EMPLOYMENT AGREEMENT
Xxxxxx - AgriBioTech, Inc.
THIS EMPLOYMENT AGREEMENT sets forth the agreement reached August 5, 1998
(at which point the stock options were priced) by and between XXXXX XXXXXX
(hereinafter referred to as "Xxxxxx") and AgriBioTech, Inc., a Nevada
corporation (hereinafter referred to as "ABT").
WITNESSETH
WHEREAS, ABT desires to employ Xxxxxx; and
WHEREAS, Xxxxxx desires to accept such employment with ABT; and
WHEREAS, Xxxxxx and ABT desire to set forth their employment relationship
in a written agreement.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1.00 - EMPLOYMENT
1.01 EMPLOYMENT. ABT hereby offers to employ Xxxxxx upon the terms and
conditions hereinafter set forth, and Xxxxxx accepts such offer.
1.02 DUTIES. Xxxxxx'x initial title shall be Vice President, Assistant CFO,
Director Business Development. Xxxxxx shall report directly to the President,
COO of ABT. Primary duties of Xxxxxx shall include investment analysis,
development of strategic fit for newly acquired companies, participation in
strategic business planning efforts and to develop and supervise a capital
investment review process. Xxxxxx shall also perform all services reasonably
required by ABT in furtherance of ABT's business purposes as determined, from
time to time, by ABT. Xxxxxx acknowledges that ABT may change his/her duties
and/or title from time to time. Xxxxxx shall diligently utilize his/her talents,
experience and expertise to carry out Xxxxxx'x duties and achieve ABT's mission
statement and goals. Xxxxxx will work only for AgriBioTech, Inc. and its
subsidiaries, as may be needed except as may be mutually agreed by Xxxxxx and
ABT.
ARTICLE 2.00 - TERM AND TERMINATION
2.01 TERM. ABT agrees to employ Xxxxxx in the above position commencing on
or about September 15, 1998 (exact date subject to timing of Xxxxxx leaving
current position) and continuing until terminated pursuant to 2.02 below.
2.02 TERMINATION. This Agreement may be terminated as follows:
A. ABT may terminate this Agreement immediately with Cause. "Cause" means:
1) Xxxxxx'x failure or refusal to adequately perform the employment
duties hereunder or assigned to Xxxxxx by ABT's Board of Directors;
2) the commission by Xxxxxx of any willful or intentional act which
reasonably could be expected to injure the reputation, business or
business relationships of ABT and/or Xxxxxx, and/or create a legal
exposure for ABT as a result of Xxxxxx'x wrongdoing.
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3) Xxxxxx'x violation of ABT's Codes of Conduct or other significant
policies, as set forth by ABT in its Employee Manual or other company
policies as issued from time to time;
4) Xxxxxx'x conviction of a felony or of any crime involving
misrepresentation, moral turpitude or fraud; or
5) Xxxxxx'x breach of or nonadherence to Xxxxxx'x other covenants
hereunder or other agreements with ABT, and the failure to cure said
breach or nonadherence within thirty (30) days of written notice
thereof from ABT.
B. Termination as a result of management change: It is understood and agreed
that the current Chief Executive Officer, Xxxxxx X. Xxxxxx, desires Xxxxxx
to become an integral part of the core management team. It is understood
that both the Corporation and Xxxxxx xxxx for a long term relationship. In
the event there is a change in the Chief Executive Officer of the
Corporation and at any time thereafter (i) the Employee is terminated or
(ii) in the sole determination of the Employee, there is a significant
adverse change in the duties, responsibilities, or compensation of the
Employee, then employee shall immediately be vested in full on all stock
options referenced in Section 3.02 and shall be entitled to receive a
payment equal to (a) his full Compensation as set forth in section 3.01 for
two (2) years from the date of such termination or determination, less $1,
and (b) other employee benefits (excluding long term disability and life
insurance) for two (2) years from the date of such termination or
determination. In Addition to the foregoing, for a period of one (1) year
following any such change of the Chief Executive Officer, Employee shall
have the option of termination of this Agreement without justification and,
in such event, will be entitled to (i) immediately be vested in the stock
options referenced in Section 3.02 which would otherwise become vested on
the next anniversary of employment following such termination and (ii)
receive his full Compensation as set forth in Section 3.01 and other
employee benefits for one (1) year following such termination.
C. This Agreement shall terminate immediately upon the death of Xxxxxx, in
which event, Xxxxxx'x heirs may exercise options which become vested within
one year of the termination as specified in the option agreement.
