EMPLOYMENT AGREEMENT
This
Employment Agreement (the “Agreement”) is entered into as of December 11, 2006,
by and between Amish Naturals, Inc., a Nevada corporation, (the “Company”) and
▇▇▇▇ ▇▇▇▇▇▇▇▇ (“Executive”). The parties hereto agree as follows:
1. Employment
and Duties.
The
Company shall employ Executive in the position of Vice President of Technical
Services of the Company (or such other senior executive position as may be
assigned to him by the Company’s Chief Executive Officer (“CEO”)). Executive
shall report directly to the CEO (or such other persons designated by the
Company’s CEO) and shall perform all duties and obligations of Vice President of
Technical Services (or such other senior executive duties assigned to Executive
from time to time by the Company’s CEO). Executive shall devote his full
business time, attention and energies exclusively to the business and interests
of the Company and to the performance of his duties and obligations under this
Agreement.
2. Term
of Agreement.
Subject
to the provisions of Section 4, Executive and the Company retain the right
to
terminate this Agreement at any time, for any reason or no reason, and with
or
without Cause (as defined in Section 4.1.1), and with or without notice. Nothing
in this Agreement shall be deemed to alter the at-will nature of Executive’s
employment with the Company, and the at-will nature of Executive’s employment
shall not otherwise be modified except in a writing signed by both Executive
and
the CEO of the Company. Notwithstanding the foregoing, the provisions of
Sections 5 and 10 of the Agreement shall survive, and continue in full force
and
effect, after any termination or expiration of this Agreement, irrespective
of
the reason for the termination or any claim that the termination was wrongful
or
illegal.
3. Compensation
and Other Benefits.
The
Company shall provide the following compensation and other benefits to Executive
in consideration of Executive’s performance of all of his obligations under this
Agreement:
3.1 Base
Salary.
Subject
to the provisions of Section 4, the Company shall pay to Executive an annual
base salary (the “Base Salary”) of $130,000.00, less applicable withholdings.
The Base Salary shall be payable in accordance with the Company’s ordinary
payroll practices in effect during the period of Executive’s employment with the
Company.
3.2 Incentive
Compensation.
For
each fiscal year of Executive’s employment with the Company, Executive shall be
eligible to earn a bonus (“Incentive Compensation”), the amount of which, if
any, shall be determined by the Board of Directors in its sole discretion.
During the first fiscal year of Executive’s employment with the Company,
Executive shall be eligible to earn Incentive Compensation, based on achieving
certain goals to be established by the Board of Directors. The Board of
Directors, in its sole discretion, shall determine Executive’s Incentive
Compensation, if any, for each fiscal year thereafter that Executive is employed
by the Company. Incentive Compensation, if any, shall be paid to Executive
within forty-five (45) days after the Company’s audited financial statements
have been issued for the fiscal year in which any such Incentive Compensation
was earned. Incentive Compensation will not be considered earned for a
particular fiscal year unless Executive is employed with the Company on October
1 immediately following the close of that fiscal year. Executive acknowledges
and agrees that if his employment with the Company is terminated pursuant to
Sections 4.1.1, 4.1.2, 4.2 or 4.3 below before the Incentive Compensation is
considered earned, Executive shall not be eligible for payment of Incentive
Compensation for the fiscal year in which the termination is effective.
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3.3 Stock
Option Plan.
Executive shall be eligible to participate in any stock option plan that may
be
adopted by the Company for its managerial employees and approved by the
Company’s Board of Directors in its sole and absolute discretion (“Proposed
Stock Option Plan”). The Company shall recommend to the Board of Directors that
Executive be granted, subject to compliance with all state and federal
securities laws and in accordance with the terms and conditions of the Proposed
Stock Option Plan, an option to purchase up to 100,000 shares of the common
stock authorized for issuance under the Proposed Stock Option Plan pursuant
to a
vesting schedule. The proposed form of grant and vesting schedule is attached
hereto as Exhibit A.
3.4 Fringe
Benefits.
As
additional compensation under this Agreement, Executive shall be entitled to
receive the following benefits (the “Fringe Benefits”):
3.4.1 Employee
Benefit Plans.
The
Company shall allow Executive to participate in such group medical, health,
pension, welfare, and insurance plans (the “Employee Benefit Plans”) maintained
by the Company from time to time for the general benefit of its executive
employees, as such Employee Benefit Plans may be modified from time to time
in
the Company’s sole and absolute discretion.
3.4.2 Other
Benefits.
The
Company shall provide Executive with all other benefits and perquisites as
are
made generally available to the Company’s executive employees under the
Company’s Employee Handbook, as such Employee Handbook may be modified from time
to time in the Company’s sole and absolute discretion.
