EMPLOYMENT AGREEMENT
This Agreement is made as of April 5, 1999, by and between Xxxxxxx
Company, a Minnesota corporation (the "Company"), and Xxxxx Xxxxx (the
"Executive").
WHEREAS Executive has worked for the Company for more than 12 years in
the positions of Associate General Counsel, General Counsel and Corporate
Secretary, Vice President, Senior Vice President, Executive Vice President,
President, and Chief Operating Officer;
WHEREAS the Company desires to promote Executive to the position of
Chief Executive Officer in accordance with the terms and conditions stated in
this Agreement; and
WHEREAS Executive desires to accept that promotion pursuant to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and undertakings described below, Executive and Company agree as
follows:
I. EMPLOYMENT
1.1 EMPLOYMENT AS EXECUTIVE. The Company agrees to employ Executive
as its Chief Executive Officer ("CEO"), and Executive accepts such
employment. The term of initial employment as CEO shall be three years,
commencing on April 5, 1999, and ending on April 5, 2002, or continuing
thereafter under the terms of this Agreement, except that pursuant to
Article III of this Agreement, after April 5, 2002, Executive may be
terminated by Company upon not less than three month's prior written
notice.
1.2 DUTIES. Executive shall perform the duties and responsibilities
of Chief Executive Officer. Those duties may be revised from time to
time by the Board of Directors of the Company or its designee, to whom
Executive shall report.
1.3 EXCLUSIVE SERVICES. Executive agrees to devote her full time,
attention, and energy to performing her duties and responsibilities to
the Company under this Agreement during the period that this Agreement is
in effect.
II. COMPENSATION, BENEFITS, AND PERQUISITES
2.1 SALARY. During the period this Agreement is in effect, the
Company shall pay Executive a salary to be determined annually less
withholding and deductions required by law. The salary shall be payable
monthly. Beginning February, 2000, the Board of Directors of the Company
may review the salary periodically and may in
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its sole discretion increase or decrease it to reflect performance and
other factors. However, the Company is not obligated to provide for any
increases.
2.2 INCENTIVE COMPENSATION. While Executive is employed by the
Company, She shall be entitled to incentive compensation determined
according to the Tennant Annual Incentive Compensation Plan (the
"Incentive Plan") or such other incentive plans that may exist at that
time and, for as long as they continue, she shall be entitled to
participate in the Long-Term Incentive Plan, Stock Option Plan, and
Restricted Stock Plan, as per Plan documents, or such other similar or
modified plans that may hereafter be established by the Company in lieu
of or in addition to the above-described plans.
2.3 VACATIONS. Executive shall be entitled to vacation in accordance
with the policies of the Company.
2.4 EMPLOYEE BENEFITS. Executive shall be entitled to the benefits
and perquisites which the Company generally provides to its other
executive employees from time to time under the applicable Company plans
and policies then in effect. Executive's participation in such benefit
plans shall be on the same basis as applies to other executive employees
of the Company and subject to the terms of applicable law, plan
documents, and insurance policies then in effect. Executive shall pay
any contributions which are generally required of other executive
employees to receive any such benefits. The Company provides no
assurance as to the adoption or continuance of any particular employee
benefit plan or program, and Executive's participation in any such plan
or program shall be subject to the provisions, rules and regulations
applicable thereto.
2.5 COMPANY RESPONSIBILITY FOR INSURED BENEFITS. In this Article II,
to the extent the Company is providing certain benefits in the form of
premiums of insurance coverage, the Company is not itself promising to
pay the benefit an insurance company is obligated to pay under the policy
the insurance company has issued. If an insurance company does not or
cannot pay benefits it owes to Executive or her beneficiaries under the
insurance policy, neither Executive nor her personal representative or
beneficiary shall have any claim for benefits against the Company.
2.6 EXPENSES. Executive shall be entitled to receive reimbursement
from the Company (in accordance with the policies and procedures then in
effect for the Company's employees) for all reasonable travel and other
expenses incurred by her in connection with her services under this
Employment Agreement.
