EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement" is entered into between
NutraStar, a Nevada corporation (the "Company"), and Xxxxxx Xxxxxx (the
"Employee") as of April 1, 2000.
1. SCOPE OF EMPLOYMENT.
(a) POSITION. The period of the Employee's employment by the Company is
referred to below as the "Term." During the Term, the Company shall employ the
Employee as its Vice President, reporting to the Company's Chief Executive
Officer and its Board of Directors (the "Board"). The Term shall commence as of
April 1, 2000 and continue until March 31, 2003.
(b) OBLIGATIONS.
(i) During the Term and except as expressly noted in this
Section 1(b), the Employee shall devote his full business efforts and services
to the Company in the performance of his duties, consistent with the Employee's
position with the Company, as shall reasonably be assigned to him by the Board.
The Employee agrees, during the Term, not to provide; employment or consulting
services to others outside the Company or otherwise engage in any other
business, profession or occupation for compensation or otherwise. However,
subject to the Employee's compliance with the provisions of Section 6, below,
(x) the Employee may serve as a director on boards of directors of other
companies and may serve any civic, educational or charitable organization in any
manner that does not materially interfere with his duties to the Company, and
(y) the Employee may also invest and manage personal assets in businesses to an
extent that does not interfere with his duties to the Company and does not
create material conflicts of interest with the Company.
(ii) The Employee hereby represents to the Company that he has
discussed his resignation of employment with his current employer, The RiceX
Company, which the Employee shall make effective no later than the date hereof,
and that the execution and delivery of this Agreement by the Employee and the
Company and the performance by the Employee of the Employee's duties hereunder
shall not constitute a breach of, or otherwise contravene, the terms of any
employment agreement or other agreement or policy to which the Employee is a
party or otherwise bound.
(c) AT-WILL STATUS/WRITTEN TERMINATION NOTICE. The Employee and the
Company agree that the Employee's employment with the Company constitutes
"at-will" employment. Therefore, this employment relationship may be terminated
at any time, with or without cause or reason, at the option either of the
Company or the Employee, subject only to satisfaction of the notice requirements
set forth below and the Company's obligations with respect to severance
compensation and benefits otherwise specified in this Agreement. The party
initiating the termination of employment shall give the other party written
notice stating the effective date of termination, which effective date may (i)
in the case of a termination of the Employee's employment by the Company for
Cause (as defined in Section 2(d)(3)), be the date of giving of notice or any
later date and (ii) in the case of a termination of the Employee's employment by
the Company without Cause or due to the Employee's resignation, shall be a date
at least thirty (30) days after the date of delivery of such notice to the other
party.
(d) OTHER AGREEMENTS AND FORMS. The Employee agrees to sign and deliver
to the Company on request (i) a copy of the Company's standard form of
Confidential Information Agreement required of other senior management
employees, as the same may be updated from time to time for purposes of
financing or other business transactions or otherwise, and (ii) any other
employment related forms that may be required by law.
2. COMPENSATION
(a) BASE SALARY. While employed by the Company, the Company shall pay
the Employee as compensation for his services a base salary at a rate no less
than $100,000 per annum. Employer shall review Employee's salary from time to
time, and may, in Employer's sole discretion, increase the salary paid to
Employee.
(b) BENEFITS. The Employee shall be entitled to a total of 20 weekdays
(Monday through Friday) per employment year commencing upon the date of this
Agreement for vacation. Sick leave and other personal time off work (the
"Personal Time'"), shall be accrued at the rate of six (6) days per year in
addition to national or other holidays chosen by the Company as holidays for all
employees and delineated in the Employees' Handbook which general holidays shall
not be counted as Personal Time). Any accrued but unused Personal Time may be
carried forward into subsequent years; provided, however, that no Personal Time
shall be earned or accrued if the accrued but unused Personal Time available to
the Employee at any time exceeds a total of 30 days. Personal Time shall not
resume to be earned until accrued and unused Personal Time again declines below
30 days. The Employee and the Company shall reasonably cooperate with each other
in scheduling Personal Time used for vacation. During the Term, the Employee
(and, to the extent otherwise applicable, family dependents) shall otherwise be
eligible to participate in the expense reimbursement, medical, insurance and
other benefit and welfare plans maintained by the Company that are applicable to
other senior management of the Company, and on a basis no less favorable than
that made available to any other executive officer of the Company. In addition,
the Company shall during the Term pay or reimburse the Employee for mileage at
the rate of $.31 per mile.
