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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
AGREEMENT was made as of the 1st day of April, 1998 by and between
Nutraceutix, Inc./Bio Techniques Laboratories, Inc., a Delaware corporation
with its principal offices at 0000 000xx Xxxxxx, X.X., Xxxxxxx, Xxxxxxxxxx 00000
(the "Company"), and Xxxxxxx X. St. Xxxx, residing at
(the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is currently employed by the Company pursuant to an
employment agreement commencing December 1, 1996, which agreement provides that
either party may terminate same on 90 days prior notice, and,
WHEREAS, the Company desires to insure the continuing benefit of the
services of the Executive, and,
WHEREAS, the Executive is willing to continue to render such services to
the Company on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
1. Upon the execution of this Agreement, all prior employment agreements,
whether written or oral, between the Executive and the Company, or any of its
parents, subsidiaries, affiliates, or predecessor constituent corporations, are
terminated and are of no further force and effect.
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2. Subject to the terms and conditions hereinafter set forth, the Company
hereby employs the Executive, and the Executive hereby agrees to and enters into
the employ of the Company, or of any parent, subsidiary, or affiliate of the
Company as the Company shall from time to time select, for an employment term
commencing as of the 1st day of April, 1998, and continuing for a period of
three years from such date (the "Term of Employment"). At the end of the initial
Term of Employment, this Agreement shall automatically be renewed for an
additional three year period, unless either party provides at least 180 days
written notice of its decision not to renew the Term of Employment.
3. During the Term of Employment, the Executive shall render and perform
such services as President or such other executive officer of the Company as may
be assigned to him from time to time by the Board of Directors. If the Executive
is elected as a Director of the Company by the Shareholders, he shall receive no
additional compensation for serving as a Director so long as he is employed by
the Company on a full-time basis in an executive position.
4. During the Term of Employment, the Executive shall devote his business
time, attention, skill and efforts to the performance of his duties for the
Company, except for reasonable vacation and except for illness or incapacity,
but nothing in this Agreement shall preclude the Executive from devoting
reasonable periods required for:
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(a) Serving as a Director, trustee, or member of a committee of any
organization involving no conflicting interests with those of the
Company;
(b) Delivering lectures, fulfilling speaking engagements, teaching at
educational institutions or business organizations;
(c) Engaging in charitable and community activities; and
(d) Managing his personal investments;
provided that such activities do not, individually or together, interfere with
the regular performance of his duties and responsibilities under this Agreement.
The Company shall pay all reasonable costs and expenses incurred by the
Executive in any undertaking under Subsections (a) - (c), inclusive, above when
participation in said activities provides direct or indirect benefit to the
Company.
5. For all services to be rendered by the Executive in any capacity
during the Term of Employment, including, without limitation, services as an
executive, officer, director or member of a committee of the Company or its
subsidiaries, divisions, and affiliates, the Executive shall be paid as
compensation such salary, payable in accordance with the customary payroll
practices of the Company (but in no event less frequently than semi-monthly) as
the Board of Directors of the Company may determine and any bonus as the Board
of Directors of the Company may determine.
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During the Term of Employment as set forth in this Agreement, it is agreed
that the compensation paid to the Executive shall be a base salary no less than
One Hundred Fifty Thousand ($150,000) Dollars per annum plus participation in
the Company's incentive plan which may be established and modified from time to
time at the discretion of the Board of Directors.
6. The Executive shall be entitled to reimbursement by the Company for
reasonable expenses actually incurred by him on its behalf in the course of his
employment by the Company, upon the presentation by the Executive, from time to
time, of an itemized account of such expenditures, together with said vouchers
and other receipts as the Company may require.
7. The Executive shall be entitled to vacations in accordance with the
Company's prevailing policy for its operating executives.
8. The rights of the Executive or any other person to the payment of
compensation or other benefits under this Agreement shall not be assigned,
transferred, anticipated, conveyed, pledged, or encumbered except by will or the
laws of descent and distribution; nor shall any such right or interest be in any
manner subject to levy, attachment, execution, garnishment or any other seizure
under legal, equitable, or other process for payment of debts, judgements,
alimony, or separate maintenance, or reached or transferred by operation of law
in the event of bankruptcy, insolvency, or otherwise.
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9. In the event of the Executive's involuntary termination of employment
due to circumstances beyond the control of the Company, or in the event of the
Executive's involuntary termination for any reason, other than for just cause
due to theft or fraud, the Executive shall be entitled to severance
compensation or benefits as provided in this paragraph 9. Nothing contained
herein, however, shall be construed so as to include absence or failure to
perform due to illness as a basis for termination.
(a) Subject to the provisions of paragraph 9(b) below, the Executive shall
be entitled (upon such involuntary termination of employment) to
immediate severance compensation equal to an amount equal to the
Executive's base salary for the remaining period of the Term of
Employment.
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(b) The Executive shall be entitled (upon such involuntary termination of
employment), in addition to the severance compensation described in
paragraph 9(a) above, to the benefits described in paragraph 9(c)
below, as follows:
(c) The Executive will be eligible to continue to participate in the
following employee benefit plans (to the extent permissible therein)
for a period of one year from the date of such involuntary termination
of employment. Cost of such participation for the Executive and
eligible dependents shall be born by the Company, provided the
Executive continues to make all contributions required as of the date
of termination to maintain his eligibility:
Medical Insurance Plan..............COBRA (Company paid)*
Dental Plan.........................COBRA (Company paid)*
* The Executive will have the option to continue this coverage for an
additional six months (beyond the twelve months paid by the Company)
by paying the full monthly premium.
