Exhibit 10.7
X. X. XXXXXXXX COMPANY
MANAGEMENT-EMPLOYEE AGREEMENT
_____________, hereinafter called "employee", "I", and "me".
I.
RECITALS
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Employee wishes to be employed by the Company in a significant sales and
management position and Employee wishes to enter into and continue such
employment with the potential of increased responsibility and knowledge about
the Company's affairs.
II.
DEFINITIONS
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In this Agreement:
A. The "Company" means X. X. XXXXXXXX COMPANY, and existing or future
affiliated corporations including all subsidiaries, divisions and enterprises
owned or controlled by said corporations.
B. "Confidential Information" shall mean,
1. All information, written (or generated/stored on magnetic,
digital, photographic or other media) or oral, not generally
known, or proprietary to the Company about the Company's designs,
customers, suppliers, and the Company's marketing, accounting,
merchandising, and information-gathering techniques and methods,
and all accumulated data, listings, or similar recorded matter
used or useful in food sales, freight contracting and freight
forwarding (all modes) and customs house brokerage operations
including but not limited to the customer and carrier lists,
business forms, weekly loading lists, service contracts, all
pricing information, computer programs, tariff information and
marketing aids.
2. All information disclosed to me, or to which I have access during
the period of my employment, for which there is any reasonable
basis to be believed is, or which appears to be treated by the
Company as, Confidential Information, shall be presumed to be
Confidential Information hereunder.
C. "Competing Business" means any business, firm, undertaking, company or
organization, other than the Company, which:
1. is engaged in, or is about to become engaged in, the fresh food
or food ingredient sales business (similar to the Company's food
distribution), or the freight contracting, contract logistics,
freight forwarding or custom house brokerage businesses, or
2. regardless of the nature of its business, either competes
directly or indirectly with the Company in the contracting,
arranging, providing, procuring, furnishing or soliciting food
distributors, freight contracting, contract logistics, freight
forwarding, custom house brokerage or transportation services, or
3. any person, company or organization engaged in the produce or
transportation industries as a shipper, receiver or carrier.
D. "Customer" means any person, company or organization that has
employed or potentially could employ the company's services in food
distribution, freight contracting, contract logistics, freight forwarding or
custom house brokerage.
III.
NATURE OF EMPLOYEE'S ACTIVITIES
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A. I am aware and acknowledge that the Company has developed a special
competence in food distribution, freight contracting, contract logistics,
freight forwarding and custom house brokerage and has accumulated as proprietary
information (not generally known to others) more and better information about
shippers, carriers, truckers, trucking equipment, railroads, ocean carriers,
foreign agents, customers, purchasing agents and similar matters which are of
unique value in the conduct and growth of the Company's business. This
proprietary pool of information has enabled the Company to conduct its business
with unusual success and has thus afforded unusual job opportunities and
potential to its employees.
B. In the course of my employment, I have been and wish to continue to be
employed in a position or positions with the Company in which I may receive or
contribute to Confidential Information as hereinabove defined. It is my desire
to continue progressing in the Company in both sales and management capacities,
and I recognize that optimum progression and specialization cannot take place
unless Confidential Information relating to technology, processes, plans,
development, activity, customers and the like is entrusted to me.
C. I acknowledge that, in the course of carrying out, performing and
fulfilling my responsibilities for the Company, I have had access to and been
entrusted with Confidential Information relating to the Company's business and
customers, and I recognize that disclosure of any such Confidential information
to
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competitors of the Company or to the general public would be highly
detrimental to the Company. I further acknowledge that, in the course of
performing my obligations to the Company, I will be a representative of the
Company to many of the Company's customers and, in some instances, practically
the Company's sole and exclusive contact with the customer. In this capacity, I
will be significantly responsible for maintaining or enhancing the business
relationship and/or goodwill of the Company with such customers.
IV.
PROTECTION OF BUSINESS
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Therefore, in consideration of my employment by the Company and in
consideration of the compensation to be paid to me from time to time during such
employment,
I hereby agree as follows:
A. Except as may be required in the performance of my employment duties
with the Company, I will never at any time use, disclose, copy or assist any
other person or firm in the use, disclosure or copying of any Confidential
Information.
B. Upon the termination of my employment with the Company, all records or
copies of such Confidential Information in my possession, whether prepared by me
or others, and regardless of how the same came into my possession, will be
turned over to the Company by me.
C. For a period of two (2) years after the termination of my employment
with the Company, however occasioned and for whatever reason, I will not:
1. Directly or indirectly solicit, sell or render services to or for
the benefit of any Competing Business, including a business which
I may own in whole or in part, with any customer or prospective
customer of the Company with whom I worked or had regular
contact, or on whose account I worked, at any time during the
last two years of my employment with the Company; or
2. Cause or attempt to cause any customer of the Company to divert,
terminate, limit or in any manner modify or fail to enter into
any actual or potential business relationship with the Company.
3. It is understood by me and agreed to by the Company that upon the
termination of my employment hereunder, I will not be
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restricted territorially from competing with the Company so long
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as I comply with the provisions of Part IV herein.
