Exhibit 10.10(a)
EMPLOYMENT AGREEMENT
This is an Employment Agreement dated as of February 16, 1996, among Dr.
Qun Xx Xxxxx, an individual residing at 0000 X. Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
(the "Employee"); Madis Botanicals, Inc., a Delaware corporation with principal
offices at 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Company"); and Pure World, Inc., a Delaware corporation with principal offices
at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Pure World").
RECITALS
Pure World and the Company desire that the Company employ the Employee and
the Employee desires to be employed by the Company, on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Employment. The Company offers, and the Employee accepts, employment
upon the terms and conditions stated in this Agreement, which terms and
conditions shall supersede any other prior oral or written employment agreements
between the Company (and any predecessors) and the Employee. The Employee shall
assume such responsibilities and perform such duties as the Company shall from
time to time assign to the Employee. The Employee's initial title shall be
Director of Research. The Employee shall perform his duties to the best of his
ability, experience and talents, all to the reasonable satisfaction of the
Company, and shall use his best efforts to promote the interests of the Company.
During the Term (as defined in Section 2) of this Agreement, the Employee shall
not engage in any capacity or activity which is contrary to the welfare,
interest or benefit of the business conducted by the Company. The Employee shall
devote all of his business time, ability and attention to the business of the
Company, unless otherwise authorized in writing by the Board of Directors of the
Company. The Employee shall engage in such travel on behalf of the Company as
may reasonably be required in connection with the performance of his duties
hereunder.
2. Term of this Agreement. The initial term of this Agreement (the "Initial
Term") shall extend from February 16, 1996 until February 16, 1997 and
thereafter shall automatically continue after the initial Term until and unless
terminated by either party on three month's notice. The commencement date of the
Initial Term may be delayed by Employee by three weeks to satisfy any notice
obligations to his current employer.
3. Compensation.
3.1 Amount. In connection with his employment, the Employee shall be paid
an annual gross salary of ninety thousand dollars ($90,000) during the Initial
Term and thereafter as mutually agreed upon by the Company and the Employee. In
addition, Employee will be entitled to the regular bonuses paid to all the
Company's employees and special bonuses granted to him in the discretion of the
Board of Directors for his efforts on behalf of the Company.
3.2 Moving Expense. Employee will use his best efforts to sell his home in
Colorado ("Colorado Home"). Until Employee closes the sale of his Colorado Home,
the Company will secure and pay for reasonable living quarters for Employee in
New Jersey. The Company will arrange for and pay for the delivery of Employee's
car from Colorado to New Jersey. Until Employee's family moves to New Jersey
(which shall not be later than two weeks after the end of the school year for
Employee's oldest child), the Company will pay for Employee to fly to Colorado
once every three weeks after the commencement of his employment and once to
arrange for the movement of his family to New Jersey.
Employee will reimburse Employee for the amount by which, if any, the net
sales price of his Colorado Home is less than his original purchase price after
adding the costs of closing including any commissions.
3.3 Benefits Plans. The Company shall provide the Employee with such
medical and disability insurance, hospital insurance and group life insurance
and other benefits made available to executive level employees of the Company,
subject to the terms and conditions of such benefit plans and arrangements.
3.4 Vacations. The Employee shall be entitled each year to a vacation of
fifteen (15) working days, during which time his compensation shall be paid in
full and such holidays and other non-working days as are consistent with the
policies of the Company for executives generally. All vacations shall be
scheduled so as to cause minimal interference with the operations of the
Company. If the Employee's employment under this Agreement is terminated by the
Company pursuant to Section 5.2, the Employee shall be entitled to payment for
all unused vacation days.
3.5 Reimbursement of Expenses. Any reasonable expenses incurred by Employee
in promoting the business of the Company will be promptly paid directly or
promptly reimbursed to Employee upon receipt of receipts or other documentation
evidencing the date, amount and business reason for the expenditure.
4. Employee's Equity in Pure World.
4.1 Purchase of the Pure World Stock. Pure World shall loan to Employee
(the "Loan") up to sixty five thousand dollars ($65,000) to acquire twenty five
thousand (25,000) shares of the common stock of Pure World ( the "Pure World
Stock").
4.2 Pure World Security Interest in Pure World Stock. As soon as
practicable after acquiring the Pure World Stock, Employee shall deliver to Pure
World stock certificates representing the Pure World Stock, duly endorsed in
blank or with stock powers attached, duly endorsed in blank. Pure World shall
hold the Pure World Stock as security for the repayment of the Loan and any
accrued interest.
4.3 Interest at Imputed Rate. The Loan shall accrue interest at the lowest
rate necessary to avoid the imputation of interest under Section 483 of the
Internal Revenue Code of 1986, as amended (the "Loan Interest").
