EXHIBIT 10.29
SEPARATION AGREEMENT AND GENERAL RELEASE
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This Separation Agreement and General Release ("Agreement") is made and
entered into this 29th day of December, 2000, between Mannatech, Inc.
("Mannatech") and its affiliates (defined as any entity which owns or controls,
is owned or controlled by, or is under common ownership or control with
Mannatech), and Anthony E. Canale ("Canale"). Canale and Mannatech are
collectively referred to herein as the "Parties." Mannatech's related entities
are collectively referred to herein as "Affiliates." This agreement is effective
as of the date first written above ("Effective Date").
WHEREAS the Parties desire to finally, fully and completely resolve all
disputes that now or may exist between them concerning Canale's hiring,
employment and termination from Mannatech, and all disputes over benefits and
compensations connected with such employment, and specifically, but not limited
to any disputes arising from the terms of Canale's employment as set forth in
the Employment Agreement entered into between the Parties as of September 28,
1998 ("Employment Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreement hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
1. Canale acknowledges that his employment with Mannatech ended effective
February 28, 2001 ("Separation Date"), and that all benefits and perquisites
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related to Canale's employment with Mannatech shall cease as of that date.
Canale has previously received from Mannatech all regular salary payments and
benefits, including in accordance with Mannatech's regular salary payment
schedule. Except as otherwise required pursuant to this Agreement, no further
salary, bonus, benefits or payments shall be due from or paid by Mannatech to
Canale, and Canale hereby waives and relinquishes all claims to further
employment, compensation, benefits, stock, options, or other remuneration from
Mannatech.
2. Within five (5) days after the Separation Date, Canale shall return
all equipment and property in his possession which belongs to Mannatech and all
documents and any copies of notes, memorandum or any other written material that
relates or refers to Mannatech, including all files or programs stored
electronically.
3. Any vested interest held by Canale in Mannatech's 401(k) Plans shall
be distributed in accordance with the terms of the plan (the "Plan") and
applicable law. Canale shall not be a participant in the Plan after the
Separation Date, and shall not be entitled to any further contribution for any
period of time after the Separation Date. Mannatech shall provide Canale under
separate cover at his home address information necessary to facilitate the
transfer or rollover of his 401(k) account.
4. Unless this Agreement is terminated, including pursuant to Paragraph
20 hereof, Mannatech shall pay to Canale on March 1, 2001, the sum of
$400,000.00. Such payment shall be made by written check to Canale with a
written accounting reflecting the gross amounts paid and itemized deductions to
be mailed to Canale at his residence at 401 St. Charles Port, Southlake, Texas
76092.
Thereafter, on each of February 28, 2002 and February 28, 2003, Canale
shall receive the sum of $250,000. The foregoing payments are in lieu of,
settlement of and
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satisfaction of all Severance Payments required under the Employment Agreement,
specifically including those defined and required to be paid under paragraphs
8.1(6) & 8.1(17) of the Employment Agreement and constitute a part of the
consideration under this Agreement.
5. Canale and his dependents shall have the right to choose at their
cost, extension of applicable medical insurance coverage pursuant to COBRA.
Mannatech shall provide under separate cover to Canale at his home address
information regarding COBRA election, and Mannatech agrees to reimburse Canale
for any premiums paid by him for continuation of health coverage for Canale and
his dependents (including his spouse) under Mannatech's group health plan, if
any, pursuant to its COBRA continuation of coverage provisions, for a period not
to exceed 18 months, the period during which each such individual is covered
under COBRA continuation of coverage provisions.
6. As further consideration to Canale, Mannatech and Canale agree to
execute a Warrant Agreement which shall provide for the creation of warrants
exercisable to acquire the capital common stock of Mannatech, valid for a period
of seven (7) years from the Separation Date, in the respective number of shares
and respective exercise prices as follows:
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Exercise Price Number Warrants
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$1.75 42,500
$2.00 37,500
$2.25 33,333
$4.00 100,000
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The provisions of this paragraph shall supercede the requirements of the
Employee Agreement regarding the conversion of stock options to warrants,
including those requirements of Paragraph 8.1(16) (iii) of the Employment
Agreement. All stock options respecting stock in Mannatech and Internet Health
Group, Inc. of Canale shall terminate on the Separation Date, and shall be null
and void and of no effect.
