EXHIBIT 10.25
EMPLOYMENT AGREEMENT
THIS AGREEMENT (along with all Exhibits attached hereto hereinafter
referred to as the "Agreement") made effective as of November 13, 2000 by and
between SAC Technologies, Inc., a Minnesota corporation with its principal place
of business at 1285 Corporate Center Drive, Suite 175, Eagan, MN 55121 (the
"Company") and Jeffry R. Brown, residing at 5710 Northwood Ridge, Bloomington,
MN 55437 (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee
as President in accordance with the provisions of this Agreement; and
WHEREAS, the Employee desires and is willing to be employed by the
Company in accordance herewith.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Employment Term. This Agreement shall remain in force and effect for
a term commencing on the Effective Date hereof and expiring on the second (2nd)
anniversary hereof (the "Initial Term"), or until the employment relationship is
terminated pursuant to Section 4 hereof. Upon the expiration of the Initial
Term, this Agreement will be renewed automatically for successive one year
periods (each, a "Renewal Term"), unless sooner terminated in accordance with
the provisions of Section 4 or unless Company gives written notice of
non-renewal at least three (3) months prior to the date on which the Employee's
employment would otherwise end.
2. Duties; Exclusive Services and Best Efforts.
(a) Duties. Employee shall hold the position of President. As
President, the Employee will have the responsibility for all marketing, sales
and business development activities for the Company including but not limited to
strategic planning, product roll out, beta test development, revenue forecasting
and maintaining Company directed pricing structures as well as any duties
assigned to the Employee as directed by the Company's CEO or Board of Directors.
Employee working with the CEO will participate in negotiating contracts and
strategic alliances with outside vendors and prospective clients.
(b) Exclusive Services and Best Efforts. The Employee agrees
to devote his best efforts, energies and skill to the faithful, competent and
diligent discharge of the duties and responsibilities attributable to his
position, and to this end, will devote his fulltime
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attention to the business and affairs of the Company. The Employee also agrees
that he shall not take personal advantage of any business opportunities that
arise during his employment that may benefit the Company. All material facts
regarding such opportunities must be promptly reported to the Company's Board of
Directors for its consideration. In addition, the Company acknowledges and
agrees that the Employee shall be permitted to engage in and pursue such
contemporaneous activities and interests as the Employee may desire, for
personal profit or otherwise, provided such activities do not interfere with the
Employee's performance of his duties and obligations hereunder.
3. Compensation. On and after the commencement of Employee's
employment, the Employee shall receive, for all services rendered to the Company
hereunder, the following:
(a) Base Salary. The Employee shall be paid a base annual
salary equal to One Hundred Forty Four Thousand Dollars ($144,000) paid at the
rate of $12,000 per month. The Employee's annual base salary shall be payable in
equal installments in accordance with the Company's general salary payment
policies but no less frequently than monthly. Employee's Base Salary may be
increased annually, or at such other intervals, as the Board of Directors or
Compensation Committee thereof shall determine from time to time.
(b) Discretionary Bonus. In addition to Base Salary, a
"Discretionary Bonus" may be awarded to Executive on the basis of merit
performance on an annual basis in the sole discretion of the Board of Directors
or Compensation Committee thereof; provided, however, that the failure of the
Company to provide any Discretionary Bonus shall not give rise to any claim
against the Company. The Discretionary Bonus shall not exceed fifty (50%)
percent of the Employee's Base Salary. The amount, if any, and timing of any
Discretionary Bonus, shall be determined by the Company in its sole discretion.
(c) Incentive Compensation. The Employee may be eligible for
awards from the Company's incentive compensation plans, including without
limitation, any stock option plans, applicable to high level executives of the
Company, in accordance with the terms thereof and on a basis commensurate with
his position and responsibilities. Any such compensation shall be determined by
the Company in its sole discretion. Nothing herein shall effect any rights or
obligations of the Employee or the Company created pursuant to any stock option
plan or stock option agreement between the parties hereto.
(d) Signing Bonus. Employee will receive a signing bonus of
twenty four thousand dollars ($24,000) to be paid in four (4) monthly
installments of six thousand ($6,000) dollars per month.
(e) Stock Options. Employee shall be granted (i) subject to
the provisions of the Company's 1999 Stock Option Plan attached hereto as
Exhibit A, a stock option to purchase 300,000 shares of the Company's Common
Stock; and (ii) subject to the terms of a stock option agreement to be entered
into by the Company and Employee in substantially the form attached hereto as
Exhibit B, a stock option to purchase 280,000 shares of the Company's Common
Stock.
