EXHIBIT 16.4
EXECUTIVE EMPLOYMENT AGREEMENT - XXXXXX XXXXXXXXX
This Agreement is made and entered into as of March 31, 2004 by and
between INTERACTIVE NUTRITION INTERNATIONAL INC. ("INII"), a Canadian
corporation with its principal office located at 0000 Xxxxxxx Xxxxxx, 000 X,
Xxxxxx, XX Xxxxxx X0X0X0, BIO-ONE CORPORATION ("BIO-ONE"), a Nevada corporation
with its principal office located at 0000 Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx 00000, and XXXXXX XXXXXXXXX, ("EXECUTIVE").
RECITALS
WHEREAS, INII and Bio-One are engaged in the business of distributing
nutritional supplements; and
WHEREAS, INII and Bio-One desire that INII employ the Executive in an
executive capacity and the Executive desires to accept such employment, all upon
the terms and subject to the conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained and the monies to be paid hereunder, the parties
agree to the following terms and conditions:
Recitals. The above recitals are true and correct and are incorporated
herein by reference.
1.0 EMPLOYMENT.
1.1 Employment. INII shall employ the Executive as Vice-President
and Secretary, and the Executive accepts such employment, on the terms and
subject to the conditions set forth in this Agreement, for an initial two (2)
year term commencing on the date hereof (the "Effective Date") and expiring on
the last day of the twenty-fourth (24th) calendar month following the Effective
Date (the "Initial Term"). The term of this Agreement shall automatically be
extended for consecutive one (1) year terms (each such term being referred to as
a "Renewal Term"), unless either Party wishing not to renew this Agreement
provides the other Party with written notice of its election not to renew
("Termination Election Notice") on or before the 30th day prior to termination
of the Term or Renewal Term, as the case may be. For purposes of this Agreement,
the word "Term" means the Initial Term and all Renewal Terms. All provisions of
this Agreement shall remain in effect during the Initial Term and all Renewal
Terms.
1.2 Duties of Executive. During the Term, the Executive shall
serve as an executive of INII and shall diligently perform all executive and
supervisory services as may be assigned to him by INII's and Bio-One's Board of
Directors ("Board") and shall exercise such power and authority as may from time
to time be delegated to him by the Board. The Executive shall devote his full
time and attention to the business and affairs of INII and render such services
to the best of his ability, and use his best efforts to promote the interests of
INII.
2.0 COMPENSATION.
2.1 Base Salary. The Executive shall receive an initial base
salary at the annual rate of One Hundred and Fifty Thousand Canadian dollars
($150,000) (the "Base Salary"), with such Base Salary payable in installments
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
consistent with INII's normal payroll schedule (but not less than twice
monthly), subject to the employee's portion of applicable withholding and other
taxes. On an annual basis, the Board shall, in its sole discretion, consider
increasing the Executive's Base Salary.
2.2 Bonus. [Intentionally deleted]
2.3 Performance Bonus. INII shall pay to the Executive a
Performance Bonus as determined by the Board, in its sole discretion.
Notwithstanding the prior sentence, the first twenty-four (24) months
Performance Bonus formula shall be as follows:
i) Profit Sharing. The Executive shall participate in a
"profit pool" equal to ten percent (10%) of INII's earnings during the
first twenty-four months of this Agreement, as determined by INII's
external accountants. This "Profit pool" shall be allocated twenty-five
percent (25%) to the Executive, twenty-five percent (25%) to Xxxxxx
Xxxxxxxxx, twenty-five percent (25%) to Xxx Xxxxxxxxx and twenty-five
percent (25%) to all other entitled Employees of INII, on a rewards
basis as determined by the Board, in its sole discretion.
ii) Stock Grants. After the first twelve (12) months of
employment, the Executive shall be eligible to participate in Bio-One's
Stock Grants Plan ("Bio-One Plan"). The Bio-One Plan is designed to
afford the Executive the opportunity to earn up to an additional 100%
of the Executive's base salary (adjusted to US dollars as determined by
Bio-One, acting reasonably) in Bio-One Stock Grants each year. The
Stock Grants begin upon achieving 100% of the budgeted revenues and
profit goals for INII each year. The formula begins with 10% of the
Executive's base salary being paid in Stock Grants if INI achieves 100%
of its budgeted revenues and profit goals for that year. An additional
10% of the Executive's base salary is paid in Stock Grants for each 10%
increase in revenues and profits above the budgeted goal for that year.
2.4 Reimbursement of Expenses. During the term of Executive's
employment hereunder, upon the submission of proper substantiation by the
Executive, and subject to such rules and guidelines as the Board or its delegate
may from time to time adopt, INII shall reimburse the Executive for all
reasonable expenses actually paid or incurred by the Executive in the course of
and pursuant to the business of INII. The Executive shall account to the Board
or its delegate in writing for all expenses for which reimbursement is sought
and shall supply to INII copies of all relevant invoices, receipts or other
evidence reasonably requested by INII.
