TREND-LINES, INC.,
EMPLOYMENT AGREEMENT
This Agreement is entered into on December 13, 1996, by and between
Trend-Lines, Inc., a Massahusetts corporation (the "Company"), and Xxxxxxx X.
Xxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company is desirous of assuring to itself for the term set
forth herein the benefits to be obtained from the special abilities and talents
of Employee relative to the operation of Company's business and the Employee is
desirous of working for the Company upon the terms and conditions provided for
in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto, it is hereby agreed by and between the Company and the
Employee as follows:
1. Employment and Duties. The Company shall employ the Employee, and the
Employee shall be employed by the Company, in the Position identified on Exhibit
A attached to this Agreement (which Exhibit is hereby incorporated herein) and
upon the terms and conditions stated in this Agreement until this Agreeiment is
terminated. In such position, Employee shall discharge such services as are
generally associated with such position, including, without limitation, the
Duties listed on Exhibit A, and such other services and duties as the Company
shall from time to time assign to Employee. Employee shall devote his or her
full time and best efforts to the performance of his or her duties on behalf of
the Company to the exclusion of all other business activities during ordinary
working hours. The Employee shall at all times be subject to the supervision of
the Chairman and Board of Directors of the Company.
2. Term. This Agreement shall be in effect until terminated by either party
in accordance with this Agreement.
3. Salary. In consideration of the full, prompt and faithful performance of
the services to be rendered by Employee under this Agreement, the Company during
the term of this Agreement will pay to Employee the Salary identified on Exhibit
A, or such greater amount as the Company may authorize from time to time,
payable weekly unless otherwise specified on Exhibit A.
4. Expenses. Subject to the authority of the Board of Directors of the
Company to fix and determine policies relating to such matters, the Company
agrees to reimburse Employee for all reasonable and necessary expenses incurred
by Employee in connection with the business of the Company.
5. Employee Benefits. In addition to his or her salary, Employee shall
receive such additional benefits, if any, by way of insurance, participation in
pension, profit sharing or thrift plans, hospitalization and similar employee
benefits, as may from time to time be afforded or made available to Employee by
the Company, as it may determine in its discretion.
6. Non-Competition.
(a) During the term of this Agreement and for a one (1) year period after
termination, whether by the Company or the Employee, of the Employee's
employment with the Company, the Employee shall not, whether as owner, partner,
shareholder, director, consultant, agent, employee, or otherwise, or through any
person, directly or indirectly, engage in any employment, consulting or other
activity with any business organization whose activities or products are or will
be in the woodworking tools and supplies field or are otherwise competitive with
the activities or products then existing or under development of the Company or
any "Affiliate" (which shall mean any business that is controlled by the
Company, has substantially the same ownership as or is in common control with
the Company, or operates out of some or all of the same facilities as the
Company, and shall include, without limitation, Xxxxxx Investments, Inc. d/b/a
Golf Day); provided, however, that the foregoing shall not apply to any
Affiliate with which the Employee has had no contact or exposure or only minimal
contact or exposure during the term of his or her employment. Employee
acknowledges that participation in the conduct of said business alone or with
any person other than the Company will materially impair the business and
prospects of the Company or an Affiliate. Without limiting the foregoing, during
the period defined above, Employee will not (i) attempt to hire any director,
officer, employee or agent of the company or an Affiliate, (ii) assist in such
hiring by any other person, (iii) encourage any person to terminate his or her
employment or business relationship with the Company.or an Affiliate, (iv)
encourage any customer or supplier of the Company or an Affiliate to terminate
its relationship with the Company or an Affiliate, or (v) obtain or assist in
obtaining for Employee's own benefit (other than indirectly as an employee of
the Company) any customer of the Company or an Affiliate.
(b) Nothing in subparagraph (a) hereof shall preclude Employee from making
passive investments of not more than 2% of a class of securities of any business
enterprise registered under the Securities Exchange Act of 1934.
7. Nondisclosure of Confidential Information.
(a) Acknowledgement of Relationship of Trust. Employee acknowledges that
his or her employment creates a relationship of confidence and trust with the
Company with respect to information of a confidential or proprietary nature with
regard to the Company or an Affiliate which is made known to or learned by the
Employee during the period of his or her employment, hereinafter called
"Confidential Information". Employee understands that the competitive position
of the Company and its Affiliates to depends on the ability of the Company and
its Affiliates to develop, utilize and keep control over such Confidential
Information, and Employee agrees to develop and protect such Confidential
Information as provided below or as otherwise reasonably requested by the
Company in writing.
(b) Confidential Information. Employee acknowledges that such Confidential
Information includes, but is not limited to, trade secrets, customer lists,
methods of doing business, business plans and operations, sales and marketing
strategies and techniques, product costs and suppliers, formulas, engineering
and manufacturing data, plans, designs, specifications and drawings, know-how,
techniques, research developments, improvements, and inventions, whether the
foregoing relate to the business of the Company, an Affiliate, or of any of its
or their clients, customers, consultants, or collaborators. As used in this
Agreement, the term "Confidential Information Material" means all physical
embodiments containing or pertaining to Confidential Information, including but
not limited to drawings, specification sheets, recording media for machine
information processing systems, documentation of all types, contracts, reports,
limits of actual or prospective clients or customers, manuals, quotations,
proposals, correspondence and samples.
