EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the " Agreement") is made and entered into on
April 5, 2002, by and between VITALLABS, a Nevada corporation, located at
0000 X. Xx. Xxxxxxxx Xxx., Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called
"VIT"), and Xxxxx X. Xxxxxx, Xx. located at ____________________
WHEREAS, VIT desires to retain Xxxxx X. Xxxxxx, Xx. in the position of
Chairman of the Board for VIT.
WHEREAS, VIT, and Xxxxx X. Xxxxxx, Xx. desire to enter into this Agreement to
Assure VIT of the services of Xxxxx X. Xxxxxx, Xx. for the benefit of VIT and
to set forth the respective rights and duties or the parties hereto;
WHEREAS, VIT is in the business of building a Healthcare Services company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions set forth herein, VIT and Xxxxx X. Xxxxxx, Xx. agree as
follows:
ARTICLE 1
Employment
1.1 Employment and Title. VIT or its assigns hereby employs Xxxxx X. Xxxxxx,
Xx. and hereby accepts such employment as the EXE. V.P. for VIT all upon the
terms and conditions set forth herein.
Description of Services to be Performed.
a) Xxxxx X. Xxxxxx, Xx. as Chairman of the Board is responsible for all
functions of the business, to insure all department business elements,
execution according to the business goals as set by the board of
directors.
b) During the terms (as hereinafter defined) hereof, Xxxxx X. Xxxxxx,
Xx. agrees to perform diligently and in good faith such duties and
services for VIT as are consistent with the position held by Xxxxx X.
Xxxxxx, Xx. under the direction of the Board of Directors of VIT.
Xxxxx X. Xxxxxx, Xx. agrees to devote his full time and best efforts
and the required time, energies and abilities to the services to be
performed hereunder and for the benefit of VIT. Xxxxx X. Xxxxxx, Xx.
shall be vested with such authority as is generally concomitant with
the position to which he is appointed for day-to-day operations.
c) Xxxxx X. Xxxxxx, Xx. shall communicate and report to the CEO and
Board of Directors of VIT, on a periodic (as required) basis as to the
State of the business and prospects for the business future growth.
1.2 Location. The principal place of employment and the location of VIT's
principal office and ordinary place of work shall be in 0000 Xx. Xxxxxxxx
Xxx. Xxxxxxxxxx, Xx. 00000, provided, however, Xxxxx X. Xxxxxx, Xx. shall,
when requested by the VIT or the Board of Directors, or may, if he determines
it to be reasonably necessary, temporarily perform services outside said area
as are reasonably required for the proper performance of his duties under
this Agreement.
1.3 Representations. Each party represents and warrants to the other that
he/she has full power and authority to enter into and perform this Agreement
and this his execution and performance of his Agreement shall not constitute
a default under or breach of any of the terms of any agreement to which
he/she is a party or under which he/she is bound. Each party represents that
no consent or approval of any third party is required for his execution,
delivery and performance of this Agreement or that all consents or approvals
of any third party required for his or its execution, delivery and
performance of this Agreement have been obtained.
ARTICLE II
Term
2.1 Term. The term of Xxxxx X. Xxxxxx, Xx.'s employment hereunder (the
"Term ") shall commence as of the date hereof (the "Commencement Date") and
shall continue from the date hereof for a period of five (5) years with
automatic 5-year extensions unless earlier terminated by Xxxxx X. Xxxxxx, Xx.
or VIT's Board of Directors pursuant to the provisions of this Agreement.
ARTICLE III
Compensation
3.1 Base Salary. As compensation for the services to be rendered by Xxxxx X.
Xxxxxx, Xx., VIT shall pay Xxxxx X. Xxxxxx, Xx., during the term of this
Agreement, an annual base salary of $180,000.00 which base salary shall
(prorated for periods less than a month) be paid in 26 equal installments
payable bi- weekly in the normal pay cycle of VIT. If Xxxxx X. Xxxxxx, Xx. is
successful in increasing the total revenue of VIT as outlined in Exhibit A-l
he will earn bonuses as outlined therein on an annually basis as outlined in
A-l.
3.2 Benefits. Xxxxx X. Xxxxxx, Xx. shall be entitled, during the Terms
hereof, to the same medical, hospital, dental and life insurance coverage as
are available to VIT's employees on the Commencement Date and shall receive
additional benefits (now being developed) as shall be made available to
members of the Executive staff.
Xxxxx X. Xxxxxx, Xx. shall be entitled to Four (4) weeks of fully paid
vacation per year during the term of this Agreement. Xxxxx X. Xxxxxx, Xx.
shall not be entitled to receive monetary or other valuable consideration for
vacation time to which he/she is entitled but does not take. The timing of
vacation periods shall be within the discretion of Xxx Xxxxxxxxxx, reasonably
exercised so as not to unnecessarily inconvenience VIT. Holidays will be paid
as defined in the company's policy and procedures manual.
