EMPLOYMENT AGREEMENT
Exhibit 10.2
EMPLOYMENT AGREEMENT
This agreement (“Agreement”) is made as of the 31st day of May, 2011 between Tufco
Technologies, Inc., a Delaware corporation (“Tufco”), and Xxxxx X. Xxxxxxxx (the “Employee”).
RECITALS
Tufco desires to employ the Employee and the Employee desires to become an employee of Tufco,
upon the terms and conditions hereinafter set forth.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the
parties hereto, each intending to be legally bound hereby, agree as follows:
| 1. | Employment |
During the term of employment under this Agreement (the “Employment Term”), the Employee shall
perform the duties of President and Chief Executive Officer of Tufco and shall perform such duties
and responsibilities as may be assigned to him from time to time by the Board of Directors of Tufco
(the “Board”) and the Chairman of the Board.
| 2. | Performance |
During the Employment Term, the Employee shall devote his entire business efforts to the
performance of his duties hereunder.
| 3. | Term |
Unless otherwise terminated in accordance with Sections 5 or 6, the Employment Term shall be
for an initial term of one year commencing on September 19, 2011, and continuing thereafter for
successive one-year renewal terms.
| 4. | Compensation for Employment |
(a) The basic annual compensation of the Employee for his employment services to Tufco and to
all of its affiliated companies during the Employment Term shall be $200,000 (the “Salary”), which
Tufco shall pay to the Employee in accordance with its normal payroll policy. Tufco may adjust the
Salary upward on an annual basis as the Board may determine, but the Salary shall not be decreased.
(b) During the Employment Term, Tufco shall pay the Employee a bonus in accordance with this
paragraph (b). For each fiscal year during the Employment Term, the Board, in its sole discretion,
shall establish a target for pre-tax income in accordance with generally accepted accounting
principles consistently applied (“GAAP”) and the Employee’s bonus will vary as a percentage of
Salary in relation to the percentage achievement of that target as follows:
| Percentage of Target Attained | Percentage of Salary Earned as Bonus | |||
Below 80% |
0.0 | % | ||
80% |
20 | % | ||
90% |
27.5 | % | ||
100% |
35 | % | ||
110% |
42.5 | % | ||
120% and above |
50 | % | ||
For a percentage of budget achievement between the benchmarks, the percentage of Salary shall be
linearly interpolated, provided that no bonus is paid for achievement less than 80% of target and
the maximum bonus shall be 50% of Salary in any event. In the case of partial fiscal year, Tufco
shall adjust the bonus to correspond to Tufco’s target and the Salary for the portion of the
applicable fiscal year that shall be included in the Employment Term. Notwithstanding the
foregoing, the Employee’s initial bonus period (the “Initial Bonus Period”) shall be the period
starting with October 1, 2011 and ending September 30, 2012, and Tufco shall use its target for
that period to determine the Employee’s eligibility for a bonus, and then apply the applicable
bonus percentage to that portion of the Employee’s annual Salary that relates to the Initial Bonus
Period. Any bonus earned by the Employee with respect to a bonus period shall be paid to the
Employee no later than March 15 of the year following the year in which the bonus period ended.
(c) During the Employment Term, Tufco shall reimburse the Employee for any reasonable business
expenses incurred on Tufco’s behalf in connection with the performance of his services during the
Employment Term. Such reimbursement shall be made no later than the end of the year following the
year in which the underlying business expense was incurred. In addition, no reimbursement shall be
subject to liquidation or exchange for another benefit and the amount available for reimbursement
during any calendar year shall not affect the amount available for reimbursement in a subsequent
calendar year.
(d) Stock Options. Options may be granted periodically to selected Tufco executives
for superior performance at the sole discretion of the Board, subject to options availability
determined by and at the sole discretion of the Compensation Committee of the Board. The timing,
the exercise price, as well as the vesting period and the number of options (if any) will be
determined annually by the Compensation Committee of the Board.
5. Termination Without Compensation
(a) Non-Renewal of Term. The Employment Term may be terminated by Employee by giving
written notice of the intention to terminate the Employment Term at least 120 days prior to the
proposed termination date.
