EXHIBIT 10.39
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT
(this “Agreement”) is effective as of the [ ___
] day of [ ___ ] , 200 [ _ ] ,
between [ UTi, Services, Inc., a California corporation
] (the “Company”), and [ ___ ]
(“Employee”).
RECITALS
WHEREAS , the Company has
determined that it is in the best interests of the Company, UTi
Worldwide Inc. (“UTi Worldwide”) and the related group
of entities and companies (UTi Worldwide, the Company and such
related entities and companies are referred to herein collectively
as the “UTi Group”) to ensure that the UTi Group will
have the continued dedication of Employee, notwithstanding the
possibility, threat or occurrence of a “Change of Control of
UTi Worldwide” (as defined on Exhibit A attached
to this Agreement and incorporated herein).
NOW, THEREFORE , in
consideration of the promises and covenants set forth below, the
parties hereto agree as follows:
1. Termination of
Employment Following a Change of Control of UTi Worldwide
.
(a) Subject
to the terms and conditions of this Agreement, the Company hereby
agrees to provide the Employee with the payments described in
Section 1(b) below in the event that Employee’s employment
with the Company is terminated by the Company other than for Cause
(as defined below), death or Disability (as defined below) during
the period commencing on the effective date of a Change of Control
of UTi Worldwide and ending on the first anniversary of such
effective date (such period shall be referred to herein as the
“Effective Period”). For purposes of this Agreement,
termination for “Cause” shall include any termination
by the Company as a result of (i) Employee’s willful
failure to perform or the gross negligence in the performance of
Employee’s material duties to the UTi Group (and if such
willful failure or gross negligence is susceptible to cure by
Employee, the failure to effect such cure by Employee within thirty
(30) days after written notice of such willful failure or
gross negligence is given to Employee), (ii) Employee’s
engagement in an act of dishonesty involving or affecting the UTi
Group or the falsification of records thereof,
(iii) Employee’s indictment or conviction for a crime of
theft, embezzlement, fraud, misappropriation of funds or other
alleged act of dishonesty by Employee, or other crime involving
moral turpitude, or (iv) Employee’s engagement in any
violation of law relating to Employee’s employment or
violation by Employee of Employee’s duty of care or loyalty
to the UTi Group. For purposes of this Agreement, Employee shall be
deemed to have become “Disabled” or to have suffered a
“Disability” to the extent Employee is or has been
incapable of performing substantially all of Employee’s
duties and responsibilities to the Company for one hundred twenty
(120) days or more in the aggregate during any consecutive
twelve (12) months.
(b) If
Employee’s employment is terminated by the Company during the
Effective Period other than for Cause, death or Disability, neither
the Company nor the UTi Group shall have any further obligation or
liability to Employee except that Employee shall be
entitled
to receive (a) the Accrued Benefits (as defined below) and
(b) severance equal to twelve (12) months of
Employee’s then current monthly salary, subject to the
condition set forth in Section 1(c) below. Subject to
Section 18 below, such severance shall be payable in twelve
(12) equal monthly installments commencing within sixty
(60) days after Employee’s termination of employment.
For purposes of this Section 1(b), the phrase “Accrued
Benefits shall mean, with respect to Employee (i) the portion
of Employee’s base salary which has been earned up to the
date of termination, (ii) compensation for any accrued and
unused vacation up to the date of termination,
(iii) reimbursement for business expenses properly incurred up
to the date of termination and (iv) such benefits or payments
to which Employee may be entitled under the terms and conditions of
any benefit, equity, incentive or compensation plan, program or
award applicable to Employee and Employee’s termination of
employment to the extent accrued for the benefit of, or owing to,
Employee as of the date of such termination of employment,
excluding the terms of any severance or similar plan applicable to
Employee (collectively, the “Accrued Benefits”).
(c) Employee
agrees that it is a condition precedent to the Company’s
obligations to pay the severance payments provided for in Section
1(b) above that Employee execute a general release and waiver
prepared by the Company releasing and forever discharging the
Company and the UTi Group and each and all of their respective
owners, shareholders, members, predecessors, successors, assigns,
agents, directors, officers and other representatives from any and
all claims, charges, complaints, liabilities, controversies,
rights, demands, costs, and expenses (other than the obligations of
the Company set forth in Section 1(b)), and that such general
release become irrevocable within sixty (60) days of
Employee’s termination of employment. Employee agrees that
Employee will not assign or transfer, or purport to assign or
transfer, to any person any claim or a portion thereof or any
interest therein that Employee might have against the UTi
Group.
2. Not a Contract
of Employment .
Employee acknowledges and agrees that
Employee is an “at will” employee whose employment may
be terminated at any time for any or no reason, and except as
specifically provided for herein, without liability. Nothing in
this Agreement confers on Employee any right of continued
employment or restricts the Company’s right to terminate
Employee’s employment at any time for any or no reason.
3. Exclusivity of
Payments . Employee acknowledges and agrees that Employee
is not entitled to any severance payments or other severance
benefits from the Company, UTi Worldwide or the UTi Group, other
than the payments and benefits expressly provided in Section 1(b)
of this Agreement, except for any benefits which may be due to
Employee in the normal course under any then applicable employee
benefit plan or program of the Company that provides for benefits
after termination of employment in accordance with the terms of
such plan or program. Employee’s right to receive payments or
benefits under this Agreement upon termination of employment will
cease if Employee breaches any provision of Sections 4 or 5
below.
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4. Proprietary
Information .
(a)
Definition . Employee hereby acknowledges that Employee
possesses and may make use of, acquire, create, develop or add to
certain confidential and/or proprietary information regarding the
UTi Group and its 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 or not reduced to writing and
whether or not patentable or protected by copyright): trade
secrets, inventions, processes, formulae, programs, technical data,
“know-how,” procedures, manuals, confidential reports
and communications, marketing methods, product sales or cost
information, new product ideas or improvements, customer-tailored
solutions and other consulting products and processes, new
packaging ideas or improvements, research and development programs,
identities or lists of suppliers, vendors or customers, financial
information and financial projections or any other confidential or
proprietary information relating to the UTi Group and/or its
business. The term “Proprietary Information” shall also
include, without limitation, any confidential or non-public
information of suppliers or customers of the UTi Group obtained by
Employee in the course of Employee’s employment or
association with the Company or the UTi Group. The term
“Proprietary Information” does not include any
information that (i) at the time of disclosure is generally
available to and known by the public (other than as a result of its
disclosure by Employee), (ii) becomes available to Employee on
a lawful, non-confidential basis from a person other than the UTi
Group or its suppliers or customers or its or their
representatives, provided that the source of such information was
not known by Employee to be subject to an obligation of
confidentiality or otherwise disclosed such information to Employee
with the reasonable expectation that it would remain
confidential.
(b)
Nondisclosure . During the term of this Agreement and
thereafter, Employee will not, without the prior express written
consent of the Chief Executive Officer of UTi Worldwide, disclose
or make any use of any Proprietary Information except as may be
required in the course of the performance of Employee’s
services under this Agreement.
(c)
Agreement Not to Solicit Employees and Customers . To
protect the Proprietary Information and trade secrets of the UTi
Group, Employee agrees, during the term of Employee’s
employment with the UTi Group and for a period of one (1) year
thereafter, not to, directly or indirectly, either on
Employee’s own behalf or on behalf of any other person or
entity, (i) to attempt to persuade, induce or solicit or
employ any person who is an employee of the UTi Group or otherwise
encourage such employee to cease or terminate his or her employment
with the UTi Group or (ii) use or otherwise disclose any
Proprietary Information in any attempt to persuade any customer of
the UTi Group to cease to do business or to reduce the amount of
business which any customer of the UTi Group has customarily done
or contemplates doing with the UTi Group or to expand its business
with a competitor of the UTi Group.
(d)
Reasonableness . Employee agrees that the covenants and
agreements contained in this Section 4 are reasonable and
necessary to protect the Proprietary Information of the UTi Group
and that the covenants and agreements by Employee contained in this
Section 4 shall be in addition to any other agreements and
covenants Employee may have agreed to in any other employee
proprietary information, confidentiality, non-disclosure or other
similar agreement and that this Section 4 shall not be deemed
to limit such other covenants and
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agreements, all of which shall continue to survive the termination
of this Agreement in accordanc
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