EXHIBIT 10.68
This Agreement between AMBI INC., a New York corporation ("Company"),
and XXXXXXX X. XXXXX ("Price") is hereby entered into as of September 29, 2000.
In consideration of the mutual promises, terms, covenants and
conditions set forth herein, it is hereby agreed as follows:
1. Resignation, Etc.
(a) Price hereby resigns as an officer, director, manager and
employee of the Company and its XxxxxxxxxX.xxx, Inc. and other
direct and indirect corporate, partnership and LLC
subsidiaries.
(b) Except for an Invention and Secrecy Agreement dated August 30,
1994, the options referred to below and except for the right
of Price to be indemnified by the Company under the Company's
certificate of incorporation and by laws and under the
Company's directors and officers insurance policies, all
employment and other agreements and commitments between the
Company and Price are hereby terminated. The terminated
agreements and commitments, include, without limitation, the
letter agreement effective April 1, 1998 between the Company
and Price and any agreements or commitments in the form of
Board resolutions.
2. Consultancy.
(a) The Company hereby retains Price who agrees to be available as
a consultant on matters relating to XxxxxxxxxX.xxx from time
to time , consistent with Price's expertise and his personal
and other business commitments. Price may perform his services
by phone or in person.
(b) Term of Consultancy.
The consultancy shall commence on the date hereof and shall terminate on the
earlier of June 30, 2004 or the date on which there shall be a change in control
of the Company.
(i) A "change in control" shall be deemed to occur:
(A) when any "person" is or becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Securities
Exchange Act of 1934 (the "Act")) directly or
indirectly, of securities of the Company representing
30% or more of the total voting power represented by
then outstanding voting securities of the Company, or
has the power (whether as a result of stock
ownership, revocable or
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irrevocable proxies, contract or otherwise) or
ability to elect or cause the election of directors
consisting at the time of such election of a majority
of the Board; or
(B) upon the sale of all or substantially all of the
Company's assets, or any merger or other business
combination other than any merger or business
combination which would result in the voting
securities of the Company outstanding immediately
prior thereto continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity) at least
30% of the total voting power represented by the
voting securities of the Company or such surviving
entity outstanding immediately after such merger or
business combination.
(c) In full compensation for his availability as a consultant:
(i) The Company shall during the term of the consultancy
pay to Price a fee of $206,250 for the period from
October 1, 2000 through June 30, 2001, and a fee at
the annual rate of $100,000 thereafter. Such fees
shall be payable in bi-weekly installments, except
that on the occurrence of a change of control, the
Company shall pay to Price in a lump sum, without
discount, the fees that would have been paid to him
thereafter through June 30, 2004 had the term of the
consultancy continued to that date. To the extent
permissible by law, there shall be no withholding
deductions. In the event of Price's death,
disability, or incapacity, such fees shall be paid to
Price or his personal representative, as the case may
be, for the duration of the above term.
(ii) The Company shall during the term of the consultancy
afford to Price all employee benefits which were
afforded to him prior to the date hereof. Such
benefits shall in all events terminate if and when
Price obtains full time employment with a third
party.
(iii) The Company hereby vests Price in all options the
Company has granted to him. Any option that would
have expired prior to June 30, 2004 is extended until
June 30, 2004. Notwithstanding any contrary provision
in the options, he or his personal representative may
exercise such options throughout the term of this
consultancy.
(iv) The Company hereby forgives that portion of a $59,500
loan to Price which the Company has not forgiven
heretofore.
3. No Other Compensation. Except as set forth in this Agreement and
except for (i) vacation pay earned but not taken and (b) expenses incurred as
requested by the Company or any of its subsidiaries, Price is entitled to no
compensation or benefits from the Company for any matter or thing, whether for
severance or otherwise.
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4. Confidentiality and Non-Compete Agreements.
(a) The term "confidential information" includes, but is not
limited to:
(i) the name of any company or business all or any
substantial part of which is or at any time was a
candidate for potential acquisition by the Company,
together with all analyses and other information
which the Company has generated, compiled or
otherwise obtained with respect to such candidate,
business or potential acquisition, or with respect to
the potential effect of such acquisition on the
Company's business, assets, financial results or
prospects;
(ii) proprietary business, pricing and management methods;
(iii) proprietary finances, strategies, systems, research,
surveys, plans, reports, recommendations and
conclusions;
(iv) arrangements with, or other information relating to,
the Company's customers, suppliers, representatives
and other persons who have business relationships
with the Company; and
(v) Proprietary technical information, work products and
know-how, including software and programming.
(b) Confidential information does not include any information
which is known or available from any third party without
breach of any obligation to the Company, or which is or
becomes available to the public without breach by Price of any
obligation to the Company.
(c) Until June 30, 2004:
(i) Price will not disclose any confidential information
to any person or entity, whether prepared by him or
others.
(ii) Price will not directly or indirectly use any
confidential information other than as directed by
the Company.
(d) During the period beginning on the date hereof and ending on
the later of June 30, 2004 or the second anniversary of the
date of termination of the consultancy, Price will not
anywhere directly or indirectly (whether as an owner, partner,
employee, consultant, broker, contractor or otherwise, and
whether personally or through other persons, provided that
ownership of neither (i) shares of NutritionU nor (ii) less
than 3% of the stock of a company other than NutritionU does
not constitute "ownership" for the purposes of this Section):
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engage in any aspect of the business of offering nutrition
education services over the Internet;
(i) retain or employ any person or entity who on the date
of this Agreement is an employee of the Company or
any of its subsidiaries (except to the extent that
such person or entity is fired or laid off by the
Company at a subsequent time); or
(ii) solicit or encourage any person to leave the employ
of the Company or any of its subsidiaries.
(e) Price understands that the provisions of this Section have
been carefully designed to restrict his activities to the
minimum extent which is consistent with the Company's
requirements. Price has carefully considered these
restrictions, and Price confirms that they will not unduly
restrict his ability to obtain a livelihood.
(f) Since monetary damages will be inadequate and the Company will
be irreparably damaged if the provisions of this Section are
not specifically enforced, the Company shall be entitled,
among other remedies to seek an injunction restraining any
violation of this Section (without any bond or other security
being required) by Price and by any person or entity to whom
Price provides or proposes to provide any services in
violation of this Section.
(g) If any provision contained in this Section is determined to be
void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force
and effect as if the provision which was determined to be
void, illegal, or unenforceable had not been contained herein.
(h) The courts enforcing this Section shall be entitled to modify
the duration and scope of any restriction contained herein to
the extent such restriction would otherwise be unenforceable,
and such restriction as modified shall be enforced.
5. Return of Materials.
(a) Price will promptly on request deliver to the Company all
files, papers, recordings and other documents (whether in
note, memo or other document form or on video, audio or
computer tapes or discs or otherwise) that are then in his
possession, custody or control, whether prepared by him or
others, and which relate in any
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way to the Company or any of its subsidiaries (except to the
extent that such files, papers, recordings and other documents
are necessary for Price to possess as a shareholder of
NutritionU).
(b) Price acknowledges that all files, papers, recordings and
other documents (whether in note, memo or other document form
or on video, audio or computer tapes or discs or otherwise)
that at any time come into Price's possession, custody or
control, whether prepared by him or others, and which relate
to the Company or any of its subsidiaries (except to the
extent that such files, papers, recordings and other documents
are necessary for Price to possess as a shareholder of
NutritionU), is and shall at all times be and remain, the
property of the Company.
6. Cooperation in Proceedings; No Derogation.
(a) Price will for no compensation (other than the payment of his
out of pocket expenses) cooperate fully and at reasonable
times with the Company and its subsidiaries in all litigations
and regulatory proceedings on which the Company or any
subsidiary seeks his assistance and as to which he has any
knowledge or involvement. Without limiting the generality of
the foregoing, Price will make himself available to testify at
such litigations and other proceedings, and he will cooperate
with the Company's counsel in preparing materials and offering
advice in such litigations and other proceedings.
