Exhibit 10.11
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE (the "Agreement") dated
as of November 8, 2006, is between UTi, Services, Inc. ("Company") and ▇▇▇▇▇
▇▇▇▇▇▇▇ ("Employee").
WHEREAS, Company and Employee are parties to an Employment Agreement
dated as of February 21, 2006 (the "Employment Agreement"); and
WHEREAS, in consideration of the promises made in this Agreement,
Company and Employee wish to terminate the Employment Agreement effective as of
the date hereof.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Employee hereby submits her voluntary resignation from her position as
Senior Vice President and Chief Information Officer of UTi Worldwide Inc. and
all other positions with the Company and its affiliates, effective as of the
close of business on the date hereof. Employee represents that she is resigning
voluntarily and is signing this Agreement voluntarily and with a full
understanding of and agreement with its terms.
2. In reliance on such voluntary resignation and representations and
releases in this Agreement, the Company will provide Employee with the following
pay and benefits:
a. Beginning November 9, 2006 and ending on July 31, 2007 (the
"Consulting Period"), Company shall hire Employee as an
independent consultant pursuant to the terms of a separate
Consulting Agreement, the form of which is attached hereto as
Exhibit A.
b. During the Consulting Period, all options and Restricted Stock
Units held by Employee shall continue to vest according to their
terms as though Employee was employed by Company during the
Consulting Period.
c. If Employee exercises her rights under COBRA in a timely manner,
the Company will pay the premium for such insurance continuation
through the expiration of the Consulting Period; provided that if
Employee shall obtain full-time employment prior to the
expiration of the Consulting Period, Company's obligation to pay
for such COBRA benefits will immediately cease at such time as
Employee obtains medical and dental insurance benefits from such
new employer. Employee hereby agrees to notify Company if she
obtains full-time employment during the Consulting Period.
d. From August 1, 2007 through January 31, 2008, Company shall pay
to Employee $19,583 per month, less legally required deductions,
payable semi-monthly or as otherwise agreed between the parties.
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e. The Company will pay for outplacement services to be provided to
Employee by Eddy & Associates in an amount not to exceed $20,000.
f. The Company will not contest Employee's unemployment claim.
Employee acknowledges and agrees that she is receiving additional pay and
benefits from the Company beyond that provided by normal Company policy or
required by the Employment Agreement, and that she is not entitled to receive,
and will not claim, any right, benefit, or compensation other than what is
expressly set forth in this Agreement, and hereby expressly waives any claim to
any compensation, benefit or payment which is not expressly referenced in this
Agreement.
3. In exchange for the additional pay and benefits provided in Section 2
above, Employee promises:
a. to promptly return to the Company all files, records, credit
cards, keys, equipment, and any other Company property or
documents maintained by her for the Company's use or benefit.
b. to keep this Agreement and its contents in complete confidence
and not to disclose the fact or terms of this Agreement or the
fact or amount of these additional payments to any person,
including any past, present, or prospective employee of the
Company; provided that to the extent the Company is required to
file this Agreement with the Securities and Exchange Commission
in order to comply with applicable law, and so files this
Agreement, the terms of this Section 3(b) shall not apply.
c. not to disparage the Company or its products, services, or
management.
d. to abide by and uphold continuously the terms of Section 8
(Proprietary Information) of the Employment Agreement, including
but not limited to Employee's promises:
(i) not to use or disclose any confidential information, trade
secrets, or financial, personnel, or client information
which she learned while employed by the Company,
(ii) not to solicit or participate in or assist in any way in the
solicitation of any Company employee to cease employment
with the Company or to begin an employment or consulting
relationship with any other employer for a period of one
year.
(iii) not to use any internal Company information to solicit or
participate in or assist in any way in the solicitation of
the customers of the Company to cease or decrease doing
business with the Company or to do business with any
competitor of the Company.
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e. not to apply for re-employment with the Company.
If Employee breaches any of the promises in this Agreement, the Company may stop
any payments or benefits otherwise owing under Section 2 and may seek additional
relief or remedy under Section 8 hereof.
4. With the exception of any claims that lawfully cannot be released, and
in consideration for the foregoing and pursuant to Section 6(d)(iii) of the
Employment Agreement, Employee does hereby, for herself and her heirs,
successors and assigns, release, acquit and forever discharge the Company and
the UTi Group (as defined in the Employment Agreement), and each of their
respective owners, stockholders, officers, directors, managers, employees,
representatives, agents, successors, and assigns (collectively, the "Released
Parties"), of and from any and all claims, actions, charges, complaints, causes
of action, rights, demands, debts, damages, or accountings of whatever nature,
known or unknown, which she or her heirs may have against such persons or
entities based on any actions or events which occurred prior to the effective
date of this Agreement, including but not limited to those related to, or
arising from, Employee's employment with the Company or her termination thereof.
In exchange for material portions of the additional pay and benefits
provided in Section 2 above and in accordance with the Older Workers Benefit
Protection Act, Employee hereby knowingly and voluntarily waives and releases
all rights and claims, known and unknown, arising under the Age Discrimination
In Employment Act of 1967, as amended, which she might otherwise have had
against the Released Parties regarding any act or omission which occurred on or
before the effective date of this Agreement.
5. With the exception of any claims that lawfully cannot be released, it is
further understood and agreed that as a condition of this Agreement, all rights
under Section 1542 of the Civil Code of the State of California are expressly
waived by Employee. Such Section reads as follows:
"A General Release does not extend to claims which a creditor does not
know or suspect to exist in his favor at the time of executing the
Release, which if known by him must have materially affected his
settlement with the debtor."
6. This Agreement and the Consulting Agreement contain all of the terms,
promises, representations, and understandings made between the parties and
supersede any previous representations, understandings, or agreements, except
for any agreement by Employee regarding confidentiality and/or protection of
Company information, property, or trade secrets, which agreement(s) shall
continue in full force and effect. For purposes of clarity, as of the date
hereof, the Employment Agreement is terminated in all respects, except for any
provisions therein which expressly survive the termination thereof.
7. Employee understands that she is waiving legal rights by signing this
Agreement, and has consulted with an attorney and/or other persons to the full
extent Employee wanted to do so before signing this Agreement.
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Employee is hereby advised (a) to consult with an attorney prior to
signing this Agreement and (b) that she has 21 days in which to consider and
accept this Agreement by signing this Agreement, which should then be promptly
returned to the Company's Global General Counsel. In addition, Employee has a
period of 7 days following her signing of this Agreement in which she may revoke
the Agreement. If Employee does not advise the Company (by a writing received by
the Company's Global General Counsel within such 7 day period) of her intent to
revoke the Agreement, the Agreement will become effective and enforceable upon
the expiration of the 7 days.
8. Any dispute regarding the validity or terms of this Agreement or any
aspects of her employment or its termination and any other disputes between
these parties shall be resolved by an arbitrator selected in accordance with the
employment rules of JAMS in Los Angeles County, California as the exclusive
remedy for any such dispute, and in lieu of any court action, which is hereby
waived. The only exception is a claim by either party for injunctive relief
pending arbitration.
9. The Company may withhold from any amounts payable under this Agreement
all such taxes, and may file with appropriate governmental authorities all such
information, returns or other reports with respect to the tax consequences of
any amounts payable under this Agreement, as may, in its reasonable judgment, be
required by law.
10. Employee hereby certifies that (i) Employee has reported on Form 4 all
reportable transactions that occurred during the fiscal year ending January 31,
2007 through the date first written above, and (ii) Employee is not required to
file a Form 5 for the fiscal year ending January 31, 2007.
UTi, Services, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------- ------------------------------------
Date Signed
November 21, 2006
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Exhibit A to SEPARATION AGREEMENT AND GENERAL RELEASE
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into as of this 9th day of
November 2006, by and between UTi, Services, Inc., a California corporation with
a principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Company" or "UTi") and ▇▇▇▇▇ ▇▇▇▇▇▇▇, whose residence is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Consultant").
RECITAL
Simultaneously with the execution hereof, Company and Consultant are entering
into a Separation Agreement and General Release (the "Separation Agreement").
As required by the Separation Agreement, Consultant is hereby engaged by the
Company to provide the services set forth on Exhibit I.
Consultant and the Company intend that the Company obtain, to the fullest extent
permitted by law, total ownership, exclusive rights to and complete control of
all patents, trademarks, copyrights, trade secrets and other similar rights in
and to all Works (as defined below) and all intermediate versions thereof and
Consultant hereby agrees that she will, both during and after the period of this
engagement by the Company, do nothing to adversely affect any rights of the
Company in and to the Works.
NOW THEREFORE, in view of the Recital, which shall be deemed to be part of this
Agreement, and in consideration of the mutual covenants, obligations and
undertakings set forth herein the parties agree as follows:
1. PAYMENT FOR CONSULTANT'S SERVICES: During the term of this Agreement,
Consultant shall be paid a fee of $19,583 per month, payable
semi-monthly or as otherwise agreed in writing.
2. INVENTIONS: Any and all inventions, discoveries, developments,
solutions, programs, methodologies, processes, procedures and
innovations conceived by the Consultant alone or in conjunction with
UTi employees or consultants during this engagement relative to the
duties under this Agreement (the "Works") shall be the exclusive
property of the Company; and the Consultant hereby assigns all right,
title, and interest in the same to the Company. Any and all
inventions, discoveries, developments and innovations conceived by the
Consultant prior to the term of this Agreement and utilized by her in
rendering duties to the Company are hereby licensed to the Company for
use in its operations and for an infinite duration. This license is
non-exclusive, and may be assigned without the Consultant's prior
written approval by the Company to a wholly-owned subsidiary of the
Company.
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3. CONFIDENTIALITY: The Consultant acknowledges that during the
engagement she will have access to, make use of, acquire, create,
develop or add to certain confidential and/or proprietary information
regarding the Company, UTi Worldwide Inc. and its subsidiaries
(collectively, the "UTi Group") and their businesses and affiliates
(whether in existence prior to, as of or after the date hereof,
collectively, "Proprietary Information"), which Proprietary
Information shall include without limitation, all of the following
materials and information (whether reduced to writing, whether marked
as "confidential," and whether patentable or protected by copyright):
various trade secrets, inventions, innovations, processes,
information, programs, records, manuals, technical data and
information, "know-how," customer-tailored solutions, confidential
reports and communications, marketing methods, product sales or cost
information, new product ideas or improvements, other consulting
products and processes, research and development programs, identities
or lists of suppliers, vendors, and/or customers, financial
information and financial projections or any other proprietary or
confidential information relating to the UTi Group and its business
and specifications owned or licensed by the Company and/or used by the
Company in connection with the operations of its business. The
Consultant agrees that she shall not disclose any of the aforesaid
Proprietary Information, directly or indirectly, or use any of them in
any manner, either during the term of this Agreement or at any time
thereafter, except as required in the course of this engagement with
the Company. All files, records, documents, blueprints,
specifications, information, letters, notes, media lists, original
artwork/creative, notebooks, and similar items relating to the
business of the Company, whether prepared by the Consultant or the
Company, or otherwise coming into her possession, shall remain the
exclusive property of the Company. The Consultant shall not retain any
copies of the foregoing without the Company's prior written
permission. Upon the expiration of this Agreement, or whenever
requested by the Company, the Consultant shall immediately deliver to
the Company all such files, records, documents specifications,
information, and other items in her possession or under his control.
4. THIRD PARTY RIGHTS: Consultant warrants, represents and covenants that
Consultant shall not use for the benefit of the Company, or disclose
to the Company, any trade secret or proprietary information of any
third party.
5. TERMINATION: This Agreement will automatically terminate on July 31,
2007.
6. INDEPENDENT CONTRACTOR: This Agreement shall not render the Consultant
as an employee, partner, agent of, or joint venture partner with the
Company for any purpose. The Consultant is and shall remain an
independent contractor in her relationship to the Company. The Company
shall not be responsible for withholding taxes with respect to the
Consultant's compensation hereunder. Except as expressly provided in
the Separation Agreement, Consultant shall have no claim against the
Company hereunder or otherwise for vacation pay, sick leave,
retirement benefits, social security, worker's compensation, health or
disability benefits, unemployment insurance benefits, or employee
benefits of any kind.
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7. COMPLETENESS OF THIS AGREEMENT: This Agreement and the Separation
Agreement set forth the entire understanding of the parties relating
to the subject matter hereof, and supersede all prior agreements,
arrangements and understandings, written or oral, relating to such
subject matter. No representation, promise or inducement has been made
by either party that is not embodied in this Agreement or the
Separation Agreement, and neither party shall be bound by or liable
for any alleged representation, promise or inducement not so set
forth.
8. AMENDMENTS TO THIS AGREEMENT: No amendment, change or modification of
this Agreement shall be valid unless in writing signed by the parties
hereto.
9. NOTICES: Any and all notices, demands, or other communications
required or desired to be given hereunder by any party shall be in
writing and shall be validly given or made to another party if
personally served, or if deposited in the United States mail,
certified or registered, postage prepaid, return receipt requested. If
such notice of demand is served personally, notice shall be deemed
constructively made at the time of such personal service. If such
notice, demand or other communication is given by mail, such notice
shall be conclusively deemed given five days after deposit thereof in
the Untied States mail addressed to the party to whom such notice,
demand or other communication is to be given as follows:
If to the Consultant: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: General Counsel
UTi, Services, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. GOVERNING LAW: The laws of the state of California shall govern the
validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties hereto.
11. INSIDE INFORMATION -- SECURITIES LAWS VIOLATIONS. In the course of the
performance of Consultant's duties, it is expected that Consultant
will receive information that is considered material inside
information within the meaning and intent of the federal securities
laws, rules, and regulations. Consultant will not disclose this
information directly or indirectly for Consultant or as a basis for
advice to any other party concerning any decision to buy, sell, or
otherwise deal in the Company's securities or those of any of the
Company's affiliated companies.
12. DISPUTE RESOLUTION: Any dispute regarding the validity or terms of
this Agreement shall be resolved by an arbitrator selected in
accordance with the employment rules of JAMS in Los Angeles County,
California as the exclusive
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remedy for any such dispute, and in lieu of any court action, which is
hereby waived. The only exception is a claim by either party for
injunctive relief pending arbitration.
13. ASSIGNMENT: The Consultant shall not assign any of her rights under
this Agreement or delegate the performance of any of her duties
hereunder without the prior written consent of the Company.
14. SEVERABILITY: If any provision of this Agreement is declared void, or
otherwise unenforceable, such provision shall be deemed to have been
severed from this Agreement which shall otherwise remain in full force
and effect.
15. RIGHTS AND OBLIGATIONS: This Agreement shall be binding upon and inure
to the successors, heirs and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers and to be effective as of the date hereof.
Consultant UTi, Services, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
------------------------------------- ------------------------------------
Its: Global General Counsel
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Exhibit 1
General consulting and transitional services relating to the UTi Group's global
IT infrastructure, systems and related matters as and when requested by the
Chief Executive Officer of UTi Worldwide Inc.
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