EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into this
8th day of August 2008 by and between Allergy Research Group, Inc., a Florida
corporation (the "COMPANY"), and Xxxxxxx Xxxxxxx (the "EXECUTIVE").
RECITALS
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A. The Company desires to employ the Executive, and the Executive desires
to accept such employment, on the terms and conditions set forth in this
Agreement.
B. This Agreement shall be effective immediately and shall govern the
employment relationship between the Executive and the Company from and after the
date of the closing of the merger of Longhorn Acquisition Corp. with and into
the Company (the "EFFECTIVE Date"), and, as of such date, supersedes and negates
all previous agreements and understandings with respect to such relationship.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals incorporated herein
and the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties agree as follows:
1. RETENTION AND DUTIES.
1.1 RETENTION. The Company does hereby hire, engage and employ the
Executive for the Period of Employment (as defined in Section 2) on
the terms and conditions expressly set forth in this Agreement. The
Executive does hereby accept and agree to such hiring, engagement
and employment, on the terms and conditions expressly set forth in
this Agreement.
1.2 DUTIES. During the Period of Employment, the Executive shall serve
the Company as its Chief Operating Officer and shall have the
powers, authorities and duties usually vested in the office of the
chief operating officer of a company of a similar size and similar
nature of the Company, and such other powers, authorities and duties
commensurate with such position as the Company's Board of Directors
(the "BOARD") may assign from time to time, all subject to the
directives of the Board and the corporate policies of the Company as
in effect from time to time (including, without limitation, the
Company's business conduct and ethics policies, as they may change
from time to time). During the Period of Employment, the Executive
shall report to Xxxxxxx Xxxxx and Xxxxxxx Xxxxxxxx, or such other
person or persons as may be designated by the Board in its
discretion (the "DESIGNATED PERSON").
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1.3 NO OTHER EMPLOYMENT; MINIMUM TIME COMMITMENT. During the Period of
Employment, the Executive shall (i) devote substantially all of the
Executive's business time, energy and skill to the performance of
the Executive's duties for the Company, (ii) perform such duties in
a faithful, effective and efficient manner to the best of his
abilities, and (iii) hold no other employment. The Executive's
service on the boards of directors (or similar body) of other
business entities is subject to the approval of the Board. The
Company shall have the right to require the Executive to resign from
any board or similar body (including any association, corporate,
civic or charitable board or similar body) if the Board reasonably
determines that the Executive's service on such board or body
interferes with the effective discharge of the Executive's duties
and responsibilities to the Company or that any business related to
such service is then in competition with any business of the Company
or any of its affiliates, successors or assigns.
1.4 NO BREACH OF CONTRACT. The Executive hereby represents to the
Company that: (i) the execution and delivery of this Agreement by
the Executive and the Company and the performance by the Executive
of the Executive's duties hereunder do not and shall not constitute
a breach of or conflict with the terms of any other agreement or
policy to which the Executive is a party or otherwise bound or any
judgment, order or decree to which the Executive is subject; (ii)
the Executive has no information (including, without limitation,
confidential information and trade secrets) relating to any other
individual or entity which would prevent, or be violated by, the
Executive entering into this Agreement or carrying out his duties
hereunder; (iii) the Executive is not bound by any employment,
consulting, non-compete, confidentiality, trade secret or similar
agreement (other than this Agreement) with any other entity; and
(iv) the Executive understands the Company will rely upon the
accuracy and truth of the representations and warranties of the
Executive set forth herein and the Executive consents to such
reliance.
1.5 LOCATION. The Executive's principal place of employment shall be the
Company's principal executive office as it may be located from time
to time. The Executive acknowledges that he will be required to
travel from time to time in the course of performing his duties for
the Company.
2. PERIOD OF EMPLOYMENT. The "PERIOD OF EMPLOYMENT" shall be a period of two
years commencing on the Effective Date and ending at the close of business
on the second anniversary of the Effective Date; provided, however, that
this Agreement and the Period of Employment may be extended by mutual
written agreement of the Company and the Executive. The term "Period of
Employment" shall include any extension thereof pursuant to the preceding
sentence. A decision by either party that the Period of Employment shall
not be extended or further extended, as the case may be, shall not
constitute a breach of this Agreement or, in the case of such a decision
by the Company, constitute Good Reason for purposes of this Agreement.
