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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated 10/30/96, hereinafter referred to as the
"Agreement", is by and between Legacy Brands, Inc., hereinafter referred to as
the "Employer", and Xxxxxx Xxxxxxxxxxx, hereinafter referred to as the
"Employee".
ARTICLE I
Term
1.1 Term of Employment. The Employer hereby employs the Employee and the
Employee hereby accepts employment as Secretary and Vice President of Operations
of the Employer for a period of three (3) years (the "Term") beginning on
September 1, 1995 (the "effective date"), and which will be automatically
extended on the anniversary date hereof, for an additional twelve (12) month
period, unless canceled by either party as described herein.
1.2 Notice of Cancellation. Following the expiration of the Term hereof,
the automatic extension of this Agreement may be canceled by either party by
giving written notice to the other party not later than 60 days before the
anniversary date hereof, that the Agreement shall not be extended ("Notice of
Cancellation"). In the event that either party cancels the automatic extension
of this Agreement, such failure to extend the Agreement shall be considered a
termination of the Employee as described in Article 6, herein, and such
termination shall be subject to the termination provisions provided therein.
This Agreement may be terminated earlier as hereinafter provided.
ARTICLE 2
Duties of Employee
2.1 Duties of Employee. As Secretary and Vice President of Operations,
Employee shall be responsible for all matters relating to the implementation of
all activities with brokers, co-packers, and packaging companies. The Employee
shall also work closely with the person in charge of marketing to develop and
implement new products, markets, sales projections, marketing expenditures, and
package designs. Other duties shall include, but are not limited to, working
towards Employer's future success, and participating in negotiations of new
ventures and public financing of the Employer. Notwithstanding the preceding
provisions of this Article 2.1, the Chief Executive Officer ("CEO") shall have
the right to reassign the Employee to such duties as he deems fit and proper in
his sole discretion during the term hereof so long as such reassignment is
consistent with the Employee's general responsibilities under this Agreement.
Such reassignment shall not constitute termination.
2.2 Best Efforts of Employee. Employee agrees that he will at all times
faithfully, industriously, and to the best of his ability, experience, and
talents, perform all of the duties that may be required of and from him pursuant
to the express and implicit terms hereof to the reasonable satisfaction of
Employer. Such duties shall be rendered at the home office of Employer, and at
such
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XXXXXX XXXXXXXXXXX
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other place or places as Employer shall in good faith require or as the
interest, needs, business or opportunity of Employer shall require.
2.3 Engaging in Other Employment. The Employee shall devote his
productive time, ability, and attention to the business of the Employer during
the term of this Agreement. The Employee shall not, during his employment:
(i) within any jurisdiction or marketing area in which the
Employer or any of its subsidiaries or affiliates is doing business or is
qualified to do business, directly or indirectly own, manage, operate, control,
be employed by or participate in ownership, management operation or control of
or be connected in any manner with any business engaged in and in competition
with the business conducted by Employer or any of its subsidiaries or
affiliates. For these purposes, ownership of securities of not in excess of one
(1%) percent of any class of securities of a public company shall not be
considered to be competition with Employer or any of its subsidiaries or
affiliates; or
(ii) solicit for himself or any person other than the Employer or
any of its subsidiaries, the business of any company which is a customer or
client of the Employer, or any of its subsidiaries, or was a customer or client
of Employer within two (2) years prior to the date of this Agreement; or
(iii) persuade or attempt to persuade any employee of the
Employer or any of its subsidiaries to leave the Employer's or subsidiary's
employ or to become employed by any person other than the Employer or
subsidiary.
2.4 Regulations. The Employee agrees to comply with all federal, state
and local laws, ordinances and regulations in the conduct of his business on
behalf of Employer.
If and when licenses or other registrations become required by
law or pertinent regulatory bodies or agencies, the Employee shall undertake to
make any necessary applications or do what may be required to secure such
licenses or registrations.
ARTICLE 3
Duties of Employer
3.1 Payment of Compensation and Provision of Benefits. During the term
hereof, Employer agrees to pay all compensation due to Employee on at least a
monthly basis as provided in Article 4, as well as to provide benefits,
allowances and vacation as set forth therein.
