EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made in Suffolk County, New York as of
the 1st day of March, 2003 ("Effective Date"), between Twin Laboratories Inc.
("Company"), a Utah corporation, having its executive offices and principal
place of business in Hauppauge, New York and Xxxx Xxxxxxxx, the undersigned
individual ("Executive") having a home address of 00 Xxxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000. As used herein, the term "Twinlab" shall refer, individually
and/or collectively, as applicable, to Twinlab Corporation, a Delaware
corporation and its existing and future direct and indirect subsidiaries,
including but not limited to the Company.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Agreement Term.
The term of this Agreement shall be the period commencing on March 1, 2003
and ending on December 31, 2004 (the "Agreement Term"); provided, however, that
the Agreement Term shall be renewed automatically for successive additional
one-year periods (each a "Renewal Term") at the end of the Agreement Term and at
the end of each such Renewal Term, unless, no later than 90 days prior to the
end of the Agreement Term or any applicable Renewal Term, either the Company or
the Executive gives written notice to the other that the Agreement Term or any
applicable Renewal Term shall not be so renewed. This Agreement supercedes in
all respects the Employment Agreement between the parties dated as of January 1,
2000.
2. Employment.
(a) Employment by the Company. Executive agrees to be employed by the
Company for the Agreement Term and any applicable Renewal Term (collectively,
the "Term") upon the terms and subject to the conditions set forth in this
Agreement.
(b) Performance of Duties. Throughout the Term, Executive shall serve as
Chief Executive Officer, President and Chairman of the Board of the Company with
powers and responsibilities as are commensurate with the duties of such titles
and as may be assigned from time to time by the Board of Directors ("Board") of
the Company. Executive agrees to faithfully and diligently perform Executive's
duties in conformity with the directions of the Board of the Company and will
serve the Company to the best of Executive's ability. Executive shall devote
Executive's entire working time to the business and affairs of the Company,
subject to vacations and sick leave, each in accordance with Company policy.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive a base salary
("Base Salary") at the annual rate of $300,000, payable in accordance with the
Company's standard payroll practices. The Base Salary shall be reviewed annually
and may be increased at the discretion of the Compensation Committee of the
Board of Directors of Twinlab based upon the achievement of performance criteria
by the Executive as may be established from time to time by the Compensation
Committee of the Board.
(b) Bonus. The Executive shall be eligible to receive a bonus of up to a
maximum of 200% of the Base Salary. The basis for Executive's receipt of such
bonus shall be based upon performance criteria established by the Compensation
Committee of the Board.
(c) Benefits and Perquisites. Executive shall be entitled to receive such
benefits and perquisites as established for employees at the highest grade at
the Company, including outplacement services upon Executive's termination or
retirement, and a reasonable supply of Company product for Executive and his
immediate family.
(d) Indemnification. The Executive shall be indemnified by the Company
against reasonable expenses, including attorney's fees, actually and necessarily
incurred by him in connection with the defense of any action, suit,
investigation or proceeding or similar legal activity, regardless of whether
criminal, civil, administrative or investigative in nature, to which he is made
a party by reason of his then being or having been an officer or director of
Twinlab to the full extent permitted by applicable law. The Company shall (upon
receipt by the Company of an undertaking by or on behalf of the Executive to
repay the expenses described in this Paragraph 3(d), if it shall ultimately be
determined that he is not entitled to be indemnified by the Company against such
expenses) pay reasonable expenses, including attorney's fees, incurred by the
Executive in defending any threatened, pending or completed action, suit or
proceeding (or appearing as a witness at a time when he has not been named as a
defendant or respondent with respect thereto) in advance of the final
disposition of any such action, suit or proceeding. The foregoing right of
indemnification will not be deemed exclusive of any other rights to which the
Executive may be entitled under Twinlab's Articles of Incorporation or By-laws,
as in effect from time to time. The Company shall use its best efforts to
maintain a Directors and Officers insurance policy covering Executive's actions
or omissions as an officer or employee of the Company during the Term and for a
period three years thereafter.
4. Cessation of Employment.
(a) Termination For Cause, Resignation, Retirement or Death.
