Exhibit 10.21
CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
This Confidentiality Agreement and Noncompetition Agreement is made and
entered into this _____ day of __________, by and between X. X. Xxxxxxxx
Worldwide, Inc. and _______________, an individual and resident of the State of
Minnesota (hereinafter referred to as "Employee" or "I").
I.
RECITALS
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A. I have been employed by the Company in a significant executive capacity
and I wish to continue such employment.
B. I have previously entered into a Management-Employee Agreement dated
__________, in which I agreed to retain the confidentiality of the Company's
confidential information and not to compete with the Company during and
subsequent to my employment.
C. The Company has had in place for a number of years a book value stock
purchase program pursuant to which certain employees of the Company have had the
opportunity to purchase shares of the Company's common stock ("common stock") at
book value from departing employees, subject to a restriction that upon
termination of employment the employee would sell such common stock at book
value. All outstanding common stock is presently subject to repurchase by the
Company or its designee at book value. Stock purchased through this program is
referred to as "book value stock." Approximately 700 employees of the Company
own book value stock. Through the Company's book value stock purchase program,
I have had the opportunity to purchase, and have made substantial purchases of,
common stock at book value. On the date hereof, I (or accounts or trusts for
the benefit of me, my spouse or my family) hold __________ shares of book value
stock.
D. The Company has had in place for a number of years programs pursuant to
which certain employees of the Company were awarded common stock subject to
certain forfeiture provisions ("restricted stock"). Approximately 80 employees
of the Company own restricted stock. Through the Company's restricted stock
programs, in particular the Central Office Management Incentive Program, I have
received awards of significant amounts of restricted stock. Under this program
I automatically forfeit all rights to such restricted stock or to certain
repurchase payments if I were to compete with the Company. On the date hereof,
I hold __________ shares of restricted stock.
E. The Company is planning an initial public offering in which
restrictions on restricted stock held by employees and former employees of the
Company would lapse, and such stock would be offered to the public. In
connection with the offering, restrictions on the book value stock would also
lapse. It is anticipated that the initial public offering price for the
restricted stock will be approximately four times book value, and it is hoped
that the trading price of the common stock will trade at an even greater
multiple to book value in the future. Accordingly, the public offering will
provide a great financial benefit to employees of the Company holding restricted
stock and book value stock.
F. The Company is willing to proceed with the public offering only if all
executive officers of the Company enter into an agreement by which a portion of
the book value stock retained by them is subjected to restrictions similar to
those imposed on the restricted stock held by them. I acknowledge that the
purchasers of stock in the initial public offering will rely on the existence of
these restrictions in making their purchase of stock and that the public
offering will have a substantial economic benefits to me and to other employees
of the Company. I am willing to subject __________ shares of my book value
stock to such a restriction.
G. The lapse of restrictions on my restricted stock, the lapse of
restrictions on my book value stock (other than those imposed by this
Agreement), the benefit to all employees of the Company of the public offering,
the reliance by purchasers of the stock in the public offering on this Agreement
and my continued employment are adequate and sufficient consideration for this
Agreement.
II.
DEFINITIONS
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A. "Confidential information" shall mean:
1. All information, written or oral, not generally known, or
proprietary to the Company, about the Company's transportation, logistics,
contracting brokerage, marketing, accounting, merchandising, and information
gathering techniques and methods, and all accumulated data, listings, or
similar recorded matter used or useful in produce and transportation
operations, including, but not limited to the insurance and carrier
information file, business forms, and marketing aids.
2. All information disclosed to me, or to which I have access during
the period of my employment, for which there is any reasonable basis to be
believed is, or which appears to be treated by the Company as Confidential
Information.
B. "Competing business" shall mean any person, business, firm,
undertaking, company or organization of any kind other than the Company, which:
1. Is engaged in, or is about to become engaged in, the produce or
transportation industries or engaged in the produce distribution or
transportation contracting business; or
2. Regardless of the nature of its business, either competes directly
or indirectly with Company in the purchase, sale and distribution of produce
and/or in contracting, arranging, providing, procuring, furnishing or
soliciting transportation services; or
3. Has employed or potentially could employ the Company's services in
produce distribution or transportation contracting matters.
C. "Customer" shall mean any person, business, firm, undertaking, company
or organization of any kind engaged in the produce or transportation industries
as a shipper, receiver or carrier.
III.
NATURE OF EMPLOYEE'S ACTIVITIES
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A. I am aware and acknowledge that the Company has developed a special
competence in the produce and transportation industry and has accumulated
confidential and/or proprietary information, not generally known to others, more
and better information about growers, shippers, truckers, trucking equipment,
customers, purchasing agents and similar matters which are of unique value in
the conduct and growth of the Company's business. This Confidential Information
has enabled the Company to conduct its business with unusual success and thus
afforded unusual employment opportunities to its employees.
