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EX 10.11
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 31 day of October, 1997, by and between INCON
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), XXXX X. XXXXXX (the
"Executive"), and BIONUTRICS, INC., a Nevada corporation ("Bionutrics").
RECITALS:
A. The Executive is currently serving as chief executive officer and
president of the Company.
B. Pursuant to the terms of an Agreement and Plan of Merger (the
"Merger Agreement") dated as of October 31, 1997, among the Company, its
principals, Bionutrics, its wholly owned subsidiaries Nutrition Technology
Corporation and BNRX Inc., Delaware corporations, the Company will become a
wholly owned subsidiary of Nutrition Technology Corporation, a Delaware
Corporation.
C. The parties hereto desire to enter into this Agreement to establish
the terms and conditions of the continued employment relationship between the
Executive and the Company following, the Closing (as defined in the Merger
Agreement).
AGREEMENT:
In consideration of the recitals, mutual promises and respective
covenants and agreements of the parties contained herein, the parties agree as
follows~
1. EMPLOYMENT.
The Company hereby agrees to continue to employ the Executive as its
President and Chief Executive Officer ("CEO"), and the Executive hereby agrees
to continue to serve the Company in such capacity, upon the terms and conditions
set forth in this Agreement. The period of the Executive's employment with the
Company pursuant to this Agreement shall be referred to as the "Employment
Period". The Executive's employment by the Company shall terminate as of the
last day of the Employment Period.
2. AUTHORITY AND DUTIES.
(a) Authority. The Executive shall have the duties and authority as are
consistent with, and customarily associated with, the office of President and
CEO for business organizations similar to the Company in scope and purpose, and
such other reasonable duties and authority as may be determined from time to
time by the Board of Directors of the Company (the "Board").
(b) Duties. During the Employment Period, the Executive agrees to
devote his full time and all his skill, knowledge and working time (vacation
time and absence for sickness or disability excepted) to the business of the
Company and to the betterment of the Company.
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(c) Conflicts. Nothing herein shall be construed to prohibit the
Executive from serving on boards or committees of other companies for a profit
or non-profit and investing his assets in such form or manner as he shall wish;
provided, that no such service or investment(s) shall conflict or interfere with
the duties and responsibilities of his office or with his loyalty to the
Company. The foregoing notwithstanding, the Company acknowledges that the
Executive has a current equity interest in, and performs services for, a
business entity known as InCon Industries, Inc. ("III"). Provided that the
Executive does not thereby violate any provision of this Agreement, the
Executive may (i) continue to provide service to III not to exceed on average
four hours per week for a period that shall end on the date three months from
the date of this Agreement (following which the Executive shall have no
management or operational involvement in III), and (ii) retain a passive
investment interest in III and serve on its board of directors.
3. COMPENSATION AND BENEFITS.
(a) Base Salary. During the Employment Period, the Company shall pay
the Executive a base salary at an annual rate (the "Base Salary") of $200,000
payable with the same frequency and on the same basis that the Company normally
makes salary payments to other executive personnel ("Payment Practices"), and
subject to all applicable deductions or reductions therein made pursuant to the
Executive's elections under the Company's compensation and/or benefit plans or
programs. The payment of the Base Salary shall not be deemed the exclusive
compensation of the Executive, and shall not prevent the Executive from
participating in any other compensation or benefit plan of the Company for which
he qualifies or is designated to qualify by the Board.
(b) Incentive Compensation. In addition to any other compensation to
which the Executive may be entitled hereunder, the Executive shall participate
in an annual incentive plan ("AIP") if pre-tax profits determined in accordance
with GAAP (except that to pre-tax profits so calculated shall be added the
deduction, if any, for amortization of good will acquired as a result of
allocation of the purchase price under the Merger Agreement) for the fiscal year
in question for the Company and Rye Investments, Ltd., a British Virgin Islands
corporation owned by the shareholders of the Company, or the successor to the
business of Rye Investment, Ltd., acquired by Bionutrics exceed the amount
(the"Hurdle") equal to (i) $3 million, plus (ii) interest at 18% per annum from
date of contribution on capital contributed by Bionutrics to the business of the
Company and Rye Investments, Ltd. plus (iii) the prior cumulative annual
shortfall if any in meeting the Hurdle. The AIP shall be equal to 10% percent of
the excess if any of pre-tax profits over the Hurdle, and shall be payable
during the term of employment and in respect of two fiscal years after
termination of employment. If the Employment Period terminates on a date other
than the last day of a fiscal year, the Executive's share of the AIP, if any,
for the corresponding portion of the third fiscal year after termination of the
Employment Period shall be calculated pro rata based upon the elapsed portion of
the fiscal year prior to termination. Payments of AIP shall be made within 90
days after the close of the Company's fiscal year.
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(c) Vehicle. The Company shall provide the Executive the use of a
vehicle of his choice provided that its cost to the Company shall be no more
than $750 per month for the Employment Period.
