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GLOBAL
SMOOTHIE SUPPLY, INC.
Employment
Agreement
This
Employment Agreement ("Agreement") is made and entered into by and between
Donald M. Roberts ("Roberts") and The Global Smoothie Supply, Inc. (“GSS”),
collectively “the parties.” As soon as it is signed by both parties, it shall
become effective (the “Effective Date”).
1. Position:
During the term of this Agreement, Roberts shall be employed by OSS as its
Chairman and Chief Executive Officer; shall be elected a director of the
Company; and shall be elected Chairman of GSS' Board of Directors (the
"Board").
2. Term:
(a) GSS'
Commitment to Roberts: The initial term shall commence on the Effective Date and
continue until JUNE 30, 2014. Beginning on JULY 1, 2014, the Agreement shall
automatically renew each day for a two year period, so that while this feature
is in effect the remaining term shall always be exactly two years (e.g., on July
1, 2014, the term would run from July 1, 2014 through June 30, 2016); provided,
no renewals shall occur after any of the following:
(i) at
any time, GSS provides written notice to Roberts of its decision to cancel the
automatic renewal feature;
(ii) at
any time, GSS terminates Roberts's active employment; or
(iii) at
any time, Roberts terminates his active employment.
(b) Roberts's
Commitment to GSS: Roberts commits to work for GSS during the initial term
(i.e., from the Effective Date through June 30, 20]4).
3. Annual
Salary: From the Effective Date through December 31, 2009, Roberts's annual
salary shall be eighty-seven thousand five hundred dollars ($87,500.00), paid in
accordance with GSS' standard payroll practices, Le., approximately equal
amounts on the first and fifteenth days of each calendar month. After December
31, 2009, it may be increased in the discretion of the Board, but may not be
reduced.
4. Bonuses:
(a) Commencing
with the bonus period that ends on December 31, 2009, Roberts shall be eligible
to receive an annual performance bonus based on the terms and provisions of GSS'
Management Incentive Bonus Plan (the "MIS Plan"). His target bonus shall be
equal to 100% of his salary, and the maximum bonus shall be 200% of his
salary.
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(b) The
Board shall have discretion to award additional bonuses to Roberts, as it may
deem appropriate.
5. Group/Executive
Benefits: Except as otherwise specifically provided herein, Roberts shall
participate, on terms no less favorable than are provided to other Executive
Officers of GSS, in any group and/or executive life, hospitalization or
disability insurance plan, health program, pension, profit sharing, ESOP, 401(k)
and similar benefit plans (qualified, non-qualified and supplemental) that GSS
sponsors for its officers or employees, and in other fringe benefits including
any automobile allowance or arrangement, club memberships and dues, and similar
programs (collectively referred to as the "Benefits"). All waiting periods for
such plans shall be waived, except with respect to the pension plan where waiver
of the one year waiting period is not permitted under the plan. It is understood
that participating on the "same terms" as other the Executive Officers means the
same rules and/or policies apply, recognizing that the result upon applying them
can be affected by differing credited years of service. As to GSS
hospitalization and health program benefits, participation therein shall extend
to Roberts's family.
6. Supplemental
Retirement Benefits:
(a) Subject
to the proration provisions described in subsection (d) below, upon termination
of his employment with GSS, Roberts will receive a supplemental retirement
benefit pursuant to this Agreement which (in combination with any and all
retirement benefits to which Roberts is entitled or received under any qualified
or non-qualified defined benefit plans of GSS and of any of Roberts's former
employers) will produce for him, upon commencement of benefits at or after age
65, aggregate retirement benefits such that the annualized amount, on a straight
life annuity basis, is equal to the greater of:
(i) fifty
percent (50%) of his average cash compensation (annualized base salary plus
annual performance bonus) for his five consecutive calendar years of employment
with GSS that produce the highest average cash compensation; or
(ii) one
million dollars ($1,000,000.00). In determining the setoff for other retirement
benefits, the value of those benefits will be calculated as if Roberts had
elected to receive each benefit on a straight life annuity basis, regardless of
the form of payment he actually elected (including any lump sum
payment).
