MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT is entered into effective as of January 1,
2000 by and between NORTHSTAR COMPUTER FORMS, INC., a Minnesota corporation
(the "Company"), and DON DEARBORN ("Dearborn").
WITNESSETH:
WHEREAS, Dearborn is a key member of the management of the Company and
has heretofore devoted substantial skill and effort to the affairs of the
Company, and the Board of Directors of the Company (the "Board") desires to
recognize the significant personal contribution that Dearborn has made to
further the best interests of the Company and its shareholders;
WHEREAS, it is desirable and in the best interests of the Company and
its shareholders to continue to obtain the benefits of Dearborn's continued
services and attention to the affairs of the Company;
WHEREAS, Dearborn and the Company are parties to an Employment
Agreement dated as of _______________, 19___ (the "Existing Employment
Agreement"), and the parties desire that this Management Agreement terminate
the Employment Agreement and provide for the terms and conditions of
Dearborn's continued employment;
WHEREAS, it is desirable and in the best interests of the Company and
its shareholders to provide inducement for Dearborn (i) to remain in the
service of the Company in the event of any proposed or anticipated change in
control of the Company and (ii) to remain in the service of the Company in
order to facilitate an orderly transition in the event of a change in control
of the Company; and
WHEREAS, the parties acknowledge that the terms and provisions of this
Agreement, including the severance package, stock options and change in
control payments contained herein, provide separate and valuable
consideration for the Non-Compete Covenant contained herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the Company and Dearborn agree as
follows:
1. EMPLOYMENT. Dearborn agrees to continue to serve as a full-time
employee of the Company in the capacity of Vice President. Dearborn agrees
to faithfully and diligently perform the acts and duties of his office and
devote his best efforts on a full-time basis. Dearborn shall also perform
such other duties as are consistent with his position, as are reasonably
assigned to him by the President and/or Board of Directors of the Company
(the "Board").
1
2. EMPLOYMENT PERIOD. The term of Dearborn's employment under this
Agreement will begin immediately and end on December 31, 2004, unless
extended by mutual agreement or sooner terminated by one of the parties
pursuant to the provisions of Section 4 hereof (the "Employment Period").
3. COMPENSATION AND RELATED MATTERS. The Company shall pay Dearborn
compensation and benefits as follows:
(a) BASE COMPENSATION. During the Employment Period, the Company shall
pay to Dearborn an annual base salary of $112,000. Dearborn's salary may
be further reviewed and adjusted periodically (upward, but not downward) as
determined by the Compensation Committee of the Board (the "Compensation
Committee") and adopted by the Board.
(b) BONUS. Dearborn shall also be entitled to a bonus from time to time
in the discretion of the Compensation Committee and/or the Board.
(c) STOCK OPTIONS. Dearborn shall also be entitled to receive stock
options (the "Options") pursuant to the Company's 1994 Employees' Incentive
Stock Option Plan (the "Plan") or otherwise in the discretion of the
Compensation Committee and/or the Board.
(d) PARTICIPATION IN BENEFITS. During the Employment Period, Dearborn
shall be entitled to participate in employee benefits offered generally by
the Company to its employees, to the extent that Dearborn's position,
tenure, salary, health, and other qualifications make him eligible to
participate. Dearborn's participation in such benefits shall be subject to
the terms of the applicable plans, as the same may be amended from time to
time. Following the termination of his employment, Dearborn (or any of his
dependents participating in such coverage) shall have the right to purchase
health care coverage through the Company's health benefit plan as a retiree
(or dependent of a retiree) at a rate equal to the average per employee
cost incurred by the Company until Dearborn (or such dependent) reaches
Medicare eligibility.
(e) EXPENSES. During the Employment Period, Dearborn shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by
Dearborn in performing services hereunder; provided, however, that Dearborn
complies with the Company's policies and procedures established from time
to time to document such expenses.
(f) VACATION AND OTHER BENEFITS. Dearborn shall be entitled to such paid
vacation and other benefits as shall be in effect from time to time for
senior executive officers of the Company.
