EMPLOYMENT AGREEMENT
Exhibit
10.4
This
EMPLOYMENT AGREEMENT (“Agreement”) is made as of March 30, 2007, by and between
Baywood International, Inc., a Nevada corporation (the “Company”), and Xxxxxx
Xxxxxxxxx, an individual residing at 0000 Xxxxx Xxxx Xxxxxxx Xxx Xxxxxxxx,
Xxxxxxxxxx 00000 (“Employee”).
W
I T N E S S E T H:
WHEREAS,
Baywood Acquisition, Inc., a Nevada corporation and a wholly-owned subsidiary
of
the Company (“Buyer”), intends to purchase certain assets of Nutritional
Specialties, Inc. d/b/a LifeTime® or LifeTime Vitamins®, a California
corporation (“LifeTime”), pursuant to an Asset Purchase Agreement, of even date
herewith, by and among the Company, Buyer, LifeTime and the LifeTime
Representatives defined therein, including Employee (the “Asset Purchase
Agreement”);
WHEREAS,
immediately prior to the closing of the transactions contemplated in the
Asset
Purchase Agreement (the “Closing”), Employee is employed as President of
LifeTime;
WHEREAS,
this Agreement is to be effective upon the Closing;
WHEREAS,
the Company wishes to ensure that it will continue to have the benefits of
Employee’s services after the Closing on the terms and conditions hereinafter
set forth; and
WHEREAS,
Employee desires to work for the Company on the terms and conditions hereinafter
set forth.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, the parties hereto hereby agree as follows:
1.
Employment; Term. The Company hereby
employs Employee, and Employee hereby accepts employment with the Company,
in
accordance with and subject to the terms and conditions set forth
herein. The term of employment shall commence upon the Closing and
shall continue for a period of five (5) years (the “Term”), unless earlier
terminated in accordance with Section 5 hereof.
2.
Employment.
(a) The
Company hereby agrees to employ Employee as a Vice President and as President
of
Buyer for the Term. Employee agrees to serve in such capacity and
shall have primary responsibility for the operation of the business formerly
conducted by LifeTime and such other duties, responsibilities and authority,
commensurate with such position as shall be assigned to him by the Board
of
Directors (the “Board”) or the Chief Executive Officer of the
Company.
(b) Employee
shall devote Employee’s full business time and attention to Employee’s duties on
the Company’s behalf.
3.
Compensation.
(a) The
Company shall pay Employee a base salary of Two Hundred Thousand Dollars
($200,000) per annum (the “Base Salary”), payable bi-weekly, in accordance with
the Company’s then existing payroll practices and subject to all legally
required or customary withholdings and other applicable
taxes. Executive shall be entitled to an increase in Base Salary of
five percent (5%) per annum upon meeting performance standards reasonably
established by the Board or otherwise based on performance as reasonably
determined by the Board.
(b) Employee
shall be entitled to receive an annual bonus award (“Annual Bonus”) based on the
achievement of established financial goals as set forth
below. Employee’s Annual Bonus shall equal four percent (4%) of the
net operating income of the Company for each fiscal year upon meeting
performance standards reasonably established by the Board or otherwise based
on
performance as reasonably determined by the Board, commencing fiscal year
2007.
Notwithstanding the foregoing, the minimum Annual Bonus for fiscal year 2007
shall be One Hundred Thousand Dollars ($100,000). Subject to the
terms of this Section 3(b), the Company shall have the right to offset against
Employee’s Annual Bonus Twenty Thousand Dollars ($20,000) per annum for each
year of the Term for a total amount of One Hundred Thousand Dollars ($100,000)
in order for the Company to reimburse LifeTime the total principal amount
payable under Employee’s Unsecured Promissory Note, dated December 10, 2004,
payable to LifeTime in the principal amount of $100,000 (the
“Note”). In the event this Agreement is terminated for any reason
prior to the end of the Term, Employee shall promptly pay the Company the
remaining principal balance of the Note. Employee’s Annual Bonus
shall be subject to review and approval each year by the Board.
(c) Upon
the Closing, the Company shall grant to Employee, pursuant to the Company’s 2004
Stock Option Plan (the “Plan”), options (the “Options”) to purchase five million
(5,000,000) shares of Common Stock, par value $0.001 per share, of the Company
(the “Common Stock”) at an exercise price equal to the Current Market Price (as
hereinafter defined) on the date of grant. The Options will vest as
to 20% on the date of grant and as to an additional 20% on each anniversary
date
of the date of grant. The Options will expire as to each vested
portion if not exercised within five (5) years after the date of
vesting. Subject to the foregoing, the terms and provision of the
Options shall be consistent with the Plan and all exhibits thereto.
