EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (“Agreement”)
is
entered into by and between NutraCea, a California corporation with principal
offices at 0000 00xx
Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (“NutraCea”)
and
Xxxxxxx Xxxxxxx, an individual residing at 0000 Xxxxxx Xx., Xxxxxxxxxx XX 00000
(“Employee”)
effective as of April 23,
2008
(the “Effective
Date”),
as
follows:
AGREEMENT
1. Employment.
NutraCea wishes to employ Employee and Employee agrees to provide services
for
NutraCea on the terms and conditions set forth below.
2. Employment;
Scope of Employment.
From
the
Effective Date until May 13, 2008 (“CFO
Date”),
Employee shall act as Special Financial Adviser to NutraCea. Beginning on the
CFO Date, Employee
shall act as the Chief Financial Officer of NutraCea. NutraCea reserves the
exclusive
right to
modify and designate Employee’s specific duties from time to time in any manner
consistent with Employee’s status as Chief Financial Officer. No modification or
change of Employee’s responsibilities and/or duties shall modify, change or
revoke any provision of this Agreement.
2.1 Best
Efforts; Full Working Time. Employee
agrees to devote his full working time and best efforts
to the
performance of Employee’s duties all in accordance with the provisions of this
Agreement.
2.2 Supervision
and Direction of Services.
All of
Employee’s services shall be under the supervision and direction of the Chief
Executive Officer of NutraCea and the Board of Directors of NutraCea.
2.3 Rules. Employee
shall be bound by all the policies, rules and regulations of NutraCea now in
force and by all such other policies, rules and regulations as may be hereafter
implemented and shall faithfully observe and abide by the same.
2.4 Exclusive
Services.
During
the term of this Agreement and any extension of this Agreement, Employee shall
not, directly or indirectly, whether as a partner, employee, creditor,
shareholder, independent contractor or otherwise, promote, participate or engage
in any activity or other business which is competitive with NutraCea’s business
operations. Employee agrees that Employee shall not enter into an agreement
to
establish, form, contract with or become employed by a competing business of
NutraCea while Employee is employed by NutraCea.
2.5 Non-Solicitation.
To
the
fullest extent permissible under applicable law, Employee agrees that both
during the term of this Agreement and for a period of two (2) year following
termination of this Agreement, Employee shall not take any action to induce
employees or independent contractors of NutraCea to sever their relationship
with NutraCea and accept an employment or an independent contractor relationship
with any other business.
3. Term
and Termination; Payments upon Termination.
3.1 Term
and Termination.
Unless
earlier terminated for Cause (as defined below), NutraCea hereby employs the
Employee for a period commencing on the Effective Date and ending on April
23,
2011 (the “Term”).
The
Term shall be extended automatically for successive one-year terms unless either
party notifies the other party in writing at least ninety (90) days prior to
the
expiration of the then effective Term of such party’s intention not to renew
this Agreement. The failure of NutraCea to renew the Agreement at the end of
any
Term for any reason other than “Cause” (as defined below) or no reason shall be
deemed a termination of Employee’s employment without Cause.
Other
than for Good Reason (defined below), Employee shall deliver written notice
to
NutraCea (“Voluntary
Termination Notice”)
at
least ninety (90) days before Employee may voluntarily terminate Employee’s
employment with NutraCea, which notice shall set forth the date in which
Employee desires to terminate Employee’s employment (“Voluntary
Termination”).
In
addition to any other remedies available to NutraCea, if in connection with
Employee’s voluntary termination employee does not provide the Voluntary
Termination Notice to NutraCea in the time and manner set forth above, all
stock
options held by Employee, including the Options (as described below), shall
immediately terminate at the time of Employee’s termination.
3.1.1 Termination
for Cause.
