EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into effective the 1st day of October, 1996
and between Vicom, Incorporated ("Employer") and Xxxxxx Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ in the capacity and on the terms and
conditions hereinafter set forth, and Employee has agreed to accept such
employment.
NOW THEREFORE, in consideration of the premises and the mutual promises
hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT RELATIONSHIP. Employer hereby employs Employee as an
officer of Employer. Employee accepts such employment and agrees to perform
such duties as may be reasonably requested by Employer, as directed by
Employer. Employee's job description is set forth in Exhibit A attached
hereto and incorporated herein.
2. TERMS OF EMPLOYMENT. Subject to the provisions for termination
hereinafter set forth the term of this Agreement and the performance of
Employee's services shall be (5) years commencing October 1, 1996, unless
earlier terminated as provided in Paragraph 8 hereof.
3. COMPENSATION AND FRINGE BENEFITS. For all services rendered by
Employee to Employer in any capacity, Employee shall be compensated in
accordance with the terms set forth in this Section and in Exhibit B which is
attached hereto and made a part hereof. Employee shall be entitled to
participate in and to be covered by a profit-sharing, pension, life
insurance, accident insurance, health insurance, hospitalization and any
other employee benefit plan effective with respect to employees of Employer
only to the extent he/she shall be eligible and qualify under the terms of
such plans.
Company shall furnish Employee a late model automobile acceptable to
Employee, and Company shall pay all of Employee's business related
automotive expenses, specifically, but not limited to gasoline, insurance,
maintenance, and repairs.
A. SPECIAL COMPENSATION. Upon a change in control of Vicom, Inc. and
employee's voluntary termination or employer's involuntary termination of
employee for reasons other than those defined in Section 8 hereof, employer
shall pay employees special compensation.
"A change in control" shall mean the acquisition by any corporation or group
of associated persons acting in concert, excluding affiliates, if any, of
Vicom, Inc. and of the date hereof, of an aggregate of more than 20 percent
of the outstanding shares of voting stock of Vicom, Inc. coupled with or
followed by the election as directors of Vicom, of persons who were not
directors at the time of such acquisition, if such persons shall become a
majority of the Board of Directors of Vicom, Inc. "Voluntary termination by
employee" means that if employee determines in good faith that his/her status
or responsibilities has or have diminished subsequent to a change in control,
and if employee for that reason resigns from his/her employment within two
years after a change in control, then employee shall be entitled to receive
all the compensation and benefits listed in this Section and in Exhibit B.
"Special compensation" is defined as Employer's payment to Employee
immediately upon employee's written demand, of a lump sum amount equal to two
and one-half times the highest annual base salary paid or payable by Employer
to Employee for the three calendar years ending with the year of such
termination.
4. INDEMNIFICATION. As a further consideration of accepting employment with
Employer, Employer agrees to indemnify Employee in the manner and to the full
extent permitted or authorized by the By-Laws of Employer.
5. AUTHORIZED EXPENSES. Employee shall incur expenses in connection with the
business of the Employer only when authorized by the CEO or other executive
officer of Employer. When employee is authorized to incur such expenses, the
Employer will reimburse Employee for all such reasonable expenses upon
presentation by Employee, of an itemized account of such expenditures. All
expenses to be incurred which exceed $1,000.00 require verbal or written
pre-approval by both the CEO and the CFO. Employee agrees to re-pay or
reimburse the Employer, on demand, for any expenses which are disallowed as a
deduction for Federal or State income tax purposes. In addition, Employer
shall reimburse the Employee for Employee's travel expenses, where such
travel is authorized or required by Employer.
6. CONFIDENTIAL NATURE OF EMPLOYER'S BUSINESS-NON-DISCLOSURE. Employee
acknowledges that he/she may receive or contribute to the production of
Confidential Information. For purposes of this Agreement, Employee agrees
that "Confidential Information" shall mean information or material
proprietary to Employer or designated as Confidential Information by Employer
and not generally known by non-Employer personnel, of or to which the
undersigned develops or of which the undersigned may obtain knowledge or
access throughout as a result of the undersigned's relationship with Employer
(including information conceived, originated, discovered or developed in
whole or in part by the undersigned). The Confidential Information includes,
but is not limited to, the following types of information and other forms of
information of a similar nature (whether or not reduced to writing):
discoveries, ideas, concepts, software in various stages of development,
diagrams, flow charts, research, development, processes, procedures,
"know-how", marketing techniques and materials, marketing and development
plans, customer names and other information related to customers, price
lists, pricing policies and financial information. Confidential Information
also includes any information described above which Employer obtains from
another party and which Employer treats as proprietary or designates as
Confidential Information, whether or not owned by or developed by Employer.
