Performance Objective | Minimum | Target | Maximum |
TSR Percentile Performance | 25th Percentile | 50th Percentile | 75th Percentile |
Performance Shares Earned | 50% | 100% | 150% |
a. | as a result of death |
b. | as a result of total and permanent disability, as determined by the Committee in its sole and complete discretion, or |
c. | with respect to a Grantee who has been employed by the Company for at least eight years, as a result of retirement on or after Grantee attaining age 60, |
1. | Incorporation or recitals. The above recitals are incorporated herein as part of the Agreement. |
2. | Definitions. Unless otherwise defined herein, the capitalized terms set forth in this Agreement shall have the definitions as set forth in Attachment A. Attachment A is incorporated into and is part of this Agreement. |
3. | Duty of Loyalty. Grantee acknowledges that Grantee is a key employee of the Company and owes the Company a fiduciary duty of loyalty. During employment with Company, Grantee shall owe Company an undivided duty of loyalty, and shall take no action adverse to that duty of loyalty. Grantee’s duty of loyalty to Company includes but is not limited to a duty to promptly disclose to Company any information that might cause Company to take or refrain from taking any action, or which otherwise might cause Company to alter its behavior. Without limiting the generality of the foregoing, Grantee shall promptly notify Company at any time that Grantee decides to terminate employment with Company or enter into competition with Company, as Company may decide at such time to limit, suspend, or terminate Grantee’s employment or access to Company’s Confidential Information, Trade Secrets, and/or customer relationships. Grantee’s privilege to access and use Company’s computers, and to access and use Company’s electronically stored information including Company’s Confidential Information and Trade Secrets, are revoked the moment Grantee takes any action adverse to Grantee’s duty of loyalty to Company. |
4. | Nondisclosure of Third Party Confidential Information. During Grantee’s employment with Company and after the Termination Date, Grantee shall not use or disclose Third Party Confidential Information for as long as the relevant third party has required Company to maintain its confidentiality, or for so long as required by applicable law, whichever period is longer. |
5. | Non-disclosure of Trade Secrets. During employment and after the Termination Date, Grantee shall not use or disclose Company’s Trade Secrets so long as they remain Trade Secrets. Nothing in this Agreement shall limit either Grantee’s statutory or other duties not to use or disclose Company’s Trade Secrets, or Company’s remedies in the event Grantee uses or discloses Company’s Trade Secrets. |
6. | Obligations Not to Disclose or Use Confidential Information. Except as set forth herein or as expressly authorized in writing on behalf of Company, Grantee agrees that while Grantee is employed by Company and during the twelve (12) month period commencing at the Termination Date, Grantee will not use or disclose (except in discharging Grantee’s job duties with Company) any Confidential Information, whether such Confidential Information is in Grantee’s memory or it is set forth electronically, in writing or other form. This prohibition does not prohibit Grantee’s disclosure of information after it ceases to meet the definition of “Confidential Information,” or Grantee’s use of general skills and know-how acquired during and prior to employment by Company, so long as such use does not |
7. | Return of Property; No Copying or Transfer of Documents. All equipment, books, records, papers, notes, catalogs, compilations of information, data bases, correspondence, recordings, stored data (including but not limited to data or files that exist on any personal computer or other electronic storage device), software, and any physical items, including copies and duplicates, that Grantee generates or develops or which come into Grantee’s possession or control, which relate directly or indirectly to, or are a part of Company’s (or its customers’) business matters, whether of a public nature or not (collectively “Company Records”), shall be and remain the property of Company, and Grantee shall deliver all such materials and items, and any and all copies of them, to Company upon termination of employment. During employment or after Termination Date, Grantee will not copy, duplicate, or otherwise reproduce, or permit copying, duplicating, or reproduction of Company Records without the express written consent of Company, or, as a part of Grantee’s duties performed hereunder for the benefit of Company. Grantee expressly covenants and warrants, upon termination of employment for any reason (or no reason), that Grantee shall promptly deliver to Company any and all originals and copies of Company Records in Grantee’s possession, custody, or control, and that Grantee shall not make, retain, or transfer to any third party any copies thereof. In the event any Confidential Information or Trade Secrets are stored or otherwise kept in or on a computer hard drive or other storage device owned by or otherwise in the possession or control of Grantee (each individually an "Grantee Storage Device"), upon termination of employment Grantee will present every such Grantee Storage Device to Company for inspection and removal of all information regarding Company or its customers (including but not limited to Confidential Information or Trade Secrets) that is stored on the Grantee Storage Device. This Paragraph shall not bar Grantee from retaining Grantee’s own payroll, retirement, insurance, tax, and other personnel documents related to Company. |