“Cause”
for
termination of Employee’s employment shall mean the occurrence of any of the
following:
(a) Employee
has breached a material terms hereof, which remains uncured for 20 days after
a
written demand for performance is delivered to Employee by the Board of
Directors that identifies the manner in which the Board of Directors believes
that Employee has not performed Employee’s material duties;
(b) Employee
has been grossly negligent or engaged in material willful or gross misconduct
in
the performance of his duties;
(c) Employee
has committed, as determined by the Board of Directors of NutraCea, or has
been
convicted by a court of law of, fraud, moral turpitude, embezzlement, theft,
or
dishonesty or other criminal conduct, and such misconduct is committed with
respect to NutraCea or any of its assets (or any such misconduct is committed
during the course and scope of the performance of his employment with
NutraCea);
(d) Employee
has been convicted by a court of law of fraud, moral turpitude, embezzlement,
theft, or dishonesty or other similar criminal conduct or a felony that does
not
comprise misconduct covered by Section 3.1.1 (c); or
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(e)
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Habitual
misuse of alcohol or drugs.
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3.1.2 Termination
for Good Reason.
Termination of employment by the Employee for “Good Reason” shall mean written
notice from the Employee to NutraCea
that the
Employee is terminating his employment for Good Reason, as herein defined,
which
notice occurs within six (6) months of the initial occurrence of the condition
constituting Good Reason, and provided, that the Employee may not terminate
his
employment pursuant to this clause unless he has given NutraCea
within
ninety (90) days of the initial occurrence of the condition constituting Good
Reason written notice of such condition in reasonable detail and NutraCea
fails to
remedy such condition within thirty (30) days following such written notice.
As
used herein, “Good
Reason”
means
(i) any material breach by NutraCea
of this
Agreement; (ii) the assignment of duties to Employee by NutraCea
that are
not consistent with and are adverse to his status as Chief Financial Officer
of
NutraCea;
(iii)
the relocation of Employee’s primary office location outside of the Phoenix
metropolitan area without Employee’s prior consent; (iv)
the
reduction of Employee’s Base Salary; (v) the failure of NutraCea to obtain from
any successor an agreement to assume and perform this Agreement or
(vi)
the
termination of Employee’s status as Chief Financial Officer of NutraCea;
provided, however, this Subsection 3.1.2 is subject to the terms of Subsection
3.1.1 which shall take precedence for the purposes of any termination payments
in accordance with Section 3.2 hereof.
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3.2 Payments
Upon Termination.
3.2.1For
Cause or Voluntary Termination.
Following any termination by NutraCea
for
Cause, or a Vouluntary Termination by Employee, Employee shall be entitled
to
receive in cash payment of an amount equal to all previously accrued but unpaid
or unused compensation, including but not limited to, salary, vacation pay
and
Employee may retain the vested portion of any stock and stock options granted
to
Employee as of such date, subject and pursuant to the terms of any stock option
agreements or stock purchase agreements entered into between NutraCea and
Employee, if any, which provide for the termination of a stock option or grant
NutraCea certain repurchase rights.
3.2.2 Without
Cause or Good Reason.
Following any termination by NutraCea
without
Cause, or any termination by the Employee for Good Reason
(collectively, a “No-Cause
Termination”),
Employee (or Employee’s estate) shall be entitled to receive in cash payment an
amount equal to all previously accrued but unpaid or unused compensation,
including but not limited to, salary, vacation pay and Employee may retain
the
vested portion of any stock and stock options granted to Employee as of such
date, subject and pursuant to the terms of any stock option agreements or stock
purchase agreements entered into between NutraCea and Employee, which provide
for the termination of a stock option or grant NutraCea certain repurchase
rights.
Further,
if a No-Cause Termination occurs in the first nine (9) months of Employee’s
employment with NutraCea, 1/36th
of the
shares of common stock subject to the Initial Option (defined below) shall
vest
for each full month that Employee is employed with NutraCea. In
addition, Employee shall be entitled to receive in a lump sum severance payment,
within thirty (30) days following such termination, an amount equal in the
aggregate to the sum of (i) an amount equal to the Employee’s salary otherwise
payable pursuant to Section 4.1 for the balance of the then effective Term,
but
in no event in an amount less than the sum of (x) twelve (12) months of
Employee’s salary and (y) an amount equal to the bonuses paid to Employee during
the preceding twelve (12) months, and (ii) any bonus amount that Employee has
earned during the fiscal year of such termination, but which has not been paid
to Employee.
3.2.3 Termination
Upon a Change of Control.
