EMPLOYMENT AGREEMENT
Exhibit 10.8
This
Agreement is entered into as of November 10, 2020 (the
“Effective
Date”) by and between Edible Management, LLC, a
California limited liability company (the “Company”) and Xxxxx Xxxxx
(“Executive”).
1. Duties and Scope of
Employment.
(a) Positions
and Duties. The Company is a management firm presently
contracted to provide executive management services to Indus
Holding Company, a Delaware corporation (“Indus”), and its subsidiaries and
affiliates, including Cypress Manufacturing Company (collectively,
including the Company, the “Indus Entities”). As of the
Effective Date, Executive will serve as Chief Financial Officer of
Indus and of Indus’ parent company and all consolidated
subsidiaries. Executive will render such business and professional
services in the performance of Executive’s duties as are
consistent with Executive’s position and as reasonably
assigned to Executive by the Company’s Chief Executive
Officer and the Company’s Board of Directors (the
“Board”). The
period of Executive’s employment under this Agreement is
referred to herein as the “Employment Term.”
(b) Obligations. Executive shall
report to the Chief Executive Officer and the Board and Executive
shall devote Executive’s good faith best efforts and full
business time and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the
business and affairs of the Indus Entities. Executive shall perform
Executive’s duties, responsibilities and functions to the
Indus Entities hereunder in good faith and to the best of
Executive’s abilities in a diligent, trustworthy,
professional and efficient manner and shall comply with the
policies and procedures of the Indus Entities. So long as Executive
is employed by the Company or any Indus Entity, Executive shall
not, without the prior written consent of the Chief Executive
Officer or Chairman of the Board, accept other employment or
perform other services for compensation or that unreasonably
interfere with Executive’s employment with the Company;
provided that
Executive may serve as an officer or director of or otherwise
participate in purely educational, welfare, social, religious and
civic organizations so long as such activities do not unreasonably
interfere with executive’ obligations, responsibilities and
services hereunder and provided, further, that
Executive may also continue to serve as trustee/administrator of
his family’s estate, and shall be entitled to receive
compensation for such services.
2. Employment. Subject to the
provisions hereof under which Executive may be entitled to
severance benefits depending on the circumstances of
Executive’s termination of employment by the Company, the
parties agree that Executive’s employment with the Company
will be “at will” employment and may be terminated at
any time with or without cause or notice, for any reason or no
reason.
3. Compensation.
(a) Base Salary. Executive’s
base salary will be $250,000 per year (the “Base Salary”). The Base Salary
will be paid periodically in accordance with the Company’s
normal payroll practices and be subject to the usual, required
withholding. Executive’s salary will be subject to review and
adjustments will be made based upon the Company’s normal
performance review practices.
(b)
Stock Options.
Executive shall be granted options (the “Options”) to purchase 300,000
shares of Subordinated Voting Stock of Indus Holdings,
Inc.(“Parent”)
under Parent’s 2019 Stock Incentive Plan (the
“Plan”), having
an exercise price equal to the closing price of such shares on the
Canadian Securities Exchange on the date of approval of this
Agreement by the Parent Board of Directors. The Options shall be
vested as follows: 50,000 of the Options shall be vested
immediately upon grant and the remaining 250,000 Options shall vest
in four equal annual installments on each anniversary of the date
of grant, provided that following a Change of Control (as defined
below), if within twelve
months following such Change of Control the title and/or
responsibilities of Executive are materially diminished or
Executive is terminated by the Company without Cause (as defined
below), then upon notice by Executive to the Company given not
later than thirty (30) days following such material diminishment or
termination, the remaining unvested portion of this Option shall
thereupon vest and become immediately exercisable. As used herein,
“Change of
Control” shall mean a transaction or a series of
related transactions involving (i) a sale, transfer or other
disposition of all or substantially all of the assets of the Indus
Entities, (ii) the consummation of a merger or consolidation of
Parent or (iii) a sale or exchange of capital stock of Parent, in
any case as a result of which the stockholders of Parent
immediately prior to such transaction or series of related
transactions own, in the aggregate, less than a majority of the
outstanding voting power of the capital stock or equity interests
of the surviving, resulting or transferee entity. In addition, in
the event Executive and the Chairman of the Board determine to seek
a replacement for Executive, in the event Executive identifies a
suitable replacement that is approved by the Parent Board of
Directors and provides cooperation and assistance in the transition
of such individual for a period of at least one fiscal quarter, in
the reasonable determination of the Chairman, then all Options that
are unvested shall become vested and immediately
exercisable.
(c)
Bonus. Executive
shall be eligible to receive annual bonuses in such amounts and
subject to such performance metrics or other criteria determined by
the Board or its Compensation Committee from time to time,
including performance-based bonuses or programs as determined in
the discretion of the Board.
