Exhibit 10 (ii)
EMPLOYMENT AGREEMENT
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This Agreement made as of the 1st day of January 2000, by and between
MAINTENANCE DEPOT, INC., a Florida Corporation, ("the Company") and Xxxxxx Xxxx,
("Employee").
WITNESSETH:
For good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged by each of the parties hereto, the parties agree as follows:
1. TERM OF EMPLOYMENT. Subject to the terms and provisions hereof, the Company
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hereby employs Employee for a term ending December 31, 2005 (the "Employment
Period"). Unless written notice is given by either party to the other prior to
90 days prior to the end of said Employment Period, the Employment Period shall
be automatically extended for an additional term of five years.
2. DUTIES. Employee shall serve as Vice-President of the Company and shall have
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such duties as are delegated by the By-Laws of the Company or are assigned to
Employee by the Board of Directors of the Company, provided that such duties
shall be reasonably consistent with those duties (i) assigned to the
Vice-President of organizations comparable to the Company and (ii) performed by
Employee as Vice-President prior to the date of this Agreement. In connection
with the performance of these duties, the Company will supply Employee with
services and facilities reasonably appropriate to such duties and position.
Employee shall devote such time, attention, and energies to the business of the
Company as would normally be considered full time employment and shall not
accept other employment without the consent of the Board of Directors. Employee
acknowledges that he is a principal shareholder and officer of the Company and
agrees to execute as an officer and as an individual all documents reasonable
necessary to carry out the business of the Company.
3. COMPENSATION. The Company shall pay Employee a base annual salary of
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$105,300.00 Thereafter, the Base Salary will increase progressively for each of
the ensuing years by an amount equal to the greater of (i) 10% of the annual
salary for the prior year, or (ii) the percentage increase in the United States
Consumer Price Index-AII Items-United States City Average for Urban Wage earners
and Clerical Workers-published by the Bureau of Labor Statistics, United States
Department of Labor (the "Index") for the twelve month period ending three
months before the beginning of each such year. If at any time required for the
determination of the annual salary adjustment as above described the Index is no
longer published or issued, the parties shall use such other Index as is then
generally recognized or accepted for similar determination of purchasing power.
If the parties are unable to agree on the selection of an index which would most
accurately carry out the intent hereof, or if there is a dispute with to any
computations as called for herein, them the issue with respect thereto shall be
settled by binding arbitration conducted pursuant to the commercial arbitration
rules of the American Arbitration Association in Palm Beach County Florida.
The Board of Directors of the Company shall award to Employee an annual
bonus, payable in January of each year of the Employment Period, except for the
last year of the Employment Period during which year it shall be payable in
December of that year. Said Bonus shall be at least 10 % and no more than 50 %
of the salary due Employee for that year, the amount to be determined by the
Board of Directors based on Employee's performance, the Company's performance
and such other factors as the Board of Directors may choose to consider. The
weight of such individual factors shall be determined by the Board of Directors.
4. EXPENSES. Employee and Company agree that Employee may incur expenses in
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connection with the Companies business and that such expenses will be
reimbursed by the Company. Employee shall keep appropriate records of such
expenses and submit receipts or other evidence relating to them in accordance
with Company policies as established from time to time. Such expenses include,
but are not limited to, expenses for travel, entertainment, and miscellaneous
expenses incurred in the conduct of the business of the Company.
5. BENEFITS. Employee shall be entitled to participate in the Company's medical,
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life insurance, stock option and other benefit programs.
6. NO CONFLICTS. Except to the extent made known in writing to Company by
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Employee prior to the effective date hereof, Employee represents and warrants
that (i) Employee possesses the knowledge and skill reasonably required to
render the services contemplated hereunder in a professional and workmanlike
manner; (ii) Employee is not restricted by any other contract or other
limitation of any kind that would prevent or otherwise inhibit Employee from
complying with this Agreement or rendering the services contemplated hereunder;
(iii) in rendering the services hereunder, Employee will not use any
pre-existing work or divulge any information of any previous employer or third
party that would violate or infringe any patent, copyright, trade secret or
other proprietary rights and agrees at Employee's own expense to defend,
indemnify and hold Company harmless from any claim to the contrary; (iv) if the
services contemplated herein require Employee to obtain or maintain security or
other background clearance, then the employment contemplated herein is expressly
conditioned upon Employee's timely obtaining and maintaining such clearance
during the Term hereof; (v) Employee shall abide by Company's generally
applicable rules and regulations from time to time in effect, including any
rules governing Employee Ethics, Electronic Communications, Sexual Harassment in
the Work Place and its Alcohol & Drug Control Policy.
