1
EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (hereafter referred to as the "Agreement")
is effective as of April 11, 1996 between Unitrend, Inc. an Ohio corporation
(hereafter referred to as "the Company"), and ▇▇▇▇▇▇ ▇.▇. Jelinger (hereafter
referred to as the "Employee").
RECITALS
The Company desires to enter into the following Agreement with Employee
and Employee desires to enter into the following Agreement in accordance with
the terms and conditions set forth below.
AGREEMENTS
In consideration of Employee's continued employment with the Company,
the mutual covenants contained herein, and for other good and valuable
consideration, including the Company's promise to Employee to change certain
terms and conditions of employment with the Employee as reflected in the
attached Exhibit A, receipt of which is acknowledged by the parties, the Company
and Employee agree as follows:
1. TERM OF EMPLOYMENT: This Agreement shall be in effect from the date specified
above, until it is terminated, which may be done by either party at any time, on
14 days written notice to the other party. The Company employs Employee and
Employee accepts employment with the Company for an undefined period of time,
the Employee being known as an "at-will employee." This Agreement shall in no
terms guarantee future employment with the Company. Employee acknowledges that
he or she is an at-will employee, and consequently subject to dismissal or
discipline without cause, at the discretion of the Company. Employee understands
that no representative of the Company, other than the President and/or Chief
Executive Officer, has authority to change the terms of this at-will employment
relationship and that any such change will occur only in a subsequent written
employment contract. During Employee's employment and for an additional three
year period Employee will be bound by the confidentiality provisions found in
Paragraph 10 of this employment Agreement. Employee expressly acknowledges
his/her status as an at-will employee according to the conditions contained in
this Paragraph 1 by initialing the box to the right. Employee
Initials
/s/
CJ
2. NATURE OF EMPLOYMENT:
A. The Company does hire and employ Employee as a(n) Chief
Executive Officer, and Employee does accept and agree to such hiring and
employment. Subject to the supervision and pursuant to the orders, advice, and
directions of the President and/or Chief Executive Officer of the Company or
immediate supervisor of the Employee, Employee shall Act & manage Company assets
in the best interest of the Company and its shareholders as part of Employee's
duties and obligations of the above-named position, and shall perform such other
duties as are customarily performed by one holding such position in other
similar businesses or enterprises as that engaged in by the Company, and shall
also additionally render such other and unrelated services and duties as may be
assigned to Employee from time to time by the President and/or Chief Executive
Officer of the Company.
B. MANNER OF PERFORMANCE OF EMPLOYEE'S DUTIES: Employee agrees to perform, at
all times faithfully, industriously, and to the best of his/her ability,
experience, and talent, all of the duties that may be required of and from
him/her pursuant to the express and implicit terms of this Agreement, to the
reasonable satisfaction of the Company. Such duties shall be rendered at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇, ▇▇▇▇▇▇, ▇▇▇▇ and at such other place or places as the Company
shall in good faith require or as the interests, needs, business, and
opportunities of the Company require or make advisable.
C. PAYMENT AND REIMBURSEMENT: The Company shall pay Employee and Employee agrees
to accept from the Company, in full payment for Employee's services under this
Agreement, compensation at the rate of 125,000.00 dollars per year, payable
weekly during the time this Agreement shall be in force. In addition, the
Company agrees that it will reimburse Employee for any and all necessary,
customary, and usual expenses incurred by him/her while traveling for and on
behalf of the Company pursuant to the Company's directions.
2
3. UNIQUE SERVICES: Employee hereby acknowledges and agrees that the services to
be performed under the terms of this Agreement are of a special, unique,
unusual, extraordinary, and intellectual character that gives them a peculiar
value, the loss of which cannot be reasonably or adequately compensated in
damages in any action at law. Employee, therefore, expressly agrees that the
Company, in addition to any rights or remedies that the Company might possess,
shall be entitled to injunctive and other equitable relief to prevent or remedy
a breach of this Agreement by Employee.
4. INDEMNIFICATION: The Company shall defend Employee against all claims made
against Employee, and it shall indemnify Employee for all losses sustained by
Employee, in direct consequence of the discharge of Employee's duties on the
Company's behalf, including any claim brought against, or any loss sustained by,
Employee in his or her role as an Employee of the Company; provided, that
Employee promptly notifies the Company in writing of any such claim, gives the
Company full authority for the conduct of such defense and participates in and
aides the Company's counsel by giving whatever time, information, expertise, and
assistance is reasonably requested for such defense. Employee agrees to
indemnify and hold the Company and its shareholders, harmless, individually and
collectively, from and against any liabilities, claims, costs, or expenses
(including shareholders) as result of actions by Employee in excess of his or
her authority as set forth herein.
5. EMPLOYEE BENEFITS:
A. VACATION TIME AND SICK LEAVE: Employee shall be entitled to five (5) days of
vacation without loss of compensation after serving for six (6) months with the
Company. After serving for one (1) year with the Company the Employee shall be
entitled to a second five (5) days of vacation without loss of compensation.
