Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 19th day of May, 1999, by and between
JLL VENTURES ACQUISITION CORP., a Delaware corporation (hereinafter "Company"),
and Frank Layland an individual (hereinafter "Employee").
W I T N E S S E T H:
WHEREAS, on the date hereof, the Company acquired CNF Inc., a
California corporation ("CNF"), pursuant to the terms of an Agreement and Plan
of Merger (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement the parent of the Company
assumed CNF's Stock Option Plan and all obligations of CNF thereunder, including
the obligation to issue securities to Employee upon exercise of options owned of
record by Employee which have been issued under such plan; and
WHEREAS in connection with the Merger Agreement, Employee agreed to
become employed with the Company upon the terms and conditions herein contained.
NOW, THEREFORE, in consideration of the mutual premises and covenants
of the parties contained within the Merger Agreement and in this Agreement, the
parties hereto, do hereby agree as follows:
1. Employment and Term.
A. The Company hereby employs Employee and Employee hereby
accepts employment by the Company as its Director of Operations. Employee agrees
to serve the Company in such capacity, subject to the terms and conditions of
this Agreement, for a term, commencing on the date hereof and expiring three
years from that date of this Agreement (the "Term").
2. Duties.
A. During the Term, Employee shall use his best efforts to
perform all duties required in furtherance of his position, including without
limitation all such duties as are customarily associated with such position or
as are assigned to him from time to time by executive management or the Board of
Directors of the Company.
B. Employee shall diligently and faithfully devote his entire
time, energy, skill, and best efforts to the performance of his duties under
this Agreement. Employee shall conduct himself at all times so as to advance the
best interests of the Company, and shall not undertake or engage in any other
business activity or continue or assume any other business affiliations which
conflict or interfere with the performance of his services hereunder without the
prior written consent of the Board of Directors of the Company. Employee also
agrees that he shall not usurp or misappropriate, either to himself, or to any
other person or entity, any corporate or other opportunities that would
otherwise be available to the Company.
3. Compensation.
A. The Company shall pay Employee and Employee shall accept,
as his base compensation ("Base Compensation") for all services rendered to the
Company pursuant hereto, an annual salary of $85,000, to be paid in accordance
with the general payroll practices of the Company as from time to time in
effect, subject to all applicable federal and state tax withholding
requirements. Employee shall also be entitled, subject to the terms and
conditions of particular plans and programs, to all fringe benefits afforded to
other employees holding similar positions with the Company in the discretion of
the Board of Directors, including, but not limited to, the right to participate
in any pension, retirement, major medical, group health, disability, accident
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and life insurance, and other employee benefit programs made generally
available, from time to time, by the Company (collectively, "Benefits").
B. In addition to Base Compensation, a "Discretionary Bonus"
may be awarded to Employee on the basis of merit performance on an annual basis
in the discretion of the Company's Board of Directors or Compensation Committee.
Base Compensation and Discretionary Bonus shall hereinafter collectively be
referred to as "Compensation."
C. Employee shall be entitled to participate in any stock
option programs adopted by the Company to the extent determined on a
discretionary basis by the Board of Directors of the Company or Compensation
Committee thereof.
4. Vacation and Reimbursement of Expenses.
A. Employee shall receive paid vacation in each calendar year
in accordance with the written policy of the Company, or as otherwise determined
by executive management or the Board of Directors of the Company, applicable to
employees holding similar positions within the Company to be taken at times
which do not unreasonably interfere with the performance of the Employee's
duties hereunder; provided, however, in the event that Employee is entitled to
in excess of ten (10) paid vacation days, Employee shall not schedule more than
ten (10) consecutive days of vacation during any three month period without the
prior written consent of the Company's Chief Executive Officer or the Chief
Financial Officer.
