Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this
“Agreement”) is entered into by and between Mannatech,
Incorporated (the “Company”) and Randy S. Bancino (the
“Employee”), and has an effective date of March 2, 2009
(“Effective Date”). The Company desires to employ the
Employee, and the Employee desires to be employed by the Company.
Therefore, in consideration of the mutual promises and agreements
contained herein, the Company and the Employee (each a
“Party” and collectively, the “Parties”)
hereby agree as follows:
SECTION 1.
EMPLOYMENT
1.1. Employment
. The Company hereby
employs the Employee, and the Employee hereby accepts employment by
the Company, for the period and upon the other terms and conditions
contained in this Agreement.
1.2.
Office and Duties . The Employee shall serve as the Senior Vice
President - Global Business Operations of the Company, with the
authority, duties and responsibilities described herein and those
customarily incident to such office. The Employee shall report
directly to the Chief Executive Officer of the Company (the
“CEO”)and shall perform such other services, duties and
responsibilities commensurate with Employee’s position as may
from time to time be assigned to Employee by the CEO or the Board
of Directors of the Company (the “Board”).
1.3.
Performance . During Employee’s employment under this
Agreement, the Employee shall devote on a full-time basis all of
his time, energy, skill and best efforts to the performance of
Employee’s duties hereunder in a manner that will faithfully
and diligently further the business and interests of the Company.
The Employee may, however, engage in civic, charitable, and
professional or trade activities so long as those activities do not
interfere with the performance of Employee’s duties
hereunder. The Employee shall comply with the employee policies and
written manuals of the Company that are applicable generally to
executive employees of the Company, as they exist and/or are
modified from time to time. In the event of conflict or
inconsistency between this Agreement and the employee policies and
written manuals of the Company, the terms of this Agreement shall
govern. Except as specifically contemplated herein, the Employee
shall not work either on a part-time or independent contractor
basis for any other business or enterprise during the Term of
Employment.
1.4.
Place of Work . The Employee shall perform services under this
Agreement at the Company’s principal office in the City of
Coppell, Dallas County, Texas, and at such other place or places as
the Employee’s duties and responsibilities may require. The
Employee understands and agrees that Employee may be required to
travel in connection with the performance of his duties.
1.5.
Directors’ and Officers’ Liability Insurance
. To the extent that the
Company maintains one or more policies of directors’ and
officers’ liability insurance during the Employee’s
employment under this Agreement (the “D&O
Policies”), then the Company will provide the Employee
coverage under the D&O Policies for acts or omissions by the
Employee in the performance of his duties to the Company under this
Agreement as an officer of the Company.
1.6.
Indemnity . As
of the Effective Date, the Company shall defend, indemnify and hold
harmless the Employee against all claims, actions, lawsuits,
judgments, penalties, fines, settlements and reasonable expenses
that are filed, pursued, or otherwise sought by third parties, as
applicable, in any proceeding resulting from the performance of the
Employee’s duties to the Company under this
Agreement.
1.7.
Exclusive Employment . Without limiting Section 1.3 hereof, during
the term of employment, the Employee will not, without the prior
written consent of the Board:
a. serve
as a spokesman, representative, employee, consultant, agent,
officer, or member of any board of directors (or any similar
governing body) for any for-profit business other than the
Company;
b. serve
as a spokesman, representative, employee, owner, consultant, agent,
officer, or member of any board of directors (or any similar
governing body) for any business which is a supplier to the Company
or which competes with the Company, in each case whether directly
or indirectly;
c. own
any equity or economic interest in any company that competes
directly or indirectly with the Company, except that this does not
preclude ownership of less than 5% of the outstanding equity
securities of any public reporting company; or
d. promote
or endorse at Company business functions any other organization(s)
with which Employee may be associated or affiliated.
SECTION 2.
EMPLOYMENT
TERM
2.1.
Term . The term
of the Employee’s employment under this Agreement commences
on the Effective Date and shall continue through two (2) years,
unless terminated earlier by either the Company or Employee giving
the other at least 30 days’ prior written notice of
termination, for any or no reason, to the other Party
(“Notice of Early Termination”) or unless terminated
earlier in accordance with Section 9 hereof. If a Notice of
Early Termination is given in accordance with the preceding
sentence, then (a) the term of employment under this Agreement
will continue until the expiration of the notice period specified
in the Notice of Early Termination, and (b) the Company may
instruct the Employee not to come into the Company’s offices
or to attend any of the Company’s business functions through
the last date of employment, and the Employee’s following
such instruction will not constitute Cause for termination or
otherwise impair the Employee’s rights hereunder. If the
Agreement is not
terminated by either Party as
provided for herein, it will renew for successive one (1) year
terms, unless either Party gives the other at least thirty (30)
days’ prior written notice of its intent not to
renew.
