EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of January 5, 2003 ("Effective Date"), by and between XXXXX BROTHERS,
INC., a Delaware corporation, (the "Company"), and XXXX X. Xxxxx, (the
"Executive").
WITNESSETH:
WHEREAS, Executive is currently employed with the Company and the Company
desires to continue retaining the services of Executive, and Executive desires
to remain employed by the Company, on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the Company and Executive, intending to be
legally bound, hereby agree as follows:
1. PRIOR EMPLOYMENT AGREEMENT. The Company and Executive agree that that
certain Employment Agreement between the Company and Executive dated as of
January 24, 1997, as amended, is hereby terminated and superceded by this
Agreement.
2. EMPLOYMENT. The Company agrees to employ Executive as President and
Chief Executive Officer of the Company, and Executive accepts such employment
and agrees to perform full-time employment services for the Company, subject
always to resolutions of the Board of Directors of the Company (the "Board"),
for the period and upon the other terms and conditions set forth in this
Agreement.
3. TERM. The term of Executive's employment hereunder (the "Term") shall
commence on the Effective Date, and shall continue until this Agreement is
terminated upon written notice by either party as set forth in Section 6 below,
for any reason whatsoever, this being an "at will" employment agreement.
Sections 6 and 7 of this Agreement shall govern the amount of any compensation
to be paid to Executive upon termination of this Agreement and his employment.
4. POSITION AND DUTIES.
4.1. SERVICE WITH THE COMPANY. During the Term of this Agreement,
Executive agrees to perform such executive employment duties as the Board shall
reasonably assign to him from time to time. In addition, during the period of
Executive's employment by the Company, Executive shall serve without any
additional compensation on the Company's Board upon nomination by the Board and
the vote of the shareholders.
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4.2. NO CONFLICTING DUTIES. Executive hereby confirms that he is under
no contractual commitments inconsistent with his obligations set forth in this
Agreement, and that during the Term of this Agreement, he will not render or
perform services, or enter into any contract to do so, for any other
corporation, firm, entity or person that are inconsistent with the provisions of
this Agreement or Executive's fiduciary obligations to the Company.
5. COMPENSATION AND BENEFITS.
5.1. BASE SALARY. As compensation for all services to be rendered by
Executive under this Agreement, the Company shall pay to Executive an annual
salary of $290,400.00 (the "Base Salary"). The Base Salary shall be subject to
review and change at the discretion of the Board (or its Compensation
Committee), however, the Base Salary may not be decreased without the written
consent of the Executive. The Company shall pay the Base Salary to Executive on
the Company's regularly scheduled paydays in accordance with the Company's
normal payroll procedures and policies.
5.2. BONUSES. Executive may be eligible for bonuses as determined by
the Board (or its Compensation Committee) in its discretion.
5.3. STOCK OPTIONS. Executive will be eligible for stock option grants
as determined by the Board (or its Compensation Committee) in its discretion.
Any existing written stock option agreements between Executive and the Company
remain in full force and effect in accordance with their terms.
5.4. PARTICIPATION IN BENEFIT PLANS. Executive shall be included to
the extent eligible thereunder in any and all plans of the Company providing
general benefits for the Company's executive employees, including, without
limitation, medical, dental, vision, disability, life insurance, 401(k) plan,
sick days, vacation, and holidays. Executive's participation in any such plan or
program shall be subject to the provisions, rules, and regulations applicable
thereto. In addition, during the Term of this Agreement, Executive shall be
eligible to participate in all non-qualified deferred compensation and similar
compensation, bonus and stock plans offered, sponsored or established by Company
on substantially the same or a more favorable basis as any other employee of
Company.
5.5. BUSINESS EXPENSES. In accordance with the Company's policies
established from time to time, the Company will pay or reimburse Executive for
all reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the presentment of
appropriate supporting documentation.
5.6. KEY MAN LIFE INSURANCE. During the Term of this Agreement, the
Company shall have the option of purchasing and paying the premiums for a "Key
Man" life insurance policy relating to Executive in a coverage amount determined
by the Company, and the Company shall be named as the beneficiary of such
policy. Executive represents and warrants that he currently is insurable for
such policy on an unrated basis and agrees to fully cooperate with the Company
in obtaining the policy.