7. The Warrant Agreement is provided to Canale for his execution as
Attachment A to this Agreement. Mannatech does not undertake any duty to Canale
to hereafter institute, file or maintain a Registration Statement respecting the
Warrant Agreement.
8. As further consideration to Canale, Mannatech agrees to transfer to
Canale the ownership of any vehicle owned by Mannatech and used exclusively by
Canale, upon the termination of the lease agreements ("Auto Lease") currently in
effect regarding such vehicle. Until the termination of the Auto Lease,
Mannatech will keep the lease payments current, and Canale shall have full use
and enjoyment of the vehicle, while maintaining the same in good repair and
keeping the same insured for its replacement cost.
9. In consideration of the premises, covenants and other valuable
consideration provided by Mannatech in this Agreement, and specifically in
exchange for the promises and consideration provided by Mannatech in paragraphs
4, 5, 6, 7, 8 and 9, and subject thereto, Canale hereby releases Mannatech and
its employees, officers, agents, directors, shareholders, representatives, plan
administrators, attorneys, subsidiaries and Affiliates, collectively referred to
as "Mannatech Releasees," from any and all claims, causes of action, losses,
obligations, liabilities, damages, judgments, costs, expenses (including
attorneys fees) of any kind whatsoever, and occurring in any
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capacity whatsoever including, but not limited to, disputes or claims arising
out of Canale's hiring, employment or termination of such employment with
Mannatech, including but not limited to disputes arising under the Employment
Agreement between the Parties, or arising out of any act committed or omitted
during or after the existence of such employment relationship, including any
disputes regarding compensation, bonus, stock or options and all obligations of
the Employment Agreement, this Separation Agreement and General Release alone
surviving and controlling the obligations of the Parties. This Release includes,
but is not limited to, all claims, whether arising in contract or allegations of
tort, common law or assertion of federal or state statutory rights, as well as
any expenses, costs or attorneys fees, and includes a release of any claims for
wrongful discharge, breach of express or implied contract or implied covenant of
good faith and fair dealing. Canale agrees to never file any lawsuit asserting
any of the claims that are released in this paragraph and in this Agreement,
generally.
On the Separation Date, Canale shall resign as Executive Vice President of
the Corporation but shall remain as Director and shall receive compensation due
in the amount approved by the Board of Directors. Further, Canale shall hold
himself open for a period of one (1) year from the Separation Date to consult to
the Company regarding various matters which may from time-to-time arise, at no
additional compensation. No agreement contained herein shall be deemed to effect
or release any indemnity provided to Directors of Mannatech by separate
agreement or under its By-Laws.
10. In further consideration of the premises, covenants and other valuable
consideration provided by Mannatech in this Agreement, and specifically in
exchange
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for the promises and consideration provided by Mannatech in paragraphs 4, 5, 6,
7, 8 and 9, and subject thereto, Canale further agrees as follows:
(a) Canale shall not, directly or indirectly for Canale or for others, in
any geographic area or market where Mannatech or any of its Affiliates
are conducting any business as of the date of the termination of the
employment relationship or have during the previous twelve months
conducted such business:
(i) Engage in any business competitive with the business conducted
by Mannatech;
(ii) Render advice or services to, or otherwise assist, any other
person, association or entity who is engaged, directly or
indirectly, in any business competitive with the business
conducted by Mannatech with respect to such competitive
business; or
(iii) Induce any employee of Mannatech or any of its Affiliates to
terminate his or her employment with Mannatech or such
Affiliates, or hire or assist in the hiring of any such employee
by any person, association, or entity not affiliated with
Mannatech.
(b) The noncompetition obligations contained herein shall apply throughout
the duration of the period during which Canale is receiving any
payment or benefits pursuant to this Agreement.
