Exhibit 10.5
X. X. XXXXXXXX COMPANY
MANAGEMENT-EMPLOYEE AGREEMENT
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(Last Name) (First Name) (Middle Initial)
hereinafter called Employee.
I.
RECITALS
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Employee has heretofore been employed by Company in significant sales
and management positions and Employee wishes to continue such employment with
the potential of increased responsibility and knowledge about the Company
affairs.
II.
DEFINITIONS
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In this Agreement:
A. "Company" means X. X. XXXXXXXX COMPANY and existing or future
subsidiaries owned or controlled by said corporation.
B. "Confidential Information" shall mean,
1. All information, written or oral, not generally known, or
proprietary to the Company, about the Company's brokerage, marketing,
accounting, merchandising, and information gathering techniques and
methods, and all accumulated data, listings, or similar recorded
matter used or useful in produce and transportation operations
including but not limited to the insurance and carrier information
rolodex file, ten-day brokerage reports, business forms, weekly exempt
loading list, chain store advertisements, marketing center news
reports and marketing aids.
2. All information disclosed to me, or to which I have access during
the period of my employment, for which there is any reasonable basis
to be believed is, or which appears to be treated by the Company as
Confidential Information, shall be presumed to be Confidential
Information hereunder.
C. "Competing Business" means any business, firm, undertaking, company or
organization, other than Company, which;
1. is engaged in, or is about to become engaged in, the produce or
transportation industries or engaged in the produce brokerage or
transportation brokerage business, or
2. regardless of the nature of its business, either competes directly
or indirectly with Company in the purchase and sale of produce and/or
in contracting, arranging, providing, procuring, furnishing or
soliciting transportation services, or
3. has employed or potentially could employ the Company's services in
produce brokerage or truck brokerage matters.
D. "Customer" means any person, company or organization engaged in the
produce or transportation industries as a shipper, receiver or carrier.
III.
NATURE OF EMPLOYEE'S ACTIVITY
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A. I am aware and acknowledge that the Company has developed a
special competence in the produce and transportation industries and has
accumulated as proprietary information (not generally known to others) more and
better information about growers, shippers, truckers, trucking equipment,
customers, purchasing agents and similar matters which are of unique value in
the conduct and growth of the Company's business. This proprietary pool of
information has enabled the Company to conduct its business with unusual success
and thus afforded unusual employment opportunities and potential to its
employees.
B. In the course of my employment, I have been and wish to continue
to be employed in a position or positions with the Company in which I may
receive or contribute to Confidential Information as hereinabove defined. It is
my desire to continue progressing in the Company in both sales and management
capacities and I recognize optimum progression and specialization cannot take
place unless Confidential Information relating to technology, processes, plans,
development, activity, customers and the like is entrusted to me.
C. I acknowledge in the course of carrying out, performing and
fulfilling my responsibilities to the Company, I have had access to and been
entrusted with Confidential Information relating to the Company's business and
customers and I recognize that disclosure of any such Confidential Information
to competitors of the Company or to the general public would be highly
detrimental to the Company. I further acknowledge that in the course of
performing my obligations to the Company, I will be a representative of the
Company to many of the Company's customers and in some instances, practically
Company's sole and exclusive contact with the customer and as such will be
significantly
responsible for maintaining or enhancing the business and/or goodwill of Company
with such customers.
IV.
PROTECTION OF BUSINESS
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Therefore, in consideration of my employment by the Company and in
consideration of the compensation to be paid to me from time to time during such
employment,
I hereby agree as follows:
A. Except as may be required in the performance of my employment duties
with the Company, I will never at any time use, disclose, copy or assist
any other person or firm in the use, disclosure or copying of any
Confidential Information.
B. Upon termination of my employment with the Company all records or
copies of such Confidential Information in my possession whether prepared
by me or others, and regardless of how the same came into my possession,
will be turned over to the Company by me.