3.3 Withholding. Any and an amounts payable under this Agreement, including,
without limitation, amounts payable in the event of the termination hereof
under Article V his hereof, are subject to withholding for such federal,
state and local taxes as VIT in its reasonable judgment determines to be
required to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities and Expenses. Xxxxx X. Xxxxxx, Xx. shall be furnished
with an office at the principal office of VIT, or at such other working
facilities and secretarial and other assistance suitable to his position and
adequate for the performance of his duties hereunder. VIT shall reimburse
Xxxxx X. Xxxxxx, Xx. for all of Xxxxx X. Xxxxxx, Xx.'s reasonable expenses
incurred while employed and performing his duties under and in accordance
with the terms and conditions of the Agreement, subject to Xxxxx X. Xxxxxx,
Xx.'s full and appropriate documentation, including, without limitation,
receipts for an such expenses in the manner required pursuant to VIT's
policies and procedures and the Internal Revenue Code as in effect from time
to time.
ARTICLE IV
Termination
5.1 Termination for Cause. Notwithstanding any other provision in this
agreement to the contrary, in the event Xxxxx X. Xxxxxx, Xx.'s employment is
terminated for cause, no benefits, whatsoever, shall be payable except for
accrued salaries and expense reimbursement. Xxxxx X. Xxxxxx, Xx. may be
terminated for cause upon the commission of any illegal or dishonest acts
which might materially and adversely reflect upon the reputation of VIT or
prove injurious to VIT' s operations. Xxxxx X. Xxxxxx, Xx. may be terminated
for cause in the event he violates the Restrictive Covenants contained in
this agreement or if he willingly and materially fails or refuses to perform
his duties and responsibilities as required by this Agreement.
5.2 Termination without Cause. This Agreement may not be terminated by VIT
without case during the initial five (5) year Term of employment. At any
time after the expiration of the initial five (5) year Term of employment,
VIT may by written notice terminate Xxxxx X. Xxxxxx, Xx.'s employment
hereunder without cause provided that it delivers to Xxxxx X. Xxxxxx, Xx. the
payments and benefits required as follows. Xxxxx X. Xxxxxx, Xx. shall be
entitled to continue to receive all incentives earned from this agreement in
effect at the time of notice to terminate without cause. Xxxxx X. Xxxxxx, Xx.
shall receive his total compensation per this Agreement for a period of one
year. The company shall further by full satisfaction release Xxxxx X. Xxxxxx,
Xx. for all debts, promissory notes, leases and other documents that Xxxxx X.
Xxxxxx, Xx. may have guaranteed on behalf of the company. Xxxxx X. Xxxxxx,
Xx. shall accept such payments and benefits in full discharge and release of
VIT of and from any further obligations under this agreement. Such discharge
and release shall not affect any rights and remedies which may be available
to Xxxxx X. Xxxxxx, Xx. otherwise than under this Agreement.
a) Should Xxxxx X. Xxxxxx, Xx. choose to terminate employment without cause
he will only be entitled to the same compensation as for cause.
ARTICLE VI
Covenant Not to Compete
6.1 Covenant Not to Compete. Upon termination of this Agreement by either the
voluntary resignation of Xxxxx X. Xxxxxx, Xx. without good cause or the
termination of Xxxxx X. Xxxxxx, Xx. for cause by VIT, Xxxxx X. Xxxxxx, Xx.
shall not directly or indirectly, within the State of Florida, enter into or
engage in any business in competition with the Business of VIT, as it now
exists or may exist at the time of termination of employment under this
Agreement, either as an individual on his own account, or as a partner, joint
venture, agent, or salesperson for any corporation, for a period of one (1)
year after the date of termination of employment hereunder. It is agreed by
the parties that this covenant on the part of VIT may be enforced against
Xxxxx X. Xxxxxx, Xx. by injunction, as well as by all other legal remedies
available to VIT. It is agreed by the parties hereto that if any portion of
this covenant not to compete is held to be unreasonable, arbitrary or against
public policy, the covenant herein shall be considered divisible both as to
time and geographic area so that a lesser period of time or geographical
areas 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 determines the specified time period or the specified
geographical area to be unreasonable, arbitrary, or against public policy, a
lesser time period or geographical area which is determined by the courts to
be reasonable, non-arbitrary and not against public policy may be enforced
against Xxxxx X. Xxxxxx, Xx. by injunction, as well as by all other legal
remedies available to VIT.
