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 28th day of May, 2007 effective for the term provided
herein, by and between
Reliv'
International, Inc.
,
a
Delaware corporation (the "Company") and
Robert
L. Montgomery
(hereinafter referred to as the "Executive").
WHEREAS
,
the
Executive is presently, and for some time has been, employed as Chief Executive
Officer of the Company and has been instrumental in the management and success
of the Company;
WHEREAS
,
the
Company desires to be assured of the continued association and services of
Executive and Executive desires to continue in the employment of the Company
on
the terms provided herein.
NOW,
THEREFORE
,
in
consideration of 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 Executive and Executive hereby accepts employment
by the
Company on the terms, covenants and conditions herein contained.
1.2
The
Executive is hereby employed by the Company as Chief Executive Officer and
President. The Executive shall have such duties, responsibilities and authority
as the by-laws of the Company shall from time to time provide and as the
Board
of Directors of the Company shall from time to time prescribe in
writing.
1.3
During
the term of Executive's employment hereunder, and subject to the other
provisions hereof, Executive 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. During the term of his
employment hereunder, Executive shall not perform any services for compensation
for any person, firm, partnership, company or corporation other than the
Company
without the express written consent of the Board of Directors of the
Company.
2.
Compensation
and Benefits
.
2.1
Base
Salary
.
2.1.1
The
Company shall pay to Executive during the initial term of employment hereunder
and each renewal term a basic salary at an annual rate to be determined by
the
Board of Directors of the Company but not less than the amount of $600,000.
Such
basic salary shall be paid by the Company to Executive each month, less amounts
which the Company may be required to withhold from such payments by applicable
federal, state or local laws or regulations.
2.1.2
If
the
Executive shall be absent from work on account of personal injuries or sickness,
he shall continue to receive the payments provided for in paragraph 2.1.1
hereof; provided, however, that any such payment may, at the Company's option,
be reduced by the amount which the Executive may receive, for the period
covered
by any such payments, in disability payments (i) pursuant to any disability
insurance which the Company, in its sole discretion, may maintain, or (ii)
under
any governmental program for disability compensation.
2.1.3
The
Company agrees that the rate of the basic salary of the Executive hereunder
shall be reviewed annually by the Board of Directors or such committee of
the
Board of Directors designated by it to review such matters and that the rate
of
the basic salary shall be determined and adjusted for each year during the
term
of Executive's employment hereunder by the Board of Directors or such committee
commensurate with (i) the performance of Executive, (ii) the net income of
the
Company during the preceding fiscal year and as projected for the fiscal
year
for which the basic salary determination is made, (iii) comparable rates
of
compensation for executives and (iv) such other factors as the Board of
Directors or such committee may deem relevant to the determination.
2.2
Additional
Compensation
.
2.2.1
Executive
shall be a participant in the Company's Incentive Compensation Plan adopted
by
the Board of Directors of the Company in 2007, as amended from time to time,
and
any other incentive compensation or executive bonus plan which the Company
may
adopt or which shall be in effect at any time during the term hereof.
2.2.2
The
Company has adopted a Stock Option Plan and Executive shall participate in
stock
options issued to executives of the Company pursuant to such Plan, or such
other
stock options or bonus plans as the Company may adopt from time to time,
in such
amounts and on such terms as the Board of Directors of the Company shall
from
time to time determine.
2.3
Benefits;
Expense Reimbursement
.
2.3.1
The
Executive shall be entitled to, and shall receive, all other benefits of
employment available to other executives of the Company generally, including,
without limitation, participation in any hospital, surgical, medical or other
group health plans or accident benefits, life insurance benefits, pension
or
profit-sharing plans, bonus plans, 401(k) Plan, Employee Stock Ownership
Plan or
vacation plans as shall be instituted by the Company, in its sole
discretion.
2.3.2
During
the term hereof, the Company shall reimburse Executive for all reasonable
and
necessary expenses incurred by Executive 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 Board of Directors of the Company may from time to time
establish. Executive 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.
2.3.3
The
Company shall pay or reimburse Executive for legal and accounting fees relating
to succession planning and annual financial planning fees as may be incurred
by
Executive and approved by the Audit Committee of the Company.
