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EXHIBIT 10.1
CONSULTING AGREEMENT
This Agreement is entered into on December 14, 2000, by and between Xxxxxxx
X. Xxxxx ("Xxxxx") and Odwalla, Inc., a California corporation ("Odwalla")
(collectively, the "Parties").
1. Services. Xxxxx agrees to provide Odwalla with consulting services with
respect to brand strategy at such times and in such manner as the parties may
mutually agree from time to time. The Parties further agree that Xxxxx shall not
be in default or breach of the terms hereof if the Parties are unable to agree
as to the terms and conditions of Xxxxx'x involvement or participation in any
consulting project. For this purpose, Xxxxx shall report to D. Xxxxxxx X.
Xxxxxxxxxx or his successor.
2. Compensation. Odwalla agrees to pay Xxxxx Five Thousand Dollars ($5,000)
per month throughout the term of this Agreement (namely, until December 31,
2003). Upon receipt of an invoice from Xxxxx, payments shall be due and payable
on the first day of every month beginning on January 1, 2001.
3. Expenses. Odwalla agrees to reimburse Xxxxx for all expenses reasonably
incurred in the performance of the Services upon production of supporting
receipts and documentation, within ten (10) business days of the receipt of such
receipts and documentation.
4. Term of Agreement. This Agreement will become effective on December 14,
2000 and will terminate on December 31, 2003 ("Termination Date"). Upon
termination of this Agreement, Xxxxx shall be entitled to reimbursement for
reasonable business expenses incurred prior to the Termination Date that have
not been previously reimbursed in accordance with the terms hereof. Thereafter,
Odwalla shall owe Xxxxx no further amounts or obligations.
5. Notices. Any notice under this Agreement must be in writing and shall be
effective upon delivery by hand or five (5) business days after deposit in the
United States mail, postage prepaid, certified or registered, and addressed to
Odwalla or to Xxxxx at the corresponding address below. Xxxxx shall be obligated
to notify Odwalla in writing of any change in Xxxxx'x address. Notice of change
of address shall be effective only when done in accordance with this Paragraph.
Odwalla's Notice Address Xxxxx'x Notice Address
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Odwalla, Inc. Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx Xxx, XX 00000
Fax Number: 000-000-0000
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6. Relationship of the Parties
x. Xxxxx enters into this agreement as, and shall continue to be, an
independent contractor. In no circumstance shall Xxxxx look to Odwalla as
Xxxxx'x employer, partner, agent, or principal. Xxxxx shall not be entitled to
any benefits accorded to Odwalla's employees, including workers' compensation,
disability insurance, retirement plans, or vacation or sick pay as a result of
this Agreement. Xxxxx'x exclusion from benefit programs maintained by Odwalla is
a material component of the terms of compensation negotiated by the Parties, and
is not premised on Xxxxx'x status as a nonemployee with respect to Odwalla. To
the extent that Xxxxx may become eligible for any benefit programs maintained by
Odwalla (regardless of the timing of or reason for eligibility), Xxxxx hereby
waives Xxxxx'x right to participate in the programs, except as to those benefits
arising under the Separation Agreement and Release of even or near even date
between the Parties. Xxxxx'x waiver is not conditioned on any representation or
assumption concerning Xxxxx'x status under the common law test. Xxxxx also
agrees that, consistent with Xxxxx'x independent contractor status, Xxxxx will
not apply for any government-sponsored benefits that are intended to apply to
employees, including, but not limited to, unemployment benefits.
x. Xxxxx shall be responsible for providing, at Xxxxx'x expense and in
Xxxxx'x name, disability, workers' compensation, or other insurance as well as
licenses and permits usual or necessary for performing the Services. Xxxxx shall
pay, when and as due, any and all taxes incurred as a result of Xxxxx'x
compensation, including personal income taxes and his share of OASDI and
Medicare taxes, estimated taxes and payroll taxes, and shall provide Odwalla
with proof of payment on demand.
x. Xxxxx and Odwalla shall provide to each other upon request any
information reasonably necessary to determine their obligations under this
Agreement, to fulfill the purposes of the Services, or to maintain accurate
records.
