Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into effective the 16th day of January, 2004,
by and between GFY Foods, INC., a Nevada corporation (herein called the
"CORPORATION"), and Xxxxxx Xxxxxxx (herein called the "EMPLOYEE").
1. EMPLOYMENT. The CORPORATION hereby employs EMPLOYEE, and EMPLOYEE hereby
accepts such employment, to serve as and in the capacity of President or
such other capacity as may be determined by the Board of Directors of the
CORPORATION upon and subject to the terms and conditions set forth herein.
2. TERM OF EMPLOYMENT. The term of this Agreement, and the term of the
employment of EMPLOYEE hereunder, shall be for a period of five (5) years
beginning January 16, 2004 and ending December 31, 2008, unless sooner
terminated in the manner provided herein. The term of this Agreement and of
the employment of EMPLOYEE hereunder may be extended or renewed for such
additional terms or periods and upon and subject to such additional terms
and conditions as the parties may agree.
3. DUTIES.
A. EMPLOYEE, during normal business hours, shall devote his best efforts
and his entire time, attention and energy to the business and affairs
of the CORPORATION. EMPLOYEE shall perform all duties normally and
properly incident to the office or positions held by him and such
further duties as may from time to time be assigned to him by the Board
of Directors of the CORPORATION.
B. EMPLOYEE agrees to adhere to all existing rules and company policies of
the CORPORATION, as well as any other procedures, duties and
responsibilities that may be reasonably required of EMPLOYEE and
promulgated by the CORPORATION, its executive officers and its Board of
Directors.
C. During the term of this Agreement, EMPLOYEE shall not engage, directly
or indirectly, in any activities competitive with any business which is
now or which hereafter may be conducted by the CORPORATION, or its any
of its subsidiaries.
4. COMPENSATION. As compensation for the services rendered by EMPLOYEE during
the term of this Agreement, the CORPORATION shall make the following
payments to EMPLOYEE:
A. Cash compensation to be determined by the Board of Directors based upon
performance and available capital.
B. A payment of two hundred and fifty million (250,000,000) shares of
restricted common stock of CORPORATION. Such stock, along with other
holdings by EMPLOYEE shall be non-dilutive and shall at all times
during the term of this Agreement equal at least a seventy percent
(70%) ownership of CORPORATION.
C. EMPLOYEE shall be due an annual bonus as determined by the Compensation
Committee of the Board of Directors of CORPORATION. Such bonus may be
paid in cash or stock form as determined by the Compensation Committee
of the Board of Directors of CORPORATION. The CORPORATION shall not be
obligated to pay any bonus under this subparagraph.
1
5. EMPLOYEE BENEFITS. During the term of this Agreement, EMPLOYEE shall
receive and be entitled to participate in all benefits customarily offered
to or conferred upon other employees of the CORPORATION.
6. TERMINATION OF EMPLOYMENT.
A. Upon the occurrence of any of the following events and the expiration
of the period, if any, specified, this Agreement and the employment of
EMPLOYEE hereunder shall terminate:
(1) The death of EMPLOYEE.
(2) The expiration of a period of three (3) business days after the
delivery by EMPLOYEE of notice of resignation of EMPLOYEE as an
employee of the CORPORATION.
(3) The "disability" of EMPLOYEE. The term "disability", as used
herein, shall mean the inability or failure of EMPLOYEE, by reason
of any medically demonstrable physical or mental condition, to
perform his duties hereunder. The disability of EMPLOYEE shall be
deemed to have occurred if: (i) the issuer of any disability
income policy insuring EMPLOYEE shall have determined that
EMPLOYEE is disabled, whether partially or totally, within the
meaning of the provisions of such policy; (ii) EMPLOYEE shall be
absent from work for a period of sixty (60) consecutive business
days or two or more periods, each of which shall be of less than
sixty (60) business days but all of which in the aggregate shall
be of more than ninety (90) business days for any reason without
the written notice of the CORPORATION or (iii) the CORPORATION
shall have received written opinions from two duly licensed
physicians that EMPLOYEE, by reason of any medically demonstrable
physical or mental condition, is unable to perform his duties for
the foreseeable future or that the continued performance of his
duties will endanger his life.
(4) The misconduct of EMPLOYEE as evidenced by the following:
(a) The material breach by EMPLOYEE of any covenants of this
Agreement.
(b) The habitual neglect by EMPLOYEE of his duties as an
employee.
(c) The commission by EMPLOYEE of fraud, misappropriation,
embezzlement or the like.
(d) Any gross or lewd misbehavior, any material wrongdoing, any
criminal activity or the like on the part of the EMPLOYEE.
(5) A determination on the part of the Board of Directors of the
CORPORATION of the inability or failure of EMPLOYEE to perform his
duties hereunder in a reasonably satisfactory manner.
2
7. CONFIDENTIAL INFORMATION AND TRADE SECRETS. As consideration for and to
induce the employment of EMPLOYEE by the CORPORATION, EMPLOYEE hereby
covenants and agrees that:
A. All information relating to or used in the business and operation of
the CORPORATION including, but not limited to, data, records, computer
programs, manuals, processes, methods, marketing programs and
intangible rights and procedures, client and customer lists, and client
lead lists whether prepared, compiled, developed or obtained by
EMPLOYEE or by the CORPORATION prior to or during the term of this
Agreement and the employment of EMPLOYEE hereunder, are and shall be
confidential information and trade secrets which are the exclusive
property of the CORPORATION.
