Exhibit 6.10
EMPLOYMENT AGREEMENT
FOOD EXTRUSION MONTANA, INC., a Montana corporation ("Employer"), and Xxx X.
Xxxxx ("Employee") agree 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 serve as the President
and Chief Operations Officer of the Company, and shall exercise
authority and assume such responsibilities as the Board of Directors of
the Company may prescribe. The employee shall serve as a Director of
the Company, if elected as such. A good faith effort by the Chairman of
the Board of the Company to nominate employee as a Director of Food
Extrusion, Inc. at its next shareholders meeting.
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 January
1, 1997, 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
two 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 One
Hundred Twenty-Five Thousand Dollars ($125,000) 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 three weeks
of vacation each calendar year. Employee's vacation shall accrue
at the rate of ten hours (10) hours per month but in no event
shall Employee's total accrued vacation exceed four (4) 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 six hundred
dollars ($600.00) 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 / Incentive Performance Bonus. Employee will be
eligible to participate in any Employee Stock Purchase Plan or
Stock Option Plan, and an Incentive Performance Bonus Program which
the Employer may adopt during the term of this Agreement. Employer
intends to adopt such plans prior to the expiration of this
Agreement, but makes no further representations as to the terms of
such plans or the dates such plans 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, to 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; or (v) 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; or (vi)
Employee's habitual misuse of alcohol, illegal narcotics, or
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 as defined in
section 5.2, 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. 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.
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., ss. 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 judgment 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:
---------
INITIALS OF EMPLOYEE:
--------
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 with respect to the subject matter herein, 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.
Dated: 3-19 , 1997
------------------------
FOOD EXTRUSION MONTANA, INC. EMPLOYEE:
By: /s/Xxxxxxxx Xxxxxx /s/ Xxx Xxxxx
-------------------- -------------
Xxxxxxxx Xxxxxx Xxx X. Xxxxx
Its: Chairman of the Board Address:
