Employment Agreement by and between Imperial Nurseries, Inc. and Gregory Schaan January 1, 2001 as amended April 9, 2008
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Exhibit
10.35
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by
and between
Imperial
Nurseries, Inc.
and
Xxxxxxx
Xxxxxx
January
1, 2001
as
amended
April
9, 2008
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TABLE
OF CONTENTS
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Page
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ARTICLE
1.
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EMPLOYMENT
OF EMPLOYEE
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ARTICLE
2.
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DUTIES
OF EMPLOYEE
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Section
2.1
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Positions
and
Duties...................................................................................................................................................................................................................
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1
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Section
2.2
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Time
Devoted to
Work...............................................................................................................................................................................................................
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1
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Section
2.3
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Term
of
Employment...................................................................................................................................................................................................................
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1
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ARTICLE
3.
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PLACE
OF EMPLOYMENT
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Section
3.1
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Place
of
Employment...................................................................................................................................................................................................................
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2
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ARTICLE
4.
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COMPENSATION
OF EMPLOYEE
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Section
4.1
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Base
Salary...................................................................................................................................................................................................................................
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2
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Section
4.2
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Incentive
Compensation.............................................................................................................................................................................................................
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2
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Section
4.3
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Stock
Options...............................................................................................................................................................................................................................
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2
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Section
4.4
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Retirement
and Deferred
Compensation..................................................................................................................................................................................
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2
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Section
4.5
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Reimbursement
for Business
Expenses...................................................................................................................................................................................
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2
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ARTICLE
5.
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FRINGE
BENEFITS
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Section
5.1
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Employer
Employee Benefit
Plans............................................................................................................................................................................................
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3
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Section
5.2
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Motor
Vehicle..............................................................................................................................................................................................................................
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3
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Section
5.3
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Life
Insurance..............................................................................................................................................................................................................................
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3
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ARTICLE
6.
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TERMINATION
OF EMPLOYMENT
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Section
6.1
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Term
of
Employment...................................................................................................................................................................................................................
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3
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Section
6.2
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Extension
of
Employment...........................................................................................................................................................................................................
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3
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Section
6.3
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Termination
at Employee’s
Death.............................................................................................................................................................................................
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4
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i
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Section
6.4
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Termination
by
Employee..........................................................................................................................................................................................................
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4
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Section
6.5
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Termination
by
Employer...........................................................................................................................................................................................................
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4
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Section
6.6
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Notice
of
Termination.................................................................................................................................................................................................................
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5
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Section
6.7
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Date
Termination is
Effective....................................................................................................................................................................................................
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5
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Section
6.8
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Compensation
Following
Termination.....................................................................................................................................................................................
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5
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ARTICLE
7.
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CONFIDENTIAL
INFORMATION; NON-SOLICITATION;
NON-COMPETITION
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Section
7.1
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...................................................................................................................................................................................................................................................... |
6
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Section
7.2
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...................................................................................................................................................................................................................................................... |
7
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Section
7.3
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...................................................................................................................................................................................................................................................... |
7
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Section
7.4
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...................................................................................................................................................................................................................................................... |
7
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ARTICLE
8.
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MISCELLANEOUS
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Section
8.1
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Notices..........................................................................................................................................................................................................................................
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8
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Section
8.2
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Binding
Agreement – Employer’s
Successors.......................................................................................................................................................................
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8
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Section
8.3
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Binding
Agreement – Employee’s
Successors.......................................................................................................................................................................
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8
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Section
8.4
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Waivers.........................................................................................................................................................................................................................................
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9
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Section
8.5
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Entire
Agreement.........................................................................................................................................................................................................................
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9
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Section
8.6
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Prior
Agreements.........................................................................................................................................................................................................................
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9
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Section
8.7
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Amendment
of
Agreement.........................................................................................................................................................................................................
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9
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Section
8.8
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Severability
of
Provisions..........................................................................................................................................................................................................
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9
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Section
8.9
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Assignment
of
Agreement.........................................................................................................................................................................................................
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9
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Section
8.10
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Governing
Law.............................................................................................................................................................................................................................
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9
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ARTICLE
9.
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AGREEMENTS
BY XXXXXXX LAND & NURSERIES,
INC.
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Section
9.1
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Guaranty.......................................................................................................................................................................................................................................