4. It is further understood and agreed that the running of the two
(2) year period of restriction set forth in Part IV C shall be
tolled during any time period in which I violate the provisions
of Part IV C.
D. I will not solicit any employee of the Company for employment with or
on behalf of any Competing Business or attempt to interfere with the employment
contracts or contract relationships between the Company and its employees, or
directly or indirectly cause or attempt to cause any employee of the Company to
terminate employment with the Company.
E. I will devote my entire time, attention and energies to the business
of the Company and shall not, during the term of this Agreement, be engaged in
any other business activity whether or not such business is pursued for gain,
profit or other pecuniary advantage. This restriction, however, shall not be
construed as preventing me from investing my assets in such form or manner as
will not require any services on my part in the day-to-day operation of the
affairs of the companies in which such investments are made.
V.
POST-EMPLOYMENT COMPENSATION
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A. Except as provided in paragraphs C and D of this Part V, if, following
the termination of my employment with the Company, I am unable to obtain
subsequent employment solely because of the provisions of Part IV C 1 and Part
IV C 2 above, then, for each month of such unemployment and for a maximum of 24
consecutive months, the Company shall make payment to me equal to my average
compensation paid or accrued for the two (2) calendar years previous to
termination (exclusive of employee benefits), up to a maximum of Two Thousand
Dollars ($2,000.00) per month.
B. During each month of unemployment, and as a condition precedent to my
claim for post-employment compensation, I agree:
1. to conscientiously seek employment, and
2. to prepare and submit to the Company a detailed written account
of my efforts to obtain employment, and
3. to prepare and submit to the Company a written statement that I
have not found employment and that the sole reason I was
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unable to obtain employment was due to the provisions of Part IV
C 1 and Part IV C 2 above.
The Company shall be afforded a ten (10) day period from the receipt of my
written account to investigate and confirm the validity thereof, and, upon
expiration of said period, the Company shall be obligated to make prompt payment
of the monthly amount due under this Part V.
C. Notwithstanding the foregoing, the Company, at its option, may be
relieved of making post-employment compensation payments:
1. for any month during which I have not conscientiously sought
employment, or
2. for any month during which I have failed to account as provided
for above, or
3. by giving me written permission to accept available employment or
a written release from the obligations of Part IV C above.
D. Notwithstanding anything above to the contrary, Part V of this
Agreement shall not apply if I am dismissed from employment by the Company for
cause, i.e., for dishonesty, embezzlement, violation of government rules and
regulations, persistent performance deficiency, or flagrant and repeated failure
to follow company rules, regulations and policies. However, in the event I am
dismissed for cause, I acknowledge that the remainder of this Agreement (except
Part V) shall remain in full force and effect.
VI.
EXIT INTERVIEW
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To ensure a clear understanding of this Agreement, I agree to engage in an
Exit Interview with the Company at a time and place designated by the Company. I
understand and agree that during said Exit Interview I will be provided with an
Exit Interview Affidavit which, if I choose to accept its terms by signing it,
will limit the scope of the restrictions set forth in Parts IV C 1 and IV C 2 of
this Agreement to a specified list of customers. Provided, however, in the event
that I elect not to sign the Exit Interview Affidavit offered to me by the
Company, I understand and agree that the restrictions set forth in Parts IV C 1
and IV C 2 of this Agreement shall remain in full force and effect as written.
The Company, at its option, may elect to conduct the Exit Interview either
at the Company's principal headquarters in Minneapolis, Minnesota, or through
written correspondence, or by phone; provided, however, that the Company shall
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pay all reasonable travel and lodging expenses incurred by me in attending such
Exit Interview if the Company requires my personal attendance.
VII.
INJUNCTIVE RELIEF
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In the event of a breach or threatened breach of Part IV C 1 and/or IV C 2
above, the Company shall be entitled to a temporary and/or permanent injunction
restraining such breach, and shall further be entitled to recover ali attorney's
fees reasonably incurred in establishing such violations of this Agreement; but
nothing herein shall be construed as prohibiting the Company from pursuing any
other remedy available to it for such breach or threatened breach.
VIII.
SEPARATE AND DIVISIBLE COVENANTS
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The covenants contained in this Agreement are intended to be separate and
divisible covenants, and, if for any reason, any one or more thereof shall be
held to be invalid or unenforceable, in whole or in part, it is agreed that the
same shall not be held to affect the validity or enforceability of any other
covenant or part of this Agreement. The terms and period set forth in Part IV C
1 and Part IV C 2 shall be reduced to the maximum permitted by the law actually
applied to determine the validity of each such paragraph.
IX.
GOVERNING LAW
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I agree that all of my obligations hereunder shall be binding upon my
heirs, beneficiaries and legal representatives and that the law of the State of
Minnesota shall govern as to the interpretation and enforceability of this
Agreement.
Signed and delivered this ____ day of _______, 199_.
WITNESSETH:
___________________________________ ___________________________________
Employee
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Accepted for X.X. XXXXXXXX COMPANY this ____ day of _________, 199_, at
Eden Prairie, Minnesota. This Agreement becomes binding upon acceptance by the
Company.
WITNESS: X.X. XXXXXXXX COMPANY
_____________________________ By_________________________
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