Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 8th day of July, 2004, by and between Galaxy
Nutritional Foods, Inc., a Florida corporation (the "Corporation"), and Xxxxxxx
X. Xxxxx (the "Employee"),
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Corporation desires to hire Employee as its Chief
Executive Officer; and,
WHEREAS, Employee is willing to be employed by the Corporation.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. Employment. The Corporation hereby employs Employee as its Chief
Executive Officer whose primary duties shall include, but not be limited to,
oversight and management of the operations of the Company and preparation and
coordination of Company budgets. Employee hereby accepts such employment and
agrees to perform the foregoing and such other duties as are customarily
performed by one holding such position in other, same or similar businesses as
that engaged in by the Corporation and to render any such other services and
duties as may be assigned from time to time by the Corporation.
2. Performance of Employee's Duties. The Employee agrees to devote his
full time to the faithful performance of his duties for the Corporation and to
render service to the Corporation to the best of his ability, experience and
talent to the satisfaction of the Corporation. Such duties shall be rendered at
such place or places in Central Florida, as the Corporation shall require in
accordance with the best interests, needs, business and opportunities of the
Corporation.
3. Term of Employment. The term of employment shall be for a period of
one year, commencing on July 8, 2004, and expiring on the first anniversary
thereof. The Term shall automatically renew for successive one year periods
unless either party gives the other written notice at least 90 days prior to the
end of the then Term of this Agreement that such party does not desire to renew
this Agreement.
4. Compensation.
a. The Corporation agrees to pay Employee and Employee agrees to
accept from the Corporation, in full payment for Employee's services hereunder,
base salary at the rate of Two Hundred Thousand DOLLARS ($200,000) per year
payable in equal semi-monthly installments or in accordance with the
Corporation's normal pay practices as may be altered from time to time by
Corporation subject to customary payroll deductions.
b. The Corporation shall reimburse Employee for approved business
travel expenses in accordance with Company policy.
c. Employee shall be eligible to participate in the Corporation's
performance based compensation program offered to other executive level
employees effective as of the Corporation's fiscal year beginning April 1, 2005.
The Board in its sole discretion may grant a performance bonus to Employee for
the period of Employee's service prior to April 1, 2005.
5. Other Benefits.
a. The Corporation shall provide Employee with such benefits and
business expenses as are provided to other executive level employees of the
Corporation, including, but not limited to insurance for health, disability and
dental insurance.
b. The Corporation shall reimburse Employee's reasonable costs of
lodging in Orlando, Florida for one year commencing on the date of this
Agreement as agreed to between the parties and for expenses related to such
lodging, but such related expenses shall not exceed $500 per week.
c. Corporation shall provide Employee with an automobile allowance
of $1500 per month which shall be for the purpose of covering all of Employee's
automobile expenses.
6. Death, Incapacity or Illness of Employee.
a. If Employee dies during the term of this Agreement, the
Corporation shall pay to the estate of the Employee only the base salary which
would otherwise be payable to the employee through the date of death. Except as
herein provided, the death of Employee shall terminate this Agreement and
discharge the Corporation from any further liability for the payments provided
herein.
b. In the event Employee becomes disabled, ill or unable to perform
the essential functions of his job under this Agreement, this Agreement shall
terminate as of the date Employee ceases to perform services hereunder.
7. A. Termination for Cause. The Corporation may terminate this
Agreement immediately without liability or further obligation hereunder upon
written notice to Employee if the Employee commits any one or more of the
following acts:
i. Willful and substantial damaging of the Corporation's
property, business, reputation or goodwill;
ii. Commission of a felony;
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iii. Theft, dishonesty, fraud or embezzlement;
iv. The use of alcohol, narcotics or other controlled
substances to the extent that it prevents the Employee from efficiently
performing services for the Corporation;
v. Willfully injuring another employee of the Corporation;
vi. Willfully injuring any person in the course of performance
of services for the Corporation;
vii. Disclosing to a competitor or other unauthorized persons
confidential or proprietary information or secrets of the Corporation;
viii. Solicitation of business on behalf of a competitor or a
potential competitor;
ix. Sexual harassment of any other employee of the Corporation
or the commission of any act which otherwise creates an offensive work
environment for other employees of the Corporation;
x. Failure of Employee for any reason other than death,
disability or illness within ten days after receipt by Employee of written
notice thereof from the Corporation, to correct, cease or otherwise alter any
insubordination, failure to comply with instructions or other act or omission to
act that in the opinion of the Corporation does or may adversely affect its
business or operations; or
xi. Failure of Employee to substantially comply with any
provision of the Corporation's policy manual as it applies to Employee;
Corporation shall not be limited to termination as a remedy for any
improper or illegal act of Employee, but may also seek damages, injunction or
such other remedy as it may deem appropriate under the circumstances.
