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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of the 7th day of February, 2000, by
and between ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the
"Employee").
WHEREAS, Company desires to avail itself of Employee's skills, talents,
contacts, judgment and knowledge for the benefit of Company and accordingly has
offered to employ Employee pursuant to the terms and conditions set forth
hereinafter; and
WHEREAS, Employee desires duties and responsibilities commensurate with
Employee's education, experience and background, and salary, bonus, and other
benefits and perquisites at levels that reflect Employee's anticipated future
contributions to the Company;
NOW, THEREFORE, in consideration of the premises and the terms and
conditions hereinafter set forth, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions hereof, the Company
shall employ Employee and Employee agrees to be so employed in the capacity of
President for a term of one (1) year commencing on February 21, 2000 and
terminating February 20, 2001. This Agreement shall automatically renew, if not
previously terminated, for successive one-year terms thereafter unless the
Company shall have provided Employee with written notice of the Company's intent
not to renew by January 1, 2001 and by each January 1 thereafter.
2. Duties. Employee shall diligently and conscientiously devote
Employee's full and exclusive time and attention to the discharge of Employee's
duties as President of the Company. Such duties shall be the day-to-day
operation and management of the Company. Employee agrees to report directly to
▇▇▇▇ ▇▇▇▇▇▇ or such other senior officer of the Company or ▇▇▇▇▇▇▇▇▇.▇▇▇ Group,
Inc. as ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ may from time to time deem
appropriate.
3. Base Salary. Commencing on February 21, 2000 and continuing through
and including the last day of the initial term of this Agreement, the Company
shall pay to Employee for services rendered hereunder as base compensation the
sum of Two Hundred Thousand Dollars ($200,000) per annum, which shall be paid in
equal monthly or other convenient installments.
4. Bonus. On the first anniversary date of commencement of employment
and provided Employee is employed on such date, Employee shall be entitled to
receive a bonus payment of up to Fifty Thousand Dollars ($50,000). Such bonus
shall be discretionary and Employee's right to receive said amount or a portion
thereof, shall be determined by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in their
sole discretion, based upon the following criteria as applied to the Company's
business: (a) Site Redesign; (b) Baseline Industry Comparison, including but not
limited to ▇▇▇▇▇ ratings; (c) Customer Service Performance; and, (d) Management
and Leadership.
5. Moving/Living Expenses. Upon presentment of an itemized statement
of qualifying expenses, on such form as may be required by the Company, Company
agrees to reimburse employee for moving expenses incurred in connection with
Employee's relocation to the Minneapolis/St. ▇▇▇▇ Metropolitan area. Such
expense reimbursement shall not exceed Five Thousand Dollars ($5,000) in amount.
Company also agrees to pay Employee a monthly living expense
allowance equal to One Thousand Two Hundred Dollars ($1,200) to help defray
expenses occasioned by Employee's need to live
Exhibit 10.5-1
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in the Minneapolis area during the week to perform his duties hereunder. Said
allowance shall terminate once Employee relocates to the Minneapolis/St. ▇▇▇▇
Metropolitan area and in no event shall be payable after September 30, 2000.
6. Benefits. Employee shall be entitled to participate in such fringe
benefit programs maintained by the Company as are available for other employees
similarly situated.
7. Expenses. The Company shall reimburse Employee for all reasonable
and necessary expenses incurred by Employee in carrying out Employee's duties
under this Agreement. Employee shall present to the Company from time to time an
itemized statement of account of such expenses in such form as may be required
by the Company.
8. Termination. Employee's employment hereunder shall be terminated
upon the happening of any of the following events: (i) expiration of the term of
this Agreement, without renewal; (ii) death of the Employee; (iii) notice to
Employee that Employee's employment is terminated due to Employee's inability to
perform Employee's usual and customary duties by reason of physical of mental
disability; (iv) at any time without notice by the Company for cause; or (v) on
thirty (30) days' prior written notice by either the Company or Employee for any
reason. Employee shall be terminated "for cause" only if the Company determines
Employee has violated an applicable law, rule, or regulation, or committed an
unlawful or dishonest act, any felony, any act of bad faith, fraud,
embezzlement, misappropriation, dishonesty or moral turpitude or the Employee's
loss or suspension of any necessary licensure.
