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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
1. Period of Employment
2. Position and Responsibilities
3. Compensation and Benefits
4. Termination of Employment
5. Proprietary Information
6. Arbitration
7. Notices
8. Action by Odwalla
9. Integration
10. Amendments; Waivers
11. Assignment; Successors and Assigns
12. Severability
13. Attorneys' Fees
14. Injunctive Relief
15. Governing Law
16. Interpretation
17. Employee Acknowledgment
This Agreement, dated as of May 2, 2000, is between Odwalla, Inc., a
California corporation ("Odwalla"), and Xxxxxxx X. Xxxxx ("Xxxxx").
RECITALS
Odwalla and Xxxxx wish to enter into their employment relationship on the
following terms and conditions.
Odwalla recognizes and acknowledges that Xxxxx has been valuable and
instrumental in developing Fresh Samantha's business and good will.
Xxxxx acknowledges the compensation conferred upon him by this employment
agreement, consisting of additional salary, health benefits, and option vesting
provisions in the event Xxxxx is terminated without Cause or is Involuntarily
Terminated following a Change in Control or Corporate Transaction, as provided
below.
Odwalla has spent significant time, effort, and money to develop certain
Proprietary Information (as defined below), which Odwalla considers vital to its
business and goodwill.
The Proprietary Information will necessarily be communicated to or acquired by
Xxxxx in the course of his employment with Odwalla, and Odwalla wishes to
continue its employment relationship with Xxxxx only if, in doing so, it can
protect its Proprietary Information and goodwill.
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ACCORDINGLY, the parties agree as follows:
1. Period of Employment.
(a) Basic Term. Odwalla shall continue to employ Xxxxx to render services to
Odwalla in the position and with the duties and responsibilities described in
Section 2 for the period (the "Period of Employment") commencing on the date of
this Agreement and ending upon the earlier of (i) December 21, 2002, as, and to
the extent, extended under Section 1(b); or (ii) the date upon which the Period
of Employment is terminated in accordance with Section 4.
(b) Renewal. Subject to Section 4, Xxxxx'x employment will be renewed
automatically for an additional one (1) year period (without any action by
either party) on December 21, 2002 and on each anniversary thereof, unless one
party gives to the other written notice sixty (60) days in advance of the
beginning of any one-year renewal period that the Period of Employment is to be
terminated. In no event shall the Period of Employment under this Agreement
extend or be renewed beyond December 21, 2005. Either party may elect not to
renew this Agreement with or without cause, in which case this Section 1(b)
shall govern Xxxxx'x termination and not Section 4 (except for Xxxxx'x
termination obligations set forth in Section 4(h), which shall remain in
effect). Nothing stated in this Agreement or represented orally or in writing to
either party shall create an obligation to renew this Agreement.
2. Position and Responsibilities.
(a) Position. Xxxxx accepts employment with Odwalla as President and shall
perform all services appropriate to that position, as well as such other
services as may be assigned by Odwalla. Xxxxx shall devote his best efforts and
full-time attention to the performance of his duties. Xxxxx shall be subject to
the direction of Odwalla, which shall retain full control of the means and
methods by which he performs the above services and of the place(s) at which all
services are rendered. Xxxxx shall be expected to travel if necessary or
advisable in order to meet the obligations of his position.
(b) Other Activity. Except upon the prior written consent of Odwalla, Xxxxx
(during the Period of Employment) shall not (i) accept any other employment; or
(ii) engage, directly or indirectly, in any other business, commercial, or
professional activity (whether or not pursued for pecuniary advantage) that is
or may be competitive with Odwalla, that might create a conflict of interest
with Odwalla, or that otherwise might interfere with the business of Odwalla, or
any Affiliate. An "Affiliate" shall mean any person or entity that directly or
indirectly controls, is controlled by, or is under common control with Odwalla.
So that Odwalla may be aware of the extent of any other demands upon Xxxxx'x
time and attention, Xxxxx shall disclose in confidence to Odwalla the nature and
scope of any other business activity in which he is or becomes engaged during
the Period of Employment.
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3. Compensation and Benefits.
(a) Compensation. In consideration of the services to be rendered under this
Agreement, Odwalla shall pay Xxxxx One Hundred Ninety Thousand Dollars
($190,000) per year, payable bi-weekly, pursuant to the procedures regularly
established, and as they may be amended, by Odwalla in its sole discretion,
during the Period of Employment. Odwalla shall review annually Xxxxx'x
compensation and shall determine, in its sole discretion, whether and how much
the existing compensation shall be adjusted, without regard to any policy or
practice Odwalla may have for adjusting salaries. All compensation and
comparable payments to be paid to Xxxxx under this Agreement shall be less
withholdings required by law.
(b) Benefits. Pursuant to the Compensation Committee's decision of June 14,
1999, regarding Senior Executive Officer vacation policy, Xxxxx will not accrue
vacation leave. Xxxxx shall have the right to participate in and to receive
benefits from all present and future benefit plans specified in Odwalla's
policies and generally made available to similarly situated employees of
Odwalla. The amount and extent of benefits to which Xxxxx is entitled shall be
governed by the specific benefit plan, as amended. Xxxxx also shall be entitled
to any benefits or compensation tied to termination as described in Section 4.
Odwalla reserves the ability, in its sole discretion, to adjust Xxxxx'x benefits
provided under this Agreement. No statement concerning benefits or compensation
to which Xxxxx is entitled shall alter in any way the term of this Agreement,
any renewal thereof, or its termination.
(c) Expenses. Odwalla shall reimburse Xxxxx for reasonable travel and other
business expenses incurred by Xxxxx in the performance of his duties, in
accordance with Odwalla's policies, as they may be amended in Odwalla's sole
discretion.
(d) Options. At the first meeting of the Board of Directors Compensation
Committee ("Compensation Committee") scheduled after the date of this Agreement,
Odwalla's Chief Executive Officer will recommend that the Compensation Committee
award Xxxxx options to purchase one hundred thirty thousand (130,000) shares of
Odwalla common stock under the 1997 Stock Option/Stock Issuance Plan, as
amended. The terms recommended to the Compensation Committee are as follows:
vesting, forty-eight (48) months with one-forty-eighth (1/48) of the award
vesting monthly; option price, closing price quoted on NASDAQ as of the date of
the award; vesting start date, the date of this Agreement.
(e) Temporary Housing. As provided in Exhibit A to this Agreement.
4. Termination of Employment.
(a) By Death. The Period of Employment shall terminate automatically upon the
death of Xxxxx. Odwalla shall pay to Xxxxx'x beneficiaries or estate, as
appropriate, any compensation then due and owing, if any. Thereafter, all
obligations of Odwalla under this Agreement shall cease. Any stock option
outstanding at the time of Xxxxx'x death
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shall remain exercisable by the personal representative of Xxxxx'x estate or by
the person or persons to whom the option is transferred pursuant to Xxxxx'x will
or in accordance with the laws of descent and distribution and may be exercised
as provided by the relevant Stock Option Agreement. Nothing in this Section
shall affect any entitlement of Xxxxx'x heirs to the benefits of any life
insurance plan or other applicable benefits.
(b) By Disability. If, by reason of any physical or mental incapacity, Xxxxx
cannot perform his duties under this Agreement for six (6) consecutive months,
then, to the extent permitted by law, Xxxxx'x Period of Employment will be
automatically terminated. Odwalla shall supplement any benefits Xxxxx receives
under Odwalla's disability plans to the extent necessary to make Xxxxx'x net
compensation whole and shall provide applicable benefits to which he is entitled
up through the last business day on which the Period of Employment was
terminated; thereafter, all obligations of Odwalla under this Agreement shall
cease. Nothing in this Section shall affect Xxxxx'x rights under any applicable
Odwalla disability plan.
(c) By Employer Not For Cause. At any time, Odwalla may terminate Xxxxx without
Cause (as defined below) by providing Xxxxx sixty (60) days' advance written
notice, provided Odwalla:
(i) pays Xxxxx all compensation due to Xxxxx through December 21, 2002,
or the relevant anniversary thereof, if this Agreement has been
automatically renewed as provided by Section 1(b). The compensation due
to Xxxxx during this period will be based on Xxxxx'x salary as of the
effective date of termination and will be payable on a bi-weekly basis;
(ii) reimburses Xxxxx for the cost of acquiring health benefits, through
COBRA or, to the extent Xxxxx'x eligibility for COBRA ends prior to the
fulfillment of this obligation, through the independent purchase of
comparable health benefits, through December 21, 2002, or the relevant
anniversary thereof, if this Agreement has been automatically renewed as
provided by Section 1(b); and
(iii) automatically accelerates each outstanding stock option so that
each such option shall, at the time Xxxxx'x termination becomes
effective, become fully exercisable with respect to the total number of
shares of stock at the time subject to such option and may be exercised
for any or all of those shares as fully vested shares. Any options so
accelerated shall remain exercisable for the limited period set forth in
the stock option agreements evidencing the option, but no such option
shall be exercisable after the expiration of the option term.
Odwalla shall have the option, in its complete discretion, to terminate Xxxxx at
any time prior to the end of the sixty (60) day notice period.
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(d) By Employer For Cause. At any time, and without prior notice, Odwalla may
terminate Xxxxx for Cause. Odwalla shall pay Xxxxx all compensation then due and
owing; thereafter, all of Odwalla's obligations under this Agreement shall
cease. Termination shall be for "Cause" if Xxxxx: (i) acts in bad faith and to
the detriment of Odwalla; (ii) refuses or fails to act in accordance with any
specific direction or order of Odwalla; (iii) exhibits in regard to his
employment unfitness or unavailability for service, unsatisfactory performance,
misconduct, dishonesty, habitual neglect, or incompetence; (iv) is convicted of
a crime involving dishonesty, breach of trust, or physical or emotional harm to
any person; (v) is selected for layoff pursuant to a bona fide
reduction-in-force; or (vi) breaches any material term of this Agreement. If
termination is due to Xxxxx'x disability, Section 4(b) above shall control, and
not this subsection on termination for Cause.
(e) By Employee Not for Good Reason. At any time, Xxxxx may terminate his
employment without Good Reason (as defined below) by providing Odwalla thirty
(30) days' advance written notice. Odwalla shall have the option, in its
complete discretion, to make Xxxxx'x termination effective at any time prior to
the end of such notice period, provided Odwalla pays Xxxxx all compensation due
and owing through the last day actually worked, plus an amount equal to the base
salary Xxxxx would have earned through the balance of the above notice period,
not to exceed thirty (30) days; thereafter, all of Odwalla's obligations under
this Agreement shall cease.
(f) By Employee for Good Reason. Xxxxx may terminate his employment for Good
Reason by giving Odwalla thirty (30) days' advance written notice. Termination
shall be for "Good Reason" if:
(i) the position, duties, or responsibilities assigned to Xxxxx are
materially and adversely changed; or
(ii) Odwalla fails to comply in any material respect with any of its
material covenants and agreements hereunder.
Xxxxx'x written notice of termination of his employment for Good Reason shall
specify with reasonable detail the nature of the grounds for such termination
and provide Odwalla with a period of thirty (30) days during which Odwalla shall
be given the opportunity to cure the condition constituting Good Reason. Any
such notice shall be made not more than forty-five (45) days after the
occurrence of the event that is the basis for the Good Reason. If the condition
is remedied within the thirty (30) day notice period, Xxxxx'x notice of
termination shall be rescinded automatically; if not remedied, termination shall
become effective upon the expiration of the above notice period. In the event
Xxxxx terminates his employment for Good Reason pursuant to this section, and
Odwalla fails to cure the condition constituting Good Reason, Xxxxx shall be
entitled to receive severance pay in an amount equal to Xxxxx'x base salary then
in effect (as specified pursuant to Section 3(a)) for a period of twelve (12)
months and reimbursement for the cost of acquiring health benefits through COBRA
for a period of twelve (12) months. Such severance pay shall be in lieu of any
damages under this Agreement for any alleged breach. Thereafter, all of
Odwalla's obligations under this Agreement shall
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cease. Odwalla shall also have the option, in its complete discretion, to make
Xxxxx'x termination effective at any time prior to the end of the notice period,
provided that Odwalla pays Xxxxx all compensation due and owning through the
balance of the notice period (not to exceed thirty (30) days), in addition to
the payment of twelve (12) months base salary and health benefits reimbursement
described above. Such severance pay and health benefits reimbursement shall be
paid in accordance with Odwalla's normal payroll cycle.
(g) Involuntary Termination Following Change in Control/Corporate Transaction.
