Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 19th day of May , 1999, by and between
JLL VENTURES (Delaware) CORP., a Delaware corporation (hereinafter "Company"),
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ an individual (hereinafter "Executive").
W I T N E S S E T H:
WHEREAS, on the date hereof, JLL Ventures Acquisition Corp., a Delaware
corporation ("JLL"), and wholly-owned subsidiary of the Company, acquired CNF
Inc., a California corporation ("CNF"), pursuant to the terms of an Agreement
and Plan of Merger (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement the Company assumed CNF's
Stock Option Plan and all obligations of CNF thereunder including the obligation
to issue securities to Executive upon exercise of options owned of record by
Executive which have been issued under such plan; and
WHEREAS in connection with the Merger Agreement, Executive agreed to
become employed with the Company upon the terms and conditions herein contained.
NOW, THEREFORE, in consideration of the mutual premises and covenants
of the parties contained within the Merger Agreement and in this Agreement, the
parties hereto, do hereby agree as follows:
1. Employment and Term.
A. The Company hereby employs Executive and Executive hereby
accepts employment by the Company as its Chief Financial Officer and Treasurer.
Executive agrees to serve the Company in such capacity, subject to the terms and
conditions of this Agreement, for a term, commencing on the date hereof and
expiring three years from that date of this Agreement (the "Term").
2. Duties.
A. During the Term, Executive shall use his best efforts to
perform all duties required in furtherance of his position, including without
limitation all such duties as are customarily associated with such position or
as are assigned to him from time to time by the Board of Directors of the
Company.
B. Executive shall diligently and faithfully devote his entire
time, energy, skill, and best efforts to the performance of his duties under
this Agreement during reasonable business hours. Executive shall conduct himself
at all times so as to advance the best interests of the Company, and shall not
undertake or engage in any other business activity or continue or assume any
other business affiliations which conflict or interfere with the performance of
his services hereunder without the prior written consent of the Board of
Directors of the Company. Executive also agrees that he shall not usurp or
misappropriate, either to himself, or to any other person or entity, any
corporate or other opportunities that would otherwise be available to the
Company.
3. Compensation.
A. The Company shall pay Executive and Executive shall accept,
as his base compensation ("Base Compensation") for all services rendered to the
Company pursuant hereto, an annual salary of $208,000, to be paid in accordance
with the general payroll practices of the Company as from time to time in
effect, subject to all applicable federal and state tax withholding
requirements. Executive shall also be entitled, subject to the terms and
conditions of particular plans and programs, to all fringe benefits afforded to
other executives of Company in the discretion of the Board of Directors,
including, but not limited to, the right to participate in any pension,
retirement, major medical, group health, disability, accident and life
insurance, and
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other employee benefit programs made generally available, from time to time, by
the Company (collectively, "Benefits").
B. In addition to Base Compensation, for the fiscal year
ending March 31, 2000, Executive shall be entitled to a mandatory bonus
("Mandatory Bonus") equal to (i) $21,000 if the Company achieves the first of
the Financial Performance Targets set forth within the Certificate of
Designation for the Company's Series A Convertible Preferred Stock, which are
attached hereto and made a part hereof as Exhibit A; and (ii) an additional
$10,500 for each additional Financial Performance Target achieved. For example,
if the Company achieves the third Financial Performance Target, Executive would
be entitled to $42,000. The Mandatory Bonus for the fiscal year ending March 31,
2000 shall be payable within thirty (30) days after completion of the Company's
audited financial statements for such period. For each fiscal year during the
term of the Agreement ending after March 31, 2000, Executive shall be entitled
to a Mandatory Bonus in an amount equal to up to the maximum amount of the
Mandatory Bonus payable during fiscal year ending March 31, 2000 upon achieving
certain annual individual and Company performance goals ("Performance Goals").
The Performance Goals shall be determined by the Compensation or similar
committee of the Board of Directors, a majority of whose members shall be
non-employee directors, prior to or during the first fiscal quarter of each
fiscal year during the Term. The Performance Goals for each fiscal year ending
after March 31, 2000 shall, upon determination, be attached hereto and made a
part hereof as Exhibit B.
C. In addition to Base Compensation and the Mandatory Bonus, a
"Discretionary Bonus" may be awarded to Executive on the basis of merit
performance on an annual basis in the discretion of the Company's Board of
Directors or Compensation Committee.
