EXHIBIT 10.91
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 2nd day of January 2002,
between XXX XXXXXXX (hereinafter referred to as "Employee") and VITAFORT
INTERNATIONAL CORPORATION, a Delaware corporation, by and through its Board of
Directors (hereinafter referred to as "Employer").
IN CONSIDERATION of the mutual promises set forth below, Employee and
Employer hereby agree as follows:
1. EMPLOYMENT. Employer hereby agrees to employ Employee and Employee
hereby agrees to provide services to Employer in the position of Chief Executive
Officer upon the terms and conditions hereinafter set forth.
2. DUTIES. Employee shall perform the duties and responsibilities set forth
in Exhibit "A" during the term of this Agreement.
3. TERM OF AGREEMENT. The parties agree that the initial term of this
Agreement shall be two (2) years commencing January 1, 2002.
Notwithstanding any contrary provision set forth hereinabove, Employer
shall have the right, at its option, to terminate this Agreement for cause upon:
a.) Employee's material breach of this Agreement;
b.) Employee's willful misconduct or gross negligence in the discharge of
his duties hereunder; or
c.) Employee's commission of any act of moral turpitude which detrimentally
affects the Company or is reasonably likely to detrimentally affect the Company;
provided, however, that prior to terminating Employee pursuant to clause (a),
Employer shall give Employee at least fifteen (15) business days' written notice
of an intent to terminate due to such failure to act or breach, which notice
shall specify such failure or breach, and, if Employee cures such failure or
breach within such fifteen (15) day period, this Agreement shall remain in full
force and effect.
Employer may also terminate the employment of Employee hereunder upon the
death of Employee or upon Employee's inability by reason of sickness or
disability, as described in Paragraph 11 below, to perform his obligations for a
period of more than one hundred eighty (180) days consecutively without payment
of the lump sum described above.
Employee may terminate his employment hereunder upon at least fifteen (15)
days' prior written notice to Employer of a material breach of this Agreement by
Employer, which notice shall specify such breach, provided that if Employer
cures such breach within such fifteen (15) day period, this Agreement shall
remain in full force and effect.
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4. EMPLOYEE WORKING CONDITIONS. Employer agrees that, during the term of
this Agreement, Employer: (1) shall maintain a board of directors which shall
include the Employee; (2) shall treat Employee with respect and professional
courtesy commensurate with Employee's position; (3) shall provide, establish and
maintain reasonable working conditions for Employee and abide by all state,
federal and local employment regulations and laws; (4) shall not, without the
express written consent of Employee, alter or significantly reduce the duties
and responsibilities assigned to Employee as set forth in Exhibit "A" to this
Agreement; (5) shall not, without Employee's express written consent, reduce the
facilities and perquisites made available to Employee at the time this Agreement
is executed and as enhanced during the term of this Agreement; (6) shall not
materially reduce the type or level of Employee benefits to which Employee is
entitled at the time this Agreement is executed and as enhanced during the term
of this Agreement; and (7) shall allow Employee to perform his duties from
locations other than the Employer's place of business. If the parties mutually
agree to relocate the corporate offices, Employee shall within a reasonable time
thereafter arrange to be present at the corporate offices from time to time on a
regular basis demonstrating a presence commensurate with his position.
5. SALARY. As consideration for Employee's services as set forth in Exhibit
"A" to this Agreement, Employee agrees to accept and Employer agrees to pay
Employee a lump sum salary of one hundred thousand and 00/100 dollars
($100,000.00) payable in the form of 20,000,000 shares of Employer's restricted
common stock. The stock certificates in the denominations designated by Employee
shall be issued immediately upon request by Employer after a registration
statement registering the 20,000,000 common shares on a form S-8 Registration
Statement, or another registration form that is acceptable to Employee, shall
become effective.
a). The parties hereto acknowledge that this advance is in full
settlement of all salary obligations to the Employee by the Employer.
b). Employer agrees not to withhold taxes upon issuance of the
20,000,000 shares of restricted common stock nor require the payment of
estimated taxes until such time as the substantial the Employee makes a Section
83(b) election pursuant to the Internal Revenue Code.
6. EXPENSES. The Employee shall be reimbursed by Employer for all
reasonable expenses incurred in the course of performing services for the
Employer including but not limited to expenses related to mobile communications,
travel, entertainment and the like. Employees shall receive reimbursement within
10 days of providing the Employer on the form provided to the Employee by the
Employer a report of his expenses including receipts where available.
