PCA EMPLOYMENT AGREEMENT
Exhibit 10.31
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made on this 8th day of March, 2004 by
and between PCA International, Inc. and all subsidiary companies (collectively
referred to herein as “PCA” or the “Company”) and type or print in full name:
Xxxx X. Fine (“Employee”).
Employee
accepts and agrees to his/her continuing employment with PCA and all the
benefits thereof, subject to the terms and conditions of this Agreement and
such
other rules, policies and practices that PCA has instituted and may institute
in
the future.
TERMS
AND CONDITIONS
1. Exclusiveness
of Employment.
Employee agrees faithfully to perform the duties assigned to him/her to the
best
of his/her ability, to devote his/her full and undivided time to the transaction
of PCA’s business, to make to PCA prompt, complete and accurate reports of
his/her work and expenses when required, promptly to remit to PCA all monies
of
PCA collected by Employee or that came into the possession of Employee, and
not
to engage in any other business similar to that of PCA during the term of this
Agreement.
2. Compensation.
In
consideration of Employee’s services, PCA agrees to pay to Employee compensation
in such amounts and at such times as determined by the Company.
3. Protection
of Proprietary Interests.
In
order to maintain the integrity of PCA’s proprietary interests in information
and practices with which Employee may come in contact while in PCA’s employ,
Employee agrees as follows:
(a) Disclosure
of Information.
Employee recognizes that his/her employment by PCA may provide Employee access
to “confidential information” (as defined below) which is a valuable and unique
asset that PCA is entitled to protect from publication by any third party.
Employee will not, during or after his/her employment by PCA, without PCA’s
express written consent, disclose any such confidential information to any
person or other entity for any reason whatsoever or use or exploit in any way
any such confidential information for his/her own purpose(s) or for the benefit
of any person or other entity. Without limiting the generality of the foregoing,
“confidential information” shall include: production processes, raw materials
and their suppliers; production or pricing statistics; actual production and
sales results; research or other information regarding equipment, sales,
marketing, merchandising, designs and the likes, sales data and information
not
otherwise available to the trade; future plans or projections of PCA regarding
the business of PCA; customer lists (the term “customer” includes licensees,
retail stores and chains and the final consumer of goods or services); the
earnings of other employees of PCA and any other private or personal information
relating to such employees.
(b) Covenant
Not to Compete.
For a
period of one (1) year from the date Employee ceases for any reason to be
employed by PCA, Employee shall not engage in any business in competition with
PCA, whether such engagement is as an officer, director, employee, partner,
sole
or joint owner, financier or independent contractor, in the following locales:
(i) the last city in which Employee resided while employed by PCA;
(ii) the state in which the city described in 3(b) above is located;
(iii) or any state contingent to the state described in 3(b)(ii)
above.
The
geographical areas described in 3(b)(i)-(iii) are several and, should a court
or
other body having jurisdiction to interpret and enforce this Agreement determine
that the proscription against competition by Employee in one of the geographical
areas is unenforceable, the provision containing that geographical area shall
be
stricken from this Agreement without affecting the validity of the remaining
provisions of this paragraph 3(b). In addition, during such one
(1) year period, Employee shall not: (a) solicit orders for,
sell or
try to sell any products or services of the kind sold by PCA to any customer
of
the Company that did business with the Company while Employee was in the
Company’s employ; or (b) recruit or induce other employees of the Company
to resign or otherwise terminate their employment with the Company. (The Company
will exercise no rights under this subparagraph not permitted by applicable
law.)
(c) Inventions.
Employee hereby sells, transfers and assigns to PCA or its designee all of
Employee’s right, title, and interest in and to all inventions, ideas,
disclosures, improvements and innovations, whether patented or unpatented,
and
all copyrightable materials made or conceived by Employee solely or jointly
with
others, during the term of Employee’s employment by PCA that relate to method,
formula, designs, products, processes or devices sold, leased, used or under
consideration for development by PCA or that otherwise relate to or pertain
to
the business, functions or operations of PCA. Employee agrees to execute and
deliver to PCA such documents as may be required of Employee to permit PCA
or
its designee to obtain patent rights thereon or so obtain copyright
thereof.
4. Adherence
to Policies.
Employee agrees to adhere to all policies of PCA as may be published in any
employee handbook, operations manual, memo or other communication of such
policies to Employee by PCA, specifically including, but not limited to,
policies regarding discrimination or harassment. Employee further agrees to
report immediately any violation or suspected violation of Company policy,
specifically including, but not limited to, any violation or suspected violation
of Company policy regarding discrimination or harassment.
5. Termination
of Employment.
(a) Nature
of Employment.
Employee recognizes and acknowledges that Employee’s employment is for no
specific term, that employment is at-will and Employee may be discharged, or
Employee may resign, at any time with or without cause and without advance
notice of any specific duration. Employee further recognizes that his/her
at-will status may not be altered, and Employee may not become an employee
for a
definite term absent a written contract of Employment executed by the President
of the Company, which execution must be witnessed by the Company’s Vice
President of Human Resources.