3.4.3 Moving.
Executive shall receive a lump sum of $30,000 to cover all expenses related
to
relocation to Ohio, inclusive of work related expenses to Ohio from executive’s
current home. The amount will be paid to Executive after 60 days. During this
period the Company will reimburse the executive for all related expenses, the
remaining balance paid to the Executive after the 60 day period. The Executive
agrees to reimburse the Company in full if the Executive chooses to leave the
Company prior to 3 years from his or her start date.
3.4.4 Vacation.
Executive
shall be entitled to such vacation time as is generally made available to the
Company’s executive employees under the Company’s employment policies, as such
employment policies may be modified from time to time in the Company’s sole and
absolute discretion; provided, however, that in no event shall Executive accrue
vacation time at a rate which is less than three (3) weeks per year; provided
further, that Executive may not accrue more than two times Executive’s annual
vacation allotment. Executive will cease accruing vacation if Executive reaches
the maximum accrual amount, and will commence accruing vacation again only
after
Executive has used enough vacation to fall below the maximum.
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3.4.5 Reimbursement
of Business Expenses. The
Company shall reimburse Executive for all reasonable travel, entertainment
and
other expenses incurred by Executive in connection with the performance
of his duties under this Agreement, upon submission by Executive to Company
of
reasonable documentation pertaining to such expenses.
3.5 Deferred
Compensation.
Any
deferred compensation (within the meaning of Section 409A of the Internal
Revenue Code) payable under this Agreement on Account of Executive’s separation
from service shall not commence prior to six months following such separation
if
Executive is a key employee (within the meaning of Section 409A); provided,
however, that, in determining whether Executive is a key employee, any
compensation realized on account of the exercise of a stock option or a
disqualifying disposition of stock acquired through the exercise of an incentive
stock option shall be disregarded.
4. Termination
or Expiration of Agreement.
4.1 Termination
at Company’s Election.
The
Company may terminate Executive’s employment at any time, for any reason or no
reason, with or without Cause (as defined in Section 4.1.1), and with or without
notice, subject to the provisions of Sections 4.1.1 and 4.1.2.
4.1.1 Termination
for Cause.
If
Executive’s employment is terminated for Cause (as hereinafter defined),
Executive shall be entitled to receive only the following: (i) payment of
Executive’s Base Salary through and including the date of termination; (ii)
payment of any earned but unpaid Incentive Compensation for the prior fiscal
year pursuant to the terms of Section 3.2; (iii) payment for all accrued and
unused vacation time as of the date of termination; and (iv) reimbursement
of
business expenses incurred prior to the date of termination. Except as expressly
set forth in this Section 4.1.1, Executive shall not be entitled to receive
any
Base Salary, Incentive Compensation or Fringe Benefits in the event Executive’s
employment is terminated for Cause, except that Executive may continue to
participate in the Employee Benefit Plans to the extent permitted by and in
accordance with the terms thereof or as otherwise required by law. As used
in
this Agreement, Cause shall be defined as: (a) a material breach by Executive
of
any term of this Agreement; (b) an intentional refusal or failure to follow
the
lawful and reasonable instructions of the CEO or an individual to whom the
CEO
instructed the Executive to report (as appropriate); (c) a willful or habitual
neglect of duties; (d) misconduct on the part of Executive that is materially
injurious to the Company, including, without limitation, misappropriation of
trade secrets, fraud or embezzlement; or (e) Executive’s conviction for fraud,
theft or a felony involving moral turpitude. In the case of clauses (a) through
(c), Executive fails to cure such breach within thirty (30) days of Executive’s
receipt of written notice from the Company; provided,
however,
that
such cure period shall not be applicable if, in the case of clause (a), the
Company, in its sole discretion, has determined that such breach is not capable
of being fully cured; provided,
further,
that,
upon the second occurrence of a breach of under clauses (a) through (c), no
such
cure period need be extended to Executive.
4.1.2 Termination
Without Cause.
If
Executive is terminated by the Company without Cause, Executive shall receive:
(i) payment of Executive’s Base Salary through and including the date of
termination; (ii) payment of any earned but unpaid Incentive Compensation for
the prior fiscal year pursuant to the terms of Section 3.2; (iii) payment for
all accrued and unused vacation time existing as of the date of termination;
and
(iv) reimbursement of business expenses incurred prior to the date of
termination. In addition, Executive shall be eligible to receive a severance
payment based on Executive’s length of service, less applicable withholdings,
provided Executive signs a general release of all claims in a form approved
by
the Company. The amount of any severance payment shall be based upon the
following schedule:
|
Length
of Service
|
Equivalent
Months of Base Salary
|
|
|
Up
to 12 months
|
6
months
|
|
|
More
than 12 months up to 2 years
|
8
months
|
|
|
More
than 2 years up to 3 years
|
10
months
|
|
|
More
than 3 years
|
1
year
|
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4.2 Termination
upon Death or Permanent Disability.
