S MARKET AMERICA, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of March 14,
2002 by and between MARKET AMERICA, INC., a North Carolina corporation
("Employer"), and XXXXXX X. XXXXXXX, an individual resident of North Carolina
("Employee");
R E C I T A L S:
WHEREAS, the Employer wishes to retain Employee as an employee of
the Employer pursuant to the terms of this Agreement and Employee wishes to
continue to remain so employed with the Employer; and
WHEREAS, the Employer recognizes the requirement to provide
additional consideration to Employee other than the continuation of employment
to support the non-competition obligations contained in this Employment
Agreement as it is not being entered into at the inception of Employee's
employment; and
WHEREAS, concurrently with and as a condition to the execution of
this Agreement, the Employer and Employee are executing a Stockholders'
Agreement (as defined below), which, together with this Agreement, confers
additional consideration for Employee; and
WHEREAS, the Stockholders' Agreement, this Agreement and similar
Employment Agreements with certain other management employees of Employer are
being entered into as a condition to the acquisition of Employer by Miracle
Marketing, Inc. ("Miracle") through the proposed merger of Employer with a
subsidiary of Marketing in which Employer will be the surviving corporation (the
"Proposed Merger"); and
WHEREAS, the Employer is an enterprise whose success is attributable
largely to the creation and maintenance of certain Proprietary Information (as
defined below) and, during his employment, Employee has been and will be
situated to have access to and be knowledgeable with respect to the Proprietary
Information; and
WHEREAS, the Employer has a legitimate protectible business interest
in the creation and maintenance of its Proprietary Information and the
protection of the identity of, and related information concerning, its
distributors and customers and the Employer's distributor customer lists; and
WHEREAS, the Employer wishes to protect its Proprietary Information
from disclosure by Employee by means of the restrictive covenants contained in
this Agreement and Employee agrees to such covenants in exchange for the
additional consideration agreed to between the parties; and
WHEREAS, Employee acknowledges that the success of Employer's
operations is greatly affected by Employer's ability to prevent Proprietary
Information developed and obtained by Employer, as well as the skills and
know-how developed by its employees with Employer, from becoming available to a
business that competes with Employer.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment. For the Term (as defined in Section 2), Employee
shall be employed as a Vice President of Employer. Employee will principally
perform his services for Employer from Employer's offices in Greensboro, North
Carolina. Employee hereby accepts and agrees to such employment, subject to the
general supervision of the Board of Directors of Employer (the "Board") and
Employer's President. Employee shall perform such duties and shall have such
powers, authority and responsibilities as described on Attachment A hereto and
shall additionally render such other services and duties as may be reasonably
assigned to him from time to time by the Board or the President.
2. Term of Employment. This Agreement shall commence as of the
effective date of the Proposed Merger (the "Effective Date") and continue
thereafter until terminated as provided in Section 7 or Section 8 below (such
period, the "Term"). Any termination of this Agreement shall not affect the
parties' continuing obligations under Sections 5 and 6, which shall survive any
such termination.
3. Compensation.
(a) Base Salary. For all services rendered by Employee to
Employer under this Agreement, Employer shall pay to Employee, during the Term,
an annual salary of $127,859.16, payable in accordance with the customary
payroll practices of Employer. During the Term, Employee's annual base salary
shall be reviewed and subject to adjustment, either upwards or downwards, as
determined by the Board from time to time.
(b) Cash Bonus Plans. During the term, Employee shall be
entitled to participate in the Employer's Management by Objective (the "MBO")
and/or other cash bonus plans, if any, generally made available to senior
management employees, from time to time, in accordance with and subject to the
requirements of such plans (including, without limitation, the MBO); provided
nothing herein shall obligate Employer to continue any of such plans including,
without limitation, the MBO, for Employee if discontinued for other senior
management employees or to maintain the present or any level of bonus potential.
(c) Benefits. Employee shall also be entitled to holidays,
sick leave and other time off and to participate in those life, health or other
insurance plans and other employee pension and welfare benefit programs, plans,
practices and benefits, if any, generally made available from time to time to
all employees of Employer; provided that nothing herein shall obligate Employer
to continue any of such benefits for Employee if discontinued for other
employees or to maintain the present level of benefits as exists on the date of
this Agreement.
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(d) Taxes. Employer shall withhold from any amount payable to
Employee (or to his beneficiary or estate or any other person) hereunder all
federal, state, local or other taxes that Employer may reasonably determine are
required to be withheld pursuant to any applicable law, rule or regulation.
(e) Expenses. Employer shall pay or reimburse Employee for
all reasonable travel and other expenses incurred by Employee solely in his
capacity as an employee of Employer in connection with trips approved by
Employer in writing, provided Employee submits written expense reports and
receipts detailing all such expense items.
4. Other Relationships; Additional Consideration.
(a) The parties acknowledge that in addition to his employment
hereunder by Employer, Employee or his affiliate also is a party to one or more
Independent Distributor Agreements with Employer (each an "XXX") pursuant to
which Employee owns and operates, as an independent contractor apart from and
unrelated to his employment hereunder, a sales organization for Employer's
products (the "Distributorship Arrangement"). Nothing herein shall be deemed to
amend or modify the Distributorship Arrangement, except to the extent of any
conflict between this Agreement and any XXX, in which case the terms of this
Agreement shall control. In particular and without limitation, the Employee
agrees he shall not allow the Distributorship Arrangement to interfere with his
duties under this Agreement and nothing in the XXX shall be construed to excuse
the Employee's performance of such duties. Employee also acknowledges that
nothing in this Agreement shall be construed to grant any right to Employee to
continue such Distributorship Arrangement.
(b) The parties further acknowledge that it is a condition of
Employee's employment hereunder that on or prior to the date hereof, Employee
shall enter into and be bound by the terms of that certain Offering Group
Stockholders' Agreement dated as of March 14, 2002 by and among Miracle and its
shareholders, as the same may be amended from time to time (the "Stockholders'
Agreement"). To the extent of any conflict between this Agreement and the
Stockholders' Agreement, the terms of the Stockholders' Agreement shall control.
The Employee acknowledges that the Stockholders' Agreement includes certain
rights and consideration that confer an economic benefit upon Employee.
5. Covenants of Employee. Employee specifically acknowledges
the adequacy and receipt of the consideration provided to Employee for the
covenants set forth below:
(a) Covenant Not to Compete. Employee covenants that during
the "Noncompetition Period" (as defined in Section 5(g)) and within the
"Noncompetition Area" (as defined in Section 5(h)), he shall not, directly or
indirectly, as principal, agent, officer, director, shareholder, member,
employee, consultant, trustee or other capacity, or through the agency of any
person, firm, corporation, partnership, limited liability company, association
or other entity (collectively, "Entity"), engage in the "Business" (as defined
in Section 5(i)). Without limiting the generality of the foregoing, Employee
agrees that during the Noncompetition Period and within the Noncompetition Area,
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he shall not be (i) the owner of the outstanding capital stock or other equity
interests of any Entity (other than Miracle or its affiliates) that, directly or
indirectly, engages in the Business; or (ii) an officer, director, partner,
manager, member, consultant or employee of any Entity (other than Miracle or its
affiliates) that, directly or indirectly, engages in the Business; provided,
that this Section 5(a) shall not prevent Employee from beneficially owning less
than 1% of the stock of a corporation traded on a national securities exchange
or the Nasdaq National Market.
(b) Nondisclosure Covenant. The parties acknowledge that
Employer and its affiliates are enterprises whose success is attributable
largely to the ownership, use and development of certain valuable confidential
and proprietary information (the "Proprietary Information"), and that Employee's
employment with Employer will involve access to and work with such information.
Employee acknowledges that his relationship with Employer is a confidential
relationship, and agrees that (i) he shall keep and maintain the Proprietary
Information in strictest confidence, and (ii) he shall not, either directly or
indirectly, use any Proprietary Information for his own benefit, or divulge,
disclose or communicate any Proprietary Information in any manner whatsoever to
any person or Entity other than to employees or agents of Employer having a need
to know such Proprietary Information to perform their responsibilities on behalf
of Employer, and to other persons or Entities in the normal course of Employer's
business. This nondisclosure obligation shall apply to all Proprietary
Information, whether or not Employee participated in the development thereof.
Upon termination of employment with Employer for any reason, Employee will
return to Employer all Proprietary Information in any medium and all other
documents, data, materials or property of Employer (including any copies thereof
regardless of the medium in which the copies exist) in his possession. For
purposes of this Agreement, the term "Proprietary Information" shall include any
and all proprietary information related to the business of Employer and its
affiliates and shareholders, or to any of their products, services, sales or
operations, which is not generally known to the public, specifically including
(but without limitation): trade secrets, processes, data, files, computer
programs, improvements, inventions, techniques, marketing plans, pricing
formula, strategies, forecasts, copyrightable material, suppliers, methods and
manner of operations; information relating to the identity, needs and location
of all past, present and prospective customers and distributors; and information
with respect to the internal affairs of Employer and its affiliates including
(but without limitation) results of operations, contents of financial statements
and corporate records. Such Proprietary Information may or may not contain
legends or other written notice that it is of a confidential or proprietary
nature. The parties stipulate that, as between them, the above-described matters
are important and confidential and gravely affect the successful conduct of the
business of Employer and its affiliates and that any breach of the terms of this
Section 5(b) shall be a material breach of this Agreement.