B. Employee shall be reimbursed for such reasonable expenses
as are directly incurred for the business of the Company upon presentation by
Employee of an itemized account of such expenditures, but only to the extent
that such expenses are deductible to the Company pursuant to rules and
regulations adopted by the United States Internal Revenue Service;
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provided, that any expenses are in accordance with Company policy, only if such
expenses are pre-approved in writing by the Company's Chief Executive Officer or
Chief Financial Officer.
5. Termination.
A. Employee's employment and rights to Compensation and
Benefits hereunder shall terminate immediately if Employee voluntarily leaves
the employment of the Company; except that the Company shall have the obligation
to pay Employee such portion of his Base Compensation provided for in Section
3.A hereof as may be accrued but unpaid on the date Employee voluntarily leaves
the employment of the Company. In the event that Employee voluntarily leaves the
employment of the Company, he shall provide at least ninety (90) days' written
notice.
B. The Company may at any time, upon written notice to
Employee giving the reasons therefor, terminate Employee's employment and his
right to Compensation hereunder "For Cause." As used herein, the term "For
Cause" shall be defined to include: (i) failure to achieve those individual or
corporate performance goals which shall be determined from time to time by
executive management of the Company; (iii) conviction of Employee of any felony,
fraud, embezzlement, or crime of moral turpitude; (iv) controlled substance
abuse or drug addiction; (v) alcoholism which interferes with or affects
Employee's responsibilities; (vi) grossly negligent, reckless or intentional
misconduct which is materially injurious to the Company; (vii) violation of any
express written direction of or any reasonable written rule or regulation
established by the Company' Board of Directors from time to time which violation
has not been cured to the Company's satisfaction within thirty (30) calendar
days of the dispatch of written notice to the Employee of the violation. In the
event of a termination For Cause, Employee's employment and right to
Compensation and Benefits hereunder shall terminate immediately, except that the
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Company shall have the obligation to pay Employee such portion of his Base
Compensation as may be accrued but unpaid on the date his employment is
terminated.
C. Commencing on the one (1) year anniversary of the
Agreement, Employee may also be terminated for any reason ("Without Cause") in
the discretion of the Board of Directors of the Company. In the event of a
termination Without Cause, Employee's employment and right to Compensation and
Benefits shall terminate immediately and Employee shall, in lieu thereof, be
entitled to severance pay consisting of a continuation of Base Compensation and
Benefits for a period of six (6) months. During the period in which payments are
made to Employee pursuant to this Section 5.C, Employee shall remain subject to
the limitations identified in Section 6 hereafter.
6. Confidentiality and Related Matters.
A. Acknowledgment of Nature and Value of Confidential
Information: For the purposes of this Section 6 only, the term "Company" shall
include the Company, CNF, JLL Ventures (Delaware) Corp., a Delaware Corporation
("JLL"), and all subsidiaries of JLL. Employee recognizes, acknowledges and
agrees: (i) that in the course of Employee's employment by the Company it has
been and will continue to be necessary for Employee to acquire, in a fiduciary
capacity of trust, information which could include, in whole or in part, but is
not limited to: information concerning the Company's rate schedules; rate
quotations; the names, addresses, credit terms and nature of services provided
by the vendors utilized by the Company; the names, addresses, credit terms and
nature of services provided to customers of the Company; the identity of the
Company's suppliers, sales representatives, shippers or other entities with whom
Employee has come into contact as a result of his employment with the Company,
or which should otherwise come into his knowledge during the term of this
Agreement; the salaries, skills, education or abilities of the Company's
employees; the Company's sales, sales volume, sales
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methods and sales proposals; the identities of the Company's customers and/or
prospective customers; the identities of key purchasing personnel in the employ
of customers and prospective customers; the amounts and/or kinds of customers'
purchases from the Company; the Company's sources of information and supply; the
Company's products and product designs; the Company's computer programs, system
documentation, source code, algorithms, special hardware or software, service or
product hardware or software, and related software or hardware development; any
useful process, machine or other device or composition of matter which is new
and which is being used or studied by the Company and is not described in a
patent or described in any literature already published and distributed
externally by the Company; the Company's manuals, formulae, tools, processes,
methods, machines, compositions, ideas, improvements, trade secrets, including
but not limited to information falling under the definition of "trade secret"
pursuant to the Uniform Trade Secret Act (or, if applicable, the version thereof
adopted by Delaware), patents, inventions, intellectual property, or other
information or materials relating to the Company's affairs (collectively
referred to herein as the "Confidential Information"); (ii) that the
Confidential Information is the property of the Company and constitutes a major
asset of the Company; (iii) that the use, misappropriation or disclosure of the
Confidential Information would constitute a breach of trust and could cause
irreparable injury to the Company; and (iv) that it is essential to the
protection of the Company's goodwill and to the maintenance of the Company's
competitive position that the Confidential Information be kept secret and that
Employee neither disclose the Confidential Information to others nor use the
Confidential Information to Employee's own advantage or to the advantage of
others.
