EMPLOYMENT AGREEMENT
This Agreement, entered in to this 2nd day of January 2006, is by and
between MCR Printing and Packaging, Inc., a California corporation
(hereinafter referred to as the "Company"), Liberty Diversified Holdings,
Inc. (Parent Company), and Xxxxx Xxxxxxx (hereinafter referred to as
"Employee") under the following terms and conditions:
RECITALS:
A. The Company and Employee desire to set forth the terms and
conditions on which (i) the Company shall employ Employee, (ii) Employee
shall render services to the Company or a subsidiary or parent of the
Company, and (iii) the Company shall compensate Employee for such services
to the Company; and
B. In connection with the employment of Employee by the Company, the
Company desires to restrict Employee's rights to disclose certain
confidential information and to compete with the business of the Company.
C. MCR Printing and Packaging, Inc is a wholly owned subsidiary of
the Parent Company Liberty Diversified Holdings, Inc.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Employee and Employee hereby accepts
employment with the Company upon the terms and conditions hereinafter set
forth.
2. TERM
2.1 Initial Term. The term of this Agreement shall be for a
period commencing the date hereof through December 31, 2010, subject,
however, to prior termination as provided herein below, in Section 6.
2.2 Effective Date. The effective date of this Agreement shall
be January 3, 2006.
3. COMPENSATION
3.1 Basic Cash Compensation. For all services rendered by
Employee under this Agreement, except as provided in subsection 3.2, below,
the Company shall pay Employee during the term hereof a monthly cash
compensation of $25,000 per month.
3.2 Withholding Taxes. All compensation shall be subject to
customary withholding tax and other employment taxes as are required with
respect to compensation paid by a corporation to an employee.
4. DUTIES AND RESPONSIBILITIES
4.1 Full-time Employment. Employee shall, during the term of
this Agreement, devote his full attention and expend his best efforts,
energies and skills, on a full-time basis, to the business of the Company
and/or the Parent Company and/or any corporation controlled by the Parent
Company any time during the term of this Agreement (each a "Subsidiary".)
For purposes of this Agreement, the term "Company" shall mean the Company,
all Subsidiaries, and the Parent Company.
4.2 Offices. Employee will be named or remain CEO and President
of the subsidiary company MCR Printing and Packaging, Inc. (MCR). Employee
will report directly to the Liberty Diversified Holdings, Inc. Board of
Directors . Employee will be responsible for overseeing all operations of
MCR Printing and Packing, Inc. In the performance of all of his
responsibilities hereunder, Employee shall be subject to all of the
Company's policies, rules, and regulations applicable to its employees of
comparable status and shall report directly to, and shall be subject to,
the direction and control of Board and shall perform such duties as shall
be assigned to him. In performing such duties, Employee will be subject to
and abide by, and will use his best efforts to cause other employees of the
Company to be subject to and abide by, all policies and procedures
developed by the Board or senior management of the Company.
5. ADDITIONAL EMPLOYEE COVENANTS
5.1 Confidential Information. Employee recognizes and
acknowledges that certain information, including, but not limited to, (i)
information pertaining to the financial condition of the Company; (ii) its
systems and methods of doing business; (iii) its agreements with customers,
suppliers or selling or marketing agents, including lists of customers,
selling agents, and marketing agents; or (iv) other aspects of the business
of the Company which are sufficiently secret to derive economic value from
not being disclosed (hereinafter "Confidential Information") may be made
available or otherwise come into the possession of Employee by reason of
his employment with the Company. Accordingly, Employee agrees that he will
not (either during or after the term of his employment with the Company)
disclose any Confidential Information to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever or make
use to his personal advantage or to the advantage of any third party, of
any Confidential Information, without the prior written consent of the
Board. Employee shall, upon termination of employment, return to the
Company all documents that reflect Confidential Information (including
copies thereof). Notwithstanding anything heretofore stated in this
subsection 5.1, Employee's obligations under this subsection 5.1 shall not,
after termination of Employee's employment with the Company, apply to
information which has become generally available to the public without any
action or omission of Employee.
5.2 Records. All files, records, memoranda, and other documents
regarding former, existing, or prospective customers of the Company or
relating in any manner whatsoever to Confidential Information or the
business of the Company (collectively "Records"), whether prepared by
Employee or otherwise coming into his possession, shall be the exclusive
property of the Company. All Records shall be immediately placed in the
physical possession of the Company upon the termination of Employee's
employment with the Company, or at any other time specified by the Board.
