HONEYWELL MEMORANDUM
Date: April 28, 2005
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
From: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Subject: Employment Separation Agreement and Release
This Employment Separation Agreement and Release ("Agreement and Release")
confirms our mutual understanding regarding your rights and benefits under the
terms of your employment agreement with ▇▇▇▇▇▇ American Checks Inc. dated
September 19, 1995 (the "Employment Agreement") and the terms of the Final Pay
Policy (the "Policy") incident to your termination of employment with Honeywell
International Inc., Security Printing, Inc., ▇▇▇▇▇▇ American Checks, Inc., and
their predecessor companies, affiliates, parent companies, subsidiaries and
business units, past and present (collectively, the "Company"). By signing this
Agreement and Release, you hereby acknowledge that these benefits are in full
satisfaction of all rights to termination or severance related benefits for
which you may have been eligible or may claim to be eligible under any agreement
or promise, whether written or oral, express or implied, or any Company
sponsored severance plan or program, including, but not limited to, the
Employment Agreement and the Policy.
DATE OF TERMINATION
You have previously been informed of your termination of employment from the
Company. Accordingly, your last day of work ("Last Day of Active Employment")
will be April 28, 2005.
VACATION PAY
Unused current year accrued vacation pay shall be paid out as a lump sum as soon
as practicable after your Last Day of Active Employment.
SEVERANCE PAY
You shall receive an amount equal to twelve (12) months of your base salary
("Base Severance Pay") following your Last Day of Active Employment. Your Base
Severance Pay shall be paid over a twenty-four (24) month period as follows:
(i) your Base Severance Pay shall generally be payable bi-monthly (or
bi-weekly, at the Company's sole discretion) over the twenty-four (24) month
period following your Last Day of Active Employment (the "Salary Continuation
Period");
(ii) notwithstanding (i) above, the first six (6) months of your Base
Severance Pay shall be paid in a lump sum on November 1, 2005.
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Your Salary Continuation Period shall extend from April 29, 2005 through April
28, 2007.
In addition to the Base Severance Pay, you shall receive an amount equal to two
(2) times your average incentive bonus attributable to 2003 and 2004, payable in
a lump sum as soon as practicable following the execution of this Agreement and
Release and the expiration of the seven (7) day revocation period described in
this Agreement and Release ("Lump Sum Severance Pay").
The Base Severance Pay and Lump Sum Severance Pay are hereinafter collectively
referred to as "Severance Pay."
The Company reserves the right in its sole discretion to continue your Severance
Pay and/or certain benefits while you review this Agreement and Release,
provided that this Severance Pay and benefits continuation shall in no event be
construed as a waiver by the Company of the provision in the Final Pay Policy
making benefits contingent on execution of a release of claims in favor of the
Company.
Provided that you have signed and returned this Agreement and Release in the
form provided, in the event of your death after your Last Day of Active
Employment, payment of any remaining Severance Pay owing under this Agreement
and Release will be made to your estate.
All vacation and Severance Pay benefits are subject to federal, state and other
applicable taxes and withholdings.
EMPLOYEE BENEFITS AND ADDITIONAL BENEFITS
You will be entitled to continue to participate in the Company's health plan on
the same basis as you were participating therein immediately prior to your Last
Day of Active Employment. You may continue such health plan participation for
the duration of your Salary Continuation Period or until you become employed by
an unrelated employer, if earlier. In satisfaction of its obligation under the
foregoing paragraph with respect to health care continuation, the Company will
amend its health plan to enable you to continue coverage thereunder for up to
twenty-four (24) months after your Last Day of Active Employment. Consistent
therewith, the Company shall, as soon as practicable, pay you a single sum
amount of $14,343, which amount is intended to reimburse you for the estimated
Company share of health plan premiums for twenty-four (24) months. Any amounts
not reimbursed hereunder for health care continuation shall be borne solely by
you. Any continuation coverage provided hereunder shall be deemed to be coverage
provided pursuant to COBRA, it being the intention of the parties that your
COBRA continuation period shall run concurrently with any continuation coverage
provided under this Agreement and Release.
In full satisfaction of its obligation to provide any additional welfare plan
coverage to you after your Last Day of Active Employment, the Company shall, as
soon as practicable, pay you a single sum amount of $20,000, less applicable
taxes.
