EXHIBIT 10.20
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of November 1, 2004, by and between Lexxus
International (Japan), Ltd, a newly formed Japan corporation ("Lexxus"), Natural
Health Trends Corp., a Florida corporation (the "Company"), and Xxxxxxx X.
Xxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, Lexxus is a wholly owned subsidiary of the Company; and
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties mutually agree as
follows:
SECTION 1. EMPLOYMENT. The Company agrees to employ Executive and the
Executive hereby accepts such employment, as the Company's President - Lexxus
Japan, subject to the terms and conditions set forth in this Agreement.
SECTION 2. DUTIES; EXCLUSIVE SERVICES; BEST EFFORTS. The Executive shall
perform all duties incident to the position of President - Japan and as Lexxus'
Representative Director as well as any other duties as may from time to time be
assigned by the Board of Directors of the Company, and agrees to abide by all
By-laws, policies, practices, procedures or rules of the Company. The Executive
agrees to devote his best efforts, energies and skill to the discharge of the
duties and responsibilities attributable to his position, and to this end, he
will devote his full time and attention exclusively to the business and affairs
of the Company and Lexxus. The Executive also agrees that he shall not take
personal advantage of any business opportunities which arise during his
employment and which may benefit the Company, Lexxus or any affiliate thereof.
All material facts regarding such opportunities must be promptly reported to the
Board of Directors of the Company for their consideration. Notwithstanding the
foregoing, the Executive may donate his time and efforts to charitable
causes so long as such endeavors do not effect his ability to perform his duties
under this Agreement. If requested by the Company or Lexxus, the Executive shall
serve on the Board of Directors or any committee thereof without additional
compensation.
SECTION 3. TERM OF EMPLOYMENT; VACATION.
(a) Unless extended in writing by both the Company and the
Executive, the term of this Agreement shall commence as of November 1, 2004 (the
"Commencement Date") and terminate on December 31, 2006, subject to earlier
termination by the parties pursuant to Sections 5 and 6 hereof (the "Term").
(b) The Executive shall be entitled to eight (8) weeks paid vacation
during each year of the Term. In addition, the Company shall advance to the
Executive an amount equal to two roundtrip business class airfare tickets (to be
used by the Executive and his wife for vacation travel for no more than two
trips to the United States) during each year of the Term. Such advance shall be
paid directly to a U.S. bank account as designated by Executive. Further, in the
event of a medical or family emergency, the Company shall reimburse the
Executive for business class airfare travel for the Executive and his wife on
one occasion during the Term.
SECTION 4. COMPENSATION OF EXECUTIVE.
4.1 SALARY. The Company shall pay to Executive a base salary of four
hundred eighty thousand ($480,000) dollars for the twelve-month period
commencing on the date hereof (the "Base Salary"), less such deductions as shall
be required to be withheld by applicable law and regulations. The Base Salary
payable to Executive shall be paid at such regular weekly, biweekly or
semi-monthly time or times as the Company makes payment of its regular payroll
in the regular course of business.
4.2 [INTENTIONALLY LEFT BLANK]
4.3 EXPENSES.
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(a) During the Term, the Company shall reimburse the Executive for all
reasonable and necessary expenses incurred by him in connection with his usage
of an automobile (including registration, lease payments, maintenance, fuel, and
drivers).
(b) The Company shall reimburse the Executive for all expenses incurred by
the Executive in connection with his relocation to Japan, including (i) legal
costs associated with applying for and obtaining legal residency in Japan, (ii)
moving expenses related to shipping Executive's personal items from one location
in the United States to Japan, (iii) all costs and expenses related to renting,
during the Term, a furnished two bedroom apartment that is reasonably acceptable
to Executive and the Company and (iv) reasonable meals and other customary
living expenses. Upon the termination of this Agreement, the Company shall
reimburse the Executive for all expenses incurred by the Executive in connection
with his relocation to the United States.
(c) The Company shall reimburse Executive for all reasonable membership
fees, dues and other expenses incurred by Executive related to his membership at
the Tokyo American Club.
