Exhibit 10.4
Employment Agreement by and between
Xxxxxxx Xxxxxxx and the Company dated July 28, 1995.
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT is by and between RAINBOW INTERNATIONAL CARPET
DYEING & CLEANING COMPANY, a Texas corporation with its principal place of
business located at 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx, Xxxx, Xxxxx 00000
("EMPLOYER") and XXXXXXX XXXXXXX, individually, having a residence address of
_______________________________________________________________ ("EMPLOYEE").
("EMPLOYER and EMPLOYEE hereby agree as follows:
DUTIES AND CONDITIONS
EMPLOYEE is hereby employed as President of EMPLOYER beginning July 24,
1995. EMPLOYEE shall report directly to Xxxxxx X. Xxxxxxx, President and Chief
Executive Officer of The Xxxxx Group, Inc., EMPLOYER's parent holding company.
EMPLOYEE agrees to devote his time, knowledge, skill and attention solely and
exclusively to the business interests of EMPLOYER. EMPLOYEE's principal duties
shall be as directed by Xx. Xxxxxxx. EMPLOYEE agrees to perform such other
additional duties as may be reasonably assigned to EMPLOYEE. It is understood
that EMPLOYEE shall work only in those areas assigned during such periods of
time as designated by EMPLOYER. EMPLOYEE agrees to live up to EMPLOYER's Code of
Values.
COMPENSATION
EMPLOYER shall pay EMPLOYEE a salary of $120,000.00 per year for the
services contemplated hereunder, payable in accordance with the EMPLOYER's usual
payroll period.
EMPLOYER further agrees to provide EMPLOYEE a bonus, payable quarterly, in
an amount equal to five percent (5%) of the net income of EMPLOYER for the
applicable quarter. The payment shall be made as soon as net income for the
quarter has been determined. Net income will be determined from the internal
financial statement of EMPLOYER as regularly kept, adjusted by excluding any
extraordinary items. In the event of a dispute as to adjustments, the decision
of EMPLOYER's Chief Financial Officer shall be final.
EMPLOYER further agrees to reimburse EMPLOYEE for actual moving expenses,
to be paid on or before August 1, 1995 provided EMPLOYEE has provided any
documentation required by EMPLOYER's Chief Financial Officer to support such
payment.
EMPLOYER further agrees that if EMPLOYEE's present home, located in Tucson,
Arizona, has not been sold by July 24, 1995, EMPLOYER shall pay EMPLOYEE the
equivalent of EMPLOYEE's mortgage payment each month, beginning with the payment
due in August, 1995 until the earlier of (1) the date the house sells or (2) for
a period of six (6) months. To the extent this relocation allowance is not
utilized by EMPLOYEE, EMPLOYER agrees to reimburse EMPLOYEE
EMPLOYMENT AGREEMENT -- PAGE 1
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for real estate fees paid by EMPLOYEE for the sale of his home in Tucson,
Arizona. In any event, the maximum combined reimbursable expense covered by this
paragraph shall be $10,000.
BENEFITS
EMPLOYEE shall be provided with employee benefits and programs to the same
extent and in the same manner as those benefits and programs are available to
the other executive employees of EMPLOYER's parent.
TERM
The term of this Agreement shall be sixty (60) months beginning with the
effective date of this Agreement stated above, being July 24, 1995. If, after
the initial term of the Agreement has expired, the parties continue to do
business together as if this Agreement were still in effect, the practice
constitute a renewal of the Agreement until one of the parties notifies the
other, in writing, of its wish to terminate this Agreement.
TERMINATION
In the event of a material breach or neglect of duties by EMPLOYEE,
EMPLOYER may, at EMPLOYER'S option, terminate this Agreement by giving immediate
notice in writing without prejudice to any other remedy to which EMPLOYER may be
entitled at law, in equity, or under the terms of this Agreement. A material
breach of this Agreement includes but is not limited to: (1) EMPLOYEE's material
violation of the policies and rules of EMPLOYER; (2) an act of fraud committed
by EMPLOYEE; (3) nonperformance of EMPLOYEE's duties; or (4) the occurrence of a
material conflict of interest between EMPLOYEE and EMPLOYER. Notwithstanding the
foregoing, EMPLOYER agrees to give EMPLOYEE notice of such breach and a
reasonable period of time in which to cure such breach if the breach is capable
of cure.
