EXHIBIT 10.26
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of April 7, 2005 (the "Effective Date"), by and between SONOMA
FOODS, INC., a California corporation (the "Company"), C. XXXXX XXXXXXX
("Employee"), and MONTEREY GOURMET FOODS, INC., a Delaware corporation
("Monterey").
RECITALS
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WHEREAS, the Company desires to employ Employee, and Employee desires
to accept such employment, on the terms and subject to the conditions set forth
in this Agreement; and
WHEREAS, this Agreement is being entered into in connection with the
Stock Purchase Agreement dated as of the date hereof among the Company, Monterey
and the shareholders of the Company (the "Purchase Agreement"); and
WHEREAS, this Agreement supersedes any other prior agreements or
understandings among or between any of the parties concerning the subject of the
employment of Employee by the Company.
OPERATIVE TERMS
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In consideration of the foregoing recitals and the covenants and
agreements set forth herein, the parties agree as follows:
1. Employment and Duties. The Company hereby employs Employee to
serve as its Chief Operating Officer, and Employee hereby accepts such
employment, upon the terms and conditions set forth in this Agreement. During
the Initial Term (as defined below), Employee will devote his full business time
to the business of the Company, provided that the expenditure of reasonable
amounts of time for educational, charitable, or professional activities shall
not be deemed a breach of this agreement if those activities do not materially
interfere with the services required under this agreement and shall not require
the prior written consent of Employer's Board of Directors. Employer shall
provide Employee with (1) the compensation, incentives, benefits, and business
expense reimbursement specified elsewhere in this agreement, and (2) computer,
cellular telephone, office space, and administrative support suitable to
Employee's position and adequate for the performance of his duties. Employee
shall be assigned only to duties consistent with duties customarily performed by
an executive and consistent with his professional skills and abilities. Subject
to the requirements of reasonable and customary travel on business of Sonoma,
Employee's place of employment shall be within or not more than five miles from
the boundaries of Sonoma, California.
2. Term. Subject to the terms and conditions of this Agreement,
including without limitation the provisions for termination set forth in Section
4 hereof, the employment of Employee under this Agreement shall commence on the
Effective Date of the Purchase Agreement and shall continue through the close of
business on the date which is four years thereafter (the "Initial Term"). Upon
the expiration of the Initial Term, Employee's employment with the Company will
continue on an "at-will" basis and may be terminated by Employee or the Company
for any reason and at any time.
3. Compensation.
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(a) Annual Base Salary. As compensation for Employee's
services and in consideration for Employee's covenants contained in this
Agreement, the Company shall pay Employee an annual base salary of $175,000.00,
which shall be paid in equal bi-weekly installments in accordance with the
policy then prevailing for the Company's salaried employees generally.
(b) Bonus. Within ninety (90) days after the end of the
first and second years from the Effective Date, Employee shall be paid a cash
bonus equal to fifteen percent (15%) of the amount by which the Company's
earnings for the previous year before interest, taxes, depreciation,
amortization and the bonus calculated as provided in this section exceeds the
sum of four hundred thousand dollars ($400,000). Within ninety (90) days after
the end of the third and fourth years from the Effective Date, Employee shall be
paid a cash bonus equal to twelve and one-half percent (12.5%) of the amount by
which the Company's earnings for the previous year before interest, taxes,
depreciation, amortization and the bonus calculated as provided in this section
exceeds the sum of four hundred thousand dollars ($400,000). For purposes of
calculation of such bonus, the audit expense of Sonoma required under the Stock
Purchase Agreement shall be limited to $30,000 per year.
(c) Other Benefits. Employee shall be eligible to
participate in such pension, life insurance, health insurance, disability
insurance, 401(k) and other benefits plans, if any, which the Company or
Monterey may from time to time make available to similar-level employees and as
the Board of Directors shall determine. In the event Employee is permitted to
participate in a 401(k) plan sponsored by the Company or Monterey, any employer
matching under such plan shall be paid by the Company.
(d) Vacation and Other Paid Leave. During each year of
employment, Employee shall be entitled to four (4) weeks paid vacation, six (6)
days of non-cumulating paid sick leave, and paid holiday leave in accordance
with Company policy applicable to all employees.