In the
event of a Change of Control (as defined below),
NutraCea
or
Employee may,
at
their respective
option,
upon
notice to the other, terminate
Employee's
employment
after
the
effective date of the Change of Control by providing the
other
party with thirty (30) days' written
notice; provided, that if Employee elects to terminate, (x) Employee must agree
to provide reasonable transition services for a period of up to six (6) months
after the date of Employee’s notice of termination if requested by NutraCea, and
(y) the compensation for such transition services shall equal Employee’s Base
Salary pro rated for the period of time of such transition services. Upon
termination of Employee’s employment during the twelve (12) month period
following a Change of Control, Employee shall receive (i) the severance and
other benefits set forth in Section 3.2.2, and (ii) immediate vesting of all
equity awards or options held by Employee of NutraCea or
its
successor. For the purposes of this Agreement, the term "Change
of Control"
shall
mean any of the following events if they occur after the CFO
Date:
(x) the direct or indirect beneficial ownership (within the meaning of 13D-G
of
the Securities Exchange Act of 1934, as now or hereafter amended (“Exchange
Act”))
of
fifty percent (50%) or more of NutraCea’s
outstanding stock is acquired or becomes held by any person or group of persons
(within the meaning of Section 13(d)(3) of the Exchange Act), or (y) the
sale,
mortgage, lease or other transfer in one or more transactions not in the
ordinary course of NutraCea's
business of assets constituting more than fifty percent (50%) of the assets
of
NutraCea and
its
subsidiaries (taken as a whole) to any such person or group of persons;
provided, however, that the reincorporation of NutraCea
to a
different jurisdiction in a transaction that does not result in NutraCea’s
shareholders immediately before such transaction holding less than fifty percent
(50%) of NutraCea’s
outstanding capital stock after such transaction shall not constitute a Change
of Control.
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3.2.4 Section
409A; Deferred Compensation.
Notwithstanding any of the above provisions concerning the timing of payment
of
benefits to Employee upon a termination of employment, all of the above
provisions shall be interpreted in such a manner as to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(“Code”),
and if
any of the above provisions would cause any of the above payments and benefits
not to comply with Section 409A and any regulations promulgated thereunder,
the
above provisions shall be revised and NutraCea
shall
pay the above amounts in such amounts, and as such times, as it concludes are
consistent with the provisions of Section 409A of the Code and regulations
promulgated thereunder. Employee agrees that the above benefits may be paid
sooner, or later, or in different amounts, than as reflected above if necessary
to comply with the foregoing provisions of the Code.
Employee’s
Initials ___________
4. Compensation;
Benefits.
4.1 Salary. Employee
shall be paid at a rate, which if annualized, equals two hundred twenty thousand
dollars ($220,000) per year subject to normal payroll withholdings and
NutraCea’s standard payroll practices
(“Base
Salary”).
Commencing on the second anniversary of the
CFO
Date,
Employee’s Base
Salary
shall be
increased annually by a minimum of a cost of living factor equal to the
percentage of such salary that is equal to the percentage increase in the
published Consumer Price Index selected by NutraCea (“CPI”)
for
such year over the same CPI for the previous year of the term.
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4.2 Expense
Reimbursement; Bonus Amounts.
4.2.1. Expense
Reimbursement. Employee
shall be reimbursed for reasonable rental housing expenses not to exceed five
thousand dollars ($5,000) per month for temporary housing within the Phoenix
metropolitan area until the earlier of August 31, 2008 or until Employee has
relocated to a permanent address in such location. In addition,
NutraCea
shall pay Employee a
moving
expense reimbursement of thirty thousand dollars ($30,000) on the CFO
Date,
but
only after
Employee
has relocated the primary residence of Employee and his immediate family to
Phoenix, Arizona, as evidenced by a written confirmation from Employee to
NutraCea.
4.2.2. Annual
Bonus.
Employee shall be eligible to participate in any NutraCea bonus program that
is
applicable to officers of NutraCea as may be adopted and in effect from time
to
time (subject to the terms and conditions of any such program). In addition,
Employee shall be eligible for an annual discretionary bonus of up to one
hundred percent (100%) of his salary amount as then in effect pursuant to
Section 4.1 (and pro-rated for any partial year), as determined by the NutraCea
Compensation Committee or Board of Directors, after first obtaining the
recommendations of a third party compensation consultant selected by NutraCea,
and the Chief Executive Officer of NutraCea.
