EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated February 16, 1999, between Chem International, Inc.,
a Delaware corporation, with offices at 000 Xxxxx 00, Xxxxxxxx, Xxx Xxxxxx
00000, ("Corporation"), and Xxxxxxxxxxx Xxxxx ("Employee").
WHEREAS, the Corporation is in the business of manufacturing, marketing and
selling vitamins and nutritional supplements; and
WHEREAS, Corporation desires to employ Employee, and Employee desires to be
so employed, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and the terms and
conditions hereinafter set forth, the parties agree as follows:
1. Employment. The Corporation agrees to employ the Employee, and the Employee
agrees to be so employed by the Corporation, in the capacity of Vice
President. Employee's employment shall commence on or before March 1, 1999
and shall continue until February 28, 2001 (the "Expiration Date") or the
earlier termination of this Agreement in accordance with Section 4 below
(the "Employment Term").
2. Duties. Employee shall devote his full business time and best efforts to
the Corporation in fulfilling his duties consistent with the office of Vice
President. Employee's duties shall consist of those duties delegated to
Employee from time to time by the Corporation's President or Board of
Directors. Employee shall at all times discharge his duties in consultation
with, and subject to the authority of, the Corporation's President.
3. Compensation.
(a) Salary. For the first contract year (March 1, 1999-February 28, 2000)
or part thereof during the Employment Term, Employee shall be paid an
annual salary in weekly installments equal to $90,000 (the "Financial
Compensation"). For the second contract year (March 1, 2000-February
28, 2001) or part thereof during the Employment Term, Employee shall
be paid an annual salary in weekly installments equal to $100,000
("the Financial Compensation"). If after the expiration of the second
contract year, Corporation and employee negotiate a new compensation
agreement, the minimum annual salary for the new compensation
agreement will not be less that $100,000 per year.
(b) Stock Compensation. Employee shall be entitled to participate in the
Corporation's qualified and non qualified stock option plans ("Plans")
during each full year during the term of this Agreement (the "Stock
Compensation") on a basis commensurate with his salary and considering
the amount of stock awarded to other management employees.
(c) Benefits. During each contract year of the term of this Agreement,
Employee shall receive such other benefits as are available to other
management employees of the Corporation. Employee shall also receive
an automobile allowance in an amount to be determined by the President
of the Corporation.
4. Termination During Employment Term.
(a) This Agreement may be terminated prior to the Expiration Date, at the
option of the Corporation, immediately upon written notice to Employee
for Cause (as hereafter defined). In the event of such termination,
Employee shall only be entitled to his unpaid Financial Compensation
through the date of termination but shall not be entitled to any
unpaid Stock Compensation unless required by law. "Cause" as used
herein, shall be defined as any one of the following:
(i) The absence (for any reason other than scheduled and pre-approved
leaves or vacations or sickness or disability) of Employee from
his employment for a continuous period of more than 30 days.
(ii) The theft or fraud by Employee involving the Corporation or the
conviction of Employee of an indictable criminal offense
punishable by a fine of $1,000 or more and/or a jail term of six
(6) months or more.
(iii) The willful disregard by Employee of express directions from the
President or the Board of Directors provided that prior to
termination, Employee shall be given written notice of the
problem and a reasonable period in which to cure the same.
(b) This Agreement may be terminated, at the option of the Corporation, without
Cause, upon not less than thirty (30) days written notice. In such event,
Employee shall be entitled to the full Financial Compensation to Employee
for the remainder of the Employment Term and shall only be entitled to any
unpaid Stock Compensation in accordance with the terms of the Plans.
(c) This Agreement may be terminated at any time by Employee upon thirty (30)
days prior written notice. In such event Employee shall only be entitled to
the Financial Compensation unpaid through the date of termination and shall
not be entitled to any unpaid Stock Compensation.
5. Restrictive Covenants.
(a) Proprietary Property. Employee acknowledges that in the course of his
employment with the Corporation, the Corporation will provide Employee
with, or access to, memoranda, files, records, trade secrets and other
proprietary information and property of the Corporation, including
information regarding the Corporation and operations, market
structures, processes, data, programs, inventions, techniques,
marketing plans, strategies, forecasts, new products, systems,
financial information, budgets, projections, licenses, prices, costs,
and customer supplier lists (collectively the "Proprietary Property")
as is necessary or desirable to assist Employee in the performance of
his employment duties hereunder. Employee acknowledges that the
Proprietary Property, and all information and intellectual property
and other data developed by Employee in connection with his employment
duties, including any inventions, patents, trademarks, copyrights,
ideas, creations, and properties (also hereafter included in the term
"Proprietary Property"), is the sole and exclusive property of the
Corporation, to the extent not available to the public at large.
