EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of March
____, 2002 (the "Effective Date"), by and between ▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, INC., a
Delaware corporation (the "Company"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Employee"), an
individual resident of the State of Pennsylvania.
W I T N E S S E T H :
WHEREAS, the Company wishes to employ Employee as Vice President of
Manufacturing;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt, adequacy, and sufficiency of which are hereby acknowledged and
accepted, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following capitalized
terms shall have the definition set forth below:
(a) "Affiliate" shall mean any corporation, limited partnership,
limited liability company or other entity engaged in the same business as
the Company or a related business, which is controlled by or under common
control with the Company.
(b) "Business of the Company" shall mean the manufacture of clothing
items for the military, police forces, fire departments and private
security agencies.
(c) "Cause" shall mean:
(i) material act of fraud, dishonesty, misappropriation or
similar act of bad faith on the part of Employee;
(ii) a willful failure by Employee to comply with laws or
regulations relating to the Business of the Company or relating to his
employment with the Company;
(iii)material or continuing failure by Employee to perform
satisfactorily his duties for the Company (other than as a result of
illness, vacation or Disability), but only after the Company shall
have given Employee written notice specifying with particularity such
failure, and Employee shall not have corrected such lack of
performance within thirty (30) days after such notice;
(iv) a material breach of Section 7 of this Agreement;
(v) as a result of Employee's negligence or willful misconduct,
Employee shall commit any act that causes, or shall knowingly fail to
take reasonable and appropriate action to prevent, any material injury
to the financial condition or business reputation of the Company; or
(vi) indictment for a felony.
(d) "Confidential Information" shall mean any data or information,
other than Trade Secrets, that is material to the Company and is not
generally known by the public. To the extent consistent with the foregoing,
Confidential Information includes, but is not limited to, lists of the
Company's current or potential customers, lists of and other information
about the Company's executives and employees, financial information that
has not been released to the public by the Company, marketing techniques,
price lists, pricing policies, and the Company's business methods,
contracts and contractual relations with the Company's customers and
suppliers and future business plans.
(e) "Disability" shall mean an incapacity due to physical or mental
illness or injury that is permanent in nature and prevents Employee from
performing the substantial and material duties of his employment hereunder.
Any such disability shall be deemed to be permanent in nature if such
disability is expected to last for a period of twelve (12) consecutive
months.
(f) "Restricted Territory" shall mean the state of Pennsylvania.
(g) "Trade Secret" shall mean information of the Company, without
regard to form, which is not commonly known by or available to the public
and which derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. Trade Secrets also include any information described
in this Section 1(g) which the Company obtains from another party which the
Company treats as proprietary or designates as trade secrets, whether or
not owned or developed by the Company.
2. Employment. The Company hereby employs the Employee as Vice President
of Manufacturing of the Company on the terms stated herein, and Employee accepts
such employment with the Company on the terms stated in this Agreement. The
Company shall employ Employee for a five (5) year term commencing on the
Effective Date, unless sooner terminated pursuant to Section 6 hereof. This
Agreement shall be automatically renewed for successive one (1) year renewal
terms unless either the Company or Employee delivers to the other a notice of
nonextension at least sixty (60) days prior to the scheduled expiration date of
this Agreement.
3. Duties. In his capacity as Vice President of Manufacturing, Employee
shall perform the duties appropriate to such office or position, and such other
duties and responsibilities as are assigned to him from time to time by the
Board of Directors of the Company. The Employee agrees that, during the term of
his employment, he will devote his full productive time to the Company and will
faithfully and diligently carry out his duties as Vice President of
Manufacturing of the Company. Employee will report to the ______________ of the
Company and shall comply with all of its reasonable and lawful directives.
Employee agrees that during the term of his employment, he will not work for
anyone else or engage in any activity in competition with or detrimental to the
Company, provided, however, that Employee shall not be prohibited from engaging
in educational, welfare, social, religious, civic, trade and industry-related
organizations.
4. Compensation.
(a) Base Salary. The Company will pay Employee a base salary of
$89,700 per year, payable bi-monthly.
(b) Car Allowance. The Company will pay Employee a car allowance of
$540 per month.
5. Additional Benefits.
(a) Vacation. Employee shall be entitled to a total of two (2) weeks
of paid vacation for each year during the term of this Agreement. Any
vacation not taken in any such year shall be forfeited and shall not be
carried forward to subsequent years.
