Exhibit 99(e)(7)
FORM OF
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
NON-COMPETITION AND NON-SOLICITATION AGREEMENT (the "AGREEMENT"),
dated as of August 9, 2002, is by and between [_________] ("EMPLOYEE") and The
▇▇▇▇▇▇▇ Companies, Inc., a Massachusetts corporation (the "COMPANY").
RECITALS
WHEREAS, Employee recognizes that, as an employee of the Company,
Employee has occupied, and will continue to occupy, a position of trust with the
Company and its subsidiaries;
WHEREAS, Employee acknowledges that the businesses currently
conducted by the Company and its subsidiaries, including but not limited to (i)
real estate brokerage, referral and property management, (ii) relocation, (iii)
mortgage origination, brokerage and lending, and (iv) insurance brokerage, and
the provision of related products and services (collectively, the "BUSINESS")
are intensely competitive;
WHEREAS, in connection with Employee's employment by the Company,
Employee has obtained specialized knowledge of the Business and has had, and
will continue to have, access to trade secrets, customer lists, data, records,
financial information, proprietary methods, personnel information, business
secrets, operational methods and other valuable confidential business
information in connection with the Business which is not generally publicly
available, the disclosure of which would place the Company and its subsidiaries
at a serious competitive disadvantage, and would do serious damage to the
Company and its subsidiaries, financial and otherwise; and
WHEREAS, it is proposed that the Company enter into an agreement and
plan of merger, dated as of August 12, 2002, with NRT Incorporated and Timber
Acquisition Corporation (the "MERGER AGREEMENT") and Employee is entering into
this Agreement in connection with the merger proposed in the Merger Agreement.
NOW, THEREFORE, in consideration, among other things, of Employee's
continued employment by the Company and the mutual promises contained herein,
Employee covenants and agrees with the Company as follows:
1. This Agreement shall become effective immediately upon the date of this
Agreement. For purposes of this Agreement, the restricted period shall be
the later of (i) the date that is [__] years from the date of this
Agreement or (ii) the date that is 12 months after the termination of
Employee's affiliation with the Company and its subsidiaries ("RESTRICTED
PERIOD").
2. Employee shall not, at any time during the Restricted Period, without the
prior written permission of the Company, directly or indirectly, engage in
any activity which is the
same as, similar to, or competitive with any area of the Business (or any
segment thereof) in which Employee is involved during his employment with
the Company, within a fifty (50) mile radius of the location of any office
of the Company existing on the date hereof (collectively, the "RESTRICTED
AREAS") or at any time during Employee's employment with the Company
("COMPETITIVE ACTIVITIES").
For purposes of this Agreement, Employee shall be deemed to be
engaging in a Competitive Activity if Employee, directly or indirectly, engages
or participates in, without limitation, any of the following conduct:
(i) operates, carries on, engages in, participates in or provides
services in any Competitive Activity as a principal, or on his
or her own account, or solely or jointly with others as a
director, officer, member, manager, agent, employee, security
holder, independent contractor, consultant, partner, trustee
or beneficiary of a trust, or stockholder or limited partner;
PROVIDED, that (A) nothing contained herein shall preclude
Employee's purchase or ownership of securities of any company
engaged in any business the same as or similar to, or
competitive with the Business if such securities are publicly
traded and Employee's holdings do not exceed five percent (5%)
of the issued and outstanding securities of any class of
securities of such company, and (B) nothing contained herein
shall preclude Employee from engaging in any activities with
respect to real estate, including, without limitation, the
purchase, sale, ownership or management thereof, if Employee
owns, directly or indirectly, a controlling equity interest in
such real estate;
(ii) invests in or lends credit or money for the purpose of
establishing or operating any Competitive Activity; PROVIDED,
that nothing contained herein shall preclude Employee's
purchase or ownership of securities of any company engaged in
any business the same as or similar to, or competitive with
the Business if (A) such securities are publicly traded, and
(B) Employee's holdings do not exceed five percent (5%) of the
issued and outstanding securities of any class of securities
of such company;
(iii) carries on, or engages or participates in, negotiations with
respect to the acquisition or disposition of any Competitive
Activity;
(iv) gives advice to any other person, firm, association,
corporation or other entity engaging in any Competitive
Activity with respect to such Competitive Activity; or
(v) lends or allows the skill, knowledge or experience of Employee
to be used in any Competitive Activity.
