Exhibit 10.2
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
this 13th day of August, 2001, between Xxxxxxxx X. Xxxxx ("Employee") and Lante
Corporation and any existing or future assigns or subsidiaries owned or
controlled, directly or indirectly by Lante and for whom Employee works
("Lante").
RECITALS
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WHEREAS, Employee and Lante previously entered into the employment
agreements listed on the attached Annex I (collectively, the "Prior Employment
Agreement") and Employee has received one or more option grants as set forth in
the attached Annex I (together with any option grants received by Employee from
Lante after the date hereof, the "Option Grants").
WHEREAS, in consideration of Employee's employment or continued employment
by Lante, Employee's wages or salary and other employee benefits in compensation
of Employee's services, Employee and Lante wish to amend and restate the Prior
Employment Agreement in its entirety and amend each of the option agreements
relating to the Option Grants as set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lante and Employee agree as follows:
1. Employment. Employee will serve as Vice President and General Counsel of
Lante, reporting to the Chief Executive Officer. Employee agrees to use his best
efforts and abilities to promote the interests of Lante. Lante hereby agrees to
employ Employee as further defined in this Agreement. Except as provided in this
Agreement, Lante agrees to pay Employee's salary, at the rate agreed to from
time to time, and to confer upon Employee Lante's standard health insurance,
paid time off (four weeks vacation, sick and personal time), and retirement plan
benefits, all as governed by its "Employee Handbook" and other plan documents,
as the same may be amended by Lante from time to time.
2. Inventions. (a) As used herein, "Inventions" means discoveries, improvements
and ideas (whether or not shown or described in writing or reduced to practice)
and works of authorship, whether or not patentable or copyrightable, (i) which
relate directly to the business of Lante, (ii) which relate to Lante's actual or
demonstrably anticipated research or development, (iii) which result from any
work performed by Employee for Lante, (iv) for which equipment, supplies,
facility or trade secret information of Lante is used, or (v) which is developed
on any Lante time. This section does not apply to any invention developed by
Employee prior to Employee's employment by Lante, provided that such invention
is listed and described in an exhibit attached to and made part of this
Agreement.
(b) With respect to Inventions made, authored or conceived by
Employee, either solely or jointly with others, during Employee's employment,
whether or not during normal working hours and whether or not at Lante's
premises, Employee acknowledges and agrees that all such works are "works made
for hire" and, consequently, that the Company owns all copyright and other
rights thereto. Employee further agrees that it will (i) will keep accurate,
complete and timely records of such Inventions, which records shall be Lante's
property and be retained on Lante's premises; (ii) promptly and fully disclose
and
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describe such Inventions in writing to Lante; (iii) assign, and does hereby
assign, to Lante all of Employee's rights to such Inventions and to patents,
copyrights, and applications therefore with respect to such Inventions; and (iv)
acknowledge and deliver promptly to Lante (without charge to Lante but at the
expense of Lante) such written instruments and do such other acts as may be
necessary in the opinion of Lante to obtain and preserve such property rights
and to vest the entire right and title thereto in Lante.
(c) Employee will cooperate with Lante in the execution of any
documents which effect the assignment of Inventions or rights thereto which may
be required by a Lante clients or other third party, provided that such
requirement is no broader than the requirements of Section 2(b) above.
(d) Pursuant to the provisions of the Illinois Employee Patent Act,
765 ILCS 1060/2, Employee acknowledges receipt of notice that this assignment
does not apply to an invention for which no equipment, supplies, facility, or
trade secret of the Company was used and which was developed entirely on
Employee's own time, unless (a) the invention relates (i) to the business of the
Company, or (ii) to the Company's actual or demonstrably anticipated research or
development, or (b) the invention results from any work performed by Employee
for the Company.
3. Confidential Information. (a) During the term of Employee's employment by
Lante and any time thereafter, except in the course of performing Employee's
employment duties for Lante, Employee will not use, disclose, reveal or report
any Confidential Information of Lante, of Lante's past or current clients, or of
other parties which have disclosed confidential or proprietary information to
Lante. As used herein, "Confidential Information" means information not
generally known that is proprietary to Lante, its clients or other parties,
including but not limited to information about any clients, prospective clients,
sales proposals, employees, processes, operations, products, services,
organization, research, development, accounting, marketing, applications,
selling, servicing, finance, business systems, computer systems, software
systems and techniques. All information disclosed to Employee, or to which
Employee obtains access, whether originated by Employee or by others, which
Employee has reasonable basis to believe to be Confidential Information, or
which is treated by Lante or its clients or other parties as being Confidential
Information, shall be presumed to be Confidential Information.
(b) Employee will cooperate with Lante in the execution of any
personal confidentiality agreement which may be required by a Lante clients or
other third party, provided that such agreement is no broader in its provisions
to the requirements of Section 3(a) above.
4. Nonsolicitation. During the Nonsolicitation Period (defined below) Employee
shall not, without Lante's written consent, directly nor indirectly, by or for
himself or as the agent of another or through others as Employee's agents (i)
solicit or accept any business for the type of services typically performed by
Lante from any client for whom Lante has performed any services or issued any
proposals in the two (2) year period prior to such solicitation or acceptance,
(ii) request, induce or advise any such client to withdraw, curtail or cancel
its business with Lante or (iii) solicit for employment, employ, or engage as a
consultant any person who had been an employee of Lante at any time within the
six (6) months prior to such solicitation or engagement.
