EXHIBIT 10.48
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated effective
_________, __, 1997, is between Colorado Greenhouse Holdings, Inc., a Delaware
corporation (the "Company"), and Xxxx Fine ("Employee").
In consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee and Employee
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hereby agrees to be employed by the Company for the period and upon the terms
and conditions hereinafter set forth.
2. Capacity and Duties. Employee shall initially be employed by the
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Company as its Vice-President of Finance or in such other executive capacity as
the officers or directors of the Company shall determine. During his employment
Employee shall perform the duties and bear the responsibilities commensurate
with his position and shall serve the Company faithfully and to the best of his
ability, under the direction of the board of directors and the duly elected
officers of the Company. Employee shall devote his entire working time,
attention and energies to the business of the Company. His actions shall at all
times be such that they do not discredit the Company or its products and
services. Except for his involvement in personal investments, provided such
involvement does not require any significant services on his part, Employee
shall not engage in any other business activity or activities that require
significant personal services by Employee or that, in the judgment of the board
of directors, may conflict with the proper performance of Employee's duties
hereunder.
3. Compensation.
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(a) For all services rendered by Employee the Company shall pay
Employee during the term of this Agreement an annual salary as set forth herein,
payable semimonthly in arrears. Employee's initial annual salary shall be
$105,000. During the term of this Agreement, the amount of Employee's salary
shall be reviewed at periodic intervals and, upon agreement of the parties
hereto, appropriate adjustments in such salary may be made.
(b) In addition to salary payments as provided in Section 3(a),
the Company shall provide Employee, during the term of this Agreement, with the
benefits of such insurance plans, hospitalization plans and other employee
fringe benefit plans as shall be generally provided to employees of the Company
and for which Employee may be eligible under the terms and conditions thereof.
Nothing herein contained shall require the Company to adopt or maintain any such
employee benefit plans.
(c) During the term of this Agreement, except as otherwise
provided in Section 5(b), Employee shall be entitled to sick leave and annual
vacation consistent with the Company's customary sick leave and vacation
policies.
(d) During the term of this Agreement the Company shall
reimburse Employee for all reasonable out-of-pocket expenses incurred by
Employee in connection with the business of the Company and in the performance
of his duties under this Agreement upon presentation to the Company of an
itemized accounting of such expenses with reasonable supporting data.
(e) The Company shall reimburse Employee for reasonable moving
expenses not to exceed $15,000 within 30 days after presentation of reasonable
documentation thereof.
(f) The Company's compensation committee (the "Compensation
Committee") shall establish a performance based bonus plan that will provide for
annual bonuses of up to 30% of Employee's annual salary based upon achieving
certain milestones.
(g) The Company shall grant to Employee the option to acquire
shares of the Company's common stock as provided in the Incentive Stock Option
Certificate attached as Exhibit A. In addition, the Company may grant to
Employee such other stock options as may be approved by the Compensation
Committee.
4. Term. Unless sooner terminated in accordance with Section 5, the
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term of this Agreement shall be from the date of this Agreement until December
31, 1998, and thereafter shall continue from year to year unless and until
either party shall give notice to the other at least 60 days prior to the end of
the original or then current renewal term of his or its intention to terminate
at the end of such term. The provisions of Sections 6, 7, 8 and 10 shall remain
in full force and effect for the time periods specified in such Sections
notwithstanding the termination of this Agreement.
5. Termination.
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(a) If Employee dies during the term of this Agreement, the
Company shall pay his estate the compensation that would otherwise be payable to
him for the month in which his death occurs, and this Agreement shall be
considered terminated on the last day of such month.