(c) Nonsolicitation Covenant. Except as expressly permitted
in any XXX between Employer and Employee, Employee covenants that during the
Noncompetition Period he shall not, directly or indirectly, on behalf of himself
or any Entity, call upon any of the customers or distributors of Employer (or
potential customers or distributors whose business Employee solicited on behalf
of Employer or about whose needs Employee gained information during his
employment with Employer) for the purpose of soliciting or providing any product
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or service similar to that provided by Employer, nor will Employee, in any way,
directly or indirectly, on behalf of himself or any Entity solicit, divert or
take away, or attempt to solicit, divert, or take away any of the customers,
business or other distributors of Employer (or potential customers or
distributors whose business Employee solicited on behalf of Employer or about
whose needs Employee gained information during his employment with Employer).
Employee further covenants that during the Noncompetition Period he shall not,
directly or indirectly, on behalf of himself or any Entity, solicit, induce or
encourage any person to leave the employ of Employer or to terminate any XXX or
Distributorship Arrangement.
(d) Independent Covenants. Each of the covenants on the part
of Employee contained in Sections 5(a), (b) and (c) of this Agreement shall be
construed as an agreement independent of each other such covenant. The existence
of any claim or cause of action of Employee against Employer, Miracle or any of
their affiliates, officers, directors, shareholders, employees or agents,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Employer of any such covenant.
(e) Enforceability. If any of the restrictions contained in
this Section 5 shall be deemed to be unenforceable by reason of the extent,
duration, geographical scope or other provisions thereof, then the parties
hereto contemplate that the court shall reduce such extent, duration,
geographical scope or other provision hereof and enforce this Section 5 in its
reduced form for all purposes in the manner contemplated thereby.
(f) Failure to Comply. Employee acknowledges that the
covenants included in Section 5 of this Agreement are crucial to the success of
Employer and that violation of the covenants would immeasurably damage Employer
and/or its affiliates. In the event that Employee shall fail to comply with any
provision of this Section 5, all rights of Employee and any person claiming
under or through him to the payments or benefits described in this Agreement
shall thereupon terminate, and no person shall be entitled thereafter to receive
any payments or benefits hereunder. In addition to the foregoing, in the event
of a breach by Employee of the provisions of this Section 5, Employer shall have
and may exercise any and all other rights and remedies available to Employer at
law or otherwise, including but not limited to obtaining an injunction from a
court of competent jurisdiction enjoining and restraining Employee from
committing a violation, and Employee hereby consents to the issuance of an
injunction.
(g) Noncompetition Period. "Noncompetition Period" shall mean
the period commencing on the Effective Date of the Agreement and continuing
until twenty-four (24) months following the end of the Term of the Agreement.
The obligations in this Section 5 survive the termination or expiration of this
Agreement.
(h) Noncompetition Area. The "Noncompetition Area" shall
consist of the following: (a) the United States (b) Canada; (c) U.S. Virgin
Islands (d) Bahama Islands; (e) Puerto Rico; (f) Guam; (g) Saipan; and (h) any
other state, country or political subdivision where Employer does or will do
"Business" during the "Noncompetition Period" and in or for which the Employee
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assists or performs services assisting Employer, including, without limitation,
Australia and Taiwan.
(i) Business. For the purposes of this Agreement, the
"Business" shall mean (i) the business of multi-level brokerage and internet
marketing of consumer products through a network of independent distributors who
can earn money by purchasing consumer products at wholesale prices and reselling
them at retail prices and by building sales organizations of other independent
distributors from which they may earn commissions from training and managing
those sales organizations or (ii) the business of mass customization and
internet marketing of consumer products by identifying preferences of an
enterprise's customer base through data mining and similar techniques and
sourcing production and distribution to consumers. Business shall not include
the operation of a retail or discount store wherein the public selects and pays
for merchandise on-site and in person.
(j) Employee Acknowledgment. Employee acknowledges that he
has the ability to earn a living, even though he is prevented from engaging in
the Business for the Noncompetition Period and in the Noncompetition Area.
