Exhibit 6.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
September 15, 1997, by and between Xxxxx Xxxxxxxx ("Executive") and Food
Extrusion, Inc., a Nevada corporation (the "Company") with its principle place
of business in the State of California.
WITNESETH:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to accept such employment, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the Company and the Executive agree
as follows:
Employment and Duties. Effective September 15, 1997 (the "Commencement Date"),
the Company agrees to employ Executive as Vice President and Chief Financial
Officer, and Executive agrees to serve the Company in such capacity. Executive
agrees to devote substantially all of her normal business time and efforts
during normal business hours to the performance of her duties under this
Agreement. Executive shall report to the Chief Executive Officer. Key
responsibilities of Executive include accounting, budgeting, planning,
management reporting, information systems, insurance, treasury, and financial
relations. Executive shall lead our efforts to register our stock, achieve
NASDAQ listing, and then cause us to meet all reporting requirements. Executive
shall work closely with the CEO in support of fund raising activities.
Compensation.
Base Salary: Withholding. The Company shall pay Executive a base salary of
$150,000 per year payable in accordance with the Company's standard payroll
practices, with such base compensation subject to increase from time to time
(but no less frequently than annually) in the good faith discretion of the Chief
Executive Officer and the Board of Directors. The parties shall comply with all
applicable withholding requirements in connection with all compensation payable
to Executive hereunder.
Annual Cash Bonus. The Company shall pay Executive an annual cash bonus on April
1, 1998, and annually thereafter, in such amounts as the Chief Executive Officer
and the Board of Directors may decide after good faith and reasonable
determination of Executive's efforts during the prior year and the results
thereof.
Stock Option. The parties acknowledge and agree that, as additional incentive to
Executive, Executive shall be granted, immediately upon execution of this
Agreement, an option (the "Option") to purchase 200,000 shares of Company common
stock ("Shares") at an exercise price equal to .667 times the closing price of
the Shares on the Commencement date of this Agreement (the "Option Price")
pursuant to an option agreement attached hereto as Exhibit A (the "Option
Agreement").
Incentive Plans. In addition to all other benefits and compensation provided by
this Agreement, Executive shall be eligible to participate in such of the
Company's equity, compensation and incentive plans as are generally available to
any of the management executives of the Company, including without limitation
any executive bonus or incentive compensation plans.
Vacation. Executive shall be entitled to such annual vacation time with full pay
as the Company may provide in its standard policies and practices for any other
management executives; provided, however, that in any event Executive shall be
entitled to a minimum of four weeks annual paid vacation time.
Other Benefits. Executive shall participate in and have the benefits of all
present and future holiday, paid leave, unpaid leave, life, accident,
disability, and health insurance plans, pension, profit-sharing and savings
plans, a $600 monthly car allowance and all other plans and benefits which the
Company now or in the future from time to time makes available to any of its
officer level executives with comparable positions reporting to the Chief
Executive Officer.
Business Expenses. The Company shall promptly reimburse Executive for all
appropriately documented, reasonable business expenses incurred by Executive.
Termination by the Company Without Cause. The Company may, by delivering sixty
(60) days' prior written notice to Executive, terminate Executive's employment
at any time and without Cause (as defined below) by: paying to Executive, no
later than the date of termination, a lump sum equal to:
Executive's base salary accrued through the date of termination; all accrued
vacation pay and accrued bonuses, if any, to the date of termination;
any bonus, if any, which would have been paid but for the termination, prorated
through the date of termination, based upon the Company's performance and in
accordance with the terms, provisions and conditions of any Company incentive
bonus plan in which Executive may be designated a participant;
if the date of termination occurs within one year of the Commencement Date, an
amount equal to 12 months of Executive's base salary at the rate in effect on
the date of notice of termination (the "Severance Amount"). The Severance Amount
shall be increased to 18 months of Executive's base salary as of the date of the
notice of termination if the date of termination is not less than one nor more
than two years after the Commencement Date, and the Severance Amount shall be
further increased to 24 months of such base salary if the date of termination is
more than two years after the Commencement Date;
providing, for a period of 12 months after the date of termination, at the
Company's expense, coverage to Executive under the Company's disability
insurance policy and to Executive and her dependents under the Company's health
plan; if any of the Company's health or disability insurance plans are not
continued or if Executive is not eligible for coverage thereunder because of the
termination of her employment, the Company shall pay the amount required for
Executive to obtain equivalent coverage.
Definition of Cause. For purposes of this Agreement, "Cause" means: (i)
misappropriating any funds or property of the Company- (ii) attempting to obtain
any material personal profit from any transaction in which the Executive has an
interest that is adverse to the material interests of the Company, other than a
transaction disclosed to and approved by the Company; (iii) the Executive's
willful and continuing refusal to perform her duties pursuant to this Agreement
after reasonable written notice; (iv) the commission by the Executive of any
material act of misconduct or dishonesty or any wrongful act which has a direct,
substantial and adverse effect on the Company's business or reputation; or (v)
conviction of a felony.