4.3 Stock
Options.
4.3.1 Initial
Option.
NutraCea
will grant to Employee on the Effective Date, as part of Employee’s employment
agreement, a nonqualified stock option (“Initial
Option”)
to
purchase 350,000 shares of NutraCea’s common stock pursuant to the terms and
conditions of the NutraCea 2005
Equity
Incentive Plan (“2005
Plan”)
and
an
associated
stock
option agreement (“Initial
Option Agreement”).
Subject to the Initial Option Agreement and Employee continuing to be employed
by NutraCea through the following dates, the Initial Option shall vest as to
1/4th
of the
shares subject to the Initial Option on the nine (9) month anniversary of the
Effective Date and thereafter one twelfth (1/12th)
of the
shares subject to the Initial Option shall vest and become exercisable on each
successive three (3) month anniversary of the Effective Date.
4.3.2 Second
Option.
Employee shall be granted an additional nonqualified
performance stock option to purchase 250,000 shares of NutraCea’s common stock
at the Effective Date (“Second
Option”,
and
together with the Initial Option, the “Options”)
pursuant to the terms and conditions of the 2005 Plan and an associated stock
option agreement (“Second
Option Agreement”,
and
together with the Initial Option Agreement, the “Option
Agreements”).
Subject to the Second Option Agreement, satisfaction of the same
performance criteria determined by NutraCea’s
Board of Directors that apply to the performance stock options granted to
NutraCea’s other executive officers and Employee continuing to be employed by
NutraCea through the following dates, the Second Option shall vest as to twenty
five percent (25%) of the shares subject to the Initial Option on
the
first anniversary of the
CFO
Date, and thereafter thirty seven and one half percent (37.5%) of the shares
subject to the Second Option shall vest and become exercisable on each of the
second and third anniversaries of the CFO Date based on the performance criteria
of the calendar years 2009 and 2010.
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4.3.3 Additional
Terms of the Options.
The
Options shall have a per share
exercise
price equal to ten cents ($0.10) over the closing market price on the date
of
grant. All Option
grants
shall be subject to Board of Directors (and/or its compensation committee)
approval and to the terms and conditions of the corresponding Option Agreements.
If
at any
time after six months after the issuance of an Option there is no effective
registration statement under the Securities Act of 1933 registering the issuance
or resale by Employee of the vested and exercisable shares underlying the Option
(“Vested
Shares”),
then
the Option may also be exercised at such time by means of a “net exercise” in
which Employee shall be entitled to cancel the vested portion of the Option
and
receive a certificate for the number of shares of NutraCea’s common stock equal
to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)
=
|
the
Fair Market Value of a share of NutraCea’s common stock on that date, as
determined under NutraCea’s 2005 Equity Incentive
Plan;
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| (B) = |
the
per share exercise price of the Option on that date;
and
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(X)
=
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the
number of Vested Shares then issuable upon exercise of the Option
in
accordance with the terms of the Option by means of a cash exercise
rather
than a cashless exercise.
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Notwithstanding
the foregoing, Employee may not net-exercise any portion of an Option unless
Employee pays to NutraCea in cash at the time of the net-exercise the amount
of
any applicable federal, state and local withholding taxes.
4.4 Car
Allowance.
Employer shall provide Employee with an automobile allowance in the amount
of
eight hundred and fifty dollars ($850) per month, payable in accordance with
NutraCea’s
payroll periods. Notwithstanding the foregoing, Employer shall not be obligated
to make any down payments for the purchase of any automobile by or on behalf
of
Employee.
4.5. Vacation
and other Standard Benefits.
Employee
shall be entitled to four (4) weeks of paid vacation time per year of Employee’s
employment. Employee may not accrue vacation time in excess of such four (4)
week maximum. Accrual of vacation time shall be subject to the terms and
conditions of NutraCea’s vacation policy. Employee shall be entitled to health
benefits in accordance with NutraCea’s standard policies. In addition, Employee
is entitled to paid holidays, sick leave and other benefits in accordance with
NutraCea’s standard policies. Employee shall be reimbursed for reasonable
business expenses, subject to prior approval by NutraCea in accordance with
NutraCea’s standard policies for employees and conditioned upon Employee’s prior
presentation to NutraCea’s accounting department of appropriate receipts or such
other verification of expenses as NutraCea may require from time to
time.