D. This Agreement shall terminate upon ten (10) working days notice by the
Corporation if, in the opinion of ABT, Xxxxxx becomes substantially unable
to perform services required pursuant to this Agreement because of mental,
emotional or physical illness or injury, provided that ABT act, in
accordance with the provisions of the Americas with Disabilities Act, the
Family and Medical Leave Act, and any other relevant state or federal law.
E. ABT may terminate this Agreement (and the employment relationship between
ABT and Xxxxxx) without cause and for any reason or for no reason upon ten
(10) working days notice.
F. In the event ABT terminates this Agreement without cause pursuant to
2.02(E), Xxxxxx:
1. Will be immediately vested in the stock options referenced in Section
3.02 which would otherwise become vested on the next anniversary of
employment following such termination;
2. Will receive his/her full salary as set forth in Section 3.01 (payable
on ABT's regular paydays) for a period of twelve months; and
3. Any bonus or any benefits, except that medical insurance will be
available through COBRA, upon Xxxxxx payment of COBRA premiums.
G. This Agreement shall terminate upon ten (10) working days notice to ABT by
Xxxxxx, provided that upon receipt of such notice, ABT may elect to pay
Xxxxxx two weeks pay in lieu of notice and the Agreement shall terminate
effective immediately. In the event Xxxxxx so elects to terminate this
Agreement, ABT has no obligation to make any separation or severance
payments to Xxxxxx, and Xxxxxx has no rights to exercise any stock options
exercisable on dates after the termination of this Agreement.
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H. Termination of this Agreement shall not relieve the parties hereto of any
rights or obligations which specifically survive the termination of this
Agreement.
2.03 XXXXXX'X OBLIGATIONS AT TERMINATION. At termination of this Agreement
Xxxxxx shall:
A. Return all ABT equipment, documents, computerized data or programs,
and any other ABT property or material in the possession or control of
Xxxxxx;
B. Abide by the provisions of this Agreement which survive termination of
this Agreement, including but not limited to, paragraph 4.02(E),
Articles 5.00 and 6.00; and
C. Abide by any other ABT policies governing the obligations of
terminated employees, as set forth from time to time in ABT's employee
manual or other ABT policies.
ARTICLE 3.00 - COMPENSATION
3.01 SALARY. ABT shall pay Xxxxxx, as consideration for his/her services, a
salary equal to an annual rate of $150,000. Xxxxxx shall be eligible for an
increase in salary annually beginning July 22. Such increase, if any, will be
determined by ABT, in its sole discretion, after annual review. The salary will
be payable in equal bi-weekly installments, less deductions for income tax and
FICA withholding and any other deductions as authorized by Xxxxxx or required by
law.
3.02 STOCK OPTIONS. Xxxxxx shall be granted 250,000 options to purchase
ABT's common stock. Ownership in said options shall vest on the following
schedule, subject to Xxxxxx continuing employment with ABT on the vesting date
(unless otherwise set forth in Article 2.02 (B) and (D)):
A) 50,000 vest at the signing of this Agreement, exercisable at $15.5625
per share;
B) 50,000 vest on the first anniversary of employment, exercisable at
$15.5625 per share;
C) 50,000 vest on the second anniversary of employment, exercisable at
$15.5625 per share;
D) 50,000 vest on the third anniversary of employment, exercisable at
$15.5625 per share; and
E) 50,000 vest on the fourth anniversary of employment, exercisable at
$15.5625 per share.
3.03 BONUS. In order to reflect any outstanding contribution to ABT by
Xxxxxx, ABT may pay Xxxxxx, in addition to the compensation for services
described in Section 3.01 above, a bonus in an amount determined by ABT in its
sole discretion
3.04 VACATION. During the term of this Agreement, Xxxxxx shall be eligible
for vacation pursuant to the terms of the ABT Employee Manual, during which time
Xxxxxx'x compensation shall be paid in full, provided, however, that Xxxxxx will
be granted an accrual for two (2) weeks of vacation upon commencement of
employment and will be eligible to take any accrued vacation upon commencement
of employment.
3.05 BENEFITS. During the term of this Agreement, Xxxxxx shall be eligible
to receive insurance and other Employee benefits generally available to
Employees of ABT pursuant to the terms of the various employee benefit plans.
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ARTICLE 4.00 - SPECIFIC OBLIGATIONS OF THE PARTIES
4.01 ABT'S OBLIGATIONS. ABT shall provide Xxxxxx with and pay Xxxxxx'x
expenses for the following:
A. Such equipment, materials and supplies as Xxxxxx reasonably requires
for the performance of his services;
B. Costs, including meals, lodging, and transportation reasonably
incurred by Xxxxxx to fulfill his duties and responsibilities to ABT;
and
C. Pre approved expenses for professional dues, tuition, publications,
and continuing professional education, pursuant to ABT's policies for
such expenses.