SECTION 3.
COMPENSATION FOR
EMPLOYMENT
3.1.
Base Salary . The base salary of the Employee for all of
Employee’s services, duties and responsibilities to the
Company and all of Employee’s agreements and covenants with
or to the Company under this Agreement shall be at the annual rate
of Two Hundred Ninety Thousand Dollars ($290,000), which the
Company shall pay to the Employee in equal installments in
accordance with its normal payroll policies.
a. Employee’s
performance and salary shall be reviewed by the CEO and the
Compensation Committee annually in accordance with the
Company’s annual performance review process.
b. Employee’s
Base Salary for any partial year will be prorated based upon the
number of days elapsed in such year. Employee’s pay may be
raised by the Company from time to time as the Company deems
appropriate in its sole discretion, by way of an addendum or other
documentation, without otherwise effecting this Agreement.
Notwithstanding any pay increase, the employment of Employee shall
be construed as continuing under this Agreement.
3.2.
Annual Bonus . During Employee’s employment under this
Agreement, the Employee is also eligible to participate in the
Company’s annual executive bonus program (the
“Executive Bonus Program”). The opportunity to earn a
bonus and the amount of any bonus compensation under the Executive
Bonus Program will be determined in accordance with criteria
established by the Board or the Compensation Committee, which will
comply with the requirements of Section 409A of the Internal
Revenue Code, unless the payment of the bonus is exempt as not
constituting a deferral of income. The Employee acknowledges that
any bonus compensation under the Bonus Program will be
discretionary, with the sole discretion resting with the Board or
the Compensation Committee. Further, unless otherwise determined by
the Compensation Committee, the Employee must remain employed by
the Company at the time the bonus is paid in order to be eligible
to receive the bonus.
3.3.
Payment and Reimbursement of Work-Related Expenses
. During Employee’s
employment under this Agreement, the Company shall pay or reimburse
the Employee, in accordance with the applicable policies and
procedures of the Company, for all reasonable travel and other
reasonable expenses incurred by the Employee in performing his
obligations under this Agreement, provided that the Employee
properly accounts for such expenses in accordance with the regular
policies of the Company.
3.4.
Relocation Allowance . In the event it is necessary for Employee to
relocate residences, the Company shall pay the Employee a one-time
relocation allowance in the amount
of Twenty Five Thousand Dollars
($25,000) (the “Relocation Allowance”). The Relocation
Allowance will be payable in a lumpsum.
3.5.
Health Insurance/401(k) . During Employee’s employment under this
Agreement, the Employee shall be entitled to participate in or
receive benefits under any employee-benefit plan or arrangement
made available by the Company to its employees generally (including
any medical, dental, short-term and long-term disability, life
insurance and 401(k) programs), subject to eligibility conditions
or requirements and to the terms, conditions and overall
administration of each of such plans and arrangements. Nothing in
this Agreement will preclude the Company from amending or
terminating any of the benefit plans or programs applicable to
Employee as long as such amendment or termination is applicable to
all similarly situated employees, without otherwise effecting this
Agreement. Notwithstanding any change in benefits, the employment
of Employee shall be construed as continuing under this
Agreement.
3.6.
Executive Vehicle Program . During Employee’s employment under this
Agreement, the Employee will also be eligible to participate in the
Company’s executive vehicle program, subject to all of its
terms, regarding a vehicle with a lease cost to the Company no
greater than that afforded to other similarly situated executive
officers of the Company, with auto liability insurance coverage
(comprehensive, collision and liability) for the leased vehicle
paid by the Company and all routine and necessary repairs to the
leased vehicle paid for by the Company or reimbursed to the
Employee, subject to approval by the Chief Financial Officer of the
Company.
3.7.
Vacation . During Employee’s employment under this
Agreement, the Employee shall be entitled to 20 days of paid
vacation annually, in accordance with the regular policies of the
Company.
