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EXHIBIT 10.40
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of November 20, 1998, by
and among The UniMark Group, Inc., a Texas corporation, UniMark Foods, Inc., a
Texas corporation and wholly owned subsidiary of The UniMark Group, Inc.
(collectively, the "Company"), and Xxxxx Xxxxxx, an individual (the "Employee").
WHEREAS, the Company wishes to employ Employee and Employee wishes to
be an employee of the Company for the period and on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing promises and the
covenants, conditions, representations and warranties contained herein, the
parties hereto agree as follows:
1. Employment. Employee shall perform services for the Company in the
position of Senior Vice President of Marketing of UniMark Foods, Inc., and
Employee shall perform such duties and responsibilities as may be assigned from
time to time by the Company's Board of Directors (the "Board") consistent with
Employee's position. From time to time, the Company may change Employee's title
as it may determine appropriate in light of the Company's current structure and
staffing provided that the title shall properly reflect Employee's status as an
executive. During the term of his employment with the Company, Employee will
devote his best efforts and substantially all of his business time and attention
(except for vacation periods as set forth below and reasonable periods of
illness or other incapacities permitted by the Company's general employment
policies) to the business of the Company.
2. Term of Agreement. The term of this Agreement shall commence as of
November 30, 1998 (the "Effective Date"), and shall continue for a period of 24
months (the "Term") unless Employee's services are terminated pursuant to the
provisions of Section 7 hereof. At the end of the Term, if Employee is still
employed by the Company pursuant to this Agreement, the term of this Agreement
may be extended by mutual written consent of the parties hereto, and all of the
terms and conditions of this Agreement shall thereafter apply during such
extended term.
3. Location of Services. Employee's services under this Agreement shall
be performed primarily at the facilities of the Company located in Bartonville,
Texas, or at such other facilities as the Company and Employee may agree upon
from time to time. Employee acknowledges and agrees that Employee's job
responsibilities may require extensive travel, and Employee agrees to travel as
necessary to discharge those duties.
4. Standard Terms; Proprietary Information. The employment relationship
between the parties shall also be governed by the general employment policies
and practices of the Company, including those relating to protection of
confidential information and assignment of inventions, except that when the
terms of this Agreement differ from or are in conflict with the Company's
general employment policies or practices, this Agreement shall control.
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5. Compensation.
5.1 Base Compensation. Effective as of the Effective Date, the
Company shall pay to Employee base compensation at the annualized rate of one
hundred five thousand dollars ($105,000) through the end the Company's fiscal
year ending 1999 ("Fiscal 1999"), less taxes and other usual deductions. After
Fiscal 1999, Employee's base compensation shall be reviewed by the Board
annually, and the Board may, but is not required to, change such base
compensation. Employee's base compensation shall be payable in installments
consistent with the Company's normal payroll practices for its executive
employees.
5.2 Bonus Compensation. Effective as of the Effective Date, the
Company may pay to Employee bonus compensation ranging from 0% to 25% of
Employee's base compensation, pursuant to the provisions of Section 5.1 hereof,
based on Employee's performance of services. The criteria to be used by the
Company to determine any bonus compensation shall be established by the Company
at a later date.
5.3 Options for Common Stock Options Granted. On or around the
Effective Date and in connection with his employment with the Company, the
Company shall grant to Employee options for twenty thousand (20,000) shares of
Common Stock, par value $.01 per share, of The UniMark Group, Inc. pursuant to
The UniMark Group, Inc.'s 1994 Employee Stock Option Plan.
6. Benefits.
6.1 General. Except as otherwise expressly provided in this Section
6, for as long as Employee is employed by the Company, Employee shall be
entitled to all fringe benefits that the Company may make available from time to
time for all executive employees. Without limitation, such fringe benefits shall
include those available, if any, under any health and benefits package, life
insurance and disability programs, and participation in any plan or program
designed for all executive employees by the Company. Employee shall be entitled
to paid vacation in accordance with the Company's standard employment policies
and practices for executive employees, as the same may be in effect from time to
time. In addition, Employee shall be entitled to take all Company holidays as
the same may be designated by the Company from time to time for all employees.
Employee shall receive such additional fringe benefits, if any, as the Board
shall determine in its sole discretion from time to time.