(b) Roberts
may elect to take the supplemental benefit described in subsection 6(a) in any
form permitted under either The GSS Supplemental Executive Retirement Program,
if any (the "SERP") or The GSS Retirement Plan, if any, subject to the
applicable actuarial adjustment prescribed by the plan in question for electing
such an alternative form of payment instead of a straight life
annuity.
(c) If Roberts's receipt of the
supplemental retirement benefit (described in subsection
6(a)) commences before reaching age 65, then that benefit shall be subject
to
actuarial reduction, calculated in accordance with the terms of the
SERP.
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(d) If
Roberts's employment is terminated by GSS for Cause or is terminated by Roberts
Without Good Reason before the fifth anniversary of the Effective Date, then the
supplemental retirement benefit described in subsection 6(a) shall be prorated
based on the number of months Roberts was actively employed with GSS, as
follows: (i) multiply the formula figure determined under subsection 6(a)
(without subtracting any setoff for other retirement benefits) by a fraction,
the numerator of which is the number of months Roberts was actively employed by
GSS, and the denominator of which is seventy-five (75); and then (ii) subtract
the setoff for other retirement benefits, as described in section 6(a). If
Roberts does not accept a position with any other company during the one-year
period following his last day of active service with GSS, then the proration
formula shall be more favorable to Roberts, as follows: (i) calculate the net
supplemental retirement benefit under subsection 6(a), including subtracting the
setoff for other retirement benefits; and then (ii) multiply that amount by a
fraction, the numerator of which is the number of months Roberts was actively
employed by GSS, and the denominator of which is seventy-five (75).
(e) If
Roberts dies before the supplemental retirement benefit described in subsection
6(a) becomes payable, his wife will receive a survivor annuity for the rest of
her life equal in amount to the straight life annuity which would have been
payable to Roberts under subsection 6(a) if, by the date immediately before his
death, he had terminated his employment For Good Reason. The amount payable to
Roberts's wife shall take into account all setoffs that would have applied to
his benefit, except that if his spouse only receives a reduced survivor annuity
under The GSS Retirement Plan, then that amount, rather than the full straight
life annuity which would have been payable to Roberts, shall be setoff with
respect to The GSS Retirement Plan.
7. Equity
Based Incentive Compensation:
(a) On
the Effective Date, and pursuant to the terms of The GSS Long Term Incentive
Plan, if any (the “LTIP”), GSS shall grant Roberts a 10-year option with respect
to 10,200,000 shares of GSS common stock. One-fifth (1/5) of these options shall
vest each year for five years, on the first five anniversaries of the Effective
Date (e.g., the first 2,040,000 options will vest on July 1, 2010, and the last
2,040,000 options will vest on July 1, 2014). In accordance with the terms of
the LTIP, the per share exercise price for these options will be equal to the
fair market value of a share of GSS common stock on the Effective Date, as
determined in good faith by the Board of Directors.
(b) If
there is a generally applicable award of options or restricted shares to senior
executives of GSS other than the annual award of options under the LTIP, Roberts
shall participate in such award(s) on terms consistent with GSS' then-current
practices and with awards made to other senior executives.
(c) In
the event of a Change in Control of GSS, as that term (or any similar term) is
defined in the LTIP, all of Roberts's awards of stock options, restricted shares
or similar equity-based interests which have not already vested, shall
immediately vest in full.
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8. Events
Triggering Severance Benefits: Upon the termination of Roberts's employment for
any of the reasons described in subsections (a), (b) or(c) below, he will be
entitled to receive the severance benefits described in section 9:
(a) GSS
terminates Roberts's employment without Cause.
(b) Roberts
terminates his employment with GSS "For Good Reason," which means he terminates
it within six months of any event that constitutes Good Reason, as defined in
subsection (d) below (the phrase "Without Good Reason" means any termination by
Roberts later than six months of an event constituting Good
Reason).
(c) Roberts
resigns during the thirteenth (13th) month following a "Change in Control" of
GSS. For purposes of this Section 8, a "Change in Control" means the occurrence
of one or more of the following events:
(i) the
shareholders of GSS approve a merger or consolidation of GSS with any
corporation or other entity, other than a merger or consolidation which would
result in the voting securities of GSS outstanding immediately prior thereto
continuing to represent (either by renaming outstanding securities or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of GSS or such surviving entity
outstanding immediately after such merger or consolidation;
(ii) a
change in ownership of GSS through a transaction or series of transactions, such
that any person or entity is or becomes the beneficial owner, directly or
indirectly, of shares of common stock or other securities of GSS representing
50% or more of the combined voting power of GSS' then outstanding shares of
common stock or other securities;
(iii) The
approval by the shareholders of GSS of any agreement for the sale or disposition
of all or substantially all of GSS' assets; or
(iv) A
transfer of all or substantially all of GSS' assets pursuant to a partnership or
joint venture agreement where GSS' resulting interest is or becomes 50% or
less.
(d) Definitions:
(i) "Cause"
will exist if it is determined by the Board that Roberts engaged in any act of
moral turpitude or gross misconduct by committing a significant violation of
GSS' Code Of Ethics, provided that, if appropriate under the circumstances
(taking into account the nature of the offense). GSS has called the alleged
misconduct to Roberts's attention and allowed a reasonable opportunity to cure
it. A determination of Cause or gross misconduct must be made by a two-thirds
vote of the full Board (excluding Roberts), and must be communicated in writing
to Roberts by a Notice of Termination, which shall include a certification or a
copy of the resolution duly adopted by the Board by the required two-thirds
vote.
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(ii) "Good
Reason" for Roberts to resign shall exist if any of the following events occur
without his consent:
(A) GSS
intentionally fails to payor provide required compensation, after the omission
has been called to GSS' attention and GSS has been given a reasonable
opportunity to cure the situation; or
(B) GSS
significantly reduces Roberts's titles, position, duties and/or authority;
or
(C) GSS
notifies Roberts that it has decided to terminate the automatic daily renewal
feature described in section 2; or
(D) GSS
fails to obtain the agreement from any successor to GSS to assume and agree to
perform this Agreement, as required by Section 18; or
(E) GSS
materially breaches the terms of this Agreement, provided Roberts has called the
breach to GSS' attention and allowed a reasonable opportunity to cure
it.
(iii) “Notice
of Termination” shall mean a written notice which (A) indicates the type of
termination under this Agreement (e.g., for Cause) and cites the applicable
provision of this Agreement, (B) briefly describes the facts and circumstances
claimed to provide a basis for the stated type of termination, if applicable,
and (C) specifies the date of termination from active service.
(e) Termination
because of Roberts's death or disability to work will not require payment of the
severance benefits described in section 9. Further, termination for Cause or
termination by Roberts Without Good Reason will not require payment of the
severance benefits described in section 9. (i) For purposes of this Agreement,
Roberts will be deemed to be disabled from performing his duties upon the
earlier of: (A) the end of a six consecutive month period during which, for any
reason, he has been unable to substantially perform each of his usual and
customary duties as Chairman and Chief Executive Officer; or (B) the date when
it becomes apparent that, for any reason, he will be unable to substantially
perform each of his usual and customary duties as Chairman and Chief Executive
Officer for a period of at least six consecutive months, provided, in the case
of a physical or mental injury or disease, his disability must be determined in
writing by a reputable physician or psychologist, selected jointly by the Board
and Roberts (or his personal representative). If any question arises as to
whether Roberts is physically or mentally disabled, upon written request by the
Board, Roberts shall promptly submit to a reasonable medical or psychological
examination for the purpose of determining the existence, nature and extent of
such disability. GSS shall promptly give Roberts written notice of any
determination that Roberts is disabled from working and of any decision by the
Board to terminate his employment by reason thereof. In the event of disability,
until the date of termination from active service, the base salary payable to
Roberts under section 3 hereof shall be reduced dollar-for-dollar by the amount
of disability benefits paid to Roberts in accordance with any disability plan,
policy or program of GSS.
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(f) Within
thirty (30) days following Roberts's termination from active service, regardless
of the reason for termination, GSS shall pay him an amount equal to five (5)
days of pay at his then current salary rate.
9. Severance
Benefits: If Roberts qualifies for severance benefits under section 8, then the
following terms and conditions shall apply:
(a) GSS
shall pay Roberts all Accrued Obligations in a lump sum in cash within thirty
(30) days following his last day of active service; provided, however, that any
portion of the Accrued Obligations which consists of bonus, deferred
compensation, or incentive compensation shall be determined and paid in
accordance with the terms of the relevant plan or provision. “Accrued
Obligations” shall mean, as of Roberts's last day of active service, the sum
of:
(i) his
base salary under section 3 through the date of termination from active service,
to the extent not already paid;
(ii) the
amount of any bonus, incentive compensation, deferred compensation and other
cash compensation accrued by Roberts as of his last day of active service, to
the extent not already paid; and
(iii) any
vacation pay, expense reimbursements and other cash entitlements accrued by
Roberts as of his last day of active service, to the extent not already paid.
For purposes of this section, amounts shall be deemed to accrue ratably over the
period during which they are earned, but no discretionary compensation shall be
deemed earned or accrued until it is specifically approved by the Board in
accordance with the applicable plan, program or policy.
(b) Within
thirty (30) days after Roberts's last day of active service, GSS shall pay him a
lump sum equal to the amount that results when the fraction described in
subsection (i) below is multiplied times the sum described in subsection (ii)
below:
(i) A
fraction, the numerator of which is the number of days remaining from Roberts's
last day of paid active service until the last day of the term of this
Agreement, and the denominator of which is 365;
(ii) The
sum of his: (A) final annual salary and (B) then-current annual performance
bonus target or, if greater, his most recent annual bonus payment. However, the
payment to Roberts under this paragraph (b) shall be conditioned upon his
compliance with GSS policy (as in effect on the Effective Date or on his last
day of active service, whichever is more favorable to Roberts) regarding the
execution of a waiver and release prior to receiving severance
compensation.
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(c) Following
Roberts's last day of active service and continuing through the last day of the
term of this Agreement, GSS shall treat him as employed on inactive service and,
thus, shall continue to credit him with service time and shall provide him and
his dependents with all welfare benefits that are provided to participants in
the GSS Officers Severance Program, if any, (the "Program") during their
inactive service period, as determined by the Program provisions in effect on
the Effective Date or his final day of active service, whichever produces
greater benefits. Thereafter, Roberts will be treated as a retired senior
officer for purposes of benefits GSS provides to such retirees.
(d) All
options and restricted stock that were granted before the date of termination
but have not yet vested shall immediately vest upon Roberts's final day of
active service. All such options, including options that previously vested but
have not yet been exercised, shall remain exercisable in accordance with the
LTIP's terms for retirees (currently 5 years following retirement, or until
expiration of the underlying option term, whichever is sooner).
10. Obligations
Of GSS Upon Termination By Death, Disability, Discharge For Cause, or
Resignation Without Good Reason: In the event this Agreement terminates due to
the death or disability of Roberts, or due to termination for Cause or
resignation or retirement Without Good Reason, GSS shall pay to Roberts all
Accrued Obligations in a lump sum in cash within thirty (30) days after his last
day of active service; provided, however, that any portion of the Accrued
Obligations which consists of bonus, deferred compensation, or incentive
compensation shall be determined and paid in accordance with the terms of the
relevant plan or provision. Nothing in this section shall limit or otherwise
adversely affect any rights Roberts may have under applicable law, under any
other agreement with GSS, or under any compensation or benefit plan or policy of
GSS.
11. Gross-Up
Payment for Golden Parachute Taxes: If it is determined that any payment GSS
makes to or for the benefit of Roberts, under this Agreement or otherwise, is
subject to the federal excise taxes imposed on golden parachute payments, then,
GSS will make an additional payment to him (a "gross-up" payment) calculated in
accordance with the terms of GSS policy as in effect on the date of the payment
in question.
