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| 8-K - CURRENT REPORT - NXT Nutritionals Holdings, Inc. | f8k012610_nxt.htm |
Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this "Agreement") is entered into this 26th day of
January, 2010, by and between NXT Nutritionals Holdings, Inc., (the "Company"),
and Mark A. Giresi (the "Executive") (collectively, the
“Parties”).
WHEREAS,
the Company is a publicly traded company engaged in the sale and marketing of
healthier food products with its shares of common stock quoted on the OTC
Bulletin Board; and
WHEREAS,
the Company wishes to employ the Executive as Chief Operating Officer and
General Counsel upon the terms and conditions set forth in this Agreement and
the Executive is willing to accept employment subject to the terms and
conditions set forth below.
NOW,
THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
1. Employment.
(a) Position
and Duties.
(i) Subject
to the terms and conditions hereof, the Company hereby employs the Executive
during the term of employment set forth in Section 2 to serve as Chief Operating
Officer and General Counsel of the Company. The Executive shall be responsible
for all operations of the Company, including finance, legal and commercial
relationships, and perform such other services and duties as are normally and
customarily associated with such position as well as such other associated
duties as the board of directors of the Company (the “Board”) shall determine.
The Executive shall report directly to the Chief Executive Officer of the
Company. The Executive shall obey the lawful direction of the Chief Executive
Officer and shall use his diligent efforts to promote the interests of the
Company and to maintain and promote the reputation thereof.
1
(ii) During
the Employment Term set forth in Section 2 hereof, the Executive shall use his
best efforts to perform his duties under this Agreement and shall devote such
time, energy and skill as is necessary in the performance of his duties with the
Company. The Executive will not, unless as a representative of the Company or
with consent in writing of the Board, be directly or indirectly engaged or
concerned in any other business activities. Notwithstanding the foregoing
provisions, the Executive is not prohibited from (A) serving on the boards of
directors or advisory committees of the companies listed on Exhibit
A hereto; (B) participating in charitable, civic, educational,
professional or community affairs or serving on the board of directors or
advisory committees of non-profit entities; and (C) managing his and his
family’s personal investments, in each case, provided
that such activities in the aggregate do not materially interfere with
his duties hereunder. Company agrees that the Executive’s other
activities will not and do not impede his ability to perform his role under this
Agreement.
(b) Termination
of Director’s Agreement. The Executive shall continue to serve as a
member of the Board until the next annual shareholder meeting of the Company.
Upon the effectiveness of this Agreement, the outstanding Director’s Agreement
between the Company and the Executive shall be terminated, provided
however, the terms and provisions in the Director’s Agreement pertaining
to compensation for activities occurring in the year of 2009 shall survive until
such compensation is paid in full to the Executive.
2. Employment
Term. Subject to Section 5 herein, the term of employment of the
Executive under this Agreement shall start on January 1, 2010 and end on
December 31, 2012 (the “Initial Employment Term”). Subject to Section 5 herein,
at the end of the Initial Employment Term this Agreement shall be automatically
extended for an additional one-year period (the “Additional Term”) unless either
party to this Agreement elects not to extend this Agreement with a written
notice at least 30 days prior to the expiration of the Additional Term. The
Initial Term and any Additional Term shall be referred to herein as the
"Employment Term."
3. Compensation.
(a) Base
Salary. In consideration of the services to be rendered
hereunder, the Company hereby agrees to pay the Executive a monthly based
compensation of Twenty Thousand Dollars ($20,000) payable in equal biweekly
installment (the “Biweekly Installment”), provided,
however, 50% of each Biweekly Installment (the “Deferred Salary”) shall
be deferred and payable in its entirety on the earlier to occur of (1) the
termination of the Employment Term or (2) a Change in Control as defined in
Section 7 herein.
2
(b) Stock
Compensation. Subject to the terms and conditions provided in this
Agreement and the Restricted Stock Award Agreement by and between the Company
and the Executive, the Company hereby agrees to grant the Executive restricted
stock awards (the “Stock Awards”) as follows:
(i) During
the first year of the Initial Employment Term, the Company shall grant the
Executive on or before February 28, 2010 (i) 400,000 shares of the Company’s
common stock (the “Common Stock”), of which 40,000 shall fully vest on July 1,
2010 and an additional 40,000 shares shall fully vest on the first day of each
calendar month thereafter; (ii) 500,000 shares of Common Stock, of which 40,000
shall fully vest on May 1, 2011; an additional 40,000 shares shall vest on each
of June 1, August 1, September 1, October 1, 2011; and the remaining 220,000
shares shall fully vest on December 1, 2011.