For
purposes of this Agreement, “Current Market Price” on any day of determination
means the closing price of a share of Common Stock on the over-the-counter
bulletin board as reported by the National Quotation Bureau Incorporated,
or a
similar generally accepted reporting service, or if not so available, in
such
manner as furnished by any Nasdaq member firm of the National Association
of
Securities Dealers, Inc. selected from time to time by the Board for that
purpose, or if not so available, a price determined in good faith by the
Board
as being equal to the fair market value thereof, as the case may
be.
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(d) In
consideration of Employee’s agreements hereunder, the Company will issue and
deliver to Employee promptly after the execution hereof, pursuant to the
Plan, a
restricted stock grant of two million (2,000,000) shares of Common Stock
(the
“Restricted Shares”), on the following terms:
(i) The
restrictions on Employee’s ownership of the Restricted Shares shall lapse
on the following dates, provided Employee is an employee in good standing
on
each such date:
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400,000
shares
|
December
31, 2007
|
|
400,000
shares
|
December
31, 2008
|
|
400,000
shares
|
December
31, 2009
|
|
400,000
shares
|
December
31, 2010
|
|
400,000
shares
|
December
31, 2011;
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(ii) From
and after the date of issuance, but subject to the terms and
conditions set forth in the agreement relating to the grant of the Restricted
Shares, Employee shall have rights as a stockholder of the Company, including,
but not limited to, voting rights, the right to receive dividends and the
right
to participate in any capital adjustment applicable to all holders of Common
Stock (but not the right of an owner to sell or otherwise receive the value
of
the Restricted Shares); provided, however, that a distribution with
respect to shares of Common Stock, other than a distribution in cash, shall
be
deposited with the Company and shall be subject to the same restrictions
as the
shares of Common Stock with respect to which such distribution was made;
and
(iii) In
all other respects the Restricted Shares shall be subject to the restrictions,
terms and conditions of the Plan and the agreement relating to the grant
of the
Restricted Shares.
4.
Benefits.
(a) The
Company agrees to reimburse Employee for all reasonable out-of-pocket business
expenses incurred by Employee in the normal course of business in connection
with the performance of Employee’s duties under this Agreement in accordance
with the Company’s policy as it may be amended from time to time. The
Company shall make such reimbursements within a reasonable amount of time
after
submission by Employee of vouchers, receipts, credit card bills or other
documentation in accordance with the Company’s then applicable policies and
procedures. In addition, the Company shall pay Employee’s monthly
business-related cellular telephone xxxx and business-related home high-speed
Internet access xxxx.
(b) Employee
shall be entitled to participate in any and all medical insurance, group
health
care programs, disability insurance, pension and other benefit plans which
are
made generally available by the Company to other similarly situated senior
level
employees of the Company performing similar functions as
Employee. The Company, in its sole discretion, may at any time amend
or terminate its benefit plans or programs.
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(c) Employee
shall receive an automobile allowance of Nine Hundred Dollars ($900) per
month.
(d) The
Company shall maintain, at its expense, key man life insurance (the “Policy”) on
the life of Employee for the benefit of the Company with a benefit of Five
Million Dollars ($5,000,000). Employee’s signature to this Agreement
constitutes Employee’s written consent to being insured under the Policy and
that the Company may continue such life insurance coverage after Employee’s
employment with the Company terminates, regardless of the cause of such
termination. Employee shall make all necessary applications, submit
to physical examinations and otherwise cooperate with the Company with respect
to the purchase of the Policy.
(e) The
Company shall match Employee’s contributions, if any, made to the Company’s
401(k) plan, dollar for dollar, up to Ten Thousand Dollars ($10,000) per
annum.
(f) Employee
shall be entitled to three (3) weeks paid vacation per annum, at a time or
times
to be determined in consultation with the Chief Executive Officer of the
Company. Vacation not taken or used shall be deferred or paid in cash
to the extent, if at all, consistent with the Company’s employment polices in
effect from time to time.
(g) Employee
shall be entitled to such other benefits as are generally available to other
similarly situated senior level employees of the Company performing similar
functions as Employee.
5.