4.02 XXXXXX'X OBLIGATIONS. Xxxxxx agrees that during the term of this
Agreement, he/she shall:
A. Faithfully and to the best of his/her ability and skill serve ABT and
perform his/her duties pursuant to this Agreement;
B. Maintain records in the manner established by ABT;
C. Keep current all records, reports, insurance records and clerical work
required by ABT;
D. Abide by the practices, policies and codes of conduct set forth in
ABT's policies and practices, as disseminated from time to time,
except as expressly modified in this Agreement; and
E. Disclose and assign to ABT Xxxxxx'x entire rights in all inventions,
ideas, intellectual property, designs, trademarks, copyrights,
discoveries, formulae, processes, manufacturing techniques, trade
secrets, inventions, improvements, ideas or copyrightable works
relating to Xxxxxx'x work at ABT or that which is aided by the use of
ABT's equipment, supplies, facilities or trade secret information.
Xxxxxx agrees to execute whatever documents are necessary to effect
such assignment as requested from time to time by ABT.
ARTICLE 5.00 - COVENANTS
5.01 COVENANT NOT TO COMPETE. ABT and Xxxxxx acknowledge and confirm that
Xxxxxx shall not compete with ABT while employed by ABT or for a one-year period
after employment ceases (the "Non-Compete Period"). "Compete" shall mean any
relationship with any entity whose primary business is based on turf grass,
forage grass or alfalfa seed products in any geographic area serviced by ABT.
5.02 COVENANT FOR PROTECTION OF CONFIDENTIAL AND/OR PROPRIETARY
INFORMATION. ABT and Xxxxxx recognize that during the course of Xxxxxx'x
employment, Xxxxxx will have access to information which ABT and its affiliated
companies deem proprietary and/or confidential (hereinafter referred to as
"Information").
In order to protect the Information, during the period of Xxxxxx'x
employment with ABT and thereafter, for an unlimited period, Xxxxxx shall not
disclose Information he/she receives or has received from ABT or its affiliated
companies that is proprietary and/or confidential in nature, including, but not
by way of limitation, Information marked PROPRIETARY or CONFIDENTIAL or STRICTLY
PRIVATE or INTERNAL DATA, to any other person, firm or company, or use it for
his own benefit except as provided herein, and shall use such care to safeguard
the information as is set forth in ABT's Employee Manual or other policies, and,
in any event, shall use no less stringent degree of care to avoid disclosure or
use of such Information than Xxxxxx employs with respect to his/her own
proprietary and/or confidential information which he/she does not wish to be
disseminated, published or disclosed.
The parties hereto agree that Information shall not be deemed proprietary
and/or confidential and Xxxxxx shall have no obligation with respect to any such
Information which:
A. Is or becomes publicly known through no wrongful act of Xxxxxx;
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B. Is furnished to a third party by ABT and its affiliated companies
without a similar restriction on the third party's rights; or
C. Is approved for release by written authorization of ABT or its
affiliated companies.
In the event Information in Xxxxxx'x possession should be lost, stolen or
otherwise compromised, Xxxxxx shall promptly notify ABT by phone, and follow up
with a detailed report in writing within ten (10) days. Xxxxxx shall then follow
ABT's requests to recover such information.
Xxxxxx shall return at any time upon ABT's request, and/or upon termination
of this Agreement, all tangible forms of Information including documents,
drawings, computerized data or programs, specifications, devices, models or any
other material.
5.03 ENFORCEMENT OF COVENANTS. Xxxxxx and ABT agree that the periods set
forth in this Article 5.0 are reasonable and further that the periods set forth
in this Article 5.00 do not terminate at the termination of this Agreement, but
shall continue throughout any period of affiliation with ABT, and for any stated
period thereafter.
5.04 DEFINITION OF AFFILIATION. Affiliation, as used in this Article, shall
mean any proprietary, employment or fiduciary relationship of Xxxxxx with ABT
and its affiliated companies, including, but not limited to, the position of
Xxxxxx as director, officer, Xxxxxx or consultant of ABT or its affiliated
ABT's.
5.05 SURVIVAL. This Article 5.00, and its obligations shall survive any
termination of this Agreement.
