EXHIBIT 10.5
EMPLOYMENT AGREEMENT
BY AND BETWEEN
LA JOLLA FRESH SQUEEZED COFFEE COMPANY, INC.
AND
XXXXXXX X. XXXXX
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
December 5, 2001 by and between LA JOLLA FRESH SQUEEZED COFFEE COMPANY, INC.
(the "Company"), a Washington corporation, and Xxxxxxx X. Xxxxx ("Executive").
Company and Executive are hereinafter collectively referred to as the "Parties,"
and individually referred to as a "Party."
WHEREAS, the Parties desire to enter into this Agreement, which sets
forth the terms and conditions of the employment relationship of Executive with
Company;
NOW, THEREFORE, in consideration of the foregoing Recital, the mutual
promises and covenants set forth herein, and other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties, intending to
be legally bound, hereby agree as follows:
1. EMPLOYMENT.
1.1. Company hereby agrees to employ Executive and Executive hereby
accepts such employment by Company upon the terms and conditions
set forth in this Agreement.
1.2. Executive shall serve as Vice-President of Product Development of
Company and shall report to the Chief Executive Officer.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE.
2.1. FULL ENERGIES. During the Term, Executive shall devote his full
business energies, interest, abilities and productive time to the
proper and efficient performance of his duties and to Company's
business and affairs. The principal place of employment of
Executive shall be at Company's principal executive offices, which
are currently in San Diego, California.
2.2. COMPANY POLICIES. The employment relationship between the parties
shall be governed by the general employment policies and practices
of Company, including but not limited to those relating to
protecting confidential information; provided, however, that when
the terms of this Agreement differ from or are in conflict with
Company's general employment policies or practices, this Agreement
shall control.
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3. EMPLOYMENT PERIOD.
3.1. EMPLOYMENT PERIOD. The period during which Executive shall be
employed hereunder (the "Employment Period") shall commence on
January 2, 2002 (the "Effective Date") and shall end on the fifth
anniversary thereof; provided, however, that commencing on the
fourth anniversary of the Effective Date and on each subsequent
anniversary of the Effective Date (each such anniversary, a
"Renewal Date"), the Employment Period shall automatically be
extended for one additional year. The Employment Period is subject
to the termination provisions provided in Section 5 below.
4. COMPENSATION.
4.1. BASE SALARY. Company shall pay Executive a base salary of $144,000
per year ("Base Salary"), payable in regular periodic payments in
accordance with Company policy. The Base Salary shall be prorated
for any partial year of employment on the basis of a 365-day
fiscal year. The Base Salary may be increased from time to time by
mutual agreement of Executive and Company.
4.2. CUSTOMARY TAXES. All of Executive's compensation shall be subject
to customary withholding taxes and any other employment-related
taxes as are commonly required to be collected or withheld by
Company.
4.3. EXPENSES. During the Term, Company agrees to reimburse Executive
for his reasonable and necessary business expenses related to his
employment hereunder in accordance with Company's standard
policies and requirements regarding expense reimbursement.
Executive shall also be reimbursed, subject to the approval of the
Chief Executive Officer, for his reasonable expenses he incurs in
relocating his domicile to within a reasonable distance of the
principal executive offices of Company as may be necessary from
time to time.
4.4. BENEFITS. Executive shall, in accordance with Company policies and
the terms of applicable plan documents, be eligible to participate
in benefits under any executive benefit plan or arrangement which
may be in effect from time to time and made available to its
executive or key management employees. Company may modify or
cancel its benefit plan(s) as it deems necessary.
4.5. GRANT OF STOCK. Company shall grant Executive three million forty
thousand six hundred and forty-six (3,040,646) shares (subject to
adjustment for stock splits, dividends, recapitalizations and the
like) of Company's restricted common stock on or about the
Effective Date of this Agreement (the "Shares").
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4.6. REPURCHASE RIGHT. The shares granted in Section 4.5 above shall be
subject to the right of Company to repurchase the Shares in the
event of a termination by Company for Cause or by Executive
without Good Reason (as such terms are defined below) at a
per-share price of par value ($0.001) ("Right of Repurchase")
according to the following terms:
a. VESTING SCHEDULE. The Company's Right of Repurchase shall
lapse on the last day of each month, beginning with the first
full month after the Effective Date, as to 1/60th of the
Shares until all 3,040,646 Shares have fully vested and
Company's Right of Repurchase has been fully extinguished.
For purposes of this Agreement, shares which still have a
Right of Repurchase shall be called "Unvested Shares" and
shares for which the Right of Repurchase has lapsed shall be
call "Vested Shares." The certificate representing Unvested
Shares shall be kept in the custody of Company at its
principal place of business. Nothing in this Agreement shall
limit any of Executive's voting rights for either Vested or
Unvested Shares.
b. PROCEDURE FOR ACCRUING AND TRANSFERRING VESTED SHARES. On or
about January 7th of each year, the certificate representing
Unvested Shares in the custody of Company shall be reissued
as two certificates: one shall represent the shares that have
vested and accrued during the previous calendar year (01/01
to 12/31) and shall promptly be delivered to Executive and
the other certificate shall represent the remaining Unvested
Shares, if any, and shall remain in the custody of Company.
Notwithstanding the foregoing, at any time, upon Executive's
written request, Company shall perform such issuance of any
accrued Vested Shares provided that Executive bears the
reasonable expense of such issuance.
