EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS AGREEMENT is made as of this 31st day of May, 1995 by and between
Vinifera, Inc., an Oregon corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx
("Xxxxxxxxx").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the business of propagating
superior varieties of grape vines in commercial quantities (the "Business"); and
WHEREAS, Xxxxxxxxx is employed by the Company as its President and
possesses expertise in technology and know-how in areas relevant to the
Business; and
WHEREAS, the Company and Xxxxxxxxx mutually desire that the Company
continue to employ Xxxxxxxxx as its President following a change of control of
the Company on the effective date hereof.
NOW, THEREFORE, in consideration of the covenants and agreements of
the parties herein contained, the parties hereto agree as follows:
1. Employment and Duties. The Company hereby agrees to employ
Xxxxxxxxx as the President and Chief Executive Officer of the Company on the
terms and conditions set forth herein, and Xxxxxxxxx hereby agrees to remain in
the employ of the Company on such terms and conditions. Xxxxxxxxx shall serve
without additional compensation as a director or in such additional offices of
the Company or any of its affiliates to which Xxxxxxxxx may be duly appointed or
elected. Xxxxxxxxx shall perform such duties as shall be reasonably assigned to
him from time to time by the Board of Directors of the Company. Xxxxxxxxx agrees
to devote substantially all of his business' time and effort to the diligent and
faithful performance of such duties. Before engaging in any outside business
activity, Xxxxxxxxx will obtain the consent of the Board of Directors, which
shall not be unreasonably withheld.
2. Term. The term of Bouckaert's employment hereunder shall commence
on the date hereof and shall continue until the fifth anniversary of the date
hereof. Such term may be extended as the parties subsequently may agree.
3. Compensation. As compensation for his performance of services as an
employee hereunder, Xxxxxxxxx shall be entitled to receive:
a. a salary at the annual rate of One Hundred Sixty Thousand
Dollars ($160,000.00) ("Salary") payable in substantially equal
monthly installments, Bouckaert's salary may be adjusted after the
completion of his first year of service and each year thereafter under
this Agreement at the discretion of the Company's board of directors;
b. a one-time signing bonus of Forty Thousand Dollars
($40,000.00) payable upon execution of this Agreement; and
c. incentive stock options to purchase 400,000 shares of the
Company's common stock if and as approved (which approval will not be
unreasonably withheld) by the Board of Directors in connection with
the adoption of an employee stock option plan for the Company. Such
stock options shall vest annually in four (4) equal amounts,
commencing upon the completion of Bouckaert's second year of service
under this Agreement, dependent on continued employment. The exercise
price for each stock option shall be equal to the fair market value of
one share of the Company's common stock at the time such stock option
is granted.
Xxxxxxxxx shall also be entitled to receive the benefits set forth on
Schedule A hereto.
4. Commissions. Xxxxxxxxx shall be entitled to receive commissions
equal to one percent (1%) of all equity investment capital Xxxxxxxxx is directly
responsible for raising for the Company, payable in each case within thirty (30)
days of the Company's receipt of each said investment; provided, however, that
the Company shall be under no obligation to accept any particular offer of
investment at any time, and the terms and conditions of any proposed investment
(whether or not introduced by Xxxxxxxxx) shall at all times be in the sole
discretion of and determined solely by the Board of Directors of the Company;
and, further provided that in the determination of whether Xxxxxxxxx is in any
case "directly responsible" for an equity investment shall be in the sole
discretion of the board of directors of the Company to be determined reasonably
and in good faith. For purposes of this Agreement, Xxxxxxxxx shall be deemed
"directly responsible" for those accepted investments in which he both initiated
the contact and actively participated in securing the investments.
5. Waiver of Acceleration. As a condition to this Agreement and the
Stock Purchase Agreement, Xxxxxxxxx hereby forever waives any right of
acceleration of vesting of stock options for shares of the Company's stock based
on a "Change in Control," as that term is defined in that certain Award
Agreement under the Vinifera, Inc. 1993 Award Plan dated March 9, 1993, between
Xxxxxxxxx and the Company (the "Plan").
