Exhibit 10.21
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made effective the 1st
day of October, 1996 by and between Nutrition For Life International, Inc., a
Texas corporation (the "Company") and Xxxx Xxxxxxx ("Xxxxxxx").
In consideration of the mutual covenants, promises and agreements
herein contained, the Company and Mitcham hereby covenant, promise and agree to
and with each other as follows:
1. Employment. The Company shall employ Mitcham and Mitcham shall be
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employed by the Company upon the terms and conditions set forth in this
Agreement.
2. Positions and Duties of Employment. Mitcham shall be required to
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devote her best efforts on a full-time basis to the furtherance of her
managerial duties with the Company as the Company's Executive Vice President.
While serving in these corporate capacities, Mitcham shall have the
responsibilities, duties, obligations, rights, benefits and requisite authority
as is customary for her positions and as may be determined by the Company's
Board of Directors (the "Board") and as set forth in the Bylaws of the Company.
Mitcham understands that her employment as Executive Vice
President of the Company involves a high degree of trust and confidence, that
she is employed for the purpose of furthering the Company's reputation and
improving the Company's operations and profitability, and that in executing this
Agreement she undertakes obligations set forth herein to accomplish such
objectives. Mitcham agrees that she shall serve the Company fully, diligently
and competently, and to the best of her ability. Mitcham certifies that she
fully understands her right to discuss this Agreement with her private attorney,
that to the extent, if any, she desires, she has availed herself of this right,
that she has carefully read and fully understands this entire Agreement, and
that she is voluntarily entering into this Agreement.
3. Term. Except as otherwise provided in this Agreement, the term of
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this Agreement (the "Term") shall be for a period of three years commencing
October 1, 1996.
4. Compensation. Mitcham shall receive the following as
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compensation:
(a) Mitcham shall receive a monthly salary of $31,333.33 for each
full month of her employment by the Company pursuant to this Agreement, payable
in accordance with the Company's customary payroll practices.
(b) In addition to her salary, Mitcham shall be entitled to a
bonus, payable within 90 days of the end of each annual period of the Term,
based upon the Company meeting certain pre-tax income levels defined below (the
"Bonus"). Pre-tax income shall be determined in accordance with generally
accepted accounting principles. In the event of any dispute over the amount of
pre-tax income, a final determination shall be made by BDO Xxxxxxx LLP or
another independent certified public accounting firm selected by the Company. No
Bonus shall be
payable unless the Company's annual pre-tax income is $3,000,000 or more. The
amount of the Bonus shall be 5% of the first annual pre-tax income of the
Company, which is between $3,000,000 and $5,000,000; 4% of the annual pre-tax
income of the Company which is between $5,000,000 and $10,000,000; and 3% of the
annual pre-tax income of the Company which is between $10,000,000 and
$20,000,000. No Bonus shall be payable for any annual pre-tax income of the
Company in excess of $20,000,000.
(c) The Company shall provide Mitcham with participation in any
group plans or agreements maintained by the Company relating to health insurance
or other related benefits in accordance with their respective terms.
(d) Mitcham shall be entitled to leaves for vacations for periods
reasonably determined by the Board. In addition, Mitcham shall be entitled to
reasonable absences for attendance at business seminars and conventions.
(e) Any payment which the Company shall make to Mitcham pursuant
to this Agreement shall be reduced by standard withholding and other authorized
deductions.
(f) During the term of her employment, Mitcham shall be
reimbursed for reasonable expenses incurred by her for the benefit of the
Company. Any direct payment or reimbursement of expenses shall be made only upon
presentation of an itemized accounting conforming in form and content to
standards prescribed by the Internal Revenue Service relative to the
substantiation of the deductibility of business expenses.
5. Life Insurance. The Company may, but shall not be obligated to,
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apply for and procure as owner and for its own benefit or the benefit of any
lender of the Company, insurance on Mitcham's life, in any amount and form or
forms that the Company may choose. Mitcham shall, at the Company's request,
submit to all medical examinations, supply all information and execute all
documents required by the insurance company or companies to whom the Company has
applied for the insurance.
6. Corporate Data and Antisolicitation. Upon the termination of
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Mitcham's employment under this Agreement for any reason, Mitcham shall return
to the Company all data and information, whether written, computer, magnetic,
electronic or in any other physical or tangible form, relating to the business
of the Company or any of its affiliates that Mitcham obtained during the time of
her employment. During the term of this Agreement or for a period of one year
thereafter, Mitcham shall neither disclose to any other person or entity, nor
use for her own personal benefit, any information obtained during her employment
by the Company that is not otherwise publicly known, relating to the financial
affairs, distributor lists or the business operations of the Company or any of
its subsidiaries or affiliates. During the term of this Agreement or for a
period of one year thereafter, Mitcham will not influence or attempt to
influence distributors of the Company or any of its present or future
subsidiaries or affiliates, either directly or indirectly, to divert their
business to any individual, partnership, firm, corporation or other entity then
in competition with the business of the Company or any
subsidiary or affiliate of the Company, nor will she solicit any of the
Company's employees who earned annually $25,000 or more as a Company employee
during the last six months of her or her own employment to work for any
individual, partnership, firm, corporation or other entity then in competition
with the business of the Company or any subsidiary or affiliate of the Company.
7. Termination.
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(a) The Company shall have the right at any time to terminate
Mitcham's employment under this Agreement without further liability or
obligation pursuant to this Agreement upon the occurrence of any of the
following events:
(i) By mutual written agreement, signed by both parties; or
(ii) The death of Mitcham; or
(iii) If the Company determines in good faith that the
Disability of Mitcham has occurred (pursuant to the definition of
Disability set forth below), it may give to Mitcham written notice
in accordance with Section 13 of its intention to terminate
Mitcham's employment. In such event, Mitcham's employment with the
Company shall terminate effective upon receipt of such notice by
Mitcham, provided that, upon receipt, Mitcham shall not have
returned to full-time performance of her duties. For purposes of
this Agreement, "Disability" shall mean a physical or mental
impairment which substantially limits a major life activity of
Mitcham which renders Mitcham unable to perform the essential
functions of her position, even with reasonable accommodation
which does not impose an undue hardship on the Company. The
Company reserves the right, in good faith, to make the
determination of Disability under this Agreement based upon
information supplied by Mitcham and/or her medical personnel as
well as information from medical personnel (or others) selected by
the Company or its insurers; or
(iv) Mitcham is convicted of any crime constituting a felony
under the law of the United States or any State; or
(v) A "Material Breach" of this Agreement as determined by
the Board. The exercise of the right of the Company to terminate
this Agreement shall not abrogate the rights and remedies of the
Company in respect of the breach giving rise to such termination.
For purposes of this subsection, "Material Breach" shall mean that
the Company, acting in good faith based upon the information then
known to the Company, determines that Mitcham has engaged or
committed: willful misconduct; gross negligence; theft, fraud or
other illegal conduct; refusal or unwillingness to perform her
duties; sexual harassment; violation of any fiduciary duties;
violation of any duty of loyalty; or a material
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breach of any term of this Agreement. The "Material Breach" shall
be specified in a notice of termination to be delivered by the
Company no later than the date as of which the termination is
effective.
(b) If Mitcham's employment is terminated by the Company for
any reason other than those set forth in sections 7(a)(i) through 7(a)(v) above,
then the Company shall pay "Termination Pay" to Mitcham in full settlement of
any and all claims of Mitcham arising out of or in connection with her
employment by the Company. The "Termination Pay" shall consist of (i) twelve
months' salary, which shall be paid in six monthly installments of $62,666.66
each, commencing on the first day of the month after the month in which
termination occurred and continuing on the first day of each month thereafter
until all six installments have been paid; and (ii) the product of the Bonus to
which Mitcham would be entitled, multiplied by a fraction having a numerator
equal to the number of days in the annual period preceding the date of
termination and a denominator equal to 365, which shall be paid to Mitcham no
later than 90 days after the end of the annual period in which termination
occurred.
