EXHIBIT 10.2
Employment Agreement, dated June 10, 1996, between
Xxxxxx X. Xxxxxx and the Company
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 10th day of June, 1996, by and between
INTERNATIONAL BUILDING CONCEPTS, LTD., a Minnesota corporation (the
"Corporation"), and XXXXXX X. XXXXXX, an adult resident of Minnesota (the
"Employee").
RECITAL:
WHEREAS, the Corporation desires to employ the Employee and to set forth
the principal terms and conditions of the Employee's employment, and the
Employee desires to be employed by the Corporation, on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the recital and the mutual promises and
agreements contained in this Agreement, the parties agree as follows:
1. EMPLOYMENT. The Corporation hereby employs the Employee and the
Employee hereby accepts employment with the Corporation on the terms and
conditions set forth in this Agreement.
2. TERM AND RENEWAL. The Employee's employment by the Corporation shall
commence on the date of this Agreement and shall continue for a period of two
(2) years, unless such employment is terminated earlier as provided herein. The
term of this Agreement shall renew automatically for successive one (1) year
terms unless a party gives notice to the other not less than thirty (30) days
prior to the end of the term that this Agreement is not to be renewed.
3. DUTIES. The Employee shall be engaged as President of the Corporation.
The Employee will faithfully and to the best of his ability perform the duties
as reasonably assigned from time to time by the Corporation's Board of
Directors. The Employee agrees to devote his entire business time, energy and
skills to properly discharge the duties of such employment and to participate in
the active management of the Corporation while so employed hereunder.
4. COMPENSATION.
(a) The Employee's compensation for the services performed under this
Agreement and for Employee's covenants and agreements hereinafter set forth
shall be a salary of Ninety-Six Thousand Dollars ($96,000) per year. The
Employee's salary may be increased at the sole discretion of the Corporation's
Board of Directors.
(b) As additional compensation, the Employee shall be entitled to the
fringe benefits described in Paragraph 5 below and may, in the sole discretion
of the Corporation's Board of Directors, receive such additional compensation,
salary, bonus or other benefits as the Corporation's Board of Directors shall
determine.
5. FRINGE BENEFITS. The Employee shall have the right to participate in
the insurance and other fringe benefit plans generally provided by the
Corporation to its officers, subject, however, to the Employee's qualification
for participation in such benefit plans pursuant to the terms and conditions
under which such benefit plans are offered.
6. VACATION. The Employee shall be entitled to four (4) weeks of paid
vacation during each calendar year during which this Agreement remains in
effect. Any vacation time not used during any such calendar year may not be
carried forward to any succeeding calendar year and shall be forfeited. No
vacation may be taken in advance. The Employee shall not be entitled to receive
any payment in cash for vacation time remaining unused at the end of any year or
upon termination of this Agreement.
7. NONCOMPETITION. The parties also acknowledge and agree that the
Corporation's customer contacts and relations are established and maintained at
great expense and that the Employee, by virtue of employment under this
Agreement, will have unique and extensive exposure to and personal contact with
the Company's customers and that the Employee will be able to establish a unique
relationship with those individuals that will enable him, both during and after
employment, to unfairly compete with the Corporation. In consideration of the
employment by the Corporation of the Employee, and in consideration of the
compensation provided to the Employee by the Corporation under this Agreement,
the Employee agrees that he shall not, at any time during the term of this
Agreement, nor for a period of two (2) years after the Employee ceases to be
employed by the Corporation, (a) directly or indirectly, engage in or become
interested in any other business or other entity other than the Corporation
(whether as owner, partner, trustee, beneficiary, stockholder, officer,
director, employee, independent contractor, agent, servant, consultant, lessor,
lessee or otherwise; provided, however, that ownership of less than ten percent
(10%) interest in a corporation whose shares of stock are traded in a recognized
stock exchange or traded in the over-the-counter market shall not be deemed a
violation of this paragraph) that manufactures, assembles, distributes, sells or
markets products (including replacement parts) identical or similar to any
products currently or previously offered in connection with the Corporation's
business which competes with the Corporation's business, and/or (b) in any
manner induce, attempt to induce or assist others to induce any customer,
client, employee, or any other person or entity having a business or employment
relationship with the Corporation to terminate such relationship, or do anything
to interfere with the relationship of the Corporation with such person or
entity.
