AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.12
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Agreement”)
is entered into as of February 1, 2018 (the
“Effective
Date”), by
and between WEED, Inc., a Nevada corporation
(“Corporation”), and
XXXXXX X. XXXXX (“Executive”).
The Corporation and Executive may be referred to herein
collectively as the “Parties” and each individually as
a “Party.”
RECITALS
WHEREAS, prior to the Effective Date, Executive was
employed by the Corporation pursuant to the certain Employment
Agreement dated October 1, 2016 among the Corporation and Executive
(“Original
Agreement”).
WHEREAS, the Corporation and Executive desire to amend and restate the
Original Agreement, on the terms and conditions set forth herein,
and for this Agreement to supersede and replace the Original
Agreement in its entirety.
WHEREAS, Executive received 4,000,000 shares of the
Corporation’s common stock as a signing bonus in accordance
with the Original Agreement.
WHEREAS, Executive agrees to forgo all other
previously agreed upon share payments and other consideration and
benefits set out in the Original Agreement.
WHEREAS,
the Corporation and Executive wish to
memorialize the terms of Executive’s employment with the
Corporation, the obligations of the Corporation to Executive, and
to specify certain rights, responsibilities and duties of
Executive.
AGREEMENT
NOW, THEREFORE,
based upon the premises set forth
herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
ARTICLE I
RESPONSIBILITIES
(a) Executive is
employed by the Corporation to serve as Secretary and Treasurer of
the Corporation with the powers and responsibilities as delegated
or assigned by the Corporation.
(b) Executive accepts
employment upon the terms set forth in this Agreement and will
perform diligently to the best of her abilities those duties in a
manner that promotes the interests and goodwill of the
Corporation.
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ARTICLE II
COMPENSATION
Section
2.1 General
Terms.
(a) Base
Salary. The
Corporation shall pay base compensation to Executive at the rate of $1,000.00 US
Dollars per week payable in accordance with the Corporation’s
ordinary payroll policies (“Base
Salary”).
(b) Bonus/Compensation.
In addition to the Base Salary, Executive shall be entitled to receive such
discretionary bonus or incentive compensation as mutually agreed to
by the Corporation and Executive, including, but not limited to,
Non-Qualified Stock Options as set out in that Non-Qualified Stock
Option Award Agreement and Restricted Stock as set out in the
Restricted Stock Agreement, both of even date
herewith.
Section
2.2 Reimbursement.
It is acknowledged by the Parties that Executive, in connection with the services
to be performed by her pursuant to the terms of this Agreement, may
be required to make payments for travel, communications,
entertainment of business associates and similar expenses. The
Corporation will reimburse Executive for all reasonable, documented
expenses of types authorized by the Corporation and incurred by
Executive in the performance of
her duties hereunder. Executive
will comply with such budget limitations and approval and reporting
requirements with respect to expenses as the Corporation may
establish in writing and communicate to Executive from time to time.
Section
2.3 Executive
Benefits.
During the term of this Agreement, the Corporation shall provide
Executive with executive and
fringe benefits under any and all executive benefit plans and
programs which are from time to time generally made available to
the executives of the Corporation, including, without limitation,
health and dental care, profit sharing plans, vacation benefits and
a per annum car allowance.
Section
2.4 Vacation.
Executive shall be entitled to
two (2) weeks of paid vacation, prorated for any year in which
Executive is not employed for
the entire calendar year. Upon termination of Executive’s employment, the
Corporation shall pay to Executive, or her estate or representative,
accrued and unused vacation to which Executive is entitled during the calendar
year.
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ARTICLE III
NONDISCLOSURE OF
CONFIDENTIAL INFORMATION
Section
3.1 Definitions.
For purposes of this Agreement, “Confidential
Information” is
any data or information that is unique to the Corporation,
proprietary, competitively sensitive, and not generally known by
the public, including, but not limited to, the Corporation’s
business plan, projects, prospective projects, customers, and
prospective customers. “Prospective
Customers” is understood to mean those
potential customers with whom or with which the Corporation is
engaged in active discussion about a business relationship,
training manuals, project development plans, bidding and pricing
procedures, market plans and strategies, business plans and
projections, internal performance statistics, financial data,
confidential information concerning executives of the Corporation,
operational or administrative plans, policy manuals, terms and
conditions of contracts and agreements, and all similar information
related to the business of the Corporation’s customers or
potential customers or suppliers, other than information that is
publicly available. The term “Confidential Information”
shall not apply to information which is: (i) already in
Executive’s possession
(unless such information was obtained by Executive from the Corporation in the
course of Executive’s
employment by the Corporation); (ii) received by Executive form a third party with no restriction on
disclosure; (iii) information that has become publicly
available through no fault of Executive; (iv) required to be disclosed by
any applicable law or by an order of a court of competent
jurisdiction; or (v) information that is developed by
Executive not in the course of
Executive’s
employment.
Section
3.2 Use and
Disclosure.
Executive recognizes and
acknowledges that the Confidential Information constitutes
valuable, special and unique assets of the Corporation. Except as
required to perform Executive’s duties as an employee of
the Corporation, Executive will
not use or disclose any Confidential Information of the
Corporation.
ARTICLE IV
TERM OF
AGREEMENT
Section
4.1 Term
of Agreement. This Agreement shall continue in full force and
effect for five (5) years from the date of the Original Agreement
(“Term”)
and shall be automatically renewed for consecutive two (2)
year periods upon the same terms, conditions and requirements
unless terminated by the Parties as set forth herein (each a
“Renewal
Term”). This Agreement may be terminated prior to the
end of its Term or any Renewal Term in accordance with Article V herein.
ARTICLE V
TERMINATION
Section
5.1 Termination.
Executive’s employment
hereunder will terminate upon the occurrence of the following
events:
(a) By the Corporation
and Executive.
The Corporation and
Executive may mutually agree to
terminate this Agreement at any time, for any reason, during the
Term or any Renewal Term. Following such termination, the
Corporation shall promptly reimburse Executive pursuant to Section 2.2 for expenses
incurred in the performance of her duties hereunder prior to
termination and make all payments that Executive shall be entitled to including,
but not limited to, Executive’s Base Salary and
bonus/compensation pursuant to Section 2.1 earned through the
date of termination.
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(b) By the Corporation
with Cause or by Executive
without Good
Reason. This
Agreement may be terminated by Executive without Good Reason, (Good Reason
is defined in Section
5.1(c)), upon thirty (30) days prior written notice, and by
the Corporation for Cause (as defined in I though III below), with
thirty (30) days prior written notice for any of the following
reasons:
I.
a material breach
by Executive of any of the
provisions of this Agreement that has a substantial negative impact
on the profitability of the Corporation, upon failure of
Executive to cure such breach
within thirty (30) days after receipt of written notice of breach
by the Corporation, or longer if the breach cannot reasonably be
cured within such thirty (30) day period;
II.
conviction of
Executive for a felony
involving moral turpitude; or
III.
commission by
Executive of an act of fraud,
embezzlement, or material dishonesty against the Corporation, or
any act that would foreseeably materially harm the reputation or
business of the Corporation, or its officers, directors and
shareholders.
Following such termination, the Corporation shall
reimburse Executive pursuant to Section 2.2
for expenses incurred in the
performance of her duties hereunder prior to termination and
Executive shall be entitled to any other payments due from the
Corporation including, but not limited to, her Base Salary and
bonus/compensation pursuant to Section 2.1
earned through the date of
termination.
(c) By
Executive
for
Good Reason.
Executive may upon thirty (30)
days prior written notice terminate this Agreement for Good Reason.
