EXHIBIT 10.15
AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
HORIZON ORGANIC HOLDING CORPORATION, a Delaware corporation ("HOH" or the
"Company") agrees with XXXX XXXXXXX ("Xx. Xxxxxxx") as follows ("Employment
Agreement") effective the 1st day of January, 1998.
1. PURPOSE. Xx. Xxxxxxx is currently the Vice-President of Marketing of
HOH. Xx. Xxxxxxx and HOH (as successor in interest to Horizon Organic Dairy,
Inc.) are parties to an Employment Agreement dated July 1, 1996. The parties
desire to amend and replace the terms of Xx. Xxxxxxx'x employment by HOH in
accordance with the terms and conditions set forth herein.
2. EMPLOYMENT. HOH hereby employs Xx. Xxxxxxx, and Xx. Xxxxxxx agrees to
be employed, as Vice-President of Marketing of HOH. HOH may from time to time
designate other or additional titles for Xx. Xxxxxxx as deemed appropriate by
the HOH Board of Directors, but HOH and Xx. Xxxxxxx agree that at all times
during the term of this Employment Agreement Xx. Xxxxxxx will be employed as the
Vice President of Marketing of HOH. In addition, the Company shall use its best
efforts to cause Xx. Xxxxxxx to be elected to the Company's Board of Directors
so long as this Employment Agreement or any extension hereof remains in effect.
3. DUTIES. During the term hereof, Xx. Xxxxxxx will devote substantially
all of his full time and effort to the business of HOH. Xx. Xxxxxxx shall have
the right to devote reasonable time to the management of his personal
investments and activities, participation in trade associations or other
organizations seeking to advance the cause of natural and/or organic foods, and
support of community activities; provided, however, that while employed with HOH
Xx. Xxxxxxx shall not be employed by any other company, individual or entity on
a full or part-time basis nor shall he serve as an independent contractor or a
paid consultant. The parties intend that Xx. Xxxxxxx'x initial duties hereunder
shall primarily involve duties of the type normally associated with a senior
managerial position in an organization of the size and type of HOH. HOH may
modify, reduce and/or eliminate Xx. Xxxxxxx'x duties and objectives at its
reasonable discretion from time to time, provided that at no time will Xx.
Xxxxxxx be required to perform duties or to meet objectives which are
inconsistent with or inappropriate for a member of senior management of HOH.
4. TERM. Unless otherwise terminated as set forth in paragraph 9 below,
the parties agree that this Employment Agreement shall continue in effect for a
period of 24 months from the Effective Date ("Employment Period"). Employment
with HOH shall terminate 24 months from the Effective Date unless otherwise
renewed. The Company and Xx. Xxxxxxx each acknowledge that Xx. Xxxxxxx intends
to retire at the end of the Employment Period in 1999.
5. BASE COMPENSATION. Xx. Xxxxxxx shall receive compensation from HOH as
follows:
(a) Starting on the date hereof, a base salary at an annual rate of
$120,000; and
(b) Annual increases in base compensation shall be established by and
at the sole discretion of the Compensation Committee appointed by the Board of
Directors of HOH.
6. INCENTIVE COMPENSATION. Xx. Xxxxxxx shall be entitled to receive
incentive compensation in accordance with an incentive plan established by the
Compensation Committee or the HOH Board of Directors. Incentive compensation
will be based on both individual and corporate factors, but the factors
applicable to Xx. Xxxxxxx will be consistent with those applicable to other
members of senior management. The corporate factors will typically be linked to
net operating income and gross sales. The maximum amount which may be awarded
pursuant to the incentive plan will be an amount equal to 60% of base salary.
7. BENEFITS. Xx. Xxxxxxx will receive four weeks of paid vacation during
each year in which this Agreement remains in effect, plus such public holidays
as are generally recognized by businesses in Colorado, not to exceed 10 days per
year. Up to two weeks of unused vacation time may be carried over to any
subsequent year. Xx. Xxxxxxx will be entitled to participate in any benefit
plans provided to employees of HOH, including health and dental insurance. HOH
shall also provide to Xx. Xxxxxxx life insurance in the minimum amount of
$100,000, disability insurance providing at least 60% of Xx. Xxxxxxx'x covered
base salary or $6,000 per month (whichever amount is less), provided that Xx.