4.7. ACCELERATION DUE TO CHANGE IN CONTROL. Notwithstanding anything in
this Agreement to the contrary, upon a Change in Control as
defined herein, the Right of Repurchase provided in Section 4.6
above shall lapse as to all Unvested shares and all shares granted
in Section 4.5 shall become fully vested. For purposes of this
Agreement, a "Change in Control" of Company shall mean:
a. The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of
Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting
securities of Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control: (A)
any acquisition directly from Company, (B) any acquisition by
Company, (C) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by Company or any
corporation controlled by Company or (D) any acquisition by
any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c); or
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b. Individuals who, as of the date hereof, constitute the board
of directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the board; provided,
however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election
by Company's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the board; or
c. Approval by the shareholders of Company of a reorganization,
merger, share exchange or consolidation (a "Business
Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 80% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the
corporation resulting from such Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the company through one or
more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(ii) no Person (excluding any employee benefit plan (or
related trust) of Company or such corporation resulting from
such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership
existed prior to the Business Combination and (iii) at least
a majority of the members of the board of directors of the
corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution
of the initial agreement, or of the action of the board,
providing for such Business Combination; or
d. Approval by the shareholders of Company of (i) a complete
liquidation or dissolution of Company or (ii) the sale or
other disposition of all or substantially all of the assets
of Company, other than to a corporation, with respect to
which following such sale or other disposition, (A) more than
80% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned directly or indirectly, by all or
substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other
disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
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(B) less than 20% of, respectively, the then outstanding
shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, by any Person (excluding any employee benefit
plan (or related trust) of Company or such corporation),
except to the extent that such Person owned 20% or more of
the Outstanding Company Common Stock or Outstanding Company
Voting Securities prior to the sale or disposition and (C) at
least a majority of the members of the board of directors of
such corporation were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the
action of the board, providing for such sale or other
disposition of assets of Company or were elected, appointed
or nominated by the board.
4.8. ACCELERATION DUE TO SUCCESSFUL REPAYMENT OF OFFERING DEBT. Company
contemplates entering into a private placement debt offering to
raise an estimated one million dollars in bridge funds followed by
four to five million dollars in five-year debt, which may be
prepaid by Company. In the event that such an offering is
successfully completed, all Executive's Shares shall immediately
vest and the Right of Repurchase shall be fully extinguished upon
Company repaying such debt in full.
4.9. TAX CONSEQUENCES. Executive understands and acknowledges that he
may suffer adverse tax consequences as a result of the grant of
equity compensation provided under this Agreement and is advised
to consult with a qualified tax consultant in connection with such
compensation. Executive warrants that he is not relying on Company
or its agent, employees or assigns for any tax advice.
4.10. RESTRICTED NATURE OF SECURITIES. Executive understands and
acknowledges that the Shares granted in Section 4.5 shall not be
registered under the Securities Act of 1933, as amended (the
"Act"), at the time of issuance and shall be subject to federal
and state laws including laws that restrict the transferability of
the Shares.
4.11. STOCK OPTION PLAN. Executive shall be eligible to participate in
any stock option or other equity compensation plans generally made
available to its executives or key management.
4.12. BONUS. Executive shall be eligible to participate in the grant of
bonuses or bonus and/or profit sharing plans for the benefit of
Company's executives and key management, which the board of
directors of Company, at its pleasure, may from time to time
implement.
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5. TERMINATION.
5.1. DEATH. The Executive's employment shall terminate automatically
upon his death during the Employment Period.
5.2. DISABILITY. If the board makes a determination in good faith that
Executive has suffered a Disability, as defined below, within the
Employment Period, it may terminate Executive's employment subject
to the notice provisions in Section 5.5 below. For purposes of
this Agreement, "Disability" shall mean the absence of Executive
from Executive's duties with Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent
by a physician selected by Company or its insurers and acceptable
to Executive or Executive's legal representative (such acceptance
not to be withheld unreasonably).
5.3. TERMINATION FOR CAUSE. The Company may terminate Executive's
employment during the Employment Period for Cause (as defined
below) subject to notice requirements in Section 5.5. For purposes
of this Agreement, "Cause" shall mean the occurrence or existence
of any of the following with respect to Executive, as determined
by a majority of the disinterested directors of the board:
a. a material breach of, or the willful failure or refusal by
Executive to perform and discharge his duties,
responsibilities or obligations under this Agreement (other
than by reason of death or physical or mental disability), OR
b. the willful engaging by Executive in illegal conduct, gross
misconduct or gross negligence which is materially and
demonstrably injurious to Company.
For purposes of this Section 5.3, no act or failure to act, on the
part of Executive, shall be considered "willful" unless it is
done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive's action or omission was in the
best interests of Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the board
shall be conclusively presumed to be done, or omitted to be done,
by Executive in good faith and in the best interests of Company.
5.4. GOOD REASON. Executive may voluntarily terminate his employment
with Company for Good Reason subject to notice requirements in
Section 5.5. For purposes of this Section 5.4, "Good Reason" shall
mean:
a. the re-assignment of Executive to any non-executive position;
b. any failure by Company to comply with any of the provisions
of Section 4 of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad
faith and which is promptly remedied by Company after receipt
of notice thereof given by Executive; OR
c. any failure by Company to comply with and satisfy Section
12.1 of this Agreement.
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5.5. NOTICE OF TERMINATION. Any termination of this Agreement (or of
severance payments) other than by reason of death shall be
communicated by a Notice of Termination to the other Party hereto
given in accordance with Section 13 of this Agreement. For
purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the
provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice,
specifies the Date of Termination as defined below in Section 5.6.
The failure by Executive or Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of
Executive or Company, respectively, hereunder or preclude
Executive or Company, respectively, from asserting such fact or
circumstance in enforcing Executive's or Company's right
hereunder.
5.6. DATE OF TERMINATION. In the event that Executive's employment is
terminated, the "Date of Termination," which shall end the
Employment Period, shall be:
a. if terminated by Company for Cause, the date of receipt by
Executive of the Notice of Termination or any later date
specified therein;
b. if terminated by Company other than for Cause (including due
to Disability), thirty (30) days from the date of receipt by
Executive of the Notice of Termination or any later date
specified therein;
c. if terminated by Executive for Good Reason, thirty (30) days
from the date of receipt by Company of the Notice of
Termination;
d. if terminated by Executive other than for Good Reason, the
earlier of the date of receipt by Company of the Notice of
Termination or the date on which Executive substantially
ceased to perform his duties and responsibilities hereunder;
AND
e. if terminated due to death, the date of Executive's death.