(b) Partial or Total Disability. If the Employee is unable, with or without
reasonable accommodation, to perform his duties and responsibilities hereunder to the full extent
required hereunder by reason of illness, injury or incapacity for six months (during which time he
shall continue to be compensated hereunder), Tufco may terminate the Employee Term, and Tufco shall
not have any further liability or obligation to the Employee hereunder except for any unpaid
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Salary and Fringe Benefits accrued to the date of termination. In the event of any dispute
under this Section 6(b), the Employee shall submit to a physical examination by a licensed
physician mutually satisfactory to Tufco and the Employee, the cost of such examination to be paid
by Tufco, and the determination of such physician shall be determinative. If, after termination
due to disability as provided herein, the Employee obtains, at his sole expense, medical
certification from a licensed physician reasonably satisfactory to Tufco that such disability has
ended, Tufco shall offer to employ the Employee pursuant to the terms of this Agreement for the
remainder of the initial term or any renewal term in effect at the time of termination, except that
Tufco shall not be required to reemploy the Employee at the same position if Tufco shall have
elected another person to such position during the period.
(c) Death. If the Employee dies, this Agreement (except for the provisions of
Sections 6, 10 and 11 hereof) shall terminate and therefore Tufco shall not have any further
liability or obligation to the Employee, his executors, administrators, heirs, assigns or any other
person claiming under or through him except for unpaid Salary and Fringe Benefits accrued to the
date of his death.
(d) Cause. Tufco may terminate the Employment Term for “cause” by giving the Employee
30 days’ notice of the termination date, and thereafter Tufco shall not have any further liability
or obligation to the Employee. For purposes of this Agreement, “Cause” shall mean the failure of
the Employee to observe or perform (other than by reason of illness, injury or incapacity) any of
the material terms or provisions of this Agreement, dishonesty, willful misconduct, material
neglect of Tufco’s business, or conviction of a crime or offense involving circumstances
substantially related to the circumstances of Employee’s employment.
6. Termination With Compensation
(a) Non-Renewal of Term. The Employment Term may be terminated by either party hereto
as of the end of the initial term or any renewal term then in effect by giving written notice of
the intention to terminate the Employment Term at least 90 days prior to the proposed termination
date. If Tufco terminated the Employment Term under such circumstances, Tufco shall provide the
Employee with the Termination Compensation specified in Section 6(c).
(b) Without Cause. Tufco shall have the right to terminate the employment Term
without Cause at any time by giving the Employee 30 days’ notice of the termination date. Under
such circumstances, Tufco shall provide the Employee with the Termination Compensation specified in
Section 6(c).
(c) Termination Compensation. The “Termination Compensation” shall consist of the
following: In the case of a termination by Tufco under Sections 6(a) or 6(b), payment of the
Employee’s Salary under Section 4(a), at the level in effect at the date of termination, for one
(1) year, payable in accordance with the normal payroll policy of Tufco. The employee shall not be
entitled to any Termination Compensation under this Section 6 unless the Employee executes and
delivers to Tufco a release in a form satisfactory to Tufco in its sole discretion by which the
Employee releases Tufco and its past, present, and future direct and indirect subsidiaries,
parents, shareholders, affiliates (including but not limited to, Tufco Technologies, Inc, Overseas
Equity Investors Ltd, Bradford Ventures Ltd, Bradford Venture Partners, L.P., Bradford Associates,
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Bradford Equities Management, LLC, and all affiliates and related parties of the foregoing),
all of the foregoing entities’ successors and/or assigns, all of the foregoing entities’ officers,
directors, owners, partners, employees, agents, representatives, insurers, benefit plans (including
such plans’ sponsors, administrators and fiduciaries), and the like, and any other person/entity
claimed to be jointly and or severally liable with any of the foregoing persons/entities with
respect claims or through which Tufco has acted, directly or indirectly in its dealings with the
Employee, from any obligations and liabilities of any type whatsoever (except for Tufco’s
obligation to provide the Salary specified in this Section 6). The Employee must execute and
deliver such release to Tufco within sixty (60) days after his termination of employment and such
release must become effective (with all revocation periods having expired) during such sixty (60)
day period; provided, that if such sixty (60) day period begins in one taxable year and ends in a
subsequent taxable year, the payment of the Termination Compensation shall not commence until such
subsequent taxable year. The parties hereto acknowledge that the Salary to be provided under this
Section 6 is to be provided in consideration for the above-specified release.
