EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of October, 1996,
by and between NAVARRE CORPORATION, a Minnesota corporation (the
"Company"), and XXXXXXX X. XXXXXX, a resident of the State of Minnesota
("Executive").
W I T N E S S E T H:
WHEREAS, Executive has a unique knowledge of the Company's business, and
has special expertise in the management and future planning of its affairs, and
has been a key Executive of the Company, helping to develop the image of the
business; and
WHEREAS, the Company believes that Executive's continued involvement in the
management and affairs of the business are essential to its management and
planning in the future; and
WHEREAS, a previous employment agreement expired as of September 30, 1996
and it is the desire of the parties to extend the terms thereof.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and obligations of this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
I. Employment. Subject to all of the terms and conditions of this
Agreement, the Company hereby employs Executive, and Executive hereby
accepts employment with the Company, as its Executive Vice President,
Chief Financial Officer and Treasurer.
I. Duties.
A. Executive Vice President, Chief Financial Officer
and Treasurer. The services of Executive are exclusive to the
Company. Executive will devote substantially all of his business
hours to, and make the best use of his energy, knowledge and
training in, performing his duties as Executive Vice President, Chief
Financial Officer and Treasurer of the Company within the general
guidelines established by the Board of Directors of the Company as
the same may, from time to time, be modified by the Company's
Board of Directors. Executive will report to the Board of Directors
of the
Company and have all the duties normally subscribed to the Chief
Financial Officer. Notwithstanding anything in this Agreement to
the contrary, the duties of Executive under this Agreement do not (i)
require Executive to relocate his principal office or residence from
the Minneapolis/St. Xxxx, Minnesota metropolitan area without the
prior written consent of Executive, or (ii) prevent Executive from
owning, directly or indirectly, securities of, or otherwise
participating in the ownership of, any publicly-owned business,
trade, industry or venture. Executive will perform his duties in a
competent and professional manner, consistent with that expected of
a chief financial officer of the Company.
A. Director. During the term of this Agreement,
Executive shall also serve as a director of the Company.
A. Consultant. If Executive should make an election as
described in Section 5(d) hereof, the Company agrees to retain
Executive and Executive agrees to serve in a position of consultant
and advisor to the Company (with or without retention of his
position as Executive Vice President, Chief Financial Officer and
Treasurer or as a director, at the election of the Company), for a
period commencing upon such election and ending on October 31,
2001. During the period of consulting and advising, Executive shall
render consulting and advisory services in connection with business
activities similar to those carried on by the Company during the
period of his employment by the Company. Executive shall perform
such consulting and advisory services and attend meetings, as and
when reasonably requested by the Company in advance, provided
that Executive shall not be required to devote thereto in the
aggregate more than thirty (30) days per year. Executive shall have
discretion in choosing the times and places of performance of his
services to the Company compatible with his other activities.
Compensation to Executive under this Section 2 (c) shall continue to
be due from the Company as if Executive continued to be employed
by the Company pursuant to Section 2 (a) and (b) hereof.
I. Term. Subject only to earlier termination in accordance with Section
5 of this Agreement, Executive's term of employment shall commence on
the date hereof and continue for a period of five (5) years (the "Initial
Term"). Upon the expiration of the Initial Term, this Agreement shall be
automatically renewed for successive additional one (1)-year terms unless
this Agreement is terminated in writing by either party hereto at least ninety
(90) days prior to the expiration of the Initial Term or any subsequent
renewal term. The Initial Term and any subsequent renewal terms shall be
referred to collectively herein as the "Employment Period."
II. Compensation. As compensation for all of Executive's services
under this Agreement, the Company agrees to pay Executive during the
Employment Period and on retirement, and Executive agrees to accept the
following:
A. Base Salary. A base salary of $200,000 per annum
(the "Base Salary"), payable in accordance with the Company's
standard payroll practices. On each anniversary of this Agreement,
the Base Salary shall be adjusted by the Chief Executive Officer and
the Company's Board of Directors based upon the level of
performance by Executive, provided that in no event shall the Base
Salary for any fiscal year hereunder be less than the sum provided
above for the first full fiscal year. If conditions require and
Executive agrees, temporary cuts in pay can be effected.
