Exhibit 10(i)
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made and entered into as of January
1, 1997, between LAVVTER INTERNATIONAL, INC., a Delaware corporation, (the
"Company"), and XXXXXX X. XXXX (the "Employee").
1. POSITION AND DUTIES. The Employee shall have the title and
position of Vice President, Ink Vehicle Research/Development.
The Employee shall devote his full working time and creative energies to
the performance of his duties hereunder and will, at all times, devote such
additional time and efforts as are reasonably sufficient for fulfilling the
significant responsibilities entrusted to him.
2. PERIOD OF CONTRACT EMPLOYMENT. The term "Period of Contract
Employment," as used in this Agreement, means the period beginning on January
1, 1997 and ending on the earlier of (a) twelve (12) months from the
commencement of employment or (b) termination of the Employee's employment
with the Company pursuant to Section 6 herein. This Agreement shall
automatically be renewed for a like term unless written notice of termination
is given as provided herein at least thirty (30) days prior to the
termination of the Period of Contract Employment.
3. ANNUAL BASE SALARY. During the Period of Contract Employment, the
Company agrees to pay the Employee a base salary (the "Base Salary") in the
annual amount of One Hundred Ten Thousand Dollars ($110,000.00). The Base
Salary shall be payable as current salary, subject to all applicable
withholding and deductions, in installments in accordance with the Company's
customary payroll practices. The Base Salary may be increased at the sole
discretion of the Company.
4. BONUS COMPENSATION. Upon and in consideration of Employee
executing and agreeing to this Employment Agreement and the covenants and
obligations hereunder, the Company shall pay the Employee a signing bonus of
Ten Thousand Dollars ($10,000.00), less withholding and deductions as
required by law. The bonus shall be paid at the first regular payroll period
after the execution of this Agreement.
5. BENEFITS. During the Period of Contract Employment, the Employee
shall be entitled to participate in or received benefits equivalent to any
employee benefit plan or other arrangement, including but not limited to any
medical, dental, retirement, disability, life insurance and sick leave,
generally made available by the Company to its employees, subject to or on a
basis consistent with the terms, conditions, eligibility requirements and
overall administration of such plans or arrangements; PROVIDED, that such
plans and arrangements are made available at the discretion of the Company
and noting in this Agreement establishes any right of the Employee to the
availability of, eligibility for or continuance of any such plan or
arrangement.
6. TERMINATION BY THE COMPANY. The Company may terminate the
Employee's employment hereunder with or without due cause at any time during
the Period of Contract Employment by giving written notice ("Termination
Notice") to the Employee. Such termination shall become effective upon the
date specified in the Termination Notice (the "date of termination").
(a) In the event such termination is without due cause and provided that
the Employee shall have executed and delivered to the Company a
General Release in a mutually agreeable form and the termination is
not pursuant to subsections (b), (c) or (d) of this Section, the
Employee shall be entitled to:
(i) payment of all earned but unpaid Base Salary, and vacation
pay through the date of termination, payable in a lump sum
within five (5) days after the date of termination;
(ii) payment of an amount equal to the Base Salary the Employee
would have earned during the unfulfilled remainder of the
Period of Contract Employment (the "Severance Period"),
payable in equal installments over the Severance Period in
accordance with the Company's customary payroll practices
provided the Employee is not in violation of Sections 8
through 12 of this Agreement and provided further that the
Employee shall have executed and delivered to the Company a
General Release in a mutually agreeable form;
(iii) rights and benefits of the Employee under the benefit plans
and programs of the Company, or which are paid by the
Company, shall be determined in accordance with the
provisions of such plans and programs; and
(iv) upon the termination of his employment by the Company under
this subsection (a), the Employee shall have no right to
compensation except as set forth in this subsection of this
Agreement.
