EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 12th of April 2000, by and between IVC
Industries, Inc., a Delaware corporation (the "Company"), with offices at 000
Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000, and Xxxxxxx Xxxxxxxx ("Xxxxxxxx"),
0000 Xxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter "the Agreement").
WHEREAS, the Company wishes to assure itself of the services of Xxxxxxxx;
and
WHEREAS, Xxxxxxxx is willing to enter into this Agreement upon the terms
and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
undertakings and agreements set forth herein, the sufficiency of which is
acknowledged by the parties, the Company and Xxxxxxxx agree as follows:
1. Employment
The Company shall employ Xxxxxxxx to serve the Company as its Chief
Operating Officer during the Term of Employment as set forth in Paragraph 2 of
this Agreement. Xxxxxxxx shall report to the Chief Executive Officer of the
Company and/or to any other individual as may be designated by the Board of
Directors of the Company. Xxxxxxxx'x duties shall be consistent with his title
of Chief Operating Officer. Xxxxxxxx shall devote his best efforts and his
entire business time to advancing the interests of the Company and in execution
of his duties and obligations to the Company as its Chief Operating Officer. It
is understood that Xxxxxxxx'x services during the Term of Employment shall be
performed primarily in the Freehold, New Jersey area and/or such other area in
which the Company's headquarters are located, subject to such reasonable
travel outside that area and in and outside the United States as performance of
his duties and the business of the Company may reasonably require.
2. Term of Employment
"Term of Employment," as such phrase is used throughout this Agreement,
shall mean the period beginning on the effective date of this Agreement as set
forth in Paragraph 14 hereof and ending on the third annual anniversary of such
effective date, unless this Agreement and/or Xxxxxxxx'x employment with the
Company is terminated earlier thereto in accordance with the terms of Paragraph
4 of this Agreement.
3. Compensation and Other Benefits
(a) The Company shall pay Xxxxxxxx an annual base salary of $175,000.00
for Xxxxxxxx'x Term of Employment under this Agreement, payable in equal
installments in accordance with the Company's customary payroll practices.
Annually on or about October 15th of each year during the Term of Employment,
Xxxxxxxx shall meet with the Company's Chief Executive Officer and Compensation
Committee for a review and adjustment, if any at the sole discretion of the
Chief Executive Officer and Compensation Committee, of Xxxxxxxx'x base salary
based upon Xxxxxxxx'x performance in the year in question, the financial
performance of the Company for the year in question, the current financial
condition of the Company and any and all other factors deemed relevant in the
sole discretion of the Chief Executive Officer and/or Compensation Committee.
The first such salary review to be conducted under the terms of this Paragraph
3(a) shall be on October 15, 2000 and continue annually thereafter for the Term
of Employment. Nothing contained in this Agreement, however, guarantees or
2
requires the Company to increase Xxxxxxxx'x base salary at any time during the
Term of Employment.
(b) During the Term of Employment, the Company may in the sole discretion
of the Company's Chief Executive Officer and Compensation Committee pay Xxxxxxxx
an annual bonus based upon Xxxxxxxx'x performance during the year in question,
the financial performance of the Company during the year in question, the
current financial condition of the Company and any and all other factors deemed
relevant in the sole discretion of the Chief Executive Officer and/or
Compensation Committee. The first such discretionary bonus review under the
terms of this Paragraph 3(b) shall be on October 15, 2000, and continue annually
thereafter for the Term of Employment. Nothing contained in this Agreement
guarantees or requires the Company to pay Xxxxxxxx a bonus at any time during
the Term of Employment.
(c) During the Term of Employment, Xxxxxxxx shall be entitled to
participate and shall be included in any pension, 401(k), stock option and/or
other similar plan or program of the Company as may be in effect from time to
time for executives of the Company and such participation shall be in accordance
with the terms of such plans and/or programs provided by the Company subject to
modification and/or termination by the Company. Nothing contained in this
Agreement obligates and/or requires the Company to create, obtain and/or
maintain any such plans and/or programs. This Agreement merely requires that in
the event the Company has such plans and/or programs in effect, Xxxxxxxx be
permitted to participate therein.
(d) During the Term of Employment, Xxxxxxxx shall be entitled to
participate in any group hospitalization, medical, health, accident, and/or
disability insurance plans
3
and/or programs of the Company now existing or hereafter established for
executives of the Company in accordance with the terms of such plans and/or
programs subject to modification or termination of such plans and/or programs by
the Company. Nothing contained in this Agreement obligates the Company to
create, obtain and/or maintain group hospitalization, medical, health, accident,
and/or disability insurance plans and/or programs. This Agreement merely
requires that in the event the Company has such plans and/or programs in effect,
Xxxxxxxx be permitted to participate therein.
(e) During the Term of Employment, the Company shall provide Xxxxxxxx with
a term life insurance benefit in an amount equal to Xxxxxxxx'x annual base
salary under Paragraph 3(a) of this Agreement. The Company at its option may
elect to fulfill its obligations under this Paragraph 3(e) by purchasing a term
life policy from a third-party insurance company or by the Company's
administration of a self-insured plan. The beneficiary of such life insurance
benefits provided under this Paragraph 3(e) shall be designated by Xxxxxxxx in
accordance with the terms and conditions of any such plan and/or policy. Should
Xxxxxxxx fail to designate a beneficiary, the Company shall be designated as the
beneficiary of any such life insurance benefits provided hereunder.
(f) During the Term of Employment, the Company agrees to reimburse
Xxxxxxxx for all reasonable business expenses incurred by him in connection with
the performance of his duties hereunder in accordance with the policies of the
Company.
(g) During the Term of Employment, the Company shall furnish Xxxxxxxx with
office space, administrative support staff, facilities and other similar
accommodations commensurate with his position and reasonably necessary for the
performance of his duties hereunder.
4
(h) During each year of the Term of Employment, Xxxxxxxx shall be entitled
to three (3) weeks of paid vacation (in addition to all holidays observed by the
Company) at such time or times as may be selected by him, which do not
unreasonably interfere with the proper performance of his duties hereunder. In
the event that Xxxxxxxx does not use all three (3) weeks of vacation during any
year of the Term of Employment, the Company shall pay Xxxxxxxx an amount equal
to the pro rata daily compensation rate for Xxxxxxxx based upon his base salary
for such year multiplied by the number of unused vacation days for such year to
which Xxxxxxxx is entitled under the terms of this Agreement. Payment shall be
made in accordance with the Company's payroll practices no later than sixty (60)
days after the end of each such year.
(i) The Company shall lease an automobile for Xxxxxxxx'x use during the
Term of Employment, and the Company shall be responsible to pay any and all
monthly lease charges and expenses up to and not in excess of $1000.00 per
month. The Company shall also be responsible to pay any and all costs, charges
and/or expenses relating to the use and/or maintenance of the vehicle leased for
Xxxxxxxx'x use as provided under this Paragraph 3(i), including without
limitation lease initiation fees, automobile insurance, service, gasoline, and
lease termination fees, costs, charges, assessments and/or expenses. As soon as
practical after execution of this Agreement, the Company shall take all steps
necessary to assume the obligations under the automobile lease currently in
Xxxxxxxx'x name individually and shall be responsible to pay any and all
expenses relating to the transfer and/or assignment of such lease to the
Company. Xxxxxxxx shall fully cooperate with the Company to effectuate the
transfer and/or assignment of such lease. Any and all costs and expenses paid by
the Company for the leased vehicle that are allocated to
5
Xxxxxxxx'x personal use of the leased vehicle shall be treated and reported by
the Company as W-2 compensation to Xxxxxxxx. Xxxxxxxx shall be responsible to
provide the Company with an accurate allocation as to the amount of business use
versus personal use of the leased vehicle and shall provide the Company with
documentation supporting such allocation.
4. Termination of Employment
(a) Xxxxxxxx'x employment shall terminate upon his death and may be
terminated, at the option of the Company, upon written notice to Xxxxxxxx only
(i) as a result of Xxxxxxxx'x "disability," as defined in Paragraph 4(b) below,
or (ii) for "cause," as defined in Paragraph 4(c) below. Termination under
either (i) or (ii) of this Paragraph 4(a) shall be effective thirty (30) days
after the Company gives Xxxxxxxx written notice of termination.
(b) As used herein, "disability" shall mean such physical or mental
disability or incapacity of Xxxxxxxx, which has substantially prevented him from
performing his principal duties hereunder during any period of 150 consecutive
calendar days or for a total of 180 calendar days (whether or not consecutive)
in any 365-day period of the Term of Employment. During such period of
disability and until notice of termination is given by the Company under
Paragraph 4(a)(i) of this Agreement, Xxxxxxxx shall continue to receive his base
salary compensation and benefits described in Paragraph 3(a)-(i) of this
Agreement, reduced by the amount, if any, of disability benefits received by
Xxxxxxxx during this period, including benefits paid by the State of New Jersey
and/or benefits provided under any policy of disability insurance covering
Xxxxxxxx.
6
(c) As used herein, "cause" shall mean (i) willful misconduct involving
bad faith by Xxxxxxxx in respect of his duties and obligations under this
Agreement, which misconduct causes or was intended by Xxxxxxxx to cause
significant injury to the Company, or (ii) commission of a crime involving moral
turpitude which would adversely affect the Company should Xxxxxxxx continue to
serve as an employee of the Company. "Cause" shall not include a bona fide
disagreement over a corporate policy so long as Xxxxxxxx does not willfully
violate on a continuing basis any specific written directions from the Company's
Board of Directors, Chief Executive Officer and/or any other individual to whom
Xxxxxxxx reports pursuant to the direction of the Board of Directors and/or
Chief Executive Officer, provided such directions are consistent with the
provisions of this Agreement.
(d) Upon termination of Xxxxxxxx'x employment as a result of death,
disability or for cause, the Company shall only be required to pay, within ten
(10) business days of the effective date of the termination as provided in
Paragraph 4(a) of this Agreement, to Xxxxxxxx or to his beneficiaries, personal
representatives or his Estate, as the case may be, any unpaid annual base salary
accrued and unpaid as of the effective date of the termination. All payments
made under the terms of this Paragraph 4(d) shall be in full and complete
satisfaction of any and all claims Xxxxxxxx may have against the Company, its
officers, directors, employees, shareholders, agents, attorneys and
representatives relating to his employment with the Company and/or the
termination thereof, including without limitation, all claims under this
Agreement and any and all claims under applicable state or federal law.
7
(e) If Xxxxxxxx'x employment is terminated by the Company before the
expiration of the Term of Employment for any reason other than death, disability
or cause, then Xxxxxxxx shall be entitled to receive a Severance Package in an
amount equal to the greater of twelve (12) months base salary or the amount of
base salary for the period of time remaining under the Term of Employment as of
the effective date of termination. Such Severance Package shall be paid in
accordance with the Company's customary payroll practices on the dates it would
have been paid had Xxxxxxxx'x employment not been terminated before the
expiration of the Term of Employment. Xxxxxxxx shall also continue to
participate for twelve months from the effective date of termination or the
period of time remaining under the Term of Employment as of the date of
termination, whichever time period is longer, in all plans and/or programs of
the Company described in Paragraphs 3(c)-(e) of this Agreement that were in
effect as of the date of termination to the extent that such continued
participation is permitted under the terms and provisions of such plans and/or
programs and is not otherwise prohibited by law. In the event Xxxxxxxx'x
continued participation in any group health, medical, disability and/or life
insurance plan and/or program in effect under Paragraph 3(d)-(e) of this
Agreement is prohibited by the terms of such plans and/or programs or otherwise
prevented by law, then in lieu of such continued participation therein the
Company shall pay to Xxxxxxxx for the applicable time period described above
amounts equal to the actual out-of-pocket cost (grossed up for tax effect)
incurred by Xxxxxxxx to participate in plans and/or programs privately obtained
by him providing substantially similar benefits to those under the Company's
plan or program providing health, medical, disability and/or life insurance from
which such participation is barred. All payments
8
made under the terms of this Paragraph 4(e) shall be in full and complete
satisfaction of any and all claims Xxxxxxxx may have against the Company, its
officers, directors, shareholders, agents, attorneys, employees and
representatives relating to his employment with the Company and/or the
termination thereof, including without limitation, all claims under this
Agreement and any and all claims under applicable state or federal law.
(f) Xxxxxxxx shall be permitted, upon not less than thirty (30) days
written notice to the Company, to terminate this Agreement in the event (i) the
Company fails to perform in any material respect its obligations under this
Agreement or shall violate or fail to comply in any material respect with the
provisions hereof or fail in any way to fulfill the obligations contained in
this Agreement and such failure shall continue for thirty (30) days after
written notice thereof is given by Xxxxxxxx to the Company; or (ii) other than
in connection with termination of Xxxxxxxx'x employment for death, disability or
cause, the Company removes Xxxxxxxx from the position of Chief Operating
Officer.
(g) If Xxxxxxxx elects to terminate this Agreement in accordance with the
terms of Paragraph 4(f), Xxxxxxxx shall be entitled to receive, and the Company
shall be obligated to provide and pay to Xxxxxxxx the Xxxxxxxxx Package and
benefits in accordance with the terms of Paragraph 4(e) of this Agreement. All
payments made under the terms of this paragraph shall be in full and complete
satisfaction of any and all claims Xxxxxxxx may have against the Company, its
officers, directors, employees, shareholders, agents, attorneys and
representatives relating to his employment with the Company and/or termination
thereof, including without limitation, all claims under this Agreement and any
and all claims under applicable state or federal law.
9
5. Restrictive Covenants
(a) Except as required in the performance of his duties to the Company, or
as authorized in writing by the Company, Xxxxxxxx shall not at any time during
or after the Term of Employment disclose or use, directly or indirectly, any
trade secrets and/or confidential or proprietary information (collectively
referred to as "Confidential Information") belonging to or used by the Company
or any of its subsidiaries and of which Xxxxxxxx shall obtain knowledge by
reason of his employment with the Company. All such Confidential Information
shall be retained by Xxxxxxxx in trust in a fiduciary capacity for the sole
benefit of the Company. Such Confidential Information includes, but is not
limited to, information with respect to marketing, advertising and sales
presentation methods and materials, customer and supplier lists, external and
internal business forms, manuals, corporate planning, manufacturing,
distribution and marketing processes, procedures, devices and materials utilized
by the Company in providing goods to customers, plans for expansion into new
areas or markets and information regarding internal operations, together with
all written and graphic materials relating to all or any part of the same.
(b) During the Term of Employment and for two (2) years thereafter,
Xxxxxxxx shall not, directly or indirectly, solicit any person, firm, entity or
corporation who is or was, during Xxxxxxxx'x Term of Employment, a
client/customer of the Company. Company clients/customers shall mean (1) those
actual clients and customers of the Company, and (2) those active prospective
clients or customers of the Company, both
10
past and present, at any time during the two (2) year period immediately
preceding the termination of Xxxxxxxx'x employment with the Company.
(c) Xxxxxxxx recognizes that the Company's employees are a valuable
resource of the Company. Xxxxxxxx agrees that during the Term of Employment and
for two (2) years thereafter, he shall not, either alone or in conjunction with
any person or entity, solicit, induce, and/or recruit any Company employee to
leave the employ of the Company.
(d) Xxxxxxxx shall not, at any time during or after the Term of
Employment, knowingly disparage in any material manner or in any material
respect the Company and/or any of its subsidiaries, officers and/or directors
and/or the Company's financial soundness, responsibility, personnel, products or
practices.
(e) Upon expiration of the Term of Employment, termination of employment,
termination of the Agreement and/or or at any other time as the Chief Executive
Officer and/or Board of Directors of the Company may request, Xxxxxxxx shall
promptly deliver to the Company all Confidential Information and materials in
his possession, including, but not limited to, sales presentation materials,
other internal and external business forms, manuals, correspondence, notes and
customer and supplier lists together with all copies thereof, and Xxxxxxxx shall
not make or retain any copy or extract of any of the foregoing.