3. Employee represents, stipulates and acknowledges that (i) Employee's
experience and capabilities are such that the provisions herein contained
will not prevent Employee
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from earning a livelihood, (ii) it would cause the Company serious and
irreparable injury and cost if Employee were to use his ability and
knowledge to engage in any Competitive Activity, or to otherwise breach
the obligations contained herein, and (iii) the foregoing restrictions on
competition are fair and reasonable in both geographic and temporal scope
and are reasonably necessary to protect the legitimate business interests
of the Company and its subsidiaries.
4. Employee shall not at any time hereafter, whether individually or
collectively, make use of, develop, divulge, communicate, disclose, or
otherwise use to the detriment of the Company, or any of its subsidiaries
or affiliates, or for the benefit of any other person or persons, or
misuse in any way, directly or indirectly, any confidential information,
trade secrets or business secrets (including, without limitation, any
customer lists, data, records, financial information, personnel
information or any other information, constituting a trade or business
secret) concerning the Company or its subsidiaries or affiliates, or the
business or policies of the Company or its subsidiaries or affiliates,
which the undersigned may have learned as a result of having been, or in
the future continuing to be, an employee of the Company or any of its
subsidiaries or affiliates. Employee acknowledges and agrees that such
information or data that Employee may have acquired on any of these
matters was received in confidence and as a fiduciary of the Company, its
subsidiaries or affiliates, and all such information will be kept
confidential.
5. Employee shall not, during the Restricted Period, directly or indirectly:
(i) solicit or induce, or attempt to solicit or induce, any
employee, sales agent, sales associate or other independent
contractor of the Company or its subsidiaries or affiliates
engaged in the Business which have operations within any of
the Restricted Areas ("RESTRICTED AFFILIATES") to leave the
Company or its subsidiaries or Restricted Affiliates for any
reason whatsoever, or hire, solicit to hire, or in any other
manner interfere with the business relationship between the
Company or its subsidiaries or Restricted Affiliates and any
employee, sales agent, sales associate or other independent
contractor of the Company or its subsidiaries or Restricted
Affiliates; PROVIDED, that nothing contained herein shall
prevent Employee from placing advertisements in newspapers,
Internet job sites and other media generally accessible to the
public, employing a recruitment service or making any other
general recruitment effort that is not specifically directed
at any employee, sales agent, sales associate or other
independent contractor of the Company or its subsidiaries or
Restricted Affiliates, for so long as Employee does not,
directly or indirectly, hire any employee, sales agent, sales
associate or other independent contractor of the Company or
its subsidiaries or Restricted Affiliates;
(ii) solicit the business of, or conduct any business with, any
customer or client or prospective customer or client of the
Company, its
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subsidiaries or Restricted Affiliates for any business purpose
other than for the benefit of the Company or its subsidiaries
or Restricted Affiliates with whom Employee had contact or
dealings on behalf of the Company or its subsidiaries or
Restricted Affiliates; PROVIDED, that nothing contained herein
shall prevent Employee from soliciting the business of, or
conducting any business with, any customer or client or
prospective customer or client of the Company, its
subsidiaries or Restricted Affiliates for any business purpose
that is not a Competitive Activity and that does not otherwise
interfere with the relationship, as it relates to the
Business, of the Company, its subsidiaries or Restricted
Affiliates with such customer or client or prospective
customer or client. For purposes of this Section, a
"prospective customer or client" is any potential customer or
client that was, to the knowledge of Employee, actively
solicited by the Company or its subsidiaries or Restricted
Affiliates within the 12 months preceding the solicitation or
trade of the Employee prohibited by this Section 5;
(iii) interfere or attempt to interfere with any transaction,
prospective agreement, business opportunity or business
relationship involving the Company or its subsidiaries or
Restricted Affiliates in which Employee was involved; or
(iv) otherwise engage or participate in any effort or act to induce
any person to discontinue a relationship with the Company or
its subsidiaries or Restricted Affiliates.