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The Company will reimburse you, up to a maximum of $25,000, for amounts you
expend through December 31, 2005 for (i) executive outplacement assistance, or
(ii) legal fees incurred by you from April 28, 2005 to the date you execute this
Agreement and Release, provided such legal fees were incurred in proximate
relation to your termination of employment with the Company.
Pursuant to the terms of your Employment Agreement, you shall be deemed to be
two years older than your actual age for purposes of calculating the benefits
payable to you under the Deferred Compensation Agreement dated March 22, 1990.
In addition, the Company shall assign to you the life insurance policy under
your Deferred Compensation Arrangement. Consistent with your Employment
Agreement, the Company shall recoup 50% of the policy's cash value by deducting
such amount from your Lump Sum Severance Pay.
You shall be entitled to benefits under your Supplemental Employee Retirement
Plan ("SERP") in accordance the terms and conditions of your SERP agreement
dated effective January 1, 1998.
This description of certain employee benefits hereunder is not intended to
supplant the applicable plan documents and summary plan descriptions. If you
have specific questions regarding any employee benefit plan, please consult the
applicable plan document and summary plan description. In the event of any
conflict between this description and the actual employee benefit plan document,
the employee benefit plan document shall control. The Company reserves the
right, in its sole discretion, to amend, modify or terminate its employee
benefit plans at any time and for any reason.
CONSIDERATION FOR THE RELEASE
The Severance Pay (the "Consideration") is something of value that will be
available to you only in return for your signed Agreement and Release in the
form provided to you. If you choose not to sign this Agreement and Release in
the form provided to you, you will not be entitled to the Consideration.
CONTINGENCIES
In order to receive the Consideration under this Agreement and Release, you must
return this signed Agreement and Release in the form provided to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, no later than June 10, 2005.
In the event that before the end of your Salary Continuation Period you (i)
accept a position with the Company as an employee, or (ii) return to work at the
Company as a leased employee, consultant or independent contractor, all
Consideration under this Agreement and Release will terminate as of the date
your employment with the Company resumes. In such event, all Consideration paid
to you before you are reinstated or rehired shall be considered to be valuable
legal consideration to which you were not otherwise entitled and the Release of
Claims and
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Confidentiality provisions of this Agreement and Release shall remain in effect
and fully enforceable.
Subject to the preceding paragraph, your acceptance of a position with another
company will not affect your eligibility for the Consideration under this
Agreement and Release. However, the Company reserves the right to cancel your
Consideration in the event that you engage in activities determined to be
significantly detrimental to the Company's interests, including, without
limitation, (i) recruiting, hiring or soliciting Novar employees for employment
or the performance of services with a competing company during your Salary
Continuation Period, (ii) breach of any obligations under any confidentiality
agreement or intellectual property agreement, (iii) making knowingly false or
misleading statements about the Company or its products, officers or employees
to competitors, customers, potential customers or to current or former employees
of the Company, (iv) commission of any fraud or misappropriation of property,
proprietary information, intellectual property or trade secrets of Novar for
personal gain or for the benefit of another party, (v) engaging in intentional
misconduct substantially damaging to the property or business of Novar,
including, but not limited to the non-compete covenants made in this Agreement
and Release, (vi) holding yourself out as an active Novar employee, and (vii)
materially breaching any of the terms of this Agreement and Release. For
purposes of this Agreement and Release, "Novar" shall be deemed to include all
business units, whether incorporated or unincorporated, of the former Novar plc,
including, but not limited to, the Novar corporate function, the aluminum
extrusion business, the specialty printing business and the intelligent building
systems business.
