EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of the ____ day of ______2012 by and between PRECO INC., a Kansas corporation (“Employer”) and ______ an individual (“Employee”). The Recitals are an integral part of this Employment Agreement (“Agreement”).
RECITALS
WHEREAS, Employer is engaged in the business of manufacturing, selling and servicing laser and non-laser systems and in the business of providing contract manufacturing services to customers;
WHEREAS, Employee understands that his or her continued employment with Employer is contingent upon the Employee’s agreement to the terms and conditions herein set forth;
WHEREAS, Employee acknowledges that he or she will come into contact and will gain knowledge of certain information which is confidential during the course of his or her employment with Employer (including confidential information of the Employer’s customers and business associates), and that irreparable harm would result to Employer if such confidential information were to be disclosed to the general public, in particular, to Employer’s competitors; and
WHEREAS, the parties desire to set forth in writing the terms and conditions of their agreements and understandings;
NOW THEREFORE, in consideration of the premises and of the respective covenants and agreements of the parties herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending legally to be bound, agree as follows:
1. Employment of Employee. Subject to the terms and conditions set forth herein, Employer agrees to employ Employee, and Employee hereby agrees to be employed by Employer commencing on the ____ day of ______2012. The Employer and Employee agree that this is an “employment at will” relationship and as such this employment relationship may be terminated at any time by either party with or without cause. In the event the employment relationship is terminated, the Employer shall only be liable to the Employee for wages earned and any employee benefits due to Employee, under Employer’s then existing Employee benefit policies, up to the termination and Employer may deduct from such payments any amounts Employee owes Employer.
2. Bond on Employee. If Employer desires to have a bond issued covering Employee, Employee consents to Employer furnishing the bonding company with any information concerning Employee that is necessary for this purpose.
3. Restrictive Covenant and Confidentiality Provision.
(a) Restriction. Employee acknowledges that the services to be rendered to Employer hereunder puts Employee in a special and unusual position of trust with Employer, which position requires the disclosure to Employee of confidential information, which term includes, without limitation: manufacturing procedures, methods, machines, compositions, technology, formulas, know-how, research and development programs and plans, sales methods, customer lists, information received from Customers which is subject to a confidentiality agreement between Employer and the Customer, customer wages and requirements, and other confidential business information, trade secrets and data (hereinafter referred to as “Confidential Information”). As a material inducement to Employer to enter into this Agreement, Employee represents, warrants, covenants and agrees as follows:
(1) Noncompetition. During this Agreement, and for a period of two (2) years after the termination of Employee’s employment under this Agreement, for any reason whatsoever, Employee shall not, directly or indirectly, for himself or herself, or on behalf of any person, firm, partnership, corporation or otherwise: (i) contact or solicit business from any customer, client, account or other business associate with which Employee has had any contact or knowledge during this Agreement, for the sale of any service, goods, wares, merchandise, products, property, or articles of commerce which are competitive with those offered for sale by Employer during this Agreement; (ii) accept employment, consult with or provide services to any customer, client, or account of employer (iii) engage in a competitive line of business or accept employment with a competitor of Employer; or (iv) solicit for employment, enter into an independent contractor relationship with, or employ any person employed by Employer.
(2) Confidential Information. Employee recognizes and acknowledges that the Confidential Information regarding technical information, list of Employer’s customers, the personal relationship established with them and the knowledge of Employer’s marketing strategies are valuable, special and unique parts of Employer’s business. Employee acknowledges that in and as a result of his or her employment with Employer, he or she will be making use of, acquiring, and/or adding to Confidential Information of Employer. As a material inducement to Employer to enter into this Agreement, Employee covenants and agrees that he or she shall not, at any time during this Agreement, or indefinitely after the termination of the Employee’s employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself or herself, or on behalf of any person, firm, partnership or corporation, or otherwise, divulge or disclose for any purpose whatsoever any Confidential Information that has been obtained by, or disclosed to, him or her as a result of his or her employment relationship with Employer. This subparagraph (2) specifically prohibits the Employee from disclosing to any person, firm, partnership or corporation or otherwise, trade secrets or Confidential Information relating to the business of Employer including, without limiting the generality of the foregoing: (i) names of Employer’s agents, salespersons, customers and clients; (ii) the contractual agreements between Employer and its agents, suppliers, customers, clients, subscribers, representatives, or salespersons; (iii) the financial details, including credit and discount terms, of Employer’s relationship with its agents, suppliers, customers, clients, subscribers, representatives or salespersons; (iv) the names of prospective clients, customers or subscribers and their requirements; (v) information concerning the remuneration paid by Employer to its employees (other than Employee), agents, representatives and similar persons; (vi) technical information relating to the Employer’s products including, but not limited to, engineering drawings, specifications, bills of material, source code and software; (vii) information received from customers which is subject to a confidentiality agreement between the Customer and Employer; or (viii) any other matter which is not readily available to the public relating to the business of Employer. In addition, Employee will not remove or transmit or otherwise obtain, from Employer any records or copies of records in any form pertaining to any of the foregoing matters.
(b) Time Periods of Restriction. It is understood and agreed by the parties that the time periods of restriction, set forth in Section 3(a) of this Agreement, are intended by the parties to be extended by any time period during which Employee violates the terms and conditions of said Section 3(a). Thus, it is intended by the parties that, if after the termination of the Employee’s employment under this Agreement, Employee shall violate any term or condition of Section 3(a), such time periods shall not begin until the date that the last of any such violation by Employee has ceased. Notwithstanding anything, which could be construed to the contrary, however, this Section is not intended to permit or allow Employee to violate any term or condition of said Section 3(a).
