Exhibit 10.1
Employment Agreement
EMPLOYMENT AGREEMENT made as of February 28, 2005 ("Effective Date"),
between Xxx Xxxxx Xxxx, an individual residing at 000 XX 000xx Xxxxxx, Xxxxx, XX
00000 (hereinafter referred to as the "Employee") and Garden of Eden Skincare,
Inc., a Florida corporation with offices at 00000 Xxxxxxxx Xxxx, Xxxxx, XX 00000
(hereinafter referred to as the "Employer").
WHEREAS, the Employer desires to employ the Employee, and the Employee
desires to serve as an employee of the Employer on the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and promises of the
parties hereto, the Employer and the Employee agree as follows:
1. Employment: The Employer hereby agrees to employ the Employee as Manager
of Skin Care to perform managerial and service-related functions of the
Employer, and the Employee hereby agrees to perform such services for the
Employer on the terms and conditions hereinafter stated, subject to the
directives of the Board of Directors of the Employer.
2. Term of Employment: The term of this Agreement shall begin on the
Effective Date and shall continue in full force and effect through February 28,
2006 ("Term"); provided, however, that this Agreement shall be automatically
renewed on a year-to-year basis thereafter unless terminated by either party on
at least 30 days prior written notice during any given year, unless sooner
terminated as provided herein.
3. Compensation:
(a) During the term of this Agreement, for all services rendered by
Employee under this Agreement, the Employer shall pay the Employee
compensation equal to 60% of the Employer's gross receipts for the services
Employee renders directly, whether to an existing or new client
("Compensation"), payable in arrears on the fifteenth and last day of each
month.
(b) In addition to the Compensation described in Section 3(a),
Employee may receive a cash performance bonus paid quarterly of 15% of the
skin care revenue generated by other employees or subcontractors of Eden
(excluding Employee) in excess of $2,000 per month. These revenue sources
shall be generated by the services delivered directly by employees and
subcontractors (excluding Employee) and not revenue from product sales.
Employee will be paid 10% of revenue generated by Product Sales she
personally sells. Employee will be paid 5% of revenue from existing clients
receiving medical cosmetic procedures. At the time which the company
employs a Physician to perform cosmetic procedures, the parties agree to
discuss changing the compensation paid to the buyer.
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(c) Employee is eligible to receive a maximum of 25,000 shares of
Common Stock of the Employer's parent, Medical Makeover Corporation of
America, Inc., if the Employee meets her annual revenue target of $80,000
for services she directly delivers for the Term. Achievement of less than
the target will lead to proportionately less shares being allocated to
Employee.
4. Fringe Benefits:
(a) During the term hereof, commencing May 1, 2005, the Employer shall
pay 70% of the Employer's rate for single coverage medical and
hospitalization insurance substantially similar to that provided for the
other executive personnel of the Employer in similar management positions.
(b) The Employee is authorized to incur on behalf of the Employer only
such reasonable expenses in connection with the business of the Employer as
are in conformity with the Employer's published guidelines. The Employer
shall reimburse Employee for all such necessary and reasonable expenses
incurred in connection with the business of the Employer upon the
presentation by the Employee, from time to time, of an itemized account of
such expenditures, which account shall be in form and substance in
conformity with the rules and regulations of the Internal Revenue Service.
Any single expenditure in excess of One Hundred Dollars ($100.00) shall
require the prior approval of the Chief Executive Officer or Chief
Financial Officer of the Employer.
5. Duties and Extent of Services: Upon the execution of this Agreement and
throughout its term, the Employee shall assume the position of Manager of Skin
Care for the Employer and shall undertake all of the duties incident to such
office in addition to rendering all such other management duties as the
Employer's Board of Directors may reasonably request. The Employee shall exert
her best efforts and shall devote her full time and attention to the affairs of
the Employer. During the term of this Agreement the Employee shall not, directly
or indirectly, alone or as a member of a partnership (in the capacity of a
general partner) or limited liability company (in the capacity of a manager), or
as an officer, director, significant shareholder (i.e., owning or holding
beneficially or of record five percent (5%) or more of the voting shares of an
entity), or employee of any other corporation or entity, be engaged in or
concerned with any other duties or pursuits whatsoever for pecuniary gain
requiring her personal services without the prior written consent of the
Employer.
