EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of December 1, 1999, by and between Verdant
Brands, Inc. a Minnesota corporation (the "Company"), and Xxxx X. Xxxxxxxxx , an
individual resident of Minneapolis, Minnesota ("Executive").
WHEREAS, Executive has heretofore been rendering services for the Company
as its Chief Operating Officer; and
WHEREAS, the Company and Executive wish to restate the terms and conditions
upon which Executive will render services for the Company or its affiliates in
the future.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Company and Executive set forth below, the Company and
Executive agree as follows:
1. Employment. The Company hereby employs Executive, and Executive
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accepts such employment and agrees to perform services for the Company or its
affiliates, for the period and upon the other terms and conditions set forth in
this agreement.
2. Term. The term of Executive's employment hereunder shall be deemed to
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commence on the date of this agreement and shall continue until terminated in
accordance with section 8 of this agreement (the "Term").
3. Position and Duties.
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3.01 Service with Company. During the Term, Executive agrees to
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perform such reasonable employment duties as the Board of Directors of the
Company shall assign to him from time to time. Executive shall have the titles
of President and Chief Executive Officer and shall serve as a director of the
Company; provided, however, that Executive shall not be entitled to any
additional compensation for serving as an officer or director.
3.02 Performance of Duties. Executive agrees to serve the Company and
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its affiliates faithfully and to the best of his ability and to devote his full
time, attention and efforts to the business and affairs of the Company or its
affiliates during the Term. Executive hereby confirms that he is under no
contractual commitments inconsistent with his obligations set forth in this
agreement, and that during the term of this agreement, he will not render or
perform services for any other corporation, firm, entity or person which are
inconsistent with the provisions of this agreement.
4. Compensation.
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4.01 Base Salary. As compensation for all services to be rendered
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by Executive under this agreement during the first year of the Term, the Company
shall pay to Executive a base salary of $200,000, which salary shall be paid on
a semi-monthly basis in accordance with the Company's normal payroll procedures
and policies. The base salary payable to Executive during each subsequent year
during the Term shall be reviewed and adjusted by the Company's Board of
Directors annually, but in no event shall the base salary for any year be less
than the base salary for the previous year.
4.02 Incentive Compensation. In addition to the base salary described
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in section 4.01, Executive shall be eligible to participate in an executive
compensation incentive plan that will provide
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for aggregate bonus payments of up to 60% of base salary based on a combination
of financial and non-financial objectives that are established by the Company's
Board of Directors.
4.03 Automobile Allowance. In addition to the compensation described
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in sections 4.01 and 4.02, the Company shall provide Executive with an
automobile allowance of $500 per month to cover the costs associated with owning
and operating an automobile for business purposes.
4.04 Participation in Benefit Plans. Executive shall be entitled to
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participate in all employee benefit plans or programs of the Company to the
extent that his position, title, tenure, salary, age, health and other
qualifications make him eligible to participate. The Company does not guarantee
the adoption or continuance of any particular employee benefit plan or program
during the term of this agreement, and Executive's participation in any such
plan or program shall be subject to the provisions, rules and regulations
applicable thereto. In addition, the Company shall make reimburse Executive, up
to an annual amount not to exceed Five Thousand Dollars ($5,000), for the
premium costs incurred by Executive for life insurance and long-term disability
income insurance policies which Executive maintains personally.
4.05 Expenses. The Company will pay or reimburse Executive for all
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reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this agreement, subject to the presentment of
appropriate vouchers in accordance with the Company's normal policies for
expense verification.
4.06 Incentive Stock Options. Effective as of the date of next annual
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meeting of the shareholders of the Company and subject to the approval by the
shareholders of an amendment to the Company's employee incentive stock option
plan to permit the Company is issue options for the purchase of more than
100,000 shares in any calendar year, the Company shall issue to Executive
incentive stock options for the purchase of 150,000 shares of the Company's
common stock at an exercise price equal to the fair market value of the
Company's common stock on the date of issuance of such stock options. Such stock
options shall vest in equal monthly installments over a three (3) year period.
In the event Executive is terminated by the Company without "Cause" or following
a "Change of Control" (as such terms are defined in section 8.05), all unvested
options shall become fully vested and immediately exercisable.
5. Confidential Information. Except as permitted or directed by the
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Company's Board of Directors, during the term of this agreement or at any time
thereafter Executive shall not divulge, furnish or make accessible to anyone or
use in any way (other than in the ordinary course of the business of the
Company) any confidential or secret knowledge or information of the Company
which Executive has acquired or become acquainted with or will acquire or become
acquainted with prior to the termination of the period of his employment by the
Company (including employment by the Company or any affiliated companies prior
to the date of this agreement), whether developed by himself or by others,
concerning any trade secrets, confidential or secret designs, processes,
formulae, plans, devices or material (whether or not patented or patentable)
directly or indirectly useful in any aspect of the business of the Company, any
customer or supplier lists of the Company, any confidential or secret
development or research work of the Company, or any other confidential
information or secret aspects of the business of the Company. Executive
acknowledges that the above-described knowledge or information constitutes a
unique and valuable asset of the Company and represents a substantial investment
of time and expense by the Company and its predecessors, and that any disclosure
or other use of such knowledge or information other than for the sole benefit of
the Company would be wrongful and would cause irreparable harm to the Company.
