Exhibit 10.11
EMPLOYMENT AGREEMENT
This Agreement is made as of March 25, 1997, by and between DIAMOND
WALNUT GROWERS, INC., acting through its Board of Directors, (hereinafter
referred to as "Employer") and XXXXXXX XXXXXX (hereinafter referred to as
"Employee").
Employer wishes to employ Xxxxxxx Xxxxxx, and Xx. Xxxxxx is willing to
accept such employment on a full-time basis upon the terms and conditions set
forth in this Agreement.
Accordingly, in consideration of the promises and mutual covenants
contained in this Agreement and the consideration set forth below, Employer and
Xxxxxxx Xxxxxx hereby agree as follows:
1. Terms and Duties.
1.1 Term of Employment. The employment of Employee under this
Agreement shall be indefinite and is terminable as more particularly set forth
in Article 5 "Termination."
1.2 Location. Employee's location of employment shall be in Stockton,
California.
1.3 Position and Primary Responsibility. Employee shall serve as the
Employer's President/Chief Executive Officer, subject to annual election by the
Board of Directors. Employee's responsibilities may be changed at any time if
the Employer believes, in its sole discretion, that such a change would be in
its best interests. Employee shall report directly to the Employer's Board of
Directors.
1.4 Exclusivity. During the term of his employment, Employee shall
devote his full time, attention, energies and best efforts exclusively to the
performance of his duties for and on behalf of the Employer.
2. Compensation.
2.1 Base Salary. Employee shall receive a base salary of Sixteen
Thousand Six Hundred Sixty-Seven Dollars ($16,667.00) per month.
2.2 Incentive Compensation. Employee shall be eligible to be
considered for incentive compensation as determined by the Board of Directors.
Incentive compensation shall be based on specific performance criteria, which
shall be established in writing by the Employer. Employee shall not be entitled
to any incentive compensation of any kind for any anniversary year of employment
which he does not complete in full.
2.3 Payment. All compensation to Employee shall be paid in accordance
with all relevant Employer directives, rules and regulations and cost accounting
policies in effect from time to time and shall be subject to all applicable
employment and withholding taxes. Employee shall be responsible for any taxes
resulting from the determination that any portion of
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the benefits provided to Employee under this Agreement were to reimburse for
personal as opposed to business expenses. Employee shall hold the Employer
harmless for any complaints, claims or liabilities, including interest or
penalties, arising from Employee's failure to pay any taxes owed by Employee.
3. Other Employment Benefits.
3.1 Commencing on March 25, 1997, Employee shall be provided with
medical insurance under the Employer's Executive Medical Benefits plan.
3.2 Employee shall be entitled to receive reimbursement for mileage
expenses while using his personal vehicle for Employer business (excluding
travel to and from his home and workplace).
3.3 Subject to the maximum accrual limit set forth below, Employee
will accrue for each full year of employment a total of four (4) weeks of paid
time off. Paid time off will be accumulated as set forth in the Company's
policies. However, in no event shall Employee accrue paid time off benefits in
excess of eight (8) weeks. Once Employee has accrued eight (8) weeks of paid
time off, further accrual shall cease until such time as Employee uses already
accrued paid time off.
4. Additional Obligations of Employee During and After Employment.
4.1 Noncompetition. So long as Employee is employed by Employer,
Employee will engage in no other business activities directly or indirectly
which are or may be competitive or which might place Employee in a competing
position to that of Employer or any affiliated or subsidiary company of Employer
without the written consent of the Board of Directors of Employer.
4.2 Records. All records, files, documents and the like, or abstracts,
summaries or copies thereof, relating to the business of Employer or the
business of any of Employer's subsidiary or affiliated companies, which Employer
or Employee shall prepare or use or come into contract with, shall remain the
sole property of Employer or the affiliated or subsidiary company, as the case
may be, and shall not be removed from the premises without the written consent
of Employer, and shall be promptly returned to Employer upon termination of
employment.
