EXHIBIT 10.69
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made effective the 28 day of
February, 2003 by and between Advanced Nutraceuticals, Inc. a Texas corporation
(the "Company") and Xxxxxxx X. XxXxxxxxx ("XxXxxxxxx").
In consideration of the mutual covenants, promises and agreements herein
contained, the Company and XxXxxxxxx hereby covenant, promise and agree to and
with each other as follows:
1. Employment. The Company shall employ XxXxxxxxx and XxXxxxxxx shall be
employed by the Company upon the terms and conditions set forth in this
Agreement.
2. Positions and Duties of Employment. XxXxxxxxx shall be required to
devote his best efforts to the furtherance of his managerial duties with the
Company as the Company's Senior Vice President - Finance and Chief Financial
Officer. XxXxxxxxx agrees to devote such time to the business of the Company as
is necessary to competently perform his duties for the Company. While serving in
these corporate capacities, XxXxxxxxx shall have the responsibilities, duties,
obligations, rights, benefits and requisite authority as is customary for his
positions and as may be determined by the Company's President and as set forth
in the Bylaws of the Company.
XxXxxxxxx understands that his employment as Senior Vice President -
Finance and Chief Financial Officer involves a high degree of trust and
confidence, that he is employed for the purpose of maintaining and furthering
the Company's financial reporting processes and SEC compliance and improving the
Company's operations and profitability, and that in executing this Agreement he
undertakes obligations set forth herein to accomplish such objectives. XxXxxxxxx
agrees that he shall serve the Company fully, diligently and competently, and to
the best of his ability. XxXxxxxxx certifies that he fully understands his right
to discuss this Agreement with his private attorney, that to the extent, if any,
he desires, he has availed herself of this right, that he has carefully read and
fully understands this entire Agreement, and that he is voluntarily entering
into this Agreement.
3. Term. Except as otherwise provided in this Agreement, the term of this
Agreement (the "Term") shall be for a period of two years commencing on the
effective date of this Agreement and shall terminate two years thereafter.
Should XxXxxxxxx'x employment be continued by the Company, by mutual informal
agreement among the parties, following the termination date of this Agreement,
the provisions of this Agreement, exclusive of this Section 3, shall remain as
binding between the parties until the employment is terminated, or until the
parties agree to revised employment terms.
4. Compensation. XxXxxxxxx shall receive the following as compensation:
(a) XxXxxxxxx shall receive a base salary at an annual rate of $150,000 for
his employment by the Company pursuant to this Agreement, payable in accordance
with the Company's customary payroll practices.
(b) In addition to his base salary, XxXxxxxxx shall be entitled to a
performance bonus at the discretion of the Board.
(c) The Company shall provide XxXxxxxxx 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) XxXxxxxxx shall be entitled to leaves for vacations for periods
reasonably determined by the Company. In addition, XxXxxxxxx shall be entitled
to reasonable absences for attendance at business seminars and conventions.
(e) Any payment which the Company shall make to XxXxxxxxx pursuant to this
Agreement shall be reduced by standard withholding and other authorized
deductions.
(f) During the term of his employment, XxXxxxxxx shall be reimbursed for
reasonable expenses incurred by his 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, apply
for and procure as owner and for its own benefit or the benefit of any lender of
the Company, insurance on XxXxxxxxx'x life, in any amount and form or forms that
the Company may choose. XxXxxxxxx 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 XxXxxxxxx'x
employment under this Agreement for any reason, XxXxxxxxx 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 XxXxxxxxx obtained during the time
of his employment. During the term of this Agreement or for a period of one year
thereafter, XxXxxxxxx shall neither disclose to any other person or entity, nor
use for his own personal benefit, any information obtained during his employment
by the Company that is not otherwise publicly known, relating to the financial
affairs 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, XxXxxxxxx will not influence or attempt to influence any of the
Company's 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 he solicit any of the
Company's employees who earned annually $25,000 or more as a Company employee
during the last six months of his or his 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.
(a) The Company shall have the right at any time to terminate XxXxxxxxx'x
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 XxXxxxxxx; or
(iii) If the Company determines in good faith that the Disability of
XxXxxxxxx has occurred (pursuant to the definition of Disability set
forth below), it may give to XxXxxxxxx written notice in accordance
with Section 13 of its intention to terminate XxXxxxxxx'x employment.
