Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (the “Agreement”), made this 14
th
day of January, 2009
is entered into by Central Garden & Pet Company and/or any
of its wholly owned subsidiaries, successors and assigns
(collectively called “the Company”) and Glen R.
Fleischer (“Executive”).
WHEREAS, the Company desires to
employ Executive and Executive desires to become employed by the
Company;
THEREFORE, in consideration of the
mutual covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Effective Date: This
Agreement shall become effective on January 14, 2009,
(“Effective Date”).
2. Term of Employment :
Executive will be employed by the Company for an indefinite term,
subject to termination as set forth below.
3. Position: Executive shall
serve as President Pet Products Division. He shall perform those
duties and responsibilities consistent with such position that are
assigned to him by the Chief Executive Officer of the Company.
Executive’s position and related terms and conditions of
employment may from time to time be modified by the Company in its
discretion. .
4. Full Time Performance of
Duties: During the Term of Employment, except for periods of
absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive agrees to devote
substantially all his business time, attention, skill, and efforts
to the faithful and loyal performance of his duties under this
Agreement and shall not during his employment with the Company
engage in any other business activities, duties or pursuits, render
any services of a business, commercial, or professional nature to
any other person or organization, whether for compensation or
otherwise, without the prior written consent of Company. However,
the expenditure of reasonable amounts of time for educational,
charitable, or professional activities for which Executive will not
receive additional compensation from the Company, shall not be
considered a breach of this Agreement if those activities do not
materially interfere with the services required of Executive under
this Agreement.
5. Salary: The Company will
pay Executive an annualized base salary of $ 415,000 in accordance
with the Company’s payroll practices for executives.
Executive will be eligible for periodic salary reviews consistent
with the Company’s salary review practices for
executives.
6. Bonus: Executive will be
eligible for a bonus each year during the Term of Employment with a
target amount of fifty percent (50%) of Executive’s base
salary in effect at the beginning of the year in question, to be
awarded upon attainment of the annual operating goals and the
personal goals established by the Chief Executive Officer. The
award and amount of any such bonus shall be in the discretion of
the Company.
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7. Options: Executive will be
granted a non-qualified Performance Based Stock Option to purchase
fifty thousand (50,000) shares of Company Common Stock (CENT
A) with price determined by the “fair market value”
upon the date of issue. These options shall vest over a four
(4) year period at a rate of twenty-five percent
(25%) per year with the first traunch vesting on March 4,
2010. The options shall expire on March 4, 2014. The right to
exercise the options shall be consistent with the terms of the
Central Garden & Pet Company 2003 Omnibus Equity Incentive
Plan.
8. Restricted Stock: The
Executive will receive fifty thousand (50,000) restricted
shares of Central Garden & Pet Company Stock (CENT A) on
the Effective Date of this Agreement. These shares shall vest at
the rate of 25% per year beginning at the end of year three
(3) and being fully vested at the end of year six
(6).
9. Benefits: Subject to all
applicable eligibility requirements Executive will participate in
any and all 401(k), medical, dental, life and long-term disability
insurance and/or other benefit plan which, from time to time, may
be established as generally applicable to other similarly situated
Company executives.
10. Vacation: Executive will
earn four (4) weeks vacation annually. Executive’s
maximum vacation accrual will be six (6) weeks. Once Executive
has accrued six (6) weeks vacation, he will stop earning
vacation until he has taken vacation and reduced his accrual below
six (6) weeks.
11. Automobile: During the
Term of Employment, the Company will provide Executive with a
monthly automobile allowance of $1000.00.
12. Reimbursement of
Expenses: The Company will reimburse Executive for all
reasonable travel, entertainment and other expenses incurred or
paid by the Executive in connection with, or related to, the
performance of his duties, responsibilities or services under this
Agreement in accordance with the Company’s policies, upon
presentation by Executive of documentation, expense statements,
vouchers and/or other supporting information as the Company may
request. In no event shall reimbursements be made for expenses
incurred by Executive after the end of the calendar year following
the calendar year in which Executive incurs the expense.
13. Incapacity: In the event
that Executive becomes physically or mentally disabled or
incapacitated such that it is the reasonable, good faith opinion of
the Company that Executive is unable to perform the services
required under this Agreement with or without reasonable
accommodation, then after four (4) months of continuous
physical or mental disability, this Agreement will terminate;
provided , however , that during this four
(4) month period, Executive shall be entitled to the
continuation of his compensation as provided by this Agreement;
however such continued payments by the Company shall be integrated
with any disability, workers’ compensation, or other
insurance payments received, such that the total amount does not
exceed the compensation as provided by this Agreement. For purposes
of this Agreement, physical or mental disability does not include
any disability arising from current use of alcohol, drugs or
related issues.
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14. Termination by the Company
For Cause: The Company may terminate Executive for cause. If
Executive is terminated for cause, he will receive only his
compensation earned pro rata to the date of his termination. All
other benefits will cease on the date of Executive’s
termination. Cause shall be defined as:
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(a)
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An act or
omission constituting negligence or misconduct which is materially
injurious to the Company;
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(b)
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Failure to
comply with the lawful directives of the Board of
Directors;
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(c)
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A material
breach of this Agreement by Executive, which is not cured within
thirty (30) days after written notice thereof;
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(d)
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Failure to
perform in a manner acceptable to the Company after written notice
and an opportunity to cure;
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(e)
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The abuse of
alcohol or drugs;
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(f)
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Fraud, theft or
embezzlement of Company assets, criminal conduct or any other act
of moral turpitude by which is materially injurious to the
Company;
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(g)
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A material
violation of any securities law, regulation or compliance policy of
the Company;
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(h)
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Executive’s death or incapacity exceeding
four (4) months as provided in Section 13
above.
