EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 24, 2004 and effective as of
August 1, 2004, by and between Natural Health Trends Corp., a Florida
corporation (the "Company"), of 00000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 and
Xxxxx Xxxxxx, an individual residing at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxx 00000 (the "Executive").
WITNESSETH:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties mutually agree as
follows:
SECTION 1. EMPLOYMENT. The Company agrees to employ Executive and the
Executive hereby accepts such employment, as the Company's Executive Vice
President and Chief Financial Officer, subject to the terms and conditions set
forth in this Agreement.
SECTION 2. DUTIES; EXCLUSIVE SERVICES; BEST EFFORTS. The Executive
shall perform all duties incident to the position of Executive Vice President
and Chief Financial Officer as well as any other duties as may from time to time
be assigned by the President of the Company or his designee, and agrees to abide
by all By-laws, policies, practices, procedures or rules of the Company. The
Executive agrees to devote his best efforts, energies and skill to the discharge
of the duties and responsibilities attributable to his position, and to this
end, he will devote his full time and attention exclusively to the business and
affairs of the Company. The Executive also agrees that he shall not take
personal advantage of any business opportunities which arise during his
employment and which may benefit the Company. All material facts regarding such
opportunities must be promptly
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reported to the President for consideration by the Company. Notwithstanding the
foregoing, the Executive may donate his time and efforts to charitable causes so
long as such endeavors do not effect his ability to perform his duties under
this Agreement. If requested by the Company, the Executive shall serve on the
Board of Directors or any committee thereof without additional compensation.
SECTION 3. TERM OF EMPLOYMENT; VACATION.
(a) Unless extended in writing by both the Company and the
Executive, the term of this Agreement shall commence on the effective date
hereof and terminate on December 31, 2007, subject to earlier termination by the
parties pursuant to Sections 5 and 6 hereof (the "Term").
(b) The Executive shall be entitled to two (2) weeks vacation
during each year of the Term.
SECTION 4. COMPENSATION OF EXECUTIVE.
4.1 SALARY. The Company shall pay to Executive a base salary
of two hundred thirty thousand ($230,000) dollars for the twelve-month period
commencing August 1st, 2004 (the "Base Salary"), less such deductions as shall
be required to be withheld by applicable law and regulations. The Base Salary
payable to Executive shall be paid at such regular weekly, biweekly or
semi-monthly time or times as the Company makes payment of its regular payroll
in the regular course of business. Commencing on the first anniversary of the
date hereof, the Base Salary shall be increased to two hundred and fifty
thousand ($250,000) and be effective for the rest of the Term.
4.2 STOCK OPTIONS. On the date hereof and upon the execution
of this Agreement by the parties, the Executive shall receive non-qualified
stock options exercisable for an aggregate of 34,124 shares of the Company's
common stock ("Common Stock") at an exercise price equal to the closing price of
the Company's common stock on the date hereof, as reported on the OTC Bulletin
Board. An equal number of Options (or approximately 832 Options) shall vest
monthly during the Term; provided however, that no Options shall vest
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during the six (6) month period commencing on the date hereof and ending on
January 31st, 2005, and on January 31st, 2005, 4,992 Options shall vest. The
Options shall be granted pursuant to the Company's 2002 Stock Plan (the "Plan")
and subject to the terms and conditions thereof.
4.3 PERFORMANCE BONUSES. During the term of this Agreement,
the Executive shall be entitled to receive an annual cash performance bonus (the
"Annual Bonus") for each year during the Term commencing on January 1st and
ending on the following December 31st based upon (i) the Executive's performance
of his duties, and (ii) the Company's financial performance, each as determined
by the Company's Compensation Committee (or lieu thereof, the Company's Board of
Directors) in its reasonable discretion. The Executive and the Company shall
agree on certain minimum and maximum annual performance criteria. If (i) the
minimum target is not achieved, the Executive will not be entitled to any Annual
Bonus, (ii) the minimum target is achieved, the Executive will be entitled to an
Annual Bonus equal to 25% of his Base Salary in effect on January 1st of the
applicable year, or (iii) the maximum target is achieved, the Executive will be
entitled to an Annual Bonus equal to 50% of his Base Salary in effect on January
1st of the applicable year. Such Annual Bonus, if any, shall be paid within
forty five (45) days following the end of such yearly bonus period.
