MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT is entered into effective as of January 1,
2000 by and between NORTHSTAR COMPUTER FORMS, INC., a Minnesota corporation
(the "Company"), and XXXX XXX XXXXX ("Xxxxx").
WITNESSETH:
WHEREAS, Xxxxx is a key member of the management of the Company and
has heretofore devoted substantial skill and effort to the affairs of the
Company, and the Board of Directors of the Company (the "Board") desires to
recognize the significant personal contribution that Xxxxx has made to
further the best interests of the Company and its shareholders;
WHEREAS, it is desirable and in the best interests of the Company and
its shareholders to continue to obtain the benefits of Xxxxx'x continued
services and attention to the affairs of the Company;
WHEREAS, Xxxxx and the Company are parties to an Employment Agreement
dated as of January 3, 1989 (the "Existing Employment Agreement"), and the
parties desire that this Management Agreement terminate the Employment
Agreement and provide for the terms and conditions of Xxxxx'x continued
employment;
WHEREAS, it is desirable and in the best interests of the Company and
its shareholders to provide inducement for Xxxxx (i) to remain in the service
of the Company in the event of any proposed or anticipated change in control
of the Company and (ii) to remain in the service of the Company in order to
facilitate an orderly transition in the event of a change in control of the
Company; and
WHEREAS, the parties acknowledge that the terms and provisions of this
Agreement, including the severance package, stock options and change in
control payments contained herein, provide separate and valuable
consideration for the Non-Compete Covenant contained herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the Company and Xxxxx agree as
follows:
1. EMPLOYMENT. Xxxxx agrees to continue to serve as a full-time
employee of the Company in the capacity of Chief Financial Officer. Xxxxx
agrees to faithfully and diligently perform the acts and duties of her office
and devote her best efforts on a full-time basis. Xxxxx shall also perform
such other duties as are consistent with her position, as are reasonably
assigned to her by the Board of Directors of the Company (the "Board").
2. EMPLOYMENT PERIOD. The term of Xxxxx'x employment under this
Agreement will begin immediately and end on December 31, 2004, unless
extended by mutual agreement
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or sooner terminated by one of the parties pursuant to the provisions of
Section 4 hereof (the "Employment Period").
3. COMPENSATION AND RELATED MATTERS. The Company shall pay Xxxxx
compensation and benefits as follows:
(a) BASE COMPENSATION. During the Employment Period, the Company shall
pay to Xxxxx an annual base salary of $110,000. Xxxxx'x salary may be
further reviewed and adjusted periodically (upward, but not downward) as
determined by the Compensation Committee of the Board (the "Compensation
Committee") and adopted by the Board.
(b) BONUS. Xxxxx shall also be entitled to a bonus from time to time in
the discretion of the Compensation Committee and/or the Board.
(c) STOCK OPTIONS. Xxxxx shall also be entitled to receive stock options
(the "Options") pursuant to the Company's 1994 Employees' Incentive Stock
Option Plan (the "Plan") or otherwise in the discretion of the Compensation
Committee and/or the Board.
(d) PARTICIPATION IN BENEFITS. During the Employment Period, Xxxxx shall
be entitled to participate in employee benefits offered generally by the
Company to its employees, to the extent that Xxxxx'x position, tenure,
salary, health, and other qualifications make her eligible to participate.
Xxxxx'x participation in such benefits shall be subject to the terms of the
applicable plans, as the same may be amended from time to time. Following
the termination of her employment, Xxxxx (or any of her dependents
participating in such coverage) shall have the right to purchase health
care coverage through the Company's health benefit plan as a retiree (or
dependent of a retiree) at a rate equal to the average per employee cost
incurred by the Company until Xxxxx (or such dependent) reaches Medicare
eligibility.
(e) EXPENSES. During the Employment Period, Xxxxx shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by Xxxxx
in performing services hereunder; provided, however, that Xxxxx complies
with the Company's policies and procedures established from time to time to
document such expenses.
(f) VACATION AND OTHER BENEFITS. Xxxxx shall be entitled to such paid
vacation and other benefits as shall be in effect from time to time for
senior executive officers of the Company.