(c) Nondisclosure of Confidential Information. At all times, both during
Employee's employment and after its termination, whether by the Company or the
Employee, Employee shallow keep in confidence and trust all such Confidential
Information and will not disclose, communicate or use any of such Confidential
Information, or anything relating to it, to or for the benefit of Employee or
any other person, firm or corporation without the prior express written consent
of the the Company, except to such extent as may be necessary in the ordinary
course of performing Employee's assigned duties as an employee of the Company.
Employee shall use such Confidential Information only in the course of his or
her work for the Company and for its benefit in connection with his or her
employment and will not appropriate it for the benefit of Employee or any other
person or entity.
(d) Return of Material Containing Confidential Information. In the event of
the termination of Employee's employment for any reason, Employee shall deliver
to the Company all Confidential Information Material, including all copies of
it, in Employee's possession or under his or her control, and upon the Company's
request, shall furnish a written statement certifying that all such Confidential
Information Material has been returned.
8. Disclosure and Assignment of Inventions.
(a) Disclosure of Inventions. Employee shall promptly disclose to the
Company, or to any person designated by it, all discoveries, inventions,
improvements, processes, formulas, data, know-how, and techniques, whether or
not patentable, made or conceived, first reduced to practice or learned by
Employee, either alone or jointly with others, during the period of einployment
which relate to or are useful in the business of the Company or an Affiliate, as
now existing or as it shall then be constituted, or which are made and worked
out on the time and expense of the Company or which result from tasks assigned
to the Employee by the Company.
(b) Assignment of Inventions. All said discoveries, inventions,
improvements, processes, formulas, data, know-how and techniques (hereinafter
collectively called "Inventions") shall be the sole property of the Company and
its assigns, and the Company and its assigns shall be the sole owner of all
patents and other rights in connection therewith. Employee further agrees as to
all such Inventions to assist the Company in every proper way, at the Company's
expense, to obtain and from time to time enforce patents on said Inventions in
any and all countries. To that end Employee shall execute any and all documents
which the Company may desire for use in applying for the obtaining of such
patents thereon, renewing or maintaining such patents, and enforcing same,
including but not limited to, application papers for letters patent,
assignments, affidavits and oaths of fact within Employee's knowledge, together
with such assignments of Employee's right, title and interest in, to and under
such patents and Inventions to the Company, or persons designated by it, as the
Company may request; and Employee shall do such other acts as may in the opinion
of the Company be desirable or necessary more effectively to convey or invest in
the Company the rights, titles, benefits and privileges intended hereby to be
conveyed. Employee's obligation to assist the Company in obtaining and enforcing
patents for such Intentions in any and all countries shall continue beyond the
termination of his or her employment, but the Company shall compensate Employee
at a reasonable rate after such termination for time actually spent by Employee
at the Company's request on such assistance.
(c) Prior Inventions. As a matter of record, Employee has attached hereto
as Exhibit B a list of all inventions or improvements which have been made or
conceived or first reduced to practice by Employee alone or jointly with others
prior to his or her employment, which Employee desires to remove from the
operation of this Agreement; and Employee covenants that such list is complete.
If no such list is attached to this Agreement, Employee represents that he or
she has no such inventions and improvements at the time of signing this
Agreement.
(d) Patent Applications After Termination. If any application for any
United States or foreign patent related to or useful in the business of the
Company, any Affiliate, or any client of the Company shall be filed by or for
Employee during the period of one (1) year after the termination of employment,
the subject matter covered thereby shall be presumed to have been conceived
during Employee's employment with the Company.
9. Termination. The Employee's employment hereunder shall terminate under
the following circumstances:
(a) Death. In the event the Employee dies, this Agreement shall terminate
effective as of the end of the month during which his or her death occurs.
(b) Termination by the Company for Cause. This Agreement may be terminated
effective immediately by the Board of Directors of the Company at any time for
cause by written notice to the Employee which shall set forth the specific
nature of the reasons for termination. Only the following acts or omissions by
the Employee shall constitute "cause" for such termination: (i) deliberate
dishonesty significantly detrimental to the best interest of the Company or any
subsidiary thereof; (ii) Conduct by the Employee constituting an act of moral
turpitude; (iii) willful disloyalty to the Company or refusal or failure of the
Employee to obey the directions of the Chairman or the Board of Directors; (iv)
incompetent performance or substantial or continuing inattention to or neglect
of duties and responsibilities assigned to the Employee; and (v) material breach
by the Employee of any of the covenants of this Agreement.
(c) Termination by the Company for Other Than Cause. This Agreement may be
terminated by the Company at any time for other than "cause" as defined in
subparagraph (b) above, provided that the Company shall continue to make salary
payments to Employee, at the rate then in effect under this Agreement on the
effective termination date, for the Severance Pay Period identified on Exhibit
A.