Xxxxxxx qualifies for such insurance, and reimbursement of reasonable business
expenses in such manner as the Board of Directors of HOH shall approve from time
to time at its sole discretion. All benefits except those provided by law, shall
cease at the termination of this Employment Agreement.
8. STOCK RIGHTS. HOH agrees to grant to Xx. Xxxxxxx the following stock
option rights under HOH's Incentive Stock Option plan dated October 25, 1995.
(a) Effective upon execution of this Employment Agreement, Xx. Xxxxxxx
shall be granted an option to purchase 12,500 shares of HOH common stock for a
purchase price of $6.50 per share, payable in cash at the time of issuance. Such
option shall terminate if not exercised by January 10, 2003.
(b) All rights to acquire shares hereunder are granted as incentive
stock options and in accordance with such other terms and conditions as HOH may
reasonably establish, including requirements that Xx. Xxxxxxx execute and comply
with all standard agreements of HOH, including an Incentive Stock Option
Agreement, Subscription Agreement and Shareholders Agreement from time to time
in effect with respect to HOH's common shares. Xx. Xxxxxxx shall be solely
responsible for the payment of any individual income taxes which accrue as a
result of the issuance of such options. All options shall lapse, if not
previously exercised, three months after termination of Xx. Xxxxxxx'x employment
hereunder.
9. TERMINATION OF EMPLOYMENT. Xx. Xxxxxxx and HOH each acknowledge that
either Party has the right to terminate Xx. Xxxxxxx'x employment with HOH
pursuant to the following:
(a) TERMINATION BY THE COMPANY FOR CAUSE. HOH will have the right to
terminate Xx. Xxxxxxx 's employment with HOH at any time for "cause". "Cause"
for termination will mean only: (i) Xx. Xxxxxxx has committed any material act
of embezzlement,
2.
fraud and/or is convicted of a felony; (ii) Xx. Xxxxxxx engages in direct unfair
competition with HOH and, in any material respect, willfully breaches his
obligations under this Agreement; (iii) Xx. Xxxxxxx causes material damage to
HOH through intentional misconduct or gross neglect of the duties customary to
his office. No activities or inactivities covered by items (ii) and (iii) will
be deemed to be "cause" unless HOH has notified Xx. Xxxxxxx of such activity or
inactivity in writing and Xx. Xxxxxxx has failed to cure the same within 15
days. In the event Xx. Xxxxxxx is terminated for cause he will not be entitled
to Severance Pay (as defined below), pay in lieu of notice or any other such
compensation set forth in paragraphs 5-8 herein, but he will be entitled to all
compensation, benefits and unreimbursed expenses accrued through the date of
termination.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. HOH will have the right
to terminate Xx. Xxxxxxx'x employment with HOH at any time without cause. In the
event Xx. Xxxxxxx is terminated without cause, and upon the execution of a
release by Xx. Xxxxxxx, releasing all claims arising under this Employment
Agreement against HOH as of the date Xx. Xxxxxxx signs such release, HOH shall
pay Xx. Xxxxxxx the following "SEVERANCE PAY": (i) Xx. Xxxxxxx'x then applicable
base salary for a period of the longer of (A) 12 months after the termination
without cause date or (B) the remainder of the Employment Period, and (ii)
substantially equivalent health, medical, life, disability and other benefits to
the extent permitted by HOH insurance policies or plans, for the same 12 month
period. Severance Pay will further include the payment of any incentive bonuses
which become due under paragraph 6, for the year in which termination occurs,
prorated for the portion of the year during which Xx. Xxxxxxx continued to be
employed by HOH. Such prorated bonus, if any, shall be paid at the same time as
bonuses are paid to other employees who participate in the incentive bonus plan.