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One hundred eighty thousand (180,000) options shall vest on execution of this
Agreement; and unless otherwise adjusted pursuant to Section 4(e), four hundred
thousand (400,000) options shall vest in equal monthly installments over a
twenty four (24) month period.
(f) Benefits Plans. The Employee shall be eligible to
participate in any and all employee welfare and health benefit plans (including,
but not limited to, life insurance, health, medical and dental plans) and other
employee benefit plans, including but not limited to qualified pension plans,
which may be established by the Company from time to time for the benefit of
other Company employees of comparable status. In addition, the Company will
provide Employee with an annual allowance of $6,500 to be used according to
Employee's directions for the acquisition of a disability policy for Employee
and a term life insurance policy for the benefit of Employee and his designated
beneficiary. The Employee shall be required to comply with the conditions
attendant to coverage by such preceding plans and policies and shall comply with
and be eligible for benefits only in accordance with the terms and conditions of
such plans as they may be amended from time to time. Nothing in this Section
shall be construed as requiring the Company to establish or continue any
particular benefit plan in discharge of its obligations under this Agreement.
(g) Vacation. The Employee shall be eligible for four (4)
weeks of paid vacation each year of his employment hereunder. The Employee shall
be permitted to carry over and accrue unused vacation time for a period of up to
two years. Except as required by applicable law, in no event shall the Employee
be entitled to receive any cash compensation in lieu of unused vacation time.
(h) Expenses. Subject to and in accordance with the Company's
policies and procedures, and, upon presentation of itemized accounts, the
Employee shall be reimbursed by the Company for reasonable and necessary
business-related expenses, which expenses are incurred by the Employee on behalf
of the Company.
(i) Deductions from Salary and Benefits. The Company will
withhold from any salary or benefits payable to the Employee all federal, state,
local, and other taxes and other amounts as required by law, rule or regulation.
4. Termination. This Agreement may be terminated by either the Employee
or the Company at any time, subject only to the provisions of this Section 4.
(a) Voluntary Termination. If Employee terminates his own
employment, the Company shall be released from any and all further obligations
under this Agreement, except that the Company shall be obligated to pay Employee
his salary and benefits owing to Employee through the effective date of
termination. Employee shall also be entitled to any reimbursement owed in
accordance with Section 3(h). Employee's obligations under Sections 5, 7, 8 and
9 hereof and shall survive the termination of Employee's employment, and
Employee shall remain bound thereby.
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(b) Death. This Agreement shall terminate on the date of the
Employee's death, in which event salary, benefits, and reimbursable expenses
owing to the Employee through the date of the Employee's death shall be paid to
his estate.
(c) Disability. If, during the term of this Agreement, in the
opinion of the Company, the Employee, because of physical or mental illness or
incapacity or disability, shall become unable to perform, with or without
reasonable accommodation, substantially all of the duties and services required
of him under this Agreement for a period one hundred eighty (180) days during
any twelve-month period, the Company may, upon at least ten (10) days prior
written notice given at any time after the expiration of such one hundred eighty
(180) day period, notify the Employee of its intention to terminate this
Agreement as of the date set forth in the notice. In case of such termination,
the Employee shall be entitled to receive salary, benefits, and reimbursable
expenses owing to the Employee through the date of termination. The Company
shall have no further obligation or liability to the Employee. The Employee's
obligations under Sections 5, 7 8 and 9 hereof shall survive the termination of
Employee's employment, and employee shall remain bound thereby.
(d) Termination by Employer for Cause. This Agreement may be
terminated by the Company for "Cause" at any time. Upon such termination for
"Cause", the Company shall be released from any and all further obligations
under this Agreement, except that the Company shall be obligated to pay the
Employee his salary and benefits owing to the Employee through the effective
date of such termination. The Employee shall also be entitled to any
reimbursement owed in accordance with Section 3(h). The Employee's obligations
under Sections 5, 7, 8 and 9 hereof shall survive the termination of Employee's
employment, and employee shall remain bound thereby.
