EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) made and entered into on this ___day of January 2010 (the
"Effective Date"), by and between Vystar Corporation, a Georgia corporation,
with the principal address of 0000 Xxxxxxxxx Xxxx., Xxxx, 000, Xxxxx 000,
Xxxxxx, XX 00000 (the "Company"), and Xxxxxxx Xxxxx, a resident of the State of
Georgia with an address of 0000 Xxxxxx Xxxx Xxx, Xxxxxx, XX 00000
("Employee").
In consideration of the employment by
the Company and of the compensation and other remuneration paid, and to be paid,
by the Company and received by Employee for such employment, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by Employee, it is agreed by and between the parties hereto as
follows:
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1.
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Definitions. For
purposes of this Agreement, the following terms shall have the meanings
specified below:
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"Business" – the research, development,
manufacturing, marketing, sales, distribution, offering and licensing of
products and services related to low-protein natural rubber latex raw materials
and products offered by the Company as of the Effective Date and as may be
offered by Company during the term of this Agreement.
“Competitor” – means any Person (as
defined herein) offering products or services in competition with Company or any
of its subsidiaries, specifically any Person offering or involved in the
research, development, manufacturing, marketing, processing, licensing, selling
and/or distribution of any low-protein natural rubber latex raw material or
product.
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"Confidential
Information" - information relating
to the operations, customers, or finances of the Company, or the Business,
that derives value from not being generally known to other Persons,
including, but not limited to, technical or nontechnical data, formulas,
patterns, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, and lists of or identifying information about
actual or potential customers or suppliers, including all customer lists,
whether or not reduced to writing, certain patented and unpatented
information relating to the research and development, manufacture or
serving of the Company's products, information concerning proposed new
products, market feasibility studies and proposed or existing marketing
techniques or plans, and all information defined as a “Trade Secret”
pursuant to the Georgia Trade Secrets Act or otherwise by Georgia
law. Confidential Information also includes the same types of
information relating to the operations, customers, finances, or Business
of any affiliate of the Company, if such information is learned by
Employee during the term of this Agreement or in connection with
Employee's performance of Services. Confidential
Information also includes information disclosed to the Company by third
parties that the Company is obligated to maintain as
confidential. Confidential Information may include
information that is not a Trade Secret, but Confidential Information
that is not also a Trade Secret shall constitute Confidential Information
only for five (5) years after the Termination
Date. Confidential Information does not include information
generally available to the public through no violation of a
confidentiality or non-disclosure obligation owed to
Company;
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"Customer" - any customer of the
Company in the Territory that Employee, during the term of this Agreement,
(i) provided goods or services to or solicited on behalf of the Company;
or (ii) about whom Employee possesses Confidential
Information;
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"Person" - any individual,
corporation, partnership, limited liability company, association,
municipality, government agency, government, unincorporated
organization or other entity;
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"Services" - the duties and
functions that Employee shall provide in the Territory as an employee of
the Company and as further outlined on Exhibit
B;
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"Termination
Date" - the
last day Employee is employed by the Company, whether the termination
is voluntary or involuntary and whether with or without
cause;
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“Territory”
– shall be the geographic region in which Employee initially and/or at anytime
throughout the term of this Agreement provides the
Services. Territory shall be more fully described in Exhibit B along
with Employee’s description of Services.
2. Employment: The
Company agrees to employ Employee and Employee agrees that Employee will devote
Employee’s full productive time, skill, energy, knowledge and best efforts
during the period of Employee’s employment to such duties as the Board of
Directors of the Company and/or the Employee’s Direct Supervisor (as identified
in Section 5 below) may reasonably assign to Employee, and Employee will
faithfully and diligently endeavor to the best of Employee’s ability to further
the best interest of the Company during the period of Employee’s
employment. However, Employee is not prohibited from making personal
investments in any other businesses, as long as those investments do not require
Employee to participate in the operation of the companies in which Employee
invests and such other businesses are not in competition with the Company or any
of its subsidiaries (“Competitor”). Employee may invest in any
publicly traded company registered on a bona fide stock exchange without
reservation.
3. Terms of
Employment: Employee's employment has been ongoing with
Company since January 2004, but will now be pursuant to this Agreement beginning
on the Effective Date first written above as consideration for Employee’s new
title and role with Company, and will continue unless one party gives the other
party of such intent to not renew ninety (90) days prior to each annual
anniversary date, unless earlier terminated in accordance with Section 9
herein.
4. Compensation: On
the terms and subject to the conditions of this Agreement, (i) the Company will
pay Employee a salary and a bonus determined in accordance with Schedule A, (ii)
Employee will be entitled to participate in the Company’s Employee Stock Option
Plan as may be in effect from time to time, and (iii) the Company will provide
Employee with employee benefits consistent with those provided by the Company to
similarly situated executives. The Company’s Employee Stock Option
Plan will be distributed to Employee. The employee benefits provided
by the Company as of the date hereof shall also be distributed to
Employee. The Company reserves the sole and unilateral right to
modify any and all employee benefits at any time in its sole
discretion.