2.3.4
The
Company shall provide to Executive the use of an automobile.
2.4
Reduced
Services and Compensation
.
2.4.1
At
the
election of Executive at any time during the term hereof after Executive
shall
have attained the age of 65, Executive shall be entitled to elect to continue
employment with the Company hereunder at a reduced level of service in
accordance with the provisions of this paragraph.
2.4.2
Executive
shall make the election by written notice to the Company. The terms of this
paragraph shall become applicable and effective on the first day of the month
immediately following the month in which such notice is given and shall remain
effective until termination of this Agreement or the election of Executive
pursuant to paragraph 5 hereof.
2.4.3
During
the period that the election of Executive pursuant to this paragraph shall
be
effective:
(a)
Executive
shall continue as an employee of the Company for the remaining term or renewal
terms of this Agreement;
(b)
Executive's
obligation to perform services for the Company shall be at the rate of
approximately 85 hours per month. The time of performance of services shall
be
within the discretion of Executive and in accordance with such arrangements
as
Executive and the Company shall determine and shall include reduced levels
of
travel and attendance at regional and international conferences.
(c)
Executive's
title and duties shall be modified as Executive and the Company shall agree,
provided that Executive shall remain Chief Executive Officer of the Company
and
shall retain duties and authority consistent with such position.
(d)
Executive's
compensation shall be adjusted consistent with the reduction in his service.
Executive's rate of base salary shall be adjusted to an amount equal to one-half
of the annual rate of base salary in effect at the time of Executive's election
pursuant to this paragraph, subject to modification in accordance with the
provisions of paragraph 2.1.3 hereof and his participation level in the Company
Incentive Compensation Plan shall be reduced by 25%. Executive shall continue
to
be entitled to all additional benefits as provided in paragraphs 2.2.1 and
2.3.1
hereof.
(e)
The
provisions of this paragraph shall control and shall supersede any conflicting
provisions of this Agreement. Except as modified by the provisions of this
paragraph, all provisions of this Agreement shall remain in full force and
effect.
3.
Term
.
The
employment of Executive hereunder shall be for a term commencing on January
1,
2007 and expiring on December 31, 2009. Upon the expiration of the initial
term
or any renewal term of Executive's employment hereunder, the term of such
employment automatically shall be renewed for an additional term of one year
commencing on January 1 and expiring on the succeeding December 31 unless
Executive or the Company shall give notice of the termination of Executive's
employment and this Agreement by written notice to the other more than 120
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, subject to any accrued
rights of Executive to incentive or other compensation, including without
limitation pursuant to the provisions of paragraph 5 hereof, this Agreement
shall terminate on the date of expiration of such initial or renewal term.
4.
Termination
.
4.1
The
Company shall be entitled to terminate this Agreement prior to the expiration
of
its term or any renewal term on the occurrence of either:
4.1.1
an
event
of default with respect to Executive as provided herein, or
4.1.2
the
permanent mental or physical disability of Executive as provided herein
occurring during the term or any renewal term of Executive's employment
hereunder.
4.2
For
purposes of this Agreement, an event of default with respect to Executive
shall
include:
4.2.1
Any
failure by Executive 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 Executive to cure such failure within
10
days after written notice thereof shall have been given to Executive by the
Company; or
4.2.2
Commission
by Executive 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.
4.3
Permanent
mental or physical disability of Executive shall be deemed to have occurred
hereunder when Executive shall have failed or been unable to perform his
duties
hereunder on a full-time basis for an aggregate of 180 days in any one period
of
210 consecutive days and with a certification from a licensed physician in
the
State of Missouri that Executive is permanently disabled from performing
his
duties hereunder.
4.4
Executive
shall be entitled to terminate his employment with the Company under this
Agreement prior to the expiration of its term upon the occurrence of an event
of
default with respect to the Company.
4.5
For
purposes of this Agreement an event of default with respect to the Company
shall
include:
4.5.1
Any
failure by the Company to perform its obligations to Executive under this
Agreement and (if such failure can be cured) the failure by the Company to
cure
such failure within 10 days after written notice thereof shall have been
given
to the Company by Executive;
4.5.2
The
Company shall:
(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,
(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.
