Exhibit 10.4
COLOR IMAGING, INC. and SUBSIDIARIES
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EMPLOYMENT AGREEMENT and EXHIBITS
Xxxxxxx X. Xxxxxxx
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COLOR IMAGING, INC.
0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") IS MADE JUNE 30, 2000, BY AND
BETWEEN COLOR IMAGING, INC. AND ITS SUBSIDIARIES ("EMPLOYER") WHOSE ADDRESS IS
0000 XXXXXXXXX XXXXXXXXX, XXXXXXXX, XXXXXXX 00000, HEREIN REFERRED TO AS
"EMPLOYER" AND XXXXXXX X. XXXXXXX OF 000 XXXXX XXXXX XXXX, XXXXXXX, XXXXXXX
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30076, HEREIN REFERRED TO AS "EMPLOYEE."
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WHEREAS EMPLOYER is in the business of developing, manufacturing and
marketing software, hardware and consumable printing products that are utilized
worldwide, and
WHEREAS EMPLOYER's business objectives are to further develop, manufacture
and market software, hardware and consumable products, including; toners,
printer subsystems, press subsystems, software and complete print engines, and
WHEREAS EMPLOYER is a corporation duly organized under the laws of the State
of Delaware with operating subsidiaries which are California and Georgia
corporations, and
WHEREAS EMPLOYER desires to hire Employee as Vice President of Marketing and
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Sales, under the terms herein to promote Employer's business goals,
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NOW, THEREFORE, in consideration of the promises and covenants hereinafter
set forth, the parties agree as follows:
ARTICLE I
TERM OF EMPLOYMENT
Section1.01. This Agreement is for a five (5) year period, and shall be
renewed for successive five (5) year periods unless sooner terminated as
provided herein below. Notwithstanding the stated term, this Agreement does not
constitute a guarantee of employment by Employer for any fixed period as the
terms of employment may be changed in accordance with Section 1.03. Further,
that this Agreement, and Exhibits to this Agreement, constitute the only
agreement in effect and supercedes all previous agreements, either oral or in
writing, while Employee is employed by Employer, excepting that Salary
Continuation Agreement dated May 1, 1998, between Employer (Color Image, Inc.)
and Employee which is by this reference incorporated herein. Further, that this
Agreement may only be modified by mutual consent and in writing by the Employee
and Employer.
Section 1.02. Employee agrees that as an express term and condition of this
Agreement, that the Employee will not engage in a related business outside
Employee's employment with Employer, solicit or
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Employment Agreement, Page 2 of 10
engage in business with any of Employer's clients or solicit Employer's
employees for positions with other employers for a twelve-month period following
Employee's employment termination with Employer unless said term or condition is
expressly waived in writing by Employer.
Section 1.03. Either party, at its election, may terminate this Agreement
on six months' written notice to the other party, Notwithstanding any
termination, Employee will be due any salary or bonuses earned or expenses
incurred prior to the effective date of the termination. Further, if Employer
terminates this Agreement, Employee will be due twelve (12) months' salary, paid
on an uninterrupted rateable basis consistent with compensation paid during
Employee's last month of employment, together with all regular benefits,
including but not limited to health insurance, 401k participation and life
insurance.
ARTICLE II
DUTIES OF EMPLOYEE
Section 2.01. Employee will devote Employee's entire productive time,
ability and attention to the business of the Employer during the term of this
Agreement. The Employee will not directly or indirectly render any services of
a business, commercial, or professional nature, to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Employer. Said consent will not be unreasonably withheld by
Employer.
Section 2.02. Employee hereby represents that the services to be performed by
Employee under the terms of this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character which gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Employee therefore expressly agrees that the Employer, in
addition to any other rights or remedies which the Employer may possess, will be
entitled to injunctive and other equitable relief to prevent a breach of this
Agreement by Employee.
Section 2.03. Employee will perform his duties from Employer's headquarters
located at 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Headquarters").
However, at any time deemed necessary or advisable by the Employer, for business
purposes, the Employee will work at such other place or places as may be
determined by the Employer.