C. For a period of two (2) years after termination of my employment with
the Company, however occasioned, I will not:
1. Directly or indirectly solicit, sell or render services to or for
the benefit of any Competing Business with any customer or prospective
customer of Company with whom I worked or had regular contact, or on
whose account I worked, at any time during the last two years of my
employment with the Company; or
2. Cause or attempt to cause any customer of the Company to divert,
terminate, limit or in any manner modify or fail to enter into any
actual or potential business relationship with Company.
3. It is understood by me and agreed to by Company that upon
termination of employment hereunder, I will not be restricted
territorially from competing with Company, so long as I comply with
the provisions of subparagraphs 1 and 2 immediately above.
V.
POST-EMPLOYMENT COMPENSATION
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A. Except as provided in paragraphs C and D of this Part V, if following
termination of employment with the Company, I am unable to obtain
subsequent employment solely because of the provisions of Part IV C 1 and
IV C 2 above, then, for each month of such unemployment and for a maximum
of 24 consecutive months, Company shall make payments to me equal to my
average compensation paid or accrued for the two (2) calendar years
previous to termination (exclusive of employee benefits) up to a maximum of
Three Thousand Dollars ($3,000.00) per month.
B. During each month of unemployment and as a condition precedent to my
claim for post-employment compensation, I agree:
1. to conscientiously seek employment, and
2. to prepare and submit to the Company a detailed written account
of my efforts to obtain employment, and
3. to prepare and submit to the Company a written statement that I
have not found employment and that the sole reason I was unable to
obtain employment was due to the provisions of Part IV C 1 and IV C 2
above.
Company shall be afforded a ten (10) day period from the receipt of my
written account to confirm the validity thereof, and upon expiration of
said period, Company shall be obligated to make prompt payment of the
monthly amount due under this paragraph.
C. Company, at its option, may be relieved of making post-employment
compensation payments:
1. for any month during which I have not conscientiously sought
employment, or
2. for any month during which I have failed to account as provided
for above, or
3. by giving me written permission to accept available employment or
a written release from the obligations of Part IV C above.
D. Notwithstanding anything above to the contrary, Part V of this
Agreement shall not apply if I am dismissed from employment for cause, i.e.
dishonesty, embezzlement, violation of government rules and regulations, or
flagrant and repeated failure to follow company rules, regulations and
policies. However, in the event I am dismissed for cause, I acknowledge
that the remainder of this Agreement (except Part V) shall remain in full
force and effect.
E. To insure a clear understanding of this Agreement, including but not
limited to post-employment compensation where applicable, I agree, at no
additional expense to me, to engage in an exit interview with the Company at a
time and place designated by Company.
VI.
INJUNCTIVE RELIEF
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In the event of a breach or threatened breach of Part IV C 1 and IV C
2 above, Company shall be entitled to a temporary and/or permanent injunction
restraining such breach; but nothing herein shall be construed as prohibiting
Company from pursuing any other remedy available to it for such breach or
threatened breach.
VII.
SEPARATE AND DIVISIBLE COVENANTS
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The covenants contained in Part IV C 1 and IV C 2 are intended to be
separate and divisible covenants, and if, for any reason, any one or more
thereof shall be held to be invalid or unenforceable, in whole or in part, it is
agreed that the same shall not be held to effect the validity or enforceability
of any other such covenant or of this agreement. The terms and period set forth
in Part IV C 1 and IV C 2 shall be reduced to the maximum permitted by the law
actually applied to determine the validity of each such paragraph.
VIII.
GOVERNING LAW
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I agree that all of my obligations hereunder shall be binding upon my
heirs, beneficiaries, and legal representatives in that the law of the state of
Minnesota shall govern as to the interpretation and enforceability of this
Agreement.
Signed and delivered this day of , 19 .
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WITNESSETH:
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Accepted for X.X. Xxxxxxxx Company, this ___ day of ___, 19__, at
Minneapolis, Minnesota. This Agreement becomes binding upon acceptance by the
Company.
WITNESSETH: X.X. XXXXXXXX COMPANY
By:
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