6. COMPANY'S OBLIGATIONS UPON TERMINATION.
6.1. GOOD REASON; WITHOUT CAUSE. In the event of a termination of this
Agreement by Executive for Good Reason or by Company without Cause
(and excluding terminations due to death or Disability):
a. Company shall pay to Executive all accrued salary, vacation
time, and benefits under any applicable benefit plans of
Company through the Date of Termination;
b. upon the execution by Executive of a release substantially in
the form of Exhibit B attached hereto, Company shall pay to
Executive severance pay in an amount equal to twelve (12)
months of his then base salary, less standard withholdings
for tax and social security purposes, payable over a twelve
(12) month term in monthly pro-rata payments commencing on
the Date of Termination (see Section 8 below regarding
termination of severance pay);
c. Company shall promptly deliver to Executive any accrued
Vested Shares as described in Sections 4.5 and 4.6;
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d. 500,000 Unvested Shares as described in Sections 4.5 and 4.6
shall immediately vest with any and all Right of Repurchase
on such shares being extinguished and a certificate
representing such shares shall be promptly delivered to
Executive except that in no event shall Executive receive
Shares under this Agreement in excess of the 3,040,646 Shares
granted in Section 4.5 and so such 500,000 Shares shall be
reduced accordingly as necessary; and
e. Company shall pay to Executive a prorated bonus for the year
in which the termination occurs for any then applicable bonus
or bonus plan payable in accordance with Company's normal
bonus payment policy, but in no event later than 90 days
after the end of the fiscal year in which Executive's
employment is terminated.
6.2. CAUSE; OTHER THAN FOR GOOD REASON, DEATH OR DISABILITY. In the
event of a termination of this Agreement by Company for Cause or
by Executive without Good Reason (and excluding terminations due
to death or Disability), Company shall pay to Executive all
salary, vacation time, Vested Shares, and benefits under any
applicable benefit plans of Company accrued and due through the
Date of Termination and nothing more.
6.3. DEATH. In the event of a termination of this Agreement due to the
death of Executive, including death due to suicide:
a. Company shall pay to Executive's legal representatives all
salary, vacation time, and benefits under any applicable
benefit plans of Company accrued and due through the Date of
Termination including, without limitation, benefits at least
equal to the most favorable benefits provided by Company to
the estates and beneficiaries of peer executives of Company;
b. upon the execution by Executive's legal representatives of a
release substantially in the form of Exhibit B attached
hereto, Company shall pay to Executive's legal
representatives severance pay in an amount equal to twelve
(12) months of his then base salary, less standard
withholdings for tax and social security purposes, payable
over a twelve (12) month term in monthly pro-rata payments
commencing on the Date of Termination (see Section 8 below
regarding termination of severance pay);
c. Company shall promptly deliver to Executive's legal
representatives any accrued Vested Shares as described in
Sections 4.5 and 4.6;
d. 500,000 Unvested Shares as described in Sections 4.5 and 4.6
shall immediately vest with any and all Right of Repurchase
on such shares being extinguished and a certificate
representing such shares shall be promptly delivered to
Executive's legal representatives except that in no event
shall Executive receive Shares under this Agreement in excess
of the 3,040,646 Shares granted in Section 4.5 and so such
500,000 Shares shall be reduced accordingly as necessary; and
e. Company shall pay to Executive's legal representatives a
prorated bonus for the year in which the termination occurs
for any then applicable bonus or bonus plan payable in
accordance with Company's normal bonus payment policy, but in
no event later than 90 days after the end of the fiscal year
in which Executive's employment is terminated.
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6.4. DISABILITY. In the event of a termination of this Agreement due to
Disability:
a. Company shall pay to Executive all accrued salary, vacation
time, and benefits under any applicable benefit plans of
Company through the Date of Termination;
b. upon the execution by Executive or Executive's legal
representatives, as may be necessary, of a release
substantially in the form of Exhibit B attached hereto,
Company shall pay to Executive severance pay in an amount
equal to twelve (12) months of his then base salary, less
standard withholdings for tax and social security purposes,
payable over a twelve (12) month term in monthly pro-rata
payments commencing on the Date of Termination (see Section 8
below regarding termination of severance pay);
c. Company shall promptly deliver to Executive any accrued
Vested Shares as described in Sections 4.5 and 4.6;
d. 500,000 Unvested Shares as described in Sections 4.5 and 4.6
shall immediately vest with any and all Right of Repurchase
on such shares being extinguished and a certificate
representing such shares shall be promptly delivered to
Executive except that in no event shall Executive receive
Shares under this Agreement in excess of the 3,040,646 Shares
granted in Section 4.5 and so such 500,000 Shares shall be
reduced accordingly as necessary; and
e. Company shall pay to Executive a prorated bonus for the year
in which the termination occurs for any then applicable bonus
or bonus plan payable in accordance with Company's normal
bonus payment policy, but in no event later than 90 days
after the end of the fiscal year in which Executive's
employment is terminated.
7. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
7.1. For purposes of this Agreement, "Confidential Information" means
any data or information, other than Trade Secrets, that are
valuable to Company and not generally known to the public or to
competitors of Company. "Trade Secret" means information
including, but not limited to, any technical or non-technical
data, formula, pattern, compilation program, device, method,
technique, drawing, process, financial data, financial plan,
product plan, list of actual or potential customers or suppliers
or other information similar to any of the foregoing, which (i)
derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by, other persons who can derive economic value from its
disclosure or use and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
7.2. The Executive acknowledges he is employed by Company in a
confidential relationship wherein he, in the course of his
employment with Company, has received or will receive and has had
or will have access to Confidential Information and Trade Secrets
of Company, including but not limited to confidential and secret
business and marketing plans, strategies and studies, detailed
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client/customer lists and information relating to the operations
and business requirements of those clients/customers and
accordingly, he is willing to enter into the covenants contained
in this Section 7 and Section 8 of this Agreement in order to
provide Company with what he considers to be reasonable protection
for its interest.
