EXHIBIT 10.11
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
August 7, 1998
▇▇. ▇▇▇▇ A. Love
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇▇▇:
This letter sets forth our agreement concerning the arrangements to govern
your termination of employment at ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("MotherNature"). You
have played a significant role at MotherNature and we are appreciative of your
contributions.
1. (a) From and after August 7, 1998 (the "Termination Date") you shall
cease to serve as an active employee, but you will receive salary continuation
at the rate of $70,000.00 per year (the "Salary Continuation") through May 31,
2000 (the "Continuation Period"). All such amounts described in the preceding
sentence will be payable in connection with the normal MotherNature payroll as
presently in effect, and are subject to applicable federal and state
withholding, payroll and other taxes. All Salary Continuation payments will be
made to an account or address designated by Employee.
(b) Subject to your continued compliance with the provisions of
Section 7 below, MotherNature hereby agrees to forgive your repayment of the
$21,100 in loans and/or advances extended to you by MotherNature on or before
August 7, 1998, at the rate of $3,550 per month commencing on September 1, 1998
and continuing monthly thereafter until the active balance is forgiven. Failure
to comply with the provisions of Section 7 below prior to the complete
forgiveness of such loans will result in the balance of the loans and/or
advances being deducted from your Salary Continuation.
(c) You have agreed to move out of the apartment currently rented by
the Company in Waltham, MA; and, MotherNature agrees to pay your relocation
expenses up to but not exceeding $3,000 associated with your relocation to
Florida.
2. You hereby confirm your resignation as VP Marketing, Secretary and as
Director of MotherNature effective on or before August 7, 1998 and agree to
irrevocably waive and terminate any and all rights granted to you under Section
5.01(k) of the Series A Convertible Preferred Stock Purchase Agreement dated
June 10, 1998 by and between MotherNature and the certain Purchasers named in
Exhibit 1.01A thereto (the "Purchase Agreement"), including your right to attend
each meeting of the Board of Directors of MotherNature and each meeting of any
committee thereof. You further agree that you shall not in the future seek
election or agree to serve as a director of MotherNature.
3. You hereby irrevocably waive and rescind any and all right to purchase
shares of MotherNature's Series A Convertible Preferred Stock. Accordingly,
MotherNature shall cancel and return the Promissory Note in the amount of
$53,334.90 dated July 15, 1998 between you and MotherNature, and you shall not
be deemed to be (or have been) a Purchaser under the Purchase Agreement for any
purpose.
4. No later than September 15, 1998, you will return to MotherNature any
keys, credit cards or other items that you might have in your possession that
are the property of MotherNature. In addition, on or before such date, you will
return all company files, reports, books, data, memoranda, manuals, diskettes,
business or marketing plans, reports, projections, computer equipment and
software programs, and all other MotherNature information or property held by
you or under your control. You agree not to use any of the foregoing
MotherNature materials from and after September 15, 1998. Notwithstanding the
foregoing, you shall be entitled to keep the notebook computer provided to you
by MotherNature and to purchase for $200.00 the laser printer, provided to you
by MotherNature, which is located at your Waltham apartment. .
5. (a) In exchange for the compensation described in Paragraph 1, and
MotherNature's compliance with its obligations set forth in this agreement, and
other good and valuable consideration, receipt of which is hereby acknowledged,
you hereby agree that, except to the extent of the obligations undertaken by
MotherNature herein, you, your representatives, agents, estate, successors and
assigns, release and forever discharge MotherNature and/or its successors,
assigns, directors, shareholders, officers, employees and/or agents, both
individually and in their official capacities with the company, from any and all
actions or causes of action, suits, claims, complaints, contracts, liabilities,
agreements, promises, debts and damages, whether existing or contingent, known
or unknown, which arise out of your employment with or your termination of
employment from MotherNature. This release is intended by you to be all
encompassing and to act, except to the extent of the obligations undertaken by
MotherNature herein, as a full and total release of any claims that you may have
or have had against MotherNature, its successors, assigns, officers, employees
and/or agents, both individually and in their official capacity with the company
which arise out of your employment with or your termination of employment from
MotherNature, including, but not limited to, any federal or state law or
regulation dealing with either employment or employment discrimination such as
those laws or regulations concerning discrimination on the basis of age, race,
color, religion, creed, sex, sexual preference, national origin, disability, or
status as a disabled or Vietnam era veteran; any contract, whether oral or
written, express or implied; or common law.
(b) You agree not only to release and discharge MotherNature, its
subsidiaries and/or their respective successors, assigns, stockholders,
officers, directors, employees and agents from any and all claims as stated
above that you could make on your own behalf or on behalf of others, but also
those claims which might be made by any other person or organization on behalf
of you, and you specifically waive any right to become, and promise not to
become, a member of any class in a case in which claim or claims against
MotherNature, its subsidiaries and/or their respective successors, assigns,
stockholders, officers, directors, employees and/or agents are made involving
any matters which arise out of your employment with or termination from
MotherNature, or in any manner related to your ownership (prior to the date
hereof) of
MotherNature stock. You agree that once MotherNature has made the payments
specified in Paragraph 1, MotherNature will have satisfied any and all legal
and/or contractual obligations to you. Nothing in this letter agreement is to be
construed as an admission by MotherNature, its subsidiaries and/or their
successors, assigns, or their respective stockholders, officers, directors,
employees or agents of any liability or unlawful conduct whatsoever.