6. Termination: Unless renewed as provided herein, the Employee's
employment hereunder shall terminate on February 28, 2006, or sooner upon the
occurrence of any of the following events:
(a) The Employee's death; all earned but not paid bonuses or shares
due will be deposited in the employees appropriate personal account,
(b) The termination of the Employee's employment hereunder by the
Employer, at its option, to be exercised by written notice from the
Employer to the Employee, upon the Employee's incapacity or inability to
perform her services as contemplated herein for a period of at least 30
consecutive days or an aggregate of 45 consecutive or non-consecutive days
during any twelve-month period during the Term hereof due to the fact that
her physical or mental health shall have become impaired so as to make it
impossible or impractical for him to perform the duties and
responsibilities contemplated for him hereunder; or
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(c) The termination for cause of the Employee's employment hereunder
by the Employer, at its option, to be exercised by written notice from the
Employer to the Employee in the event the Employee is derelict in her
duties or commits any misconduct with respect to the Employer's affairs and
such dereliction or misconduct shall continue for a period of three days
after the Employer shall have given the Employee written notice specifying
such dereliction or misconduct, and advising her that the Employer shall
have the right to terminate her employment hereunder in the event such
misconduct continues through such three-day period.
(d) In the event that the Employee commits an act constituting common
law fraud or any crime, which could reasonably be expected to have an
adverse impact on the Employer, its business or assets.
(e) In the event that the Employee should fail (otherwise than on
account of illness or other incapacity) or refuse to carry out the
reasonable directives of the Board of Directors of the Employer, and such
failure or refusal shall continue for a period of three days after the
Employer shall have given the Employee written notice specifying such
directives and wherein the Employee has failed or refused to carry out the
same, and advising her that the Employer shall have the right to terminate
her employment hereunder in the event such failure or refusal continues
through such three-day period.
(f) Cessation of the Employer's business.
7. Restrictions On The Employee: During the period commencing on the date
hereof and ending two years after the termination of the Employee's employment
by the Employer for any reason, the Employee shall not directly or indirectly
induce or attempt to induce any of the employees of the Employer to leave the
employ of Employer. If this Agreement is terminated by the Employer pursuant to
Section 2 hereof, the foregoing two-year period shall be reduced to six months.
(a) Non-Disparagement. Employee covenants and agrees that Employee
shall not engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks (including, without
limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or good will of the
Employer, its management, or of management of corporations affiliated with
the Employer.
8. Covenant Not To Compete: During the period commencing on the date
hereof, and ending two years after the termination of the Employee's employment
for any reason, the Employee shall not, except as a passive investor in publicly
held companies, engage in, or own or control any interest in, or act as
principal, director, officer or employee of, or consultant to, any firm or
corporation which is in competition with the Employer or its Parent. If this
Agreement is terminated by the Employer pursuant to Section 2 hereof, the
foregoing two-year period shall be reduced to six months.
9. Proprietary Information:
(a) For purposes of this Agreement, "proprietary information" shall
mean any proprietary information relating to the business of the Employer
or its Parent or any entity in which the Employer or its Parent has a
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controlling interest that has not previously been publicly released by duly
authorized representatives of the Employer and shall include (but shall not
be limited to) information encompassed in all proposals, marketing and
sales plans, financial information, costs, pricing information, computer
programs (including without limitation source code, object code, algorithms
and models), customer information, customer lists, and all methods,
concepts, know-how or ideas in or reasonably related to the business of
Employer or any entity in which the Employer has a controlling interest.
The Employee agrees to regard and preserve as confidential all proprietary
information, whether she has such information in her memory or in writing
or other tangible or intangible form. The Employee will not, without
written authority from the Employer to do so, directly or indirectly, use
for her benefit or purposes, nor disclose to others, either during the term
of her employment hereunder or thereafter, any proprietary information
except as required by the conditions of her employment hereunder or
pursuant to court order (in which case Employee shall give the Employer
prompt written notice so that the Employer may seek a protective order or
other appropriate remedy and/or waive compliance with the provisions of
this Agreement. The Employee agrees not to remove from the premises of the
Employer or any subsidiary or affiliate of the Employer, except as an
employee of the Employer in pursuit of the business of the Employer or any
of its subsidiaries, affiliates or any entity in which the Employer has a
controlling interest, or except as specifically permitted in writing by the
Employer, any document or object containing or reflecting any proprietary
information. The Employee recognizes that all such documents and objects,
whether developed by him or by someone else, are the exclusive property of
the Employer. Proprietary information shall not include information which
is presently in the public domain or which comes into the public domain
through no fault of the Employee or which is disclosed to the Employee by a
third party lawfully in possession of such information with a right to
disclose same.
(b) All proprietary information and all of the Employee's interest in
trade secrets, trademarks, computer programs, customer information,
customer lists, employee lists, products, procedure, copyrights, patents
and developments hereafter to the end of the period of employment hereunder
developed by the Employee as a result of, or in connection with, her
employment hereunder, shall belong to the Employer; and without further
compensation, but at the Employer's expense, forthwith upon request of the
Employer, Employee shall execute any and all such assignments and other
documents and take any and all such other action as Employer may reasonably
request in order to vest in Employer all the Employee's right, title and
interest in and to all of the aforesaid items, free and clear of liens,
charges and encumbrances.
