Employment Agreement, dated July 8, 2019, between Reynolds Consumer Products LLC and Michael Graham
Employment Agreement (Agreement) dated as of July 8, 2019, between Reynolds Consumer Products LLC (the Company) and Michael Graham (Employee).
A. Employee is currently employed by the Company without a written employment agreement.
B. The Company and Employee desire to enter into this Agreement to set forth their agreements regarding certain terms and conditions of Employees employment.
NOW, THEREFORE, the Company and Employee agree as follows:
1. Term. The term of Employees employment pursuant to this Agreement shall commence on the date hereof and shall continue until terminated in accordance with the terms hereof (the Term). However, Employees employment with the Company commenced on the date Employee was first employed by the Company and is not affected by the parties entering into this Agreement.
2. Position, Duties and Location. Employee shall serve in the position(s) set forth on Schedule A attached hereto. Employee shall devote substantially all of Employees working time and efforts to the business and affairs of the Company and shall not engage in any other business activity without prior written approval from the Companys CEO. Employee shall perform the services required by this Agreement at the location(s) indicated on Schedule A except for customary business travel to other locations as may be necessary to fulfill Employees duties and responsibilities hereunder.
3. Compensation and Related Matters. During the Term:
(a) Base Salary. Employees annual base salary (the Base Salary) shall be as set forth on Schedule A. The Base Salary shall be payable in periodic installments in accordance with the usual practice of the Company for its senior employees. Employees Base Salary will be reviewed but not necessarily increased annually as part of the Companys merit review process.
(b) Annual Bonus. Employee shall be eligible to receive an annual bonus (the Annual Bonus) as set forth on Schedule A. The Annual Bonus shall be determined by the Company in its sole discretion, and there is no assurance that any Annual Bonus will be earned. The Annual Bonus, if any, earned by Employee in respect of any year shall be paid to Employee at the time that the Company pays its annual bonuses to its employees generally (usually around March 15 of the following year).
(c) Other Compensation Programs. Employee shall be eligible to participate in such other compensation programs as set forth on Schedule A.
(d) Expenses. Employee shall be entitled to receive reimbursement for all reasonable expenses incurred by Employee in performing services hereunder, in accordance with the policies and procedures then in effect and established by the Company for its senior officers.
(e) Employee Benefit Programs. Employee shall be entitled to participate in the Companys employee health and welfare plans, policies, programs and arrangements as they may be amended from time to time, to the extent Employee meets the eligibility requirements for any such plan, policy, program or arrangement.
(f) Vacation. Employee shall be entitled to paid vacation, as well as holidays and other paid absences, in accordance with the Companys policies and procedures for similarly situated employees of the Company, to the extent Employee meets the eligibility requirements for any such policy and procedures.
4. Termination. Employees employment hereunder may be terminated as set forth in this Section 4. Upon any termination of Employees employment, the Term shall automatically end.
(a) Death. Employees employment hereunder shall automatically terminate upon Employees death.
(b) Discharge by the Company for Cause. The Company may terminate Employees employment hereunder for Cause at any time. For purposes of this Agreement, Cause shall mean in the good faith determination of [the Companys CEO][RGHLs CEO or Owner] that Employee has engaged in conduct consisting of (i) dishonesty or other serious misconduct related to Employees duties as an employee of the Company, or (ii) willful and continual failure (unless due to incapacity resulting from physical or mental illness) to perform the duties of Employees employment after written demand for substantial performance is delivered to Employee by the Company specifically identifying the manner in which Employee has not substantially performed such duties.
(c) Termination Without Cause. The Company may terminate Employees employment hereunder at any time without Cause upon 30 days written notice to Employee. Any termination by the Company of Employees employment under this Agreement other than pursuant to Section 4(a) or Section 4(b) shall be deemed a termination without Cause.
(d) Termination by Employee. Employee may terminate Employees employment hereunder upon 30 days written notice to the Company.
(e) Notice of Termination. Except for termination as specified in Section 4(a), any termination of Employees employment by the Company or any such termination by Employee shall be communicated by written to the other party hereto, specifying the applicable termination provision of this Agreement (a Notice of Termination). The Date of Termination shall mean: (i) if Employees employment is terminated by death, the date of death; or (ii) the date specified in the applicable Notice of Termination. Notwithstanding the foregoing, if Employee gives a Notice of Termination to the Company, the Company may unilaterally accelerate the Date of Termination and such acceleration shall not result in a termination by the Company for purposes of this Agreement.