4.3 Customers of Employer. If Employee personally or through any
employees or departments under Employee's direction has been responsible for
and/or participated in any contracts, assignments, or follow-ons to such
contracts or assignments for customers of Employer in the normal course of
Employer's business, and/or if proposals to engage in such contracts and/or
assignments have been submitted or actively solicited by Employer within two (2)
years prior to the date of termination, Employee shall not solicit, provide
services or information to, work for, provide consulting services to, or in any
way be engaged by any such customer for a period of one (1) year after
termination of employment hereunder. Employee understands, acknowledges, and
agrees that such customers are developed and maintained by Employer through the
use of confidential, proprietary, and/or trade secret information to which
Employee may have access during his employment term.
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4.4 Competitors of Employer. Employee acknowledges that he has
acquired and will acquire knowledge regarding confidential, proprietary and/or
trade secret information in the course of performing his responsibilities for
Employer, and Employee further acknowledges that such knowledge and information
is the sale and exclusive property of Employer. Employee recognizes that
disclosure of such knowledge and information, or use of such knowledge and
information, to or by a competitor could cause serious and irreparable harm to
Employer. Employee therefore agrees that he shall not accept employment with,
nor provide any form of service for, any company engaged in nut processing or
related businesses either during his employment with Employer or within two (2)
years after the termination of his employment with Employer.
4.5 In addition to the remedies provided in Article 8 ("Arbitration"),
Employer shall be entitled to equitable relief, including temporary and final
injunctive relief, to enforce the terms of this Article 4 ("Additional
Obligations of Employee During and After Employment").
5. Termination.
5.1 Termination of Employment by Employer. The Employer may terminate
Employee's employment at any time with or without cause during the term of this
Agreement.
5.2 Termination of Employment by Employee. Employee may terminate his
employment with the Employer at any time, with or without cause, during the term
of this Agreement. However, Employee specifically agrees to provide a minimum of
sixty (60) days' written notice to the Employer prior to terminating his
employment. Employee shall be entitled to convert Company insurance plans in
accordance with applicable federal and state laws upon such termination.
5.3 Effect of Termination. Except as otherwise provided herein,
termination of employment shall terminate all obligations of the Employer
pursuant to this Agreement. Termination of employment shall result in immediate
termination of Employee's employment term and of all obligations by the Employer
to provide compensation and benefits.
5.4 Severance Upon Termination by Employer. Employer shall not be
required to provide any notice, or pay in lieu of notice, if Employer elects to
terminate the employment of Employee. Except as provided below, in the event
that the Employer terminates the employment of Employee, Employee shall be
entitled to a severance package which shall entitle Employee to a maximum of
twelve (12) months of salary continuation. The severance package will include
continuation of the regular monthly base rate of compensation and continuation
of health, dental and vision insurance benefits for the period set forth below
or until such time as Employee secures new employment, whichever occurs sooner.
The severance package shall also include outplacement services in an amount not
to exceed Ten Thousand Dollars ($10,000.00). Employee shall not be entitled to
any severance benefits if his employment is terminated by the Employer for
Employee's willful breach of duty in the course of his employment, or in the
case of his habitual neglect of his duty or continued incapacity to perform it,
as determined by the Employer. The maximum value of the severance package shall
be twelve (12) months.
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6. Entire Agreement.
6.1 This Agreement constitutes the entire understanding of the parties
hereto and supersedes any and all prior agreements and understandings, whether
oral or written, between the parties. This Agreement may be modified only by
agreement in writing executed by Employee and Employer referring to the
particular provisions hereof being modified. This Agreement may not be modified
by any implied understanding or agreement, notwithstanding any statements or
conduct of the parties occurring subsequent to the formation of this Agreement.
7. Miscellaneous.
7.1 Interpretation of this Agreement. This Agreement shall be
interpreted in accordance with the plain meaning of its terms and not strictly
for or against either party hereto.
7.2 Variation. Any variation in salary or conditions which may occur
after the effective date of this Agreement shall not constitute a new agreement,
but the terms and conditions of this Agreement, except as to such variation,
shall continue in force.
7.3 Unenforceability. The unenforceability or invalidity of any
paragraph or subparagraph, or portion thereof, of this Agreement shall not
affect the enforceability and validity of the balance of this Agreement.
7.4 Collateral Documents. Each party hereto shall make, execute and
deliver such other instruments or documents as may be reasonably required in
order to effectuate the purposes of this Agreement.