(b) The employment of the Employee may be terminated by the Company at
any time for Due Cause (as hereinafter defined). In the event of
such termination, the Company shall pay to the Employee his Base
Salary and any unused vacation accrued to the date of such
termination and -not theretofore paid to the Employee. Rights and
benefits of the Employee under the benefit plans and programs of the
Company, or which are paid by the Company, shall be determined in
accordance with the provisions of such plans and programs. For
purposes hereof, "Due Cause" shall mean (a) the Employee's gross
neglect or willful misconduct in the discharge of his duties and
responsibilities; (b) the Employee's failure to obey appropriate
written directions from his Manager; (c) any willful or purposeful
act (or any act or omission taken in bad faith) of the Employee
having the effect of injuring the Company; (d) the Employee's
conviction for a felony or for any other crime; (e) the Employee's
breach of his duty of loyalty to the Company which breach has the
effect of injuring the Company; (D a final determination by a court
or governmental agency that the Employee failed to comply with an
applicable law, ordinance, rule or regulation materially affecting
the Company for which the Employee, was directly responsible; or (g)
the breach of any term or provision of this Agreement by the
Employee.
(c) In the event of the death of the Employee, the Company shall pay to
the estate or other legal representative of the Employee the Base
Salary and any unused vacation accrued to the date of death and not
theretofore paid to the Employee. Rights and benefits of the estate
or other legal representative of the Employee under the benefit
plans and programs of the Company, or which are paid by the Company,
shall be determined in accordance with the provision of said plans
and programs. Neither the estate or other legal representative of
the Employee shall have any further rights or obligations under this
Agreement.
(d) If the Employee shall become incapacitated by reason of physical
or mental disability (as defined in the Regulations of the Social
Security Administration in effect from time to time) and/or shall
fail to perform his normal duties for the Company for a cumulative
period of twelve (12) weeks in any period of twelve (12)
consecutive months, the employment of the Employee may be
terminated by the Company or the Employee upon notice to the
other. The parties agree that in such event, the Employee shall
not be considered as a Qualified Individual with a Disability
under the Americans With Disabilities Act. In the event of such
termination, the Company shall pay to the Employee his Base Salary
and any unused vacation accrued to the date of such termination
and not theretofore paid to the Employee. Rights and benefits of
the Employee under the benefit plans and programs of the Company,
or which are paid by the Company, shall be determined in
accordance with the provisions of such plans and programs.
Neither the Employee nor the Company shall have any further rights
or obligations under this Agreement, except as provided in
Sections 8 through 16 of this Agreement.
7. TERMINATION BY THE EMPLOYEE. The Employee may terminate his
employment with the Company by giving a Termination Notice to the Company.
Such termination will become effective upon the date specified in the
Termination Notice (the "Effective Date") and provided that the Effective
Date is at least thirty (30) days after the date of the Termination Notice.
In the event that the Employee. delivers a Termination Notice to the Company,
the Employee shall be entitled to payment of all earned but unpaid Base
Salary, and vacation pay through the Effective Date, payable in a lump sum
within fifteen (15) days after the Effective Date.
8. CONFIDENTIAL INFORMATION AND PROPRIETARY DATA.
a. The term "Confidential Information" means information and data not
generally known outside the Company (unless as a result of a breach by the
Employee or others of any of the obligations imposed by this Agreement or a
similar agreement or legal duty) Company's computer programs, methods,
processes, formulas, inventions, customer lists, procedures, confidential
management information, strategic plans, management reports, information
concerning pending transactions, confidential personnel information,
confidential financial information and other confidential and proprietary
information belonging to the Company or relating to the Company's customers.
b. Except as otherwise herein provided, the Employee agrees that
during the Period of Contract Employment, and thereafter, the Employee will
hold in strictest confidence and will not use or disclose to any person,
firm, entity, partnership or corporation, without the written authorization
of the President of the Company, or use for his own benefit or the benefit of
any person, firm, entity, partnership or corporation any of the Company's
Confidential Information, except as such use or disclosure may be required in
connection with the Employee's work for the Company. The Employee
understands that this agreement applies to computerized as well as written
information. It is expressly understood, however, that the obligations of
this Section shall only apply for as long as and to the extent that the
aforesaid Confidential Information has not become generally known to or
available for use by the public other than by the Employee's act or omission
or a breach by another person of a legal duty or obligation.
c. The Employee agrees that he has no proprietary interest in the
Company's Confidential Information, and that he will not take any
Confidential Information that is in written, computerized, machine readable,
model, sample, or other form capable of physical delivery, upon or after
termination of employment with the Company, without the prior written consent
of the Company. The Employee agrees that upon termination of employment with
the Company, he shall deliver promptly and return to the Company all such
materials, along with all other property, brochures, lists, supplies,
property, and documents of the Company or relating to its customers and
prospective customers, in his possession or control.
