EMPLOYMENT AGREEMENT
This employment agreement (Agreement) is entered into as of this 30th day of
November, 1998 by and between IVC Industries, Inc. with the address of 000 Xxxxx
Xxxx Xxxx, Xxxxxxxx, XX 00000 ("IVC" or the "Company") and Xxxxx Xxxxx with a
home address of 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000.
Whereas, IVC desires to employ the services of Xx. Xxxxx utilizing his knowledge
and expertise as a full-time employee without the distraction of employment
related uncertainties and considers such employment in the best interests of the
Company and its shareholders, and Xx. Xxxxx desires to be employed full-time by
the Company; and
Whereas, IVC and Xx. Xxxxx desire to enter into an Agreement reflecting the
terms under which Xx. Xxxxx will be employed by the Company for a two (2) year
period.
Now, therefore, in consideration of the premises and mutual covenants set forth
herein, the parties hereto agree as follows:
1. Term. This Agreement will remain in effect for a period of two
(2) years and will be renewed automatically for succeeding
periods of two (2) years unless sooner terminated as provided in
sections 6 and 7 below.
2. Nature of Employment. Xx. Xxxxx shall be employed as Vice
President, Information Technology of IVC with full power and
authority as determined by the Board of Directors of IVC (the
"Board"). Xx. Xxxxx agrees to diligently and faithfully perform
such duties and serve in the above capacity or such capacities
as the Board of Directors of the Company shall determine from
time to time. The duties to be performed by Xx. Xxxxx are to be
in line with the customary duties for this position in the
Information Technologies Industry.
Xx. Xxxxx' duties include but are not limited to the following:
a. Report to the Chief Executive Officer of the Company.
b. Manage the Information Technology function corporate-wide.
c. Provide support to the company strategic direction.
d. Manage the budget allocated to the Information Technology
function.
3. Compensation for Services. As consideration to Xx. Xxxxx for
services rendered under this Agreement, IVC shall compensate Xx.
Xxxxx as follows:
(a) Base salary. Xx. Xxxxx shall receive a minimum base salary of
$125,000 per year, to be reviewed annually by the Chief
Executive Officer.
(b) Incentive Compensation. Incentive compensation may be awarded as
determined by the Board of Directors, based on the executive's
performance.
(c) Benefits. Xx. Xxxxx shall be entitled to all other benefits
normally accorded to full time employees of IVC and to members
of the IVC Board of Directors, including medical insurance and
life insurance for Xx. Xxxxx' family, holidays, etc. as
consistent with other key senior management personnel or as may
be decided by the Company if said items are discretionary with
the Company.
(d) Xx. Xxxxx shall be entitled to a minimum of 50,000 incentive
stock options at a price of $0.875 per share. Xx. Xxxxx will
receive 25,000 incentive stock options on November 30, 1998. Xx.
Xxxxx will receive the remaining incentive stock options on
November 30, 1999.
(e) Xx. Xxxxx will be entitled to three (3) weeks of vacation per
year.
(f) Xx. Xxxxx shall be entitled to all health and sick leave as is
accorded to other key senior management personnel.
4. Responsibilities of Executive. The responsibilities of Xx. Xxxxx
under this Agreement are as follows:
(a) Xx. Xxxxx agrees to serve IVC for the term of employment
specified in Section 1 above. Xx. Xxxxx agrees to (i) devote his
full business time to the business and affairs of IVC, and (ii)
use his best efforts to promote the interests of IVC, and (iii)
perform faithfully and efficiently the responsibilities assigned
to him and listed in Section 2 above.
(b) During the term of this Agreement, Xx. Xxxxx shall not perform
services for any person or entity that competes directly or
indirectly with the Company. Xx. Xxxxx agrees to disclose in
writing to the Board any non-Company activities for which Xx.
Xxxxx receives compensation for services rendered. If the Board
deems such activities to be excessive and to conflict with Xx.
Xxxxx' full time commitment, then the Company shall notify Xx.
Xxxxx in writing to limit those activities to periods in which
no time conflict occurs.
(c) Xx. Xxxxx agrees to abide by general Company policies as the
same are duly adopted by the Board from time to time, so long as
such policies do not conflict with the terms and conditions of
this Agreement.
5. Confidentiality and Non-Disclosure Agreement. Xx. Xxxxx hereby
agrees that he will not at any time, without the express written
consent of the Company: (i) disclose, directly or indirectly,
any Confidential Information (as defined below) to anyone
outside the employ of the Company, or (ii) use, directly or
indirectly, any confidential information for the benefit of
anyone other than the Company.
Confidential Information as used herein means all information of
a business or technical nature disclosed to, learned or
developed by Xx. Xxxxx in the course of his employment by the
Company, which information relates to the business of the
Company or the business of any customer of the Company, or the
business of any other person, firm, corporation, or other entity
which consults with the Company in connection with the business
which is generally not known in the vitamin or soft gelatin
industry. Confidential Information shall include, but is not
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limited to, information and knowledge pertaining to soft gelatin
capsule formulation or manufacture, vitamin formulation,
manufacturing processes, procedures, packaging, developments,
improvements, methods or operation, sales and profit figures,
customer and client lists, credit and other financial
information about the Company or their customers, and
relationships between the Company and its customers, clients and
others who have business dealings with the Company.
