AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.2
AMENDED AND RESTATED
This Amended and Restated Employment Agreement (“Agreement”)
is entered into on October 12, 2018, by and between RiceBran Technologies, a California corporation (“XXX”), and Xxxxxx Xxxxx, an individual (“Employee”),
and is effective as of October 1, 2018 (“Effective Date”). The parties agree as follows:
1. Employment.
1.1 Prior Employment Agreement. XXX and Employee are parties to an Employment Agreement dated June 1, 2016 (“Prior Employment Agreement”) pursuant to which Employee has been employed as the Chief Accounting Officer of XXX.
1.3. Amendment of Employment Agreement. XXX and Employee desire to amend and restate the Prior Employment Agreement as provided in this Agreement.
1.4. Employment. XXX hereby employs Employee and Employee hereby accepts employment with XXX on the terms and conditions set forth herein.
2. Employment; Scope of Employment. Employee shall be employed as Chief Financial Officer of XXX, reporting to RBT’s Chief Executive Officer and the Chairman of the Audit Committee (“Audit Committee”) of RBT’s Board of Directors (“Board”). XXX reserves the exclusive right to designate and modify Employee’s specific
duties from time to time in any manner consistent with Employee’s status as Chief Financial Officer. No modification or change of Employee’s responsibilities and/or
duties shall modify, change or revoke any provision of this Agreement.
2.1 Best Efforts; Full Working Time. Employee shall devote substantially all of Employee’s business time, attention, skill and experience and shall apply Employee’s best efforts to the performance of Employee’s duties
and the business and affairs of XXX. Employee may engage in charitable activities and community affairs, and manage Employee’s personal investments and affairs, so long as such activities do not, either individually or in the aggregate,
materially interfere with the proper performance of Employee’s duties and responsibilities hereunder.
2.2 Supervision and Direction of Services. All of Employee’s services shall be under the supervision and direction of the Chief Executive Officer of XXX and
the Chairman of the Audit Committee.
2.3 Rules. Employee shall be bound by all the policies, rules, regulations, plans, programs, agreements and arrangements of XXX now in force, and by
all such other policies, rules, regulations, plans, programs, agreements and arrangements as may be hereafter implemented (collectively, “Company Arrangements”)
and shall faithfully observe and abide by the same. No such policy, rule or regulation shall alter, modify or revoke the provisions of this Agreement, including RBT’s right to terminate Employee’s employment at any time, with or without cause.
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2.4 Exclusive Services. During the Term, Employee shall not, directly or indirectly, whether as a partner, employee, creditor, shareholder, independent contractor or otherwise, promote, participate or engage in any
activity or other business that is competitive with RBT’s business operations; provided, however, that this provision shall not preclude or prohibit Employee from holding or obtaining an indirect and passive beneficial ownership, through a mutual
fund or similar arrangement, of up to one percent of any publicly-held company which is competitive with XXX as long as he does not otherwise promote, participate or engage in the business operations of such company. Employee agrees that
Employee shall not enter into an agreement to establish, form, contract with or become employed by a competing business of XXX while Employee is employed by XXX.
2.5 Non-Solicitation. To the fullest extent permissible under applicable law, Employee agrees that both during the Term and for a period of two (2) years following termination of this Agreement, Employee shall not take
any action to induce employees or independent contractors, or customers, suppliers or vendors of XXX to sever their relationship with XXX and accept an employment or an independent contractor relationship, or any other applicable relationship
with any other business.
2.6 Office Location. Employee shall primarily perform Employee’s duties under this Agreement at RBT’s principal offices, but shall provide services at such other locations as the Chief Executive Officer or the Board may
designate from time-to-time.
3. Term
and Termination; Payments upon Termination.
3.1 Term and Termination. Unless earlier terminated as described below, XXX hereby employs the Employee under this Agreement for a period commencing on the Effective Date and ending on December 31, 2018 (the “Term”). The period commencing on the Effective Date and ending on December 31, 2018, and each succeeding twelve (12) month period during the Term, are each
referred to herein as a “Contract Year.” The Term shall be extended automatically for
successive one-year terms unless either party notifies the other party in writing at least ninety (90) days prior to the expiration of the then-effective Term of such party’s intention not to renew this Agreement.