(c) SEVERANCE. If the Company terminates the Employee's employment with
the Company without "Cause" or the Employee resigns for "Good Reason" (both as
defined below), then the Company shall pay the Employee the base salary, bonus
and benefits payable to the Employee under Sections 2(a), (b) and (c) (the
"Severance Payment") for the remainder of the Term. The Company shall also pay
the Employee all salary, unused vacation, earned bonuses, and other benefits, if
any, which are otherwise accrued, owing and unpaid at the date of termination
(the "Accrued Pay"). Upon a termination of the Employee's employment described
in this Section 2(d), the Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
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(i) Time of Payment. The Company shall pay the Employee all
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Accrued Pay on the effective date of termination, and shall pay the Employee the
Severance Payment in monthly instalments commencing within ten (10) days after
the effective date of termination.
(ii) Release. The Company shall be entitled. to require, as a
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condition of payment of the Severance Payment, that the Employee execute and
deliver, and (if revocation is otherwise allowed under federal age
discrimination law) not revoke for seven days, a general release by the Employee
in form and content satisfactory to the Company in which the Employee releases
the Company and its affiliates from all claims and liabilities that may relate
to the Employee's employment by the Company and/or arise under any state or
federal laws relating to employment. This release shall not excuse or impair
timely payment by the Company of any sums due under this Agreement.
(iii) Cause Defined: For the purposes of this Agreement,
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"Cause" shall mean the Employee: (1) has been guilty of, or has pleaded "no
contest" to, personal acts or omissions which constitute a felony; or (2) has
personally committed a material act of dishonesty, fraud, violation of law or
other intentional misconduct having the effect of injuring the reputation,
business or business relationships of the Company; or (3) has wilfully breached
his fiduciary or contractual duties to the Company; or (4) has intentionally or
through gross negligence failed to perform the duties of his position after
being warned in writing; or (5) has wilfully and wrongfully disclosed trade
secrets or other material confidential information in violation of his duties to
the Company; or (6) has violated the provisions of Section 6, below.
(iv) Good Reason Defined. For the purposes of this Agreement,
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"Good Reason" shall mean (1)a reduction in the Employee's base salary; or (2) a
material demotion; or (3) a material reduction in the Employee's
responsibilities or authority; or (4) an involuntary relocation of the place of
the Employee's employment with the Company more than twenty (20) miles away from
El Dorado Hills (excluding business travel consistent with the Employee's duties
to the Company); or (5) any material breach of this Agreement by the Company
which, in each of the cases described in causes (1) through (5), above, is not
cured within fifteen (15) days after the Employee gives written notice to the
Company stating the nature of the claimed breach.
(v) Mitigation. The amounts payable by the Company to the
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Employee under this paragraph (d) shall be reduced by any compensation that may
be earned by the Employee in connection with any subsequent employment,
self-employment or otherwise.
(vi) Exclusive Payment. Except for payments and rights
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referred to in this paragraph (d), the Employee shall not be entitled to collect
or claim any other amounts from the Company in connection with the termination
of the Employee's employment by the Company without Cause.
(d) TERMINATION DUE TO EMPLOYEE'S DEATH OR DISABILITY. If the
Employee's employment with the Company terminates due to his death or
Disability, (as defined below), then the Company shall continue to pay the
Employee's base salary through the end of the month in which such termination
occurs. The Company shall also pay the Employee all salary, unused vacation,
earned bonuses, and other benefits, if any, which are accrued, owing and unpaid
at the date of termination. Upon a termination of the Employee's employment
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described in this Section 2(e), the Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
For purposes of this Agreement, Disability shall mean commencement of
benefits to the Employee based on full disability as defined under the Company's
group disability insurance policy, if any, in effect at the time of that event;
and in the absence of any such policy, the absence of the Employee from full
time performance of his duties for a period in excess of ninety (90) consecutive
days due to incapacity of the Employee from physical or mental illness.
