EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THE RICEX COMPANY, a Delaware corporation ("Employer"), and Xxxxx X.
Xxxxxx ("Employee"), agree as follows, effective as of the first day of July,
2004 (the "Effective Date").
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby
accepts employment with Employer on the terms and conditions set forth below.
2. POSITION; SCOPE OF EMPLOYMENT. The Employee is employed as Corporate
Controller and Manager of Information Systems of the Company. In this capacity,
the Employee shall be responsible for Company accounting, financial reporting,
managing the Company information systems, and other duties listed in the Chief
Financial Officer, or CFO, approved job description regarding the Company's
financial accounting and reporting; as well as information system administration
and other duties and responsibilities as the CFO shall designate and are not
inconsistent with the Employee's position with the Company, including the
performance of duties with respect to any subsidiaries of the Company, and shall
include such other duties and authority as specified by Employer and as may be
modified from time to time.
2.1. ENTIRE TIME AND EFFORT. Employee shall devote Employee's
full working time, attention, abilities, skill, labor and efforts to the
performance of Employee's employment. Employee shall not directly or indirectly
(i) be substantially engaged in or concerned with any other duties or pursuits,
(ii) render services to any third party for compensation or other benefit, or
(Hi) engage in any other business activity that will in any way interfere with
the performance of Employee's duties under this Agreement, except with the prior
written consent of Employer; provided, however, that Employee may engage in
charitable, philanthropic, educational, religious, civic and similar such
activities to the extent that such activities do not unreasonably interfere with
the performance of Employee's duties under this Agreement.
2.2. RULES AND REGULATIONS. Employee agrees to observe and
comply with Employer's rules and regulations as provided by Employer and as may
be amended from time to time by Employer, and will carry out and faithfully
perform such orders, directions and policies of Employer.
3. TERM OF EMPLOYMENT. Employee's term of employment under the terms of
this Agreement shall commence on July 1,2004 and shall terminate five years from
that date, unless terminated earlier as provided herein. At the end of the
initial five-year term, this Agreement shall automatically renew for an
additional five-year term unless either party notifies the other party in
writing ninety (90) days prior to the expiration of the term of his or its
intention not to renew this Agreement.
4. COMPENSATION. Employer shall pay Employee the base pay ("Base
Salary") of Eighty Thousand Dollars ($80,000) per year which is in effect on the
date of this agreement. Salary payments will be payable in periodic installments
in accordance with Employer's pay schedule, but not less than twice per month.
The Base Salary shall be reviewed at least annually, and shall be adjusted to
compensate for cost of living adjustments in the Sacramento metropolitan area.
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4.1. BENEFITS. Employee shall be provided with medical
insurance and such other benefits as provided to Employer's other similarly
situated employees and in accordance with Employer's policies, as modified from
time to time in Employer's sole discretion.
4.2. VACATION AND SICK LEAVE. Employee shall be entitled to
four weeks of vacation each calendar year. Employee's vacation shall accrue at
the rate of thirteen and one-thirds (13 1/3) hours per month but in no event
shall Employee's total accrued vacation exceed eight (8) weeks. Employee shall
be entitled to sick leave in accordance with Employer's sick leave policy.
4.3. AUTOMOBILE. Employer shall make lease payments on behalf
of the Employee, up to a maximum amount of six hundred dollars ($600.00) per
month. Employer shall also reimburse Employee for his actual expenses incurred
in the operation of one automobile for automobile insurance, annual
registration, and maintenance.
4.4. BONUS. Employee shall be eligible to participate in
Employer's bonus program when implemented to the same extent as other executive
employees of Employer and will be commensurate with the level and nature of
Employee's duties and responsibilities. Employer intends to adopt such a program
prior to the expiration of this Agreement, but makes no further representations
as to the terms of such program or the date such program will be enacted.
Termination of Employment
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5.1. TERMINATION EVENTS. Employee's employment shall be
terminated prior to the expiration of this Agreement ("Early Termination") upon
the occurrence of any of the following events: (i) the mutual written agreement
of Employer and Employee; (ii) Employee's disability, which shall for the
purposes of this Agreement mean Employee's inability due to physical or mental
impairment to perform Employee's duties and obligations under this Agreement,
despite reasonable accommodation by Employer, for a period exceeding three
months; (iii) Employee's death; (iv) notice by Employer of termination for cause
as defined in Section 5.2 below; (iv) written notice of termination by Employer
without cause upon fourteen (14) days' notice, subject to the Compensation Upon
Early Termination provisions of Section 5.3 below.