(d)
Employee Benefits.
During the Employment Term, Executive will be entitled to
participate in the employee benefit plans currently and hereafter
maintained by the Company of general applicability to other senior
executives of the Company. The Company reserves the right to cancel
or change the benefit plans and programs it offers to its employees
at any time.
4. Vacation. Executive will be
entitled to receive three (3) weeks of paid time off per year
during Executive’s employment, accruing at 1.25 days per
month pursuant and subject to the policies set forth in the
Company’s Employment Handbook.
5. Expenses. The Company will
reimburse Executive for reasonable travel, entertainment or other
expenses incurred by Executive in the furtherance of or in
connection with the performance of Executive’s duties
hereunder, in accordance with the Company’s expense
reimbursement policy as in effect from time to time.
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6. Severance
Benefits.
(a) Termination without
Cause. If
Executive’s employment with the Company is terminated by the
Company other than for Cause during the Employment Term, then for a
period of six months from the date of such termination, Executive
will receive from the Company continued payment of
Executive’s Base Salary in accordance with the normal payroll
practices of the Company, and during such period if Executive
elects to continue the Company-provided health insurance, the
Company shall continue to contribute to (or reimburse Executive
for) such health insurance costs in amounts consistent with the
benefit provided to Executive by the Company during the Employment
Term.
(b) Separation Agreement and Release of
Claims. The receipt of any severance will be subject to
Executive signing and not revoking a separation agreement and
release of claims with the Company in a form acceptable to the
Company no later than thirty (30) days after the termination of
employment occurs. No severance amounts or benefits will be paid or
provided until the separation agreement and release of claims
becomes effective, and any severance amounts or benefits otherwise
payable between the date of Executive’s termination and the
date of such release becomes effective shall be paid on the
effective date of such release.
(c) Non-Solicitation. Executive
agrees, to the fullest extent permitted by applicable law, for a
period of two years following the termination of the employment of
the Executive for any reason, Executive will not either directly or indirectly, solicit, induce,
recruit, encourage, take away, or hire any employee of any Indus
Entity (or any affiliate) or cause any employee to leave Indus
Entity’s (or its affiliate’s) employment either for
Executive or for any other entity or person; provided that the
foregoing shall not restrict the hiring of any individual for a
position outside the Indus Entity’s industry whose employment
with the applicable Indus Entity (or its affiliate) is terminated
prior to any solicitation by Executive. Executive represents that
Executive (A) is familiar with the foregoing covenant not to
solicit, and (B) is fully aware of Executive’s obligations
hereunder, including, without limitation, the reasonableness of the
length of time and scope of these covenants. Upon any breach
of this section, any remaining unpaid severance pay and other
benefits pursuant to Section 7(a) will immediately
cease and Executive shall be required to repay to the Company any
severance payments theretofore paid hereunder.
(d) Timing of Severance Payments.
The Company will pay the severance payments to which Executive is
entitled as salary continuation with the same timing as in effect
immediately prior to Executive’s termination of
employment.
(e)
Termination for Cause; Resignation
without Good Reason. If Executive’s employment
with the Company (or any affiliate of the Company) is voluntarily
terminated by Executive, or for Cause by the Company, then no
payment of severance shall be due to Executive
hereunder.
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7. Section 409A. Notwithstanding
anything to the contrary in this Agreement, if Executive is a
“specified employee” within the meaning of Section 409A
of the Code and the final regulations and any guidance promulgated
thereunder (“Section
409A”) at the time of Executive’s termination
(other than due to death), then the severance payable to Executive,
if any, pursuant to this Agreement, together with any other
severance payments or separation benefits that are considered
deferred compensation under Section 409A (together, the
“Deferred Compensation
Separation Benefits”) that would otherwise be payable
within the first six (6) months following Executive’s
termination of employment, will instead become payable in a lump
sum on the first payroll date that occurs on or after the date six
(6) months and one (1) day following the date of Executive’s
termination of employment or the date of Executive’s death,
if earlier. Any amount paid under this Agreement that qualifies as
a payment made as a result of an involuntary separation from
service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury
Regulations that does not exceed the Section 409A Limit under
applicable Treasury Regulations will not constitute Deferred
Compensation Separation Benefits. The foregoing provisions are
intended to comply with the requirements of Section 409A so that
none of the severance payments and benefits to be provided
hereunder will be subject to the additional tax imposed under
Section 409A, and any ambiguities herein will be interpreted to so
comply. Executive and the Company agree to work together in good
faith to consider amendments to this Agreement and to take such
reasonable actions which are necessary, appropriate or desirable to
avoid imposition of any additional tax or income recognition prior
to actual payment to Executive under Section 409A.
