▇▇▇▇ ▇▇▇▇
AND
DEVELOPED TECHNOLOGY RESOURCE, INC.
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, effective
October 1, 1998, is made by and between ▇▇▇▇ ▇▇▇▇ ("Executive")
and Developed Technology Resource, Inc. ("DTR"), a Minnesota
corporation.
WHEREAS, DTR desires the services of Executive to assist DTR
in its operations as provided herein, and Executive has agreed to
provide such services;
NOW, THEREFORE, DTR and Executive, in consideration of the
mutual promises and covenants contained herein, agree as follows:
1. EMPLOYMENT. DTR agrees to employ Executive as its
President. Executive hereby accepts such employment. Executive
will serve DTR under the direction of its Board of Directors.
2. EXCLUSIVITY OF SERVICES. Executive will devote his
best efforts to the performance of his duties hereunder as a full
time employee of DTR. Executive will not, without the written
consent of the Board of Directors of DTR, engage in any activity
which conflicts or interferes with the performance of his duties
hereunder. Executive warrants that there exist no undisclosed
written or oral arrangements preventing his exclusive service to
DTR, and that he has not made any undisclosed commitment or
performed any undisclosed act, and will not make any commitment
or perform any act, in conflict with the exclusive nature of his
duties to DTR.
3. TERM. This Employment Agreement shall have a term
expiring on September 30, 2001, subject to earlier termination
under Section 8 hereof.
4. COMPENSATION. In consideration of Executive's
acceptance of continued employment and performance of duties
under this Employment Agreement, including, but not limited to
the provisions of Sections 5, 6 and 7, DTR shall pay to Executive
the following Compensation:
(a) Salary. Executive shall be paid a salary at a
gross annual rate of One Hundred Ten Thousand Dollars
($110,000.00) per annum. The Board of Directors of DTR
may, in its discretion, increase Executive's salary.
Salary payments hereunder shall be made in the same
manner and number as are the salary payments of other
senior executives of DTR and shall be subject to
required payroll tax withholding and other deductions
authorized by Executive.
(b) Bonuses. The Board of Directors of DTR may grant
Executive one or more bonuses in its discretion.
(c) Benefits. Executive shall, for each fiscal year
this Employment Agreement remains effective, be
entitled to paid vacations, health plans, pension
plans, stock purchase plans, profit sharing plan,
automobile allowance, and any other benefit plans, on
the same terms as such benefits are available generally
to other senior executives of DTR.
(d) Expense Reimbursement. DTR will pay or reimburse
Executive for all reasonable and necessary out-ofpocket
expenses incurred by him in the performance of his
duties under this Employment Agreement, subject to the
presentation of appropriate vouchers in accordance with
DTR' normal policies for expense verification.
5. COVENANT NOT TO COMPETE. In partial consideration of
the Compensation paid under this Employment Agreement, Executive
agrees that during the term of this Employment Agreement and for
a period of one (1) year following the termination of his
employment, whether voluntary or involuntary, he shall not,
either personally, or through an employer, firm, agent, servant,
employee, partner, shareholder, representative, affiliate, or any
other entity:
(a) solicit, do business with, or deliver products or
services which compete with the business, products or
services of DTR to any person or entity who was a
client or customer of DTR or was in any way associated
with DTR as of the date of Executive's termination or
at any time during the twelve (12) months immediately
preceding such termination, without the prior written
consent of DTR,
(b) employ or offer to employ any individual employed
by DTR or in any way associated with DTR within the
four (4) months preceding the termination of
Executive's employment; or request, advise or entice
any such individual to leave the employment of DTR or
disassociate from DTR, without the prior written
consent of DTR,
provided that any involuntary termination must be in compliance
with this Employment Agreement, including the provisions of
Section 8(b). Executive further agrees that in the event he
breaches any of the covenants contained in this Section 5,
irreparable injury will result to DTR, that DTR's remedy at law
will be inadequate, and that DTR will be entitled to an
injunction to restrain the continuing breach of this Employment
Agreement by Executive, his partners, agents, servants,
employees, or representatives, or any other persons or entities
acting for or with him. DTR shall, without limitation, be
entitled to damages, reasonable attorneys fees, and all other
costs and expenses incurred in connection with the enforcement of
this Section 5, in addition to any other rights or remedies which
DTR may have at law or in equity. DTR may waive the application
of this section for good cause.
6. NONDISCLOSURE OF INFORMATION.
(a) Executive agrees that any information related to
the business of DTR, or any of its clients, customers
or associated entities, and acquired by Executive
during his employment by DTR shall be regarded as
confidential and solely for the benefit of DTR.
Executive shall not, except as necessary in the
ordinary course of conducting business for DTR, use
such information himself or disclose such information
to any other person, directly or indirectly, either
during the term of this Employment Agreement or at any
time thereafter, without the prior written consent of
DTR.
(b) Executive shall not remove any records or
documents from the premises of DTR, or any of its
clients, customers or associated entities, in either
original, duplicate, or copied form, except as
necessary in the ordinary course of conducting business
for DTR. Executive shall immediately deliver to DTR,
upon termination of employment with DTR, or at any
other time upon DTR's request, any such records or
documents in Executive's possession or control.