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3.2 Advance Costs of Certain Litigation. During the term hereof and
subsequent thereto, Employer agrees to advance and incur any litigation costs
incurred by Employee in connection with any act or omission under this
Agreement, or with any product liability, tampering, officer or director
litigation brought by any investor or non-party to this Agreement. In exchange
for the Employer's promise to advance any such costs, the Employee agrees to
cooperate fully in the investigation and defense of any such claims.
ARTICLE 4
Compensation
4.1 Basic Compensation. As compensation for services rendered under this
Agreement, the Employee shall be entitled to receive from the Employer a minimum
annual salary ("Annual Base Salary"), payable to Employee bi-monthly on the 1st
and 15th days of each month of the term hereof, as follows:
For the
Period: Amount
------- ------
1995-1996 $ 80,000;
1996-1997 $ 90,000;
1997-1998 $ 100,000;
The amount of Employee's actual compensation, including Annual
Base Salary and benefits, may be increased by the Chief Executive Officer
("CEO") of Employer at any time above the minimum Annual Base Salary described
herein, and such increase shall not effect the operation or validity of any
other provision of this Agreement.
4.2 Bonus. The Employee is entitled to the payment of a bonus calculated
on a target profit amount for each year. The target profit amount is the amount
approved by the Chief Executive Officer ("CEO") and shall be calculated based
upon a formula comprised of earnings from operations before interest, taxes,
depreciation and amortization. If, in any year hereof, the Employer attains 80%
to 99% of the target profit amount, the Employee is entitled to a bonus of 25%
of his Annual Base Salary for the year, minus one percentage point for each
percentage point the target profit amount is less than 100%. If the target
profit amount is met exactly, the bonus shall be 30% of the Annual Base Salary.
If the target profit amount is exceeded by 1% to 10%, the bonus shall be 25%
plus 2% of the Annual Base Salary for each percentage point over 100%. If the
target profit amount is exceeded by 111% up to a ceiling of 150%, the bonus
shall be 45% of the Annual Base Salary plus 3% of the Annual Base Salary for
each percentage point over 110%. Such bonus shall be calculated based upon the
Employer's fiscal year. Bonuses will be paid in three
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XXXXXX XXXXXXXXXXX
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installments, the first payment representing 40% of the total bonus shall be
made no later than seven (7) months after the beginning of the Employer's fiscal
year and will be calculated using Employer's unaudited budgeted profits, the
second payment representing another 40% of the bonus shall be made no later than
thirteen (13) months after the beginning of the Employer's fiscal year and
shall be calculated using the Employer's unaudited actual financial figures, and
the third payment representing, the final 20% shall be made no sooner than the
date upon which the Employer receives audited financial statements. Any
adjustments will be made at the time of the third payment. Any overpayments will
be offset in the first and subsequent bonus payment(s) in the following and
subsequent fiscal year(s) until repaid. Any retroactive change in accounting
principles which might affect any prior year(s) profit shall not give rise to
any claim by the Employer against the Employee for any bonus payment.
Furthermore, any change in accounting principles which was not contemplated in
calculating the budgeted or actual profit shall not apply to the calculation of
the Employee's bonus.
4.3 Employee Benefits, The Employer shall use its best efforts to
procure and maintain a group health insurance policy which shall provide the
customary benefits to the Employee, as well as any other benefits approved by
the CEO. If and when such benefits are provided to the Employee, the Employer
agrees to maintain such benefits for the remaining term of this Agreement.
4.4 Expenses. During the Term, Employee shall be reimbursed for his
reasonable travel, entertainment, business meeting and similar expenditures for
the benefit of Employer, but only in accordance with the policies of Employer as
adopted by the Board from time to time. With respect to any expenses which are
reimbursed by Employer to Employee, Employee shall account to Employer in
sufficient detail to allow Employer to claim an income tax deduction for such
paid item, if such item is deductible.
4.5 Restricted Stock Award: The Employee shall be offered, pursuant to a
Restricted Stock Purchase Agreement, the opportunity to purchase shares of
Common Stock of the Employer (the "Shares"). The Employee's right to receive the
full amount of Shares owed under the Restricted Stock Purchase Agreement shall
be contingent upon the Employee's continued employment with the Employer. In the
event of a change in control resulting in a merger or acquisition, the Employee
shall be granted securities of the new entity and adjusted to assure no dilution
of the Employee's ownership in the Employer.
