1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
1. Period of Employment
2. Position and Responsibilities
3. Compensation and Benefits
4. Termination of Employment
5. Proprietary Information
6. Arbitration
7. Notices
8. Action by Odwalla
9. Integration
10. Amendments; Waivers
11. Assignment; Successors and Assigns
12. Severability
13. Attorneys' Fees
14. Injunctive Relief
15. Governing Law
16. Interpretation
17. Employee Acknowledgment
This Agreement, dated as of December 21, 1999, is between Odwalla, Inc., a
California corporation ("Odwalla"), and D. Xxxxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx").
RECITALS
Odwalla and Xxxxxxxxxx wish to continue their employment relationship on the
following terms and conditions.
Odwalla recognizes and acknowledges that Xxxxxxxxxx has been valuable and
instrumental in developing Odwalla's business and good will and in coordinating
Odwalla's litigation strategy and efforts.
Xxxxxxxxxx acknowledges the additional compensation conferred upon him by this
employment agreement, consisting of additional salary, health benefits, and
option vesting provisions in the event Xxxxxxxxxx is terminated without Cause or
is Involuntarily Terminated following a Change in Control or Corporate
Transaction, as provided below.
Odwalla has spent significant time, effort, and money to develop certain
Proprietary Information (as defined below), which Odwalla considers vital to its
business and goodwill.
The Proprietary Information will necessarily be communicated to or acquired by
Xxxxxxxxxx in the course of his employment with Odwalla, and Odwalla wishes to
2
continue its employment relationship with Xxxxxxxxxx only if, in doing so, it
can protect its Proprietary Information and goodwill.
ACCORDINGLY, the parties agree as follows:
1. Period of Employment.
(a) Basic Term. Odwalla shall continue to employ Xxxxxxxxxx to render services
to Odwalla in the position and with the duties and responsibilities described in
Section 2 for the period (the "Period of Employment") commencing on the date of
this Agreement and ending upon the earlier of (i) December 21, 2002, as, and to
the extent, extended under Section 1(b); or (ii) the date upon which the Period
of Employment is terminated in accordance with Section 4.
(b) Renewal. Subject to Section 4, Xxxxxxxxxx'x employment will be renewed
automatically for an additional one (1) year period (without any action by
either party) on December 21, 2002 and on each anniversary thereof, unless one
party gives to the other written notice sixty (60) days in advance of the
beginning of any one-year renewal period that the Period of Employment is to be
terminated. In no event shall the Period of Employment under this Agreement
extend or be renewed beyond December 21, 2005. Either party may elect not to
renew this Agreement with or without cause, in which case this Section 1(b)
shall govern Xxxxxxxxxx'x termination and not Section 4 (except for Xxxxxxxxxx'x
termination obligations set forth in Section 4(h), which shall remain in
effect). Nothing stated in this Agreement or represented orally or in writing to
either party shall create an obligation to renew this Agreement.
2. Position and Responsibilities.
(a) Position. Xxxxxxxxxx accepts employment with Odwalla as Chief Executive
Officer and shall perform all services appropriate to that position, as well as
such other services as may be assigned by Odwalla. Xxxxxxxxxx shall devote his
best efforts and full-time attention to the performance of his duties.
Xxxxxxxxxx shall be subject to the direction of Odwalla, which shall retain full
control of the means and methods by which he performs the above services and of
the place(s) at which all services are rendered. Xxxxxxxxxx shall be expected to
travel if necessary or advisable in order to meet the obligations of his
position.
(b) Other Activity. Except upon the prior written consent of Odwalla,
Xxxxxxxxxx (during the Period of Employment) shall not (i) accept any other
employment; or (ii) engage, directly or indirectly, in any other business,
commercial, or professional activity (whether or not pursued for pecuniary
advantage) that is or may be competitive with Odwalla, that might create a
conflict of interest with Odwalla, or that otherwise might interfere with the
business of Odwalla, or any Affiliate. An "Affiliate" shall mean any
2
3
person or entity that directly or indirectly controls, is controlled by, or is
under common control with Odwalla. So that Odwalla may be aware of the extent of
any other demands upon Xxxxxxxxxx'x time and attention, Xxxxxxxxxx shall
disclose in confidence to Odwalla the nature and scope of any other business
activity in which he is or becomes engaged during the Period of Employment.
