Employment Agreement - Tejas PB Distributing Inc. and Thomas G. Bigham
EMPLOYMENT AGREEMENT
This employment agreement ("Agreement") is made and entered into
effective as of the __th day of November, 1998 ("Effective Dates"), by and
between TEJAS PB DISTRIBUTING, INC. ("Company"), an Arizona corporation, and
THOMAS G. BIGHAM ("Employee"), a married man.
In consideration of the mutual promises and covenants contained herein,
and other good and valuable consideration, the receipt of which is acknowledged,
Company and Employee agree as provided in this Agreement.
1. Employment. Company hereby employs Employee, and Employee accepts
employment by Company, upon the terms and conditions contained in this
Agreement.
2. Term. Employee's employment by Company shall commence on November
__, 1998, and shall continue for a one year period from the date first written
above.
3. Title. During the period of Employee's employment by Company,
Employee shall be Vice President of the Company and shall have such rights,
powers and authority in such positions as may be designated by Company's Board
of Directors from time to time.
4. Compensation. During the period of Employee's employment by Company,
Employee shall receive from Company at an annual salary of $80,000.00, which
shall be payable proportionately on Company's regular payroll payment dates for
its employees.
5. Fringe Benefits. During the period of Employee's employment by
Company, Employee shall be entitled to participate in all of Company's qualified
retirement plans and welfare benefit plans (e.g., group health insurance) on the
same basis as Company's other employees. In addition, during the period of
Employee's employment by Company, Employee shall be entitled to participate in
all non-qualified deferred compensation and similar compensation, bonus and
stock plans offered, sponsored or established by Company.
6. Automobile Allowance, Telephone and Credit Card. During the period
of Employee's employment by Company, Company shall furnish to Employee the
following:
(a) Company shall pay Employee an automobile allowance of $400
per month. In addition, Company shall pay for up to $200 per month (which amount
shall be reviewed at three-month intervals) in automobile gasoline expenses
charged to Employee's AMEX corporate credit card, or the Company will reimburse
Employee if paid directly by Employee up to the agreed limit. In no event shall
Company be responsible for any other automobile related expenses, including but
not limited to insurance (however Employee shall maintain insurance coverage
reasonably satisfactory to Company), oil, tires, warranty and routine service
and other maintenance and repairs for the automobile. Employee acknowledges that
he may recognize taxable income in connection with Company's providing an auto
allowance.
(b) Company shall furnish to Employee a mobile or cellular
telephone for Employee's use and shall pay all charges in connection therewith
(except Employee shall reimburse Company for the charges each month that are in
excess of $200). The telephone to be furnished to Employee shall be agreed upon
by Company and Employee from time to time.
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(c) Company shall furnish to Employee a Company AMEX corporate
credit card and long distance telephone card for Employee to use solely for
purposes of Company.
7. Confidentiality.
(a) During the period of Employee's employment by Company and
for a one year period thereafter, Employee shall hold in confidence and shall
not disclose or publish, except in the performance of his duties under this
Agreement, any Confidential Information (as defined below) that is presented or
disclosed to him in connection with his employment by Company.
(b) Subject to the provisions of Section 9(c) below, for
purposes of this Agreement the term "Confidential Information" shall mean
information or material that is proprietary to and owned by Company. Such
Confidential Information shall include, without limitation, Company's recipes
for specialty potato chips, manufacturing processes, customer lists, supplier
lists and pricing information.
(c) Notwithstanding the foregoing, the term Confidential
Information shall not include any information or material that:
(i) is in, or has passed into, the public domain;
(ii) is lawfully received by Employee from a third
party;
(iii) is required to be disclosed by Employee by law
or pursuant to an order determination issued by a court or any
federal, state or municipal regulatory or administrative
agency; or
(iv) was in the possession of, or known by, Employee
prior to his Employment by Company.
(d) Employee acknowledges that the Confidential Information of
Company is unique in character and that Company would not have an adequate
remedy at law for a material breach or threatened material breach by Employee of
his covenants under this Section 7. Employee therefor agrees that, in the event
of any such material breach or threat thereof, Company may obtain a temporary
and/or permanent injunction or restraining order to enjoin Employee from such
material breach or threat thereof, in addition to any other rights or remedies
available to Company at law or in equity.
(e) Notwithstanding the foregoing, Employee may disclose
Confidential Information to his attorneys and other advisors on a need to know
basis provided the recipient is directed and required to maintain the disclosed
Confidential Information in confidence.
8. Indemnification.
(a) Company shall indemnify and hold Employee harmless and
defend Employee for, from and against all claims, liabilities, obligations,
fines, penalties and other matters and all costs and expenses relating thereto
that Company and/or such subsidiary or affiliated entity is permitted by
applicable law, except as any of the foregoing arises out of or relates to
Employee's negligence, willful malfeasance and/or breach of this Agreement.