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5.7. OTHER BENEFITS. During the Term of this Agreement, the Company
shall furnish to Executive the following benefits:
5.7.1. AUTOMOBILE ALLOWANCE. The Company shall pay Executive
$800.00 per month as an automobile allowance, less any required withholdings for
tax purposes (the "Monthly Car Allowance"). Executive shall procure and maintain
adequate insurance coverage on the automobile he uses for Company purposes.
Executive acknowledges that he may recognize taxable income in connection with
these payments and that these amounts will be reflected on Executive's W-2, if
required by law.
5.7.2. CELLULAR TELEPHONE. The Company shall furnish to Executive
a mobile or cellular telephone for Executive's use and shall pay all charges in
connection therewith (except Executive shall reimburse the Company for the
charges each month that are in excess of $200 of charges in such month that are
not accounted for by Executive as charges for the purposes of the Company). The
telephone to be furnished to Executive shall be agreed upon by the Company and
Executive from time to time.
6. TERMINATION.
6.1. DISABILITY. At the Company's election, Executive's employment and
this Agreement shall terminate upon Executive's becoming totally or permanently
disabled for a period of ninety (90) days or more in any twelve (12) month
period. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Executive's inability on
account of sickness or accident, whether or not job-related, to engage in
regularly or to perform adequately his assigned duties under this Agreement. A
reasonable determination by the Company of the existence of a disability shall
be conclusive for all purposes hereunder. In making such determination of
disability, the Company may utilize such advice and consultation as the Company
deems appropriate, but there is no requirement of procedure or formality
associated with the making of a determination of disability.
6.2. DEATH OF EXECUTIVE. Executive's employment and this Agreement
shall terminate immediately upon the death of Executive.
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6.3. TERMINATION FOR CAUSE. The Company may terminate Executive's
employment and this Agreement at any time for "Cause" (as hereinafter defined)
immediately upon written notice to Executive. As used herein, the term "Cause"
shall mean that Executive shall have in the reasonable judgment of the Board (i)
committed a criminal act or a single act of fraud, embezzlement, breach of
trust, or other act of gross misconduct, or (ii) violated any material written
Company policy or rules of the Company, unless cured by Executive within 30 days
following written notice thereof to Executive, or (iii) Executive's willful and
material violation of, or noncompliance with, any securities laws or stock
exchange listing rules, including, without limitation, the Xxxxxxxx-Xxxxx Act of
2002, provided that such violation or noncompliance resulted in material
economic harm to the Company, or (iv) refused to follow the reasonable written
directions given by the Board or its designee or breached any covenant or
obligation under this Agreement or other agreement with the Company, unless
cured by Executive within 30 days following written notice thereof to Executive.
6.4. RESIGNATION. Executive's employment and this Agreement shall
terminate on the earlier of the date that is one (1) month following the written
submission of Executive's resignation to the Company or the date such
resignation is accepted by the Company.
6.5. TERMINATION WITHOUT CAUSE. The Company may terminate Executive's
employment and this Agreement without cause upon written notice to Executive.
Termination "without cause" shall mean termination of employment on any basis
(including no reason or no cause) other than termination of Executive's
employment hereunder pursuant to Sections 6.1, 6.2, 6.3, or 6.4.
6.6. SURRENDER OF RECORDS AND PROPERTY. Upon termination of his
employment with the Company, Executive shall deliver promptly to the Company all
credit cards, computer equipment, cellular telephone, records, manuals, books,
blank forms, documents, letters, memoranda, notes, notebooks, reports, data,
tables, calculations or copies thereof, that are the property of the Company and
that relate in any way to the business, strategies, products, practices,
processes, policies or techniques of the Company, and all other property, trade
secrets and confidential information of the Company, including, but not limited
to, all documents that in whole or in part contain any trade secrets or
confidential information of the Company that in any of these cases are in his
possession or under his control, and Executive shall also remove all such
information from any personal computers that he owns or controls.
7. COMPENSATION UPON THE TERMINATION OF EXECUTIVE'S EMPLOYMENT.
7.1. In the event that Executive's employment and this Agreement are
terminated pursuant to Section 6.1 (Disability), 6.3 (Cause), or 6.4
(Resignation), then Executive shall be entitled to receive Executive's then
current Base Salary through the date his employment is terminated, but no other
compensation of any kind or amount.
