This Employment Agreement defines
the essential terms and conditions of our employment
relationship with you. The subjects covered in this Agreement are
vitally important to you and to
the Company. Thus, you should read the document carefully and ask
any questions before
signing the Agreement. Given the importance of these matters to you
and the Company, you are
required to sign the Agreement as a condition of
employment.
This EMPLOYMENT AGREEMENT, dated and effective
this _____ day of June, 2008, is entered into by and
between Hillenbrand, Inc. (“Company”) and Joe A. Raver
(“Employee”).
WHEREAS, the Company is engaged in the design,
manufacture, promotion and sale of funeral and burial-related
products and services throughout the United States and North
America including, but not limited to, burial caskets, cremation
products and other memorial products.
WHEREAS, the Company is willing to employ
Employee in an executive or managerial position at one or more of
the Companies (hereafter defined) and Employee desires to be
employed by the Company in such capacity or capacities based upon
the terms and conditions set forth in this Agreement;
WHEREAS, in the course of the employment
contemplated under this Agreement it will be necessary for Employee
to acquire and maintain knowledge of certain trade secrets and
other confidential and proprietary information regarding the
Company as well as any of its parent, subsidiary and/or affiliated
entities (hereinafter jointly referred to as the
“Companies”); and
WHEREAS, the Company and Employee (individually
referred to as a “Party” and collectively referred to
as the “Parties”) acknowledge and agree that the
execution of this Agreement is necessary to memorialize the terms
and conditions of their employment relationship as well as to
safeguard against the unauthorized disclosure or use of the
Company’s confidential information and to otherwise preserve
the goodwill and ongoing business value of the Company;
NOW THEREFORE, in consideration of
Employee’s employment, the Company’s willingness to
disclose certain confidential and proprietary information to
Employee and the mutual covenants contained herein as well as other
good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
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1.
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Employment . As of the effective
date of this Agreement, the Company agrees to employ Employee and
Employee agrees to serve (a) as the President and Chief
Operating Officer of Batesville Casket Company, Inc. and of such
other of the Company’s operating subsidiaries as shall be
determined by the Company from time to time, and (b) in such
other offices and positions in the Company and other Companies as
the Company and Employee shall from time to time mutually agree.
Employee agrees to perform all duties and responsibilities
traditionally assigned to, or falling within the normal
responsibilities of, an individual employed in the above-referenced
positions. Employee also agrees to perform any and all additional
duties or responsibilities as may be assigned by the Company in its
sole discretion. The Parties acknowledge that both Employee’s
title and the underlying duties may change.
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2.
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Best Efforts and Duty of
Loyalty . During the term of
employment with the Company, Employee covenants and agrees to
exercise reasonable efforts to perform all assigned duties in a
diligent and professional manner and in the best interest of the
Company. Employee agrees to devote Employee’s full working
time, attention, talents, skills and best efforts to further the
Company’s business and agrees not to take any action, or make
any omission, that deprives the Company of any business
opportunities or otherwise act in a manner that conflicts with the
best interest of the Company or is otherwise detrimental to its
business. Employee agrees not to engage in any outside business
activity, whether or not pursued for gain, profit or other
pecuniary advantage, without the express written consent of the
Company. Employee shall act at all times in accordance with the
Company’s Code of Ethical Business Conduct, and all other
applicable policies which may exist or be adopted by the Company
from time to time.
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3.
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At-Will Employment
. Subject to
the terms and conditions set forth below, Employee specifically
acknowledges and accepts such employment on an
“at-will” basis and agrees that both Employee and the
Company retain the right to terminate this relationship at any
time, with or without cause, for any reason not prohibited by
applicable law upon notice as required by this Agreement. Employee
acknowledges that nothing in this Agreement is intended to create,
nor should be interpreted to create, an employment contract for any
specified length of time between the Company and
Employee.
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4.
