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EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made in New York, New York
as of the 7th day of May 1999, between Twin Laboratories Inc. ("Company"),
having its executive offices and principal place of business in Hauppauge, New
York, and Xxxxxxx X. Xxxxxxx, the undersigned individual ("Executive").
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements hereinafter set forth, the Company and Executive agree as follows:
1. Agreement Term.
The term of this Agreement shall be the approximate
three-year period commencing as of May 7, 1999 and ending on May 6, 2002 (the
"Agreement Term"); provided, however, that the Agreement Term shall be renewed
automatically for successive additional two-year periods ("Renewal Period") at
the end of such three-year period and at the end of each such two-year Renewal
Period, unless, no later than 180 days prior to any such renewal date, either
the President of the Company or the Executive gives written notice to the other
that the Agreement shall not be so renewed.
2. Employment.
(a) Employment by the Company. Executive agrees to be
employed by the Company for the Agreement Term upon the terms and subject to the
conditions set forth in this Agreement.
(b) Performance of Duties. Throughout the Agreement
Term, Executive shall serve as President of the Health and Natural Food Store
Division of the Company and shall have such duties, powers and responsibilities
that are commensurate with his position or as may be assigned by the Board of
Directors ("Board") of Company or the President of Company from time to time
provided such assigned duties are commensurate with his position. In addition,
Executive agrees that he will serve in any similar capacity on behalf of any
existing or future subsidiary or division as is reasonably requested by the
Company. Executive shall faithfully and diligently perform Executive's duties in
conformity with the directions of the Company and serve the Company to the best
of Executive's ability. Executive shall devote Executive's entire working time
to the business and affairs of the Company, subject to vacations and sick leave
in accordance with Company policy.
(c) Place of Performance. During the Agreement Term,
Executive shall be based at American Fork, Utah. Executive understands and
acknowledges that his duties will require reasonable business travel from time
to time. Executive shall report to Xxxx Xxxxxxxx, President of the Company or
such other executive as may be designated by the Company from time to time.
3. Compensation and Benefits.
(a) Base Salary. For the period of May 6, 1999
through May 6, 2002 the Company agrees to pay to Executive for employment
hereunder a base salary ("Base
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Salary") at the annual rate of $ 265,000. Beginning January 1, 2000 and on
January 1 of each successive year of this Agreement, the Base Salary shall be
increased by a percentage equal to the percentage increase, if any, in the
Consumer Price Index for All Urban Consumers, All Items ("CPI") for the most
recent twelve month period for which such figures are then available as
promulgated by the Department of Labor Bureau of Statistics; provided however
that the Compensation Committee of the Board of Directors ("Board") of the
Company may, in its sole discretion, increase the Base Salary from time to time
by a sum greater than the CPI proportional increase.
(b) Benefits and Perquisites. Executive shall be
entitled to receive such benefits and perquisites as the Company and the
Executive shall mutually agree from time to time. Nothing in this Agreement
shall preclude the Company from terminating or amending from time to time any
employee benefit plan or program.
(c) Bonus. The Executive shall be entitled to receive
a cash bonus with respect to each calendar year of the Agreement of up to 100%
of Base Salary based on the Bonus Plan attached hereto as Exhibit A.
(d) Stock Options. Company shall cause Executive to
be granted options for 50,000 shares in the Company's common stock. The terms
and conditions of the stock option grant are set forth in the Company stock
option plan, a copy of which has been provided to Executive.
(e) Vacation. Executive shall be entitled to paid
vacation in accordance with the vacation policy of the Company.
(f) Automobile. The Company shall reimburse the
Executive for all reasonable expenses (including lease payment, liability
insurance, maintenance, repair and fuel costs) up to One Thousand Two Hundred
dollars ($1,200) per month incurred in operating an automobile for the
Executive's use in the performance of his duties hereunder and in the conduct of
the affairs of the Company, which automobile shall also be available to the
Executive for personal use.
(g) Standard Benefits. Medical Insurance; Dental
Insurance; Life Insurance; and Long Term Disability Insurance shall be provided
in accordance with the standard policies in effect for full time Company
employees, including all applicable eligibility and contribution requirements.
Company will reimburse Executive for any COBRA payment incurred prior to
eligibility in the Company Medical Insurance or Dental Insurance program.
(h) 401k Program. Executive shall be eligible for
participation in the Company's 401k plan, including the employer contribution
thereto, subject to the terms and conditions of the plan including the waiting
periods contained in the plan.