(d) Exclusivity. Upon any termination by Tufco under Section 6(a) or Section 6(b),
Tufco shall not have any obligation to the Employee, his executors, administrators, heirs, assigns
or any other person claiming under or through his other than to provide the Termination
Compensation under the terms and conditions of section 6(c). Upon any termination by the Employee
under Section 6(a), Tufco shall not have further liability or obligation to the Employee, his
executors, administers, heirs, assigns or any other person claiming under or through him except to
provide to the Employee any unpaid Salary and Fringe Benefits that shall have accrued through the
date of termination.
7. Agreement Not to Compete
(a) During the Non-Competition Period (defined below), the Employee shall not, within the
Restricted Area (defined below), directly or indirectly, in any capacity, render his services,
engage or have a financial interest in, any business that is competitive with any of those business
activities in which Tufco or any of its subsidiaries or affiliates shall have been engaged during
his employment by it, including, but not limited to, the manufacturing, packaging and distribution
of wet and dry wipes, flexographic wide-web printing, and slitting and rewinding, nor shall the
Employee assist any person or entity that is engaged in such business, including by making Tufco
Information (defined below) available to any such person or entity. In addition, during the
Non-Competition Period, the Employee shall not directly or indirectly solicit or otherwise
encourage any of the employees of any Tufco Party (defined below) to terminate their employment
with the applicable Tufco Party. As used herein, the “Restricted Area” means the United States of
America. The “Non-Competition Period” means the period equal to the sum of (A) the period of the
Employee’s employment hereunder, (B) any period during which the Employee is paid any Termination
Compensation (defined above) and (C) an additional one year after the end of the later of the
period in clauses (A) and (B).
(b) The terms of this Section 5 shall apply to Employee and any person, partnership,
association, corporation or other entity (collectively, a “Person”) controlled by the Employee,
including any relative of the Employee, to the same extent as if they were parties hereto, and the
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Employee shall take whatever actions may be necessary to cause any such persons or entities to
adhere to the terms of this Section 5.
(c) In the event of the voluntary or involuntary bankruptcy of Tufco or the filing of a plan
for reorganization by Tufco resulting in the termination of the contract of employment or a
situation giving rise to circumstances by which Tufco fails to make any payment of compensation set
forth in this Agreement, Employee shall be relieved of all obligations under this Agreement
relating to covenants against competition as set forth in this Section 7.
(d) Nothing herein shall be construed to limit or conflict with the restrictions on
competition contained within the “Agreement on Trade Secrets, Confidentiality and Business Ideas”
executed by Employee on February 11, 2011 and attached hereto as Exhibit A.
8. Inventions. Designs and Product Developments
(a) All inventions, innovations, designs, ideas and product developments (collectively, the
“Developments”), developed or conceived by the Employee, solely or jointly with others, whether or
not patentable or copyrightable, at any time during the Employment Term and that relate to the
actual or planned business activities of Tufco, or any of its subsidiaries or affiliates (any such
party is referred to herein as a “Tufco Party”) and all of the Employee’s right, title and interest
therein, shall be the exclusive property of the applicable Tufco Party. The Employee hereby
assigns, transfers and conveys to any applicable Tufco Party all of his right, title and interest
in and to any and all such Developments. As requested from time to time by the Board, the Employee
shall disclose fully, as soon as practicable and in writing, all Developments to the Board. At any
time and from time to time, upon request of any of the Board, the Employee shall execute and
deliver to Tufco any and all instruments, documents and papers, give evidence and do any and all
other acts that, in the opinion of counsel for Tufco, are or may be necessary or desirable to
document such transfer or to enable any applicable Tufco Party to file and prosecute applications
for and to acquire, maintain and enforce any and all patents, trademark registrations or copyrights
under United States or foreign law with respect to any such Developments or to obtain any
extension, validation, reissue, continuance or renewal of any such patent, trademark, or copyright.
The applicable Tufco Party will be responsible for the preparation of any such instruments,
documents and paper and for the prosecution of any such proceedings and will reimburse the Employee
for all reasonable expenses incurred by him in compliance with the provisions of this Section.
