EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into by and
between UNISERVICE CORPORATION, a corporation organized and existing under the
laws of the State of Florida and having its executive offices at 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Company"), and XXXXXXXX XXXXXXX,
whose address is Xxxxxxxxxx #00, Xxxxxx 0000, Xxxxxxxx, Xxxxx ("Xx. Xxxxxxx") on
January 5, 1998, but shall be effective as of the effective date of the initial
public offering of the Company's securities ("Effective Date") pursuant to a
registration statement filed with the Securities and Exchange Commission on Form
SB-2 ("IPO").
W I T N E S S T H:
WHEREAS, Xx. Xxxxxxx is currently serving as Vice President of
Administration and Finance and Director of KFC Chile, S.A. and
WHEREAS, the Company desires to secure for itself the availability of
Xx. Xxxxxxx'x services; and
WHEREAS, for purposes of securing for the Company Xx. Xxxxxxx'x
services, the Board of Directors of the Company ("Board") has approved and
authorized the execution of this Agreement with Xx. Xxxxxxx on the terms and
conditions set forth herein; and
WHEREAS, Xx. Xxxxxxx upon the Effective Date is willing to make his
services available to the Company on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the Company and Xx. Xxxxxxx
hereby agree as follows:
SECTION 1. EMPLOYMENT
The Company hereby agrees to the employment of Xx. Xxxxxxx and Xx.
Xxxxxxx hereby agrees to such employment during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD
Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Employment Period") established under this Section 2. The
Employment Period shall be for a term of one (1) year commencing on the
Effective Date and shall automatically be extended for each successive year
thereafter unless (i) the parties mutually agree in writing to alter or amend
the terms of the Agreement; or (ii) one or both of the parties exercises their
right, pursuant to this Agreement, to terminate this employment relationship.
Upon the Effective Date, the employment agreement between Kentucky Foods Chile,
S.A. and Xx. Xxxxxxx then in effect shall terminate and has no further force or
effect.
SECTION 3. DUTIES
Xx. Xxxxxxx shall serve as Chief Financial Officer and a Director of
the Company. Xx. Xxxxxxx'x responsibilities, duties and authority as Chief
Financial Officer and a Director of the Company shall, subject to the direction
of the Board and the By-laws of the Company and any applicable provisions of the
Florida Business Corporation Act ("Corporation Act"), be those commonly
associated with such position and shall include, but shall not be limited to,
the employment, general supervision and direction of all operating officers, the
employment, general supervision and direction of the Company's personnel and
planning for the Company's long-term needs and objectives. Xx. Xxxxxxx shall be
responsible for the general supervision and management of the business affairs
of the Company, and, under authority given to him by the Board, shall execute
documents in the name of the Company and do such other official acts on behalf
of the Company as are appropriate and permitted by the By-laws of the Company.
Xx. Xxxxxxx shall serve as Chief Financial Officer and a Director of any and all
subsidiaries hereafter created by the Company during the Employment Period
without additional compensation therefor.
SECTION 4. COMPENSATION
(a) BASE SALARY. In consideration for the services rendered by Xx.
Xxxxxxx under this Agreement, the Company shall pay to Xx Xxxxxxxx a salary at
an annual rate equal to Sixty Thousand Dollars ($60,000.00). The annual salary
payable under this Section 4(a) shall be paid in approximately equal
installments in accordance with the Company's customary payroll practices.
(b) BONUSES. In addition to the salary provided under Section 4(a), Xx.
Xxxxxxx shall be entitled to receive a bonus of up to $30,000 (initially for the
first year of this Agreement of up to $30,000), at the times and in the amounts
and determined in such reasonable manner as may be prescribed by the Board from
time to time.
(c) ADDITIONAL ANNUAL COMPENSATION. In addition to the salary provided
under Section 4(a) and the Bonuses provided under Section 4(b), Xx. Xxxxxxx
shall be entitled to receive additional annual compensation of $20,000 which
includes (i) $10,000 for medical reimbursement, and (ii) $10,000 for automobile
expenses.
(d) ISAPRE. In addition to the compensation described in Sections 4(a),
(b) and (c) above, Xx. Xxxxxxx shall also be entitled to receive social security
benefits pursuant to Chilean law including without limitation, to the
Institutions and Provisional Health (ISAPRE) and Administrators of Pension Funds
(AFP).
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS
(a) Xx. Xxxxxxx shall be entitled to a minimum of two (2) weeks of paid
vacation in each calendar year, all of which shall be deemed accrued, earned and
available for use on the first day of the year.
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(b) Except as otherwise provided in this Agreement, Xx. Xxxxxxx shall,
during the Employment Period, be entitled to participate in and receive benefits
under the Company's group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans, and
such other employee benefit plans and programs, including, but not limited to,
any pension plans, incentive compensation plans or programs (whether or not
employee benefit plans or programs), and any stock option and appreciation
rights plan, employee stock ownership plan and restricted stock plan, as may
from time to time be maintained by, or cover executive and/or employees of, the
Company, in accordance with the terms and conditions of such benefit plans and
programs and compensation plans and programs and with the Company's customary
practices.
SECTION 6. TERMINATION.
a. TERMINATION WITHOUT CAUSE. Subject to the provisions of
Section 6 and 7 of this Agreement, Xx. Xxxxxxx'x employment with the Company may
be terminated by either party upon ninety (90) days prior written notice of the
terminating party's intent to terminate Xx.
Xxxxxxx'x employment with the Company.
b. TERMINATION BY THE COMPANY FOR CAUSE.
(1) Nothing herein shall prevent the Company from
terminating Xx. Xxxxxxx'x employment immediately for "Cause," as
hereinafter defined. Any rights and benefits Xx. Xxxxxxx may have in
respect of any compensation shall be determined in accordance with the
terms of such other compensation arrangements or such plans or
programs.
(2) "Cause" shall mean and include those actions or
events specified below in subsections (A) through (G) to the extent the
same occur, or the events constituting the same take place, subsequent
to the date of execution of this Agreement: (A) Failing, neglecting or
refusing to perform in any material respect any of Xx. Xxxxxxx'x duties
hereunder at the time; (B) Committing or participating in an injurious
act of fraud, gross neglect or embezzlement against the Company; (C)
committing or participating in any other injurious act or omission
wantonly, willfully, recklessly or in a manner which was grossly
negligent against the Company, monetarily or otherwise; (D) engaging in
a criminal enterprise involving moral turpitude; (E) conviction of an
act or acts constituting a felony under the laws of the United States
or Chile or any state or province thereof; (F) the death of Xx.
Xxxxxxx; or (G) "disability" of Xx. Xxxxxxx, as defined in Section
6(b)(4). No actions, events or circumstances occurring or taking place
at any time prior to the date of this Agreement shall in any event
constitute or provide any basis for any termination of this Agreement
for Cause;
(3) Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been terminated
for Cause unless and until there shall have been delivered to Xx.
Xxxxxxx a notice of termination stating that Xx. Xxxxxxx
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committed one of the types of conduct set forth in Section 6(b)(2) of
this Agreement and specifying the particulars thereof.
(4) For the purposes of this Agreement, Xx. Xxxxxxx
shall be deemed to have become disabled if, because of ill health,
physical or mental disability or for other causes beyond Xx. Xxxxxxx'x
control, Xx. Xxxxxxx shall have been unable or shall have failed to
perform his duties hereunder for a cumulative total of 180 days in any
twelve-month period, or if he shall have been unable or shall have
failed to perform his/her duties for sixty (60) or more consecutive
days.
SECTION 7. CONFIDENTIALITY PROPRIETARY INFORMATION
(a) Unless he obtains the prior written consent of the Company (which
consent shall not be unreasonably withheld), Xx. Xxxxxxx shall keep confidential
and shall refrain from using for the benefit of any person or entity other than
the Company or any entity which is a subsidiary of the Company or of which the
Company is a subsidiary, any material document or information obtained from the
Company, or from its parent or subsidiaries, in the course of his employment
with any of them concerning their properties, operations or business (unless
such document or information is readily ascertainable from public or published
information or trade sources or has otherwise been made available to the public
through no fault of his own) until the same ceases to be material (or becomes so
ascertainable or available); provided, however, that nothing in this Section 7
shall prevent Xx. Xxxxxxx, with or without the Company's consent, from
participating in or disclosing documents or information in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or disclosure is required under applicable law.