Section 2.04. In the event that Employee is assigned a temporary work
location during the term of this Agreement at a place other than the Employee's
then assigned location, the Employer will provide reasonable advances, prepay
expense(s) and reimburse all temporary housing, transportation and incidental
expenses related to the Employee's temporary relocation. Further, if the
Employee is assigned permanently to a new work location, the Employer will
reimburse all Employee's, travel, moving and storage expenses related to such
relocation as further described in Section 2.04 herein above.
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Employment Agreement, Page 3 of 10
ARTICLE III
COMPENSATION OF EMPLOYEE
Section 3.01. As compensation for Employee's effort, commitment and
services to be rendered under this Agreement as Vice President of Marketing and
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Sales, Employer will pay to Employee an annual salary, agreed bonus
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opportunities, provide Employer sponsored group health life and other benefits,
including participation in any Employer sponsored 401k or other retirement plans
and grant stock options to acquire an ownership interest in Color Imaging,
Inc.'s common stock ("Common Stock"), as follows:
1. An annual salary of $89,250 paid ratably twice monthly, or in such
frequency as is then in effect, and which salary may be increased by the
Employer at will and any such change will not require the modification of this
Agreement, and
2. An annual salary increase of five percent (5%) or such greater
increase as shall be determined by Employer's Board of Directors, and
3. Participation in a discretionary bonus plan, as described in Exhibit I
to this Agreement, and
4. Participation by Employee in all Employer sponsored group health, life
and other benefit programs, including participation in any Employer sponsored
401k or other retirement plans.
5. An option to acquire 50,000 share of Common Stock, at an option price
of $2.00 per share. All stock options granted to Employee for the purchase of
Employer's Common Stock will terminate, if not exercised, twelve (12) months
after Employee's last day of employment. However, Employee or his heirs will be
granted all options for the purchase of Employer's optioned Common Stock upon
Employee's death or incapacitation and have a twelve (12) month exercise period
to purchase the underlying common shares. Such stock purchase option will allow
Employee to purchase:
1. 25,000 shares of Employer's Common Stock, at any time after
Employee's Date of Employment and for a five-year-period, and
2. 12,500 shares of Employer's Common Stock, at any time and for
a five-year-period, after the first annual anniversary date
Employee's Date of Employment, and
3. 12,500 shares of Employer's Common Stock, at any time and for
a five-year-period, after the second annual anniversary of
Employee's Date of Employment.
ARTICLE IV
BUSINESS EXPENSES
Section 4.01. Employee is authorized to incur reasonable business expenses
for promoting the business of the Employer, including expenditures for
entertainment and travel. The Employer will promptly reimburse the Employee for
all such business expenses provided that: (1) each such expenditure is of a
nature qualifying it as a proper deduction on the federal and state income tax
return of the Employer; and (2) the Employee furnishes Employer adequate and
timely records and other documentary evidence required by the Employer's policy
and by federal and state statutes and regulations issued by the appropriate
taxing authorities for the substantiation of each such expenditure as an income
tax deduction.
ARTICLE V
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Employment Agreement, Page 4 of 10
PROPERTY RIGHTS OF THE PARTIES
Section 5.01. A Proprietary Information and Invention Agreement, Exhibit
II, is by this reference made a part hereof and included herein.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions will nevertheless continue in full force without being impaired or
invalidated in any way.
Section 6.02. This Agreement and all Exhibits supersede any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contain all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement will be valid or binding. Any modification of this
Agreement will be effective only if in writing, signed by the parties hereto.
Section 6.03. If for any reason, such as, illness, incapacitation, or force
majeure, either party is unable to perform under the terms of this Agreement,
both parties agree there will be no penalty incurred or due.
Section 6.04. The entire agreement between the parties hereto, with respect
to the subject matter herein is contained in this Agreement. Except as expressly
provided herein to the contrary, the provisions of this Agreement are for the
benefit of the parties solely and not for the benefit of any other person,
persons, or legal entities.