This
Agreement will terminate automatically on Executive’s death or if Executive
becomes Permanently Disabled (as defined below). In the event of such
termination, Executive, or his beneficiary or estate, shall be entitled to
receive such amounts of the Base Salary, Incentive Compensation and Fringe
Benefits as would have been payable to Executive under a termination without
Cause under Section 4.1.2 as of the date of death or the date as of which the
Company has determined in its sole discretion that Executive has become
Permanently Disabled. As used in this Agreement, “Permanently Disabled” shall
mean the incapacity of Executive due to illness, accident, or any other reason
to perform his duties for a period of 90 calendar days, whether or not
consecutive, during any 12-month period, all as determined by the Company in
its
sole discretion. All Company determinations as to the date and extent of
incapacity of Executive shall be made by the Company, upon the basis of such
evidence, including independent medical reports and data, as the Company in
its
sole discretion deems necessary and desirable. All such determinations of the
Company shall be final.
4.3 Termination
at Executive’s Election.
Executive
may resign from employment with the Company for any reason by providing written
notice to the Company prior to the date selected for resignation. If Executive
resigns from employment, Executive shall be entitled to receive only the
following: (i) payment of Executive’s Base Salary through and including the date
of resignation; (ii) payment
of any earned but unpaid Incentive Compensation for the prior fiscal year
pursuant to the terms of Section 3.2; (iii) payment
for all accrued and unused vacation time existing as of the date of resignation,
which will be made at a rate calculated in accordance with Executive’s Base
Salary at the time of resignation; and (iv) reimbursement of business expenses
incurred prior to the date of resignation. Except as expressly set forth in
this
Section 4.3, in the event Executive resigns from employment, Executive shall
not
be entitled to receive any Base Salary, Incentive Compensation, Fringe Benefits
or other times, except that Executive may continue to participate in the
Employee Benefit Plans to the extent permitted by and in accordance with the
terms thereof or as otherwise required by law.
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4.4 Exercise
of Stock Options Upon Termination.
Any
options granted to Executive pursuant to the Proposed Stock Option Plan as
set
forth in Section 3.3 shall cease vesting on the date of termination of
Executive’s employment, and, to the extent vested on the date of termination and
not previously exercised or expired, may be exercised by Executive in accordance
with the terms and conditions of the Proposed Stock Option Plan.
5. Confidential
Information and Return of Company Property.
5.1 Confidential
Information, Inventions, Non-Solicitation.
Executive acknowledges and agrees to comply with all of the terms of the
Employee Confidentiality and Non-Disclosure Agreement (“Confidentiality
Agreement”) executed by Executive, attached hereto as Exhibit B, during
Executive’s employment with the Company and thereafter as provided in the
Confidentiality Agreement.
5.2 Company
Property.
Upon
the termination of Executive’s employment with the Company at any time and for
any reason, or upon the Company’s request at any time and for any reason,
Executive shall promptly return all Company property to the Company, without
keeping any copy of any such Company property for himself or any other entity
or
individual.
6. Representation
and Warranties.
Executive represents and warrants to the Company that Executive is under no
contractual or other restriction or obligation that is materially inconsistent
with the execution of this Agreement, the performance of his duties hereunder,
or the rights of the Company hereunder, including, without limitation, any
development agreement, non-competition agreement or non-disclosure or
confidentiality agreement previously entered into by Executive.
7. Severability.
In the
event that any provision of this Agreement should be held to be void, voidable,
unlawful or for any reason unenforceable, the remaining provisions or portions
of this Agreement shall remain in full force and effect.
8. Amendment
and Waiver.
No
provision of this Agreement can be modified, amended, supplemented or waived
in
any manner except by an instrument in writing signed by both Executive and
the
CEO of the Company. The waiver by either party of compliance with any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any other provision of this Agreement, or of any subsequent breach
by
such party of any provision of this Agreement.
9. Applicable
Law.
This
Agreement, Executive’s employment relationship with the Company, and any and all
matters or claims arising out of or related to this Agreement or Executive’s
employment relationship with the Company, shall be governed by, and construed
in
accordance with, the laws of the State of Ohio, regardless of the choice of
law
provisions of Ohio or any other jurisdiction.
