Exhibit 6.5
EMPLOYMENT AGREEMENT
FOOD EXTRUSION, Inc. a California corporation ("Employer"), and
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx ("Employee") agree as of April 14, 1996, as
follows:
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. Employee shall have the position of
Research Pharmaceutical Chemist. Employee's duties shall include developing
methods to concentrate the unsaponifiable fraction of Rice Bran Oil, setting up
a pilot plant for performing pharmaceutical separations of various fractions of
Rice Bran Oil and developing the plans for a production size facility to perform
these separations, assisting in analytical assays of Employer's products and
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
(iii) 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. The Employee's employment shall commence on
April 14, 1996, and shall terminate three years from that date, unless
terminated earlier as provided herein. At the end of the initial three year term
this Agreement shall automatically renew for an additional three year term
unless either party notifies the other party in writing thirty (30) days prior
to the expiration of the initial term, of his or its intention not to renew this
agreement.
4. Compensation. Employer shall pay to Employee a base salary of Fifty
Thousand Dollars ($50,000) per year, payable in accordance with the Employer's
pay schedule, but not less than twice per month. Employer shall review
Employee's salary from time to time, and may, in Employer's sole discretion,
increase the salary paid to Employee.
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 two
weeks of vacation each calendar year. Employee's vacation shall accrue at the
rate of six and two-thirds (6 2/3) hours per month but in no event shall
Employee's total accrued vacation exceed three (3) weeks. Employee shall be
entitled to sick leave in accordance with Employer's sick leave policy.
4.3. Automobile Allowance. Employer shall pay to Employee
three hundred dollars $300.00 each month as an automobile allowance. Employer
will not withhold any applicable local, state or federal taxes from the
automobile allowance. Employer will provide the Employee with a form 1099 at the
end of each tax year showing the amount of automobile allowance paid during that
year. Employee shall be solely responsible for the payment of any and all
federal, state or local taxes which may become due as a result of his receipt of
this automobile allowance.
4.4. Employer Stock. Employee will be eligible to participate
in any Employee Stock Purchase Plan or Stock Option Plan which the Employer may
adopt during the term of this Agreement. Employer intends to adopt such a plan
prior to the expiration of this Agreement, but makes no further representations
as to the terms of such plan or the date such plan will be enacted.
5. Termination of Employment
5.1. Termination Events. Employee's employment shall be
terminated prior to the expiration of this Agreement upon the occurrence of any
of the following events: (i) the mutual written agreement of the Employer and
Employee; (ii) the Employee's disability, which shall, for the purposes of this
Agreement, mean Employee's inability due to physical or mental impairment, tp
perform the Employee's duties and obligations under this Agreement, despite
reasonable accommodation by the Employer, for a period exceeding three months;
(iii) Employee's death; (iv) notice of termination by Employer for cause as
defined in Section 5.2; (iv) written notice of termination by Employer without
cause upon fourteen (14) days notice, subject to the compensation for early
termination provisions of Section 5.3.
5.2. Termination for Cause. Employer reserves the right to
terminate this Agreement for cause upon (i) Employee's willful and continued
failure to substantially perform his or her 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 the Employee's performance and giving the Employee not less than
thirty (30) days to correct such deficiencies; (ii) fraud or intentional
material misrepresentation by the 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; (vi) Employee's habitual misuse of alcohol, illegal
narcotics, or other intoxicant.
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 Employees 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 the Employee's monthly base salary multiplied by the number of months
remaining of the term of this Agreement. 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 Workers Compensation laws
including its Employer's Liability provisions.
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.
7. Proprietary Information; Confidentiality.
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 or at any time thereafter, 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 improperly use 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. Inventions. For purposes of this Agreement, "invention"
shall mean any new machines, manufactures, methods, processes, uses,
apparatuses, compositions of matter, designs, computer programs or software, or
configurations of any kind, discovered, conceived, developed, made, or produced
or any improvements to them, and shall not be limited to the definition of an
invention contained in the United States Patent Laws.