5. Compensation Upon Termination.
(a) Termination Generally. If Employees employment with the Company is terminated for any reason, Employee (or Employees authorized representative or estate) shall, through the Date of Termination, be paid or provided with (i) any earned but unpaid Base Salary, (ii) unpaid expense reimbursements, and (iii) any vested benefits Employee may have under any employee benefit plan of the Company (the Accrued Obligations). The Accrued Obligations shall be paid at the time(s) specified under any applicable employee benefit plan, or, if there is no applicable employee benefit plan, within 30 days after Employees Date of Termination.
(b) Termination by the Company Without Cause. If Employees employment is terminated by the Company without Cause as provided in Section 4(c), then Employee shall be paid or provided with the Accrued Obligations through the Date of Termination and, subject to Section 5(c), Employee shall also be paid or provided with the following:
(i) Severance. A severance payment (the Severance Amount) in the Amount set forth on Schedule A. Subject to Section 5(c) and Section 6, the Severance Amount shall be paid to Employee in equal installments in accordance with the Companys normal payroll practices over a period set forth on Schedule A (the Severance Period); provided that no amount of the severance shall be payable until the revocation period for the Release described in Section 5(c) shall have expired (and Employee shall not have revoked Employees agreements in the Release), and any amount that would have been paid to Employee but for this proviso shall be accrued and paid to Employee on the first payroll date immediately following the expiration of such revocation period. Notwithstanding the foregoing, and in addition to any other rights or remedies the Company may have at law or in equity, if Employee breaches any of the provisions of the Restrictive Covenant Agreement, Employees right to receive further payments of the Severance Amount shall be terminated. Severance provided pursuant to this Agreement is in lieu of, and not in addition to, any severance that might be available to Employee by law, contract, policy, or otherwise, all of which are hereby waived by Employee. If Employee receives any other severance, the Severance Amount shall be reduced by the amount of such other severance.
(ii) Health Care Continuation. In addition, Employee and Employees eligible dependents, if any, shall continue to be covered by the Companys health plan (the Health Plan), as in effect from time to time, and subject to the rules thereof (including any requirement to make contributions or pay premiums, except that Employee shall contribute or pay on an after-tax basis) for 12-months from Date of Termination. If the provision to Employee of the insurance coverage described in this Section would either: (A) violate the terms of the Health Plan (or any related insurance policies), or (B) violate any of the nondiscrimination requirements of the Internal Revenue Code of 1986, as amended (the Code), applicable to the health insurance coverage, then the Company, in its sole discretion, may elect to pay Employee, in lieu of the health insurance coverage described under this Section 5(b)(ii), a lump-sum cash payment equal to the total monthly premiums (or in the case of a self-funded plan, the cost of COBRA continuation coverage) that would have been paid by the Company for Employee under the Health Plan.
(c) Release. Any payment that may become due under Section 5(b) shall be subject to Employee signing a general release of claims in favor of the Company and related persons and entities in a form and manner satisfactory to the Company (the Release) within the 21-day (or, if required by law, 45-day) period following the Date of Termination and the expiration of the seven-day revocation period for the Release. In the event Employee fails to sign such Release within the 21-day (or 45-day) period following the Date of Termination or revokes the Release prior to the expiration of the seven-day revocation period for the Release, Employee shall reimburse the Company for any payment made to Employee under Section 5(b) prior to the expiration of such seven-day revocation period for the Release. In addition, notwithstanding anything else herein to the contrary, Employees entitlement to the payments and benefits described in Section 5(b) shall be contingent upon Employee abiding by and not breaching any of the covenants set forth in the Release and in the Restrictive Covenant Agreement.
6. Section 409A.
(a) Notwithstanding anything in this Agreement to the contrary, to the extent that any payment or benefit described in this Agreement would be considered deferred compensation subject to Section 409A(a) of the Code, and to the extent that such payment or benefit is payable upon Employees termination of employment or within a certain time following the Date of Termination, then such payments or benefits shall be payable only upon Employees separation from service within the meaning of Section 409A of the Code and the Date of Termination shall be the date on which Employee experiences such separation from service. The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). If this Agreement provides for a payment to be made within a period of time, the date within such period on which such payment shall be made shall be determined by the Company in its sole discretion and, for the avoidance of doubt, the Company will pay the Severance Amount after the 45th day following the Date of Termination.