(b) Insurance. Employee shall receive the employee benefits such as
health insurance, life insurance and disability insurance as are provided,
from time to time, to senior executives of the Company.
(c) Business Expenses. Upon submission of itemized expense statements
in the manner specified by the Company, Employee shall be entitled to
reimbursement for reasonable business and travel expenses duly incurred by
Employee in the performance of his duties under this Agreement.
6. Termination.
(a) Termination for Cause. The Company shall have the right to
terminate this Agreement for Cause. If the Company terminates Employee's
employment for Cause, the Company shall have no further obligations
hereunder accruing from and after the date of such termination of
employment of Employee by the Company.
(b) Death or Disability. This Agreement shall terminate upon
Employee's death or Disability. A "Disability" with respect to Employee
shall be deemed to occur by the Board of Directors of the Company in their
reasonable discretion. In the event that Employee or his representative
shall disagree with the determination of the Board of Directors that a
Disability has occurred, Employee or his representative shall be entitled
to appoint a medical doctor and the Company shall be entitled to appoint a
medical doctor and the two (2) doctors shall in turn appoint a third
medical doctor who shall examine Employee to determine the question of
Disability. The parties hereby agree that the determination of the medical
doctor appointed by the medical doctor of Employee and the medical doctor
of the Company shall be binding upon all parties to this Agreement.
(c) Termination without Cause. The Chairman of the Company's Board of
Directors shall have the right to relieve Employee of his duties hereunder
for any reason and at any time. Such termination not for cause shall be
effective on the date specified by the Board of Directors. Termination of
Employee's employment due to Employee's death or Disability will be deemed
to be termination by the Company without cause.
(d) Termination Payments. In the event of the termination of
Employee's employment with the Company, Employee will be paid an amount
determined as follows:
(i) In the event of termination of Employee's employment by
reason of his death or Disability, Employee or in the case of
Employee's death, Employee's surviving spouse or other beneficiary
designated by Employee during his lifetime, or Employee's estate, as
appropriate, will be entitled to payment of his Base Salary through
the date of his termination of employment and for a period of three
(3) months thereafter.
(ii) In the event of termination of Employee's employment by
reason of the Company terminating him for Cause or in the event that
Employee voluntarily terminates his employment other than as provided
in Section 6(c), he will be paid his Base Salary through the date of
his termination of employment.
(iii)In the event that Employee violates Section 7 of this
Agreement, or a court of competent jurisdiction or arbitrator declares
any provision in Section 7 unenforceable, the Company's obligation to
pay Employee pursuant to this Section 6 shall terminate.
(iv) In the event of termination of Employee's employment by
reason of the Company terminating him without cause and as damages
therefor, Employee will be entitled to payment of his Base Salary
through the remaining term of this Agreement.
(v) The termination payments due hereunder shall be in lieu of
any and all other amounts for which Company may be liable under any
laws, rules or regulations relating to the employer-employee
relationship. As a condition to receipt of the termination payments
provided for hereunder, Employee or his personal representative shall
execute a general release of all claims in favor of the Company.
(e) Confidentiality of Cause Notice. In the event of Employee's
termination for Cause, the Company will provide Employee with prompt
written notice stating with reasonable specificity the basis for the
Company's action. Employee agrees that in the event he receives written
notice of termination with Cause, Employee shall treat the contents of said
notice as privileged and Employee shall have no action against the Company
or any of its officers, agents or employees due to the contents of said
notice unless the contents are intentionally false and malicious.
7. Covenants.
(a) Confidential Relationship and Protection of Trade Secrets and
Confidential Information. In the course of Employee's employment by the
Company, Employee has had access to and will have access to the Company's
most sensitive and most valuable trade secrets, proprietary information,
and confidential information concerning the Company and its affiliates and
their customers and business affairs which constitute valuable business
assets of the Company, the use, application or disclosure of any of which
will cause substantial and possible irreparable damage to the business and
asset value of the Company. Accordingly, Employee accepts and agrees to be
bound by the following provisions:
(i) At any time, upon the request of the Company and in any
event upon the termination of employment, Employee will deliver to the
Company all memoranda, notes, records, drawings, manuals, files or
other documents, and all copies of each, concerning or constituting
Confidential Information or Trade Secrets and any other property or
files belonging to the Company or any of its affiliates that are in
the possession of Employee, whether made or compiled by Employee or
furnished to or acquired by Employee from the Company.
