EXHIBIT (d)(5)
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 29th day of October, 2001, by and between Odwalla,
Inc. ("Company"), and Xxxxxxx X. Xxxxxxxxxx ("Employee"),
W I T N E S S E T H:
WHEREAS, Company acknowledges that Employee has provided valuable service
to Company prior to its anticipated merger with Xxxxx Xxxxxxx Corp.; and,
WHEREAS, Company desires to retain Employee at the Effective Time, as
defined in the Agreement and Plan of Merger dated October 29, 2001 among The
Coca-Cola Company, Xxxxx Xxxxxxx Corp. and Company (the "Close"); and,
WHEREAS, Employee is willing to be employed by Company; and
WHEREAS, upon the Close, Employee and Company wish to replace the existing
employment agreement between Employee and Odwalla, Inc. dated December 21, 1999.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. Employment. Contingent upon the Close, Company hereby employs Employee
as Chief Executive Officer and Employee hereby accepts such employment and
agrees to perform such duties as are customarily performed by one holding such
position and to render these or any other services and duties consistent with
such position as may be assigned from time to time by Company.
2. Performance of Employee's Duties. The Employee agrees to devote
substantially all of his business time to the faithful performance of his duties
for Company and to render service to Company to the best of his ability,
experience and talent to the reasonable satisfaction of Company. Such duties
shall be rendered at such place or places as Company shall require in accordance
with the best interests, needs, business and opportunities of Company.
Employee's office will be located in the San Francisco Bay Area and his duties
shall be primarily performed there.
3. Term of Employment. The term of employment shall commence upon the
Close, and terminate on December 31, 2002, unless renewed by the parties. The
term of employment will be renewed automatically for an additional one (1) year
period on December 31, 2002 and on each anniversary thereafter, unless one party
gives the other written notice sixty (60) days in advance of any renewal period.
In no event shall the term of employment under this Agreement extend beyond
December 31, 2005.
4. Compensation. All compensation under this Agreement is subject to
withholding required by law.
a. Salary. Company agrees to pay Employee, in consideration for
Employee's services hereunder, a salary at the rate of four-hundred fifty
thousand dollars ($450,000) annually, payable in equal semi-monthly
installments or in accordance with Company's normal pay practices as may be
altered from time to time by Company. Company shall review annually
Employee's compensation and shall determine, in its sole discretion,
whether and how much the existing compensation shall be adjusted.
b. Special Performance Award. Employee shall be eligible for a
Special Performance Award, payable in stock options of The Coca-Cola
Company, depending on performance against full year 2002 revenue dollar
growth and operating income rate targets. The performance targets will be
agreed upon shortly after the Close. For achieving the revenue and
operating income targets, the stock option award will equal 20,000 stock
options. The award will be granted in 1st Q 2003. Employee must have been
an employee of Company during the entirety of calendar year 2002 to be
eligible for the award payment.
5. Other Benefits.
a. Company shall provide Employee with such fringe benefits as are
normally provided to employees of Company holding positions and performing
duties substantially similar to those performed by Employee. Employee will be
entitled to five weeks of paid vacation per year. Employee will be covered under
Company's directors and officer insurance program and will be indemnified to the
fullest extent permitted by applicable law for Employee's actions taken on
behalf of Company
b. Employee shall be eligible to participate in The Coca-Cola Company's
stock option program, as it exists from time-to-time, as if an employee at job
grade level 17.
6. Expenses. Company shall reimburse Employee for reasonable travel and
other business expenses, including business class air travel, incurred by
Employee in the performance of his duties, in accordance with Company policies,
as Company may amend them.
7. Death, Incapacity or Illness of Employee.
a. If Employee dies during the term of this Agreement, Company shall pay
to the estate of the Employee only the compensation then due and owing. Except
as herein provided, the death of Employee shall terminate this Agreement and
discharge Company from any further liability for the payments provided herein.
b. In the event Employee becomes disabled, ill or unable to perform his
duties under this Agreement, his salary compensation shall continue for a period
of one hundred and eighty (180) days or until the expiration of this Agreement,
whichever comes first, and then will be suspended until the Employee can resume
performance of his duties during the remaining term of this Agreement, if any.
8. Expiration. At the expiration of Employee's term of employment (in
accordance with Paragraph 3 hereof), provided neither Company nor Employee has
previously terminated this Agreement as described in Paragraphs 9, 10, 11, or 12
hereof, Company shall:
a. Pay Employee his base salary then in effect for a period of one
year following the date of expiration (which amount shall be offset against
any severance payments to which Employee might be entitled under any
severance pay plan or policy of Company); and
b. Reimburse Employee for the cost of acquiring health benefits for
Employee and his family through COBRA for a period of one year.
