EXHIBIT 10.31
Employment Agreement
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This Employment Agreement (the "Agreement") is made effective the 17th day of
November, 1999 by and between Nutrition For Life International, Inc., a Texas
corporation (the "Company") and Xxxxx X. Xxxxx ("Xxxxx").
In consideration of the mutual covenants, promises and agreements herein
contained, the Company and Xxxxx hereby covenant, promise and agree to and with
each other as follows:
1. Employment. The Company shall employ Xxxxx and Xxxxx shall be employed by
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the Company upon the terms and conditions set forth in this Agreement.
2. Positions and Duties of Employment. Xxxxx shall be required to devote his
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best efforts to the furtherance of his managerial duties with the Company as the
Company's Vice President of Corporate Development. Xxxxx agrees to devote such
time to the business of the Company as is necessary to competently perform his
duties as an officer of the Company. While serving in these corporate
capacities, Xxxxx shall have the responsibilities, duties, obligations, rights,
benefits and requisite authority as is customary for his positions and as may be
determined by the Company's Board of Directors (the "Board") and as set forth in
the Bylaws of the Company.
Xxxxx understands that his employment as Vice President of Corporate
Development of the Company involves a high degree of trust and confidence, that
he is employed for the purpose of furthering the Company's reputation and
improving the Company's operations and profitability, and that in executing this
Agreement he undertakes obligations set forth herein to accomplish such
objectives. Xxxxx agrees that he shall serve the Company fully, diligently and
competently, and to the best of his ability. Xxxxx certifies that he fully
understands his right to discuss this Agreement with his private attorney, that
to the extent, if any, he desires, he has availed herself of this right, that he
has carefully read and fully understands this entire Agreement, and that he is
voluntarily entering into this Agreement.
3. Term. Except as otherwise provided in this Agreement, the term of this
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Agreement (the "Term") shall be for a period of one year commencing on the
effective date of this Agreement and shall terminate one year thereafter.
4. Compensation. Xxxxx shall receive the following as compensation:
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(a) Xxxxx shall receive a monthly salary of $8,333 for each full month
of his employment by the Company pursuant to this Agreement, payable in
accordance with the Company's customary payroll practices.
(b) In addition to his base salary, Xxxxx shall be entitled to a
performance bonus at the discretion of the Board.
(c) The Company shall provide Xxxxx with participation in any group
plans or agreements maintained by the Company relating to health insurance or
other related benefits in accordance with their respective terms.
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(d) Xxxxx shall be entitled to leaves for vacations for periods
reasonably determined by the Board. In addition, Xxxxx shall be entitled to
reasonable absences for attendance at business seminars and conventions.
(e) Any payment which the Company shall make to Xxxxx pursuant to this
Agreement shall be reduced by standard withholding and other authorized
deductions.
(f) During the term of his employment, Xxxxx shall be reimbursed for
reasonable expenses incurred by his for the benefit of the Company. Any direct
payment or reimbursement of expenses shall be made only upon presentation of an
itemized accounting conforming in form and content to standards prescribed by
the Internal Revenue Service relative to the substantiation of the deductibility
of business expenses.
5. Life Insurance. The Company may, but shall not be obligated to, apply for
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and procure as owner and for its own benefit or the benefit of any lender of the
Company, insurance on Xxxxx'x life, in any amount and form or forms that the
Company may choose. Xxxxx shall, at the Company's request, submit to all
medical examinations, supply all information and execute all documents required
by the insurance company or companies to whom the Company has applied for the
insurance.
6. Corporate Data and Antisolicitation. Upon the termination of Xxxxx'x
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employment under this Agreement for any reason, Xxxxx shall return to the
Company all data and information, whether written, computer, magnetic,
electronic or in any other physical or tangible form, relating to the business
of the Company or any of its affiliates that Xxxxx obtained during the time of
his employment. During the term of this Agreement or for a period of one year
thereafter, Xxxxx shall neither disclose to any other person or entity, nor use
for his own personal benefit, any information obtained during his employment by
the Company that is not otherwise publicly known, relating to the financial
affairs, distributor lists or the business operations of the Company or any of
its subsidiaries or affiliates. During the term of this Agreement or for a
period of one year thereafter, Xxxxx will not influence or attempt to influence
distributors of the Company or any of its present or future subsidiaries or
affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition
with the business of the Company or any subsidiary or affiliate of the Company,
nor will he solicit any of the Company's employees who earned annually $25,000
or more as a Company employee during the last six months of his or his own
employment to work for any individual, partnership, firm, corporation or other
entity then in competition with the business of the Company or any subsidiary or
affiliate of the Company.
