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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 5 day of February, 1997, by and
between Aqua-Chem, Inc., a Delaware corporation (the "Company"), and Rand
McNally (the "Executive").
WITNESSETH:
WHEREAS, the Executive has been employed by the Company as the
Executive Vice President and General Manager of the Company's Cleaver-Brooks
Division; and
WHEREAS, the Company desires to continue to employ Executive in his
capacity as Executive Vice President and General Manager of the Cleaver-Brooks
Division and Executive desires to continue to serve in such capacity; and
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized:
(a) "Agreement" means this Employment Agreement.
(b) "Base Salary" means the salary of record paid to the Executive
as annual salary as set forth on Schedule A, excluding amounts
received under incentive or other bonus plans, whether or not
deferred.
(c) "Beneficiary" means the persons or entities designated or
deemed designated by the Executive pursuant to Section 11
herein.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause" means any of the following as determined by the
Committee in the exercise of good faith and reasonable
judgment (i) the willful and continued refusal by the
Executive to perform his duties hereunder, other than by
reasons of health, after a written demand for such performance
is delivered to the Executive by the Company that identifies
the manner in which the Executive has refused to perform his
duties, (ii) the commission of an act by the Executive
constituting a felony under state or federal law, (iii) the
habitual abuse by the Executive of any substance (such as
narcotics or alcohol) which materially affects his ability to
perform his duties, or (iv) the Executive's engaging in an act
of fraud, dishonesty or gross misconduct in connection with
the business of the Company, or (v) conduct by the Executive
constituting a material breach of this Agreement.
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EXHIBIT 10.4
(f) "Change In Control" means (a) the consummation of a merger or
consolidation of the Company after which a Third Party (as
hereinafter defined) owns more than 50% of the outstanding
common stock of the Company or (b) a sale of the Division (as
hereinafter defined) or substantially all of the assets of the
Company to a Third Party or (c) a sale or other transfer to a
Third Party of more than 50% of the common stock of the
Company.
(g) "Committee" means the Compensation Committee of the Board.
(h) "Company" means Aqua-Chem, Inc., a Delaware corporation.
(i) "Division" means the Cleaver-Brooks Division of the Company.
(j) "Effective Date" means the date this Agreement is executed on
behalf of the Company.
(k) "Effective Date of Termination" means the date on which a
termination of the Executive's employment occurs for any
reason whatsoever.
(l) "Executive" means Rand McNally.
(m) "Good Reason" means, without the Executive's consent, the
occurrence of any one or more of the following:
(i) the reassignment of the Executive to duties
materially inconsistent with the Executive's present
authorities, duties, responsibilities, and status as
an officer of the Company, other than an act that is
remedied by the Company promptly after receipt of
written notice thereof given by the Executive, and
other than a promotion of the Executive to a position
accepted by the Executive which includes duties,
responsibilities, and status associated with the
position; or
(ii) a reduction by the Company of the Executive's Base
Salary as in effect on the Effective Date (other than
a reduction as part of an overall reduction in
compensation affecting all senior management of the
Company) or the exclusion of the Executive by the
Company from such incentive compensation programs as
the Company may, from time to time, make available to
the senior management of the Company.
(n) "Permanent Disability" shall have the meaning set forth in
the Company's long-term disability program as in effect from
time to time.
(o) "Third Party" means any person(s) and/or business
organization(s) of any type other than the present
shareholders of the Company and their affiliates.
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EXHIBIT 10.4
2. EMPLOYMENT TERM.
The employment term shall commence as of the Effective Date and shall
continue thereafter until the earlier of (i) 45 days after Executive's receipt
of written notice from the Company terminating employment pursuant to Section
6(b) of this Agreement; (ii) immediately upon Executive's receipt of written
notice terminating employment pursuant to Section 6(a) of this Agreement; (iii)
such date as the Company shall elect up to a maximum of 45 days after its
receipt of written notice from the Executive terminating employment pursuant to
Section 6(b) or 6(c) of this Agreement; or (iv) the Executive's death or
Permanent Disability.
