PROPRIETARY/NON-COMPETE
AGREEMENT
I. Introduction
This Agreement is entered into and is effective this 15
th day of January 2007, by and between ALAMO GROUP INC.
("ALAMO"), a Delaware corporation, and Daniel E. Malone ,
(EMPLOYEE).
WHEREAS, a major portion of ALAMO and its Affiliates (separately
and collectively referred to as "COMPANY") business consists
principally of the design, development, engineering, manufacture,
assembly, promotion, advertising, marketing, merchandising, sales
and distribution of tractor and truck mounted mowing and other
vegetation maintenance equipment, excavators, street sweepers,
vacuum trucks, agricultural implements, front-end loaders, backhoe
and related after market parts (the "Business"); and
WHEREAS, the COMPANY agrees to provide to EMPLOYEE, special
training and instruction relating to COMPANY business methods and
access to confidential proprietary information and materials
belonging to COMPANY, its affiliates as described in more detail in
Paragraph III herein;
WHEREAS, in consideration of EMPLOYEE'S employment by COMPANY, the
compensation to be paid EMPLOYEE by COMPANY and the proprietary
information and special training to be provided to EMPLOYEE set
forth in this Agreement, the EMLOYEE provides the consideration or
return promise to honor the Company's restriction against
competition (as more fully described in Paragraph V herein) during
the period of employment, this Agreement being a condition thereof
and ancillary thereto and not purporting to set forth the terms of
such employment, except for those specifically referred to herein,
it is agreed as follow:
II. Employment
COMPANY hereby agrees to employ, or if EMPLOYEE is already employed
by COMPANY, to continue to employ EMPLOYEE for the time, at the
salary or wage, from time to time agreed upon by COMPANY and
EMPLOYEE and EMPLOYEE agrees to perform the duties from time to
time designated by COMPANY. EMPLOYEE is an at-will employee
of COMPANY. Nothing contained in this Agreement is to be
construed as altering EMPLOYEE's status as an at-will
employee. It is understood and agreed by EMPLOYEE that
COMPANY shall have the right to terminate EMPLOYEE'S services at
any time, with or without cause, and without remuneration other
than that which has accrued at the time of termination.
III. Proprietary
Information
-
EMPLOYEE agrees that he or she will not at any time either while
employed by ALAMO, it affiliates, divisions, or subsidiaries,
or afterwards, make any independent use of, or disclose to any
other person or organization, except as authorized in writing by
ALAMO, any of the proprietary information of ALAMO, its affiliates,
divisions, or subsidiaries.
-
Proprietary information shall include but not be limited to:
any information made available to EMPLOYEE during the course of
EMPLOYEE's employment relating to inventions, ideas, technical
data, product specifications, services, processes, procedures,
machinery, apparatus, prices, discounts, manufacturing costs,
computer information systems (including software which shall
encompass, for example, source code, object code, documentation,
diagrams, and flow charts), unpublished works of any nature whether
or not copyrightable, future plans, policies, and all other
information and knowledge used in management, engineering,
manufacturing, marketing, purchasing, finance, operations, or
otherwise, concerning the business of COMPANY, which is of a secret
or confidential nature (whether or not acquired, originated or
developed in whole or part by EMPLOYEE).
C.
On termination of such employment, EMPLOYEE shall
promptly deliver to COMPANY all drawings, blueprints, or manuals,
letters, notes, notebooks, reports and copies thereof, customer
information, electronically stored data, and all other proprietary
information (collectively referred to as "documents") relating in
any way to COMPANY business or customers in the possession or under
the control of EMPLOYEE. All such documents made or produced
by EMPLOYEE or those under EMPLOYEE'S control shall remain
the sole property of COMPANY. All such documents produced by
EMPLOYEE will be works for hire produced for COMPANY and COMPANY
will own all rights in such documents, including copyright,
patents, etc.
IV. Conflict of
Interest
A.
EMPLOYEE agrees that during the term of his/her
employment with COMPANY, he/she will not engage in any business
interest or activities which, conflict or compete with the business
or interests of COMPANY. EMPLOYEE agrees that during the term
of his/her employment with the COMPANY, he/she will promptly report
to his/her supervisor any current and future outside business
activity.
V. Competition
-
In exchange for the consideration exchanged between the COMPANY and
EMPLOYEE as referenced in the Introduction of this Agreement, the
EMPLOYEE agrees that when and if his/her employment by the COMPANY
is terminated for any reason whatsoever, he or she shall not for a
period of twelve (12) months thereafter, (1) engage in any
business competitive with COMPANY, (2) enter the employ of any
other persons or other entity engaged in activities relating to the
sale or manufacture of heavy duty mowing and ditching equipment and
spare parts, or (3) accept or seek any interest directly in or
with, any other persons or other entities engaged in the
Business.
-
EMPLOYEE recognizes that in the highly competitive industry in
which COMPANY is engaged, personal contact is of primary importance
in securing new customers and in retaining the accounts of present
customers. Accordingly, and in exchange for the consideration
as referenced in the Introduction of this Agreement between the
EMPLOYEE and the COMPANY, EMPLOYEE agrees that at no time during
the term of his/her employment, or for a period of twelve (12)
months immediately following the termination of his/her employment,
will he or she for himself or herself, or on behalf of any
other persons or other entity, directly or indirectly, solicit the
sale or purchase of products or services related to the
Business
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