B. Acknowledgment of Necessity for Protections of Company's
Business. Employee further recognizes, acknowledges and agrees that it is
essential for the proper
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protection of the business of the Company that Employee shall not: (i) solicit
or induce any employee of the Company to leave the employ of the Company; (ii)
hire or attempt to hire any employee of the Company; (iii) solicit the trade of,
or trade with, the customers or suppliers of the Company for any business
purpose other than that of the Company; and (iv) compete against the Company for
a reasonable period of time and within a reasonable geographic area following
the termination or nonrenewal of Employee's employment with the Company, as more
fully addressed in Section 6.F, below.
C. Work Made For Hire. Employee hereby acknowledges and agrees
that each of the copyrightable works authored by Employee related to the
business of the Company (including without limitation, all software and related
documentation, and all written and graphic materials prepared or conceived by
Employee), alone or with others, during Employee's employment with the Company
shall be deemed to be works prepared by Employee within the scope of Employee's
employment with the Company and, as such, shall be deemed to be "works made for
hire" under the United States copyright laws from the inception of creation of
such works. In the event that any of such works shall be deemed by a court of
competent jurisdiction not to be a "work made for hire," this Agreement shall
operate as an irrevocable assignment by Employee to the Company of all right,
title and interest in and to such works, including, without limitation, all
worldwide copyright interests therein, in perpetuity. The fact that such
copyrightable works are created by Employee outside of the Company's facilities
or other than during Employee's working hours with the Company shall not
diminish the Company's right with respect to such works which otherwise fall
within this paragraph. Employee agrees to execute and deliver to the Company
such further instruments or documents as may be requested by the Company in
order to effectuate the purposes of this paragraph.
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D. Non-Disclosure of Confidential Information. In recognition
and consideration of Executive's employment, Compensation and Benefits, the
information which the Company has given and will give Executive regarding the
Company's business, the Executive's introduction to the Company's customers and
prospective customers made in the course of Executive's employment with the
Company, and the carefully-guarded methods of doing business which the Company
utilizes and deems crucial to the successful operation of its business,
Executive has held, and agrees to continue to hold and safeguard, the
Confidential Information in trust and in a fiduciary capacity for the Company,
its successors and assigns. Employee expressly agrees that he shall not, without
the prior written consent of the Company, misappropriate or disclose or make
available to anyone for use outside the Company's organization at any time,
either during Employee's employment with the Company or subsequent to the
termination or nonrenewal of such employment with the Company, for any reason,
including without limitation termination by the Company For Cause or Without
Cause, any of the Confidential Information, whether or not developed by
Employee, except as required by the Company in the performance of Employee's
duties to the Company. Notwithstanding the above, term "Confidential
Information" shall not include information which becomes generally available to
the public (other than as a result of disclosure by the Executive). Furthermore,
if you are formally required to disclose any Confidential Information in the
context of a civil, governmental or regulatory proceeding, you shall provide the
Company with prompt notice of any such requirement so that the Company may seek
an appropriate protective order or waive compliance with the provisions off this
Agreement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, you are, in the opinion of your counsel, compelled to disclose
Confidential Information or else stand liable for contempt of suffer other
censure or penalty, you may disclose that portion of the Confidential
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Information which your counsel advises you to disclose. In any event, you will
not oppose action by, and will cooperate with the civil, governmental or
regulatory agency to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information.
