Exhibit 10.11
EMPLOYMENT AGREEMENT OF XXXXX XXXXX
AGREEMENT made as of this 1st day of June, 1998 by and between
Norton Motors International Inc., a Minnesota corporation, with offices at 00000
00xx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 52447- 4910 (hereinafter called the
"Company") and Xxxxx Xxxxx, residing at c/o the Aquilini Investment Group, 0000
Xxxx 00xx Xxxxxx Xxxxxxxxx, XX Xxxxxx X0X000 (hereinafter called "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ Executive and Executive
is willing to undertake such employment on the terms and subject to the
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Employment. For the period commencing on the date hereof
and ending on the first anniversary of the date hereof, unless extended by
written agreement between the Company and Executive, the Company hereby employs
Executive to render the services as Chief Executive Officer of the Company to
perform such duties on behalf of the Company as the Board of Directors of the
Company may from time to time determine consistent with his position with the
Company.
2. Duties. Executive hereby accepts such employment and agrees
that throughout the period of his employment hereunder, except as may otherwise
be approved in advance by the Board of Directors of the Company or permitted
below, and except during vacation periods and reasonable periods of absence due
to sickness, personal injury or other disability, Executive shall devote such
time, attention, knowledge and skills throughout the Employment Term (as defined
below) to the performance of the services required of him hereunder in
furtherance of the business of the Company. Executive shall render his services
to the Company during the Employment Term and shall use his best efforts,
judgment and energy to improve and advance the business and interests of the
Company in a manner consistent with the duties of his position and his other
obligations. Executive shall at all times be subject to, observe and carry out
such rules, regulations, policies, directions and restrictions as the Company
shall from time to time establish. Notwithstanding the foregoing, Executive is
an Executive Vice President for Aquilini Investment Group and will continue to
hold such position and perform the duties of such position during the Employment
Term.
3. Term. Executive shall be employed for the period set forth
in Section 1 unless his employment is earlier terminated pursuant to the
provisions of Section 7 hereof (the "Employment Term").
4. Compensation. As full compensation for his services
hereunder, the Company shall pay to Executive $1.00 and shall issue to Executive
options to purchase 100,000 shares of Common Stock of the Company, immediately
exercisable, at an exercise price of $4.00 per share, which options shall
terminate on the fifth anniversary of the date hereof.
The payment of any salary or commissions hereunder shall be
subject to income tax, social security and other applicable withholdings as well
as such deductions as may be required under the Company's employee benefit
plans.
5. Benefits. During the Employment Term, Executive shall be:
(a) eligible to participate in any medical and
health plans or other employee welfare benefit plans that may be provided by the
Company for its employees generally in accordance with the provisions of any
such plans, as the same may be in effect on and after the date hereof, provided
that Executive shall be provided with health insurance for him and his family
substantially equivalent to that which is currently in place; and
(b) entitled to reimbursement for all reasonable
and necessary out-of-pocket business expenses and telephone usage, incurred by
Executive in the performance of his duties hereunder on behalf of the Company.
Except as specifically provided herein, Executive shall
receive no other benefits or other compensation.
6. Non-Competition Non-Disclosure. Executive hereby covenants,
agrees and acknowledges as follows:
(a) In partial consideration of the consideration
paid under this Employment Agreement, including but limited to, the benefits
outlined above, Executive agrees that during the Employment Term and for a
period of 12 months thereafter, he shall not, either personally or through an
employer, firm, agent, servant, employee, partner, shareholder, representative,
affiliate or any other entity:
(i) Deliver products or services or attempt to
deliver products or services which are of
the same type or nature as those which
Executive provided or offered, during his
employment under this Employment Agreement,
to any
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customer of the Company, except as
specifically provided herein, without prior
written consent of the Company. The
Company's products and services shall be
defined for these purposes to include those
products and services offered by the Company
during Executive's employment with the
Company and for a period of 12 months
following the termination of the Executive's
employment with the Company.
