EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS AGREEMENT, made and entered into
this _____ day of __________, ____, by and between XXXXXXX INDUSTRIES, INC., an
Indiana corporation, hereinafter referred to for convenience as “XXXXXXX”, and
___________________, hereinafter referred to for convenience as
“EMPLOYEE,”
RECITALS:
X. Xxxxxxx
desires to continue the employment of Employee, and Employee desires to continue
his employment with Xxxxxxx under the terms and conditions set forth in this
Agreement.
X. Xxxxxxx
is a manufacturer of building products and materials for sale to the
Manufactured Housing and Recreational Vehicle Industries in the United States,
and a supplier of products to other markets, including furniture, marine,
architectural, and automotive, and an independent wholesale distributor of
pre-finished wall and ceiling panels, particleboard, hardboard siding, roofing
products, high pressure laminates, passage doors, building hardware, insulation,
and other related products (“Patrick’s Business”).
C. Employee
has been or will be employed in the position of
____________________________. This Agreement shall be deemed amended
to reflect any actual change in the position, duties, or responsibilities of
Employee.
D. Employee
has or will become acquainted with the affairs of Xxxxxxx, its officers and
employees, its services, products, business practices, business relationships,
and the needs and requirements of its customers or prospective customers, trade
secrets, Intellectual Property, Works, Confidential Information, and other
property that is proprietary to Xxxxxxx. This Agreement is entered
into to protect each of these interests of Xxxxxxx and Patrick’s goodwill, and
to prevent unfair competition in the event of the use or disclosure of
Confidential Information or trade secrets by Employee.
NOW, THEREFORE, in consideration of
Employee’s continued employment by Xxxxxxx, acknowledged by the parties as
valuable consideration and for other valuable consideration, the parties hereby
agree as follows:
1. Employment and
Compensation. Employee is hereby employed by Xxxxxxx, and he
shall assist in Patrick’s business by performing the duties, having the
responsibilities, and by performing such other services for Xxxxxxx as may from
time to time be assigned by Xxxxxxx to him. All services performed by
Employee for Xxxxxxx shall be performed in accordance with Patrick’s
instructions relating thereto. Employee’s job performance shall be
subject to regular review and evaluation by Xxxxxxx. Employee’s
employment with Xxxxxxx shall be on a full-time basis and, while employed by it,
he shall not engage, directly or indirectly, in any activity, employment or
business venture, whether or not for remuneration, that might reasonably be
expected to be detrimental to Xxxxxxx, conflict with his commitment and loyalty
to Xxxxxxx, result in a conflict of interest, or adversely affect the proper
performance of his duties. Xxxxxxx shall pay Employee an annualized
salary of
______________________________________($XXXXXXXXX). Employee shall be
eligible for such benefits as are made available to all other full-time salaried
employees of Xxxxxxx, as such benefits are amended from time to time by Xxxxxxx,
including, but not limited to, medical and health insurance
programs. Employee’s salary shall be subject to review periodically
by Xxxxxxx in accordance with its customary salary review process.
2. Term. This
agreement and Employee’s employment hereunder shall continue on an at-will basis
until terminated by one of the parties hereto.
In the event Xxxxxxx terminates
Employee’s employment without cause during this agreement, Xxxxxxx shall make a
separation payment to Employee equivalent to___ months of his
salary (payable in equal installments over the ___ month period after the
termination of his employment).
The parties understand and agree that
Employee’s resignation from employment, for any reason, with or without cause,
shall not result in any obligation by Xxxxxxx to make any separation payment to
him. Furthermore, as a condition precedent to the payment of
separation pay to Employee after this Agreement is terminated without cause by
Xxxxxxx during the Agreement, Employee and Xxxxxxx shall sign a Mutual Release
of Claims in a form satisfactory to Xxxxxxx and Employee. All
obligations of Employee contained in paragraphs 3 through 7, inclusive hereof,
shall survive the termination of this Agreement
and his
employment hereunder. Additionally, any amounts owed by Employee to
Xxxxxxx shall be deducted from the separation pay that is paid to
him. Except to the extent otherwise provided by applicable state or
federal law, benefits shall cease upon termination of employment for any
reason.