CAUSE. "Cause" for Termination shall include, but is not
limited to, the following conduct of the Employee:
(i) Breach of any material provision of this
Employment Agreement by the Employee if not cured within two (2) weeks after
receiving written notice thereof;
(ii) Misconduct as an Employee of the Company,
including but not limited to, misappropriating funds or property of the Company;
any attempt to obtain any personal profit from any transaction in which the
Employee has an interest that is adverse to the Company or any breach of the
duty of loyalty and fidelity to the Company; or any other act or omission of the
Employee which substantially impairs the Company's ability to conduct its
ordinary business in its usual manner;
(iii) Material neglect or refusal to perform the
duties assigned to the Employee pursuant to this Employment Agreement if not
cured within two (2) weeks after receiving notice thereof;
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(iv) Conviction of a felony or plea of guilty or NOLO
CONTENDERE to a felony;
(v) Acts of dishonesty or moral turpitude by the
Employee that are detrimental to the Company or any other act or omission which
subjects the Company or any of its affiliates to public disrespect, scandal, or
ridicule, or that causes the Company to be in violation of governmental
regulations that subjects the Company either to sanctions by governmental
authority or to civil liability to its employees or third parties;
(vi) Disclosure or use of confidential information of
the Company, other than as specifically authorized and required in the
performance of the Employee's duties.
(e) Termination by Employer Without Cause. Upon termination
of this Agreement without Cause, (i) the Company shall be released from any and
all further obligations under this Agreement, except that the Employee shall
continue to be paid or provided, as applicable, in the same manner as before
termination, and for a period of time ending nine (9) months from the date of
termination of the Employee without Cause; and (ii) if the termination occurs
during the Initial Term, options to purchase, the lesser of (A) one hundred
fifty thousand and three (150,003) shares of Common Stock; and (B) the number of
shares of Common Stock issuable upon the exercise of the remaining unvested
options shall vest immediately upon termination, if, and only if, the Employee
signs a valid general release of all claims against the Company, its affiliates,
subsidiaries, officers, directors and agents, in a form provided by the Company.
The Company shall have no further obligation or liability to the Employee. The
Employee's obligations under Sections 5, 7, 8 and 9 hereof and shall survive the
termination of the Employee's employment, regardless of the circumstances of any
such termination, and the Employee shall remain bound thereby.
(f) Termination by Mutual Agreement. This Agreement may be
terminated at any time by mutual agreement of the Employee and the Company.
(g) Termination by Employee for Cause. This Agreement may be
terminated by Employee for Cause if Employee's current salary or benefits are
reduced by more than 30%. In the event the Employee terminates employment for
Cause, Employee shall continue to be paid or provided, as applicable, in the
same manner as before termination, and for a period of time ending nine (9)
months from the date of termination of the Employee without Cause, if, and only
if, the Employee signs a valid general release of all claims against the
Company, its affiliates, subsidiaries, officers, directors and agents, in a form
provided by the Company. The Company shall have no further obligation or
liability to the Employee. The Employee's obligations under Sections 5, 7, 8 and
9 hereof and shall survive the termination of the Employee's employment,
regardless of the circumstances of any such termination, and the Employee shall
remain bound thereby.
5. Non-Competition and Business Opportunities.
(a) Non-Competition. The Employee understands that the Company
is in the business of developing and licensing finger print identification
technologies, and distributing products incorporating such technologies, to
original equipment manufacturers and end users.
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The Employee agrees that during the period of his employment hereunder and for a
period of one (1) year thereafter, the Employee will not directly or indirectly:
(i) market, sell or perform services such as are offered or conducted by the
Company, its affiliates and subsidiaries during the period of his employment, to
any customer or client of the Company or "Prospective Customer" or client of the
Company; or (ii) engage, directly or indirectly, whether as principal or as
agent, officer, director, employee, consultant, shareholder, or otherwise, alone
or in association with any other person, corporation or other entity, in any
"Competing Business". For the purpose of this Section 5(a) "Prospective
Customer" shall mean any person with whom the Company has engaged in any
discussion or negotiation regarding the use of the Company's products or
services. For purposes of this Section 5(a), the term "shareholder" shall
exclude any interest owned by Employer in a public company to the extent the
Employer owns less than ten percent (10%) of any such company's outstanding
common stock. For the further purposes of this Agreement, the term "Competing
Business" shall mean any person, corporation or other entity developing and/or
licensing finger print identification technologies or distributing products
incorporating such technologies, within the United States, to original equipment
manufacturers and end users at the time of such termination or non-renewal. Due
to the nature of the markets served and the technology and products to be
developed and marketed by the Company which are intended to be available on a
national basis, the restrictions set forth in this Section 5(a) can not be
limited to a specific geographic area within the United States.
