Consulting and Confidentiality Agreement September 1, 2006
Exhibit 10.1
Consulting and Confidentiality Agreement
September 1, 2006
This Consulting and Confidentiality Agreement (the “Agreement”) between Columbia Sportswear
Company ( the “Company”) and Xxxxxx Xxxxx (“Consultant”) is entered into as of the September 1,
2006. In consideration of the mutual promises of the parties, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. Form of Consideration. Consultant acknowledges that in addition to cash compensation
under this Agreement (a) during the course of his engagement with the Company, Consultant has and
will continue to have access to confidential information of the Company not readily available to
the public, and (b) Consultant has and will continue to be engaged in a position of trust and
confidence.
2.1 Term. Consultant’s regular employment with the Company has ended. The Company
hereby engages Consultant as a temporary employee of the Company for the period commencing on the
date of this Agreement and continuing for a period of six months; provided that the obligations
under this Section 2 (including the right to receive compensation under Section 2.4) may be earlier
terminated by the Company if Consultant (a) breaches any material term of this Agreement or (b)
engages in conduct that, in the reasonable judgment of the Company, injures the Company or its
reputation.
2.2 Temporary Employment Relationship. Consultant shall act at all times as a
temporary employee and temporary agent of the Company, and as such, during this Agreement may not
represent, act on behalf of, or assist any other company or seek other employment or advising
opportunities because it would (a) interfere with Consultant’s ability to provide the Services
contemplated by this Agreement, and (b) would violate the confidentiality terms of this Agreement.
2.3 Services. During the term of this Agreement, Consultant will use his expertise to
provide consulting services to the Company (“Services”) from time to time to as specified by the
President and Chief Executive Officer of the Company. Consultant shall not be required to provide
more than 80 hours of Services during a bi-weekly pay period under this Agreement.
2.4 Compensation; Expenses. As consideration for the Services, Consultant will
receive the following compensation:
(a) Weekly compensation of $7571.19 for the term of this Agreement, less proper withholding.
(b) Family health insurance coverage if Consultant elects COBRA with premiums paid by the
Company during this Agreement.
(c) In addition, the Company shall reimburse Consultant for all out-of-pocket expenses
incurred in connection with any Services Consultant provides under this Agreement, provided that
such expenses are pre-approved by the Company.
3. Confidential Information. As used in this Agreement, the term “Confidential
Information” means: (a) proprietary information of the Company such as any information which
constitutes, represents, evidences or records a scientific, technical, marketing, production or
management information, design, process, procedure, formula, invention or improvement; (b)
information designated by the Company as confidential or which Consultant knows or should know is
confidential; and (c) trade secrets of any kind. Consultant acknowledges that all Confidential
Information is a valuable asset of the Company and shall continue to be the exclusive property of
the Company whether or not prepared in whole or in part by Consultant and whether or not disclosed
to Consultant or entrusted to his custody in connection with his engagement by the Company.
4. Nondisclosure and Nonuse. Unless authorized or instructed in writing by the
Company, or required by legally constituted authority, Consultant will not, except as required in
the course of the Company’s business, during or after his engagement, disclose to others or use any
Confidential Information, unless and until, and then only to the extent that, such items become
available to the public, other than by Consultant’s act or failure to act. In addition, Consultant
agrees to use his best efforts to prevent accidental or negligent loss or release to any
unauthorized person of the Confidential Information. Consultant will deliver immediately to the
Company upon its request all Confidential Information and retain no excerpts, notes, photographs,
reproductions, or copies of any Confidential Information.
5. Exclusive Duty.
5.1 Consultant agrees that during the term of this Agreement, Consultant will work only for
the Company and thereafter, through December 31, 2007, Consultant agrees he will not individually,
nor will he, serve as or become a director, officer, partner, limited partner, employee, agent,
representative, stockholder, creditor, or Consultant of or to, or serve in any other capacity with
any business which shall in any manner, directly or indirectly:
a. Engage or prepare to engage in any business which competes with the Company anywhere;
b. Induce, or attempt to induce, any person who is an employee of the Company during the term
of this covenant to leave the employ of the Company; or
c. Solicit, divert, or accept orders for goods or services that are substantially competitive
with the goods or services sold by the Company from any customer of the Company.
Notwithstanding the foregoing, Consultant shall not be in breach of this covenant if Consultant
owns less than one percent of the outstanding securities of any entity whose shares are publicly
traded, or if Consultant is owed money by any entity solely for past salary, wages or expenses.
5.2 Consultant acknowledges and agrees to the time, scope, geographic area, and other
provisions of this Section 5 as reasonable under the circumstances. Consultant further agrees that
if, at any time, despite the express agreement of the parties hereto, a court of competent
jurisdiction holds that any portion of this Section 5 is unenforceable for any reason, the maximum
restrictions of time, scope, or geographic area reasonable under the circumstances, as determined
by such court, will be substituted for any such restrictions held unenforceable.
6. Work Made for Hire. Consultant agrees that all creative work prepared or
originated by Consultant for the Company or done within the scope of Consultant’s engagement by the
Company that may be subject to protection under federal copyright law constitutes “work made for
hire,” all rights to which are owned by the Company; and in any event, Consultant assigns to the
Company all right, title, and interest, whether by way of copyright, trade secret, or otherwise, in
all such work, whether or not subject to protection by copyright laws.
7. Cooperation. Consultant agrees, during and after this Agreement, not to disparage
or make false or adverse statements about the Company or its agents in their individual or
representative capacities and to assist with litigation or other legal disputes to the extent
Consultant has relevant information.
8. Payment upon Separation. At the termination of the six-month consulting term set
forth in this Agreement, provided that Consultant has at all times been in compliance with the
terms of this Agreement and performed satisfactorily, the Company shall offer Consultant a
severance agreement providing the weekly compensation amount through August 31, 2008 contingent
upon Consultant signing a release of claims. The provisions of this Agreement in Section 5
(exclusive duty) shall continue until December 31, 2007. Other provisions of this Agreement also
shall survive the termination of this Agreement, including but not limited to Sections 3 and 4
(protection of confidential information, Section 5 (exclusive duty) and Section 7 (nondisparagement
and assistance with disputes).
9. Remedies. Consultant acknowledges that breach of this Agreement by Consultant will
cause irreparable harm to the Company and agrees to the entry of a temporary restraining order and
permanent injunction by any court of competent jurisdiction to prevent breach or further breach of
this Agreement, in addition to any other remedy available to the Company at law or in equity.
10. Severability of Provisions. The provisions hereof are severable, and if any
provision is held invalid or unenforceable, it shall be enforced to the maximum extent permissible,
and the remaining provisions shall continue in full force and effect.
11. Oregon Law to be Applied. The interpretation of and performance under this
Agreement shall be governed by the laws of the State of Oregon, exclusive of conflicts of law
rules.
/s/ Xxxxxx Xxxxx
|
Dated: September 1, 2006 | |
Xxxxxx Xxxxx |
||
/s/ Xxxxx Xxxxxxx |
||
Xxxxx Xxxxxxx, Vice President and General Counsel |
