Exhibit 10.5
EMPLOYMENT AGREEMENT
BY AND BETWEEN
ERLAN SAGADIEV
AND
DEVELOPED TECHNOLOGY RESOURCE, INC.
THIS EMPLOYMENT AGREEMENT, effective September 30, 1996, is made by and between
Erlan Sagadiev ("Executive") and Developed Technology Resource, Inc. ("DTR"), a
Minnesota corporation.
WHEREAS, DTR desires the services of Executive to assist DTR in its operas
provided herein, and Executive has agreed to provide such services;
NOW, THEREFORE, DTR and Executive, in consideration of the mutual promises and
covenants contained herein, agree as follows:
1.EMPLOYMENT. DTR agrees to employ Executive as its General Manager of its Food
Master subsidiary. Executive hereby accepts such employment.
2.EXCLUSIVITY OF SERVICES. Executive will devote his best efforts to the
performance of his duties hereunder as a full time employee of DTR. Executive
will not, without the written consent of the Board of Directors of DTR, engage
in any activity which conflicts or interferes with the performance of his duties
hereunder. Executive warrants that there exist no undisclosed written or oral
arrangements preventing his exclusive service to DTR, and that he has not made
any undisclosed commitment or performed any undisclosed act, and will not make
any commitment or perform any act, in conflict with the exclusive nature of his
duties to DTR.
3. TERM. This Employment Agreement shall have a term of five (5) years,
beginning on September 30, 1996 and expiring on September 29, 2001, subject to
earlier termination under Section 8 hereof.
4.COMPENSATION. In consideration of Executive's acceptance of continued
employment and performance of duties under this Employment Agreement, including,
but not limited to the provisions of Sections 5, 6 and 7, DTR shall pay to
Executive the following Compensation:
(a)Salary. Executive shall be paid a salary at a gross annual rate of Sixty
Thousand Dollars ($60,000.00). The Board of Directors of DTR may, in its
discretion, increase Executive's salary. Salary payments hereunder shall made in
the same manner and number as are the salary payments of other senior executives
of DTR and shall be subject to required payroll tax withholding and other
deductions authorized by Executive.
(b)Bonuses. The Board of Directors of DTR may grant Executive one or more
bonuses in its discretion.
(c)Benefits. Executive shall, for each fiscal year this Employment Agreement
remains effective, be entitled to paid vacations, health plans, pension plans,
stock purchase plans, profit sharing plan, automobile allowance, and any other
benefit plans, on the same terms as such benefits are available generally to
other senior executives of DTR.
(d)Expense Reimbursement. DTR will pay or reimburse Executive for all reasonable
and necessary out-of-pocket expenses incurred by him in the performance of his
duties under this Employment Agreement, subject to presentation of appropriate
vouchers in accordance with DTR' normal policies for expense verification.
(e)Grant of Option. As additional consideration for the covenants in paragraphs
5, 6 and 7, DTR agrees to grant Executive, effective as of the date hereof, an
incentive stock option to purchase 250,000 shares of Common Stock, inaccordance
with the terms of the grant letter attached.
COVENANT NOT TO COMPETE. In partial consideration of the Compensation paid under
this Employment Agreement, Executive agrees that during the term of this
Employment Agreement and for a period of one (l) year following the termination
of his employment, whether voluntary or involuntary, he shall not, either
personally, or through an employer, firm, agent, servant, employee, partner,
shareholder, representative, affiliate, or any other entity:
(a)solicit, do business with, or deliver products or services which compete with
the business, products or services of DTR to any person or entity who was a
client or customer of DTR or was in any way associated with DTR as of the date
of Executive's termination or at any time during the twelve (12) months
immediately preceding such termination, without the prior written consent of
DTR,
(b)employ or offer to employ any individual employed by DTR or in any way
associated with DTR within the four (4) months preceding the termination of
Executive's employment; or request, advise or entice any such individual to
leave the employment of DTR or disassociate from DTR, without the prior written
consent of DTR,
provided that any involuntary termination must be in compliance with this
Employment Agreement, including the provisions of Section 8(b). Executive
further agrees that in the event he breaches any of the covenants contained in
this Section 5, irreparable injury will result to DTR, that DTR's remedy at law
will be inadequate, and that DTR will be entitled to an injunction to restrain
the continuing breach of this Employment Agreement by Executive, his partners,
agents, servants, employees, or representatives, or any other persons or
entities acting for or with him. DTR shall, without limitation, be entitled to
damages, reasonable attorneys fees, and all other costs and expenses incurred in
connection with the enforcement of this Section 5, in addition to any other
rights or remedies which DTR may have at law or in equity. DTR may waive the
application of this section for good cause.
6. NONDISCLOSURE OF INFORMATION.
(a)Executive agrees that any information related to the business of DTR, or any
of its clients, customers or associated entities, and acquired by Executive
during his employment by DTR shall be regarded as confidential and solely for
the benefit of DTR. Executive shall not, except as necessary in the ordinary
course of conducting business for DTR, use such information himself or disclose
such information to any other person, directly or indirectly, either during the
term of this Employment Agreement or at any time thereafter, without the prior
written consent of DTR.
(b)Executive shall not remove any records or documents from the premises of DTR,
or any of its clients, customers or associated entities, in either original,
duplicate, or copied form, except as necessary in the ordinary course of
conducting business for DTR. Executive shall immediately deliver to DTR, upon
termination of employment with DTR, or at any other time upon DTR's request, any
such records or documents in Executive's possession or control.
