CONFORMED COPY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-KSB/A
Amendment No. 1 to
Form 10-KSB
ANNUAL REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1999 Commission File Number 0-4728
Arrow-Magnolia International, Inc.
(Name of Small Business Issuer in its Charter)
Texas 75-0408335
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2646 Rodney Lane, Dallas, Texas 75229
(Address of principal executive offices) (Zip Code)
Issuer's telephone number, including area code: (972) 247-7111
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.10 per share
Check whether the issuer: (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the issuer was required
to file such reports) and (2) has been subject to such filing requirements
for the past 90 days.
Yes ( x ) No ( )
Check if no disclosure of delinquent filers pursuant to Item 405 of
Regulation S-B is contained herein, and no disclosure will be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment of this Form 10-KSB. ( )
Issuer's revenues for the fiscal year ended December 31, 1999 were:
$14,001,716
The aggregate market value of the registrant's voting stock held by
non-affiliates as of December 31, 1999 was: $3,321,927
(*see note on index page).
The number of shares outstanding of each class of registrant's common stock
as of December 31, 1999 was: Common Stock, par value $0.10 per share,
3,248,566 shares.
___________________
Documents Incorporated by Reference
Portions of the registrant's definitive proxy statement to be furnished to
stockholders in connection with its Annual Meeting of Stockholders to be held
on May 24, 2000 are incorporated by reference in Part III of this Form 10-KSB.
Transitional Small Business Disclosure Format: Yes No X
<PAGE>
Item 13 and the Index to Exhibits are amended as follows and
Exhibits 10.23, 10.24 and 10.25 are added as set forth below:
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
No. Exhibit
3.1 Articles of Incorporation, as amended, of Arrow-Magnolia
International, Inc. (1).
3.2 Bylaws of Arrow-Magnolia International, Inc.
10.19 Arrow-Magnolia International, Inc. Amended and
Restated Non-Qualified Stock Option Plan (2).
10.20 Credit Loan Agreement dated August 5, 1994 between
Arrow-Magnolia International, Inc. and Chase Bank of Texas (2).
10.21 Extension and Modification Agreement dated August
18, 1994 between Arrow-Magnolia International, Inc. and Chase Bank
of Texas (2).
10.22 1998 Stock Bonus Plan (3).
10.23 Executive Employment Agreement dated March 1, 1999 between Morris
Shwiff and Arrow-Magnolia International, Inc.
10.24 Executive Employment Agreement dated March 1, 1999 between Mark
Kenner and Arrow-Magnolia International, Inc.
10.25 Executive Employment Agreement dated March 1, 1999 between Fred
Kenner and Arrow-Magnolia International, Inc.
23.1 Consent of Independent Auditors.
23.2 Consent of Independent Auditors.
- ------------
(1) Filed as Exhibit 3.1 to Arrow-Magnolia International, Inc.
Form 10-K for the fiscal year ended December 31, 1988 and
incorporated herein by reference. .
(2) Filed as Exhibits 10.19, 10.20 and 10.21 to Arrow-Magnolia
International, Inc. Form 10-KSB for the fiscal year ended December
31, 1994 and incorporated herein by reference.
(3) Filed as Exhibit 10.19 to Arrow-Magnolia International, Inc.
Form S-8 Registration Statement No. 333-47709 filed on March 10,
1998 and incorporated herein by reference.
<PAGE>
INDEX TO EXHIBITS
Number Exhibit Page
3.1 Articles of Incorporation, as amended, of Arrow-Magnolia
International, Inc. (1).
3.2 Bylaws of Arrow-Magnolia International, Inc.
10.19 Arrow-Magnolia International, Inc. Amended and Restated
Non-Qualified Stock Option Plan (2).
10.20 Credit Loan Agreement dated August 5, 1994 between
Arrow-Magnolia International, Inc. and Chase Bank of Texas (2).
10.21 Extension and Modification Agreement dated August 18, 1994 between
Arrow-Magnolia International, Inc. and Chase Bank of Texas (2).
10.22 1998 Stock Bonus Plan (3).
10.23 Executive Employment Agreement dated March 1, 1999 between Morris
Shwiff and Arrow-Magnolia International, Inc.
10.24 Executive Employment Agreement dated March 1, 1999 between Mark
Kenner and Arrow-Magnolia International, Inc.
10.25 Executive Employment Agreement dated March 1, 1999 between Fred
Kenner and Arrow-Magnolia International, Inc.
23.1 Consent of Independent Auditors.
23.2 Consent of Independent Auditors.
- ------------
(1) Filed as Exhibit 3.1 to Arrow-Magnolia International, Inc.
Form 10-K for the fiscal year ended December 31, 1988 and
incorporated herein by reference.
(2) Filed as Exhibits 10.19, 10.20 and 10.21 to Arrow-Magnolia
International, Inc. Form 10-K for the fiscal year ended December
31, 1994 and incorporated herein by reference.
(3) Filed as Exhibit 10.19 to Arrow-Magnolia International, Inc.
Form S-8 Registration Statement No. 333-47709 filed on March 10,
1998 and incorporated herein by reference.
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of The Securities Exchange Act of
1934,the registrant caused this report to be signed on its behalf by the
undersigned, thereunder duly authorized.
ARROW-MAGNOLIA INTERNATIONAL, INC.
By: /s/ Christopher M. Hewitt
Christopher M. Hewitt, Assistant Secretary
Dated: May 1, 2000
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement")
effective the 1st day of March, 1999, by and between ARROW-
MAGNOLIA INTERNATIONAL, INC., a Texas corporation, with principal
executive offices at 2646 Rodney Lane, Dallas Texas 75229
(hereinafter referred to as the "Company") and MORRIS SHWIFF, an
individual residing at 2646 Rodney Lane, Dallas Texas 75229,
(hereinafter referred to as "Executive");
W I T N E S S E T H:
WHEREAS, Executive wishes to continue to be employed by the
Company, and Executive and the Company desire to enter into an
agreement relating to such employment;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, it is agreed as follows:
1. Employment. The Company employs Executive, and
Executive accepts employment by the Company, subject to the terms
and conditions set forth herein.
2. Term. Subject to the provisions hereof, the term of
Executive's employment by the Company under this Agreement shall
be for a period of three (3) years commencing on the date hereof;
provided, however, that at the end of each year of employment, the
term of employment shall be extended for an additional one-year
period unless, on or prior to the date six (6) months prior to the
end of such year of employment, the Company shall give written
notice to Executive or Executive shall give written notice to the
Company of an intention to terminate this Agreement, in which
event the term of employment shall comprise only the remaining two
years and six months of the then existing term of employment. The
term of Executive's employment hereunder, including any
continuation or extension of the original term, is hereinafter
referred to as the "Employment Period."
3. Position and Duties. During the Employment Period,
Executive shall serve as Chairman of the Board of the Company,
with such assignments, powers and duties as are assigned or
delegated to him by the Board of Directors of the Company. Such
assignments, powers and duties may, from time to time, be modified
by the Company, as needs may require. Executive shall also, at
the request of the Company, perform similar services for any
Affiliate (as hereinafter defined) of the Company without
additional compensation. Executive agrees to devote substantially
all of his time, skill, attention and energy to the business
affairs of the Company and its Affiliates to advance the best
interests of the Company and its Affiliates and shall not hold any
other salaried position during the Employment Period.
Nothing contained herein shall be construed to prevent
Executive from investing his assets in any form or manner or from
serving on the Boards of other corporations or charitable
organizations or holding uncompensated positions with
professional, academic or industry organizations, provided such
investments and activities do not unreasonably interfere with
Executive's performance of services on behalf of Company
hereunder. As used in this Agreement, the term "Affiliate" of the
Company means any person or corporation that, directly or
indirectly through one or more intermediaries, is controlled by
the Company.
4. Compensation.
(a) For all services rendered by Executive to the Company
during the Employment Period, the Company shall initially pay
Executive a salary at the rate of One Hundred Sixty-One Thousand
Two Hundred Dollars ($161,200.00) per year, payable, subject to
such withholding as may be required by law, in installments in
accordance with the Company's customary payroll practices.
(b) Effective January 1 of each calendar year during the
Employment Period, Executive shall receive an increase in salary
of at least 6% from his salary for the prior calendar year.
(c) Executive shall also be entitled to receive quarterly
bonuses payable forty-five days after the end of each fiscal
quarter of the Company equal to that percentage of the Company's
net earnings specified below based upon the amount of net earnings
for the fiscal quarter then ended (prior to accrual for such bonus
and similar bonuses payable to other executives of the Company):
Net Quarterly Earnings Percentage Bonus
Less than $300,000.00 0.0%
$300,000.00 1.0%
$350,000.00 1.5%
$400,000.00 2.0%
$450,000.00 2.5%
$500,000.00 3.0%
$550,000.00 3.5%
$600,000.00 4.0%
$650,000.00 4.5%
$700,000.00 or greater 5.0%
(d) Further, Executive shall be entitled to receive an
annual bonus payable on or before March 31 of each year equal to
that percentage of the Executive's base salary, as adjusted
pursuant to Section 4(b), specified below based upon the Company's
earnings before income tax for the fiscal year then ended (prior
to accrual for such bonus and similar bonuses payable to other
executives of the Company):
Earnings Before Income Tax
for the Fiscal Year Percentage of Base
(Before Specified Accruals) Salary Payable as Bonus
$ 0.00 - 299,999.00 0.0%
$ 300,000.00 - 399,999.99 7.5%
$ 400,000.00 - 499,999.99 10.0%
$ 500,000.00 - 599,999.99 12.5%
$ 600,000.00 - 699,999.99 15.0%
$ 700,000.00 - 799,999.99 17.5%
$ 800,000.00 - 899,999.99 20.0%
$ 900,000.00 - 999,999.99 22.5%
$1,000.000.00 or greater 25.0%
5. Office Facilities. During the Employment Period, the
Company will furnish Executive, without charge, suitable office
facilities for the purpose of performing his duties hereunder,
which facilities shall include secretarial, telephone, clerical
and support personnel and services and shall be similar to those
furnished to employees of the Company having comparable positions.
6. Fringe Benefits; Vacations.
(a) During the Employment Period, Executive shall be
entitled to participate in or receive benefits under such pension,
medical and life insurance and other employee benefit plans of the
Company which may be in effect from time to time, to the extent he
is eligible under the terms of those plans, on the same basis as
other employees of the Company having comparable positions.
(b) Executive shall be entitled to vacations with pay in
accordance with the policies of Employer in effect from time to
time.
(c) The Company shall pay Executive $500.00 per month as
reimbursement for disability insurance which the Executive has or
will individually obtain.
(d) The Company shall obtain and pay for the Executive's
family hospitalization coverage having substantially the terms of
the coverage currently held by Executive.
(e) The Company shall provide at its expense and for the
exclusive use of Executive a luxury class automobile and shall pay
all maintenance and insurance expenses associated therewith.
(f) Upon termination of the Employment Period for any
reason, the Company will offer to sell the vehicle described in
Section 6(e) to Executive or his representative at the depreciated
cost shown on the Company books including depreciation up to the
end of month of termination. Upon termination Executive may
purchase such vehicle at the price indicated or return the vehicle
to the Company.
(g) The stock option previously issued to Executive pursu-
ant to the Company's Non-Qualified Stock Option Plan (the "Plan")
is hereby amended to make the option fully assignable and
transferable, and Section 4.02 of the Plan is hereby amended to
the extent and only to the extent necessary to make the options
issued to Messrs. Morris Shwiff, Mark I. Kenner and Fred Kenner so
transferable and assignable.
7. Expenses. Subject to such policies regarding expenses
and expense reimbursement as may be adopted from time to time by
the Company and compliance therewith by Executive, Executive is
authorized to incur reasonable and necessary expenses in the
performance of his duties hereunder, and the Company will
reimburse Executive for such reasonable out-of-pocket expenses
upon the presentation by Executive of a reasonably itemized
account and receipts satisfactory to the Company.
8. Termination by Company.
(a) If Executive dies during the Employment Period, Company
shall pay to:
(i) the surviving spouse of Executive in the event of
his death, for so long as she survives; or,
(ii) the estate of Executive if Executive's spouse does
not survive him, or dies before expiration of the Employment
Period,
the sum of (x) all amounts payable to Executive hereunder through
the date of death and (y) a lump sum payment of $100,000 less, in
the case of (y), any amounts payable to Executive (or such spouse
or estate) pursuant to any insurance programs provided for
Executive's benefit with premiums paid by Company. All other
rights of Executive under this Agreement shall terminate concur-
rently with his death.
(b) The Company may terminate the employment of Executive
at any time upon written notice to Executive if Executive has (i)
breached an express term or provision of this Agreement and has
failed to remedy such breach within thirty (30) days of receipt by
Executive of notice of such breach; (ii) habitually neglected the
duties that Executive is required to perform under the terms of
this Agreement at any time within ninety (90) days after having
received a written notice from the Company that Executive has so
neglected such duties; or (iii) willfully violated reasonable and
substantial rules governing employee performance at any time
within ninety (90) days after having received a written notice
from the Company that Executive has so violated such rules. In
the event of termination of Executive's employment pursuant to
this Section 8(b), Executive shall continue to receive salary at
the rate specified in Section 4(a) and, to the extent permitted by
the applicable plans, to participate in the benefits described in
Section 6 on a month-to-month basis thereafter until (i) Executive
shall have obtained subsequent employment or (ii) the expiration
of an additional period of six months from the date of such
termination, whichever time period is shorter.
(c) If Executive commits any act of criminal misconduct,
whether or not related to Executive's duties hereunder, or any
clearly dishonest, disloyal or criminal act toward the Company or
its Affiliates, the Employment Period and Executive's salary and
other rights under this Agreement or as an employee of the Company
shall terminate without severance pay or other obligation on the
part of Company upon written notice from the Company to Executive,
but such termination shall not affect the liability of Executive
by reason of his misconduct or dishonest, disloyal or criminal
conduct.
(d) Notwithstanding anything to the contrary contained
herein, the Employment Period and the Executive's salary and other
rights under this Agreement or as an employee of the Company shall
not be deemed to have been terminated pursuant to either Section
8(b) or (c) unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds of the Pre-change
Directors (as defined below) of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to
the Executive and an opportunity for the Executive, together with
his counsel, to be heard before the Board), finding that in the
good faith opinion of the Board the Executive undertook actions
which constitute the conduct set forth above in Section 8(b) or
(c).
(e) Nothing herein shall be construed to reduce or abrogate
any rights Executive may have pursuant to the Consolidated Omnibus
Budget Reduction Act of 1985.
9. Termination by Executive.
(a) The Executive may terminate the Employment Period at
any time by giving the Company thirty (30) days notice, in which
event the Company agrees to pay to Executive salary at the rate
set forth in Section 4(a) as adjusted pursuant to Section 4(b)
and, to the extent permitted by the applicable plans, to provide
to Executive the benefits described in Section 6 for a period of
six (6) months commencing on the date of termination. All other
rights of Executive under this Agreement (except under Section 15,
16 and 17) shall terminate upon such termination.
(b) The Employment Period may be terminated by Executive,
if the Company fails to perform its duties hereunder or fails to
comply with any of the provisions hereof, thirty (30) days after
giving written notice to Company stating the nature of such non-
performance or non-compliance, unless Company shall have remedied
such non-performance or non-compliance with such thirty (30) days
notice period.
(c) The Executive shall be entitled to terminate his
employment hereunder at any time that (A) a change in control of
the Company (as defined below) has occurred and (B) there has
occurred, without the express written consent of the Executive:
(i) a substantial alteration in the nature or status
of the title, position, duties or responsibilities of
Executive from those in effect immediately prior to the
change in control of the Company;
(ii) a reduction by the Company in the Executive's
salary as in effect on the date hereof or as the same may be
increased from time to time;
(iii) the relocation of the Company's principal
executive offices to a location outside the Dallas
Metropolitan Area or the Company's requiring the Executive to
be based anywhere other than the Company's principal
executive offices except for required travel on the Company's
business to an extent substantially consistent with the
Executive's business travel obligations prior to the change
in control of the Company;
(iv) the failure by the Company to continue in effect
any compensation plan in which the Executive was
participating immediately prior to the change in control, or
the failure by the Company to continue the Executive's
participation therein;
(v) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those
enjoyed by the Executive under any of the Company's employee
stock ownership, life insurance, medical, health-and-
accident, or disability plans, as well as vacation, travel
and club privileges in which the Executive was participating
at the time of a change in control of the Company or the
taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefits enjoyed by the
Executive immediately before the time of the change in
control of the Company; or
(vi) any purported termination of the Executive's
employment which is not effected in accordance with the
requirements of Section 8 and, for purposes of this
Agreement, no such purported termination shall be effective.
(d) Upon termination of the Employment Period pursuant to
Section 9(b) or 9(c), the Company shall pay to Executive in one
lump sum on the fifth (5th) day following such termination, cash
in an amount equal to the lesser of (i) the total compensation
provided for under this Agreement for the balance of the then
effective Employment Period and (ii) the amount that is one dollar
($1.00) less than the amount which would be deemed a "parachute
payment" to Executive under the Internal Revenue Code of 1986, as
amended, to be paid in consideration of Executive's election to
terminate his employment with the Company and to release in full
all rights as an employee of the Company.
(e) For purposes of this Agreement, a "change in control of
the Company" shall mean a change in control of a nature that would
be required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not the Company
is then subject to such reporting requirement, or any other actual
change in the control of the Company (whether by merger,
consolidation, acquisition of assets or stock or otherwise); provided that,
without limitation, such a change in control shall be deemed to
have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), of the
Company's common stock as of the date of this Agreement, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing more than twenty-five percent (25%) of the
combined voting power of the Company's then outstanding securities
entitled to vote in the election of directors, (ii) a change
occurs in ownership of more than twenty-five percent (25%) in book
value of the Company's assets, or (iii) during any period of two
(2) consecutive years, individuals who at the beginning of such
two year period constituted the Board of Directors of the Company,
including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still
in office who were directors at the beginning of the period
(collectively, "Pre-Change Directors"), cease for any reason to
constitute a majority of the Company's Board of Directors.
10. Intellectual Property Rights.
(a) Executive hereby assigns, transfers, and conveys his
entire right, title, and interest in any and all Intellectual
Property which he makes or conceives, whether as a sole inventor
or originator or as a joint inventor or originator with others,
whether made within or out of usual working hours or upon the
premises or elsewhere, during the Employment Period. Executive
understands that "Intellectual Property" as used herein includes
information of a technical or a business nature such as ideas,
discoveries, designs, inventions, improvements, trade secrets,
know-how, manufacturing processes, product formulae, design
specifications, writings and other works of authorship, computer
programs, financial figures, marketing plans, customer lists and
data, business plans or methods and the like, which relate in any
manner to the actual or anticipated business or the actual or
anticipated areas of research and development of the Company, or
its divisions, subsidiaries, Affiliates, or related entities.
(b) Either during or subsequent to Executive's employment,
upon the request and at the expense of the Company, and for no
remuneration in addition to that due Executive pursuant to this
Agreement, but at no expense to him, Executive agrees to execute,
acknowledge, and deliver to the Company, its nominee, or its
attorneys any and all instruments which in the judgment of the
Company, its nominee, or its attorneys may be necessary or
desirable to secure or maintain for the benefit of the Company or
its nominee adequate patent, copyright, and other property rights
in the United States and foreign countries with respect to any
Intellectual Property embraced within this Agreement, including
but not limited to: (1) domestic and foreign patents and
copyright applications, (2) any other applications for securing,
protecting, or registering any property rights embraced within
this Agreement, and (3) powers of attorney, assignments, oaths,
affirmations, supplemental oaths and sworn statements; and further
agrees to assist the Company, its nominee, or its attorneys as
required to draft said instruments, to obtain said rights, and to
enforce said rights.
(c) Executive further agrees to disclose to the Company
promptly in writing any and all ideas, designs, inventions,
improvements, and developments, when conceived or made in whole or
in part, by him and to maintain adequate and current records
thereof.
(d) Any ideas, designs, inventions, improvements, dis-
coveries, and developments disclosed by Executive within one year
following termination of his employment shall be deemed to have
been assigned, transferred, and conveyed under the terms of
paragraphs (a) and (b), unless proved to have been conceived after
termination.
11. Covenant Not to Disclose. Executive covenants and
agrees that he will not, at any time during or after the
termination of his employment by the Company, communicate or
disclose to any person, or use for his own account, or advise,
discuss with, or in any way assist any other person or firm in
obtaining or learning about, without the prior written consent of
the Company, information concerning any inventions, processes,
programs, systems, flow charts or equipment used in, or any secret
or confidential or proprietary information, trade secrets or know-
how (including, without limitation, any customer lists, trade
secrets or information concerning any work done by the Company for
its customers or done in an effort to solicit or obtain customers)
concerning, the products, services, business or affairs of the
Company or any of its Affiliates which is not generally available
to the public and which has become known to Executive at any time
he has been employed by the Company. Executive further covenants
and agrees that he shall retain all such knowledge and information
concerning the foregoing in trust for the sole benefit of the
Company and its Affiliates and their respective successors and
assigns. Upon termination of his employment with Company, all
documents, records, notebooks, and similar repositories of or
containing secret or confidential or proprietary information,
including copies thereof, then in Executive's possession, whether
prepared by him or others, will be left with Company.
12. Protection of Company Goodwill and Proprietary
Information
(a) The following provisions of this Agreement contain
substantial restrictions on Executive's post-employment
activities. As evidenced by his initials affixed to this and
subsequent pages, Executive acknowledges that he has read and
understands such provisions.
(b) Executive recognizes and acknowledges that the lists of
the Company's customers, as well as information pertaining to
customer personnel, product preferences and buying habits as such
lists or information may exist, whether same are ever actually
committed to writing or otherwise compiled in one or more docu-
ments, or are merely memorized by Executive, are also valuable,
special and unique assets of the Company's business. Executive
will not, during or after the term of this Agreement, disclose,
directly or indirectly any of said customer lists or information
of or pertaining to customers or any part thereof, to any person,
firm, corporation, association or other entity for any reason or
purpose whatsoever.
(c) Further, Executive agrees:
(i) that Executive shall not, during the one (1) year
period immediately following the date upon which his employ-
ment by Company is terminated, directly or indirectly, for
himself or for any other person, firm, corporation, associa-
tion or other entity, as an owner, independent contractor,
principal, agent, officer, director, partner, stockholder,
employee, consultant or otherwise, within any state of the
United States of America or any foreign country in which the
Company has sold goods or services within one (1) year prior
to such termination, sell, solicit or accept orders, or
assist or aid in the selling or solicitation or acceptance of
orders for products similar to or which can be used in
substitution for or replacement of the Company's to any party
with whom Executive had contact while in the employ of
Company and (A) who is or has been a customer or client of
the Company at the date of such termination or within a
period of one (1) year prior thereto, or (B) who has been
identified as a potential customer or client of the Company
as of the date of such termination;
(ii) that Executive shall not during the one (1) year
period immediately following the date upon which his employ-
ment or engagement by Company is terminated, directly or
indirectly, for himself or for any other person, firm,
corporation, association or other entity as owner,
independent contractor, principal, agent, officer, director,
partner, stockholder, employee, consultant or otherwise,
within any state of the United States of America or any
foreign country in which the Company has purchased or
obtained goods or services within one (1) year prior to such
termination, employ or attempt to employ, or engage or
attempt to engage, or solicit or encourage to leave the
employment of Company or otherwise cease, curtail or modify
his relationship with Company, any employee, salesman,
independent contractor or agent employed or engaged by
Company as of the date of Executive's termination, unless
such person's employment or engagement with Company shall
have been terminated by Company prior thereto or Company
shall have consented to such employment, engagement,
solicitation or encouragement in writing.
(d) While the restrictions set forth in this Section 12 are
considered by the parties to be reasonable in all circumstances,
it is agreed that if any of such restrictions shall be adjudged to
be void or ineffective for whatever reason, but would be adjudged
to be valid and effective if part of the wording thereof were
deleted or the periods thereof reduced, the said restrictions
shall apply with such modifications as may be necessary to make
the same valid and effective.
13. Essential Nature of Covenants. The existence of any
claim or cause of action of Executive against the Company or any
of its Affiliates, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by
the Company of the covenants contained in Sections 10, 11 and 12
hereof. Executive understands that the covenants contained in
Sections 10, 11 and 12 are essential elements of the transactions
contemplated by this Agreement and, but for the agreement of
Executive to Sections 10, 11 and 12, the Company would not have
agreed to enter into such transactions. Executive has had the
opportunity to consult with counsel and to be advised in all
respects concerning the reasonableness and propriety of Sections
10, 11 and 12 with specific regard to the nature of the business
conducted by the Company, and Executive acknowledges that Sections
10, 11 and 12 are reasonable in all respects.
14. Remedies. Notwithstanding Section 15 of this
Agreement, in the event of a breach or threatened breach by
Executive of Sections 10, 11 or 12, the Company shall be entitled
to obtain from any court having jurisdiction of the parties a
temporary restraining order and an injunction restraining
Executive from the commission of such breach. Nothing contained
in this Section 14 shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach
or threatened breach, including the recovery money damages.
15. Arbitration. Except as provided in Section 14 of this
Agreement, the Company and Executive agree to submit to binding
arbitration any controversy or claim arising out of or relating to
this Agreement or the breach thereof or any other matter relating
in any manner to the relationship between the Company and
Executive or the termination of such relationship or otherwise
arising from or relating to any practices or procedures of the
Company or conduct of the Company or its agents toward Executive,
including but not limited to tortious claims and statutory claims.
Such arbitration shall be conducted in the City of Dallas, Texas,
in accordance with the Model Employment Arbitration Procedures
then in effect or, if such have been repealed, the rules then
obtaining of the American Arbitration Association, and judgment
upon the award rendered may be entered in any court having
jurisdiction thereof.
16. Certain Arbitration Procedures.
(a) The parties shall cooperate to the fullest extent
practicable in the voluntary exchange of documents and information
to expedite any such arbitration. Any request for documents or
other information should be specific, relate to the matter in
controversy, and afford the party to whom the request is made a
reasonable period of time to respond without interfering with the
time set for the hearing.
(b) Document Production and Information Exchange.
(i) Any party may serve a written request for infor-
mation or documents ("information request") upon another
party twenty (20) business days or more after the non-
complaining party has received notice of the institution of
arbitration proceedings. The requesting party shall serve
the information request on all parties and file a copy with
the arbitrator(s). The parties shall endeavor to resolve
disputes regarding an information request prior to serving
any objection to the request. Such efforts shall be set
forth in the objection.
(ii) Unless a greater time is allowed by the requesting
party, information requests shall be satisfied or objected to
within thirty (30) calendar days from the date of service.
Any objection to an information request shall be served by
the objecting party on all parties and filed with the
arbitrator(s).
(iii) Any response to objections to an information re-
quest shall be served on all parties and filed with the
arbitrator(s) within ten (10) calendar days of receipt of the
objection.
(iv) Upon the written request of a party whose infor-
mation request is unsatisfied, the matter will be referred by
the arbitrator(s) to either a pre-hearing conference under
subsection (d) of this section or to a selected arbitrator
under subsection (f) of this section.
(c) At least ten (10) calendar days prior to the first
scheduled hearing date, all parties shall serve on each other
copies of documents in their possession they intend to present at
the hearing and shall identify witnesses they intend to present at
the hearing. The arbitrators may exclude from the arbitration any
documents not exchanged or witnesses not identified. This
paragraph does not require service of copies of documents or
identification of witnesses which parties may use for cross-
examination or rebuttal.
(d)(i) Upon the written request of a party or an arbitrator,
a pre-hearing conference shall be scheduled. The arbitrator(s)
shall set the time and place of a pre-hearing conference and
appoint a person to preside. The pre-hearing conference may be
held by telephone conference call. The presiding person shall
seek to achieve agreement among the parties on any issue which
relates to the pre-hearing process or to the hearing, including
but not limited to exchange of information, exchange or production
of documents, identification of witnesses, identification and
exchange of hearing documents, stipulation of facts,
identification and briefing of contested issues, and any other
matters which will expedite the arbitration proceedings.
(ii) Any issues raised at the pre-hearing conference that
are not resolved may be referred to a single member of the
arbitration panel for decision.
(e) The arbitrator(s) shall apply such rules of procedure
in addition to the preceding rules as the arbitrator(s) think
appropriate under the circumstances, provided that both parties
shall be entitled to representation by counsel, to appear and
present written and oral evidence and argument, and to cross-
examine witnesses presented by the other party, and the
arbitrator(s) shall provide written reasons for the determination
rendered.
(f) The arbitrators (if more than one) may appoint a single
member of the arbitration panel to decide all unresolved issues
under this Section 16. Such arbitrator shall be authorized to act
on behalf of the panel to issue subpoenas, direct appearances of
witnesses and production of documents, set deadlines for compli-
ance, and issue any other ruling which will expedite the arbitra-
tion proceedings. Decisions under this section shall be made upon
the papers submitted by the parties, unless the arbitrator calls a
hearing. The arbitrator may elect to refer any issue under this
section to the full panel.
17. Miscellaneous.
(a) Waiver of Breach. The waiver by the either party of a
breach of any provision of this Agreement by the other party shall
not operate nor be construed as a waiver of any subsequent breach
by the other party.
(b) Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective successors, assigns, heirs and legal representatives.
(c) Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the construction
or interpretation of this Agreement.
(d) Severability. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibi-
tion or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(e) Governing Law. This Agreement shall be construed (both
as to validity and performance) and enforced in accordance with
and governed by the laws of the State of Texas.
(f) Notice. All notices which are required or may be given
under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person or three (3) days
after being mailed by registered or certified first class mail,
postage prepaid, return receipt requested, at the address listed
above for such party, or to such other address as such party shall
have specified by notice to the other party hereto as provided in
this Section.
(g) Entire Agreement. Except as specifically set forth
below, this Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
(h) Amendment. This Agreement may not be changed orally,
but only in writing signed by the party against whom enforcement
of any waiver, change, modification, extension, or discharge is
sought.
(i) Limitations. No suit, action, arbitration or other
proceeding based upon or arising out of this Agreement shall be
maintainable in any court of law or equity or before any arbitra-
tor(s) or other adjudicator(s) unless the same be commenced within
two (2) years after the calendar date upon which the claim giving
rise to such suit, action, arbitration or other proceeding arose.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and date first above written.