INFORMATION PUBLICLY KNOWN THAT IS GENERALLY EMPLOYED BY THE TRADE AT OR
AFTER THE TIME THE UNDERSIGNED FIRST LEARNS OF SUCH INFORMATION, OR GENERIC
INFORMATION OR KNOWLEDGE WHICH THE UNDERSIGNED WOULD HAVE LEARNED IN THE
COURSE OF SIMILAR EMPLOYMENT OR WORK ELSEWHERE IN THE TRADE, SHALL NOT BE
DEEMED PART OF THE CONFIDENTIAL INFORMATION. Employee further agrees:
A. To furnish Employer on demand, at any time during or after employment, a
complete list of the names and addresses of all persons which Employee knows
has dealt with, are dealing with or propose to deal with Employer, including
present, former and potential customers and other contacts gained while in
the employ of Employer, whether or not in the possession or within the
knowledge of Employer. Such information may be disclosed by periodic reports
to Employer during employment.
B. All notes, data, reference materials, sketches, drawings, memoranda,
documentation and records in any way incorporating or reflecting any
Confidential Information shall belong exclusively to Employer and Employee
agrees to turn over all copies of such materials in Employee's control to
Employer upon request or upon termination of Employee's employment with
Employer.
C. That during his employment by Employer and thereafter Employee will hold
in confidence and not directly or indirectly reveal, report, publish,
disclose or transfer any of the Confidential Information for any purpose,
except in the course of the undersigned's work for Employer.
D. That inventions or ideas in whole or in part conceived of or made by
Employee during or after the term of his/her employment or relationship with
Employer which are made through the use of Employer's equipment, facilities,
trade secrets or time, or which result from any work performed by Employee
for Employer, shall belong exclusively to Employer and shall be deemed a part
of the Confidential Information for purposes of this Agreement. Employee
hereby assigns and agrees to assign to Employer all rights in and to such
Confidential Information whether for purposes of obtaining patent or
copyright protection or otherwise.
Employee shall acknowledge and deliver to Employer without charge to
Employer, (but at its expense) such written instruments and to do such other
acts, including giving testimony in support of Employee's authorship or
inventorship, as the case may be, necessary in the opinion of Employer to
obtain patents or copyrights or to otherwise protect or vest entire right and
title in and to the Confidential in Employer.
E. That he/she has been given a copy of and has reviewed Chapter 325C of
Minnesota Statutes, known as the MINNESOTA UNIFORM TRADE SECRETS ACT (the
"Act") and acknowledges that violation of the Act or of his/her agreements,
covenants and representations contained in this Agreement may give rise to a
cause of action in favor of Vicom against him/her for general and special
damages.
7. VACATIONS. Employee shall be entitled each year to a vacation as
permitted and in accordance
with the vacation policies of Employer.
8. TERMINATION OF EMPLOYMENT. This Agreement will terminate in accordance
with the following provisions:
A. Upon ninety (90) days written notice to Employee, Employer may terminate
this Agreement and any benefits provided for Employee hereunder immediately
upon service of written notice on Employee as follows:
(i) if Employee takes employment, in competition with Employer or in
violation of this Agreement, or, (ii) is guilty of an act or acts of
misconduct, dishonesty, or disloyalty against Employer.
B. Employee's voluntary termination as specifically defined in Section 3A
herein.
9. DEATH OR DISABILITY DURING EMPLOYMENT. If Employee dies or becomes
disabled during the term or his/her employment, Employer shall pay to the
estate of Employee compensation which would otherwise be payable to Employee
up to the end of the month in which his/her death occurs; and Employer shall
pay to the Employee his/her full salary for a period of (90) days from the
date the Board of Directors of the Company selects as the date on which the
disability commenced.
