VISUALANT, INCORPORATED AMENDED EMPLOYMENT AGREEMENT
Exhibit
10.21
VISUALANT, INCORPORATED
AMENDED EMPLOYMENT AGREEMENT
This
Amended Employment Agreement (this “Agreement”) is entered into as of
March 22, 2018 (the “Effective Date”), by and between
Visualant, Incorporated, a Nevada corporation (the
“Company”) and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (“Executive”) (together, the
“Parties” and
each, a “Party”). This Agreement amends and
restates the Employment Agreement between the Parties dated July 1,
2017.
1. Duties and Scope of
Employment.
(a) Position and Duties. Executive
will serve as the Executive Chairman of the Company (the
“Position”). As
of the Effective Date, Executive will render such services in the
performance of his duties, consistent with the Position, as will be
assigned to him by the Company’s Board of Directors (the
“Board”).
(b) Term. Executive shall initially
be employed in the Position for a period of one (1) year, beginning
on the Effective Date and ending on March 21, 2019 (the
“Initial Term”)
(subject to earlier termination as set forth in Section 2 and/or
Section 6 below); provided that the Initial Term shall
automatically be extended for additional one (1) year periods
unless either Party delivers written notice of such Party’s
intention to terminate this Agreement at least ninety (90) days
prior to the end of the Initial Term or renewal term, as the case
may be. The period during which Executive is employed by the
Company under this Agreement is referred to herein as the
“Employment
Term.”
(c) Obligations. During the
Employment Term, Executive will devote such time and attention as
is necessary to provide services to or on behalf of the Company
consistent with the Position and in accordance with the provisions
of this Agreement and will use good faith efforts to discharge his
obligations under this Agreement to the best of his ability and in
accordance with each of the Company’s corporate ethics
guidelines, conflict of interests policies and code of conduct as
may be in effect from time to time.
2. At-Will Employment. Executive
and the Company agree that Executive’s employment with the
Company constitutes “at-will” employment. Executive and
the Company acknowledge that this employment relationship may be
terminated at any time, upon written notice to the other Party,
with or without Cause (as defined below), at the option either of
the Company or Executive.
3. Compensation.
(a) Base Salary. As of the
Effective Date, the Company will initially pay Executive an
annualized base salary of $180,000 as compensation for his services
(such annual salary, as is then effective, to be referred to herein
as “Base
Salary”). The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices and be
subject to the usual required withholdings.
(b) Bonus. Executive may be
entitled to bonuses from time to time as determined by the Board of
Directors of the Company or its Compensation Committee in their
sole discretion (the “Bonus”). Bonuses, if any, will be
paid as soon as practicable after they have been determined, but
not later than thirty (30) days after they are determined, provided
that Executive is still employed by the Company at the time of
payment.
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(c) Equity Awards. Executive shall
be eligible for equity awards under the Company’s 2011 Stock
Incentive Plan (the “Plan”) or outside the Plan and the
agreement(s) by and between Executive and the Company thereunder
(collectively, the “Equity
Documents”). Any such awards shall be at the
discretion of the Company’s Board of Directors and/or
Compensation Committee.
4. Executive
Benefits.
(a) Generally. Executive will be
eligible to participate in accordance with the terms of all Company
employee benefit plans, policies and arrangements that are
applicable to other executive officers of the Company, as such
plans, policies and arrangements may exist from time to
time.
(b) Vacation. Executive will be
entitled to receive paid annual vacation in accordance with Company
policy for other senior executive officers, which shall not be less
than four (4) weeks per calendar year.
5. Expenses. The Company will
reimburse Executive for reasonable travel, entertainment and other
expenses incurred by Executive in the furtherance of the
performance of Executive’s duties hereunder (including
business related travel requested by the Company), in accordance
with the Company’s expense reimbursement policy as in effect
from time to time.
6. Termination of
Employment.
(a) Termination for Cause. The
Company may terminate this Agreement and Executive’s
employment at any time without prior notice for "Cause" (as defined
below) with no severance or other obligation to Executive, other
than (a) payment of the amount of unpaid earned Base Salary accrued
pursuant to Section 3(a), (b) unused vacation accrued to the date
of such termination, (c) any portion of a Bonus that may be owed
pursuant to Section 3(b) and (d) unreimbursed business expenses
required to be reimbursed to Executive in accordance with Section 5
and the Company’s expense reimbursement policy as in effect
from time to time. For purposes of this Agreement, "Cause" shall consist of (a) any act
of dishonesty or fraud by Executive in connection with his duties
which is materially detrimental to the Company, or intended to
result in his substantial personal enrichment; (b)
Executive's conviction or a plea of nolo contendre to a crime which the
Board reasonably believes has had or will have a materially
detrimental effect on the Company’s business or reputation;
(c) Executive's material breach of this Agreement if not
cured within thirty (30) days after written notice; (d)
Executive’s grossly negligent or willful misconduct that is
inconsistent with the Company’s then-established practices or
places the Company at material risk of significant liability; or
(e) Executive’s repeated failure to abide by the lawful
written policies and directives of the Board of Directors. A
resignation by Executive at any time after the occurrence of an
event that would constitute Cause for termination by the Company
shall be considered a termination by the Company for
Cause.