III. TERMINATION OF EXECUTIVE'S EMPLOYMENT
3.1 TERMINATION. Executive's employment by the Company shall
terminate upon the occurrence of any of the following events:
(a) Executive's death;
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(b) Executive's disability (as defined below);
(c) Termination by the Company for cause (as defined below);
(d) Termination by the Executive for good reason (as defined
below);
(e) Executive's abandonment of her employment with the Company;
(f) Receipt by the Company of Executive's resignation from the
Company (whether written or oral), by timely written notice, for
any reason other than Disability; or
(g) At any time after April 5, 2002, termination by the Company
at its sole right and election, upon not less than three months'
prior written notice to Executive.
3.2 PAYMENTS UPON TERMINATION.
(a) If Executive's employment hereunder ends at the instance of
the Company without Cause (as defined below), at the instance of
Executive with Good Reason (as defined below) or due to her death
or Disability (as defined below), then as severance pay or a
death benefit (as the case may be) the Company shall pay
Executive or her heirs: 1) her regular salary, paid on a monthly
basis according to the Company's regular payroll, for one year;
2) a pro rata portion (based on the number of calendar days of
employment during the incentive plan year) of the incentive
compensation Executive would have received under the Incentive
Plan if she had been employed for the entire plan year; and in
addition, 3) a payment equal to the incentive compensation that
she would have received for one year for performance at target as
set forth in the Incentive Plan. The payments under 2) and 3)
above shall be made within six months of the termination date, or
as soon as is reasonably possible after the year-end EP has been
determined, unless otherwise mutually agreed by the parties. Any
amount paid to Executive as severance pay shall be subject to
deductions and withholding. The Company shall have no other
obligation to Executive, except as provided by law (including so
called COBRA continuation rights for group health and insurance
benefits).
(b) The Company shall not be obligated to make any payment to
Executive in the event that she qualifies for payment due to a
change of control pursuant to the Management Agreement dated June
21, 1989, and amended as of December 10, 1993, or in the event
that her employment is terminated by the Company for Cause (as
defined below) or by Executive without Good Reason (as defined
below).
(c) "Cause" for termination of Executive's employment at the
instance of the Company means termination for:
(i) Executive's material breach of this Agreement, which
is not remedied within thirty (30) days after
receipt of written notice;
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(ii) an act or acts of dishonesty undertaken by Executive
and intended to result in gain or personal
enrichment of her at the expense of the Company;
(iii) persistent failure by Executive to perform the
duties of her employment, which failure is
demonstrably willful and deliberate on her part and
which is not remedied within ninety (90) days after
receipt of written notice from the Company;
(iv) Executive's abandonment of her position with the
Company; or
(v) the indictment or conviction of Executive for a
felony.
(d) "Good Reason" for termination of Executive's employment at
the instance of Executive means termination for:
(i) Company's material breach of this Agreement, which
is not remedied within thirty days after receipt of
written notice from Executive;
(ii) a material reduction of Executive's base salary or a
material modification to the incentive compensation
plan that decreases by a substantial amount
Executive's opportunity to earn incentive
compensation, unless such reduction is part of a
general reduction in the base salaries and/or
incentive compensation plans for all executive
officers of the Company implemented as a result of
financial problems experienced by the Company;
(iii) the assignment to Executive of duties and
responsibilities that are substantially inconsistent
with or materially diminish Executive's position as
Chief Executive Officer of the Company; or
(iv) the Company headquarters being relocated out of
Minnesota.
(e) "Disability" means the inability of Executive, with or
without reasonable accommodation, to perform the essential
functions of her duties hereunder by reason of illness or other
physical or mental impairment or condition, if such inability
continues for an uninterrupted period of 90 calendar days or
more. A period of inability shall be "uninterrupted" unless and
until Executive returns to full-time work for a continuous period
of at least 30 calendar days.
