Plaintiff's First Amended Complaint and Application For Injunctive Relief

Case 3:11-cv-01345-N Document 7
Filed 06/20/11
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION GENESCO SPORTS ENTERPRISE, INC., Plaintiff, vs. SIDNEY WHITE, Defendant.
Civil Action No.: 3-11cv1345-N Jury
PLAINTIFFS FIRST AMENDED COMPLAINT AND APPLICATION FOR INJUNCTIVE RELIEF TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff Genesco Sports Enterprises, Inc. (Plaintiff or Genesco Sports), complaining of and about Defendant Sidney White (Defendant) and for cause of action would respectfully show the Court the following: I. PARTIES AND SERVICE 1. Plaintiff Genesco Sports is authorized to do business in Texas. The company has
its principal place of business at 1845 Woodall Rodgers Freeway, Dallas, TX 75201. 2. Defendant Sidney White is an individual residing in Dallas County, Texas and
may be served with process at 8630 Santa Clara Drive, Dallas, Texas 75218. II. JURISDICTION 3. This Court has jurisdiction over the controversy pursuant to 28 U.S.C. 1331 in
that the controversy concerns a federal question. Specifically, among other causes of action Plaintiff alleges Defendant has violated the Computer Fraud and Abuse Act set forth in 18 U.S.C. 1030(e). Defendants violations of the Computer Fraud and Abuse Act have resulted in
Plaintiffs First Amended Complaint and Application for Injunctive Relief
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damages, as defined in 18 U.S.C. 1030(e)(8), totaling approximately $12,500.00, incurred in the course of Genesco Sports IT Specialist Randy Turners investigation and data recovery. III. VENUE 4. Venue is proper in Dallas County pursuant to FED. R. CIV. P. 1391(b)(1)-(2). IV. FACTS 5. In January of 2004, Genesco Sports employed Defendant in its Account
Services/New Business department. 6. Upon accepting employment with Genesco Sports, Defendant, like all Genesco
Sports employees, was presented with and executed an Employment Agreement. See Exhibit A attached hereto. Section 6 of that Agreement states in pertinent part: Employee will not, during Employees employment with Company or at any time thereafter, directly or indirectly, disclose any Confidential information or Confidential Materials, to any person or entity that is not an employee, officer, director, agent, or affiliate of Company unless such disclosure is expressly authorized by Company. Employee will not, during Employees employment or at any time thereafter, directly or indirectly, use any Confidential Information or Confidential Materials in any manner that is not directly and primarily in the best interests of Company unless expressly authorized to do so by Company. 7. notice. 8. During the two-week period beginning two days prior to his tending his On May 19, 2011, White resigned from Genesco Sports, tendering his two-week
resignation, on May 16, White, on several instances, downloaded confidential and proprietary information from Genesco Sports internal network. White downloaded the following proprietary information from Genesco Sports: (1) contract information proprietary to Frito Lay, Verizon, Pepsi; (2) Five months of email; (3) credit card expenses; (4) reports; (5) office forms; (6) DECKS, and (7) miscellaneous information from other employees files.
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9.
Mr. White continued to copy various files over a two week period, up to an hour
before his departure from the building on June 3, 2011. The last file was copied approximately 10:47 a.m. Mr. White copied all of said documents to a USB drive and then deleted them from his laptop. Further, Mr. White also copied other data from Genesco Sports server of which he had no right accessing. Additionally, his corporate mail was also deleted, including all contents in both his Inbox and Sent items, which would include correspondence from Genesco Sports clients to White in the course of normal business. 10. On June 6, 2011, Genesco Sports IT Specialist Randy Turner (Turner)
discovered White had downloaded proprietary and confidential documents when, as a routine matter, he took possession of Whites laptop after Whites departure from the company, and noticed that all of Whites documents and mail were missing. It was this incident that prompted Turner to investigate further, at which time he accessed the Recent Documents and was alarmed by the fact that Mr. White had not only copied and deleted the entirety of his documents and mail, but also had copied sensitive information from Genesco Sports corporate server. Because Windows creates a Recent Documents file within the operating system, Turner was able to view the list of Genesco Sports files shown to be transferred from Whites laptop and the server to a USB jump drive, identified on Whites laptop as the F Drive. The Recent Documents folder showed the time and date of all transactions and files accessed within a given time frame. 1 V. CAUSE OF ACTION BREACH OF CONTRACT 11. forth.