6. Employee acknowledges, stipulates and agrees that irreparable injury will
result to the Company and its subsidiaries and affiliates in the event of
a breach of any of the covenants or agreements contained herein, and each
of the undersigned agrees that in the event of any such breach of any of
the provisions set forth herein, the Company and its subsidiaries or
affiliates shall be entitled, in addition to any other remedies available
to it (including, without limitation, damages and any right of offset), to
equitable relief in the form of an injunction or otherwise to restrain any
such breach hereof by the undersigned. Nothing herein contained shall in
any way be construed as limiting the Company's and its subsidiaries' or
affiliates' remedies in any way.
7. This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of Delaware, without reference to the
conflict of laws principles thereof.
8. If Employee breaches any of the provisions of this Agreement, the Company
and its subsidiaries, affiliates, successors and assigns shall have the
following rights and remedies, each of which shall be independent of the
others and severally enforceable, and each of which shall be in addition
to, and not in lieu of, any other rights or remedies available to the
Company and its subsidiaries, affiliates, successors and assigns at law or
in equity under this Agreement or otherwise:
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(i) The right and remedy to have each and every one of the
covenants in this Agreement specifically enforced and the
right and remedy to obtain injunctive relief, it being agreed
that any breach or threatened breach of any of the restrictive
covenants in this Agreement would cause irreparable injury to
the Company and its subsidiaries, affiliates, successors and
assigns and that money damages would not provide an adequate
remedy to the Company or its subsidiaries, affiliates,
successors or assigns;
(ii) Employee acknowledges and agrees that the restrictive
covenants in this Agreement are reasonable and valid in
geographic and temporal scope and in all other respects. If,
however, any court subsequently determines that any of the
restrictive covenants, or any part thereof, is invalid or
unenforceable, the remainder of the restrictive covenants
shall not thereby be affected and shall be given full effect
without regard to the invalid portions;
(iii) If any court determines that any of the restrictive covenants,
or any part thereof, is unenforceable because of the duration
or geographic scope of such provision, such court shall have
the power to reduce the duration or scope of such provision,
as the case may be, but only to the extent absolutely
necessary to render the provision(s) enforceable and only in
view of the parties' express desire that the Company, its
subsidiaries and affiliates be protected to the greatest
extent allowed by law, and, in its reduced form, such
provision shall then be enforceable to the maximum extent
permitted by applicable law; and
(iv) Employee intends to and hereby confers jurisdiction to enforce
each and every one of the covenants in this Agreement upon the
courts of any jurisdiction within the geographic scope of such
restrictive covenants. If the courts of any one or more of
such jurisdictions hold the restrictive covenants
unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of Employee that such
determination shall not bar or in any way affect the Company's
or any of its subsidiaries' or affiliates', successors' or
assigns' right to the relief provided above in the courts of
any other jurisdiction within the geographic scope of such
restrictive covenants, as to breaches of such restrictive
covenants in such other respective jurisdictions, such
restrictive covenants as they relate to each jurisdiction
being, for this purpose, severable into diverse and
independent covenants.
9. This Agreement is not a contract of employment for any term.
10. Employee may not assign any of his rights or obligations under this
Agreement without the prior written consent of the Company. The Company
may assign any or all of its rights and/or obligations under this
Agreement without Employee's consent.
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11. No provisions of this Agreement may be amended, modified, waived or
discharged unless such amendment, modification, waiver or discharge is
agreed to in writing signed by the parties hereto.
12. This Agreement contains the entire agreement between the parties with
respect to the subject matters hereof and supercedes all prior agreements,
understandings, discussions and negotiations, oral or written, with
respect to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective the day and year first above written.
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Name:
THE ▇▇▇▇▇▇▇ COMPANIES, INC.
By:
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Name:
Title: