Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("AGREEMENT") is effective as of the 31st day of July,
2000, by and between REDLINE PERFORMANCE PRODUCTS, INC., a Minnesota corporation
having its principal place of business in Vista, California (the "COMPANY"), and
XXXX XXXXX, a resident of the State of California ("EMPLOYEE").
RECITALS
WHEREAS, the Company desires to obtain the full-time services of Employee
and Employee desires to be employed by the Company, and each is willing to enter
into this Agreement, on the terms and subject to the conditions contained
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
1.) Employment of Employee; Term.
(a) Employment. The Company agrees to and hereby does employ Employee,
and Employee accepts such employment and agrees to discharge faithfully,
diligently and to the best of Employee's abilities, the responsibilities
of such employment on the terms and conditions set forth herein.
(b) Term. The Company hereby retains Employee for a term of four (4)
years, (the "TERM") commencing on the date hereof and terminating on the
fourth anniversary date of the date hereof, unless renewed pursuant to
the next sentence or terminated pursuant to Section 10 hereof. This
Agreement will automatically renew for successive one (1) year periods
(each a "RENEWAL PERIOD") unless one party provides the other with
written notice of non-renewal at least sixty (60) days, but not more than
one hundred twenty (120) days prior to the expiration of the Term or any
Renewal Period.
2.) Duties of Employee. During the Term and any Renewal Period, Employee
will:
(a) Full-Time Employment. Devote substantially all of Employee's business
time and attention necessary to carry out the duties of Employee
hereunder, applying Employee's best effort and skill for the benefit of
the Company. Employee will not, without prior written consent of the
Company, render services of any kind to others, or engage in any other
business activity that in the Company's sole discretion would materially
interfere with the performance of Employee's duties under this Agreement.
(b) Duties. Act as President, Chief Executive Officer, Treasurer and
Chief Financial Officer for the Company and perform the services and
assume the duties and responsibilities assigned to Employee from
time-to-time by the Company's Board of
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Directors. In performance of the services hereunder, Employee will comply
with such rules, regulations, instructions, and policies, as the Company
may from time-to-time adopt.
(c) Report directly to the CEO [or Board of Directors, if applicable] of
the Company or to another individual designated by the Board of Directors
on a regular basis and as further requested by such directors or
designated individual.
3.) Compensation. Employee's compensation shall be:
(a) Base Salary. In consideration for Employee's performance of services
hereunder and Employee's observance of all of the provisions of this
Agreement, the Company agrees to pay in accordance with its payroll
practices in effect at the time, and Employee agrees to accept, Ninety
Thousand Dollars ($90,000) on an annualized basis (the "BASE SALARY").
Prior to each anniversary date of this Agreement, the Committee, as
described below, shall consider the Employee's Base Salary for the next
year of this Agreement, and may, in its sole discretion, increase the
Base Salary for future years. The "COMMITTEE" shall mean a committee of
the Company's Board of Directors consisting only of non-employee
directors.
(b) Payment of Base Salary. Employee's Base Salary will be paid
semi-monthly in accordance with the Company's general payroll practices
for employees. Base Salary payments will be subject to all appropriate
withholdings for state, federal and local taxes, and such other
deductions as are otherwise required by law or authorized by Employee.
(c) Bonuses. Employee will be entitled to such yearly bonuses and
compensation in addition to Base Salary in any amount, including zero, as
determined by the Committee in its sole discretion.
(d) Other Benefits. Employee will be entitled to participate in any
fringe benefit programs provided by the Company for all of its full-time
employees, pursuant to the terms of such programs, including, without
limitation, any medical and hospitalization insurance programs.
(e) Vacation. Employee will accrue three (3) weeks of paid vacation each
calendar year during the Term and any Renewal Period. In addition,
Employee will receive any holidays recognized by the Company as paid days
off. Unused vacation time in any calendar year will accumulate and be
carried over into subsequent years; provided, however, that Employee may
not accrue more than six (6) weeks of paid vacation at any time, and
efforts to accrue paid vacation time in excess of six (6) weeks shall be
ineffective.
(f) Business Expenses. The Company will reimburse Employee for business
expenses reasonably incurred by Employee in connection with the
performance of Employee's duties hereunder, upon the presentation by
Employee of receipts and itemized accounts of such expenditures in
accordance with the Company's policies and
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the rules and regulations of the Internal Revenue Service. Except for
expenses previously approved by the Board or its designee, the Board may
take such action as may be necessary to enforce the repayment to the
Company by Employee of any amounts reimbursed upon finding that such
reimbursement was not made primarily for the purpose of advancing the
legitimate interests of the Company.