A. Performance Bonus. As additional compensation for
Executive, Executive shall be eligible to receive a bonus determined
by the Board of Directors with a maximum bonus (the "Bonus")
equal to 60% of the Base Salary of Executive. If no Bonus is
otherwise declared by the Board of Directors, Executive will be
entitled to receive a bonus equal to 60% of Executive's Base Salary.
Executive's Bonus shall be paid semi-annually not later than 45 days
after March 31st and September 30th of each year.
A. Benefits.
1. Expenses. The Company shall reimburse
Executive for any and all ordinary, necessary and reasonable
business expenses that Executive incurs in connection with
the performance of his duties under this Agreement, including
entertainment, telephone, travel and miscellaneous expenses,
provided that Executive provides the Company with
documentation for such expenses in a form sufficient to
sustain the Company's deduction for such expenses under
Section 162 of the Internal Revenue Code of 1986, as
amended. These expenses include all dues and assessments to
Executive's social, athletic, golf or country club.
1. Medical and Disability Insurance.
Subject to Executive taking and passing the physical
examination required by the Company's insurance carrier, the
Company shall provide Executive with full medical and
disability insurance coverage provided to other officers of the
Company.
1. Life Insurance. Subject to the same
physical examination and cost provisions, the Company shall
provide Executive with a $250,000 term life insurance policy
insuring Executive's life during the term of Executive's
employment with the Company and shall pay all premiums
thereon. Such policy shall be owned by the Executive and
shall be payable to such beneficiary or beneficiaries as
Executive directs by written instrument delivered to the
Company or the insurer under the life insurance policy.
1. Vacation. Executive shall be entitled to
a paid vacation period of four (4) weeks each year, which may
be taken at any time subject to the Company's business needs.
1. Automobile Expenses. The Company
agrees to lease an automobile selected by Executive for use by
the Executive (the "Automobile"), the monthly lease cost of
which shall not exceed $750 (the "Lease Amount").
Alternatively, at Executive's request, the Company will pay
$750 to Executive during the Employment Period for an
automobile allowance. In addition, the Company will make
pay or reimburse the Executive for all reasonable costs of
licensing, sales taxes, property taxes, maintenance, repair, oil,
gasoline and insurance for such Automobile. Executive
agrees that he shall operate the Automobile provided by the
Company with "reasonable care". In addition, Executive
agrees that his use of the Automobile provided hereunder is
subject to the Company's business use policy, as such policy
may from time to time be determined by the Board of
Directors of the Company, and that Executive shall be
responsible for any taxes with respect to his personal use of
the Automobile provided hereunder. The Company agrees
that it shall provide Executive with a comparable replacement
vehicle every three (3) years after the date hereof. The
Executive shall have the right at any time to purchase the
Automobile (or any substitute vehicle) by tendering to the
Company a cash payment in an amount equal to the greater of
(a) the undepreciated book value of such Automobile as
contained in the books and records of the Company for
federal income tax purposes and (b) One and 00/100 Dollars
($1.00).
1. Benefit Changes. No reference in this
Agreement to any policy or any employee benefit plan
established or maintained by the Company shall preclude the
Company from changing any such policies or amending or
terminating any such benefit plans if a substantially similar
benefit is provided to Executive by the Company.
1. Other Plans. Nothing contained herein
is intended to or shall be deemed to be granted to Executive
in lieu of any rights or privileges which Executive may be
entitled to as an employee of the Company under any other
policies or benefit plans that are currently in effect or that
may hereafter be adopted. Executive shall be entitled to
participate in any other employee benefit plans of the
Company generally applicable to officers of the Company, its
divisions or subsidiaries, occupying similar positions as
Executive, including, but not limited to, any profit sharing,
pension, stock option, stock appreciation rights, stock
ownership, health, medical, dental, vacation, insurance or
other employee benefit plans.