5. Employment
Information.
Employee
represents and warrants to NutraCea that information provided by Employee in
connection with Employee’s employment and any supplemental information provided
to NutraCea is complete, true and materially correct in all respects.
Employee
has not omitted any information that is or may reasonably be considered
necessary or useful to evaluate the information provided by Employee to
NutraCea. Employee shall immediately notify NutraCea in writing of any change
in
the accuracy or completeness of all such information.
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6. Trade
Secrets.
Employee
acknowledges that NutraCea has gone to great time and expense to develop
customers and to develop procedures and processes for development of products
and services and the sales of products and services. Such procedures and
processes in addition to various other types of proprietary information are
included as part of the “confidential information” described in the “Proprietary
Information Agreement” attached hereto as Exhibit
A.
Employee has previously executed the Proprietary Information Agreement or agrees
to execute NutraCea’s Proprietary Information Agreement contemporaneously with
the execution of this Agreement and employment.
7. Remedies
for Breach of Covenant Regarding Confidentiality.
The
parties agree that the breach by Employee of any covenants contained in Sections
2.4, 2.5, 5 and 6 will result in immediate and irreparable injury to NutraCea.
In the event of any breach by Employee of the covenants contained in Sections
2.4, 2.5, 5 or 6, NutraCea shall be entitled to seek recourse through all
available legal and equitable remedies necessary or useful to prevent any
likelihood of immediate or irreparable injury to NutraCea. The
parties agree that, in the case of such a breach or threat of breach by Employee
of any of the provisions of such Sections, NutraCea may take any appropriate
legal action, including without limitation action for injunctive relief,
consisting of orders temporarily restraining and preliminarily and permanently
enjoining such actual or threatened breach.
8. Miscellaneous.
8.1 Choice
of Law, Jurisdiction, Venue.
The
rights and obligations of the parties and the interpretation and performance
of
this Agreement shall be governed by the laws of Arizona, excluding its conflict
of laws rules, except as such laws may be interpreted, enforced, or pre empted
by federal law.
8.2. Entire
Agreement.
This
Agreement, the Proprietary Information Agreement dated April 23, 2008 and
described in Section 6, and the Option Agreements referenced in Section 4.3
contain the entire Agreement among the parties and supersede all prior and
contemporaneous oral and written agreements, understandings and representations
among the parties. There are no representations, agreements, arrangements,
or
understandings, whether oral or written, between or among the parties relating
to the subject matter of this Agreement that are not fully expressed herein
and
therein.
8.3 Notices.
Any
notice under this Agreement shall be in writing, and any written notice or
other
document shall be deemed to have been duly given (i) on the date of personal
service on the parties, (ii) on the third business day after mailing, if the
document is mailed by registered or certified mail, (iii) one day after being
sent by professional or overnight courier or messenger service guaranteeing
one-day delivery, with receipt confirmed by the courier, or (iv) on the date
of
transmission if sent by telegram, telex, telecopy or other means of electronic
transmission resulting in written copies, with receipt confirmed. Any
such
notice shall be delivered or addressed to the parties at the addresses set
forth
above or at the most recent address specified by the addressee through written
notice under this provision. Failure
to conform to the requirement that mailings be done by registered or certified
mail shall not defeat the effectiveness of notice actually received by the
addressee.
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8.4 Severability.
NutraCea
and Employee agree that should any provision of this Agreement be declared
or be
determined by any court of competent jurisdiction to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining parts,
terms and provisions shall not be affected thereby, and said illegal,
unenforceable or invalid part, term or provision shall be deemed not to be
part
of this Agreement.
8.5 Attorneys’
Fees.
If
the
services of an attorney are used by any party to secure the performance of
this
Agreement or otherwise upon the breach or default of another party to this
Agreement, or if any judicial remedy or arbitration is sought to enforce or
interpret any provision of this Agreement or the rights and duties of any person
in relation thereto, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and other expenses, in addition to any other relief to
which such party may be entitled. Any
award
of damages by any court or arbitration as a result of the breach of this
Agreement or any of its provisions shall include an award of prejudgment
interest from the date of the breach at the maximum amount of interest allowed
by law. NutraCea will reimburse
Employee for the reasonable attorneys’ fees and expenses incurred by Employee in
the negotiation of this Agreement in an amount not to exceed ten thousand
dollars ($10,000).
