DATE: August 1, 2014
EXHIBIT 10.1
DATE: August 1, 2014
BETWEEN Brady Australia Pty Ltd ACN 000 788 447 AND Brady Corporation AND Stephen Xxxxxx |
Xxxxx 00 |
000 Xxxxxx Xxxxxx |
XXXXXXXXXX XXX 0000 |
DX 0000 XXXXXXXXXX XXX |
Tel: (00) 0000 0000 |
Fax: (00) 0000 0000 |
Dir: (00) 0000 0000 |
Ref: SJB140396 |
Email: xxxxxx@xxxxxxxxxxxx.xxx.xx |
THIS Deed is made this 1st day of August 2014
Parties:
Xxxxx Australia Pty Ltd, ACN 000 788 447 | |
of 0 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx XXX 0000 | (“Xxxxx Australia”) |
AND:
Xxxxx Corporation (a United States Corporation) | |
of 0000 Xxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000 | (“Xxxxx Corporation”) |
AND:
Xxxxxxx Xxxxxx | |
of 0/00 Xxxxxxxxxx Xxx XXXXXXXXX XXX 0000 Xxxxxxxxx | (“Xxxxxxx”) |
Background
A. | References to Xxxxx Australia and to Xxxxx Corporation incorporate all subsidiary companies of those companies respectively. |
B. | Stephen has been employed by Xxxxx Australia since 1999, and most recently held the positions of Vice President Xxxxx Corporation, President/Asia Pacific and President/Die Cut (“the employment”). |
X. | Xxxxx Australia, Xxxxx Corporation and Xxxxxxx have agreed that Stephen’s employment will terminate (“the termination”) on the terms set out in this Deed on the grounds of redundancy, in view of the impending divestiture of Die Cut from Xxxxx ownership. |
D. | While working for Xxxxx Australia and Xxxxx Corporation and their subsidiary and affiliated companies, Xxxxxxx has had access to confidential information and commercially sensitive business information of Xxxxx Australia and Xxxxx Corporation and their subsidiaries and affiliates. |
E. | The parties have agreed, without admissions, to finalise all claims and issues arising out of the employment and the termination as stated in this deed. |
Operative Part
The parties agree as follows:
1 | Termination of employment and consequences of termination |
1.1 | Xxxxx and Xxxxxxx acknowledge and agree that Stephen’s employment in the positions as Vice President of Xxxxx Corporation, President/Asia Pacific, and President/Die-Cut and his employment with Xxxxx, shall terminate on September 30, 2014 (“the Termination Date”). |
1.2 | Xxxxxxx hereby provides notice of his resignation from all officer and director positions of Xxxxx Australia, Xxxxx Corporation and all related corporate entities as of that date. |
1.3 | Stephen’s employment will terminate at 11:59 p.m. on the Termination Date. |
1.4 | All of Stephen’s balances, including Company stock, within any Company plan will be paid out in accordance with the provisions of each plan and Stephen’s valid elections under such plans. In addition, Xxxxxxx shall have all of his pre-existing rights with respect to stock options and restricted |
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stock in accordance with the equity plans and granting agreements governing such equity. Following the Termination Date, Xxxxxxx will be provided with a summary of outstanding grants and post-termination exercise periods under those equity agreements.
1.5 Xxxxx Australia will pay to Xxxxxxx:
(a) | payment of $299,000/AUD, being 12 months of base salary with respect to redundancy, payable over the 12 months following the Termination Date in accordance with the usual payroll practices of Xxxxx Australia, with the first such payment to be made on the first pay date after the Termination Date; |
(b) | a payment of $100,000/AUD in recognition of Stephen’s work in connection with the divestiture of the Die Cut business; and, |
(c) | all accrued annual and long service leave; |
in each case, subject to deduction of tax as an employment termination payment, and in the case of (a) on the basis applicable to redundancy.
