{"id":39373,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-miami-computer-supply-inc-and-thomas-c.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-miami-computer-supply-inc-and-thomas-c","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-miami-computer-supply-inc-and-thomas-c.html","title":{"rendered":"Employment Agreement &#8211; Miami Computer Supply Inc. and Thomas C. Winstel"},"content":{"rendered":"<pre> \n \n\n\n                              EMPLOYMENT AGREEMENT\n\n     This Employment Agreement (\"Agreement\") is made and entered into this 30th\nday of May, 1996, by and between MIAMI COMPUTER SUPPLY, INC. (the \"Company\") and\nTHOMAS C. WINSTEL (the \"Executive\").\n\n                                   WITNESSETH:\n\n     WHEREAS, the Company desires to employ the Executive and the Executive\ndesires to be employed by the Company;\n\n     NOW, THEREFORE, upon the terms and conditions hereinafter set forth, it is\nhereby agreed between the parties as follows:\n\nI. DUTIES\n\n     A. Upon the terms and subject to the conditions of this Agreement, the\nCompany hereby employs the Executive as Vice President of the Company, and the\nExecutive hereby accepts said employment.\n\n     B. The Executive's employment with the Company shall be full time provided,\nhowever, that he shall not be restricted from the pursuit of other business\ninterests, hobbies, or interests which neither compete nor interfere with his\nduties on behalf of the Company.\n\n     C. The Executive's areas of responsibility shall be as directed by the\nBoard of Directors and the President of the Company, and may include certain\naspects of the Company's business, including but not limited to, the sale of\ncomputer supplies to various \"key accounts\" located in the Dayton, Ohio\nmetropolitan area, management of the Presentation Products Division, to include\nboth sales and operations and any other duties specified by the Board of\nDirectors. The Executive shall, from time to time and as requested, report to\nthe Board of Directors with respect to his activities. The Executive agrees to\nexercise his duties and responsibilities hereunder in good faith, with\nreasonable diligence, and in accordance with sound business practice.\n\n     D. The Executive shall devote his full business time and efforts and all\nreasonable energy and skill to the business of the Company and shall use his\nbest efforts to promote the interest thereof. The Executive's services shall be\nrendered with due regard for the prompt, efficient and economical operation of\nthe business of the Company.\n\n     E. Except for occasional business trips which may be necessary or desirable\nin connection with the performance of the Executive's duties, the Executive\nshall not be required, without his consent, which shall not be unreasonably\nwithheld, to perform any duties at any location outside of a one hundred (100)\nmile radius from Dayton, Ohio.\n\n\n\n\nWinstel Employment Agreement\nPage 2\n\nII. TERMS AND CONDITIONS OF EMPLOYMENT\n\n     A. This Agreement shall commence on the date hereof and shall terminate on\nthe earliest to occur of:\n\n          1. December 31, 1999;\n\n          2. The death of the Executive; or\n\n          3. On written notice of termination from the Company to the Executive,\nwhich notice may be given only on or after there shall have elapsed a\nconsecutive period of 90 days, (or a non-consecutive period of 120 days during\nany twelve month period) during which the Executive was physically or mentally\nincapacitated and unable to perform his duties hereunder.\n\n     B. In addition to the events described in the foregoing Section II.A., the\nCompany shall be entitled to terminate this Agreement upon written notice to the\nExecutive:\n\n          1. For cause, which for purposes of this Agreement shall mean the\nrefusal to perform, or the substantial neglect of, or an intentional failure to\nperform, a material portion of the Executive's duties and obligations on behalf\nof the Company, which actions or inactions are not reasonably cured within ten\n(10) days after receipt of written notice from the Company with respect thereto;\nwillful misconduct; breach of a fiduciary duty involving personal gain; any\nmaterial breach of this Agreement; or\n\n          2. If the Executive has been convicted of a felony or a crime\ninvolving moral turpitude, theft, fraud, embezzlement, intentional or reckless\nconversion or destruction of Company funds or assets.