EMPLOYMENT AGREEMENT
EXHIBIT
10.1
THIS
AGREEMENT
is made
and entered into this 26th
day
July, 2007, effective from July 1, 2006 and for the term provided herein, by
and
between Reliv'
International, Inc.,
a
Delaware corporation (the "Company") and Xxxx
X. Xxxxxxxx
(hereinafter referred to as the "Executive").
WHEREAS,
the
Executive is presently, and for some time has been, employed as an Executive
of
the Company, pursuant to the terms of an Employment Agreement dated June 1,
1997
and a Services Agreement dated July 1, 2002 (“Prior Employment
Agreement”);
WHEREAS,
the
Company desires to be assured of the continued association and services of
Executive and Executive desires to continue in the employment of the Company
on
the terms provided herein.
NOW,
THEREFORE,
in
consideration of the premises and of the terms, covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. Employment,
Duties and Authority.
1.1 The
Company hereby employs Executive and Executive hereby accepts employment by
the
Company on the terms, covenants and conditions herein contained.
1.2 The
Executive is hereby employed by the Company as Vice Chairman and Chief
Scientific Officer. The Executive shall have such duties, responsibilities
and
authority as the Chief Executive Officer, Board of Directors or Executive
Committee of the Company shall determine from time to time. In general, it
is
anticipated that the services which Executive shall perform for the Company
shall include: (i) research concerning product development for the Company,
(ii)
product formulation development, (iii) attendance at, and participation in,
distributor events of the Company as requested from time to time, (iv) research
and writing of articles in professional publications, research papers and the
like and (v) development of quality control protocols for the Company. Executive
shall be Chairman of the Scientific Advisory Board of the Company. With regard
to travel for distributor functions, the Executive shall not be required to
engage in more than two trips per year outside the area of the United States,
Canada and Mexico.
1.3 During
the period from July 1, 2006 through June 30, 2009, Executive shall devote
his
full working and productive time, energies, interest and abilities to the
performance of his duties hereunder and will perform such duties and
responsibilities faithfully and with reasonable care for the welfare of the
Company. During the period from July 1, 2009 through June 30, 2012, Executive
shall devote approximately one-half (approximately 85 hours per month) of his
energies, interest, abilities and productive time to the performance of his
duties and responsibilities hereunder. The Company shall maintain an office
for
Executive at its principal offices and Executive may perform services at such
office; provided, that Executive shall be entitled to perform services hereunder
at his home or other location as well.
1.4 During
the term of his employment hereunder, Executive shall not perform any services
for compensation for any Conflicting Organization (as defined in paragraph
9.1.1
hereof) without the express written consent of the Chief Executive Officer,
Executive Committee or Board of Directors of the Company. Nothing herein shall
be deemed to restrict or prohibit Executive from (i) performing services for,
or
providing advice or consultation to, a business enterprise which is not a
Conflicting Organization provided that such activity does not interfere with
the
performance of services by Executive to the Company as provided herein, (ii)
personal investment activities, including ownership of interests in business
enterprises of any kind (except any enterprise engaged in the sale of products
or services by means of network marketing), which investment activity may
include business non-compensated communications and advice to management;
provided that Executive shall not, without the express written consent of the
Company, permit the use or association of his name by or with, any business
enterprise or (iii) engaging in research and development activities in
connection with matters unrelated to the business of the Company.
2. Compensation
and Benefits.
2.1 Basic
Salary.
2.1.1 During
the period from July 1, 2006 through June 30, 2009, the Company shall pay to
Executive a basic salary at the rate per month of $30,000. During the period
from July 1, 2009 through June 30, 2012, the Company shall pay to Executive
a
basic salary at the rate of $22,500 per month. Such basic salary shall be paid
by the Company to Executive each month, less amounts which the Company may
be
required to withhold from such payments by applicable federal, state or local
laws or regulations.
2.1.2 If
the
Executive shall be absent from work on account of personal injuries or sickness,
he shall continue to receive the payments provided for in paragraph 2.1.1
hereof; provided, however, that any such payment may, at the Company's option,
be reduced by the amount which the Executive may receive, for the period covered
by any such payments, in disability payments (i) pursuant to any disability
insurance which the Company, in its sole discretion, may maintain, or (ii)
under
any governmental program for disability compensation.
2.2 Benefits;
Expense Reimbursement.
2.2.1 During
the term of Executve’s employment hereunder, the Executive shall be entitled to,
and shall receive, all other benefits of employment available to other employees
of the Company generally, including participation in hospital, surgical, medical
or other group health plans or accident benefits, pension or profit-sharing
plans, or vacation plans as shall be instituted or maintained by the Company,
in
its sole discretion. During the term of Executive’s employment hereunder, but
not including the Consultation Term, Executive shall participate in incentive
compensation programs, if any, of the Company for executives at such level
as
the Compensation Committee and Board of Directors shall determine from time
to
time.
2
2.2.2 During
the term hereof, the Company shall reimburse Executive for all reasonable and
necessary expenses incurred by Executive in the performance of his duties
hereunder, including without limitation, travel, meals, lodging, office supplies
or equipment subject to such reasonable limitations, restrictions and reporting
standards as the Board of Directors of the Company may from time to time
establish. Executive shall provide to the Company promptly after incurring
any
such expenses a detailed report thereof and such information relating thereto
as
the Company shall from time to time require. Such information shall be
sufficient to support the deductibility of all such expenses by the Company
for
federal income tax purposes.
2.2.3 Specific
benefits to which Executive shall be entitled shall be set forth on Schedule
A
hereto.
2.3 Compensation
Schedule.
There
is attached as Schedule A hereto a schedule of the basic compensation, incentive
compensation and benefits to which Executive shall be entitled during the
employment term of this Agreement.
3. Term.
3.1 The
employment of Executive hereunder shall be for a term commencing on July 1,
2006
and expiring on June 30, 2012. Executive’s employment with the Company shall
terminate at the expiration of such employment term and, unless this Agreement
shall have been terminated pursuant to paragraph 5 hereof, the Consultation
Term
of this Agreement shall commence on the day following the date upon which
Executive’s employment hereunder shall terminate.
3.2 The
term
of this Agreement shall be for a period of 15 years commencing on July 1,
2006.
4. Consultation
Term.
4.1 Upon
the
expiration or termination of the term of employment, other than a termination
of
this Agreement pursuant to paragraph 5.1 hereof, and commencing on the day
following the date of such expiration for the remainder of the term of this
Agreement (the “Consultation Term”), Executive shall be retained to provide
consulting services to the Company and shall continue as an employee of the
Company. During the Consultation Term, Executive shall provide consulting
services and advice to the Company as the Company may reasonably request, from
time to time, up to 40 hours per month. Such consulting services shall include
advice and consultation regarding the business of the Company and may include,
without limitation, (i) participation in distributor meetings and activities,
(ii) research and development regarding products, (iii) evaluation of products
and food technology. Executive shall not be required to undertake any assignment
inconsistent with the dignity, importance, and scope of his prior position
or
with his physical and mental health at the time.
3
4.2 During
the term of the Consulting Term, the Company shall pay to Executive a monthly
consulting fee in the Current Amount for his services as provided in this
paragraph 4. The “Current Amount” shall mean an amount determined as of July 1
of each of the years 2012, 2015 and 2018 by multiplying the Prior Current Amount
by a fraction the numerator of which shall be the National Consumer Price Index
(NCPI) as of June 30 of the year in which the determination is made and the
denominator of which shall be the NCPI as of the date such Prior Current Amount
shall have been determined. The “Prior Current Amount” shall mean (a) for the
determination to be made of the Current Amount as of July 1, 2012, the Base
Amount, which is determined as of July 1, 2009 or (b) for the determinations
to
be made as of July 1, 2015 and 2018, the Current Amount as determined as of
each
of the dates July 1, 2012 or 2015, respectively. The “Base Amount” shall be
$12,000. The Company shall withhold from such payments such amounts as it may
be
required to withhold under applicable federal, state or local laws or
regulations.