3. Compensation and Benefits.
(a) Compensation. In consideration of the services to be rendered under this
Agreement, Odwalla shall pay Xxxxxxxxxx Two Hundred Thousand Dollars ($200,000)
per year, payable bi-weekly, pursuant to the procedures regularly established,
and as they may be amended, by Odwalla in its sole discretion, during the Period
of Employment. Odwalla shall review annually Xxxxxxxxxx'x compensation and shall
determine, in its sole discretion, whether and how much the existing
compensation shall be adjusted, without regard to any policy or practice Odwalla
may have for adjusting salaries. All compensation and comparable payments to be
paid to Xxxxxxxxxx under this Agreement shall be less withholdings required by
law.
(b) Benefits. Pursuant to the Compensation Committee's decision of June 14,
1999, regarding Senior Executive Officer vacation policy, Xxxxxxxxxx will not
accrue vacation leave. Xxxxxxxxxx shall have the right to participate in and to
receive benefits from all present and future benefit plans specified in
Odwalla's policies and generally made available to similarly situated employees
of Odwalla. The amount and extent of benefits to which Xxxxxxxxxx is entitled
shall be governed by the specific benefit plan, as amended. Xxxxxxxxxx also
shall be entitled to any benefits or compensation tied to termination as
described in Section 4. Odwalla reserves the ability, in its sole discretion, to
adjust Xxxxxxxxxx'x benefits provided under this Agreement. No statement
concerning benefits or compensation to which Xxxxxxxxxx is entitled shall alter
in any way the term of this Agreement, any renewal thereof, or its termination.
(c) Expenses. Odwalla shall reimburse Xxxxxxxxxx for reasonable travel and
other business expenses incurred by Xxxxxxxxxx in the performance of his duties,
in accordance with Odwalla's policies, as they may be amended in Odwalla's sole
discretion.
4. Termination of Employment.
(a) By Death. The Period of Employment shall terminate automatically upon the
death of Xxxxxxxxxx. Odwalla shall pay to Xxxxxxxxxx'x beneficiaries or estate,
as appropriate, any compensation then due and owing, if any. Thereafter, all
obligations of Odwalla under this Agreement shall cease. Any stock option
outstanding at the time of Xxxxxxxxxx'x death shall remain exercisable by the
personal representative of Xxxxxxxxxx'x estate or by the person or persons to
whom the option is transferred pursuant to Xxxxxxxxxx'x will or in accordance
with the laws of descent and distribution and may be exercised as provided by
the relevant Stock Option Agreement. Nothing in
3
4
this Section shall affect any entitlement of Xxxxxxxxxx'x heirs to the benefits
of any life insurance plan or other applicable benefits.
(b) By Disability. If, by reason of any physical or mental incapacity,
Xxxxxxxxxx cannot perform his duties under this Agreement for six (6)
consecutive months, then, to the extent permitted by law, Xxxxxxxxxx'x Period of
Employment will be automatically terminated. Odwalla shall supplement any
benefits Xxxxxxxxxx receives under Odwalla's disability plans to the extent
necessary to make Xxxxxxxxxx'x net compensation whole and shall provide
applicable benefits to which he is entitled up through the last business day on
which the Period of Employment was terminated; thereafter, all obligations of
Odwalla under this Agreement shall cease. Nothing in this Section shall affect
Xxxxxxxxxx'x rights under any applicable Odwalla disability plan.
(c) By Employer Not For Cause. At any time, Odwalla may terminate Xxxxxxxxxx
without Cause (as defined below) by providing Xxxxxxxxxx sixty (60) days'
advance written notice, provided Odwalla:
(i) pays Xxxxxxxxxx all compensation due to Xxxxxxxxxx through December
21, 2002, or the relevant anniversary thereof, if this Agreement has been
automatically renewed as provided by Section 1(b). The compensation due to
Xxxxxxxxxx during this period will be based on Xxxxxxxxxx'x salary as of
the effective date of termination and will be payable on a bi-weekly
basis;
(ii) reimburses Xxxxxxxxxx for the cost of acquiring health benefits,
through COBRA or, to the extent Xxxxxxxxxx'x eligibility for COBRA ends
prior to the fulfillment of this obligation, through the independent
purchase of comparable health benefits, through December 21, 2002, or the
relevant anniversary thereof, if this Agreement has been automatically
renewed as provided by Section 1(b); and
(iii) automatically accelerates each outstanding stock option so that each
such option shall, at the time Xxxxxxxxxx'x termination becomes effective,
become fully exercisable with respect to the total number of shares of
stock at the time subject to such option and may be exercised for any or
all of those shares as fully vested shares. Any options so accelerated
shall remain exercisable for the limited period set forth in the stock
option agreements evidencing the option, but no such option shall be
exercisable after the expiration of the option term.