8. Definitions.
(a) Cause.
For purposes of this Agreement, “Cause” is defined as (i) Executive’s
conviction of or plea of nolo
contendere to any felony or any crime involving dishonesty
with respect to any Indus Entity; (ii) Executive’s willful misconduct in the
performance of Executive’s duties, breach of any
material agreement between Executive and the Company concerning the
terms and conditions of Executive’s employment with the
Company, or Executive’s willful violation of a material
Company employment policy (including, without limitation, any
anti-harassment or xxxxxxx xxxxxxx policy), in any case which is
materially injurious to the Company and its affiliates; or (iii)
Executive’s willful commission of an act of fraud, breach of
trust, or dishonesty including, without limitation,
embezzlement.
9. Successors.
(a) The Company’s Successors.
Any successor to the Company (whether direct or indirect and
whether by purchase, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company’s
business and/or assets will assume the obligations under this
Agreement and agree expressly to perform the obligations under this
Agreement in the same manner and to the same extent as the Company
would be required to perform such obligations in the absence of a
succession. For all purposes under this Agreement, the term
“Company” will include any successor to the
Company’s business and/or assets which executes and delivers
the assumption agreement described in this Section or which becomes
bound by the terms of this Agreement by operation of
law.
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(b) Executive’s Successors.
The terms of this Agreement and all rights of Executive hereunder
will inure to the benefit of, and be enforceable by,
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
10. Confidential
Information. Executive agrees, that to the extent that
Executive has not already done so, to enter into the
Company’s standard Employee Proprietary Information Agreement
(the “Employee Proprietary
Information Agreement”) upon commencing employment
hereunder.
11. Notices. All notices, requests,
demands and other communications called for hereunder will be in
writing and will be deemed given (i) on the date of delivery if
delivered personally, (ii) one (1) day after being sent by a
nationally recognized commercial overnight service, or (iii) four
(4) days after being mailed by registered or certified mail, return
receipt requested, prepaid and addressed to the parties or their
successors at the following addresses, or at such other addresses
as the parties may later designate in writing:
If to
the Company:
Edible
Management, LLC
00
Xxxxx Xxx Xxxxxx
Xxxxxxx, XX
00000
Attn:
Chairman of the Board
With a
copy to the Chairman at his last known email address.
If to
Executive:
at the
last residential address known
by the Company,
With a
copy to Executive at his last known email address.
12. Arbitration.
(a) Arbitration. In consideration
of Executive’s employment with the Company, its promise to
arbitrate all employment-related disputes, and Executive’s
receipt of the compensation, pay raises and other benefits paid to
Executive by the Company, at present and in the future, Executive
agrees that any and all controversies, claims, or disputes with
anyone (including the Company and any employee, officer, director,
shareholder or benefit plan of the Company in their capacity as
such or otherwise) arising out of, relating to, or resulting from
Executive’s employment with the Company or termination
thereof, including any breach of this Agreement, will be subject to
binding arbitration under the Arbitration Rules set forth in
California Code of Civil Procedure Section 1280 through 1294.2,
including Section 1281.8 (the “Act”), and pursuant to California
law. The Federal Arbitration Act shall also continue to apply with
full force and effect, notwithstanding the application of
procedural rules set forth under the Act.
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(b) Dispute Resolution.
Disputes that Executive agrees to
arbitrate, and thereby agrees to waive any right to a trial by
jury, include any statutory claims under local, state, or federal
law, including, but not limited to, claims under Title VII
of the Civil Rights Act of 1964, the Americans with Disabilities
Act of 1990, the Age Discrimination in Employment Act of 1967, the
Older Workers Benefit Protection Act, the Sarbanes Oxley Act, the
Worker Adjustment and Retraining Notification Act, the California
Fair Employment and Housing Act, the Family and Medical Leave Act,
the California Family Rights Act, the California Labor Code, Claims
of harassment, discrimination, and wrongful termination, and any
statutory or common law claims. Executive further understands that
this Agreement to arbitrate also applies to any disputes that the
Company may have with Executive.
