EXHIBIT 10.4 EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
Agreement dated this 1st day of June, 1996 by and between Xxxxxx Xxxxx
("Executive") and FineLine Properties, Inc. (the "Company").
WHEREAS the Company desires to employ Executive, and Executive desires
to accept employment with the Company, subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Period of Employment.
The Company shall employ Executive, and Executive shall serve the Company
during the period commencing on June 1, 1996, and continuing through and
including June 1, 2001 (the "Term"). The Term shall automatically be
extended by one (1) additional year, unless, at least sixty (60) days prior
to June 1, 2001 or any anniversary thereafter, the Company shall deliver to
Executive, or Executive shall deliver to the Company, written notice that
the Term shall not be so extended.
2. Duties and Responsibilities.
(a) During the Term, Executive shall be employed by the Company as Chief
Operating and Executive Officer and the Executive's employment with the
Company shall be full-time and exclusive. During the Term, Executive shall,
except during periods of vacation, sick leave, or other duly authorized leave
of absence, devote the whole of Executive's time, attention, skill, and
ability during usual business hours (and outside those hours when reasonably
necessary to Executive's duties hereunder) to the faithful and diligent
performance of such duties and the exercise of such powers as may from time
to time be assigned to or vested in Executive by the Company's Board of
Directors or by any officer of the Company superior to Executive. Executive
acknowledges and agrees that Executive may be required, without additional
compensation, to perform services for any business entity controlling,
controlled by, or under common control with the Company (such business
entities hereinafter individually and collectively, "Affiliates") and to
accept such office or position with any Affiliate as the Board of Directors
may require, including, but not limited to, service as an officer or director
of the Company or any Affiliate. Executive shall comply with all applicable
policies of the Company and Affiliates.
(b) Executive's services shall be performed at the Company's offices in
Kent, Ohio as well as at such other locations and subject to such travel
requirements as reasonably necessary to the performance of Executive's duties
hereunder.
3. Compensation.
(a) During the Term, as compensation for services rendered hereunder and in
consideration of this Agreement, the Company shall pay Executive a salary,
in accordance with the Company's then-prevailing payroll practices, at the
annual rate of $90,000.00 (ninety thousand USD), or such greater amount as
the Company may from time to time and in its sole discretion determine.
(b) During the Term, as additional compensation, Executive shall be
entitled to participate in and receive all benefits under any welfare
benefit plan or program (including, without limitation, medical, dental,
disability, group life (including accidental death and dismemberment)
and business travel insurance plans and programs), any retirement savings
plan or program (including, without limitation, 401(k) and pension), and
such other perquisites of office as the Company may, from time to time and
in its sole discretion, make available generally to employees of similar
rank as Executive. Such participation shall be subject to the terms and
conditions of such plans or programs, including, but not limited to, such
generally applicable eligibility provisions as may be in effect from time to
time.
(c) During the Term, as additional compensation, Executive shall be entitled
to participate in the Company's Supplemental Executive Retirement Plan
("SERP") pursuant to the terms and conditions thereof.
(d) The Company shall reimburse Executive for all reasonable, ordinary,
and necessary business expenses incurred in the performance of Executive's
duties hereunder in accordance with and subject to the terms and conditions
of the Company's then-prevailing expense policy. As a condition precedent
to obtaining such reimbursement, Executive shall provide to the Company any
and all statements, bills, or receipts evidencing the expenses for which
Executive seeks reimbursement, and such other related information or
materials as the Company may from time to time reasonably require.
4. Termination.
Unless Executive's employment is terminated pursuant to this Paragraph 4,
the Company shall continue to employ Executive and Executive shall continue
to serve the Company throughout the Term.
(a) This Agreement shall terminate automatically upon Executive's death.
(b) Upon Executive's "Disability", the payment of benefits under the
Company's short-term and long-term disability insurance programs, if
any, shall satisfy the Company's obligations under the foregoing
Paragraph 3(a). For purposes of this Agreement, Executive shall be
deemed to be under a disability if Executive shall be unable, by virtue
of illness or physical or mental incapacity or disability (from any
cause or causes whatsoever), to perform Executive's essential job
functions hereunder, whether with or without reasonable accommodation,
in substantially the manner and to the extent required hereunder prior
to the commencement of such disability, for a period exceeding 180
days. In the event Executive shall remain under a Disability for a period
exceeding 270 days, the Company shall have the right to terminate
Executive's employment hereunder at the end of any calendar month
during the continuance of such disability upon at least thirty (30) days prior
written notice to Executive.
