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XXXXXX & XXXXXXXX CORPORATION
Form 10-Q for Quarterly Period Ended March 29, 1998
Exhibit No. 10
FORM OF OFFICER EMPLOYMENT AGREEMENT
(Agreement provided to all Executive Officers,
except Xxxxx X. Xxxx, whose Agreement
was previously filed.)
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the _______day
of ___________, 19__, by and between _______________________ (the "Employee")
and XXXXXX & XXXXXXXX CORPORATION, a Wisconsin corporation with its corporate
office in Wauwatosa, Wisconsin (the "Company").
WHEREAS, the Company desires to employ Employee in the business of
manufacturing, selling and servicing gasoline powered engines or in such other
businesses as the Company may from time to time engage (the "Business"), and
Employee desires to be employed by the Company for such purpose; and
WHEREAS, Employee shall have access to confidential financial information,
trade secrets and other confidential and proprietary information of the
Company;
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT
1.1 Duties. The Company shall employ Employee upon the terms and
conditions set forth in this Agreement. Employee shall have such duties at
such work locations as may be assigned to Employee from time to time by the
Company.
1.2 Best Efforts. Employee agrees to devote his best efforts and his full
time and attention to the performance of his duties under this Agreement, and
to perform such duties in an efficient, trustworthy and businesslike manner.
1.3 Duty to Act in the Best Interest of the Company. Employee shall not
act in any manner, directly or indirectly, which may damage the business of the
Company or which would adversely affect the goodwill, reputation or business
relations of the Company with its customers, the public generally or with any
of its other employees.
2. TERM OF EMPLOYMENT
2.1 Term. The term of Employee's employment with the Company under this
Agreement shall commence as of January 1, 1998 (the "Effective Date"), and
shall expire two years from the Effective Date ("Expiration Date"). In the
event that neither the Company nor the Employee shall give written notice to
the other party at least 30 days prior to any anniversary of the Effective Date
that this Agreement shall not be further extended, the Expiration Date shall be
automatically extended by one additional year. If such notice is given, this
Agreement shall expire on the last determined Expiration Date. Notwithstanding
the foregoing, this Agreement and Employee's employment may be terminated at
any time as provided for in Sections 2.2, 2.3 or 2.4 of this Agreement.
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2.2 Termination for Cause. The Company shall have the right to terminate
this Agreement and Employee's employment for the following causes (each a
"Termination for Cause"):
(a) Conviction of Employee for, or entry of a plea of
guilty or nolo contendere by Employee with respect to, any
felony or any crime involving an act of moral turpitude;
(b) Engaging in any act involving fraud or theft;
(c) Conduct which is detrimental to the reputation,
goodwill or business operations of the Company;
(d) Neglect by Employee of his duties or breach by
Employee of his duties or intentional misconduct by Employee in
discharging such duties;
(e) Employee's continued absence from his duties without
the consent of the Employee's supervisor after receipt of
notification from the Company, other than absence due to bona
fide illness or disability as defined herein;
(f) Employee's failure or refusal to comply with the
directions of his supervisor or with the policies, standards and
regulations of the Company, provided that such directions,
policies, standards or regulations do not require Employee (i)
to take any action which is illegal, immoral or unethical or
(ii) to fail to take any action required by applicable law,
regulations or licensing standards; or
(g) Employee's breach of the restrictive covenants set
forth in Section 5 of this Agreement;
provided, however, that termination of Employee for an act or omission
described in subparagraphs (c) through (g) above shall not constitute a valid
Termination for Cause unless Employee shall have received written notice on
behalf of the Board of Directors of the Company by its Chairman or designee
stating the nature of the conduct forming the basis for termination and
affording Employee 10 days to correct the act or omission described. Unless
Employee cures such act or omission to the satisfaction of the Company, such
Termination for Cause shall be effective immediately upon the expiration of the
10 day period. Upon the effectiveness of any Termination for Cause by the
Company, payment of all compensation to Employee under this Agreement shall
cease immediately (except for any payment of compensation accrued but unpaid
through the date of such Termination for Cause).
2.3 Termination by the Company Without Cause. The Company shall have the
right to terminate this Agreement and Employee's employment without cause upon
10 days' written notice to Employee. If the Company terminates this Agreement
and Employee's employment without cause pursuant to this Section 2.3, Employee
shall receive his Base Compensation, as that term is defined in Section 3.1 of
this Agreement, for the remainder of the then current term of this Agreement,
and shall be entitled to continue pre-existing coverage for himself and any
dependents under any applicable
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medical plans described in Section 3.4 of this Agreement for the remainder of
the then current term of this Agreement as long as the Employee continues to
make the same monthly payments and copayments which would have been applicable
if the Employee's employment had not been terminated. Upon such termination,
Employee shall not receive any further compensation pursuant to Sections 3.2,
3.3 or the non-medical benefits described in Section 3.4 of this Agreement
except as required by the terms of such benefit plans. In the event of
termination without cause, Employee acknowledges that the Company shall have no
liability to him whatsoever other than its obligation to pay him his Base
Compensation and to provide continuation of coverage under any applicable
medical plans for the remainder of the then current term of this Agreement, and
subsequently to provide the Employee with medical benefits under the
Consolidated Omnibus Budget Reconciliation Act of 1985 as amended ("COBRA") and
other benefits to which the Employee may be entitled notwithstanding
termination of his employment.