6.2 Business Expenses. The Company shall reimburse Employee for all
ordinary and necessary expenses incurred by Employee, including disbursements,
in the performance of Employee's duties for the Company upon presentation within
the time period specified by the Company of an itemized statement of all
expenses incurred showing the date, nature, recipient, purpose and amount of
each item, subject to prior approval of the Company as required of executive
employees.
6.3 Termination of Benefits. All unvested benefits provided under
this Section 6 shall terminate concurrently with termination of Employee's
employment hereunder for any reason whatsoever. Nothing herein shall vest any
rights in any profit sharing or bonus plans, general
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expense or automotive reimbursements, and similar fringe benefits that the
Company may provide, if any, beyond the date on which Employee's employment is
terminated for any reason.
7. Termination of Employment.
7.1 Termination For Cause. Notwithstanding any other provision of
this Agreement, Employee's employment with the Company may be terminated for
cause at any time by the Company, upon reasonable notice to Employee. For the
purposes of this Agreement, "cause" shall mean (a) gross or habitual failure to
perform pursuant to the terms of this Agreement and such performance failure is
not corrected within thirty (30) days after written notice by the Company or the
Board to Employee thereof; or (b) misconduct, including, but not limited, to:
(i) conviction of a crime or entry of a plea of nolo contendere with regard to a
crime involving moral turpitude or dishonesty, (ii) any breach of the
Confidentiality Agreement, (iii) Employee's repeated insubordination or refusal
to comply with any reasonable request of the Board relating to the scope or
performance of Employee's duties, or (iv) conduct that in the good faith and
reasonable determination of the Board demonstrates Employee's gross unfitness to
serve.
7.2 Termination Without Cause. The Company may terminate Employee's
employment under this Agreement without cause at any time upon written notice to
Employee.
7.3 Termination for Death or Disability. Employment hereunder shall
automatically terminate upon Employee's death or disability. Disability, for
purposes of this Agreement, shall mean a physical or mental disability that
interferes with Employee's ability to perform duties pursuant to this Agreement
for a continuous period of six (6) months or more.
8. Post-Termination Compensation.
8.1 Termination By the Company for Cause. Notwithstanding any other
provision of this Agreement to the contrary, if Employee's employment is
terminated for cause pursuant to Section 7.1, the Company shall make no further
salary payments except those earned prior to the date of termination and shall
make no further bonus payments.
8.2 Termination By the Company Without Cause. If the Company
terminates this Agreement without cause as defined in Section 7.2 hereof, then
the Company shall pay Employee severance in one payment equal to Employee's base
compensation as determined pursuant to Section 5.1 for six (6) months. In
addition, subject to the Company's sole discretion, the Company shall pay for
reasonable outplacement costs. The Company shall make no further bonus payments.
8.3 Termination By Employee's Death or Disability. If employment
shall terminate by reason of Employee's death or disability, the Company shall
compensate Employee or Employee's estate pursuant to the Company's death and
disability insurance plan in place at the time of Employee's termination.
9. Noncompetition. Until two (2) years after termination of Employee's
employment with the Company, Employee shall not (a) either directly or
indirectly, carry on, engage in or have any interest in any business that
competes with the Company, excepting ownership by Employee of no more than one
percent (1%) of the publicly traded common stock of any corporation, (b) without
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the express written consent of the Company, accept employment with, or in any
other manner agree to provide, for compensation, services for any other person
or entity that competes directly or indirectly with the Company, or (c)
materially disrupt, damage, impair or interfere with the business of the
Company, whether by way of interfering with or soliciting its employees,
disrupting its relationship with customers, agents, representatives or vendors,
or otherwise.
10. Arbitration. Any and all disputes or controversies, whether of law
or fact of any nature whatsoever, arising from or respecting this Agreement
shall be decided by arbitration by the Judicial Arbitration Mediation Services,
Inc. ("JAMS") in accordance with the rules and regulations of JAMS, or by any
other body mutually agreed upon by the parties. Pre-arbitration discovery shall
be permitted at the request of any party under appropriate protection for
proprietary and confidential business information.