(f) Notwithstanding the foregoing provisions of this Section
III, the Company shall have the right to deduct from any
severance pay the
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Company is otherwise obligated to pay to Executive the amount of
any indebtedness then established to be owed to the Company by
Executive.
(g) The payments provided under this provision replace and are
in lieu of the payments described in Section G of the Employee
Agreement, attached as Exhibit A to this Agreement.
IV. NONCOMPETITION COVENANT.
4.1 AGREEMENT NOT TO COMPETE AND NOT TO SOLICIT. Executive agrees to
be bound by the terms of the Employee Agreement, attached as Exhibit
A, except as expressly modified below: Company shall be obligated to
make twenty-three (23) such monthly payments ("Noncompete Payments")
if Executive is not receiving one year of salary payments pursuant to
paragraph 3.2(a)(1) of this Agreement ("Severance Salary Payments").
If Executive is receiving such one year of Severance Salary Payments,
the Company shall only have to make such Noncompete Payments after and
to the extent such Severance Salary Payments are exhausted or no
longer paid.
4.2 AGREEMENT NOT TO HIRE. During the term of Executive's employment
with the Company and for a period of two (2) years from the date of
the termination of such employment, whether such termination is with
or without Cause (as defined below), or whether such termination is at
the instance of Executive or the Company, Executive shall not,
directly or indirectly, solicit any person who is then an employee of
the Company or who was an employee of the Company at any time during
the twelve-month period immediately preceding Executive's termination
of employment, in any manner or capacity, including without limitation
as a proprietor, principal, agent, partner, officer, director,
stockholder, employee, member of any association, consultant or
otherwise.
4.3 BLUE PENCIL DOCTRINE. If the duration of, the scope of or any
business activity covered by any provision of this Section IV is in
excess of what is valid and enforceable under applicable law, such
provision shall be construed to cover only that duration, scope or
activity that is valid and enforceable. Executive hereby acknowledges
that this Section IV shall be given the construction which renders its
provisions valid and enforceable to the maximum extent, not exceeding
its express terms, possible under applicable law.
4.4 ACKNOWLEDGMENT. Executive hereby acknowledges that the
provisions of this Section IV are reasonable and necessary to protect
the legitimate interests of the Company and that any violation of this
Section IV by Executive shall cause substantial and irreparable harm
to the Company to such an extent that monetary damages alone would be
an inadequate remedy therefor. Therefore, in the event that Executive
violates any provision of this Section IV, the Company shall be
entitled to an injunction, in addition to all the other remedies it
may have, restraining Executive from violating or continuing to
violate such provision.
4.5 SURVIVAL. The provisions of Section IV shall survive the
termination or expiration of the term of this Agreement.
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V. ALTERNATIVE DISPUTE RESOLUTION
5.1 Executive and Company agree that any dispute or claim that
relates to or arises out of Executive's employment with the Company
shall be resolved by the Rules of Arbitration set forth in Exhibit B
to this Agreement. Disputes and claims encompassed by this Agreement
include all applicable federal and state employment-related claims,
whether based on common law (such as breach of contract or
defamation), or statutes (such as the Americans with Disabilities Act,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, and the Minnesota Human Rights Act). The Rules of
Arbitration are intended to be exclusive and awards issued pursuant to
the Rules are final and binding.
5.2 Executive and Company acknowledge and agree that this arbitration
provision is beneficial to both parties because it provides a quick,
less expensive and confidential manner of resolving finally any
dispute or claim.
5.3 The costs of any arbitration, including attorneys' fees and
arbitration expenses, shall be paid by the nonprevailing party, as
determined by the Arbitrator. In the event that the Arbitrator does
not designate a prevailing party, the cost of the arbitration will be
shared equally by Executive and Company.
VI. MOST FAVORED TERMS
Notwithstanding any other provision of this Agreement, Executive, at
her sole and exclusive election, may choose any more favorable payments,
benefits, protections, or other terms afforded her under the below-described
agreements or plans of the Company, to the extent applicable and then in
force.