ARROW-MAGNOLIA INTERNATIONAL, INC.
By:
Print Name:
Title:
MORRIS SHWIFF
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement")
effective the 1st day of March, 1999, by and between ARROW-
MAGNOLIA INTERNATIONAL, INC., a Texas corporation, with principal
executive offices at 2646 Rodney Lane, Dallas Texas 75229
(hereinafter referred to as the "Company") and MARK KENNER, an
individual residing at 2646 Rodney Lane, Dallas Texas 75229,
(hereinafter referred to as "Executive");
W I T N E S S E T H:
WHEREAS, Executive wishes to continue to be employed by the
Company, and Executive and the Company desire to enter into an
agreement relating to such employment;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, it is agreed as follows:
1. Employment. The Company employs Executive, and
Executive accepts employment by the Company, subject to the terms
and conditions set forth herein.
2. Term. Subject to the provisions hereof, the term of
Executive's employment by the Company under this Agreement shall
be for a period of three (3) years commencing on the date hereof;
provided, however, that at the end of each year of employment, the
term of employment shall be extended for an additional one-year
period unless, on or prior to the date six (6) months prior to the
end of such year of employment, the Company shall give written
notice to Executive or Executive shall give written notice to the
Company of an intention to terminate this Agreement, in which
event the term of employment shall comprise only the remaining two
years and six months of the then existing term of employment. The
term of Executive's employment hereunder, including any
continuation or extension of the original term, is hereinafter
referred to as the "Employment Period."
3. Position and Duties. During the Employment Period,
Executive shall serve as Vice Chairman and Chief Executive Officer
of the Company, with such assignments, powers and duties as are
assigned or delegated to him by the Board of Directors of the
Company. Such assignments, powers and duties may, from time to
time, be modified by the Company, as needs may require. Executive
shall also, at the request of the Company, perform similar
services for any Affiliate (as hereinafter defined) of the Company
without additional compensation. Executive agrees to devote
substantially all of his time, skill, attention and energy to the
business affairs of the Company and its Affiliates to advance the
best interests of the Company and its Affiliates and shall not
hold any other salaried position during the Employment Period.
Nothing contained herein shall be construed to prevent
Executive from investing his assets in any form or manner or from
serving on the Boards of other corporations or charitable
organizations or holding uncompensated positions with
professional, academic or industry organizations, provided such
investments and activities do not unreasonably interfere with
Executive's performance of services on behalf of Company
hereunder. As used in this Agreement, the term "Affiliate" of the
Company means any person or corporation that, directly or
indirectly through one or more intermediaries, is controlled by
the Company.
4. Compensation.
(a) For all services rendered by Executive to the Company
during the Employment Period, the Company shall initially pay
Executive a salary at the rate of One Hundred Fifty-Four Thousand
Seven Hundred Dollars ($154,700.00) per year, payable, subject to
such withholding as may be required by law, in installments in
accordance with the Company's customary payroll practices.
(b) Effective January 1 of each calendar year during the
Employment Period, Executive shall receive an increase in salary
of at least 6% from his salary for the prior calendar year.
(c) Executive shall also be entitled to receive quarterly
bonuses payable forty-five days after the end of each fiscal
quarter of the Company equal to that percentage of the Company's
net earnings specified below based upon the amount of net earnings
for the fiscal quarter then ended (prior to accrual for such bonus
and similar bonuses payable to other executives of the Company):
Net Quarterly Earnings Percentage Bonus
Less than $300,000.00 0.0%
$300,000.00 1.0%
$350,000.00 1.5%
$400,000.00 2.0%
$450,000.00 2.5%
$500,000.00 3.0%
$550,000.00 3.5%
$600,000.00 4.0%
$650,000.00 4.5%
$700,000.00 or greater 5.0%
(d) Further, Executive shall be entitled to receive an
annual bonus payable on or before March 31 of each year equal to
that percentage of the Executive's base salary, as adjusted
pursuant to Section 4(b), specified below based upon the Company's
earnings before income tax for the fiscal year then ended (prior
to accrual for such bonus and similar bonuses payable to other
executives of the Company):
Earnings Before Income Tax
for the Fiscal Year Percentage of Base
(Before Specified Accruals) Salary Payable as Bonus
$ 0.00 - 299,999.00 0.0%
$ 300,000.00 - 399,999.99 7.5%
$ 400,000.00 - 499,999.99 10.0%
$ 500,000.00 - 599,999.99 12.5%
$ 600,000.00 - 699,999.99 15.0%
$ 700,000.00 - 799,999.99 17.5%
$ 800,000.00 - 899,999.99 20.0%
$ 900,000.00 - 999,999.99 22.5%
$1,000.000.00 or greater 25.0%
5. Office Facilities. During the Employment Period, the
Company will furnish Executive, without charge, suitable office
facilities for the purpose of performing his duties hereunder,
which facilities shall include secretarial, telephone, clerical
and support personnel and services and shall be similar to those
furnished to employees of the Company having comparable positions.
6. Fringe Benefits; Vacations.
(a) During the Employment Period, Executive shall be
entitled to participate in or receive benefits under such pension,
medical and life insurance and other employee benefit plans of the
Company which may be in effect from time to time, to the extent he
is eligible under the terms of those plans, on the same basis as
other employees of the Company having comparable positions.
(b) Executive shall be entitled to vacations with pay in
accordance with the policies of Employer in effect from time to
time.
(c) The Company shall pay Executive $500.00 per month as
reimbursement for disability insurance which the Executive has or
will individually obtain.
(d) The Company shall obtain and pay for the Executive's
family hospitalization coverage having substantially the terms of
the coverage currently held by Executive.
(e) The Company shall provide at its expense and for the
exclusive use of Executive a luxury class automobile and shall pay
all maintenance and insurance expenses associated therewith.
(f) Upon termination of the Employment Period for any
reason, the Company will offer to sell the vehicle described in
Section 6(e) to Executive or his representative at the depreciated
cost shown on the Company books including depreciation up to the
end of month of termination. Upon termination Executive may
purchase such vehicle at the price indicated or return the vehicle
to the Company.
(g) The stock option previously issued to Executive pursu-
ant to the Company's Non-Qualified Stock Option Plan (the "Plan")
is hereby amended to make the option fully assignable and
transferable, and Section 4.02 of the Plan is hereby amended to
the extent and only to the extent necessary to make the options
issued to Messrs. Morris Shwiff, Mark I. Kenner and Fred Kenner so
transferable and assignable.
7. Expenses. Subject to such policies regarding expenses
and expense reimbursement as may be adopted from time to time by
the Company and compliance therewith by Executive, Executive is
authorized to incur reasonable and necessary expenses in the
performance of his duties hereunder, and the Company will
reimburse Executive for such reasonable out-of-pocket expenses
upon the presentation by Executive of a reasonably itemized
account and receipts satisfactory to the Company.
8. Termination by Company.
(a) If Executive dies during the Employment Period, Company
shall pay to:
(i) the surviving spouse of Executive in the event of
his death, for so long as she survives; or,
(ii) the estate of Executive if Executive's spouse does
not survive him, or dies before expiration of the Employment
Period,
the sum of (x) all amounts payable to Executive hereunder through
the date of death and (y) a lump sum payment of $100,000 less, in
the case of (y), any amounts payable to Executive (or such spouse
or estate) pursuant to any insurance programs provided for
Executive's benefit with premiums paid by Company. All other
rights of Executive under this Agreement shall terminate concur-
rently with his death.
(b) The Company may terminate the employment of Executive
at any time upon written notice to Executive if Executive has (i)
breached an express term or provision of this Agreement and has
failed to remedy such breach within thirty (30) days of receipt by
Executive of notice of such breach; (ii) habitually neglected the
duties that Executive is required to perform under the terms of
this Agreement at any time within ninety (90) days after having
received a written notice from the Company that Executive has so
neglected such duties; or (iii) willfully violated reasonable and
substantial rules governing employee performance at any time
within ninety (90) days after having received a written notice
from the Company that Executive has so violated such rules. In
the event of termination of Executive's employment pursuant to
this Section 8(b), Executive shall continue to receive salary at
the rate specified in Section 4(a) and, to the extent permitted by
the applicable plans, to participate in the benefits described in
Section 6 on a month-to-month basis thereafter until (i) Executive
shall have obtained subsequent employment or (ii) the expiration
of an additional period of six months from the date of such
termination, whichever time period is shorter.
(c) If Executive commits any act of criminal misconduct,
whether or not related to Executive's duties hereunder, or any
clearly dishonest, disloyal or criminal act toward the Company or
its Affiliates, the Employment Period and Executive's salary and
other rights under this Agreement or as an employee of the Company
shall terminate without severance pay or other obligation on the
part of Company upon written notice from the Company to Executive,
but such termination shall not affect the liability of Executive
by reason of his misconduct or dishonest, disloyal or criminal
conduct.
(d) Notwithstanding anything to the contrary contained
herein, the Employment Period and the Executive's salary and other
rights under this Agreement or as an employee of the Company shall
not be deemed to have been terminated pursuant to either Section
8(b) or (c) unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds of the Pre-change
Directors (as defined below) of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to
the Executive and an opportunity for the Executive, together with
his counsel, to be heard before the Board), finding that in the
good faith opinion of the Board the Executive undertook actions
which constitute the conduct set forth above in Section 8(b) or
(c).
(e) Nothing herein shall be construed to reduce or abrogate
any rights Executive may have pursuant to the Consolidated Omnibus
Budget Reduction Act of 1985.
9. Termination by Executive.
(a) The Executive may terminate the Employment Period at
any time by giving the Company thirty (30) days notice, in which
event the Company agrees to pay to Executive salary at the rate
set forth in Section 4(a) as adjusted pursuant to Section 4(b)
and, to the extent permitted by the applicable plans, to provide
to Executive the benefits described in Section 6 for a period of
six (6) months commencing on the date of termination. All other
rights of Executive under this Agreement (except under Section 15,
16 and 17) shall terminate upon such termination.
(b) The Employment Period may be terminated by Executive,
if the Company fails to perform its duties hereunder or fails to
comply with any of the provisions hereof, thirty (30) days after
giving written notice to Company stating the nature of such non-
performance or non-compliance, unless Company shall have remedied
such non-performance or non-compliance with such thirty (30) days
notice period.