(c) Canale understands that the restrictions set forth above may limit
Canale's ability to engage in certain businesses anywhere in the world
during the period provided for above, but acknowledges that Canale
will receive sufficiently high remuneration and other benefits under
this Agreement to
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justify such restriction. Canale acknowledges that money damages would
not be a sufficient remedy for any breach of his noncompetition
obligations hereunder by Canale, and Mannatech shall be entitled to
enforce the provisions of these noncompetition obligations by
terminating any payments then owing to Canale under this Agreement
and/or to specific performance and injunctive relief as remedies for
such breach of the noncompetition obligations contained herein, but
shall be in addition to all remedies available at law or in equity to
Mannatech, including without limitation, the recovery of damages from
Canale and Canale's agents involved in such breach and remedies
available to Mannatech pursuant to other agreements with Canale.
(d) It is expressly understood and agreed that Mannatech and Canale
consider the restrictions contained in this Agreement to be reasonable
and necessary to protect the proprietary information of Mannatech.
Nevertheless, if any of the aforesaid restrictions are found by a
court having jurisdiction to be unreasonable, or overly broad as to
geographic area or time, or otherwise unenforceable, the parties
intend for the restrictions therein to be modified by such court so as
to be reasonable and enforceable and, as so modified by the court, to
be fully enforced, and the remaining provisions of the noncompetition
obligations contained herein and the remainder of this Agreement shall
not be affected thereby, and shall remain in full force and effect.
11. In further consideration of the premises, covenants and other valuable
consideration provided by Mannatech in this Agreement, and specifically in
exchange
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for the promises and consideration provided by Mannatech in paragraphs 4, 5, 6,
7, 8 and 9, and subject thereto, Canale further agrees as follows:
(a) All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceivable, made,
developed, or acquired by Canale, individually or in conjunction with
others, during Canale's employment by Mannatech (whether during
business hours or otherwise and whether on Mannatech's premises or
otherwise) that relate to Mannatech's business, products, or services
(including, without limitation, all such information relating to
corporate opportunities, research, financial and sales data, pricing
terms, evaluations, opinions, interpretations, acquisitions,
prospects, the identity of customers or their requirements, the
identity of key contacts within the customer's organizations or within
the organization of acquisition prospects, or marketing and
merchandising techniques, prospective names, and marks) shall be
disclosed to Mannatech and are and shall be the sole and exclusive
property of Mannatech. Moreover, all documents, drawings, memoranda,
notes, records, files, correspondence, manuals, models,
specifications, computer programs, electronic mail, voice mail,
electronic databases, maps, and all other writings or materials of any
type embodying any of such information, ideas, concepts, improvements,
discoveries, and inventions are and shall be the sole and exclusive
property of Mannatech. Upon termination of Canale's employment by
Mannatech, for any reason, Canale promptly shall deliver the same and
all copies thereof, to Mannatech.
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(b) Canale will not, at any time, make any unauthorized disclosure of any
confidential business information or trade secrets of Mannatech of its
Affiliates, or make any use thereof. Affiliates of the Mannatech shall
be third party beneficiaries of Canale's obligations under this
section. As a result of Canale's employment by Mannatech, Canale may
also from time to time have had access to, or knowledge of,
confidential business information or trade secrets of third parties,
such as customers, suppliers, partners, joint venturers, and the like,
of Mannatech and its Affiliates. Canale also agrees to preserve and
protect the confidentiality of such third party confidential
information and trade secrets to the same extent, and on the same
basis, as Mannatech's confidential business information and trade
secrets. Canale shall refrain from publishing any oral or written
statements about Mannatech, any of its Affiliates, or any of such
entities' officers, employees, agents, or representatives (i) that are
slanderous, libelous, or defamatory, 'or (ii) that disclose private or
confidential information about Mannatech, any of its Affiliates, or
any of such entities' business affairs, officers, employees, agents,
or representatives, or (iii) that constitute an intrusion into the
seclusion or private lives of Mannatech, any of its Affiliates, or any
of such entities' officers, employees, agents, or representatives, or
(iv) that give rise to unreasonable publicity about the private lives
of Mannatech, any of its Affiliates, or any of such entities'
officers, employees, agents, or representatives, or (v) that place
Mannatech, any of its Affiliates, or any of such entities' officers,
employees, agents, or representatives in a false
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light before the public, or (vi) that constitute a misappropriation of
the name or likeness of Mannatech, any of its Affiliates, or any of
such entities' officers, employees, agents, or representatives. A
violation or threatened violation of this prohibition may be enjoined
by the courts.