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Compensation
. For all
services rendered by Employee on behalf of, or at the request of,
the Company, Employee shall be paid as follows:
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(a)
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A base salary at the bi-weekly rate
of Fifteen Thousand Three Hundred Eighty-Four Dollars and Sixty-One
Cents ($15,384.61), less usual and ordinary deductions;
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(b)
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The other compensation and benefits
described in (and subject to the terms of) the attached offer of
employment letter to Employee dated June _____ , 2008,
from Kenneth A. Camp, as Chief Executive Officer of Hillenbrand,
Inc., subject, however, to the terms of this Agreement;
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(c)
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Incentive compensation, payable
solely at the discretion of the Company, pursuant to the
Company’s existing Incentive Compensation Program or any
other program as the Company may establish in its sole discretion;
and
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(d)
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Such additional compensation,
benefits and perquisites as the Company may deem
appropriate.
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5.
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Changes to Compensation
. Notwithstanding
anything contained herein to the contrary, Employee acknowledges
that the Company specifically reserves the right to make changes to
Employee’s compensation in its sole discretion including, but
not limited to, modifying or eliminating a compensation component.
The Parties agree that such changes shall be deemed effective
immediately and a modification of this Agreement unless, within
seven (7) days after receiving notice of such change, Employee
exercises Employee’s right to terminate this Agreement
without cause or for “Good Reason” as provided below in
Paragraph No. 11. The Parties anticipate that
Employee’s compensation structure will be reviewed on an
annual basis but acknowledge that the Company shall have no
obligation to do so.
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6.
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Direct Deposit
. As a
condition of employment, and within thirty (30) days of the
effective date of this Agreement, Employee agrees to make all
necessary arrangements to have all sums paid pursuant to this
Agreement direct deposited into one or more bank accounts as
designated by Employee.
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7.
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Warranties and
Indemnification . Employee warrants that
Employee is not a party to any contract, restrictive covenant, or
other agreement purporting to limit or otherwise adversely
affecting Employee’s ability to secure employment with the
Company or any other potential employer. Alternatively, should any
such agreement exist, Employee warrants that the existence thereof
has been disclosed to the Company and that the contemplated
services to be performed hereunder will not violate the terms and
conditions of any such agreement. In either event, Employee agrees
to fully indemnify and hold the Company harmless from any and all
claims arising from, or involving the enforcement of, any such
restrictive covenants or other agreements.
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8.
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Restricted Duties
. Employee
agrees not to disclose, or use for the benefit of the Company, any
confidential or proprietary information belonging to any
predecessor employer(s) that otherwise has not been made public and
further acknowledges that the Company has specifically instructed
Employee not to disclose or use such confidential or proprietary
information. Based on Employee’s understanding of the
anticipated duties and responsibilities hereunder, Employee
acknowledges that such duties and responsibilities will not compel
the disclosure or use of any such confidential and proprietary
information.
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9.
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Termination Without
Cause . The Parties agree that
either Party may terminate this employment relationship at any
time, without cause, upon sixty (60) days’ advance
written notice or, if terminated by the Company, pay in lieu of
notice (hereinafter referred to as “notice pay”) if the
Company so elects. In such event, Employee shall only be entitled
to such compensation, benefits and perquisites that have been paid
or fully accrued as of the effective date of Employee’s
separation and as otherwise explicitly set forth in this Agreement.
However, in no event shall Employee be entitled to notice pay if
Employee is eligible for and accepts severance payments pursuant to
the provisions of Paragraphs 16 and 17, below.
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10.
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Termination With Cause
. Employee’s
employment may be terminated by the Company at any time “for
cause” without notice or prior warning. For purposes of this
Agreement, “cause” shall mean the Company’s good
faith determination that Employee has:
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(a)
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Acted with gross neglect or willful
misconduct in the discharge of Employee duties and responsibilities
or refused to follow or comply with the lawful direction of the
Company or the terms and conditions of this Agreement, providing
such refusal is not based primarily on Employee’s good faith
compliance with applicable legal or ethical standards;
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(b)
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Acquiesced or participated in any
conduct that is dishonest, fraudulent, illegal (at the felony
level), unethical, involves moral turpitude or is otherwise illegal
and involves conduct that has the potential, in the Company’s
reasonable opinion, to cause the Company or any of the Companies
and/or their officers or directors embarrassment or
ridicule;
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(c)
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Violated a material requirement of
any Company policy or procedure, specifically including a violation
of the Company’s Code of Ethics or Associate Policy
Manual;
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(d)
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Disclosed without proper
authorization any trade secrets or other Confidential Information
(as defined herein);
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(e)
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Engaged in any act that, in the
reasonable opinion of the Company, is contrary to the best
interests of any of the Companies or would hold any of them or
their officers or directors up to probable civil or criminal
liability, provided that, if Employee acts in good faith in
compliance with applicable legal or ethical standards, such actions
shall not be grounds for termination for cause; or
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(f)
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Engaged in such other conduct
recognized at law as constituting cause.
