EMPLOYMENT AGREEMENT
Exhibit 10.3
This Employment Agreement (the “Agreement”) is entered into as August 16, 2010, between
Cereplast, Inc., a Nevada corporation, (the “Company”) and Xxxxxxx Xxxxxxx, an individual,
(“Employee”), with reference to the following:
WHEREAS, the Company wishes to employ Employee and Employee wishes to accept such employment
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the various covenants and agreements hereinafter set
forth, the parties hereto agree as follows:
1. Term of Employment. The Company hereby employs Employee and Employee accepts such
employment commencing on August 16, 2010 (the “Commencement Date”), and terminating two (2) years
from the date hereof (the “Original Termination Date”), unless sooner terminated as hereinafter
provided.
2. Services to be Rendered.
2.1 Duties. Employee shall be employed by the Company as Senior Vice President and
Chief Financial Officer with all of the duties, privileges and authorities usually attendant upon
such office. Employee will report directly to the Company’s Chief Executive Officer. This is a
full-time position located at the offices of the Company, except as travel to other locations may
be necessary to fulfill Employee’s responsibilities.
2.2 Exclusive Services. Employee shall at all times faithfully, industriously and to
the best of her ability, experience and talents perform to the satisfaction of the Board of
Directors and such officer(s) of the Company to whom employee shall report, all of the duties that
may be assigned to her hereunder, and shall devote her full working time to the performance of
these duties as may be necessary therefor. The foregoing shall not be construed to prohibit
Employee from engaging in other industry related activities or managing her own personal
investments.
3. Compensation and Benefits. The Company shall pay the compensation and benefits set
forth on Schedule A, attached hereto and incorporated herein by this reference to Employee during
the term hereof, and Employee shall accept the same as payment in full for all services rendered by
Employee to or for the benefit of the Company.
4. Termination.
4.1 Death or Total Disability of Employee. If Employee dies or becomes totally
disabled during the term of this Agreement, Employee’s employment hereunder shall automatically
terminate. For these purposes Employee shall be deemed totally disabled if Employee shall become
physically or mentally incapacitated or disabled or otherwise unable fully to discharge Employee’s
duties hereunder for a period of ninety (90) consecutive calendar days or for 120 calendar days in
any 180 calendar-day period.
1
4.2 Termination for Good Cause. Employee’s employment hereunder may be terminated by
the Company for “good cause.” The term “good cause” is defined as any one or more of the following
occurrences:
(i) Employee’s conviction by, or entry of a plea of guilty or nolo contendere in, a court of
competent and final jurisdiction for any crime involving moral turpitude or punishable by
imprisonment in the jurisdiction involved;
(ii) Employee’s commission of an act of fraud or embezzlement upon the Company’s funds,
whether prior to or subsequent to the date hereof;
(iii) Employee’s refusal to perform, or continuing repeated failures to perform, Employee’s
duties as required by this Agreement (including, without limitation, Employee’s inability to
perform Employee’s duties hereunder as a result of chronic alcoholism or drug addiction and/or as a
result of any failure to comply with any laws, rules or regulations of any governmental entity with
respect to Employee’s employment by the Company);
(iv) Employee’s gross negligence, insubordination or material violation of any duty of loyalty
to the Company or any other material misconduct on the part of Employee;
(v) Employee’s commission of any act which is detrimental to the Company’s business or
goodwill; or
(vi) Employee’s breach of any other provision of this Agreement, provided that termination of
Employee’s employment pursuant to this subsection (vi) shall not constitute valid termination for
good cause unless Employee shall have first received written notice from an officer of the Company
stating with specificity the nature of such breach and affording Employee at least five (5) days to
correct the breach alleged.
4.3 Termination by the Employee for Good Reason. Employee may terminate her
employment with the Company for Good Reason (as defined below). Any of the following shall
constitute “Good Reason” for the purposes of this Agreement: (i) removal of the employee from her
position as Chief Financial Officer (or relocation of the Employee’s principal place of employment
to a location this is more than 50 miles from the current location.
5. General Relationship. Employee shall be considered an employee of the Company
within the meaning of all federal, state and local laws and regulations including, but not limited
to, laws and regulations governing unemployment insurance, workers’ compensation, industrial
accident, labor and taxes.
6. Miscellaneous.
6.1 Modification; Prior Claims. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing agreements between
them concerning such subject matter, and may be modified only by a written instrument duly executed
by each party.
2
6.2 Assignment. The rights of the Company under this Agreement may, without the
consent of Employee, be assigned by the Company, in its sole and unfettered discretion, to any
person, firm, corporation or other business entity which at any time, whether by purchase, merger
or otherwise, directly or indirectly, acquires all or substantially all of the assets or business
of the Company.
6.3 Survival. The covenants, agreements, representations and warranties contained in
or made pursuant to this Agreement shall survive Employee’s termination of employment.