4. TERMINATION AND COMPENSATION DUE ON TERMINATION. Dearborn's
employment hereunder may be terminated subject to the following provisions and
obligations:
(a) DEATH OR DISABILITY. Dearborn's employment hereunder shall terminate
upon his death, or in the event that Dearborn becomes disabled by reason of
a medical condition
2
(physical or non-physical) pursuant to which he cannot timely perform the
material duties of his position with the Company (such determination to be
based on Dearborn's qualifying for disability benefits under his long-term
disability insurance policy with the Company), and no further payment of
salary, any benefits or other payment in connection with Dearborn's
employment shall be due from the Company to Dearborn or Dearborn's estate
under this Agreement thereafter, except for salary and bonus (if any)
accrued, and Options vested through the date of death or disability.
(b) CAUSE. The Company may terminate Dearborn's employment hereunder for
"Cause," which shall mean (i) fraud, dishonesty, gross negligence, or
willful malfeasance by Dearborn in connection with the performance of his
duties hereunder, (ii) conviction of Dearborn of a felony, (iii)
insubordination or other substantial failure, refusal or negligence by
Dearborn in fulfilling his duties and obligations hereunder, which breach
or failure Dearborn fails to remedy within ten (10) days after written
demand from the Board, or (iv) violation of the terms and conditions of
this Agreement, including without limitation, the Non-Compete Covenant
provided in Section 8 hereof. In the event that Dearborn's employment is
terminated hereunder for Cause, the Company shall have no further
obligations to Dearborn in connection with Dearborn's employment except for
salary accrued through the date of termination.
(c) VOLUNTARY TERMINATION. Until Dearborn reaches the age of 63, upon any
voluntary termination of employment by Dearborn, the Company shall pay
Dearborn a severance payment (the "Voluntary Termination Severance") equal
to one-half of Dearborn's base salary for the last completed calendar year
prior to the date of termination plus any bonus paid for such year and
shall have no further obligations to Dearborn except as provided by law.
After Dearborn reaches the age of 63, the Voluntary Termination Severance
shall end.
(d) WITHOUT CAUSE. The Company may terminate Dearborn's employment
hereunder at any time without "Cause" (as defined above), for any reason or
no reason. Upon any such termination of Dearborn, Dearborn shall be
entitled to receive a severance payment (the "Involuntary Termination
Severance") equal to one times Dearborn's base salary for the last
completed calendar year prior to the date of termination plus any bonus
paid for such year, and he shall immediately vest in all of the unvested
Options. The amount of the Involuntary Termination Severance shall remain
in effect until Dearborn reaches the age of 64; once Dearborn reaches the
age of 64, the amount of the Involuntary Termination Severance shall be
reduced to the amount of the Voluntary Termination Severance; and upon
Dearborn reaching the age of 65, he shall no longer be entitled to any
Involuntary Termination Severance.
(e) CHANGE IN CONTROL. The Company or its successor may terminate
Dearborn's employment hereunder or Dearborn may terminate his employment
with the Company under circumstances which would constitute a "Constructive
Involuntary Termination" (as defined in Section 5.1 below), in the event of
a change in control of the Company, in which case, in addition to and not
by way of limitation of the provisions contained in this
3
Section 4, but subject to the provisions of Section 5.2(f) below relating
to Parachute Payments, the provisions of Section 5 shall control.
5. CHANGE IN CONTROL. For a period commencing on the date of this
Agreement and ending on the later of (i) December 31, 2001, or (ii) if the
Commencement Date (as defined in Section 5.3(c)) occurs on or prior to
December 31, 2001 (or prior to the end of any extension of such date then in
effect as provided for in clause (i) hereof, which period may be
automatically extended for one year intervals from year to year thereafter by
agreement of Dearborn and the Board), the second anniversary of the
Commencement Date, (hereafter, the "Change in Control Term"), the provisions
of this Section 5 shall control in the event an Event (as herein defined)
shall occur during the Change in Control Term.
5.1 EVENTS. For purposes of this Agreement an "Event" shall be deemed to
have occurred if any of the following occur:
(a) Any "person" (as defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended, or any successor statute thereto (the "Exchange
Act")) acquires or becomes a "beneficial owner" (as defined in Rule 13d-3
or any successor rule under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities entitled to vote
generally in the election of directors ("Voting Securities") or 30% or more
of the outstanding shares of common stock of the Company ("Common Stock"),
provided, however, that the following shall not constitute an Event
pursuant to this Section 5.1(a): (i) any acquisition of beneficial
ownership by the Company or a subsidiary of the Company; (ii) any
acquisition of beneficial ownership by any employee benefit plan (or
related trust) sponsored or maintained by the Company or one or more of its
subsidiaries; (iii) any acquisition of beneficial ownership by any
corporation (including without limitation an acquisition in a transaction
of the nature described in Section 5.1(c)) with respect to which,
immediately following such acquisition, more than 70%, respectively, of (x)
the combined voting power of the Company's then outstanding Voting
Securities and (y) the Common Stock is then beneficially owned, directly or
indirectly, by all or substantially all of the persons who beneficially
owned the Voting Securities and Common Stock, respectively, of the Company
immediately prior to such acquisition in substantially the same proportions
as their ownership of such Voting Securities and Common Stock, as the case
may be, immediately prior to such acquisition.
(b) Continuing Directors shall not constitute a majority of the members of
the Board. For purposes of this Section 5.1(b), "Continuing Directors"
shall mean: (i) individuals who, on the date hereof, are directors of the
Company, (ii) individuals elected as directors of the Company subsequent to
the date hereof for whose election proxies shall have been solicited by the
Board, or (iii) any individual elected or appointed by the Board to fill
vacancies on the Board caused by death or resignation (but not by removal)
or to fill newly-created directorships, provided that a "Continuing
Director" shall not include an individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the threatened election
4
or removal of directors (or other actual or threatened solicitation of
proxies or consents) by or on behalf of any person other than the Board.
(c) Consummation of a reorganization, merger or consolidation of the
Company (other than a merger or consolidation with a subsidiary of the
Company) or a statutory exchange of outstanding Voting Securities or Common
Stock, unless immediately following such reorganization, merger,
consolidation or exchange, all or substantially all of the persons who were
the beneficial owners, respectively, of Voting Securities and Common Stock
immediately prior to such reorganization, merger, consolidation or exchange
beneficially own, directly or indirectly, more than 70% of, respectively,
(i) the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors and (ii) the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger, consolidation or exchange in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger, consolidation or exchange, of the Voting Securities and Common
Stock, as the case may be.
(d) (i) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company (in
one or a series of transactions), other than to a corporation with respect
to which, immediately following such sale or other disposition, more than
70% of, respectively, (x) the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors and (y) the then outstanding shares of common stock
of such corporation is then beneficially owned, directly or indirectly, by
all or substantially all of the persons who were the beneficial owners,
respectively, of the Voting Securities and Common Stock immediately prior
to such sale or other disposition in substantially the same proportions as
their ownership, immediately prior to such sale or other disposition, of
the Voting Securities and Common Stock, as the case may be.
(e) The Company enters into a letter of intent, an agreement in principle
or a definitive agreement relating to an Event described in Section 5.1(a),
5.1(b), 5.1(c) or 5.1(d) hereof that ultimately results in such an Event,
or a tender or exchange offer or proxy contest is commenced which
ultimately results in an Event described in Section 5.1(a) or 5.1(b)
hereof.
(f) There shall be an involuntary termination or Constructive Involuntary
Termination (as defined in Section 5.2(d) hereof) of employment of
Dearborn, and Dearborn reasonably demonstrates that such event (i) was
requested by a party other than the Board that had previously taken other
steps reasonably calculated to result in an Event described in Section
5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof and which ultimately results in an
Event described in Section 5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof, or (ii)
otherwise arose in connection with or in anticipation of an Event described
in Section 5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof that ultimately occurs.
5
Each of the foregoing Events (or combination thereof) is referred to herein
as a "Sale Transaction," and the aggregate amount received by either the
Company or its shareholders in the Sale Transaction is referred to herein as
the "Sale Transaction Price."
