exv10w1



 







Exhibit 10.1




NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION EMPLOYMENT AGREEMENT




     This Non-Disclosure, Non-Competition and Non-Solicitation Employment Agreement (this
“Agreement”) is made by and between Zimmer, Inc. (“Company”) and ____________(“Employee”) as of the
date executed by Company.



Recitals




     A. For purposes of this Agreement, “Parent” means an entity that is a holding company of, or
holds a controlling interest in, Company; “Affiliates” means any subsidiary of Company or Parent of
Company or a company over which Company or Parent has control; and the definition of each of
Company, Parent, and Affiliates, includes any of their successors-in-interest, including, but not
limited to, Zimmer, Inc. (“ZINC”). References herein to Company shall be deemed to include any
Parent or Affiliates where appropriate.



     B. Company, Parent, and the Affiliates are part of the global holdings of Zimmer Holdings,
Inc., a publicly traded corporation incorporated under the laws of the state of Delaware, the
primary purpose of which is to serve as the umbrella entity for ZINC. Company, Parent and the rest
of the Affiliates located throughout the world are engaged in the development, manufacture,
distribution, and sale of orthopaedic-medical, oral-rehabilitation, and/or spine or trauma devices,
products, and services.



Agreement




     NOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein,
those certain benefits contained in each Zimmer Holdings, Inc. 2001 Stock Incentive Plan
Nonqualified Stock Option Grant Agreement to which Employee is a party, those certain benefits
contained in each Zimmer Holdings, Inc. 2001 Stock Incentive Plan Performance Share Award Agreement
to which Employee is a party, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company and Employee agree as follows:



     1. Acknowledgements. Employee acknowledges that Company is engaged in the highly
competitive business of the development, manufacture, distribution, and sale of
orthopaedic-medical, oral-rehabilitation, and/or spine or trauma devices, products, and services.
Employee acknowledges that Employee has responsibility for Company’s competitive position and
financial viability throughout the world and has access to Confidential Information (as hereinafter
defined) relating to all aspects of running the Company. Further, Employee acknowledges that in the
course of Employee’s employment with Company, Employee: (a) has been given and will continue to be
given access to Confidential Information (as hereinafter defined); (b) has participated and will
continue to participate in the development and/or usage of inventions, products, concepts, methods,
or technologies that are related to Company’s business; (c) has been given and will continue to be
given specialized, proprietary training relating to



 









 







Company’s products, processes, and Confidential
Information; and/or (d) has been given and will continue to be given access to Company’s customers
and other business relationships.



     2. Termination of Employment. Company and Employee acknowledge and agree that
Employee’s employment is on an at-will basis, and accordingly, either Company or Employee may
terminate the employment relationship at any time for any reason, or no reason whatsoever, with or
without cause, and without advance notice.



     3. Non-Disclosure of Confidential Information. Employee acknowledges that
Confidential Information is a valuable, special, and unique asset of Company, Parent, and the
Affiliates and agrees to the following:




(A) Confidential Information Defined. “Confidential Information” includes,
without limitation, any and all of Company’s, Parent’s, or Affiliates’ Trade Secrets
(as defined by the law of the State of Indiana ), Inventions (as defined herein),
confidential and proprietary information and all other information and data of
Company that is not generally known to the public or other third parties, who could
derive economic value from its use or disclosure. Confidential Information
includes, without limitation, the following: (i) marketing, sales, and advertising
information, such as lists of actual or potential customers; customer-preference
data; marketing and sales techniques, strategies, efforts, and data; merchandising
systems and plans; confidential customer information including identification of
purchasing personnel, account status, needs and ability to pay; business plans;
product development and delivery schedules; market research and forecasts; marketing
and advertising plans, techniques, and budgets; overall pricing strategies; specific
advertising programs and strategies utilized, and the success or lack of success of
those programs and strategies; (ii) organizational information, such as personnel
and salary data; merger, acquisition and expansion information; information
concerning methods of operation; divestiture information; and competitive
information pertaining to Company’s distributors; (iii) financial information such
as product costs; supplier information; overhead costs; profit margins; banking and
financing information; and pricing-policy practices; (iv) technical information,
such as product specifications, compounds, formulas, improvements, discoveries,
developments, designs, inventions, techniques, new products and surgical-training
methods; (v) information disclosed to Employee as part of any specialized,
proprietary training process; (vi) information of third parties provided to Employee
subject to non-disclosure restrictions for use in Employee’s business for Company;
and (vii) any work product created by Employee in rendering services for Company.