(e) TERMINATION BY THE COMPANY FOR CAUSE OR DUE TO EMPLOYEE'S
RESIGNATION WITHOUT GOOD REASON. If the Company terminates the Employee's
employment with the Company for Cause or if the Employee resigns his employment
with the Company without Good Reason, then the Company shall pay the Employee
all salary, unused vacation, earned bonuses, and other benefits, if any, which
are accrued, owing and unpaid at the date of termination. Upon a termination of
the Employee's employment described in this Section 2(f), the Employee shall
have no further rights to any compensation or any other benefits under this
Agreement.
(f) VESTED PLAN BENEFITS NOT AFFECTED. No provision of this Agreement
shall be interpreted to deny or impair any payments and/or rights that are
vested or otherwise payable in accordance with the express terms of any stock
option, ERISA, retirement, insurance, or other benefit plan which has been
written or formally adopted by the Company, or COBRA rights governing
continuation of health insurance benefits. These payments and rights are in
addition to any payments otherwise due under this Agreement. However, the
Employee acknowledges that termination of his employment under any circumstance
will end any further participation in any benefit plan as may be provided in the
applicable plan documents.
3. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and (a) the heirs, executors and legal representatives of the
Employee upon the Employee's death and (b) any successor of the Company (whether
by purchase of assets or shares, merger, consolidation or otherwise). None of
the rights of the Employee to receive any form of compensation payable pursuant
to this Agreement shall be assignable or transferable except by will or by law
upon the death of the Employee. The Company shall require any successor of the
Company to agree in writing expressly to perform this Agreement to the same
extent as would be required if no such succession had taken place.
4. NOTICES. All notices, requests, demands and other communications called for
hereunder shall be in writing and shall be deemed given if (i) delivered
personally, (ii) one (1) day after being sent by Federal Express or a similar
commercial overnight service, or (iii) three (3) days after being mailed by
registered or certified mail, return receipt requested, prepaid and addressed to
the parties or their successors in interest at the following addresses, or at
such other addresses as the parties may designate by written notice in the
manner aforesaid:
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If to the Company: 0000 Xxxx'x Xxxxxx Xxxxx, Xx Xxxxxx Xxxxx, XX 00000.
If to the Employee: at the last residential address known by the Company.
5. SEVERABILITY. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without that
provision.
6. CONFIDENTIAL INFORMATION AGREEMENT AND NON-COMPETITION.
(a) Confidentiality. The Employee agrees to enter into the Company's
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standard confidentiality and inventions agreement required from other senior
management from time to time. Without limiting the foregoing, the Employee
agrees that Employee will not at any time (whether during or after this
employment with the Company) disclose or use for his own benefit or purposes or
the benefit or purposes of any other person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise
other than the Company and any of its subsidiaries or affiliates, any trade
secrets, technology, information, data or other confidential information
relating to customers, development programs, costs, marketing, trading,
investment, sales activities, promotion, credit and financial data,
manufacturing processes, financing methods, plans, or the business and affairs
of the Company generally, or of any subsidiary or affiliate of the Company,
provided that the foregoing shall not apply to information which is not unique
to the Company or which is generally known to the industry or the public other
than as a result of Employee's breach of this covenant. Employee agrees that
upon termination of his employment with the Company for any reason, he will
return to the Company immediately all memoranda, books, papers, plans, business
or financial information, letters and other data, and all copies thereof or
therefrom embodied or stored in documents, disks of any nature, or other media,
in any way relating to the business of the Company and its affiliates, except
that he may retain personal notes, notebooks and diaries that do not contain
confidential information of the type described in the preceding sentence.
Employee further agrees that he will not retain or use for his account at any
time any trade names, trademark or other proprietary business designation used
or owned in connection with the business of the Company or its affiliates.