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Upon the occurrence or discovery of
any event specified above, the Company shall have the right to
terminate Employee’s employment, effective immediately, by
providing notice thereof to Employee without further obligation to
Employee other than accrued wages or other accrued wages, deferred
compensation or other accrued benefits of employment (collectively
referred to herein as “Accrued Obligations”), which
shall be paid in accordance with the Company’s past practice
and applicable law. To the extent any violation of this Paragraph
is capable of being promptly cured by Employee (or cured within a
reasonable period to the Company’s satisfaction), the Company
agrees to provide Employee with a reasonable opportunity to so cure
such defect. Absent written mutual agreement otherwise, the Parties
agree in advance that it is not possible for Employee to cure any
violations of sub-paragraph (b) or (d) and, therefore, no
opportunity for cure need be provided in those
circumstances.
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11.
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Termination by Employee for Good
Reason .
Employee may terminate this Agreement and declare this Agreement to
have been terminated “without cause” by the Company
(and, therefore, for “Good Reason”) upon the
occurrence, without Employee’s consent, of any of the
following circumstances:
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(a)
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The assignment to Employee of
duties lasting more than sixty (60) days that are materially
inconsistent with Employee’s then current position or a
material change in Employee’s reporting
relationship;
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(b)
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The failure to elect or reelect
Employee as President and Chief Operating Officer of Batesville
Casket Company, Inc. (unless such failure is related in any way to
the Company’s decision to terminate Employee for
cause);
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(c)
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The failure of the Company to
continue to provide Employee with office space, related facilities
and support personnel (including, but not limited to,
administrative and secretarial assistance) within the
Company’s principal executive offices commensurate with his
responsibilities to, and position within, the Company;
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(d)
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A reduction by the Company in the
amount of Employee’s base salary or the discontinuation or
reduction by the Company of Employee’s participation at the
same level of eligibility as compared to other peer employees in
any incentive compensation, additional compensation, benefits,
policies or perquisites subject to Employee understanding that such
reduction(s) shall be permissible if the change applies in a
similar way to other peer level employees;
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(e)
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The relocation of the
Company’s principal executive offices or Employee’s
place of work to a location requiring a change of more than fifty
(50) miles in Employee’s daily commute; or
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(f)
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A failure by the Company to perform
its obligations under this Employment Agreement that is not cured
by the Company promptly after written notice of such failure is
given to the Company by Employee.
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12.
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Termination Due to Death or
Disability .
In the event Employee dies or suffers a disability (as defined
herein) during the term of employment, this Agreement shall
automatically be terminated on the date of such death or disability
without further obligation on the part of the Company other than
the payment of Accrued Obligations. For purposes of this Agreement,
Employee shall be considered to have suffered a
“disability” upon a determination by the Company, or an
admission by Employee, that Employee cannot perform the essential
functions of Employee’s position as a result of a such a
disability and the occurrence of one or more of the following
events:
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(a)
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Employee becomes eligible for or
receives any benefits pursuant to any disability insurance policy
as a result of a determination under such policy that Employee is
permanently disabled;
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(b)
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Employee becomes eligible for or
receives any disability benefits under the Social Security Act;
or
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(c)
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A good faith determination by the
Company that Employee is and will likely remain unable to perform
the essential functions of Employee’s duties or
responsibilities hereunder on a full-time basis, with or without
reasonable accommodation, as a result of any mental or physical
impairment.