E. Disclosure of Works and Inventions/Assignment of Patents.
In consideration of the promises set forth herein, Employee agrees to disclose
promptly and fully to the Company, or to such person whom the Company may
expressly designate for this specific purpose (its "Designee"), any and all
works, inventions, discoveries and improvements authored, conceived or made by
Employee, solely or with others, during the period of employment by the Company
and where the subject matter of such works, inventions, discoveries or
improvements results from or is suggested by any work which Employee may do for
or on behalf of the Company shall have all rights to such works, inventions,
discoveries and improvements, whether they are patentable or not. The fact that
such works, inventions, discoveries and improvements are made or conceived by
Employee outside of the Company's facilities or other than during the Employee's
working hours with the Company shall not diminish the Company's rights with
respect to such works, inventions, discoveries and improvements which otherwise
fall within this paragraph. Employee agrees that, whenever he is requested to do
so by the Company, during or after termination of Employee's employment by the
Company, Employee shall execute or join in executing any and all applications,
assignments or other instruments which the Company shall deem necessary to apply
for and obtain Letters Patent or Copyrights of the United States or any foreign
country or to otherwise protect the Company's interest therein, and Employee
shall assign all such applications to the Company or its Designee, and shall
provide the Company or its agents or attorneys with all reasonable assistance in
the preparation and prosecution of patent
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applications, drawings, specifications and the like, all at the expense of the
Company, and shall do all that may be necessary to establish, protect and
maintain the rights of the Company or its Designee in the works, inventions,
discoveries, improvements, patent applications and Letters Patent in accordance
with the spirit of this paragraph. Such obligations shall continue beyond the
termination or nonrenewal of Employee's employment with respect to any works,
inventions, discoveries and/or improvements that are authored, conceived of, or
made by Employee during the period of Employee's employment, and shall be
binding upon Employee's successors, assigns, executors, heirs, administrators or
other legal representatives. The Company shall have no rights pursuant to this
Agreement in any work, invention, discovery or improvement of the Employee made
during the Term of Employee's employment by the Company if such work, invention,
discovery or improvement has not arisen out of the or by reason of Employee's
work with the Company or does not relate to the products, business or operations
of the Company, although Employee shall nonetheless inform the Company of any
such work, invention, discovery or improvement.
F. Restrictions on Competition. Employee covenants and agrees
that, for and in consideration of the Compensation received hereunder, the
sufficiency and receipt of which is hereby acknowledged, during the period of
Employee's employment hereunder (and for the period during which payments are
made pursuant to Section 5.C. hereof) and for a period of one (1) year
thereafter, Employee shall not, in any state or foreign country in which the
Company does business, engage, directly or indirectly, whether as principal or
as agent, officer, director, employee, consultant, shareholder, or otherwise,
alone or in association with any other person, corporation or other entity, in
any "Competing Business". For purposes of this Agreement, the term "shareholder"
shall exclude any interest owned by Employee in a public company to the
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extent the Employee owns less than ten percent (10%) of any such company's
outstanding common stock. For the further purposes of this Agreement, the term
"Competing Business", shall mean any person, corporation or other entity that is
engaged in the business of selling portable computer peripherals or similar
products being manufactured, developed, sold, distributed or licensed by the
Company which directly competes with the business of the Company at the time of
such termination or nonrenewal. Accordingly, the Company is granted the right by
Employee to apply to any court of competent jurisdiction for one or more
temporary or permanent injunctions enjoining Employee, his agents and employees,
from violating the provisions of this Agreement and/or from continuing to breach
such provisions. This Section 6.F shall not be effective for any purpose
whatsoever if Employee is terminated Without Cause, except during the period
during which payments are made pursuant to Section 5.C hereof.
