Exhibit 10.5
EMPLOYMENT AGREEMENT
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This Employment Agreement (hereinafter "AGREEMENT") is made by and
between Xxxx X. Xxxxxxxx, residing at c/o JCK Investments, 00 Xxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxx, XX 00000 (hereinafter "EMPLOYEE"), and STB, Inc. on behalf of
itself, its subsidiaries, affiliates, predecessors, successors, assigns; and
their directors, officers, employees and agents (hereinafter collectively
referred to as "STB"), with its principal place of business at 0000 Xxxxx 000
Xxxx, Xxxx, XX 00000.
This AGREEMENT replaces any and all prior employment agreements or oral
understandings between STB and EMPLOYEE and any prior employment agreements are
void.
WHEREAS, STB wishes to employ EMPLOYEE in its business and EMPLOYEE
wishes to work for STB; and
WHEREAS, EMPLOYEE possesses the requisite skills to assume the position
of President and in consideration of the rights and benefits described herein
wishes to assume the position of President.
NOW THEREFORE, for and in consideration of the mutual and respective
covenants and agreements contained herein, STB and EMPLOYEE agree as follows:
ARTICLE 1
EMPLOYMENT
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1.1 STB shall employ EMPLOYEE in the position of President for a
period of two (2) years commencing on January 1, 2004 and continuing until
terminated as provided in Article 4 of this AGREEMENT.
ARTICLE 2
DUTIES
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2.1 During the terms of this AGREEMENT, EMPLOYEE shall
competently, diligently, and loyally devote EMPLOYEE'S requisite time,
attention, and energy to the business affairs of STB and to the proper
performance of EMPLOYEE'S duties as President, EMPLOYEE shall exercise
EMPLOYEE'S responsibilities from STB'S place of business in Ramsey, New Jersey
or such other location as is mutually agreed upon.
2.2 Pursuant to the procedures and directives established from
time to time by STB, EMPLOYEE agrees to keep STB informed as to any and all
matters which concern the business of STB and as to EMPLOYEE'S activities as
President. Further, EMPLOYEE agrees and understands that at all times EMPLOYEE
is subject to the supervision and control of STB'S Board of Directors.
2.3 During the term of employment, EMPLOYEE may hold an interest,
directly or indirectly, as partner, officer, director, stockholder, consultant,
employee, or in any other capacity, in any business which is not directly and/or
indirectly competitive with the business of STB and its affiliated companies.
2.4 If EMPLOYEE has a question at any time as to whether any
activity in which EMPLOYEE is involved or about to be involved is directly or
indirectly competitive with the business of STB and its affiliated companies,
EMPLOYEE shall immediately raise the issue with the Board of STB and shall be
conclusively bound by its determination as to whether the activity is directly
or indirectly competitive with the business of STB and its affiliated companies,
provided that such determination shall not be arbitrary or unreasonable.
ARTICLE 3
COMPENSATION
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3.1 Salary. During the term of EMPLOYEE'S employment, STB shall
pay, and EMPLOYEE shall accept, a gross annual salary of $100,000.00, payable
weekly at $1,923.08 per week, less mandatory and authorized deductions. The
Board shall review EMPLOYEE'S performance annually to determine in its sole
discretion whether it should be increased.
3.2 Bonus. EMPLOYEE shall be reimbursed by STB for business
related expenses reasonably incurred in connection with the execution of
EMPLOYEE'S duties. Itemized expenses shall be submitted in accordance with the
STB'S procedures.
3.3 Employee Benefits. EMPLOYEE shall be entitled to participate
in and shall receive benefits under STB'S employee benefit plans under the terms
and conditions applicable to employees of EMPLOYEE'S level within STB. These
benefits presently do not yet exist. STB reserves the right to change any and
all benefit plans from time to time in its sole discretion.
3.4 Pension Benefits. EMPLOYEE shall be included in such employee
pension programs as STB maintains for other employees of a comparable level in
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accordance with the terms and conditions of such pension programs applicable to
participating employees. STB reserves the right to modify, change or eliminate
such pension plans at any time in its sole discretion. No pension plan exists at
this time.
ARTICLE 4
TERMINATION
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STB shall have the right to terminate this AGREEMENT under any of the
circumstances set forth below. If this AGREEMENT is terminated for any of the
reasons in paragraphs 4.1, 4.2 or 4.3, then EMPLOYEE will not be entitled to any
further compensation, except unpaid salary and/or unpaid business expenses. If,
however, this AGREEMENT is terminated for the reason set forth in paragraph 4.4,
then EMPLOYEE shall be paid as provided in paragraph 4.4.
