Exhibit 10.5
LASERMASTER CORPORATION
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of the day of , 1995, between
LaserMaster Corporation, a Minnesota corporation with a principal place of
business at 0000 Xxxxx Xxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 ("Company"), and
Xxxxxxx X. Xxxxx of 0000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx, XX 00000 ("Employee").
WHEREAS the Company is desirous of employing Employee, and Employee is
desirous of continued employment with the Company,
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein, it is agreed by and among the parties hereto as follows:
1. COVENANTS OF THE COMPANY.
(a). APPOINTMENT: Beginning as of September 1, 1995 (the "Commencement
Date") the Company shall employ Employee as Chief Financial Officers.
(b). COMPENSATION: So long as Employee is employed by the Company and is
in compliance with this Agreement, the Company shall pay Employee a salary at a
minimum annual rate of $144,000, as the same may be increased from time to time
by the Chief Executive Officer of the Company, subject to withholdings required
by law. Said salary shall be payable no less frequently than semi-monthly.
(c). EXPENSES: The Company shall reimburse Employee for reasonable out-
of-pocket expenses incurred in connection with Employee's duties and
responsibilities under this Agreement, including expenses for authorized travel
and other authorized items.
(d). BENEFITS: Subject to eligibility, vesting and other provisions of
the Company's employee benefit programs, as in effect from time to time,
Employee shall be entitled to participate in all such programs that the Company
offers during the term of this Agreement to its other employees serving in
similar capacities. Such benefits shall include:
(i) health insurance as currently provided by the Company to
salaried employees;
(ii) vacation, holiday and sick leave as provided for in personnel
guidelines as reasonably adopted and established by the Company.
2. COVENANTS OF EMPLOYEE.
(a) ASSUMPTION OF RESPONSIBILITIES: Employee shall serve in the position
set forth above, or a position mutually agreed upon by the Employee and the
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CEO of the Company, under the terms and conditions provided herein. During the
term of Employee's employment hereunder, Employee shall devote Employee's full
business time, energy and skills to the affairs of the Company, shall use
Employee's best efforts in furtherance of the business of the Company and shall
perform to the best of Employee's ability such services and duties as may be
assigned or delegated to Employee from time to time by or under the authority of
the Company's Board of Directors or Chief Executive Officer. All fees, profits
and other amounts payable as the result of Employee's rendering services while
this Agreement is in effect shall belong to the Company, except as may arise
from activities unrelated to the Company's activities and undertaken by Employee
during non-working hours, or passive investment activities.
(b) NON-DISCLOSURE OF TRADE SECRETS: The Employee recognizes and
acknowledges that there may be made available to Employee in the course of
Employee's employment hereunder Trade Secrets and Confidential Information of
the Company, treated as such by the Company, including without limitation
technological information, know how, customer lists, forecasts, expansion,
marketing and other strategic plans (collectively the "Trade Secrets"). The
Employee hereby acknowledges that the Trade Secrets, as they may exist from time
to time, are a valuable, special and unique asset of the business of the
Company. The Employee shall not, during or after the term of Employee's
employment hereunder, make any use of any Trade Secrets or disclose any Trade
Secrets to any person, firm, corporation, associate or other entity for any
reason or purpose whatsoever, other than in connection with the normal
performance of Employee's duties hereunder. The obligations of this Section
2(b) shall not apply (i) to any information that has been disclosed in publicly
available sources of information; (ii) to any information that is, through no
fault of Employee, hereafter disclosed in publicly available sources of
information; or (iii) to any information generally related to and determinable
in the technical fields of interest to the Company, but not specifically derived
from the Company's research and development activities or the results of such
activities. The Company shall be entitled to obtain injunctive relief (without
posting a bond), restraining the Employee from disclosing or using any Trade
Secrets in violation of this Section 2(b), and to recover any and all costs and
expenses incurred in enforcing this Agreement, in addition to any other relief
provided by applicable law. The Employee acknowledges that the nature of the
business of the Company and the value of the Trade Secrets render inadequate any
remedy at law which may be obtained for a breach of this Section 2(b).
As a matter of record, Trade Secrets shall not include knowledge,
information, and expertise as Employee shall have had or developed prior to
employment hereunder.
(c) PERSONNEL GUIDELINES: Employee will be bound by the Company's
personnel guidelines, as they may reasonably be adopted, changed, or amended
from time to time.