(k) Confidentiality of Agreement. Employee agrees that he
will keep and maintain all provisions of this Agreement in the strictest
confidence and shall not directly or indirectly, divulge, disclose or
communicate such information in any such manner whatsoever to any person or
Entity other than (i) his personal tax, financial planning or other professional
advisers, (ii) as may be required by court order, decree, regulation or other
law, or (iii) with respect to such information as may become publicly known
other than by breach of this Agreement.
6. Inventions.
(a) Duty to Disclose. If requested specifically by Employer
in writing, Employee will promptly disclose in writing to Employer (or persons
designated by it) all discoveries, developments, designs, improvements,
inventions, formulae, processes, techniques, programs, strategies, know-how,
data or other information of possible technical or commercial importance,
whether or not patentable or registrable under copyright or similar statutes,
made, conceived, reduced to practice or learned by Employee, either alone or
jointly with others, during Employee's employment by Employer (including
Employee's period of employment prior to the date of this Agreement) that are
related to the Business, whether or not discovered, made, conceived, reduced to
practice or learned during ordinary business hours or otherwise and whether on
Employer's premises or elsewhere (all such discoveries, developments, designs,
improvements, inventions, formulae, processes, techniques, programs, strategies,
know-how, data and other information are hereinafter referred to as
"Inventions"). Employee will also promptly disclose to Employer, and Employer
hereby agrees to receive all such disclosures in confidence, all other
discoveries, developments, designs, improvements, inventions, formulae,
processes, techniques, programs, strategies, know-how, data or other information
of possible technical or commercial importance, whether or not patentable or
registrable under copyright or similar statutes, made, conceived, reduced to
practice or learned by Employee, either alone or jointly with others, arising
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during Employee's employment with Employer (whether prior to or during the Term)
that are functionally related to Employer's Business for the purpose of
determining whether they constitute "Inventions", as defined above.
(b) Assignment of Rights; Duty to Assist; Power of Attorney.
Employee hereby assigns to Employer any rights Employee may have or acquire in
such Inventions and agrees that all such Inventions, including all patents,
copyrights and other rights connected thereto, shall be the sole property of
Employer and its assigns. At the request and expense of Employer, Employee
agrees to assist Employer in every proper way to obtain and from time to time to
enforce patents, copyrights and other rights and protections relating to such
Inventions in any and all countries, and to that end Employee will execute all
documents for use in applying for and obtaining such patents, copyrights and
other rights and protections on and enforcing such Inventions, as Employer deems
necessary or desirable, together with any assignments thereof to Employer or
persons designated by it. Employee's obligation to assist Employer in obtaining
and enforcing patents, copyrights and other rights and protections relating to
such Inventions in any and all countries shall survive and continue beyond the
termination of this Agreement and Employee's employment by Employer, but
Employer shall reimburse Employee for all reasonable and direct out-of-pocket
expenses after Employee's termination for travel by Employee in connection with
rendering such assistance at Employer's request. In the event Employer is
unable, after reasonable effort, to secure Employee's signature on any document
or documents needed to apply for or prosecute any patent, copyright or other
right or protection relating to any Invention because of Employee's physical or
mental incapacity, Employee hereby irrevocably designates and appoints Employer
and its duly authorized officers and agents as Employee's agent and
attorney-in-fact, to act for and in Employee's behalf and stead to execute and
file any such applications or documents and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyrights or similar
protections thereon with the same legal force and effect as if executed by
Employee. Employee expressly acknowledges, stipulates and agrees that the
foregoing power of attorney is coupled with an interest, is therefore
irrevocable and shall survive the death or incompetency of Employee.
(c) Covenant of No Conflicting Obligations. Employee
represents that his performance of all the terms of this Section 6 and as an
employee engaged by Employer does not and will not breach any agreement to keep
in confidence proprietary information acquired by Employee in confidence or in
trust prior to Employee's employment by Employer. Employee has not entered into
and Employee agrees not to enter into any agreement, either written or oral,
that conflicts with Employee's duties or covenants under this Agreement.
