Andrew T. Berger
Frank G. Hallowell
Image Sensing Systems, Inc.
Andrew T. Berger
APPENDIX A
TO THE EMPLOYMENT AGREEMENT BETWEEN AUTOSCOPE TECHNOLOGIES CORPORATION AND FRANK HALLOWELL
CONFIDENTIALITY, NONCOMPETITION, AND INVENTION ASSIGNMENT AGREEMENT
This CONFIDENTIALITY, NONCOMPETITION, AND INVENTION ASSIGNMENT
AGREEMENT (“Agreement”) between Autoscope Technologies Corporation, a Minnesota corporation, and its subsidiaries and divisions (collectively, “AATC”), and Frank G. Hallowell (“Employee”) is signed and dated as of February 1, 2022.
As an express condition of Employee’s employment with AATC, for his receipt of AATC benefits, and other valuable consideration, and in exchange for other premises and mutual promises contained in this Agreement, AATC and Employee agree as follows:
1) Confidential and Proprietary Information.
a) Employee understands and agrees that, during his employment with AATC, he will receive proprietary, confidential, and trade secret information - all of which has special value to and constitutes a unique asset of AATC (collectively referred to in this Agreement as “Confidential & Proprietary Information”). Employee agrees that he will not disclose such Confidential & Proprietary Information during the period of his employment or after the termination of his employment for any reason whatsoever and that he will not use or share the same with any person, firm, or corporation without first obtaining AATC’s written consent.
b) For these purposes, “Confidential and Proprietary Information” includes, but is not limited to, confidential information relating to AATC’s business, products and services, customers, or vendors; trade secrets, data, specifications, developments, inventions, patents, patent materials, copyrightable subject matter and ideas, processes, know-how, designs, computer systems, and research activity; marketing and sales strategies, marketing and product plans, information, pricing strategies, and techniques; long and short term business plans; existing and prospective client, vendor, and employee lists, contacts, and information; financial and personnel information; any information and/or applications relating to AATC’s internal information systems; and any other information concerning the business of AATC which is not disclosed to the general public or known in the industry, except for disclosure necessary in the course of Employee’s duties or with the express written consent of AATC. All Confidential and Proprietary Information, including all copies, notes regarding, correspondence and/or electronic communications regarding, and replications of such Confidential and Proprietary Information will remain the sole property of AATC and must be returned to AATC immediately upon termination of Employee’s employment.
a) Employee acknowledges that AATC’s Confidential and Proprietary Information constitutes a unique and valuable asset of AATC and represents a substantial investment of time and expense by AATC, and that any disclosure or use of such knowledge or information other than for the sole benefit of AATC would be wrongful and would cause irreparable harm to AATC.
b) The foregoing obligations of confidentiality do not apply to any knowledge or information that is now published or which subsequently becomes generally publicly known in the form in which it was obtained from AATC, other than as a direct or indirect result of the breach of this Agreement by Employee.
2) Return of Company Property. Upon termination of employment with AATC for whatever reason, or at any other time at the request of AATC, Employee will deliver to a designated Company representative all records, documents, hardware, software, and all other Company property and all copies of such Company property in Employee’s possession. Employee acknowledges and agrees that all such materials are the sole property of AATC and that he will certify in writing to AATC at the time of delivery that he has complied with this obligation.
3) Noncompetition Covenant. AATC and Employee agree that, due to Employee’s position with AATC, Employee will have access to AATC’s Confidential and Proprietary Information and has developed and will continue to develop certain goodwill and relationships on behalf of AATC. Employee acknowledges that AATC will only release its Confidential and Proprietary Information, and will only permit Employee to continue to generate this goodwill and these relationships, upon the receipt of assurances that Employee will not use the information, goodwill, or relationships to AATC’s disadvantage and, accordingly, agrees to the following provisions:
a) Agreement Not to Compete. During the term of his employment with AATC, and for a period of twelve (12) months after the termination of such employment for any reason, Employee will not, directly, or indirectly, serve as an employee, agent, consultant, director, stockholder, or owner, or render services to any Conflicting Organization. Employee also will not direct any other individual or business enterprise to engage in such competition with AATC. For the purposes of this Agreement, “Conflicting Organization” means any business or other person or organization engaged in or which has plans to engage in any business which competes with any existing or future line of business of AATC in the geographic area in which AATC conducts business or is reasonably likely to conduct business in the foreseeable future.
b) Non-solicitation of Customers or Suppliers. During the term of his employment with AATC, and for a period of twelve (12) months after the termination of such employment for any reason, for the benefit of any Conflicting Organization, Employee agrees that he will not, directly or indirectly, divert, solicit, approach, contact, call upon, accept business from, or sell or render services to any client/customer or prospective client/customer of AATC who was solicited or serviced directly by Employee at any time during the twelve (12) months prior to
his termination from employment, or where he supervised, directly or indirectly, in whole or in part, the solicitation or service activities related to such clients or prospects during the same twelve-month period. Employee also will not, directly, or indirectly, aid or assist any other person, firm, or corporation in doing what he himself cannot do under the terms of this Agreement. Employee will not in any way interfere or attempt to interfere with AATC’s relationships with any of its actual or potential customers, suppliers, or subcontractors.