10. Arbitration.
10.1 Exclusive
Remedy.
Except
as set forth in Section 10.3, arbitration shall be the sole and exclusive remedy
for any dispute, claim, or controversy of any kind or nature (a “Claim”) arising
out of, related to, or connected with this Agreement, Executive’s employment
relationship with the Company, or the termination of Executive’s employment
relationship with the Company, including any Claim against any parent,
subsidiary, or affiliated entity of the Company, or any director, officer,
employee, or agent of the Company or of any such parent, subsidiary, or
affiliated entity. It also includes any claim against the Executive by the
Company, or any parent, subsidiary or affiliated entity of the
Company.
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10.2 Claims
Subject to Arbitration.
Excepting only claims excluded in Section 10.3 below, this Agreement
specifically includes (without limitation) all claims under or relating to
any
federal, state or local law or regulation prohibiting discrimination, harassment
or retaliation based on race, color, religion, national origin, sex, age,
disability or any other condition or characteristic protected by law; demotion,
discipline, termination or other adverse action in violation of any contract,
law or public policy; entitlement to wages or other economic compensation;
any
Claim for personal, emotional, physical, economic or other injury; and any
Claim
for business torts or misappropriation of confidential information or trade
secrets.
10.3 Claims
Not Subject to Arbitration.
This
Section 10 does not preclude either party from making an application to a court
of competent jurisdiction for provisional remedies (e.g., temporary restraining
order or preliminary injunction). This Agreement also does not apply to any
claims by Executive: (i) for workers’ compensation benefits; (ii) for
unemployment insurance benefits; (iii) under a benefit plan where the plan
specifies a separate arbitration procedure; (iv) filed with an administrative
agency which are not legally subject to arbitration under this Agreement; or
(v)
which are otherwise expressly prohibited by law from being subject to
arbitration under this Agreement.
10.4 Procedure.
The
arbitration shall be conducted in the County of ▇▇▇▇▇▇, Ohio. Any Claim
submitted to arbitration shall be decided by a single, neutral arbitrator (the
“Arbitrator”). The parties to the arbitration shall mutually select the
Arbitrator not later than 45 days after service of the demand for arbitration.
If the parties for any reason do not mutually select the Arbitrator within
the
45 day period, then any party may apply to any court of competent jurisdiction
to appoint a retired judge as the Arbitrator. The arbitration shall be conducted
in accordance with Ohio Revised Code Annotated sections 2711.01 through 2711.16,
as amended, except as modified by this Agreement. The Arbitrator shall apply
the
substantive federal, state, or local law and statute of limitations governing
any Claim submitted to arbitration. In ruling on any Claim submitted to
arbitration, the Arbitrator shall have the authority to award only such remedies
or forms of relief as are provided for under the substantive law governing
such
Claim. The Arbitrator shall issue a written decision revealing the essential
findings and conclusions on which the decision is based. Judgment on the
Arbitrator’s decision may be entered in any court of competent
jurisdiction.
10.5 Costs.
Executive shall only pay that portion of the fees and costs incurred in the
arbitration (e.g.,
filing
fees and transcript costs) that he would normally pay in the course of
litigation. All other fees and costs, including the Arbitrator’s fees, shall be
borne by the Company. The parties shall be responsible for their own attorneys’
fees and costs, except that the Arbitrator shall have the authority to award
attorneys’ fees and costs to the prevailing party in accordance with the
applicable law governing the dispute.
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10.6 Interpretation
of Arbitrability.
The
Arbitrator, and not any federal or state court, shall have the exclusive
authority to resolve any issue relating to the interpretation, formation or
enforceability of this Section 10, or any issue relating to whether a Claim
is
subject to arbitration under this Section 10, except that any party may bring
an
action in any court of competent jurisdiction to compel arbitration in
accordance with the terms of this Section 10.
11. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter of this Agreement and supersedes all prior and contemporaneous
negotiations, understandings, or agreements between the parties, whether oral
or
written, expressed or implied.
12. Counterparts.
This
Agreement may be executed by the parties in counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
13. Headings.
The
headings of sections and Sections of this Agreement are included solely for
convenience of reference and shall not control the meaning or interpretation
of
any of the provisions of this Agreement.
14. Notices.
Any
notice required or permitted to be given under this Agreement shall be
sufficient if in writing, and if sent by certified or registered mail or
personally delivered to Executive at ▇▇▇▇ ▇ ▇▇▇▇▇.
▇▇▇.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ or to the Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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| By: | |||
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇
▇▇▇▇▇▇▇▇
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Its:
President and Chief Executive Officer
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