(i) Travel and Business Expenses. Upon submission of
itemized expense statements consistent with Company procedure, Executive shall
be entitled to reimbursement for reasonable travel and other reasonable business
expenses incurred by Executive in the performance of Executive's duties under
this Agreement in accordance with the policies and procedures established by the
Company from time to time for executives of a substantially similar level as
Executive.
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(j) Payment. Payment of all compensation and benefits
to Executive hereunder shall be made in accordance with Company policies in
effect from time to time, including normal payroll practices, and shall be
subject to all applicable employment and withholding taxes.
(k) Cessation of Employment. In the event Executive
shall cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
4. Indemnification. The Executive shall be indemnified by
Company against reasonable expenses, including attorney's fees, actually and
necessarily incurred by him in connection with the defense of any action, suit,
investigation or proceeding or similar legal activity, regardless of whether
criminal, civil, administrative or investigative in nature, to which he is made
a party by reason of his then being or having been an officer or director of the
Company on or subsequent to the date hereof, to the full extent permitted by
applicable law. Company shall (upon receipt by Company of an undertaking by or
on behalf of the Executive to repay the expenses described in this Section 4, if
it shall ultimately be determined that he is not entitled to be indemnified by
Company against such expenses) pay reasonable expenses, including attorney's
fees, incurred by the Executive in defending any threatened, pending or
completed action, suit or proceeding, or appearing as a witness at a time when
he has not been named as a defendant or respondent with respect thereto, in
advance of the final deposition of any such action, suit or proceeding. The
foregoing right of indemnification will not be deemed exclusive of any other
rights to which the Executive may be entitled under Company's or any of its
subsidiaries' respective Articles or Certificate of Incorporation or By-laws, as
in effect from time to time, or any agreement or otherwise.
5. Non-competition. During the Agreement Term, including any
unexpired portion thereof and any applicable Renewal Period, and, for a period
of twelve months, thereafter (provided, however, that if Executive is terminated
by the Company for any reason other than "Cause" as defined in paragraph 7(b)
hereinafter or if Executive resigns for Good Reason as defined in paragraph 7(d)
hereafter, than the provisions of this non-competition paragraph shall be for a
period of twelve months commencing with the date of termination or resignation,
whichever is applicable.) Executive shall not, directly or indirectly, own,
manage, operate, join, control, participate in, invest in or otherwise be
connected or associated with, in any manner, including as an officer, director,
employee, distribution, independent contractor, independent representative,
partner, consultant, advisor, agent, proprietor, trustee or investor, any
Competing Business located in any state or region (including foreign
jurisdictions) where the Company conducts business or is considering doing
business; provided, however, that ownership of 1% or less of the stock or other
securities of a corporation, the stock of which is listed on a national
securities exchange or is quoted on The Nasdaq Stock Market, shall not
constitute a breach of this Section 5, so long as Executive does not in fact
have the power to control, or direct the management of, or is not otherwise
associated with, such corporation.
For purposes hereof, the term "Competing Business" shall mean
any business or venture which is engaged, directly or indirectly, in (i) the
business of developing, manufacturing, marketing (including multi-level
marketing), selling and/or distributing (including wholesale distributing) of
vitamins, minerals, nutritional supplements (including, without limitation,
amino
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acids and proteins), herbal products, phytonutrients, herb teas or food bars,
(ii) the publication of related health, fitness or body-building publications,
(iii) any other business engaged in or being developed by the Company, or being
actively considered by management of the Company, or (iv) any other business
which is substantially similar to the whole or any significant part of the
business conducted by the Company.
6. No Solicitation.
(a) During the Agreement Term, including any
unexpired portion thereof and any applicable Renewal Period, and for a period of
one year thereafter, Executive shall not, directly or indirectly, including on
behalf of, for the benefit of, or in conjunction with, any other person or
entity, (i) solicit, assist, advise, influence, induce or otherwise encourage in
any way, any employee of the Company to terminate its relationship with the
Company for any reason, nor assist any person or entity in doing so, or employ,
engage or otherwise contract with any employee or former employee of the Company
in a Competing Business or any other business unless such former employee shall
not have been employed by the Company for a period of at least one year, (ii)
interfere in any manner with the relationship between any employee and the
Company or (iii) contact, service or solicit any existing clients, customers or
accounts of the Company on behalf of a Competing Business, either as an
individual on his own account, as an investor, or as an officer, director,
partner, joint venturer, consultant, employee, agent or salesman of any other
person or entity.
