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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 16th day of January, 1997, between
VITA FOOD PRODUCTS, INC., a Nevada corporation (the "COMPANY") and XXX X.
XXXXXXX (the "EMPLOYEE").
RECITALS
WHEREAS, the Company is engaged in the business of processing and
manufacturing cured and smoked xxxxxxx and salmon products and distributing
other related products; and
WHEREAS, the Company has determined that in view of the Employee's
knowledge, expertise and experience in finance and accounting, the Employee's
services as chief financial officer of the Company will be of great value to
the Company, and accordingly, the Company desires to enter into this Agreement
with the Employee as set forth herein in order to secure such services; and
WHEREAS, the Employee desires to serve as chief financial officer of the
Company on the terms set forth herein.
NOW, THEREFORE, for and in consideration of the Employee's employment by
the Company, the above premises and the mutual agreements hereinafter set
forth, the Employee and the Company agree as follows:
1. DEFINITIONS.
(a) "CAUSE" means the Employee's (i) commission of any act of fraud
or dishonesty relating to and adversely affecting the business affairs of
the Company; (ii) conviction of any felony in connection with employment
by the Company; or (iii) habitual material failure after written notice
specifying such failure and a reasonable opportunity to cure such failure
to perform his material duties hereunder responsibly.
(b) "CHANGE IN CONTROL EVENT" means any of the following events: the
sale of all or substantially all of the assets of the Company; the
failure of the current members of the Company's Board of Directors (the
"BOARD") to constitute a majority of the Board; the sale or other
transfer of ownership or voting control of the majority of the voting
stock of the Company to any one entity/individual or to a group of
affiliated entities/individuals.
(c) "TOTAL DISABILITY" means the Employee's inability, through
physical or mental illness or accident, to perform the majority of his
usual duties and responsibilities hereunder (as such duties are
constituted on the date of the commencement of such disability) in the
manner and to the extent required under this Agreement for a period of at
least one hundred eighty (180) consecutive days. Total Disability shall
be deemed to have occurred on the first day following the expiration of
such one hundred eighty (180) day period.
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2. EMPLOYMENT; DUTIES.
(a) The Company agrees to employ the Employee as Vice President and
Treasurer - Chief Financial Officer of the Company with the duties and
responsibilities generally associated with such position and currently
performed by the Employee and such other reasonable additional
responsibilities and positions as may be added to the Employee's duties
from time to time by the Board consistent with the Employee's position.
(b) During the term of employment hereunder, Employee shall (i)
diligently follow and implement all management policies and decisions
communicated by the Board of Directors; and (ii) timely prepare and
forward to the Board all reports and accountings as may be requested.
(c) Employee's duties and responsibilities hereunder shall be
modified and/or excused during reasonable periods of absence due to
health or disability or vacation, as provided herein.
3. TERM. The term hereof shall commence on the date of this Agreement and
shall continue for a period of two (2) years (the "TERM").
4. COMPENSATION.
(a)(1) Employee shall be paid a base salary of One Hundred Ten
Thousand Dollars ($110,000) per year (the "BASE SALARY") for the twelve
(12) month period which began on October 14, 1996 and which ends on
October 13, 1997. The Base Salary shall accrue and be due and payable in
equal, or as nearly equal as practicable, weekly installments and the
Company may deduct from each such installment all amounts required to be
deducted and withheld in accordance with applicable federal and state
income, FICA and other withholding tax requirements. The Base Salary
shall be increased for the twelve (12) month period beginning on October
14, 1997 and ending on October 13, 1998 by a percentage equal to at least
the percentage increase in the cost of living. The Base Salary shall be
further increased for the period beginning on October 14, 1998 and ending
on the last day of the Term by a percentage equal to at least the
percentage increase in the cost of living.
(2) The Base Salary may be increased from time to time and at any
time by the Compensation Committee and approved by the Board, but shall
in no event be reduced or decreased below the highest level attained at
any time by Employee.
(3) If the Term shall begin on other than the first business day of
a calendar month and if the Term hereof shall terminate on other than the
last day of a calendar month, Employee compensation for such month shall
be prorated according to the number of days during such month that occur
within the Term.
(b) The Employee shall receive an annual bonus targeted between 25%
and 50% of his Base Salary based on the Company bonus plan and his
individual performance all as approved by the Compensation Committee and
by the Board (the "BONUS PAYMENT"). The Employee shall receive a minimum
Bonus Payment of $20,000 for the year ended December 31, 1997. All Bonus
Payments shall be paid on or
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before the 15th day of March following the year for which such Bonus
Payment was computed.