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Base Compensation, Mandatory Bonus and Discretionary Bonus shall hereinafter
collectively be referred to as "Compensation."
D. Executive shall be entitled to participate in any stock
option programs adopted by the Company to the extent determined on a
discretionary basis by the Board of Directors of the Company or Compensation
Committee thereof.
4. Vacation and Reimbursement of Expenses.
A. Executive shall receive paid vacation in each calendar year
in accordance with the written policy of the Company, or as otherwise determined
by the board of Directors of the Company, to be taken at times which do not
unreasonably interfere with the performance of the Employee's duties hereunder
and in no event shall Executive schedule more than ten (10) consecutive days of
vacation during any three month period without the prior written consent of the
Chairman of the Board of Directors;
B. Executive shall be reimbursed for such reasonable expenses
as are directly incurred for the business of the Company upon presentation by
Executive of an itemized account of such expenditures, but only to the extent
that such expenses are deductible to the Company pursuant to rules and
regulations adopted by the United States Internal Revenue Service; provided,
however, that any expenses are in accordance with Company policy.
5. Termination.
A. Executive's employment and rights to Compensation and
Benefits hereunder shall terminate immediately if Executive voluntarily leaves
the employment of the Company; except that the Company shall have the obligation
to pay Executive such portion of his Base Compensation provided for in Section
3.A hereof as may be accrued but unpaid on the date Executive voluntarily leaves
the employment of the Company. In the event that Executive
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voluntarily leaves the employment of the Company, he shall provide at least
ninety (90) days' written notice.
B. The Company may at any time, upon written notice to
Executive giving the reasons therefor, terminate Executive's employment and his
right to Compensation hereunder "For Cause." As used herein, the term "For
Cause" shall be defined to include: (i) with respect to the fiscal year ending
March 31, 2000, the Company's audited financial statements for such period
reflecting: (a) revenues of less than $17,500,000; or (b) a net loss exclusive
of extraordinary items determined in accordance with generally accepted
accounting principles in excess of $500,000; (ii) with respect to all subsequent
periods during the Term, if the Company fails to achieve for two (2) consecutive
quarters such quarterly financial performance targets for revenue and pre-tax
net income as are determined by the Compensation or similar committee of the
Board of Directors (a majority of whose members shall be non-employee
directors), in consultation with executive management, as determined prior to or
during the first fiscal quarter of each fiscal year; (iii) conviction of
Executive of any felony, fraud, embezzlement, or crime of moral turpitude; (iv)
controlled substance abuse or drug addiction; (v) alcoholism which interferes
with or affects Executive's responsibilities; (vi) grossly negligent, reckless
or intentional misconduct which is materially injurious to the Company; (vii)
violation of any express written direction of or any reasonable written rule or
regulation established by the Company's Board of Directors from time to time
which violation has not been cured to the Company's satisfaction within thirty
(30) calendar days of the dispatch of written notice to the Executive of the
violation. In the event of a termination For Cause, Executive's employment and
right to Compensation and Benefits hereunder shall terminate immediately, except
that the
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Company shall have the obligation to pay Executive such portion of his Base
Compensation as may be accrued but unpaid on the date his employment is
terminated.
C. Commencing on the one (1) year anniversary of the
Agreement, Executive may also be terminated for any reason ("Without Cause") in
the discretion of the Board of Directors of the Company. In the event of a
termination Without Cause, Executive's employment and right to Compensation and
Benefits shall terminate immediately and Executive shall, in lieu thereof, be
entitled to severance pay consisting of a continuation of Base Compensation and
Benefits for a period of one (1) year. During the period in which payments are
made to Executive pursuant to this Section 5.C, Executive shall remain subject
to the limitations identified in Section 6 hereafter.
D. Unless Executive's employment hereunder is terminated by
reason of: (I) his voluntary resignation or retirement; or (ii) by reason of any
of the "For Cause" events set forth at Section 5.B(ii) (vii), Executive shall be
removed as a guarantor of any Company obligations in force as of the date of
this Agreement prior to any termination becoming effective, and by virtue of
this agreement Executive does hereby grant the Company the right in his place
and stead to secure the removal of any such guaranteed obligations at no cost to
Executive.