I. Termination. This Agreement may not be terminated prior to the
end of the Employment Period except as follows:
A. By the Company for Company Cause. The
Company may terminate this Agreement for Company Cause upon
the Executive's material breach of this Agreement. Except as to
subparagraph (iii) below, the Company shall give the Executive
thirty (30) days' advance written notice of such termination, which
notice shall be via registered mail, return receipt requested, and
which shall describe in detail the acts or omissions which the
Company believes constitute such breach. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated
for Company Cause unless and until there shall have been delivered
to Executive a copy of a resolution duly adopted by the affirmative
vote of not less than seventy-five (75%) of the entire membership of
the Board of Directors (certified by the Secretary of the Board of
Directors) at a meeting of the Board of Directors called and held for
the purpose (after reasonable notice to Executive and an opportunity
for Executive, together with Executive's counsel, to appear before
the Board), finding that in the good faith opinion of the Board of
Directors, Executive was guilty of conduct described in this Section
5(a), and specifying the particulars thereof in detail. The Company
shall not be allowed to terminate this Agreement pursuant to this
Section 5(a) if Executive is able to cure such breach within thirty
(30) days following delivery of such notice. However, in no event
shall a breach of the provisions of Sections 5(a)(iii) or 7 be subject to
cure. Acts or omissions which constitute a material breach of this
Agreement constituting "Company Cause" shall be limited strictly to
the following:
1. Any material breach by the Executive of
his obligations under this Agreement;
1. Gross misconduct of the Executive
which is manifestly injurious to Company, or habitual failure
or inability of the Executive to perform his duties under this
Agreement; and
1. Any fraud, theft or embezzlement by the
Executive of the Company's assets, or any other unlawful or
criminal act which is punishable as a felony.
A. Death. Subject to the provisions of Section 6, this
Agreement shall terminate upon Executive's death.
A. Disability. Subject to the provisions of Section 6, this
Agreement shall terminate upon Executive's Disability. As used
herein, the term "Disability" shall have such meaning as set forth in
the Company's disability policy in effect at the date hereof and shall
include both permanent and temporary disability, short term and long
term disability, and total and partial disability. If there is no policy
in effect at the date of Executive's potential disability, Disability
shall mean Executive becoming substantially incapable of
performing his duties hereunder for a period of six (6) months or
more.
A. By Executive for Executive Cause. Executive shall have the
right, at his election, to terminate this Agreement or to change his
position to that of consultant and advisor as described in Section 2(c)
herein, upon thirty (30) days' written notice to the Company upon the
occurrence, without Executive's express written consent, of any one
or more of the following events, provided that Executive shall not
have the right to terminate this Agreement if the Company is able to
cure such event within thirty (30) days following delivery of such
notice:
1. The Company is in material breach of this Agreement;
1. Executive is required to report to or accept assignments
from persons other than the Chief Executive Officer and/or
the Board of Directors of the Company or he is removed
without his written consent as the Executive Vice President,
Chief Financial Officer and Treasurer of the Company and
such removal is not pursuant to Section 5(a) hereof;
1. The Chief Executive Officer appoints Executive as
Executive Vice President, Chief Financial Officer and
Treasurer, or if Executive should have a policy dispute with
the Chief Executive Officer;
2. The Shareholders should fail to elect Executive as a
director;
1. An adverse change in Executive's status or position as
an executive officer of the Company, including, without
limitation, any adverse change in Executive's status or
position as a result of a material diminution in Executive's
duties, responsibilities or authority as of the date of this
Agreement (or any status or position to which Executive may
be promoted after the date hereof) or the assignment to
Executive of any duties or responsibilities which, in
Executive's reasonable judgment, are inconsistent with
Executive's status or position, or any removal of Executive
from or any failure to reappoint or reelect Executive to such
positions (except in connection with the termination of
Executive's employment in accordance with Section 5(a)
hereof);
1. A reduction by the Company of Executive's Base
Salary as the same may be increased time to time, or a change
in the eligibility requirements or performance criteria for any
benefit other than salary, which adversely effects Executive;
1. Without replacement by a plan providing benefits to
Executive equal to or greater than those discontinued, the
failure by the Company to continue in effect, within its
maximum stated term, any employee benefit plan in which
Executive is participating immediately prior to the date of this
Agreement or the taking of any action by the Company that
would adversely effect Executive's participation or materially
reduce Executive's benefits under any such plan;
1. The taking of any action by the Company that would
materially adversely effect the physical conditions existing
immediately prior to this Agreement in or under which
Executive performs his employment duties;
1. The Company's requiring Executive to be based
anywhere other than the Minneapolis/St. Xxxx, Minnesota
metropolitan statistical area, except for required travel on the
Company's business to an extent substantially consistent with
the business travel obligations which Executive has typically
undertaken on behalf of the Company prior to the date of this
Agreement; or
1. Any purported termination by the Company of this
Agreement or the employment of Executive by Company
which is not expressly authorized by this Agreement or any
breach of this Agreement by the Company which is not
remedied by the Company within thirty (30) days after the
Company's receipt of notice thereof from Executive.
