GLOBAL SMOOTHIE SUPPLY, INC. Employment Agreement
This Employment Agreement ("Agreement")
is made and entered into by and between Xxxxxx X. Xxxxxxx ("Xxxxxxx") and The
Global Smoothie Supply, Inc. ("GSS"), collectively "the parties." The
effective date of this Agreement is upon receipt of funding by GSS in an amount
of not less than $1,000,000 in the aggregate (the "Effective
Date").
l. Position:
During the term of this Agreement, Xxxxxxx shall be employed by GSS as its Chief
Financial Officer and shall be elected a director of GSS's Board of Directors
(the "Board").
2. Term:
(a) GSS's
Commitment to Xxxxxxx: The initial term shall commence on the Effective Date and
continue until October 30, 2014.
(b) Xxxxxxx'
Commitment to GSS: Xxxxxxx commits to work for GSS during the initial term
(i.e., from the Effective Date through October 15, 2014).
3. Annual
Salary: Xxxxxxx' annual salary shall be One Hundred Fifty Thousand Dollars
($150,000.00), paid prorata in approximately equal amounts on the first and
fifteenth days of each calendar month, commencing on the Effective
Date. Such salary may be increased in the discretion of the Board,
but cannot be reduced.
4. Bonuses:
(a) Commencing
with the bonus period that ends on December 31, 2009, Xxxxxxx shall be eligible
to receive an annual performance bonus. The Board shall have discretion to award
such bonus to Xxxxxxx, as it may deem appropriate.
5. Termination
By Executive: Executive shall have no personal liability for damages to GSS for
voluntarily terminating his employment at any time, with or Without Good Reason,
so long as he gives at least thirty (30) days prior written notice.
6. Non-Competition:
If Xxxxxxx'x employment with GSS is terminated for any reason that entitles him
to receive severance benefits, they shall be at least equal to Xxxxxxx’ then
current salary for one year. In consideration therefore Xxxxxxx, for
a period of one year immediately following his last day of active service, shall
abide by the following covenants and restrictions:
(a) Non-Competition:
He shall not Participate in the management
of a business entity that deals in Covered Products, unless that
entity is merely a retailer or consumer of Covered Products, who does
not compete against GSS in any way.
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(b) Raiding
Employees: He shall not directly or indirectly solicit or encourage any Existing
GSS Employee to leave GSS or to accept any position with any other
company.
(c) Non-Disclosure:
He shall not use or disclose to anyone any Confidential Information
regarding GSS.
(d) Definitions:
The following definitions shall apply to the italicized terms used in
subsections 6(a) and 6(c) above:
(i) "Covered
Products" means any product which falls into one or more of the following
categories, so long as GSS is producing, marketing, distributing, selling or
licensing such product anywhere in the world: fruit puree smoothies, health and
sports drinks and beverages marketed as thirst quenchers or as healthy; and
items GSS produces for the food service market.
(ii) "Participate"
shall be construed broadly to include, without limitation:
(A) holding a position in
which Xxxxxxx directly manages such a business entity;
(B) holding
a position in which anyone else who directly manages such a business entity is
in Xxxxxxx'x reporting chain or chain-of command, regardless of the number of
reporting levels between them;
(C) providing
input, advice, guidance, or suggestions regarding the management of such a
business entity to anyone responsible therefor;
(D) providing
a testimonial on behalf of such an operation or the product it produces;
or
(E) doing
anything else which falls within a common sense definition of the term
"participate" as used in the present context.
(iii) "Existing GSS Employee" means
someone: (A) who became employed by GSS before Xxxxxxx'x active service
terminates; and (B) who is still employed by GSS as of the date when the
facilitating act or solicitation takes place; and (C) who holds a manager,
director or officer level position at GSS (or an equivalent position based on
job duties, regardless of the employee's title).
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(iv) "Confidential Information" shall
be construed as broadly as Texas law permits and shall include all non-public
information Xxxxxxx acquires by virtue of his positions with GSS which might be
of any value to a competitor or which might cause any economic loss (directly or
via loss of an opportunity) or substantial embarrassment to GSS or its
customers, distributors or suppliers if disclosed. Examples of such confidential
information include, without limitation, non-public information about GSS's
strategic or marketing plans; its customers, suppliers, and distributors; its
potential acquisition targets; its business operations and structure; its
product lines, formulas and pricing; its processes, machines and inventions; its
research and know-how; or its financial data.
(e) Remedies:
In the event of a breach or threatened breach of any term of subsections 6(a) or
6(d), GSS shall be entitled to injunctive relief and/or damages. The parties
agree that breach of these provisions would cause irreparable injury to GSS for
which there would be no adequate remedy at law, due among other reasons to the
inherent difficulty of determining the precise causation for loss of
customers/consumers or measuring the exact impact of losing key employees or
having Confidential Information disclosed.
