Exhibit 10.3
EMPLOYMENT AGREEMENT
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This agreement ("Agreement") is made as of April 1, 2000 by and among Blue Rhino
Corporation, a Delaware corporation ("Blue Rhino"), and Xxxxxx Xxxxxxx (the
"Employee").
RECITALS
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WHEREAS, Blue Rhino is engaged in the business of manufacturing,
distributing, imparting and otherwise dealing in fireplace furnishings and
related products;
WHEREAS, Blue Rhino desires to employ Employee and Employee is willing to
be employed by Blue Rhino, on the terms and subject to the conditions set forth
in this Agreement;
WHEREAS, Employee recognizes that such employment constitutes a
confidential relationship wherein Employee will become familiar with and aware
of information as to the specific manner of doing business, all of which
information is secret and proprietary and constitutes valuable goodwill Blue
Rhino;
WHEREAS, Employee recognizes that the success of Blue Rhino's Business (as
defined in Section 9) is dependent upon the maintenance of a number of
proprietary trade secrets, including the identity of customers and vendors, the
confidential information regarding and analysis of such candidates and the
financial data of Blue Rhino, and that the protection of these proprietary trade
secrets is of critical importance to Blue Rhino; and
WHEREAS, Employee recognizes that Blue Rhino will sustain great loss and
damage if he should violate the provisions of this Agreement. Further, monetary
damages for such losses would be extremely difficult to measure and would
therefore be likely to be inadequate for any violation of this Agreement by
Employee; and
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein and other good and valuable consideration, the parties hereby
agree as follows:
TERMS
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1. Employment: Blue Rhino hereby employs Employee in the capacity
described on Exhibit A attached hereto, and Employee hereby accepts such
employment with Blue Rhino. Employee will perform the duties associated with
such position and will perform such others duties consistent with his position
as may be assigned to him from time to time by the board of directors, president
or chief executive officer of Blue Rhino. Employee's primary duties shall be
described an Exhibit A attached hereto. During his employment, Employee shall
devote his full time and best efforts to promote and further the business and
services of Blue Rhino. Employee shall faithfully adhere to, execute, and
fulfill all policies established by Blue Rhino's board of directors. Employee
shall not, during his employment hereunder, be engaged in any business or
perform any services in any capacity other than for Blue Rhino, whether or not
they interfere with his duties to Blue Rhino, without the prior approval of the
board of directors of Blue Rhino, except that no such approval shall be required
with respect to volunteer activities for organizations with charitable purposes;
provided that such activities do not interfere with his duties for Blue Rhino
and are not conducted during business hours. Without limiting the generality of
any other provisions hereunder, under no circumstances shall Employee accept any
form of remuneration from any business owner or broker with respect to any
matter related to the Business of Blue Rhino without prior written approval.
Notwithstanding the foregoing, Blue Rhino consents to Employee's working, in a
self-employed capacity, in a retail ceramic/art studio, so long as such work
does not interfere with the performance of Employee's duties at Blue Rhino.
2. Term. The term of this Agreement shall begin April 1, 2000, and shall
expire March 31, 2003, unless terminated as herein provided (the "Term").
3. Compensation. During the Term, Blue Rhino shall compensate Employee
as follows:
a. Salary. For his services during the Term, Blue Rhino shall pay to
Employee a base salary of $187,000 per year ("Base Salary"), payable in
accordance with Blue Rhino's standard payroll practices, but no less frequently
than in monthly installments. The payment of salary and any bonuses paid
hereunder shall be subject to all Federal, State, and local withholding taxes,
social security tax deduction, and other general obligations. Employee may be
entitled to receive additional compensation from Blue Rhino in such form and
only to the extent explicitly set forth herein, subject to limitations set forth
herein. The Base Salary shall increase each year during the Term at January 1st
in the same proportion as the annual increase in the "Consumer Price Index" when
measured at the aforesaid January 1st of each year as compared to the
immediately preceding January 1st. The "Consumer Price Index" means the consumer
price index published by the U.S. Bureau of Labor Statistics, all Retail
Products, Chicago/Northwestern Indiana metropolitan region.
b. Incentive Bonus. Employee may receive a bonus for each fiscal
year, as determined in the sole discretion of the board of directors on
recommendation of the President, based on Employee's performance, Blue Rhino's
performance, Blue Rhino's profitability, industry performance or any other
factors the board of directors chooses. The factors for achieving Employee's
bonus shall be, determined at the beginning of the fiscal year of the Term, and
shall be attached as Exhibit B to this Agreement and communicated to Employee at
the beginning of the fiscal year of the Term. There is no guarantee that
Employee shall receive an Incentive Bonus each year. Except as otherwise
specifically provided herein. Employee must be employed by Blue Rhino at the
time that the bonus is to be paid to be eligible to receive such bonus. Such
bonus will be paid after the end of the year to which it is attributable, after
the determination of bonus factors is made.
