Exhibit 10.5
EMPLOYMENT AGREEMENT
Agreement dated this 1st day of November, 1996 by and between Xxxxxx
Xxxxxx ("Executive") and FineLine Properties, Inc. (the "Company").
WHEREAS the Company desires to employ Executive, and Executive desires
to accept employment with the Company, subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Period of Employment. The Company shall employ Executive, and
Executive shall serve the Company during the period commencing on November 1,
1996, and continuing through and including June 1, 2001 (the "Term"). The Term
shall automatically be extended by one (1) additional year, unless, at
least sixty (60) days prior to June 1, 2001 or any anniversary
thereafter, the Company shall deliver to Executive, or Executive shall
deliver to the Company, written notice that the Term shall not be so
extended.
2. Duties and Responsibilities.
(a) During the Term, Executive shall be employed by the Company as Chief
Operating and Executive Officer of The Wedge and the Executive's
employment with the Company shall be full-time and exclusive. During the
Term, Executive shall, except during periods of vacation, sick leave, or
other duly authorized leave of absence, devote the whole of Executive's
time, attention, skill, and ability during usual business hours (and
outside those hours when reasonably necessary to Executive's duties
hereunder) to the faithful and diligent performance of such duties and
the exercise of such powers as may from time to time be assigned to or
vested in Executive by the Company's Board of Directors or by any
officer of the Company superior to Executive. Executive acknowledges and
agrees that Executive may be required, without additional compensation,
to perform
services for any business entity controlling, controlled by, or under
common control with the Company (such business entities hereinafter
individually and collectively, "Affiliates") and to accept such office
or position with any Affiliate as the Board of Directors may require,
including, but not limited to, service as an officer or director of the
Company or any Affiliate. Executive shall comply with all applicable
policies of the Company and Affiliates.
(b) Executive's services shall be performed at the Company's offices in
Kent, Ohio as well as at such other locations and subject to such travel
requirements as reasonably necessary to the performance of Executive's
duties hereunder.
3. Compensation.
(a) During the Term, as compensation for services rendered hereunder and
in
consideration of this Agreement, the Company shall pay Executive a
salary, in accordance with the Company's then-prevailing payroll
practices, at the annual rate of $55,000.00 (fifty-five thousand USD),]
or such greater amount as the Company may from time to time and in its
sole discretion determine.
(b) During the Term, as additional compensation, Executive shall be
entitled to
participate in and receive all benefits under any welfare benefit plan
or program (including, without limitation, medical, dental, disability,
group life (including accidental death and dismemberment) and business
travel insurance plans and programs), any retirement savings plan or
program (including, without limitation, 401(k) and pension), and such
other perquisites of office as the Company may, from time to time and in
its sole discretion, make available generally to employees of similar
rank as Executive. Such participation shall be subject to the terms and
conditions of such plans or programs, including, but not limited to,
such generally applicable eligibility provisions as may be in
effect from time to time.
(c) During the Term, as additional compensation, Executive shall be
entitled to participate in the Company's Supplemental Executive
Retirement Plan ("SERP") pursuant to the terms and conditions thereof.
(d) The Company shall reimburse Executive for all reasonable, ordinary,
and necessary business expenses incurred in the performance of
Executive's duties hereunder in accordance with and subject to the terms
and conditions of the Company's then-prevailing expense policy. As a
condition precedent to obtaining such reimbursement, Executive shall
provide to the Company any and all statements, bills, or receipts
evidencing the expenses for which Executive seeks reimbursement, and
such other related information or materials as the Company may from time
to time reasonably require.
4. Termination. Unless Executive's employment is terminated pursuant to
this Paragraph 4, the Company shall continue to employ Executive and
Executive shall continue to serve the Company throughout the Term.
(a) This Agreement shall terminate automatically upon Executive's death.
(b) Upon Executive's "Disability", the payment of benefits under the
Company's short-term and long-term disability insurance programs, if
any, shall satisfy the Company's obligations under the foregoing
Paragraph 3(a). For purposes of this Agreement, Executive shall be
deemed to be under a disability if Executive shall be unable, by virtue
of illness or physical or mental incapacity or disability (from any
cause or causes whatsoever), to perform Executive's essential job
functions hereunder, whether with or without reasonable accommodation,
in substantially the manner and to the extent required hereunder prior
to the commencement of such disability, for a period exceeding 180 days.
In the event Executive shall remain under a Disability for a period
exceeding 270 days, the Company shall have the right to terminate
Executive's employment hereunder at the end of any calendar month during
the continuance of such disability upon at least thirty (30) days prior
written notice to Executive.