(B) Non-Disclosure of Confidential Information. Employee agrees that
Employee will not disclose, transfer, or use (or seek to induce others to disclose,
transfer, or use) any Confidential Information for any purpose other than: (i)
disclosure to authorized employees and agents of Company who are bound to maintain
the confidentiality of the Confidential Information; and/or (ii) for



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authorized
purposes during the course of Employee’s employment in furtherance of Company’s
business.




(C) Protection of Confidential Information. Employee will notify Company in
writing of any circumstances that may constitute unauthorized disclosure, transfer,
or use of Confidential Information. Employee will use best efforts to protect
Confidential Information from unauthorized disclosure, transfer, or use. Employee
will implement and abide by all procedures adopted by Company to prevent
unauthorized disclosure, transfer, or use of Confidential Information.



     4. Ownership of Confidential Information and Inventions.




(A) Invention Defined. “Invention” includes, without limitation, ideas,
programs, processes, systems, intellectual property, works of authorship,
copyrightable materials, discoveries, and improvements of which Employee conceives,
alone or in conjunction with others, during Employee’s employment with Company or
within six (6) months after Employee’s employment ends and that relate to Company’s
present or future business. An Invention is covered by this Agreement regardless of
whether (i) Employee conceived of the Invention in the scope of Employee’s
employment; and/or (ii) the Invention is patentable.




(B) Ownership of Confidential Information and Inventions. Confidential
Information and Inventions are solely the property of Company. Employee agrees that
Employee does not have any right, title, or interest in any of the Confidential
Information or Inventions. Employee may be recognized as the inventor of an
Invention without retaining any other rights associated therewith.




(C) Disclosure and Assignment of Inventions. Employee hereby assigns to
Company all right, title and interest that Employee may have in any Inventions that
are developed, made, authored, or conceived by Employee (whether alone or with
others) during Employee’s employment with Company. Employee agrees to: (i) promptly
disclose all such Inventions in writing to Company; (ii) keep complete and accurate
records of all such Inventions, which records shall be Company property and shall be
retained on Company premises; and (iii) execute such documents and do such other
acts as may be necessary in the opinion of Company to establish and preserve
Company’s property rights in all such Inventions. This Section shall not apply to
any Invention for which no equipment, supplies, facility, or Confidential
Information of Company was used and that was developed entirely on Employee’s own
time, and (1) that does not relate (a) directly to the business of Company or (b) to
Company’s actual or demonstrably anticipated research or development, or (2) that
does not result from any work performed by Employee for Company.



     5. Return of Confidential Information and Company Property. Immediately upon
termination of Employee’s employment with Company, Employee shall return to Company all of
Company’s property relating to Company’s business, including, without limitation, all of



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Company’s
property that is in the possession, custody, or control of Employee such as Confidential
Information, computers, access cards/keys, Company identification badge, documents, hard-copy
files, copies of documents and any electronic information/files.



     6. Obligations to Other Entities or Persons. Employee warrants that Employee is not
bound by the terms of any confidentiality agreement or any other legal obligation that would either
preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions,
discoveries, or other information or otherwise fulfilling Employee’s obligations to Company. While
employed by Company, Employee shall not disclose or use any confidential information belonging to
any entity or any other person in violation of a contractual agreement prohibiting such disclosure
or use or in violation of applicable laws.



     7. Conflict of Interest and Duty of Loyalty. During Employee’s employment with
Company, Employee shall not engage, directly or indirectly, in any activity, employment or business
venture, whether or not for remuneration, that is: (i) competitive with Company’s business; (ii)
deprives or potentially could deprive Company of any business opportunity; (iii) conflicts or
potentially could conflict with Company’s business interests; or (iv) is otherwise detrimental or
potentially detrimental to Company, including preparations to engage in any of the foregoing
activities.



     8. Non-Competition Covenants. Company and Employee acknowledge and agree that the
following non-competition covenants are reasonable and necessary to protect the legitimate
interests of Company, Parent, and Affiliates, including, without limitation, the protection of
Confidential Information and Inventions. Employee further acknowledges and agrees that such
covenants are an essential part of, and consideration for, Company’s promises contained in this
Agreement. Employee agrees to, and covenants to comply with, each of the following separate and
divisible restrictions:




(A) Definitions.




1. “Competing Product” includes any orthopaedic, oral-rehabilitation, spine
or trauma device, product, or service, including any new product
formulation, product modification, and/or product improvement (a) that
resembles or competes with a device, product or service Company, Parent, or
Affiliate researched, developed, manufactured, marketed, distributed, or
sold during Employee’s last two years of employment with Company and (b)
with which the Employee worked in the course of Employee’s last two years of
employment with Company or about which the Employee obtained Confidential
Information in the course of the Employee’s last two years of employment
with Company.