Notwithstanding anything stated in this Section 5.1, an Event shall not
be deemed to occur with respect to Dearborn if (x) the acquisition of
beneficial ownership of the 30% or greater interest referred to in Section
5.1(a) is by Dearborn or by a group, acting in concert, organized by present
management of the Company and including Dearborn or (y) a majority of the
then combined voting power of the then outstanding voting securities (or
voting equity interests) of the surviving corporation or of any corporation
(or other entity) acquiring all or substantially all of the assets of the
Company shall, immediately after a reorganization, merger, consolidation,
statutory share exchange or disposition of assets referred to in Section
5.1(c) or 5.1(d), is beneficially owned, directly or indirectly, by Dearborn
or by a group, acting in concert, organized by present management of the
Company and including Dearborn.
5.2 CHANGE IN CONTROL PAYMENTS AND BENEFITS. If any Event shall occur
during the Change in Control Term, then Dearborn shall be entitled to receive
from the Company or its successor (which term as used herein shall include
any person acquiring all or substantially all of the assets of the Company)
cash payments and other benefits on the following basis (unless Dearborn's
employment by the Company is terminated voluntarily or involuntarily prior to
the occurrence of the earliest Event to occur (the "First Event"), in which
case Dearborn shall be entitled to no payment or benefits under this Section
5, but still may be entitled to payments and benefits under Section 4 hereof):
(a) A cash payment payable in two installments (the "Transaction
Completion Bonus") equal to Dearborn's proportionate share (as described
below) of a fund to be established by the Company or its successor equal to
1% of the Sale Transaction Price (the "Fund"), payable one half at closing
or completion of an Event described in Section 5.1(a), 5.1(b), 5.1(c) or
5.1(d), and the remainder on the one year anniversary of such date (the
"Transaction Anniversary Date"), provided Dearborn's employment with the
Company or its successor is either (i) still in effect on the Transaction
Anniversary Date or (ii) not in effect on the Transaction Anniversary Date
as a result of a Constructive Involuntary Termination (as defined in
Section 5.1 hereof) or a termination by the Company or its successor for a
reason other than for Cause (as defined in Section 4(b) hereof).
Dearborn's proportionate share of the Fund shall be calculated as follows:
multiply the amount of the Fund by a fraction, the numerator of which is
Dearborn's 1999 base salary and the denominator of which is the aggregate
1999 base salary paid by the Company to its four executive officers other
than its Chief Executive Officer.
(b) If at the time of, or at any time after, the occurrence of the First
Event and prior to the end of the Transition Period (as defined in Section
5.3(c)), the employment of Dearborn with the Company is voluntarily or
involuntarily terminated for any reason (unless such termination is a
voluntary termination by Dearborn other than a Constructive Involuntary
Termination or is on account of the death or Disability of Dearborn or is a
termination by the Company for Cause), Dearborn (or Dearborn's
6
legal representative, as the case may be), subject to the limitations set
forth in Section 5.2(f), shall be entitled to receive from the Company or
its successor, upon such termination of employment with the Company or its
successor, a cash payment in an amount equal to a multiple of Dearborn's
"Average Annual Compensation" (as defined in the last sentence of this
paragraph) ending before the First Event (other than an Event described in
Section 5(e) or 5(f) unless Dearborn is terminated prior to the occurrence
of an Event described in Section 5(a), 5(b), 5(c) or 5(d)), as described in
the next sentence. If Dearborn's employment with the Company or its
successor is terminated at any time up to and including the Transaction
Anniversary Date, Dearborn shall be entitled to receive 1.50 times the
Average Annual Compensation; if terminated within two calendar months
thereafter, 1.42 times the Average Annual Compensation; if terminated
within two calendar months thereafter, 1.33 times the Average Annual
Compensation; if terminated within two calendar months thereafter, 1.25
times the Average Annual Compensation; if terminated within two calendar
months thereafter, 1.17 times the Average Annual Compensation; if
terminated within two calendar months thereafter, 1.08 times the Average
Annual Compensation; and, if terminated at any time after such date until
the end of the Transition Period, 1.00 times the Average Annual
Compensation. If Dearborn is terminated at any time after the conclusion
of the Transition Period, Dearborn shall not be entitled to any
compensation under this provision. For purposes of this Agreement,
"Average Annual Compensation" shall mean Dearborn's average annual
compensation from the Company included in his gross income for federal
income tax purposes for the period consisting of the five most recently
completed calendar years ending before the date of termination.