(b) Termination without Cause.
Subject to the obligations stated in Section 6(e), which shall
survive such termination, the Company may terminate this Agreement
and Executive’s employment, without Cause, at any time for
any reason, or no reason, and with or without notice during the
Employment Term.
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(c) Resignation by Executive for Good
Reason. Executive may terminate his employment and this
Agreement upon thirty (30) days written notice for “Good
Reason” (as defined below) and in such event Executive shall
be entitled to the severance provisions described in Section 6(e),
which shall survive such termination. For purposes of this
Agreement, "Good Reason"
shall consist of (a) a material diminution in Executive’s
compensation, office, title, or duties from the Effective Date of
this Agreement; (b) Executive is required by the Company to
relocate to a distance more than 30 miles from the Company’s
present location in Seattle, Washington; or (c) a Change of
Control; provided that Executive provides the Company with written
notice of his intent to terminate within 180 days following the
Change of Control. For purposes of this Agreement,
“Change of
Control” means any of the following events: (i)
consummation of any merger or consolidation of the Company in which
the Company is not the continuing or surviving corporation, or
pursuant to which shares of the Company’s common stock are
converted into cash, securities, or other property, if following
such merger or consolidation the holders of the Company’s
outstanding voting securities immediately prior to such merger or
consolidation own less than fifty percent (50%) of the outstanding
voting securities of the surviving corporation; (ii) consummation
of any sale, lease, exchange or other transfer, in one transaction
or a series of related transactions of all or substantially all of
the Company’s assets; or (iii) a change in ownership of the
Company’s capital stock as a result of which the owners of
the Company’s outstanding capital stock immediately prior to
the change own less than fifty percent (50%) of the Company’s
outstanding capital stock following such change.
(d) Voluntary Termination by Executive
without Good Reason. Executive may
terminate this Agreement without Good Reason by providing thirty
(30) days written notice. In such event, Executive shall be
entitled to pay or pay in lieu of notice, and the other
compensation as would be payable in the event of a termination
without Cause.
7. Severance Payments. In the
event Executive’s employment is terminated (a) by the Company
without Cause, or (b) by Executive for Good Reason, subject to the
conditions stated herein, the Company shall: (i) pay Executive
severance pay equal to twelve (12) months of his then-in-effect
Base Salary, which shall be payable in a lump sum within thirty
(30) days following the termination date; (ii) provide Executive
and those of his dependents who are eligible for benefits under the
terms of the Company’s then available health insurance plan
for a period of up to eighteen (18) months after the date of
termination. However, if Executive obtains coverage under another
employer’s health care plan within this eighteen (18) month
period, he agrees to notify Company within five (5) business days
of obtaining alternate coverage, and the Company’s
obligations to continue health insurance coverage will cease.
Notwithstanding the foregoing, the Company’s obligation to
provide the severance benefits hereunder is expressly conditioned
upon Executive’s execution of a release of all claims against
the Company, including, but not limited to those related to his
employment and/or termination (other than obligations owed under
this Section 7 and/or claims related to Executive’s status as
a shareholder).
8. Indemnification. Subject to
applicable law, Executive will be provided indemnification to the
maximum extent permitted by the Company’s directors and
officers insurance policies, if any, with such indemnification to
be on terms determined by the Board or any of its committees and
subject to the terms of any separate written indemnification
agreement. Executive has entered into a separate indemnity
agreement with the Company, and will be covered under any
Company’s policy of commercial general liability and
directors and officers liability insurance during Executive’s
employment and after termination of employment in each case to the
same extent as members of the Board.
9. Confidential Information.
Executive acknowledges that he has executed and agrees to be bound
by the Confidentiality Agreement between Executive and the Company
dated July 1, 2017 (the “Confidentiality
Agreement”).