7. INVENTIONS.
(a) "Inventions," as used in this Section 7, means any
discoveries, improvements and ideas (whether or not
they are in writing or reduced to practice) or works of
authorship (whether or not they can be patented or
copyrighted) that Executive makes, authors, or
conceives (either alone or with others) and that:
(i) concern directly DTR's business or DTR's
present or demonstrably anticipated future
research or development;
(ii) result from any work Executive performs
for DTR;
(iii) use DTR's equipment, supplies,
facilities, or trade secret information; or
(iv) Executive develops during the time
Executive is performing employment duties for DTR;
(b) Executive agrees that all Inventions made by
Executive during or within six months after the term of
this Agreement will be DTR's sole and exclusive
property. Executive will, with respect to any
Invention:
(i) keep current, accurate, and complete
records, which will belong to DTR;
(ii) promptly and fully disclose the
existence and describe the nature of the Invention
to DTR in writing (and without request);
(iii) assign (and Executive does hereby
assign) to DTR all of his rights to the Invention,
any applications he makes for patents or
copyrights in any country, and any patents or
copyrights granted to him in any country; and
(iv) acknowledge and deliver promptly to DTR
any written instruments and perform any other acts
necessary in DTR's opinion to preserve property
rights in the Invention against forfeiture,
abandonment or loss and to obtain and maintain
letters patent and/or copyrights on the Invention
and to vest the entire right and title to the
Invention in DTR.
The requirements of this subsection 7(b) do not apply to an
Invention for which no equipment, supplies, facility or trade
secret information of DTR was used and which was developed
entirely on Executive's own time, and (1) which does not relate
directly to DTR's business or to DTR's actual or demonstrably
anticipated research or development, or (2) which does not result
from any work Executive performed for DTR. Except as previously
disclosed to DTR in writing, Executive does not have, and will
not assert, any claims to or rights under any Inventions as
having been made, conceived, authored or acquired by Executive
prior to his employment by DTR. With respect to any obligations
performed by Executive under this subsection 7(b) following
termination of employment, DTR will pay Executive reasonable
hourly compensation (consistent with the last Base Salary) and
will pay or reimburse all reasonable out-of-pocket expenses.
8. TERMINATION.
(a) Executive's employment shall be terminated under
any of the following circumstances:
(i) Immediately, if Executive has breached
this Employment Agreement in any material respect,
and such breach is not cured by Executive, or is
not capable of being cured by Executive, within 30
days after written notice of such breach is
delivered to Executive;
(ii) Immediately, in the event of (1)
Executive's conviction of a felony or crime
involving moral turpitude or immoral conduct that
is reasonably likely to affect adversely the
business of DTR, or the goodwill associated
therewith, or (2) the bankruptcy of DTR;
(iii)Voluntary termination by Executive;
(iv) Upon the death or total disability of
Executive.
(b) In the event that Executive's employment is
voluntarily terminated pursuant to Section 8(a)(iii)
above, or is involuntarily terminated pursuant to
subsections (i)-(ii) of Section 8(a) above, Executive
shall not be entitled to any Compensation following
such termination.
(c) If Executive's employment is terminated pursuant
to Section 8(a)(iv), Executive and/or his surviving
spouse and dependents, if any, otherwise his estate,
shall receive the salary in the amount and manner set
forth in Section 4(a) hereof and the benefits set forth
in Section 4(c) (to the extent allowed by law) for a
twelve month period following the termination.
(d) In the event that Executive's employment is
terminated for any reason other than those set forth in
subsections (i)-(iv) of Section 8(a) above, Executive
shall receive the salary in the amount and manner set
forth in Section 4(a) hereof and the benefits set forth
in Section 4(c) hereof (to the extent allowed by law)
for a twelve month period following the termination.
DTR may satisfy this obligation by continuing to make
the regular payroll payments for the term rather than a
lump sum payment.
(e) Nothing in this Section 8 shall be construed to
affect Executive's entitlement to be paid for vacation,
salary or benefits earned and unpaid at the time his
employment is terminated.
(f) Notwithstanding any termination of this Employment
Agreement by any party and for any reason, in
consideration of his employment hereunder to the date
of such termination, Executive shall remain bound by
the provisions of this Employment Agreement which
specifically relate to periods, activities or
obligations upon or subsequent to the termination of
Executive's employment, except as specifically provided
otherwise in this Agreement.
9. CONSENT TO VENUE AND JURISDICTION. Executive consents
to venue and jurisdiction in the District Court of Hennepin
County, State of Minnesota, and in the United States District
Court for the District of Minnesota, and to service of process
under Minnesota law, in any action commenced to enforce this
Agreement.
10. FOODMASTER L.L.C. MANAGEMENT AGREEMENT OBLIGATIONS. As
long as the Amended and Restated Management Agreement between DTR
and FoodMaster International L.L. C. dated September 11, 1998, a
copy of which is attached as Exhibit A, is in effect, Executive
agrees to be bound by the Noncompetition obligations of Section
5(b) and the Shareholder Agreement obligations of Section 14
thereof, which sections are specifically incorporated herein by
reference.
11. ENTIRE AGREEMENT. This Agreement supersedes the
Employment Agreement dated September 30, 1996, and constitutes
the entire agreement between the parties. This Agreement may not
be amended or modified except by mutual written agreement of DTR
and Executive.
12. SUCCESSORS AND ASSIGNS. Subject to the provisions
herein, the benefits and obligations of this Agreement shall be
binding upon and inure to the successors and assigns of ▇▇▇.
▇▇. GOVERNING LAW. This Employment Agreement shall be
construed under and governed by the laws of the State of
Minnesota.
14. NOTICE. Any notice or other communications required or
permitted to be given to the parties hereto shall be deemed to
have been given on the third (3rd) day following deposit in the
United States mail, postage prepaid, and addressed to the
appropriate party at the address of such party as may be, from
time to time, provided in writing to the other.
15. SEVERABILITY. If any provisions of this Employment
Agreement shall, for any reason, be adjudged to be void, invalid
or unenforceable by a court of law, the remainder of this
Employment Agreement shall nonetheless continue and remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement.
DEVELOPED TECHNOLOGY RESOURCE, INC.
Dated: _____________________ By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its Director
Dated: _____________________ By /s/ ▇▇▇▇ ▇. ▇▇▇▇
"Executive"