4.4 BENEFITS. This paragraph shall be in a side letter between the
parties hereto.
SECTION 5. DISABILITY OF THE EXECUTIVE. If the Executive is incapacitated
or disabled by accident, sickness or otherwise so as to render the Executive
mentally or physically incapable of performing the services required to be
performed under this Agreement for a period of 90 consecutive days or 120 days
in any period of 360 consecutive days (a "Disability"), the Company may, at the
time or during the period of such Disability, at its option, terminate the
employment of the Executive under this Agreement immediately upon giving the
Executive written notice to that effect.
SECTION 6. TERMINATION.
6.1 WITH CAUSE. The Company may terminate the employment of the
Executive and all of the Company's obligations under this Agreement at any time
for Cause
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(as hereinafter defined) by giving the Executive notice of such termination,
with reasonable specificity of the details thereof. "Cause" shall include,
without limitation, the following:
(i) failure or neglect, by the Executive to perform the duties of
the Executive's position which failure or neglect has a material adverse effect
on the business, condition or prospects of the Company;
(ii) misappropriation of funds or property of the Company, securing
or attempting to secure personally any profit in connection with any transaction
entered into on behalf of the Company, material misrepresentation to the
Company, or any material violation of law or regulations on Company premises or
to which the Company is subject;
(iii) commission by the Executive of an act involving moral
turpitude, dishonesty, theft or unethical business conduct, or conduct which
materially impairs or injures the reputation of, or materially xxxxx, the
Company;
(iv) failure to fully cooperate in any investigation by the Company;
(v) any material breach of this Agreement; or
(vi) the Executive's death or resignation hereunder; provided
however, that if the Executive resigned for Good Reason (as hereinafter
defined), such resignation shall not be considered "Cause" hereunder. A
termination pursuant to this Section 6.1 shall take effect 5 days after the
giving of written notice to the Executive unless the Executive shall, during
such 5-day period, remedy to the reasonable satisfaction of the Board of
Directors of the Company the misconduct, disregard, abuse or breach specified in
such notice; provided, however, that such termination shall take effect
immediately upon the giving of such notice if the Board of Directors of the
Company shall, in its reasonable discretion, have determined that such
misconduct, disregard, abuse or breach is not remediable (which determination
shall be stated in such notice).
6.2 WITHOUT CAUSE. The Company may terminate the employment of the
Executive and all of the Company's obligations under this Agreement (except as
hereinafter
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provided) at any time during the Term without Cause by giving the Executive
written notice of such termination, to be effective 5 days following the giving
of such written notice.
6.3 WITH GOOD REASON. The Executive, may terminate his employment
hereunder (and the Term) for Good Reason after the occurrence of such event
constituting a material breach of this Agreement by the Company that has not
been fully cured within ten (10) days after written notice thereof has been
given by the Executive to the Company. "Good Reason" shall mean the occurrence
of any of the following without the written consent of the Executive of his
approval: (i) the assignment to Executive of duties inconsistent with the
Agreement or a change in his title or authority; (ii) any change in reporting
responsibility so that Executive reports to any person other than the Board of
Directors; (iii) the requirement of the Executive to relocate to a location
outside of Japan; or (iv) any material breach of the Agreement by the Company.
For convenience of reference, the date upon which any termination of the
employment of the Executive pursuant to Sections 5 or 6 shall be effective shall
be hereinafter referred to as the "Termination Date".