7. Disability. Upon the "disability" of Employee, this Agreement
may be terminated by action of the Board upon 30 days prior written notice (the
"Disability Notice"). If, prior to the effective time of the Disability Notice,
Employee shall recover from such disability and return to the full-time active
discharge of his duties, then the Disability Notice shall be of no further force
and effect and Employee's employment shall continue as if the same had been
uninterrupted. If Employee shall not so recover from his disability and return
to his duties, then his services shall terminate at the effective time of the
Disability Notice with the same force and effect as if that date had been the
end of the Term originally provided for hereunder. Such termination shall not
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prejudice any benefits payable to Employee that are fully vested as of the date
of such termination. Prior to the effective time of the Disability Notice,
Employee shall continue to earn all compensation to which Employee would have
been entitled as if he had not been disabled, such compensation to be paid at
the time, in the amounts, and in the manner provided in Section 3(a). A
"disability" shall mean a physical or mental impairment that substantially
limits one or more of the Employee's major life activities and renders the
Employee unable to perform the essential functions of his duties (as they
existed immediately before the impairment) on a full-time basis. The Board shall
have sole authority to determine if a disability exists.
8. Termination.
(a) If Employee shall die during the Term, this Agreement and
the employment relationship hereunder will automatically terminate on the date
of death, which date shall be deemed to be the last day of the Term; provided
that such termination shall not prejudice any benefits payable to Employee or
Employee's beneficiaries that are fully vested as of the date of death.
(b) Employer may terminate Employee's employment under this
Agreement at any time with or without Cause. Any termination without Cause shall
be effective only on sixty (60) days prior written notice to Employee (the
"Notice Period"); provided, that in lieu of permitting or requiring Employee to
perform his duties hereunder during the Notice Period, Employer at its sole
option may immediately terminate Employee's employment hereunder upon payment of
Employee's salary for the portion of the Notice Period Employee is relieved from
working, less any amounts customarily withheld or deducted therefrom. Any
termination with Cause shall be effective immediately or at such other time set
by the Board. For the purposes herein, "Cause" shall mean the occurrence of any
one or more of the following:
(i) The conviction of Employee of, or a plea by
Employee of nolo contendere to, a felony, or any misdemeanor that
involves moral turpitude;
(ii) Employee's engaging in any act of fraud, theft,
breach of trust, misappropriation, embezzlement or dishonesty;
(iii) Employee's continued alcohol or other substance
abuse that interferes with the performance of his duties and
responsibilities;
(iv) Any material breach by Employee of any provision of
this Agreement (including but not limited to Employee's breach of any
covenant contained in Sections 5 or 6 herein);
(v) Employee intentionally damages substantial
property of the Employer;
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(vi) Except as expressly permitted in any XXX between
Employer and Employee, any diversion or attempted diversion by Employee of
a business opportunity from Employer without written Board consent;
(vii) Employee's breach of fiduciary obligations to
the Employer;
(viii) The continued failure of Employee to perform his
duties with Employer (other than any such failure resulting from
Employee's incapacity due to physical or mental illness) which has not
been corrected within thirty (30) days after a written demand for
performance is delivered to Employee by Employer which specifically
identifies the manner in which Employer believes that Employee has not
substantially performed Employee's duties; or
(ix) Employee's engaging in conduct that could
reasonably be expected to damage or prejudice Employer or any affiliate or
engaging in conduct or activities that could reasonably be expected to
damage the property, business, reputation or any relationship of Employer
or any affiliate, including but not limited to breaching Employer policies
including (but without limitation) those related to conflicts of interest,
equal employment opportunity and unlawful harassment;
Cause shall be determined by the Board in its sole discretion.
(c) Employee may voluntarily terminate his employment with
Employer on sixty (60) days prior written notice to Employer.
(d) Employee shall not be entitled to any form of severance
benefits, including but not limited to benefits otherwise payable under
Employer's regular severance plans or policies, if any, or any other payment
whatsoever. Employee agrees that the payments and benefits provided hereunder,
subject to the terms and conditions hereof, shall be in full satisfaction of any
rights which he might otherwise have or claim by operation of law, by implied
contract or otherwise, except for rights which he may have under any employee
benefit plan of Employer.
9. Best Efforts of Employee. Employee agrees that he will at all
times faithfully, industriously and to the best of his ability, experience and
talents perform all the duties that may be required of Employee pursuant to the
express and implicit terms hereof, to the reasonable satisfaction of Employer,
commensurate with his position. Employee acknowledges that he may be required to
travel as shall reasonably be required to promote the business of Employer. To
the extent reasonably required by the duties assigned to him, Employee shall
devote substantially all his time, attention, knowledge and skills to the
business and interest of Employer, and Employer shall be entitled to all the
benefits, profits and other issue arising from or incident to all work, service
and advice of Employee, except and only to the extent otherwise specifically
provided in any XXX between Employer and Employee.
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10. Miscellaneous.
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(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina, without regard to
conflicts of law principles thereof.
