Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") dated as of June 6, 2005
between PURE WORLD, INC., a Delaware corporation (the "Company"), and Xxxx X.
Xxxxxxx (the "Consultant").
RECITALS
The Consultant currently serves as Chairman of the Company.
The Company, NATUREX, S.A., a societe anonyme organized under the laws of
the French Republic ("Parent"), and NATUREX ACQUISITION CORP., a Delaware
corporation and wholly owned subsidiary of Parent ("Purchaser"), are parties to
that certain Agreement and Plan of Merger dated the date hereof (the "Merger
Agreement") pursuant to which Purchaser will acquire all of the outstanding
shares of common stock of the Company, including those of Consultant, and
Purchaser will be merged with and into the Company with the Company continuing
as the surviving corporation and an indirect wholly-owned subsidiary of Parent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Merger Agreement.
Concurrent with the execution and delivery of the Agreement and the Merger
Agreement, Consultant and the Company have entered in to an Amendment to that
certain Employment Agreement (the "Employment Agreement") dated as of November
11, 2003 between Consultant and the Company pursuant to which Consultant is
entitled to certain payments if Consultant terminates his employment with the
Company following a Change of Control (as such term is defined in the Employment
Agreement).
The Company desires that Consultant continue to provide certain consulting
services to the Company conditioned upon Consultant terminating his employment
following a Change in Control, and Consultant is willing to provide such
consulting services.
NOW, THEREFORE, the parties agree as follows:
1. Consulting Services. Upon the terms and subject to the conditions set
forth in this Agreement, commencing on the Termination Date, as such term is
defined in the Employment Agreement, the Company shall engage Consultant as a
consultant, and Consultant shall accept such engagement.
2. Services. Consultant shall serve as a consultant to the Company and
shall have such duties and responsibilities consistent with Consultant's present
status with the Company as the Company shall from time to time determine. The
Consultant shall devote such amount of his working time, attention and efforts
to the business and affairs of the Company as may be reasonably required by the
Company but not to exceed ten hours per month and which shall be scheduled so as
not to interfere with Consultant's other business interests. Consultant may
devote time to his other business interests, including but not limited to
serving as Chairman of Kent Financial Services, Inc. and Cortech, Inc., and
engaging in the securities brokerage business, currently as a registered
representative of X. X. Xxxxxxx & Company, Inc.
3. Term of Agreement. The term (the "Term") of the Agreement shall
commence on the Termination Date and shall expire on the third anniversary of
the Termination Date.
4. Compensation.
4.1 Services. For all services rendered by Consultant under this
Agreement, the Company shall during the Term pay Consultant an annual consulting
fee of $100,000 (the "Consulting Fee") in equal monthly installments.
4.2 Termination of Employment Agreement. The Employment Agreement shall be
terminated in accordance with Section 6.3 thereof upon Purchaser accepting for
payment any Shares tendered pursuant to the Offer and the payments then due the
Executive under Section 6.3 (i.e., $645,000), shall be paid to Executive
simultaneously with payment for the Shares tendered in the Offer.
5. Benefits, Expense Reimbursement.
5.1 Benefit Plans. The Company shall provide Consultant with such medical
and hospital insurance benefits currently made available to executive level
employees of the Company to the extent Consultant is eligible to participate in
such plans. If, as a result of his termination of employment, Consultant is no
longer eligible to participate in such medical and hospital insurance benefit
plans, the Company shall provide comparable coverage to Consultant; provided
that the cost to the Company for providing such coverage shall not exceed the
current cost to the Company of providing such coverage. The Company may, at its
option, satisfy its obligation to provide such coverage for the portion of the
Term that coverage is available pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") by paying, on behalf of Consultant, the
premium required to continue coverage under COBRA.
5.2 Expenses. The Company shall reimburse Consultant for all expenses
incurred by Consultant in connection with the performance of his duties for the
Company under this Agreement in accordance with the standard expense
reimbursement policies of the Company as in effect from time to time.
5.3 Death Benefits. If Consultant dies during the Term, payments pursuant
to Section 4 shall not cease and the Company shall continue to pay to
Consultant's estate the payments provided for in Section 4 during the remainder
of the Term.
5.4 Automobile. The Company shall provide to Consultant continued use of
the same automobile (or equivalent) as the Company has heretofore provided to
Consultant and upon the same terms and conditions.
