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EXHIBIT 10.2
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 December 21, 1999, is between Odwalla, Inc., a
California corporation ("Odwalla"), and Xxxxx X. Xxxxxxxx ("Xxxxxxxx").
RECITALS
Odwalla and Xxxxxxxx wish to continue their employment relationship on the
following terms and conditions.
Odwalla recognizes and acknowledges that Xxxxxxxx has been valuable and
instrumental in developing Odwalla's business and good will.
Xxxxxxxx acknowledges the additional compensation conferred upon him by this
employment agreement, consisting of additional salary, health benefits, and
option vesting provisions in the event Xxxxxxxx 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
Xxxxxxxx in the course of his employment with Odwalla, and Odwalla wishes to
continue its employment relationship with Xxxxxxxx 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 Xxxxxxxx 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, Xxxxxxxx'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 Xxxxxxxx'x termination and not Section 4 (except for Xxxxxxxx'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. Xxxxxxxx accepts employment with Odwalla as Senior Vice
President, Finance and Chief Financial Officer and shall perform all services
appropriate to that position, as well as such other services as may be assigned
by Odwalla. Xxxxxxxx shall devote his best efforts and full-time attention to
the performance of his duties. Xxxxxxxx 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. Xxxxxxxx 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, Xxxxxxxx
(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 Xxxxxxxx'x
time
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and attention, Xxxxxxxx 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.
3. Compensation and Benefits.
(a) Compensation. In consideration of the services to be rendered under this
Agreement, Odwalla shall pay Xxxxxxxx One Hundred Seventy-Five Thousand Dollars
($175,000) 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 Xxxxxxxx'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 Xxxxxxxx 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, Xxxxxxxx will not
accrue vacation leave. Xxxxxxxx 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 Xxxxxxxx is entitled
shall be governed by the specific benefit plan, as amended. Xxxxxxxx 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
Xxxxxxxx'x benefits provided under this Agreement. No statement concerning
benefits or compensation to which Xxxxxxxx is entitled shall alter in any way
the term of this Agreement, any renewal thereof, or its termination.
(c) Expenses. Odwalla shall reimburse Xxxxxxxx for reasonable travel and other
business expenses incurred by Xxxxxxxx in the performance of his duties, in
accordance with Odwalla's policies, as they may be amended in Odwalla's sole
discretion.
4. Termination of Employment.
(a) By Death. The Period of Employment shall terminate automatically upon the
death of Xxxxxxxx. Odwalla shall pay to Xxxxxxxx'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 Xxxxxxxx'x death shall remain exercisable by the
personal representative of Xxxxxxxx'x estate or by the person or persons to whom
the option is transferred pursuant to Xxxxxxxx'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 Xxxxxxxx'x heirs to the benefits of any life insurance plan or
other applicable benefits.
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(b) By Disability. If, by reason of any physical or mental incapacity,
Xxxxxxxx cannot perform his duties under this Agreement for six (6) consecutive
months, then, to the extent permitted by law, Xxxxxxxx'x Period of Employment
will be automatically terminated. Odwalla shall supplement any benefits Xxxxxxxx
receives under Odwalla's disability plans to the extent necessary to make
Xxxxxxxx'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 Xxxxxxxx'x rights
under any applicable Odwalla disability plan.
(c) By Employer Not For Cause. At any time, Odwalla may terminate Xxxxxxxx
without Cause (as defined below) by providing Xxxxxxxx sixty (60) days' advance
written notice, provided Odwalla:
(i) pays Xxxxxxxx all compensation due to Xxxxxxxx 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
Xxxxxxxx during this period will be based on Xxxxxxxx'x salary as of the
effective date of termination and will be payable on a bi-weekly basis;
(ii) reimburses Xxxxxxxx for the cost of acquiring health benefits,
through COBRA or, to the extent Xxxxxxxx'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 Xxxxxxxx'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 Xxxxxxxx
at any time prior to the end of the sixty (60) day notice period.
(d) By Employer For Cause. At any time, and without prior notice, Odwalla may
terminate Xxxxxxxx for Cause. Odwalla shall pay Xxxxxxxx all compensation then
due and owing; thereafter, all of Odwalla's obligations under this Agreement
shall cease. Termination shall be for "Cause" if Xxxxxxxx: (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
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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 Xxxxxxxx'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, Xxxxxxxx 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 Xxxxxxxx'x termination effective at any time prior
to the end of such notice period, provided Odwalla pays Xxxxxxxx all
compensation due and owing through the last day actually worked, plus an amount
equal to the base salary Xxxxxxxx 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. Xxxxxxxx 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 Xxxxxxxx are
materially and adversely changed; or
(ii) Odwalla fails to comply in any material respect with any of its
material covenants and agreements hereunder.