8.6 Amendment.
The
provisions of this Agreement may be modified at any time by agreement of the
parties. Any
such
agreement hereafter made shall be ineffective to modify this Agreement in any
respect unless in writing and signed by the party against whom enforcement
of
the modification or discharge is sought.
8.7 No
Transfer or Assignment; No Third-Party Beneficiaries.
The
rights of Employee hereunder have been granted by NutraCea with the
understanding that this Agreement is personal to, and shall be performed by
Employee individually. This Agreement is not transferable or assignable by
Employee in any manner. No person or entity other than NutraCea and Employee
shall have any rights whatsoever under this Agreement. No
person
or entity other than NutraCea or Employee shall have any right to enforce any
provision of this Agreement, or to recover damages on account of the breach
of
this Agreement. No heir, successor or assign of Employee, whether voluntarily
or
by operation of law, shall have or succeed to any rights of NutraCea or Employee
hereunder.
8.8 Waiver.
Any
of
the terms or conditions of this Agreement may be waived at any time by the
party
entitled to the benefit thereof, but no such waiver shall affect or impair
the
right of the waiving party to require observance, performance or satisfaction
of
that term or condition as it applies on a subsequent occasion or of any other
term or condition.
8.9 Resolution
of Disputes.
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8.9.1 Resolution
of Disputes.
NutraCea and Employee agree that any claim or controversy arising out of or
pertaining to this Agreement or the termination of Employee's employment,
including but not limited to, claims of wrongful treatment or termination
allegedly resulting from discrimination, harassment or retaliation on the basis
of race, sex, age, national origin, ancestry, color, religion, marital status,
status as a veteran of the Vietnam era, physical or mental disability, medical
condition, or any other basis prohibited by law ("Dispute")
shall
be resolved by binding arbitration as provided in this paragraph. The parties
agree that no party shall have the right to xxx any other party regarding a
Dispute except as provided in this paragraph.
8.9.2
Binding
Arbitration.
Any
Dispute between the parties shall be submitted to, and conclusively determined
by, binding arbitration in accordance with this paragraph. The provisions of
this paragraph shall not preclude any party from seeking injunctive or other
provisional or equitable relief in order to preserve the status quo of the
parties pending resolution of the Dispute, and the filing of an action seeking
injunctive or other provisional relief shall not be construed as a waiver of
that party's arbitration rights. Except as provided herein, the arbitration
of
any Dispute between the parties to this Agreement shall be governed by the
rules
of arbitration of the American Arbitration Association (“AAA”).
8.9.3 Appointment
of Arbitrator.
Within
thirty (30) days of service of a demand for arbitration by either party to
this
Agreement, the parties shall endeavor in good faith to select a single
arbitrator, who shall be a licensed attorney selected from the AAA list of
labor
and employment arbitrators. If they fail to do so within that time period,
an
arbitrator shall be selected in accordance with the AAA rules of arbitration.
8.9.4 Initiation
of Arbitration.
In the
case of any Dispute between the parties to this Agreement, either party shall
have the right to initiate the binding arbitration process provided for in
this
paragraph by serving upon the other party a demand for arbitration within the
statutory time period from the date the Dispute first arose.
8.9.5
Location
of Arbitration.
Any
arbitration hearing shall be conducted in Phoenix, Arizona.
8.9.6
Applicable
Law.
The law
applicable to the arbitration of any Dispute shall be, as provided in Section
8.1 and the Federal Arbitrator Act (Title 9, US Code, Section 1 et
Seq.).
8.9.7
Arbitration
Procedures.
Except
as otherwise provided in this paragraph, the arbitration shall be governed
by
the AAA rules. The parties shall be entitled to conduct discovery sufficient
to
adequately arbitrate their claims or defenses, including access to essential
documents and witnesses, as determined by the arbitrator and subject to limited
judicial review. In addition, either party may choose, at that party’s
discretion, to request that the arbitrators resolve any dispositive motions
prior to the taking of evidence on the merits of the Dispute. In the event
a
party to the arbitration requests that the arbitrators resolve a dispositive
motion, the arbitrators shall receive and consider any written or oral arguments
regarding the dispositive motion, and shall receive and consider any evidence
specifically relating thereto, and shall render a decision thereon, before
hearing any evidence on the merits of the Dispute.
