Exhibit
10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (Agreement) is made and
entered into as of April 16, 2007, by and between MGP Ingredients, Inc., its
subsidiaries and other affiliates (hereinafter referred to collectively as the
Company), and Dr. Sukh Bassi (the Employee).
WHEREAS, the Company desires to employ the Employee in
the capacity of Vice President Scientific Affairs, Chief Science Officer, and
the Employee desires to be employed by the Company in such capacity and on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual
covenants of the parties herein made, it is hereby agreed:
1. Term of Agreement. The term of this Agreement shall commence on
the date hereof and end on June 30, 2010, unless sooner terminated as provided
in Paragraph 9 of this Agreement; provided, however, that the Company may elect
to renew this Agreement for an additional term of one (1) year at the end of
the initial term by serving notice on Employee at least thirty (30) days prior
to the expiration of the initial term, in accordance with the procedures set
out in Paragraph 15 of this Agreement, that
the Company intends to extend the Agreement for such additional term of
one year. The Company shall not be
required to show Cause for not extending the Agreement under the terms of this
Paragraph, and in case of expiration of this Agreement after the initial term,
the Companys obligation to pay Base Salary and Bonus Compensation, if any, or to provide Employee Benefits under this
Agreement as defined in Paragraph 3 below, shall cease upon the expiration date
of this Agreement. The Employees rights
to other compensation and benefits, if any, shall be determined under the Companys
benefit plans and policies applicable to Employee then in effect.
2. Employment
and Duties. The Company hereby
agrees to employ the Employee, and the Employee hereby accepts employment, in
the capacity above stated to perform such duties and responsibilities as are,
from time to time, assigned to the Employee by the Company President, which may
include, without limitation, such duties
and responsibilities as procuring, processing and administering grants,
handling external and international science and government issues, collaborating with industry and universities,
representing the Company in its relationships with the IWGA, IFT, American
Bakers Assn., American Society of Baking, and the Bio-Polymer Institute,
representing the Company before the Kansas Bio Authority and USDA, serving as the
Washington D.C. contact with the Kansas Congressional delegation and
serving as the Company contact for the
National Assn. of Wheat Growers. Employee also shall attend internal Company
meetings at the request of the Company President. The Employee agrees to devote full business
time and effort to the diligent and faithful performance of the Employees
duties under the direction of the Companys President. Employees principal place of employment
shall be moved to the Companys new corporate office located in Atchison,
Kansas.
3. Compensation
and Benefits.
(a) Base
Salary. As compensation for the
Employees services, the Employee shall be paid an annual base salary of Two
Hundred Four Thousand Eight Hundred Dollars
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($204,800) payable in
regular payroll installments, less applicable withholdings (the Base
Salary). Employees base salary will be
reviewed annually.
(b) Bonus
Compensation. The Employee shall, in
addition to the Base Salary, be eligible to participate in a bonus program or
plan structured on external science issues as from time to time may be adopted
by the Company and in effect, if any.
The existence and terms of any such program or plan shall be determined
solely at the discretion of the Company and participation is subject to the terms
and conditions of any such program or plan.
(c) Employee
Benefits. The Employee shall be
entitled to participate in the Companys health, life, vacation, retirement and
disability plans (Employee Benefits) in accordance with their respective
terms. Nothing herein shall be construed
to limit the Companys discretion to amend, terminate or otherwise modify any
such Employee Benefits.
(d) Restricted
Stock Grants. The Employee will be
entitled to receive outstanding restricted stock awards in accordance with
their terms.
(e) Business
Expenses. The Company shall
reimburse the Employee for entertainment and travel expenses related to the
Companys business in accordance with the policies of the Company applicable to
the Employee on the date of this Agreement, subject to the right of the Company
to modify its general policies relating to expense reimbursement for employees.