A. Retirement. At such time as Executive reaches the age of
60 and remains as an employee of the Company, Executive may
retire and, subject to the provisions of Section 6 below, this
Agreement shall terminate.
I. Payments Upon Termination.
A. Death. Upon Executive's death during the
Employment Period, the heirs or legal representatives of Executive
shall be entitled to receive as a lump sum payment payable within
sixty (60) calendar days of his death, 2.99 times the average of the
aggregate base and incentive compensation paid to Executive over
the preceding five years, provided, however, that in no event shall
the amount due and payable hereunder constitute a "Parachute
Payment" within the meaning of Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended.
A. Disability. In the event that this Agreement is terminated due
to Executive's Disability, Executive shall be paid (i) his Base Salary
for a period of one year following the date of such Disability or until
Executive begins receiving benefits under the Company's disability
benefits plan, whichever occurs first, (ii) all bonuses to which
Executive would have been entitled for the fiscal year in which such
Disability occurred, prorated to the date of Disability, (iii) his
accrued but unpaid vacation pay for the year in which such
Disability occurred, pro rated to the date of such Disability, and (iv)
any unpaid expense reimbursement.
A. Termination by Company for Company Cause or by
Executive Without Executive Cause. If Executive is terminated
pursuant to Section 5(a) hereof, or Executive terminates this
Agreement other than in accordance with Section 5(d) hereof, the
Company shall pay to Executive (i) his Base Salary through the date
written notice is properly mailed to Executive pursuant to Section
5(a) hereof, and (ii) all Bonus payments owing to Executive for the
fiscal year prior to the year such written notice is received by
Executive (to the extent that any such payments were unpaid on the
date of termination), and for the current year.
A. Termination Without Company Cause or by Executive for
Executive Cause. In addition to any other rights granted Executive
hereunder, if the Company should terminate this Agreement other
than in accordance with Section 5(a) hereof, or if Executive should
terminate this Agreement pursuant to Section 5(d) hereof, the
Company shall pay to Executive (i) his Base Salary through the end
of the term of this Agreement or two years, whichever is more, in
exchange for a properly executed non-compete agreement between
Executive and the Company, (ii) any payments owing to Executive
pursuant to Section 4(b) hereof for the fiscal year prior to the year of
termination (to the extent any such payments were unpaid on the
date of termination, as well as for the current year), (iii) a sum
equivalent to any accrued but unpaid vacation for the year in which
he is terminated, and (iv) any unpaid expense reimbursement.
Furthermore, for the remainder of the term of this Agreement, or one
year whichever is more, the Company shall maintain in full force and
effect for the continued benefit of Executive and his dependents all
(i) pension plans, (ii) medical and disability policies, (iii) stock
option plans, and (iv) life insurance plans in which Executive
participated immediately prior to his termination (or if such
participation is barred, shall arrange for individual policies of
insurance providing benefits substantially similar, on an after-tax
basis, to those which Executive otherwise would have been entitled
hereunder) for the remainder of the term of this Agreement.
A. Change of Control And Ownership. In the event that (i)
Executive's employment with the Company is terminated by the
Company other than in accordance with Sections 5(a), (b), or (c)
hereof during the Employment Period and (ii) such termination
occurs after a Change in Control (as defined hereinbelow), Company
shall pay Executive a cash bonus ("Severance Payment") in an
amount equal to Executive's Average Annual Compensation (as
defined hereinbelow), multiplied by a factor of 2.99, provided,
however, that in no event shall the amount due and payable
hereunder constitute a "Parachute Payment" within the meaning of
Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended. In the event that any portion of the Severance Payment
would be deemed a Parachute Payment, the amount of the Severance
Payment shall be reduced only to the extent necessary to eliminate
any such treatment or characterization.