Notwithstanding the foregoing, the Executive shall receive a cash bonus of no
less than $50,000 for each of the calendar years ending December 31, 2004 and
2005.
4.4 EXPENSES. During the Term, the Company shall promptly
reimburse the Executive for all reasonable and necessary travel expenses
(including business class on all international flights over 5 hours in duration)
and other disbursements incurred by the Executive on behalf of the Company, in
performance of the Executive's duties hereunder, assuming Executive has received
prior approval for such travel expenses and disbursements by the Company to the
extent possible consistent with corporate practices with respect to the
reimbursement of expenses incurred by the Company's senior executives. In
addition, the
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Company shall pay or reimburse Executive for any membership fees and dues for
various professional organizations in an amount not to exceed $2,000.00.
4.5 BENEFITS. The Executive shall be permitted during the Term
to participate in any hospitalization or disability insurance plans, health
programs, pension plans, bonus plans or similar benefits that may be available
to other executives of the Company (including coverage under any officers and
directors liability insurance policy), subject to such eligibility rules as are
applied to senior managers generally. The Company shall, if possible, waive any
waiting period applicable to the Executive under any benefit plan.
SECTION 5. DISABILITY OF THE EXECUTIVE. If the Executive is
incapacitated or disabled by accident, sickness or otherwise so as to render the
Executive mentally or physically incapable of performing the services required
to be performed under this Agreement for a period of 90 consecutive days or 120
days in any period of 360 consecutive days (a "Disability"), the Company may, at
the time or during the period of such Disability, at its option, terminate the
employment of the Executive under this Agreement immediately upon giving the
Executive written notice to that effect.
SECTION 6. TERMINATION.
6.1 WITH CAUSE. The Company may terminate the employment of
the Executive and all of the Company's obligations under this Agreement at any
time for Cause (as hereinafter defined) by giving the Executive notice of such
termination, with reasonable specificity of the details thereof. "Cause" shall
include, without limitation, the following:
(i) failure or neglect, by the Executive to perform the duties
of the Executive's position;
(ii) failure of the Executive to obey orders given by the
Company or his supervisors;
(iii) misconduct by the Executive in connection with the
performance of any of his duties, including, without limitation,
misappropriation of funds or property of the
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Company, securing or attempting to secure personally any profit in connection
with any transaction entered into on behalf of the Company, misrepresentation to
the Company, or any violation of law or regulations on Company premises or to
which the Company is subject;
(iv) commission by the Executive of an act involving moral
turpitude, dishonesty, theft or unethical business conduct, or conduct which
impairs or injures the reputation of, or xxxxx, the Company;
(v) disloyalty by the Executive, including without limitation,
aiding a competitor;
(vi) failure by the Executive to devote his full time and best
efforts to the Company's business and affairs;
(vii) failure by the Executive to work exclusively for the
Company;
(viii) failure to fully cooperate in any investigation by the
Company;
(ix) any breach of this Agreement or Company rules;
(x) any other act of misconduct by the Executive;
(xi) the Executive's abuse of alcohol or other drugs or
controlled substances; or
(xii) the Executive's death or resignation hereunder; provided
however, that if the Executive resigned for Good Reason (as hereinafter defined)
or in connection with a Change of Control (as hereinafter defined) in accordance
with Section 6.3, such resignation shall not be considered "Cause" hereunder. A
termination pursuant to this Section 6.1 shall take effect 10 days after the
giving of written notice to the Executive unless the Executive shall, during
such 10-day period, remedy to the reasonable satisfaction of the Board of
Directors of the Company the misconduct, disregard, abuse or breach specified in
such notice; provided, however, that such termination shall take effect
immediately upon the giving of such notice if the Board of Directors of the
Company shall, in its reasonable discretion, have determined that such
misconduct, disregard, abuse or breach is not remediable (which determination
shall be stated in such notice).
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6.2 WITHOUT CAUSE. The Company may terminate the employment of
the Executive and all of the Company's obligations under this Agreement (except
as hereinafter provided) at any time during the Term without Cause by giving the
Executive written notice of such termination, to be effective 10 days following
the giving of such written notice.
