Exhibit 10.38
EMPLOYMENT AGREEMENT
It is hereby agreed by and between Sparta Foods, Inc. ("Sparta") and
Xxxxxxx X. Xxxxxx ("Xxxxxx") as follows:
WHEREAS, Xxxxxx wishes to be employed with Sparta and Sparta wishes to
employ Xxxxxx as Vice President of Sales as set forth in this Agreement.
WHEREAS, Xxxxxx acknowledges that he will have access to confidential and
trade secret information of Sparta, which, if disclosed or used for the benefit
of any other person or entity, would cause harm to the business and/or
competitive position of Sparta.
WHEREAS, Xxxxxx acknowledges his obligation during his employment with
Sparta, and at all times thereafter, not to use or disclose confidential or
trade secret information of Sparta for the benefit of any other person or
entity;
WHEREAS, the parties wish to set forth the terms of their agreement in
writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants contained herein, and for other good and valuable consideration
the receipt and sufficiency of which is specifically acknowledged by the
parties, Sparta and Xxxxxx agree as follows:
1. Employment. Sparta hereby employs Xxxxxx and Xxxxxx hereby accepts
employment upon the terms and conditions set forth in this Agreement.
2. Term. The term of this Agreement shall commence on October 20, 1997 and
shall continue until terminated by either Xxxxxx or Sparta in accordance with
Paragraph 9 of this Agreement.
3. Duties. Xxxxxx shall serve as Sparta's Vice President of Sales. Xxxxxx
shall devote his entire time, attention, energy and best efforts to the business
of Sparta during the term of this Agreement. Xxxxxx shall discharge all duties
and responsibilities as determined in the discretion of President and CEO and/or
the Board of Directors of Sparta.
4. Annual Salary. Sparta shall pay to Xxxxxx a salary on an annualized
basis of $85,000, which shall be increased to $90,000 on an annualized basis
after ninety (90) days of employment should Sparta be satisfied with Xxxxxx'x
performance. Salary shall be paid on a bi-weekly basis, less appropriate payroll
deductions. Further increases, if any, are at the sole discretion of the Board
of Directors.
5. Bonus. Sparta shall pay Xxxxxx a bonus for the fiscal year ending
September 30, 1998 in the amount of $21, 250, less appropriate payroll
deductions, if Xxxxxx is an employee in good standing as of September 30, 1998.
Additional amounts or future bonuses, if any, are at the sole discretion of the
Board of Directors.
6. Benefits. Sparta shall provide to Xxxxxx all benefits in the same
amounts and upon the same conditions as are provided for other employees of
Sparta at his level in accordance with applicable plan documents.
7. Vacation. Xxxxxx shall be entitled to four weeks during the first year
of his employment and for any subsequent years in which he is employed with
Sparta. Unused vacation may not be carried over into the next year.
8. Automobile. Xxxxxx shall be eligible for a company-leased vehicle on the
same terms as are available to other employees.
9. Termination or Resignation. Either party may terminate the employment of
Xxxxxx for any reason or no reason, with or without cause, upon 90 days' written
notice to the other party. The parties agree that Xxxxxx may continue to work
during the 90-day notice period or may receive, in lieu thereof, his regular
salary through the 90-day period. Such decision shall be in Sparta's sole
discretion. If either party terminates the employment of Xxxxxx as set forth in
this Xxxxxxxxx 0, Xxxxxx shall be entitled to his regular salary through the
last date of the notice period together with any accrued and unused vacation for
the year in which he is terminated or resigns, and any severance to which he is
entitled in accordance with Paragraph 10 of this Agreement. Xxxxxx shall not be
entitled to any further payments of any kind, except as may be due under any
pension, profit sharing or benefit plan in which Xxxxxx is a participant.
10. Severance. Sparta shall, unless Xxxxxx is terminated for cause, for a
period of one year after Xxxxxx'x termination or resignation under Paragraph 9,
pay Xxxxxx xxxxxxxxx at the rate of his last annual salary (excluding any
bonuses or other payments), less appropriate payroll deductions, to be paid
according to the bi-weekly payroll schedule. If Sparta is terminated for cause,
he shall not be entitled to any severance payments and shall only be entitled to
his regular salary through the last date of the notice period as set forth in
Paragraph 9, together with any accrued and unused vacation for the year in which
he is terminated or resigns. Xxxxxx shall not be entitled to any further
payments of any kind, except as may be due under any pension, profit sharing or
benefit plan in which Xxxxxx is a participant.
Cause shall be defined as conduct detrimental to Sparta's business
reputation or good will; misrepresentation or dishonesty in any dealing between
Xxxxxx and Sparta or between Xxxxxx and Sparta's customers or prospective
customers; abuse of alcohol or use of controlled substances while on the job;
refusal to comply with Sparta's directives, rules, regulations or policies; or
the violation of any term of this Agreement.
