1
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and
between HEALTH AND NUTRITION SYSTEMS, INC. ("HNS" or the "EMPLOYER"), a Florida
corporation, and XXXXXX XXXXXXXXX, an individual (the "Employee").
PREAMBLE
WHEREAS, the Employer desires to retain the Employee; and
WHEREAS, the Employee is willing to enter into the employ of
the Employer, subject to the following terms and conditions;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten and No/100 ($10.00)
Dollars and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the Employer and the Employee (collectively
hereinafter referred to as the "Parties"), intending to be legally bound, hereby
agree as follows:
WITNESSETH:
ARTICLE ONE
TERM, RENEWALS, EARLIER TERMINATION
1.1 Term.
This Agreement shall be for an initial term of two (2) years,
commencing on , 2000.
ARTICLE TWO
SCOPE OF EMPLOYMENT
2.1 Retention.
The Employer hereby hires the Employee and the Employee hereby accepts
such employment, in accordance with the terms, provisions, and conditions of
this Agreement.
2.2 General Description of Duties.
The Employee shall perform all duties requested by the Employer,
including, without limitation, such duties as are generally associated with the
position of Chief Operating Officer.
2
ARTICLE THREE
COMPENSATION
3.1 Salary.
The Employee shall be entitled to compensation from Employer as
follows:
I. During the term of employment Employee shall receive a base salary
of One Hundred Thousand and No/100 ($100,000.00) Dollars per year paid in
Twenty-six (26) equal payments of Three Thousand Eight Hundred Forty-Six and
15/100 ($3,846.15) Dollars paid every two (2) weeks. Notwithstanding the
foregoing, the Employer may terminate the services of the Employee at any time
for cause. Cause shall include, but is not limited to fraud, theft, failure to
devote substantial time and effort to the company's business.
3.2 Expenses and Bonus.
a) Employee shall be entitled to receive payment and/or
reimbursement for expenses incurred that are of a business nature.
b) Employee shall in addition to salary and expenses be
entitled to payment of a bonus payable quarterly with the first quarter ending
in December, 1999 equal to 1/4 of 1% of net quarterly sales only if sales in the
quarter is greater than Six Hundred Thousand and No/100 ($600,000.00) Dollars.
The maximum quarterly bonus that can be earned is Ten Thousand and No/100
($10,000.00) Dollars.
3.3 Employee shall be entitled to all benefits available to employees,
including, but not limited to health insurance, life and/or disability
insurance, sick pay, vacation pay, etc.
ARTICLE FOUR
MISCELLANEOUS
4.1 Notices.
All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been duly given
on the first business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
TO EMPLOYER: HEALTH AND NUTRITION SYSTEMS, INC.
0000 Xxxxxxxxxx Xxxx, Xxxx. 0
Xxxx Xxxx Xxxxx, XX 00000
2
3
TO EMPLOYEE: XXXXXX XXXXXXXXX
0000 Xxxxxxxxxx Xxxx, Xxxx. 0
Xxxx Xxxx Xxxxx, XX 00000
in each case, with a copy to Xxxx X. Xxxxx, Esq.; The International Building,
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, the
Employee's legal counsel; or to such other person as either Party shall
designate to the other for such purposes in the manner hereinabove set forth.
4.2 Amendment.
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment, discharge
or change is sought.
4.3 Merger.
This instrument contains all of the understandings and agreements of
the Parties with respect to the subject matter discussed herein. All prior
agreements whether written or oral are merged herein and shall be of no force or
effect.
4.4 Survival.
The several representations, warranties, and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
4.5 Severability.
If any portion of any provision of this Agreement, or the application
of such provision or any portion thereof to any person or circumstance shall be
held invalid or unenforceable, the remaining portions of such provision or
portion of such provisions of this Agreement or the application of such
provision or portion of such provision as is held invalid or unenforceable to
persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be effected thereby.
4.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the
State of Florida and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Palm Beach County, Florida.
3
4
4.7 Litigation.
In any action between the Parties to enforce any of the terms of this
Agreement or any matter arising from this Agreement, the prevailing Party shall
be entitled to recover its costs and expenses, including reasonable attorneys'
fees up to and including all negotiations, trials and appeals, whether or not
litigation is initiated.
4.8 Benefit of Agreement.
This Agreement may be assigned only by the Employer, the Employee's
duties being of a personal nature. Subject to the restrictions on
transferability and assignment contained herein, the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the Parties,
their successors, assigns, personal representative, estate, heirs and legatees.
4.9 Captions.
The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
4.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
4.11 Further Assurances.
The parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed or acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, stock certificates and other documents, as may, from time
to time, be required herein to effect the intent and purposes of this Agreement.
4.12 Status.
Nothing in this Agreement shall constitute a partnership, joint
venture, agency, or lessor-lessee relationship; but, rather, the relationship
established hereby is that of employer-employee.
4
5
4.12 Counterparts.
This Agreement may be executed in any number of counterparts. All
executed counterparts shall constitute one Agreement notwithstanding that all
signatories are not signatories to the original or the same counterpart.
IN WITNESS THEREOF, the Parties have executed this Agreement, effective
as of the ____ day of _______________, 1999.
Signed, Sealed & Delivered
In Our Presence
EMPLOYER:
HEALTH AND NUTRITION SYSTEMS, INC.
--------------------------------
-------------------------------- By:
-------------------------------
Attest:
---------------------------
(CORPORATE SEAL)
EMPLOYEE:
--------------------------------
-------------------------------- By:
-------------------------------
XXXXXX XXXXXXXXX
5
