EXECUTIVE CONSULTING AGREEMENT
Exhibit
10.16
THIS EXECUTIVE CONSULTING AGREEMENT
(this “Agreement”) is made
and entered into by and between Smoky Market Foods, Inc., a Nevada corporation
(the “Company”), and
Propulsion LLC (“Propulsion”) Xxxxxx
Xxxxxxxxxx (“Executive”),
effective as of March 25, 2010 (the “Effective
Date”).
Recitals
A. The
Company desires to retain Propulsion to provide the services of its consultant,
Xxxxxx Xxxxxxxxxx (“Executive”) to act as its Chief Marketing Officer on an
independent contractor basis, subject to the terms and conditions of this
Agreement.
B. Executive
is willing to be retained by the Company as its chief marketing officer on an
independent contractor basis, subject to the terms and conditions of this
Agreement.
Agreement
NOW, THEREFORE, in consideration of the
Company’s engagement of Executive, the covenants set forth herein, and for other
good and valuable consideration, the receipt, adequacy and legal sufficiency of
which are hereby acknowledged, the Company and Executive hereby agree as
follows:
1. Executive’s Engagement by the
Company
(a) Position and
Duties. Commencing as of the
Effective Date, the Company hereby retains Executive as its Chief Marketing
Officer to render such services and perform such duties as are assigned to
Executive from time to time by the Board or Chief Executive Officer of the
Company. Without limiting the foregoing, Executive’s duties shall
include efforts to define and develop the Company’s comprehensive branded
marketing plans, efforts to develop and implement business-to-business marketing
initiatives including, without limitation, the creation of corporate
affiliations for distribution, and capital generation activities for the
Company. In the performance of Executive’s duties, Executive shall
work directly with, and report to the Company’s Chief Executive Officer and
President.
(b) Efforts of
Executive. Executive shall dedicate such time to performing
the services under this Agreement as are reasonably required to accomplish the
services. The Company shall be entitled to all of the benefits,
profits, or other issues arising from or incident to all work, services, and
advice of Executive.
(c) Nature of
Engagement. Executive’s engagement with the Company shall
commence on the Effective Date and shall continue for a period of five (5) years
or until earlier terminated as provided herein (the “Term”). Upon
the expiration of the Term, this Agreement shall automatically renew for
successive three (3) year terms (“Renewal Terms”) unless terminated by either
party within sixty (60) days of the end of the Term or any Renewal Term, or
terminated as otherwise provided herein. Either Executive or the Company may
terminate this Agreement and the relationship contemplated hereby for any or no
reason, with or without cause, upon sixty (60) days advanced written notice to
the other party.
2. Compensation.
(a) Monthly
Compensation. In consideration for services rendered to the
Company as provided herein, the Company shall pay Executive a monthly salary at
the rate of Ten Thousand Dollars ($10,000.00) during the Term, payable in
accordance with the Company’s standard payroll practices in effect from time to
time.
(b) Signing
Bonus. The Company shall issue to Executive a bonus (the
“Signing
Bonus”) upon execution of this Agreement in the form of either (i) three
hundred fifty thousand (350,000) shares of the Company’s common stock or (ii)
warrants to purchase an equivalent amount of shares of the Company’s common
stock in the form of warrant attached hereto as Exhibit A (“Warrants”). Executive
shall provide written notice to the Company by the fifth day following the
execution of this Agreement as to whether the Signing Bonus shall be in the form
of shares of common stock or Warrants; if Executive shall not have provided such
written notice by the fifth day following the execution of this Agreement, the
Company shall have the sole option to determine the form of the Signing
Bonus.
(c) Additional
Compensation. As additional consideration for Executive’s
services to the Company, the Company agrees that it will grant to Executive the
following with respect to the Term:
(i) Within
forty-five (45) days of the end of each fiscal quarter, the Company shall pay to
Executive (A) cash consideration in an amount equal to two percent (2%) of
Internet Revenue (as defined herein) earned by the Company for that
corresponding fiscal quarter; (B) cash consideration in an amount equal to one
half percent (0.5%) of BarBQ Station Revenue (as defined herein) earned by the
Company for that corresponding fiscal quarter; and (C) cash consideration in an
amount equal to one percent (1%) of the Retail Revenue (as defined herein)
earned by the Company for that corresponding fiscal quarter.
(ii) Within
forty-five (45) days of the end of each of the Company’s first three fiscal
quarters, and by the 15th day of the third month following the end of the
Company’s fourth fiscal quarter, the Company shall issue to Executive “Equity Compensation”
with a Fair Market Value (as defined below) equal to: (A) three and
one half percent (3.5%) of Internet Revenue earned by the Company for that
corresponding fiscal quarter; (B) one half percent (0.5%) of BarBQ Station
Revenue earned by the Company for that corresponding fiscal quarter; and (C) one
percent (1%) of the Retail Revenue earned by the Company for that corresponding
fiscal quarter. The Equity compensation shall be in the form of
either shares of the Company’s common stock or warrants to purchase shares of
the Company’s common stock substantially in the form of warrant attached hereto
as Exhibit A
(“Warrants”). Executive
shall provide written notice to the Company by the thirtieth day following the
end of each fiscal quarter as to whether the Equity Compensation described in
this subsection shall be in the form of shares of common stock or Warrants; if
Executive shall not have provided such written notice by the thirtieth day
following the end of a fiscal quarter, the Company shall have the sole option to
determine the form of the Equity Compensation. If any compensation to
be issued under this Agreement is in the form of shares of common stock, the
“Fair Market
Value” of the shares of the common stock shall be the average of the
closing price of the common stock for the twenty trading days preceding the date
of issuance. If the Equity Compensation to be issued under this
subsection is in the form of a Warrant, the “Fair Market Value” of
the Warrants shall be determined using in accordance with Black-Scholes
valuation method (using assumption consistent with those used by the Company in
the preparation of its financial statements in accordance with generally
accepted accounting principles) as of the date of the issuance, and the exercise
price of the Warrants shall be the closing price of the common stock on, or on
the trading date immediately prior, to the date of issuance, as determined by
the Company.
(iii) For
purposes of this Agreement:
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(A)
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“Internet
Revenue” shall mean all revenue generated by the Company during a
relevant period from sales and distribution of Company products through
methods employing use of the Internet (which includes direct sales and
marketing), less all applicable sales coupons and other promotional
discounts to such sales.
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(B)
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“BarBQ Station
Revenue” shall mean all revenue generated by the Company during a
relevant period from sales of Company products through its “BarBQ
Station”-branded restaurants and other facilities, less all applicable
sales coupons and other promotional discounts to such
sales.
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(C)
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“Retail Revenue”
shall mean all revenue generated by the Company during a relevant period
from sales of Company products through retail channels (including
supermarkets and other retail outlets), including all sales of kosher
products during such period, less all applicable sales coupons and other
promotional discounts to such
sales.
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(d) Compensation Following
Termination.
(i) Following
the termination of this Agreement, Executive shall be entitled to receive the
following as compensation (the “Severance
Compensation”), subject to the terms and conditions contained in this
subsection and Executive’s ongoing compliance with Sections 4(c), 5,
6(a) and 7 of this Agreement:
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(A)
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An
amount equal to the aggregate of (1) three and one half percent (3.5%) of
the total Internet Revenue, (2) one quarter of one percent (0.25%) of the
total BarBQ Station Revenue, and (3) one half of one percent (0.5%) of the
total Retail Revenue received by the Company during the 1st
through 4th
fiscal quarters following the fiscal quarter in which the termination of
this Agreement occurred, provided that Executive completed one full year
of service under this Agreement prior to
termination;
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(B)
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An
amount equal to the aggregate of (1) two and one half percent (2.5%) of
the total Internet Revenue, (2) one quarter of one percent (0.25%) of the
total BarBQ Station Revenue, and (3) one half of one percent (0.5%) of the
total Retail Revenue received by the Company during the 5th
through 8th
fiscal quarters following the fiscal quarter in which the termination of
this Agreement occurred, provided that Executive completed two full years
of service under this Agreement prior to
termination;
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(C)
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An
amount equal to the aggregate of (1) one percent (1%) of the total
Internet Revenue, (2) one quarter of one percent (0.25%) of the total
BarBQ Station Revenue, and (3) one half of one percent (0.5%) of the total
Retail Revenue received by the Company during the 9th
through 12th
fiscal quarters following the fiscal quarter in which the termination of
this Agreement occurred, provided that Executive completed three full
years of service under this Agreement prior to
termination;
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(D)
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An
amount equal to the aggregate of (1) one percent (1%) of the total
Internet Revenue, (2) one quarter of one percent (0.25%) of the total
BarBQ Station Revenue, and (3) one half of one percent (0.5%) of the total
Retail Revenue received by the Company during the 13th
through 16th
fiscal quarters following the fiscal quarter in which the termination of
this Agreement occurred, provided that Executive completed four full years
of service under this Agreement prior to
termination;
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(E)
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An
amount equal to the aggregate of (1) one percent (1%) of the total
Internet Revenue, (2) one quarter of one percent (0.25%) of the total
BarBQ Station Revenue, and (3) one half of one percent (0.5%) of the total
Retail Revenue received by the Company during the 17th
through 20th
fiscal quarters following the fiscal quarter in which the termination of
this Agreement occurred, provided that Executive completed five full years
of service under this Agreement prior to
termination.
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(ii) The
Severance Compensation shall be payable to Executive on the ninetieth (90th) day
following the end of the four-quarter period with respect to which the amount
owing to Executive is determined.
(iii) At
the option of Executive, the Severance Compensation shall be either in the form
of cash or in the form of shares of the Company’s common stock (the “Severance
Shares”). Executive shall provide written notice to the
Company by the thirtieth day following the end of each four-quarter period with
respect to which Severance Compensation is due as to whether the Severance
Compensation described in this subsection shall be in the form of cash or shares
of Company common stock; if Executive shall not have provided such written
notice by the thirtieth day following the end of such four-quarter period, the
Company shall have the sole option to determine the form of the Severance
Compensation. If the Severance Compensation to be issued under this
subsection is in the form of shares of common stock, the price at which the
Company’s shares of stock shall be valued for purposes of determining the number
of shares to be issued to Executive hereunder shall be the Fair Market Value of
the shares on the issue date.
(e) Restriction on
Transfer. The Company’s obligation to issue the Signing Bonus,
the Equity Compensation, or any Severance Shares upon the conditions set forth
herein is personal as between Executive and the Company, and such right shall
not be transferred, encumbered or otherwise disposed of in any
manner. Following grant, the Equity Compensation shall remain subject
to all restrictions on transfer and other provisions of the Company’s governing
documents, as amended from time to time, and all applicable federal and state
laws.
(f) Investment
Representations. In connection with the grant of the Signing
Bonus, the Equity Compensation, and any Severance Shares (including any shares
issuable upon the exercise of any Warrants including in the foregoing,
collectively, the “Equity Shares”), the
Executive represents to the Company the following (and Executive agrees to sign
a separate document reiterating substantially similar representations with
respect to each issuance of Equity Shares if requested by the
Company):
(i) Executive
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in
the Equity Shares and making an informed investment decision. Without limiting
the foregoing, Executive is an “accredited investor” as such term is defined in
Rule 501(a) promulgated under the Securities Act of 1933, as amended (the
“Securities
Act”).
(ii) Executive
is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to accept the Equity
Shares. Without limiting the generality of the foregoing,
Executive has had an opportunity to review all of the Forms 10-K, 10-Q and 8-K
filed by the Company with the Securities and Exchange Commission (the “SEC”)
during the one-year period preceding the date of this representation and has had
the opportunity to ask, and has received satisfactory answer, to any questions
executive has with respect to the Company.
(iii) Executive
is accepting the issuance of the Equity Shares in exchange for services rendered
by Executive for Executive’s own account only and not with a view to, or for
resale in connection with, any “distribution” thereof within the meaning of the
Securities Act.
(iv) Executive
understands that the Equity Shares will not be registered under the Securities
Act by reason of a specific exemption therefrom, which exemption will depend
upon, among other things, the bona fide nature of Executive’s intent as
expressed herein. Executive further acknowledges and understands that
(i) the Equity Shares must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available; (ii) the Company is under no obligation to register the Equity
Shares; and (iii) the certificate evidencing the Equity Shares, if any, will be
imprinted with a legend which prohibits the transfer of the Equity Shares unless
they are registered or such registration is not required in the option of
counsel satisfactory to the Company.
(g) Certificate
Legends. The certificates evidencing any shares of common
stock issued in connection with the Equity Shares (including upon the exercise
of any Warrants) shall be endorsed with the following legends (or with legend of
similar import):
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THE SHARES OF THE COMPANY
EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR IN ANY STATE IN RELIANCE UPON EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND VARIOUS APPLICABLE STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR ASSIGNED OR A SECURITY INTEREST CREATED THEREIN
UNLESS THE PURCHASER, TRANSFEREE, ASSIGNEE, PLEDGEE OR HOLDER OF SUCH
SECURITY INTEREST COMPLIES WITH ALL STATE AND FEDERAL SECURITIES LAWS
(I.E., SUCH SHARES ARE REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE THEREUNDER) AND UNLESS THE SELLER, TRANSFEROR,
ASSIGNOR, PLEDGOR OR GRANTOR OF SUCH SECURITY INTEREST PROVIDES AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE TRANSACTION
CONTEMPLATED WOULD NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS.
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Such shares shall also include any
legend required by any applicable state securities law.
(h) Adjustment for Equity
Split. All references to the number of shares of common stock
and the purchase price of the Equity Shares in this Agreement shall be
appropriately adjusted to reflect any stock split, reverse stock split or stock
dividend or other similar change in the capital stock of the Company, which may
be made by the Company after the date of this Agreement.
(i) Tax
Consequences. Executive has reviewed with his tax advisor the
federal, state, local and foreign tax consequences of this Agreement and the
transactions contemplated by this Agreement. Executive is relying
solely on his advisor and not on any statements or representations of the
Company or any of its agents.
3. Acknowledgement. Executive
acknowledges that: (a) Executive has read and understands the terms of this
Agreement and has had the opportunity, if he so desires, to consult with
independent legal counsel; and (b) Executive’s efforts will contribute to the
goodwill of the Company. Executive also acknowledges that the Company
has spent substantial time, effort, and money to develop the Company’s goodwill,
client, customer and vendor relations, Confidential Information, and
business. Executive further acknowledges that any new business or
improvement in customer, client, and/or vendor relations attributable to
Executive during his engagement by or association with the Company is for the
sole benefit of the Company.
4. Confidential and Proprietary
Information.
(a) Definition of Confidential
Information. For purposes of this Agreement, “Confidential
Information” means all information and any idea in whatever form,
tangible or intangible, recorded or otherwise, and without regard to the form of
recordation or the state of completion, whether disclosed to or learned or
developed by Executive, pertaining in any manner to the business of the Company,
any parent(s) or stockholders, and any present or future direct or indirect
affiliations or subsidiaries of such entities (hereinafter, included in the
reference to “Company”, if the context permits) including without limitation:
(i) customer lists, customer prospects, business development information, client
data proprietary, financial standing, investment holdings and other personal
financial data; (ii) company lists, profiles and reports; (iii) training and
research materials and methodologies; (iv) structure, operations, pricing,
financial and personnel information; (v) information systems design and
procedures; (vi) computer technology designs, hardware configuration systems,
and software designs and implementations; (vii) information databases, devices,
data processing programs, interactive procedures, navigation, functionality, web
site design, tests, analysis and studies developed by or for the benefit of the
Company; (viii) plans, designs, inventions, formulas, research and technology
developed by or for the benefit of the Company; (ix) business information and
business secrets of the Company and its clients; (x) trade secrets of the
Company; (xi) plans, prospects, policies, practices, and procedures of the
Company which are not generally known in the industry; and (xii) all other
proprietary and confidential information of every nature and source.
Confidential Information does not include information which: (A) is or becomes
generally available to the public through no breach of this Agreement or any
other agreement to which the Company is a party; (B) was received from a third
party free to disclose such information without restriction; (C) is approved for
release in writing by the Chief Executive Officer of the Company, subject to
whatever conditions are imposed by such person; or (D) is required by law or
regulation to be disclosed, but only to the extent necessary and only for the
purpose
required.
(b) Property of the
Company. Executive hereby acknowledges, understands and agrees
that all Confidential Information is the exclusive and confidential property of
the Company which shall at all times be regarded, treated and protected as such
in accordance with this Section 4 and Section 5 hereof.
(c) Covenants of
Executive. As a consequence of Executive’s acquisition or
anticipated acquisition of Confidential Information, Executive shall occupy a
position of trust and confidence with respect to the affairs and business of the
Company. As a material term of this Agreement and to protect the
goodwill, the Confidential Information, and the business of the Company, and in
view of the foregoing and of the consideration to be provided to Executive,
Executive agrees that it is reasonable and necessary that Executive agree, and
Executive hereby does agree that Executive shall not during or after the term of
this Agreement, without express prior written consent of the Chief Executive
Officer of the Company:
(i) directly
or indirectly, intentionally or unintentionally, reveal, disclose, furnish, make
accessible, or disseminate any of Company’s Confidential Information, except
only as may be expressly required in performing services for Company;
or
(ii) use
or exploit any of Company’s Confidential Information for the personal or
financial gain or benefit of Executive or of any other individual, firm,
corporation, or entity or for any other purpose.
5. Exclusive Property of
Company. Upon ceasing his engagement by or association with
the Company, Executive shall immediately return to the Company, and shall have
no right to use:
(a) Confidential
Information or any documents, drawings, reports, correspondence, records,
procedures, books, manuals, notebooks, files, data, forms, materials, supplies,
computer disks or other computer-stored information, computer programs,
materials, and/or other documentation (and copies thereof) regarding or relating
to Confidential Information in Executive’s possession, custody, or control,
irrespective of whether such information and documentation was prepared or
compiled by Executive, Company, or Company’s other employees or independent
contractors. Executive agrees that Executive will not retain any copies of any
of the above-described items or information; or
(b) all
equipment and tangible personal property entrusted to Executive by
Company. Executive acknowledges that all such Confidential
Information, documentation, equipment, and tangible personal property described
above is and shall remain the sole and exclusive property of
Company.
6. Non-Solicitation.
(a) Non-Solicitation. Executive
acknowledges the character of Company’s business and the substantial amount of
time, money, and effort that Company has spent and will spend in recruitment of
clients, customers and/or accounts. As a material term of this Agreement and to
protect the goodwill, the Confidential Information, and the business of Company,
Executive covenants that, during the Covenant Period, as defined below,
Executive shall not, either individually or on behalf of or with any other
person or entity, directly or indirectly, (i) solicit or otherwise attempt to
sell products or services that are the same as or similar to the business
engaged in by Company to any individual or entity that was a current or former
customer, client, and/or account of Company at the time of Executive’s
engagement by the Company or during the one (1) year period immediately
preceding the termination of Executive’s engagement; (ii) solicit or otherwise
deal with any customers, clients, vendors, and/or accounts of Company in any
manner designed to (or that reasonably could) divert business from Company;
and/or (iii) solicit or otherwise induce any employee or independent contractor
of Company to terminate his or her employment or engagement with
Company.
(b) For
purposes of this Agreement, “Covenant Period”
means the period beginning on the earlier of the date of Executive’s acceptance
of an offer of engagement by or association with Company or the date of this
Agreement and continuing for one (1) year after the later of the date of the
termination of Executive’s engagement by or association with
Company.
7. Work Product
Agreement.
(a) For
purposes of this Section 7, (i) “Work Product” means
any and all improvements; designs, original works of authorship; derivative
works; processes; trade secrets; know-how; technology; ideas; websites; and/or
other intellectual property or proprietary information rights or any part of any
of the foregoing, conceived, developed, authored, invented, or otherwise created
by Executive within the scope of Executive’s engagement, on the Company’s time,
with the aid or assistance or use of any of the Company’s property or equipment,
as the result of any services or duties performed by Executive for the Company,
or related to the current or demonstrably anticipated business, research, or
development of the Company; and (ii) “Moral Rights” means
any rights to claim authorship of any Work Product, to object to or prevent the
modification of any Work Product, or to withdraw from, circulate, or control the
publication or distribution of any Work Product, and any similar right, existing
under any statutory, administrative, judicial, or other law, regulation, or rule
of any country in the world, or under any treaty, convention, agreement,
protocol, policy, or practice, regardless of whether or not such right is
denominated or generally referred to as a ‘moral right.’
(b) All
Work Product and all results and proceeds of Executive’s services will be deemed
“Works for Hire.” Executive hereby irrevocably grants, conveys, and
assigns to Company all right, title, and interest in and to (i) any and all Work
Product; (ii) any and all copyrights, trademarks, service marks, patents, patent
rights, and other intellectual property and proprietary information rights with
respect thereto; (iii) any and all modifications, renewals, and extensions
thereof; (iv) any and all existing and future rights, applications,
continuations, and registrations with respect thereto; and (v) any and all Moral
Rights (in the United States and worldwide), and hereby forever waives and
agrees never to assert any and all Moral Rights, or any other rights contrary to
this provision, that Executive may have in or with respect to any Work Product,
even after termination of Executive’s engagement by the Company for any
reason.
(c) Executive
agrees: (i) to promptly and fully inform Company of any Work Product and to do
so in writing if so requested by Company; (ii) to keep and maintain complete and
accurate contemporaneous records of all Work Product; (iii) to assist Company in
every way proper to obtain for Company and to enforce patents, copyrights, mask
work rights, trade secret rights, and other legal protections for any and all
Executive Inventions; and (iv) to acknowledge and deliver promptly to Company
(without charge to Company but at the expense of Company) such written
instruments and to do such other acts as may be necessary in the opinion of
Company to obtain and maintain letters patent, copyrights, mask work rights,
trade secrets, and other legal protections necessary or desirable to vest the
entire right and title in any Work Product to Company.
8. Reformation. The
Company intends to restrict Executive under this Agreement only to the extent
necessary to protect Company’s legitimate business interests. The
Company and Executive agree that the scope, duration, and geographic area
provisions hereof are reasonable. In the event a court of competent
jurisdiction concludes that any provision of this Agreement is too restrictive,
such provision(s) shall nevertheless be valid and enforceable to the fullest
extent permitted by such court, and such provision(s) shall be reformed to the
maximum scope, time, or geographic limitations determined appropriate by such
court. If a court of competent jurisdiction determines that any portion of
this Agreement is invalid or unenforceable, such determination shall not affect
the validity or enforceability of the remaining portions of this
Agreement.
9. Remedies.
(a) Company
and Executive intend that the Executive’s covenants are separate and independent
of any covenants of Company contained herein or otherwise, and any breach by
Company shall not justify or excuse any breach by Executive. In the
event of an actual breach of Sections 4(c), 5, 6(a), or 7 above,
Executive specifically acknowledges that Company will incur incalculable and
irreparable damage for which Company has no adequate remedy at
law. Therefore, Executive acknowledges that the Company shall be
entitled to ex parte injunctive relief, both preliminary and permanent,
immediately and permanently restraining Executive from such continuing or
threatened breach. Executive hereby expressly waives any and all
right to prior notice or to security in connection with temporary injunctive
relief on behalf of the Company and to security in connection with permanent
injunctive relief on behalf of the Company. Executive shall also
remain liable for any damages sustained by reason of any actual or threatened
breach by Executive of Sections 4(c), 5, 6(a), or 7 above. The exercise of one
or more of the rights or remedies provided by this Agreement or otherwise shall
not preclude the exercise of any other rights also provided. In the
event of a termination of this Agreement due to a breach of its terms by the
Company, notwithstanding anything else provided in this Agreement, the Executive
shall immediately be released from the covenant not to compete.
(b) In
addition, Executive acknowledges and agrees that, in addition to any other
remedies permitted hereunder or by law, in the event of an actual or threatened
breach of Sections 4(c), 5, 6(a), or 7 above, the Company shall be permitted to
terminate any and all payments of the Severance Compensation.
10. Rights of Other
Persons. Executive shall not disclose to Company, or use in the
performance of his work or responsibilities for Company, any proprietary or
confidential information, any trade secret, or any other intellectual property
of (a) Executive, (b) any former employer of Executive, or (c) any other
individual or entity, unless Company has received written authorization from
Executive or such former employer or other individual or entity and Company has
instructed Executive in writing to do so. The provisions of this
Section 10 are not intended to create any rights as an intended or third-party
beneficiary for any third party.
11. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof and supersedes all
negotiations, representations, prior discussions, and preliminary agreements
between the parties relating to the subject matter hereof. No
promise, representation, warranty, or covenant not included in this Agreement
has been or is relied upon by either party.
(b) Notices. In
the event of a breach of any of the terms of this Agreement, the Party alleging
the breach shall provide the other Party with written notice of the breach
(“Notice of Breach”). The Notice of Breach shall detail the alleged
breach and the Party receiving the Notice of Breach shall cure the alleged
breach or provide evidence that they are not in breach within ten (10) days of
receipt of the Notice of Breach.
(c) Attorney
Fees. If a legal action or other proceeding is brought by the
Company or Executive for enforcement of this Agreement, the party that prevails
shall be entitled to recover reasonable attorney’s fees, costs and expenses
incurred, in addition to any other remedies.
(d) Binding
Effect. This Agreement shall inure to and bind the heirs,
devisees, executors, administrators, personal representatives, successors and
assigns, as applicable, of the respective parties hereto; provided, however,
that nothing herein shall be construed to permit the sale or assignment of
Executive’s interest and/or obligations hereunder.
(e) Waiver. Any
waiver by any party hereto of any breach of any kind or character whatsoever by
any other party, whether such waiver be direct or implied, shall not be
construed as a continuing waiver of, or consent to, any subsequent breach of
this Agreement on the part of the other party. In addition, no course
of dealing between the parties, nor any delay in exercising any rights or
remedies hereunder or otherwise, shall operate as a waiver of any of the rights
or remedies of the parties.
(f)
Severability. The
provisions of this Agreement are severable. If any part of this
Agreement is found to be unenforceable, the other provisions shall remain fully
valid and enforceable. It is the intention and agreement of the
parties that all of the terms and conditions hereof be enforced to the fullest
extent permitted by law. This Agreement shall inure to and bind the
heirs, devisees, executors, administrators, personal representatives,
successors, and assigns (as applicable) of the respective parties
hereto.
(g) Assignment. Executive
may not assign this Agreement, or his duties and obligations hereunder, to any
individual or entity. Company may assign this Agreement, and
obligations and duties hereunder, to any purchaser of Company.
(h) Taxes. In
conformity with Executive’s independent contractor status and without limiting
any of the foregoing, Consultant understands that, unless the Company determines
that such deduction or withholding is required by law, no deduction or
withholding for taxes or contributions of any kind shall be made by the Company
with respect to compensation paid to Executive. Executive agrees to
accept exclusive liability for the payment of all taxes or contributions for
unemployment insurance, pensions or annuities, social security payments or
otherwise, which are measured by the compensation paid to Executive, and to
reimburse and indemnify the Company for any such taxes or contributions or
penalties which the Company may be compelled to pay. Consultant also
agrees to take all action and comply with all applicable administrative
regulations necessary for the payment by Consultant of such taxes and
contributions. Notwithstanding the foregoing, to the extent that the
Company determines in good faith and any deduction or withholding is required by
law, (i) the Company is authorized to withhold from all payments, benefits, and
remuneration provided to Executive under this Agreement or otherwise, and (ii)
with respect to any equity compensation, Executive agrees to remit to the
Company upon request any amounts the Company determines it is required to
withhold under governing laws upon request and as a condition to the Company’s
obligation to issue such equity compensation.
(i)
Amendment. Notwithstanding
any statute or case law to the contrary, this Agreement may not be modified
except by a written instrument signed by each of the parties, whether or not
such modification is supported by separate consideration.
(j)
Governing
Law. Executive acknowledges and agrees that, regardless of any
location in which Executive resides during the term of this Agreement,
Executive’s service to the Company takes place in New York and this Agreement
and all terms and provisions herein shall be interpreted, construed, and
enforced in accordance with the laws of the State of New York, without giving
effect to any conflict of law provisions.
(k) Waiver of Jury
Trial. THE PARTIES EACH HEREBY IRREVOCABLY WAIVE THE RIGHT TO
A TRIAL BY JURY IN ANY AND ALL ACTIONS OR PROCEEDINGS BETWEEN THEM OR THEIR
RESPECTIVE HEIRS OR ASSIGNS BROUGHT WITH RESPECT TO ANY PROVISION OF THIS
AGREEMENT OR THE ENFORCEABILITY THEREOF, OR THAT RELATES IN ANY RESPECT TO THE
EMPLOYMENT RELATIONSHIP BETWEEN THE EXECUTIVE AND THE COMPANY OR THE TERMINATION
OF THAT EMPLOYMENT.
[Remainder of page intentionally left
blank; signature page follows]
BY
SIGNING BELOW, EACH OF THE PARTIES HERETO CERTIFIES THAT IT HAS CAREFULLY READ
AND UNDERSTANDS ALL OF THE TERMS OF THIS AGREEMENT, HAS HAD ALL QUESTIONS
ADEQUATELY ANSWERED, AND VOLUNTARILY AGREES TO BE BOUND BY THIS
AGREEMENT.
“EXECUTIVE”
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___________________________________________
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Date:
__________________
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Xxxxxx
Xxxxxxxxxx, an individual
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“COMPANY”
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Smoky
Market Foods, Inc.
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a
Nevada corporation
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By:
/s/ Xxxxx
Xxxxxxxx
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Date:
March
[ ], 2010
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Its:
President
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EXHIBIT
A
FORM OF
SMOKY MARKET FOODS, INC. WARRANT
[see attached]
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. THIS
WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO
RESTRICTIONS ON RESALE AND MAY NOT BE RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
Warrant
Smoky
Market Foods, Inc.
Issue
Date: __________
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________
Shares of Common Stock
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Warrant
No. ___
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This certifies that __________ or its permitted
transferee (such person or any such permitted transferee is sometimes herein
called the “Holder”) is entitled
to purchase from Smoky Market Foods, Inc., a Nevada corporation (the “Company”), at the
price and during the period as hereinafter specified, up to ________ shares (the
“Shares”) of
common stock, $.001 par value of the Company (the “Common Stock”), at a
purchase price of $_____ per share, subject to adjustment as described below (as
so adjusted from time to time, the “Exercise Price”), at
any time until the Expiration Date (as defined below).
1. Exercise.
The rights represented by this Warrant (this “Warrant”) shall be
exercisable at the Exercise Price and during the period commencing on the Issue
Date and continuing until the five-year anniversary of the Issue Date (the
“Expiration
Date”). After the Expiration Date, the Holder shall have no
right to purchase all or any portion of the Shares hereunder.
2. Payment
for Shares; Issuance of Certificates; Net Exercise.
(a) The rights represented
by the Warrant may be exercised at any time within the periods above specified,
in whole or in part, by (i) the surrender of the Warrant (with the purchase form
at the end hereof properly executed) at the principal executive office of the
Company (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the
books of the Company) and (ii) payment to the Company of the Exercise Price for
the number of Shares specified in the above-mentioned purchase form together
with applicable stock transfer taxes, if any. The Warrant shall be deemed to
have been exercised, in whole or in part to the extent specified, immediately
prior to the close of business on the date the Warrant is surrendered and
payment is made in accordance with the foregoing provisions of this Section 2,
and the person or persons in whose name or names the certificates for the Shares
shall be issuable upon such exercise shall become the holder or holders of
record of such Shares at that time and date. The Shares and the certificates for
the Shares so purchased shall be delivered to the Holder within a reasonable
time, not exceeding five (5) business days, after the rights represented by this
Warrant shall have been so exercised.
(b) Notwithstanding anything to the
contrary contained in Section 2(a), the Holder may elect to exercise this
Warrant in whole or in part on a “cashless exercise basis” by receiving Shares
equal to the value (as determined below) of this Warrant, or any part hereof,
upon surrender of the Warrant at the principal office of the Company together
with notice of such election in which event the Company shall issue to the
Holder a number of Shares computed using the following formula:
X = Y(A-B)
A
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Where:
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X
= the number of Shares to be issued to the
Holder;
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Y =
the number of Shares issuable upon exercise of this Warrant or, if only a
portion of this Warrant is being exercised, the portion of this Warrant
being canceled (at the date of such
calculation);
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A =
the fair market value of one share of Common Stock (at the date of such
calculation); and
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B =
the Exercise Price (as adjusted to the date of such
calculation).
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For the
purpose of any computation under this Subsection 2(b), the fair market value per
share of Common Stock at any date shall be deemed to be the Closing Price (as
defined below) of the Common Stock on the Trading Day immediately preceding the
date as of which the fair market value is being determined, provided that if the Common
Stock is not then listed or quoted on any market or exchange, then the fair
market value shall be the average of the closing bid prices for the Common Stock
on the OTC Bulletin Board, or, if such is not available, the Pink Sheets LLC, or
otherwise the average of the closing bid prices for the Common Stock quoted by
two market-makers of the Common Stock, or otherwise such fair market value shall
be determined in good faith by the Company and the Holder. “Trading Day” shall
mean any day on which the principal United States securities exchange or trading
market on which the Common Stock are listed, quoted or traded (the “Principal Market”) is
open for trading. “Closing Price” shall
mean the average of the last sale prices for the Common Stock on the Principal
Market for the ten Trading Days previous to the date of
determination.
3. Transfer. (a) Any
transfer of this Warrant shall be effected by the Holder by (i) executing the
form of assignment at the end hereof and (ii) surrendering the Warrant for
cancellation at the office or agency of the Company referred to in Section 2
hereof, accompanied by (y) a certificate (signed by an officer of the Holder, or
other authorized representative reasonably satisfactory to the Company, if the
Holder is an entity) stating that each transferee is a permitted transferee
under this Section 3; and, if applicable, (z) an opinion of counsel, reasonably
satisfactory in form and substance to the Company, to the effect that the Shares
or the Warrant, as the case may be, may be sold or otherwise transferred without
registration under the Securities Act of 1933, as amended (the “Act”). Upon
any transfer of this Warrant or any part thereof in accordance with the first
sentence of this Section 3(a), the Company shall issue, in the name or names
specified by the Holder (including the Holder), a new Warrant or Warrants of
like tenor (including all substantive provisions hereof) and representing in the
aggregate rights to purchase the same number of Shares as are purchasable
hereunder at such time.
(b) Any
attempted transfer of this Warrant or any part thereof in violation of this
Section 3 shall be null and void ab initio.
(c) This
Warrant may not be exercised and neither this Warrant nor any of the Shares, nor
any interest in either, may be offered, sold, assigned, pledged, hypothecated,
encumbered or in any other manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws and the terms and conditions hereof. Each Warrant
shall bear a legend in substantially the same form as the legend set forth on
the first page of this Warrant. Each certificate for Shares issued
upon exercise of this Warrant, unless at the time of exercise such Shares are
acquired pursuant to a registration statement that has been declared effective
under the Act and applicable blue sky laws, shall bear a legend substantially in
the following form:
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THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. SMOKY MARKET
FOODS, INC. MAY REQUIRE AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
THAT A PROPOSED TRANSFER OR SALE IS IN COMPLIANCE WITH THE
ACT.
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Any
certificate for any Shares issued at any time in exchange or substitution for
any certificate for any Shares bearing such legend (except a new certificate for
any Shares issued after the acquisition of such Shares pursuant to a
registration statement that has been declared effective under the Act) shall
also bear such legend unless, in the opinion of counsel for the Company, the
Shares represented thereby need no longer be subject to the restriction
contained herein. The provisions of this Section 3(c) shall be
binding upon all subsequent holders of certificates for Shares bearing the above
legend and all subsequent holders of this Warrant, if any.
