Exhibit 10.3 WHOLE LIVING
November 11, 2005
Xxxxxxx Xxxxxxx
000 Xxxx Xxx Xxxxxxxxx
Xxxxx, Xxxx 00000
Re: Employment Agreement
Dear Xxxxxxx:
This letter is to confirm our mutual understanding with respect to your
employment by Whole Living, Inc., a Nevada corporation for its wholly owned
subsidiary, Brain Garden, Inc., a Nevada corporation (collectively referred to
as the "Company"). The terms and conditions set forth in this letter shall be
referred to as the "Agreement." In consideration of the mutual promises and
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, we have agreed to as follows:
1. Employment:
The Company will employ you, and you agree to be employed by the
Company, as the President of Brain Garden, Inc., and as an advisor to Whole
Living, to have and perform such responsibilities, duties and authority as are
customary to such positions. You agree to devote your full business time and
energies to the business and affairs of the Company and to the fulfillment of
your obligations to the Company hereunder. You agree to perform your duties
faithfully, diligently and competently, using your best efforts to further the
business of the Company. Your duties shall include but are not limited to
Brain Garden business and to perform the customary duties as an advisor to
Whole Living. The Company recognizes that these duties can be performed within
or out of the Corporate offices.
2. Term of Employment:
(a) Your employment shall commence on the date of this Agreement
and shall continue until the first anniversary hereof (the "Term").
Notwithstanding the foregoing, your employment with the Company may be
terminated prior to expiration of the Term as follows:
(i) at the will of the company for any reason provided, the
Company provides you with written notice of its decision to terminate your
employment no less than thirty (30) days prior to the effective date of such
termination. You acknowledge that your employment with the Company is and
shall continue to be at-will, as defined under applicable law;
(ii) immediately upon your death;
(iii) by the Company if you are unable due to illness, accident
or other physical or mental incapacity, with or without reasonable
accommodation, to perform the services provided for hereunder for an aggregate
of thirty (30) business days within any period of ninety (90) consecutive
business days during the term hereof;
(iv) by the Company for "Cause" (as defined below) provided,
that termination solely for Cause shall follow written notice to you of such
event constituting Cause and your failure to cease the violative acts or
omissions and cure any consequences of such acts or omissions within thirty
(30) days following such notice;
(v) by you based upon any reason provided, that the termination
shall only be effective if you have given written notice to the Company no
less than thirty (30) days prior to the effective date of such termination.
During that thirty (30) day severance period you agree to serve as a
consultant to the Company and be available to provide assistance and
consultation to the Company upon its request.
Following termination of your employment with the Company, you shall be
entitled to severance benefits equal to the amount of your base salary for a
ninety (90) day period to be paid over the ninety (90) day period in biweekly
increments.
(b) For the purpose of this Agreement:
(i) "Cause" shall me an (A) any action or omission by you
involving willful misconduct or gross negligence; (B) your conviction of a
felony, either in connection with the performance of your obligations to the
Company or which conviction otherwise shall adversely affect the business
activities or goodwill of the Company; (C) willful disloyalty, deliberate
dishonesty, breach of fiduciary duty or any act or fraud or embezzlement; or
(D) your breach of the terms of this Agreement; and
(c) Upon termination of your employment with the Company, you
shall cease holding yourself out to third parties as an employee of the
company or otherwise take any action on behalf of the Company. You shall also
deliver to the Company any property of the Company which may be in your
possession including products, materials, memoranda, notes, records, reports
or other documents in any medium whatsoever.
3. Compensation.
(a) During the period of your employment with the company
hereunder, the Company shall pay you a monthly salary of eleven thousand
dollars ($11,000) paid in biweekly increments. In addition to your annual base
salary, and as additional consideration for the promises, covenants and
releases contained herein, upon execution of this Agreement one million
(1,000,000) shares of the Company's restricted common stock will be issued in
your name and placed in escrow for a period of ninety (90) days.
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If your employment has not been terminated as provided in Section
2(a)(ii); 2(a)(iv) or 2(a)(v) above within the ninety (90) day escrow period,
the shares shall be released to you from escrow. If your employment has been
terminated as provided in Sections 2(a)(ii); 2(a)(iv) or 2(a)(v), prior to the
end of the ninety (90) day escrow period, the shares will be returned to the
Company and canceled.
