Exhibit 10.1
EMPLOYMENT AGREEMENT
ENPLOYMENT AGREEMENT, dated as of the day of February, 2004, between
AMAZING NUTRITIONALS, INC., a Delaware Corporation, with principal offices at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the
"Company") and Xx. Xxxxx Xxxxx, residing at , NY herein referred to as "BC").
WITNESSETH:
WHEREAS, the Company desires to formalize its relationship with BC and
BC wishes to formalize his relationship with the Company; and
WHEREAS, BC is willing to formalize his relationship with the Company
on the terms and subject to the conditions contained herein.
NOW, THEREFORE, the parties have agreed to the following:
1. Employment. The Company agrees to appoint BC as President and CEO of
the Company.
2. No Breach of Obligations. BC represents and warrants to the Company
that he will use his best efforts to perform those duties attendant to the
position for which he is hired and that his entry into this Agreement with the
Company does not constitute a breach of any agreement with any other person,
firm or corporation, nor does any prior agreement between BC and any person,
firm or corporation contain any restriction or impediment to the ability of BC
to perform those duties for which he was hired, or which may be assigned to, or
reasonably expected of him. 1. 3. Services. During the full term of this
Agreement, BC shall perform to the best of his abilities the following services
and duties, in such manner and at such times as necessary to benefit the
Company.
4 Exclusivity. BC agrees that during the term of this Agreement he will
impart and devote the necessary time, energy, skill and attention to the
performance of his duties hereunder. This paragraph shall not exclude BC from
devoting part of his time to other firms, as long as they are in non-competitive
fields of endeavor, or making investments in business ventures outside the
general area of the Human Resources Industry.
5. Place of Performance. BC agrees to perform his duties hereunder and
agrees to the extent that it has been determined necessary and advisable, in his
discretion, to travel to any place in the United States, or to a foreign
country, where his presence is or may reasonably be required for the performance
of his duties hereunder.
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6. Compensation. The Company hereby agrees to compensate BC; and BC hereby
accepts for the performance of the services of Chairman of the Company, as
indicated below:
a) Fees. Subject to review and upward adjustment from time to time by
the Board of Directors, the Company shall pay to BC and annual salary
of NINETY THOUSAND DOLLARS ($90,000.00), per annum of the duration of
this Agreement, at a rate of SEVEN THOUSAND FIVE HUNDRED DOLLARS per
month, this amount is to increase to an annual salary of ONE HUNDRED
THOUSAND DOLLARS ($100,000.00), payable in equal monthly installments
upon the Company reaching a total gross sales of $1,000,000, and to ONE
HUNDRED TWENTY FIVE THOUSAND DOLLARS ($125,000.00), payable in equal
monthly installments, upon the Company reaching a total gross sales of
$2,000,0000;
b) Vacation: BC shall be entitled to a total of four (4) weeks vacation
in any calendar year
c) Stock: The previous issuance of 1,200,000 shares of Common Stock of
the Company, in consideration of the time and effort put forth by BC
for the performance of his duties; and
d) Bonus. BC shall be entitled to participation in any special
incentive compensation plan approved by the Board of Directors.
e) Insurance and Medical Benefits. The Company shall cover BC with
Health benefits as approved by the Board of Directors and equal to
those available to its executives;
f) Directors and Officers' Insurance: The Company shall cover BC with
an appropriate insurance policy for Directors and Officers
g) Other. BC shall be entitled to any other benefits as approved by the
Board of Directors for his position in the company
7. Representation and Warranties of BC. By virtue of his execution hereof,
and in order to induce the Company to enter into this Agreement, BC hereby
represents and warrants, as follows:
a) BC is not presently actively engaged in any business, employment or
venture, which is, or may be, in direct conflict with the business of
the Company; b)
BC has full power and authority to enter this Agreement with the
Company and to perform in the time and manner contemplated; and c)
BC's compliance with the terms and conditions of this Agreement, in the
time and the manner contemplated herein, will not conflict with any
instrument or agreement pertaining to the transaction contemplated
herein, and will not conflict in, result in a breach or, or constitute
a default under any instrument to which he is a party;
d) BC represents that he shall devote his best efforts to the success
of the Company.
