EMPLOYMENT AGREEMENT
EXHIBIT
10.2
THIS
EMPLOYMENT AGREEMENT
(“Agreement”) is made and entered into as of the 1st day of July, 2005
(“Commencement Date”), by and between HYDRON
TECHNOLOGIES, INC.,
a New
York corporation (“Employer or the “Company”), and XXXXX
XXXXXXX, an
individual (“Employee”).
RECITALS
WHEREAS,
Employer has developed proprietary products and technology, marketed products
under the Hydron™ trademark, and currently sells product under private label
under the ReversAge™ brand name of Reliv International, Inc. and has a license
to use the HydronÔ
polymer
for certain products and in certain fields, and a license to use the Hydron™
trademark and owns certain other trademarks, and licenses and owns certain
patents relating to development, manufacture, and sale of products for use
by
consumers as health and beauty aids (“Employer’s Business”); and
WHEREAS,
Employer desires to employ Employee as Chief Executive Officer, and Employee
desires to be employed in such position; and
WHEREAS,
In
order to provide for the management of the Company, Employer desires to employ
Employee to provide such services as may be required hereunder in connection
with the Employer’s Business; and
WHEREAS,
Employer, through the expenditure of substantial amounts of money and effort,
has developed certain confidential and/or proprietary information which has
become of great value to Employer in establishing and developing relationships
with current and potential vendors, clients and personnel, and in building
its
good will and operations; and, as a result, Employer enjoys certain material
competitive advantages over its competition; and
WHEREAS,
Employee will be employed by Employer in a confidential relationship in
connection with which Employer will disclose certain confidential and/or
proprietary information to Employee.
NOW,
THEREFORE,
in
consideration of Employee’s employment and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
agree
as follows:
1. Recitals.
The
Recitals are hereby incorporated into this Agreement by this
reference.
2. Employment.
Employer hereby employs Employee, and Employee hereby accepts employment, upon
the terms and subject to the conditions contained in this Agreement. Employee
represents and warrants to Employer that Employee’s execution and delivery of
this Agreement and the performance of his duties as an employee of Employer
do
not and will not breach or conflict with any obligation of Employee to any
third
party or any obligation to keep confidential any information acquired by
Employee prior to his employment hereunder. The parties agree that the
employment relationship is for an initial term of three (3) years, commencing
on
the Commencement Date (the “Initial Term”), and thereafter is on an at-will
basis and the Employer and Employee, each party has the right and ability to
terminate Employee’s employment at any time by written notice to the other after
the Initial Term for any reason or no reason, but until such notice is
delivered, this Agreement shall continue in full force and effect (the
“Term”).
3. Duties.
Employee shall be employed as Chief Executive Officer of the Company, shall
faithfully and competently perform such duties as are inherent in such position
and shall also perform and discharge such other executive employment duties
and
responsibilities consistent with his position as Chief Executive Officer of
the
Company. Employee shall perform his duties at such places and times as the
Board
of Directors of the Company (the “Board”) may reasonably prescribe. Except as
may otherwise be approved in advance by the Board, and except during holidays,
vacation periods and reasonable periods of absence due to illness, personal
injury or other disability or personal affairs, Employee shall devote his full
time during normal business hours while employed hereunder to the services
required of him hereunder. Employee shall render his business services
exclusively to the Company during his employment hereunder and shall use his
best efforts, judgment and energy to improve and advance the business and
interests of the Company in a manner consistent with the duties of his
position.
4. Director.For
so
long as the Employee is employed under this Agreement, the Company shall
nominate Employee as a member of the Board of Directors of the Company, subject
to election by the requisite vote of shareholders at the annual meeting of
shareholders of the Company.
5. Salary.
(a) Salary.