For purposes of this Agreement,
termination for “cause” means Employee’s: (a) commission of an act of
dishonesty, fraud, theft, or embezzlement; (b) sabotage or intentional failure
to act on the direction of an Officer or the Board of Directors of Xxxxxxx or
any affiliate; (c) engagement, directly or indirectly, in a business or
occupation (as a proprietor, partner, officer, shareholder, or employee, or
otherwise) in competition with Xxxxxxx or any of its affiliates, or his
commission of a breach of paragraphs 3 through 7 of this Agreement; (d) other
material breach of this Agreement; (e) indictment or conviction for a felony
violation of a criminal law, other than motor vehicle offenses; (f) the use or
possession of illegal drugs; or (g) failure to achieve and/or perform, to
Patrick’s satisfaction, Employee’s duties and responsibilities (other than due
to disability); provided, however, that no
termination may take place under this subparagraph (g) unless and until Employee
has been given at least forty-five (45) days’ prior written notice of the
deficiency which shall provide him with an opportunity to correct it, and at the
end of such period Xxxxxxx xxx, if it desires, terminate his employment if it
determines that he has not performed or corrected any deficiency in a manner
satisfactory to Xxxxxxx.
Employee agrees to give Xxxxxxx at
least thirty (30) days’ prior written notice of his resignation of
employment. If Employee provides such notice of resignation, Xxxxxxx
xxx, after receiving such notice, move the effective date of Employee’s
resignation to an earlier date by providing notice of same to Employee, and such
action by Xxxxxxx shall not be deemed a termination without cause under this
Agreement. Rather, the Employee’s effective date of resignation shall
be the date so designated by Xxxxxxx.
3. Confidential Information and
Records
A. Confidential Information
Defined. Employee has or may have access to or knowledge of
trade secrets and other information about Xxxxxxx which is confidential or
proprietary to Xxxxxxx, including but not limited to (1) information about
Xxxxxxx, Patrick’s Business, its employees and its products and services; (2)
techniques, technical
know-how,
methods, and formulations; (3) hardware, software and computer programs, and
technology used by Xxxxxxx; (4) the customer/client database and other
information about Patrick’s customers/clients, such as contacts, criteria,
requirements, specifications, policies, or other similar information; (5)
relationships with other service providers, partners, and contractors; (6)
vendor and supplier information; (7) marketing plans and concept; (8) fee, rate,
and price information; (9) sales, costs, profits, profit margins, salaries, and
other financial information pertaining to Xxxxxxx or Patrick’s Business; and
(10) information pertaining to Patrick’s customers, including but not limited
to, personal information such as names, addresses, e-mail addresses, financial
information, and any information concerning personal matters or preferences of
same. (All collectively referred to as “Confidential
Information”).
B. Use and Disclosure of
Confidential Information. Employee acknowledges that the
disclosure of any Confidential Information to an unauthorized third party would
be extremely detrimental and prejudicial to Xxxxxxx. Therefore,
Employee shall keep confidential and shall not use or disclose any Confidential
Information to anyone except Xxxxxxx or Patrick’s authorized
representatives. Employee shall use such Confidential Information
only in the course of Employee’s duties as an employee of Xxxxxxx and for no
other purpose. Employee shall follow all company policies and
procedures to protect all Confidential Information and shall take any additional
precautions necessary under the circumstances to preserve and protect the use or
disclosure of any Confidential Information at all times.
C. Duty Not to Use or Disclose
After Termination. These confidentiality obligations shall
continue as long as the Confidential Information and/or records remain
confidential and shall survive both the termination of this Agreement and the
termination of Employee’s employment with Xxxxxxx.
D. Public
Information. From time to time, Xxxxxxx xxx, for its own
benefit, choose to place certain Confidential Information or records of Xxxxxxx
in the public domain. The fact that such Confidential Information may
be made available to the public in a limited form and under limited
circumstances does not change the confidential
and
proprietary nature of such information, and does not release Employee
from his duties with respect to such Confidential Information as set forth in
this Agreement.