(ii) During
the second year of the Employment Term, the Company shall grant the Executive on
or before January 1, 2011 500,000 shares of Common Stock which shall fully vest
on December 31, 2011.
(iii) During
the third year of the Employment Term, the Company shall grant the Executive on
or about January 1, 2012 500,000 shares of Common Stock which shall fully vest
on December 31, 2012.
Prior to
December 1, 2011, the Stock Awards granted to the Executive shall be subject to
a resale restriction as follows: (A) no more than 40,000 shares of the Stock
Award may be sold in any one month period and (B) no more than 10,000 shares of
the Stock Award may be sold on any day during the Employment
Term. After that date, there will be no resale restriction imposed on
Executive. In the event of a Change of Control (defined below) of the
Company, this resale restriction shall no longer be in effect.
(c) Stock
Options. In addition to the Stock Awards, the Executive shall
also be eligible to participate in and to receive annual stock options pursuant
to Company’s Equity Incentive Plan in such amount as determined by the Board at
a level commensurate with the Executive’s position with the
Company.
3
4. Benefits.
(a) Benefit
Plans. The Executive shall be eligible to participate in any
Executive benefit plan of the Company, including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or other
retirement benefits that the Company has adopted or may adopt, maintain or
contribute to the benefit of its senior executives, at a level commensurate with
the Executive’s positions, subject to satisfying the applicable eligibility
requirements. The Company may at any time or from time to time amend, modify,
suspend or terminate any employee benefit plan, program or arrangement for any
reason in its sole discretion.
(b) Vacation
and Holidays. The Executive shall be entitled to an annual
paid vacation in accordance with the Company's policy applicable to senior
executives from time to time in effect, but in no event less than three (3)
weeks per calendar year (as prorated for partial years), which vacation may be
taken at such times as the Executive elects with due regard to the needs of the
Company. The Executive shall also be entitled to paid Holidays and
sick days in accordance with the policy of the Company. The carry-over of
vacation days shall be in accordance with the Company's policy applicable to
senior executives from time to time in effect.
(c) Business
and Entertainment Expenses. Upon presentation of appropriate
documentation, the Executive shall be reimbursed for all reasonable and
necessary business and entertainment expenses incurred in connection with the
performance of his duties hereunder, all in accordance with the Company's
expense reimbursement policy applicable to senior executives from time to time
in effect.
(d) Automobile
Allowance. Executive shall be entitled to an automobile allowance in the
amount of $500.00 per month during the term of this Agreement, which shall be
paid on the first day of each calendar month.
5. Termination. Executive’s
employment and the Employment Term shall terminate on the first of the following
to occur:
4
(a) Disability.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Term (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 9 of this Agreement of its intention to terminate the Executive
Employment. In such event, the Executive’s employment shall terminate effective
on the thirtieth (30th) day
following receipt of such notice by the Executive, provided that within 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of this Agreement,
"Disability" shall mean a determination by the Company in accordance
with applicable law that due to a physical or mental injury, infirmity or
incapacity, the Executive is unable to perform the essential functions of his
job with or without accommodation for 180 days (whether or not consecutive)
during any 12-month period.
(b) Death. The
Executive’s employment shall automatically terminate on the date of death of the
Executive during the Employment Term.
(c) Cause. The
Company may immediately terminate the Executive’s employment upon written notice
of termination by the Company to the Executive for Cause. "Cause" shall mean, as
determined by the Board (or its designee) (1) conduct by the Executive in
connection with his employment duties or responsibilities that is fraudulent,
unlawful or grossly negligent; (2) the willful misconduct of the Executive; (3)
the willful and continued failure of the Executive to perform the Executive's
duties with the Company (other than any such failure resulting from incapacity
due to physical or mental illness); (4) the commission by the Executive of any
felony or any crime involving moral turpitude; (5) violation of any material
policy of the Company or any material provision of the Company's code of
conduct, employee handbook or similar documents; or (6) any material breach by
the Executive of any provision of this Agreement or any other written agreement
entered into by the Executive with the Company.