(c) While Employee is performing the services described herein, the
Company shall, upon request, reimburse Employee for all reasonable and
necessary expenses incurred by Employee in connection with the
performance of duties of employment hereunder.
(d) If the Company now maintains or, while Employee renders services
to the Company, establishes an incentive or other compensation plan
(however described or denominated) for the corporate, operating or
executive officers or other management of the Company, or if the Company
now maintains or, while Employee renders services to the Company,
establishes any other benefit program(s) (however described or
denominated) for corporate, operating or executive officers or other
management employees of the Company, Employee shall be eligible to fully
participate in each such plan or benefit program.
(e) During the Term, the Company shall provide health, medical,
disability and term life insurance to Employee in accordance with any
group plan which it now maintains or which may hereafter be established
by the Company.
(f) Employee shall receive not less than three (3) weeks paid
vacation during each twelve (12) month period of employment. Such
vacation period may be increased from time to time and at any time by the
Board but shall in no event be shortened to less than the longest period
attained by Employee at any time during his employment.
(g) On October 14, 1996, the Employee was granted incentive stock
options to purchase 80,000 shares of common stock pursuant to the
Company's 1996 Employee Stock Option Plan. The incentive stock option
will vest at the rate of 20% per year over five years (i.e. one year from
the date the incentive stock options are granted, options to purchase
16,000 shares of common stock will become exercisable).
5. TERMINATION.
(a) Employee's employment may be terminated only as follows:
(1) By the Company: For Cause; or
(2) By the Employee: (a) because of a breach of this
Agreement by the Company which is not cured within ten (10) days
after written notice of such breach is delivered to the Company; or
(b) if a Change in Control Event occurs; or (c) if the Company
enters into a contract to relocate or does actually relocate its
offices to a location which is more than fifty (50) miles from its
current offices; or
(3) Upon death of the Employee; or
(4) Upon the Total Disability of the Employee.
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(b) In the event that employment is terminated by Employee pursuant
to Section 5(a)(2)(c) or is terminated due to the Employee's death or
Total Disability, the Company will be obligated to pay to the Employee
the full amount of Base Salary earned by Employee through the effective
date of termination or death, as the case may be.
(c) In the event that employment is terminated by the Company for
Cause, the Company will have no obligations to pay any amount beyond the
effective date of such termination whether as Base Salary, Bonus Payment
or otherwise to provide any benefits arising hereunder or otherwise
except as required by law.
(d) In the event that employment with the Company is terminated
within one hundred eighty (180) days after a Change of Control Event,
either voluntarily or involuntarily, whether by the Company or Employee:
(i) The Company shall pay Employee on the date of such
termination an amount equal to two times his Base Salary and Bonus
for the last full fiscal year prior to the Change in Control Event
or an amount equal to $260,000 if such termination occurs prior to
January 1, 1998.
(ii) All stock options granted by the Company to Employee
under Section 4(g) shall become immediately vested and exercisable
in accordance with their terms.
6. CONFIDENTIAL INFORMATION. Employee acknowledges that the nature of his
engagement by the Company is such that Employee shall have access to
information of a confidential and/or trade secret nature which has great value
to the Company. Such information includes financial, manufacturing and
marketing data, business plans and methods, processes, product formulas,
developmental work, work in process, methods, trade secrets (including, without
limitation, customer lists, supplier lists and lists of customer, supplier and
food broker sources), and any other information relating to the products,
services, customers, sales or business affairs of the Company, which has value
and is treated as secret and/or confidential by the Company (the "CONFIDENTIAL
INFORMATION"). The Company has and will also have access to Confidential
Information of its suppliers ("SUPPLIERS" means any persons with whom the
Company has a co-packing or joint venture relationship with or who supplies any
products or materials to the Company). Confidential Information includes not
only information disclosed by the Company or its Suppliers to Employee in the
course of employment, but also information developed or learned by Employee
during the course of employment with the Company. Confidential Information is
to be broadly defined. Confidential Information includes all information that
has or could have commercial value or other utility in the business in which
the Company or Suppliers are engaged or in which they contemplate engaging.
Confidential Information also includes all information of which the
unauthorized disclosure could be detrimental to the interests of the Company or
Suppliers, whether or not such information is identified as Confidential
Information by the Company or Suppliers. You agree to keep all Confidential
Information that could be materially detrimental to the interests of the
Company or Suppliers in confidence during the term of this Agreement and at any
time thereafter and shall not use, disclose, publish or otherwise disseminate
any of such Confidential Information to any other person, except to the extent
such disclosure is (i) necessary to the performance of this Agreement and in
furtherance of the Company's best interests, (ii) required by applicable law,
(iii) lawfully obtainable from other sources, (iv) authorized in writing by the
Company, (v) no
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longer qualifies as a trade secret or confidential information
under applicable law, or (vi) necessary to enforce this Agreement. Upon
termination of employment with the Company, Employee shall deliver to the
Company all documents, records, notebooks, work papers, and all similar
material containing Confidential Information, whether prepared by Employee, the
Company or anyone else.