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7.2. In the event Executive's employment and this Agreement are
terminated pursuant to Section 6.2 (Death), Executive's beneficiary or a
beneficiary designated by Executive in writing to the Company, or in the absence
of such beneficiary, Executive's estate, shall be entitled to receive
Executive's then current Base Salary through the end of the month in which his
death occurs, but no other compensation of any kind or amount.
7.3. Unless Section 8 applies, in the event Executive's employment and
this Agreement are terminated by the Company pursuant to Section 6.5 (Without
Cause), the Company shall pay to Executive, as a severance allowance, the
following amounts, but no other compensation or benefits of any kind: (a) his
then current monthly Base Salary and Executive's Monthly Car Allowance for the
twelve (12) month period following the date of termination, paid on the
Company's regular paydays throughout that 12-month period; (b) for Executive's
benefit, up to $10,000.00 for outplacement services for Executive with an
outplacement firm selected by Executive; (c) within thirty (30) days after
termination of Executive's employment, any amounts payable under any bonus plans
for which Executive is eligible to participate as of the date of the termination
of his employment, after pro rating all targets, quotas, and bonus payments as
of the termination date, regardless when such bonus may be due under the bonus
plan. Executive shall be entitled to receive these benefits and payments only if
he complies with his continuing obligations to the Company as set forth in this
Agreement.
7.4. In the event that Executive's employment and this Agreement are
terminated pursuant to 6.4 (Resignation) within twelve (12) months after a
Change in Control (as defined in Section 8.1 below), the Company shall pay, for
Executive's benefit, up to $10,000.00 for outplacement services for Executive
with an outplacement firm selected by Executive.
8. CHANGE IN CONTROL. In the event of both a Change in Control (as defined
below) and the occurrence of Good Reason (as defined below), the Company shall,
within thirty (30) days after occurrence of the last of these conditions, pay
Executive a lump sum amount equal to the sum of (a) 200% of Executive's then
current annual Base Salary; (b) Executive's Monthly Car Allowance for twelve
(12) months; and (c) any amounts payable under any bonus plans for which
Executive is eligible to participate as of the date of the Change of Control,
after pro rating all targets, quotas, and bonus payments as of the date of the
Change in Control, regardless when such bonus may be due under the bonus plan.
Executive shall be entitled to receive these benefits and payments only if he
complies with his continuing obligations to the Company as set forth in this
Agreement.
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8.1. DEFINITION OF CHANGE IN CONTROL. As used herein, a "Change in
Control" means both: (i) a change in the composition of the Board, as a result
of which less than a majority of the incumbent directors are directors who
either (x) had been directors of the Company on the date 24 months prior to the
date of the event that may constitute a Change in Control (the "original
directors") or (y) were elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the aggregate of the original
directors who were still in office at the time of the election or nomination and
the directors whose election or nomination was previously so approved; and (ii)
one of the following events has occurred: (a) the consummation of a merger or
consolidation of the Company with or into another entity or any other corporate
reorganization, if more than 30% of the combined voting power of the continuing
or surviving entity's securities outstanding immediately after such merger,
consolidation, or other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such merger, consolidation, or
other reorganization; or (b) the sale, transfer, or other disposition of all or
substantially all of the Company's assets. A transaction shall not constitute a
Change of Control if its sole purpose is to change the state of the Company's
incorporation or to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company's securities
immediately before such transaction.
8.2. DEFINITION OF GOOD REASON. As used herein, "Good Reason" means
any of the following: (i) termination by the Company of Executive's employment
and this Agreement without cause (as that term is defined in Section 6.5) within
three (3) months before, or within twelve (12) months after, a Change in
Control; (ii) a material reduction in Executive's title, status, authority, or
responsibility at the Company within twelve (12) months after a Change in
Control; (iii) within twelve (12) months after a Change in Control, there is a
material reduction in the benefits that were in effect for the Executive
immediately prior to the Change in Control, and comparable reductions have not
been made in the benefits of the other members of senior management of the
Company; (iv) except with Executive's prior written consent, relocation of
Executive's principal place of employment to a location outside Maricopa County,
Arizona within twelve (12) months following a Change in Control; or (v) any
material breach by the Company of its material obligations under this Agreement
within twelve (12) months following a Change in Control.