6.3 CHANGE OF CONTROL. The Executive may terminate this
Agreement by delivering written notice to the Company within six (6) months
following the effective date of a Change of Control. As used herein, the term
"Change of Control" shall mean: (i) when any "person" as defined in Section
3(a)(9) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), and as used in Section 13(d) and 14(d) thereof, including a "group" as
defined in Section 13(d) of the Exchange Act, but excluding the Company or any
subsidiary or any affiliate of the Company or any employee benefit plan
sponsored or maintained by the Company or any subsidiary of the Company
(including any trustee of such plan acting as trustee), becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of securities of the
Company representing more than 50% of the combined voting power of the Company's
then outstanding securities; or (ii) when, during any period of twenty-four (24)
consecutive months, the individuals who, at the beginning of such period,
constitute the Board of Directors (the "Incumbent Directors") cease for any
reason other than death to constitute at least a majority thereof, provided,
however, that a director who was not a director at the beginning of such
24-month period shall be deemed to have satisfied such 24-month requirement (and
be an Incumbent Director) if such director was elected by, or on the
recommendation of or with the approval of, at least two-thirds of the directors
who then qualified as Incumbent Directors either actually (because they were
directors at the beginning of such 24-month period) or through the operation of
this proviso; or (iii) the occurrence of a transaction requiring stockholder
approval under applicable state law for the acquisition of the Company by an
entity other than the Company or a subsidiary or an affiliated company of the
Company through purchase of assets, or by merger, or otherwise.
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6.4 WITH GOOD REASON. The Executive may terminate his
employment hereunder (and the Term) for Good Reason after the occurrence of such
event constituting a material breach of this Agreement by the Company that has
not been fully cured within ten (10) days after written notice thereof has been
given by the Executive to the Company. "Good Reason" shall mean the occurrence
of any of the following without the written consent of the Executive of his
approval: (i) the assignment to Executive of duties inconsistent with the
Agreement or a change in his title or authority; (ii) any change in reporting
responsibility so that Executive reports to any person other than the President
of the Company; (iii) the requirement of the Executive to relocate to a location
outside the Dallas/Forth Worth metropolitan area; or (iv) any material breach of
the Agreement by the Company.
For convenience of reference, the date upon which any termination of
the employment of the Executive pursuant to Sections 5 or 6 shall be effective
shall be hereinafter referred to as the "Termination Date".
SECTION 7. EFFECT OF TERMINATION OF EMPLOYMENT.
7.1 WITH CAUSE. Upon the termination of the Executive's
employment for Cause, neither the Executive nor the Executive's beneficiaries or
estate shall have any further rights to compensation under this Agreement or any
claims against the Company arising out of this Agreement, except the right to
receive (i) the unpaid portion of the Base Salary provided for in Section 4.1,
earned through the Termination Date (the "Unpaid Salary Amount"), (ii)
reimbursement for any expenses for which the Executive shall not have
theretofore been reimbursed, as provided in Section 4.6 (the "Expense
Reimbursement Amount") and (iii) payment for accrued and unused vacation time
(the "Vacation Amount"). All options granted to the Executive shall terminate on
the Termination Date, except in the event that the Executive has been terminated
for Cause due to Executive's death or resignation, in which case the Executive's
right to exercise his vested options shall expire ninety (90) days after the
Termination Date.
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7.2. FOR DISABILITY. Upon the termination of the Executive's
employment as a result of a Disability, neither the Executive nor the
Executive's beneficiaries or estate shall have any further rights to
compensation under this Agreement or any claims against the Company arising out
of this Agreement, except the right to receive (i) the Unpaid Salary Amount,
(ii) the Expense Reimbursement Amount and (iii) the Vacation Amount. Following a
termination for a Disability, the Executive's right to exercise his vested
options shall not expire until ninety (90) days after the Termination Date.
7.3 WITHOUT CAUSE OR FOR GOOD REASON. Upon the termination of
the Executive's employment by the Company without Cause (and not as a result of
a Disability) or by the Executive for Good Reason, neither the Executive nor the
Executive's beneficiaries or estate shall have any further rights to
compensation under this Agreement or any claims against the Company arising out
of this Agreement, except the Executive shall have the right to receive (i) the
Unpaid Salary Amount, (ii) the Expense Reimbursement Amount, and (iii) the
Vacation Amount, and (iv) severance compensation equal to the then Base Salary
for six (6) months if such Termination Date is on or before January 31, 2005, or
twelve (12) months if such Termination Date is on or after February 1, 2005 ,
all of which is payable within thirty (30) days following the Termination Date.
