EMPLOYMENT AGREEMENT
Xxxxxxx Xxxx - AgriBioTech, Inc.
THIS EMPLOYMENT AGREEMENT (the "Agreement") sets forth the agreement
effective July 1, 1999 by and between XXXXXXX XXXX (hereinafter referred to as
"Xxxx") and AgriBioTech, Inc., a Nevada corporation, 000 Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxx Xxxxxx 00000 (hereinafter referred to as "ABT").
WITNESSETH
WHEREAS, Xxxx has experience, talents and training of use to ABT, and ABT
desires to employ Xxxx; and
WHEREAS, Xxxx desires to accept such employment with ABT; and
WHEREAS, Xxxx and ABT desire to set forth their employment relationship in
a written agreement.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1.00 - EMPLOYMENT
1.01 EMPLOYMENT. ABT hereby offers to employ Xxxx upon the terms and
conditions hereinafter set forth, and Xxxx accepts such offer.
1.02 TITLE AND DUTIES. Xxxx'x initial title shall be Chief Executive
Officer, and Xxxx shall report to the Board of Directors. Xxxx'x primary duties
shall be the senior officer and chief executive officer of ABT. Xxxx
acknowledges that ABT may change his duties, reporting relationship and/or title
from time to time.
ARTICLE 2.00 - TERM AND TERMINATION
2.01 TERM. ABT agrees to employ Xxxx in the above position commencing on
July 1, 1999 and continuing until terminated, as provided herein.
2.02 TERMINATION. This Agreement may be terminated as follows:
A. Termination by Xxxx. This Agreement may be terminated upon no less than
ninety working days notice to ABT by Xxxx. However, upon receipt of such
notice, ABT may elect to shorten this period to no less than two weeks
and/or may also elect to pay Xxxx two weeks of pay and immediately
terminate this Agreement. In the event Xxxx elects to terminate this
Agreement, ABT has no obligation to make any separation or severance
payments to Xxxx, and Xxxx has no rights to exercise any stock options
after the termination of this Agreement.
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X. Xxxx Death. This Agreement shall terminate immediately upon the death of
Xxxx, in which event, Xxxx'x heirs may exercise options which become vested
within one year of the termination as specified in the Option Agreement.
X. Xxxx Disability. This Agreement shall terminate upon ten (10) working days
notice by ABT if, in the opinion of ABT, Xxxx becomes substantially unable
to perform services required pursuant to this Agreement because of mental,
emotional or physical illness or injury, provided, however, that ABT acts,
in accordance with the provisions of the Americas with Disabilities Act,
the Family and Medical Leave Act, and any other relevant state or federal
law.
D. ABT Termination Without Cause. ABT may terminate this Agreement (and the
employment relationship between ABT and Xxxx) without cause and for any
reason or for no reason upon at least ten (10) working days notice. In this
event, Xxxx:
1. Will immediately be vested in those stock options referenced in
Section 3.02 which would otherwise become vested on the next
anniversary of employment following such termination;
2. Will receive his full salary as set forth in Section 3.01 (payable on
ABT's regular paydays) for a period of one year ; and
3. Will be entitled to receive applicable bonus and accrued vacation,
prorated for the actual period worked, if any is due;
4. Will not be entitled to receive any benefits, except that medical
insurance will be available through COBRA, upon Xxxx payment of COBRA
premiums.
F. Termination with Cause. ABT may terminate this Agreement immediately with
Cause. "Cause" means:
1) Xxxx'x failure or refusal to adequately perform the employment duties
hereunder or assigned to Xxxx by Xxxx'x supervisors;
2) the commission by Xxxx of any willful or intentional act which
reasonably could be expected to injure the reputation, business or
business relationships of ABT and/or Xxxx, and/or create a legal
exposure for ABT as a result of Xxxx' wrongdoing;
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3) Xxxx'x violation of ABT's Codes of Conduct or other policies, as set
forth by ABT in its Employee Manual or other company policies as
issued from time to time;
4) Xxxx'x conviction of a felony or of any crime involving
misrepresentation, moral turpitude or fraud; or
5) Xxxx'x breach of or non-adherence to Xxxx' other covenants hereunder
or other agreements with ABT, and the failure to cure said breach or
non-adherence within thirty (30) days of written notice thereof from
ABT
F. Termination After Change of Control. In the event that within two years
after a Change of Control, either Xxxx'x employment is terminated without
cause, or Xxxx'x position or employment duties are adversely affected or
changed (which shall be determined by Xxxx in his sole discretion and Xxxx
shall terminate his employment within sixty days of such affect or change),
then ABT upon Xxxx'x request, shall pay Xxxx x xxxxxxxxx payment equal to
three years of Xxxx'x then annual salary minus $1.
A "Change of Control" shall mean either:
(i) Approval by ABT's shareholders of (x) a merger or consolidation in
which ABT is not the surviving corporation and/or which results in any
reclassification or reorganization of the then outstanding Common Stock,
(y) a sale of all or substantially all of ABT's assets or (z) a plan of
liquidation or dissolution of ABT; or
(ii) the acquisition of at least 50% of the issued and outstanding shares
of the Common Stock by a sinlge person or affiliated group of persons.
G. Termination of this Agreement shall not relieve the parties hereto of any
rights or obligations which specifically survive the termination of this
Agreement.
2.03 XXXX'X OBLIGATIONS AT TERMINATION. At termination of this Agreement
Xxxx shall:
A. Return all ABT equipment, documents, computerized data or programs,
and any other ABT property or material in the possession or control of
Xxxx;
B. Abide by the provisions of this Agreement which survive termination of
this Agreement, including but not limited to, paragraph 4.02(E),
Articles 5.00 and 6.00; and
C. Abide by any other ABT policies governing terminated employees, as set
forth from time to time in ABT's employee manual or other ABT
policies.
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ARTICLE 3.00 - COMPENSATION
3.01 SALARY. ABT shall pay Xxxx, as consideration for his services, an
initial salary equal to an annual rate of $150,000 Xxxx shall be eligible for an
increase in salary after annual review according to ABT policies and procedures.
Such increase, if any, will be determined by ABT, in its sole discretion and
there is no assurance that the salary will increase. The salary will be payable
in equal bi-weekly installments, less deductions for income tax and FICA
withholding and any other deductions as authorized by Xxxx or required by law.
3.02 STOCK OPTIONS. The parties understand and agree that ABT has induced
Xxxx to accept this employment due, in part to, the providing by ABT to Xxxx of
Non-Qualified Stock Options to purchase 500,000 shares of ABT's common stock at
a price of $ 6.125 per share, the closing price of ABT common stock on July 1,
1999. Ownership in said NQS Options shall vest on the following schedule,
subject to Xxxx continuing employment and/or continuing as a Director of ABT on
the vesting date (unless otherwise set forth in Article 2.02 (B) and (E):
A) 100,000 vest at the signing of this Agreement;
B) 100,000 vest on the first anniversary of this Agreement;
C) 100,000 vest on the second anniversary of this Agreement;
D) 100,000 vest on the third anniversary of this Agreement; and
E) 100,000 vest on the fourth anniversary of this Agreement.
3.03 VACATION. During the term of this Agreement, Xxxx shall be eligible
for four weeks per year of vacation, during which time Xxxx'x compensation shall
be paid in full, provided, however, that Xxxx will be granted an accrual for two
(2) weeks of vacation upon commencement of employment and will be eligible to
take any accrued vacation upon commencement of employment.
3.04 BENEFITS. During the term of this Agreement, Xxxx shall be eligible to
receive insurance and other employee benefits generally available to employees
of ABT pursuant to the terms of the various employee benefit plans.
3.05 BONUS In order to reflect any outstanding contribution to ABT by Xxxx,
ABT may pay Xxxx, in addition to the compensation for services described in
Section 3.01 above, a bonus in an amount determined by the Compensation
Committee of ABT in its sole discretion.
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ARTICLE 4.00 - SPECIFIC OBLIGATIONS OF THE PARTIES
4.01 ABT'S OBLIGATIONS. ABT shall provide Xxxx with and pay Xxxx'x expenses
for the following:
A. Such equipment, materials and supplies as Xxxx reasonably requires for
the performance of his services;
B. Costs, including meals, lodging, and transportation (including
reimbursement for private aircraft hired by Xxxx pursuant to the Board
Resolution of May 11,1999) reasonably incurred by Xxxx to fulfill his
duties and responsibilities to ABT; and
C. Expenses for professional dues, tuition, publications, and continuing
professional education, pursuant to ABT's policies for such expenses.
4.02 XXXX'X OBLIGATIONS. Xxxx agrees that during the term of this
Agreement, he shall:
A. Faithfully and to the best of his ability and skill serve ABT and
perform his duties pursuant to this Agreement;
B. Maintain records in the manner established by ABT;
C. Keep current all records, reports, insurance records and clerical work
required by ABT; and
D. Abide by the practices, policies and codes of conduct set forth in
ABT's policies and practices, as disseminated from time to time,
except as expressly modified in this Agreement.
ARTICLE 5.00 - COVENANTS
5.01 COVENANT NOT TO COMPETE. ABT and Xxxx acknowledge and confirm that
Xxxx shall not compete with ABT while employed by ABT or for a period of two
years after employment or service as a Director ceases (the "Non-Compete
Period"). "Compete" shall mean having any relationship with any entity whose
primary business(es) includes turf grass, forage grass or alfalfa seed products
in any geographic area serviced by ABT or into which ABT has plans to expand
during Xxxx'x employment. This covenant in this Agreement does not supercede or
change any agreements not to compete contained in any other agreements Xxxx may
have with ABT, in particular, agreements entered into in connection with the
purchase of Lofts by ABT.
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5.02 COVENANT FOR PROTECTION OF CONFIDENTIAL AND/OR PROPRIETARY
INFORMATION. ABT and Xxxx recognize that during the course of Xxxx'x employment,
Xxxx will have access to information and biomaterials which ABT and its
affiliated companies deem proprietary and/or confidential (hereinafter referred
to as "Information").
In order to protect the Information, during the period of Xxxx'x employment
with ABT and thereafter, for an unlimited period, Xxxx shall not disclose
Information he/she receives or has received from ABT or its affiliated companies
that is proprietary and/or confidential in nature, including, but not by way of
limitation, Information marked PROPRIETARY or CONFIDENTIAL or STRICTLY PRIVATE
or INTERNAL DATA, to any other person, firm or company, or use it for his own
benefit except as provided herein, and shall use such care to safeguard the
information as is set forth in ABT's Employee Manual or other policies, and, in
any event, shall use no less stringent degree of care to avoid disclosure or use
of such Information than Xxxx employs with respect to his own proprietary and/or
confidential information which he does not wish to be disseminated, published or
disclosed.
The parties hereto agree that Information shall not be deemed proprietary
and/or confidential and Xxxx shall have no obligation with respect to any such
Information which:
A. Is or becomes publicly known through no wrongful act of Xxxx;
B. Is furnished to a third party by ABT and its affiliated companies
without a similar restriction on the third party's rights; or
C. Is approved for release by written authorization of ABT or its
affiliated companies.
In the event Information in Xxxx' possession should be lost, stolen or
otherwise compromised, Xxxx shall promptly notify ABT by phone, and follow up
with a detailed report in writing within ten (10) days. Xxxx shall then follow
ABT's reasonable requests to recover such information.
Xxxx shall return at any time upon ABT's request, and/or upon termination
of this Agreement, all tangible forms of Information including biomaterials,
documents, drawings, computerized data or programs, specifications, devices,
models or any other material.
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As used in this Agreement, the term "biomaterials" includes, but is not
limited to, plants, plant parts, microorganisms, cell cultures, organelles or
other subcellular components, viruses, DNA or DNA-containing material, RNA or
RNA-containing material, oligonucleotides, proteins, peptides, subparts of any
of the foregoing, and products made from any of the foregoing.
5.03 ENFORCEMENT OF COVENANTS; NOTIFICATION TO NEW EMPLOYER. Xxxx and ABT
agree that the periods set forth in this Article 5.0 are reasonable and further
that the periods set forth in this Article 5.00 do not terminate at the
termination of this Agreement, but shall continue throughout any period of
affiliation with ABT, and for any stated period thereafter. Xxxx understands and
agrees that ABT may inform any new employer of Xxxx of the existence and terms
of the covenants set forth in this Agreement.
5.04 DEFINITION OF AFFILIATION. Affiliation, as used in this Article, shall
mean any proprietary, employment or fiduciary relationship of Xxxx with ABT and
its affiliated companies, including, but not limited to, the position of Xxxx as
director, officer or consultant of ABT or its affiliated companies.
5.05 SURVIVAL. This Article 5.00, and its obligations shall survive any
termination of this Agreement.
ARTICLE 6.00 - ASSIGNMENT OF INTELLECTUAL PROPERTY.
6.01 DISCLOSURE. Xxxx will disclose promptly to ABT all ideas, inventions,
discoveries and improvements which are conceived or made by Xxxx, either alone
or with others, during the period of employment by ABT.
6.02 ASSIGNMENT. Xxxx will assign to ABT, royalty-free, all ideas,
inventions, discoveries, improvements, and research results or products
(including biomaterials), whether patentable or not and whether maintained as
trade secrets or not, which are conceived or made by Xxxx, either alone or with
others, during Xxxx'x employment by ABT, to the extent such assignment is
permitted under the applicable law.
6.03 ASSISTANCE IN OBTAINING PROTECTION. Xxxx will assist ABT (at ABT's
expense) in obtaining patent, PVP or other intellectual property protection,
including assistance in the form of execution of documents as requested by ABT,
with respect to all ideas, inventions, discoveries, improvements and research
results or products which Xxxx has a duty to assign under this Agreement-
6.04 OBLIGATIONS AFTER TERMINATION CONTINUE. Xxxx agrees that upon any
termination of Xxxx'x employment, Xxxx'x obligation and duties incurred during
the time of employment under this Article shall continue and be binding upon
Xxxx'x assigns, heirs, executors, administrators or other legal representatives.
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6.05 THIRD PARTY INFORMATION. Xxxx is aware that Xxxx should not disclose
to ABT information if any, which Xxxx is bound by prior agreement with any
former employer or other third party not to so disclose. Xxxx hereby states that
Xxxx has not made any such disclosure to ABT and agrees not to make any such
disclosure to ABT in the future.
ARTICLE 7.00 - ADDITIONAL OBLIGATIONS OF XXXX.
7.01 UNFAVORABLE STATEMENTS. During and after termination of this
Agreement, Xxxx agrees not to directly or indirectly defame, disparage, libel or
otherwise convey an unjust or unfavorable impression of ABT or the business or
businesses operated by ABT and its subsidiaries.
7.02 COOPERATION IN CLAIMS. During and after termination of this Agreement,
Xxxx agrees to assist ABT in representing ABT's interests with respect to claims
and litigation brought by or against ABT arising during or relating to Xxxx'x
employment with ABT.
7.03 NONSOLICITATION. Xxxx agrees that during the term of his employment
with ABT and for a period of 2 years after termination of this Agreement, Xxxx
shall not interfere with ABT's employment and business relationships with ABT
employees, customers, vendors or other such affiliated entities, and that Xxxx
will not solicit any current employees of ABT to leave the employ of ABT.
7.04 SURVIVAL. This article 7.00 and its obligations shall survive any
termination of this Agreement.
ARTICLE 8.00 - INDEMNIFICATION.
A. Subject to 8B, and to the maximum extent allowed by Nevada law, ABT
shall indemnify, defend, and hold Xxxx harmless from and against any
and all costs, expenses, losses, claims, debts, demands, interest,
penalties, assessments, and/or deficiencies, including, without
limitation, attorney's fees, damages and/or judgments, with respect to
any and all civil and/or criminal claims, or threatened claims
asserted against Xxxx by any party in any country in connection with
or arising from Xxxx'x employment by ABT.
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B. The parties agree that:
1. ABT shall have no obligation to indemnify Xxxx for any acts committed
in bad faith, or which were the result of active and deliberate
dishonesty, or from which Xxxx gained a financial profit or other
advantage to which it is not legally entitled, it being further
understood by the parties that the mere allegations or charges of such
behavior shall not release ABT from its obligations to defend Xxxx;
2. Xxxx shall provide ABT with immediate notice upon learning of any
claim for which it is entitled to indemnification;
3. ABT shall have the right to select counsel to represent Xxxx;
4. Xxxx shall cooperate fully in the defense of such claims; and
ABT shall have the sole authority to settle or defend such claims.
ARTICLE 9.00 - DISPUTE RESOLUTION
9.01 NOTICE OF DISPUTE. Xxxx and ABT agree to make good faith efforts to
resolve any disputes under this Agreement (except as set forth in Article 8.02)
by giving the other party 30 days prior notice before commencing any legal
action regarding the Agreement. In the event such dispute is not resolved after
good faith efforts, ABT may, but is not required to, submit the dispute to
arbitration in Las Vegas in accordance with the rules of the American
Arbitration Association then in effect, and, if ABT does so, Xxxx agrees to such
arbitration as the exclusive remedy for the dispute. Judgment may be entered on
the arbitrator's award in any court having jurisdiction.
9.02. ENFORCEMENT OF COVENANTS. The parties agree that breach of Employee's
covenants in Articles 5.00, 6.00 and 7.00 will bring irreparable harm to ABT and
that monetary damages will not be sufficient to remedy any such harm. The breach
of these Articles may be enforced by specific performance or any available legal
or equitable remedy, including, but not by way of limitation, temporary
restraining orders or preliminary and permanent injunctions, and ABT and its
affiliated companies shall be entitled to recover from Xxxx all court costs and
reasonable attorney's fees incurred in enforcing these covenants. The remedies
hereunder shall not be exclusive of each other, but shall be cumulative
ABT may seek specific enforcement of these covenants without resort to the
informal dispute resolution provision of Article 8.01
9.03. ATTORNEY'S FEES. In the event of a dispute under this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and costs
expended in such action, including but not limited to, attorney's fees arising
from any arbitration proceeding.
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ARTICLE 10.00 - GENERAL MATTERS.
10.01 NEVADA LAW. This Agreement shall be governed by the laws of the State
of Nevada and shall be construed in accordance therewith.
10.02 NO WAIVER. No provision of this Agreement may be waived except by an
agreement in writing signed by the waiving party. A waiver of any term or
provision shall not be construed as waiver of any other term or provision.
10.03 BINDING EFFECT. This Agreement shall be binding upon the parties,
their heirs, executors, administrators, successors or assignees. The parties
agree to do any and all things necessary to effectuate the purpose of this
Agreement.
10.04 CONSTRUCTION. Throughout this Agreement, the singular shall include
the plural; the plural shall include the singular; and the masculine and neuter
shall include the feminine, wherever the context so requires.
10.05 TEXT TO CONTROL. The headings of articles and sections are included
solely for convenience of reference. If any conflict between any heading and the
text of this Agreement exists, the text shall control.
10.06 SEVERABILITY. If any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid for any reason, such invalidity
shall not affect the remaining provisions. On the contrary, such remaining
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such invalid provisions never had been inserted in this
Agreement.
10.07 COMPLETE AGREEMENT; AMENDMENT. This Agreement and the Non-Qualified
Stock Option Agreement of July 1, 1999 comprise the complete agreement between
the parties relating to the employment by ABT of Xxxx as Chief Executive Officer
and no prior agreements or representations survive this Agreement. This
Agreement may be amended, altered or revoked at any time, in whole or in part,
only by a written instrument setting forth such changes, signed by ABT and Xxxx.
10.08 NOTICES. All notices required to be given by this Agreement shall be
made in writing either by:
A. Personal delivery to the party requiring notice with written
confirmation of receipt; or
B. Mailing notice in the U.S. mails to the last known address of the
party requiring notice, which shall be the address shown on the
records of ABT for Xxxx, and the corporate headquarters of ABT for
ABT, attention Director of Human Resources, by certified mail, return
receipt requested.
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The effective date of the notice shall be the date of the written receipt
received upon delivery in Paragraph A above or four (4) days after the date the
notice was delivered to the U.S. mail as posted on the receipt in Paragraph B
above.
The parties hereby execute this Employment Agreement on the day and year
first written above.
Xxxxxxx Xxxx AGRIBIOTECH, INC.
/S/ Xxxxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Title: Senior VP
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