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(b) Company represents and warrant to Employee that neither
its articles of incorporation nor its bylaws nor any resolutions of its
shareholders or board of directors restricts or limits Companies rights or
obligations to indemnify Employee as provided in subsection (a) of this Section
8, except to the extent such restrictions or limitations are required by
applicable law.
9. Noncompete. During the period of Employee's employment by Company,
Employee shall not, directly or indirectly, whether as principal, consultant,
employee, agent, officer, director, trustee or otherwise, engage in the business
of manufacturing specialty potato chips, salted snack foods or popcorn or engage
in the business of distributing specialty potato chips, salted snack foods or
popcorn. In addition, Employee shall not, for a period of sixty (60) months
beginning on the date of termination of his employment, directly or indirectly,
whether as principal, consultant, employee, agent, officer, director, trustee or
otherwise, engage in the State of Texas in the business of manufacturing
specialty potato chips, salted snack foods or popcorn or engage in the State of
Texas in the business of distributing specialty potato chips, salted snack foods
or popcorn. Employee acknowledges that the foregoing limitations are minimum
limitations which are necessary to protect the legitimate interests of Company
because of Employee's sensitive executive position with Company. Therefore, if a
breach of the foregoing shall occur, in addition to any action for damages which
Company may have, Company shall have the right to obtain an injunction as a
matter of right prohibiting Employee's competition in violation of the
foregoing. In the event that the time period of non-competition is deemed to be
unreasonable, Employee acknowledges that 59 months shall be deemed reasonable.
In the event 59 months is deemed unreasonable, then 58 months is deemed
reasonable, and so on, until the foregoing covenant is enforceable to the
fullest extent permitted by law. Similarly, in the event the entire State of
Texas is deemed unreasonable, counties shall be eliminated one by one beginning
with the northwest corner of the State of Texas, continuing down the western
side of the State of Texas and in roughly a west to east linear fashion across
the State of Texas until the geographical limit set forth above is deemed
reasonable to the fullest extent permitted by law.
10. Additional Provisions.
(a) This Agreement shall not be assigned by either Company or
Employee without the other party's prior written consent; otherwise, this
Agreement shall be binding upon, and shall inure to the benefit of, the heirs,
personal representatives, successors and assigns of Company and Employee
respectively.
(b) This Agreement and the rights and obligations of Company
and Employee shall be governed by, and shall be construed in accordance with,
the laws of the State of Arizona without the application of any laws of
conflicts of laws that would require or permit the application of the laws of
any other jurisdiction.
(c) Time is of the essence of this Agreement and each
provision hereof.
(d) This Agreement sets forth the entire understanding of
Company and Employee with respect to the matters set forth herein and cannot be
amended or modified except by an instrument in writing signed by the party
against whom enforcement is sought.
(e) This Agreement is the result of negotiations between
Company and Employee, and Company and Employee hereby waive the application of
any rule of law that otherwise would be applicable in connection with the
interpretation and construction of this Agreement that ambiguous or conflicting
terms
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or provisions are to be interpreted or construed against the party who (or whose
attorney) prepared the executed Agreement or any earlier draft of the same.
(f) If any provision or any portion of any provision of this
Agreement shall be deemed to be invalid, illegal or unenforceable, the same
shall not alter the remaining portion of such provision or any other provision
of this Agreement, as each provision of this Agreement and portion thereof shall
be deemed severable.
(g) Except as may be otherwise required by law, any notice
required or permitted to be given under this Agreement shall be given in writing
and shall be given either by (i) personal delivery, or (ii) overnight courier
service, or (iii) facsimile transmission, or (iv) United States certified or
registered mail, in each case with postage prepaid to the following address or
to such other address as Company or Employee may designate by notice given to
the other party pursuant to this section. Notice shall be effective on (v) the
day notice is personally delivered, if notice is given by personal delivery, or
(vi) the first business day after the date of delivery to the overnight delivery
service, if notice is given by such a delivery service, (vii) the day notice is
received, if notice is given by facsimile, or (viii) the fourth business day
after notice is deposited in the United States mail, if notice is given by
United States certified or registered mail.
Company: Tejas PB Distributing, Inc.
3500 S. La Cometa Drive
Goodyear, Arizona 85338-1500
Fax No. (602) 925-2363
Employee: Thomas G. Bigham
_________________________
_________________________
Fax No. (___)____________
(h) If any action, suit or proceeding is brought in connection
with this Agreement, or on account of any breach of this Agreement, or to
enforce or interpret any of the terms, covenants and conditions of this
Agreement, the prevailing party shall be entitled to recover from the other
party or parties, the prevailing party's reasonable attorneys' fees and costs,
and the amount thereof shall be determined by the court (not by a jury) or the
arbitrator and shall be made a part of any judgment or award rendered.
Company:
Tejas PB Distributing, Inc.
By___________________________________
Its________________________________
Employee:
_____________________________________
Thomas G. Bigham
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