Employment Agreement - WO Holdings Inc. and Michael C. Gilliland
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of July 12, 1996 between WO Holdings,
Inc., a Delaware corporation (the "Company") and Michael C. Gilliland
("Executive").
This Agreement provides for the employment of Executive as CEO of the
Company, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual undertakings contained
herein, the parties agree as follows:
ARTICLE 1. EMPLOYMENT
1.1 Employment. The Company agrees to employ
Executive, and Executive hereby accepts employment with the Company, upon the
terms and conditions set forth in this Agreement for the period beginning on
the date hereof and terminating as provided in Section 1.4 (the "Employment
Period").
1.2 Positions and Duties.
(a) During the Employment Period, Executive shall serve
as CEO of the Company at its Headquarters in Boulder, Colorado, under the
supervision and direction of the Company's Board of Directors (the "Board").
(b) Executive shall carry out the customary functions of
a CEO, and perform such tasks and responsibilities as requested by the Board.
(c) Executive shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and periods
of illness or other incapacity as provided for herein) to the business and
affairs of the Company and its subsidiaries. Executive shall perform his
duties and responsibilities to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner.
(d) During the term of this Agreement, the Board shall
nominate Executive to serve as a member of the Company's Board of Directors
pursuant to the terms of the Stockholders Agreement dated even herewith and the
Company shall use its best efforts to enforce the voting agreements contained
therein relating to such election of Executive.
1.3 Salary, Bonus, Options and Benefits.
(a) During the Employment Period, Executive's base salary
(the "Base Salary") shall initially be $150,000.00 per annum which salary shall
be payable in regular installments in accordance with the Company's general
payroll
<PAGE> 2
practices as in place from time to time. Executive shall be entitled to an
annual review of the amount of Base Salary payable hereunder and performance
review after the initial six (6) months of employment, such review to be
conducted within seven (7) months of the date hereof. Any adjustment in
Executive's compensation shall be determined by the Compensation Committee of
the Board (the "Compensation Committee") in its sole discretion; provided,
however, that the Base Salary may not be reduced below the amount provided for
in the first sentence of this Section 1.3(a).
(b) Within sixty (60) days following the date of this
Agreement, the Compensation Committee shall establish a cash bonus and stock
option program for Executive, in addition to the Base Salary, with the amount
thereof and the related performance criteria to be established by the
Compensation Committee in its sole discretion.
(c) During the Employment Period, Executive shall be
entitled to participate in all of the Company's employee benefit programs for
which senior executive employees of the Company are generally eligible as in
effect from time to time; provided that the employee benefit programs made
available to Executive shall not be materially diminished from those in effect
on the date of this Agreement, except with Executive's prior written consent.
Executive shall be entitled to four (4) weeks of paid vacation per year. Any
payments of benefits payable to Executive hereunder in respect of any calendar
year during which Executive is employed by the Company for less than the entire
such year shall, unless otherwise provided in the applicable plan or
arrangement or required by applicable law, be prorated in accordance with the
number of days in such calendar year during which Executive is employed.
(d) The Company shall reimburse (or cause to be
reimbursed) Executive for reasonable out-of-pocket expenses incurred by him in
the course of performing his duties under this Agreement upon completion of an
expense report in accordance with the Company's and its subsidiaries'
reimbursement, reporting and documentation policies in effect from time to time
with respect to travel, entertainment and other business expenses.
(e) All payments of compensation hereunder shall be
subject to federal, state and other withholding taxes as required by applicable
law and the Company's general payroll policies as in effect from time to time.
1.4 Term. (a) The Employment Period shall commence
on the date hereof and end on the second (2nd) anniversary hereof (the "Initial
Employment Period"), subject to earlier termination (1) by reason of
Executive's death or disability, (2) by written resolution of the Board for
Cause (as defined herein), (3) by written resolution of the Board without
Cause, or (4) by written resignation of the Executive.
2
<PAGE> 3
(b) If the Employment Period is terminated by reason of
Executive's death or disability, Executive's resignation or his termination by
the Board with or without Cause (except felony conviction of any crime
involving theft or fraud), Executive shall be entitled to receive his then
effective Base Salary for a period of one (1) year, regardless of the remaining
term of the Initial Employment Period. In addition, Executive shall be paid,
under any of the foregoing circumstances, a severance payment in an amount
equal to two (2) times Executive's then effective Base Salary, in addition to
the amount paid pursuant to the previous sentence. Such amounts shall be
payable in equal biweekly installments over a period of three (3) years from
the date of termination of employment.
(c) Company shall pay Executive's health insurance
benefits for a period of three (3) years after termination of Executive's
employment for any reason other than (i) Executive's death, or (ii) termination
of Executive's employment for a felony conviction of any crime involving theft
or fraud.
(d) Except as expressly set forth in this Section 1.4,
all compensation and other benefits shall cease to accrue upon termination of
employment.
1.5 Renewal Options. The Employment Period shall
automatically renew for successive one (1) year terms unless terminated by
Company or Executive upon ninety (90) days written notice prior to such renewal
period; provided, however, that upon any such renewal, the first sentence of
Section 1.4(b) shall be reformed to read as follows:
"If the Employment Period is terminated by reason of Executive's
termination by the Board without Cause or by Executive upon a material
breach by the Company's obligations hereunder which is not cured
within ten (10) business days of its receipt of written notice from
Executive, Executive shall be entitled . . . (continue without
amendment)."
1.6 Confidential Information; Company Property. Executive
acknowledges that the information, observations and data obtained by him while
employed by the Company and its subsidiaries concerning the business or affairs
of the Company, its subsidiaries and any predecessor to the business of the
Company that are not generally available to the public other than as a result
of breach of this Agreement by Executive ("Confidential Information") are the
property of the Company and its subsidiaries. Executive agrees that he shall
not disclose to any unauthorized person or use for his own account any
Confidential Information without the prior written consent of the Company
unless, and in such case only to the extent that, such matters become generally
known to and available for use by the public other than as a result of
Executive's acts or omissions to act. Notwithstanding the foregoing, in the
event Executive becomes legally compelled to disclose Confidential
3
<PAGE> 4
Information pursuant to judicial or administrative subpoena or process or other
legal obligation, Executive may make such disclosure only to the extent
required, in the opinion of counsel for Executive, to comply with such
subpoena, process or other obligation. Executive shall, as promptly as
possible and in any event prior to the making of such disclosure, notify the
Company of any such subpoena, process or obligation and shall cooperate with
the Company in seeking a protective order or other means of protecting the
confidentiality of the Company Information. Executive shall deliver to the
Company at the termination of the Employment Period, or at any time the Company
may reasonably request, all memoranda, notes, plans, records, reports, computer
tapes and software and other documents and data (and copies thereof)
containing, relating to, or derived from the Confidential Information or the
business of the Company or its subsidiaries which he may then possess or have
under his control. Executive agrees that he will not retain after the
termination of the Employment Period any copies of any Confidential Information
including, without limitation, any software, documents or other materials
originating with and/or belonging to the Company or any Subsidiary of the
Company.
1.7 Non-Compete; Non-Solicitation.
(a) Executive acknowledges that in the course of his
employment with the Company he will become familiar with the Company's trade
secrets and with other confidential information concerning the Company and its
predecessors and that his services have been and will be of special, unique and
extraordinary value to the Company. The parties also acknowledge that the
availability of the services of the Executive and the related covenant not to
compete provided for herein were material inducements to it in agreeing to
enter into the business combination of Wild Oats Markets, Inc. and Alfalfa's,
Inc. being consummated at the same time that this Agreement is being entered
into. Accordingly, Executive agrees that, during the period in which Executive
is receiving compensation hereunder and for a period of three (3) years
following termination of Executive's employment with the Company for any reason
(the "Non-Compete Period"), he shall not directly or indirectly own, manage,
control, participate in, consult with, render services for, or in any manner
engage in any supermarket, food store or retailer of health and beauty aids
located within a ten (10) mile radius of any store operated (defined herein as
current stores or stores for which leases have been signed as of the date of
termination) by the Company or its subsidiaries as of the date of termination
of Executive's employment with the Company. Nothing herein shall prohibit
Executive from being a passive owner of not more than 1% of the outstanding
stock of another corporation, so long as Executive has no active participation
in the management or the business of such corporation.
