EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 1 day of September, 1998, by and between XXXXXX XXXXXXX XXXX of 0000 X.X.
00xx Xxxxxx, Xxxxxxxxxx, XX. 00000 (hereinafter "Employee"), and ATR INDUSTRIES
[a Nevada Corporation] having it's principal offices at 0000 X. Xxxxxxxxxx Xx,
Xx. Lauderdale (hereinafter "Employer")
W I T N E S S E T H
This Agreement is made and entered into under the following
circumstances:
(1) Whereas, Employer is engaged in the business of
________________________________; and
(2) Whereas, Employer desires, on the terms and conditions stated
herein, to employ the Employee as a General Manager; and
(3) Whereas, the Employee desires, on the terms and conditions stated
herein, to be employed by the Employer.
NOW THEREFORE, in consideration of the foregoing recitals, and of the
promises, covenants, terms and conditions contained herein, which is hereby
acknowledged by the parties hereto, it is agreed as follows:
1. Employment and Term.
a) Subject to earlier termination as provided for in this
Section 1 and in Section 2 hereof, the Employer hereby employs Employee, and
Employee hereby accepts employment with the employer, as General Manager for a
period of three (3) years (hereinafter the "Term of Employment")commencing the
1 day of September, 1998 ("hereinafter the "Effective Date") through the 1
day of September 2001. The Term of Employment shall be renewed upon the mutual
agreement of Employee and Employer. This agreement and Employee's employment
may be terminated at the Employer's discretion during the Term of Employment,
provided that Employer shall pay to Employee an amount of Employee's base salary
for the remaining period of the Term of Employment.
b) This Agreement may be terminated by Employee at Employee's
discretion by providing at least thirty (30) days prior written notice to
Employer. In the event of termination by Employee pursuant to this subsection,
Employer may immediately relieve Employee of all duties and immediately
terminate this Agreement, provided that Employer shall pay Employee at the then
applicable base salary rate to the termination date included in Employee's
original termination notice.
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2. Employment Termination.
Subject to earlier termination as provided for in this
Section, the Employer hereby employs Employee, and Employee hereby accepts
employment with the employer pursuant to the terms of this agreement, which
empowers Employer to terminate employee at any time with cause.
Cause shall be defined as:
i) failure of Employee to perform the duties in
a manner satisfactory to Employer, in its sole discretion; provided, however,
that the Employment shall not be terminated pursuant to this subparagraph (i)
unless Employer first gives Employee a written notice ("Notice of Deficiency").
The Notice of Deficiency shall specify the deficiencies in Employee's per-
formance of his duties. Employee shall have a period of thirty (30) days,
commencing on receipt of the Notice of Deficiency, in which to cure the
deficiencies contained in the Notice of Deficiency. In the event Employee does
not cure the deficiencies to the satisfaction of Employer, in its sole
discretion, within such thirty (30) day period, the Employer shall have the
right to immediately terminate the Employee's Employment. The provisions of
this subparagraph (i) may be invoked by Employer any number of times and cure of
deficiencies contained in any Notice of Deficiency shall not be construed as
a waiver of this subparagraph (i) nor prevent the Employer from issuing any
subsequent Notices of Deficiency;
ii) any dishonesty by Employee in dealings with the Employer, the
commission of fraud by Employee, or negligence or willful neglect in the
performance of the duties of Employee;
iii) the arrest or conviction (or plea of guilty or nolo contendere) of
Employee of any felony or other crime involving dishonesty or moral turpitude;
iv) any violation of any provision contained in this agreement;
v) unlawful use of narcotics or other controlled substances, or use of
alcohol or other drugs in a manner the Employer reasonably determines to be
adverse to the best interest of the Employer;
vi) Failure of Employee to attend training programs required for competency
in his duties (job description) as an Employee;
vii) if, due to any act or omission of Employee, liability insurance cannot
be reasonably obtained or maintained, or if, due to any act or omission of
Employee, liability insurance is canceled, terminated or revoked; or,
For all purposes of this Agreement, termination for "cause" shall be deemed
to have occurred in the event of Employee's resignation when, because of
existing facts and circumstances, subsequent termination for "cause" can be
reasonably forseen. In the event of termination pursuant to this subsection,
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Employee shall be paid only at the then applicable base salary rate up to and
including the date of termination. Employee shall not be paid any incentive
salary payments or other compensation, prorated or otherwise.
