Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED AGREEMENT (the "Agreement") is made this 13th day
of August, 2001, between Xxxxxxx X. Xxxxx ("Employee") and Lante Corporation and
any existing or future assigns or subsidiaries owned or controlled, directly or
indirectly by Lante and for whom Employee works ("Lante").
RECITALS
WHEREAS, Employee and Lante previously entered into the employment
agreement listed on the attached Annex I (the "Prior Employment Agreement") and
Employee has received one or more option grants as set forth in the attached
Annex I (together with any option grants received by Employee from Lante after
the date hereof, the "Option Grants").
WHEREAS, in consideration of Employee's employment or continued employment
by Lante, Employee's wages or salary and other employee benefits in compensation
of Employee's services, Employee and Lante wish to amend and restate the Prior
Employment Agreement in its entirety and amend each of the option agreements
relating to the Option Grants as set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lante and Employee agree as follows:
1. Employment. Employee agrees to use his best efforts and abilities to
promote the interests of Lante. Lante hereby agrees to employ Employee as
further defined in this Agreement. Except as provided in this Agreement, Lante
agrees to pay Employee's salary, at the rate agreed to from time to time, and to
confer upon Employee Lante's standard health insurance, paid time off (vacation,
sick and personal time), and retirement plan benefits, all as governed by its
"Employee Handbook" and other plan documents, as the same may be amended by
Lante from time to time.
2. Inventions.
(a) As used herein, "Inventions" means discoveries, improvements and
ideas (whether or not shown or described in writing or reduced to practice) and
works of authorship, whether or not patentable or copyrightable, (i) which
relate directly to the business of Lante, (ii) which relate to Lante's actual or
demonstrably anticipated research or development, (iii) which result from any
work performed by Employee for Lante, (iv) for which equipment, supplies,
facility or trade secret information of Lante is used, or (v) which is developed
on any Lante time. This section does not apply to any invention developed by
Employee prior to Employee's employment by Lante, provided that such invention
is listed and described in an exhibit attached to and made part of this
Agreement.
(b) With respect to Inventions made, authored or conceived by
Employee, either solely or jointly with others, during Employee's employment,
whether or not during normal working hours and whether or not at Lante's
premises, Employee acknowledges and agrees that all such works are "works made
for hire" and, consequently, that the Company owns all copyright and other
rights thereto. Employee further agrees that it will (i) keep accurate,
complete and timely records of such Inventions, which records shall be Lante's
property and be retained on Lante's premises; (ii) promptly and fully
disclose and describe such Inventions in writing to Lante; (iii) assign, and
does hereby assign, to Lante all of Employee's rights to such Inventions and to
patents, copyrights, and applications therefore with respect to such Inventions;
and (iv) acknowledge and deliver promptly to Lante (without charge to Lante but
at the expense of Lante) such written instruments and do such other acts as may
be necessary in the opinion of Lante to obtain and preserve such property rights
and to vest the entire right and title thereto in Lante.
(c) Employee will cooperate with Lante in the execution of any
documents which effect the assignment of Inventions or rights thereto which may
be required by a Lante clients or other third party, provided that such
requirement is no broader than the requirements of Section 2(b) above.
(d) Pursuant to the provisions of the Illinois Employee Patent Act,
765 ILCS 1060/2, Employee acknowledges receipt of notice that this assignment
does not apply to an invention for which no equipment, supplies, facility, or
trade secret of the Company was used and which was developed entirely on
Employee's own time, unless (a) the invention relates (i) to the business of the
Company, or (ii) to the Company's actual or demonstrably anticipated research or
development, or (b) the invention results from any work performed by Employee
for the Company.
3. Confidential Information.
(a) During the term of Employee's employment by Lante and any time
thereafter, except in the course of performing Employee's employment duties for
Lante, Employee will not use, disclose, reveal or report any Confidential
Information of Lante, of Lante's past or current clients, or of other parties
which have disclosed confidential or proprietary information to Lante. As used
herein, "Confidential Information" means information not generally known that is
proprietary to Lante, its clients or other parties, including but not limited to
information about any clients, prospective clients, sales proposals, employees,
processes, operations, products, services, organization, research, development,
accounting, marketing, applications, selling, servicing, finance, business
systems, computer systems, software systems and techniques. All information
disclosed to Employee, or to which Employee obtains access, whether originated
by Employee or by others, which Employee has reasonable basis to believe to be
Confidential Information, or which is treated by Lante or its clients or other
parties as being Confidential Information, shall be presumed to be Confidential
Information.
(b) Employee will cooperate with Lante in the execution of any
personal confidentiality agreement which may be required by a Lante clients or
other third party, provided that such agreement is no broader in its provisions
to the requirements of Section 3(a) above.
4. Nonsolicitation. During the Nonsolicitation Period (defined below)
Employee shall not, without Lante's written consent, directly nor indirectly, by
or for himself or as the agent of another or through others as Employee's agents
(i) solicit or accept any business from any client for whom Lante has performed
any services or issued any proposals in the two (2) year period prior to such
solicitation or acceptance, (ii) request, induce or advise any such client to
withdraw, curtail or cancel its business with Lante or (iii) solicit for
employment, employ, or engage as a consultant any person who had been an
employee of Lante at any time within the six (6) months prior to such
solicitation or engagement.