(d) INVENTIONS: Employee will promptly disclose to the Company, or any
persons designated by it, all improvements, inventions, formulae, processes,
techniques, know-how and data, whether or not patentable, made or conceived or
reduced to practice or learned by Employee, either alone or jointly with others,
during the period of Employee's employment hereunder, which are related to or
useful in the business of the Company, or result from tasks assigned Employee by
the Company, or result from use
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of premises owned, leased or contracted for by the Company (all said
improvements, inventions, formulae, processes, techniques, know-how and data
shall be collectively hereinafter be called "Inventions").
Employee agrees that all Inventions shall be the sole property of the
Company and its assigns, and the Company and its assigns shall be the sole owner
of all patents and other rights in connection therewith. Employee hereby
assigns to the Company any rights Employee may have or acquire in all
Inventions. Employee further agrees, as to all Inventions, to assist the
Company in every proper way (but at the Company's expense) to obtain and from
time to time enforce patents and copyrights on and trade secrets relating to
Inventions in any and all countries, and to that end Employee will execute all
documents for use in applying for and obtaining such patents and copyrights
thereon and enforcing same, as the Company may desire, together with any
assignments thereof to the Company or persons designated by it.
Employee's obligation to assist the Company in obtaining and enforcing
patents and copyrights for and trade secrets relating to Inventions in any and
all countries shall continue beyond the termination of Employee's employment,
but the Company shall compensate Employee at a reasonable rate after such
termination for time actually spent by Employee at the Company's request on such
assistance.
The foregoing provision shall not apply to Inventions:
(i) for which no equipment, supplies, facility or Trade Secret information
of the Company was used; and
(ii) which were developed entirely on Employee's own time; and
(iii) which do not result from any work performed by Employee for the
Company.
(e) NEGATIVE COVENANTS: Employee warrants that Employee will not utilize
any proprietary material of any party in Employee's work for the Company, will
not knowingly infringe on the patent, copyright or trademark of any other party
in Employee's work for the Company, and is not bound or restricted in Employee's
work for the Company as a result of any non-competition agreement or agreements
to which Employee is bound, except as set forth in Attachment 1, hereto.
Violation of Employee of any of these negative covenants shall be cause
for immediate termination for cause (as provided herein) of Employee's
employment hereunder.
3. NON-COMPETITION.
During the term of Employee's employment by the Company and for a period
of two years after the termination, for any reason, of Employee's employment
with the Company, Employee shall not directly or indirectly engage or
participate in or assist, as owner, part owner, partner, director, officer,
trustee, employee, agent, or consultant, or in any other capacity, any person,
business or other organization designing, developing,
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manufacturing, licensing, providing, selling or marketing any product, process,
system or service, then in existence or under development, which is the same as,
similar to, competes with or has a usage allied to, a product, process, system
or service upon which Employee has worked during the last three years of
Employee's employment with Company, or about which Employee has been provided or
acquired confidential or proprietary information of the Company.
4. TERM OF AGREEMENT.
This Agreement shall commence as the date first set forth above (the
"Commencement Date"), and shall extend, unless terminated earlier as provided
herein, for a period of one (1) year from such Commencement Date, and shall
extend and renew automatically for additional one year periods upon each
subsequent anniversary of the Commencement Date (hereinafter, an "Anniversary
and Renewal Date"), unless terminated by Employee upon thirty (30) days or more
written notice to the Company. Company may terminate this Agreement without
cause, or upon sale or termination of the Company's business, as provided in
section 5(b) herein, upon twelve (12) months written notice to Employee, or, at
the option of Company, upon continued payment of Employee's then current salary
for a period of twelve (12) months after termination by the Company.
5. TERMINATION BY COMPANY.
(a) TERMINATION FOR DEATH, TOTAL DISABILITY OR CAUSE: In addition, the
Company may terminate the Employee's employment hereunder immediately in the
event of the Employee's death or upon written notice to the Employee in the
event of "Total Disability" or for "Cause" as provided herein.
(i) "Total Disability" means the Employee's inability to perform
Employee's usual and customary duties for the Company as a result of
a medically determinable physical or mental impairment in the written
opinion of a physician selected by the Company, which opinion shall
be conclusive as of its date, absent fraud or manifest error. If the
Employee is asserted to be totally disabled by the Company, the
Employee shall cooperate fully with any physician examining Employee
pursuant to this subsection.