\n\n     C. The Executive shall have the right to terminate this Agreement upon\nreasonable notice to Company:\n\n          1. For cause, which for purposes of this Agreement shall mean the\nfailure of the Company to provide resources which are necessary to the\nfulfillment of the Executive's responsibilities, and which failure(s) are not\nreasonably cured within ten (10) days after receipt of written notice hereof\nfrom the Executive;\n\n          2. Upon the express direction of the Board of Directors to perform any\naction or inaction which, in the reasonable opinion of the Executive and upon\nwritten advice of his counsel is illegal;\n\n\n\n\nWinstel Employment Agreement\nPage 3\n\n          3. Upon the threatened or actual insolvency or receivership of the\nCompany not caused by any action or inaction of the Executive; or\n\n          4. Upon the failure of the Company to perform its obligations to\nExecutive as set forth in this Agreement.\n\n     D. Termination in accordance with any of the foregoing provisions of\nSections II.A., B. or C. above shall be effective on the date applicable to the\nparticular termination section referred to above (the \"Termination Date\"), and\nfrom and after such date, this Agreement shall be of no further force and\neffect; provided, however, that no such termination shall affect a party's\nrights to seek damages or other relief in respect of a breach by the other party\nof his or its obligations under this Agreement and, no such termination shall\naffect the Company's rights under Sections IV. and V., herein, or the\nExecutive's rights under Section III. hereof with respect to any compensation\naccrued or stock vested through such date of termination. For purposes of this\nAgreement and as used anywhere herein, the phrase \"fully and finally terminated\nfor cause\" or \"fully and finally terminate\" shall mean the later of thirty (30)\ndays from the date of receipt of written notice of termination from one party to\nthe other, or the date of a final decision as a result of the Alternative\nDispute Resolution (\"ADR\") format set forth in Section IX. of this Agreement.\n\nIII. BASE SALARY\n\n     A. Executive shall be paid a base salary of $3,000.00 per month (\"Base\nSalary\") plus a commission in the amount of 40% of the Gross Margin of computer\nsupply sales to current assigned \"key accounts\" as set forth on the list\nattached hereto as Exhibit A. (Gross Margin is defined herein to mean the\ndifference between the unit sales invoice price and the actual dollar cost of\nthe product to the Company.) Executive's monthly compensation shall also include\na commission of 5% of the Gross Margin on sales of all products in the\nPresentation Products Division.\n\n     B. Executive will be furnished an automobile (up to $35,000, 1996 value)\nand insurance, repairs, gas, oil, fees, etc., and such other per diem\nallowances, as approved by the Board of Directors, equaling no more than $1,200\nper month for his use for Company business. The Company shall also pay for\nExecutive's annual medical examination in an amount not to exceed $900 per year\nand for a Social Membership for \"Country Club of the North\" which will require\nan initiation fee of approximately $5,000 and an annual membership fee of $900.\n\n     C. Executive will be able to take up to six (6) weeks vacation per year.\n\n     D. During the term of the Agreement, Executive shall be entitled to\nparticipate in and receive the benefits of any pension or other retirement\nbenefit plan, profit sharing, stock option,\n\n\n\n\nWinstel Employment Agreement\nPage 4\n\nemployee stock ownership, or other plans, benefits and privileges given to\nemployees and executives of the Company, to the extent commensurate with his\nthen duties and responsibilities, as fixed by the Board of Directors of the\nCompany. The Company shall not make any changes in such plans, benefits or\nprivileges which would adversely affect Executive's rights or benefits\nthereunder, unless such change occurs pursuant to a program applicable to all\nexecutive officers of the Company and does not result in a proportionately\ngreater adverse change in the rights of or benefits to Executive as compared\nwith any other executive officer of the Company. Nothing paid to Executive under\nany plan or arrangement presently in effect or made available in the future\nshall be deemed to be in lieu of the Base Salary payable to Executive pursuant\nto Section III.A. hereof.\n\n     E. In addition to the foregoing, the Executive shall at all times during\nthe period of the Executive's employment under this Agreement be eligible to\nparticipate in and to be covered by all plans, if any, effective generally with\nrespect to executives of the Company with respect to life insurance, accident\ninsurance, health insurance, hospitalization, disability, and other benefits of\nwhatsoever kind or description, to the extent the Executive is eligible under\nthe terms of such plans, on the same basis as other executives of the Company\nand without restriction or limitation by reason of this Agreement. The Executive\nshall be entitled to all of the fringe benefits and perquisites of office of\nwhatsoever kind or description made available generally to other executives of\nthe Company, including, but not limited to, customary paid holidays, without\nrestriction or limitation by reason of any specific benefit provided for in this\nAgreement.