The "Nonsolicitation Period" immediately follows Employee's termination of
employment, and is based upon the position held by the Employee immediately
prior to such termination:
. For Vice Presidents, Managing Directors, Directors, and Principals the
period is two (2) years following termination of employment;
. For Managers, including Architects, the period is one (1) years
following termination of employment;
. For all other positions the period is six (6) months following
termination of employment.
5. Return of Lante Property. Upon termination of employment, Employee shall
return to Lante all copies of any Confidential Information (whether in paper,
electronic or any other form) as well as all
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hardware, software, books, documentation, files, keys, keycards, company credit
cards, records, lists and any other information or property owned by Lante
within Employee's possession or control, including all copies thereof.
6. Injunctive Relief. In the event of a breach or threatened breach of
Sections 2, 3, 4 or 5 by Employee, Lante shall be entitled, without posting of a
bond, to an injunction restraining such breach, an accounting and repayment of
profits, compensation, commission, remuneration or other benefits that Employee,
directly or indirectly, may realize as a result of such violation and to
reimbursement of any attorneys' fees and costs incurred by Lante as a result of
such breach. Nothing herein shall be construed as prohibiting Lante from
pursuing any other remedy available to it for such breach.
7. Compensation
(a) Employee shall receive a base salary of $212,250 per year, to be
payable bi-weekly (as such amount may be increased from time to time, the "Base
Salary"). Additionally, Employee shall be eligible for a performance-based bonus
with targeted cash of $60,000 annually (as such amount is increased from time to
time, the "Bonus"), which shall be based on criteria to be determined by the
Chief Executive Officer.
(b) Employee has received the Option Grants set forth on Annex I to
purchase shares of Lante common stock. Notwithstanding anything to the contrary
contained in any option agreement or option plan governing the Option Grants, in
the event of a Change in Control (as such term is defined in the Lante
Corporation 2001 Stock Incentive Plan as in effect on the date hereof), the time
periods relating to the exercise or vesting of the Option Grants shall
automatically be accelerated by twelve months. Except as expressly modified in
this Agreement, the remaining terms of such option agreements and the plans
governing those options will remain in full force and effect and will govern the
exercisability of such options.
8. Term. (a) Employment under this Agreement may be terminable by either Lante
or Employee without cause with a minimum of two (2) weeks prior notice, or may
be terminable by Lante for cause without prior notice. Upon notice of
termination other than by Lante for cause, Lante may (i) require Employee to
continue to perform his duties hereunder on Lante's behalf during such notice
period, (ii) limit or impose reasonable restrictions on Employee's activities
during such notice period as it deems necessary, or (iii) choose any date within
the notice period as the effective date of Employee's termination at any time
during such notice period. If, at any time during the notice period, Lante
chooses a date as the effective date of such termination, Lante will not be
obligated to pay Employee's compensation for any period beyond such resignation
acceptance date except as provided in the next sentence. In the event of
termination by Lante without cause, following the effective date of termination,
Employee shall be entitled to receive: (i) nine months of Employee's Base
Salary, (ii) three-quarters of Employee's Bonus, and (iii) 9 months continuation
of company paid medical and dental insurance benefits at existing coverage
levels for Employee and his family (if applicable). Any amounts payable under
clauses (i) or (ii) of the prior sentence will be payable within 14 days
following the effective date of termination. For purposes of this Agreement,
cause means criminal activity, dishonesty, breach of the Employee's fiduciary
duties to Lante, breach of this Agreement or failure to perform to Lante's
standards. If Employee either is placed in a substantially different role within
Lante, is forced to relocate from Chicago, Illinois, receives a reduction in
Base Salary or Bonus or is subject to a substantially changed reporting
relationship, then Employee may terminate his employment and deem such event to
be considered "termination by Lante without cause." Notwithstanding anything to
the contrary contained herein, the aforementioned severance benefits may be
conditioned on execution of a release agreement acceptable to Lante in its sole
discretion.
(b) Sections 2 through 6 of this Agreement shall survive termination of
employment.
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8. General Provisions. This Agreement may be assigned by Lante and shall inure
to the benefit of Lante's successors and assigns. If any term, provision,
covenant or agreement hereof is held by a court to be invalid, void or
unenforceable, the remainder of the terms hereof shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois. This Agreement contains the entire contract between the parties. All
prior agreements between the parties regarding such matters or Employee's
employment (including without limitation the Prior Employment Agreement) are
superseded hereby and terminated. This Agreement may be executed in one or more
counterparts.
In Witness Whereof, the undersigned have executed this Agreement as of
August 13, 2001.
EMPLOYEE
/s/ Xxxxxxxx X. Xxxxx
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LANTE CORPORATION
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Printed Name
Vice President, Human Resources
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Title
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ANNEX I
Prior Employment Agreements: Employment Agreement between Employee and Lante,
dated April 26, 2000, and Amended and Restated Employment Agreement between
Employee and Lante dated August 13, 2001.
Option Grants:
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Grant Date Exercise Price Original Number of Vesting Schedule
Shares
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04/26/00 $19.25 60,000 25% vested 1 year after
issuance, additional
2.08333% vested each month
thereafter
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01/01/01 $1.375 30,000 2.777% monthly after
issuance
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07/01/01 $0.950 21,225 8.333% monthly after
issuance
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07/09/01 $0.880 50,000 25% vested 1 year after
issuance, additional
2.08333% vested each month
thereafter
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