EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into by and
between Dakota Growers Pasta Company ("Company") and ▇▇▇▇ ▇▇▇▇▇▇ and his heirs,
executors and representatives ("Employee").
In consideration of the mutual promises and agreements and
subject to the terms and conditions set forth below, the parties agree as
follows:
1. EMPLOYMENT.
a. POSITION/DUTIES. Effective MARCH 25, 2002 ("Commencement
Date"), Company hereby retains and Employee hereby agrees to serve as
Vice-President of Sales and Marketing subject to the terms of this Agreement and
its Attachments, which are incorporated herein by reference. Employee shall
carry out such responsibilities and duties as are customarily commensurate with
such position. Employee's initial duties and responsibilities are summarized in
ATTACHMENT A to this Agreement. Employee's duties shall be determined by, and
may be changed from time to time as deemed appropriate by, the Board of Company
or such other employee(s) as are designated from time to time by the Board of
Company.
b. LOCATION. Employee shall be primarily based in the
Minneapolis, Minnesota metropolitan area during the term of his employment, but
may be required, by virtue of execution of his duties, to regularly and/or
periodically travel. In the event Company decides that Employee should relocate
and be based in a geographical area other than Minneapolis, Minnesota
metropolitan area, Company will reimburse Employee for such relocation.
c. FULL-TIME EMPLOYMENT. Employee shall devote his entire
productive time, skill, energy, ability and attention to the business of Company
during the term of his employment. During the term of his employment, Employee
shall not, directly or indirectly, render any services of a business, commercial
or professional nature to any other person, corporation, firm or organization,
whether for compensation or otherwise, without the prior written consent of the
Board of Company. Employee represents that the execution and performance of
Employee's duties under this Agreement do not conflict with or result in a
breach or a default under any agreement, contract or instrument to which
Employee is a party or by which Employee is bound.
2. COMPENSATION, BENEFITS AND COVERED EXPENSES.
a. SALARY. Employee's initial gross salary ("Base Salary") on
the Commencement Date shall be one hundred thirty thousand dollars
($130,000.00), paid to Employee at regular intervals as is customary for
employees of Company (less all applicable local, state and federal taxes and
other withholdings and deductions required by law or authorized by Employee).
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At the discretion of Company, on an annual basis consistent
with the Company's fiscal year, Employee may also be eligible to receive merit
increases to his Base Salary based on his performance.
b. INCENTIVE COMPENSATION: BONUSES. In addition to the Base
Salary, Employee shall be entitled to a discretionary incentive compensation
bonus pursuant to the terms of any executive bonus plan that the Board of the
Company may determine from time to time.
c. BENEFITS.
(1) As provided for and consistent with the
applicable plan documents concerning the identified benefits,
Employee will, during the Term of this Agreement, be permitted
(i) to participate in such pension, profit sharing, bonus,
life insurance, hospitalization, major medical, and other
employee benefit plans of Company that may be in effect from
time to time for employees of Company, and (ii) to receive
such other benefits and perquisites as may be made generally
available from time to time to executive officers of Company
(collectively, "Benefits"). The details of such plans in
effect at the Commencement Date, which are subject to change
at the sole discretion of the Board of Company, shall
establish the terms of any benefits received by Employee. In
the event of a conflict between this Agreement and any plan
document, the plan document shall prevail.
(2) Employee will be entitled to fifteen (15) days'
paid vacation each calendar year in accordance with the
vacation policies of Company in effect for its executive
officers from time to time. Vacation must be taken by Employee
at such time or times as approved by the Board of Company.
Employee will also be entitled to paid holidays and other paid
leaves that are consistent with Company's policies for
employees. Vacation days and holidays during any calendar year
that are not used by Employee during such calendar year may
not be used in any subsequent year.
d. EXPENSES. Employee shall be reimbursed for all reasonable,
ordinary and necessary expenses incurred for business activities on behalf of
Company by Employee in the performance of Employee's duties.
