EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective
as of July 2, 2001, by and between Xxxx Xxxxxx (the "Employee"), and Tessa
Complete Health Care, Inc. ("Company"), a Georgia corporation.
NOW THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Employment. The Company employs the Employee as its Vice President and
the Employee accepts such employment and agrees to perform his duties and
responsibilities in accordance with the terms and conditions of this
Agreement.
1.1 Duties and Responsibilities.
(a) The Employee agrees to devote his time and attention and best efforts
to competently and faithfully promote the interests of the Company in his
capacity as Vice President. As Vice President, the Employee shall report to
and be under the supervision and subject to the policies of the President
and the Board of Directors. Employee shall have such duties, authority and
responsibilities as are set forth for the Vice President in the Company's
By-laws and as may customarily inure to the office of the vice president of
a corporation.
(b) The Employee represents to Company that he is not subject to or a party
to any employment agreement, non-competition covenant, understanding or
restriction which would prohibit the Employee from executing this Agreement
and performing fully his duties and responsibilities hereunder, or which
would in any manner, directly or indirectly, limit or affect the duties and
responsibilities which may now or in the future be assigned to the Employee
by the Company or the scope of assistance to which he may now or in the
future provide to affiliates of the Company.
(c) Employee may provide services as a volunteer or director to charitable,
educational or civic organizations, act as a member, director or officer of
any industry trade association or group, and he may serve as a trustee,
director or advisor to any family companies or trusts, provided that such
service does not materially interfere with the performance of his duties to
the Company as required under this Agreement.
(d) Employee shall perform his job at Cincinnati, Ohio, and shall not be
required to work from any other location, except for reasonable travel
required by the Company's business which Employee is willing to accept.
1.2 Base Salary. For all of the services rendered by the Employee
hereunder, the Company shall pay Employee a salary of Two Thousand Dollars
($2,000.00) per month less withholdings required by law or agreed to by
Employee, commencing on July 2, 2001, and payable in installments at such
times as the Company customarily pays its other senior officers (but in any
event no less often than monthly). The Company agrees that the Employee's
base salary and performance will thereafter be reviewed at least once
annually, to determine if an increase in compensation is appropriate, which
increase shall be in the sole discretion of the Board.
1.3 Sign-on Bonus. The Company shall issue and deliver 12,500,000 fully
paid and non-assessable shares of its common stock to Employee as a sign-on
bonus. The Company shall use all reasonable and best efforts to promptly
prepare and file with the Securities and Exchange Commission a registration
statement on Form S-8 covering the resale of those shares
1.4 Stock Options. The Employee shall be entitled to participate in the
Company's Long Term Equity Incentive Plan (the "Plan"). On and subject to
the terms of an Award Agreement substantially in the form of Exhibit A
hereto and subject to the Plan, the Employee shall receive a grant of
options to acquire 5,000,000 shares of the Company's common stock pursuant
to the Plan with anti-dilution rights, at a strike price of $ .04 per share,
exercisable within five (5) years from July 2, 2001. Said options shall be
granted to Employee with "piggyback" registration rights to any shares
issued to Employee pursuant to Employee's exercise of said options.
Employee acknowledges that he shall have no "demand" registration rights
with respect to any shares issued to him pursuant to his exercise of said
options.
1.5 Expenses. The Company shall reimburse the Employee for ordinary,
reasonable and necessary business expenses incurred in the discharge of his
duties and responsibilities under this Agreement, within 30 days after
presentation of an itemized account and appropriate written proof of such
expenses in accordance with the Company's expense approval procedures in
effect from time to time.
1.6 Benefits. During the term of employment the Employee shall be provided
such benefits and be permitted to participate in all fringe benefit plans
made available to employees of the Company generally and to executives of
the Company which, from time to time at the Company's discretion may be
provided, including without limitation, health insurance, disability
insurance, life insurance and related benefits. The Employee shall be
entitled to up to 80 hours of vacation per year, to be taken in accordance
with the Company's vacation policy as it may be established or amended by
the Company from time to time.