4.3 During
the term of the Consulting Term, the Company shall reimburse Executive for
all
reasonable and necessary expenses incurred by Executive in the performance
of
his duties hereunder, including without limitation, travel, meals, lodging,
office supplies or equipment subject to such reasonable limitations,
restrictions and reporting standards as the Board of Directors of the Company
may from time to time establish. Executive shall provide to the Company promptly
after incurring any such expenses a detailed report thereof and such information
relating thereto as the Company shall from time to time require. Such
information shall be sufficient to support the deductibility of all such
expenses by the Company for federal income tax purposes.
4.4 During
the Consultation Term, Executive shall be entitled to receive all other benefits
of employment available to other employees of the Company generally, including
participation in hospital, surgical, medical or other group health plans or
accident benefits, and a car allowance but shall not be eligible for vacation
benefits or to participate in contributions to the Company’s 401(k) or ESOP
Plans, or in any executive incentive compensation plans. Schedule A shall be
amended at the time of the Consultation Term to reflect such benefits.
4.4 During
the term of the employment of Executive hereunder and Consulting Term, the
Company shall be entitled to use the name and likeness of Executive, and to
reproduce, copy and disseminate, video and audio recordings of Executive,
without additional charge or payment to Executive, in connection with
promotional materials and activities of the Company. From and after the date
of
the expiration of the Term of this Agreement, or of the earlier termination
of
this Agreement in accordance with Paragraph 5 hereof, the Company shall be
entitled to use the name and likeness of Executive, and to reproduce, copy
and
disseminate, video and audio recordings of Executive; provided, however, that
for each calender year during which the Company shall so utilize such items,
the
Company shall pay to Executive, or to his heirs, representatives, or assigns
a
fee in the amount of $10,000. The right of the Company provided herein shall
survive the expiration of the term of this Agreement, or its termination, for
any reason, or the death of Executive, for a period of 20 years.
4
4.5 The
Company may terminate the Consultation Term and its obligation to make payments
of the consulting fees to Executive upon the occurrence of an event of default
with respect to Executive as provided in paragraph 5 hereof.
5. Termination.
5.1 The
Company shall be entitled to terminate this Agreement, and Executive’s
employment or consultation with the Company, prior to the expiration of its
term
or any renewal term, on the occurrence of an event of default with respect
to
Executive as provided herein.
5.2 For
purposes of this Agreement, an event of default with respect to Executive shall
include:
5.2.1 Any
failure by Executive to perform his duties, responsibilities or obligations
hereunder in a faithful and diligent manner or with reasonable care and (if
such
failure can be cured) the failure by Executive to cure such failure within
10
days after written notice thereof shall have been given to Executive by the
Company;
5.2.2 A
violation by Executive of any provision of this Agreement and the failure by
Executive to cure such violation (if such violation can be cured) within 10
days
after written notice thereof shall have been given to Executive by the
Company;
5.2.3 Commission
by Executive of any material act of dishonesty as an employee of the Company
or
of disloyalty to the Company, or any wrongful or unauthorized appropriation,
taking or misuse of funds, property or business opportunities of the
Company.
5.3 The
Company shall be entitled to terminate the employment term of this Agreement
at
any time by written notice to Executive in the event of, and at the time of,
the
permanent mental or physical disability of Executive as provided herein during
the term of employment hereunder. Permanent mental or physical disability of
Executive shall be deemed to have occurred when Executive shall have failed
or
been unable to perform his duties hereunder on a full-time basis for an
aggregate of 180 days in any one period of 210 consecutive days and with a
certification from a licensed physician in the State of Missouri that Executive
is permanently disabled from performing his duties hereunder.
5
5.4 Executive
shall be entitled to terminate his employment or consultation with the Company
under this Agreement prior to the expiration of its term:
5.4.1 Upon
the
occurrence of an event of default with respect to the Company; or,
5.4.2 At
any
time upon 270 days prior written notice to the Company.