As
compensation for the performance by Employee of the services to be performed
by
Employee hereunder during the Initial Term, the Company shall pay Employee
a
base salary at the annual rate of ONE HUNDRED SIX THOUSAND
DOLLARS
($106,000.00), (said amount, together with any increases thereto as provided
in
this Section 5(a), being hereinafter referred to as “Salary”). Any Salary
payable hereunder shall be paid in regular intervals (but in no event less
frequently than monthly) in accordance with the Company’s payroll practices from
time to time in effect. The Salary payable to Employee pursuant to this Section
4(a) shall be subject to review annually on the anniversary of the Commencement
Date and may be adjusted as determined from time to time by the Board in its
sole discretion.
(b) Withholding,
Etc.
The
payment of Salary hereunder shall be subject to applicable withholding and
payroll taxes, and other such deductions as may be required by law or under
the
Company’s employee benefit plans.
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6. Other
Benefits.
During
Employee’s employment hereunder, Employee shall:
| (i) |
receive
the standard benefits afforded to senior officers of the Company,
including health insurance, certain annual compensated absences for
vacation, holidays, and personal days;
and
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| (ii) |
participate,
to the extent to be determined in the sole discretion of the Board
from
time to time, in the Hydron Technologies, Inc. 2003 Stock Plan and
any
future employee equity incentive plan adopted by the Company or by
any
affiliate of the Company in which executive employees of the Company
are
eligible to participate (the “Employee Incentive Plan”), the vesting and
other qualification provisions of which shall be as set forth in
the
Employee Incentive Plan.
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7. Termination.
(a) Expiration
of Initial Term.
Employer
may terminate Employee’s employment at the expiration of the Initial Term in
accordance with the terms of Section 2, above.
(b) Termination
upon Death.
If the
Employee dies during the Term, this Agreement shall terminate.
(c) Disability.
If
during the Term the Employee becomes physically or mentally disabled so that
the
Employee is unable substantially to perform the Employee’s services hereunder
for (a) a period of 120 consecutive days, or (b) for shorter
periods
aggregating 120 days during any 365-day period, the Company may at any time
after the last day of the four consecutive months of disability or the day
on
which the shorter periods of disability equal an aggregate of 120 days terminate
the Employee’s employment under this Agreement by written notice to the
Employee. In the event that the Employee’s employment under this Agreement is
terminated pursuant to this Section 7(c), Employer will pay Employee’s
Salary and
benefits to which he is entitled under this Agreement through the date of
disability. Nothing
contained in this Section 7(c) shall be deemed to extend the Term or
to
constitute a breach of this Agreement.
(d)
Employer
may terminate Employee for “cause” in the event of (i) a material breach by
Employee of any provisions of the Agreement, which breach is not remedied or
cured within thirty (30) days after receipt by Employee of written notice
thereof by Employer or, if such breach cannot reasonably be cured within thirty
(30) days, the commencement of the cure process within such thirty (30) days
and, thereafter, Employee diligently pursues attempts to cure to a final
conclusion, which cure shall be completed within seventy-five (75) days of
the
aforesaid receipt of written notice; or (ii) Employee being convicted of or
pleading nolo contendere to any illegal act or acts of dishonesty or moral
turpitude on the part of Employee. A valid termination in accordance with this
Section 7(d) shall be deemed a “Bona-Fide Termination.” Upon a Bona-Fide
Termination of this Agreement in accordance with Section 7(d), Employer shall
pay Employee his Salary through the date of termination, but shall have no
further future salary obligation of any kind to Employee under this Employment
Agreement.
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8. Restrictive
Covenants.
The
terms and conditions of Annex
A
with
respect to certain restrictive covenants binding on the Employee are hereby
incorporated herein by reference and made a part hereof.
9. Injunction.
It is
recognized and hereby acknowledged by the parties hereto that a breach by the
Employee of any of the covenants contained in Annex
A
of this
Agreement will cause irreparable harm and damage to the Employer, the monetary
amount of which may be virtually impossible to ascertain. As a result, the
Employee recognizes and hereby acknowledges that the Employer shall be entitled
to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in
Annex
A
to this
Agreement by the Employee or any of his affiliates, partners or agents, either
directly or indirectly, and that such right to injunction shall be cumulative
and in addition to whatever other remedies the Employer may possess at law
or in
equity. This Section 9 shall survive the termination of Employee’s employment or
this Agreement for any reason. The provisions of this Agreement shall be
enforceable in law and in equity notwithstanding the existence of any claim
or
cause of action by the Employee against the Employer whether predicated on
this
Agreement or otherwise.