4. Ownership of Documents and
Return of Material Upon Termination
A. Ownership of Records and
Copies. Any and all documents, records and copies of records,
including but not limited to hard copies or copies stored on a computer or disk,
e-mail, databases, etc. pertaining to Intellectual Property, Works, or
Confidential Information (collectively “Xxxxxxx Documents”) that are made or
received by Employee in the course of his employment shall be deemed to property
of Xxxxxxx. Employee shall use Xxxxxxx Documents and information
contained in them only in the course of Employee’s employment for Xxxxxxx and
for no other purpose. Employee shall not use or disclose any Xxxxxxx
Documents or copies of Xxxxxxx Documents to anyone except to authorized
representatives of Xxxxxxx.
B. Return Upon
Termination. Upon termination of employment for any reason,
Employee shall immediately deliver to Xxxxxxx all of Patrick’s Documents and all
other property of Xxxxxxx in Employee’s possession or under Employee’s custody
or control.
5. Restrictive
Covenants
A. Non-Competition. During
the Restricted Period, Employee agrees that he shall not, directly or
indirectly, render services to, become employed by, associated with, participate
or engage in, or otherwise become connected with (other than solely as a less
than five percent (5%) investor through purchases of securities in a publicly
traded company) any person, partnership, corporation, or other entity engaged in
a business competitive to that of the Company and its subsidiaries in any state
where the Company has customers during the term of Employee’s employment with
the Company and will not solicit any customer of the Company on behalf of any
business competitive to the Company.
For the purpose of this agreement, a
business shall be deemed to be competitive to that of the Company and its
subsidiaries if such business is primarily engaged in the manufacture,
distribution, and sale of materials for use in the manufactured housing,
recreational vehicle, furniture, or aluminum extrusions
industries.
Further, in consideration of this
agreement and as a condition to the Company’s obligations hereunder, Employee
agrees that he will not, without prior written authorization of the Board of
Directors of Company, at any time use or disclose to any person or entity not
legally entitled thereto any confidential information relating to the business
of the Company and its subsidiaries obtained by him while in the Company’s
employ and, further, after the Employee leaves the employ of the Company, he
shall not take with him, without the President’s prior written consent, any
documents or reproductions thereof, data, calculation or copies thereof, or any
nonpublic information of any kind pertaining to the Company and its
subsidiaries.
It is agreed by the parties that the
time, territory, product and business activities limitations, and definitions
contained herein are reasonable in all respects. In the event
Employee shall violate his agreement of noncompetition or nondisclosure, or
both, Company shall be relieved from the payment of any further benefits which
would otherwise be payable to the Employee under the terms hereof.
It is the desire and intent of the
parties that the foregoing provisions of this Section 5 shall be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Section 5 shall be adjudicated to be invalid or
unenforceable, the parties agree that such provision shall be amended to limit
enforcement to the extent required by law and/or public policy and the provision
shall be enforced as amended, such amendment to apply only with respect to the
operation of such provision of this Section 5 in the particular jurisdiction in
which such adjudication is made.
B. Non-Solicitation. During
the Restricted Period, Employee SHALL NOT contact or
solicit either for Employee or for others, any of Patrick’s Customers or Clients
or any prospective Customers or Clients with whom Employee has had contact or
solicited at any time in the twenty-four (24) month period of time preceding the
termination of Employee’s employment, to (1) divert or influence or attempt to
divert or influence any business of Xxxxxxx to a Competitor of Xxxxxxx; (2)
market, distribute, sell,
or
provide products or services in competition with Xxxxxxx; or (3) otherwise
interfere in any fashion with Patrick’s business or operations then being
conducted by Xxxxxxx.