Notwithstanding anything to the contrary contained herein, in the event that
Executive's employment is terminated by the Company for Cause or by reason of
Executive's resignation or retirement, then the Company shall pay to Executive,
within thirty (30) days of the date of such termination, only the Base Salary
through such date of termination. In the event of Executive's death during the
Term, Executive's estate shall receive, in a lump sum, one year of Executive's
Base Salary at the Executive's rate of pay in fiscal year 2002, payable within
thirty days of Executive's death.
(b) For purposes of this Agreement, "Cause" shall mean (i) conviction of,
or plea of nolo contendere (no contest) to, any crime (whether or not involving
the Company) constituting a felony in the jurisdiction involved; (ii) the
Executive's engagement in conduct which is fraudulent or illegal with respect to
the Company ; (iii) gross neglect or misconduct in the performance of
Executive's duties hereunder; (iv) willful failure or refusal to perform such
duties as may be delegated to Executive commensurate with Executive's position
which continues for thirty days after receipt of written notification from the
Board of Directors that such conduct is in violation of Executives duties
hereunder; (v) material violation of the Company's policies, including, without
limitation, those relating to sexual harassment, the disclosure or misuse of
Confidential Information (as hereinafter defined), or those set forth in
Company's Code of Ethics, manuals or statements of policy which continues for
thirty days after receipt of written notification from the Board of Directors
that such conduct is in violation of Executives duties hereunder; (vi) conduct
which is materially injurious or materially damaging to the Company or the
reputation of the
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Company which continues for thirty days after receipt of written notification
from the Board of Directors that such conduct is in violation of Executives
duties hereunder; or (vii) material breach of any provision of this Agreement by
Executive which continues for thirty days after receipt of written notification
from the Board of Directors that such conduct is in violation of Executives
duties hereunder
(c) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from Executive's duties for
six (6) months, whether or not consecutive, out of any twelve (12) month period,
and within thirty (30) days after written notice of termination is given shall
not have returned to the performance of Executive's duties on a full time basis,
the Company may terminate Executive's employment hereunder for "Disability." In
that event, the Company shall pay to Executive (i) within thirty (30) days of
the date of such termination, only the Base Salary through such date of
termination and (ii) all benefits accrued by the Executive as of the date of
termination under all qualified and nonqualified retirement, pension, profit
sharing, and similar plans of the Company to such extent in such manner and at
such time as are provided under the terms of such plans and arrangements. During
any period that Executive fails to perform Executive's duties hereunder as a
result of incapacity due to physical or mental illness (a "Disability Period"),
Executive shall continue to receive the compensation and benefits provided by
Section 3 hereof unless and until Executive's employment hereunder is
terminated; provided, however, that the amount of compensation and benefits
received by Executive during the Disability Period shall be reduced by the
aggregate amounts, if any, payable to Executive under the Social Security or
state disability insurance programs.
(d) Termination By The Company For Any Other Reason. In the event that
Executive's employment hereunder is terminated by the Company during the Term
for any reason other than as provided in Sections 4(a), 4(c), or 8 hereof, or in
the event the Term is not renewed, Executive shall be entitled to receive the
Non-Compete Benefit for the duration of the Non-Compete Term (as such terms are
defined in paragraph 5, below) and Executive shall also be paid a bonus solely
for the calendar year during which the termination occurs on a pro-rata basis
through his last day of employment for such year. For purposes of this
paragraph, the pro-rata bonus shall be based on a maximum bonus opportunity
equal to Executive's Base Salary for the year of termination. Executive shall
also receive pay for any unused vacation or sick days, consistent with the
Company's payroll records and the Company shall assume responsibility for any
automobile lease for the vehicle rented by Executive as his Company car. During
the balance of the remaining Term following any termination under this
sub-paragraph, and during any Non Compete Term Executive shall participate in
and receive the medical, Executive Medical, dental, and prescription drug
insurance; benefits as provided for in Section 3 hereof to the same extent as if
Executive's employment hereunder had not been terminated; provided, however,
that notwithstanding anything to the contrary herein, in the event that
Executive shall breach any of the provisions of Sections 4, 5, 6 or 7 hereof, in
addition to any other remedies the Company may have, the Company's obligation
pursuant to this Agreement to pay the Non-Compete Benefit, and to continue
certain benefits and perquisites shall cease and Executive's rights thereto
shall terminate.