RELEASE OF CLAIMS BY YOU
In exchange for the Consideration, you do hereby waive and do hereby release,
knowingly and willingly, Honeywell International Inc., Security Printing, Inc.,
▇▇▇▇▇▇ American Checks Inc., their future parent corporations, their predecessor
companies, their past, present and future parent companies, subsidiaries,
affiliates, divisions, business units and all related companies, as well as
their respective successors and assigns and all past, present and future
directors, officers, employees and agents of these entities, personally and as
directors, officers, employees and agents (collectively the "Honeywell Group"),
from any and all claims of any nature whatsoever you have arising out of your
employment and/or the termination of your employment with the Honeywell Group,
known or unknown, including but not limited to any claims you may have under
federal, state or local employment, labor, or anti-discrimination laws, statutes
and case law and specifically claims arising under the federal Age
Discrimination in Employment Act, the Civil Rights Acts of 1866 and 1964, as
amended, the Americans with Disabilities Act, Executive Order 11246, the
Employee Retirement Income Security Act of 1974 ("ERISA"), the Family and
Medical Leave Act, the Rehabilitation Act of 1973, the Fair Labor Standards Act,
the Labor-Management Relations Act, the Equal Pay Act and the Worker Adjustment
Retraining and Notification Act, the Texas Employment Discrimination Law, the
Texas Constitution, Texas common law, and any and all other applicable state,
county or local statutes, ordinances or regulations, including claims for
attorneys' fees; provided, however, that this release does not apply to claims
for benefits under Honeywell Group sponsored benefit plans covered under ERISA
(other than claims for severance and severance related benefits), does not apply
to claims arising out of obligations expressly undertaken in this Agreement and
Release, and does not apply to
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claims arising out of any act or omission occurring after the date you sign this
Agreement and Release. All claims, including contingent claims, for incentive
compensation awards under any Honeywell Group plan or payroll practice, along
with any claims under any state wage and hour laws, are specifically subject to
this release of claims. Any rights to benefits (other than severance benefits)
under Honeywell Group sponsored benefit plans are governed exclusively by the
written plan documents.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU HAVE ACCEPTED THE CONSIDERATION
REFERENCED IN THIS AGREEMENT AND RELEASE IN FULL SATISFACTION OF ALL CLAIMS AND
OBLIGATIONS OF THE HONEYWELL GROUP TO YOU REGARDING ANY MATTER OR INCIDENT UP TO
THE DATE YOU EXECUTE THIS AGREEMENT AND RELEASE (EXCEPT TO THE EXTENT EXPRESSLY
EXCEPTED FROM THE TERMS OF THIS AGREEMENT AND RELEASE) AND YOU AFFIRMATIVELY
INTEND TO BE LEGALLY BOUND THEREBY.
YOU HEREBY AGREE AND ACKNOWLEDGE THAT YOU ARE NOT ENTITLED TO RECEIVE ANY
ADDITIONAL PAYMENTS OR BENEFITS FROM THE HONEYWELL GROUP RELATED TO YOUR
EMPLOYMENT OR TERMINATION OF EMPLOYMENT OTHER THAN AS EXPRESSLY PROVIDED HEREIN.
RELEASE OF CLAIMS BY THE COMPANY
Honeywell International Inc., Security Printing, Inc. and ▇▇▇▇▇▇ American
Checks, Inc., on behalf of themselves and their predecessor companies,
affiliates, parent companies, subsidiaries and business units, past and present,
do hereby settle, compromise, release and discharge all claims of any nature
whatsoever they may have against you arising out of your employment and/or the
termination of your employment with the Honeywell Group, whether known or
unknown; provided, however, that this release does not apply to claims arising
out of obligations expressly undertaken in this Agreement and Release, and does
not apply to claims arising out of any act or omission occurring after the date
you sign this Agreement and Release.
NONDISCLOSURE
You hereby agree to maintain the confidentiality of all Company privileged or
confidential information including, without limitation, attorney-client
privileged communications and attorney work product, unless the Company's law
department expressly authorizes such disclosure. You further agree to notify
the Company promptly of any requests to you for information related to any
pending or potential legal claim or litigation involving the Company, to review
any such request with a designated representative of the Company prior to
disclosing any such information, and to permit a representative of the Company
to be present during any communication of such information.
EXCESS PARACHUTE PAYMENTS
The Company hereby warrants that none of the payments called for under this
Agreement and Release shall constitute an "Excess Parachute Payment" under
Section 280G of the Internal Revenue Code of 1986, and any limitation on the
payment of amounts following a change of control under Section 15(h) of your
Employment Agreement shall be null and void.
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NON-COMPETITION AGREEMENT
In further exchange for the Consideration you receive under this Agreement and
Release, you agree that for the entirety of your Salary Continuation Period you
will not, without the written consent of the Company, directly or indirectly,
engage or be interested in (without any geographic restrictions or limitations),
as owner, partner, manager, shareholder, member, employee, director, officer,
agent, consultant, advisor or otherwise, directly or indirectly, with or without
compensation, any Competing Business Activities or assist any Competing Business
Activities.
For purposes of this Agreement, "Competing Business Activities" shall mean any
company that competes, either directly or indirectly, with ▇▇▇▇▇▇ American
Checks Inc. or any of its direct or indirect affiliates, parents or subsidiaries
in the business of designing, printing, marketing, selling or distributing
checks, check-related or payment-related products or services in the United
States, including, without limitation, the business of providing direct
marketing and business process solutions to financial institutions.