4.6
In
the
event of termination of this Agreement and Executive's employment hereunder
by
the Company pursuant to paragraph 4.1 hereof, all rights and obligations
of the
Company and Executive hereunder shall terminate on the date of such termination,
subject to the following:
4.6.1
Executive
shall be entitled 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 and the obligation of
the
Company for the payment of salary, additional compensation or benefits shall
terminate as at the date of such termination;
4.6.2
All
rights of the Company or Executive which shall have accrued hereunder prior
to
the date of such termination, and all provisions of this Agreement provided
herein to survive termination of employment of Executive hereunder, shall
survive such termination and the Company and Executive shall continue to
be
bound by such provisions in accordance with the terms thereof;
4.7
In
the
event of termination of the Agreement by Executive in accordance with paragraph
4.4 hereof, all rights and obligations of the Company and Executive hereunder
shall terminate on the date of such termination, subject to the
following:
4.7.1
Executive
shall be entitled to receive all salary, additional compensation and benefits
which shall have accrued prior to the date of such termination and the Company's
obligation for the payment of salary, additional compensation and benefits
shall
terminate as of the date of such termination;
4.7.2
All
rights of the Company or Executive which shall have accrued hereunder prior
to
the date of such termination and the obligations of Executive pursuant to
paragraphs 6, 7 and 8 provided herein to survive termination of employment
of
Executive hereunder shall survive such termination and the Executive shall
continue to be bound by such provisions in accordance with their
terms.
4.8
This
Agreement and all rights and obligations of the parties hereunder shall
terminate immediately upon the death of Executive except that the Company
shall
pay to the heirs, legatees or personal representative of Executive (i) all
compensation or benefits hereunder accrued but not paid to the date of
Executive's death, (ii) all amounts which may become due pursuant to any
compensation program providing for payments to the beneficiaries of Executive
upon his death and (iii) an amount equal to the total compensation which
would
have been payable to Executive hereunder, but for his death, for a period
of six
months from the date of his death.
5.
Consultation
Period
.
5.1
The
Executive may at any time during the term of this Agreement and after the
Executive has attained the age of 65 deliver to the Company a notice in writing
to the effect that the active employment of Executive with the Company is
to
terminate as of the first day of the calendar month next following the date
on
which the notice is delivered, or as of the first day of any specified calendar
month thereafter. The active employment of Executive hereunder shall terminate
on the date so specified and then from and after such termination date and
for a
period of 180 months (the "Consultation Period"), he shall serve as a consultant
to the Company with respect to such business matters and at such time or
times
as the Company may reasonably request up to 40 hours per month. However,
Executive shall not be required to undertake any assignment inconsistent
with
the dignity, importance, and scope of his prior position or with his physical
and mental health at the time. Moreover, while it is the intent of this
Agreement that the mutual convenience of the parties be served, it is understood
that Executive shall act during the Consultation Period in the capacity of
an
independent contractor and shall not be subject to the direction, control,
or
supervision of the Company with respect to the time spent, research undertaken,
or procedures followed in the performance of his consulting services hereunder.
In particular, Executive will not be required without his consent to undertake
any assignment which would require him to leave his city of residence at
the
time for purposes of such consultation. During the Consultation Period, the
Company shall pay to Executive the Consulting Compensation (as defined in
paragraph 5.2 below). Executive shall have no right to receive Additional
Compensation as provided in paragraph 2.2 or Benefits as provided in paragraph
2.3 during the Consultation Period; provided that Executive shall be entitled
to
receive reimbursement for expenses as provided in paragraph 2.3.2 and health
insurance premiums.. Upon the termination of his active employment hereunder,
and again upon expiration of the Consultation Period, Executive or his estate
shall deliver to the Company all original files then in his or its possession
pertaining to the business of the Company.
