EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.3
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into as of October 1, 2016 (“Effective Date”),
by and between WEED,
Inc., a Nevada corporation, (the “Company”),
and Xxxx Xxxxx (the
“Executive”). This is the 2nd
Agreement.
WITNESSETH:
WHEREAS, Executive
is currently employed with the Company and the Company desires to
continue retaining the services of Executive, and Executive desires
to remain employed by the Company, on the terms and conditions of
this Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Company and
Executive, intending to be legally bound, hereby agree as
follows:
1.
Employment. The Company
agrees to employ Senior as (i) Vice President and (ii) Social Media
Officer of the Company, and Executive accepts such employment and
agrees to perform full-time executive employment services for the
Company, subject always to resolutions of the Board of Directors of
the Company (the “Board”), for the period and upon the
other terms and conditions set forth in this
Agreement.
2.
Term. The term of
Executive’s employment hereunder (the “Term”)
shall commence on the Effective Date, and shall continue until the
earlier of (i) two (2) years after the Effective Date or (ii) the
date this Agreement is terminated upon written notice by either
party as set forth in Section 5 (Termination). Sections
6 (Compensation upon the Termination of Executive’s
Employment) and 7 (Change of Control) of this Agreement shall
govern the amount of any compensation to be paid to Executive upon
termination of this Agreement and his employment.
3.
Position and
Duties.
3.1. Service
with the Company. During the Term of this Agreement,
Executive agrees to perform such executive employment duties as the
Board shall reasonably assign to him from time to time. In
addition, at all times during the period of Executive’s
employment by the Company, Executive shall serve on the
Company’s Board as Chairman of the Board without any
additional compensation.
3.2. No
Conflicting Duties. 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, or enter
into any contract to do so, for any other corporation, firm, entity
or person that are inconsistent with the provisions of this
Agreement or Executive’s fiduciary obligations to the
Company.
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4.
Compensation and
Benefits.
4.1. Bonus
at Signing. Upon the signing of this Agreement, the Company
will pay to executive one (1) million shares of the Company’s
Common Stock. These shares will be restricted, control person
securities.
4.2. Base
Salary. As compensation for all services to be
rendered by Executive under this Agreement, the Company shall pay
to Executive an annual salary of One (1) Million shares of the
Company’s Common Stock (the “Base Salary”).
The Base Salary is payable on January 15 of each year of the Term.
The Base Salary shall be subject to review and change at the
discretion of the Board (or its Compensation Committee), however,
the Base Salary may not be decreased without the written consent of
the Executive.
4.3. Bonuses.
4.3.1
The Company shall pay Executive a bonus of One Hundred (100,000)
Thousand shares of the Company’s Preferred Series B Stock
upon the Company regaining fully reporting status and completion of
independent valuation on Preferred shares. The Company shall make
this payment to Executive within thirty (30) days after the
Company’s status is restored to fully reporting and
completion of independent valuation on Preferred
shares.
4.3.2
Executive may be eligible for additional bonuses as determined by
the Board (or its Compensation Committee, if applicable) in its
discretion.
4.4. Participation
in Benefit Plans. Executive shall be included to the
extent eligible thereunder in any and all plans of the Company
providing general benefits for the Company’s executive
employees, including, without limitation, medical, dental, vision,
disability, life insurance, 401(k) plan, sick days, vacation, and
holidays. Executive’s participation in any such plan or
program shall be subject to the provisions, rules, and regulations
applicable thereto. In addition, during the Term of this
Agreement, Executive shall be eligible to participate in all
non-qualified deferred compensation and similar compensation, bonus
and stock plans offered, sponsored or established by Company on
substantially the same or a more favorable basis as any other
employee of Company. The Company will pay directly or
reimburse Executive for supplemental disability coverage, in an
amount approved by the Board (or its Compensation Committee, if
applicable). The benefit plans described in this Section 4.4 are
collectively referred to in this Agreement as “Benefit
Plans.”
4.5. Business
Expenses. In accordance with the Company’s
policies established from time to time, the Company will pay or
reimburse Executive for all 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
supporting documentation. In addition, the Company will
reimburse or pay directly for Executive’s personal executive
development expenses, in a maximum amount to be approved by the
Board (or its Compensation Committee, if applicable).
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5.
Termination.
5.1. Disability.
At the Company’s election, Executive’s employment shall
terminate upon Executive’s becoming totally or permanently
disabled for a period of six (6) consecutive months. For
purposes of this Agreement, the term “totally or permanently
disabled” or “total or permanent disability”
means Executive’s inability on account of sickness or
accident, whether or not job-related, to engage in regularly or to
perform adequately his assigned duties under this Agreement.
The Company may only make a determination that Executive is totally
or permanently disabled or has a total or permanent disability upon
receipt of such a determination from Executive’s regular,
treating physician. Executive, or Executive’s authorized
personal representative, will instruct Executive’s regular,
treating physician to furnish to the Company such physician’s
determination of whether Executive is totally or permanently
disabled or has a total or permanent disability upon
Executive’s, or Executive’s authorized personal
representative’s, receipt of a written request from the
Company, signed by any officer, and Executive hereby (a) waives any
privilege of confidential treatment by such physician in that
connection, and (b) agrees to submit to such physical and
psychiatric examinations and tests as shall be reasonably necessary
or appropriate to enable the Company to determine that Executive is
totally or permanently disabled or has a total or permanent
disability.
5.2. Death
of Executive. Executive’s employment shall
terminate immediately upon the death of Executive.
5.3. Termination
for Cause. The Company may terminate Executive’s
employment at any time for “Cause” (as hereinafter
defined) immediately upon written notice to Executive. As
used herein, the term “Cause” shall mean that Executive
shall have (i) committed any act of fraud, embezzlement,
dishonesty or any other willful misconduct that is demonstrably and
materially injurious to the Company, or (ii) in the reasonable
judgment of the Board, violated any material written Company policy
or rules of the Company, unless cured by Executive within 30
days following written notice thereof to Executive, or
(iii) refused to follow the reasonable written directions
given by the Board or its designee or breached any covenant or
obligation under this Agreement or other agreement with the
Company, unless cured by Executive within thirty (30) days
following written notice thereof to Executive. No act or failure to
act by Executive shall be considered “willful” unless
committed without good faith and without a reasonable belief that
the act or omission was in the Company’s best
interest.
5.4. Resignation.
Executive’s employment shall terminate on the earlier of the
date that is thirty (30) days following the written submission of
Executive’s resignation to the Company or the date such
resignation is accepted by the Company.
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5.5. Termination
for Good Reason. Executive may terminate his employment
under this Agreement at any time for “Good Reason” (as
hereinafter defined). As used herein, the term “Good
Reason” shall mean, without Executive’s written
consent: (a) a material reduction in Executive’s Base Salary;
(b) a material reduction in Executive’s authority, duties or
responsibilities, including without limitation, removing Executive
as Chairperson of the Board, President or Chief Technology Officer;
(c) relocation by the Company of Executive’s work site to a
facility or location more than 25 miles from the Executive’s
principal work site for the Company; (d) imposition of a
requirement that Executive report to a Company officer or employee
rather than directly to the Board; or (e) a material breach by the
Company of any of its obligations under this Agreement or any other
written agreement or covenant with Executive. A condition will not
be considered “Good Reason” unless Executive gives the
Company written notice of the condition within ninety (90) days
after the condition comes into existence and the Company fails to
remedy the condition within thirty (30) days after receiving
Executive’s written notice. To resign for Good Reason,
Executive must resign within two (2) years after one of the
foregoing conditions has come into existence without
Executive’s consent and has not been remedied by the Company
within its 30-day remedy deadline.
5.6. Surrender
of Records and Property. Subject to Section 8
(License), upon termination of his employment with the Company,
Executive shall deliver promptly to the Company all credit cards,
computer equipment, cellular telephone, records, manuals, books,
blank forms, documents, letters, memoranda, notes, notebooks,
reports, data, tables, calculations or copies thereof, that are the
property of the Company and that relate in any way to the business,
strategies, products, practices, processes, policies or techniques
of the Company, and all other property, trade secrets and
confidential information of the Company, including, but not limited
to, all documents that in whole or in part contain any trade
secrets or confidential information of the Company that in any of
these cases are in his possession or under his control, and
Executive shall also remove all such information from any personal
computers that he owns or controls.
6.
Compensation upon the Termination of
Executive’s Employment.
6.1. In
the event that Executive’s employment is terminated pursuant
to Section 5.3 (Termination for Cause) or 5.4 (Resignation)
then Executive shall be entitled to receive a pro rata amount of
Executive’s then current Base Salary through the date his
employment is terminated, but no other compensation of any kind or
amount. Such pro rata amount shall be determined by the ratio of
the number of days of the calendar year that have passed as of the
termination date to 365. Any shares awarded in excess of such
amount shall be redeemed by the Company for $1.