7. NON-COMPETITION. In order to protect the Confidential Information,
Employee agrees that during the term of employment, and for a period of one (1)
year thereafter, Employee will not, directly or indirectly, whether as an
owner, partner, shareholder, agent, employee, creditor, or otherwise, promote,
participate or engage in any activity or other business directly competitive
with the Company's then existing business if such activity or other business
involves any use of any of the Confidential Information by Employee.
8. NON-SOLICITATION OF CUSTOMERS OR SUPPLIERS. Employee agrees that for a
period of one (1) year after the termination of employment with the Company,
Employee will not, on his own behalf or on behalf of an other individual,
association or entity, call on any of the customers or Suppliers of the Company
for the purpose of soliciting or inducing any of such customers to acquire (or
providing to any of such customers) or any of the Suppliers to provide any
product or service provided by or to the Company, nor will Employee in any way,
directly or indirectly, as agent or otherwise, in any other manner solicit,
influence or encourage such customers or Suppliers to take away or to divert or
direct their business away from the Company to Employee or to any other person
or entity with which Employee is employed, associated, affiliated or otherwise
related.
9. NONINTERFERENCE WITH EMPLOYEES. In order to protect the Confidential
Information, Employee agrees that during the term hereof and for a period of
one (1) year thereafter, Employee will not, directly or indirectly, induce or
entice any employee of the Company with access to or possession of Confidential
Information, to leave such employment or cause anyone else to leave such
employment.
10. REMEDIES. The parties hereto agree that the services to be rendered
by Employee pursuant to this Agreement, and the rights and privileges granted
to the Company pursuant to this Agreement, are of a special, unique,
extraordinary and intellectual character, which gives them a peculiar value,
the loss of which cannot be reasonably or adequately compensated in damages in
any action at law, and that a breach by Employee of any of the terms of this
Agreement will cause the Company great and irreparable injury and damage.
Employee hereby expressly agrees that the Company shall be entitled to the
remedies of injunction, specific performance and other equitable relief to
prevent a breach of this Agreement by Employee. This Section 10 shall not be
construed as a waiver of any other rights or remedies which the Company may
have for damages or otherwise.
11. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, the same shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein.
12. ASSIGNMENT. This Agreement and the rights and obligations of the
parties hereunder may not be assigned by either party hereto without the prior
written consent of the other party hereto.
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13. NOTICES. Except as otherwise specifically provided herein, any notice
required or permitted to be given to Employee pursuant to this Agreement shall
be given in writing, and personally delivered or mailed to Employee by
certified mail, return receipt requested, at the address set forth below
Employee's signature on this Agreement or at such other address as Employee
shall designate by written notice to the Company given in accordance with this
Section 13, and any notice required or permitted to be given to the Company
shall be given in writing, and personally delivered or mailed to the Company by
certified mail, return receipt requested, addressed to the Company at the
address set forth under the signature of the President of the Company or his
designee on this Agreement or at such other address as the Company shall
designate by written notice to Employee given in accordance with this Section
13. Any notice complying with this Section 13 shall be deemed received upon
actual receipt by the addressee.
14. WAIVER. The waiver by either party hereto of any breach of this
Agreement by the other party hereto shall not be effective unless in writing,
and no such waiver shall operate or be construed as the waiver of the same or
another breach on a subsequent occasion.
15. GOVERNING LAW. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Illinois.
16. BENEFICIARY. All of the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, heirs, executors, administrators and
permitted assigns.
17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereto relating to Employee's employment by the Company in the capacity
herein stated and, except as specifically provided herein, no provisions of any
employee manual, personnel policies, Company directives or other agreement or
document shall be deemed to modify the terms of this Agreement. No amendment or
modification of this Agreement shall be valid or binding upon Employee or the
Company unless made in writing and signed by the parties hereto. All prior
understandings and agreements relating to Employee's employment by the Company,
in whatever capacity, are hereby expressly terminated.
18. CONFIDENTIALITY. The terms, conditions and existence of this
Agreement shall be confidential.
IN WITNESS WHEREOF, Employee and the Company have executed and delivered
this agreement as of the date first shown above.
EMPLOYEE: THE COMPANY:
XXX X. XXXXXXX VITA FOOD PRODUCTS, INC.
__________________________________ By:_______________________________
Address:___________________________ Printed Name:______________________
___________________________ Title:______________________________
___________________________ Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
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