B. Termination Without Cause. In the event Corporation terminates
Employee's service hereunder without cause, Employee shall be entitled to
receive one year of Employee's base salary as wages in lieu of notice payable at
the option of Corporation in a lump sum or over a period of one year on
Corporation's normal payroll dates and subject to typical payroll deductions.
Notice of nonrenewal pursuant to paragraph 3 above, shall not constitute
termination without cause for purposes of this provision.
8. Merger or Sale of Corporation. In the event of the sale, merger or
consolidation of the Corporation, Employee agrees that Corporation may assign
its rights and obligations hereunder to its successor or purchaser.
9. Limitations on Other Employment. During the term hereof, Employee
shall not enter into the services of or be employed in any capacity or for any
purposes whatsoever, whether directly or indirectly, by any person, firm,
corporation or entity other than Corporation, and will not, during said period
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of time, be engaged in any business, enterprise or undertaking other than
employment by the Corporation. However, nothing contained herein shall prohibit
Employee from investing or trading in stocks, bonds, commodities, or other
securities or forms of investments including real estate for his own personal
account.
10. Reimbursement of Disallowed Compensation and Expenses. In the event
any compensation or reimbursement of expenses paid to Employee or expenses for
Employee shall upon audit or other examination of the income tax returns of the
Corporation be determined not to be an allowed deduction from the gross income
of the Corporation, and such determination shall be accepted by the Corporation
or shall be rendered final by the appropriate state or federal taxing authority
or by a judgment of a court of competent jurisdiction and no appeal shall be
taken therefrom or the applicable period for filing notice of appeal shall have
expired, then, in such event, Employee will repay to the Corporation the amount
of disallowed compensation or expenses or both from Employee's future salary
payments. This duty of repayment may not be waived by the Corporation, but any
repayment by Employee to the Corporation pursuant to this provision is limited
to the remaining future salary payments due to Employee pursuant to this
Agreement at that time, from which the Corporation shall have the right to
withhold such remaining unpaid future salary payments in one or more
installments, until the amount allowed to the Corporation has been recovered in
full or the remaining future salary payments due to Employee pursuant to this
Agreement is exhausted.
11. Assignment of Proprietary Information. Except as may be required in
the course of employment by the Corporation, Employee agrees that any and all
proprietary information, as hereinafter defined, which Employee has made,
conceived of, developed or originated, either individually or jointly with any
other person or persons at any time during the period of employment by the
Corporation, or during a period of one year after termination or expiration of
said employment, whether during working hours or any other time, which relate in
any way to the business or the type of business now or hereafter engaged in or
contemplated by the Corporation during the period of Employee's employment or
which result from or may be suggested by any work Employee does for the
Corporation or at the Corporation's request, shall be the property of the
Corporation. As used herein, "Proprietary Information" shall mean any and all
proprietary property including but not limited to all techniques, processes,
devices, charts, manuals, payroll, and improvements thereto together with the
names and identities of all clients and prospective clients, price lists,
suppliers and all other information or materials which the Corporation may from
time to time designate and treat as confidential and proprietary or as a trade
secret.