1.6 Xxxxx Australia will also provide to Xxxxxxx:
(a) | 12 months of outplacement services not to exceed $10,000.00/AUD at an outplacement firm selected by Xxxxxxx and approved by Company ; and, |
(a) | the option to retain his company computer/mobile phone/iPad fully wiped of all company-related data and information. |
2 | Confidentiality and return of company property |
2.1 | The parties specifically agree that the benefits provided under clause 1 fully satisfy any obligation Xxxxx Australia or Xxxxx Corporation may have to provide salary payments to Xxxxxxx under any Confidential Information or Non-Compete Agreement he may have signed. All Confidentiality, Non-Solicitation and Non-Compete restrictions and responsibilities to which Xxxxxxx will be subject after execution of this Agreement are set forth in this clause 2. |
2.2 | In addition, and as further consideration for this Agreement, Xxxxxxx agrees to, understands and acknowledges the following: |
(a) | during his employment with Xxxxx Australia and Xxxxx Corporation, he was provided with Confidential Information relating to the companies and their subsidiary and affiliated companies, and the business and clients of Xxxxx Australia and Xxxxx Corporation and their subsidiary and affiliated companies, the disclosure or misuse of which would cause severe and irreparable harm to them. |
(b) | Xxxxxxx agrees that all Confidential Information is and will remain the sole and absolute property of Xxxxx Australia and Xxxxx Corporation respectively. |
(c) | Upon the Termination Date, Xxxxxxx must immediately return to Xxxxx Australia and Xxxxx Corporation all documents and materials that contain or constitute Confidential Information, in any form whatsoever, including but not limited to, all copies, abstracts, electronic versions, and summaries thereof. |
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(d) | Xxxxxxx further agrees that, without the written approval of either Xxxxx Australia or Xxxxx Corporation, he will not disclose, use, copy or duplicate, or otherwise permit the use, disclosure, copying or duplication of any Confidential Information. Xxxxxxx agrees to take all reasonable steps and precautions to prevent any unauthorized disclosure, use, copying or duplication of Confidential Information. |
(e) | For the purposes of this Deed, Confidential Information means any and all financial, technical, commercial or other information concerning the business and affairs of Xxxxx Australia and Xxxxx Corporation, or any of their subsidiary and affiliated companies, that is confidential and proprietary to Xxxxx Australia or Xxxxx Corporation, or any of their subsidiary and affiliated companies, including without limitation, |
(i) information relating to the past and existing customers and vendors and development of prospective customers and vendors, including specific customer product requirements, pricing arrangements, payments terms, customer lists and other similar information;
(ii) inventions, designs, methods, discoveries, works of authorship, creations, improvements or ideas developed or otherwise produced, acquired or used by either Xxxxx Australia or Xxxxx Corporation or any of their subsidiary or affiliated companies;
(iii) the proprietary programs, processes or software, including but not limited to, computer programs in source or object code and all related documentation and training materials, including all upgrades, updates, improvements, derivatives and modifications thereof and including programs and documentation in incomplete stages of design or research and development;
(iv) the subject matter of the patents, design patents, copyrights, trade secrets, trademarks, service marks, trade names, trade dress, manuals, operating instructions, training materials, and other industrial property, including such information in incomplete stages of design or research and development; and
(v) other confidential and proprietary information or documents relating to the products, business and marketing plans and techniques, sales and distribution networks and any other information or documents which Xxxxx Australia or Xxxxx Corporation or any of their subsidiary or affiliated companies protect as being confidential.
(f) | Xxxxxxx further agrees that, without the written approval of the Board of Directors of either Xxxxx Australia or Xxxxx Corporation, he will not engage in any of the conduct described in subsection (i) below, either directly or indirectly, or as an employee, contractor, consultant, partner, officer, director or stockholder, other than a stockholder of less than 5% of the equities of a publicly traded corporation, or in any other capacity for any person, firm, partnership or corporation: |
(i) for a period of 12 months following the Termination Date, Xxxxxxx will not:
(A) perform duties as or for a Competitor that are the same as or similar to the duties performed by him for either Xxxxx Australia or Xxxxx Corporation at any time during any part of the 24 month period preceding the Termination Date; or
(B) participate in the inducement of or otherwise encourage employees, clients, or vendors of either Xxxxx Australia or Xxxxx Corporation or any of their subsidiary or affiliated companies to currently and/or prospectively breach, modify, or terminate any agreement or relationship they have or had with either of those companies during any part of the 24 month period preceding the Termination Date.
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For purposes of this Agreement, a Competitor shall mean any corporation, person, firm or organization (or division or part thereof) engaged in or about to become engaged in research and development work on, or the production and/or sale of, any product or service anywhere in the world which is directly competitive with one with respect to which Xxxxxxx acquired Confidential Information by reason of his work with Xxxxx Australia or Xxxxx Corporation or any of their subsidiary or affiliated companies.