(c) The Company shall have the right to terminate Executive's
employment at any time for "Cause". For purposes of this Agreement, Cause shall
include:
(i) material default or other material breach by Executive of
Executive's obligations hereunder;
(ii) failure by Executive to perform diligently and competently
Executive's duties hereunder; or
(iii) misconduct, dishonesty, insubordination, or other act by
Executive detrimental to the Company's good will or damaging to its
relationships with its customers, suppliers, or employees, including,
without limitation.
(d) The Company may terminate Executive's employment without Cause at
any time and without prior notice. In the event of such termination,
the Company shall
(i) pay to Executive an amount equal to the lesser of
(A) 8 months' salary from the date of termination, and
(B) Executive's salary for the remainder of the Term, such
amount to be paid in accordance with the Company's then-
prevailing payroll practices, and
(ii) continue Executive's participation, if any, in such group medical,
hospitalization and dental plans or programs as were in place
immediately prior to such termination, for a period equal to the
lesser of (A) 8 months from the date of termination, and (B) the
remainder of the Term.
(e) Upon termination of Executive's employment pursuant to any of the
foregoing Paragraphs 4(a), (b), (c), or (d), or upon expiration of the
Term, any right or benefit accrued by Executive or to which Executive
had become entitled pursuant to this Agreement prior to such
termination or expiration (other than payment of salary with respect
to periods after such termination or expiration), and any Company
obligation with respect to any such right or benefit, shall not be
extinguished by reason of such termination or expiration and, together
with any salary earned but unpaid as of the date of termination or
expiration and any unpaid reimbursable expenses outstanding as of
such date, shall be paid to Executive or Executive's estate, less any
outstanding amounts previously advanced by the Company to or on behalf
of Executive.
(f) The payments and benefits (if any) required to be provided to
Executive pursuant to this Paragraph 4 shall be in full and complete
satisfaction of any and all obligations owing to Executive pursuant to
this Agreement.
(g) In the event of resignation and or termination the Company shall
pay to the Executive all salary due and owing in full in accordance with
the Company's financial ability to do same. The Company shall either make
such payment in total, or in monthly increments within the financial
ability of the Company to do same, with such schedule to be provided to
the Executive within three weeks of such resignation and or
termination.
(f) In the event the Company's financial position enables it to do so,
in consideration of the Company's obligations to suppliers, investors
and other business interests, the Company shall at it option, revert
payment due to the Executive to the date of this Agreement.
5. Confidential Information.
Both during and after the Term, Executive shall not divulge or communicate
to any person, corporation, governmental agency, or other entity (except
in performing Executive's duties hereunder), or use for Executive's own
purposes, any trade secret or confidential commercial information, or
any other information, knowledge, or data of the Company or any Affiliate
which is not generally known to the public (including, but not limited to,
information relating to research, product development, manufacturing or
manufacturing processes, maintenance or repair processes, purchasing,
product or material costs, sales or sales strategies or prospects, pricing
or pricing strategies, advertising or promotional programs, product
information, or mailing or customer lists), and shall use Executive's best
efforts to prevent the publication or disclosure by any other person or
entity of any such secret, information, knowledge, or data. While Executive
is employed by the Company, all documents and objects made, compiled,
received, held, or used by Executive in connection with the business of the
Company shall remain the Company's property, and shall be delivered by
Executive to the Company upon the termination of Executive's employment,
for whatever reason, or at any earlier time requested by the Company. It
is understood that Executive shall retain ownership of Executive's personal
property, including Executive's private papers not containing any trade
secret or confidential commercial information, or any other information,
knowledge, or data of the Company or any Affiliate.
6. Unfair Competition.
(a) While Executive is employed by the Company, and during any period,
if any, during which the Company is making payments to Executive
pursuant to the foregoing Paragraph 4(d), Executive shall not, directly
or indirectly, whether or not for compensation, and whether or not as
an employee, be engaged in or have a financial interest in any other
business, continue or assume any other corporate affiliations, or
pursue any other commercial activities, duties, or pursuits whatsoever
without the prior written consent of the Company when said activities
are in competition with the business or interests of the Company.