\n\n     F. The Company shall pay or reimburse the Executive for all reasonable\nout-of-pocket expenses incurred or paid by him in connection with the\nperformance of his duties under this Agreement, upon presentation of expense\nstatements or vouchers or such other supporting information as the Company may\nreasonably require.\n\nIV. VALUATION OF SHARES UPON TERMINATION\n\n     A. If Executive is terminated for cause prior to December 31, 1999, and\nprovided that Company's shares are not publicly traded on the Termination Date,\nthen Company, at its sole option exercised by written notice to Executive thirty\n(30) or more days from the date of Executive's full and final termination, shall\nbe entitled to mandate that Executive's entire equity interest in the Company be\nredeemed. The value of the Executive's equity interest in the Company shall be\nnot less than 70% of the per share purchase price as set forth in the Stock\nPurchase Agreement by and among Pittsburgh Investment Group LLC, the Company,\nthe Executive and other former stockholders of the Company dated April 25, 1996,\nas amended. In the event that Executive and Company cannot agree upon the value\nof Executive's redeemable equity interest, then such issue shall be resolved\npursuant to ADR as set forth in Section IX. of this Agreement. All monies due\nand owing pursuant to this Section IV.A. to Executive shall be\n\n\n\n\nWinstel Employment Agreement\nPage 5\n\nfully paid within thirty (30) days of the date of the ADR decision or of the\ndate set forth in a written agreement of the parties whichever shall first\noccur.\n\n     B. If Executive terminates this Agreement for cause or is himself fully and\nfinally terminated for cause prior to December 31, 1999, and the Company's\nshares are publicly traded, then and in such event, Executive shall not be\nrestricted hereby in the disposition of his entire equity interest in the\nCompany, subject to applicable federal and state securities laws.\n\n     C. If Executive terminates this Agreement for cause prior to December 31,\n1999, and provided that the Company's shares are not publicly traded, then\nExecutive, at his option exercised by written notice to the Company within\nthirty (30) days from the date of full and final termination, shall be entitled\nto have his entire interest in the Company redeemed. In the event that Executive\nand Company cannot agree upon the value of Executive's redeemable interest, then\nsuch issue shall be resolved pursuant to ADR as set forth in Section IX. of this\nAgreement. All monies due and owing to Executive shall be fully paid within\nthirty (30) days of the date of the ADR decision or of the date set forth in a\nwritten agreement of the parties whichever shall first occur.\n\n     D. In the event that this Agreement is terminated as a result of\nExecutive's death, and in the further event that the Company's shares shall not\nbe publicly traded at such time, then the value of the deceased's interest in\nthe Company shall be established by agreement between the Company and authorized\nrepresentatives of Executive's estate. In the event that no such agreement can\nbe reached, the parties shall submit the unresolved issues to ADR pursuant to\nSection IX. of this Agreement.\n\n     E. In the event Executive is permanently disabled (as defined by standard\ndisability insurance policies) and is unable to reasonably perform the aggregate\nof his assigned responsibilities and this Agreement is terminated as a result\nthereof, and in the further event that the Company's shares shall not be\npublicly traded at such time, then the Company, at its sole option exercised by\nwritten notice within thirty (30) days after the Date of Termination, may\nrequire the redemption of Executive's equity interest in the Company. In the\nevent that the Company and Executive (or his legally appointed representatives)\ncannot agree on the value of Executive's equity interest, then such issue shall\nbe resolved pursuant to ADR as set forth in Section I.X. of this Agreement. All\nmonies due and owing to Executive shall be fully paid within thirty (30) days of\nthe date of the ADR decision or of the date set forth in a written agreement of\nthe parties whichever shall first occur.