EXHIBIT 10.11
EMPLOYEE AGREEMENT
THIS AGREEMENT is made and entered into as of the ______ day of ________,
_____, by and between EXCELSIOR-XXXXXXXXX MOTORCYCLE MANUFACTURING COMPANY, a
Minnesota corporation (the "Company"), and _______________ (hereinafter referred
to as "Employee").
RECITALS
WHEREAS, on ______________, the Company made an offer of employment to
Employee which Employee accepted and the parties both understand that such
employment is not for a specified duration; and
WHEREAS, the parties agreed and understood on such date that as a condition
of such employment, Employee must enter into this Agreement.
NOW, THEREFORE, in consideration of the employment of Employee by the
Company and the premises, terms and conditions set forth herein, the parties
hereto mutually agree as follows:
ARTICLE I.
NON-SOLICITATION AGREEMENT
Employee covenants and agrees that while employed by the Company, and for a
period of one year immediately following the effective date of any employment
termination, Employee will not in any way, on Employee's own behalf or on behalf
of or in conjunction with any person, partnership, firm or corporation, directly
or indirectly, solicit, entice, hire, employ or endeavor to employ any employee
of the Company, or any of the Company's parent, sister or subsidiary
corporations ("Affiliated Entities").
ARTICLE II.
AGREEMENT NOT TO COMPETE DURING EMPLOYMENT
2.1 Employee covenants and agrees that Employee will not, during the term
of Employee's employment with the Company, as an employee, director, officer,
shareholder, partner, advisor, consultant or otherwise, engage in any commercial
activity or participate in any venture of any kind that competes with the
Company or any of its Affiliated Entities with respect to the manufacturing or
distributing of motorcycles or related parts and accessories within North
America.
2.2 Nothing stated in this Article II shall be deemed to preclude Employee
from holding less than 1% of the outstanding capital stock of any corporation
required to file periodic reports with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
and the securities of which are listed on any securities exchange or quoted on
the National Association of Securities Dealers Automated Quotation System or
traded on the over-the-counter market.
2.3 Employee acknowledges that the Company has expended substantial time
and expense in the research and development of processes, technology, techniques
and products which are unique to the Company or not generally known to others
and which could be unfairly taken or used by others in competition with the
Company, and further acknowledges that competition with the Company is not based
strictly on geographical location. Accordingly, Employee agrees that the
restrictions contained in this Agreement are reasonable.
2.4 If the scope of the restrictions contained in this Article II is too
broad to permit enforcement of such restrictions to their full extent, then such
restrictions shall be construed or re-written ("blue-lined") so as to be
enforceable to the maximum extent permitted by law, and Employee hereby
consents, to the extent Employee may lawfully do so, to the judicial
modification of the scope of such restrictions in any proceeding brought to
enforce such restrictions.
ARTICLE III.
CONFIDENTIAL INFORMATION AND TRADE SECRETS
3.1 Employee covenants and agrees not to at any time divulge, furnish,
publish or make accessible to anyone, or authorize others to divulge, furnish,
publish or make accessible to anyone, except as required by Employee's duties to
the Company or any of its Affiliated Entities, or to its or their directors and
officers, any Confidential Information of the Company (as defined below) or any
of its Affiliated Entities. "Confidential Information" shall mean any (i)
information regarding the products, plans, business and financial practices,
marketing plans, management practices, customers and customer lists of the
Company or any of its Affiliated Entities, identity of contractors of and
suppliers to the Company or any of its Affiliated Entities, and identity of
shareholders of the Company or any of its Affiliated Entities, (ii) any data,
formula, pattern, compilation, program, device, method, technique or process of
the Company or any of its Affiliated Entities that derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can derive economic
value from its disclosure or use and (iii) any information designated by the
Company or any of its Affiliated Entities to Employee as Confidential
Information. Information does not lose its confidential nature merely because
it was known by a limited number of persons or entities or because it was not
entirely originated by the Company.
3.2 Employee covenants and agrees that Employee shall not at any time use
Confidential Information of the Company or any of its Affiliated Entities except
as required by Employee's duties to the Company or any of its Affiliated
Entities.
3.3 Further, and without limitation on the other obligations of confidence
recited herein, Employee agrees not to disregard Employee's obligations of
confidence by using any Confidential Information of which Employee becomes
informed during Employee's employment to guide Employee in a search of
publications or other publicly available information, selecting a series of
items of knowledge from unconnected sources and fitting them together to claim
that Employee did not violate Employee's agreement set forth in Sections 3.1 and
3.2 hereof. The restriction contained in this Section 3.3 shall not apply to
information known by Employee, and not wrongfully obtained, prior to the time
Employee became an employee of the Company.