4.4 Repayment of Loan. The Loan and the Loan Interest shall be paid solely
from the proceeds of any sale by Employee of the Pure World Stock (the "Sales
Proceeds") as and when Sales Proceeds are received by Employee or by Pure World
for the benefit of Employee until the Loan and the Loan Interest are paid in
full. In no event will Employee be otherwise liable for the Loan or Loan
Interest. Employee agrees to assign to Pure World the right to receive Sales
Proceeds and agrees to remit to Pure World any Sales Proceeds he receives until
the Loan and Loan Interest are fully repaid.
4.5 Prerequisite to Sale or Transfer. Except in the case of a termination
by the Company pursuant to Section 5.2, Employee may not sell, assign, transfer,
hypothecate or otherwise encumber the Pure World Stock unless and until he has
been continuously employed by the Company from the Commencement Date through
March 1, 1998.
4.6 Termination Prior to March 1, 1998. If this Agreement is terminated
prior to March 1, 1998 for any reason other than by the Company pursuant to
Section 5.2, Pure World will cancel the Loan and all Employee's right, title and
interest in the Pure World Stock will be transferred to Pure World without any
further action by Employee. If the Company terminates this Agreement pursuant to
Section 5.2, Employee shall have one year from the date of termination to sell
the Pure World Stock and repay the Loan and the Loan Interest as provided
herein.
4.7 Delivery of Pure World Stock to Employee. At any time the Loan and Loan
Interest are fully paid as provided herein, Pure World shall immediately deliver
to the Employee the Pure World Stock and the remainder of any remaining Sales
Proceeds held by Pure World.
4.8 Cancellation of Loan for Non-Payment. If the Loan and Loan Interest are
not repaid by March 1, 1998, Pure World shall have the right to cancel the Loan
at any time thereafter and in that event all Employee's right, title and
interest in the Pure World Stock will be transferred to Pure World without any
further action by Employee.
5. Termination.
5.1 Termination For Cause. The Company may terminate this Agreement with
the Employee for "cause". Upon termination of the Employee for cause, all rights
and obligations of the parties under this Agreement shall terminate, except
those rights and obligations under Sections 6, 7 and 8. For purposes of this
Agreement, "cause" shall mean only the following acts, omissions or occurrences
by or with respect to the Employee:
(i) substantial and continuous non-performance of assigned duties;
(ii) failure to comply with a material written policy of the Company;
(iii)failure to devote sufficient time to the Company's business as
reasonably expected for executives of comparable position and
compensation;
(iv) an act of dishonesty; or
(v) conviction of a felony (other than a felony arising out of
non-repetitive traffic violations), or other criminal act or fraud.
5.2 Termination Without Cause. The Company may terminate Employee's
employment without cause, by giving not less than ninety days written notice. If
the Company terminates Employee's employment without cause, then notwithstanding
anything contained herein to the contrary, or otherwise provided by law,
Employee shall be entitled to receive all compensation described in Section 3.1
for the period equal to the period remaining between the date of his termination
of employment and the last day of the Term of this Agreement in accordance with
his regular payment schedule.
5.3 Death or Disability. In the event of Employee's death or permanent
disability, this Agreement shall terminate and Employee, or his personal
representative, as the case may be, shall be paid three months salary or the
balance of salary due from the date of Termination until the last day of the
Term of this Agreement, whichever is less. For purposes of this subsection,
permanent disability shall mean the failure to perform the prescribed duties
assigned to Employee by virtue of a health condition for a continuous period of
three months.
6. Covenant Not to Compete.
6.1 Covenant. Subject to Section 6.2, during the Term and for two (2) years
thereafter, the Employee agrees not to do any of the following:
(i) Engage, directly or indirectly, in a business similar to the business
currently being conducted by the Company, including but not limited
to, the manufacture and sale of botanical extracts, flavors, and
fragrances within sixty (60) miles of the Company's current facilities
or the facilities of any subsidiary or affiliate.
(ii) Engage, directly or indirectly, in any way in the solicitation of
employees or independent contractors of the Company or its 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.
6.2 Engagement in Business. For purposes of this Section 6, the Employee
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, the Employee 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 the Employee shall not be in a control position
with regard to such corporation.
7. Confidential Information.
7.1 No Disclosure; Definition of Confidential Information. The Employee
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 the Employee 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 the
Employee's obligations hereunder; and (ii) any information which the Employee
acquires through or from parties independent of the Company, but only to the
extent the Employee can verify the independence of his information or knowledge
to the reasonable satisfaction of the Company; (iii) any information required to
be disclosed by law or regulation; and (iv) any information disclosed for the
purpose of completing and filing any tax returns of Employee.
7.2 Information Held in Trust. The Employee shall hold in trust and
confidence for the benefit of the Company all Confidential Information of the
Company, and the Employee shall not disclose such Confidential Information for
any purpose other than on behalf of the Company in accordance with his duties
under this Agreement. The Employee 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
the Employee, the Company does not grant any express, implied or other license
or right of any nature to the Employee with respect to the Confidential
Information.
