October 11, 1995
Xxxx Xxxxxxx
000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Re: Position with Xxxx International Holdings, Inc.
and Xxxx Industries, Incorporated
Employment Agreement
Dear Xx. Xxxxxxx:
As per our recent discussions, Xxxx International Holdings, Inc. and Xxxx
Industries, Incorporated (collectively referred to as "Xxxx") are offering you
the position of Vice President of Marketing for Xxxx International Holdings,
Inc. and Xxxx Industries, Incorporated. This correspondence sets out the terms
of our offer to you, except for the terms of our employee handbook, which
reflect policies and procedures of Xxxx International Holdings, Inc. and its
subsidiaries including Xxxx Industries, Incorporated (the "Company"), which are
subject to change, and apply to you.
If the terms offered in this letter are acceptable to you, please sign the
letter at the bottom. We hope that you will accept our offer and look forward to
making you part of our management team.
Position: Vice President of Marketing
Base Salary: $115,000 per year
Bonus: You will be eligible for any executive bonus plan offered by Xxxx
Industries, Incorporated and will be in the thirty percent (30%) bonus bracket
for the current Short Term Incentive Plan for Fiscal 1996. Xxxx Industries,
Incorporated reserves the right to change the bonus plan at the end of any plan
year as applied to the following or next plan year. Also, each bonus plan will
be evaluated for any particular year, and it is understood that future bonus
plans have not been adopted and have yet to be determined or approved and in
some years there may be no bonus plan. For this year's bonus plan, you are
eligible to receive a pro rata bonus, if the plan goals and trigger points are
achieved. The bonus you may receive will correspond to your actual date of
commencement of employment through the end of the plan year or June 30, 1996.
Signing Bonus: $15,000 payable on or before October 23, 1995.
Stock Options: You will be granted Fifty Thousand (50,000) options to purchase
Xxxx International Holdings, Inc. Common Stock, subject to Board approval. The
option exercise price will be set as of the fair market value on the date of
Board approval. In addition, any options, if granted, will be subject to the
terms of Xxxx International Holdings, Inc.'s Incentive Stock Option Plan and/or
Plans. The Board of Directors retains the right and discretion to modify all
stock option plans. The vesting schedule for any stock options granted shall be
determined by the Board of Directors. You must be employed on successive
anniversary dates of your date of hire with no break in service for any vesting
to occur.
Benefits: You are entitled to all benefits offered to employees of Xxxx
Industries Incorporated.
Vacations: You will be eligible for a three (3) week paid vacation, vesting
according to Xxxx Industries, Incorporated's vacation benefits.
In the position of Vice President of Marketing, you will be provided with
confidential, trade secret, and/or proprietary information of Xxxx International
Holdings, Inc., and its subsidiaries, which includes Xxxx Industries,
Incorporated, and/or any company acquired by Xxxx International Holdings, Inc.
or its subsidiaries (collectively referred to in this letter as the "Company").
This includes, but is not limited to the following confidential, trade secret,
and/or proprietary information:
1. Sales activities, sales records, sales histories and/or how sales have
developed or changed in a particular geographical area or market or for a
particular product; customer lists and/or vendor lists or knowledge of all of
the Company's customers and/or potential customers and/or vendors; and
2. The quantity of products purchased from the Company by its customers and
the prices paid, the Company's purchasing activities, advertising and
promotional activities, past and present, potential sales and/or markets, market
strategies; and
3. Products' specifications, materials, costs; development of new products;
inventions, modifications of current products, and information pertaining to all
aspects of the Company's research and development; and
4. The quantity of various products purchased from the Company and/or the
product mix as they relate to overall sales of all products and/or a particular
product; and
5. The reasons for the use by the Company of certain methods of attachment
of its products to the vehicles; manufacturing processes and/or costs and/or
time and/or labor studies; the products' designs, dimensions, and tolerances;
and
6. The quantity of materials purchased from suppliers and/or the reason for
the use of certain materials; and
7. Shipping methods, pricing, profit margins per product; and
8. The financial information which is not made public in the Company's
press releases, quarterly reports, Securities and Exchange Filings, and/or the
Company's annual reports; and
9. Information concerning the Company's management, financial conditions,
financial operations, purchasing activities, marketing plans, strategic plans,
information systems, communication systems, planning activities, operational
activities and plans, investor relations activities, interdepartmental
communication or operational communication activities, and business plans; and
10. All other types and categories of information which are generally
understood by persons involved in the automotive aftermarket industry or any
manufacturing operations to be trade secrets, and or confidential information
and/or proprietary information.
