Exhibit 10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is made and entered into effective as of
November 20, 2006, (“Effective Date”), by and
between Alvin McCurdy (“Employee”), and Natural
Alternatives International, Inc., a Delaware corporation
(“Company”). Company and Employee may be referred to
collectively as the “Parties.”
RECITALS
A. Company wishes to retain the
services of Employee as Vice President of Operations, but only on
the terms and subject to the conditions set forth in this
Agreement.
B. Employee desires to enter into
the employ of Company and is willing to do so on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of
the mutual promises and covenants set forth in this Agreement and
intending to be legally bound, the Parties agree as
follows:
AGREEMENT
1. Employment .
Employee accepts the offer of Company for employment as
Company’s Vice President of Operations beginning
November 20, 2006. Employee’s employment will be at-will
and may be terminated by either Employee or Company at any time for
any reason or no reason, with or without Cause (defined below),
upon written notice to the other or without any notice upon the
death of Employee. The at-will status of the employment
relationship may not be modified except by an agreement in writing
signed by the President or Chief Executive Officer of the Company
and Employee, the terms of which were approved in advance in
writing by Company’s Board of Directors.
2. Employee Handbook .
Employee and Company understand and agree nothing in
Company’s Employee Handbook is intended to be and nothing in
it should be construed to be a limitation of Company’s right
to terminate, transfer, demote, suspend and administer discipline
at any time for any reason. Employee and Company understand and
agree nothing in Company’s Employee Handbook is intended to
and nothing in such Handbook should be construed to create an
implied or express contract of employment contrary to this
Agreement.
3. Position and
Responsibilities .
a. During Employee’s
employment with Company, Employee shall have such responsibilities,
duties and authority as Company, through its Board of Directors,
may from time to time assign to Employee and that are normal and
customary duties of a Vice President of Operations of a publicly
held corporation. Employee shall perform any other duties
reasonably required by Company and, if requested by Company, shall
serve as a director and/or as an additional officer of Company or
any subsidiary or affiliate of Company without additional
compensation.
b. Employee, in Employee’s
capacity as Vice President of Operations for Company, shall
diligently and to the best of Employee’s ability perform all
duties that such position entails. Employee shall devote such time,
energy, skill and effort to the performance of Employee’s
duties hereunder as may be fairly and reasonably necessary to
faithfully and diligently further the
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business and interests of Company
and its subsidiaries. Employee agrees not to engage in any other
business activity that would materially interfere with the
performance of Employee’s duties under this Agreement.
Employee represents to Company that Employee has no other
outstanding commitments inconsistent with any of the terms of this
Agreement or the services to be rendered under it.
c. Employee shall render
Employee’s service at Company’s offices in the County
of San Diego, California or such other location as is mutually
agreed upon by Company and Employee. It is understood, however, and
agreed that Employee’s duties may from time to time require
travel to other locations including other offices of Company and
its subsidiaries both within and outside the United
States.
4. Compensation
.
a. Salary . During the term
of Employee’s employment, Company agrees to pay Employee a
base salary of Two Hundred Ten Thousand Dollars ($210,000) per year
payable no less frequently than monthly in accordance with
Company’s general payroll practices. For the first year of
employment, the base salary will be prorated from the start date of
employment. The amount of Employee’s base salary as set forth
in this Section 4(a) may be adjusted from time to time by an
agreement in writing signed by the President or Chief Executive
Officer of Company and Employee, the terms of which were approved
in advance in writing by Company’s Board of
Directors.
b. Periodic Overnight Lodging and
Commuting Expenses . Employee shall be entitled to receive
reimbursement for costs associated with periodic, local overnight
lodging expenses arising out of Company business and up to Two
Hundred Fifty Dollars ($250) per month for costs associated with
Employee’s commute from his current residence.
c. Additional Benefits .
During Employee’s employment with Company, in addition to the
other compensation and benefits set forth in this Agreement,
Employee shall be entitled to receive and/or participate in such
other benefits of employment generally available to Company’s
other corporate officers when and as Employee becomes eligible for
them. Company reserves the right to modify, suspend or discontinue
any and all benefit plans, policies and practices at any time
without notice to or recourse by Employee so long as such action is
taken generally with respect to other similarly situated persons
and does not single out Employee.
d. No Other Compensation .
Employee acknowledges and agrees that except as expressly provided
in this Agreement and as set forth in Company’s Employee
Handbook or any other written compensation arrangement approved by
Company’s Board of Directors, Employee is not entitled to any
other compensation or benefits from Company.
e. Withholdings . All
compensation under this Agreement shall be paid less withholdings
required by federal and state law and less deductions agreed to by
Company and Employee.