1
Plaintiff incorporates all previous paragraphs herein by reference as if fully set
The laptop in question is sealed and in the custody of Genesco for the Courts consideration, if necessary.
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12.
In the most blatant terms, Defendants conduct violates the confidentiality and
nondisclosure provision contained in section 6 of the Employment Agreement. 13. Section 6 of the Employment Agreement could not be clearer concerning
Defendants obligation to keep proprietary information confidential. Defendants downloading of the proprietary information was clearly motivated by a desire to use the information for his own benefit and/or the benefit of others at a later date. 14. Based on Defendants breach of the Employment Agreement, Genesco Sports has
established a likelihood of prevailing on the merits. VI. CAUSE OF ACTION TORTIOUS INTERFERENCE WITH CONTRACT 15. forth. 16. As detailed above, Defendant signed an Employment Agreement with Plaintiff. Plaintiff incorporates all previous paragraphs herein by reference as if fully set
The Agreement constituted a binding contract between Genesco Sports and Defendant. 17. Defendant violated this Agreement by willfully and intentionally accessing and
downloading confidential business information, programs and trade secrets from Genesco Sports, for the purpose of using the above information to benefit himself and/or others. 18. Genesco Sports has and will continue to incur substantial damages as a direct and
proximate cause of Defendants Tortious Interference with the Contract. VII. CAUSE OF ACTION TEXAS THEFT LIABILITY ACT 19. forth. Plaintiff incorporates all previous paragraphs herein by reference as if fully set
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20.
Defendant is liable to Genesco Sports under the Texas Theft Liability Act, TEX.
CIV. PRAC. & REM. CODE 134.001-005. Genesco Sports has a possessory right to its trade secrets and confidential information. Defendant unlawfully appropriated, secured, and/or stole Genesco Sports property, confidential information, and trade secrets with the intent to deprive Genesco Sports of its property. Specifically, Defendant illegally accessed and downloaded confidential and proprietary information from Genesco Sports internal server, for the purpose of benefiting himself and/or others. As a result, Genesco Sports is entitled to an award of actual, consequential, incidental, and continuing damages proximately caused by Defendants theft. VIII. CAUSE OF ACTION MISAPPROPRIATION OF TRADE SECRETS 21. fully set forth. 22. Genesco Sports owned several trade secrets and/or proprietary and confidential Genesco Sports incorporates all previous paragraphs herein by reference as if
information that was developed by Genesco Sports and stored on Genesco Sports internal servers. Defendant has wrongfully acquired trade secret and/or proprietary and confidential information belonging to Genesco Sports and as further described herein. Defendant has misappropriated Genesco Sports trade secrets and/or proprietary and confidential information for his own use or use by others as evidenced by Defendants theft of the information. 23. Genesco Sports has incurred has incurred substantial damages as a direct and
proximate result of Defendants use and disclosure of Genesco Sports trade secrets and/or proprietary and confidential information.
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IX. CAUSE OF ACTION CONVERSION 24. fully set forth. 25. As detailed above, Defendant wrongfully accessed and used computer files and Genesco Sports incorporates all previous paragraphs herein by reference as if
data belonging to Genesco Sports. These computer files and data were stored on Genesco Sports internal server, and were downloaded to a USB drive and taken by Defendant for his own personal use. 26. Genesco Sports has incurred substantial damages as a direct and proximate result
of Defendants wrongful control and dominion of Genescos property. X. CAUSE OF ACTION BREACH OF FIDUCIARY DUTY 27. fully set forth. 28. Defendant, by virtue of his position within Genesco Sports and access to Genesco Genesco Sports incorporates all previous paragraphs herein by reference as if
Sports trade secrets and confidential information, had a fiduciary relationship with Genesco Sports. Defendant breached his fiduciary duty owed to Genesco Sports by using his access to Genesco Sports confidential information, for his benefit and/or the benefit of others. 29. As a direct and proximate result of Defendants breach, Genesco Sports has
suffered and will continue to suffer loss of the confidentiality of its trade secrets, financial loss, loss of goodwill, and other damages.