In the event any of the foregoing covenants shall be determined by any court of
competent jurisdiction to be unenforceable by reason of extending for too great
a period of time, over too great a geographical area or by reason of its being
too extensive in any other respect, it shall be interpreted to extend only over
the maximum period of time for which it may be enforceable, over the maximum
geographical area as to which it may be enforceable, and/or to the maximum
extent in all other respects as to which it may be enforceable, all as
determined by such court in such action. The invalidity or unenforceability of
any particular provision of this Non-Competition Agreement paragraph shall not
affect the other provisions hereof, which shall continue in full force and
effect.
You agree that the Company's remedies at law would be inadequate in the event of
a breach or threatened breach of this Non-Competition Agreement paragraph;
accordingly, the Company shall be entitled, in addition to its rights at law, to
seek an injunction or other equitable relief without the need to post a bond.
The terms of this Non-Competition Agreement paragraph are to be read consistent
with the terms of any other non-competition agreements that you have executed
with the Company; provided, however, to the extent there is a conflict
between/among such agreements, such agreements shall be construed as providing
the broadest possible protections to the Company, even if such construction
would require provisions of more than one such agreement to be given effect.
CONFIDENTIALITY
Subject to the covenants in Exhibit A, you agree not to disclose or cause any
other person to disclose to third parties, including employees of the Company,
the terms of this Agreement and Release; provided, however, that you have the
right to disclose the terms of this Agreement and Release to your spouse, your
financial/tax advisor and your attorney and in response to a governmental
inquiry, including a governmental tax audit or a judicial subpoena. You
understand that your breach of this confidentiality provision, to the extent the
Company can
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show monetary harm, shall excuse the Company from performing further under this
Agreement and Release up to the amount of such monetary harm, and the Company
shall likewise be entitled to repayment of the Consideration provided hereunder
to the extent of any such monetary harm suffered by the Company as a result of
your breach of the Confidentiality provisions contained herein. You agree that
neither this Agreement and Release nor any version of this Agreement and Release
shall be admissible in any forum as evidence against the Company or you except
in a proceeding to enforce this Agreement and Release. This Agreement and
Release does not constitute an admission of wrongdoing by either party.
You acknowledge and agree that any agreements signed by you relating to
intellectual property and confidential information acquired by you as a result
of your employment with the Company remain in full force and effect and place
legal obligations upon you that continue beyond your employment with the
Company. In further exchange for the Consideration you receive under this
Agreement and Release, you agree to abide by the confidentiality and
intellectual property covenants set forth in Exhibit A attached hereto with
respect to knowledge acquired during your employment with the Company. You
hereby agree that the covenants appearing at Exhibit A are a material part of
this Agreement and Release.
COMPLIANCE WITH ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT
Nothing in this Agreement and Release (or any exhibit or attachment thereto)
shall be construed to prohibit you from reporting any accounting, internal
accounting control, or auditing matter to any federal regulatory agency, any
federal law enforcement agency, or any Member of Congress or any committee or
subcommittee of Congress. Nor shall this Agreement and Release (or any exhibit
or attachment thereto) be construed to prohibit you from engaging in any
activity protected by 18 U.S.C. Section 1514A.
NON-DISPARAGEMENT
You agree that you will not engage in any conduct that is injurious to the
Company's reputation and interest, including, but not limited to, publicly
disparaging (or inducing others to publicly disparage) the Company. Nothing
contained herein shall be construed as prohibiting you from providing truthful
information regarding the Company to any government, regulatory or
self-regulatory agency.
COVENANT NOT TO SUE
You hereby covenant and agree not to file, commence or initiate any suits,
demands or causes of action against the Company based upon or relating to any of
the claims released and forever discharged pursuant to Release of Claims By You
paragraph of this Agreement and Release. If you breach this covenant not to sue,
you hereby agree to pay all the reasonable costs and attorneys' fees actually
incurred by the Company in defending against such claims, demands or causes of
action, together with such further damages as may result, directly or
indirectly, from such breach.
