EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") effective the 1st day of June 2009, entered
into by and between Xxxx Xxxxxx (Employee") and Ballroom Dance Fitness
Inc. a Florida Corporation doing business as Ballroom Dance Fitness
Inc.("the Company"), with its principal place of business in Pompano Beach ,
Florida.
The Company desires to employ Employee as its Chief Operating Officer (COO)
and Employee desires to be so employed and;
NOW, THEREFORE, the parties desire to memorialize herein the terms and
conditions of Employee's employment. In consideration of the mutual covenants
and promises contained herein and other good and valuable consideration, the
parties hereby acknowledge the receipt and sufficiency of which hereto, the
parties agree as follows:
1. Position & Duties
Employee shall serve as COO upon the terms set forth in this Agreement.
Employee shall have the responsibilities inherent in this position and shall
report to the Board of Directors of the Company, and Employee shall perform
any other duties reasonably required by Company's Board of Directors. The
primary duties are: implement corporate business plan, approve subsidiary
annual biz plans and financial projections, review quarterly and annual
financials, approve mergers and acquisitions, and increase corporate market
valuation.
2. Term of Employment.
Subject to the provisions of this Agreement, the term of Employee's employment
under this Agreement ("Period of Employment") shall commence on, June 1, 2009
until June 1, 2013 (the "Initial Term"). The company may experience cash flow
problems as a start up, and will not accrue wages, if salary cannot be paid.
Unless either party elects to terminate this Agreement at the end of the
initial or any renewal term by giving the other party written notice of such
election at least ninety (90) days before the expiration of the then current
term, this Agreement shall be deemed to have been renewed for an additional
term of one (1) year commencing on the day after the expiration of the then
current term. Either party may elect not to renew this Agreement with or
without cause, in which case this Section 2 shall govern Employee's
termination, and not Section 5. Upon expiration of this Agreement after notice
of non-renewal, Company shall provide Employee all compensation and benefits
to which Employee is entitled through the date of termination and thereafter
Company's obligation hereunder shall cease.
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3. Compensation and Benefits.
Salary. The Company shall pay Employee an annual base salary of seventy two
thousand dollars ($72,000) during the term of Employee's employment, payable
in accordance with the Company's semi-monthly payroll disbursement cycle
("Base Compensation"). Employee's base compensation shall be reviewed each
year during the term of Employee's employment, provided that the Company's
performance criteria are achieved as set forth by the Company each year. BONUS
The employee will receive an annual BONUS equal to 10% of EBITDA.
3.1 Vacation and Sick Leave. Employee will be entitled to four (4) weeks
of vacation, and sick leave equal to six (6) days per year, and 6 personal
days. Vacation time, personal days and sick leave shall not be accumulated
after the end of any year. Employee's use of vacation time shall be subject to
the prior approval of the CEO of the Company. Sick leave shall accumulate at
the rate of one half day per month.
3.2 Expenses. With the prior approval of the CEO, the Company shall
reimburse Employee for all expenses incurred in connection with her duties on
behalf of the Company, provided that Employee shall keep, and present to the
Company, records and receipts relating to reimbursable expenses incurred by
Employee. Such records and receipts shall be maintained and presented in a
format, and with such regularity, as the Company reasonably may require in
order substantiating the Company's right to claim income tax deductions for
such expenses.
3.3 Benefits. Employee will be entitled to participate in the employee
benefit plans or programs of the Company, including medical and life insurance
and ISOP, to the fullest extent possible, subject to the rules and regulations
applicable hereto and to standard eligibility and vesting requirements of any
coverage and shall be furnished with other services and perquisites
appropriate to Employee's position. Without limiting the generality of the
foregoing, Employee shall be entitled to the following benefits:
(a) Comprehensive medical insurance for Employee ;
(b) Eye insurance
(c) Dental insurance
(d) Group term life insurance with death benefits equal to one hundred
percent (100%) of base salary;
3.4 Car Allowance. Employee shall be entitled to $500 per month car
allowance.
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4. Termination
4.1 Due to Disability
(a) If Employee becomes unable to perform the duties specified
hereunder due to partial or total disability or incapacity resulting from a
mental or physical illness, injury or any other cause, Company will the
payment of Employee's base salary at its then current rate for a period of (4)
weeks following the date Employee is first unable to perform such duties due
to such disability or incapacity. Thereafter, Company shall have no obligation
for base salary, bonus or other compensation payments to Employee during the
continuance of such disability or incapacity. Company will continue to provide
benefits to Employee so long as Employee remains employed;
(b) If Employee is unable to perform the duties specified hereunder due to
partial or total disability or incapacity resulting from a mental or physical
illness, injury or any other cause for a period of TEN (10) consecutive weeks
or for a cumulative period of SEVENTY (70) business days during any FIVE (5)
month period ("Disability"), then, to the extent permitted by law, Company
shall have the right to terminate this Agreement thereafter, in which event
Company shall have no further obligations or liabilities hereunder after the
date of such termination except Employee will be deemed disabled and eligible
for the payments outlined in paragraph 5.1(a). EMPLOYEE REPRESENTS THAT TO THE
BEST OF EMPLOYEE'S KNOWLEDGE EMPLOYEE HAS NO MEDICAL CONDITION THAT COULD
CAUSE PARTIAL OR TOTAL DISABILITY THAT WOULD RENDER EMPLOYEE UNABLE TO PERFORM
THE DUTIES SPECIFIED IN THIS AGREEMENT OTHERWISE THE BENEFITS IN PARAGRAPH
5.1(a) SHALL BE NULL AND VOID.