6.4 Third-Party Beneficiaries. This Agreement does not create, and shall not be
construed as creating, any rights enforceable by any person not a party to this Agreement other
than Employee’s spouse, if applicable.
6.5 Waiver. The failure of either party hereto at any time to enforce performance by
the other party of any provision of this Agreement shall in no way affect such party’s rights
thereafter to enforce the same, nor shall the waiver by either party of any breach of any provision
hereof be deemed to be a waiver by such party of any other breach of the same or any other
provision hereof.
6.6 Hiring At Will. Any continuance of Employee’s employment by the Company after the
term hereof shall be deemed a hiring at will (unless such continuance is the subject of a new
written agreement) and shall be subject to termination with or without cause by either party upon
delivery of notice thereof.
6.7 Section Headings. The headings of the several sections in this Agreement are
inserted solely for the convenience of the parties and are not a part of and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
6.8 Notices. All notices, requests and other communications hereunder shall be in
writing and shall be delivered by courier or other means of personal service (including by means of
a nationally recognized courier service or professional messenger service), or sent by telex or
telecopy or mailed first class, postage prepaid, by certified mail, return receipt requested, in
all cases, addressed to:
Company: | ||||||
Cereplast, Inc. | ||||||
000 Xxxxx Xxxxxxxxxxx, Xxxxx #000 | ||||||
Xx Xxxxxxx, Xxxxxxxxxx 00000 | ||||||
Employee: | ||||||
With a copy to: | ||||||
3
All notices, requests and other communications shall be deemed given on the date of actual receipt
or delivery as evidenced by written receipt, acknowledgement or other evidence of actual receipt or
delivery to the address. In case of service by telecopy, a copy of such notice shall be personally
delivered or sent by registered or certified mail, in the manner set forth above, within three
business days thereafter. Any party hereto may from time to time by notice in writing served as
set forth above designate a different address or a different or additional person to which all such
notices or communications thereafter are to be given.
6.9 Severability. All Sections, clauses and covenants contained in this Agreement are
severable, and in the event any of them shall be held to be invalid by any court, this Agreement
shall be interpreted as if such invalid Sections, clauses or covenants were not contained herein.
6.10 Governing Law and Venue. This Agreement is to be governed by and construed in
accordance with the laws of the State of California applicable to contracts made and to be
performed wholly within such State, and without regard to the conflicts of laws principles thereof.
Any suit brought hereon shall be brought in the state or federal courts sitting in Los Angeles,
California, the parties hereto hereby waiving any claim or defense that such forum is not
convenient or proper. Each party hereby agrees that any such court shall have in personam
jurisdiction over it and consents to service of process in any manner authorized by California law.
Company and Employee shall, in good faith, first attempt to resolve any dispute, controversy or
claim arising out of or relating to this Agreement (collectively, a “Dispute”) by face-to-face
negotiations. If any such Dispute is not resolved within 60 days after such negotiations begin (or
at such later date, if the parties agree to continue negotiations), such Dispute shall be subject
to non-binding arbitration held in Los Angeles, California by one (1) independent mutually agreed
upon arbitrator in accordance with the applicable portions of the California Code of Civil
Procedure relating to arbitration, as then in effect. The arbitrator will have authority to award
relief under legal or equitable principles, including interim or preliminary relief, and to
allocate responsibility for the costs of the arbitration and to award recovery of attorneys’ fees
and expenses in such manner as is determined to be appropriate by the arbitrator. Judgment upon
the award rendered by the arbitrator may be entered in any court having personal and subject matter
jurisdiction.
6.11 Non-transferability of Interest. None of the rights of Employee to receive any
form of compensation payable pursuant to this Agreement shall be assignable or transferable except
through a testamentary disposition or by the laws of descent and distribution upon the death of
Employee. Any attempted assignment, transfer, conveyance, or other disposition (other than as
aforesaid) of any interest in the rights of Employee to receive any form of compensation to be made
by the Company pursuant to this Agreement shall be void.
4
6.12 Attorneys’ Fees. If any legal action, arbitration or other proceeding is brought
for the enforcement of this Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys’ fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
6.13 Gender. Where the context so requires, the use of the masculine gender shall
include the feminine and/or neuter genders and the singular shall include the plural, and vice
versa, and the word “person” shall include any corporation, firm, partnership or other form of
association.
6.14 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
Agreement.
6.15 Construction. The language in all parts of this Agreement shall in all cases be
construed simply, according to its fair meaning, and not strictly for or against any of the parties
hereto. Without limitation, there shall be no presumption against any party on the ground that
such party was responsible for drafting this Agreement or any part thereof.
6.16 Conditions. This Agreement is expressly made subject to satisfactory completion
of references, degree verifications, and possible background checks, all as determined by the
Company, in its sole discretion.
