EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This AGREEMENT is dated the 24 day of FEBRUARY, 0000, xxxxxxx XXXXX
XXXXXXX KINETICS, INC., a Florida corporation doing business as SOUTH FLORIDA
BIOAVAILABILITY CLINIC (the "Company") and XXXXXXX X. XXXXXX an individual
residing at 000 Xxxxxxx Xxx, Xxxxxx Xxxxx, Xxxxxxxx 41011976 Xxxxxxx Xxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000 (the "Employee").
WHEREAS, the Company and the Employee desire that the Employee be
employed by the Company on the terms as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
RECITALS
The foregoing recitals are true and correct and incorporated herein as
if restated in their entirety.
ARTICLE II
EMPLOYMENT
2.1 EMPLOYMENT. The Company hereby employs the Employee as Executive
Vice President of Clinical Operations or in such other capacity
as the Company's board of directors may from time to time
determine. The Employee shall engage in such activities and
perform such reasonable duties as may be assigned him from time
to time by the Company's President. Employee hereby accepts such
employment and agrees to devote his full working time and best
efforts to the Company's business and affairs. During the term
hereof, the Employee shall not engage in or be connected with any
other business pursuits unless authorized in writing by the
President of the Company, except for passive investment
activities which do not inhibit or interfere with the performance
of the Employee's duties hereunder. *EXCEPTIONS [ILLEGIBLE]
2.1.1 CORPORATE DIRECTOR. Commencing subsequent to the company
completing an IPO, Employee shall be nominated to the Board of
Directors of the subsidiary Corporation (New South Florida
Kinetics, Inc.)
2.2 SALARY. During the continuance of employment hereunder the Company
shall pay to the Employee for his services hereunder a salary, payable in
accordance with Company's normal payroll cycle, at the annual rate of $120,000,
plus such additional amounts as may be determined by the board of directors of
the Company.
2.3 FRINGE BENEFITS AND OTHER COMPENSATION. The Employee will be
entitled to receive
during his employment hereunder the following fringe benefits:
2.3.1 VACATION AND SICK LEAVE. The Employee shall be entitled to paid
vacation annually to be taken at such times during the year as
may be approved by the Company on reasonable notice and which do
not unduly interfere with the business of the Company. The
Employee shall be entitled to sick leave each year. Annual
vacation and sick leave days are comparable to other executives
such as Xxxxxx Xxxxxxx or Xx. Xxxx Xxxxxxx.
2.3.2 HEALTH INSURANCE. The Employee will receive individual health
insurance benefits under the Company's comparable executive
plans. Employer may continue funding existing COBRA plan until
it's expiration.
2.3.3 MOVING EXPENSES. The Company will reimburse the Employee for
reasonable and necessary expenses of moving himself, his
immediate family and their possessions from Kentucky to Florida.
2.3.4 AUTOMOBILE ALLOWANCE. The company will provide employee with an
automobile allowance in the amount of $300 per bi-weekly pay
period.
2.3.5 TRAVEL TO CINCINNATI. The company will reimburse employee for one
round trip per month to Cincinnati but not to exceed $300.
2.3.6 TEMPORARY APARTMENT. The company will provide employee with a 2
bedroom apartment for up two 6 months or longer in the discretion
of the Board of Directors.
2.3.7 PROFESSIONAL DUES. The company will reimburse employee for
reasonable costs of professional licenses and dues.
2.4 COMPANY STOCK OPTION. Upon execution of this Agreement, the Company
shall grant to the Employee a non-qualified stock option to purchase 200,000
shares of the common shares of beneficial interest in the Company at an exercise
price of one ($1.00) dollar per share. This option shall be exercisable in four
equal annual installments of 50,000 shares each, commencing on 3/15/99. Upon
termination of this Agreement by either party, the Employee's rights hereunder
shall terminate, except if the Company should terminate the Employee's
employment for any reason (including the expiration of the Term of Employment by
notice given pursuant to Article III, below) other than for cause (as defined
below), then all excersible shares under the option shall remain exercisable for
at least twelve months following the effective date of termination.
