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Title: |
Employment Agreement |
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Entities: |
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Date: |
2005 |
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Size: |
Preview shows 16KB of 123KB total |
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Price: |
$58 |
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ID: |
#1577286 |
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EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into by and between NutraCea,
a California corporation with principal address at 1261 Hawk's Flight Court, El
Dorado Hills, CA 95762 ("NutraCea") and Margie Adelman, an individual residing
at 4033 Bancroft Drive, El Dorado Hills California 95762 ("Employee") effective
as of January 25, 2005 ("Effective Date"), as follows:
1. Employment NutraCea wishes to employ Employee and Employee agrees to
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provide services for NutraCea on the terms and conditions set forth below.
2. Employment; Scope of Employment. Employee shall act as the Senior Vice
-----------------------------------
President of NutraCea The duties of Employee shall include but not be limited to
new business development, Investor Relations and Public Relations for the
Company. NutraCea reserves the exclusive right to modify and designate
Employee's specific duties from time to time in any manner consistent with
Employee's status as Senior Vice President. In the event of a merger or
acquisition of substantially all of the assets of NutraCea, a change of
Employee's title or supervisor shall not be deemed a material alteration to this
Agreement.
2.1 Best Efforts: Full Working Time. Employee agrees to
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devote her best efforts, attention, skill and experience to the performance of
Employee's duties all in accordance with the provisions of this Agreement.
Employee shall apply her entire full working time to performing these services.
2.2 Supervision and Direction of Services. All of Employee's
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services shall be under the supervision and direction of the Chief Executive
Officer and President of NutraCea and the Board of Directors of NutraCea.
2.3 Rules. Employee shall be bound by all the policies, rules and
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regulations of NutraCea now in force and by all such other policies, rules and
regulations in the normal course of business as may be hereafter implemented and
shall faithfully observe and abide by the same.
2.4 Exclusive Services. During the term of this Agreement and any
--------------------
extension of this Agreement, Employee shall not, directly or indirectly, whether
as a partner, employee, creditor, five percent (5%) shareholder, independent
contractor or otherwise, promote, participate or engage in any activity or other
business which NutraCea deems in its sole reasonable discretion to be
competitive in any way with NutraCea's current or future business operations.
Employee agrees that Employee shall not enter into an agreement to establish,
form, contract with or become employed by a competing business of NutraCea while
Employee is employed by NutraCea.
1
2.5 Non-Solicitarion/Non-Compete.
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2.5.1 Non-Solicitation. To the fullest extent permissible
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under applicable law, Employee agrees that both during the term of this
Agreement and for a period of two (2) years following termination of this
Agreement, Employee shall not take any action to induce employees or independent
contractors of NutraCea to sever their relationship with NutraCea and accept an
employment or an independent contractor relationship with any other business.
2.5.2 Non-Compete. To the fullest extent permissible under
------------
applicable law, Employee agrees to refrain from, unless first obtaining
NutraCea's prior written consent, directly or indirectly, engaging in, being
employed by, being associated with, being under contract with, owning,
managing, operating, joining, controlling, or participating in the
ownership, management, operation, or control of, being connected in any manner
with, or having any interest in, any business, firm, sole proprietorship,
partnership or corporation that engages in substantially the same business as
NutraCea in the United States for a period of two (2) years after termination of
this Agreement.
2.5.3 Separate Covenants. Employee acknowledges that the
--------------------
nature and periods of restrictions imposed by the covenants contained herein are
fair, reasonable, and that the Company would sustain great and irreparable loss
and damage if Employee in any manner were to breach any of such covenants.
Accordingly, in the event of an actual or threatened breach of the covenants by
Employee, in addition to all other remedies which NutraCea may have, NutraCea
shall be entitled to enforce the specific performance of this Agreement and to
seek both immediate, temporary and permanent injunctive relief (to the extent
permitted by law) restraining such actual or threatened breach . Employee waives
any requirement that NutraCea post any bond or other security in order to obtain
such injunctive relief. It is understood by and between the parties hereto
that the covenants contained in this Agreement shall be deemed to be a series of
separate covenants, one for each line of business engaged in by NutraCea. Each
separate covenant shall hereinafter be referred to as "separate covenant." If
any court or tribunal of competent jurisdiction shall refuse to enforce one or
more of the separate covenants because the time limit applicable thereto is
deemed unreasonable, it is expressly understood and agreed that such separate
covenant or separate covenants shall not be void but that for the purpose of
such proceedings and such time limitation shall be deemed to be reduced to the
extent necessary to permit the enforcement of such separate covenant or separate
covenants. If any court or tribunal of competent jurisdiction shall refuse to
enforce any or all of the separate covenants because, taken together, they are
more extensive (whether as to geographic area, scope of business or otherwise)
than is deemed to be reasonable, it is expressly understood and agreed between
the parties hereto that such separate covenant or separate covenants shall not
be void but that for the purposes of such proceedings, the restrictions
contained therein (whether as to geographic area, scope of business or
otherwise) shall be deemed to be reduced to the extent necessary to permit the
enforcement of such separate covenant or separate covenants.