Employee shall promptly disclose and assign and does hereby assign such
Proprietary Information to the Corporation's representatives and do all such
acts, and execute and deliver all such documents, as may be necessary to vest in
the Corporation the title to all such Proprietary Information and enable the
Corporation to properly prepare and prosecute any and all applications for
patents, trademarks or copyrights thereon as well as all reissues, renewals and
extensions thereof, so that the Corporation shall be the sole and absolute owner
of all right, title and interest in said proprietary property. It is understood
and agreed that the words "which relate in any way to the business or the type
of business now or hereafter carried on or contemplated by the Corporation"
shall properly cover any reasonable development or extension of the
Corporation's field of operation. These obligations shall continue beyond the
termination or expiration of Employee's employment with respect to inventions,
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discoveries and developments conceived or made by Employee during the period of
employment and shall be binding on Employee's assigns, executors, heirs,
administrators and other legal representatives. Employee agrees that all
correspondence, drawings, reports, ideas, blueprints, manuals, letters, notes,
analyses, notebooks, reports, charts, programs, proposals or any other documents
concerning the Corporation's customers or products or processes, whether or not
prepared by and in the course of employment, alone or in conjunction with
others, is the property of the Corporation and upon termination or expiration of
employment for any reason, Employee shall promptly return to the Corporation any
such documents in his possession, custody or control.
12. Information and Testimony. Employee will, without expense to
himself, give such true information and testimony under oath if requested, as
may be requested of him by the Corporation relative to any Proprietary
Information that is subject to disclosure to the Corporation under the terms
hereof.
13. Proprietary Information. Employee agrees that he will not at any
time during or after the termination or expiration of his employment, except as
authorized or directed in writing by the Corporation, use for Employee's own
benefit, copy, reveal, sell, divulge or make known in any manner to any person,
firm or corporation the contents of any unique and confidential methods,
inventions, systems, processes, formula, design, concepts, techniques, and
devices of the Corporation, whether or not owned by the Corporation, whether the
same shall or may have been originated, discovered or otherwise created by
Employee or the methods, processes or manner of the creation and sale of
products or services provided by, sold or leased by the Corporation, all
sometimes referred to as "trade secrets".
Employee further agrees not to reveal, divulge or make known to any
person, firm or corporation the name of any of the Corporation's clients, price
lists, financial information, suppliers or any secret, trade secret or other
Proprietary Information whatsoever in connection with the Corporation, its
business or its clients or anything pertaining thereto except as reasonably
necessary to the performance of Employee's duties.
Employee understands that if, either during employment or thereafter,
he discloses to others, uses for his own benefit or for the benefit of any
person or entity other than the Corporation, copies or makes notes of any such
trade secrets, information or facilities, such conduct will constitute a breach
of the confidence and trust bestowed upon Employee by the Corporation and will
be a breach of this Agreement.
Employee further agrees that he is under no obligation to any former
employer which is in any way inconsistent with this Agreement or which imposes
any restriction on behalf of the Corporation. The Employee also acknowledges
that he has been instructed that during the term of employment by the
Corporation, he is not to divulge to the Corporation, its employees or its
consultants any confidential information obtained from any previous employers or
any other person.
14. Return of Records and Property. On termination or expiration of
employment, Employee shall deliver all records, files, notes, data, memoranda,
models, and equipment of any nature that are in Employee's possession or under
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his control and that are the property of the Corporation or relate to his
employment or to the business of the Corporation.
15. Defense and Indemnification. The Corporation agrees that it will
defend, indemnify, and hold Employee harmless from and against all claims,
damages, causes of action, costs, or expenses, including court costs and
reasonable attorney's fees, that may arise and/or be incurred in connection with
any actual or alleged action or inaction resulting from any responsibility or
duty deemed, alleged, or assumed to result from this Agreement, including but
not limited to Performance of Employee's Duties to the extent provided in the
Corporations Articles of Incorporation and Bylaws and to the extent covered by
the Company Directors and Officers Liability Insurance.
16. Waiver or Modification. No waiver or modification of this Agreement
or of any covenant, condition, or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith.
Furthermore, no evidence of any modification or waiver shall be offered or
received as evidence in any proceeding, arbitration or litigation between the
parties arising out of or affecting this Agreement or the rights or obligations
of any party hereunder, unless such waiver or modification is in writing, duly
executed as aforesaid. The provisions of this paragraph may not be waived except
as herein set forth.
