EMPLOYMENT AGREEMENT
Exhibit 10.1
This employment agreement (this
"Agreement") dated as of February 12, 2009 (the "Effective Date"), is made by
and between NXT Nutritionals Holding, Inc., a Delaware corporation (the
"Company") and Xxxxxxx (Xxxxxxx) XxXxxxxx (the “Executive”) (collectively, the
“Parties”).
WHEREAS, the Company is a publicly
traded company whose shares are quoted on the OTC Bulletin Board;
WHEREAS, the Executive will have the
duties and responsibilities as described in Section 1 of the Agreement during
the period when the Executive is the Chief Executive Officer of the Company;
and
WHEREAS, the Parties wish to establish
the terms of the Executive’s employment with the Company;
NOW, THEREFORE, in consideration of the
foregoing, of the mutual promises contained herein and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1. POSITION/DUTIES.
(a) During
the Employment Term (as defined in Section 2 below), the Executive shall serve
as a Chief Executive Officer of the Company. In this capacity the Executive
shall have such duties, authorities and responsibilities commensurate with the
duties, authorities and responsibilities of persons in similar capacities in
similarly sized companies and such other reasonable duties and responsibilities
as the Board of Directors of the Company (the "Board") shall
designate. The Executive shall report directly to the Board of
Directors. The Executive shall obey the lawful directions of the
Board of Directors to whom the Executive reports and shall use his diligent
efforts to promote the interests of the Company and to maintain and promote the
reputation thereof.
(b) During
the Employment Term, the Executive shall use his best efforts to perform his
duties under this Agreement and shall devote all of his business time, energy
and skill in the performance of his duties with the Company. The
Executive shall not during the Employment Term (except as a representative of
the Company or with consent in writing of the Board) be directly or indirectly
engaged or concerned in any other business activity. Notwithstanding
the foregoing provisions, the Executive is not prohibited from (1) participating
in charitable, civic, educational, professional or community affairs or serving
on the board of directors or advisory committees of non-profit entities, and (2)
managing his and his family's personal investments, in each case, provided that such activities
in the aggregate do not materially interfere with his duties
hereunder.
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2. EMPLOYMENT
TERM. Except for earlier termination as provided in Section 5,
the Executive's employment under this Agreement shall be for a three year term
commencing on the Effective Date and ending on February 12, 2012 (the "Initial
Term"). Subject to Section 5, at the end of the Initial Term this Agreement may
be extended for additional terms by mutual agreement of the parties (“Additional
Term”). The amount of compensation payable to the Executive during
any extension of the Initial Term shall be discussed and agreed upon by both
parties 30 days before the Agreement termination date. The Initial
Term and any Additional Term shall be referred to herein as the "Employment
Term."
3. COMPENSATION.
(a) Base Salary. In consideration
of the services to be rendered as provided in Section 1, the Company hereby
agrees to pay the Executive an annual base salary of $120,000 payable in equal
semimonthly installments in accordance with the usual practice of the Company
(the “Base Salary”). The Executive's Base Salary shall be subject to annual
review by the Board of Directors of the Company (the “BOD”).
(b) Bonus. With respect
to each full fiscal year during the Employment Term, the Executive shall be
eligible to earn an annual bonus (the "Annual Bonus") in such amount, if any, as
determined in the sole discretion of the Board of up to 100% of the Executive's
Base Salary. In addition, the Executive shall be eligible to participate in the
Company's bonus and other incentive compensation plans and programs (if any) for
the Company's senior executives at a level commensurate with his position and
may be entitled to bonus payments in addition to the amount set forth
hereinabove.1
4. EMPLOYEE
BENEFITS.
(a) Benefit Plans. The
Executive shall be eligible to participate in any employee benefit plan of the
Company, including, but not limited to, equity, pension, thrift, profit sharing,
medical coverage, education, or other retirement or welfare benefits that the
Company has adopted or may adopt, maintain or contribute to the benefit of its
senior executives, at a level commensurate with his positions, subject to
satisfying the applicable eligibility requirements. The Company may at any time
or from time to time amend, modify, suspend or terminate any employee benefit
plan, program or arrangement for any reason in its sole discretion.
(b) Vacation. Employee
shall be entitled to a vacation (without deduction of salary or other
compensation) for the period as is in conformity with the Company’s policy
regarding vacations for management employees (but in no event less than three
weeks per year).
(c) Business and Entertainment
Expenses. Upon presentation of appropriate documentation, the Executive
shall be reimbursed for all reasonable and necessary business and
1 NOTE:
publicly held companies are subject to the $1,000,000 compensation deduction
limitation imposed by Internal Revenue Code Section
162(m).
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entertainment
expenses incurred in connection with the performance of his duties hereunder,
all in accordance with the Company's expense reimbursement policy applicable to
senior executives from time to time in effect.