Before filing a demand for arbitration, a party must send the other
parties written notice identifying the matter in dispute and invoking the
procedures in this paragraph. Such written notice shall be sent promptly after
the party knew or reasonably should have known of an alleged violation of this
Agreement. Within fifteen (15) days after such written notice is given, one or
more principals of each party shall meet at a mutually agreeable location in
Dallas, Texas, or any other location mutually agreeable to the parties, for the
purpose of determining whether they can resolve the dispute themselves by
written agreement. If the parties fail to resolve the dispute by written
agreement within the fifteen-day (15-day) period, the complaining party may then
initiate the arbitration process by filing a demand with JAMS or such other body
as the parties may agree upon. Nothing in this paragraph shall prevent a party
from seeking temporary equitable relief from JAMS or such other body as the
parties may mutually agree upon during the fifteen-day (15-day) period if
necessary to prevent irreparable harm.
The arbitrators shall be selected as follows: the Company and
Employee shall each select one (1) independent, qualified arbitrator and the two
(2) arbitrators so selected shall select the third arbitrator. Any party may
disqualify any individual arbitrator who is a present or past employee, owner,
officer, director, relative or consultant to any party hereto or a competing
organization.
Arbitration shall take place in Dallas, Texas, or any other
location mutually agreeable to the parties. At the request of any party,
arbitration proceedings will be conducted in the utmost secrecy and, in such
case, all documents, testimony and records shall be received, heard and
maintained by the arbitrators in secrecy under seal, available for inspection
only by the Company or Employee, their respective attorneys, and their
respective experts, consultants or witnesses who shall agree, in advance and in
writing, to receive all such information confidentially and to maintain such
information in secrecy, and make no use of such information except for the
purposes of the arbitration, until such information shall become generally
known.
The arbitrators, who shall act by majority vote, shall be able to
decree any and all relief of an equitable nature, including but not limited to
such relief as a temporary restraining order, a temporary injunction, or a
permanent injunction, and shall also be able to award damages, with or without
an accounting and costs. The decree or judgment of an award rendered by the
arbitrators may be entered in any court having jurisdiction over the parties.
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Reasonable notice of the time and place of arbitration shall be
given to persons other than the parties, if such notice is required by law, in
which case such persons or their authorized representatives shall have the right
to attend or participate in the arbitration hearing in such manner as the law
shall require.
If any action is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs, and necessary disbursements in addition to any other relief to
which that party may be entitled.
11. Power and Authority. Each party executing this Agreement hereby
covenants, represents and warrants that he or she has full power and authority
to execute this Agreement, that no other consents or approvals of any other
third parties are required or necessary for this Agreement to be so binding
(except as otherwise herein expressly stated) and that this Agreement shall be
fully enforceable in accordance with its terms.
12. Heirs, Administrators and Successors. Except as otherwise provided
herein, this Agreement shall inure to the benefit of and be binding upon, the
heirs, administrators and successors of each of the parties hereto.
13. Nonassignability. The Company may assign the benefit of this
Agreement to any successor in interest that results from a merger,
reorganization or acquisition. Otherwise, no party to this Agreement may assign
any right hereunder or delegate any duty hereunder without the written consent
of the other party affected by such assignment or delegation.
14. No Oral Modification. This Agreement may only be changed or
modified and any provisions hereof may only be waived in or by a writing signed
by a party against whom enforcement of any waiver, change or modification is
sought.
15. Governing Law. This Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with, the laws of the State of
Texas.
16. Severability. If any portion of this Agreement shall be held
illegal, unenforceable, void or voidable by any court, each of the remaining
terms hereof shall nevertheless remain in full force and effect as a separate
contract.
17. Right of Setoff. Whenever the Company owes Employee any amounts of
money by virtue of this Agreement or otherwise, the Company shall be entitled to
setoff against any such sums due to Employee the amount of any claims that the
Company has against Employee. This right to setoff shall also apply to amounts
due on the date of termination.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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19. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties pertaining to the matters set forth herein, and
all prior agreements, understandings or representations are hereby terminated
and canceled in their entirely and are of no further force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
THE UNIMARK GROUP, INC.
A Texas Corporation
By:
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Soren Bjorn
President and Chief Executive Officer
UNIMARK FOODS, INC.
A Texas Corporation
By: /s/ Soren Bjorn
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Soren Bjorn
President and Chief Executive Officer
EMPLOYEE:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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