4.1 For Cause. STB may terminate EMPLOYEE'S employment for such
cause immediately and without advance notice or financial responsibility, i.e.
entitlement to severance payments. By way of illustration only, a termination
for such cause includes, but is not limited to the following: any act of
dishonesty, insubordination (direct and willful refusal to perform job related
duties or direct challenges to the authority of a superior), alcoholism or drug
addiction which prevents EMPLOYEE from successfully performing the job related
functions of EMPLOYEE'S position, breach of any terms of this AGREEMENT, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, or the willful or reckless violation of any
law, rule or regulation other than traffic violation or similar offenses.
4.2 Death. EMPLOYEE'S employment shall terminate immediately in
the event of the death of EMPLOYEE.
4.3 Inability to Perform. STB may terminate EMPLOYEE'S employment
if EMPLOYEE has been unable to perform EMPLOYEE'S duties pursuant to this
AGREEMENT, for whatever reason, for a continuous period of six (6) months or any
six (6) month period within a continuous twelve (12) month period, and has not
returned to work full time within ten (10) days of notice thereafter by STB
requesting such return.
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4.4 Without Cause
a. Either STB or EMPLOYEE may terminate this AGREEMENT
at any time without cause.
b. If STB decides to terminate this AGREEMENT without
cause, then it shall pay to EMPLOYEE severance in the amount of two (2) years of
salary. The severance shall be paid as a lump sum.
c. If STB alters the duties of the EMPLOYEE in such a
way that his responsibilities or authorities are reduced; if EMPLOYEE is
required to suffer a substantial change in his physical surroundings or
reporting relationships; or if STB decides to relocate, then the EMPLOYEE shall
have the right to consider such action to be a constructive termination, then
the EMPLOYEE shall have the right to consider such action a constructive
termination without cause under Section 4.4. If EMPLOYEE declares such action to
be a constructive termination, then the EMPLOYEE will receive the severance set
forth in 4.4(b). If the EMPLOYEE accepts the relocation, then STB will pay
EMPLOYEE'S relocation expenses in accordance with STB policies.
d. Change of Control. In the event that there is a
change in ownership of more than 25% of the shares of stock outstanding of STB,
then EMPLOYEE, at his option, within 180 days of such change of control, may
choose to terminate his employment pursuant to this paragraph and receive the
two years of severance pay provided for in Section 4.4(b) above.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE
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EMPLOYEE represents and warrants to STB as follows:
5.1 Service by EMPLOYEE as an employee of STB as contemplated by
this AGREEMENT will not result in the breach by EMPLOYEE or constitute a default
by EMPLOYEE under any written or oral agreement (including agreements with
former employers), instrument, decree, judgment or order to which EMPLOYEE is
bound. EMPLOYEE is not bound by any secrecy, non-disclosure or non-competition
agreement that would in any manner interfere with EMPLOYEE'S carrying out this
AGREEMENT.
5.2 To the best knowledge of EMPLOYEE, there are no actions, suits
or proceedings pending or threatened against EMPLOYEE that will adversely affect
the transactions contemplated by this AGREEMENT.
5.3 To the best knowledge of EMPLOYEE, there are no restrictions
or facts, which prevent EMPLOYEE from accepting and fulfilling EMPLOYEE'S duties
as contemplated by this AGREEMENT.
ARTICLE 6
ENTIRE AGREEMENT AND MODIFICATION
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This AGREEMENT supersedes and cancels any previous employment
agreements or oral understandings relating to EMPLOYEE, represents the entire
understanding between the parties with reference to the subject matter hereof,
may not be modified or terminated, and no requirement or breach of this
AGREEMENT may be waived other than by a document in writing signed by EMPLOYEE
and an authorized representative of STB.
ARTICLE 7
CONTROLLING LAW AND JURISDICTION
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STB is located in New Jersey and EMPLOYEE'S relation with STB is based
in New Jersey. This AGREEMENT was made in New Jersey. For purposes of analysis
and interpretation of this Agreement, New Jersey law shall apply and control.
EMPLOYEE and STB consent to the jurisdiction of the Superior Court of New Jersey
for purposes of litigating any disputes under this AGREEMENT.
ARTICLE 8
SEVERABILITY
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If any provision of this AGREEMENT shall be found to be contrary to law
or otherwise unenforceable by any court, only that provision shall be invalid,
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and all other provisions of this AGREEMENT shall remain valid and enforceable.
If any court finds a provision of this Agreement to be overly broad, that court
may modify that provision to the extent necessary to make it valid and
enforceable.
ARTICLE 9
BINDING EFFECT
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This AGREEMENT is binding on and inures to the benefit of STB and
EMPLOYEE and their respective successors, assigns, heirs, legal representatives,
executives and administrators.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the
date first above written. STB, INC. EMPLOYEE;
/s/ W. XXXXX XXXXX, XX. /s/ XXXX X. XXXXXXXX
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W. XXXXX XXXXX, XX., ESQ., V.P. XXXX X. XXXXXXXX
Dated: January 1, 2004 Dated: January 1, 2004
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