(g) Relocation Allowance. The Company and Employee acknowledge that the
Company will likely relocate its executive offices and principal
operations to the State of Minnesota or to another northern-tier state in
the United States. Employee and the Company agree that Employee will
relocate as provided herein and that any relocation requested by the
Company shall not be deemed a termination of this Agreement without Good
Cause as described in Section 4(b). Upon presentation by Employee of
receipts of expenses incurred by employee in relocating from California
to another location, the Company will pay Employee a relocation allowance
in an amount equal to the amount incurred by Employee in relocation;
provided, however, such amount will not exceed Five Thousand Dollars
($5,000).
4.) Termination of Agreement. This Agreement may be terminated as
follows:
(a) Good Cause. Immediately by the Company for "Good Cause" upon notice
of such termination to Employee. For purposes of this Agreement, "GOOD
CAUSE" means Employee's: (i) failure or refusal to observe or perform any
of the material provisions of this Agreement or any other written
agreement with the Company, or to substantially perform any of the
material duties required of Employee under this Agreement or any other
written agreement with the Company; or (ii) commission of fraud,
misappropriation, embezzlement or other acts of dishonesty, or conviction
for any crime punishable as a felony or as a gross misdemeanor involving
moral turpitude, which actions, in the judgment of the Company, have a
material adverse effect upon Employee's ability to perform the duties
which are assumed or assigned under Section 2 hereof, or which actions or
occurrences are materially adverse to the interests of the Company.
Termination under 4(a)(i) shall be effective upon thirty (30) days prior
written notice and Employee's failure to remedy the problem within such
period. Termination under 4(a)(ii) shall be effective immediately upon
written notice.
(b) Without Good Cause. By the Company without Good Cause upon not less
than sixty (60) days' prior written notice from the Company to Employee.
(c) By Employee. By Employee for any reason upon not less than sixty (60)
days' prior written notice from Employee to the Company.
(d) Death/Disability. Automatically upon Employee's death or disability.
For the purposes of this Agreement, "DISABILITY" means the inability of
Employee to perform Employee's duties under this Agreement for a total of
ninety (90) days during any consecutive twelve (12) month period. If a
question exists concerning the capacity of Employee to perform his
duties, the Company may require Employee to submit to a medical
examination by a doctor or medical facility licensed to practice
medicine. The
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Company and Employee will mutually agree upon the physician and medical
facility which will conduct the examination and provide treatment.
5.) Obligations upon Termination. If Employee's employment hereunder is
terminated, the Company will have no further obligation to Employee under this
Agreement, except as set forth in Section 6 below, if applicable. However,
termination of Employee's employment will not terminate or extinguish Employee's
obligations under Sections 7, 8, 9, 10, 11 or 12 or Employee's obligation or
liability to pay to the Company any amounts owed to the Company by Employee,
including, but not limited to, any amounts misappropriated or improperly
obtained by Employee, without prejudice to any other rights or remedies of the
Company at law or in equity. Employee and the Company acknowledge and agree that
no part of any incentive compensation or bonus that is based on the Company's
financial performance for a fiscal year, if any, is payable if Employee's
employment is terminated for any reason prior to expiration of such fiscal year.
6.) Severance Payments. In the event the Company terminates this
Agreement pursuant to Section 4(b) above, the Company will pay Employee his Base
Salary in effect as of the date of termination, for the remainder of the Term,
or for one (1) year, whichever is shorter. All payments made pursuant to this
Section will be paid semi-monthly in accordance with the Company's general
payroll practices for employees. All payments will also be subject to all
appropriate withholdings for state, federal and local taxes, and such other
deductions as are otherwise required by law or authorized by Employee. The
Company shall not be obligated to make any payments as provided in this Section
if Employee has violated or is not in compliance with Sections 7, 9, 10 or 12 of
this Agreement.
7.) Confidential Information.