(ii) Employ or offer to employ any individual
employed by the Company within the four (4)
months proceeding the termination of
Executive's employment or request, advise,
or entice any such individual to leave the
employment of the Company.
(b)
(i) Executive agrees that any information
related to the business of the Company, or
of any of the Company's clients or
customers, which is acquired by Executive
during his employment by the Company, shall
be regarded as confidential and solely for
the proprietary benefit of the Company.
Executive shall not, except as is necessary
in the ordinary course of conducting
business for the Company, use such
information for himself or disclose such
information to any other person or entity
directly or indirectly, either during the
Employment Term, or any time thereafter,
unless he obtains the prior written approval
of the Company.
(ii) Executive shall not remove any records or
documents from the premises of the Company
or the Company's clients or customers in
either original, duplicate, or copied form,
except as is necessary in the ordinary
course of conducting business for the
Company and subject to the approval of the
Company's management person with the
authority to act upon such matters.
Executive shall immediately deliver to the
Company, upon termination of his employment
with the Company, or at any other time upon
the Company's request, any such records or
documentation in Executive's possession or
control.
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(c) Executive further agrees that in the event he
breaches any of the covenants contained in this Section 6, irreparable harm will
result to the Company, that the Company's remedy at law will be inadequate, and
that the Company will be entitled to an injunction to restrain any continuing
breach of this Employment Agreement by Executive, his partners, agents,
servants, employees, or representatives, or any other persons or entities acting
for or with him. The Company shall, without limitation, be entitled to damages,
reasonable attorneys' fees, and any other costs and expenses incurred in
connection with the enforcement of this Section 6, in addition to any other
rights or remedies which the Company may have at law or in equity.
7. Early Termination. The Company may at any time terminate
Executive for any of the following circumstances:
(a) By mutual agreement of the Company and the Executive
(b) Upon the death of the Executive;
(c) Upon the voluntary termination of this Agreement by
the Company or the Executive.
In the event the Employment Term is terminated by either the Company or
Executive, the Company shall pay Executive all amounts accrued and unpaid
pursuant to Section 4 through the date of such termination, and shall have no
further obligation to Executive. Following any such termination hereunder,
Executive shall retain all options granted to him under this Agreement.
8. Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and assigns.
9. Severability. Executive agrees that in the event that any
court of competent jurisdiction shall finally hold that any provision of Section
6 hereof is void or constitutes an unreasonable restriction against Executive,
such provision shall not be rendered void but shall still apply to such extent
as such court may judicially determine constitutes a reasonable restriction
under the circumstances. If any part of this Agreement other than Section 6 is
held by a court of competent jurisdiction to be invalid, illegal or incapable of
being enforced in whole or in part by reason of any rule of law or public
policy, such part shall be deemed to be severed from the remainder of this
Agreement for the purpose only of the particular legal proceedings in question
and all other covenants and provisions of this Agreement shall in every other
respect continue in full force and effect and no covenant or provision shall be
deemed dependent upon any other covenant or provision.
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10. Waiver. Failure to insist upon strict compliance with any
of the terms, covenants or conditions hereof shall not be deemed a waiver of
such term, covenant or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
11. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto and no amendment or modification hereof shall be
valid or binding unless made in writing and signed by the party against whom
enforcement thereof is sought.
12. Notice. Any notice required, permitted or desired to be
given pursuant to any of the provisions of this Agreement shall be deemed to
have been sufficiently given or served for all purposes if delivered in person
or sent by certified mail, return receipt requested, postage and fees prepaid to
the parties at their addresses set forth above. Either of the parties hereto may
at any time and from time to time change the address to which notice shall be
sent hereunder by notice to the other party given under this Section 13. The
date of the giving of any notice sent by mail shall be the date of the posting
of the mail.
13. Choice of Law. This Agreement and the legal relations
between the parties hereto shall be governed by and in accordance with the laws
of the State of Minnesota, without regard to principles of conflicts of law.
14. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the day and year first above written.
NORTON MOTORS INTERNATIONAL INC., a
Minnesota corporation
By:
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