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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
1. PARTIES; EFFECTIVE DATE. This Employment Agreement ("Agreement") is
between Supply Tech, Inc., a Michigan corporation with offices at 0000
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000 (the "Company") and R. Xxxxx
Xxxxxxx of 00000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
("Employee" or "you"). This Agreement is effective as of December 1,
1996 ("Effective Date").
2. NATURE OF AGREEMENT; "AT-WILL" EMPLOYMENT.
(a) The Company is the developer, owner and distributor of certain
Electronic Data Interchange computer software and bar coding
software, and provides various related products and
technological and professional services related to such
software (the "Company's Business"). The Company wishes to
hire you as an employee. Your job responsibilities are
generally described in Exhibit A of this Agreement. Your
responsibilities could change as the Company obtains new
projects and reassigns responsibilities. These changes may be
communicated orally, or in writing.
(b) This is not a contract for a specific period of time, and is
not a promise of continued employment. You are an employee "at
will," which means that the Company can terminate your
employment for any reason, with or without "cause," and with
or without notice. You, too, have the right to terminate your
employment with the Company at any time, with or without
cause, and with or without notice to the Company.
(c) You agree to devote your full business time and best efforts
to the Company while employed by the Company. You shall not be
employed by (or retained as a consultant for) any other
company providing products or services similar to the
Company's Business. While employed by the Company, you shall
not engage in any activity that will have an adverse effect
upon your ability to perform the obligations under this
Agreement.
3. COMPENSATION; COMPANY POLICIES.
(a) The Company shall compensate you, and shall provide you the
employment benefits, set forth in Exhibit A, which may be
amended from time to time by the Company. Upon the termination
of your employment with the Company, you shall be paid
severance pay (if applicable) in accordance with the terms and
conditions of Section 8 of this Agreement.
(b) The Company may develop additional personnel policies,
including policies relating to benefits, terms and conditions
of employment, and any terms relating to or affecting the
operation of the Company, including rules, procedures and
regulations required by U.S. or state governments or their
agencies. You agree that compliance with those policies, terms
and conditions is a condition of continued employment with the
Company.
4. THE COMPANY'S INTELLECTUAL PROPERTY RIGHTS.
(a) In the course of your employment with the Company, you may
have access to information or materials that are considered
trade secret, confidential and/or proprietary by the Company
("Information"). Information permits the development and
commercialization of competitive and unique products and
services, and is protected by the Company from unauthorized
use and disclosure. Information includes, but is not limited
to, technical know-how, procedures, technical specifications,
designs, software (both object code and source code), results
of testing, programmer documentation, protocols, processes,
compilations of data, strategic plans, sales and marketing
plans, customer information, supplier information, financial
information and proposed agreements. Information also includes
all written materials identified in writing as "Confidential"
or "Proprietary" or such similar proprietary legend, and oral
information
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disclosed in connection with the Information. Information also
includes "Proprietary Materials" identified in Section 4(c)
below.
(b) The Company understands that its current employees may have
had access to the trade secrets and proprietary information of
third parties (that is, persons or companies other than the
Company) during their previous employment. These other trade
secrets may be owned by the former employers or by clients
with whom those former employers did business. The Company
does not permit its employees to disclose, use or incorporate
into the Company's products or services, the unlicensed trade
secrets or proprietary information of third parties. You
acknowledge the foregoing, and represent and warrant that you
will not disclose to the Company, or incorporate into the
Company Information, any trade secrets or proprietary
information of third parties.
(c) Information created by you within the scope of your employment
belongs to the Company and is not owned by you individually.
This Information includes copyrightable works of original
authorship (including but not limited to computer programs,
compilations of information, generation of data, graphic
works, audio-visual materials, technical reports and the
like), ideas, inventions (whether patentable or not) know-how,
processes, trademarks and other intellectual property, whether
proprietary or nonproprietary. You agree that all works of
original authorship created during your employment are "works
for hire" as that term is used in connection with the U.S.
Copyright Act. You agree to disclose promptly to the Company
all ideas, inventions, improvements, works of original
authorship, know-how, trade secrets, processes and the like,
developed or discovered by you in the course of your
employment relating to the business of the Company, or to the
prospective business of the Company, or which utilizes the
Company Information or staff services ("Proprietary
Materials"). To the extent that, by operation of law, you
retain any intellectual property rights in such Proprietary
Materials, you hereby assign to the Company all right, title
and interest in all such Proprietary Materials, including
copyrights, patents, trade secrets, trademarks and know-how.
As used in this Agreement, "Information" includes "Proprietary
Materials."
(d) You agree to cooperate with the Company, at the Company's
expense, in the protection of the Company Information and the
securing of the Company's proprietary rights, including
signing any documents necessary to secure such rights, whether
during or after your employment with the Company.
(e) You agree (i) to not use Information for your own benefit,
(ii) to not disclose Information to any other company or
person without the written permission from a Company officer;
(iii) and to return to the Company all Information and Company
materials upon termination of your employment. You have no
obligation to maintain as confidential any Information that is
entirely in the public domain, or is known to you prior to
disclosure by the Company as evidenced by written, dated
records in your possession, or is received lawfully by you
without the breach of any obligation of confidentiality owed
to the Company.
