exhibit104.htm


    
      
        

      


      Exhibit
10.4

      


      PROPRIETARY
MATTERS AGREEMENT

      


      THIS
PROPRIETARY MATTERS AGREEMENT (“Agreement”) is made by and between Cabela's
Incorporated, a Delaware corporation (“Company”), and Thomas L. Millner
(“Employee”), effective as of March 13, 2009.

      


      W I T N E
S S E T H :

      


      WHEREAS,
Company has invested, and will continue to invest, substantial time, effort, and
money in the development of its trade secrets, business methods and procedures,
technology, and other specific confidential and proprietary information which
enables Company to compete successfully in its business of the marketing and
sale of hunting, fishing, and camping equipment and other outdoor sporting and
recreational goods, apparel, and services through retail stores and through
direct marketing, including paper or other tangible catalogs, electronic
catalogs, or other electronic media;

      


      WHEREAS,
during the course of Employee’s employment, Company has disclosed and will continue to
disclose to Employee, and allow Employee access to and the use of, knowledge
concerning its trade secrets, business methods and procedures, technology, and
other specific confidential and proprietary information, all of which constitute
the property of Company;

      


      WHEREAS,
the unauthorized use or disclosure of such information would be greatly damaging
to Company and the success of its business; and

      


      WHEREAS,
Company desires to grant Employee certain stock options and restricted stock
units (collectively, the “2009 Awards”), the grant of which is conditioned upon
Employee entering into this Agreement.

      


      NOW,
THEREFORE, in consideration of the mutual promises contained herein, and as a
condition to Company granting Employee the 2009 Awards, and to allow Employee
access to and use of its confidential and proprietary information, Company and
Employee agree as follows:

      


      1.           Nondisclosure
of Confidential Information.

       

      a.           Access.  Employee
acknowledges that employment with Company or any of its affiliates necessarily
has involved, and will involve, exposure to, familiarity with, and the
opportunity to learn highly sensitive, confidential, and proprietary information
of Company, which may include, without limitation, information about Company’s
products and services, markets, customers and prospective customers, the buying
patterns and needs of customers and prospective customers, vendors and
suppliers, miscellaneous business relationships, investment products, pricing,
quoting, costing systems, billing and collection procedures, proprietary
software and the source code thereof, financial and accounting data, data
processing and communications, technical data, marketing concepts and
strategies, business plans, mergers and acquisitions, research and development
of new or improved products and services, and general know-how regarding the
business of Company and its products and services (collectively referred to
herein as “Confidential Information”).  Employee expressly
acknowledges and agrees that Confidential Information may include, without
limitation, confidential and proprietary information belonging to various third
parties, such as Company’s subsidiaries, affiliates, vendors, agents, or
customers, but which has been and will be entrusted to Company for use by
Company to conduct its business.  The failure to mark or designate
information as “confidential” or “proprietary” shall not prevent information
that has been or will be accessed by or disclosed to Employee from being deemed
Confidential Information under this Agreement.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      b.           Valuable
Asset.  Employee further acknowledges that the Confidential
Information is a valuable, special, and unique asset of Company, such that the
unauthorized disclosure or use by Employee or persons or entities outside
Company would cause irreparable damage to the business of
Company.  Accordingly, Employee agrees that, during and after
Employee’s employment with Company or any of its affiliates, Employee shall not
directly or indirectly disclose to any person or entity or use for any purpose
or permit the exploitation, copying, or summarizing of any Confidential
Information of Company, except as specifically required in the proper
performance of Employee’s duties for Company.  Employee represents and
warrants that no such disclosure or use has occurred prior to the date
hereof.

      


      c.           Confidential
Relationship.  Company considers much of its Confidential
Information to constitute trade secrets of Company which have independent value,
provide Company with a competitive advantage over its competitors who do not
know the trade secrets, and are protected from unauthorized disclosure under
applicable law (“Trade Secrets”).  However, whether or not the
Confidential Information constitutes Trade Secrets, Employee acknowledges and
agrees that the Confidential Information is protected from unauthorized
disclosure or use due to Employee’s covenants under this Agreement and
Employee’s fiduciary duties as an employee of Company or any of its
affiliates.

      


      d.           Duties.  Employee
acknowledges that Company has instituted, and will continue to institute,
update, and amend policies and procedures designed to protect the
confidentiality and security of Company’s Confidential Information, including,
but not limited to, policies and procedures designed by Company to protect the
status of Company’s Trade Secrets.  Employee agrees to take all
appropriate action, whether by instruction, agreement, or otherwise, to ensure
the protection, confidentiality, and security of Company’s Confidential
Information, to protect the status of Company’s Trade Secrets, and to satisfy
Employee’s obligations under this Agreement.

      


      e.           Return of
Documents.  Employee acknowledges and agrees that the
Confidential Information is and at all times shall remain the sole and exclusive
property of Company.  Upon the termination of Employee’s employment
with Company or any of its affiliates or upon request by Company at any time,
Employee will promptly return to Company in good condition all Company property,
including, without limitation, all documents, data, and records of any kind,
whether in hard copy or electronic form, which contain any Confidential
Information or which were prepared based on Confidential Information, including
any and all copies thereof, as well as all such materials furnished to or
acquired by Employee during the course of Employee’s employment with Company or
any of its affiliates.

      


      2.           Development
of Intellectual Property.

      


      a.           Definition of Intellectual
Property.  As used herein, the term “Intellectual Property”
shall include, without limitation, any inventions, technological innovations,
discoveries, designs, formulas, know-how, processes, business methods, patents,
trademarks, service marks, copyrights, computer software, ideas, creations,
writings, lectures, illustrations, photographs, motion pictures, scientific and
mathematical models, improvements to all such property, and all recorded
material defining, describing, or illustrating all such property, whether in
hard copy or electronic form.


      
        
           


        

        
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      b.           Company’s Rights in Intellectual
Property.  Employee agrees that all right, title, and interest
of every kind and nature, whether now known or unknown, in and to any
Intellectual Property invented, created, written, developed, conceived, or
produced by Employee during Employee’s employment with Company or any of its
affiliates (i) whether using Company’s equipment, supplies, facilities, and/or
Confidential Information, (ii) whether alone or jointly with others, (iii)
whether or not contemplated by the terms of Employee’s employment, and (iv)
whether or not during normal working hours, that are within the scope of
Company’s actual or anticipated business operations or that relate to any of
Company’s actual or anticipated products or services are, and shall be, the
exclusive property of Company and shall hereinafter be referred to as “Company
Intellectual Property.”  Employee hereby assigns, transfers, and
conveys to Company all of Employee’s right, title, and interest in and to all
Company Intellectual Property existing as of the date of this
Agreement.

      


      c.           Employee’s
Obligations.  Employee agrees to take all reasonably necessary
actions to enable Company to obtain, register, perfect, and/or otherwise protect
its rights in Company Intellectual Property in the United States and all foreign
countries.  Employee irrevocably waives any “moral rights,” or other
rights with respect to attribution of authorship or integrity of Company
Intellectual Property, that Employee may have under any applicable law or under
any legal theory.

      


      i.           Without
limiting the generality of the foregoing, Employee hereby consents and agrees
to: a) promptly and fully disclose to Company any and all Company Intellectual
Property; b) assign to Company all rights to Company Intellectual Property
without limitation or royalty; and c) execute all documents necessary for
Company to obtain, register, perfect, or otherwise protect its rights in Company
Intellectual Property.  Consideration for Employee’s assignment to
Company is hereby acknowledged.  In the event Company is unable, after
reasonable effort, to secure Employee’s signature on any documents necessary to
effectuate this provision, Employee hereby irrevocably designates and appoints
Company as Employee’s agent and attorney-in-fact, to act for and on Employee’s
behalf, and to execute any such documents and to do all other lawfully permitted
acts to further the protection of Company Intellectual Property with the same
legal force and effect as if executed by Employee.

      


      ii.           To
the extent, if any, that any Company Intellectual Property is unassignable or
that Employee retains any right, title, or interest in and to any Company
Intellectual Property, Employee: a) unconditionally and irrevocably waives
the enforcement of such rights, and all claims and causes of action of any kind
against Company with respect to such rights; b) agrees, at Company’s request, to
consent to and join in any action to enforce such rights; and c) hereby grants
to Company a perpetual, exclusive, irrevocable, fully paid-up, royalty-free,
transferable, sub-licensable (through multiple levels of sublicenses), worldwide
right and license to use, reproduce, distribute, display, and perform (whether
publicly or otherwise), prepare derivative works of and otherwise modify, make,
have made, sell, offer to sell, import and otherwise use, disclose, and exploit
(and have others exercise such rights on behalf of Company) all or any portion
of Company Intellectual Property, in any form or media (now known or later
developed).  The foregoing license includes, without limitation, the
right to make any modifications to Company Intellectual Property regardless of
the effect of such modifications on the integrity of Company Intellectual
Property, and to identify Employee, or not to identify Employee, as one or more
authors of or contributors to Company Intellectual Property or any portion
thereof, whether or not Company Intellectual Property or any portion thereof has
been modified.


      
        
           


        

        
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      iii.           Employee
agrees to assist Company in connection with any demands, reissues, oppositions,
litigation, controversy, or other actions involving any item of Company
Intellectual Property.

      


      iv.           Employee
agrees to undertake the foregoing obligations both during and after Employee’s
employment with Company or any of its affiliates, without charge, but at
Company’s expense with respect to Employee’s reasonable out-of-pocket
costs.  Employee further agrees that Company may, in its sole
discretion, deem Company Intellectual Property as a Trade Secret, in which case
Employee will comply with the Confidential Information provisions in this
Agreement.

      


      3.           Acknowledgment
of Company’s Goodwill.  Employee
acknowledges that Company has expended and will continue to expend considerable
time, effort, and resources to develop and market its products and services,
that the relationships between Company and its employees, independent
contractors, customers, prospective customers, vendors, and suppliers are
valuable assets of Company and key to its success, and that employees of Company
establish close professional relationships with other employees, independent
contractors, customers, vendors, and suppliers of Company in the course of their
relationship with Company, all of which constitute goodwill of Company
(“Goodwill”).

      


      4.           Nonsolicitation
of Customers.  In order to
prevent the improper use of Confidential Information and the resulting unfair
competition and misappropriation of Goodwill and other proprietary interests,
Employee agrees that while Employee is employed by Company or any of its
affiliates and for a period of eighteen (18) months following the termination of
Employee’s employment for any reason whatsoever, whether such termination is
voluntary or involuntary, and regardless of cause, Employee will not, directly
or indirectly, on Employee’s own behalf or by aiding any other individual or
entity, call on, solicit the business of, sell to, service, or accept business
from any of Company’s customers (with whom Employee had personal contact and did
business with during the twelve (12) month period immediately prior to the
termination of Employee’s employment) for the purpose of providing said
customers with products and/or services of the type or character typically
provided to such customers by Company.

      


      5.           Nonsolicitation
of Vendors/Employees.  In order to
prevent the improper use of Confidential Information and the resulting unfair
competition and misappropriation of Goodwill and other proprietary interests,
Employee agrees that while Employee is employed by Company or any of its
affiliates and for a period of eighteen (18) months following the termination of
Employee’s employment for any reason whatsoever, whether such termination is
voluntary or involuntary, and regardless of cause, Employee will not, directly
or indirectly, on Employee’s own behalf or by aiding any other individual or
entity:

      


      a.           Encourage,
discourage, interfere with, or otherwise cause, in any manner, any business
partner, independent contractor, vendor, or supplier of Company to curtail,
sever, or alter its relationship or business with Company; or

      


      b.           Employ
or solicit for employment any employee of Company with whom Employee had
personal contact while employed by Company or any of its
affiliates.


      
        
           


        

        
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      6.           Inevitable
Disclosure.  Employee acknowledges that because Trade Secrets
and other Confidential Information cannot practicably be disregarded, the
provision of similar employment services to a Competitor of Company (as defined
in this Section 6) immediately following the termination of Employee's
employment with Company or any of its affiliates would inherently and inevitably
result in the use of Trade Secrets and/or Confidential Information by Employee,
even if Employee were to use Employee's best efforts to avoid using such Trade
Secrets and/or Confidential Information.  For purposes of this
Agreement, a “Competitor” of Company shall mean Bass Pro Shops, Gander Mountain,
Sportsman’s Warehouse, The Sportsman’s Guide, Orvis, Dick’s Sporting Goods, The
Sport’s Authority, Big 5 Sporting Goods, Scheels, L.L. Bean, Lands’ End, REI, or
any other multi-state and/or multi-channel retailer engaged in the sale of
products and/or services associated with hunting, fishing, camping, and/or
casual outdoor apparel and footwear.  In recognition of the foregoing
and in order to prevent the improper use of Trade Secrets and Confidential
Information and the resulting unfair competition and misappropriation of
Goodwill and other proprietary interests, Employee agrees that while Employee is
employed by Company or any of its affiliates and for a period of eighteen (18)
months following the termination of Employee’s employment for any reason
whatsoever, whether such termination is voluntary or involuntary, and regardless
of cause, Employee will not, directly or indirectly, perform services for a
Competitor within the United States of America or Canada similar to the services
Employee currently performs for Company in a capacity that poses the threatened
or inevitable disclosure or use by Employee of Trade Secrets and/or Confidential
Information known to Employee.  Notwithstanding the foregoing,
Employee shall thereafter be restricted from utilizing the Confidential
Information of Company pursuant to Section 1 of this Agreement.

      


      7.           Reasonable
Restrictions.

      


      a.           Applicable to any
Status.  Employee acknowledges and agrees that the
post-employment obligations of this Agreement shall be applicable to Employee
regardless of whether Employee engages in any such competing business activity
as an individual or as a sole proprietor, stockholder, partner, member, officer,
director, employee, agent, consultant, or independent contractor of any other
entity.

      


      b.           Tolling.  In the
event Employee is in breach of the post-employment obligations of this
Agreement, the eighteen (18) month post-employment enforcement period of this
Agreement shall be tolled until such breach is ended unless an injunction is in
place to protect Company’s interests.

      


      c.           Reasonable
Restriction.  In signing this Agreement, Employee is fully
aware of the restrictions that this Agreement places upon Employee’s future
employment or contractual opportunities with someone other than
Company.  However, Employee understands and agrees that Employee’s
employment by Company or any of its affiliates, Employee’s privileged position
within Company, and Employee’s access to Company Confidential Information and
Intellectual Property of Company makes such restrictions both necessary and
reasonable.  Employee further acknowledges and agrees that the
eighteen months provided in Section 6 of this Agreement may not be an adequate
period of time for Company to implement changes or additional procedures to
protect Company's Trade Secrets and/or Confidential Information, but that such
period is a reasonable approximation of the amount of time
necessary.  Employee finally acknowledges and agrees that the
restrictions hereby imposed constitute reasonable protections of the legitimate
business interests of Company and that they will not unduly restrict Employee’s
opportunity to earn a reasonable living following the termination of Employee’s
employment.


      
        
           


        

        
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      8.           Intended
Third Party Beneficiaries.  Employee
acknowledges and understands that some of the Confidential Information,
Intellectual Property, and/or Trade Secret information accessible to Employee in
the performance of Employee’s duties during Employee’s employment may belong to
and be provided by Company’s affiliates (“Third Party
Beneficiaries”).  For purposes of this Agreement, the term
“affiliates” means any entity under common control or ownership with Company,
including, without limitation, Company’s subsidiaries.  Employee
expressly acknowledges and agrees that the Third Party Beneficiaries are
intended third party beneficiaries of this Agreement as it pertains to
Employee’s obligations under this Agreement and shall have the right to enforce
this Agreement directly against Employee in their own names or jointly with
Company or each other.  This Agreement, without more, is not intended
to and shall not be construed as granting any Third Party Beneficiary with any
ownership interest of any kind in any of Company’s Confidential
Information.

      


      9.           Notification.  Employee
acknowledges and agrees that Company may notify anyone employing or contracting
with Employee or evidencing an intention to employ or contract with Employee as
to the existence and provisions of this Agreement.

      


      10.           Future
Awards.  Nothing contained in this Agreement is intended to or
shall be construed to impose any obligation on Company to grant stock options or
restricted stock units to Employee other than the 2009 Awards granted by the
Compensation Committee of the Company’s Board of Directors.

      


      11.           Enforcement
and/or Reimbursement.  Employee
acknowledges and agrees that, by reason of the sensitive nature of the
Confidential Information, Intellectual Property, Trade Secrets, and Goodwill
referred to in this Agreement, a breach of any of the promises or agreements
contained herein will result in irreparable and continuing damage to Company for
which there may not be an adequate remedy at law.  If Employee
violates any of the terms of this Agreement, all Company obligations under this
Agreement shall cease without relieving Employee of Employee’s continuing
obligations hereunder and Employee shall forfeit all outstanding 2009 Awards and
all Company obligations to Employee regarding such 2009 Awards shall
cease.  In addition to the foregoing, to the extent Employee breaches
any provision of this Agreement, Employee shall be required to reimburse Company
for any amounts received as profit or gain from any 2009
Awards.  Employee acknowledges and agrees that said forfeitures and/or
reimbursements represent only a small portion of the actual irreparable and
continuing damages Company would experience if Employee violates the terms of
this Agreement.  As such, Employee further acknowledges and agrees
that, in addition to the foregoing, and the recovery of any additional damages
to which Company may be entitled in the event of Employee’s violation of this
Agreement, Company shall also be entitled to equitable relief, including such
injunctive relief as may be necessary to protect the interests of Company in
such Confidential Information, Company Intellectual Property, Trade Secrets, and
Goodwill and as may be necessary to specifically enforce this
Agreement.  Employee further acknowledges and agrees that the remedies
of forfeiture, reimbursement, and injunctive relief are cumulative and the
forfeiture/reimbursement is not intended as a “buyout” option for Employee or as
a substitute for Employee’s performance under this Agreement.

