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 31 day of July 2008 is entered into by and between
Hill-Rom Holdings, Inc. (“Company”) and Earl DeCarli
(“Employee”).
WHEREAS, the Company and its affiliated entities
are engaged in the healthcare industry throughout the United States
and abroad including, but not limited to, the design, manufacture,
sale, service and rental of hospital beds and stretchers, hospital
furniture, medical-related architectural products, specialty sleep
surfaces (including therapeutic surfaces), air clearing devices,
biomedical and asset management services, as well as other
medical-related accessories, devices, products and
services;
WHEREAS, the Company is willing to employ
Employee in an executive or managerial position and Employee
desires to be employed by the Company in such capacity based upon
the terms and conditions set forth in this Agreement;
WHEREAS, in the course of the employment
contemplated under this Agreement and as a continuation of
Employee’s past employment with the Company , if
applicable, 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 (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 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 as Group Vice President, Care Continuum Services.
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
position. 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 this 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 Conducts, 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 Eleven Thousand Five Hundred
Thirty-Eight dollars and Forty Six Cents ($11,538.46), less usual
and ordinary deductions;
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(b)
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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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(c)
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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 any third party.
Alternatively, should any such agreement exist, Employee warrants
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”). 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 his/her duties and responsibilities
or refused to follow or comply with the lawful direction of the
Board of Directors 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, its officers or its
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 its best
interests or would hold the Company, its officers or directors up
to probable civil or criminal liability, provided that, if
Executive 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 his
reporting relationship to the CEO or his/her successor;
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(b)
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The
failure to elect or reelect Employee as Vice President or other
officer of the Company (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 (other than inadvertent failures that are
cured by the Company promptly upon notice from the
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 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 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 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 accessing 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. 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
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 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 Payments
. 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’ 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 the Employee’s salary commencing
upon 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), begin upon the next regularly scheduled
payroll 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 eighteen (18)
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
distr
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