10. Arbitration.
Any
dispute or claim arising out of or relating to Employee’s employment including
but not limited to, the Civil Rights Act of 1991, Title VII of the Civil Rights
Act of 1964, as amended, the Civil Rights Act of 1866, the Age Discrimination
in
Employment Act of 1967 as amended, Florida Statute § 760.10, the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974,
or any other law, ordinance, or other obligation of any kind arising in law
or
equity (except for any dispute involving application of the injunctive relief
provided by Section 9) shall be submitted to arbitration pursuant to the
commercial arbitration rules of the American Arbitration Association. Except
as
otherwise provided, this Agreement shall be governed by the United States
Arbitration Act. An arbitration award rendered pursuant to this Section shall
be
final and binding on the parties and may be submitted to any court of competent
jurisdiction for entry of judgment thereon. The parties agree that punitive
damages may not be awarded in an arbitration proceeding required by the
Agreement.
11. Benefits;
Binding Effect.
This
Agreement shall be for the benefit of and binding upon the parties hereto and
their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns. Notwithstanding the forgoing, the
Employee may not assign his rights or benefits, or delegate any of his duties,
hereunder without the prior written consent of the Employer. The Employer may
assign its rights or benefits, or delegate any of its duties, hereunder without
the prior written consent of the Employee.
12. Provisions
Severable.
This
Agreement is intended to be performed in accordance with, and to the extent
permitted by, all applicable laws, ordinances, rules, and regulations of the
State of Florida. If any provision of this Agreement shall be adjudicated to
be
invalid or unenforceable, then such provision shall be deemed modified, as
to
duration, territory or otherwise, so as to be enforceable in a manner such
that
its substantive effect is as similar as possible to the provision at issue
consistent with rendering the remainder of this Agreement valid and enforceable.
The invalidity or unenforceability of any provision of this Agreement shall
not
affect the other provisions hereof, and this Agreement shall be construed in
all
respects as if such invalid or unenforceable provision were
omitted.
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13. Waivers.
The
Employer’s failure to insist upon strict adherence to any provisions or covenant
of this Agreement on any occasion shall not be deemed a waiver or deprive the
Employer of its right thereafter to insist upon strict adherence to that
provision, or covenant or any other provision, or covenant of this Agreement.
A
waiver of any provision or covenant hereof shall not be effective unless in
writing, and shall not operate or be construed as a continuing waiver thereof
or
as a waiver of any other similar or dissimilar provision or
covenant.
14. Enforcement.
The
Employer’s failure or refusal to enforce any of the terms contained in this
Agreement against any other employee or former employee for any reason, shall
not constitute a defense to the enforcement of this Agreement against
Employee.
15. No
Third Party Beneficiary.
Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon or give any person (other than the parties hereto, and their
respective heirs, personal representatives, legal representatives, successors
and, where applicable, assigns) any rights or remedies under, or by reason,
of
the Agreement.
16. Headings.
The
headings set forth in this Agreement are for convenience only and shall not
be
considered as part of this Agreement in any respect, nor shall they in any
way
affect the substance of any provisions contained in this Agreement.
17. Gender.
Any
pronoun used herein may be deemed to mean the corresponding masculine, feminine
or neuter in form thereof and the singular form of any nouns and pronouns herein
may be deemed to mean the corresponding plural and vice versa as the case may
require.
18. Drafter.
Each
party acknowledges that they have had the opportunity to seek the advice of
counsel and agree that this Agreement has been fully negotiated and agreed
upon
by both parties. This Agreement shall not be construed against the drafter
of
the document because they drafted the document as they have done so merely
for
the convenience of the parties.
19. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida without regard to the conflict of laws provisions thereof.
EMPLOYEE HAS READ THIS AGREEMENT CAREFULLY AND EMPLOYEE UNDERSTANDS AND ACCEPTS
THE OBLIGATIONS WHICH IT IMPOSES UPON HIM WITHOUT RESERVATION. NO PROMISES
OR
REPRESENTATIONS HAVE BEEN MADE TO EMPLOYEE TO INDUCE HIM TO SIGN THIS AGREEMENT.
EMPLOYEE SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE, WITH THE
UNDERSTANDING THAT ONE COUNTERPART WILL BE RETAINED BY EMPLOYER AND THE OTHER
COUNTERPART WILL BE RETAINED BY EMPLOYEE.
20. Survival.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement.
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21. Entire
Agreement; Modifications.
This
Agreement, including any Annex or Exhibit hereto, constitutes the entire and
final expression of the agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, oral and written, between
the
parties hereto with respect to the subject matter hereof. This Agreement may
be
modified or amended only by an instrument in writing signed by both parties
hereto.
22. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. In addition, facsimile signatures shall be deemed original, valid
and binding signatures to this Employment Agreement.
23. Further
Assurances.
The
Employee will execute and deliver such further instruments and do such further
acts and things as may be required to carry out the intent and purposes of
this
Agreement.
24. Notices.
Any
notice required or permitted or permitted to be given under this Agreement
shall
be in writing and shall be deemed to have been given when delivered by hand
or
when deposited in the United States mail, by registered or certified mail,
return receipt requested, postage prepaid addressed as follows:
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To
the Employer:
|
Hydron
Technologies, Inc.
|
|
0000
Xxxx Xxxxxx Xxxx
|
|
|
Xxxxxxxx
0 Xxxxx 0X
|
|
|
Xxxxxxx
Xxxxx, Xxxxxxx 00000
|
|
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Phone:
(000) 000-0000
|
|
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Facsimile:
(000) 000-0000
|
|
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Attention:
Chief Operating Officer
|
|
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To
the Employee:
|
Mr.
Xxxxx Xxxxxxx
|
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0000
00xx
Xxxxxx Xxxxx
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Warehouse
F
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St.
Petersburg, Florida 33714
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or
to
such other address as any party shall specify by written notice so given, and
such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the date first above written.
EMPLOYEE
/s/
Xxxxxxx
Xxxxx
Xxxxxxx, individually
SS#:
on
file
HYDRON
TECHNOLOGIES, INC.
By:
/s/
Banakus
Xxxxxxx
Xxxxxxx, its Interim President
-7-
ANNEX
A
RESTRICTIVE
COVENANTS
The
following covenants between Employee and Employer (“Covenants”) constitute a
material part of the consideration for Employee’s employment by Employer
pursuant to the Agreement to which these Covenants are annexed:
1. No
Conflict.
Employee has not entered into, and Employee agrees that he will not enter into,
any agreement either written or oral in conflict with this Agreement or
Employee’s employment with Employer. Employee agrees that he will not violate
any agreement with or rights of any third party or, except as expressly
authorized by Employer in writing hereafter, use or disclose Employer’s or any
third party’s confidential information or intellectual property when acting
within the scope of Employer’s employment or otherwise on behalf of Employer.
2. Nondisclosure.
Employee agrees that all Inventions and all other business, technical and
financial information, including without limitation, information concerning
the
Employer, its affiliates, and/or subsidiaries’ financial condition, prospects,
technology, processes, customers, clients, applicants, employees, pricing,
cost
information, methods of doing business, marketing and promotion of Employer,
its
affiliates and/or subsidiaries’ services, and any other confidential or
proprietary information, trade secrets and intellectual property rights relating
to the Employer, its affiliates and/or subsidiaries, or other information
regarding the Employer’s business or the business of Employer’s affiliates and
or subsidiaries or that of their respective suppliers or customers that is
not
generally known, he may develop, learn or obtain during the term of his
employment that relates to Employer or the business or demonstrably anticipated
business of Employer or that are received by or for Employer in confidence,
constitute “Proprietary Information.” Employee agrees to hold in confidence and
not disclose, at any time, directly or indirectly, to any person, governmental
agency, firm, corporation or entity whatsoever, or use for his own benefit
or
for the benefit of others, except use within the scope of his employment, any
Proprietary Information. However, Employee shall not be obligated under this
paragraph with respect to information he can document is or becomes readily
available to the public without restriction through no fault of
him.