9. NON-SOLICITATION OF COMPANY'S CUSTOMERS AND PROSPECTIVE CUSTOMERS.
The Employee agrees that during the term of his employment with the Company
and for a period of two (2) years after the termination of such employment,
he will not, for himself, or as an employee or otherwise, directly or
indirectly, solicit or transact business with any customer of the Company for
services which are provided by the Company and which was a customer of the
Company which the Employee had contact with during his last twelve (12)
months of employment or about which the Company developed Confidential
Information during his last twelve (12) months of employment with the
Company. The Employee also agrees that during the Period of Contract
Employment with the Company and for a period of two (2) years after the
termination of such employment, he will not for himself or as an employee,
consultant or otherwise, directly or indirectly, solicit for sales or
services or transact any business with any prospective customer of the
Company which was a prospective customer of the Company, and with which he
had contact with during his last twelve (12) months of employment or about
which he obtained Confidential Information during the last twelve (12) months
of his employment with the Company.
10. NON-COMPETITION. The Employee further agrees that during and for
a period of two (2) years after the Period of Contract Employment with the
Company, regardless of reason, whether the termination is initiated or
brought about by the Employee, by the Company, or otherwise, unless such
termination is caused by the Company ceasing to do business, the Employee
absolutely and unconditionally agrees that he will not directly or
indirectly, either for his own account or for the benefit of any person or
entity, engage in competitive activities with the Company. 'Competitive
activities with the Company" shall include but not be limited to, being a
director, officer, stockholder (except the Employee may purchase shares in a
publicly traded company not to exceed five percent (5%) of the issued and
outstanding shares of the publicly traded company), agent, representative,
consultant, officer or employee of a partnership, sole proprietor, or any
other entity which is engaged in the manufacture and sale of chemical resins,
ink vehicles and other products manufactured by the Company.
11. NON-SOLICITATION OF EMPLOYEES. During the period of this Agreement
and for a period of twelve (12) months thereafter, the Employee agrees to
refrain from directly or indirectly soliciting, inducing, persuading or
assisting the Company's employees, agents or representatives from leaving
their employment or relationship with the Company.
12. NOTIFICATION OF EMPLOYMENT. For a period of two (2) years after
termination of this Agreement, or for a period of two (2) years after the end
of the Employee's association with the Company, whichever is later, Employee
shall inform any prospective new employer, principal, or associate which is
or is seeking to become engaged in the same or similar business as the
Company of the existence of this Agreement and provide same with a copy of
this Agreement prior to accepting any employment or entering into any
business relationship.
13. DISCLOSURE OF INTELLECTUAL PROPERTIES. Employee will make prompt
and full disclosure to the Company or to its designated representatives of
any and all intellectual property acquired during the period of his
employment by the Company, including technological innovations, discoveries,
inventions, designs, formulae, know-how, tests, performance data, processes,
production methods, improvements to all such property, and all recorded
material defining, describing, or illustrating all such property, whether
written or not and whether stored in plain or in code form (hereinafter
collectively referred to as "Intellectual Property"), whether or not
patentable, copyrightable, or subject to trademark, (1) which he has made,
conceived, originated, devised, discovered, invented, or developed or which
he may hereafter make, conceive, originate, devise, discover, invent or
develop either solely or jointly with others, during any Period of Contract
Employment with the Company, whether during working hours or not, and which
relate or have application to business of the general nature now or hereafter
carried on or contemplated by the Company during any Period of Contract
Employment and (ii) which he may make, conceive, originate, devise, discover,
invent or develop during the six (6) month period following termination of
his employment with the Company and which directly or indirectly relates to
work initiated, conducted, observed, or contemplated during any Period of
Contract Employment. Employee will not at any time, without the prior
written consent of the Company, disclose any Intellectual Properties, whether
or not the Intellectual Properties are patentable, copyrightable, or subject
to trademark protection.
14. OWNERSHIP OF INTELLECTUAL PROPERTIES. Employee agrees that the
Company shall be the sole owner of all property rights to all Intellectual
Properties made, conceived, originated, devised, discovered, invented, or
developed by him, either alone or with others, during his employment.