(b) This Agreement constitutes the entire agreement between
Employee and Employer with respect to the subject matter hereof (except with
respect to the terms of the Stockholders' Agreement or any Distribution
Arrangement), and supersedes in their entirety any and all prior oral or written
agreements, understandings or arrangements between Employee and Employer or any
of its affiliates relating to the terms of Employee's employment by Employer,
and all such agreements, understandings and arrangements are hereby terminated
and are of no force and effect. Employee hereby expressly disclaims any rights
under any such agreements, understandings and arrangements. This Agreement may
not be amended or terminated except by an agreement in writing signed by both
parties.
(c) Employee acknowledges that there has been separate,
independent and adequate consideration received for the provisions of Sections 5
and 6 herein. Employee further acknowledges that the restrictions, prohibitions
and other provisions set forth in this Agreement, including without limitation
the provisions of Sections 5 and 6 herein, are reasonable, fair and equitable in
scope, terms and duration, are necessary to protect the legitimate business
interests of Employer, and are a material inducement to Employer to enter into
this Agreement. Employee covenants that he will not challenge the enforceability
of this Agreement nor will he raise any equitable defense to its enforcement.
(d) The obligation of Employer to make payments hereunder
shall constitute an unsecured liability of Employer to Employee. Employer shall
not be required to establish or maintain any special or separate fund, or
otherwise to segregate assets to assure that such payments shall be made, and
Employee shall not have any interest in any particular assets of Employer by
reason of its obligations hereunder. Nothing contained in this Agreement shall
create or be construed as creating a trust of any kind or any other fiduciary
relationship between or among Employer, Employee, or any other person; provided,
that Employee shall observe all fiduciary duties required of an Entity's
managers, officers and directors pursuant to any laws, bylaw or agreement if and
at all times Employee serves as an officer, manager or director of Employer,
Miracle or their affiliates. To the extent that any person acquires a right to
receive payment from Employer, such right shall be no greater than the right of
an unsecured creditor of Employer.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
(f) Any notice or other communication required or permitted
under this Agreement shall be effective only if it is in writing and delivered
in person or by nationally recognized overnight courier service or deposited in
the mails, postage prepaid, return receipt requested, addressed as follows: (i)
if to Employer: Market America, Inc., 0000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX
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27409, Attention: Xxxxx X. Xxxxxxxx; (ii) if to Employee: the then current
address on the payroll records of the Employer. Notices given in person or by
overnight courier service shall be deemed given when delivered in person or the
day after delivery to the courier addressed to the address required by this
Section 10(f), and notices given by mail shall be deemed given three days after
deposit in the mails. Any party hereto may designate by written notice to the
other party in accordance herewith any other address to which notices addressed
to him shall be sent.
(g) The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. It is
understood and agreed that no failure or delay by Employer in exercising any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
(h) This Agreement may not be assigned by Employee without
the written consent of Employer. This Agreement shall be binding on any
successors or assigns of either party hereto.
(i) For purposes of this Agreement, employment of Employee by
any affiliate of Employer shall be deemed to be employment by Employer
hereunder, and a transfer of employment of Employee from one such affiliate to
another shall not be deemed to be a termination of employment of Employee by
Employer or a cessation of the Term, it being the intention of the parties
hereto that employment of Employee by any affiliate of Employer shall be treated
as employment by Employer and that the provisions of this Agreement shall
continue to be fully applicable following any such transfer. For purposes of
this Agreement, an "affiliate" of the Employer shall mean a corporation or other
entity a majority of the voting securities of which is beneficially owned by the
Employer, or any other corporation or other entity controlling, controlled by,
or under common control with, the Employer.
(j) The respective rights and obligations of the parties
hereunder shall survive any termination of the Term or Employee's employment
with Employer to the extent necessary to preserve such rights and obligations
for their stated durations.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
MARKET AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx, President
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT A
Xxx Xxxxxxx
-----------
Xx. Xxxxxxx is responsible for oversight of the Events and Quality Assurance
Departments and all aspects of international expansion. He also oversees the
Commissions Analysis and Accounting Departments and budgeting for the Motor
Yacht Utopia. He also oversees the corporate budget process. Xx. Xxxxxxx sits on
various management committees including product, publications, internet/MIS,
payables, International, marketing, Quality Steering, policy improvement and
legal. Xx. Xxxxxxx has recently assumed a role as a presenter at National events
and will be expected to continue developing this role. Xx. Xxxxxxx'x duties
require travel. Xx. Xxxxxxx'x duties may be adjusted from time to time by the
CEO and President.