(d) Termination other
than for Cause. The Company shall have the right to
terminate the Executive's employment hereunder for
any reason at any time, including for
any reason that does not constitute Cause, subject to
the consequences of such termination as set forth in this
Agreement.
(e) Resignation
for Good Reason. The Executive may voluntarily terminate his employment
hereunder for Good Reason on the 60th day after the delivery of a written notice
to the Company. For the purpose of this Agreement, “Good Reason” shall
mean:
5
(i) the
assignment of the Executive to a position in which the Executive’s authority,
duties and responsibilities are materially diminished from the authority, duties
or responsibilities as contemplated by Section 1 of this Agreement or any
other action taken by the Company or its affiliated companies which
results in a material , diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated and insubstantial
action not taken in bad faith and which is remedies by the Company promptly
after receipt of notice thereof given by the Executive;
(ii) any
failure by the Company or its affiliated companies to comply with any of the
provisions of Section 3 and 4 of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedies by the Company promptly after receipt of notice thereof given
by the Executive;
(iii) any
material change in the Executive's reporting responsibilities;
However,
in no event shall the Executive be considered to have terminated his employment
for "Good Reason" unless and until the Company receives written notice from the
Executive identifying in reasonable detail the acts or omissions constituting
"Good Reason" and the provision of this Agreement relied upon, and such acts or
omissions are not cured by the Company to the reasonable satisfaction of the
Executive within 30 days of the Company's receipt of such notice.
(f)
Resignation
other than for Good Reason. The Executive may voluntarily terminate his
employment hereunder for any reason other than Good Reason on the 60th day after
the delivery a written notice to the Company.
6. Consequences
of Termination.
(a) Disability. Upon
termination of the Employment Term because of the Executive's Disability, the
Company shall pay or provide to the Executive (1) any unpaid Base Salary and any
accrued vacation and holidays through the date of termination; (2) the Deferred
Salary set forth in Section 3.1 hereof earned and accrued as of the date of
termination; (3) any unpaid bonus accrued with respect to the fiscal year ending
on or preceding the date of termination; (4) reimbursement for any unreimbursed
expenses properly incurred through the date of termination; and (5) all other
payments or benefits to which the Executive may be entitled under the terms of
any applicable employee benefit plan, including medical benefits, program or
arrangement (collectively, the “Accrued Benefits”). In addition, all granted but
unvested Stock Awards, as well as any ungranted Stock Awards that would have
granted in the calendar year in which the Executive was terminated, shall become
immediately fully vested.
6
(b) Death. Upon
the termination of the Employment Term because of the Executive's death, the
Executive's estate shall be entitled to any Accrued Benefits. In addition, all
granted but unvested Stock Awards shall become immediately fully
vested.
(c) Termination
for Cause. Upon the termination of the Employment Term by the Company for
cause or by either party in connection with a failure to renew this Agreement,
the Company shall pay to the Executive any Accrued Benefits.
(d) Termination
without Cause. Upon the termination of the Employment Term by the Company
without Cause, the Company shall pay or provide to the Executive the Accrued
Benefits plus additional one (1) year of Base Salary, Stock Award and medical
benefits pursuant to Section 3 and 4 of
this Agreement.
(e)
Resignation
for Good Reason. In the event the Executive voluntarily terminates his
employment hereunder for Good Reason, the Company shall pay or
provide to the Executive the Accrued Benefits plus additional one (1) year of
Base Salary, Stock Award and medical benefits pursuant to Section 3 and 4 of
this Agreement.
(f)
Resignation
other than for Good Reason. In the
event the Executive voluntarily terminates his employment hereunder other than
for Good Reason, the Company shall pay or provide to the Executive any Accrued
Benefits.
7. Change
in Control. If In the event of a Change in Control, as defined
below, (i) the Company shall pay to the Executive the Deferred Salary set forth
in Section 3.1 and (ii) all Stock Awards set forth in Section 3(2) herein that
Executive would have been entitled to receive through the expiration of the
Employment Term, whether or not issued as of the date of the Change in
Control. Such Stock Award shall be fully vested as of the date of the
Change in Control.