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15. Termination By Executive For
Cause: Termination By Executive For Cause: Executive may also
terminate this Agreement for cause by giving thirty (30) days
written notice to the Company’s Vice President of Human
Resources of an alleged material breach of this Agreement by the
Company, provided such breach is not cured by the Company within
the thirty (30) day notice period. If Executive terminates his
employment under this section, he will be entitled to the same
severance as if he were terminated by the Company without cause as
provided in Section 16, below. Such payments shall be
Executive’s sole and exclusive remedy in the event of a
termination of this Agreement by Executive for cause.
16. Termination By The Company
Without Cause: The Company may terminate Executive’s
employment under this Agreement at any time without cause by giving
Executive thirty (30) days written notice of termination. If
the Company terminates Executive under this section, within 10 days
after Executive signs a general release of claims in a form
acceptable to the Company that becomes irrevocable, provided a
later payment is not required by Section 17 below, the Company
will pay Executive a severance consisting of a continuation of
Executive’s base salary for a nine (9) month period,
subject to applicable payroll deductions, and health
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insurance continuation for nine (9) months.
Executive will be provided, at most, sixty (60) days to
consider whether to sign such release. Such payments shall cease,
and no further severance obligation will be owed, in the event
Executive obtains other equivalent employment during the severance
period. Such severance payments shall be Executive’s sole and
exclusive remedy in the event of a termination of this Agreement by
the Company without cause. At its option, the Company may pay
Executive thirty (30) days additional salary and benefits
provided in this Agreement in lieu of giving Executive the thirty
(30) days notice as provided above.
17. Section 409A Delay:
Effective January 1, 2009 each payment hereunder subject to
Section 409A will be considered a separate payment for
purposes of Section 409A. To the extent that it is determined
by the Company in good faith that all or a portion of any payments
hereunder subject to Section 409A made in connection with
Executive’s separation from service are not exempt from
Section 409A and that Executive is a “specified
employee” (within the meaning of Section 409A) at the
time of his separation from service, then payment of such
non-exempt payments shall not be made until the date that is six
(6) months and one day after his separation from service (or,
if earlier, his death), with any payments that are required to be
delayed being accumulated during the six-month period and paid in a
lump sum on the date that is six (6) months and one day
following his separation from service and any subsequent payments,
if any, being paid in accordance with the dates and terms set forth
herein.
18. Termination by Executive
Without Cause: Executive may terminate his employment without
cause by giving the Company thirty (30) days written notice of
termination. If Executive terminates his employment without cause
under this section, he will receive only his salary and benefits
earned pro rata to the date of his termination. All other salary
and benefits will cease on the date of Executive’s
termination. At its option, the Company may pay Executive his
salary and benefits provided in this Agreement through the
effective date of his written notice of termination and immediately
accept his termination.
19. Confidential Business
Information: The Company has and will continue to spend
significant time, effort and money to develop proprietary
information which is vital to the Company’s business. During
Executive’s employment with the Company, Executive has and
will have access to the Company’s confidential, proprietary
and trade secret information including but not limited to
information and strategy relating to the Company’s products
and services including customer lists and files, product
description and pricing, information and strategy regarding
profits, costs, marketing, purchasing, sales, customers, suppliers,
contract terms, employees, salaries; product development plans;
business, acquisition and financial plans and forecasts and
marketing and sales plans and forecasts (collectively called
“Company Confidential Information”). Executive will
not, during his employment with the Company or thereafter, directly
or indirectly disclose to any other person or entity, or use for
Executive’s own benefit or for the benefit of others besides
the Company, any Company Confidential Information. Upon termination
of this Agreement, Executive agrees to promptly return all Company
Confidential Information.
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20. Non-Solicitation of
Employees: While Executive is employed by the Company and for
twelve (12) months after such employment terminates, Executive
will not (acting either directly or indirectly, or through any
other person, firm, or corporation) induce or attempt to induce or
influence any employee of the Company to terminate employment with
the Company when the Company desires to retain that person’s
services.
21. Duty of Loyalty: During
term of this Agreement and any post-employment consulting
agreement, Executive agrees that he will not, nor will he permit
any entity or other person under his control, to directly or
indirectly hold, manage operate or control, or participate in the
ownership, management, operation or control of, or render
executive, managerial, market research, advice or consulting
services, either directly or indirectly, to any business engaged in
or about to be engaged in developing, producing, marketing,
distributing or selling lawn, garden, animal health, nutrition or
pet related products.
22. Separability: Each
provision of this Agreement is separable and independent of the
other provisions. If any part of this Agreement is found to be
invalid, the remainder shall be given full force and effect as
permitted by law.
23. Complete Agreement: This
Agreement constitutes the entire agreement between Executive and
the Company regarding the subjects covered by this Agreement. No
other agreement, understanding, statement or promise other than
those contained in this Agreement is part of their employment
agreement or will be effective. Any modification of this Agreement
will be effective only if it is in writing and signed by the Chief
Executive Officer of the Company.
24. Notice: All notices,
requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (except as may
otherwise be specifically provided herein to the contrary) if
delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or mailed by
certified or registered mail with postage prepaid:
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(a) If to the Company to:
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Central
Garden & Pet Company
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1340 Treat
Blvd., Suite 600
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Walnut Creek,
CA 94597
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Attention:
William E. Brown, Chairman/CEO
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with
a copy to:
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Paul Hastings
Janofsky & Walker LLP
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55 Second
Street, 24th Floor
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San Francisco,
CA 94105
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A
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