EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) made and entered into on this 11th day of November,
2008 (the "Effective Date"), by and between Vystar Corporation, a Georgia
corporation (the "Company"), and Xxxxxxx X. Xxxxx, a resident of the State
of
Georgia ("Employee").
In
consideration of the employment by the Company and of the compensation and
other
remuneration paid, and to be paid, by the Company and received by Employee
for
such employment, and for other good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged by Employee, it is agreed by and
between the parties hereto as follows:
1. Definitions.
For
purposes of this Agreement, the following terms shall have the meanings
specified below:
"Business"
- the
research, development, manufacturing, marketing, distribution, licensing and
offering of products, services and technologies offered by the Company as of
the
Effective Date and as may be offered by Company during the term of this
Agreement, including all renewals. Such products, services and technologies
include, but are not limited to, marketing, selling, distributing and developing
natural rubber latex (NRL) raw material and related products and services to
processors, manufacturers, distributors and other parties who use and/or
purchase NRL as a raw material and/or who manufacture products using NRL.
“Competitor”
- means
any
Person (as defined herein) offering, selling, distributing, processing,
developing, licensing or manufacturing NRL and related products, services and
technologies to or for processors, manufacturers, distributors and other parties
who use, manufacture, process and/or purchase NRL raw material and/or who
manufacture end products using NRL raw materials or a synthetic alternative
to
NRL in competition with Company or any of its subsidiaries.
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"Confidential
Information"
-
information relating to the operations, customers, or finances of
the
Company, or the Business, that derives value from not being generally
known to other Persons, including, but not limited to, technical
or
nontechnical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, and lists
of or
identifying information about actual or potential customers or suppliers,
including all customer lists, whether or not reduced to writing,
certain
patented and unpatented information relating to the research and
development, manufacture or serving of the Company's products, information
concerning proposed new products, market feasibility studies and
proposed
or existing marketing techniques or plans, and all information defined
as
a “Trade Secret” pursuant to the Georgia Trade Secrets Act or otherwise by
Georgia law. Confidential Information also includes the same types
of
information relating to the operations, customers, finances, or Business
of any affiliate of the Company, if such information is learned by
Employee during the term of this Agreement or in connection with
Employee's performance of Services, as defined herein. Con-fidential
Information also includes information disclosed to the Company by
third
parties that the Company is obligated to maintain as confiden-tial.
Confidential Information may include information that is not a Trade
Secret, but Confiden-tial Information that is not also a Trade Secret
shall constitute Confidential Information only for five (5) years
after
the Termination Date. Confidential Information does not include
information generally available to the public through no violation
of a
confidentiality or non-disclosure obligation owed to
Company;
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"Customer"
-
any customer of the Company in the Territory that Employee, during
the
term of this Agreement, (i) provided goods or services to or solicited
on
behalf of the Company; or (ii) about whom Employee possesses Confidential
Information;
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"Person"
-
any individual, corporation, partnership, limited liability company,
association, municipality, government agency, government, unin-corporated
organization or other entity;
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"Services"
-
the duties and functions that Employee shall provide in the Territory
as
an employee of the Company and as further outlined on Exhibit
B;
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"Termination
Date"
-
the last day Employee is employed by the Com-pany, whether the termination
is voluntary or involuntary and whether with or without cause;
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“Territory”
- shall
be the geographic region in which Employee initially and/or within the last
eighteen (18) months during the term of this Agreement provides the Services.
Territory shall be more fully described in Exhibit B along with Employee’s
description of Services.
2. Employment:
The
Company agrees to employ Employee and Employee agrees that Employee will devote
Employee’s full productive time, skill, energy, knowledge and best efforts
during the period of Employee’s employment to such duties as the Board of
Directors of the Company may reasonably assign to Employee, and Employee will
faithfully and diligently endeavor to the best of Employee’s ability to further
the best interest of the Company during the period of Employee’s employment.
However, Employee is not prohibited from making personal investments in any
other businesses, as long as those investments do not require Employee to
participate in the operation of the companies in which Employee invests and
such
other businesses are not in competition with the Company or any of its
subsidiaries (“Competitor”). Employee may invest in any publicly traded company
registered on a bona fide stock exchange without reservation.
3. Terms
of Employment:
Employee's employment pursuant to this Agreement will begin on the
1st day of November, 2008, and will continue uninterrupted unless
terminated by either party pursuant to the Termination Section herein. This
Agreement shall supersede all terms of employment previously executed and
existing prior to the execution of this Agreement.