Notwithstanding the foregoing, the Period of Employment is subject to
earlier termination as provided below in this Agreement.
3. COMPENSATION.
3.1 BASE SALARY. During the Period of Employment, the Company shall pay
the Executive a base salary (the "BASE SALARY") in accordance with
the Company's regular payroll practices in effect from time to time
but not less frequently than monthly. The Executive's Base Salary
shall be at an annualized rate of Two Hundred Twenty Thousand
Dollars ($220,000). The Board (or a committee thereof) may, in its
sole discretion, increase (but not decrease) the Executive's rate of
Base Salary. The Board (or committee) shall review the Executive's
compensation annually in accordance with its established practice.
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3.2 INCENTIVE BONUS. Commencing with the 2008 fiscal year, the Executive
shall be eligible to receive an incentive bonus for each fiscal year
of the Company that occurs during the Period of Employment
("INCENTIVE BONUS"). Notwithstanding the foregoing and except as
otherwise expressly provided in this Agreement, the Executive must
be employed by the Company at the time the Company pays the
Incentive Bonus with respect to a particular year generally in order
to be eligible for an Incentive Bonus with respect to that year. The
Executive's Incentive Bonus amount for each fiscal year shall be
determined by the Board (or a committee thereof) in its sole
discretion based on performance objectives established with respect
to that particular fiscal year by the Board (or a committee thereof)
and communicated to the Executive at the beginning of the applicable
fiscal year; provided, however, that in no event shall the
Executive's actual Incentive Bonus amount for the Company's 2008
fiscal year be less than Thirty Thousand Dollars ($30,000) (subject
to the continued employment requirement set forth above).
4. BENEFITS.
4.1 RETIREMENT, WELFARE AND FRINGE BENEFITS. During the Period of
Employment, the Executive shall be entitled to participate in all
employee retirement (including but not limited to plans qualified
under Section 401(k) of the Code), pension and welfare benefit plans
and programs, and fringe benefit plans and programs, made available
by the Company to the Company's employees generally, in accordance
with the eligibility and participation provisions of such plans and
as such plans or programs may be in effect from time to time;
provided, however, that the Company shall use its commercially
reasonable efforts to provide the Executive during the Period of
Employment (under benefit plans or arrangements maintained by the
Company immediately prior to the Effective Date or otherwise) with
benefits that are at least substantially comparable in the aggregate
to the benefits the Company provided to the Executive immediately
prior to the Effective Date.
4.2 REIMBURSEMENT OF BUSINESS EXPENSES. The Executive is authorized to
incur reasonable expenses in carrying out the Executive's duties for
the Company under this Agreement and shall be entitled to
reimbursement for all reasonable business expenses the Executive
incurs during the Period of Employment in connection with carrying
out such duties, subject to the Company's expense reimbursement
policies and any pre-approval policies in effect from time to time.
Any such reimbursement shall be paid within ninety (90) days after
the related expense was incurred and shall be subject to the
Executive's having timely submitted all supporting and other
documentation required under the Company's expense reimbursement
policies in effect at the applicable time.
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4.3 VACATION AND OTHER LEAVE. During the Period of Employment, the
Executive's annual rate of vacation accrual shall be twenty (20)
days per year; provided that such vacation shall accrue and be
subject to the Company's vacation policies (including accrual caps)
in effect from time to time. The Executive shall also be entitled to
all other holiday and leave pay generally available to other
executives of the Company.
5. TERMINATION.
5.1 TERMINATION BY THE COMPANY. The Executive's employment by the
Company, and the Period of Employment, may be terminated at any time
by the Company: (i) with Cause (as defined in Section 5.5), or (ii)
without Cause with no less than ninety (90) days advance written
notice to the Executive (such notice to be delivered in accordance
with Section 17), or (iii) in the event of the Executive's death, or
(iv) in the event that the Board determines in good faith that the
Executive has a Disability (as defined in Section 5.5).
5.2 TERMINATION BY THE EXECUTIVE. The Executive's employment by the
Company, and the Period of Employment, may be terminated by the
Executive with no less than ninety (90) days advance written notice
to the Company (such notice to be delivered in accordance with
Section 17); provided, however, that in the case of a termination
for Good Reason (as defined in Section 5.5), the Executive may
provide immediate written notice of termination once the applicable
cure period (as contemplated by the definition of Good Reason) has
lapsed if the Company has not reasonably cured the circumstances
that gave rise to the basis for the Good Reason termination.