5.5 For
purposes of this Agreement an event of default with respect to the Company
shall
include:
5.5.1 Any
failure by the Company to perform its obligations to Executive under this
Agreement and (if such failure can be cured) the failure by the Company to
cure
such failure within 10 days after written notice thereof shall have been given
to the Company by Executive;
5.5.2 The
Company shall:
(a) admit
in
writing its inability to pay its debts generally as they become
due,
(b) file
a
petition for relief under any chapter of Title 11 of the United States Code
or a
petition to take advantage of any insolvency under the laws of the United States
of America or any state thereof,
(c) make
an
assignment for the benefit of its creditors,
(d) consent
to the appointment of a receiver of itself or of the whole or any substantial
part of its property,
(e) suffer
the entry of an order for relief under any chapter of Title 11 of the United
Sates Code, or
(f) file
a
petition or answer seeking reorganization under the Federal Bankruptcy Laws
or
any other applicable law or statute of the United States of America or any
state
thereof.
5.6 In
the
event of termination of this Agreement and Executive's employment or
consultation hereunder by the Company pursuant to paragraph 5.1 hereof, all
rights and obligations of the Company and Executive hereunder shall terminate
on
the date of such termination, subject to the following:
6
5.6.1 Executive
shall be entitled to receive (subject to any rights of set off or counterclaim
by the Company) all salary, fees, additional compensation or benefits which
shall have accrued prior to the date of such termination and the obligation
of
the Company for the payment of salary, consultation fees, additional
compensation or benefits shall terminate as at the date of such
termination;
5.6.2 All
rights of the Company or Executive which shall have accrued hereunder prior
to
the date of such termination, and all provisions of this Agreement provided
herein to survive termination of employment of Executive hereunder, shall
survive such termination and the Company and Executive shall continue to be
bound by such provisions in accordance with the terms thereof;
5.7 In
the
event of termination of the Agreement by Executive in accordance with paragraph
5.4 hereof, all rights and obligations of the Company and Executive hereunder
shall terminate on the date of such termination, subject to the
following:
5.7.1 Executive
shall be entitled to receive all salary, consultation fees, additional
compensation or benefits which shall have accrued prior to the date of such
termination and the Company's obligation for the payment of salary, consultation
fees, additional compensation or benefits shall terminate as of the date of
such
termination;
5.7.2 All
rights of the Company or Executive which shall have accrued hereunder prior
to
the date of such termination and the obligations of Executive pursuant to
paragraphs 6, 7 and 8 provided herein to survive termination of employment
of
Executive hereunder shall survive such termination and the Executive shall
continue to be bound by such provisions in accordance with their
terms.
5.8 This
Agreement and all rights and obligations of the parties hereunder shall
terminate immediately upon the death of Executive except that (i) all rights
of
the Company or Executive which shall have accrued hereunder prior to the date
of
such termination, and all provisions of this Agreement provided herein to
survive termination of employment of Executive hereunder, shall survive the
death of Executive and the Company and heirs, legatees and legal representatives
of Executive shall continue to be bound by such provisions in accordance with
the terms thereof and (ii) the Company shall pay to the heirs, legatees or
personal representative of Executive (a) all compensation or benefits hereunder
accrued but not paid to the date of Executive's death, and (b) an amount equal
to the total compensation which would have been payable to Executive hereunder,
but for his death, for a period of six months from the date of his
death.
6. Confidential
Information.
7
6.1 "Confidential
Information" means information disclosed by the Company to Executive, or
developed or obtained by Executive during his employment or retention as a
consultant by the Company, either before the date or during the term of this
Agreement, provided that such information is not generally known in the business
and industry in which the Company is or may subsequently become engaged,
relating to or concerning the business, projects, products, processes, formulas,
know-how, techniques, designs or methods of the Company, whether relating to
research, development, manufacture, purchasing, accounting, engineering,
marketing, merchandising, selling or otherwise. Without limitation, Confidential
Information shall include all know-how, technical information, inventions,
ideas, concepts, processes and designs relating to products of the Company,
whether now existing or hereafter developed, and all prices, customer or
distributor names, customer or distributor lists, marketing and other
relationships, whether contractual or not, between the Company, its suppliers,
customers, distributors, employees, agents, consultants and independent
contractors but shall exclude the names of customers or distributors known
to
Executive prior to the effective date hereof.
