|
Exhibit
10.1
Execution Copy
EMPLOYMENT
AGREEMENT
This Employment Agreement
(this “Agreement”) is entered into as of March 7,
2008 (the “Effective Date”), by and between AMERICAN
VANGUARD CORPORATION, a Delaware corporation (the
“Company”), and DAVID JOHNSON (“Employee”)
to set forth the terms and conditions of the Company’s
employment of Employee.
NOW, THEREFORE, in
consideration of the mutual promises set forth herein and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1. Employment
.
(a) The Company hereby
employs Employee and Employee hereby accepts employment by the
Company pursuant to the terms and conditions of this
Agreement.
(b) Employee is engaged by
the Company with such title and capacity as set forth in the
Schedule of Responsibilities attached to this Agreement as
Schedule “A” (the “Schedule of
Responsibilities”). Employee shall fully, faithfully,
diligently and competently render the services and perform the
duties described in the Schedule of Responsibilities and such other
duties not inconsistent therewith that may be assigned to Employee
from time to time by the Company. Employee shall conform to and
comply with the lawful and reasonable directions and instructions
given to Employee by the Company.
(c) Employee shall devote
Employee’s full time, attention and energies to the business
of the Company during Company working hours. Employee shall use
Employee’s best efforts to further enhance and develop the
best interests and welfare of the Company. The Company shall be
entitled to all of the benefits, profits and other results arising
from or incident to all work, services and advice of
Employee.
(d) Employee shall not be
employed or engaged in any other business activity, whether or not
such activity is pursued for gain, profit, or other pecuniary
advantage, without the prior written consent of the
Company.
(e) The Company will advise
Employee of its corporate rules, policies and procedures then in
effect and as may be amended or adopted by the Company from time to
time in the Company’s sole and absolute discretion (the
“Company Policies”). Employee shall comply with all
Company Policies. If there are any inconsistencies between any term
of this Agreement and any of the Company Policies, this Agreement
shall govern and control.
2. Period of
Employment . Employee’s employment by the Company
shall be for a period of one (1) year, commencing on the
Effective Date and ending
-1-
not later than one (1) year after
the Effective Date, unless earlier terminated pursuant to
Section 6 of this Agreement (the “Employment
Period”). After the Employment Period, Employee shall be an
“at will” employee of the Company.
3. Compensation
. For services rendered to and duties performed by Employee for the
Company during the Employment Period pursuant to the terms and
conditions of this Agreement, the Company will offer to Employee
such compensation and benefits specifically set forth in the
Compensation Schedule attached to this Agreement as Schedule
“B” (collectively, the
“Compensation”).
4. Business
Expenses . The Company, pursuant to its Company Policies,
will reimburse Employee for reasonable and necessary expenses
incurred within the scope of Employee’s employment in
carrying out Employee’s services and duties under this
Agreement, provided that such expenses are (a) deductible by
the Company to the maximum extent permitted under the relevant
rules and regulations of the Internal Revenue Code,
(b) incurred and submitted for reimbursement in accordance
with the Company Policies, and (c) evidenced by itemized and
documented accounting of such expenditures.
5. Withholdings
. The Company shall deduct and withhold from all compensation
payable to Employee hereunder, including, without limitation, the
Compensation, all applicable federal, state and local income and
employment withholding taxes and any other amounts required to be
deducted or withheld by the Company under applicable statutes,
regulations, ordinances, or orders governing or requiring the
withholding or deduction of amounts otherwise payable as
compensation or wages to Employee.
6. Termination
.
(a) Termination for
Cause . The Company shall have the right to terminate
Employee’s employment for “Cause” (as defined
below) at any time, without prior notice. In the event of
termination of Employee’s employment for Cause, all rights of
Employee (and Employee’s dependents and legal
representatives) under Sections 1, 2 and 3 of this Agreement
shall cease as of the date of such termination. For purposes of
this Agreement, termination for “Cause” by the Company
will include a determination made by the Company in its discretion
that Employee:
(1) has been convicted of or
pled guilty or nolo contendere to (i) a felony or misdemeanor
involving moral turpitude that is likely to impair Employee’s
ability to perform under this Agreement or otherwise have a
significant adverse effect upon the Company, any of its affiliates,
or any of their businesses or reputations, or (ii) a felony or
misdemeanor which results in a term of incarceration in any
correctional institution;
-2-
(2) has committed or
conspired to commit an act of dishonesty, theft, gross
carelessness, or other misconduct against the Company or any of its
affiliates;
(3) has engaged in the use of
alcohol or any illegal drug or intoxicant, or distributed or
conspired to distribute any such substance, during working hours or
at any facilities of the Company or any of its
affiliates;
(4) has committed or
conspired to commit any act or series of acts that constitute
harassment or discrimination based on an unlawful
classification;
(5) has committed or
conspired to commit any act or series of acts without approval by
the Company’s Board of Directors which would likely have a
significant adverse effect on the Company, any of its affiliates,
or any of their businesses or reputations;
(6) has engaged in a willful
or negligent failure to perform duties or services for the
Company;
(7) has improperly used or
disclosed, or conspired to improperly use or disclose, confidential
or proprietary information of the Company or any of its affiliates;
or
(8) has committed any act or
omission that constitutes a material breach by Employee of any of
Employee’s obligations or agreements under this Agreement,
but only after the Company has provided notice of such breach to
Employee and Employee fails or refuses to correct such breach
within ten (10) days of such notice; provided, however, that
no prior notice is required for any event set forth in conditions
(1) through (7), inclusive, of this
Section 6(a).
(b) Termination Due to
Death or Disability . If Employee, due to physical or mental
disability or incapacity as determined by the Company in its
discretion, is unable to perform Employee’s duties under this
Agreement, the Company shall have the right to terminate
Employee’s employment on thirty (30) days’ prior
written notice. If Employee is able to and recommences rendering
services and performing Employee’s duties under this
Agreement within such thirty (30)-day notice period, such notice
shall be vitiated. In addition, in the event of Employee’s
death or disability, Employee or Employee’s personal
representatives, as the case may be, shall be entitled to receive
all earned but unpaid compensation through the date of termination
on a pro rated basis.
(c) Termination Without
Cause . Notwithstanding anything to the contrary, the Company
shall have the right to terminate Employee’s employment
without Cause or for any or no reason, at any time, effective
immediately upon notice to Employee. If the Company exercises its
rights under this Section 6(c)
-3-
during the Employment Period
and provided that Employee sign a release and waiver acceptable to
the Company in its discretion, the Company will pay to Employee as
severance, an amount equal to the Employee’s annual base
salary. In the event of termination of Employee’s employment
pursuant to this Section 6(c), all rights of Employee (and
Employee’s dependents and legal representatives) under
Sections 1, 2 and 3 of this Agreement shall cease as of the
date of such termination. Further, if the Company exercises its
rights under this Section 6(c) during the second full year of
employment and provided that Employee signs a release and waiver
acceptable to the Company in its discretion, the Company will pay
to Employee as severance an amount equal to the Employee’s
annual base salary. Notwithstanding anything to the contrary in the
foregoing, severance payment(s) made under this paragraph 6(c) are
intended to be in lieu of, and not in addition to any severance
payment made under the Change-in-Control Severance Agreement
attached hereto as Exhibit E. Thus, if Employee qualifies for a
severance payment under the Change-in-Control Severance Agreement,
then he shall not be entitled to payment for severance under this
paragraph.
7. Disclosures and
Assignment of Rights .
(a) Employee hereby agrees
promptly to disclose to the Company and Employee hereby, without
further compensation, assigns and agrees to assign to the Company
or its designees, Employee’s entire right, title, and
interest in and to all designs, trademarks, logos, business plans,
business models, business names, economic projections, product
innovations, discoveries, formulae, processes, manufacturing
techniques, trade secrets, customer lists, supplier lists,
inventions, research, improvements, ideas, know-how, patents,
service marks, and copyrightable works (collectively,
“Inventions”), including, without limitation, all
rights to obtain, register, perfect and enforce all Inventions,
which relate to Employee’s work for the Company, whether or
not during normal working hours, or which are aided by the use of
Company experience, time, material, equipment, or facilities; it
being understood, however, that no rights are hereby conveyed in
Inventions, if any, made by Employee prior to Employee’s
employment with the Company and disclosed pursuant to
Section 7(c) of this Agreement.
(b) Employee agrees to
perform, during and after the Employment Period, all acts deemed
necessary or desirable by the Company to permit and assist it, at
its reasonable expense, including execution of documents and
assistance and cooperation in legal proceedings, in obtaining and
enforcing the full benefits, enjoyments, rights and title in the
items assigned to the Company as set forth in Section 7(a) of
this Agreement.
(c) Except as specifically
set forth in the Disclosure of Inventions attached to this
Agreement as Schedule “C” (or if nothing is listed
therein), there are no Inventions that Employee wishes to exclude
from the operation of Section 7(a) or 7(b) of this
Agreement.
-4-
(d) Employee understands, and
hereby acknowledges having received notice, that Sections 7(a) and
(b) of this Agreement do not apply to an invention which
qualifies fully under the provisions of California Labor Code
Section 2780, which is substantially set forth in Schedule
“D” attached to this Agreement.
8. Conflicts of
Interest . Employee recognizes that Employee owes a primary
and fiduciary duty to the Company and that Employee shall not have
any interest, financial or otherwise, direct or indirect, or engage
in any business or transaction of any nature, which is in conflict
with the proper and faithful discharge of Employee’s duties
and services as an employee of the Company. Without limiting the
generality of the foregoing, Employee shall not, while employed by
the Company, directly or indirectly:
(a) be employed by or receive
any compensation from a customer, supplier or competitor of the
Company or any of its affiliates;
(b) have any ownership or
financial interest of any nature in a customer, supplier or
competitor of the Company or an of its affiliates, except where
such ownership is stock in a corporation and consists of less than
one percent (1%) of the outstanding capital stock of the
corporation and where such stock is publicly traded and listed on a
recognized stock exchange or actively traded in the
over-the-counter market;
(c) have or participate in
any dealings on behalf of the Company with a customer, supplier or
competitor of the Company or any of its affiliates that employs, or
more than five percent (5%) of whose ownership interest is
beneficially held by, Employee’s spouse or any brother,
sister, parent, child or grandchild of Employee or Employee’s
spouse, or any person living in Employee’s household or the
spouse of any of the foregoing persons;
(d) engage or participate in
any activity, business enterprise, business opportunity,
employment, occupation, consulting, or other business activity
which the Company shall reasonably determine to be, or reasonably
planned to be, in competition with the Company or any of its
affiliates, or to interfere with Employee’s duties as an
employee of the Company; or
(e) solicit, accept or
receive any gift having a value of Fifty Dollars ($50) or more,
whether in the form of money, service, loan, hospitality (except
for ordinary business meals), thing or promise, or in any other
form, under circumstances in which it could reasonably be inferred
that the gift was intended to influence Employee, in the
performance of Employee’s duties on behalf of the Company or
was intended as a reward for any action on Employee’s part on
behalf of the Company, unless such fact or activity is first fully
disclosed in writing to the Company and the Company first approves
in writing of such fact or activity.
-5-
9. Information of
Others . Employee certifies and acknowledges that Employee
will not disclose or utilize in Employee’s work with the
Company any secret or confidential information of others (including
any prior employers), or any inventions or innovations of
Employee’s own which are not included within the scope of
this Agreement.
10. Confidential
Information . The Company and/or one or more of its
affiliates may, from time to time, provide Employee with
confidential information, proprietary information, or trade secrets
regarding the Company and/or one or more of its affiliates,
including, without limitation, information regarding business
methods, plan, products, pricing, customer lists, and other
confidential customer information, including, but not limited to,
contact names, purchasing authority(ies), product, know-how and/or
customer service requirements, buying patterns and other
proprietary information (collectively, “Confidential
Information”). Except in furtherance of the Company’s
business and without the Company’s prior written consent,
Employee shall not, directly or indirectly, disclose, use,
communicate, appropriate, or exploit any Confidential Information
during the Employment Period and thereafter.
11.
Non-Solicitation . Upon termination of
Employee’s employment with the Company, for any reason
whatsoever, and regardless of whether the Company or Employee
initiated the separation, Employee shall not, for a period of two
(2) years from the date of termination, directly or
indirectly, solicit or in any other manner contact or deal with any
customer or client of the Company whom Employee serviced or had
contacts with as an employee of the Company during the Employment
Period for the purpose of offering or attempting to offer to said
customer or client any product or service similar to or competitive
with any product or service manufactured, sold, distributed, or
provided by the Company as of the date of Employee’s
termination, either as a principal, consultant, representative,
employee, or more than five percent (5%) stockholder. Employee
represents and warrants that Employee’s experience
|