Xxxxxxxx'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, Xxxxxxxx'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
Xxxxxxxx terminates his employment for Good Reason pursuant to this section, and
Odwalla fails to cure the condition constituting Good Reason, Xxxxxxxx shall be
entitled to receive severance pay in an amount equal to Xxxxxxxx'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 cease. Odwalla shall also have
the option, in its complete discretion, to make Xxxxxxxx'x termination effective
at any time prior to the end of the notice period, provided that Odwalla pays
Xxxxxxxx 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.
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(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, as that
term is defined in the Addendum to Incentive Stock Option dated December 19,
1996, effective December 21, 1999, and Addendum to Stock Option Agreement dated
March 5, 1997, September 19, 1997, December 18, 1998, and June 14, 1999, each
effective December 21, 1999, or a Corporate Transaction, as that term is defined
in the 1997 Stock Option/Stock Issuance Plan. In the event Xxxxxxxx is subjected
to an Involuntary Termination, as that term is defined in the Addendum to
Incentive Stock Option dated December 19, 1996, effective December 21, 1999, and
Addendum to Stock Option Agreement dated March 5, 1997, September 19, 1997,
December 18, 1998, and June 14, 1999, each effective December 21, 1999, within
twelve (12) months of a Change in Control or a Corporate Transaction, Odwalla
will:
(i) pay Xxxxxxxx all compensation due to Xxxxxxxx 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
Xxxxxxxx during this period will be based on Xxxxxxxx'x salary as of the
effective date of the Involuntary Termination and will be payable on a
bi-weekly basis;
(ii) reimburse Xxxxxxxx for the cost of acquiring health benefits,
through COBRA or, to the extent Xxxxxxxx'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
Xxxxxxxx'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 Xxxxxxxx by Odwalla
(whether pursuant to this Agreement or otherwise) due to a Change of Control or
a Corporate Transaction shall not exceed three times Xxxxxxxx'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, including the acceleration of vesting of any outstanding and unvested
stock options, to Xxxxxxxx from being subject to the excise tax imposed by Code
Section 4999.
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(h) Termination Obligations.
(i) Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx is otherwise entitled shall cease
upon Xxxxxxxx'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, Xxxxxxxx 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
Xxxxxxxx'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, Xxxxxxxx
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. Xxxxxxxx shall also cooperate in the defense of any action
brought by any third party against Odwalla that relates in any way to Xxxxxxxx'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." Xxxxxxxx should consult any
Odwalla procedures instituted to identify and protect certain types of
Confidential Information, which are considered by Odwalla to be safeguards in
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, Xxxxxxxx
shall use
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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, Xxxxxxxx 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. Xxxxxxxx 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." Xxxxxxxx shall return to the appropriate person
or location or otherwise properly dispose of Confidential Information once that
need to know no longer exists. Xxxxxxxx shall not make copies of or otherwise
reproduce Confidential Information unless there is a legitimate business need
for reproduction.
(d) Prior Actions and Knowledge. Xxxxxxxx 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. Xxxxxxxx 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. Xxxxxxxx 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. Xxxxxxxx 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, Xxxxxxxx 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 Sub-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
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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 Xxxxxxxx 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, Xxxxxxxx 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 Xxxxxxxx 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, Xxxxxxxx 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 Xxxxxxxx during the Period of
Employment to have been a customer; or (ii) solicit for employment any person
employed by Odwalla (or any Affiliate). Additionally, Xxxxxxxx agrees that in
the event he, directly or indirectly, (i) solicits any customer of Odwalla (or
any Affiliate) known to Xxxxxxxx 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 Xxxxxxxx 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. Xxxxxxxx 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 Xxxxxxxx on August 3, 1993.
6. Arbitration.
(a) Arbitrable Claims. To the fullest extent permitted by law, all contractual
disputes between Xxxxxxxx (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 Xxxxxxxx) 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 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
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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 Xxxxxxxx and Odwalla
set forth in this Section on Arbitration shall survive the termination of
Xxxxxxxx'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 Xxxxxxxx of a written
confirmation of receipt), or three (3) business days after deposit in the United
States mail, postage prepaid, certified or registered, and addressed to Odwalla
or to Xxxxxxxx at the corresponding address or fax number (if any) below.
Xxxxxxxx shall be obligated to notify Odwalla in writing of any change in his
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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
Xxxxxxxx'x Notice Address:
Xxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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 Xxxxxxxx'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 Xxxxxxxx, 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
Xxxxxxxx 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.
11. Assignment; Successors and Assigns. Xxxxxxxx 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
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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 Xxxxxxxx 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 Xxxxxxxx in the event of any breach or threatened
breach of the above provisions by Xxxxxxxx, 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.
17. Employee Acknowledgment. Xxxxxxxx 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.
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The parties have duly executed this Agreement as of the date first written
above.
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Xxxxx X. Xxxxxxxx
Odwalla, Inc.
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By: D. Xxxxxxx X. Xxxxxxxxxx
Its: Chief Executive Officer
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