1.7 Confidential Information. The Employee acknowledges that he will have
access to confidential information of the Company and its affiliates,
including, without limitation, information and knowledge pertaining to
research activities, products and services offered, inventions, innovations,
designs, ideas, plans, trade secrets, proprietary information, advertising,
sales methods and systems, sales, cost and profit figures, customer lists,
financing plans, acquisition or divestiture plans, and relationships between
the Company and its customers, suppliers and others who have had or will
have business dealings with the Company ("Confidential Information").
Employee acknowledges that such Confidential Information is a valuable and
unique asset of the Company. Employee covenants that he will hold
Confidential Information in trust for the benefit of the Company and will
not, either during or at any time after termination of employment with the
Company, disclose any such Confidential Information to, or use any such
Confidential Information for the benefit of, any person or entity other than
the Company and/or its affiliates for any reason whatsoever without the
prior written authorization of the Company's Board of Directors, except as
may be required by law or as may be required for the proper discharge of his
responsibilities to the Company. In the event that the Employee is subject
to a subpoena or other order of any governmental entity which might seek
disclosure of Confidential Information or otherwise required by law, the
Employee shall furnish a copy of such subpoena or order to the Company as
soon as practicable but in no event no later than seven (7) days after his
receipt of such subpoena or order. Confidential Information shall not
include (i) information known to Employee before he became employed by the
Company, (ii) information in the public domain or known generally in the
industry through no fault of Employee, and (iii) information that is not
treated by the Company as confidential or is disclosed by the Company to
third parties without a duty of confidentiality imposed on such third
parties.
1.8 Non-Interference. During Employee's employment and for a period of 6
months after termination (except in the event of termination for Good
Reason, as defined below), Employee will not, directly or indirectly: (i)
induce or solicit any person who is then employed by the Company to leave
that person's position; (ii) induce or solicit any supplier or vendor to the
Company to cease or materially adversely change its business relationship
with the Company; or (iii) participate or engage in any trade or commercial
disparagement of the business or operations of the Company and/or any other
related entity; and/or disparage the professional and/or personal lives of
any individual officer, director, or employee of the Company and/or its
related entities.
2. Term and Termination.
2.1 Generally. The term of this Agreement and Employee's employment for
the Company shall be for a term of one year, beginning as of the effective
date of this Agreement, and renewing daily, unless and until this Agreement
is sooner terminated pursuant to the provisions of this Section 2.
2.2 Notwithstanding the foregoing, this Agreement and the Employee's
employment hereunder may be terminated for any of the following reasons:
(a) The Company may terminate this Agreement for Cause (and termination
will be effective upon notice to the Employee or after the end of any
applicable cure period in clause (iii) below). "Cause" means: (i) the
Employee's indictment, or conviction for, or plea of nolo contendere to a
felony or other crime involving moral turpitude (excluding traffic offenses)
which has a material adverse effect on the Company or its business; (ii) the
Employee's dishonesty or misappropriation of funds; or (iii) failure of the
Employee to substantially comply with any of the lawful directives of the
Board of Directors of the Company where Employee has the Company resources
to comply, or to observe any material terms or provisions of this Agreement
or to discharge his fiduciary duties to the Company, where (if curable) such
failure is not corrected to the Company's reasonable satisfaction within
twenty (20) days after written notice from the Company to the Employee.
(b) The Company may terminate this Agreement as a result of the Employee's
Death or Disability (and termination will be effective upon the Employee's
Death or upon the Company's notification to Employee of its determination
that Employee is Disabled). "Disability" or "Disabled" means that the
Employee has suffered a disability from illness, accident or any other cause
and is unable to perform a substantial portion of his usual duties or
employment for a total (consecutive or cumulative) of 120 days in any 12
month period after the date the disability commenced.
(c) The Company may terminate this Agreement at any time Without Cause
("Termination by the Company Without Cause") and termination will be
effective upon the Company's notification to the Employee of Termination
Without Cause. "Termination by the Company Without Cause" means a
termination of this Agreement by the Company for any reason other than for
Cause, Death or Disability.