12. No
Duty To Mitigate: With respect to the severance benefits provided under section
9 of this Agreement, Roberts shall not have any duty to mitigate his income loss
after a termination by finding alternative employment, nor shall amounts he
earns from other employment be offset against those benefits. This provision has
no effect on Roberts's duty to mitigate, if any, in connection with claims that
may arise outside of this Agreement.
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13. Termination
By Executive: Executive shall have no personal liability for damages to GSS for
voluntarily terminating his employment at any time, with or Without Good Reason,
so long as he gives at least thirty (30) days prior written notice.
14. Non-Competition:
If Roberts's employment with GSS is terminated for any reason that entitles him
to receive severance benefits pursuant to section 9 of this Agreement, then for
a period of two years immediately following his last day of active service, he
shall abide by the following covenants and restrictions:
(a) Non-Competition:
He shall not Participate in the management of a business entity that deals in
Covered Products, unless that entity is merely a retailer or consumer of Covered
Products, which does not compete against GSS in any way.
(b) Raiding
Employees: He shall not directly or indirectly solicit or encourage any Existing
GSS Employee to leave GSS or to accept any position with any other
company.
(c) Non-Disclosure:
He shall not use or disclose to anyone any Confidential Information regarding
GSS.
(d) Definitions:
The following definitions shall apply to subsections 14(a), (b) and (c)
above:
(i) "Covered
Products" mean any product which falls into one or more of the following
categories, so long as GSS is producing, marketing, distributing, selling or
licensing such product anywhere in the world: fruit puree smoothies, health and
sports drinks and beverages marketed as thirst quenchers or as healthy; and
items GSS produces for the food service market.
(ii) "Participate"
shall be construed broadly to include, without limitation:
(A) holding
a position in which Roberts directly manages such a business
entity;
(B) holding
a position in which anyone else who directly manages such a business entity is
in Roberts's reporting chain or chain-of command, regardless of the number of
reporting levels between them;
(C) providing
input, advice, guidance, or suggestions regarding the management of such a
business entity to anyone responsible therefor;
(D) providing
a testimonial on behalf of such an operation or the product it produces;
or
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(E) doing
anything else which falls within a common sense definition of the term
"participate" as used in the present context.
(iii) "Existing
GSS Employee" means someone: (A) who became employed by GSS before Roberts's
active service terminates; and (B) who is still employed by GSS as of the date
when the facilitating act or solicitation takes place; and (C) who holds a
manager, director or officer level position at GSS (or an equivalent position
based on job duties, regardless of the employee's title).
(iv) "Confidential
Information" shall be construed as broadly as Texas law permits and shall
include all non-public information Roberts acquires by virtue of his positions
with GSS which might be of any value to a competitor or which might cause any
economic loss (directly or via loss of an opportunity) or substantial
embarrassment to GSS or its customers, distributors or suppliers if disclosed.
Examples of such confidential information include, without limitation,
non-public information about GSS' strategic or marketing plans; its customers,
suppliers, and distributors; its potential acquisition targets; its business
operations and structure; its product lines, formulas and pricing; its
processes, machines and inventions; its research and know-how; or its financial
data.
(e) Remedies:
In the event of a breach or threatened breach of any term of subsections 14(a),
(b) or (c), GSS shall be entitled to injunctive relief and/or damages. The
parties agree that breach of these provisions would cause irreparable injury to
GSS for which there would be no adequate remedy at law, due among other reasons
to the inherent difficulty of determining the precise causation for loss of
customers/consumers or measuring the exact impact of losing key employees or
having Confidential Information disclosed.
(f) Recitals:
Roberts acknowledges that by virtue of the positions he will hold, he will
acquire Confidential Information, including without limitation knowledge of
operational plans, strategic long range plans, new product development,
marketing plans, sales plans, and distribution plans. Roberts also acknowledges
that by virtue of his positions, he will learn which Existing GSS Employees are
critical to GSS' success and will develop relationships he otherwise would not
have had with such employees.
15. Choice
Of Law And Forum:
(a) This
Agreement shall be governed by and construed in accordance with the laws of
Texas, without regard to choice of law principles.
(b) In
any litigation over this Agreement, both parties consent to submit to the
personal jurisdiction of any court, state or federal, in the State of Texas.