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SEVERABILITY; ENTIRE AGREEMENT; NO ORAL MODIFICATIONS; NO WAIVERS
Should any of the provisions of this Agreement and Release (other than the
Release of Claims By You provision) be determined to be invalid by a court of
competent jurisdiction, the parties agree that this shall not affect the
enforceability of the other provisions of the Agreement and Release. In such
case, the parties shall renegotiate the invalidated provision(s) in good faith
to effectuate its/their purpose and to conform the provision(s) to applicable
law. This Agreement and Release constitutes a single integrated contract
expressing the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous oral and written
agreements and discussions with respect to the subject matter hereof. This
Agreement and Release may be amended or modified only by an agreement in
writing. The failure by the Company to declare a breach or otherwise to assert
its rights under this Agreement and Release shall not be construed as a waiver
of any right the Company has under this Agreement and Release.
CHOICE OF LAW
This Agreement and Release shall be governed by, and construed in accordance
with, the laws of the State of Texas, without reference to principles of
conflict of laws. The parties agree that any actions brought to enforce the
terms of this Agreement and Release shall be brought in the United States
District Court for the Western District of Texas, San Antonio Division.
SECTION 409A COMPLIANCE
Notwithstanding anything contained herein to the contrary, the parties hereto
shall cooperate to the extent necessary to comply with the provisions of Section
409A of the Internal Revenue Code of 1986, as amended.
ACKNOWLEDGMENTS AND CERTIFICATIONS
YOU ACKNOWLEDGE AND CERTIFY THAT YOU:
(A) HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND RELEASE
AND DO NOT RELY ON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT
SET FORTH IN THIS AGREEMENT AND RELEASE;
(B) HAVE HAD A REASONABLE PERIOD OF TIME TO CONSIDER THIS AGREEMENT AND
RELEASE;
(C) ARE SIGNING THIS AGREEMENT AND RELEASE KNOWINGLY AND VOLUNTARILY;
(D) HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS
AGREEMENT AND RELEASE;
(E) HAVE THE RIGHT TO CONSIDER THE TERMS OF THIS AGREEMENT AND RELEASE FOR 21
DAYS AND IF YOU TAKE FEWER THAN 21 DAYS TO REVIEW THIS AGREEMENT AND
RELEASE, YOU HEREBY WAIVE ANY AND ALL RIGHTS TO THE BALANCE OF THE 21 DAY
REVIEW PERIOD; AND
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(F) HAVE THE RIGHT TO REVOKE THIS AGREEMENT AND RELEASE WITHIN 7 DAYS AFTER
SIGNING IT, BY PROVIDING WRITTEN NOTICE OF REVOCATION TO ME. IF YOU REVOKE
THIS AGREEMENT AND RELEASE DURING THIS 7-DAY PERIOD, IT BECOMES NULL AND
VOID IN ITS ENTIRETY.
THIS IS A LEGALLY ENFORCEABLE DOCUMENT.
Dated: 5-13-05 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
HONEYWELL INTERNATIONAL INC.
Dated: 5/17/05 By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SENIOR VICE PRESIDENT
HUMAN RESOURCES AND COMMUNICATIONS
▇▇▇▇▇▇ AMERICAN CHECKS INC.
Dated: 5/18/05 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PRESIDENT AND CEO
SECURITY PRINTING, INC.
Dated: 5/16/05 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------- ----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
PRESIDENT AND CEO
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EXHIBIT A
AGREEMENT RELATING TO HONEYWELL'S TRADE SECRETS,
PROPRIETARY AND CONFIDENTIAL INFORMATION
IN CONSIDERATION OF THE RECEIPT OF MY SEVERANCE PAY, I UNDERSTAND AND AGREE
THAT:
1. RECORDS OF INVENTIONS. I have kept complete and current written records of
all Inventions I Made during the period of time I was employed by Honeywell and
promptly disclosed all such Inventions in writing to Honeywell for the purpose
of adequately determining Honeywell's rights in each such Invention. I will
supplement any such disclosures to the extent Honeywell may request that I do
so. If I have any doubt as to whether or not to disclose an Invention to
Honeywell, I will disclose it.
2. DISCLOSURE OF INVENTIONS AFTER TERMINATION. I will promptly and completely
disclose in writing to Honeywell's Law Department all Inventions that I Make
during the one year immediately following the end of my employment by Honeywell
which relate either to my work assignment at Honeywell or to Honeywell's Trade
Secrets, Proprietary and Confidential Information for the purpose of determining
Honeywell's rights in each such Invention. I will not file any patent
application relating to any such Invention without the prior written consent of
Honeywell's Law Department. If I do not prove that I Made the Invention entirely
after leaving Honeywell's employment, the Invention is presumed to have been
Made during the period of time I was employed by Honeywell. I acknowledge that
the conditions of this paragraph are no greater than is necessary for protecting
Honeywell's interests in Honeywell's Trade Secrets, Proprietary and Confidential
Information and in Inventions to which it is rightfully entitled.