7
For the
purpose of this Agreement, a “Change
in Control" shall be deemed to have occurred if, during the term of this
Agreement: (i) the beneficial ownership of at least 50% of the Company's voting
securities or all or substantially all of the assets of the Company shall have
been acquired, directly or indirectly by a single person or a group of
affiliated persons, other than the Executive or a group in which the Executive
is a member, or (ii) as the result of or in connection with any cash tender
offer, exchange offer, sale of assets, merger, consolidation or other business
combination of the Company with another corporation or entity and the new Board
is comprised of majority directors chosen or elected by the members of the
new/combined entity who were not members of the Company before such cash tender
offer, exchange offer, sale of assets, merger, consolidation or other business
combination of the Company with another corporation or entity.
8. No
Assignment.
This Agreement is personal to each of the Parties. Except as
provided below, no Party may assign or delegate any rights or obligations
hereunder without first obtaining the written consent of the other Party hereto;
provided,
however, that the Company may assign this Agreement to any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the
Company.
9. 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 (1) on the date of delivery if delivered by hand, (2) on the date of
transmission, if delivered by confirmed facsimile, (3) on the first business day
following the date of deposit if delivered by guaranteed overnight delivery
service, or (4) on the fourth business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the
Executive:
Mark A.
Giresi
750 Ocean
Royale Way, Unit 1203N
Juno
Beach, Florida 33408
8
If to the
Company:
NXT Nutritional Holdings,
Inc.
Attn.: Francis
McCarthy
56
Jackson Street
Holyoke,
MA 01040
Tel.:
(413) 533-9300
With a copy (which does
not constitute a notice) to:
Anslow & Jaclin,
LLP
195 Route 9 South, Suite
204
Manalapan, New Jersey,
07726
Attention: Kristina
Trauger, Esq.
Tel.:732-409-1212
Fax: (732)
577-1188
or to
such other address as either Party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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10.
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Protection
of the Company’s
Business.
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(a) Confidentiality.
The Executive acknowledges that during the course of his employment by the
Company (prior to and during the Employment Term) he has and will occupy a
position of trust and confidence. The Executive shall hold in a fiduciary
capacity for the benefit of the Company and shall not disclose to others or use,
whether directly or indirectly, any Confidential Information regarding the
Company, except (i) as in good faith deemed necessary by the Executive to
perform his duties hereunder, (ii) to enforce any rights or defend any claims
hereunder or under any other agreement to which the Executive is a party, provided
that such disclosure is relevant to the enforcement of such rights or
defense of such claims and is only disclosed in the formal proceedings related
thereto, (iii) when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with
jurisdiction to order him to divulge, disclose or make accessible such
information, provided
that the Executive shall give prompt written notice to the Company of
such requirement, disclose no more
9
information
than is so required, and cooperate with any attempts by the Company to obtain a
protective order or similar treatment, (iv) as to such Confidential Information
that shall have become public or known in the Company's industry other than by
the Executive's unauthorized disclosure, or (v) to the Executive's spouse,
attorney and/or his personal tax and financial advisors as reasonably necessary
or appropriate to advance the Executive's tax, financial and other personal
planning (each an "Exempt Person"), provided,
however, any disclosure or use of Confidential Information by an Exempt
Person shall be deemed to be a breach of this Section 10 by the Executive. The
Executive shall take all reasonable steps to safeguard the Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft. The Executive understands and agrees that the Executive shall
acquire no rights to any such Confidential Information. "Confidential
Information" shall mean information about the Company, its subsidiaries and
affiliates, and their respective clients and customers that is not disclosed by
the Company and that was learned by the Executive in the course of his
employment by the Company, including, but not limited to, any proprietary
knowledge, trade secrets, data and databases, formulae, sales, financial,
marketing, training and technical information, client, customer, supplier and
vendor lists, competitive strategies, computer programs and all papers, resumes,
and records (including computer records) of the documents containing such
Confidential Information.