3. DUTIES.
During the employment term, the Executive shall serve as Executive Vice
President and General Manager of the Cleaver-Brooks Division with such duties
and responsibilities as may reasonably be assigned or delegated to him from time
to time according to customary Company procedures. During his employment term,
the Executive shall devote his full time to the faithful and diligent
performance of his duties for the Company. Notwithstanding anything herein to
the contrary, nothing shall preclude the Executive from engaging in charitable
and community affairs and managing his personal investments so long as such
activities do not interfere with his carrying out his duties and
responsibilities under this Agreement.
4. COMPENSATION.
(a) BASE SALARY. During the employment term, the
Executive shall be paid by the Company a Base Salary
payable (after deduction of applicable taxes) in
accordance with the payroll practices of the
Company. Initially, the Base Salary shall be as set
forth on Schedule A attached hereto. It is agreed
between the parties that the Company shall review
the Base Salary annually and in light of such review
may, in the sole discretion of the Committee, adjust
such Base Salary taking into account any change in
the Executive's then responsibilities, increases in
the cost of living, performance of the Executive,
and other pertinent factors.
(b) INCENTIVE COMPENSATION. The Executive shall, during
the employment term, be eligible to participate in
such incentive compensation programs as the Company
may, from time to time, make available to its senior
executives.
5. OTHER EMPLOYEE BENEFITS.
(a) BENEFIT PLANS. During the employment term, the
Executive shall be entitled to participate in all
employee benefit programs as the Company, from time
to time, makes available to the Company's senior
executives, including, without limitation, medical,
disability and life insurance, and retirement
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EXHIBIT 10.4
plans. The Executive shall be provided with the use
of a leased car at the Company's expense and shall be
entitled to such other perquisites set forth on
Schedule A.
(b) VACATION. The Executive shall be entitled to
reasonable paid annual vacation periods in accordance
with the Company's policies as in effect from time to
time, but in no event shall such vacation period be
less than that set forth on Schedule A attached
hereto.
(c) REGULAR REIMBURSED BUSINESS EXPENSES. The Company
shall reimburse the Executive for all travel and
other expenses reasonably incurred by the Executive
in the performance of his duties during the
employment term, in accordance with the Company's
policies in effect from time to time.
6. TERMINATION OF EMPLOYMENT.
(a) TERMINATION BY THE COMPANY FOR CAUSE. In the event
the Executive's employment is terminated by the
Company for Cause, the Executive shall be entitled to
his then current Base Salary through the Effective
Date of Termination.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE
EXECUTIVE WITH GOOD REASON. In the event the
Executive's employment is terminated by the Company
without Cause or by the Executive with Good Reason,
then upon complying with the provisions of Section
6(f) of this Agreement, but only upon such
compliance, the Executive shall be entitled to the
following:
(i) SEVERANCE PAY. For a period of twelve (12)
months following the Effective Date of
Termination, the Executive shall continue to
be paid his then current Base Salary in
accordance with the Company's normal payroll
practices and subject to withholding as
required by law; provided, however, that if
at the end of such 12 month period the
Executive, despite continuing good faith and
reasonable efforts, has been unable to
obtain employment (including
self-employment), the Executive's Base
Salary will be continued until he obtains
employment (including self-employment) for
up to an additional six (6) months;
(ii) INCENTIVE COMPENSATION. The Executive shall
be paid an amount equal to the amount, if
any, which the Executive would have been
entitled to receive pursuant to any
incentive compensation plan in effect for
the year during which the Effective Date of
Termination occurred multiplied by a
fraction, the numerator of which is the
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EXHIBIT 10.4
number of complete months the Executive was
employed during such year and the
denominator of which is twelve (12), with
such amount subject to withholding as
required by law to be paid at such time as
such payments are made to the other
executives of the Company;
(iii) HEALTH AND DENTAL INSURANCE. If the
Executive exercises his COBRA rights with
respect to medical and dental insurance, the
Executive shall be entitled to receive such
coverage for the 12 month period following
the Effective Date of Termination (or, up to
18 months if the Executive has been unable
to obtain employment or become
self-employed) at a cost equal to the amount
paid by then current employees of the
Company for such coverage;
(iv) OUTPLACEMENT SERVICES. The Executive shall
be furnished with outplacement services for
a period of up to 12 months paid for by the
Company with such firm as the Company then
utilizes for such purposes; and
(v) COMPANY AUTOMOBILE. The Executive shall be
permitted to use his leased Company
automobile for 45 days following the
Effective Date of Termination and during
such period, shall have the right to
purchase such car from the leasing company
at the price specified in the lease.