(d) Insurance. The Company shall
provide standard coverage for the Executive and each individual family member of
the Executive under the Company health insurance after consultation with the
Executive.
(e) Company Car. The Executive
shall either (i) receive a monthly expense allowance for purchase or lease of a
car or (ii) be given a company car for use in connection with the performance of
his duties hereunder.
5. EARLY
TERMINATION. The Executive's employment and the Employment
Term shall terminate on the first of the following to occur:
(a) Disability. The
thirtieth (30th) day
following a written notice of termination by the Company to the Executive due to
Disability. For purposes of this Agreement, "Disability" shall mean a
determination by the Company in accordance with applicable law that
due to a physical or mental injury, infirmity or incapacity, the Executive is
unable to perform the essential functions of his job with or without
accommodation for 180 days (whether or not consecutive) during any 12-month
period.
(b) Death. Automatically
on the date of death of the Executive.
(c) Cause. Immediately
upon written notice of termination by the Company to the Executive for Cause.
"Cause" shall mean, as determined by the Board (or its designee) (1) conduct by
the Executive in connection with his employment duties or responsibilities that
is fraudulent, unlawful or grossly negligent; (2) the willful misconduct of the
Executive; (3) the willful and continued failure of the Executive to perform the
Executive's duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness); (4) the commission by the
Executive of any felony (other than traffic-related offenses) or any crime
involving moral turpitude; (5) violation of any material policy of the Company
or any material provision of the Company's code of conduct, employee handbook or
similar documents; or (6) any material breach by the Executive of any provision
of this Agreement or any other written agreement entered into by the Executive
with the Company.
(d) Without Cause. On
the sixtieth (60th) day following written notice by either Party to the other
Party without Cause, other than for death or Disability of the
Executive. The Company may also terminate this Agreement for cause at
any time in the event of the failure of the Executive to perform duties assigned
by the Company in a correct, timely and expeditious manner or in the event of
material violation by the Executive of any term or condition of this
Agreement.
6. CONSEQUENCES
OF TERMINATION.
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Disability. Upon
termination of the Employment Term because of the Executive's Disability, the
Company shall pay or provide to the Executive (1) any unpaid Base Salary and any
accrued vacation through the date of termination; (2) any unpaid bonus accrued
through the date of termination; (3) three (3) months’ Base Salary at the then
current rate, payable in a lump sum, less withholding of applicable taxes; (4)
reimbursement for any unreimbursed expenses properly incurred through the date
of termination; and (5) all other payments or benefits to which the Executive
may be entitled under the terms of any applicable employee benefit plan, program
or arrangement (collectively, "Accrued Benefits").
(a) Death. Upon the
termination of the Employment Term because of the Executive's death, the
Executive's estate shall be entitled to (1) three (3) months’ Base Salary at the
then current rate, payable in a lump sum, less withholding of applicable taxes;
and (2) any Accrued Benefits.
(b) Termination for Cause. Upon
the termination of the Employment Term by the Company for Cause or by either
party in connection with a failure to renew this Agreement, the Company shall
pay to the Executive any Accrued Benefits.
(c) Termination without
Cause. Upon the termination of the Employment Term by the
Company without Cause, the Company shall pay or provide to the Executive (1) the
Accrued Benefits, (2) six (6) months’ Base Salary at the then current rate,
payable in a lump sum, less withholding of applicable taxes, (3) continued
coverage under all plans or programs of the types listed in Section 3.1 until
the sooner of one (1) year or one (1) month after Employee becomes otherwise
employed and eligible for other comparable coverage, and (4) all other benefits
provided to Employee under this Agreement for a period of thirty (30)
days.
7. NO ASSIGNMENT. This
Agreement is personal to each of the Parties. Except as provided
below, no Party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other Party hereto; provided, however, that the
Company may assign this Agreement to any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company.
8. NOTICES. For the purpose of
this Agreement, notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given (1) on
the date of delivery if delivered by hand, (2) on the date of transmission, if
delivered by confirmed facsimile, (3) on the first business day following the
date of deposit if delivered by guaranteed overnight delivery service, or (4) on
the fourth business day following the date delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Xxxxxxx (Xxxxxxx)
XxXxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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If to the Company:
00
Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
With a copy (which does not constitute
a notice) to:
Xxxxxx & Xxxxxx, LLP
000 Xxxxx 0 Xxxxx, Xxxxx
000
Xxxxxxxxx, Xxx Xxxxxx,
00000
Attention: Xxxxxxxx Xxxxxxx,
Esq.
Tel.:000-000-0000
Fax: (000) 000-0000
or to
such other address as either Party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
9. PROTECTION
OF THE COMPANY'S BUSINESS.