(e) No Further Liability; Release. Payment made by the Company in
accordance with Section 4 of this Agreement shall operate to fully discharge and
release the Company and its directors, officers, employees, subsidiaries,
affiliates, stockholders, successors, assigns, agents and representatives from
any further obligation or liability (other than obligations Company may have
pursuant to Company's Stock Incentive and Stock Option Plans) with respect to,
in connection with or arising out of Executive's employment and termination of
employment.
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Other than making payments and continuing any benefits under this Section 4 ,
the Company and its directors, officers, employees, subsidiaries, affiliates,
stockholders, successors, assigns, agents and representatives shall have no
further obligation or liability under this Agreement to Executive or any other
person or entity arising out of or related to Executive's employment or the
termination thereof, and Executive waives any and all rights to pursue any other
remedy at law or in equity; provided, however, that this shall not constitute a
waiver or release of any rights provided under any federal, state, or local laws
or regulations relating to discrimination in employment. The Company shall have
the right to condition the payment of any severance or other amounts pursuant to
this Section 4 upon the delivery by Executive to the Company of a release (in
form and substance satisfactory to the Company) of any and all claims Executive
may have against the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives arising out of or related to Executive's employment by the
Company and termination of such employment.
(f) Survival. The provisions of Sections 4, 5, 6 and 7 herein shall
survive termination of this Agreement or termination of employment for any
reason whatsoever.
5. Non-Competition. In consideration of this Agreement, during Executive's
employment with the Company and for a period of three years thereafter (the
"Non-Compete Term"), Executive shall not, directly or indirectly, own, manage,
operate, join, control invest in or otherwise be connected or associated with in
any manner, including as an officer, director, employee, distributor ,
independent contractor, independent representative, partner, consultant,
advisor, agent, proprietor, trustee or investor, any Competing Business (defined
below); provided, however, that ownership of less than 5% of the stock or other
securities of a corporation, the stock of which is listed on a national
securities exchange or is quoted on The Nasdaq Stock Market, shall not
constitute a breach of this Section 5, so long as Executive does not in fact
have the power to control, or direct the management of, or is not otherwise
associated with, such corporation. Notwithstanding the foregoing, in the event
Executive resigns from his employment with Twinlab the Non-Compete Term shall be
limited to the duration of Executives employment with the Company and for a
period of two years thereafter.
As additional consideration for the obligations of Executive set forth in
this Agreement and in this paragraph, and Executive's services to the Company,
during the Non-Compete Term, the Company shall pay Executive at an annual rate
of $550,000 payable in accordance with the Company's standard payroll practices
(the "Non-Compete Benefit").
For purposes hereof, the term "Competing Business" shall mean any business
or venture which is engaged, directly or indirectly, anywhere in the world, in
(i) the business of developing, manufacturing, marketing, selling and/or
distributing vitamins, minerals, nutritional supplements or (ii) any other
business which is substantially similar to the whole or any significant part of
the business conducted by the Company.
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6. No Solicitation.
(a) During Executive's employment with the Company under this Agreement,
and for a period of three years thereafter, Executive shall not, directly or
indirectly, including on behalf of, for the benefit of, or in conjunction with,
any other person or entity, (i) solicit, assist, advise, influence, induce or
otherwise encourage in any way, any employee of the Company who is employed in
an executive, managerial, administrative or professional capacity or who
possesses Confidential Information (defined below) to leave the Company, nor
assist any person or entity in doing so, or employ, engage or otherwise contract
with any such employee or former employee of the Company in a Competing Business
(defined below) or any other business unless such former employee shall not have
been employed by the Company for a period of at least one year, (ii) interfere
in any manner with the relationship between any employee and the Company or
(iii) contact, service or solicit any existing clients, customers or accounts of
the Company on behalf of a Competing Business (defined below), either as an
individual on his own account, as an investor, or as an officer, director,
partner, joint venturer, consultant, employee, agent or salesman of any other
person or entity.