Odwalla shall have the option, in its complete discretion, to terminate
Xxxxxxxxxx at any time prior to the end of the sixty (60) day notice period.
(d) By Employer For Cause. At any time, and without prior notice, Odwalla may
terminate Xxxxxxxxxx for Cause. Odwalla shall pay Xxxxxxxxxx all compensation
then due and owing; thereafter, all of Odwalla's obligations under this
Agreement shall cease. Termination shall be for "Cause" if Xxxxxxxxxx: (i) acts
in bad faith and to the detriment of Odwalla; (ii) refuses or fails to act in
accordance with any specific direction or order of
4
5
Odwalla; (iii) exhibits in regard to his employment unfitness or unavailability
for service, unsatisfactory performance, misconduct, dishonesty, habitual
neglect, or incompetence; (iv) is convicted of a crime involving dishonesty,
breach of trust, or physical or emotional harm to any person; (v) is selected
for layoff pursuant to a bona fide reduction-in-force; or (vi) breaches any
material term of this Agreement. If termination is due to Xxxxxxxxxx'x
disability, Section 4(b) above shall control, and not this subsection on
termination for Cause.
(e) By Employee Not for Good Reason. At any time, Xxxxxxxxxx may terminate his
employment without Good Reason (as defined below) by providing Odwalla thirty
(30) days' advance written notice. Odwalla shall have the option, in its
complete discretion, to make Xxxxxxxxxx'x termination effective at any time
prior to the end of such notice period, provided Odwalla pays Xxxxxxxxxx all
compensation due and owing through the last day actually worked, plus an amount
equal to the base salary Xxxxxxxxxx would have earned through the balance of the
above notice period, not to exceed thirty (30) days; thereafter, all of
Odwalla's obligations under this Agreement shall cease.
(f) By Employee for Good Reason. Xxxxxxxxxx may terminate his employment for
Good Reason by giving Odwalla thirty (30) days' advance written notice.
Termination shall be for "Good Reason" if:
(i) the position, duties, or responsibilities assigned to Xxxxxxxxxx are
materially and adversely changed; or
(ii) Odwalla fails to comply in any material respect with any of its
material covenants and agreements hereunder.
Xxxxxxxxxx'x written notice of termination of his employment for Good Reason
shall specify with reasonable detail the nature of the grounds for such
termination and provide Odwalla with a period of thirty (30) days during which
Odwalla shall be given the opportunity to cure the condition constituting Good
Reason. Any such notice shall be made not more than forty-five (45) days after
the occurrence of the event that is the basis for the Good Reason. If the
condition is remedied within the thirty (30) day notice period, Xxxxxxxxxx'x
notice of termination shall be rescinded automatically; if not remedied,
termination shall become effective upon the expiration of the above notice
period. In the event Xxxxxxxxxx terminates his employment for Good Reason
pursuant to this section, and Odwalla fails to cure the condition constituting
Good Reason, Xxxxxxxxxx shall be entitled to receive severance pay in an amount
equal to Xxxxxxxxxx'x base salary then in effect (as specified pursuant to
Section 3(a)) for a period of twelve (12) months and reimbursement for the cost
of acquiring health benefits through COBRA for a period of twelve (12) months.
Such severance pay shall be in lieu of any damages under this Agreement for any
alleged breach. Thereafter, all of Odwalla's obligations under this Agreement
shall cease. Odwalla shall also have the option, in its complete discretion, to
make Xxxxxxxxxx'x termination effective at any time prior to the end of the
notice period, provided that Odwalla pays Xxxxxxxxxx all compensation due and
owning through the balance of the notice period (not to exceed thirty (30)
days), in addition to the payment of twelve (12) months base salary and health
benefits reimbursement described
5
6
above. Such severance pay and health benefits reimbursement shall be paid in
accordance with Odwalla's normal payroll cycle.
(g) Involuntary Termination Following Change in Control/Corporate Transaction.