4. TERMINATION AND COMPENSATION DUE ON TERMINATION. Xxxxx'x employment
hereunder may be terminated subject to the following provisions and obligations:
(a) DEATH OR DISABILITY. Xxxxx'x employment hereunder shall terminate
upon her death, or in the event that Xxxxx becomes disabled by reason of a
medical condition (physical or non-physical) pursuant to which she cannot
timely perform the material duties of her position with the Company (such
determination to be based on Xxxxx'x qualifying for disability benefits
under her long-term disability insurance policy with the
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Company), and no further payment of salary, any benefits or other payment
in connection with Xxxxx'x employment shall be due from the Company to
Xxxxx or Xxxxx'x estate under this Agreement thereafter, except for salary
and bonus (if any) accrued, and Options vested through the date of death
or disability.
(b) CAUSE. The Company may terminate Xxxxx'x employment hereunder for
"Cause," which shall mean (i) fraud, dishonesty, gross negligence, or
willful malfeasance by Xxxxx in connection with the performance of her
duties hereunder, (ii) conviction of Xxxxx of a felony, (iii)
insubordination or other substantial failure, refusal or negligence by
Xxxxx in fulfilling her duties and obligations hereunder, which breach or
failure Xxxxx fails to remedy within ten (10) days after written demand
from the Board, or (iv) violation of the terms and conditions of this
Agreement, including without limitation, the Non-Compete Covenant provided
in Section 8 hereof. In the event that Xxxxx'x employment is terminated
hereunder for Cause, the Company shall have no further obligations to Xxxxx
in connection with Xxxxx'x employment except for salary accrued through the
date of termination.
(c) VOLUNTARY TERMINATION. Until Xxxxx reaches the age of 63, upon any
voluntary termination of employment by Xxxxx, the Company shall pay Xxxxx a
severance payment (the "Voluntary Termination Severance") equal to Xxxxx'x
base salary for the last completed calendar year prior to the date of
termination plus any bonus paid for such year and shall have no further
obligations to Xxxxx except as provided by law. After Xxxxx reaches the
age of 63, the Voluntary Termination Severance shall end.
(d) WITHOUT CAUSE. The Company may terminate Xxxxx'x employment hereunder
at any time without "Cause" (as defined above), for any reason or no
reason. Upon any such termination of Xxxxx, Xxxxx shall be entitled to
receive a severance payment (the "Involuntary Termination Severance") equal
to two times Xxxxx'x average annual compensation from the Company and
included in her gross income for federal income tax purposes for the period
consisting of the five most recently completed calendar years ending before
the date of termination (the "Average Annual Compensation"), and she shall
immediately vest in all of the unvested Options. The amount of the
Involuntary Termination Severance shall remain in effect until Xxxxx
reaches the age of 64; once Xxxxx reaches the age of 64, the amount of the
Involuntary Termination Severance shall be reduced to one times her Average
Annual Compensation; and upon Xxxxx reaching the age of 65, she shall no
longer be entitled to any Involuntary Termination Severance.
(e) CHANGE IN CONTROL. The Company or its successor may terminate Xxxxx'x
employment hereunder or Xxxxx may terminate her employment with the Company
under circumstances which would constitute a "Constructive Involuntary
Termination" (as defined in Section 5.1 below), in the event of a change in
control of the Company, in which case, in addition to and not by way of
limitation of the provisions contained in this Section 4, but subject to
the provisions of Section 5.2(f) below relating to Parachute Payments, the
provisions of Section 5 shall control.
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5. CHANGE IN CONTROL. For a period commencing on the date of this
Agreement and ending on the later of (i) December 31, 2001, or (ii) if the
Commencement Date (as defined in Section 5.3(c)) occurs on or prior to
December 31, 2001 (or prior to the end of any extension of such date then in
effect as provided for in clause (i) hereof, which period may be
automatically extended for one year intervals from year to year thereafter by
agreement of Xxxxx and the Board), the second anniversary of the Commencement
Date, (hereafter, the "Change in Control Term"), the provisions of this
Section 5 shall control in the event an Event (as herein defined) shall occur
during the Change in Control Term.