7. Confidential Information.
(a) Confidential Information. "Confidential Information" shall mean
confidential records and information of or related to Twinlab, its businesses,
employees or business practices, including, but not limited to, development,
marketing, purchasing, organizational, strategic, financial, managerial,
administrative, manufacturing, production, distribution and sales information,
distribution methods, data, specifications, formulations, recipes, product
development concepts, plans, collections of categorized materials, strategies
and processes (including the Transferred Property as hereinafter defined)
presently owned or at any time hereafter developed by Twinlab or its agents or
consultants or used presently or at any time hereafter in the course of the
business of Twinlab, that are not otherwise part of the public domain.
(b) Transfer of Property by Executive. Executive hereby transfers and
assigns to the Company, or to any person or entity designated by the Company,
all of his entire right, title and interest in and to all inventions, ideas,
disclosures and improvements (the "Inventions"), whether patented or unpatented,
and copyrightable material and all trademarks, trade names, all goodwill
associated therewith and all federal and state registrations or applications
thereof, made, adopted or conceived by Executive solely or jointly, in whole or
in part (collectively, the "Transferred Property"), prior to or during the
Agreement Term which (i) relate to methods, apparatus, designs, products,
processes or devices sold, leased, used or under construction or development by
Twinlab or (ii) otherwise relate to or pertain to the business, products,
services, functions or operations of Twinlab. Executive shall make adequate
written records of all Inventions, which records shall be the Company's property
and shall communicate promptly and disclose to the Company, in such form as the
Company requests, all information, details and data pertaining to the
aforementioned Inventions. Whether during the Term or thereafter, Executive
shall execute and deliver to the Company such formal transfers and assignments
and such other papers and documents as may be required of Executive to permit
the Company, or any person or entity designated by the Company, to file and
prosecute the patent applications and, as to copyrightable material, to obtain
copyrights thereon, and as to trademarks, to record the transfer of ownership of
any federal or state registrations or applications.
(c) Protection of Confidential Information. All such Confidential
Information is considered secret and will be disclosed to the Executive in
confidence, and the Executive
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acknowledges that, as a consequence of his employment and position with the
Company, the Executive may have access to and become acquainted with
Confidential Information. Except in the performance of his duties as an employee
of the Company, the Executive shall not, during the Term and at all times
thereafter, directly or indirectly for any reason whatsoever, disclose or use
any such Confidential Information. All records, files, drawings, documents,
equipment, papers and other tangible items, wherever located, relating in any
way to or containing Confidential Information, which the Executive has prepared,
used, collected, stored or encountered or shall in the future prepare, use or
encounter, shall be and remain the Company's sole and exclusive property and
shall be included in the Confidential Information. Upon termination of this
Agreement, or whenever requested by the Company, the Executive shall promptly
deliver to the Company any and all of the Confidential Information and copies
thereof, not previously delivered to the Company, that may be in the possession
or under the control of the Executive. The foregoing restrictions shall not
apply to the use, divulgence, disclosure or grant of access to Confidential
Information to the extent, but only to the extent, (i) expressly permitted or
required pursuant to any other written agreement between the Executive and the
Company that expressly references this section of this Employment Agreement,
(ii) such Confidential Information has been publicly disclosed (not due to a
breach by the Executive of his obligations hereunder, or by breach of any other
person, of a fiduciary or confidential obligation to the Company) or (iii) the
Executive is required to disclose Confidential Information by or to any court of
competent jurisdiction or any governmental or quasi-governmental agency,
authority or instrumentality of competent jurisdiction, provided, however, that
the Executive shall, prior to any such disclosure, immediately notify the
Company of such requirement and provided further, however, that the Company
shall have the right, at its expense, to object to such disclosures and to seek
confidential treatment of any Confidential Information to be so disclosed on
such terms as it shall determine.