a) Non-solicitation of Employees. Employee recognizes that AATC’s work force constitutes an important and vital aspect of its business. During the term of his employment with AATC, and for a period of twelve (12) months after the termination of such employment for any reason, Employee will not, directly, or indirectly, hire, solicit, employ, or attempt to employ, any employee or director of AATC, or otherwise directly or indirectly interfere with or disrupt relationships, contractual or otherwise, between AATC and any of its employees, directors, or consultants.
b) Acknowledgment. Employee agrees that the restrictions and agreements contained in this Agreement (and particularly in this Paragraph 3) are reasonable and necessary to protect the legitimate interests of AATC, and that any violation of this Agreement will cause substantial and irreparable harm to AATC that would not be quantifiable and for which no adequate remedy would exist at law. Employee further acknowledges that he has had the opportunity to request that legal counsel review this Agreement and, having exhausted such right, agrees to the terms herein without reservation. Accordingly, Employee authorizes the issuance of injunctive relief by any court of appropriate jurisdiction, without the requirement of posting bond, for any violation of this Agreement, and agrees that AATC shall be entitled to the recovery of reasonable attorneys’ fees incurred in the enforcement of this Agreement.
2) Assignment of Inventions. Employee agrees to promptly disclose to AATC inventions, ideas, processes, writings, designs, developments, and improvements, whether or not protectable under the applicable patent, trademark, or copyright statutes, which Employee makes, conceives, reduces to practice, or learns during his/her employment by AATC, either alone or jointly with others, relating to any business in which AATC is or may be concerned (“Inventions”). Such disclosures will be made by Employee to AATC in a written report, setting forth in detail the structures, procedures and methodology employed, and the results achieved.
a) To the extent that any Invention qualifies as “work made for hire” as defined in 17 U.S.C. § 101 (1976), as amended, such Invention will be the exclusive property of AATC. Moreover, Employee agrees to treat every work or idea created or acquired by or on behalf of Employee for AATC as a “work made for hire.” It is the intent of both Employee and AATC that AATC have unrestricted ownership in all of such works and to any derivative works thereof, without further compensation of any kind to Employee or to those with whom Employee may work.
a) Consistent with and to the extent permitted by law, Employee hereby assigns and agrees to assign to AATC all rights in and to these Inventions, including, but not limited to, applications for United States and foreign patents and resulting patents and to further cooperate with AATC in maintaining, obtaining, and protecting such proprietary rights. Employee shall execute all applications, assignments, and other papers necessary to enable AATC to obtain full protection and title to such matter and inventions, and Employee hereby waives any claim of moral right that Employee may have in or in connection with any such work.
b) Employee further acknowledges that he received notice from AATC that his obligation to assign rights in and to any Inventions does not apply to an Invention for which no equipment, supplies, facility or trade secret information of AATC was used and which was developed entirely on Employee’s own time, and (I) which does not relate (A) directly to the business of AATC or (B) to AATC’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by Employee for AATC.
c) Employee has attached a complete list of all existing patentable or non-patentable inventions, original works of authorship, derivative works, trade secrets, trademarks, copyrights, service marks, discoveries, patents, technology, algorithms, computer software, application programming interfaces, protocols, formulas, compositions, ideas, designs, processes, techniques, know-how, data, and all improvements thereto to which Employee claims ownership as of the date of this Agreement and which Employee desires to clarify are not subject to this Agreement (“Excluded Inventions”). If no such list is attached to this Agreement, Employee represents that he has no such Excluded Inventions at the time of signing this Agreement.
d) Employee further agrees that prior to separation from employment with AATC for any reason, he will disclose to AATC, in a written report, all Inventions, the rights to which he has agreed to assign to AATC under (a) and (b) above, and which he has not previously disclosed.
e) In the event of any dispute concerning whether an Invention made or conceived by Employee is the property of AATC, such Invention will be presumed to be the property of AATC, and Employee will bear the burden of establishing otherwise in any arbitration, litigation, or similar proceeding.
2) Injunctive Relief. Because the Confidential and Proprietary Information described above and the products derived therefrom are unique, peculiar and of great value to AATC, AATC shall be entitled to injunctive relief to restrain Employee from violating or threatening to violate any provisions contained herein. The parties also agree that, because of the unique nature of their relationship and the information and products to which Employee has been exposed through this relationship, AATC shall be entitled to an injunction to be issued by any Court of competent jurisdiction enjoining and restraining Employee from committing any violation of this Agreement, and Employee hereby consents to the issuance of such injunction. Proceedings may be initiated against
Employee or Employee’s legal representatives or assigns. AATC shall be entitled to its reasonable costs and attorneys’ fees incurred in enforcing this provision.