7. Termination.
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(a) The Company shall have the right at any time to terminate Xxxxx'x
employment under this Agreement without further liability or obligation pursuant
to this Agreement upon the occurrence of any of the following events:
(i) By mutual written agreement, signed by both parties; or
(ii) The death of Xxxxx; or
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(iii) If the Company determines in good faith that the Disability of
Xxxxx has occurred (pursuant to the definition of Disability set forth
below), it may give to Xxxxx written notice in accordance with Section
13 of its intention to terminate Xxxxx'x employment. In such event,
Xxxxx'x employment with the Company shall terminate effective upon
receipt of such notice by Xxxxx, provided that, upon receipt, Xxxxx
shall not have returned to full-time performance of his duties. For
purposes of this Agreement, "Disability" shall mean a physical or
mental impairment which substantially limits a major life activity of
Xxxxx which renders Xxxxx unable to perform the essential functions of
his position, even with reasonable accommodation which does not impose
an undue hardship on the Company. The Company reserves the right, in
good faith, to make the determination of Disability under this
Agreement based upon information supplied by Xxxxx and/or his medical
personnel as well as information from medical personnel (or others)
selected by the Company or its insurers; or
(iv) Xxxxx is convicted of any crime constituting a felony under the
law of the United States or any State; or
(v) A "Material Breach" of this Agreement as determined by the
Board. The exercise of the right of the Company to terminate this
Agreement shall not abrogate the rights and remedies of the Company in
respect of the breach giving rise to such termination. For purposes of
this subsection, "Material Breach" shall mean that the Company, acting
in good faith based upon the information then known to the Company,
determines that Xxxxx has engaged or committed: willful misconduct;
gross negligence; theft, fraud or other illegal conduct; refusal or
unwillingness to perform his duties; sexual harassment; violation of
any fiduciary duties; violation of any duty of loyalty; or a material
breach of any term of this Agreement. The "Material Breach" shall be
specified in a notice of termination to be delivered by the Company no
later than the date as of which the termination is effective.
(b) If Xxxxx'x employment is terminated by the Company for any
reason other than those set forth in sections 7(a)(i) through 7(a)(v) above,
then the Company shall pay "Termination Pay" to Xxxxx in full settlement of any
and all claims of Xxxxx arising out of or in connection with his employment by
the Company which shall be evidenced by a general release and waiver of claims
against the Company and its affiliates in a form reasonably acceptable to the
Company executed by Xxxxx. The "Termination Pay" shall consist of one and one-
half months' salary, which shall be paid in two installments, with the first
installment of $8,333 to be paid on the first day of the month after the month
in which termination occurred and the second and final installment of $4,167 to
be paid on the first day of the second month after the month in which
termination occurred. Such payments shall be made in accordance with the
Company's customary payroll practices and shall be subject to applicable
withholding and payroll deductions.
(c) If during the term of this Agreement, the Company effects a
merger or acquisition in which it is not the surviving entity or is a party to a
stock exchange or other form of corporate reorganization in which it becomes a
wholly-owned subsidiary of another entity (unless such
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entity is a holding company and the shareholders of the Company have approved
the reorganization) and Xxxxx'x employment is thereafter terminated by the
Company notwithstanding that no "Material Breach" has occurred, then Xxxxx shall
be entitled to "Termination Pay."
(d) For purposes of this Section 7, voluntary termination of
employment by Xxxxx as a result of a material change by the Company in Xxxxx'x
job responsibilities shall be deemed to be termination by the Company without a
"Material Breach" and Xxxxx shall be entitled to "Termination Pay".
(e) Xxxxx shall have the right to terminate this Agreement in the
event of a default by the Company of any material provision of this Agreement
but only if Xxxxx shall have first given written notice of the default to the
Company and if within thirty days after receipt of that notice the Company has
not cured that default. Upon termination neither Xxxxx nor the Company shall
have any further obligations under any of the provisions of this Agreement
except that Xxxxx shall be entitled to "Termination Pay".
(f) Xxxxx agrees that the payments contemplated by this Agreement
shall constitute the exclusive and sole remedy for any termination of his
employment and Xxxxx covenants not to assert or pursue any other remedies, at
law or in equity, with respect to any termination of employment.
8. Remedies. If there is a breach or threatened breach of the
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provisions of Section 2 or 6 of this Agreement, the Company shall be entitled to
an injunction restraining Xxxxx from such breach. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies for such
breach or threatened breach.
9. Severability. It is the clear intention of the parties to this
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Agreement that no term, provision or clause of this Agreement shall be deemed to
be invalid, illegal or unenforceable in any respect, unless such term, provision
or clause cannot be otherwise construed, interpreted, or modified to give effect
to the intent of the parties and to be valid, legal or enforceable. In the event
that such a term, provision, or clause cannot be so construed, interpreted or
modified, the validity, legality and enforceability of the remaining provisions
contained herein and other application(s) thereof shall not in any way be
affected or impaired thereby and shall remain in full force and effect.
10. Waiver of Breach. The waiver by the Company or Xxxxx of the breach of
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any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by that party.
11. Entire Agreement. This document contains the entire agreement between
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the parties, supersedes all prior oral agreements, if any, and may not be
changed orally, but only by agreement in writing signed by the parties.
12. Governing Law. This Agreement, its validity, interpretation and
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enforcement, shall be governed by the laws of the State of Texas.
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13. Notices. Any notice pursuant to this Agreement shall be validly
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given or served if that notice is made in writing and delivered personally or
sent by certified mail, return receipt requested, postage prepaid, to the
following addresses:
If to Company: Nutrition For Life International, Inc.
0000 Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxx: To the address for Xxxxx set forth below his signature.
All notices so given shall be deemed effective upon receipt. Either party, by
notice so given, may change the address to which his or its future notices shall
be sent.
14. Assignment and Binding Effect.
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(a) This Agreement shall be binding upon Xxxxx and the Company and
shall benefit the Company and its successors and assigns.
(b) This Agreement shall not be assignable by Xxxxx.
15. Headings. The headings in this Agreement are for convenience only;
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they form no part of this Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
NUTRITION FOR LIFE INTERNATIONAL, INC.
By:_______________________________
Authorized Officer
__________________________________
Xxxxx X. Xxxxx, Individually
Address for Notice:
2912 Lafayette
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(Street Address)
Xxxxxxx, Xxxxx 00000
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(City, State and Zip Code)
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