4.2 Due to Death. If Employee dies during the period of employment,
Employee's employment with Company shall terminate as of the end of the
calendar month in which the death occurs. Company shall have no obligation to
Employee or Employee's estate for Base Compensation or other form of
compensation or benefit other than amounts accrued through the date of
Employee's death, except as otherwise required by law or by benefit plans
provided at Company expense.
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In the event of the termination of Employee's employment due to Employee's
death or Disability, Employee or Employee's legal representatives, as the case
may be, shall be entitled to:
(a) In the case of death, unpaid Base Compensation earned or accrued through
Employee's date of death and continued Base Compensation at a rate in effect
at the time of death, through the end of one (1) calendar year after which
Employee's death occurs or the end of the employment term which ever is the
lesser amount;
(b) Any performance or special incentive bonus earned but not yet paid;
(c) A pro rata performance bonus for the year in which employment terminates
due to death or Disability based on the performance of Company for the year
during which such termination occurs or, if performance results are not
available, based on the performance bonus paid to Employee for the prior year;
and
(d) Any other compensation and benefits to which Employee or Employee's
legal representatives may be entitled under applicable plans, programs and
agreements of Company to the extent permitted under the terms thereof,
including, without limitation, life insurance as provided in Section 4.5
above.
4.3 For Cause. Company may terminate Employee's employment relationship with
Company at any time and with ten (10) days prior notice for Cause.
(a) For purposes of this Agreement, termination of employment of Employee by
the Company for cause means termination for the following reasons: (i)
frequent and unjustifiable absenteeism, other than solely by reason of
Employee's illness or physical or mental disability; (ii) failing to follow
the reasonable instructions of the President; (iii) proven dishonesty
materially injurious to the Company or to its business, operations, assets or
condition (an "Adverse Effect"); or gross violation of Company policy or
procedure after being warned, notified, or Employee's acknowledged, gross or
willful misconduct, or willful neglect to act, which misconduct or neglect is
committed or omitted by Employee in bad faith and had an Adverse Effect; and
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(b) Company shall have no obligation to Employee for Base Compensation or
other form of compensation or benefits, except as otherwise required by law,
other than (a) amounts accrued through the date of termination, and (b)
reimbursement of appropriately documented expenses incurred by Employee before
the termination of employment, to the extent that Employee would have been
entitled to such reimbursement but for the termination of employment.
4.4 Termination Obligations.
(a) All tangible Company property shall be returned promptly to Company upon
termination of the Period of Employment;
(b) All benefits to which Employee is otherwise entitled shall cease upon
Employee's termination, unless explicitly continued either under this
Agreement or under any specific written policy or benefit plan of Company;
(c) Upon termination of the Period of Employment, Employee shall be deemed
to have resigned from all offices and directorships then held with Company or
any Affiliate;
(d) Employee's obligations under this Section 5.5 on Termination
Obligations, Section 6 on Confidentiality and Non-Disclosure, Section 8 on
Inventions, Section 9 on Arbitration, and Section 11 on Non-Competition shall
survive the termination of the Period of Employment and the expiration or
termination of this Agreement; and
(e) Following any termination of the Period of Employment, Employee shall
cooperate fully with Company in all matters relating to completing pending
work on behalf of Company and the orderly transfer of work to other employees
of Company. Employee shall also cooperate in the defense of any action brought
by any third party against Company that relates in any way to Employee's acts
or omissions while employed by Company.
5. Confidentiality and Non-Disclosure.
Employee agrees to abide by the terms of the Confidentiality and Non-
Disclosure Agreement, and proprietary information policies now in effect by
the Company or as may be established in the future.
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6. Company Property.
All products, records, designs, patents, plans, data, manuals, brochures,
memoranda, devices, lists and other property delivered to Employee by or on
behalf of the Company, all confidential information including, but not limited
to, lists of potential customers, prices, and similar confidential materials
or information respecting the business affairs of the Company, such as
hardware manufacturers, software developers, networks, strategic partners,
business practices regarding technology and schedules, legal actions and
personnel information, and all records compiled by Employee which pertain to
the business of the Company, and all rights, title and interest now existing
or that may exist in the future in and to any intellectual property rights
created by Employee for the Company, in performing Employee's duties during
the term of this Agreement shall be and remain the property of the Company.
Employee agrees to execute and deliver at a future date any further documents
that the Company, determines may be necessary or desirable to perfect the
Company's ownership in any intellectual or other property rights.