After serving for eighteen (18) months with the Company the Employee shall be
entitled to a third five (5) days of vacation without loss of compensation. Upon
serving for two (2) years with the Company and in each successive calendar year
after Employee's two (2) year service date, Employee shall be entitled to
fifteen (15) days of vacation without loss of compensation. Employee shall be
entitled to qualify for one (1) day of sick leave without loss of compensation
for each month served with the Company, up to a maximum of ten (10) days per
calendar year. The length of time served shall begin on the effective date of
employment as set forth below. In the event that Employee takes vacation time or
sick leave in excess of the maximum numbers set forth in this paragraph, the
President and/or Chief Executive Officer shall determine whether or not Employee
shall receive compensation for such excess days. In the event that Employee does
not for any reason take the total amount of vacation time or sick time
authorized during any year, he or she shall be deemed to have waived any
entitlement to vacation time and sick leave for that year. These sick days and
vacation days may not be accumulated, nor may they be sold back to the Company
at the end of any year, or upon termination of employment.
B. EDUCATIONAL EXPENSES: According to the Grade Based Reimbursement Schedule
found below Employee shall be entitled to reimbursement for certain educational
expenses incurred for Job-Related Schooling for which Employee has not otherwise
been compensated. "Job-Related Schooling" is defined as those classes and/or
courses that are taken to further Employee's ability to fulfill his/her duties
as described in Paragraph 2.A. of this Agreement, or as specifically approved in
writing by both the President and Chief Executive Officer of the Company.
Grade-Based Reimbursement Schedule
Grade Received Tuition Reimbursement Books Reimbursement
-------------- --------------------- -------------------
A 100% 100%
B 75% 75%
C 50% 50%
D and below none none
C. ADDITIONAL BENEFITS: Employee shall be entitled to all other employment
benefits made available to other Employees of the Company, commensurate with the
Employee's position and title at the Company and the Employee's work location.
Such benefits shall include the health insurance made available to Employees,
disability insurance made available to Employees, life insurance, pension and
retirement plans as are adopted from time to time by the Company.
3
6. TERMINATION OF THE AGREEMENT: The Employee may be terminated for any or no
reason including but not limited to cause (including deliberate attempts to
injure the Company, neglecting material duties, committing fraudulent or
dishonest actions, or alcohol or illegal drug use while on Company time). The 14
day notice provision contained in Paragraph 1 of this Agreement does not apply
to terminations for cause. Termination for cause shall result in the Employee's
forfeiture of any bonuses, salaries, benefits, or entitlements other than those
required by law or specifically provided under the terms of an applicable
planned document. Payment of any further bonuses or other salaries claimed by
Employee will be in the sole and absolute discretion of the Company and Employee
shall have no entitlement thereto. Termination of this Agreement by any means
will cause Employee to forfeit any unpurchased stock options offered to Employee
by the Company, unless otherwise provided in the terms of the applicable options
offer(s).
7. DISCONTINUANCE OF BUSINESS AS TERMINATION OF EMPLOYMENT:
Notwithstanding anything in this Agreement to the contrary, in the event that
the Company shall discontinue operating its business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇.
▇▇, ▇▇▇▇▇▇, ▇▇▇▇, then this Agreement will terminate as of the last day of the
month in which the Company ceases operations at that location with the same
force and effect as if that day were originally set forth as the termination
date of this Agreement. The 14 day notice provision contained in Paragraph 1 of
this Agreement does not apply to terminations as a result of the Company's
discontinuance of business.
8. OPTION TO TERMINATION CONTRACT FOR PERMANENT DISABILITY OF EMPLOYEE:
Notwithstanding anything in this Agreement to the contrary, the Company has the
option to terminate this Agreement in the event that during its term Employee
shall become Permanently Disabled as defined below. Such option shall be
exercised by the Company giving notice to Employee by registered mail, addressed
to Employee's last known residence, or at such other address as Employee shall
designate in writing, of its intention to terminate this Agreement on the
fourteenth day after such notice is mailed, not including the date of mailing.
On the giving of such notice this Agreement comes to an end with the same force
and effect as if that day were originally set forth as the termination date. For
the purposes of this Agreement, Employee shall be deemed to have become
"Permanently Disabled" if, during any consecutive 12 month period, because of
ill health, physical or mental disability, or for other causes beyond his/her
control, he/she shall have been continuously unable or unwilling or have failed
to perform his/her duties under this contract for 45 consecutive days, or if,
during any consecutive 12 month period, he/she shall have been unable or
unwilling or have failed to perform his/her duties for a total period of 60
days.
9. COMMITMENTS BINDING ON THE COMPANY ONLY ON WRITTEN CONSENT: Anything
contained in this Agreement to the contrary notwithstanding, it is understood
and agreed that Employee shall not have the right to make any contracts or
commitments for or on behalf of the Company without the written consent of the
Company.