(c) The Employee expressly agrees that the covenants set forth in
Sections 7, 8 and 9 of this Agreement are being given to Employer in
connection with the employment of the Employee by Employer and that such
covenants are intended to protect Employer against the competition by the
Employee, within the terms stated, to the fullest extent deemed reasonable
and permitted in law and equity. In the event that the foregoing
limitations upon the conduct of the Employee are beyond those permitted by
law, such limitations, both as to time and geographical area, shall be, and
be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
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10. Injunctive Relief: The Employee acknowledges that the injury to the
Employer resulting from any violation by him of any of the covenants contained
in this Agreement will be of such a character that it cannot be adequately
compensated by money damages, and, accordingly, the Employer may, in addition to
pursuing its other remedies, obtain an injunction from any court having
jurisdiction of the matter restraining any such violation.
11. Representation of Employee: The Employee represents and warrants that
neither the execution and delivery of this Agreement nor the performance of her
duties hereunder violates the provisions of any other agreement to which she is
a party or by which she is bound.
12. Parties; Non-Assignability: As used herein, the term the "Employer"
shall mean and include the Employer, its Parent and any subsidiary thereof and
any successor thereto unless the context indicates otherwise. Any assignment by
Employer of this Agreement shall be subject to the provisions of this Agreement.
This Agreement and all rights hereunder are personal to the Employee and shall
not be assignable by him and any purported assignment shall be null and void and
shall not be binding on the Employer.
13. Entire Agreement: This Agreement contains the entire agreement between
the parties hereto with respect to the transactions contemplated herein and
supersedes all previous representations, negotiations, commitments, and writing
with respect thereto.
14. Amendment or Alteration: No amendment or alteration of the terms of
this Agreement shall be valid unless made in writing and signed by all of the
parties hereto.
15. Choice of Law: This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations. In the event that there
is any controversy or claim arising out of or relating to this Agreement, or to
the interpretation, breach or enforcement thereof, and any action or proceeding
is commenced to enforce the provisions of this Agreement, the prevailing Party
shall be entitled to a reasonable attorney's fee, costs and expenses.
16. Arbitration: Except for a claim for Injunctive Relief, any controversy,
dispute or claim arising out of or relating to this Agreement, or its
interpretation, application, implementation, breach or enforcement which the
Parties are unable to resolve by mutual agreement, shall be settled by
submission by either Party of the controversy, claim or dispute to binding
arbitration in Palm Beach County, Florida (unless the Parties agree in writing
to a different location), before one arbitrator in accordance with the rules of
the American Arbitration Association then in effect. In any such arbitration
proceeding the Parties agree to provide all discovery deemed necessary by the
arbitrator. The decision and award made by the arbitrator shall be final,
binding and conclusive on all Parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
17. Notices: All notices relating to this Agreement must be in writing and
delivered either in person or by certified mail or registered mail, postage
prepaid, return receipt requested, to the person(s) and address specified on the
first page of this Agreement or such updated address as either party may
subsequently designate by notice in writing. Notice shall be effective
immediately upon receipt.
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18. Waiver of Breach: The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any of the parties hereto.
19. Binding Effect: The terms of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective personal
representatives, heirs, administrators, successors, and permitted assigns.
20. Gender: Pronouns in any gender shall be construed as masculine,
feminine, or neuter as the context requires in this Agreement.
21. Counterparts and Fascimile. This Agreement may be executed by the
parties via fascimile and in one or more counterparts, each of which when so
executed shall be deemed an original hereof and all of which, individually and
collectively, shall constitute one single contract between the parties.
22. Severability. If any term, provision, or part of this Agreement is
found by a court to be invalid, illegal, or incapable of being enforced by any
rule of law or public policy, all other terms, provisions, and parts of this
Agreement shall nevertheless remain in full force and effect as long as the
economic or legal substance of the transactions contemplated hereby is not
affect in any manner materially adverse to any Party. On such determination that
any term, provision, or part of this Agreement is invalid, illegal, or incapable
of being enforced, this Agreement shall be deemed to be modified so as to effect
the Parties' original intent as closely as possible to the end of the
transactions contemplated by this agreement and the terms and provisions of this
Agreement are fulfilled to the greatest extent possible.
23. Voluntary Agreement/Review. The Parties each acknowledge, represent and
warrant that they have reviewed and understand this Agreement in its entirety
and that they have entered into this Agreement freely and voluntarily. The
language in all parts of this Agreement shall be in all cases construed
according to its fair meaning and not strictly for or against either Party.
24. Further Assurances. The Parties hereto shall execute and deliver such
other instruments and do such other acts as may be necessary to carry out the
intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Garden of Eden Skincare, Inc.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Its: President and CEO
Xxx Xxxxx Xxxx
By: /s/ Xxx Xxxxx Xxxx
-----------------------------------
As to Section 3(c) only:
Medical Makeover Corporation of America, Inc.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Its: President and CEO
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