Exhibit 10.4 WHOLE LIVING, INC.
November 11, 2005
Xxxxxxx X. Xxxxxxx
000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
Re: Employment Agreement
Dear Xx. Xxxxxxx:
This letter is to confirm our mutual understanding with respect to your
employment by Whole Living, Inc., a Utah corporation (the "Company"). The
terms and conditions set forth in this letter shall be referred as the
"Agreement." In consideration of the mutual promises and covenants contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby mutually acknowledged, we have agreed as
follows:
1. Employment.
(a) The Company will employ you, and you agree to be employed by the
Company, as its Vice President, to have and perform such responsibilities,
duties and authority as are customary to such position. You agree to devote
your full business time and energies to the business and affairs of the
Company and to the fulfillment of your obligations to the Company hereunder.
You agree to perform you duties faithfully, diligently and competently, using
your best efforts to further the business of the Company. Your duties shall
include but are not limited to marketing and communications, product creation
and creative writing.
2. Term of Employment.
(a) Your employment shall commence on the date of this Agreement and
shall continue until the first anniversary hereof (the "Term"). The Term of
your employment shall be automatically extended for two successive one-year
periods, unless either you or the Company gives written notice to the other at
least three (3) months prior to the expiration of the Term that such party
elects not to extend the Term of this Agreement. Each one-year extension
shall also be referred to as the "Term". Notwithstanding the foregoing, your
employment with the Company may be terminated prior to expiration of the Term
as follows:
(i) at the will of the Company for any reason provided, the
Company provides you with written notice of its decision to terminate your
employment no less than thirty (30) days prior to the effective date of such
termination. You acknowledge that your employment with the Company is and
shall continue to be at-will, as defined under applicable law;
(ii) immediately upon your death;
(iii) by the Company if you are unable due to illness, accident
or other physical or mental incapacity, with or without reasonable
accommodation, to perform the services provided for hereunder for an aggregate
of thirty (30) business days within any period of ninety (90) consecutive
business days during the term hereof;
(iv) by the Company for "Cause" (as defined below), provided
that termination solely for Cause shall follow written notice to you of such
event constituting Cause and your failure to cease the violative acts or
omissions and cure any consequences of such acts or omissions within thirty
(30) days following such notice;
(v) by you based upon any reason provided, that the termination
shall only be effective if you have given written notice to the Company no
less than ninety (90) days prior to the effective date of such termination.
Following termination of your employment with the Company, you shall be
entitled to severance benefits equal to the amount of your base salary for a
ninety (90) day period to be paid over the ninety (90) day period in biweekly
increments.
(b) For the purposes of this Agreement:
(i) "Cause" shall mean (A) any action or omission by you
involving willful misconduct or gross negligence; (B) your conviction of a
felony, either in connection with the performance of your obligations to the
Company or which conviction otherwise shall adversely affect your ability to
perform such obligations, or shall materially adversely affect the business
activities or goodwill of the Company; (C) willful disloyalty, deliberate
dishonesty, breach of fiduciary duty or any act of fraud or embezzlement; or
(D) your breach of the terms of this Agreement; and
(c) Upon termination of your employment with the Company, you shall
cease holding yourself out to third parties as an employee of the Company or
otherwise take any action on behalf of the Company. You shall also deliver to
the Company any property of the Company which may be in your possession
including products, materials, memoranda, notes, records, reports or other
documents in any medium whatsoever.
3. Compensation.
(a) During the period of your employment with the Company
hereunder, the Company shall pay you a monthly salary of seven thousand eight
hundred fifty dollars ($7,850.00) paid in biweekly increments. In addition to
your annual base salary, and as
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additional consideration for the releases contained herein, you shall receive
upon execution of this Agreement three hundred thousand (300,000) shares of
the Company's restricted common stock.
4. Benefits and Reimbursements. While you are employed by the
Company hereunder, you will be entitled to participate in the employee health
insurance plan and programs of the Company to the extent that you meet the
eligibility requirements for each individual plan or program. This benefit
will be paid by the Company for the term of your employment. The Company
provides no assurance as to the adoption or continuance of any particular
employee benefit plan or program, and your participation in any such plan or
program shall be subject to the provisions, rules and regulations applicable
thereto.