8. Change of Control Protection. If during the Term there is an Acquisition of
Control of the Company, and any time within two (2) years thereafter, (i) your
employment with the Company is terminated without Cause or (ii) you resign for
Other Reasons as set forth in paragraph 8 (c), then except as otherwise provided
in Section 8(d)(ii) you shall be entitled to receive severance equal to three
(3) times the annual Non-Compete Benefit and the Company shall reimburse you for
your payments under COBRA for a period of eighteen months (18 months) following
the date of termination or resignation, should you elect to continue coverage
pursuant to COBRA. For purposes of this paragraph, payment of the aggregate
amount of the Non-Compete Benefit shall be paid to Executive in equal
installments over a period of two years commencing with Executive's termination
or resignation date and at the times the Base Salary would have otherwise been
paid had Executive's employment not been terminated. The payments and benefits
provided for in this paragraph shall be in lieu of and not in addition to any
other payments or benefits set forth in this Agreement, including but not
limited to those provided under paragraphs 4(d) and 5. Except as otherwise
provided in Section 8(d)(ii), the stock option agreements covering the options
granted to you in connection with your employment (the "Options"), will be
amended to provide for an acceleration of the vesting of such options upon the
circumstances described above.
For the purposes of this paragraph 8 only, the following terms shall have
the meanings set forth below:
(a) "Acquisition of Control" shall mean:
(i) any person, including a group or entity, becoming the
beneficial owner of, or acquiring the power to direct the
exercise of voting power with respect
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to, directly or indirectly securities which represent fifty
percent (50%) or more of the combined voting power of the
Company's outstanding securities thereafter (an "Acquiring
Person"); or
(ii) the stockholders of Twinlab approve a merger or consolidation
of Twinlab with any other corporation, other than a merger or
consolidation which would result in the voting securities of
Twinlab immediately prior to the merger or consolidation
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving or
parent entity) 50% or more of the combined voting power of the
voting securities of any new company or surviving or parent
entity outstanding immediately after such merger or
consolidation; or
(iii) the stockholders of the Company approve an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets (or any transaction having a similar
effect).
(b) "Incumbent Director" shall mean any director of the Company serving at
January 1, 2002, or one elected thereafter if nominated by at least two-thirds
of the then Incumbent Directors.
(c) "Other Reasons" shall mean (i) reduction in your base salary; (ii)
material diminution in your duties, which diminution continues after notice
thereof is given to the Company by you; (iii) the Company's failure to maintain
a material benefit or compensation plan ( i.e., medical insurance or 401(k)) or
plans that are substantially similar to, or afford substantially similar
benefits as, such benefit or compensation plans; (iv) relocation of your primary
work location more than fifty miles from your current location; or (v) failure
by the Company to obtain the agreement to assume and perform this Agreement by
an acquiring Person.
(d) Certain Additional Payments by the Company. (i) Except as otherwise
provided in Section 8(d)(ii), in the event that any payment or distribution by
the Company to or for the benefit of the Executive pursuant to the terms of this
Agreement or pursuant to the Stock Option Agreements (including without
limitation the value of accelerated vesting of the stock options granted
pursuant to such Stock Option Agreements) (collectively the "Payments"), will be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (or any successor provision thereto) ("Excise Tax"), then
the Company will reimburse the Executive for the tax imposed by such Section up
to 20% of such Payments. Such reimbursement shall be made by the Company no
later than (A) the date such Excise Tax is due or required to be withheld from
the Executive's compensation or (B) within a reasonable time after submission by
the Executive of his tax returns to the Company. Notwithstanding the foregoing,
if, after the receipt by the Executive of an amount paid to him pursuant to this
Section 8(d)(i), the Executive becomes entitled to any refund with respect to
any Excise Tax imposed, the Executive shall pay to the Company an amount equal
to the amount of such refund (together with any interest paid or credited
thereon). Such payment is not intended to be made on a "grossed-up" basis, and
any additional tax liability imposed on Executive due to any Payments, including
further taxes imposed on such reimbursement, shall be borne by Executive.
(ii) Notwithstanding the foregoing provisions of this Section 8, if it is
determined that the Executive's net after tax benefit will be greater by
applying the provisions of this Section 8(d)(ii) than by applying the provisions
of Section 8(d)(i), then (A) the Payments, in the
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aggregate, shall be reduced to the maximum amount that the Executive may receive
without being subject to the Excise Tax, and (B) no amount shall be paid to the
Executive pursuant to Section 8(d)(i). [All determinations to be made pursuant
to this Section 8, including whether or not any Payments would be subject to the
Excise Tax and whether the Executive's net after tax benefit will be greater by
applying the provisions of this Section 8(d)(ii) than by applying the provisions
of Section 8(d)(i), shall be made by an accounting firm selected by the
Executive (or such other accounting firm as may be agreed upon by the Company
and the Executive).