To the extent permitted by law, Odwalla, in its sole discretion, may terminate
the Period of Employment (in which case all of Odwalla's obligations under this
Agreement shall cease after payment of all compensation due and owing) upon any
formal action of Odwalla's management to effect a Change in Control, as that
term is defined in the Addendum to Incentive Stock Option dated December 15,
1993, September 1, 1994, and March 5, 1997, each effective December 21, 1999,
and Addendum to Stock Option Agreement dated March 5, 1997, December 18, 1998
and June 14, 1999, each effective December 21, 1999, or a Corporate Transaction,
as that term is defined in the 1997 Stock Option/Stock Issuance Plan. In the
event Xxxxxxxxxx is subjected to of an Involuntary Termination, as that term is
defined in the Addendum to Incentive Stock Option dated December 15, 1993,
September 1, 1994, and March 5, 1997, each effective December 21, 1999, and
Addendum to Stock Option Agreement dated March 5, 1997, December 18, 1998 and
June 14, 1999, each effective December 21, 1999, within twelve (12) months of a
Change in Control or a Corporate Transaction, Odwalla will:
(i) pay Xxxxxxxxxx all compensation due to Xxxxxxxxxx through December
21, 2002, or the relevant anniversary thereof, if this Agreement has been
automatically renewed as provided by Section 1(b). The compensation due to
Xxxxxxxxxx during this period will be based on Xxxxxxxxxx'x salary as of
the effective date of the Involuntary Termination and will be payable on a
bi-weekly basis;
(ii) reimburse Xxxxxxxxxx for the cost of acquiring health benefits,
through COBRA or, to the extent Xxxxxxxxxx'x eligibility for COBRA ends
prior to the fulfillment of this obligation, through the independent
purchase of comparable health benefits, through December 21, 2002, or the
relevant anniversary thereof, if this Agreement has been automatically
renewed as provided by Section 1(b); and
(iii) automatically accelerate each outstanding stock option so that each
such option shall, immediately upon an Involuntary Termination of
Xxxxxxxxxx'x Service, become fully exercisable with respect to the total
number of shares of stock at the time subject to such option and may be
exercised for any or all of those shares as fully vested shares. Any
options so accelerated shall remain exercisable for the limited period set
forth in the stock option agreements evidencing the option, but no such
option shall be exercisable after the expiration of the option term.
In addition, notwithstanding any provision of this Agreement to the contrary,
the total payments or benefits to be made or provided to Xxxxxxxxxx by Odwalla
(whether pursuant to this Agreement or otherwise) due to a Change of Control or
Corporate Transaction shall not exceed three times Xxxxxxxxxx'x annualized
includible compensation for the base period, as defined in subsection (d) of
Section 280G of the Internal Revenue Code of 1986 ("Code"), minus one dollar
6
7
($1.00). The intent of this portion of this Section is to prevent any payment or
benefit, including the acceleration of vesting of any outstanding and unvested
stock options, to Xxxxxxxxxx from being subject to the excise tax imposed by
Code Section 4999.
(h) Termination Obligations.
(i) Xxxxxxxxxx agrees that all property, including, without limitation,
all equipment, tangible Proprietary Information (as defined below), documents,
books, records, reports, notes, contracts, lists, computer disks (and other
computer-generated files and data), and copies thereof, created on any medium
and furnished to, obtained by, or prepared by Xxxxxxxxxx in the course of or
incident to his employment, belongs to Odwalla and shall be returned promptly to
Odwalla upon termination of the Period of Employment.
(ii) All benefits to which Xxxxxxxxxx is otherwise entitled shall cease
upon Xxxxxxxxxx'x termination, unless explicitly continued either under this
Agreement or under any specific written policy or benefit plan of Odwalla.
(iii) Upon termination of the Period of Employment, Xxxxxxxxxx shall be
deemed to have resigned from all offices then held with Odwalla or any
Affiliate.
(iv) The representations and warranties contained in this Agreement and
Xxxxxxxxxx'x obligations under this Section 4(h) on Termination Obligations and
Section 5 on Proprietary Information shall survive the termination of the Period
of Employment and the expiration of this Agreement.