(d) Vacation. The Executive shall be entitled to 20 business days of
vacation per calendar year, which shall be earned on a pro-rata basis throughout
each such year. The Executive may take vacation days in advance of their accrual
upon the prior consent of the Company. Upon the termination of the Employment
Period, the Company shall pay the Executive for accrued but unused vacation days
at the rate of the Base Salary then in effect. The Executive shall also be
entitled to all paid holidays given by the Company generally to its employees.
The Executive may carry from one calendar year to the next a maximum of 15
unused vacation days.
(e) Expenses. During the Employment Period, the Executive shall be
entitled to receive reimbursement for all reasonable expenses incurred by the
Executive in performing services hereunder, including expenses of travel and
living expenses while away from home on business or at the request of and in the
service of the Company; provided, that such expenses are properly accounted for
by the Executive to the Company.
(f) Other Benefits. The Executive and his family shall be entitled to
participate in each of the Company's employee benefit plans and arrangements,
including medical insurance and disability and such additional benefit plans and
arrangements as are provided to executives of Bionutrics at the Executive's
level and shall be entitled to continued life insurance coverage during the
Employment Period.
(g) Stock Options. Executive and Bionutrics shall execute a Stock
Option Agreement in the form attached hereto as Exhibit A, whereby Executive
shall be provided the option to acquire up to 100,000 shares of the common stock
of Bionutrics at the market value per share as determined by the Board on the
date of grant. The date of grant shall if practicable under Bionutrics 1997
stock option plan be as of October 22, 1997, the date of board approval of the
merger agreement or, if not practicable in the judgment of Bionutrics within ten
days after the merger. The Executive's interest in the options described in the
Stock Option Agreement shall vest one-third on each of the first, second and
third anniversaries of the commencement of the Employment Period.
4. TERMINATION EVENTS.
(a) The Employment Period may be terminated by the Company as of the
respective dates set forth in Sections 4(a)(i)-(iii), and the Company shall pay
the Executive within thirty 30 days of the date of such termination, in full
satisfaction of all obligations by the Company to the Executive under this
Agreement, an amount equal to the sum of (x) in the case of a termination
pursuant to Section 4(a)(i), (ii) or (iii), all unreimbursed expenses payable as
provided in accordance with Section 3(e) above, (y) in the case of a termination
pursuant to Section 4(a)(i), (ii) or (iii), all Base Salary earned through the
last day of the Employment Period, and (z) in the
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case of a termination pursuant to Section 4(a)(i) or (ii), the Executive's share
of the AIP Bonus, if any, earned through the last day of the Employment Period:
(i) By the Death of the Executive. The date of death of the
Executive shall be the date of termination of the Employment Period.
(ii) By the Disability of the Executive. The Company may
terminate the Employment Period on the date it is determined that the Executive
suffers from a physical or mental disability that renders him unable to continue
performing his duties under this Agreement. The Executive shall be deemed to be
so disabled if either (i) a physician selected according to the mutual
recommendation of a physician nominated by the Company and the Executive's
personal physician advises the Company that the Executive's physical or mental
condition will render the Executive unable to perform his duties on a
substantially full-time basis for a period exceeding six three consecutive
months, or (ii) due to a physical or mental condition, the Executive has not
substantially performed his duties hereunder on a substantially full-time basis
for a period of four and one-half consecutive months or, in each case, for six
months in any 12-month period.
(iii) By the Company for Cause. The Company may terminate the
Employment Period at any time for "cause", which shall mean (i) a material
default or breach by the Executive of his obligations under Section 5 of this
Agreement, or (ii) an act or acts of dishonesty or moral turpitude that are
materially injurious to the Company, financially or otherwise, (iii) willful and
persistent inattention to the services and duties required of the Executive
under this Agreement after notice and Executive's failure to cure within 30 days
or (iv) conviction of any felonious criminal act. Upon the happening of one of
the above-mentioned events, the Company may give the Executive a notice of
termination specifying the reason(s) for the termination. The date on which such
notice is provided to the Executive shall be the date of termination of the
Employment Period. No act or omission on the part of the Executive shall be
deemed willful if it is done by the Executive in good faith and upon the
reasonable belief that such act or omission was in the best interest of the
Company.
(b) The Company may at any time, or the Executive may at least 36
months after the closing under the Merger Agreement, terminate the Employment
Period upon six months' written notice to the Executive or Company as the case
may be (the "Notice Period") with or without cause, provided that the Executive
may, at least 12 months after such closing, terminate the Employment Period upon
six months' notice if the Board of the Company substantially reduces his
responsibilities as CEO and fails within 30 days of notice to substantially
restore such eliminated responsibilities. The Company shall have the option of
requiring the Executive to continue performing services during the Notice Period
or to prohibit the Executive from performing such services. In either case the
effective date of termination shall be the date that is six months after the
date of the termination notice. In the event of termination of the Employment
Period pursuant to this Section 4(b), the Company shall pay the Executive in
addition to AIP (i) all unreimbursed expenses payable as provided in accordance
with Section 3(e), (ii) all Base Salary earned through the last day of the
Employment Period and (iii) monthly
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severance pay for 24 months equal to 1/12th of the Executive's Base Salary as of
the commencement of Notice Period.