(b) If during the term of this Agreement Employee is prevented
from performing his duties by reason of illness or incapacity for a continuous
period of 120 days the Company may terminate this Agreement upon 30 days' prior
notice thereof to Employee or his duly appointed legal representative. For the
purposes of this Section 5(b), a period of illness or incapacity shall be deemed
"continuous" notwithstanding Employee's performance of his duties during such
period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement upon at least 30
days' prior notice to him upon the happening of any of the following events:
(i) the sale by the Company of substantially all of its
assets to a single purchaser or associated group of purchasers who are
not then affiliates of the Company;
(ii) the sale, exchange or other disposition in one
transaction of 51% or more of the outstanding voting stock of the
Company to or with a person, firm or corporation not then an affiliate
of the Company;
(iii) a bona fide decision by the Company to terminate its
business and liquidate its assets (but only if such liquidation is not
part of a plan to carry on the Company's business through its
shareholders);
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(iv) the merger or consolidation of the Company in a
transaction in which the shareholders of the Company receive less than
50% of the outstanding voting stock of the new or continuing
corporation; or
(v) the damage, destruction or other loss (including that
caused by condemnation or similar proceedings) to the Company's
facilities to such an extent that the Company is unable to conduct the
ordinary course of its business for a continuous period of 90 days or
more.
(d) The Company may terminate this Agreement at any time, upon
10 days' prior notice, for Employee's misconduct or gross negligence or for a
material breach of any obligation created by this Agreement.
(e) The Company may terminate this Agreement at any time for any
or no reason upon payment to Employee of an amount equal to Employee's annual
salary under this Agreement at the time of such termination.
For purposes of this Agreement, the term "affiliate" or "affiliates" means a
person, firm or corporation that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with the
Company.
6. Confidential Information.
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(a) As used in this Agreement, the term "Confidential
Information" shall include all nonpublic information concerning or arising from
the Company's business, including, without limitation, trade secrets used or
developed by the Company in connection with its business; information concerning
the manner and details of the Company's operation, organization and management;
financial information and/or documents and nonpublic policies, procedures and
other printed or written material generated or used in connection with the
Company's business; the Company's business plans and strategies; the identities
of the Company's customers and the specific individual customer representatives
with whom the Company works and details of the Company's relationship with such
customers and customer representatives; the identities of distributors,
suppliers, contractors and vendors utilized in the Company's business and
details of the Company's relationship with such distributors, suppliers,
contractors and vendors; the nature of fees and charges made to the Company's
customers; nonpublic forms, contracts and other documents used in the Company's
business; the nature and content of computer software used in the Company's
business, whether proprietary to the Company or used by the Company under
license from a third party; and/or other information concerning know-how,
research, inventions, copyrights, trademarks, patents, processes, designs,
methods, concepts, prospects, customers, employees, contractors, earnings,
products, services, formulas, recipes, compositions, machines, equipment,
systems, and/or prospective and executed contracts and other business
arrangements.
(b) Except in connection with and in furtherance of Employee's
official duties with and on behalf of the Company, Employee shall not at any
time or in any manner use, copy, disclose, divulge, transmit, convey, transfer
or otherwise communicate any Confidential Information to any person or entity,
either directly or indirectly, without the Company's prior written consent.
(c) Employee acknowledges that during the term of this
Agreement, Employee will have access to Confidential Information, all of which
shall be made accessible to Employee
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only in strict confidence; that unauthorized disclosure of Confidential
Information will damage the Company's business; that Confidential Information
would be susceptible to immediate competitive application by a competitor of the
Company; that the Company's business is substantially dependent on access to and
the continuing secrecy of Confidential Information; that Confidential
Information is unique and proprietary to the Company and known only to Employee,
the Company and certain key employees and contractors of the Company; and that
title, ownership, possession and control of Confidential Information shall at
all times remain vested in the Company. Consequently, Employee acknowledges that
the restrictions contained in this Section 6 are reasonable and necessary for
the protection of the Company's business.