5.3 BENEFITS UPON TERMINATION. If the Executive's employment by the
Company is terminated during the Period of Employment for any reason
by the Company or by the Executive, or upon or following the
expiration of the Period of Employment (in any case, the date that
the Executive's employment by the Company terminates is referred to
as the "SEVERANCE DATE"), the Company shall have no further
obligation to make or provide to the Executive, and the Executive
shall have no further right to receive or obtain from the Company,
any payments or benefits except as follows:
(a) The Company shall pay the Executive (or, in the event of his
death, the Executive's estate) any Accrued Obligations (as such term
is defined in Section 5.5);
(b) If, during the Period of Employment, the Executive's employment
with the Company terminates as a result of either (i) a termination
by the Company without Cause pursuant to Section 5.1(ii) or (ii) a
termination by the Executive for Good Reason, the Executive shall be
entitled to (in addition to the Accrued Obligations), subject to the
following provisions of this Section 5.3 and Section 5.4 and subject
to tax withholding and other authorized deductions, an amount equal
to the Base Salary that the Executive would have been entitled to
receive for the period commencing on the Severance Date and ending
on the second anniversary of the Effective Date, or with respect to
any renewal period from the commencement of the Severance Date to
the end of the renewal period (the "SEVERANCE PERIOD"), had the
Executive continued to be employed with the Company throughout such
period at the annualized rate in effect on the Severance Date (the
"SEVERANCE BENEFIT"). The Severance Benefit shall be paid in
substantially equal installments in accordance with the Company's
standard payroll practices over a number of months equal to the
number of months in the Severance Period, with the first such
installment payable, subject to Section 5.7, in the month following
the month in which the Executive's Separation from Service (as
defined in Section 5.5) occurs. The Company shall also promptly pay
to the Executive any Incentive Bonus that would otherwise be paid to
the Executive had his employment not terminated with respect to any
fiscal year that ended before the Severance Date, to the extent not
theretofore paid.
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(c) Notwithstanding the foregoing provisions of this Section 5.3, if
the Executive breaches his obligations under Section 6 at any time,
from and after the date of such breach and not in any way in
limitation of any right or remedy otherwise available to the
Company, the Company will no longer be obligated to pay any
remaining unpaid amount contemplated by Section 5.3(b); provided
that, if the Executive provides the release contemplated by Section
5.4, in no event shall the Executive be entitled to benefits
pursuant to Section 5.3(b) of less than $5,000, which amount the
parties agree is good and adequate consideration, in and of itself,
for the Executive's release contemplated by Section 5.4.
(d) The foregoing provisions of this Section 5.3 shall not affect:
(i) the Executive's receipt of benefits otherwise due terminated
employees under group insurance coverage consistent with the terms
of the Company's welfare benefit plans; (ii) the Executive's rights
under COBRA to continue participation in health insurance coverage;
or (iii) the Executive's receipt of benefits otherwise due in
accordance with the terms of the Company's 401(k) plan (if any).
5.4 RELEASE; EXCLUSIVE REMEDY.
(a) This Section 5.4 shall apply notwithstanding anything else
contained in this Agreement to the contrary. As a condition
precedent to any Company obligation to the Executive pursuant to
Section 5.3(b), the Executive shall, upon or promptly following his
last day of employment with the Company, provide the Company with a
valid, executed general release agreement in a form acceptable to
the Company, and such release agreement shall have not been revoked
by the Executive pursuant to any revocation rights afforded by
applicable law.
(b) The Executive agrees that the payments and benefits contemplated
by Section 5.3 shall constitute the exclusive and sole remedy for
any termination of his employment and the Executive covenants not to
assert or pursue any other remedies, at law or in equity, with
respect to any termination of employment. The Company and the
Executive acknowledge and agree that there is no duty of the
Executive to mitigate damages under this Agreement. The Executive
agrees to resign, on the Severance Date, as an officer and director
of the Company and any affiliate of the Company, and as a fiduciary
of any benefit plan of the Company or any affiliate of the Company,
and to promptly execute and provide to the Company any further
documentation, as requested by the Company, to confirm such
resignation.
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5.5 CERTAIN DEFINED TERMS.