6.17 Agreement. This Agreement sets forth the terms of Employer employment with the
Company and supersedes any prior representations or agreements between Employee and the Company,
whether written or oral. This Agreement may not be modified or amended except by a written
agreement, signed by an officer of the Company and by Employee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date hereinabove set forth.
THE COMPANY Cereplast, Inc., a Nevada corporation |
||||
By: Xxxxxxxx Xxxxxx | ||||
Its: Chief Executive Officer | ||||
EMPLOYEE | ||||
Xxxxxxx Xxxxxxx | ||||
[Print Name] |
5
SCHEDULE A
A.1 Compensation. Employee will receive an initial annual base salary of $180,000
(“Base Salary”), payable biweekly, increasing to $215,000 upon the Company reaching operating cash
flow breakeven point, and further increasing to $250,000 once the Company has declared a profit of
more than $100,000 for a single quarter. Employee will be eligible for an annual bonus (“Bonus”) to
be based upon performance against certain agreed upon goals and benchmarks of performance, as
established by the Chief Executive Officer of the Company, with a total targeted payout at forty
percent (40%) of Base Salary. Such Bonus to be paid annually in the first quarter of the calendar
year at a rate of fifty percent (50%) in cash (“Cash Portion”) and fifty percent (50%) paid in
Company restricted stock (“Stock Portion”). It shall be a condition of payment of the Bonus, that
Employee be an employee of Company on and as of the date the Bonus is paid. Such Bonus will be
payable by the Company only when the Company has reached cash flow breakeven point
A.2 Fringe Benefits. In addition to the Base Salary to which Employee is entitled
pursuant to Section A.1, Employee shall be entitled to the following benefits:
(1) Employee will receive the grant of $75,000 in Cereplast restricted stock (“Stock”), which
shall be become vested on the Employee’s Commencement Date and an additional grant of $20,000 in
Stock, 50% of which shall become vested immediately and 50% shall become vested on the sixth month
anniversary of the Employee’s Commencement Date (“Initial Grant”). This Initial Grant of Stock
will be restricted until such time as Employee leaves the employment of Company and will be further
subject to all of the terms and conditions applicable to Stock granted under any Company Stock Plan
(the “Plan”), if any, adopted by Company, from time to time, and as described in such Plan,
including without limitation, accelerated vesting of any unvested Stock upon a change of control
(as defined in the Plan), followed by termination of Employee’s employment without “good cause” or
Employee resigning with “good reason” within twelve (12) months of such change in control;
(2) As a full-time Company employee, Employee is eligible to participate in the Company’s
standard group benefits program, which includes a medical/dental plan, for which the Company will
responsible to pay seventy five percent (75%) of such premium for Employee, as well as the 401(k)
retirement plan, including a four percent (4%) Company match, up to the safe harbor plan
limitations set forth in such plan, effective on the first of the month ninety (90) days after
Employee’s Commencement Date; The 401 K plan of the Company is not effective as of the date of
signature of this Agreement and the CFO will be entitled to participate when such Plan will be
declared effective by the Company.
(3) An annual vacation with pay of not less than twenty (20) business days for the first five
(5) years of employment, accruing ratably per each month of service. Vacation shall accrue if
unused up to a maximum of twenty five (25) days;
(4) Sick leave and personal leave with pay of not less than five (5) days per annum;
Company Initials | Employee Initials |
6
(5) Available parking (not reserved) space at the Company’s corporate office location to be
used during normal business hours;
(6) Employee will receive a fixed amount equal to $650 per month on the last day of each
month during the term of her employment as reimbursement to the Employee on a non-accountable basis
of all expenses incurred by the Employee for the use of her automobile for Company Business
purposes, including, but not limited to mileage, depreciation, repairs, maintenance, gasoline, and
insurance. The employee shall not be entitled to any other reimbursement for the use of her
automobile for business purposes.
(i) (7) Employee shall also be covered by Company’s Directors and Officers liability
insurance.
(8) If Employee’s employment with Company is terminated without “good cause” (as defined in
the Agreement to which this Schedule A is attached), or Employee is forced to resign for “good
reason”, (as defined in the Agreement to which this Schedule A is attached), Company will pay
twelve (12) months’ Base Salary and Employee’s Cash Portion of that year’s unpaid Bonus.
A.3 Reimbursements. The Company shall reimburse and pay Employee for the
following:
(b) All customary and reasonable out-of-pocket expenses, including cell phone expenses and
professional dues expenses required to maintain her financial professional designations, incurred
in connection with the Company business and the performance of Employee’s duties hereunder.
A.4 Other Payments. The Employee will receive a onetime lump sum payment of $50,000
in cash when the Company declares a profit of more than $100,000 in a single quarter but no later
than April 1st, 2011. Payment of this amount shall be accelerated and due immediately in
the event of any of the following:
(a) The Employee is terminated for any reason;
Company Initials | Employee Initials |
7