3. Return
of Property; Non-Expectation of Privacy.
Upon
the termination of his employment with the Employer for any reason whatsoever,
Employee shall surrender and deliver to the Employer all property of the
Employer, its affiliates, and/or subsidiaries, including but not limited to
all
equipment and, without retaining copies thereof, any and all written materials,
computer programs and software prepared by Employee in connection with his
employment by the Employer, any and all manuals, brochures, customer lists,
price lists, books, salespersons’ records, projections, plans, computer
software, computer programs, intellectual property, forecasts, technical data,
invoices, product information, correspondence, Proprietary Information and
all
other material, records and accounts of any kind that may be in his possession
or control and which belong to the Employer or were created or devised pursuant
to or in the course of Employee’s employment with the Employer, except that
Employee may keep his personal copies of (i) his compensation records, (ii)
materials distributed to employees generally and (iii) this Agreement. Employee
also recognizes and agrees that he has no expectation of privacy with respect
to
Employer’s telecommunications, networking or information processing systems
(including, without limitation, stored computer files, e-mail messages and
voice
messages) and that Employee’s activity and any files or messages on or using any
of those systems may be monitored at any time without notice.
A-1
4. Non-Solicitation.
Employee agrees that, among other things, for a period of two (2) years
following termination of his employment with the Employer for any reason
whatsoever, the Employee shall not directly or indirectly:
(i) solicit
or accept the trade or patronage of any of the Customers (as defined below)
of
the Employer for himself or for any other person or organization engaging in
the
Employer’s Business. “Customers” shall include any and all persons or
organizations doing business with the Employer, its affiliates, and/or
subsidiaries’ within the two (2) years preceding Employee’s termination of
employment, regardless of whether or not such Customers were previously
customers of the Employee or of others; or
(ii) solicit,
induce, or attempt to induce any other employee (including any temporary
employee) of the Employer or any of its affiliates, or subsidiaries, other
than
Xxxxxxx Xxxxxxx Xxxxx, to leave the employ of the Employer to become connected
with in any way, or employ or utilize any such employee in, any corporation
or
other entity or business of any description whatsoever which competes with
Employer in Employer’s Business.
5. Non-Competition.
Employee agrees that during the term of his employment with Employer (whether
or
not during business hours), he will not engage, alone or by combining or
conspiring with others or in any other manner whatsoever, in any activity,
proprietorship, partnership, corporation, business or other venture (whether
as
an employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise), that is in any way competitive with the business
or
demonstrably anticipated business of Employer, and Employee will not assist
any
other person or organization in competing or in preparing to compete with any
business or demonstrably anticipated business of Employer.
6. Survival.
Employee agrees that his obligations under Sections 2, 3, 4 and 5 of these
Covenants shall continue in effect after termination of his employment,
regardless of the reason or reasons for termination, and whether such
termination is voluntary or involuntary on his part, and that Employer is
entitled to communicate Employee’s obligations under this Agreement to any
future employer or potential employer of Employee. Employee’s obligations under
Sections 2, 3, 4 and 5 also shall be binding upon his heirs, executors, assigns,
and administrators and shall inure to the benefit of Employer, its subsidiaries,
successors and assigns.
A-2
Dated
as
of July 1, 2005
EMPLOYEE:
/s/
Xxxxxxx
Xxxxx
Xxxxxxx, individually
EMPLOYER:
Accepted
and Agreed to:
HYDRON
TECHNOLOGIES, INC., a New York corporation
By:
/s/
Banakus
Name:
Xxxxxxx Xxxxxxx
Title:
Interim President
A-3