(a) Definition. For purposes of this Agreement, "CONFIDENTIAL
INFORMATION" means any information that is not generally known to the
public that relates to the existing or reasonably foreseeable business of
the Company which has been expressly or implicitly protected by the
Company or which, from all of the circumstances, Employee knows or has
reason to know that the Company intends or expects the secrecy of such
information to be maintained. Confidential Information includes, but is
not limited to, information contained in or relating to the development
plans or proposals, marketing plans or proposals, strategies, financial
statements, budgets, trade secrets, test data, other data, pricing
formulas, customer and supplier information, Employee information,
research and development information, designs, products, processes,
manufacturing techniques, know-how and other proprietary information of
the Company, whether written, oral or communicated in another type of
medium, whether disclosed prior to or after the date of this Agreement,
whether disclosed directly or indirectly, whether originals or copies and
whether or not legal protection has been obtained or sought under
applicable law. Employee will treat all such information as Confidential
Information regardless of its source and whether or not marked as
confidential.
(b) Technology. Employee recognizes that the Company is continually
engaged in the design, development and utilization of technology related
to the production of high
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performance vehicles, including, but not limited to snowmobiles
(hereinafter the "TECHNOLOGY"), and that such Technology is kept in
strict confidence by the Company. Employee is aware that the Technology
is vital to the Company's success.
(c) Protection of Confidential Information. Employee further understands
that the success of the Company depends, to a great extent, on its
ability to protect its Confidential Information, including that
comprising the Technology, from unauthorized disclosure, use or
publication. Inasmuch as Employee will gain knowledge of or have access
to the Confidential Information about the Technology, in whole or in
part, in the course of employment, Employee acknowledges that the Company
is and will be entrusting Employee with this valuable information.
(d) Contributions of Employee. Employee understands that the Company is
engaged in a continuous program of research, development, production and
marketing of its present and future products, and the enhancement of its
Technology. Employee further understands that, as an essential part of
Employee's employment by the Company, Employee is expected to make new
contributions to the Company.
(e) No Disclosure. Employee will not, during the Term or any Renewal
Period thereof, except in conjunction with his duties hereunder, or
following the termination of Employee's employment with the Company,
directly or indirectly, use, show, display, release, discuss,
communicate, divulge or otherwise disclose Confidential Information to
any person, firm, corporation, association or other entity for any reason
or purpose whatsoever, without the prior written consent or authorization
of a duly authorized officer of the Company.
(f) Title. All documents or other tangible or intangible property
relating in any way to the business of the Company which are conceived or
generated by Employee in performing his duties for the Company or come
into Employee's possession in performing his duties for the Company
during the Term or any Renewal Period will be and remain the exclusive
property of the Company. At termination or whenever requested by the
Company, Employee will return all such documents, and tangible and
intangible property, and all copies thereof, including, but not limited
to, all records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, magnetic tapes,
computer files, disks, calculations or copies thereof, which are the
property of the Company or which relate in any way to the business,
customers, products, practices or techniques of the Company, and all
other property of the Company, including, but not limited to, all
documents of the Company.
(g) Compelled Disclosure. In the event a third party seeks to compel
disclosure of Confidential Information by Employee by judicial or
administrative process, Employee will promptly notify the Board of
Directors of the Company of such occurrence and furnish to the Board of
Directors a copy of the demand, summons, subpoena or other process served
upon Employee to compel such disclosure, and will permit the Company to
assume, at its expense, but with Employee's cooperation, defense of such
disclosure demand. In the event that the Company refuses to contest such
third party disclosure
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demand under judicial or administrative process, or a final judicial
order is issued compelling disclosure of Confidential Information by
Employee, Employee will be entitled to disclose such information in
compliance with the terms of such administrative or judicial process or
order without violating his obligations under this Agreement.
8.) Employee Representations and Warranties. Employee represents and
warrants the following:
(a) No Breach. Performance of his duties for the Company and his
obligations under the terms of this Agreement does not and will not cause
Employee to breach any agreement, commitment or understanding Employee
has with any other party, whether formal or informal, to assign to such
other party inventions Employee may hereafter make, or to keep in
confidence proprietary information of such other party which Employee
acquired or learned prior to Employee's employment by the Company.
(b) Former Employment. To Employee's knowledge, Employee has not brought
and will not bring to the Company, or use for the benefit of the Company,
any materials and/or documents of a former employer (which, for purposes
of this Section, will also include persons, firms, corporations and other
entities for which Employee has acted as an independent contractor or
consultant) that are not generally available to the public or to the
trade, unless Employee has obtained written authorization from any such
former employer permitting Employee to retain and use said materials
and/or documents. With respect to any materials and/or documents that
Employee may bring to the Company for use in the course of Employee's
employment, Employee hereby further represents and warrants that
Employee's use (or the Company's use) of such materials and/or documents
will not violate the intellectual property rights of any former employer
of Employee, or any other party.