2.5 Benefits. The Executive shall be entitled to any benefits
generally made available to all other executives of INII including without
limitation medical, disability and life insurance plans and programs established
by INII subject however to any eligibility requirements and other provisions of
such plans. The Executive shall also be entitled to receive such fringe benefits
as may be generally provided by INII from time to time to its employees, in
accordance with the policies of INII.
2.6 Withholding. Anything to the contrary notwithstanding, all
payments required to be made by INII hereunder to the Executive or the
Executive's estate or beneficiaries shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as INII may
reasonably determine it should withhold pursuant to any applicable law or
regulation.
2.7 Vehicle Allowance. INII shall provide the Executive with a
monthly vehicle allowance in the amount of Three Hundred and Fifty Dollars
($350).
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
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3.0 CURRENCY.
3.1 Currency. All references to dollar amounts in this Agreement
or any schedule hereto shall mean the lawful currency of Canada unless otherwise
specifically provided herein.
4.0 TERMINATION OF EMPLOYMENT.
4.1 Resignation by Executive. The Executive shall at all times
have the right, upon ninety (90) days written notice to INII and Bio-One, to
resign his employment hereunder ("Resignation Notice"). Upon any resignation
pursuant to this Section 4.1, INII shall pay to the Executive any unpaid Base
Salary through the effective date of the resignation specified in such notice.
After payment of such base salary, INII and Bio-One shall have no further
liability hereunder other than for reimbursement of reasonable business expenses
incurred prior to the effective date of resignation, subject, however, to the
provisions of Section 2.3. Notwithstanding this Section 4.1, INII and Bio-One,
upon receiving the Executive's Resignation Notice, may accelerate the
Executive's resignation date to any date greater than thirty (30) days after
receipt of the Resignation Notice.
4.2 Termination for Cause. INII and Bio-One shall at all times
have the right, upon written notice to the Executive, to terminate the
Executive's employment hereunder, for cause. For purposes of this Agreement, the
term "cause" shall mean (i) an action or omission of the Executive which
constitutes a willful and material breach of this Agreement which is not or
cannot be cured within ten (10) days after receipt by the Executive of written
notice of same; (ii) dishonesty, fraud, making derogatory statements concerning
INII or Bio-One or embezzlement in connection with his services hereunder; (iii)
misappropriation of any corporate opportunity or conviction of any crime which
involves a felony; (iv) misappropriation of funds for personal gain or in
violation of any law, judgment, decree, or order of any governmental authority,
or (v) addiction to drugs and/or alcohol determined by diagnosis of a licensed
physician who is a specialist in the area of addiction which cannot be cured or
otherwise remedied after a good faith attempt at rehabilitation. Any termination
for cause shall be made in writing to the Executive, which notice shall set
forth the reasons upon which INII and Bio-One are relying for such termination.
The Executive shall have the right to address the Board regarding the acts set
forth in the notice of termination. Upon any termination pursuant to this
Section 4.2, INII shall pay to the Executive his Base Salary to the date of
termination. INII and Bio-One shall have no further liability hereunder other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of Section 2.3.
4.3 Death. In the event of the death of the Executive during the
Term of his employment hereunder, INII shall pay to the estate of the deceased
Executive any unpaid Base Salary through the Executive's date of death. INII has
no further liability hereunder other than for reimbursement for reasonable
business expenses incurred prior to the date of the Executive's death.
4.4 Survival. The provisions of this Article 4 shall survive the
termination of this Agreement, as applicable.
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
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5.0 RESTRICTIVE COVENANTS.
5.1 The Executive hereby agrees that during the term of the
Executive's employment by INII and Bio-One, the Executive will not, directly or
indirectly, own, manage, operate, join, control or participate in the ownership,
management, operation or control, of or be connected with, in any manner, any
business established or managed during the term of the Executive's employment by
INII and Bio-One, which shall be in competition with any business engaged in by
INII and Bio-One as of the termination of the Executive's employment. The
Executive agrees that the remedy at law for any breach by the Executive of the
foregoing will be inadequate and that INII and Bio-One shall be entitled to
injunctive relief. If any provisions of this paragraph shall be held invalid,
the Executive agrees that such provisions shall be severed and the balance
thereof shall remain valid and enforceable. In the event that a court of
competent jurisdiction determines that the scope of business restricted or the
time or geographic limitations imposed are too broad to be capable of
enforcement, the Executive agrees that such court may ignore such provisions and
instead enforce the provisions as to such scope, time and geographical area as
the court deems proper.
5.2 Nondisclosure. The Executive shall not at any time divulge,
communicate, use to the detriment of INII and Bio-One or for the benefit of any
other person or persons, or misuse in any way, any Confidential Information (as
hereinafter defined) pertaining to the business of INII and Bio-One. Any
Confidential Information or data now or hereafter acquired by the Executive with
respect to the business of INII and Bio-One (which shall include, but not be
limited to, information concerning INII and Bio-One's financial condition,
prospects, technology, customers, suppliers, sources of leads and methods of
doing business) shall be deemed a valuable, special and unique asset of INII and
Bio-One that is received by the Executive in confidence and as a fiduciary, and
Executive shall remain a fiduciary to INII and Bio-One with respect to all such
information.