(b) Nothing herein shall be construed to limit or conflict with the provisions pertaining to
“Business Ideas” within the “Agreement on Trade Secrets, Confidentiality, and Business Ideas”
executed by Employee on February 11, 2011 and attached hereto to as Exhibit A.
9. Confidential Information
(a) The Employee has had and will have possession of or access to confidential information
relating to the business of one or more Tufco Parties, including writings, equipment, processes,
drawings, reports, manuals, invention records, financial information, business plans, customer
lists, the identity of or other facts relating to prospective customers, inventory lists,
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arrangements with suppliers and customers, computer programs, or other material embodying
trade secrets, customer or product information or technical or business information of certain
Tufco Parties. All such information, other than any information that is in the public domain
through no act or omission of the Employee or which he is authorized to disclose, is referred to
collectively as the “Tufco Information”. During and after the Employment Term, the Employee shall
not (I) use or exploit in any manner the Tufco Information for himself or any Person other than a
Tufco Party (II) remove any Tufco Information, or any reproduction thereof, from the possession or
control of any Tufco Party or (III) treat Tufco information other than in a confidential manner.
(b) All Tufco Information developed, created or maintained by the Employee, alone or with
others while employed by Tufco, and all Tufco Information maintained by the Employee thereafter,
shall remain at all times the exclusive property of the applicable Tufco Party. The Employee shall
return to Tufco all Tufco Information, and reproductions thereof, whether prepared by him or
others, that are in his possession immediately upon request and in any event upon the completion of
his employment by Tufco.
(c) Nothing herein shall be construed to limit or conflict with the provisions pertaining to
“Confidential Information” within the “Agreement on Trade Secrets, Confidentiality, and Business
Ideas” executed by Employee on February 11, 2011 and attached hereto to as Exhibit A.
10. Remedies
The Employee expressly acknowledges that the remedy at law for any breach of Section 7, 8 or 9
will be inadequate and that upon any such breach or threatened breach, Tufco (or the applicable
Tufco Party) shall be entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, in equity or otherwise, and to enforce the specific performance of the Employee’s
obligations under these provisions without the necessity of proving the actual damage or the
inadequacy of a legal remedy. Subject to the remainder of this Section 10, the rights conferred
upon Tufco (and any Tufco Party) by the preceding sentence shall not be exclusive of, but shall be
in addition to, any other rights or remedies which Tufco may have at law, in equity or otherwise.
| 11. | Survival |
Notwithstanding the termination of the Employment Term pursuant to Section 5 or 6, the
obligations of the Employee under Sections 7, 8 and 9 hereof shall survive and remain in full force
and effect and Tufco shall be entitled to relief against the Employee pursuant to the provisions of
Section 10 hereof.
12. General
(a) Governing Law. The terms of this Agreement shall be governed by the laws of the
State of Wisconsin.
(b) Section 409A Compliance.
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(i) It is intended that any income to the Employee provided by Tufco (including, without
limitation, any equity awards and other compensation) will not be subject to interest and
additional tax under Section 409A of the Internal Revenue Code of 1986, as amended (“Code Section
409A”). This Agreement will be interpreted and construed in favor of its meeting any applicable
requirements of Code Section 409A. Tufco, in its reasonable discretion, may amend (including
retroactively) this Agreement to comply with Code Section 409A. The preceding provisions shall not
be construed as a guarantee by Tufco of any particular tax effect for any income to the Employee
provided by Tufco (including, without limitation, any equity awards and other compensation). Tufco
will have no responsibility for the payment of any applicable taxes on income to Employee
(including, without limitation, any equity awards and other compensation). For purposes of Code
Section 409A, a right to a series of installment payments under this Agreement shall be treated as
a right to a series of separate payments.
(ii) Notwithstanding anything herein to the contrary, if the Employee separates from service
while the Employee is a “specified employee” (as defined under Code Section 409A), any payment of
any amount payable on account of “separation from service” which is “deferred compensation” (each,
as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions
in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)), that is scheduled to be paid
within six (6) months after such separation from service shall be paid on the six (6) month
anniversary of such separation from service or, if earlier, upon the Employee’s death.