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5. Title,
Duties and Conduct of Employee: The Employee’s initial title
shall be Vice President of Technical Services & Sales, and shall report to
Xxxxxxx X. Xxxxx, President & CEO, as Employee’s Direct
Supervisor. Employee shall perform such duties and functions for the
Company as shall be specified from time to time by the Chairman or Board of
Directors of the Company, and/or the Employee’s Direct Supervisor, including,
but not limited to the duties and functions expressly set forth on Schedule B,
and which are consistent with Employee's duties set forth on Schedule B
(“Services”).
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a.
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Disparagement. Employee
shall not at any time make false, misleading or disparaging statements
about the Company, including the Business, management, employees and/or
Customers.
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b.
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Prior
Agreements. Employee represents and warrants that
Employee is not under any obligation, contractual or otherwise, limiting,
impairing or affecting Employee's performance of Services. Upon
execution of this Agreement, Employee shall give the Company any agreement
with a prior employer or other Person purporting to limit or affect, in
any way, Employee's ability to work for the Company, to solicit customers
or potential customers or employees or to use any type of
information.
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c.
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Confidential
Information. Employee shall protect Confidential
Information. Except as required in connection with work for the
Company, Employee will not use, disclose or give to others, during or
after Employee's employment, any Confidential
Information.
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d.
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Compliance with Company
Policies and Laws. At all times while performing
Services, Employee shall comply with all laws and regulations applicable
to Employee and/or Company. Employee shall at all times comply
with all Company policies and procedures. Failure to comply
with this Section shall be grounds for Termination For Cause, as described
in Section 10 Term and
Termination.
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6. Paid Time
Off, Illness or Incapacity: Employee is entitled to vacation
paid time off and absence from Employee’s duties during regular work hours for a
total of three (3) weeks each calendar year. Employee shall be
entitled to paid time off for sick leave pursuant to Company
policy. If Employee cannot perform his/her duties because of major
illness or incapacity for more than a total of ninety (90) days in any year, the
Company may terminate this Agreement upon thirty (30) days' written notice to
Employee. Employee is not entitled to receive, and the Company shall
not be required to pay, Employee's compensation hereunder for absences because
of major illness or incapacity other than the total of ninety (90) days in each
year granted to Employee under this Section 6.
7. Termination
of Agreement Upon Sale or Termination of Company's Business:
a. Notwithstanding
anything to the contrary contained in this Agreement, the Company may terminate
Employee's employment upon thirty (30) days' written notice to Employee upon the
occurrence of any of the following events:
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(1) The
acquisition, directly or indirectly, of any "person" (excluding any
"person" who on the date hereof owns or controls ten percent (10%) or more
of the voting power of the Company's common stock), as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, within any twelve (12) month period of securities of the Company
representing an aggregate of fifty percent (50%) or more of the combined
voting power of the Company's then outstanding securities; provided, that
for purposes of this Paragraph (a), "acquisition" shall not include shares
which are received by a person through gift, inheritance, under a will or
otherwise through the laws of descent and distribution;
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(2)
During any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company
(the "Board"), cease for any reason to constitute at least a majority
thereof, unless the election of each new director was approved in advance
by a vote of at least a majority of the directors then still in office who
were directors at the beginning of such period;
or
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(3) The
occurrence of any other event or circumstance which is not covered by (1)
or (2) above which the Board determines affects control of the Company
and, in order to implement the purposes of this Agreement, adopts a
resolution that such event or circumstance constitutes an “event” under
this Paragraph 7.
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b. If
the Company terminates Employee pursuant to Paragraph 7(a), Company will, for
the Severance Period (as defined in Paragraph 10(c)), pay Employee her then
current salary and provide Employee with Group Health Insurance, but
Company shall not be required to pay any other compensation or provide any other
benefits.