7. INVENTIONS.
(a)"Inventions," as used in this Section 7, means any discoveries, improvements
and ideas (whether or not they are in writing or reduced to practice) or works
of authorship (whether or not they can be patented or copyrighted) that
Executive makes, authors, or conceives (either alone or with others) and that:
(i)concern directly DTR's business or DTR's present or demonstrably anticipated
future research or development;
(ii)result from any work Executive performs for DTR;
(iii)use DTR's equipment, supplies, facilities, or trade secret information; or
(iv)Executive develops during the time Executive is performing employment duties
for DTR;
(b)Executive agrees that all Inventions made by Executive during or within six
months after the term of this Agreement will be DTR's sole and exclusive
property. Executive will, with respect to any Invention:
(i)keep current, accurate, and complete records, which will belong to
DTR;
(ii)promptly and fully disclose the existence and describe the nature of the
Invention to DTR in writing (and without request);
(iii)assign (and Executive does hereby assign) to DTR all of his rights to the
Invention, any applications he makes for patents or copyrights in any country,
and any patents or copyrights granted to him in any country; and
(iv)acknowledge and deliver promptly to DTR any written instruments and perform
any other acts necessary in DTR's opinion to preserve property rights in the
Invention against forfeiture, abandonment or loss and to obtain and maintain
letters patent and/or copyrights on the Invention and to vest the entire right
and title to the Invention in DTR.
The requirements of this subsection 7(b) do not apply to an Invention for which
no equipment, supplies, facility or trade secret information of DTR was used and
which was developed entirely on Executive's own time, and (1) which does not
relate directly to DTR's business or to DTR's actual or demonstrably anticipated
research or development, or (2) which does not result from any work Executive
performed for DTR. Except as previously disclosed to DTR in writing, Executive
does not have, and will not assert, any claims to or rights under any Inventions
as having been made, conceived, authored or acquired by Executive prior to his
employment by DTR. With respect to any obligations performed by Executive under
this subsection 7(b) following termination of employment, DTR will pay Executive
reasonable hourly compensation (consistent with the last Base Salary) and will
pay or reimburse all reasonable out-of-pocket expenses.
8.TERMINATION.
(a)Executive's employment shall be terminated under any of the following
circumstances:
(i)Immediately, if Executive has breached this Employment Agreement in any
material respect, and such breach is not cured by Executive, or is not capable
of being cured by Executive, within 30 days after written notice of such breach
is delivered to Executive;
(ii)Immediately, in the event of (1) Executive's conviction of a felony or crime
involving moral turpitude or immoral conduct that is reasonably likely to affect
adversely the business of DTR, or the goodwill associated therewith, or (2) the
bankruptcy of DTR;
(iii)Voluntary termination by Executive;
(iv)Upon the death or total disability of Executive.
(b)In the event that Executive's employment is voluntarily terminated pursuant
to Section 8(a)(iii) above, or is involuntarily terminated pursuant to
subsections (i)-(ii) of Section 8(a) above, Executive shall not be entitled to
any Compensation following such termination.
(c)If Executive's employment is terminated pursuant to Section 8(a)(iv),
Executive and/or his surviving spouse and dependents, if any, otherwise his
estate, shall receive the salary in the amount and manner set forth in Section
4(a) hereof and the benefits set forth in Section 4(c) (to the extent allowed by
law) for a three month period.
(d)In the event that Executive's employment is involuntarily terminated for any
reason other than those set forth in subsections (i)-(iv) of Section 8(a) above,
Executive shall receive the salary in the amount and manner set forth in Section
4(a) hereof and the benefits set forth in Section 4(c) hereof (to the extent
allowed by law) through and until September 30, 1997, or for three months,
whichever period is longer. DTR may satisfy this obligation by continuing to
make the regular payroll payments for the term rather than a lump sum payment.
(e)Nothing in this Section 8 shall be construed to affect Executive's
entitlement to be paid for vacation, salary or benefits earned and unpaid at the
time his employment is terminated.
(f)Notwithstanding any termination of this Employment Agreement by any party
and for any reason, in consideration of his employment hereunder to the date of
such termination, Executive shall remain bound by the provisions of this
Employment Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of Executive's employment,
except as specifically provided otherwise in this Agreement.
9.CONSENT TO VENUE AND JURISDICTION. Executive consents to venue
and jurisdiction in the District Court of Hennepin County, State of Minnesota,
and in the United States District Court for the District of Minnesota, and to
service of process under Minnesota law, in any action commenced to enforce this
Agreement.
10.ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the
parties, and may not be amended or modified except by mutual written agreement
of DTR and Executive.
11.SUCCESSORS AND ASSIGNS. Subject to the provisions herein, the benefits and
obligations of this Agreement shall be binding upon and inure to the successors
and assigns of DTR.
12.GOVERNING LAW. This Employment Agreement shall be construed under and
governed by the laws of the State of Minnesota.
13.NOTICE. Any notice or other communications required or permitted to be given
to the parties hereto shall be deemed to have been given on the third (3rd) day
following deposit in the United States mail, postage prepaid, and addressed to
the appropriate party at the address of such party as may be, from time to time,
provided in writing to the other.
14. SEVERABILITY. If any provisions of this Employment Agreement shall, for any
reason, be adjudged to be void, invalid or unenforceable by a court of law, the
remainder of this Employment Agreement shall nonetheless continue and remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement.
Dated: 2/3/97
Dated: 2/3/97
DEVELOPED TECHNOLOGY RESOURCE,
INC.
By
Its
"Executive"