6. Confidential Information; Inventions.
a. In the course of his employment by the Company, Xxxxxxxxx has
acquired and will continue to acquire information and knowledge
respecting the proprietary and confidential affairs of the Company and
the Business, including without limitation confidential information
with respect to the Company's products, technology, know-how,
processes, customer lists and distribution methods ("Confidential
Information"). Accordingly, Xxxxxxxxx agrees that he shall not during
the period of his employment hereunder of thereafter use for his own
or any other person's or entity's benefit any such Confidential
Information acquired during the term of his employment with the
Company. Further, during the period of his employment hereunder and
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thereafter, Xxxxxxxxx shall not, without the written consent of the
Board of Directors of the Company or a person duly authorized thereby,
disclose to any person, other than an employee of the Company or a
person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by Xxxxxxxxx of his duties hereunder,
any Confidential Information obtained by him while in the employ of
the Company.
x. Xxxxxxxxx agrees that all memoranda, notes, records, papers
or other documents and all copies thereof containing Confidential
Information, some of which may be prepared by him, and all objects
associated therewith in any way obtained by him shall be the Company's
property. Xxxxxxxxx shall not, except for the Company's use, copy or
duplicate any of the aforementioned documents or objects, nor remove
them from the Company's facilities, nor use any information concerning
them except for the Company's benefit, either during his employment or
thereafter. Xxxxxxxxx agrees that he will deliver the original and all
copies of all of the aforementioned documents, including, but not
limited to, computer files and objects, if any, that may be in his
possession to the Company on termination of his employment, or at any
other time upon the Company's request.
x. Xxxxxxxxx agrees to disclose to Company and to assign to
Company all of Bouckaert's rights in any designs, discoveries,
improvements and ideas, whether or not patentable, including,
without limitation upon the generality of the foregoing, novel or
improved products, processes, technology and know-how, which either
(a) relate to (i) the Business or (ii) bouckaert's actual or
demonstrably anticipated research or development, or (b) result from
any work performed by Xxxxxxxxx for the Company (hereinafter
collectively "Inventions"), conceived or reduced to practice at any
time during Bouckaert's employment by the Company, either solely or
jointly with others and whether or not developed on Bouckaert's own
time or with the resources of the Company. Xxxxxxxxx agrees that
Inventions first reduced to practice within one (1) year after
termination of Bouckaert's employment by Xxxxxxxxx shall be presumed
to have been conceived during such employment unless Xxxxxxxxx can
establish specific events giving rise to the conception which occurred
after such employment. Further, except as otherwise expressly set
forth herein, Xxxxxxxxx disclaims and will not assert any rights in
Inventions actually made or as having been made, conceived or acquired
prior to employment by the Company.
7. No Competition. Subject to Section 8(a)(iv), Xxxxxxxxx agrees that
during his employment by the Company and during a period ending three (3) years
after termination of such employment, he will not, directly or indirectly, own,
manage, operate, control or participate in the ownership, management, operation
or control of, or be connected as an officer, employee, partner, director or
otherwise with, or have any financial interest in, or aid or assist anyone else
in the conduct of, the business of the type conducted by the Company or that
competes with the Company or the Business in any geographic area where the
Business is being conducted, at the time of termination of Bouckaert's
employment with the
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Company hereunder; provided, however, that the foregoing agreement shall not
preclude the passive ownership for investment purposes only of not more than 5%
of the equity securities of a corporation which has such securities registered
under Section 12 of the Securities Exchange Act of 1934, as amended. Xxxxxxxxx
further agrees that during his employment with the Company he shall not make
preparations to engage in any activity which would be prohibited by the
foregoing provisions of this Paragraph 7.
8. Termination of Employment.
x. Xxxxxxxxx'x employment shall terminate, or be subject to
termination, prior to the term specified in Paragraph 2 hereof, as
follows:
(i) Death. Bouckaert's employment hereunder shall
terminate upon his death.
(ii) Disability. Except as prohibited by applicable law,
in the event Xxxxxxxxx becomes physically or mentally disabled
so as to become unable, for a period of more than ninety (90)
consecutive working days or for more than ninety (90) working
days in the aggregate during any twelve-month period, to perform
his duties hereunder or substantially a full-time basis, the
Company may, at its option, terminate Bouckaert's employment
hereunder upon not less than ten (10) days' written notice.
(iii) Cause. The Company may, at any time, terminate
Bouckaert's employment hereunder for Cause. For the purposes of
this Agreement, the Company shall have "Cause" to terminate
Bouckaert's employment under upon (A) Bouckaert's engaging in
misconduct which is injurious to the Company or its affiliates,
(B) the material breach by Xxxxxxxxx of any of the provisions of
this Agreement, which violation continues for a period of ten
(10) days following notice from the Company to Xxxxxxxxx
stating, with reasonable specificity, the nature of such alleged
breach, or (C) Bouckaert's conviction of a felony or a plea by
Xxxxxxxxx of nolo contendere to a felony.