(d) The Employee may terminate this Agreement for Good Reason (and
termination will be effective after the end of the 30 day notice and cure
period). "Good Reason" means that any of the following events has occurred
(other than as a result of an event that would be grounds for a termination
for Cause, or for Death or Disability) and has not been corrected within 30
days after Employee's notice to the Company: (i) the failure to continue
Employee as Vice-President of the Company, (ii) a material reduction to the
Employee's total duties and responsibilities as Vice-President of the
Company; (iii) a reduction of Employee's annual base salary; (iv) a
requirement by the Company or the Board that the Employee be relocated to a
Company office more than 20 miles from the Employee's office located in
Cincinnati, Ohio, or (v) a material breach by the Company of any of the
terms of this Agreement.
(e) The Employee may terminate this Agreement upon the occurrence of a
Change of Control; provided that the Employee gives the Company at least 30
days prior written notice of Employee's intention to terminate for that
reason (and termination will be effective at the end of the 30-day period).
A "Change of Control" with respect to the Company shall be deemed to have
occurred at the time of the earliest to occur of the following: (i) any
"person" as such term is used in Sections 13(d) and 14(d) of Securities
Exchange Act of 1934, as amended (the "Exchange Act") (other than the
Company, any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any company owned, directly or indirectly,
by the share owners of the company in substantially the same proportions as
their ownership of stock of the Company), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding
securities; (ii) the share owners of the Company approve a merger or
consolidation of the Company with any other company, other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or (B) a merger or consolidation
effected to implement a change of domicile or recapitalization of the
Company (or similar transaction) in which no "person" (as defined in
subsection (i) above) acquires more than 50% of the combined voting power of
the Company's then outstanding securities; or (iii) the share owners of the
Company approve a plan of liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets.
(f) The Employee may terminate this Agreement at any time Without Cause
("Termination by the Employee Without Cause") by providing 30 days written
notice to Company of Termination by the Employee Without Cause.
"Termination by the Employee Without Cause" means a termination of this
Agreement by the Employee for any reason other than for Good Reason or
Change of Control.
2.3 Consequences of Termination.
(a) Upon a termination of this Agreement for Cause, as a result of Death or
Disability, Without Cause (whether by Employer or Employee), for Good Reason
or as a result of a Change of Control, the Company will be obligated to pay
the Employee's base salary, unreimbursed business expenses and earned but
unused vacation through the effective date of termination, but the Company
will have no other obligations to the Employee except to the extent required
by law and this Agreement.
(b) Upon a termination of this Agreement as a result of Death or
Disability, Termination Without Cause by Employer, for Good Reason or as a
result of a Change of Control, the Company will pay Employee the Separation
Payment; provided, however, it is a condition precedent to the Company's
obligation to pay, and the Employee's right to receive, the Separation
Payment that the Employee has executed and delivered a release to the
Company releasing Company from all claims, known and unknown, arising from
employment. The "Separation Payment" shall be a payment of Six Thousand
Dollars ($6,000.00), less applicable withholding, payable within five (5)
days of the termination of this Agreement. The Employee shall also be
entitled, on and subject to the terms of an Award Agreement substantially in
the form of Exhibit A hereto and subject to the Plan, to receive a grant of
options to acquire 5,000,000 shares of the Company's common stock pursuant
to the Plan, with anti-dilution rights, at a strike price of $ .04 per
share, exercisable within five (5) years from the date of termination of
this Agreement. Said options shall be granted to Employee with "piggyback"
registration rights to any shares issued to Employee pursuant to Employee's
exercise of said options. Employee acknowledges that he shall have no
"demand" registration rights with respect to any shares issued to him
pursuant to his exercise of said options.
(c) Employee shall not be required to mitigate any loss or damage he incurs
as a result of the termination of his employment because of Disability,
Termination by the Company Without Cause, for Good Reason or a Change of
Control, and the amount of any payment the Company is obligated to make
hereunder shall not be reduced by the amount Employee may receive from any
other source. If Employee prevails in any claim he brings in arbitration to
enforce Employee's rights under this Section 2, the Company shall pay all
reasonable attorneys fees and expenses Employee incurs in connection with
such action.
(d) Upon termination of this Agreement for any reason, Employee shall be
deemed to have resigned as an officer and director of the Company, as a
trustee of any employee benefit plans and from any other official capacity
in connection with the Company or its business.
(e) Upon termination or expiration of this Agreement, regardless of the
reason, the Employee shall return to the Company all Company property in the
Employee's possession or under Employee's control, including without
limitation, all Confidential Information.