(b) Non-Competition. During
the Employment Term and for the one-year period following the termination of the
Executive's employment for any reason (the "Restricted Period"), the Executive
shall not, directly or indirectly, without the prior written consent of the
Company, provide employment (including self-employment), directorship,
consultative or other services to any business, individual, partner, firm,
corporation, or other entity that competes with any business conducted by the
Company or any of its subsidiaries or affiliates on the date of the Executive's
termination of employment or within one year of the Executive's termination of
employment in the geographic locations where the Company and its subsidiaries or
affiliates engage or propose to engage in such business (the "Business").
Nothing herein shall prevent the Executive from having a passive ownership
interest of not more than 2% of the outstanding securities of any entity engaged
in the Business whose securities are traded on a national securities
exchange.
10
(c) Non-Solicitation
of Employees. The Executive recognizes that he possesses and will possess
confidential information about other employees of the Company and its
subsidiaries and affiliates relating to their education, experience, skills,
abilities, compensation and benefits, and inter-personal relationships with
customers of the Company and its subsidiaries and affiliates. The Executive
recognizes that the information he possesses and will possess about these other
employees is not generally known, is of substantial value to the Company and its
subsidiaries and affiliates in developing their business and in securing and
retaining customers, and has been and will be acquired by him because of his
business position with the Company. The Executive agrees that, during the
Restricted Period, he will not, directly or indirectly, (i) solicit or
recruit any employee of the Company or any of its subsidiaries or affiliates (a
"Current Employee") or any person who was an employee of the Company or any of
its subsidiaries or affiliates during the twelve (12) month period immediately
prior to the date the Executive's employment terminates (a "Former Employee")
for the purpose of being employed by him or any other entity, or (ii) hire any
Current Employee or Former Employee.
(d) Non-Solicitation
of Customers. The Executive agrees that, during the Restricted
Period, he will not, directly or indirectly, solicit or attempt to solicit (i)
any party who is a customer or client of the Company or its subsidiaries, who
was a customer or client of the Company or its subsidiaries at any time during
the twelve (12) month period immediately prior to the date the Executive's
employment terminates or who is a prospective customer or client that has been
identified and targeted by the Company or its subsidiaries for the purpose of
marketing, selling or providing to any such party any services or products
offered by or available from the Company or its subsidiaries, or (ii) any
supplier or vendor to the Company or any subsidiary to terminate, reduce or
alter negatively its relationship with the Company or any subsidiary or in any
manner interfere with any agreement or contract between the Company or any
subsidiary and such supplier or vendor.
(e) Property. The
Executive acknowledges that all originals and copies of materials, records and
documents generated by him or coming into his possession during his employment
by the Company or its subsidiaries are the sole property of the Company and its
subsidiaries ("Company Property"). During the Employment Term, and at
all times thereafter, the Executive shall not remove, or cause to be removed,
from the premises of the Company or its subsidiaries, copies of any record,
file, memorandum, document, computer related information or equipment, or any
other item relating to the business of the Company or its subsidiaries, except
in furtherance of his duties under this Agreement. When the Executive's
employment with the Company terminates, or upon request of the Company at any
time, the Executive shall promptly deliver to the Company all copies of Company
Property in his possession or control.
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(f) Non-Disparagement. Executive
shall not, and shall not induce others to, disparage the Company or its
subsidiaries or affiliates or their past and present officers, directors,
employees or products. "Disparage" shall mean making comments or statements to
the press, the Company's or its subsidiaries' or affiliates' employees or any
individual or entity with whom the Company or its subsidiaries or affiliates has
a business relationship which would adversely affect in any manner (1) the
business of the Company or its subsidiaries or affiliates (including any
products or business plans or prospects), or (2) the business reputation of the
Company or its subsidiaries or affiliates, or any of their products, or their
past or present officers, directors or employees.
(g) Cooperation.
Subject to the Executive's other reasonable business commitments, following the
Employment Term, the Executive shall be available to cooperate with the Company
and its outside counsel and provide information with regard to any past,
present, or future legal matters which relate to or arise out of the business
the Executive conducted on behalf of the Company and its subsidiaries and
affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Executive for any out-of-pocket expenses reasonably
incurred by the Executive in connection therewith.