(iv) Without Cause. The Company may, at any time,
terminate Bouckaert's employment hereunder without cause and
without the requirement of any reason or justification. In the
event Xxxxxxxxx is terminated without cause, he will be bound by
the provisions of Section 7 only for the period during which he
receives severance payments in accordance with Section 8(b).
b. Cessation of Salary and Benefits After Termination. In the
event of the termination of Bouckaert's employment all payments of
salary and benefits under Paragraph 3 hereof shall cease, and
Xxxxxxxxx shall not be entitled to receive any compensation or payment
on account of such
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including, but not limited to, those rights set forth in the Plan. In
the event of the termination of Bouckaert's employment pursuant to
Paragraph 8(a)(iv) hereof, Xxxxxxxxx shall be entitled to receive, in
lieu of any other compensation or payment as a result of such
termination, and as liquidated damages therefor, severance payments
equal to the payments of his Salary under Paragraph 3(a), at the time
such payment would have been made, and the continuation of medical
benefits for twelve (12) months following the date of such
termination. In the event the Board of Directors elect not to renew
this Agreement, Xxxxxxxxx shall receive such severance payments for
eight (8) months following the date Xxxxxxxxx receives notice of the
Board's intent not to renew or the expiration of this Agreement,
whichever comes first.
9. Notices. For the purposes of this Agreement, notices and all other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as follows
or by facsimile transmission:
If to Xxxxxxxxx:
Xxxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Aherne & Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Company:
Vinifera, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: President
Facsimile: 000-000-0000
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With a copies to:
Xxxxx & Xxxxxxx
One IBM Plaza
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
Xxxxxx & Godward
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile: 000-000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous.
a. No provisions of this Agreement may be amended unless such
amendment, modification or discharge is agreed to in writing signed by
the parties hereto.
b. No waiver by any party hereto of any breach of, or compliance
with, any condition or provision of this Agreement by the other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No such
waiver shall be enforceable unless expressed in a written instrument
executed by the party against whom enforcement is sought.
c. This Agreement constitutes the entire agreement of the
parties on the subject matter hereof and no agreements or
representations, oral or otherwise, expressed or implied, with respect
to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. This Agreement expressly
supersedes the employment agreement between Xxxxxxxxx and the Company
dated February 1, 1993, which prior agreement is hereby terminated.
d. If a court of competent jurisdiction should decide that any
of the provisions of Paragraphs 6, 7 or 8 are not enforceable, in
whole or in part, the parties declare it is their intention that such
unenforceable provisions be deemed reformed so that they apply only to
the maximum extent to which they can be enforced. Xxxxxxxxx
acknowledges that his violation, or threatened violation, of the
provisions of Paragraph 6, 7 or 8 would cause the Company
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irreparable injury and, in addition to any other remedies to which the
Company may be entitled, the Company shall be entitled to injunctive
relief.
e. This Agreement shall be binding upon and inure to the benefit
of the Company, its successors and assigns, and Xxxxxxxxx and his
heirs, executors, administrators and legal representatives.
f. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Oregon
applicable to contracts made and to be performed therein between
residents thereof.
g. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
h. This Agreement has been jointly drafted by the respective
representatives of the Company and Xxxxxxxxx and no party shall be
considered as being responsible for such drafting for the purpose of
applying any rule construing ambiguities against the drafter or
otherwise. No draft of this Agreement shall be taken into account in
construing this Agreement.
XXXXXXXXX ACKNOWLEDGES HAVING READ AND SIGNED THIS AGREEMENT AND
HAVING RECEIVED A COPY THEREOF, INCLUDING THE FOLLOWING NOTICE:
This Agreement does not apply to an Invention for which no equipment,
supplies, facility, trade secret information or other property of the Company
was used and which was developed entirely on Bouckaert's own time, unless (a)
the Invention relates (i) to the Business or (ii) to the Company's actual or
demonstrably anticipated research or development, or (b) the Invention results
from any work performed by Xxxxxxxxx for the Company or any current or prior
affiliate of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
VINIFERA, INC.
By: /s/ Xxxxxx Chanson
Xxxxxx Chanson
Title: President
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