(g) | Xxxxxxx acknowledges and agrees that compliance with this clause 2 is necessary to protect Xxxxx Australia and Xxxxx Corporation, and that a breach of any portion of this clause 2 will result in irreparable and continuing damage to Xxxxx Australia and Xxxxx Corporation for which there will be no adequate remedy at law, as the confidentiality of the information of which Xxxxxxx is aware is substantially indistinguishable from the personal skills, knowledge and ability he has developed in the course of his employment, and can be protected only by these restraints. In the event of a breach of this clause 2, or any part thereof, either Xxxxx Australia or Xxxxx Corporation, and their successors and assigns will be entitled to seek injunctive relief and to such other and further relief as is proper under the circumstances. Either Xxxxx Australia or Xxxxx Corporation may institute and prosecute proceedings in any Court of competent jurisdiction either in law or in equity to obtain damages for any such breach of this clause 2, or to enjoin Xxxxxxx from performing services in breach of this clause 2 during the term of employment and for a period of 12 months following the Termination Date. Xxxxxxx hereby agrees to submit to the jurisdiction of any Court of competent jurisdiction in any disputes that arise under this Agreement. If any such dispute is before a Court of competent jurisdiction in Australia, the law of New South Wales shall apply. |
(h) | Xxxxxxx further agrees that, in the event of a breach of this paragraph 9, Xxxxx Australia and Xxxxx Corporation shall also be entitled to recover the value of any amounts previously paid or payable under this Agreement. |
(i) | In case any one or more of the provisions of this clause 2 is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected or impaired in any way. |
(j) | XXXXXXX HAS READ THIS CLAUSE 2 AND AGREES THAT THE CONSIDERATION PROVIDED IS FAIR AND REASONABLE AND FURTHER AGREES THAT GIVEN THE IMPORTANCE TO XXXXX AUSTRALIA OR XXXXX CORPORATION OF THEIR CONFIDENTIAL AND PROPRIETARY INFORMATION, THE FOREGOING RESTRICTIONS ON HIS ACTIVITIES ARE LIKEWISE FAIR AND REASONABLE. |
3 | Releases |
3.1 | Xxxxxxx releases Xxxxx Australia and Xxxxx Corporation from all claims and liabilities related to the employment and the termination and this deed may be pleaded in bar to all such claims or liabilities, other than workers compensation claims or claims with respect to superannuation, or any action to enforce this deed. |
4 | Confidentiality of this deed |
4.1 | The parties agree that the terms of this deed and the negotiations which preceded it, are confidential and not to be disclosed to any other person without written agreement of the other party, other than for purposes of enforcement of this deed, or as required by law or for the purpose of obtaining professional legal or financial advice. |
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5 | Non-disparagement |
5.1 | Xxxxx Australia and Xxxxx Corporation each agrees that it will not make, nor knowingly authorise or allow its directors, officers, employees or agents to make, disparaging statements about Xxxxxxx to any other person. |
5.2 | Xxxxxxx agrees that he will not make any disparaging statement about Xxxxx Australia, Xxxxx Corporation or their directors, officers, employees or agents to any other person. |
6 | Independent legal advice |
6.1 | Xxxxxxx acknowledges that he has had sufficient time to consider the terms of this deed, and the opportunity to obtain independent advice (legal, financial or otherwise) with respect to this deed. |
7 | Governing Law |
7.1 | This deed and the rights and obligations of the parties are to be construed in accordance with the laws of the Commonwealth of Australia and the State of New South Wales. |
8 | Entire agreement |
8.1 | The provisions of this deed contain the entire agreement between the parties as to the subject matter of this deed. |
9 | Severability |
9.1 | If any provision of this deed is found to be invalid or of no force or effect, then this deed is to be construed as if that provision is not in this deed but remainder of this instrument retains its full force and effect. |
10 | Counterparts |
10.1 This deed may be executed in counterparts and all counterparts taken together to constitute one document.
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EXECUTED as a Deed
SIGNED, SEALED & DELIVERED by XXXXXXX XXXXXX in the presence of: | ||
/s/ X.X. Xxxxxx | /s/ Xxxxxxx Xxxxxx | |
Witness | Xxxxxxx Xxxxxx | |
SIGNED, SEALED & DELIVERED by Xxxxx Australia Pty Ltd ACN 000 788 447 in accordance with the provisions of section 127 of the Corporations Xxx 0000: | ||
/s/ Xxxxxx Xxxxxx | /s/ Xxxxxx X. Xxxxxx | |
Director/Secretary: Xxxxxx Xxxxxx | Director: Xxxxxx Xxxxxx | |
SIGNED, SEALED & DELIVERED by Xxxxx Corporation (a United States Corporation): | ||
/s/ Xxxxxx X. Xxxxxx | ||
Authorized Representative: Xxxxxx Xxxxxx | ||
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