EXHIBIT 10.20
EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS AGREEMENT is made as of this 31st day of May, 1995 by and
between Vinifera, Inc., an Oregon corporation (the "Company"), and Xxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the business of propagating
superior varieties of grape vines in commercial quantities (the "Business");
and
WHEREAS, Xxxxxxxxx is employed by the Company as its President and
possesses expertise in technology and know-how in areas relevant to the
Business; and
WHEREAS, the Company and Xxxxxxxxx mutually desire that the Company
continue to employ Xxxxxxxxx as its President following a change of control of
the Company on the effective date hereof.
NOW, THEREFORE, in consideration of the covenants and agreements of
the parties herein contained, the parties hereto agree as follows:
1. Employment and Duties. The Company hereby agrees to employ
Xxxxxxxxx as the President and Chief Executive Officer of the Company on the
terms and conditions set forth herein, and Xxxxxxxxx hereby agrees to remain
in the employ of the Company on such terms and conditions. Xxxxxxxxx shall
serve without additional compensation as a director or in such additional
offices of the Company or any of its affiliates to which Xxxxxxxxx may be duly
appointed or elected. Xxxxxxxxx shall perform such duties as shall be
reasonably assigned to him from time to time by the Board of Directors of the
Company. Xxxxxxxxx agrees to devote substantially all of his business' time
and effort to the diligent and faithful performance of such duties. Before
engaging in any outside business activity, Xxxxxxxxx will obtain the consent
of the Board of Directors, which shall not be unreasonably withheld.
2. Term. The term of Bouckaert's employment hereunder shall
commence on the date hereof and shall continue until the fifth anniversary of
the date hereof. Such term may be extended as the parties subsequently may
agree.
3. Compensation. As compensation for his performance of
services as an employee hereunder, Xxxxxxxxx shall be entitled to receive:
a. a salary at the annual rate of One Hundred Sixty
Thousand Dollars ($160,000.00) ("Salary") payable in substantially
equal monthly installments, Bouckaert's salary may be adjusted
after the completion of his first year of service and each year
thereafter under this Agreement at the discretion of the Company's
board of directors;
b. a one-time signing bonus of Forty Thousand Dollars
($40,000.00) payable upon execution of this Agreement; and
c. incentive stock options to purchase 400,000 shares of
the Company's common stock if and as approved (which approval will
not be unreasonably withheld) by the Board of Directors in
connection with the adoption of an employee stock option plan for
the Company. Such stock options shall vest annually in four (4)
equal amounts, commencing upon the completion of Bouckaert's second
year of service under this Agreement, dependent on continued
employment. The exercise price for each stock option shall be
equal to the fair market value of one share of the Company's common
stock at the time such stock option is granted.
Xxxxxxxxx shall also be entitled to receive the benefits set forth
on Schedule A hereto.
4. Commissions. Xxxxxxxxx shall be entitled to receive
commissions equal to one percent (1%) of all equity investment capital
Xxxxxxxxx is directly responsible for raising for the Company, payable in each
case within thirty (30) days of the Company's receipt of each said investment;
provided, however, that the Company shall be under no obligation to accept any
particular offer of investment at any time, and the terms and conditions of
any proposed investment (whether or not introduced by Xxxxxxxxx) shall at all
times be in the sole discretion of and determined solely by the Board of
Directors of the Company; and, further provided that in the determination of
whether Xxxxxxxxx is in any case "directly responsible" for an equity
investment shall be in the sole discretion of the board of directors of the
Company to be determined reasonably and in good faith. For purposes of this
Agreement, Xxxxxxxxx shall be deemed "directly responsible" for those accepted
investments in which he both initiated the contact and actively participated
in securing the investments.
5. Waiver of Acceleration. As a condition to this Agreement and
the Stock Purchase Agreement, Xxxxxxxxx hereby forever waives any right of
acceleration of vesting of stock options for shares of the Company's stock
based on a "Change in Control," as that term is defined in that certain Award
Agreement under the Vinifera, Inc. 1993 Award Plan dated March 9, 1993,
between Xxxxxxxxx and the Company (the "Plan").
6. Confidential Information; Inventions.
a. In the course of his employment by the Company,
Xxxxxxxxx has acquired and will continue to acquire information and
knowledge respecting the proprietary and confidential affairs of
the Company and the Business, including without limitation
confidential information with respect to the Company's products,
technology, know-how, processes, customer lists and distribution
methods ("Confidential Information"). Accordingly, Xxxxxxxxx
agrees that he shall not during the period of his employment
hereunder of thereafter use for his own or any other person's or
entity's benefit any such Confidential Information acquired during
the term of his employment with the Company. Further, during the
period of his employment hereunder and thereafter, Xxxxxxxxx shall
not, without the written consent of the Board of Directors of the
Company or a person duly authorized thereby, disclose to any
person, other than an employee of the Company or a person to whom
disclosure is reasonably necessary or appropriate in connection
with the performance by Xxxxxxxxx of his duties hereunder, any
Confidential Information obtained by him while in the employ of the
Company.
x. Xxxxxxxxx agrees that all memoranda, notes, records,
papers or other documents and all copies thereof containing
Confidential Information, some of which may be prepared by him, and
all objects associated therewith in any way obtained by him shall
be the Company's property. Xxxxxxxxx shall not, except for the
Company's use, copy or duplicate any of the aforementioned
documents or objects, nor remove them from the Company's
facilities, nor use any information concerning them except for the
Company's benefit, either during his employment or thereafter.
Xxxxxxxxx agrees that he will deliver the original and all copies
of all of the aforementioned documents, including, but not limited
to, computer files and objects, if any, that may be in his
possession to the Company on termination of his employment, or at
any other time upon the Company's request.
x. Xxxxxxxxx agrees to disclose to Company and to assign
to Company all of Bouckaert's rights in any designs, discoveries,
improvements and ideas, whether or not patentable, including,
without limitation upon the generality of the foregoing, novel or
improved products, processes, technology and know-how, which either
(a) relate to (i) the Business or (ii) bouckaert's actual or
demonstrably anticipated research or development, or (b) result
from any work performed by Xxxxxxxxx for the Company (hereinafter
collectively "Inventions"), conceived or reduced to practice at any
time during Bouckaert's employment by the Company, either solely or
jointly with others and whether or not developed on Bouckaert's own
time or with the resources of the Company. Xxxxxxxxx agrees that
Inventions first reduced to practice within one (1) year after
termination of Bouckaert's employment by Xxxxxxxxx shall be
presumed to have been conceived during such employment unless
Xxxxxxxxx can establish specific events giving rise to the
conception which occurred after such employment. Further, except
as otherwise expressly set forth herein, Xxxxxxxxx disclaims and
will not assert any rights in Inventions actually made or as having
been made, conceived or acquired prior to employment by the
Company.
7. No Competition. Subject to Section 8(a)(iv), Xxxxxxxxx
agrees that during his employment by the Company and during a period ending
three (3) years after termination of such employment, he will not, directly or
indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer, employee,
partner, director or otherwise with, or have any financial interest in, or aid
or assist anyone else in the conduct of, the business of the type conducted by
the Company or that competes with the Company or the Business in any
geographic area where the Business is being conducted, at the time of
termination of Bouckaert's employment with the Company hereunder; provided,
however, that the foregoing agreement shall not preclude the passive ownership
for investment purposes only of not more than 5% of the equity securities of a
corporation which has such securities registered under Section 12 of the
Securities Exchange Act of 1934, as amended. Xxxxxxxxx further agrees that
during his employment with the Company he shall not make preparations to
engage in any activity which would be prohibited by the foregoing provisions
of this Paragraph 7.
8. Termination of Employment.
x. Xxxxxxxxx'x employment shall terminate, or be subject
to termination, prior to the term specified in Paragraph 2 hereof,
as follows:
(i) Death. Bouckaert's employment hereunder shall
terminate upon his death.
(ii) Disability. Except as prohibited by applicable
law, in the event Xxxxxxxxx becomes physically or mentally
disabled so as to become unable, for a period of more than
ninety (90) consecutive working days or for more than ninety
(90) working days in the aggregate during any twelve-month
period, to perform his duties hereunder or substantially a
full-time basis, the Company may, at its option, terminate
Bouckaert's employment hereunder upon not less than ten (10)
days' written notice.
(iii) Cause. The Company may, at any time, terminate
Bouckaert's employment hereunder for Cause. For the purposes
of this Agreement, the Company shall have "Cause" to
terminate Bouckaert's employment under upon (A) Bouckaert's
engaging in misconduct which is injurious to the Company or
its affiliates, (B) the material breach by Xxxxxxxxx of any
of the provisions of this Agreement, which violation
continues for a period of ten (10) days following notice from
the Company to Xxxxxxxxx stating, with reasonable
specificity, the nature of such alleged breach, or (C)
Bouckaert's conviction of a felony or a plea by Xxxxxxxxx of
nolo contendere to a felony.