Section 6.05. This Agreement will be governed by and construed in
accordance with the laws of the State of Georgia, and BOTH PARTIES EXPRESSLY
WAIVE TRIAL BY JURY.
Executed as of the day and year first above written,
UNDERSTOOD AND ACCEPTED:
EMPLOYER: COLOR IMAGING, INC. EMPLOYEE: Xxxxxxx X. Xxxxxxx
By: /s/ XXXXXXX XXXX By: /s/ XXXXXXX X. XXXXXXX
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Xx. Xxxxxxx Xxxx, President Xxxxxxx X. Xxxxxxx,
0000 Xxxxxxxxx Xxxxxxxxxx Xxxx 000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxx, XX 00000
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Employment Agreement, Page 5 of 10
EXHIBIT I
EMPLOYMENT COMMISSION AND BONUS SCHEDULE
ARTICLE I
COMMISSION AND BONUS COMMITMENT
Section 1.01. Employer will pay to Employee a Discretionary Commission
and or Bonus ("BONUS"), as approved by the Board of Directors, and based on
Employee's commitments and achievements, as follows:
Year 2000 bonus, as Vice President of Marketing and Sales, is 0.5
percent of the gross margins of the combined corporate, domestic and
international accounts. The first bonus will be paid on July 25, 2000
for the first six months' performance. Following bonuses will be paid
on October 15, 2000 and February 15, 2001, for the third and fourth
quarters performance, respectively.
Year 2001, bonus, as Vice President of Marketing and Sales, will be
determined by January 15, 2001.
Should any dispute arise between Employee and Employer regarding whether or
not an unpaid Bonus is due Employee, Employer will have the sole right to decide
such matter, and the decision of the Employer will be binding on Employee.
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Employment Agreement, Page 6 of 10
EXHIBIT II
PROPRIETARY INFORMATION & INVENTION AGREEMENT
In consideration of Employee's employment or continued employment by
Employer, and the compensation now and hereafter paid to Employee, Employee
hereby agree as follows:
1. Recognition of Employer's Rights; Nondisclosure. At all times during
the term of Employee's employment and thereafter, Employee will hold in
strictest confidence and will not disclose, use, lecture upon or publish any of
the Employer's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with my work for
the Employer, or unless an officer of the Employer expressly authorizes such in
writing. Employee hereby assigns to the Employer any rights Employee may have
or acquire in such Proprietary Information and recognize that all Proprietary
Information shall be the sole property of the Employer and its assigns and the
Employer and its assigns shall be the sole owner of all patent rights,
copyrights, trade secret rights and all other rights throughout the world
(collectively, "Proprietary Rights") in connection therewith.
The term "Proprietary Information" shall mean trade secrets, confidential
knowledge, data or any other proprietary information of the Employer. By way of
illustration, but not limitation, "Proprietary Information" includes (a)
inventions, trade secrets, ideas, processes, formulas, source and object codes,
data, programs, other works of authorship, know-how, improvements, discoveries,
developments, designs and techniques (hereafter collectively referred to as
"Inventions"); and (b) information regarding customers of the Employer, plans
for business development, marketing, business plans, budgets and financial
statements of any kind, costs and suppliers; and information regarding the
skills and compensation of other employees of the Employer or employees of any
company that contracts to provide services to the Employer.
2. Third Party Information. Employee understands, in addition, that the
Employer has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") subject to a
duty on the Employer's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the term of Employee's
employment and thereafter, Employee will hold Third Party Information in the
strictest confidence and will not disclose (to anyone other than personnel who
need to know such information in connection with their work for the Employer) or
use, except in connection with Employee's work for the Employer, Third Party
Information unless expressly authorized by an officer of the Employer in
writing.
3. Assignments of Inventions.
3.1. Assignment. Employee hereby assigns to the Employer all
Employee's right, title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by Employee, either alone or jointly with others, during the
period of Employee's employment with the Employer. Inventions assigned to or as
directed by the Employer by this paragraph 3 are hereafter referred to as
"Employer Inventions." Employee recognizes that this Agreement does not require
assignment of any invention that the Employee developed entirely on Employee's
own time without using the Employer's equipment, supplies, facilities, or trade
secret information except for those inventions that either: (1) Relate at the
time of conception or reduction to practice of the invention to the Employer's
business, or actual or demonstrably anticipated research or development of the
Employer, (2) Result from any work performed by the Employee for the Employer.