Termination for “Good
Reason” for purposes of this Section 5.1(c),
is a termination of employment under any of the following
circumstances:
I.
a material breach
by the Corporation of any of the provisions of this Agreement or
any other agreement related to Executive’s employment with the
Corporation, upon failure of the Corporation to cure such breach
within thirty (30) days after receipt of written notice of breach
by Executive;
II.
a decrease in
Executive’s Base Salary
as provided in Section
2.1 herein or a material change in Executive’s duties or
authority;
III.
Executive is asked or directed by the
Corporation to engage or participate in an activity or activities
that would result or could reasonably be believed to result in the
conviction of a criminal offense or the commission of an act of
fraud, embezzlement, or material dishonesty against the Corporation
by Executive, a member of the
Board of Directors, an officer or executive of the Corporation;
or
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IV.
Executive is
asked to perform regular services at a location that is more
than one hundred fifty (150) miles from the Tucson, Arizona
metropolitan area without Executive’s prior written
consent.
(d) Termination on
Death. In the event
of Executive’s death,
this Agreement will be deemed to have terminated on the date of her
death. Following such termination, the Corporation shall reimburse
Executive’s estate
pursuant to Section
2.2 for expenses incurred in the performance of her duties
hereunder prior to her death and Executive’s estate shall be entitled
to Executive’s Base
Salary and bonus/compensation pursuant to Section 2.1 earned through the
date of Executive’s
death.
(e) Termination on
Disability. This
Agreement may be terminated by the Corporation immediately upon
Executive’s
“disability” in the event Executive becomes physically or mentally
disabled. Executive will be
deemed disabled if, as a result of Executive’s incapacity due to
physical or mental illness, Executive shall have been absent from her
duties with the Corporation on a full-time basis for one hundred
eighty (180) business days in any three hundred sixty (360)
business day period. Following such termination, the Corporation
shall reimburse Executive
pursuant to Section
2.2 for expenses incurred in the performance of her duties
hereunder prior to termination and Executive shall be entitled to her Base
Salary and bonus/compensation pursuant to Section 2.1 earned through the
date of Executive’s
termination herein.
(f) Separation
Payments. Notwithstanding any provision to the contrary, in
the event that this Agreement is terminated by the Corporation
without Cause or by Executive
with Good Reason, then Executive shall also be entitled to
continue to receive Executive’s Base Salary, payable in
accordance with customary payroll practices (and subject to
customer withholding and payroll taxes) until twelve (12) months
from the termination date of Executive’s employment (collectively,
the “Separation
Payment”), provided, that, payment shall not be made
until the first payroll date of the Corporation occurring after the
sixtieth (60th) day following the
date of termination, and shall include any amounts that would have
otherwise been paid prior to such date.
(g) Section
409A. This Agreement shall comply with Section 409A of the
Internal Revenue Code of
1986, as amended, or an exception thereto. Each provision of
the Agreement shall be interpreted, to the extent possible, to
comply with Section 409A or an exception thereto. Nevertheless, the
Corporation does not and cannot guarantee any particular tax effect
or treatment of the amounts due under this Agreement. Except for
the Corporation’s responsibility to withhold applicable
income and employment taxes from compensation paid or provided to
Executive, the Corporation will
not be responsible for the payment of any applicable taxes on
compensation paid or provided pursuant to this Agreement.
Notwithstanding anything in this Agreement to the contrary, if the
Corporation concludes, in the exercise of its reasonable
discretion, that the severance benefits described in Section 5.2(f), are subject to
Section 409A of the Internal Revenue Code, no severance payment
will be paid prior to Executive’s “separation from
service” as defined in Treasury Regulation Section
1.409A-1(h) (applying the default rules of Treasury Regulation
Section 1.409A-1(h)).
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ARTICLE VI
GENERAL
TERMS
Section
6.1 Notices.
All notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to
have been given (i) when delivered by hand (with written
confirmation of receipt); (ii) when received by the addressee if
sent by a nationally recognized overnight courier (receipt
requested); (iii) on the date sent by facsimile or e-mail of a PDF
document (with confirmation of transmission) if sent during normal
business hours of the recipient, and on the next business day if
sent after normal business hours of the recipient; or (iv) on the
third day after the date mailed, by certified or registered mail,
return receipt requested, postage prepaid. Such communications must
be sent to the respective Parties at the following
addresses:
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If to the Corporation, to:
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Xxx Xxxxx Xxxxxx Xxx, 00xx
Xxxxx
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Xxxxxx, Xxxxxxx 00000
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If to Executive, to:
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Xxxxxx X. Xxxxx
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0000 Xxxxx Xxxx Xxxxx
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Xxxxxx, Xxxxxxx 00000
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Section
6.2 Legal Fees and
Expenses. The
prevailing party in any mediation, arbitration, or litigation
relating to this Agreement shall be entitled to recover from the
other party any and all attorneys’ and related fees and
expenses incurred by the prevailing party in such arbitration or
litigation.
Section
6.3 Successors
and Binding Agreement.
(a) This
Agreement shall be binding upon the Corporation and successors to
the Corporation, and shall be assignable, transferable or delegable
by the Corporation, at the Corporation’s sole
discretion.
(b) This
Agreement shall inure to the benefit of and be enforceable by
Executive’s personal or
legal representatives, executors, administrators, successors,
heirs, distributes and/or legatees.
Section
6.4 Entire Agreement;
Modification. This
Agreement constitutes the complete and entire agreement between the
Parties with respect to the subject matter hereof and supersedes
all prior agreements between the Parties. The Parties have executed
this Agreement based upon the express terms and provisions set
forth herein and have not relied on any communications or
representations, oral or written, which are not set forth in this
Agreement.
Section
6.5 Amendment.
The covenants or provisions of this Agreement may not be modified
by a subsequent agreement unless the modifying agreement: (i) is in
writing; (ii) contains an express provision referencing this
Agreement; (iii) is signed and executed on behalf of the
Corporation by an officer of the Corporation other than
Executive; (iv) is approved by
resolution of the Corporation; and (v) is signed by Executive.
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Section
6.6 Legal
Consultation. Both
Parties have been accorded a reasonable opportunity to review this
Agreement with legal counsel prior to executing this
Agreement.
Section
6.7 Choice of
Law. This Agreement
and the performance hereof will be construed and governed in
accordance with the laws of the State of Arizona, without regard to
its choice of law principles.
Section
6.8 Waiver of
Provisions. Any
waiver of any terms and conditions hereof must be in writing and
signed by the Parties hereto. The waiver of any of the terms and
conditions of this Agreement shall not be construed as a waiver of
any subsequent breach of the same or any other terms and conditions
hereof.
Section
6.9 Severability.
The provisions of this Agreement shall be deemed severable, and if
any portion shall be held invalid, illegal or unenforceable for any
reason, the remainder of this Agreement shall be effective and
binding upon the Parties provided that the substance of the
economic relationship created by this Agreement remains materially
unchanged.
Section
6.10 Remedies.
The Parties hereto acknowledge and agree that upon any breach by
Executive of her obligations
under Article III
hereof, the Corporation will have no adequate remedy at law, and
accordingly will be entitled to specific performance and other
appropriate injunctive and equitable relief. No remedy set forth in
this Agreement or otherwise conferred upon or reserved to any Party
shall be considered exclusive of any other remedy available to any Party, but
the same shall be distinct, separate and cumulative and may be
exercised from time to time as often as occasion may arise or as
may be deemed expedient.
Section
6.11 Counterparts.
This Agreement may be executed in multiple counterparts, each of
which will be deemed an original, and all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF,
the Corporation and Executive have
caused this Agreement to be executed on the day and year indicated
below to be effective on the day and year first written
above.
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EXECUTIVE:
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Xxxxxx X. Xxxxx
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CORPORATION:
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WEED,
Inc., a Nevada corporation
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By:
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Authorized
Signatory
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Print
Name
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