(d) Termination by the Employee. This Agreement inay be terminated by the
Employee at any time by notice of the Employee to the Company, provided that the
notice gives the Company advance notice of at least the number of weeks of the
Employee Advance Notice Period identified on Exhibit A prior to the effective
date of termination.
10. Remedies. In the event of any breach or threatened breach by the
Employee of the provisions of this Agreement, the Company shall be entitled to
an injunction restraining such breach. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available to the
Company for such breach or threatened breach, including the recovery of damages
from the Employee. Employee acknowledges that his or her employment by Company
imposes on him or her a duty to act solely for the benefit of Company in all
matters connected with or related to such employment. Employee agrees that in
the event that he or she violates his or her duty of loyalty to Company, in
addition to any and all other remedies which the Company may have available to
it, Company will be entitled, at its election, to recover from Employee (i) the
value of anything belonging to the Company which Employee uses in breach of such
duty, and/or (ii) any benefit or the value of such benefit, which Employee
receives as a result of violating such duty of loyalty, or its proceeds, and the
Company shall also be entitled to recover from Employee the amount of damages
thereby caused. In the event of termination of Employee's employment for breach
of any of the covenants under this Employment Agreement, Employee agrees that he
or she shall thereby forfeit all rights granted to him or her under any stock
option, profit participation, bonus or deferred compensation arrangement of the
Company then existing in which Employee participates, to the extent permitted by
law.
11. Conflicting Agreements. The Employee represents and warrants that the
execution ot this Agreement and the performance of Employee's duties and
obligations hereunder does not and will not breach or be in conflict with any
other agreement to which Employee is a party or is bound and that he or she is
not now subject to any covenants against competition, nondisclosure or
confidential information agreements, or similar covenants or agreements which
would affect the performance of Employee's duties hereunder.
12. Severability. If any provision of this Agreement shall be declared to
any extent invalid or unenforceable, the remainder of this Agreement or the
application of such provision in circumstances other than those as to which it
is held invalid or unenforceable shall not be affected thereby, and such
provision shall be enforced to the fullest extent permitted by law, and if such
provision is determined to be totally invalid, it shall be deemed to have been
severed from this Agreement, which shall otherwise remain in full force and
effect. Without limiting the generality of the foregoing, if any provision
contained in this Agreement shall be held to be excessively broad as to scope,
activity or subject so as to be unenforceable at law, such provision shall be
construed by limiting and reducing it so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
13. Waivers. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there by any estoppel against the enforcement of any
provisions of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition for the future or as to any
act other than that specifically waived.
14. Amendment. No term or provision or the duration of this Agreement shall
be altered, varied or contradicted except by a writing to that effect executed
by an authorized officer of the Company and by the Employee,
15. Entire Aqreement. This Agreement, including the Exhibits incorporation
herein, constitutes the entire understanding of the Employee and the Company
with respect to the Employee's employment. As of the commencement of its term
this Agreement supersedes any prior negotiations, agreements, or arrangements
relative to Employee's employment with the Company. No modifications or waiver
of any provisions of this Agreement shall be made unless made in writing and
signed by the Employee and such other person as the Board of Directors may
designate for such purpose.
16. Miscellaneous. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts. This
Agreement shall be binding upon Employee and Employee's heirs, executors,
assigns and administrators and shall inure to the benefit of the Company, its
successors and assigns.
17. Headings. The headings of sections or paragraphs herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto or their duly authorized representatives
have signed, sealed and delivered this Agreement effective as of the day and
year first above written.
EMPLOYEE: TREND-LINES, INC.
By:
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Signature
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Print Name Print Name and Title
EXHIBIT A
EMPLOYMENT, SALARY, STOCK OPTIONS, BONUS
Employment: Begin September 20, 1996.
Salary: $250,000 annually paid bi-weekly.
Stock Options: 100,000 shares. Vesting 25% each year beginning September 23,
1998.
Bonus: 30% of salary based on a level of fiscal 1997 (YE 2/28/98) earnings with
a formula to be determined.
BENEFITS
Vacation: 3 weeks.
Health & Life Insurance: Our Executive Plan.
401K: Our standard plan - we match 3% with a designated maximum.
MOVING EXPENSES PAID BY TREND-LINES
Furniture and Household Goods: 100% of reasonable expense.
Closing Costs on Present Home: 100% of costs excluding brokers fee with a cap to
be determined.
Real Estate Fee on Present Home: Actual cost with a cap of $25,000.
Expenses Relating to Purchase of a Home in the Boston Area: 100% of reasonable
expenses, excluding closing points and any buyer brokerage fees.
(All of the above will be grossed up for taxes where applicable).
Temparary Living Quarters: We will provide a two bedroom apartment for up to 6
months.
Compensation: 6 months salary if dismissed by company except under conditions as
outlined in 9 (E).
Stock Options: After one year and prior to two years, 25% of options will vest
if dismissed by Company according to contract terms other than under, conditions
outlined in 9(b).
FUTURE EMPLOYMENT
Continued employment, salary and bonus adjustments and future grants of stock
options will be dependent on your performance and on our business performance
and will be at the discretion of the Company and subject to your acceptance.
EXHIBIT B
List of Prior Invention, or Improvements:
None.