7. VACATION. During the Period of Employment, Employee shall be entitled to a
minimum of three weeks of annual vacation. The time at which Employee will be
absent shall be at Employee's sole discretion, provided such time is compatible
with the vacation and work schedule of other relevant employees
8. TERMINATION. Employee may terminate the Employment Period by at least three
months' prior notice to the Company The Company may terminate the Employment
Period for cause, which shall mean (a) Employee's death, (b) Employee's
disability preventing Employee from performing his obligations to the Company
for any three consecutive months; (c) acts of serious moral turpitude; gross
negligence in connection with the performance of your duties as provided for in
this agreement, which gross negligence causes or potentially could cause
material harm to the Company; fraud; the imposition of any sanctions against
Employee by regulatory agencies governing the Company or Employee with respect
to the business of the Company; material violation by Employee of any of the
rules and regulations contained in the By-Laws of the Company relating to
Employee's duties; material breach by you of any of the terms and conditions of
this Employment agreement. In determining "cause" for purposes of clause (c) of
the preceding sentence, such breach, violation, or action must continue for a
period of three days from the date of receipt of notice from the Company
specifying that the Board of Directors has determined that cause for termination
exists in accordance with the procedure set forth in the next sentence and
specifying the breach, violation, or action, provided that it shall not be cause
for termination as described in such clause if Employee, upon receipt of such
notice undertake reasonable measures to correct such breach, violation or
action. A determination that cause for termination exists, or continues to exist
after due notice as described in the preceding sentence, shall only be made by
the Company's Board of Directors at a meeting duly called, with respect to which
Employee shall have been given (i) reasonable written notice, specifying in
reasonable detail the basis for the charge that cause for termination exists and
(ii) a reasonable opportunity to contest such charge.
No termination of the Employment Period shall affect or impair Employee's
Confidentiality agreements or non-competition agreements set forth in this
agreement.
9. NON-COMPETITION.
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A. Employee acknowledges that his services to be rendered are of a special and
unusual character and have unique value to the Company, the loss of which cannot
adequately be compensated by damages in an action at law. In view of the unique
value of the services, and because of the Confidential Information to be
obtained by or disclosed to you, and as a material inducement to the Company to
enter into this agreement and to pay to you the compensation referred to herein
above and other consideration provided, Employee covenants and agrees that he
will not, during the term of his employment hereunder and for a period of one
year after he ceases for any reason to be employed pursuant to this agreement,
(i) engage in any business (the "Activities") in competition with that of the
Company or any entity (an "Affiliate") controlled by it, in the United States or
country other than the United States of America wherein the Company markets its
products or to the knowledge (actual or implied) of Employee ( as of the date of
termination or earlier) plans to market its products (the "Area"); (ii) become
associated as manager, supervisor, employee, consultant, advisor, director, or
stockholder owning more than 5% of the outstanding stock of a company or
participate in the management or direction of a company or other entity with any
person, corporation or entity, engaging in any activity competitive with the
Activities anywhere within the Area; (iii) call upon any customer or source of
the Company or any Affiliate or the promotion of any activities for any person,
corporation, or other entity, competitive with the Activities, or (iv) divert,
solicit or take away any customer or source of the Company or any Affiliate for
the purpose of engaging in any activities competitive with the Activities within
the Area.
B. Employee covenants and agrees that, if he shall violate any of his covenants
or agreements contained in this paragraph 9 , the Company shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration, or benefits which Employee directly, or indirectly
has realized and/or may realize as a result of, growing out of, or in connection
with any such violation; such remedy shall be in addition to and not in
limitation of any injunctive relief or other rights or remedies to which the
Company may be entitled at law or in equity or under this agreement.
C. Employee has carefully read and considered the provisions of this paragraph
9 and having done so, agrees that the restrictions set forth (including but
not limited to the time period of restriction and the areas of restriction) are
fair and reasonable and are reasonable required for the protection of the
interests of the Company, its officers, directors, and other employees. Employee
acknowledges that upon termination of this agreement for any reason, it may be
necessary to relocate to another area, and/or work in another type of endeavor,
and Employee agrees that this restriction is fair and reasonable and is
reasonably required for the protection of the Company.