The Executive shall not be entitled to receive any severance payment until and
after (i) he has consulted with qualified independent legal counsel regarding
his employment and termination with the Company, (ii) he has executed a full
general release of all claims against the Company, its affiliates, officers,
directors, employees, agents and representatives, in form and substance
satisfactory to the Company, and delivered such general release to the Company,
and (iii) all applicable waiting periods, if any, with respect to the
irrevocable nature of the general release has have elapsed. Following a
termination not for Cause or by the Executive for Good Reason, the Executive's
right to exercise his vested options shall not expire until ninety (90) days
after the Termination Date (collectively, the "General Release Requirement").
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7.4 CHANGE OF CONTROL. Upon the termination of this Agreement by the Executive
in connection with a Change of Control and in accordance with Section 6.3,
neither the Executive nor the Executive's beneficiaries or estate shall have any
further rights to compensation under this Agreement or any claims against the
Company arising out of this Agreement, except the Executive shall have the right
to receive (i) the Unpaid Salary Amount, (ii) the Expense Reimbursement Amount,
(iii) the Vacation Amount, and (iv) severance compensation equal to the Base
Salary for the greater of (x) the remaining term of this Agreement (as if this
Agreement was not terminated) and (y) two (2) years. The Executive shall not be
entitled to receive any severance payment until and after he has complied with
the General Release Requirement. For the purpose of defining the Executive's
right to stock options, the Executive's termination of employment for a Change
of Control shall be equivalent to an involuntary termination of employment. The
Executive's right to his vested options shall not expire until ninety (90) days
after the Termination Date.
SECTION 8. RESTRICTIVE COVENANTS.
8.1 CERTAIN DEFINITIONS. For purposes of this Section 8, the
following terms shall have the following meanings:
"COMPETITIVE ACTIVITY" means any activity conducted in the
Restricted Area which competes with any substantial aspect or part of Employer's
business whether as a proprietor, partner, shareholder, owner, member, employer,
employee, independent contractor, venturer or otherwise.
"COMPETITOR" means any Person, other than Employer or its
successor, which at any time during the Restriction Period engages in any
Competitive Activity.
"CONFIDENTIAL INFORMATION" means all information of or
relating to Employer, its business or practice, which is not generally known or
available to the public (whether or not in written or tangible form) including,
without limitation, customer lists,
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supplier lists, processes, know-how, trade secrets, pricing policies and other
confidential business information.
"CONFIDENTIAL MATERIALS" means any and all documents, records,
reports, lists, notes, plans, materials, customer lists, distributor lists,
programs, software, disks, recordings, manuals, correspondence, memoranda,
magnetic media or any other tangible media (including, without limitation,
copies or reproductions of any of the foregoing) in which any Confidential
Information may be contained.
"EMPLOYER" means Parent, Employer and its Subsidiaries,
whether now or in the future.
"PERSON" means an individual, proprietorship, partnership,
joint venture, corporation, limited liability company, association, trust,
estate, unincorporated organization, a government or any branch, subdivision,
department or agency thereof, or any other entity.
"PERSONNEL" means any and all employees, contractors, agents,
consultants or other Persons rendering services to Employer for compensation in
any form, whether employed by or independent of Employer.
"RESTRICTED AREA" means the United States, Canada and Asia and
their respective territories and possessions, and worldwide with respect to any
Competitive Activity involving the Internet, World Wide Web, telemarketing or
other electronic or similar media.
"RESTRICTION PERIOD" means the period of time, commencing on
the date hereof and expiring two (2) years after the termination of Executive's
employment with Employer pursuant to this Agreement, voluntarily or
involuntarily, for any reason whatsoever, subject to extension pursuant to
Section 8.6 below.
8.2 CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. Subject to Section 8.2(c):
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(1) DUTY TO MAINTAIN CONFIDENTIALITY. Executive shall maintain
in strict confidence and duly safeguard to the best of his ability any and all
Confidential Information in his possession or under his control.
(2) COVENANT NOT TO DISCLOSE, USE OR EXPLOIT. Except as
reasonably necessary to perform his duties, Executive shall not, directly or
indirectly, disclose, divulge or otherwise communicate to anyone or use or
otherwise exploit for the benefit of anyone, other than Employer, any
Confidential Information.