(ii) "Just Cause" or "Cause" shall include (1) any pattern of the
Employee's absences without satisfactory explanations of the reason
therefor, (2) gross malfeasance or gross misconduct of the Employee,
(3) The Employee's conviction of a felony; or (4) action by the
Employee of a nature that disparage or otherwise harm the Company in
its business or public relations.
(b) TERMINATION UPON SALE OR TERMINATION OF COMPANY'S BUSINESS: Company
may terminate Employee's employment upon the occurrence of any of the following
events:
(i) SALE OF COMPANY'S ASSETS. The sale of substantially all of Company's
assets to a single purchaser or group of associated purchasers;
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(ii) SALE OF COMPANY'S SHARES. Any material change of control which
results in Xxx Xxxxxxx no longer holding the position of Chief
Executive Officer.
(iii) TERMINATION OF COMPANY'S BUSINESS. Company's bona fide decision to
terminate its business and liquidate its assets;
(iv) MERGER OR CONSOLIDATION. The merger or consolidation of Company in a
transaction in which Company's shareholders receive less than fifty-
one (51%) percent of the new or outstanding voting shares of the new
or continuing corporation.
6. CONSOLIDATION, MERGER, OR SALE OF ASSETS.
Nothing in this Agreement shall preclude the Company from consolidating or
merging into or with, or transferring all or substantially all of its assets to,
another corporation that assumes this Agreement and all undertakings and
responsibilities of the Company hereunder. Under such a consolidation, merger,
or transfer of assets and assumption, the term "the Company" as used herein
shall mean such other corporation and this Agreement shall continue in full
force and effect.
7. MISCELLANEOUS.
(a) BINDING NATURE OF AGREEMENT: This Agreement shall inure to the
benefit of and be binding upon the parties, their heirs, legal representatives,
successors and assigns.
(b) NO ASSIGNMENT: The parties agree that the nature of the Employee's
services are personal and that the Employee may not assign any of Employee's
rights and duties hereunder.
(c) NOTICES: All notices required under this Agreement shall be
sufficient if made by certified or registered mail, return receipt requested,
delivered to the address of the Employee set forth above, as changed by written
notice to the Company, and to the Company at its then principal office.
(d) INTEGRATION, AMENDMENTS AND WAIVERS: This Agreement, together with
the two LMT Stock Option Agreements between the Company and Employee, represents
the exclusive statement of the entire Agreement between the parties concerning
the subject matter hereof, and supersedes and revokes any and all previous
agreements between the parties regarding any work, employment, compensation,
option, bonus, commissions, shares or other matters relating to Employee's
relationship to the Company as Employee, shareholder, option-holder, contractor
or consultant. This Agreement may not be amended, modified or revoked in whole
or in part except by written agreement of every party having rights hereunder.
This Agreement amends and supersedes all prior agreements between the parties
with the exception of the two LMT Stock Option Agreements between the Company
and Employee. Any waiver of any provision of this Agreement must be in writing,
signed by the party to be charged therewith, and a waiver on any occasion shall
not be construed as a bar to or waiver of
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any such right or remedy on any future occasion unless the waiver specifically
provides otherwise.
(e) CONSTRUCTION: The headings and subheadings of this Agreement have
been inserted for convenience only and are to be ignored in any construction of
the provisions hereof. The use of the singular shall be deemed to include the
plural and vice versa, and the use of the masculine and neuter gender shall be
deemed to include the feminine, masculine, and neuter gender unless the context
otherwise requires. No conclusion may be drawn from any difference between this
Agreement as finally signed and any prior Agreement or draft of all or any part
of any prior Agreement.
(f) APPLICABLE LAW: This Agreement shall be construed and enforced
pursuant to the laws of the State of Minnesota.
(g) SEVERABILITY: If any material provision of this Agreement is found to
be illegal or unenforceable by any Court in Law or Equity, such provision shall
not invalidate or make inapplicable other provisions of this Agreement.
(h) TERMINATION OF OPTIONS: The Company will not terminate options
granted Employee hereunder unless Employee shall be terminated from Company's
employ for cause, as defined herein.
IN WITNESS WHEREOF, the Employee has signed and sealed this Agreement and
the COMPANY has caused this Agreement to be executed the day and year first
written above.
LASERMASTER CORPORATION EMPLOYEE
By: /s/ /s/
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Xxx Xxxxxxx, Chief Executive Officer Xxxxxxx X. Xxxxx
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