(d) All documents or other records containing or referring to
Confidential Information that are prepared by or provided to Employee during the
term of this Agreement or that come into Employee's possession in connection
with Employee's performance of services under this Agreement are and shall
remain the Company's property. Employee shall not copy or use any such
documents or Confidential Information for any purpose not relating directly to
Employee's duties under this Agreement, nor shall Employee market or in any way
provide or make available to any party other than the Company any of the
Confidential Information, except pursuant to prior written authorization from
the Company. Upon the termination of this Agreement for any reason and
regardless of the circumstances of such termination or the existence of any
dispute between Employee and the Company following or concerning the termination
of Employee's employment, or upon the request of the Company, its successors or
assigns, Employee shall immediately deliver to the Company or its designee (and
will not keep in Employee's possession or deliver to anyone else) any and all
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other
documents or property, or reproductions of any aforementioned items belonging to
the Company, its successors or assigns. Notwithstanding any other provision of
this Agreement, this Agreement shall not bar Employee from complying with any
subpoena or court order, provided that prior to doing so Employee shall give the
Company's Manager prior written notice, at the Company's principal place of
business, of Employee's receipt of any such subpoena or court order as far as
possible in advance of the appearance time set forth in the subpoena or court
order.
(e) Employee acknowledges that the Company has received and in
the future will receive from third parties confidential or proprietary
information, and that the Company must maintain the confidentiality of such
information and use it only for proper purposes. Employee shall not use or
disclose any such information except as permitted by the Company or the third
party to whom the information belongs.
(f) Employee shall not, during Employee's employment with the
Company, improperly use or disclose any proprietary information or trade secrets
belonging to any former employer or any third party to whom Employee owes a duty
of nondisclosure.
7. Covenants Not to Compete or Interfere.
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(a) During the term of this Agreement (or, if longer, during the
term of Employee's employment with the Company or any of its affiliates) and for
a period of eighteen months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not, within the United States or within a 50 mile radius of any
area where the Company is or contemplates doing business at the time of such
termination, directly or indirectly, own, manage, operate, control, be employed
by, participate in or be connected in any manner
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with the ownership, management, operation or control of any business that has
services or products competitive or similar to the services or products of the
Company or its affiliates.
(b) During the term of this Agreement (or, if longer, during the
term of Employee's employment with the Company or any of its affiliates) and for
a period of eighteen months after termination of this Agreement (or, if later,
termination of Employee's employment with the Company or any of its affiliates),
Employee shall not (i) directly or indirectly cause or attempt to cause any
employee of the Company or of any of its affiliates to leave the employ of the
Company or any affiliate, (ii) in any way interfere with the relationship
between the Company and any employee or between an affiliate and any employee of
the affiliate, (iii) directly or indirectly hire any employee of the Company or
of any affiliate to work for any organization of which Employee is an officer,
director, employee, consultant, independent contractor or owner of an equity or
other financial interest, or (iv) interfere or attempt to interfere with any
transaction in which the Company or any of its affiliates was involved during
the term of this Agreement or his employment.
(c) Employee acknowledges that through his employment with the
Company he will acquire access to information suited to immediate application by
a business in competition with the Company. Accordingly, Employee considers the
foregoing restrictions on his future employment or business activities in all
respects reasonable. Employee specifically acknowledges that the Company and its
licensees, as well as the Company's competitors, distribute their products
throughout the United States. Employee therefore specifically consents to the
foregoing geographic restriction on competition and believes that such a
restriction is reasonable, given the scope of the Company's business and the
nature of Employee's position with the Company.
(d) Employee acknowledges the following provisions of Colorado
law, set forth in Colorado Revised Statutes (S) 8-2-113(2):
"Any covenant not to compete which restricts the right of any person
to receive compensation for performance of skilled or unskilled labor
for any employer shall be void, but this subsection (2) shall not
apply to:
(a) Any contract for the purchase and sale of a business or
the assets of a business;
(b) Any contract for the protection of trade secrets;
(c) Any contract provision providing for the recovery of
the expense of educating and training an employee who
has served an employer for a period of less than two
years;
(d) Executive and management personnel and officers and
employees who constitute professional staff to
executive and management personnel."
Employee acknowledges that this Agreement is a contract for the protection of
trade secrets under (S) 8-2-113(2)(b), and is intended to protect the
confidential information and trade secrets of the Company; and that Employee is
an executive and management employee or professional staff to executive or
management personnel, within the meaning of (S) 8-2-113(2)(d).