(a) As used herein, "ACCRUED OBLIGATIONS" means (i) any Base Salary
that had accrued but had not been paid (including accrued and unpaid
vacation time) on or before the Severance Date; and (ii) any
reimbursement due to the Executive pursuant to Section 4.2 for
expenses reasonably incurred by the Executive on or before the
Severance Date.
(b) As used herein, "CAUSE" shall mean, as reasonably determined by
the Board (excluding the Executive, if he is then a member of the
Board) based on the information then known to it, that one or more
of the following has occurred and, with respect to items (iii) and
(iv) below, has not been cured within thirty (30) days following the
Executive's receipt of notice thereof from the Board: (i) the
Executive is convicted of, or has pled guilty or NOLO CONTENDERE to,
a felony (under the laws of any relevant jurisdiction); (ii) the
Executive has engaged in acts of fraud, dishonesty or other acts of
willful misconduct in the course of his duties hereunder; (iii) the
Executive willfully fails to perform or uphold his duties under this
Agreement and/or willfully fails to comply with reasonable
directives of the Board; or (iv) a breach by the Executive of any
provision of this Agreement or any material breach by the Executive
of any other contract he is a party to with the Company or any of
its affiliates.
(c) As used herein, "DISABILITY" shall mean a physical or mental
impairment which has been determined by a medical professional
selected by the Board and agreed to by the Executive to render the
Executive unable to perform the essential functions of his
employment with the Company, even with reasonable accommodation that
does not impose an undue hardship on the Company, for more than 180
days in any 12-month period, unless a longer period is required by
federal or state law, in which case that longer period would apply.
(d) As used herein, a "SEPARATION FROM SERVICE" occurs when the
Executive dies, retires, or otherwise has a termination of
employment with the Company that constitutes a "separation from
service" within the meaning of Treasury Regulation Section
1.409A-1(h)(1), without regard to the optional alternative
definitions available thereunder.
(e) As used herein, "GOOD REASON" means the occurrence (without the
Executive's consent) of one or more of the following: (i) a
requirement that the Executive report to anyone other than a member
of the Board; (ii) a reduction by the Company in the Executive's
Base Salary as set forth in Section 3.1; (iii) a relocation of the
Executive's principal office with the Company to a new location that
is more than fifty (50) miles from the current location of the
Company's executive offices in Alameda, California; (iv) a failure
by the Company to require any successor to expressly assume and
perform its obligations hereunder in the same manner and to the same
extent the Company would be required to perform such obligations as
provided in Section 8 hereof; and (v) a material breach by the
Company of this Agreement; provided, however, that any such
condition or conditions, as applicable, shall not constitute Good
Reason unless both (x) the Executive provides written notice to the
Company of the condition claimed to constitute Good Reason within
sixty (60) days of the initial existence of such condition(s) (such
notice to be delivered in accordance with Section 17), and (y) the
Company fails to remedy such condition(s) within thirty (30) days of
receiving such written notice thereof.
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5.6 NOTICE OF TERMINATION. Any termination of the Executive's employment
under this Agreement shall be communicated by written notice of
termination from the terminating party to the other party. This
notice of termination must be delivered in accordance with Section
17 and must indicate the specific provision(s) of this Agreement
relied upon in effecting the termination.
5.7 SECTION 409A. If the Executive is a "specified employee" within the
meaning of Treasury Regulation Section 1.409A-1(i) as of the date of
the Executive's Separation from Service, the Executive shall not be
entitled to any payment or benefit pursuant to Section 5.3(b) until
the earlier of (i) the date which is six (6) months after his or her
Separation from Service for any reason other than death, or (ii) the
date of the Executive's death. The provisions of this paragraph
shall only apply if, and to the extent, required to avoid the
imputation of any tax, penalty or interest pursuant to Section 409A
of the Code. Any amounts otherwise payable to the Executive upon or
in the six (6) month period following the Executive's Separation
from Service that are not so paid by reason of this Section 5.7
shall be paid (without interest) as soon as practicable (and in all
events within thirty (30) days) after the date that is six (6)
months after the Executive's Separation from Service (or, if
earlier, as soon as practicable, and in all events within thirty
(30) days, after the date of the Executive's death).
