EMPLOYMENT AGREEMENT
This employment agreement ("Agreement") is made and entered into effective
as of the ___ day of ___________, 2000 ("Effective Date"), by and between XXXXX
BROTHERS, INC. ("Company"), a Delaware corporation, and XXXX X. XXXXXX
("Employee"), a married man.
In consideration of the mutual promises and covenants contained herein, and
other good and valuable consideration, the receipt of which is acknowledged,
Company and Employee agree as provided in this Agreement.
1. EMPLOYMENT. Company hereby employs Employee, and Employee accepts
employment by Company, upon the terms and conditions contained in this
Agreement.
2. TERM. Employee's employment by Company shall commence on the Effective
Date, and shall continue for a two-year period from the date first written
above.
3. TITLE. During the period of Employee's employment by Company, Employee
shall be Vice President of the Company and shall have such rights, powers and
authority in such positions as may be designated by Company's Board of Directors
from time to time.
4. COMPENSATION. During the period of Employee's employment by Company,
Employee shall receive from Company an annual salary of $90,000.00, which shall
be payable proportionately on Company's regular payroll payment dates for its
employees.
5. FRINGE BENEFITS. During the period of Employee's employment by Company,
Employee shall be entitled to participate in all of Company's qualified
retirement plans and welfare benefit plans (e.g., group health insurance) on the
same basis as Company's other employees. In addition, during the period of
Employee's employment by Company, Employee shall be entitled to participate in
all non-qualified deferred compensation and similar compensation, bonus and
stock plans offered, sponsored or established by Company.
6. AUTOMOBILE ALLOWANCE, TELEPHONE AND CREDIT CARD. During the period of
Employee's employment by Company, Company shall furnish to Employee the
following:
(a) Company shall pay for up to $200 per month (which amount shall be
reviewed at three-month intervals) in automobile gasoline expenses charged to
Employee's AMEX corporate credit card, or the Company will reimburse Employee if
paid directly by Employee up to the agreed limit. In no event shall Company be
responsible for any other automobile related expenses, including but not limited
to insurance (however Employee shall maintain insurance coverage reasonably
satisfactory to Company), oil, tires, warranty and routine service and other
maintenance and repairs for the automobile. Employee acknowledges that he may
recognize taxable income in connection with Company's providing an auto
allowance.
(b) Company shall furnish to Employee a mobile or cellular telephone
for Employee's use and shall pay all charges in connection therewith (except
Employee shall reimburse Company for the charges each month that are in excess
of $200). The telephone to be furnished to Employee shall be agreed upon by
Company and Employee from time to time.
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(c) Company shall furnish to Employee a Company AMEX corporate credit
card and long distance telephone card for Employee to use solely for purposes of
Company.
7. CONFIDENTIALITY.
(a) During the period of Employee's employment by Company and for a
three year period thereafter, Employee shall hold in confidence and shall not
disclose or publish, except in the performance of his duties under this
Agreement, any Confidential Information (as defined below) that is presented or
disclosed to him in connection with his employment by Company.
(b) Subject to the provisions of Section 9(c) below, for purposes of
this Agreement the term "Confidential Information" shall mean information or
material that is proprietary to and owned by Company. Such Confidential
Information shall include, without limitation, Company's recipes for specialty
potato chips, manufacturing processes, financial information, customer lists,
supplier lists and pricing information.
(c) Notwithstanding the foregoing, the term Confidential Information
shall not include any information or material that:
(i) is in, or has passed into, the public domain;
(ii) is lawfully received by Employee from a third party;
(iii) is required to be disclosed by Employee by law or pursuant
to an order determination issued by a court or any federal, state or
municipal regulatory or administrative agency; or
(iv) was in the possession of, or known by, Employee prior to his
Employment by Company.
(d) Employee acknowledges that the Confidential Information of Company
is unique in character and that Company would not have an adequate remedy at law
for a material breach or threatened material breach by Employee of his covenants
under this Section 7. Employee therefor agrees that, in the event of any such
material breach or threat thereof, Company may obtain a temporary and/or
permanent injunction or restraining order to enjoin Employee from such material
breach or threat thereof, in addition to any other rights or remedies available
to Company at law or in equity.
