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EXHIBIT 10.4
XXXXXXX INDUSTRIES INC.
EMPLOYMENT AGREEMENT
This Agreement is made this 31st day of March, 1995, by and between
Xxxxxxx Industries Inc., a corporation organized and existing under the laws of
Delaware ["Company"] with principal offices in Fitchburg, Massachusetts, and
Xxxxx Xxxxxx, an individual with principal residency in Massachusetts
["Employee"].
Company hereby agrees to employ Employee, and Employee hereby accepts such
employment with Company upon the following terms and conditions:
1.0 POSITION AND TITLE. Employee's job title is Vice President of Sales and
Marketing - Metal Products. He is directly responsible to the President.
2.0 TERM. The term of this Agreement shall commence on the date hereof and
shall continue evergreen hereafter until terminated by either party as provided
hereinafter; provided, however, that the provisions of Paragraph 7 shall survive
the termination of this Agreement.
3.0 BASE COMPENSATION. As Base Compensation, Employee shall be paid an
annualized salary of $103,500 upon such dates as Company customarily pays its
executive employees. Employee's Base Compensation shall be reviewed in
accordance with standard corporate policy and procedure.
4.0 BONUS. Employee shall be entitled to participate in any Executive Bonus
Plan approved by the board of directors for Company executives in general. While
there are no guarantees that there will be a bonus plan in any particular year,
or that any bonus plan will be funded at any particular level, Employee is to
participate in any such plan without discrimination.
5.0 BENEFITS. Employee shall be entitled to participate in any Executive
Benefits Program approved by the board of directors for Company executives in
general. Additionally, Employee shall be entitled to a Company vehicle approved
by the President as to make, model and equipment. Employee's participation in
any benefit program shall be at the same level of employee/employer contribution
as has been set for all participants in such plans, in accordance with
applicable law.
6.0 TERMINATION.
(a) Employee may terminate Employee's employment under this Agreement
only upon at least ninety (90) days' prior written notice given to Company.
(b) Company may terminate this Agreement only upon at least one (1)
year's prior written notice given to Employee. Company may require that Employee
remain actively on the job for a period ending ninety (90) days from the date of
such notice, but Employee shall have no right to remain on the job upon receipt
of such notice.
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(c) Company and Employee agree that these termination provisions are
fair and reasonable, and that any termination hereof in accordance herewith
shall be without recourse against the terminating party, subject to the
provisions of section 7.0, et seq., hereof.
7.0 CONFIDENTIALITY; NON-COMPETITION. Employee acknowledges and agrees that
his position with the Company is unique and of singular importance to the
success of the Company. In connection with his performance of duties hereunder,
Employee will necessarily be entrusted with information which are confidential
and proprietary trade secrets of the Company. Employee acknowledges and agrees
that the release of any such information or materials to a third party, without
the express written consent of the Company, would cause immediate and
irreparable harm to the Company.
7.1 Employee shall not disclose to any third party any information or
materials of the Company to the extent that same are proprietary to, or the
"trade secrets" of the Company without limitation as to time.
7.2 Employee shall not compete, directly or indirectly, in North
America, as an employee, agent, consultant, owner, partner or otherwise in any
business entity, in the business engaged in by the Company and shall not offer
to deal with (in his individual capacity or on behalf of any entity in which he
is a shareholder, partner or otherwise has an ownership interest or by which he
is employed), directly or indirectly, nor deal with, directly or indirectly, any
entity or product which competes with, or materially replicates, any product or
service (or is a reasonable extension of such product or service) currently
offered by Company, for so long as Employee receives compensation and benefits
from Company and for a period of one year thereafter (provided, however, that
nothing contained herein shall prevent or restrict Employee from, owning or
acquiring, directly or indirectly, not more than five percent (5%) of the
securities of any publicly traded company for the sole purpose of passive
investment); and
7.3 Employee shall not solicit the employees or former employees of the
Company for the purpose of competing with the Company for so long as Employee is
restricted from competing with Company pursuant to the preceding paragraph.
8.0 MISCELLANEOUS.
8.1 This Agreement shall be governed by, and construed and interpreted
in accordance with, the laws of Massachusetts, whose courts shall be the
exclusive judicial forum for any and all disputes arising herefrom.
8.2 This Agreement constitutes the sole and entire, integrated agreement
by and between the parties with respect to the subject matter hereof, and the
parties agree that upon the execution and effectiveness of this Agreement, all
prior understandings and agreements (whether written or oral) between Company
and Employee regarding Employee's employment by Company shall automatically be
terminated. It may not be modified except in a writing signed by both parties.
Rights may not be assigned, nor duties delegated, hereunder except in a writing
signed by both parties.
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8.3 The provisions of this Agreement are intended to be severable, and
should any court of competent jurisdiction find unenforceable any provision(s)
hereof, the same shall be stricken and the remaining provisions shall continue
to be the enforceable agreement of the parties.
8.4 All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service, if served personally on the party to whom notice is to be
given, or on the third day after mailing, if mailed to the party to whom notice
is to be given, by registered or certified first class mail, postage prepaid,
return receipt requested, or on the date of telecopying, if sent by telecopy, or
on the day after mailing, if mailed by overnight courier service and properly
addressed.
IN WITNESS WHEREOF, the parties have hereunto subscribed on the date first
above-written,
Xxxxxxx Industries Inc.
By ___________________________ _______________________
Xxxx X. Xxxxxx Xxxxx Xxxxxx
President Employee
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