8. CONFIDENTIAL INFORMATION. The parties agree that the Corporation's
customers, business connections, agreements, customer lists, procedures,
operations, business software and computer programs and printouts, techniques,
financial information and other aspects of the business are established at great
expense and protected as confidential information and provide the Corporation
with a substantial competitive advantage in conducting its business. The
parties further agree that by virtue of the Employee's employment with the
Corporation, the Employee will have access to, and be entrusted with, secret,
confidential and proprietary information, and that the Corporation would suffer
great loss and injury if the Employee would disclose this
information or use it to compete with the Corporation. Therefore, in
consideration of the compensation and other benefits to be provided to the
Employee under this Agreement, the Employee agrees that during the term of
his employment, and for a period of two (2) years after the termination of
the Employee's employment with the Corporation, the Employee shall not,
directly or indirectly, either individually or as an employee, agent,
partner, shareholder, consultant or in any other capacity, use or disclose,
or cause to be used or disclosed, any secret, confidential or proprietary
information acquired by the Employee during his employment with the
Corporation, whether owned by the Corporation prior to or discovered and
developed by the Corporation subsequent to the Employee's employment, and
regardless of the fact that the Employee may have participated in the
discovery or development of such information.
9. RELIEF FOR VIOLATIONS. The Employee covenants and agrees that if
Employee shall violate any of the covenants and agreements under Paragraph 7
and/or Paragraph 8 or both, the Corporation shall be entitled to an accounting
and repayment of all profits, compensation, commissions, remuneration or
benefits which the Employee directly or indirectly has realized and/or may
realize as the result of, arising out of or in connection with any such
violation. The Employee acknowledges that an irreparable injury may result to
the Corporation and its business in the event of a breach of the Employee's
covenants contained in Paragraph 7 and/or Paragraph 8 of this Agreement. The
Employee also acknowledges and agrees that the damages or injuries which the
Corporation may sustain as a result of the Employee's breach of Paragraphs 7
and/or Paragraph 8 of this Agreement are difficult to ascertain and money
damages alone may not be an adequate remedy to the Corporation. The Employee,
therefore, agrees that if a controversy arises concerning the rights or
obligations of a party under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance and the
Corporation shall also be entitled to any injunctive relief necessary to prevent
or restrain any violation by the Employee or any persons directly or indirectly
acting for or with the Employee of the provisions of Paragraphs 7 and/or
Paragraph 8 of this Agreement. Such remedies, however, shall be cumulative and
non-exclusive and shall be in addition to any other remedy to which the parties
may be entitled.
10. REASONABLE RESTRICTIONS. The Employee agrees that terms and
conditions of Paragraphs 7, 8 and 9 of this Agreement are reasonable and
necessary for the protection of the Corporation's business, trade secrets and
confidential information and to prevent damage or loss to the Corporation as the
result of action taken by the Employee. The Employee acknowledges that the
consideration provided for herein is sufficient to fully and adequately
compensate the Employee for agreeing to the restrictions set forth in Paragraphs
7, 8 and 9 of this Agreement. The Employee acknowledges that he could continue
to actively pursue his career and earn sufficient compensation in business
without breaching any of the restrictions contained in this Agreement.