4. Confidential
Information
(a) Definition
The term
Confidential Information as used in this Agreement means (i) any and all
information concerning the business and affairs of the Company or of persons which whom the Company does business,
such as customers, suppliers, licensors
and licensees (Business Contacts) which is not known by or generally
available to the public in any form whatsoever that is disclosed in any manner
by Company or a Business Contact to Employee or otherwise becomes known to
Employee during or prior to the term of this Agreement, including without
limitation information about products, product formulas and development, raw
materials, packaging, manufacturing processes and methods, patents, patent
applications, financial information, business plans and strategies, inventory
techniques, pricing information, and customer and supplier lists and contact
information, as well as reports, analyses, compilations, data, forecasts,
studies and other materials which contain or otherwise reflect or are generated
or derived from that information, and (ii) any and all information of a Business Contact which is designated as confidential
information pursuant to an agreement between the Business Contact and the
Company. Confidential Information also
includes (a) any information of Company
in tangible or electronic form that is clearly and conspicuously marked,
as practicable, as confidential, and (b) any orally disclosed information of
Company that is designated confidential when disclosed, is reduced to writing
within thirty days of disclosure, and is clearly and conspicuously marked as
confidential. In the latter case, the disclosure
is Confidential Information until the thirty days have passed.
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(b) Exceptions
Notwithstanding
the foregoing, the Parties agree that the term Confidential Information will
not include any information of the Companys which is in the public domain
prior to receipt by Employee or subsequent to the date of receipt without
breach of this Agreement by Employee.
(c) Protection
of Confidential Information
All Confidential
Information previously supplied or known to Employee or which is supplied or
becomes known to him pursuant to this Agreement will be maintained by him in
confidence. Employee will use a high
degree of care and take all reasonable steps necessary to maintain the
confidentiality of Confidential Information. Employee will not disclose Confidential
Information to any third party unless either (i) he has been authorized to do
so in writing by the President of the
Company or (ii) he is required to do so in the performance of his duties
for the Company under this Agreement and (a) he has informed the third party
that the Confidential Information to be disclosed is Confidential Information
of the Company and (b) he has obtained from the third party a written
confidentiality agreement either in a form then currently used by the Company
or in a form approved for use in the particular instance by the President or
counsel for the Company. If Employee is
required to disclose any of Companys Confidential Information pursuant to a
subpoena or similar judicial or governmental order, Employee will inform
Company as soon as reasonably possible of the order and its requirements so
that Company will have a reasonable opportunity to appear as necessary and
contest the order. Company is not
obligated to supply any Confidential Information to Employee under this
Agreement, makes no representation or warranty about the accuracy or
completeness of any Confidential Information supplied to Employee under this
Agreement, and has no obligation to update or correct inaccuracies which are or
may become apparent in any Confidential Information.
(d) Ownership
Company is the sole owner
of Confidential Information. Upon
request by Company, Employee agrees to return to Company, or to destroy and
certify that he has destroyed, all Confidential Information provided by Company. Unauthorized disclosure of Confidential
Information by Employee could result in irreparable harm to Company, and
entitle Company to seek injunctive and/or other appropriate relief. Nothing in this Agreement will be deemed to
grant to Employee a license directly or by implication, estoppel, or otherwise
under any patent, patent application, trade secret or other intellectual
property right, title or interest related to any Confidential Information
disclosed pursuant to this Agreement.
5. Perfection
of IP Rights
Company owns all right, title and interest in
patents and patent applications based on inventions made in whole or in part at
any time by Employee in the course of his employment by Company, and it is anticipated that Employee
may continue to make inventions for Company in his work for Company under this
Agreement. Employee will cooperate fully
with Company and its patent counsel in preparing, filing and prosecuting
Company patent applications based in
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whole or in part on
inventions made by Employee, the following being examples of that
cooperation. With respect to preparing
patent applications, Employee will provide Company and counsel with all
information in his possession, custody or control that relates to his
invention, will work with counsel to draft sound patent applications, and will
read successive drafts, paying particular attention to the final draft. With respect to filing applications, Employee
will sign a declaration of inventorship, an assignment to the Company of all
right, title and interest in the application, and any other documents presented
by counsel. With respect to prosecution
of the application, Employee will review and comment on Office Actions and
related prior art, will sign further declarations of inventorship if necessary
(for continuation-in-part applications, among others), and will participate in
determinations relating to Patent Cooperation Treaty applications and the
countries in which Company should go national.