To the extent permitted by law, Odwalla, in its sole discretion, may terminate
the Period of Employment (in which case all of Odwalla's obligations under this
Agreement shall cease after payment of all compensation due and owing) upon any
formal action of Odwalla's management to effect a Change in Control or a
Corporate Transaction as those terms are defined in the 1997 Stock Option/Stock
Issuance Plan, as amended. In the event Xxxxx is subjected to of an Involuntary
Termination, as the term is defined in the 1997 Stock Option/Stock Issuance
Plan, as amended, within twelve (12) months of a Change in Control or a
Corporate Transaction, Odwalla will:
(i) pay Xxxxx all compensation due to Xxxxx through December 21, 2002,
or the relevant anniversary thereof, if this Agreement has been
automatically renewed as provided by Section 1(b). The compensation due
to Xxxxx during this period will be based on Xxxxx'x salary as of the
effective date of the Involuntary Termination and will be payable on a
bi-weekly basis;
(ii) reimburse Xxxxx for the cost of acquiring health benefits, through
COBRA or, to the extent Xxxxx'x eligibility for COBRA ends prior to the
fulfillment of this obligation, through the independent purchase of
comparable health benefits, through December 21, 2002, or the relevant
anniversary thereof, if this Agreement has been automatically renewed as
provided by Section 1(b); and
(iii) automatically accelerate each outstanding stock option so that
each such option shall, immediately upon an Involuntary Termination of
Xxxxx'x Service, become fully exercisable with respect to the total
number of shares of stock at the time subject to such option and may be
exercised for any or all of those shares as fully vested shares. Any
options so accelerated shall remain exercisable for the limited period
set forth in the stock option agreements evidencing the option, but no
such option shall be exercisable after the expiration of the option
term.
In addition, notwithstanding any provision of this Agreement to the contrary,
the total payments or benefits to be made or provided to Xxxxx by Odwalla
(whether pursuant to this Agreement or otherwise) due to a Change of Control or
Corporate Transaction shall not exceed three times Xxxxx'x annualized includible
compensation for the base period, as defined in subsection (d) of Section 280G
of the Internal Revenue Code of 1986 ("Code"), minus one dollar ($1.00). The
intent of this portion of this Section is to prevent any payment or benefit,
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including the acceleration of vesting of any outstanding and unvested stock
options, to Xxxxx from being subject to the excise tax imposed by Code Section
4999.
(h) Termination Obligations.
(i) Xxxxx agrees that all property, including, without limitation, all
equipment, tangible Proprietary Information (as defined below), documents,
books, records, reports, notes, contracts, lists, computer disks (and other
computer-generated files and data), and copies thereof, created on any medium
and furnished to, obtained by, or prepared by Xxxxx in the course of or incident
to his employment, belongs to Odwalla and shall be returned promptly to Odwalla
upon termination of the Period of Employment.
(ii) All benefits to which Xxxxx is otherwise entitled shall cease upon
Xxxxx'x termination, unless explicitly continued either under this Agreement or
under any specific written policy or benefit plan of Odwalla.
(iii) Upon termination of the Period of Employment, Xxxxx shall be deemed to
have resigned from all offices then held with Odwalla or any Affiliate.
(iv) The representations and warranties contained in this Agreement and
Xxxxx'x obligations under this Section 4(h) on Termination Obligations and
Section 5 on Proprietary Information shall survive the termination of the Period
of Employment and the expiration of this Agreement.
(v) Following any termination of the Period of Employment, Xxxxx shall fully
cooperate with Odwalla in all matters relating to the winding up of pending work
on behalf of Odwalla and the orderly transfer of work to other employees of
Odwalla. Xxxxx shall also cooperate in the defense of any action brought by any
third party against Odwalla that relates in any way to Xxxxx'x acts or omissions
while employed by Odwalla or in the defense of any action brought by any third
party relating to litigation pending against Odwalla at the time the Period of
Employment is terminated.
