EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into effective the 14th day of August, 1998
and between Vicom, Incorporated ("Employer") and Xxx Xxxxxx ("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 (3) years commencing September 23, 1998
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.
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.
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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 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 may receive or contribute to the production of
Confidential Information. For purposes of this Agreement, Employee
agrees that "Confidential Information" shall be 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 develop or of which
the undersigned may obtain knowledge or access throughout as a
result to 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, diagrams, flow charts, research, development, processes,
procedures, "know-how", marketing techniques and materials, marketing
and development plans, customer names and other information related of
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:
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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 known
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 on 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 material in Employees' 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 secret or time, or which result from any work performed by
Employee for Employer, shall belong exclusively to Employer and 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 on the opinion of Employer to
obtain patents or copyrights or to otherwise protect or vest entire right
and title in and to confidential in Employer.
E. That he has been given a copy of and has reviewed chapter 325C of Minnesota
status, 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 I this Agreement may give rise of a cause of
action of favor of Vicom against him/her for general and special damages.
7. VACATIONS. Employee shall be entitled each year to a vacation as stated on
exhibit B.
8. TERMINATION OF EMPLOYMENT. This agreement will terminate in accordance
with the following provisions:
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A. Upon forty five (45) 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 any act or acts of
misconduct, dishonesty, or disloyalty against Employer.
B. After 12 months, if (i) the company is experiencing significant operating
losses, (in excess of $300,000.00) or (ii) the board of directors is
irrevocably deadlocked with regards as to how to manage the company.
9. DEATH OR DISABILITY DURING EMPLOYMENT. If Employee dies or becomes disabled
during the term or his/her employment, Employer shall pay 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.
10. COVENANT NOT TO COMPETE. For a period of one (1) year from the date of
termination of his employment with Employer, for any reason whatsoever,
Employee will not, directly or indirectly on his own behalf or as a partner,
officer, employee, consultant, agent, shareholder, director or trustee of any
person, firm, corporation or other entity, engage or participate in any
business which engages or participates in the sale, installation or service
of Nec, Tadiran or Hitachi equipment or MCI products and services on the date
of such termination of employment in the State of Minnesota 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 constructed 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&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/he 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" 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.
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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 Employees 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 on which Employer has a significant financial interest, or
which Employer directly or indirectly, though one or more intermediaries
officers or employees, 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 provisions 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 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.
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IN THE WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
VICOM, INCORPORATED
By /s/ Xxxxxx Xxxxxxx
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EMPLOYEE
/s/ Xxxxx Xxxxxx
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Exhibits to Employment Agreement Dated August 14, 1998 between
Vicom, Inc. (Employer) And Xxx Xxxxxx (Employee).
Exhibit A: Job Description
Position: Chief Executive Officer and Member of the Board of Directors
Reports to: Board of Directors
Duties: To improve the quality of Vicom's Board; to assist in revising
company business and financial plans, and direct the execution of same; to
help in recruiting qualified staff and customers; to improve the quality of
Vicom's technical operations; to develop expansion and growth opportunities,
as appropriate; to direct the activities of other officers and staff, as
appropriate; special projects, as needed.
Exhibit B; Compensation
Salary: $132,000 per year ($11,000 per month)
Car Allowance: $500.00 per month.
Guaranteed Vacation: For the first year, guaranteed three weeks per year; one
additional week at discretion of board of directors. Thereafter, four weeks
per year.
Benefits: All other standard company benefits per attached.
Stock Options: 225,000 shares at an exercise price of 60 cents per share; to
be vested at the rate of 75,000 shares per year on the first three
anniversary dates from employee's starting date of employment. All standard
terms of Vicom's Incentive Stock Option program to apply.
Agreed to:
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxx
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Employer Employee