Payments Upon Termination for Good Reason.
Definition of "Good Reason". "Good Reason" shall mean:
the assignment of Executive to any duties inconsistent with, or any adverse
change in, Executive's titles or positions, duties, responsibilities or status
with the Company, or the removal of Executive from, or failure to reelect
Executive to, any of such positions; or any attempt to reduce, or a request by
the Company that Executive reduce, her base salary; or any other material breach
by the Company of this Agreement which is not cured within ten (10) days of
notice thereof by Executive to Company; or a Change in Control. A "Change in
Control" means the occurrence of any of the following:
any "person," as such term is used in Sections 13(d) and 14(d) of the Exchange
Act of 1934, as amended (the "Exchange Act") (other than the Company, its
existing shareholders, or Monsanto Corporation or its subsidiaries or
affiliates) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company (or a
successor to the Company) representing 35% or more of the combined voting power
of the then outstanding securities of the Company or such successor;
the dissolution of the Company or liquidation of more than 50% in value of the
Company or a sale of assets involving 50% or more in value of the assets of the
Company, (ii) any merger or reorganization of the Company whether or not another
entity is the survivor, (iii) a transaction (other than the initial public
offering of Company's shares) pursuant to which the holders, as a group, of all
of the shares of the Company outstanding before the transaction, hold, as a
group, less than 50% of the combined voting power of the Company or any
successor company outstanding after the transaction, or (iv) any other event or
series of events which the Board determines, in its discretion, would materially
alter the structure of the Company or its ownership. Termination. Executive may
terminate her employment for Good Reason at any time upon providing written
notice of termination to the Company. In the event of termination of Executive's
employment for Good Reason, the Company shall pay Executive all of the
consideration the Company would be obliged to pay to Executive under Section 4
of this Agreement if Executive were terminated without Cause.
Voluntary Termination by Executive. In addition to the reasons set forth in
Section 6, Executive may terminate this Agreement at any time for any reason or
no reason upon delivering thirty (30) days' prior written notice to the Company.
No later than the date of termination, the Company shall pay Executive a lump
sum equal to her accrued base salary through the date of termination, and all
accrued vacation pay and bonuses.
Indemnification. As a director, officer and agent of the Company, Executive
shall be fully indemnified by the Company to the fullest extent permitted by
California law. To implement this provision, Company shall execute and deliver
to Executive its standard form of indemnification agreement for officers and
directors, and Executive shall thereafter be entitled to the benefits of any
subsequent amendments thereto made for any management executives. In addition,
Company agrees to maintain during the term of Executive's employment, a
directors and officers insurance policy with customary policy limits and
deductible, under which Executive is an insured.
Confidential Information. Executive shall execute and deliver to the Company any
standard and reasonable confidentiality and proprietary rights agreement which
the Company reasonably requires of all of its management executives.
Assignment. The rights and obligations of the parties under this Agreement shall
be binding upon and inure to the benefit of their respective successors,
assigns, executors, administrators and heirs, provided, however, that Executive
may not delegate any of Executive's duties under this Agreement.
Miscellaneous.
Complete Agreement. This Agreement constitutes the entire agreement between the
parties and cancels and supersedes all other prior or contemporaneous agreements
between the parties which relate to the subject matter contained in this
Agreement.
Modification, Amendment, Waiver. No modification or amendment of any provisions
of this Agreement shall be effective unless approved in writing by both parties.
The failure at any time to enforce any of the provisions of this Agreement shall
in no way be construed as a waiver of such provisions and shall not affect the
right of either party thereafter to enforce each and every provision hereof in
accordance with its terms.
Governing Law. This Agreement shall be construed in accordance with the laws of
the State of California.
Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
Attorneys' Fees. In the event of dispute relating to this Agreement (including
enforcing judgments and appeals), the prevailing party shall be entitled to
reimbursement of its reasonable attorneys' fees and costs of suit in addition to
such other relief as may be granted.
Notices. All notices and other communications under this Agreement shall be in
writing and shall be given in person or by telegraph, telefax or first class
mail, certified or registered with return receipt requested, and shall be deemed
to have been duly given when delivered personally or three days after mailing or
one day after transmission of a telegram or telefax, as the case may be, to the
respective persons named below:
If to the Company: Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. XxXxxx, Chairman
If to the Executive: Xxxxx Xxxxxxxx
0000 Xxx Xxxxxx
Xxxxxx Xxxxxxx, XX 00000
With a copy to: Xxxxxx Xxxxxx, Esq
Diepenbrock, Wulff, Plant & Xxxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
COMPANY: Food Extrusion, Inc., a Nevada corporation
By: /s/ Xxxxx X. Xxxxx
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Its: Chief Executive Officer
EXECUTIVE: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