7. Termination of Employment.
(a) Termination or Resignation. The Company may
terminate Executive's employment for Cause (as hereinafter defined), in which
case the provisions of Section 7(b) shall apply. The Company may also terminate
Executive's employment in the event of Executive's Disability (as hereinafter
defined), in which case the provisions of Section 7(c) shall apply. The Company
may also terminate the Executive's employment for any other reason by written
notice to Executive, in which case the provisions of Section 7(e) shall apply.
If Executive's employment is terminated by reason of Executive's death or
retirement, the provisions of Section 7(b) shall apply. Executive may resign for
Good Reason (as hereinafter defined) in which case the provisions of Section
7(e) shall apply. No termination of this Agreement or resignation shall relieve
any party from liability for any breach of this Agreement or defeat or impair
the right of any party to pursue such relief as may otherwise be available to it
as a result of any breach of this Agreement or any term, provision or covenant
contained herein.
(b) Termination for Cause; Termination by Reason of
Death or Retirement. The Executive may be terminated for Cause, upon at least
thirty (30) days' prior written notice from the Board to the Executive for a
termination for Cause pursuant to clause (iv), (v) or (vii) of this paragraph,
and upon at least ten (10) days' prior written notice from the Board to the
Executive for a termination for Cause pursuant to Clause (i), (ii), (iii), (vi),
or (viii), by a vote of the Board, (provided that Executive shall have had the
opportunity (together with Executive's legal counsel) during such period to be
heard at a meeting of the Board with respect to such determination).
Notwithstanding anything to the contrary contained herein, in the event that
Executive's employment hereunder is terminated during the Agreement Term (x) by
the Company for Cause or (y) by reason of Executive's death or retirement, then
the Company shall pay to Executive, within thirty (30) days of the date of such
termination, only the
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Base Salary through such date of termination. For purposes of this Agreement,
"Cause" shall mean (i) conviction of, or plea of nolo contendere (no contest)
to, any crime (whether or not involving the Company) constituting a felony in
the jurisdiction involved; (ii) conduct involving moral turpitude; (iii) conduct
related to Executive's employment for which either criminal or civil penalties
against Executive or the Company may be sought; (iv) gross neglect or misconduct
in the performance of Executive's duties hereunder; (v) willful failure or
refusal to perform such duties as may be delegated to Executive commensurate
with Executive's position; (vi) material violation of the Company's policies,
including, without limitation, those relating to sexual harassment, the
disclosure or misuse of Confidential Information (as hereinafter defined), or
those set forth in Company manuals or statements of policy; (vii) conduct which
is materially injurious or materially damaging to the Company or the reputation
of the Company; or (viii) material breach of any provision of this Agreement by
Executive.
(c) Disability. If, as a result of Executive's
incapacity due to physical or mental illness, Executive shall have been absent
from Executive's duties hereunder for either (i) one hundred twenty (120) days
within any three hundred sixty-five (365) day period, or (ii) ninety (90)
consecutive days, and within thirty (30) days after written notice of
termination is given shall not have returned to the performance of Executive's
duties hereunder on a full time basis, the Company may terminate Executive's
employment hereunder for "Disability." In that event, the Company shall pay to
Executive, within thirty (30) days, of the date of such termination, only the
Base Salary through such date of termination. During any period that Executive
fails to perform Executive's duties hereunder as a result of incapacity due to
physical or mental illness (a "Disability Period"), Executive shall continue to
receive the compensation and benefits provided by Section 3 hereof (other than
Section 3(c) hereof) until Executive's employment hereunder is terminated;
provided, however, that the amount of compensation and benefits received by
Executive during the Disability Period shall be reduced by the aggregate
amounts, if any, payable to Executive pursuant to Section 3(b) hereof or under
the Social Security or state disability insurance programs.