Termination. Employee’s
employment hereunder may be terminated under the following
circumstances:
(a) Death. Employee’s
employment hereunder shall terminate immediately upon Employee’s
death.
(b) Disability. The
Company may terminate Employee’s employment hereunder at any time after Employee
becomes “Disabled.” For purposes of this Agreement, Employee shall be
“Disabled” upon the earlier of (i) the date Employee becomes entitled to receive
disability benefits under the Company’s long-term disability plan or (ii)
Employee’s inability to perform the essential functions of the duties and
responsibilities contemplated under this Agreement for a period of more than
ninety (90) consecutive days or for more than one hundred twenty (120) days
in
any 270-day period due to physical or mental incapacity or impairment, as
determined in the reasonable judgment of a physician licensed in the State
of
California, selected by the Company. Such termination shall become
effective five (5) business days after the Company gives written notice of
such
termination to Employee or to his legal representative, in accordance with
Section 9 hereof.
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(c) Termination
by the Company without Cause. The Company may terminate
Employee’s employment hereunder without Cause (as hereinafter defined) at any
time after providing written notice to Employee.
(d) Termination
by the Company for Cause. The Company may terminate Employee’s
employment hereunder for Cause at any time after providing written notice
to
Employee, which notice shall provide in reasonable detail the reason(s) for
such
termination. For purposes of this Agreement, “Cause” shall mean any
of the following: (i) Employee’s willful or intentional failure or refusal to
perform or observe any of Employee’s significant duties, responsibilities or
obligations set forth in, or as contemplated under, this Agreement where
such
failure or refusal shall not have ceased or been remedied within thirty (30)
days following written warning from the Company, provided that such obligation
to provide written warning and the related right to cure shall not apply
to (x)
such matters as are not curable, or (y) repeated violations of this clause
(i);
(ii) acts or omissions by Employee involving Employee’s gross negligence related
to the discharge of Employee’s duties; (iii) any act or failure to act by
Employee constituting fraud or involving a knowing, willful or intentional
misrepresentation, theft, embezzlement, dishonesty or moral turpitude
(collectively, “Fraud”); (iv) conviction of (or a plea of
nolocontendere to) an offense which is a felony in the
jurisdiction involved or which is a misdemeanor in the jurisdiction involved
but
which involves Fraud; (v) any willful or intentional act or omission by Employee
which is intended to or which materially injures the reputation, business
or
business relationships of the Company, or Employee’s reputation or business
relationships; (vi) alcoholism, drug abuse or other substance abuse having
a
material adverse effect on the performance of Employee’s duties hereunder; or
(vii) Employee’s willful or intentional failure or refusal to comply with any
reasonable and lawful request or direction of the Company not contrary to
the
provisions of this Agreement, where such failure or refusal shall not have
ceased or been remedied within thirty (30) days following written warning
from
the Company, provided that such obligation to provide written warning and
the
related right to cure shall not apply to (x) such matters as are not curable,
or
(y) repeated violations of this clause (vii).
(e) Termination
by Employee for Good Reason. Employee may terminate Employee’s
employment hereunder at any time for either of the following reasons (a
termination for “Good Reason”): (i) the Company’s breach of any
material provision of this Agreement, which shall continue unremedied for
thirty
(30) days after written notice by Employee to the Company, or (ii) if
Employee is relieved by the Company of primary responsibility for the operations
of the business formerly conducted by LifeTime, except (x) for Cause,
or (y) if Employee is given other duties of substantially the same
responsibility and importance to the Company.
(f) Other
Termination by Employee. Employee may terminate Employee’s
employment hereunder at any time, other than for Good Reason, after providing
thirty (30) days-prior written notice to the Company.
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6.
Compensation Following Termination Prior
to the End of the Term. In the event that Employee’s employment
hereunder is terminated prior to the end of the Term, Employee shall be entitled
only to the following compensation and benefits upon such
termination:
(a) Termination
by Reason of Death or Disability. In the event that Employee’s
employment is terminated by reason of Employee’s death or Disability,
respectively, the Company shall pay the following amounts to Employee (or
Employee’s spouse or estate, as applicable):
(i) Any
accrued but unpaid Base Salary (as determined pursuant to Section 3(a) hereof)
for services rendered to the date of termination.
(ii) Any
accrued but unpaid expenses required to be reimbursed pursuant to Section
4(a)
hereof.