5.2
Executive's
Consulting Compensation shall consist of the Base Amount and the Supplemental
Amount determined and paid on a monthly basis during the term of the
Consultation Period. The "Base Amount" shall be the amount set forth on Schedule
A hereto determined on the basis of the age of Executive on the date Executive
shall elect to terminate his employment with the Company and commence the
Consultation Period in accordance with paragraph 5.1 hereof. The "Supplemental
Amount" shall be, initially, an annual rate of compensation equal to 30%
of the
average annual rate of compensation paid to Executive by the Company in the
form
of salary and bonuses (but excluding all other payments made to or for his
benefit and any reimbursement of expenses) during the five complete fiscal
years
of the Company immediately preceding the earlier of (a) his election pursuant
to
paragraph 5.1 hereof to terminate his employment and commence the Consultation
Period or (b) his election to continue employment at a reduced rate of service
pursuant to paragraph 2.4 hereof. Effective on the July 1 first occurring
more
than six months from the date of the election of Executive pursuant to paragraph
5.1 hereof and on each July 1 thereafter during each year during the
Consultation Period and for the twelve months ending the following June 30,
payments of the Supplemental Amount shall be increased or decreased, as the
case
may be, by the percentage change in the Consumer Price Index- U.S. City Average
from that published for the month of June preceding the date of Executive's
termination of employment as compared with that published for the month of
June
immediately preceding such July 1. No Consulting Compensation payable hereunder
shall be deemed salary or other compensation to Executive for the purpose
of
computing benefits to which Executive may be entitled under any pension or
profit-sharing plan or other arrangement of the Company for the benefit of
its
employees, nor shall anything contained herein affect any rights or obligations
which Executive may now have under any such plan or arrangement.
5.3
All
payments of the consulting fees hereundere shall be paid in cash from the
general funds of the Company and no special or separate fund shall be
established and no other segregation of assets shall be made to assure the
payment of such Deferred Compensation Benefit. Executive shall have no right,
title, or interest whatever in or to any investments which the Company may
make
to aid it in meeting its obligation hereunder. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or
be
construed to create a trust of any kind, or a fiduciary relationship, between
the Company and Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company, such right shall be
no
greater than the right of an unsecured creditor.
5.4
The
Company may terminate the Consultation Period and its obligation to make
payments of the Deferred Compensation Benefit upon the occurrence of an event
of
default with respect to Executive as specified in Section 4.2.2 or upon breach
by Executive of its continuing obligations under paragraphs 6, 7, 8 or 9
of this
Agreement.
5.5
During the term of the employment of Executive hereunder and Consultation
Period, the Company shall be entitled to use the name and likeness of Executive,
and to reproduce, copy and disseminate, video and audio recordings of Executive,
without additional charge or payment to Executive, in connection with
promotional materials and activities of the Company. From and after the date
of
the expiration of the Term of this Agreement or the Consultation Term, or
of the
earlier termination of this Agreement in accordance with Paragraph 5 hereof,
the
Company shall be entitled to use the name and likeness of Executive, and
to
reproduce, copy and disseminate, video and audio recordings of Executive;
provided, however, that for each calender year during which the Company shall
so
utilize such items, the Company shall pay to Executive, or to his heirs,
representatives, or assigns a fee in the amount of $10,000. The right of
the
Company provided herein shall survive the expiration of the term of this
Agreement, or its termination, for any reason, for a period of 20
years.
6.
Confidential
Information
.
6.1
"Confidential
Information" means information disclosed by the Company to Executive, or
developed or obtained by Executive during his employment by the Company,
either
before the date or during the term of this Agreement, or during the Consultation
Period, provided that such information is not generally known in the business
and industry in which the Company is or may subsequently become engaged,
relating to or concerning the business, projects, products, processes, formulas,
know-how, techniques, designs or methods of the Company, whether relating
to
research, development, manufacture, purchasing, accounting, engineering,
marketing, merchandising, selling or otherwise. Without limitation, Confidential
Information shall include all know-how, technical information, inventions,
ideas, concepts, processes and designs relating to products of the Company,
whether now existing or hereafter developed, and all prices, customer or
distributor names, customer or distributor lists, marketing and other
relationships, whether contractual or not, between the Company, its suppliers,
customers, distributors, employees, agents, consultants and independent
contractors but shall exclude the names of customers or distributors known
to
Executive prior to the effective date hereof.
6.2
Executive
agrees that, during the term hereof or while Executive shall receive
compensation hereunder and after termination of his employment with the Company
for so long as the Confidential Information shall not be generally known
or
generally disclosed (except by Executive or by means of wrongful use or
disclosure), Executive shall not use any Confidential Information, except
on
behalf of the Company, or disclose any Confidential Information to any person,
firm, partnership, company, corporation or other entity, except as authorized
by
the President or the Board of Directors of the Company.