6.2. In
the event Executive’s employment is terminated pursuant to
Section 5.2 (Death), Executive’s beneficiary or a
beneficiary designated by Executive in writing to the Company, or
in the absence of such beneficiary, Executive’s estate, shall
be entitled to receive Executive’s then current Base Salary
through the end of the month in which his death occurs, but no
other compensation of any kind or amount.
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6.3. Subject
to Section 6.4 (Conditions), in the event Executive’s
employment is terminated by the Executive pursuant to Section 5.5
(Termination for Good Reason) or by the Company pursuant to Section
5.1 (Disability), then Executive shall be entitled to receive
Executive’s then current Base Salary through the date his
employment is terminated, and the Company shall pay to Executive,
as a severance allowance, the following amounts (together the
“Severance Payments”), and shall amend any stock option
award agreement or other equity award agreement (each an
“Option Agreement”) between the Company and Executive
as follows, but shall pay no other compensation or benefits of any
kind.
6.3.1. Company
shall pay to Executive Executive’s three times then current
monthly Base Salary for a period of twelve (24) months beginning
upon Executive’s satisfaction of the Conditions (the
“Severance Period”), paid on the Company’s
regular paydays throughout the Severance Period.
6.3.2. Company
shall pay for Executive’s benefit, up to $75,000.00 for
outplacement services for Executive with an outplacement firm
selected by Executive.
6.3.3. Company
shall pay for Executive’s benefit, if Executive elects to
continue Executive’s health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) following the termination of
Executive’s employment, Executive’s monthly premium
(including any premiums related to Executive’s eligible
dependents) under COBRA until the earliest of (a) the close of the
Severance Period, (b) the expiration of Executive’s
continuation of coverage under COBRA, or (c) the date when
Executive becomes eligible for substantially equivalent health
insurance coverage in connection with new employment.
6.3.4. Company
shall pay to Executive upon the earlier of (a) the date that is
sixty (60) days after termination of Executive’s employment
and (b) Executive’s satisfaction of the Conditions (defined
below), any amounts payable under any Company bonus plans in which
Executive is eligible to participate as of the date of the
termination of his employment, after pro rating any applicable
targets, quotas, and bonus payments as of the termination date,
regardless when such bonus may be due under the bonus
plan.
6.3.5. Company
shall amend, immediately prior to the effectiveness of the
termination of Executive’s employment, each Option Agreement
(a) to make 100% of the then unvested shares subject to each Option
Agreement fully vested and fully exercisable, (b) to terminate any
rights the Company may have to repurchase unvested shares and (c)
to permit Executive to exercise the options provided by each Option
Agreement for a period of ten (10) years following the termination
of Executive’s employment.
Notwithstanding
anything herein to the contrary, the Company shall begin COBRA
payments as soon as necessary for Executive to continue coverage,
even if Executive has yet to meet the Conditions (as defined
below); provided that this
obligation shall not extend more than sixty (60) days from the date
of termination of Executive’s employment.
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6.4. Conditions.
The Company’s obligation to pay the Severance Payments will
not apply unless (a) Executive has complied with Section 5.7
(Surrender of Records and Property), (b) Executive has resigned as
a member of the Company’s Board and the boards of directors
of any Company subsidiaries, if applicable, and (c) Executive has
executed the Company’s standard release agreement (the
“Release”) that includes (i) a full mutual release of
all claims by both parties and (ii) non-disbaragement of either
party by the other (collectively, clauses (a) through (c) of this
Section 6.4 are the “Conditions”). The Company will
deliver the Release (executed by the Company) to Executive within
ten (10) days of termination of Executive’s employment. The
Executive must satisfy the Conditions within sixty (60) days of
termination of Executive’s employment.
7.
Change of
Control.
7.1. Definition
of Change of Control. As used herein, a “Change
of Control” shall means: (a) the sale, transfer, or
other disposition of all or substantially all of the
Company’s assets, (b) any merger, consolidation or other
business combination transaction of the Company with or into
another corporation, entity or person, other than a transaction in
which the holders of at least a majority of the shares of voting
capital stock of the Company outstanding immediately prior to such
transaction continue to hold (either by such shares remaining
outstanding or by their being converted into shares of voting
capital stock of the surviving entity) a majority of the total
voting power represented by the shares of voting capital stock of
the Company (or the surviving entity) outstanding immediately after
such transaction, or (c) the direct or indirect acquisition
(including by way of a tender or exchange offer) by any person, or
persons acting as a group, of beneficial ownership or a right to
acquire beneficial ownership of shares representing a majority of
the voting power of the then outstanding shares of capital stock of
the Company. A transaction shall not constitute a Change of Control
if its sole purpose is to change the state of the Company’s
incorporation or to create a holding company that will be owned in
substantially the same proportions by the persons who held the
Company’s securities immediately before such
transaction.