7.3. Executive shall hold in confidence all Confidential Information
and Trade Secrets of Company and its direct or indirect
subsidiaries that come into his knowledge during his employment by
Company and shall not disclose or publish at any time after the
date hereof such Confidential Information or Trade Secrets without
the written consent of Company. Executive acknowledges that
Confidential Information and Trade Secrets are the sole property
of Company and agrees to not use such Confidential Information or
Trade Secrets other than during the Employment Period and for the
benefit of Company.
7.4. Notwithstanding the foregoing, the provisions of this Section 7
will not apply to (i) information required to be disclosed by
Executive in the ordinary course of his duties hereunder or (ii)
Confidential Information that otherwise becomes generally known in
the industry or to the public through no act of Executive or any
person or entity acting by or on Executive's behalf, or which is
required to be disclosed by court order or applicable law.
7.5. The parties agree that the restrictions stated in this Section 7
are in addition to and not in lieu of protections afforded to
trade secrets and confidential information under applicable state
law. Nothing in this Agreement is intended to or shall be
interpreted as diminishing or otherwise limiting Company's right
under applicable state law to protect its trade secrets and
confidential information.
7.6. The parties agree that damages would be an inadequate remedy for
Company in the event of a breach or threatened breach of this
Section 7 of this Agreement by Executive, and in the event of any
such breach or threatened breach, Company may, either with or
without pursuing any potential damage remedies, obtain and enforce
an injunction prohibiting Executive from violating this Agreement
and requiring Executive to comply with its terms.
7.7. Executive agrees to simultaneously execute and abide by the
Employee Confidentiality and Invention Assignment Agreement
attached hereto as Exhibit A. In the event of a conflict between
Exhibit A and this Agreement regarding the subject matter of
Sections 7 or 8 herein, the term(s) in conflict shall be
interpreted so as to afford the greatest possible protection to
Company's interests in Confidential Information and Trade Secrets
and all other terms or portions thereof shall remain in full force
and effect.
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8. NONCOMPETITION/NONSOLICITATION
8.1. NONSOLICITATION. Executive agrees that in order to protect
Company's Confidential Information from unauthorized use,
Executive will not, either directly or through others, during the
Employment Period or within two years thereafter:
a. solicit or attempt to solicit any employee, consultant or
independent contractor of Company to terminate his or her
relationship with Company in order to become an employee,
consultant or independent contractor to or for any other
person or business entity;
b. solicit or attempt to solicit the business of any customer,
vendor or distributor which, at the time of termination or
within one (1) year prior thereto, was doing business with
Company or was listed on Company's customer, vendor or
distributor list in such as manner that adversely alters
Company's business relationship with the customer, vendor or
distributor .
c. take any other action that may cause any employee, customer,
or supplier of Company to terminate or adversely alter his,
her, or its relationship with Company.
Notwithstanding the two-year post-termination period provided in
this Section 8.1, in the event that the board of directors makes a
good faith determination that Executive has committed any of the
acts described in subsections (a), (b) or (c) of this Section 8.1
at any time in which Executive is receiving severance payments
under Sections 6.1.b or 6.4.b, the board may elect to terminate
such severance payments upon written notice to Executive in
accordance with Section 5.5 herein.
8.2. NONCOMPETITION. During the Employment Period, Executive agrees to
not, without Company's prior written consent, directly or
indirectly, be employed by, be connected with, or have an interest
of any kind in, whether as an employee, consultant, officer,
director, partner, stockholder, joint venturer, or otherwise, any
person or entity owning, managing, controlling, operating, or
otherwise participating or assisting in any business that is
similar to or in competition with the business of Company or its
affiliates ("Competitive Activity"). Moreover, in the event that,
following a termination of this Agreement for any reason, the
board of directors makes a good faith determination that Executive
has engaged or is engaging in Competitive Activity in any
territory in which Company or any of its operating subsidiaries
(whether in existence on the date of this Agreement or thereafter)
is conducting business or producing, marketing, distributing or
selling any of their products, the board may elect, at its
pleasure, to terminate any severance payments made to Executive
under Sections 6.1.b or 6.4.b, if any, upon written notice to
Executive in accordance with Section 5.5 herein; provided,
however, that Competitive Activity, for purposes of this
Agreement, shall not include ownership by Executive of less than 5
percent (5%) of the issued and outstanding securities of any class
of a corporation listed on a national securities exchange or
designated as national market system securities on an interdealer
system by the National Association of Securities Dealers, Inc.
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9. MITIGATION.
9.1. The Executive shall not be required to mitigate amounts payable
pursuant to Section 6 hereof by seeking other employment or
otherwise, nor shall such payments be reduced on account of any
remuneration earned by Executive attributable to employment by
another employer, by retirement benefits, by offset against any
amount claimed to be owed by Executive to Company (other than any
amounts owed by Executive under Company benefit plans and
agreements and any expenses incurred by Company on Executive's
behalf and at Executive's request) or otherwise, except as
provided in Section 8 above.
10. INDEMNIFICATION.
10.1. To the fullest extent permitted by law, Company shall indemnify
Executive (including the advancement of expenses) for any
judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred by Executive in
connection with the defense of any lawsuit or other claim to which
he is made a party by reason of being an officer, director or
employee of Company or any of its subsidiaries.
11. CHOICE OF LAW
11.1. This Agreement shall be interpreted in accordance with the laws of
the State of California, without regard to principles of conflicts
of law. The parties agree to the jurisdiction of the federal and
state courts of California for disputes arising from this
Agreement.
12. ASSIGNMENT AND BINDING EFFECT.
12.1. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of Company to
assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the company would be required
to perform it if no such succession had taken place. As used in
this Agreement, "Company" shall mean Company as hereinbefore
defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12.2. This Agreement shall not be assignable by Executive. This
Agreement and all rights of Executive hereunder shall inure to the
benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Upon Executive's death, all
amounts to which he is entitled hereunder, unless otherwise
provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee, or other designee
or, if there be no such designee, to Executive's estate.