(c) The Company shall have the right to terminate Executive's employment
at any time for "Cause". For purposes of this Agreement, Cause shall
include: (i) material default or other material breach by Executive of
Executive's obligations hereunder; (ii) failure by Executive to perform
diligently and competently Executive's duties hereunder; or
(d) In the event of termination, the Company shall (i) pay to Executive
an amount equal to the lesser of
(A) 8 months' salary from the date of termination, and
(B) Executive's salary for the remainder of the Term, such amount
to be paid in accordance with the Company's then-prevailing payroll
practices, and (ii) continue Executive's participation, if any, in such
group medical, hospitalization and dental plans or programs as were in
place immediately prior to such termination, for a period equal to
the lesser of (A) 8 months from the date of termination, and (B) the
remainder of the Term.
(e) Upon termination of Executive's employment pursuant to any of the
foregoing Paragraphs 4(a), (b), (c), or (d), or upon expiration of the
Term, any right or benefit accrued by Executive or to which Executive
had become entitled pursuant to this Agreement prior to such termination
or expiration (other than payment of salary with respect to periods
after such termination or expiration), and any Company obligation with
respect to any such right or benefit, shall not be extinguished by
reason of such termination or expiration and, together with any salary
earned but unpaid as of the date of termination or expiration and any
unpaid reimbursable expenses outstanding as of such date, shall be paid
to Executive or Executive's estate, less any outstanding amounts
previously advanced by the Company to or on behalf of Executive.
(f) The payments and benefits (if any) required to be provided to
Executive pursuant to this Paragraph 4 shall be in full and complete
satisfaction of any and all obligations owing to Executive pursuant to
this Agreement.
(g) In the event of resignation and or termination the Company shall pay
to the Executive all salary due and owing in full in accordance with the
Company's financial ability to do same. The Company shall either make
such payment in total, or in monthly increments within the financial
ability of the Company to do same, with such schedule to be provided
to the Executive within three weeks of such resignation and or
termination.
(f) In the event the Company's financial position enables it to do so,
in consideration of the Company's obligations to suppliers, investors
and other business interests, the Company shall at it option, revert
payment due to the Executive to the date of this Agreement.
5. Confidential Information. Both during and after the Term, Executive
shall not divulge or communicate to any person, corporation,
governmental agency, or other entity (except in performing Executive's
duties hereunder), or use for Executive's own purposes, any trade secret
or confidential commercial information, or any other information,
knowledge, or data of the Company or any Affiliate which is not
generally known to the public (including, but not limited to,
information relating to research, product development, manufacturing or
manufacturing processes, maintenance or repair processes, purchasing,
product or material costs, sales or sales strategies or prospects,
pricing or pricing strategies, advertising or promotional programs,
product information, or mailing or customer lists), and shall use
Executive's best efforts to prevent the publication or disclosure by any
other person or entity of any such secret, information, knowledge, or
data. While Executive is employed by the Company, all documents and
objects made, compiled, received, held, or used by Executive in
connection with the business of the Company shall remain the Company's
property, and shall be delivered by Executive to the Company upon the
termination of Executive's employment, for whatever reason, or at any
earlier time requested by the Company. It is understood that Executive
shall retain ownership of Executive's personal property, including
Executive's private papers not containing any trade secret or
confidential commercial information, or any other information,
knowledge, or data of the Company or any Affiliate.
6. Unfair Competition.
(a) While Executive is employed by the Company, and during any period,
if any, during which the Company is making payments to Executive
pursuant to the foregoing Paragraph 4(d), Executive shall not, directly
or indirectly, whether or not for compensation, and whether or not as
an employee, be engaged in or have a financial interest in any other
business, continue or assume any other corporate affiliations, or
pursue any other commercial activities, duties, or pursuits whatsoever
without the prior written consent of the Company when said activities
are in competition with the business or interests of the Company.
(b) As a condition of employment with the Company, and as a material
inducement to the Company to employ Executive, Executive agrees that for
a period of one (1) year after the later of (i) termination of
Executive's employment, for whatever reason, and (ii) the conclusion of
the period, if any, during which the Company is making payments to
Executive pursuant to the foregoing Paragraph 4(d), Executive shall not,
directly or indirectly, whether or not for compensation, and whether or
not as an employee, be engaged in or have any financial interest in any
business competing with or which may compete with the business of the
Company (or with any business of any Affiliate for which the Executive
performed services hereunder) within any state, region or locality in
which the Company or such Affiliate is then doing business or marketing
its products, as the business of the Company or such Affiliates may then
be constituted.