For purposes of this Agreement, "Change in Control" shall mean (i)
the sale of all or substantially all of the assets of the Company, (ii)
the acquisition by any means of more than fifty percent (50%) of the
issued and outstanding voting stock of the Company by any entity,
person or group of persons acting in concert, (iii) the merger of the
Company with, or the consolidation of the Company into, another
corporation or entity, or (iv) the election to the Board of Directors of
the Company without the recommendation or approval of the
incumbent Board of Directors of the Company the lesser of (i) three
directors or (ii) directors constituting a majority of the number of
directors of the Company then in office.
For purposes of this Agreement, "Average Annual Compensation"
shall mean the average of all taxable compensation and fringe
benefits paid to or on behalf of Executive by Company, based on the
five (5) most recent calendar years. Amounts payable pursuant to
this Section 6(e) shall be in addition to, and not in lieu of, all other
compensation, rights and benefits accruing or afforded to Executive
pursuant to this Agreement.
A. Retirement. Upon Executive's retirement pursuant to
Section 5(e) above, Executive and his heirs or legal representatives
shall be entitled to receive the following: (i) average annual
compensation for a period of two (2) years in exchange for a
properly executed non-compete agreement between Executive and
the Company, (ii) any payments owing to Executive pursuant to
Section 4(b) hereof through the date of retirement (to the extent any
such payments were unpaid on the date of retirement, as well as for
the current year), (iii) a sum equivalent to any accrued but unpaid
vacation for the year in which he retires, and (iv) any unpaid expense
reimbursement. Furthermore, for a period of five (5) years after
retirement, the Company shall maintain in full force and effect for
the continued benefit of Executive and his dependents all (i) pension
plans, (ii) medical and disability policies, (iii) stock option plans and
(iv) life insurance plans in which Executive participated immediately
prior to his termination (or if such participation is barred, shall
arrange for individual policies of insurance providing benefits
substantially similar, on an after-tax basis, to those which Executive
otherwise would have been entitled hereunder) for the remainder of
the term of this Agreement.
I. Ownership of Properties; Confidentiality; Exclusivity;
Investments.
A. Ownership of Properties. The Company, as employer, shall
own, and Executive hereby transfers and assigns to the Company, all
rights in and to any material and/or ideas written, suggested or
submitted by Executive during the Employment Period and all other
results and proceeds of his services under this Agreement (the
"Properties"). Without limiting the generality of the foregoing, these
rights shall include all motion picture, television, radio, dramatic,
musical, publication and other rights in and to the Properties,
including the sole and exclusive right to photograph and record the
same with or without dialogue, music and other sounds
synchronously recorded, and to perform, exhibit, distribute,
reproduce, transmit, broadcast or otherwise communicate the same
and/or motion picture, dramatic or other versions or adaptations
thereof, theatrically, nontheatrically and/or by means of television,
radio, the legitimate stage and/or any other means now known or
hereafter devised and to manufacture, publish, or vend printed and/or
recorded versions or adaptations thereof, either publicly or privately
and for profit or otherwise. The Company and its licensees and
assigns shall have the right to adapt, change, revise, delete from, add
to and/or rearrange the Properties or any part thereof written or
submitted by Executive and to combine the same with other works to
any extent, and to change or substitute the title thereof and in this
connection Executive hereby waives any so-called "moral rights" of
authors. Executive agrees to execute and deliver to the Company
such releases, assignments or other instruments as the Company may
require from time to time to evidence its ownership of the results and
proceeds of Executive's services hereunder' provided, however, that
nothing in this Section 7(a) shall be deemed in any manner to restrict
or qualify Executive's ownership or right to exploit Executive's
personal memoirs.
The requirements of this Section 7(a) do not apply to Properties for
which no equipment, facility or confidential information of the
Company was used and which were developed entirely on
Executive's own time, and which (i) do not relate directly to the
Company's business or to the Company's actual research or
development, or (ii) do not result from any work Executive
performed for the Company. Except as previously disclosed to the
Company in writing, Executive does not have and will not assert any
claims to or rights under any Properties as having been made,
conceived, authored or acquired by Executive prior to his
employment by the Company.