7.
Inventions
.
7.1
"Inventions"
shall mean discoveries, concepts, ideas, designs, methods, formulas, know-how,
techniques or any improvements thereon, whether patentable or not, made,
conceived or developed, in whole or in part, by Executive.
7.2
Executive
covenants and agrees to communicate and fully disclose to the Board of Directors
of the Company any and all Inventions made or conceived by him during the
term
hereof or while receiving any compensation or payment from the Company and
further agrees that any and all such Inventions which he may conceive or
make,
during the term hereof or while receiving any compensation or payments from
the
Company, shall be at all times and for all purposes regarded as acquired
and
held by him in a fiduciary capacity and solely for the benefit of the Company
and shall be the sole and exclusive property of the Company. The provisions
of
this subparagraph shall not apply to an invention for which no equipment,
supplies, facilities or trade secret information of the Company was used
and
which was developed entirely on the Executive's own time, unless (a) the
invention relates (i) to the business of the Company, or (ii) to the Company's
actual or demonstrably anticipated research or development, or (b) the invention
relates from any work performed by Executive for the Company.
7.3
Executive
also covenants and agrees that he will assist the Company in every proper
way
upon request to obtain for its benefit patents for any and all inventions
referred to in paragraph 7.2 hereof in any and all countries. All such patents
and patent applications are to be, and remain, the exclusive property of
the
Company for the full term thereof and to that end, the Executive covenants
and
agrees that he will, whenever so requested by the Company or its duly authorized
agent, make, execute and deliver to the Company, its successors, assigns
or
nominees, without charge to the Company, any all applications, applications
for
divisions, renewals, reissues, specifications, oaths, assignments and all
other
instruments which the Company shall deem necessary or appropriate in order
to
apply for and obtain patents of the United States or foreign countries for
any
and all Inventions referred to in paragraph 7.2 hereof or in order to assign
and
convey to the Company, its successors, assigns or nominees, the sole and
exclusive right, title and interest in and to such Inventions, applications
or
patents. Executive likewise covenants and agrees that his obligations to
execute
any such instruments or papers shall continue after the expiration or
termination of this Agreement with respect to any and all such Inventions,
and
such obligations shall be binding upon his heirs, executors, assigns,
administrators or other legal representatives.
8.
Writings
and Working Papers
.
Executive
covenants and agrees that any and all books, textbooks, letters, pamphlets,
drafts, memoranda or other writings of any kind written by him for or on
behalf
of the Company or in the performance of Executive's duties hereunder,
Confidential Information referred to in paragraph 6.1 hereof and all notes,
records and drawings made or kept by him of work performed in connection
with
his employment by the Company shall be and are the sole and exclusive property
of the Company and the Company shall be entitled to any and all copyrights
thereon or other rights relating thereto. Executive agrees to execute any
and
all documents or papers of any nature which the Company or its successors,
assigns or nominees deem necessary or appropriate to acquire, enhance, protect,
perfect, assign, sell or transfer its rights under this paragraph. Executive
also agrees that upon request he will place all such notes, records and drawings
in the Company's possession and will not take with him without the written
consent of the Board of Directors of the Company any notes, records, drawings,
blueprints or other reproductions relating or pertaining to or connected
with
his employment of the business, books, textbooks, pamphlets, documents work
or
investigations of the Company. The obligations of this paragraph shall survive
the term of employment hereunder or the termination or expiration of the
term or
any renewal term hereof or the term or termination of the Consultation
Period.
9.
Covenant
Not to Compete
.
9.1
For
purposes of this paragraph:
9.1.1
"Conflicting
Organization" means any person, firm, company, partnership, business,
corporation or other entity engaged in, or intending to engage in, research,
development, production, marketing or selling a Conflicting
Product.
9.1.2
"Conflicting
Product" means any product, process, service or design which competes with,
or
is reasonably interchangeable as a substitute for, any product, process,
service
or design developed, planned, under development, produced marketed or sold
by
the Company or any Affiliate during the term of the covenant in this paragraph
9. Without limitation, Conflicting Product includes any food product or
nutritional supplement or product, or skin care product, which is marketed
or
sold, or intended to be marketed or sold, by direct or multilevel
sales.
