BANDAG, INCORPORATED
SEVERANCE AGREEMENT FOR FREDERICO U. KOPITTKE
THIS SEVERANCE AGREEMENT (“Agreement”) is
entered into as of the 14th day of December, 2006 by and between
Bandag, Incorporated, an Iowa corporation, including any successor
or successors thereto (“Company”), and Frederico U.
Kopittke (“Employee”).
RECITALS
WHEREAS , Employee is and has been an at-will employee of
Company, and possesses an extensive knowledge of the business and
affairs of Company, its proprietary information, trade secrets,
policies, methods, personnel, and problems;
WHEREAS , Employee desires to continue to be employed
at-will by Company, and acknowledges that this Agreement provides
for severance payments to which he is not otherwise entitled by any
contract or any other legal obligation;
WHEREAS, the parties agree and acknowledge that this
Agreement is not intended to constitute an employment contract;
does not create any employment rights other than those expressly
set forth herein; does not alter or modify Employee’s status
as an “at-will” employee of Company or the terms and
conditions of his employment except as expressly set forth herein,
and does not create any rights to continued employment or to
termination only “for cause”; but rather, is intended
solely to provide for the availability of severance payments to
Employee under the terms and conditions set forth
herein;
NOW, THEREFORE , in consideration of the covenants and
agreements of the parties herein contained, the sufficiency of
which is acknowledged by each party, the parties hereto agree as
follows:
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1.
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Employee
Covenants. If Employee
becomes entitled to receive severance payments pursuant to
paragraph 3 hereof, Employee covenants and agrees to be bound by
the terms of the non-competition provisions set forth in
subparagraph b. ii. of paragraph 2, below. Whether or not
Employee becomes entitled to receive severance benefits pursuant to
paragraph 3 hereof, Employee covenants and agrees to be bound by
the terms of the additional provisions set forth in paragraph 2,
below.
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2.
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Competitive
Activity; Confidentiality; Nonsolicitation.
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a.
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Acknowledgements and Agreements
. Employee hereby acknowledges and
agrees that in the performance of Employee’s services for the
Company, Employee has been and will be brought into frequent
contact with existing and potential customers of the Company
throughout the world. Employee also agrees that trade secrets and
confidential information of the Company, more fully described in
subparagraph 2. e. i., gained by Employee during Employee’s
association with the Company, have been developed by the Company
through substantial expenditures of time, effort and money and
constitute valuable and unique property of the Company. Employee
further understands and agrees that the foregoing makes it
necessary for the protection of the Company’s Business that
Employee not compete with the Company during the term of this
Agreement and not compete with the Company for a reasonable period
thereafter, as further provided in the following
subparagraphs.
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i.
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Covenants
During Employment .
During the period that Employee is employed by the Company and this
Agreement is in effect, Employee will not compete with the Company
anywhere in the world. In accordance with this restriction, but
without limiting its terms, during such period, Employee will
not:
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(1)
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enter into or
engage in any business which competes with the Company’s
Business;
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(2)
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solicit
customers, business, patronage or orders for, or sell, any products
or services in competition with, or for any business that competes
with, the Company’s Business;
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(3)
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divert, entice
or otherwise take away any customers, business, patronage or orders
of the Company or attempt to do so; or
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(4)
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promote or
assist, financially or otherwise, any person, firm, association,
partnership, corporation or other entity engaged in any business
which competes with the Company’s Business.
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ii.
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Covenants
Following Termination .
In consideration of the severance payments provided for herein
(subject to paragraph 1 hereof), for a period of one (1) year
following the termination of Employee’s performance of
services for the Company, Employee will not:
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(1)
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enter into or
engage in any business which competes with the Company’s
Business within the Restricted Territory;
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(2)
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solicit
customers, business, patronage or orders for, or sell, any products
and services in competition with, or for any business, wherever
located, that competes with, the Company’s Business within
the Restricted Territory;
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(3)
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divert, entice
or otherwise take away any customers, business, patronage or orders
of the Company within the Restricted Territory, or attempt to do
so; or
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(4)
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promote or
assist, financially or otherwise, any person, firm, association,
partnership, corporation or other entity engaged in any business
which competes with the Company’s Business within the
Restricted Territory.