6. Confidentiality and Related Matters.
A. Acknowledgment of Nature and Value of Confidential
Information: For the purposes of this Section 6 only, the term "Company" shall
include the Company, all subsidiaries of the Company and CNF. Executive
recognizes, acknowledges and agrees: (i) that in the course of Executive's
employment by the Company, it has been, and will continue to be, necessary for
Executive to acquire, in a fiduciary capacity of trust, information which could
include, in whole or in part, but is not limited to: information concerning the
Company's rate schedules; rate quotations; the names, addresses, credit terms
and nature of services provided by
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the vendors utilized by the Company; the names, addresses, credit terms and
nature of services provided to customers of the Company; the identity of the
Company's suppliers, sales representatives, shippers or other entities with whom
Executive has come into contact as a result of his employment with the Company,
or which should otherwise come into his knowledge during the term of this
Agreement; the salaries, skills, education or abilities of the Company's
employees; the Company's sales, sales volume, sales methods and sales proposals;
the identities of the Company's customers and/or prospective customers; the
identities of key purchasing personnel in the employ of customers and
prospective customers; the amounts and/or kinds of customers' purchases from the
Company; the Company's sources of information and supply; the Company's products
and product designs; the Company's computer programs, system documentation,
source code and algorithms, special hardware or software, service or product
hardware or software, and related software or hardware development; any useful
process, machine or other device or composition of matter which is new and which
is being used or studied by the Company and is not described in a patent or
described in any literature already published and distributed externally by the
Company; the Company's manuals, formulae, tools, processes, methods, machines,
compositions, ideas, improvements, trade secrets, including but not limited to
information falling under the definition of a "trade secret" pursuant to the
Uniform Trade Secret Act (or, if applicable, the version thereof adopted by
Delaware), patents, inventions, intellectual property, or other information or
materials relating to the Company's affairs (collectively referred to herein as
the "Confidential Information"); (ii) that the Confidential Information is the
property of the Company and constitutes a major asset of the Company; (iii) that
the use, misappropriation or disclosure of the Confidential Information would
constitute a breach of trust and could cause irreparable injury to the Company;
and (iv) that it is essential to
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the protection of the Company's goodwill and to the maintenance of the Company's
competitive position that the Confidential Information be kept secret and that
Executive neither disclose the Confidential Information to others nor use the
Confidential Information to Executive's own advantage or to the advantage of
others.
B. Acknowledgment of Necessity for Protections of Company's
Business. Executive further recognizes, acknowledges and agrees that it is
essential for the proper protection of the business of the Company that
Executive shall not: (i) solicit or induce any employee of the Company to leave
the employ of the Company; (ii) hire or attempt to hire any employee of the
Company; (iii) solicit the trade of, or trade with, the customers or suppliers
of the Company for any business purpose other than that of the Company; and (iv)
compete against the Company for a reasonable period of time and within a
reasonable geographic area following the termination or nonrenewal of
Executive's employment with the Company, as more fully addressed in Section 6.F,
below.
C. Work Made For Hire. Executive hereby acknowledges and
agrees that each of the copyrightable related to the business of the Company
works authored by Executive (including without limitation, all software and
related documentation, and all written and graphic materials prepared or
conceived by Employee), alone or with others, during Executive's employment with
the Company shall be deemed to be works prepared by Executive within the scope
of Executive's employment with the Company and, as such, shall be deemed to be
"works made for hire" under the United States copyright laws from the inception
of creation of such works. In the event that any of such works shall be deemed
by a court of competent jurisdiction not to be a "work made for hire," this
Agreement shall operate as an irrevocable assignment by Executive to the Company
of all right, title and interest in and to such works, including, without
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limitation, all worldwide copyright interests therein, in perpetuity. The fact
that such copyrightable works are created by Executive outside of the Company's
facilities or other than during Executive's working hours with the Company shall
not diminish the Company's right with respect to such works which otherwise fall
within this paragraph. Executive agrees to execute and deliver to the Company
such further instruments or documents as may be requested by the Company in
order to effectuate the purposes of this paragraph.
