AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.11
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Agreement”)
is entered into as of February 1, 2018 (the
“Effective
Date”), by
and between WEED, Inc., a Nevada corporation
(“Corporation”), and
XXXXX XXXXXX (“Executive”).
The Corporation and Executive may be referred to herein
collectively as the “Parties” and each individually as
a “Party.”
RECITALS
WHEREAS, prior to the Effective Date, Executive was
employed by the Corporation pursuant to the certain Employment
Agreement dated October 1, 2016 among the Corporation and Executive
(“Original
Agreement”).
WHEREAS, the Corporation and Executive desire to
amend and restate the Original Agreement, on the terms and
conditions set forth herein, and for this Agreement to supersede
and replace the Original Agreement in its entirety.
WHEREAS, Executive received 7,000,000
shares of the Corporation’s common stock as a signing bonus
in accordance with the Original Agreement.
WHEREAS, Executive agrees to forgo all
other previously agreed upon share payments and other consideration
and benefits set out in the Original Agreement.
WHEREAS,
the Corporation and Executive wish to
memorialize the terms of Executive’s employment with the
Corporation, the obligations of the Corporation to Executive, and
to specify certain rights, responsibilities and duties of
Executive.
AGREEMENT
NOW, THEREFORE,
based upon the premises set forth
herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
ARTICLE I
RESPONSIBILITIES
(a) Executive is
employed by the Corporation to serve as President and Chief
Executive Officer of the Corporation with the powers and
responsibilities as delegated or assigned by the
Corporation.
(b) Executive accepts
employment upon the terms set forth in this Agreement and will
perform diligently to the best of his abilities those duties in a
manner that promotes the interests and goodwill of the
Corporation.
1
ARTICLE II
COMPENSATION
Section
2.1 General
Terms.
(a) Base
Salary. The
Corporation shall pay base compensation to Executive at the rate of
$1,500.00 US Dollars per week payable in accordance with the
Corporation’s ordinary payroll policies (“Base
Salary”). Executive’s Base Salary shall be
reviewed at the end of each year (or sooner) of employment and may
be subject to increase in the sole discretion of the Corporation,
and ratified by the Corporation based upon a review of the
business, operations and financial performance of the Corporation.
At any time during the Term, in the event that the Corporation
raises an aggregate of $2,000,000.00 US Dollars in connection with
the sale of debt or equity securities during the Term,
Executive’s Base Salary shall increase to the sum of
$120,000.00 US Dollars per annum for the remainder of the
Term.
(b) Bonus/Compensation.
In addition to the Base Salary, Executive shall be entitled to
receive such discretionary bonus or incentive compensation as
mutually agreed to by the Corporation and Executive, including, but
not limited to, Non-Qualified Stock Options as set out in that
Non-Qualified Stock Option Award Agreement and Restricted Stock as
set out in the Restricted Stock Agreement, both of even date
herewith.
Section
2.2 Reimbursement.
It is acknowledged by the parties that Executive, in connection
with the services to be performed by him pursuant to the terms of
this Agreement, may be required to make payments for travel,
communications, entertainment of business associates and similar
expenses. The Corporation will reimburse Executive for all
reasonable, documented expenses of types authorized by the
Corporation and incurred by Executive in the performance of his
duties hereunder. Executive will comply with such budget
limitations and approval and reporting requirements with respect to
expenses as the Corporation may establish in writing and
communicate to Executive from time to time.
Section
2.3 Executive
Benefits. During the term of this Agreement, the Corporation
shall provide Executive with executive and fringe benefits under
any and all executive benefit plans and programs which are from
time to time generally made available to the executives of the
Corporation, including, without limitation, health and dental care,
profit sharing plans, vacation benefits and a per annum car
allowance.
Section
2.4 Vacation.
Executive shall be entitled to two (2) weeks of paid vacation,
prorated for any year in which Executive is not employed for the
entire calendar year. Upon termination of Executive’s
employment, the Corporation shall pay to Executive, or his estate
or representative, accrued and unused vacation to which Executive
is entitled during the calendar year.
2
ARTICLE III
NONDISCLOSURE OF
CONFIDENTIAL INFORMATION
Section
3.1 Definitions.
For purposes of this Agreement, “Confidential
Information” is
any data or information that is unique to the Corporation,
proprietary, competitively sensitive, and not generally known by
the public, including, but not limited to, the Corporation’s
business plan, projects, prospective projects, customers, and
prospective customers. “Prospective
Customers” is understood to mean those
potential customers with whom or with which the Corporation is
engaged in active discussion about a business relationship,
training manuals, project development plans, bidding and pricing
procedures, market plans and strategies, business plans and
projections, internal performance statistics, financial data,
confidential information concerning executives of the Corporation,
operational or administrative plans, policy manuals, terms and
conditions of contracts and agreements, and all similar information
related to the business of the Corporation’s customers or
potential customers or suppliers, other than information that is
publicly available. The term “Confidential Information”
shall not apply to information which is: (i) already in
Executive’s possession (unless such information was obtained
by Executive from the Corporation in the course of
Executive’s employment by the Corporation); (ii) received by
Executive form a third
party with no restriction on disclosure; (iii) information
that has become publicly available through no fault of Executive;
(iv) required to be disclosed by any applicable law or by an order
of a court of competent jurisdiction; or (v) information that
is developed by Executive not in the course of Executive’s
employment.
Section
3.2 Use and
Disclosure. Executive
recognizes and acknowledges that the Confidential Information
constitutes valuable, special and unique assets of the Corporation.
Except as required to perform Executive’s duties as an
executive of the Corporation, Executive will not use or disclose
any Confidential Information of the Corporation.
ARTICLE IV
TERM OF
AGREEMENT
Section
4.1 Term
of Agreement. This Agreement shall continue in full force and
effect for five (5) years from the date of the Original Agreement
(“Term”)
and shall be automatically renewed for consecutive two (2)
year periods upon the same terms, conditions and requirements
unless terminated by the Parties as set forth herein (each a
“Renewal
Term”). This Agreement may be terminated prior to the
end of its Term or any Renewal Term in accordance with Article V herein.
ARTICLE V
TERMINATION
Section
5.1 Termination.
Executive’s employment hereunder will terminate upon the
occurrence of the following events:
(a) By the Corporation
and Executive. The Corporation and Executive may
mutually agree to terminate this Agreement at any time, for any
reason, during the Term or any Renewal Term. Following such
termination, the Corporation shall promptly reimburse Executive
pursuant to Section
2.2 for expenses incurred in the performance of his duties
hereunder prior to termination and make all payments that Executive
shall be entitled to including, but not limited to,
Executive’s Base Salary and bonus/compensation pursuant to
Section 2.1 earned
through the date of termination.
3
(b) By the Corporation
with Cause or by Executive without Good Reason. This Agreement may be terminated by
Executive without Good Reason, (Good Reason is defined in
Section 5.1(c)),
upon thirty (30) days prior written notice, and by the Corporation
for Cause (as defined in I though III below), with thirty (30) days
prior written notice for any of the following reasons:
I.
a material breach
by Executive of any of the provisions of this Agreement that has a
substantial negative impact on the profitability of the
Corporation, upon failure of Executive to cure such breach within
thirty (30) days after receipt of written notice of breach by the
Corporation, or longer if the breach cannot reasonably be cured
within such thirty (30) day period;
II.
conviction of
Executive for a felony involving moral turpitude; or
III.
commission by
Executive of an act of fraud, embezzlement, or material dishonesty
against the Corporation, or any act that would foreseeably
materially harm the reputation or business of the Corporation, or
its officers, directors and shareholders.
Following such termination, the Corporation shall
reimburse Executive pursuant to Section 2.2
for expenses incurred in the
performance of his duties hereunder prior to termination and
Executive shall be entitled to any other payments due from the
Corporation including, but not limited to, his Base Salary and
bonus/compensation pursuant to Section 2.1
earned through the date of
termination.
(c) By Executive for
Good Reason.
Executive may upon thirty (30) days prior written notice terminate
this Agreement for Good Reason. Termination for “Good
Reason” for purposes of this Section 5.1(c),
is a termination of employment under any of the following
circumstances:
I.
a material breach
by the Corporation of any of the provisions of this Agreement or
any other agreement related to Executive’s employment with
the Corporation, upon failure of the Corporation to cure such
breach within thirty (30) days after receipt of written notice of
breach by Executive;
II.
a decrease in
Executive’s Base Salary as provided in Section 2.1 herein or a
material change in Executive’s duties or
authority;
III.
Executive is asked
or directed by the Corporation to engage or participate in an
activity or activities that would result or could reasonably be
believed to result in the conviction of a criminal offense or the
commission of an act of fraud, embezzlement, or material dishonesty
against the Corporation by Executive, a member of the Board of
Directors, an officer or executive of the Corporation;
or
4
IV.
Executive
is asked to perform regular services
at a location that is more than one hundred fifty (150)
miles from the Tucson, Arizona metropolitan area without
Executive’s prior written consent.
(d) Termination on
Death. In the event
of Executive’s death, this Agreement will be deemed to have
terminated on the date of his death. Following such termination,
the Corporation shall reimburse Executive’s estate pursuant
to Section 2.2 for
expenses incurred in the performance of his duties hereunder prior
to his death and Executive’s estate shall be entitled to
Executive’s Base Salary and bonus/compensation pursuant to
Section 2.1 earned
through the date of Executive’s death.
(e) Termination on
Disability. This
Agreement may be terminated by the Corporation immediately upon
Executive’s “disability” in the event Executive
becomes physically or mentally disabled. Executive will be deemed
disabled if, as a result of Executive’s incapacity due to
physical or mental illness, Executive shall have been absent from
his duties with the Corporation on a full-time basis for one
hundred eighty (180) business days in any three hundred sixty (360)
business day period. Following such termination, the Corporation
shall reimburse Executive pursuant to Section 2.2 for expenses
incurred in the performance of his duties hereunder prior to
termination and Executive shall be entitled to his Base Salary and
bonus/compensation pursuant to Section 2.1 earned through the
date of Executive’s termination herein.
(f) Separation
Payments. Notwithstanding any provision to the contrary, in
the event that this Agreement is terminated by the Corporation
without Cause or by Executive with Good Reason, then Executive
shall also be entitled to continue to receive Executive’s
Base Salary, payable in accordance with customary payroll practices
(and subject to customer withholding and payroll taxes) until
twelve (12) months from the termination date of Executive’s
employment (collectively, the “Separation
Payment”), provided, that, payment shall not be made
until the first payroll date of the Corporation occurring after the
sixtieth (60th) day following the
date of termination, and shall include any amounts that would have
otherwise been paid prior to such date.
(g) Section
409A. This Agreement shall comply with Section 409A of the
Internal Revenue Code of
1986, as amended, or an exception thereto. Each provision of
the Agreement shall be interpreted, to the extent possible, to
comply with Section 409A or an exception thereto. Nevertheless, the
Corporation does not and cannot guarantee any particular tax effect
or treatment of the amounts due under this Agreement. Except for
the Corporation’s responsibility to withhold applicable
income and employment taxes from compensation paid or provided to
Executive, the Corporation will not be responsible for the payment
of any applicable taxes on compensation paid or provided pursuant
to this Agreement. Notwithstanding anything in this Agreement to
the contrary, if the Corporation concludes, in the exercise of its
reasonable discretion, that the severance benefits described in
Section 5.2(f), are
subject to Section 409A of the Internal Revenue Code, no severance
payment will be paid prior to Executive’s “separation
from service” as defined in Treasury Regulation Section
1.409A-1(h) (applying the default rules of Treasury Regulation
Section 1.409A-1(h)).
5
ARTICLE VI
GENERAL
TERMS
Section
6.1 Notices.
All notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to
have been given (i) when delivered by hand (with written
confirmation of receipt); (ii) when received by the addressee if
sent by a nationally recognized overnight courier (receipt
requested); (iii) on the date sent by facsimile or e-mail of a PDF
document (with confirmation of transmission) if sent during normal
business hours of the recipient, and on the next business day if
sent after normal business hours of the recipient; or (iv) on the
third day after the date mailed, by certified or registered mail,
return receipt requested, postage prepaid. Such communications must
be sent to the respective Parties at the following
addresses:
|
If to the Corporation, to:
|
|
|
|
Xxx Xxxxx Xxxxxx Xxx, 00xx
Xxxxx
|
|
|
Xxxxxx, Xxxxxxx 00000
|
|
|
|
|
If to Executive, to:
|
Xxxxx Xxxxxx
|
|
|
0000 Xxxxx Xxxx Xxxxx
|
|
|
Xxxxxx, Xxxxxxx 00000
|
Section
6.2 Legal Fees and
Expenses. The
prevailing party in any mediation, arbitration, or litigation
relating to this Agreement shall be entitled to recover from the
other party any and all attorneys’ and related fees and
expenses incurred by the prevailing party in such arbitration or
litigation.
Section
6.3 Successors
and Binding Agreement.
(a) This
Agreement shall be binding upon the Corporation and successors to
the Corporation, and shall be assignable, transferable or delegable
by the Corporation, at the Corporation’s sole
discretion.
(b) This
Agreement shall inure to the benefit of and be enforceable by
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributes and/or
legatees.
Section
6.4 Entire Agreement;
Modification. This
Agreement constitutes the complete and entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements between the parties. The parties have executed
this Agreement based upon the express terms and provisions set
forth herein and have not relied on any communications or
representations, oral or written, which are not set forth in this
Agreement.
Section
6.5 Amendment.
The covenants or provisions of this Agreement may not be modified
by a subsequent agreement unless the modifying agreement: (i) is in
writing; (ii) contains an express provision referencing this
Agreement; (iii) is signed and executed on behalf of the
Corporation by an officer of the Corporation other than Executive;
(iv) is approved by resolution of the Corporation; and (v) is
signed by Executive.
6
Section
6.6 Legal
Consultation. Both
Parties have been accorded a reasonable opportunity to review this
Agreement with legal counsel prior to executing this
Agreement.
Section
6.7 Choice of
Law. This Agreement
and the performance hereof will be construed and governed in
accordance with the laws of the State of Arizona, without regard to
its choice of law principles.
Section
6.8 Waiver of
Provisions. Any
waiver of any terms and conditions hereof must be in writing and
signed by the parties hereto. The waiver of any of the terms and
conditions of this Agreement shall not be construed as a waiver of
any subsequent breach of the same or any other terms and conditions
hereof.
Section
6.9 Severability.
The provisions of this Agreement shall be deemed severable, and if
any portion shall be held invalid, illegal or unenforceable for any
reason, the remainder of this Agreement shall be effective and
binding upon the parties provided that the substance of the
economic relationship created by this Agreement remains materially
unchanged.
Section
6.10 Remedies.
The parties hereto acknowledge and agree that upon any breach by
Executive of his obligations under Article III hereof, the
Corporation will have no adequate remedy at law, and accordingly
will be entitled to specific performance and other appropriate
injunctive and equitable relief. No remedy set forth in this
Agreement or otherwise conferred upon or reserved to any Party
shall be considered exclusive of any other remedy available to any Party, but
the same shall be distinct, separate and cumulative and may be
exercised from time to time as often as occasion may arise or as
may be deemed expedient.
Section
6.11 Counterparts.
This Agreement may be executed in multiple counterparts, each of
which will be deemed an original, and all of which together will
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
|
|
7
IN WITNESS WHEREOF,
the Corporation and Executive have
caused this Agreement to be executed on the day and year indicated
below to be effective on the day and year first written
above.
|
|
EXECUTIVE:
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxx Xxxxxx
|
|
|
|
|
|
|
|
CORPORATION:
|
|
|
|
|
|
|
|
|
|
WEED,
Inc., a Nevada corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized
Signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Print Name |
|
|