5. Proprietary Information.
(a) Defined. "Proprietary Information" is all information and any idea in
whatever form, tangible or intangible, pertaining in any manner to the business
of Odwalla, or any Affiliate, or its employees, clients, consultants, or
business associates, which was produced by any employee of Odwalla in the course
of his or her employment or otherwise produced or acquired by or on behalf of
Odwalla. All Proprietary Information not generally known outside of Odwalla's
organization, and all Proprietary Information so known only through improper
means, shall be deemed "Confidential Information." Xxxxx should consult any
Odwalla procedures instituted to identify and protect certain types of
Confidential Information, which are considered by Odwalla to be safeguards in
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addition to the protection provided by this Agreement. Nothing contained in
those procedures or in this Agreement is intended to limit the effect of the
other.
(b) General Restrictions on Use. During the Period of Employment, Xxxxx shall
use Proprietary Information, and shall disclose Confidential Information, only
for the benefit of Odwalla and as is necessary to carry out his responsibilities
under this Agreement. Following termination, Xxxxx shall neither, directly or
indirectly, use any Proprietary Information nor disclose any Confidential
Information, except as expressly and specifically authorized in writing by
Odwalla. The publication of any Proprietary Information through literature or
speeches must be approved in advance in writing by Odwalla.
(c) Location and Reproduction. Xxxxx shall maintain at his work station and/or
any other place under his control only such Confidential Information as he has a
current "need to know." Xxxxx shall return to the appropriate person or location
or otherwise properly dispose of Confidential Information once that need to know
no longer exists. Xxxxx shall not make copies of or otherwise reproduce
Confidential Information unless there is a legitimate business need for
reproduction.
(d) Prior Actions and Knowledge. Xxxxx represents and warrants that from the
time of his first contact with Odwalla, he has held in strict confidence all
Confidential Information and has not disclosed any Confidential Information,
directly or indirectly, to anyone outside of Odwalla, or used, copied,
published, or summarized any Confidential Information, except to the extent
otherwise permitted in this Agreement.
(e) Third-Party Information. Xxxxx acknowledges that Odwalla has received and in
the future will receive from third parties their confidential information
subject to a duty on Odwalla's part to maintain the confidentiality of this
information and to use it only for certain limited purposes. Xxxxx agrees that
he owes Odwalla and these third parties, during the Period of Employment and
thereafter, a duty to hold all such confidential information in the strictest
confidence and not to disclose or use it, except as necessary to perform his
obligations hereunder and as is consistent with Odwalla's agreement with third
parties.
(f) Competitive Activity. Xxxxx acknowledges and agrees that the pursuit of the
activities forbidden by this subsection would necessarily involve the use or
disclosure of Confidential Information in breach of the preceding subsections,
but that proof of such a breach would be extremely difficult. To forestall this
disclosure, use, and breach, and in consideration of the employment under this
Agreement, Xxxxx agrees that for a period of one (1) year following the
termination of his employment relationship with Odwalla or for any period in
which he is entitled to payments and health benefits pursuant to Sections 4(c)
and 4(f), whichever is greater, he shall not, directly or indirectly, (i) divert
or attempt to divert from Odwalla (or any Affiliate) any business of any kind in
which it is engaged; (ii) employ or recommend for employment any person employed
by Odwalla (or any Affiliate); or (iii) engage in any business activity that is
or may be competitive with Odwalla (or any Affiliate) in any state where Odwalla
conducts its business, unless
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Xxxxx can prove that any action taken in contravention of this subsection was
done without the use in any way of Confidential Information. Additionally, in
consideration of the employment under this Agreement, Xxxxx agrees that upon the
event that he, directly or indirectly, (i) diverts or attempts to divert from
Odwalla (or any Affiliate) any business of any kind in which it is engaged; (ii)
employs or recommends for employment any person employed by Odwalla (or any
Affiliate); or (iii) engages in any business activity that is or may be
competitive with Odwalla (or any Affiliate) in any state where Odwalla conducts
its business, during such time as that Xxxxx is not employed by Odwalla but
receiving payments and health benefits pursuant to Sub-Sections 4(c) and 4(f),
all of Odwalla's obligations under this Agreement shall cease.