(b) Xx. Xxxxxxx acknowledges that during the course of his employment
with the Company he may develop or otherwise acquire papers, files or other
records involving or relating to confidential or secret processes, formulas,
discoveries, inventions, machinery, plans, design information of any kind,
devices, material, research, new product development, customers or customer
lists. All such papers, files and other records shall be the exclusive property
of the Company and shall, together with any and all copies thereof, be returned
to the Company upon Xx Xxxxxxxx'x termination of employment.
SECTION 8. SOLICITATION
Xx. Xxxxxxx hereby covenants and agrees that in the event of his
termination of employment with the Company prior to the expiration of the
Employment Period, for a period of one (1) year following his termination of
employment with the Company (or, if less, the remaining unexpired Employment
Period), he shall not, without the written consent of the Company, either
directly or indirectly:
(a) solicit, offer employment to, or take any other action intended, or
that a reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or
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employee of the Company (other than a member of Xx. Xxxxxxx'x family) or any
subsidiary of the Company to terminate his or her employment and accept
employment or become affiliated with, or provide services for compensation in
any capacity whatsoever to, any entity that directly or indirectly competes with
this Company in any market area in which it is then active;
(b) provide any information, advice or recommendation with respect to
any officer or employee of the Company (other than a member of Xx. Xxxxxxx'x
Family) or any subsidiary of the Company to any entity engaged or to be engaged
in the same or competing business with the Company that is intended, or that a
reasonable person acting in like circumstances would expect, to have the effect
of causing any such officer or employee to terminate his or her employment and
accept employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any entity that directly or
indirectly competes with the Company in any market area in which it is then
active; provided, however, that nothing in this Section 8(b) shall be construed
as prohibiting Xx. Xxxxxxx from serving as a reference if so requested by an
officer or employee of the Company or subsidiary of the Company;
(c) solicit, provide any information, advice or recommendation or take
any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of the
Company with which Xx. Xxxxxxx has had substantial contact to terminate an
existing business or commercial relationship with the Company.
SECTION 9. INDEMNIFICATION AND ATTORNEYS' FEES
The Company shall provide Xx. Xxxxxxx with payment of legal fees and
indemnification to the maximum extent permitted from time to time by the
Corporation Act or other applicable laws or regulations. Xx. Xxxxxxx shall
continue to be covered by the Articles of Incorporation and/or the Bylaws of the
Company with respect to matters occurring on or prior to the date of termination
of Xx. Xxxxxxx'x employment with the Company, subject to all the provisions of
Florida and Federal law and the Articles of Incorporation and Bylaws of the
Company then in effect. The Company shall indemnify and hold harmless Xx.
Xxxxxxx against reasonable costs, including, without limitation, legal fees and
expenses, incurred by him in connection with or arising out of any action, suit
or proceeding in which he may be involved to defend or enforce the terms of this
Agreement, without regard to whether Xx. Xxxxxxx is the prevailing party in such
action, suit or proceeding. Such reasonable expenses, including attorneys' fees
that may be covered by the Articles of Incorporation and/or Bylaws of the
Company shall be paid by the Company on a current basis in accordance with such
provision, the Company's Articles of Incorporation and applicable law. To the
extent that any such payments by the Company pursuant to the Company's Articles
of Incorporation and/or Bylaws may be subject to repayment by Xx. Xxxxxxx
pursuant to the provisions of the Company's Articles of Incorporation or Bylaws,
or pursuant to applicable law, such repayment shall be due and payable by Xx.
