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I am a machine builder, more specifically building custom automation, working on the electrical side, or as an electrician. I have worked 11 yrs in the field of building/wiring the machines, and the prior ten years repairing automation. I was laid off last August and unemployed for approximately 10 months after which I started work for a different automation machine builder. During the course of the layoff I had contacted my former employer several times in regard to going back to work and was told I was in the list to be called backed when the job picked up. After 8 months of being unemployed my previous employer hired a replacement to do my job that had been laid off from a competitor company. Recently my former employer asked if I was interested in coming back for a couple weeks to a month of work. I expressed to him I am not interested in temporary employment and that I had a new permanent job building machines. If he would make a long term commitment I would come back. His response was that I had signed a non compete agreement. Also note that I was forced to sign the 2 yr non compete after ten yrs of employment to retain my job. Within a yr... I was laid off. Will this agreement stand up in Indiana courts?


EMPLOYEE COVENANTS IN CONSIDERATION OF EMPLOYMENT


THIS AGREEMENT is made this _____ day of _______________________, by the undersigned to and for the benefit of XXXXXX, INC. and related Companies of XXX, XXX, Indiana (the "Company") and arises out of the circum­stances hereinafter described. The undersigned (the "Employee") is presently an employee or about to become an employee of the Company. In the employment capacity the Employee has or will have a special and unique relationship with the customers of the Company with whom the Employee comes in contact and with the representa­tives of those customers. In addition, the Employee will have special and unique access to much of the proprietary and business information of the Company regarding its relationships with its customers. The Company has or will provide the Employee the time, materials and facilities to apply the Employee’s trade for the benefit of the Company. The Company's continuing relationship with its customers and the continuing protection of the Company's propri­etary and business information is critical to its continued business success. The Company’s ownership of its proprietary rights and intellectual property is also critical to its continued business success. Because of the unique and special customer relationships and access to the proprietary and business informa­tion the Employee has been or will be able to develop, as a result of the Employee's employment capacity with the Company, the Employee will be in a position to do unique and special damage to the business of the Company in the event the Employee should seek to divert, or appropriate, any customers or proprietary and business information from the Company.

It is therefore reasonable for the Employee to agree as a condition of employment with the Company and in consideration of the Company's employment of the Employee as follows:


Not to use, publish, disseminate, or otherwise disclose (except as the Company duties may require for the benefit of the Company), either during or subsequent to Employee’s employment with the Company, any secret, confidential, proprietary or business information or data of the Company, including without limitation, information regarding customers of the Company, financial information, pricing, trade secrets, processes, methods and personnel information of the Company.

Not to use, publish or otherwise disclose (except as the Company duties may require) either during or subsequent to employment with the Company, any secret or confidential information of others which the Company is obligated to maintain in confidence.

Not to disclose or utilize in Employee’s work with the Company any secret or confidential information of others (including any prior employers of Employee) not included within the scope of this Agreement and for which Employee is obligated to not so disclose.

To disclose and assign to the Company, as its exclusive property, all inventions and technical or business innovations developed or conceived by the Employee, solely or jointly with others, during the period of Employee’s employment that are along the lines of the business, work, or investigations of the Company or of any of its affiliates, including but not limited to, any such information that may result from or is suggested by any work which the Employee may do for the Company or that is otherwise made through the use of Company ties, facilities or materials.

To execute all necessary papers and otherwise provide proper assistance (at the Company’s expense), during and subsequent to said employment, and to enable the Company to obtain for itself or its nominees patents, copyrights or other legal protection for such inventions or innovations in any and all countries.

To make and maintain for the Company adequate and current written records of all such inventions and innovations.

During the term of the Employee's employment with the Company and for a period of two (2) years immediately following the termination of such employment for any reason, the Employee will not either directly or indirectly, for himself or for any other persons, firm, corporation or association, engage in a competitive business with the Company in any territory in which the Company engages in business.

During the term of the Employee's employment with the Company and for a period of two (2) years immediately following the termination of such employment for any reason, the Employee will not either directly or indirectly, for himself or for any other person, firm, corporation or association, call upon, solicit, divert, or take away, or attempt to solicit, divert, or take away any of the customers of the Company.

During the term of the Employee's employment with the Company and for a period of two (2) years immediately following the termination of such employment for any reason, the Employee will not either directly or indirectly, for himself or for any other person, firm, corporation or association, call upon, solicit, divert, or take away, or attempt to solicit, divert, or take away any of the customers of the Company with whom the Employee did business on behalf of the Company.

During the term of the Employee's employment with the Company and for a period of two (2) years immediately following the termination of such employment for any reason, the Employee will not either directly or indirectly, on behalf of himself or any other person, association, firm, corporation or business entity, hire any employee of the Company or induce or endeavor to induce any employee of the Company to discontinue his employment with the Company for the purpose of working or assisting in any business or activity competitive or potentially competitive with the business of the Company.

Upon any termination of employment, Employee agrees to deliver to the Company promptly all items which belong to the Company or which, by their nature, are for the use of Company employees only, including without limitation, all written and
other materials which are of a secret or confidential nature relating to the business of the Company or its affiliates.

If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of paragraphs 1 through 11 above, the Company shall have the following rights and remedies:

(a) The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company; and

(b) The right and remedy to require the Employee to account for and pay over to the Company all compensation, profits, monies, increments or other benefits derived or received by the Employee as a result of any transactions constituting a breach of any of the provisions of paragraphs 1 through 11, and the Employee hereby agrees to account for and pay over such benefits to the Company.

Each of the foregoing rights and remedies are independent, severally enforceable and are in addition to any other rights or remedies available under law or in equity.

In the event of the violation by the Employee of any one or more of the agreements contained in paragraphs 1 through 11 above, the term of each such agreement so violated shall be automatically extended for a like period of time from the date on which the Employee permanently ceases such violation or from the date of the entry by a court of competent jurisdiction of a final order or judgment enforcing such agreement, whichever period is later.

In the event that any action, suit or other proceeding in law or in equity is brought to enforce the agreements contained in paragraphs 1 through 11 above, or to obtain any damages for the breach thereof, and such action results in the award of a judgment for money damages or in the granting of any injunction in favor of the Company, all expenses (including reasonable attorneys' fees) of the Company in such action, suit or other proceeding shall be paid by the Employee.

In the event any provision or provisions of this Agreement is or are to be held invalid, the remaining provisions of this Agreement shall not be affected thereby and such remaining provisions shall remain in full force and effect as between the Employee and the Company.

The Employee acknowledges that he has read this Agree­ment, has been given sufficient opportunity to consult with an attorney regarding its terms, and agrees with its terms as though he had drafted this Agreement himself. The Employee agrees that although this Agreement was, by necessity, printed and assembled by the Company, its agents or attorneys, this Agreement reflects the terms as agreed to by the parties, and the Company should merely be considered only the scrivener for the document. In the event a term or terms of this Agreement is considered ambiguous, neither the Employee nor the Company shall be considered the draftsperson for the purpose of causing the terms of this Agreement to be construed against that party.



______________________________
Employee