Exhibit 10.1
EMPLOYMENT AGREEMENT made as of the 21st day of February, 2005 by and
between XXXXXXX FARMS, INC., a Delaware corporation having offices at 000 Xxxxx
Xxxx, X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the
"Company"), and XXX XXXXXXXXXX, residing at X0000 Xxxxxx Xxxx XX, Xxxxxx, XX
00000 (hereinafter referred to as "Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to employ Employee, and Employee is willing
to accept such employment, all on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
set forth, the parties hereto agree as follows:
1. Employment
The Company hereby employs Employee, and Employee hereby accepts
employment with the Company, as Executive Vice President and Chief Financial
Officer, on the terms and conditions herein set forth.
2. Term of Agreement
Unless terminated sooner pursuant to the express provisions hereof, the
term of employment hereunder shall commence on the date hereof (the
"Commencement Date"), shall continue through February 28, 2010 (the "Employment
Period").
3. Duties
During the Employment Period, Employee shall perform such functions as are
normally carried out by the Chief Financial Officer of a business of the type in
which the Company is engaged, and such other functions as the Chief Executive
Officer of the Company ("CEO") and the Board of Directors of the Company (the
"Board") shall from time to time reasonably determine. Employee shall devote his
energies and abilities exclusively to the Company's business pursuant to, and in
accordance with, reasonable business policies and procedures, as fixed from time
to time by the CEO and the Board. Employee covenants and agrees that he will
faithfully adhere to and fulfill such policies as are established from time to
time by the CEO and the Board of Directors. Employee shall not be assigned, by
the CEO or the Board of Directors, responsibilities, in any material manner,
inconsistent with his position as Chief Financial Officer.
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4. Compensation
4.1 During the Employment Period, Employee's base salary shall be
not less than $150,000 per annum, payable weekly or, in the event the Company
changes its current payroll period, in accordance with the Company's changed
payroll procedures.
4.2 During the Employment Period, in addition to Employee's base
salary, Employee may be entitled to annual performance based bonuses based upon
criteria that may be adopted by the Company after consultation with the Employee
and consideration thereof by the Board.
4.3 During the Employment Period, the Company will provide Employee
with a non-accountable automobile allowance of $600.00 per month.
4.4 During the Employment Period, the Company will provide Employee
with family medical coverage pursuant to the Company's plan for its employees.
4.5 Employee shall also be eligible, to the extent he qualifies, to
participate in such fringe benefit plans (including retirement, pension, life or
other similar employee benefit plans), if any, which the Company may from time
to time make available to its employees, provided that the Company shall have
the right from time to time to modify, terminate or replace any and all of such
plans. The Company shall pay for a term life insurance policy equal to 2 times
the employee's base salary.
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4.6 The Company shall reimburse Employee for all reasonable business
expenses incurred by Employee in connection with the performance of his duties
hereunder, provided Employee submits supporting vouchers for such expenses.
4.7 Employee shall be entitled to a four (4) week paid vacation each
year during the Employment Period, to be taken at such time as is consistent
with the needs of the Company and the convenience of Employee.
4.8 Pending the Employee's relocation of his family to Vermont
(which relocation shall take place within six (6) months of the Commencement
Date, the Company shall rent an apartment in Vermont for use by the Employee,
which apartment shall be reasonably acceptable to the Employee and the Company,
and the Company shall reimburse the Employee reasonable travel expense to
commute home during the relocation period.
4.9 The Company agrees to pay directly for or reimburse the Employee
for all relocation expenses. For the purpose of this provision, relocation
expenses shall include actual moving, packing and unpacking expenses for all
household goods and automobiles, expenses incurred in the sale of the relocated
employees home, including sales commissions and normal and customary closing
costs, expenses incurred in the purchase of a new home in the new location,
including normal and customary closing costs.
5. Stock Options
Subject to affirmative action by the Board (which shall not be
unreasonably delayed), as of the Commencement Date, Employee shall be granted a
10 year Stock Option ("Option"), under the Company's 2002 Stock Option Plan, to
purchase 50,000 shares of the Company's common stock, par value $.001 per share,
at a price of $3.00 per share. The Option shall vest over a 4-year period to the
extent of 10,000 shares on the Commencement Date and 10,000 shares on each of
the next four anniversary dates of the Commencement Date; provided, however,
that in the event of a sale of all or substantially all of the assets or all of
the outstanding shares of capital stock of the Company or the merger or
consolidation of the Company with or into another entity involving a "change of
control" (i.e. an ownership change of more than 50%), in addition to that part
of the Option which already has vested, there shall vest, immediately prior to
the consummation of such event, that portion of the Option which is to vest
during the year in which such event is consummated.
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6. Termination
The Employment Period shall terminate upon the happening of any of
the following events:
6.1 Automatically and without notice upon the death of Employee.
6.2 Employee leaves the employ of the Company.
6.3 Upon written notice of termination from the Board of the
Company to Employee in the event that Employee becomes physically or mentally
disabled ("Disability") during the Employment Period such that (a) in the
Board's good faith judgment, Employee is permanently incapable of properly
performing the duties customarily performed by him hereunder, or (b) such
Disability lasts for a period of 60 consecutive days or 90 days in any 150 day
period and the Board elects to treat such Disability as being permanent in
nature;
6.4 Upon discharge of Employee, on written notice, by the Board
for cause. For purposes of this Agreement, "cause" shall mean the following: the
commission of a felony or crime involving moral turpitude or other act causing
material harm to the Corporation's standing and reputation, failure to carry
out, after reasonable written notice of such failure, the reasonable policies of
the Board as they may relate to Employee's duties hereunder (other than for
reasons beyond his control), persistent absenteeism, a material default or
breach of any of the covenants made by Employee in this Agreement, a breach of
Employee's duty of loyalty to the Company or any act of dishonesty or fraud with
respect to the Company, or the Employee's willful engaging in misconduct
injurious to the Company.