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9
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Section
9.2
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Direct
Agreement........................................................................................................................................................................................................................
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9
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ii
THIS
AGREEMENT is made and entered into as of January 1, 2001, by and between Xxxxxxx
Xxxxxx (“employee”) and Imperial Nurseries, Inc., a Delaware corporation
(“employer”).
WITNESSETH:
WHEREAS,
employee and employer deem it to be in their respective best interests to enter
into an agreement providing for employer’s employment of employee pursuant to
the terms herein stated;
NOW,
THEREFORE, in consideration of the premises and the mutual promises and
agreements contained herein, it is hereby agreed as follows:
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ARTICLE
1.
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EMPLOYMENT OF
EMPLOYEE
Effective
as of the date hereof, employer agrees to employ employee, and employee agrees
to provide services to the employer, upon the terms and conditions set forth in
this Agreement.
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ARTICLE
2.
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DUTIES OF
EMPLOYEE
Section 2.1 Position
and Duties. Employer
agrees to employ employee and employee agrees to serve as President of employer
for the term of employment (as described in Section 2.3). In this
capacity, employee shall devote his reasonable best efforts to the performance
of the services customarily incident to such office and position and to such
other services of an executive nature as may be reasonably requested by the
board of directors of employer which may include services for one or more
subsidiaries or affiliates of employer, including without limitation, Xxxxxxx
Land & Nurseries, Inc. (“Xxxxxxx”). Employee shall in his
capacity as an employee and officer of employer be responsible to and obey the
reasonable and lawful directives of the board of directors of
employer.
Section 2.2
Time Devoted to
Work. Employee
shall devote substantially all his business time and attention, and shall use
his reasonable best efforts, toward fulfillment of his duties under this
Agreement and toward protecting, encouraging and promoting the interests of
employer.
Section 2.3
Term
of Employment. Except
as otherwise specifically provided herein, employer shall employ employee, and
employee shall provide services to employer, upon the terms and conditions set
forth in this Agreement during the period beginning on the date hereof and
ending on the date provided under Section 6 of this Agreement.
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ARTICLE
3.
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PLACE OF
EMPLOYMENT
Section 3.1
Place of
Employment. Employee
shall be based at employer’s principal office Granby,
Connecticut. Employer agrees that during the term of this employment
agreement it shall not assign employee to work at any location other than its
principal office on a permanent basis without employee’s consent.
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ARTICLE
4.
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COMPENSATION OF
EMPLOYEE
Section 4.1
Base
Salary. Except
as otherwise set forth below, for all services rendered by employee under this
employment agreement, employer agrees to pay employee an annual base salary of
$195,000, which shall be payable to employee in such installments, but not less
frequently than monthly, as are consistent with employer’s practice for its
other employees. Employee’s annual base salary with respect to each
fiscal year beginning on or about the applicable date set forth below shall be
as follows:
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December
1, 2001
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$210,000
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December
1, 2002
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As
determined by the Compensation Committee of Employer’s Board of Directors
(the “Committee”), but not less than
$210,000
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Section 4.2
Incentive
Compensation. In
addition to the base salary, employee shall be entitled to receive not less than
30% of the employer’s senior management incentive pool as established by the
Committee.
Section 4.3
Stock
Options. Employee
shall be eligible to participate in the Xxxxxxx Land & Nurseries, Inc. 1997
Stock Option Plan (the “Option Plan”), at such level and in such amounts as may
be determined by the employer’s board of directors in its sole discretion,
subject to the terms and conditions of the Option Plan and any applicable award
agreements.
Section 4.4
Retirement and Deferred
Compensation. Employee
shall be eligible to participate in Xxxxxxx’x 401k plan and Xxxxxxx’x
non-qualified deferred compensation plan to the extent provided by the terms of
such plans.
Section 4.5
Reimbursement for Business
Expenses. Employer
shall promptly pay or reimburse employee for all reasonable business expenses
incurred by employee in performing employee’s duties and obligations under this
employment agreement, but only if employee properly accounts for expenses in
accordance with employer’s policies.
2
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ARTICLE
5.