6.2 Executive
agrees that, during the term hereof or while Executive shall receive
compensation hereunder and after termination of his employment with the Company
for so long as the Confidential Information shall not be generally known or
generally disclosed (except by Executive or by means of wrongful use or
disclosure), Executive shall not use any Confidential Information, except on
behalf of the Company, or disclose any Confidential Information to any person,
firm, partnership, company, corporation or other entity, except as authorized
by
the President or the Board of Directors of the Company.
7. Inventions.
7.1 "Inventions"
shall mean discoveries, concepts, ideas, designs, methods, formulas, know-how,
techniques or any improvements thereon, whether patentable or not, made,
conceived or developed, in whole or in part, by Executive.
7.2 Executive
covenants and agrees to communicate and fully disclose to the Board of Directors
of the Company any and all Inventions made or conceived by him during the term
hereof or while receiving any compensation or payment from the Company and
further agrees that any and all such Inventions which he may conceive or make,
during the term hereof or while receiving any compensation or payments from
the
Company, shall be at all times and for all purposes regarded as acquired and
held by him in a fiduciary capacity and solely for the benefit of the Company
and shall be the sole and exclusive property of the Company. The provisions
of
this subparagraph shall not apply to an invention for which no equipment,
supplies, facilities or trade secret information of the Company was used and
which was developed entirely on the Executive's own time, unless (a) the
invention relates (i) to the business of the Company, or (ii) to the Company's
actual or demonstrably anticipated research or development, or (b) the invention
relates to any work performed by Executive for the Company.
8
7.3 Executive
also covenants and agrees that he will assist the Company in every proper way
upon request to obtain for its benefit patents for any and all inventions
referred to in paragraph 7.2 hereof in any and all countries. All such patents
and patent applications are to be, and remain, the exclusive property of the
Company for the full term thereof and to that end, the Executive covenants
and
agrees that he will, whenever so requested by the Company or its duly authorized
agent, make, execute and deliver to the Company, its successors, assigns or
nominees, without charge to the Company, any all applications, applications
for
divisions, renewals, reissues, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary or appropriate in order
to
apply for and obtain patents of the United States or foreign countries for
any
and all Inventions referred to in paragraph 7.2 hereof or in order to assign
and
convey to the Company, its successors, assigns or nominees, the sole and
exclusive right, title and interest in and to such Inventions, applications
or
patents. Executive likewise covenants and agrees that his obligations to execute
any such instruments or papers shall continue after the expiration or
termination of this Agreement with respect to any and all such Inventions,
and
such obligations shall be binding upon his heirs, executors, assigns,
administrators or other legal representatives.
8. Writings
and Working Papers.
Executive
covenants and agrees that any and all books, textbooks, letters, pamphlets,
drafts, memoranda or other writings of any kind written by him for or on behalf
of the Company or in the performance of Executive's duties hereunder,
Confidential Information referred to in paragraph 6.1 hereof and all notes,
records and drawings made or kept by him of work performed in connection with
his employment by the Company shall be and are the sole and exclusive property
of the Company and the Company shall be entitled to any and all copyrights
thereon or other rights relating thereto. Executive agrees to execute any and
all documents or papers of any nature which the Company or its successors,
assigns or nominees deem necessary or appropriate to acquire, enhance, protect,
perfect, assign, sell or transfer its rights under this paragraph. Executive
also agrees that upon request he will place all such notes, records and drawings
in the Company's possession and will not take with him without the written
consent of a duly authorized officer of the Company any notes, records,
drawings, blueprints or other reproductions relating or pertaining to or
connected with his employment of the business, books, textbooks, pamphlets,
documents work or investigations of the Company. The obligations of this
paragraph shall survive the term of employment hereunder or the termination
or
expiration of the term or any renewal term hereof or the term or termination
of
the Consultation Period.
