E M P L O Y M E N T A G R E E
M E N T
THIS
AGREEMENT is made and entered into this 3rd day of April, 2002
effective for the term provided herein, by and between
Reliv’ International, Inc. (hereinafter referred to as
the “Company”) and Robert Scott Montgomery
(hereinafter referred to as the “Employee”).
WHEREAS ,
the Employee is presently, and for some time has been, employed as
Vice-President of International Operations for the Company and has
contributed to the success of the Company;
WHEREAS ,
the Company desires to be assured of the continued association and
services of Employee and Employee desires to continue in the
employment of the Company on the terms provided herein.
NOW,
THEREFORE , in consideration of (a) Employee’s
participation in the Company incentive compensation program,
(b) the continued employment or retention of Employee by the
Company, (c) Employee’s entitlement to severance upon
termination of employment under Section 4.2 and (d) the
premises and of the terms, covenants and conditions hereinafter
contained, the parties hereto agree as follows:
1.
Employment, Duties and Authority .
1.1
The Company hereby employs Employee and Employee hereby accepts
employment by the Company on the terms, covenants and conditions
herein contained.
1.2
The Employee is hereby employed by the Company as Vice-President of
International Operations. The Employee shall have such duties,
responsibilities and authority as the Company shall from time to
time provide.
1.3
During the term of Employee’s employment hereunder, and
subject to the other provisions hereof, Employee shall devote his
full energies, interest, abilities and productive time to the
performance of his duties and responsibilities hereunder and will
perform such duties and responsibilities faithfully and with
reasonable care for the welfare of the Company.
2.
Compensation and Benefits .
2.1
The Company shall pay to Employee during the term of employment
hereunder a basic salary at the annual rate provided in
Schedule A hereto. Such annual rate of salary may be changed
from time to time as the parties agree and such changes shall be
reflected on Schedule A when made. Such basic salary shall be
paid by the Company to Employee each month, less amounts which the
Company may be required to withhold from such payments by
applicable federal, state or local laws or regulations.
2.2
Benefits; Expense Reimbursement .
2.2.1 The Employee
shall be entitled to, and shall receive, all benefits of employment
as listed on Schedule A.
2.2.2 During the
term hereof, the Company shall reimburse Employee for all
reasonable and necessary expenses incurred by Employee in the
performance of his duties hereunder, including without limitation,
travel, meals, lodging, office supplies or equipment subject to
such reasonable limitations, restrictions and reporting standards
as the Employee’s supervisor or the Company may from time to
time establish. Employee shall provide to the Company promptly
after incurring any such expenses a detailed report thereof and
such information relating thereto as the Company shall from time to
time require. Such information shall be sufficient to support the
deductibility of all such expenses by the Company for federal
income tax purposes.
The employment of
Employee hereunder shall be for a one year term commencing on the
date of this Agreement. Upon the expiration of the initial one year
term or any one year renewal term of Employee’s employment
hereunder, the term of such employment shall be automatically
renewed for an additional term of one year, unless Employee or the
Company shall give notice of the termination of Employee’s
employment and this Agreement by written notice to the other more
than 30 days prior to the date of expiration of the initial or
any renewal term. In the event that such notice of termination
shall be given timely, this Agreement shall terminate on the date
of expiration of such initial or renewal term.
4.1 The Company
shall be entitled to terminate the Employee’s employment by
written notice to Employee prior to the expiration of its term or
any renewal term:
4.1.1 in the event
of an Event of Default with respect to Employee as provided herein,
or
4.1.2 upon the
permanent mental or physical disability of Employee as provided
herein occurring during the term or any renewal term of
Employee’s employment hereunder.
4.2 The Company
shall be entitled to terminate the Employee’s employment at
any time upon five (5) days written notice to Employee,
subject to the obligations of paragraph 4.8.
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4.3 For purposes
of this Agreement, an Event of Default with respect to Employee
shall include:
4.3.1 Any failure
by Employee to perform his duties, responsibilities or obligations
hereunder in a faithful and diligent manner or with reasonable care
and (if such failure can be cured) the failure by Employee to cure
such failure within a reasonable amount of time after written
notice thereof shall have been given to Employee by the Company;
or
4.3.2 Commission
by Employee of any material act of dishonesty as an employee of the
Company or of disloyalty to the Company, or any wrongful or
unauthorized appropriation, taking or misuse of funds, property or
business opportunities of the Company.
4.4 Permanent
mental or physical disability of Employee shall be deemed to have
occurred hereunder when Employee shall have failed or been unable
to perform his duties hereunder on a full-time basis for an
aggregate of 60 days in any one period of 90 consecutive days.
In calculating the 60 day time period, unpaid leave which
qualifies under, and which was provided by the Company pursuant to,
the Family and Medical Leave Act of 1993, as amended, shall not be
counted.
4.5 Employee shall
be entitled to terminate his employment with the Company under this
Agreement prior to the expiration of its term or any renewal term
upon thirty (30) days written notice or immediately upon the
occurrence of an Event of Default with respect to the
Company.
4.6 For purposes
of this Agreement an Event of Default with respect to the Company
shall include:
4.6.1 Any failure
by the Company to perform its obligations to Employee under this
Agreement and (if such failure can be cured) the failure by the
Company to cure such failure within a reasonable amount of time
after written notice thereof shall have been given to the Company
by Employee;
(a) admit in
writing its inability to pay its debts generally as they become
due,
(b) file a
petition for relief under any chapter of Title 11 of the United
States Code or a petition to take advantage of any insolvency under
the laws of the United States of America or any state
thereof,
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(c) make an
assignment for the benefit of its creditors,
(d) consent to the
appointment of a receiver of itself or of the whole or any
substantial part of its property,
(e) suffer the
entry of an order for relief under any chapter of Title 11 of the
United Sates Code, or
(f) file a
petition or answer seeking reorganization under the Federal
Bankruptcy Laws or any other applicable law or statute of the
United States of America or any state thereof.
4.7 In the event
of termination of this Agreement and Employee’s employment
hereunder by the Company pursuant to paragraph 4.1 or 4.2 hereof,
all rights and obligations of the Company and Employee hereunder
shall terminate on the date of such termination, except for
Employee’s right to receive (subject to any rights of set off
or counterclaim by the Company) all salary, additional compensation
and benefits which shall have accrued prior to the date of such
termination as well as all other rights of the Company or Employee
which shall have accrued hereunder prior to the date of such
termination. The obligation of the Company for any further payment
of salary, additional compensation or benefits shall terminate as
at the date of such termination, subject to paragraph
4.8.
4.8 In the event
of termination of this Agreement and Employee’s employment
hereunder by the Company pursuant to paragraph 4.2 hereof, the
Company shall be obligated to pay Employee an amount of severance
equal to six (6) months salary, payable by the Company to
Employee over a twelve (12) month period to commence on the date of
termination.
4.9 In the event
of termination of this Agreement by Employee in accordance with
paragraph 4.5 hereof, all rights and obligations of the Company and
Employee hereunder shall terminate on the date of such termination,
except for Employee’s right to receive (subject to any rights
of set off or counterclaim by the Company) all salary, additional
compensation and benefits which shall have accrued prior to the
date of such termination as well as all other rights of the Company
or Employee which shall have accrued hereunder prior to the date of
such termination. The Company’s obligation for the continued
payment of salary, additional compensation and benefits shall
terminate as of the date of such termination.
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5.
Confidential Information .
5.1
“Confidential Information” for purposes of this
Agreement means any and all information disclosed by the Company to
Employee, whether provided or received orally or in writing,
relating to or concerning the business, projects, products,
processes, form
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