(iii) A
pro rata share, based on the portion of the fiscal year in which Employee
was
employed at the time of his death or Disability, of the Annual Bonus to which
Employee would have been entitled had Employee remained employed by the Company
through the end of the then current fiscal year (as determined pursuant to
Section 3(b) hereof). Such amount shall be paid as soon as reasonably
practicable following the calculation thereof at the end of such fiscal
year.
Except
as
otherwise specifically provided herein, in the event Employee’s employment is
terminated pursuant to this Section 6(a), the benefits to which Employee
may be
entitled upon such termination pursuant to the plans, programs and arrangements
referred to in Section 4(b) hereof shall be determined and paid in accordance
with the terms of such plans, programs and arrangements.
(b) Termination
by the Company for Cause or by Employee without Good Reason. In
the event that Employee’s employment hereunder is terminated by the Company for
Cause or by Employee without Good Reason, the Company shall pay the following
amounts to Employee:
(i) Any
accrued but unpaid Base Salary (as determined pursuant to Section 3(a) hereof)
for services rendered to the date of termination.
(ii) Any
accrued but unpaid expenses required to be reimbursed pursuant to Section
4(a)
hereof.
(c) Termination
by the Company Without Cause or by Employee for Good Reason. (A)
In the event that Employee’s employment hereunder is terminated by the Company
without Cause or by Employee for Good Reason, the Company shall pay the
following amounts to Employee:
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(i) Any
accrued but unpaid Base Salary (as determined pursuant to Section 3(a) hereof)
for services rendered to the date of termination.
(ii) Any
accrued but unpaid expenses required to be reimbursed pursuant to Section
4(a)
hereof.
(iii) Base
Salary for a period of twelve (12) months from the date of
termination.
(iv) A
pro rata share, based on such period of the fiscal year in which Employee
was
employed, of the Annual Bonus to which Employee would have been entitled
had
Employee remained employed by the Company through the end of the then current
fiscal year (as determined pursuant to Section 3(b) hereof); provided,
however, that Employee shall be entitled to the entire Annual Bonus to which
Employee would have been entitled had Employee remained employed by the Company
through the end of the then current fiscal year if, at the time of termination
of Employee’s employment pursuant to this Section 6(c), Employee was employed by
the Company for at least the first six (6) months of such fiscal
year. Such amount shall be paid as soon as reasonably
practicable following the calculation thereof at the end of such fiscal
year.
(B) Notwithstanding
the foregoing, the Company shall have no obligation to make any further payments
pursuant to Section 6(c)(A)(iii) or 6(c)(A)(iv) hereof in the event that
Employee breaches any of his obligations set forth in Section 7
hereof.
(C) Except
as otherwise specifically provided herein, in the event Employee’s employment is
terminated pursuant to this Section 6(c), the benefits to which Employee
may be
entitled upon such termination pursuant to the plans, programs and arrangements
referred to in Section 4(b) hereof shall be determined and paid in accordance
with the terms of such plans, programs and arrangements.
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(d)
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General.
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In
the
event that Employee’s employment is terminated for any reason, Employee shall
cease to be an employee of the Company for all purposes, and, except as may
be
provided under this Agreement or under the terms of any incentive compensation,
employee benefit or fringe benefit plan applicable to Employee at the time
of
Employee’s termination prior to the end of the Term, shall have no right to
receive any other compensation, employee benefits or perquisites, or to
participate in any other plan, arrangement or benefit, with respect to any
future period after such termination. In the event that Employee’s
employment is terminated for any reason, the Company’s payment of salary and
other amounts specifically provided for in the applicable previous paragraph
of
this Section 6 shall constitute complete satisfaction of all payment obligations
of the Company to Employee pursuant to this Agreement, and Employee’s rights set
out in this Section 6 shall constitute Employee’s sole and exclusive rights and
remedies as a result of any actual or constructive termination of his employment
hereunder.
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7.
Non-Competition and Non-Solicitation;
Non-Disclosure of Proprietary Information; Surrender of Records; Company
Property.
(a) General.
Employee acknowledges that the Company would not consummate the transactions
contemplated by the Asset Purchase Agreement without the assurance that Employee
will not engage in any of the activities prohibited by this Section 7 for
the
periods set forth below. Employee agrees to restrict Employee’s
actions as provided for in this Section 7. Employee understands that
the provisions of this Section 7 may limit Employee’s ability to earn a
livelihood in a business similar to the business of the Company but nevertheless
agrees and hereby acknowledges that the consideration provided under the
Asset
Purchase Agreement and this Agreement, including any amounts provided under
Section 3 hereof, are sufficient to justify the restrictions contained in
such
provisions. In consideration thereof, and in light of Employee’s
education, skills and abilities, Employee agrees that Employee will not assert
in any forum that the provisions of this Section 7 prevent Employee from
earning
a living or otherwise are void or unenforceable or should be held void or
unenforceable.