10. CONFIDENTIAL INFORMATION: Employee recognizes and acknowledges that in the
course of his/her employment hereunder, and during prior period of employment
with the Company (if any), he/she has occupied and will continue to occupy a
position of trust and confidence. As a consequence, it will be necessary for
Employee to acquire information which could include for example, information in
whole or in part concerning the Company's sales, sales volume, sales methods,
sales proposals, identity of customers and prospective customers, amount or kind
of customer's purchases from the Company, the Company's sources of supply, the
Company's computer programs, system documentation, special hardware, products
hardware, related software development, the Company's manuals, trade secrets,
formulae, processes, methods, machines, compositions, ideas, development
concepts, data and know-how, improvements, inventions or other confidential or
proprietary information belonging to the Company or relating to the Company's
affairs, the Company's manner of operation and/or its plans and strategies,
pricing policies, and all papers, resumes and records (including computer
records) of documents containing information not disclosed by the Company that
was learned by Employee in the course of his/her employment with the Company
(collectively referred to herein as "Confidential Information"). Employee
recognizes and acknowledges that Confidential Information is the Property of the
Company, and that such information is specialized, unique in nature and of great
value to the Company and that such information gives the Company a competitive
advantage. Employee further recognizes and acknowledges that Employee's use,
misappropriation or disclosure of the Confidential Information would constitute
a breach of trust and could cause irreparable injury to the Company.
Additionally, Employee recognizes and acknowledges that it is essential to the
protection to the Company's goodwill and to the maintenance of the Company's
competitive position and that the Confidential Information be kept secret.
Consequently, Employee specifically agrees that Employee will not, except as may
be required to perform his/her duties hereunder or as required by applicable
law, without limitation and time until such information shall have become public
other than by Employee's unauthorized
4
disclosure, disclose the Confidential Information to others, or use the
Confidential Information, whether directly or indirectly to the Employee's own
advantage or the advantage of others.
11. RETURN OF MATERIAL UPON TERMINATION: Employee agrees to deliver or return to
the Company at the Company's request at any time or upon the termination of his
or her employment or as soon thereafter as possible, all equipment/devices
loaned to Employee, all documents, computer tapes and disks, records, lists,
data, drawings, prints, notes and written information (and all copies thereof)
furnished by the Company or prepared by the Employee during the term of his or
her employment with the Company, or concerning the Company or the Company's
customers, potential customers, suppliers and contractors, or constituting
Confidential Information.
12. NOTICES: Any notices to be given hereunder by either party to the other
shall be in writing and may be transmitted by personal delivery or by certified
mail, return receipt requested. Mailed notices shall be addressed to the parties
as follows:
If notice is to the Company, to:
Unitrend, Inc.
Attn.: Chief Executive Officer
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇.▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Copy:
Unitrend, Inc. Corporate Counsel
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇.▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If notice is to Employee to:
▇▇▇▇▇▇ ▇.▇. Jelinger(name)
(withheld) (address)
(withheld) (address)
Either party may change its address by written notice in accordance
with this section. Notices delivered personally shall be deemed communicated as
of the dates of actual receipt; mailed notices shall be deemed communicated as
of forty-eight hours after the date of mailing.
13. ATTORNEY'S FEES AND COSTS: If either party fails to perform its respective
obligations under this Agreement, and the other party is thereby required to
incur attorney's fees or other fees or costs, including but not limited to the
costs of arbitration, the party so incurring such fees and costs shall be
entitled to the payment of those fees and costs by the breaching party.
14. ENTIRE AGREEMENT: This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee by the Company and contains all of the covenants and
agreements between the parties with respect to that employment in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements either oral or written have been made by
any party, or anyone acting on behalf of any party, which are not embodied
herein, and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding on either party.
15. MODIFICATIONS: Any modifications of this Agreement shall be effective only
if it is in writing and signed by both parties.
16. EFFECT OF WAIVER: The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this Agreement by the other
party shall not be deemed a waiver of that term, covenant, or condition, nor
shall any waiver or relinquishment of any right or power at any one time or
times be deemed a waiver or relinquishment of that right or power for all or any
other times.
5
17. PARTIAL INVALIDITY: If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force without being impaired or
invalidated in any way unless such partial invalidity materially affects the
intent of the parties.
18. GOVERNING LAW: This Agreement shall be governed and construed in accordance
with the laws of the State of Ohio.
19. ASSIGNABILITY: The rights and duties of either party hereunder shall not be
assignable by either party except if this Agreement and all rights and
obligations hereunder may be assigned by the Company to, and be assumed by, any
corporation or other business entity which succeeds to all or substantially all
of the assets and business of the Company through merger, consolidation,
acquisition of assets, or other corporate reorganization.
20. SURVIVAL: The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment irrespective of any investigation made by or on behalf
of any party.
21. ADVICE OF COUNSEL: Employee understands the nature of and the burdens
imposed by the restrictive covenants contained in this Agreement. Employee has
independently consulted with his/her counsel, or has had ample opportunity to
consult with legal counsel of his/her choice, and after such consultation or
opportunity for consultation represents and agrees that such covenanted are
reasonable, enforceable, and proper in duration, scope, and effect.
22. HEADINGS: The captions in this Agreement are for the convenience of the
parties, and have no force or effect.
23. RESTRICTIVE COVENANTS: Employee represents and warrants that his/her
experience and capabilities are such that the restrictive covenants set forth
herein will not prevent him/her from earning his/her livelihood and that
Employee will be fully able to earn an adequate livelihood for himself/herself
and his/her dependents if any of such provisions should be specifically enforced
against Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of this day and year first above written.