(d) Resignation For Good Reason. The Executive may
resign for Good Reason, upon at least thirty (30) days' prior written notice
from the Executive to the Board of his intent to resign for Good Reason pursuant
to Clause (iii) of this subparagraph, and upon at least 10 days' prior written
notice from the Executive to the Board of his intent to resign for Good Reason
pursuant to Clause (i), (ii), (iv) or (v) of this subparagraph, provided that
the Executive (together with Executive's legal counsel) shall meet with the
Board, if requested by the Board during such period with respect to his intent
to resign. " Good Reason" shall mean any (i) reduction in the Executive's Base
Salary or opportunity to participate in the Bonus Plan, as set forth herein,
(ii) relocation of the Executive's principal place of business to a location
which is more than 10 miles from its current location in American Fork, Utah
(without the Executive's consent), (iii) material diminution in the Executive's
duties, responsibilities or reporting position with the Company, which
diminution continues after written notice thereof is given to the Board by the
Executive, (iv) failure by the Company to continue in effect any material
benefit or compensation plan, life insurance plan, health and accident plan,
disability plan (or plan providing the Executive with substantially similar
benefits) in which the Executive is participating or the material reduction of
the Executive's benefits under any such plans or (v) failure by Company to
obtain the agreement to assume and perform this Agreement by any successor of
Company.
(e) Termination By The Company For Any Other Reason
or
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Resignation For Good Reason. In the event that Executive's employment hereunder
is terminated by the Company during the Agreement Term for any reason other than
as provided in Sections 7(b) or 7(c) hereof or in the event that Executive
resigns for Good Reason, then the Company shall pay to Executive, within thirty
(30) days of the date of such termination or resignation, only the Base Salary
through such date of termination and, in lieu of any further compensation and
benefits for the balance of the Agreement Term, severance pay equal only to the
Base Salary that Executive would have otherwise received during the period
beginning on such date of termination or resignation and ending on the last day
of the twelfth month following such date of termination or resignation, which
severance pay shall be paid commencing with such date of termination or
resignation at the times and in the amounts such Base Salary would have been
paid if Executive had not been terminated or resigned. Executive shall also
receive his bonus on a pro-rated basis through his last day of employment.
Except as set forth below, during such] twelve month period, Executive shall
also continue to participate in and receive the benefits and perquisites
provided for in Section 3(g) hereof to the same extent as if Executive's
employment hereunder had not been terminated or resigned; provided, however,
that in the event that Executive shall breach Sections 5, 6 or 9 hereof, in
addition to any other remedies the Company may have, the Company' obligation
pursuant to this Section 7(e) to pay severance, bonus, and to continue benefits
and perquisites shall cease and Executive's rights thereto shall terminate and
shall be forfeited and Executive shall reimburse and repay to Company any
severance or bonus paid by Company to Executive between the date of termination
and the date such payments by the Company ceased.
(f) No Further Liability; Release. Payment made and
performance by the Company in accordance with this Section 7 shall operate to
fully discharge and release the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Executive's employment and termination of employment. Other than paying
Executive's Base Salary through the date of termination of Executive's
employment and making any severance payment and continuing benefits and
perquisites pursuant to and in accordance with this Section 7 (as applicable),
the Company and its directors, officers, employees, subsidiaries, affiliates,
stockholders, successors, assigns, agents and representatives shall have no
further obligation or liability to Executive or any other person or entity under
this Agreement. The Company shall have the right to condition the payment of any
severance or other amounts pursuant to this Section 7 upon the delivery by
Executive to the Company of a release (in form and substance satisfactory to the
Company) of any and all claims Executive may have against the Company and its
directors, officers, employees, subsidiaries, affiliates, stockholders,
successors, assigns, agents and representatives arising out of or related to
Executive's employment by the Company and termination of such employment.
8. Change of Control.
If subsequent to the date hereof, there is an Acquisition of
Control, as defined hereafter, of the Company, and any time within one year
thereafter, (i) Executive's employment with the Company is terminated by the
Company without Cause or (ii) Executive resigns for Good Reason, as defined
hereinabove, then in either case Executive shall be entitled to receive a
severance equal to one year base salary at the time of termination, which
severance pay shall be paid commencing with such date of termination or
resignation at the time and in the amounts such Base Salary would have been paid
if Executive had not been terminated or resigned and
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the Company shall continue all benefits coverage of you and your dependents
under the Company's medical and other benefits plans or policies (or under other
benefits plans or policies that provide substantially equivalent coverage) for a
period of one year. Subject to the immediately following sentences, the stock
option agreements (the "Stock Option Agreement"), covering the options granted
to you in connection with your employment (the "Options"), will be amended to
provide for an acceleration of the vesting of such options upon the
circumstances described above. Notwithstanding anything to the contrary
contained in this Agreement or the Stock Option Agreements, there shall be no
acceleration of the vesting of any Options to the extent that the Board of
Directors determines that either the amendment of the Stock Option agreements or
the acceleration of the vesting of any of the Options as contemplated in the
immediately preceding sentence could adversely affect the Company or any of its
affiliates' ability to account for any transaction or contemplated transaction
as a pooling of interests.