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(e) Employee acknowledges and is prepared for the possibility
that his standard of living may be reduced during the noncompetition period
provided in this Section following the termination of this Agreement, and fully
accepts any risk associated with that possibility.
8. Injunctive Relief. Upon a breach or threatened breach by
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Employee of any of the provisions of Sections 6 or 7 of this Agreement, the
Company shall be entitled to an injunction restraining Employee from such
breach. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies for such breach or threatened breach, including
recovery of damages from Employee.
9. Waiver of Breach. A waiver by the Company of a breach of any
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provision of this Agreement by Employee shall not operate or be construed as a
waiver of any subsequent breach by Employee.
10. Severability. It is the desire and intent of the parties that
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the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision or
portion of this Agreement shall be adjudicated to be invalid or unenforceable,
this Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of this Section in the particular jurisdiction in which
such adjudication is made.
11. Inventions and Discoveries.
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(a) Employee agrees to disclose promptly to the Company the full
details of any and all ideas, processes, recipes, trademarks and service marks,
works, inventions, discoveries, marketing and business ideas, and improvements
or enhancements to any of the foregoing, that Employee conceives, develops or
creates alone or with the aid of others during the term of Employee's employment
with the Company (whether or not conceived, developed or created during regular
working hours) that: (i) relate to the Company's business; (ii) result from any
work performed by Employee for the Company; (iii) involve the use of the
Company's equipment, supplies, facilities, or trade secret information; (iv)
result from or are suggested by any work done at the Company's request or by any
Company employee other than Employee, or relate to any problems specifically
assigned to Employee; or (v) result from Employee's access to any of the
Company's memoranda, notes, records, drawings, sketches, models, maps, customer
lists, research results, data, formula, specifications, inventions, processes,
recipes, equipment, or the like.
(b) Employee shall assign to the Company, without further
consideration, Employee's entire right to any concept, idea or invention
described in the preceding subsection, which shall be the sole and exclusive
property of the Company whether or not patentable. Employee also acknowledges
that all original works of authorship which are made by Employee (solely or
jointly with others), within the scope of Employee's employment, and which are
protectable by copyright, are "works made for hire," as that term is defined in
the United States Copyright Act (17 U.S.C. (S) 101). To the extent that any
such works, by operation of law, cannot be "works made for hire," Employee
hereby assigns to the Company all right, title, and interest in and to such
works and to any related copyrights.
12. Notices. All communications, requests, consents and other
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notices provided for in this Agreement shall be in writing and shall be deemed
given if mailed by first class mail, postage prepaid, addressed as follows:
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(i) If to the Company: to its principal office at X.X. Xxx
000, Xxxx Xxxxxx, Xxxxxxxx 00000;
(ii) If to Employee: to _______________________________;
or such other address as either party may hereafter designate by notice as
herein provided. Notwithstanding the foregoing provisions of this Section 12, so
long as Employee is employed by the Company any such communication, request,
consent or other notice shall be deemed given if delivered as follows: if to
the Company, by hand delivery to any executive officer of the Company [other
than Employee], and if to Employee, by hand delivery to him.
13. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of Colorado.
14. Assignment. The Company may assign its rights and obligations
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under this Agreement to any affiliate of the Company or to any acquirer of
substantially all of the business of the Company, and all covenants and
agreements hereunder shall inure to the benefit of and be enforceable by or
against any such assignee. Neither this Agreement nor any rights or duties
hereunder may be signed or delegated by Employee.
15. Entire Agreement. This Agreement sets forth the entire agreement
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and understanding of the parties and supersedes all prior understandings,
agreements or representations by or between the parties, whether written or
oral, which relate in any way to the subject matter hereof.
16. Amendments. No provision of this Agreement shall be altered,
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amended, revoked or waived except by an instrument in writing signed by the
party sought to be charged with such amendment, revocation or waiver.
17. Binding Effect. Except as otherwise provided herein, this
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Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
assigns.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first above written.
THE COMPANY:
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COLORADO GREENHOUSE HOLDINGS, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
EMPLOYEE:
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_______________________________________
XXXX FINE
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