9.) Employer Ownership of Intellectual Property.
(a) Disclosure of Inventions. Employee hereby agrees to disclose promptly
to the Company (or any persons designated by it) all developments,
designs, creations, improvements, original works of authorship, formulas,
processes, know-how, techniques and/or inventions, hereinafter referred
to collectively as "INVENTIONS"): (i) which are made or conceived or
reduced to practice by Employee, either alone or jointly with others, in
performing his duties during the period of Employee's employment, by the
Company, or which are reduced to practice during the period of one (1)
year following the termination of Employee's employment, that relate to,
at the time of conception or reduction to practice, the business of the
Company or actual or demonstrably anticipated research or development of
the Company; or (ii) which result from any work performed by Employee for
the Company; or (iii) which result from Employee's use of the premises or
other resources owned, leased or contracted by the Company.
(b) Property of Company. Employee agrees that all such Inventions which
the Company in its sole discretion determines to be related to its
business or its research or development, or which result from work
performed by Employee for the Company, will
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be the sole and exclusive property of the Company and its assigns, and
the Company and its assigns will have the right to use and/or to apply
for patents, copyrights or other statutory or common law protections for
such Inventions in any and all countries. Employee further agrees to
assist the Company in every proper way (but at the Company's expense) to
obtain and from time to time enforce patents, copyrights and other
statutory or common law protections for such Inventions in any and all
countries. To that end, Employee will execute all documents for use in
applying for and obtaining such patents, copyrights and other statutory
or common law protections therefor and enforcing the same, as the Company
may desire, together with any assignments thereof to the Company or to
persons or entities designated by the Company. Employee's obligations
under this Section will continue beyond the termination of Employee's
employment with the Company, but the Company will compensate Employee at
a reasonable rate after such termination for time actually spent by
Employee at the Company's request in providing such assistance.
(c) Works for Hire. Employee hereby acknowledges that all original works
of authorship which are made by Employee (solely or jointly with others)
within the scope of Employee's employment which are protectable by
copyright are "works for hire," as that term is defined in the United
States Copyright Act (17 USCA, Section 101).
10.) Assignment of Inventions. Any provision in this Agreement requiring
Employee to assign Employee's rights in any Invention to the Company will not
apply to any invention that is exempt under the provisions of Section 181.78 of
the Minnesota Statutes. The statute states that such assignment agreements do
not apply:
To an invention for which no equipment, supplies, facility or
trade secret information of the employer was used and which was
developed entirely on the employee's own time, and (1) which does
not relate (a) directly to the business of the employer or (b) to
the employer's actual or demonstrably anticipated research or
development, or (2) which does not result from any work performed
by the employee for the employer. (Emphasis added).
Employee will execute the Invention Assignment Notice attached here to as
Exhibit A and incorporated herein by reference.
11.) Power of Attorney. In the event the Company is unable, after
reasonable effort, to secure Employee's signature on any document needed to
apply for, obtain or enforce any intellectual property rights relating to any
Invention with respect to which Employee has made an inventive contribution,
whether because of Employee's unavailability, or Employee's physical or mental
incapacity, or for any other reason whatsoever, Employee hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as Employee's agents and attorneys-in-fact to act for and in Employee's behalf
and stead solely for and in connection with the execution and filing of any such
document with the same legal force and effect as if such acts were performed by
Employee.
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12.) Covenants Not to Solicit or Compete. Employee and the Company agree
that the Company would be substantially harmed if Employee competes with the
Company during or after termination of employment with the Company. Therefore,
in consideration of the compensation and the benefits offered to him, Employee
agrees that:
(a) During Employee's employment with the Company and for a period of one
(1) year thereafter, Employee will not, either directly or indirectly,
whether alone or in concert with others, solicit or entice or in any way
divert any customer or supplier to do business with any business entity
in competition with the Company.
(b) During Employee's employment with the Company, and for any period
thereafter during which Employee receives severance benefits, Employee
will not, either alone or with others, directly or indirectly, engage in
any business enterprise in competition with the Company or otherwise plan
or take any preliminary steps, either alone or in concert with others, to
set up or engage in any competitive business enterprise.