6. You agree and acknowledge the payments and benefits set forth in this
letter, together with payments and benefits previously provided to you by
MotherNature, are the only payments and benefits you will receive in connection
with your employment or its termination. With respect to your Incentive Stock
Option Agreements, you agree that your Incentive Stock Option Agreement dated as
of July 15, 1998 for 955,000 shares of Common Stock of MotherNature shall
terminate unexercised as of the date hereof. With respect to your Incentive
Stock Option Agreement dated as of June 10, 1998 for 255,000 shares of Common
Stock of MotherNature ("ISO No. 1"), you agree pursuant to the terms of Section
4(a) of ISO No. 1 your option to purchase up to 116,888 shares of Common Stock
is deemed vested and exercisable as of the date hereof; and, to the extent not
previously exercised, your option to purchase such shares will terminate (and
may no longer be exercised) effective three (3) months following from the date
hereof. It is understood and agreed that you shall be responsible for any
federal and state income tax consequences to you arising out of the exercise of
any such stock options and/or the sale or disposition of the underlying Common
Stock.
7. You agree not to directly communicate with any senior employee,
executive officer or Director of MotherNature (individually, a "Team Member" and
collectively, the "Team Members") with the exception of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, and, with respect to administrative
matters only, to the senior financial officer; provided, however, that you may
respond to and communicate with Team Members if the Team Member directly
contacts you via telephone, e-mail, facsimile or other method of correspondence.
With respect to e-mail, facsimiles and other correspondence, "directly contact"
does not include e-mail, facsimiles and other correspondence for which you are a
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copy collated (a "cc") addressee only. You further agree not to make any
negative or adverse statement (oral or written) or otherwise disseminate any
non-public, confidential or proprietary information (oral or written) to other
persons or entities concerning the business, operations, products, services,
marketing, strategies, pricing policies, affairs, financial condition or
reputation of MotherNature or any of its officers, employees, directors or
investors in their capacity as such, except as may be required by law. Not in
limitation of the foregoing, you agree not to make any negative or adverse
statement (oral or written) or disseminate any nonpublic, confidential or
proprietary information (oral or written) to any analyst, broker, investment
banker, commercial lender, institutional investor or other member of the
financial community regarding MotherNature, its business, financial condition or
prospects, or any of its officers, employees, directors or investors. We remind
you of your obligation not to divulge any information regarding the terms of
this Agreement or any other confidential or proprietary information of
MotherNature following the termination of your employment.
8. You agree that the terms of Sections 6, 7(a), and 7(b) of your
Employment Agreement dated June 10, 1998 by and between MotherNature and you
shall survive your termination from MotherNature hereunder and shall remain in
effect through the Continuation
Period. You further acknowledge that you are a party to and will continue to be
bound by that certain Stockholders Agreement dated June 10, 1998 by and among
MotherNature, the Purchasers listed in the signature pages thereto and the
Existing Shareholders listed in the signature pages thereto (the "Stockholders
Agreement").
9. (a) The invalidity or unenforceability of any provision of this
agreement shall not affect the other provisions of this agreement, but this
agreement shall be revised, construed and reformed to the fullest extent
possible to effectuate the purposes of this agreement. This agreement shall be
binding upon and inure to the benefit of you and MotherNature and your
respective heirs, successors and assigns. You agree that MotherNature will not
have an adequate remedy if you fail to comply with Paragraphs 5, 7 and/or 8
hereof, and that damages will not be readily ascertainable, and that in the
event of such failure, you shall not oppose any application by MotherNature
requiring a decree of specific performance or an injunction enjoining a breach
of this agreement.
(b) In addition to all other remedies available to MotherNature,
effective immediately upon any breach by you any of your obligations hereunder,
(i) you shall forfeit all right to the forgiveness of outstanding loans provided
for in Paragraph 1(b) and such Paragraph 1(b) shall be null and void and of no
further force or effect and (ii) with respect to each such breach hereunder, you
shall forfeit all right to 25% of the total Salary Continuation that you would
otherwise be entitled to under Paragraph 1(a) (the "Aggregate Salary
Continuation"); provided, however, that, in the event that upon any such breach
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the total Salary Continuation then remaining to be paid is less than 25% of the
Aggregate Salary Continuation, you shall forfeit all right to all Salary
Continuation then remaining to be paid. Notwithstanding the foregoing, the
rights of forfeiture provided for in clauses (i) and/or (ii) of this Section
9(b) may be waived in any instance by the Company in its sole discretion;
provided, however, that waiver of such rights shall not be deemed a waiver of
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such rights on any other occasion.
(c) This agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without giving effect to the
principles of conflicts of law thereof.
(d) This letter agreement represents a complete understanding between the
parties and supersedes any and all other agreements and understandings, except
for the agreements referenced in Paragraph 8 above which such agreements shall
remain in full force and effect (to the extent indicated). You represent that
you have read the foregoing Letter Agreement, fully understand the terms and
conditions of such Agreement, and are voluntarily executing the same. In
entering into this Letter Agreement, you are not relying on any representation,
promise or inducement made by MotherNature, with the exception of the
consideration described in this letter. If the foregoing accurately sets forth
our agreement, please sign the enclosed copy of this letter and return it to me.
[Remainder of Page Intentionally Left Blank]
Very truly yours,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President and
Chief Executive Officer
Agreed and accepted:
/s/ ▇▇▇▇ ▇. Love
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▇▇▇▇ ▇. Love
Date: August 25, 1998
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
September 10, ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Termination Agreement dated August 7, 1998
Dear ▇▇▇▇:
In connection with the Termination Agreement (the "Agreement") dated August
7, 1998 between you and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("MotherNature"), Section 7 of
the Agreement is hereby amended to include ▇▇▇▇▇▇ ▇▇▇▇ in the list of
MotherNature Team Members with whom you may directly communicate. Section 7 as
hereby amended and all other provisions of the Agreement remain in full force
and effect.
Sincerely,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
Agreed and Accepted:
/s/ ▇▇▇▇ ▇. Love
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▇▇▇▇ ▇. Love