You agree that you will not disclose or use at any time in any manner any
confidential trade secret and/or proprietary information as defined in this
letter or elsewhere or subsequently revealed to you to be confidential, a trade
secret or proprietary information.
You agree in the event your employment with the Company is terminated, whether
voluntarily or otherwise, that you, for a period of one (1) year from the date
of termination of your employment, shall not engage or participate in (whether
as an employee, shareholder, owner, officer, director, partner, consultant,
advisor, principal, agent, or in any other capacity) any business which engages
in the invention, design, development, marketing, and/or selling, and/or
manufacturing of products competitive with those which are then listed in the
Company's current catalogues or marketing materials, and/or such products which
the Company has at your termination from employment, under design, development,
modification, alteration, or purchase from another company, or for which
conception has occurred.
You further agree that you will not for a period of one (1) year from the date
of your termination of employment with the Company, whether voluntarily or
otherwise, engage in or participate in, in any capacity, the solicitation of any
product designer, supplier, customer and/or manufacturer of the Company's.
You also agree that for a period of one (1) year from your termination from
employment with the Company, whether voluntarily or otherwise, that you will not
hire or offer to hire any of the Company's directors, officers, employees,
and/or agents, or attempt to and/or entice them to discontinue their
relationship with the Company, and/or attempt to divert and/or divert any
product designer, customer, manufacturer, or supplier of the Company's.
Your obligations under this covenant not to compete shall apply to any
geographical area in which the Company has engaged in business before and during
your employment through production, operational, promotional, sales or marketing
activities, or has otherwise established its good will, business reputation, or
any product designer or customer or supplier relations.
The confidentiality and non-compete terms of this agreement, extend beyond the
termination of your employment and shall continue in full force and effect after
the termination of your employment or this agreement. Your agree to always keep
confidential and to not use any trade secret and/or proprietary information.
You agree that at the time of your termination of employment with the Company,
that you will promptly deliver to the Company all Company confidential, trade
secret, or proprietary information and all Company property, equipment, and
materials.
If you accept the Company's offer of employment, you understand that it is not
for a particular time period, and that either you or the Company may terminate
the employment relationship at any time for any reason or no reason. This
agreement is not to be interpreted as an agreement for continued employment,
since either party may terminate it at any time.
If the event that you are terminated without reason, as determined by the
Company, you shall be paid, exclusive of any bonuses or other renumeration, six
(6) months of your base salary in effect on the date of termination, on the
condition that you sign a full release of all claims against the Company.
However, you will not be entitled in any way to six (6) months of your base
salary, if you voluntarily terminate your employment with the Company or you are
terminated for reason, as determined by the Company, or you decline to execute
the full release.
It is the Company's understanding that you are not subject to any agreements or
restrictions arising out of any prior employment or any consulting
relationships, and that by accepting this offer of employment, you will not be
breaching or violating any other obligations.
This agreement may be severed, in that if any portion is determined to be
unenforceable, the other terms remain in full force and effect. Also, this
agreement will be interpreted under the laws of the State of Minnesota and the
United States of America, and is binding on the parties, their heirs,
successors, personal representatives, and assigns.
Please accept our offer for the position of Vice President of Marketing of Xxxx
International Holdings, Inc. and Xxxx Industries, Incorporated by executing this
agreement at the bottom. Thank you for your time and interest in employment with
Xxxx. Please feel free to call me at your convenience if you have any questions.
If look forward to your response in the very near future.
Sincerely,
By /s/ Xxxxxxx X. XxXxxxx
Xxxxxxx X. XxXxxxx
President and CEO
Accepted by: /s/ Xxxxxxx Xxxxxxx
Xxxx Xxxxxxx