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XI. CAUSE OF ACTION COMPUTER FRAUD AND ABUSE ACT 30. fully set forth. 31. Genesco Sports maintains computers and a computer system that are protected Genesco Sports incorporates all previous paragraphs herein by reference as if
computers as the term is defined in 18 U.S.C. 1030(e)(2)(B) because they are used in interstate commerce and communication. 32. Defendant intentionally accessed Genesco Sports computer network without
authorization and/or exceeded authorized access, and obtained information from a protected computer, in violation of 18 U.S.C. 1030(a)(2)(C). 33. Defendant knowingly and with intent to defraud, accessed a protected computer
of Genesco Sports without authorization, and/or exceeded authorized access, and by means of such conduct furthered the intended fraud and obtained valuable information and data from Genesco Sports, in violation of 18 U.S.C. 1030(a)(4). 34. As a result of Defendants conduct, Genesco Sports has suffered damages,
including impairment of the integrity and/or availability of data, programs, systems, and/or information in Genesco Sports computer network, in an amount to be determined at trial. As set forth above in Paragraph 3, Defendants violations of the Computer Fraud and Abuse Act have resulted in damages, as defined in 18 U.S.C. 1030(e)(8), totaling approximately $12,500.00, incurred in the course of Genesco Sports IT Specialist Randy Turners investigation and data recovery.
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XII. CAUSE OF ACTION HARMFUL ACCESS BY COMPUTER 35. fully set forth. 36. Defendant is liable to Genesco Sports under TEX. CIV. PRAC. & REM. CODE Genesco Sports incorporates all previous paragraphs herein by reference as if
143.001 in that Genesco Sports and/or Genesco Sports property has been injured as a result of a violation under Chapter 33, Penal Code. Defendant knowingly and/or intentionally accessed Genesco Sports computer, computer network, and/or computer system without effective consent of Genesco Sports, the owner. 37. As a result of Defendants conduct, Genesco Sports has suffered damages,
including impairment of the integrity and/or availability of data, programs, systems, and/or information in Genesco Sports computer network, in an amount to be determined at trial. XIII. DAMAGES 38. Defendants conduct has violated his Employment Agreement with Genesco
Sports. Defendants conduct has caused harm to Genesco Sports in the form of impairment of the integrity and/or availability of data, programs, systems, and/or information in Genesco Sports computer network. Additionally, Defendant has potentially harmed Genesco Sports future business by releasing confidential and proprietary information to competitors. Specifically, Defendants taking of the information beginning immediately after his tendering his two-week notice of resignation, and continuing up until his last day of work at Genesco Sports, leads to the obvious inference that Defendant took the confidential and proprietary information for the purpose of using same during the course of his future employment with a Genesco Sports competitor and/or his own personal competitor business. Further, the nature of the information
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Defendant stole from Genesco Sports will lead to irreparable harm to Genesco Sports. In this regard, the information stolen contains customer account information, including marketing profiles, strategy and budgets for particular products and events. Such marketing profiles, strategies and budgeting, if forwarded to a Genesco Sports competitor or used in Defendants own competitive business, will lead to an unfair competitive advantage which the other business would not otherwise have if such confidential and proprietary information were not stolen. Consequently, Genesco Sports requests the return of the USB file and that the information in Defendants possession be prohibited from further use, as well as additional monetary damages. XIV. EXEMPLARY DAMAGES 39. Defendants conduct, which represents a blatant and intentional breach of his
Agreement constitutes conduct undertaken with malice as that term is defined in Chapter 41 of the TEX. CIV. PRAC. & REM. CODE, entitling Genesco Sports to recover exemplary damages from Defendant. XV. ATTORNEYS FEES 40. Genesco Sports has retained the undersigned counsel to prosecute this action as
discussed above. Genesco Sports is entitled to recover reasonable and necessary attorneys fees in prosecuting this action pursuant to Chapter 38 of the TEX. CIV. PRAC. & REM. CODE. XVI. REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION 41. It is essential that the Court act immediately. Further, Defendants conduct in
violation of the Agreement poses a real and imminent threat of irreparable injury to Genesco Sports and to the conduct of their business. If the Court does not enter an Order restraining Defendant, then Genesco Sports will continue to be harmed by Defendants conduct. Further,