3. TERM OF EMPLOYMENT.
Employee's employment shall be for a period of thirty-six (36)
months beginning on the Commencement Date ("Term"), unless sooner terminated by
one of the events listed below:
a. TERMINATION FOR CAUSE BY COMPANY. Employee's employment may
be terminated For Cause at any time by Company. For purposes of this Agreement,
a termination shall be "For Cause" if Employee:
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(1) commits an act of fraud, embezzlement or
misappropriation involving Company;
(2) is convicted by a court of competent jurisdiction
of, or enters a plea of guilty or no contest to, any felony;
(3) commits an act, or fails to commit an act,
involving Company that amounts to willful misconduct, wanton
misconduct or gross negligence, including but not limited to a
material violation of the Company's anti-discrimination and
anti-harassment policies;
(4) intentionally engages in any activity that is in
conflict with or adverse to the interests of Company;
(5) commits an act of dishonesty in connection with
Employee's employment;
(6) breaches Employee's fiduciary duty to Company
(regardless of whether or not for personal profit);
(7) commits an act of self-dealing;
(8) materially breaches this Agreement or fails to
perform the responsibilities and duties identified herein;
(9) commits an act that brings the Company into
substantial public disgrace or disrespect.
Any termination pursuant to this Section 3.a. shall be
effective upon Employee's receipt of written notice thereof. Upon termination
For Cause, all of Employee's rights to compensation, benefits, and expense
reimbursements (as described in Section 2 of this Agreement) shall immediately
terminate to the maximum extent permitted by applicable law. Upon Employee's
termination under this Section 3.a., Company shall be obligated to pay Employee
any earned but unpaid bonuses, any accrued but unused vacation pay, and any
then-existing but unreimbursed business expenses pursuant to Section 2 of this
Agreement. Thereafter, the parties shall have no further obligations to one
another whatsoever pursuant to this Agreement, except the obligations arising
under Sections 5, 6 and 7 hereof.
For purposes of this Agreement, no act or failure to act on
employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company.
b. TERMINATION WITHOUT CAUSE BY COMPANY. Employee's employment
may be terminated Without Cause by Company at any time upon notice provided for
herein. Employee's employment shall be considered to have been terminated
Without Cause by Company if Company provides Employee with sixty (60) days
notice that his services are no longer required or desired by Company and that
his employment will be terminated. If Company terminates Employee's employment
Without Cause, Company shall be obligated to continue to
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pay to Employee the Base Salary then in effect for a period of six (6) months
following the termination of Employee's employment under this Section 3.b., and
to pay Employee any earned but unpaid bonuses, any accrued but unused vacation
pay, and any then-existing but unreimbursed business expenses payable pursuant
to Section 2 of this Agreement, all in accordance with Company's policies.
Thereafter, the parties shall have no further obligations to one another
whatsoever pursuant to this Agreement, except for obligations arising under
Sections 5, 6 and 7 hereof.
Employee's receipt of the benefits set forth in this Section
3.b. is subject to Employee's agreement to, execution and non-revocation of the
Employee Release, ATTACHMENT B. Employee agrees that the sum entailed by the
Employee Release is good and valuable consideration for the surrender of rights
entailed by the Employee Release.
If Company terminates the employment of Employee pursuant to
this Section 3.b., but subsequently discovers or confirms that Cause for
termination existed under Section 3.a. of this Agreement as of the termination
date, Company may notify Employee in writing of the Cause, and cease further
payments hereunder; however, Company will waive any right of recovery for
payments previously made pursuant to this Section 3.b.
c. TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may
resign and terminate his employment with Company for Good Reason (as defined
below) upon sixty (60) days' notice to Company. Any notice delivered to Company
by Employee pursuant to this Section 3.c. shall: (A) state that it is being
delivered pursuant to this Section 3.c., and (B) provide reasonable details
regarding the alleged breach. If Employee's employment is so terminated, Company
shall be obligated to continue to pay to Employee the Base Salary then in effect
for a period of six (6) months following such termination of employment, and to
pay Employee any earned but unpaid bonuses, any accrued but unused vacation pay,
and any then-existing but unreimbursed business expenses payable pursuant to
Section 2 of this Agreement, all in accordance with Company's policies.
