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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") effective the 1st day of January, 1996
by and between CRAGAR INDUSTRIES, INC., ("Employer"), a Delaware corporation,
and Xxxx Xxxxxxx ("Employee").
WHEREAS, Employer is a corporation, duly organized, incorporated and
existing under and by virtue of the laws of the State of Delaware, that conducts
its business primarily in the manufacture and sale of automotive wheels and
wheel accessories (defined as steel, composite and aluminum wheels for
automobiles, racing vehicles and other vehicles for both on and offroad
operation) and,
WHEREAS, Employer and Employee desire to enter into this Agreement to
provide for the employment of Employee and to set forth the rights and duties of
the parties hereto.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, acknowledged by the parties to be adequate and sufficient, the
parties hereto intending to be legally bound agree as follows:
1. Employment and Duties:
a) Employer hereby employs Employee, and Employee hereby
accepts such employment, to render services in the name of and
for the benefit of Employer, including but not limited to the
overall operation of Employer's business, which manufactures
and sells automotive wheels and related products throughout
the World. Exhibit "A", hereof, further describes Employee's
present position and work responsibilities on behalf of
Employer; however, these responsibilities are subject to
change by the Employer.
b) At all times Employee is to promote Employer's interest.
c) Employer will provide Employee with the necessary work
space, support staff, supplies, stationery and business cards.
2. Term
This Agreement shall commence on January 1, 1996 and shall continue
thereafter until terminated as herein provided.
3. Termination of the Agreement
a) Employer may terminate this Agreement, at will and without
notice, with or without cause at any time within the first
ninety (90) days of Employee's employment.
b) After Employee's probationary period as set forth in 3(a)
above, Employee's employment shall continue to be at will.
Employer may terminate this Agreement at any time upon not
less than thirty-days advanced written notice to Employee,
with or without cause, for any reason whatsoever. The
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decision to require Employee to report to work after receiving
notice is left entirely to Employer's discretion.
c) This Agreement shall terminate immediately upon the
happening of any of the following events, which ever shall
occur first:
i) expulsion, suspension or other
disciplinary action taken against Employee by the
final action of any state or federal regulatory body
or professional or scientific organization;
ii) death of Employee; in the event of the
death of the Employee, his legal representative shall
be entitled to receive his compensation for the
period of employment to the date of death;
iii) inability to perform the essential
functions of his job with or without reasonable
accommodation and after exhausting any and all rights
to leave that may exist.
4. Exclusive Service:
Employee shall devote his full working time and attention to the
business of Employer. During the term of this Agreement, Employee shall
not directly or indirectly, unless specifically authorized in writing
by the Employer, render services to or for any person or firm or engage
in any business or service that competes with the interests of
Employee. Employee shall have no authority to enter into contracts or
agreements binding Employer or to create obligations on the part of
employer, except as specifically authorizes by the Board of Directors
of Employer or the President.
5. Compensation:
Employee shall be compensated for services rendered as set forth on
Exhibit "B".
6. Restrictive covenant; Trade Secrets:
In consideration of both Employer's hiring of Employee, the payments
made to Employee under this Agreement, as well as the wide access
Employer grants to Employee to review and become familiar with
Employer's business, including certain valuable trade secrets and, in
view of other consideration, Employee hereby covenants and agrees as
part of and ancillary to this Agreement, that Employee, for a
reasonable period of time after termination of this Agreement, whether
with or without cause, shall not for any reason directly or indirectly,
by any means or device whatsoever, for himself or on behalf of, or in
conjunction with any person, partnership or corporation. do any one or
more of the following:
a) induce, entice, or hire, or attempt to hire or employ any
employee of Employer;
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b) compete with Employer or solicit any customers of employer
in the products and services provided by Employer, or engage
directly or indirectly, in the business of manufacturer and/or
importing to distribute Automotive wheels or accessories.
Directly or indirectly engaging in the business of Automotive
wheels or in any competitive business shall include, but not
be limited to, engaging directly or indirectly in business as
owner, partner, or agent, or an employee of or consultant to
any person, firm, corporation, or other entity engaged in such
business, or in being interested directly or indirectly in any
such business, or in being interested directly or indirectly
in any such business conducted by any person, firm,
corporation, or other entity.
Employee and Employer hereby expressly agree that "a reasonable period
of time" as used within this Paragraph 6(a), shall be one year.
Employee and Employer hereby expressly agree that "a reasonable period
of time" as used within this paragraph 6(b), shall be one year from the
date of the last payment for any purpose from Employer to Employee.
Employee and Employer hereby agree that the geographic restriction for
the covenant not to compete in this paragraph 6 shall be Ohio,
California, North Carolina, Michigan, Arkansas, Tennessee, Texas,
Kansas, Missouri, New York, New Jersey, and Florida.
Employer and Employee agree that the covenant set forth in paragraphs 6
(a) and 6 (b) shall accrue to the benefit of Employer, irrespective of
the reason for termination of this Agreement and the corresponding
employment relationship created herein or Employee's performance
hereunder.