2. “Competing Organization” includes: (a) any organization, or any division
or unit of an organization, that researches, develops, manufactures,
markets, distributes or sells any Competing Product; or (b) any
organization, or any division or unit of an organization, that plans to



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research, develop, manufacture, market, distribute, or sell any Competing
Product.




3. “Diversified Competing Organization” includes any Competing Organization
that controls or is under common control with entities that conduct business
in an industry other than the orthopaedic, oral-rehabilitation,
spine-implant or trauma products industries.




4. “Same or Similar Capacity” includes: (a) duties, responsibilities, or
functions, the Employee is expected to perform or does perform for a
Competing Organization which are the same as, or similar to, the Employee’s
duties, responsibilities, or functions during the last two years of
Employee’s employment with Company; b) any executive or managerial capacity;
or c) any other capacity in which Employee’s knowledge of Confidential
Information or Inventions would constitute a competitive disadvantage to
Company if used on behalf of the Competitive Organization.




5. “Restricted Geographic Area” includes: (a) for an Employee who has
duties, responsibilities, or functions with Company-wide impact and whose
position is classified as a salary grade Z7 or Z8 or any equivalent or
higher salary grade including a member of Company’s Operating Committee, the
Restricted Geographic Area includes the following divisible geographic areas
(i) the continental United States; (ii) Canada; (iii) Latin America; (iv)
Asia/Australia; (v) all countries of the European Union; (vi) Switzerland;
and/or vii) all other countries, territories, or states in which the
Employee was responsible for cultivating or maintaining competitive
advantages on Company’s behalf; and b) for all other employees, the
Restricted Geographic Area includes the following divisible geographic
areas i) the continental United States; and/or ii) the territory or state in
which the Employee was responsible for cultivating or maintaining
competitive advantages on Company’s behalf, during the last two years of
Employee’s employment with Company.




6. “Non-Competition Period” begins the date Employee executes this
Agreement, continuing through the eighteen (18) months after the Employee’s
last day of employment with Company unless otherwise extended by Employee’s
breach of this Agreement. The Non-Competition Period shall not expire
during any period in which Employee is in violation of any of the
restrictive covenants set forth herein, and all restrictions shall
automatically be extended by the period Employee was in violation of any
such restrictions.




7. “Customer” includes, without limitation, any distributor, health care
provider, health care dealer, hospital, hospital system, university
practitioner, surgeon, dentist, health care purchasing organization, or



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surgical group with which the Employee had a business relationship on behalf
of Company during the last two years of Employee’s employment with Company
and that (a) purchased, marketed, or distributed any competing products
during the last two years of Employee’s employment; (b) participated in or
influenced the purchasing decisions of any Customer of the Company; or (c)
used Company’s devices, products, or services purchased by a Customer of the
Company.




8. “Potential Customer” includes, without limitation, any distributor,
health care provider, health care dealer, hospital, hospital system,
university practitioner, surgeon, dentist, health care purchasing
organization, or surgical group which Employee identified, marketed to, or
held discussions with regarding the research, development, manufacture,
distribution, or sale of any Competing Products during the last two years of
Employee’s employment with Company.




     (B) Restrictive Covenants. During the Non-Competition Period, Employee agrees
to be bound by each of the following independent and divisible restrictions:




1. Employee will not seek or obtain employment with, work for, consult with,
or lend assistance to any Competing Organization in a Same or Similar
Capacity in the Restricted Geographic Area.




2. Employee will not seek or obtain employment with, work for, consult with,
or lend assistance to any Competing Organization in any capacity if it is
likely that as part of such capacity, Employee would inevitably use or
disclose any of Company’s Confidential Information or Inventions.




3. Employee will not seek or obtain employment with, work for, consult with,
or lend assistance to any Competing Organization in any capacity involving
any Competing Product.




4. Employee may accept employment with, work for, consult with, or lend
assistance to any Diversified Competing Organization provided that (a) the
division or unit of the Diversified Competing Organization with which
Employee will be affiliated is not a Competing Organization; (b) the
Employee’s affiliation with the Diversified Competing Organization does not
involve any Competing Product; (c) Employee provides Company with a written
description of Employee’s anticipated activities on behalf of the
Diversified Competing Organization; (d) Employee’s affiliation with the
Diversified Competing Organization would not likely cause Employee to
inevitably use and/or disclose any Confidential Information; and (e)
Employee’s affiliation with the Diversified Competing Organization does not
constitute a competitive disadvantage to Company.



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5. Employee will not seek or obtain employment with, work for, consult with,
or lend assistance to any Customers or Potential Customers in the Restricted
Geographic Area in a competitive capacity in which Employee’s knowledge of
Company’s Confidential Information would inevitably be used to Company’s
competitive disadvantage or for a competitive purpose.