Employee's receipt of the benefits set forth in this Section 3.c. is subject to
Employee's agreement to, execution and non-revocation of the Employee Release,
ATTACHMENT B. Employee agrees that the sum entailed by the Employee Release is
good and valuable consideration for the surrender of rights entailed by the
Employee Release. Thereafter, the parties shall have no further obligations to
one another whatsoever pursuant to this Agreement, except for the obligations
arising under Sections 5, 6 and 7 hereof.
For purposes of this Section 3.c., "Good Reason" shall mean
that:
(i) Company has committed a breach of any
material provision of this Agreement and has
failed to satisfactorily cure such breach
within thirty (30) days after receipt of
written notice of such breach from Employee;
PROVIDED, HOWEVER, that a reduction in
Employee's duties or responsibilities as an
employee of Company shall not constitute
Good Reason;
(ii) Company has committed an act of fraud
against Employee with respect to Employee's
employment by Company; or
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(iii) A Change in Control (defined below) in
Section 3.g. of this Agreement.
d. TERMINATION BY EMPLOYEE OTHER THAN FOR GOOD REASON.
Employee may resign and terminate his employment with Company other than for
Good Reason upon sixty (60) days' prior written notice to Company. If Employee's
employment is so terminated, Company shall be obligated to pay to Employee his
then current Base Salary payable to Employee, accrued up to and including the
date on which Employee's employment is so terminated, and to pay Employee any
earned but unpaid bonuses, any accrued but unused vacation pay, and any
then-existing but unreimbursed business expenses payable pursuant to Section 2
of this Agreement, all in accordance with Company's policies. Employee's receipt
of the benefits set forth in this Section 3.d. is subject to Employee's
agreement to, execution and non-revocation of the Employee Release, ATTACHMENT
B. Employee agrees that the sum entailed by the Employee Release is good and
valuable consideration for the surrender of rights entailed by the Employee
Release. Thereafter, the parties shall have no further obligations to one
another whatsoever pursuant to this Agreement, except for the obligations
arising under Sections 5, 6 and 7 hereof.
e. SEPARATION FOR DISABILITY. To the extent consistent with
federal and state law, this Agreement may be terminated if Employee suffers a
physical or mental Disability. For purposes of this Agreement, the term
"Disability" means a physical or mental impairment that substantially limits one
or more of Employee's major life activities which results in Employee's
inability to perform the essential functions of Employee's job with or without
reasonable accommodation for a period of at least sixty (60) consecutive
workdays. For purposes of this Agreement, it is agreed that Employee's ability
to work, on average, exclusive of vacations, at least a forty (40) hour work
week is an essential function of the job, and that an inability of Employee to
so function for a period of sixty (60) consecutive days would result in an undue
hardship to Company. Nothing in this Agreement shall permit the termination of
Employee during any lawful period of absence, whether paid or unpaid, under the
Family and Medical Leave Act (29 U.S.C. ss. 2601 et seq.) or corresponding state
law, if and where such federal or state laws are applicable and Employee has
complied with all eligibility and notification requirements thereof.
If the Board of Company determines in good faith that Employee
has incurred a Disability during the Term of this Agreement, Company may give
Employee written notice of its intention to terminate Employee's employment. In
such event, Employee's employment with Company will terminate effective on the
fifteenth (15th) day after such notice is given ("Disability Termination Date")
if within the fifteen (15) days after such notice, Employee remains unable to
perform the essential functions of his job with or without reasonable
accommodation. Employee will continue to receive his then Base Salary and
benefits until the Disability Termination Date. In the event of Employee's
Disability, Company will pay Employee, on the Disability Termination Date, his
Base Salary then in effect accrued up to and including the Disability
Termination Date, any earned unpaid bonuses, any accrued but unused vacation
pay, and any then-existing but unreimbursed business expenses payable pursuant
to Section 2 of this Agreement, all in accordance with Company's policies. This
Section 3.e. will not limit the entitlement of Employee, his estate or
beneficiaries to any disability or other benefits to which Employee may be
entitled under any plan or policy that is maintained by Company. Nothing in this
Section 3.e. is intended to conflict with existing law.
