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 27th day of October, 2008 is entered into by and between
Hillenbrand, Inc. (“Company”) and Jan Santerre
(“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 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 (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 as Vice President, Continuous Improvement. 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 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 Ten Thousand, Three Hundred Eighty-Four Dollars and Sixty-One
Cents ($10,384.61), 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. 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
15 and 16, 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’s duties and
responsibilities or refused to follow or comply with the lawful
direction of the Company or the terms and conditions of this
Agreement, provided 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 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. 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 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
such disabilities as well as the Company’s obligation to
provide reasonable accommodation thereunder.
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12.
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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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13.
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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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14.
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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. 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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15.
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Severance . In the event Employee’s
employment is terminated by the Company without cause, 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 six
(6) months (whichever is longer).
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16.
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Severance Payment Terms and
Conditions .
No severance pay shall be paid if Employee voluntarily leaves the
Company’s employ 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
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Separation and Release Agreement
(without modification) within any time period as may be prescribed
by law or, in the 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 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), 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 calendar 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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17.
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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.
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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18.
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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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19.
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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 to the public through so long as such information was not
made available through fault of Employee or wrong doing by any
other individual.
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20.
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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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21.
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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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22.
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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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23.
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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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24.
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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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(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 entity identified on the Company’s Illustrative
Competitor List, attached hereto as Exhibit B, which shall be
amended from time to time to reflect changes in the Company’s
business and competitive environment (updated competitor lists will
be provided to Employee upon reasonable request);
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(e)
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“Geographic Territory”
shall include any territory formally assigned to Employee as well
as all territories in which Employee has provided any services,
sold any products or otherwise had responsibility at any time
during the eighteen (18) month period preceding
Employee’s date of separation;
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(f)
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“Relevant Non-Compete
Period” shall include the period of Employee’s
employment with the Company as well as a period of eighteen
(18) months after such employment is terminated, regardless of
the reason for such termination provided, however, that this period
shall be reduced to the greater of (i) nine (9) months or
(ii) the total length of Employee’s employment with the
Company, including employment with any parent, subsidiary or
affiliated entity, if such employment is less than twenty-four (24)
months;
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(g)
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“Directly or
indirectly” shall be construed such that the foregoing
restrictions shall apply equally
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