9. Termination for Cause. Company may terminate this Agreement
immediately without liability or further obligation hereunder upon written
notice to Employee if the Employee commits any one or more of the following
acts:
a. Willful damaging of Company's property, business, reputation or
goodwill;
b. Commission of a felony;
c. Death, theft, dishonesty, fraud or embezzlement;
d. Inattention to or neglect of the duties to be performed by
Employee that is not the result of illness or accident and that is
materially harmful to Company;
e. The use of alcohol, narcotics or other controlled substances to
the extent that it prevents the Employee from efficiently performing
services for Company;
f. Willfully injuring of any other employee of Company;
g. Willfully injuring any person in the course of performance of
services for Company;
h. Disclosing to a competitor or other unauthorized persons
confidential or proprietary information or secrets of Company;
i. Solicitation of business on behalf of a competitor or a potential
competitor;
j. Harassment of any other employee of Company or the commission of
any act which otherwise creates an offensive work environment for other
employees of Company;
k. Failure of Employee for any reason within five days after receipt
by Employee of written notice thereof from Company, to correct, cease or
otherwise alter any insubordination, failure to comply with instructions or
other act or omission to act that in the opinion of Company does or may
materially adversely affect its business or operations; or
l. Breach by Employee of any material term of this Agreement;
No act shall be willful if it is performed in good faith and with the
belief that it is in Company's best interests. Company shall not be limited to
termination as a remedy for any improper or illegal act of Employee, but may
also seek damages, injunction or such other remedy as it may deem appropriate
under the circumstances.
10. Termination Not for Cause. Company may terminate this Agreement at
any time upon written notice to Employee for any reason not stated in Paragraph
9 hereof, provided Company:
a. Pays Employee his base salary then in effect for a period of one
year following the date of termination (which amount shall be offset
against any severance payments to which Employee might be entitled under
any severance pay plan or policy of Company); and
b. Reimburses Employee for the cost of acquiring health benefits for
Employee and his family through COBRA for a period of one year.
c. In the event of a termination not for cause, the parties shall
negotiate the treatment of the Special Performance Award.
11. Termination by Employee for Good Reason. Employee may terminate this
Agreement for Good Reason at any time upon written notice to Company. "Good
Reason" shall mean either: (i) Company causes Employee to cease to be Chief
Executive Officer of Company and have a position, duties and responsibilities
commensurate with such a title; (ii) Company reduces Employee's base salary; or
(iii) Company requires Employee to relocate outside the San Francisco Bay area.
In the event Employee terminates his employment for Good Reason, Company shall:
a. Pay Employee his base salary then in effect for a period of one
year following the date of termination (which amount shall be offset
against any severance payments to which Employee might be entitled under
any severance pay plan or policy of Company); and
b. Reimburse Employee for the cost of acquiring health benefits for
Employee and his family through COBRA for a period of one year.
c. In the event of a termination for Good Reason, the parties shall
negotiate the treatment of the Special Performance Award.
12. Termination by Employee Not for Good Reason. In the event Employee
terminates this Agreement not for Good Reason, Company shall have no further
obligation to Employee under this Agreement.
13. Limitation on Payments. In the event that the severance and other
benefits provided for in this Agreement or otherwise payable to Employee (i)
constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986 as amended (the "Code"), and (ii) would be subject
to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then
Employee's benefits under this Agreement shall be either (a) delivered in full,
or (b) delivered as to such lesser extent as would result in no portion of such
benefits being subject to the Excise Tax, whichever of the foregoing amounts,
taking into account the applicable federal, state and local income taxes and the
Excise Tax, results in the receipt by Employee on an after-tax basis, of the
greatest amount of benefits, notwithstanding that all or some portion of such
benefits may be taxable under Section 4999 of the Code.
Unless Company and Employee otherwise agree in writing, any determination
required under this Paragraph shall be made in writing by Company's independent
public accountants (the "Accountants"),
whose determination shall be conclusive and binding upon Employee and Company
for all purposes. For purposes of making the calculations required by this
Paragraph 13, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. Company and Employee shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this Paragraph 13. Company shall bear all costs that the
Accountants may reasonably incur in connection with any calculations
contemplated by this Paragraph 13.