D. Non-Disclosure of Confidential Information. In recognition
and consideration of Executive's employment, Compensation and Benefits, the
information which the Company has given and will give Executive regarding the
Company's business, the Executive's introduction to the Company's customers and
prospective customers made in the course of Executive's employment with the
Company, and the carefully-guarded methods of doing business which the Company
utilizes and deems crucial to the successful operation of its business,
Executive has held, and agrees to continue to hold and safeguard, the
Confidential Information in trust and in a fiduciary capacity for the Company,
its successors and assigns. Executive expressly agrees that he shall not,
without the prior written consent of the Company, misappropriate or disclose or
make available to anyone for use outside the Company's organization at any time,
either during Executive's employment with the Company or subsequent to the
termination or nonrenewal of such employment with the Company, for any reason,
including without limitation termination by the Company For Cause or Without
Cause, any of the Confidential Information, whether or not developed by
Executive, except as required by the Company in the performance of Executive's
duties to the Company. Notwithstanding the above, term "Confidential
Information" shall not include information which becomes generally available to
the public (other than as a result of disclosure by the Executive). Furthermore,
if
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you are formally required to disclose any Confidential Information in the
context of a civil, governmental or regulatory proceeding, you shall provide the
Company with prompt notice of any such requirement so that the Company may seek
an appropriate protective order or waive compliance with the provisions off this
Agreement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, you are, in the opinion of your counsel, compelled to disclose
Confidential Information or else stand liable for contempt of suffer other
censure or penalty, you may disclose that portion of the Confidential
Information which your counsel advises you to disclose. In any event, you will
not oppose action by, and will cooperate with the civil, governmental or
regulatory agency to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information.
E. Disclosure of Works and Inventions/Assignment of Patents.
In consideration of the promises set forth herein, Employee agrees to disclose
promptly and fully to the Company, or to such person whom the Company may
expressly designate for this specific purpose (its "Designee"), any and all
works, inventions, discoveries and improvements authored, conceived or made by
Employee, solely or with others, during the period of employment by the Company
and where the subject matter of such works, inventions, discoveries or
improvements results from or is suggested by any work which Employee may do for
or on behalf of the Company shall have all rights to such works, inventions,
discoveries and improvements, whether they are patentable or not. The fact that
such works, inventions, discoveries and improvements are made or conceived by
Employee outside of the Company's facilities or other than during the Employee's
working hours with the Company shall not diminish the Company's rights with
respect to such works, inventions, discoveries and improvements which otherwise
fall within this paragraph. Employee agrees that, whenever he is requested to do
so by the Company, during or
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after termination of Employee's employment by the Company, Employee shall
execute or join in executing any and all applications, assignments or other
instruments which the Company shall deem necessary to apply for and obtain
Letters Patent or Copyrights of the United States or any foreign country or to
otherwise protect the Company's interest therein, and Employee shall assign all
such applications to the Company or its Designee, and shall provide the Company
or its agents or attorneys with all reasonable assistance in the preparation and
prosecution of patent applications, drawings, specifications and the like, all
at the expense of the Company, and shall do all that may be necessary to
establish, protect and maintain the rights of the Company or its Designee in the
works, inventions, discoveries, improvements, patent applications and Letters
Patent in accordance with the spirit of this paragraph. Such obligations shall
continue beyond the termination or nonrenewal of Employee's employment with
respect to any works, inventions, discoveries and/or improvements that are
authored, conceived of, or made by Employee during the period of Employee's
employment, and shall be binding upon Employee's successors, assigns, executors,
heirs, administrators or other legal representatives. The Company shall have no
rights pursuant to this Agreement in any work, invention, discovery or
improvement of the Employee made during the Term of Employee's employment by the
Company if such work, invention, discovery or improvement has not arisen out of
the or by reason of Employee's work with the Company or does not relate to the
products, business or operations of the Company, although Employee shall
nonetheless inform the Company of any such work, invention, discovery or
improvement.
F. Restrictions on Competition. Executive covenants and agrees
that, for and in consideration of the Compensation received hereunder, the
sufficiency and receipt of which is hereby acknowledged, during the period of
Executive's employment hereunder (and for the
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period during which payments are made pursuant to Section 5.C. hereof), and for
a period of one (1) year thereafter, Executive shall not, in any state or
foreign country in which the Company does business, engage, directly or
indirectly, whether as principal or as agent, officer, director, employee,
consultant, shareholder, or otherwise, alone or in association with any other
person, corporation or other entity, in any "Competing Business". For purposes
of this Agreement, the term "shareholder" shall exclude any interest owned by
Executive in a public company to the extent the Executive owns less than ten
percent (10%) of any such company's outstanding common stock. For the further
purposes of this Agreement, the term "Competing Business", shall mean any
person, corporation or other entity that is engaged in the business of selling
portable computer peripherals or similar products being manufactured, developed,
sold, distributed or licensed by the Company which directly competes with the
business of the Company at the time of such termination or nonrenewal.