3. Duties and Responsibilities.
Employee shall: (a) engage full-time services, on behalf of Employer, at
locations directed by Employer, as Employer may designate; (b) perform all
managerial duties necessary; (c) perform such other duties as may from time to
time be reasonably assigned to the Employee by Employer; (d) cooperate with
Employer, to the fullest ethical extent, to promote Employer's business and to
continue and expand the products provided by Employer, and to further the best
interests of the Employer; and (e) perform all services in a professional manner
using the full knowledge and skill of Employee which services shall be performed
in accordance with standards and procedures established by Employer.
Employee shall (i) devote Employee's entire business time, attention and
energies exclusively to the Employer; and (ii) faithfully and competently
perform the duties hereunder using Employee's full professional skill and
knowledge; and (iii) not engage in any other professional or business activity.
4. Compensation.
Employee shall be paid compensation during this Agreement as follows:
a) A base salary of $125,000.00 per year, payable in installments according
to the Employer's regular payroll schedule.
b) An incentive salary equal to two (2%) percent of the adjusted net
profits (hereinafter defined) of the Employer beginning with the Employer's year
end 1998 and each fiscal year thereafter during the term of this Agreement.
"Adjusted net profit" shall be the net profit of the Employer before federal and
state income taxes, determined in accordance with generally accepted accounting
practices by the Employer's independent accounting firm and adjusted to exclude:
(i) any incentive salary payments paid pursuant to this Agreement; (ii) any
contributions to pension and/or profit sharing plans; (iii) any extraordinary
gains or losses (including, but not limited to, gains or losses on disposition
of assets); (iv) any refund or deficiency of federal and state income taxes paid
in a prior year; and (v) any provision for federal or state income taxes made in
prior years which is subsequently determined to be unnecessary. The
determination of the adjusted net profits made by the independent accounting
firm employed by the Employer shall be final and binding upon the Employee and
Employer. The incentive salary payment shall be made within thirty (30) days
after the Employer's independent accounting firm has concluded it's audit. If
the final audit is not prepared within ninety (90) days after the end of the
fiscal year, then Employer shall make preliminary payment equal to fifty percent
(50%) of the amount due based upon the adjusted net profits preliminarily
determined by the independent accounting firm, subject to payment of the
balance, if any, promptly following completion of the audit by the Employer's
independent accounting firm.
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5. Benefits.
a) Vacation/Personal Time. Employer shall be entitled to an
aggregate of fourteen (14) working days paid vacation during each full year
during the Term of Employment. In addition, personal time will be provided,
calculated at a rate of four (4) hours during each full year during the Term of
Employment.
b) Holidays. Employee shall be entitled to at lease six (6)
paid holidays each calendar year. Employer shall notify Employee on or about the
beginning of each calendar year with respect to the holiday schedule for the
coming year. Personal holidays, if any, will be scheduled in advance subject to
requirements of Employer. Such holidays must be taken during the calendar year
and cannot be carried forward into the next year.
c) Sick Leave. Employee shall be entitled to sick leave and
emergency leave which shall be liberally granted upon reasonable notice.
d) Medical and Group Life Insurance. Employer agrees to
include Employee in the group medical and hospital plan of Employer and provide
group life insurance for Employee at no charge to Employee in the amount of
$250,000.00 during this agreement.
e) Pension and Profit Sharing Plans. Employee shall be
entitled to participate in any pension or profit sharing plan or other type
adopted by the Employer for the benefit of its officers and/or regular
employees.
f) Automobile. Employer shall provide to Employee the use of
an automobile of Employee's choice at a gross purchase price not to exceed
$40,000.00. Employer agrees to replace the automobile with a new one at
Employee's request no more than once every two years. Employer shall pay all
automobile operating expenses incurred by Employee in the performance of
Employee's duties. Employer shall procure and maintain in force an automobile
liability policy for the automobile with coverage, including Employee, in the
minimum amount of $1,000,000.00 combined single limit on bodily injury and
property damage.
g) Expense Reimbursement. Employee shall be entitled to
reimbursement for all reasonable expenses, including travel and entertainment,
incurred by Employee in the performance of Employee's duties. Employee shall
maintain records and written receipts as required by the Employer and reasonably
requested by the board of directors to substantiate such expenses.