6.2 Solicitation of Employees. For a period of one year after Xxxxx X.
Xxxxxx, Xx. is no longer employed by VIT, Xxxxx X. Xxxxxx, Xx. will not,
directly, either as an individual, proprietor, stockholder, partner, officer,
director, Employee or otherwise, solicit any officer, director, Employee or
other individual:
a) To leave his or his employment or position with VIT;
b) To compete with the Business of VIT; or
c) To violate the terms of any employment; non-competition or similar
agreement with VIT.
For purposes of this paragraph, references to the Business of VIT shall
include the business of any subsidiary or affiliate of VIT.
6.3 a) Xxxxx X. Xxxxxx, Xx. agrees that in the event of a breach of any
term of this Agreement, and more particularly, in the event of the breach of
any of the terms and provisions of this Article VI, VIT shall be entitled to
secure an order in any suit brought for that purpose to enjoin Xxxxx X.
Xxxxxx, Xx. from violating any of the provisions of this Agreement and that,
pending the hearing and the decision on the application for such order, VIT
shall be entitled to a temporary restraining order without prejudice to any
other remedy available to VIT. XXXXX X. XXXXXX, XX. UNDERSTANDS THAT THE
COVENANTS OF THIS PARAGRAPH ARE THE ESSENCE OF THIS EMPLOYMENT AGREEMENT,
WITHOUT WHICH NO EMPLOYMENT AGREEMENT WOULD BE ENTERED INTO BY VIT.
b) The provisions of Article VI shall in no event be construed to be an
exclusive remedy, and such remedy shall be held and construed to be
cumulative and not exclusive of any rights or remedies, whether in law or
equity, otherwise available under the terms of this Agreement or under the
laws of the United States or any state.
ARTICLE VII
Confidentiality and Intellectual Property Rights
7 .1 Confidentiality. That Xxxxx X. Xxxxxx, Xx. will not at any time during
or after his employment by VIT, directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation in any manner whatsoever,
other than in the normal course of performing his duties for VIT, any
information concerning any matter affecting or relating to the Business of
VIT. While engaged as an employee of VIT, the Employee may only use
information concerning any matters affecting or relating to VIT or the
Business of VIT for a purpose which is necessary to the carrying out of the
duties as an employee of VIT, and Xxxxx X. Xxxxxx, Xx. may not make use of
any information of VIT after he/she is no longer an employee of VIT. That
Xxxxx X. Xxxxxx, Xx. agrees to the above without regard to whether all of the
above matters will be deemed confidential, material or important, it being
stipulated by the parties that all information, whether written or otherwise,
regarding VIT's Business, including but not limited to, information regarding
customers, customer lists, VIT's salaries, costs, prices, earnings, and any
financial or cost accounting reports, products, services, formulae,
compositions, machines, equipment, apparatus, systems, manufacturing
procedures, operations, potential acquisitions, new location plans,
prospective and executed contracts and other business arrangements, and
sources of supply, is presumed to be important, material and confidential
information of VIT for purposes of this Agreement, except to the extent that
such information may be otherwise lawfully and readily available to the
general public. Xxxxx X. Xxxxxx, Xx. agrees that all of this information is a
trade secret owned exclusively by VIT that shall at all times be kept
confidential. That Xxxxx X. Xxxxxx, Xx. further agrees that he/she will, upon
termination of his employment with VIT, return to VIT all books, records,
lists and other written, typed or printed materials, whether furnished by VIT
or prepared by VIT, which contain any information relating to VIT's Business,
and that Xxxxx X. Xxxxxx, Xx. agrees that he/she will neither make nor retain
any copies of such materials after termination of employment. For purposes of
this Article Vll, references to the Business or information of or relating to
VIT shall include the information or business of VIT, and any subsidiary or
affiliate of VIT, with the exception of that information known to employee
prior to his employment by VIT and brought to VIT by Xxxxx X. Xxxxxx, Xx.
7.2 Business Opportunities and Patentable Devices. Xxxxx X. Xxxxxx, Xx. will
make full and prompt written disclosure to VIT, or their nominee of:
a) Any business opportunity of which he/she becomes aware and which relates
to the Business of VIT, or any of its subsidiaries or affiliates; and
7.3 Assignment of Intellectual Property Rights. That Xxxxx X. Xxxxxx, Xx.
assigns to VIT and/or VIT the entire right, title and interest for the entire
world in and to all work performed, writing(s), formula(s), design(s),
model(s), drawing(s), software, photograph(s), design invention(s) and other
invention(s) made, conceived or reduced to practice or authored by VIT,
either solely or jointly with others, during the performance on this
Agreement or with the use of information, materials or facilities of VIT
received or used by VIT during the period Xxxxx X. Xxxxxx, Xx. is retained by
VIT under this Agreement or any extensions or renewals thereof, with the
exception of that information known to employee prior to his employment by
VIT, or to information and inventions made, conceived or reduced to practice
solely by Xxxxx X. Xxxxxx, Xx. on his own personal time and unrelated to the
business of VIT or it's affiliates.