Unitrend, Inc.,
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Corporate Counsel
----------------------------
Employee: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
-------------------------
Printed name: ▇▇▇▇▇▇ ▇.▇. Jelinger
--------------------
Address: (withheld)
----------
Effective date: April 11, 1996
--------------
Signing date: January 3, 1997
---------------
ATTESTATION BY EMPLOYEE
I, ▇▇▇▇▇▇ ▇. ▇. Jelinger, do hereby attest and certify that I have read the
above Agreement and that I have been advised that due to the nature of the above
Agreement, I should seek legal counsel prior to executing such Agreement. I have
(have not) sought such legal counsel and understand that the above Agreement
restricts my rights and activities with
6
regard to my future work and/or employment possibilities and that the Agreement
contains various duties and obligations of mine with regard to Unitrend, Inc.
Signed: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
Dated: January 3, 1997
EXHIBIT A
Changed Circumstances of Employment
A $12,500.00 raise in pay on June 30, 1997 which monies are an increase in pay
over and above an annual raise. By signing below, Employee represents and
acknowledges that he/she understand that a portion of said pay raise is
nonexclusive as consideration for this agreement, and such portion will be
utilized as consideration in one or more other separate agreements between
Employee and the Company.
Signed: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
Dated: 1-3-97
NON-COMPETE AGREEMENT
This Non-Compete Agreement (hereafter referred to as the "Agreement")
is effective as of April 11, 1996 between Unitrend, Inc. an Ohio corporation
(hereafter referred to as "the Company"), and ▇▇▇▇▇▇ ▇.▇. Jelinger (hereafter
referred to as the "Employee").
RECITALS
The Company desires to enter into the following Agreement with Employee
and Employee desires to enter into the Following Agreement in accordance with
the terms and conditions set forth below.
AGREEMENTS
In consideration of Employee's continued employment with the Company,
the mutual covenants contained herein, and for other good and valuable
consideration, including the Company's promise to Employee to change certain
terms and conditions of employment with the Employee as reflected in the
attached Exhibit A, receipt of which is acknowledged by the parties, the Company
and Employee agree as follows:
1. NON-COMPETITION: By signing this Agreement Employee agrees that:
A. DEFINED TERMS: The principal business of the Company is the development,
design and marketing of hardware and software for the computer industry,
particularly for computer enclosures and related accessories, including but not
limited to office furniture. The region serviced by the Company is a geographic
area that will include the United States of America and the European and Asian
continents (hereafter referred to as the "Region"). Employee acknowledges that
Employee's employment with the Company will bring Employee into close contact
with the members and other customers of the Company and with the trade secrets
and other confidential affairs of the Company. Employee has not previously been
employed in the computer industry and will derive substantial information
concerning the computer industry, key customers, technology and opportunities or
related businesses as a result of his or her employment by the Company and at
the expense of the Company. The Company has a significant interest in protecting
its proprietary interests in and goodwill associated with the foregoing. The
term "Restrictive Period" means the period of three (3)
7
years following the termination of Employee's employment with the Company
(whether for cause, or upon any or no reason).
B. PERIOD OF EMPLOYMENT: During the term of Employee's employment hereunder,
Employee shall not directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stock holder, corporate officer,
director, or any other individual representative capacity, engage or participate
in or acquire, hold, or retain any interest in any business which is competitive
with the business of the Company (as defined above) in any location, or its
shareholders or any business selling or doing business with the Company, unless
such participation or interest is fully disclosed to the Company and approved by
a majority of the Company's Board of Directors. Notwithstanding the foregoing,
Employee may acquire, hold or retain equity ownership of any publicly held
Company, provided that such equity ownership does not exceed five percent (5%)
of the issued and outstanding shares of the voting stock for such Company.
C. RESTRICTIVE PERIOD: During the Restrictive Period, unless the Company and
Employee shall otherwise agree in writing, Employee shall not: (i) compete
directly with the Company in the Region; (ii) enter into the employ of or render
any services to, as an independent contractor or otherwise, any person or entity
engaged in the business (or any aspect thereof) in competition with the Company
in the Region; (iii) become interested, as an individual, partner, co-venturer,
shareholder, officer, director, employee, principal, agent, trustee, or in any
other relationship or capacity, in any person or entity engaged in the business
(or any aspect thereof) in competition with the Company in the Region; or (iv)
on his or her own behalf or on behalf of or as an employee or agent of any other
person or business, contact or approach any person or business wherever located
with a view to selling or assisting others to sell products or services
substantially competing with the business of the Company.
D. ENFORCEABILITY: If any portion of Paragraph 1 of this Agreement is held to be
illegal, unenforceable, void, or voidable, the remainder shall remain in full
force and effect and such portion shall be deemed altered and amended to the
minimum extents necessary to bring it within the legal requirements of
enforceability.
2. UNIQUE SERVICES: Employee hereby acknowledges and agrees that the services to
be performed under the terms of this Agreement are of a special, unique,
unusual, extraordinary, and intellectual character that gives them a peculiar
value, the loss of which cannot be reasonably or adequately compensated in
damages in any action at law. Employee, therefore, expressly agrees that the
Company, in addition to any rights or remedies that the Company might possess,
shall be entitled to injunctive and other equitable relief to prevent or remedy
a breach of this Agreement by Employee.