D. In the event that, notwithstanding the foregoing, any of the provisions of
this paragraph 9 shall be held to be invalid or unenforceable, the remaining
provisions thereof shall nevertheless continue to be valid and enforceable as
though invalid or unenforceable parts had not been included therein. In the
event any provision of this Paragraph 9 relating to time period and/or areas of
restriction shall be declared by a panel of arbitrators or a court of competent
jurisdiction if such court refuses to refer such matter to arbitration, to
exceed the maximum time period or areas such panel or court deems reasonable and
enforceable, said time period and/or areas of restriction shall be deemed to
become, and thereafter be, the maximum time period and/or area which such panel
or court deems reasonable and enforceable.
E. With respect to the provisions of this paragraph 9 , Employee agrees that
damages, by themselves, are an inadequate remedy at law, that a material breach
of the provisions of this paragraph 9 would cause irreparable injury to the
aggrieved party, and that the provisions of this paragraph 9 may be
specifically enforced by injunction or similar remedy in any court of competent
jurisdiction without affecting any claim for damages, provided that any such
injunction shall either be preliminary in nature, enjoining such activity
pending the outcome of arbitration as provided for in Paragraph 15 of this
agreement, or be in assistance of the final determination of the arbitrators as
provided for in such paragraph.
10. CONFIDENTIALITY. Employee acknowledges that his duties as pursuant to this
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agreement will give him access to trade secrets, and other confidential
information of the Company, including but not limited to, product research,
design and development, marketing of the products and other information relating
to its present and future operations (all of the foregoing, whether or not it
qualifies as a "trade secret" under applicable law, is collectively called
"Confidential Information"). Employee recognizes that Confidential Information
is proprietary to the Company and gives it significant competitive advantage.
Accordingly, Employee agrees not to use or disclose any of the Confidential
Information during or after the Employment Period, except for the sole and
exclusive benefit of the Company. Upon any termination of the Employment Period,
Employee agrees to return to the Company's office all documents, computer
records, and other tangible embodiments of any Confidential Information,
including all copies thereof under possession or control of Employee. Employee
agrees that the Company would be irreparably injured by any breach of this
confidentiality agreement, that such injury would not be adequately compensable
by monetary damages, and that, accordingly, the Company may specifically enforce
the provisions of this paragraph by injunction or similar remedy by any court of
competent jurisdiction, without affecting any claim for damages, provided that
any such injunction shall either be preliminary in nature, enjoining such
activity pending the outcome of arbitration as provided for in paragraph 12 of
this agreement, or be in assistance of the final determination of the
arbitrators as provided for in such paragraph.
11. NOTICES. If either party desires to give notice to the other in connection
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with any of the terms and provisions of this agreement, said notice must be in
writing and shall be deemed given when hand delivered, delivered by such a
service as Federal Express, or 5 business days after being deposited in the
United States mail, certified mail, return receipt requested, and addressed to
the party for whom it is intended as follows:
If to Employee:
If to Company:
or to such other address as the addressee shall have communicated to the other
party in writing.
12. GOVERNING LAW AND VENUE. This Agreement shall be governed and construed in
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accordance with the laws of the State of Florida, without regard to
choice-of-law principles, as if made and to be performed solely in Florida, Any
disputes between any of the parties to it with respect to the agreements
contained in it, or as modified in the future, are to be settled by binding
arbitration conducted pursuant to the commercial arbitration rules of the
American Arbitration Association in Palm Beach County, Florida. In any such
arbitration the scope and timing of any discovery shall be determined by the
arbitrators. Such arbitration is to be the sole remedy for the settlement of
such disputes, except however, as all of the parties agree that money damages
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are inadequate to compensate for a breach of the confidentiality and
non-competition provisions of this agreement, Employee agrees that upon
application by the Company, any court of competent jurisdiction, upon a showing
sufficient to justify the entry of a temporary injunction, may enjoin any
activity allegedly in breach of such agreement pending the outcome of binding
arbitration or enter a similar order of like force and effect, or may enforce
the final determination of such arbitrators by the issuance of such an
injunction or similar order.
13. ENTIRE AGREEMENT. This agreement contains the entire agreement between the
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parties hereof with respect to the transactions contemplated herein, and
supersedes all preciously written or oral negotiations, commitments,
representations and agreements.
14. AMENDMENTS. This agreement, or any provisions hereof, may not be amended,
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changed or modified without the prior written consent of each of the parties
hereto.
IN WITNESS WHEREOF, the parties have set their hand and seal.
Company:
MAINTENANCE DEPOT, INC.
By:
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XXXXXXX X. XXXXXX, PRESIDENT
Employee:
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XXXXXX XXXX