(e) Notwithstanding the foregoing, Employee may disclose Confidential
Information to his attorneys and other advisors on a need to know basis provided
the recipient is directed and required to maintain the disclosed Confidential
Information in confidence.
8. INDEMNIFICATION.
(a) Company shall indemnify and hold Employee harmless and defend
Employee for, from and against all claims, liabilities, obligations, fines,
penalties and other matters and all costs and expenses relating to or arising
out of acts of Employee during the course of his employment with the Company or
such subsidiary or affiliated entity, that is permitted by applicable law,
except as any of the foregoing arises out of or relates to Employee's
negligence, willful malfeasance and/or breach of this Agreement.
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(b) Company represents and warrant to Employee that neither its
articles of incorporation nor its bylaws nor any resolutions of its shareholders
or board of directors restricts or limits Companies rights or obligations to
indemnify Employee as provided in subsection (a) of this Section 8, except to
the extent such restrictions or limitations are required by applicable law.
9. NONCOMPETE. During the period of Employee's employment by Company,
Employee shall not, for a period of three (3) years following the date of
termination of their employment ("Time Limit"):
(a) directly or indirectly, either individually or as a principal,
partner, agent, employee, employer, consultant, stockholder, joint venturer,
member, manager or investor or as a director or officer of any corporation or
association, or in any other manner or capacity whatsoever, engage in, assist or
have any active interest in a business located anywhere in: (w) the continental
United States; (x) that region of the United States west of the Mississippi
River; (y) the State of Colorado; and (z) the area within a 200 mile radius of
metropolitan Boulder, Colorado ("Boulder Metro") that: (i) engages in or
competes with or is similar in concept, design, format or otherwise to the
business conducted, or products developed or distributed, now or or at anytime
during the term of this Agreement, by Xxxxx Brothers, or the Company or any
corporate or other successor of the Company or its business. Said business is
hereby stipulated to include the sale, distribution, conception or development
of any snack food or other consumable food product bearing or sold under the
so-called "Boulder" trade name, whether now or at anytime during the term of
this Agreement developed, distributed, conceived, sold or otherwise dealt in by
either the Company or Xxxxx Brothers; or (ii) sells to, supplies, provides goods
or services to, purchases from or does business in any manner with Xxxxx
Brothers or the Company. Notwithstanding the above, this Section 9(a) shall not
be construed to prohibit Employee from owning less than one percent (1%) of the
securities of a corporation which is publicly traded on a securities exchange or
over-the-counter; or
(b) directly or indirectly, either individually, or as a principal,
partner, agent, employee, employer, consultant, stockholder, joint venturer,
manager, member or investor, or as a director or officer of any corporation or
association, or in any other manner or capacity whatsoever: (i) divert or
attempt to divert from Xxxxx Brothers or the Company any business with any
customer or account with which Employee had any contact or association, which
was under the supervision of Employee or the identity of which was learned by
Employee as a result of Employee's employment or association, with Xxxxx
Brothers or the Company; or (ii) induce any salesperson, distributor, supplier,
vendor, manufacturer, broker, representative, agent, jobber or other person
transacting business with Xxxxx Brothers or the Company to terminate their
relationship or association with Xxxxx Brothers or the Company, or to represent,
distribute or sell services or products in competition with services or products
of Xxxxx Brothers or the Company; or (iii) induce or cause any employee of Xxxxx
Brothers or the Company to leave the employ of Xxxxx Brothers or the Company.
Employee acknowledges that the foregoing limitations are minimum limitations
which are necessary to protect the legitimate interests of Company because of
Employee's sensitive executive position with Company. Therefore, if a breach of
the foregoing shall occur, in addition to any action for damages which Company
may have, Company shall have the right to obtain an injunction as a matter of
right prohibiting Employee's competition in violation of the foregoing.
