EMPLOYMENT AND NON-COMPETE AGREEMENT
This Agreement is entered into this 1st day of May, 2000 by and between XXXXX
COMPANIES, INC., a Delaware Corporation ("Xxxxx") and XXXXXX XXXXXXXXXXXXX
("XXXXXXXXXXXXX").
Whereas XXXXXXXXXXXXX has certain knowledge and skills in the management of
information systems functions and wishes to be employed by Xxxxx; and
Whereas, Xxxxx and XXXXXXXXXXXXX in consideration of the covenants contained
herein agree as follows:
1. Xxxxx shall employ XXXXXXXXXXXXX as of May 1, 2000 in the position of
Executive Vice President/Chief Information Officer in the San Francisco Bay
Area reporting to the Office of the Chairman (or its successor).
2. Xxxxx shall compensate XXXXXXXXXXXXX for such employment as follows:
a. Twenty Thousand Eight Hundred Thirty-three Dollars and Thirty-three
Cents($20,833.33) gross salary per month;
b. Participation in the Xxxxx Bonus Plan at the Executive Committee Level;
c. Fringe Benefits as provided to all Xxxxx executives on the Executive
Committee;
d. Four weeks paid vacation per year;
e. Reimbursement of reasonable business related expenses in accordance
with the Xxxxx travel and entertainment policy;
3. This Agreement shall have a term of three (3) years expiring on April
30, 2003. All terms herein shall remain unchanged for the duration of the
term of this Agreement unless changed or modified by a written document
signed by XXXXXXXXXXXXX and the Office of the Chairman of Xxxxx.
4. Xxxxx may terminate this Agreement with no further liability or obligation
hereunder for "cause". For purposes hereof, "cause" shall mean misconduct
including, but not limited to:
i. Conviction of any felony or any crime involving moral turpitude or
dishonesty;
ii. Participation in a fraud or act of dishonesty against the company;
iii. Willful breach of the company's policies;
iv. Intentional damage to the company's property;
v. Material breach of this Agreement;
vi. Material failure to meet the mutually agreed upon performance
objectives set at the commencement of each fiscal year through the normal
management by objectives, process as established by the company, or
vii. Conduct that in the good faith and reasonable judgment of the Board of
Directors of Xxxxx demonstrates gross unfitness to perform your job
functions.
5. If, as a result of a change of control, XXXXXXXXXXXXX'x employment
hereunder is terminated other than for "cause", or in the event that
XXXXXXXXXXXXX elects to resign his employment therefor the Change in
Control Agreement previously entered into shall prevail.
6. Should Xxxxx terminate XXXXXXXXXXXXX'x employment, other than for "cause"
or a Change in Control, Xxxxx shall pay XXXXXXXXXXXXX, as his sole remedy
for such termination, a sum equal to one year's salary.
7. Should Xxxxx terminate XXXXXXXXXXXXX'x employment, other than for "cause"
or a Change in Ccontrol, in addition to the remedy provided for in
section 6 above, Xxxxx shall vest upon such termination date all
of the restricted stock and stock options previously granted to
XXXXXXXXXXXXX which had not vested as of such termination date.
In consideration of such vesting, WOJIECHOWSKI covenants and
agrees that:
i. During the term hereof and for a period of one year after such
termination date ("Non-Competition Period") he shall
not, directly or indirectly, either for himself or any other
person, own, manage, control, participate in, invest
in, permit his name to be used by, act as consultant or
advisor to, render services for (whether alone or in
association with any individual, entity, or other business
organization), or otherwise assist in any manner any
individual or entity that engages in or owns, invests in,
manages or controls any venture for enterprise engaged in
the provision of services that are similar to, or in
competition with, or may materially detract from, any services
provided by Xxxxx or as to which Xxxxx had firm plans as of
the date he ceased to be employed by Xxxxx. Nothing
herein shall prohibit him from being a passive owner of not
more than two percent (2%) of the outstanding stock of
any class of securities of a corporation engaged in such
business which is publicly traded, so long as he has no
active participation in the business of such corporation.
ii. During the Non-Competition Period, he shall not, directly or
indirectly,(i)induce or attempt to induce or aid another in
inducing any employee of Xxxxx to leave the employ of Xxxxx,
or in any way interfere with the relationship between Xxxxx
and any employee of Xxxxx, or (ii) induce or attempt to induce
any customer of Xxxxx to cease doing business with Xxxxx, or
in any way interfere with the relationship between Xxxxx and
any customer or other business relation of Xxxxx.
iii. During the Non-Competition Period, he shall not, directly or
indirectly employ any employee of Xxxxx who voluntarily
terminates such employment until three months have passed
following termination of such employment.
iv. In the event a court shall refuse to enforce the agreements
contained herein, either because of the scope of the
geographical area specified in this Agreement or the duration
of the restrictions, the parties hereto expressly confirm
their intention that the geographical areas covered hereby and
the time period of the restrictions be deemed automatically
reduced to the minimum extent necessary to permit enforcement.