(c) Procedure. Executive agrees
that any arbitration will be administered by the Judicial
Arbitration & Mediation Services, Inc. (“JAMS”), pursuant to its Employment
Arbitration Rules & Procedures (the “JAMS Rules”). The arbitrator shall
have the power to decide any motions brought by any party to the
arbitration, including motions for summary judgment and/or
adjudication, motions to dismiss and demurrers, and motions for
class certification, prior to any arbitration hearing. The
arbitrator shall have the power to award any remedies available
under applicable law, and the arbitrator shall award
attorneys’ fees and costs to the prevailing party, except as
prohibited by law. The Company will pay for any administrative or
hearing fees charged by the administrator or JAMS, except that
Executive shall pay any filing fees associated with any arbitration
that Executive initiates, but only so much of the filing fee as
Executive would have instead paid had Executive filed a complaint
in a court of law. Executive agrees that the arbitrator shall
administer and conduct any arbitration in accordance with
California law, including the California Code of Civil Procedure,
and that the arbitrator shall apply substantive and procedural
California law to any dispute or claim, without reference to the
rules of conflict of law. To the extent that the JAMS Rules
conflict with California law, California law shall take precedence.
The decision of the arbitrator shall be in writing. Any arbitration
under this Agreement shall be conducted in Monterey County,
California.
(d) Remedy. Except as provided by
the Act, arbitration shall be the sole, exclusive, and final remedy
for any dispute between Executive and the Company. Accordingly, except as provided by the Act and
this Agreement, neither Executive nor the Company will be permitted
to pursue court action regarding claims that are subject to
arbitration. Notwithstanding, the arbitrator will not have
the authority to disregard or refuse to enforce any lawful Company
policy, and the arbitrator will not order or require the Company to
adopt a policy not otherwise required by law which the Company has
not adopted.
(e) Administrative Relief.
Executive is not prohibited from pursuing an administrative claim
with a local, state, or federal administrative body or government
agency that is authorized to enforce or administer laws related to
employment, including, but not limited to, the Department of Fair
Employment and Housing, the Equal Employment Opportunity
Commission, the National Labor Relations Board, or the
Workers’ Compensation Board. However, Executive may not
pursue court action regarding any such claim, except as permitted
by law.
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(f) Voluntary Nature of Agreement.
Executive acknowledges and agrees that Executive is executing this
Agreement voluntarily and without any duress or undue influence by
the Company or anyone else. Executive further acknowledges and
agrees that Executive has carefully read this Agreement and that
Executive has asked any questions needed for Executive to
understand the terms, consequences and binding effect of this
Agreement and fully understands it, including that EXECUTIVE IS WAIVING
EXECUTIVE’S RIGHT TO A JURY TRIAL. Finally, Executive
agrees that Executive has been provided an opportunity to seek the
advice of an attorney of Executive’s choice before signing
this Agreement.
13. Miscellaneous
Provisions.
(a) No Duty to Mitigate. Executive
will not be required to mitigate the amount of any payment
contemplated by this Agreement, nor will any such payment be
reduced by any earnings that Executive may receive from any other
source.
(b) Amendment. No provision of this
Agreement will be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and
signed by Executive and by an authorized officer of the Company
(other than Executive) that is expressly designated as an amendment
to this Agreement.
(c) Integration. This Agreement,
together with the Employee Proprietary Information Agreement
represents the entire agreement and understanding between the
parties as to the subject matter herein and supersedes all prior or
contemporaneous agreements whether written or oral. This Agreement
may be modified only by agreement of the parties by a written
instrument executed by the parties that is designated as an
amendment to this Agreement.
(d) Waiver of Breach. The waiver of
a breach of any term or provision of this Agreement, which must be
in writing, will not operate as or be construed to be a waiver of
any other previous or subsequent breach of this
Agreement.
(e) Headings. All captions and
section headings used in this Agreement are for convenient
reference only and do not form a part of this
Agreement.
(f) Tax Withholding. All payments
made pursuant to this Agreement will be subject to all applicable
withholdings, including all applicable income and employment taxes,
as determined in the Company’s reasonable
judgment.
(g) Governing Law. This Agreement
will be governed by the laws of the State of California (with the
exception of its conflict of laws provisions).
(h) Severability. The invalidity or
unenforceability of any provision or provisions of this Agreement
will not affect the validity or enforceability of any other
provision hereof, which will remain in full force and
effect.
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14. Acknowledgment. Executive
acknowledges that he has had the opportunity to discuss this matter
with and obtain advice from Executive’s private attorney, has
had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly
and voluntarily entering into this Agreement.
15. Counterparts. This Agreement
may be executed in counterparts, and each counterpart will have the
same force and effect as an original and will constitute an
effective, binding agreement on the part of each of the
undersigned.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by their duly authorized officers, as of
the day and year first above written.
COMPANY:
Edible
Management LLC
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By:
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/s/ Xxxx
Xxxxxxxxx
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Date:
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11/8/2020
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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CEO
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EXECUTIVE:
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/s/ Xxxxx
Xxxxx
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Date:
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11/8/2020
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Xxxxx
Xxxxx
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Address:
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0000 Xxxxxxxx XX,
XX
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Xxxxxxxxxx XX
00000
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