(b) As a condition of employment with the Company, and as a material
inducement to the Company to employ Executive, the agrees that for a
period of one (1) year after the later of (i) termination of
Executive's employment, for whatever reason, and (ii) the conclusion of the
period, if any, during which the Company is making payments to Executive
pursuant to the foregoing Paragraph 4(d), Executive shall not, directly
or indirectly, whether or not for compensation, and whether or not as
an employee, be engaged in or have any financial interest in any business
competing with or which may compete with the business of the Company
(or with any business of any Affiliate for which the Executive performed
services hereunder) within any state, region or locality in which the
Company or such Affiliate is then doing business or marketing its
products, as the business of the Company or such Affiliates may then be
constituted.
(c) Executive agrees and acknowledges that, by virtue of Executive's
employment with the Company, Executive shall have access to and
maintain an intimate knowledge of the Company's activities and affairs,
including trade secrets and confidential commercial information, and other
confidential matters. As a result of such access and knowledge, and
because of the special, unique, and extraordinary services that
Executive is capable of performing for the Company or one of its
competitors, Executive acknowledges that the services to be rendered by
Executive pursuant to this Agreement are of a character giving them a
peculiar value, the loss of which cannot adequately or reasonably be
compensated by money damages. Consequently, Executive agrees that any
breach or threatened breach by Executive of Executive's obligations
under this Paragraph 6, or of Paragraphs 5 or 7 of this Agreement,
would cause irreparable injury to the Company, and that the Company shall
be entitled to (i) preliminary and permanent injunctions enjoining
Executive from violating such provisions, and (ii) money damages in the
amount of fees, compensation, benefits, profits or other remuneration
earned by Executive or any competitor as a result of any such breach,
together with interest, and costs and attorneys' fees expended to
collect such damages or secure such injunctions. Nothing in this
Agreement, however, shall be construed to prohibit the Company from
pursuing any other remedy, the Company and Executive having agreed that
all such remedies shall be cumulative.
(d) Executive acknowledges that the limitations set forth in this
Paragraph 6 shall not prevent Executive from earning a livelihood after
Executive leaves the Company's employ, but merely prevents unfair
competition against the Company for a limited period.
7. Solicitation of Employees.
Executive agrees that for a period of one (1) year after the later of (a)
termination of Executive's employment, for whatever reason, and (b) the
conclusion of the period, if any, during which the Company is making payments
to Executive pursuant to the foregoing Paragraph 4(d), Executive shall not,
directly or indirectly, employ any person who was employed by the Company or
any Affiliate or induce such person to accept employment other than with the
Company or any Affiliate.
8. Inventions.
Executive hereby agrees that any and all improvements, inventions,
discoveries, formulae, processes, methods, or designs, and any documents,
things, or information relating thereto (individually and collectively,
"Work Product") within the scope of any business of the Company or any
Affiliate which Executive may conceive or make, or may have conceived
or made during Executive's employment with the Company, shall be and are
the sole and exclusive property of the Company, and that Executive shall,
whenever requested to do so by the Company (whether during Executive's
employment or thereafter), at the Company's expense, execute any and all
applications, assignments, or other instruments, and do all other things
(including giving testimony in any legal proceeding) which the Company
may deem necessary or appropriate in order to (a) apply for, obtain,
maintain, enforce, or defend letters patent of the United States or any
other country for any Work Product, or (b) assign, transfer, convey, or
otherwise make available to the Company any right, title or interest which
Executive might otherwise have in any Work Product. Executive shall
promptly communicate, disclose, and, upon request, report upon and deliver
all Work Product to the Company, and shall not use or permit any Work
Product to be used for any purpose other than on behalf of the Company,
whether during Executive's employment or thereafter.
9. Arbitration.
(a) Any dispute or controversy between the Company and Executive
relating to this Agreement (except any dispute relating to the
foregoing Paragraphs 5, 6, or 7) or relating to or arising out of Executive's
employment with the Company, shall be settled by binding arbitration
in the City of Kent, State of Ohio, pursuant to the governing rules of the
American Arbitration Association. Judgment upon any resulting
arbitration award may be entered in any court of competent
jurisdiction.