7. Arbitration.
7.1 Arbitral Claims. To the fullest extent permitted by law, all disputes
between Employee (and Employee's attorneys, successors and assigns) and
Company (and its Affiliates, shareholders, directors, officers, employees,
agents, successors, attorneys and assigns) of any kind whatsoever, including,
without limitation, all disputes arising under this Agreement ("Arbitral
Claims"), shall be resolved by arbitration. All persons and entities specified
in the preceding sentence (other than Company and Employee) shall be
considered third-party beneficiaries of the rights and obligations created by
this Section on Arbitration. Arbitral Claims shall include, but are not
limited to, contract (express or implied) and tort claims of all kinds, as
well as all claims based on any federal, state or local law, statute or
regulation, excepting only claims under applicable workers' compensation law
and unemployment insurance claims. By way of example and not in limitation of
the foregoing, Arbitral Claims shall include any claims arising under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act,
the Americans with Disabilities Act and the Nevada Fair Employment and Housing
Act;
7.2 Procedure. Arbitration of Arbitral Claims shall be in accordance with
the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as amended ("AAA Employment Rules"), as augmented in
this Agreement. Arbitration shall be initiated as provided by the AAA
Employment Rules, although the written notice to the other party initiating
arbitration shall also include a statement of the claim(s) asserted and the
facts upon which the claim(s) are based. Arbitration shall be final and
binding upon the parties and shall be the exclusive remedy for all Arbitral
Claims.
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7.3 Either party may bring an action in court to compel arbitration under
this Agreement and to enforce an arbitration award. Otherwise, neither party
shall initiate or prosecute any lawsuit or administrative action in any way
related to any Arbitral Claim. Notwithstanding the foregoing, either party
may, at its option, seek injunctive relief. All arbitration hearings under
this Agreement shall be conducted in Las Vegas, Nevada. THE PARTIES HEREBY
WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE
CLAIMS, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO TRIAL BY JURY AS TO THE
MAKING, EXISTENCE, VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE;
7.4 Arbitrator Selection and Authority. All disputes involving Arbitral
Claims shall be decided by a single arbitrator. The arbitrator shall be
selected by mutual agreement of the parties within thirty (30) days of the
effective date of the notice initiating the arbitration. If the parties cannot
agree on an arbitrator, then the complaining party shall notify the AAA and
request selection of an arbitrator in accordance with the AAA Employment
Rules. The arbitrator shall have authority to award equitable relief, damages,
costs and fees to the same extent that, but not greater than, a court would
have. The fees of the arbitrator shall be split between both parties equally,
unless this would render this Section of Arbitration unenforceable, in which
case the arbitrator shall apportion said fees so as to preserve
enforceability. The arbitrator shall have exclusive authority to resolve all
Arbitral Claims, including, but not limited to, whether any particular claim
is arbitral and whether all or any part of this Agreement is void or
unenforceable;
7.5 Continuing Obligations. The rights and obligations of Employee and
Company set forth in this Section on Arbitration shall survive the termination
of Employee's employment and the expiration of this Agreement.
8. Prior Agreements; Conflicts of Interest. Employee represents to Company:
(a) that there are no restrictions, agreements or understandings, oral or
written, to which Employee is a party or by which Employee is bound that
prevent or make unlawful Employee's execution or performance of this
Agreement; (b) none of the information supplied by Employee to Company or any
representative of Company or placement agency in connection with Employee's
employment by Company misstated a material fact or omitted information
necessary to make the information supplied not materially misleading; and (c)
Employee does not have any business or other relationship that creates a
conflict between the interests of Employee and the Company.
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9. Non-Competition. During the term of this Agreement Employee shall not:
9.1 Start employment with, offer consulting services to, or otherwise become
involved in, advise or participate on behalf of any other company, entity or
individual, in the field of the Company; and
9.2 Individually or through any agent, for Employee's benefit or on behalf
of any other person or entity (i) solicit employees of the Company, to entice
them to leave the Company; or (ii) solicit or induce and third party now or at
any time during the term of this Agreement who is providing services to the
Company, through license, contract, partnership, or otherwise to terminate or
reduce their relationships with the Company.
10. Miscellaneous Provisions.
10.1 Authority. Each party hereto represents and warrants that it has full
power and authority to enter into this Agreement and to perform this Agreement
in accordance with its terms.
10.2 Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Florida.
10.3 Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.
10.4 Captions. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope
or substance of any section of this Agreement.
10.5 Severability. In the event that any provision of this Agreement shall
be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
10.6 Amendment. This Agreement may be amended only in writing executed by
the parties hereto.
10.7 Attorney's Fees. In the event of a dispute the prevailing party shall
be entitled to be reimbursed for its legal fees by the other party.
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10.8 Finality of Agreement. The document, when executed by the parties,
supersedes all other agreements of the parties with respect to the matters
discussed.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the day and year first set forth above.
"EMPLOYEE"
/s/ XXXX XXXXXX
Xxxx Xxxxxx COO
Ballroom Dance Fitness Inc.
By: /s/ XXXXXXX XXXXXX
Xxxxxxx Xxxxxx CEO
BALLROOM DANCE FITNESS, INC.
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