EXHIBIT (10)(5) Employment Agreement with CEO Xxxxxxx Winzkowski
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of this 23rd day
of March 2003, by and between MARKETING WORLDWIDE, LLC, a Michigan limited
liability company, whose address is 00000 Xxxxx Xx, Xxxxx X, Xxxxxxxx Xxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Employer") and Xxxxxxx Winzkowski
whose address is Palm Harbor, Florida (hereinafter referred to as "Employee").
W I T N E S S E T H
WHEREAS, Employer wishes to secure the employment of Employee upon the terms and
conditions hereinafter set forth; and
WHEREAS, Employer is engaged in the business of the development, design and
supply of automotive accessories to the port and other customers; and
WHEREAS, Marketing WorldWide is seeking aid in the engineering, sales, design
and development of certain products; and
WHEREAS, the business of the development, design and supply of automotive
accessories to the customers is highly competitive and the success of Employer
depends in great part of the development, maintenance and retention of its Trade
Secrets (as defined in Paragraph 7); and
WHEREAS, Employer has compiled and continues to supplement its Trade Secrets;
and
WHEREAS, the unauthorized use, disclosure or appropriation of Employer's Trade
Secrets by Employee during or after Employee's employment with Employer would
cause such irreparable damage to Employer that Employer has taken preventative
measures, including the execution of this Agreement and similar agreements and
the observance of operating practices designed to secure and restrict the
dissemination of its Trade Secrets; and
WHEREAS, Employee acknowledges that the Trade Secrets to be disclosed to
Employee during the course of employment are of such value and importance to
Employer that it is reasonably necessary to restrict Employee from any business
related contact or relationship whatsoever with certain Customers and employees
of Employer and from disclosing, appropriating or using Employer's Trade Secrets
without Employer's permission both during employment and thereafter, regardless
of the reasons for termination of the employment relationship; and
WHEREAS, Employer and Employee wish to have an employment relationship on the
basis of the premises recited above and according to the specific provisions set
forth below;
NOW, THEREFORE, in consideration of the above recitals of fact (which recitals
are hereby incorporated as covenants of the parties hereto) and the several
promises, covenants and agreements hereinafter set forth, the parties agree as
follows:
1. EMPLOYMENT. The Employer hereby employs Employee and Employee hereby accepts
such employment, in accordance with the terms and conditions hereinafter set
forth.
2. EMPLOYMENT TERM. The term of this Agreement shall commence on October 1, 2003
("Commencement Date") and shall terminate on September 30, 2005 ("Termination
Date") or on Employee's death or any other termination of this Agreement,
whichever is first to occur. If Employee continues employment beyond the
termination date of Employee's contract and the parties hereto have not executed
a subsequent Employment Agreement, such continued employment shall continue on
the same terms and conditions as set forth in this Agreement, until the parties
execute a new Employment Agreement.
3. DUTIES AND RESPONSIBILITIES. During the term of this Agreement, Employee will
serve as CEO and President. Employee will have the responsibility of Executive
and Sales Management. Employee shall perform other such services, as Employer
may, at its sole and absolute discretion, deem necessary and appropriate in the
furtherance of Employer's business. Employee agrees to adhere to all rules and
policies established by Employer.
4. FULL-TIME EFFORT/EXTENT OF SERVICE. Employee agrees that he will at all
times, faithfully, industriously and to the best of his ability, experience and
talents, perform all of his duties and responsibilities hereunder and devote his
full-time attention and energy to the business of the Employer.
5. COMPENSATION. As compensation for services rendered under this Agreement:
(a) The Employer shall pay Employee a salary of $120,000 in the
first year and $180,000 in the second year of the contract
less withholding as required by law;
(b) The availability of a company vehicle including vehicle and
travel expenses for company business. Vehicle will be stored
inside over night in a secure location.
(c) Employer may, in its sole and absolute discretion, pay
Employee additional compensation for services performed in
connection with this Agreement;
(d) In addition to the Employee's Salary, the Employee shall be
entitled to the following benefits:
Medical and vacation benefits as established by company for
all employees.
