless steel valves and pumps (the "Business"), and its customers are located
in more than 25 different countries;
WHEREAS, Employee is an employee "at will" with the Company and currently
holds a management or executive position with the Company;
WHEREAS, the Company is requiring that the Employee, as a condition to and
in consideration of his continued employment, enter into this Agreement; and
WHEREAS, the Employee desires to enter into this Agreement in order to
maintain his employment with the Company.
NOW, THEREFORE, in consideration of the foregoing premises, the continued
employment of the Employee and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Employee hereby
agrees with the Company as follows:
1. Term. For purposes of this Agreement, the "Term" shall mean the period
commencing on the date hereof and continuing through the second anniversary of
the date of the Employee's termination of employment with the Company for any
reason.
2. Covenant Not to Compete.
2.1 Employee's Knowledge. Employee acknowledges and agrees that he
occupies a position of trust and confidence with Company and, in the course of
his engagement with the Company, has become and will continue to become familiar
with proprietary and confidential information concerning the Company. Employee
acknowledges and agrees that his services are of a special, unique and
extraordinary value to the Company and that the Company would be irreparably
damaged if Employee were to provide similar services to any person or entity in
violation of the provisions of this Agreement.
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2.2 Non-Compete. Employee hereby agrees that, during the Term, he shall
not, directly or indirectly, as employee, agent, consultant, stockholder,
director, co-partner or in any other individual or representative capacity, own,
operate, manage, control, engage in, invest in or participate in any manner in,
act as a consultant or advisor to, render services for (alone or in association
with any person, firm, corporation or entity), or otherwise assist any person or
entity that engages in or owns, invests in, operates, manages or controls any
venture or enterprise that competes in the Business anywhere in the world (the
"Territory"); provided, however, that nothing contained herein shall be
construed to prevent Employee from investing in the stock of any competing
corporation listed on a national securities exchange or traded in the
over-the-counter market, but only if Employee is not involved in the business of
said corporation and if Employee does not own more than an aggregate of two (2%)
percent of the stock of such corporation.
2.3 Non-Solicitation. Without limiting the generality of the provisions of
Section 2.2 above; Employee hereby agrees that during the Term he will not,
directly or indirectly, solicit (or participate as employee, agent, consultant,
stockholder, director, partner or in any other individual or representative
capacity in any business which solicits), business from any person, firm,
corporation or other entity that is a customer of the Company at the time of
such solicitation, or from any successor in interest to any such person, firm,
corporation or other entity, for the purpose of securing business or contracts
relating to the Business.
2.4 Interference with Relationships. During the Term, Employee shall not,
directly or indirectly, as employee, agent, consultant, stockholder, director,
co-partner or in any other individual or representative capacity: (a) employ or
engage, or solicit for employment or engagement, any person employed or engaged
by the Company, or otherwise seek to influence or alter any such person's
relationship with the Company, or (b) solicit or encourage any customer of the
Company to terminate or otherwise alter his, her or its relationship with the
Company.
3. Confidential Information. (a) During the Term and at all times
thereafter, Employee shall keep secret and retain in strictest confidence, and
shall not, without the prior written consent of the Company, furnish, make
available or disclose to any third party or use for the benefit of himself or
any third party, any "Confidential Information." As used in this Agreement,
Confidential Information shall mean any information held in confidence by the
Company and not freely available to the public which gives the Company an
advantage over competitors in the Business, including, without
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limitation, sales or earnings figures, personnel matters, supplier and customer
data and information relating to the Company's manufacturing processes,
equipment and customer servicing methods; provided, however, that Confidential
Information shall not include any information which otherwise is in the public
domain or becomes known in the ball and roller industry through no wrongful act
on the part of Employee. Employee acknowledges that the Confidential Information
is vital, sensitive, confidential and proprietary to the Company.
(b) Employee hereby represents and warrants to the Company that at
all times prior to the date hereof he has kept secret and retained in strictest
confidence, and has not furnished, made available or disclosed to any third
party or used for the benefit of himself or any third party, any Confidential
Information.
4. Judicial Modification. If any court of competent jurisdiction shall at
any time deem the Term or any covenant contained herein too lengthy, or the
Territory too extensive, the other provisions of this Agreement shall
nevertheless stand, the Term shall be deemed to be the longest period
permissible by law under the circumstances and the Territory shall be deemed to
comprise the largest territory permissible by law under the circumstances. The
court in each case shall reduce the time period and/or Territory to permissible
duration or size.
5. Remedies. Employee acknowledges and agrees that the covenants set
forth in the Agreement are reasonable and necessary for the protection of the
Company's business interests, that irreparable injury will result to the Company
if Employee breaches any of the terms of said covenants, and that in the event
of Employee's actual or threatened breach of any such covenant, the Company will
have no adequate remedy at law. Employee accordingly agrees that in the event of
any actual or threatened breach by him of any of the covenants contained herein,
the Company shall be entitled to immediate temporary injunctive and other
equitable relief, without bond and without the necessity of showing actual
monetary damages, subject to hearing as soon thereafter as possible. Nothing
contained herein shall be construed as prohibiting the Company from pursing any
other remedies available to it for such breach or threatened breach, including
the recovery of any damages which it is able to prove.
6. Condition of Employment. The Company shall have no obligation to
retain the Employee in its employ as a result of this Agreement, there shall be
no inference as to the length of employment implied hereby, and the Company
reserves the
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same rights to terminate the employment of the Employee as existed prior to the
date hereof.
7. Miscellaneous. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes any other agreements between the parties, written or oral,
relating to the subject matter hereof. No amendment or modification of this
Agreement and no waiver by any party of the breach of any covenant contained
herein shall be binding unless executed in writing by the party against whom
enforcement of such amendment, modification or waiver is sought. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original without production of the others. This Agreement shall be governed by
and construed in accordance with the laws of the State of Tennessee, without
regard to its choice of law provisions. In the event any provision or portion of
any provision of this Agreement is held invalid or unenforceable by a court of
competent jurisdiction as applied to any fact or circumstance, the remaining
provisions and portions of this Agreement and the same provision as applied to
any other fact or circumstance shall not be affected or impaired thereby, and
shall remain valid and enforceable. The terms "he", "his", and "him" are used
herein generically for convenience only, and may, as appropriate, be considered
to represent the terms "she", "hers" and "her".
IN WITNESS WHEREOF, the Employee has caused this agreement to be duly
executed in favor of the Company on the day and year first above written.
By:__________________________________
Employee
ACKNOWLEDGED
NN BALL & ROLLER, INC.
By:_______________________________