\n\n\n\n\nWinstel Employment Agreement\nPage 6\n\nV. NON-COMPETITION\n\n     A. 1. The Company has disclosed to Executive its confidential business\nplans, marketing strategies, advertising copy, funding sources, wholesale and\nretail customer lists, equipment sources, financial projections and results and\nother information in the course of Executive's occupation as a Vice President of\nthe Company. This information and similar information yet to be developed by the\nExecutive is generally unknown to the pubic and gives the Company a competitive\nadvantage over those who do not have access to this information. The Company has\ntaken and will take care to protect this information from becoming generally\nknown. The Company has revealed this information to the Executive on the\ncondition that he keep it confidential and will require confidentiality from the\nExecutive and all other persons with access to the information in the future.\nThe information described above, therefore, constitutes valuable trade secrets\nof the Company and is referred to below as \"Proprietary Information.\" In the\ncourse of performing his duties under this Agreement, the Executive will both\nhelp develop and be privy to Proprietary Information.\n\n     2. The Company has and shall retain all exclusive rights in the Proprietary\nInformation. During the term of this Agreement and any extension hereof and for\nso long after its termination or expiration as permitted by law, Executive shall\nnot disclose Proprietary Information to any third party or make any commercial\nor academic use of the Proprietary Information without the express written\nconsent of the Company, which consent may be withheld for any or no reason in\nthe Company's sole discretion.\n\n     3. These restrictions on the use and disclosure of Proprietary Information\nshall survive the expiration or termination of this Agreement, regardless of the\ngrounds or lack of grounds therefor. The parties recognize and agree that, in\nthe event of a threatened or actual breach of this Section V.A., the Company's\nremedy at law will be inadequate to fully compensate the Company for its losses.\nTherefore, the Company may enforce its rights hereunder by equitable remedies,\nincluding without limiting the generality of the foregoing, injunctive relief\nand specific performance.\n\n     B.1. During the term of this Agreement and for twelve (12) months after the\nTermination Date, Executive hereby covenants and agrees that the Executive (and\nany person or entity controlled by, under common control with or controlling the\nExecutive) will not sell or distribute or be financially or otherwise associated\nwith anyone that sells or distributes computer supplies in an area within a one\nhundred (100) mile radius of any existing office of the Company. For purposes of\nthis Section V.B.1., \"control\" (including, with correlative meanings, the terms\n\"controlled by\" and \"under common control with\"), as used with respect to any\nperson or entity, shall mean the possession, directly or indirectly, of the\npower to direct or cause the direction of the activities, affairs, management or\npolicies of such person or entity, whether through personal relationship, the\nownership of voting securities or by contract or otherwise.\n\n\n\n\nWinstel Employment Agreement\nPage 7\n\n     2. The Executive agrees that in the event that the Executive commits a\nbreach or threatens to commit a breach of any of the provisions of this Section\nV.B., the Company shall have the right and remedy to have the provisions of this\nSection V.B. specifically enforced by any court having jurisdiction, it being\nacknowledged and agreed that any such breach or threatened breach will cause\nimmediate irreparable injury to the Company and that money damages will not\nprovide an adequate remedy at law for any such breach or threatened breach. Such\nright and remedy shall be in addition to, and not in lieu of, any other rights\nand remedies available to the Company at law or in equity.\n\n     3. If any of the provisions of or covenants contained in this Section V.B.\nare hereafter construed to be invalid or unenforceable in any jurisdiction, the\nsame shall not affect the remainder of the provisions or the enforceability\nthereof in any other jurisdiction, which shall be given full effect, without\nregard to the invalid portions or the unenforceability in such other\njurisdiction because of the duration or geographic scope thereof, the parties\nagree that the court making such determination shall have the power to reduce\nthe duration and\/or geographic scope of such provision or covenants and, in its\nreduced form, said provision or covenant shall be enforceable; provided,\nhowever, that the determination of such court shall not affect the\nunenforceability of this Section V.B. in any other jurisdiction.