Exhibit 6.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
October 6, 1997, by and between Xxxx X. Xxxxxx ("Executive") and Food Extrusion,
Inc., a Nevada corporation (the "Company") with its principle place of business
in the State of California.
WITNESETH:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to accept such employment, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Company and the Executive agree
as follows:
Employment and Duties. Effective October 6, 1997 (the "Commencement Date"), the
Company agrees to employ Executive as Vice President Research and Development,
and Executive agrees to serve the Company in such capacity. Executive agrees to
devote substantially all of his normal business time and efforts during normal
business hours to the performance of his duties under this Agreement. Executive
shall report to the Chief Executive Officer. Key responsibilities include
managing all aspects of product, process and clinical research. All laboratory
functions, including analytical and microbiological, report to Executive.
Executive shall be responsible, in cooperation with the Vice Presidents of
Operations and Marketing, for product quality standards. Executive's key
objectives shall include providing the scientific basis for FoodEx product
benefit claims in support of the successful introduction of FoodEX based
products by major new customers.
Compensation.
Base Salary: Withholding. The Company shall pay Executive a base salary of
$150,000 per year payable in accordance with the Company's standard payroll
practices, with such base compensation subject to increase from time to time
(but no less frequently than annually) in the good faith discretion of the Chief
Executive Officer and the Board of Directors. The parties shall comply with all
applicable withholding requirements in connection with all compensation payable
to Executive hereunder.
Annual Cash Bonus. The Company shall pay Executive an annual cash bonus on April
1, 1998, and annually thereafter, in such amounts as the Chief Executive Officer
and the Board of Directors may decide after good faith and reasonable
determination of Executive's efforts during the prior year and the results
thereof.
Stock Option. The parties acknowledge and agree that, as additional incentive to
Executive, Executive shall be granted, immediately upon execution of this
Agreement, an option (the "Option") to purchase 200,000 shares of Company common
stock ("Shares") at an exercise price equal to .667 times the closing price of
the Shares on the Commencement date of this Agreement (the "Option Price")
pursuant to an option agreement attached hereto as Exhibit A (the "Option
Agreement").
Incentive Plans. In addition to all other benefits and compensation provided by
this Agreement, Executive shall be eligible to participate in such of the
Company's equity, compensation and incentive plans as are generally available to
any of the management executives of the Company, including without limitation
any executive bonus or incentive compensation plans.
Vacation. Executive shall be entitled to such vacation time with full pay as the
Company may provide in its standard policies and practices for any other
management executives; provided, however, that in any event Executive shall be
entitled to a minimum of four weeks annual paid vacation time.
Temporary Living and Relocation Expenses: The Company shall reimburse Executive
for: movement of household goods including two (2) automobiles from the current
location to the Sacramento Metropolitan area. This includes packing, unpacking
and if required, storage for up to three (3) months. If any items are dropped at
the temporary living location, it is the responsibility of the transferee to
move them to the final location; Two (2) apartment/home finding trips to include
travel, reasonable lodging, meals, rental car and/or mileage allowance, for the
employee and spouse only. A maximum of 4 days will be allotted per trip. All
similar costs of travel, lodging, etc. during actual relocation are included;
and If necessary, temporary living benefits for up to thirty (30) days to the
extent that such costs are greater than those incurred at previous principal
residence.
Other Benefits. Executive shall participate in and have the benefits of all
present and future holiday, paid leave, unpaid leave, life, accident,
disability, and health insurance plans, pensions, profit-sharing and savings
plans, a $600 montly care allowance and all other plans and benefits which the
Company now or in the future from time to time makes available to any of its
officer level executives with comparable positions reporting to the Chief
Executive Officer.
Business Expenses. The Company shall promptly reimburse Executive for all
appropriately documented, reasonable business expenses incurred by Executive.
Termination by the Company Without Cause. The Company may, by delivering sixty
(60) days' prior written notice to Executive, terminate Executive's employment
at any time and without Cause (as defined below) by: paying to Executive, no
later than the date of termination, a lump sum equal to: Executive's base salary
accrued through the date of termination; all accrued vacation pay and accrued
bonuses, if any, to the date of termination; any bonus, if any, which would have
been paid but for the termination, prorated through the date of termination,
based upon the Company's performance and in accordance with the terms,
provisions and conditions of any Company incentive bonus plan in which Executive
may be designated a participant; if the date of termination occurs within one
year of the Commencement Date, an amount equal to 12 months of Executive's base
salary at the rate in effect on the date of notice of termination (the
"Severance Amount"). The Severance Amount shall be increased to 18 months of
Executive's base salary as of the date of the notice of termination if the date
of termination is not less than one nor more than two years after the
Commencement Date, and the Severance Amount shall be further increased to 24
months of such base salary if the date of termination is more than two years
after the Commencement Date; providing for a period of 132 months after the date
of termination, at the Company's expense, coverage to Executive under the
Company's life insurance and disability insurance policies and to Executive and
his dependents under the Company's health plan; if any of the Company's health,
life insurance, or disability insurance plans are not continued or if Executive
is not eligible for coverage thereunder because of the termination of his
employment, the Company shall apply the amount required for Executive to obtain
equivalent coverage.
Definition of Cause. For purposes of this Agreement, "Cause" means: (i)
misappropriating any funds or property of the Company; (ii) attempting to obtain
any material personal profit from any transaction in which the Executive has an
interest that is adverse to the material interests of the Company, other than a
transaction disclosed to and approved by the Company; (iii) the Executive's
willful and continuing refusal to perform his duties pursuant to this Agreement
after reasonable written notice; (iv) the commission by the Executive of any
material act of misconduct or dishonesty or any wrongful act which has a direct,
substantial and adverse effect on the Company's business or reputation; or (v)
conviction of a felony.
Payments Upon Termination for Good Reason.
Definition of "Good Reason". "Good Reason" shall mean: the assignment of
Executive to any duties inconsistent with, or any adverse change in, Executive's
titles or positions, duties, responsibilities or status with the Company, or the
removal of Executive from, or failure to reelect Executive to, any of such
positions; or any attempt to reduce, or a request by the Company that Executive
reduce, his base salary; or any other material breach by the Company of this
Agreement which is not cured within ten (10) days of notice thereof by Executive
to Company; or A Change in Control. A "Change in Control" means the occurrence
of any of the following: any "person," as such term is used in Sections 13 (d)
and 14(d) of the Exchange Act of 1934, as amended (the "Exchange Act") (other
than the Company, its existing shareholders, or Monsanto Corporation or its
subsidiaries or affiliates) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company (or a successor to the Company) representing 50% or more of the combined
voting power of the then outstanding securities of the Company or such
successor; the dissolution of the Company or liquidation of more than 50% in
value of the Company or a sale of assets involving 50% or more in value of the
assets of the Company, (ii) any merger or reorganization of the Company whether
or not another entity is the survivor, (iii) a transaction (other than the in
initial public offering of Company's shares) pursuant to which the holders, as a
group, of all of the shares of the Company outstanding before the transaction,
hold, as a group, less than 50% of the combined voting power of the Company or
any successor company outstanding after the transaction, or (iv) any other event
or series of events which the Board determines, in its discretion, would
materially alter the structure of the Company or its ownership.
Termination. Executive may terminate his employment for Good Reason at any time
upon providing written notice of termination to the Company. In the event of
termination of Executive's employment for Good Reason, the Company shall pay
Executive all of the consideration the Company would be obliged to pay to
Executive under Section 4 of this Agreement if Executive were terminated without
Cause.
Voluntary Termination by Executive. In addition to the reasons set forth in
Section 6, Executive may terminate this Agreement at any time for any reason or
no reason upon delivering thirty (30) days' prior written notice to the Company.
No later than the date of termination, the Company shall pay Executive a lump
sum equal to his accrued base salary through the date of termination, and all
accrued vacation pay and bonuses.
Indemnification. As a director, officer and agent of the Company, Executive
shall be fully indemnified by the Company to the fullest extent permitted by
California law. To implement this provision, Company shall execute and deliver
to Executive its standard form of indemnification agreement for officers and
directors, and Executive shall thereafter be entitled to the benefits of any
subsequent amendments thereto made for any management executives. In addition,
Company agrees to maintain during the term of Executive's employment, a
directors and officers insurance policy with customary policy limits and
deductible, under which Executive is an insured.
Confidential Information. Executive shall execute and deliver to the Company any
standard and reasonable confidentiality and proprietary rights agreement which
the Company reasonably requires of all of its management executives.
Assignment. The rights and obligations of the parties under this Agreement shall
be binding upon and inure to the benefit of their respective successors,
assigns, executors, administrators and heirs, provided, however, that Executive
may not delegate any of Executive's duties under this Agreement.
Miscellaneous.
Complete Agreement. This Agreement constitutes the entire agreement between the
parties and cancels and supersedes all other prior or contemporaneous agreements
between the parties which relate to the subject matter contained in this
Agreement.
Modification, Amendment, Waiver. No modification or amendment of any provisions
of this Agreement shall be effective unless approved in writing by both parties.
The failure at any time to enforce any of the provisions of this Agreement shall
in no way be construed as a waiver of such provisions and shall not affect the
right of either party thereafter to enforce each and every provision hereof in
accordance with its terms.
Governing Law. This Agreement shall be construed in accordance with the laws of
the State of California.
Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
Attorneys' Fees. In the event of dispute relating to this Agreement (including
enforcing judgments and appeals), the prevailing party shall be entitled to
reimbursement of its reasonable attorney's fees and costs of suit in addition to
such other relief as may be granted.
Notices. All notices and other communications under this Agreement shall be in
writing and shall be given in person or by telegraph, telefax or first class
mail, certified or registered with return receipt requested, and shall be deemed
to have been duly given when delivered personally or three days after mailing or
one day after transmission of a telegram or telefax, as the case may be, to the
respective persons named below:
If to the Company: Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. XxXxxx, Chairman
If to the Executive: Xxxx X. Xxxxxx
000 Xxx Xxxxxx
Xxx Xxxx, XX 00000-0000
With a copy to:
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
COMPANY: Food Extrusion, Inc. a Nevada corporation
By:/s/ Xxxxx X. Xxxxx
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Its: Chief Executive Officer
EXECUTIVE: /s/ Xxxx X. Xxxxxx 9/12/97
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Xxxx X. Xxxxxx