12
13. NOTICES.
13.1. All notices or demands of any kind required or permitted to be
given by Company or Executive under this Agreement shall be given
in writing and shall be personally delivered (and receipted for)
or mailed by certified mail return receipt requested, postage
prepaid, and, if to Company, addressed to Company's principal
executive offices and if to Executive, to Executive's primary
place of residence.
14. INTEGRATION
14.1. This Agreement (including any and all Exhibits) contains the
entire agreement of the Parties relating to the subject matter
contained in this Agreement. There are no restrictions, promises,
covenants, or undertakings between Company and Executive, other
than those expressly set forth in this Agreement. This Agreement
supersedes all prior agreements and understandings between the
Parties relating to the subject matter contained herein.
15. SEVERABILITY
15.1. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid, but if
any one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such
provisions in every other respect and of the remaining provisions
of this Agreement shall not be in any way impaired.
16. AMENDMENT.
16.1. This Agreement cannot be amended or modified except by a written
agreement signed by Executive and Company.
17. WAIVER.
17.1. No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of
the Party against whom the waiver is claimed, and any waiver or
any such term, covenant, condition or breach shall not be deemed
to be a waiver of any preceding or succeeding breach of the same
or any other term, covenant, condition or breach.
18. INTERPRETATION AND CONSTRUCTION
18.1. The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this
Agreement. This Agreement has been drafted by legal counsel
representing Company, but Executive has been encouraged to consult
13
with his own independent legal counsel with respect to the terms
of this Agreement. The Parties acknowledge that each Party and its
counsel has reviewed or had an opportunity to review this
Agreement prior to execution. The normal rule of construction that
any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.
19. REPRESENTATIONS AND WARRANTIES.
19.1. Executive represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and
performing each of the terms and covenants contained in this
Agreement, and that his execution and performance of this
Agreement will not violate or breach any other agreements between
Executive and any other person or entity.
20. DISPUTE RESOLUTION AND BINDING ARBITRATION
20.1. Executive and Company agree that, if a dispute arises concerning
or relating to Executive's employment with Company, the dispute
shall be submitted to binding arbitration under the rules of the
American Arbitration Association then in effect. The arbitration
shall take place in San Diego County, California or in the county
in which Company's headquarters are located, if different, and
both Executive and Company agree to submit to the jurisdiction of
the arbitrator selected in accordance with American Arbitration
Association rules and procedures. Except as set forth in Section
7.6 and any like provision in Exhibit A, Executive and Company
agree that this arbitration procedure will be the exclusive means
of redress for any disputes relating to or arising from
Executive's employment with Company, including disputes over
rights provided by federal, state, or local statures, regulations,
ordinances, and common law, including all laws that prohibit
discrimination based on any protected classification. The Parties
expressly waive the right to jury trial, and agree that the
arbitrator's award shall be final and binding on both parties, and
nonappealable. The arbitrator shall have discretion to award the
prevailing Party reasonable costs and attorney fees incurred in
bringing or defending an action under this Section 20.
20.2. Executive waives any right to damages against any shareholder,
director, officer, or employee of Company for any claim, damages,
cost, or expense arising from Executive's employment with company
and acknowledges that Executive's remedy for such claims is
against Company for actions taken by individuals in their capacity
as agents or Company.
21. LEGAL EXPENSES.
21.1. Should any litigation, arbitration, or administrative action or
other such proceeding be commenced between the Parties or their
personal representatives concerning any provision of this
Agreement or the rights and duties of any person in relation to
this Agreement, the party or parties prevailing in such action
shall be entitled, in addition to such other relief as may be
granted, to recover all legal fees and expenses which such party
may reasonably incur as a result of the proceeding.
14
22. COUNTERPARTS.
22.1. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall
constitute one instrument.
23. TRADE SECRETS OF OTHERS.
23.1. The Executive shall not divulge to Company and/or its subsidiaries
any confidential information or trade secrets belonging to others,
including Executive's former employers, nor shall Company and/or
its affiliates seek to elicit from Executive any such information.
Executive shall not provide to Company and/or its affiliates, nor
shall Company and/or its affiliates request any documents or
copies of documents containing such information.
IN WITNESS WHEREOF, the Parties have executed this Agreement on December 5,
2001 to be effective as of the Effective Date.
Date: ___________ LA JOLLA FRESH SQUEEZED COFFEE CO., INC.
----------------------
By: Xxxx X. Xxxxxxx
Its: Chairman
Date: ___________ EXECUTIVE
-----------------------
Xxxxxxx X. Xxxxx
15
LA JOLLA FRESH SQUEEZED COFFEE COMPANY, INC.
EMPLOYEE CONFIDENTIALITY AND
INVENTION ASSIGNMENT AGREEMENT
THIS CONFIDENTIALITY AND INVENTION ASSIGNMENT AGREEMENT ("Agreement")
is entered into on December 5, 2001 ("Execution Date") by and between LA JOLLA
FRESH SQUEEZED COFFEE COMPANY, INC. (the "Company") and XXXXXXX X. XXXXX
("Employee"). The Company and Employee are hereinafter collectively referred to
as the "Parties," and individually referred to as a "Party."
ACKNOWLEDGEMENTS AND RECITALS
1. The Parties acknowledge that Employee has previously transferred any
and all right, title and interest in inventions relating to coffee and
coffee extracts to the Company and has continuously operated under
nondisclosure agreements under which he has been and continues to be
prohibited from disclosing confidential information of the Company.
2. The Parties further acknowledge that since the execution of such prior
transfer of invention, Employee has performed all research and
development and other work in the field of coffee as an employee of the
Company using the Company's equipment, supplies, facilities, and/or
trade secret information and that Employee's efforts have either
related to the employer's business or to actual or demonstrably
anticipated research or development of the Company or result from work
performed by Employee for the Company.