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FRINGE
BENEFITS
Section 5.1
Employer Employee Benefit
Plans. Employee
shall be entitled to participate in and receive benefits from all of employer’s
employee benefit plans that currently are maintained by employer for senior
employees of employer. Employee shall be entitled to participate in
and receive benefits under any retirement plan, profit-sharing plan, or other
employee benefit plan that employer establishes for the benefit of similarly
situated employees of employer, after the effective date of this employment
agreement. No amounts paid to employee from an employee benefit plan
shall count as compensation due employee as base salary or incentive
compensation. Nothing in this employment agreement shall prohibit
employer from modifying or terminating any of its employee benefit plans in a
manner that does not discriminate between employee and other employees of
employer.
Section 5.2
Motor
Vehicle. Employer
will provide employee with the use of a motor vehicle to be selected in the
reasonable discretion of employer in keeping with employer’s present practice,
and employer shall procure, maintain, and pay for appropriate insurance on the
motor vehicle, including liability insurance of at least $300,000 per person and
$1,000,000 per occurrence for personal injury and $100,000 for property
damage.
Section 5.3
Life
Insurance. Employer
shall maintain in effect during the term of employee’s employment a term life
insurance policy in an amount equal to employee’s base salary. In
addition, employee shall be able to purchase additional term life insurance in
accordance with the group life insurance policy made available by
employer. Any proceeds payable under the policy shall be paid to the
beneficiary or beneficiaries designated in writing from time to time by
employee.
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ARTICLE
6.
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TERMINATION OF
EMPLOYMENT
Section 6.1
Term of
Employment. Employee’s
employment shall commence on the date of the execution of this agreement and
shall terminate on November 30, 2003, unless extended or terminated sooner, as
provided by this article of the employment agreement. For purposes of
this employment agreement, the later of November 30, 2003 or the last day of any
Extension Term (as defined in Section 6.2) shall be referred to as the
“end-of-employment date.”
Section 6.2
Extension of
Employment. On
November 30, 2003 and on each December 1 occurring in 2004 or thereafter,
employee’s employment with employer automatically shall be extended for an
additional year (each such additional year, an “Extension Term”)
unless, at least sixty (60) days prior to the termination date or
end-of-employment date, employer or employee delivers to the other a written
notice that employee’s employment with employer is not to be
extended. In the absence of an agreement, employee’s annual base
compensation shall be determined by the Committee, but shall be not less than
the employee’s previous year’s annual base compensation.”
3
Section 6.3
Termination at Employee’s
Death or
Disability. Employee’s
employment with employer shall terminate as of the date of employee’s death or
as the effective date of his “Disability.” For purposes of this
Agreement, “Disability” shall mean employee’s incapacity due to physical or
mental illness (as determined in good faith by a physician acceptable to
employer) which (a) results in employee being absent from the full-time
performance of his duties with employer for 120 consecutive days during any 12
month period or (b) which (as determined in good faith by a physician acceptable
to employer) will likely result in employee’s inability to return to the
full-time performance of his duties with employer for 120 consecutive days
during the succeeding 12 month period.
Section 6.4
Termination by
Employee . Employee
may, but is not obligated to, terminate this employment agreement at any time
under the following circumstances:
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(a) There
is a change in
control of employer. There is a change in control of
employer if someone other than a current owner of employer becomes the
beneficial owner of more than 50% of the voting power of
employer. No transaction or event will be deemed to have caused
a change in
control if employee gives prior consent to the transaction or
event.
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(b) Employee
is assigned duties that are significantly adversely different than those
described in this employment agreement without his
consent.
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(c) Employee
is removed from any of the positions described in Section 2.1 of this
employment agreement (other than by employer for
cause).
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(d) Employee’s
fringe benefits or other compensation are materially
reduced.
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(e) Employer
fails to have a successor assume this employment
agreement.
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(f) Employer
becomes insolvent or files a bankruptcy
petition.
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Section 6.5
Termination by
Employer.
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(a) Termination for
Cause. Employer may terminate employee’s
employment for
cause.
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(b) “Cause”
Defined. Employer shall have cause to terminate
employee’s employment if employee willfully fails to substantially perform
any duties required by this employment agreement (unless employee’s
failure is due to a physical or mental incapacity), employee is grossly
negligent in the performance of required duties, employee engages in
conduct that demonstrably and substantially damages employer, employee is
convicted of or pleads nolo contendere to a felony or a crime of moral
turpitude, or employee discloses material confidential information. No act
or failure to act by employee may be considered “willful” unless employee
acted or failed to act without any reasonable belief that the act or
omission was in employer’s best interests and without good
faith.
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4
Section 6.6
Notice of
Termination. Any
termination of employee’s employment by employer or employee must be
communicated to the other party by a written notice of
termination. The notice must specify the provision of this employment
agreement authorizing the termination and must set forth in reasonable detail
the facts and circumstances providing the basis for termination of employee’s
employment.
Section 6.7
Date Termination Is
Effective. If
employee’s employment terminates because this employment agreement expires, then
employee’s employment will be considered to have terminated on that expiration
date. If employee’s employment terminates because of employee’s
death, then employee’s employment will be considered to have terminated on the
date of employee’s death. If employee’s employment terminates because of
employee’s Disability, then employee’s employment will be considered to have
terminated on the date as of which employee is determined to be disabled in
accordance with Section 6.3. If employee’s employment is terminated by employee,
then employee’s employment will be considered to have terminated on the date
that notice of termination is given. If employee’s employment is
terminated by employer for cause, then employee’s employment will be considered
to have terminated on the date specified by the notice of
termination.
Section 6.8
Compensation Following
Termination.
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(a) If
employee’s employment terminates because of employee’s death, employer
shall pay a death benefit to the person or persons designated in a written
notice filed with employer by employee or, if no person has been
designated, to employee’s estate. The amount of the death
benefit shall equal the sum of (i) the employee’s then current annual base
salary plus (ii) a pro-rated amount (based on number of days in the
performance period for which he was employed during the applicable fiscal
year) of the incentive compensation that the employee would have otherwise
earned with respect to the fiscal year in which the employee’s death
occurs based on actual results for the full fiscal year. Such
pro-rated amount of incentive compensation shall be paid at such time as
the employee would have otherwise received any such incentive compensation
pursuant to the Imperial Nurseries, Inc. Incentive Compensation Plan as in
effect for such fiscal year (the “Imperial
Incentive Plan”). This death benefit shall be in
addition to any other amounts that the employee’s beneficiaries and estate
may be entitled to receive under any employee benefit plan maintained by
employer.”
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(b) If
employee’s employment terminates because of employee’s Disability,
employer shall pay employee (i) in accordance with employer’s customary
payroll practices, his then current annual base salary during the period
commencing on the effective date of such termination and ending on the
first anniversary of the date the employee’s employment was terminated and
(ii) a pro-rated amount (based on number of days in the performance period
for which he was employed during the applicable fiscal year) of the
incentive compensation that the employee would have otherwise earned with
respect to the fiscal year in which the employee’s Disability occurs based
on actual results for the full fiscal year. Such pro-rated
amount of incentive compensation shall be paid at such time as the
employee would have otherwise received any such incentive compensation
pursuant to the Imperial Incentive Plan. Amounts payable under
this Section 6.8(b) shall be paid in addition to any other amounts that
employee may be entitled to receive under any employee benefit plan or
insurance arrangement maintained by
employer.”
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5
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(c) If
employee’s employment is terminated by employer for cause, employer shall
pay employee his then current base salary through the date employment is
terminated, and employer shall have no further obligations to employee
under this employment agreement.
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(d) If
employer terminates the employee’s employment other than for cause,
employer shall pay employee his then current base salary through the date
employment is terminated. In addition, employer shall pay
employee as liquidated damages an amount equal to the sum of (i) his then
current annual base salary and (ii) a pro-rated amount (based on number of
days in the performance period for which he was employed during the
applicable fiscal year) of the incentive compensation that the employee
would have otherwise earned with respect to the fiscal year in which the
employee’s termination of employment occurs based on actual results for
the full fiscal year. Such pro-rated amount of incentive
compensation shall be paid at such time as the employee would have
otherwise received any such incentive compensation pursuant to the
Imperial Incentive Plan.”
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(e) If
employee’s employment is terminated by employee in accordance with the
provisions of Section 6.4 of this employment agreement, employer shall pay
employee severance pay in an amount equal to the sum of (i) his then
current annual base salary and (ii) a pro-rated amount (based on number of
days in the performance period for which he was employed during the
applicable fiscal year) of the incentive compensation that the employee
would have otherwise earned with respect to the fiscal year in which the
employee’s termination of employment occurs based on actual results for
the full fiscal year. Such pro-rated amount of incentive
compensation shall be paid at such time as the employee would have
otherwise received any such incentive compensation pursuant to the
Imperial Incentive Plan. If employee’s employment is terminated
by employee for any reason other than those set forth in Section 6.4 of
this employment agreement, employer shall pay to employee his then current
base salary through the date of such termination of employment and
employer shall have no further obligations to employee under this
employment agreement.”