7.3. Assignment of Inventions. Employee assigns to Employer
all of Employee's interest in all ideas and inventions, whether patentable or
not, made or conceived by Employee, solely or jointly with any others, during
the term of Employee's employment with Employer, except for any idea or
invention for which no equipment, supplies, time, facilities or trade secret
information of Employer was used and that was developed entirely upon Employee's
own time, and does not relate either to the business of Employer or Employer's
actual or demonstrably anticipated research or development. All ideas and
inventions hereby assigned are referred to as "Assigned Inventions". This
Agreement does not apply to any invention that qualifies fully under the
provisions of California Labor Code section 2870, a copy of which is attached as
Exhibit A. Employee agrees to promptly disclose all Assigned Inventions in
writing to Employer, to assist Employer in preparing patent applications and
assignments for those inventions and to vest title to those inventions in
Employer, all at Employer's expense, but for no consideration to Employee in
addition to Employee's salary or wages. If Employer requires Employee's
assistance under this Section after termination of Employee's employment,
Employee shall be compensated for Employee's time actually spent in providing
that assistance at any hourly rate equivalent to Employee's salary or wages
during Employee's last period of employment by Employer.
7.4. Prior Inventions. Employee has attached as Exhibit B, a
list of any inventions belonging to Employee prior to employment with Employer
("Prior Inventions"), that relate to the business of Employer or Employer's
actual or demonstrably anticipated research or development. Such inventions
shall remain the property of Employee. Employee hereby grants to Employer a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide and assignable
license to make, have made, modify, sublicense, use and sell such Prior
Inventions as part of or in connection with any product, process or machine,
developed, manufactured, or marketed by Employer or service provided by
Employer. Employee retains the right to sell or license such Prior Inventions to
others, provided such sale or license is subject to the rights granted to
Employer pursuant to this section 7.4. If no such list is attached, Employee
represents that there are no such Prior Inventions.
7.5. Records of Inventions. Employee agrees to keep and
maintain adequate and current written records of all inventions of Employee
during the term of employment with Employer. Such records shall be in the form
of notes, sketches, drawings, and any other format that may be specified by
Employer, and shall be available to and remain the sole property of Employer at
all times.
7.6. 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.
7.7. 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 7.7 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.
7.8. 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.
7.9. 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.
7.10. 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 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. Dispute Resolution. The Employee and Employer shall use best efforts
to settle any disputes regarding the rights or obligations of the parties under
this Agreement through negotiation and agreement. Any disputes which cannot be
settled in this manner shall be conclusively determined by binding arbitration.
The arbitration shall be conducted as follows:
8.1. Binding Arbitration. Any dispute between the parties
shall be submitted to, and conclusively determined by, binding arbitration in
accordance with this paragraph. The provisions of this paragraph shall not
preclude any party from seeking injunctive or other provisional or equitable
relief in order to preserve the status quo of the parties pending resolution of
the dispute, and the filing of an action seeking injunctive or other provisional
relief shall not be construed as a waiver of that party's arbitration rights.
The arbitration of any dispute between the parties to this Agreement shall be
governed by the provisions of the California Arbitration Act (California Code of
Civil Procedure section 1280, et seq.), excluding the provisions of Code of
Civil Procedure section 1283.05.
8.2. Initiation of Arbitration. In the case of any dispute
between the parties to this Agreement, either party shall have the right to
initiate the binding arbitration process provided for in this paragraph by
serving upon the other party a demand for arbitration. Notwithstanding any other
provision of law, in order to be enforceable a demand for arbitration must be
served within sixty (60) days of the date on which a party discovers, or
reasonably should have discovered, facts giving rise to a dispute as defined
above.
8.3. Selection of Arbitrators. Within thirty (30) days of
service of a demand for arbitration by either party to this Agreement, the
parties shall endeavor in good faith to select a single arbitrator. If they fail
to do so within that time period, each party shall have an additional period of
fifteen (15) days in which to appoint an arbitrator and those arbitrators within
fifteen (15) days shall select an additional arbitrator. If any party fails to
appoint an arbitrator or if the arbitrators initially selected by the parties
fail to appoint an additional arbitrator within the time specified herein, any
party may apply to have an arbitrator appointed for the party who has failed to
appoint, or to have the additional arbitrator appointed, by the presiding judge
for the Superior Court, Sacramento County, California. If the presiding judge,
acting in his or her personal capacity, is unable or unwilling to appoint the
additional arbitrator, that arbitrator shall be selected in accordance with
California Code of Civil Procedure section 1281.6.