(c) The Executive shall be entitled to terminate his
employment hereunder at any time that (A) a change in control of
the Company (as defined below) has occurred and (B) there has
occurred, without the express written consent of the Executive:
(i) a substantial alteration in the nature or status
of the title, position, duties or responsibilities of
Executive from those in effect immediately prior to the
change in control of the Company;
(ii) a reduction by the Company in the Executive's
salary as in effect on the date hereof or as the same may be
increased from time to time;
(iii) the relocation of the Company's principal
executive offices to a location outside the Dallas
Metropolitan Area or the Company's requiring the Executive to
be based anywhere other than the Company's principal
executive offices except for required travel on the Company's
business to an extent substantially consistent with the
Executive's business travel obligations prior to the change
in control of the Company;
(iv) the failure by the Company to continue in effect
any compensation plan in which the Executive was
participating immediately prior to the change in control, or
the failure by the Company to continue the Executive's
participation therein;
(v) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those
enjoyed by the Executive under any of the Company's employee
stock ownership, life insurance, medical, health-and-
accident, or disability plans, as well as vacation, travel
and club privileges in which the Executive was participating
at the time of a change in control of the Company or the
taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefits enjoyed by the
Executive immediately before the time of the change in
control of the Company; or
(vi) any purported termination of the Executive's
employment which is not effected in accordance with the
requirements of Section 8 and, for purposes of this
Agreement, no such purported termination shall be effective.
(d) Upon termination of the Employment Period pursuant to
Section 9(b) or 9(c), the Company shall pay to Executive in one
lump sum on the fifth (5th) day following such termination, cash
in an amount equal to the lesser of (i) the total compensation
provided for under this Agreement for the balance of the then
effective Employment Period and (ii) the amount that is one dollar
($1.00) less than the amount which would be deemed a "parachute
payment" to Executive under the Internal Revenue Code of 1986, as
amended, to be paid in consideration of Executive's election to
terminate his employment with the Company and to release in full
all rights as an employee of the Company.
(e) For purposes of this Agreement, a "change in control of
the Company" shall mean a change in control of a nature that would
be required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not the Company
is then subject to such reporting requirement, or any other actual
change in the control of the Company (whether by merger,
consolidation, acquisition of assets or stock or otherwise); provided that,
without limitation, such a change in control shall be deemed to
have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), of the
Company's common stock as of the date of this Agreement, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing more than twenty-five percent (25%) of the
combined voting power of the Company's then outstanding securities
entitled to vote in the election of directors, (ii) a change
occurs in ownership of more than twenty-five percent (25%) in book
value of the Company's assets, or (iii) during any period of two
(2) consecutive years, individuals who at the beginning of such
two year period constituted the Board of Directors of the Company,
including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still
in office who were directors at the beginning of the period
(collectively, "Pre-Change Directors"), cease for any reason to
constitute a majority of the Company's Board of Directors.
10. Intellectual Property Rights.
(a) Executive hereby assigns, transfers, and conveys his
entire right, title, and interest in any and all Intellectual
Property which he makes or conceives, whether as a sole inventor
or originator or as a joint inventor or originator with others,
whether made within or out of usual working hours or upon the
premises or elsewhere, during the Employment Period. Executive
understands that "Intellectual Property" as used herein includes
information of a technical or a business nature such as ideas,
discoveries, designs, inventions, improvements, trade secrets,
know-how, manufacturing processes, product formulae, design
specifications, writings and other works of authorship, computer
programs, financial figures, marketing plans, customer lists and
data, business plans or methods and the like, which relate in any
manner to the actual or anticipated business or the actual or
anticipated areas of research and development of the Company, or
its divisions, subsidiaries, Affiliates, or related entities.
(b) Either during or subsequent to Executive's employment,
upon the request and at the expense of the Company, and for no
remuneration in addition to that due Executive pursuant to this
Agreement, but at no expense to him, Executive agrees to execute,
acknowledge, and deliver to the Company, its nominee, or its
attorneys any and all instruments which in the judgment of the
Company, its nominee, or its attorneys may be necessary or
desirable to secure or maintain for the benefit of the Company or
its nominee adequate patent, copyright, and other property rights
in the United States and foreign countries with respect to any
Intellectual Property embraced within this Agreement, including
but not limited to: (1) domestic and foreign patents and
copyright applications, (2) any other applications for securing,
protecting, or registering any property rights embraced within
this Agreement, and (3) powers of attorney, assignments, oaths,
affirmations, supplemental oaths and sworn statements; and further
agrees to assist the Company, its nominee, or its attorneys as
required to draft said instruments, to obtain said rights, and to
enforce said rights.
(c) Executive further agrees to disclose to the Company
promptly in writing any and all ideas, designs, inventions,
improvements, and developments, when conceived or made in whole or
in part, by him and to maintain adequate and current records
thereof.
(d) Any ideas, designs, inventions, improvements, dis-
coveries, and developments disclosed by Executive within one year
following termination of his employment shall be deemed to have
been assigned, transferred, and conveyed under the terms of
paragraphs (a) and (b), unless proved to have been conceived after
termination.
11. Covenant Not to Disclose. Executive covenants and
agrees that he will not, at any time during or after the
termination of his employment by the Company, communicate or
disclose to any person, or use for his own account, or advise,
discuss with, or in any way assist any other person or firm in
obtaining or learning about, without the prior written consent of
the Company, information concerning any inventions, processes,
programs, systems, flow charts or equipment used in, or any secret
or confidential or proprietary information, trade secrets or know-
how (including, without limitation, any customer lists, trade
secrets or information concerning any work done by the Company for
its customers or done in an effort to solicit or obtain customers)
concerning, the products, services, business or affairs of the
Company or any of its Affiliates which is not generally available
to the public and which has become known to Executive at any time
he has been employed by the Company. Executive further covenants
and agrees that he shall retain all such knowledge and information
concerning the foregoing in trust for the sole benefit of the
Company and its Affiliates and their respective successors and
assigns. Upon termination of his employment with Company, all
documents, records, notebooks, and similar repositories of or
containing secret or confidential or proprietary information,
including copies thereof, then in Executive's possession, whether
prepared by him or others, will be left with Company.
12. Protection of Company Goodwill and Proprietary
Information
(a) The following provisions of this Agreement contain
substantial restrictions on Executive's post-employment
activities. As evidenced by his initials affixed to this and
subsequent pages, Executive acknowledges that he has read and
understands such provisions.
(b) Executive recognizes and acknowledges that the lists of
the Company's customers, as well as information pertaining to
customer personnel, product preferences and buying habits as such
lists or information may exist, whether same are ever actually
committed to writing or otherwise compiled in one or more docu-
ments, or are merely memorized by Executive, are also valuable,
special and unique assets of the Company's business. Executive
will not, during or after the term of this Agreement, disclose,
directly or indirectly any of said customer lists or information
of or pertaining to customers or any part thereof, to any person,
firm, corporation, association or other entity for any reason or
purpose whatsoever.
(c) Further, Executive agrees:
(i) that Executive shall not, during the one (1) year
period immediately following the date upon which his employ-
ment by Company is terminated, directly or indirectly, for
himself or for any other person, firm, corporation, associa-
tion or other entity, as an owner, independent contractor,
principal, agent, officer, director, partner, stockholder,
employee, consultant or otherwise, within any state of the
United States of America or any foreign country in which the
Company has sold goods or services within one (1) year prior
to such termination, sell, solicit or accept orders, or
assist or aid in the selling or solicitation or acceptance of
orders for products similar to or which can be used in
substitution for or replacement of the Company's to any party
with whom Executive had contact while in the employ of
Company and (A) who is or has been a customer or client of
the Company at the date of such termination or within a
period of one (1) year prior thereto, or (B) who has been
identified as a potential customer or client of the Company
as of the date of such termination;
(ii) that Executive shall not during the one (1) year
period immediately following the date upon which his employ-
ment or engagement by Company is terminated, directly or
indirectly, for himself or for any other person, firm,
corporation, association or other entity as owner,
independent contractor, principal, agent, officer, director,
partner, stockholder, employee, consultant or otherwise,
within any state of the United States of America or any
foreign country in which the Company has purchased or
obtained goods or services within one (1) year prior to such
termination, employ or attempt to employ, or engage or
attempt to engage, or solicit or encourage to leave the
employment of Company or otherwise cease, curtail or modify
his relationship with Company, any employee, salesman,
independent contractor or agent employed or engaged by
Company as of the date of Executive's termination, unless
such person's employment or engagement with Company shall
have been terminated by Company prior thereto or Company
shall have consented to such employment, engagement,
solicitation or encouragement in writing.
(d) While the restrictions set forth in this Section 12 are
considered by the parties to be reasonable in all circumstances,
it is agreed that if any of such restrictions shall be adjudged to
be void or ineffective for whatever reason, but would be adjudged
to be valid and effective if part of the wording thereof were
deleted or the periods thereof reduced, the said restrictions
shall apply with such modifications as may be necessary to make
the same valid and effective.
13. Essential Nature of Covenants. The existence of any
claim or cause of action of Executive against the Company or any
of its Affiliates, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by
the Company of the covenants contained in Sections 10, 11 and 12
hereof. Executive understands that the covenants contained in
Sections 10, 11 and 12 are essential elements of the transactions
contemplated by this Agreement and, but for the agreement of
Executive to Sections 10, 11 and 12, the Company would not have
agreed to enter into such transactions. Executive has had the
opportunity to consult with counsel and to be advised in all
respects concerning the reasonableness and propriety of Sections
10, 11 and 12 with specific regard to the nature of the business
conducted by the Company, and Executive acknowledges that Sections
10, 11 and 12 are reasonable in all respects.
14. Remedies. Notwithstanding Section 15 of this
Agreement, in the event of a breach or threatened breach by
Executive of Sections 10, 11 or 12, the Company shall be entitled
to obtain from any court having jurisdiction of the parties a
temporary restraining order and an injunction restraining
Executive from the commission of such breach. Nothing contained
in this Section 14 shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach
or threatened breach, including the recovery money damages.
15. Arbitration. Except as provided in Section 14 of this
Agreement, the Company and Executive agree to submit to binding
arbitration any controversy or claim arising out of or relating to
this Agreement or the breach thereof or any other matter relating
in any manner to the relationship between the Company and
Executive or the termination of such relationship or otherwise
arising from or relating to any practices or procedures of the
Company or conduct of the Company or its agents toward Executive,
including but not limited to tortious claims and statutory claims.
