EXHIBIT 4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of the 1st day of June, 2002 by and among
Vitalstate Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx,
Vitalstate Canada Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx,
(Vitalstate Inc. and Vitalstate Canada Ltd.
and are hereinafter referred to both singly and
collectively as the "Corporation"*)
Xxxxxxx Xxxxx
0 Xxxxx Xxxxxx
Xxxxxx-Xxxxxx, Xxxxxx X0X 0X0
Xxxxxx
(the "Executive")
WHEREAS the Corporation is engaged in the business of the creation,
production, sale and marketing of nutraceuticals (hereinafter the "Business");
WHEREAS the Corporation wishes to employ the Executive as its president and
chief executive officer and the Executive agrees to be so employed, in
accordance with terms, covenants and conditions hereinafter set forth;
NOW, THEREFORE, FOR THE REASONS SET FORTH ABOVE, AND IN CONSIDERATION OF
THE MUTUAL PREMISES AND AGREEMENTS HEREINAFTER SET FORTH, THE PARTIES HERETO
ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. NATURE AND TERM OF SERVICES
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1.1 The Corporation hereby employs, engages and hires the Executive as
president and chief executive officer of Vitalstate Inc. and Vitalstate Canada
Ltd., and the Executive hereby accepts and agrees to such hiring, engagement and
employment.
1.2 NATURE OF SERVICES. The Executive agrees that she shall provide her
services to the Corporation on a full-time basis, the whole according to the
terms and conditions hereinafter set forth, as an Executive to the Corporation,
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and her duties as such an Executive shall include, but not be limited to, those
set forth from time to time by the Corporations' respective boards of directors.
In addition, the Executive shall use her best efforts to promote the interests
of the Corporation (hereinafter the "Services").
1.3 TERM. The term of this Agreement (the "Term") shall commence June 1,
2002 and shall continue for a 1 year term ending on May 31, 2003. The Term
shall be automatically renewable at the option of the Executive for an
additional 1 year period, however, subject to earlier termination as provided
herein.
2. COMPENSATION
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2.1 SALARY. In consideration for the Services to be rendered pursuant to
this Agreement, and in further consideration for the confidentiality,
non-competition and non-solicitation covenants described in Article 3 hereof,
the Corporation shall pay the Executive an initial base annual salary of
CDN$90,000 per annum (hereinafter the "Salary") subject to the normal deductions
at source, payable in bi-monthly instalments. During the Term, the annual base
Salary shall be reviewed periodically by the Corporation for possible increase.
2.2 BONUSES. Executive will be eligible to receive an annual bonus payable
in cash and/or shares and/or options of Vitalstate Inc., the amount of which
shall not exceed fifty percent (50%) of Executive's Salary. Both the amount and
terms of payment, if any, shall be determined at the sole and absolute
discretion of the Board of Directors of Corporation, or a compensation committee
thereof.
2.3 SIGNING BONUS. In connection with this Agreement, the Corporation
agrees to issue 100,000 shares of Vitalstate Inc. common stock (the
"Compensation Shares") to the Executive as a signing bonus and to register the
Compensation Shares, as soon as practicable following the execution of this
Agreement, on a registration statement on Form S-8.
2.4 OTHER BENEFITS. Executive shall also be eligible to participate in any
benefit programs of the Corporation, including but not limited to life,
disability or health insurance, pension, retirement or other benefit plans
adopted by the Corporation for the general and overall benefit of all executive
and key employees of the Corporation.
2.5 EXPENSE REIMBURSEMENT. The Corporation will reimburse the Executive for
all documented and approved expenses incurred by the Executive in the
performance of her duties under this Agreement, to be paid in accordance with
the Corporation's practices in effect from time to time.
3. CONFIDENTIAL INFORMATION AND NON-COMPETITION
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3.1 DEFINITION OF CONFIDENTIAL INFORMATION. For the purposes of this
Agreement, the term "Confidential Information" shall mean, but shall not be
limited to, any technical or non-technical data, formulae, patterns,
compilations, programs, patents, trade secrets, devices, methods, techniques,
drawings, designs, processes, procedures, improvements, models, experimental
work, manuals, financial data, financial information, business forecast
information, cash requirement information, organization information, valuation
information, technical information, scientific information, research
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information, lists of actual or potential customers or suppliers, of the
Corporation and any information regarding any of the Corporation's marketing,
sales or dealer network, which is not generally known to the public through
legitimate origins. The Corporation and the Executive acknowledge and agree
that such Confidential Information is extremely valuable to the Corporation. In
the event that any part of the Confidential Information becomes generally known
to the public through legitimate origins (other than by breach of this Agreement
by the Executive), that part of the Confidential Information shall no longer be
deemed Confidential Information for the purposes of this Agreement, but the
Executive shall continue to be bound by the terms of this Agreement as to all
other Confidential Information.