(c) If during the term of this Agreement, the Company effects a
merger or acquisition in which it is not the surviving entity or is a party to a
stock exchange in which it becomes a wholly-owned subsidiary of another entity
and Mitcham's employment is thereafter terminated by the Company notwithstanding
that no "Material Breach" has occurred, then Mitcham shall be entitled to
"Termination Pay".
(d) For purposes of this Section 7, voluntary termination of
employment by Mitcham as a result of a material change by the Company in
Mitcham's job responsibilities shall be deemed to be termination by the Company
without a "Material Breach" and Mitcham shall be entitled to "Termination Pay".
(e) Mitcham shall have the right to terminate this Agreement in
the event of a default by the Company of any material provision of this
Agreement but only if Mitcham shall have first given written notice of the
default to the Company and if within thirty days after receipt of that notice
the Company has not cured that default. Upon termination neither Mitcham nor the
Company shall have any further obligations under any of the provisions of this
Agreement except that Mitcham shall be entitled to "Termination Pay".
(f) Mitcham agrees that the payments contemplated by this
Agreement shall constitute the exclusive and sole remedy for any termination of
her employment and Mitcham covenants not to assert or pursue any other remedies,
at law or in equity, with respect to any termination of employment.
8. Remedies. If there is a breach or threatened breach of the
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provisions of Section 2 or 6 of this Agreement, the Company shall be entitled to
an injunction restraining Mitcham from such breach. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies for such
breach or threatened breach.
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9. Severability. It is the clear intention of the parties to this
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Agreement that no term, provision or clause of this Agreement shall be deemed to
be invalid, illegal or unenforceable in any respect, unless such term, provision
or clause cannot be otherwise construed, interpreted, or modified to give effect
to the intent of the parties and to be valid, legal or enforceable. In the event
that such a term, provision, or clause cannot be so construed, interpreted or
modified, the validity, legality and enforceability of the remaining provisions
contained herein and other application(s) thereof shall not in any way be
affected or impaired thereby and shall remain in full force and effect.
10. Waiver of Breach. The waiver by the Company or Mitcham of the
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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 that party.
11. Entire Agreement. This document contains the entire agreement
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between the parties, supersedes all prior oral agreements, if any, and may not
be changed orally, but only by agreement in writing signed by the parties.
12. Governing Law. This Agreement, its validity, interpretation and
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enforcement, shall be governed by the laws of the State of Texas.
13. Notices. Any notice pursuant to this Agreement shall be validly
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given or served if that notice is made in writing and delivered personally or
sent by certified mail, return receipt requested, postage prepaid, to the
following addresses:
If to Company: Nutrition For Life International, Inc.
0000 Xxxxxx
Xxxxxxx, XX 00000
If to Mitcham: To the address for Mitcham set forth below her
signature.
All notices so given shall be deemed effective upon receipt. Either party, by
notice so given, may change the address to which her or its future notices shall
be sent.
14. Assignment and Binding Effect.
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(a) This Agreement shall be binding upon Mitcham and the Company and
shall benefit the Company and its successors and assigns.
(b) This Agreement shall not be assignable by Mitcham.
15. Headings. The headings in this Agreement are for convenience
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only; they form no part of this Agreement and shall not affect its
interpretation.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
NUTRITION FOR LIFE INTERNATIONAL, INC.
By:_____________________________________
Authorized Officer
_______________________________
Xxxx Xxxxxxx, Individually
Address for Notice:
10618 Great Plains
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(Street Address)
Xxxxxxx, Xxxxx 00000
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(City, State and Zip Code)
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