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5. Termination
.
a. Due to Death .
Employee’s employment with Company shall terminate
automatically in the event of Employee’s death. Company shall
have no obligation to Employee or Employee’s estate for base
salary or any other form of compensation or benefit other than
amounts accrued through the date of Employee’s death except
as otherwise required by law or pursuant to a specific written
policy, agreement or benefit plan of Company.
b. Without Cause, Severance
Benefit . In the event Employee is terminated by Company
without Cause and not as a result of death, upon Employee’s
delivery to Company of an executed general release in a form
substantially similar to that set forth in Attachment #3 attached
to this Agreement (“Release”), Employee shall be
entitled to receive a severance benefit, including standard
employee benefits available to Company’s other corporate
officers, in an amount equal to three (3) months compensation.
If Employee does not execute and deliver the Release, Employee
shall only be entitled to receive a severance benefit in an amount
equal to one (1) months compensation. One half of any
severance benefit owing under this Agreement shall be paid within
ten (10) days of termination and the balance shall be payable
no less frequently than monthly in accordance with Company’s
general payroll practices over the applicable severance period of
one (1) month or three (3) months.
c. With Cause, No Severance
Benefit . Company may terminate Employee for Cause. For
purposes of this Agreement, “Cause” shall mean the
occurrence of one or more of the following events:
(i) Employee’s commission of any fraud against Company;
(ii) Employee’s intentional appropriation for
Employee’s personal use or benefit the funds of Company not
authorized in writing by the Board of Directors;
(iii) Employee’s conviction of any crime involving moral
turpitude; (iv) Employee’s conviction of a violation of
any state or federal law that could result in a material adverse
impact upon the business of Company; (v) Employee engaging in
any other professional employment or consulting or directly or
indirectly participating in or assisting any business that is a
current or potential supplier, customer or competitor of Company
without prior written approval from Company’s Board of
Directors; (vi) Employee’s failure to comply with
Company’s written policy on acceptance of gifts and
gratuities as in effect from time to time; or (vii) when
Employee has been disabled and is unable to perform the essential
functions of the position for any reason notwithstanding reasonable
accommodation and has received from Company compensation in an
amount equivalent to Employee’s severance benefit payment. No
severance benefit shall be due to Employee if Employee is
terminated for Cause, including if Employee is terminated for Cause
upon or after a Change in Control (defined below), except in the
event of disability as set forth above.
d. Resignation or Retirement, No
Severance Benefit . This Agreement shall be terminated upon
Employee’s voluntary retirement or resignation. No severance
benefit shall be due to Employee if Employee resigns or retires
from employment for any reason or at any time including upon or
after a Change in Control.
e. Payment Through Date of
Termination . Except as otherwise set forth in this Agreement,
upon termination of this Agreement for any reason, Employee shall
be entitled to receive any unpaid compensation earned through the
effective date of termination. If this Agreement is terminated for
any reason before year-end bonus or other compensation becoming
payable to Employee, then such bonus and other compensation shall
be forfeited in full by Employee.
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6. Termination Obligations
.
a. Return of Company Property
. Upon termination of this Agreement and cessation of
Employee’s employment, Employee agrees to return all Company
Property (as such term is defined in Attachment #2 to this
Agreement) to Company promptly, but in no event later than two
(2) business days following termination of
employment.
b. Termination of Benefits .
All benefits to which Employee is otherwise entitled shall cease
upon Employee’s termination unless explicitly continued
either under this Agreement or under any specific written policy or
benefit plan of Company.
c. Termination of Other
Positions . Upon termination of Employee’s employment
with Company, Employee shall be deemed to have resigned from all
other offices and directorships then held with Company or its
subsidiaries unless otherwise expressly agreed in a writing signed
by the Parties.
d. Employee Cooperation .
Following termination of Employee’s employment, Employee
shall cooperate fully with Company in all matters including but not
limited to advising Company of all pending work on behalf of
Company and the orderly transfer of work to other employees or
representatives of Company. Employee shall also cooperate in the
defense of any action brought by any third party against Company
that relates in any way to Employee’s acts or omissions while
employed by Company.
e. Survival of Obligations .
Employee’s obligations under this Section 6 shall
survive the termination of employment and the termination of this
Agreement.