(c) VOLUNTARY TERMINATION BY XX. XXXXXXX. Xx. Xxxxxxx may voluntarily
terminate his employment with HOH at any time, after which no further
compensation will be paid to Xx. Xxxxxxx. To permit HOH to make arrangements to
fill the vacancy created by Xx. Xxxxxxx'x departure, Xx. Xxxxxxx agrees to give
HOH 30 days advance notice of any intended resignation. In the event Xx. Xxxxxxx
voluntarily terminates his employment, he will not be entitled to Severance Pay,
pay in lieu of notice or any other such compensation set forth in paragraphs 5-8
herein, but he will be entitled to all compensation, benefits and unreimbursed
expenses accrued through the date of termination.
(d) TERMINATION BY XX. XXXXXXX WITH CAUSE. Xx. Xxxxxxx will have the
right to terminate his employment with HOH at any time for "cause". "Cause" for
termination will mean only a material breach of this Agreement by HOH which
breach is not cured by HOH within 15 days after receipt of written notice
thereof from Xx. Xxxxxxx. In the event Xx. Xxxxxxx terminates his agreement for
"cause," the non-competition obligations of this Agreement will terminate and
Xx. Xxxxxxx will be entitled to "SEVERANCE PAY" as defined in 9(b) above.
(e) RETIREMENT. Xx. Xxxxxxx'x employment with HOH will terminate at
the end of the Employment Period as a result of Xx. Xxxxxxx'x retirement. At the
discretion of HOH and Xx. Xxxxxxx, HOH may continue to engage Xx. Xxxxxxx as a
consultant on terms to be discussed and mutually agreed to by the parties.
3.
10. NON-COMPETITION OBLIGATIONS. In consideration of his employment by
HOH and the Severance Pay to be paid to Xx. Xxxxxxx as further set forth in
paragraph 9 above, Xx. Xxxxxxx agrees that during his employment, and for a
period of 24 months after the termination or expiration of his employment with
HOH, he will not, without first obtaining the express written consent of HOH,
own more than 5% of the outstanding stock of a publicly-traded Competitive
Company (as defined below) or any stock of a privately held Competitive Company,
or participate in the financing, operation, management or control of, any
Competitive Company. A "Competitive Company" is a person, firm, corporation or
business located in the United States that is primarily engaged in the
production or wholesale distribution of organic dairy products sold by HOH, or
which HOH has express plans to sell as of the termination or expiration of Xx.
Xxxxxxx'x employment with HOH. Xx. Xxxxxxx further agrees that he will not
induce any employee of HOH to leave the employ of HOH for a period of twenty-
four months after the termination or expiration of his employment with HOH. This
paragraph 10 shall survive the termination or expiration of this Employment
Agreement for any reason.
11. ENFORCEMENT. HOH and Xx. Xxxxxxx agree that any violation or
threatened violation of the terms of this Employment Agreement could cause
immediate and irreparable harm to HOH for which monetary damages would be
inadequate and difficult to ascertain. The parties therefore agree that upon the
existence of any such violation or threatened violation, provided that HOH has
paid and continues to pay Xx. Xxxxxxx his salary, bonus and benefits as required
hereunder, and to honor Xx. Xxxxxxx'x stock option rights if any, HOH may obtain
a temporary restraining order, preliminary injunction, or other appropriate form
of equitable relief from any court of competent jurisdiction. Such relief shall
be in addition to and not substitution for any monetary damages to which HOH
might otherwise be entitled.
12. CONTROLLING AGREEMENT. This Employment Agreement supersedes and
replaces in its entirety all prior agreements and understandings between HOH and
Xx. Xxxxxxx relating to Xx. Xxxxxxx'x employment by HOH, including without
limitation the Executive Employment Agreement between the parties dated July 1,
1996.