(c) The payments provided for in this Section 5.2 shall be in addition to
any other remuneration otherwise payable to Dearborn on account of
employment by the Company or one or more of its subsidiaries or its
successor (including any amounts received prior to such termination of
employment for personal services rendered after the occurrence of the First
Event) but shall be the aggregate amount payable to Dearborn under this
Agreement shall be subject to the limitations set forth in Section 5.2(f)
below relating to Parachute Payments.
(d) In the event that at any time from the date of the First Event until
the end of the Transition Period,
(i) Dearborn shall not be given substantially equivalent or greater
title, duties, responsibilities and authority or substantially
equivalent or greater salary and other remuneration and fringe
benefits (including paid vacation), in each case as compared
with Dearborn's status immediately prior to the First Event
other than for Cause or on account of Disability,
(ii) the Company shall have failed to obtain assumption of this
Agreement by any successor as contemplated by Section 10(b)
hereof,
7
(iii) the Company shall require Dearborn to relocate to any place
other than a location within twenty-five miles of the location
at which Dearborn performed his duties immediately prior to the
First Event, or
(iv) the Company shall require that Dearborn travel on Company
business to a substantially greater extent than required
immediately prior to the First Event,
a termination of employment with the Company by Dearborn thereafter shall
constitute a "Constructive Involuntary Termination."
(e) Dearborn shall not be required to mitigate the amount of any payment
or other benefit provided for in this Agreement by seeking other employment
or otherwise, nor (except as specifically provided in Section 5.2(f) below)
shall the amount of any payment or other benefit provided for in this
Agreement be reduced by any compensation earned by Dearborn as the result
of employment by another employer after termination, or otherwise.
(f) "PARACHUTE PAYMENTS". Notwithstanding any provision to the contrary
contained herein except the last sentence of this Section 5.2(f), if the
lump sum cash payment due and the other benefits to which Dearborn shall
become entitled under this Agreement, either alone or together with other
payments in the nature of compensation to Dearborn which are contingent on
a change in the ownership or effective control of the Company or in the
ownership of a substantial portion of the assets of the Company (a "Change
in Control Arrangement") or otherwise, would constitute a "parachute
payment" as defined in Section 28OG of the Internal Revenue Code of 1986
(the "Code") or any successor provision thereto, such lump sum payment
and/or such other benefits and payments shall be reduced (but not below
zero) to the largest aggregate amount as will result in no portion thereof
being subject to the excise tax imposed under Section 4999 of the Code (or
any successor provision thereto) or being non-deductible to the Company for
federal income tax purposes pursuant to Section 28OG of the Code (or any
successor provision thereto). Dearborn in good faith shall determine the
amount of any reduction to be made pursuant to this Section 5.2(f) and
shall select from among the foregoing benefits and payments those which
shall be reduced. No modification of, or successor provision to, Section
28OG or Section 4999 subsequent to the date of this Agreement shall,
however, reduce the benefits to which Dearborn would be entitled under this
Agreement in the absence of this Section 5.2(f) to a greater extent than
they would have been reduced if Section 28OG and Section 4999 had not been
modified or superseded subsequent to the date of this Agreement,
notwithstanding anything to the contrary provided in the first sentence of
this Section 5.2(f).
5.3 DEFINITION OF CERTAIN ADDITIONAL TERMS.
(a) As used herein, other than in Section 5(a) hereof, the term "person"
shall mean an individual, partnership, corporation, estate, trust or other
entity.
8
(b) As used herein, the term "Disability" shall mean a medical condition
(physical or non-physical) pursuant to which Dearborn cannot timely perform
the material duties of his position with the Company (such determination to
be based on Dearborn's qualifying for disability benefits under his
long-term disability insurance policy with the Company).
(c) As used herein, the term "Transition Period" shall mean the 2-year
period commencing on the date of the earliest to occur of an Event
described in Section 5.1(a), 5.1(b), 5.1(c) or 5.1(d) hereof (the
"Commencement Date"), and ending on the second anniversary of the
Commencement Date.
6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Dearborn agrees that he
will not use or disclose, or permit others to use or disclose (other than
other employees or representatives of the Company), any trade secrets,
confidential information, data or records relating to the business,
techniques, operations and condition (financial or otherwise) of the Company
which is not generally known or available through other lawful sources.