(c) The Executive may, during the 36-month period after the Closing,
terminate the Employment Period upon 30 days' written notice, in which case the
Executive shall receive the compensation and benefits set forth in Section 3(a),
(c), (d), (e) and (f) hereunder to which the Executive is entitled through the
date of termination.
5. COVENANT NOT TO COMPETE.
(a) Interests to be Protected. The parties acknowledge that during the
term of the Executive's employment with the Company, the Executive will perform
essential services for the Company. The Executive will be exposed to, have
access to, and be required to work with, a considerable amount of the Company's
confidential information. The parties expressly recognize that should the
Executive compete with Company in any manner whatsoever (as defined in Section
5(b) below), it could seriously impair the good will and diminish the value of
the Company's business. The parties acknowledge that this covenant has an
extended duration; however, they agree that this covenant is reasonable and it
is necessary for the protection of the Company, its stockholders and employees.
For these and other reasons, and the fact that there are many other employment
opportunities available to the Executive if the Employment Period should
terminate for any reason, the Executive stipulates that the following
restrictive covenants are fair and reasonable and are freely, voluntarily and
knowingly entered into. Furthermore, each party was given the opportunity to
consult with independent legal counsel before entering into this Agreement.
(b) Non-Competition. During the Employment Period and for the period
ending 24 months after termination of the Employment Period, in the case of
clause (i) and 36 months after such termination in the case of clause (ii), the
Executive shall not (whether directly or indirectly, as owner, principal, agent,
director, officer, manager, employee, partner or in any other capacity) (i)
compete in any manner with the Company in any line of business in which it is
engaged as of the termination of the Employment Period or if pursuant to a plan
adopted during the Employment Period during the 24-month period following such
termination or in any line of business the Executive is so notified by the
Company during the Employment Period that the Company or Rye intends to pursue
during such 24-month period or (ii) solicit or accept business from any person
who during the preceding 36 months was a customer of the Company or Rye,
provided that the foregoing shall not apply if the Company is in default of its
obligations pursuant to Section 3(b) to pay AIP benefits or in default of its
obligations to make payments to the Executive pursuant to Section 4(a), (b) or
(c).
(c) Equitable Relief. In the event a violation of any of the
restrictions contained in this Section 5 is established, the Company shall be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits and other benefits arising from
such violation, which right shall be cumulative and in addition to any other
rights or remedies to which the Company may be entitled. In the event of a
violation of any
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provision of Section 5(b) of this Agreement, the period for which those
provisions would remain in effect shall be extended for a period of time equal
to that period beginning when such violation commenced and ending when the
activities constituting such violation are finally terminated in good faith.
(d) Restrictions Separable. If the scope of any provision of this
Section is found by a court to be too broad to permit enforcement to its full
extent, such provision shall be enforced to the maximum extent permitted by law.
The parties agree that the scope of any provision of this Section 5 may be
modified by a judge in any proceeding to enforce this Agreement, so that such
provision can be enforced to the maximum extent permitted by law. Each and every
restriction set forth in this Section is independent and separable from the
others, and no such restriction shall be rendered unenforceable by virtue of the
fact that, for any reason, any other or others of them may be unenforceable in
whole or in part.
6. ARBITRATION.
Any disputes or controversies arising under this Agreement shall be
resolved through an arbitration proceeding that shall be held in Chicago,
Illinois, in accordance with the rules of the American Arbitration Association
by an arbitrator selected by the Arbitration Committee of such Association. The
decision rendered by such arbitrator shall be final and binding, and judgment on
such decision may be entered by either party in the highest court, state or
federal, having jurisdiction. The parties stipulate that the arbitration
provisions hereof shall be a complete defense to any suit, action or proceeding
instituted in any federal, state or local court before any administrative
tribunal with respect to the subject matter arbitrated. The cost and expense of
arbitration shall be paid by the party to whom the decision is adverse as
determined by the arbitrator.
7. NO CONFLICTS.
The Executive represents, warrants and covenants that he is not a party
to or bound by any consulting, non-competition, non-solicitation or
confidentiality agreement or the like that would in any manner conflict or
interfere with the Executive's ability to fulfill his duties under this
Agreement.
8. SUCCESSORS AND ASSIGNS.
This Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees provided that the Executive may not assign his obligations
under this Agreement without the prior written consent of the Company.
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9. NOTICES.
For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be
deemed sufficient if sent by certified mail, return receipt requested, to the
Executive's residence in the case of the Executive or to the Bionutrics
principal office in the case of the Company or Bionutrics.
10. MISCELLANEOUS.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
the Executive and another officer specifically designated by the Board. No
waiver by either party hereto of, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement.
11. GOVERNING LAW,
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Illinois.
12. VALIDITY.
The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all together shall constitute one
and the same instrument.
14. CONDITION PRECEDENT.
This Agreement shall not be effective until the closing under the
Merger Agreement and the effectiveness of the merger contemplated therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INCON TECHNOLOGIES, INC.
By: /s/Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
EXECUTIVE
/s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
BIONUTRICS, INC.
By: /s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President
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