(ii) In order to protect the Company's Trade Secrets and
Confidential Information, Employee agrees that:
(A) At any time during the term of this Agreement and
indefinitely thereafter, Employee will not, except as expressly
authorized or directed by the Company, use, copy or disclose, or
permit any unauthorized person access to, any Trade Secrets
belonging to the Company or any third party; and
(B) During the term of employment by the Company and for a
period of two (2) years after termination of such employment,
Employee will not use, copy, or disclose, or permit any
unauthorized person access to, any Confidential Information
belonging to the Company or any third party.
(b) Ownership of Property. Employee agrees and acknowledges that all
works of authorship and inventions, including, but not limited to,
products, goods, know-how, Trade Secrets and Confidential Information, and
any revisions thereof, in any form and in whatever stage of creation or
development, arising out of or resulting from, or in connection with, the
services provided by Employee to the Company under this Agreement
(collectively, the "Property") are works made for hire and shall be the
sole and exclusive property of the Company. Employee agrees to execute,
when and if the need arises in the future, such documents as the Company
may reasonably request for the purpose of effectuating the rights of the
Company herein.
(c) Covenant not to Compete. Employee agrees that during his
employment and for two (2) years after the termination of his employment
with the Company, Employee will not directly or indirectly own, manage,
operate, control, be employed by, participate in or be connected in any
manner with the ownership, management, operation or control of any business
or enterprise located in the Restricted Territory that competes with the
Business of the Company.
(d) Non-Solicitation of Customers. Employee covenants and agrees that
during the term of this Agreement, and for a period of two (2) years
thereafter, he will not on behalf of any person, firm, corporation or
entity solicit business from customers of the Company that Employee had
contact with, solicited, or performed services for during the term that
Employee worked for Company, including actively-sought prospective
customers that Employee had contact with or solicited during the two (2)
year period prior to Employee's termination, for the purpose of providing
or selling products or services that are competitive with those provided by
the Company in connection with the Business of the Company.
(e) Non-Solicitation of Employees. Employee agrees that during his
employment and for two (2) years after the termination of his employment
with the Company, Employee will not solicit or in any manner attempt to
induce employees to leave the Company's employment.
(f) Injunctive Relief. Employee acknowledges and agrees that the
remedy at law for any breach of the provisions of this Section 7 will be
inadequate and that in the event of such breach the Company will suffer
irreparable damage; accordingly, the Company shall be entitled to obtain ex
parte, preliminary, interlocutory, temporary, or permanent injunctive
relief, specific performance and other equitable remedies in any court of
competent jurisdiction to prevent Employee from violating such provision or
provisions or to prevent the continuance of any violation thereof, together
with an award or judgment for any and all damages, losses, liabilities,
expenses and costs incurred by the Company as a result of such breach or
threatened breach including, but not limited to, attorneys' fees incurred
by the Company, its successors or assigns in connection with, or as a
result of, the enforcement of this Agreement. Employment expressly waives
any requirement based on any statute, rule or procedure, or other source,
that the Company post a bond as a condition of obtaining any of the
above-described remedies.
(g) Non-Renewal. Notwithstanding the foregoing, subparagraphs (c),
(d) and (e) shall not apply to Consultant if the Company shall elect to not
extend this Agreement upon expiration of its Term.
8. Miscellaneous.
(a) Severability. Each of the covenants and agreements of Employee
set forth in Section 7 shall be deemed separate and severable, each from
the other, and should any such separate and severable covenant or
agreement, or any part thereof, be declared invalid or unenforceable by a
court of competent jurisdiction from which no appeal is timely taken, such
declaration of invalidity or enforceability shall not in any way affect or
limit the validity or enforceability of any other covenant or agreement, or
part thereof, not also declared invalid or unenforceable, each of which
shall remain binding on Employee in accordance with its respective terms.
Further, if any such covenant or agreement is so declared to be invalid or
unenforceable, Employee shall, as soon as possible, execute a supplemental
agreement with the Company granting to the Company, to the extent legally
permissible, the protection intended to be afforded to the Company by the
covenant or agreement so declared invalid or unenforceable. Failure to
insist upon strict compliance with any provision of this Agreement shall
not be deemed a waiver of such provision or any other provision of this
Agreement.
(b) Waiver of Breach. Failure or delay of either party to insist upon
compliance with any provision hereof shall not operate as, and is not to be
construed as, a waiver or amendment of such provision. Any express waiver
of any provision of this Agreement shall not operate and is not to be
construed as a waiver of any subsequent breach, whether occurring under
similar or dissimilar circumstances.