9. RELEASE. As a condition precedent to the Company's obligation to provide
Executive with the amounts set forth in Section 7.3, Section 7.4, or Section 8,
Executive must first execute and deliver to the Company a legal release, in form
and substance acceptable to the Company, in which Executive releases the Company
and its affiliates, directors, officers, employees, agents, and others
affiliated with the Company from any and all claims, including claims relating
to the Executive's employment with the Company, the termination of Executive's
employment, if applicable, and any facts constituting Good Reason.
10. VENTURES. If, during the Term of this Agreement, Executive is engaged
in or associated with the planning or implementing of any project, program, or
venture involving the Company and a third party or parties, all rights in the
project, program, or venture shall belong to the Company and shall constitute a
corporate opportunity belonging exclusively to the Company. Except as approved
in writing by the Board, Executive shall not be entitled to any interest in such
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project, program, or venture or to any commission, finder's fee, or other
compensation in connection therewith other than the Base Salary to be paid to
Executive as provided in this Agreement.
11. RESTRICTIONS.
11.1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
11.1.1. "TRADE SECRETS" means information that is not generally
known about the Company or its business, including without limitation about its
products, recipes, projects, designs, developmental or experimental work,
computer programs, data bases, know-how, processes, customers, suppliers,
business plans, marketing plans and strategies, financial or personnel
information, and information obtained from third parties under confidentiality
agreements. "Trade Secrets" also means formulas, patterns, compilations,
programs, devices, methods, techniques, or processes that derive independent
economic value, actual or potential, from not being generally known to the
public or to other persons who can obtain economic value from its disclosure or
use, and is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy. In particular, the parties agree and acknowledge that
the following list, which is not exhaustive and is to be broadly construed,
enumerates some of the Company's Trade Secrets, the disclosure of which would be
wrongful and would cause irreparable injury to the Company: (i) recipes for the
Company's specialty potato chips and other salted snack foods; (ii)
manufacturing processes for the foregoing products; (iii) pricing information;
(iv) product development, marketing, sales, customer, and supplier information
related to any Company product or service available commercially or in any stage
of development during Executive's employment with the Company; and (v) Company
marketing and business strategies, ideas, and concepts. Executive acknowledges
that the Company's Trade Secrets were and are designed and developed by the
Company at great expense and over lengthy periods of time, are secret,
confidential, and unique, and constitute the exclusive property of the Company.
11.1.2. "RESTRICTED FIELD" means the business of manufacturing,
developing, marketing, and/or selling specialty potato chips or other salted
snack foods. The Company is in the business of developing, manufacturing, and
selling these products in the Business Territory.
11.1.3. "NON-COMPETITION PERIOD" means a period of 12 months
after the termination of Executive's employment with the Company unless a court
of competent jurisdiction determines that that Period is unenforceable under
applicable law because it is too long, in which case the Non-Competition Period
shall be for the longest of the following periods that the court determines is
reasonable under the circumstances: 11 months, 10 months, 9 months, 8 months, 7
months, or 6 months
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11.1.4. "BUSINESS TERRITORY" means the entire United States,
unless a court of competent jurisdiction determines that that geographic scope
is unenforceable under applicable law because it is too broad, in which case the
Business Territory shall be amended by eliminating geographical areas and states
from the following list until the Business Territory is determined to be
reasonable: Alabama, Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington,
District of Columbia, West Virginia, Wisconsin, Wyoming, Maricopa County,
Arizona, Phoenix, Arizona. The parties acknowledge and agree that if any of the
geographic areas or States listed above are required by law to be eliminated, it
would be fair and appropriate to do so in the inverse order of the volume of
revenue received or projected to be received by the Company from such area or
State at the time of determination.
11.1.5. "NON-SOLICITATION PERIOD" means a period of 12 months
after the termination of Executive's employment with the Company.
11.2. NON-DISCLOSURE OBLIGATIONS. Executive shall not at any time,
during or after the Term of this Agreement, without the express written consent
of an officer of the Company, publish, disclose, or divulge to any person, firm
or corporation, or use directly or indirectly for the Executive's own benefit or
for the benefit of any person, firm, corporation or entity other than the
Company, any Trade Secrets of the Company.