"Acquisition of Control" shall mean:
(i) a person, including a group, becoming the beneficial owner
of, or acquiring the power to direct the exercise of voting power with
respect to, directly or indirectly securities which represent fifty
percent (50%) or more of the combined voting power of the Company's
outstanding securities thereafter (and "Acquiring Person"); or (ii) the
Incumbent Directors cease at any time to constitute a majority of the
Board of Directors of the Company.
"Cause" shall mean as defined in paragraph 7(b) hereinabove.
"Incumbent Director" shall mean:
any director of the Company serving at May 6, 1999, or one
elected thereafter if nominated by at least two-thirds of the then
Incumbent Directors.
9. Confidential Information.
(a) Confidential Information. "Confidential
Information" shall mean confidential records and information, including, but not
limited to, development, marketing, purchasing, organizational, strategic,
financial, managerial, administrative, manufacturing, production, distribution
and sales information, distribution methods, data, specifications and processes
(including the Transferred Property as hereinafter defined) presently owned or
at any time hereafter developed by the Company or its agents or consultants or
used presently or at any time hereafter in the course of the business of the
Company, that are not otherwise part of the public domain.
(b) Transfer of Property by Executive. Executive
hereby sells, transfers and assigns to the Company, or to any person or entity
designated by the Company, all of his entire right, title and interest in and to
all inventions, ideas, disclosures and improvements (the "Inventions"), whether
patented or unpatented, and copyrightable material and all trademarks, trade
names, all goodwill associated therewith and all federal and state registrations
or applications thereof, made, adopted or conceived by Executive solely or
jointly, in whole or in part (collectively, the "Transferred Property"), prior
to or during the Agreement Term which (i) relate to methods, apparatus, designs,
products, processes or devices sold,
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leased, used or under construction or development by the Company or (ii)
otherwise relate to or pertain to the business, products, services, functions or
operations of the Company. Executive shall make adequate written records of all
Inventions, which records shall be the Company's property and shall communicate
promptly and disclose to the Company, in such form as the Company requests, all
information, details and data pertaining to the aforementioned Inventions.
Whether during the Agreement Term or thereafter, Executive shall execute and
deliver to the Company such formal transfers and assignments and such other
papers and documents as may be required of Executive to permit the Company, or
any person or entity designated by the Company, to file and prosecute the patent
applications and, as to copyrightable material, to obtain copyrights thereon,
and as to trademarks, to record the transfer of ownership of any federal or
state registrations or applications.
(c) Protection of Confidential Information. All such
Confidential Information is considered secret and will be disclosed to the
Executive in confidence, and the Executive acknowledges that, as a consequence
of his employment and position with the Company, the Executive may have access
to and become acquainted with Confidential Information. Except in the
performance of his duties as an employee of the Company, the Executive shall
not, during the Agreement Term and at all times thereafter, directly or
indirectly for any reason whatsoever, disclose or use any such Confidential
Information. All records, files, drawings, documents, equipment and other
tangible items, wherever located, relating in any way to or containing
Confidential Information, which the Executive has prepared, used or encountered
or shall in the future prepare, use or encounter, shall be and remain the
Company's sole and exclusive property and shall be included in the Confidential
Information. Upon termination of this Agreement, or whenever requested by the
Company, the Executive shall promptly deliver to the Company any and all of the
Confidential Information and copies thereof, not previously delivered to the
Company, that may be in the possession or under the control of the Executive.
The foregoing restrictions shall not apply to the use, divulgence, disclosure or
grant of access to Confidential Information to the extent, but only to the
extent, (i) expressly permitted or required pursuant to any other written
agreement between the Executive and the Company, (ii) such Confidential
Information has been publicly disclosed (not due to a breach by the Executive of
his obligations hereunder, or by breach of any other person, of a fiduciary or
confidential obligation to the Company) or (iii) the Executive is required to
disclose Confidential Information by or to any court of competent jurisdiction
or any governmental or quasi-governmental agency, authority or instrumentality
of competent jurisdiction, provided, however, that the Executive shall, prior to
any such disclosure, immediately notify the Company of such requirement and
provided further, however, that the Company shall have the right, at its
expense, to object to such disclosures and to seek confidential treatment of any
Confidential Information to be so disclosed on such terms as it shall determine.