5. Protected Information. You shall at all times prior to and
following any termination of your employment with the Company for any reason
maintain in confidence any information disclosed to or developed by you during
the course of performing services for the Company and which is not generally
available to the public (other than as a result of your wrongful disclosure),
including but not limited to, information and facts concerning the Company
financial status, business plans, financing sources and terms, potential
transactions, current and potential client/borrower lists, Company,
techniques, vendors, licensors, investors, marketing plans or any other
proprietary information of the Company or of any third party provided to you.
You shall not use or disclose any of such information except in the course of
the performance of your duties for the Company.
6. Indemnification.
(a) The Company agrees to defend, indemnify and hold you harmless from
any and all losses, claims, suits, causes of action, injuries, liabilities or
damages and associated expenses of any kind and nature whatsoever which shall
include, but not be limited to, reasonable attorney's fees and other
litigation expenses, arising from or relating in any way to your fulfillment
of your duties and obligations under this Agreement and any action brought
against the Company which does not involve or arise from your willful
misconduct or gross negligence.
(b) You agree to defend, indemnify and hold the Company harmless from
any and all losses, claims, suits, causes of action, injuries, liabilities or
damages, and associated expenses of any kind and nature whatsoever which shall
include, but not be limited to, reasonable attorney's fees and other
litigation expenses, arising from or relating in any way to your willful
misconduct or gross negligence in the performance of your duties hereunder or
otherwise
(c) The parties hereto agree that if such a claim is made, such an
action commenced or such a demand made against you and/or the Company, then
either party shall notify the other, in writing, of the action, complaint or
demand in order that the responsible party under this section may present its
defense in a timely fashion against the action, demand or claim. The
responsible party under this section shall keep the other party fully
informed, at the responsible party's expense, of its defense of the claim,
complaint or
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demand which notice shall include, but is not limited to, providing the other
party with copies of any written correspondence, pleadings or any and all
administrative or judicial decisions. Each party agrees to reasonably
cooperate with the other to whatever extent is reasonably necessary to protect
or defend against the claim, complaint or demand. Said cooperation shall
include, but is not limited to, fully agreeing to execute any and all
documents necessary to defend against any claim, complaint or demand.
(d) In addition to the indemnifications contained herein, each party
shall promptly inform the other of any suspected actions or activities of
third parties that would result in the Company having any claim, demand or
cause of action against such third party and, with respect to such activities
as are suspected, the Company shall have the right, but not the obligation, to
institute an action against such third party.
7. Negative Information.
The parties agree at all times prior to and following any
termination of your employment with its Company for any reason that they will
not disseminate any negative information, statements or representations about
the other or any employee, agent or representative of the other and each will
employ such efforts as are reasonable to protect anyone else from making
derogatory statements about the other. Upon written notification of any
violation of the promises contained in this paragraph, the violating party
agrees to take immediate action to stop the violation and provide a written
report to the non-violating party containing a detailed description of what
action was taken to stop the violation and what if any remedial action was
taken by the violating party. Said written report shall be delivered to the
non violating party within ten (10) days of the request of notification of
violation by the other party.
8. Release.
For good and valuable consideration, receipt of which is hereby
acknowledged, you acting on behalf of yourself, and your successors and
assigns, do hereby fully and forever release and discharge the Company and its
respective subsidiaries, affiliates, divisions, components, successors and
assigns, their employees, officers, directors, agents, and attorneys, from any
and all claims, demands, obligations, liabilities, indebtedness, breaches of
duty, costs or attorney fees, or any relationship, acts, omissions,
misfeasance, cause or causes of action, sums of money, accounts, and promises
of every type, kind, nature, description or character, and irrespective of
how, why or by reason of what facts, which could, might, or may be claimed to
exist, of whatever kind or name, known or unknown, suspected or unsuspected,
liquidated or unliquidated, each as though fully set forth herein at length,
which in any way arise out of, are connected with, or related to any
professional, commercial or business dealings or relationship between the
parties hereto up to and including the date of this release. Nothing in this
paragraph is intended to or shall release or waive any right or obligation of
the parties to this Agreement arising under this Agreement.