(b) Notwithstanding anything in this Agreement to the contrary, if at the time of Employees separation from service, Employee is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code, then, to the extent any payment or benefit that Employee becomes entitled to under this Agreement on account of Employees separation from service would be considered deferred compensation subject to Section 409A(a) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after Employees separation from service, or (B) Employees death.
(c) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by Employee during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year. Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) the Company makes no representation or warranty and shall have no liability to Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
7. Restrictive Covenant Agreement. The Companys obligations under this Agreement, including the Companys agreement to provide severance and to allow Employee to participate in the other compensation programs as provided on Schedule A, is conditioned on Employee signing a Restrictive Covenant Agreement in the form of Schedule B (the Restrictive Covenant Agreement).
8. Arbitration of Disputes. Any controversy or claim arising out of or relating to this Agreement or the breach thereof or otherwise arising out of Employees employment or the termination of that employment (including, without limitation, any claims of unlawful employment discrimination whether based on age or otherwise) shall, to the fullest extent permitted by law, be settled by arbitration in any forum and form agreed upon by the parties or, in the absence of such an agreement, under the auspices of the American Arbitration Association (AAA) in Chicago, IL in accordance with the Employment Dispute Resolution Rules of the AAA, including, but not limited to, the rules and procedures applicable to the selection of arbitrators. In the event that any person or entity other than Employee or the Company may be a party with regard to any such controversy or claim, such controversy or claim shall be submitted to arbitration subject to such other person or entitys agreement. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This Section 8 shall be specifically enforceable. Notwithstanding the foregoing, this Section 8 shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or a preliminary injunction in circumstances in which such relief is appropriate (including, without limitation, the Companys enforcement of the Restrictive Covenant Agreement); provided, however, that any other relief shall be pursued through an arbitration proceeding pursuant to this Section 8. Further notwithstanding the foregoing, this Section 8 shall not limit the Companys ability to terminate Employees employment at any time.
9. Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties concerning such subject matter, including, but not limited to, any prior Agreement and/or compensation plan to which Employee and the Company or any of its affiliates are parties.
10. Withholding. All payments made by the Company to Employee under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law.
11. Enforceability. If any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
12. Survival. The provisions of this Agreement shall survive the termination of this Agreement and/or the termination of Employees employment to the extent necessary to effectuate the terms contained herein.
13. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
14. Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to Employee at the last address Employee has filed in writing with the Company or, in the case of the Company, at its main offices, attention of Lance Mitchell.
15. Amendment. This Agreement may be amended or modified only by a written instrument signed by Employee and by a duly authorized representative of the Company (other than Employee).
16. Governing Law. This Agreement shall be construed under and be governed in all respects by the laws of the State of Illinois without giving effect to the conflict of laws principles of such State.
17. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above.
|Name: V. Lance Mitchell|
Key Terms of Employment
Position: Chief Financial Officer, Reynolds Consumer Products LLC
Primary Location(s): Lake Forest, IL
Base Salary: $798,716
Annual Bonus Target: 60% of Base Salary
Severance Amount/Period: (i) Base Salary, paid in equal installments over 12 months following the Date of Termination except that if (i) a Sale of Business (as defined below) occurs and (ii) within 12 months following the closing of such Sale of Business either (A) Employee is terminated without Cause, or (B) Employees position is materially reduced in remuneration or scope of duties and Employee terminates Employees employment, then the Severance Amount shall be (i) two times Base Salary plus (ii) Annual Bonus at Target prorated through Date of Termination, paid in equal installments over 24 months following the Date of Termination. All other terms of Section 5(b)(i) of the Agreement will apply. For purposes of this provision a Sale of Business shall mean the sale or other disposition of (x) more than 50% of the shares or other equity interests of the Company or the Companys direct or indirect parent to a non-affiliated party, or (y) more than 50% of the businesses or assets that, as of the most recent year end, generated more than 50% of the Companys EBITDA (as determined in good faith by RGHLs CEO, based on the Companys regularly prepared financial statements), provided that a disposition as a result of lender foreclosure on assets or pursuant to a bankruptcy or judicially administered reorganization shall not constitute a Sale of Business. Employees position shall not be materially reduced by reason of the Company being smaller or having less operations as a result of the Sale of Business so long as Employees duties and responsibilities are generally consistent with Employees duties and responsibilities prior to the Sale of Business.