8. | Covenants Barring Certain Unfair Activities. Grantee shall abide by such restrictions in Attachment B hereto. Attachment B is incorporated into and is part of this Agreement. |
(a) | Non-solicitation of Management Employees. For twelve (12) months following the Termination Date, Grantee shall not, without the prior written consent of Company, encourage, cause, or solicit, or assist others in encouraging, causing, or soliciting, a Management Employee to terminate their employment with Company to provide Key Services in competition with Company, unless such Management Employee has already ceased employment with Company. |
(b) | Non-solicitation of Key Employees. For twelve (12) months following the Termination Date, Grantee shall not, without the prior written consent of Company, encourage, cause, or solicit, or assist others in encouraging, causing, or soliciting, a Key Employee to terminate their employment with Company to provide Key Services in competition with Company, unless such Key Employee has already ceased employment with Company. |
(c) | Non-solicitation of Supervised Employees. For twelve (12) months following the Termination Date, Grantee shall not, without the prior written consent of Company, encourage, cause, or solicit, or assist others in encouraging, causing, or soliciting, a Supervised Employee to terminate their employment with Company to provide Key Services in competition with Company, unless such Supervised Employee has already ceased employment with Company. |
10. | Proprietary Creations. All Proprietary Creations are the sole and exclusive property of the Company whether patentable or registrable or not, and Grantee assigns all of Grantee’s rights, title, and interest in same to the Company. Further, all Proprietary Creations which are copyrightable shall be considered “work(s) made for hire” as that term is defined by U.S. Copyright Law. If for any reason a U.S. Court of competent jurisdiction determines such Proprietary Creations not to be works made for hire, Grantee will assign all rights, title, and interest in such works to the Company and, to the extent permitted by law, Grantee hereby assigns all of Grantee’s rights, title, and interest in such Proprietary Creations to the Company. Grantee will promptly disclose all Proprietary Creations to the Company and, if requested to do so, provide the Company a written description or copy thereof. Grantee is not required to assign rights to any invention for which no equipment, supplies, facility, or trade secret information of the Company was |
11. | Remedies. In addition to other remedies provided by law or equity, the Parties agree that in the event of any breach or threatened breach of this Agreement, Company may obtain interim or other injunctive relief, in addition to any other remedies available, without the need to post a bond. Grantee further agrees that any breach of this Agreement would result in irreparable harm to Company entitling Company to an injunction prohibiting further breaches of these Paragraphs. The Parties agree that in the event Grantee breaches this Agreement, Grantee shall pay the Company’s reasonable attorney’s fees and costs arising out of any litigation resulting from Grantee’s breach. |
12. | Assignment. Company may assign its rights under the Agreement to any assignee or successor. Such assignment shall not require the authorization of Grantee. Grantee may not assign or delegate Grantee’s rights or obligations under this Agreement. |
13. | Entire Agreement. This Agreement constitutes the entire agreement and understanding between Company and Grantee concerning the subject matter addressed herein and supersedes and extinguishes any and all other or previous discussions, agreements, or understandings between the Parties regarding the subject matter herein. Notwithstanding this Paragraph 13, this Agreement shall not serve to supersede or extinguish other agreements between Grantee and Company (and their subsidiary or affiliated companies and successors) containing similar provisions and restrictions where such agreements were entered into with Grantee as a term or condition of employment. |
14. | Waiver. The waiver by any Party of the breach of any covenant or provision in this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. |