In the event the Executive does not comply with the
provisions of Section 6(f) of this Agreement, the
Executive shall be entitled to his then current Base
Salary through the Effective Date of Termination.
(c) VOLUNTARY TERMINATION BY THE EXECUTIVE. In the event
of a termination of the Executive's employment by the
Executive on his own initiative other than for Good
Reason, the Executive shall be entitled to his then
current Base Salary through the Effective Date of
Termination.
(d) DEATH OR PERMANENT DISABILITY OF THE EXECUTIVE. The
employment term shall terminate without notice and
automatically upon the death or Permanent Disability
of Executive. Upon the termination of Executive's
employment by reason of death or Permanent
Disability, the Executive or, in the event of his
death, the Executive's Beneficiary shall be entitled
to receive the Executive's then current Base Salary
through the Effective Date of Termination and
incentive compensation determined in accordance with
Section 6 (b)(ii) of this Agreement.
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EXHIBIT 10.4
(e) BENEFITS. Except as and to the extent specifically
provided to the contrary in this Section 6 or in
Schedule A attached hereto, the Executive's
compensation and eligibility to participate in
programs or receive benefits provided by the Company
(other than those which have vested by virtue of
Executive's prior employment) shall terminate on the
Effective Date of Termination.
(f) RELEASE. As condition precedents to receiving the
severance benefits described in Section 6(b) of this
Agreement: (i) the Executive shall, within 30 days
after the Effective Date of Termination, execute a
Release in the form attached hereto as Exhibit A; and
(ii) the Executive shall not have revoked the Release
within the seven day revocation period provided by
the Older Workers Benefit Protection Act.
7. RESTRICTIONS.
(a) The Executive acknowledges and agrees that the
Division's business is by its nature international,
the Company's business and customer contacts have
been established and maintained at great expense, the
Executive, by virtue of his position with the
Company, has and will continue to be privy to the
Company's most confidential business plans and
strategies which, without the restrictions
hereinafter set forth, would enable the Executive to
compete unfairly with the Company and, accordingly,
such restrictions are reasonable and necessary to
protect the legitimate interests of the Company. As a
result, and in order to induce the Company to enter
into this Agreement and to provide the benefits
described in this Agreement, the Executive agrees to
the restrictions set forth in Section 7 and
simultaneous with the execution of this Agreement is
entering into the Employee Confidentiality and
Proprietary Information Agreement attached hereto as
Exhibit B.
(b) The Executive hereby covenants and agrees that at no
time during the employment term and for a period of
twelve (12) months following the Effective Date of
Termination will the Executive directly or indirectly
in any capacity whatsoever (whether as an employee,
officer, director, consultant, partner, member, joint
venturer, agent, representative or otherwise) provide
service, advice or assistance of any nature to or
acquire an ownership interest in (or acquire the
right to acquire an ownership interest in) a
Competing Business (as hereinafter defined). A
"Competing Business" shall mean and be limited to any
business, regardless of the form of organization,
which (i) is engaged in the design, manufacture
and/or sale of products which are similar in design
or function to and otherwise compete with the
products which were under design by the Division or
included in the Division's product lines during the
twelve month period preceding the Effective Date of
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EXHIBIT 10.4
Termination (hereinafter referred to as "Competing
Products") and which (ii) sells, attempts to sell or
markets (or during the twelve month period preceding
the Effective Date of Termination sold, attempted to
sell or marketed) any Competing Products within the
United States and/or any foreign country within
which, during the twelve (12) month period preceding
the Effective Date of Termination, the Division sold
any of its products (or was a party to an executory
contract for the sale of any of its products),
attempted to sell, or marketed any of its products
other than by means of general advertising.