9
9. Covenant
Not to Compete.
9.1 For
purposes of this paragraph:
9.1.1 "Conflicting
Organization" means any person, firm, company, partnership, business,
corporation or other entity engaged in, or intending to engage in, research,
development, production, marketing or selling a Conflicting
Product.
9.1.2 "Conflicting
Product" means any product, process, service or design which competes with,
or
is reasonably interchangeable as a substitute for, any product, process, service
or design developed, planned, under development, produced marketed or sold
by
the Company or any Affiliate during the term of the covenant in this paragraph
9. Without limitation, Conflicting Product includes any food product or
nutritional supplement or product, functional food, weight loss system or
product, sports nutrition product or similar product.
9.1.3 "Territory"
means the geographic area within which the Company or any Affiliate or any
distributor or representative of the Company or any Affiliate is actively
engaged in the sale of, or efforts to sell, the products of the Company or
any
Affiliate at any time during the term of this Agreement.
9.1.4
“Network Marketing Company” shall mean any business, company, corporation,
partnership or enterprise engaged in the business of the sale of food products,
nutritional supplements, functional foods or personal or skin care products
through a network of independent distributors who receive compensation, in
part,
based upon the volume of sales or purchases of distributors sponsored by them
or
their sponsored distributors.
9.1.4 "Affiliate"
shall mean any corporation of which the Company, or any Affiliate, shall own
in
excess of 20% of the capital stock.
9.2 Executive
acknowledges and agrees as follows:
9.2.1 That
the
Company and its Affiliates have developed, and are developing and establishing,
a valuable and extensive trade in its services and products, including without
limitation, nutritional, food and dietary products, and that they have
developed, and are developing, operations and distributors to sell such products
and services throughout the United States and in foreign
countries.
9.2.2 That
the
Company and its Affiliates have developed, and are developing, at great expense,
technical information concerning their products and methods of marketing and
sale which are kept and protected as Confidential Information and trade secrets
and are of great value to the Company and its Affiliates.
10
9.2.3 That,
during the course of his employment and consultation with the Company or an
Affiliate and during the term of this Agreement, Executive has participated,
and
will participate, in such matters and has acquired and will acquire, possession
of Confidential Information, and that Executive has had significant
responsibility for the development activities of the Company and the development
of unique products, methods and techniques of the Company and its
Affiliates.
9.2.4 That,
for
Executive to utilize Confidential Information of the Company and its Affiliates,
or unique skills, techniques or information developed by him while an employee
of, or consultant to, the Company or its Affiliates for a Conflicting
Organization within the area or time provided herein would result in material
and irreparable injury to the Company.
9.2.5 That
the
area and conduct covered by the restrictive covenant in this paragraph includes
only a percentage of the total number of organizations and individuals who
are
customers or distributors or potential customer or distributors for products,
processes or services with respect to which Executive has knowledge or
expertise, that Executive would be able to utilize his knowledge, experience
and
expertise for an employer while fully complying with the terms of this paragraph
and that the terms and conditions of this paragraph are reasonable and necessary
for the protection of the Company's business and assets.
9.3 Executive
agrees that, during the term of his employment hereunder, during the term of
the
Consultation Term, for so long as Executive shall be receiving compensation
hereunder, and for a period of 36 months from and after the date of termination
of his employment or consultation hereunder, he will not, anywhere within the
Territory, directly or indirectly, whether as an employee, agent, officer,
consultant, partner, owner, shareholder or otherwise:
9.3.1 solicit,
or enter into any arrangement or agreement with, or participate with, provide
services to, or be employed by any person, company, partnership, business or
corporation which shall solicit, or enter into any arrangement with, any person
who is, or at any time during the term of this Agreement has been, a distributor
for the Company or any Affiliate, to become a distributor for a Network
Marketing Company ;
9.3.2 solicit
for the sale of, or participate with, provide services to, or be employed by
any
person, company, partnership, business or corporation which shall solicit for
the sale of, any Conflicting Product by a Network Marketing Company
to any person who has been, during the term hereof, a customer of the Company
or
any Affiliate; and
11
9.3.3 engage
or
participate in, be employed by, or provide services or assistance to, any
Conflicting Organization;
Provided,
however that:
| (a) |
The
foregoing provisions of paragraph 9.3 shall not apply in the event
that
Executive shall terminate this Agreement for cause pursuant to Paragraph
5.3.1 hereof.