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8.9.8
Scope
of Arbitrators' Award or Decision.
NutraCea and Employee agree that if the arbitrators find any Disputed claim
to
be meritorious, the arbitrators shall have the authority to order all forms
of
legal and/or equitable relief that would otherwise be available in court and
that is appropriate to the claim. Any decision or award by the arbitrators
shall
be a reasoned opinion in writing citing facts and law and shall be specific
enough to permit limited judicial review if necessary.
8.9.9 Costs
of Arbitration; Attorneys’ Fees.
NutraCea and Employee agree that the arbitrators, in their discretion and
consistent with applicable law, may award to the prevailing party the costs
and
attorneys’ fees incurred by that party in participating in the arbitration
process as long as they do not exceed those that would be incurred by Employee
in a court action.
8.9.10 Acknowledgment
of Consent to Arbitration.
NOTICE:
BY EXECUTING THIS AGREEMENT EMPLOYEE AGREES TO HAVE ANY DISPUTE ARISING OUT
OF
THE MATTERS INCLUDED IN THE "RESOLUTION OF DISPUTES" PROVISION DECIDED BY
NEUTRAL ARBITRATION AS PROVIDED HEREIN AND EMPLOYEE WAIVES ANY RIGHTS EMPLOYEE
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
EXECUTING THIS AGREEMENT EMPLOYEE WAIVES EMPLOYEE’S JUDICIAL RIGHTS TO APPEAL.
IF EMPLOYEE REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION,
EMPLOYEE MAY BE COMPELLED TO ARBITRATE. EMPLOYEES AGREEMENT TO THIS ARBITRATION
PROVISION IS VOLUNTARY. BY EXECUTING THIS AGREEMENT EMPLOYEE IS INDICATING
THAT
EMPLOYEE HAS READ AND UNDERSTOOD THE FOREGOING AND AGREES TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION OF DISPUTES PROVISION
TO
NEUTRAL ARBITRATION.
10
8.10 Exhibits.
All
exhibits to which reference is made are deemed incorporated in this Agreement
whether or not actually attached.
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NUTRACEA
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By:
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Title:
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Employee:
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Xxxxxxx
Xxxxxxx
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[SIGNATURE
PAGE TO EMPLOYMENT AGREEMENT]
11
EXHIBIT
A
PROPRIETARY
INFORMATION AGREEMENT
12
EXHIBIT
B
NUTRACEA
TERMINATION
CERTIFICATION
This
is
to certify that I do not have in my possession, nor have I failed to return,
any
devices, records, data, disks, computer files, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items developed by me pursuant to employment with NutraCea or otherwise
belonging to NutraCea, a California corporation ( “NutraCea”),
its
successors or assigns or any parent or subsidiary of
NutraCea.
I
further
certify that I have complied with all the terms of
NutraCea’s Proprietary Information Agreement signed by me, including the
reporting of any inventions and original works of authorship (as defined
therein), conceived or made by me (solely or jointly with others) covered by
that agreement.
I
further
agree that, in compliance with the Proprietary Information Agreement, I will
preserve as confidential all trade secrets, confidential knowledge, data or
other proprietary information relating to products, processes, know-how,
designs, formulas, developmental or experimental work, computer programs, data
bases, other original works of authorship, customer lists, business plans,
financial information or other subject matter pertaining to any business of
NutraCea,
any parent or subsidiary of
NutraCea, or any of its respective employees, clients, consultants or
licensees.
I
further
agree that for twenty
four
(24)
months
from this date, I will not (i) hire any employees of NutraCea,
or (ii) directly or indirectly, solicit, induce, recruit or encourage any
NutraCea employee, consultant, vender, supplier, customer or client to sever
its
relationship with
NutraCea
or accept an employment, consultant or other business relationship with any
other business.
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Employee
Signature
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Date:
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Employee
Name
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13