5.2. TERMINATION FOR CAUSE. Employer reserves the right to
terminate this Agreement for cause upon (i) Employee's willful and continued
failure substantially to perform his duties and obligations under this Agreement
after written demand for substantial performance has been delivered to Employee
by Employer which sets forth with reasonable specificity the deficiencies in
Employee's performance and giving Employee not less than thirty (30) days to
correct such deficiencies; (ii) fraud or intentional material misrepresentation
by Employee, (iii) unauthorized disclosure or use of Employer's trade secrets or
Confidential Information by Employee; (iv) Employee's conviction of a felony;
(v) theft or conversion of Employer's property by Employee; or (vi) Employee's
habitual misuse of alcohol, illegal narcotics, or other intoxicant.
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5.3. COMPENSATION UPON EARLY TERMINATION. Upon early
termination, Employer shall pay Employee compensation as follows.
(A) If Employee is terminated by Employer for cause,
voluntarily resigns, dies, or becomes disabled as such term is used in Section
5.1 of this Agreement, Employer shall pay Employee, or Employee's
representative, all accrued but unpaid salary and vacation pay accrued through
the effective date of the termination.
(B) If Employee is terminated by Employer without
cause, Employer shall pay to Employee as liquidated damages and in lieu of any
and all other claims which Employee may have against Employer the amount equal
to Employee's monthly base salary multiplied by the number of months remaining
in the term of this Agreement, or payment amount equal to two years of
Employee's Base Salary, which ever is greater. Employer's payment pursuant to
this section shall fully and completely discharge any and all obligations of
Employer to Employee arising out of or related to this Agreement and shall
constitute liquidated damages in lieu of any and all claims which Employee may
have against Employer, not including any obligation under the Worker's
Compensation laws including its Employer's Liability provisions.
(C) If Employee is terminated as the result of a
Change in Control and Employee is not employed in the same capacity or being
paid the same Base Salary by the new entity, then Employee shall receive a
severance payment equal to two years of Employee's Base Salary or the balance
remaining to be paid under the terms of this Agreement, whichever is greater. In
addition, if Employee is terminated as the result of a Change in Control and
Employee is not employed in the same capacity by the new entity, Employer agrees
to continue Employee's medical and dental insurance benefits as provided during
Employee's employment with Employer for a period of two years from the effective
date of the Change in Control, except as provided below in Section 5.3(C)(1) and
Section 5.3(C)(2).
(1) Employee agrees that he shall accept any
plan coverage changes that may occur during the two-year period which apply to
all employees in the workforce.
(2) Employee agrees that he will notify
Employer (or any successor of Employer) if he becomes employed in any capacity
with another employer and becomes eligible to receive medical and dental
insurance benefits through that employment prior to the expiration date of the
two-year period set forth in this section. At such time, Employer shall no
longer be obligated to provide Employee with medical and dental insurance
benefits.
6. UNFAIR COMPETITION. During Employee's employment under this
Agreement, Employee shall not directly or indirectly, whether as a partner,
employee, creditor, shareholder or otherwise, promote or engage in any activity
or other business which is competitive in any way with Employer's business, and
shall not take any action or make any agreement to establish, or become employed
by, a competing business.
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Proprietary Information: Confidentiality.
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7.1. CONFIDENTIAL INFORMATION. Employee agrees not to disclose
to any others, or take or use for Employee's own purposes or purposes of any
others, during the term of this Agreement, any of Employer's Confidential
Information (as defined below). Employee agrees that these restrictions shall
also apply to (1) Confidential Information belonging to third parties in
Employer's possession and (2) Confidential Information conceived, originated,
discovered or developed by Employee during the term of this Agreement.
"Confidential Information" means any Employer proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer lists and customers, markets,
software, developments, inventions, processes, formulas, technology, designs,
drawings, engineering, marketing, finances or other business information
disclosed to Employee by Employer, either directly or indirectly, in writing,
orally or by drawings, or by observation of products. Confidential Information
does not include any of the foregoing items which has become publicly known and
made generally available through no wrongful act of Employee. Employee further
agrees not to use improperly or disclose or bring onto the premises of Employer
any trade secrets of another person or entity during the term of this Agreement.
7.2. RETURN OF PROPERTY. Employee agrees that upon termination
of employment with Employer, Employee will deliver to Employer all devices,
records, data, disks, computer files, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items developed by Employee pursuant to employment with Employer or otherwise
belonging to Employer, its successors or assigns.
7.3. NONCOMPETITION. Employee shall not use any of the
Confidential Information to compete with Employer in connection with a business
or enterprise of any kind, foreign or domestic, profit or non-profit, as an
investor, partner, shareholder, LLC member, employee, agent, consultant or
independent contractor. Nothing in this Section 7.3 shall be construed to limit
the more general prohibitions against unauthorized use or disclosure of the
Confidential Information contained in other sections of this Agreement.