3. OWNERSHIP OF INVENTIONS. Each and every Invention I Made during the period
of time I was employed by Honeywell (a) which relates directly to the business
of Honeywell or to Honeywell's actual or demonstrably anticipated research or
development, or (b) which resulted from any work I performed for Honeywell is
the sole and exclusive property of Honeywell and I agree to assign and hereby
assign my entire right, title and interest in each such Invention to Honeywell.
Each Invention I Made during the period of time I was employed by Honeywell for
which no equipment, supplies, facility or trade secret information of Honeywell
was used and which was developed entirely on my own time is my property, unless
(a) the Invention relates directly to the business of Honeywell or to
Honeywell's actual or demonstrably anticipated research or development, or (b)
the Invention results from any work performed by me for Honeywell. If I assert
any property right in an Invention I Made during the period of time I was
employed by Honeywell, I will promptly notify Honeywell's Law Department in
writing.
4. COOPERATION WITH HONEYWELL. I will assist and fully cooperate with
Honeywell in obtaining, maintaining, and asserting the fullest measure of legal
protection, which Honeywell elects to obtain, maintain or assert for Inventions
in which it has a property right. I will also assist and fully cooperate with
Honeywell in defending Honeywell against claims of violation of the intellectual
property rights of others. I will be paid my reasonable expenses in assisting,
and cooperating with, Honeywell. I will execute any lawful document Honeywell
requests me to
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execute relating to obtaining, maintaining or asserting legal protection for any
said Invention or in defending against claims of the violation of the
intellectual property rights of others (including, but not limited to, executing
applications, assignments, oaths, declarations, and affidavits) and I will make
myself available for interviews, depositions and testimony. In the event that
Honeywell is unable, after reasonable effort, to secure my signature on any
document or documents needed to apply for or prosecute any patent, copyright, or
other right or protection relating to an Invention, for any other reason
whatsoever, I hereby irrevocably designate and appoint Honeywell and its duly
authorized officers and agents as my agent and attorney-in-fact, to act for and
on my behalf to execute and file any such application or applications, and to do
all other lawfully permitted acts to further the prosecution and issuance of
patents, copyrights, or similar protections thereon with the same legal force
and effect as if executed by me.
5. PREEMPLOYMENT INVENTIONS. On Schedule A, which is an integral part of this
Exhibit A, I have completely identified (without disclosing any trade secret,
proprietary or other confidential information) every Invention I Made before my
employment by Honeywell in which I have any ownership interest and which is not
now the subject master of an issued patent or a printed publication. If I become
aware of any projected or actual use of any such Invention by Honeywell, I will
promptly notify Honeywell in writing of said use. Except as to the Inventions
listed on Schedule A or those which are now the subject matter of an issued
patent or a printed publication, I will not assert any rights against Honeywell
with respect to any Invention Made before my employment by Honeywell.
6. HONEYWELL'S TRADE SECRETS, PROPRIETARY AND CONFIDENTIAL INFORMATION. I
will never, directly or indirectly, use Honeywell's Trade Secrets, Proprietary
and Confidential Information (as hereinafter defined) except in furthering
Honeywell's business nor will I disclose or disseminate Honeywell's Trade
Secrets, Proprietary and Confidential Information to anyone who is not an
officer, director, employee, attorney or authorized agent of Honeywell without
the prior written consent of Honeywell's Law Department unless the specific item
of Honeywell's Trade Secrets, Proprietary and Confidential Information: (a) is
now in, or hereafter becomes (through no breach of these covenants) general
public knowledge, or (b) prior to my disclosure, dissemination or use, was
lawfully acquired by me without any obligation to retain the information in
confidence. In this connection, I will not publish any of Honeywell's Trade
Secrets, Proprietary and Confidential Information for dissemination outside
Honeywell or file any patent application relating to any Invention I Make during
the period of time I was employed by Honeywell without the prior written
approval of Honeywell's Law Department. I will execute any agreement relating to
the protection of Honeywell's Trade Secrets, Proprietary and Confidential
Information or such information of any third party whose intellectual property
Honeywell is under a legal obligation to protect if Honeywell requests that I do
so. I will not engage without the prior written consent of Honeywell's Law
Department, either during the period of time I was employed by Honeywell or for
a period of two years after that employment, in any activity or employment in
the faithful performance of which it could be reasonably anticipated that I
would use or disclose Honeywell's Trade Secrets, Proprietary and Confidential
Information. All documents and tangible things embodying or containing
Honeywell's Trade Secrets, Proprietary and Confidential Information are
Honeywell's exclusive property. I had access to them solely for the performance
of my duties during my employment with Honeywell. I will protect the
confidentiality of their content and comply with all security policies and
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execute relating to obtaining, maintaining or asserting legal protection for any
said Invention or procedures that may, from time to time, have been established
by Honeywell. I have returned all of them, along with all copies, facsimiles and
specimens of them and any other tangible forms of Honeywell's Trade Secrets,
Proprietary and Confidential Information in my possession, custody or control to
Honeywell before leaving the employment of Honeywell.