(g) Interference with Business. In order to avoid disruption of Odwalla's
business, Xxxxx agrees that for a period of one (1) year after termination of
the Period of Employment, he shall not, directly or indirectly, (i) solicit any
customer of Odwalla (or any Affiliate) known to Xxxxx during the Period of
Employment to have been a customer; or (ii) solicit for employment any person
employed by Odwalla (or any Affiliate). Additionally, Xxxxx agrees that in the
event he, directly or indirectly, (i) solicits any customer of Odwalla (or any
Affiliate) known to Xxxxx during the Period of Employment to have been a
customer; or (ii) solicits for employment any person employed by Odwalla (or any
Affiliate) during such time as that Xxxxx is not employed by Odwalla but
receiving payments and health benefits pursuant to Sub-Sections 4(c) and 4(f),
all of Odwalla's obligations under this Agreement shall cease.
(h) Maintenance of Records. Xxxxx agrees to keep and maintain adequate and
current written records of all sales and customer transactions, which records
shall be available to and remain the sole property of Odwalla at all times.
(i) The rights and obligations created in Section 5 of this Employment Agreement
are in addition to the rights and obligations contained the Employee Proprietary
Information Agreement executed by Xxxxx on August 3, 1993.
6. Arbitration.
(a) Arbitrable Claims. To the fullest extent permitted by law, all contractual
disputes between Xxxxx (and his attorneys, successors, and assigns) and Odwalla
(and its Affiliates, shareholders, directors, officers, employees, agents,
successors, attorneys, and assigns) arising under this Agreement ("Arbitrable
Claims") shall be resolved by arbitration. All persons and entities specified in
the preceding sentence (other than Odwalla and Xxxxx) shall be considered
third-party beneficiaries of the rights and obligations created by this Section
on Arbitration.
(b) Procedure. Arbitration of Arbitrable Claims shall be in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as amended ("AAA Employment Rules"), as augmented in
this Agreement. Arbitration shall be initiated as provided by the AAA Employment
Rules, although the
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written notice to the other party initiating arbitration shall also include a
statement of the claim(s) asserted and the facts upon which the claim(s) are
based. Arbitration shall be final and binding upon the parties and shall be the
exclusive remedy for all Arbitrable Claims. Either party may bring an action in
court to compel arbitration under this Agreement and to enforce an arbitration
award. Otherwise, neither party shall initiate or prosecute any lawsuit or
administrative action in any way related to any Arbitrable Claim.
Notwithstanding the foregoing, either party may, at its option, seek injunctive
relief pursuant to section 1281.8 of the California Code of Civil Procedure. All
arbitration hearings under this Agreement shall be conducted in San Francisco.
In any arbitration proceeding under this Agreement, the parties shall have the
rights to discovery provided for in the AAA Employment Rules. The interpretation
and enforcement of this agreement to arbitrate shall be governed by the
California Arbitration Act. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY
RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY
OF THE AGREEMENT TO ARBITRATE.
(c) Arbitrator Selection and Authority. All disputes involving Arbitrable Claims
shall be decided by a single arbitrator. The arbitrator shall be selected by
mutual agreement of the parties within thirty (30) days of the effective date of
the notice initiating the arbitration. If the parties cannot agree on an
arbitrator, then the complaining party shall notify the AAA and request
selection of an arbitrator in accordance with the AAA Employment Rules. The
arbitrator shall have only such authority to award equitable relief, damages,
costs, and fees as a court would have for the particular claim(s) asserted. The
fees of the arbitrator shall be split between both parties equally. If the
allocation of responsibility for payment of the arbitrator's fees would render
the obligation to arbitrate unenforceable, the parties authorize the arbitrator
to modify the allocation as necessary to preserve enforceability. The arbitrator
shall have exclusive authority to resolve all Arbitrable Claims, including, but
not limited to, any claim that all or any part of this Agreement is void or
unenforceable.
(d) Confidentiality. All proceedings and all documents prepared in connection
with any Arbitrable Claim shall be confidential and, unless otherwise required
by law, the subject matter thereof shall not be disclosed to any person other
than the parties to the proceedings, their counsel, witnesses and experts, the
arbitrator, and, if involved, the court and court staff. All documents filed
with the arbitrator or with a court shall be filed under seal. The parties shall
stipulate to all arbitration and court orders necessary to effectuate fully the
provisions of this subsection concerning confidentiality.
(e) Continuing Obligations. The rights and obligations of Xxxxx and Odwalla set
forth in this Section on Arbitration shall survive the termination of Xxxxx'x
employment and the expiration of this Agreement.