2.4 Termination Due to Disability or Death. If Employee is unable to
perform his duties under this Agreement by reason of physical or mental
disability, this Agreement shall terminate, and, upon such termination,
Employee shall continue to receive the compensation described in Section 3 of
this Agreement, reduced by any disability payment to which Employee may be
entitled in lieu of such compensation, for a period of 6 months following
termination. At the expiration of the 6 month period, payment of all
compensation to Employee under this Agreement shall cease immediately (except
for any payment of compensation accrued but unpaid through that date, COBRA
benefits and other benefits to which the Employee may be entitled
notwithstanding termination of his employment). The term "disability" as used
herein shall mean a condition which prohibits Employee from performing his
duties substantially in the manner he is capable of performing them on the date
of this Agreement, which cannot be removed by reasonable accommodations on the
part of the Company, for 60 days or more during any one year period.
If Employee should die during the term of this Agreement, this Agreement
shall terminate and all payments to Employee under this Agreement shall cease
immediately (except for any such payments accrued but unpaid through the date
of death).
2.5 COBRA Coverage. Any period of continued post-employment medical plan
coverage provided in accordance with this Agreement shall count against the
minimum period of coverage required by the medical continuation provisions of
COBRA and any other applicable legislation.
3. COMPENSATION
3.1 Base Compensation. Subject to Sections 2 and 5.5 of this Agreement,
during the term of this Agreement the Company shall pay to Employee an annual
salary ("Base Compensation"), which salary shall be reviewed annually by the
Nominating and Salaried Personnel Committee of the Board of Directors. Such
Base Compensation shall in no event be lower than the salary of the previous
year. Employee acknowledges that $2,000
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of each year's Base Compensation is consideration for the covenant made by
Employee in Section 5.3 of this Agreement against post-employment competition,
and that the amount of such consideration is reasonable and adequate.
3.2 Incentive Compensation. Subject to Sections 2 and 5.5 of this
Agreement, in addition to the Base Compensation referred to in Section 3.1 of
this Agreement, Employee shall be eligible to participate in any incentive pay
plan adopted by the Board of Directors for a group of employees that includes
executive officers.
3.3 Reimbursement of Business Expenses. During the term of this
Agreement, the Company shall reimburse Employee for all ordinary and necessary
business expenses incurred by him in connection with the Business, upon
submission by Employee to the Company of vouchers itemizing such expenses in a
form satisfactory to the Company, properly identifying the nature and business
purpose of any such expenditure.
3.4 Benefits. During the term of this Agreement, Employee shall be
entitled to participate in such insurance, medical and retirement plans and to
be provided such other fringe benefits as have been accorded other
similarly-situated employees of the Company, as determined from time to time by
the Company.
4. PROPERTY OF THE COMPANY/ASSIGNMENT
Employee agrees that the Business and all businesses developed by him
relating to the Business, including without limitation software, contracts,
fees, commissions, customer lists and any other incident of any business
developed or sought by the Company, or earned or carried on by Employee for the
Company, are and shall be the exclusive property of the Company for its sole
use.
Employee hereby grants and assigns to the Company (without additional
compensation) his entire right, title and interest under applicable laws in and
to all software products and modifications thereto, inventions, improvements,
drawings, designs, prototypes, patents, patent applications, trade secrets,
confidential information, cost information, marketing plans, new product plans,
proposed product improvements, research information, customer lists and
customer contacts, all other technical and research data, and copyrightable
material (including derivative works) made, conceived, developed or acquired by
him solely or jointly with others during the period of his employment by the
Company, but only to the extent the foregoing pertains to the Business. During
the term of his employment with the Company and for two years after the
termination of his employment with the Company for any reason, Employee shall
execute all documents as requested by Company to accomplish such assignment of
rights, and shall otherwise cooperate with the Company and its attorneys in the
protection and enforcement of the Company's intellectual property rights, at
the expense of Company.