6. Other Compensation Programs:
Long-Term Incentive Program Target: 75% of Base Salary
Restrictive Covenant Agreement
Restrictive Covenant Agreement dated July 8, 2019, between Reynolds Consumer Products LLC (the Company) and Michael Graham (Employee).
A. The Company and Employee have entered into an Employment Agreement of even date herewith. The execution of this Restrictive Covenant Agreement is a condition to the Companys obligations under the Employment Agreement.
B. In addition, the Company is providing Employee other consideration for Employees execution of this Agreement, as provided in a separate letter of even date herewith.
NOW, THEREFORE, the Company and Employee agree as follows:
1. Definitions. As used in this Agreement:
(a) Company Product means any product developed, manufactured, produced or distributed by the Company during the 24 month period immediately preceding the termination of Employees employment with the Company. Such a product shall only constitute an the Company Product for purposes of this Agreement if, as a result of Employees employment with the Company, Employee had access to Proprietary Information related to the product or Employee designed, marketed, or interacted with Customers or Prospective Customers regarding the product during the 12 month period immediately preceding the termination of Employees employment with the Company.
(b) Competitive Activity means the marketing, distribution, promotion, sales, development, delivery, or servicing of any Company Product.
(c) Customer means any business, including without limitation customers or distributors, with whom the Company transacted business during the 24 month period immediately preceding the termination of Employees employment with the Company. Such a person or entity shall only constitute a Customer for purposes of this Agreement if, as a result of Employees employment with the Company, Employee had Material Contact with, or knew Proprietary Information of or about, the Customer during the 24 month period immediately preceding the termination of Employees employment with the Company.
(d) Material Contact means any contact between Employee and any Customer or Prospective Customer:
(1) with whom or with which Employee dealt on behalf of the Company;
(2) whose dealings with the Company were coordinated or supervised by Employee;
(3) who receives products or services sold or provided by the Company, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee, within the 12 month period preceding the last day of Employees employment with the Company; or
(4) that resulted in Employee obtaining Proprietary Information about a Customer or Prospective Customer.
(e) Proprietary Information means confidential or proprietary information or trade secrets of the Company or its affiliates, including, but not limited to, materials and information, whether written, electronic, or otherwise: a) disclosed to Employee or known by Employee as a result of his or her employment with the Company, b) which is not generally known, and c) which relates to or concerns the Companys or its affiliates: innovations; ideas; plans; processes; structures; systems; know-how; algorithms; computer programs; software; code; publications; designs; methods; techniques; drawings; apparatuses; government filings; patents; patent applications; materials; devices; research activities; reports and plans; specifications; promotional methods; financial information; forecasts; sales, profit and loss figures; personal identifying information of employees; marketing and sales methods and strategies; plans and systems; customer protocols and training programs; customer, prospective customer, vendor, licensee and client lists; information about customers, prospective customers, vendors, licensees and clients; information about relationships between the Company or its affiliates and their business partners, acquisition prospects, vendors, suppliers, prospective customers, customers, employees, owners, licensees and clients; information about deals and prospective deals; information about products, including but not limited strengths, weaknesses and vulnerabilities of existing products, as well as product strategies and roadmaps for future products and releases; and information about pricing including but not limited to license types, models, implementation costs, discounts and tolerance for discounts. Proprietary Information shall also include all information and matters specifically designated as proprietary and/or confidential by the Company or its affiliates or their customers or other business partners. The following information will not be considered Proprietary Information under this Agreement: a) information that has become generally available to the public through no wrongful act of Employee; b) information that Employee identified prior to Employees employment with the Company; and c) information that is disclosed to the public pursuant to the binding order of a government agency or court.
(f) Prospective Customer means any prospective business, including without limitation prospective customers and prospective distributors, with whom the Company was attempting to transact business within the six month period immediately preceding the termination of Employees employment with the Company. Such a person or entity shall only constitute a Prospective Customer for purposes of this Agreement if, as a result of Employees employment with the Company, Employee had Material Contact with, or knew Proprietary Information of or about, the Prospective Customer during the six month period immediately preceding the termination of Employees employment.
2. Legitimate Interest. Due to the nature of the Companys business, certain the Company employees, including Employee, have access to Proprietary Information. Likewise, via their employment, certain the Company employees, including Employee, receive specialized training and/or shall be introduced to, given the opportunity to develop personal contacts with, and actually develop an advantageous familiarity as to the Companys Customers and Prospective Customers. If the confidential or trade secret information, specialized training, or contacts and familiarity were made available to the Company competitors or other individuals outside the Company, or otherwise used against the Company interests, it would undoubtedly result in a loss of business or competitive position for the Company and/or harm the Companys goodwill and investment in developing and maintaining its business relationships. Employee also agrees he/she holds a position uniquely essential to the management, organization, and/or service of the Company and the Companys business is inherently national in character.