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Employment Agreement, Page 7 of 10
3.2. Works for Hire. Employee acknowledges that all original works of
authorship which are made by Employee (solely or jointly with others) within the
scope of Employee's employment and which are protectable by copyright are "works
made for hire," as that term is defined in the United States Copyright Act (17
U.S.C. Section 101.).
4. Enforcement of Proprietary Rights. Employee will assist Employer in
every proper way to obtain and from time to time enforce United States and
foreign Proprietary Rights relating to Employer Inventions in any and all
countries. To that end Employee will execute, verify and deliver such documents
and perform such other acts (including appearances as a witness) as the Employer
reasonably requests for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, Employee will execute, verify and deliver assignments of such
Proprietary Rights to the Employer or its designee. Employee's obligation to
assist the Employer with respect to Proprietary Rights relating to such Employer
Inventions in any and all countries shall continue beyond the termination of
Employee's employment, but the Employer shall compensate Employee at a
reasonable rate after Employee's termination for the time actually spent by
Employee at the Employer's request of such assistance.
In the event the Employer is unable for any reason, after reasonable
effort, to secure Employee's signature on any document needed in connection with
the actions specified in the preceding paragraph, Employee hereby irrevocably
designate and appoint the Employer and its duly authorized officers and agents
as Employee's agent and attorney in fact, to act for and in Employee's behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph thereon with
the same legal force and effect as if executed by Employee. Employee hereby
waives and quitclaims to the Employer any and all claims, of any nature
whatsoever, which Employee now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Employer.
5. Obligation To Keep Employer Informed. During the period of Employee's
employment, Employee will promptly disclose to the Employer fully and in writing
and will hold in trust for the sole right and benefit of the Employer any and
all Inventions. In addition, after termination of Employee's employment,
Employee will disclose all patent applications filed by Employee within a year
after termination of employment. At the time of each such disclosure, Employee
will advise the Employer in writing of any Inventions that Employee believes
fully qualifies for protection; and Employee will at that time provide to the
Employer in writing all evidence necessary to substantiate that belief.
Employee understands that the Employer will keep in confidence and will not
disclose to third parties without Employee's consent any proprietary information
disclosed in writing to the Employer pursuant to this Agreement relating to
Inventions that qualify fully for protection. Employee will preserve the
confidentiality of any Invention that does not fully qualify for protection.
6. Additional Activities. Employee agrees that during the period of
Employee's employment by the Employer, Employee will not, without the Employer's
express written consent, engage in any employment or business activity other
than for the Employer, and for the period of Employee's employment by the
Employer and for twelve (12) months after the date of termination of Employee's
employment by the Employer, Employee will not (i) induce any employee of the
Employer (or any employee of any company that contracts with the Employer to
provide services for the Employer) to leave the employ of the Employer (or the
employ of any company contracting to provide services for the Employer) or (ii)
solicit the business of any customer of the Employer (other than on behalf of
the Employer).
7. No Improper Use of Material. During Employee's employment by the
Employer, Employee will not improperly use or disclose any confidential
information or trade secrets, if any, of any former employer or any other person
to whom Employee has an obligation of confidentiality, and Employee will not
bring onto the premises of the Employer any unpublished documents or any
property belonging to any former employer or any other person to whom Employee
has an obligation of confidentiality unless consented to in writing by that
former employer or person.
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Employment Agreement, Page 8 of 10
8. No Conflicting Obligation. Employee represents that Employee's
performance of all the terms of this Agreement and as an Employee of the
Employer does not and will not breach any agreement to keep in confidence
information acquired by Employee in confidence or in trust prior to Employee's
employment by the Employer. Employee has not entered into, and Employee agrees
Employee will not enter into, any agreement either written or oral in conflict
herewith.