6.4. UPON A CHANGE OF CONTROL. The Executive may terminate this
Agreement by delivering written notice to the Company within six (6) months
following the effective date of a Change of Control. As used herein, the term
"Change of Control" shall mean: (i) when any "person" as defined in Section
3(a)(9) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), and as used in Section 13(d) and 14(d) thereof, including a "group" as
defined in Section 13(d) of the Exchange Act, but excluding the Company or any
subsidiary or any affiliate of the Company or any employee benefit plan
sponsored or maintained by the Company or any subsidiary of the Company
(including any trustee of such plan acting as trustee), becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of securities of the
Company representing more than 50% of the combined voting power of the Company's
then outstanding securities; or (ii) when, during any period of twenty-four (24)
consecutive months, the individuals who, at the
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beginning of such period, constitute the Board of Directors of the Company (the
"Incumbent Directors") cease for any reason other than death to constitute at
least a majority thereof, provided, however, that a director who was not a
director at the beginning of such 24-month period shall be deemed to have
satisfied such 24-month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or with the approval of, at
least two-thirds of the directors who then qualified as Incumbent Directors
either actually (because they were directors at the beginning of such 24-month
period) or through the operation of this proviso; or (iii) the occurrence of a
transaction requiring stockholder approval under applicable state law for the
acquisition of the Company by an entity other than the Company or a subsidiary
or an affiliated company of the Company through purchase of assets, or by
merger, or otherwise.
SECTION 7. EFFECT OF TERMINATION OF EMPLOYMENT.
7.1 WITH CAUSE. Upon the termination of the Executive's employment
for Cause, neither the Executive nor the Executive's beneficiaries or estate
shall have any further rights to compensation under this Agreement or any claims
against the Company arising out of this Agreement, except the right to receive
(i) the unpaid portion of the Base Salary provided for in Section 4.1, earned
through the Termination Date (the "Unpaid Salary Amount"), (ii) reimbursement
for any expenses for which the Executive shall not have theretofore been
reimbursed, as provided in Section 4.3 (the "Expense Reimbursement Amount") and
(iii) payment for accrued and unused vacation time (the "Vacation Amount").
7.2.FOR DISABILITY. Upon the termination of the Executive's
employment as a result of a Disability, neither the Executive nor the
Executive's beneficiaries or estate shall have any further rights to
compensation under this Agreement or any claims against the Company arising out
of this Agreement, except the right to receive (i) the Unpaid Salary Amount,
(ii) the Expense Reimbursement Amount and (iii) the Vacation Amount.
7.3 WITHOUT CAUSE OR FOR GOOD REASON. Upon the termination of the
Executive's employment by the Company without Cause (and not as a result of a
Disability)
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or by the Executive for Good Reason, neither the Executive nor the Executive's
beneficiaries or estate shall have any further rights to compensation under this
Agreement or any claims against the Company arising out of this Agreement,
except the Executive shall have the right to receive (i) the Unpaid Salary
Amount, (ii) the Expense Reimbursement Amount, and (iii) the Vacation Amount,
and (iv) severance compensation equal to the then Base Salary for six (6)
months. The Executive shall not be entitled to receive any severance payment
until and after (i) he has consulted with qualified independent legal counsel
regarding his employment and termination with the Company, (ii) he has executed
a full general release of all claims against the Company, its affiliates,
officers, directors, employees, agents and representatives, in form and
substance satisfactory to the Company, and delivered such general release to the
Company, and (iii) all applicable waiting periods, if any, with respect to the
irrevocable nature of the general release has have elapsed (the "General Release
Requirement").
7.4. CHANGE OF CONTROL. Upon the termination of this Agreement by
the Executive in connection with a Change of Control and in accordance with
Section 6.3, neither the Executive nor the Executive's beneficiaries or estate
shall have any further rights to compensation under this Agreement or any claims
against the Company arising out of this Agreement, except the Executive shall
have the right to receive (i) the Unpaid Salary Amount, (ii) the Expense
Reimbursement Amount, (iii) the Vacation Amount, and (iv) severance compensation
equal to the Base Salary for the remaining term of this Agreement (as if this
Agreement was not terminated). The Executive shall not be entitled to receive
any severance payment until and after he has complied with the General Release
Requirement. For the purpose of defining the Executive's right to stock options,
the Executive's termination of employment for a Change of Control shall be
equivalent to a termination for Good Reason. The Executive's right to his vested
options shall not expire until ninety (90) days after the Termination Date.