9. Confidentiality. Employee may have access to Confidential
Information, as defined herein, which the Company desires to protect at all
times. Therefore:
A. Employee understands, acknowledges, and agrees that:
(i) "Confidential Information" means any information or
compilation of information possessed by the Company that derives
independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by other persons who can obtain economic value from its
disclosure or use, including but not limited to: (1) any
information not generally known in the industry of the business
regarding the Company's pricing of services, research, development,
marketing, products, customers, clients, potential clients,
servicing, business systems, and techniques; (2) financial
information concerning the Company; and (3) any information that
the Company may from time to time designate as "confidential,"
"proprietary," or "trade secrets" which is not generally know in
the industry of the Company;
(ii) The Employee's duties may involve the use of the
Confidential Information;
(iii) The Company has expended substantial sums of money, time
and effort in developing such Confidential Information; and
(iv) The Company will be substantially harmed in the
competitive marketplace if the Confidential Information is used to
its detriment or to the benefit of others.
B. In recognition of the foregoing, the Employee agrees that:
Exhibit 10.5-2
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(i) The employee will not, during or after employment with
the Company, directly or indirectly use or disclose any
Confidential Information to any other person, firm or company, or
in any way use for his benefit, or to the detriment of the Company,
any Confidential Information obtained during the course of his
employment with the Company, except as required in the conduct of
the Company's business or as authorized in writing by the Company;
and
(ii) All memoranda, notes, records, papers and other documents
and all copies thereof relating to the Company's operation and all
objects related thereto are and remain the property of the Company;
including, but not limited to, those developed, investigated, or
considered by the Company. Employee will not copy or duplicate any
of the aforementioned documents or objects nor use any information
contained therewith, except for the Company's benefit, either
during or after his employment.
10. Covenant Not to Compete. The parties agree that the Company would
be substantially harmed if the Employee competes with the Company during
employment with the Company or after termination of employment with the Company.
In exchange for benefits provided to the Employee hereunder, the Employee agrees
that during his employment with the Company and for a period of six (6) months
after termination of such employment for any reason, the Employee will not
directly or indirectly, without the written consent of the Company:
A. Engage in or begin any business competitive with the Company in
any product or geographic market in which the Company is then engaged
in business. "Engage in" means to directly or indirectly, and whether
as a principal, agent, employee, consultant, through an affiliate, or
otherwise, alone or in association with any individual or any other
entity, carry on, be engaged or take part in, or own, share in the
earnings of, or invest in the stocks, bonds or other securities of, any
entity engaged in such businesses in such area. "Affiliates" means, as
to any party, any entity which controls, or is under common control
with, such party.
B. Solicit any person now, heretofore, or hereafter employed or
retained by the Company as employee, agent or independent contractor to
work for or with Employee as an employee, partner, agent, independent
contractor or otherwise, in a business enterprise competitive with that
of the Company.
C. Vilify, disparage or otherwise slander or defame the business
or business practices of the Company or its officers, directors, or
employees.
11. Indemnification. Employee shall indemnify and hold harmless the
Company from and against any and all claims, actions and suits, and from and
against any and all liabilities, losses, damages, costs, charges, attorney's
fees and other expenses of every nature and character, arising out of, caused by
or in any manner related to claims against the Company provided it has been
finally determined that such claims arise out of actions by Employee that were
illegal or unlawful, out of the scope of his employment, violative of applicable
federal or state statutes, rules or regulations or applicable regulatory
pronouncements. This indemnification shall survive termination of this
Agreement.
12. Notices. All notices required or permitted to be given under this
Agreement shall be given by certified mail, return receipt requested, to the
parties at the following addresses or to such other addresses as either may
designate in writing to the other party:
Exhibit 10.5-3
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If to Company: General Counsel
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Employee: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Severability. In the event any portion of this Agreement is found
to be invalid or unenforceable by any court of competent jurisdiction, the same
will not affect in any respect whatsoever the validity of the remainder of this
Agreement. Further, if any provision is held to be overbroad as written, that
provision should be considered to be amended to narrow its application to the
extent necessary to make the provision enforceable according to applicable law
and enforced as amended.
14. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota, without respect to the
conflict of law provisions thereof.
15. Entire Contract. This Agreement constitutes the entire
understanding and agreement between the Company and Employee with regard to the
matters stated herein and replaces and supercedes any other agreements with the
Company. There are no other agreements, conditions or representations, oral or
written, express or implied, with regard to the employment of Employee by the
Company. This Agreement may be amended only in writing, signed by both parties
hereto.
16. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, and shall inure to the
benefit of and be binding upon the Employee, Employee's heirs, distributees and
personal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Senior Vice President/General Counsel
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Exhibit 10.5-4