(b) Return
of PCA Materials.
Employee agrees that, upon the termination of his/her employment, Employee
will
promptly turn over to PCA all books, records, lists, accounts, photography,
schedules, charts, manuals, notes, documents, photographic equipment and
supplies in his/her possession and any other writing containing any confidential
information as described in paragraph 3 above, whether or not made on the ___
or
premises of PCA, all of which shall be deemed to be the unique property of
PCA.
(c) Final
Wage Payment.
The
Company shall promptly pay Employee his/her wages earned to the date of
termination as required by applicable law, except as may be modified by
subparagraph (d) below.
(d) Lawful
Deductions From Wage Payment.
Employee acknowledges that, during the course of his/her employment by PCA,
he/she may be advanced certain sums of money later to be deemed compensation
for
work done, relocation, or the traveling and entertainment expenses to be
incurred by Employee, and that he/she may have in his/her possession certain
property and materials belonging to PCA. Therefore, Employee agrees that, upon
Employee’s termination for any reason, PCA has the right to deduct from all
earnings (which shall include all earned commissions, salary, bonuses, earned
but unused vacation pay, severance pay and other forms of compensation) due
Employee such amount as is necessary to reimburse PCA for: (i) travel
or
entertainment expenses advanced, less all documented expenses incurred while
employed; (ii) any overpayment of earnings resulting from any reason;
and
(iii) the cash value of any and all equipment assigned to employee for
the
accomplishment of assigned duties which has not been returned to
PCA.
Employee
agrees to execute promptly all such written authorizations and agreements,
upon
presentation to Employee, as the Company may require in order to exercise its
rights under this subparagraph (d) in accordance with applicable law. (The
Company will exercise no rights under this subparagraph not permitted by
applicable law.)
6. Partial
Invalidity.
If any
part or provision of this Agreement shall be determined by a court of competent
jurisdiction to be invalid or unenforceable, then the remaining parts and
provisions that can be separated from the invalid, unenforceable parts or
provisions shall continue in full force and effect.
7. Survival
of Obligations.
Employee agrees that such of his/her obligations as are set forth in the
Agreement as by their nature survive the employment relationship are continuing
obligations and duties and shall survive the termination of Employee’s
employment.
8. Enforcement
of Agreement.
If
there is a breach or threatened breach of any provision of this Agreement,
PCA
shall be entitled to an injunction to restrain Employee from such breach.
Nothing herein shall prohibit PCA from pursuing any other remedy for such breach
or threatened breach.
9. Voluntary
Consent to Jurisdiction; Controlling Law and Arbitration
Provision.
Employee agrees that all disputes arising out of this Agreement, and all future
disputes, claims or demands arising out of or relating to the employment
relationship between Employee and PCA, including, but not limited to, all claims
which Employee may have which can be asserted under local, state or federal
statute or law, shall be brought exclusively in the Superior Court of
Mecklenburg County, North Carolina, or the United States District Court
for
the Western District of North Carolina, Charlotte Division, and in no
other
forum. Employee hereby voluntarily consents to the personal and subject matter
jurisdiction of these courts for the purpose of finally adjudicating any claims
subject to this forum selection clause, and Employee irrevocably agrees to
be
bound (subject to any available right of appeal) by any judgment rendered or
relief granted by such court. Employee further agrees and covenants not to
bring
suit against PCA in any court or jurisdiction other than stated above. Employee
also agrees that any dispute of any kind arising out of or relating to this
Agreement or to Employee’s employment relationship with PCA shall at PCA’s sole
election be submitted to binding arbitration before the American Arbitration
Association in Mecklenburg County, North Carolina, which election may
be
made by PCA at any date prior to the last day to answer and/or respond to a
summons and/or complaint made by the Employee. This Agreement shall be governed
by and construed in accordance with the substantive law of the state of North
Carolina (without giving effect to North Carolina choice-of-law provisions)
in
all states and jurisdictions in which any party to this Agreement seeks to
have
it enforced.
10. Additional
Terms of Employment.
This
Agreement may not be waived or modified by any oral agreement or by any written
agreement unless the written agreement is in the form stated below. Any
modification, alteration or waiver of any provision of this Agreement, in order
to be valid, must be in writing and signed by the President and the Vice
President of Human Resources of PCA.
11. Benefit.
The
rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the Company, its parent, subsidiaries and all
other affiliated companies or entities, their successors or
assigns.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written
PCA
INTERNATIONAL, INC.
By:
/s/
Xxxxx Xxxxxx
Title:
Corporate HR Administrator
EMPLOYEE:
By:
/s/
Xxxx Fine
Xxxx
Fine
(Print
Name)