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SECTION 8. RESTRICTIVE COVENANTS.
8.1 CERTAIN DEFINITIONS. For purposes of this Section 8, the
following terms shall have the following meanings:
"COMPETITIVE ACTIVITY" means any activity conducted in the
Restricted Area which competes with any substantial aspect or part of Employer's
business whether as a proprietor, partner, shareholder, owner, member, employer,
employee, independent contractor, venturer or otherwise.
"COMPETITOR" means any Person, other than Employer or its
successor, which at any time during the Restriction Period engages in any
Competitive Activity.
"CONFIDENTIAL INFORMATION" means all information of or
relating to Employer, its business or practice, which is not generally known or
available to the public (whether or not in written or tangible form) including,
without limitation, customer lists, supplier lists, processes, know-how, trade
secrets, pricing policies and other confidential business information.
"CONFIDENTIAL MATERIALS" means any and all documents, records,
reports, lists, notes, plans, materials, customer lists, distributor lists,
programs, software, disks, recordings, manuals, correspondence, memoranda,
magnetic media or any other tangible media (including, without limitation,
copies or reproductions of any of the foregoing) in which any Confidential
Information may be contained.
"EMPLOYER" means the Company, Lexxus and direct and indirect
subsidiaries, whether now or in the future.
"PERSON" means an individual, proprietorship, partnership,
joint venture, corporation, limited liability company, association, trust,
estate, unincorporated organization, a government or any branch, subdivision,
department or agency thereof, or any other entity.
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"PERSONNEL" means any and all employees, contractors, agents,
consultants or other Persons rendering services to Employer for compensation in
any form, whether employed by or independent of Employer.
"RESTRICTED AREA" means Japan and their respective territories
with respect to any Competitive Activity involving the Internet, World Wide Web,
telemarketing or other electronic or similar media.
"RESTRICTION PERIOD" means the period of time, commencing on
the date hereof and expiring one (1) year after the termination of Executive's
employment with Employer pursuant to this Agreement, voluntarily or
involuntarily, for any reason whatsoever, subject to extension pursuant to
Section 8.6 below.
8.2 CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. Subject to Section 8.2(c):
(1) DUTY TO MAINTAIN CONFIDENTIALITY. Executive shall maintain in
strict confidence and duly safeguard to the best of his ability any and all
Confidential Information in his possession or under his control.
(2) COVENANT NOT TO DISCLOSE, USE OR EXPLOIT. Except as reasonably
necessary to perform his duties, Executive shall not, directly or indirectly,
disclose, divulge or otherwise communicate to anyone or use or otherwise exploit
for the benefit of anyone, other than Employer, any Confidential Information.
(3) CONFIDENTIAL MATERIALS. All Confidential Information and
Confidential Materials are and shall remain the exclusive property of Employer
and no Confidential Materials may be copied or otherwise reproduced, removed
from the premises of Employer or entrusted to any Person (other than Employer or
the Personnel entitled to such materials) by Executive, except as reasonably
necessary to perform his duties, without prior written permission from Employer.
(b) SURVIVAL OF COVENANTS. Notwithstanding anything herein to the
contrary, the covenants set forth in this Section 8.2 shall survive the
termination of this Agreement and
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any other agreement among any or all of the parties hereto (regardless of the
reason for such termination), unless terminated by a written instrument that
expressly terminates by specific reference the covenants set forth in this
Section 8.2.
(c) PERMITTED ACTIVITIES. If Executive receives a request or demand
for Confidential Information (whether pursuant to a discovery request, subpoena
or otherwise), Executive shall immediately give Employer written notice thereof
and shall exert his best efforts to resist disclosure, within the limits of the
law, including, without limitation, by fully cooperating and assisting Employer
in its efforts to resist or limit disclosure or to obtain a protective order or
other appropriate remedy to limit or prohibit further disclosure or use of such
Confidential Information. If Executive complies with the preceding sentence but
nonetheless becomes legally compelled to disclose Confidential Information,
Executive shall disclose only that portion of the Confidential Information that
he is legally compelled to disclose. Notwithstanding the forgoing, in no event
shall Executive be required to violate any applicable laws, rules or
regulations.