ARTICLE III
PERIOD OF EMPLOYMENT
This Agreement shall become effective, and the employment hereunder
shall be for a period of one year, commencing upon the date first above written
(the "Effective Date"); provided, that commencing on the first anniversary of
the Effective Date and on each subsequent anniversary, the Term of this
Agreement shall automatically be extended for an additional year, unless, no
later than ninety (90) days before each such anniversary, either party provide
notice to the other party of an intention not to extend, and provided further,
that this Agreement may be sooner terminated pursuant to Article IV hereto.
ARTICLE IV
TERMINATION OF THE AGREEMENT
4.1 DEATH OR PERMANENT DISABILITY. This Agreement shall automatically
terminate, without act by any party, upon the death or Permanent Disability of
the Employee. The term "Permanent Disability" refers to the Employee being
unable, for a period of 45 continuous days or 90 days in any twelve month
period, to perform his customary duties hereunder due to physical or mental
incapacity.
4.2 TERMINATION FOR CAUSE. This Agreement may at any time be terminated
by the Company for cause, which for the purposes of this Agreement shall mean
one or more of the following:
4.2.1 dishonesty, in any material respect;
4.2.2 personal misuse of alcohol or drugs;
4.2.3 material deficiency in the performance of duties or gross
insubordination;
4.2.4 any other material breach by Employee of any provision of this
Agreement.
4.3 TERMINATION WITHOUT CAUSE. This Agreement may be terminated by
either party without cause upon 90 days written notice provided to the other in
accordance with the terms of this Agreement. In the event notice of termination
without cause is given to the Employee by the Company, the Company may elect to
terminate immediately and pay the Employee three months severance within thirty
(30) days of termination. In the event notice of termination without cause is
given to the Company by the Employee within the first three months of the
initial term, within thirty (30) days of termination, the Employee shall pay to
the Company an amount equal to fifty (50%) of the moving expenses previously
paid by the Company to or for the benefit of the Employee.
4.4 EFFECT OF TERMINATIQN. Upon the termination of this Agreement
pursuant to this Article IV, except as otherwise provided, all salary, bonuses,
other compensation or rights hereunder shall cease to accrue as of the date of
termination, but the Company shall remain responsible for any salary which shall
have accrued pursuant to Article II above to the date of termination. The
parties agree that the mounts paid under this provision or the preceding
provision are in full and complete satisfaction of all obligations due to the
Employee by the Company and, accordingly, the Company may demand a general
release before disbursing the amount payable under this provision or the
preceding provision.
ARTICLE V
NON-DISCLOSURE AND NON-COMPETITION COVENANTS
5.1 COVENANTS OF EMPLOYEE. The Employee acknowledges that his duties
will require him to have constant access to confidential information and
material belonging to the Company, including without limitation the Company's
operating procedures, business plans, trade secrets, and marketing tactics and
its lists of customers, vendors, referral sources and patients. As an
inducement to, an in consideration of, the Company entering into this Agreement,
and in recognition of the fact that the failure of the Employee to abide by the
restrictive covenants set forth herein will result in irreparable harm to the
Company, the Employee agrees as follows:
5.1.1 Employee shall not at any time utilize or divulge such
information and material, except on behalf of Company in a duly
authorized manner.
5.1.2 Employee shall not, during the continuance of this Agreement and
for a period of one year thereafter (without regard to the nature
or cause of the termination of this Agreement), directly or
indirectly, in any way for his own account, as employee, officer,
stockholder, proprietor, partner or otherwise, or for the account
of any other person, firm, corporation or enterprise:
(i) Engage anywhere in Dade, Monroe, Broward or Palm Beach
Counties of Florida, in any, similar business to that
conducted by the Company.
(ii) Solicit customers or referral sources which are or were
customers or referral sources of the Company during any
period of his employment with a view toward inducing any
such customer or referral source to obtain services or
engage in any business activity of the nature of that
offered or engaged in by the Company; or
(iii) Offer employment to any employee of the Company in any
capacity whatsoever or attempt to induce or cooperate with
any other firm in an attempt to induce any employee of
Company to leave the employ of Company.