10. COVENANT NOT TO COMPETE. For a period of one (1) year from the date of
termination of his/her employment with Employer, for any reason whatsoever,
Employee will not, directly or indirectly on his/her own behalf or as a
partner, officer, employee, consultant, agent, shareholder, director or
trustee of any person, fir, corporation or other entity, engage or
participate in any business which competes with any business which competes
with any business conducted by Employer (a "Conflicting Organization") on the
date of such termination of employment in the State of or any other state
where the Company may have operating entities, or call upon otherwise solicit
any account of Employer, wherever they may be located, or permit his/her name
to be used in connection with any such business or solicitation.
11. INDEPENDENT COVENANTS. The covenants on the part of Employee contained
in Paragraphs 6 and 10 shall be construed as Agreement independent of any
other provisions in this Agreement; and it is agreed that relief for any
claim or case of action of Employee against Employer, whether predicated on
this Agreement or otherwise, shall be measured in damages and shall not
constitute a defenses to enforcement by Employee of those covenants.
12. INJUNCTIVE RELIEF; ATTORNEYS FEES. In recognition of the irreparable
harm that violation of the covenants of Paragraph 6 and 10 would cause
Employer, Employee agrees that in addition to any relief afforded by law, an
injunction against such violation or violations may be issued against him/her
and every other person concerned hereby, it being understood by the parties
that both damages and an injunction shall be proper modes of relief and are
not to be considered alternative remedies. In the event of any such violation
the Employee agrees to pay the reasonable attorney's fees incurred by
Employer in pursuing any of its rights with respect to such
violation, in addition to the actual damages sustained by Employer as a result
thereof.
13. NOTICES. All notices given hereunder shall be in writing and shall be
personally served or sent by registered or certified mail, return receipt
requested. Notices to Employer shall be given to Employer at its corporate
headquarters which as of the date of this Agreement is 0000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx, XX 00000. Notices to Employer or Employee shall be sent to
such other address as Employer or Employee shall specify in writing to the
other.
14. MISCELLANEOUS.
A. The term "subsidiary" shall mean any corporation partnership or other
business entity in which Employer has a significant financial interest, or
which Employer directly or indirectly, through one or more intermediaries,
officers or employee, controls, or is controlled by, or is under common
control with.
B. This Agreement is the entire Agreement between the parties concerning the
subject matter hereof and supersedes and replaces any existing Agreement
between the parties hereto relating to the employee's employment. Employer
and Employee hereby acknowledge that there are not Agreements or
understandings of any nature, oral or written, regarding Employee's
employment, apart from this Agreement.
C. No failure on the part of Employer to exercise, and no delay in exercising
any right hereunder will operate as a waiver thereof, nor will any single or
partial exercise of any right hereunder by Employer preclude any other or
further exercise thereof of the exercise of any other right.
D. It is further agreed and understood by the parties hereto that if any
part, term or provision of this contract should be held unenforceable in the
jurisdiction in which either party seeks enforcement of the contract, it
shall be construed as if not containing the invalid provision or provisions,
and the remaining portions or provisions shall govern the rights and
obligations of the parties.
E. This contract shall be construed and enforced in accordance with the laws
of the State of Minnesota.
F. This Agreement is personal in nature and cannot be assigned by Employee.
The terms, conditions and covenants herein shall be binding upon the heirs
and personal representatives of employee, and the successors, assigns of
Employer and any subsidiary of Employer.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
VICOM, INCORPORATED
By /s/ Xxxxxx Xxxx
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C.F.O.
EMPLOYEE
/s/ Xxxxxx Xxxxxxx
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EXHIBIT A
JOB DESCRIPTION
POSITION: Chief Executive Officer
REPORTS TO: Board of Directors
NARRATIVE DESCRIPTION:
Ultimately responsible to supervise all department heads and manager
day-to-day operations of the company.
EXHIBIT B
Compensation to be reviewed annually by the company's Board of Directors but
in no event shall be less than employee's annual compensation for 1995,
without his consent.
/s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxxxxx
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Employer Employee