Employee shall have no right, title or interest of any kind or nature
in the Proprietary Property or any proceeds thereof. Employee
covenants and agrees that he shall not, directly or indirectly, during
the term of this Agreement or thereafter, communicate or divulge to,
or use for the benefit of himself or any other person or entity
without the prior written consent of its owner, any Proprietary
Property or any information in any way relating to the Proprietary
Property. The Proprietary Property shall remain the sole and exclusive
property of the Corporation, as the case may be, and upon termination
of this Agreement, Employee shall immediately thereupon return all
Proprietary Property in his possession or control to the Corporation.
(b) Employment and Post-Employment Restriction. Employee hereby covenants
and agrees that during the term of his employment hereunder, and for a
period of one (1) year after the date of any termination of his
employment with the Corporation in the event he is terminated for
Cause or voluntarily leaves prior to the end of the Employment Term,
he shall not, directly or indirectly, be engaged in any other
commercial activities or pursuits whatsoever which may in any way be
in competition with or in any conflict with the business affairs of
the Corporation in any market or geographic area in which the
Corporation is then doing
business. Employee further covenants and agrees that for one (1) year
after the date of termination of his employment hereunder (for any
reason) he shall not, directly or indirectly, pursue any party that
was a customer of the Corporation on the date of that termination for
the purpose of soliciting and/or providing to any of those customers
any products, goods, or services of the nature and type sold by the
Corporation. For purposes of the preceding sentence, a "customer" of
the Corporation includes (a) any person which the Corporation has
actually contacted for the purpose of obtaining an order for its
products, goods or services and which the Corporation, at the time of
Employee's termination, is still pursuing by regular contacts with
such person, and (b) any person specifically identified by the
Corporation in any of its marketing or strategic plans as a target for
solicitation of orders for the Corporation's products, goods or
services, and with respect to which person the Corporation, has, as of
the time of Employee's termination, expended substantial time, effort
and financial resources.
(c) Remedies. Employee hereby acknowledges that his services under this
Agreement are unique and extraordinary and that irreparable injury may
result to the Corporation in the event of a breach of the terms and
conditions of this Agreement to be performed or observed by him, which
may be difficult to ascertain, and that the award of damages may not
be adequate relief to the Corporation. Employee, therefore, agrees
that in the event of his breach of any of the terms or conditions of
this Agreement to be performed or observed by him, the Corporation
shall have the right, in addition to all other remedies available in
the event of a breach of this Agreement, to injunctive or other
equitable relief against Employee.
(d) Severability. If at the time of the enforcement of subparagraphs (a),
(b) or (c) above a court shall hold that the period or scope of the
provisions thereof are unreasonable under the circumstances then
existing, the parties hereby agree that the maximum period or scope
reasonable under the circumstances shall be substituted for the period
or scope stated in those subparagraphs.
6. Representations and Warranties. Employee hereby represents and warrants
that (a) he has not signed any employment agreement or restrictive covenant
of any kind with any previous employer; (b) he is not bound by the terms of
any employment agreement (written or oral) with any previous employer; and
(c) there is no restriction on the performance of his duties pursuant to
this Agreement.
7. Notices. All notices required or permitted to be given under this Agreement
shall be given by certified mail, return receipt requested, to the parties
at the addresses set forth at the beginning of this Agreement or to such
other addresses as either may designate in writing to the other party.
8. Governing law. This Agreement shall be construed and enforced in accordance
with the laws of the State of New Jersey.
9. Entire contract. This Agreement constitutes the entire understanding and
agreement between the Corporation and Employee with regard to the subject
matter set forth herein. There are no other agreements, conditions or
representations, oral or written, express or implied, with regard hereto.
This Agreement may be amended only in a writing signed by both parties.
10. Non-waiver. A delay or failure by either party to exercise a right under
this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
11. Headings. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions .
12. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same agreement.
13. Modification. No modification, amendment or waiver of the provisions of
this Agreement shall be effective unless in writing specifically referring
hereto and signed by all parties.
14. Assignability and Binding Effect. Employee shall not assign any of his
rights or delegate the performance of any of his obligations hereunder
without the prior written consent of the Board of Directors. However, the
Corporation may assign any of its rights and delegate the performance of
any of its obligations hereunder to any of its successors, assigns or
successors-in-interest. Subject to the provisions of the preceding
sentences, all the terms of this Agreement shall be binding upon and shall
inure to the benefit of the parties and their legal representatives, heirs,
successors and assigns.
15. Survival of Covenants. The covenants and other provisions of this Agreement
shall survive the termination of Employee's employment pursuant to this
Agreement.
IN WITNESS WHEREOF the Corporation and the Employee have signed this Agreement.
CHEM INTERNATIONAL INC.
By:
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E. Xxxxxx Xxx, President
Employee
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Xxxxxxxxxxx Xxxxx