Accordingly, the Company is granted the right by Executive to apply to any court
of competent jurisdiction for one or more temporary or permanent injunctions
enjoining Executive, his agents and employees, from violating the provisions of
this Agreement and/or from continuing to breach such provisions. This Section
6.F shall not be effective for any purpose whatsoever if Executive is terminated
Without Cause; except during the period which payments are being made pursuant
to Section 5.C hereof.
G. Executive's Abilities. Executive represents that
Executive's experience and capabilities, and the limited provisions of the
immediately-preceding Section 6.F, are such that he will not be prevented from
earning his livelihood in businesses similar to the Company, other than the
"Competing Business," as specifically defined in the immediately preceding
Section 6.F. Executive acknowledges that there are a significant number of
businesses for which his qualifications and experience would render him
qualified for employment that are within the
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states and foreign countries referred to in Section 6.F. which do not constitute
a "Competing Business" such that his ability to become employed after the
termination or nonrenewal of this Agreement would not be impaired.
H. Non-Solicitation of Customers and Suppliers. Executive
agrees that during the course of his employment with the Company (and for the
period during which payments are made pursuant to Section 5.C. hereof), and for
a period of one (1) year thereafter, he shall not, directly or indirectly,
solicit the trade of, or trade with, any past or present customer or supplier of
the Company for any business purpose that competes directly or indirectly with
the business being undertaken by the Company.
I. Non-Solicitation of Employees. Executive agrees that,
during the course of his employment with the Company (and for the period during
which payments are made pursuant to Section 5.C hereof) and for two (2) years
following any termination or nonrenewal of Executive's employment with the
Company, including, without limitation, termination by the Company For Cause or
Without Cause, Executive shall not, directly or indirectly, solicit or induce,
or attempt to solicit or induce, any employee of the Company to leave the
Company for any reason whatsoever, or assist or participate in the hiring of any
employee of the Company to work for another entity.
J. No Prior Agreements. Executive represents and warrants that
Executive is not a party to or otherwise subject to or bound by the terms of any
contract, agreement or understanding which in any manner would limit or
otherwise affect Executive's ability to perform his obligations hereunder,
including without limitation any contract, agreement or understanding containing
terms and provisions similar in any manner to those contained in this Section 6.
Executive further represents and warrants that his employment with the Company
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will not under any circumstances require him to disclose or use any confidential
information belonging to prior employers or other persons or entities, or to
engage in any conduct which may potentially interfere with the contractual,
statutory or common-law rights of such other employers, persons or entities. In
the event that Executive knows or learns of any facts whatsoever which suggest
that such interference might arguably occur as the result of any proposed
actions by either Executive or the Company, Executive expressly promises that he
will immediately bring such facts to the Company's attention.
K. Remedies. In the event of a breach by Executive of any of
the terms of this Agreement, the Company shall be entitled, if it shall so
elect, to institute legal proceedings to obtain damages for any such breach, or
to enforce the specific performance of this Agreement by Executive and to enjoin
Executive from any further violation of this Agreement, and to exercise such
remedies cumulatively or in conjunction with all other rights and remedies
provided by law. Executive acknowledges and agrees that money damages for any
breach by him of any of the provisions of this Agreement may be inadequate to
compensate the Company for the injuries it may suffer as the result of any such
breach, and accordingly that the Company shall be entitled to injunctive relief
against Executive, in addition to money damages, in the event of any such breach
by Executive.
L. Review by Counsel. Executive expressly acknowledges and
represents that Executive has been given a full and fair opportunity to review
this Agreement with an attorney of Executive's choice, and that Executive has
satisfied himself, with or without consulting with counsel, that the terms and
provisions of this Agreement, specifically including, but not limited to, the
restrictive covenant and related provisions of Section 6 hereof, are reasonable
and enforceable.