9. Assignment and Transfer; No Third Party Beneficiary.
(a) Company. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company to, any existing or future
subsidiary or affiliate of the Company, any purchaser of all or substantially
all of the Company's business or assets, any successor to the Company or any
assignee thereof (each, a "Successor"), whether direct or indirect, by purchase,
merger, consolidation, operation of law or otherwise. The Company will require
any such Successor by agreement in form and substance reasonably satisfactory to
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such purchase, merger, consolidation, succession or assignment had taken
place. Regardless of whether such agreement is executed, this Agreement shall be
binding upon any Successor of the Company in accordance with the operation of
law, and such Successor shall be deemed to be the Company or Twinlab, as
appropriate, for purposes of this Agreement
(b) Executive. Executive's rights and obligations under this Agreement
shall not be transferable by Executive by assignment or otherwise, and any
purported assignment, transfer, alienation or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to
Executive 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 Executive's estate.
10. Miscellaneous.
(a) Cooperation. Following notice of termination of employment with the
Company, Executive shall cooperate with the Company, as requested by the
Company, to affect a transition of Executive's responsibilities and to ensure
that the Company is aware of all matters being handled by Executive.
(b) Protection of Reputation. During the Term and thereafter, Executive
agrees that he will not take action which is intended or would reasonably be
expected to harm the Company or its reputation or which would reasonably be
expected to lead to unwanted or unfavorable publicity to the Company.
(c) General Release. In exchange for and in consideration of the payments
to be made pursuant to this Employment Agreement, Executive does hereby release,
absolve and discharge the Company and Twinlab, and each of them, as well as
their trustees, directors, officers, agents, servants, employees, affiliates,
stockholders, successors, assigns, and representatives, past and present, and
each of them (hereinafter collectively referred to as "Releasees") from any and
all claims, demands, liens, agreements, contracts, covenants, actions, suits,
causes of action, wages, obligations, commissions, overtime payments, debts,
expenses, damages, judgments, orders and liabilities of whatever kind or nature
in law, equity or otherwise, whether known or unknown, to Executive arising out
of or related to Executive's
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employment by the Company which Executive now owns or holds or has at any time
before the date of this Agreement owned or held as against Releasees, or any of
them.
(d) Governing Law/Jurisdiction/Process. This Agreement, including the
validity, interpretation, construction and performance of this Agreement, shall
be governed by and construed in accordance with the internal laws of the State
of New York, without regard to principles of conflicts of law. All actions and
proceedings relating to or arising out of this Agreement shall be litigated
solely in any New York state court or United States federal court located in
Suffolk County, New York. The parties hereto expressly consent to the
jurisdiction of any such court and to venue therein and consent to the service
of process in any such action or proceeding by certified or registered mailing
of the summons and complaint therein directed to Executive or the Company at the
address as provided in Section 9(j) hereof.
(e) Entire Agreement. This Agreement and the Exhibits attached hereto
contain the entire agreement and understanding between the parties hereto in
respect of the subject matter hereof and except as is specifically set forth
herein supersede, cancel and annul any prior or contemporaneous written or oral
agreements, understandings, representations, commitments and practices between
them respecting the subject matter hereof.
(f) Amendment. This Agreement may be amended only by a writing which makes
express reference to this Agreement as the subject of such amendment and which
is signed by Executive and, on behalf of the Company, by its duly authorized
officer.
(g) Non-waiver. Neither any course of dealing nor any failure or neglect
of either party hereto in any instance to exercise any right, power or privilege
hereunder or under law shall constitute a waiver of any other right, power or
privilege or of the same right, power or privilege in any other instance. All
waivers by either party hereto must be contained in a written instrument signed
by the party to be charged and, in the case of the Company, by its duly
authorized officer.