15. | Invalidity of any Provision. The provisions of this Agreement are severable, it being the intention of the Parties that should any provision hereof be invalid or unenforceable, such invalidity or unenforceability of any provision shall not affect the remaining provisions hereof, but the same shall remain in full force and effect to the fullest extent permitted by law as if such invalid or unenforceable provision were omitted. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, Company and Grantee agree that such provision is to be reformed to the extent necessary for the provision to be valid and enforceable to the fullest and broadest extent permitted by applicable law, without invalidating the remainder of this Agreement |
16. | Applicable Law and Venue. The Parties agree that this Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin. Any dispute between the Parties arising out of or related to the terms of this Agreement shall be heard only by the Circuit Court of Waukesha County, Wisconsin, or by the United States District Court for the Eastern District of Wisconsin; and the Parties hereby consent to these courts as the exclusive venues for resolving any such disputes. |
17. | Headings. Headings in this Agreement are for informational purposes only and shall not be used to construe the intent of this Agreement. |
18. | Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. |
19. | Reserved Rights. Nothing in this Agreement shall serve to limit or restrict Grantee’s right to the following: |
(a) | Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (b) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. |
(b) | Use Of Trade Secret Information In Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order. |
20. | Reasonableness of Restrictions. GRANTEE HAS READ THIS AGREEMENT AND AGREES THAT THE RESTRICTIONS ON GRANTEE’S ACTIVITIES OUTLINED IN THIS AGREEMENT ARE REASONABLE AND NECESSARY TO PROTECT COMPANY’S LEGITIMATE BUSINESS INTERESTS, THAT THE CONSIDERATION PROVIDED BY COMPANY IS FAIR AND REASONABLE, AND FURTHER AGREES THAT GIVEN THE IMPORTANCE TO COMPANY OF ITS CONFIDENTIAL INFORMATION, TRADE SECRETS, AND CUSTOMER RELATIONSHIPS, THE POST-EMPLOYMENT RESTRICTIONS ON GRANTEE’S ACTIVITIES ARE LIKEWISE FAIR AND REASONABLE. GRANTEE AGREES THAT THE GEOGRAPHIC RESTRICTIONS ON GRANTEE’S ACTIVITIES ARE REASONABLE. |
(a) | “Competing Product” means any product or service which is sold or provided in competition with a product or service produced, designed, sold or provided by Grantee, either individually or as part of a team, or by one or more employees or Company business units managed, supervised or directed by Grantee or receiving executive or management support from Grantee during the twelve (12) months immediately preceding the Termination Date. |
(b) | “Confidential Information” means information (to the extent it is not a Trade Secret), whether oral, written, recorded magnetically or electronically, or otherwise stored, and whether originated by the Grantee or otherwise coming into the possession or knowledge of the Grantee, which is possessed by or developed for Company, and which relates to Company’s existing or potential business, which information is not reasonably ascertainable by Company’s competitors or by the general public through lawful means, and which information Company treats as confidential, including but not limited to information regarding Company’s business affairs, PSA Agreements, strategies, products, finances, costs, margins, computer programs, research, customers, purchasing, marketing, and other information. |
(c) | “Current Pending Customer” means a person or entity concerning which Company is actively preparing a business proposal to a prospective customer of the Company as of the Termination Date, or for which Company has a pending proposal to provide goods or services as a Company to a prospect customer as of the Termination Date. However, the term “Current Pending Customer” is limited to persons or entities that Grantee interacts with on behalf of the Company or concerning which Grantee learns, creates or reviews Confidential Information or Trade Secrets on behalf of the Company in the three (3) month period immediately preceding the Grantee’s end of employment with the Company. |
(d) | “Key Employee” means any person who at the Termination Date is employed or engaged by Company, and with whom Grantee has had material contact in the course of employment during the twelve (12) months immediately preceding the Termination Date, and such person is in possession of Confidential Information and/or Trade Secrets. |
(e) | “Key Services” means services of the type performed by a Management Employee, Key Employee or Supervised Employee for the Company during the final twelve (12) months preceding the Termination Date, but shall not include clerical, menial, or manual labor. |
(f) | “Management Employee” means any person who at the Termination Date is employed or engaged by Company, and with whom Grantee has had material contact in the course of employment during the twelve (12) months immediately preceding the Termination Date and such person is a manager, officer, director, or executive of Company. |