G. Employee's Abilities. Employee represents that Employee's
experience and capabilities, and the limited provisions of the
immediately-preceding Section 6.F, are such that he will not be prevented from
earning his livelihood in businesses similar to the Company, other than the
"Competing Business," as specifically defined in the immediately preceding
Section 6.F. Employee acknowledges that there are a significant number of
businesses for which his qualifications and experience would render him
qualified for employment that are within the states and foreign countries
referred to in Section 6.F. which do not constitute a "Competing Business" such
that his ability to become employed after the termination or nonrenewal of this
Agreement would not be impaired.
H. Non-Solicitation of Customers and Suppliers. Employee
agrees that during the course of his employment with the Company (and for the
period during which payments are made pursuant to Section 5.C hereof), and for a
period of one (1) year thereafter, he shall not,
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directly or indirectly, solicit the trade of, or trade with, any past or present
customer or supplier of the Company for any business purpose that competes
directly or indirectly with the business undertaken by the Company.
I. Non-Solicitation of Employees. Employee agrees that during
the course of his employment with the Company (and for the period during which
payments are made pursuant to Section 5.C hereof) and for two (2) years
following any termination or nonrenewal of Employee's employment with the
Company, including, without limitation, termination by the Company For Cause or
Without Cause, Employee shall not, directly or indirectly, solicit or induce, or
attempt to solicit or induce, any employee of the Company to leave the Company
for any reason whatsoever, or assist or participate in the hiring of any
employee of the Company to work for another entity.
J. No Prior Agreements. Employee represents and warrants that
Employee is not a party to or otherwise subject to or bound by the terms of any
contract, agreement or understanding which in any manner would limit or
otherwise affect Employee's ability to perform his obligations hereunder,
including without limitation any contract, agreement or understanding containing
terms and provisions similar in any manner to those contained in this Section 6.
Employee further represents and warrants that his employment with the Company
will not under any circumstances require him to disclose or use any confidential
information belonging to prior employers or other persons or entities, or to
engage in any conduct which may potentially interfere with the contractual,
statutory or common-law rights of such other employers, persons or entities. In
the event that Employee knows or learns of any facts whatsoever which suggest
that such interference might arguably occur as the result of any proposed
actions by either
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Employee or the Company, Employee expressly promises that he will immediately
bring such facts to the Company's attention.
K. Remedies. In the event of a breach by Employee of any of
the terms of this Agreement, the Company shall be entitled, if it shall so
elect, to institute legal proceedings to obtain damages for any such breach, or
to enforce the specific performance of this Agreement by Employee and to enjoin
Employee from any further violation of this Agreement, and to exercise such
remedies cumulatively or in conjunction with all other rights and remedies
provided by law. Employee acknowledges and agrees that money damages for any
breach by him of any of the provisions of this Agreement may be inadequate to
compensate the Company for the injuries it may suffer as the result of any such
breach, and accordingly that the Company shall be entitled to injunctive relief
against Employee, in addition to money damages, in the event of any such breach
by Employee.
L. Review by Counsel. Employee expressly acknowledges and
represents that Employee has been given a full and fair opportunity to review
this Agreement with an attorney of Employee's choice, and that Employee has
satisfied himself, with or without consulting with counsel, that the terms and
provisions of this Agreement, specifically including, but not limited to, the
restrictive covenant and related provisions of Section 6 hereof, are reasonable
and enforceable.
M. Return of Materials. Upon the termination or nonrenewal of
Employee's employment with the Company for any reason, including without
limitation termination by the Company For Cause or Without Cause, or at any time
upon demand, Employee shall promptly deliver to the Company all Company property
and materials, including without limitation all documents or other materials
constituting, containing, referencing or relating to the "Confidential
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Information" referred to in this Section 6, and any other Company property of
any nature whatsoever, including without limitation correspondence, computer
disks or other electronically-stored information, drawings, blueprints, manuals,
letters, notes, notebooks, reports, flow-charts, programs, proposals and any
documents concerning the Company's customers, or concerning services, products
or processes provided by or to, or used by, the Company.