7. Change in Control .
In the event of any Change in Control, the following provisions
will apply.
a. Any of the following shall
constitute a “Change in Control” for the purposes of
this Agreement:
(i) The consummation of a merger or
consolidation of Company with or into another entity or any other
corporate reorganization, if more than 50% of the combined voting
power of the continuing or surviving entity’s securities
outstanding immediately after such merger, consolidation or other
reorganization is owned by persons who were not stockholders of
Company immediately prior to such merger, consolidation or other
reorganization;
(ii) The sale, transfer or other
disposition of all or substantially all of Company’s
assets;
(iii) A change in the composition of
Company’s Board of Directors, as a result of which fewer than
50% of the incumbent directors are directors who either
(i) had been directors of Company on the date 24 months prior
to the date of the event that may constitute a Change in Control
(the “original directors”) or (ii) were elected,
or nominated for election, to the Board of Directors with the
affirmative votes of at least a majority of the aggregate of the
original directors who were still in office at the time of the
election or nomination and the directors whose election or
nomination was previously so approved, or
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(iv) Any transaction as a result of
which any person is the “beneficial owner” (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(“Exchange Act”)), directly or indirectly, of
securities of Company representing at least 20% of the total voting
power represented by Company’s then outstanding voting
securities. For this purpose, the term “person” shall
have the same meaning as when used in Sections 13(d) and 14(d) of
the Exchange Act but shall exclude (i) a trustee or other
fiduciary holding securities under an employee benefit plan of
Company or of a parent or subsidiary of Company and (ii) a
corporation owned directly or indirectly by the stockholders of
Company in substantially the same proportions as their ownership of
the common stock of Company.
A transaction shall not constitute a
Change in Control if its sole purpose is to change the state of
Company’s incorporation or to create a holding company that
will be owned in substantially the same proportions by the persons
who held Company’s securities immediately before such
transaction.
b. In the event of a Change in
Control, this Agreement shall continue in effect unless terminated
by Employee or Company.
c. If Employee is terminated without
Cause following a Change in Control by Company and/or the surviving
or resulting corporation, upon Employee’s delivery to Company
of an executed Release, Employee shall be entitled to receive as
severance pay or liquidated damages, or both, a lump sum payment
(“Change in Control Severance Payment”) in an amount
equal to one (1) year’s compensation or such greater
amount as the Board of Directors determines from time to time
pursuant to terms which may not be revoked or reduced thereafter.
If Employee does not execute and deliver the Release, Employee
shall only be entitled to receive a Change in Control Severance
Payment in an amount equal to one (1) months
compensation.
d. Any Change in Control Severance
Payment shall be made not later than the fifteenth (15th) day
following the effective date of Employee’s termination
without Cause in connection with a Change in Control; provided,
however, that if the amount of such payment cannot be finally
determined on or before such date, Company shall pay to Employee on
such date a good faith estimate of the minimum amount of such
payment, and shall pay the remainder of such payment (together with
interest at the rate provided in Section 1274(b)(2)(B) of the
Internal Revenue Code of 1986, as amended (“Code”)), as
soon as the amount thereof can be determined, but in no event later
than the thirtieth (30th) day after the applicable termination
date. If the amount of the estimated payment exceeds the amount
subsequently determined to have been due, such excess shall
constitute a loan by Company to Employee payable on the fifteenth
(15th) day after receipt by Employee of a written demand for
payment from Company (together with interest calculated as set
forth above). The total of any payment pursuant to this
Section 7 shall be limited to the extent necessary, in the
opinion of legal counsel acceptable to Employee and Company, to
avoid the payment of an “excess parachute” payment
within the meaning of Section 280G of the Code or any similar
successor provision.
e. In the event of termination of
Employee’s employment under Section 7(c), and provided
Employee delivers to Company an executed Release, Company shall
cause each then-outstanding stock option granted by Company to
Employee as of the date of termination to become fully exercisable
and to remain exercisable for the term of the option.
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8. Arbitration .
Employee and Company agree to the Mutual Agreement to Mediate and
Arbitrate Claims attached to and incorporated into this Agreement
as Attachment #1. Employee’s obligations under this
Section 8 and the terms of the Mutual Agreement to Mediate and
Arbitrate Claims shall survive the termination of employment and
the termination of this Agreement.
9. Confidential Information
and Inventions . Employee and Company agree to the
Confidential Information and Invention Assignment Agreement,
Covenant of Exclusivity and Covenant Not to Compete attached to and
incorporated into this Agreement as Attachment #2. Employee’s
obligations under this Section 9 and the terms of the
Confidential Information and Invention Assignment Agreement,
Covenant of Exclusivity and Covenant Not to Compete shall survive
the termination of employment and the termination of this
Agreement.