|
| (b) |
In
the event that Executive shall terminate his employment or consultation
hereunder in accordance with Paragraph 5.3.2 hereof, Paragraph 9.3.3
shall
be amended to provide as follows:
|
Engage
or
participate in, be employed by, or provide services or assistance to, any
Network Marketing Company.
Nothing
herein shall be deemed to restrict or prohibit Executive from (i) performing
services for, or providing advice or consultation to, a business enterprise
which is not a Conflicting Organization provided that such activity does not
interfere with the performance of services by Executive to the Company as
provided herein, (ii) personal investment activities, including ownership of
interests in business enterprises of any kind (except any enterprise engaged
in
the sale of products or services by means of network marketing), which
investment activity may include business non-compensated communications and
advice to management; provided that Executive shall not, without the express
written consent of the Company, permit the use or association of his name by
or
with, any business enterprise or (iii) engaging in research and development
activities in connection with matters unrelated to the business of the
Company.
10. Specific
Enforcement.
Executive
is obligated under this Agreement to render service of a special, unique,
unusual, extraordinary and intellectual character, thereby giving this Agreement
peculiar value so that the loss of such service or violation by Executive of
this Agreement could not reasonably or adequately be compensated in damages
in
an action at law. Therefore, in addition to other remedies provided by law,
the
Company shall have the right during the term or any renewal term of this
Agreement (or thereafter with respect to obligations continuing after the
expiration or termination of this Agreement) to compel specific performance
hereof by Executive or to obtain injunctive relief against violations hereof
by
Executive, and if the Company prevails in any proceeding therefor, it will
also
be entitled to recover all costs and expenses incurred by the Company in
connection therewith, including attorneys' fees.
12
11. Assignment.
The
rights and duties of a party hereunder shall not be assignable by that party,
except that the Company may assign this Agreement and all rights and obligations
hereunder to, and may require the assumption thereof by, any corporation or
any
other business entity which succeeds to all or substantially all the business
of
the Company through merger, consolidation or corporate reorganization or by
acquisition of all or substantially all of the assets of the
Company.
12. Binding
Effect. This
Agreement shall be binding upon the parties hereto and their respective
successors in interest, heirs and personal representatives and, to the extent
permitted herein, the assigns of the Company.
13. Severability.
If
any
provision of this Agreement or any part hereof or application hereof to any
person or circumstance shall be finally determined by a court of competent
jurisdiction to be invalid or unenforceable to any extent, the remainder of
this
Agreement, or the remainder of such provision or the application of such
provision to persons or circumstances other than those as to which it has been
held invalid or unenforceable, shall not be affected thereby and each provision
of this Agreement shall remain in full force and effect to the fullest extent
permitted by law. The parties also agree that, if any portion of this Agreement,
or any part hereof or application hereof, to any person or circumstance shall
be
finally determined by a court of competent jurisdiction to be invalid or
unenforceable to any extent, any court may so modify the objectionable provision
so as to make it valid, reasonable and enforceable.
14. Notices.
All
notices, or other communications required or permitted to be given hereunder
shall be in writing and shall be delivered personally or mailed, certified
mail,
return receipt requested, postage prepaid, to the parties as
follows:
|
If
to the Company:
|
Xxxxxx
X. Xxxxxxxxxx
|
|
Chief
Executive Officer
|
|
|
Reliv'
International, Inc.
|
|
|
P.