7. PROPERTY RIGHTS. Subject to the last sentence in this Section, the
Company shall acquire exclusive right, title, and interest to all inventions,
discoveries, improvements, designs, ideas, know-how, technology and the like
developed, conceived, or invented by Dearborn, in whole or in part, whether
written or in some other form and whether or not patentable or eligible for
protection under any copyright law. Without limiting the generality of the
foregoing, Dearborn hereby assigns to the Company (i) all rights to any
inventions, or to improvements, and all rights to apply for United States
and/or foreign letters of patent granted upon such inventions; and (ii) any
copyrights Dearborn may have in materials created by Dearborn or otherwise
generated during the period in which Dearborn is performing services for the
Company, and the Company shall have the sole right to apply for and obtain
copyright protection for any materials for which such protection can be
obtained and to obtain such copyright renewals. Despite any of the
foregoing, nothing in this Section 7 shall apply to an invention for which no
equipment, supplies, facility or trade secret information of the Company is
used and which is developed entirely on Dearborn's own time, and (i) does not
relate (a) directly to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development, or (ii) which
does not result from any work performed by Dearborn for the Company.
8. NON-COMPETE COVENANT. During the Employment Period and for a
period of two years after the termination of employment for any reason,
Dearborn shall not (i) directly or indirectly, whether as a principal, owner,
agent or in any other capacity whatsoever, engage in the business of
manufacturing, marketing or designing internal bank forms, negotiable
documents and custom business forms anywhere within the United States, (ii)
solicit for employment or employ any employee or independent contractor of
the Company, or (iii) contact any present or contemplated customers of the
Company regarding the business of the Company.
9. REMEDIES FOR BREACH; DISPUTE RESOLUTION.
(a) REMEDIES FOR BREACH. Dearborn acknowledges that he has carefully read
and considered all of the terms and conditions of this Agreement and has
had the opportunity to consult counsel regarding the negotiation and
execution hereof. Dearborn further
9
acknowledges that money damages would not be a measurable or adequate
remedy for Dearborn's breach of any of the covenants contained in this
Agreement, and, accordingly, in addition to and without limiting any other
remedy available to the Company in the event of such a breach, Dearborn
agrees, notwithstanding the provisions of Section 9(b) hereof, to submit
to the equitable jurisdiction of any court of competent personal and
subject matter jurisdiction in connection with any action to enjoin the
Dearborn from violating any such covenants.
(b) PROCEDURE FOR ARBITRATION. Except as provided in Section 9(a) above,
any dispute arising out of or relating to this Agreement or the alleged
breach of it, or the making of this Agreement, including claims of fraud in
the inducement, or any dispute arising from or related in any way to
Dearborn's employment, including any statutory or tort claims, which has
not been settled through negotiation within a period of thirty (30) days
after the date on which either party shall first have notified the other
party in writing of the existence of a dispute, shall be settled by final
and binding arbitration pursuant to the provisions of this Agreement and
under the then applicable arbitration rules of the American Arbitration
Association ("AAA"), unless such rules are inconsistent with the provisions
of this Agreement. Any such arbitration shall be conducted by: (a) neutral
arbitrator appointed by mutual agreement of the parties; or (b) failing
such agreement, in accordance with said rules. An arbitrator's award may
be enforced in any court of competent jurisdiction. Each party shall be
permitted reasonable discovery, including the production of relevant
documents by the other party, the exchange of witness lists, and a limited
number of depositions, including depositions of any expert who will testify
at the arbitration. The summary judgment procedure applicable in Hennepin
County, Minnesota, District Court, shall be available and apply to any
arbitration conducted pursuant to this Agreement. Subject to the
provisions of Section 8(c) below, the arbitrator shall have the authority
to award to the prevailing party any remedy or relief that a court of the
State of Minnesota could order or grant, including costs and attorneys'
fees. Unless otherwise agreed by the parties, the place of any arbitration
proceeding shall be Minneapolis, Minnesota.
