EXHIBIT 10.13
AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
HORIZON ORGANIC HOLDING CORPORATION, a Delaware corporation ("HOH" or the
"Company"), agrees with BARNET ▇▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇▇") as follows ("Employment
Agreement") effective the 1st day of January, 1998.
1. PURPOSE. ▇▇. ▇▇▇▇▇▇▇▇ is currently the President and Chief Executive
Officer of HOH. ▇▇. ▇▇▇▇▇▇▇▇ and HOH (as successor in interest to Horizon
Organic Dairy, Inc.) are parties to an Employment Agreement dated July 1, 1996.
The parties desire to amend and replace the terms of ▇▇. ▇▇▇▇▇▇▇▇'▇ employment
by HOH in accordance with the terms and conditions set forth herein.
2. EMPLOYMENT. HOH hereby employs ▇▇. ▇▇▇▇▇▇▇▇, and ▇▇. ▇▇▇▇▇▇▇▇ agrees to
be employed, as President and Chief Executive Officer of HOH. HOH may from time
to time designate other or additional titles for ▇▇. ▇▇▇▇▇▇▇▇ as deemed
appropriate by the HOH Board of Directors, but HOH and ▇▇. ▇▇▇▇▇▇▇▇ agree that
at all times during the term of this Employment Agreement ▇▇. ▇▇▇▇▇▇▇▇ will be
employed as the President and Chief Executive Officer of HOH. In addition, the
Company shall use its best efforts to cause ▇▇. ▇▇▇▇▇▇▇▇ to be elected to the
Company's Board of Directors so long as this Employment Agreement or any
extension hereof remains in effect.
3. DUTIES. During the term hereof, ▇▇. ▇▇▇▇▇▇▇▇ will devote substantially
all of his full time and effort to the business of HOH. ▇▇. ▇▇▇▇▇▇▇▇ shall have
the right to devote reasonable time to the management of his personal
investments and activities, participation in trade associations or other
organizations seeking to advance the cause of natural and/or organic foods, and
support of community activities; provided, however, that while employed with HOH
▇▇. ▇▇▇▇▇▇▇▇ shall not be employed by any other company, individual or entity on
a full or part-time basis nor shall he serve as an independent contractor or a
paid consultant. The parties intend that ▇▇. ▇▇▇▇▇▇▇▇'▇ initial duties hereunder
shall primarily involve duties of the type normally associated with a senior
managerial position in an organization of the size and type of HOH. HOH may
modify, reduce and/or eliminate ▇▇. ▇▇▇▇▇▇▇▇'▇ duties and objectives at its
reasonable discretion from time to time, provided that at no time will ▇▇.
▇▇▇▇▇▇▇▇ be required to perform duties or to meet objectives which are
inconsistent with or inappropriate for a member of senior management of HOH.
4. TERM. Unless otherwise terminated as set forth in paragraph 9 below,
the parties agree that this Employment Agreement shall continue in effect for a
period of 24 months from the Effective Date ("Employment Period"). Employment
with HOH shall terminate 24 months from the Effective Date unless otherwise
renewed. HOH will provide notice at least 90 days prior to the end of the
Employment Agreement as to whether it wishes to extend the Employment Agreement.
If it chooses to extend the Employment Agreement, its notice will include
provisions with respect to any increase in compensation or other changes which
would apply. ▇▇. ▇▇▇▇▇▇▇▇ will have a period of 30 days after receipt of the HOH
notice to advise HOH of his decision to accept or reject the renewal. If HOH
proposes a renewal and if ▇▇. ▇▇▇▇▇▇▇▇ agrees to the renewal, then the
Employment Agreement will be renewed for an additional term of 12 months, with
the initial renewal term therefore extending through December 31, 2000.
5. BASE COMPENSATION. ▇▇. ▇▇▇▇▇▇▇▇ shall receive compensation from HOH as
follows:
(a) Starting on the date hereof, a base salary at an annual rate of
$140,000; and
(b) Annual increases in base compensation shall be established by and
at the sole discretion of the Compensation Committee appointed by the Board of
Directors of HOH.
6. INCENTIVE COMPENSATION. ▇▇. ▇▇▇▇▇▇▇▇ shall be entitled to receive
incentive compensation in accordance with an incentive plan established by the
Compensation Committee or the HOH Board of Director. Incentive compensation will
be based on both individual and corporate factors, but the factors applicable to
▇▇. ▇▇▇▇▇▇▇▇ will be consistent with those applicable to other members of senior
management. The corporate factors will typically be linked to net operating
income and gross sales. The maximum amount which may be awarded pursuant to the
incentive plan will be an amount equal to 90% of base salary.
7. BENEFITS. ▇▇. ▇▇▇▇▇▇▇▇ will receive four weeks of paid vacation during
each year in which this Agreement remains in effect, plus such public holidays
as are generally recognized by businesses in Colorado, not to exceed 10 days per
year. Up to two weeks of unused vacation time may be carried over to any
subsequent year. ▇▇. ▇▇▇▇▇▇▇▇ will be entitled to participate in any benefit
plans provided to employees of HOH, including health and dental insurance. HOH
shall also provide to ▇▇. ▇▇▇▇▇▇▇▇ life insurance in the minimum amount of
$100,000, disability insurance providing at least 60% of ▇▇. ▇▇▇▇▇▇▇▇'▇ covered
base salary or $7,000 per month (whichever amount is less), provided that ▇▇.
▇▇▇▇▇▇▇▇ qualifies for such insurance, and reimbursement of reasonable business
expenses in such manner as the Board of Directors of HOH shall approve from time
to time at its sole discretion. Except as set forth below, all benefits except
those provided by law, shall cease at the termination of this Employment
Agreement.
8. STOCK RIGHTS. HOH agrees to grant to ▇▇. ▇▇▇▇▇▇▇▇ the following stock
option rights under HOH's Incentive Stock Option plan dated October 25, 1995.
(a) Effective upon execution of this Employment Agreement, ▇▇.
▇▇▇▇▇▇▇▇ shall be granted an option to purchase 20,000 shares of HOH common
stock for a purchase price of $6.50 per share, payable in cash at the time of
issuance. Such option shall terminate if not exercised by January 10, 2003.
(b) All rights to acquire shares hereunder are granted as incentive
stock options and in accordance with such other terms and conditions as HOH may
reasonably establish, including requirements that ▇▇. ▇▇▇▇▇▇▇▇ execute and
comply with all standard agreements of HOH, including an Incentive Stock Option
Agreement, Subscription Agreement and Shareholders Agreement from time to time
in effect with respect to HOH's common shares. ▇▇. ▇▇▇▇▇▇▇▇ shall be solely
responsible for the payment of any individual income taxes which accrue as a
result of the issuance of such options. All options shall lapse, if not
previously exercised, three months after termination of ▇▇. ▇▇▇▇▇▇▇▇'▇
employment hereunder.
2.
(c) Effective upon execution of this Employment Agreement, all 135,000
of the incentive stock options granted to ▇▇. ▇▇▇▇▇▇▇▇ under the Stock Option
Agreement dated June 1, 1995, shall be fully vested and shall be exercisable in
accordance with such Stock Option Agreement.
9. TERMINATION OF EMPLOYMENT. ▇▇. ▇▇▇▇▇▇▇▇ and HOH each acknowledge that
either Party has the right to terminate ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with HOH
pursuant to the following:
(a) TERMINATION BY THE COMPANY FOR CAUSE. HOH will have the right to
terminate ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with HOH at any time for "cause". "Cause"
for termination will mean only: (i) ▇▇. ▇▇▇▇▇▇▇▇ has committed any material act
of embezzlement, fraud and/or is convicted of a felony; (ii) ▇▇. ▇▇▇▇▇▇▇▇
engages in direct unfair competition with HOH and, in any material respect,
willfully breaches his obligations under this Agreement; (iii) ▇▇. ▇▇▇▇▇▇▇▇
causes material damage to HOH through intentional misconduct or gross neglect of
the duties customary to his office. No activities or inactivities covered by
items (ii) and (iii) will be deemed to be "cause" unless HOH has notified ▇▇.
▇▇▇▇▇▇▇▇ of such activity or inactivity in writing and ▇▇. ▇▇▇▇▇▇▇▇ has failed
to cure the same within 15 days. In the event ▇▇. ▇▇▇▇▇▇▇▇ is terminated for
cause he will not be entitled to Severance Pay (as defined below), pay in lieu
of notice or any other such compensation set forth in paragraphs 5-8 herein, but
he will be entitled to all compensation, benefits and unreimbursed expenses
accrued through the date of termination.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. HOH will have the right
to terminate ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with HOH at any time without cause. In
the event ▇▇. ▇▇▇▇▇▇▇▇ is terminated without cause, and upon the execution of a
release by ▇▇. ▇▇▇▇▇▇▇▇, releasing all claims arising under this Employment
Agreement against HOH as of the date ▇▇. ▇▇▇▇▇▇▇▇ signs such release, HOH shall
pay ▇▇. ▇▇▇▇▇▇▇▇ the following "Severance Pay": (i) ▇▇. ▇▇▇▇▇▇▇▇'▇ then
applicable base salary for a period of the longer of (A) 12 months after the
termination without cause date or (B) the remainder of the Employment Period,
and (ii) substantially equivalent health, medical, life, disability and other
benefits to the extent permitted by HOH insurance policies or plans, for the
same 12 month period. Severance Pay will further include the payment of any
incentive bonuses which become due under paragraph 6, for the year in which
termination occurs, prorated for the portion of the year during which ▇▇.
▇▇▇▇▇▇▇▇ continued to be employed by HOH. Such prorated bonus, if any, shall be
paid at the same time as bonuses are paid to other employees who participate in
the incentive bonus plan.
(c) VOLUNTARY TERMINATION BY ▇▇. ▇▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇▇ may
voluntarily terminate his employment with HOH at any time, after which no
further compensation will be paid to ▇▇. ▇▇▇▇▇▇▇▇. To permit HOH to make
arrangements to fill the vacancy created by ▇▇. ▇▇▇▇▇▇▇▇'▇ departure, ▇▇.
▇▇▇▇▇▇▇▇ agrees to give HOH 30 days advance notice of any intended resignation.
In the event ▇▇. ▇▇▇▇▇▇▇▇ voluntarily terminates his employment, he will not be
entitled to Severance Pay, pay in lieu of notice or any other such compensation
set forth in paragraphs 5-8 herein, but he will be entitled to all compensation,
benefits and unreimbursed expenses accrued through the date of termination.
3.
(d) TERMINATION BY ▇▇. ▇▇▇▇▇▇▇▇ WITH CAUSE. ▇▇. ▇▇▇▇▇▇▇▇ will have the
right to terminate his employment with HOH at any time for "cause". "Cause" for
termination will mean only a material breach of this Agreement by HOH which
breach is not cured by HOH within 15 days after receipt of written notice
thereof from ▇▇. ▇▇▇▇▇▇▇▇. In the event ▇▇. ▇▇▇▇▇▇▇▇ terminates his agreement
for "cause," the non-competition obligations of this Agreement will terminate
and ▇▇. ▇▇▇▇▇▇▇▇ will be entitled to "SEVERANCE PAY" as defined in 9(b) above.
(e) AUTOMATIC TERMINATION OR EXPIRATION. If not terminated earlier, or
renewed by agreement of the parties, ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with HOH will
terminate at the end of the Employment Period. If the Company does not offer to
continue ▇▇. ▇▇▇▇▇▇▇▇'▇ employment following the expiration of this Employment
Agreement (unless there shall have been cause for termination (as defined
above)), or if ▇▇. ▇▇▇▇▇▇▇▇'▇ employment is continued by mutual agreement
following termination of this Employment Agreement but is thereafter terminated
by the Company without cause (as defined above), the Company shall pay ▇▇.
▇▇▇▇▇▇▇▇ the Severance Pay, subject to the execution of a general release as set
forth in paragraph 9(b).
10. NON-COMPETITION OBLIGATIONS. In consideration of his employment by HOH
and the Severance Pay to be paid to ▇▇. ▇▇▇▇▇▇▇▇ as further set forth in
paragraph 9 above, ▇▇. ▇▇▇▇▇▇▇▇ agrees that during his employment, and for a
period of 24 months after the termination or expiration of his employment with
HOH, he will not, without first obtaining the express written consent of HOH,
own more than 5% of the outstanding stock of a publicly-traded Competitive
Company (as defined below) or any stock of a privately held Competitive Company,
or participate in the financing, operation, management or control of, any
Competitive Company. A "Competitive Company" is a person, firm, corporation or
business located in the United States that is primarily engaged in the
production or wholesale distribution of organic dairy products sold by HOH, or
which HOH has express plans to sell as of the termination or expiration of ▇▇.
▇▇▇▇▇▇▇▇'▇ employment with HOH. ▇▇. ▇▇▇▇▇▇▇▇ further agrees that he will not
induce any employee of HOH to leave the employ of HOH for a period of twenty-
four months after the termination or expiration of his employment with HOH. This
paragraph 10 shall survive the termination or expiration of this Employment
Agreement for any reason.
11. ENFORCEMENT. HOH and ▇▇. ▇▇▇▇▇▇▇▇ agree that any violation or
threatened violation of the terms of this Employment Agreement could cause
immediate and irreparable harm to HOH for which monetary damages would be
inadequate and difficult to ascertain. The parties therefore agree that upon the
existence of any such violation or threatened violation, provided that HOH has
paid and continues to pay ▇▇. ▇▇▇▇▇▇▇▇ his salary, bonus and benefits as
required hereunder, and to honor ▇▇. ▇▇▇▇▇▇▇▇'▇ stock option rights if any, HOH
may obtain a temporary restraining order, preliminary injunction, or other
appropriate form of equitable relief from any court of competent jurisdiction.
Such relief shall be in addition to and not substitution for any monetary
damages to which HOH might otherwise be entitled.