Xxxxxxx to the Company within twelve (12) months after the termination of all
proceedings, if any, which relate to such repayment and to the Company's affairs
for the period prior to the date of termination of Xx. Xxxxxxx'x employment with
the Company and as to which Xx. Xxxxxxx has been covered by such applicable
provisions
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SECTION 10. EXCISE TAX
(a) If, in connection with the termination of Xx. Xxxxxxx'x employment,
Xx. Xxxxxxx shall be liable for the payment of an excise tax under Section 4999
of the Code with respect to any payment of money or property made by the
Company, the Company shall pay to Xx. Xxxxxxx an amount to indemnify Xx. Xxxxxxx
against such excise tax and against any additional income and excise taxes
imposed on him as a result of such indemnification. With respect to any payment
that is made to Xx. Xxxxxxx under the terms of this Agreement in the year of his
termination of employment and on which an excise tax under Section 4999 of the
Code will be assessed, the payment determined under this Section 10(a) shall be
made to Xx. Xxxxxxx not later than thirty (30) days following his termination of
employment. With respect to any payment made under the terms of this Agreement
in any other year and on which an excise tax under Section 4999 of the Code will
be assessed, the payment under this Section 10(a) shall be made to Xx. Xxxxxxx
not later than December 31 st of the year in which the payment on which such
excise tax will be assessed is made to Xx. Xxxxxxx or, if earlier, the date on
which such tax is required to be remitted to the Internal Revenue Service The
payments made by the Company under this Section 10(a) shall be determined by the
Company on the basis of advice from the firm of independent certified public
accountants regularly retained by the Company to audit its books and shall be
subject to subsequent adjustment as provided in Section 10(b).
(b) In the event that Xx. Xxxxxxx'x liability for the excise tax under
Section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount paid for such year pursuant to Section 10(a), Xx
Xxxxxxxx or the Company, as the case may be, shall pay to the other party at the
time that the amount of such excise tax is finally determined, an appropriate
amount, plus interest, such that the payment made under Section 10(a), when
increased by the amount of the payment made to Xx. Xxxxxxx under this Section
10(b) by the Company, or when reduced by the amount of the payment made to the
Company under this Section 10(b) by Xx. Xxxxxxx, equals the amount finally
determined to have been properly payable to Xx. Xxxxxxx under Section 10(a). The
interest paid under this Section 10(b) shall be determined at the rate provided
under Section 1274(b)(2)(B) of the Code. To confirm that the proper amount, if
any, was paid to Xx. Xxxxxxx under this Section 15, Xx. Xxxxxxx shall furnish to
the Company a copy of each tax return which reflects a liability for an excise
tax payment under Section 4999 of the Code with respect to a payment made by the
Company, at least twenty (20) days before the date on which such return is
required to be filed with the Internal Revenue Service. If Xx. Xxxxxxx fails to
furnish any such return by the prescribed date, then (i) the Company's payment
obligation hereunder shall be deferred until twenty (20) days after the date on
which such return is actually furnished and (ii) the Company shall have no
liability to indemnify Xx. Xxxxxxx against any excess tax payment which the
Company reasonably believes to have been made in error.
SECTION 11. SUCCESSORS AND ASSIGNS; SURVIVORSHIP
This Agreement will inure to the benefit of and be binding upon Xx.
Xxxxxxx, his legal representatives, heirs and assigns, and the Company, its
respective successors and assigns,
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including any successor by merger or consolidation or a statutory receiver or
any other person or firm or corporation to which all or substantially all of the
respective assets and business of the Company may be sold or otherwise
transferred.
SECTION 12. WAIVER
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 13. NOTICES
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to Xx. Xxxxxxx:
Xxxxxxxxxx #00, Xxxxxx 0000
Xxxxxxxx, Xxxxx
If to the Company:
Uniservice Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
with copy to:
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx,Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
SECTION 14. SEVERABILITY
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A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 15. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
SECTION 16. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida, without reference to conflicts
of law principles.
SECTION 17. HEADINGS AND CONSTRUCTION
The headings of Sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any Section. Any
reference to a Section number shall refer to a Section of this Agreement, unless
otherwise stated.
SECTION 18. SURVIVAL
The rights and obligations of the Company and Xx. Xxxxxxx under
Sections 7, 8, 9 and 10 of this Agreement shall survive the termination or
expiration of this Agreement, notwithstanding anything contained herein to the
contrary.
SECTION 19. EQUITABLE REMEDIES
The Company and Xx. Xxxxxxx hereby stipulate that monetary damages
shall be an inadequate remedy for violations of Sections 7, 8, 9 and 10 of this
Agreement and agree that equitable remedies, including, without limitation, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
SECTION 20. ENTIRE AGREEMENT, MODIFICATIONS
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and Xx. Xxxxxxx has hereunto set his hand, all as of the day and year
first above written.
__________________________________
XXXXXXXX XXXXXXX
ATTEST: UNISERVICE CORPORATION
By:________________________________ By:_______________________________
Secretary Name:
Title:
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