Notwithstanding the preceding, the Executive shall
not be prohibited from (i) acquiring less than five
percent (5%) of the stock of any publicly traded
company which may be engaged in a Competing Business,
or (ii) being employed by or otherwise providing
services to a company which, among its various
businesses, is engaged in a Competing Business
provided that the Executive is not directly or
indirectly involved in any capacity whatsoever in
such Competing Business.
(c) The Executive hereby covenants and agrees that, at
all times during the employment term and for a period
of twelve (12) months following the Effective Date of
Termination, the Executive shall not directly or
indirectly, on behalf of himself or any other person,
entity, or business, employ or engage the services of
or seek to employ or engage the services of any
person employed by the Division or any agent who
represents the Division during the period of six
months prior to the Effective Date of Termination, or
otherwise encourage or entice any such person to
terminate or diminish their relationship with the
Division.
(d) The Executive hereby acknowledges and agrees (i) the
Executive's education and experience are such that
the foregoing restrictions will not unduly interfere
with his ability to earn a livelihood, (ii) the
Company would suffer irreparable harm in the event of
a violation of such restrictions, and (iii)
accordingly, in addition to any other remedies
available to it, the Company shall be entitled to
injunctive relief without the posting of bond or
other collateral and the Executive shall not oppose
the granting of such relief. The Company shall be
entitled to all costs, including reasonable
attorneys' fees, in enforcing such restrictions or
pursuing damages for breach.
8. CHANGE IN CONTROL.
In the event of a Change In Control, the Executive shall be eligible,
as hereinafter set forth, to receive from the Company (or its successor pursuant
to such Change In Control) a "Change In Control Bonus" as set forth in Schedule
A attached hereto. An amount equal to one-half of the Change In Control Bonus
shall be paid to the Executive on the date of the Change In Control if, but only
if, the Executive is either (i) then employed by the Company, or its successor
or (ii) his
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EXHIBIT 10.4
employment was terminated within the 90 days preceding the date of the Change In
Control at the election of the Company for reasons other than "Cause" or by the
Executive for "Good Reason." The remaining one-half of the Change in Control
Bonus shall be paid to the Executive 180 days after the date of the Change In
Control if, but only if, the Executive is either (i) then employed by the
Company or its successor or (ii) his employment was terminated within the 180
day period following the date of the Change In Control at the election of the
Company (or its successor pursuant to such Change In Control) for reasons other
than "Cause" or by the Executive for "Good Reason."
9. ASSIGNABILITY; BINDING NATURE.
This Agreement shall inure to the benefit of the Company and the
Executive and their respective successors, heirs (in the case of the Executive)
and permitted assigns. Except as specifically provided to the contrary in this
Agreement, no rights or obligations of the Company or Executive under the
Agreement may be assigned or transferred. Notwithstanding the preceding, the
rights and obligations of the Company may be assigned or transferred pursuant to
a Change In Control provided that such assignee or transferee assumes the
liabilities, obligations and duties of the Company, as contained in this
Agreement, either contractually or as a matter of law.
10. BENEFICIARIES.
The Executive may designate one or more persons or entities as the
primary and/or contingent Beneficiaries of any payments owing to the Executive
under this Agreement. Such designation must be in the form of a signed writing
reasonably acceptable to the Company. The Executive may make or change such
designation by a similar written instrument signed by the Executive and
delivered to the Company at any time.
11. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the Company and
the Executive and supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between them with
respect thereto.
12. AMENDMENT OR WAIVER.
This Agreement cannot be changed, modified or amended without the prior
written consent of both the Executive and the Company. No waiver by either the
Company or the Executive at any time of any breach by the other party of any
condition or provision of this Agreement shall be deemed a waiver of a similar
or dissimilar condition or provision at the same or at any prior or subsequent
time. Any waiver must be in writing and signed by the Executive and an
authorized officer of the Company, as the case may be.
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EXHIBIT 10.4
13. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
14. SURVIVORSHIP.
The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
15. GOVERNING LAW.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Wisconsin without reference to
principles of conflicts of laws.
16. NOTICES.
Any notice given to either party shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned, if to the Company, at its principal office, and, if to the
Executive, at the address of the Executive shown on the Company's records, or at
such other address as such party may give notice of.
17. HEADINGS; CONSTRUCTION.
The headings of the paragraphs contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first written above.
/s/ Rand McNally
------------------------------------
Rand McNally, Individually
AQUA-CHEM, INC.
By: /s/ Jeffrey A. Miller 2/10/97
----------------------------------
Jeffrey A. Miller, President
December 13, 1996
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EXHIBIT 10.4
SCHEDULE A
Effective for Calendar Year 1997
Executive: Rand E. McNally
Title: Executive Vice President and General Manager
Grade: 31
Division: Cleaver-Brooks Division
Base Salary: $145,107
Effective Date: 11/24/94
Incentive Compensation:
Management Incentive Plan Target: 35% Salary Grade Mid-Point
Executive Management Incentive Plan Target: 30% Salary Grade Mid-Point
Change in Control: An amount equal to one (1) times the
annual base salary in effect at the time
of change in control.
Other Employee Benefits:
General:
- Participation in all employee benefit programs as the
Company, from time-to-time, makes available to the
Company's senior executives.
Life Insurance:
- Universal Life Policy: $450,000 - Owned by the
Executive, paid by the Company
Vacation:
- Four (4) weeks/annually
Company Automobile:
- Lease vehicle per plan guidelines.
Other:
- Company paid membership at Northshore Country Club.
- Includes cost of annual membership
fees (qtrly minimums excluded)
- Professional Association
- Outplacement services will be provided for a period
of up to twelve (12) months paid for by the Company
at a firm of the Executive's choice provided the
maximum cost of such outplacement program does not
exceed $15,000.
/s/ Rand McNally /s/ Jeffrey A. Miller 2/10/97
- --------------------------------- ----------------------------------
Date: 2/14/97
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EXHIBIT 10.4
Exhibit A
GENERAL RELEASE
_______________________, (the "Executive"), for good and valuable consideration,
the receipt of which is hereby acknowledged, does hereby release and forever
discharge Aqua-Chem, Inc. ("Aqua-Chem") and all of its past, present and future
officers, directors, agents, employees, attorneys, shareholders, employee
benefit plans, divisions, parent corporations, subsidiary corporations,
affiliated corporations, successors and assigns (collectively the "Released
Parties") from any and all actions, causes of action, claims, suits, debts,
covenants, contracts, demands or liabilities of any kind or character
whatsoever, whether known or unknown, which the Executive has had or now has
against the Released Parties (or any of them) related to anything occurring
prior to or on the present date.
Without limiting the generality of the foregoing, this release applies to any
claims, causes of action, demands or liabilities the Executive may have had or
now has:
1. Under or pursuant to the Age Discrimination in Employment Act, as
amended.
2. Under or pursuant to Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Wisconsin Fair Employment
Act; the Employee Retirement Income Security Act, as amended, or any
other federal, state or local statute or regulation relating to
employment.
3. For libel, slander, defamation, damage to reputation, intentional or
negligent infliction of emotional distress, tortious interference with
the employment or business relationship or other tortious conduct or
for wrongful discharge or breach of contract whether express or
implied.
