EXHIBIT 10(a)(2)
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
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THIS AGREEMENT, by and between Case Corporation (the "Corporation") and
_____________ (the "Employee") effective as of January 26, 1998 (the "Effective
Date"),
WITNESSETH THAT:
WHEREAS, the Corporation has granted the Employee certain awards under the
Case Corporation Equity Incentive Plan as of the Effective Date (the "Awards");
and
WHEREAS, the Awards are contingent on the execution of this Agreement and
Employee acknowledges that they would not have been granted but for the
covenants and agreements made by the Employee in this Agreement;
NOW, THEREFORE, in consideration of the Awards, and for other good and
valuable consideration the receipt of which is hereby acknowledged, it is agreed
by the Employee and Corporation as follows:
1. The Corporation's Business. The Employee acknowledges that the
Corporation and entities which it controls ("Affiliates") are (i) primarily in
the business in the United States and internationally of (a) the design,
manufacture, sale and distribution of agricultural equipment, (b) the design,
manufacture, sale and distribution of construction equipment, (c) the design,
manufacture, sale and distribution of replacement parts for agricultural and
construction equipment, and (d) the provision of financing and related financial
services to dealers of the Corporation, its subsidiaries and affiliates, and
their customers, for the acquisition of new and used construction, agricultural
and other equipment bearing a Case or other brand name, and (ii) may in the
future engage in other lines of businesses, as each may be described from time
to time in filings with the Securities and Exchange Commission or publications
of general distribution of the Corporation (collectively, the "Corporation's
Business").
2. Confidential Information. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, or except to the extent
that the Employee has express authorization from the Corporation, the Employee
agrees to keep secret and confidential indefinitely all non-public information
concerning the Corporation or any Affiliate of the Corporation which was
acquired by or disclosed to the Employee during the course of his employment
with the Corporation or its Affiliates, including but not limited to customer
lists, price lists, customer services requirements, costs of providing services,
supplier information, and other data of or pertaining to the Corporation or to
any Affiliate of the Corporation which are not a matter of public knowledge, and
not to disclose the same, either directly or indirectly, to any other person,
firm or business entity or to use it in any way.
3. Non-solicitation. While the Employee is employed by the Corporation
and its Affiliates and for a period of one year after the Employee's termination
of employment with the Corporation and its Affiliates for any reason, the
Employee covenants and agrees that he will not, whether for himself or for any
other person, business, partnership, association, firm, company or corporation,
directly or indirectly, call upon, solicit, divert or take away or attempt to
solicit, divert or take away (i) any individual or entity which is or has been a
customer or potential customer of the Corporation or its Affiliates at any time
during the one year period preceding his termination of employment, or (ii) any
individual who is, or has been during the preceding six months, an employee of
the Corporation or its Affiliates. For purposes of this paragraph 3, a
"potential customer" means any individual or entity from which the Employee, on
behalf of the Corporation or any Affiliate has actively solicited business
during the one year period preceding his termination of employment.
4. Non-competition. While the Employee is employed by the Corporation and
its Affiliates, and for a period of one year after the Employee's termination of
employment with the Corporation and its Affiliates, for any reason, the Employee
covenants and agrees that he will not, without the prior written consent of the
Corporation, directly or indirectly, engage in, assist, or perform services for
any business entity (whether as an employee, officer, director, consultant or
otherwise) with respect to any activity in the United States or internationally
which is the same as, similar to, or competitive with (a) any of the
Corporation's Business with respect to which the Employee performed services on
behalf of the Corporation or an Affiliate or with respect to which the Employee
was otherwise involved prior to his termination of employment, or (b) any line
of business for which, as of the date of the Employee's termination of
employment, the Corporation or an Affiliate has made a corporate decision to
undertake and with respect
to which the Employee was involved on behalf of the Corporation or an Affiliate.
The Vice President of the Corporation in charge of Human Resources shall have
the sole and exclusive right to give consent on behalf of this Corporation under
this paragraph 4 with respect to any activity or arrangement that would
otherwise be prohibited hereunder.
5. Remedies. The Employee acknowledges that the covenants and agreements
contained in paragraphs 2, 3 and 4 are essential to protect the Corporation's
Business, and that Corporation would be irreparably injured by a violation of
paragraph 2, 3 or 4, and he agrees that the Corporation, in addition to any
other remedies available to it for such breach or threatened breach, shall be
entitled to a preliminary injunction, temporary restraining order or other
equivalent relief, restraining Employee from any actual or threatened breach of
any such paragraph. If a bond is required to be posted in order for the
Corporation to secure an injunction or other equitable remedy, the parties agree
that the bond need not be more than a nominal sum.
6. Severability and Entire Agreement. The invalidity or unenforceability
of any provision of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, and this Agreement will
be construed as if such invalid or unenforceable provision were omitted (but
only to the extent that such provision cannot be appropriately reformed or
modified). The Agreement is intended to be the entire agreement between the
parties regarding the subject matter hereof and shall supersede any prior
agreements to the contrary.
7. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the internal laws of the State of Delaware without application
of the conflict of laws provisions thereunder.
8. Successors. This Agreement shall be binding upon, and operate for the
benefit of, the Corporation and its successors and assigns.
9. Acknowledgment by Employee. The Employee acknowledges that he has read
this Agreement, understands the undertakings and restrictions it contains, and
intends to be fully bound by its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CASE CORPORATION EMPLOYEE
Marc J. Castor
Vice President, Human Resources __________________________________
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