(e) Automobile. The Company currently provides to
Employee the following automobile owned by the Company for the use of Employee:
2000 BMW. During the term hereof, the Company shall continue to provide Employee
with the use of the same or a comparable vehicle selected and authorized by the
Board of Directors for business and other purposes. The Company shall be
responsible for all costs of maintaining such vehicle or vehicles, which costs
shall include, without limitation, all loan payments and other financing
charges, insurance premiums insuring the vehicle, and all servicing and
maintenance costs of such vehicle. In addition to the foregoing, the Company
shall reimburse Employee at the beginning of each calendar month for the fuel
charges for such vehicle incurred by Employee during the immediately preceding
calendar month.
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(f) Reimbursement of Expenses. Employee shall be
reimbursed for all reasonable and customary travel and other business expenses
incurred by Employee in the performance of Employee's duties hereunder, provided
that such reimbursement shall be subject to, and in accordance with, any expense
reimbursement policies and/or expense documentation requirements of the Company
that may be in effect from time to time.
(g) Guarantee of Compensation. All compensation payable
pursuant to this Agreement is hereby guaranteed by Monterey up to a maximum
amount equal to the sum of all distributions from Sonoma to Monterey during the
term of this Agreement.
4. Termination.
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(a) Death. Employee's employment under this Agreement
shall terminate immediately upon Employee's death. In the event of a termination
pursuant to this Section 4(a), the Company shall pay Employee's unpaid base
salary owing to Employee up through and including the date of Employee's death
and, on a delayed basis as soon as the amount is determinable, the prorated
portion of any bonus which would be payable for the year in which such
termination may occur.
(b) Disability. If Employee is incapable, for a period of
more than 90 consecutive days or 180 days in any 12-month period, of
substantially performing his duties hereunder because of physical or mental
incapacity resulting from injury, sickness, or disease as determined by a
licensed physician mutually agreeable to the Company and the Employee (a
"Disability"), and unless reasonable accommodation can be made to allow Employee
to continue working, the Company may terminate Employee's employment upon not
less than fifteen (15) days written notice. In the event of a termination
pursuant to this Section 4(b), Employee shall receive any unpaid base salary
owing to Employee up through and including the date of Termination and, on a
delayed basis as soon as the amount is determinable, the prorated portion of any
bonus which would be payable for the year in which such termination may occur.
Termination pursuant to this section shall not prejudice Employee's rights to
disability benefits under section 3(c).
(c) Insurance. In addition to the compensation payable
pursuant to paragraphs (a) or (b) above in the event of Employee's death or
disability, Employee shall be enrolled, at the Company's cost and effective as
of the date of employment and for the term of this agreement, in Monterey's
employee salary insurance plan providing, in the event of death or disability, a
benefit equal to not less than one year's salary of Employee or, in the case of
accidental death, two year's salary.
(d) Termination By Company With Cause. The Company may
terminate Employee's employment at any time with Cause. As used in this
Agreement, "Cause" shall mean the following: (i) an act of fraud or embezzlement
of money or tangible or intangible assets or property of the Company or
Monterey; (ii) repeated absenteeism (other than as a result of a Disability)
which is not rectified to the reasonable satisfaction of the Board of Directors
of the Company within fifteen (15) days after written notice to Employee of such
absenteeism; (iii) the conviction of Employee of a felony involving fraud or
dishonesty or of a felony that results in material injury to the Company or
Monterey; or (iv) breach of any material term of this Agreement that is not
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cured to the reasonable satisfaction of the Board of Directors within fifteen
(15) days after written notice to Employee of said breach, or willful or
habitual neglect by Employee of the duties which he is required to perform under
the terms of this Agreement that is not cured to the reasonable satisfaction of
the Board of Directors within fifteen (15) days after written notice to Employee
of said neglect. In the event of a termination pursuant to this Section 4(d),
the Company shall pay Employee's unpaid base salary owing to Employee up through
and including the date of Employee's termination and, on a delayed basis as soon
as the amount is determinable, the prorated portion of any bonus which would be
payable for the year in which such termination may occur.