(g) | “Proprietary Creations” means all inventions, discoveries, designs, improvements, creations, and works conceived, authored, or developed by Grantee, either individually or with others, any time during Grantee’s employment with the Company that: (1) relate to the Company’s current or contemplated business or activities; (2) relate to the Company’s actual or demonstrably anticipated research or development; (3) result from any work performed by Grantee for the Company; (4) involve the use of Company equipment, supplies, facilities, Confidential Information or Trade Secrets; (5) result from or are suggested by any work done by the Company or at the Company’s request, or any projects specifically assigned to Grantee; or (6) result from Grantee’s access to any Company memoranda, notes, records, drawings, sketches, models, maps, customer lists, research results, data, formulae, specifications, inventions, processes, equipment Confidential Information, Trade Secrets or other materials. |
(h) | “Referral Client” means a person or entity that does not directly purchase products or services from Company, but which has the ability to effectively specify or recommend the purchase of products or services from Company or its competitors to end customers. The term Referral Client is limited to persons or entities to or through which Grantee, one or more individuals or Company business units supervised, managed or directed by Grantee, markets or sells Company products or services during the twelve (12) month period immediately preceding the Termination Date. The term Referral Client is further restricted to persons or entities which have specified or recommended the purchase of in excess of fifty thousand dollars (US $50,000) worth of products or services |
(i) | “Restricted Customer” means a customer of Company to which Grantee, or one or more individuals or Company business units supervised, managed, or directed by Grantee, sells or provides products or services on behalf of Company during the twelve (12) month period immediately preceding the Termination Date. The term Restricted Customer is limited to Company customers that purchase or receive in excess of fifty thousand dollars (US $50,000) worth of products or services from Company during the twelve (12) month period immediately preceding the Termination Date. |
(j) | “Restricted Territory” means Territories in which, during the twelve (12) month period immediately preceding the Termination Date, Grantee, or one or more other Company employees or Company business units supervised, managed or directed by or receiving management or executive support from Grantee: (i) provides products or services on behalf of the Company; or (ii) sells or solicits the sale of products or services on behalf of the Company. Notwithstanding the foregoing, the term Restricted Territory is limited to Territories in which Company sells or provides in excess of one hundred thousand dollars (US $100,000) in the aggregate worth of products or services in the twelve (12) month period immediately preceding the Termination Date. |
(k) | “Sales Territory” means Territories in which, during the twelve (12) month period immediately preceding the Termination Date, the Company: (i) sells products or services designed, developed, tested, or produced by Grantee (either individually or in collaboration with other Company employees) or by one or more other Company employees or business units managed or directed by or receiving executive or management support from Grantee; or (ii) provides products or services designed, developed, tested or produced by Grantee (either individually or in collaboration with other Company employees) or by one or more other Company employees or business units managed or directed by or receiving executive or management support from Grantee. Notwithstanding the foregoing, the term Sales Territory is limited to Territories in which Company sells or provides in excess of one hundred thousand dollars (US $100,000) in the aggregate worth of products or services in the twelve (12) month period immediately preceding the Termination Date. |
(l) | “Services” means services of the type performed for Company by Grantee or one or more Company employees managed, supervised, or directed by Grantee during the final twelve (12) months preceding the Termination Date, but shall not include clerical, menial, or manual labor. |
(m) | “Strategic Customer” means a customer of Company that purchases or receives a product or service from Company during the twelve (12) month period immediately preceding the Termination Date, but is limited to customers concerning which Grantee learns, creates, or reviews Confidential Information or Trade Secrets on behalf of Company during the twelve (12) month period immediately preceding the Termination Date. The term Strategic Customer is limited to Company customers that purchase or receive in excess of fifty thousand dollars (US $50,000) worth of products or services from Company during the twelve (12) month period immediately preceding the Termination Date. |
(n) | “Supervised Employee” means any person who at the Termination Date is employed or engaged by Company, and with whom Grantee has had material contact in the course of employment during the twelve (12) months immediately preceding the Termination Date, and such person was directly managed by or reported to Grantee during the last 12 months prior to the Termination Date. |