8.3 COVENANT NOT TO COMPETE. During the Restriction Period,
Executive shall not, directly or indirectly, whether as a sole practitioner,
owner, partner, shareholder, investor, employee, employer, venturer, independent
contractor, consultant or other participant, (i) own, manage, invest in or
acquire any economic stake or interest in any Person involved in a Competitive
Activity, (ii) derive economic benefit from or with respect to any Competitive
Activity or (iii) otherwise engage or participate in any manner whatsoever in
any Competitive Activity; provided, however, this Section 8.3 shall not restrict
Executive from (x) owning less than 2% of the publicly traded debt or equity
securities issued by a corporation or other entity or from having any other
passive investment that creates no conflict of loyalty or interest with any duty
owed to Employer or (y) working with or for Modi Enterprises in India and the
remainder of SAARC, Latino Directo in the United States and Latin America and/or
LR International Cosmetics and Marketing GmbH in China in a consulting capacity.
With regard to China, if the Company requires the assistance of
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Executive in China then Executive shall cease any consulting arrangements in
China in the most prudent manner possible. Executive shall be deemed to have
derived economic benefit in violation of this Section 8.3 if, among other
things, any of his compensation or income is in any way related to any
Competitive Activity conducted by any Person. Further, during the Restriction
Period Executive shall not directly or indirectly advance, cooperate in or help
or aid any Competitor in the conduct of any Competitive Activity.
8.4 COVENANT NOT TO INTERFERE. During the Restriction Period,
Executive shall not, directly or indirectly, recruit, solicit or otherwise
induce or influence any Personnel of Employer to discontinue, reduce the extent
of, discourage the development of or otherwise harm such Personnel's
relationship or commitment to Employer. Conduct prohibited under this Section
8.4 shall include, without limitation, seeking to employ or causing, aiding,
inducing or influencing a Competitor to employ or seek to employ any Personnel
of Employer.
8.5 EQUITABLE RELIEF. Each of the parties acknowledges that the
provisions and restrictions of this Section 8 are reasonable and necessary for
the protection of the legitimate interests of Employer. Each of the parties
further acknowledges that the provisions and restrictions of this Section 6 are
unique and that any breach or threatened breach of any of such provisions or
restrictions will provide Employer with no adequate remedy at law, and the
result will be irreparable harm to Employer. Therefore, the parties hereto agree
that upon a breach or threatened breach of the provisions or restrictions of
this Section 8; Employer shall be entitled, in addition to any other rights and
remedies which may be available to it, to institute and maintain proceedings at
law or in equity, to recover damages, to obtain an equitable accounting of all
earnings, profits or other benefits resulting from such breach or threatened
breach and to obtain specific performance or a temporary and permanent
injunction.
8.6 FULL RESTRICTION PERIOD. If Executive violates any restrictive
covenant contained herein and Employer institutes action for equitable relief,
Employer, as a result of
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the time involved in obtaining such relief, shall not be deprived of the benefit
of the full Restriction Period. Accordingly, the Restriction Period shall be
deemed to have the duration specified in Section 8.1, computed from and
commencing on the date on which relief is granted by a final order from which
there is no appeal, but reduced, if applicable, by the length of time between
the date the Restriction Period commenced and the date of the first violation of
any restrictive covenant by Executive.
8.7 EQUITABLE ACCOUNTING. Employer shall have the right to demand
and receive equitable accounting with respect to any consideration received by
Executive in connection with activities in breach of the restrictive covenants
herein, and Employer shall be entitled to payment from Executive of such
consideration on demand.
8.8 PRIOR BREACHES. Neither the expiration of the Restriction
Period nor the termination of the status of any Customer or Personnel as such
(whether or not due to a breach hereof by Executive) shall preclude, limit or
otherwise affect the rights and remedies of Employer against Executive based
upon any breach hereof during the Restriction Period or before such status of
Customer or Personnel terminated.