5. Competition and Confidentiality.
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(a) Competition. Employee will not, for a period
commencing on the date of this Agreement and extending through the date which is
three years after the expiration or termination of his employment hereunder (the
"Restrictive Period"), directly or indirectly, engage in, own, manage, operate,
finance, participate in, provide services for, have an interest in, or otherwise
be involved in any business arrangement with any person, firm, partnership,
corporation, or business, whether as an employee, officer, director, agent,
security holder, creditor, consultant, shareholder, partner, trustee, joint
venturer, broker, distributor, sales representative or in any other capacity,
that engages in any business competing with or similar to the business of the
Company or Monterey. The foregoing notwithstanding, Employee shall not be
prohibited from owning (1) debt or equity instruments issued by a publicly
traded company so long as Employee's total interests in such entity do not
exceed one-percent of any class of stock (including conversion rights) of such
publicly traded company, or (2) any interest in Sonoma Cheese Factory, LLC, or,
after termination of this Agreement, managing or otherwise being employed by
Sonoma Cheese Factory, LLC. Employee further agrees that, for a period of one
(1) year after termination of this Agreement, Employee shall not directly or
indirectly solicit, hire, recruit, or encourage any other employee of the
Company to leave employment by the Company. In addition to the foregoing
sentence, during the period of Employee's employment hereunder should Employee
become the owner of any interest in Sonoma Cheese Factory, LLC, or be the
trustee or executor or conservator of an estate or trust which owns an interest
in Sonoma Cheese Factory, LLC, then Employee shall not be prohibited from
carrying out the duties and activities with respect to Sonoma Cheese Factory,
LLC as are required by such position or positions as long as the carrying out of
such activities does not materially interfere with the services required of
Employee under this agreement.
(b) Confidential Information.
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(i) Employee acknowledges and agrees that he possesses
confidential information related to the Company and to the product
lines now produced by the Company, and may in the future possess
confidential information related to Monterey and to the product lines
of Monterey, such as, but not limited to, formulas, specifications,
manufacturing methods, documentation produced, business affairs, future
plans, process information, customer lists, and any other information
which is a valuable, special and unique asset of the Company or
Monterey, as applicable ("Confidential Information").
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(ii) Confidential Information shall not include
information that becomes publicly available through no act of the
disclosing party, is received rightfully from a third party without
duty of confidentiality, is disclosed under operation of law, or is
disclosed with the prior written permission of the Company or Monterey.
(iii) The improper disclosure or misuse of Confidential
Information would materially adversely affect the ability of Monterey
to realize its investment objective in acquiring the shares of the
Company, and Employee's covenants and agreements contained in this
section are in furtherance of and ancillary to the purchase and sale
transactions contemplated by the Purchase Agreement and are reasonable
and necessary to preserve and protect Monterey's investment.
(iv) Without the prior permission of the Company or
Monterey, Employee shall not, and shall take reasonable steps to assure
that no agent or representative of Employee shall, directly or
indirectly, disclose any Confidential Information to any third party.
Employee will not at any time or in any manner, either directly or
indirectly, use any Confidential Information for his own benefit, and
will protect such information and treat it as strictly confidential.
Only the disclosure of a material item in violation of this paragraph
shall be a material breach of this Agreement for purposes of paragraph
4(d). If it appears that Employee has disclosed (or has threatened to
disclose) Confidential Information in violation of this Agreement,
Monterey shall be entitled to an injunction to restrain Employee from
disclosing, in whole or in part, such information, or from providing
any services to any party to whom such information has been disclosed
or may be disclosed. Monterey shall not be prohibited by this provision
from pursuing other remedies, including claims for losses and damages.
(v) Upon termination of Employee's employment with the
Company, or upon the request of the Company or Monterey during the term
of employment, the Employee will return to the Company or Monterey all
of the Confidential Information in the Employee's possession or subject
to the Employee's control.
(c) The covenants of Employee contained in this Section 5
are reasonable in duration and scope. In the event of a breach of these
covenants by Employee, the Company and Monterey shall be entitled to injunctive
relief, as well as to damages sustained and the recovery of actual attorneys'
fees and all costs incurred to enforce these covenants.
6. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by facsimile transmission (as
long as receipt is acknowledged), or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed to the
address or facsimile number for each party set forth on the signature page
hereto, or to such other address or facsimile number as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon receipt.
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7. Miscellaneous.
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(a) No provision of this Agreement may be modified or
waived unless such waiver or modification is agreed to in writing signed by all
of the parties hereto.
(b) The failure of any party to insist on strict
compliance with any of the terms, covenants, or conditions of this agreement by
any other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
(c) This Agreement is the entire agreement between the
parties hereto with respect to Employee's employment by the Company, and there
are no agreements or representations, oral or otherwise, expressed or implied,
with respect to or related to the employment of Employee which are not set forth
in this Agreement.