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Notwithstanding anything expressed
or implied above to the contrary, the Company agrees to fully
comply with its obligations under the Family and Medical Leave Act
of 1993 and the Americans with Disabilities Act as well as any
other applicable federal, state, or local law, regulation, or
ordinance governing the provision of leave to individuals with
serious health conditions or the protection of individuals with
disabilities as well as the Company’s obligation to provide
reasonable accommodation thereunder.
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13.
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Exit Interview
. Upon termination of
Employee’s employment for any reason, Employee agrees, if
requested, to participate in an exit interview with the Company and
reaffirm in writing Employee’s post-employment obligations as
set forth in this Agreement
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14.
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Section 409A
Notification . Employee acknowledges that
Employee has been advised of the American Jobs Creation Act of
2004, which added Section 409A to the Internal Revenue Code
(“Section 409A”), and significantly changed the
taxation of nonqualified deferred compensation plans and
arrangements. Under proposed and final regulations as of the date
of this Agreement, Employee has been advised that Employee’s
severance pay and other termination benefits may be treated by the
Internal Revenue Service as providing “nonqualified deferred
compensation,” and therefore subject to Section 409A. In
that event, several provisions in Section 409A may affect
Employee’s receipt of severance compensation, including the
timing thereof. These include, but are not limited to, a provision
which requires that distributions to “specified
employees” of public companies on account of separation from
service may not be made earlier than six (6) months after the
effective date of such separation. If applicable, failure to comply
with Section 409A can lead to immediate taxation of such
deferrals, with interest calculated at a penalty rate and a 20%
penalty. As a result of the requirements imposed by the American
Jobs Creation Act of 2004, Employee agrees that if Employee is a
“specified employee” at the time of Employee’s
termination of employment and if payments in connection with such
termination of employment are subject to Section 409A and not
otherwise exempt, such payments (and other benefits to the extent
applicable) due Employee at the time of termination of employment
shall not be paid until a date at least six (6) months after
the effective date of Employee’s termination of employment
(“Employee’s Effective Termination Date”).
Notwithstanding any provision of this Agreement to the contrary, to
the extent that any payment under the terms of this Agreement would
constitute an impermissible acceleration of payments under
Section 409A or any regulations or Treasury guidance
promulgated thereunder, such payments shall be made no earlier than
at such times as allowed under Section 409A. If any provision
of this Agreement (or of any award of compensation) would cause
Employee to incur any additional tax or interest under
Section 409A or any regulations or Treasury guidance
promulgated thereunder, the Company or its successor may reform
such provision; provided that it will (i) maintain, to the
maximum extent practicable, the original intent of the applicable
provision without violating the provisions of Section 409A and
(ii) notify and consult with Employee regarding such
amendments or modifications prior to the effective date of any such
change.
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15.
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Section 409A
Acknowledgement . Employee acknowledges that,
notwithstanding anything contained herein to the contrary, both
Parties shall be independently responsible for assessing their own
risks and liabilities under Section 409A that may be
associated with any payment made under the terms of this Agreement
or any other arrangement which may be deemed to trigger
Section 409A. Further, the Parties agree that each shall
independently bear responsibility for any and all taxes, penalties
or other tax obligations as may be imposed upon them in their
individual capacity as a matter of law.
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To the extent applicable, Employee
understands and agrees that Employee shall have the responsibility
for, and Employee agrees to pay, any and all appropriate income tax
or other tax obligations for which Employee is individually
responsible and/or related to receipt of any compensation or
benefits provided in this Agreement. Employee agrees to fully
indemnify and hold the Company harmless for any taxes, penalties,
interest, cost or attorneys’ fee assessed against or incurred
by the Company on account of such compensation or benefits having
been provided to Employee or based on any alleged failure to
withhold taxes or satisfy any claimed obligation. Employee
understands and acknowledges that neither the Company, nor any of
its employees, attorneys, or other representatives has provided or
will provide Employee with any legal or financial advice concerning
taxes or any other matter, and that Employee has not relied on any
such advice in deciding whether to enter into this
Agreement.
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16.