(b) Business Opportunities. The Employee agrees that during
the period of his employment hereunder, the Employee will not take personal
advantage of any business opportunities that are similar or substantially
similar to the business of the Company. In addition, all material facts
regarding any such business opportunities must be promptly and fully disclosed
by the Employee to the Board of Directors as soon as the Employee becomes aware
of any opportunity, and in no event later than forty-eight (48) hours after
learning of such opportunity. Business opportunities covered by this Section
5(b) shall include, but are not limited to, opportunities relating to the
development and licensing of finger print identification technologies or the
distribution of products incorporating such technologies to original equipment
manufacturers and end users.
(c) Non-Solicitation. The Employee agrees that during the
period of employment hereunder and for a period of one (1) year thereafter, the
Employee will not request or otherwise attempt to induce or influence, directly
or indirectly, any present customer, distributor or supplier, or Prospective
Customer, distributor or supplier, of the Company, or other persons sharing a
business relationship with the Company to cancel, to limit or postpone their
business with the Company, or otherwise take action which might be to the
material disadvantage of the Company. The Employee agrees that during the period
of employment hereunder and for a period of one (1) year thereafter, Employee
will not hire or solicit for employment, directly or indirectly, or induce or
actively attempt to influence, hire or solicit, any employee, agent, officer,
director, contractor, consultant or other business associate of the Company to
terminate his or her employment or discontinue such person's consultant,
contractor or other business association with the Company.
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(d) Scope. The parties hereto agree that, due to the nature of
the Company's business, the duration and scope of the non-competition and
non-solicitation provisions set forth above are reasonable. In the event that
any court determines that the duration or the geographic scope, or both, are
unreasonable and that such provisions are to that extent unenforceable, the
parties hereto agree that such provisions shall remain in full force and effect
for the greatest time period and in the greatest area that would not render it
unenforceable. The parties intend that the non-competition and non-solicitation
provisions herein shall be deemed to be a series of separate covenants, one for
each and every county of each and every state of the United States of America
and each and every political subdivision of each and every country outside the
United States of America where this provision is intended to be effective. The
Employee agrees that damages are an inadequate remedy for any breach of such
provisions and that the Company, shall, whether or not it is pursuing any
potential remedies at law, be entitled to seek in any court of competent
jurisdiction, equitable relief in the form of preliminary and permanent
injunctions without bond or other security upon any actual or threatened breach
of either of these competition provisions. If the Employee shall violate this
Section 5, the duration of this Section 5 automatically shall be extended as
against the Employee for a period equal to the period during which the Employee
shall have been in violation of this Section 5. The covenants contained in this
Section 5 are deemed to be material and the Company is entering into this
Agreement relying on such covenants.
6. Representations and Warranties of the Employee. The Employee, hereby
represents and warrants to the Company as follows: (i) The Employee has the
legal capacity and unrestricted right to execute and deliver this Agreement and
to perform all of his obligations hereunder; (ii) the execution and delivery of
this Agreement by the Employee and the performance of his obligations hereunder
will not violate or be in conflict with any fiduciary or other duty, instrument,
agreement, document, arrangement, or other understanding to which Employee is a
party or by which he is or may be bound or subject; and (iii) except as set
forth in Exhibit C attached hereto, the Employee is not a party to any
instrument, agreement, document, arrangement, including, but not limited to,
invention assignment agreement, confidential information agreement,
non-competition agreement, non-solicitation agreement, or other understanding
with any person (other than the Company) requiring or restricting the use or
disclosure of any confidential information or the provision of any employment,
consulting or other services.
7. Disclosure of Innovations; Assignment of Ownership of Innovations;
Protection of Confidential Information. Employee hereby represents and warrants
to the Company that Employee understands that the Company is in the business of
developing and licensing finger print identification technologies, and
distributing products incorporating such technologies, to original equipment
manufacturers and end users and that Employee may have access to or acquire
information with respect to Confidential Information (as defined below),
including software, processes and methods, development tools, scientific,
technical and/or business innovations.
(a) Disclosure of Innovations. Employee agrees to disclose in
writing to the Company all inventions, improvements and other innovations of any
kind that Employee may
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make, conceive, develop or reduce to practice, alone or jointly with others,
during the term of Employee's employment with the Company, whether or not such
inventions, improvements or other innovations are related to and grow out of
Employee's work for the Company and whether or not they are eligible for patent,
copyright, trademark, trade secret or other legal protection ("Innovations").