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M. Return of Materials. Upon the termination or nonrenewal of
Executive's employment with the Company for any reason, including without
limitation termination by the Company For Cause or Without Cause, or at any time
upon demand, Executive shall promptly deliver to the Company all Company
property and materials, including without limitation all documents or other
materials constituting, containing, referencing or relating to the "Confidential
Information" referred to in this Section 6, and any other Company property of
any nature whatsoever, including without limitation correspondence, computer
disks or other electronically-stored information, drawings, blueprints, manuals,
letters, notes, notebooks, reports, flow-charts, programs, proposals and any
documents concerning the Company's customers, or concerning services, products
or processes provided by or to, or used by, the Company.
N. Company-Created Materials. All material that may be
furnished to the Executive, together with literature, rate schedules, customer
lists, forms, filing systems and any other property, documents or other
materials furnished or made available by the Company to the Executive, shall be
and remain the property of the Company, and shall be returned by the Executive
to the Company upon any termination or nonrenewal of employment or at any time
upon demand.
O. Executive-Created Materials. All material created by the
Executive during the term of his employment with the Company which is incidental
to or related in any way to the Executive's employment, or to the Company's
business, shall be the property of the Company, and shall be delivered to the
Company upon any termination or nonrenewal of Executive's employment or at any
time upon demand.
P. Definitions. For purposes of this Section 6, the term,
"material(s)" shall include, but shall not be limited to, data stored in
computers, voicemail or any other electronic,
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magnetic, or mechanical storage device, any passwords, codes or keys required to
access all or any portion of such material, and the "Confidential Information"
referred to in Section 6.A. hereof.
7. Conflict of Interest.
Executive covenants that, during the Term, he will disclose to
the Company, in writing, any and all interests he may have, whether for profit
or compensation or not, in any venture or activity which could potentially
interfere with his ability to perform under this Agreement or create a conflict
of interest for him with the Company. For purposes of this paragraph 7 only,
"conflict of interest" shall mean ownership of greater than one percent (1%) of,
or $250,000 worth of equity in, another company which conducts business similar
to that undertaken by the Company.
8. Notices.
All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, at the following addresses or to such other
address as either party may designate by like notice:
A. If to Executive, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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B. If to Company, to:
JLL Ventures (Delaware) Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ Ingersoll Professional Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
9. Basic Indemnification.
Company shall indemnify and defend Executive and his heirs,
executors and administrators against any costs or expense (including reasonable
attorneys' fees and amounts paid in settlement, if such settlement is approved
by the Company), fine, penalty, judgment and liability reasonably incurred by or
imposed upon Executive in connection with any action, suit or proceeding, civil
or criminal, to which Executive may be made a party or with which Executive
shall be threatened, by reason of Executive's being or having been an Officer,
unless with respect to such matter Executive shall have been adjudicated in any
proceeding not to have acted in good faith or in the reasonable belief that the
action was in the best interests of the Company, or unless such indemnification
is precluded by law, public policy, or in the judgment of the Company's Board of
Directors, such indemnification is being sought as a result of actions of
Executive which were either : (i) grossly negligent; (ii) reflective of
Executive misconduct; (iii) in violation of rules, regulations or laws
applicable to the Company; or (iv) in disregard of Company policies. Company
shall utilize its best efforts to obtain Directors and Officers Liability
Insurance in an amount which is standard and customary for a business such as
the Company.
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10. Additional Provisions.
A. Binding Agreement. This Agreement, including without
limitation its confidentiality, restrictive covenant and related provisions,
shall inure to the benefit of, and be binding upon, the Company and its
successors and assigns and Executive, his heirs, executors, administrators and
legal representatives, subject to the provisions of Section 10.F. hereof, which
expressly prohibits the assignment or delegation of any of Executive's personal
rights or obligations hereunder.
B. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
cannot be modified orally. This Agreement supersedes all prior and
contemporaneously-made written or oral agreements between the parties or between
Executive and CNF relating to the subject matter hereof. No modification or
waiver of any of the provisions hereof shall be effective unless set forth in a
writing that specifically states that it is intended to be a modification of
this Agreement and that is signed by the Chief Executive Officer of the Company.
C. Modification. If any provision(s) of this Agreement shall
be or shall become illegal or unenforceable in whole or in part, for any reason
whatsoever, the remaining provisions shall nevertheless be deemed valid, binding
and subsisting, and any invalid or unenforceable provision(s) shall be deemed
modified to the least extent possible so as to make them valid and enforceable
and so as to give the maximum effect allowable by law to the parties' original
intent as expressed by the terms hereof.