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Severance . In the event Employee’s
employment is terminated by the Company without cause (including by
Employee for Good Reason), and subject to the normal terms and
conditions imposed by the Company as set forth herein and in the
attached Separation and Release Agreement, Employee shall be
eligible to receive severance pay based upon Employee’s base
salary at the time of termination for a period determined in
accordance with any guidelines as may be established by the Company
or for a period up to twelve (12) months (whichever is
longer).
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17.
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Severance Payment Terms and
Conditions .
No severance pay shall be paid if Employee voluntarily leaves the
Company’s employ without “Good Reason” (as
defined above) or is terminated for cause. Any severance pay made
payable under this Agreement shall be paid in lieu of, and not in
addition to, any other contractual, notice or statutory pay or
other accrued compensation obligation (excluding accrued wages and
deferred compensation). Additionally, such severance pay is
contingent upon Employee fully complying with the restrictive
covenants contained herein and executing a Separation and Release
Agreement in a form not substantially different from that attached
as Exhibit A. Further, the Company’s obligation to
provide severance hereunder shall be deemed null and void should
Employee fail or refuse to execute and deliver to the Company the
Company’s then-standard Separation and Release Agreement
(without modification) within any time period as may be prescribed
by law or, in absence thereof, twenty-one (21) days after the
Employee’s Effective Termination Date. Conditioned upon the
execution and delivery of the Separation and Release Agreement as
set forth in the prior sentence, severance pay benefits shall be
paid as follows: (i) in one lump sum equivalent to six
(6) months’ base salary on the day following the date
which is six (6) months following Employee’s Effective
Termination Date with any remainder to be paid in bi-weekly
installments equivalent to Employee’s bi-weekly base salary
commencing on the next regularly scheduled payroll date, if both
the severance pay benefit is subject to Section 409A and if
Employee is a “specified employee” under
Section 409A or (ii) for any severance pay benefits not
subject to clause (i), in bi-weekly installments equivalent to
Employee’s bi-weekly base salary commencing upon the next
regularly scheduled payroll date following the earlier to occur of
fifteen (15) days from the Company’s receipt of an
executed Separation and Release Agreement or the expiration of
sixty (60) days after Employee’s Effective Termination
Date and shall be paid on the Company’s regularly scheduled
pay dates; provided, however, that if the before-stated sixty
(60) day period ends in a calendar year following the calendar
year in which the sixty (60) day period commenced, then any
benefits not subject to clause (i) shall only begin on the
next regularly scheduled payroll following the expiration of sixty
(60) days after the Employee’s Effective Termination
Date. Excluding any lump sum payment due as a result of the
application of Section 409A (which shall be paid regardless of
reemployment), all other severance payments provided hereunder
shall terminate upon reemployment.
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18.
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Assignment of Rights
.
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(a)
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Copyrights . Employee agrees that
all works of authorship fixed in any tangible medium of expression
by Employee during the term of this Agreement relating to the
Company’s business (“Works”), either solely or
jointly with others, shall be and remain exclusively the property
of the Company. Each such Work created by Employee is a “work
made for hire” under the copyright law and the Company may
file applications to register copyright in such Works as author and
copyright owner thereof. If, for any reason, a Work created by
Employee is excluded from the definition of a “work made for
hire” under the copyright law, then Employee does hereby
assign, sell, and convey to the Company the entire rights, title,
and interests in and to such Work, including the copyright therein,
to the Company. Employee will execute any documents that the
Company deems necessary in connection with the assignment of such
Work and copyright therein. Employee will take whatever steps and
do whatever acts the Company requests, including, but not limited
to, placement of the Company’s proper copyright notice on
Works created by Employee to secure or aid in securing copyright
protection in such Works and will assist the Company or its
nominees in filing applications to register claims of copyright in
such Works. The Company shall have free and unlimited access at all
times to all Works and all copies thereof and shall have the right
to claim and take possession on demand of such Works and
copies.