(b) Non-Competition Employee
acknowledges and recognizes the highly competitive nature of the Company’s
business and that Employee’s position with the Company and access to the
Company’s confidential records and proprietary information renders Employee
special and unique. In consideration of payments made and to be made
by the Company to Employee pursuant to this Agreement and the Asset Purchase
Agreement (including, without limitation, pursuant to Section 3 hereof),
Employee agrees that (A) during the Term or (B) in the event
Employee’s employment is terminated prior to the end of the Term, until the
later of (x) three (3) years from the Closing Date (as defined below) or
(y) one
(1) year from the termination of this Agreement, Employee will not, directly
or
indirectly, in the United States or any other place in which the Company
then
does business, engage in, or be affiliated in any manner with any individual,
partnership, venture, unincorporated association, organization, syndicate,
corporation, limited liability company, or other entity, trust and trustee,
executor, administrator or other legal or personal representative, or any
government or agency or political subdivision thereof (any of the foregoing,
a
“Person”) engaged in, the business of manufacturing, marketing, distributing
and/or selling (A) neutraceutical products, including but not limited to
dietary
supplements and pharmaceuticals; (B) any other product categories the Company
is
actively manufacturing, marketing, distributing and/or selling as of the
date of
termination or expiration of this Agreement; or (C) any other product categories
manufactured, marketed, distributed and/or sold by the Company during the
Term. As used in this Agreement, “Closing Date” means the date on
which the Closing actually occurs.
(c) Non-Solicitation. In
further consideration of the payments made and to be made by the Company
to
Employee pursuant to this Agreement and the Asset Purchase Agreement (including,
without limitation, pursuant to Section 3 hereof), Employee agrees that (A)
during the Term or (B) in the event Employee’s employment is
terminated prior to the end of the Term, until the later of (x) three (3)
years
from the Closing Date or (y) one (1) year from the termination of this
Agreement, Employee shall not, directly or indirectly, on his own behalf
or on
behalf of any Person, (A) advise or encourage any employee, agent, consultant,
representative, customer, licensor, vendor or supplier of the Company to
terminate his, her or its relationship with the Company, or (B) solicit or
attempt to solicit or participate in the solicitation of or employ or otherwise
engage any employee, agent, consultant or representative of the Company,
or
otherwise encourage any such person to become an employee, agent, representative
or consultant of or to any other Person.
8
(d) Extension
of Restrictions. Notwithstanding the foregoing, the Company shall
have the right, but not the obligation, to require Employee to remain subject
to
the restrictions set forth in Sections 7(b) and 7(c) hereof for a period
of one
year following the expiration of the Term, in which case the Company shall
pay
Employee an amount equal to one-half of Employee’s Base Salary during the last
year of his employment, payable in accordance with Section 3
hereof.
(e) Proprietary
Information. Employee acknowledges that during the course of
Employee’s employment with the Company Employee will necessarily have access to
and make use of proprietary information and confidential records of the
Company. Employee covenants that Employee shall not, during the Term
or any time thereafter (irrespective of the circumstances under which Employee’s
employment with the Company terminates), directly or indirectly, use for
Employee’s own purpose or for the benefit of any person or entity other than the
Company, nor otherwise disclose, any proprietary information of which Employee
has knowledge to any person or entity, unless such disclosure has been
authorized in writing by the Company or is otherwise required by
law. Employee acknowledges and understands that the term “proprietary
information” includes, but is not limited to, patents, copyrights and trade
secrets, including, without limitation: (i) the proprietary software products,
programs, applications and processes utilized by or on behalf of the Company
to
the extent such information is unique to the Company or is not known to others
outside the Company; (ii) the name and/or address of any customer, licensor
or
vendor of the Company, to the extent confidential, or any proprietary
information concerning the transactions or relations of any customer of the
Company with the Company or any of its principals, directors, employees or
agents; (iii) any proprietary information concerning any product, technology
or
procedure employed by or on behalf of the Company but not generally known
to its
customers or competitors, or under development by or being tested by or on
behalf of the Company but not at the time offered generally to customers;
(iv)
any information which is generally regarded and treated as confidential or
proprietary in any line of business engaged in by or on behalf of the Company;
(v) information belonging to customers or affiliates of the Company or any
other
individual or entity which the Company has agreed to hold in confidence
(provided that Employee has knowledge of the Company’s duty to hold such
third-party information in confidence); and (vi) all written, graphic or
other
material relating to or containing any of the foregoing. The term
“proprietary information” shall not include information generally available to
or known by the public or in the industry, or information that is or becomes
available to Employee on a non-confidential basis from a source other than
the
Company or the Company’s stockholders, principals, directors, officers,
employees or agents (other than as a breach of any obligation of
confidentiality).