3. Disclosure of Existing Obligations. Except as disclosed in writing on Attachment A, Employee certifies the following:
(a) Employee is not bound by any written agreement or other obligation that directly or indirectly (i) restricts Employee from using or disclosing any confidential or proprietary information of any person or entity, (ii) restricts Employee from competing with, or soliciting actual or potential customers or business from, any person or entity, (iii) restricts Employee from soliciting any current or former employees of any person or entity, or (iv) limits Employees ability to perform any assigned duties for the Company.
(b) Employee does not have in Employees possession any confidential or proprietary information or documents belonging to others (except as disclosed in Attachment A), and will not use, disclose to, or induce the Company to use any such information or documents. To the extent Employee possesses any confidential information or documents from a former employer or other party, Employee agrees to immediately return any such confidential information or documents to the owner unless Employee has express written authorization to retain it or them or destroy such information or documents.
(c) Employee understands that the Company expects Employee to fulfill any contractual and fiduciary obligations Employee may owe to any former employer or other party, and Employee agrees to do so. Prior to execution of this Agreement, Employee certifies that Employee tendered to the Company all agreements and understandings described by this Section 3.
4. Work Made for Hire Assignment of Inventions.
(a) Employee understands and agrees all Work (defined to mean all concepts, data, databases, inventions, formulas, discoveries, improvements, trade secrets, original works of authorship, know-how, algorithms, computer programs, software, code, publications, websites, designs, proposals, strategies, processes, methodologies and techniques, and any and all other information, materials and intellectual property, in any medium) that Employee, alone or jointly, creates, conceives, develops, or reduces to practice or causes another to create, conceive, develop, or reduce to practice, shall be a work made for hire within the meaning of that term under United States Copyright Act, 17 U.S.C. §§101 et seq. Employee
agrees to promptly disclose to the Company, or any persons designated by it, all Work. Employee agrees to and hereby assigns and transfers to the Company, effective as of the date of its creation, any and all rights, title and interest Employee may have or may acquire in any Work (including any Work not deemed, for whatever reason, to have been created as a work made for hire), effective as of the date of its creation, including any and all intellectual property rights in the Work, and the right to prosecute and recover damages for all infringements or other violations of the Work.
(b) Employee hereby gives the Company the unrestricted right to use, display, distribute, modify, combine with other information or materials, create derivative works based on, sell, or otherwise exploit for any purpose, the Work and any portion thereof, in any manner and medium throughout the world. Employee irrevocably waives and assigns to the Company any and all so-called moral rights Employee may have in or with respect to any Work. Upon the Companys request, Employee shall promptly execute and deliver to the Company any and all further assignments, patent applications, or such other documents as the Company may deem necessary to effectuate the purposes of this Agreement. Employee hereby irrevocably designates and appoints the Company and its officers and agents as Employees agent and attorney-in-fact, with full powers of substitution, to act for and on Employees behalf to execute, verify and file any such documents and to do all other lawfully permitted acts as permitted in the preceding paragraph with the same legal effect as if executed by Employee. The foregoing agency and power shall only be used by the Company if Employee fails to execute within five business days after the Companys request related to any document or instrument described above. Employee hereby waives and quitclaims to the Company all claims of any nature which Employee now has or may later obtain for infringement of any intellectual property rights assigned under this Agreement or otherwise to the Company.
(c) Employee has identified on Attachment B all inventions or improvements relevant to the subject matter of Employees engagement with the Company that Employee desires to remove from the operation of this Agreement, and Employees post-employment restrictions. If there is no such list on Attachment B, Employee represents that Employee has made no such inventions and improvements at the time of signing this Agreement.
(d) The provisions of this Agreement requiring the assignment to the Company of Employees rights to certain inventions do not apply to an invention for which no equipment, supplies, facility, or trade secret information of the Company was used and which was developed entirely on the Employees own time, unless (i) the invention relates a) directly to the business of the Company, or (ii) to the Companys actual or demonstrably anticipated research or development, or (iii) the invention results from any work performed by the Employee for the Company.
