Exhibit 10.9
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is entered into as of June 12, 1998, by Xxxxxxx
Electric Co., a Minnesota corporation with its principal place of business at
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, FAX (612) 371-
8036 ("Xxxxxxx"), and Xxxxx Xxxxxxxxxx, an individual officing at 0000 Xxxxxxxx
Xxxxxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, FAX (000) 000-0000 ("Employee").
RECITALS
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Xxxxxxx desires to employ Employee as a Vice-President of its Xxxxxxx-Xxxxx
Division, and Employee desires to be employed by Xxxxxxx in such capacity, on
the terms and conditions contained herein. In consideration of the mutual
covenants and promises contained herein, the parties agree as follows:
1. Term of Employment. The initial term (the "Initial Term") of this
Agreement shall commence on the date hereof (the "Commencement Date") and,
unless sooner terminated as provided herein, shall end on August 31, 2001. At
the expiration of the Initial Term, this Agreement shall be automatically
renewed for successive periods of one year each (each, a "Renewal Term") unless
either party gives written notice of nonrenewal to the other not later than 90
days prior to the expiration of the Initial Term or any such Renewal Term.
Unless this Agreement is sooner terminated in accordance with Section 4, the
Initial Term and each Renewal Term during which this Agreement shall be in
effect shall be collectively referred to as the "Employment Period."
2. Title; Capacity. Xxxxxxx-Xxxxx is a division of Xxxxxxx, which is a
wholly-owned subsidiary of Nationwide Electric, Inc. ("NEI"), pursuant to a
Stock Purchase Agreement among NEI, Xxxxxxx-Xxxxx Electric Company, Inc. and The
Xxxxxxx Company and its shareholders (the "Purchase Agreement"). For purposes
of this Agreement, Xxxxxxx shall be referred to as the "Company" and Xxxxxxx-
Xxxxx shall be referred to as the "Division." Employee shall serve as a Vice-
President of the Division and in such other management position(s) as the
President of the Division, reasonably and in good faith, may determine from time
to time. Employee shall be subject to the supervision of, and shall have such
specific authority as is delegated to him by the President of the Division.
Employee accepts such employment and agrees to undertake the duties
and responsibilities inherent in such position and such other duties and
responsibilities as the President of the Division shall from time to time
reasonably assign to him. Employee shall perform his duties primarily at the
principal place of business of the Division currently located at 0000 Xxxxxxxx
Xxxxxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, subject to reasonable travel
requirements. Employee agrees to devote his entire business time, attention and
energies, during reasonable business hours, to the business and interests of the
Division during the Employment Period, except for vacation and absence due to
illness or injury and reasonable time devoted to the fulfillment of civic and
non-competitive personal responsibilities and activities. Employee agrees to
abide by the rules, regulations, instructions, personnel practices and policies
(collectively, the "Policies") applicable to the Division and reasonably
promulgated by the President of the Division, as amended or modified from time
to time and communicated in advance to Employee.
3. Compensation and Benefits.
a. Salary. The Company shall pay Employee, in semi-monthly installments,
an annual base salary of $100,000 for the one-year period commencing on the
Commencement Date. Employee's salary shall be subject to such increases as
determined by the President of the Division in his good faith discretion.
b. Fringe Benefits. At all times during the Employment Period, Employee
shall be entitled to participate in all benefit programs that NEI establishes
and makes available to the management employees of its other operating
subsidiaries and divisions, to the extent Employee's position, tenure, salary,
age, health and other qualifications make him eligible to participate. Such
benefits shall include, without limitation, those set forth on SCHEDULE A
attached hereto.
c. Reimbursement of Expenses. The Company shall reimburse Employee for
all reasonable travel, entertainment and other expenses incurred or paid by
Employee in connection with the performance of his duties under this Agreement,
upon presentation by Employee of such documentation as the Company may
reasonably request. The amount generally available for travel, entertainment
and other expenses may be fixed in advance by the President of the Division.