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(b)
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Inventions . Employee agrees that
all discoveries, concepts, and ideas, whether patentable or not,
including, but not limited to, apparatus, processes, methods,
compositions of matter, techniques, and formulae, as well as
improvements thereof or know-how related thereto, relating to any
present or prospective product, process, or service of the Company
(“Inventions”) that Employee conceives or makes during
the term of this Agreement relating to the Company’s
business, shall become and remain the exclusive property of the
Company, whether patentable or not, and Employee will, without
royalty or any other consideration:
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(i)
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Inform the Company promptly and
fully of such Inventions by written reports, setting forth in
detail the procedures employed and the results achieved;
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(ii)
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Assign to the Company all of
Employee’s rights, title, and interests in and to such
Inventions, any applications for United States and foreign Letters
Patent, any United States and foreign Letters Patent, and any
renewals thereof granted upon such Inventions;
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(iii)
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Assist the Company or its nominees,
at the expense of the Company, to obtain such United States and
foreign Letters Patent for such Inventions as the Company may
elect; and
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(iv)
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Execute, acknowledge, and deliver
to the Company at the Company’s expense such written
documents and instruments, and do such other acts, such as giving
testimony in support of Employee’s inventorship, as may be
necessary in the opinion of the Company, to obtain and maintain
United States and foreign Letters Patent upon such Inventions and
to vest the entire rights and title thereto in the Company and to
confirm the complete ownership by the Company of such Inventions,
patent applications, and patents.
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19.
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Company Property
. All
records, files, drawings, documents, data in whatever form,
business equipment (including computers, PDAs, cell phones, etc.),
and the like relating to, or provided by, the Company shall be and
remain the sole property of the Company. Upon termination of
employment, Employee shall immediately return to the Company all
such items without retention of any copies and without additional
request by the Company. De minimis items such as pay stubs, 401(k)
plan summaries, employee bulletins, and the like are excluded from
this requirement.
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20.
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Confidential Information
. Employee
acknowledges that the Company and its affiliated entities (herein
collectively referred to as “Companies”) possess
certain trade secrets as well as other confidential and proprietary
information which they have acquired or will acquire at great
effort and expense. Such information may include, without
limitation, confidential information, whether in tangible or
intangible form, regarding the Companies’ products and
services, marketing strategies, business plans, operations, costs,
current or prospective customer information (including customer
identities, contacts, requirements, creditworthiness, preferences,
and like matters), product concepts, designs, prototypes or
specifications, research and development efforts, technical data
and know-how, sales information, including pricing and other terms
and conditions of sale, financial information, internal procedures,
techniques, forecasts, methods, trade information, trade secrets,
software programs, project requirements, inventions, trademarks,
trade names, and similar information regarding the Companies’
business(es) (collectively referred to herein as
“Confidential Information”). Employee further
acknowledges that, as a result of Employee’s employment with
the Company, Employee will have access to, will become acquainted
with, and/or may help develop, such Confidential Information.
Confidential Information shall not include information readily
available in the public so long as such information was not made
available through fault of Employee or wrong doing by any other
individual.
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21.
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Restricted Use of Confidential
Information . Employee agrees that
all Confidential Information is and shall remain the sole and
exclusive property of the Company and/or its affiliated entities.
Except as may be expressly authorized by the Company in writing,
Employee agrees not to disclose, or cause any other person or
entity to disclose, any Confidential Information to any third party
while employed by the Company and for as long thereafter as such
information remains confidential (or as limited by applicable law).
Further, Employee agrees to use such Confidential Information only
in the course of Employee’s duties in furtherance of the
Company’s business and agrees not to make use of any such
Confidential Information for Employee’s own purposes or for
the benefit of any other entity or person.
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22.
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Acknowledged Need for Limited
Restrictive Covenants . Employee acknowledges
that the Companies have spent and will continue to expend
substantial amounts of time, money and effort to develop their
business strategies, Confidential Information, customer identities
and relationships, goodwill and employee relationships, and that
Employee will benefit from these efforts. Further, Employee
acknowledges the inevitable use of, or near-certain influence by
Employee’s knowledge of, the Confidential Information
disclosed to Employee during the course of employment if allowed to
compete against the Company in an unrestricted manner and that such
use would be unfair and extremely detrimental to the Company.
Accordingly, based on these legitimate business reasons, Employee
acknowledges each of the Companies’ need to protect their
legitimate business interests by reasonably restricting
Employee’s ability to compete with the Company on a limited
basis.