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Defendants acts will irreparably injure Genesco Sports relationships with its clients resulting in monetary damages, many of which still must be calculated. 42. There is no adequate remedy at law due to the nature of Plaintiffs offense, the
release of confidential and proprietary information. 43. Further, there is a substantial likelihood that Plaintiff will prevail on the merits
based upon the evidence. 44. The harm faced by Plaintiff outweighs the harm that would be sustained by
Defendant if the preliminary injunction were granted; indeed, the exposure of Plaintiffs confidential and proprietary information greatly exceeds any harm Defendant could conceivably suffer. 45. Issuance of a preliminary injunction would not adversely affect the public
interest; rather, the public interest would be served by this Courts issuance of a preliminary injunction. 46. Finally, Plaintiff is willing to post a bond and will abide by the decision which
may be made in this cause, and will pay all sums of money and costs that may be adjudged against Genesco Sports if the Restraining Order shall be dissolved in whole or in part. 47. Based upon the foregoing, Genesco Sports seeks a Temporary Restraining Order
from this Court that restrains Defendant from continuing this conduct as described in this Petition. Specifically, Genesco Sports requests that a Temporary Restraining Order be issued immediately which restrains Defendant in the following respects: (A) Defendant must immediately return the USB drive to which he
downloaded the information described in paragraph IV, above;
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(B)
Defendant must delete the information described in paragraph IV from any
and all other devices to which he has since downloaded said proprietary information; and (C) Defendant must not use, copy, forward, further download or otherwise
disclose the information described in paragraph IV above. 48. Further, Genesco Sports requests a temporary injunction be issued, after notice to
Defendant and an evidentiary hearing, enjoining the following during the pendency of this action or until further order from the Court: (A) Defendant must immediately return the USB drive to which he
downloaded the information described in paragraph IV, above; (B) Defendant must delete the information described in paragraph IV from any
and all other devices to which he has since downloaded said proprietary information; (c) Defendant must not use, copy, forward, further download or otherwise
disclose the information described in paragraph IV above. 49. Plaintiff asks the Court to set its Application for Injunctive Relief for a hearing at
the earliest possible time and, after hearing the request, to issue a preliminary injunction against Defendant. XVII. REQUEST FOR PERMANENT INJUNCTION 50. Plaintiff asks the Court to set its Application for Injunctive Relief for a full trial
on the issues in this Application and, after the trial, to issue a permanent injunction against Defendant, enjoining:
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(A)
Defendant must immediately return the USB drive to which he
downloaded the information described in paragraph IV, above; (B) Defendant must delete the information described in paragraph IV from any
and all other devices to which he has since downloaded said proprietary information; (C) Defendant must not use, copy, forward, further download or otherwise
disclose the information described in paragraph IV above. XVIII. JURY TRIAL DEMANDED 51. Plaintiff hereby demands a trial by jury of all claims to which it is entitled. XIX. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff, Genesco Sports Enterprises, Inc. requests that: 52. A Temporary Restraining Order be issued immediately which restrains Defendant
in the following respects: (A) Defendant must immediately return the USB drive to which he downloaded the information described in paragraph IV, above; Defendant must delete the information described in paragraph IV from any and all other devices to which he has since downloaded said proprietary information; Defendant must not use, forward, further download or otherwise disclose the information described in paragraph IV above.
(B)
(C)
53.
A temporary injunction be issued, after notice to Defendant and an evidentiary
hearing, enjoining the following during the pendency of this action or until further order from the Court:
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(A)
Defendant must immediately return the USB drive to which he downloaded the information described in paragraph IV, above; Defendant must delete the information described in paragraph IV from any and all other devices to which he has since downloaded said proprietary information; Defendant must not use, forward, further download or otherwise disclose the information described in paragraph IV above.