C. No
Hire. During the Restricted Period, Employee shall not hire,
employ, or attempt to hire or employ any person who is an employee of Xxxxxxx,
or who was within the preceding twelve (12) month period an employee of Xxxxxxx,
or in any way (1) cause or assist or attempt to cause or assist any employee to
leave Xxxxxxx; or (2) directly or indirectly seek to solicit, induce, bring
about, influence, promote, facilitate, or encourage any current employee of
Xxxxxxx to leave Xxxxxxx to join a Competitor, Vendor, Supplier, Customer or
Client, or otherwise.
D. Non-Disparagement. Employee
shall not make any negative or disparaging remarks about Xxxxxxx to any
Competitor, Vendor, Supplier, Customer, Customer’s employees, prospective
Customer or other employee of Xxxxxxx, or to the media or to any other
person.
E. Definitions.
1. Restricted
Period. “Restricted Period” shall mean the period of time
during Employee’s employment with Xxxxxxx and for a period of one (1) year from
the date of termination of Employee’s employment with Xxxxxxx for any
reason. In the event of a breach of this Agreement by Employee, the
Restricted Period shall be extended automatically by the period of the
breach.
2. Competitor. A
“Competitor” shall mean any person or entity that competes with Xxxxxxx in
Patrick’s Business.
3. Customer or Client
Defined. A “Customer” or “Client” of Xxxxxxx is any person or
entity which, within the preceding twelve (12) month period, used or purchased
or contracted to use or purchase any services or products from
Xxxxxxx.
F. Permissible Ownership
Interest by Employee. The prohibitions in this Section shall
apply to any employment with, involvement or engagement in, or control of,
another business or entity, whether as an employee, owner, manager, director,
officer, agent, sole proprietor, joint venturer, partner, member, shareholder,
independent
contractor,
or other capacity, however, these prohibitions shall not prevent the ownership
of stock which is publicly traded, provided that (1) the investment is passive;
(2) Employee has no other involvement with the corporation; (3) Employee’s
interest is less than five (5%) percent of the shares of the company; and (4)
Employee makes full written disclosure to Xxxxxxx of the stock at the time that
the Employee acquires the shares of stock.
6. Remedies. Upon
any breach of this Agreement by Employee, Xxxxxxx shall be entitled to each of
the following remedies which shall be deemed cumulative:
A. Injunctive
Relief. The parties agree that any violation by Employee of
paragraphs 3 through 5 of this Agreement will cause Xxxxxxx to suffer
irreparable harm for which Xxxxxxx will not have an adequate remedy at
law. Therefore, if Employee threatens to violate or violates any such
provision of this Agreement, Xxxxxxx shall be entitled to injunctive relief,
including, but not limited to, a temporary restraining order and/or a
preliminary or permanent injunction to restrain or enjoin any violation or
threatened violation of this Agreement. Xxxxxxx shall be entitled to
immediate injunctive relief without notice and without the posting of any
bond. Patrick’s right to injunctive relief shall be in addition to,
and not in lieu of, any other remedy that may be sought by Xxxxxxx.
B. Damages. To
the extent calculable, Xxxxxxx shall be entitled to recover from Employee,
monetary damages, including lost profits. For purposes of determining
such damages, the parties agree that any gross profits earned by Employee as a
direct or indirect result of any activity of Employee in violation of this
Agreement shall be deemed “lost profits” of Xxxxxxx.
C. Costs, Expenses, and
Attorney’s Fees. The substantially prevailing party shall be
entitled to recover from the other party all costs, expenses and reasonable
attorneys’ fees incurred in seeking either enforcement of this Agreement or
damages for its breach or in defending any action to challenge or construe the
terms of this Agreement.
D. Prejudgment
Interest. Xxxxxxx shall be entitled to recover prejudgment
interest on all amounts recovered in the amount of ten (10%) percent per
annum.
E. Other Legal or Equitable
Remedies. Xxxxxxx shall be entitled to pursue any other legal
or equitable remedies that may be available to Xxxxxxx.
F. Claims by
Employee. Any claim or cause of action by Employee against
Xxxxxxx shall not constitute a defense to the enforcement of the restrictions
and covenants set forth in this Agreement and shall not be used to prohibit
injunctive relief.