11.3. NON-COMPETITION OBLIGATIONS. Executive acknowledges the
substantial amount of time, money, and effort that the Company has spent and
will spend in developing its products and other strategically important
information (including Trade Secrets), and agrees that during the
Non-Competition Period, Executive will not, alone or with others, directly or
indirectly, as an employee, agent, consultant, advisor, owner, manager, lender,
officer, director, employee, partner, stockholder, or otherwise, engage in any
Restricted Field activities in the Business Territory, nor have any such
relationship with any person or entity that engages in Restricted Field
activities in the Business Territory; provided, however, that nothing in this
Agreement will prohibit Executive from owning a passive investment of less than
one percent of the outstanding equity securities of any company listed on any
national securities exchange or traded actively in any national over-the-counter
market so long as Executive has no other relationship with such company in
violation of this Agreement. The Non-Competition Period set forth in this
Section 11.3 shall be tolled during any period in which the Executive is in
breach of the restriction set forth herein.
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11.4. AGREEMENT NOT TO SOLICIT CUSTOMERS. Executive agrees that during
Executive's employment with the Company hereunder and during the
Non-Solicitation Period, Executive will not, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others, solicit,
divert, or appropriate, or attempt to solicit, divert, or appropriate, to any
business that engages in Restricted Field activities in the Business Territory
(i) any person or entity whose account with the Company was sold or serviced by
or under the supervision of Executive during the twelve (12) months preceding
the termination of such employment, or (ii) any person or entity whose account
with the Company has been directly solicited at least twice by the Company
within the year preceding the termination of employment (the "Customers"). The
Non-Solicitation Period set forth in this Section 11.4 shall be tolled during
any period in which the Executive is in breach of the restriction set forth
herein.
11.5. AGREEMENT NOT TO SOLICIT EMPLOYEES. Executive agrees that during
Executive's employment with the Company hereunder and during the
Non-Solicitation Period, Executive will not, either directly or indirectly, on
Executive's own behalf or in the service or on the behalf of others solicit,
divert, or hire away, or attempt to solicit, divert, or hire away any person
then employed by the Company, nor encourage anyone to leave the Company's
employ. The Non-Solicitation Period set forth in this Section 11.5 shall be
tolled during any period in which the Executive is in breach of the restriction
set forth herein.
11.6. NON-DISPARAGEMENT. Executive agrees that during Executive's
employment with the Company hereunder and thereafter, he will not, either
directly or indirectly, disparage, defame, or besmirch the reputation,
character, or image of the Company or its products, services, employees,
directors, or officers.
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11.7. REASONABLENESS. Executive and the Company agree that the
covenants set forth in this Agreement are appropriate and reasonable when
considered in light of the nature and extent of the Company's business.
Executive further acknowledges and agrees that (i) the Company has a legitimate
interest in protecting the Company's business activities and its current,
pending, and potential Trade Secrets; (ii) the covenants set forth herein are
not oppressive to Executive and contain reasonable limitations as to time,
scope, geographical area, and activity; (iii) the covenants do not harm in any
manner whatsoever the public interest; (iv) Executive's chosen profession,
trade, or business is in manufacturing, developing, and marketing retail food
products (the "Profession") (v) the Restricted Field is only a very small or
limited part of the Profession, and Executive can work in many different jobs in
Executive's Profession besides those in the Restricted Field; (vi) the covenants
set forth herein do not completely restrain Executive from working in
Executive's Profession, and Executive can earn a livelihood in Executive's
Profession without violating any of the covenants set forth herein; (vii)
Executive has received and will receive substantial consideration for agreeing
to such covenants, including without limitation the consideration to be received
by Executive under this Agreement; (viii) if Executive were to work for a
competing company that engages in activities in the Restricted Field, there
would be a substantial risk that Executive would inevitably disclose Trade
Secrets to that company; (ix) the Company competes with other companies that
engage in Restricted Field Activities in the Business Territory, and if
Executive were to engage in prohibited activities in the Restricted Field within
the Business Territory, it would harm the Company; (x) the Company expends
considerable resources on hiring, training, and retaining its employees and if
Executive were to engage in prohibited activities during the Non-Solicitation
Period, it would harm the Company; and (xi) the Company expends considerable
resources acquiring, servicing, and retaining its Customers and if Executive
were to engage in prohibited activities during the Non-Solicitation Period, it
would harm the Company.