(c) During Employee's employment with the Company and for a period of one
(1) year thereafter, Employee will not, directly or indirectly, alone or
in concert with others, solicit any of the Company's employees for
employment or other engagement by any other company which is, by any
reasonable standard, in competition with the Company.
Employee understands that the above limitations are necessary in order to reduce
the risk that the Company's Confidential Information, including its Technology,
will be disclosed to and used by its competitors to its detriment. Employee
further understands and agrees that the Company's obligation to make any
payments pursuant to Section 6 of this Agreement shall immediately and forever
terminate upon any violation or failure to comply with this Section 12 by
Employee.
13.) Defense to Enforcement. The existence of any claim or cause of
action by Employee against the Company shall not constitute a defense to the
enforcement of Employee's obligations herein.
14.) No Restraint on Employment. Nothing contained in this Agreement will
be construed to prevent Employee from engaging in a lawful profession, trade or
business after the termination of Employee's employment with the Company. This
Agreement will be construed only as one which prohibits Employee from engaging
in acts which are unfair to the Company, and which are in violation of the
confidence and trust reposed in Employee by the Company with respect to its
intellectual property, including but not limited to Confidential Information and
Technology.
15.) Consideration for Sections 7, 8, 9, 10, 11 and 12. Employee
acknowledges and agrees that he has been offered and has voluntarily accepted
the following consideration for his agreement to the terms of Sections 7, 8, 9,
10, 11 and 12 of this Agreement:
(a) The Company will grant Employee a five -year option to purchase
50,000 shares of the Company's One Cent ($0.01) per share par value
common stock pursuant to the Company's 2000 Stock Option Plan ("OPTION
PLAN"), at an exercise price of One and
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37.5/100 Dollars ($1.375) per share, subject to the standard provisions
and other terms and conditions for options granted under the Option Plan.
The options will vest in accordance with the terms of the Option Plan in
the following increments: 12,500 shares on the first anniversary date of
the date of grant; 12,500 shares on the second anniversary date of the
date of grant; 12,500 shares on the third anniversary date of the date of
grant; and 12,500 shares on the fourth anniversary date of the date of
grant. Employee acknowledges that the stock options granted Employee
under the Option Plan will be granted pursuant to exemptions from the
registration and prospectus requirements of the Securities Act of 1933,
as amended, and that the shares of common stock of the Company acquired
by Employee upon the exercise of such stock options may be subject to
restrictions on the resale thereof and confirms that he has been advised
of, and is aware of, such resale restrictions.
(b) The Company will grant Employee One Hundred Thousand (100,000) shares
("RESTRICTED SHARES") of the Company's One Cent ($0.01) per share par
value common stock pursuant to that certain Restricted Stock Agreement of
even date hereof ("RESTRICTED STOCK AGREEMENT"). The Restricted Shares
will be subject to the risk of forfeiture which risk will terminate over
a three (3) year period based upon the Company's achievement of certain
milestones described in the Restricted Stock Agreement and upon
Employee's continued employment with the Company. In the event the
Company fails to meet any of those certain milestones as more fully
described in the Restricted Stock Agreement, the number of Restricted
Shares subject to the respective milestones will be forfeited by
Employee.
16.) Voting of Shares.
(a) Employee will vote all shares of the Company's voting capital stock
which Employee currently owns or which Employee may hereafter acquire in
such manner as to cause the Company's Board of Directors to be
constituted as provided in Sections 6(a) and 6(b) of the Agency Agreement
dated July 31, 2000, between the Company and Xxxxxxxxx & Company, LLC
(the "AGENCY AGREEMENT").
(b) The provisions of this Section 16 shall survive the termination or
expiration of this Agreement; provided that Section 16 shall terminate
upon the termination of Sections 6(a) and 6(b) as provided in Section
6(c) of the Agency Agreement.
(c) Certificates representing shares of the Company's voting capital
stock held by Employee shall be affixed with a legend referencing this
Agreement and the voting restrictions hereof. Until terminated as
provided in Section 16(b), the voting requirements shall apply to any
transferee of such shares.
