The assignment of assets to Hexacomb specifically included "Hexcel's good will, customer lists, sales information, manufacturing information and proprietary know-how which relate to the operation of the Michigan City plant" and "all agreements relating to the operation of normal business at the Michigan City plant." (Exhibit TT, para. 1.6 and 7.6). This would include the employment agreements.
Because George Sr. continued to accept the same job and responsibilities, he also accepted the same obligations. See Safier's Inc. v. Bialer, 42 Ohio Op. 209, 93 N.E.2d 734, 736-7 (Ct. of Com. Pleas, Ohio 1950) where the court held that by accepting employment with the successor corporation, the employee "effected a novation, whether such a novation was necessary to the right to enforce the restrictive covenant or not." 93 N.E.2d at 739. Here George Sr. continued to be employed by Hexacomb and effected such a novation.
Similarly, Illinois courts have recognized the assignability of confidentiality and non-compete agreements. In Hamer Holding Group v. Elmore, 202 Ill. App. 3d 994, 560 N.E.2d 907, 917, 148 Ill. Dec. 310 (1st Dist. 1990), the court held that the successor in an asset purchase could enforce a confidentiality and covenant not to compete agreement made with its predecessor corporation.
Like the defendants in the cases cited above, George Sr., after each change of employers, continued to do the same work and accept the same benefits. The plant "operated about the same way" after Hexcel took over, and "as far as [he] can remember" George Sr. went to work one day as a Celadyn Employee and came back the next day as a Hexcel employee. (Wroblewski Dep., p. 254-258). He kept the same job of maintenance supervisor, continued to work on the same machines, and kept the same seniority, vacation, and insurance benefits. (Wroblewski Dep., pp. 261, 265-266, 269). Even the phone number stayed the same. (Wroblewski Dep., p. 254).
George Sr. left Hexacomb in February 1982 but returned to Hexacomb in December 1982, eight months later. George Sr. again had the same position of maintenance supervisor including the same duties and responsibilities. (Wroblewski Dep., pp. 278-279). Hexacomb has shown, and this Court finds, that George Sr.'s brief absence did not affect the enforceability of the agreements because George Sr. came back to the same job with the same responsibilities. Under the rationale of MBL U.S.A. Corp. v. Diekman, 112 Ill. App. 3d 229, 445 N.E.2d 418, 67 Ill. Dec. 938 (1st Dist. 1983), George Sr.'s confidentiality agreements would be enforceable even though he left for eight months. The duty of confidentiality is continuing and is the same during and after employment. "It is an absolute, not a relative duty." L. M. Rabinowitz & Co., Inc. v. Dasher, 82 N.Y.S.2d 431, 78 U.S.P.Q. 163, 165 (N.Y.S. Ct. 1948).
We also find that there was adequate consideration for the employment agreements because continued employment after the signing of a confidential employment agreement is sufficient consideration. The July 24, 1972 Lancaster agreement was signed by George Sr. at the start of George Sr.'s employment and was followed by approximately four years of continuous employment. The September 21, 1976 Hexcel agreement was also signed at the start of George Sr.'s employment with Hexcel and was followed by approximately three and a half years of continuous employment. The February 27, 1979 reaffirmation agreement was followed by 13 years of employment with Hexacomb. At the time George Sr. signed the reaffirmation agreement, he knew he was going to work for Hexacomb and he filled out an application for insurance with Hexacomb the very same day. (Wroblewski Dep., pp. 275-276 ; Exh. 136).
We find that the employment agreements signed by George Sr. put him on notice as to the confidential nature of the CHS machines. The confidential nature of Hexacomb's CHS machines was further made clear to George Sr. during the exit interviews discussed above.
Hexacomb has shown that the design of its CHS machines are not generally known to any one else in the industry and George Sr.'s testimony was that he is aware of no one outside of Hexacomb with a continuous-feed machine of Hexacomb's design. (Hearing, pp. 347-350). Hexagon Corporation, one of Hexacomb's competitors prior to 1993, tried unsuccessfully to get better designs. Hexagon's search included working with numerous machine shops and designers, and even asking George Smith, one of the witnesses in this case and a former Hexacomb employee, if he could tell them how Hexacomb's machines worked.
The evidence also established that the only source outside of Hexacomb with any knowledge of Hexacomb's continuous-feed CHS machine was Peotone Machine Company ("Peotone"). However, such disclosure was of the blade section only and was pursuant to a confidentiality agreement signed by Lloyd Collins of Peotone and witnessed by George Sr. In that agreement, Hexacomb's continuous-feed CHS machine is particularly identified as "proprietary" and "confidential." (Exhibit U).
Additionally, Hexacomb has shown that its continuous-feed CHS machines are complicated machines which one could not determine how to build without close inspection and measurement. This can be seen by the testimony of Colin Burgess who, despite having seen Hexacomb's CHS machines, was surprised that they could operate at twice the rate of any design he could think of. (Hearing, pp. 900-902). Mr. Burgess also signed a confidentiality agreement with Hexacomb. (Exhibit PP). George Sr. himself specifically admitted that unless one saw the continuous-feed CHS machines operating and took careful measurement of the machines, it was not possible to determine how they operated or what was needed to duplicate the machines. (Hearing, pp. 347-348, 361-363).
3. Defendants Misappropriated Hexacomb's CHS Machine
In pertinent part, misappropriation of a trade secret is defined in the Illinois Trade Secrets Act, 765 ILCS 1065/2(b)(2)(B)(II) as follows:
"(b) Misappropriation means:
(2) disclosure or use of a trade secret of a person without express or implicit consent by another person who: