EMPLOYMENT AGREEMENT
Exhibit10.5
This Employment Agreement (“Agreement”) is between SunOpta Inc. (such entity together with all past, present, and future parents, divisions, operating companies, subsidiaries, and affiliates are referred to collectively herein as “Company”) and Xxxxxx Xxxxxxxxx (“Employee”).
| 1. |
EMPLOYMENT |
This Agreement commences March 13,
2017 (“Effective Date”), and shall continue in effect until terminated by either
party upon two month’s written notice. Employment during the course of the
Agreement shall be on an “at-will” basis, meaning that either party has the
right to terminate the agreement for any reason, or for no reason, upon two
month’s written notice. The Company also has the right to terminate the
Agreement immediately for Cause (as defined in Section 7 below).
| 2. |
TITLE AND EXCLUSIVE SERVICES |
| (a) |
Title and Duties. Employee’s title is Chief Information Officer, and Employee will perform job duties that are usual and customary for this position. |
| (b) |
Exclusive Services. Employee shall not be employed or render services elsewhere during the employment period; provided, however, that Employee may participate in professional, civic or charitable organizations so long as such participation is unpaid and does not interfere with the performance of Employee’s duties. |
| 3. |
COMPENSATION AND BENEFITS |
| (a) |
Base Salary. Employee shall be paid an annualized salary of Three Hundred Fifteen Thousand Dollars ($315,000.00) (“Base Salary”). The Base Salary shall be payable in accordance with the Company’s regular payroll practices and pursuant to Company policy, which may be amended from time to time. Employee is also eligible for annual salary increases commensurate with Company policy thereafter. |
| (b) |
Short Term Incentive. Eligibility for the annual Short Term Incentive is based upon a forty percent (40%) target of Employee base annual salary as of April 1 of each year and is pursuant to the terms of the Short Term Incentive Plan Document which operates at the discretion of Company and its Board of Directors, and is not a guarantee of compensation. For the 2017 Short Term Incentive Plan year, Employee will be eligible for a prorated award calculated from the month of the Effective Date and a payment guarantee at target. |
| (c) |
Long Term Incentive. Employee is eligible for participation in the Long Term Incentive Plan at a forty percent (40%) incentive target pursuant to the terms of the Long Term Incentive Plan Document which operates at the discretion of Company and its Board of Directors, and is not a guarantee of compensation. |
| (d) |
Employment Benefit Plans. Employee may participate in all employee welfare benefit plans in which other similarly situated employees may participate, according to the terms of applicable policies and as stated in the Employee Benefits Guide. These benefits include but are not limited to medical, dental, vision, short term disability, long term disability, life insurance, 401(k) and the Employee Stock Purchase Plan. |
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| (e) |
Vacation. Employee is eligible for Paid Time Off of five weeks (200 hours) per calendar year, prorated as necessary, and subject to the Employee Guide. |
| (f) |
Expenses. Company will reimburse Employee for business expenses consistent with past practices, and pursuant to Company policy. Any reimbursement that would constitute nonqualified deferred compensation shall be paid pursuant to Section 409A. |
| (g) |
Taxes and Deductions. Compensation pursuant to this section shall in all cases be less applicable payroll taxes and other deductions. |
| 4. |
NONDISCLOSURE OF CONFIDENTIAL INFORMATION |
| (a) |
Company has provided and will continue to provide to Employee confidential information and trade secrets including but not limited to Company’s marketing plans, growth strategies, target lists, performance goals, operational and programming strategies, specialized training expertise, employee development, engineering information, sales information, client and customer lists, business and employment contracts, representation agreements, pricing and ratings information, production and cost data, compensation and fee information, strategic business plans, budgets, financial statements, technological initiatives, proprietary research or software purchased or developed by Company, content distribution, and other information Company treats as confidential or proprietary (collectively the “Confidential Information”). Employee acknowledges that such Confidential Information is proprietary and agrees not to disclose it to anyone outside Company except to the extent that: (i) it is necessary in connection with performing Employee’s duties; or (ii) Employee is required by court order to disclose the Confidential Information, provided that Employee shall promptly inform Company, shall cooperate with Company to obtain a protective order or otherwise restrict disclosure, and shall only disclose Confidential Information to the minimum extent necessary to comply with the court order. Employee agrees to never use trade secrets in competing, directly or indirectly, with Company. When employment ends, Employee will immediately return all Confidential Information to Company. |
| (b) |
The terms of this Section 4 shall survive the expiration or termination of this Agreement for any reason. |
| 5. |
NON-INTERFERENCE WITH COMPANY EMPLOYEES |
| (a) |
To further preserve Company’s Confidential Information, goodwill and legitimate business interests, during employment and for twelve (12) months after employment ends (the “Non- Interference Period”), Employee will not, directly or indirectly, hire, engage or solicit any current employee of Company with whom Employee had contact, supervised, or received Confidential Information about within the twelve (12) months prior to Employee’s termination, to provide services elsewhere or cease providing services to Company. |
| (b) |
The terms of this Section 5 shall survive the expiration or termination of this Agreement for any reason. |
| 6. |
NON-SOLICITATION OF CUSTOMERS |
| (a) |
To further preserve Company’s Confidential Information, goodwill and legitimate business interests, for twelve (12) months after employment ends (the “Non-Solicitation Period”),Employee will not, directly or indirectly, solicit Company’s customers with whom Employee engaged or had contact, or received Confidential Information about within the twelve (12) months prior to Employee’s termination. |
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| (b) |
The terms of this Section 6 shall survive the expiration or termination of this Agreement for any reason. |
| 7. |
TERMINATION |
In the event Employee is involuntarily terminated without cause, the Company Severance Pay Plan will apply. “Cause” shall mean (I) the commission of an act that constitutes a felony under the laws of the United States or any individual State or under the laws of a foreign country, (ii) the commission of an act of fraud, embezzlement, sexual harassment, dishonesty, theft, or an intentional act that results in a material loss, damage or injury to the Company; (iii) the commission of an act of moral turpitude which is materially injurious to the Company; or (iv) the failure of Employee to participate in the reasonable and lawful business activities of the Company in a manner consistent with his job duties, provided such failure continues for more than ten days after written notice to the Employee specifying failure in reasonable detail.