7. BENEFITS. Employee shall be provided health and welfare benefits
including but not limited to medical, dental, disability and life insurance and
vacation and sick leave on the same terms and conditions as similarly situated
employees. Employee, at his election, may be reimbursed for medical plan
selected by him rather than receiving coverage under the medical plans
maintained by the employer. Long term disability insurance shall be fully paid
during all periods of eligibility requiring premium. In addition, Employee shall
be entitled to qualify for and participate in other Employer benefit plans, 401K
plan, bonus programs and stock option programs, if any, in accordance with the
terms of such plans and programs.
8. HEALTH AND WELFARE. As further consideration for Employee's services,
Employer agrees to provide after termination of this Agreement health and
welfare insurance benefits to Employee under the same terms and conditions as
provided to Employee during the term of this Agreement during the period and to
the extent required by COBRA.
9. TRADE SECRETS. Employee will, in the course of his duties on behalf of
Employer, be advised of certain business matters and affairs of Employer
regarding its clients and the management of its business. The duties performed
by Employee for Employer place him in a position of trust and confidence with
respect to certain trade secrets relating to the business of Employer and not
generally known to the public. Employee will not, either during the term of his
employment or any time in the future, directly or indirectly:
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a.) disclose or furnish, directly or indirectly, to any other person,
firm, agency, corporation, client, business, or enterprise, any trade secrets
acquired by him during the term of this Agreement except in confidence in the
ordinary course of the Company's business where appropriate to serve the
interests of the Company.
b.) individually or in conjunction with any other person, firm,
agency, company, client, business, or corporation, employ or cause to be
employed any trade secret in any manner whatsoever, except in furtherance of the
business of Employer.
Notwithstanding any contrary provision set forth hereinabove, and without
limiting the scope of the covenants made by Employee in this Paragraph 10,
Employee agrees that Employee shall, from time to time, subscribe to and execute
agreements with the Company in the form and content subscribed to and executed
by other employees of the Company to protect the Company's trade secrets and
proprietary information.
10. CORPORATE AUTHORITY. Employer acknowledges and agrees that Employer has
the full authorization of its Board of Directors to enter into and perform all
aspects of this Agreement from and after the date it is executed.
11. BREACH. Each party to this Agreement shall indemnify and hold the other
harmless for any and all losses, costs, damages, expenses, (including attorneys'
fees) incurred by the indemnified party arising out of such party's breach of
this Agreement or any part thereof, regardless of the judgment or decisions
arising therefrom. All such losses, costs, damages, expenses and fees shall be
paid within thirty (30) days following tender of a written request. Employer
shall not be subject to liability for any breach caused solely by the actions or
inactions of the Employee relating to duties of the Employer pursuant to the
terms of this Agreement.
12. POLICIES. No change in Employer policy, rules or regulations shall
alter, modify or revoke any provision of this Employment Agreement.
13. INDEMNITY AND HOLD HARMLESS. To the fullest extent provided by the law,
Employer agrees Employer shall indemnify and hold Employee harmless from any and
all liabilities and/or losses, costs, damages or expenses, (including attorney's
fees) incurred by Employee in the course and scope of Employee's duties for
Employer or related in any way to Employee's association with Employer,
including but not limited to, liabilities arising from shareholder derivative or
direct law suits. Employer shall insure Employer's ability to so indemnify
Employee and shall present evidence of such insurance coverage reasonably
satisfactory to Employee within thirty (30) days of the execution of this
Agreement.
14. EMPLOYER'S COVENANT REGARDING RESTRUCTURE. Employer has represented to
Employee that Employer's Board of Directors intends to seriously consider a
restructure of the Employer, and that the same is in the best interests of the
Company. Such restructure shall be performed in such manner as necessary to
maintain the highest possible share price for outstanding shares and assist
Employee with his mission as set forth on Exhibit A.
15. SUCCESSORS. This Agreement shall be binding upon the parties hereto and
upon their heirs, administrators, representatives, executors, successors and
assigns and shall inure to the benefit of said parties and each of them and
their heirs, administrators, representatives, executors, successors and assigns.
Employer specifically agrees it will require any successor to all or
substantially all of the business, stock and/or assets of the Employer to
expressly assume and agree to perform obligations under this Agreement in the
same manner and to the same extent that the Employer would be required to
perform.