3. LIQUIDATED DAMAGES UPON VIOLATION: Employee agrees that, in the event of
violation by Employee of this Agreement, Employee will pay as liquidated damages
to the Company the sum of 500.00 dollars per day, for each day or part thereof
that Employee continues to break the Agreement. It is recognized and agreed that
damages in such event are difficult to ascertain, though great and irreparable,
and that this Agreement with respect to liquidated damages shall in no event
prevent the Company from obtaining injunctive relief as specified in Paragraph 2
of this Agreement.
4. NOTICES: Any notices to be given hereunder by either party to the other shall
be in writing and may be transmitted by personal delivery or by certified mail,
return receipt requested. Mailed notices shall be addressed to the parties as
follows:
If notice is to the Company, to:
Unitrend, Inc.
Attn.: Chief Executive Officer
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇.▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Copy:
Unitrend, Inc. Corporate Counsel
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇.▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If notice is to Employee to:
8
▇▇▇▇▇▇ ▇.▇. Jelinger (name)
(withheld) (address)
(withheld) (address)
Either party may change its address by written notice in accordance
with this section. Notices delivered personally shall be deemed communicated as
of the dates of actual receipt; mailed notices shall be deemed communicated as
of forty-eight hours after the date of mailing.
5. ATTORNEY'S FEES AND COSTS: If either party fails to perform its respective
obligations under this Agreement, and the other party is thereby required to
incur attorney's fees or other fees or costs, including but not limited to the
costs of arbitration, the party so incurring such fees and costs shall be
entitled to the payment of those fees and costs by the breaching party.
6. ENTIRE AGREEMENT: This Agreement supersedes any and all other agreements
against competition, either oral or in writing, between the Employee and the
Company and contains all of the covenants and agreements between the parties
with respect to that noncompetition in any manner whatsoever. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements either oral or written have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise regarding non-competition or against
competition not contained in this Agreement shall be valid or binding on either
party.
7. MODIFICATIONS: Any modifications of this Agreement shall be effective only if
it is in writing and signed by both parties, unless such modifications are
imposed by a court of competent jurisdiction in relation to a dispute between
the Company and the Employee, as provided-for in Paragraph 1.D. of this
Agreement.
8. EFFECT OF WAIVER: The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this Agreement by the other
party shall not be deemed a waiver of that term, covenant, or condition, nor
shall any waiver or relinquishment of any right or power at any one time or
times be deemed a waiver or relinquishment of that right or power for all or any
other times.
9. PARTIAL INVALIDITY: If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force without being impaired or
invalidated in any way unless such partial invalidity materially affects the
intent of the parties.
10. GOVERNING LAW: This Agreement shall be governed and construed in accordance
with the laws of the State of Ohio.
11. ASSIGNABILITY: The rights and duties of either party hereunder shall not be
assignable by either party except if this Agreement and all rights and
obligations hereunder may be assigned by the Company to, and be assumed by, any
corporation or other business entity which succeeds to all or substantially all
of the assets and business of the Company through merger, consolidation,
acquisition of assets, or other corporate reorganization.
12. SURVIVAL: The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment irrespective of any investigation made by or on behalf
of any party.
13. TOLLING PERIOD: The Restrictive Period described in Paragraphs 1.A. and 1.C.
of this Agreement shall not run during the time in which the Employee is in
violation of this Agreement.
14. ADVICE OF COUNSEL: Employee understands the nature of and the burdens
imposed by the restrictive covenants contained in this Agreement. Employee has
independently consulted with his/her counsel, or has had ample opportunity to
consult with legal counsel of his/her choice, and after such consultation or
opportunity for consultation represents and agrees that such covenants are
reasonable, enforceable, and proper in duration, scope, and effect.
15. HEADINGS: The captions in this Agreement are for the convenience of the
parties, and have no force or effect
9
16. NO DEFENSE: A claim by Employee against the Company shall not constitute a
defense to the Company's enforcement of the restrictions contained in this
Agreement.
17. ANTI-SOLICITATION: Employee agrees that in addition to any other limitation,
for a period of three (3) years after the termination of his/her employment with
the Company, except a termination caused by the Company in violation of the
terms of the Employment Agreement, and unless otherwise specified, he/she will
not, on behalf of himself/herself or on behalf of any other person, firm,
corporation, business or entity, call on any of the customers or employees of
the Company, or any of its affiliates, subsidiaries or trade partners for the
purpose of soliciting any of the entities described above into joining with the
Employee or another, transacting business with the Employee or another for any
service or product that competes with the principal business of the Company, as
defined above. Further, Employee agrees that he/she will in no way, directly or
indirectly, for himself/herself, or on behalf of any other person, firm,
corporation, business or entity solicit, divert or take away customers and/or
employees of the Company, its affiliates, subsidiaries, or trade partners.
18. ADMISSIONS OF EMPLOYEE: By initialing the box to the right and by signing Employee
this Agreement, Employee expressly recognizes and acknowledges: Initials
A. ADMISSION OF NEED: The Company has great need in protecting /s/
its proprietary interests in and goodwill associated with the business of the CJ
Company, as defined above; and
B. ADMISSION OF REASONABLENESS: The definitions and
restrictive provisions contained herein, and particularly those found in
Paragraph 1 of this Agreement are reasonable and acceptable to the Employee,
including those provisions relating to time and geographic restrictions.