8.4. Location of Arbitration. Any arbitration hearing shall be
conducted in Sacramento County, California.
8.5. Applicable Law. The law applicable to the arbitration of
any dispute shall be the law of the State of California, excluding its conflicts
of law rules.
8.6. Arbitration Procedures. Except as otherwise provided in
this paragraph, the arbitration shall be governed by the California Arbitration
Act (Code Civ. Proc., P 1280 et seq.), excluding the provisions of Code of Civil
Procedure section 1283.05. In addition, either party may choose, at that party's
discretion, to request that the arbitrators resolve any dispositive motions
prior to the taking of evidence on the merits of the dispute. By way of example,
such dispositive motions would include, but not be limited to, those which would
entitle a party to summary judgement or summary adjudication of issues pursuant
to Code of Civil Procedure section 437c or resolution of a special defense as
provided for at Code of Civil Procedure section 597. In the event a party to the
arbitration requests that the arbitrators resolve a dispositive motion, the
arbitrators shall receive and consider any written or oral arguments regarding
the dispositive motion, and shall receive and consider any evidence specifically
relating thereto, and shall render a decision thereon, before hearing any
evidence on the merits of the dispute.
8.7. Limitation on Scope of Arbitrators' Award or Decision.
Employer and Employee agree that if the arbitrators find any disputed claim to
be meritorious, the arbitrators shall have the authority to order legal and/or
equitable relief appropriate to the claim, but that in no event shall the
arbitrators have authority to award punitive or exemplary damages.
8.8. Costs of Arbitration; Attorneys' Fees. Each party shall
bear equally the costs of the arbitration and shall bear its own attorneys'
fees. However, Employer and Employee agree that the arbitrators, in their
discretion, may award to the prevailing party the costs, including the costs of
the arbitration, and attorneys' fees incurred by that party in participating in
the arbitration process.
8.9. Acknowledgment of Consent to Arbitration. NOTICE: BY
INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT
OF THE MATTERS INCLUDED IN THE "RESOLUTION OF DISPUTES" PROVISION DECIDED BY
NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY
RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.
BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE
"RESOLUTION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTOOD THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION OF DISPUTES PROVISION TO
NEUTRAL ARBITRATION.
INITIALS OF EMPLOYER'S AUTHORIZED REPRESENTATIVE: /s/PM
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INITIALS OF EMPLOYEE:
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9. Miscellaneous.
9.1. Notices. Any notice under this Agreement shall be in
writing, and any written notice or other document shall be deemed to have been
duly 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 resulting 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.
9.2. Attorneys' Fees; Prejudgment Interest. If the services of
an attorney are required by any party to secure the performance hereof or
otherwise upon the breach or default of another party to this Agreement, or if
any judicial remedy or arbitration is necessary to enforce or interpret any
provision of this Agreement or the rights and duties of any person in relation
thereto, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and other expenses, in addition to any other relief to which such party
may be entitled. Any award of damages following judicial remedy or arbitration
as a result of the breach of this Agreement or any of its provisions shall
include an award of prejudgment interest from the date of the breach at the
maximum amount of interest allowed by law.
9.3. 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 or arbitration under this Agreement shall be the
County of Sacramento, California.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. Entire Agreement. This document constitutes the entire
agreement between the parties, all oral agreements being merged herein, and
supersedes all prior representations. 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.
9.9. 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.
9.10. Captions. All paragraph captions are for reference only
and shall not be considered in construing this Agreement.
FOOD EXTRUSION, INC. EMPLOYEE:
By: /s/ Xxxxxxxx Xxxxxx /s/ X.XX Cherukuri
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(Xxxxxxxx Xxxxxx) Xxxxxxxxx Xxxxxxx Reddy Sastry
Its: President Address:
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Exhibit A
(Labor Code Section 2870)
(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer ; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.
EXHIBIT B
(Employee's Prior Inventions)