(i) The Management Agreement, dated June 21, 1989, amended as of
December 10, 1993, and as may be further amended hereafter, and any
replacement to that Management Agreement; or
(ii) Any severance plans of the Company as may be hereafter established
or amended.
VII. MISCELLANEOUS
6.1 CONTINUED COOPERATION. Following termination of her employment
for any reason, Executive shall cooperate with Company as may
reasonably be necessary to assist it with ongoing projects,
litigation, or investigations. Company shall compensate Executive for
her time and expense in providing such cooperation on an hourly basis.
The hourly rate for such work shall be equal to Executive's annual
salary at the time of termination divided by 2080.
6.2 AMENDMENT. This Agreement may be amended only in a writing that
is signed by both parties.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with regard to the employment of the
Executive by the Company. There are no other agreements, conditions,
or representations, oral or written, expressed or
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implied, with regard thereto. This Agreement supersedes all prior
agreements, promises, and representations relating to the employment
of Executive by the Company.
6.4 (a) ASSIGNMENT. The Company will assign this Agreement to any
entity which succeeds to some or all of the business of the
Company through merger, consolidation, a sale of some or all of
the assets of the Company, or any similar transaction. Executive
acknowledges that the services to be rendered by her are unique
and personal. Accordingly, Executive may not assign any of her
rights or obligations under this Agreement.
(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 the Executive, 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, shall constitute "Good Reason" for
termination by the Executive pursuant to paragraph 3.2 hereof,
and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as provided in paragraph
3.2 hereof. As used in this Agreement, "Company" shall mean the
Company entering into this Agreement with Executive and any
successor to its business and/or assets as aforesaid which is
required to execute and deliver the agreement provided for in
this paragraph 6.4(b) or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
6.5 SUCCESSORS. Subject to Section 5.4, the provisions of this
Agreement shall be binding upon the parties hereto, upon any successor
to or assign of the Company, and upon Executive's heirs and the
personal representative of Executive or Executive's estate.
6.6 NOTICES. Any notice required to be given under this Agreement
shall be in writing and shall be delivered either in person or by
certified or registered mail, return receipt requested. Any notice by
mail shall be addressed as follows:
If to the Company, to:
Vice President - Human Resources
Xxxxxxx Company
000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
If to Executive, to:
Xx. Xxxxx Xxxxx
0000 - 00xx Xxxxxx XX
Xxx Xxxxxxxx, XX 00000
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or to such other addresses as either party may be designate in writing
to the other party from time to time.
6.7 WAIVER OF BREACH. Any waiver by either party of compliance with
any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any other provision of this Agreement
or of any subsequent breach by such party of a provision of this
Agreement. No waiver by the Company shall be valid unless in writing
and signed by the President of the Company.
6.8 SEVERABILITY. If any one or more of the provisions (or portions
thereof) of this Agreement shall for any reason be held by a final
determination of a court of competent jurisdiction to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provisions (or portions
of the provisions) of this Agreement, and the invalid, illegal, or
unenforceable provision shall be deemed replaced by a provision that
is valid, legal, and enforceable and that comes closest to expressing
intention of the parties.
6.9 GOVERNING LAW. This Agreement shall be interpreted and enforced
in accordance with the laws of the State of Minnesota, without giving
effect to conflict of law principles.
6.10 HEADINGS. The headings of articles and sections herein are
included solely for convenience and reference and shall not control
the meaning of interpretation of any of the provisions of this
Agreement.