14. Limitations on Other Employment. During the term hereof, Employee
shall not enter into the services of or be employed in any capacity or for any
purposes whatsoever, whether directly or indirectly, by any person, firm,
Company or entity other than Company, and will not, during said period of time,
be engaged in any business, enterprise or undertaking other than employment by
Company, with the exception that Employee may serve on the board of directors of
charitable organizations, and may continue his business relationships with
Avenal Land and Oil Company, Dalraddy Vineyards, and Kransco Inc., to the extent
doing so will not violate Paragraph 15 hereof.
15. Nonsolicitation and Noncompetition.
a. Employee agrees that he will not at any time while employed by
Company and for a period of two years following the expiration or
termination of his employment (the "Nonsolicitation Period"), whether
voluntarily or involuntarily, directly or indirectly for himself or any
other person or entity solicit, interfere with or endeavor to entice away
from The Coca-Cola Company or any of its direct or indirect subsidiaries
(collectively, "KO") any other Employee of KO. Additionally, Employee
agrees that during the Nonsolicitation Period any employment by Employee or
any entity in which he has an interest, directly or indirectly (other than
a publicly traded company in which he does not have a controlling interest)
of any person who was in the employ of KO within the preceding year, shall
be a violation of this paragraph.
b. Employee agrees that he will not at any time while employed by
Company and for a period of one year following expiration or termination of
his employment (the "Noncompetition Period"), for himself or on behalf of
any person, partnership, trust, company or other entity other than KO for
whatever reason engage, directly or indirectly (either as an employee,
officer, director, partner, shareholder, consultant or independent
contractor), in the manufacture, sale, or distribution of non-alcoholic
beverages in the United States. Employee further agrees that during the
Noncompetition Period he will not be connected, directly or indirectly,
with any person, the portion of any firm or company engaged in the
manufacture, sale, or distribution of non-alcoholic beverages in the United
States and that he will not directly or indirectly be employed or become a
partner, officer or stockholder of the portion of any firm or company
engaged in such business within the United States.
c. If in any judicial proceeding, a court shall refuse to enforce this
Agreement, whether because the time limit is too long or because the
restrictions contained herein are more extensive (whether as to geographic area,
scope of business or otherwise) than is necessary to protect the business and
goodwill of KO, it is expressly understood and agreed between the parties hereto
that this Agreement is deemed modified to the extent necessary to permit this
Agreement to be enforced in any such proceedings.
d. If Company or its successors in interest shall make application to a
court of competent jurisdiction for injunctive relief, then the Nonsolicitation
and Noncompetition Periods specified herein shall be tolled from the time of
application for injunctive relief until the date of final adjudication of the
claim for injunctive relief. Additionally, Employee waives, to the greatest
extent permissible, any requirement that Company post bond or other security as
a precondition to an injunction, whether temporary or permanent.
e. Employee acknowledges that compliance with this paragraph is necessary
to protect the goodwill and other proprietary interests of Company and that a
breach of this paragraph will give rise to irreparable and continuing injury to
Company that is not adequately compensable in monetary damages or at law.
Accordingly Employee agrees that Company, its successors and assigns may obtain
injunctive relief against the breach or threaten breach of the foregoing
provisions, in addition to any other legal remedies which may be available to
it under this Agreement. Employee further acknowledges that in the event of his
termination or expiration of employment with Company, his knowledge, experience
and capabilities are such that Employee can obtain employment in business
activities which are of a different or noncompeting nature than those performed
in the course of employment with Company; and that the enforcement of a remedy
hereunder by way of injunction will not prevent Employee from earning a
reasonable livelihood.
16. CONFIDENTIAL INFORMATION, TRADE SECRETS, AND INTELLECTUAL PROPERTY.
a. During the term of this Agreement and at all times thereafter, Employee
will keep in confidence and will not publish, use or disclose to others, without
the prior written consent of Company, any Trade Secrets or other confidential
information related to KO or KO's business. As used herein, the phrase "Trade
Secret" is to be considered as used in accordance with the definition of Trade
Secret found under Georgia law in effect at the time of the execution of this
Agreement. Without limiting this definition, and for information purposes only,
a Trade Secret is the whole or any portion of any technical or non-technical
information, including a formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, financial plan, product plan or
customer or supplier information that is actually or potentially valuable
because it is not generally known to others and that is subject to reasonable
efforts by KO to maintain its secrecy.