(v) Following any termination of the Period of Employment, Xxxxxxxxxx
shall fully cooperate with Odwalla in all matters relating to the winding up of
pending work on behalf of Odwalla and the orderly transfer of work to other
employees of Odwalla. Xxxxxxxxxx shall also cooperate in the defense of any
action brought by any third party against Odwalla that relates in any way to
Xxxxxxxxxx'x acts or omissions while employed by Odwalla or in the defense of
any action brought by any third party relating to litigation pending against
Odwalla at the time the Period of Employment is terminated.
5. Proprietary Information.
(a) Defined. "Proprietary Information" is all information and any idea in
whatever form, tangible or intangible, pertaining in any manner to the business
of Odwalla, or any Affiliate, or its employees, clients, consultants, or
business associates, which was produced by any employee of Odwalla in the course
of his or her employment or otherwise produced or acquired by or on behalf of
Odwalla. All Proprietary Information not generally known outside of Odwalla's
organization, and all Proprietary Information so known only through improper
means, shall be deemed "Confidential Information." Xxxxxxxxxx should consult any
Odwalla procedures instituted to identify and protect certain types of
Confidential Information, which are considered by Odwalla to be
7
8
safeguards in addition to the protection provided by this Agreement. Nothing
contained in those procedures or in this Agreement is intended to limit the
effect of the other.
(b) General Restrictions on Use. During the Period of Employment, Xxxxxxxxxx
shall use Proprietary Information, and shall disclose Confidential Information,
only for the benefit of Odwalla and as is necessary to carry out his
responsibilities under this Agreement. Following termination, Xxxxxxxxxx shall
neither, directly or indirectly, use any Proprietary Information nor disclose
any Confidential Information, except as expressly and specifically authorized in
writing by Odwalla. The publication of any Proprietary Information through
literature or speeches must be approved in advance in writing by Odwalla.
(c) Location and Reproduction. Xxxxxxxxxx shall maintain at his work station
and/or any other place under his control only such Confidential Information as
he has a current "need to know." Xxxxxxxxxx shall return to the appropriate
person or location or otherwise properly dispose of Confidential Information
once that need to know no longer exists. Xxxxxxxxxx shall not make copies of or
otherwise reproduce Confidential Information unless there is a legitimate
business need for reproduction.
(d) Prior Actions and Knowledge. Xxxxxxxxxx represents and warrants that from
the time of his first contact with Odwalla, he has held in strict confidence all
Confidential Information and has not disclosed any Confidential Information,
directly or indirectly, to anyone outside of Odwalla, or used, copied,
published, or summarized any Confidential Information, except to the extent
otherwise permitted in this Agreement.
(e) Third-Party Information. Xxxxxxxxxx acknowledges that Odwalla has received
and in the future will receive from third parties their confidential information
subject to a duty on Odwalla's part to maintain the confidentiality of this
information and to use it only for certain limited purposes. Xxxxxxxxxx agrees
that he owes Odwalla and these third parties, during the Period of Employment
and thereafter, a duty to hold all such confidential information in the
strictest confidence and not to disclose or use it, except as necessary to
perform his obligations hereunder and as is consistent with Odwalla's agreement
with third parties.
(f) Competitive Activity. Xxxxxxxxxx acknowledges and agrees that the pursuit
of the activities forbidden by this subsection would necessarily involve the use
or disclosure of Confidential Information in breach of the preceding
subsections, but that proof of such a breach would be extremely difficult. To
forestall this disclosure, use, and breach, and in consideration of the
employment under this Agreement, Xxxxxxxxxx agrees that for a period of one (1)
year following the termination of his employment relationship with Odwalla or
for any period in which he is entitled to payments and health benefits pursuant
to Sections 4(c) and 4(f), whichever is greater, he shall not, directly or
indirectly, (i) divert or attempt to divert from Odwalla (or any Affiliate) any
business of any kind in which it is engaged; (ii) employ or recommend for
employment any person employed by Odwalla (or any Affiliate); or (iii) engage in
any business activity that is or may be competitive with Odwalla (or any
Affiliate) in any state where Odwalla conducts
8
9
its business, unless Xxxxxxxxxx can prove that any action taken in contravention
of this subsection was done without the use in any way of Confidential
Information. Additionally, in consideration of the employment under this
Agreement, Xxxxxxxxxx agrees that upon the event that he, directly or
indirectly, (i) diverts or attempts to divert from Odwalla (or any Affiliate)
any business of any kind in which it is engaged; (ii) employs or recommends for
employment any person employed by Odwalla (or any Affiliate); or (iii) engages
in any business activity that is or may be competitive with Odwalla (or any
Affiliate) in any state where Odwalla conducts its business, during such time as
that Xxxxxxxxxx is not employed by Odwalla but receiving payments and health
benefits pursuant to Sub-Sections 4(c) and 4(f), all of Odwalla's obligations
under this Agreement shall cease.