In connection with the limited protection afforded Employer by the
ancillary covenants contained within paragraphs 6(a) and 6(b), Employee
recognizes that Employer's need for the covenants is based on the
following:
a) Employer has expended and will continue to expand
substantial time, money and effort in developing (i) a
valuable list of customers and (ii) information about
technical problems, purchasing and sales;
b) Employee will, in the course of his employment, be
personally entrusted with and exposed to Employer's trade
secrets;
c) Employer during the term of this Agreement and after its
termination, will be engaged in a highly competitive industry
in which many firms, including Employer, compete;
d) Employer sells its products throughout the world;
e) Employer, pursuant to acquiring certain patents, technology
and associated trade secrets and know-how, will further
develop its product line;
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f) Employee could, after having access to Employer's financial
records, contracts, patents, technology and associated trade
secrets and know-how, perform his obligations under this
Agreement, and receive training by and experience with
Employer, and after reviewing Employer's trade secrets, become
a Competitor; and
g) Employer will suffer great loss and irreparable harm if
Employee were to terminate his employment and thereafter enter
directly or indirectly, into competition with Employer.
7. Confidential Information:
Employee agrees that he will not, during or after his term of
employment with Employer, reveal, divulge, furnish, use to his own
advantage or the advantage of any other person or business enterprises,
or make accessible or known in any manner, any confidential information
or confidential records pertaining to the Employer's business,
including, without limitation, information regarding:
i) customers or potential customers of Employer;
ii) employees and associates of Employer;
iii) training programs of Employer,
iv) formulas, patterns, devices, inventions, processes,
designs, specifications and suppliers; or
v) other proprietary, confidential or secret information
relating to the business, products, activities or operating
aspects of Employer (hereinafter collectively the Confidential
Information") to which he has access or which he develops
during the course of his services hereunder, or under any
prior agreement between the parties, to any person not
authorized by Employer.
Employee understands that Confidential Information is information not
generally available to the public concerning the business and affairs
of Employer which Employer desires to keep secret; and includes all
records not generally available to the public containing information
concerning the business and affairs of Employer regardless of the media
used to create the records, which records Employer desires to keep
secret. All files, records, designs, documents, drawings,
specifications, equipment, and similar items relating to the business
of Employer, whether prepared by Employee or otherwise coming into his
possession, shall remain the exclusive property of Employer and shall
not be removed from the premises of Employer under any circumstances
whatsoever without the prior written consent of Employer, except in the
normal course of business.
In the event that Employee violates the terms of this Paragraph 6 or 7,
Employer, shall be entitled to obtain injunctive relief to prohibit
Employee from such practices and seek or request money damages for any
injury to Employer resulting from such
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competition.
8. Amendment; Binding Effects:
This Agreement constitutes the entire understanding between the
parties, and the same shall not be changed, modified or altered unless
it is done in writing and signed by both Employer and Employee. This
Agreement shall be construed and regulated, and its validity and effect
shall be determined, according to the laws of the State of Arizona. If
any term, provision, covenant or condition of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the provisions shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
Notwithstanding the above, the court shall have the authority to modify
this agreement to make it enforceable. This Agreement shall be binding
upon the parties hereto, there respective heirs, executors,
administrators, successors and assigns. Whenever any particular gender
is used in this Agreement, it shall be deemed to include any other
gender, and the singular and the plural shall be deemed to be
interchangeable, when the meaning and context so requires.
Any part of this Agreement may be modified by written amendment or
modification of this Agreement shall be deemed to be effective unless
or until executed in writing by the parties hereto with the same
formality attending execution of this Agreement.
9. Waiver:
The waiver by Employer of it breach of any provision of this Agreement
by Employee and/or the waiver by Employee of a breach of any provision
of this Agreement by Employer, shall not operate or be construed as a
waiver of any subsequent or additional breach by either party.
10. Assignment:
The rights and obligations of Employer and Employee under this
Agreement are of a personal nature and, therefore, this Agreement and
the rights and obligations of the parties hereto are not assignable by
either party.
11. Notice:
Any notice required or permitted to be given under this Agreement shall
be sufficient if in writing, and shall be deemed to have been given at
the time when sent by certified mail, return receipt requested,
addressed to the address of the respective parties below:
a) To the Employer: Cragar Industries, Inc.
Att: Xxxxxxx X. Xxxxxxxxx
President
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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With a copy to: Xxxxx & Xxxxxx
Att: Xxxxx Xxxxxxxxxxxxx, Esq.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
b) To the Employer: Xxxx Xxxxxxx
Address:
provided, however, that any notice of change of address shall be
effective only upon receipt.
12. Severability:
The provisions of this Agreement are severable and if any one or more
provisions are determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable shall, nevertheless,
be binding and enforceable..
13. Captions:
The captions of this Agreement are for reference only and do not affect
the meaning of any term or provision herein.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed by an officer duly authorized to execute the same and Employee
has signed this Agreement this 1st day of January, 1996, at 5:24 pm.
EMPLOYER:
CRAGAR Industries, Inc.
BY: Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President/CEO
EMPLOYEE:
Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Vice President, Operations
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