10. Competitive Activity
. Employee covenants, warrants and represents that during the
period of Employee’s employment with Company, Employee shall
not engage anywhere, directly or indirectly (as a principal,
shareholder, partner, director, manager, member, officer, agent,
employee, consultant or otherwise), or be financially interested in
any business that is involved in business activities that are the
same as, similar to, or in competition with the business activities
carried on by Company or any business that is a current or
potential supplier, customer or competitor of Company without prior
written approval from Company’s Board of Directors.
Notwithstanding the foregoing, Employee may invest in and hold up
to one percent (1%) of the outstanding voting stock of a
publicly held company that is involved in business activities that
are the same as, similar to, or in competition with the business
activities carried on by Company or any business that is a current
or potential supplier, customer or competitor of Company without
the prior written approval of Company’s Board of Directors;
provided, however, that if such publicly held company is a current
or potential supplier, customer or competitor of Company, Employee
shall advise the President of Company in writing of
Employee’s investment in such company as soon as reasonably
practicable.
11. Employee Conduct .
Employee covenants, warrants and represents that during the period
of Employee’s employment with Company, Employee shall at all
times comply with Company’s written policy as in effect from
time to time on the acceptance of gifts and gratuities from
customers, vendors, suppliers or other persons doing business with
Company. Employee represents and understands that acceptance or
encouragement of any gift or gratuity not in compliance with such
policy may create a perceived financial obligation and/or conflict
of interest for Company and shall not be permitted as a means to
influence business decisions, transactions or service. In this
situation, as in all other areas of employment, Employee is
expected to conduct himself or herself using the highest ethical
standard.
12. Miscellaneous
Provisions .
a. Entire Agreement . This
Agreement and any attachments and/or exhibits contains the entire
agreement between the Parties. It supersedes all other agreements
either oral or in writing between the Parties with respect to
Employee’s employment by Company. Each party to this
Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any
party or anyone acting on behalf of any party that are not embodied
in this Agreement and acknowledges that no other agreement,
statement or promise not contained in this Agreement shall be valid
or binding. To the extent the practices, policies or procedures of
Company now or in the future are inconsistent with the terms of
this Agreement, the provisions of this Agreement shall
control.
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b. Governing Law . This
Agreement shall be construed and enforced in accordance with the
laws of the State of California.
c. Severability . Should any
part or provision of this Agreement be held by a court of competent
jurisdiction to be illegal, unenforceable, invalid or void, the
remaining provisions of this Agreement shall continue in full force
and effect and the validity of the remaining provisions shall not
be affected by such holding.
d. Attorneys’ Fees .
Except as set forth in the Mutual Agreement to Mediate and
Arbitrate Claims incorporated as Attachment #1, should any party
institute any action, arbitration or proceeding to enforce,
interpret or apply any provision of this Agreement, the Parties
agree the prevailing party shall be entitled to reimbursement by
the non-prevailing party of all recoverable costs and expenses,
including but not limited to reasonable attorneys’
fees.
e. Interpretation . This
Agreement shall be construed as a whole according to its fair
meaning and not in favor of or against any party. By way of example
and not in limitation, this Agreement shall not be construed in
favor of the party receiving a benefit nor against the party
responsible for any particular language in this Agreement. The
headings and captions contained in this Agreement are for
convenience of reference only and shall not constitute a part of
this Agreement and shall not be used in the construction or
interpretation of this Agreement.
f. Amendment; Waiver . This
Agreement may not be modified or amended by oral agreement or
course of conduct, but only by an agreement in writing signed by
the President or Chief Executive Officer of Company and Employee,
the terms of which were approved in advance in writing by
Company’s Board of Directors. The failure of either party at
any time to require the performance by the other party of any
provision in this Agreement or its incorporated attachments shall
in no way affect the full right to require such performance at any
time thereafter, nor shall the waiver by either party of a breach
of any provision be taken or held to be a waiver of any succeeding
breach of such provision or waiver of the provision itself or a
waiver of any other provision of this Agreement.
g. Assignment . This
Agreement is binding on and is for the benefit of the Parties and
their respective successors, heirs, executors, administrators and
other legal representatives. Neither this Agreement nor any right
or obligation hereunder may be assigned by Company (except to an
affiliate of Company or to a person as defined in this Agreement in
accordance with a Change in Control) or by Employee.
h. No Restrictions; No
Violation . Employee represents and warrants that:
(i) Employee is not a party to any agreement that would
restrict or prohibit Employee from entering into this Agreement or
performing fully Employee’s obligations hereunder; and
(ii) the execution by Employee of this Agreement and the
performance by Employee of Employee’s obligations and duties
pursuant to this Agreement will not result in any breach of any
other agreement to which Employee is a party.