(h) Equitable
Relief and Other Remedies. The Executive acknowledges and
agrees that the Company's remedies at law for a breach or threatened breach of
any of the provisions of this Section 10 would be inadequate and, in recognition
of this fact, the Executive agrees that, in the event of such a breach or
threatened or attempted breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
In addition, without limiting the Company's remedies for any breach of any
restriction on the Executive set forth in this Section 10, except as required by
law, the Executive shall not be entitled to any payments set forth in Section 6
hereof if the Executive has breached the covenants applicable to the Executive
contained in this Section 10, the Executive will immediately return to the
Company any such payments previously received under Section 6 upon such a
breach, and, in the event of such breach, the Company will have no obligation to
pay any of the amounts that remain payable by the Company under Section
6.
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(i) Reformation. If
it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 10 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that
state. The Executive acknowledges that the restrictive covenants
contained in this Section 10 are a condition of this Agreement and are
reasonable and valid in temporal scope and in all other
respects.
(j) Liability. Notwithstanding
the provisions in this Section 10, the Executive shall not be liable for any
mistakes of fact, errors of judgment, for losses sustained by the Company or any
subsidiary or for any acts or omissions of any kind, unless caused by the
negligence or willful or intentional misconduct of the Executive or any person
or entity acting for or on behalf of the Executive.
(k) Survival
of Provisions. The obligations contained in this Section 10 shall survive
in accordance with their terms the termination or expiration of the Executive's
employment with the Company and shall be fully enforceable
thereafter.
11. Indemnification. The
Executive shall be indemnified to the extent permitted by the Company's
organizational documents and to the extent allowed by law. The
Company shall continue to carry Director’s and Officer’s Liability Insurance in
accordance with that which has been approved by the Company’s Board in such
amounts and at limits no less than the current policy limits and amounts now in
effect.
12. Section
Headings and Interpretation. The
section headings used in this Agreement are included solely for convenience and
shall not affect, or be used in connection with, the interpretation of this
Agreement. Expressions of inclusion used in this agreement are to be understood
as being without limitation.
13. Severability. The
provisions of this Agreement shall be deemed severable and the invalidity of
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
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14. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
Agreement.
15. Governing
Law and Venue. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the state of Massachusetts
without regard to its conflicts of law principles. The Parties agree irrevocably
to submit to the exclusive jurisdiction of the courts located in the state of
Massachusetts, for the purposes of any suit, action or other proceeding brought
by any Party arising out of any breach of any of the provisions of this
Agreement and hereby waive, and agree not to assert by way of motion, as a
defense or otherwise, in any such suit, action, or proceeding, any claim that it
is not personally subject to the jurisdiction of the above-named courts, that
the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper, or that the provisions of
this Agreement may not be enforced in or by such courts.
16. Entire
Agreement.
This Agreement contains the entire agreement between the Parties with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, with respect thereto. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which is not expressly set forth in this
Agreement.
17. Waiver
and Amendment. No
provision of this Agreement may be modified, amended, waived or discharged
unless such waiver, modification, amendment or discharge is agreed to in writing
and signed by the Executive and such officer or director as may be designated by
the Board. No waiver by either Party at any time of any breach by the other
Party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other Party shall be deemed a waiver or
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
18. Withholding. The
Company may withhold from any and all amounts payable under this Agreement such
federal, state, local and foreign taxes as may be required to be withheld
pursuant to any applicable law or regulation.
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19. Authority
and Non-Contravention. The Executive represents and warrants to the
Company that he has the legal right to enter into this Agreement and to perform
all of the obligations on his part to be performed hereunder in accordance with
its terms and that he is not a party to any agreement or understanding, written
or oral, which could prevent him from entering into this Agreement or performing
all of his obligations hereunder.
20. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
NXT
NUTRITIONAL HOLDINGS, INC.
/s/
Francis
McCarthy
By: Francis
McCarthy
Title:
Chief Executive Officer
EXECUTIVE
/s/
Mark A.
Giresi
By: Mark
A. Giresi
15
Exhibit
A
(List of
Companies)
|
1.
|
UFood
Grill – Restaurant and Franchise
Business
|
|
2.
|
Fiduciary
Trust International of the South – Money management
firm
|
|
3.
|
Solais
– Design and marketer of lighting
|
|
4.
|
Innovative
Beverage Group Holdings – Beverage manufacturer and
marketer
|
16