7.5 Written Policies and Procedures. The written policies and
procedures of Employer, where not in contradiction to or superseded by this
Agreement, as from time to time amended shall be binding upon and adhered to by
Employee. Copies of said policies and procedures are available to Employee in
the offices of Employer from time to time designated for such purpose, and
Employee shall be responsible at all times to review said policies before acting
on behalf of or as an agent of Employer; and Employee hereby acknowledges the
duty to examine said policies and procedures in any case of doubt as to
Employee's conduct, rights or obligations. Nothing in said written policies and
procedures of Employer shall in any way be construed to alter, amend, or modify
the "at will" nature of Employee's employment as described in Article 6
hereinabove.
7.6 Notices. Any notices to be given hereunder to any party must be in
writing and must be effected by personal delivery or by registered or certified
mail, postage pre-paid with return receipt requested. Mailed notices shall be
directed to the parties at the addresses appearing below. Each party may change
his address by giving written notice in accordance with this section. Notices
delivered personally shall be deemed communicated as of actual receipt; mailed
notices shall be deemed communicated as of three (3) business days after deposit
with the United States Postal Service.
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EMPLOYER: EMPLOYEE:
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Diamond Walnut Growers, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
P.O. Box 1277
Xxxxxxxx, Xxxxxxxxxx 00000
7.7 Assignment. None of the obligations or duties or rights or
benefits arising under this Agreement may be assigned or delegated by Employee,
in whole or in part, without the prior written consent of the Employer.
8. Arbitration.
8.1 In the event there is any dispute arising out of Employee's
employment with the Employer, the termination of that employment, or the terms
of this Agreement, including without limitation any dispute involving
allegations of breach of contract, breach of the covenant of good faith and fair
dealing or employment discrimination under state or federal law, Employee and
the Employer agree to submit such dispute(s) to final and binding arbitration
pursuant to the provisions of the Federal Arbitration Act, or any successor or
replacement statutes, upon a request submitted in writing to the other party
within thirty (30) days of the date the dispute arose or the termination of
Employee's employment, whichever occurs first. The failure to timely request
arbitration shall constitute a complete waiver of all rights to raise any claims
in any forum arising out of any dispute described herein. The limitations period
set forth in this paragraph shall not be subject to tolling, equitable or
otherwise.
8.2 The parties agree that arbitration shall be the exclusive remedy
for any dispute described above. The parties further agree that, except as
specifically provided otherwise herein, in arbitration the exclusive remedy for
any alleged violation of the terms, conditions or covenants of employment,
including this Agreement, and for any harm alleged in connection with any
dispute subject to arbitration hereunder shall be a money award not to exceed
the amount of actual contract damages less any proper offset for mitigation of
such damages, and the parties shall not be entitled to any other remedy at law
or in equity including but not limited to other money damages, emotion distress
damages, punitive damages, specific performance and/or injunctive relief.
8.3 Prior to submitting any dispute to arbitration, the parties shall
attempt in good faith to settle such dispute themselves. To that end, the
parties agree that mediation shall be a necessary precondition to arbitration.
Mediation shall be conducted by a neutral mediator mutually acceptable to the
parties.
8.4 In the event that either party seeks arbitration under this
Agreement, the arbitrator shall be selected from a list of seven (7) names
provided by the American Arbitration Association. The arbitrator shall be
selected by the parties by alternately striking names from the list. The last
name remaining on the list shall be the arbitrator selected to resolve the
dispute.
8.5 The arbitrator shall not have the power to alter, amend or modify
any of the provisions of this Agreement. The arbitrator shall be authorized to
exercise only the powers
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specifically enumerated by this Agreement and to decide the dispute in
accordance with governing principles of law and equity.
8.6 Each party shall bear its own costs and expenses in connection
with any arbitration under this Agreement.
8.7 Nothing contained in this Agreement shall be construed to abridge
any of Employee's rights to seek workers' compensation benefits.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth above.
/s/ Xxxxxxx X. Xxxxxx 4/11/97
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/s/ Xxxx X. Xxxxxxx 4/15/97
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ON BEHALF OF DIAMOND
WALNUT GROWERS, INC.
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