5. Restrictive Covenants.
(a) Non-Solicitation of Customers. Employee agrees that, during Employees employment with the Company and for a period of 12 months following the termination of Employees employment, Employee shall not, on behalf of any entity or person other than the Company, directly or indirectly, contact or solicit any Customer, for the purpose of delivering, selling, or otherwise offering a product that is the same or similar to that of an the Company Product.
(b) Non-Solicitation of Prospective Customers. Employee agrees that, during Employees employment with the Company and for a period of 12 months following the termination of Employees employment, Employee shall not, on behalf of any entity or person other than the Company, directly or indirectly, contact or solicit any Prospective Customer, for the purpose of delivering, selling, or otherwise offering a product that is the same or similar to that of an the Company Product.
(c) Non-Solicitation of Employees. Employee agrees that, during Employees employment with the Company and for a period of 12 months following the termination of Employees employment, Employee shall not, directly or indirectly: a) induce or attempt to induce any employee of the Company or any of its affiliates with whom Employee had a working relationship in the 24 months prior to the termination of Employees employment to terminate his or her employment with the Company; b) hire or employ, or attempt to hire or employ, any employee of the Company or any of its affiliates with whom Employee had a working relationship in the 24 months prior to the termination of Employees employment; or c) assist any other person or entity in doing any of the foregoing.
(d) Limited Non-Competition. Employee agrees that during Employees employment with the Company and for a period of 12 months following the termination of Employees employment, Employee shall not, anywhere in North America (United States, Mexico or Canada): a) act in any capacity, whether or not for consideration, for any person or entity that is engaged in a Competitive Activity, or is actively planning to engage in a Competitive Activity with the Company, to the extent Employee would inevitably rely upon the Companys Proprietary Information in his/her work for that person or entity; b) act in the same or substantially similar capacity that Employee acted in for the Company, whether or not for consideration, for any person or entity that is engaged in a Competitive Activity, or is actively planning to engage in a Competitive Activity with the Company; or c) take, facilitate, or encourage any action the purpose or effect of which is to evade the intent of this subsection. Given the national nature of the Companys business, the extent to which Employee has been (or will be) exposed to the Companys Proprietary information, and the ability of Employee to carry out Employees work remotely, regardless of physical location, Employee acknowledges the geographic scope of the post-employment restriction in this Section 5(d) shall is reasonable and appropriate.
(e) Confidentiality Covenant. During Employees employment with the Company and following the termination of Employees employment:
(i) Employee will not disclose or transfer, directly or indirectly, any Proprietary Information to any person or entity other than as authorized by the Company. Employee understands and agrees that disclosures authorized by the Company for the benefit of the Company must be made in accordance with the Companys policies and practices designed to maintain the confidentiality of Proprietary Information, for example providing information after obtaining signed non-disclosure or confidentiality agreements;
(ii) Employee will not use, directly or indirectly, any Proprietary Information for the benefit or profit of any person or organization, including Employee, other than the Company;
(iii) Employee will not remove or transfer from any of the Companys offices or premises any materials or property of the Company (including, without limitation, materials and property containing Proprietary Information), except as is strictly necessary in the performance of Employees assigned duties as an employee;
(iv) Employee will not copy any Proprietary Information except as needed in furtherance of and for use in the Companys business. Employee agrees that copies of Proprietary Information must be treated with the same degree of confidentiality as the original information and are subject to the same restrictions contained in this Agreement;
(v) Employee will promptly upon the Companys request, and in any event promptly upon the termination of Employees employment with the Company, return to the Company all materials and property removed from or belonging to the Company and Employee will not retain copies of any of such materials and property;
(vi) Employee agrees to take all reasonable steps to preserve the confidential and proprietary nature of Proprietary Information and to prevent the inadvertent or accidental disclosure of Proprietary Information; and
(vii) Employee will not use or rely on the confidential or proprietary information or trade secrets of a third party in the performance of Employees work for the Company except when obtained through lawful means such as contractual teaming agreements, purchase of copyrights, or other written permission for use of such information.
(f) Scope of Covenants. The parties desire for the restrictive covenants, including any time period and geographic scope, to be construed as broadly as permitted by applicable law. It is the parties intent, and a critical inducement to the Company entering into this Agreement, to protect and preserve the Companys legitimate interests, and thus the parties agree that the time period and the geographic coverage and scope of the post-employment restrictions herein are reasonable and necessary. However, if a court of competent jurisdiction finds that the time period of any of the foregoing post-employment restrictions is too lengthy, the geographic scope is too broad, or the agreement overreaches in any way, the parties authorize and respectfully ask the court to modify or, if modification is not possible, strike the offending portion, but only that portion, and grant the relief reasonably necessary to protect the Companys interests so as to achieve the original intent of the parties.