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f. TERMINATION AS A RESULT OF EMPLOYEE'S DEATH. The
obligations of Company to Employee under this Agreement shall automatically
terminate upon Employee's death during the Term of this Agreement, and upon the
date of Employee's death Company shall then only be obligated to pay promptly to
Employee's estate his Base Salary then in effect accrued up to and including the
date of death, any earned unpaid bonuses, any accrued but unused vacation pay,
and any then-existing but unreimbursed business expenses payable pursuant to
Section 2 of this Agreement, all in accordance with Company's policies.
Thereafter, the parties shall have no further obligation whatsoever to one
another pursuant to this Agreement, except for the obligations arising under
Sections 5, 6 and 7 hereof.
g. CHANGE IN CONTROL PROVISIONS. In the event of a "Change in
Control" of Company, as defined below, if within six (6) months before the
Change in Control or within twelve (12) months after the Change in Control,
Employee terminates his employment for Good Reason or if Company terminates
Employee's employment Without Cause, Company, or its successors and assigns,
will pay to Employee as severance Employee's Base Salary then in effect for
period of twelve (12) consecutive months following such termination of
employment, and pay to Employee any earned but unpaid bonuses, any accrued but
unused vacation pay, and any then-existing but unreimbursed business expenses
payable pursuant to Section 2 of this Agreement, all in accordance with
Company's policies. Employee's receipt of the benefits set forth in this Section
3.g. is subject to Employee's agreement to, execution and non-revocation of the
Employee Release, ATTACHMENT B. Employee agrees that the sum entailed by the
Employee Release is good and sufficient consideration for the surrender of
rights entailed by the Employee Release. Thereafter, the parties shall have no
further obligations to one another whatsoever pursuant to this Agreement, except
for the obligations arising under Sections 5, 6 and 7 of this Agreement.
For purposes of this Agreement, a "Change in Control" will be
deemed to occur if at any time during the term of the Agreement any of the
following events occur: (i) any Person (as defined in this paragraph) or Persons
as a group becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, as amended) of fifty percent (50%) or
more of the total voting power of the outstanding equity securities of Company;
or (ii) Company is merged into another corporation or other entity and
immediately following such merger, the Principal Stockholders (as defined in
this paragraph) do not, as a group, beneficially own more than fifty percent
(50%) of the total voting power of the outstanding equity securities of the
surviving corporation or entity; or (iii) Company sells all or substantially all
of its assets or all or substantially all of its subsidiaries' assets. "Person"
for purposes of this Agreement shall mean any individual, firm, corporation,
partnership, limited liability company, trust or other entity; provided,
however, "Person" shall not include current stockholders as of April 1, 2002
(collectively, "Principal Stockholders").
h. BENEFITS. During the period in which Company is obligated
to pay Employee's Base Salary following the termination of Employee's employment
under Sections 3.a. through 3.g. hereof, Company shall subsidize Employee's
COBRA premiums for continuation of medical and dental coverage under Employer's
group health plans, to the extent Employee and his dependents are otherwise
eligible for such coverage, so that the cost of coverage to Employee is the same
as the cost for an active Company employee with similar coverage. Employee's
eligibility to participate in any other benefit plans of Company following
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Employee's termination of employment shall be determined under the terms of the
applicable benefit plan.
i. NO AUTOMATIC RENEWAL OF AGREEMENT. Upon completion of the
Term of this Agreement, unless it is expressly renewed, or it is otherwise
terminated pursuant to Section 3 of this Agreement, this Agreement shall
automatically expire, except for the parties' obligations set forth in Sections
5, 6 and 7 of this Agreement.
4. COOPERATION WITH COMPANY AFTER TERMINATION.
Following any termination of employment, Employee shall
cooperate fully with Company in all matters relating to the winding up of
Employee's pending work on behalf of Company and the orderly transfer of any
such pending work to other employees of Company as may be designated by Company.
Employee further agrees that at any time during or after the Term of this
Agreement, if any legal action is threatened or commenced against Company for
any event or series of events about which Employee may have knowledge, Employee
shall reasonably cooperate with Company in its defense of such legal action.