To the extent that Company seeks to register or otherwise enhance
protection of some non-patent aspect of its intellectual property that Employee
helped create, Employee will participate fully in the processes required by
law. In that context, each registrable
copyright will be considered a work made for hire (including software) and
the work and registration of the work
will be owned by Company.
6. Covenant
Not to Compete.
During the Employees employment with the
Company and for a period of two (2) years after the expiration or termination
of this Agreement or of the Employees employment with the Company for any
reason, the Employee agrees not to act as an owner, part owner, shareholder,
joint venturer or operator, officer or director, employee, consultant or agent
of any other person, firm, corporation, partnership, joint venture or other
entity which is engaged in the development, manufacturer, and/or sale of any
product that is substantially equivalent to any product made by the Company
during the term of this Agreement. The foregoing provisions shall not prohibit
the Employee from investing in any securities of any corporation whose
securities are listed on a national securities exchange or traded in the
over-the-counter market if the Employee shall own less than one percent (1%) of
the outstanding voting stock of such corporation. The Employee agrees that a
breach of the covenants contained herein and in paragraphs 4, 5, 7 and 8 will
result in irreparable and continuing damage to the Company for which there will
be no adequate remedy at law, and in the event of any breach of such agreement,
the Company shall be entitled to injunctive and such other and further relief
as may be proper, including damages, attorneys fees, and litigation costs.
7. Solicitation
and Interference Prohibition.
During the Employees employment with the
Company and for a period of two (2) years after the expiration or termination
of this Agreement or of the Employees employment with the Company for any
reason, the Employee shall not directly or indirectly, whether as an
individual, or on behalf of any other person, firm, corporation, partnership,
joint venture or entity whatsoever, solicit or endeavor to entice away from the
Company any employee who is employed by the Company. Additionally, during the Employees employment
with the Company or for a period of two (2) years after the expiration or
termination of this Agreement or of Employees employment with the Company for
any reason, the Employee shall not, directly or indirectly through any other
individual or entity, solicit the business of any customer of the Company, or
solicit, entice, persuade or induce any individual or entity to terminate,
reduce or refrain from forming, renewing or extending its relationship, whether
actual or prospective, with
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the Company. During
Employees employment and for a period of two (2) years thereafter, Employee
will not disrupt, damage, impair or interfere with the business of the Company
or any of its affiliates or subsidiaries whether by way of interfering with or
employing or seeking to employ its employees or by disrupting relationships
with customers, agents, representatives or vendors or any others that have a
business relationship with the Company.
8. Disparagement
Prohibition.
The Employee acknowledges and agrees that as a result of his position
with the Company, disparaging or critical statements made by the Employee may
be uniquely detrimental to the Companys interests and well-being. Therefore, the Employee agrees to use his
best efforts to assist the Company in promoting and preserving the good will
and other business interests of the Company.
To this end, the Employee agrees to refrain at all times, both during
the Employees employment and after the termination thereof for any reason,
from making disparaging comments, or any public statements or remarks about the
Company or its affiliates, subsidiaries, officers, employees or directors,
unless previously approved by the Companys Board of Directors.
9. Termination
and Severance.
(a) Death
or Disability. In the event of the
Employees death or if the Employee should become unable to perform the
essential functions of the Employees position with reasonable accommodation by the Company for a
period of six (6) months (referred to as the disability), this Agreement, and
the Companys obligation to make further Base Salary or Bonus Compensation
payments or provide Employee Benefits as defined in Paragraph 3 of this
Agreement, shall terminate. The
Employees rights to other compensation and benefits, if any, shall be determined
under the Companys benefit plans and policies applicable to Employee then in
effect.
(b) Termination
for Cause by the Company. By
following the procedure set forth in Paragraph 9(e), the Company shall have the
right to terminate this Agreement and the employment of the Employee for
Cause. For purposes of this Agreement,
Cause is defined to mean, the Employee:
(i)
engages in fraud, dishonesty, willful misconduct, willful mismanagement, or
gross negligence;
(ii) is
convicted of, or pleads nolo contendre to, a crime involving moral turpitude;
(iii) violates
Paragraph 4 through 8; or
(iv) voluntarily
terminates employment without Good Reason (as defined below).