For purposes of this Agreement, "Confidential Information" means information
disclosed to the Executive or known by the Executive as a result of or through
his employment by INII and Bio-One (including information conceived, originated,
discovered or developed by the Executive) prior to or after the date hereof, and
not generally known, about INII and Bio-One or its business. Notwithstanding the
foregoing, nothing herein shall be deemed to restrict the Executive from
disclosing Confidential Information to the extent required by law.
5.3 Covenant not to Disparage. The Executive hereby irrevocably
covenants and agrees that during the term of this Agreement and after its
termination, he will refrain from making any remarks that could be construed by
anyone, under any circumstances, as disparaging, directly or indirectly,
specifically, through innuendo or by inference, whether or not true, about INII
and Bio-One, its constituent members, or their officers, directors,
stockholders, employees, agent or affiliates.
5.4 INII's Property. All tangible, confidential information,
books, records, and accounts relating in any manner to the customers or clients
of INII and Bio-One and any other documentation, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of INII and Bio-One and shall be returned immediately to INII
and Bio-One on termination of the Executive's employment hereunder or on INII
and Bio-One's request at any time. Thereafter, Executive shall not reduce to
writing or otherwise record any of the proprietary or confidential information
disclosed to him during Executive's employment.
5.5 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Section 5 is invalid or
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
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more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Section 5 within the jurisdiction of such
court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under such governing law.
5.6 Survival. The provisions of this Section 5 shall survive the
termination of this Agreement, as applicable.
6.0 ARBITRATION.
If a dispute arises from or relates to this Agreement or the breach
thereof or otherwise from the relationship of the parties or its termination and
if the dispute cannot be settled through direct discussions, the parties agree
to endeavor first to settle the dispute in an amicable manner by mediation
administered by the Canadian Arbitration Association under its Commercial
Mediation Rules before resorting to arbitration. Thereafter, any unresolved
controversy or claim arising from or relating to this Agreement or breach
thereof shall be settled by arbitration administered by the Canadian Arbitration
Association in accordance with its Commercial Arbitration Rules and judgment on
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
7.0 MISCELLANEOUS.
7.1 Entire Agreement. This Agreement constitutes the entire
agreement between INII, Bio-One and the Executive with respect to the subject
matter hereof and, upon its effectiveness, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between the Executive
and INII and Bio-One with respect to such subject matter. This Agreement may not
be modified in any way unless by written instrument signed by INII, Bio-One
Corporation and the Executive.
7.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario, Canada. The
venue of any dispute arising under this Agreement shall be Xxxxxx, Xxxxxxx,
Xxxxxx.
7.3 Assignment. This Agreement is assignable by INII and Bio-One
with the written consent of the Executive; such consent shall not be
unreasonably withheld. However, the Agreement is not assignable by the
Executive.
7.4 Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier, sent
by registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or seven (7) days after deposit in the U.S. or
Canada mail.
7.5 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, including, without limitation, any successor to INII and
Bio-One, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
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7.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area that would cure such invalidity.
7.7 Waivers. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
7.8 Damages. Nothing contained herein shall be construed to
prevent INII and Bio-One or the Executive from seeking and recovering from the
other damages sustained by either or both of them as a result of its or his
breach of any term or provision of this Agreement.
In the event that either party hereto brings suit for the collection of any
damages resulting from, or the injunction of any action constituting, a breach
of any of the terms or provisions of this Agreement, then the party found to be
at fault shall pay all reasonable court costs and attorneys' fees of the other.
7.9 Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.10 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 INII and Bio-One, the parties hereto and their respective
heirs, personal representatives, legal representatives, successors and assigns,
any rights or remedies under or by reason of this Agreement.
7.11 Execution in Counterparts. This Agreement may be executed in
several counterparts, by original or facsimile signature, each of which so
executed shall be deemed to be an original and such counterparts together shall
be deemed to be one and the same instrument, which shall be deemed to be
executed as of the date first above written.
7.12 Further Assurances. The parties hereto shall sign such further
documents and do and perform and cause to be done and performed such further and
other acts and things as may be necessary or desirable in order to give full
effect to this Agreement and every party thereof.
7.13 Construction. This Agreement shall be construed within the
fair meaning of each of its terms and not against the party drafting the
document.
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
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IN WITNESS WHEREOF, the undersigned have hereunto executed the Agreement on the
date set forth above.
"EXECUTIVE" "INII"
XXXXXX XXXXXXXXX INTERACTIVE NUTRITION INTERNATIONAL INC.:
Signature: _________________________ Signature: ___________________________
By: Xxx Xxxxxxxxx, President & CEO
BIO-ONE CORPORATION:
Signature: ___________________________
By: Xxxxxx Xxxxxxxxx, President & CEO
Please Initial: INII:_____, Bio-One Corporation:_____, The Executive:_____
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