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i. Counterparts . This
Agreement may be executed in counterparts each of which will be
deemed an original copy of this Agreement and all of which when
taken together will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the
Parties and may be used in lieu of the original Agreement for all
purposes. Signatures of the parties transmitted by facsimile shall
be deemed to be their original signatures for all
purposes.
j. Legal Representation;
Independent Counsel. The law firm of Fisher Thurber LLP has
prepared this Agreement on behalf of Company based on its
instructions. Fisher Thurber LLP does not represent any other party
to this Agreement. In executing this Agreement, Employee represents
that Employee has neither requested nor been given legal advice or
counsel by Fisher Thurber LLP or any of its attorneys. Employee is
aware of Employee’s right to obtain separate legal counsel
with respect to the negotiation and execution of this Agreement and
acknowledges that Fisher Thurber LLP has recommended Employee
retain Employee’s own counsel for such purpose. Employee
further acknowledges that Employee (i) has read and
understands this Agreement and its exhibits and attachments;
(ii) has had the opportunity to retain separate counsel in
connection with the negotiation and execution of this Agreement;
and (iii) has relied on the advice of separate counsel with
respect to this Agreement or made the conscious decision not to
retain counsel in connection with the negotiation and execution of
this Agreement.
IN WITNESS WHEREOF, the Parties have
executed this Agreement effective as of the Effective
Date.
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EMPLOYEE
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/s/ Alvin
McCurdy
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Alvin
McCurdy
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COMPANY
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Natural Alternatives International,
Inc.,
a Delaware corporation
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By:
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/s/ Randell Weaver
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Randell Weaver, President
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ATTACHMENT #1
MUTUAL AGREEMENT TO MEDIATE AND
ARBITRATE CLAIMS
This Mutual Agreement to Mediate and
Arbitrate Claims (“Agreement”) is made and entered into
effective as of November 20, 2006, (“Effective
Date”), by and between Alvin McCurdy
(“Employee”), and Natural Alternatives International,
Inc., a Delaware corporation (“Company”).
In consideration of and as a
condition of Employee’s prospective employment relationship
with Company, Employee’s employment rights under
Employee’s Employment Agreement, Employee’s
participation in Company’s benefit programs (when and if
eligible), Employee’s access to and receipt of confidential
information of Company, and other good and valuable consideration,
all of which Employee considers to have been negotiated at
arm’s length, Employee and Company agree to the
following:
1. Claims Covered by this
Agreement .
a. To the fullest extent permitted
by law, all claims and disputes between Employee (and
Employee’s successors and assigns) and Company relating in
any manner whatsoever to the employment or termination of Employee,
including without limitation all claims and disputes arising under
this Agreement or that certain Employment Agreement entered into by
and between Company and Employee on equal date hereof, as may be
amended from time to time (“Employment Agreement”),
shall be resolved by mediation and arbitration as set forth herein.
All persons and entities specified in the preceding sentence (other
than Company and Employee) shall be considered third-party
beneficiaries of the rights and obligations created by this
Agreement. Claims and disputes covered by this Agreement include
without limitation those arising under:
(i) Any federal, state or local
laws, regulations or statutes prohibiting employment discrimination
(including, without limitation, discrimination relating to race,
sex, national origin, age, disability, religion, or sexual
orientation) and harassment;
(ii) Any alleged or actual agreement
or covenant (oral, written or implied) between Employee and
Company;
(iii) Any Company policy,
compensation, wage or related claim or benefit plan, unless the
decision in question was made by an entity other than
Company;
(iv) Any public policy;
and
(v) Any other claim for personal,
emotional, physical or economic injury.
b. The only disputes between
Employee and Company that are not included within this Agreement
are:
(i) Any claim by Employee for
workers’ compensation or unemployment compensation benefits;
and
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(ii) Any claim by Employee for
benefits under a Company plan that provides for its own arbitration
procedure.
2. Mandatory Mediation of
Claims and Disputes .
a. If any claim or dispute covered
under this Agreement cannot be resolved by negotiation between the
parties, the following mediation and arbitration procedures shall
be invoked. Before invoking the binding arbitration procedure set
forth below, Company and Employee shall first participate in
mandatory mediation of any dispute or claim covered under this
Agreement.
b. The claim or dispute shall be
submitted to mediation before a mediator of the Judicial
Arbitration and Mediation