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a. Work For
Hire Acknowledgment; Assignment. All writings,
drawings, plans, programs, strategies, customer lists, business
methodologies, photographs, tapes, recordings, computer programs and other
works in any tangible medium of expression, regardless of the form of
medium, which have been or are prepared by Employee, or to which Employee
contributes, in connection with Employee's employment by the Company,
whether patented, copyrighted, trademarked or otherwise (collectively the
"Works") and all copyrights, patents, trademarks and other rights in and
to the Works, belong solely, irrevocably and exclusively throughout the
world to the Company as works made for hire. However, to the
extent any court or agency should conclude that the Works (or any of them)
do not constitute or qualify as a "work made for hire," Employee hereby
assigns, grants and delivers, solely, irrevocably, exclusively and
throughout the world to the Company all ownership and other rights to the
Works. Employee also agrees to cooperate with the Company and
to execute such other further grants and assignments of all rights as the
Company from time to time reasonably may request for the purpose of
evidencing, enforcing, filing, registering or defending its ownership of
the Works and the copyrights in them, and Employee hereby irrevocably
constitutes and appoints the Company as Employee's agent and
attorney-in-fact, with full power of substitution, in Employee's
name, place and stead, to execute and deliver any and all such assignments
or other instruments which Employee shall fail or refuse promptly to
execute and deliver, this power and agency being coupled with an interest
and being irrevocable. Without limiting the preceding provisions of
this Paragraph 8(a), Employee agrees that the Company may edit and
otherwise modify, and use, publish and otherwise exploit, the Works in all
media and in such manner as the Company, in its discretion, may
determine.
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b. Inventions,
Ideas and Patents. Employee shall disclose promptly to
the Company (which shall receive it in confidence), and only to the
Company, any invention or idea of Employee (developed alone or with
others) conceived or made during Employee's employment by the Company (or,
if related to the Business, during employment or within one year after the
Termination Date). Employee assigns to the Company any such
invention or idea in any way connected with Employee's employment or
related to the Business, research or development of the Company, or
demonstrably anticipated research or development of the Company, and will
cooperate with the Company and sign all papers deemed necessary by the
Company to enable it to obtain, maintain, protect and defend patents
covering such inventions and ideas and to confirm the exclusive ownership
of the Company of all rights in such inventions, ideas and patents, and
irrevocably appoints the Company as its agent to execute and deliver
any assignments or documents Employee fails or refuses to execute and
deliver promptly, this power and agency being coupled with an interest and
being irrevocable. This constitutes written notification to
Employee that this assignment does not apply to an invention for which no
equipment, supplies, facility or Trade Secret information of the Company
or any Customer was used and which was developed entirely on Employee's
own time, unless (a) the invention relates (i) directly to the Business or
(ii) to the actual or demonstrably anticipated research or
development of the Company, or (b) the invention results from any
work performed by Employee for the Company.
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a.
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Non-Solicitation of
Customers. During the term of this Agreement, and for
one (1) year after the Termination Date, Employee will not solicit
Customers within the Territory for the purpose of providing products or
services comparable to those provided by the Business, except on behalf of
the Company.
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b.
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Non-Solicitation of Company
Employees. During the term of this Agreement and for one
(1) year after the Termination Date, Employee will not solicit for
employment with another Person anyone who is an employee of the
Company.
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c.
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Non-Compete. During
the term of this Agreement and for one (1) year after the Termination
Date, Employee will not provide services substantially similar to Services
within the Territory to any Competitor. Employee shall be
prohibited from providing in the Territory in competition with the Company
in accordance with the terms of this Agreement, including the Services
expressly set forth on Schedule B attached hereto. Employee
acknowledges that Employee has been informed of and discussed with the
Company the specific activities that Employee will perform as Services and
that Employee understands the scope of the activities that constitute
Services and the Territory under this
Agreement.
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d.
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Future Employment
Opportunities. Prior to and for one (1) year after the
Termination Date, Employee shall (a) provide any employer or prospective
employer with a copy of these non-compete and non-solicitation terms, and
(b) upon accepting any other position, provide the Company with the new
employer's name and a description of the services, if any, Employee will
provide for such employer.
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10. Termination. At all times,
Employee’s employment shall be subject to “employment at will”. This
Agreement and the employment of Employee may be terminated as
follows:
a. Without
Cause. Either party may terminate this Agreement upon
thirty (30) days notice to the other party.
b. For
Cause.
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(1) By the
Company (i) pursuant to Paragraphs 6 or 7, (ii) upon conviction
of the Employee of any felony or material misdemeanor under federal, state
or local laws or ordinances, except traffic violations (iii) upon the
failure of Employee to diligently or competently discharge the duties
assigned to him pursuant to this Agreement;
or
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(2) (i) By
Employee upon thirty (30) days' written notice to the Company for any
breach of this Agreement by Company and failure to cure within that thirty
(30) day notice period; or
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(3) By the
Company upon any breach by Employee of any of the terms and conditions of
this Agreement or the breach by Employee of any representation or warranty
made to the Company herein or in any other agreement, document or
instrument executed by Employee and delivered to the Company, or should
any representation or warranty made by Employee hereunder or thereunder
prove to have been false or misleading in any material respect when made
or furnished; or
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c. Effect of
Termination.
(1) In
the event Employee is terminated by the Company without cause the Company shall
(i) pay Employee his then current salary and provide Employee with Group Health
Insurance, but no other compensation or benefits for three (3) months
(“Severance Period”) beginning with the date of termination (“Severance
Payment”) without any other obligation by Company. If Employee is
terminated for cause or Employee terminates this Agreement without
cause, Employee shall be entitled only to compensation accrued
through the date of Termination and all benefits accrued as of such date, and
shall not be entitled to any Severance Payment described herein, but shall
remain obligated to the Non-Compete and Non-Severance obligations.