Upon prior approval by the President, the Company shall reimburse Employee, or
directly pay for, dues and membership fees for organizations relevant to
Employee's duties.
d. Incentive Compensation. Employee shall be entitled to an incentive
bonus in the amount of 5% of Division EBIT, calculated in the manner described
in SCHEDULE 2.2 to the Purchase Agreement (the "Incentive Base") each fiscal
year during the Employment Period. Such bonus shall be payable quarterly and
reconciled annually. The Incentive Base shall be determined by NEI, which
determination shall be final and binding for all purposes.
4. Employment Termination. Employee's employment by the Company shall
terminate upon the occurrence of any of the following:
a. Expiration of the Employment Period, as defined in Section 1;
b. At the election of the Company, for "cause," immediately upon
receipt of written notice by the Company to Employee specifying in reasonable
detail such cause and, in the
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case of Section 4.b.ii, the nature of the injury incurred. "Cause" for
termination shall mean the following:
i. Dishonesty of Employee with respect to the Company or NEI;
ii. Willful misfeasance or nonfeasance of duty intended to
injure or having the tendency or effect of injuring, in any material respect,
the reputation, business or business relationships of the Company, the Division
or NEI or their respective officers, directors or employees;
iii. Upon a charge by a governmental entity against Employee of
any crime involving moral turpitude (other than minor traffic offenses) or which
could, in the reasonable, good faith judgment of the President of the Division,
reflect unfavorably upon the Company or NEI; upon the filing of any civil action
against Employee involving a charge of embezzlement, theft, fraud or other
similar act; or any other serious job-related conduct which the President of the
Division, reasonably and in good faith, determines is materially and
substantially detrimental to the Company or NEI or relations with customers,
suppliers, employees, shareholders or the investment community;
iv. Employee's willful or prolonged absence from work (other
than by reason of disability due to physical or mental illness) or willful
failure, neglect or refusal by Employee to perform his material duties and
responsibilities, unless corrected within 10 days after receipt of written
notice from the Company;
v. Employee's failure to meet any performance standards agreed
upon by Employee and the President of the Division, unless due to factors beyond
Employee's control; or
vi. Breach by Employee of any of the other material covenants
contained in this Agreement, unless corrected within 10 days after receipt of
written notice from the Company.
c. Immediately upon the death or disability of Employee. As used in
this Agreement, the term "disability" shall mean the inability of Employee, due
to a physical or mental disability, for a period of 90 days, whether or not
consecutive, during any 360 day period to perform, in all material respects, the
services contemplated under this Agreement. A determination of disability shall
be made by a qualified physician reasonably satisfactory to the Company and
Employee. If the Company and Employee (or his personal representative) are
unable to reasonably agree on the identity of a qualified physician, each shall
designate a physician and the two physicians so designated shall select a third
physician whose determination of disability shall be binding on the parties.
d. At the election of the Company or Employee, with or without cause,
upon 90 days written notice by one party to the other.
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5. Effect of Termination.
a. Termination for Cause. If Employee's employment is terminated for
cause pursuant to Section 4.b., the Company shall pay to Employee the salary and
benefits (but not incentive compensation) otherwise payable to him under Section
3 through the last day of his actual employment by the Company.
b. Elective Termination.
i. If Employee's employment is terminated by the Company
pursuant to Section 4.d., the Company shall pay to Employee the salary and
benefits (but not incentive compensation) otherwise payable to him under Section
3 for a period of six months from the last day of his actual employment by the
Company.
ii. If Employee's employment is terminated by Employee pursuant
to Section 4.d., the Company shall pay to Employee the salary and benefits
payable to him under Section 3 through the last day of his employment by the
Company.
iii. If this Agreement is terminated by either party pursuant to
Section 4.d., within 30 days after the last day of Employee's actual employment
by the Company, Employee shall be paid incentive compensation, calculated in
accordance with Section 3.d. and adjusted to reflect the portion of the fiscal
year in which Employee was employed by the Company.
c. Termination for Death or Disability. If Employee's employment is
terminated by death or because of disability pursuant to Section 4.c., the
Company shall pay to Employee or his estate, as the case may be, the salary
pursuant to Section 3.a. which would otherwise be payable to Employee through
the end of the month in which the termination of his employment because of death
or disability occurs; plus any incentive compensation to which he would
otherwise be entitled, prorated for the portion of the fiscal year in which
Employee was employed by the Company.