4. Regarding any right which the Executive might have to current or future
employment with Aqua-Chem, its divisions or affiliated companies, and
the Executive affirms that he will not seek employment in the future
with Aqua-Chem, its divisions or affiliated companies.
The Executive acknowledges that he has been advised in writing (1) to consult
with an attorney prior to executing this General Release, and (2) that he had at
least twenty-one (21) days to consider this General Release prior to executing
it.
For a period of seven (7) days following the execution of this General Release,
the Executive shall have the right to revoke this General Release, and this
General Release shall not become effective or enforceable until seven (7) days
following such execution.
IN WITNESS WHEREOF, the undersigned has executed this General Release this ____
day of _______________, 199__.
------------------------------------
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[AQUA-CHEM LOGO]
EXHIBIT 10.4
EMPLOYEE CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT
STATEMENT OF SUFFICIENCY OF CONSIDERATION
The attached Employee Confidential and Proprietary Information
Agreement is being signed contemporaneously with the execution of an employment
agreement between the company and myself. I acknowledge and agree that the
mutual considerations and promises contained in the employment agreement
constitute due and sufficient consideration to support the obligations contained
in the Employee Confidential and Proprietary Information Agreement. I understand
that by executing this document, I acknowledge the sufficiency of such
consideration.
/s/ Rand McNally
------------------------------
Employee Signature
(Include first name in full)
Date 2-5-97
--------------------------
Witness:
/s/ Jeffrey A. Miller
- ----------------------------
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EXHIBIT 10.4
(AQUA-CHEM LOGO)
EMPLOYEE CONFIDENTIAL AND PROPRIETARY INFORMATION AGREEMENT
Name Rand McNally Social Security No. ###-##-####
-------------------------------------- --------------
Place Milwaukee, WI Date 2-5-97
------------------------------------- -----------------------------
In consideration of my employment in any capacity and of the salary or
wages paid for my services in the course of employment by Aqua-Chem, Inc., or a
Division of Aqua-Chem, Inc., or a wholly-owned subsidiary of Aqua-Chem, Inc., or
any corporation owned or controlled by Aqua-Chem, Inc., hereinafter called
COMPANY, I agree as follows:
1. I agree that from the time of entering the COMPANY's employ until one
year after termination of my employment, I will promptly communicate to an
official of the COMPANY and/or such other persons as may be designated by the
COMPANY from time to time, all significant technical or business innovations and
all inventions, whether patentable or unpatentable, made or conceived by me
alone or jointly with others, capable of use in connection with the business,
work or investigations of the COMPANY or resulting from or suggested by any work
which I may do for or on behalf of the COMPANY, or at its request, and
improvements thereon, or inventions and innovations made on company time or with
company materials, and I agree to assign, and by these presents do hereby
assign, all of my right, title and interest in and to such inventions and
innovations to the COMPANY, and I agree upon request to execute specific
assignments to the COMPANY of such inventions and innovations, together with all
rights thereunder in the United States and all foreign countries, and I will
execute all papers and perform all other lawful acts which the COMPANY or its
nominees deems necessary or advisable, for the preparation, filing, prosecution
and maintenance of patent applications and/or patents of the United States and
foreign countries and for the transfer of any and all interests therein to the
COMPANY including the execution of original, divisional, continuing, extended
and reissue applications, preliminary statements, affidavits, and concessions
and the giving of testimony with respect to inventions, discoveries,
applications and patents and otherwise assist the COMPANY or its nominees in
every proper way to obtain for its benefit patents, copyrights or other legal
protection for such inventions or innovations or for publications pertaining to
them in any and all countries, said inventions and innovations to be the
exclusive property of the COMPANY or its nominees, whether or not patented or
copyrighted. It is understood that all expenses in connection with carrying on
any of the above are to be borne by the COMPANY.