3. By entering into this Agreement, the Parties wish to further specify
and memorialize their rights and obligations with respect to one
another regarding confidentiality and ownership of inventions.
AGREEMENT
In consideration of Employee's continued employment by Company, the
compensation now and hereafter paid to Employee, and other valuable
consideration, Employee hereby acknowledges and agrees with Company as follows:
1. EFFECTIVE DATE. This Agreement shall become effective on the earlier of (a)
commencement of Employee's employment with Company, or (b) the date and time at
which any Confidential Information (as defined in Section 2 below) was first
disclosed to or developed by Employee.
2. CONFIDENTIAL INFORMATION. Company has and will develop, compile, and own
certain proprietary techniques and confidential information that have great
value in its business (said techniques and information as described within this
Section 2 are referred to in this Agreement collectively as "Confidential
Information"). Confidential Information is to be broadly defined and includes
confidential information belonging to the Company's Clients ("Clients" shall
mean any persons or entities for whom Company performs services or from whom
Company or Employee obtains information). Confidential Information includes all
16
information that has or could have commercial value or other utility in the
business in which Company or Clients are engaged or in which they contemplate
engaging. Confidential Information includes all information the unauthorized
disclosure of which could be detrimental to the interests of Company or the
Clients, whether or not such information is identified as Confidential
Information by Company or Clients. By example and without limitation,
Confidential Information includes any and all information concerning techniques,
processes, formulas, trade secrets, inventions, discoveries, improvements,
research or development, test results, specifications, data, know-how, formats,
marketing plans, business plans, strategies, forecasts, unpublished financial
information, budgets, projections, customer and supplier identities,
characteristics, and agreements. Confidential Information includes not only
information disclosed by Company or its Clients to Employee in the course of his
employment, but also information developed or learned by Employee during the
course of his employment with Company, such as Inventions (as defined in Section
8.1 below). For purposes of this Agreement, "trade secrets" shall mean
information that derives 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 that is the subject of efforts
that reasonable under the circumstances, to maintain secrecy.
3. PROTECTION OF CONFIDENTIAL INFORMATION. Employee agrees that, at all times
during or after his employment, he will hold in trust, keep confidential, and
not disclose to any third party or make any use of the Confidential Information
of Company or Clients except for the benefit of Company or Clients and in the
course of his employment with Company. Employee further agrees not to cause the
transmission, removal, or transport of Confidential Information or Inventions
from Company's principal place of business (currently 0000 Xxxxxxxx Xxxx, Xxxxx
X, Xxx Xxxxx, XX 00000-0000) or such other place of business specified by
Company, without prior written approval of the Chief Executive Officer of
Company (the "CEO"). In the event that Employee desires to publish the results
of his work for Company through literature or speeches, Employee agrees to
submit such literature or speeches to the CEO at least ten (10) days before
dissemination of such information for a determination of whether such disclosure
may destroy trade secret status or be highly prejudicial to the interests of
Company or its Clients or whether disclosure may constitute an invasion of their
privacy or be deemed prohibited for any other reason by CEO. Employee agrees not
to publish, disclose, or otherwise disseminate such information without prior
written approval of the CEO. Employee acknowledges that he is aware that the
unauthorized disclosure of Confidential Information of Company or its Clients
may be highly prejudicial to their interests, an invasion of privacy, and an
improper disclosure of trade secrets. Whenever the approval, designation,
specification, or other act of the CEO is required under this Agreement, the CEO
may, by written designation, authorize an agent of Company to perform such act.
4. NON-COMPETITION/NON-SOLICITATION DURING EMPLOYMENT. Except with the express
prior written consent of the CEO, Employee agrees that he or she will not,
during the period of his employment with Company: (a) engage in any employment
or activity other than for Company in any business in which Company is engaged
or contemplates engaging; (b) induce any other employee of or consultant to
Company to engage in any such employment or activity; or (c) solicit any Clients
or potential Clients of Company for services similar to those performed by
Company whether or not such services are directly competitive.
17
5. PRIOR KNOWLEDGE AND INVENTION. Employee has disclosed on Schedule A a
complete list of all Inventions proprietary to Employee and which Employee wants
to exclude from the application of this Agreement. Company agrees to receive and
hold all such disclosures in confidence.
6. PRIOR COMMITMENTS. Employee has no other agreements, relationships, or
commitments to any other person or entity that conflict with Employee's
obligations to Company under this Agreement.
7. CONFIDENTIAL INFORMATION OR TRADE SECRETS OF OTHERS. Employee will not
disclose to Company, or use, or induce Company to use, any confidential
information or trade secrets of others. Employee represents and warrants that he
or she has returned all property and confidential information belonging to all
prior employers.
8. ASSIGNMENT OF EMPLOYEE INVENTIONS
8.1. DISCLOSURE. Employee will promptly disclose in writing to Company
all discoveries, developments, designs, ideas, improvements,
inventions, formulas, processes, techniques, know-how, intellectual
property, and data (whether or not patentable or registerable under
copyright or similar statutes) made, conceived, reduced to practice, or
learned by Employee (either alone or jointly with others) during the
period of his employment, that are related to or useful in the business
of Company, or which result from tasks assigned to Employee by Company,
or from the use of premises owned, leased, or otherwise acquired by
Company (all of the foregoing are referred to in this Agreement as
"Inventions").