6. DEATH DURING EMPLOYMENT. If Employee should die during the term of this
employment, the Employer shall pay to Employee's estate the compensation which
would otherwise be payable to him up to the end of the month in which his death
occurs.
7. CONFIDENTIALITY. Employee acknowledges and agrees that Employee will be
performing certain services that involve access to confidential information
concerning the Employer and its operations relating to design and development,
customer lists or customer contacts, pricing formulas, internal business forms,
technical procedures, services, marketing strategies or plans of the Employer or
its clients, matters of a technical or business nature, which the Employer has
expended substantial resources in developing and cultivating ("Trade Secrets"),
Employee agrees that he shall not, either during the term of this Agreement or
anytime thereafter, use or disclose any Trade Secrets of Employer or any other
proprietary information, knowledge or data concerning the operations, business
affairs or practices of the Employer, its clients and others doing business with
it.
8. BREACH OF TRUST. Employee acknowledges that he will learn and come in contact
with certain proprietary information or facilities that Employer considers Trade
Secrets. Employee understands that if, either during employment or anytime
thereafter, Employee discloses to others or uses for Employee's own benefit or
copies or makes notes of any of these Trade Secrets and disseminates or uses the
same, such conduct will constitute a breach of the confidence and trust bestowed
on Employee by Employer and which may result in Employee being liable to
Employer for damages.
9. BUSINESS RECORDS. Employee agrees that all documents, reports, memoranda,
files, manuals, books, writings, materials, computer software programs, disks
and other data storage or processing media, and all copies thereof, which
contain any confidential information (collectively "Business Records") are the
sole and exclusive property of the Employer and shall remain as such upon
termination of Employee's employment with Employer (regardless of whether such
business records were created, modified or developed, in whole or in part, by
Employee). At no time during Employee's employment with the Employer or
following the termination thereof, shall Employee have any right or privilege of
copying or obtaining any Business Records for any purpose whatsoever, and no
Business Records shall be removed from the office of the company, without the
prior written consent of the president of Employer.
10. COVENANT NOT TO COMPETE. Employee agrees that during the term of Employee's
employment and for a one (1) year period following the termination of his
employment, he will not, for any reason whatsoever, directly or indirectly
(whether as an employee, agent, representative, consultant, independent
contractor or in any capacity of another company or otherwise) (i) contact,
solicit or attempt to solicit, any client, customer, agent, representative or
employee of the Employer, (ii) perform the same or similar services performed by
Employer for any of Employer's current customers or former customers for whom
Employer has performed such services, or (iii) otherwise interfere with or
attempt in any manner to disrupt any relationship or agreement between the
company and any of its clients, customers, employees, agents, representatives or
others doing business with the company.
11. TERMINATION OF EMPLOYMENT. Employee agrees and understands that his
employment with the Employer is and shall always remain "AT WILL." This means
that the company or Employee may terminate Employee's employment at any time,
with or without cause or prior notice, or for any or no reason whatsoever.
Nothing in this Agreement shall be construed to require the Employer to
terminate the Employee's employment for "just cause." Employee acknowledges and
understands that under no circumstances whatsoever shall verbal statements made
by any individual employed by or affiliated with Employer, including without
limitation, the owner, president, chairman of the board of directors or any
other individual, alter or in any way modify the "at will" nature of Employee's
employment. Employee further acknowledges that the only allowable method to
alter, change or modify the "at will" nature of this Employment Agreement and
Employee's employment with Employer is through the mutual assent of Employer and
Employee in writing. No representative of the company has the authority to enter
into any agreement or promise to employ Employee on any terms and conditions
different from those set forth herein, except the president of the company and
then only when done so by written agreement signed by the president and
employee.
12. RIGHTS OF EMPLOYEE UPON TERMINATION In the event that Employee is
terminated, Employee shall only be entitled to receive the unpaid salary accrued
to the date of termination. The amounts paid to Employee by Employer shall be as
full settlement of its obligations to Employee hereunder.
13. FORFEITURE OF BENEFITS. In the event Employee breaches any provision of this
Agreement, Employee will forfeit his right to further participation in any of
Employer's benefit packages or plans. This provision shall not be construed and
is not intended to be a limitation upon any other remedy that Employer may have
for breach of this Agreement.