(o) | “Termination Date” means the last date that Grantee serves as an employee of the Company. |
(p) | “Third Party Confidential Information” means information received by Company from others that Company has an obligation to treat as confidential. |
(q) | “Trade Secret” means a Trade Secret as that term is defined under applicable state or federal law. |
(r) | “Territory” means a county within the United States of America, or a city, town or other municipality within a foreign nation. |
1. | For twelve (12) months following the Termination Date, Grantee shall not sell or solicit the sale of a Competing Product to a Restricted Customer or assist others in doing so. |
2. | For twelve (12) months following the Termination Date, Grantee shall not perform Services as part of or in support of providing, selling, or soliciting the sale of a Competing Product to a Restricted Customer or assist others in doing so. |
3. | For twelve (12) months following Termination Date, Grantee shall not encourage or cause a Restricted Customer to curtail, withdraw or cancel any business with Company or assist others in doing so. |
4. | For twelve (12) months following Termination Date, Grantee shall not sell or solicit the sale of a Competing Product to a Strategic Customer or assist others in doing so. |
5. | For twelve (12) months following Termination Date, Grantee shall not perform Services as part of or in support of providing, selling or soliciting the sale of a Competing Product to a Strategic Customer or assist others in doing so. |
6. | For twelve (12) months following Termination Date, Grantee shall not encourage or cause a Strategic Customer to curtail, withdraw or cancel any business with Company or assist others in doing so. |
7. | For twelve (12) months following the Termination Date, Grantee shall not sell or solicit the sale of a Competing Product to or through a Referral Client or assist others in doing so. |
8. | For twelve (12) months following the Termination Date, Grantee shall not perform Services as part of or in support of providing, selling or soliciting the sale of a Competing Product to or through a Referral Client or assist others in doing so. |
9. | For twelve (12) months following Termination Date, Grantee shall not encourage or cause a Referral Client to curtail, withdraw or cancel any business with Company or assist others in doing so. |
10. | For three (3) months following the Termination Date, Grantee shall not sell or solicit the sale of a Competing Product to a Current Pending Customer or assist others in doing so. |
11. | For twelve (12) months following Termination Date, Grantee shall not accept a position or provide services to a competitor in any capacity in which it is reasonably likely that Grantee would inevitably use or disclose the Company’s Confidential Information or Trade Secrets. This Paragraph shall not bar Grantee from performing clerical, menial or manual labor. |
12. | For twelve (12) months following Termination Date, Grantee shall not perform Services as part of or in support of the business of selling, providing or soliciting the sale of Competing Products in the Restricted Territory. This Paragraph shall not bar Grantee from performing clerical, menial or manual labor. This Paragraph shall apply to Grantee only if during the one (1) year period immediately preceding the Termination Date Grantee is involved in sales, sales management, or served as an executive or officer of the Company. |
13. | For twelve (12) months following the Termination Date, Grantee shall not perform Services as part of or in support of developing, designing, testing, or producing Competing Products for sale in the Restricted Territory. This Paragraph shall apply to Grantee only if during the one (1) year period immediately preceding the Termination Date Grantee is involved in product development design, testing, production, or served as an executive or officer of the Company. |
14. | For twelve (12) months following the Termination Date, Grantee shall not perform Services as part of or in support of the business of selling, providing or soliciting the sale of Competing Products in the Sales Territory. This Paragraph shall not bar Grantee from performing clerical, menial or manual labor. This Paragraph shall apply to Grantee only if during the one (1) year period immediately preceding the Termination Date Grantee is involved in product development design, testing, production, or served as an executive or officer of the Company. |
15. | For twelve (12) months following the Termination Date, Grantee shall not perform Services as part of or in support of developing, designing, testing or producing Competing Products for sale in the Sales Territory. This Paragraph shall apply to Grantee only if during the one (1) year period immediately preceding the Termination Date Grantee is involved in product development design, testing, production, or served as an executive or officer of the Company. |