EXHIBIT 10.33
Employment Agreement
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of November
30, 1999 between Bactolac Pharmaceutical Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxx (the "Executive").
RECITALS
A. This Agreement is entered into in connection with the acquisition by
the Company of ASH Corp., a Mississippi corporation ("ASH") pursuant to that
certain Agreement and Plan of Merger dated October 25, 1999 by and among
Nutrition For Life International, Inc., Advanced Nutraceuticals, Inc., AC
Acquisition Company, ASH and the shareholders of ASH, as amended on November 24,
1999, which included the addition of the Company as a party (the "Merger
Agreement").
B. The Company desires to employ the Executive, and the Executive desires
to be so employed by the Company, on the terms and subject to the conditions set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises
set forth in this Agreement, the Company and the Executive hereby agree as
follows:
1. Employment.
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(a) Subject to the terms and conditions contained herein, the Company
employs the Executive, and the Executive accepts such employment, from the date
hereof until the earlier of (i) November 30, 2002 or (ii) the date such
employment is terminated pursuant to Section 4 of this Agreement. During the
Executive's employment under this Agreement, the Executive shall perform such
duties for the Company as may from time to time be assigned to the Executive by
the Board of Directors of the Company (the "Board"). The Executive shall have
the title of Chief Executive Officer of the ASH Division of the Company and such
other titles as from time to time may be assigned to the Executive by the Board.
(b) The Executive will devote his entire business time, energy,
attention and skill to the services of the Company and its affiliates and to the
promotion of their interests. So long as the Executive is employed by the
Company, the Executive shall not, without the written consent of the Company:
(i) engage in any other activity for compensation, profit or
other pecuniary advantage, whether received during or after the term of this
Agreement;
(ii) render or perform services of a business, professional, or
commercial nature other than to or for the Company, either alone or as an
employee, consultant, director, officer, or partner of another business entity,
whether or not for compensation, and whether or not
such activity, occupation or endeavor is similar to, competitive with, or
adverse to the business or welfare of the Company; or
(iii) invest in or become a shareholder of another corporation or
other entity; provided, that the Executive's investment solely as a shareholder
in another corporation shall not be prohibited hereby so long as such investment
is not in excess of two percent (2%) of any class of shares that are traded on a
national securities exchange or quoted on the NASDAQ National Market.
2. Location of Employment. The Executive's principal place of employment
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shall be at the executive offices of the ASH Division of the Company located in
Gulfport, Mississippi or in the same general area; provided, that at the
direction of the Board, the Executive may from time to time be required to
travel to various domestic and foreign locations.
3. Compensation.
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(a) In exchange for full performance of the Executive's obligations
and duties under this Agreement, the Company shall pay the Executive a base
salary at a monthly rate of $12,500, payable in accordance with the Company's
standard payroll practices. In any month in which the Executive shall be
employed for less than the entire number of days in such month, the compensation
payable under this Section 3(a) shall be prorated on the basis of the number of
days during which the Executive was actually employed divided by the number of
days in such month. The base salary described in subsection (a) hereof is a
gross amount, and the Company shall be required to withhold from such amount
deductions with respect to Federal, state and local taxes, FICA, unemployment
compensation taxes and similar taxes, assessments or withholding requirements.
(b) In addition to the base salary, Executive shall be entitled to a
performance bonus (the "Bonus") at the discretion of the Board.
(c) During the Executive's employment under this Agreement, the
Executive shall also be reimbursed by the Company for reasonable business
expenses actually incurred or paid by the Executive, consistent with the
policies established by the Board, in rendering to the Company the services
provided for in this Agreement, upon presentation of expense statements or such
other supporting information as is consistent with the policies of the Company.
(d) The Executive shall be entitled to 15 business days vacation for
each full year of employment under this Agreement, which vacation time will
accrue in accordance with the vacation policy of the Company.
(e) The Executive shall be entitled to participate in all benefit
plans (including deferred compensation plans and any medical, dental or life
insurance plans) which shall be available from time to time to the domestic
management employees of the Company generally, except to the extent such
participation in any plan would alter the intended tax treatment of such plan;
provided, however, that the Executive shall have no right under this Agreement
to participate in any additional stock option, stock purchase or other plan
relating to shares of capital stock of the Company or its
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affiliates. The Executive acknowledges and agrees that the Board may in its
discretion terminate at any time or modify from time to time any such benefit
plans.
(f) The Executive shall be entitled to the continued use of the car
presently leased by Bactolac.
4. Termination.
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(a) The employment of the Executive under this Agreement may be
terminated by the Company immediately upon giving the Executive notice if the
Executive has been unable to discharge his essential job duties by reason of
illness or injury for either (A) a period of ninety (90) consecutive days or (B)
one hundred eighty (180) days in any twelve month period. In the event of any
dispute regarding the existence of Executive's Disability hereunder, the matter
will be resolved by the determination of a majority of three physicians
qualified to practice medicine in Mississippi, one to be selected by each of
Executive and the Board and the third to be selected by the two designated
physicians. For this purpose, Executive will submit to appropriate medical
examinations.
(b) The employment of the Executive under this Agreement shall
terminate on the date of the Executive's death.
(c) The employment of the Executive under this Agreement may be
terminated by the Company for Cause. For purposes of this Agreement, "Cause"
shall mean (i) the willful failure or refusal by the Executive to perform his
duties hereunder which has not ceased within ten (10) business days after
written demand for substantial performance is delivered to the Executive by the
Company, which demand identifies the manner in which the Company believes that
the Executive has not performed such duties; (ii) the Executive shall recklessly
or intentionally engage in misconduct toward the Company which is materially
injurious to the Company or its Subsidiaries, monetarily or otherwise
(including, but not limited to, conduct in violation of the confidentiality or
solicitation agreements herein or the non-competition agreement executed with
respect to the merger of ASH Corporation and the Company); (iii) the conviction
of the Executive of or the entering of a plea of nolo contendre by the Executive
with respect to, a felony or a crime involving moral turpitude; or (iv) breach
of this Agreement, including performance by Executive of Executive's duties
determined by the Board to be inadequate in a material respect.
(d) The employment of the Executive under this Agreement shall
terminate upon receipt by the Board of a written notice of resignation signed by
the Executive or, if no notice is given, on the date on which the Executive
voluntarily terminates his employment relationship with the Company.
(e) If the Executive's employment is terminated pursuant to this
Section 4 the Executive shall not be entitled to any compensation or benefits
from the Company, under Section 3 of this Agreement or otherwise, except for the
following:
(i) base salary and vacation pay accrued, and reasonable
business expenses incurred, under Section 3 of this Agreement through the date
of such termination; and
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(ii) such benefits, if any, as may be required to be provided by
the Company under the Comprehensive Omnibus Budget Reconciliation Act (COBRA).
(f) Executive may terminate his employment hereunder for "Good
Reason" (as hereinafter defined).
(i) For purposes of this Agreement, "Good Reason" shall mean:
(A) a reduction in Executive's base salary then in effect; (B) a material
reduction in Executive's positions, duties and responsibilities from those
described in Section 1(a) of this Agreement; or (C) the failure of the Company
to obtain the assumption of this Agreement by any successor to the extent
required pursuant to Section 12(a) of this Agreement.
(ii) Notwithstanding the foregoing, a termination shall not be
treated as a termination for Good Reason (A) if Executive shall have
specifically consented in writing to the occurrence of the event giving rise to
the claim of termination for Good Reason or (B) unless Executive, within thirty
(30) days after receiving written notice from the Company specifying in
reasonable detail the occurrence of one of such events, shall have delivered a
written notice to the Company stating that he intends to terminate his
employment for Good Reason and specifying the factual basis for such termination
and such event, if capable of being cured, shall not have been cured within
thirty (30) days of the receipt by the Company of such notice.
(iii) If Executive shall terminate his employment for Good Reason
pursuant to this subsection (g), the Company shall pay Executive (or, in the
event of his death, his devisee, legatee or, if there is none, his estate) a
lump-sum amount equal to the lesser of (A) the Executive's monthly base salary
in effect on the date of termination, multiplied by a factor twelve (12), or (B)
the Executive's monthly base salary in effect on the date of termination,
multiplied by the number of months remaining until the termination date set
forth in Section 1(a)(i) of this Agreement. Executive will also be entitled to
any vested benefits under any employee benefit plans.
(g) As a condition to and in consideration of the payments under
subsections (e) and (f) hereof, the Executive shall execute a general release as
to both known and unknown matters occurring prior to the date of termination.
5. Executive's Representations.
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(a) The Executive represents that he has full authority to enter into
this Agreement and that he is free to enter into this Agreement and not under
any contractual restraint which would prohibit the Executive from satisfactorily
performing his duties to the Company under this Agreement.
(b) The Executive hereby agrees to indemnify and hold harmless the
Company, its officers, directors and stockholders from and against any losses,
liabilities, damages or costs (including reasonable attorney's fees) arising out
of a breach, or claimed breach, of any of the representations, warranties and
covenants of the Executive set forth in this Agreement.
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(c) The Executive acknowledges that he is free to seek advice from
independent counsel with respect to this Agreement. The Executive has either
obtained such advice or, after carefully reviewing this Agreement, has decided
to forego such advice. The Executive is not relying on any representation or
advice from the Company or any of its officers, directors, attorneys or other
representatives regarding this Agreement, its content or effect.
6. Confidentiality; Non-Solicitation.
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(a) Disclosure. The Executive acknowledges that, in the performance
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of duties on behalf of the Company, the Executive shall have access to, receive
and be entrusted with confidential information, including but in no way limited
to development, marketing, organizational, financial, management,
administrative, production, distribution and sales information, data,
specifications and processes presently owned or at any time in the future
developed by, the Company or its agents or consultants, or used presently or at
any time in the future in the course of its business that is not otherwise part
of the public domain (collectively, the "Confidential Material"). All such
Confidential Material is considered secret and will be available to the
Executive in confidence. Except in the performance of the Executive's duties on
behalf of the Company, the Executive shall not, directly or indirectly for any
reason whatsoever, disclose or use any such Confidential Material, unless such
Confidential Material ceases (through no fault of Executive's) to be
confidential because it has become part of the public domain. All records,
files, drawings, documents, equipment and other tangible items, wherever
located, relating in any way to the Confidential Material or otherwise to the
Company's business, which the Executive prepares, uses, or encounters, shall be
and remain the Company's sole and exclusive property and shall be included in
the Confidential Material. Upon termination of this Agreement by any means, or
whenever requested by the Company, the Executive shall promptly deliver to the
Company any and all of the Confidential Material not previously delivered to the
Company that may be or at any previous time has been in the Executive's
possession or under the Executive's control.
(b) Unfair Competition. The Executive hereby acknowledges that the
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sale or unauthorized use or disclosure of any of the Company's Confidential
Material by Executive by any means whatsoever at any time before, during or
after the Executive's employment with the Company shall constitute "Unfair
Competition." The Executive agrees that the Executive shall not engage in
Unfair Competition either during the time the Executive is employed by the
Company or at any time thereafter.
(c) Other. In the event of the termination of the Executive's
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employment for any reason, the Executive (and any corporation or entity of which
the Executive is a director, officer, employee or greater than ten percent (10%)
shareholder) shall not, directly or indirectly, for a period of two (2) years:
(i) solicit for employment and/or employ any employee,
consultant, agent or representative (an "employee") of the Company or any of its
affiliates or subsidiaries (or any such employee who has been "employed" by the
Company during the six (6) month period prior to the termination of this
Agreement) or induce or attempt to induce any customer, supplier, licensee or
other business relation of the Company or any of its affiliates or subsidiaries
to cease doing business with the Company or such affiliate or subsidiary or
interfere in any way with the
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relationship between any such customer, supplier, licensee or business relation
and the Company or any affiliate or subsidiary; or
(ii) make any public statement concerning the Company, any of its
affiliates or subsidiaries, or the Executive's employment unless previously
approved by the Company, except as may be required by law.
(d) In the event of the breach or a threatened breach by the
Executive of any of the provisions of this Section 6, the Company, in addition
and supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions thereof (without posting a bond or other security).
(e) Upon termination of this Agreement, the Executive shall be deemed
to have resigned from all offices and directorships then held with the Company
or any affiliate entity.
7. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement or any breach hereof or the Executive's employment by the Company
or termination thereof, shall be settled by arbitration (other than injunctive
relief) by one arbitrator in accordance with the rules of the American
Arbitration Association, and judgment upon such award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. The arbitration shall
be held in Houston, Texas or such other place as may be agreed upon at the time
by the parties to the arbitration.
8. Mitigation of Damages. In the event of any termination of the
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Executive's employment by the Company, the Executive shall not be required to
seek other employment to mitigate damages.
9. Equitable Relief. The Executive acknowledges that the Company is
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relying for its protection upon the existence and validity of the provisions of
this Agreement, that the services to be rendered by the Executive are of a
special, unique and extraordinary character, and that irreparable injury will
result to the Company from any violation or continuing violation of the
provisions of this Agreement for which damages may not be an adequate remedy.
Accordingly, the Executive hereby agrees that in addition to the remedies
available to the Company by law or under this Agreement, the Company shall be
entitled to obtain such equitable relief (without bond) as may be permitted by
law in a court of competent jurisdiction including, without limitation,
injunctive relief from any violation or continuing violation by the Executive of
any term or provision of this Agreement. In the event of an action pursuant to
this Agreement, the prevailing party shall be entitled to its costs and
expenses, including reasonable attorneys' fees.
10. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the internal substantive laws (and not the laws
of conflicts) of the State of Delaware.
11. Entire Agreement. This Agreement constitutes the whole agreement of
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the parties hereto in reference to any employment of the Executive by the
Company and in reference to any of the matters or things herein provided for or
hereinabove discussed or mentioned in reference to
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such employment; all prior agreements, promises, representations and
understandings relative thereto being herein merged.
12. Assignability.
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(a) In the event the Company shall merge or consolidate with any
other corporation, partnership or business entity, or all or substantially all
of the Company's business or assets shall be transferred in any manner to any
other corporation, partnership or business entity, then such successor to the
Company shall thereupon succeed to, and be subject to, all rights, interests,
duties and obligations of, and shall thereafter be deemed for all purposes
hereof to be, the "Company" under this Agreement. This Agreement shall inure to
the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die, any amounts payable to him
hereunder shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee, or other designee or, if there be no such
designee, to his estate.
(b) This Agreement is personal in nature and the Executive shall not,
without the written consent of the Company, assign or transfer this Agreement or
any rights or obligations hereunder.
(c) Except as set forth in subsection (a) above, nothing expressed or
implied in this Agreement is intended or shall be construed to confer upon or
give to any person, other than the parties to this Agreement, any right, remedy
or claim under or by reason of this Agreement or of any term, covenant or
condition of this Agreement.
13. Amendments; Waivers. This Agreement may be amended, modified,
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superseded, canceled, renewed or extended and the terms or covenants of this
Agreement may be waived only by a written instrument executed by the parties to
this Agreement or, in the case of a waiver, by the party waiving compliance.
Any such written instrument must be approved by the Board to be effective as
against the Company. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the breach
of any term or provision contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
14. Notice. All notices, requests or consents required or permitted
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under this Agreement shall be made in writing and shall be given to the other
parties by personal delivery, overnight air courier (with receipt signature) or
facsimile transmission (with "answerback" confirmation of transmission), sent to
such parties' addresses or telecopy numbers as are set forth below such parties'
signatures to this Agreement, or such other addresses or telecopy numbers of
which the parties have given notice pursuant to this Section 14. Each such
notice, request or consent shall be deemed effective upon the date of actual
receipt, receipt signature or confirmation of transmission, as applicable.
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15. Severability. Any provision of this Agreement that is prohibited
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Survival. The representations and agreements of the parties set
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forth in Sections 5, 6, 7, 8 and 9 of this Agreement shall survive the
expiration or termination of this Agreement (irrespective of the reason for such
expiration or termination).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Employment Agreement as of the date first above written.
BACTOLAC PHARMACEUTICAL INC.,
a Delaware corporation
By:__________________________________
Name:_____________________________
Title:____________________________
Address for Notices:
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: President
with a copy to:
0000 Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxx
Xxxxxx Xxxxx, LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
_____________________________________
Xxxxx X. Xxxxxx
Address for Notices
0000 00/xx/ Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxx Xxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
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