6. Covenant Not to Compete.
6.1 Covenant. Subject to Section 6.2, from the date hereof through the end
of the Term, Consultant shall not do any of the following:
i. Engage, directly or indirectly, in (a) the nutraceutical
business, (b) the businesses currently conducted by the
Company or any of its subsidiaries or affiliates or (c) any
business similar to the business currently being conducted by
the Company or any of its subsidiaries or affiliates,
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including, but not limited to, the manufacture and sale of
botanical extracts, flavors and fragrances (x) within 100
miles of any of the facilities of the Company, any of its
subsidiaries or affiliates or the U.S. subsidiaries of Parent,
(y) anywhere else in the United States or (z) anywhere else in
the world for sale or distribution of goods into the United
States.
ii. Engage, directly or indirectly, in any way in the solicitation
of employees or independent contractors of the Company or its
subsidiaries or affiliates in connection with any job, venture
or other employment opportunity of any nature.
iii. Interfere in any material way, directly or indirectly, whether
for his own account or for the account of any other person,
firm, corporation or other business organization, with the
Company's relationship with, or endeavor to entice away from
the Company, any person, firm corporation or other entity who
or which was an executive employee, consultant, distributor,
agent, contractor, supplier, source of material and/or product
or customer of, the Company.
iv. Engage, directly or indirectly, with Xx. XxxXx Xxxxx or any of
his affiliates in activities that are competitive with the
activities of the Company or any of its subsidiaries or
affiliates.
6.2 Engagement in Business. For purposes of this Section 6, Consultant
shall be deemed directly or indirectly engaged in a business or activity if he
participates in such business or activity as a material proprietor, partner,
joint venturer, stockholder, director, officer, manager, employee, consultant,
advisor or agent or if he controls such business or entity. Notwithstanding the
above, Consultant shall not be deemed a stockholder merely by reason of holding
less than five percent (5%) of the outstanding equity of any publicly-owned
corporation; provided that Consultant shall not be in a control position with
regard to such corporation.
6.3 Rights and Remedies Upon Breach. In the event of any breach or
threatened breach of any of the preceding provisions of Sections 6 or 7, the
Company shall have the right to obtain specific enforcement and performance of
such provisions by any court of competent jurisdiction, it being agreed that any
such breach or threatened breach would cause irreparable injury to the Company
and that money damages would not provide an adequate remedy to the Company.
Consultant acknowledges that the restrictive covenants set forth in Sections 6
or 7 are reasonable and necessary to protect and maintain the proprietary and
other legitimate business interests of the Company and its subsidiaries and
affiliates and that the enforcement of such restrictive covenants shall not
prevent Consultant from earning a livelihood. Consultant further acknowledges
that the remedy at law for any breach or threatened breach of Sections 6 or 7,
if such breach or threatened breach is held by a court to exist, shall be
inadequate and, accordingly, that the Company and its subsidiaries and
affiliates shall, in addition to all other available remedies, be entitled to
injunctive relief without being required to post bond or other security and
without having to prove the inadequacy of the available remedies at law. Such
right shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity. The period of time during which
the provisions of Section 6.1 shall apply shall be extended by the length of
time during which Consultant is in breach of the terms of Section 6.1.
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6.4 Validity of Provision. The provisions in this Section 6 shall be
construed as a separate covenant covering competition in each of the separate
cities, counties, states or other jurisdictions in which the Company is engaged
in business and, to the extent that it shall be judicially determined to be
illegal or unenforceable in any such cities, counties, states or other
jurisdictions, the provisions hereof will be valid and enforceable in those
jurisdictions and for those periods of time in which such provisions are valid
and enforceable
7. Confidential Information.
7.1 No Disclosure; Definition of Confidential Information. Consultant
shall not at any time during the Term or thereafter use for his own benefit
and/or reveal, divulge or publish or make known, directly or indirectly, to any
person, including for example and not by way of limitation, any information
contained in the Company's books and records, any customers of the Company and
any other business information relating to the business of the Company, whether
written or oral, that Consultant has acquired during the Term (hereinafter
referred to as "Confidential Information"). Notwithstanding the above, the term
Confidential Information shall not include: (i) any information which is in the
public domain and could readily be known or determined without being employed by
the Company or which enters the public domain through no breach of Consultant's
obligations hereunder; and (ii) any information which Consultant acquires
through or from parties independent of the Company, but only to the extent
Consultant can verify the independence of his information or knowledge to the
reasonable satisfaction of the Company; and (iii) any information required to be
disclosed by law or regulation.