(b) In addition to your monthly salary, the Company will pay you a
total of four thousand dollars ($4,000) per month as a car and house
allowance.
4. Benefits and Reimbursements.
While you are employed by the Company hereunder, you will be entitled to
participate in the employee health insurance plan and programs of the Company
to the extent that you meet the eligibility requirements for each individual
plan or program. This benefit will be paid by the Company only while you
remain employed by the Company. The Company provides no assurance as to the
adoption or continuance of any particular employee benefit plan or program,
and your participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto.
5. Protected Information.
You shall at all times prior to and following any termination of your
employment with the Company for any reason maintain in confidence any
information disclosed to or developed by you during the course of performing
services for the company and which is not generally available to the public
(other than as a result of your wrongful disclosure), including but not
limited to, information and facts concerning the Company's products, methods,
financial status, business plans, financing sources and terms, potential
transactions, current and potential client/borrower lists, Company techniques,
vendors, licensors, distributors, associates, investors, marketing plans or
any other proprietary information of the Company or any third party provided
to you. You shall not use or disclose any of such information except in the
course of the performance of your duties for the Company.
6. Indemnification;
(a) The Company agrees to defend, indemnify and hold you harmless
from any and all losses, claims, suits, causes of action, injuries,
liabilities or damages and associated expenses of any kind and nature
whatsoever which shall include, but not be limited to, reasonable attorney's
fees and other litigation expenses, arising from or relating in any way to
your fulfillment of your duties and obligations under this Agreement and any
action brought against the Company which does not involve or arise from your
willful misconduct or gross negligence.
(b) You agree to defend, indemnify and hold the Company harmless
from any and all losses, claims, suits, causes of action, injuries,
liabilities or damages, and associated expenses of any kind and nature
whatsoever which shall include, but not be limited to, reasonable attorney's
fees and other litigation expenses, arising from or relating in any to your
willful misconduct or gross negligence in the performance of your duties
hereunder or otherwise.
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(c) The parties hereto agree that if such claim is made, such an
action commenced or such demand made against you and/or the company, then
either party shall notify the other, in writing, of the action, complaint or
demand in order that the responsible party under this section may present its
defense in a timely fashion against the action, demand or claim. The
responsible party under this section shall keep the other party fully
informed, at the responsible party's expense, of its defense of the claim,
complaint or demand which notice shall include, but is not limited to,
providing the other party with copies of any written correspondence, pleadings
or any and all administrative or judicial decisions. Each party agrees to
reasonably cooperate with the other to whatever extent is reasonably necessary
to protect or defend against the claim, complaint or demand. Said cooperation
shall include, but is not limited to, fully agreeing to execute any and all
documents necessary to defend against any claim, complaint or demand.
(d) In addition to the indemnification contained herein, each
party shall promptly inform the other of any suspected actions or activities
of third parties that would result in the Company having any claim, demand or
cause of action such third party and, with respect to such activities as are
suspected, the Company shall have the right, but not the obligation, to
institute an action against such third party.
7. Negative Information:
The parties agree at all times prior to and following any termination of
your employment with its Company for any reason that they will not disseminate
any negative information, statements or representations about the other or any
employee, agent or representative of the other and each will employ such
efforts as are reasonable to protect any one else from making derogatory
statements about the other. Upon written notification of any violation of the
promises contained in the paragraph, the violating party agrees to take
immediate action to stop the violation and provide a written report to the
non-violating party containing a detailed description of what action was taken
to stop the violation and what if any remedial action was taken by the
violating party. Said written report shall be delivered to the non violating
party within ten (10) days of the request of notification of violation by the
other party.
8. Release.
For good and valuable consideration, receipt of which is hereby
acknowledged, you acting on behalf of yourself, and your successors and
assigns, do hereby fully and forever release and discharge the Company and its
respective subsidiaries, affiliates, divisions, components, successors and
assigns, their employees, officers, directors, agents and attorneys, from any
and all claims, demands, obligations, liabilities, indebtedness, breaches of
duty, costs or attorney fees, or any relationship, acts, omissions,
misfeasance, or cause or causes of action, sums of money, accounts, and
promises of every type, kind, nature, description or character, and
irrespective of how, why or by reason of what facts, which could, might, or
may be claimed to exist, of whatever kind or name, known or unknown, suspected
or unsuspected, liquidated or unliquidated, each as through fully set forth
herein at length, which in any way arise out of, are connected with, or
related to any professional, commercial or business dealings or relationship
between the parties hereto up to and including the date of this release.
