EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of May 1,
2007, by and between Smoky Market Foods, Inc., a Nevada corporation (the
"Company"), and Xxxxxx X. Xxxxxxxx ("Employee").
RECITALS
A. The Company desires to retain Employee as an employee of the Company
subject to the terms and conditions of this Agreement.
C. Employee desires to continue his employment with the Company subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of this Agreement and of the covenants and
conditions contained in this Agreement, the parties hereto agree as follows:
1. Employment; Location. The Company hereby employs Employee, and Employee
hereby accepts such employment, in Santa Xxxx County in the State of California
or in such other location as may be mutually agreed between Employee and the
Company.
2. Term. The Company agrees to employ Employee, and Employee agrees to accept
employment with the Company, for the thirty six (36) month period beginning on
the date first set forth above (the "Term"), unless this Agreement is sooner
terminated pursuant to the terms of this Agreement. If Employee's employment
with the Company continues beyond the Term, the terms of this Agreement will
continue to govern Employee's employment with the Company.
3. Duties. Employee's title shall be Chief Executive Officer and President of
the Company. Employee's duties shall include such duties as are specifically
assigned or delegated to Employee by the Board of Directors of the Company (the
"Board") and such other duties as are typically performed by an employee with
the same position as Employee. Employee acknowledges that the Board may change,
increase or decrease Employee's title, position and/or duties from time to time
its discretion. Employee shall diligently execute his or her duties and shall
devote his full time, skills and efforts to such duties during ordinary working
hours. Employee shall faithfully adhere to, execute and fulfill all lawful
policies established from time to time by the Company.
4. Compensation and Benefits. The Company shall pay Employee, and Employee
accepts as full compensation for all services to be rendered to the Company, the
following compensation and benefits:
4.1 Base Salary. During the Term, the Company shall pay Employee an annual
base salary per year in an amount not less than $175,000. Such annual base
salary to be payable in equal installments at least monthly by the last day of
each month or at more frequent intervals in accordance with the Company's
customary pay schedule. During the Term, the base salary of Employee shall not
be reduced below the minimum required by this Section. The Employee's annual
base salary shall be reviewed and adjusted annually for performance and
comparable job compensation as compared to competitive companies as mutually
agreed by the Board and Employee. If Employee's employment continues beyond the
expiration of the Term, Employee's annual base salary shall be as mutually
agreed by the Company and Employee.
4.2 Stock Options. With respect to all options to purchase common shares of
Company previously granted to Employee or granted during the Term ("Options"),
unless otherwise agreed in writing by Employee in Employer's discretion, such
Option shall be (and hereby is) amended to provide that if Employee's employment
is terminated by the Company without Cause Subsequent to a Change of Control
Event pursuant to Section 7.4, all such Options shall immediately vest as of the
moment before the effective date of the Change of Control Event. Upon execution
of this Agreement, the Company shall grant to Employee an option to purchase
425,000 shares of common stock at an exercise price of $0.10 per share vesting
25% on May 31, 2007 and 1/48 each month thereafter (and otherwise consistent
with the Company's stock incentive plan and this Section 4.2).
4.3 Bonus.
(a) Annual Bonus. Employee shall be eligible to receive an annual
bonus equal to up to eighty percent (80%) of Employee's base salary as of the
last day of the calendar year to which such bonus relates upon the achievement
of performance measures mutually agreed to by Employee and the Board. Employee
and the Board shall, prior to the end of the first month of each calendar year,
negotiate in good faith with the objective of agreeing upon performance
objectives and related bonus amounts for the upcoming fiscal year. In the event
that Employee and the Board are not able to reach such a mutual agreement, the
amount of any bonus shall be in the discretion of the Board.
(b) Signing Bonus. Upon execution of this Agreement, Employee shall
receive a bonus of 1,500,000 shares of common stock to be issued as restricted
securities. Employee represents to the Company that Employee is an "accredited
investor," as defined in Rule 501 under the Securities Act, has adequate
knowledge and experience in the purchase of securities of early stage companies
so as to be able to protect his interest and is purchasing such shares for
investment purposes (with no plan or intent to resale or distribute). Employee
understands that such shares are "restricted securities," as defined in Rule
144, and will bear a standard legend reflecting such restrictions.
(c) Incentive Bonus. During the Term, Employee shall be granted an
additional 1,000,000 shares of common stock following the first fiscal year that
(i) revenues of the Company reach each multiple of $50 million (i.e. $50
million, $100 million, $150 million), and (b) with respect to such year, the
Company's net income is at least 7.5% (after-tax) of revenue.
4.4 Additional Benefits. Employee shall be eligible to participate in, and
be subject to, the Company's employee benefit plans for, and policies governing,
employees, if and when any such plans and policies may be adopted, including,
without limitation, bonus plans, pension or profit sharing plans, incentive
stock plans, and those plans and policies covering life, disability, health, and
dental insurance in accordance with the rules established in the discretion of
the Board for individual participation in any such plans and policies as may be
in effect from time to time.
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4.5 Vacation, Sick Leave, and Holidays. Beginning on the date hereof,
Employee shall be entitled to vacation, sick leave and holidays at full pay in
accordance with the Company's policy. Employee shall not be paid for any unused
sick leave for which he has been credited.
4.6 Board Seat. During the Term, at any time Employee is not a member of
the Board of Directors of Company, Employee shall have the right to notice of
meetings of the Board of Directors of Company, the right to attend any meetings
of the entire Board of Directors of Company and the right to receive all
materials delivered to the directors of Company in connection with such
meetings.
4.7 Deductions. The Company shall have the right to deduct from the
compensation due to Employee hereunder any and all sums required for social
security and withholding taxes and for any other federal, state or local tax or
charge which may be hereafter enacted or required by law as a charge on
compensation of Employee.
5. Business Expenses. The Company shall promptly reimburse Employee for all
reasonable out-of-pocket entertainment and business expenses he incurs in
fulfilling his duties hereunder, in accordance with the general policy of the
Company in effect from time to time, provided that Employee furnishes to the
Company adequate records and other documentary evidence required by the general
policy of the Company and all federal and state statutes and regulations issued
by the appropriate taxing authorities for the substantiation of each such
business expense as a deduction on the federal or state income tax returns of
the Company.
6. Termination of Employee's Employment.
6.1 Termination of Employment by the Company for Cause. Employee's
employment may be terminated by the Company at any time for "Cause." For
purposes of this Agreement, "Cause" shall include (i) Employee's material breach
of this Agreement, which breach cannot be cured or, if capable of being cured,
is not cured within fifteen (15) days after receipt of written notice of the
need to cure, (ii) any act of theft, embezzlement, conversion or other taking or
misuse of the property or opportunities of the Company, (iii) any fraudulent or
criminal activities, (iv) any grossly negligent or unethical activity, (v) any
activity that causes substantial harm to the Company, its reputation, or to its
officers, directors or employees (including, without limitation, the illegal
possession or consumption of drugs for which Employee does not have a valid
prescription on Company property or in the course of performing services for the
Company), or (vi) habitual neglect of or deliberate or intentional refusal to
perform his duties and obligations under this Agreement. A determination of
whether Employee's actions justify termination for Cause and the date on which
such termination is effective shall be made in good faith by the Board. A
termination of Employee's employment pursuant to this Section 6.1 shall be
effective as of the effective date of the notice by the Board to Employee that
it has made the required determination, or as of such subsequent date, if any,
as is specified in such notice.
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6.2 Termination by the Company Without Cause. Upon not less than 15 day's
prior written notice, the Company may terminate Employee's employment without
Cause. A termination of Employee's employment pursuant to this Section 6.2 shall
be effective as of the later of (i) 15 days after the effective date of the
notice to Employee that the Company has elected to terminate his employment
without Cause pursuant to this Section 6.2, or (ii) as of such subsequent date,
if any, as is specified in such notice.
6.3 Termination By Employee For Good Reason. Employee may terminate his
employment under this Agreement at any time for Good Reason, provided Employee
has delivered a written notice to the Board of Directors that briefly describes
the facts underlying Employee's belief that Good Reason exists and the Company
has failed to cure such situation within 15 days of its receipt of such notice.
For purposes of this Agreement, Good Reason shall mean and consist of:
(a) a material breach by the Company of any of its obligations,
duties, agreements, representations or warranties under this Agreement; or
(b) without Employee's prior written consent, the transfer or
relocation of Employee's place of employment to any place other than Washoe
County, except for reasonable travel on the business of the Company.
6.4 Termination by Employee Without Good Reason. Upon not less than 15
day's prior written notice (which notice shall specify the effective date of the
termination), Employee may terminate his employment under this Agreement by such
notice without Good Reason.
6.5 Termination of Employment by Death. If Employee dies during the term of
employment, Employee's employment shall be terminated effective as of the end of
the calendar month during which Employee died.
6.6 Disability. The Company or Employee may terminate Employee's employment
under this Agreement if Employee shall become unable to fulfill his duties under
this Agreement for a period of 90 days, as measured by the Company's usual
business activities, by reason of any medically determinable physical and/or
mental disability determined in accordance with the procedure in this Section
6.6. If in the opinion of the Company or Employee, Employee is disabled for such
90 day period, then the following shall occur:
(a) the Company or Employee shall promptly so notify (by dated written
notice) the insurance company or carrier that, at that time, insures the
employees of the Company against long-term disability (the "Company's Insurance
Carrier") and request a determination as to whether Employee is disabled
pursuant to the terms of the Company's long-term disability plan or policy; and
(b) the matter of Employee's disability shall be resolved, and
Employee and the Company shall abide by the decision of, the Company's Insurance
Carrier.
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A termination of Employee's employment pursuant to this Section 6.6 shall be
effective ninety (90) days after the date as of which it is determined, pursuant
to this Section 6.6, that Employee was disabled. If Employee is not covered by a
Company-sponsored disability policy on the date that the Company and/or Employee
believe that Employee may have a medically determinable physical and/or mental
disability, the Board shall make the determination of whether Employee has a
medically determinable physical and/or mental disability using the definition of
disability, including applicable court interpretations, used for purposes of the
Americans With Disabilities Act of 1990, as amended.
7. Effect of Termination of Employee's Employment.
7.1 Provisions Applicable to All Terminations. In the event Employee's
employment is terminated for any reason, (a) not later than 30 days after the
effective date of the termination, all cash compensation described in this
Agreement that was due through the effective date of the termination (or in the
case of a termination under Section 6.6, within 30 days of the date the
Company's Insurance Carrier makes a disability determination), but unpaid, shall
be computed and paid to Employee by the Company; and (b) Employee, or his heirs,
or estate, as the case may be, shall receive all compensation and employee
benefits accrued through the effective date of the termination, and all benefits
provided through the Company's insurance plans pursuant to the terms and
conditions of such insurance plans or that the Company is required to provide by
governing law.
7.2 Termination by Company With Cause or by Employee Without Good Reason.
If Employee's employment is terminated by the Company for Cause pursuant to
Section 6.1, by Employee without Good Reason pursuant to Section 6.4 or by
either the Company or Employee after the expiration of the Term, then in such
event, Employee shall not be entitled to any compensation in addition to that
set forth in Section 7.1.
7.3 Termination by Company Without Cause or by Employee for Good Reason. If
Employee's employment is terminated by the Company without Cause pursuant to
Section 6.2 prior to the expiration of the Term or by Employee for Good Reason
pursuant to Section 6.3 prior to the expiration of the Term, then, in addition
to complying with the requirements of Section 7.1, the Company shall, upon
receipt of a written release from Employee in form and substance reasonably
satisfactory to the Company with respect to all liabilities arising prior to and
in connection with such termination (other than under Options and this Section),
continue to pay, when due in accordance with Section 4.1, to or for the benefit
of Employee or, if applicable, his heirs or estate, as their rights may be, one
hundred percent (100%) of any and all payments of: (i) annual base salary; and
(ii) 100% of the Company health benefits coverage then in effect (with Company
/Employee contributions remaining the same as during the period immediately
prior to termination); in each case through the period ending on the 12-month
anniversary of the effective date of the termination of Employee's service. In
addition, subject to the achievement of any performance measures and other terms
and conditions governing such bonus (including any retention of Board
discretion), Employee shall be entitled to receive Employee's annual bonus
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related to any complete or partial calendar year of service for which a bonus
determination has not been made as of the date of termination, with any bonus to
be pro rated for the portion of the calendar year during which Employee remained
employed with the Company. For example, if Employee's employment is terminated
by the Company without Cause during the Term on August 31 of a given calendar
year, and all conditions to Employee's bonus are satisfied (including any
conditions involving the exercise of Board discretion), Employee will be
entitled to receive, at the time all conditions are satisfied and determinations
are made, 8/12 of the bonus to which Employee would have otherwise been entitled
with respect to such calendar year.
7.4 Termination by Company Without Cause Subsequent to Change of Control.
If Employee's employment is terminated by the Company without Cause pursuant to
Section 6.2 prior to the Expiration of the Term and within ninety (90) days
prior to and one year after a Change of Control Event then, in addition to
complying with the requirements of Section 7.1, the Company shall, upon receipt
of a written release from Employee in form and substance reasonably satisfactory
to the Company with respect to all liabilities arising prior to and in
connection with such termination (other than under Options and this Section),
continue to pay, when due in accordance with Section 4.1, to or for the benefit
of Employee or, if applicable, his heirs or estate, as their rights may be, one
hundred percent (100%) of any and all payments of: (i) annual base salary; and
(ii) 100% of the Company health benefits coverage then in effect (with Company
/Employee contributions remaining the same as during the period immediately
prior to termination) through the period ending on the 24-month anniversary of
the effective date of the termination of Employee's service. A Change of Control
Event means (a) any capital reorganization, reclassification of the capital
stock of Company, consolidation or merger of Company with another corporation in
which Company is not the survivor (other than a transaction effective solely for
the purpose of changing the jurisdiction of incorporation of Company), (b) the
sale, transfer or other disposition of all or substantially all of the Company's
assets to another entity, (c) the acquisition by a single person (or two or more
persons acting as a group, as a group is defined for purposes of Section
13(d)(3) under the Securities Exchange Act of 1934, as amended) of more than 40%
of the outstanding common shares of Company.
7.5 Return of Company Property. Upon the termination or end of the
employment of Employee with the Company or at any time upon the request of the
Company, Employee shall provide to the Company all property belonging to the
Company, including, but not limited to, keys, card passes, credit cards,
electronic equipment including computers and personal digital devices, cellular
telephones, Company automobiles, and all data and Company intellectual property
whether located on Company property or otherwise.
8. Covenant Not to Compete
8.1 Covenant. Employee hereby agrees that, while he is employed by the
Company and during a period of 12 months following the termination of his
employment with the Company, Employee will not directly or indirectly compete
(as defined in Section 8.2 below) with the Company or its affiliates anywhere in
the United States. It is the intention of the Company and Employee that this
provision be interpreted to only prevent actual competitive harm to the Company
and not otherwise hinder or restrict Employee in his efforts to find continued
employment in his field of training and expertise.
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8.2 Direct and Indirect Competition. As used herein, the phrase "directly
or indirectly compete" shall include owning, managing, operating or controlling,
or participating in the ownership, management, operation or control of, or being
connected with or having any interest in, as a stockholder, director, officer,
employee, agent, consultant, assistant, advisor, sole proprietor, partner or
otherwise, any Competing Business (as defined below). For purposes of this
Agreement, a "Competing Business" shall be any business or enterprise other than
the Company that is engaged in the Company's Business (as defined below). This
prohibition, however, shall not apply to ownership of less than five percent
(5%) of the voting stock in companies whose stock is traded on a national
securities exchange or in the over-the-counter market. For purposes of this
Agreement the "Company's Business" means production and distribution of
wood-smoked foods.
8.3 Nonsolicitation. Employee hereby agrees that, while he is employed by
the Company pursuant to this Agreement, and, during a period of 12 months
following the termination of his employment with the Company, he will not,
directly or indirectly, through an affiliate or otherwise, for his account or
the account of any other person, (a) solicit business substantially similar to
the Company's Business from any person or entity that at the time of termination
is or was a customer of a Company, whether or not he had personal contact with
such person during and by reason of employment with a Company; (ii) in any
manner induce or attempt to induce any employee of a Company to terminate his or
her employment with a Company; or (iii) materially and adversely interfere with
the relationship between a Company and any employee, contractor, supplier,
customer or shareholder of a Company.
8.4 Enforceability. If any of the provisions of this Section 8 is held
unenforceable, the remaining provisions shall nevertheless remain enforceable,
and the court making such determination shall modify, among other things, the
scope, duration, or geographic area of this Section to preserve the
enforceability hereof to the maximum extent then permitted by law. In addition,
the enforceability of this Section is also subject to the injunctive and other
equitable powers of a court as described in Section 12 below.
8.5 Jurisdiction. For the sole purpose of enforcement of the Company's
rights under this Section 8, the Company and Employee intend to and hereby
confer jurisdiction to enforce the restrictions set forth in this Section 8 (the
"Restrictions") upon the courts of any jurisdiction within the geographical
scope of the Restrictions. If the courts of any one or more of such
jurisdictions hold the Restrictions unenforceable by reason of the breadth of
such scope or otherwise, it is the intention of the Company and Employee that
such determination not bar or in any way affect any Company's rights to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of the Restrictions, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants. In the event of any litigation between the parties under this Section
8, the court shall award reasonable attorneys fees to the prevailing party.
9. Confidential Information
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9.1 Definition. The term "Confidential Information" shall mean and include
any information, including a formula, pattern, compilation, program, source
code, device, method, technique, or process, that (i) derives independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (ii) that is the subject of
efforts that are reasonable under the circumstance to maintain its secrecy.
Information that may be included in Confidential Information includes matters of
a technical nature (including know-how, computer programs, software, patented as
unpatented technology, source-code, accounting methods, and documentation),
matters of a business nature (such as information about contract forms, costs,
profits, employees, promotional methods, markets, market or marketing plans,
sales, and client accounts), plans for further development, and any other
information meeting the definition of Confidential Information set forth above.
Confidential Information includes, without limitation, technology designs for
smoking oven system, smoked food processing techniques, recipes, and marketing
plans. Confidential information may also include any such information developed
by Employee for the Company while an employee of the Company. "Confidential
Information" does not include (i) information that is in the public domain at
the time the information is acquired by Employee, or (ii) information that later
becomes public through no act or omission of Employee or other person subject to
a duty to keep such information confidential.
9.2 Nondisclosure and Non-Use of Confidential Information. Employee agrees
that all files, records (including electronic or digitals records), documents,
and the like relating to such Confidential Information, whether prepared by him
or otherwise coming into his possession, shall remain the exclusive property of
the Company, and Employee hereby agrees to promptly disclose such Confidential
Information to the Company upon request and hereby assigns to the Company any
rights which he may acquire in any Confidential Information. Employee further
agrees not to disclose or use any Confidential Information, and to use his best
efforts to prevent the disclosure or use of any Confidential Information either
during the term of his employment or consultancy or at any time thereafter,
except as may be necessary in the ordinary course of performing his duties under
this Agreement. Upon termination of Employee's employment or consultancy with
the Company for any reason, Employee shall promptly deliver to the Company all
materials, documents, data, equipment, and other physical property of any nature
containing or pertaining to any Confidential Information, and Employee shall not
take from the Company's premises any such material or equipment or any
reproduction thereof without the written consent of the Company.
10. Inventions
10.1 Disclosure of Inventions. Employee hereby agrees that if he conceives,
learns, makes or first reduces to practice, either alone or jointly with others,
any "Employment Invention" (as defined in Section 10.3 below) during his
employment by the Company, either as an employee or as a consultant, he will
promptly disclose such Employment Invention to the Company or to any person
designated by it.
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10.2 Ownership, Assignment, Assistance, and Power of Attorney. All
Employment Inventions (as defined in Section 10.3 below) shall be the sole and
exclusive property of the Company, and the Company shall have the right to use
and to apply for patents, copyrights, or other statutory or common law
protection for such Employment Inventions in any country. Employee hereby
assigns to the Company any rights which he may acquire in such Employment
Inventions. Furthermore, Employee agrees to assist the Company in every proper
way at the Company's expense to obtain patents, copyrights, and other statutory
common law protections for such Employment Inventions in any country and to
enforce such rights from time to time. Specifically, Employee agrees to execute
all documents as the Company may desire for use in applying for and in obtaining
or enforcing such patents, copyrights, and other statutory or common law
protections together with any assignments thereof to the Company or to any
person designated by the Company. Employee's obligations under this Section 10
shall continue beyond the termination of his employment under this Agreement,
but the Company shall compensate Employee at a rate agreed upon by Employee and
the Company pursuant to negotiations in good faith after such termination for
the time which Employee actually spends at the Company's request in rendering
such assistance.
10.3 Employment Inventions. The definition of Employment Invention as used
in this Section 10 is as follows:
"Employment Invention" means any invention or part thereof conceived,
developed, reduced to practice, or created by an employee which is:
(a) conceived, developed, reduced to practice, or created by the
employee:
(i) within the scope of his employment;
(ii) on his employer's time; or
(iii) with the aid, assistance, or use of any of his employer's
property, equipment, facilities, supplies, resources, or intellectual
property;
(b) the result of any work, services, or duties performed by an
employee for his employer;
(c) related to the industry or trade of the employer; or
(d) related to the current or demonstrably anticipated business,
research, or development of the employer.
10.4 Exclusion of Prior Inventions. Exhibit A attached hereto is a complete
list by Employee of all inventions which Employee has conceived, learned, made
or first reduced to practice, either alone or jointly with others, prior to or
during his employment with the Company and which he desires to exclude from the
operation of this Agreement. If no inventions are listed on this Exhibit A,
Employee represents that he has made no such inventions at the time of signing
this Agreement. The Company hereby acknowledges and agrees that, for all
purposes of this Agreement, none of the inventions listed on Exhibit A shall be
treated as Employment Inventions hereunder.
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10.5 Inventions of Third Parties. Employee shall not disclose to the
Company, use in the course of his employment, or incorporate into the Company's
products or processes any confidential or proprietary information or inventions
that belong to a third party, unless the Company has received authorization from
such third party.
11. No Conflicts. Employee hereby represents that his performance of all the
terms of this Agreement and his work as an employee of the Company does not
breach any oral or written agreement which he has made prior to his employment
with the Company.
12. Equitable Remedies. Employee acknowledges and agrees that the breach or
threatened breach by him of certain provisions of this Agreement, including
without limitation Sections 8, 9, and 10 above, would cause irreparable harm to
the Company for which damages at law would be an inadequate remedy. Accordingly,
Employee hereby agrees that in any such instance the Company shall be entitled
to seek (without prior mediation or arbitration) injunctive or other equitable
relief in any state or federal court within or without the State of Nevada in
addition to any other remedy to which it may be entitled. Employee hereby
submits to the jurisdiction of any courts within the City of Reno in the State
of Nevada and agrees not to assert such venue is inconvenient.
13. Assignment. This Agreement is for the unique personal services of Employee
and is not assignable or delegable in whole or in part by Employee without the
consent of the Board. This Agreement may not be assigned or delegated in whole
or in part by the Company without the written consent of Employee; provided,
however, this Agreement may be assigned by the Company without Employee's prior
written consent if such assignment is made to an entity acquiring substantially
all of the business or assets of the Company.
14. Waiver or Modification. Any waiver, modification, or amendment of any
provision of this Agreement shall be effective only if in writing in a document
that specifically refers to this Agreement and such document is signed by the
parties hereto.
15. Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the parties hereto with respect to the subject
matter covered herein and supersedes all prior oral or written understandings
and agreements with respect thereto.
16. Severability. If any provision of this Agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining provisions
shall nevertheless remain in full force and effect.
17. Attorneys' Fees. Should Company or Employee default in any of the covenants
contained in this Agreement, or in the event a dispute shall arise as to the
meaning of any term of this Agreement, the defaulting or nonprevailing party
shall pay all costs and expenses, including reasonable attorneys' fees, that may
arise or accrue from enforcing this Agreement, securing an interpretation of any
provision of this Agreement, or in pursuing any remedy provided by applicable
law whether such remedy is pursued or interpretation is sought by the filing of
a lawsuit, an appeal, or otherwise.
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18. Confidentiality. Each of the parties acknowledges that the common shares of
the Company are registered under the Securities Exchange Act of 1934, as
amended, and a result, the Company may be required to, and hereby has
authorization to, file this Agreement or any amendment hereto with the
Securities and Exchange Commission without requesting confidential treatment for
any portion hereof.
19. Notices. Any notice required hereunder to be given by either party shall be
in writing and shall be delivered personally or sent by certified or registered
mail, postage prepaid, or by private courier, with written verification of
delivery, or by facsimile or other electronic transmission to the other party to
the address or facsimile number set forth below or to such other address or
facsimile number as either party may designate from time to time according to
this provision. A notice delivered personally or by facsimile or electronic
transmission shall be effective upon receipt. A notice delivered by mail or by
private courier shall be effective on the third day after the day of mailing:
(a) To Employee at: XXXXXX X. XXXXXXXX
000 Xxxx Xxxx Xx.
Xxxxx, XX 00000
Facsimile No: 000-000-0000
(b) To the Company at: SMOKY MARKET FOODS, INC.
000 Xxxxxxx Xx. Xxxxx 000
Xxxxx, XX 00000
Facsimile No: 000-000-0000
20. Disputes; Governing Law; Arbitration.
(a) Except as provided in Section 12 and Section 8.5, any dispute
concerning the interpretation or construction of this Agreement or his
employment or service with Company, shall be resolved by confidential mediation
or binding arbitration in [City, State]. The parties shall first attempt
mediation with a neutral mediator agreed upon by the parties. If mediation is
unsuccessful or if the parties are unable to agree upon a mediator, the dispute
shall be submitted to arbitration pursuant to the procedures of the American
Arbitration Association ("AAA") or other procedures agreed to by the parties.
All arbitration proceedings shall be conducted by a neutral arbitrator mutually
agreed upon by the parties from a list provided by AAA. The decision of the
arbitrator shall be final and binding on all parties. The costs of mediation and
arbitration shall be borne equally by the parties.
(b) This Agreement shall be construed in accordance with and governed by
the statutes and common law of the State of California. To the extent this
Agreement expressly permits any dispute to be resolved other than through
arbitration or mediation, the exclusive venue for any such action shall be the
state and federal courts located in Reno, Nevada, and the parties each hereby
submit to the jurisdiction of such courts for purposes of this Agreement.
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21. Counterparts; Facsimile. This Agreement may be executed in multiple
counterparts, all of which taken together shall form a single Agreement. A
facsimile copy of this Agreement or any counterpart thereto shall be valid as an
original.
[intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, Employee has signed this Executive Employment Agreement
personally and the Company has caused this Agreement to be executed by their
duly authorized representatives.
COMPANY:
SMOKY MAREKT FOODS, INC.
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx, an individual
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EXHIBIT A
PRIOR INVENTIONS AND TRADEMARKS
1. _________________