(B)
(C)
54.
A permanent injunction be issued on final trial of this cause, enjoining: (A) Defendant must immediately return the USB drive to which he downloaded the information described in paragraph IV, above; Defendant must delete the information described in paragraph IV from any and all other devices to which he has since downloaded said proprietary information; Defendant must not use, forward, further download or otherwise disclose the information described in paragraph IV above.
(B)
(C)
55.
Genesco Sports further requests that it be awarded damages for Defendants
misconduct, including: (A) (B) (C) (D) (E) 56. Actual damages; Exemplary damages in an amount determined by the trier of fact; Pre-judgment and post-judgment interest as allowed by law; Costs of court; and Attorneys fees.
Genesco Sports requests all further relief and law or equity to which it shows
itself justly entitled.
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Respectfully submitted, GIBSON, McCLURE & WALLACE, L.L.P.
By:
/s/ Jay M. Wallace Jay M. Wallace State Bar No. 20769200 jwallace@gmwllp.com E. Adrienne Jackson State Bar No. 24058795 ajackson@gmwllp.com 8080 North Central Expressway Suite 1300, L.B. 50 Dallas, TX 75206 Tel: 214/891-8040 Fax: 214/891-8019 Counsel for Plaintiff
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EMPLOYMENT AGREEMENT This Employment Agreement (the Agreement), dated and effective as of the 6t1L day of December 2010, by and between Genesco Sports Enterprises, Inc., a Texas Corporation with its principal place of business in Dallas County, Texas (the Company), and Sidney L. White, an individual residing in Dallas County, Texas (the Employee). Company desires to employ Employee, and Employee desires to be employed by Company, under the terms and conditions set forth in this Agreement. NOW, THEREFORE, inconsideration of the foregoing and the mutual covenants set forth herein, Company and Employee, each intending to be legally bound, hereby agree as follows: 1. Employment Relationship. Company hereby employs Employee, and Employee hereby accepts such employment, upon the terms and conditions set forth in this Agreement. Such employment is at-will; either Company or Employee may terminate the employment relationship at any time, with or without cause and with or without advance notice. 2. Position and Responsibilities of Employee. Employee will initially be employed as a Senior Manager of Company. Employees job title may be changed from time to time, at the discretion of the Company management, if such change is appropriate to further Companys business interests. Employee will devote all of Employees business time, skill, energies, abilities, and attention to the performance of his or her employment duties and the furtherance of Companys business interests, and agrees to perform his or her duties (as they may be assigned, changed, or modified by Company from time to time) in good faith and in a manner designed to maintain and increase the goodwill and reputation of Company. Employee acknowledges the existence and validity of the fiduciary duties that Employee owes to Company as a result of Employees employment responsibilities, the trust placed in Employee by Company and the consideration provided to Employee under this agreement, including the duties of loyalty, due care, full disclosure and good faith. Employee further acknowledges receiving a copy of the Companys Employee Handbook, and agrees to comply with the provisions and requirements of that Handbook, as well as any amendments or supplements thereto.