6.11 COUNTERPARTS. This Agreement may be executed by either of the
parties in counterparts, each of which shall be deemed to be an original,
but all such counterparts shall constitute a single instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
XXXXXXX COMPANY
By: _________________________________
Its _________________________________
EXECUTIVE
_____________________________________
XXXXX XXXXX
L731-2
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6/96 EXHIBIT A
XXXXXXX COMPANY
EMPLOYEE AGREEMENT
______________________________________________________________________________
Employee's Last Name First Name Initial
(Please Print)
I AM EMPLOYED OR DESIRE TO BE EMPLOYED BY XXXXXXX COMPANY IN A CAPACITY IN
WHICH I MAY RECEIVE OR CONTRIBUTE TO CONFIDENTIAL INFORMATION. IN
CONSIDERATION OF SUCH EMPLOYMENT OR CONTINUED EMPLOYMENT, AND THE WAGES OR
SALARY, AND OTHER EMPLOYEE BENEFITS IN COMPENSATION FOR MY SERVICES, AND IN
CONSIDERATION OF THE POST-TERMINATION PAYMENTS DESCRIBED HEREIN, AND IN
CONSIDERATION OF BEING GIVEN ACCESS TO CONFIDENTIAL INFORMATION, ALL OF WHICH
CONSIDERATION I EXPRESSLY ACKNOWLEDGE IS VALUABLE TO ME; I AGREE THAT:
A. In this Employee Agreement:
1. "Company" means Xxxxxxx Company, a corporation of the State of
Minnesota, of Minneapolis, Minnesota, and any existing or future
subsidiaries, owned or controlled directly or indirectly by said
Company.
2. "Confidential Information" means information not generally known
and proprietary to Company, including trade secret information
about Company's methods or processes and products, including
information relating to research, development, manufacture,
purchasing, accounting, engineering, marketing, merchandising,
selling, leasing, servicing, customers, finance and business
systems and techniques. All information disclosed to me, or to
which I obtain access, whether originated by me or by others,
during the period of my employment, which I have reasonable basis
to believe to be confidential information, or which is treated by
Company as being confidential information, shall be presumed to be
Confidential Information.
3. "lnventions" means discoveries, improvements and ideas (whether or
not shown or described in writing or reduced to practice) and
works of authorship, whether or not patentable or copyrightable,
(a) which relate directly to the business of Company, or
(b) which relate to Company's actual or demonstrably
anticipated research or development, or
(c) which result from any work performed by me for Company, or
(d) for which equipment, supplies, facility or trade secret
information of Company are used, or
(e) which is developed on any Company time.
4. "Conflicting Product" means any product, method or process, system
or service of any person or organization other than Company, in
existence or under development, which is the same as or similar to
or competes with, or has a usage allied to, a product, method or
process, system or service upon which I shall have worked (in
either a sales or a non-sales capacity) during the last
three (3) years of my employment by Company, or about which I have
or shall have acquired Confidential Information.
5. "Conflicting Organization" means any person or organization which
is engaged in or about to become engaged in, research on or
development, production, marketing, leasing, selling, or servicing
of a Conflicting Product.
B. With respect to Inventions made, authored or conceived by me, either
solely or jointly with others during my employment, whether or not during
normal working hours or whether or not at Company's premises; or within
one year after termination of my employment; I will:
1. Keep accurate, complete and timely records of such Inventions,
which records shall be Company property and be retained on
Company's premises.
2. Promptly and fully disclose and describe such Inventions in
writing to Company.
3. Assign (and I do hereby assign) to Company all of my rights to
such Inventions, and to applications for letters patent and/or
copyrights in all countries and to letters patent and/or
copyrights granted upon such Inventions in all countries.
4. Acknowledge and deliver promptly to Company (without charge to
Company but at the expense of Company) such written instruments
and to do such other acts, as may be necessary in the opinion of
Company, to preserve property rights against forfeiture,
abandonment or loss and to obtain and maintain letters patent
and/or copyrights and to vest the entire right and title thereto
in Company.
Company shall retain all right, title and interest in and to any
Inventions and any information on Inventions shall be held by me in trust
and solely for the benefit of Company, and shall not be disclosed to any
others without Company's written consent and shall be the sole and
exclusive property of Company.