11. Confidentiality. Xxxxxx acknowledges and agrees that he will not,
during his employment or at any time thereafter, directly or indirectly, use or
disclose to any other entity or person, any confidential information of Sparta,
without the prior written approval of Sparta's Board of Directors. For purposes
of this Agreement, the term "confidential information" shall include any
information of Sparta, whether in print, or on a computer disk, or tape or
otherwise, including a formula, pattern, compilation, program, device, method,
technique, or process which (a) derives independent economic value, actual or
potential, from not being generally known to the public or to other persons who
can obtain economic value from its disclosure or use; and (b) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
Xxxxxx acknowledges that such confidential information includes, but is not
limited to, customer lists and information, information regarding active and
inactive accounts, methods of operation, financial information, and marketing or
strategic plans or information.
12. Noncompetition. In consideration of his employment and the covenants
herein, and for other good and valuable consideration the receipt and
sufficiency of which is specifically acknowledged by Xxxxxx, Xxxxxx acknowledges
and agrees that, during the period of his employment and for a period of one
year after his termination or resignation from employment at any time, for any
reason or no reason, with or without cause, and whether such termination or
resignation is voluntary or involuntary, he shall not, on behalf of himself or
for any other person or entity:
a. Directly or indirectly, as an employee, proprietor, agent, stockholder,
partner, officer, director or otherwise, participate or engage in, manage,
work for, broker for, operate, control, render advice or assistance to or
be connected in any way with any other person or entity engaged in the
business of the manufacture or distribution of tortillas and/or
tortilla-related products;
b. Directly or indirectly, contact or solicit any actual, potential or past
customer of Sparta for the purpose of selling tortilla's and/or
tortilla-related products;
c. For any reason influence or solicit, or attempt to influence or solicit,
either directly or indirectly, any employee of Sparta to terminate his or
her employment with Sparta or to work for any person or entity other than
Sparta.
13. Return of Property. Xxxxxx, immediately upon his resignation or
termination from employment, whether such termination or resignation is
voluntary or involuntary, shall return to Sparta all documents or other items,
whether in print, on computer disk, tape or otherwise, and all copies thereof,
within his possession or control, belonging to Sparta, or in any manner relating
to the business of, or the services provided by Sparta, or the duties and
services performed by Xxxxxx on behalf of Sparta, including but not limited to,
any confidential or trade secret information of Sparta.
14. Remedy Upon Violation. In the event of a violation or violations of the
terms of Paragraphs 11, 12 or 13 of this Agreement by Xxxxxx, Xxxxxx
acknowledges and agrees that Sparta shall be entitled, in addition to any other
remedy it may have at law or equity, to an injunction with the posting of a
minimal bond or other security, enjoining or restraining Xxxxxx from any
violation or violations of this Agreement, and Xxxxxx hereby consents to the
issuance of such injunction upon an appropriate showing under applicable law. If
any of the rights or restrictions contained in this Agreement shall be deemed by
a Court of competent jurisdiction to be unenforceable by reason of the extent,
duration or geographic scope, or other provision of this Agreement, the parties
contemplate that the Court shall modify such extent, duration, geographic scope
or other provision of this Agreement and enforce this Agreement in its modified
form for all purposes in the manner contemplated by this Agreement.
15. Other Agreements. Xxxxxx, by his signature to this Agreement, confirms
and warrants that he does not have any noncompetition, confidentiality or other
agreements with or obligations to any other person or entity which would prevent
or interfere with his employment or duties and responsibilities with Sparta.
16. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of Sparta.
17. Entire Agreement. This Agreement states the entire agreement of the
parties with respect to the subject matter hereof and merges all prior
negotiations, agreements, and understandings, if any. No modification, release,
discharge, or waiver, of any provision of this Agreement shall be of any force
or effect unless made in writing and signed by the parties hereto, and
specifically identified as a modification, release, or discharge, of this
Agreement. If any term, clause, or provision, of this Agreement shall for any
reason be adjudged invalid, unenforceable, or void, the same shall not impair or
invalidate any of the other provisions of the Agreement, all of which shall be
performed in accordance with their respective terms. This Agreement contains the
entire agreement of the parties. It may not be changed orally but only by an
agreement in writing signed by the parties against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
18. Governing Law. This Agreement shall be governed, construed and
interpreted in accordance with the laws of the State of Minnesota.
Dated: __________, 1997 _____________________________
Xxxxxxx X. Xxxxxx
SPARTA FOODS, INC.
Dated: __________, 1997 By __________________________
Its _________________________