Employee agrees that such Intellectual Properties are works made for hire,
and further hereby assigns all of his rights therein to Company.
15. OBLIGATIONS AS TO PATENTS AND OTHER PROTECTIONS. Employee agrees
to apply for Letters Patent whenever the Company, in its sole discretion and
at its expense, directs him to make such application in the United States and
in any or all foreign countries. Such Letters Patent shall be applied for in
the Company's own name or otherwise as the Company may desire. Employee
will, without charge to the Company, do what the Company deems necessary to
vest in the Company the entire interest in all Intellectual Properties and to
enable the Company to secure Letters Patent, copyright registrations and
trademark registrations and similar protections in the United States and
foreign countries. Employee agrees to and does hereby assign to the Company
all Intellectual Properties, and all other similar protections which may
issue whether in the United States or in such foreign countries.
Employee agrees to execute and deliver without charge to the Company any
documents reasonably requested by the Company in order to demonstrate or
protect its ownership of or related to its protection of patent applications
and similar protections for Intellectual Properties. Employee further agrees
to assist the Company or its nominees in the performance of any lawful acts
that the Company at is discretion deems necessary to secure proper patent,
copyright, trademark, and other protection for Intellectual Properties and
improvements thereon, and to vest in the Company the entire interest therein
in the United States and all foreign countries, without additional
compensation. Employee also agrees to assist the Company in connection with
any demands, reissues, oppositions, litigation,
controversy, or other actions involving Intellectual Properties, without
additional compensation.
16. NO COMPANY OBLIGATIONS AS TO PATENTS AND OTHER PROPERTIES. The
Company may, at its sole discretion and at its own expense, determine whether
to secure legal protection for or develop its Intellectual Properties. The
Company shall not be obligated hereunder to file or take any other action to
protect its Intellectual Properties from infringement or copying. The filing
or prosecution of any patent application, or the maintenance of any other
action or protect any Intellectual Properties shall be within the exclusive
discretion and under the sole control of the Company, and shall be solely at
the Company's expense. Any amounts recovered thereby shall belong to the
Company.
17. REMEDIES FOR BREACH. If the Employee shall breach any agreement
contacted in Sections 8 through 16 of this Agreement, the Company may bring
an action directly in any court of competent jurisdiction to enforce the
Agreement. Such breach may render the Employee liable to the Company for
damages therefor and entitle the Company to enjoin the Employee from
breaching his agreements. In addition, the Company shall have the right to
such event to enjoin the Employee from disclosing any confidential
information concerning the Company or rendering personal services to any
competing business, to enjoin any competing business from receiving the
Employee or using any such confidential information and/or to enjoy any
competing business from retaining or seeking to retain any other employees of
the Company.
18. SEVERABILITY; ENFORCEABILITY. In the event that Sections 8, 9,
10, 11, 12, 13, 14, 15 or 16 of this Agreement or any portion thereof, should
ever be adjudicated by a court of competent jurisdiction in proceedings to
which the Company is a proper party to exceed the time or geographic or other
limitations permitted by applicable law, then such provisions will be
deemed reformed to the maximum time or geographic or other limitations
permitted by applicable law, as determined by such court in such action, the
parties hereby acknowledging their desire that in such event such action be
taken. Without limiting the foregoing, the covenants contained herein will be
construed as separate covenants covering their respective subject matters,
including without limitation, with respect to (a) each of the separate
cities, countries, metropolitan areas, and each other political subdivision
of the United States in which any of the Company or its successors now
transact any business or propose to transact business, (b) each business now
conducted by the Company or its successors, and (c) the Company and its
successors separately. In addition to the above, all provisions of this
Agreement are severable, and the invalidity or unenforceability of any
provision or provisions of this Agreement or portions or aspects thereof will
not affect the validity or enforceability of any other provision, or portion
of this Agreement, which will remain in full force and effect as if executed
with the unenforceable or invalid provision or portion or aspect thereof
modified, as set forth above.
19. GOVERNING LAW. This Agreement is being made and executed in and
is intended to be performed in the Sate of Illinois and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws
of the State of Illinois, without regard to the conflict of laws principles
thereof.