10. Nothing contained herein shall in any way affect or interfere with
the Executive's rights or privileges under any qualified deferred compensation,
retirement, pension, profit sharing, bonus, insurance, hospitalization, or
other employee benefit plan, program or arrangement, now in effect or hereafter
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adopted, in which the Executive is entitled to share or participate as an
employee of the Company.
11. During the Term of Employment, if Executive shall, for a period of
more than three (3) consecutive months or for periods aggregating more than
twelve (12) weeks in any fifty-two consecutive weeks, be unable to perform the
services provided for herein, as a result of illness or incapacity or a
physical, mental, or other disability of any nature, the Company may, upon not
less than thirty (30) days notice, terminate the Executive's employment
hereunder. The Executive shall be considered unable to perform the services
provided for herein if he is unable to attend to the normal duties required of
him. In such event, the Company shall pay to the Executive, or to his legal
representatives, base compensation as specified in paragraph 5, hereof, for a
period of twelve (12) months from the date of termination. Upon completion of
the termination payments provided for in this paragraph, all of the Company's
obligations to pay compensation under this Agreement shall cease.
12. The Company makes no representations, guaranty, warranty, or other
assurance of any kind to the Executive or any other person regarding the
federal, state or local tax consequences of this Agreement or any payments
hereunder, and the Company does not agree to indemnify the Executive or any
other person for any federal, state or local taxes of any kind with respect to
payments hereunder.
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13. This Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and the Executive and his heirs,
executors, administrators and legal representatives.
13. The Company will not consolidate or merge into or with another
corporation or entity, or transfer all or substantially all of its business
and/or assets to another entity, directly or indirectly, unless such other
entity (hereinafter referred to as the "Successor") shall assume this Agreement
and the obligations of the Company hereunder; and upon such assumption, the
Executive and the Successor shall become obligated to perform the terms and
conditions hereof. However, if during the first 180 days following any such
consolidation or merger, the Executive determines that he does not desire to
remain employed by the Successor or the Successor determines that the services
of the Executive are no longer required, such consolidation or merger shall be
deemed an involuntary termination of the Executive's employment, and the
Executive shall be paid an amount equal to his annual base salary at the time
of the consolidation or merger. This payment will be made to the Executive in a
single lump sum at the time of the termination.
14. The Executive will not, at any time during the Term of Employment,
or for a period of one year after the voluntary termination of the Executive's
employment, directly or indirectly disclose or furnish to any other person,
firm, or corporation any information relating to the Company or its parent,
subsidiaries,
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or affiliates with respect to technology of the Company's products, methods of
obtaining business, advertising products, customers or suppliers, or any
confidential or proprietary information acquired by the Executive during the
course of his employment by the Company or its parent, subsidiaries, or
affiliates.
15. This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter set forth herein and supersedes any prior
oral and/or written agreements, understandings, negotiations, or discussions of
the parties. There are no warranties, representations or agreements between the
parties in connection with the subject matter hereof, except as set forth or
referred to herein. No supplement, modification, waiver, or termination of this
Agreement or any provision hereof shall be binding unless executed in writing by
the parties to be bound thereby. Waiver of any of the provisions of this
Agreement shall not constitute a waiver of any other provision (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
specifically provided.
16. The failure of either party at any time to require performance by the
other of any provision hereof shall not affect in any way the full right to
require such performance at any time thereafter, nor shall the waiver by either
party of the breach of any provision hereof be taken or be held to be a waiver
of the provision itself.
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17. Any notice or other communication required or permitted to be given
under or in connection with this Agreement shall be in writing, delivered in
person or by public telegram, or by mailing same, certified or registered mail,
postage prepaid, in an envelope addressed to the party to whom notice is to be
given, at the address given at the beginning of this Agreement, and shall be
effective upon receipt thereof. Each party shall be entitled to specify a
different address by giving notice as aforesaid to the other party.
18. The invalidity or unenforceability or any paragraph, term, or
provision hereof shall in no way affect the validity or enforceability or the
remaining paragraphs, terms, or provisions hereof. In addition, in any such
event, the parties agree that it is their intention and agreement that any such
paragraph, term or provision which is held or determined to be unenforceable as
written shall nonetheless be in force and binding to the fullest extent
permitted by law as though such paragraph, term or provision had been written
in such a manner and to such an extent as to be enforceable under the
circumstance. Without limiting the foregoing, with respect to any restrictive
covenant contained herein, if it is determined that any such provision is
excessive as to duration or scope, it is intended that it nevertheless shall be
enforced for such shorter duration, or with such narrower scope, as will render
it enforceable.
19. All of the terms and provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties
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hereto and their respective heirs, executors, administrators, transferees,
successors, and assigns.
20. This Agreement shall be governed and construed under the laws of the
State of Washington.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
entered into as of the date and year hereinabove first set forth.
NUTRACEUTIX, INC./Bio Techniques
Laboratories, Inc.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx,
Vice President - Operations
By: /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, Director
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, Director
By: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx, Director
Executive:
/s/ XXXXXXX X. ST. XXXX
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Xxxxxxx X. St. Xxxx
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