3.1.1 Termination for Cause. No termination of Employee’s employment hereunder for Cause shall be effective unless XXX shall first have given written notice to Employee (the “Cause Notice”) of its intention to terminate Employee for Cause, such Cause Notice shall state the circumstances that constitute the grounds on which
the termination for Cause is based. “Cause” for termination of Employee’s employment shall mean the occurrence of any of the following:
(a) Employee breaches a material
term of this Agreement, which breach remains uncured for thirty (30) days after delivery of the Cause Notice (which Cause Notice shall describe the breach in sufficient detail to allow Employee the reasonable opportunity to cure the breach, if
susceptible of being cured within such thirty (30) day period);
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(b) Employee has been grossly negligent or engaged in
material willful or gross misconduct in the performance of Employee’s duties;
(c) Employee has committed, as reasonably determined
by the Board, or has been convicted by a court of law of fraud, moral turpitude, embezzlement, theft, or similar criminal conduct, or any felony;
(d) Employee’s habitual misuse of alcohol, drugs, or
any controlled substance; or
(e) Employee’s (i) breach of the Proprietary
Information Agreement (as defined below) or (ii) failure to comply with reasonable written standards established by XXX for the performance of Employee’s duties hereunder.
3.1.2 Termination for Good Reason.
(a) Employee may terminate this Agreement for Good
Reason, as defined herein, subject to and provided that Employee complies with the requirements of Section 3.1.2(b). As used herein, “Good Reason” means (i) any material breach by XXX of any provision of this Agreement (other than a reduction of Employee’s
Base Salary as part of a general reduction of the salaries of all of RBT’s executive officer employees); (ii) a material reduction of Employee’s duties or responsibilities (or the assignment of duties or responsibilities to Employee that
are) not consistent or commensurate with Employee’s position as Chief Executive Officer, but not including any reduction in Employee’s duties during any investigation or proceedings initiated by XXX pursuant to Section 3.1.1 with regard to a possible termination of Employee for Cause; or (iii) any reduction of Employee’s Base Salary other than as part of a general reduction of the salaries of all of RBT’s executive officer employees.
(b) In order to terminate this Agreement for Good
Reason, Employee shall provide XXX with (i) written notice of the Good Reason (which notice must be delivered within ninety (90) days following the date Employee first learns of the occurrence of the event constituting Good Reason and which
notice shall describe the particulars of RBT’s breach in sufficient detail to allow XXX reasonable opportunity to remedy or eliminate the Good Reason(s), if susceptible of being remedied or eliminated); and (ii) thirty (30) days within which to
remedy or eliminate the Good Reason(s). In the event that Employee provides such notice and XXX fails to remedy or eliminate the Good Reason(s) within such 30-day period, Employee shall be entitled to provide XXX with written notice (of not less
than fifteen (15) days) that Employee is terminating this Agreement as a result of such Good Reason(s) (such notice, a “Good Reason Resignation Notice”). In
order for Employee’s termination of this Agreement to be for Good Reason, (i) the Good Reason Resignation Notice must be delivered to XXX within twenty (20) days after the end of such 30-day period in which XXX was unable to remedy or eliminate
the Good Reason(s) and (ii) the Good Reason Resignation Notice must set forth the effective date of Employee’s termination, which termination date must not be less than fifteen (15) days after the date that Employee delivered the Good Reason
Resignation Notice to the Company.
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3.1.3 Voluntary Termination of Employment. Employee agrees (a) to provide at least ninety (90) days prior written notice (a “Voluntary
Termination Notice”) of Employee’s intention to voluntarily terminate Employee’s employment with XXX for any reason other than Good Reason, death or Disability (as defined below) (a “Voluntary Termination”) and (b) to specify in such notice a fixed date for the Voluntary Termination. A termination of this Agreement by reason of Employee’s non-renewal shall be deemed to be a Voluntary
Termination.