6. Non-Compete.
a. During the Employment Period and for a period of two years after
the expiration or termination for any reason of this Agreement, Employee shall
not directly or indirectly, anywhere in a territory comprised of the continental
United States:
i. as an individual proprietor, partner, stockholder, member,
officer, employee, director, joint venturer, consultant, investor, lender, or in
any other capacity whatsoever (other than as the holder of not more than 5% of
the total outstanding stock of a publicly held company), engage in or assist any
other entity in engaging in the business of developing, providing, marketing or
selling products or services (including but not limited to commercial and
electrical
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contracting services) of the kind developed, provided, marketed or sold by the
Company or NEI or its operating subsidiaries or divisions while Employee was
employed by the Company; or
ii. recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company or NEI or its operating subsidiaries or
divisions to terminate their employment; or
iii. solicit, divert or take away, or attempt to divert or to
take away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts, of the Company or any
other operating subsidiaries or divisions of NEI which were contacted, solicited
or serviced by Employee while employed by the Company.
b. If any restriction set forth in this Section 6 is found by a court
of competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
7. Proprietary Information and Developments
a. Proprietary Information.
i. Employee agrees that all information and know-how, whether in
oral, written, electronic or other medium, of a private, secret or confidential
nature concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information
shall include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, strategies, research
data, clinical data, analyses, financial data, personnel data, computer
programs, customer and supplier lists, bids, pricing information, cost
information, contractual relations, business contacts and trade secrets.
Employee shall not disclose any Proprietary Information to others outside the
Company (except as required in the performance of his duties on behalf of the
Company) or use the same for any purpose other than the performance of his
duties hereunder without written approval by an officer of the Company, either
during or after his employment, unless and until such Proprietary Information
has become public knowledge without the fault of Employee.
ii. Employee agrees that all files, letters, memoranda, notes,
abstracts, reports, records, data, sketches, drawings, laboratory notebooks,
program listings and other written, photographic, electronic or other tangible
material containing or prepared on the basis of Proprietary Information, whether
created by Employee or others, which shall come into his custody or possession,
shall be and are the exclusive property of the Company to be used by Employee
only in the performance of his duties for the Company.
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iii. Employee agrees that his obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs i. and
ii. above also extends to similar types of information, know-how, records and
disclosures of customers of the Company or suppliers to the Company or other
third parties identified as being confidential or proprietary and which may have
been disclosed or entrusted to the Company or to Employee in the course of the
Company's business.
b. Developments.
i. Employee shall make full and prompt disclosure to the President of
the Division of all inventions, improvements, discoveries, methods,
developments, software and works of authorship, whether patentable or not, which
are created, made, conceived or reduced to practice by Employee or under his
direction or jointly with others during his employment by the Company and
relating to the business of the Company (all of which are collectively referred
to in this Agreement as "Developments").
ii. Employee agrees to assign and does hereby assign to the Company
(or any person or entity designated by the Company) all his right, title and
interest in and to all Developments and all related patents, patent
applications, rights to patent, copyrights and copyright applications. However,
this Section 7.b.ii. shall not apply to Developments which do not relate to the
present or planned business or research or developments of the Company and which
are made and conceived by Employee at times other than normal working hours, not
on the Company's premises and without use of any tools, devices, equipment or
Proprietary Information of the Company.
iii. Employee agrees to cooperate fully with the Company, at the
Company's expense and as the Company may reasonably request, both during and
after his employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights and patents (both in the United States
and foreign countries) relating to Developments. Employee shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of proprietary rights, and
powers of attorney, which the Company may deem necessary or desirable in order
to protect its rights and interests in any Developments.
c. Other Agreements. Employee hereby represents that he is not bound
by the terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Employee further represents that his performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by him in confidence or in trust prior to his employment with the
Company.
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d. Company's Right to Notify Subsequent Employers. The Company may
do all permissible things, and take all permissible action, necessary or
advisable, in the Company's discretion, to protect its rights under this Section
7, including without limitation notifying any subsequent employer of Employee of
the existence of (and furnishing to any such employer) the provisions of this
Agreement.