In such event, XxXxxxxxx'x employment with the Company shall terminate
effective upon receipt of such notice by XxXxxxxxx, provided that,
upon receipt, XxXxxxxxx shall not have returned to full-time
performance of his duties. For purposes of this Agreement,
"Disability" shall mean a physical or mental impairment which
substantially limits a major life activity of XxXxxxxxx which renders
XxXxxxxxx unable to perform the essential functions of his 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 XxXxxxxxx and/or his medical
personnel as well as information from medical personnel (or others)
selected by the Company or its insurers; or
(iv) XxXxxxxxx 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 XxXxxxxxx has engaged or committed: willful
misconduct; gross negligence; theft, fraud or other illegal conduct;
refusal or unwillingness to perform his duties; sexual harassment;
violation of any fiduciary duties; violation of any duty of loyalty;
or a material 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 XxXxxxxxx'x employment is terminated by the Company for any reason
other than those set forth in sections 7(a)(iv) through 7(a)(v) above, then the
Company shall pay "Termination Pay" to XxXxxxxxx in full settlement of any and
all claims of XxXxxxxxx arising out of or in connection with his employment by
the Company which shall be evidenced by a general release and waiver of claims
against the Company and its affiliates in a form reasonably acceptable to the
Company executed by XxXxxxxxx. The "Termination Pay" shall consist of six
months' salary, which shall be paid in six equal monthly installments,
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. Such payments shall be made in accordance with the
Company's customary payroll practices and shall be subject to applicable
withholding and payroll deductions.
(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 or other form of corporate reorganization in which it becomes a
wholly-owned subsidiary of another entity (unless such entity is a holding
company and the shareholders of the Company have approved the reorganization)
and XxXxxxxxx'x employment is thereafter terminated by the Company
notwithstanding that no "Material Breach" has occurred, then XxXxxxxxx shall be
entitled to "Termination Pay."
(d) For purposes of this Section 7, voluntary termination of employment by
XxXxxxxxx as a result of a material change by the Company in XxXxxxxxx'x job
responsibilities shall be deemed to be termination by the Company without a
"Material Breach" and XxXxxxxxx shall be entitled to "Termination Pay".
(e) XxXxxxxxx 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 XxXxxxxxx 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 XxXxxxxxx nor the Company shall have any
further obligations under any of the provisions of this Agreement except that
XxXxxxxxx shall be entitled to "Termination Pay".
(f) If during the term of this Agreement, XxXxxxxxx shall be entitled to
"Termination Pay" under any of the above Section 7, provisions, then XxXxxxxxx
shall also granted an immediate vesting of any granted but not yet vested, stock
options under any of the Company's currently existing or here-after approved
stock option plans. XxXxxxxxx shall have the right to waive this vesting grant,
but only at his option and only in writing. The period for termination of any
rights to exercise any such stock options held by XxXxxxxxx, which would
otherwise lapse under the terms of such plans, with termination of employment,
shall not commence until the Company has given XxXxxxxxx notice of his rights
under this Section 7 (f).
(g) XxXxxxxxx agrees that the payments contemplated by this Agreement shall
constitute the exclusive and sole remedy for any termination of his employment
and XxXxxxxxx 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 provisions of
Section 2 or 6 of this Agreement, the Company shall be entitled to an injunction
restraining XxXxxxxxx from such breach. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies for such breach or
threatened breach.
9. Severability. It is the clear intention of the parties to this 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 XxXxxxxxx of the 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 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
enforcement, shall be governed by the laws of the State of Texas.
13. Notices. Any notice pursuant to this Agreement shall be validly 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: Advanced Nutraceuticals, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxx 00
Xxxxxx, XX 00000
With a copy to: Bactolac Pharmaceutical, Inc.
0 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
If to XxXxxxxxx: 0000 X. Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
All notices so given shall be deemed effective upon receipt. Either party, by
notice so given, may change the address to which his or its future notices shall
be sent.
14. Assignment and Binding Effect.
(a) This Agreement shall be binding upon XxXxxxxxx and the Company and
shall benefit the Company and its successors and assigns.
(b) This Agreement shall not be assignable by XxXxxxxxx.
15. Headings. The headings in this Agreement are for convenience only; they
form no part of this Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
Advanced Nutraceuticals, Inc.
By:__________________________________
Authorized Officer
__________________________________
Name Printed Title
__________________________________
Xxxxxxx X. XxXxxxxxx, Individually