3.2 Payments Upon Termination.
3.2.1 For Cause, Voluntary Termination, or Disability. If XXX terminates Employee’s employment for Cause, or if Employee terminates by Voluntary Termination, or if either party terminates this Agreement due to Employee’s
Disability, Employee shall be entitled to receive in a cash lump sum payment (less normal and customary deductions and withholdings) an amount equal to all accrued but unpaid compensation (including accrued but unused vacation leave) as of the
date of such termination (such payment shall be made within the time period required by applicable law, but in no event later than thirty (30) days following the date of termination).
3.2.2 Without Cause, for Good Reason, or Death.
(a) In the event Employee’s employment is terminated
(i) by XXX other than for Cause, (ii) by Employee for Good Reason, or (iii) due to Employee’s death, Employee (or Employee’s estate or legal representative) shall be entitled to a cash lump sum payment an amount equal to (1) all previously
accrued but unpaid compensation (including accrued but unused vacation leave) as of the date of such termination and (2) the Base Salary that Employee would have been paid had he remained employed with XXX for the ninety (90) day period
beginning immediately after XXX gives notice to Employee of Employee’s termination (or beginning immediately after Employee provides XXX with the Good Reason Resignation Notice); and the payments due under Section 3.2.2(a)(2) to be made no later than ten (10) days following the effective date of a mutual general release in a reasonable form prepared by XXX, and signed, by both Employee and XXX.
(b) For purposes of this Agreement, “Disability” shall mean that Employee, due to a physical or mental disability, has been substantially unable to perform Employee’s duties under this Agreement for
a continuous period of ninety (90) days or longer, or for one hundred and twenty (120) days or more in any twelve (12) month period.
3.2.3 Section 409A. Notwithstanding any provision of this Agreement to the contrary, if Employee is a “specified employee” as defined in Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), he shall not be entitled to any payments upon a termination of Employee’s employment under any arrangement that
constitutes “nonqualified deferred compensation” under Section 409A until the earlier of (i) the date which is six (6) months after Employee’s separation from service (as such term is defined in Section 409A of the Code and the regulations and
other published guidance hereunder) for any reason other than death, or (ii) the date of Employee’s death. After the date of termination, Employee shall have no duties or responsibilities that are inconsistent with having a separation from
service as of such date. Any amounts otherwise payable to Employee following a termination of employment that are not so paid by reason of this Section 3.2.3
shall be paid promptly following, and in any event within fifteen (15) days following, the date that is six (6) months after Employee’s separation from service (or, if earlier, the date of Employee’s death).
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3.2.4 Termination upon a Change of Control. Within sixty (60) days prior to or ninety (90) days after the effective date of a Change of Control (as defined below), either XXX or Employee may,
upon thirty (30) days' prior written notice to the other, terminate Employee's employment. In the event of any such termination of Employee's employment (and regardless of whether such termination occurs with or without such thirty (30) day
notice), XXX shall pay to Employee (a) the severance and other benefits set forth in Section 3.2.1 and Section 3.2.2, as applicable, and (b) an additional severance payment of an amount equal to the Base Salary that Employee would have been paid had he remained employed with XXX for the one hundred and eighty
(180) day period beginning immediately after such termination, but Employee shall be entitled to such additional severance payment under this part (b) only if Employee
executes a general release in a reasonable form prepared by XXX. Such payment shall be payable in accordance with applicable law, but in no event later than thirty (30) days following the date of termination (and Employee’s execution and delivery of a general release, in the case of payments to be made under Section
3.2.2(a)(2), if applicable, or part (b) of this Section 3.2.4). For the purposes of this Agreement, the term “Change of Control”
shall mean any of the following events: (x) the consummation of a merger or consolidation of XXX with any other entity which results in the voting securities of XXX outstanding immediately prior thereto failing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of XXX or such surviving entity outstanding immediately after such
merger or consolidation, or (y) the sale or other transfer in one or more transactions not in the ordinary course of RBT's business or personal property assets constituting more than fifty percent (50%) of the personal property assets of XXX and
its subsidiaries (taken as a whole) to any such person or group of persons; provided, however, that the sale of the assets or equity interests of Healthy Natural Inc., NUTRA
SA, LLC or any of their subsidiaries shall not constitute a Change of Control.