Company also agrees that, if Employee devotes substantial time to Company on
behalf of Company after the termination of his employment, Company will provide
Employee with an hourly payment of [AMOUNT] ($____) less all applicable local,
state and federal taxes and other withholdings and deductions required by law or
authorized by Employee, and reimburse him for reasonable expenses, provided
however, that Company shall not provide Employee with any payments if Employee's
employment was terminated Without Cause.
5. CONFIDENTIAL INFORMATION.
Company and Employee acknowledge that the services to be
performed by Employee under this Agreement are unique and extraordinary, and as
a result, during the term of his employment, Employee will have access to
certain information not generally known to the public or to the competitors of
Company relating to the business, customers, employees, sales data, policies and
procedures, marketing strategies and trade secrets of Company. Employee
recognizes such information is proprietary and confidential. Furthermore,
Employee acknowledges this information is valuable, special and essential to the
successful and effective conduct of the business of Company and its affiliates
and has been developed by Company and its affiliates at their own cost and
expense.
For purposes of this Agreement, in addition to the items
identified above, Confidential Information includes, but is not limited to,
information, records, and data in any form or format, not publicly known, about
Company's methods, processes, techniques, equipment, services and products,
including, but not limited to, business methods, salary structure, pricing
structure, procedures, policies, information systems, programs, databases,
computer systems, proprietary software, proprietary hardware designs, graphic
images, audio expressions, product designs, features and components, financial
statements or related information, budgetary information, internal security
codes or passwords, or copyrights and other intellectual property of Company or
its affiliates. Confidential Information also includes matters relating to the
terms (including price terms) of contractual relations with and/or arrangements
with customers, vendors and suppliers.
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This Confidential Information constitutes a valuable asset of
Company, access to and knowledge of which are essential to the performance of
Employee's duties. Employee acknowledges and agrees that all such Confidential
Information is and shall remain the exclusive property of Company. Employee
agrees that, except as directed by the Board of Directors of Company, Employee
will not at any time, during or after the term of this Agreement, or after
Employee's termination, use or disclose to any person, directly or indirectly,
for any purpose other than for the benefit of Company, any Confidential
Information, whether prepared by Employee or otherwise coming into Employee's
possession or control, without the prior written permission of the Board of
Directors of Company.
Confidential Information does not include:
(i) any information that was in the public
domain at the time it was disclosed or
subsequently becomes in the public domain
other than as a result of a disclosure by
Employee in violation of this Agreement;
(ii) information that Employee can demonstrate by
written proof was received by Employee after
the time of disclosure by Company or after
the time of discovery by Employee in the
course of rendering services under this
Agreement from a third party who did not
acquire such information in violation of a
confidentiality agreement with Company or
its employees or agents, or from a third
party who was not otherwise prohibited from
transmitting the information to Employee by
a contractual, legal or fiduciary obligation
of confidence to Company; and
(iii) any information disclosed by Employee with
the prior written consent of the Board of
Company.
This confidentiality provision shall survive the termination
of this Agreement. Consistent with statutory and common law, following
Employee's termination of employment with Company, regardless of the reason for
the termination, Employee agrees not to disclose or use Confidential
Information, directly or indirectly, for Employee's own benefit to compete,
directly or indirectly, with Company, or to any other person, firm, association,
company, or organization that does or will compete with Company, directly or
indirectly.
For purposes of this Agreement, Company's business is defined
at the present time to be the manufacture and distribution of pasta products. In
the event that, and each time during the term of this Agreement, and any renewal
thereof, Company adds a substantially different product or line of business to
its business, the parties agree that such additional products or lines of
business, as appropriate, shall be included in the definition provided by this
paragraph.
6. NO SOLICITATION OF CUSTOMERS OR EMPLOYEES OF COMPANY.
Consistent with statutory and common law, following Employee's
termination of employment from Company, regardless of the reason for the
termination, Employee agrees not to
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solicit or recruit, or assist or attempt to solicit or recruit, directly or
indirectly on behalf of Employee, or for any other person, firm, association,
company or organization any current employee working at the time for Company, or
any existing customers of Company.