6. Non-Competition.
During the Term of Employment and for a continuous period of
two (2) years commencing upon termination of employment, Employee shall not,
individually or jointly with others, own or hold any ownership or voting
interest in any person or entity engaged in a business the same as or similar to
any business of the employer or which competes in any manner whatsoever with the
business of Employer, and which is located or intended to be located in the
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State of Florida; and Employee shall not act as an officer, director, employee,
partner, independent contractor, consultant, principal, agent, proprietor, or in
any other capacity for, not lend any assistance (financial, managerial,
professional or otherwise) or cooperation to, nor perform any services for, any
such person or entity; and during the Term of Employment Employee shall be
prohibited from the foregoing activities and relationships with any person or
entity which competes with Employer, regardless of the geographic location of
such person or entity.
7. Non-Disclosure; Non-Solicitation. Except in the performance of
servicing customers of Employer, at no time during the Term of Employment or at
anytime thereafter shall Employee, individually or jointly with others, for the
benefit of Employee or any third party, publish, disclose, use or authorize
anyone else to publish, disclose or use, any secret or confidential material or
information regarding the business methods, business policies, procedures,
techniques or trade secrets, or other knowledge or processes of or developed by
Employer (and/or any other Employee or agent of Employer), any affiliate of the
employer, any entity in which the Employer has an interest, including, without
limitation, any secret or confidential information relating to the business,
customers, financial position, trade or industrial practices, trade secrets,
technology or know-how of the Employer.
Furthermore, for a period of two (2) years commencing upon termination
of Employee's employment, Employee shall not solicit or contact, or cause any
other person or entity to solicit or contact, any current customer of Employer
at the time of termination.
8. Reasonableness of Restrictions: Reformation: Enforcement. The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in Section 6 and 7 hereof (hereinafter "Restrictive
Covenants") are reasonably necessary to protect the Employer's legitimate
business interests and properly required for the adequate protection of such
business interests of Employer. Employee acknowledges that the Employer will
provide to Employee confidential information concerning the Employer's business
methods and operating practices in reliance on the covenants contained in the
Restricted Covenants. It is agreed by the parties hereto that if any portion of
the restrictions contained in the Restrictive Covenants. It is agreed by the
parties hereto that if any portion of the restrictions contained in the
Restrictive Covenants are held to be unreasonable, arbitrary, or against public
policy, then the restrictions shall be considered divisible, both as to the time
and to the geographical area, with each month of the specified period being
deemed a separate period of time and each radius mile of the restricted
territory being deemed a separate geographic area, so that the lesser period of
time or geographical area shall remain effective so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree that
in the event any court of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area which is determined to be reasonable, nonarbitrary, and not
against public policy may be enforced against Employee. If Employee shall
violate any of the covenants contained herein and if any court action is
instituted by the Employer to prevent or enjoin such violation, then the period
of time during which the Employer's business activities shall be restricted, as
provided in this Agreement, shall be lengthened by a period of time equal to the
period between the date of the Employee's breach of
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the terms or covenants contained in this Agreement and the date on which the
decree of the court disposing of the issued upon the merits shall become final
and not subject to further appeal.
9. No Remedy At Law. Employee agrees that the remedy at law for any
breach by Employee of the covenants contained in Sections 6 and 7 will be
inadequate and would be difficult to ascertain and therefore, in the event of
the breach or threatened breach of any such covenants, the Employer, in addition
to any and all other remedies, shall have the right to enjoin Employee from any
threatened or actual activities in violation thereof; and Employee hereby
consents and agrees that temporary and permanent injunctive relief may be
granted in any proceedings which might be brought to enforce any such covenants
without the necessity of proof of actual damages.