EMPLOYMENT AGREEMENT
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Exhibit "A"
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3. Compensation. For all services rendered by Employee pursuant to this Agreement, Company will pay Employee, and Employee will accept as full compensation hereunder, the following: a. Salary. Employee will receive a base salary (the Salary) of Five Thousand Eight Hundred Thirty-Three & 34/100 Dollars ($5,833.34) per month. The Salary will be subject to all appropriate federal, state, and local withholding requirements and will be payable in accordance with normal payroll practices and procedures of Company. There is no express or implied agreement to raise the Salary thereafter or to guarantee that it will remain at any specified level. While bonuses or other perquisites may also be awarded to Employee from time to time, those amounts are excluded from the term Salary as used in this Agreement. b. Bonuses. In addition to Salary, Employee may, at the sole discretion of Company, be given periodic bonuses during his or her employment. 4. Reimbursement of Expenses. Company recognizes that Employee will incur legitimate business expenses in the course of rendering services to Company hereunder. Accordingly, Company will reimburse Employee for all business expenses that are deemed by Company to be reasonable, necessary, and consistent with Companys established policies and procedures, within a reasonable time period after Company receives acceptable documentation of such expenses. Employee may also be provided with a Company-paid credit card which is to be used solely for legitimate business expenses. To the extent any charges on Company-paid credit card are deemed by Company not to constitute legitimate business expenses, Employee understands and agrees that he or she is obligated to repay such amounts to Company out of his or her next paycheck, and may be subject to disciplinary action including termination. 5. Business Opportunities/Outside Employment. All business opportunities that are offered to Employee during Employees employment (and for a period of one year thereafter) and that relate in any way whatsoever to the business of Company (or any of its affiliates) or are reasonably capable of beneficial use by Company (or any of its affiliates) will be disclosed to Company by Employee and will belong to Company. If Company rejects any such business opportunity, determines that the opportunity is not one that is competitive with Company (or any of its affiliates), and determines that the opportunity does not interfere with the performance of Employees
EMPLOYMENT AGREEMENT Page 2 of 9
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duties under this Agreement, then Company may, at its sole discretion, permit Employee to pursue the opportunity by providing Employee with written notice to do-so, In the absence of such written approval, and in consideration of the benefits payable under this Agreement, Employee agrees that during Employees employment with Company, he or she will not pursue any business opportunities or outside employment that relate in any way to Companys business, that are reasonably capable of beneficial use by Company, that otherwise trade upon Companys business, contacts, clients or reputation or that may interfere with or are in any way inconsistent with Employees full performance of his or her duties hereunder. 6. Promises to Employee. The Company hires employees for a variety of positions, among them project coordination, sales and promotion, client development and administration/clerical. Depending on the position for which Employee is hired, the Company PROMISES to provide Employee the following, which shall, in part, form the basis of the consideration for this Agreement:
1) Access to the Company and the Companys clients Confidential Information (described in Paragraph 7) and trade secrets, including: customer names and related client data; pricing techniques; and related business methods and techniques; 2) Training on the Companys methods of doing business, strategies for marketing client products and services, promotion, and coordination of vendors for client projects and events. 7. Unauthorized Disclosure or Use of Confidential Information: Confidential Materials. (a) Confidential Information. For the purposes of this Agreement, the term Confidential Information means any information regarding Companys, or its clients, businesses that is (1) not generally known to the public and was acquired through the expenditure of time, effort and/or funds, including (but not limited to) existing and contemplated business and financial methods or practices, plans, pricing, marketing and selling techniques and information, training materials, vendor contracts, information related to potential vendors, financial information of Company, client, and employee lists and records, client information, marketing procedures, marketing strategies (i.e., ideas, presentations, videotapes, printed materials, etc.), marketing plan, concepts, labor relations strategies,
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market development information, and confidential or proprietary information relating to Companys policies, strategies, administration or operation, advertising creating and marketing programs, athlete endorsement pricing/elements, brand strategy, client information, financial information, employee information, policies and procedures, strategic alliance information, product news, product pricing, sponsorship pricing/elements, accounts billable, accounts payable, agreements, authorization letters, client contact list, check requests, contracts, employment information, evaluations, financial information, operation manuals, organizational charts, presentations, proposals, timelines and (2) acquired by Employee during the term of Employees employment relationship with Company. (b) Confidential Materials. For the purposes of this Agreement, the term Confidential Materials means any and all Company records, information, papers, media, recordings, files, or computer files or diskettes (and all copies, duplicates, or facsimiles of any of the foregoing) that relate in any way whatsoever to any Confidential Information or to the Companys general business operations and administration. If Employees relationship with Company is terminated for any reason, then Employee will not take any Confidential Materials; rather, Employee will leave all such Confidential Materials, and copies of those materials, with Company. If the Confidential Materials are not on Companys premises at the time of Employees termination, then Employee will return the materials to Companys premises immediately following Employees termination, Employee acknowledges that all Confidential Materials are and will continue to be the property of Company under all circumstances and for all purposes. (c) Confidential Information. Employee acknowledges that, during the course of performing his/her obligations under this Agreement, Employee will be given access to Confidential Information proprietary to Company andJor its Clients.