4.6 Vesting. The Employee is entitled to receive annually, but based on
a quarterly calculation a certificate of vesting from the Employer representing
the completion of twelve months of service under this Agreement calculated from
September 1, 1995, in the form attached hereto as Exhibit A, which the Employee
shall deliver to the Pledge Holder along with certain other documents pursuant
to the terms of the restricted Stock Purchase Agreement in order to transfer,
assign, or convey Shares purchased under the Restricted Stock Purchase
Agreement. Upon the
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XXXXXX XXXXXXXXXXX
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expiration of one year from September 1, 1995 and delivery of certificate of
vesting together with other required documents, the Employee shall have the
right to dispose of one-third of the Shares and shall be obligated to pay, or
otherwise satisfy, one-third of the principal amount of the Promissory Note plus
interest, if any, pursuant to the Restricted Stock Purchase Agreement and
related Promissory Note. Such right to dispose of a percentage of Shares and
corresponding duty to pay, or otherwise satisfy, amounts owed shall increase to
two-thirds on September 1, 1997. The Employee shall not have the right to
dispose of all of the Shares or the obligation to pay, or otherwise satisfy, the
full principal amount and interest thereupon under the Promissory Note until
September 1, 1998.
Once any portion of the Shares has vested and corresponding payments
have been made pursuant to this paragraph, or under the Promissory Note, or the
debt has been forgiven, such Shares are not subject to repurchase by the
Employer. In the event the Employee is terminated without cause pursuant to
Article 6.4, or upon the sale of the business or change in CEO vesting will be
determined according to Article 6.5. Any corresponding payments under the
Promissory Note that have not been made will be due thirty days from the date of
such termination. Failure to pay within thirty days will subject the Shares to
repurchase by the Employer.
4.7 Vacation. Employee shall be entitled to vacation of up to ten (10)
calendar days per year, for the first year of this agreement and fifteen (15)
calendar days per year for years two and three. Such vacation time may accrue if
not taken. Employee shall be entitled to observe all nationally observed
holidays and to take and accrue such vacation time and sick days as determined
by Employer's policy on such accruals for all employees.
ARTICLE 5
Confidentialily
5.1 Confidentiality. During the course of employment, Employee shall
become aware of certain methods, practices and procedures with which Employer
conducts its business, including but not limited to: any trade secrets,
confidential information, knowledge, data or other information of Employer
relating to products, processes, know how, designs, customer lists, business
plans, marketing plans and strategies, and pricing strategies or any subject
matter pertaining to any business of Employer or any of its clients, licensees
or affiliates, all of which Employer and Employee agree are proprietary
information and as such are trade secrets. Employee agrees to keep confidential,
except as Employer may otherwise consent, and not to disclose, or make any use
of except for the benefit of Employer, at any time either during or subsequent
to his employment, any said trade secrets.
5.2 Return of Confidential Material. In the event of Employee's
termination of
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EMPLOYMENT AGREEMENT
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XXXXXX XXXXXXXXXXX
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employment with Employer, for any reason whatsoever, Employee agrees to promptly
surrender and deliver to Employer all records, materials, equipment, drawings
and data of any nature pertaining to any invention or confidential information
of Employer or to his employment. Employee agrees not take with him any
description containing or pertaining to any confidential information, knowledge
or data of Employer which he may produce or obtain during the course of his
employment.
ARTICLE 6
Termination
and
Severance Pay
6.1 Termination by Death or Disability. This Agreement terminates upon
the death or disability of the Employee. Compensation provided in the case of
disability is to be determined as if the Employee had been terminated for cause
per 6.3 below. All compensation ends on the date of the Employee's death.
6.2 Termination by Employee. If the Employee terminates this Agreement
with or without cause, he shall forfeit his compensation and bonuses remaining
in this Agreement, and shall forfeit that portion of his restricted stock award
as provided elsewhere in this Agreement. Any termination by Employee shall be
with 60 days notice to the Employer.