3.2 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Unless otherwise required
by law or expressly authorized in writing by the Corporation, the Executive
shall not, at any time during or after the Term, directly or indirectly, in any
capacity whatsoever, except in connection with services to be performed
hereunder, divulge, disclose or communicate to any person, moral or physical,
entity, firm or any other third party, or utilize for the Executive's personal
benefit or for the benefit of any competitor of the Corporation, any
Confidential Information.
3.3 DELIVERY UPON TERMINATION. Confidential Information and all embodiments
thereof (including any information on computer disk and any reproductions) shall
remain the sole property of the Corporation, and immediately upon request to
this effect or immediately upon termination of this Agreement for any reason,
the Executive shall promptly deliver to the Corporation all correspondence,
drawings, manuals, letters, notes, notebooks, reports, programs, plans,
proposals, financial documents, or any other documents concerning the
Corporation's customers, dealer network, marketing strategies, products and/or
processes which contain Confidential Information.
3.4 COVENANT NOT TO COMPETE. During the Term, and for a period of twelve
(12) months after the termination of the Agreement, the Executive shall not, on
her own behalf or on behalf of another, either alone or in combination with
others, directly or indirectly, in any capacity whatsoever (including, without
limitation, as an employee, employer, principal, agent, joint venture, partner,
shareholder or other equityholder, independent contractor, licensor, licensee,
franchisor, franchisee, distributor, consultant, supplier or trustee):
(i) engage anywhere in Canada and the United States of America
(hereinafter the "Territory") in any aspect of the Business for
purposes which are competitive with the Business as conducted by
the Corporation;
(ii) have any ownership or equity interest in any business, firm,
corporation, joint venture, partnership or other entity engaged
in any aspect of the Business in the Territory (other than 5% or
less of a publicly traded company); or
(iii) consult with or assist any person, moral or physical (other than
the Corporation) who or which is engaged in any aspect of the
Business in the Territory for purposes which are competitive with
the Business as conducted by the Corporation.
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3.5 COVENANT OF NON-SOLICITATION. During the Term, and for a period of
twelve (12) months after the termination of this Agreement, the Executive shall
not, on her own behalf or on behalf of another, either alone or in combination
with others, directly or indirectly, in any capacity whatsoever (including,
without limitation, as an employee, employer, principal, agent, joint venturer,
partner, shareholder, or other equityholder, independent contractor, licensor,
licensee, franchisor, franchisee, distributor, consultant, supplier or trustee):
(i) solicit or assist any third party to solicit any employees of the
Corporation to become an officer, director, employee or agent of
the Corporation or such third party, or otherwise entice away
from the employment of the Corporation any employee of the
Corporation; or
(ii) (a) canvass or solicit (or procure or assist the canvassing or
the soliciting of) any customer of the Corporation for
purposes which are competitive with the Business as
conducted by the Corporation; or
(b) accept (or procure or assist the acceptance of) any business
from any customer of the Corporation for purposes which are
competitive with the Business as conducted by the
Corporation.
3.6 ASSIGNMENT OF CONSULTATION INVENTIONS. The Executive shall disclose and
assign to the Corporation any and all materials of a proprietary nature,
including, but not limited to, material subject to protection as Confidential
Information, trade secrets or as patentable or copyrightable ideas, which the
Executive may conceive, invent, create or discover, either solely or jointly
with another or others, during the Term, in connection with the rendering of
Services hereunder and which relates to or is capable of use in connection with
the business of the Corporation or any services or products offered, performed,
produced, used, sold or being developed by the Corporation at the time said
material is developed.
3.7 ADDITIONAL DOCUMENTATION. The Executive will, upon request of the
Corporation, either during or at any time after the termination of this
Agreement, execute and deliver all papers, including applications for patents or
copyrights, and do such other acts (solely at the Corporation 's expense) as may
be necessary to obtain and to maintain proprietary rights in the Confidential
Information specified in Section 3.6 above and the materials specified in
Section 3.6 above, in any and all countries and to vest title thereto in the
Corporation.
3.8 OTHER REMEDIES. In the event that the Executive breaches any of the
terms contained in this Section 3, the Executive stipulates that said breach
will result in immediate and irreparable harm to the business and goodwill of
the Corporation and that damages, if any, and remedies at law for such breach
would be inadequate. In addition to any and all such remedies available to the
Corporation, the Corporation shall therefore be entitled to apply for and
receive from any court of competent jurisdiction an injunction to restrain any
violation of this Agreement and for such further relief as the court may deem
just and proper.