The retention and use by the Employee of duplicates in any form of Records
after termination of Employee's employment with the Company is prohibited.
5.3 Remedies. Employee hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Employee of any of the terms or provisions
of this Section 5, and Employee therefore agrees that the Company shall be
entitled to an injunction restraining Employee from engaging in any
activity constituting such breach or threatened breach. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach
or threatened breach, including, but not limited to, the recovery of
damages from Employee and, if Employee is an employee of the Company, the
termination of his employment with the Company in accordance with the terms
of this Agreement.
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6. TERMINATION
6.1 Termination by Company. The Company has the right to
terminate Employee's employment under this Agreement, by notice to Employee
in writing at any time (i) for "Cause," as defined below; and (iii) due to
the disability of the Employee. Any such termination shall be effective
upon the giving of notice pursuant as provided herein. This Agreement
shall terminate automatically upon Employee's Death. For purposes of this
Agreement "Cause" shall exist if Employee (i) is adjudicated guilty of
illegal activities of consequence by a court of competent jurisdiction;
(ii) commits any act of fraud or intentional misrepresentation; (iii) has,
in the reasonable judgment of the Board, engaged in serious misconduct,
which conduct has, or would if generally known, materially adversely affect
the good will or reputation of the Company and which conduct the Employee
has not cured or altered to the satisfaction of the Board within ten (10)
days following notice by the Board to the Employee regarding such conduct;
(iv) breaches any of the provisions of this Agreement and which breach the
Employee has not cured or altered to the satisfaction of the Board within
ten (10) days following notice by the Board to the Employee regarding such
breach; or (v) has made any material misrepresentation to the Company.
6.2 Termination by Employee. Employee has the right to
terminate his employment under this Agreement for any reason, upon 30 days
prior written notice to the Company.
6.3 Compensation After Termination .
(a) If Employee's employment under this Agreement is
terminated (i) by the Company; (ii) by the Employee; or (iii) through
expiration of the employment period set forth in this Agreement, then the
Company shall have no further obligation hereunder or otherwise with
respect to Employee's employment from and after the termination or
expiration date, except payment of Employee's salary accrued through the
date of termination or expiration.
6.4 Return of Records. In the event of termination of
employment with the Company, Employee agrees to deliver promptly to the
Company all equipment, notebooks, documents, memoranda, reports, files,
samples, books, correspondence, lists, or other written or graphic records,
and the like, relating to the Company's business, which are or have been in
his possession or under his control.
7. EXPENSES
7.1 Car Expenses. Company shall provide Employee with an
automobile and pay for all reasonable automobile-related costs consistent
with previous practice between Company and Employee.
7.2 Other Reimbursable Expenses. Employee shall be entitled to
reimbursement
of other reasonable expenses, including travel expenses, actually incurred
in the course of his employment.
8. THE COMPANY'S AUTHORITY
Employee agrees to observe and comply with the reasonable rules
and regulations of the Company as adopted by the Board either orally or in
writing respecting performance of his duties and to carry out and perform
orders, directions, and policies stated by the Board, to him from time to
time, either orally or in writing.
9. PAID VACATION; SICK LEAVE; MEDICAL INSURANCE
9.1 Paid Vacation. Employee shall be entitled to a paid
vacation of three weeks
each year.
9.2 Sick Leave. The Employee shall be entitled to reasonable
periods of paid sick leave during the term of this Agreement as determined
by the Board or pursuant to written policies established by the Board.
9.3 Health Insurance. Company shall provide Employee, at the
Company's expense, participation in group medical, accident and health
insurance plans with coverage for Employee, spouse, and dependents.
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10. ASSIGNMENT
10.1 Personal Contract of Employee. This Agreement is a personal
contract, and the duties and obligations of the Employee hereunder may not
be transferred or assigned, except as otherwise expressly authorized in
writing by the Company.
10.2 Assignment by Company. The Company shall have the right to
assign this Agreement to any successor of substantially all of its business
or assets, and any such successor shall be bound by all of the provisions
hereof.
11. NONCOMPETITION
11.1 Noncompetition Provisions. During his employment, and for a
period of one year after the termination of his employment (the "Noncompete
Term"), Employee shall not, directly or indirectly, whether as an employee,
director, owner, 5% or greater stockholder, employee, or partner (limited
or general):
(a) engage in or have any interest in, any business that
competes with the business of the Company during such period, including the
business of the Company (MCR Printing and Packaging and any business
related to packaging ), in any geographic location(s) in which the Company
is conducting business during the Noncompete Term (the "Noncompete Area").