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9. Noncompetition.
(a) We each recognize and acknowledge the highly competitive nature of
the industry in which the Company conducts its business and the proprietary
nature of such business activities. You acknowledge and agree that a business
will be deemed competitive with the Company and constitute a "Competitive
Business" if, during the period during which the covenant not to compete
contained in this Section 9 applies, that business includes, as one of its
primary businesses, any of the Competitive Activities.
For such purposes, "Competitive Activities" shall refer to any of the
following activities:
Any business operating anywhere in the world, that engages in
Competitive Activities which contribute or constitute more than fifty percent
(50%) of any entity's (including a corporation, limited liability company,
partnership, joint venture or any division, subsidiary or partner thereof)
gross revenues. For example, the sale of whole food products by a subsidiary
of a multilevel marketing company would constitute the primary business of
that subsidiary if the sale of whole food products constituted more than fifty
percent (50%0 of that subsidiary's gross sales. Under this example, you could
work for the multilevel marketing company but not for its subsidiary selling
whole food products unless that subsidiary's revenue constitutes more than
fifty percent (50%) of the consolidated gross revenue of the multilevel
marketing company and its subsidiary.
For such purposes, "Competitive Activities" shall refer to any of the
following activities.
The local, regional or worldwide manufacturing, marketing and selling of
any and all forms of whole food products and essential oils comparable or in
any way similar to products manufactured, marketed or sold by the Company or
products that are being developed, tested or prepared for sale, manufacturing
or marketing by the Company (including but not limited to "Pulse" products and
variations thereof).
(b) During your employment with the Company and during the
Post-Termination Period (as defined below), you shall not:
(i) for yourself or on behalf of or through any other person or
entity, directly or indirectly, either as principal, agent, stockholder,
employee, consultant, representative or in any other capacity, own manage,
operate, control, or be employed by, either as an employee or independent
contractor, or otherwise associate in any business-related manner with, engage
in or have a financial interest in any Competitive Business;
(ii) either individually or on behalf of or through any other
person, directly or indirectly, solicit, entice or persuade or attempt to
solicit, entice or persuade any employee or consultant to the Company to
leave the services of the Company for any reason; or
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(iii) either individually or on behalf of through other person,
directly or indirectly, solicit, divert or appropriate or attempt to solicit,
divert or appropriate, for the purposes of competing with the Company, any
customer, distributor, associate, client or vendor of the Company or otherwise
interfere with any prospective business opportunity of the Company that
represent a Competitive Activity.
(c) "Post-Termination Period" means (i) the period of thirty-six (36)
consecutive months immediately following the termination of your employment
for cause or termination of your employment by you pursuant to paragraph
2(a)(iv) or 2(a)(v) above; (ii) the period of twenty-four (24) consecutive
months immediately following the termination of your employment by the Company
pursuant to paragraph 2(a)(i) or 2(a)(iii) above. Notwithstanding the above,
the post-termination period shall cease immediately upon the cessation of all
business by the Company
(d) You further acknowledge that (i) the type of activities which are
prohibited by this Agreement are narrow and reasonable in relation to the full
set of skills and qualifications that you possess and afford you sufficient
latitude to earn your livelihood in non-prohibited activities during any
Post-Termination Period, (ii) the geographical scope of the provisions of this
Agreement is reasonable, legitimate and fair to you, (iii) the scope and
character of the competitive activities restricted in this Agreement fairly
and accurately reflect the activities which you perform for the Company, (iv)
your performance of services for the Company and undertakings in this Section
8 represent material consideration for the Company's execution of this
Agreement, (v) and the restrictions are reasonably necessary to protect the
legitimate interests of the Company, including without limitation the
Company's protection of confidential information, customer relationships and
goodwill.
9. Disclosure to Future Employers. You agree that you will provide
and that the Company may provide, in its discretion, a copy of the covenants
contained in Sections 6 and 8 above to any business or enterprise which you
may directly or indirectly own, manage, operate, join, control or in which you
participate in the management, operation, financing, or control, or with which
you may be connected as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise.