2.6 Office Location. Employee shall primarily perform her duties
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under this Agreement at NutraCea's offices in the Sacramento metropolitan area.
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3. Term and Termination: Payments upon Termination.
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3.1 Term and Termination. Unless earlier terminated for Cause (as
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defined below), NutraCea hereby employs the Employee for a period commencing
upon the Effective Date and ending three (3) years from the Effective Date (the
"Term").
3.1.1 Termination for Cause. For purposes of this section "Cause"
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shall be defined as the following:
a. NutraCea may immediately terminate Employee's
employment pursuant to the terms of this Agreement for
the following reasons by giving written notice of the
termination to Employee:
i. Employee, in the reasonable determination of
the Board of Directors of NutraCea, has found the
Employee to be grossly negligent or engaged in
material willful or gross misconduct in the
performance of her duties; and only if the Board
has filed a civil lawsuit for the same claim, or
ii. Employee has been convicted by a court of law
of fraud, moral turpitude, embezzlement, theft, or
dishonesty or other criminal conduct; or
iii. Employee has taken other actions or omitted
to take any actions such that such action or
omissions constitute legal cause for termination
under California law, as then in effect,
b. NutraCea may terminate Employee's employment
pursuant to the terms of this Agreement upon Employee's
failure to cure the deficiency within ten (10) days of
receipt of written notice from NutraCea for the
following reasons:
i. Employee has materially breached the terms
hereof; or
ii. Employee has failed to meet written standards
established by NutraCea for the performance of
duties hereunder;
3.2 Payments Upon Termination.
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3.2.1 For Cause. Following any termination by NutraCea for Cause.
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Employee shall be entitled to receive in cash payment an amount equal to all
previously accrued but unpaid or unused compensation, including but not limited
to. salary, vacation pay and Employee may retain the vested portion of any stock
and warrants properly and duly granted to Employee as of such date, subject and
pursuant to the terms of the
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warrant agreements or stock purchase agreements entered into between NutraCea
and Employee;
3.2.2 Without Cause. Following any termination by NutraCea without
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Cause, Employee (or Employee's estate) shall be entitled to receive in cash
payment an amount equal to all previously accrued but unpaid or unused
compensation, including but not limited to, salary, bonus, vacation pay and a
lump sum payment equal to twelve (12) months of Employee's salary at the time of
termination. Subject to the terms and conditions of any warrant agreements or
stock purchase agreements, Employee may retain the vested portion of any stock
and warrants properly and duly granted to Employee as of such date. All warrants
will vest pursuant to the terms of this Agreement between NutraCea and Employee.
All warrants will vest and remain exercisable for period of ten (10) years from
the effective date of this Agreement.
3.2.3 Death or Disability. Upon the death or disability of the
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Employee, the Employee shall be entitled to and NutraCea will pay Employee or
Employee's estate any accrued but unpaid amounts due to Employee under the terms
of this Agreement through the date of death or disability (For purposes of this
Section, "disability" shall mean that for a period of three (3) months in any
12-month period the Employee is incapable of substantially fulfilling her duties
because of physical, mental or emotional incapacity from injury, sickness or
disease. In the event of Employee's disability, Employee shall be entitled to
receive a lump sum severance payment equal to twelve (12) months of Employee's
salary, reduced only by disability payments received by Employee from long term
disability insurance maintained by NutraCea. In addition, should the Employee be
rendered disabled, NutraCea will continue to maintain for the benefit of the
Employee for a period of six (6) months from the date of the termination due to
disability, all benefit programs referred to in Section 4.3 that were in effect
on the date of the disability.
Employee's Initials MA NutraCea's Initials
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4. Compensation: Benefits.
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4.1 Salary. Employee shall be paid at a rate, which if annualized,
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equals one hundred fifty thousand dollars ($150.000) per year subject to normal
payroll withholdings and NutraCea's standard payroll practices. On a yearly
basis, at "NutraCea's sole discretion, Employee's salary shall be re-evaluated
pursuant to market conditions and NutraCea's business condition.
4.2 Warrants. NutraCea shall grant to Employee warrants to purchase up
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to one million (1.000,000) shares of NutraCea's common stock pursuant to the
terms and conditions of a Warrant Agreement, in the form attached hereto as
Exhibit A-l ("Warrant Agreement"). Such warrants shall vest according to the
terms of the Warrant Agreement and the warrants may be exercised by cashless
exercise pursuant to the terms and conditions of the Warrant Agreement. The
Exercise Price (as defined in the Warrant Agreement) shall be equal to thirty
cents ($.30) per share. Subject to the terms of the
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Warrant Agreements, all warrants shall be exercisable for a period of ten (10)
years from the Effective Date.
In addition, Employee shall be granted warrants to purchase up to one million
(1,000,000) shares of NutraCea's common stock pursuant to the terms and
conditions of a Warrant Agreement, attached hereto as Exhibit A-2 at an exercise
price of thirty cents ($.30) per share. These warrants shall fully vest upon
NutraCea reporting annual gross sales of Twenty Five Million Dollars
($25,000,000) or more and the Company reports a positive EBITDA. For purposes of
the foregoing, the calculation of EBITDA shall not include noncash charges.
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