Exhibit 2.2
EXHIBIT C
FORM OF AGREEMENT REGARDING EMPLOYEES
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EXHIBIT C
AGREEMENT REGARDING EMPLOYEES
AGREEMENT REGARDING EMPLOYEES, dated as of ____________, 1999 (the
"AGREEMENT"), by and between Xxxxxx, Inc., a Colorado corporation (the
"COMPANY"), and Zuellig Botanicals, Inc., a Delaware corporation ("ZBI").
R E C I T A L S :
WHEREAS, certain employees of ZBI and its subsidiaries, as more
specifically listed on Schedule A hereto (the "EMPLOYEES"), may also be
employees of the Company or its subsidiaries; and
WHEREAS, the parties wish to set forth certain arrangements regarding
the Employees.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the Company and ZBI, agree as follows:
1. SERVICES BY THE EMPLOYEES TO ZBI
(a) Each Employee shall have the duties and responsibilities with
respect to services provided for ZBI as ZBI shall determine from time to time in
its sole discretion ("EMPLOYMENT DUTIES"). ZBI will have sole control over such
activities. ZBI shall be responsible for the payment of compensation for each
Employee with respect to Employment Duties rendered on behalf of ZBI. ZBI may
terminate an Employee at any time.
(b) The Employees shall in all respects qualify as common-law
employees of ZBI while rendering Employment Duties for ZBI. ZBI shall use its
reasonable best efforts to ensure that no Employee holds himself out to the
public as an employee, representative or agent of the Company when he is engaged
in ZBI business. ZBI shall use its reasonable best efforts to ensure that
appropriate correspondence, letterhead and business cards are used for the
relevant business being conducted, and that Employees clearly indicate to third
parties that they are acting solely on behalf of ZBI when conducting ZBI
business. Any out-of-pocket expenses that are incurred by the Employees while
engaged in the conduct of ZBI's business shall not be the Company's
responsibility.
(c) ZBI and the Company will not object to the Employee
spending one-half of his or her normal working time in the active
employment of the other.
2. SERVICES BY EMPLOYEES TO THE COMPANY
(a) Each Employee shall have the duties and responsibilities with
respect to services provided for the Company as the Company shall determine from
time to time in its sole discretion ("EMPLOYMENT DUTIES"). The Company will
have sole control over such activities. The Company shall be responsible for
the payment of compensation for each Employee with respect to Employment Duties
rendered on behalf of the Company. The Company may terminate an Employee at any
time.
(b) The Employees shall in all respects qualify as common-law
employees of the Company while rendering Employment Duties for the Company. The
Company shall use its reasonable best efforts to ensure that no Employee holds
himself out to the public as an employee, representative or agent of ZBI when he
is engaged in the Company business. The Company shall use its reasonable best
efforts to ensure that appropriate correspondence, letterhead and business cards
are used for the relevant business being conducted, and that Employees clearly
indicate to third parties that they are acting solely on behalf of the Company
when conducting the Company business. Any out-of-pocket expenses that are
incurred by the Employees while engaged in the conduct of the Company's business
shall not be ZBI's responsibility.
3. BENEFITS
ZBI and the Company recognize that it is likely the Employees would
not work on a part time basis for either of them if the Employee could not
receive health, disability, life insurance, retirement and similar benefits.
Accordingly, the Employee will be provided appropriate benefits and the parties
recognize that the employer not providing the benefits will likely have to
compensate the Employee with relatively greater cash compensation in order to
secure the services of the Employee.
4. INDEMNIFICATION
Except as otherwise specifically provided for in this Agreement, the
Company agrees to indemnify ZBI against, and agrees to hold it harmless from,
any and all losses incurred or suffered as a result of: (i) any claim by any
third-party resulting from any actions of a Employee while such employee is
engaged in the conduct of the Company's business, and (ii) any claim by any
Employee resulting from any actions of the Company and its employees while such
employee is providing services in connection with the Company's business.
Except as otherwise specifically provided for in this Agreement, ZBI agrees to
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indemnify the Company against, and agrees to hold it harmless from, any
and all losses incurred or suffered as a result of: (i) any claim by
any third-party resulting from any actions of a Employee while such
employee is engaged in the conduct of ZBI's business, and (ii) any claim
by any Employee resulting from any actions of ZBI and its employees
while such employee is providing services in connection with ZBI's
business. In the event ZBI and the Company are held jointly liable in
respect of any claim by any third-party resulting from any actions of a
Employee, then the liability shall be apportioned between ZBI and the
Company based upon concepts used in applying principles of contribution
including relative fault, relative benefit, and ability to control the
actions of the Employee in the particular undertaking from which
liability arose.
5. TERMINATION
This Agreement shall terminate on the second anniversary of the date
hereof. Upon such termination, ZBI and its affiliates (except for the Company
and its subsidiaries if the Company is considered an affiliate of ZBI) will no
longer seek to employ the Employees.
6. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado applicable to contracts
made and to be performed entirely within such State.
(b) PARAGRAPH AND SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
(c) NOTICES. All communications under this Agreement shall be in
writing and shall be delivered by hand, by facsimile or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(1) If to ZBI, at 0000 Xx Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxx
00000-0000 (facsimile: (000) 000-0000), marked for attention of
President, or at such other address as ZBI may have furnished the
Company in writing (with a copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxxxx X. Xxxxxx,
Esq. (facsimile: 212-728-8111), or at such other address it may have
furnished the Company in writing), and
(2) If to the Company, at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx
00000 (facsimile: (000) 000-0000), marked for the attention of Xxxx
Xxxxx, or at such other address as the Company may have furnished ZBI
in
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writing (with a copy to Xxxxxxxx, Xxxxx & Xxxxxxx, P.C., 0000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxxx, Esq. (facsimile: 303-449-5426) or at such other address as
it may have furnished in writing).
Any notice so addressed shall be deemed to be given: if delivered by hand or by
facsimile, on the date of such delivery; if delivered by courier, on the first
business day following the date of the delivery to the courier; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(d) EXPENSES AND TAXES. Each party shall pay its own fees and
expenses incurred in connection with the transactions contemplated hereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(f) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement
constitutes the entire understandings of the parties hereto and supersede all
prior agreements or understandings with respect to the subject matter hereof
among such parties. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and ZBI. No course of dealing between the Company and ZBI nor
any delay in exercising any rights hereunder shall operate as a waiver of any
rights of either party hereto.
(g) SEVERABILITY. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(h) SPECIFIC PERFORMANCE. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
(i) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
create any rights in favor of any person other than the parties hereto,
including without limitation, any Employee. Nothing contained herein is
intended to confer upon any Employee any right to continued employment by ZBI or
the Company or any of their respective subsidiaries and ZBI and the Company, or
their respective subsidiaries, shall have the right to dismiss any Employee,
with or without cause, at any time.
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(j) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement the
__ day of _____, 1999.
XXXXXX, INC.
By:
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Name:
Title:
ZUELLIG BOTANICALS, INC.
By:
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Name:
Title:
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