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5. COVENANTS OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION
5.1 Non-Disclosure. During the term of his employment with the Company
and for two years after the termination of his employment with the Company for
any reason, Employee shall not, and Employee shall use his best efforts (which
best efforts shall include, without limitation, notifying the Board of
Directors of the Company of any suspected breach of this Section 5.1) to ensure
that any persons or entities over which Employee has control do not, directly
or indirectly, use any Company proprietary or other confidential information
for any purpose not associated with Company activities, or disseminate or
disclose any such information to any person or entity not affiliated with the
Company. Such Company proprietary or other confidential information includes
without limitation sales methods, prospecting methods, customer lists and
customer contacts, computer technology, programs and data, whether on-line or
off-loaded on disk format, inventions, improvements, trade secrets, drawings,
designs, cost information, prototypes, new product plans, proposed product
improvements, methods of presentation and any other plans, programs and
materials used in managing, marketing or furthering Company business. Upon
termination of Employee's employment relationship with the Company, Employee
shall return to the Company all documents, records, notebooks, manuals,
computer disks and similar repositories of or containing Company proprietary or
other confidential information, including all copies thereof, then in
Employee's possession or control, whether prepared by Employee or otherwise.
Employee shall undertake all reasonably necessary and appropriate steps to
ensure that the confidentiality of Company proprietary or other confidential
information shall be maintained.
5.2 Non-Solicitation. For a period of two years after the termination of
Employee's employment with the Company for any reason, Employee shall not (i)
solicit, service or in any way or to any degree handle any business similar to
that performed by Employee for the Company, for any person, firm or entity
which is a customer or actively marketed prospect of the Company or which
becomes a customer or actively marketed prospect of the Company during the term
of Employee's employment, whether or not said customer or prospect shall have
been handled, serviced or produced by Employee, (ii) divert or attempt to
divert any such customer or prospect, or (iii) publicly announce or advertise
his former employment by or connections with the Company.
For a period of two years after the termination of Employee's employment
with the Company for any reason, Employee shall not solicit, take away, hire,
employ or endeavor to employ any of the employees of the Company.
5.3 Non-Competition. Employee acknowledges that the Business is unique
and is conducted throughout the United States and abroad, and, therefore,
agrees that, during the term of his employment with the Company and for two
years after the earlier of the date of termination of his employment with the
Company for any reason or the date when the Employee or the Company provides
written notice to the other party under Section 2.1
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that this Agreement will not be extended, he shall not, without the prior
written consent of the Company, directly or indirectly, own, develop, manage,
operate, join, control or participate in the ownership, management, operation
or control of, or become an employee or independent contractor of, or
consultant to, any business which competes with the Business as conducted by
the Company, or any of its subsidiary companies, or any of their respective
successors, by selling such products, or providing such services as the
Company, or any of its subsidiary companies, or any of their respective
successors, sells or provides during the term of such employment or at the time
of such termination. This restriction will apply worldwide. The foregoing
notwithstanding, nothing herein shall be construed so as to prohibit or
restrict Employee from owning less than five percent (5%) of the outstanding
common stock of any corporation, the stock of which is publicly traded on a
national securities exchange or in the over-the-counter market, that competes
with the Company. Employee further agrees that, during his employment with the
Company, he shall use his best efforts to preserve the Business and the
organization of the Company, to keep available to the Company the services of
its employees, and to preserve for the Company its and his favorable business
relationships with suppliers, customers and others.
5.4 Applicability. Subject to Sections 2.2 and 2.4 of this Agreement, the
provisions of Sections 5.1, 5.2 and 5.3 of this Agreement shall apply to all
terminations of Employee's employment with the Company, regardless of the cause
or circumstances thereof and whether such termination was voluntary or
involuntary, for cause or without cause. Further, Employee's covenants of
non-disclosure, non-competition, and non-solicitation, along with the Company's
remedies for the breach or threatened breach of those covenants, shall remain
in effect following the termination of this Agreement and Employee's
employment, regardless of the cause or circumstances thereof and whether such
termination was voluntary or involuntary, for cause or without cause.
5.5 Remedies. In view of the services which Employee will perform for the
Company, which are special, unique, extraordinary and intellectual in
character, which place him in a position of confidence and trust with the
customers and employees of the Company, and which provide him with access to
confidential financial information, trade secrets, "know-how" and other
confidential and proprietary information of the Company, in view of the
geographic scope and nature of the business in which the Company is engaged,
and recognizing the value of this Agreement to him, Employee expressly
acknowledges that the restrictive covenants set forth in this Agreement,
including without limitation the geographic scope of such covenants, are
necessary in order to protect and maintain the proprietary interests and other
legitimate business interests of the Company, and that the enforcement of such
restrictive covenants shall not prevent him from earning a livelihood.