7. RETURN OF PROPERTY.
Employee agrees that upon termination of this Agreement, or
upon request by Company, Employee shall turn over to Company all documents,
files, computer files or data, e-mail records, office supplies and any other
material or work product in Employee's possession or control, including all
backups, copies, and reproductions which were created pursuant to or derived
from Employee's services to Company.
8. ENTIRE AGREEMENT.
This Agreement together with all identified Attachments
constitutes the entire Agreement between the parties with respect to the subject
matter hereof. This Agreement supersedes and replaces all prior or
contemporaneous negotiations, discussions, or preliminary or final agreements,
written or oral.
9. RENEWAL.
Neither party has any obligation to renew this Agreement at
the expiration of its Term.
10. SAVING PROVISION.
If any restriction or limitation in this Agreement is deemed
to be unenforceable, onerous, unduly restrictive, or unreasonable as to scope,
activity, territory, or duration, by a court, administrative agency or
arbitrator of competent jurisdiction, it shall not be stricken in its entirety
and held totally void and unenforceable, but shall be deemed rewritten to the
minimum extent possible in order to limit any restriction or limitation or other
term to the minimum extent necessary in order to effectuate the intent of the
parties and shall remain enforceable to the maximum extent permissible within
reasonable bounds in order to effect such lesser restriction as such court,
administrative agency or arbitrator shall deem reasonable. If any phrase,
clause, or provision of this Agreement is declared invalid or unenforceable by a
court, administrative agency or arbitrator of competent jurisdiction, and such
phrase, clause, or provision is not capable of being rewritten pursuant to the
foregoing sentence, then such phrase, clause, or provision shall be deemed
severed from this Agreement, as applicable, but will not affect any other
provisions of this Agreement, which shall otherwise remain in full force and
effect.
11. INJUNCTIVE RELIEF.
Employee acknowledges that the breach or threatened breach of
Sections 5, 6 and 7 of this Agreement would give rise to irreparable injury to
Company which injury would be inadequately compensable in money damages.
Accordingly, Company may seek and obtain a restraining order and/or injunction
prohibiting the breach or threatened breach of any provision, requirement or
covenant of this Agreement, in addition to and not in limitation of any other
legal remedies which may be available. Employee further acknowledges and agrees
that the
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agreements set out above are necessary for the protection of Company's
legitimate business interests and are reasonable in scope and content.
12. WAIVER OF JURY TRIAL.
Each of the parties hereto hereby irrevocably waives any and
all right to trial by jury in any legal proceeding arising out of or relating to
the Agreement or the transactions contemplated hereby.
13. ENFORCEMENT.
The provisions of this Agreement shall be enforceable
notwithstanding the existence of any claim or cause of action against Company by
Employee, whether predicated on this Agreement or otherwise.
14. GOVERNING LAW.
Except to the extent preempted by federal law, this Agreement
shall be construed in accordance with the laws of the State of Minnesota without
regard to internal conflict of law principles, and any litigation or legal
action concerning this Agreement, not otherwise waived, shall be brought before
a state or federal court of competent jurisdiction in Hennepin County,
Minnesota.
15. SURVIVAL.
The expiration or termination of the Term will not impair the
rights or obligations of any party hereto which have accrued hereunder prior to
such expiration. In addition to the foregoing, Sections 5, 6, 7 and 8 will
survive the expiration or termination of Employee's employment.
16. NOTICE.
Any notice, consent, request or other communication made or
given in connection with this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by registered or certified
mail, return receipt requested, to those listed below at their following
respective addresses or at such other address as each may specify by notice to
the other:
To Employee:
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To Company:
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17. MODIFICATION.
This Agreement may be modified, supplemented and/or amended
only by a writing that is signed by both Company and Employee.
18. CAPTIONS.
The captions of this Agreement are for convenience of
reference only and shall not be deemed to define or limit any of the terms
hereof.
19. FURTHER ASSURANCES.
The parties to this Agreement shall execute and deliver any
documents or instruments in addition to those described in this Agreement which
are necessary or appropriate to carry out the terms hereof.
20. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of and be
enforceable by Employee, Company and their respective heirs, executors, personal
representatives, successors and assigns, except that Employee may not assign any
of his or its rights to delegate any of his obligations hereunder without the
prior written consent of Company. Employee hereby consents to the assignment by
the Company of all of its rights and obligations hereunder to any successor to
the Company by merger or consolidation or purchase of all or substantially all
of the Company's assets.