6. PROTECTIVE COVENANTS.
6.1 CONFIDENTIAL INFORMATION. As a material part of the consideration
for the Company's commitment to the terms of this Agreement, the
Executive hereby agrees that the Executive will not at any time
(whether during or after the Executive's employment with the
Company), other than in the course of the Executive's duties
hereunder, disclose or use for the Executive's own benefit or
purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other
business organization, entity or enterprise, any trade secrets, or
other confidential data or information relating to customers,
development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, financing methods,
or plans of and specific to the Company or any of its affiliates
(collectively, "CONFIDENTIAL INFORMATION"); PROVIDED, HOWEVER, that
the foregoing shall not apply to information which is generally
known to the industry or the public, other than as a result of the
Executive's breach of this covenant. The Executive further agrees
that the Executive will not retain or use for his account, at any
time, any trade names, trademark or other proprietary business
designation used or owned in connection with the business of the
Company or any of its affiliates. Notwithstanding the foregoing,
this Section 6.1 shall not apply when (i) disclosure of Confidential
Information is required by law or by any court, arbitrator, mediator
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or administrative or legislative body (including any committee
thereof) with apparent jurisdiction to order the Executive to
disclose or make available such information (provided, however, that
the Executive shall immediately notify the Company in writing upon
receiving a request for such information), or (ii) with respect to
any other litigation, arbitration or mediation involving this
Agreement, including but not limited to enforcement of this
Agreement. The Executive shall promptly deliver to the Company upon
the termination of Executive's employment with the Company, for any
reason, or any time the Company may so request, all memoranda,
notes, records, reports, manuals, charts, and any other documents of
a confidential nature belonging to the Company or its affiliates,
including all copies, wherever and however located, including
electronically, of such materials which the Executive may then
possess or have under the Executive's control. Upon termination of
the Executive's employment with the Company, the Executive shall not
take any document, data, or other material of any nature containing
or pertaining to the proprietary information of the Company or any
of its affiliates.
6.2 RESTRICTION ON COMPETITION. The Executive agrees that if the
Executive were to become employed by, or substantially involved in,
the business of a competitor of the Company or any of its affiliates
during the period following the Severance Date, it would be very
difficult for the Executive not to rely on or use the Company's and
its affiliates' trade secrets and confidential information. Thus, to
avoid the inevitable disclosure of the Company's and its affiliates'
trade secrets and confidential information, and to protect such
trade secrets and confidential information and the Company's and its
affiliates' relationships and goodwill with customers, during the
Period of Employment and, if the Executive becomes entitled to any
Severance Benefit pursuant to Section 5.3(b), continuing through the
end of the Severance Period, the Executive will not directly or
indirectly through any other person engage in, enter the employ of,
render any services to, have any ownership interest in, nor
participate in the financing, operation, management or control of,
any Competing Business. For purposes of this Agreement, the phrase
"directly or indirectly through any other person engage in" shall
include, without limitation, any direct or indirect ownership or
profit participation interest in such enterprise, whether as an
owner, stockholder, member, partner, joint venturer or otherwise,
and shall include any direct or indirect participation in such
enterprise as an employee, consultant, director, officer, licensor
of technology or otherwise. For purposes of this Agreement,
"COMPETING BUSINESS" means a person or entity anywhere in the
continental United States and elsewhere in the world where the
Company and its affiliates engage in business, or, to the
Executive's knowledge on the Severance Date, reasonably anticipate
engaging in business, on the Severance Date (the "RESTRICTED Area")
that at any time during the Period of Employment has competed, or at
any time during the six (6) month period following the Severance
Date competes, with the Company or any of its affiliates in any
business related to research, development, manufacture, distribution
and sale of vitamins, minerals, health and nutritional supplements,
sports nutrition products, herbal teas and natural health and beauty
care products and such other businesses as the Company is engaged in
on the Severance Date. Nothing herein shall prohibit the Executive
from being a passive owner of not more than 2% of the outstanding
stock of any class of a corporation which is publicly traded, so
long as the Executive has no active participation in the business of
such corporation.
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6.3 NON-SOLICITATION OF EMPLOYEES AND CONSULTANTS. During the Period of
Employment and continuing through the later of the end of the Period
of Employment (as extended by any renewal period) and the second
anniversary of the Effective Date (the "RESTRICTED PERIOD"), the
Executive will not directly or indirectly through any other
individual or entity induce or attempt to induce any employee or
independent contractor of the Company or any of its affiliates to
leave the employ or service, as applicable, of the Company or such
affiliate, or in any way interfere with the relationship between the
Company or any such affiliate, on the one hand, and any employee or
independent contractor thereof, on the other hand.