I understand that I have the right to use or practice any skill or expertise
generally associated with my employment but not special or unique to Honeywell,
but I do not have the right to use, practice or disclose Honeywell's Trade
Secrets, Proprietary and Confidential information for my own benefit or for the
benefit of any third party.
7. TRADE SECRETS, PROPRIETARY OR CONFIDENTIAL INFORMATION FROM PREVIOUS
EMPLOYMENT. I certify that I have not disclosed or used, during my employment by
Honeywell, any trade secrets, proprietary or confidential information that I
acquired as a result of any previous employment or under a contractual
obligation of confidentiality before my employment by Honeywell. I understand
that Honeywell has no interest in, and will not accept disclosure by me of, any
confidential information that belongs to a third party.
8. NON-SOLICITATION OF HONEYWELL EMPLOYEES. I acknowledge that Honeywell has
invested significant time and money to recruit and retain its employees.
Therefore, recognizing that in the course of my employment I have obtained
valuable information about Honeywell employees, their respective talents and
areas of expertise, I agree that for a period of two (2) years following my
termination of employment from Honeywell for any reason, I will not, directly or
indirectly, (i) cause any individual previously employed by Honeywell to be
employed by any person or entity other than Honeywell unless such individual has
not been employed by Honeywell for at least 12 months, (ii) participate in any
manner in the employment of any such individual by any person or entity other
than Honeywell unless such individual has not been employed by Honeywell for at
least 12 months, or (iii) in any way induce or attempt to induce such individual
to leave the employment of Honeywell.
9. NON-SOLICITATION OF HONEYWELL CUSTOMERS. I acknowledge that Honeywell has
invested significant time and money to develop valuable, continuing
relationships with existing and prospective clients and customers. Therefore,
recognizing that in the course of my employment I have obtained valuable
information about Honeywell customers and their requirements, I agree that, for
a period of two years following my termination of employment from Honeywell for
any reason, I will not solicit or attempt to solicit, directly or indirectly,
for my own account or for others, any existing clients or customers of Honeywell
with whom I had contact or of whom I became aware while employed by Honeywell
during the two year period prior to my termination, or any prospective clients
or customers of Honeywell with whom I had contact and with whom Honeywell took
significant steps to do business during the two year period prior to my
termination, for the purpose of inducing such clients or customers to cease
doing business with Honeywell or to purchase, lease or utilize products or
services which are competitive with, are similar to, or which may be used as
substitutes for any products or services offered by Honeywell.
10. NOTICE TO FUTURE EMPLOYERS. For the period of two years immediately
following the end of my employment by Honeywell, I will inform each new
employer, prior to accepting employment, of the existence of this Exhibit A and
provide that employer with a copy of it.
Page 12
Honeywell has the right to inform any future employer of the existence of this
Exhibit A and to provide any future employers with a copy of it.
11. COPYRIGHT. As to all works prepared by me which were: (i) within the scope
of my employment; or (ii) based upon information I acquired from Honeywell which
is not normally made available to the public; or (iii) commissioned by
Honeywell, but not within my scope of employment, I hereby agree to:
(a) submit to Honeywell's Law Department for approval prior to
publication or oral dissemination;
(b) assign all right, title and interest in and to the copyright in all
such works to Honeywell; and
(c) waive any claim of moral rights, author's rights, droit moral, or
any equivalent rights to the extent necessary or permitted by law.