9.1.3
"Territory"
means the geographic area within which the Company or any Affiliate or any
distributor or representative of the Company or any Affiliate is actively
engaged in the sale of, or efforts to sell, the products of the Company or
any
Affiliate at any time during the term of this Agreement.
9.1.4
"Affiliate"
shall mean any corporation of which the Company, or any Affiliate, shall
own in
excess of 20% of the capital stock.
9.2
Executive
acknowledges and agrees as follows:
9.2.1
That
the
Company and its Affiliates have developed, and are developing and establishing,
a valuable and extensive trade in its services and products, including without
limitation, nutritional, food and dietary products, and skin care products
and
that they have developed, and are developing, operations and distributors
to
sell such products and services throughout the United States and in foreign
countries.
9.2.2
That
the
Company and its Affiliates have developed, and are developing, at great expense,
technical information concerning their products and methods of marketing
and
sale which are kept and protected as Confidential Information and trade secrets
and are of great value to the Company and its Affiliates.
9.2.3
That,
during the course of his employment with the Company or an Affiliate and
during
the term of this Agreement, Executive has participated, and will participate,
in
such matters and has acquired and will acquire, possession of Confidential
Information, and that Executive has had significant responsibility for the
development activities of the Company and the development of unique products,
methods and techniques of the Company and its Affiliates.
9.2.4
That,
for
Executive to utilize Confidential Information of the Company and its Affiliates,
or unique skills, techniques or information developed by him while an employee
of the Company or its Affiliates or during the term of this Agreement for
a
Conflicting Organization within the area or time provided herein would result
in
material and irreparable injury to the Company.
9.2.5
That
the
area and conduct covered by the restrictive covenant in this paragraph includes
only a percentage of the total number of organizations and individuals who
are
customers or distributors or potential customer or distributors for products,
processes or services with respect to which Executive has knowledge or
expertise, that Executive would be able to utilize his knowledge, experience
and
expertise for an employer while fully complying with the terms of this paragraph
and that the terms and conditions of this paragraph are reasonable and necessary
for the protection of the Company's business and assets.
9.3
Executive
agrees that, during the term of this Agreement, during the term of the
Consultation Period, for so long as Executive shall be receiving compensation
hereunder, and for a period of 36 months from and after the date of termination
of this Agreement (other than by Executive pursuant to paragraph 4.4 hereof),
he
will not, anywhere within the Territory, directly or indirectly, whether
as an
employee, agent, officer, consultant, partner, owner, shareholder or
otherwise:
9.3.1
solicit,
or enter into any arrangement or agreement with, or participate with, provide
services to, or be employed by any person, company, partnership, business
or
corporation which shall solicit, or enter into any arrangement with, any
person
who is, or at any time during the term of this Agreement has been, a distributor
for the Company or any Affiliate, to become a distributor for a Conflicting
Organization or for any organization engaged in the direct or multilevel
sale of
any product or service;
9.3.2
solicit
for the sale of, or participate with, provide services to, or be employed
by any
person, company, partnership, business or corporation which shall solicit
for
the sale of, any Conflicting Product by a Conflicting Organization to any
person
who has been, during the term hereof, a customer of the Company or any
Affiliate; and
9.3.3
engage
or
participate in, be employed by, or provide services or assistance to, any
Conflicting Organization.
10.
Specific
Enforcement
.
Executive
is obligated under this Agreement to render service of a special, unique,
unusual, extraordinary and intellectual character, thereby giving this Agreement
peculiar value so that the loss of such service or violation by Executive
of
this Agreement could not reasonably or adequately be compensated in damages
in
an action at law. Therefore, in addition to other remedies provided by law,
the
Company shall have the right during the term or any renewal term of this
Agreement (or thereafter with respect o obligations continuing after the
expiration or termination of this Agreement) to compel specific performance
hereof by Executive or to obtain injunctive relief against violations hereof
by
Executive, and if the Company prevails in any proceeding therefor, it will
also
be entitled to recover all costs and expenses incurred by the Company in
connection therewith, including attorneys' fees.