ARTICLE 6.00 - MISCELLANEOUS
6.01 UNFAVORABLE STATEMENTS. Xxxxxx agrees not to directly or indirectly
defame, disparage, libel or otherwise convey an unjust unfavorable impression of
ABT or the business or businesses operated by ABT and its subsidiaries. Xxxxxx
further agrees that he will not make public comments on the reason for his
termination of employment with ABT.
6.02 COOPERATION IN CLAIMS. Xxxxxx agrees to assist ABT in representing
ABT's interests with respect to claims and litigation brought by or against ABT
arising during or relating to Xxxxxx'x employment with ABT.
6.03 NONSOLICITATION. Xxxxxx agrees that during the term of his employment
with ABT and for a period of 2 years after termination of this Agreement, Xxxxxx
shall not interfere with ABT's employment and business relationships with ABT
employees, customers, vendors or other such affiliated entities, and that Xxxxxx
will not solicit any current employees of ABT to leave the employ of ABT.
6.04 SURVIVAL. This article 6.00 and its obligations shall survive any
termination of this Agreement.
ARTICLE 7.00 - DISPUTE RESOLUTION
7.01 NOTICE OF DISPUTE. Xxxxxx and ABT agree to make good faith efforts to
resolve any disputes under this Agreement (except as set forth in Article 7.02)
by giving the other party 30 days prior notice before commencing any legal
action regarding the Agreement. In the event such dispute is not resolved after
good faith efforts, ABT may, but is not required to, submit the dispute to
arbitration in Las Vegas in accordance with the rules of the American
Arbitration Association then in effect, and, if ABT does so, Xxxxxx agrees to
such arbitration as the exclusive remedy for the dispute. Judgment may be
entered on the arbitrator's award in any court having jurisdiction.
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7.02. ENFORCEMENT OF COVENANTS. The covenants in Articles 5.00 and 6.00 may
be enforced by specific performance or any available legal or equitable remedy,
including, but not by way of limitation, temporary restraining orders or
preliminary and permanent injunctions, and ABT and its affiliated companies
shall be entitled to recover from Xxxxxx all court costs and reasonable
attorney's fees incurred in enforcing these covenants. The remedies hereunder
shall not be exclusive of each other, but shall be cumulative
ABT may seek specific enforcement of these covenants without resort to the
informal dispute resolution provision of Article 7.01
7.03. ATTORNEY'S FEES. In the event of a dispute under this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and costs
expended in such action, including but not limited to, attorney's fees arising
from any arbitration proceeding.
ARTICLE 8.00 - GENERAL MATTERS.
8.01 NEVADA LAW. This Agreement shall be governed by the laws of the State
of Nevada and shall be construed in accordance therewith.
8.02 NO WAIVER. No provision of this Agreement may be waived except by an
agreement in writing signed by the waiving party. A waiver of any term or
provision shall not be construed as waiver of any other term or provision.
8.03 BINDING EFFECT. This Agreement shall be binding upon the parties,
their heirs, executors, administrators, successors or assignees. The parties
agree to do any and all things necessary to effectuate the purpose of this
Agreement.
8.04 CONSTRUCTION. Throughout this Agreement, the singular shall include
the plural; the plural shall include the singular; and the masculine and neuter
shall include the feminine, wherever the context so requires.
8.05 TEXT TO CONTROL. The headings of articles and sections are included
solely for convenience of reference. If any conflict between any heading and the
text of this Agreement exists, the text shall control.
8.06 SEVERABILITY. If any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid for any reason, such invalidity
shall not affect the remaining provisions. On the contrary, such remaining
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such invalid provisions never had been inserted in this
Agreement.
8.07 AMENDMENT. This Agreement may be amended, altered or revoked at any
time, in whole or in part, by filing with this Agreement a written instrument
setting forth such changes, signed by ABT and Xxxxxx.
8.08 NOTICES. All notices required to be given by this Agreement shall be
made in writing either by:
A. Personal delivery to the party requiring notice with written
confirmation of receipt; or
B. Mailing notice in the U.S. mails to the last known address of the
party requiring notice, which shall be the address shown on the
records of ABT for Xxxxxx, and the corporate headquarters of ABT for
ABT, attention CEO, by certified mail, return receipt requested.
The effective date of the notice shall be the date of the written receipt
received upon delivery in Paragraph A above or four (4) days after the date the
notice was delivered to the U.S. mail as posted on the receipt in Paragraph B
above.
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The parties hereby execute this Employment Agreement on the day and year
first written above.
AGRIBIOTECH, INC.
/s/ Xxxx Xxxxxxx
-------------------------------
Xxxx Xxxxxxx
EMPLOYEE:
/s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
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