6. Terminations by the Company. The Board of Directors may
terminate the employment of Xx. Xxxxx at any time with or
without cause, and in such event the following shall apply.
"Cause" for termination shall be defined as gross neglect by the
Executive of his duties hereunder, willful failure by the
Executive of a felony committed during the term of this
Agreement, or of any lesser crime or offense involving the
property of the Company or any of its subsidiaries or
affiliates, gross malfeasance by the Executive in connection
with the performance of his duties hereunder, willful engagement
in conduct by the Executive to perform his duties and
responsibilities which he has reason to know is materially
injurious to the Company.
(a) In the event of termination for cause, as defined above, by IVC,
all salary and other benefits paid or provided to the Executive
hereunder shall cease as of the date of the termination, and the
Company shall have no further obligations to the Executive. Upon
a finding by the Board of Directors that the Executive has
willfully failed or refused to observe or perform his duties or
grossly neglected his duties as specifically set forth in
Section 4 hereof. IVC may terminate this Agreement for cause
provided that the Board of Directors has first notified the
Executive at least thirty (30) days after each such occasion to
remedy such breach of duty.
(b) In the event of termination by IVC without cause, except as
provided in Section 6(c) hereof, the Company agrees to provide
the Executive with the following:
(i) Xx. Xxxxx shall receive an amount equal to twelve (12)
months base salary plus the value of the other employment
benefits accrued at the time of termination that Xx. Xxxxx
would have received under this Agreement but for such
termination. Such amount shall be payable to Xx. Xxxxx in
bimonthly installments over a period of twelve (12) months
following termination.
(ii) The definition of termination without case shall
include, but not be limited to, any termination relating to
a continuous disability or incapacity of Xx. Xxxxx which
prevents him from performing his duties for a period of not
less than three (3) months as determined by any independent
licensed medical doctor. The definition of termination
without cause shall also include the non-renewal of this
agreement by the Company.
(c) IVC shall be entitled to terminate this Agreement upon a finding
of the Board that Xx. Xxxxx has willfully failed to observe or
perform his obligations or duties as specifically set forth in
Section 4 hereof, provided that the Board has first notified Xx.
Xxxxx on two separate occasions of such failure and has given
Xx. Xxxxx at least thirty (30) days after each
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such occasion to remedy such willful breach of duty. In the
event of a termination under this Section 6(c), IVC shall
provide Xx. Xxxxx with an amount equal to six (6) months base
salary. Such amounts shall be payable to Xx. Xxxxx in bimonthly
installments over a period of six (6) months following
termination.
7. Resignation by Executive. Xx. Xxxxx may terminate this Agreement
and his employment with IVC at any time with our without cause.
In the event of termination by Xx. Xxxxx with cause, he shall
receive an amount equal to twelve (12) months base salary plus
the value of the other employment benefits accrued at the time
of termination that Xx. Xxxxx would have received under this
Agreement but for such termination. Such amount shall be payable
to Xx. Xxxxx in bimonthly installments over a period of twelve
(12) months following termination. For purposes of this Section
7, the Executive termination "for cause" shall be defined as
termination for IVC's willful or permanent breach of its
obligations under this Agreement.
8. Governing Law. The Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey. In the
event of any dispute under this Agreement, it shall be resolved
through binding arbitration in accordance with the rules of the
American Arbitration Association.
9. Validity. The invalidity or unenforceability of any provision or
any provisions of this Agreement shall not effect the validity
or enforceability of any other provision of the Agreement, which
shall remain in full force and effect.
10. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject
matter hereof, superseding all negotiations, prior discussions
and preliminary agreements. This Agreement may not be amended
except in writing executed by the parties hereto. 11. Effect on
Successors in Interest. This Agreement shall inure to the
benefit of and be binding upon heirs, administrators, executors,
successors and assigns of each of the parties hereto.
11. Effect on Successors in Interest. This Agreement shall inure to
the benefit of and be binding upon heirs, administrators,
executors, successors and assigns of each of the parties hereto.
12. Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon
personal delivery, including by facsimile, or by recognized
courier (such as Federal Express), or three (3) business days
after deposit in the United States mail, by registered or
certified mail, addressed to a party at its address shown below
or at such other address or facsimile number as such party may
designate in writing to the other party pursuant to this
section.
13. Assignment. IVC must assign this agreement and delegate all its
rights, duties and obligations hereunder, whether in whole or in
part to any parent, affiliate, successor, or subsidiary
organization or company of IVC or corporation with which IVC may
merge or consolidate or which acquires by purchase or otherwise
all or substantially all of IVC assets, subject to the
provisions of Section 6(d), but such assignment shall not
release IVC from its obligations under this Agreement. The
Executive shall have no right to assign this Agreement.
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14. Severability. If any court of competent jurisdiction should find
any provision of this Agreement invalid or unenforceable, for
any reason, the remaining portion or portions hereof shall
nevertheless be valid, enforceable and carried into effect,
unless to do so would clearly violate the present legal and
valid intention of the parties hereto.
In witness whereof, the Company has caused this Agreement to be signed by a duly
authorized officer, and Xx. Xxxxx has signed this Agreement.
The Company:
IVC Industries, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
By: /s/ E. Xxxxxx Xxxxx
-------------------------
E. Xxxxxx Xxxxx
Chief Executive Officer
Executive:
/s/ Xxxxx Xxxxx
-------------------------
Xxxxx Xxxxx
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