      


      
        
          
          

        

        
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      12.           Reformation
and Severability.  Employee and
Company intend and agree that if a court of competent jurisdiction determines
that the scope of any provision of this Agreement is too broad to be enforced as
written, the court should reform such provision(s) to such narrower scope as it
determines to be enforceable.  Employee and Company further agree that
if any provision of this Agreement is determined to be unenforceable for any
reason, and such provision cannot be reformed by the court as anticipated above,
such provision shall be deemed separate and severable and the unenforceability
of any such provision shall not invalidate or render unenforceable any of the
remaining provisions hereof.  Employee and Company further agree that
in the event a court of competent jurisdiction determines this Agreement to be
unenforceable and void in its entirety, Company shall be entitled to rescission
of all outstanding 2009 Awards given Employee as partial consideration for
Employee's obligations under this Agreement, and all Company obligations to
Employee regarding such 2009 Awards shall cease.

      


      13.           Integration
and Amendments.  This Agreement,
including the initial paragraph and the recitals to this Agreement, each of
which is incorporated herein and made part of this Agreement by this reference,
is a complete agreement between the parties.  The previous sentence
notwithstanding, Employee expressly acknowledges that as an employee of Company
or any of its affiliates, Employee was and is subject to additional policies and
agreements instituted for the purpose of protecting the confidential and
proprietary information, trade secrets, and goodwill of Company and its
subsidiaries and affiliates; and as such, Employee expressly acknowledges that
all such policies and agreements shall not be replaced and superseded by this
Agreement, but shall be used together with this Agreement to protect the
interests of Company and its subsidiaries and affiliates to the fullest extent
allowed by law.  This Agreement shall be binding upon and for the
benefit of the parties and their respective heirs, executors, administrators,
successors, devisees, permissible assigns, personal representatives, and legal
representatives.  No supplement, modification, or amendment to this
Agreement shall be binding unless executed in writing by Employee and
Company.

      


      14.           Waiver.  Any waiver by
either party of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach or provision
hereof.

      


      15.           Miscellaneous.

      


      a.           At-will
Employment.  Nothing contained in this Agreement shall, to the
extent that Employee is an at-will employee, be deemed to alter or modify
Employee’s status as an at-will employee of Company or any of its
affiliates.

      


      b.           Jurisdiction, Venue, and Governing
Law.  Employee hereby expressly consents to personal
jurisdiction and venue of the state and federal courts located in Nebraska for
any lawsuit that arises from or relates to this Agreement. This Agreement shall
be governed by, construed, and enforced in accordance with the laws of the State
of Nebraska.

      


      c.           Survival.  Employee’s
obligations hereunder shall survive the termination of Employee’s employment
with Company or any of its affiliates or any other agreement or relationship
between Employee and Company.

      


      d.           Assignability.  This
Agreement is assignable by Company.  This Agreement is not assignable
by Employee.

      


      16.           Employee’s
Copy.  EMPLOYEE
ACKNOWLEDGES THAT EMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT AND HAS READ,
UNDERSTOOD, AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS
AGREEMENT.

      


      [Remainder
of this page intentionally left blank; Signature page follows.]


      
        
           


        

        
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      The
parties have executed this Proprietary Matters Agreement effective as of the
date and year first written above.

      


      
        
          
            	
                    CABELA’S
      INCORPORATED,

                    a
      Delaware corporation

                  	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                    By:

                  	
                    /s/
      Charles Baldwin

                  	 
      	
                    /s/
      Thomas L. Millner

                  
	 
      	
                    Charles
      Baldwin, Vice President and

                    Chief
      Human Resources Officer

                  	 
      	
                    Thomas
      L. Millner

                  


          

        

      

       

       
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8-K