(b) Notwithstanding anything herein to the contrary, the Company shall
not be required to arbitrate any dispute arising between it and
Executive relating to the foregoing Paragraphs 5, 6, or 7, but shall
have the right to institute judicial proceedings in a court of
competent jurisdiction within the State of Ohio, in the district or county in
which the Company's principal offices are located with respect to such
dispute or claim. Executive hereby consents to, and waives any
objection to, the personal jurisdiction and venue of the aforesaid courts, and
waives any claim that the aforesaid courts constitute an inconvenient
forum. If such judicial proceedings are instituted, the parties agree
that such proceedings shall not be stayed pending the outcome of any
arbitration proceedings hereunder.
10. Additional Obligations.
Both during and after the Term, Executive shall, upon reasonable notice,
furnish the Company with such information as may be in Executive's
possession, and cooperate with the Company, as may reasonably be requested
by the Company (and, after the Term, with due consideration for Executive's
obligations with respect to any new employment or business activity) in
connection with any litigation in which the Company or any Affiliate is or
may become a party. The Company shall reimburse Executive for all reasonable
expenses incurred by Executive in fulfilling Executive's obligations under
this Paragraph 10.
11. Notice.
Any notice or other communication required or permitted under this Agreement
by either party hereto to the other shall be in writing, and shall be deemed
effective upon
(a) personal delivery, if delivered by hand,
(b) three days after the date of deposit in the mails, postage prepaid,
if mailed by certified or registered mail, or
(c) the next business day, if sent by a prepaid overnight courier
service, and in each case addressed as follows:
If to Executive:
Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
If to the Company:
FineLine Properties, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
Either party may change the address or addresses to which notices are
to be sent by giving notice of such change of address in the manner
provided by this Paragraph 11.
12. Entire Agreement.
This Agreement represents the entire agreement between the Company and
Executive with respect to Executive's employment with the Company, and
supersedes and is in full substitution for any and all prior agreements
or understandings, whether oral or written, relating to Executive's
employment.
13. Amendment.
This Agreement may not be canceled, changed, modified, or amended orally,
and no cancellation, change, modification or amendment hereof shall be
effective or binding unless in a written instrument signed by the Company
and Executive. A provision of this Agreement may be waived only by a
written instrument signed by the party against whom or which enforcement
of such waiver is sought.
14. No Waiver.
The failure at any time either of the Company or Executive to require the
performance by the other of any provision of this Agreement shall in no way
affect the full right of such party to require such performance at any time
thereafter, nor shall the waiver by either the Company or Executive of any
breach of any provision of this Agreement be taken or held to constitute a
waiver of any succeeding breach of such or any other provision of this
Agreement.
15. Assignment.
This Agreement is binding on and for the benefit of the Company and Executive
and their respective successors, heirs, executors, administrators, and other
legal representatives. Neither this Agreement nor any right or obligation
hereunder may be sold, transferred, assigned, or pledged by the Company
(except to an Affiliate) or by Executive without the prior written consent
of the other. However, nothing in this Agreement shall preclude the Company
from consolidating or merging into or with, or transferring all or
substantially all of its assets to, another entity which assumes this Agreement
and all obligations and undertakings of the Company hereunder.
16. Interpretation and Severability.
In the event any provision of this Agreement, or any portion thereof, is
determined by any arbitrator or court of competent jurisdiction to be
unenforceable as written, such provision or portion thereof shall be
interpreted so as to be enforceable. In the event any provision of this
Agreement, or any portion thereof, is determined by any arbitrator or
court of competent jurisdiction to be void, the remaining provisions of
this Agreement shall nevertheless be binding upon the Company and Executive
with the same effect as though the void provision or portion thereof had
been severed and deleted.
AGREED TO THIS 1st DAY OF JUNE, 1996, BY AND BETWEEN;
THE EXECUTIVE:
s/s Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
THE COMPANY:
s/s Harcourt Xxxxxxx Wiltshire
-------------------------------
(Duly Authorized Officer)
FineLine Properties, Xxx.0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
