EXHIBIT 10.13
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT, dated as of September ___,
1997, is by and between Whole Foods Market, Inc., a Texas corporation ("WFM"),
and Mark S. Crossen ("Team Member").
W I T N E S S E T H:
WHEREAS, Team Member has served as the chief executive officer of Amrion,
Inc., a Colorado corporation ("Amrion"); and
WHEREAS, WFM and Amrion are parties to an Agreement and Plan of Merger,
dated as of June 9, 1997 (the "Merger Agreement"), pursuant to which Amrion will
become a wholly-owned subsidiary of WFM; and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the closing of the transactions contemplated by the Merger
Agreement; and
WHEREAS, Team Member and WFM desire to set forth the terms upon which Team
Member will join the employ of WFM;
NOW, THEREFORE, in consideration of the foregoing recital and of the mutual
covenants set forth below, the parties hereto agree as follows:
1. Employment. Team Member agrees to enter into the employment of WFM,
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and WFM agrees to employ Team Member, on the terms and conditions set forth
below. Team Member agrees during the term of his employment to devote his
business time (at least 40 hours per week) and his best efforts, skills and
abilities exclusively to the performance of his duties as stated in this
Agreement and to the furtherance of WFM's business. Team Member's duties shall
be to serve as chief executive officer of Amrion and to carry out the duties
customarily associated with such office, as may be described by the Board of
Directors of WFM. WFM shall provide Team Member with an office and such support
staff consistent with WFM's senior executives. Team Member shall use his best
efforts to preserve the business of WFM, its subsidiaries and affiliates, and
the goodwill of all employees, customers, suppliers and other persons having
business relations with WFM, its subsidiaries and affiliates.
It is contemplated that Team Member shall remain located in the
metropolitan area in which he resides on the date hereof; provided, however,
Team Member may from time to time be required to do such travelling as the Board
of Directors of WFM may reasonably request. If WFM should require Team Member
to relocate more than 30 miles from the Boulder, Colorado metropolitan area,
Team Member may terminate
his employment and such termination shall be deemed to be a termination by WFM
without "just cause," as defined in Section 4 hereof.
2. Compensation and Benefits. WFM shall pay to Team Member as a base
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salary the sum of $170,000 per year during the term of this Agreement, payable
in accordance with WFM's normal payroll procedures, subject to all appropriate
withholdings. Increases to such base salary shall be determined on an annual
basis by the WFM Compensation Comittee in accordance with the WFM executive
compensation policy and, in any event, shall not be less than the base salary
granted to WFM's Chief Executive Officer. Team Member shall also be entitled to
receive a bonus comparable to that paid to similarly situated senior executives
of WFM and its subsidiaries, subject to the allowed "salary cap" amount under
the WFM executive compensation plan. Team Member shall be entitled to
participate in employee benefit programs of WFM in the same manner as similarly
situated senior executives of WFM and its subsidiaries. Nothwithstanding the
foregoing, Team Member shall be entitled to 12 weeks of paid vacation time
during the first year of the term of his employment and eight weeks during each
of the succeeding two years of the term of his employment hereunder.
3. Stock Options. At the time of each WFM annual stakeholders' meeting
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during the term of this Agreement (commencing with the 1998 stakeholders'
meeting tentatively scheduled for March 1998), Team Member shall receive a stock
option grant of such number of shares of WFM common stock as is comparable to
that granted to the executive officers of WFM.
4. Employment Term; Severance. The term of Team Member's employment under
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this Agreement shall begin on the date of this Agreement and shall continue
until the earliest of (a) the date WFM terminates such employment for "just
cause" upon three days' written notice to Team Member, (b) the death or
disability of Team Member, or (c) the third anniversary date of this Agreement.
For purposes of this Agreement, "just cause" for termination shall mean (i) the
performance of duties in a manner which constitutes gross negligence or willful
misconduct by the Team Member or (ii) the commission by Team Member of any act
which materially and adversely affects WFM's business reputation.
5. Nondisclosure Agreement. Team Member, during the term of employment
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under this Agreement, shall have continuing access to various trade secrets and
proprietary and confidential information consisting of, but not limited to, non-
public financial information, processes, computer programs, compilations of non-
public business information, records, sales procedures, customer requirements,
pricing techniques, customer lists, methods of doing business and other
confidential information (collectively referred to as the "Trade Secrets"),
which are owned by Amrion. Team Member acknowledges and agrees that the Trade
Secrets are valuable,
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special and unique assets of Amrion, the disclosure of which could cause
substantial injury and loss of profits and goodwill to WFM. Team Member shall
not use in any way or disclose any of the Trade Secrets, directly or indirectly,
either during the term of this Agreement or at any time thereafter, except as
required in the course of his employment under this Agreement. All files,
records, documents, information, data and similar items relating to the business
of Amrion, whether prepared by Team Member or otherwise coming into his
possession, shall remain the exclusive property of Amrion and shall not be
removed from the premises of Amrion under any circumstances without the prior
written consent of the Board of Directors of WFM (except in the ordinary course
of business during Team Member's period of active employment under this
Agreement), and in any event shall be promptly delivered to Amrion upon
termination of this Agreement.
6. Noncompetition Agreement. Team Member acknowledges and agrees that the
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experience he will gain while employed and the information he will acquire
regarding the Trade Secrets will enable him to injure Amrion if he should
compete with Amrion in a business that is competitive with the business
conducted or to be conducted by Amrion. For these reasons, Team Member hereby
agrees that, except as required hereunder or permitted by WFM, Team Member shall
not, during the "Restricted Period" (as defined herein), directly or indirectly,
either as an individual, a partner or a joint venturer, or in any other
capacity, (i) invest (other than investments in publicly-owned companies which
constitute not more than 1% of the voting securities of any such company) or
engage in any "Restricted Business" (as defined herein) or (ii) accept
employment with or render services to a competitor of Amrion as a director,
officer, agent, employee or consultant. As used herein, the "Restricted Period"
shall mean the greater of (i) the period of Team Member's employment with WFM
and continuing three years after such employment terminates or (ii) six years
from the date hereof; and the "Restricted Business" shall mean the development,
production or marketing of high quality nutriceuticals, nutritional supplements,
herbs, herbal formulas, vitamins, minerals and homeopathic medicines. As
separate and independent consideration for Team Member's agreement to the
provisions of this Section 6, WFM shall pay (provided that Team Member is not in
default in the compliance with Sections 5, 6 and 7 of this Agreement) to Team
Member the sum of $300,000 on the first anniversary date of this Agreement and
the sum of $300,000 on each of the second and third anniversary dates of this
Agreement, the sum of $350,000 on each of the fourth and fifth succeeding
anniversary dates of this Agreement and the sum of $400,000 on the sixth
anniversary date of this Agreement.
7. Nonemployment Agreement. For a period of three years after the
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termination or cessation of his employment with WFM for any reason whatsoever,
Team Member shall not, on his own behalf or on behalf of any other person,
partnership, association, corporation or other entity, hire or solicit or in any
manner attempt to influence or induce any employee of WFM or its affiliates to
leave the
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employment of WFM or its affiliates, nor shall he use or disclose to any person,
partnership, association, corporation or other entity any information obtained
while an employee of WFM concerning the names and addresses of WFM's employees.
8. Severability. The parties hereto intend all provisions of Sections 5,
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6 and 7 hereof to be enforced to the fullest extent permitted by law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any provision of Sections 5, 6 or 7 hereof is too broad to be enforced as
written, the parties intend that the court reform the provision to such narrower
scope as it determines to be reasonable and enforceable. In addition, however,
Team Member agrees that the noncompetition agreements, nondisclosure agreements
and nonemployment agreements set forth above each constitute separate agreements
independently supported by good and adequate consideration and shall be
severable from the other provisions of, and shall survive, this Agreement. The
existence of any claim or cause of action of Team Member against WFM or Amrion,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by WFM of the covenants and agreements of Team Member
contained in the noncompetition, nondisclosure or nonemployment agreements. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision never comprised a part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
9. Notices. Any notices, consents, demands, requests, approvals and other
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communications to be given under this Agreement by either party to the other
shall be deemed to have been duly given if given in writing and personally
delivered or sent by mail (registered or certified) or by a recognized "next-day
delivery service" to (i) in the case of WFM, the address set forth in the Merger
Agreement, and (ii) in the case of Team Member, the address set forth in the
employment records of WFM. Notices delivered personally shall be deemed
communicated as of actual receipt; mailed notices shall be deemed communicated
as of three days after mailing.
10. Entire Agreement. This Agreement supersedes any and all other
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agreements, either oral or written, between the parties hereto with respect to
the subject matter hereof and contains all of the covenants and agreements
between the parties with respect thereto.
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11. Modification. No change or modification of this Agreement shall be
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valid or binding upon the parties hereto, nor shall any waiver of any term or
condition in the future be so binding, unless such change or modification or
waiver shall be in writing and signed by the parties hereto.
12. Governing Law; Arbitration. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Texas. Any controversy or
dispute among the parties arising in connection with this Agreement shall be
submitted to a panel of three neutral arbitrators and finally settled by
arbitration in accordance with the commercial arbitration rules and procedures
of the American Arbitration Association. Each of the disputing parties shall
appoint one arbitrator, and these two arbitrators shall independently select a
third arbitrator. Arbitration shall take place in Austin, Texas or such other
location as the arbitrators may select. The prevailing party in such arbitration
shall be entitled to the award of all costs and attorneys' fees in connection
with such action. Any award for monetary damages resulting from nonpayment of
sums due hereunder shall bear interest from the date on which such sums were
originally due and payable. Judgment upon the award rendered may be entered in
any court having jurisdiction or application may be made to such court for
judicial acceptance of the award and an order of enforcement, as the case may
be.
13. Counterparts. This Agreement may be executed in counterparts, each of
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which shall constitute an original, but all of which shall constitute one
document.
14. Costs. If any action at law or in equity is necessary to enforce or
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interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
15. Assignment. WFM shall have the right to assign this Agreement to its
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successors or assigns. The terms "successors" and "assigns" shall include any
person, corporation, partnership or other entity that buys all or substantially
all of WFM's assets or all of its stock, or with which WFM merges or
consolidates. The rights, duties and benefits to Team Member hereunder are
personal to him, and no such right or benefit may be assigned by him; provided,
however, that if Team Member dies prior to the expiration of the term of
employment, any monies that may be due him from WFM under this Agreement as of
the date of his death shall be paid to his estate.
16. Binding Effect. This Agreement shall be binding upon the parties
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hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and assigns.
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[signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
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Mark S. Crossen
WHOLE FOODS MARKET, INC.
By:
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