6. Employee will not solicit, attempt to solicit, or engage in discussions
or other communications with any Customer or Potential Customer with the
purpose or intent of promoting, marketing, selling, or obtaining orders for
any Competing Product.




7. Employee will not interfere adversely with past, present, or prospective
business relationships between Company and any of its Customers, Potential
Customers, suppliers, distributors, agents, sales representatives,
employees, independent contractors, or other persons or entities with which
Company, Parent, or Affiliates conduct business.




8. Employee will not employ, engage in personal service or favor (whether or
not for compensation), solicit for employment, advise or recommend to any
other person or entity that such person or entity employ, or solicit for
employment, any individual employed by Company during the last two years of
Employee’s employment with Company, or otherwise induce or entice any such
employee to leave employment with Company to work for, consult with, or lend
assistance to any Competing Organization.




9. Employee agrees to refrain from making any disparaging or derogatory
statements about Company, its products, Parent, and any Affiliates, together
with their past, present and future officers, directors, employees,
attorneys, and agents. Disparaging or derogatory statements include, but
are not limited to, negative statements regarding Company’s business or
other practices.




10. Employee agrees that the divisible covenants contained in this Agreement
prohibit Employee from engaging in the restricted activities whether on
Employee’s behalf or on behalf of, or for the benefit of, any other person
or entity.



     9. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive
covenants contained in this Agreement are reasonably necessary to protect Company’s, Parent’s, and
Affiliates’ legitimate interests in Confidential Information, Inventions, and goodwill.
Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all
respects, including, but not limited to, temporal duration, scope of prohibited activities, and
geographic area. Employee further acknowledges and agrees that the restrictive



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covenants set forth
in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able
to earn an equivalent livelihood without violating any provision of this Agreement.



     10. Non-Competition Period Payments. To the extent Employee is unable to obtain
employment consistent with Employee’s training and education solely because of the provisions of
this Agreement and to the extent that Employee is not otherwise entitled to compensation pursuant
to a change in control arrangement, the following terms will apply upon expiration of any severance
benefits to which Employee is otherwise eligible to receive:




a. Calculation of Payments: (i) Company will make payments to Employee equal to
Employee’s monthly base pay at the time of Employee’s termination (exclusive of
extra compensation and any other employee benefits) for each month of such
unemployment through the end of the Non-Competition Period; or (ii) to the extent
Employee is able to obtain employment consistent with the Employee’s skill and
education that does not violate this Agreement, but solely because of this
Agreement, the monthly base pay for the replacement employment is less than
Employee’s monthly base pay at the time of Employee’s termination, Company agrees to
pay the difference in monthly base pay for each such month through the end of the
Non-Competition Period.




b. Written Explanation: To continue to be eligible for Non-Competition Period
Payments, on the 15th (fifteenth) day of each month of unemployment,
Employee will provide Company with a detailed written account of Employee’s efforts
to obtain employment, including a statement explaining that Employee was unable to
obtain replacement employment solely due to the provisions of this Agreement, or a
statement explaining that the Employee’s monthly base pay for his replacement
employment is less than at Company and Employee could not obtain a position
financially comparable to his position at Company solely because of this Agreement.




c. Cessation/Suspension of Non-Competition Payments: To the extent that Employee
breaches any provision of this Agreement during the Non-Competition Period or fails
to timely submit the written explanation required by Section 10b, Company reserves
the right to cease making any Non-Competition Payments. In the event of (i) the
cessation of non-competition payments due to Employee’s breach; or (ii) suspension
of non-competition payments during a period of time when a dispute over employee’s
conduct and/or breach is being addressed through legal action or otherwise, Employee
agrees that Employee will still be bound by all of the provisions set forth in this
Agreement, including, but not limited to, the non-competition, non-solicitation,
non-disparagement and non-disclosure covenants.




d. Release from Agreement: Company reserves the right to release Employee from
Employee’s obligations set forth in this Agreement at any time. To the extent that
the Company exercises its right to release Employee from this



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Agreement, Company’s
payment obligations under this section shall cease immediately and Employee shall
not be entitled to any Non-Competition Period Payments.