Nothing in this paragraph is intended or shall release or waive any right or
obligation of the parties to this Agreement arising under this Agreement.
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9. Noncompetition.
(a) We each recognize and acknowledge the highly competitive
nature of the industry in which the Company conducts its business and the
proprietary nature of such business activities. You acknowledge and agree that
a business will be deemed competitive with the Company and constitute a
"Competitive Business" if, during the period during which the covenant not to
compete contained in this Section 9 applies, that business includes, as one of
its primary businesses, any of the "Competitive Activities."
For purposes of this Agreement, the term "Competitive Business" shall
refer to the following:
Any business operating anywhere in the world, that engages in Competitive
Activities which contribute to our constitute more than fifty percent (50%) of
any entity's (including a corporation, limited liability company, partnership,
joint venture or any division subsidiary or partner thereof) gross revenues.
For example, the sale of whole food products by a subsidiary of a multilevel
marketing company would constitute the primary business of that subsidiary if
the sale of whole food products constituted more than fifty percent (50%) of
that subsidiary's gross sales. Under this example, you could work for the
multilevel marketing company but not for its subsidiary selling whole food
products unless that subsidiary's revenue constitutes more than fifty percent
(50%) of the consolidated gross revenue of the multilevel marketing company
and its subsidiary.
For such purposes, "Competitive Activities" shall refer to any of the
following activities:
The local, regional or worldwide manufacturing, marketing and selling of
any kind and all forms of whole food products and essential oils comparable or
in any way similar to products manufactured, marketed or sold by the Company
or products that are being developed, tested or prepared for sale,
manufacturing or marketing by the Company (including but not limited to
"Pulse" products and variations thereof).
(b) During your employment with the Company and during the
Post-Termination Period (as defined below), you shall not:
(i) for yourself or on behalf or through any other person or
entity, directly or indirectly, either as principal, agent, stockholder,
employee, consultant, representative or in any other capacity, own, manage,
operate, control, or be employed by, either as an employee or independent
contract, or otherwise associate in any business-related manner with, engage
in or have a financial interest in any Competitive business;
(ii) either individually or on behalf of or through any other
person, directly or indirectly, solicit, entice, or persuade or attempt to
solicit, entice or persuade any employee of or consultant to the Company to
leave the services of the Company for any reason; or
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(iii) either individually or on behalf or through any other
person, directly or indirectly, solicit, divert or appropriate or attempt to
solicit, divert or appropriate, for the purpose of competing with the Company,
any customer, distributor, associate, client or vendor of the Company or
otherwise interfere with any prospective business opportunity of the Company
that represent a Competitive Activity.
(c) "Post Termination Period" means (i) the period of thirty
six(36) consecutive months immediately following the termination of your
employment for cause or termination of your employment pursuant to paragraph
2(a)(iv) or 2(a)(v) above; (ii) the period of twenty-four (24) consecutive
months immediately following the termination of your employment pursuant to
paragraph 2(a)(i) or 2(a)(iii) above. Notwithstanding the above
Post-Termination Period shall cease immediately upon the cessation of all
business by the Company.
(d) You further acknowledge that (i) the type of activities which
are prohibited by this Agreement are narrow and reasonable in relation to the
full set of skills and qualifications that you possess and afford you
sufficient latitude to earn your livelihood in non-prohibited activities
during any Post-Termination Period; (ii) the geographical scope of the
provisions of this Agreement is reasonable, legitimate and fair to you; (iii)
the scope and character of the competitive activities restricted in this
Agreement fairly and accurately reflect the activities which you perform for
the Company; (iv) your performance of services for the Company and
undertakings in this Section 9 represent material consideration for the
Company's execution of this Agreement; (v) and the restrictions are reasonably
necessary to protect the legitimate interests of the Company, including the
Company's protection of confidential information, customer relationships and
goodwill.
(e)
10. Disclosure to Future Employers.
You agree that you will provide and that the company may provide, in its
discretion, a copy of the covenants contained in Sections 5 and 9 above to any
Competitive Business which you may directly or indirectly own, manage,
operate, join, control or in which you participate in the management,
operation, financing, or control, or with which you may be connected as an
officer, director, employee, partner, principal, agent, representative,
consultant or otherwise.