5.1 EVENTS. For purposes of this Agreement an "Event" shall be deemed to
have occurred if any of the following occur:
(a) Any "person" (as defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended, or any successor statute thereto (the "Exchange
Act")) acquires or becomes a "beneficial owner" (as defined in Rule 13d-3
or any successor rule under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities entitled to vote
generally in the election of directors ("Voting Securities") or 30% or more
of the outstanding shares of common stock of the Company ("Common Stock"),
provided, however, that the following shall not constitute an Event
pursuant to this Section 5.1(a): (i) any acquisition of beneficial
ownership by the Company or a subsidiary of the Company; (ii) any
acquisition of beneficial ownership by any employee benefit plan (or
related trust) sponsored or maintained by the Company or one or more of its
subsidiaries; (iii) any acquisition of beneficial ownership by any
corporation (including without limitation an acquisition in a transaction
of the nature described in Section 5.1(c)) with respect to which,
immediately following such acquisition, more than 70%, respectively, of (x)
the combined voting power of the Company's then outstanding Voting
Securities and (y) the Common Stock is then beneficially owned, directly or
indirectly, by all or substantially all of the persons who beneficially
owned the Voting Securities and Common Stock, respectively, of the Company
immediately prior to such acquisition in substantially the same proportions
as their ownership of such Voting Securities and Common Stock, as the case
may be, immediately prior to such acquisition.
(b) Continuing Directors shall not constitute a majority of the members of
the Board. For purposes of this Section 5.1(b), "Continuing Directors"
shall mean: (i) individuals who, on the date hereof, are directors of the
Company, (ii) individuals elected as directors of the Company subsequent to
the date hereof for whose election proxies shall have been solicited by the
Board, or (iii) any individual elected or appointed by the Board to fill
vacancies on the Board caused by death or resignation (but not by removal)
or to fill newly-created directorships, provided that a "Continuing
Director" shall not include an individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the threatened election or removal of directors (or other actual
or threatened solicitation of proxies or consents) by or on behalf of any
person other than the Board.
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(c) Consummation of a reorganization, merger or consolidation of the
Company (other than a merger or consolidation with a subsidiary of the
Company) or a statutory exchange of outstanding Voting Securities or Common
Stock, unless immediately following such reorganization, merger,
consolidation or exchange, all or substantially all of the persons who were
the beneficial owners, respectively, of Voting Securities and Common Stock
immediately prior to such reorganization, merger, consolidation or exchange
beneficially own, directly or indirectly, more than 70% of, respectively,
(i) the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors and (ii) the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger, consolidation or exchange in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger, consolidation or exchange, of the Voting Securities and Common
Stock, as the case may be.
(d) (i) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company (in
one or a series of transactions), other than to a corporation with respect
to which, immediately following such sale or other disposition, more than
70% of, respectively, (x) the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors and (y) the then outstanding shares of common stock
of such corporation is then beneficially owned, directly or indirectly, by
all or substantially all of the persons who were the beneficial owners,
respectively, of the Voting Securities and Common Stock immediately prior
to such sale or other disposition in substantially the same proportions as
their ownership, immediately prior to such sale or other disposition, of
the Voting Securities and Common Stock, as the case may be.
(e) The Company enters into a letter of intent, an agreement in principle
or a definitive agreement relating to an Event described in Section 5.1(a),
5.1(b), 5.1(c) or 5.1(d) hereof that ultimately results in such an Event,
or a tender or exchange offer or proxy contest is commenced which
ultimately results in an Event described in Section 5.1(a) or 5.1(b)
hereof.
(f) There shall be an involuntary termination or Constructive Involuntary
Termination (as defined in Section 5.2(d) hereof) of employment of Xxxxx,
and Xxxxx reasonably demonstrates that such event (i) was requested by a
party other than the Board that had previously taken other steps reasonably
calculated to result in an Event described in Section 5.1(a), 5.1(b),
5.1(c) or 5.1(d) hereof and which ultimately results in an Event described
in Section 5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof, or (ii) otherwise arose
in connection with or in anticipation of an Event described in Section
5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof that ultimately occurs.
Each of the foregoing Events (or combination thereof) is referred to herein
as a "Sale Transaction," and the aggregate amount received by either the
Company or its shareholders in the Sale Transaction is referred to herein as
the "Sale Transaction Price."
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Notwithstanding anything stated in this Section 5.1, an Event shall not
be deemed to occur with respect to Xxxxx if (x) the acquisition of beneficial
ownership of the 30% or greater interest referred to in Section 5.1(a) is by
Xxxxx or by a group, acting in concert, organized by and including Xxxxx or
(y) a majority of the then combined voting power of the then outstanding
voting securities (or voting equity interests) of the surviving corporation
or of any corporation (or other entity) acquiring all or substantially all of
the assets of the Company shall, immediately after a reorganization, merger,
consolidation, statutory share exchange or disposition of assets referred to
in Section 5.1(c) or 5.1(d), is beneficially owned, directly or indirectly,
by Xxxxx or by a group, acting in concert, organized by and including Xxxxx.
5.2 CHANGE IN CONTROL PAYMENTS AND BENEFITS. If any Event shall occur
during the Change in Control Term, then Xxxxx shall be entitled to receive
from the Company or its successor (which term as used herein shall include
any person acquiring all or substantially all of the assets of the Company)
cash payments and other benefits on the following basis (unless Xxxxx'x
employment by the Company is terminated voluntarily or involuntarily prior to
the occurrence of the earliest Event to occur (the "First Event"), in which
case Xxxxx shall be entitled to no payment or benefits under this Section 5,
but still may be entitled to payments and benefits under Section 4 hereof):
(a) A cash payment payable in two installments (the "Transaction
Completion Bonus") equal to Xxxxx'x proportionate share (as described
below) of a fund to be established by the Company or its successor equal to
1% of the Sale Transaction Price (the "Fund"), payable one half at closing
or completion of an Event described in Section 5.1(a), 5.1(b), 5.1(c) or
5.1(d), and the remainder on the one year anniversary of such date (the
"Transaction Anniversary Date"), provided Xxxxx'x employment with the
Company or its successor is either (i) still in effect on the Transaction
Anniversary Date or (ii) not in effect on the Transaction Anniversary Date
as a result of a Constructive Involuntary Termination (as defined in
Section 5.1 hereof) or a termination by the Company or its successor for a
reason other than for Cause (as defined in Section 4(b) hereof). Xxxxx'x
proportionate share of the Fund shall be calculated as follows: multiply
the amount of the Fund by a fraction, the numerator of which is Xxxxx'x
1999 base salary and the denominator of which is the aggregate 1999 base
salary paid by the Company to its four executive officers other than its
Chief Executive Officer.
(b) If at the time of, or at any time after, the occurrence of the First
Event and prior to the end of the Transition Period (as defined in Section
5.3(c)), the employment of Xxxxx with the Company is voluntarily or
involuntarily terminated for any reason (unless such termination is a
voluntary termination by Xxxxx other than a Constructive Involuntary
Termination or is on account of the death or Disability of Xxxxx or is a
termination by the Company for Cause), Xxxxx (or Xxxxx'x legal
representative, as the case may be), subject to the limitations set forth
in Section 5.2(f), shall be entitled to receive from the Company or its
successor, upon such termination of employment with the Company or its
successor, a cash payment in an amount equal to a multiple of Xxxxx'x
Average Annual Compensation ending before the First Event (other than an
Event described in Section 5(e) or 5(f) unless Xxxxx is terminated prior to
the
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occurrence of an Event described in Section 5(a), 5(b), 5(c) or 5(d)),
as described in the next sentence. If Xxxxx'x employment with the Company
or its successor is terminated at any time up to and including the
Transaction Anniversary Date, Xxxxx shall be entitled to receive 1.50 times
the Average Annual Compensation; if terminated within two calendar months
thereafter, 1.42 times the Average Annual Compensation; if terminated
within two calendar months thereafter, 1.33 times the Average Annual
Compensation; if terminated within two calendar months thereafter, 1.25
times the Average Annual Compensation; if terminated within two calendar
months thereafter, 1.17 times the Average Annual Compensation; if
terminated within two calendar months thereafter, 1.08 times the Average
Annual Compensation; and, if terminated at any time after such date until
the end of the Transition Period, 1.00 times the Average Annual
Compensation. If Xxxxx is terminated at any time after the conclusion of
the Transition Period, Xxxxx shall not be entitled to any compensation
under this provision.
(c) The payments provided for in this Section 5.2 shall be in addition to
any other remuneration otherwise payable to Xxxxx on account of employment
by the Company or one or more of its subsidiaries or its successor
(including any amounts received prior to such termination of employment for
personal services rendered after the occurrence of the First Event) but
shall be the aggregate amount payable to Xxxxx under this Agreement shall
be subject to the limitations set forth in Section 5.2(f) below relating to
Parachute Payments.
(d) In the event that at any time from the date of the First Event until
the end of the Transition Period,
(i) Xxxxx shall not be given substantially equivalent or greater
title, duties, responsibilities and authority or substantially
equivalent or greater salary and other remuneration and fringe
benefits (including paid vacation), in each case as compared
with Xxxxx'x status immediately prior to the First Event other
than for Cause or on account of Disability,
(ii) the Company shall have failed to obtain assumption of this
Agreement by any successor as contemplated by Section 10(b)
hereof,
(iii) the Company shall require Xxxxx to relocate to any place
other than a location within twenty-five miles of the location
at which Xxxxx performed her duties immediately prior to the
First Event, or
(iv) the Company shall require that Xxxxx travel on Company
business to a substantially greater extent than required
immediately prior to the First Event,
a termination of employment with the Company by Xxxxx thereafter shall
constitute a "Constructive Involuntary Termination."
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(e) Xxxxx shall not be required to mitigate the amount of any payment or
other benefit provided for in this Agreement by seeking other employment or
otherwise, nor (except as specifically provided in Section 5.2(f) below)
shall the amount of any payment or other benefit provided for in this
Agreement be reduced by any compensation earned by Xxxxx as the result of
employment by another employer after termination, or otherwise.
(f) "PARACHUTE PAYMENTS". Notwithstanding any provision to the contrary
contained herein except the last sentence of this Section 5.2(f), if the
lump sum cash payment due and the other benefits to which Xxxxx shall
become entitled under this Agreement, either alone or together with other
payments in the nature of compensation to Xxxxx which are contingent on a
change in the ownership or effective control of the Company or in the
ownership of a substantial portion of the assets of the Company (a "Change
in Control Arrangement") or otherwise, would constitute a "parachute
payment" as defined in Section 28OG of the Internal Revenue Code of 1986
(the "Code") or any successor provision thereto, such lump sum payment
and/or such other benefits and payments shall be reduced (but not below
zero) to the largest aggregate amount as will result in no portion thereof
being subject to the excise tax imposed under Section 4999 of the Code (or
any successor provision thereto) or being non-deductible to the Company for
federal income tax purposes pursuant to Section 28OG of the Code (or any
successor provision thereto). Xxxxx in good faith shall determine the
amount of any reduction to be made pursuant to this Section 5.2(f) and
shall select from among the foregoing benefits and payments those which
shall be reduced. No modification of, or successor provision to, Section
28OG or Section 4999 subsequent to the date of this Agreement shall,
however, reduce the benefits to which Xxxxx would be entitled under this
Agreement in the absence of this Section 5.2(f) to a greater extent than
they would have been reduced if Section 28OG and Section 4999 had not been
modified or superseded subsequent to the date of this Agreement,
notwithstanding anything to the contrary provided in the first sentence of
this Section 5.2(f).
5.3 DEFINITION OF CERTAIN ADDITIONAL TERMS.
(a) As used herein, other than in Section 5(a) hereof, the term "person"
shall mean an individual, partnership, corporation, estate, trust or other
entity.
(b) As used herein, the term "Disability" shall mean a medical condition
(physical or non-physical) pursuant to which Xxxxx cannot timely perform
the material duties of her position with the Company (such determination to
be based on Xxxxx'x qualifying for disability benefits under her long-term
disability insurance policy with the Company).
(c) As used herein, the term "Transition Period" shall mean the 2-year
period commencing on the date of the earliest to occur of an Event
described in Section 5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof (the
"Commencement Date"), and ending on the second anniversary of the
Commencement Date.