c. Other Compensation. Employee shall be entitled to participate, on
the same terms as other nonunion, executive employees of Blue Rhino, in any
medical, dental or other health plan, 401k plan, stock option plan, employee
stock purchase plan and life insurance plan that Blue Rhino may adopt or
maintain for such employees, any of which plans may be changed, terminated or
eliminated by Blue Rhino at any time in its sole discretion.
d. Reimbursement of Expenses. Blue Rhino shall reimburse Employee
for properly documented expenses that are incurred by Employee on behalf of Blue
Rhino in accordance with corporate policies in effect from time to time.
4. Vacation, Holidays and Sick Leave. Employee shall be entitled to
fifteen (15) paid vacation days annually during the Term, to be taken at such
time or times and in such number of consecutive days as Employee and Blue Rhino
shall mutually agree and in accordance with the regular policy relating to
vacation days for executive employees of Blue Rhino. Employee shall be entitled
to such paid holidays and sick leave policy regularly recognized by Blue Rhino
for executive personnel.
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5. Termination by Blue Rhino.
a. Termination for Cause. Blue Rhino may terminate this Agreement
at any time for Cause, in which case Employee shall be entitled to receive his
Base Salary accrued and unpaid through the date of such termination in full
satisfaction of Blue Rhino's obligations to Employee under this Agreement. Any
of the following shall constitute "Cause"
i. Any material breach by Employee of any of the terms of this
Agreement where such breach is not cured within five (5)
days after written notice of such breach is delivered to
Employee;
ii. Intoxication with alcohol or drugs while on the premises of
Blue Rhino or of any customer or potential customer to the
extent that in the reasonable judgment of management,
Employee is abusive or his ability to perform his duties and
responsibilities under this Agreement is impaired;
iii. Conviction of a felony or any misdemeanor involving
dishonesty, theft, the failure to tell the truth, other
unethical behavior, racial prejudice, drugs, alcohol, sexual
misconduct or any other crime;
iv. Intentional misappropriation of property belonging to Blue
Rhino;
v. Illegal business practices in connection with Blue Rhino
that could have an adverse effect on Blue Rhino or its
business or reputation;
vi. Excessive absence of Employee from his employment during
usual business hours for reasons other than vacation,
disability or sickness after written notice thereof is
delivered to Employee describing the nature of such excess
absences and affording Employee one opportunity to avoid
excess absences; or
vii. Willful failure of Employee to obey directions of the board
of directors of Blue Rhino, the president or chief
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executive officer of Blue Rhino, consistent with his duties
as described in paragraph 1 hereof, provided Blue Rhino
first gives written notice to Employee of such failure, and
Employee, does not cure such failure within five (5) days of
the delivery of such notice.
b. Termination Without Cause. Blue Rhino may terminate the
employment of Employee, and this Agreement without Cause at any time, in which
event Blue Rhino shall pay to Employee, in full satisfaction of Blue Rhino's
obligations to Employee under this Agreement, the Base Salary accrued but unpaid
through the date of the termination of his employment and shall continue to pay
the Base Salary for one (1) year following the date of Employee's termination.
Such amounts shall be earned and paid over the applicable period in accordance
with Blue Rhino's regular payroll practices.
6. Termination of Account of Death or Disability. If Employee dies
during the Term, this Agreement shall terminate and Blue Rhino shall pay to the
estate of Employee, the Base Salary accrued but unpaid through the date of his
death. Blue Rhino may elect to terminate the employment of Employee for
"disability" if Employee is no longer able to perform the duties of his position
due to illness, accident or other physical or mental condition and such
disability is expected to continue, with or without interruption, for a period
equal to the later of ninety (90) days and Employee's accumulated sick leave
("Disability Period"). Blue Rhino may engage a licensed physician of its
choosing to examine Employee to determine if Employee is suffering from a
disability and to determine the date of onset of such disability. Blue Rhino's
physician's determination shall be final.
7. a. Confidentiality. Except in the furtherance of the business of
Blue Rhino, during and at all times after Employee's employment:
i. Employee shall not disclose to any person or entity, without
Blue Rhino's prior written consent, any Confidential or
Proprietary information (as defined below), whether prepared
by him or others.
ii. Employee shall not directly or indirectly use any such
Confidential or Proprietary Information other than as
directed by Blue Rhino in writing.
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iii. Employee shall not remove Confidential or Proprietary
information from the premises of Blue Rhino without the
prior written consent of Blue Rhino.