(c) Interpretation. Unless the context of this Agreement clearly requires otherwise,
(I) references to the plural include the singular, and to the singular include the plural, (II)
“or” has the inclusive meaning frequently identified with the phrase “and/or” and (III) “including”
has the inclusive meaning frequently identified with the phrase “but not limited to”. The section
and other headings contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation thereof in any respect.
Section, subsection, schedule and exhibit references are to this Agreement unless otherwise
specified. Each accounting term used herein that is not specifically defined herein shall have the
meaning given to it under GAAP.
(d) Binding Effect. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit and be enforceable by the respective heirs, representatives,
successors (including any successor as a result of a merger or similar reorganization) and assigns
of the parties hereto, except that the duties and responsibilities of the Employee hereunder are of
a personal nature and shall not be assignable in whole or in part by the Employee. Any Tufco Party
other than Tufco is a third party beneficiary of this Agreement and may enforce the provisions of
this Agreement that pertain to such Tufco Party, including Sections 7, 8 and 9, to the same extent
as if a party hereto.
(e) Notices. All notices required to be given under this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or when mailed by
registered or certified mail, postage prepaid, return receipt requested, or when sent by Federal
Express or other overnight delivery service, addressed as follows:
| TO EMPLOYEE: | TO: | |||
| 0000 Xxxxxxx Xx. | Tufco Technologies, Inc. | |||
| Xxxxx Xxx, XX 00000 | 0000 Xxxxx Xxxxx Xxxx Xxxxx Xxx, XX 00000-0000 Attn: Xx. Xxxxxx X. Xxxxx, Chairman |
(f) Entire Agreement; Termination of Prior Agreement Modification. This Agreement
constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements with respect to the subject matter hereof including, but not
limited to, the Employment Agreement by and between the Employee and Tufco L.P. dated October 11,
2010. This Agreement may not be modified or amended in any way except in writing by the parties
hereto.
(g) Duration. Notwithstanding the termination of the Employment Term and of the
Employee relationship with Tufco, this Agreement shall continue to bind the parties for so long as
any obligations remain under this Agreement, and in particular, the Employee shall continue to be
bound by the terms of Sections 7, 8 and 9.
(h) Waiver. No waiver of any breach of this Agreement shall be construed to be a
waiver as to succeeding breaches.
(i) Severability. If any provision of this Agreement or application thereof to anyone
under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such
validity or unenforceability shall not affect any other provisions or applications of this
Agreement which can be given effect without the invalid or unenforceable provision or application
and shall not invalidate or render unenforceable such provision in any other jurisdiction.
(j) Counterparts. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures hereto were upon the same
instrument.
[Signature Page Follows.]
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IN WITNESS WHEREOF, the parties, hereto intending to be legally bound, have hereunto duly
executed this Agreement the day and year first written above.
| TUFCO TECHNOLOGIES, INC. | EMPLOYEE | |||
By:
|
/s/ Xxxxxx X. Xxxxx | /s/ Xxxxx X. Xxxxxxxx | ||
| Xxxxxx X. Xxxxx Chairman of the Board |
Xxxxx X. Xxxxxxxx | |||
| May 31, 2011 | May 31, 2011 | |||
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Exhibit A
Agreement on Trade Secrets, Confidentiality and Business Ideas
THIS AGREEMENT is made and entered into by and between the undersigned employee (“Employee”) and
Tufco Technologies, Inc. (the “Company”).
In consideration of the continued employment of Employee and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Employee and the Company hereby agree
as follows:
1. Confidentiality Obligations. During the term of Employee’s employment, Employee will not
directly or indirectly use or disclose any Confidential Information or Trade Secret except in the
interest and for the benefit of the Company. After the end of Employee’s employment with the
Company, for whatever reason, Employee will not directly or indirectly use or disclose any Trade
Secret. For a period of 24 months following the end of Employee’s employment with the Company, for
whatever reason, Employee will not directly or indirectly use or disclose any Confidential
Information. Employee further agrees not to use or disclose at any time information received by the
Company from others except in accordance with the Company’s contractual or other legal obligations
respecting third parties; the Company’s customers are third party beneficiaries of this promise.