(b) Non-Compete. Employee acknowledges and recognizes the highly
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competitive nature of the businesses of the Company and its affiliates and
accordingly agrees as follows:
(i) To the fullest extent the same may be enforceable under
any law, during the Term and for a period of nine (9) months following the date
Employee ceases to be employed by the Company (the "Restricted Period"), the
Employee will not directly or indirectly (i) engage anywhere in the world (the
"Geographic Area") in any business for the Employee's own account that competes
with the business of the Company, (ii) enter the employ of, or render any
services to, any person engaged in any business that competes with the business
of the Company within the Geographic Area (iii) acquire a financial interest in,
or otherwise become actively involved with, any person engaged in any business
that competes with the business of the Company within the Geographic Area,
directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant, or (iv) interfere with
business relationships (whether formed before or after the date of this
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Agreement) between the Company or any of its affiliates that are engaged in a
business similar the business of the Company (the "Company Affiliates") and
customers or suppliers of the Company or the Company Affiliates. The Employee
acknowledges that this is a reasonable restriction to prevent inevitable
disclosure of trade secrets of the Company or Company Affiliates, and that the
Employee shall have the burden of proving that this restriction is not
reasonably appropriate for the protection of these trade secrets.
Notwithstanding the foregoing, this restriction shall not preclude the Employee
from accepting employment at a company in which he does not own or share a
controlling interest if the Employee's duties during such 9 month period
following employment with the Company do not involve the Employee's
participation in activities or lines of business which compete with the business
of the Company or Company Affiliates and do not conflict with clause (iv) above.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Employee may, directly or indirectly own, solely as an
investment, securities of any person engaged in the business of the Company
which are publicly traded on a national or regional stock exchange or on the
over-the-counter market if the Employee (i) is not a controlling person of, or a
member of a group which controls, such person and (ii) does not, directly or
indirectly, own (five percent (5%) or more of any class of securities of such
person.
(iii) During the Restricted Period, the Employee will not,
directly, or indirectly (i) solicit or encourage any employee of the Company or
the Company Affiliates to leave the employment of the Company or the Company
Affiliates or (ii) hire any such employee who has left the employment of the
Company or the Company Affiliates following, or within one year prior to, the
date of the Employee's termination of employment with the Company or the Company
Affiliates.
(iv) During the Restricted Period, the Employee will not,
directly or indirectly, solicit or encourage to cease to work with the Company
or the Company Affiliates any consultant then under contract with the Company or
the Company Affiliates.
(v) During the Restricted Period, the Employee will not
directly or indirectly, solicit, or encourage to cease to do business with the
Company or the Company Affiliates, any customer, vendor, supplier or other third
party with whom, prior to the termination of the Employee's employment, the
Employee has had any significant role in negotiating contracts, managing that
account or otherwise dealing with that customer or other third party. The
Employee acknowledges that this is a reasonable restriction to prevent
inevitable disclosure of trade secrets of the Company or Company Affiliates, and
that the Employee shall have the burden of proving that this restriction is not
reasonably appropriate for the protection of these trade secrets.
(c) Savings Clause. The Employee acknowledges that no shareholder or
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lender would invest any monies in the Company without the benefit of the
covenants contained in this Section 6 by the Employee, and that these covenants
are an important part of the Company's strategy to achieve value for all of its
shareholders, including the Employee to the extent of his interest in the
Company's stock. The Employee represents that he has consulted with counsel
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concerning the terms of this Agreement, including, but not limited to, the
provisions of this Section 6, and acknowledges that compliance with the
provisions of this Section 6 are fair and reasonable. The Employee further
acknowledges that compliance with the provisions of this Section 6 will not
create any hardship on the Employee as he has both independent means and
sufficient income to be fully self-supporting without competing with the Company
or otherwise violating any of the provisions hereof. Accordingly, the Employee
shall be bound by the provisions hereof to the maximum extent permitted by law,
it being the intent and spirit of the parties that the foregoing shall be fully
enforceable. However, the parties further agree that, if any of the provisions
hereof shall for any reason be held to be excessively broad as to duration,
geographical scope, property or subject matter, it shall be construed by
limiting and reducing it o as to be enforceable to the extent compatible with
the applicable law as it shall herein pertain.
(d) Specific Performance. Employee acknowledges and agrees that the
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Company's remedies at law for a breach or threatened breach of any of the
provisions of this Section 6 would be inadequate and, in recognition of this
fact, Employee agrees that, in the event of such a breach or threatened beach,
in addition to any remedies at law, the Company, without posting any bond shall
be entitled to cease making any payments or providing any benefit otherwise
required by this Agreement and obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available.
