EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of this sixth day of
January, 1998, by and between XXXXXX X. XXXXXXXXX (the "Employee") and NORTECH
FOREST TECHNOLOGIES, INC., a Delaware corporation (the "Company").
WHEREAS, the Company desires to employ the Employee to render services to
the Company on the terms and conditions set forth in this Agreement, and the
Employee desires to be employed by the Company on such terms and conditions.
NOW, THEREFORE, the parties agree as follows:
1. Hiring of Employee: Duties. The Company hereby employs the Employee, and
the Employee hereby accepts such employment and agrees to perform services for
the Company, upon the terms and conditions set forth in this Agreement. During
the term of this Agreement, Employee agrees to serve as a Chief Operating
Officer ("COO") of the Company, to manage the day-to-day business and affairs of
the Company, to carry out the decisions of the Chief Executive Officer ("CEO")
of the Company and to perform such reasonable employment duties as the CEO shall
assign to him from time to time. The Employee agrees to serve the Company
faithfully and to the best of his ability and to devote his full time, attention
and effort to the business and affairs of the Company.
2. Term. Unless terminated at an earlier date in accordance with Section 6
of this Agreement, the term of the Employee's employment shall be for three (3)
years commencing January 6, 1998. Thereafter, the term of this Agreement may be
extended by the Company, at its option, for successive one (1) year periods by
written
notice to the Employee at least ninety (90) days prior to the end of the initial
term or any extension term.
3. Compensation.
3.1 Base Salary. As compensation for the Employee's services
rendered under this Agreement, the Company shall pay the Employee a base salary
of Sixty Five Thousand Dollars ($65,000.00) per year, payable in accordance with
the Company's normal payroll procedures and policies.
3.2 Bonus. The Employee shall also be eligible for a bonus in an
amount determined by the Executive Committee of the Board of Directors of the
Company in its sole and absolute discretion.
4. Benefits.
4.1 Insurance. As additional compensation, Employer provides to
Employee insurance coverage substantially comparable to the insurance provided
to Employee by his immediately previous Employer, the State of Minnesota.
4.2 Vacation. Employee shall be entitled to three weeks of paid
vacation during each of the next three years of employment.
5. Expenses. The Company shall reimburse the Employee for all reasonable
and deductible out-of-pocket expenses which are incurred by the Employee in
connection with the performance by him of his duties during the term of this
Agreement. The Employee shall keep detailed and accurate records of expenses
incurred in connection with the performance of his duties, and provide the same
to the Company when seeking reimbursement.
6. Intellectual Property.
6.1 Disclosure and Assignment. The Employee will promptly disclose
in writing to the Company complete information concerning each and every
invention, discovery, improvement, device, design, apparatus, practice, process,
method or product, whether patentable or copyrightable or not, made, developed,
perfected, devised, conceived or first reduced to practice by the Employee,
either solely or in collaboration with others, during the period of the
Employee's employment, or within six months thereafter, whether or not during
regular working hours, relating either directly or indirectly to the business,
products, practices or techniques of the Company (hereinafter referred to as
"Developments"). The Employee hereby acknowledges that any and all of such
Developments are the property of the Company and hereby assigns and agrees to
assign to the Company with formal documentationany and all of the Employee's
right, title and interest in and to any and all of such Developments.
6.2 Limitation. The provisions of Section 6.1 shall not apply to
any Development meeting all of the following conditions:
(a) such Development was developed entirely on the Employee's
own time; and
(b) such Development was made without the use of any Company
equipment, supplies, facility or trade secret information; and
(c) such Development does not relate
(i) directly or indirectly to the business of the
Company, or
(ii)to the Company's actual research or development
engaged in by the Company during the term of this
Agreement or at any time prior thereto; and
(d) such Development does not result from any work performed
by the Employee for the Company.
6.3 Assistance of the Employee. Upon request and without further
compensation (other than reimbursement for all reasonable expenses) the Employee
will do all lawful acts, including, but not limited to, the execution of papers
and lawful oaths and the giving of testimony, that in the opinion of the
Company, its successors and assigns, may be necessary or desirable in obtaining,
sustaining, reissuing, extending and enforcing United States and foreign letters
patent, including, not limited to, design patents, or other applicable
registrations, on any and all of such Developments, and for perfecting,
affirming and recording the Company's complete ownership and title, and to
cooperate otherwise in all proceedings and matters.
6.4 Records. The Employee will keep reasonably complete accounts,
notes, data and records of all Developments in the manner and form requested by
the Company. Such items shall be the property of the Company, and, upon its
request, the Employee will promptly surrender same to it or, if not previously
surrendered upon its request or otherwise, the Employee will surrender the same,
and all but one copy, to the Company upon the conclusion of his employment.