\n\nVI. ENTIRE AGREEMENT\n\n     This Agreement constitutes the entire agreement as to the subject matter\nhereof and there are not terms other than those contained herein. No variation\nhereof or amendment hereto shall be deemed to be a valid unless in writing and\nsigned by the parties hereto. No waiver by either party of any provision or\ncondition of this Agreement by him or it to be performed shall be deemed to be a\nwaiver of similar or dissimilar provisions or conditions at the same or any\nprior or subsequent time.\n\nVII. BINDING EFFECT\n\n     This Agreement shall inure to the benefit of and be binding upon the\nCompany, its successors and assigns, and the Executive, his heirs, executors,\nadministrators and legal representatives.\n\nVIII. GOVERNING LAW\n\n     This Agreement shall be governed by and construed in accordance with the\nlaws of the State of Ohio. However, all disputes between the parties shall be\nresolved by ADR in the jurisdiction wherein the Executive is domiciled.\n\n\n\n\nWinstel Employment Agreement\nPage 8\n\nIX. ALTERNATIVE DISPUTE RESOLUTION\n\n     A. The parties agree that it is in their best interests to resolve all\ndisputes or controversies arising out of this Agreement in a cost effective and\ntimely manner. Therefore, all such unresolved disputes or controversies shall be\ndetermined through a format of ADR, to be mutually agreed upon between the\nparties. All ADR determinations shall be final and binding upon the parties\nunless otherwise agreed in writing.\n\n     B. In the event that the parties are unable to agree on an ADR format,\ndispute resolution shall take place through the American Arbitration Association\nor, if agreed, another mutually acceptable ADR organization.\n\nX. INDEMNIFICATIONS; WITHHOLDING\n\n     A. The Company shall fully indemnify and hold harmless Executive from any\nand all claims, demands, judgments, liens, subrogation, or costs incurred by\nExecutive with respect to any shareholder derivative action or other claims or\nsuits against Company and\/or its Board of Director by individuals, firms, or\nentities not a party to this Agreement to the extent permitted by the Company's\nArticles of Incorporation, Bylaws and applicable corporate law.\n\n     B. The Company shall provide Executive with a policy of insurance during\nthe term of Executive's employment which covers errors and omissions of the\nExecutive while in the course and scope of his employment with the Company or\nits affiliates or divisions, if such policy is obtainable and the premium\ntherefore is commercially reasonable, in the sole discretion of the Board of\nDirectors.\n\n     C. All payments required to be made by the Company hereunder to the\nExecutive shall be subject to the withholding of such amounts, if any, relating\nto tax and other payroll deductions as the Company may reasonably determine\nshould be withheld pursuant to any applicable law or regulation.\n\nXI. NOTICES\n\n     A. Any notices or other communication required or permitted hereunder shall\nbe sufficiently given if sent by registered mail or certified mail, postage\nprepaid, addressed, if to the Executive, to him at 368 Lincoln Circle,\nBeavercreek, Ohio 45385, and if to the Company, to it at 3884 Indian Ripple\nRoad, Dayton, Ohio 45440, Attention: President.\n\n     B. For purposes of all notices to be given pursuant to or arising out of\nthis Agreement including a demand for ADR, a party will be presumed to have\nreceived written notice on the date of the actual receipt thereof.\n\n\n\n\nWinstel Employment Agreement\nPage 9\n\n     IN WITNESS WHEREOF, the Company and the Executive have set their hands on\nthe date above written.\n\n\n\nATTEST:\n\n\n\/s\/ Rochelle T. Hayes                   By: \/s\/ Thomas C. Winstel\n- ---------------------                      ----------------------\n                                        Thomas C. Winstel\n                                        \"Executive\"\n\n\n                                        MIAMI COMPUTER SUPPLY, INC.\nATTEST:\n\n\n\/s\/ Rochelle T. Hayes                   By: \/s\/ Al Schwarz\n- ---------------------                      ---------------\n                                        Name:  Albert L. Schwarz\n                                        Title: President\n                                               \"Company\"\n\n\n\n\n                                    EXHIBIT A\n\n                             WINSTEL \"KEY ACCOUNTS\"\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8168],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9544],"class_list":["post-39373","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mcsi-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39373","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39373"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39373"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39373"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39373"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}