Upon termination of his employment for whatever reasons with or without Cause,
Employee will promptly deliver to Blue Rhino all originals and copies (whether
in note, memo or other document form or on video, audio or computer tapes or
discs or otherwise) of Confidential or Proprietary Information in his
possession, custody or control, whether prepared by him or others.
b. "Confidential or Proprietary Information" includes, but is not
limited to:
i. Business, pricing and management methods;
ii. Finances, strategies, systems, research, surveys, plans,
reports, recommendations and conclusions, financial
statements, tax returns, budgets, and compilations of any
kind of Blue Rhino's finances and operations;
iii. Names of, arrangements with, or other information relating
to, Blue Rhino's customers, equipment suppliers,
manufacturers, financiers, owners or operators,
representatives and other persons who have business
relationships with Blue Rhino or who are prospects for
business relationships with Blue Rhino;
iv. Technical information, work products and know-how;
v. Cost, operating, and other management information systems,
and other software and programming; and
(vii) Plans for new products and new product development.
c. "Confidential or Proprietary Information" does not include:
i. Information in the public domain; and
ii. Information known to Employee prior to his engagement as an
Employee of Blue Rhino, learned
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from sources which had no obligation to keep such
information confidential.
8. Confidentiality After Termination of Employment. The confidentiality
provisions of this Agreement shall remain in full force and effect after the
termination of Employee 's employment for a period of one (1) year.
9. Non-Compete and Non-Solicitation Agreement.
a. Employee recognizes the Confidential or Proprietary Information of
Blue Rhino is a special and unique asset of Blue Rhino and needs to be protected
from improper disclosure. In consideration of the disclosure of the Confidential
or Proprietary Information to Employee to allow Employee to perform his duties
under this Agreement, Employee agrees and covenants that during the Term of this
Agreement and for a period of one (1) year following the termination of this
Agreement, whether such termination is voluntary or involuntary, Employee will
not directly or indirectly engage in any business competitive with Employer,
within the United States of America. For purposes of this Agreement, "Business"
means:
i. Engaging in the business of manufacturing, distributing,
imparting or otherwise dealing in fireplace accessories and
garden and patio furnishings, barbeque grills and related
products, reflective of the business acquired by Blue Rhino
from Uniflame, Inc. at the date of execution of this
Agreement; or
ii. Engaging in the business of manufacturing, distributing,
imparting or otherwise dealing in propane-related products.
b. The term "directly or indirectly engaging in" means:
i. Acting as an owner, partner, or agent;
ii. Becoming an employee or independent contractor of any third
party that is engaged in the Business;
iii. Becoming interested directly or indirectly in the Business;
or
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iv. Soliciting any customer, employee or business partner of
Blue Rhino for the benefit of a third party that is engaged
in the Business.
c. Employee agrees and covenants that during such Employee's
employment by Blue Rhino and for a period of one (1) year following the
termination of this Agreement, whether such termination is voluntary or
involuntary, Employee will not directly or indirectly, or by action in concert
with others, induce or influence, any person who is engaged as an employee or
consultant of Blue Rhino, or any affiliate of Blue Rhino, to terminate his or
her employment or consultant relationship with Blue Rhino, or such affiliate of
Blue Rhino; or either directly or indirectly, or by action in concert with
others, call on, solicit or take away any of the customers of Blue Rhino, or any
affiliate of Blue Rhino, either for the benefit of Employee or any other person.
d. Employee agrees that this non-compete and non-solicitation
provision is a restriction necessary to protect Blue Rhino's confidential
customer lists and other trade secrets and that such restriction will not
unreasonably adversely affect the Employee's livelihood.
10. Inventions and Improvements. Employee agrees that Blue Rhino will own
all right title and interest in and to any and all intellectual and industrial
property developed or created by Employee, and related in any way to Blue
Rhino's business or products, during Employee's employment by Blue Rhino
including, without limitation, improvements to Blue Rhino's products, derivative
works of Blue Rhino's products, and trade secrets or know-how derived from Blue
Rhino's products or business.
11. Damages. The parties acknowledge that monetary damages will be
inadequate and Blue Rhino will be irreparably damaged if the provisions of
Sections 7, 8, 9, 10 and 13 of this Agreement are not specifically enforced.
Blue Rhino shall be entitled among other remedies, (a) without any bond or other
security being required, to an injunction restraining any violation of this
Agreement by Employee and by any person or entity to whom Employee provides or
proposes to provide any services in violation of this Agreement, and (b) to
require Employee to hold in a constructive trust, account for and pay over to
Blue Rhino all compensation and other benefits which Employee shall derive as a
result of any action or omission which is a violation of any provision of this
Agreement. Employee shall indemnify and hold Blue Rhino harmless with respect to
any costs, fees and expenses incurred by Blue Rhino in order to enforce the
terms of Sections 7, 8, 9, 10 and 13 of this Agreement.