(d) This Agreement shall be binding upon, and inure to
the benefit of, Monterey and the Company and their respective successors and
assigns, and Employee and Employee's heirs, executors, administrators and legal
representatives. The duties and covenants of Employee under this Agreement,
being personal, may not be delegated or assigned by Employee without the prior
written consent of the Company, and any attempted delegation or assignment
without such prior written consent shall be null and void and without legal
effect.
(e) If any provision of this Agreement shall under any
circumstances be deemed invalid or inoperative, the Agreement shall be construed
with the invalid or inoperative provision deleted and the rights and obligations
of the parties shall be construed and enforced accordingly. In the event of any
dispute over the interpretation of this Agreement, no presumption or burden of
proof or persuasion shall be implied by virtue of the fact that this Agreement
was prepared by or at the request of a particular party or his or its counsel.
(f) At any time during the term of this Agreement and for
a period of three months thereafter, Employee shall have the right, at
Employee's expense for the purpose of verifying amounts payable hereunder, to
inspect and copy the books, records and accounts of Sonoma during normal
business hours, and to engage the services of an accounting professional of
Employee's choosing to examine and audit such books, records and accounts.
8. Governing Law. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
California without regard to principles of choice of law or conflicts of law
thereunder.
9. Dispute Resolution; Arbitration. Any dispute, controversy or
claim arising out of or relating to this Agreement or any contract or agreement
entered into pursuant hereto or the performance by the parties of its or their
terms shall be settled by binding arbitration held in Sonoma, California, in
accordance with the Arbitration Rules and Procedures of the Judicial Arbitration
and Mediation Service ("JAMS") in effect at the time the request for arbitration
is submitted, except as specifically otherwise provided in this Section 9.
Notwithstanding the foregoing, Monterey may, in its discretion, apply to a court
of competent jurisdiction for equitable relief from any violation or threatened
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violation of the covenants of Employee under Section 5 of this Agreement. One
neutral arbitrator shall hear the matter. The arbitrator shall allow such
discovery as the arbitrator determines appropriate under the circumstances and
shall resolve the dispute as expeditiously as practicable, and if reasonably
practicable, within 120 days after the selection of the arbitrator. The
arbitrator shall give the parties written notice of the decision, with the
reasons therefor set out, and shall have 30 days thereafter to reconsider and
modify such decision if any party so requests within 10 days after the decision.
Thereafter, the decision of the arbitrator shall be final, binding, and
nonappealable with respect to all persons, including (without limitation)
persons who have failed or refused to participate in the arbitration process.
The arbitrator shall have authority to award relief under legal or equitable
principles, including interim or preliminary relief, and to allocate
responsibility for the costs of the arbitration and to award recovery of
attorney's fees and expenses in such manner as is determined to be appropriate
by the arbitrator. Judgment upon the award rendered by the arbitrator may be
entered in any court having in personam and subject matter jurisdiction. The
Company and Employee hereby submit to the in personam jurisdiction of the
Federal and State courts in Sonoma County, California, for the purpose of
confirming any such award and entering judgment thereon. All proceedings under
this Section, and all evidence given or discovered pursuant hereto, shall be
maintained in confidence by all parties. The fact that the dispute resolution
procedures specified in this Section 9 shall have been or may be invoked shall
not excuse any party from performing its obligations under this Agreement and
during the pendency of any such procedure all parties shall continue to perform
their respective obligations in good faith, subject to any rights to terminate
this Agreement that may be available to any party.
10. Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Agreement may be effective upon the execution and delivery by any party hereto
of facsimile copies of signature pages hereto duly executed by such party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
SONOMA FOODS, INC., a California corporation
By:
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Name:
-----------------------------------
Title:
----------------------------------
Address and Facsimile Number:
00000 Xxxxxx Xxxxxx Xxxx #0
Xxxxxx, XX00000
Fax: (000) 000-0000
EMPLOYEE
Signature:
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Print Name:
-----------------------------
Address and Facsimile Number:
00000 Xxxxxx Xxxxxx Xxxx #0
Xxxxxx, XX00000
Fax: (000) 000-0000
MONTEREY GOURMET FOODS, INC.,
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address and Facsimile Number:
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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