3.8.
Tax Withholding . The Company may deduct from any compensation or
other amount payable to the Employee under this Agreement social
security (FICA) taxes and all federal, state, municipal, or other
such taxes or governmental charges as may now be in effect or that
may hereafter be enacted or required.
SECTION 4.
CONFIDENTIAL
INFORMATION
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4.1.
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Definition of
“Confidential Information .”
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a. “Confidential
Information” means material, data, ideas, inventions,
formulae, patterns, compilations, programs, devices, methods,
techniques, processes, know how, plans (marketing, business,
strategic, technical or otherwise), arrangements, pricing and/or
other information of or relating to the Company (as well as its
customers and/or vendors) that is confidential, proprietary, and/or
a trade secret (a) by its nature, (b) based on how it is
treated or designated by the Company, (c) such that its
appropriation, use or disclosure would have a material adverse
effect on the business or planned business of the Company, or
(d) as a matter of
law. All Confidential Information is
the property of the Company, the appropriation, use and/or
disclosure of which is governed and restricted by this
Agreement.
b.
Exclusions . Confidential Information does not include
material, data, and/or information that (i) the Company has
voluntarily placed in the public domain; (ii) has been
lawfully and independently developed and publicly disclosed by
third parties; (iii) constitutes the knowledge and skills
gained by Employee during the Employment Period; or
(iv) otherwise enters the public domain through lawful means;
provided, however, that the unauthorized appropriation, use, or
disclosure of Confidential Information by Employee, directly or
indirectly, shall not affect the protection and relief afforded by
this Agreement regarding such information.
4.2.
Provision of Confidential Information .
Irrespective of the Term of
Employment, and in consideration of the Employee’s promises
in Section 4.3 of this Agreement, the Company promises to
immediately provide the Employee with access to Confidential
Information, including (but not limited to) the new Confidential
Information that the Company is separately and concurrently
providing to the Employee. The Parties stipulate and agree that
Employee has never before seen or had access to the new
Confidential Information referenced herein.
4.3.
Protection of Confidential Information .
Both during and after the Employment
Period, the Employee shall not in any manner, directly or
indirectly: (i) appropriate, download, print, copy, remove,
use, disclose, divulge, or communicate Confidential Information to
any Person, including (without limitation) originals or copies of
any Confidential Information, in any media or format, except for
the Company’s benefit within the course and scope of the
Employee’s employment or with the prior written consent of
the CEO; or (ii) take or encourage any action which would
circumvent, interfere with or otherwise diminish the value or
benefit of Confidential Information to the Company. The Employee
agrees to use Employee’s best efforts and utmost diligence to
protect and safeguard the Confidential Information as prescribed in
this Section 4.
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4.4.
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Return and Review of
Information .
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a.
Company Property . All Confidential Information and other
information and property affecting or relating to the business of
the Company within the Employee’s possession, custody or
control, regardless of form or format, shall remain at all times
the property of the Company.
b.
Upon Request . At any time that the Company may request,
during or after the Employment Period, the Employee shall deliver
to the Company all Confidential Information and other information
and property affecting or relating to the business of the Company
within Employee’s possession, custody or control, regardless
of form or format. Both during and after the Employment Period, the
Company shall have the right of reasonable access to review,
inspect, copy, and/or confiscate any Confidential Information
within the Employee’s possession, custody or
control.
c.
Upon Termination . The Employee shall return to the Company
all Confidential Information and other information and property
affecting or relating to the business of the Company within the
Employee’s possession, custody or control, regardless of form
or format, without the necessity of a request, forthwith upon
resignation or termination of Employee’s employment,
regardless of whether the resignation or termination is voluntary,
involuntary, for Cause or not for Cause.
4.5.
Response to Third Party Requests .
Upon receipt of any formal or
informal request, by legal process or otherwise, seeking the
Employee’s direct or indirect disclosure or production of any
Confidential Information to any Person, the Employee shall promptly
and timely notify the Company and provide a description and, if
applicable, hand deliver a copy of such request to the Company. The
Employee irrevocably nominates and appoints the Company, as the
Employee’s true and lawful attorney-in-fact to act in the
Employee’s name, place and stead to perform any act that the
Employee might perform to defend and protect against any disclosure
of Confidential Information.
SECTION 5.
OWNERSHIP OF INFORMATION,
INVENTIONS, AND ORIGINAL WORK
5.1.