6.3 Termination by Employer for Cause. For purposes of this Agreement,
an event or occurrence constituting "Cause" shall mean, as determined by
Employer:
6.3.1 Employee's willful failure or refusal after notice
thereof, to perform specific directives of the Chief Executive
Officer of Employer, when such directives are consistent with
the scope and nature of Employees' duties and responsibilities
as set forth in clause 2.1. hereof; or
6.3.2 Dishonesty of Employee affecting Employer; or
6.3.3 Drunkenness or use of drugs which interferes with the
performance of Employee's duties and responsibilities under this
Agreement; or
6.3.4 Any gross or willful conduct of Employee resulting in
substantial loss to Employer, substantial damage to Employer's
reputation, or theft or defalcation from Employer; or
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6.3.5 Gross incompetence on the part of the Employee in the
performance of the duties and responsibilities under this
Agreement; or
6.3.6 Any material breach (not covered by any of subclauses
6.3.1 through 6.3.5) of Article 2 or Article 5 of this Agreement
if such breach is not cured within 10 days after written notice
thereof to Employee by Employer.
In the event the Employee is terminated pursuant to this Article
6.3, the Employer shall have the option to compensate the Employee pursuant to
this Agreement for a period of up to two months from the date of such
termination. If the Employer decides to compensate the Employee pursuant to this
Article, the Employee shall have the following duties and obligations for the
period so compensated: i) to cooperate with the Employer by providing consulting
services on site at any site reasonably requested by the Employer, ii) to not
engage in a course of conduct which competes, directly or indirectly, with the
business of the Employer, iii) to keep confidential all of Employer's trade
secrets, confidential information, knowledge or data, and iv) return all
confidential material to the Employer.
6.4 Termination of Employee Without Cause. In the event the Employee is
terminated for any reason other than for cause, the Employee shall be entitled
to the compensation and bonuses he would have been paid had the Employer not
terminated the Employee and the Employee had continued to provide services
hereunder for as long as the CEO shall deem proper which in no event shall be
less than two months from the date of termination. The Employee shall continue
to be bound by Article 5 hereof.
If the Employer compensates the Employee pursuant to this Article
6.4, the Employee shall have the following duties and obligations for the period
so compensated: i) to cooperate with the Employer by providing consulting
services on site at any site reasonably requested by the Employer, ii) to not
engage in a course of conduct which competes, directly or indirectly, with the
business of the Employer, iii) to keep confidential all of Employer's trade
secrets, confidential information, knowledge or data, and iv) return all
confidential material to the Employer.
6.5 Termination of Employee Upon Sale of Business; Change in CEO. This
Agreement shall survive a merger, consolidation or other business combination,
or change in the present CEO, Xxxxxx X. Xxxx, for the longer of the remaining
term of this Agreement or one year. In the event of a merger, consolidation or
other business combination, or change in CEO, the Employer shall
6.5.1 Pay the Employee salary under the terms of this Agreement
and may choose, at Employer's sole discretion, to utilize the
services of the Employee on a consultant or independent
contractor basis;
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XXXXXX XXXXXXXXXXX
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6.5.2 Waive the vesting requirement as to any unvested Shares
such that the Employee will have the right to dispose of all of
the Shares contemplated by and pursuant to the Restricted Stock
Purchase Agreement; and
6.5.3 Provide the Employee with an Executive Placement Package.
6.6 Effect of Termination on other Employees. In the event of
termination, the Employee shall not for a period of at least three (3) years
after termination persuade or attempt to persuade any employee of the Employer
or any of its subsidiaries to leave the Employer's or subsidiary's employ or to
become employed by any person other than the Employer or subsidiary.
6.7 Effect of Termination on Article 5. In the event of the termination
of this Agreement, Article 5.1 and 5.2 will survive termination of this
Agreement.
6.8 Pre-Termination Election. In the event the Employee or the Employer
does not elect to renew this Agreement for a new term, for the last 12 months
of the term hereof, the Employee and the Employer may mutually elect to convert
the Employee's duties and title under this Agreement to the duties and title of
consultant. Upon the expiration of this Agreement, the Employee may continue to
utilize his services as a consultant.
6.9 Administrative Leave. CEO shall have the right to place any Employee
on Administrative Leave for a period of up to four weeks, which shall be paid or
unpaid at the sole discretion of the CEO, during which time the Employee shall
not discharge his duties to the Employer. In the event the Employee is placed on
unpaid leave pursuant to this Article 6.9, then at the expiration of thirty days
from the date of effectiveness of such leave CEO shall make a determination as
to Employee's status resulting in either termination or continued employment.
ARTICLE 7
General Provisions
7.1 Succession. This Agreement shall inure to the benefit of and shall
be binding upon Employer, its successors and assigns. The obligations and duties
of Employee hereunder shall be personal and not assignable.