11.
Assignment
.
The
rights and duties of a party hereunder shall not be assignable by that party,
except that the Company may assign this Agreement and all rights and obligations
hereunder to, and may require the assumption thereof by, any corporation
or any
other business entity which succeeds to all or substantially all the business
of
the Company through merger, consolidation or corporate reorganization or
by
acquisition of all or substantially all of the assets of the
Company.
12.
Binding
Effect
.
This
Agreement shall be binding upon the parties hereto and their respective
successors in interest, heirs and personal representatives and, to the extent
permitted herein, the assigns of the Company.
13.
Severability
.
If
any
provision of this Agreement or any part hereof or application hereof to any
person or circumstance shall be finally determined by a court of competent
jurisdiction to be invalid or unenforceable to any extent, the remainder
of this
Agreement, or the remainder of such provision or the application of such
provision to persons or circumstances other than those as to which it has
been
held invalid or unenforceable, shall not be affected thereby and each provision
of this Agreement shall remain in full force and effect to the fullest extent
permitted by law. The parties also agree that, if any portion of this Agreement,
or any part hereof or application hereof, to any person or circumstance shall
be
finally determined by a court of competent jurisdiction to be invalid or
unenforceable to any extent, any court may so modify the objectionable provision
so as to make it valid, reasonable and enforceable.
14.
Notices
.
All
notices, or other communications required or permitted to be given hereunder
shall be in writing and shall be delivered personally or mailed, certified
mail,
return receipt requested, postage prepaid, to the parties as
follows:
|
If to the Company:
|
Board
of Directors
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|
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Reliv'
International, Inc.
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|
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P.
O. Box 405
|
|
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Chesterfield,
MO 63006-0405
|
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If to Executive:
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Robert L. Montgomery
|
|
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17945 Wild Horse Creek
Road
|
|
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Chesterfield, MO
63005
|
Any
notice mailed in accordance with the terms hereof shall be deemed received
on
the third day following the date of mailing. Either party may change the
address
to which notices to such party may be given hereunder by serving a proper
notice
of such change of address to the other party.
15.
Entire
Agreement
.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior written or
oral
negotiations, representations, agreements, commitments, contracts or
understandings with respect thereto and no modification, alteration or amendment
to this Agreement may be made unless the same shall be in writing and signed
by
both of the parties hereto.
16.
Waivers
.
No
failure by either party to exercise any of such party's rights hereunder
or to
insist upon strict compliance with respect to any obligation hereunder, and
no
custom or practice of the parties at variance with the terms hereof, shall
constitute a waiver by either party to demand exact compliance with the terms
hereof. Waiver by either party of any particular default by the other party
shall not affect or impair such party's rights in respect to any subsequent
default of the same or a different nature, nor shall any delay or omission
of
either party to exercise any rights arising from any default by the other
party
affect or impair such party's rights as to such default or any subsequent
default.
17.
Governing
Law; Jurisdiction
.
17.1
For
purposes of construction, interpretation and enforcement, this Agreement
shall
be deemed to have been entered into under the laws of the State of Missouri
and
its validity, effect, performance, interpretation, construction and enforcement
shall be governed by and subject to the laws of the State of
Missouri.
17.2
Any
and
all suits for any and every breach of this Agreement may be instituted and
maintained in any court of competent jurisdiction in the State of Missouri
and
the parties hereto consent to the jurisdiction and venue in such court and
the
service of process by certified mail to the addresses for the parties provided
for notices herein.
IN
WITNESS WHEREOF
,
the
parties hereto have executed this Agreement as of the day and year first
above
written.
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|
|
|
|
|
RELIV
INTERNATIONAL, INC.
|
|
|
|
|
|
By:
|
/s/ Stephen
M. Merrick
|
|
|
Authorized
Officer
|
|
|
|
|
|
|
|
Attest:
|
|
|
|
|
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/s/ Brett M. Hastings
|
|
|
Secretary
|
|
|
|
|
|
|
|
EXECUTIVE:
|
|
|
|
|
|
/s/
|
Robert
L.
Montgomery
|
|
|
Robert
L. Montgomery
|