4. Compensation:
On the
terms and subject to the conditions of this Agreement, (i) the Company will
pay
Employee a salary and a bonus determined in accordance with Exhibit A, (ii)
Employee will be entitled to participate in the Company’s 2004 Long-Term
Incentive Compensation Plan (“Stock Option Plan”), or such other employee stock
option plan as may be in effect from time to time, and (iii) the Company will
provide Employee with employee benefits consistent with those provided by the
Company to similarly situated executives. The employee benefits provided by
the
Company as of the date hereof shall also be distributed to Employee. The Company
reserves the sole and unilateral right to modify any and all employee benefits
at any time in its sole discretion.
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5. Title,
Duties and Conduct of Employee:
The
Employee’s initial title shall be President, Chief Executive Officer, and
Chairman of the Board, and shall report to the Board of Directors of Company.
Employee shall perform such duties and functions for the Company as shall be
specified from time to time by the Board of Directors of the Company, including,
but not limited to the duties and functions expressly set forth on Schedule
B,
and which are consistent therewith (“Services”).
a. Disparagement.
Employee
shall not at any time make false, misleading or disparaging statements about
the
Company, including the Business, management, employees and/or
Customers.
b. Prior
Agreements.
Employee
represents and warrants that Employee is not under any obligation, contractual
or otherwise, limiting, impairing or affecting Employee's performance of
Services. Upon execution of this Agreement, Employee shall give the Company
any
agreement with a prior employer or other Person purporting to limit or affect,
in any way, Employee's ability to work for the Company, to solicit customers
or
potential customers or employees or to use any type of information.
c. Confidential
Information.
Employee
shall protect Confidential Information. Except as required in connection with
work for the Company, Employee will not use, disclose or give to others, during
or after Employee's employment, any Confidential Information.
d. Compliance
with Company Policies and Laws.
At all
times while performing Services, Employee shall comply with all laws and
regulations applicable to Employee and/or Company. Employee shall at all times
comply with all Company policies and procedures. Failure to comply with this
Section shall be grounds for Termination For Cause, as described in Section
9
Term and Termination.
6. Illness
or Incapacity:
Employee
is entitled to paid-time off and absence from Employee’s duties during regular
work hours for any reason for a total of four (4) weeks each calendar year
(“PTO”). If Employee cannot perform his/her duties because of major illness or
incapacity for more than a total of ninety (90) days in any year, the Company
may terminate this Agreement upon thirty (30) days' written notice to Employee.
Employee is not entitled to receive, and the Company shall not be required
to
pay, Employee's compensation hereunder for absences because of major illness
or
incapacity other than the total of ninety (90) days in each year granted to
Employee under this Section 6.
7. Ownership
of Information
a. Work
For Hire Acknowledgment; Assignment.
All
writings, draw-ings, photographs, tapes, recordings, strategies, formulas,
operating procedures, patents, product developments, computer programs and
other
works in any tangible medium of expression, regardless of the form of medium,
which have been or are prepared by Employee, or to which Employee contributes,
in connection with Employee's employ-ment by the Company, whether patented,
copyrighted, trademarked or otherwise (collectively the "Works") and all
copyrights, patents, trademarks and other rights in and to the Works, belong
solely, irrevocably and exclusively throughout the world to the Company as
works
made for hire. However, to the extent any court or agency should conclude that
the Works (or any of them) do not constitute or qualify as a "work made for
hire," Employee hereby assigns, grants and delivers, solely, irrevocably,
exclusively and throughout the world to the Company all ownership and other
rights to the Works. Employee also agrees to cooperate with the Company and
to
execute such other further grants and assignments of all rights as the Company
from time to time reasonably may request for the purpose of evidencing,
enforcing, filing, registering or defending its ownership of the Works and
the
copyrights in them, and Employee hereby irrevoca-xxx constitutes and appoints
the Company as Employee's agent and attorney-in-fact, with full power of
substitu-tion, in Employee's name, place and stead, to execute and deliver
any
and all such assignments or other instruments which Employee shall fail or
refuse promptly to execute and deliver, this power and agency being coupled
with
an interest and being irrevo-cable. Without limiting the preceding provisions
of
this Paragraph 7(a), Employee agrees that the Company may edit and otherwise
modify, and use, publish and otherwise exploit, the Works in all media and
in
such manner as the Company, in its discretion, may determine.
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b. Inventions,
Ideas and Patents.