(3) CONFIDENTIAL MATERIALS. All Confidential Information and
Confidential Materials are and shall remain the exclusive property of Employer
and no Confidential Materials may be copied or otherwise reproduced, removed
from the premises of Employer or entrusted to any Person (other than Employer or
the Personnel entitled to such materials) by Executive, except as reasonably
necessary to perform his duties, without prior written permission from Employer.
(b) SURVIVAL OF COVENANTS. Notwithstanding anything herein to
the contrary, the covenants set forth in this Section 8.2 shall survive the
termination of this Agreement and any other agreement among any or all of the
parties hereto (regardless of the reason for such termination), unless
terminated by a written instrument that expressly terminates by specific
reference the covenants set forth in this Section 8.2.
(c) PERMITTED ACTIVITIES. If Executive receives a request or
demand for Confidential Information (whether pursuant to a discovery request,
subpoena or otherwise), Executive shall immediately give Employer written notice
thereof and shall exert his best efforts to resist disclosure, within the limits
of the law, including, without limitation, by fully cooperating and assisting
Employer in whatever efforts it may make to resist or limit disclosure or to
obtain a protective order or other appropriate remedy to limit or prohibit
further disclosure or use of such Confidential Information. If Executive
complies with the preceding sentence but nonetheless becomes legally compelled
to disclose Confidential
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Information, Executive shall disclose only that portion of the Confidential
Information that he is legally compelled to disclose.
8.3 COVENANT NOT TO COMPETE. During the Restriction Period,
Executive shall not, directly or indirectly, whether as a sole practitioner,
owner, partner, shareholder, investor, employee, employer, venturer, independent
contractor, consultant or other participant, (i) own, manage, invest in or
acquire any economic stake or interest in any Person involved in a Competitive
Activity, (ii) derive economic benefit from or with respect to any Competitive
Activity or (iii) otherwise engage or participate in any manner whatsoever in
any Competitive Activity; provided, however, this Section 8.3 shall not restrict
Executive from owning less than 2% of the publicly traded debt or equity
securities issued by a corporation or other entity or from having any other
passive investment that creates no conflict of loyalty or interest with any duty
owed to Employer. Executive shall be deemed to have derived economic benefit in
violation of this Section 8.3 if, among other things, any of his compensation or
income is in any way related to any Competitive Activity conducted by any
Person. Further, during the Restriction Period Executive shall not directly or
indirectly advance, cooperate in or help or aid any Competitor in the conduct of
any Competitive Activity.
8.4 COVENANT NOT TO INTERFERE. During the Restriction Period,
Executive shall not, directly or indirectly, recruit, solicit or otherwise
induce or influence any Personnel of Employer to discontinue, reduce the extent
of, discourage the development of or otherwise harm such Personnel's
relationship or commitment to Employer. Conduct prohibited under this Section
8.4 shall include, without limitation, seeking to employ or causing, aiding,
inducing or influencing a Competitor to employ or seek to employ any Personnel
of Employer.
8.5 EQUITABLE RELIEF. Each of the parties acknowledges that
the provisions and restrictions of this Section 8 are reasonable and necessary
for the protection of the legitimate interests of Employer. Each of the parties
further acknowledges that the
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provisions and restrictions of this Section 6 are unique and that any breach or
threatened breach of any of such provisions or restrictions will provide
Employer with no adequate remedy at law, and the result will be irreparable harm
to Employer. Therefore, the parties hereto agree that upon a breach or
threatened breach of the provisions or restrictions of this Section 8, Employer
shall be entitled, in addition to any other rights and remedies which may be
available to it, to institute and maintain proceedings at law or in equity, to
recover damages, to obtain an equitable accounting of all earnings, profits or
other benefits resulting from such breach or threatened breach and to obtain
specific performance or a temporary and permanent injunction.
8.6 FULL RESTRICTION PERIOD. If Executive violates any
restrictive covenant contained herein and Employer institutes action for
equitable relief, Employer, as a result of the time involved in obtaining such
relief, shall not be deprived of the benefit of the full Restriction Period.
Accordingly, the Restriction Period shall be deemed to have the duration
specified in Section 8.1, computed from and commencing on the date on which
relief is granted by a final order from which there is no appeal, but reduced,
if applicable, by the length of time between the date the Restriction Period
commenced and the date of the first violation of any restrictive covenant by
Executive.
8.7 EQUITABLE ACCOUNTING. Employer shall have the right to
demand and receive equitable accounting with respect to any consideration
received by Executive in connection with activities in breach of the restrictive
covenants herein, and Employer shall be entitled to payment from Executive of
such consideration on demand.
8.8 PRIOR BREACHES. Neither the expiration of the Restriction
Period nor the termination of the status of any Customer or Personnel as such
(whether or not due to a breach hereof by Executive) shall preclude, limit or
otherwise affect the rights and remedies of Employer against Executive based
upon any breach hereof during the Restriction Period or before such status of
Customer or Personnel terminated.
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8.9 NONCIRCUMVENTION OF COVENANTS. Executive acknowledges and
agrees that, for purposes of this Agreement, an action shall be considered to
have been taken by Executive "indirectly" if taken by or through, with
Executive's knowledge, (a) any member of his immediate family , (b) any Person
owned or controlled, solely or with others, directly or "indirectly" by
Executive or a member of his family, (c) any Person of which he is an owner,
partner, employer, employee, trustee, independent contractor or agent, (d) any
employees, partners, owners or independent contractors of any such Person or (e)
any other one or more representatives or intermediaries, it being the intention
of the parties that Executive shall not directly or indirectly circumvent any
restrictive covenant contained herein or the intent thereof.
8.10 NOTICE OF RESTRICTIONS. During the Restriction Period,
Executive shall notify each prospective employer, partner or co-venturer of the
restrictions contained in this Agreement. Employer is hereby authorized to
contact any of such Persons for the purpose of providing notice of such
restrictions.
8.11 REDUCTION OF RESTRICTIONS BY COURT ACTION. Each of the
provisions hereof including, without limitation, the periods of time, geographic
areas and types and scopes of duties of, and restrictions on the activities of,
the parties hereto specified herein are and are intended to be divisible, and if
any portion thereof (including any sentence, clause or word) shall be held
contrary to law or invalid or unenforceable in any respect in any jurisdiction,
or as to one or more periods of time, areas or business activities or any part
thereof, the remaining provisions shall not be affected but shall remain in full
force and effect, and any such invalid or unenforceable provision shall be
deemed, without further action on the part of any party hereto or other Person,
modified and amended to the minimum extent necessary to render the same valid
and enforceable in such jurisdiction.
8.12 FAIRNESS OF RESTRICTIONS. Executive acknowledges and
agrees that (a) compliance with the restrictive covenants set forth herein would
not prevent him from earning a living that involves his training and skills
without relocating, but only from
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engaging in unfair competition with, misappropriating a corporate opportunity
of, or otherwise unfairly harming Employer and (b) the restrictive covenants set
forth herein are intended to provide a minimum level of protection necessary to
protect the legitimate interests of Employer. In addition, the parties
acknowledge that nothing herein is intended to or shall, limit, replace or
otherwise affect any other rights or remedies at law or in equity for protection
against unfair competition with, misappropriation of corporate opportunities of,
disclosure of confidential and proprietary information of, or defamation of
Employer, or for protection of any other rights or interest of Employer.
SECTION 9. MISCELLANEOUS.
9.1 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF TEXAS AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WITHIN SAID STATE.
9.2 ENTIRE AGREEMENT. This Agreement (together with the
exhibits attached hereto, which hereby are incorporated by reference) contains
the entire agreement of the parties hereto relating to the employment of
Executive by the Company and the other matters discussed herein and supersedes
all prior agreements and understandings with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
9.3 WITHHOLDING TAXES. The Company may withhold from any
compensation or other benefits payable under this Agreement all federal, state,
city or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
9.4 SUPPLEMENTS AND AMENDMENTS. This Agreement may be
supplemented or amended only upon the written consent of each of the parties
hereto.