Both during and after the term of this agreement, Executive will refrain from
any acts or omissions that would reduce the value of such knowledge or
information to the Company. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known in the
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form in which it was obtained from the Company, other than as a direct or
indirect result of the breach of this agreement by Executive.
6. Ventures. If, during the term of this agreement, Executive is engaged
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in or associated with the planning or implementing of any project, program or
venture involving the Company and a third party or parties, all rights in such
project, program or venture shall belong to the Company. Except as formally
approved by the Company's Board of Directors, Executive shall not be entitled to
any interest in such project, program or venture or to any commission, finder's
fee or other compensation in connection therewith other than the salary to be
paid to Executive as provided in this agreement.
7. Noncompetition Covenant.
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7.01 Agreement Not to Compete. Executive agrees that, during the term
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of his employment by the Company or its affiliates and for a period of two (2)
years after the termination of such employment (whether such termination is
occasioned by Executive or the Company), he shall not, directly or indirectly,
engage in competition with the Company in any manner or capacity (e.g., as an
advisor, principal, agent, partner, officer, director, stockholder, employee,
member of any association, or otherwise) in any phase of the business which the
Company is conducting during the period of Executive's employment with the
Company, including the development, manufacture, distribution, marketing, or
selling of products, accessories, devices or systems relating to, the products
or services being sold by the Company or its affiliates.
7.02 Geographic Extent of Covenant. The obligations of Executive
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under section 7.01 shall apply to any geographic area in which the Company or
its affiliates:
(a) have engaged in business during the term of this agreement
through production, promotional, sales or marketing activity, or otherwise,
or
(b) have otherwise established their goodwill, business reputation,
or any customer or supplier relations.
7.03 Limitation on Covenant. Ownership by Executive, as a passive
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investment, of, an immaterial amount of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this section 7.
7.04 Indirect Competition. Executive further agrees that, during the
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term of this agreement, he will not, directly or indirectly, assist or,
encourage any other person in carrying out, directly or indirectly, any activity
that would be prohibited by the above provisions of this section 7 if such
activity were carried out by Executive, either directly or indirectly; and in
particular Executive agrees that he will not, directly or indirectly, induce any
employee of the Company or its affiliates to carry out, directly or indirectly,
any such activity. Executive further agrees that, Executive will not hire,
directly or indirectly, any individual who is an employee of the Company or its
affiliates at the time of termination.
8. Termination.
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8.01 Termination by the Company. This agreement may be terminated by
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the Company at any time upon the occurrence of any of the following events:
(a) Executive shall die, or
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(b) The Board of Directors of the Company has determined (with
Executive abstaining from such determination if he is then a member of the
Board of Directors) that Executive has become disabled, or
(c) The Board of Directors of the Company shall notify Executive
that the agreement is being terminated for "Cause", or
(d) Either the Company or Executive elects to terminate this
agreement (which election may be made with or without cause) and gives the
other party at least sixty (60) days prior written notice of such election,
or
(e) Executive shall notify the Company within six (6) months of
Change of Control that he is terminating his employment with the Company.
Notwithstanding any termination of this agreement, Executive, in
consideration of his employment hereunder to the date of such termination, shall
remain bound by the provisions of this agreement which specifically relate to
periods, activities or obligations upon or subsequent to the termination of
Executive's employment.
8.02 Severance Payments.
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(a) If Executive's employment with the Company is terminated by the
Company pursuant to subsection 8.01(d) without "cause" or is terminated by
Executive pursuant to subsection 8.01(e), the Company shall use its best
efforts to assist Executive in obtaining new employment and, in furtherance
of such commitment, shall provide Executive with up to $12,000 in out-
placement services. Subject to the provisions of subsection (b) of this
section 8.02, in the event of such termination, the Company shall also pay
to Executive, as severance pay, (i) his base monthly salary for a period of
twenty four (24) months after the date of termination of employment, and
(ii) an amount equal to the average bonus paid to Executive for the two (2)
years immediately prior to the year of termination for employment, and
shall continue to provide health insurance benefits for Executive (or, at
the Company's option, to reimburse Executive for the cost to him of
maintaining comparable health insurance benefits) for a period of twelve
(12) months after the date of termination of employment. The base salary
payments shall continue to be made on a monthly basis. The bonus payment
shall be paid to Executive in one (1) lump sum within thirty (30) days
after the date of termination.
(b) In the event of any termination of the employment of Executive
by the Company pursuant to subsection 8.01(d) or by Executive pursuant to
subsection 8.01(e), Executive shall use reasonable best efforts to obtain
other comparable employment as promptly after such termination as is
possible. Notwithstanding the provisions of subsection 8.02(a), if
Executive subsequently obtains other full-time employment, the amount of
the compensation he receives from such other employment from and after the
date which is twelve (12) months after the date of termination of
employment shall be offset against the Company's obligations under this
section 8.02.