4. Compensation;
Benefits.
4.1 Base Salary. Employee shall be paid at a rate which, on an annualized basis, equals two hundred ten thousand dollars ($210,000) per year, as adjusted pursuant to this Section 4.1 (“Base Salary”). The Base Salary shall be subject to normal payroll withholdings and RBT’s standard payroll
practices. For each Contract Year after the initial Contract Year, Employee’s Base Salary shall be subject to increase as determined by the Board in its discretion.
4.2 Annual Bonus Program. Employee shall participate in any XXX annual bonus program that is adopted by XXX and that is applicable to senior officers of XXX (subject to the terms and conditions of any such program). Any
such annual bonus program must be approved by the XXX Compensation Committee and shall set forth objective criteria for bonus payments based on the financial performance of XXX. Such annual bonus program also shall set forth a target bonus
objective for Employee, which shall be set by the Board in its sole discretion. The actual annual bonus amount, if any, shall be paid in accordance with the terms of such program and may be paid in cash or stock incentives or a combination of
cash and stock incentives.
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4.3 Equity Incentive Awards. Employee shall be entitled to receive equity incentive awards at the sole discretion of the Board or its Compensation
Committee. Any grant of an equity incentive award shall require the approval of the Board or its Compensation Committee and be subject to the terms and conditions of the corresponding grant agreements, incentive programs and equity incentive
plans, including without limitation pursuant to the terms of the XXX Management Incentive Program and the XXX 2014 Omnibus Incentive Plan.
4.4 Vacation and other Standard Benefits. Employee shall be entitled to six (6) weeks of paid vacation time per year. Employee may not accrue vacation time in excess of such six (6) weeks maximum. Accrual of vacation
time shall be subject to the terms and conditions of RBT’s vacation policy. Employee shall be entitled to health benefits in accordance with RBT’s standard policies. In addition, Employee is entitled to paid holidays, sick leave and other
benefits in accordance with RBT’s standard policies.
4.5 Business Expenses. Employee shall be reimbursed for reasonable business expenses which he incurs in the performance of Employee’s duties hereunder, in accordance with RBT’s standard reimbursement policies.
4.6 Inconsistencies. In the event of any inconsistency between any provision of this Agreement and any provision of any Company Arrangement, the provisions of this Agreement shall control.
5. Employee’s
Representations. Employee represents and warrants to XXX that information provided by Employee about Employee to XXX in connection with Employee’s employment and any supplemental information provided to XXX is, to the best of
Employee’s knowledge and information after good faith diligence and investigation, complete, true and correct. Employee has not omitted any information that is necessary to evaluate the information provided by Employee to XXX. Employee shall
promptly notify XXX of any change in the accuracy or completeness of all such information.
6. Trade
Secrets. Employee acknowledges that XXX has expended substantial time and expense to develop customers and to develop procedures and processes for development of products and services and the sales of products and services. Such
procedures and processes in addition to various other types of proprietary information are included as part of the “confidential information” described in the “Proprietary
Information Agreement” dated June 25, 2018 between XXX and Employee and attached hereto as Exhibit A. XXX and Employee agree that the Proprietary Information
Agreement attached hereto as Exhibit A continues to be in full force and effect. Nothing in this Agreement alters the obligations of Employee under the Proprietary Information Agreement.
7. Remedies
for Breach of Covenant Regarding Confidentiality. The parties agree that the breach by Employee of any covenants contained in Sections 2.4, 2.5, and 6 will result in immediate and irreparable injury to XXX. In the event of any breach
by Employee of the covenants contained in Sections 2.4, 2.5, or 6, XXX shall be entitled to seek recourse through all available legal and equitable remedies necessary or useful to prevent any likelihood of immediate or irreparable injury to XXX. The
parties agree that, in the case of such a breach or threat of breach by Employee of any of the provisions of such Sections, XXX may take any appropriate legal action, including without limitation action for injunctive relief, consisting of orders
temporarily restraining and preliminarily and permanently enjoining such actual or threatened breach.
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8. Miscellaneous.
8.1 Choice of Law. The rights and obligations of the parties and the interpretation and performance of this Agreement shall be governed by the laws of Texas, excluding its conflict of laws rules, except as such laws may
be interpreted, enforced, or preempted by federal law.
8.2. Entire Agreement. This Agreement and the Proprietary Information Agreement contain the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior and
contemporaneous oral and written agreements, understandings and representations among the parties. There are no representations, agreements, arrangements, or understandings, whether oral or written, between or among the parties relating to the
subject matter of this Agreement that are not fully expressed herein and therein. This Agreement amends and restates the Prior Employment Agreement in its entirety as of the Effective Date.
8.3 Notices. Any notice under this Agreement shall be in writing, and any written notice or other document shall be deemed to have been duly given (i) on the date of personal service on the parties, (ii) on the third
business day after mailing, if the document is mailed by registered or certified mail, (iii) one day after being sent by professional or overnight courier or messenger service guaranteeing one-day delivery, with receipt confirmed by the courier,
or (iv) on the date of transmission if sent by telegram, telex, telecopy or other means of electronic transmission resulting in written copies, with receipt confirmed. Any such notice shall be delivered or addressed to the parties at the
addresses set forth on the signature page below or at the most recent address specified by the addressee through written notice under this provision. Failure to conform to the requirement that mailings be done by registered or certified mail
shall not defeat the effectiveness of notice actually received by the addressee.
8.4 Severability. XXX and Employee agree that should any provision of this Agreement be declared or be determined by any court or other tribunal (including an arbitrator) of competent jurisdiction to be illegal, invalid
or unenforceable, the legality, validity and enforceability of the remaining parts, terms and provisions shall not be affected thereby, and said illegal, unenforceable or invalid part, term or provision shall be deemed not to be part of this
Agreement.
8.5 Amendment. The provisions of this Agreement may be modified at any time by agreement of the parties; provided that such modification shall be ineffective unless in writing and signed by the parties hereto.
8.6 No Transfer or Assignment; No Third-Party Beneficiaries. The rights of Employee hereunder have been granted by XXX with the understanding that this Agreement is personal to, and shall be performed by Employee
individually. This Agreement is not transferable or assignable by Employee in any manner. No person or entity other than XXX and Employee shall have any rights whatsoever under this Agreement. No person or entity other than XXX or Employee
shall have any right to enforce any provision of this Agreement, or to recover damages on account of the breach of this Agreement. No heir, successor or assign of Employee, whether voluntarily or by operation of law, shall have or succeed to any
rights of XXX or Employee hereunder.
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8.7 Waiver. Any of the terms or conditions of this Agreement may be waived at any time by the party entitled to the benefit thereof, but no such waiver shall affect or impair the right of the waiving party to require
observance, performance or satisfaction of that term or condition as it applies on a subsequent occasion or of any other term or condition.
8.8 Resolution of Disputes.
8.8.1 Resolution of Disputes. XXX and Employee agree that, except as otherwise provided herein, any claim or controversy arising out of or pertaining to this Agreement or the termination of Employee’s employment, including
but not limited to, claims of wrongful treatment or termination allegedly resulting from discrimination, harassment or retaliation on the basis of race, sex, age, national origin, ancestry, color, religion, marital status, status as a veteran of
the Vietnam era, physical or mental disability, medical condition, or any other basis prohibited by law (“Dispute”) shall be resolved by binding arbitration
as provided in this Section 8.8.
8.8.2 Binding Arbitration. The provisions of this Section 8.8
shall not preclude any party from seeking injunctive or other provisional or equitable relief in order to preserve the status quo of the parties pending resolution of a Dispute, and the filing of an action seeking injunctive or other provisional
relief shall not be construed as a waiver of that party’s arbitration rights. Except as provided herein, the arbitration of any Dispute between the parties to this Agreement shall be governed by the American Arbitration Association (“AAA”) Commercial Arbitration Rules (the “AAA Rules”).
8.8.3 Appointment of Arbitrator. Within thirty (30) days of service of a demand for arbitration by either party to this Agreement, the parties shall endeavor in good faith to select from the AAA list of labor and
employment arbitrators a single arbitrator, who must be a licensed attorney; if the parties fail to do so within such thirty (30) day period, an arbitrator shall be selected in accordance with the AAA Rules.
8.8.4 Initiation of Arbitration. In the case of any Dispute between the parties to this Agreement, either party shall have the right to initiate the binding arbitration process provided for in this paragraph by serving
upon the other party a demand for arbitration within the statutory time period from the date the Dispute first arose.
8.8.5 Location of Arbitration. Any arbitration hearing shall be conducted in Houston, Texas.
8.8.6 Applicable Law. The law applicable to the arbitration of any Dispute shall be, as provided in Section 8.1 and the Federal Arbitrator Act
(Title 9, U.S. Code, Section 1 et Seq.).
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8.8.7 Arbitration Procedures. In addition to any of the procedures or processes available under the AAA Rules, the parties shall be entitled to conduct discovery sufficient to adequately arbitrate their claims and/or
defenses, including access to relevant documents and witnesses, as determined by the arbitrator(s). In addition, either party may choose, at that party’s discretion, to request that the arbitrator(s) resolve any dispositive motions prior to the
taking of evidence on the merits of the Dispute. In the event a party to the arbitration requests that the arbitrator(s) resolve a dispositive motion, the arbitrator(s) shall receive and consider any written or oral arguments regarding the
dispositive motion, and shall receive and consider any evidence specifically relating thereto, and shall render a decision thereon, before hearing any evidence on the merits of the Dispute.
8.8.8 Scope of Arbitrators’ Award or Decision. XXX and Employee agree that if the arbitrator(s) find any Disputed claim to be meritorious, the arbitrator(s) shall have the authority to order all forms of legal and/or
equitable relief that would otherwise be available in court and that is appropriate to the claim. Any decision or award by the arbitrator(s) shall be a reasoned opinion in writing citing facts and law and shall be specific enough to permit
limited judicial review if necessary.
8.8.9 Costs of Arbitration; Attorneys’ Fees. XXX and Employee agree that the arbitrator(s), in their discretion and consistent with applicable law, may award to the prevailing party the costs incurred by that party in
participating in the arbitration process as long as they do not exceed those that would be incurred by Employee in a court action.
8.8.10 Acknowledgment of Consent to Arbitration. NOTICE: BY EXECUTING THIS AGREEMENT THE PARTIES AGREE TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “RESOLUTION OF DISPUTES” PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED HEREIN AND WAIVE ANY RIGHTS THEY MAY HAVE TO HAVE THE DISPUTE DECIDED BY A JUDGE OR A JURY. BY EXECUTING THIS AGREEMENT, THE PARTIES WAIVE THEIR JUDICIAL RIGHTS TO APPEAL. IF EITHER PARTY REFUSES TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE COMPELLED TO ARBITRATE. THE PARTIES’ AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. THE PARTIES REPRESENT THAT THEY HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THIS PROVISION TO NEUTRAL ARBITRATION.
8.10 Exhibits. All exhibits to which reference is made are deemed incorporated in this Agreement whether or not actually attached.
[Signature Page Follows]
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The parties hereto have executed and delivered this Amended and Restated Employment Agreement as of the date first-above written.
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XXX:
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EMPLOYEE:
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a California corporation
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/s/ Xxxxx X. Xxxxxxx
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/s/ Xxxxxx Xxxxx
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By:
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Xxxxx X. Xxxxxxx
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By:
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Xxxxxx Xxxxx
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Title:
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Chief Executive Officer
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Address:
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0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
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Address:
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The Xxxxxxxxx, Xxxxx 000000
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[Signature Page to Amended and Restated Employment Agreement]
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EXHIBIT A
PROPRIETARY INFORMATION AGREEMENT
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