5.1.3 Employee agrees that any ideas, designs, inventions, discoveries,
improvements, or the like, relating in any way to Company's
business, whether patentable or not, developed or made by him
during the term hereof, whether during or after working hours,
whether alone or with others, shall be the sole property of and
are hereby assigned to the Company, and Employee undertakes to
promptly make full disclosure thereof to Company, and to execute
such instruments during the term hereof and thereafter as may be
required, and to take all other steps necessary, to vest whatever
right, title and interest therein Employee would otherwise have
had, solely in Company. Without limiting the Company's rights
hereunder, any idea, design, invention, discovery or improvement
made or developed by Employee within one (1) year after
termination of Employee's employment with the Company shall be
presumptively deemed to have been made, discovered, developed or
otherwise conceived by Employee during Employee's period of
employment with the Company; provided that nothing herein shall
prevent the Employee from otherwise establishing that such idea,
design, invention, discovery or improvement was made and
developed by the Employee following the termination of the
Employee's employment with the Company. Employee further
acknowledges that there are no ideas, designs, inventions,
discoveries, improvements or the like relating in any way to the
Company's businesses
developed or made prior to the date hereof by the Employee,
except such thereof, which are owned by the Company.
5.1.4 Employee agrees that any work of authorship, relating in any way
to Company's business, prepared by him during the term hereof,
shall be a "work made for hire", and Company shall be the sole
author of such work and the owner of all of the rights comprised
in the copyright of such work. Employee undertakes to execute
such instruments during the term hereof and thereafter as may be
required, and to take all other steps necessary, to confirm that
all such rights are vested solely in Company.
5.2 MATERIAL OWNED BY THE COMPANY. The Employee shall, upon termination
of this Agreement for any reason, return to the Company all lists, books,
records, computer discs, credit cards, equipment, sales materials and other
documents and properties, and all copies thereof, pertaining to the business of
the Company, all of which the Employee acknowledges are owned by the Company.
5.3 EQUITABLE RELIEF. The Employee acknowledges that any breach of this
Article V would cause irreparable damage to the Company, incapable of
compensation by the award of money damages. The Employee therefore consents to
the entering of equitable relief with respect to any such breach, without the
necessity of proving actual damages.
5.4 CONSTRUCTION. In the event any provision of this Article V shall be
held to be invalid and unenforceable for any reason, including without
limitation the geographic or business scope or the duration thereof, such
invalidity or unenforceability shall attach only to such provision and shall not
affect or render invalid or unenforceable any other provision of this Agreement
(including this Article V), and this Article V shall be construed as if such
invalid or unenforceable provision had been more narrowly drawn so as not to be
invalid or unenforceable.
ARTICLE VI
MISCELLANEOUS
6.1 NOTICES. All notices or other communications to be given under this
Agreement shall be in writing and shall be deemed given when personally
delivered to the Employee or three days after mailing with adequate postage by
certified mail, return receipt requested, to the Employee or the Company, as the
case may be, at the following addresses:
If to the Company:
South Florida Bioavailability Clinic
00000 Xxxxxxxx Xxxx.
Xxxxx, XX 00000
If to the Employee:
Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
or to such other address as the person to be notified shall have specified in
the manner indicated in
this Paragraph 6.1.
6.2 SURVIVAL OF CERTAIN PROVISIONS. The restrictive covenants contained
in Article V above, and any provisions of this Agreement pertaining to such
covenants, shall survive the termination of this Agreement.
6.3 BINDING EFFECT; ETC. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective heirs, personal
representatives, successors and assigns; except that it shall not be assignable
by the Employee. This Agreement and the terms and provisions hereof shall be
construed in accordance with the laws of Florida.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and date first above written.
SOUTH FLORIDA KINETICS, INC., a Florida
corporation doing business as
SOUTH FLORIDA BIOAVAILABILITY CLINIC
By: /s/ XXXX XXXXXXX
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XXXX XXXXXXX, President
Attest:
/s/ XXXX XXXXXXX
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Secretary
Witnesses:
/s/ XXXXXXX X. XXXXXX 2/27/99
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XXXXXXX X. XXXXXX