NOTICE AND ACKNOWLEDGMENT:
I UNDERSTAND THAT PARAGRAPH B OF THIS EMPLOYEE AGREEMENT WHICH I AM BEING
ASKED TO SIGN AS A CONDITION OF MY EMPLOYMENT OR CONTINUED EMPLOYMENT DOES
NOT APPLY TO AN INVENTION FOR WHICH THERE WERE NO EQUIPMENT, SUPPLIES,
FACILITY, OR TRADE SECRET INFORMATION OF COMPANY USED AND WHICH WAS DEVELOPED
ENTIRELY ON MY OWN TIME, AND WHICH DOES NOT RELATE DIRECTLY TO THE BUSINESS
OF COMPANY OR TO COMPANY'S ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR
DEVELOPMENT OR WHICH DOES NOT RESULT FROM ANY WORK PERFORMED BY ME FOR
COMPANY.
C. Any information received as a result of my employment with Company is to
be the property of Company and shall be held by me in trust and solely
for Company's benefit, and except as required in my duties to Company,
I will never, either during my employment by Company or at any time
thereafter, use or disclose any Confidential Information as defined in
Paragraph A (2), hereinabove.
D. Upon termination of my employment with Company, all records and any
compositions, articles, devices, equipment, and other items which
disclose or embody Confidential Information including all copies or
specimens thereof in my possession, whether prepared or made by me or
others, will be left with Company.
E. During the course of employment and for a period of two (2) years
commencing upon expiration of employment, voluntary or involuntary, I
will not, individually or on behalf of persons not party to this
Agreement, aid or try to solicit or induce any other employee or
employees of Company to leave their employment with Company in order to
accept employment of any kind with any other person, firm, partnership,
corporation, or business.
F. For two (2) years after termination of employment with Company (for any
reason or by either party) or for two (2) years after the termination of
any breach of any of my obligations under this Employee Agreement, I will
not, directly or indirectly, either as a proprietor, partner, employee,
or agent:
1. Accept employment or association without immediately informing
Company of such employment or association and also without
informing my new employer or associate of this Employee Agreement
and provide such employer or associate with a copy thereof.
2. Sell or solicit orders for any Conflicting Products:
(a) to or from any customer whom, within the three (3) year
period immediately preceding termination of my employment
with Company, I solicited or serviced or in connection with
whom I managed the solicitation or servicing thereof for
Company, or
(b) in any territory in which, within the three (3) year period
immediately preceding termination of my employment with
Company, I was working or which I managed for Company.
3. Supervise, manage, direct, promote, or assist in the development,
production, sales, or servicing of any Conflicting Products.
4. Directly or indirectly render services to any Conflicting
Organization except that I may accept employment with a
Conflicting Organization whose business is diversified and which
has separate and distinct divisions, if:
(a) my services are rendered to such a separate and distinct
division which of itself is not a Conflicting Organization,
and
(b) provided, prior to my accepting such employment, Company
shall receive, satisfactorily to Company, separate written
assurances from such Conflicting Organization and from me
that I will not directly or indirectly render services in
connection with any Conflicting Product.
G. If solely because of provisions of Paragraph F, I am unable to obtain
employment consistent with my abilities and education within one month
after termination of my employment with Company, and so advised the
Company in writing, Company shall make payments to me, equal to:
my monthly base pay at time of termination, and
if at time of termination I am also being paid a commission, my
average monthly commission that I shall have been paid under the
then current general commission plan over the period of time it
shall have been in effect for me but not to exceed the most recent
twelve (12) months, and
exclusive of any other extra compensation, bonus or employee
benefits,
for each month of such unemployment, commencing with the end of the
second month after termination of my employment with Company and ending
as described below.
1. I agree that during each month of such unemployment I will make
conscientious and aggressive efforts to find employment; and
within ten (10) days after the end of each calendar month, I will
give Company a detailed written account of my efforts to obtain
employment. Such account will include a statement by me that,
although I aggressively sought employment, I was unable to obtain
employment that would not conflict with the provisions of
Paragraph F of this Employee Agreement.