(f) Recitals:
Xxxxxxx acknowledges that by virtue of the positions he will hold, he will
acquire Confidential Information, including without limitation knowledge of
operational plans, strategic long range plans, new product development,
marketing plans, sales plans, and distribution plans. Xxxxxxx also acknowledges
that by virtue of his positions, he will learn which Existing GSS Employees are
critical to GSS's success and will develop relationships he otherwise would not
have had with such employees.
7. Choice
Of Law And Forum:
(a) This
Agreement shall be governed by and construed in accordance with the laws of
Texas, without regard to choice of law principles.
(b) In
any litigation over this Agreement, both parties consent to submit to the
personal jurisdiction of any court, state or federal, in the State of Texas.
Such courts in Texas shall be the exclusive jurisdiction for any litigation over
this Agreement or an alleged breach thereof.
8. Attorney
Fees And Other Expenses:
(a) GSS
will pay all reasonable legal, accounting and other professional fees and
related expenses Xxxxxxx incurred in connection with the negotiation and
preparation of this Agreement.
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(b) If
Xxxxxxx and GSS become involved in litigation regarding the terms of his
employment with GSS or the termination thereof, the party which prevails shall
be entitled to reimbursement of all reasonable litigation costs and expenses,
including attorney fees. If each party prevails on one or more litigated issues,
the court shall exercise its equitable judgment to determine which, if either,
should be considered the prevailing party and the percentage of that party's
expenses which should be reimbursed, taking into account such factors as the
significance of the issue(s) on which each party prevailed, the reasonableness
of each party's position(s), and ability to pay.
9. Indemnification:
To the fullest extent permitted by law and GSS's by-laws, GSS shall indemnify
Xxxxxxx (including the advancement of expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
incurred by Xxxxxxx in connection with the defense of any lawsuit or other claim
to which he is made a party by reason of being an officer, director or employee
of GSS or any of its subsidiaries.
10. Binding
Effect: This Agreement shall be binding on and inure to the benefit of the heirs
and representatives of Xxxxxxx and the successors and assigns of GSS. GSS shall
require any successor (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock, liquidation or
otherwise) to all or a substantial portion of its assets to assume and agree to
perform this Agreement in the same manner and to the same extent that GSS would
be required to perform it if no such succession had taken place; provided,
Xxxxxxx shall have the same obligations to the successor as he would have had to
GSS. Regardless of whether such an agreement is executed, this Agreement shall
be binding on any successor of GSS in accordance with the operation of law, and
such successor shall be deemed "GSS" for all purposes under this
Agreement.
11. Notices:
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered anywhere by hand to
the applicable party, or if delivered by recognized commercial delivery service
or if mailed within the continental United States by first class certified mail,
return receipt requested, postage prepaid, addressed as follows:
(a) If
to the Board or GSS, addressed to: GSS, 0000 Xxxxxxxxxx Xxxx.,
Xxxxxx, Xxxxx 00000, Attention: Chief Legal Officer.
(b) If
to Xxxxxxx, addressed to: Xxxxxx X. Xxxxxxx, 0000
Xxxxxxxx
Xxxxx, Xxxxxxxx 00000.
Such addresses may be changed by
written notice sent to the other party at the last recorded address of that
party. Failure to send a copy to the applicable attorney shall not render a
Notice ineffective, so long as it is actually received by GSS or Xxxxxxx, as
applicable.
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12. Scope
of Agreement:
(a) This
Agreement supersedes any other document or oral agreement that conflicts with it
regarding any of the matters set forth herein, however, it is not intended to
pre-empt or supersede other documents, including plan documents, that provide
additional, non-conflicting rules or terms. Without limitation, nothing in this
Agreement shall eliminate or reduce Xxxxxxx'x obligation to comply with the Code
Of Ethics, to the extent that certain of its provisions (such as rules regarding
disclosure of confidential information) remain applicable to employees after
termination.
(b) No
promises or inducements have been made other than those reflected herein. This
Agreement cannot be amended except by a written agreement signed by the parties,
and only the Board has authority to authorize such an amendment on behalf of
GSS.
13. Severability:
Each term of this Agreement is deemed severable, in whole or in part, and if any
provision of this Agreement or its application in any circumstance is found to
be unlawful or invalid, the remaining terms and provisions shall remain in full
force and effect. In addition, a court may re-write the invalid provision(s) so
as to be consistent with applicable law and still, to the extent possible,
achieve the intended effect of this Agreement.
14. Execution
In Counterparts: This Agreement may be executed by the parties hereto in two (2)
or more counterparts, each of which shall be deemed to be an original, but all
such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
BY: /s/ Xxxxx X.
Xxxxxx
Xxxxx X. Xxxxxx, Chief Executive
Officer
Date: As of October 15,
2009
BY: /s/ Xxxxxx X.
Xxxxxxx
Xxxxxx X.
Xxxxxxx
Date: As of October 15,
2009
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