(d) Client as used in this Agreement shall mean, during the term of Employees employment, any person or entity to which company or any of the Affiliated Agency provides services or at anytime provided services, or from which Company has solicited, is soliciting or plans to solicit business, and after termination of Employees employment, Client shall mean any person or entity to which Company provided services during the two (2) year period prior to Employees termination of employment or from which
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Company was soliciting or planning to solicit business at the time of Employees termination of employment. (e) Covenant Not to Disclose or Use Confidential Information. Employee will not, during Employees employment with Company or at any time thereafter, directly or indirectly, disclose any Confidential information or Confidential Materials, to any person or entity that is not an employee, officer, director, agent, or affiliate of Company unless such disclosure is expressly authorized by Company. Employee will not, during Employees employment or at any time thereafter, directly or indirectly, use any Confidential Information or Confidential Materials in any manner that is not directly and primarily in the best interests of Company unless expressly authorized in writing to do so by Company. (f) Employee further acknowledges and agrees that in the absence of Employees agreement to and compliance with each of the restrictive covenants contained in this Agreement (and any predecessor agreements or understandings between Company and Employee), Company would not give (or have given) Employee access to its Confidential Information, Employee acknowledges and understands that Company is relying upon Employees promise to comply with each of the restrictive covenants contained in this Agreement in making the decision to grant Employee access to Confidential Information and to provide employment to Employee. 8. Developments. (a) Assignments. In further consideration of the benefits obtained by Employee under this Agreement, Employee assigns, agrees to assign, and binds Employees heirs, executors, and administrators to assign to Company, or its successors or assigns, any inventions, ideas, copyrights, trademarks, processes, diagrams, designs, methods, or other improvements whatsoever that are related to Companys business and that are discovered, conceived, trademarked, copyrighted, or developed by Employee, either individually or with others, during the course of Employees employment or by using Companys time, data, facilities, or materials (the Developments), provided the subject matter is of interest to Company, as determined in the sole discretion of Company. If the Developments are related to Employees employment or are collateral or incident to such employment, they will be deemed to have been conceived in the course of Employees employment and will be treated as work for hire, It is immaterial whether a Development occurs to Employee at work, at home,
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or elsewhere. Fields of interest of Company include, but are not limited to, projects that have been worked on in the past, are in process during Employees employment, or are planned for the future. Employee will make full and prompt disclosure in writing to Company of all Developments made or conceived during the term of Employees employment. No royalty or other payment of any kind whatsoever will be payable to Employee as a result of Companys use of any Developments. Employee agrees that the compensation payable under this Agreement is full and adequate consideration for all Developments used by the Company in any way whatsoever. (b) Further Acts. At the request and expense of Company, but without charge by Employee, Employee will promptly perform such acts and execute, acknowledge, and deliver all such papers including (without limitation) patent and trademark applications and copyright registrations, as may be necessary or desirable in the discretion of Company to obtain, maintain, protect, or vest in Company the entire right, title, and interest in and to the Developments and any patents, trademarks, copyrights, or other proprietary rights (or applications therefor) of any kind relating thereto, in all countries of the world, including rendering such assistance as Company may request in any contemplated or pending litigation, U. S. Patent Office proceeding, or other proceeding. 9. Non-Solicitation of Company Employees: Employee promises not to employ or attempt to employ, or to assist any other person or entity in employing or attempting to employ, directly or indirectly, any other person who is an employee of Company or an Affiliated Agency or was an employee of Company at anytime within the ninety (90) days prior to any attempt to employ him or her. This prohibition shall apply during Employees employment and for two (2) years after termination of employment but shall not apply after termination of employment in any circumstance in which neither the loss if a particular employee nor the subsequent employment of the former employee causes Company or the applicable Affiliated Agency any competitive harm, as determined by Company in its sole and good faith discretion.