It is understood that Company shall, at its option, be relieved of
making a monthly payment to me for any month during which I shall
have failed to seek employment conscientiously and aggressively or
account to Company, as provided for immediately above.
2. Upon my fulfillment of the conditions set forth in Paragraph G (1)
above, Company is obligated to make and to continue to make such
monthly payments to me, unless:
(a) thirty (30) days before such monthly payment would
otherwise be due, Company gives me written permission to
accept available employment, or Company gives me a written
release from the obligations of Paragraph F, or
(b) I am deceased, or
(c) except as modified by subparagraph (5) below, I obtain
employment, (and I agree that I will give prompt written
notice of any such employment to Company), or
(d) I have already violated the provisions of Paragraphs C or F
above.
3. Discontinuance of such monthly payments by Company for any reason
shall not be considered to be a liquidation of any damages
suffered by Company, and Company may avail itself of any remedies
otherwise available under this Employee Agreement, or applicable
principles of law or equity for any breach or default by me of
this Employee Agreement.
4. Company's liability, under this Employee Agreement or in any
action relating thereto, shall be limited to an amount not to
exceed the equivalent of twenty-three (23) such monthly payments,
less any amounts already paid to me by Company pursuant to this
Employee Agreement; Company not being obligated under this
Employee Agreement to make a payment to me for the first month of
such unemployment.
5. If, after termination of my employment with Company, I obtain
other employment but because of the provisions of Paragraph F, my
position is such that my gross monthly income is actually less
than the gross monthly payment that would be due to me while
unemployed as first described above under this Paragraph G, then
Company's obligations to make payments to me for the period
specified in this paragraph will be limited to the difference
between:
(a) the gross monthly payment that would be due to me while
unemployed as first described under this Paragraph G, and
(b) any lesser gross monthly income I receive in my subsequent
employment.
H. All my obligations under this Employee Agreement, except for Paragraphs F
and G, shall be binding upon my heirs, spouses, assigns, and legal
representatives.
I. Company and I acknowledge and agree that the law of Minnesota shall
govern the respective rights and obligations of the parties to this
Employee Agreement. If any provision of this Employee Agreement shall be
voided by reason of a statute or law, as properly and judicially applied
to this Employee Agreement, then this Employee Agreement shall be
construed as if such provision is not contained herein insofar as such
particular jurisdiction is concerned.
J. This Employee Agreement replaces any existing agreement entered into by
me and Company for the same purpose relating generally to the same
subject matter; but such replacement shall not affect either party's
rights and obligations arising out of any such prior agreement not
otherwise superseded by this Employee Agreement which remaining rights
and obligations shall then continue to be in effect for that purpose.
K. Except as listed immediately below, I will not assert any rights under
any Inventions as having been made, conceived, authored or acquired by me
prior to my being employed by Company.
(Do not disclose or describe here anything you regard as being
confidential. What is wanted in this space, OR ON A SEPARATE ATTACHED
SHEET TO BE REFERENCED HEREBELOW, pursuant to Paragraph K above, is a
brief description of the product or process, etc., plus a list of source
documents, such as patents, patent applications, drawings, or written
descriptions, identified by number, title, and date.)
I UNDERSTAND AND EXPRESSLY ACKNOWLEDGE THAT IT IS EXTREMELY IMPORTANT TO
COMPANY THAT I FULFILL MY OBLIGATIONS UNDER THIS EMPLOYEE AGREEMENT.
FURTHER, IF I DO NOT FULFILL MY OBLIGATIONS IN WHOLE OR IN PART, IT LIKELY
WILL BE VERY DIFFICULT FOR COMPANY TO ASCERTAIN OR MEASURE DAMAGES COMPANY
HAS SUFFERED OR MIGHT SUFFER FROM MY FAILURE TO FULFILL SUCH OBLIGATIONS, OR
DAMAGES, IF DETERMINED, WILL BE INADEQUATE TO COMPANY'S INTERESTS. THEREFORE,
I FURTHER ACKNOWLEDGE THAT COMPANY WILL PREFER AND BE ENTITLED TO INJUNCTIVE
RELIEF (FOR EXAMPLE, BUT NOT LIMITED THERETO, PREVENTING ME FROM ACCEPTING
SUCH EMPLOYMENT) IN THE EVENT OF MY BREACH OR DEFAULT OF THIS EMPLOYEE
AGREEMENT.