7. ENTIRE AGREEMENT. Except for that certain Confidential Information Agreement
between the Company and the Employee (and any other subsequent written
confidentiality agreement signed by the Company and the Employee), this
Agreement represents the entire agreement and understanding between the Company
and the Employee concerning the Employee's employment relationship with the
Company, and supersedes and replaces any and all prior agreements and
understandings concerning the Employee's employment relationship with the
Company.
8. ARBITRATION
(a) The Employee and the Company agree that any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof (and whether arising in contract, tort, statutory law, equity or
otherwise), shall be settled by arbitration to be held within twenty-five (25)
miles of the location of the Employee's then most recent principal place of
employment with the Company in accordance the National Rules for the Resolution
of Employment Disputes then in effect of the American Arbitration Association
(the "Rules"). There shall be a single arbitrator agreed upon mutually by the
parties. If the parties cannot agree upon the selection of an arbitrator within
30 days after the demand for arbitration given by one party to the other, the
selection of the arbitrator shall be made as provided in the Rules. The
arbitrator may grant damages, injunctions or other relief in such dispute or
controversy, except that the arbitrator shall not have the power to award any
damages or other relief or remedy that would not be available from a court of
competent jurisdiction located in California. The decision of the arbitrator
shall be final, conclusive and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any court having
jurisdiction.
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(b) The arbitrators shall apply California law without reference to
rules of conflicts of law and any applicable federal law of the United States of
America to the merits of any dispute or claim. The arbitration proceedings shall
be governed by federal arbitration law and by the Rules, without reference to
state arbitration law. The Employee and the Company thereby expressly consent to
the personal jurisdiction of the state and federal courts located in California
for any action or proceeding arising from or relating to this Agreement and/or
relating to any arbitration in which the parties are participants.
(c) The Company and the Employee shall each pay one-half of the costs
and expenses of such arbitration, and shall separately pay its or his own
counsel fees and expenses during the course of arbitration, provided that the
arbitrator shall have the discretion to award attorneys' fees to the Employee in
the event the arbitrator determines that the Employee should be considered the
prevailing party.
(d) THE EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS CLAUSE
CONSTITUTES A WAIVER OF THE EMPLOYEE'S RIGHT TO A JURY TRIAL AND RELATES TO THE
RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE
RELATIONSHIP, WHETHER ARISING UNDER CONTRACT OR FEDERAL OR STATE LAWS RELATING
TO EMPLOYMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
(e) Notwithstanding the foregoing, each party agrees that the foregoing
arbitration clause shall not apply to the subject matter of the Confidential
Information Agreement or similar written contract in effect from time to time
between the parties, and neither party is obligated to submit to arbitration any
dispute arising under such separate written agreements.
9. NO ORAL OR INDIRECT MODIFICATION. This Agreement may only be amended,
cancelled or discharged in writing signed by the Employee and a duly authorized
officer (other than the Employee) of the Company. The Employee agrees that no
employee handbook, employment policies or other acts or omissions of the Company
shall be considered to be part of this Agreement or any implied employment
agreement except to the extent stated in writing and signed by the parties as
provided in this Section 9.
10. WITHHOLDING. The Company shall be entitled to withhold, or cause to be
withheld, all applicable withholding taxes required by foreign, federal, state
or local laws from all cash and noncash compensation or other payments made to
Employee in connection with his employment, this Agreement, or other agreements,
if any, between the Employee and the Company.
11. ACKNOWLEDGMENT. The Employee acknowledges that he has had the opportunity to
discuss this matter with and obtain advice from his own attorney if so desired,
has had sufficient time to, and has carefully read and fully understands, all
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the provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
12. COUNTERPARTS. Thus Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. A signature transmitted via email or
facsimile transmission shall be as binding as a manual signature on a
counterpart hereof.
NutraStar
a Nevada corporation
("Company")
By: /s/ Xxxxxxxx XxXxxx
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Print Name: XXXXXXXX XxXXXX
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Title: President & CEO
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx ("Employee")
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