Nothing in this Agreement shall prevent Employee, after the end of employment with the Company,
from using general skills and knowledge gained while employed by the Company.
2. Restrictions on Competition.
2.1 During Employment. During the term of his/her employment with the Company, Employee
will not directly or indirectly compete against the Company, or directly or indirectly divert or
attempt to divert Customers’ or potential customers’ business from the Company anywhere the Company
does or is taking steps to do business.
2.2
Following Employment. For 18 months following the end of his/her employment with the
Company, due to cause or voluntary termination, Employee agrees not to directly or indirectly
attempt to sell to any Restricted Customer any goods or services of the type or substantially
similar to the type sold by the Company during the 18 months prior to termination of his/her
employment for any Restricted Customer physically located within the United States.
3. Definitions.
3.1
Trade Secret. The term “Trade Secret” has that meaning set forth under applicable law.
The term includes, but is not limited to, all computer source code created by or for the Company.
3.2 Confidential Information. The term “Confidential Information” means all non-Trade
Secret information of, about or related to the Company or provided to the Company by its customers
that is not known generally to the public or the Company’s competitors. Examples of Confidential
Information include the following: information about products under development, research,
development or business plans, production processes, manufacturing techniques, equipment design and
layout, test results, financial information, customer lists, information about orders from and
transactions with customers, sales and marketing strategies and plans, pricing strategies,
information relating to sources of materials and production costs, personnel information and
business records; and information which is marked or otherwise designated as confidential or
proprietary by the Company.
3.3 Exclusions. Notwithstanding the foregoing, the terms “Trade Secret” and “Confidential
Information” do not include, and the obligations set forth in this Agreement do not apply to, any
information which: (i) can be demonstrated by Employee to have been known by him/her prior to
his/her employment by the Company; (ii) is or becomes generally available to the public through no
act or omission of Employee; (iii) is obtained by Employee in good faith from a third party who
discloses such information to Employee on a non-confidential basis without violating any obligation
of confidentiality or secrecy relating to the information disclosed; (iv) is independently
developed by Employee outside the scope of his/her employment without use of Confidential
Information or Trade Secrets; or (v) is Employee’s personnel information.
3.4 Customer. The term “Customer” means any individual or entity for whom/which the Company has
provided services or products or made a proposal to perform services or provide products.
3.5
Restricted Customer. “Restricted Customer” means any individual or entity for
whom/which the Company provided services or products and with whom/which the Employee had contact
on behalf of the Company during the 18 months preceding the end, for whatever reason, of Employee’s
employment.
3.6 Cause. The term “Cause” means any breach of this Agreement, act of dishonesty,
insubordination, violation of Company policy or conviction of a crime, the circumstances of which
substantially relate to Employee’s job.
3.7 Business Ideas. The term “Business Ideas” means all ideas, designs, modifications,
formulations, specifications, concepts, know-how, trade secrets, discoveries, inventions, data,
software, developments and copyrightable works, whether or not patentable or registrable, which
Employee originates or develops, either alone or jointly with others while Employee is employed by
the Company and which are (i) related to any business known to Employee to be engaged in or
contemplated by the Company; (ii) originated or developed during Employee’s working hours; or
originated or developed in whole or in part using materials, labor, facilities or equipment
furnished by the Company.
4. Return of Property and Records Upon the end of employment with the Company, for whatever reason,
or upon request by the Company, Employee shall immediately return to the Company all property,
documents, records, and materials owned by, belonging and/or relating to the Company (except
Employee’s own personnel and wage and benefit materials relating solely to Employee), and all
copies of all such materials. Upon the end of Employee’s employment with the Company, for whatever
reason, or upon request by the Company, Employee further agrees to destroy such records maintained
by him/her on his/her own computer equipment and make available to the Company his/her personal
computer for inspection by it or its agent to ensure that adequate measures have been taken to
destroy such records on the Employee’s computer.
5. Business Idea Rights.
5.1
Assignment. The Company will own, and Employee hereby assigns and agrees to assign to
the Company, all rights in all Business Ideas which Employee originates or develops either alone or
working with others while Employee is employed by the Company. All Business Ideas which are or
form the basis for copyrightable works are hereby assigned to the Company shall be considered
“works for hire” as that term is defined by U.S. Copyright Law.