3.9 CONTINUING OBLIGATIONS. The obligations, duties and liabilities of the
Executive pursuant to Section 3 of this Agreement are continuing, absolute and
unconditional and shall remain in full force and effect as provided therein
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despite any termination of this Agreement for any reason whatsoever, including,
but not limited to, the expiration of the Term.
4. TERMINATION
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4.1 TERMINATION FOR CAUSE; DEATH OR DISABILITY OF EXECUTIVE. In the event
of a material breach by the Executive under this Agreement, or upon her death or
permanent disability such that the Executive cannot perform the Services
hereunder, this Agreement may be terminated by the Corporation without notice or
penalty. Notwithstanding the foregoing, any Salary earned by the Executive
prior to such termination, death or disability shall remain payable by the
Corporation to the Executive or her estate. For purposes of this Agreement,
permanent disability means the Executive has been unable, for three consecutive
months, to perform the Executive's duties under this Agreement, as a result of
physical or mental illness or injury.
4.2 TERMINATION BY EXECUTIVE. This Agreement may be terminated at any time
by Executive upon three (3) months prior written notice to Corporation.
4.3 TERMINATION BY CORPORATION WITHOUT CAUSE. This Agreement may be
terminated at any time by Corporation without cause, for any reason whatsoever,
upon payment to Executive of an amount equivalent to her base salary, payable
bi-monthly for a period of twelve (12) months.
4.4 TERMINATION FOLLOWING A CHANGE IN CONTROL. In the event this Agreement
is terminated by the Corporation pursuant to a change in control of Vitalstate
Inc., the Corporation shall pay Executive an amount equivalent to 2 years
salary, payable monthly. For purposes of this Agreement, a change in control
shall be deemed to have occurred when any person and all other persons who
constitute a group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act or 1934) have acquired direct or indirect beneficial ownership of
50% or more of Vitalstate Inc.'s outstanding securities. If any circumstance
where Sections 4.3 and 4.4 of this Agreement can both be deemed to be
applicable, only this Section 4.4 shall apply.
5. MISCELLANEOUS
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5.1 ASSIGNMENT. Except as provided in this Section 5.1, the Executive and
the Corporation acknowledge and agree that the covenants, terms and provisions
contained in this Agreement and the rights of the parties hereunder cannot be
transferred, sold, assigned, pledged, or hypothecated; provided, however that
this Agreement shall be binding upon and shall enure to the benefit of the
Corporation and any successor to or assignee of all or substantially all of the
business and property of the Corporation. In addition, the Corporation may
assign its rights hereunder to a direct or indirect subsidiary, affiliated
company, or division of the Corporation without the consent of the Executive.
5.2 CAPACITY. The Executive hereby represents and warrants that, in
entering into this Agreement, she is not in violation of any contract or
agreement, whether written or oral, with any other person, moral or physical,
firm, partnership, corporation or any other entity to which she is a party or by
which she is bound and will not violate or interfere with the rights of any
other person, firm, partnership, corporation or other entity.
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5.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and shall not be modified except in writing by the parties hereto.
Furthermore, the parties hereto specifically agree that all prior agreements,
whether written or oral, relating to the Services to the Corporation shall be of
no further force or effect from and after the date hereof.
5.4 SEVERABILITY. If any phrase, clause or provision of this Agreement is
declared invalid or unenforceable by a court of competent jurisdiction, such
phrase, clause or provision shall be deemed severable from this Agreement, but
will not effect any other provisions of this Agreement, which otherwise shall
remain in full force and effect. If any restriction or limitation in this
Agreement is deemed to be unreasonable, onerous and unduly restrictive by a
court of competent jurisdiction, it shall not be stricken in its entirety and
held totally void and unenforceable, but shall remain effective to the maximum
extent permissible within reasonable bounds.
5.5 WAIVER. The waiver by the Corporation or the Executive of any breach of
any term or condition of this Agreement shall not be deemed to constitute the
waiver of any other breach of the same or any other term or condition hereof.
5.6 GOVERNING LAW. The parties hereto agree that this Agreement shall be
construed as to both validity and performance and shall be enforced in
accordance with and governed by the laws of Quebec applicable therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
VITALSTATE INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Secretary, Treasurer,
and Chief Financial Officer
VITALSTATE CANADA LTD.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Secretary, Treasurer,
and Chief Financial Officer
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
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