(c) If, during Canale's employment by Mannatech, Canale had created any
work of authorship fixed in any tangible medium of expression, which
is the subject matter of copyright (such as videotapes, written
presentations, or acquisitions, computer programs, electronic mail,
voice mail, electronic databases, drawings, maps, architectural
renditions, models, manuals, brochures, or the like) relating to
Mannatech's business, products, or services, whether such work is
created solely by Canale or jointly with others (whether during
business hours or otherwise and whether on Mannatech's premises or
otherwise). Mannatech shall be deemed the author of such work if the
work is not prepared by Canale within the scope of Canale's employment
but is specially ordered by Mannatech as a contribution to a
collective work, as a part of a motion picture or other audiovisual
work, as a translation, as a supplementary work, as a compilation, or
as an instructional text, then the work shall be considered to be work
made for hire and Mannatech shall be the author of the work. If such
work is neither prepared by Canale within the scope of Canale's
employment nor a work specially ordered that is deemed to be a work
made for hire, then Canale hereby agrees to assign, and by these
presents does assign, to Mannatech all of Canale's worldwide right,
title, and interest in and to such work and all rights of copyright
therein.
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(e) Canale shall assist Mannatech and its nominee, at any time, in the
protection of Mannatech's worldwide right, title and interest in and
to information, ideas, concepts, improvements, discoveries and
inventions, and its copyrighted works, including without limitation,
the execution of all formal assignment documents requested by
Mannatech or its nominee and the execution of all lawful oaths and
applications for patents and registration of copyright in the United
States and foreign countries.
(f) Canale acknowledges that money damages would not be sufficient remedy
for any breach of this section by Canale, and Mannatech shall be
entitled to enforce the provisions of this section by terminating any
and all payments then owing to Canale under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach
or any threatened breach. Such remedies shall not be deemed the
exclusive remedies for a breach of this section, but shall be in
addition to all remedies available at law or in equity to Mannatech,
including the recovery of damages from Canale and his agents involved
in such breach and remedies available to Mannatech pursuant to other
agreements with Canale.
12. The general release provided for in paragraph 11(a) is mutual and,
therefore, Mannatech, for itself and its Affiliates, agrees and hereby does
release Canale for any claims, causes of action, losses, obligations,
liabilities, damages, judgments, costs, expenses (including attorneys' fees) of
any kind whatsoever arising out of Canale's hiring or termination of such
employment, including, but
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not limited to disputes arising under the Employment Agreement between the
Parties.
13. Mannatech makes no representations regarding the taxability of the
payments and/or the exercise of warrants conferred or to be delivered hereunder,
and Canale hereby agrees that he is solely responsible for all tax obligations,
if any, including, but not limited to, all reporting and payment obligations,
which may arise as a consequence of such payments and/or the exercise of any
such warrants. Canale hereby agrees to indemnify and hold Mannatech and the
Mannatech Releasees harmless from and against any and all loss, cost, damage or
expense, including, without limitation, attorney's fees, incurred by Mannatech
and the Mannatech Releasees, arising out of the tax treatment of any payments
and/or the exercise of any warrants received by Canale as a result of this
Agreement.
14. Canale and Mannatech agree that they will not disparage each other or
their respective Affiliates. In respect to any inquiries from individuals who
are not employed with Mannatech concerning the termination of the employment
relationship between Canale and Mannatech, the Parties will respond to the
effect that "Anthony Canale resigned to pursue other career opportunities."
15. The Parties acknowledge that this Agreement has been drafted,
prepared, negotiated and agreed to jointly, with advice of each Party's
respective counsel, and to the extent that any ambiguity should appear, now or
at any time in the future, latent or apparent, such ambiguity shall not be
resolved or construed against either Party.