(b) During the Non-Compete Period, Executive shall not
directly or indirectly (1) induce or attempt to induce any employee of the
Company or any Subsidiary of the Company to leave the employ of the Company or
such Subsidiary, or in any way interfere with the relationship between the
Company or any such
4
<PAGE> 5
Subsidiary and any employee thereof; (2) induce or attempt to induce any
customer, supplier, licensee or other business relationship of the Company or
any Subsidiary of the Company to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any such
Subsidiary; or (3) make an oral or written disparaging statement, comment or
remark about the Company or any of its Subsidiaries to any employee, customer,
supplier, licensee or other business relationship of the Company or any of its
Subsidiaries or to or for the intended use of any member of the press.
(c) Such Non-Compete Period shall terminate immediately
at such time as the Company and its Subsidiaries no longer operate supermarkets
or food stores.
1.8 Employment-At-Will. It is understood and agreed that
this Agreement constitutes employment-at-will and that notwithstanding (i) any
general or specific policies (whether written or oral) of the Company relating
to the employment or termination of its employees, (ii) any statements made to
Executive, whether made orally or contained in any document, pertaining to
Employee's relationship with the Company, or (iii) assignment of Cause by the
Company, the Company reserves the right to terminate the employment of
Executive by the Company in which event Executive's sole remedy shall be to
receive certain payments and other benefits upon the terms and subject to the
conditions provided for herein.
1.9 Resignations upon Termination. Upon termination of the
Executive, Executive shall be deemed to have resigned from all offices and
directorships, if any, then held with the Company or any of its Subsidiaries or
other affiliates.
ARTICLE 2. REPRESENTATIONS
AND WARRANTIES
2.1 Representations and Warranties of Executive.
Executive represents and warrants to the Company that:
(a) this Agreement constitutes the legal, valid and
binding obligation of Executive, enforceable in accordance with the terms, and
the execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, violate or cause a breach of or default under any
agreement, contract or instrument, order, judgment or decree to which Executive
is a party or by which he is bound, and
(b) Executive is not a party to or bound by any
employment agreement or non-compete agreement with any other person or entity.
5
<PAGE> 6
2.2 Representations and Warranties of the Company. The Company
hereby represents and warrants to Executive that:
(a) the execution, delivery and performance of this
Agreement by the Company does not and will not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order, judgment
or decree to which Company is a party or by which it is bound, and
(b) upon the execution and delivery of this Agreement by
Executive, this Agreement shall be the valid and binding obligation of the
Company enforceable in accordance with its terms.
ARTICLE 3. DEFINITIONS
As used in this Agreement, the following terms shall have the
definitions set forth below:
(a) "Cause" shall mean (1) a material breach of this Agreement by
Executive which is not cured within thirty (30) days after written notice to
Executive from the Compensation Committee; (2) Executive's willful and repeated
failure to comply with the lawful directives of the Board or the Company's
Articles of Incorporation or Bylaws; (3) gross negligence or willful misconduct
by Executive in the performance of his duties hereunder; (4) the commission by
Executive of an act (including, but not limited to, a felony or a crime
involving moral turpitude) causing material harm to the standing and reputation
of the Company or its subsidiaries, as determined in good faith by the Board;
(5) misappropriation, breach of trust or fraudulent conduct by Executive with
respect to the assets or operations of the Company or any of its subsidiaries;
(6) the continued use by Executive of alcohol or drugs to an extent that, in
the good faith determination of the Board, materially interferes with the
performance by Executive of his employment responsibilities under this
Agreement; (7) the repeated threat of Executive to cause, or the actual
occurrence of, damage to the relations of the Company or any of its
subsidiaries with customers, suppliers, lenders, advisors or employees which
damage is materially adverse to the business or operations of the Company or
any of its subsidiaries, and which threat is not terminated or which damage is
not cured following thirty (30) days written notice from the Board; or (8)
continued unauthorized absence from work (other than any such continued
unauthorized absence resulting from Executive's disability).
(b) "Disability" shall mean Executive's inability to substantially
perform his normal duties hereunder for six (6) months or more during any
twelve (12) month period determined in good faith by the Board.
(c) "Subsidiary" of an entity shall mean any corporation or other
business organization of which the securities have a majority of the normal
voting power in
6
<PAGE> 7
electing the board of directors or similar governing body of such entity are,
at the time of determination, owned by such entity directly or indirectly
through one or more subsidiaries.
ARTICLE 4. GENERAL PROVISIONS
4.1 Enforcement. It is the express intention of the
parties that this Agreement be enforced to the fullest extent permitted by
applicable law in order to give full effect to the agreements reached herein.
Accordingly, if at the time of enforcement of Sections 1.6 or 1.7 a court holds
that the restrictions stated herein are unreasonable under the circumstances
then existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area. Because Executive's services are unique and
because Executive has access to Confidential Information, the parties hereto
agree that money damages would be an inadequate remedy for any breach of this
Agreement. In the event of a breach or threatened breach of this Agreement,
the Company, its subsidiaries and their respective successors or assigns may,
in addition to other rights and remedies existing in their favor, apply to any
court of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violation of, the provisions
hereof (without posting a bond or other security).
4.2 Survival. Sections 1.6 and 1.7 and this Article 4 shall
survive and continue in full force and effect in accordance with their terms
notwithstanding any termination of the Employment Period.
4.3 Notices. All notices or other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered personally,
one (1) business day following when sent via a nationally recognized overnight
courier, or when sent via facsimile confirmed in writing to the recipient.
Such notices and other communications will be sent to the addresses indicated
below:
To the Company:
WO Holdings, Inc.
1645 Broadway
Boulder, CO 80302
Attention:
7
<PAGE> 8
With Copy to:
WO Holdings, Inc.
1645 Broadway
Boulder, CO 80302
Attention: Elizabeth C. Cook, General Counsel
To Executive:
Michael C. Gilliland
1654 Broadway
Boulder, CO 80302
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
4.4 Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
4.5 Entire Agreement. This Agreement and those
documents expressly referred to herein embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
4.6 Amendments and Waivers. Any provision of this Agreement may
be amended or waived only with the prior written consent of the Company and
Executive.
4.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Colorado without
giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Colorado or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Colorado.
4.8 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
8
<PAGE> 9
4.9 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or of any term or provision hereof.
4.10 Conflict. In the event of any conflict between the
provisions of this Agreement and the policies and practices of the Company, the
provisions of this Agreement shall govern.
4.11 Negotiation of Agreement. Each of the parties
acknowledge that it has been represented by independent counsel of its choice
throughout all negotiations that have preceded the execution of this Agreement
and that it has executed the same with consent and upon the advice of said
independent counsel. Each party of its counsel cooperated in the drafting and
preparation of this Agreement and the documents referred to herein, and any and
all drafts relating thereto shall be deemed the work product of the parties and
may not be construed against any party by reason of its preparation.
Accordingly, any rule of law, or any legal decision that would require
interpretation of any ambiguities in this Agreement against the party that
drafted it, is of no application and is hereby expressly waived.
4.12 Parties in Interest;Assignment. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
permitted successors, assigns, heirs, and/or personal representatives, except
that neither this Agreement nor any interest herein shall be assigned or
assignable by operation of law or otherwise, by Executive without the prior
written consent of the Company, which such consent the Company may grant or
withhold in its sole discretion. The Company may, without the consent of
Executive, assign this Agreement or any interest herein, by operation of law or
otherwise, to (i) any successor to all or substantially all of its stock,
assets or business by dissolution, merger, consolidation, transfer or assets,
or otherwise, or (ii) any direct or indirect Subsidiary, affiliate or division
of the Company or of any such successor referred in (a) hereof. Nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties and their respective successors and permitted assigns any
rights or remedies under or by reason of this Agreement.
4.13 Dispute Resolution Process. The parties hereby agree
that, in order to obtain prompt and expeditious resolution of any disputes
under this Agreement, each claim, dispute or controversy of whatever nature,
arising out of, in connection with, or in relation to the interpretation,
performance or breach of this Agreement (or any other agreement contemplated by
or related to this Agreement or any other agreement between the Company and
Executive), including without limitation, any claim based on contract, tort or
statute, or the arbitrability of any claim hereunder (a "Claim"), shall be
settled, at the request of any part of this Agreement, by final and binding
arbitration conducted in Denver, Colorado. All such Claims shall be settled by
one arbitrator in accordance with the Commercial Arbitration
9
<PAGE> 10
Rules then in effect of the American Arbitration Association. Such arbitrator
shall be provided through the CFR Institute for Dispute Resolution ("CFR") by
mutual agreement of the parties, provided that, absent such agreement, the
arbitrator shall be appointed by CFR. In either event, such arbitrator may not
have any pre-existing, direct or indirect relationship with any party to the
dispute. Each party hereto expressly consents to, and waives any future
objection to, such forumand arbitration rules. Judgment upon any award may be
entered by any state or federal court having jurisdiction thereof. Except as
required by law (including, without limitation, the rules and regulations of
the Securities and Exchange Commission and the Nasdaq Stock Market, if
applicable), neither party nor the arbitrator shall disclose the existence,
content, or results of any arbitration hereunder without the prior written
consent of all parties. Except as provided herein, the Federal Arbitration Act
shall govern the interpretation, enforcement and all proceedings pursuant to
this Section.
Adherence to this dispute resolution process shall not limit the right
of the Company or Executive to obtain any provisional remedy, including without
limitation, injunctive or similar relief set forth in Section 4.1 from any
court of competent jurisdiction as may be necessary to protect their respective
rights and interests pending arbitration. Notwithstanding the foregoing
sentence, this dispute resolution procedure is intended to be the exclusive
method of resolving any Claims arising out of or relating to this Agreement.
The arbitration procedures shall follow the substantive law of the
State of Colorado, including the provisions of statutory law dealing with
arbitration, as it may exist at the time of the demand for arbitration, insofar
as said provisions are not in conflict with this Agreement and specifically
excepting therefrom sections of any such statute dealing with discovery and
sections requiring notice of the hearing date by registered or certified mail.
4.14 Full Understanding. Executive represents and
agrees that he fully understands his right to discuss all aspects of this
Agreement with his private attorney, and that to the extent, if any, that he
desired, he availed himself of such right. Executive further represents that
he has carefully read and fully understands all of the provisions of this
Agreement (including the non-compete provisions of Section 1.7), that he is
competent to execute this Agreement, that his agreement to execute this
Agreement has not been obtatined by any duress and that he freely and
voluntarily enteres into it, and that he has read this document in its entirety
and fully understands the meaning, intent and consequences of this document.
10
<PAGE> 11
IN WITNESS WHEREOF, this Agreement has been signed and sealed the day first
above written.
COMPANY:
WO HOLDINGS, INC.
By /s/ S. M. HASSAN
-----------------------------------------
EXECUTIVE:
By /s/ MICHAEL C. GILLILAND
-----------------------------------------
Michael C. Gilliland
11
<PAGE> 12
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
DATED JULY 14, 1996 BY AND BETWEEN
WO HOLDINGS, INC. AND MICHAEL C. GILLILAND
This First Amendment to Employment Agreement (the "Agreement") is made as of
the 13th day of August, 1996, by and between WO Holdings, Inc. and Michael C.
Gilliland ("Executive").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Section 1.7(a) is amended as follows:
1.7 Non-Compete; Non-Solicitation.
(a) Executive acknowledges that in the course of her employment
with the Company she will become familiar with the Company's trade secrets and
with other confidential information concerning the Company and its predecessors
and that her services have been and will be of special, unique and
extraordinary value to the Company. The parties also acknowledge that the
availability of the services of the Executive and the related covenant not to
compete provided for herein were material inducements to it in agreeing to
enter into the business combination of Wild Oats Markets, Inc. and Alfalfa's,
Inc. being consummated at the same time that this Agreement is being entered
into. Accordingly, Executive agrees that, during the period in which Executive
is receiving compensation hereunder and for a period of two (2) years following
termination of Executive's employment with the Company for any reason (the
"Non-Compete Period"), she shall not directly or indirectly own, manage,
control, participate in, consult with, render services for, or in any manner
engage in any supermarket, food store or retailer of health and beauty aids
located within a ten (10) mile radius of any store operated (defined herein as
current stores or stores for which leases have been signed as of the date of
termination) by the Company or its subsidiaries as of the date of termination
of Executive's employment with the Company. Notwithstanding the foregoing,
this non-compete shall not apply to Executive's stock ownership in Pretty Good
Groceries, Inc. which owns and operates Lolita's Market and Dillala's Pretty
Good Grocery. Nothing herein shall prohibit Executive from being a passive
owner of not more than 1% of the outstanding stock of another corporation, so
long as Executive has no active participation in the management or the business
of such corporation.