Definition of Work Product . As used in this Agreement, the term “Work
Product” means all patents and patent applications, all
inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports, creative works, discoveries,
software, computer programs, modifications, enhancements, know-how,
product, formula or formulations, concepts and ideas, and all
similar or related information (in each case whether or not
patentable), all copyrights and copyrightable works, all trade
secrets, confidential information, and all other intellectual
property and intellectual property rights that (in any case above)
are conceived, reduced to practice, created, developed or made by
the Employee, either alone or with others, in the course of
employment with the Company (including, without limitation, any
such employment before the Effective Date).
5.2.
Ownership and Assignment of Work Product .
The Employee hereby agrees that all
Work Product will be the exclusive property of the Company, and in
consideration of this Agreement, without further compensation,
hereby assigns, and (as necessary) agrees to assign, to the Company
all right, title, and interest to all Work Product that:
(a) relates to: (i) all or any aspect of the Company
Parties’ actual or anticipated business, research, and
development or existing or future products or services, or
(ii) an actual or demonstrably anticipated research or
development project of the Company; (b) is conceived, created,
reduced to practice, developed, or made entirely or in any part:
(i) during his employment or on Company time, or
(ii) using any equipment, supplies, facilities, assets,
materials, information (including, without limitation, Confidential
Information) or resources of any of the Company Parties (including,
without limitation, any intellectual property rights); or
(c) results from any work performed by the Employee for the
Company. Any creative works, discoveries, designs, software,
computer programs, inventions, improvements, modifications,
enhancements, know-how, product, formula or formulation, concept or
idea that the Employee has within one year following the
resignation or termination of employment with the Company shall be
deemed to be Work Product owned by
the Company under this
Section 5, unless proved by the Employee to have been outside
each of the criteria specified above in this
Section 5.2.
5.3.
Disclosure and Cooperation . The Employee shall promptly disclose Work
Product to the CEO and perform all actions reasonably requested by
the Company (whether during or after the Employment Period) to
establish and confirm the ownership and proprietary interest of any
of the Company Parties in any Work Product (including, without
limitation, the execution of assignments, consents, powers of
attorney, applications and other instruments). The Employee agrees
to assist the Company in obtaining any patent for, copyright on or
other intellectual-property protection for the Work Product, and to
execute and deliver or otherwise provide such documentation and
provide such other assistance as is necessary to or reasonably
requested by the Company or its agents or counsel to obtain such
patent, copyright, or other protection. The Employee shall maintain
adequate written records of the Work Product, in such format as may
be specified by the Company, and make such records available to, as
the sole property of, the Company at all times. The Employee shall
not file any patent or copyright applications related to any Work
Product except with the written consent of the CEO.
SECTION 6.
NON-COMPETITION AND
NON-SOLICITATION
6.1.
Consideration . In consideration of the Confidential Information
and specialized training being provided to Employee as stated in
Section 4 of this Agreement, and other valuable consideration
as stated in this Agreement, including (without limitation) the
business relationships, Company goodwill, customer and vendor
relationships, and work experience that the Employee will have the
opportunity to obtain, use and develop under this Agreement, the
Employee agrees to the restrictive covenants stated in this
Section 6.
a.
Ancillary Agreement . The Employee acknowledges and agrees
that the restrictive covenants contained in this Section 6 are
ancillary to and part of an otherwise enforceable agreement, such
being the agreements concerning Confidential Information and other
consideration as stated in this Agreement.
b.
Valuable Information . The Employee acknowledges and agrees
that the Confidential Information and specialized training provided
by the Company is highly valuable to the Company and, therefore,
that the Company’s investment in the training and the
protection and maintenance of the Confidential Information
constitutes a legitimate interest to be protected by the Company by
the restrictive covenants set forth in this
Section 6.
c.
Unique Relationships with Customers and Associates . The
Employee acknowledges and agrees that (i) in the highly
competitive business in which the Company is engaged, personal
contact is of primary importance in securing new and retaining
present Associates and Customers; (ii) the Company has a
legitimate interest in maintaining its relationships with its
Associates and Customers; and (iii) it would be unfair for the
Employee to
solicit the business of the
Company’s Associates and Customers, exploiting the personal
relationships the Employee develops with the Company’s
Associates and Customers by virtue of the Employe