11. TERMINATION.
(a) Except as otherwise set forth herein, if either party desires to
terminate the Employee's employment with the Corporation, such party shall give
written notice of termination to the other party not less than thirty (30) days
prior to the effective date of termination. Notwithstanding the preceding
sentence, the Corporation shall have the right to terminate the employment of
the Employee immediately without notice upon the happening of any of the
following events:
(i) The death of the Employee;
(ii) The Employee becomes disabled, which, for purposes of this
Agreement, shall mean that the Employee is unable to perform substantially
all of his duties for a period of six (6) consecutive months or for a total
of one hundred eighty (180) days in any one year period. If there is any
dispute as to whether the termination of the Employee's employment was due
to the Employee's physical or mental illness or incapacity, such question
shall be submitted to a licensed physician for the purpose of making such
determination. An examination of the Employee shall be made within thirty
(30) days after written notice by the Corporation or the Employee to the
other by a licensed physician agreeable to the Employee and the
Corporation. The Employee shall submit to such examination and provide such
information that such physician may request and the determination of such
physician as to the question of the Employees physical or mental condition
shall be binding and conclusive on all parties concerned for purposes of
this Agreement.;
(iii) The Employee ceases to be a shareholder of the Corporation;
(iv) The breach by the Employee of any provisions of Paragraph 7 or
Paragraph 8 of this Agreement;
(v) The commission by the Employee of any act of dishonesty or
fraud with respect to the Corporation or its business;
(vi) The continued failure of the Employee to substantially perform
his duties for the Corporation (other than by reason of death or illness)
after a review of performance is made with the Employee that identifies the
manner in which the Corporation believes that the Employee has failed to
perform his duties and the Employee fails to resume substantial performance
of those duties after participating in such review;
(vii) The use of alcohol and/or drugs by the Employee in such a
manner as to interfere with the performance of the Employee's duties for
the Corporation;
(viii) Conviction of the Employee of a felony or misdemeanor which,
in the reasonable judgment of the Corporation's Board of Directors, is
likely to have a material adverse effect upon the business or reputation of
the Employee or the Corporation or which substantially impairs the
Employee's ability to perform his duties for the Corporation; or
(ix) Conduct by the Employee which is demonstrably and materially
injurious to the Corporation, monetarily or otherwise.
(b) Upon notice of termination of employment or at any time thereafter as
directed by the Corporation, the Employee shall return to the Corporation any
and all property of the Corporation in the Employee's possession or control.
The agreements of the Employee pursuant to Paragraphs 7, 8, 9 and 10 shall
survive the termination of employment under this Agreement.
12. REIMBURSEMENT OF BUSINESS EXPENSES. The Corporation shall reimburse
the Employee for the amount of expenses reasonably and necessarily incurred by
the Employee in connection with the Corporation's business; provided, however,
that no single expenditure in excess of $100 shall be made without the
Corporation's prior approval. The Employee shall submit an itemized accounting
for all expenses for which reimbursement is sought at such time and in such
detail as the Corporation shall reasonably require. The Corporation shall not be
obligated to pay or reimburse expenses for which adequate documentation is not
furnished in the manner directed by the Corporation.
13. WAIVER. The failure of either party to insist, in any one or more
instances, upon performance of the terms or conditions of this Agreement shall
not be construed as a waiver or a relinquishment of any right granted hereunder
or of the future performance of any such term, covenant or condition.
14. SEVERABILITY. In the event any provision of this Agreement is held to
be invalid or unenforceable for any reason whatsoever, such invalidity or
unenforceability shall not affect any other provision of this Agreement and the
remaining covenants, restrictions and provisions hereof shall remain in full
force and effect and any court of competent jurisdiction may so modify the
objectionable provision as to make it valid, reasonable and enforceable.
FURTHERMORE, THE PARTIES SPECIFICALLY ACKNOWLEDGE THE ABOVE COVENANT NOT TO
COMPETE AND COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION ARE SEPARATE AND
INDEPENDENT AGREEMENTS.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
16. BENEFIT. This Agreement shall be binding upon and inure to the
benefit of and shall be enforceable by and against the Corporation, its
successors and assigns, and the Employee, his heirs, beneficiaries and legal
representatives. The Employee's rights and obligations under this Agreement may
not be delegated or assigned except as specifically set forth herein.
17. NOTICES. Any notice to be given hereunder shall be deemed sufficient
if addressed in writing, and delivered by registered or certified mail or
delivered personally, in the case of the Corporation to its principal business
office, and in the case of the Employee, to his address appearing on the
Corporation's records, or to such other address as he may designate in writing
to the Corporation.
18. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement and understanding between the parties hereto in reference to all of
the matters herein agreed upon, and no representations, promises, agreements or
understandings, whether written or oral, not herein contained shall be of any
force or effect. This Agreement may only be amended by an agreement in writing
signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day, month and year first above written.
EMPLOYEE: CORPORATION:
International Building Concepts, Ltd.,
_________________________ a Minnesota corporation
Xxxxxx X. Xxxxxx
By:____________________________________
Title:______________________________
Attest:________________________________
Title:__________________________