12. CONTROLLING AGREEMENT. This Employment Agreement supersedes and
replaces in its entirety all prior agreements and understandings between HOH and
▇▇. ▇▇▇▇▇▇▇▇ relating to ▇▇. ▇▇▇▇▇▇▇▇'▇ employment by HOH, including without
limitation the Executive Employment Agreement between the parties dated July 1,
1996.
4.
13. MISCELLANEOUS.
(a) The rights and duties of the parties shall not be assignable by
either party, except that HOH may assign its rights but shall continue to
guarantee its obligations, to any corporation or other business entity which is
controlled by HOH, which controls HOH, or which is a successor by purchase,
merger or otherwise to HOH. The heirs, successors, personal representatives and
assigns of ▇▇. ▇▇▇▇▇▇▇▇ shall have the right to collect any accrued benefits due
▇▇. ▇▇▇▇▇▇▇▇ hereunder.
(b) This Employment Agreement and all provisions hereof shall bind
and inure to the benefit of HOH, ▇▇. ▇▇▇▇▇▇▇▇, and their respective personal
representatives, heirs, successors, and permitted assigns, but ▇▇. ▇▇▇▇▇▇▇▇ is
not entitled to assign his rights and obligations hereunder.
(c) This Agreement will be deemed to have been entered into, and it
will be construed and enforced in accordance with the laws of the State of
Colorado as applied to contracts made and to be performed entirely within
Colorado.
(d) Any action to enforce or requiring interpretation of this
Agreement must be brought in a forum located within the State of Colorado.
(e) In the event that any provision of this Employment Agreement
shall be held to be invalid, illegal, or unenforceable, such provision may be
severed, modified or enforced to the extent possible, and such invalidity,
illegality, or unenforceability shall not affect the remainder of this
Employment Agreement, unless such severance would defeat the fundamental
purposes of this Employment Agreement.
(f) This Employment Agreement may be amended or modified only by
written agreement subscribed to by both of the parties hereto.
(g) The waiver by either party of a breach of any provision of this
Employment Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach of the same provision or any other provision of
this Employment Agreement.
(h) The section headings contained herein are for reference purposes
only and will in no way affect the meaning or interpretation of this Agreement
(i) All notices which are required or may be given under this
Employment Agreement shall be given by certified mail, return receipt requested,
registered mail, or personal service to the following addresses:
(i) If intended for HOH:
Horizon Organic Holdings Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5.
with a copy to:
▇▇▇▇▇▇ Godward llp
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(ii) If intended for ▇▇. ▇▇▇▇▇▇▇▇:
c/o Horizon Organic Holdings Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
A party may direct from time to time that notices be sent to a different
address by giving the other party notice in writing of the new address.
(j) To ensure rapid and economical resolution of any and all disputes
directly or indirectly arising out of or in any way connected with ▇▇.
▇▇▇▇▇▇▇▇'▇ employment with HOH or the termination of that employment or this
Employment Agreement, with the sole exception of disputes which arise under ▇▇.
▇▇▇▇▇▇▇▇'▇ obligations pursuant to paragraph 10 above (collectively, the
"Arbitrable Claims"), HOH and ▇▇. ▇▇▇▇▇▇▇▇ each agree that any and all such
disputes, whether of law or fact of any nature whatsoever, will be resolved by
final and binding arbitration under the then existing American Arbitration
Association ("AAA") arbitration procedures. The Arbitrable Claims will include,
but will not be limited to: any and all such claims related to salary, bonuses,
commissions, stock, stock options, or any other ownership interests in HOH,
vacation pay, fringe benefits, expense reimbursements, severance benefits, or
any other form of compensation; claims pursuant to any federal, state or local
law or cause of action including, but not limited to, the federal Civil Rights
Act of 1964, as amended; the federal Age Discrimination in Employment Act, as
amended ("ADEA"); the federal Americans with Disabilities Act of 1990; the
Colorado Anti Discrimination Act of 1957, as amended; the Wage Claim Act, C.R.S.
(S)(S) 8-4-101, et seq., tort law; contract law; wrongful discharge;
discrimination; fraud; defamation; and emotional distress; and breach of the
implied covenant of good faith and fair dealing. ▇▇. ▇▇▇▇▇▇▇▇ and HOH
acknowledge and agree that any and all rights they may otherwise have to resolve
such Arbitrable Claims by jury trial, by a court, or in any forum other than the
AAA, are hereby expressly waived. The arbitrators shall be authorized, in
addition to any other action they may take, to award reasonable attorneys' fees
and costs of arbitration in favor of the prevailing party.
Executed effective the day and year first set forth above.
HORIZON ORGANIC HOLDINGS BARNET ▇▇▇▇▇▇▇▇
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ Barnet ▇▇▇▇▇▇▇▇
------------------------------- -----------------------------
Title: Chairman
---------------------------- Date:
------------------------
Date: 4/22/98
-----------------------------
6.