6.4 NON-SOLICITATION OF CUSTOMERS. During the Restricted Period, the
Executive will not directly or indirectly through any other
individual or entity influence or attempt to influence customers,
vendors, suppliers, licensors, lessors, joint venturers, associates,
consultants, agents, or partners of the Company or any of its
affiliates to divert their business away from the Company or such
affiliate, and the Executive will not otherwise interfere with,
disrupt or attempt to disrupt the business relationships,
contractual or otherwise, between the Company or any affiliate of
the Company, on the one hand, and any of its or their customers,
suppliers, vendors, lessors, licensors, joint venturers, associates,
officers, employees, consultants, managers, partners, members or
investors, on the other hand; provided, a customer's purchase of
products from a future employer of the Executive shall not, by
itself and without any solicitation by the Executive, be considered
as diversion of business under this Section 6.4.
6.5 UNDERSTANDING OF COVENANTS. The Executive acknowledges that, in the
course of his employment with the Company and/or its affiliates and
their predecessors, he has become familiar, or will become familiar,
with the Company's and its affiliates' and their predecessors' trade
secrets and with other confidential and proprietary information
concerning the Company, its affiliates and their respective
predecessors and that his services have been and will be of special,
unique and extraordinary value to the Company and its affiliates.
The Executive agrees that the foregoing covenants set forth in this
Section 6 (together, the "RESTRICTIVE COVENANTS") are reasonable and
necessary to protect the Company's and its affiliates' trade secrets
and other confidential and proprietary information. The Executive
represents that he has carefully considered the Restrictive
Covenants, agrees to the reasonableness of the length of time, scope
and geographic coverage, as applicable, of the Restrictive
Covenants, and (iii) agrees that the Restrictive Covenants will
continue in effect for the applicable periods set forth above in
this Section 6, regardless of whether the Executive is then entitled
to receive severance pay or benefits from the Company. The Executive
agrees that the Restrictive Covenants do not confer a benefit upon
the Company disproportionate to the detriment of the Executive.
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6.6 ENFORCEMENT. The Executive agrees that the Executive's services are
unique and that he has access to Confidential Information.
Accordingly, the Executive agrees that a material breach by the
Executive of any of the Restrictive Covenants may cause immediate
and irreparable harm to the Company that would be difficult or
impossible to measure, and that damages to the Company for any such
injury would therefore be an inadequate remedy for any such breach.
Accordingly, the Executive agrees that if he materially breaches any
term of this Section 6, the Company shall be entitled, in addition
to and without limitation upon all other remedies the Company may
have under this Agreement, at law or otherwise, to obtain injunctive
or other appropriate equitable relief to restrain any such breach
upon a showing by the Company of the legal requirements to obtain
such relief. The Executive further agrees that the applicable period
of time any Restrictive Covenant is in effect following the
Severance Date, as determined pursuant to the foregoing provisions
of this Section 6, shall be extended by the same amount of time that
Executive is in breach of any Restrictive Covenant.
7. WITHHOLDING TAXES. Notwithstanding anything else herein to the contrary,
the Company may withhold (or cause there to be withheld, as the case may
be) from any amounts otherwise due or payable under or pursuant to this
Agreement such federal, state and local income, employment, or other taxes
as may be required to be withheld pursuant to any applicable law or
regulation.
8. SUCCESSORS AND ASSIGNS. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations hereunder;
provided, however, that in the event of a merger, consolidation, or
transfer or sale of all or substantially all of the assets of the Company
with or to any other individual(s) or entity, this Agreement shall,
subject to the provisions hereof, be binding upon and inure to the benefit
of such successor and such successor shall discharge and perform all the
promises, covenants, duties, and obligations of the Company hereunder.
9. NUMBER AND GENDER. Where the context requires, the singular shall include
the plural, the plural shall include the singular, and any gender shall
include all other genders.
10. SECTION HEADINGS. The section headings of, and titles of paragraphs and
subparagraphs contained in, this Agreement are for the purpose of
convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation thereof.
11. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the state of California, without giving effect
to any choice of law or conflicting provision or rule (whether of the
state of California or any other jurisdiction) that would cause the laws
of any jurisdiction other than the state of California to be applied.