7.2 Information Held in Trust. Consultant shall hold in trust and
confidence for the benefit of the Company all Confidential Information of the
Company, and Consultant shall not disclose such Confidential Information for any
purpose other than on behalf of the Company in accordance with his duties under
this Agreement. Consultant shall not make any copies of Confidential Information
without the express prior written consent of the Company. It is hereby expressly
understood that by disclosing the Confidential Information to Consultant, the
Company does not grant any express, implied or other license or right of any
nature to Consultant with respect to the Confidential Information.
7.3 Duties Upon Termination. Upon expiration of the Term or termination of
Consultant's services for the Company irrespective of the time, manner or cause
of such Termination and upon written request by the Company, Consultant shall
surrender to the Company or destroy all lists, books, records and documents
provided by, belonging to, relating to or used in connection with the Company's
business and/or all other property belonging to the Company or to the Company's
customers.
7.4 Information from Consultant. The Company does not wish to receive any
confidential information from Consultant. Any and all information disclosed by
Consultant to the Company shall not be deemed confidential, and the Company
shall be under no obligation to retain any such information in confidence.
8. No Conflicting Commitments. Consultant represents and warrants to the
Company that he has no commitments or obligations of any kind whatsoever
inconsistent with this Agreement and is under no disability of any kind
whatsoever which would impair, infringe upon or limit Consultant's ability to
enter this Agreement or to perform the services required hereunder.
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9. Governing Law. This Agreement has been executed and delivered in the
State of New Jersey, and shall in all respects be interpreted, construed, and
governed by and in accordance with the laws of the State of New Jersey. Except
as otherwise herein provided, all actions or proceedings arising directly,
indirectly or otherwise in connection with, out of, related to, or from this
Agreement shall be litigated exclusively and only in courts having situs within
the State of New Jersey, and the parties hereby consent and submit to the
jurisdiction of any state or federal court located in the State of New Jersey.
10. Independent Contractor. Consultant shall perform his services
hereunder as an independent contractor, and nothing contained herein shall be
deemed to create any association, partnership, joint venture, or relationship of
principal and agent or master and servant between the parties hereto or any
affiliates or subsidiaries thereof, or to provide either party with the right,
power, or authority, whether express or implied, to create any such duty or
obligation on behalf of the other party.
11. Notices. All notices hereunder shall be in writing and personally
delivered or mailed by registered or certified mail, following address return
receipt requested, to the following address:
If to the Company:
Pure World, Inc.
000 Xxxx Xxxxxx
X.X. Xxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
Attention: : President
with a copy to:
Prior to the Termination Date:
Xxx X. Xxxxxx, Esq.
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
On or after the Termination Date:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxx & Priest LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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If to the Executive:
Xxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxx
P. O. Xxx 00
Xxx Xxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxx X. Xxxxxx, Esq.
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
The Company or Consultant may hereafter designate another address to the other
in writing for purposes of notices under this Agreement.
12. Waivers. Any waiver by any party of any violation of, breach of or
default under any provision of this Agreement by the other party shall not be
construed as, or constitute, a continuing waiver of such provision, or waiver of
any other violation of, breach of or default under any other provision of this
Agreement.
13. Assignability. This Agreement shall not be assignable by the Company
without the written consent of Consultant, except that if the Company merges or
consolidates with or into, or transfers substantially all of its assets to,
another corporation or other form of business organization, this Agreement shall
be binding on Consultant and be for the benefit of and binding upon the
successor of the Company resulting from such merger, consolidation or transfer
without Consultant's consent. Consultant may not assign, pledge, or encumber any
interest in this Agreement or any part thereof without the express written
consent of the Company, this Agreement being personal to Consultant.
14. Severability. Each provision of this Agreement constitutes a separate
and distinct undertaking, covenant and/or provision hereof. If any provision of
this Agreement shall finally be determined to be unlawful, such provision shall
be deemed severed from this Agreement, but every other provision of this
Agreement shall remain in full force and effect, and in substitution for any
such provision held reflecting the original unlawful, there shall be substituted
a provision of similar import intent of the parties hereto to the extent
permissible under law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first set forth above written.
THE COMPANY:
PURE WORLD, INC.
By: /s/ Qun Xx Xxxxx
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Name: Qun Xx Xxxxx
Title: President
CONSULTANT:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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