8.9 NONCIRCUMVENTION OF COVENANTS. Executive acknowledges and
agrees that, for purposes of this Agreement, an action shall be considered to
have been taken by Executive "indirectly" if taken by or through, with
Executive's knowledge, (a) any member of his immediate family , (b) any Person
owned or controlled, solely or with others, directly or "indirectly" by
Executive or a member of his family, (c) any Person of which he is an owner,
partner, employer, employee, trustee, independent contractor or agent, (d) any
employees, partners, owners or independent contractors of any such Person or (e)
any other one or more representatives or intermediaries, it being the intention
of the parties that Executive shall not directly or indirectly circumvent any
restrictive covenant contained herein or the intent thereof.
8.10 NOTICE OF RESTRICTIONS. During the Restriction Period,
Executive shall notify each prospective employer, partner or co-venturer of the
restrictions contained in this
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Agreement. Employer is hereby authorized to contact any of such Persons for the
purpose of providing notice of such restrictions.
8.11 REDUCTION OF RESTRICTIONS BY COURT ACTION. Each of the
provisions hereof including, without limitation, the periods of time, geographic
areas and types and scopes of duties of, and restrictions on the activities of,
the parties hereto specified herein are and are intended to be divisible, and if
any portion thereof (including any sentence, clause or word) shall be held
contrary to law or invalid or unenforceable in any respect in any jurisdiction,
or as to one or more periods of time, areas or business activities or any part
thereof, the remaining provisions shall not be affected but shall remain in full
force and effect, and any such invalid or unenforceable provision shall be
deemed, without further action on the part of any party hereto or other Person,
modified and amended to the minimum extent necessary to render the same valid
and enforceable in such jurisdiction.
8.12 FAIRNESS OF RESTRICTIONS. Executive acknowledges and agrees
that (a) compliance with the restrictive covenants set forth herein would not
prevent him from earning a living that involves his training and skills without
relocating, but only from engaging in unfair competition with, misappropriating
a corporate opportunity of, or otherwise unfairly harming Employer and (b) the
restrictive covenants set forth herein are intended to provide a minimum level
of protection necessary to protect the legitimate interests of Employer. In
addition, the parties acknowledge that nothing herein is intended to or shall,
limit, replace or otherwise affect any other rights or remedies at law or in
equity for protection against unfair competition with, misappropriation of
corporate opportunities of, disclosure of confidential and proprietary
information of, or defamation of Employer, or for protection of any other rights
or interest of Employer.
SECTION 9. MISCELLANEOUS.
9.1 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF TEXAS AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE
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APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID STATE.
9.2 ENTIRE AGREEMENT. This Agreement (together with the exhibits
attached hereto, which hereby are incorporated by reference) contains the entire
agreement of the parties hereto relating to the employment of Executive by the
Company and the other matters discussed herein and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
9.3 WITHHOLDING TAXES. The Company may withhold from any
compensation or other benefits payable under this Agreement all federal, state,
city or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
9.4 SUPPLEMENTS AND AMENDMENTS. This Agreement may be supplemented
or amended only upon the written consent of each of the parties hereto.
9.5 ASSIGNMENT. Except as expressly provided below, this Agreement
shall not be assignable, in whole or in part, by either party without the prior
written consent of the other party. The Company may, without the prior written
consent of Executive, assign its rights and obligations under this Agreement to
any other corporation, firm or other business entity with or into which the
Company may merge or consolidate, or to which the Company may sell or transfer
all or substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by, or is
under common ownership with, the Company; provided, however, that such
assignment may be made without Executive's prior written consent only if (a)
such assignment has a valid business purpose and is not for the purpose of
avoiding the Company 's obligations hereunder or Executive's realization of the
benefits of this Agreement and (b) the assignee expressly assumes in writing all
obligations and liabilities to Executive hereunder. The Company will cause any
purchaser of all or substantially all of the assets of the Company, by agreement
in form and substance reasonably satisfactory to Executive, to expressly assume
and agree to
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perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such purchase had taken place.