Such arbitration shall be conducted in the City of Dallas, Texas,
in accordance with the Model Employment Arbitration Procedures
then in effect or, if such have been repealed, the rules then
obtaining of the American Arbitration Association, and judgment
upon the award rendered may be entered in any court having
jurisdiction thereof.
16. Certain Arbitration Procedures.
(a) The parties shall cooperate to the fullest extent
practicable in the voluntary exchange of documents and information
to expedite any such arbitration. Any request for documents or
other information should be specific, relate to the matter in
controversy, and afford the party to whom the request is made a
reasonable period of time to respond without interfering with the
time set for the hearing.
(b) Document Production and Information Exchange.
(i) Any party may serve a written request for infor-
mation or documents ("information request") upon another
party twenty (20) business days or more after the non-
complaining party has received notice of the institution of
arbitration proceedings. The requesting party shall serve
the information request on all parties and file a copy with
the arbitrator(s). The parties shall endeavor to resolve
disputes regarding an information request prior to serving
any objection to the request. Such efforts shall be set
forth in the objection.
(ii) Unless a greater time is allowed by the requesting
party, information requests shall be satisfied or objected to
within thirty (30) calendar days from the date of service.
Any objection to an information request shall be served by
the objecting party on all parties and filed with the
arbitrator(s).
(iii) Any response to objections to an information re-
quest shall be served on all parties and filed with the
arbitrator(s) within ten (10) calendar days of receipt of the
objection.
(iv) Upon the written request of a party whose infor-
mation request is unsatisfied, the matter will be referred by
the arbitrator(s) to either a pre-hearing conference under
subsection (d) of this section or to a selected arbitrator
under subsection (f) of this section.
(c) At least ten (10) calendar days prior to the first
scheduled hearing date, all parties shall serve on each other
copies of documents in their possession they intend to present at
the hearing and shall identify witnesses they intend to present at
the hearing. The arbitrators may exclude from the arbitration any
documents not exchanged or witnesses not identified. This
paragraph does not require service of copies of documents or
identification of witnesses which parties may use for cross-
examination or rebuttal.
(d)(i) Upon the written request of a party or an arbitrator,
a pre-hearing conference shall be scheduled. The arbitrator(s)
shall set the time and place of a pre-hearing conference and
appoint a person to preside. The pre-hearing conference may be
held by telephone conference call. The presiding person shall
seek to achieve agreement among the parties on any issue which
relates to the pre-hearing process or to the hearing, including
but not limited to exchange of information, exchange or production
of documents, identification of witnesses, identification and
exchange of hearing documents, stipulation of facts,
identification and briefing of contested issues, and any other
matters which will expedite the arbitration proceedings.
(ii) Any issues raised at the pre-hearing conference that
are not resolved may be referred to a single member of the
arbitration panel for decision.
(e) The arbitrator(s) shall apply such rules of procedure
in addition to the preceding rules as the arbitrator(s) think
appropriate under the circumstances, provided that both parties
shall be entitled to representation by counsel, to appear and
present written and oral evidence and argument, and to cross-
examine witnesses presented by the other party, and the
arbitrator(s) shall provide written reasons for the determination
rendered.
(f) The arbitrators (if more than one) may appoint a single
member of the arbitration panel to decide all unresolved issues
under this Section 16. Such arbitrator shall be authorized to act
on behalf of the panel to issue subpoenas, direct appearances of
witnesses and production of documents, set deadlines for compli-
ance, and issue any other ruling which will expedite the arbitra-
tion proceedings. Decisions under this section shall be made upon
the papers submitted by the parties, unless the arbitrator calls a
hearing. The arbitrator may elect to refer any issue under this
section to the full panel.
17. Miscellaneous.
(a) Waiver of Breach. The waiver by the either party of a
breach of any provision of this Agreement by the other party shall
not operate nor be construed as a waiver of any subsequent breach
by the other party.
(b) Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective successors, assigns, heirs and legal representatives.
(c) Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the construction
or interpretation of this Agreement.
(d) Severability. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibi-
tion or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(e) Governing Law. This Agreement shall be construed (both
as to validity and performance) and enforced in accordance with
and governed by the laws of the State of Texas.
(f) Notice. All notices which are required or may be given
under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person or three (3) days
after being mailed by registered or certified first class mail,
postage prepaid, return receipt requested, at the address listed
above for such party, or to such other address as such party shall
have specified by notice to the other party hereto as provided in
this Section.
(g) Entire Agreement. Except as specifically set forth
below, this Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
(h) Amendment. This Agreement may not be changed orally,
but only in writing signed by the party against whom enforcement
of any waiver, change, modification, extension, or discharge is
sought.
(i) Limitations. No suit, action, arbitration or other
proceeding based upon or arising out of this Agreement shall be
maintainable in any court of law or equity or before any arbitra-
tor(s) or other adjudicator(s) unless the same be commenced within
two (2) years after the calendar date upon which the claim giving
rise to such suit, action, arbitration or other proceeding arose.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and date first above written.
ARROW-MAGNOLIA INTERNATIONAL, INC.
By:
Print Name:
Title:
MARK KENNER
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement")
effective the 1st day of March, 1999, by and between ARROW-
MAGNOLIA INTERNATIONAL, INC., a Texas corporation, with principal
executive offices at 2646 Rodney Lane, Dallas Texas 75229
(hereinafter referred to as the "Company") and FRED KENNER, an
individual residing at 2646 Rodney Lane, Dallas Texas 75229,
(hereinafter referred to as "Executive");
W I T N E S S E T H:
WHEREAS, Executive wishes to continue to be employed by the
Company, and Executive and the Company desire to enter into an
agreement relating to such employment;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, it is agreed as follows:
1. Employment. The Company employs Executive, and
Executive accepts employment by the Company, subject to the terms
and conditions set forth herein.
2. Term. Subject to the provisions hereof, the term of
Executive's employment by the Company under this Agreement shall
be for a period of three (3) years commencing on the date hereof;
provided, however, that at the end of each year of employment, the
term of employment shall be extended for an additional one-year
period unless, on or prior to the date six (6) months prior to the
end of such year of employment, the Company shall give written
notice to Executive or Executive shall give written notice to the
Company of an intention to terminate this Agreement, in which
event the term of employment shall comprise only the remaining two
years and six months of the then existing term of employment. The
term of Executive's employment hereunder, including any
continuation or extension of the original term, is hereinafter
referred to as the "Employment Period."
3. Position and Duties. During the Employment Period,
Executive shall serve as President and Chief Operating Officer of
the Company, with such assignments, powers and duties as are
assigned or delegated to him by the Board of Directors of the
Company. Such assignments, powers and duties may, from time to
time, be modified by the Company, as needs may require. Executive
shall also, at the request of the Company, perform similar
services for any Affiliate (as hereinafter defined) of the Company
without additional compensation. Executive agrees to devote
substantially all of his time, skill, attention and energy to the
business affairs of the Company and its Affiliates to advance the
best interests of the Company and its Affiliates and shall not
hold any other salaried position during the Employment Period.
Nothing contained herein shall be construed to prevent
Executive from investing his assets in any form or manner or from
serving on the Boards of other corporations or charitable
organizations or holding uncompensated positions with
professional, academic or industry organizations, provided such
investments and activities do not unreasonably interfere with
Executive's performance of services on behalf of Company
hereunder. As used in this Agreement, the term "Affiliate" of the
Company means any person or corporation that, directly or
indirectly through one or more intermediaries, is controlled by
the Company.
4. Compensation.
(a) For all services rendered by Executive to the Company
during the Employment Period, the Company shall initially pay
Executive a salary at the rate of One Hundred Forty-Eight Thousand
Two Hundred Dollars ($148,200.00) per year, payable, subject to
such withholding as may be required by law, in installments in
accordance with the Company's customary payroll practices.
(b) Effective January 1 of each calendar year during the
Employment Period, Executive shall receive an increase in salary
of at least 6% from his salary for the prior calendar year.
(c) Executive shall also be entitled to receive quarterly
bonuses payable forty-five days after the end of each fiscal
quarter of the Company equal to that percentage of the Company's
net earnings specified below based upon the amount of net earnings
for the fiscal quarter then ended (prior to accrual for such bonus
and similar bonuses payable to other executives of the Company):
Net Quarterly Earnings Percentage Bonus
Less than $300,000.00 0.0%
$300,000.00 1.0%
$350,000.00 1.5%
$400,000.00 2.0%
$450,000.00 2.5%
$500,000.00 3.0%
$550,000.00 3.5%
$600,000.00 4.0%
$650,000.00 4.5%
$700,000.00 or greater 5.0%
(d) Further, Executive shall be entitled to receive an
annual bonus payable on or before March 31 of each year equal to
that percentage of the Executive's base salary, as adjusted
pursuant to Section 4(b), specified below based upon the Company's
earnings before income tax for the fiscal year then ended (prior
to accrual for such bonus and similar bonuses payable to other
executives of the Company):
Earnings Before Income Tax
for the Fiscal Year Percentage of Base
(Before Specified Accruals) Salary Payable as Bonus
$ 0.00 - 299,999.00 0.0%
$ 300,000.00 - 399,999.99 7.5%
$ 400,000.00 - 499,999.99 10.0%
$ 500,000.00 - 599,999.99 12.5%
$ 600,000.00 - 699,999.99 15.0%
$ 700,000.00 - 799,999.99 17.5%
$ 800,000.00 - 899,999.99 20.0%
$ 900,000.00 - 999,999.99 22.5%
$1,000.000.00 or greater 25.0%
5. Office Facilities. During the Employment Period, the
Company will furnish Executive, without charge, suitable office
facilities for the purpose of performing his duties hereunder,
which facilities shall include secretarial, telephone, clerical
and support personnel and services and shall be similar to those
furnished to employees of the Company having comparable positions.
6. Fringe Benefits; Vacations.
(a) During the Employment Period, Executive shall be
entitled to participate in or receive benefits under such pension,
medical and life insurance and other employee benefit plans of the
Company which may be in effect from time to time, to the extent he
is eligible under the terms of those plans, on the same basis as
other employees of the Company having comparable positions.