7. Place of Work. Xxxxx understands that the Services must coordinate with
Odwalla's established protocols and security requirements and, subject to the
provisions of Sections 1 and 3, may from time to time need to be performed at
Odwalla's premises.
8. Xxxxx'x Representations and Indemnities. Xxxxx represents that Xxxxx
shall be solely responsible for the professional performance of the Services and
shall receive no assistance, direction, or control from Odwalla. Xxxxx shall
have sole discretion and control of Xxxxx'x services and the manner in which
they are to be performed.
9. Ownership of Intellectual Property
x. Xxxxx agrees that all designs, plans, reports, specifications, drawings,
schematics, prototypes, models, inventions, and all other information and items,
if any, made during the course of this Agreement and arising from the Services
("New
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Developments") shall be and are assigned to Odwalla as its sole and exclusive
property. On Odwalla's request, Xxxxx agrees to assist Odwalla, at Odwalla's
expense, to obtain patents or copyrights for such New Developments, including
the disclosure of all pertinent information and data, the execution of all
applications, specifications, oaths, and assignments, and all other instruments
and papers that Odwalla shall deem necessary to apply for and to assign or
convey to Odwalla, its successors, and assigns or nominees, the sole and
exclusive right, title, and interest in such New Developments.
x. Xxxxx will warrant that Xxxxx has good title to any New Developments and
the right to assign New Developments to Odwalla free of any proprietary rights
of any other party or any other encumbrance whatsoever. Xxxxx further agrees not
to disclose to Odwalla, or bring onto Odwalla's premises, or induce Odwalla to
use any confidential information that belongs to anyone other than Odwalla or
Xxxxx. Xxxxx agrees to indemnify Odwalla from any and all loss or liability
incurred by reason of the alleged breach by Xxxxx of any confidentiality or
services agreement with anyone other than Odwalla, provided that the foregoing
shall not apply to Xxxxx'x wife, Xxxx Xxxxxx, contingent upon Xxxx Xxxxxx
executing a proprietary information agreement with Odwalla.
c. The representations and warranties contained herein and Xxxxx'x
obligations under Paragraphs 10 and 11 of this Agreement shall survive
termination of the Agreement.
10. Proprietary Information
a. "Proprietary Information" means all information pertaining in any manner
to the business of Odwalla, unless (i) the information is or becomes publicly
known through lawful means; (ii) the information was part of Xxxxx'x general
knowledge prior to Xxxxx'x relationship with Odwalla; or (iii) the information
is disclosed to Xxxxx without restriction by a third party who rightfully
possesses the information and did not learn of it from the Odwalla. This
definition includes, but is not limited to, (A) techniques, development tools,
processes, formulas and improvements; (B) information about costs, profits,
markets, sales, customers, and bids; (C) plans for business, marketing, future
development and new product concepts; and (D) information on Odwalla's
employees, agents, or divisions. The written, printed, graphic, or
electronically recorded materials furnished by Odwalla for use by Xxxxx are
Proprietary Information and are the property of Odwalla.
x. Xxxxx shall maintain in confidence and shall not, directly or
indirectly, disclose or use, either during or after the term of this Agreement,
any Proprietary Information, confidential information, or know-how belonging to
Odwalla, whether or not it is in written or permanent form, except to the extent
necessary to perform the Services. On termination of Xxxxx'x services to
Odwalla, or at the request of Odwalla
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before termination, Xxxxx shall deliver to Odwalla all material in Xxxxx'x
possession, custody or control relating to Odwalla's business, including
Proprietary Information. The obligations on Proprietary Information extend to
information belonging to customers and suppliers of Odwalla about whom Xxxxx may
have gained knowledge as a result of performing the Services.
x. Xxxxx shall not, during the term of this Agreement and for a period of
one year immediately after the termination of this Agreement, or any extension
of it, for any reason, either directly or indirectly solicit or take away or
attempt to solicit or take away any of Odwalla's employees or contractors either
for Xxxxx or for any other person or entity.
d. Nothing in this Paragraph 11 is intended to limit any remedy of the
Odwalla under the California Uniform Trade Secrets Act (California Civil Code
Section 3426), or otherwise available under law.
11. Arbitration
All disputes between Xxxxx and Odwalla relating in any way to this
Agreement or the Services to be performed under this Agreement (including, but
not limited to, claims for breach of contract, tort, discrimination, harassment,
and any violation of federal or state law) ("Arbitrable Claims") shall be
resolved by arbitration before a neutral arbitrator.
The arbitrator shall be selected and the arbitration hearing conducted
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association and shall take place in San Francisco, California, unless otherwise
agreed by the Parties. Arbitration shall be final and binding upon the Parties
and shall be the exclusive remedy for all claims covered by this arbitration
provision. Either party may bring an action in court to compel arbitration under
this Agreement, to enforce an arbitration award or to obtain temporary
injunctive relief pending a judgment based on the arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit or administrative action
in any way related to any Arbitrable Claim.
The Federal Arbitration Act shall govern the interpretation and enforcement
of this Section on Arbitration, except if any court finds that the Federal
Arbitration Act does not apply, the California Arbitration Act shall govern the
interpretation and enforcement of this Section. If any court or arbitrator finds
that any term makes this Arbitration Section unenforceable for any reason, the
court or arbitrator shall have the power to modify such term (or if necessary
delete such term) to the minimum extent necessary to make this Arbitration
Section enforceable to the fullest extent permitted by law.
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN
REGARD TO ARBITRABLE CLAIMS, INCLUDING
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WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE,
VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.
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12. Miscellaneous Provisions
a. Assignment; Successors and Assigns. Xxxxx agrees that Xxxxx will not
assign, delegate, transfer, or otherwise dispose of the Services without the
written consent of Odwalla except that upon his death, this Agreement shall not
terminate and his duties hereunder shall be assigned to Xxxx Xxxxxx and, in such
event, Xxxx Xxxxxx shall be substituted for Xxxxx hereunder and all payments due
hereunder shall be made to her. Nothing in this Agreement shall prevent the
consolidation of Odwalla with, or its merger into, any other corporation, or the
sale by Odwalla of all or substantially all of its properties or assets, or the
assignment by Odwalla of this Agreement and the performance of its obligations
hereunder to any successor in interest to all or substantially all of the assets
of Odwalla so long as, in each such case, the survivor of such consolidation or
merger, or transferee or assignee of substantially all of the assets of Odwalla
assumes the obligations of Odwalla hereunder. 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 enumerated
above.
b. Entire Agreement. The terms of this Agreement are intended by the
Parties to be the final expression of their agreement with respect to subject
matter of this Agreement and may not be contradicted by evidence of any prior or
contemporaneous agreement, except as expressly set forth in this Agreement. The
Parties further intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial, administrative, or other legal proceeding
involving this Agreement.
c. Amendments; Waivers. This Agreement shall not be varied, altered,
modified, changed or in any way amended except by an instrument in writing
executed by Xxxxx and a duly authorized representative of Odwalla.
d. Severability; Enforcement. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by an
arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or
void, the remainder of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full force and effect, and
such provision shall be enforced to fullest extent consistent with applicable
law.
e. Governing Law. Except as otherwise provided, the validity,
interpretation, enforceability, and performance of this Agreement shall be
governed by and construed in accordance with the law of the State of California,
without giving effect to its law regarding the conflict of laws.
f. 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
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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 this Agreement.
13. Acknowledgment. The Parties acknowledge that (i) they have each had the
opportunity to consult with independent counsel of their own choice concerning
this Agreement and have done so to the extent they deem necessary, and (ii) they
each have read and understand the Agreement, are fully aware of its legal
effect, and have entered into it voluntarily and freely based on their own
judgment and not on any promises or representations other than those contained
in the Agreement. This Agreement has been duly authorized by all necessary
corporate action by Odwalla and is a valid and binding obligation of Odwalla,
enforceable against it in accordance with its terms.
The Parties have duly executed this Agreement as of the date first written
above.
ODWALLA, INC.
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By: D. Xxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxx
Its: Chief Executive Officer
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