20. ENTIRE AGREEMENT. This Agreement comprises the entire agreement
between the parties hereto relating to the subject matter hereof and, as of
the date hereof, supersede, cancel and annual all previous employment
agreements between the Company (and/or its predecessors) and the Employee, as
the same may have been amended or modified, and any right of the Employee
thereunder other than for compensation accrued thereunder as of the date
hereof, and supersede, cancel and annual all other prior written and oral
agreements between the Employee and the Company or any predecessor to the
Company. The terms of this Agreement are intended by the parties to be final
expression of their agreement with respect tot he employment of the Employee
by the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement. This Agreement does not, however, supersede or
negate the terms of the Employee Confidentiality Agreement dated December 21,
1983, between Employee and the Company, and the parties hereto reconfirm the
existence and validity of such Employee Confidentiality Agreement.
21. DISPUTES. Other than an action brought under Section 17 related
to Sections 8 through 16 of this Agreement, which may be brought directly in
any court of competent jurisdiction, any dispute or controversy arising
under, out of, in connection with or in relation to this Agreement, shall be
finally determined and settled by arbitration. Arbitration shall be
initiated by one party making written demand upon the other party and
simultaneously filing the demand together with required fees in the office of
the American Arbitration Association in Chicago, Illinois. The arbitration
proceeding shall be conducted in Chicago, Illinois by a single arbitrator in
accordance with the Expedited Procedures of the Employment Dispute Resolution
Rules of the American Arbitration Association, except as otherwise proved
herein. Except as required by the arbitrator, or applicable law, the parties
shall have no obligation to comply with discovery requests made in the
arbitration proceeding. The arbitration award shall be a final and binding
determination of the dispute and shall be fully enforceable as an arbitration
award In any court having jurisdiction and venue over such parties. The
prevailing party (as determined by the arbitrator) shall be awarded by the
arbitrator such party's attorney's fees and expenses in connection with such
proceedings, in addition to any other relief that may be granted. The
non-prevailing party (as determined by the arbitrator) shall pay the
arbitrators fees and expenses.
22. NOTICES. Any notice, request, claim, demand, document and other
communication hereunder to any party will be effective upon receipt (or
refusal of receipt) and will be in writing and delivered personally or sent
by telecopy or certified or registered mail, postage prepaid, as follows: If
to the Company, addressed to the attention of its President at Xxxxxx
International, Inc.; 000 Xxxxxx Xxxxxxxxx; Xxxxxxxxxx, Xxxxxxxx 00000; and if
to the Employee, at the address set forth below under his signature; or at
any other address as any party has specified by notice in writing to the
other party.
23. AMENDMENTS: WAIVERS. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, approved by the
Board and signed by the Employee and the President. By an instrument in
writing similarly executed, the Employee or the Company may waive compliance
BY the other party with any provision of this Agreement that such other party
was or is obligated to comply with or perform; provided, that such waiver
shall not operate as a waiver of, or estoppel with respect to, any other or
subsequent failure. No failure to exercise and no delay in exercising any
right, remedy or power hereunder shall preclude any other or further exercise
of any other right, remedy or power provided herein or by law or in equity.
24. SUCCESSORS AND ASSIGNS. By reason of the special and unique
nature of the services of the Employee hereunder, it is agreed that neither
party hereto may assign any interests, rights or duties which it or he may
have in this Agreement without the prior written consent of the other party,
except that upon any merger, liquidation, or sale of all or substantially all
of the assets of the Company to another corporation, this Agreement shall
inure to the benefit of and be binding upon the Employee and the purchasing,
surviving, or resulting company or corporation in the same manner and to the
same extent as though such company or corporation were the Company.
25. HEADINGS. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument.
27. EFFECT OF TERMINATION. Sections 8, 9, 10, 11, 12, 13, 14, 15, 16
and 17 shall in all events survive any termination of the Employee's
employment and/or the expiration of the Period of Contract Employment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written and execution of this Agreement supersedes
all prior written and/or oral agreements.
XXXXXX INTERNATIONAL, INC. XXXXXX X. XXXX
By: /s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
------------------------------------ ---------------------------------
Address: 0000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