7.4. NOTIFICATION OF NEW EMPLOYER. Employer shall have the
right to notify any actual or potential future employer of Employee of
Employee's rights and obligations under this Section 7 of the Agreement.
Employee expressly authorizes such disclosure and waives any claims Employee may
have against Employer resulting from the disclosure of Employee's obligations
under this Section 7 to an actual or potential future employer of Employee.
7.5. OTHER AGREEMENTS. Employee represents that the
performance of all the terms of this Agreement will not breach any agreement to
keep in confidence proprietary information acquired by Employee in confidence or
in trust prior to employment with Employer. Employee has not and shall not enter
into any oral or written agreement in conflict with this Agreement.
7.6. EQUITABLE REMEDIES. Employee agrees that it would be
impossible or inadequate to measure and calculate Employer's damages from any
breach of the covenants set
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Forth in this Section 7 of the Agreement. Accordingly, Employer shall have
available, in addition to any other right or remedy available under law or
equity, the right to obtain any injunction from a court of competent
jurisdiction restraining such breach or threatened breach and to specific
performance of any such provision of this Section 7. Employee further agrees
that no bond or other security shall be required in obtaining such equitable
relief and consents to the issuance of such injunction and to the ordering of
specific performance.
8. MISCELLANEOUS
8.1. NOTICES. Any notice under this Agreement shall be in
writing, and any written notice or other document shall be deemed to have been
du1y given (i) on the date of personal service on the parties, (ii) on the third
business day after mailing, if the document is mailed by registered or certified
mail, (iii) one day after being sent by professional or overnight courier or
messenger service guaranteeing one-day delivery, with receipt confirmed by the
courier, or (iv) on the date of transmission if sent by telegram, telex,
telecopy or other means of electronic transmission resu1ting in written copies,
with receipt confirmed. Any such notice shall be delivered or addressed to the
parties at the addresses set forth below or at the most recent address specified
by the addressee through written notice under this provision. Failure to give
notice in accordance with any of the foregoing methods shall not defeat the
effectiveness of notice actually received by the addressee.
8.2. ENFORCEMENT. This Agreement shall be interpreted in
accordance with the laws of the State of California and will be adjudicated in
the Superior Court of California in and for the County of EI Dorado. In the
event of any dispute concerning any aspect of the obligations of the Company
under this Agreement, the Company or its successor shall reimburse Employee all
attorney fees and costs incurred by Employee in connection with adjudication of
such matters.
8.3. CHOICE OF LAW. JURISDICTION. VENUE. This Agreement is
drawn to be effective in the State of California, and shall be construed in
accordance with California law. The exclusive jurisdiction and venue of any
legal action by either party under this Agreement shall be the County of
Sacramento, California.
8.4. AMENDMENT. The provisions of this Agreement may be
modified at any time by agreement of the parties. Any such agreement hereafter
made shall be ineffective to modify this Agreement in any respect unless in
writing and signed by the parties against whom enforcement of the modification
or discharge is sought.
8.5. WAIVER. Any of the terms or conditions of this Agreement
may be waived at any time by the party entitled to the benefit thereof, but no
such waiver shall affect or impair the right of the waiving party to require
observance, performance or satisfaction either of that term or condition as it
applies on a subsequent occasion or of any other term or condition.
8.6. ASSIGNMENT. The parties agree that Employee's rights and
obligations under this Agreement are personal and not assignable. This Agreement
contains the entire agreement between the parties to it and shall be binding on
and inure to the benefit of the heirs, personal representatives, successors and
assigns of Employer.
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8.7. INDEPENDENT COVENANTS. All provisions herein concerning
unfair competition and confidentiality shall be deemed independent covenants and
shall be enforceable without regard to any breach by Employer unless such breach
by Employer is willful and reckless.
8.8. ENTIRE AGREEMENT. This document constitutes the entire
agreement between the parties, all oral agreements being merged herein, and
supersedes all prior representations and written agreements. There are no
representations, agreements, arrangements, or understandings, oral or written,
between or among the parties relating to the subject matter of this Agreement
that are not fully expressed herein.
8.9. SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement which can be given effect without the invalid
provision shall continue in full force and effect and shall in no way be
impaired or invalidated.
8.10. CAPTIONS. All paragraph captions are for reference only
and shall not be considered in construing this Agreement.
DATED:October 1, 2004
THE RICEX COMPANY EMPLOYEE
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx,
Controller
Xxxxxxxx Xxxxxx
Its: Chief Executive Officer
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