9. Return of Employer Documents. When Employee leaves the employ of the
Employer, Employee will deliver to the Employer any and all patient notes,
reports, records, drawings, memoranda, devices, formulas, and other documents,
together with all copies thereof, and any other material containing or
disclosing any Employer Inventions, Third Party Information or Proprietary
Information of the Employer. Employee further agrees that any property situated
on the Employer's premises and owned by the Employer, including disks and other
storage media, filing cabinets or other work areas, is subject to inspection at
any time with or without notice.
Employee has been informed and acknowledges that the unauthorized taking of
the Employer's trade secrets: (i) could result in civil liability, and that,
if willful, could result in an award for triple the amount of the Employer's
damages and attorneys' fees; and (ii) is a crime punishable by imprisonment or
by a fine, or by both. EMPLOYER AND EMPLOYEE EXPRESSLY WAIVE TRIAL BY JURY.
10. Legal and Equitable Remedies. Because Employee's services are
personal and unique and because Employee may have access to and become
acquainted with the Proprietary Information of the Employer or of Third Party
Information, the Employer shall have the right to enforce this Agreement and any
of its provisions by injunction, specific performance or other equitable relief,
without bond, without prejudice to any other rights and remedies that the
Employer may have for a breach of this Agreement.
11. Notices. Any notices required or permitted hereunder shall be in
writing and given to the appropriate party at the Headquarters or permanent
residence address of the party as indicated in this Agreement, or as may change
from time to time. Such notice shall be deemed given upon personal delivery to
the appropriate address or if sent by certified or registered mail, three days
after the date of mailing.
12. General Provisions.
12.1. Governing Law. This Agreement will be governed by and construed
according to the laws of the State of Georgia.
12.2. Entire Agreement. This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof and
supercedes and merges all prior discussions between Employer and Employee. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, will be effective unless in writing signed by the
party(ies). Any subsequent change or changes in Employee's duties, salary or
compensation will not affect the validity of this Agreement. As used in this
Agreement, the period of Employee's employment includes any time that Employee
may be retained by the Employer as a consultant or independent contractor.
12.3. Severability. If one or more of the provisions in this
Agreement are deemed unenforceable by law, then the remaining provisions will
continue in full force and effect.
12.4. Successors and Assigns. This Agreement will be binding upon
Employee's heirs, executors, administrators and other legal representatives and
will be for the benefit of the Employer, its successors and its assigns.
12.5. Survival. The provisions of this Agreement shall survive the
termination of Employee's employment and the assignment of this Agreement by the
Employer to any successor in interest or other assignee.
12.6. Employment. Employee agrees and understands that nothing in
this Agreement shall confer any rights with respect to continuation of
Employee's employment by the Employer. Employee agrees and acknowledges that
Employee's employment is based on the mutual consent of the Employer and
Employee as otherwise provided in this Agreement.
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Employment Agreement, Page 9 of 10
12.7. Waiver. No waiver by the Employer of any breach of this
Agreement shall be a waiver of any preceding or succeeding breach. No waiver by
the Employer of any right under this Agreement shall be construed as a waiver of
any other right. The Employer shall not be required to give notice to enforce
strict adherence to all terms of this Agreement.
EMPLOYEE UNDERSTANDS THAT THIS AGREEMENT AFFECTS EMPLOYEE'S RIGHTS TO
INVENTIONS EMPLOYEE MAKES DURING EMPLOYEE'S EMPLOYMENT AND RESTRICTS EMPLOYEE'S
RIGHT TO DISCLOSE OR USE THE EMPLOYER'S CONFIDENTIAL INFORMATION DURING OR
SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT.
EMPLOYEE HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
EMPLOYER: COLOR IMAGING, INC. EMPLOYEE: Xxxxxxx X. Xxxxxxx
By: /s/ XXXXXXX XXXX By: /s/ XXXXXXX X. XXXXXXX
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Xx. Xxxxxxx Xxxx, President Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxxxxxxx Xxxx 000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxx, XX 00000
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Employment Agreement, Page 10 of 10