(a) Confidentiality. The
Executive acknowledges that during the course of his employment by the Company
(prior to and during the Employment Term) he has and will occupy a position of
trust and confidence. The Executive shall hold in a fiduciary capacity for the
benefit of the Company and shall not disclose to others or use, whether directly
or indirectly, any Confidential Information regarding the Company, except (i) as
in good faith deemed necessary by the Executive to perform his duties hereunder,
(ii) to enforce any rights or defend any claims hereunder or under any other
agreement to which the Executive is a party, provided that such disclosure
is relevant to the enforcement of such rights or defense of such claims and is
only disclosed in the formal proceedings related thereto, (iii) when required to
do so by a court of law, by any governmental agency having supervisory authority
over the business of the Company or by any administrative or legislative body
(including a committee thereof) with jurisdiction to order him to divulge,
disclose or make accessible such information, provided that the Executive
shall give prompt written notice to the Company of such requirement, disclose no
more information than is so required, and cooperate with any attempts by the
Company to obtain a protective order or similar treatment, (iv) as to such
Confidential Information that shall have become public or known in the Company's
industry other than by the Executive's unauthorized disclosure, or (v) to the
Executive's spouse, attorney and/or his personal tax and financial advisors as
reasonably necessary or appropriate to advance the Executive's tax, financial
and other personal planning (each an "Exempt Person"), provided, however, that any disclosure
or use of Confidential Information by an Exempt Person shall be deemed to be a
breach of this Section 9(a) by the Executive. The Executive shall take all
reasonable steps to safeguard the Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft. The Executive
understands and agrees that the Executive shall acquire no rights to any such
Confidential Information. "Confidential Information" shall mean information
about the Company, its subsidiaries and affiliates, and their respective clients
and customers that is not
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disclosed
by the Company and that was learned by the Executive in the course of his
employment by the Company, including, but not limited to, any proprietary
knowledge, trade secrets, data and databases, formulae, sales, financial,
marketing, training and technical information, client, customer, supplier and
vendor lists, competitive strategies, computer programs and all papers, resumes,
and records (including computer records) of the documents containing such
Confidential Information.
(b) Non-Competition. During
the Employment Term and for the one-year period following the termination of the
Executive's employment for any reason (the "Restricted Period"), the Executive
shall not, directly or indirectly, without the prior written consent of the
Company, provide employment (including self-employment), directorship,
consultative or other services to any business, individual, partner, firm,
corporation, or other entity that competes with any business conducted by the
Company or any of its subsidiaries or affiliates on the date of the Executive's
termination of employment or within one year of the Executive's termination of
employment in the geographic locations where the Company and its subsidiaries or
affiliates engage or propose to engage in such business (the "Business").
Nothing herein shall prevent the Executive from having a passive ownership
interest of not more than 2% of the outstanding securities of any entity engaged
in the Business whose securities are traded on a national securities
exchange.
(c) Non-Solicitation of Employees.
The Executive recognizes that he possesses and will possess confidential
information about other employees of the Company and its subsidiaries and
affiliates relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with customers of
the Company and its subsidiaries and affiliates. The Executive recognizes that
the information he possesses and will possess about these other employees is not
generally known, is of substantial value to the Company and its subsidiaries and
affiliates in developing their business and in securing and retaining customers,
and has been and will be acquired by him because of his business position with
the Company. The Executive agrees that, during the Restricted Period, he will
not, directly or indirectly, (i) solicit or recruit any employee of the
Company or any of its subsidiaries or affiliates (a "Current Employee") or any
person who was an employee of the Company or any of its subsidiaries or
affiliates during the twelve (12) month period immediately prior to the date the
Executive's employment terminates (a "Former Employee") for the purpose of being
employed by him or any other entity, or (ii) hire any Current Employee or Former
Employee.
(d) Non-Solicitation of
Customers. The Executive agrees that, during the Restricted
Period, he will not, directly or indirectly, solicit or attempt to solicit (i)
any party who is a customer or client of the Company or its subsidiaries, who
was a customer or client of the Company or its subsidiaries at any time during
the twelve (12) month period immediately prior to the date the Executive's
employment terminates or who is a prospective customer or client that has been
identified and targeted by the Company or its subsidiaries for the purpose of
marketing, selling or providing to any such party any services or products
offered by or available from the Company or its subsidiaries, or (ii) any
supplier or vendor to the Company or any subsidiary to terminate, reduce or
alter negatively its relationship with the Company or any subsidiary or in any
manner interfere with any agreement or contract between the Company or any
subsidiary and such supplier or vendor.