(f) You may also have access to information that is considered
confidential by third parties with whom the Company does
business, such as customers, suppliers, OEMs and consultants
("Clients"). Such client information shall be maintained as
confidential in accordance with the procedures identified
above.
5. NONSOLICITATION AND NONCOMPETE.
(a) As used in this Section 5, the term "Restricted Period" means:
(1) the number of months for which severance pay is paid to
you in accordance with Section 8 of this Agreement in the
event that you are terminated by the Company for a reason
other than gross negligence or fraud; or (2) in all other
cases, 12 months. As used in this Section 5, the
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term "Indirectly" means as an employee, agent, consultant,
advisor, principal, proprietor, owner, partner or shareholder
(other than by holding shares listed on a stock exchange that
does not exceed 5% of the outstanding shares listed).
(b) During the term of your employment and during the Restricted
Period thereafter, you agree not to directly or indirectly
hire, or solicit for hire, any then-current Company employees,
or to contact them for the purpose of inducing them to leave
the Company.
(c) During the term of your employment and during the Restricted
Period thereafter, you agree not to directly or indirectly:
(i) contact any then-current Company customers for the purpose
of inducing them to leave the Company or to discourage them
from doing business with the Company; or (ii) within the
geographic area to which you were assigned to work by the
Company during the immediately preceding year, compete with
the Company or engage in an business which is competitive with
the Company's Business, without the express prior written
approval of the Company.
6. ENFORCEMENT OF AGREEMENT; INJUNCTIVE RELIEF; ATTORNEYS' FEES AND
EXPENSES.
You acknowledge that violation of this Agreement will cause irreparable
damage to the Company, entitling it to injunctive relief and possible
money damages. If you violate this Agreement, in addition to all other
remedies available to the Company at law, in equity, and under
contract, you agree that you are obligated to pay all the Company's
costs of enforcement of this Agreement, including attorneys' fees and
expenses. The parties agree that any litigation over this Agreement
shall be in a court of competent jurisdiction in Washtenaw County,
Michigan, or the Eastern District of Michigan, Southern Division, and
the parties hereby consent to personal jurisdiction and venue in such
courts.
7. DRUG/ALCOHOL POLICY. While on company time or in the representation of
the Company, it is understood that there will be no use of illegal
mind-altering drugs or chemicals. It is also understood that upon
arrival to work that there will be no traces of mind-altering drugs or
chemicals in the employee's body. This includes amount of blood alcohol
that is beyond legal driving limits. As alcohol is not considerate an
illegal drug, it is understood that its mind-altering effects can
reduce employees judgment and is not to be consumed during normal
business hours. It is understood that if alcohol is being served at an
event in which the Company has not been hired to provide services for,
an employee may consume alcohol, but must not exceed the legal blood
level for driving. Failure to comply with the above may result in
termination of employment.
8. SEVERANCE PAY.
(a) As used in this Section 8, the term "Base Salary" means only
the base salary paid to you and does not include bonus,
benefits, expenses, or options, if any.
(b) Upon the termination by the Company of your employment with
the Company for any reason other than for gross negligence or
fraud, you shall be paid severance pay in accordance with the
following terms and conditions.
(i) If your employment with the Company is terminated
during the first year of your employment, you shall
be paid a severance pay equal to 6 months of your
Base Salary as of the date of termination;
(ii) If your employment with the Company is terminated
during the second year of your employment, you shall
be paid a severance pay equal to 9 months of your
Base Salary as of the date of termination; or
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(iii) If your employment with the Company is terminated at
any time after the second year of your employment,
you shall be paid a severance pay equal to 12 months
of your Base Salary as of the date of termination.
9. GENERAL.
(a) This Agreement shall be construed in accordance with the laws
of the state of Michigan, and shall inure to the benefit and
be binding upon the parties and their heirs, representatives,
successors and assigns.
(b) The terms of this Agreement are deemed to be severable, with
the effect that if any of the provisions of this Agreement
shall be held to be invalid or enforceable by any court of
competent jurisdiction, such provision shall be deemed revised
so as to reflect the intent of the parties expressed therein
and such revisions or determinations of invalidity or
unenforceability shall not affect any other provision of this
Agreement.
(c) This Agreement contains the entire understanding of you and
the Company with respect to the subject matter of employment;
and the status of employment at will cannot be amended except
by a written agreement between the parties. You represent that
you have not been given any oral or written promises relating
to employment that are not contained in this Agreement,
including in any of the Exhibits, which are made a part of
this Agreement.
THE PARTIES HAVE READ THE FOREGOING AGREEMENT,
UNDERSTAND ITS TERMS AND AGREE TO BE BOUND BY THEM.
SUPPLY TECH, INC. EMPLOYEE
By:
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Xxx X. Xxxxx R. Xxxxx Xxxxxxx
Its: Chief Executive Officer
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