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(f) Confidentiality
and Surrender of Records. Employee shall not, during the Term or
any time thereafter (irrespective of the circumstances under which Employee’s
employment with the Company terminates), except as required by law or as
is
necessary for the performance of Employee’s duties hereunder, directly or
indirectly, publish, make known or in any fashion disclose any confidential
records to, or permit any inspection or copying of confidential records by,
any
Person, and Employee shall not retain, and shall deliver promptly to the
Company, any of the same following termination of Employee’s employment for any
reason or upon request by the Company. The term “confidential
records” means all correspondence, memoranda, files, manuals, books, designs,
sketches, lists, financial, operating or marketing records, magnetic tape,
or
electronic or other media or equipment for records of any kind which may
be in
Employee’s possession or under Employee’s control or accessible to Employee
which may contain any proprietary information. All confidential
records shall be and remain the sole property of the Company during the Term
and
thereafter.
(g) Disclosure
Required by Law. In the event Employee is required by law or
court order to disclose any proprietary information or confidential records
of
the Company, Employee shall provide the Company with prompt written notice
so
that the Company may seek a protective order or other appropriate remedy,
and if
such protective order or other remedy is not obtained, Employee shall furnish
only that portion of the proprietary information that is legally required
as
determined by counsel to the Company.
(h) No
Other Obligations. Employee represents and warrants to the
Company that Employee is not precluded or limited in Employee’s ability to
undertake or perform the duties described herein by any contract, agreement,
or
restrictive covenant. Employee covenants that Employee shall not
employ the trade secrets or proprietary information of any other Person in
connection with Employee’s employment by the Company.
(i) Confidentiality
of this Agreement. Employee agrees to keep confidential the terms
of this Agreement, to the extent public disclosure is not made by the Company
as
provided below. This provision does not prohibit Employee from
providing this information as required by law or to his attorneys, accountants
or business advisors for purposes of obtaining legal, tax or business advice;
provided, however, that Employee shall be responsible for breaches of the
confidentiality restrictions contained herein by such persons as if Employee
had
breached such restrictions. The Company shall not disclose the terms
of this Agreement except as necessary in the ordinary course of its business,
as
required by law or as required by any governmental or quasi-governmental
entity
or any self regulatory organization.
(j) Company
Property. All rights (if any) in reports, materials, inventions,
processes, discoveries, improvements, modifications, know-how or trade secrets
conceived, developed or otherwise made by Employee during the Term, alone
or
with others, and in any way relating to the present or future products or
business of the Company (collectively, the “Developments”), shall be the sole
property of the Company. Employee agrees to, and hereby does, assign
to the Company for no consideration all of Employee’s right, title and interest
in and to all Developments. Employee agrees that all such
Developments that are copyrightable shall constitute works made for hire
under
the copyright laws of the United States and Employee hereby assigns to the
Company all copyrights and other proprietary rights Employee may have in
any
such Developments to the extent that they might not be considered works made
for
hire. Employee shall make and maintain adequate and current written
records of all Developments, and shall disclose all Developments fully and
in
writing to the Company promptly after development of the same, and at any
time
upon request.
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(k) Enforcement. Employee
acknowledges and agrees that, by virtue of Employee’s position, Employee’s
services, and access to and use of proprietary information and confidential
records, any violation by Employee of any of the undertakings contained in
this
Section 7 would cause the Company immediate, substantial and irreparable
injury
for which it has no adequate remedy at law. Accordingly, Employee
agrees that in the event of a breach by Employee of any said undertakings,
the
Company will be entitled to seek temporary and permanent injunctive relief
in
any court of competent jurisdiction (without the need to post any bond and
without proving that damages would be inadequate). Rights and
remedies provided for in this Section 7 are cumulative and shall be in addition
to rights and remedies otherwise available to the parties hereunder or under
applicable law.