(b) Executive shall be entitled to vacations with pay in
accordance with the policies of Employer in effect from time to
time.
(c) The Company shall pay Executive $500.00 per month as
reimbursement for disability insurance which the Executive has or
will individually obtain.
(d) The Company shall obtain and pay for the Executive's
family hospitalization coverage having substantially the terms of
the coverage currently held by Executive.
(e) The Company shall provide at its expense and for the
exclusive use of Executive a luxury class automobile and shall pay
all maintenance and insurance expenses associated therewith.
(f) Upon termination of the Employment Period for any
reason, the Company will offer to sell the vehicle described in
Section 6(e) to Executive or his representative at the depreciated
cost shown on the Company books including depreciation up to the
end of month of termination. Upon termination Executive may
purchase such vehicle at the price indicated or return the vehicle
to the Company.
(g) The stock option previously issued to Executive pursu-
ant to the Company's Non-Qualified Stock Option Plan (the "Plan")
is hereby amended to make the option fully assignable and
transferable, and Section 4.02 of the Plan is hereby amended to
the extent and only to the extent necessary to make the options
issued to Messrs. Morris Shwiff, Mark I. Kenner and Fred Kenner so
transferable and assignable.
7. Expenses. Subject to such policies regarding expenses
and expense reimbursement as may be adopted from time to time by
the Company and compliance therewith by Executive, Executive is
authorized to incur reasonable and necessary expenses in the
performance of his duties hereunder, and the Company will
reimburse Executive for such reasonable out-of-pocket expenses
upon the presentation by Executive of a reasonably itemized
account and receipts satisfactory to the Company.
8. Termination by Company.
(a) If Executive dies during the Employment Period, Company
shall pay to:
(i) the surviving spouse of Executive in the event of
his death, for so long as she survives; or,
(ii) the estate of Executive if Executive's spouse does
not survive him, or dies before expiration of the Employment
Period,
the sum of (x) all amounts payable to Executive hereunder through
the date of death and (y) a lump sum payment of $100,000 less, in
the case of (y), any amounts payable to Executive (or such spouse
or estate) pursuant to any insurance programs provided for
Executive's benefit with premiums paid by Company. All other
rights of Executive under this Agreement shall terminate concur-
rently with his death.
(b) The Company may terminate the employment of Executive
at any time upon written notice to Executive if Executive has (i)
breached an express term or provision of this Agreement and has
failed to remedy such breach within thirty (30) days of receipt by
Executive of notice of such breach; (ii) habitually neglected the
duties that Executive is required to perform under the terms of
this Agreement at any time within ninety (90) days after having
received a written notice from the Company that Executive has so
neglected such duties; or (iii) willfully violated reasonable and
substantial rules governing employee performance at any time
within ninety (90) days after having received a written notice
from the Company that Executive has so violated such rules. In
the event of termination of Executive's employment pursuant to
this Section 8(b), Executive shall continue to receive salary at
the rate specified in Section 4(a) and, to the extent permitted by
the applicable plans, to participate in the benefits described in
Section 6 on a month-to-month basis thereafter until (i) Executive
shall have obtained subsequent employment or (ii) the expiration
of an additional period of six months from the date of such
termination, whichever time period is shorter.
(c) If Executive commits any act of criminal misconduct,
whether or not related to Executive's duties hereunder, or any
clearly dishonest, disloyal or criminal act toward the Company or
its Affiliates, the Employment Period and Executive's salary and
other rights under this Agreement or as an employee of the Company
shall terminate without severance pay or other obligation on the
part of Company upon written notice from the Company to Executive,
but such termination shall not affect the liability of Executive
by reason of his misconduct or dishonest, disloyal or criminal
conduct.
(d) Notwithstanding anything to the contrary contained
herein, the Employment Period and the Executive's salary and other
rights under this Agreement or as an employee of the Company shall
not be deemed to have been terminated pursuant to either Section
8(b) or (c) unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds of the Pre-change
Directors (as defined below) of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to
the Executive and an opportunity for the Executive, together with
his counsel, to be heard before the Board), finding that in the
good faith opinion of the Board the Executive undertook actions
which constitute the conduct set forth above in Section 8(b) or
(c).
(e) Nothing herein shall be construed to reduce or abrogate
any rights Executive may have pursuant to the Consolidated Omnibus
Budget Reduction Act of 1985.
9. Termination by Executive.
(a) The Executive may terminate the Employment Period at
any time by giving the Company thirty (30) days notice, in which
event the Company agrees to pay to Executive salary at the rate
set forth in Section 4(a) as adjusted pursuant to Section 4(b)
and, to the extent permitted by the applicable plans, to provide
to Executive the benefits described in Section 6 for a period of
six (6) months commencing on the date of termination. All other
rights of Executive under this Agreement (except under Section 15,
16 and 17) shall terminate upon such termination.
(b) The Employment Period may be terminated by Executive,
if the Company fails to perform its duties hereunder or fails to
comply with any of the provisions hereof, thirty (30) days after
giving written notice to Company stating the nature of such non-
performance or non-compliance, unless Company shall have remedied
such non-performance or non-compliance with such thirty (30) days
notice period.
(c) The Executive shall be entitled to terminate his
employment hereunder at any time that (A) a change in control of
the Company (as defined below) has occurred and (B) there has
occurred, without the express written consent of the Executive:
(i) a substantial alteration in the nature or status
of the title, position, duties or responsibilities of
Executive from those in effect immediately prior to the
change in control of the Company;
(ii) a reduction by the Company in the Executive's
salary as in effect on the date hereof or as the same may be
increased from time to time;
(iii) the relocation of the Company's principal
executive offices to a location outside the Dallas
Metropolitan Area or the Company's requiring the Executive to
be based anywhere other than the Company's principal
executive offices except for required travel on the Company's
business to an extent substantially consistent with the
Executive's business travel obligations prior to the change
in control of the Company;
(iv) the failure by the Company to continue in effect
any compensation plan in which the Executive was
participating immediately prior to the change in control, or
the failure by the Company to continue the Executive's
participation therein;
(v) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those
enjoyed by the Executive under any of the Company's employee
stock ownership, life insurance, medical, health-and-
accident, or disability plans, as well as vacation, travel
and club privileges in which the Executive was participating
at the time of a change in control of the Company or the
taking of any action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefits enjoyed by the
Executive immediately before the time of the change in
control of the Company; or
(vi) any purported termination of the Executive's
employment which is not effected in accordance with the
requirements of Section 8 and, for purposes of this
Agreement, no such purported termination shall be effective.
(d) Upon termination of the Employment Period pursuant to
Section 9(b) or 9(c), the Company shall pay to Executive in one
lump sum on the fifth (5th) day following such termination, cash
in an amount equal to the lesser of (i) the total compensation
provided for under this Agreement for the balance of the then
effective Employment Period and (ii) the amount that is one dollar
($1.00) less than the amount which would be deemed a "parachute
payment" to Executive under the Internal Revenue Code of 1986, as
amended, to be paid in consideration of Executive's election to
terminate his employment with the Company and to release in full
all rights as an employee of the Company.
(e) For purposes of this Agreement, a "change in control of
the Company" shall mean a change in control of a nature that would
be required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not the Company
is then subject to such reporting requirement, or any other actual
change in the control of the Company (whether by merger,
consolidation, acquisition of assets or stock or otherwise); provided that,
without limitation, such a change in control shall be deemed to
have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), of the
Company's common stock as of the date of this Agreement, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing more than twenty-five percent (25%) of the
combined voting power of the Company's then outstanding securities
entitled to vote in the election of directors, (ii) a change
occurs in ownership of more than twenty-five percent (25%) in book
value of the Company's assets, or (iii) during any period of two
(2) consecutive years, individuals who at the beginning of such
two year period constituted the Board of Directors of the Company,
including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still
in office who were directors at the beginning of the period
(collectively, "Pre-Change Directors"), cease for any reason to
constitute a majority of the Company's Board of Directors.
10. Intellectual Property Rights.
(a) Executive hereby assigns, transfers, and conveys his
entire right, title, and interest in any and all Intellectual
Property which he makes or conceives, whether as a sole inventor
or originator or as a joint inventor or originator with others,
whether made within or out of usual working hours or upon the
premises or elsewhere, during the Employment Period. Executive
understands that "Intellectual Property" as used herein includes
information of a technical or a business nature such as ideas,
discoveries, designs, inventions, improvements, trade secrets,
know-how, manufacturing processes, product formulae, design
specifications, writings and other works of authorship, computer
programs, financial figures, marketing plans, customer lists and
data, business plans or methods and the like, which relate in any
manner to the actual or anticipated business or the actual or
anticipated areas of research and development of the Company, or
its divisions, subsidiaries, Affiliates, or related entities.
(b) Either during or subsequent to Executive's employment,
upon the request and at the expense of the Company, and for no
remuneration in addition to that due Executive pursuant to this
Agreement, but at no expense to him, Executive agrees to execute,
acknowledge, and deliver to the Company, its nominee, or its
attorneys any and all instruments which in the judgment of the
Company, its nominee, or its attorneys may be necessary or
desirable to secure or maintain for the benefit of the Company or
its nominee adequate patent, copyright, and other property rights
in the United States and foreign countries with respect to any
Intellectual Property embraced within this Agreement, including
but not limited to: (1) domestic and foreign patents and
copyright applications, (2) any other applications for securing,
protecting, or registering any property rights embraced within
this Agreement, and (3) powers of attorney, assignments, oaths,
affirmations, supplemental oaths and sworn statements; and further
agrees to assist the Company, its nominee, or its attorneys as
required to draft said instruments, to obtain said rights, and to
enforce said rights.
(c) Executive further agrees to disclose to the Company
promptly in writing any and all ideas, designs, inventions,
improvements, and developments, when conceived or made in whole or
in part, by him and to maintain adequate and current records
thereof.
(d) Any ideas, designs, inventions, improvements, dis-
coveries, and developments disclosed by Executive within one year
following termination of his employment shall be deemed to have
been assigned, transferred, and conveyed under the terms of
paragraphs (a) and (b), unless proved to have been conceived after
termination.