14. DAMAGES FOR BREACH OF CONTRACT. In the event of a breach of this Agreement
by either the Employer or the Employee resulting in damages to the other party,
such party may recover from the party in breach hereof any and all damages that
may be sustained, including actual, reasonable attorney fees and court costs.
15. ASSIGNMENT. The parties agree that this Agreement is personal to the
Employer and that Employee cannot assign Employee's interest in this Agreement.
The parties further agree that Employer may assign its interest in this
Agreement upon notification of the same to Employee.
16. ENFORCEABILITY. The Employee expressly agrees and acknowledges that a loss
arising from a breach of any provision under Paragraphs 7, 8, 9, or 10 may not
be reasonably and equitably compensated by money damages. Therefore, the
Employee agrees that in a case of any such breach, the Employer shall be
entitled to injunctive and/or other extraordinary relief in order to prevent the
Employee from engaging in any of the foregoing prohibited activities, which
relief shall be cumulative and in addition to any and all other additional
remedies to which the Employer may be entitled to at law or equity. In the event
that any court of competent jurisdiction shall determine that any part or all of
the provisions of Paragraphs 7, 8, 9, or 10 are unenforceable or invalid due to
the scope of the activities restrained, the geographical extent of the
restraints imposed, the duration of the restraints imposed, or otherwise, the
Parties hereby expressly intend, agree and stipulate that under such
circumstances, the provisions of Paragraph 7, 8, 9, or 10 shall be enforceable
to the fullest extent and scope permitted by law and that the Parties shall be
bound by any judicial modifications to the provisions therein which said court
of competent jurisdiction may make in order to carry out the intentions of the
Parties as provided herein.
17. COUNSEL/AMBIGUITY. Each party hereto agrees, represents and acknowledges
that such party (i) is entering into this Agreement voluntarily, after and due
consideration, (ii) has read this Agreement and the Exhibits and documents
delivered concurrently herewith and fully understands all the terms and
conditions thereof and the ramifications and consequences of same, and (iii) has
received the advice and counsel of such party's own attorney prior to entering
into this Agreement and any Exhibits and documents delivered concurrently
herewith.
18. SEVERABILITY. It is agreed that if any part, term or provision of this
Agreement is held by the courts or any other governing tribunal to be illegal or
in conflict with any law, rule or regulation then, the validity of the remaining
portions or provisions shall not be affected and the rights and obligations of
both parties hereto shall be construed and enforced as if this Agreement did not
contain the particular part, term or provision held to be invalid.
19. NOTICES. All notices given shall be in writing and shall be sent by
registered or certified mail to the parties at their respective addresses set
forth above or such other addresses as either party may make known to the other.
20. ENTIRE AGREEMENT. This Agreement embodies the entire agreement between the
Employer and Employee. There are no other promises, terms, conditions or
obligations other than those contained herein and this Agreement shall supersede
all previous communications, representations or agreements, either verbal or
written, between the parties hereto or their agents.
21. CAPTIONS. The captions contained in this Agreement are for reference only
and do not form a substantive part of this Agreement and shall not restrict or
enlarge the substantive provisions of this Agreement.
22. WRITTEN MODIFICATION. There shall be no modification of this Agreement,
except in writing, and executed with the same formalities as this Agreement. No
persons other than Employer and Employee shall have authority to agree to modify
or change this Agreement.
23. CHOICE OF FORUM. The parties agree that all actions arising directly or
indirectly out of this Agreement shall be litigated only in the United States
District Court - Eastern District of Michigan or the Xxxxx County, Michigan
Circuit Court, and the parties hereby consent to the jurisdiction and venue of
those courts over the parties to this Agreement.
24. LAW GOVERNING. It is mutually understood and agreed that this Agreement
shall be governed and construed in accordance with the laws of the State of
Michigan both as to interpretation and performance.
("Employer") MARKETING WORLDWIDE, LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Member
("Employee")
By: /s/ Xxxxxxx Winzkowski
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Name: Xxxxxxx Winzkowski