12. OTHER AGREEMENTS. Executive reaffirms Executive's obligations set forth
in the Employee Proprietary Rights Agreement attached hereto as EXHIBIT A.
Executive further acknowledges and agrees that he will comply with all other
Company policies and procedures, including, without limitation, the Company's
Xxxxxxx Xxxxxxx policy.
13. ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity (i) with or into which the Company may merge or consolidate, (ii) to
which the Company may sell or transfer all or substantially all of its assets or
(iii) of which 30% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with, the
Company. Upon such assignment by the Company, the Company shall attempt to
obtain the assignees' written agreement enforceable by Executive to assume and
perform, from and after the date of such assignment, the terms, conditions, and
provisions imposed by this Agreement upon the Company. After any such assignment
by the Company and such written agreement by the assignee, the Company shall be
discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be the Company for the purposes of all provisions of
this Agreement including this Section 13.
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14. OTHER PROVISIONS.
14.1. GOVERNING LAW. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Arizona
without reference to conflicts of law provisions thereof.
14.2. INJUNCTIVE RELIEF. Executive agrees that it would be difficult
to compensate the Company fully for damages for any violation of the provisions
of this Agreement. Accordingly, Executive specifically agrees that the Company
shall be entitled to temporary and permanent injunctive relief to enforce the
provisions of this Agreement. This provision with respect to injunctive relief
shall not, however, diminish the right of the Company to claim and recover
damages in addition to injunctive relief
14.3. PRIOR AGREEMENTS. This Agreement contains the entire agreement
of the parties relating to the subject matter hereof and supersedes all prior
agreements and understanding with respect to such subject matter, and the
parties hereto have made no agreements, representations, or warranties relating
to the subject matter of this Agreement which are not set forth herein.
14.4. WITHHOLDING TAXES AND RIGHT OF OFFSET. The Company may withhold
from all payments and benefits under this Agreement all federal, state, city, or
other taxes as shall be required pursuant to any law or governmental regulation
or ruling. Executive agrees that the Company may offset any payments owed to
Executive pursuant to this Agreement or otherwise against any amounts owed by
the Executive to the Company.
14.5. AMENDMENTS. No amendment or modification of this Agreement shall
be deemed effective unless made in writing signed by Executive and the Company.
14.6. NO WAIVER. No term or condition of this Agreement shall be
deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived, and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
14.7. SEVERABILITY. To the extent any provision of this Agreement
shall be invalid or unenforceable, it shall be considered deleted from this
Agreement and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect.
14.8. SURVIVABILITY. Sections 7, 8, 9, 11, 12, 13, and 14 of this
Agreement shall survive the termination of this Agreement and the termination of
Executive's employment with the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth above.
"COMPANY": XXXXX BROTHERS, INC.
-----------------------------
By:
Title:
"EXECUTIVE":
-----------------------------
XXXX X. XXXXX
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EXHIBIT A
XXXXX BROTHERS, INC. PROPRIETARY RIGHTS AGREEMENT
THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS WHICH ARE BINDING. PLEASE READ IT
IN FULL BEFORE YOU SIGN
I recognize the importance of protecting the Company's relationships and its
rights to inventions, discoveries, ideas, confidential information and other
intellectual property, and for good and valuable consideration which I have
received, including my engagement to provide services to the Company as an
independent contractor or at-will employee (in either event referred to
hereinafter as my "Relationship with the Company,") or the continuation of my
Relationship with the Company, I agree to the following:
1. DEFINITIONS. For the purposes of this Agreement:
(a) "COMPANY" means Xxxxx Brothers, Inc., and its subsidiaries.
(b) "CREATION" means any invention, discovery, idea, concept, design,
process, work of authorship, development or improvement (whether or not subject
to copyright or patent protection and whether or not reduced to practice by me):
(i) relating to any past, present or reasonably anticipated business of the
Company and which is or was created or otherwise developed during my
Relationship with the Company, (ii) which is or was created or otherwise
developed while performing work for the Company, or (iii) which is or was
created or otherwise developed at any time using equipment, supplies,
facilities, information or proprietary rights or other property of the Company.