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12. Enforceability. If any provision contained in this Agreement is
determined to be void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and effect as if
the provision which was determined to be void, illegal, or unenforceable, had
not been contained herein. The courts or other parties enforcing this Agreement
shall be entitled to modify the duration and scope of any restriction contained
herein to the extent necessary to render such restriction enforceable, and such
restriction as so modified shall be enforced.
13. Return of Property. All products, records, designs, plans, manuals,
memoranda, lists and other property delivered to Employee by or on behalf of any
of Blue Rhino or by its customers, including, but not limited to, customers
obtained for it by Employee, and all records compiled by Employee which pertain
to the business of Blue Rhino, or any of its customers, whether or not
confidential, shall be and remain the property of Blue Rhino and be subject at
all times to the discretion and control of Blue Rhino. Likewise, all
correspondence with customers or representatives, reports, records, charts,
advertising materials, and any data collected by Employee, or by or on behalf of
Blue Rhino or its representatives, whether or not confidential, shall be
delivered promptly to Blue Rhino without request by it upon termination of
Employee's employment.
14. Cooperation in Proceedings. During and after the termination of
Employee's employment, Employee shall cooperate fully and at reasonable times
with Blue Rhino in all litigation and regulatory proceedings with respect to
which Blue Rhino seeks Employee's assistance and as to which Employee has any
knowledge or involvement. Without limiting the generality of the foregoing,
Employee shall be available to testify at such litigation and other proceedings,
and will cooperate with counsel to Blue Rhino in preparing materials and
offering advice in such litigation and other proceedings. To the extent Employee
is no longer employed by Blue Rhino, should Employee avail himself in accordance
with this Section 14, Blue Rhino shall compensate Employee for any wages lost by
Employee in connection with his current employment plus any travel and
incidental expenses incurred by Employee.
15. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and will be deemed duly given: (a)
when personally delivered, (b) the next business day when deposited with Federal
Express or other nationally recognized overnight courier service delivery
prepaid, or (c) five (5) business days after being sent by registered mail,
return receipt requested, postage prepaid, and (d) addressed to the intended
recipient as set forth below:
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If to Employee: Xxxxxx Xxxxxxx
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If to Blue Rhino: Blue Rhino Corporation
000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx-Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Either party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other party
written notice in the manner herein set forth.
16. Other Agreements. Employee represents that he has furnished to Blue
Rhino copies of all agreements that restrict or limit or could restrict or limit
his services for Blue Rhino at any time during the term. However, nothing in
this Agreement shall be construed to render an opinion as to the interpretation
or validity of any agreements with prior employers purporting to restrict or
limit Employee's services for Blue Rhino.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without giving effect to any
choice or conflict of law provision or rule, whether of the State of Illinois or
any other jurisdiction, that would cause the application of the laws of any
jurisdiction other than the State of Illinois. In the event of any dispute or
claim relating to arising out of Employee's employment relationship with Blue
Rhino, or the termination of Employee's employment relationship with Blue Rhino,
Employee and Blue Rhino agree that (i) all such disputes shall be fully and
finally resolved by binding arbitration conducted by the American Arbitration
Association in Xxxx County, Illinois, and (ii) each waives his or its rights to
have such dispute tried by a court or jury. RIGHT TO TRIAL BY JURY IS WAIVED.
However, Employee and Blue Rhino agree that this arbitration provision shall not
apply to any disputes or claims relating to or arising out of Sections 7, 8, 9,
10 and 13 of this Agreement. With respect to each such dispute, each of the
parties submits to the jurisdiction of any state court sitting in Chicago,
Illinois or the United States District Court for the Northern District of
Illinois.
18. Advice of Counsel. Employee been advised by his own independent
counsel concerning this Agreement prior to executing this Agreement.
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19. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective heirs,
legal representatives, successors and permitted assigns. Employee may not assign
either this Agreement or any of Employee's rights, interests or obligations
hereunder. Blue Rhino may assign any or all of its rights and interests
hereunder to any person or entity that acquires the business of Blue Rhino or to
any entity with which Blue Rhino merges or consolidates.
20. Counterparts. This Agreement may be executed in one or more
counterparts. each of which shall be deemed an original but all of which
together will constitute one and the same agreement.
21. Headings. The section headings contained in this Agreement are for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
22. Waiver. The waiver of a breach of any provision of this Agreement
shall not operate or be construed to be a waiver of any other provision or of a
subsequent or prior breach of this Agreement.
23. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior or
contemporaneous negotiations, correspondence, understandings, and agreements
between the parties regarding the subject matter of this Agreement. This
Agreement may not be amended or modified or any provision waived except in a
writing signed by both parties and supported by new consideration.
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Executed as of the date first set forth above.
BLUE RHINO CORPORATION EMPLOYEE
By:
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Its: Xxxxxx Xxxxxxx
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