8.2. ASSIGNMENT OF INVENTIONS CREATED PRIOR TO EXECUTION OF THIS
AGREEMENT. FOR VALUABLE CONSIDERATION, EMPLOYEE TRANSFERS AND ASSIGNS
EMPLOYEE'S ENTIRE RIGHT, TITLE, AND INTEREST IN ALL INVENTIONS (AS
DEFINED ABOVE) MADE, CONCEIVED, REDUCED TO PRACTICE, OR LEARNED BY
EMPLOYEE (EITHER ALONE OR JOINTLY WITH OTHERS) DURING HIS PAST
RELATIONSHIP WITH COMPANY OR ANY ENTITIES WHOSE RIGHTS AND/OR ASSETS
HAVE BEEN TRANSFERRED TO COMPANY VIA A SALE OF ASSETS, MERGER OR
OTHERWISE INCLUDING, WITHOUT LIMITATION, NORTH WEST CONVERTERS, INC.,
NORTH WEST FARMS, INC., LA JOLLA COFFEE, INC., STEPHEN'S COFFEE, INC.,
AND STEPHEN'S COFFEE HOLDING, INC. EMPLOYEE EXPRESSLY ACCEPTS AS
ADEQUATE CONSIDERATION FOR THIS ASSIGNMENT OF INVENTIONS EMPLOYEE'S
CONTINUED EMPLOYMENT BY COMPANY, THE COMPENSATION NOW AND HEREAFTER
PAID TO EMPLOYEE, AND OTHER VALUABLE CONSIDERATION.
18
8.3. ASSIGNMENT OF INVENTIONS DURING THE TERM OF THIS AGREEMENT.
Employee acknowledges and agrees that, during the term of this
Agreement, all Inventions belong to and shall be the sole property of
Company and shall be Inventions of Company subject to the provisions of
this Agreement. Employee assigns to Company all right, title, and
interest Employee may have or may acquire in and to all Inventions.
8.4. MISCELLANEOUS. Employee agrees to sign and deliver to Company
(either during or subsequent to his employment) such other documents as
Company considers desirable to evidence the assignment of all rights of
Employee, if any, in any Inventions to Company and Company's ownership
of such Inventions. Any provision in this Agreement requiring Employee
to assign rights to an Invention does not apply to any invention that
qualifies under California Labor Code section 2870, which section is
reproduced in the attached Schedule C, Written Notification to
Employee.
9. POWER OF ATTORNEY. In the event that Company is unable to secure Employee's
signature on any document necessary to apply for, prosecute, obtain, or enforce
any patent, copyright, or other right or protection relating to any Invention,
whether due to mental or physical incapacity or any other cause, Employee hereby
irrevocably designates and appoints Company and each of its duly authorized
officers and agents as his agent and attorney-in-fact to act for and on his
behalf and stead to execute and file any such document and to do all other
lawfully permitted acts to further the prosecution, issuance, and enforcement of
patents, copyrights, or other rights or protections with the same force and
effect as if executed and delivered by the Employee.
10. TERMINATION OF EMPLOYMENT.
10.1. DELIVERY OF DOCUMENTS AND DATA. In the event of termination
(voluntary or otherwise) of Employee's employment with Company,
Employee agrees, promptly and without request, to deliver to and inform
Company of all documents and data pertaining to his employment and the
Confidential Information and Inventions of Company or Clients, whether
prepared by Employee or otherwise coming into his possession or
control, and to sign Schedule B to this Agreement. Employee will not
retain any written or other tangible material containing any
information concerning or disclosing any of the Confidential
Information or Inventions of Company or Clients. Employee recognizes
that the unauthorized taking of any of Company's trade secrets is a
crime under California Penal Code section 499(c) and is punishable by
imprisonment in a state prison or in a county jail for a time not
exceeding one year, or by a fine not exceeding five thousand dollars
($5000), or by both such fine and such imprisonment. Employee further
recognizes that such unauthorized taking of Company's trade secrets
could also result in civil liability under California's Uniform Trade
Secrets Act (Civil Code sections 3426-3426.11), and that willful
misappropriation may result in an award against Employee for triple the
amount of Company's damages and Company's attorney fees in collecting
such damages.
10.2. OBLIGATIONS OF EMPLOYEE AFTER TERMINATION OF EMPLOYMENT. In the
event of termination (voluntary or otherwise) of Employee's employment
with Company, Employee agrees that he will protect the value of the
Confidential Information of Company and Clients and will prevent their
misappropriation or disclosure. Employee will not disclose or use to
19
his benefit (or the benefit of any third party) or to the detriment of
Company or its Clients any Confidential Information or Invention.
Employee further agrees that, for a period of two years immediately
following termination (voluntary or otherwise) of Employee's employment
with Company, Employee shall not interfere with the business of Company
by inducing an employee to leave Company's employ, by inducing a
consultant to sever the consultant's relationship with Company, or by
inducing a Client to adversely alter its relationship with the Company.
11.INJUNCTIVE RELIEF. Because Employee's breach of this Agreement may cause
Company irreparable harm for which money is inadequate compensation, Employee
agrees that Company will be entitled to injunctive relief to enforce this
Agreement, in addition to damages and other available remedies.
12. ATTORNEY FEES. If any action is necessary to enforce this Agreement, the
prevailing party shall be entitled to recover its attorney fees.
13. MATERIAL CONDITION OF EMPLOYMENT. Employee acknowledges and agrees that the
protections set forth in this Agreement are a material condition to his
employment with and compensation by Company.
14. AMENDMENT AND BINDING EFFECT. This Agreement may not be amended except by an
instrument in writing signed by both parties. This Agreement shall be binding on
the heirs, executors, administrators, and other legal representatives and
assigns of Employee, and is for the benefit of Company and its successors and
assigns.
15. GOVERNING LAW. This Agreement shall be interpreted in accordance with the
laws of the State of California, without regard to principles of conflicts of
law. The parties agree to the jurisdiction of the federal and state courts of
California for disputes arising from this Agreement.
16. ENTIRE UNDERSTANDING. This Agreement, in conjunction with provisions on
confidentiality within the employment agreement to which this Agreement is
attached, express the entire understanding of the parties about the described
subject matter.
17.CUMULATIVE REMEDIES; NO WAIVER. Each and all of the several rights and
remedies provided for in this Agreement shall be cumulative. No one right or
remedy shall be exclusive of the others or of any right or remedy allowed in law
or in equity. No waiver or indulgence by Company of any failure by Employee to
keep or perform any promise or condition of this Agreement shall be a waiver of
any preceding or succeeding breach of the same or any other promise or
condition. No waiver by Company or any right shall be construed as a waiver of
any other right. Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
20
18.SEVERABILITY. If a court finds any provision of this Agreement invalid or
unenforceable as applied to any circumstance, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall be
interpreted so as best to effect the intent of the parties hereto. The parties
further agree to replace any such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business, and other purposes of the void or
unenforceable provision.