7.2. Change
of Control Bonus. In the event of a Change of Control, the
Company shall, within thirty (30) days after occurrence of the
Change of Control, pay Executive a lump sum amount equal to the sum
of two hundred percent (200%) of Executive’s then current
annual Base Salary.
7.3. Vesting
Acceleration. In the event of a Change of Control, and
notwithstanding the provisions of any Option Agreement to the
contrary, immediately prior to such Change of Control, one hundred
percent (100%) of the then unvested shares subject to each Option
Agreement will fully vest and become fully exercisable, and any
Company rights of repurchase of unvested shares with respect
thereto will fully lapse, as of the closing date of the Change of
Control. The Company shall also amend each Option Agreement to
permit Executive to exercise the options provided by each Option
Agreement for a period of ten (10) years following the termination
of Executive’s employment.
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7.4. Benefit
Plans Following a Change of Control. In the event of a
Change of Control following which the Company (or the surviving
entity) continues to employ Executive and the Company (or the
surviving entity) offers benefit plans that are less favorable to
Executive and Executive’s eligible dependents than the
Benefit Plans Executive and Executive’s dependents had
immediately prior to the Change of Control, the Company (or the
surviving entity) will reimburse Executive for any expenses he
incurs to independently acquire additional coverage under a
third-party plan to cover such deficit in benefits for up to a one
(1) year period up to a maximum of $12,000.
7.5. Severance
Payments Following a Change of Control. In the event of a
Change of Control following which the Company (or the surviving
entity) continues to employ Executive, in the event
Executive’s employment is terminated by the Executive
pursuant to Section 5.5 (Termination for Good Reason), the Company
(or the surviving entity) shall pay the Severance Payments to
Executive in accordance with Section 6.3 above.
8.
Successors.
8.1. The
Company’s Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, merger,
acquisition, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets
shall assume the obligations of the Company under this Agreement
and agree expressly to perform the obligations of the Company under
this Agreement in the same manner and to the same extent as the
Company would be required to perform such obligations in the
absence of a succession.
8.2. Executive’s
Successors. The terms of this Agreement and all rights of
Executive hereunder shall inure to the benefit of, and be
enforceable by, Executive’s personal or legal
representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees.
9.
Other Provisions.
9.1. Code
Section 409A. For purposes of Section 409A Internal Revenue
Code, as amended (“Section 409A”), Executive hereby
elects to receive, and the Company hereby agrees to pay, each
amount payable under this Agreement at the times, and on the terms
and conditions, set forth herein. Notwithstanding the foregoing, if
Section 409A would impose any additional tax on payments
within the first six (6) months following Executive’s
Separation from Service (as defined in Section 409A), such
payments shall be delayed to the minimum extent necessary to avoid
such additional tax. Any delayed payments shall be paid in a
lump sum on the first day of the seventh (7th) month after
Executive’s Separation from Service.
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9.2. Governing
Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State
of Arizona without reference to conflicts of law provisions
thereof.
9.3. Prior
Agreements. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and
supersedes all prior agreements and understanding 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.
9.4. Withholding
Taxes and Right of Offset. The Company may withhold
from all payments and benefits under this Agreement all federal,
state, city, or other taxes as shall be required pursuant to any
law or governmental regulation or ruling. Executive agrees
that the Company may offset any payments owed to Executive pursuant
to this Agreement or otherwise against any amounts owed by
Executive to the Company.
9.5. No
Duty to Mitigate. Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement,
nor shall any such payment be reduced by any earnings that
Executive may receive from any other source.
9.6. Amendments.
No amendment or modification of this Agreement shall be deemed
effective unless made in writing signed by Executive and the
Company.
9.7. Headings.
All captions and section headings used in this Agreement are for
convenient reference only and do not form a part of this
Agreement.
9.8. No
Waiver. No term or condition of this Agreement shall
be 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.
9.9. Severability.
To the extent any provision of this Agreement 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.
9.10. Survivability.
Sections 6, 7, 8, and 9 of this Agreement shall survive the
termination of this Agreement and the termination of
Executive’s employment with the Company.
9.11. Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute
one and the same instrument.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth above.
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“Company”:
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WEED, Inc., a Nevada corporation
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By:
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Title:
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“Executive”:
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Xxxx Xxxxx, an individual
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