b. Upon leaving the employ of Company, Employee will not take with him any
written, printed or electronically stored Trade Secret, or other confidential
information or any other property of KO obtained by him as the result of his
employment, or any reproductions thereof. All such property and all copies
thereof shall be surrendered by Employee to Company on termination of employment
or at any time on request by Company.
c. Employee's obligation not to use, publish or disclose confidential
information of KO will cease five (5) years after termination or expiration of
employment. Employee's obligation not to use, publish or disclose any Trade
Secret of KO has no time limitation.
d. Employee shall disclose to Company and agrees to and does hereby assign
to Company, without charge, all his right, title and interest in and to any and
all inventions and discoveries that he may make, solely or jointly with others,
while in the employ of Company, that relate to or are useful or may be useful in
connection with business of the character carried on or contemplated by KO, and
all his right, title and interest in and to any and all domestic and foreign
applications for patents as well as any divisions or continuations thereof
covering such inventions and discoveries and any and all patents granted for
such inventions and discoveries and any and all reissues, extensions and
revivals of such patents; and upon request of Company, whether during or
subsequent to this employment, Employee shall do any and all acts and execute
and deliver such instruments as may be deemed by Company necessary or proper to
vest all Employee's right, title and interest in and to said inventions,
discoveries, applications and patents in Company and to secure or maintain such
applications, patents, reissues, extensions and/or revivals thereof. All
necessary and proper expenses in connection with the foregoing shall be borne by
Company, and if services in connection therewith are performed at Company's
request after termination of employment, Company will pay reasonable
compensation for such services. Any inventions and discoveries relating to KO's
business made by Employee within one year after termination of employment with
Company shall be deemed to be within this provision, unless Employee can prove
that the same were conceived and made following said termination and such
conception or invention is not based upon or related to any Trade Secret, as
defined herein, received pursuant to Employee's employment with Company.
e. Employee hereby assigns to Company, without charge, all his right,
title and interest in and to all original works of authorship filed in any
tangible form, prepared by him, solely or jointly with others, within the scope
of his employment by Company. In addition, Company and Employee hereby agree
that any such original work of authorship that qualifies as a "work made for
hire" under the U.S. copyright laws shall be a "work made for hire" and shall be
owned by Company.
f. Employee acknowledges and agrees that in the event he breaches,
threatens in any way to breach, or it is inevitable that he will breach, any of
the provisions of this Paragraph, damages shall be an inadequate
remedy and Company shall be entitled, without bond, to injunctive or other
equitable relief. Company's rights in this respect are in addition to all rights
otherwise available at law or in equity.
17. Waiver or Modification. No waiver or modification of this Agreement
or of any covenant, condition, or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith.
Furthermore, no evidence of any modification or waiver shall be offered or
received as evidence in any proceeding, arbitration or litigation between the
parties arising out of or affecting this Agreement or the rights or obligations
of any party hereunder, unless such waiver or modification is in writing, duly
executed as aforesaid. The provisions of this paragraph may not be waived except
as herein set forth.
18. Complete Agreement. This written Agreement contains the sole and
entire agreement between the parties as to the matters contained herein and,
effective upon the Close, supersedes any and all other agreements between them,
including in particular the employment agreement dated December 21, 1999 between
Company and Employee. The parties acknowledge and agree that neither of them has
made any representation with respect to such matters of this Agreement or any
representations except as are specifically set forth herein, and each party
acknowledges that he or it has relied on his or its own judgment in entering
into this Agreement.
19. Choice of Law. This Agreement and the performance hereunder and all
suits and special proceedings hereunder shall be construed in accordance with
the laws of the State of Georgia.
20. Invalid Provision. The invalidity or unenforceability of a particular
provision of this Agreement shall not effect the other provisions hereto, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
21. Binding Effect of Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, assigns and legal representatives.
22. Assignment. This Agreement shall be construed as a contract for
personal services by Employee to Company and shall not be assignable by
Employee.
23. Survival. The provisions of Paragraphs 15, 16, 17, 18, 19, 20, 21, 22
and 23 hereof shall survive the termination or expiration of this Agreement.
24. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by certified registered
mail, return receipt requested, with postage prepaid to their current address or
to such other address as they request in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first written above.
ODWALLA, INC.
/s/ XXXXX X. XXXXXXXX
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By: Xxxxx X. Xxxxxxxx
As its: SR VP, CFO
/s/ D. XXXXXXX X. XXXXXXXXXX
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D. Xxxxxxx X. Xxxxxxxxxx