Examples of Innovations shall include, but are not limited to, discoveries,
research, inventions, formulas, techniques, processes, know-how, marketing
plans, new product plans, production processes, advertising, packaging and
marketing techniques and improvements to computer hardware or software.
(b) Assignment of Ownership of Innovations. Employee agrees
that all Innovations will be the sole and exclusive property of the Company and
Employee hereby assigns all of Employee's rights, title or interest in the
Innovations and in all related patents, copyrights, trademarks, trade secrets,
rights of priority and other proprietary rights to the Company. At the Company's
request and expense, during and after the period of Employee's employment with
the Company, Employee will assist and cooperate with the Company in all respects
and will execute documents, and, subject to Employee's reasonable availability,
give testimony and take further acts requested by the Company to obtain,
maintain, perfect and enforce for the Company patent, copyright, trademark,
trade secret and other legal protection for the Innovations. Employee hereby
appoints an authorized officer of the Company as Employee's attorney-in-fact to
execute documents on his behalf for this purpose. Employee has attached hereto
as Exhibit D a list of Innovations as of the date hereof which belong to
Employee and which are not assigned to the Company hereunder (the "Prior
Innovations"), or, if no such list is attached, Employee represents that there
are no Prior Innovations.
(c) Protection of Confidential Information of the Company.
Employee understands that Employee's work as an employee of the Company creates
a relationship of trust and confidence between Employee and the Company. During
and after the period of Employee's employment with the Company, Employee will
not use or disclose or allow anyone else to use or disclose any "Confidential
Information" (as defined below) relating to the Company, its products, services,
suppliers or customers except as may be necessary in the performance of
Employee's work for the Company or as may be specifically authorized in advance
by appropriate officers of the Company. "Confidential Information" shall
include, but not be limited to, information consisting of research and
development, patents, trademarks and copyrights and applications thereto,
technical information, computer programs, software, methodologies, innovations,
software tools, know-how, knowledge, designs, drawings, specifications,
concepts, data, reports, processes, techniques, documentation, pricing,
marketing plans, customer and prospect lists, trade secrets, financial
information, salaries, business affairs, suppliers, profits, markets, sales
strategies, forecasts, employee information and any other information not
available to the general public, whether written or oral, which Employee knows
or has reason to know the Company would like to treat as confidential for any
purpose, such as maintaining a competitive advantage or avoiding undesirable
publicity. Employee will keep Confidential Information secret and will not allow
any unauthorized use of the same, whether or not any document containing it is
marked as confidential. These restrictions, however, will not apply to
Confidential Information that has
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become known to the public generally through no fault or breach of Employee's or
that the Company regularly gives to third parties without restriction on use or
disclosure.
8. WORK MADE FOR HIRE.
(a) Work Made For Hire. Employee further recognizes and
understands that Employee's duties at the Company may include the preparation of
materials, including without limitation written or graphic materials, and that
any such materials conceived or written by Employee shall be done as "work made
for hire" as defined and used in the Copyright Act of 1976, 17 U.S.C. ss.ss. 1
et seq. In the event of publication of such materials, Employee understands that
since the work is a "work made for hire", the Company will solely retain and own
all rights in said materials, including right of copyright. In the event that
any of such works shall be deemed by a court of competent jurisdiction not to be
a "work made for hire," this Agreement shall operate as an irrevocable
assignment by Employee to the Company of all right, title and interest in and to
such works, including, without limitation, all worldwide copyright interests
therein, in perpetuity. The fact that such copyrightable works are created by
Employee outside of the Company's facilities or other than during Employee's
working hours with the Company shall not diminish the Company's right with
respect to such works which otherwise fall within this paragraph. Employee
agrees to execute and deliver to the Company such further instruments or
documents as may be requested by the Company in order to effectuate the purposes
of this paragraph.
(b) Disclosure of Works and Inventions/Assignment of Patents.