A. Confidentiality. Executive acknowledges that his services
will, throughout the Employment Period, bring Executive in close
contact with many confidential affairs of the Company and its
affiliates, including information about costs, profits, financial data,
markets, trade secrets, sales, products, computer programs, key
personnel, pricing policies, customer lists, development projects,
operational methods, technical processes, plans for future
development, business affairs and methods and other information not
readily available to the public. Executive further acknowledges that
the businesses of the Company and its affiliates are international in
scope, that their products are marketed throughout the world, that the
Company and its affiliates compete in nearly all of their business
activities with other organizations which are or could be located in
nearly any part of the world and that the nature of Executive's
services, position and expertise are such that he is capable of
competing with the Company and its affiliates from nearly any
location in the world. In recognition of the foregoing Executive
covenants and agrees:
1. that Executive will keep secret all material confidential
matters of the Company and its affiliates which are not
otherwise in the public domain and will not disclose them to
anyone outside of the Company or its affiliates, either during
or after the Employment Period, except with the Company's
written consent and except for such disclosure as is necessary
in the performance of Executive's duties during the
Employment Period; and
1. that Executive will deliver promptly to the Company
on termination of his employment with the Company or at any
other time the Company may so request, at the Company's
expense, all confidential memoranda, notes, records, reports
and other documents (and all copies thereof) relating to the
Company's and its affiliates' business, which Executive
obtained while employed by, or otherwise serving or acting
on behalf of, the Company or which the Executive may then
possess or have under his control.
A. Exclusivity. Executive agrees that during his employment
with the Company, he will not alone, or in any capacity with another
entity or person, (i) engage in any commercial activity that competes
with the Company's business, as it is conducted during the
Employment Period, within any state of the United States, (ii) in any
way interfere or attempt to interfere with the Company's
relationships with any of its current or potential customers, or (iii)
attempt to employ any of the Company's then employees on behalf
of any other entities competing with the Company. Executive
further acknowledges that all services of Executive shall be
exclusive to the Company, and that Executive's performances and
services hereunder are of a special, unique, unusual, extraordinary
and intellectual character which gives them peculiar value, the loss
of which cannot be reasonably or adequately compensated in an
action at law for damages and that a breach by Executive of the
terms hereof (including without limitation this Section 7) will cause
the Company irreparable injury. Executive agrees that the Company
is entitled to injunctive and other equitable relief to prevent a breach
or threatened breach of this Agreement, which shall be in addition to
any other rights or remedies to which the Company may be entitled.
For purposes of this Section 7(c), the term "Company" shall include
the Company, its successors, assigns and affiliates.
A. Investments. Notwithstanding anything contained herein to
the contrary, during the Employment Period Executive may acquire
and/or retain, solely as an investment, and take customary actions to
maintain and preserve Executive's ownership of:
1. securities of any corporation which are
registered under Sections 12(b) or 12(g) of the Securities
Exchange Act of 1934 and which are publicly traded, so long
as Executive is not part of any control group of such
corporation; and
1. any securities of a partnership, trust, corporation,
limited liability company or other entity so long as (i)
Executive remains a passive investor in that entity and does
not become part of any control group thereof (except in a
passive capacity) and (ii) such entity is not, directly or
indirectly, in competition with the Company or its affiliates,
regardless of whether Executive is a passive investor or part
of any control group thereof.
I. Remedies. The parties hereto recognize and agree that, because the
material breach of this Agreement or any part hereof would result in
damages difficult to ascertain, upon any allegation of material breach of this
Agreement, either party hereto shall be entitled:
A. Proceedings. To institute proceedings in a court located in
the State of Minnesota to enjoin the breach, termination, or
threatened termination of this Agreement. Such injunctive remedy
shall be in addition to and not in lieu of any right to recover money
damages for any such breach.
A. Costs and Expenses. The successful party in any action
brought concerning the breach or termination of this Agreement shall
be entitled to recover all costs and expenses, including attorney's fees
incurred or associated with the enforcement of any covenant of this
Agreement.
A. Additional Costs. Additionally, if there shall be any breach
of this Agreement by the Company, and Executive shall institute any
action (or counterclaim) in connection therewith, Executive shall be
entitled, if successful in such action or if the Company sues and if
Executive is successful in that action, to recover as damages the
discounted value (at a rate of 6%) of all amounts unpaid under this
Agreement, or Executive may, at his election, recover as damages
each monthly payment of Base Salary and additional compensation
at such time as it becomes payable or would have become payable
under the terms of this Agreement, and the Company agrees not only
to pay such sums, but, in addition thereto, interest thereon at the
prime rate then in effect, until such payment is made. In any such
action, the fact that Executive did or did not seek or engage in any
other employment or in other activities shall not affect, reduce or
mitigate the amount of recovery allowable to Executive. Executive's
rights hereunder, upon his death, accrue to his legal representatives
or to his designated beneficiary.