10. Assignment and Transfer.
(a) Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the heirs and representatives of the Executive
and the successors and assigns of Company. Company shall require any successor
(whether direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of assets or stock, liquidation, or otherwise), by agreement in form
and substance reasonably satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that
Company would be required to perform this Agreement if no such succession had
taken place. Regardless of whether such agreement is executed, this Agreement
shall be binding upon any
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successor of Company in accordance with the operation of law, and such successor
shall be deemed to be the "Company", as appropriate, for purposes of this
Agreement.
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment, by operation of
law or otherwise, and any purported assignment, transfer or delegation thereof
shall be void; provided, however, that if Executive shall die, all amounts then
payable to Executive hereunder shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
11. Miscellaneous.
(a) Other Obligations. Executive represents and
warrants that neither Executive's employment with the Company nor Executive's
performance of Executive's obligations hereunder will conflict with or violate
or otherwise be inconsistent with any other obligations, legal or otherwise,
which Executive may have.
(b) Nondisclosure; Other Employers. Executive will
not disclose to the Company, or use or induce the Company to use, any
proprietary information, trade secrets or confidential business information of
others. Executive represents and warrants that Executive has returned all
property, proprietary information, trade secrets and confidential business
information belonging to all prior employers.
(c) Cooperation. Following notice of termination of
employment with the Company, Executive shall cooperate with the Company, as
requested by the Company, to affect a transition of Executive's responsibilities
and to ensure that the Company is aware of all matters being handled by
Executive.
(d) Protection of Reputation. During the Agreement
Term and thereafter, Executive agrees that he will not take action which is
intended or would reasonably be expected to harm the Company or its reputation
or which would reasonably be expected to lead to unwanted or unfavorable
publicity to the Company.
(e) Governing Law/Jurisdiction/Process. This
Agreement, including the validity, interpretation, construction and performance
of this Agreement, shall be governed by and construed in accordance with the
internal laws of the State of New York, without regard to principles of
conflicts of law. All actions and proceedings relating to or arising out of this
Agreement shall be litigated solely in any New York state court or United States
federal court located in Suffolk County, New York. The parties hereto expressly
consent to the jurisdiction of any such court and to venue therein and consent
to the service of process in any such action or proceeding in a manner pursuant
to that set forth in paragraph (m) hereafter for the giving of notices.
(f) Entire Agreement. This Agreement, contains the
entire agreement and understanding between the parties hereto in respect of the
subject matter hereof and supersedes, cancels and annuls any prior or
contemporaneous written or oral agreements, understandings, commitments and
practices between them respecting the subject matter hereof.
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(g) Amendment. This Agreement may be amended only by
a writing which makes express reference to this Agreement as the subject of such
amendment and which is signed by Executive and, on behalf of the Company, by its
duly authorized officer.
(h) Severability. If any of the provisions of this
Agreement shall otherwise contravene or be invalid under the laws of any state
or other jurisdiction where it is applicable but for such contravention or
invalidity, such contravention or invalidity shall not invalidate all of the
provisions of this Agreement, but rather the Agreement shall be reformed and
construed, insofar as the laws of that state or jurisdiction are concerned, as
not containing the provisions or provisions but only to the extent that they are
contravening or are invalid under the laws of that state or jurisdiction, and
the rights and obligations created hereby shall be reformed and construed and
enforced accordingly. In particular, if any of the covenants or provisions set
forth in paragraphs 5, 6, or 9 hereunder or any part hereof is held to be
unenforceable because of the duration of such provision or the areas covered
thereby, or otherwise, the parties hereby expressly agree that the court making
such determination shall have the power to reduce the duration and/or the areas
of such provision or otherwise limit any such provision, and, in its reduced
form, such provision shall then be enforceable.
(i) Construction. The headings and captions of this
Agreement are provided for convenience only and shall have no effect in
construing or interpreting this Agreement. The use herein of the word
"including," when following any general provision, sentence, clause, statement,
term or matter, shall be deemed to mean "including, without limitation". As used
herein, the words "day" or "days" shall mean a calendar day or days.