Such courts in Texas shall be the exclusive jurisdiction for any litigation over
this Agreement or an alleged breach thereof.
16. Attorney
Fees And Other Expenses:
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(a) GSS
will pay all reasonable legal, accounting and other professional fees and
related expenses Roberts incurred in connection with the negotiation and
preparation of this Agreement.
(b) If
Roberts and GSS become involved in litigation regarding the terms of his
employment with GSS or the termination thereof, the party which prevails shall
be entitled to reimbursement of all reasonable litigation costs and expenses,
including attorney fees. If each party prevails on one or more litigated issues,
the court shall exercise its equitable judgment to determine which, if either,
should be considered the prevailing party and the percentage of that party's
expenses which should be reimbursed, taking into account such factors as the
significance of the issue(s) on which each party prevailed, the reasonableness
of each party's position(s), and ability to pay.
17. Indemnification:
To the fullest extent permitted by law and GSS' by-laws, GSS shall indemnify
Roberts (including the advancement of expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
incurred by Roberts in connection with the defense of any lawsuit or other claim
to which he is made a party by reason of being an officer, director or employee
of GSS or any of its subsidiaries.
18. Binding
Effect: This Agreement shall be binding on and inure to the benefit of the heirs
and representatives of Roberts and the successors and assigns of GSS. GSS shall
require any successor (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock, liquidation or
otherwise) to all or a substantial portion of its assets to assume and agree to
perform this Agreement in the same manner and to the same extent that GSS would
be required to perform it if no such succession had taken place; provided,
Roberts shall have the same obligations to the successor as he would have had to
GSS. Regardless of whether such an agreement is executed, this Agreement shall
be binding on any successor of GSS in accordance with the operation of law, and
such successor shall be deemed “GSS” for all purposes under this
Agreement.
19. Notices:
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered anywhere by hand to
the applicable party, or if delivered by recognized commercial delivery service
or if mailed within the continental United States by first class certified mail,
return receipt requested, postage prepaid, addressed as follows:
(a) If
to the Board or GSS, addressed to: The GSS, 4428 University Blvd., Dallas, Texas
75205, Attention: Chief Legal Officer.
(b) If
to Roberts, addressed to: Donald M. Roberts,
Such
addresses may be changed by written notice sent to the other party at the last
recorded address of that party. Failure to send a copy to the applicable
attorney shall not render a Notice ineffective, so long as it is actually
received by GSS or Roberts, as applicable.
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20. Scope
of Agreement:
(a) This
Agreement supersedes any other document or oral agreement that conflicts with it
regarding any or the matters set forth herein, however, it is not intended to
preempt or supersede other documents, including plan documents, that provide
additional, non-conflicting rules or terms. Without limitation, nothing in this
Agreement shall eliminate or reduce Roberts's obligation to comply with the Code
Of Ethics, to the extent that certain of its provisions (such as rules regarding
disclosure of confidential information) remain applicable to employees after
termination.
(b) No
promises or inducements have been made other than those reflected herein. This
Agreement cannot be amended except by a written agreement signed by the parties,
and only the Board has authority to authorize such an amendment on behalf of
GSS.
21. Severability:
Each term of this Agreement is deemed severable, in whole or in part, and if any
provision of this Agreement or its application in any circumstance is found to
be unlawful or invalid, the remaining terms and provisions shall remain in full
force and effect. In addition, a court may re-write the invalid provision(s) so
as to be consistent with applicable law and still, to the extent possible,
achieve the intended effect of this Agreement.
22. Execution
In Counterparts: This Agreement may be executed by the parties hereto in two (2)
or more counterparts, each of which shall be deemed to be an original, but all
such counterparts shall constitute one and the same instrument, and all
signatures need not appear on anyone counterpart.
GLOBAL
SMOOTHIE SUPPLY,INC.
BY: /s/ Donald M.
Roberts
Donald M
Roberts, Chief Financial Officer
Date:
June 30, 2009
/s/ Donald M.
Roberts
Donald M.
Roberts, individually
Date:
June 30, 2009
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