If the employment of the Employee is terminated by the
Company for Cause, this Agreement and the Companys obligation to make further
Base Salary and Bonus Compensation payments, if any, and to provide Employee
Benefits as set forth in Paragraph 3 of this Agreement
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shall thereupon
immediately terminate. The Employees
rights to other compensation and benefits, if any, shall be determined under
the Companys benefit plans and policies applicable to the Employee then in
effect.
(c) Termination
for Good Reason by the Employee. By
following the procedure set forth in Paragraph 9(e), the Employee shall have
the right to terminate this Agreement and the Employees employment with the
Company for Good Reason in the following circumstances:
(i) Change
of Location. The Company shall require Employee to permanently (for more
than three continuous months during any 12 month period) relocate from the
Atchison/Kansas City, Kansas vicinity; or
(ii) Reduction
of Total Compensation Opportunity.
The Company reduces the
Employees Base Salary below the amount specified in Paragraph 3(a).
Any notification of the Employees intent to terminate
the Agreement for Good Reason under this Paragraph must be given, pursuant to
Paragraph 9(e), no later than thirty (30) days after the Employee learns, or
reasonably should become aware, of the occurrence of the event giving rise to
the right to terminate for Good Reason.
If the employment of the Employee is terminated by the
Employee for Good Reason (as defined above), the Companys obligation to make
further Bonus Compensation payments, if any, or to provide Employee Benefits
under this Agreement shall cease on the effective date of such termination, but
the Employee will be entitled to receive Base Salary to the end of the term of
the Agreement then in effect. The
payment shall be paid in accordance with the Companys customary payroll
policies until the end of the term, unless otherwise agreed to by the Employee
and the Company at the time of termination, or unless prohibited under law,
rule or regulation. The Employees rights
to other compensation and benefits, if any, shall be determined under the
Companys benefit plans and policies applicable to the Employee then in effect.
(d) Termination
by Company Without Cause or by Employee Without Good Reason. The Company may terminate this Agreement and
the Employees employment without Cause at any time, and in such event the
Companys obligation to make further Bonus Compensation payments, if any, and
to provide Employee Benefits under this Agreement shall cease on the effective
date of such termination, but the Employee shall be entitled to Base Salary to
the end of the term of the Agreement then in effect. The payment of Base Salary shall be made in accordance with the Companys customary
payroll policies unless otherwise agreed by the Employee and the Company at the
time of termination, or unless prohibited under law, rule or regulation. The
Employees rights to other compensation and benefits, if any, shall be
determined under the Companys benefit plans and policies applicable to the
Employee then in effect.
The Employee may voluntarily terminate this Agreement
and the Employees employment without Good Reason at any time, but in such
event the Employee shall not be entitled to any further Base Salary or Bonus
Compensation, if any, or to further Employee
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Benefits under this
Agreement. The Employees rights to
other compensation and benefits, if any, shall be determined under the
Companys benefit plans and policies applicable to the Employee then in effect.
(e) Notice
of Termination. The party proposing
to terminate this Agreement and the employment of the Employee for Cause or
Good Reason, as the case may be, under Paragraph 9(b) or 9(c) above shall give
written notice to the other, specifying the reason therefore with
particularity. The effective date of
termination shall be the date on which notification of termination shall be
mailed in accordance with Paragraph 15 of this Agreement, unless a different
termination date shall be designated by the party giving notice or agreed upon
by the Employee and the Company.
(f) Expiration
of Term of Agreement. At the
expiration of the term of this Agreement as defined in Paragraph 1 above, if
the Agreement has not been previously terminated under Paragraph 9 of this
Agreement, all duties and obligations of the parties under this Agreement,
except those set out in Paragraphs 4 through 8, shall cease.
(g) Survival
of Certain Provisions.
Notwithstanding the expiration or termination of this Agreement, and the
Employees employment with the Company for any reason under this Agreement, the
provisions of Paragraphs 4 through 8 survive any such termination and shall be
binding upon the Employee and the Company in accordance with the provisions
of such Sections.