16. This Agreement shall not in any way be construed as an admission by
either Party of any acts of wrongdoing, violation of any statute, law or legal
or
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contractual right. Rather, Mannatech and Canale specifically deny and disclaim
they have any liability to the other for any claims asserted or arising out of
the employment relationship or termination of employment relationship, but are
willing to enter into this Agreement described herein to definitively resolve
once and forever this matter, and to avoid the cost, expense and delay of
litigation.
17. Canale and Mannatech represent and agree that they have thoroughly
discussed all aspects of this Agreement and the effect of same with their
attorneys, that they have had a reasonable time to review the Agreement, that
they fully understand all the provisions of the Agreement and are voluntarily
entering into this Separation Agreement and General Release. Canale further
represents that he has not transferred or assigned to any person or entity any
claim involving Mannatech or any portion thereof or interest therein.
18. Each of the Parties agree to keep confidential the specific terms of
this Agreement, and shall not disclose the terms of this Agreement to any person
except the financial, tax and legal advisors of Canale and Mannatech (and the
Board of Directors of Mannatech) unless required to disclose same to others by
legal process, in which event the Party so ordered shall first give notice to
the other Party and an opportunity to seek a protective order.
19. This Agreement may be executed in multiple counterparts, whether or
not all signatories appear on these counterparts, and each counterpart shall be
deemed an original for all purposes. This Agreement shall be deemed performable
by all Parties in Dallas County, Texas and the construction and enforcement of
this Agreement shall be governed by Texas law without regard to its conflicts of
law rules.
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20. Canale has been given a period of 21 days from the Effective Date to
review and consider this Agreement before signing it. He may use as much of this
21-day period as he wishes before signing and he is encouraged to consult with
an attorney before signing this Agreement. Canale understands that whether or
not to consult with an attorney is his decision. Canale may revoke this
Agreement within 7 (seven) days after signing it. Revocation can be made by
delivering a written notice of revocation to Mannatech, Inc. c/o Deanne Varner,
General Counsel, 600 South Royal Lane, Suite 200, Coppell, Texas 75019. This
agreement is subject to review and approval by the Board of Directors and its
various committees.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS AS SPECIFIED IN PARAGRAPH 9 ABOVE.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING AGREEMENT, THAT I
UNDERSTAND ALL OF ITS TERMS, AND THAT I AM ENTERING INTO IT VOLUNTARILY.
I FURTHER ACKNOLEDGE THAT I AM AWARE OF MY RIGHTS TO REVIEW AND CONSIDER
THIS AGREEMENT FOR 21 DAYS AND TO CONSULT WITH AN ATTORNEY ABOUT IT, AND STATE
THAT BEFORE SIGNING THIS AGREEMENT, I EXERCISE THESE RIGHTS TO THE FULL EXTENT
THAT I DESIRED.
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AGREED TO:
/s/ Anthony E. Canale Date: 12/29/00
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ANTHONY E. CANALE
STATE OF FLORIDA (S)
(S)
COUNTY OF COLLIER (S)
This instrument was acknowledged before me on this 29 day of December,
2000, by Virginia A. Vogt.
/s/ Virginia A. Vogt
VIRGINIA A. VOGT
My Commision # CC 820646 Notary Public in and for
Expires: 03/24/2003 the State of Florida
1-800-3-NOTARY Fla. TX DL #00913741
Notary Service & Bonding Co.
(PERSONALIZED SEAL)
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MANNATECH, INC.
By: /s/ Robert M. Henry Date: 1/15/01
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Title: ROBERT M. HENRY, CEO
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
Before me, a Notary Public, on this day personally appeared ROBERT M.
HENRY, known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of
MANNATECH, INC., and that he has executed the same on behalf of said corporation
for the purposes and consideration therein expressed, and in the capacity
therein stated.
I Given under my hand and seal of office this 15th of January, 2001.
VINCENZA C. CALVEY /s/ Vincenza C. Calvey
MY COMMISSION EXPIRES ----------------------------------------
September 11, 2001 Notary Public in and for
(PERSONALIZED SEAL) the State of Texas
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