10. No Conflicting Agreements. You hereby represent and warrant that
you have no commitments or obligations inconsistent with this Agreement.
11. Additional Representations. You make the following additional
warranties and representations that are an inducement upon which the Company
is relying to enter into this Agreement.
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(a) All information provided to the Company by you is accurate and
complete.
(b) The execution of this Agreement by you will not violate or
constitute a breach of the terms of any other agreement or commitment to which
you are a party.
(c) You acknowledge that no representations, promises, guarantees or
warranties of any kind are made or have been made by us or by any person
representing himself or herself to be the Company's authorized agent or
representative to induce you to execute this Agreement except as specifically
set forth herein.
12. General.
(a) Notices. All notices, requests, consents and other communication
hereunder shall be in writing, shall be addressed to the receiving party at
any address designated by the party in writing, and shall be either (i)
delivered by hand, (ii) sent by nationally recognized overnight courier
service, (iii) sent by facsimile transmission or (iv) sent by registered mail,
return receipt requested, postage prepaid and a copy thereof sent by ordinary
mail on the same day. All notices, requests, consents and other
communications hereunder shall be deemed to have been given either (x) upon
delivery if by hand, by facsimile transmission or by overnight courier or (y)
on the third business day following mailing if sent by registered mail.
(b) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure there from granted, only by
written document executed by the party entitled to the benefits of such terms
or provisions and, if such party is the Company, by the Company. No such
waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement,
whether or not similar. Each such waiver or consent shall be effective only
in the specific instance and for the purpose for which it was given, and shall
not constitute a continuing waiver or consent.
(e) Assignment. The Company may assign its rights and obligations
hereunder to any person or entity who succeeds to all or substantially all of
the Company's business as part of a sale of the business of the Company. Your
rights and obligations under this Agreement are personal and may not be
assigned by you.
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(f) Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by
the law of the State of Utah, without giving effect to the conflict of law
principles thereof.
(g) Severability. The parties intend this Agreement to be enforced
as written. If, however, any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a duly authorized court
having jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than those as to which it
is so declared illegal or unenforceable, shall not be affected thereby, and
each portion and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
(h) Injunctive Relief. You hereby expressly acknowledge that any
breach or threatened breach of any of the terms or conditions set forth in
Sections 5 or 6 of this Agreement will result in substantial, continuing and
irreparable injury to the Company. Therefore, you agree that, in addition to
any other remedy that may be available to the Company, the Company shall be
entitled to injunctive or other equitable relief by a court of appropriate
jurisdiction in the event of any breach or threatened breach of the terms of
Sections 5 or 6 of this Agreement.
(i) Jurisdiction. You and the Company agree that any and all
disputes, actions, or proceedings arising out of or relating to this Agreement
or in any way connected to your employment with the Company shall be litigated
solely and exclusively in the United States District Court for the District of
Utah, Central Division. You and the Company irrevocably consent to the
jurisdiction and venue of any such court and waive any argument that venue in
such forums in not convenient.
(j) Expenses. Should any party breach this Agreement, in addition to
all other remedies available at law or in equity, such party shall pay all of
the other party's costs and expenses resulting there from and/or incurred in
enforcing this Agreement, including legal fees and expenses.
(k) Interpretation. The parties hereto acknowledge and agree that:
(i) each party and its or his counsel reviewed and negotiated the terms and
provisions of this Agreement and have contributed to its revision; (ii) the
rules of construction to the effect that any ambiguities are resolved against
the drafting party shall not be employed in the interpretation of this
Agreement; and (iii) the terms and provisions of this Agreement shall be
construed fairly as to all parties hereto and not in favor of or against any
party, regardless of which party was generally responsible for the preparation
of this Agreement.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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If the foregoing accurately sets forth our agreement, please so indicate
by signing and returning to us the enclosed copy of this letter, where upon
this letter shall become a binding agreement between us as of the date first
written above.
[Signature Page Follows]
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Very truly yours,
WHOLE LIVING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Its: President
Acknowledged and Agreed:
/s/ Xxxxxxx X. Xxxxxxx
___________________________
Xxxxxxx X. Xxxxxxx
Dated: _____________________
[Signature Page to Employment Agreement]