I. Miscellaneous.
A. Successors and Assigns. This Agreement is binding on and
inures to the benefit of the Company's successors and assigns,
provided, however, that this Agreement may not be assigned by any
of the parties hereto without the prior written consent of each of the
parties hereto. This Agreement shall be binding upon and inure to
the benefit of any successor of the Company, and any such successor
shall absolutely and unconditionally assume all of the Company's
obligations hereunder. Upon the written request of Executive, the
Company shall seek to have any successor, by agreement in form
and substance satisfactory to Executive, assent to the fulfillment by
the Company of its obligations under this Agreement. Failure to
attain such assent at least thirty (30) business days prior to the time a
person or entity becomes a successor in interest to the Company
shall be considered Executive Cause for termination of this
Agreement in accordance with Section 5(d) hereof.
A. Offsets. In no event shall any amount payable to Executive
pursuant to this Agreement be reduced for purposes of offsetting,
either directly or indirectly, any indebtedness or liability of
Executive to Company.
A. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original
but all of which together shall constitute one and the same
instrument.
A. Construction. Wherever possible, each provision of this
Agreement will be interpreted so that it is valid under the applicable
law. If any provision of this Agreement is to any extent invalid
under the applicable law, that provision will still be effective to the
extent it remains valid. The remainder of this Agreement also will
continue to be valid, and the entire Agreement will continue to be
valid in other jurisdictions.
A. Waivers. No failure or delay by either the Company or
Executive in exercising any right or remedy under this Agreement
will waive any provision of this Agreement, nor will any single or
partial exercise by either the Company or Executive of any right or
remedy under this Agreement preclude either of them from
otherwise or further exercising these rights or remedies, or any other
rights or remedies granted by any law or any related document.
A. Captions. The headings in this Agreement are for
convenience of reference only and do not affect the interpretation of
this Agreement.
A. Modification/Entire Agreement. This Agreement may not
be altered, modified or amended except by an instrument in writing
signed by all of the parties hereto. No person, whether or not an
officer, agent, employee or representative of any party, has made or
has any authority to make for or on behalf of that party any
agreement, representation, warranty, statement, promise,
arrangement or understanding not expressly set forth in this
Agreement or in any other document executed by the parties
concurrently herewith ("Parol Agreements"). This Agreement and
all other documents executed by the parties concurrently herewith
constitute the entire agreement between the parties and supersede all
express or implied, prior or concurrent, Parol Agreements and prior
written agreements with respect to the subject matter hereof
including, but not limited to, that certain Employment Agreement,
dated September 1, 1993, and Amendment to Employment
Agreement, dated December 1, 1993. The parties acknowledge that
in entering into this Agreement, they have not relied and will not in
any way rely upon any Parol Agreements.
A. Governing Law. The laws of the State of Minnesota shall
govern the validity, construction and performance of this Agreement.
Any legal proceeding related to this Agreement shall be brought in
an appropriate Minnesota court, and each of the parties hereto hereby
consents to the exclusive jurisdiction of the courts of the State of
Minnesota for this purpose.
A. Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and sent by
registered first class mail, postage prepaid, and shall be deemed
received five (5) days after mailing to the addresses stated below:
If to the Company:
Navarre Corporation
0000 00xx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxx 00000
Attention: Chairman of the Board of Directors
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Winthrop & Weinstine, P.A.
0000 Xxxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
If to Executive:
Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
A. Survival. Notwithstanding the termination of this Agreement
or Executive's employment with the Company, the terms of this
Agreement concerning rights and remedies of the parties shall
survive such termination and shall govern in perpetuity all rights,
disputes, claims or causes of action arising out of or in any way
related to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NAVARRE CORPORATION
By:
___________________________________
Its:
____________________________
____________________________________
Xxxxxxx X. Xxxxxx
(Signature to Employment Agreement)