10. Assignment. This Agreement will
be binding upon and inure to the benefit of (a) the heirs,
executors and legal representatives of Executive upon
Executive’s death, and (b) any successor of the Company. Any
such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. For
this purpose, “successor” means 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. None
of the rights of Executive to receive any form of compensation
payable pursuant to this Agreement may be assigned or transferred
except by will or the laws of descent and distribution. Any other
attempted assignment, transfer, conveyance, or other disposition of
Executive’s right to compensation or other benefits will be
null and void.
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11. Notices. All notices, requests,
demands and other communications called for hereunder will be in
writing and will be deemed given (a) on the date of delivery if
delivered personally; (b) one (1) day after being sent overnight by
a well-established commercial overnight service, or (c) four (4)
days after being mailed by registered or certified mail, return
receipt requested, prepaid and addressed to the Parties or their
successors at the following addresses, or at such other addresses
as the Parties may later designate in writing:
If to
the Company:
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Attention: Chief
Financial Officer
If to
Executive:
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12. Severability. If any provision
hereof becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable, or void, this Agreement will continue
in full force and effect without said provision.
13. Dispute
Resolution.
(a) The Parties agree
that any and all disputes, claims or controversies arising out of
or relating to this Agreement shall be submitted to JAMS, or its
successor, for mediation in Seattle, Washington, and if the matter
is not resolved through mediation, then it shall be submitted to
JAMS, or its successor, for final and binding arbitration in
Seattle, Washington pursuant to the clause set forth in Section (e)
below.
(b) Either Party may
commence mediation by providing to JAMS and the other Party a
written request for mediation, setting forth the subject of the
dispute and the relief requested.
(c) The Parties will
cooperate with JAMS and with one another in selecting a mediator
from the JAMS panel of neutrals and in scheduling the mediation
proceedings. The Parties agree that they will participate in the
mediation in good faith and that they will share equally in its
costs.
(d) All offers,
promises, conduct and statements, whether oral or written, made in
the course of the mediation by any of the Parties, their agents,
Executives, experts and attorneys, and by the mediator or any JAMS
Executives, are confidential, privileged and inadmissible for any
purpose, including impeachment, in any arbitration or other
proceeding involving the Parties, provided that evidence that is
otherwise admissible or discoverable shall not be rendered
inadmissible or non-discoverable as a result of its use in the
mediation.
(e) Either Party may
initiate arbitration with respect to the matters submitted to
mediation by filing a written demand for arbitration at any time
following the initial mediation session or at any time following 45
days from the date of filing the written request for mediation,
whichever occurs first (“Earliest Initiation Date”). The
mediation may continue after the commencement of arbitration if the
Parties so desire.
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(f) At no time prior to
the Earliest Initiation Date shall either Party initiate an
arbitration or litigation related to this Agreement except to
pursue a provisional remedy that is authorized by law or by JAMS
Rules or by agreement of the Parties. However, this limitation is
inapplicable to a Party if the other Party refuses to comply with
the requirements of Section (c) above.
14. Integration; Amendment. This
Agreement, together with the Confidentiality Agreement, and the
Equity Documents referenced herein, represents the entire agreement
and understanding between the Parties as to the subject matter
herein and supersedes all prior or contemporaneous agreements
whether written or oral. No waiver, alteration, or modification of
any of the provisions of this Agreement will be binding unless in a
writing and signed by duly authorized representatives of the
Parties hereto.
15. Waiver of Breach. The waiver of
a breach of any term or provision of this Agreement, which must be
in writing, will not operate as or be construed to be a waiver of
any other previous or subsequent breach of this
Agreement.
16. Headings. All captions and
Section headings used in this Agreement are for convenient
reference only and do not form a part of this
Agreement.
17. Tax Withholding. All payments
made pursuant to this Agreement will be subject to withholding of
applicable taxes.
18. Governing Law. This Agreement
and any disputes or claims arising hereunder will be construed in
accordance with, governed by and enforced under the laws of the
State of Washington without regard for any rules of conflicts of
law.
19. Acknowledgment. Executive
acknowledges that he has had the opportunity to discuss this matter
with and obtain advice from his private attorney, has had
sufficient time to, and has carefully read and fully understands
all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.
20. Counterparts. This Agreement
may be executed in counterparts, and each counterpart will have the
same force and effect as an original and will constitute an
effective, binding agreement on the part of each of the
undersigned.
21.
Board
Approval. This Agreement is
subject to the approval of the board of directors of the
Company.
(Signature
page follows)
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IN
WITNESS WHEREOF, each of the Parties has executed this Agreement,
in the case of the Company by a duly authorized officer, as of the
day and year written below.
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COMPANY:
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Visualant, Incorporated
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Date: April 10, 2018
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chief Executive Officer
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EXECUTIVE:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Date: April 10, 2018
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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