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6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Xxxxx agrees that she
will not use or disclose, or permit others to use or disclose (other than
other employees or representatives of the Company), any trade secrets,
confidential information, data or records relating to the business,
techniques, operations and condition (financial or otherwise) of the Company
which is not generally known or available through other lawful sources.
7. PROPERTY RIGHTS. Subject to the last sentence in this Section,
the Company shall acquire exclusive right, title, and interest to all
inventions, discoveries, improvements, designs, ideas, know-how, technology
and the like developed, conceived, or invented by Xxxxx, in whole or in part,
whether written or in some other form and whether or not patentable or
eligible for protection under any copyright law. Without limiting the
generality of the foregoing, Xxxxx hereby assigns to the Company (i) all
rights to any inventions, or to improvements, and all rights to apply for
United States and/or foreign letters of patent granted upon such inventions;
and (ii) any copyrights Xxxxx may have in materials created by Xxxxx or
otherwise generated during the period in which Xxxxx is performing services
for the Company, and the Company shall have the sole right to apply for and
obtain copyright protection for any materials for which such protection can
be obtained and to obtain such copyright renewals. Despite any of the
foregoing, nothing in this Section 7 shall apply to an invention for which no
equipment, supplies, facility or trade secret information of the Company is
used and which is developed entirely on Xxxxx'x own time, and (i) does not
relate (a) directly to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development, or (ii) which
does not result from any work performed by Xxxxx for the Company.
8. NON-COMPETE COVENANT. During the Employment Period and for a
period of two years after the termination of employment for any reason, Xxxxx
shall not (i) directly or indirectly, whether as a principal, owner, agent or
in any other capacity whatsoever, engage in the business of manufacturing,
marketing or designing internal bank forms, negotiable documents and custom
business forms anywhere within the United States, (ii) solicit for employment
or employ any employee or independent contractor of the Company, or (iii)
contact any present or contemplated customers of the Company regarding the
business of the Company.
9. REMEDIES FOR BREACH; DISPUTE RESOLUTION.
(a) REMEDIES FOR BREACH. Xxxxx acknowledges that she has carefully read
and considered all of the terms and conditions of this Agreement and has
had the opportunity to consult counsel regarding the negotiation and
execution hereof. Xxxxx further acknowledges that money damages would not
be a measurable or adequate remedy for Xxxxx'x breach of any of the
covenants contained in this Agreement, and, accordingly, in addition to and
without limiting any other remedy available to the Company in the event of
such a breach, Xxxxx agrees, notwithstanding the provisions of Section 9(b)
hereof, to submit to the equitable jurisdiction of any court of competent
personal and subject matter jurisdiction in connection with any action to
enjoin the Xxxxx from violating any such covenants.
(b) PROCEDURE FOR ARBITRATION. Except as provided in Section 9(a) above,
any dispute arising out of or relating to this Agreement or the alleged
breach of it, or the
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making of this Agreement, including claims of fraud in the inducement, or
any dispute arising from or related in any way to Xxxxx'x employment,
including any statutory or tort claims, which has not been settled through
negotiation within a period of thirty (30) days after the date on which
either party shall first have notified the other party in writing of the
existence of a dispute, shall be settled by final and binding arbitration
pursuant to the provisions of this Agreement and under the then applicable
arbitration rules of the American Arbitration Association ("AAA"), unless
such rules are inconsistent with the provisions of this Agreement. Any
such arbitration shall be conducted by: (a) neutral arbitrator appointed
by mutual agreement of the parties; or (b) failing such agreement, in
accordance with said rules. An arbitrator's award may be enforced in any
court of competent jurisdiction. Each party shall be permitted reasonable
discovery, including the production of relevant documents by the other
party, the exchange of witness lists, and a limited number of depositions,
including depositions of any expert who will testify at the arbitration.
The summary judgment procedure applicable in Hennepin County, Minnesota,
District Court, shall be available and apply to any arbitration conducted
pursuant to this Agreement. Subject to the provisions of Section 8(c)
below, the arbitrator shall have the authority to award to the prevailing
party any remedy or relief that a court of the State of Minnesota could
order or grant, including costs and attorneys' fees. Unless otherwise
agreed by the parties, the place of any arbitration proceeding shall be
Minneapolis, Minnesota.