7.2 Notices. Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Notices
delivered personally shall be deemed communicated as of actual receipt; mailed
notices shall be deemed communicated as of five (5) days after mailing. Mailed
notices shall be addressed to the parties as follows, but each party may change
his address by written notice in accordance with this paragraph:
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LEGACY BRANDS, INC. AND
XXXXXX XXXXXXXXXXX
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If to Employer:
Legacy Brands, Inc.
0000-X Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: President
If to Employee:
Xxxxxx Xxxxxxxxxxx
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxxxxx 00000
7.3 Inclusion of Entire Agreement Herein. This Agreement supersedes any
and all other agreements, either oral or in writing, between the parties hereto
with respect to the employment of the Employee by the Employer and contains all
of the covenants and agreements between the parties with respect to such
employment in any manner whatsoever with exception of such stock bonus plans,
stock options or other deferred compensation as may from time to time be granted
to Employee by action of the Board of Directors of Employer.
7.4 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
It is the desire and intent of the parties to this Agreement that
the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought; and that if any particular provisions or portion of
this Agreement shall adjudicated to be invalid or unenforceable, such agreement
shall be deemed amended to delete therefrom such provision or portion
adjudicated to be invalid or unenforceable, such amendment to apply only with
respect to the operation of such provision or portion in the particular
jurisdiction in which such adjudication is made.
The parties to this Agreement recognize that the performance of
the obligations under this Agreement is special, unique and extraordinary in
character and that in the event of the breach by Employee of the terms and
conditions of this Agreement to be performed, the Employer shall be entitled, if
it so elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement or to enforce the specific performance thereof by Employee or to
enjoin Employee from performing services for any such other person, firm or
corporation.
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7.5 Arbitration. In the event of any dispute arising under this
Employment Agreement, including any dispute regarding the nature, scope or
quality of services provided by either party hereto, it is hereby agreed that
such dispute shall be resolved by binding arbitration to be conducted by the
American Arbitration Association (AAA), to be arbitrated in accordance with
their rules and procedures in Sacramento, California. In the event of any such
arbitration, pending resolution of the arbitration and award of costs by the
arbitrator, each party hereto shall advance one-half of the amounts, if any,
requested to be advanced to the arbitrator and/or the sponsoring organization.
7.6 Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which may be entitled.
7.7 Payment of Money Due Deceased Employee. If the Employee dies prior
to the expiration of the term of employment, any money that may be due him from
the Employer under this Agreement as of the date of his death shall be paid to
his executors, administrators, heirs, personal representatives, successors, and
assigns.
7.8 Modification or Extension of Agreement. This Agreement may not be
changed, modified, released, discharged, abandoned, or otherwise amended, in
whole or in part, except in writing, signed by the Employee and the Employer,
but only after written approval of the Employer's CEO. Employee agrees that any
subsequent change or changes in his duties, salary or compensation shall not
effect the validity or scope of this Agreement.
If, on the request or with the consent of Employer, Employee continues
in his employment beyond the period described in Article 1, this Agreement shall
remain in effect during continuance of such service.
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LEGACY BRANDS, INC. AND
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IN WITNESS WHEREOF, the parties have executed this Agreement at the
Employer's offices in Roseville, California, this 30th day of Oct., 1996.
EMPLOYER:
LEGACY BRANDS, INC.
By: /s/ XXXXXX X. XXXX
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Pres. CEO & Chairman
EMPLOYEE:
By: /s/ XXXXXX XXXXXXXXXXX
-------------------------------
Xxxxxx Xxxxxxxxxxx
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EXHIBIT A
CERTIFICATE OF VESTING
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CERTIFICATE OF VESTING
The Secretary, or Assistant Secretary of Legacy Brands, Inc.,
("Company") does this ____ th of _______________, certify that ________________,
an employee of the Company, has completed ______ quarters of employment. The
Employee has the right to purchase _________________ shares of Common Stock of
the Company.
The issuance of this certificate creates an obligation in the Employee
to pay such principal amount plus interest as bears relation to the portion of
the shares of Common Stock of the Company which he is entitled to dispose of
pursuant to the terms of the Employment Agreement, Restricted Stock Purchase
Agreement and related Promissory Note.
The undersigned certifies that the foregoing is true and accurate.
By:
-------------------------------
Title:
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