(b) Price will not from and after the date hereof, in any way or
to any person, denigrate or derogate the Company or any of its
subsidiaries, or any their officers, directors, products,
services or procedures, whether or not such denigrating or
derogatory statements shall be true and are based on acts or
omissions which are learned by Price from and after the date
hereof or on acts or omissions which occur from and after the
date hereof, or otherwise.
(c) The Company will not from and after the date hereof, in any
way or to any person, denigrate or derogate Price or any of
his services or procedures, whether or not such denigrating or
derogatory statements shall be true and are based on acts or
omissions which are learned by Company from and after the date
hereof or on acts or omissions which occur from and after the
date hereof, or otherwise.
General Release.
(d) Price hereby generally releases, remises and forever
discharges the Company, and any subsidiary or related company,
and each and every employee, officer, agent and attorney of
each releasee (both individually and in their corporate
capacity), and their successors and assigns, of and from all
actions, agreements (including any employment or other
agreement), causes of actions, suits, debts, claims and
demands whatsoever in law or in equity which Price ever had,
now have and
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which Price or Price's heirs or executors, administrators or
assigns, or any of them, hereafter can, shall or may have as
of this date, known and unknown, and whether or not relating
to Price's employment or the termination thereof, but
excluding Price's rights under this Agreement (including the
rights as to his options as provided herein), and excluding
also his rights to indemnification under the Company's
certificate of incorporation and by laws and the Company's
directors and officers insurance policies.
(e) The Company hereby generally releases, remises and forever
discharges Price of and from all actions, agreements
(including any employment or other agreement), causes of
actions, suits, debts, claims and demands whatsoever in law or
in equity which the Company ever had, now has and which the
Company hereafter can, shall or may have as of this date,
known and unknown, and whether or not relating to Price's
employment or the termination thereof, but excluding the
Company's rights under this Agreement and the Invention and
Secrecy Agreement dated August 30, 1994.
7. Miscellaneous.
(a) There are no oral representations, understandings or
agreements with the Company or any of its officers, directors or
representatives covering the same subject matter as this Agreement.
(b) Price has been represented by Xxxxx Xxxxx, Esq. in connection
with this Agreement.
(c) This written Agreement is the final, complete and exclusive
statement and expression of the agreement between the Company and Price
and of all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This written Agreement may
not be later modified except by a further writing signed by the Company
and Price, and no term of this Agreement may be waived except by
writing signed by the party waiving the benefit of such terms. The
Company and Price have prepared this Agreement on a mutual basis, and
this Agreement shall not be construed against any party by reason of
its representative's having served as draftsperson hereof.
(d) No Waiver. No waiver by the parties hereto of any default or
breach of any term, condition or covenant of this Agreement shall be
deemed to be a waiver of any subsequent default or breach of the same
or any other term, condition or covenant contained herein.
(e) Binding Effect. This Agreement shall be binding upon the
parties thereto and their respective heirs, successors and assigns.
(f) Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
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To the Company:
AMBI, Inc.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to: Xxxxxxxx X. Xxxxx c/o the Company
and another copy to:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(i) To Price:
Xx. Xxxxxxx X. Xxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
(g) Notice shall be deemed given and effective (a) three business
days after the deposit in the U.S. mail of a writing addressed as above
and sent first class mail, certified, return receipt requested, (b) one
business day after delivered to a nationally recognized air courier for
next day delivery service, or (c) upon personal delivery. Either party
may change the address for notice by notifying the other party of such
change in accordance with this Section.
(h) This Agreement may be signed in counterparts and by fax.
(i) Governing Law; Resolution of Disputes; Service of Process.
This Agreement shall in all respects be construed according to the laws
of the State of New York. All disputes relating to the interpretation
and enforcement of the provisions of this Agreement shall be resolved
and determined exclusively by the state or federal courts sitting in
the State of New York. The parties waive trial by jury. Service of
process shall be effective when given in the manner provided for
notices hereunder.
AMBI INC.
BY: /s/ XXXXXXXX X. XXXXX
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Xxxxxxxx X. Xxxxx
Senior Vice President
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