8. Representation and Warranties of the Company. By virtue of the
execution of this Agreement, the Company hereby represents and warrants to BC as
follows:
a) The Company and BC agree that BC shall receive reimbursement for all
reasonable expenses incurred by BC in connection with the performance
of his duties hereunder subject to compliance with the Company's
procedures; and the Company shall pay to BC directly, or reimburse BC
for all other reasonable necessary and proven expenses and
disbursements incurred by BC for and on behalf of the Company in the
performance of the BC's duties during the term of this Agreement; and
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b) The Company shall indemnify BC against any and all claims arising
out of this Agreement, other than a breach of fiduciary duty or
fraudulent actions of BC.
9. Proprietary Rights. BC shall at no time before or after the termination
of his employment hereunder use or divulge or make known to anyone without the
express written consent of the Board of Directors of the Company (except to
those duly authorized by the Company to have access thereto), any marketing
systems, programs or methods, customer or client lists, computer programs
configurations, systems or procedures, ideas, formulae, inventions, discoveries,
improvements, secrets, processes or technical, or other information of the
Company, or any accounts, customer or client lists, transactions or business
affairs of the Company. All ideas, marketing systems, computer programs,
configurations, system or procedures, program or methods, formulae, inventions,
discoveries, improvements, secrets or processes, whether or not patentable or
copyrightable, made or developed by BC during the term of this Agreement, or
within three (3) years after its expiration or termination, and relating to the
business of the Company, shall be the exclusive right of the Company, whether or
not any claim of BC to compensation under Paragraph 6 hereof has been, or will
be satisfied, and BC agrees to provide the Company at its request and expense
such instruments and evidence as it may reasonably request to perfect, enforce
and maintain the Company's right to such property. At the conclusion of his
employment by the Company, BC shall forthwith surrender to the Company all
letters, brochures, agreements and documents of every character relating to the
business affairs and properties of the Company then in his possession and shall
not, without the Company's prior written consent retain or disclose any copies
thereof.
10. Competition. a) During the term of this Agreement, or upon the
termination of his employment, whichever event shall occur earlier, and for a
period of twelve (12) consecutive months thereafter, BC shall not, without the
prior written consent of the Company engage, either as a Consultant, Agent,
Proprietor, Officer, Director, Partner or majority stockholder in the business
directly related to that of the Company.
b) BC further covenants that during the stated term of this agreement, and
for the twelve (12) month period thereafter, whichever shall occur earlier, he
will not solicit any clients or customers known by him to be clients or
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customers of the Company for competitive business. The foregoing restrictions
shall not apply to a termination of BC's employment by the Company without
Cause, or a termination of the employment by BC because of a breach of the
Agreement by the Company or sale of the Company to an unrelated party. 11. Term
and Termination. This Agreement shall be deemed to be effective as of the date
indicated above and shall continue in full force and effect until the last day
of December, 2005, unless sooner terminated as hereunder set forth. This
Agreement shall automatically be renewed for an additional period of one (1)
year, unless the Board of Directors determines not to renew this Agreement, BC
notifies the Board of Directors of his desire not to renew the Agreement, or the
Company reaches a new agreement with BC.
a) Termination by the Company for Cause.
1) The Company may terminate BC's employment for Cause. Upon
such termination the Company shall have no further obligations to BC,
except for compensation, or other benefits due, but not yet paid.
2) "Cause" shall mean: (i) BC's willful and continued failure
substantially to perform his duties with the Company (other than as a
result of BC's incapacity due to illness or injury), if BC is not then
acting in the best interests of the Company, as determined by the Board
of Directors, or (ii) BC's willful engagement in misconduct which is
materially injurious to the Company, monetary or otherwise.
3) Termination for Cause shall be effectuated only if: (i) the
Company has delivered to BC a copy of "Notice of Termination", which
gives BC at least forty-five (45) business days prior notice,
therefore, affording BC the opportunity, together with BC's counsel to
be heard before the Board of Directors: and (ii) the Board of Directors
(after such Notice and opportunity to be heard) adopts a resolution
concurred in by not less than two-thirds of all directors of the
Company then in office, that in the good faith opinion of the Board of
Directors, BC was guilty of conduct set forth and specifying the
particulars thereof in detail.