7. Notices. Any notice or other communication under this Agreement must be in
writing and shall be effective upon delivery by hand, upon facsimile
transmission to Odwalla (but only upon receipt by Xxxxx of a written
confirmation of receipt), or three (3) business
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days after deposit in the United States mail, postage prepaid, certified or
registered, and addressed to Odwalla or to Xxxxx at the corresponding address or
fax number (if any) below. Xxxxx shall be obligated to notify Odwalla in writing
of any change in his address. Notice of change of address shall be effective
only when done in accordance with this Section.
Odwalla's Notice Address:
Odwalla, Inc.
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx Xxx, XX 00000
Fax Number: 000-000-0000
Xxxxx'x Notice Address:
Xxxxxxx X. Xxxxx
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Cape Xxxxxxxxx, ME
8. Action by Odwalla. All actions required or permitted to be taken under this
Agreement by Odwalla, including, without limitation, exercise of discretion,
consents, waivers, and amendments to this Agreement, shall be made and
authorized only by the President or by his or her representative specifically
authorized in writing to fulfill these obligations under this Agreement.
9. Integration. This Agreement is intended to be the final, complete, and
exclusive statement of the terms of Xxxxx'x employment by Odwalla. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Xxxxx, and it may not be contradicted by evidence of
any prior or contemporaneous statements or agreements. To the extent that the
practices, policies, or procedures of Odwalla, now or in the future, apply to
Xxxxx and are inconsistent with the terms of this Agreement, the provisions of
this Agreement shall control.
10. Amendments; Waivers. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
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11. Assignment; Successors and Assigns. Xxxxx agrees that he will not assign,
sell, transfer, delegate, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. Nothing in this Agreement shall prevent the consolidation of Odwalla
with, or its merger into, any other entity, or the sale by Odwalla of all or
substantially all of its assets, or the otherwise lawful assignment by Odwalla
of any rights or obligations under this Agreement. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors, and
permitted assigns, and shall not benefit any person or entity other than those
specifically enumerated in this Agreement.
12. Severability. If any provision of this Agreement, or its application to any
person, place, or circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable, or void, such provision shall be
enforced to the greatest extent permitted by law, and the remainder of this
Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
13. Attorneys' Fees. In any legal action, arbitration, or other proceeding
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
14. Injunctive Relief. If Xxxxx breaches or threatens to breach any of the
covenants in Section 5 on Proprietary Information, the parties acknowledge and
agree that the damage or imminent damage to Odwalla's business or its goodwill
would be irreparable and extremely difficult to estimate, making any remedy at
law or in damages inadequate. Accordingly, Odwalla shall be entitled to
injunctive relief against Xxxxx in the event of any breach or threatened breach
of the above provisions by Xxxxx, in addition to any other relief (including
damages) available to Odwalla under this Agreement or under law.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of California.
16. Interpretation. This Agreement shall be construed as a whole, according to
its fair meaning, and not in favor of or against any party. By way of example
and not in limitation, this Agreement shall not be construed in favor of the
party receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
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17. Employee Acknowledgment. Xxxxx acknowledges that he has had the opportunity
to consult legal counsel in regard to this Agreement, that he has read and
understands this Agreement, that he is fully aware of its legal effect, and that
he has entered into it freely and voluntarily and based on his own judgment and
not on any representations or promises other than those contained in this
Agreement.
The parties have duly executed this Agreement as of the date first written
above.
--------------------------------
Xxxxxxx X. Xxxxx
Odwalla, Inc.
--------------------------------
By: D. Xxxxxxx X. Xxxxxxxxxx
Its: Chief Executive Officer
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Exhibit A
[ODWALLA LOGO]
DATE: February 1, 2000
TO: Xxxx Xxxxx
FROM: Xxxxxxx Xxxxxxxxxx
RE: Temporary Housing
Odwalla has agreed to cover the following temporary housing and related costs:
- Reimbursement of monthly rental costs not to exceed twelve months
(on a tax adjusted basis);
- Temporary housing deposits and/or advances needed to secure a
temporary residence (deposits and/or advances will need to be
returned in full to Odwalla);
- Temporary house hunting trips for you and your family not to exceed
two trips; and
- Payment for moving your family (including airfare if requested by
you) and household belongings from Maine to California.
The above referenced temporary housing and related costs will be available to
you effective as of the date of your Employment Agreement.
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