Employee
shall disclose promptly to the Company (which shall receive it in confidence),
and only to the Company, any invention or idea of Employee (developed alone
or
with others) conceived or made during Employee's employment by the Company
(or,
if related to the Business, during employment or within one year after the
Termination Date). Employee assigns to the Company any such invention or idea
in
any way connected with Employee's employment or related to the Business,
research or development of the Company, or demonstrably anticipated research
or
development of the Company, and will cooperate with the Company and sign all
papers deemed necessary by the Company to enable it to obtain, maintain, protect
and defend patents covering such inventions and ideas and to confirm the
exclusive ownership of the Company of all rights in such inventions, ideas
and
patents, and irrevoca-xxx appoints the Company as its agent to execute and
deliver any assignments or documents Employee fails or refuses to execute and
deliver promptly, this power and agency being coupled with an interest and
being
irrevocable. This constitutes written notification to Employee that this
assignment does not apply to an invention for which no equipment, supplies,
facility or Trade Secret information of the Company or any Customer was used
and
which was developed entirely on Employee's own time, unless (a) the invention
relates (i) directly to the Business or (ii) to the actual or demonstrably
anticipated research or develop-ment of the Company, or (b) the invention
results from any work performed by Employee for the Company.
8. Nonsolicitation;
Noncompetition.
| a. |
Non-Solicitation
of Customers.
During the term of this Agreement, and for one (1) year after the
Termination Date, Employee will not solicit Customers within the
Territory
for the purpose of providing products or services comparable to those
provided by the Business, except on behalf of the
Company.
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Non-Solicitation
of Company Employees.
During the term of this Agreement and for one (1) year after the
Termination Date, Employee will not solicit for employment with another
Person anyone who is an employee of the
Company.
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c.
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Non-Compete.
During the term of this Agreement and for one (1) year after the
Termination Date, Employee will not provide services substantially
similar
to Services within the Territory to any Competitor. Employee shall
be
prohibited from providing in the Territory in competition with the
Company
in accordance with the terms of this Agreement, including the Services
expressly set forth on Schedule B attached hereto. Employee acknowledges
that Employee has been informed of and discussed with the Company
the
specific activities that Employee will perform as Services and that
Employee understands the scope of the activities that constitute
Services
and the Territory under this Agreement. In exchange for entering
into this
noncompete during the one-year period after Termination of this Agreement,
Employee shall be compensated as described in Effect of Termination,
Section 9.c.
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d.
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Future
Employment Opportunities.
Prior to and for one (1) year after the Termination Date, Employee
shall
(a) provide any employer with a copy of this Agreement, and (b) upon
accepting any position, provide the Company with the employer's name
and a
description of the services, if any, Employee will provide for such
employer.
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9. Termination.
At all
times, Employee’s employment shall be subject to “employment at will”. This
Agreement and the employment of Employee may be terminated as
follows:
a. Without
Cause.
Either
party may terminate this Agreement upon thirty (30) days notice to the other
party.
b. For
Cause.
(1) By
the
Company (i) pursuant to Paragraph 6 , (ii) upon conviction of the Employee
of
any felony or material misdemeanor under federal, state or local laws or
ordinances, except traffic violations (iii) upon the failure of Employee to
reasonably, diligently or competently discharge the duties assigned to him
pursuant to this Agreement; (iv) if Employee engages in any act of dishonesty
or
bad faith with respect to the Company; (v) if Employee uses alcohol, drugs
or
other similar substances in a manner that adversely affects Employee’s work
performance; (vi) Employee otherwise commits any act or crime reflecting
unfavorably upon the Company or
(2) (i)
By
Employee upon thirty (30) days' written notice to the Company for any breach
of
this Agreement by Company and failure to cure within that thirty (30) day notice
period; or
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(3) By
the
Company upon any breach by Employee of any of the terms and conditions of this
Agreement or the breach by Employee of any representation or warranty made
to
the Company herein or in any other agreement, document or instrument executed
by
Employee and delivered to the Company, or should any representation or warranty
made by Employee hereunder or thereunder prove to have been false or misleading
in any material respect when made or furnished; or
(4) Immediately
by the Company upon the death or incapacitation of more than ninety (90) days
of
Employee.
c. Effect
of Termination.
(1) In
the
event Employee is terminated by the Company without cause, the Company shall
(i)
pay Employee his then current salary and provide Employee with Group Health
Insurance, but no other compensation or benefits, for six (6) months beginning
with the date of termination (“Severance Payment”), and (ii) subject to the
Employee's strict adherence to and performance of the covenants set forth in
Paragraph 8, Company shall pay to Employee, an amount equal to seventy-five
percent (75%) of Employee’s monthly salary amount for the one (1)-year period
Employee remains obligated to the Non-Compete and Non-Solicitation covenants
described in paragraph 8. If Employee is terminated for cause or Employee
terminates this Agreement without cause, Employee shall be entitled only to
compensation accrued through the date of Termination and all benefits accrued
as
of such date, and shall not be entitled to any Severance Payment described
herein, but shall remain obligated to the Non-Compete and Non-Solicitation
obligations.