(c) Executive agrees and acknowledges that, by virtue of Executive's
employment with the Company, Executive shall have access to and maintain
an intimate knowledge of the Company's activities and affairs, including
trade secrets and confidential commercial information, and other
confidential matters. As a result of such access and knowledge,
and because of the special, unique, and extraordinary services that
Executive is capable of performing for the Company or one of its
competitors, Executive acknowledges that the services to be rendered by
Executive pursuant to this Agreement are of a character giving them a
peculiar value, the loss of which cannot adequately or reasonably be
compensated by money damages. Consequently, Executive agrees that any
breach or threatened breach by Executive of Executive's obligations
under this Paragraph 6, or of Paragraphs 5 or 7 of this Agreement, would
cause irreparable injury to the Company, and that the Company shall be
entitled to (i) preliminary and permanent injunctions enjoining
Executive from violating such provisions, and (ii) money damages in the
amount of fees, compensation, benefits, profits or other remuneration
earned by Executive or any competitor as a result of any such breach,
together with interest, and costs and attorneys' fees expended to
collect such damages or secure such injunctions. Nothing in this
Agreement, however, shall be construed to prohibit the Company from
pursuing any other remedy, the Company and Executive having agreed that
all such remedies shall be cumulative.
(d) Executive acknowledges that the limitations set forth in this
Paragraph 6 shall not prevent Executive from earning a livelihood after
Executive leaves the Company's employ, but merely prevents unfair
competition against the Company for a limited period.
7. Solicitation of Employees. Executive agrees that for a period of one
(1) year after the later of (a) termination of Executive's employment,
for whatever reason, and (b) the conclusion of the period, if any,
during which the Company is making payments to Executive pursuant to the
foregoing Paragraph 4(d), Executive shall not, directly or indirectly,
employ any person who was employed by the Company or any Affiliate or
induce such person to accept employment other than with the Company or
any Affiliate.
8. Inventions. Executive hereby agrees that any and all improvements,
inventions, discoveries, formulae, processes, methods, or designs, and
any documents, things, or information relating thereto (individually and
collectively, "Work Product") within the scope of any business of the
Company or any Affiliate which Executive may conceive or make, or may
have conceived or made during Executive's employment with the
Company, shall be and are the sole and exclusive property of the
Company, and that Executive shall, whenever requested to do so by the
Company (whether during Executive's employment or thereafter), at the
Company's expense, execute any and all applications, assignments, or
other instruments, and do all other things (including giving
testimony in any legal proceeding) which the Company may deem necessary
or appropriate in order to (a) apply for, obtain, maintain, enforce, or
defend letters patent of the United States or any other country for any
Work Product, or (b) assign, transfer, convey, or otherwise make
available to the Company any right, title or interest which Executive
might otherwise have in any Work Product. Executive shall promptly
communicate, disclose, and, upon request, report upon and deliver all
Work Product to the Company, and shall not use or permit any Work
Product to be used for any purpose other than on behalf of the Company,
whether during Executive's employment or thereafter.
9. Arbitration.
(a) Any dispute or controversy between the Company and Executive
relating to this Agreement (except any dispute relating to the foregoing
Paragraphs 5, 6, or 7) or relating to or arising out of Executive's
employment with the Company, shall be settled by binding arbitration in
the City of Kent, State of Ohio, pursuant to the governing rules of
the American Arbitration Association. Judgment upon any resulting
arbitration award may be entered in any court of competent jurisdiction.
(b) Notwithstanding anything herein to the contrary, the Company shall
not be required to arbitrate any dispute arising between it and
Executive relating to the foregoing Paragraphs 5, 6, or 7, but shall
have the right to institute judicial proceedings in a court of competent
jurisdiction within the State of Ohio, in the district or county in
which the Company's principal offices are located with respect to such
dispute or claim. Executive hereby consents to, and waives any objection
to, the personal jurisdiction and venue of the aforesaid courts, and
waives any claim that the aforesaid courts constitute an inconvenient
forum. If such judicial proceedings are instituted, the parties agree
that such proceedings shall not be stayed pending the outcome of any
arbitration proceedings hereunder.
10. Additional Obligations. Both during and after the Term, Executive
shall, upon reasonable notice, furnish the Company with such information
as may be in Executive's possession, and cooperate with the Company, as
may reasonably be requested by the Company (and, after the Term, with
due consideration for Executive's obligations with respect to any new
employment or business activity) in connection with any litigation in
which the Company or any Affiliate is or may become a party. The Company
shall reimburse Executive for all reasonable expenses incurred by
Executive in fulfilling Executive's obligations under this Paragraph 10.
11. Notice. Any notice or other communication required or permitted
under this Agreement by either party hereto to the other shall be in
writing, and shall be deemed effective upon
(a) personal delivery, if delivered by hand,
(b) three days after the date of deposit in the mails, postage prepaid,
if mailed by certified or registered mail, or
(c) the next business day, if sent by a prepaid overnight courier
service, and in each case addressed as follows:
If to Executive:
Xxxxxx Xxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
If to the Company:
FineLine Properties, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
Either party may change the address or addresses to which notices are to
be sent by giving notice of such change of address in the manner
provided by this Paragraph 11.