(c) If Executive voluntarily leaves the employment of the
Company other than in accordance with subsection 8.01(e), or his employment
is terminated pursuant to subsection 8.01(a), 8.01 (b) or 8.01(c), his
right to base salary and benefits shall immediately terminate, except as
may otherwise be required by applicable law.
(d) If Executive's employment by the Company terminates within six
(6)
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months of the end of any fiscal year of the Company, Executive shall also
be entitled to receive a pro rata portion (based on the number of days of
employment during that fiscal year) of any bonus payment that would have
been payable to him for that fiscal year pursuant to section 4.02 if he had
been in the employ of the Company for the full fiscal year. No bonus will
be payable to Executive with respect to any fiscal year in which he was
employed by the Company for less than six (6) months or with respect to any
fiscal year after the fiscal year in which his employment terminated.
8.03 "Disability" Defined. The Board of Directors may determine that
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Executive has become disabled, for the purpose of this agreement, (a) if
Executive shall qualify, because of illness or incapacity, to begin receiving
disability income insurance payments under any disability income insurance
policy that the Company is then maintaining for the benefit of its executive-
level employees, or (b) if the Company is not then maintaining disability income
insurance for its executive-level employees, if Executive is unable, because of
illness or incapacity, to render normal employment services pursuant to this
agreement with reasonable accommodations for a period of ninety (90) days out of
any consecutive 180 day period.
8.04 Surrender of Records and Property. Upon termination of his
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employment with the Company, Executive shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports data, tables, calculations or copies thereof, which are the
property of the Company or which relate in any way to the business, products,
practices or techniques of the Company, and all other property, trade secrets
and confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
8.05 Definitions. As used in this agreement, the following terms
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shall have the meanings set forth below:
(a) "Cause" shall mean:
(i) Executive has breached the provisions of section 5 or 7 of
this agreement in any material respect, or
(ii) Executive has engaged in willful and material misconduct,
including willful and material failure to perform his
duties as an officer or employee of the Company or its
affiliates or excessive absenteeism unrelated to illness
or vacation, or
(iii) Executive has committed fraud, misappropriation or
embezzlement in connection with the Company's or its
affiliates' business, or
(iv) Executive has been convicted or has pleaded guilty or nolo
contendere to criminal misconduct constituting a gross
misdemeanor or a felony, or (v) Executive's use of
narcotics, liquor or illicit drug has had a detrimental
effect on the performance of his employment
responsibilities.
(b) A "Change of Control" shall mean the occurrence of any of the
following events:
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(i) a change of control of the Company of a nature required to
be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended ("Exchange Act"); or
(ii) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of
the Company representing more than 50% of the combined
voting power of the Company's then outstanding securities;
or
(iii) the sale, lease, exchange or other transfer, directly or
indirectly, of all or substantially all of the assets of
the Company, in one transaction or in a series of related
transactions; or
(iv) a merger or consolidation to which the Company is a party
if the shareholders of the Company immediately prior to
the effective date of such merger or consolidation have
"beneficial ownership" (as defined in Rule 13d-3
promulgated under the Exchange Act) immediately following
the effective date of such merger or consolidation of
securities of the surviving company representing fifty
percent (50%) or more of the combined voting power of the
surviving corporation's then outstanding securities,
9. Miscellaneous.
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9.01 Governing Law. This agreement is made under and shall be
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governed by and construed in accordance with the laws of the state of Minnesota.
9.02 Prior Agreements. This agreement contains the entire agreement
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of the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this agreement which are not set forth herein.
9.03 Withholding Taxes. The Company may withhold from any benefits
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payable under this agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
9.04 Amendments. No amendment or modification of this agreement
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shall be deemed effective unless made in writing and signed by the parties
hereto.
9.05 No Waiver. No term or condition of this agreement shall be
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deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
9.06 Severability. To the extent any provision of this agreement
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shall be invalid or unenforceable, it shall be considered deleted from this
agreement and the remainder of such provision and of this agreement shall be
unaffected and shall continue in full force and effect. In furtherance and
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not in limitation of the foregoing, should the duration or geographical extent
of, or business activities covered by, any provision of this agreement be in
excess of that which is valid and enforceable under applicable law, then such
provision shall be construed to cover only that duration, extent or activities
which may validly and enforceably be covered. Executive acknowledges the
uncertainty of the law in this respect and expressly stipulates that this
agreement be given the construction which renders its provisions valid and
enforceable to the maximum extent (not exceeding its express terms) possible
under applicable law.
9.07 Injunctive Relief. Executive agrees that it would be difficult
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to compensate the, Company fully for damages for any violation of the provisions
of this agreement, including without limitation the provisions of sections 5, 7
and 9.05. Accordingly, Executive specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this agreement and that such relief may be granted without the necessity of
proving actual damages. This provision with respect to injunctive relief shall
not, however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
IN WITNESS WHEREOF, Executive and the Company have executed this agreement
as of the date set forth in the first paragraph.
VERDANT BRANDS, INC.
By /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Chairman
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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