(2)
Return
of Materials.
On the
Termination Date or for any reason or at any time at the Company's request,
Employee will deliver promptly to the Company all materials, documents, plans,
records, notes, manuals, subcontracts, procedures, customer lists, and any
other
papers and any copies thereof in Em-ployee's possession, custody or control
relating to the Company or the Business, whether defined as Confidential
Information, Trade Secret or otherwise, all of which at all times shall be
the
property of the Company.
10. Miscellaneous.
a. Assignability.
(1)
This
Agreement may be assigned by the Company to any successor in interest to its
business, which successor in interest shall be bound herein to the same extent
as the Company. Employee agrees to perform his duties for such successor in
interest to the same extent as for the Company.
(2)
This
is a personal agreement on the part of Employee and may not be sold, assigned,
transferred or conveyed by Employee.
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b. No
Waiver.
The
waiver by either party of a breach of any provision of this Agreement
by
the other party shall not operate or be construed as a waiver of
any
subsequent breach by the other
party.
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c.
Governing
Law and Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the
laws
of the State of Georgia. Any cause of action shall be filed in and
the
parties agree to subject themselves to the jurisdiction of any State
or
Federal court of competent jurisdiction located in Atlanta, Georgia.
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d.
Entire
Agreement.
This
Agreement states the entire agreement and understanding between the
parties and supersedes all prior understandings and
agreements.
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e.
No
Modification.
No
change
or modification to this Agreement shall be valid unless in writing and signed
by
both parties hereto.
f. Independence
of Covenants.
The
covenants contained herein shall be construed as agreements independent of
each
other and of any other provision of this or any other contract between the
parties hereto, and the existence of any claim or cause of action by Employee
against the Company, whether predicated upon this or any other contract, shall
not constitute a defense to the enforcement by the Company of said
covenants.
g.
Right
to Injunctive Relief.
Employee
recognizes and agrees that the injury the Company will suffer in the event
of
the Employee's breach of any covenant or agreement contained herein cannot
be
compensated by monetary damages alone, and Employee therefore agrees that the
Company, in addition and without limiting any other remedies or rights that
it
may have, either under his Agreement or otherwise, shall have the right to
obtain an injunction against Employee from any court of competent jurisdiction
enjoining any such breach without having to show or prove damages or
injury.
h.
Jury
Trial Waiver.
Both
parties hereby waive their right to a trial by jury in the event of any dispute
or cause of action regarding this Agreement.
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IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the day and year first above
written.
| VYSTAR CORPORATION | ||
| By: | ||
| (Signature) | ||
| Name: | Xxxxxx Allegra | |
| Title: | Director, Chair Compensation | |
| Date: | ||
| EMPLOYEE: | ||
| (Signature) | ||
| Name: | Xxxxxxx X. Xxxxx | |
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Date:
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Schedule
A - Salary and Bonus
Annual
Salary. $185,000,
which
may be amended from time to time by the Board. The
Salary shall be payable bi-weekly according to the Company’s established payroll
periods. The Board and Employee shall review the Annual Salary amount annually
upon Employee’s Annual performance review that determines Employee’s Annual
Bonus discussed below.
Bonus.
Annual
Bonus.
Employee
shall be eligible each year of the term of this Agreement for a cash bonus
equal
to a maximum of 125% of Employee’s Annual Salary amount based on the success of
the Company in meeting its objectives, as set out for Employee; provided that
no
cash bonus shall be payable to Employee on any date unless Employee is employed
by the Company on that date. The amount of the Annual Bonus shall be determined
by the Board based on the percentage of achievement of the stated Company
objectives. Notwithstanding, if Company does not meet at least 90% of its stated
objectives, the Board may choose not to award Employee any portion of his Annual
Bonus. The effective date of Annual Bonus calculation shall be the Company
Fiscal Year-End, and shall be payable in one or more installments as determined
by the Board beginning in the first quarter of the following Fiscal
Year.
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Schedule
B - Duties and Functions (“Services”)
Services:
Oversee
and promote all aspects of the Company business. This shall include, but not
be
limited to: (i) having all operations, marketing, finance, sales, distribution
and research and development functions report to Employee; (ii) mentoring and
guiding all employees in the management and furtherance of the Company
objectives.
Territory:
Worldwide
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