That Xxxxx X. Xxxxxx, Xx. shall sign, execute and acknowledge or cause to be
signed, executed and acknowledged without cost, but at the expense of VIT,
any and all documents and to perform the acts as may be necessary, useful or
convenient for the purpose of securing to VIT or its nominees trade secret,
patent, trademark, or copyright protection throughout the world upon all such
work(s), writing(s), photograph(s), software, design invention(s), other
invention(s) and processes, title to which VIT may acquire in accordance with
the provisions of this clause.
ARTICLE VIII
Miscellaneous
8.1 No Waivers. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
8.2 Notices. Any notice to be given to VIT, and Xxxxx X. Xxxxxx, Xx. under
the terms of this Agreement may be delivered personally, by telecopy, telex
or other form of written electronic transmission, or by registered or
certified mail, postage prepaid, and shall be addressed as follows:
If to VIT: VIT
1375 So. Ft. Xxxxxxxx Ave.
Clearwater, F133756
If to Xxxxx X. Xxxxxx, Xx.: Xxxxx X. Xxxxxx, Xx.
----------------------------------
----------------------------------
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written
electronic transmission, or (iii) on the day after it is mail by registered
mail or certified mail, postage prepaid, as provided herein.
8.3 Severability. The provisions of this Agreement are severable and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provision, or
enforceable parts thereof, shall not be affected thereby.
8.4 Successors and Assigns. The rights and obligations of VIT under this
agreement shall inure to the benefit of and be binding upon the successors
and assigns of VIT, including the survivor upon any merger, consolidation or
combination of VlT with any other entity. Xxxxx X. Xxxxxx, Xx. shall not have
the right to assign, delegate or otherwise transfer any duty or obligation to
be performed by him/her hereunder to any person or entity.
8.5 Entire Agreement. This Agreement supersedes all prior agreements and
understandings between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination, or attempted
waiver shall be valid unless in writing, signed by the party against whom
such modification, termination or waiver is sought to be enforced. This
Agreement was the subject of negotiation by the parties hereto and their
counsel. The parties agree that no prior drafts of this Agreement shall be
admissible as evidence in any proceeding that involves the interpretation of
any provision accordance with the internal laws of the State of Florida
without reference to the conflict of law thereof
8.7 Section Headlines. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said sections.
8.8 Further Assurances. Each party hereto shall cooperate and shall take such
further action and shall execute and deliver such further documents as may be
reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement.
8.9 Gender. Whenever the pronouns "his" are used they shall also be deemed to
mean "he/she" or "it" or "its" whenever applicable. Words in the singular
shall be read and construed as though in the plural and words in the plural
shall be read and construed as though in the singular in all cases where they
would apply.
8.10 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
8.11 Attorney's Fees. In the event that either party is required to engage
the services of legal counsel to enforce the terms and conditions of this
Agreement against the other party, regardless of whether such action results
in litigation, the prevailing party shall be entitled to reasonable
attorneys' fees, costs of legal assistants, and other costs from the other
party, which shall include any fees or costs incurred at trial or any
appellate proceeding, and expenses and other cost, including any accounting
expenses incurred.
8.12 Indemnification VIT agrees to indemnify and hold harmless Xxxxx X.
Xxxxxx, Xx. from and against any and all liability, claims, losses, demands,
injuries, expenses and causes of action (including reasonable costs and
attorney's and paralegal fees) arising from or incident to the negligent or
willful act or omission of VIT's agents, affiliates, or contractors in the
performance of its obligations including but not limited to all claims which
may be made or asserted by any individual, agency or entity engaged by VIT or
a regulatory, licensing agency, a competitor of VIT or a recipient of the
duties or services provided by VIT but is not a party to this agreement.
IN WITNESS HEREOF, the parties hereto have executed this Employment Agreement
as of the date first above written.
Attest: Vitallabs, Inc. ("VIT")
By: /s/ Xxx Xxxxxxxxxx
------------------------------------
Its For the Board of Directors
Attest By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------
Its Secretary
/s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxx, Xx.
EXHIBIT A
The Company may declare a bonus for Xxxxx X. Xxxxxx, Xx. at the first Board
Meeting of each calendar year. The bonus will be based on the overall
performance against goals set by the board for the previous year. The bonus
however may not exceed more than (1%) one percent of the earnings before
income tax, depreciation and amortization. At each Annual board meeting the
bonus program may be reviewed and changed