17.) Pre-existing Proprietary Inventions. Employee has identified on
Exhibit B attached hereto a complete list of all inventions or improvements
which have been made or conceived or first reduced to practice by Employee alone
or jointly with others prior to Employee's employment by the Company and which
Employee desires to exclude from the operation of this Agreement. If there is no
such list on Exhibit B, Employee represents that
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Employee has made no such inventions or improvements at the time of signing of
this Agreement.
18.) Communication with Subsequent Employer. Upon termination of
Employee's employment, Employee hereby authorizes the Company to notify any
other party, including without limitation, Employee's future employers, future
partners and customers of the Company, as to the existence of this Agreement,
and the existence of Employee's covenants and responsibilities with respect to
the confidential and proprietary information entrusted to Employee hereunder.
19.) Breach of Restrictive Covenants.
(a) Relief. It is agreed that it would be difficult or impossible to
ascertain the measure of damages to the Company resulting from any breach
of Sections 7 or 12, and that injury to the Company from any such breach
may be irremediable, and that money damages therefor may be an inadequate
remedy. In the event of a breach or threatened breach by Employee of the
provisions of any of such Sections, the Employee agrees to the entry by a
court of competent jurisdiction of a temporary or permanent injunction or
other equitable remedy enjoining Employee's breach or threatened breach,
without the necessity of proof of damages, in addition to any other
rights or remedies that the Company may have available under applicable
law for such breach or threatened breach, including the recovery of
damages.
(b) Binding Effect. The provisions of Sections 7, 8, 9, 10, 11 and 12 of
this Agreement will continue to be binding upon Employee, notwithstanding
the termination of employment with the Company for any reason whatsoever.
Such covenants will be deemed and construed as separate agreements
independent of any other provisions of this Agreement. The existence of
any claim or cause of action by Employee against the Company, whether
predicated on this Agreement or otherwise, will not constitute a defense
to the enforcement by the Company of any or all such Sections.
20.) Miscellaneous Provisions. This Agreement includes the following
provisions, which shall survive any expiration or termination of this Agreement:
(a) Definitions. The term "Company" when used in Sections 7 - 18 of this
Agreement will mean in addition to the Company, any affiliate of the
Company. The terms "affiliate" or "affiliates" when used in this
Agreement will mean any person that controls the Company, or is
controlled by the Company, or is under common control with the Company.
(b) Entire Agreement; Modification. This Agreement constitutes the full
and complete understanding and agreement of the parties with respect to
the terms contained herein, and supersedes any prior understanding or
agreement between the parties relating to these terms. No amendment,
waiver or modification of any provision of this Agreement will be binding
unless made in writing and signed by the parties hereto.
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(c) Assignment. The rights and benefits of the Company and its permitted
assigns under this Agreement will be fully assignable and transferable.
This Agreement is a personal service contract and will not be assignable
by Employee, but all obligations and agreements of Employee hereunder
will be binding upon and enforceable against Employee and Employee's
personal representatives, heirs, legatees and devisees.
(d) Notices. To be effective, all notices, consents or other
communications required or permitted hereunder will be in writing. A
written notice or other communication will be deemed to have been given
hereunder: (i) if delivered by hand, when the notifying party delivers
such notice or other communication to the other party to this Agreement;
(ii) if delivered by facsimile or overnight delivery service, on the
first business day following the date such notice or other communication
is transmitted by facsimile or timely delivered to the overnight courier;
or (iii) if delivered by mail, on the third business day following the
date such notice or other communication is deposited in the U.S. mail by
certified or registered mail addressed to the other party. Mailed or
telecopied communications will be directed as follows unless written
notice of a change of address or facsimile number has been given in
writing in accordance with this Section:
If to Company: Redline Performance Products, Inc.
0000 Xxxxxxx Xxx
Xxxxx, XX 00000
ATTN: President
Facsimile No. (000) 000-0000
With a copy to: Larkin, Hoffman, Xxxx & Xxxxxxxx, Ltd.
0000 Xxxxx Xxxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Employee: Xxxx Xxxxx
0000 Xxxxxxxxx Xxxxx
XxXxxxx, Xxxxxxxxxx 00000
(e) Waiver. No waiver of any term, condition or covenant of this
Agreement by a party will be deemed to be a waiver of any subsequent
breaches of the same or other terms, covenants or conditions hereof by
such party.
(f) Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed to be an original, and all such counterparts will
constitute one instrument.