In consideration of the promises set forth herein, Employee agrees to disclose
promptly to the Company, or to such person whom the Company may expressly
designate for this specific purpose (its "Designee"), any and all works,
inventions, discoveries and improvements authored, conceived or made by Employee
during the period of employment and related to the business or activities of the
Company, and Employee hereby assigns and agrees to assign all of Employee's
interest in the foregoing to the Company or to its Designee. Employee agrees
that, whenever he is requested to do so by the Company, Employee shall execute
any and all applications, assignments or other instruments which the Company
shall deem necessary to apply for and obtain Letters Patent or Copyrights of the
United States or any foreign country or to otherwise protect the Company's
interest therein. Such obligations shall continue beyond the termination or
nonrenewal of Employee's employment or service with respect to any works,
inventions, discoveries and/or improvements that are authored, conceived of, or
made by Employee during the period of Employee's employment or service, and
shall be binding upon Employee's successors, assigns, executors, heirs,
administrators or other legal representatives.
9. Company Property. All records, files, lists, including computer
generated lists, drawings, documents, software, documents, equipment, models,
binaries, object modules, libraries, source code and similar items relating to
the Company's business that the Employee shall prepare or receive from the
Company and all Confidential Information shall remain the Company's sole and
exclusive property ("Company Business Property"). Upon termination of this
Agreement, the Employee shall promptly return to the Company all property of the
Company
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in his possession, including Company Business Property. The Employee further
represents that he will not copy or cause to be copied, print out, or cause to
be printed out any Company Business Property other than as specifically
authorized and required in the performance of the Employee's duties. The
Employee additionally represents that, upon termination of his employment with
the Company, he will not retain in his possession any such Company Business
Property.
10. Cooperation. The Employee and Company agree that during the term of
Employee's employment they shall, at the request of the other Party, render all
assistance and perform all lawful acts that each Party considers necessary or
advisable in connection with any litigation involving either Party or any
director, officer, employee, shareholder, agent, representative, consultant,
client, or vendor of the Company.
11. Employment Dispute Settlement Procedure/Waiver of Rights. The
Employee and the Company each agree that, in the event either party (or its
representatives, successors or assigns) brings an action in a court of competent
jurisdiction relating to the Employee's recruitment, employment with, or
termination of employment from the Company, each party in such action agrees to
waive his, her or its right to a trial by jury, and further agrees that no
demand, request or motion will be made for trial by jury.
The parties hereto further agree that, in the event that either seeks relief in
a court of competent jurisdiction for a dispute covered by this Agreement, any
other Agreement between the Employee and the Company or which relates to the
Employee's recruitment, employment with, or termination of employment from the
Company, the defendant or third-party defendant in such action may, at any time
within sixty (60) days of the service of the complaint, third-party complaint or
cross-claim upon such party, at his, her or its option, require all or part of
the dispute to be arbitrated by one arbitrator in accordance with the rules of
the American Arbitration Association. The parties agree that the option to
arbitrate any dispute is governed by the Federal Arbitration Act. The parties
understand and agree that, if the other party exercises his, her or its option,
any dispute arbitrated will be heard solely by the arbitrator, and not by a
court. Judgment upon the award rendered, however, may be entered in any court of
competent jurisdiction. The cost of such arbitration shall be borne equally by
the parties.
This dispute resolution agreement will cover all matters directly or indirectly
related to the Employee's recruitment, employment or termination of employment
by the Company; including, but not limited to, claims involving laws against
discrimination whether brought under federal and/or state law and/or local law,
and/or claims involving co-employees but excluding Worker's Compensation Claims.
Nothing contained in this Section 11 shall limit the right of the Company to
enforce by court injunction or other equitable relief the Employee's obligations
under Sections 5, 7, 8 and 9 hereof.
The right to a trial, and to a trial by jury, is of value.
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THE EMPLOYEE MAY WISH TO CONSULT AN ATTORNEY PRIOR
TO SIGNING THIS AGREEMENT. IF SO, THE EMPLOYEE
SHOULD TAKE A COPY OF THIS AGREEMENT WITH HIM.
HOWEVER, THE EMPLOYEE WILL NOT BE OFFERED EMPLOYMENT
UNTIL THIS AGREEMENT IS SIGNED AND RETURNED TO
EMPLOYER.
12. Choice of Law and Jurisdiction. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of Minnesota. Each of the parties hereto hereby irrevocably
consents and submits to the exclusive jurisdiction of the state courts of the
State of Minnesota, and of the United States District Court for the District of
Minnesota in connection with any suit, action, or other proceeding concerning
this Agreement or enforcement of Sections 5, 7, 8 and 9 hereof. The Employee
waives and agrees not to assert any defense that the court lacks jurisdiction,
venue is improper, inconvenient forum or otherwise. The Employee waives the
right to a jury trial and agrees to accept service of process by certified mail
at the Employee's last known address.