11. Covenant Not to Disclose. Executive covenants and
agrees that he will not, at any time during or after the
termination of his employment by the Company, communicate or
disclose to any person, or use for his own account, or advise,
discuss with, or in any way assist any other person or firm in
obtaining or learning about, without the prior written consent of
the Company, information concerning any inventions, processes,
programs, systems, flow charts or equipment used in, or any secret
or confidential or proprietary information, trade secrets or know-
how (including, without limitation, any customer lists, trade
secrets or information concerning any work done by the Company for
its customers or done in an effort to solicit or obtain customers)
concerning, the products, services, business or affairs of the
Company or any of its Affiliates which is not generally available
to the public and which has become known to Executive at any time
he has been employed by the Company. Executive further covenants
and agrees that he shall retain all such knowledge and information
concerning the foregoing in trust for the sole benefit of the
Company and its Affiliates and their respective successors and
assigns. Upon termination of his employment with Company, all
documents, records, notebooks, and similar repositories of or
containing secret or confidential or proprietary information,
including copies thereof, then in Executive's possession, whether
prepared by him or others, will be left with Company.
12. Protection of Company Goodwill and Proprietary
Information
(a) The following provisions of this Agreement contain
substantial restrictions on Executive's post-employment
activities. As evidenced by his initials affixed to this and
subsequent pages, Executive acknowledges that he has read and
understands such provisions.
(b) Executive recognizes and acknowledges that the lists of
the Company's customers, as well as information pertaining to
customer personnel, product preferences and buying habits as such
lists or information may exist, whether same are ever actually
committed to writing or otherwise compiled in one or more docu-
ments, or are merely memorized by Executive, are also valuable,
special and unique assets of the Company's business. Executive
will not, during or after the term of this Agreement, disclose,
directly or indirectly any of said customer lists or information
of or pertaining to customers or any part thereof, to any person,
firm, corporation, association or other entity for any reason or
purpose whatsoever.
(c) Further, Executive agrees:
(i) that Executive shall not, during the one (1) year
period immediately following the date upon which his employ-
ment by Company is terminated, directly or indirectly, for
himself or for any other person, firm, corporation, associa-
tion or other entity, as an owner, independent contractor,
principal, agent, officer, director, partner, stockholder,
employee, consultant or otherwise, within any state of the
United States of America or any foreign country in which the
Company has sold goods or services within one (1) year prior
to such termination, sell, solicit or accept orders, or
assist or aid in the selling or solicitation or acceptance of
orders for products similar to or which can be used in
substitution for or replacement of the Company's to any party
with whom Executive had contact while in the employ of
Company and (A) who is or has been a customer or client of
the Company at the date of such termination or within a
period of one (1) year prior thereto, or (B) who has been
identified as a potential customer or client of the Company
as of the date of such termination;
(ii) that Executive shall not during the one (1) year
period immediately following the date upon which his employ-
ment or engagement by Company is terminated, directly or
indirectly, for himself or for any other person, firm,
corporation, association or other entity as owner,
independent contractor, principal, agent, officer, director,
partner, stockholder, employee, consultant or otherwise,
within any state of the United States of America or any
foreign country in which the Company has purchased or
obtained goods or services within one (1) year prior to such
termination, employ or attempt to employ, or engage or
attempt to engage, or solicit or encourage to leave the
employment of Company or otherwise cease, curtail or modify
his relationship with Company, any employee, salesman,
independent contractor or agent employed or engaged by
Company as of the date of Executive's termination, unless
such person's employment or engagement with Company shall
have been terminated by Company prior thereto or Company
shall have consented to such employment, engagement,
solicitation or encouragement in writing.
(d) While the restrictions set forth in this Section 12 are
considered by the parties to be reasonable in all circumstances,
it is agreed that if any of such restrictions shall be adjudged to
be void or ineffective for whatever reason, but would be adjudged
to be valid and effective if part of the wording thereof were
deleted or the periods thereof reduced, the said restrictions
shall apply with such modifications as may be necessary to make
the same valid and effective.
13. Essential Nature of Covenants. The existence of any
claim or cause of action of Executive against the Company or any
of its Affiliates, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by
the Company of the covenants contained in Sections 10, 11 and 12
hereof. Executive understands that the covenants contained in
Sections 10, 11 and 12 are essential elements of the transactions
contemplated by this Agreement and, but for the agreement of
Executive to Sections 10, 11 and 12, the Company would not have
agreed to enter into such transactions. Executive has had the
opportunity to consult with counsel and to be advised in all
respects concerning the reasonableness and propriety of Sections
10, 11 and 12 with specific regard to the nature of the business
conducted by the Company, and Executive acknowledges that Sections
10, 11 and 12 are reasonable in all respects.
14. Remedies. Notwithstanding Section 15 of this
Agreement, in the event of a breach or threatened breach by
Executive of Sections 10, 11 or 12, the Company shall be entitled
to obtain from any court having jurisdiction of the parties a
temporary restraining order and an injunction restraining
Executive from the commission of such breach. Nothing contained
in this Section 14 shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach
or threatened breach, including the recovery money damages.
15. Arbitration. Except as provided in Section 14 of this
Agreement, the Company and Executive agree to submit to binding
arbitration any controversy or claim arising out of or relating to
this Agreement or the breach thereof or any other matter relating
in any manner to the relationship between the Company and
Executive or the termination of such relationship or otherwise
arising from or relating to any practices or procedures of the
Company or conduct of the Company or its agents toward Executive,
including but not limited to tortious claims and statutory claims.
Such arbitration shall be conducted in the City of Dallas, Texas,
in accordance with the Model Employment Arbitration Procedures
then in effect or, if such have been repealed, the rules then
obtaining of the American Arbitration Association, and judgment
upon the award rendered may be entered in any court having
jurisdiction thereof.
16. Certain Arbitration Procedures.
(a) The parties shall cooperate to the fullest extent
practicable in the voluntary exchange of documents and information
to expedite any such arbitration. Any request for documents or
other information should be specific, relate to the matter in
controversy, and afford the party to whom the request is made a
reasonable period of time to respond without interfering with the
time set for the hearing.
(b) Document Production and Information Exchange.
(i) Any party may serve a written request for infor-
mation or documents ("information request") upon another
party twenty (20) business days or more after the non-
complaining party has received notice of the institution of
arbitration proceedings. The requesting party shall serve
the information request on all parties and file a copy with
the arbitrator(s). The parties shall endeavor to resolve
disputes regarding an information request prior to serving
any objection to the request. Such efforts shall be set
forth in the objection.
(ii) Unless a greater time is allowed by the requesting
party, information requests shall be satisfied or objected to
within thirty (30) calendar days from the date of service.
Any objection to an information request shall be served by
the objecting party on all parties and filed with the
arbitrator(s).
(iii) Any response to objections to an information re-
quest shall be served on all parties and filed with the
arbitrator(s) within ten (10) calendar days of receipt of the
objection.
(iv) Upon the written request of a party whose infor-
mation request is unsatisfied, the matter will be referred by
the arbitrator(s) to either a pre-hearing conference under
subsection (d) of this section or to a selected arbitrator
under subsection (f) of this section.
(c) At least ten (10) calendar days prior to the first
scheduled hearing date, all parties shall serve on each other
copies of documents in their possession they intend to present at
the hearing and shall identify witnesses they intend to present at
the hearing. The arbitrators may exclude from the arbitration any
documents not exchanged or witnesses not identified. This
paragraph does not require service of copies of documents or
identification of witnesses which parties may use for cross-
examination or rebuttal.
(d)(i) Upon the written request of a party or an arbitrator,
a pre-hearing conference shall be scheduled. The arbitrator(s)
shall set the time and place of a pre-hearing conference and
appoint a person to preside. The pre-hearing conference may be
held by telephone conference call. The presiding person shall
seek to achieve agreement among the parties on any issue which
relates to the pre-hearing process or to the hearing, including
but not limited to exchange of information, exchange or production
of documents, identification of witnesses, identification and
exchange of hearing documents, stipulation of facts,
identification and briefing of contested issues, and any other
matters which will expedite the arbitration proceedings.
(ii) Any issues raised at the pre-hearing conference that
are not resolved may be referred to a single member of the
arbitration panel for decision.
(e) The arbitrator(s) shall apply such rules of procedure
in addition to the preceding rules as the arbitrator(s) think
appropriate under the circumstances, provided that both parties
shall be entitled to representation by counsel, to appear and
present written and oral evidence and argument, and to cross-
examine witnesses presented by the other party, and the
arbitrator(s) shall provide written reasons for the determination
rendered.
(f) The arbitrators (if more than one) may appoint a single
member of the arbitration panel to decide all unresolved issues
under this Section 16. Such arbitrator shall be authorized to act
on behalf of the panel to issue subpoenas, direct appearances of
witnesses and production of documents, set deadlines for compli-
ance, and issue any other ruling which will expedite the arbitra-
tion proceedings. Decisions under this section shall be made upon
the papers submitted by the parties, unless the arbitrator calls a
hearing. The arbitrator may elect to refer any issue under this
section to the full panel.
17. Miscellaneous.
(a) Waiver of Breach. The waiver by the either party of a
breach of any provision of this Agreement by the other party shall
not operate nor be construed as a waiver of any subsequent breach
by the other party.
(b) Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective successors, assigns, heirs and legal representatives.
(c) Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the construction
or interpretation of this Agreement.
(d) Severability. Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibi-
tion or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(e) Governing Law. This Agreement shall be construed (both
as to validity and performance) and enforced in accordance with
and governed by the laws of the State of Texas.
(f) Notice. All notices which are required or may be given
under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person or three (3) days
after being mailed by registered or certified first class mail,
postage prepaid, return receipt requested, at the address listed
above for such party, or to such other address as such party shall
have specified by notice to the other party hereto as provided in
this Section.
(g) Entire Agreement. Except as specifically set forth
below, this Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
(h) Amendment. This Agreement may not be changed orally,
but only in writing signed by the party against whom enforcement
of any waiver, change, modification, extension, or discharge is
sought.
(i) Limitations. No suit, action, arbitration or other
proceeding based upon or arising out of this Agreement shall be
maintainable in any court of law or equity or before any arbitra-
tor(s) or other adjudicator(s) unless the same be commenced within
two (2) years after the calendar date upon which the claim giving
rise to such suit, action, arbitration or other proceeding arose.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and date first above written.
ARROW-MAGNOLIA INTERNATIONAL, INC.
By:
Print Name:
Title:
FRED KENNER