The Company may, in its sole discretion, give Employee written approval(s)
to personally engage in any activity or render any services referred to in
this Section 11 if the Company secures written assurances (satisfactory to
the Company and its counsel) from Employee, or any prospective employer(s)
of Employee, that the integrity of the Company's Confidential Information
will not in any way be jeopardized by such activities, provided that the
burden of so establishing the foregoing to the satisfaction of the Company
and its counsel shall be upon Employee;
(b) offer, within the Noncompete Area and during the
Noncompete Term, any of the products or services similar or in competition
with those offered by the Company; or
(c) otherwise compete or interfere with the activities of
the Company within the Noncompete Area and during the Noncompete Term.
11.2 Remedies. Employee hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Employee of any of the terms or provisions
of this Section 11, and Employee therefore agrees that the Company shall be
entitled to an injunction restraining Employee from engaging in any
activity constituting such breach or threatened breach. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company at law or in equity for such breach
or threatened breach, including, but not limited to, the recovery of
damages from Employee and, if Employee is an employee of the Company, the
termination of his employment with the Company in accordance with the terms
of this Agreement.
12. MISCELLANEOUS
12.1 Notices. All notices, requests, demands, and other
communications required to or permitted to be given under this Agreement
shall be in writing addressed to the other party at the address set forth
below and shall be conclusively deemed to have been duly given when:
(a) Hand-delivered to the other party;
(b) Received when sent by telex or facsimile at the address
and number set forth below;
(c) The next business day after same have been deposited
with a national overnight delivery service, shipping prepaid, addressed to
the parties as set forth below with next-business day delivery guaranteed,
provided that the sending party receives a confirmation of delivery from
the delivery service provider; or
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(d) Three business days after mailing if mailed from within
the continental United States by registered or certified mail, return
receipt requested, addressed to the parties as set forth below.
Company: Xxxxx Xxxxxx Xxxxx
Xxxx , Xxxxxxxxxx 00000
Employee: ____________________________
____________________________
Facsimile Number ( )
12.2 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or
parties will be entitled to recover reasonable attorneys' fees and other
costs incurred in that action or proceeding, in addition to any other
relief to which it or they may be entitled.
12.3 Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between or among the parties pertaining to
the subject matter contained in it and supercedes all prior and
contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement will
be binding unless executed in writing by all the parties or the applicable
parties to be bound by such amendment. No waiver of any of the provisions
of this Agreement will constitute a waiver of any other provision, whether
or not similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making the
waiver.
12.4 Governing Law. This Agreement and the rights and duties of
the parties hereto shall be construed and determined in accordance with the
laws of the State of California, and any and all actions to enforce the
provisions of this Agreement shall be brought in a court of competent
jurisdiction in Orange County, in the State of California, and in no other
place.
12.5 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of final jurisdiction, it is the
intent of the parties that all other provisions of this Agreement be
construed to remain fully valid, enforceable, and binding on the parties.
12.6 Effect of Headings. The subject headings of the sections
and subsections of this Agreement are included for convenience only and
will not affect the construction of any of its provisions.
12.7 Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts and all such counterparts taken
together shall be deemed to constitute one instrument. Delivery of an
executed counterpart of this Agreement by facsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by facsimile
also shall deliver a manually executed counterpart of this Agreement, but
the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, or binding effect of this Agreement.
12.8 Survival of Covenants, Etc. All covenants, representations
and warranties made herein shall survive the making of this Agreement and
shall continue in full force and effect until the obligations of this
Agreement have been fully satisfied.
12.9 Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms
and conditions of this Agreement, that each party has had the benefit of
counsel, or has been advised to obtain counsel, and that each party has
freely agreed to be bound by the terms and conditions of this Agreement.
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13. CORPORATE APPROVALS
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by
the Board, is not in conflict with any Bylaw or other agreement, and will
be a binding obligation of the Company, enforceable in accordance with its
terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
EMPLOYEE:
____________________________________
Xxxxx Xxxxxxx
THE COMPANY: MCR Printing and Packaging, Inc
By Xxxxx Xxxxxxx, President
PARENT COMPANY: Liberty Diversified Holdings, Inc.
APPROVAL : By Xxx Xxxxxxxx, CEO
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