8.
No Third Party Rights. The
parties do not intend the benefits of this Agreement to inure to any person
or
entity not a party to this Agreement (other than to the spouse or estate
of
Employee in the case of death or Disability of Employee, in which case such
spouse or estate shall be entitled to only those rights set forth in Section
6(a) hereof). Notwithstanding anything contained in this Agreement,
this Agreement shall not be construed as creating any right, claim or cause
of
action against any party by any person or entity not a party to this Agreement
(other than the spouse or estate of Employee in the case of the death or
Disability of Employee, in which case such spouse or estate shall be entitled
to
only those rights set forth in Section 6(a) hereof).
9.
Notices. Unless otherwise
provided herein, any notice required or permitted under this Agreement shall
be
given in writing and shall be deemed to have been duly given upon personal
delivery to the party to be notified or three (3) days after being mailed
by
United States certified or registered mail, postage prepaid, return receipt
requested or one (1) day after being sent by Federal Express or other recognized
overnight delivery to the following respective addresses, or at such other
address as each may specify by notice to the other:
Notice
to
the Company:
Baywood
International, Inc.
00000
Xxxxx 00xx
Xxxxx, Xxxxx 0
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx Xxxxxxxxxx, President & CEO
Facsimile:
(000) 000-0000
With
a
copy to:
Meltzer,
Lippe, Xxxxxxxxx & Breitstone, LLP
000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
11
Notice
to
Employee:
Xxxxxx
Xxxxxxxxx
0000
Xxxxx Xxxx Xxxxxxx
Xxx
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
With
a
copy to:
Xxxxxxxxx
Xxxxx Xxxxxxx & Xxxx
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx
X. Xxxxxx, Esq.
Facsimile:
(000) 000-0000
10. Assignability;
Binding Effect. This Agreement is a personal contract calling for
the provision of unique services by Employee, and Employee’s obligations
hereunder may not be sold, transferred, assigned, pledged or
hypothecated. In the event of any attempted assignment or transfer of
obligations hereunder by Employee contrary to the provisions hereof, the
Company
will have no further liability for payments hereunder. The rights and
obligations of the Company hereunder will be binding upon and inure to the
benefit of the successors and assigns of the Company.
11. Entire
Agreement; Amendment; Waiver. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof. This Agreement shall not be modified or amended except by a
written instrument duly executed by each of the parties hereto. Any
waiver of any term or provision of this Agreement shall be in writing signed
by
the party charged with giving such waiver. Waiver by either party
hereto of any breach hereunder by the other party shall not operate as a
waiver
of any other breach, whether similar to or different from the breach
waived. No delay on the part of the Company or Employee in the
exercise of any of their respective rights or remedies shall operate as a
waiver
thereof, and no single or partial exercise by the Company or Employee of
any
such right or remedy shall preclude other or further exercise
thereof.
12. Severability. If
any term or provision of this Agreement shall be held to be invalid or
unenforceable for any reason, such term or provision shall be ineffective
to the
extent of such invalidity or unenforceability without invalidating the remaining
terms and provisions hereof, and this Agreement shall be construed as if
such
invalid or unenforceable term or provision had not been contained
herein.
12
13. Survivability. The
provisions of this Agreement, which by their terms call for performance
subsequent to termination of Employee’s employment hereunder, or of this
Agreement, shall survive such termination.
14. Counterparts
and Headings. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all which together
shall constitute one and the same instrument. Facsimile signatures
shall be given the same legal effect as original signatures. All
headings are inserted for convenience of reference only and shall not affect
the
meaning or interpretation of this Agreement.
15. Governing
Law. This Agreement shall be construed in accordance with the internal laws
of the State of Arizona, without regard to principles of conflicts of
laws.
16. Waiver
of Jury Trial. Each party hereto irrevocably waives, to the
fullest extent permitted by law, all rights to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
arising out of or relating to this Agreement or any of the transactions
contemplated hereby.
[Signature
Page Follows]
13
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above
written.
|
BAYWOOD
INTERNATIONAL, INC.
|
||
|
By:
|
/s/
Xxxx Xxxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxxx
|
||
|
Title:
President & C.E.O.
|
||
|
EMPLOYEE
|
||
|
/s/
Xxxxxx Xxxxxxxxx
|
||
|
XXXXXX
XXXXXXXXX
|
14