7. Termination.
7.1 By Death. The Employee's employment shall terminate
automatically upon his death. The Company shall pay to the Employee's
beneficiaries or estate the base salary to which he is entitled pursuant to
Section 3.l through the end of the month in which such death occurs.
7.2 By Disability. If, in the sole opinion of the Board of
Directors, the Employee has been prevented from properly performing his duties
by reason of any physical or mental incapacity by being absent from work for a
period of more than eighty (80) days in the aggregate or sixty (60) consecutive
days in any twelve (12)- month period, then the Employee's employment shall
terminate on, and the base salary to which the Employee is entitled pursuant to
Section 3.1 shall be paid through, the last day of the month in which the Board
of Directors determines that the Employee is disabled, as specified above, and
thereafter the Company's obligations shall terminate. Nothing in this Section
shall affect the Employee's rights under any Company sponsored disability plan
in which he is a participant.
7.3 By Company for Cause. The Company may terminate the Employee's
employment immediately for Cause (as defined below) at any time by giving
written notice to the Employee. The Company shall pay Employee the base salary
to which he is entitled pursuant to section 3.1 through the end of the day of
such termination, and thereafter the Company's obligations shall terminate.
Termination shall be for Cause if:
(a) the Employee embezzles funds of the Company, is
convicted of a felony or any criminal activity
involving dishonesty, fraud, breach of trust
involving money or property of the Company, or
(b) the Employee violates any of the provisions of this
Agreement; provided, however, that the Company shall
first have given the Employee written notice of the
Employee's violation of the terms of this Agreement
and the Employee shall have failed to remedy such
violation within thirty (30) days of the date of such
notice (other than the provisions of Section 7.3(a),
for which there shall be no notice and cure).
(c) Employee uses activities or words which bring
significant discredit to the reputation of the
Company.
7.4 By Company Without Cause. The Company may, upon ninety (90)
days' advance written notice to the Employee, terminate the Employee's
employment at any time effective after January 1, 2001 without any Cause and
without any liability to the Employee other than to pay to the Employee his base
salary through the effective date of termination. Notwithstanding the foregoing,
if the Employee breaches any part of Section 6, 7.5, 8 or 9 following the
delivery of notice of his termination under this Section 7.4, the termination
shall, without further action by any party, be immediately effective as of the
date of such breach, and the Company shall have no obligation to make any
further payments of base salary to the Employee other than base salary for the
period ending on the date of such breach. The Employee agrees that the Company
may dismiss him under this Section 7.4 without regard to
(a) any general or specific policies (whether written
or oral) of the Company relating to the
employment or termination of its employees, or
(b) any statements made to the Employee, whether made
orally or in writing, that pertain to the
Employee's relationship with the Company.
7.5 Surrender of Records and Property. Upon termination of his
employment with the Company for any reason, the employee shall deliver promptly
to the Company all records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, calculations either as
originals or copies, which are the property of the Company or which relate in
any way to the business, products, practices or techniques of the Company, and
all other property, trade secrets and confidential information of the Company,
including, but not limited to, all documents which in whole or in part contain
any trade secrets or confidential information of the Company, which in any of
these cases are in his possession or under his control.
7.6 Resignation. Upon termination of employment, the Employee
shall be deemed to have resigned from all offices and directorships then held
with the Company or any affiliated company.
7.7 Survival. Notwithstanding any termination of the Employee's
employment, in consideration of his employment to the date of such termination,
the Employee shall remain bound by the provisions of this Agreement which
specifically relate to periods, activities or obligations upon or subsequent to
the termination of the Employee's employment.
8. Noncompetition Covenant.
8.1 Agreement Not to Compete. The Employee agrees that, during the
term of his employment by the Company and for a period of twelve (12) months
thereafter,
the Employee shall not, directly or indirectly, engage or be interested in any
business which offers, markets or sells any repellant service or repellant
product which competes directly with any repellant service or repellant product
of the company in the United states and such other geographic areas as the
Company conducts business. The Employee shall be deemed to be interested in a
business if the Employee is engaged or interested in that business as a
stockholder, director, officer, employee, salesman, sales representative, agent,
partner, individual proprietor, principal, lender, consultant or otherwise, but
not if such interest is limited solely to the ownership of five percent (5%) or
less of the equity or debt securities of any class of a corporation whose shares
are listed for trading on a national securities exchange or traded in the
over-the-counter market.