12. SEVERABILITY. It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable under any present or future law, and
if the rights and obligations of any party under this Agreement will not
be materially and adversely affected thereby, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability
of such provision in any other jurisdiction, and to this end the
provisions of this Agreement are declared to be severable; furthermore, in
lieu of such invalid or unenforceable provision there will be added
automatically as a part of this Agreement, a legal, valid and enforceable
provision as similar in terms to such invalid or unenforceable provision
as may be possible. Notwithstanding the foregoing, if such provision could
be more narrowly drawn (as to geographic scope, period of duration or
otherwise) so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
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13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This Agreement
supersedes all prior and contemporaneous agreements of the parties hereto
that directly or indirectly bears upon the subject matter hereof. There
are no representations, warranties, or agreements, whether express or
implied, or oral or written, with respect to the subject matter hereof,
except as expressly set forth herein.
14. MODIFICATIONS. This Agreement may not be amended, modified or changed (in
whole or in part), except by a formal, definitive written agreement
expressly referring to this Agreement, which agreement is executed by both
of the parties hereto.
15. WAIVER. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to
have granted such waiver.
16. ARBITRATION. Except as provided in Section 6.6, Executive and the Company
agree that any controversy arising out of or relating to this Agreement,
its enforcement or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, or
any other controversy arising out of Executive's employment, including,
but not limited to, any state or federal statutory claims, shall be
submitted to arbitration in San Francisco, California, before a sole
arbitrator (the "ARBITRATOR") selected from the American Arbitration
Association, as the exclusive forum for the resolution of such dispute;
provided, however, that provisional injunctive relief may, but need not,
be sought by either party to this Agreement in a court of law while
arbitration proceedings are pending, and any provisional injunctive relief
granted by such court shall remain effective until the matter is finally
determined by the Arbitrator. Final resolution of any dispute through
arbitration may include any remedy or relief which the Arbitrator deems
just and equitable, including any and all remedies provided by applicable
state or federal statutes. At the conclusion of the arbitration, the
Arbitrator shall issue a written decision that sets forth the essential
findings and conclusions upon which the Arbitrator's award or decision is
based. Any award or relief granted by the Arbitrator hereunder shall be
final and binding on the parties hereto and may be enforced by any court
of competent jurisdiction. The parties acknowledge and agree that they are
hereby waiving any rights to trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other in
connection with any matter whatsoever arising out of or in any way
connected with this Agreement or Executive's employment. The parties agree
that the Company shall be responsible for payment of the forum costs of
any arbitration hereunder, including the Arbitrator's fee, but that each
party shall bear its own attorneys fees and other expenses.
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17. NOTICES. Any notice provided for in this Agreement must be in writing and
must be either personally delivered, transmitted via telecopier, mailed by
first class mail (postage prepaid and return receipt requested) or sent by
reputable overnight courier service (charges prepaid) to the recipient at
the address below indicated or at such other address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party. Notices will be deemed to have been given
hereunder and received when delivered personally, when received if
transmitted via telecopier, five days after deposit in the U.S. mail and
one day after deposit with a reputable overnight courier service.
(i) if to the Company, to:
c/o Country Life LLC
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq. and Xxxx X. Xxxxxxx, Esq.
(ii) if to Executive, to Executive's last known address as reflected
on the books and records of the Company.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which together shall
constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon
as the signatories. Photographic copies of such signed counterparts may be
used in lieu of the originals for any purpose.
19. LEGAL COUNSEL; MUTUAL DRAFTING. Each party recognizes that this is a
legally binding contract and acknowledges and agrees that they have had
ample opportunity to consult with legal counsel of their choice. Each
party has cooperated in the drafting, negotiation and preparation of this
Agreement. Hence, in any construction to be made of this Agreement, the
same shall not be construed against either party on the basis of that
party being the drafter of such language. The Executive agrees and
acknowledges that he has read and understands this Agreement, is entering
into it freely and voluntarily, and has been advised to seek counsel prior
to entering into this Agreement.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the Effective Date.
"COMPANY"
Allergy Research Group, Inc.,
a Florida corporation
By: /S/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xx. Xxxxxxx X. Xxxxxx
Title: Chairman, Chief Executive Officer
and Chief Financial Officer
"EXECUTIVE"
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
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