10. Litigation
Assistance. Employee will cooperate
and assist the Company in the investigation, prosecution and resolution of any
pending or threatened legal action, arbitration or administrative proceeding or
investigation involving any matter that arose before or during Employees
employment by the Company, including, without limitation, preparation
activities, testifying as a witness and providing relevant information to the
Company. Employee further agrees he will
not take any actions which would cause him to be subpoenaed in any
investigation, prosecution, or resolution of any pending or threatened legal
action, arbitration, or administrative or judicial proceeding and will not
testify in any such proceedings absent a valid subpoena or at the Companys
request.
11. Arbitration. Except as otherwise provided in this Paragraph,
the parties hereby agree that any dispute arising under this Agreement or any
claim for breach or violation of any provision of this Agreement shall be
submitted to arbitration, pursuant to the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (AAA), to a
single arbitrator selected by mutual agreement of the parties or, if the
parties do not mutually agree on the arbitrator, in accordance with the rules
of the AAA. The award determination of
the arbitrator shall be final and binding upon the parties. Either party shall have the right to bring an
action in any court of competent jurisdiction to enforce this Paragraph and to
enforce any arbitrators award rendered pursuant to this Paragraph. The venue for all proceedings in arbitration
under this provision, and for any judicial proceedings related to the
arbitration, shall be in Kansas City, Missouri.
Nothing in this Paragraph, however, shall prevent the Company from
seeking injunctive relief to preserve its rights under Paragraphs 4 through 8
of this Agreement.
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12. Severability. If any one or more of the provisions of this
Agreement shall be held invalid or unenforceable, the remaining provisions
shall remain valid and enforceable to the maximum extent permitted by law.
13. Entire
Agreement. This Agreement contains a
statement of all agreements and understandings between the Employee and the
Company on the subject matters covered by the Agreement, and it replaces and
supersedes all prior contracts and agreements between the Employee and the
Company concerning such matters. No
additions or modifications to this Agreement will be effective unless made in
writing and signed by the Employee and the Company.
14. Binding
Effect. This Agreement shall be
binding upon and inure to the benefit of the personal representatives, heirs
and assigns of the Employee and to any successors in interest and assigns of
the Company.
15. Notices. All notices required or permitted to be given
hereunder shall be sent registered or certified mail, addressed to the
respective parties at their addresses set forth below:
To
the Employee: Sukh
Bassi
1502 Hillcrest Court
Atchison, Kansas 66002
To
the Company: MGP
Ingredients, Inc.
100 Commercial
Street
P.O. Box 130
Atchison, Kansas
66002-0130
or such other address as a party hereto may notify the
other in writing.
16. Applicable
Law. This Agreement, or any portion
thereof, shall be interpreted in accordance with the laws of the State of
Kansas.
17. Assignment. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of the Company.
Employee may not assign any of his rights or delegate any of his duties
or obligations under this Agreement without the Companys express written
consent.
18. Non-Waiver
Provision. The failure of either
party of this Agreement to insist upon strict adherence to any term of this
Agreement, or to object to any failure to comply with any provision of this
Agreement, shall not (a) constitute or operate as a waiver of that term or
provision, (b) estop that party from enforcing that term or provision, or (c)
preclude that party from enforcing that term or provision or any other term or
provision. The receipt of a party to
this Agreement of any benefit from this Agreement shall not effect a waiver or
estoppel of the right of that party to enforce any provision of this Agreement.
ALL SIGNATORIES ACKNOWLEDGE THEY HAVE CAREFULLY
READ THIS AGREEMENT, WERE PROVIDED AN OPPORTUNITY TO EXAMINE THE
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ARBITRATION
RULES AND CONSULT WITH COUNSEL BEFORE SIGNING, AND UNDERSTAND THAT BY SIGNING
THIS AGREEMENT, BOTH PARTIES WAIVE RIGHTS TO TRIAL BY COURT OR JURY, EXCEPT AS
EXPRESSLY PROVIDED HEREIN.
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the day and year first written above.
EMPLOYEE
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MGP INGREDIENTS, INC.
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/s/ Sukh Bassi
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By:
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/s/ David E. Rindom
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Name: David E. Rindom
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Title:
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Vice President - Human Resources
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