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(2) Return of
Materials. On the Termination Date or for any reason or at any
time at the Company's request, Employee will deliver promptly to the Company all
materials, documents, plans, records, notes, manuals, subcontracts, procedures,
customer lists, and any other papers and any copies thereof in Employee's
possession, custody or control relating to the Company or the Business, whether
defined as Confidential Information, Trade Secret or otherwise, all of which at
all times shall be the property of the Company.
11.
Miscellaneous.
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a. Assignability.
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(1)
This Agreement may be assigned by the Company to any successor in interest to
its business, which successor in interest shall be bound herein to the same
extent as the Company. Employee agrees to perform his duties for such
successor in interest to the same extent as for the Company.
(2) This
is a personal agreement on the part of Employee and may not be sold, assigned,
transferred or conveyed by Employee.
b. No
Waiver. The waiver by
either party of a breach of any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any subsequent breach by the
other party.
c. Governing
Law and Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Georgia. Any cause of action shall be filed in and the parties agree
to subject themselves to the jurisdiction of any State or Federal court of
competent jurisdiction located in Atlanta, Georgia.
d. Entire
Agreement. This Agreement,
together with the Employee confidential Information, Copyright and Invention
Assignment Agreement, attached hereto as Exhibit C, states the entire agreement
and understanding between the parties and supersedes all prior understandings
and agreements.
e. No
Modification. No change or
modification to this Agreement shall be valid unless in writing and signed by
both parties hereto.
f. Independence
of Covenants. The covenants
contained herein shall be construed as agreements independent of each other and
of any other provision of this or any other contract between the parties hereto,
and the existence of any claim or cause of action by Employee against the
Company, whether predicated upon this or any other contract, shall not
constitute a defense to the enforcement by the Company of said
covenants.
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g. Right to
Injunctive Relief. Employee
recognizes and agrees that the injury the Company will suffer in the event of
the Employee's breach of any covenant or agreement contained herein cannot be
compensated by monetary damages alone, and Employee therefore agrees that the
Company, in addition and without limiting any other remedies or rights that it
may have, either under his Agreement or otherwise, shall have the right to
obtain an injunction against Employee from any court of competent jurisdiction
enjoining any such breach without having to show or prove damages or
injury.
h. Jury
Trial Waiver. Both parties
hereby waive their right to a trial by jury in the event of any dispute or cause
of action regarding this Agreement.
IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the day and year first above
written.
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VYSTAR
CORPORATION
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By:
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Name:
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Xxxxxxx
X.
Xxxxx
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Title:
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President
&
CEO
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EMPLOYEE:
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Name:
Xxxxxxx Xxxxx
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Schedule A - Salary and
Bonus
Annual
Salary. $85,000
Salary. Company
shall pay Employee an Annual Salary of $85,000.* The Annual Salary
shall be payable bi-weekly according to the Company’s established payroll
periods.
Bonus. By the
end of the first three (3) months of Employee’s employment, Employee and his
Direct Supervisor will identify a set of Sales Targets and Objectives on which
Employee’s performance will be based. Such Sales Targets and
Objectives shall contain a bonus structure that may be made available to
Employee depending upon the Company and Employee performance, at Company’s
complete and sole discretion. Such bonus structure may include or
consist of payments in Company stock options and may alter the base and/or
commission compensation described herein.
Commission. In
addition to the Salary and any Bonus earned by Employee, Employee shall receive
Commission payments of five percent (5%) of the gross profit earned by Company,
less any refunds or credits Company extends, for all sales of Company product
made in that month (“Total Raw Material Revenue”) and/or for all licensing sales
and/or royalty payments received by Company for the use of Company’s technology
by another manufacturer (“Total License Revenue”).
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Schedule B - Duties and
Functions (“Services”)
Employee
shall be responsible for implementing and overseeing, including all budgetary
and revenue responsibility, for Company sales activities and initiatives in his
Territory. This shall include entering all leads and activities into
Company’s customer relations management software and strong cooperation with
existing staff, independent representatives and Company distributors and
toll-manufacturers. Employee shall work all pricing through Company’s
distributors and processors. The Territory for Employee’s scope of Services
responsibility shall be determined and more clearly defined in conjunction with
other sales personnel and otherwise as assigned by the CEO.
Employee
shall also be responsible for and/or overseeing all technical services and
technical aspects of uses and trials of the Company’s products and for R&D
initiatives. This shall include overseeing product development,
enhancement and outside contractors assisting in these activities.
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Schedule
C
Employee Confidential
Information, Copyright and Invention Assignment Agreement
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