Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
September 5, 2001, by and between FRESH AMERICA CORP., a Texas corporation
("Company"), and Colon Xxxxxxxx an individual resident of the State of Arkansas
("Employee").
R E C I T A L S
WHEREAS, Company desires to obtain the services of Employee upon the terms
and conditions set forth herein; and
WHEREAS, Employee desires to be employed by Company upon the terms and
conditions set forth herein; and
WHEREAS, Company believes that the retention of Employee in employment with
Company is critical to the success of Company;
NOW, THEREFORE, for and in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Company and Employee hereby agree
as follows:
ARTICLE I.
Section 1.01. Employment. Company hereby agrees to employ Employee in the
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capacity of Executive Consultant and Employee agrees to be employed by Company
in such capacity, for a period and time commitment described below, unless
terminated earlier as provided in Article III.
Section 1.02. Term of Employment ("Term").
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Company shall employ Employee for one (1) year (the Term"), subject to
renewal for successive one-year periods thereafter for up to three (3) years.
Renewal shall be automatic unless if either party gives notice thirty (30) days
prior to the expiration of the Term.
Section 1.03. Duties. Employee shall be subject to the direction and
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supervision of Company and shall have those duties and responsibilities
consistent with the position in which he/she is employed. During the Term,
Employee agrees to perform the duties assigned to the best of Employee's ability
and to devote Employee's full professional working time, attention, and energies
to the transaction of Company's business so as to further its best interests.
During the Term, Employee shall not be employed or otherwise engaged in any
other business or enterprise without the written permission of Company. The
Company understands that the Employee is authorized to continue the business
relationships already in existence and any new consulting or part-time
employment arrangements as may arise. Employee shall comply with all existing
policies, standards, and regulations of Company and hereafter as agreed and
adopted by
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the Executive Committee. Employee agrees that, during the Term, Employee shall
refrain from making disparaging remarks to third parties about Company or any
affiliate of Company.
ARTICLE II.
Section 2.01. Compensation.
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(a) Salary. During the Term, as compensation for services rendered
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hereunder and in consideration of this Agreement, the Company shall pay
Employee a salary, in accordance with the Company's then-prevailing payroll
practices, at the annual rate of $150,000. Employee's base salary shall be
subject to review and modification from time to time by Employer but may
not be decreased during the term of this Agreement.
(b) Benefits. During the Term, as additional compensation, Employee
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shall be entitled to participate in and receive all benefits under any
welfare benefit plan or program (including, without limitation, medical,
dental, disability, group life, including accidental death and
dismemberment, and business travel insurance plans and programs), any
retirement savings plan or program (including, without limitation, 401(k)
and pension plans), and such other perquisites of office (including,
without limitation, paid vacation and holidays) as the Company may, from
time to time and in its sole discretion, make available generally to
similarly situated officers or managers of the Company provided however,
the current benefit level of the Employee will not be materially reduced.
Such participation shall be subject to the terms and conditions of such
plans or programs, including, but not limited to, such generally applicable
eligibility provisions as may be in effect from time to time.
(c) Expense Reimbursement. The Company shall reimburse Employee for
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all reasonable, ordinary, and necessary business expenses incurred in the
performance of Employee's duties hereunder in accordance with and subject
to the terms and conditions of the Company's then-prevailing expense
policy. As a condition precedent to obtaining such reimbursement, Employee
shall provide to the Company any and all statements, bills, or receipts
evidencing the expenses for which Employee seeks reimbursement, and such
other related information or materials as the Company may from time to time
reasonably require.
ARTICLE III.
Section 3.01. Termination. Unless Employee's employment is terminated
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pursuant to this Paragraph 3.01 (a) - (d), the Company shall continue to employ
Employee and Employee shall continue to serve the Company throughout the Term.
(a) Death. This Agreement shall terminate automatically upon
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Employee's death.
(b) Disability. This Agreement shall terminate upon Employee's
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"Disability", as defined below and the payment of benefits under the
Company's disability insurance program, if any, shall satisfy the Company's
obligations under the foregoing Paragraph 2.01. For purposes of this
Agreement, Employee shall be deemed to be under a
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Disability if Employee shall be unable, by virtue of illness or physical or
mental incapacity or disability (from any cause or causes whatsoever), to
perform Employee's essential job functions hereunder, with reasonable
accommodation, in substantially the manner and to the extent required
hereunder prior to the commencement of such disability, for a period
exceeding ninety (90) consecutive days. In light of the unique nature of
Employee's services, the undue burden on the Company that would result from
Employee's long term absence, the Company shall have the right to terminate
Employee's employment hereunder in the event Employee shall remain under a
Disability for a period exceeding six (6) months, such termination to occur
at the end of the six-month period during the continuance of such
disability.
(c) For Cause. The Company shall have the right to terminate
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Employee's employment and this Agreement for "Cause". For purposes of this
Agreement, Cause shall include: (i) material default or other material
breach by Employee of Employee's obligations hereunder; (ii) failure by
Employee to perform diligently Employee's duties hereunder; or (iii)
misconduct, dishonesty, insubordination, or other acts by Employee damaging
to the Company's relationships with its customers, suppliers, or employees,
including, without limitation: indictment or plea of guilty or no contest
to a felony or any crime involving moral turpitude, dishonesty, or theft;
and failure by Employee to comply (after being directed to do so) with
applicable laws or governmental regulations with respect to Company
operations.
(d) Voluntary Termination. In the event that Employee
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voluntarily terminates his/her employment for any reason, Employee shall
retain all rights under Article II Section 2.01 (c).
Section 3.02. Notice of Termination. Any purported termination of
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Employee's employment by Company or by Employee (other than termination due to
death) shall be communicated by written two weeks' Notice of Termination to the
other party that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated. In the event of termination of this
Agreement for any reason, the payments (if any) required to be provided to
Employee pursuant to this Paragraph 3.01 shall be in full and complete
satisfaction of any and all obligations owing to Employee pursuant to this
Agreement except for expense reimbursements or as otherwise specifically
detailed in the Agreement.
Section 3.03. Ownership and Return of Materials. All records, materials,
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lists, files, manuals, tapes, and all other written or recorded data and
information in whatever form ("Materials") that may be used by, or made
available to Employee during employment hereunder are and shall remain the sole
property of Company. Upon the voluntary or involuntary termination of
Employee's employment hereunder, Employee shall immediately return or cause to
be returned same to Company.
ARTICLE IV.
Section 4.01. Non-Competition, Non-Solicitation and Confidentiality.
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Employee expressly recognizes and agrees that Company has acquired a valuable
and extensive clientele
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for its produce business and that Company's business connections and clients
have been acquired at great expense and are of great value to Company. Employee
further recognizes and agrees that Employee will become familiar with and
possessed of the manner, method, secrets, and confidential and proprietary
information pertaining to Company's business methods and clients and that by
virtue of this Agreement, Employee will become personally acquainted with the
clients, business methods, and trade secrets of Company.
In recognition and in consideration of the foregoing, Employee expressly
covenants and agrees that during the term of this Agreement and continuing until
the Non-competition Termination Date (as hereinafter defined), Employee is
prohibited from competing, soliciting employees and customers, and divulging
confidential information as indicated below. Employee further agrees that the
provisions of Article IV shall survive the expiration or termination of this
Agreement for any reason.
(a) Non-Competition During Employment. While Employee is employed
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by the Company, Employee shall not, directly or indirectly, whether or not
for compensation, and whether or not as an employee, be engaged in or have
a financial interest (as defined below) in any other business, continue or
assume any other corporate affiliations, or pursue any other commercial
activities, duties, or pursuits which would in any way compete with the
Company or result in a conflict of interest for the Employee without the
prior written consent of the Company.
(i) Financial Interest Defined. For purposes of this Section
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4.01(a), Employee shall be deemed to be engaged in or to have a
Financial Interest in a business if Employee is an employee, officer,
director, consultant, independent contractor, proprietor, or partner
of any person, partnership, corporation, trust or other entity which
is engaged in such business, or if Employee directly or indirectly
performs services for such entity or if Employee or any member of
Employee's immediate family beneficially owns an equity interest, or
interest convertible into equity, in any such entity; provided,
however, that the foregoing shall not prohibit Employee or a member
of Employee's immediate family from owning, for the purpose of
passive investment, less than 2% of any class of securities of any
publicly held corporation.
(b) Non-Competition After Employment. Employee agrees that for a
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period of one (1) year after termination of Employee's employment, for
whatever reason, ("Non-Competition Termination Date"), Employee shall not,
directly or indirectly, whether or not for compensation, and whether or not
as an employee, be engaged in or have any Financial Interest in any
business competing with the business of the Company (or with any business
of any Affiliate for which the Employee performed services hereunder)
within any region or locality in which the Company or such Affiliate is
then doing business or marketing its products, as the business of the
Company or such Affiliates may then be constituted.
(c) Non-Solicitation of Employees. Employee agrees that during
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employment and for the period after employment up to and including the
Non-Competition Termination Date, Employee shall not directly or
indirectly, solicit for hire any person then employed by Company or
otherwise encourage any employee to leave
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the employ of Company, either on employee's own behalf or on behalf of
another person or entity.
(d) Non-Solicitation of Customers. Employee agrees that during
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employment and for the period after employment up to and including the Non-
Competition Termination Date, Employee will not in any way solicit business
from any customers of Company within any region or locality in which the
Company or such Affiliate is then doing business or marketing its products.
In this clause "business" means business of any kind in which Employee was
engaged during Employee's employment and "customers" means customers of
Company that Employee dealt with during Employee's employment and
prospective customers identified during Employee's employment with the
Company. Employee acknowledges and agrees that this non-solicitation
provision is reasonable in scope, is necessary to protect Company's
goodwill and legitimate business interests, is not harmful to the public
interest, and will not impose any undue hardship on Employee or affect
Employee's ability to earn a living or otherwise engage in any chosen
occupation and career.
(e) Confidential Information. Both during and after the Term,
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Employee shall not, directly or indirectly, divulge, publish, communicate,
or make available to any person, corporation, governmental agency, or other
entity (except in performing Employee's duties hereunder or pursuant to a
government issued subpoena), or use for Employee's own or any other person
or entity's purposes or benefit, any Company trade secret, confidential
business information, or other confidential Company information such as:
designs, specifications, techniques, methods, concepts, inventions,
developments, discoveries, improvements, or data of the Company which has
specifically been learned as a result of Employee's employment with the
Company and which is not generally known to the public (separately and
collectively, "Confidential Information") (including, but not limited to,
Confidential Information relating to research, product development or
design, manufacturing or manufacturing processes, maintenance or repair
processes, purchasing, product or materials costs, sales or sales
strategies or prospects, pricing or pricing strategies, advertising or
promotional programs, product information, or mailing or customer lists,
finances (including prices, costs, and revenues), and other business
arrangements, plans, procedures and strategies which Employee would not
have otherwise learned but for Employee's employment with the Company), and
shall use Employee's best efforts to prevent the publication or disclosure
by any other person or entity of any such Confidential Information While
Employee is employed by the Company, all documents and Confidential
Information compiled, received, held, or used by Employee in connection
with the business of the Company shall remain the Company's property, and
shall be delivered by Employee to the Company upon the termination of
Employee's employment, for whatever reason, or at any earlier time
requested by the Company.
ARTICLE V.
Section 5.01. Arbitration.
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(a) Binding Arbitration. Any dispute or controversy between the
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Company and Employee relating to this Agreement (except any dispute
relating to Article IV
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above) or relating to or arising out of Employee's employment with the
Company, shall be settled by binding arbitration before a single arbitrator
in Dallas, Texas, pursuant to the Employment Dispute Resolution Rules of
the American Arbitration Association. Each party shall bear its own costs,
expenses and fees, including, without limitation, attorneys' fees and
experts' fees with respect to any such arbitration. Judgment upon any
resulting arbitration award may be entered in a court of competent
jurisdiction the Northern District of Texas.
(b) Judicial Proceedings. The Company shall not be required to
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arbitrate any dispute arising between it and Employee relating to the
foregoing Article IV, but shall have the right to institute judicial
proceedings in a court of competent jurisdiction in the Northern District
of Texas. Employee hereby consents to, and waives any objection to, the
personal jurisdiction and venue of the aforesaid courts, and waives any
claim that the aforesaid courts constitute an inconvenient forum. If such
judicial proceedings are instituted, the parties agree that such
proceedings shall not be stayed pending the outcome of any arbitration
proceedings hereunder.
ARTICLE VI.
Section 6.01. Assignment. This Agreement is binding on and for the
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benefit of the Company and Employee and their respective successors, heirs,
executors, administrators, and other legal representatives. Neither this
Agreement nor any right or obligation hereunder may be sold, transferred,
assigned, or pledged by the Company (except to an Affiliate) or by Employee
without the prior written consent of the other. However, nothing in this
Agreement shall preclude the Company from consolidating or merging into or with,
or transferring all or substantially all of its assets to, another entity which
assumes this Agreement and all obligations and undertakings of the Company
hereunder.
Section 6.02. No Conflict. Employee represents and warrants that
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Employee is not subject to any agreement, order, judgment or decree of any kind
which would prevent Employee from entering into this Agreement or performing
fully Employee's obligations hereunder.
Section 6.03. Additional Obligations. Both during and after the Term,
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Employee shall, upon reasonable notice, furnish the Company with such
information as may be in Employee's possession, and cooperate with the Company,
as may reasonably be requested by the Company (and, after the Term, with due
consideration for Employee's obligations with respect to any new employment or
business activity) in connection with any litigation in which the Company or any
Affiliate is or may become a party. The Company shall reimburse Employee for all
time lost and reasonable expenses incurred by Employee in fulfilling Employee's
obligations under this Paragraph 2.01(c).
Section 6.04. Captions. The captions, headings, and arrangements used in
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this Agreement are for convenience only and do not in any way affect, limit, or
amplify the provisions hereof.
Section 6.05. Notices. All notices required or permitted to be given
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hereunder shall be in writing and shall be deemed delivered when actually
received or, if mailed, whether or not actually received, three days after
deposited in the United States mail, postage prepaid, registered
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or certified mail, return receipt requested, addressed to the party to whom
notice is being given at the specified address or at such other address as such
party may designed by notice:
Company: Fresh America
0000 XXX, Xxxxx 000
Xxxxxx, XX 00000
Employee: _____________________
_____________________
_____________________
Either party may change the address to which notices are to be sent by
giving notice of such change of address in the manner provided by this
paragraph.
Section 6.06. Severability. If any provision of this Agreement is held
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to be illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
constituted a part of this Agreement; the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement.
Section 6.07. Entire Agreement; Amendments. This Agreement (including any
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Schedules referenced herein) contains the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, if any, relating to the subject matter hereof. This
Agreement may be amended only by an instrument in writing executed by a duly
authorized officer of Company and by Employee.
Section 6.08. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
Section 6.09. Governing Law. This Agreement shall be construed and
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enforced according to the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
FRESH AMERICA CORP.,
A Texas Corporation
By: ___________________________
Name:__________________________
Title:_________________________
Employee:
_______________________________
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