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(e) Property. The
Executive acknowledges that all originals and copies of materials, records and
documents generated by him or coming into his possession during his employment
by the Company or its subsidiaries are the sole property of the Company and its
subsidiaries ("Company Property"). During the Employment Term, and at
all times thereafter, the Executive shall not remove, or cause to be removed,
from the premises of the Company or its subsidiaries, copies of any record,
file, memorandum, document, computer related information or equipment, or any
other item relating to the business of the Company or its subsidiaries, except
in furtherance of his duties under this Agreement. When the
Executive's employment with the Company terminates, or upon request of the
Company at any time, the Executive shall promptly deliver to the Company all
copies of Company Property in his possession or control.
(f) Non-Disparagement. Executive
shall not, and shall not induce others to, Disparage the Company or its
subsidiaries or affiliates or their past and present officers, directors,
employees or products. "Disparage" shall mean making comments or statements to
the press, the Company's or its subsidiaries' or affiliates' employees or any
individual or entity with whom the Company or its subsidiaries or affiliates has
a business relationship which would adversely affect in any manner (1) the
business of the Company or its subsidiaries or affiliates (including any
products or business plans or prospects), or (2) the business reputation of the
Company or its subsidiaries or affiliates, or any of their products, or their
past or present officers, directors or employees.
(g) Cooperation. Subject
to the Executive's other reasonable business commitments, following the
Employment Term, the Executive shall be available to cooperate with the Company
and its outside counsel and provide information with regard to any past,
present, or future legal matters which relate to or arise out of the business
the Executive conducted on behalf of the Company and its subsidiaries and
affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Executive for any out-of-pocket expenses reasonably
incurred by the Executive in connection therewith.
(h) Equitable Relief and Other
Remedies. The Executive acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of this Section 9 would be inadequate and, in recognition of this
fact, the Executive agrees that, in the event of such a breach or threatened or
attempted breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available. In
addition, without limiting the Company's remedies for any breach of any
restriction on the Executive set forth in this Section 9, except as required by
law, the Executive shall not be entitled to any payments set forth in Section
5(d) hereof if the Executive has breached the covenants applicable to the
Executive contained in this Section 9, the Executive will immediately return to
the Company any such payments previously received under Section 5(d) upon such a
breach, and, in the event of such breach, the Company will have no obligation to
pay any of the amounts that remain payable by the Company under Section
5(d).
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Reformation. If it
is determined by a court of competent jurisdiction in any state that any
restriction in this Section 9 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that
state. The Executive acknowledges that the restrictive covenants
contained in this Section 9 are a condition of this Agreement and are reasonable
and valid in temporal scope and in all other respects.
(i) Liability. Notwithstanding
the provisions in this Section 9 the Executive shall not be liable for any
mistakes of fact, errors of judgment, for losses sustained by the Company or any
subsidiary or for any acts or omissions of any kind, unless caused by the
negligence or willful or intentional misconduct of the Executive or any person
or entity acting for or on behalf of the Executive.
(j) Survival of
Provisions. The obligations contained in this Section 9 shall
survive in accordance with their terms the termination or expiration of the
Executive's employment with the Company and shall be fully enforceable
thereafter.
10. INDEMNIFICATION. The
Executive shall be indemnified to the extent permitted by the Company's
organizational documents and to the extent required by law.
11. SECTION HEADINGS AND
INTERPRETATION. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement. Expressions of inclusion used in this
agreement are to be understood as being without limitation.
12. SEVERABILITY. The
provisions of this Agreement shall be deemed severable and the invalidity of
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
13. COUNTERPARTS. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
Agreement.
14. GOVERNING LAW. This
Agreement in its interpretation and application and enforcement shall be
governed by the law of the State of Delaware.
15. ENTIRE AGREEMENT. This
Agreement contains the entire agreement between the Parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral, with
respect thereto. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
16. WAIVER AND
AMENDMENT. No provision of this Agreement may be modified,
amended, waived or discharged unless such waiver, modification, amendment or
discharge is agreed to in writing and signed by the Executive and such officer
or director as may
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be
designated by the Board. No waiver by either Party at any time of any breach by
the other 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 or
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
17. WITHHOLDING. The Company may
withhold from any and all amounts payable under this Agreement such federal,
state, local and foreign taxes as may be required to be withheld pursuant to any
applicable law or regulation.
18. AUTHORITY AND
NON-CONTRAVENTION. The Executive represents and warrants to
the Company that he has the legal right to enter into this Agreement and to
perform all of the obligations on his part to be performed hereunder in
accordance with its terms and that he is not a party to any agreement or
understanding, written or oral, which could prevent him from entering into this
Agreement or performing all of his obligations hereunder.
19. COUNTERPARTS. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
[REMAINDER
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IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first written
above.
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/s/ Xxxxxxxx Xxxxxx, XX
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By: Xxxxxxxx
Xxxxxx, XX
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Title:
Chairman of the Board of Directors
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EXECUTIVE
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/s/ Xxxxxxx
XxXxxxxx
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By: Xxxxxxx
(Xxxxxxx)
XxXxxxxx
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