8. Liquidated Damages. Insofar as any damages sustained by the Company in
the case of a breach by Employee of the provisions of this Agreement are
difficult to calculate, the parties hereto agree that if Employee breaches or
violates any provision of this Agreement, the Company shall be entitled, in
addition to any other right and remedy available to it, to offset against, and
retain as liquidated damages, any sums otherwise owed but not paid by the
Company to Employee.
9. Notices. All notices required or permitted under this Agreement shall
be in writing and shall be deemed effective upon personal delivery, facsimile
transmission or upon deposit in the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the other party at the address or
facsimile number shown above, or at such other address or facsimile number as
either party shall designate to the other in accordance with this Section 9.
10. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof and supersedes all
prior agreements and understandings, whether written or oral, relating to the
subject matter of this Agreement.
12. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Georgia, without giving
effect to that State's conflict of laws provisions.
14. Choice of Venue. All actions or proceedings with respect to this
Agreement shall be instituted only in any state or federal court sitting in
Xxxxxx County, Georgia, and by execution and delivery of this Agreement, the
parties irrevocably and unconditionally subject themselves to the jurisdiction
(both subject matter and personal) of each such court and irrevocably and
unconditionally waive: (a) any objection that the parties might now or hereafter
have to the venue of any of such court; and (b) any claim that any action or
proceeding brought in any such court has been brought in an inconvenient forum.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with
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which or into which the Company or Division may be merged or consolidated, or
which may succeed to its assets or business, provided, however, that such
successor or assignee shall expressly assume the Company's obligations
hereunder; and provided further that the obligations of Employee are personal
and may not be assigned by him.
16. Waiver. No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
17. Captions and Headings. The captions of the sections of this Agreement
are for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
18. Severability. In case any provision of this Agreement shall be
invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
19. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute one and the same agreement, and it shall not be necessary
for all parties to execute the same counterpart hereof.
20. Facsimile Signatures. The parties hereby agree that, for purposes of
the execution of this Agreement, facsimile signatures shall constitute original
signatures.
21. Incorporation by Reference. The preamble and recitals to this
Agreement are hereby incorporated by reference and made a part hereof.
22. Indemnification. The Company agrees that it will indemnify and hold
Employee harmless to the fullest extent permitted by applicable law or the
Articles of Incorporation or Bylaws of the Company, from and against all
liabilities, costs, claims, expenses, actions and causes of action to which
Employee may be subject or exposed and arising from his service as an employee,
including, without limitation, all costs and expenses incurred in the defense of
any litigation, arbitration or other proceedings of any nature, including the
reasonable attorneys' fees incurred by Employee in connection therewith, except
to the extent a court of competent jurisdiction determines that any such claim
arose as a result of Employee's breach of this Agreement or the gross negligence
or willful misconduct of Employee in the performance of his duties as an
employee of the Company.
23. Survival. The relevant provisions of Sections 5, 6, 7.a., 7.b.iii, 8,
22 and 24 shall survive expiration or termination of this Agreement for the
periods recited therein or, if no period is recited, for such period as required
to implement the terms thereof.
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24. Enforcement. The covenants contained in Sections 6 and 7 are
necessary for the protection of the business and goodwill of the Company and are
considered by Employee to be reasonable for such purpose. Employee agrees that
any breach of his covenants in Section 6 or 7 will cause the Company substantial
and irrevocable injury which would not be fully compensable in damages.
Accordingly, in the event of any such breach, in addition to such other remedies
which may be available, the Company shall have the right to seek specific
performance and/or injunctive relief, without the necessity of posting bond (to
the extent permitted under applicable law) or proving lack of an adequate remedy
at law. The prevailing party in a legal proceeding to remedy a breach under
this Agreement shall be entitled to receive its reasonable attorneys' fees,
expert witness fees and out-of-pocket costs incurred in connection with such
proceeding, in addition to any other relief to which it may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
XXXXXXX ELECTRIC CO.
By __________________________________________
Name:
Title:
The "Company"
EMPLOYEE:
_____________________________________________
Xxxxx Xxxxxxxxxx
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SCHEDULE A
Benefits