(c) RECOVERY OF LITIGATION COSTS. Notwithstanding the provisions of
Section 8(b) above, in the event that Dearborn is found to have breached
any of the terms and conditions of this Agreement, Dearborn hereby agrees
to pay all costs and expenses incurred by Northstar in enforcing the
provisions of this Agreement found to have been breached by Dearborn,
including Northstar's attorney's fees.
10. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the benefit of
the successors, legal representatives and assigns of the parties hereto;
provided, however, that Dearborn shall not have any right to assign,
pledge or otherwise dispose of or transfer any interest in this Agreement
or any payments hereunder, whether directly or indirectly or in whole or in
part, without the written consent of the Company or its successor.
10
(b) The Company will require any successor (whether direct or indirect by
purchase of a majority of the outstanding voting stock of the Company or
all or substantially all of the assets of the Company, or by merger,
consolidation or otherwise), by agreement in form and substance
satisfactory to Dearborn, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. Failure
of the Company to obtain such agreement prior to the effectiveness of any
such succession (other than in the case of a merger or consolidation) shall
be a breach of this Agreement and shall entitle Dearborn to compensation
from the Company in the same amount and on the same terms as Dearborn would
be entitled hereunder if Dearborn terminated his employment on account of a
Constructive Involuntary Termination, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the date of termination. As used in this
Agreement "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which is required to
execute and deliver the agreement provided for in this Section 10(b) or
which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
11. BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of
and be enforceable by the Company, it's successors, assigns and affiliates.
12. WAIVER. The failure of the Company to insist on the strict
performance of any provision of this Agreement or to exercise any right,
power or remedy upon a breach by Dearborn shall not constitute a waiver of
that or any other provision of this Agreement. A waiver on any one occasion
shall not be deemed to be a waiver for subsequent occasions.
13. SURVIVAL AND SEVERABILITY. The terms and conditions of this
Agreement shall survive the termination of Dearborn's employment with the
Company to the full extent necessary for their enforcement and for the
protection of the Company, it's successors, assigns and affiliates. If for
any reason any portion of any provision of this Agreement is declared
invalid, void or unenforceable by a court of competent jurisdiction, the
validity and binding effect of any remaining provisions of this Agreement
shall remain in full force and effect to the fullest extent possible as if
this Agreement had been executed with the invalid, void or unenforceable
portion or provision eliminated. In the event that any provision of this
Agreement relating to time periods and/or areas of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum time
periods or areas such court deems reasonable and enforceable, said time
periods and/or areas of restriction shall be deemed to become and thereafter
be the maximum time periods and/or areas which such court deems reasonable
and enforceable.
14. PRIOR AGREEMENTS. This Agreement contains the entire agreement of
the parties relating to the employment of Dearborn by the Company and the
other matters discussed herein and supercedes all prior promises, contracts,
agreements, and understandings of any kind, whether express or implied, oral
or written, with respect to such subject matter (including, without
limitation, the Existing Employment Agreement, which is hereby terminated and
of no further force or effect) and the parties hereto have made no
agreements,
11
representations, or warranties relating to the subject matter of this
Agreement which are not set forth herein.
15. WITHHOLDING TAXES. The Company may take such action as it deems
appropriate to ensure that all applicable federal, state, city, and other
payroll, withholding, income, or other taxes arising from any compensation,
benefits, or any other payments made pursuant to this Agreement, or any other
contract, agreement, or understanding which relates, in whole or in part, to
Dearborn's employment with the Company, are withheld or collected from
Dearborn
16. NOTICES. All notices, requests and demands given to or made
pursuant hereto shall be in writing and shall be delivered or mailed to any
such party at its address which:
(a) In the case of the Company shall be:
Northstar Computer Forms, Inc.
7130 Northland Circle North
Brooklyn Park, MN 55428
(b) In the case of Dearborn shall be:
1336 M Avenue
Nevada, IA 50201
Either party may, by notice hereunder, designate a changed address. Any notice,
if mailed properly addressed, postage prepaid, registered or certified mail,
shall be deemed to have been given on the registered date or that date stamped
on the certified mail receipt.
17. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Minnesota.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NORTHSTAR COMPUTER FORMS, INC.
By
-----------------------------------------
Its
----------------------------------------
-------------------------------------------
Don Dearborn
13