I FURTHER ACKNOWLEDGE THAT ALL OF THE FOREGOING TERMS AND CONDITIONS SHALL BE
BINDING UPON ME DURING THE TERM OF MY EMPLOYMENT WITH COMPANY AND THEREAFTER
WHETHER OR NOT MY EMPLOYMENT BY COMPANY IS TERMINATED VOLUNTARILY OR
INVOLUNTARILY.
EMPLOYEE: EMPLOYER:
Signed by me at ______________________ Accepted for Xxxxxxx Company at
(City, State) Minneapolis, Minnesota
this ____ day of ______________, 19___ this ____ day of ______________, 19___
______________________________________ By: __________________________________
Employee's Signature Signature
______________________________________ ______________________________________
Home Address Title
______________________________________
City State Zip Code
XXXXXXX COMPANY
______________________________________ X.X. XXX 0000
Employee's Social Security Number Xxxxxxxxxxx, Xxxxxxxxx 00000
RULES OF ARBITRATION
1. DEMAND FOR ARBITRATION
Arbitration is commenced by either Executive or the Company under these
Rules of Arbitration ("these Rules") by serving upon the other party a demand
for arbitration. The demand for arbitration shall contain a clear statement
of the claim.
2. LOCALE OF ARBITRATION
The locale of the arbitration shall be Minneapolis, Minnesota, unless
the parties agree otherwise in writing.
3. THE ARBITRATION PROCESS
All disputes will be heard by a single arbitrator. The American
Arbitration Association National Rules for the Resolution of Employment
Disputes applicable at the time of the dispute will govern the arbitration
proceedings, so long as those guidelines incorporate the following minimum
elements of due process.
The arbitrator must apply the federal or state substantive law that
would have governed the employment dispute had it been heard in federal or
state court (including, but not limited to, the applicable statutes of
limitation, the applicable order and burdens of proof, and the applicable
remedies). The arbitrator may not grant remedies that would have been
unavailable if the dispute had been heard in federal or state court. The
arbitrator also may not award a remedy that neither Executive nor Company has
requested. Finally, the guidelines must provide for fair discovery.
4. REPRESENTATION BY COUNSEL
Any party may be represented by counsel. A party intending to be so
represented shall notify the other party and the arbitrator of the name and
address of counsel at least ten days prior to the date set for the hearing at
which counsel is first to appear.
5. CONFIDENTIALITY
All arbitration proceedings shall be confidential, information provided
in the course of discovery shall be confidential and all communications
between the parties and the arbitrator shall be confidential. The parties
and the arbitrator shall keep confidential the existence and nature of any
claim or dispute and of the arbitration proceedings, and, in the event of any
judicial proceedings relating to such arbitration or enforcement of the
award, shall cooperate to have the record of such arbitration proceedings
sealed. The arbitrator shall maintain the privacy of the hearing.
6. EXCLUSIONS FROM ARBITRATION AGREEMENT
The Arbitration Agreement does not apply to:
1. Workers' Compensation claims;
2. Unemployment Insurance claims;
3. Welfare and retirement benefit claims which are covered by
special appeal procedures;
4. Claims for injunctive or equitable relief (for example,
claims by Tennant to protect its confidential, proprietary,
or trade secret information); and
5. Claims that are expressly excluded by statute from
arbitration or that are expressly required by federal
statute to be arbitrated under a different procedure.
7. BINDING NATURE OF ARBITRATION
The result of the arbitration is final and binding upon Executive and
Company.
8. AMENDMENT OF RULES
The parties to the arbitration may by mutual written agreement amend,
modify or supplement these Rules.
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