(iv) Without Cause. The Company may, at any time,
terminate Bouckaert's employment hereunder without cause and
without the requirement of any reason or justification. In
the event Xxxxxxxxx is terminated without cause, he will be
bound by the provisions of Section 7 only for the period
during which he receives severance payments in accordance
with Section 8(b).
b. Cessation of Salary and Benefits After Termination. In
the event of the termination of Bouckaert's employment all payments
of salary and benefits under Paragraph 3 hereof shall cease, and
Xxxxxxxxx shall not be entitled to receive any compensation or
payment on account of such including, but not limited to, those
rights set forth in the Plan. In the event of the termination of
Bouckaert's employment pursuant to Paragraph 8(a)(iv) hereof,
Xxxxxxxxx shall be entitled to receive, in lieu of any other
compensation or payment as a result of such termination, and as
liquidated damages therefor, severance payments equal to the
payments of his Salary under Paragraph 3(a), at the time such
payment would have been made, and the continuation of medical
benefits for twelve (12) months following the date of such
termination. In the event the Board of Directors elect not to
renew this Agreement, Xxxxxxxxx shall receive such severance
payments for eight (8) months following the date Xxxxxxxxx receives
notice of the Board's intent not to renew or the expiration of this
Agreement, whichever comes first.
9. Notices. For the purposes of this Agreement, notices and all
other communications under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows or by facsimile transmission:
If to Xxxxxxxxx:
Xxxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Aherne & Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Company:
Vinifera, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: President
Facsimile: 000-000-0000
With a copies to:
Xxxxx & Xxxxxxx
One IBM Plaza
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
Xxxxxx & Godward
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile: 000-000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous.
a. No provisions of this Agreement may be amended unless
such amendment, modification or discharge is agreed to in writing
signed by the parties hereto.
b. No waiver by any party hereto of any breach of, or
compliance with, any condition or provision of this Agreement by
the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time. No such waiver shall be enforceable unless expressed in a
written instrument executed by the party against whom enforcement
is sought.
c. This Agreement constitutes the entire agreement of the
parties on the subject matter hereof and no agreements or
representations, oral or otherwise, expressed or implied, with
respect to the subject matter hereof have been made by either party
which are not set forth expressly in this Agreement. This
Agreement expressly supersedes the employment agreement between
Xxxxxxxxx and the Company dated February 1, 1993, which prior
agreement is hereby terminated.
d. If a court of competent jurisdiction should decide that
any of the provisions of Paragraphs 6, 7 or 8 are not enforceable,
in whole or in part, the parties declare it is their intention that
such unenforceable provisions be deemed reformed so that they apply
only to the maximum extent to which they can be enforced.
Xxxxxxxxx acknowledges that his violation, or threatened violation,
of the provisions of Paragraph 6, 7 or 8 would cause the Company
irreparable injury and, in addition to any other remedies to which
the Company may be entitled, the Company shall be entitled to
injunctive relief.
e. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns, and Xxxxxxxxx
and his heirs, executors, administrators and legal representatives.
f. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of Oregon applicable to contracts made and to be performed
therein between residents thereof.
g. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
h. This Agreement has been jointly drafted by the
respective representatives of the Company and Xxxxxxxxx and no
party shall be considered as being responsible for such drafting
for the purpose of applying any rule construing ambiguities against
the drafter or otherwise. No draft of this Agreement shall be
taken into account in construing this Agreement.
XXXXXXXXX ACKNOWLEDGES HAVING READ AND SIGNED THIS AGREEMENT AND
HAVING RECEIVED A COPY THEREOF, INCLUDING THE FOLLOWING NOTICE:
This Agreement does not apply to an Invention for which no
equipment, supplies, facility, trade secret information or other property of
the Company was used and which was developed entirely on Bouckaert's own time,
unless (a) the Invention relates (i) to the Business or (ii) to the Company's
actual or demonstrably anticipated research or development, or (b) the
Invention results from any work performed by Xxxxxxxxx for the Company or any
current or prior affiliate of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
Xxxxxx X. Xxxxxxxxx
VINIFERA, INC.
By: Xxxxxx Chanson
Title: President
