EXHIBIT 10.8
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made and entered into this - day of June, 1997
effective for the term provided herein, by and between Reliv' International,
Inc., an Illinois corporation (the "Company") and Xxxx X. Xxxxxxxx (hereinafter
referred to as the "Executive").
WHEREAS, the Executive is presently, and for some time has been,
employed as Executive Vice President of the Company and has been instrumental in
the organization and success of the Company;
WHEREAS, the Company desires to be assured of the continued association
and services of Executive and Executive desires to continue in the employment of
the Company on the terms provided herein.
NOW, THEREFORE, in consideration of the premises and of the terms,
covenants and conditions hereinafter contained, the parties hereto agree as
follows:
1 . Employment, Duties and Authority.
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1.1 The Company hereby employs Executive and Executive hereby
accepts employment by the Company on the terms, covenants and
conditions herein contained.
1.2 The Executive is hereby employed by the Company as
Executive Vice President. The Executive shall have such duties,
responsibilities and authority as the bylaws of the Company shall from
time to time provide and as the Board of Directors of the Company shall
from time to time prescribe in writing.
1.3 During the term of Executive's employment hereunder, and
subject to the other provisions hereof, Executive shall devote his full
energies, interest, abilities and productive time to the performance of
his duties and responsibilities hereunder and will perform such duties
and responsibilities faithfully and with reasonable care for the
welfare of the Company. During the term of his employment hereunder,
Executive shall not perform any services for compensation for any
person, firm, partnership, company or corporation other than the
Company without the express written consent of the Board of Directors
of the Company.
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2. Compensation and Benefits.
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2.1 Basic Salary.
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2.1.1 The Company shall pay to Executive during the
initial term of employment hereunder and each renewal term a
basic salary at an annual rate to be determined by the Board
of Directors of the Company but not less than the amount of
$275,000. Such basic salary shall be paid by the Company to
Executive each month, less amounts which the Company may be
required to withhold from such payments by applicable federal
state or local laws or regulations.
2.1.2 If the Executive shall be absent from work on
account of personal injuries or sickness, he shall continue to
receive the payments provided for in paragraph 2. 1.1 hereof;
provided, however, that any such payment may, at the Company's
option, be reduced by the amount which the Executive may
receive, for the period covered by any such payments, in
disability payments (i) pursuant to any disability insurance
which the Company, in its sole discretion, may maintain, or
(ii) under any governmental program for disability
compensation.
2.1.3 The Company agrees that the rate of the basic
salary of the Executive hereunder shall be reviewed annually
by the Board of Directors or such committee of the Board of
Directors designated by it to review such matters and that the
rate of the basic salary shall be determined and adjusted for
each year during the term of Executive's employment hereunder
by the Board of Directors or such committee commensurate with
(i) the performance of Executive, (ii) the net income of the
Company during the preceding fiscal year and as projected for
the fiscal year for which the basic salary determination is
made, (iii) comparable rates of compensation for executives
and (iv) such other factors as the Board of Directors or such
committee may deem relevant to the determination.
2.2 Additional Compensation.
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2.2.1 Executive shall be a participant in the
Company's Annual and Long Term Incentive Compensation Plans
adopted by the Board of Directors of the Company as of April
13, 1994, as amended from time to time, and any other
incentive compensation or executive bonus plan which the
Company may adopt or which shad be in effect at any time
during the term hereof.
2.2.2 The Company has adopted a Stock Option Plan and
Executive shag participate in stock options issued to
executives of the Company pursuant to such Plan, or such other
stock options or bonus plans as the
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Company may adopt from time to time, in such amounts and on
such terms as the Board of Directors of the Company shall from
time to time determine.
2.3 Benefits: Expense Reimbursement.
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2.3.1 The Executive shall be entitled to, and shall
receive, all other benefits of employment available to other
executives of the Company generally, including, without
limitation, participation in any hospital surgical medical or
other group health plans or accident benefits, life insurance
benefits, pension or profit-sharing plans, bonus plans or
vacation plans as shall be instituted by the Company, in its
sole discretion
2.3.2 During the term hereof the Company shall
reimburse Executive for all reasonable and necessary expenses
incurred by Executive in the performance of his duties
hereunder, including without limitation, travel meals,
lodging, office supplies or equipment subject to such
reasonable limitations, restrictions and reporting standards
as the Board of Directors of the Company may from time to time
establish. Executive shall provide to the Company promptly
after incurring any such expenses a detailed report thereof
and such information relating thereto as the Company shall
from time to time require. Such information shall be
sufficient to support the deductibility of all such expenses
by the Company for federal income tax purposes.
2.3.3 The Company shall provide to Executive the use
of an automobile.
2.4 Reduced Services and Compensation.
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2.4.1 At the election of Executive at any time during
the term hereof after Executive shall have attained the age of
60, Executive shall be entitled to elect to continue
employment with the Company hereunder at a reduced level of
service in accordance with the provisions of this paragraph.
2.4.2 Executive shall make the election by written
notice to the Company. The terms of this paragraph shall
become applicable and effective on the first day of the month
immediately following the month in which such notice is given
and shall remain effective until termination of this Agreement
or the election of Executive pursuant to paragraph 5 hereof
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2.4.3 During the period that the election of
Executive pursuant to this paragraph shall be effective:
(A) Executive shall continue as an employee
of the Company for the remaining term or renewal
terms of this Agreement;
(B) Executive's obligation to perform
services for the Company shall be at the rate of
approximately 85 hours per month. The time of
performance of services shall be within the
discretion of Executive and in accordance with such
arrangements as Executive and the Company shall
determine.
(C) Executive's title and duties shall be
modified as Executive and the Company shall agree,
provided that Executive shall remain Executive Vice
President of the Company and shall retain duties and
authority consistent with such position.
(D) Executive's compensation shall be
adjusted consistent with the reduction in his
service. Executive's rate of base salary shall be
adjusted to an amount equal to one-half of the annual
rate of base salary in effect at the time of
Executive's election pursuant to this paragraph,
subject to modification in accordance with the
provisions of paragraph 2.1.3 hereof
(E) The provisions of this paragraph shall
control and shall supersede any conflicting
provisions of this Agreement. Except as modified by
the provisions of this paragraph, all provisions of
this Agreement shall remain in full force and effect.
3. Term.
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The employment of Executive hereunder shall be for a term commencing on
January 1, 1997 and expiring on December 31, 2002. Upon the expiration of the
initial term or any renewal term of Executive's employment hereunder, the term
of such employment automatically shall be renewed for an additional term of one
year commenci on January 1 and expiring on the, succeeding December 31 unless
Executive or the Company shall give notice of the termination of Executive's
employment and this Agreement by written notice to the other more than 120 days
prior to the date of expiration of the initial or any renewal term. In the event
that such notice of termination shall be given timely, subject to any accrued
rights of Executive to incentive or other
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compensation, including without limitation pursuant to the provisions of
paragraph 5 hereof, this Agreement shall terminate on the date of expiration of
such initial or renewal term.
4. Termination.
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4.1 The Company shall be entitled to terminate this Agreement
prior to the expiration of its term or any renewal term on the
occurrence of either:
4.1.1 an event of default with respect to Executive
as provided herein, or
4.1.2 the permanent mental or physical disability of
Executive as provided herein occurring during the term or any
renewal term of Executive's employment hereunder.
4.2 For purposes of this Agreement, an event of default with
respect to Executive shall include:
4.2.1 Any failure by Executive to perform his duties,
responsibilities or obligations hereunder in a faithful and
diligent manner or with reasonable care and (if such failure
can be cured) the failure by Executive to cure such failure
within 10 days after written notice thereof shall have been
given to Executive by the Company; or
4.2.2 Commission by Executive of any material act of
dishonesty as an employee of the Company or of disloyalty to
the Company, or any wrongful or unauthorized appropriation,
taking or misuse of funds, property or business opportunities
of the Company.
4.3 Permanent mental or physical disability of Executive shall
be deemed to have occurred hereunder when Executive shall have failed
or been unable to perform his duties hereunder on a full-time basis for
an aggregate of 180 days in any one period of 210 consecutive days and
with a certification from a licensed physician in the State of Missouri
that Executive is permanently disabled from performing his duties
hereunder.
4.4 Executive shall be entitled to terminate his employment
with the Company under this Agreement prior to the expiration of its
term upon the occurrence of an event of default with respect to the
Company.
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4.5 For purposes of this Agreement an event of default with
respect to the Company shall include:
4.5.1 Any failure by the Company to perform its
obligations to Executive under this Agreement and (if such
failure can be cured) the failure by the Company to cure such
failure within 10 days after written notice thereof shall have
been given to the Company by Executive;
4.5.2 The Company shall:
(a) admit in writing its inabilitY to
pay its debts generally as they become due,
(b) file a petition for relief under any
chapter of Title 11 of the United States Code or a
petition to take advantage of any insolvency under
the laws of the United States of America or any state
thereof,
(c) make an assignment for the benefit of
its creditors,
(d) consent to the appointment of a receiver
of itself or of the whole or any substantial part of
its property,
(e) suffer the entry of an order for relief
under any chapter of Title 11 of the United Sates
Code, or file a petition or answer seeking
reorganization under the Federal Bankruptcy Laws or
any other applicable law or statute of the United
States of America or any state thereof.
4.6 In the event of termination of this Agreement and
Executive's employment hereunder by the Company pursuant to paragraph
4.1 hereof all rights and obligations of the Company and Executive
hereunder shall terminate on the date of such termination, subject to
the following:
4.6.1 Executive shall be entitled to receive (subject
to any rights of set off or counterclaim by the Company) all
salary, additional compensation and benefits, including
without limitation pursuant to the Supplemental Executive
Retirement Plan of the Company, which shall have accrued prior
to the date of such termination and the obligation of the
Company for the payment of salary, additional compensation or
benefits shall terminate as at the date of such termination;
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4.6.2 All rights of the Company or Executive which
shall have accrued hereunder prior to the date of such
termination, and all provisions of this Agreement provided
herein to survive termination of employment of Executive
hereunder, shall survive such termination and the Company and
Executive shall continue to be bound by such provisions in
accordance with the terms thereof,
4.7 In the event of termination of the Agreement by Executive
in accordance with paragraph 4.4 hereof, all rights and obligations of
the Company and Executive hereunder shall terminate on the date of such
termination, subject to the following:
4.7.1 Executive shall be entitled to receive all
salary, additional compensation and benefits which shall have
accrued prior to the date of such termination and the
Company's obligation for the payment of salary, additional
compensation and benefits shall terminate as of the date of
such termination;
4.7.2 All rights of the Company or Executive which
shall have accrued hereunder prior to the date of such
termination and the obligations of Executive pursuant to
paragraphs 6, 7 and 8 provided herein to survive termination
of employment of Executive hereunder shall survive such
termination and the Executive shall continue to be bound by
such provisions in accordance with their terms.
4.8 This Agreement and all rights and obligations of the
parties hereunder shall terminate immediately upon the death of
Executive except that the Company shall pay to the heirs, legatees or
personal representative of Executive (i) all compensation or benefits
hereunder accrued but not paid to the date of Executive's death, (ii)
all amounts which may become due pursuant to any compensation program
providing for payments to the beneficiaries of Executive upon his death
and (iii) an amount equal to the total compensation which would have
been payable to Executive hereunder, but for his death, for a period of
six months from the date of his death.
5. Consultation Period.
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5.1 The Executive may at any time during the term of this
Agreement and after the Executive has attained the age of 60 deliver to
the Company a notice in writing to the effect that the active
employment of Executive with the Company
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is to terminate as of the first day of the calendar month next
following the date on which the notice is delivered, or as of the first
day of any specified calendar month thereafter. The active employment
of Executive hereunder shall terminate on the date so specified and
then from and after such termination date and for a period of 120
months (the "Consultation Period"), he shall serve as a consultant to
the Company with respect to such business matters and at such time or
times as the Company may reasonably request. However, Executive shall
not be required to undertake any assignment inconsistent with the
dignity, importance, and scope of his prior position or with his
physical and mental health at the time. Moreover, while it is the
intent of this Agreement that the mutual convenience of the parties be
served, it is understood that Executive shall act during the
Consultation Period in the capacity of an independent contractor and
shall not be subject to the direction, control or supervision of the
Company with respect to the time spent, research undertaken, or
procedures followed in the performance of his consulting services
hereunder. In particular, Executive will not be required without his
consent to undertake any assignment which would require him to leave
his city of residence at the time for purposes of such consultation.
During the Consultation Period, the Company shall pay to Executive the
Deferred Compensation Benefit (as defined in paragraph 5.2 below).
Executive shall have no right to receive Additional Compensation as
provided in paragraph 2.2 or Benefits as provided in paragraph 2.3
during the Consultation Period. Upon the termination of his active
employment hereunder, and again upon expiration of the Consultation
Period, Executive or his estate shall deliver to the Company all
original files then in his or its possession pertaining to the business
of the Company.
5.2 Executive's Deferred Compensation Benefit shall be paid
not less frequently than monthly at an initial annual rate equal to 20%
percent of the average annual compensation paid to Executive in the
form of salary and bonuses (but excluding all other payments made to or
for his benefit and any reimbursement of expenses) with respect to the
five complete fiscal years of the Company immediately preceding the
earlier of (a) his termination of employment or (b) his election to
continue employment at a reduced level of service pursuant to paragraph
2.4 hereof Effective July I in each year during the Consultation period
and for the twelve months ending the following June 30, payments of the
Deferred Compensation Benefit shall be automatically increased or
decreased, as the case may be, by the percentage change in the Consumer
Price Index U.S. City Average from that published for the month of June
preceding the date of Executive's termination of employment as compared
with that published for the month of June immediately preceding such
July 1. No Deferred Compensation Benefit payable hereunder shall be
deemed salary or other compensation to Executive for the purpose of
computing benefits to which Executive may be entitled under any
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pension or profit-sharing plan or other arrangement of the Company for
the benefit of its employees, nor shall anything contained herein
affect any rights or obligations which Executive may now have under any
such plan or arrangement.
5.3 All payments of the Deferred Compensation Benefit shall be
paid in cash from the general funds of the Company and no special or
separate fund shall be established and no other segregation of assets
shall be made to assure the payment of such Deferred Compensation
Benefit. Executive shall have no right, title, or interest whatever in
or to any investments which the Company may make to aid it in meeting
its obligation hereunder. Nothing contained in this Agreement, and no
action taken pursuant to its provisions, shall create or be construed
to create a trust of any kind, or a fiduciary relationship, between the
Company and Executive or any other person. To the extent that any
person acquires a right to receive payments from the Company, such
right shall be no greater than the right of an unsecured creditor.
5.4 The Company may terminate the Consultation Period and its
obligation to make payments of the Deferred Compensation Benefit upon
the occurrence of an event of default with respect to Executive as
specified in Section 4.2.2 or upon breach by Executive of its
continuing obligations under paragraphs 6, 7, 8 or 9 of this Agreement.
6. Confidential Information.
6.1 "Confidential Information" means information disclosed by
the Company to Executive, or developed or obtained by Executive during
his employment by the Company, either before the date or during the
term of this Agreement, or during the Consultation Period, provided
that such information is not generally known in the business and
industry in which the Company is or may subsequently become engaged,
relating to or concerning the business, projects, products, processes,
formulas, know-how, techniques, designs or methods of the Company,
whether relating to research, development, manufacture, purchasing,
accounting, engineering, marketing, merchandising, selling or
otherwise. Without limitation, Confidential Information shall include
all know-how, technical information, inventions, ideas, concepts,
processes and designs relating to products of the Company, whether now
existing or hereafter developed, and all prices, customer or
distributor names, customer or distributor lists, marketing and other
relationships, whether contractual or not, between the Company, its
suppliers, customers, distributors, employees, agents, consultants and
independent contractors but shall exclude the names of customers or
distributors known to Executive prior to the effective date hereof.
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6.2 Executive agrees that, during the term hereof or while
Executive shall receive compensation hereunder and after termination of
his employment with the Company for so long as the Confidential
Information shall not be generally known or generally disclosed (except
by Executive or by means of wrongful use or disclosure), Executive
shall not use any Confidential Information, except on behalf of the
Company, or disclose any Confidential Information to any person, firm,
partnership, company, corporation or other entity, except as authorized
by the President or the Board of Directors of the Company.
7. Inventions.
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7.1 "Inventions" shall mean discoveries, concepts, ideas,
designs, methods, formulas, know-how, techniques or any improvements
thereon, whether patentable or not, made, conceived or developed, in
whole or in part, by Executive.
7.2 Executive covenants and agrees to communicate and fully
disclose to the Board of Directors of the Company any and all
Inventions made or conceived by him during the term hereof or while
receiving any compensation or payment from the Company and further
agrees that any and all such Inventions which he may conceive or make,
during the term hereof or while receiving any compensation or payments
from the Company, shall be at all times and for all purposes regarded
as acquired and held by him in a fiduciary capacity and solely for the
benefit of the Company and shall be the sole and exclusive property of
the Company. The provisions of this subparagraph shall not apply to an
invention for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on
the Executive's own time, unless (a) the invention relates (i) to the
business of the Company, or (ii) to the Company's actual or
demonstrably anticipated research or development, or (b) the invention
relates from any work performed by Executive for the Company.
7.3 Executive also covenants and agrees that he will assist
the Company in every proper way upon request to obtain for its benefit
patents for any and all inventions referred to in paragraph 7.2 hereof
in any and all countries. All such patents and patent applications are
to be, and remain, the exclusive property of the Company for the RM
term thereof and to that end, the Executive covenants and agrees that
he will, whenever so requested by the Company or its duly authorized
agent, make, execute and deliver to the Company, its successors,
assigns or nominees, without charge to the Company, any all
applications, applications for divisions, renewals, reissues,
specifications, oaths, assignments and all other instruments which the
Company shall deem necessary or appropriate in order to apply for and
obtain patents of the United States or foreign countries for any and
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all Inventions referred to in paragraph 7.2 hereof or in order to
assign and convey to the Company, its successors, assigns or nominees,
the sole and exclusive right, title and interest in and to such
Inventions, applications or patents. Executive likewise covenants and
agrees that his obligations to execute any such instruments or papers
shall continue after the expiration or termination of this Agreement
with respect to any and all such Inventions, and such obligations shall
be binding upon his heirs, executors, assigns, administrators or other
legal representatives.
8. Writings and Working Papers.
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Executive covenants and agrees that any and all books, textbooks,
letters, pamphlets, drafts, memoranda or other writings of any kind written by
him for or on behalf of the Company or in the performance of Executive's duties
hereunder, Confidential Information referred to in paragraph 6.1 hereof and all
notes, records and drawings made or kept by him of work performed in connection
with his employment by the Company shall be and are the sole and exclusive
property of the Company and the Company shall be entitled to any and all
copyrights thereon or other rights relating thereto. Executive agrees to execute
any and all documents or papers of any nature which the Company or its
successors, assigns or nominees deem necessary or appropriate to acquire,
enhance, protect, perfect, assign, sell or transfer its rights under this
paragraph. Executive also agrees that upon request he will place all such notes,
records and drawings in the Company's possession and will not take with him
without the written consent of a duly authorized officer of the Company any
notes, records, drawings, blueprints or other reproductions relating or
pertaining to or connected with his employment of the business, books,
textbooks, pamphlets, documents work or investigations of the Company. The
obligations of this paragraph survive the term of employment hereunder or the
termination or expiration of the term or any renewal term hereof or the term or
termination of the Consultation Period.
9. Covenant Not to Compete.
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9.1 For purposes of this paragraph:
9.1.1 "Conflicting organization" means any person,
firm, company, partnership, business, corporation or other
entity engaged in, or intending to engage in, research,
development, production, marketing or selling a Conflicting
Product.
9.1.2 "Conflicting Product" means any product,
process, service or design which competes with, or is
reasonably interchangeable as a substitute for, any product,
process, service or design developed, planned,
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under development, produced marketed or sold by the Company or
any Affiliate during the term of the covenant in this
paragraph 9. Without limitation, Conflicting Product includes
any food product or nutritional supplement or product, or skin
care product, which is marketed or sold, or intended to be
marketed or sold, by direct or multilevel sales.
9.1.3 "Territory" means the geographic area within
which the Company or any Affiliate or any distributor or
representative of the Company or any Affiliate is actively
engaged in the sale of, or efforts to sell the products of the
Company or any Affiliate at any time during the term of this
Agreement.
9.1.4 "Affiliate" shall mean any corporation of which
the Company, or any Affiliate, shall own majority of the
capital stock.
9.2 Executive acknowledges and agrees as follows:
9.2.1 That the Company and its Affiliates have
developed, and are developing and establishing, a valuable and
extensive trade in its services and products, including
without limitation, nutritional food and dietary products, and
skin care products and that they have developed, and are
developing, operations and distributors to sell such products
and services throughout the United States and in foreign
countries.
9.2.2 That the Company and its Affiliates have
developed, and are developing, at great expense, technical
information concerning their products and methods of marketing
and sale which are kept and protected as Confidential
Information and trade secrets and are of great value to the
Company and its affiliates.
9.2.3 That, during the course of his employment with
the Company or an Affiliate and during the term of this
Agreement, Executive has participated, and will participate,
in such matters and has acquired and will acquire, possession
of Confidential Information, and that Executive has had
significant responsibility for the development activities of
the Company and the development of unique products, methods
and techniques of the Company and its Affiliates.
9.2.4 That, for Executive to utilize Confidential
information of the Company and its Affiliates, or unique
skills, techniques or information developed by him while an
employee of the Company or its Affiliates or
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during the term of this Agreement for a Conflicting
Organization within the area or time provided herein would
result in material and irreparable injury to the Company.
9.2.5 That the area and conduct covered by the
restrictive covenant in this paragraph includes only a
percentage of the total number of organizations and
individuals who are customers or distributors or potential
customer or distributors for products, processes or services
with respect to which Executive has knowledge or expertise,
that Executive would be able to utilize his knowledge,
experience and expertise for an employer while fully complying
with the terms of this paragraph and that the terms and
conditions of this paragraph are reasonable and necessary for
the protection of the Company's business and assets.
9.3 Executive agrees that, during the term of this Agreement,
during the term of the Consultation Period, for so long as Executive
shall be receiving compensation hereunder, and for a period of 36
months from and after the date of termination of this Agreement (other
than by Executive pursuant to paragraph 4.4 hereof), he will not,
anywhere within the Territory, directly or indirectly, whether as an
employee, agent, officer, consultant, partner, owner, shareholder or
otherwise:
9.3.1 solicit, or enter into any arrangement or
agreement with, or participate with, provide services to, or
be employed by any person, company, partnership, business or
corporation which shall solicit, or enter into any arrangement
with, any person who is, or at any time during the term of
this Agreement has been, a distributor for the Company or any
Affiliate, to become a distributor for a Conflicting
Organization or for any organization engaged in the direct or
multilevel sale of any product or service;
9.3.2 solicit for the sale of, or participate with,
provide services to, or be employed by any person, company,
partnership, business or corporation which shall solicit for
the sale of any Conflicting Product by a Conflicting
Organization to any person who has been, during the term
hereof a customer of the Company or any Affiliate; and
9.3.3 engage or participate in, be employed by, or
provide services or assistance to, any Conflicting
Organization.
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10. Specific Enforcement.
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Executive is obligated under this Agreement to render service of a
special unique, unusual extraordinary and intellectual character, thereby giving
this Agreement peculiar value so that the loss of such service or violation by
Executive of this Agreement could not reasonably or adequately be compensated in
damages in an action at law. Therefore, in addition to other remedies provided
by law, the Company shall have the right during the term or any renewal term of
this Agreement (or thereafter with respect to obligations continuing after the
expiration or termination of this Agreement) to compel specific performance
hereof by Executive or to obtain injunctive relief against violations hereof by
Executive, and if the Company prevails in any proceeding therefor, it will also
be entitled to recover all costs and expenses incurred by the Company in
connection therewith, including attorneys' fees.
11. Assignment.
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The rights and duties of a party hereunder shall not be assignable by
that party, except that the Company may assign this Agreement and all rights and
obligations hereunder to, and may require the assumption thereof by, any
corporation or any other business entity which succeeds to all or substantially
all the business of the Company through merger, consolidation or corporate
reorganization or by acquisition of all or substantially all of the assets of
the Company.
12. Binding Effect.
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This Agreement shall be binding upon the parties hereto and their
respective successors in interest, heirs and personal representatives and, to
the extent permitted herein, the assigns of the Company.
13. Severability.
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If any provision of this Agreement or any part hereof or application
hereof to any person or circumstance shall be finally determined by a court of
competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Agreement, or the remainder of such provision or the
application of such provision to persons or circumstances other than those as to
which it has been held invalid or unenforceable, shall not be affected thereby
and each provision of this Agreement shall remain in full force and effect to
the fullest extent permitted by law. The parties also agree that, if any portion
of this Agreement, or any part hereof or application hereof to any person or
circumstance shall be finally determined by a court of competent jurisdiction to
be invalid
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or unenforceable to any extent, any court may so modify the objectionable
provision so as to make it valid, reasonable and enforceable.
14. Notices.
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All notices, or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered personally or mailed,
certified mail return receipt requested, postage prepaid, to the parties as
follows:
If to the Company: Xxxxx X. Xxxxxx
Chief Operating Officer
Reliv' International, Inc.
P. 0. Xxx 000
Xxxxxxxxxxxx, XX 00000-0000
If to Executive: Xxxx X. Xxxxxxxx
00000 Xxxx Xxxxx Xx.
Xxxxxxx, XX 00000
Any notice mailed in accordance with the terms hereof shall be deemed
received on the third day following the date of mailing. Either party may change
the address to which notices to such party may be given hereunder by serving a
proper notice of such change of address to the other party.
15. Entire Agreement.
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This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
written or oral negotiations, representations, agreements, commitments,
contracts or understandings with respect thereto and no modification, alteration
or amendment to this Agreement may be made unless the same shall be in writing
and signed by both of the parties hereto.
16. Waivers.
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No failure by either party to exercise any of such party's rights
hereunder or to insist upon strict compliance with respect to any obligation
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver by either
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party to demand exact compliance with the terms hereof Waiver by either party of
any particular default by the other party shall not affect or impair such
party's rights in respect to any subsequent default of the same or a different
nature, nor shall any delay or omission of either party to exercise any rights
arising from any default by the other party affect or impair such party's rights
as to such default or any subsequent default.
17. Governing Law, Jurisdiction.
----------------------------
17.1 For purposes of construction, interpretation and
enforcement, this Agreement shall be deemed to have been entered into
under the laws of the State of Missouri and its validity, effect,
performance, interpretation, construction and enforcement shall be
governed by and subject to the laws of the State of Missouri.
17.2 Any and all suits for any and every breach of this
Agreement may be instituted and maintained in any court of competent
jurisdiction in the State of Missouri and the parties hereto consent to
the jurisdiction and venue in such court and the service of process by
certified mail to the addresses for the parties provided for notices
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, and year first above written.
RELIV INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Authorized Officer
Attest:
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Secretary
EXECUTIVE:
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
16