b) BC's Rights Upon Certain Terminations. If the Company terminates
RS's employment hereunder, otherwise than for Cause:
1) The Company shall continue to pay BC his full base
compensation at the rate in effect on the Date of Termination for the
period (the "Post Termination Period") from the Date of Termination
until the end of the term of this Agreement. Notwithstanding anything
to the contrary, which may be contained herein, if BC shall have died
prior to the termination of this agreement, then, and in such event,
such payment of BC's full base compensation shall cease as of the time
of death;
2) BC shall be entitled to the full amount which would have
been due him under any bonus or profit sharing plan, or similar
arrangement, in which he was participating prior to the "Date of
Termination", for the full term of this Agreement, without any
proration or reduction, because of BC not being employed during the
full term;
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3) BC shall also be entitled to the full amount of any
contingent compensation benefit, which would have become vested, had
his employment continued; 4) The Company shall also pay to BC an amount
equal to all legal fees and expenses incurred by BC as a result of such
termination, including all fees and expenses, if any, incurred in
contesting or disputing any such determination or seeking to obtain, or
enforce, or retain any right or benefit provided by this Agreement.
These payments shall be made promptly on a quarterly basis as submitted
by BC;
5) The Company shall maintain in full force and effect for
BC's continued benefits (throughout the "Post-Termination Period"), all
life and health insurance and other benefits plans in which RS was
entitled to participate immediately prior to the "Date of Termination,"
provided that BC's continued participation is possible under the
general terms and conditions of such plans. If BC's participation is
any such plan is barred for any reason whatsoever, the Company shall
arrange to provide BC with benefits substantially similar to those
which he is entitled to receive under such plan until the expiration of
the term of this Agreement; and
6) BC shall not be required to mitigate the amount of any
payment provided for in this Paragraph by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this
Paragraph be reduced by any compensation earned by BC in any manner
after the "Date of Termination".
12. Notice of Termination. Any purported termination of BC's employment
shall be communicated by written "Notice of Termination" from one party to the
other party hereto. For the purposes of this Agreement a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of BC's employment,
under the provision so indicated. No purported termination by the Company of
BC's employment shall be effective if it is not effected pursuant to a "Notice
of Termination" satisfying the requirements of this Paragraph.
13. Date of Termination. "Date of Termination" shall mean the date on which
a "Notice of Termination" is given.
14. Successors; Binding Agreement.
a) The Company shall require any purchaser of all the business
of the Company, by agreement or form and substance satisfactory to RS,
to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform, if no
such purchase had taken place. As used in this Agreement, "Company"
shall mean the Company as hereinafter defined, and any successor to its
business, or assets, which executes becomes bound by all the terms and
provisions of this Agreement by operation of law.
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b) This Agreement shall inure to the benefit of and to be
enforceable by BC's personal or legal representative, executors,
administrators, successors, heirs, distributees, devisees and legates.
If BC should die while any amount would still be payable to him
hereunder if BC had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms
of this Agreement with the terms of this Agreement to BC's devisee,
legatee or other designee, or if there be no designee, to his estate.
15. Governing Law. This Agreement is being delivered in the State of New
York and shall be construed and enforced in accordance with the Laws of the
State of New York, irrespective of the state of Incorporation of the Company and
the place of domicile of BC. BC consents to the jurisdiction of the Courts of
the State of New York.
16. Prohibition Against Assignment. Except as herein above otherwise
expressly provided, BC agrees on behalf of himself and of his executors and
administrators, heirs, legates, distributees, and any other person, or persons
claiming benefits under him by virtue of this Agreement and the rights,
interests and benefits hereunder, shall not be assigned, transferred, pledged or
hypothecated in any way by BC or any executor, administrator, heir, legatee,
distrubutee or other persons claiming under BC by virtue of the Agreement and
shall not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge or hypothecation, or other dispositions of this
Agreement of such rights, interests and benefits contrary to the foregoing
provisions, or the levy of any attachment or similar process thereupon shall be
null and void and without effect.
17. Final Agreement. This Agreement represents the Final Agreement between
the parties and supercedes all previously executed Agreements and all verbal
representations made by any of the parties or their agents or their employees.
18. Changes. The parties agree that no changes will be made to this
executed Agreement except in writing, initialed by both parties and attached to
this document.
In Witness Whereof, the parties have executed this Agreement
as of the Day of February, 2004.
Dated as of the date first indicated above and is agreed to by:
AMAZING NUTRITIONALS, INC. Xxxxx Xxxxx
By:
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For the Board of Directors Xxxxx Xxxxx
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