9.5 ASSIGNMENT. Except as expressly provided below, this
Agreement shall not be assignable, in whole or in part, by either party without
the prior written consent
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of the other party. The Company may, without the prior written consent of
Executive, assign its rights and obligations under this Agreement to any other
corporation, firm or other business entity with or into which the Company may
merge or consolidate, or to which the Company may sell or transfer all or
substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by, or is
under common ownership with, the Company; provided, however, that such
assignment may be made without Executive's prior written consent only if (a)
such assignment has a valid business purpose and is not for the purpose of
avoiding the Company 's obligations hereunder or Executive's realization of the
benefits of this Agreement and (b) the assignee expressly assumes in writing all
obligations and liabilities to Executive hereunder. The Company will cause any
purchaser of all or substantially all of the assets of the Company, 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 had taken
place. This Agreement shall be binding upon and inure to the benefit of the
Company and their respective successors and permitted assigns. This Agreement
and all rights of Executive hereunder shall inure to the benefit of and be
enforceable by Executive's heirs, personal or legal representatives and
beneficiaries. If this Agreement is terminated pursuant to clause (a) of Section
8.1 hereof, all amounts payable pursuant to clause (a) of Section 8.2 hereof
shall be paid to Executive's designated beneficiaries or, if no such
beneficiaries have been designated, to Executive's estate.
9.6 NO WAIVER. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition
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waived and shall not constitute a waiver of such term or condition for the
future or as to any act other than that specifically waived.
9.7 SEVERABILITY. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be judicially
unenforceable and/or invalid by a court of competent jurisdiction, in whole or
in part, the remaining provisions shall nevertheless be binding, enforceable and
in full force and effect.
9.8 TITLES AND HEADINGS. The titles and headings of the
various Sections of this Agreement are intended solely for convenience of
reference and not intended for any purpose whatsoever to explain, modify or
place any construction upon any of the provisions hereof.
9.9 ATTORNEYS' FEES. In the event that any party hereto brings
suit against the other party, based upon or arising out of a breach or violation
of this Agreement, each party hereto agrees that the party who is successful on
the merits, upon final adjudication from which no further appeal can be taken or
is taken within the time allowed by law, shall be entitled to recover his or its
reasonable attorneys, fees and expenses from the party which is not successful.
9.10 INJUNCTIVE RELIEF. Executive agrees that it would be
difficult to compensate the Company fully for damages for any violation of the
provisions of Sections 6 and 8.3 hereof. Accordingly, Executive specifically
agrees that the Company shall be entitled to temporary and permanent injunctive
relief to enforce such provisions of this Agreement. This provision with respect
to injunctive relief shall not, however, diminish the right of the Company to
claim and recover damages in addition to injunctive relief.
9.11 NOTICES. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when hand delivered (which shall include
personal delivery and delivery by courier, messenger or overnight delivery
service) or mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to Executive: At his home address in accordance with the
Company's records.
If to the Company:
Natural Health Trends Corp.
00000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: President
If to the Executive:
Xxxxx Xxxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
or to such other address of which either party gives notice to the other party
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9.12 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
9.13 JURISDICTION. Each of the parties hereto hereby
irrevocably consents and submits to the exclusive jurisdiction of the courts of
the State of Texas, located in Dallas County, and of the United States District
Court for the Northern District of Texas in connection with any suit, action or
other proceeding concerning the interpretation of this Agreement or enforcement
of Sections 8 or 9 of this Agreement. The Executive waives and agrees not to
assert any defense that the court lacks jurisdiction, venue is improper,
inconvenient forum or otherwise. The Executive waives the right to a jury trial
and agrees to accept service of process by certified mail at the Executive's
last known address.
9.14 POST EMPLOYMENT OBLIGATIONS. (a) All records, files,
lists, including computer generated lists, drawings, documents, equipment and
similar items relating to the Company's business which the Executive shall
prepare or receive from the Company shall remain the Company's sole and
exclusive property. Upon termination of this Agreement, the
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Executive shall promptly return to the Company all property of the Company in
his possession. The Executive further represents that he will not copy or cause
to be copied, print out or cause to be printed out any software, documents or
other materials originating with or belonging to the Company. The Executive
additionally represents that, upon termination of his employment with the
Company, he will not retain in his possession any such software, documents or
other materials.
(b) The Executive agrees that both during and after his
employment he shall, at the request of the Company, render all assistance and
perform all lawful acts that the Company considers necessary or advisable in
connection with any litigation involving the Company or any director, officer,
employee, shareholder, agent, representative, consultant, client or vendor of
the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
NATURAL HEALTH TRENDS CORP.
By:____________________________
Name:
Title:
________________________________
Xxxxx Xxxxxx
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