8.2 Indirect Competition. The Employee agrees that during the term
of his employment by the Company and for a period of twelve (12) months
thereafter, the Employee will not, directly or indirectly, assist or encourage
any other person in carrying out, directly or indirectly, any activity that
would be prohibited by the provisions of Section 8.1 if such activity were
carried out by the Employee either directly or indirectly. Without limiting the
generality of the foregoing, the Employee agrees that he will not, directly or
indirectly, induce any employee of the Company to carry out, directly or
indirectly, any such activity, solicit, assist, entice, induce or encourage (or
attempt to do so) any person employed by the Company to leave the employment of
the Company, direct or advise any person against becoming an employee of the
Company or recruit or employ any person that the Company is actively recruiting
for employment.
8.3 Necessary and Reasonable. The employee agrees that the
covenants provided for in Sections 8.1 and 8.2, including the term and
geographic area encompassed therein, are necessary and reasonable in order to
protect the Company in the conduct of its business and to protect the Company in
the utilization of the assets, tangible and intangible, including the goodwill
of the Company.
8.4 Null and Void. The noncompete covenant hereunder is null
and void if:
(a) The Company files, voluntarily or involuntarily, for
the protection of the bankruptcy courts either
through a reorganization or a bankruptcy; or
(b) The Company is acquired by or merged into another
company; or
(c) Employee is involuntarily terminated except if the
termination was for embezzlement from the Company,
criminal activity involving dishonesty, fraud, or
breach of trust involving money or property of the
Company.
9. Nondisclosure Covenant. Except as permitted or directed by the
Company, during the term of this Agreement and all times thereafter, the
Employee shall not, directly or indirectly, divulge, furnish or make accessible
to anyone or use in any way (other than in the ordinary course of the business
of the Company), any trade secret information of the Company which he has
acquired or become acquainted with during any period of his employment or
retention by the Company, whether developed by him or others. Trade secret
information means information, including a formula, pattern, a compilation,
program, device, method, technique, or process, that:
(a) 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, and
(b) It is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
The employee acknowledges that the Company's trade secrets are a unique and
valuable asset of the Company and represent a substantial investment by the
Company, and that any disclosure or use of such knowledge or information other
than for the sole benefit of the Company would be wrongful and would cause
irreparable harm to the Company. The Employee will refrain from any acts or
omissions that would reduce the value of such trade secret information to the
Company.
10. Injunctive Relief. The Employee agrees that it would be
difficult to compensate the Company fully for damages for any violation of the
provisions of Sections 6, 8 or 9 of this Agreement. Accordingly, the Employee
specifically agrees that the Company shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement and that
such relief may be granted without the necessity of proving actual damages. This
provision with respect to injunctive relief shall not diminish the right of the
Company to claim and recover damages in addition to injunctive relief.
11. Breach. The Company and the Employee separately agree that any
breach by either of them of this Agreement shall, in addition to any other
remedies available to such party, enable the Employee or the Company, as
applicable to recover
costs of litigation or mediation and reasonable attorney fees incurred in
enforcing this Agreement.
12. Severability. To the extent that any provision of this
Agreement shall be determined to be invalid or unenforceable, the invalid or
unenforceable portion of such provision shall be deleted from this Agreement,
and the validity and enforceability of the remainder of such provision and of
this Agreement shall be unaffected. In furtherance of and not in limitation of
the foregoing, it is expressly agreed that should the duration of or geographic
extent of, or business activities covered by, the provisions in Section 8 be
determined to be in excess of that which is valid or enforceable under
applicable law, then such provision shall be construed to cover only that
duration, geographic extent or those activities which may validly or enforceably
be covered. The Employee acknowledges the uncertainty of the law in this respect
and expressly stipulates that this Agreement shall be construed in a manner
which renders its provisions valid and enforceable to the maximum extent
possible under applicable law (not exceeding its express terms).
13. Entire Agreement. This agreement contains the entire agreement
between the parties relating to the retention of the Employee by the Company and
supersedes all prior agreements and understandings, whether written or oral,
between the parties relating to such employment. This Agreement may not be
amended or changed except in writing executed by both parties.
14. Assignment. The rights and obligations of the Employee cannot
be assigned or delegated by the Employee.
15. Governing Law. This Agreement has been entered into by the
parties in the State of Minnesota and shall be construed and enforced in
accordance with the laws of the State of Minnesota.
16. Notice. Any notice required or permitted to be given under
this Agreement shall be deemed to have been delivered on the date following the
day the notice is deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested, and addressed as follows:
If to Employee: Xxxxxx X. Xxxxxxxxx
000 Xxxxxx Xx. X.
Xx. Xxxx, XX 00000
If to the Company: Nortech Forest Technologies, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx X00
Xx. Xxxxx Xxxx, XX 00000
or such other address as a party elects by giving the other party not less than
thirty (30) days advance written notice.
The parties have executed this Agreement effective January 6, 1998.
NORTECH FOREST TECHNOLOGIES, INC.
By /s/ Xxxx Xxxxxxxx
Its CEO
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