19. RESTRICTIVE COVENANTS: Employee represents and warrants that his/her
experience and capabilities are such that the restrictive covenants set forth
herein will not prevent him/her from earning his/her livelihood and that
Employee will be fully able to earn an adequate livelihood for himself/herself
and his/her dependents if any of such provisions should be specifically enforced
against Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of this day and year first above written.
Unitrend, Inc.,
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Corporate Counsel
----------------------------
Employee: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
-------------------------
Printed name: ▇▇▇▇▇▇ ▇.▇. Jelinger
---------------------
Address: (withheld)
----------
Effective date: April 11, 1996
--------------
Signing date: January 3, 1997
---------------
ATTESTATION BY EMPLOYEE
I, ▇▇▇▇▇▇ ▇.▇. Jelinger, do hereby attest and certify that I have read the above
Agreement and that I have been advised that due to the nature of the above
Agreement, I should seek legal counsel prior to executing such Agreement. I have
(have not) sought such legal counsel and understand that the above Agreement
restricts my rights and activities with
10
regard to my future work and/or employment possibilities and that the Agreement
contains various duties and obligations of mine with regard to Unitrend, Inc.
Signed: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
Dated: January 3, 1997
EXHIBIT A
Changed Circumstances of Employment
A $12,500.00 raise in pay on June 30, 1997 which monies are an increase in pay
over and above an annual raise. By signing below, Employee represents and
acknowledges that he/she understand that a portion of said pay raise is
nonexclusive as consideration for this agreement, and such portion will be
utilized as consideration in one or more other separate agreements between
Employee and the Company.
Signed: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
Dated: January 3, 1997
TRADE SECRETS AGREEMENT
This Trade Secrets Agreement (hereafter referred to as the "Agreement")
is effective as of April 11, 1996 between Unitrend, Inc. an Ohio corporation
(hereafter referred to as "the Company"), and ▇▇▇▇▇▇ ▇.▇. Jelinger (hereafter
referred to as "Employee").
RECITALS
The Company desires to enter into the following Agreement with Employee
and Employee desires to enter into the Following Agreement in accordance with
the terms and conditions set forth below.
AGREEMENTS
In consideration of Employee's continued employment with the Company,
the mutual covenants contained herein, and for other good and valuable
consideration, including the Company's promise to Employee to change certain
terms and conditions of employment with the Employee as reflected in the
attached Exhibit A, receipt of which is acknowledged by the parties, the Company
and Employee agree as follows:
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS:
A. DEFINITION OF "INVENTIONS": As used herein the term "Inventions" shall mean
all inventions, discoveries, improvements, formulas, trade secrets, techniques,
methods, data and know-how, programs, systems, specifications, documentation,
algorithms, flow charts, logic diagrams, source codes, processes, and other
information, including works-in-progress, whether or not the subject of patent,
trademark, copyright, trade secrets, or masked work protection,
11
and whether or not reduced to practice by Employee, either alone or jointly with
others, during the period of employment with the Company and for one year
following the termination of Employee's employment with the Company which (i)
relate to the actual or anticipated business, activities, research, or
investigations of the Company, or (ii) result from or are suggested by work
performed by Employee for the Company (whether or not made or conceived during
normal working hours or on the premises of the Company), or (iii) which result,
to any extent, from the use of the Company's premises or property.
B. WORK FOR HIRE: Employee expressly acknowledges all copyrightable aspects of
the Inventions are to be considered "works made for hire" within the meeting of
the Copyright Act of 1976, as amended (the "Act"), and that the Company is to be
"Author" within the meaning of such Act for all purposes. All such copyrightable
works, as well as all copies of such works and whatever medium fixed or
embodied, shall be owned exclusively by the Company as its creation. Employee
hereby expressly disclaims any and all interests in any of such copyrightable
works and waives any right of droit morale or similar rights.
C. ASSIGNMENT: Employee acknowledges and agrees that all Inventions constitute
trade secrets of the Company or the member of the Company, as applicable and
shall be the sole property of the Company, as applicable or any other entity
designated by the Company. In the event that title to any or all the Inventions
or any part or element thereof may not by operation of law vest in the Company,
as applicable, or such Inventions may be found as a matter of law not to be
"works made for hire" within the meaning of the Act, Employee hereby conveys and
irrevocably assigns to the Company, as applicable, without further
consideration, all his or her right, title, and interest, throughout the
universe and in perpetuity, in all Inventions and all copies of them, in
whatever medium fixed or embodied, and in all written records, graphics,
diagrams, notes, or reports relating thereto in Employee's possession or under
his or her control, including, with respect to any of the foregoing copyright,
patent, trademark, trade secrets, masked work, and any all other proprietary
rights therein, the right to modify and create derivative works, the right to
invoke the benefit of any priority under any international convention and all
rights to register and renew same.