Employee also acknowledges that the scope of the operations of the Company are
such that it is reasonable that the restrictions set forth in this Agreement
are not more limited as to geographic area than is set forth herein. Employee
further acknowledges that the remedy at law for any breach or threatened breach
of this Agreement will be inadequate and, accordingly, that the Company, in
addition to all other
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available remedies (including, without limitation, seeking such damages as it
has sustained by reason of such breach), shall be entitled to injunctive or any
other appropriate form of equitable relief. Notwithstanding anything in this
Agreement to the contrary, in the event Employee breaches any of the covenants
of non-disclosure, non-solicitation or non-competition set forth in Sections
5.1, 5.2 and 5.3 of this Agreement, he shall not receive any further payments
from the Company pursuant to this Agreement.
6. INDEMNIFICATION
The Company shall indemnify and hold harmless Employee from and against
any claim of liability or loss (including costs and reasonable attorneys' fees)
arising as a result of Employee's proper performance of his obligations under
this Agreement in accordance with the provisions for indemnification of
officers of the Company set forth in the Bylaws of the Company.
7. MISCELLANEOUS PROVISIONS
7.1 Assignment and Successors. The Company may assign its rights and
obligations under this Agreement to any corporation or other entity which
controls, is controlled by, or is under common control with, the Company,
without Employee's consent. Further, if the Company sells all or substantially
all of the assets of the Business, the rights and obligations of the Company
under this Agreement may be assigned without Employee's consent. In all other
circumstances, the rights and obligations of the Company under this Agreement
may be assigned with Employee's consent (which shall not be unreasonably
withheld) and shall inure to the benefit of and be binding upon the successors
and assigns of the Company. Employee's obligation to provide services
hereunder may not be assigned to or be assumed by any other person or entity.
7.2 Notices. All notices, requests, demands, or other communications
under this Agreement shall be in writing and shall only be deemed to be duly
given if to the Company c/o Corporate Secretary, and to Employee at his address
as shown in the Company's records.
7.3 Severability. If any provision or portion of this Agreement shall be
or become illegal, invalid or unenforceable in whole or in part for any reason,
such provision shall be ineffective only to the extent of such illegality,
invalidity or unenforceability, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. If any court of
competent jurisdiction should deem any covenant herein to be invalid, illegal
or unenforceable because its scope is considered excessive, such covenant shall
be modified so that the scope of the covenant is reduced only to the minimum
extent necessary to render the modified covenant valid, legal and enforceable.
7.4 Integration, Amendment and Waiver. This Agreement constitutes the
entire agreement between the Company and the Employee, superseding all prior
similar
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arrangements and agreements, and may be modified, amended or waived only by a
written instrument signed by both of them. This Agreement does not supersede
the separate employment agreement between the Employee and the Company relating
to a change in control of the Company.
7.5 Governing Law. This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Wisconsin applicable
to contracts executed and wholly performed within such state.
7.6 Interpretation. The headings contained in this Agreement are for
reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement. The language in all parts of this Agreement
shall in all cases be construed according to its fair meaning, and not strictly
for or against any party. In this Agreement, unless the context otherwise
requires, the masculine, feminine and neuter genders and the singular and the
plural include one another.
7.7 Non-Wavier of Rights and Breaches. No failure or delay of any party
in the exercise of any right given to such party hereunder shall constitute a
waiver unless the time specified for the exercise of such right has expired,
nor shall any single or partial exercise of any right preclude other or further
exercise thereof or of any other right. The waiver by a party of any default
of any other party shall not be deemed to be a waiver of any subsequent default
or other default by such party.
7.8 Attorneys' Fees. In the event that the Employee or the Company is
required to bring an arbitration proceeding or any legal action to enforce the
terms of this Agreement, the prevailing party shall, in addition to any other
remedies available to it, be entitled to recover its reasonable attorneys' fees
and costs from the losing party.
7.9 Dispute Resolution.
(a) (i) Any dispute, controversy or claim arising out of or relating to
this Agreement or any term or provision of this Agreement, including without
limitation any claims of breach, termination or invalidity thereof, (ii) any
matter subject to arbitration under any provision of this Agreement, and (iii)
any other matter which the parties agree to submit to arbitration shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Such
arbitration proceedings shall be held in Milwaukee, Wisconsin.
(b) Notwithstanding the foregoing, the Company at all times shall have the
right to bring an action to enforce the covenants and seek the remedies set
forth in Section 5 of this Agreement through the courts as it deems necessary
or desirable in order to protect its proprietary and other confidential
information or to prevent the occurrence of any event which the Company
believes will cause it to suffer immediate and irreparable harm or damage. The
parties agree that any such action may be brought in a state or federal
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court located within Milwaukee, Wisconsin. The parties waive any and all
objections to jurisdiction or venue. The parties further agree that service of
process may be made by registered mail to the addresses referred to in Section
7.2 of this Agreement, and that such service shall be deemed effective service
of process.
7.10 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Employee have caused this Employment
Agreement to be duly executed as of the date first written above.
EMPLOYEE XXXXXX & XXXXXXXX CORPORATION
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X. X. Xxxxxxxx, Xx., Chairman
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