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(f) If
employee’s employment is terminated by a successor in interest following a
merger or sale, if there is a change in control, or
if employee terminated employment with the successor employer for any
reason during the term of this employment agreement, Xxxxxxx agrees to
employ employee. Upon commencement of employment with Xxxxxxx,
employee will receive compensation and benefits equal to or commensurate
with the compensation and benefits provided in this employment agreement
until the first anniversary of the date of commencement of employment with
Xxxxxxx.”
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ARTICLE
7.
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CONFIDENTIAL INFORMATION;
NON-SOLICITATION; NON-COMPETITION
Section 7.1 During the term of employment hereunder and for one
year thereafter (the “Non- Compete Period”), employee shall not, directly or
indirectly in any manner or capacity (e.g., as an advisor, principal, agent,
partner, officer, director, shareholder, employee,
6
member of
any association or otherwise) engage in, work for, consult, provide advice or
assistance or otherwise participate in any activity which is competitive with
the business of employer or Xxxxxxx in any geographic area in which employer is
now or shall then be doing business. Employee further agrees that
during the Non-Compete Period he will not assist or encourage any other person
in carrying out any activity that would be prohibited by the provisions of this
Section 7 if such activity were carried out by employee and, in particular,
employee agrees that he will not induce any employee of employer or Xxxxxxx to
carry out any such activity; provided, however, that the “beneficial ownership”
by employee, either individually or as a member of a “group,” as such terms are
used in Rule 13d of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, of not more than two percent (2%) of the
voting stock of any publicly held corporation shall not be a violation of this
employment agreement. It is further expressly agreed that employer
will or would suffer irreparable injury if employee were to compete with
employer or any subsidiary or affiliate of employer in violation of this
employment agreement and that employer would by reason of such competition be
entitled to injunctive relief in a court of appropriate jurisdiction, and
employee further consents and stipulates to the entry of such injunctive relief
in such a court prohibiting employee from competing with employer or any
subsidiary or affiliate of employer in violation of this employment
agreement.
Section 7.2 During the term of employment and for one year
thereafter, employee shall not, directly or indirectly, influence or attempt to
influence customers or suppliers of employer or any of its subsidiaries or
affiliates, to divert their business to any competitor of employer.
Section 7.3 Employee recognizes that he will possess
confidential information about other employees of employer relating to their
education, experience, skills, abilities, compensation and benefits, and
interpersonal relationships with customers of employer. Employee recognizes that
the information he will possess about these other employees is not generally
known, is of substantial value to employee in developing its business and in
securing and retaining customers, and will be acquired by him because of his
business position with employer. Employee agrees that, during the term of
employment, and for a period of one year thereafter, he will not, directly or
indirectly, solicit or recruit any employee of employer for the purpose of being
employed by him or by any competitor of employer on whose behalf he is acting as
an agent, representative or employee and that he will not convey any such
confidential information or trade secrets about other employees of employer to
any other person.
Section 7.4 If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 7 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
7
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ARTICLE
8.
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MISCELLANEOUS
Section 8.1
Notices. Any
notice given under this employment agreement to either party shall be made in
writing. Notices shall be deemed given when delivered by hand or when
mailed by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the party at the address set forth below.
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Employee’s
address:
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Xxxxxxx
Xxxxxx
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00
Xxxxxxx Xxxxx
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Xxxxxxxx,
XX 00000
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Employer’s
address:
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Imperial
Nurseries, Inc.
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00
Xxxxxx Xxxxx Xxxxxx
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Xxxxxx,
XX 00000
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Guarantor’s
address:
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Xxxxxxx
Land & Nurseries, Inc.
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Xxx
Xxxxxxxxxxx Xxxxx, xxxxx 0000
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Xxx
Xxxx, XX 00000
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Each
party may designate a different address for receiving notices by giving written
notice of the different address to the other party. The written notice of the
different address will be deemed given when it is received by the other
party.