B. In the course of my employment, I have been and wish to continue to be
employed in a position or positions with the Company in which I may receive or
contribute to Confidential Information as defined above. It is my desire to
continue progressing in the Company in sales and/or management capacities and I
recognize that my optimum progression and specialization cannot take place
unless Confidential Information is entrusted to me.
C. I acknowledge that in the course of carrying out, performing and
fulfilling my responsibilities to the Company, I have access to and have been
entrusted with Confidential Information and I recognize that disclosure of such
Confidential Information to the competitors of the Company or to the general
public would be highly detrimental to the Company. I further acknowledge that
in
the course of performing obligations to the Company, I will be a
representative of the Company to many of the Company's customers and in some
instances practically the Company's sole and exclusive contact with the
customer and as such will be significantly responsible for maintaining or
enhancing the business and/or good will of the Company with such customers.
IV.
AGREEMENT TO MAINTAIN CONFIDENTIAL INFORMATION
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A. Except as may be required in the performance of my employment duties
with the Company I will not, during or after the term of my employment, disclose
Confidential Information to any other person or entity or use confidential
information for my own benefit or for the benefit of another, unless the Company
expressly directs me to do so.
B. Upon termination of my employment with the Company, I will deliver
within 24 hours to the Company, all Company property, including but not limited
to originals and copies of drawings, specifications, reports, client, supplier,
customer and carrier lists, financial information, computer hard drive or
diskettes, computer software, and all other material in my possession or
control, regardless of its form.
V.
NONCOMPETITION AGREEMENT
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A. During my employment with the Company, I will devote my full time and
energies to furthering the Company's business and I will not pursue any other
business activity without the Company's prior written consent.
B. I will not, during the term of my employment and for a period of two
years following the termination of my employment, whether voluntary or
involuntary, directly or indirectly solicit, sell or render services to or with
any customer or prospective customer of the Company with whom I have had contact
or on whose account I have worked, at any time during my employment with the
Company on my own behalf or for the benefit of any competing entity.
C. I will not, during the term of my employment and for a period of two
years following the termination of my employment, whether voluntary or
involuntary, directly or indirectly solicit any of the Company's employees or
independent contractors for the purpose of hiring them or inducing them to leave
their employment with the Company.
D. I will not during the term of my employment and for a period of two
years following the termination of my employment whether voluntary or
involuntary, directly or indirectly solicit, cause, or attempt to cause any
customer
of the Company to divert, terminate, limit or in any manner modify or fail to
enter into any actual or potential business relationship with the Company.
VI.
REMEDIES
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A. If I violate any terms of this Agreement, I agree that the Company
shall be entitled to liquidated damages in the amount of __________ shares of
common stock (the "Restricted Stock"). Accordingly, I agree that the Restricted
Stock will continue to be in uncertificated form on the books of the Company,
that such Restricted Stock will be part of a segregated account, that any advice
by the Company with respect to such Restricted Stock (or any certificate
representing the Restricted Stock) shall contain an appropriate legend of the
liquidated damages provision contained herein and that the Company is authorized
and directed upon any violation of any term of this Agreement to transfer the
Restricted Stock into its own name on the books of the Company.
B. In addition to, and not to the exclusion of liquidated damages, if I
violate any term of this Agreement, I agree that the Company shall be entitled
to injunctive relief and/or any other remedy allowed by law or equity and
collect from me reasonable attorneys' fees and costs incurred in bringing any
action against me or otherwise enforcing the terms of this Agreement.
VII.
GENERAL
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A. I understand that this Agreement constitutes the entire agreement
between the Company and me regarding confidentiality and noncompetition and that
it supersedes all prior agreements, if any, relating to this subject matter.
This Agreement may be amended or altered only by written agreement between the
Company and me.
B. I understand that this Agreement and the rights and obligations
thereunder shall not be assignable in whole or in part by either party without
the prior written consent of the other party.
C. I understand that to the extent that any provision of this Agreement
shall be determined to be invalid or unenforceable, such provision shall be
deleted from the Agreement and the validity and enforceability of the remainder
of such a provision of this Agreement shall remain unaffected.
D. I understand that this Agreement is not intended nor does it alter the
at will nature of the employment relationship otherwise enjoyed by the Company
and me.
E. I understand that this Agreement shall be interpreted according to the
laws of the State of Minnesota.
_________________________
Employee
Subscribed and sworn to before me
this _____ day of __________, 1997.
_________________________
Notary Public
X. X. XXXXXXXX WORLDWIDE, INC.
By _____________________
Its _____________________
Subscribed and sworn to before me
this _____ day of __________, 1997.
_________________________
Notary Public