(j) Non-waiver. Neither any course of dealing nor any
failure or neglect of either party hereto in any instance to exercise any right,
power or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(k) Remedies for Breach. The parties hereto agree
that Executive is obligated under this Agreement to render personal services
during the Agreement Term of a special, unique, unusual, extraordinary and
intellectual character, thereby giving this Agreement peculiar value, and, in
the event of a breach or threatened breach of any provision of this Agreement by
Executive, the injury or imminent injury to the value and the goodwill of the
Company's business could not be reasonably or adequately compensated in damages
in an action at law. Accordingly, Executive expressly acknowledges that the
Company shall be entitled to specific performance, injunctive relief or any
other equitable remedy against Executive, without the posting of a bond, in the
event of any breach or threatened breach of any provision of this Agreement by
Executive (including Sections 5, 6 and 9 hereof). Without limiting the
generality of the foregoing, if Executive breaches or threatens to breach
Sections 5, 6 or 9 hereof, such breach or threatened breach will entitle the
Company to an Order of the Court enjoining Executive from breaching any of the
provisions of Section 5, 6 or 9, as is appropriate. The rights and remedies of
the parties hereto are cumulative and shall not be exclusive, and each such
party shall be entitled to pursue all legal and equitable rights and remedies
and to secure performance of the obligations and duties of the other under this
Agreement, and the enforcement of one or more of such rights and remedies by a
party shall in no way preclude such party from pursuing, at the same time or
subsequently, any and all other
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rights and remedies available to it.
(l) Reasonableness of Restrictions. Executive agrees
and acknowledges that (i) the provisions of Sections 5, 6 and 9 hereof are
reasonable and necessary for the protection of the Company and do not impose a
greater restraint than is necessary to protect the goodwill or other business
interests of the Company; (ii) such provisions contain reasonable limitations as
to the time and the scope of activity to be restrained; and (iii) the
consideration provided under this Agreement including the grant of stock options
pursuant to 3(d) above, is sufficient to compensate Executive for the
restrictions imposed in Sections 5, 6 and 9 hereof. In consideration of the
foregoing and in light of Executive's education, skills and abilities, Executive
agrees that all defenses by Executive to the strict enforcement of such
provisions are hereby waived by Executive.
(m) Notices. Any notice, request, consent or approval
required or permitted to be given under this Agreement or pursuant to law shall
be sufficient if in writing, and if and when delivered in person by hand or if
sent by certified or registered mail, return receipt requested, with postage
prepaid or by a nationally recognized overnight courier service, with postage
prepaid to Executive:
Xxxxxxx X. Xxxxxxx
000 X000 Xxxx
Xxxx, XX 00000
or to such other residence address of Executive as is reflected in the Company's
records or as otherwise designated by Executive by notice given pursuant to this
paragraph; and if to Company:
Twin Laboratories Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx, President and CEO
With a copy to:
Xxxxxx X. Xxxxx
Chief Legal Officer &
General Counsel
Twin Laboratories Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
All such notices, requests, consents and approvals shall be effective upon being
deposited in the United States mail or upon delivery to such overnight courier
service. Rejection or other refusal to accept, or the inability to deliver
because of changed address of which no notice was given as provided herein,
shall be deemed to be receipt of the notice, request, consent or approval sent.
(n) Assistance in Proceedings, Etc. Executive shall,
without additional compensation, during and after expiration of the Agreement
Term, upon reasonable notice, furnish such information and proper assistance to
the Company as may reasonably be required by the Company in connection with any
legal or quasi-legal proceeding, including any external or internal
investigation, involving the Company or any of its affiliates or in which any of
them is, or may become, a party. The Company shall reimburse Executive for all
reasonable
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12
out-of-pocket expenses incurred by the Executive in connection with services
provided under this Section 9(n).
(o) Survival. The respective obligations of Executive
and rights and benefits afforded to the Company as provided in this Agreement
shall survive cessation or termination of Executive's employment hereunder.
11. Costs and Expenses.
Each party shall pay all of its own costs and
expenses, including reasonable legal fees, in connection with the execution,
delivery, performance and compliance with this Agreement by such party. If an
action or proceeding is commenced by a party to enforce or interpret any
provision of this Agreement, each party shall pay its own costs and expenses of
such action or proceeding, including attorneys' fees.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed on its behalf by an officer thereunto duly authorized and
Executive has duly executed this Agreement, all as of the date and year first
written above.
TWIN LABORATORIES INC. EXECUTIVE
By:___________________________ By:________________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
Date: _____________ Date: ______________
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