10. Assignment. This Agreement is personal to Employee and may not be assigned in any way by Employee without the prior written consent of Company. Any attempted assignment by Employee will be void. This Agreement may be assigned by Company to any parent, subsidiary, successor, or affiliate entity. The rights and obligations under this Agreement will inure to the benefit of and will be binding upon the heirs,
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legatees, administrators, and personal representatives of Employee and upon the successors, representatives, and assigns of Company, 11. Illegal or Invalid Provisions. The parties intend for all provisions of this Agreement to be enforced and enforceable to the fullest extent permitted by law. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws in effect during the term hereof~ however, that provision will be fully severable. This Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, and the remaining provisions will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement, Furthermore, in lieu of each such illegal, invalid, or unenforceable provision, there will be added automatically, as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 12. Counterparts. This Agreement may be executed in counterparts, with the same effect as if both parties had signed the same document. All such counterparts will be deemed an original, will be construed together and will constitute one and the same instrument. 13. Notice. Any notice to be given by either party to the other must be in writing and will be deemed to have been given on the date it is delivered personally or by confirmed facsimile transmission or on the third day after it is sent by registered or certified mail, return receipt requested. Notice to Employee will be sufficient if made or addressed to Employees personal residence address as reflected below and updated from time to time in the records of Company, and to Company at the address reflected below. Each party may change the address for notice to such party by giving notice of the change in accordance with the provisions of this paragraph. 14. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to any conflict of laws, rule or principle, which might refer the governance or construction of this Agreement to the laws of another jurisdiction. Subject to the provisions set forth in this Agreement for the severability and reformation of any invalid or unenforceable provisions, this Agreement will at all times and in all events be construed as a whole, according to its fair meaning, and not strictly for or against any party.
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15. Waiver. No waiver by any party, expressed or implied, of a default or breach of any term, covenant, or condition of this Agreement will be deemed to be a waiver of any other or a subsequent default or breach. Failure of a party to declare any default or delay by any party in taking action with respect to a default will not constitute a waiver of such default. 16. Entire Agreement. This Agreement contains the complete and exclusive agreement of Company and Employee concerning Employees employment, and all discussions, agreements, and statements are merged into this Agreement. This Agreement may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought. 17. Remedies. Each party to this Agreement is entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement, and to exercise all other rights existing in its favor. The parties agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in his or her sole discretion, apply to any court of law or equity of competent jurisdiction for injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. 18. Venue. This Agreement is performable, in whole or in part, in Dallas County, Texas. Each Party submits to the jurisdiction of any court of the State of Texas sitting in Dallas County, Texas, or any United States federal court sitting in Dallas County, Texas for the purposes of any court proceeding arising out of this Agreement, and agrees that service of any process, summons, notice, or document by United States registered mail or other available means of delivery to the address set forth below will be effective service of process for any court proceeding brought against such party in any such court. Each party waives any objection to the laying of venue of any court proceeding arising out of this Agreement or any transaction contemplated hereby which is brought in the courts of the State of Texas sitting in Dallas County, Texas or any federal court sitting in Dallas County, Texas, and waives and agrees not to plead or claim in any such court that any such court proceeding brought in any such court has been brought in an inconvenient forum.
Page 8 of 9
Filed 06/20/11
19. Mutual Understanding. Each party has read this entire Agreement, fully understands the contents hereof, has had the opportunity to obtain independent advice as to its legal effect, and is under no duress or obligation of any kind to execute it. This Agreement reflects the mutual understanding of the parties with respect to all subject matter addressed herein and will be construed accordingly.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
Company:
GENESCO SPORTS ENTERPRISES, INC.
Mark T ~ m
General Manager
1845 Woodali Rodgers Freeway Suite 1250 Dallas, Texas 75201 (214) 826-6565 (telephone) (214) 826-6494 (facsimile)
Employee:
Signat ~jt~
Printed Name: Address:
-.
~c~vvi~cc.
Uc~~ ~
_73(
Page 9 of 9

Plaintiff's First Amended Complaint and Application For Injunctive Relief

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Plaintiff's First Amended Complaint and Application For Injunctive Relief

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Case 3:11-cv-01345-N Document 7

Civil Action No.: 3-11cv1345-N Jury