13. MISCELLANEOUS.
(a) The rights and duties of the parties shall not be assignable by
either party, except that HOH may assign its rights but shall continue to
guarantee its obligations, to any corporation or other business entity which is
controlled by HOH, which controls HOH, or which is a successor by purchase,
merger or otherwise to HOH. The heirs, successors, personal representatives and
assigns of Xx. Xxxxxxx shall have the right to collect any accrued benefits due
Xx. Xxxxxxx hereunder.
(b) This Employment Agreement and all provisions hereof shall bind
and inure to the benefit of HOH, Xx. Xxxxxxx, and their respective personal
representatives, heirs, successors, and permitted assigns, but Xx. Xxxxxxx is
not entitled to assign his rights and obligations hereunder.
(c) This Agreement will be deemed to have been entered into, and it
will be construed and enforced in accordance with the laws of the State of
Colorado as applied to contracts made and to be performed entirely within
Colorado.
4.
(d) Any action to enforce or requiring interpretation of this
Agreement must be brought in a forum located within the State of Colorado.
(e) In the event that any provision of this Employment Agreement shall
be held to be invalid, illegal, or unenforceable, such provision may be
severed, modified or enforced to the extent possible, and such invalidity,
illegality, or unenforceability shall not affect the remainder of this
Employment Agreement, unless such severance would defeat the fundamental
purposes of this Employment Agreement.
(f) This Employment Agreement may be amended or modified only by
written agreement subscribed to by both of the parties hereto.
(g) The waiver by either party of a breach of any provision of this
Employment Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach of the same provision or any other
provision of this Employment Agreement.
(h) The section headings contained herein are for reference purposes
only and will in no way affect the meaning or interpretation of this
Agreement
(i) All notices which are required or may be given under this
Employment Agreement shall be given by certified mail, return receipt
requested, registered mail, or personal service to the following addresses:
(i) If intended for HOH:
Horizon Organic Holdings Corporation
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
(ii) If intended for Xx. Xxxxxxx:
c/o Horizon Organic Dairy, Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
A party may direct from time to time that notices be sent to a different
address by giving the other party notice in writing of the new address.
(j) To ensure rapid and economical resolution of any and all disputes
directly or indirectly arising out of or in any way connected with Xx. Xxxxxxx'x
employment with HOH or the termination of that employment or this Employment
Agreement, with the sole exception of disputes which arise under Xx. Xxxxxxx'x
obligations pursuant to paragraph 10 above
5.
(collectively, the "Arbitrable Claims"), HOH and Xx. Xxxxxxx each agree that any
and all such disputes, whether of law or fact of any nature whatsoever, will be
resolved by final and binding arbitration under the then existing American
Arbitration Association ("AAA") arbitration procedures. The Arbitrable Claims
will include, but will not be limited to: any and all such claims related to
salary, bonuses, commissions, stock, stock options, or any other ownership
interests in HOH, vacation pay, fringe benefits, expense reimbursements,
severance benefits, or any other form of compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to,
the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination
in Employment Act, as amended ("ADEA"); the federal Americans with Disabilities
Act of 1990; the Colorado Anti Discrimination Act of 1957, as amended; the Wage
Claim Act, C.R.S. (S)(S)8-4-101, et seq., tort law; contract law; wrongful
discharge; discrimination; fraud; defamation; and emotional distress; and breach
of the implied covenant of good faith and fair dealing. Xx. Xxxxxxx and HOH
acknowledge and agree that any and all rights they may otherwise have to resolve
such Arbitrable Claims by jury trial, by a court, or in any forum other than the
AAA, are hereby expressly waived. The arbitrators shall be authorized, in
addition to any other action they may take, to award reasonable attorneys' fees
and costs of arbitration in favor of the prevailing party.
Executed effective the day and year first set forth above.
HORIZON ORGANIC HOLDINGS CORPORATION XXXX XXXXXXX
By:/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxx Xxxxxxx
------------------------------------- -------------------------------
Title: Chairman
----------------------------------
Date: 4/22/98 Date: April 21, 1998
----------------------------------- --------------------------
6.