(f) As a means reasonably calculated to prevent Xxxxxxxx from disclosing
or making accessible to any person or entity any Confidential Information
Xxxxxxxx acquired during the Term of Employment which would cause the Company's
business to be prejudiced, and because disclosure or use of such Confidential
Information is difficult
11
to detect and establish, during the Term of Employment and for one (1) year
thereafter Xxxxxxxx agrees that he will not, without first having obtained the
written consent of the Company, which consent shall not be unreasonably withheld
inconsistent with the protections to be afforded the Company under this
Agreement, enter into the employ of, render services to, or engage in or become
the proprietor, partner, or stockholder (except a stockholder holding less than
five percent (5%) of the outstanding voting shares of any publicly owned
corporation) of any entity doing business in the State of New Jersey and/or in
any other state or country in which the Company is licensed to do business which
directly competes with the Company.
(g) Xxxxxxxx acknowledges that his breach of any of the restrictive
covenants contained in Paragraph 5 of this Agreement can cause irreparable
damage to the Company for which the remedy at law would not be adequate.
Accordingly, in addition to any other remedy provided by law or equity, the
Company shall be entitled to injunctive relief restraining Xxxxxxxx from any
actual or threatened violation of any of the terms of this Paragraph 5 or any
other appropriate decree of specific performance (without any bond or other
security being required), including, without limitation, an injunction
restraining Xxxxxxxx from rendering any services to any person or entity in
competition with the then business being conducted by the Company and/or to whom
all or any part of any Confidential Information has been disclosed by Xxxxxxxx.
6. Notices
Any notice made or to be given under the terms of this Agreement shall be
effective and duly given only if it is in writing and delivered via hand
delivery or by reliable overnight delivery service (e.g. Federal Express) to the
party at its address set
12
forth below or at such other addresses as the parties may specify by notice to
the other in accordance with the terms hereof:
(a) To Xxxxxxxx -
Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Phone No. (000) 000-0000
(b) To the Company -
E. Xxxxxx Xxxxx
Chief Executive Officer
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx & Associates, P.C.
P.O. Box 2355
1776 On the Green, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
7. Prior Agreements
This Agreement supersedes and replaces all prior understandings,
arrangements and agreements of employment, if any, between the Company and
Xxxxxxxx.
8. Assigns and Successors
Subject to the limitations set forth below, this Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, representatives and successors. This Agreement shall not be assignable by
Xxxxxxxx and shall only be
13
assignable by the Company to (i) any corporation or entity resulting from any
reorganization, merger and/or consolidation of the Company with any other
corporation and/or entity; or (ii) any corporation or entity to which the
Company may sell all or substantially all of its assets. In addition, this
Agreement shall remain in full force and effect and shall be binding upon any
corporation or entity resulting from any reorganization, merger and/or
consolidation of the Company with another corporation or entity and/or any
corporation or entity that acquires all or substantially all of the Company's
assets.
9. Invalid or Unenforceable Provisions
In the event any provision of this Agreement shall be determined to be
invalid or unenforceable in any respect, the remaining provisions of this
Agreement shall not be affected thereby and shall continue in full force and
effect.
10. Amendment
This Agreement may be amended or modified only by a written instrument
signed by both the Company and Xxxxxxxx.
11. Construction
This Agreement shall be construed under the laws of the State of New
Jersey. The parties agree and acknowledged that this Agreement is the result of
negotiations between the parties and that the terms hereof shall not be
construed against the party responsible for preparation of this Agreement.
12. Headings
Paragraph headings are for convenience only and shall not be considered a
part of the terms and provisions of the Agreement.
14
13. Waiver
The failure of a party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver or deprive that party
of the right to thereafter insist upon strict adherence to that term or any
other term of this Agreement.
14. Effective Date
The Effective Date of this Agreement is April 12, 2000.
IN WITNESS WHEREOF, the parties hereunto set their hands and seal this
12th day of April 2000.
THE COMPANY
IVC INDUSTRIES, INC.
Attested:
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ E. Xxxxxx Xxxxx
-------------------------------- -------------------------------------
Xxxxxxx Xxxxxx E. Xxxxxx Xxxxx
Secretary Chief Executive Officer
Seal
Witnessed by: EMPLOYEE
/s/ G.O. Xxxxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------- -------------------------------------
Notary Public Xxxxxxx Xxxxxxxx
15