(c) RECOVERY OF LITIGATION COSTS. Notwithstanding the provisions of
Section 8(b) above, in the event that Xxxxx is found to have breached any
of the terms and conditions of this Agreement, Xxxxx hereby agrees to pay
all costs and expenses incurred by Northstar in enforcing the provisions of
this Agreement found to have been breached by Xxxxx, including Northstar's
attorney's fees.
10. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the benefit of the
successors, legal representatives and assigns of the parties hereto;
provided, however, that Xxxxx shall not have any right to assign, pledge
or otherwise dispose of or transfer any interest in this Agreement or any
payments hereunder, whether directly or indirectly or in whole or in part,
without the written consent of the Company or its successor.
(b) The Company will require any successor (whether direct or indirect by
purchase of a majority of the outstanding voting stock of the Company or
all or substantially all of the assets of the Company, or by merger,
consolidation or otherwise), by agreement in form and substance
satisfactory to Xxxxx, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. Failure
of the Company to obtain such agreement prior to the effectiveness of any
such succession (other than in the case of a merger or consolidation) shall
be a breach of this Agreement and shall entitle Xxxxx to compensation from
the Company in the same amount and on the same terms as Xxxxx would be
entitled hereunder if Xxxxx terminated her employment on
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account of a Constructive Involuntary Termination, except that for purposes
of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the date of termination. As used in this
Agreement "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which is required to
execute and deliver the agreement provided for in this Section 10(b) or
which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
11. BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of
and be enforceable by the Company, it's successors, assigns and affiliates.
12. WAIVER. The failure of the Company to insist on the strict
performance of any provision of this Agreement or to exercise any right, power
or remedy upon a breach by Xxxxx shall not constitute a waiver of that or any
other provision of this Agreement. A waiver on any one occasion shall not be
deemed to be a waiver for subsequent occasions.
13. SURVIVAL AND SEVERABILITY. The terms and conditions of this
Agreement shall survive the termination of Xxxxx'x employment with the
Company to the full extent necessary for their enforcement and for the
protection of the Company, it's successors, assigns and affiliates. If for
any reason any portion of any provision of this Agreement is declared
invalid, void or unenforceable by a court of competent jurisdiction, the
validity and binding effect of any remaining provisions of this Agreement
shall remain in full force and effect to the fullest extent possible as if
this Agreement had been executed with the invalid, void or unenforceable
portion or provision eliminated. In the event that any provision of this
Agreement relating to time periods and/or areas of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum time
periods or areas such court deems reasonable and enforceable, said time
periods and/or areas of restriction shall be deemed to become and thereafter
be the maximum time periods and/or areas which such court deems reasonable
and enforceable.
14. PRIOR AGREEMENTS. This Agreement contains the entire agreement of
the parties relating to the employment of Xxxxx by the Company and the other
matters discussed herein and supercedes all prior promises, contracts,
agreements, and understandings of any kind, whether express or implied, oral
or written, with respect to such subject matter (including, without
limitation, the Existing Employment Agreement, which is hereby terminated and
of no further force or effect) and the parties hereto have made no
agreements, representations, or warranties relating to the subject matter of
this Agreement which are not set forth herein.
15. WITHHOLDING TAXES. The Company may take such action as it deems
appropriate to ensure that all applicable federal, state, city, and other
payroll, withholding, income, or other taxes arising from any compensation,
benefits, or any other payments made pursuant to this Agreement, or any other
contract, agreement, or understanding which relates, in whole or in part, to
Xxxxx'x employment with the Company, are withheld or collected from Xxxxx
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16. NOTICES. All notices, requests and demands given to or made
pursuant hereto shall be in writing and shall be delivered or mailed to any
such party at its address which:
(a) In the case of the Company shall be:
Northstar Computer Forms, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
(b) In the case of Xxxxx shall be:
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Either party may, by notice hereunder, designate a changed address. Any
notice, if mailed properly addressed, postage prepaid, registered or
certified mail, shall be deemed to have been given on the registered date or
that date stamped on the certified mail receipt.
17. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NORTHSTAR COMPUTER FORMS, INC.
By
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Its
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-----------------------------------------
Xxxx Xxx Xxxxx
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