(g) Interference with Business. In order to avoid disruption of Odwalla's
business, Xxxxxxxxxx agrees that for a period of one (1) year after termination
of the Period of Employment, he shall not, directly or indirectly, (i) solicit
any customer of Odwalla (or any Affiliate) known to Xxxxxxxxxx during the Period
of Employment to have been a customer; or (ii) solicit for employment any person
employed by Odwalla (or any Affiliate). Additionally, Xxxxxxxxxx agrees that in
the event he, directly or indirectly, (i) solicits any customer of Odwalla (or
any Affiliate) known to Xxxxxxxxxx during the Period of Employment to have been
a customer; or (ii) solicits for employment any person employed by Odwalla (or
any Affiliate) during such time as that Xxxxxxxxxx is not employed by Odwalla
but receiving payments and health benefits pursuant to Sub-Sections 4(c) and
4(f), all of Odwalla's obligations under this Agreement shall cease.
(h) Maintenance of Records. Xxxxxxxxxx agrees to keep and maintain adequate
and current written records of all sales and customer transactions, which
records shall be available to and remain the sole property of Odwalla at all
times.
(i) The rights and obligations created in Section 5 of this Employment
Agreement are in addition to the rights and obligations contained the Employee
Proprietary Information Agreement executed by Xxxxxxxxxx on August 3, 1993.
6. Arbitration.
(a) Arbitrable Claims. To the fullest extent permitted by law, all contractual
disputes between Xxxxxxxxxx (and his attorneys, successors, and assigns) and
Odwalla (and its Affiliates, shareholders, directors, officers, employees,
agents, successors, attorneys, and assigns) arising under this Agreement
("Arbitrable Claims") shall be resolved by arbitration. All persons and entities
specified in the preceding sentence (other than Odwalla and Xxxxxxxxxx) shall be
considered third-party beneficiaries of the rights and obligations created by
this Section on Arbitration.
(b) Procedure. Arbitration of Arbitrable Claims shall be in accordance with
the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as amended ("AAA Employment Rules"), as augmented in
this Agreement.
9
10
Arbitration shall be initiated as provided by the AAA Employment Rules, although
the written notice to the other party initiating arbitration shall also include
a statement of the claim(s) asserted and the facts upon which the claim(s) are
based. Arbitration shall be final and binding upon the parties and shall be the
exclusive remedy for all Arbitrable Claims. Either party may bring an action in
court to compel arbitration under this Agreement and to enforce an arbitration
award. Otherwise, neither party shall initiate or prosecute any lawsuit or
administrative action in any way related to any Arbitrable Claim.
Notwithstanding the foregoing, either party may, at its option, seek injunctive
relief pursuant to section 1281.8 of the California Code of Civil Procedure. All
arbitration hearings under this Agreement shall be conducted in San Francisco.
In any arbitration proceeding under this Agreement, the parties shall have the
rights to discovery provided for in the AAA Employment Rules. The interpretation
and enforcement of this agreement to arbitrate shall be governed by the
California Arbitration Act. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY
RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY
OF THE AGREEMENT TO ARBITRATE.
(c) Arbitrator Selection and Authority. All disputes involving Arbitrable
Claims shall be decided by a single arbitrator. The arbitrator shall be selected
by mutual agreement of the parties within thirty (30) days of the effective date
of the notice initiating the arbitration. If the parties cannot agree on an
arbitrator, then the complaining party shall notify the AAA and request
selection of an arbitrator in accordance with the AAA Employment Rules. The
arbitrator shall have only such authority to award equitable relief, damages,
costs, and fees as a court would have for the particular claim(s) asserted. The
fees of the arbitrator shall be split between both parties equally. If the
allocation of responsibility for payment of the arbitrator's fees would render
the obligation to arbitrate unenforceable, the parties authorize the arbitrator
to modify the allocation as necessary to preserve enforceability. The arbitrator
shall have exclusive authority to resolve all Arbitrable Claims, including, but
not limited to, any claim that all or any part of this Agreement is void or
unenforceable.