1) Miscellaneous.
a) At-will Employment. Nothing in this Agreement creates any rights of employment. Employee is, and remains, an “at-will” employee.
b) Severability. It is further agreed and understood by the parties that if any part, term, or provision of this Agreement should be unenforceable, invalid, or illegal under any applicable law or rule, the offending term or provision will be struck, and the remaining provisions of the Agreement will not be affected or impaired thereby.
c) Assignability. The terms, conditions, and covenants of this Agreement shall be assignable to the successors and assigns of AATC.
d) Waiver. Failure of AATC at any time to enforce any provision of this Agreement shall not be interpreted as a waiver of any provision of AATC’s rights under this Agreement.
e) Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements, or representations, written or oral, relating to such subject matter.
f) Modification, Amendment, Waiver or Termination. No provision of this Agreement may be modified, amended, waived, or terminated except by an instrument in writing signed by the parties to this Agreement. No delay or waiver, express or implied, by AATC of any right or any breach by Employee shall constitute a waiver of any other right or breach by Employee.
g) Governing Law. This Agreement will be governed by and interpreted according to the substantive laws of the State of Minnesota without regard to such state’s conflicts law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date memorialized in the first paragraph.
Autoscope Technologies Corporation
By: /s/ Andrew T. Berger
Andrew T. Berger
President and Chief Executive Officer
By: /s/ Frank G. Hallowell
Frank G. Hallowell
APPENDIX B
TO THE EMPLOYMENT AGREEMENT BETWEEN AUTOSCOPE TECHNOLOGIES CORPORATION AND FRANK HALLOWELL
WHEREAS, Autoscope Technologies Corporation, a Minnesota corporation, and its subsidiaries and divisions (collectively, “AATC”), and Francis (Frank) G. Hallowell (“Hallowell”)entered into an Employment Agreement which became effective as of February 1, 2022; and
WHEREAS, in order to receive certain severance payments and related benefits under Paragraph 6 of that Employment Agreement, the parties agreed that Hallowell would be required to sign a release of claims at the time of the event contemplated by that Paragraph; and
WHEREAS, the parties have agreed to a form of release substantially similar to that set forth in this Appendix B; and
WHEREAS, under the terms of this Appendix B, Hallowell agrees to release all claims – whether known or unknown – that he may have against AATC, or any of its respective officers, directors, members, managers, employees or agents, parents or affiliates, through the date of his signature on this Appendix B.
NOW, THEREFORE, it is mutually agreed by and between the parties for good and valuable consideration as follows:
1. Hallowell affirms that he is signing this Appendix B on or after the termination of his employment as described in Paragraph 6 of the Employment Agreement.
2. Hallowell, for good and valuable consideration, does hereby fully and completely release and waive any and all claims, complaints, causes of action, demands, suits, and damages, of any kind or character, which he has or may have against AATC or any of its respective officers, directors, members, managers, employees or agents, parents or affiliates arising out of any acts, omissions, conduct, decisions, behavior, or events occurring up through the date of his signature on this Appendix B.
Hallowell understands that he is giving up any and all claims (whether now known or unknown) that he may have including (without limitation) claims relating to his employment with AATC, and the cessation of his employment with AATC, including, but not limited to, any claims arising under or based upon the Minnesota Human Rights Act; Title VII of the Civil Rights Act of 1964, as amended; the Americans With Disabilities Act; the Family & Medical Leave Act; the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act; or any other federal, state, or local statute, ordinance, or law. Hallowell also understands that he is giving up all other claims, including those grounded in contract or tort theories, including but not limited to breach of contract; tortious interference with contractual relations; promissory estoppel; breach of manuals or other policies; assault; battery; fraud; false imprisonment; invasion of privacy; intentional or negligent misrepresentation; defamation, including libel, slander, defamation and self-publication defamation; intentional or negligent infliction of emotional distress; sexual harassment; or any other theory.
Hallowell further understands that he is releasing, and does hereby release, any claims for damages, by charge or otherwise, whether brought by him or on his behalf by any other party, governmental or otherwise, and agrees not to institute any claims for damages via administrative or legal proceedings against AATC, or any of its respective officers, directors, members, managers, employees or agents, parents or affiliates. Hallowell understands that, while he retains his right to bring an administrative charge with the Equal Employment Opportunity Commission or the Minnesota Department of Human Rights, he waives and releases any and all rights to money damages or other legal relief awarded by any governmental agency related to any charge or claim.
1. Hallowell understands that he has the right to seek legal counsel before entering into this Appendix B and that he has 21 days from the date of his termination to execute this Appendix B.
2. Hallowell understands that he may revoke this release (Appendix B) (1) with respect to potential age related claims within the seven day period following the date he signs it and (2) with respect to potential claims under the Minnesota Human Rights Act within the fifteen day period following the date he signs it. Hallowell also understands that, if he does revoke this release (Appendix B), he gives up any right to the consideration provided to him the benefits described in Paragraph 6 of the Employment Agreement.
3. Hallowell acknowledges that he has read this Appendix B, that he understands it, and that he enters into Appendix B voluntarily.
Dated: _________________________
By: ___________________
Frank G. Hallowell