(c) "COMPUTER INFORMATION" means all information and communications
created, received, or stored on or passed through the Company's computer and
communications systems. Among other things, Computer Information includes all of
my files, voice mail and e-mail.
(d) "CONFIDENTIAL INFORMATION" means information (including information
created by me) which is not generally known about the Company or its business,
including without limitation about its products, projects, designs,
developmental or experimental work, computer programs, software, data bases,
know-how, processes, formulas, recipes, manufacturing processes, customers,
suppliers, business plans, marketing plans and strategies, finances, or
personnel, and information obtained from third parties under confidentiality
agreements.
2. OWNERSHIP OF CREATIONS
(a) INVENTIONS RETAINED. I represent that all matters which I have created
or otherwise developed prior to my Relationship with the Company or my signing
this Agreement, which I wish to exclude from my obligations to the Company under
this agreement, are listed below. If no items are listed below, I represent that
there are no such matters to be excluded.
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(b) ASSIGNMENT OF CREATIONS. I hereby agree to hold in trust for the sole
right and benefit of the Company and assign to the Company all my right, title
and interest in and to any and all Creations created or otherwise developed,
alone or in conjunction with others. I further agree to assign to any third
party, including the United States government, all my right, title and interest
in and to any and all Creations whenever such assignment is requested by a
contract between the Company and such third party.
(c) MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and
current written records of all Creations made by me, in the form of notes,
sketches, drawings and other notations which may be specified by the Company,
which records shall be available to and remain the sole property of the Company
at all times.
(d) DISCLOSURE OF CREATIONS AND FILINGS. I agree to promptly disclose to
the Company in writing all Creations created or otherwise developed by me alone
or in conjunction with others, as well as any and all patent applications or
copyright registrations filed by me during and within one (1) year after
termination of my Relationship with the Company.
(e) ASSISTANCE. During and after the period of my Relationship with the
Company, I agree that I will give the Company all assistance it reasonably
requires (at the Company's expense) to file for, maintain, protect and enforce
the Company's patents, copyrights, trademarks, trade secrets and other rights in
Creations, in any and all countries. To that end I will sign documents and do
other acts which the Company may determine necessary or desirable including,
without limitation, giving evidence and testimony in support of the Company's
rights hereunder.
(f) INTELLECTUAL PROPERTY RIGHTS IN WORKS OF AUTHORSHIP. I acknowledge and
agree that any intellectual property rights in Creations which are works of
authorship belong to the Company and are "works made for hire" within the
definition of section 101 of the United States Copyright Acts of 0000, Xxxxx 00,
Xxxxxx Xxxxxx Code. The Company or any of its direct or indirect licensees shall
not be obligated to designate me as author of any design, software, firmware,
related documentation, or any other work of authorship when distributed publicly
or otherwise, nor to make any distribution.
3. CONFIDENTIAL INFORMATION
(a) OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information
which I create or otherwise develop or which comes into my possession or that
previously came into my possession shall be and remain the exclusive property of
the Company.
(b) NO DISCLOSURE OF CONFIDENTIAL INFORMATION. Unless authorized in writing
by the Company, I will maintain all Confidential Information in confidence and,
except as necessary in conjunction with my work for the Company, will not copy
or make notes of, divulge to anyone outside the Company or use any of the
Confidential Information for my own or another's benefit, either during or after
the term of my Relationship with the Company. I agree that I will promptly
disclose to the Company all Confidential Information developed by me. I will
abide by any policies and procedures adopted from time to time by the Company to
facilitate such disclosures.
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(c) RETURNING THE COMPANY DOCUMENTS AND TANGIBLE PROPERTY. Upon request of
the Company and, in any event, upon termination of my Relationship with the
Company, I will promptly surrender and deliver to the Company (and will not keep
in my possession or deliver to anyone else) and agree not to use any
Confidential Information, records, data, notes, reports, proposals, lists,
correspondence, computer code, specifications, drawings, blueprints, sketches,
flow diagrams, materials, equipment, devices or any other documents or property
(including photocopies or other reproductions of any of the aforesaid items) of
the Company.