8. Should XXXXXXXXXXXXX continue in the employ of Xxxxx after the expiration
of this Agreement, he will be an at-will employee whose employment may be
terminated by XXXXXXXXXXXXX or Xxxxx with or without cause. Compensation
and other terms and conditions of such at-will employment shall be those
mutually agreed upon by XXXXXXXXXXXXX and Xxxxx as of the commencement
date of such at-will employment.
9. XXXXXXXXXXXXX shall not engage in any activity whatsoever which conflicts
with the interests of Xxxxx or with XXXXXXXXXXXXX'x duties as an employee
of Xxxxx. XXXXXXXXXXXXX understands that XXXXXXXXXXXXX'x employment is on
a full-time basis, and XXXXXXXXXXXXX agrees not to engage in any other
employment or business-related activity without the prior written consent
of the Office of the Chairman of Xxxxx. XXXXXXXXXXXXX hereby represents
that XXXXXXXXXXXXX has no agreements with, or obligations to, any person
or entity which conflicts, or may conflict, with the interests of Xxxxx or
with XXXXXXXXXXXXX'x duties as an employee of Xxxxx.
10. XXXXXXXXXXXXX understands and acknowledges that during XXXXXXXXXXXXX'x
employment with Xxxxx, XXXXXXXXXXXXX has been and shall be exposed to
Confidential Information (defined below), all of which is proprietary and
which rightfully belongs to Xxxxx. XXXXXXXXXXXXX shall hold in a
fiduciary capacity for the benefit of Xxxxx all such Confidential
Information obtained by XXXXXXXXXXXXX during XXXXXXXXXXXXX'x employment
with Xxxxx and shall not, directly or indirectly, at any time, either
during or after XXXXXXXXXXXXX'x employment with Xxxxx, without Xxxxx'x
prior written consent, use any of such Confidential Information or
disclose any of such Confidential Information to any individual or entity
other than authorized employees of Xxxxx except as required in the
performance of XXXXXXXXXXXXX'x duties for Xxxxx. XXXXXXXXXXXXX shall take
all reasonable steps to safeguard such Confidential Information and to
protect such Confidential Information against disclosure, misuse, loss or
theft. The term "Confidential Information" shall mean any information not
generally known in the relevant trade or industry, which was obtained from
Xxxxx or which was learned, discovered, developed, conceived, originated
or prepared during or as a result of the performance of any services by
XXXXXXXXXXXXX as an employee of Xxxxx or on behalf of Xxxxx, including,
without limitation, information concerning the provision of freight
forwarding services such as the cost of such services, price lists,
marketing programs or plans, lists of customers, potential customers,
dealers and contacts and other compilations of Confidential Information.
11. Each of the parties hereto acknowledges and agrees that the extent of
damages to Xxxxx in the event of a breach by XXXXXXXXXXXXX of this
Agreement would be impossible to ascertain and there is and will be
available to Xxxxx no adequate remedy at law to compensate it in the event
of such a breach. Consequently, XXXXXXXXXXXXX agrees that, in the event
that he breaches any of such covenants, Xxxxx shall be entitled, in
addition to any other relief to which it may be entitled including without
limitation money damages, to enforce any or all of such covenants by
injunctive or other equitable relief ordered by any court of competent
jurisdiction.
12. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
13. To ensure rapid and economical resolution of any disputes which may arise
under this Agreement, XXXXXXXXXXXXX and Xxxxx agree that any and all
disputes or controversies of any nature whatsoever, regarding the
interpretation, performance, enforcement or breach of this Agreement shall
be resolved by confidential, final and binding arbitration (rather than
trial by jury or court or resolution in any other forum) under the then
existing rules of Judicial Arbitration and Mediation Services ("JAMS") in
San Francisco, California. In the event that JAMS ceased to exist as an
arbitration service, any such matter shall be resolved by confidential,
final and binding arbitration under the then existing rules of the
American Arbitration Association in San Francisco, California. The
prevailing party in the arbitration shall be entitled to recover his or
its attorneys' fees and costs.
XXXXX COMPANIES, INC.
BY: /s/ Xxxxxx Xxxxxxxxxxxxx
By: /s/ Xxxxxxx X. Xxxxx
Title: Office of the Chairman