D. No Waiver. No failure on the part of the Company to
exercise, and no delay by the Company in exercising, any right, power or
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remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Company of any right, power or remedy hereunder,
preclude any other or further exercise thereof, or the exercise of any other
right, power or remedy by the Company.
E. Person. "Person" as used herein shall mean a natural
person, joint venture, corporation, partnership, trust, estate, sole
proprietorship, governmental agency or authority or other juridical entity.
F. Personal Services Contract. This is a personal services
contract and the rights and obligations set forth herein may not be assigned or
delegated by Executive, except as otherwise specifically provided in this
Agreement with respect to benefits payable upon Executive's disability or death,
without the express, written consent of the Company. This Agreement shall be
binding upon and inure to the benefit of the Company, its successors and
assigns. This Agreement may be assigned by the Company to any party, without the
consent of Executive. The transfer of Executive to any parent, affiliate or
subsidiary of the Company shall constitute an assignment of this Agreement.
G. Headings. The headings of the several sections of this
Agreement have been inserted for convenience of reference only and shall in no
way be used to restrict, modify, or explain any of the terms or provisions
hereof.
H. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to its, or any other sovereignty's, conflicts of laws principles.
The parties agree that any claims brought pursuant to this Agreement shall be
brought in a court of competent jurisdiction located in Phoenix, Arizona.
I. Tolling Period. The non-competition, non-disclosure and
non-solicitation obligations contained in Section 6 of this Agreement shall be
extended by the length of time during which Executive shall have been in breach
of any of the provisions of such Section 6.
19
J. Company Violation Not a Defense. In an action by the
Company to enforce any provision of this Agreement, any claims asserted by
Executive against the Company shall not constitute a defense to the Company's
action.
K. Release. In consideration of Executive's employment
hereafter with the Company, Executive acknowledges and represents that, with the
exception of ordinary course reimbursement of business expenses and accrued
vacations reflected within the financial statements of CNF, Inc., he has no
outstanding claims of any kind whatsoever, including but not limited to, any
claim for outstanding indebtedness, past salary, reimbursements, or benefits of
any type against CNF or any of its affiliates or subsidiaries and that if he has
any such claim, any and all such claims are hereby forever waived and released.
L. Construction. This Agreement shall be construed according
to the plain meaning of its terms, and not strictly for or against either party
hereto.
M. Counterparts. This Agreement may be executed in
counterpart, and the counterparts, taken together, shall constitute the entire
Agreement. The Agreement may further be executed by facsimile transmission, and
the facsimile signatures may be deemed original signatures for all purposes,
including for purposes of the Best Evidence Rule and all other rules or
doctrines of similar effect.
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
IMPORTANT NOTICE: THIS AGREEMENT RESTRICTS EXECUTIVE'S RIGHTS TO OBTAIN
OTHER EMPLOYMENT FOLLOWING HIS EMPLOYMENT WITH THE COMPANY. BY SIGNING
IT, EXECUTIVE ACKNOWLEDGES THIS FACT, AND FURTHER ACKNOWLEDGES THAT HE
HAS BEEN ADVISED BY THE COMPANY TO READ THE AGREEMENT CAREFULLY, AND/OR
TO CONSULT WITH COUNSEL OF HIS CHOICE CONCERNING THE LEGAL EFFECTS OF
SIGNING THE AGREEMENT, PRIOR TO SIGNING IT.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Dated:
---------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Dated:
---------------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as Executive
WITNESS:
---------------------------
21
EXHIBIT "A"
Financial Performance Targets(1)
First: Gross Revenues of $22.5 million(2) and Net Income of $900,000(3)
Second: Gross Revenues of $38.25 million(2) and Net Income of $1.53 million(3)
Third: Gross Revenues of $51 million(2) and Net Income of $2.04 million(3)
Fourth: Gross Revenues of $64 million(2) and Net Income of $2.56 million(3)
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(1) The Financial Performance Targets are to be derived from the results of
operations reflected within the Company's audited financial statements for
the fiscal year ending March 31, 2000.
(2) The Financial Performance Targets with respect to Gross Revenues shall be
considered to have been achieved if actual Gross Revenues are within 10% of
the targeted amount.
(3) The Financial Performance Targets with respect to Net Income shall be
considered to have been achieved if actual Net Income is within 10% of the
targeted amount.
EXHIBIT "B"