(d) Confidentiality. All proceedings and all documents prepared in connection
with any Arbitrable Claim shall be confidential and, unless otherwise required
by law, the subject matter thereof shall not be disclosed to any person other
than the parties to the proceedings, their counsel, witnesses and experts, the
arbitrator, and, if involved, the court and court staff. All documents filed
with the arbitrator or with a court shall be filed under seal. The parties shall
stipulate to all arbitration and court orders necessary to effectuate fully the
provisions of this subsection concerning confidentiality.
(e) Continuing Obligations. The rights and obligations of Xxxxxxxxxx and
Odwalla set forth in this Section on Arbitration shall survive the termination
of Xxxxxxxxxx'x employment and the expiration of this Agreement.
7. Notices. Any notice or other communication under this Agreement must be in
writing
10
11
and shall be effective upon delivery by hand, upon facsimile transmission to
Odwalla (but only upon receipt by Xxxxxxxxxx of a written confirmation of
receipt), or three (3) business days after deposit in the United States mail,
postage prepaid, certified or registered, and addressed to Odwalla or to
Xxxxxxxxxx at the corresponding address or fax number (if any) below. Xxxxxxxxxx
shall be obligated to notify Odwalla in writing of any change in his address.
Notice of change of address shall be effective only when done in accordance with
this Section.
Odwalla's Notice Address:
Odwalla, Inc.
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx Xxx, XX 00000
Fax Number: 000-000-0000
Xxxxxxxxxx'x Notice Address:
D. Xxxxxxx X. Xxxxxxxxxx
0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
8. Action by Odwalla. All actions required or permitted to be taken under
this Agreement by Odwalla, including, without limitation, exercise of
discretion, consents, waivers, and amendments to this Agreement, shall be made
and authorized only by the President or by his or her representative
specifically authorized in writing to fulfill these obligations under this
Agreement.
9. Integration. This Agreement is intended to be the final, complete, and
exclusive statement of the terms of Xxxxxxxxxx'x employment by Odwalla. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Xxxxxxxxxx, and it may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To the extent
that the practices, policies, or procedures of Odwalla, now or in the future,
apply to Xxxxxxxxxx and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control.
10. Amendments; Waivers. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
11
12
11. Assignment; Successors and Assigns. Xxxxxxxxxx agrees that he will not
assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily
or involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. Nothing in this Agreement shall prevent the consolidation of Odwalla
with, or its merger into, any other entity, or the sale by Odwalla of all or
substantially all of its assets, or the otherwise lawful assignment by Odwalla
of any rights or obligations under this Agreement. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors, and
permitted assigns, and shall not benefit any person or entity other than those
specifically enumerated in this Agreement.
12. Severability. If any provision of this Agreement, or its application to
any person, place, or circumstance, is held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced to the greatest extent permitted by law, and the remainder of
this Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
13. Attorneys' Fees. In any legal action, arbitration, or other proceeding
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
14. Injunctive Relief. If Xxxxxxxxxx breaches or threatens to breach any of
the covenants in Section 5 on Proprietary Information, the parties acknowledge
and agree that the damage or imminent damage to Odwalla's business or its
goodwill would be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, Odwalla shall be entitled
to injunctive relief against Xxxxxxxxxx in the event of any breach or threatened
breach of the above provisions by Xxxxxxxxxx, in addition to any other relief
(including damages) available to Odwalla under this Agreement or under law.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of California.
16. Interpretation. This Agreement shall be construed as a whole, according to
its fair meaning, and not in favor of or against any party. By way of example
and not in limitation, this Agreement shall not be construed in favor of the
party receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
12
13
17. Employee Acknowledgment. Xxxxxxxxxx acknowledges that he has had the
opportunity to consult legal counsel in regard to this Agreement, that he has
read and understands this Agreement, that he is fully aware of its legal effect,
and that he has entered into it freely and voluntarily and based on his own
judgment and not on any representations or promises other than those contained
in this Agreement.
The parties have duly executed this Agreement as of the date first written
above.
-------------------------------------
D. Xxxxxxx X. Xxxxxxxxxx
Odwalla, Inc.
-------------------------------------
By: Xxxxxxx Xxxxxxx
Its: Chairman, Board of Directors Compensation Committee
13