11. No Conflicting Agreements.
You hereby represent and warrant that you have no commitments or
obligations inconsistent with this Agreement.
12. Additional Representations
You make the following additional warranties and representations that are
an inducement upon which the Company is relying to enter into this Agreement.
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(a) All information provided to the Company by you is accurate and
complete; and
(b) The execution of this Agreement by you will not violate or
constitute a breach of the terms of any other agreements or commitment to
which you are a part; and
(c) You acknowledge that no representations, promises, guarantees
or warranties of any kind are made or have been made by us or by any person
representing himself or herself to be the Company's authorized agent or
representative to induce you to execute this Agreement except as specifically
set forth herein.
13. General
(a) Notices All notices, requests, consents and other
communication hereunder shall be in writing, shall be addressed to the
receiving part at any address designated by the party in writing, and shall be
either (i) delivered by hand; (ii) sent by nationally recognized overnight
courier service; (iii) sent by facsimile transmission; or (iv) sent by
registered mail, return receipt requested, postage prepaid and a copy thereof
sent by ordinary mail on the same day. All notices, requests, consents and
other communications hereunder shall be deemed to have been given either upon
delivery if by hand, by facsimile transmission or by overnight courier or on
the third business day following mailing if sent by registered mail.
(b) Entire Agreement. This Agreement embodies the entire
agreement understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(d) Waivers and Consents. The terms and provisions of this
Agreement may be waived, or consented for the departure there from granted,
only by written document executed by the party entitled to the benefits of
such terms or provisions and, if such party is the Company, by the Company. No
such waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement,
whether or not similar. Each such waiver or consent shall be effective only in
the specific instance and for the purpose for which it was given, and shall
not constitute a continuing waiver or consent.
(e) Assignment. The Company may assign its rights and obligations
hereunder to any person or entity who succeeds to all or substantially all of
the Company's business as part of a sale of the business of the Company. Your
rights and obligations under this Agreement are personal and may not be
assigned by you.
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(f) Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the law of the State of Utah, without giving effect to the conflict of law
principles thereof.
(g) Severability. The parties intend this Agreement to be enforced
as written. If, however, any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a duly authorized court
having jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than those as to which it
si so declared illegal or unenforceable, shall not be affected thereby, and
each portion and provision of this agreement shall be valid and enforceable to
the fullest extent permitted by law.
(h) Injunctive Relief. You hereby expressly acknowledge that any
breach or threatened breach of any of the terms or conditions set forth in
Sections 5, 7 or 9 of this Agreement will result in substantial, continuing
and irreparable injury to the Company. Therefore, you agree that, in addition
to any other remedy that may be available to the Company, the Company shall be
entitled to injunctive or other equitable relief by a court of appropriate
jurisdiction in the event of any breach or threatened breach of the terms of
Sections 5. 7 or 9 of this Agreement.
(i) Jurisdiction. You and the Company agree that any and all
disputes, actions, or proceedings arising out of or relating to this Agreement
or in any way connected to your employment with the Company shall be litigated
solely and exclusively in the United States District Court for the District of
Utah. You and the Company irrevocably consent to the jurisdiction and venue of
any such court and waive any argument that venue in such forums is not
convenient.
(j) Expenses. Should any party breach this Agreement, in addition
to all other remedies available at law or in equity, such party shall pay all
of the other party's costs and expenses resulting there from and/or incurred
in enforcing this Agreement, including legal fees and expenses.
(k) Interpretation. The parties hereto acknowledge and agree that:
(i) each party has reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its revision; (ii) the rules of construction
to the effect that any ambiguities are resolved against the drafting party
shall not be employed in the interpretation of this Agreement; and (iii) the
terms and provisions of this Agreement shall be construed fairly as to all
parties hereto and not in favor of or against any party, regardless of which
party was generally responsible for the preparation of this Agreement.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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If the foregoing accurately sets forth our agreement, please so indicate
by signing and returning to us the enclosed copy of this letter, whereupon
this letter shall become a binding agreement between us as of the date first
written above.
[Signature Page Follows]
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Very truly yours,
WHOLE LIVING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Its: Xxxxxxx X. Xxxxxxx
Vice-president Marketing
Acknowledged and agreed:
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Dated: 11-11-05
[Signature Page to Employment Agreement]