12. Entire Agreement. This Agreement represents the entire agreement
between the Company and Executive with respect to Executive's employment
with the Company, and supersedes and is in full substitution for any and
all prior agreements or understandings, whether oral or written,
relating to Executive's employment.
13. Amendment. This Agreement may not be canceled, changed, modified, or
amended orally, and no cancellation, change, modification or amendment
hereof shall be effective or binding unless in a written instrument
signed by the Company and Executive. A provision of this Agreement may
be waived only by a written instrument signed by the party against whom
or which enforcement of such waiver is sought.
14. No Waiver. The failure at any time either of the Company or
Executive to require the performance by the other of any provision of
this Agreement shall in no way affect the full right of such party to
require such performance at any time thereafter, nor shall the
waiver by either the Company or Executive of any breach of any provision
of this Agreement be taken or held to constitute a waiver of any
succeeding breach of such or any other provision of this Agreement.
15. Assignment. This Agreement is binding on and for the benefit of the
Company and Executive and their respective successors, heirs, executors,
administrators, and other legal representatives. Neither this Agreement
nor any right or obligation hereunder may be sold, transferred,
assigned, or pledged by the Company (except to an Affiliate) or by
Executive without the prior written consent of the other. However,
nothing in this Agreement shall preclude the Company from consolidating
or merging into or with, or transferring all or substantially all of its
assets to, another entity which assumes this Agreement and all
obligations and undertakings of the Company hereunder.
16. Interpretation and Severability. In the event any provision of this
Agreement, or any portion thereof, is determined by any arbitrator or
court of competent jurisdiction to be unenforceable as written, such
provision or portion thereof shall be interpreted so as to be
enforceable. In the event any provision of this Agreement, or any
portion thereof, is determined by any arbitrator or court of competent
jurisdiction to be void, the remaining provisions of this Agreement
shall nevertheless be binding upon the Company and Executive with the
same effect as though the void provision or portion thereof had been
severed and deleted.
AGREED TO THIS 1st DAY OF NOVEMBER, 1996, BY AND BETWEEN;
THE EXECUTIVE:
s/s Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
THE COMPANY:
s/s Xxxxxx Xxxxx
---------------------------
(Duly Authorized Officer)
FineLine Properties, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
EMPLOYMENT AGREEMENT AMENDMENT
Agreement Amendment dated this 22nd day of November, 1996 by and between
Xxxxxx Xxxxxx ("Executive") and FineLine Properties, Inc. (the "Company").
WHEREAS the Company desires to retain the Executive, and Executive
desires to continue association with the Company, subject to the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Period of Employment Modification. It is mutually agreed that the
Employment Agreement dated November 1, 1996 shall be hereby modified
and changed to reflect that the Executive shall serve as a member of the
Board of Directors with the employment as executive in the Company
deferred due to modification of the Company's operating plans.
2. Duties., Responsibilities and Compensation.
(a) During the Term, Executive shall serve in the capacity as a member
and Director on the Board and shall attend Board meetings, vote on Board
matters and conduct himself in accordance with the Company's bylaws. In
accordance with this change and modification, the Executive shall not
participate in any Company benefit plans, including but not limited to
welfare benefit plans or program (including, but not limited to medical,
dental, disability, group life [ including accidental death and
dismemberment, business travel insurance plans and programs], retirement
savings plan or program [ including without limitation 401(k) and
pension] and such other perquisites of office as the Company may from
time to time an in its sole discretion make available generally to
employees of similar rank as Executive. This Agreement also excludes
inclusion in participation in the Company's Supplemental Executive
Retirement Plan ("SERP"). The Executive shall serve as President of The
Wedge, a product and subsidiary of the company and shall be entitled to
the compensation and benefits as indicated in the original Employment
Agreement if and when said subsidiary of the Company assumes operation.
(b) The Company shall reimburse Executive for all reasonable, ordinary,
and necessary business expenses incurred in the performance of
Executive's duties hereunder in accordance with and subject to the
terms and conditions of the Company's then-prevailing expense policy. As a
condition precedent to obtaining such reimbursement, Executive shall
provide to the Company any and all statements, bills, or receipts
evidencing the expenses for which Executive seeks reimbursement, and
such other related information or materials as the Company may from
time to time reasonably require.
3. Other Provisions. All other provisions and terms of the original
Employment Agreement with respect to Confidential Information - Unfair
Competition - Arbitration - Additional Obligations - Notice - Entire
Agreement - Amendment - No Waiver - Assignment - Interpretation and
Severability shall remain in force.
AGREED TO THIS 22nd DAY OF NOVEMBER, 1996,BY AND BETWEEN;
THE EXECUTIVE:
s/s Xxxxxx Xxxxxx
---------------------
Xxxxxx Xxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
THE COMPANY:
s/s Xxxxxx Xxxxx
----------------------
(Duly Authorized Officer)
FineLine Properties, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