| 8. |
CONFLICTS OF INTEREST |
Employee acknowledges familiarity with Company policies on conflicts of interest, and warrants that Employee will fully comply with such policies. Employee shall certify compliance with the conflicts of interest policy from time to time as requested by the Company. Employee shall notify Company immediately in writing if there is any attempt to induce Employee to violate the conflicts of interest policy.
| 9. |
INDEMNIFICATION |
Company shall defend and indemnify Employee for acts committed in the course and scope of employment. Employee shall indemnify Company for claims of any type concerning Employee’s conduct outside the scope of employment, or the breach by Employee of this Agreement.
| 10. |
DISPUTE RESOLUTION |
| (a) |
Arbitration. This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce. This Agreement applies to any dispute arising out of or related to Employee's employment with Company or termination of employment. Nothing contained in this Agreement shall be construed to prevent or excuse Employee from using the Company’s existing internal procedures for resolution of complaints, and this Agreement is not intended to be a substitute for the use of such procedures. Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law, and therefore this Agreement requires all such disputes to be resolved only by an arbitrator through a final and binding individual arbitration proceeding and not by way of court or jury trial or class action. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, including the enforceability, revocability or validity of this Agreement or any portion of this Agreement. This Agreement also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, and state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims (excluding workers compensation, state disability insurance and unemployment insurance claims). Claims may be brought before an administrative agency but only to the extent applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (xxx.xxxx.xxx), the U.S. Department of Labor (xxx.xxx.xxx), the National Labor Relations Board (xxx.xxxx.xxx), the Office of Federal Contract Compliance Programs (xxx.xxx.xxx/xxx/xxxxx). Nothing in this Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. Disputes that may not be subject to pre-dispute arbitration agreement as provided by the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Agreement. |
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| (b) |
Injunctive Relief. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief. |
| (c) |
This Section 10 is the full and complete agreement relating to the formal resolution of employment-related disputes. In the event any portion of this Section 10 is deemed unenforceable, the remainder of this Agreement will be enforceable. |
| (d) |
This Section 10 shall survive the expiration or termination of this Agreement for any reason. |
| Employee Initials: ________ | Company Initials: __________ |
| 11. |
MISCELLANEOUS |
This Agreement contains the entire agreement of the parties and supersedes any prior written or oral agreements or understandings between the parties. No modification shall be valid unless in writing and signed by the parties, relating to the subject matter of this Agreement, unless otherwise noted herein.
If any provision of this Agreement shall, for any reason, be held unenforceable, such unenforceability shall not affect the remaining provisions hereof, except as specifically noted in this Agreement, or the application of such provisions to other persons or circumstances, all of which shall be enforced to the greatest extent permitted by law.
Company and Employee agree that the restrictions contained in Section 4, 5, and 6, are material terms of this Agreement, reasonable in scope and duration and are necessary to protect Company’s Confidential Information, goodwill, specialized training expertise, and legitimate business interests. If any restrictive covenant is held to be unenforceable because of the scope, duration or geographic area, the parties agree that the court or arbitrator may reduce the scope, duration, or geographic area, and in its reduced form, such provision shall be enforceable. Should Employee violate the provisions of Sections 4, 5, or 6, then in addition to all other remedies available to Company, the duration of these covenants shall be extended for the period of time when Employee began such violation until Employee permanently ceases such violation. Employee agrees that no bond will be required if an injunction is sought to enforce any of the covenants previously set forth herein.
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The headings in this Agreement are inserted for convenience of reference only and shall not control the meaning of any provision hereof.
This Agreement shall be governed in all respects by the internal laws of the State of Minnesota without regard to conflict of law provisions. Each of the Employee and the Company hereby consents to the personal jurisdiction of the state and federal courts located in Hennepin County, Minnesota for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants. Any arbitration proceeding arising from or relating to this Agreement shall take place in Hennepin County, Minnesota.
Upon full execution by all parties, this Agreement shall be effective on the Effective Date in Section 1.
EMPLOYEE:
| /s/ Xxxxxx Xxxxxxxxx | Date: February 22, 2017 |
| Xxxxxx Xxxxxxxxx |
COMPANY:
| /s/ Xxxxxxxx Xxxxxxx | Date: February 22, 2017 |
| Xxxxxxxx Xxxxxxx | |
| Chief Human Resources Officer |
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