(h) Remedies for Breach. The parties hereto agree that Executive is
obligated under this Agreement to render personal services during the Term of a
special, unique, unusual, extraordinary and intellectual character, thereby
giving this Agreement special and extraordinary value, and, in the event of a
breach or threatened breach of any provision of this Agreement by Executive, the
injury or imminent injury to the value and the goodwill of the Company's
business could not be reasonably or adequately compensated in damages in an
action at law. Accordingly, Executive expressly acknowledges that the Company
shall be entitled to specific performance, injunctive relief and any other
applicable equitable remedy against Executive without the posting of a bond in
the event of any breach or threatened breach of any provision of this Agreement
by Executive. Without limiting the generality of the foregoing, if Executive
breaches or threatens to breach any of the provisions of Sections 5, 6, or 7
hereof, such breach or threatened breach will entitle the Company to enjoin
Executive from engaging in any activities prohibited by such provisions, as is
appropriate. This provision shall not be construed as a waiver of any of the
rights which the Company may have for damages under this Agreement or otherwise,
and all of the Company's rights and remedies shall be unrestricted.
(i) Reasonableness of Restrictions. Executive agrees and acknowledges that
(i) the provisions of Sections 5, 6, and 7 hereof may limit his ability to earn
a livelihood in a business similar to the business of the Company but
nevertheless agrees that such provisions are reasonable and necessary for the
protection of the Company and do not impose a greater
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restraint than is necessary to protect the goodwill or other business interests
of the Company; (ii) such provisions contain reasonable limitations as to the
time and the scope of activity to be restrained; and (iii) the consideration
provided under this Agreement including the severance, bonus and other benefits
and perquisites pursuant to paragraphs 3 and 5 above, and stock options granted
to Executive, is sufficient to compensate Executive for the restrictions imposed
in Sections 5, 6, and 7 hereof. In consideration of the foregoing and in light
of Executive's education, skills and abilities, Executive agrees that any
defenses by Executive to the strict enforcement of such provisions are hereby
waived by Executive and Executive agrees that he will not assert that such
provisions are void, voidable or unenforceable.
(j) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when sent by certified or registered mail,
return receipt requested, or by a nationally recognized overnight courier
service, with postage prepaid to Executive:
Xxxx Xxxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
or to such other residence address of Executive as is reflected in the Company's
records or as otherwise designated by Executive by notice given pursuant to this
paragraph; and if to Company:
Twin Laboratories Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
With a copy to:
General Counsel
Twin Laboratories Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
All such notices, requests, consents and approvals shall be effective upon being
deposited in the United States mail or upon delivery to such overnight courier
service. Rejection or other refusal to accept, or the inability to deliver
because of changed address of which no notice was given as provided herein,
shall be deemed to be receipt of the notice, request, consent or approval sent.
(k) Assistance in Proceedings, etc. Executive shall, without additional
compensation, during and after expiration of the Agreement Term and any
applicable renewal period, upon reasonable notice, furnish such information and
proper assistance to the Company as may reasonably be required by the Company in
connection with any legal or quasi-legal proceeding, including any external or
internal investigation, involving the Company or any of its affiliates or in
which any of them is, or may become, a party. The Company shall reimburse
Executive for all reasonable out-of-pocket expenses incurred by the Executive in
connection with services provided under this Section.
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(l) Survival. The respective obligations of Executive and rights and
benefits afforded to the Company as provided in this Agreement shall survive
cessation or termination of Executive's employment hereunder.
(m) Costs and Expenses. Each party shall pay all of its own costs and
expenses, including reasonable legal fees, in connection with the execution,
delivery, performance and compliance with this Agreement by such party. If an
action or proceeding is commenced by a party to enforce or interpret any
provision of this Agreement, each party shall pay its own costs and expenses of
such action or proceeding, including attorneys' fees, however, the Company shall
reimburse Employee up to $7,500 for attorney's fees in connection with any such
action.
(n) Execution In Counterparts. This Agreement may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed to be
an original, but all such counterparts shall constitute one and the same
instruments, and all signatures need not appear on any one counterpart.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
TWIN LABORATORIES INC. EXECUTIVE
By: By:
--------------------------- ----------------------
Name: Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxx
Title: Director - Member of Compensation Date:
Committee of Twinlab Corporation -------------
Date:
-------------
Agreed to and Accepted: TWINLAB CORPORATION
By:
---------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Director - Member of Compensation
Committee of Twinlab Corporation
Date:
-------------
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