(c) Notice. All notices and other communications required or
permitted to be given by this Agreement shall be in writing and shall be
given and shall be deemed received upon (i) personal delivery, (ii) three
(3) days after being mailed by first class mail (postage prepaid and return
receipt requested) or (iii) the next business day after being sent by an
overnight delivery service in time for and specifying overnight delivery to
the following addresses:
if to the Company, to: ▇▇▇▇ ▇▇▇▇▇, Inc.
[ADDRESS]
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇
or if to Employee, to: ▇▇▇▇ ▇▇▇▇▇▇▇▇
[ADDRESS]
or at such other address as either party hereto shall notify the other of
in writing.
(d) Entire Agreement. This Agreement contains the entire agreement
and understanding by and between Employee and the Company with respect to
the employment of Employee, and no representations, promises, agreements or
understandings, written or oral, relating to the employment of Employee by
the Company not contained or referenced herein or therein shall be of any
force or effect.
(e) Amendment. This Agreement may be amended at any time by mutual
consent of the parties hereto, with any such amendment to be invalid unless
in writing and signed by the Company and Employee.
(f) Benefit. This Agreement, together with any amendments hereto,
shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors, assigns, heirs and personal
representatives, except that the rights and benefits of either of the
parties under this Agreement may not be assigned without the prior written
consent of the other party.
(g) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Pennsylvania (without regard to
any conflicts of laws provisions of the laws of such state).
(h) Acknowledgement. By signing this Agreement, Employee acknowledges
that the Company has advised Employee of his right to consult with an
attorney prior to executing this Agreement; that he has the right to retain
counsel of his own choosing concerning the agreement to arbitrate or any
waiver of rights or claims; that he has read and fully understands the
terms of this Agreement and/or has had the right to have it reviewed and
approved by counsel of choice, with adequate opportunity and time for such
review; and that he is fully aware of its contents and of its legal effect.
Accordingly, this Agreement shall not be construed against any party on the
grounds that the party drafted this Agreement. Instead, this Agreement
shall be interpreted as though drafted equally by all parties.
(i) Ventures. If Employee, during the term of this Agreement, is
engaged in or associated with the planning or implementing of any project,
program or venture involving Company and any third party or parties, all
rights in the project, program or venture shall belong to Company, and
Employee shall not be entitled to any interest therein or to any
commission, finder's fee or other compensation in connection therewith
other than the salary to be paid to Employee as provided in this Agreement.
(j) Covenant of Good Faith. Employee agrees that the subject of this
Agreement involves sensitive matters which go to the very heart of the
corporate existence and well-being of Company and that it may be difficult
for Company to protect adequately its interest through agreement or
otherwise. Employee agrees to exercise the highest degree of good faith in
his dealings with Company and to refrain from any actions which might
reasonably be deemed to be contrary to its interests.
(k) Subpoenas. If Employee is served with any subpoena or other
compulsory judicial or administrative process calling for production of
Confidential Information and/or Trade Secrets or if Employee is otherwise
required by law or regulation to disclose Confidential Information and/or
Trade Secrets, Employee will immediately, and prior to production or
disclosure, notify Company and provide it with such information as may be
necessary in order that Company may take such action as it deems necessary
to protect its interest.
(l) Post Termination Assistance. Employee agrees that after his
employment with the Company has terminated he will provide, upon reasonable
notice, such information and assistance to the Company as may reasonably be
requested by the Company in connection with any litigation in which the
Company or any of its Affiliates is or may become a party; provided,
however, that the Company agrees to reimburse Employee for any related
expenses, including travel expenses.
(m) Survival of Provisions. Notwithstanding any other provision of
this Agreement, the parties' respective rights and obligations under
Sections 1, 6, 7, and 8 shall survive any termination or expiration of this
Agreement or the termination of Employee's employment for any reason
whatsoever.
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IN WITNESS WHEREOF, the parties have affixed their seals and executed and
delivered this Agreement as of the date first above written.
COMPANY
▇▇▇▇ ▇▇▇▇▇, INC.
Attest: By ____________________________
Name __________________________
Title__________________________
____________________________
Secretary
EMPLOYEE
____________________________ _______________________________
Witness ▇▇▇▇ ▇▇▇▇▇▇▇▇