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23.
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Non-Solicitation
. During
Employee’s employment and for a period of twenty-four (24)
months thereafter, Employee agrees not to directly or indirectly
engage in the following prohibited conduct:
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(a)
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Solicit, offer products or services
to, or accept orders for, any Competitive Products or otherwise
transact any competitive business with, any customer or entity with
whom Employee had contact or transacted any business on behalf of
the Company (or any Affiliate thereof) during the eighteen
(18) month period preceding Employee’s date of
separation or about whom Employee possessed, or had access to,
confidential and proprietary information;
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(b)
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Attempt to entice or otherwise
cause any third party to withdraw, curtail or cease doing business
with the Company (or any Affiliate thereof), specifically including
customers, vendors, independent contractors and other third party
entities;
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(c)
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Disclose to any person or entity
the identities, contacts or preferences of any customers of the
Company (or any Affiliate thereof), or the identity of any other
persons or entities having business dealings with the Company (or
any Affiliate thereof);
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(d)
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Induce any individual who has been
employed by or had provided services to the Company (or any
Affiliate thereof) within the six (6) month period immediately
preceding the effective date of Employee’s separation to
terminate such relationship with the Company (or any Affiliate
thereof);
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(e)
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Assist, coordinate or otherwise
offer employment to, accept employment inquiries from, or employ
any individual who is or had been employed by the Company (or any
Affiliate thereof) at any time within the six (6) month period
immediately preceding such offer, or inquiry;
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(f)
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Communicate or indicate in any way
to any customer of the Company (or any Affiliate thereof), prior to
formal separation from the Company, any interest, desire, plan, or
decision to separate from the Company; or
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(g)
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Otherwise attempt to directly or
indirectly interfere with the Company’s business, the
business of any of the Companies or their relationship with their
employees, consultants, independent contractors or
customers.
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24.
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Limited Non-Compete
. For the
above-stated reasons, and as a condition of employment to the
fullest extent permitted by law, Employee agrees during the
Relevant Non-Compete Period not to directly or indirectly engage in
the following competitive activities:
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(a)
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Employee shall not have any
ownership interest in, work for, advise, consult, or have any
business connection or business or employment relationship in any
competitive capacity with any Competitor unless Employee provides
written notice to the Company of such relationship prior to
entering into such relationship and, further, provides sufficient
written assurances to the Company’s satisfaction that such
relationship will not, jeopardize the Company’s legitimate
interests or otherwise violate the terms of this
Agreement;
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(b)
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Employee shall not engage in any
research, development, production, sale or distribution of any
Competitive Products, specifically including any products or
services relating to those for which Employee had responsibility
for the eighteen (18) month period preceding Employee’s
date of separation;
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(c)
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Employee shall not market, sell, or
otherwise offer or provide any Competitive Products within
Employee’s Geographic Territory (if applicable) or Assigned
Customer Base, specifically including any products or services
relating to those for which Employee had responsibility for the
eighteen (18) month period preceding Employee’s date of
separation; and
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(d)
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Employee shall not distribute,
market, sell or otherwise offer or provide any Competitive Products
to any customer of the Company with whom Employee had contact or
for which Employee had responsibility at any time during the
eighteen (18) month period preceding Employee’s date of
separation
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25.
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Non-Compete Definitions
. For
purposes of this Agreement, the Parties agree that the following
terms shall apply:
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(a)
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“Affiliate” includes
any parent, subsidiary, joint venture, or other entity controlled,
owned, managed or otherwise associated with the Company;
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(b)
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“Assigned Customer
Base” shall include all accounts or customers formally
assigned to Employee within a given territory or geographical area
or contacted by Employee at any time during the eighteen
(18) month period preceding Employee’s date of
separation;
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(c)
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“Competitive Products”
shall include any product or service that directly or indirectly
competes with, is substantially similar to, or serves as a
reasonable substitute for, any product or service in research,
development or design, or manufactured, produced, sold or
distributed by the Company;
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11
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(d)
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“Competitor” shall
include any person or entity that offers or is actively planning to
offer any Competitive Products and may include (but not be limited
to) any ent
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