(d) CONFIDENTIAL INFORMATION OF THIRD PARTIES. During my Relationship with
the Company I may receive, under non-disclosure agreements agreed to by
authorized representatives of the Company, information claimed by third parties
to be their confidential information. I agree that I will respect such
agreements and will not disclose such information to any person or organization,
except as is necessary in carrying out my work for the Company consistent with
the Company's agreement with such third parties. At the request of the Company
and, in any event, upon the termination of my Relationship with the Company, I
will promptly surrender to the Company any such information.
4. NON-USE OF PROPERTY OF THIRD PARTIES. During my Relationship with the
Company, I will not improperly use or disclose any confidential or proprietary
information or property of any third party (including any former employer).
5. NO PRIOR RESTRICTIONS. I hereby represent and warrant that I am free to enter
into or continue my Relationship with the Company and that there are no
contracts or restrictive covenants preventing full performance of my duties.
6. LIMITATIONS ON COMPETITIVE ACTIVITIES DURING RELATIONSHIP. During my
Relationship with the Company, I will not, alone or with others, directly or
indirectly, work on, plan, prepare for, organize or engage in any consulting,
employment or other business activity (whether or not for compensation) that is
competitive with the business in which the Company is involved or may hereafter
become involved, nor will I engage in any other activity that conflicts with my
obligations to the Company. Prior to working on, planning, preparing for,
organizing or engaging in any consulting, employment or other business activity
outside my Relationship with the Company, I will consult my manager or
supervisor to ensure that no conflict of interest with the Company exists.
7. PUBLISHING. Unless approved by the Company in writing, I will not publish
anything in the Company's business areas of interest during my Relationship with
the Company.
8. NO GUARANTEE OF EMPLOYMENT. I expressly acknowledge and agree that this is
not an agreement by the Company to employ me, or otherwise engage my services,
for any period, and unless otherwise expressly agreed in writing between me and
the Company, my Relationship with the Company may be terminated at any time,
with or without cause by either myself or the Company. All of the terms of this
Agreement shall survive any termination of my Relationship with the Company.
9. NO EXPECTATION OF PRIVACY. The Company retains the right, with or without
cause or notice to me, to access or monitor all Computer Information, including
but not limited to my e-mail and voice mail. I agree that I have no reasonable
expectation of privacy in the Computer Information and expressly waive any right
of privacy or similar right in the Computer Information. I agree that Computer
Information is the sole and exclusive property of the Company. Any of my files,
e-mail or other Computer Information stored on the Company's computer and/or
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communications systems shall become the property of the Company. I agree that I
shall not install or use encryption software on any of the Company's computers
without first obtaining written permission from my manager or supervisor. I
agree that I shall not use passwords or encryption keys that are unknown to my
manager or supervisor.
10. MISCELLANEOUS
(a) SEVERABILITY. If any provision of this Agreement or portion thereof is
determined by a court of competent jurisdiction to be wholly or partially
unenforceable for any reason, such provision or portion thereof shall be
considered separate from the remainder of this Agreement, which shall remain in
full force and effect.
(b) WAIVER. The Company's waiver or failure to enforce any violation or
provision of this Agreement shall not constitute a waiver of its rights
hereunder with respect to any other or continuing violation or provision of this
Agreement, and shall be effective only if in writing, signed by the Company, and
then only in the specific instance and for the specific purpose given.
(c) GOVERNING LAW. This agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Arizona. I agree that suit
to enforce any provision of this Agreement or to obtain any remedy with respect
hereto may be brought in Superior Court, Maricopa County, Arizona, and for this
purpose I hereby expressly and irrevocably consent to the jurisdiction of this
court.
(d) SUCCESSORS. This Agreement shall be for the benefit of and be binding
upon: i) my executors, heirs, legatees and personal representatives, and ii) the
successors and assigns of the Company.
(e) ENTIRETY OF AGREEMENT. This Agreement supersedes all prior agreements
concerning Creations, Computer Information, Confidential Information, and the
other matters referred to herein between myself and the Company. No amendment or
modification of this Agreement shall be deemed effective unless made in writing
signed by me and the Company.
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EMPLOYEE OR INDEPENDENT CONTRACTOR:
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Signature
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Print Name
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Date
Accepted and agreed:
XXXXX BROTHERS, INC.
By:
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Name:
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Its:
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