I hereby release and allow Honeywell to use, for any lawful purpose, any voice
reproduction, photograph, or other video likeness of me made in the course of my
employment.
12. IDENTITY OF FUTURE EMPLOYER. Upon termination of employment, whether
termination be voluntary or involuntary, if reasonably requested by Honeywell, I
shall advise Honeywell of the name and address of my intended future employer.
13. SUCCESSORS; BINDING AGREEMENT. This Exhibit A binds my heirs, executors,
administrators, legal representatives and assigns and inures to the benefit of
Honeywell and its successors and assigns. Only a written amendment executed by
both Honeywell and myself can modify this Exhibit A.
14. SURVIVAL OF COVENANTS. These obligations will continue after, and survive,
the end of my employment by Honeywell.
15. REMEDIES. I acknowledge that a remedy at law for any breach or threatened
breach of the provisions of this Exhibit A would be inadequate and therefore
agree that Honeywell shall be entitled to injunctive relief in addition to any
other available rights and remedies in case of any such breach or threatened
breach. In the event a court determines that I have breached or threatened to
breach the covenants in this Exhibit A, I agree to reimburse Honeywell for all
attorneys' fees and costs incurred in enforcing the terms hereof. Nothing
contained herein shall be construed as prohibiting Honeywell from pursuing any
other remedies available for any such breach or threatened breach against me or
my then-current employer which may include, but shall not be limited to,
contract damages, lost profits and punitive damages.
16. VALIDITY. It is the desire and intent of the parties hereto that the
provisions of this Exhibit A shall be enforced to the fullest extent
permissible. Accordingly, if any particular provision of this Exhibit A shall be
adjudicated to be invalid or unenforceable, the court may modify or sever such
provision, with such modification or deletion to apply only with respect to the
operation of
Page 13
such provision in the particular jurisdiction in which such adjudication is
made. In addition, if any one or more of the provisions contained in this
Exhibit A shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear. The remaining provisions of this Exhibit
A shall remain in full force and effect.
17. GOVERNING LAW. The terms of this Exhibit A shall be governed by and
construed in accordance with the laws of the State of Texas without regard to
principles of conflicts of law.
18. DESCRIPTIVE HEADINGS. The headings and captions in this Exhibit A are
inserted for convenience only and shall not in any way affect the meaning or
construction of its terms.
19. DEFINITIONS.
(a) "Honeywell" collectively identifies Honeywell International Inc. (a
Delaware corporation having a place of business at Columbia Road and
Park Avenue, ▇▇▇▇▇▇ Township, ▇▇▇▇▇▇ County, New Jersey), its
predecessors, successors and its past, present and future operating
companies, divisions, subsidiaries, affiliates and business units,
including businesses acquired by the purchase of assets or stock,
merger or otherwise.
(b) "Trade Secrets, Proprietary and Confidential Information" means
information which is not generally known in the industries in which
Honeywell is engaged, which may be disclosed to me or which I may
learn, observe, discover or otherwise acquire during, or as a result
of, my employment by Honeywell, and which includes, without
limitation, any information, whether patentable, patented or not,
relating to any existing or contemplated products, inventions,
services, technology, concepts, designs, patterns, processes,
compounds, formulae, programs, devices, tools, compilations of
information, methods, techniques, and including information relating
to any research, development, manufacture, purchasing, engineering,
know-how, business plans, sales or market methods, methods of doing
business, customer lists, customer usages or requirements, or
supplier information, which is owned or licensed by Honeywell or
held by Honeywell in confidence.
(c) "Invention" includes not only inventions (whether or not
patentable), but also innovations, improvements, discoveries, ideas
and all other forms of intellectual property (including, but not
limited to, copyright works and mask works), whether or not any of
the foregoing constitutes trade secret or other confidential
information.
(d) "Make" or "Made", when used in relation to Inventions, includes any
one or any combination of (i) conception, (ii) reduction to practice
or (iii) development of an Invention, and is applicable without
regard to whether the individual is a sole or joint inventor.
Page 14
SCHEDULE A
INVENTIONS I MADE BEFORE THE TERM OF MY EMPLOYMENT BY HONEYWELL IN WHICH I HAVE
AN OWNERSHIP INTEREST WHICH ARE NOT THE SUBJECT MATTER OF ISSUED PATENTS OR
PRINTED PUBLICATIONS:
(If there are none, please enter the word "NONE")
NOTE: Please describe each such Invention without disclosing confidential
information.
NONE
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