The "Nonsolicitation Period" immediately follows Employee's termination of
employment, and is based upon the position held by the Employee immediately
prior to such termination:
. For Vice Presidents, Managing Directors, Directors, and Principals the
period is two (2) years following termination of employment;
. For Managers, including Architects, the period is one (1) years
following termination
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of employment;
. For all other positions the period is six (6) months following
termination of employment.
5. Return of Lante Property. Upon termination of employment, Employee
shall return to Lante all copies of any Confidential Information (whether in
paper, electronic or any other form) as well as all hardware, software, books,
documentation, files, keys, keycards, company credit cards, records, lists and
any other information or property owned by Lante within Employee's possession or
control, including all copies thereof.
6. Injunctive Relief. In the event of a breach or threatened breach of
Sections 2, 3, 4 or 5 by Employee, Lante shall be entitled, without posting of a
bond, to an injunction restraining such breach, an accounting and repayment of
profits, compensation, commission, remuneration or other benefits that Employee,
directly or indirectly, may realize as a result of such violation and to
reimbursement of any attorneys' fees and costs incurred by Lante as a result of
such breach. Nothing herein shall be construed as prohibiting Lante from
pursuing any other remedy available to it for such breach.
7. Term.
(a) Employment under this Agreement may be terminable by either Lante
or Employee without cause with a minimum of two (2) weeks prior notice, or may
be terminable by Lante for cause without prior notice. Upon notice of
termination other than by Lante for cause, Lante may (i) require Employee to
continue to perform his or her duties hereunder on Lante's behalf during such
notice period, (ii) limit or impose reasonable restrictions on Employee's
activities during such notice period as it deems necessary, or (iii) choose any
date within the notice period as the effective date of Employee's termination at
any time during such notice period. If, at any time during the notice period,
Lante chooses a date as the effective date of such termination, Lante will not
be obligated to pay Employee's compensation for any period beyond such
resignation acceptance date except as provided in the next sentence. In the
event of termination by Lante without cause, following the effective date of
termination, Employee shall be entitled to receive: (i) six months of Employee's
base salary (determined as of the time immediately following Employee's most
recent salary increase), (ii) one-half of Employee's then current target cash
bonus for that year, (iii) 6 months continuation of company paid medical and
dental insurance benefits at existing coverage levels for Employee and his
family (if applicable) and (iv) the loan forgiveness referenced in the Executive
MBA Sponsorship Agreement between Lante and the employee dated December 12,
2000, ("the MBA Agreement"). Any amounts payable under clauses (i) or (ii) of
the prior sentence will be payable within 14 days following the effective date
of termination. For purposes of this Agreement, cause means criminal activity,
dishonesty, breach of the Employee's fiduciary duties to Lante, breach of this
Agreement or failure to perform to Lante's standards. Notwithstanding anything
to the contrary contained herein, the aforementioned severance benefits may be
conditioned on execution of a release agreement acceptable to Lante in its sole
discretion, and repayment of any amounts owing to Lante by employee.
(b) Sections 2 through 6 of this Agreement shall survive termination
of employment.
8. Acceleration of Option Vesting. Notwithstanding anything to the
contrary contained in any option agreement or option plan governing the Option
Grants, in the event of a Change in Control (as such term is defined in the
Lante Corporation 2001 Stock Incentive Plan as in effect on the date hereof),
the time periods relating to the exercise or vesting of the Option Grants, shall
automatically be accelerated by twelve months. Except as expressly modified in
this Agreement, the remaining terms of such option
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agreements and the plans governing those options will remain in full force and
effect and will govern the exercisability of such options.
9. General Provisions. This Agreement may be assigned by Lante and shall
inure to the benefit of Lante's successors and assigns. If any term, provision,
covenant or agreement hereof is held by a court to be invalid, void or
unenforceable, the remainder of the terms hereof shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois. This Agreement contains the entire contract between the
parties. All prior agreements between the parties regarding such matters or
Employee's employment (including without limitation the Prior Employment
Agreement but not including the MBA Agreement) are superseded hereby and
terminated. This Agreement may be executed in one or more counterparts.
In Witness Whereof, the undersigned have executed this Agreement as of
August 13, 2001.
EMPLOYEE
/s/ Xxxxxxx X. Xxxxx
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LANTE CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Printed Name: Xxxxx Xxxxxxx
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Title: Vice President, Human Resources
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ANNEX I
Prior Employment Agreement: Employment Agreement between Employee and Lante,
dated November 22, 1999.
Option Grants:
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Grant Date Exercise Price Original Number of Vesting Schedule
Shares
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11/22/99 $ 3.420 60,000 25% vested 1 year after
issuance, additional
2.08333% vested each
month thereafter
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08/11/00 $10.313 4,500 25% vested 1 year after
issuance, additional
2.08333% vested each
month thereafter
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01/01/01 $ 1.375 15,000 2.777% monthly after
issuance
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04/03/01 $ 1.313 50,000 25% vested 1 year after
issuance, additional
2.08333% vested each
month thereafter
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07/01/01 $ 0.950 19,000 8.333% monthly after
issuance
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07/09/01 $ 0.880 25,000 25% vested 1 year after
issuance, additional
2.08333% vested each
month thereafter
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