N. Company-Created Materials. All material that may be
furnished to the Employee, together with literature, rate schedules, customer
lists, forms, filing systems and any other property, documents or other
materials furnished or made available by the Company to the Employee, shall be
and remain the property of the Company, and shall be returned by the Employee to
the Company upon any termination or nonrenewal of employment or at any time upon
demand.
O. Employee-Created Materials. All material created by the
Employee during the term of his employment with the Company which is incidental
to or related in any way to the Employee's employment, or to the Company's
business, shall be the property of the Company, and shall be delivered to the
Company upon any termination or nonrenewal of Employee's employment or at any
time upon demand.
P. Definitions. For purposes of this Section 6, the term,
"material(s)" shall include, but shall not be limited to, data stored in
computers, voicemail or any other electronic, magnetic, or mechanical storage
device, any passwords, codes or keys required to access all or any portion of
such material, and the "Confidential Information" referred to in Section 6.A.
hereof.
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7. Conflict of Interest.
Employee covenants that, during the Term, he will disclose to
the Company, in writing, any and all interests he may have, whether for profit
or compensation or not, in any venture or activity which could potentially
interfere with his ability to perform under this Agreement or create a conflict
of interest for him with the Company. For purposes of this paragraph 7 only,
"conflict of interest" shall mean ownership of greater than one percent (1%) of,
or $250,000 worth of equity in, another company which conducts business similar
to that undertaken by the Company.
8. Notices.
All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, at the following addresses or to such other
address as either party may designate by like notice:
A. If to Employee, to:
Frank Layland
17221 N. 60th Place
Scottsdale, AZ 85254
With a copy to:
Stephen Boatwright, Esquire
Gammage & Burnham
2 North Central, 18th Floor
Phoenix, AZ 85004
B. If to Company, to:
JLL Ventures (Delaware) Corp.
7722 East Gray Road
Scottsdale, AZ 85260
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With a copy to:
Buchanan Ingersoll Professional Corporation
11 Penn Center, 14th Floor
1835 Market Street
Philadelphia, Pa. 19103
Attn.: Stephen M. Cohen, Esquire
9. Basic Indemnification.
Company shall indemnify and defend Employee and his heirs,
executors and administrators against any costs or expense (including reasonable
attorneys' fees and amounts paid in settlement, if such settlement is approved
by the Company), fine, penalty, judgment and liability reasonably incurred by or
imposed upon Employee in connection with any action, suit or proceeding, civil
or criminal, to which Employee may be made a party or with which Employee shall
be threatened, by reason of Employee's being or having been an employee, unless
with respect to such matter Employee shall have been adjudicated in any
proceeding not to have acted in good faith or in the reasonable belief that the
action was in the best interests of the Company, or unless such indemnification
is precluded by law, public policy, or in the judgment of the Company's Board of
Directors, such indemnification is being sought as a result of actions of
Employee which were either : (i) grossly negligent; (ii) reflective of Employee
misconduct; (iii) in violation of rules, regulations or laws applicable to the
Company; or (iv) in disregard of Company policies.
10. Additional Provisions.
A. Binding Agreement. This Agreement, including without
limitation its confidentiality, restrictive covenant and related provisions,
shall inure to the benefit of, and be binding upon, the Company and its
successors and assigns and Employee, his heirs, executors, administrators and
legal representatives, subject to the provisions of Section 10.F. hereof, which
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expressly prohibits the assignment or delegation of any of Employee's personal
rights or obligations hereunder.
B. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
cannot be modified orally. This Agreement supersedes all prior and
contemporaneously-made written or oral agreements between the parties or between
Employee and CNF relating to the subject matter hereof. No modification or
waiver of any of the provisions hereof shall be effective unless set forth in a
writing that specifically states that it is intended to be a modification of
this Agreement and that is signed by the Chief Executive Officer of the Company.