D. PROPRIETARY NOTICES; NO FILINGS; WAIVER OR MORAL RIGHTS: Employee
acknowledges that all Inventions shall, at the sole option of the Company, bear
the Company's patent, copyright, trademark, trade secret, and masked work
notices. Employee agrees not to file any patent, copyright, or trademark
applications relating to any Invention, except with prior written consent of an
authorized representative of the Company. Employee hereby expressly disclaims
any and all interest in any Inventions and waives any right of droit morale or
similar rights, such as rights of integrity or the right to be attributed as the
creator of the Invention.
E. FURTHER ASSURANCES: Employee agrees to promptly assist the Company, or any
party designated by the Company, at the Company's request, whether before or
after the termination of employment, however such termination may occur, in
perfecting, registering, maintaining and enforcing, in any jurisdiction, the
Company's rights in the Inventions by performing all acts and executing all
documents and instruments deemed necessary or convenient by the Company,
including by way of illustration and not limitation: (i) executing assignments,
applications, and other documents and instruments in connection with obtaining
patents, copyrights, trademarks, masked works, or other proprietary protections
for the Inventions; and confirming the assignment to the Company of all right,
title, and interest in the Inventions or otherwise establishing the Company's
exclusive ownership rights therein; (ii) cooperating in the prosecution of
patent, copyright, trademark, and masked work applications, as well as in the
enforcement of the Company's rights in the Inventions, including, but not
limited to testifying in court or before any patent, copyright, trademark, or
masked work registry office, or any other administrative body. Employee will be
reimbursed for all out-of-pocket costs incurred in connection with the foregoing
if such assistance is requested by the Company after the termination of
employment. In addition, to the extent that after the termination of employment
for whatever reason Employee's technical expertise shall be required in
connection with the fulfillment of the aforementioned obligations, the Company
will compensate Employee at a reasonable rate for the time actually spent by
Employee at the Company's request for rendering such assistance.
F. POWER OF ATTORNEY: Employee hereby irrevocably appoints the Company to be his
or her attorney in fact and thereby expressly authorizes the Company in his or
her name and on his or her behalf to execute any document, undertake any action
and generally to use his or her name for the purpose of giving to the Company
the full benefit of the assignment provisions set forth above.
12
G. CONSENT TO USE OF NAME: The company reserves the right (but shall not have
the obligation) to publicize Employee's name and background in connection with
the marketing of Inventions or the enforcement of the Company's rights therein.
Employee is responsible for supplying to the Company his or her resume or
curriculum vitae for such purposes. Employee agrees that the Company shall have
the sole control over the type style, type size, or the placement of his or her
name on any materials, and over the final content of any biography used in set
material.
H. DISCLOSURE OF INVENTIONS: Employee will make full and prompt disclosure to
the Company of all Inventions subject to assignment to the Company pursuant to
Paragraph 1.C. of this Agreement and all information relating thereto in
Employee's possession or under his or her control as to possible applications
and use thereof.
I. NO VIOLATION OF THIRD PARTY RIGHTS: Employee represents, warrants and
covenants that he or she (i) will not in the course of employment, infringe upon
or violate any proprietary rights of any third parties (including, without
limitations, any third party confidential relationships, patents, copyrights,
masked works, trade secrets, or other proprietary rights); (ii) is not a party
to any conflicting agreements with third parties which will prevent him or her
from fulfilling these terms of employment and the obligations of this Agreement;
(iii) does not have in his or her possession any confidential or proprietary
information or documents belonging to others and will not disclose to the
Company, use or induce the Company to use, any confidential or proprietary
information or documents of others; (iv) agrees to respect any and all valid
obligations which he or she may now have to prior employers or to others related
to confidential information, Inventions, or discoveries which are the property
of those prior employers or others as the case may be. Employee has supplied or
shall promptly supply to the Company a copy of each written agreement to which
Employee is subject (other than any agreement to which the Company is a party)
which includes any obligation of confidentiality, assignment of Inventions, or
non-competition. Employee agrees to indemnify and save harmless the Company from
any loss, claim, damage, costs, or expenses of any kind (including without
limitation, reasonable attorney's fees) to which the Company may be subjected by
virtue of a breach by Employee of the foregoing representations, warranties and
covenants.
J. OBLIGATIONS UPON TERMINATION: In the event of the termination of his or her
employment for whatever reason, Employee will promptly (i) deliver to the
Company all his or her physical property, (including but not limited to disks,
documents, notes, printouts, and all copies thereof) and other materials in
Employee's possession or under Employee's control pertaining to business of the
Company, including but not limited to, those embodying or relating to the
Inventions and the confidential information as outlined above; (ii) deliver to
the Company's Legal Counsel or other person designated by the Company all
notebooks and other data relating to research or experiments or other work
conducted by Employee in the scope of employment or any Inventions made,
created, conceived, authored, or reduced to practice by Employee, either alone
or jointly with others; and (iii) make full disclosure relating to any
Inventions. If Employee would like to keep certain property such as material
relating to professional societies or other non-confidential material upon the
termination of employment with the Company, he/she agrees to discuss such issues
with the Company. Where such a request does not put the Company at risk or is
not confidential information of the Company, the Company will customarily grant
the request. Upon termination of employment with the Company, Employee's
obligations under this section shall survive and the Employee shall, if
requested by the Company, reaffirm Employee's recognition of the importance of
maintaining the confidentiality of the Company's confidential information and
reaffirm all of the Employee's obligations set forth in this section.