Section 8.2
Binding Agreement -
Employer’s Successors.
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(a) The
rights and obligations of employer under this employment agreement shall
inure to the benefit of and shall be binding upon the successors and
assigns of employer.
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(b) Employer
shall require any direct or indirect successor (by purchase, merger,
consolidation, or otherwise) of all or substantially all of employer’s
business and/or assets relating to the employer’s growing operations to
expressly agree to assume employer’s obligations under this employment
agreement and perform them in the same manner and to the same extent as
employer would have been required to do if no succession had
occurred. The agreement must be in a form and substance
satisfactory to employee.
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(c) If
employer fails to obtain such an agreement before the effective date of
the succession, employer’s failure will be considered a breach of this
employment agreement, and employee shall be entitled to the same amount of
money that employee would have been entitled to if employee had terminated
employee’s employment in accordance with the terms of this employment
agreement, calculated as though employee’s employment had terminated on
the end-of-employment
date.
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Section 8.3
Binding Agreement -
Employee’s Successors. This
employment agreement shall inure to the benefit and be enforceable by employee’s
personal representatives,
8
legatees, and heirs. If employee dies while amounts are still owed, such amounts shall be paid to employee’s legatees or, if no such person or persons have been designated, to employee’s estate.
Section 8.4
Waivers. The
waiver by either party of a breach of any provision of this employment agreement
shall not operate or be construed as a waiver of any subsequent
breach.
Section 8.5
Entire
Agreement. This
instrument contains the entire agreement of the parties. The parties
have not made any agreements or representations, oral or otherwise, express or
implied, pertaining to the subject matter of this employment agreement other
than those specifically included in this employment agreement.
Section 8.6
Prior
Agreements. This
employment agreement supersedes any prior agreements pertaining to or connected
with or arising in any manner out of the employment of employee by
employer. All such agreements are terminated and are of no force or
effect whatsoever.
Section 8.7
Amendment of
Agreement. No
change or modification of this employment agreement shall be valid unless it is
in writing and signed by the party against whom the change or modification is
sought to be enforced. No change or modification by employer shall be
effective unless it is approved by employer’s Board of Directors and signed by
an officer specifically authorized to sign such documents.
Section 8.8
Severability of
Provisions. If
any provision of this employment agreement is invalidated or held unenforceable,
the invalidity or unenforceability of that provision or provisions shall not
affect the validity or enforceability of any other provision of this employment
agreement.
Section 8.9
Assignment of
Agreement. Employer
shall not assign this employment agreement without employee’s prior written
consent, which consent shall not be unreasonably withheld. Employee
may not assign this employment agreement.
Section 8.10
Governing
Law. All
questions regarding the validity and interpretation of this employment agreement
shall be governed by and construed and enforced in all respects in accordance
with the laws of the State of Connecticut.
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ARTICLE
9.
|
AGREEMENTS BY XXXXXXX LAND
& NURSERIES, INC.
Section 9.1
Guaranty. As
a material inducement to employee to enter into this agreement and in
recognition to the contribution to be made by employee to its own business,
Xxxxxxx hereby guaranties full performance of this employment agreement by
employer.
Section 9.2
Direct
Agreement. As
a material inducement to employee to enter into this employment agreement and in
recognition to the contribution to be made by employee to its own business,
Xxxxxxx hereby agrees to issue stock as provided in Article 5, to ratify and
9
confirm
the firm offer of employment contained in Article 7 and to allow continuing
participation by employee in stock option plans identified in Article
4.
[signature
page follows]
10
IN
WITNESS, the parties have executed this employment agreement in duplicate and
effective as of January 1, 2001 and amended April 9, 2008.
|
Imperial
Nurseries, Inc.,
employer
|
||||
|
By:
|
/s/Xxxxxxxxx
X. Xxxxxxxx
|
/s/Xxxxxxx
Xxxxxx
|
||
|
Xxxxxxxxx
X. Xxxxxxxx, Director
|
Xxxxxxx
Xxxxxx, employee
|
|||
|
Xxxxxxx
Land & Nurseries, Inc.
|
||||
|
By:
|
/s/Xxxxxxxxx
X. Xxxxxxxx
|
|||
|
Xxxxxxxxx
X. Xxxxxxxx, President
|
||||
|
And
Chief Executive Officer
|
||||
11