(g) Limitation; Severability of Provisions. To the extent any court of
competent jurisdiction determines that any covenant contained in this
Agreement is unreasonable or unenforceable in any respect, the court may
limit such covenant to render it reasonable in
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light of the circumstances in which it was made, and such covenant, as so
limited, will be specifically enforced. In the event the court refuses to
limit such covenant or provision and the covenant or provision is found
to be invalid or unenforceable, the same will not affect in any respect
whatsoever the validity of the remainder of this Agreement.
(h) Governing Law; Venue. This Agreement, all exhibits hereto, and all
acts and transactions pursuant or relating hereto, and all rights and
obligations of the parties hereto will be governed, construed, and
interpreted in accordance with the domestic laws of the State of
Minnesota without giving effect to any choice of law provision or rule
(whether of the State of Minnesota or any other jurisdiction that would
cause application of the laws of any jurisdiction other than the State of
Minnesota). In order to induce the parties to accept this Agreement, and
as a material part of the consideration therefor: (i) the parties hereto
agree that all actions or proceedings arising out of this Agreement will
be litigated in courts located within Hennepin County, Minnesota; (ii)
the parties irrevocably and unconditionally consent to the exclusive
jurisdiction of such courts and consent to the service of process in any
such action or proceeding by personal delivery or any other method
permitted by law; (iii) the parties agree that venue is proper in
Hennepin County, Minnesota, for those matters not subject to arbitration;
(iv) the parties waive any and all rights they may have to transfer or
change the venue of any such action or proceeding; and (v) the parties
agree that service of any process, summons, notice or document by U.S.
Registered Mail to such party's respective address set forth above shall
be effective service of process for any such action or proceeding with
respect to any matters and to which such party has submitted to
jurisdiction as set forth in this Section.
(i) Arbitration. Except in the event of a breach or threatened breach by
Employee of Sections 7 or 12, any controversy or claim arising out of or
relating to this Agreement or the breach, termination, or invalidity
thereof between the parties will be referred to the American Arbitration
Association (the "ASSOCIATION"), Minneapolis, Minnesota, and any such
proceeding will be conducted in the Minneapolis, Minnesota metropolitan
area. Any such arbitration will be before a panel of three arbitrators
and will be conducted in accordance with the rules of the Association,
except that the Federal Rules of Civil Procedure and the Federal Rules of
Evidence will apply at any hearing. No arbitrator will have any
connection to the parties to this Agreement. The arbitrators will have
the right to award or include in their award any relief they deem proper,
including without limitation, money damages, interest, specific
performance, attorneys' fees, costs and expenses incurred, but not
exemplary or punitive damages. The award decision of the arbitrators will
be conclusive and binding upon all parties and may be entered in any
court of competent jurisdiction. The parties agree to bring all claims in
this arbitration which relate to the original claim.
(j) Representation by Counsel; Interpretation. The Company and Employee
each acknowledge that each party to this Agreement has been, or has had
the opportunity to be, represented by counsel in connection with this
Agreement and the matters contemplated by this Agreement. Accordingly,
any rule of law or any legal decision that would require interpretation
of any claimed ambiguities in this Agreement against the party that
drafted
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it has no application and is expressly waived. The provisions of this
Agreement will be interpreted in a reasonable manner to effect the intent
of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYEE
/s/ Xxxx Xxxxx
----------------------------------------
COMPANY
REDLINE PERFORMANCE PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Its: Vice President
----------------------------------
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REDLINE PERFORMANCE PRODUCTS, INC.
EMPLOYMENT AGREEMENT
Exhibit A
INVENTION ASSIGNMENT NOTICE
Mr. _____________:
You are notified that the employment agreement between you and Redline
Performance Products, Inc., effective July 31, 2000, 2000, does not apply to any
invention that qualifies fully under the provisions of Minnesota Statutes
Section 181.78.
REDLINE PERFORMANCE PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Its: Vice President
----------------------------------
I acknowledge receiving a copy of this notice
Date: July 31, 2000
/s/ Xxxx Xxxxx
----------------------------------------
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REDLINE PERFORMANCE PRODUCTS, INC.
EMPLOYMENT AGREEMENT
Exhibit B
PRE-EXISTING PROPRIETARY INVENTIONS
Name/ Title of Proprietary Invention* Description of Proprietary Invention
------------------------------------- ------------------------------------
* Note: If no Proprietary Inventions are listed above Employee agrees that none
exist.
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