B. All programs, customer and clients lists, computer programs, manuals,
records, data and processes relating to or used in the business and
operations of the CORPORATION or of any of its customers and made,
first reduced to practice, devised or conceived by EMPLOYEE, alone or
with others, during the term of this Agreement and the employment of
EMPLOYEE hereunder, whether made, first reduced to practice, devised or
conceived during or outside of regular working hours, on or away from
the CORPORATION's premises or at the expense of the CORPORATION or of
EMPLOYEE or of any other person, are and shall be confidential
information and trade secrets which are the exclusive property of the
CORPORATION. EMPLOYEE further agrees that he shall promptly and fully
disclose and assign to the CORPORATION (or, if the CORPORATION shall
otherwise direct EMPLOYEE in writing, as so directed by the
CORPORATION) all rights and interests that he has or may have in and to
all such programs, lists, records and data. All such matters are and
shall be confidential information and trade secrets, which are the
exclusive property of the CORPORATION whether or not so disclosed or
assigned. EMPLOYEE shall fully cooperate with the CORPORATION and its
representatives in preparing, and shall execute, acknowledge and
deliver as directed by the CORPORATION, such instruments (including,
but not limited to, assignments, applications for copyrights, trade
names and trademarks) and take such other action as the CORPORATION may
deem necessary or appropriate to evidence of effect the provisions of
this paragraph.
C. All records, customer and client lists, programs, data, computer
programs and other materials relating to confidential information and
trade secrets which are the exclusive property of the CORPORATION,
including, without limitation, material in written form or in a form
produced or stored by any electrical or mechanical means or process,
whether prepared, compiled or obtained by EMPLOYEE or by the
CORPORATION or prior to or during the term of this Agreement and the
employment of EMPLOYEE hereunder, are and shall be the exclusive
property of the CORPORATION.
D. Except in the regular course of his employment by the CORPORATION
hereunder or as the CORPORATION may expressly authorize or direct in
writing, EMPLOYEE shall not, during or after the term of this Agreement
and of his employment hereunder copy, reproduce, disclose or divulge to
others, use or permit others to use any confidential information and
trade secrets which are the property of the CORPORATION, or any
records, client and customer lists, lead lists, data, computer
3
programs, other materials relating to any such confidential information
or trade secrets. EMPLOYEE further covenants and agrees that during the
term of this Agreement and his employment by the CORPORATION he shall
not remove from the custody and control of the CORPORATION any lists,
data, recorders, computer programs and other materials relating to such
confidential information and trade secrets and that upon termination of
this Agreement and of his employment he shall deliver the same to the
CORPORATION.
8. EQUITABLE REMEDIES. The parties acknowledge and agree that in the event of
a default or breach or of a threatened default or breach by EMPLOYEE of the
provisions of Section 7 and 8 of this Agreement, the CORPORATION shall
sustain irreparable injury and damages, the amount or extent of which
cannot be measured in money and for which there does not and shall not
exist any adequate remedy at law. Accordingly, each of the parties hereby
agrees that in the event of a fault or breach or of a threatened default or
breach by EMPLOYEE of the provisions of Section 7 and 8 of this Agreement,
the CORPORATION shall be entitled to immediate injunctive relief and to
specific performance and that in any legal action or proceeding for
injunctive relief and specific performance the EMPLOYEE or CORORATION shall
be deemed to have hereby waived, and shall not assert in such action or
proceeding, the defense or claim that the CORPORATION has an adequate
remedy at law or that an adequate remedy at law exists. The foregoing shall
not, however, be deemed to limit or restrict the remedies at law or in
equity of the CORPORATION for any default or breach or any threatened
default or breach of the provisions of this Agreement. The covenants
contained in this paragraph shall be construed as covenants independent of
any other provisions of this Agreement, and the existence of any claim or
cause of action by one party against the other shall not constitute a
defense to the enforcement thereof.
9. NOTICES. All notices, directions, consents, other communications to, upon,
and between the parties shall be in writing and shall be deemed to have
been given, delivered, made and received when sent or mailed by certified
mail, postage prepaid and return receipt requested, addressed to the
CORPORATION at its principal office and to EMPLOYEE at his residential
address as it appears on the employment records or the CORPORATION.
10. PRIOR AGREEMENTS. All prior agreements and understandings of every kind
between the parties regarding the employment of EMPLOYEE by the CORPORATION
are superseded by this Agreement and are hereby terminated.
11. EFFECT. This Agreement shall be binding on and inure to the respective
benefit of EMPLOYEE and the personal representative of EMPLOYEE and the
CORPORATION and its successor and assigns.
12. SEVERABILITY. The invalidity or unenforceability or any provision of this
Agreement shall not affect the validity or enforceability of any other
provision.
13. MODIFICATION. No provision of this Agreement, including the provision of
this paragraph, may be modified, deleted or amended in any manner except by
an Agreement in writing executed by each of the parties.
4
14. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned
by either party.
15. CONSTRUCTION. This Agreement is executed and delivered in the State of
Illinois and shall be construed and enforced in accordance with the laws of
such state.
16. ORIGINAL COPIES. This Agreement may be executed in more than one
counterpart, each of which shall be deemed an original and binding as
against the signator.
17. HEADINGS. The underlined headings herein are for convenience only and shall
not affect the interpretation of this Agreement.
18. ATTORNEYS' FEE. If either party brings an action to enforce his or its
rights under this Agreement, in addition remedies to which such party may
be entitled, the prevailing party shall be entitled to recover attorneys'
fees and costs.
WITNESS the following signatures as of the above written date.
CORPORATION: GFY FOODS, INC.
A Nevada corporation
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx, President and Sole Director
EMPLOYEE: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx
5