21. NO WAIVER.
No party's failure to enforce any provision or provisions of
this Agreement will be construed in any way as a waiver of any such provision or
provisions, or prevent that party thereafter from enforcing each and every other
provision of this Agreement.
22. COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original for all purposes and all of which,
when taken together, shall constitute one agreement.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective as of the day and year first set forth above.
DAKOTA GROWERS PASTA COMPANY
By:
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Its:
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▇▇▇▇ ▇▇▇▇▇▇
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Notary Public
My Commission expires:
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ATTACHMENT A
[Job Duties]
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ATTACHMENT B
EMPLOYEE RELEASE
I, ▇▇▇▇ ▇▇▇▇▇▇, in consideration of the promises by Dakota
Growers Pasta Company ("Company") to provide payment to me in the amount of one
thousand dollars ($1,000.00), (less applicable deductions and withholdings
required by law or authorized by me), and the payment provided to me in Section
3.b., 3.c., 3.d., or 3.g., whichever may be applicable, of the Executive
Employment Agreement between the parties, for and on behalf of myself, my
agents, heirs, executors, administrators, and assigns, do hereby release and
forever discharge Company and all of its and their respective parents,
affiliates, subsidiary corporations, divisions, successors, and assigns, past
and present, and each of them, as well as their and their respective agents,
directors, officers, partners, employees, representatives, insurers, attorneys,
and joint venturers, and each of them (the "Released Parties"), from any and all
claims which are based upon acts or events that occurred on or before the date
on which this Release becomes enforceable, including any and all actions or
lawsuits arising under any federal, state, or local employment laws or
anti-discrimination statutes, which include, (a) any federal, state or local
civil rights anti-discrimination or employment-related law, statute or
ordinance, including, but not limited to, any claims arising under Title VII of
the Civil Rights Act of 1964, as amended; the Americans with Disabilities Act;
the Age Discrimination in Employment Act, as amended; the Family and Medical
Leave Act; the Fair Labor Standards Act, as amended; the National Labor
Relations Act of 1935, as amended; the Employee Retirement Income Security Act,
as amended; and any other federal statutory employment law; and the Minnesota
Human Rights Act; the Minnesota Equal Pay Law; the Minnesota Age Discrimination
Act; the North Dakota Human Rights Act; the North Dakota Equal Pay Act; and the
North Dakota Age Discrimination
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Act; or (b) federal, state or local law, statute, ordinance or common law
doctrine regarding: (i) the existence or breach of oral or written contracts of
employment; (ii) negligent or intentional misrepresentations; (iii) wrongful
discharge; (iv) interference with contract; (v) defamation; (vi) assault and/or
battery; (vii) negligent or intentional infliction of emotional distress; (viii)
unlawful discharge in violation of public policy; (ix) retaliation; (x)
harassment; (xi) promissory estoppel; or (xii) failure to provide a safe work
environment.
The phrase "any and all claims" shall be interpreted liberally
to preclude any further disputes, litigation, or controversies between myself
and any of the Released Parties based upon events that occurred on or before the
effective date of this Release.
I acknowledge that I have been given a period of no less than
21 days to consider whether or not to sign this Release and have been advised in
writing to consult with an attorney prior to signing it. I understand that I may
revoke this Release at any time on or before the date which is seven (7)
calendar days after the date of my signature on this Release and that, unless
previously revoked, Release will be effective and enforceable upon the
expiration of the seven-day revocation period. I acknowledge that I was not
already entitled to receive the payment described above and that this payment is
valuable consideration in exchange for my waiver of rights and claims in this
Release.
___ Company Initials ___ Employee Initials
Page 15 of 16
Signed at ____________, Minnesota, this _____ day of____, 2002.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
I have read this Release and understand all of its terms. I
execute it voluntarily and with full knowledge of its significance.
Signed this _____ day of __________ , 20________.
-----------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, EMPLOYEE
___ Company Initials ___ Employee Initials
Page 16 of 16