(g) Remedies. Employee agrees that a threatened or existing violation of any of the post-employment restrictions contained in this Agreement would cause the Company irreparable injury for which it would have no adequate remedy at law and agrees that the Company will be entitled to obtain injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it at law or in equity. Employee also agrees that Employee
will be liable to the Company for the attorneys fees, expert witness fees, and costs incurred by the Company as a result of: (i) any action by the Company against Employee to enforce any of the post-employment restrictions contained in this Agreement in which the Company prevails in any respect, or (ii) any action by Employee against the Company challenging the legal enforceability of any such post-employment restriction in which Employee does not prevail. Employees obligations under each sub-section of Section 5 of this Agreement are distinct, separable, and independently enforceable. The real or perceived existence of any claim or cause of action against the Company, whether predicated on this Agreement or some other basis, will not alleviate Employee of Employees obligations under this Agreement and will not constitute a defense to the enforcement by the Company of post-employment restrictions contained herein.
(h) Tolling of Time Periods. Employee agrees that in the event Employee violates any subsection of Section 5 of this Agreement as to which there is a specific time period during which Employee is prohibited from certain actions and activities, such violation shall toll the running of such time period from the date of such violation until the date the violation ceases.
(i) Inevitable Use of Proprietary Information. Employee acknowledges and agrees that, after Employees separation of employment, Employee will possess the Companys Proprietary Information which Employee would inevitably use if Employee were to engage in the conduct prohibited by Section 5 (including each of its sub-sections), that such use would be unfair and extremely detrimental to the Company and, in view of the benefits provided to Employee in this Agreement, that such conduct on his or her part would be inequitable. Accordingly, Employee separately and severally agrees for the benefit of the Company to be bound by each of the covenants described above.
6. Reasonable Restrictions. Employee acknowledges that it is necessary and appropriate for the Company to protect its legitimate business interests by restricting Employees ability to engage in certain competitive activities and any violation of such post-employment restrictions would result in irreparable injury to the Companys legitimate business interests. The parties agree that the post-employment restrictions contained in this Agreement are drafted narrowly to safeguard the Companys legitimate business interests while not unreasonably interfering with Employees ability to obtain other employment.
7. Entire Agreement. No representation, promise, understanding, or warranty not set forth herein has been made or relied upon by either party in making this Agreement. No modification, amendment or addition will be valid, unless set forth in writing and signed by the party against whom enforcement of any such modification, amendment or addition is sought. Notwithstanding, this Agreement supersedes any prior confidentiality agreements or restrictive covenants between the Company and Employee provided however that if a court of competent jurisdiction refuses to enforce this Agreement, then the parties agree that the term of any prior confidentiality or restrictive covenants shall govern.
8. At Will Employment. Nothing in this Agreement shall be deemed to constitute a contract of employment for any given duration. The relationship between the Company and Employee shall be employment-at-will and either the Company or Employee may terminate it at any time for any reason without liability.
9. Subsequent Employment. In order to protect the Companys rights under this Agreement, Employee agrees that:
(a) For a period of 12 months following the termination of Employees employment with the Company reason, Employee shall provide the Company with complete and accurate information concerning Employees plans for employment. Employee hereby authorizes the Company, at its discretion, to contact Employees prospective or subsequent employers and inform them of this Agreement or any other policy or employment agreement between Employee and the Company that may be in effect on Employees last day of employment. Employee understands that Employee has a duty to contact the Company if Employee has any questions regarding whether or not conduct by Employee would be restricted by this Agreement; and
(b) Employee shall make the terms and conditions of the post-employment restrictions in this Agreement known to any business, entity or persons engaged in activities competitive with the Companys business with which Employee becomes associated during Employees employment with the Company and in the 12 month period after the termination of Employees employment.
10. Assignment of Agreement. The Company may assign this Agreement, its rights, interests and remedies under this Agreement, and its obligations under this Agreement, at any time in the discretion of the Company and without notice to Employee. The validity of this Agreement will not be affected by the sale (whether via a stock or asset sale), merger, or any other change in ownership of the Company. Employee understands that Employees obligations under this Agreement are personal, and that Employee may not assign this Agreement, or any of Employees rights, interests, or obligations under this Agreement.