(c) Geographical Areas of Restriction. It is understood and agreed by the parties that the restrictions set forth in Section 3(a)(1) and (2) are intended by the parties to cover anywhere in which Employer conducts business including but not limited to the United States of America.
(d) Remedies. Employee agrees that if Employee shall violate any term or condition of this Section 3, Employer shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration, or other benefits that Employee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection with, any such violation, as well as any injunctive relief or other rights or remedies to which Employer is or may be entitled at law, in equity, or under this Agreement.
(e) Survivability. The parties specifically agree that these provisions of Section 3 survive the termination of the employment relationship between Employer and Employee under this Agreement.
(f) Assignment. The Employee acknowledges that the services to be rendered by the Employee under this Agreement are unique and personal. Accordingly, the Employee may not assign or delegate any of the Employee’s duties or obligations under this Agreement.
(g) Reasonableness of Restrictions.
(i) Employee has carefully read and considered the provisions of Sections 3 (a), (b), (c), (d), (e) and (f) and having done so, agrees that the restrictions set forth in those paragraphs and geographical areas of restriction are fair and reasonable and are reasonably required for the protection of the interests of Employer and its officers, directors and other employees.
(ii) In the event that, notwithstanding the foregoing, any of the provisions of this Agreement shall be held to be invalid or unenforceable, the remaining portions thereof shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included herein. In the event that any provision of Section 3 relating to the time periods and/or geographic areas of restriction shall be declared by a court of competent jurisdiction to exceed the maximum time period or areas that such court deems reasonable and enforceable, the time period and/or geographic areas of restriction deemed reasonable and enforceable by the court shall become and thereafter be the maximum time period and/or geographic areas.
4. Agreement Between Employer and Employee as to Inventions and Conflict of Interest.
Employee will promptly disclose and assign to Employer, free from any obligation to Employee, every invention, concept, product, process, apparatus, or design (hereinafter cumulatively referred to as “Invention”) that Employee, individually or jointly, during the term of his or her employment with Employer or during a period of two (2) years after termination of such employment, may invent, discover, conceive, or originate, relating in any way to Employer’s business, or that results from or may be suggested by any work Employee may do for Employer or at Employer’s request.
Employee will, without expense to himself or herself, fully cooperate with Employer in applying for and securing in the name of the Employer, patent or patents with respect to the disclosed Invention in each country in which Employer may desire to secure patent protection. Employee will promptly execute all proper documents presented to him for signature by Employer to enable Employer to secure such patent protection and to transfer legal title therein, together with any patents that may be issued thereon, to Employer.
Employee will, without expense to himself or herself, give such true information and testimony, under oath if requested, as may be requested of him or her by Employer relative to any Inventions that are disclosed to Employer under the terms hereof.
This Agreement does not apply to an Invention for which no equipment, supplies, facility or trade secret information of the Employer was used and which was developed entirely on the Employee’s own time, unless:
(a) the Invention relates directly to the business of the Employer or to the Employer’s actual or demonstrably anticipated research or development; or
(b) the Invention results from any work performed by the Employee for the Employer; and
(c) further, due to the potential for a conflict of interest, Employee shall not engage in, participate with, be employed in or solicit any form of business, services, work or employment from current or perspective customers or vendors of Employer regardless of whether such activities would be in direct competition with the products and services of Employer, without the express written consent of Employer. In the event, Employee is solicited for employment by a current customer of Employer, Employee agrees to notify the Employer’s manager of Human Resources immediately.
5. Acknowledgment. Employee acknowledges and agrees that any rights or claims Employee may have under any prior arrangements have been terminated and released and are not being assumed by Employer.
6. Return of Records and Equipment. On termination of employment, Employee shall deliver all records, notes, data, memorandum, models, and equipment of any nature that are in Employee’s possession or under his or her control and that are the property of Employer or relate to the employment or to the business of Employer.
In addition, Employee will return to Employer, upon termination of employment, all equipment and property in the possession of Employee, in as good a condition as when delivered to Employee, reasonable wear and tear excepted.
7. Effective Waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof.
8. Severability. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, by reason of any rule of law or public policy, such part shall be deemed to be severed from the remainder of this Agreement for the purpose only of the particular legal proceedings in question and all other covenants and provisions of this Agreement shall in every other respect continue in full force and effect.
9. Amendment. This Agreement may be amended or modified only by an agreement in writing signed by Employee and Employer.
10. Entire Agreement. This Agreement is complete, and all promises, representations, understandings, warranties, and agreements with reference to the subject material herein have been fully and finally expressed herein.
11. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed to constitute an original, but all of which together, shall constitute one and the same instrument.
12. Captions. The titles to the paragraphs herein are not considered part of the Agreement.
13. Governing Law. This Agreement shall be construed according to and governed by the laws of the State of Kansas. In the event of a dispute or a matter arising under this Agreement, the parties agree that the proper venue and jurisdiction shall be in either the federal or state courts in Kansas.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first herein above written.
EMPLOYER: PRECO INC.By:______
Ken Arvey
EVP/General Manager CMS
Date: ______/ EMPLOYEE:
______
Signature
______
Print Name
Date: ______
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