4. Shares to
be Fully Paid. The Company covenants and agrees that all
Shares which may be purchased hereunder will, upon issuance and delivery against
payment therefor of the requisite purchase price, be duly and validly issued,
fully paid and nonassessable.
5. No Voting
or Dividend Rights. The Warrant shall not entitle the Holder to any
voting rights or any other rights, including without limitation notice of
meetings of other actions or receipt of dividends or other distributions, as a
stockholder of the Company.
6. Adjustment
of Exercise Price. The Exercise Price in effect at the time and the
number and kind of securities purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the happening of certain
events as follows:
(a) In
case the Company shall (i) declare a dividend or make a distribution on its
outstanding Common Stock in Common Stock, (ii) subdivide or reclassify its
outstanding Common Stock into a greater number of shares, (iii) combine or
reclassify its outstanding Common Stock into a smaller number of shares, or (iv)
enter into any transaction whereby the outstanding Common Stock of the Company
are at any time changed into or exchanged for a different number or kind of
shares or other securities of the Company or of another corporation through
reorganization, merger, consolidation, liquidation or recapitalization, then
appropriate adjustments in the number of Shares (or other securities for which
such Shares have previously been exchanged or converted) subject to this Warrant
shall be made and the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination, reclassification, reorganization, merger, consolidation,
liquidation or recapitalization shall be proportionately adjusted so that the
Holder of this Warrant exercised after such date shall be entitled to receive
the aggregate number and kind of shares or other securities which, if this
Warrant had been exercised by such Holder immediately prior to such date, the
Holder would have been entitled to receive upon such dividend, distribution,
subdivision, combination, reclassification, reorganization, merger,
consolidation, liquidation or recapitalization. For example, if the Company
declares a 2 for 1 stock subdivision (forward split) and the Exercise Price
hereof immediately prior to such event was $7.00 per Share and the number of
Shares issuable upon exercise of this Warrant was 85,500, the adjusted Exercise
Price immediately after such event would be $3.50 per Share and the adjusted
number of Shares issuable upon exercise of this Warrant would be 171,000. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) In
the event that at any time, as a result of an adjustment made pursuant to the
provisions of this Section 8, the Holder of the Warrant thereafter shall become
entitled to receive any shares of the Company other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of the
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in Section 8(a) above.
7. Governing
Law. This Agreement shall be governed by and in accordance with the
laws of the State of Nevada without regard to conflicts of laws principles
thereof.
8. Binding
Effect on Successors. In case of any consolidation of the Company
with, or merger of the Company into, any other entity, or in case of any sale or
conveyance of all or substantially all of the assets of the Company other than
in connection with a plan of complete liquidation of the Company at any time
prior to the Expiration Date, then as a condition of such consolidation, merger
or sale or conveyance, the Company shall give written notice of consolidation,
merger, sale or conveyance to the Holder and, from and after the effective date
of such consolidation, merger, sale or conveyance the Warrant shall represent
only the right to receive the consideration that would have been issuable in
respect of the Shares underlying the Warrant in such consolidation, merger, sale
or conveyance had the Warrant been exercised in full immediately prior to such
effective time and the Holder shall have no further rights under this Warrant
other than the right to receive such consideration.
9. Fractional
Shares. No fractional shares shall be issued upon exercise of
this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the holder entitled to such fraction a sum in cash equal to such
fraction multiplied by the then effective Exercise Price.
10. Lost
Warrants. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon receipt of an affidavit
of loss and indemnity reasonably satisfactory to the Company, or in the case of
any such mutilation upon surrender and cancellation of such Warrant, the
Company, at its expense, will make and deliver a new Warrant, of like tenor, in
lieu of the lost, stolen, destroyed or mutilated Warrant.
11. Headings. The
headings of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant.
12. Modification
and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is
sought.
IN WITNESS WHEREOF, the Company has
caused this Warrant to be signed by its duly authorized officer.
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Smoky
Market Foods, Inc.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Xxxxxx
Xxxxxxxx, Chief Executive Officer
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PURCHASE
FORM
(To be
signed only upon exercise of Warrant)
The
undersigned, the holder of the foregoing Warrant, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _______________ shares of Common Stock, par value $0.001 per share
(the “Shares”),
of SMOKY MARKET FOODS, INC. and tenders herewith payment of the aggregate
Exercise Price in respect of the Shares in full, in the amount of $_________ and
requests that the certificates for the Shares be issued in the name(s) of, and
delivered to _________________, whose address(es) is (are):
Dated: __________________________
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By:_________________________
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___________________________
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___________________________
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___________________________
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Address
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TRANSFER
FORM
(To be
signed only upon transfer of Warrant)
For value
received, the undersigned hereby sells, assigns, and transfers unto
______________________________ the right to purchase Shares represented by the
foregoing Warrant to the extent of __________ Shares, and appoints
_________________________ attorney to transfer such rights on the books of Smoky
Market Foods, Inc., with full power of substitution in the
premises.
Dated: __________________________
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By:_________________________
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___________________________
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___________________________
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___________________________
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Address
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In the
presence of:
___________________________