2. NOTICES: Any notices to be given hereunder by either party to the other shall
be in writing and may be transmitted by personal delivery or by certified mail,
return receipt requested. Mailed notices shall be addressed to the parties as
follows:
If notice is to the Company, to:
Unitrend, Inc.
Attn.: Chief Executive Officer
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Copy:
Unitrend, Inc. Corporate Counsel
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
13
If notice is to Employee, to:
▇▇▇▇▇▇ ▇.▇. Jelinger (name)
(withheld) (address)
(withheld) (address)
Either party may change its address by written notice in accordance with this
section. Notices delivered personally shall be deemed communicated as of the
dates of actual receipt; mailed notices shall be deemed communicated as of
forty-eight hours after the date of mailing.
3. ATTORNEY'S FEES AND COSTS: If either party fails to perform its respective
obligations under this Agreement, and the other party is thereby required to
incur attorney's fees or other fees or costs, including but not limited to the
costs of arbitration, the party so incurring such fees and costs shall be
entitled to the payment of those fees and costs by the breaching party.
4. ENTIRE AGREEMENT: This Agreement supersedes any and all other trade secrets
agreements, either oral or in writing, between the Employee and the Company and
contains all of the covenants and agreements between the parties with respect to
trade secrets and Inventions in any manner whatsoever. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements either oral or written have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise as pertaining to trade secrets or Inventions
not contained in this Agreement shall be valid or binding on either party.
5. MODIFICATIONS: Any modifications of this Agreement shall be effective only if
they are in writing and signed by both parties.
6. EFFECT OF WAIVER: The failure of either party to insist on strict compliance
with any of the terms, covenants, or conditions of this Agreement by the other
party shall not be deemed a waiver of that term, covenant, or condition, nor
shall any waiver or relinquishment of any right or power at any one time or
times be deemed a waiver or relinquishment of that right or power for all or any
other times.
7. PARTIAL INVALIDITY: If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force without being impaired or
invalidated in any way unless such partial invalidity materially affects the
intent of the parties.
8. GOVERNING LAW: This Agreement shall be governed and construed in accordance
with the laws of the State of Ohio.
9. ASSIGNABILITY: The rights and duties of either party hereunder shall not be
assignable by either party except if this Agreement and all rights and
obligations hereunder may be assigned by the Company to, and be assumed by, any
corporations or other business entity which succeeds to all or substantially all
of the assets and business of the Company through merger, consolidation,
acquisition of assets, or other corporate reorganization.
10. SURVIVAL: The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment irrespective of any investigation made by or on behalf
of any party.
11. TOLLING PERIOD: The restrictive periods described herein shall not run
during the time in which the Employee is in violation of this Agreement.
12. ADVICE OF COUNSEL: Employee understands the nature of and the burdens
imposed by the restrictive covenants contained in this Agreement. Employee has
independently consulted with his/her counsel, or has had ample opportunity to
consult with legal counsel of his/her choice, and after such consultation or
opportunity for consultation represents and agrees that such covenants are
reasonable, enforceable, and proper in duration, scope, and effect.
14
13. HEADINGS: The captions in this Agreement are for the convenience of the
parties, and have no force or effect.
14. NO DEFENSE: A claim by Employee against the Company shall not constitute a
defense to the Company's enforcement of the restrictions contained in this
Agreement.
15. RESTRICTIVE COVENANTS: Employee represents and warrants that his/her
experience and capabilities are such that the restrictive covenants set forth
herein will not prevent him/her from earning his/her livelihood and that
Employee will be fully able to earn an adequate livelihood for himself/herself
and his/her dependents if any of such provisions should be specifically enforced
against Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of this day and year first above written.
Unitrend, Inc.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Corporate Counsel
----------------------------
Employee: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
-------------------------
Printed name: ▇▇▇▇▇▇ ▇.▇. Jelinger
--------------------
Address: (withheld)
----------
Effective date: April 11, 1996
--------------
Signing date: January 3, 1997
---------------
ATTESTATION BY EMPLOYEE
I, ▇▇▇▇▇▇ ▇.▇. Jelinger, do hereby attest and certify that I have read the above
Agreement and that I have been advised that due to the nature of the above
Agreement, I should seek legal counsel prior to executing such Agreement. I have
(have not) sought such legal counsel and understand that the above Agreement
restricts my rights and activities with regard to my future work and/or
employment possibilities and that the Agreement contains various duties and
obligations of mine with regard to Unitrend, Inc.
Signed: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
Dated: January 3, 1997
EXHIBIT A
Changed Circumstances of Employment
A $12,500.00 raise in pay on June 30, 1997 which monies are an increase in pay
over and above an annual raise. By signing below, Employee represents and
acknowledges that he/she understand that a portion of said pay raise is
nonexclusive as consideration for this agreement, and such portion will be
utilized as consideration in one or more other separate agreements between
Employee and the Company.
Signed: /S/ ▇▇▇▇▇▇ ▇.▇. Jelinger
Dated: January 3, 1997