17. Complete Agreement. This written Agreement contains the sole and
entire agreement between the parties as to the matters contained herein, and
supersedes any and all other agreements between them. The parties acknowledge
and agree that neither of them has made any representation with respect to such
matters of this Agreement or any representations except as are specifically set
forth herein, and each party acknowledges that he or it has relied on his or its
own judgment in entering into this Agreement. The parties further acknowledge
that statements or representations that may have been heretofore made by either
of them to the other are void and of no effect and that neither of them has
relied thereon in connection with his or its dealing with the other.
18. Choice of Law. This Agreement and the performance hereunder and all
suits and special proceedings hereunder shall be construed in accordance with
the laws of the State of Florida. In any action, special proceeding or other
proceeding that may be brought arising out of, in connection with, or by reason
of this Agreement, the laws of the State of Florida shall be applicable and
shall govern to the exclusion of the law of any other forum, without regard to
the jurisdiction in which the action or special proceeding may be instituted.
All actions under this Agreement shall be taken in a court of competent
jurisdiction within the county in the State of Florida in which the
Corporation's principal place of business is located and Employee hereby waives
and agrees that he shall not assert that such forum is inconvenient.
19. Binding Effect of Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors, assigns and legal representatives.
20. Life Insurance. Inasmuch as the services of Employee are important
to the success or failure of the Corporation, the Corporation may, by its sole
discretion, purchase disability insurance or insurance on the life of the
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Employee during the term hereof in such amounts as Corporation shall determine
appropriate. Such insurance shall be owned by the Corporation, the Corporation
shall be the sole beneficiary, and all premiums therefor shall be paid by the
Corporation. The Employee agrees to cooperate with the reasonable requirements
of the Corporation and/or its insurance carriers as necessary to obtain such
insurance, including submitting to any and all necessary medical examinations.
21. Invalid Provision. The invalidity or unenforceability of a
particular provision of this Agreement shall not effect the other provisions
hereto, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
22. Costs of Enforcement. In the event either party initiates action to
enforce his, her or its rights hereunder, the substantially prevailing party
shall recover from the substantially non-prevailing party its reasonable
expenses, court costs, including taxed and untaxed costs, and reasonable
attorneys' fees, whether suit be brought or not (jointly referred as to
"Expenses"). As used herein, Expenses include expenses incurred in any appellate
or bankruptcy proceeding. All such Expenses shall bear interest at the highest
rate allowable under the laws of the State of Florida from the date the
substantially prevailing party pays such Expenses until the date the
substantially non-prevailing party repays such Expenses. Expenses incurred in
enforcing this paragraph shall be covered by this paragraph.
23. Assignment. This Agreement shall be construed as a contract for
personal services by Employee to the Corporation and shall not be assignable by
Employee.
24. Strict Construction. This Agreement was the joint, negotiated
product of the parties. Therefore, neither party shall advance a position that
any provision hereof should be more strictly construed against the other party
on the basis that such other party prepared such provision.
25. Cumulative Rights. Unless otherwise provided herein, all rights,
powers and privileges conferred upon the parties by law, this Agreement or
otherwise shall be cumulative.
26. Waiver. No failure of any party to exercise any power given such
party hereunder or to insist upon strict compliance by any party with its
obligations hereunder, and no custom or practice of the parties in variance with
the terms hereof shall constitute a waiver of the parties' right to demand exact
compliance with the terms hereof.
27. Survival. The provisions of this Agreement shall continue and
survive the closing hereof unless or until there is a completion and fulfillment
of all the conditions, covenants and warranties herein.
28. Time. Time is of the essence of this Agreement.
29. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by certified registered
mail, return receipt requested, with postage prepaid to their current address or
to such other address as they request in writing.
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30. Singular/Plural Feminine/Masculine, Successors or Assigns. All
references as used herein shall include male and female, singular and plural,
and successors or assigns in the use of a corporation, partnership, individual
or entity in any place or places herein in which the context may require or
permit such substitution, substitutions or designations.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first written above.
"Corporation"
GALAXY NUTRITIONAL FOODS, INC.
By: /s/ Xxxxx X. Xxxxx
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Witness
As its: Chairman of the Board
Date: July 8, 2004
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Witness
"Employee"
XXXX XXXXX
/s/ Xxxx Xxxxx
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Witness Xxxx Xxxxx
Date: July 8, 2004
--------------------------
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Witness
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