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6.5 In the event any one of the foregoing events referred to in
Sections 6.1 through 6.4 hereof shall occur, the Company shall be obligated to
pay to Employee the compensation due him under Section 4.1 hereof up to the date
of termination only and Employee shall not be entitled to receive any additional
compensation of any nature whatsoever.
6.6 In the event that Employee's employment with the Company is
terminated by the Board during the Employment Period for a reason other than as
is set forth above in Sections 6.1 through 6.4 hereof, the Company shall be
required to continue to pay Employee the salary provided for in Section 4.1
hereof for a period of twelve (12) months; provided, however, that the Employee
shall have affirmative obligation to seek comparable employment and mitigate the
Company's damages.
7. Non-Competition, Etc.
7.1 In view of the unique and valuable services that Employee has
rendered and is expected to render to the Company, and Employee's knowledge of
the business of the Company and proprietary information relating to the business
of the Company and similar knowledge regarding the Company that Employee has
obtained and is expected to obtain during the course of his employment with the
Company and in consideration of the compensation to be received by Employee
hereunder, Employee agrees that during the Employment Period and for a period of
twelve months immediately following the termination or expiration thereof,
Employee will not compete with, or, directly or indirectly, own, manage,
operate, control, loan money to, or participate in the ownership, operation or
control of, or be connected with as a director, partner, consultant, agent,
independent contractor or otherwise, or acquiesce in the use of his name in any
other business or organization which is in competition with the Company in any
geographical area in which the Company is then conducting business or any
geographical area in which, to the knowledge of Employee at the time of
cessation of employment, the Company plans to conduct business within twenty
four months from the date thereof.
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7.2 Employee will not, during the twenty-four months following
termination or expiration of the Employment Period, solicit or interfere with,
or endeavor to entice away from the Company, any of its employees or customers
without the written consent of the Company or unless such employee is Employee's
personal secretary.
7.3 Employee covenants and agrees that for so long as he is
employed by the Company or thereafter, he shall not in any manner, divulge or
disclose to any natural person or entity, other than to the Company or its
affiliates, any confidential information ("Confidential Information") including,
but not limited to, customer lists, trade secrets, suppliers, formulae, plans,
data, marketing or methods of operations of the Company or its affiliates, or
any other confidential information of the Company or its affiliates. Employee
shall return all tangible evidence of the Confidential Information to the
Company prior to or at the termination or expiration of his employment by the
Company. Notwithstanding the foregoing, Confidential Information shall not
include any information which (i) at the time it is first learned by Employee is
in the public domain, (ii) after disclosure to Employee, enters the public
domain without fault of the Employee or (iii) is known to Employee prior to the
Commencement Date.
7.4 Since a breach of the provisions of this Section 7 could not
adequately be compensated by money damages and will cause irreparable injury to
the Company, the Company shall be entitled, in addition to any other right or
remedy available to it, to an injunction or restraining order restraining such
breach or a threatened breach, and no bond or other security shall be required
in connection therewith, and Employee hereby consents to the issuance of any
such injunction or restraining order. Employee agrees that the provisions of
this Section 7 are reasonable and necessary to protect the Company and its
business. It is the desire and intent of the parties that the provisions of this
Section 7 shall be enforced to the fullest extent permitted under the public
policies and laws applied in each jurisdiction in which enforcement is sought.
If any restriction contained in this Section 7 shall be deemed to be invalid,
illegal or unenforceable by reason of the extent, duration or geographical scope
thereof, or otherwise, then the court making such determination shall have the
right to reduce such extent, duration, geographical scope or other provision
hereof and in its reduced form such restriction shall then be enforceable in the
manner contemplated hereby.
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7.5 No provision of this Agreement shall be deemed to preclude
Employee from serving as a director on the board of companies not in competition
with the Company or of charitable organizations, provided, that any such
directorship or consulting activities do not reduce Employee's ability to attend
to his duties on behalf of the Company.
8. Entire Agreement
The provisions hereof and the agreements referred to herein
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede any prior oral understanding, and no modification,
supplement or discharge hereof shall be effective unless in writing and executed
on behalf of the Company and Employee.
9. Assignability
This Agreement, and its rights and obligations may not be assigned
by Employee. The Company may assign any of its rights and obligations hereunder
to a successor or surviving corporation resulting from a merger or consolidation
of the Company, the sale by the Company of all or substantially all of its
assets or other similar corporate reorganization, upon condition that the
assignee shall assume, either expressly or by operation of law, all of the
Company's obligations hereunder.
10. Waiver
No waiver by either party of any condition, term or provision of
this Agreement shall be deemed to be a waiver of any prior or succeeding breach
of the same or of any other condition, term or provision thereof.
11. Notices
All notices required or permitted to be given by either party
hereunder shall be in writing and mailed by registered mail, return receipt
requested, to the other party at the address set forth above or such different
address as may be given by notice as provided for herein. Any notice mailed as
provided above shall be deemed given seven (7) days after the date of mailing or
on the date of receipt, whichever is sooner.
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12. Counterparts This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
13. Construction This Agreement shall be construed in accordance with the
laws of the State of Vermont.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
/s/ Xxx Xxxxxxxxxx
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DON XXXXXXXXXX
XXXXXXX FARMS, INC.
By:/s/ Xxx Xxxxxxxxxxx
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Authorized Signatory
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