CAUTION: THIS AGREEMENT AFFECTS YOUR RIGHTS TO INVENTIONS YOU HAVE MADE AND MAY
MAKE DURING YOUR EMPLOYMENT, AND RESTRICTS YOUR RIGHT TO DISCLOSE OR USE
COMPANY'S CONFIDENTIAL INFORMATION DURING OR SUBSEQUENT TO YOUR EMPLOYMENT.
EMPLOYEE HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS ITS TERMS. EMPLOYEE
HAS COMPLETELY FILLED OUT SCHEDULE A TO THIS AGREEMENT AND HAS RECEIVED A COPY
OF THE WRITTEN NOTIFICATION TO EMPLOYEE CONTAINING CALIFORNIA LABOR CODE SECTION
2870.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the Execution Date first written above.
EMPLOYEE:
-------------------------------------------------------
Xxxxxxx Xxxxx Date
Social security #: ***-**-****
Address: *****************
*****************
LAJOLLA FRESH SQUEEZED COFFEE COMPANY, INC.
By: ________________________________________________
Xxxx X. Xxxxxxx, Chairman & CEO Date
21
Schedule A
Employee Statement
1. PRIOR INVENTIONS. Except as set forth below, I acknowledge at this time that
I have not made or reduced to practice (alone or jointly with others) any
Inventions that I do not wish to be assigned to Company under this Agreement (if
none, so indicate):
[ ] None
[ ] Addition sheets attached.
2. CONFLICTING RELATIONSHIPS. Except as set forth below, I acknowledge that I
have no other current or prior agreements, relationships, or commitments that
conflict with my relationship with Company under my Confidentiality Agreement
(if none, so indicate):
[ ] None
[ ] Addition sheets attached.
_______________________ Date: ______________
Xxxxxxx X. Xxxxx
22
Schedule B
Termination Certification
This is to certify that I do not have in my possession, nor have I
failed to return, any Confidential Information or copies of such information, or
other documents or materials, equipment, or other property belonging to Company
or its Clients.
I further certify that I have complied with and will continue to comply
with all the terms of the Confidentiality and Invention Assignment Agreement
which I signed, including the reporting of any Inventions (as defined in that
agreement) conceived or made by me that are covered by that Agreement.
I further agree that, in compliance with the Confidentiality and
Invention Assignment Agreement, I will preserve as confidential and not use any
or all Confidential Information, Inventions, or other information that has or
could have commercial value or other utility in the business in which Company or
its Clients are engaged or in which they contemplate engaging. I will not
participate in the unauthorized disclosure of information that could be
detrimental to the interests of Company or its Clients, whether or not such
information is identified as Confidential Information by Company or its Clients.
On termination of my employment with Company, I will be employed by
_________________ and will be working in connection with the following projects:
_______________________ Date: ______________
Xxxxxxx X. Xxxxx
23
Schedule C
Written Notification to Employee
In accordance with California Labor Code section 2872, you are hereby
notified that your Confidentiality and Invention Assignment Agreement does not
require you to assign to Company any Invention for which no equipment, supplies,
facility, or trade secret information of Company was used and that was developed
entirely on your own time, and does not relate to the business of Company or to
Company's actual or demonstrably anticipated research or development, or does
not result from any work performed by you for Company.
The following is the text of California Labor Code section 2870:
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his rights in an invention to
his employer shall not apply to an invention that the employee developed
entirely on his own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those inventions that either:
i. Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer; or
ii. Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
I hereby acknowledge receipt of this written notification.
_______________________ Date: ______________
Xxxxxxx X. Xxxxx
24
EXHIBIT B - RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in
Sections 4 and 6 of the Employment Agreement dated December 5, 2001 to which
this form is attached, I, Xxxxxxx Xxxxx, hereby furnish LA JOLLA FRESH SQUEEZED
COFFEE COMPANY, INC. (the "Company"), with the following release and waiver
("Release and Waiver").
I hereby release, and forever discharge Company, its officers,
directors, agents, employees, stockholders, successors, assigns, affiliates and
Benefit Plans, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising at any time prior
to and including my employment termination date with respect to any claims
relating to my employment and the termination of my employment, including but
not limited to, claims pursuant to any federal, state or local law relating to
employment, including, but not limited to, discrimination claims, claims under
the California Fair Employment and Housing Act, and the Federal Age
Discrimination in Employment Act of 1967, as amended ("ADEA"), or claims for
wrongful termination, breach of the covenant of good faith, contract claims,
tort claims, and wage or benefit claims, including but not limited to, claims
for salary, bonuses, commissions, stock, stock options, vacation pay, fringe
benefits, severance pay or any form of compensation.
In releasing claims unknown to me at present, I am waiving all rights
and benefits under Section 1542 of the California Civil Code, and any law or
legal principle of similar effect in any jurisdiction: "A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this release and waiver is knowing and
voluntary, and that the consideration given for this release and waiver is in
addition to anything of value to which I was already entitled as an Executive of
Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the release and waiver granted
herein does not relate to claims which may arise after this release and waiver
is executed; (b) I have the right to consult with an attorney prior to executing
this release and waiver (although I may choose voluntarily not to do so); and if
I am over 40 years old upon execution of this (c) I have twenty-one (21) days
from the date of termination of my employment with Company in which to consider
this release and waiver (although I may choose voluntarily to execute this
release and waiver earlier); (d) I have seven (7) days following the execution
of this release and waiver to revoke my consent to this release and waiver; and
(e) this release and waiver shall not be effective until the seven (7) day
revocation period has expired.
------------------------------------------------
Xxxxxxx X. Xxxxx Date
25