7.3 Duties Upon Termination. Upon expiration of the Term or termination of
the Employer's services for the Company irrespective of the time, manner or
cause of such Termination, the Employee shall surrender to the Company 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 Employee. The Company does not wish to receive any
confidential information from the Employee. Any and all information disclosed by
the Employee to the Company shall not be deemed confidential, and the Company
shall be under no obligation to retain any such information in confidence.
8. Employee's Representations and Warranties. The Employee hereby
represents and warrants to the Company that the execution and delivery by him of
this Agreement, and the performance by him of his duties and responsibilities on
behalf of the Company as set forth in this Agreement, will not constitute a
breach, violation or default by him under any employment agreement,
confidentiality agreement, non-competition agreement, or any other agreement or
any judgment or other instrument to which he is a party or by which he is
otherwise bound or subject.
9. Equitable Relief and Limits of Liability. The parties recognize that
irreparable harm will result to either party if the other party fails or refuses
to perform the obligations under this Agreement and that the remedy at law for
such failure or refusal will be inadequate. Accordingly, in addition to any
other remedies and damages available, the Company and the Employee shall be
entitled to injunctive relief, and other appropriate equitable relief. Nothing
herein shall be construed as prohibiting the Company or the Employee from
pursuing any other remedies in addition to equitable relief, including the
recovery of damages; provided, however, that the Company's damages for breach of
this Agreement shall be limited, in all respects, to a maximum amount equal to
the remaining amount to be paid to Employee hereunder following the date of
breach. Notwithstanding anything to the contrary set forth herein, in no event
shall the Company be entitled to consequential or punitive damages as a result
of such breach.
10. Invalidity and Severability. If any provisions of this Agreement are
held invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions of this Agreement, and, to the extent, the
provisions of this Agreement are intended to be and shall be deemed severable.
In particular and without limiting the foregoing sentence, in the event that any
provision of Section 6 of this Agreement shall be held to be invalid or
unenforceable by reason of the geographic or business scope or the duration
thereof, such invalidity or unenforceability shall attach only to such provision
and shall not affect or render invalid or unenforceable any other provision of
this Agreement. This Agreement and such provisions of Section 6 shall be
construed as if the geographic or business scope or the duration of such
provision had been more narrowly drawn so as not to be invalid or unenforceable.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if delivered by hand, sent via
facsimile, or sent by registered or certified mail, return receipt requested, as
follows:
As to the Employee: Dr. Qun Xx Xxxxx
0000 X. Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
As to the Company: Madis Botanicals, Inc.
000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Att: Xxxx Xxxxxxxxx
As to Pure World: Pure World, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Att: Xxxxxxx X. Xxxxxxx
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Rosenman & Colin
00 Xxxxxxxxx Xxxx, X.X. Xxx 00
Xxx Xxxxx, Xxx Xxxxxx 00000
or to such other address as either party hereto may designate to the other by
written notice given in accordance with this Agreement. Notices shall be deemed
sent on the date personally delivered and receipt or written acknowledgment is
received if sent via facsimile.
12. Assignment. This Agreement and the rights and obligations of the
parties hereto shall be binding upon and inure to the benefit of the Company and
its successors and assigns. The parties acknowledge that the services to be
provided by the Employee hereunder are unique to the Employee. Accordingly, the
Employee may not assign any obligation hereunder without the prior written
consent of the Company, which may be withheld in the Company's sole discretion.
13. Waiver of Breach. Waiver by either party of a breach of any provision
of this Agreement by the other shall not operate or be construed as a waiver of
any subsequent breach by such other party. The failure of any party hereto to
take any action by reason of a breach shall not deprive that party of the right
to take action at any time while such breach continues.
14. Benefit of Affiliates. Any protection, benefits, rights or other
provisions given to the Company in this Agreement shall also be deemed to apply
to, protect and inure to the benefit of the Company's subsidiaries and
affiliates.
15. Entire Agreement. This Agreement contains the entire agreement of the
parties as to the subject matter hereof and supersedes any and all other
agreements of the parties as to the subject matter hereof. This Agreement and
its terms may not be waived, changed, modified, extended or discharged orally,
except by an agreement in writing signed by the party against whom enforcement
of such waiver, change, modification, extension or discharge is sought.
16. Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of New Jersey.
17. Construction. The section and subsection headings used herein are for
convenience of reference only, are not a part of this Agreement and are not to
affect the construction of, or be taken into consideration in interpreting, any
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
MADIS BOTANICALS, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
PURE WORLD, INC.
By:/s/ Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx
EMPLOYEE
By: /s/ Dr. Qun Xx Xxxxx
--------------------
Dr. Qun Xx Xxxxx