     11. Severability and Modification of Restrictions: The covenants and restrictions in
this Agreement are separate and divisible, and to the extent any clause, portion, or section of
this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee
acknowledge and agree that such unenforceability or invalidity shall not affect the enforceability
or validity of the remainder of the Agreement. If any particular covenant, provision, or clause of
this Agreement is determined to be unreasonable or unenforceable for any reason, including, without
limitation, the temporal duration, scope of prohibited activity, and/or geographic area covered by
any non-competition, non-solicitation, non-disparagement or non-disclosure covenant, provision, or
clause, Company and Employee acknowledge and agree that such covenant, provision, or clause shall
automatically be deemed reformed such that the contested covenant, provision, or clause will have
the closest effect permitted by applicable law to the original form and shall be given effect and
enforced as so reformed to whatever extent would be reasonable and enforceable under applicable
law. The parties agree that any court interpreting this Agreement shall have the authority, if
necessary, to reform the Agreement to render it enforceable under applicable law.



     12. Remedies. Employee acknowledges that a breach or threatened breach by Employee of
this Agreement will give rise to irreparable injury to Company and that money damages will not be
adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to
obtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary
injunctions, or permanent injunctions, without having to post any bond or other security, to
restrain or prohibit such breach or threatened breach, in addition to any other legal remedies that
may be available. In addition to all other relief to which it shall be entitled, Company shall be
entitled to cease or suspend all payments to which Employee would otherwise be entitled under
Section 10 hereto; continue to enforce this Agreement; recover from Employee all payments made
under Section 10 to the extent attributable to a time during which Employee was in violation of the
covenants for which payment was made; and recover from Employee all litigation costs and attorneys’
fees incurred by Company in any action or proceeding relating to this Agreement in which Company
prevails, including, but not limited to, any action or proceeding in which Company seeks
enforcement of this Agreement or seeks relief from Employee’s violation of this Agreement.



     13. Survival of Obligations. Employee acknowledges and agrees that Employee’s
obligations under this Agreement, including, without limitation, Employee’s non-competition,
non-solicitation and non-disclosure obligations, shall survive the termination of Employee’s
employment with Company, whether such termination is with or without cause or whether such
termination is voluntary or involuntary. Employee further acknowledges and agrees that all
covenants set forth in this Agreement shall be construed as independent covenants and that no
breach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate
the Employee’s obligations under this Agreement or to preclude Company from obtaining injunctive
relief or other remedies for Employee’s violation or threatened violation of such covenants.



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     14. Governing Law and Choice of Forum. This Agreement shall be construed and enforced
in accordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law
rules to the contrary. The parties agree that any legal action relating to this Agreement shall be
commenced and maintained exclusively before any appropriate state court located in Kosciusko
County, Indiana, or the United States District Court for the Northern District of Indiana, South
Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to
challenge or otherwise object to personal jurisdiction or venue, in any action commenced or
maintained in such courts.



     15. Successors and Assigns. Company shall have the right to assign this Agreement,
and, accordingly, this Agreement shall inure to the benefit of, and may be enforced by, any and all
successors and assigns of Company, including, without limitation, by asset assignment, stock sale,
merger, consolidation or other corporate reorganization, and shall be binding on Employee and
Employee’s executors, administrators, personal representatives, or other successors-in-interest.
The services to be provided by Employee to Company are personal to Employee, and Employee shall not
have the right to assign Employee’s duties under this Agreement.



     16. Modification. This Agreement may not be amended, supplemented, or modified except
by a written document signed by both Employee and a duly-authorized officer of Company.



     17. No Waiver. The failure of Company to insist upon performance of any of the
provisions of this Agreement or to pursue its rights hereunder shall not be construed as a waiver
of any such provisions or the relinquishment of any such rights.



     18. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but each of which when taken together will constitute one and the same
agreement.



     19. Entire Agreement. This Agreement, including Recitals, constitutes the entire
agreement of the parties with respect to the subjects specifically addressed herein, and supersedes
any prior agreements, understandings, or representations, oral or written, on the subjects
addressed herein, excluding any Change in Control Severance Agreement between Employee and Parent.
Notwithstanding the foregoing, to the extent the employee has an existing non-competition,
confidentiality, or non-solicitation agreement in favor of Company and has breached or violated the
terms thereof, Company may continue to enforce its rights and remedies under and pursuant to such
existing agreement.




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     Employee’s signature below indicates that Employee has been given ample time to consider the
entire Agreement, Employee has read the entire Agreement, Employee understands what Employee is
signing, and Employee is signing it voluntarily. Employee agrees that Company advised Employee to
consult with an attorney prior to signing the Agreement.



	 	 	 	 	 
	 	“COMPANY”





Zimmer, Inc.

 	 
	 	By:  	 	 
	 	 	Printed: 	 
	 	 	Title:  	 	 
	 
	 	Dated: __________ ___, 2006 	 
	 
	 	“EMPLOYEE”

 	 
	 	
 	 
	 	Printed: 	 
	 
	 	Dated: __________ ___, 2006 	 
	 




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