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(5)
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directly or
indirectly attempt to disrupt, damage, impair or interfere with the
Company’s Business by raiding any of the Company’s
employees or soliciting any of them to resign from their employment
by the Company, or by disrupting the relationship between the
Company and any of its consultants, agents, representatives or
vendors. Employee acknowledges that this covenant is necessary to
enable the Company to maintain a stable workforce and remain in
business.
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iii.
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Indirect
Competition . For the
purposes of subparagraphs 2. b. i. and ii. inclusive, but without
limitation thereof, Employee will be in violation thereof if
Employee engages in any or all of the activities set forth therein
directly as an individual on Employee’s own account, or
indirectly as a partner, joint venturer, employee, agent,
salesperson, consultant, officer and/or director of any firm,
association, partnership, corporation or other entity, or as a
stockholder of any corporation in which Employee or
Employee’s spouse, child or parent owns, directly or
indirectly, individually or in the aggregate, more than five
percent (5%) of the outstanding stock.
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iv.
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If it shall be
judicially determined that Employee has violated this subparagraph
2. b., then the period applicable to each obligation that Employee
shall have been determined to have violated shall automatically be
extended by a period of time equal in length to the period during
which such violation(s) occurred.
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c.
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The
Company . For purposes of
this paragraph 2, the Company shall include any and all direct and
indirect subsidiaries of the Company.
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i.
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Employee will
keep in strict confidence, and will not, directly or indirectly, at
any time, disclose, furnish, disseminate, make available or, except
in the course of Employee’s performance of services for the
Company, use any trade secrets or confidential business and
technical information of the Company or its customers or vendors,
without limitation as to when or how Employee may have acquired
such information. Such confidential information shall include,
without limitation, the Company’s unique selling,
manufacturing and servicing methods and business techniques,
training, service and business manuals, promotional materials,
training courses and other training and instructional materials,
vendor and product information, customer and prospective customer
lists, other customer and prospective customer information and
other business information. Employee specifically acknowledges that
all such confidential information, whether reduced to writing,
maintained on any form of electronic media, or maintained in the
mind or memory of Employee and whether compiled by the Company,
and/or Employee, derives independent economic value from not being
readily known to or ascertainable by proper means by others who can
obtain economic value from its disclosure or use, that reasonable
efforts have been made by the Company to maintain the secrecy of
such information, that such information is the sole property of the
Company and that any retention and use of such information by
Employee during the term of this Agreement (except in the course of
performing services for the Company) or after the termination of
this Agreement shall constitute a misappropriation of the
Company’s trade secrets.
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ii.
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Employee agrees
that upon termination of Employee’s performance of services,
for any reason, Employee shall return to the Company, in good
condition, all property of the Company, including without
limitation, the originals and all copies of any materials which
contain, reflect, summarize, describe, analyze or refer or relate
to any items of information listed in
subparagraph 2. d. i. of this Agreement. In the
event that such items are not so returned, the Company will have
the right to charge Employee for all reasonable damages, costs,
attorneys’ fees and other expenses incurred in searching for,
taking, removing and/or recovering such property.
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e.
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Discoveries
and Inventions; Work Made for Hire .
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i.
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Employee agrees
that upon conception and/or development of any idea, discovery,
invention, improvement, software, writing or other material or
design that: (A) relates to the business of the Company, or (B)
relates to the Company’s actual or demonstrably anticipated
research or development, or (C) results from any services performed
by Employee for the Company, Employee will assign to the Company
the entire right, title and interest in and to any such idea,
discovery, invention, improvement, software, writing or other
material or design. Employee has no obligation to assign any idea,
discovery, invention, improvement, software, writing or other
material or design that Employee conceives and/or develops entirely
on Employee’s own time without using the Company’s
equipment, supplies, facilities, or trade secret information unless
the idea, discovery, invention, improvement, software, writing or
other material or design either: (x) relates to the business of the
Company, or (y) relates to the Company’s actual or
demonstrably anticipated research or development, or (z) results
from any work performed by Employee for the Company. Employee
agrees that any idea, discovery, invention, improvement, software,
writing or other material or design that relates to the business of
the Company or relates to the Company’s actual or
demonstrably anticipated research or development which is conceived
or suggested by Employee, either solely or jointly with others,
within one (1) year following termination of this Agreement or any
successor
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