C. Modification. If any provision(s) of this Agreement shall
be or shall become illegal or unenforceable in whole or in part, for any reason
whatsoever, the remaining provisions shall nevertheless be deemed valid, binding
and subsisting, and any invalid or unenforceable provision(s) shall be deemed
modified to the least extent possible so as to make them valid and enforceable
and so as to give the maximum effect allowable by law to the parties' original
intent as expressed by the terms hereof.
D. No Waiver. No failure on the part of the Company to
exercise, and no delay by the Company in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Company of any right, power or remedy hereunder, preclude any
other or further exercise thereof, or the exercise of any other right, power or
remedy by the Company.
E. Person. "Person" as used herein shall mean a natural
person, joint venture, corporation, partnership, trust, estate, sole
proprietorship, governmental agency or authority or other juridical entity.
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F. Personal Services Contract. This is a personal services
contract and the rights and obligations set forth herein may not be assigned or
delegated by Employee, except as otherwise specifically provided in this
Agreement with respect to benefits payable upon Employee's disability or death,
without the express, written consent of the Company. This Agreement shall be
binding upon and inure to the benefit of the Company, its successors and
assigns. This Agreement may be assigned by the Company to any party, without the
consent of Employee. The transfer of Employee to any parent, affiliate or
subsidiary of the Company shall constitute an assignment of this Agreement.
G. Headings. The headings of the several sections of this
Agreement have been inserted for convenience of reference only and shall in no
way be used to restrict, modify, or explain any of the terms or provisions
hereof.
H. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to its, or any other sovereignty's, conflicts of laws principles.
The parties agree that any claims brought pursuant to this Agreement shall be
brought in a court of competent jurisdiction located in Phoenix, Arizona.
I. Tolling Period. The non-competition, non-disclosure and
non-solicitation obligations contained in Section 6 of this Agreement shall be
extended by the length of time during which Employee shall have been in breach
of any of the provisions of such Section 6.
J. Company Violation Not a Defense. In an action by the
Company to enforce any provision of this Agreement, any claims asserted by
Employee against the Company shall not constitute a defense to the Company's
action.
K. Release. In consideration of Executive's employment
hereafter with the Company, Executive acknowledges and represents that, with the
exception of ordinary course
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reimbursement of business expenses and accrued vacations reflected within the
financial statements of CNF, Inc., he has no outstanding claims of any kind
whatsoever, including but not limited to, any claim for outstanding
indebtedness, past salary, reimbursements, or benefits of any type against CNF
or any of its affiliates or subsidiaries and that if he has any such claim, any
and all such claims are hereby forever waived and released.
L. Construction. This Agreement shall be construed according
to the plain meaning of its terms, and not strictly for or against either party
hereto.
M. Counterparts. This Agreement may be executed in
counterpart, and the counterparts, taken together, shall constitute the entire
Agreement. The Agreement may further be executed by facsimile transmission, and
the facsimile signatures may be deemed original signatures for all purposes,
including for purposes of the Best Evidence Rule and all other rules or
doctrines of similar effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
IMPORTANT NOTICE: THIS AGREEMENT RESTRICTS EXECUTIVE'S RIGHTS
TO OBTAIN OTHER EMPLOYMENT FOLLOWING HIS EMPLOYMENT WITH THE
COMPANY. BY SIGNING IT, EXECUTIVE ACKNOWLEDGES THIS FACT, AND
FURTHER ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY THE COMPANY
TO READ THE AGREEMENT CAREFULLY, AND/OR TO CONSULT WITH
COUNSEL OF HIS CHOICE CONCERNING THE LEGAL EFFECTS OF SIGNING
THE AGREEMENT, PRIOR TO SIGNING IT.
By:_/s/ Vincent J. Marold__________ Dated:______________________________
Vincent J. Marold, President
By:_/s/ Frank Layland______________ Dated:______________________________
Frank Layland as Executive
WITNESS:
___________________________________
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