O. Xxx 000
|
|
|
Xxxxxxxxxxxx,
XX 00000-0000
|
|
|
If
to Executive:
|
Xxxx
X. Xxxxxxxx
|
|
00
Xxxxx Xxxxxxxx Xxxxx
|
|
|
Xxxxxxxx,
XX 00000
|
13
Any
notice mailed in accordance with the terms hereof shall be deemed received
on
the third day following the date of mailing. Either party may change the address
to which notices to such party may be given hereunder by serving a proper notice
of such change of address to the other party.
15. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior written or oral
negotiations, representations, agreements, commitments, contracts or
understandings with respect thereto and no modification, alteration or amendment
to this Agreement may be made unless the same shall be in writing and signed
by
both of the parties hereto.
16. Waivers.
No
failure by either party to exercise any of such party's rights hereunder or
to
insist upon strict compliance with respect to any obligation hereunder, and
no
custom or practice of the parties at variance with the terms hereof, shall
constitute a waiver by either party to demand exact compliance with the terms
hereof. Waiver by either party of any particular default by the other party
shall not affect or impair such party's rights in respect to any subsequent
default of the same or a different nature, nor shall any delay or omission
of
either party to exercise any rights arising from any default by the other party
affect or impair such party's rights as to such default or any subsequent
default.
17. Governing
Law; Jurisdiction.
17.1 For
purposes of construction, interpretation and enforcement, this Agreement shall
be deemed to have been entered into under the laws of the State of Missouri
and
its validity, effect, performance, interpretation, construction and enforcement
shall be governed by and subject to the laws of the State of
Missouri.
17.2 Any
and
all suits for any and every breach of this Agreement may be instituted and
maintained in any court of competent jurisdiction in the State of Missouri
and
the parties hereto consent to the jurisdiction and venue in such court and
the
service of process by certified mail to the addresses for the parties provided
for notices herein.
[THE
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
14
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the day and year first above
written.
RELIV
INTERNATIONAL, INC.
By:
/s/
Xxxxxx X.
Xxxxxxxxxx
Authorized Officer
Attest:
/s/
Xxxxxxx X.
Xxxxxxx
Secretary
EXECUTIVE:
/s/
Xxxx X.
Xxxxxxxx
Xxxx
X.
Xxxxxxxx
15
|
SCHEDULE
A
|
|||||||
|
Xxxx
X. Xxxxxxxx
|
|||||||
|
|
|
Comments
|
|
Monthly
|
|
Annual
|
|
|
Base
Salary
|
|
Per
Contract
|
|
$30,000
|
|
$360,000
|
|
|
|
|
|
|
|
|
||
|
Incentive
Compensation*
|
|
Pool
1 - 6%
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Health
and Dental Insurance
|
(1)
|
Standard
Company Plan
|
|
$473.48
|
|
$5,681.76
|
|
|
|
|
|
|
|
|
||
|
Life
Insurance Allowance
|
|
Face
Value $2,000,000
|
|
|
|
|
|
|
|
Actual
Premium
|
|
|
|
$12,589
|
||
|
|
|
|
|
|
|
||
|
Life
Insurance-$10,000 in coverage
|
|
Standard
Company Plan
|
|
|
|
$187
|
|
|
|
|
|
|
|
|
||
|
Long
and Short Term
|
|
|
|
|
|
||
|
Disability
Insurance
|
|
Standard
Company Plan
|
|
|
|
$2,379
|
|
|
|
|
|
|
|
|
||
|
Supplemental
Disability-Equitable
|
|
Actual
Premium
|
|
|
|
$4,491
|
|
|
Policy
# 229571332503
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Vacation
(Days)
|
|
20
Days
|
|
|
|
$27,692
|
|
|
|
|
|
|
|
|
||
|
401(k)
Matching Contribution*
|
|
Standard
Company Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
ESOP
Contribution*
|
|
Standard
Company Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
Automobile
Allowance
|
|
Per
Contract
|
|
$800
|
|
$9,600
|
|
|
|
|
|
|
|
|
||
|
Total
|
|
|
|
|
|
$422,620
|
|
|
*Estimated
value will be adjusted to actual at end of each calendar
year
|
|||||||
|
(1)
Monthly amount represents net Company contribution after employee
contribution.
|
|||||||
16