7. Statutory and Common Law
Duties. The duties Employee owes to Xxxxxxx under this
Agreement shall be deemed to include federal, statutory, and the common law
obligations of the Employee, and does not in any way supersede or limit any of
the obligations or duties Employee otherwise owes to Xxxxxxx. This
Agreement is intended, among other things, to supplement the provisions of the
Indiana Trade Secrets Act, as enacted and amended from time to
time.
8. Jurisdiction and Venue;
Governing Law. Any action to enforce, challenge, or construe
the terms or making of this Agreement or to recover for its breach shall be
litigated exclusively in a state court located in Elkhart County, Indiana, or in
a federal court located in the Northern District of Indiana, except that Xxxxxxx
xxx elect, at its sole discretion, to litigate the action in the county or state
where any breach by Employee occurred or where the Employee can be
found. Employee hereby waives any defense of lack of personal
jurisdiction, improper venue, or forum non convenieno. This Agreement
and the performance by the parties under this Agreement shall be governed by the
laws of the State of Indiana, notwithstanding the choice of law provisions of
the venue where the action is brought, where the violation occurred, or where
the Employee may be located.
9. Severability. The
restrictions contained in this Agreement are reasonable and necessary to
safeguard the protectable interests of Xxxxxxx. Should any part of
this Agreement be unenforceable or invalid for any reason, the remainder of this
Agreement shall be deemed valid and enforceable and shall be enforced to the
greatest extent possible under the then existing law.
10. Entire Agreement,
Modifications, Interpretation. This Agreement, with the
Officer’s Retirement Agreement, constitutes the entire agreement by and between
Xxxxxxx and Employee and shall supersede all prior and contemporaneous
agreements, representations, and understandings, whether written or oral, except
obligations imposed by law which shall be deemed a part of this
Agreement. Any amendment of, change to, or modification of this
Agreement shall be effective only if such amendment, change, or
modification
is in writing and signed by an authorized representative of
Xxxxxxx. This Agreement shall be construed as a whole, according to
its fair meaning, and not construed for or against either party. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute but one and the same
Agreement.
11. Successors. This
Agreement shall inure to the benefit of and may be enforced by Xxxxxxx and it
respective legal representatives, successors, and assigns, and shall be binding
on Employee and his personal representatives. As this Agreement is
personal in nature as to Employee, it may not be assigned by him.
12. Nonwaiver. Failure
of either party to insist in any one or more instances upon performance of any
provision hereof or to pursue any right hereunder shall not be construed as a
waiver of such provision or the relinquishment of such right.
13. Employee
Warranties. Employee represents and warrants that his
employment with Xxxxxxx and the performance of this Agreement will not violate
any express or implied obligation to any former employer or other
party. Employee further represents that he has not brought with him
and will not use or disclose during his employment with Xxxxxxx any information,
documents, or materials subject to any legally enforceable restrictions or
obligations as to confidentiality or secrecy. Furthermore, Employee
shall not make any agreements with, or commitments to, any person, firm, or
corporation that would prevent, restrict, or hinder the performance of his
duties or obligations under this Agreement. In addition, Employee
agrees that he shall share a copy of this Agreement with any subsequent employer
in order to ensure that there is no violation hereof, and he consents to Xxxxxxx
sharing a copy of this Agreement with any such employer.
THE PARTIES HERETO ACKNOWLEDGE THAT
THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREED TO BE BOUND BY ITS
TERMS. They further acknowledge that they have exercised due
diligence in reviewing this Agreement, and that each has had adequate
opportunity to consult with legal counsel or other advisors to the extent that
each deemed such consultation necessary.
IN WITNESS WHEREOF, the Company has
caused this Agreement to be signed on its behalf and its corporate seal to be
affixed and attested by its officers thereunto duly authorized, and Employee has
herein set his hand and seal the day and year first above written.
XXXXXXX INDUSTRIES, INC.
By: _____________________________________
Printed: __________________________________
Title: ____________________________________
EMPLOYEE
By: ______________________________________
Printed: __________________________________