11. Non-Waiver. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder, will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided herein will be cumulative and in addition to any rights or remedies provided by law or equity.
12. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any conflict of law principles.
13. Consent To Jurisdiction. The parties expressly consent to the exclusive jurisdiction of the state or federal courts of Illinois to resolve any and all disputes arising under the post-employment restrictions contained in Section 5 of this Agreement and hereby waive any right that they might have to object to jurisdiction or venue within such court or any defense based on the doctrine of forum non conveniens. The parties also agree that any and all disputes arising under the post-employment restrictions contained in Section 5 of this Agreement may be resolved in a state or federal court and shall not be subject to arbitration irrespective of any other agreement.
14. Counterparts & Signatures. This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Facsimile, electronic (PDF, etc.) and other copies or duplicates of this Agreement are valid and enforceable as originals. Similarly, Agreements signed by hand, electronically (DocuSign or similar service), or, on behalf of the Company, by signature stamp, are valid and enforceable as original signatures.
15. Notice of Immunity. Employee understands that nothing in this Agreement is intended to prohibit Employee from disclosing information, including Proprietary Information, which is permitted to be disclosed by the Federal Defend Trade Secrets Act, which provides that an individual may not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret (a) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, Employee understands that if Employee files a lawsuit against the Company for retaliation based on the reporting of a suspected violation of law, Employee may disclose a trade secret to Employees attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the trade secret is not disclosed except pursuant to court order. To the extent Employee suspects a violation of the law, Employee should report their suspicion to an officer of the Company or in accordance with relevant the Company policies.
16. Return of the Company Property. At the request of the Company (or, without any request, upon termination of my employment with the Company), Employee will immediately deliver to the Company (a) all the Company property that is then in Employees possession, custody or control, including, without limitation, all keys, access cards, cell phones, tablets, computer hardware including but not limited to any hard drives, external storage devices, diskettes, fobs, laptops, tablets, computers and personal data assistants (and the contents thereof), internet connectivity devices, computer software and programs, data, materials, papers, books, files, documents, records; (b) any and all documents or other items containing, summarizing, or describing any Proprietary Information, including all originals and copies in whatever form; (c) any personal device that Employee synced with or used to access any the Company system for purpose of inspection and copying; and (d) a list of passwords or codes needed to operate or access any of the items referenced in this Section 16.
17. Promotional Materials. Employee authorizes and consents to the creation and/or use of Employees likeness as well as Employees name by the Company, and persons or organizations authorized by it, without reservation or limitation and without further consideration. Pursuant to this authorization and consent, the Company may, for example, use Employees likeness on its website, and publish and distribute advertising, sales, or other promotional literature containing a likeness of Employee in the course of performing Employees job duties. Employee also waives any cause of action for personal injury and/or property damage by virtue of the creation and use of such a likeness. Property rights to any likeness of Employee produced or prepared by the Company, or any person or organization authorized by it, shall vest in and remain with the Company. As used herein, likeness shall include a photograph, photographic reproduction, audio transmission, audio recording, video transmission and/or video recording, as well as any other similar medium.
18. Fair Meaning. The language of this Agreement shall be construed as a whole, according to its fair meaning, and not strictly for or against any party.
19. Additional Consideration. Employee understands that the Companys obligations under the Employment Agreement, as well as the provision of the additional consideration identified in the Preliminary Statement, are conditioned upon Employee signing this Agreement. Further, as a result of Employees employment, Employee shall be (or has been) given access to the Companys Proprietary Information, provision of confidential information, opportunities for advancement, and opportunities to participate in confidential meetings and specialized training, which shall constitute independent consideration for the post-employment restrictions contained in this Agreement and would not be (or would not have been) given to Employee without Employees agreement to abide by the terms and conditions of this Agreement, including without limitation the ancillary obligations of confidentiality and non-disclosure.
By initialing below, Employee specifically acknowledges that Employee has read, understands and agrees to Section 19.
By executing this Agreement below, the parties confirm they have read, understood, and voluntarily agreed to be bound by the entire Agreement.
|Printed:||Michael E. Graham|
|Signed:||//s// Michael E. Graham|
|Printed:||V. Lance Mitchell|
|Signed:||//s// V. Lance Mitchell|
List of Confidential or Proprietary Information Belonging to Others
List of Prior Inventions or Improvements