3.4 Upon termination of Employee's employment with the Company, Employee
agrees to deliver to the Company all materials that include Confidential
Information and all copies thereof, including without limitation customer cards
or lists, supplier and contractor lists, marketing materials product
formulations, instruction sheets, drawings, manuals, letters, notes, notebooks,
reports and copies thereof, and all other materials, products, technology and
processes which are in Employee's possession or under Employee's control and
which relate to any aspect of the business of the Company or any of its
Affiliated Entities, including any product, apparatus, or process, manufactured,
used, developed, or investigated by the Employee during the course of Employee's
employment. Employee agrees and understands that the same
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and all information contained therein shall be at all times the property of the
Company. Further, immediately upon termination of Employee's employment with
the Company, Employee agrees to make available to any person designated by the
Company all information concerning pending or preceding transactions which may
affect the operation of the Company or any of its Affiliated Entities about
which Employee has knowledge. The obligations of Employee contained in this
paragraph are in addition to the obligation of Employee under law to return to
the Company, upon the termination of Employee's employment, all property of the
Company then in Employee's possession.
ARTICLE IV.
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
Employee shall promptly disclose to the Company all inventions,
discoveries, improvements, designs, processes, techniques, equipment, trademarks
and copyrightable matter conceived or made by Employee during Employee's
employment and related to any aspect of the business of the Company, and
Employee hereby assigns all of Employee's interest therein, including the good
will of the business symbolized by any trademarks, to the Company. Employee
further agrees to execute any applications, assignments or other instruments
which the Company shall deem necessary to obtain letters patent, trademark
registration or copyright registration in the United States or any foreign
country or to otherwise protect the Company's interests therein. Nothing
contained in this provision shall apply to any invention for which no equipment,
supplies, facility or Confidential Information or trade secrets information of
the Company or any of its Affiliated Entities was used and which was developed
entirely on the Employee's own time, and (a) which does not relate (1) to any
aspect of the business of the Company or any of its Affiliated Entities or
(2) to the actual or demonstrably anticipated research or development of the
Company or any of its Affiliated Entities, or (b) which does not result from any
work performed by the Employee for the Company or any of its Affiliated
Entities.
ARTICLE V.
REMEDIES
Employee acknowledges and agrees that a breach by Employee of the
provisions of this Agreement may cause the Company irreparable injury and damage
which cannot be reasonably or adequately compensated by damages at law.
Employee therefore expressly agrees that the Company shall be entitled, in
addition to any other remedies legally available, to injunctive and/or other
equitable relief to prevent a breach of this Agreement. In the event of such a
breach, Employee shall be liable for any and all reasonable attorneys' fees,
expenses and court costs incurred by the Company in connection with the
enforcement of its rights hereunder.
ARTICLE VI.
NO GUARANTEE OF EMPLOYMENT
Nothing herein guarantees Employee's continued employment by the Company,
either indefinitely or for any particular period of time.
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ARTICLE VII.
MISCELLANEOUS
7.1 Except as otherwise indicated, the provisions of this Agreement shall
survive the termination of Employee's employment by the Company.
7.2 In case any one or more of the provisions of this Agreement shall be
found to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
7.3 This Agreement is entered into in the State of Minnesota and shall be
construed and interpreted according to the statutes, rules of law and court
decisions of said State.
7.4 This Agreement may be amended or superseded only by an agreement in
writing between the Company and Employee.
7.5 All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and shall be sufficiently given if and
when mailed by registered or certified mail, return receipt requested, or
personally delivered, to the party entitled thereto at the address stated below
or to such other address as the addressee may indicate by similar notice:
To the Company: 000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
To Employee:
7.6 Employee may not assign the rights and obligations of Employee
hereunder.
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EMPLOYEE UNDERSTANDS THAT THIS IS A LEGAL CONTRACT AND THAT IF EMPLOYEE DOES NOT
UNDERSTAND THE PROVISIONS OR EFFECTS OF THE PROVISIONS OF THIS AGREEMENT,
EMPLOYEE SHOULD SEEK LEGAL REPRESENTATION.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
EMPLOYEE EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
------------------------------- By:
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Its:
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