EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) made and entered into on this 8th day
of April 2010 (the "Effective Date"), by and between Vystar Corporation, a
Georgia corporation (the "Company"), and Xxxx Xxxxxxxxx, a resident of the State
of Georgia ("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 and offering 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.
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“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, 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.
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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 will begin on the Effective
Date 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. Notwithstanding, the
foregoing, the first 120 days of Employee’s employment shall be a probationary
period during which Company may terminate Employee without cause and without the
obligation of the Severance Payment, as described in Section 10.c. Effect of
Termination (“Probationary Period”). Termination of this Agreement
during the Probationary Period shall be effective upon written notice to
Employee. At Company’s election, in the event of Company’s
termination of Employee without cause during the Probationary Period, Company
may elect to activate the Noncompete provisions. In the event of
Company’s termination of Employee for cause, whether in the Probationary Period
or otherwise, Employee shall be obligated to comply with the Noncompete
covenants.
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 Exhibit 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 Chief Financial Officer, 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 Exhibit B, and which are consistent with
Employee's duties set forth on Exhibit B (“Services”).
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a. 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. 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. 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. 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 four (4) 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.
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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:
(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;
(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
(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.
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.
8. Ownership of
Information
a. Work For Hire
Acknowledgment; Assignment. All writings, drawings,
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.
9. Nonsolicitation;
Noncompetition.
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a. 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. 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. 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. Future
Employment Opportunities. Prior to and for one (1) year
after the Termination Date, Employee shall (a) provide any employer with a
copy of this Agreement, and (b) upon accepting any position, provide the
Company with the 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:
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a. Without
Cause. Either party may terminate this Agreement
upon thirty (30) days notice to the other party.
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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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(4) By
the Company upon the death of
Employee.
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c. Effect of
Termination.
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(1) In
the event Employee is terminated by the Company without cause (other than
during the Probationary Period pursuant to Paragraph 3) and if after the
first year of Employee’s employment with the Company, 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”). 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.
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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.
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(2)
This is a personal agreement on the part of Employee and may not be sold,
assigned, transferred or conveyed by Employee.
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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.
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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.
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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.
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e. No Modification. No change
or modification to this Agreement shall be valid unless in writing and
signed by both parties hereto.
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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.
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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.
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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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_____________________________ | |
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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:
Xxxx X. Xxxxxxxxx
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Exhibit
A - Salary and
Bonus
Annual
Salary. $125,000
Salary. Company
shall pay Employee a Yearly Salary of $125,000. The Annual Salary shall be
payable bi-weekly according to the Company’s established payroll
periods. At the six (6) month anniversary of the Effective Date,
Employee’s Direct Supervisor shall review Employee’s performance and determine
whether any increase in salary is warranted. Such increase shall be
at the sole discretion of the Supervisor.
Bonus. Employee
shall be eligible for participation in a Company bonus plan as adopted by
Company for key management. Any such bonus shall be at the exclusive
discretion of Company and Employee’s Direct Supervisor.
Stock Option
Grant. Employee shall be granted 200,000 stock options at the
then-current publicly traded price on the date of grant. Such stock
option grant shall be pursuant to Company’s current 2004 Long-Term Incentive
Compensation Plan, which shall vest according to the following
schedule:
50,000 vesting upon the expiration of
the Probationary Period.
50,000 vesting each of the next 3 years
upon the anniversary date of the execution of the Stock Option
Agreement.
Employee
may be awarded additional option grants at the Company’s and/or her Supervisor’s
sole discretion. In all cases, the execution of a Stock Option
Agreement shall be required in order to effect any such grant.
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Schedule B - Duties and
Functions (“Services”)
Employee
shall be responsible for all financial aspects of the Company in terms of
projections, budgets, inventory, investments, public company filings and related
activities and such other duties as may be assigned by Employee’s Direct
Supervisor and/or the Board of Directors of Company.
The
Territory for Employee’s scope of Services responsibility shall be
world-wide.
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Schedule
C
Employee Confidential
Information, Copyright and Invention Assignment Agreement
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