10. Representations of Employee. Employee hereby makes the following
representations to Employer, each of which is material and is being relied on by
Employer and shall be true as of the date hereof and throughout the Term of
Employment:
a) Employment Qualifications. Employee shall (i) use
Employee's best efforts to maintain qualifications as a general manager, (ii) is
experienced in administrative procedure, (iii) agrees to participate and shall
participate in a continuing education and/or training programs, (iv) use
Employee's best efforts as a general manager.
b) Factual Information. Any and all factual information
furnished by Employee to Employer is true and accurate in every material respect
as of the date on which such information was furnished.
c) Professional Conduct. Employee has and will continue to
conduct all activities in accordance and compliance with any and all laws,
regulations and ethical standards.
d) Authority. Employee has full power and authority to enter
into this Agreement and perform all obligations hereunder. The execution and
performance of this Agreement by Employee will not constitute a breach or
violation of any covenant, agreement or contract to which Employee is a party or
by which Employee is bound.
11. Books, Office Equipment, Etc.
a) Employee's Ownership. All books, office equipment
and other property furnished by Employee shall remain Employee's property.
b) Employer's Ownership. All instruments, equipment,
furniture, furnishings, supplies, products, samples, forms, charts, logs,
brochures, client records, procedures, contracts and any other property,
materials or information furnished by Employer are and shall remain the sole
property of Employer. Upon termination of this Agreement, Employee shall return
all such property to Employer.
12. Assignability. This Agreement and the rights and duties created
hereunder shall not be assignable or delegable by Employee. Employer may, at
Employer's optio and without
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consent of Employee, assign its rights and duties hereunder to any successor
entity or transferee of Employer's assets.
13. Notices. All notices or other communications provided for herein to
be given or sent to a party by the other party shall be deemed validly given or
sent if in writing and mailed, postage prepaid, by registered or certified
United States mail, addressed to the parties at their addresses hereinabove set
forth. Any party may give notice to the other parties at any time, by the method
specified above, of a change in the address at which, or the person to whom,
notice is to be addressed.
14. Severability. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant or provision
hereof. In the event that any provision of this Agreement shall be determined to
be invalid or unenforceable, such provision shall be deemed limited by
construction in scope and effect to the minimum extent necessary to render the
same valid and enforceable provision shall be deemed severed from this
Agreement, but every other provision of this Agreement shall remain in full
force and effect.
15. Effect of Termination. The termination of this Agreement, for
whatever reason, shall not extinguish those obligations of Employee specified in
the Restrictive Covenants, nor shall the same extinguish the right of either
party to bring an action, either in law or in equity, for breach of this
Agreement by the other party.
16. Waiver. The failure of a party to enforce any term, provision or
condition of this Agreement at any time or times shall not be deemed a waiver of
that term, provision or condition for the future, nor shall any specific waiver
of a term, provision or condition at one time be deemed a waiver of such term,
provision or condition for any future time or times.
17. Parties. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their heirs, personal representative,
legal representative and proper successors and assigns, as the case may be.
18. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State of Florida, without giving
effect to the principles of comity or conflicts of laws thereof.
19. Captions. The captions of this Agreement have been assigned thereto
for convenience only, and shall not be construed to the limit, define or modify
the substantive terms hereof.
20. Entire Agreement; Counterparts. This Agreement constitutes the
entire agreement between the parties hereto concerning the subject matter
hereof, and supersedes all prior agreements, memoranda, correspondence,
conversations and negotiations. This Agreement may be executed in several
counterparts that together shall constitute but one and the same Agreement.
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21. Costs of Enforcement. In the event it is necessary for any party to
retain the services of an attorney or to initiate legal proceedings to enforce
the terms of this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party, in addition to all other remedies, all costs of
such enforcement, including reasonable attorneys' fees and including trial and
appellate proceedings.
22. Gender, Etc. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
the date first above written.
Signed in the presence of: Employee:
/s/Xxxxxx Xxxxxxx Xxxx
---------------------------- -----------------------------
As to Employer XXXXXX XXXXXXX XXXX
/s/Xxxxxx Xxxx
----------------------------
As to Employee
Signed in the presence of: Employer:
ATR INDUSTRIES
ATTEST
___/s/Xxxxxx Roth____________ By:__/s/_________________
Secretary __Director____________________
For ATR INDUSTRIES
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