13. Successors and Assigns. Neither this Agreement, nor any of the
Employee's rights, powers, duties or obligations hereunder, may be assigned by
the Employee. This Agreement shall be binding upon and inure to the benefit of
the Employee and his heirs and legal representatives and the Company and its
successors. Successors of the Company shall include, without limitation, any
company or companies, individuals, groups, associations, partnerships, firm,
venture or other entity or party acquiring, directly or indirectly, all or
substantially all of the assets of the Company, whether by merger,
consolidation, purchase, lease or otherwise. Any such successor referred to in
this paragraph shall thereafter be deemed "the Company" for the purpose hereof.
All covenants and restrictions upon the Employee hereunder, including, but not
limited to Sections 5, 7, 8 and 9 hereof, are specifically assignable by the
Company.
14. Waiver. Any waiver or consent from the Company with respect to any
term or provision of this Agreement or any other aspect of the Employee's
conduct or employment shall be effective only in the specific instance and for
the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of the Company at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to any term or
provision of this Agreement or any other aspect of the Employee's conduct or
employment in no manner (except as otherwise expressly provided herein) shall
affect the Company's right at a later time to enforce any such term or
provision.
15. Notices. All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first class,
registered mail, return receipt requested, postage and registry fees prepaid, to
the applicable party and addressed as follows:
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(a) If to the Company:
SAC Technologies, Inc.
1285 Corporate Center Drive, Suite 175
Eagan, MN 55121
Attn: Board of Directors
With a copy to:
Buchanan Ingersoll Professional Corporation
Eleven Penn Center
1845 Market Street
Philadelphia, PA 19103
Attn: Vincent A. Vietti, Esquire
(b) If to the Employee:
Jeffry R. Brown
5710 Northwood Ridge
Bloomington, MN 55437
16. Construction of Agreement.
(a) Severability. In the event that any one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(b) Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement.
17. Entire Agreement and Amendments. This Agreement, including all
Exhibits which shall form parts hereof, contains the entire agreement of the
parties concerning the Employee's employment and all promises, representations,
understandings, arrangements and prior agreements on such subject are merged
herein and superseded hereby. The provisions of this Agreement may not be
amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification, repeal, waiver, extension or discharge is sought. No
person acting other than pursuant to a resolution of the Board of Directors
shall have authority on behalf of the Company to agree to amend, modify, repeal,
waive, extend or discharge any provision of this Agreement or anything in
reference thereto or to exercise any of the Company's rights to terminate or to
fail to extend this Agreement.
18. Survival. The Employee's obligations under Paragraphs 5, 7, 8 and 9
shall survive and continue pursuant to the terms and conditions of this
Agreement following specific termination.
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19. Understanding. The Employee represents and agrees that he fully
understands his rights to discuss all aspects of this Agreement with his private
attorney, that to the extent he desires, he availed himself of this right, that
he has carefully read and fully understands all of the provisions of this
Agreement, that he is competent to execute this Agreement, that his decision to
execute this Agreement has not been obtained by any duress and that he freely
and voluntarily enters into this Agreement, and that he has read this document
in its entirety and fully understands the meaning, intent, and consequences of
this Agreement.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
21. Injunctive Relief. The Employee hereby agrees and acknowledges that
in the event of a breach or threatened breach of this Agreement by the Employee,
the Company may suffer irreparable harm and monetary damages alone would not
adequately compensate the Company. Accordingly, the Company will therefore be
entitled to injunctive relief to enforce this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and attested by its duly authorized officers, and the Employee has set
his hand, all as of the day and year first above written.
SAC TECHNOLOGIES, INC.
By: /s/ Barry Wendt
-------------------------------------
Name: Barry Wendt
-------------------------------
Title: Chief Executive Officer
------------------------------
EMPLOYEE
/s/ Jeffry R. Brown
-----------------------------------------
Jeffry R. Brown
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EXHIBIT C
LIST OF PRIOR CONFIDENTIALITY AND/OR NONCOMPETITION AGREEMENTS
Company; Date of Employment;
------- ------------------
Company Address Effective Dates of Agreement Brief Description
--------------- ---------------------------- -----------------
NONE
Date: November 13, 2000 /s/ Jeffry R. Brown
-----------------------------------------
Employee's Signature
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EXHIBIT D
PRIOR INNOVATIONS:
NONE