STOCK OPTIONS
EMPLOYEE is entitled to stock options in accordance with a separate Stock
Option Incentive Agreement to be entered contemporaneously herewith.
INTELLECTUAL PROPERTY,
TRADE SECRETS AND CONFIDENTIAL INFORMATION
EMPLOYEE acknowledges the proprietary right of EMPLOYER in the service
marks, trademarks and trade names owned by EMPLOYER (either registered or
applied for) and the service marks heretofore used by EMPLOYER to identify its
services. During the term of employment with EMPLOYER, EMPLOYEE will or may have
access to and become familiar with trade secrets of EMPLOYER and trade secrets
EMPLOYMENT AGREEMENT -- PAGE 2
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licensed to EMPLOYER including, but not limited to, patents, formulas,
procedures, processes, patterns, contracts, methods, secret inventions,
presentations, scripts and policies, and EMPLOYEE shall not disclose, or cause
to be disclosed, the aforementioned trade secrets to any third party, nor shall
EMPLOYEE use any such trade secrets for EMPLOYEE'S own benefit or for the
benefit of any third party either related or unrelated, during the term of this
Agreement or any time after termination of this Agreement. EMPLOYEE further
agrees that EMPLOYEE will not use for EMPLOYEE's own benefit or disclose to any
person confidential information of EMPLOYER of any kind or character learned
while acting as EMPLOYEE for EMPLOYER, without the prior written consent of
EMPLOYER.
COVENANTS
The covenants on the part of EMPLOYEE shall be construed as an agreement
independent of any other provision of this Agreement; and the existence of any
claim or cause of action of EMPLOYEE against EMPLOYER, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by EMPLOYER of the covenants contained herein. EMPLOYEE agrees that all
covenants made by EMPLOYEE to EMPLOYER herein shall survive the termination of
EMPLOYEE'S agreement and be enforceable against EMPLOYEE by specific
performance, restraining orders or injunctions.
PREVIOUS AGREEMENTS
This Agreement supersedes all prior such agreements and represents the
entire agreement by and between EMPLOYER and EMPLOYEE except as otherwise
provided in this Agreement. No other agreement either written or oral with
respect to the employment of EMPLOYEE by EMPLOYER is binding upon the parties
hereto. This Agreement may not be changed except by written amendment duly
executed by both parties.
GOVERNING LAW
This Agreement shall be subject to and governed by the laws of the State of
Texas. Any and all obligations or payments are due and payable in Waco, McLennan
County, Texas.
PERSONAL SERVICES CONTRACT
This is a personal services contract and EMPLOYEE shall have no right to
transfer or assign EMPLOYEE's interest in this Agreement without the prior
written consent of EMPLOYER. This contract shall terminate automatically upon
the death of EMPLOYEE.
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WAIVER AND DELAY
The failure or delay in the enforcement of the rights detailed in this
Agreement by EMPLOYER shall not constitute a waiver of those rights or be
considered as a basis for estoppel. EMPLOYER may exercise its rights under this
Agreement despite the delay or failure to enforce the rights.
GENERAL AND ADMINISTRATIVE PROVISIONS
In the unlikely event that a dispute occurs or an action in law or equity
arises out of the operation, construction or interpretation of this Agreement,
the prevailing party shall bear the expense of attorney's fees and costs
incurred by the other party in the action.
If any provision of this Agreement shall, for any reason, be held violative
of any applicable law, and so much of the Agreement is held to be unenforceable,
then the invalidity of such a specific provision in this Agreement shall not be
held to invalidate any other provisions in this Agreement, which other
provisions shall remain in full force and effect unless removal of the invalid
provisions destroys the legitimate purposes of this Agreement, in which event
this Agreement shall be cancelled.
SIGNED this 28 day of May, 1995 but EFFECTIVE the 24th day of July, 1995.
EMPLOYER:
RAINBOW INTERNATIONAL CARPET DYEING
& CLEANING COMPANY
BY: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, CEO
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
EMPLOYMENT AGREEMENT -- PAGE 4
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