This Agreement shall be binding upon and inure to the benefit of the Company and
their respective successors and permitted assigns. This Agreement and all rights
of Executive hereunder shall inure to the benefit of and be enforceable by
Executive's heirs, personal or legal representatives and beneficiaries. If this
Agreement is terminated pursuant to clause (a) of Section 8.1 hereof, all
amounts payable pursuant to clause (a) of Section 8.2 hereof shall be paid to
Executive's designated beneficiaries or, if no such beneficiaries have been
designated, to Executive's estate.
9.6 NO WAIVER. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
9.7 SEVERABILITY. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be judicially
unenforceable and/or invalid by a court of competent jurisdiction, in whole or
in part, the remaining provisions shall nevertheless be binding, enforceable and
in full force and effect.
9.8 TITLES AND HEADINGS. The titles and headings of the various
Sections of this Agreement are intended solely for convenience of reference and
not intended for any purpose whatsoever to explain, modify or place any
construction upon any of the provisions hereof.
9.9 ATTORNEYS' FEES. In the event that any party hereto brings suit
against the other party, based upon or arising out of a breach or violation of
this Agreement, each party hereto agrees that the party who is successful on the
merits, upon final adjudication
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from which no further appeal can be taken or is taken within the time allowed by
law, shall be entitled to recover his or its reasonable attorneys, fees and
expenses from the party which is not successful.
9.10 INJUNCTIVE RELIEF. Executive agrees that it would be difficult
to compensate the Company fully for damages for any violation of the provisions
of Sections 6 and 8.3 hereof. Accordingly, Executive specifically agrees that
the Company shall be entitled to temporary and permanent injunctive relief to
enforce such provisions of this Agreement. This provision with respect to
injunctive relief shall not, however, diminish the right of the Company to claim
and recover damages in addition to injunctive relief.
9.11 NOTICES. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when hand delivered (which shall include
personal delivery and delivery by courier, messenger or overnight delivery
service) or mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Executive: At his home address in accordance with the
Company's records.
If to the Company:
Natural Health Trends Corp.
00000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: President
If to the Executive:
Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxxx Xxxx, Xxx 000
Xxxxxx, Xxxxxxx 00000
or to such other address of which either party gives notice to the other party
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
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9.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
9.13 JURISDICTION. Each of the parties hereto hereby irrevocably
consents and submits to the exclusive jurisdiction of the courts of the State of
Texas, located in Dallas County, and of the United States District Court for the
Northern District of Texas in connection with any suit, action or other
proceeding concerning the interpretation of this Agreement or enforcement of
Sections 8 or 9 of this Agreement. The Executive waives and agrees not to assert
any defense that the court lacks jurisdiction, venue is improper, inconvenient
forum or otherwise. The Executive waives the right to a jury trial and agrees to
accept service of process by certified mail at the Executive's last known
address.
9.14 POST EMPLOYMENT OBLIGATIONS. (a) All records, files, lists,
including computer generated lists, drawings, documents, equipment and similar
items relating to the Company's business which the Executive shall prepare or
receive from the Company shall remain the Company's sole and exclusive property.
Upon termination of this Agreement, the Executive shall promptly return to the
Company all property of the Company in his possession. The Executive further
represents that he will not copy or cause to be copied, print out or cause to be
printed out any software, documents or other materials originating with or
belonging to the Company. The Executive additionally represents that, upon
termination of his employment with the Company, he will not retain in his
possession any such software, documents or other materials.
(b) The Executive agrees that both during and after his employment
he shall, at the request of the Company, render all assistance and perform all
lawful acts that the Company considers necessary or advisable in connection with
any litigation involving the Company or any director, officer, employee,
shareholder, agent, representative, consultant, client or vendor of the Company.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
LEXXUS INTERNATIONAL (JAPAN), LTD.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: C.E.O.
NATURAL HEALTH TRENDS CORP.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
18