3. Arbitration. In the event of any controversy, dispute or claim arising
out of or related to this Agreement or the Employee's employment by the
Company, the controversy, dispute or claim, shall be finally resolved by
binding arbitration, conducted in Cincinnati, Ohio, in accordance with the
National Rules of the American Arbitration Association governing employment
disputes.
4. Miscellaneous.
4.1 The Company agrees to fully defend, indemnify ad hold Employee harmless
against all claims, demands, causes of action or lawsuits which may arise
and which relate to or arise out of his services as Vice President of the
Company, whether such claims, demands, causes of action or lawsuits are made
when Employee is employed by the Company or thereafter. The Company agrees
to maintain Directors and Officers insurance coverage covering Employee,
with limits of at least Two Million Dollars ($2,000,000.00) at all times.
4.2 This Agreement shall be governed by and interpreted under the laws of
the State of Ohio, without giving effect to the principles of conflicts of
laws thereof. Words of the masculine, feminine or neuter gender shall mean
and include the correlative words of other genders. The headings in this
Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof. Unless the context otherwise requires,
references in this Agreement to any gender shall be construed to include all
other genders; references in the singular shall be construed to include the
plural, and references in the plural shall be construed to include the
singular; and the word "including" shall be construed to mean "including
without limitation."
4.3 This Agreement (including the Award Agreement and Plan) constitutes the
entire understanding agreement between the parties concerning the subject
matter hereof supersedes all prior discussions, representations and
agreements (written or oral) concerning such subject matter, none of which
prior matters shall be binding upon the parties. This Agreement may not be
changed, modified, extended or terminated except upon written amendment
executed by the Employee and by the duly appointed representative of the
Board of Directors of the Company. Employee acknowledges that from time to
time the Company or its affiliates may establish, maintain and distribute
employee manuals or handbooks or personnel policy manuals, and officers or
other representatives of the Company may make written or oral statements
relating to personnel policies and procedures. Such manuals, handbooks and
statements are intended only for general guidance. No policies, procedures
or statements of any nature by or on behalf of the Company (whether written
or oral, and whether or not contained in any employee manual or handbook),
and no acts or practices of any nature, shall be construed to modify this
Agreement or to create express or implied obligations of any nature to the
Employee or to impose any such obligations on the Employee in conflict with
or in any manner inconsistent with the provisions of this Agreement.
4.4 All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall
be deemed to have been given when hand-delivered, mailed by registered or
certified mail (three days after deposited), faxed (with confirmation
received) or sent by a nationally recognized courier service, as follows
(provided that notice of change of address shall be deemed given only when
received) to the parties at their addresses beneath their signatures on the
signature page hereof or to such other names and addresses as the Company or
the Employee, as the case may be, shall designate by notice to each other
person entitled to receive notices in the manner specified in this Section.
4.5 All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs,
executors, administrators, legal representatives, successors and assigns of
the parties hereto, except that the duties and responsibilities of the
Employee hereunder are of a personal nature and shall not be assignable or
delegable in whole or in part by the Employee, and the Company may not
transfer or convey its rights hereunder to any third party other than an
affiliate of the Company without the prior express written consent of the
Employee.
4.6 If any provision of this Agreement or application thereof to any person
or circumstance is held invalid or unenforceable in any jurisdiction, the
remainder of this Agreement shall not be affected thereby and the provisions
hereof shall be severable. Any such invalid or unenforceable portion shall
be deemed modified to the minimum extent necessary to be valid and shall be
enforced as so modified.
4.7 No remedy conferred upon the Company or the Employee by this Agreement
is intended to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity. Except as
specifically provided in this Agreement, no delay or omission by the Company
or by the Employee in exercising any right, remedy or power hereunder or
existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by the Company or by the
Employee from time to time and as often as may be deemed expedient or
necessary by the Company or by the Employee in their sole discretion.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Employment Agreement to be effective as of the date first
set forth above.
EMPLOYEE:
______________________________________
XXXX XXXXXX
EMPLOYER:
TESSA COMPLETE HEALTH CARE, INC.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxx, Xxxxxxxx 00000
___________________________________
XXXXX X. XXXXX
President, CEO & Director
__________________________________
XXXX XXXXX
Director