In case any one or more of the provisions or parts of a provision contained in
this Section 9 shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Section or any other jurisdiction, but this Section shall be reformed and
construed in any such jurisdiction as if shall invalid or illegal or
unenforceable provision or part of a provision had never been contained herein
and such provision or part shall be reformed so that it would be valid, legal
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and enforceable to the maximum extent permitted in such jurisdiction. Without
limiting the foregoing, the parties intend that the covenants and agreements
contained in parts (w), (x), (y) or (z) of Section 9(a) shall be deemed to be a
series of separate covenants and agreements, one for each of the continental
United States, the region of the United States west of the Mississippi River,
the State of Colorado and Boulder Metro. If, in any judicial proceeding, a court
shall refuse to enforce all the separate covenants and agreements deemed to be
included in parts (w), (x), (y) or (z) of Section 9(a), it is the intention of
the parties hereto that the covenants and agreements which, if eliminated, would
permit the remaining separate covenants and agreements to be enforced in such
proceeding shall, for the purpose of such proceeding, be deemed eliminated from
the provisions of parts (w), (x), (y) or (z) of Section 9(a). Similarly, the
three (3) year Time Limit set forth in Section 9(a) above, if found to be
excessive or if a court shall refuse to enforce same, shall be construed as a
consecutive series of thirty six (36) month periods which may be reduced,
consecutively, on a month-to-month basis, it being the intention of the parties
that the length of the covenants and agreements which, if reduced and/or
eliminated on a month-to-month basis, would permit the remaining separate
covenants and agreements to be enforced in any proceeding shall, for the purpose
of such proceeding, be deemed eliminated in one-month increments from the
initially stated Time Limit in Section 9(a) and are deemed in that regard
severable herefrom.
10. ADDITIONAL PROVISIONS.
(a) This Agreement shall not be assigned by either Company or Employee
without the other party's prior written consent; otherwise, this Agreement shall
be binding upon, and shall inure to the benefit of, the heirs, personal
representatives, successors and assigns of Company and Employee respectively.
(b) This Agreement and the rights and obligations of Company and
Employee shall be governed by, and shall be construed in accordance with, the
laws of the State of Arizona without the application of any laws of conflicts of
laws that would require or permit the application of the laws of any other
jurisdiction.
(c) Time is of the essence of this Agreement and each provision
hereof.
(d) This Agreement sets forth the entire understanding of Company and
Employee with respect to the matters set forth herein and cannot be amended or
modified except by an instrument in writing signed by the party against whom
enforcement is sought.
(e) This Agreement is the result of negotiations between Company and
Employee, and Company and Employee hereby waive the application of any rule of
law that otherwise would be applicable in connection with the interpretation and
construction of this Agreement that ambiguous or conflicting terms or provisions
are to be interpreted or construed against the party who (or whose attorney)
prepared the executed Agreement or any earlier draft of the same.
(f) If any provision or any portion of any provision of this Agreement
shall be deemed to be invalid, illegal or unenforceable, the same shall not
alter the remaining portion of such provision or any other provision of this
Agreement, as each provision of this Agreement and portion thereof shall be
deemed severable.
(g) Except as may be otherwise required by law, any notice required or
permitted to be given under this Agreement shall be given in writing and shall
be given either by (i) personal delivery, or (ii) overnight courier service, or
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(iii) facsimile transmission, or (iv) United States certified or registered
mail, in each case with postage prepaid to the following address or to such
other address as Company or Employee may designate by notice given to the other
party pursuant to this section. Notice shall be effective on (v) the day notice
is personally delivered, if notice is given by personal delivery, or (vi) the
first business day after the date of delivery to the overnight delivery service,
if notice is given by such a delivery service, (vii) the day notice is received,
if notice is given by facsimile, or (viii) the fourth business day after notice
is deposited in the United States mail, if notice is given by United States
certified or registered mail.
Company: XXXXX BROTHERS, INC.
0000 X. Xx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Fax No. (000) 000-0000
Employee: Xxxx X. Xxxxxx
_________________________
_________________________
Fax No. (___)____________
(h) If any action, suit or proceeding is brought in connection with
this Agreement, or on account of any breach of this Agreement, or to enforce or
interpret any of the terms, covenants and conditions of this Agreement, the
prevailing party shall be entitled to recover from the other party or parties,
the prevailing party's reasonable attorneys' fees and costs, and the amount
thereof shall be determined by the court (not by a jury) or the arbitrator and
shall be made a part of any judgment or award rendered.
XXXXX BROTHERS, INC.
By
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Its
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Employee:
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Xxxx X. Xxxxxx
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