2. I further agree to make and maintain adequate and current written
records of all such inventions and innovations in the form of notes, sketches,
drawings, or reports relating thereto, which records shall be and remain the
property of and available to the COMPANY at all times; and, upon any termination
of my employment, promptly to deliver to the COMPANY all drawings, blueprints,
manuals, letters, notes, notebooks, reports, models, computer programs, data and
disks, and other materials (including all copies) which are of a secret or
confidential nature relating to the business of the COMPANY or its affiliates,
and which are in my possession or under my control.
3. I hereby acknowledge that certain techniques, manufacturing equipment
and processes have been developed by the COMPANY which have achieved the status
of trade secrets, and that additional trade secrets may be developed during the
course of my employment; and I agree that I will not, without written approval
by the COMPANY, publish or otherwise disclose or authorize anyone else to
publish or disclose, or use to the detriment of the COMPANY, either during the
term of my employment or thereafter, any information, knowledge, or data of the
COMPANY or its customers, vendors or any other third party with whom the COMPANY
conducts business which I may receive or develop during the course of my
employment relating to inventions, discoveries, formulas, processes, machines,
manufacturers, compositions, computer programs, accounting methods, information
systems or business or financial plans or reports, marketing strategies, pricing
information, customer lists, prospective customer lists, or other matters which
are of a secret or confidential nature acquired in the course of my employment
under this Agreement or heretofore with any company controlled by Aqua-Chem,
Inc.
4. I represent that except as I have written on the reverse side of this
Agreement, I do not have (1) any agreement with or obligation to others in
conflict with this Agreement, and (2) any claim in any invention or idea either
(a) conceived by me or by me and others prior to my employment with the COMPANY
or (b) otherwise outside the scope of this Agreement and in the absence of any
such writing on the reverse side of this Agreement, the COMPANY may assume that
no such conflicting agreements or inventions or ideas exist, and that I will not
make any claim against the COMPANY with respect to the use of such inventions or
ideas in any work or the product of any work which I perform or cause to be
performed for or on behalf of the COMPANY. I understand that the COMPANY wants
me to use on my job all the information which is generally known and used by
persons of my training and experience and all information which is common
knowledge in the industry, but it does not want me to disclose any confidential
information belonging to any former employer of mine which I am legally or
ethically bound not to disclose.
5. I understand and agree that the obligations contained herein are
continuing and further agree that in the event my employment is terminated for
any reason, whether voluntarily or involuntarily, I shall continue to be
obligated under this Agreement not to use or disclose confidential or trade
secret information following the termination of my employment. I understand and
agree that the restrictions set forth in this Agreement shall have the following
duration: (1) with respect to trade secret information, the restrictions shall
EXHIBIT 10.4
remain in effect for as long as such information remains a trade secret; (2)
with respect to all other information identified herein as being confidential
information, the restrictions shall remain in effect for a period of two (2)
years following the termination of my employment.
6. I agree that the discharge of my undertakings in this Agreement shall be
an obligation of my executors, administrators, or other legal representatives or
assigns. This Agreement shall be governed by and construed under the laws of the
State of Wisconsin.
7. This Agreement shall be governed by and construed under the laws of the
State of Wisconsin. In the event of a violation of this Agreement, I agree that
the COMPANY shall be entitled, as a matter of right, in addition to other
remedies otherwise available to it, to injunctive relief restraining any further
violation of this Agreement, and to all costs, including reasonable attorneys'
fees, incurred in enforcing this Agreement or pursuing damages for breach.
8. Finally, I agree that this Agreement supersedes and replaces any
existing agreement which I have entered into with the COMPANY relating generally
to the same subject matter, and it may not, on behalf of or in respect to the
COMPANY be changed or modified, or released, discharged, abandoned or otherwise
terminated, in whole or in part, except by an instrument in writing signed by an
officer or authorized representative of the COMPANY.
(Signed) /s/ Rand McNally
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(Employee's signature - to include first name in full)
(Date) 2-5-97
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(To be written by employee)
Witness /s/ J. A. Miller
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Date: 2-10-97
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