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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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-3-
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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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-4-
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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 th
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