5.2 Disclosure. While employed by the Company, Employee will promptly disclose all Business Ideas
to the Company.
5.3 Execution of Documentation. Employee, at any time during or after the term of his/her
employment with the Company, will promptly execute all documents which the Company may reasonably
require to perfect its patent, copyright and other rights to such Business Ideas throughout the
world.
6. Non-Solicitation of Employees. During the term of Employee’s employment with the Company and
for one year thereafter, Employee shall not directly or indirectly encourage any Company employee
to terminate his/her employment with the Company or solicit such an individual for employment
outside the Company which would end or diminish that employee’s services to the Company.
7. Employee Disclosures and Acknowledgments.
7.1 Confidential Information of Others. Employee certifies that Employee has not, and will not,
disclose or use during Employee’s time as an employee of the Company, any confidential information
which Employee acquired as a result of any previous employment or under a contractual obligation of
confidentiality or secrecy before Employee became an employee of the Company. All prior
obligations (written and oral), such as confidentiality agreements or covenants restricting future
employment or consulting, that Employee has entered into which restrict Employee’s ability to
perform any services as an employee for the Company are listed below under the heading List of
Prior Obligations.
7.2 Scope of Restrictions. Employee acknowledges and represents that the scope of the
restrictions contained in this Agreement are appropriate, necessary and reasonable for the
protection of the Company’s business, goodwill, and property rights. Employee further acknowledges
that the restrictions imposed will not prevent him/her from earning a living in the event of, and
after, the end of his/her employment with the Company, for whatever reason.
7.3 Prospective Employers. Employee agrees, during the term of any restriction contained
in this Agreement, to disclose this Agreement to any entity which offers employment to Employee.
Employee further agrees that the Company may send a copy of this Agreement to, or otherwise make
the provisions hereof known to, any of Employee’s potential employers.
8. Miscellaneous.
8.1 Binding Effect. This Agreement binds Employee’s heirs, executors, administrators, legal
representatives and assigns and inures to the benefit of the Company and its successors and
assigns.
8.2 Entire Agreement; Amendment or Waiver. This Agreement contains the entire
understanding between the
parties with respect to the subject matter hereof, and all prior discussions, negotiations,
agreements, correspondence and understandings, whether oral or written, between Employee and the
Company with respect to the subject matter addressed in this agreement are merged in it and
superseded hereby. No provision of this Agreement may be amended or waived other than in writing by
the party against whom enforcement of such amendment or waiver is sought.
8.3 Injunctive Relief. The parties agree that damages will be an inadequate remedy for breaches of
this Agreement and in addition to damages and any other available relief, a court shall be
empowered to grant injunctive relief.
8.4 Governing Law. This Agreement shall be governed by and construed in accordance with the
substantive and procedural laws of the state in which the Employee’s principal business is located.
8.5 Consideration. Execution of this Agreement is a condition of Employee’s continued
employment with the Company and Employee’s employment by the Company constitutes the consideration
for Employee’s undertakings hereunder. In addition to employment, the Company offers as
consideration a minimum of two weeks severance pay if it terminates his/her employment for a reason
other than “Cause.”
8.6 Severability. The obligations imposed by this Agreement are severable and should be construed
independently of each other. The invalidity of one provision shall not affect the validity of any
other provision.
8.7 Terminable-At-Will. Nothing in this Agreement shall be construed to limit the right of
either party to terminate the employment relationship at any time with or without cause or notice.
8.8 Third Party Beneficiaries. Any Company affiliates are third party beneficiaries with
respect to Employee’s performance of his/her duties under this Agreement and the undertakings and
covenants contained in this Agreement and the Company and any of its affiliates, enjoying the
benefits thereof, may enforce this Agreement directly against Employee. The terms Trade Secret,
Confidential Information and Business Ideas shall include materials and information of the
Company’s affiliates to which Employee has access.
List
of Prior Obligations EMPLOYEE:
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
Date: February 11, 2011
| TUFCO TECHNOLOGIES, INC. |
||||
| By: | /s/ Xxxxx XxXxxxxx, III | |||
Date: February 11, 2011