16. SEVERABILITY. Employer and Employee agree that should any provision of
this Agreement be declared or be determined by any court of competent
jurisdiction to be illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining parts, terms and provisions shall not be
affected thereby, and said illegal, unenforceable or invalid part, term or
provision will be deemed not to be part of this Agreement.
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17. CONFIDENTIALITY. Employee and Employer agree that they shall keep the
terms of this Agreement entirely confidential, except as and to the extent
required to be disclosed by applicable law, code or regulation.
18. JURISDICTION AND VENUE. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California. The parties
agree that any claim or action arising out of this Agreement shall be arbitrated
in accordance with the arbitration provisions and guidelines set forth on
Exhibit "B" attached hereto and incorporated herein by this reference. The
parties anticipate that all disputes hereunder shall be arbitrated; provided,
however, that any matter not subject to arbitration as a matter of law shall be
brought in a court of competent jurisdiction in the county and judicial district
in which the principal offices of the Company are located at the time the action
is commenced.
19. ENTIRE UNDERSTANDING. This Agreement contains all the understandings
and agreements between the parties concerning Employee's employment. This
Agreement replaces any and all prior agreements between Employee and Employer
related to Employee's employment and any and all such prior Agreements are
hereby canceled.
20. ATTORNEY'S FEES REIMBURSEMENT. Employer agrees to reimburse Employee
for Employee's reasonable attorney fees incurred by Employee in connection with
the negotiation and execution of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement the day and
year first written above at Los Angeles, California.
EMPLOYEE:
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Notices in Care of: Xxx Xxxxxxx
0000 Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
VITAFORT INTERNATIONAL CORPORATION
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President
Notices in Care of: Vitafort International Corporation
Xxxxxxx X. Xxxxxxxxx, President / Corporate Secretary
0000 Xxxxxxx Xxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
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Exhibit "A"
Job Description Chief Executive Officer
1. Reports to Board of Directors.
2. All other executives report to him.
3. Has all authority traditionally granted to CEO including
but not limited to sole authority to create, hire, fire,
promote, demote, set salaries and other compensation and
benefit levels for all executive positions, excluding other
executive level positions hired and terminated by the Board
of Directors, whether or not the individuals therein are
also corporate officers.
4. A substantial condition of the Employee's employment shall
be to work toward the reorganization of the Company's
corporate debt in an effort to clean up the balance sheet
to allow for the acquisition of new business operations
either by way of purchase or merger including all required
due diligence, completion of any required agreements and
obtaining shareholder approval if required.
5. Has authority to select and/or retain outside service
providers such as accountants, attorneys etc.;
6. Has authority to delegate any and all tasks to competent
individuals.
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Exhibit "B"
Arbitration Provisions and Guidelines
ARBITRATION AGREEMENT
A. Any dispute(s) or difference(s) which arise during the course of this
Agreement and which either involve its interpretation or meaning, or relate to
performance required hereunder shall be submitted to and resolved by binding
arbitration; provided, however, that the parties are not waiving and are
expressly reserving their right to seek injunctive relief by judicial process.
Nevertheless, the parties may, by subsequent consent, agree to submit requests
for injunctive relief to an arbitrator or arbitration panel.
B. If either party shall, in the opinion of the other party, be in breach
of or default in the performance or observance of any term or condition of this
Agreement, the non-defaulting party shall notify the defaulting party in writing
of such fact, and the defaulting party shall have thirty (30) days from the
receipt of such notice to remedy or correct such breach or default. If the
non-defaulting party asserts that the breach of default has not been timely and
properly cured, it may commence arbitration as described herein and ask the
arbitrator to deem this Agreement terminated and/or to grant such relief as is
shown to be appropriate.
C. In the event the parties are unable to agree upon an arbitrator to hear
and resolve their differences (hereinafter the "Dispute"), each party shall
designate one person licensed as an attorney in the state containing the
headquarters of the Company. Said two attorneys shall select the neutral
arbitrator. Unless agreed upon by the parties to the contrary, arbitration shall
be by a single, neutral arbitrator (hereinafter, the "Arbitrator").
D. If the two attorneys designated in the immediately preceding paragraph
cannot agree on the selection of the Arbitrator, the matter of the selection of
the Arbitrator shall be submitted to the presiding judge of the District Court
for the jurisdictionally appropriate county in which the Company's principal
office is located. In such event, the selection shall be limited to one person
from a panel of retired judges, each party hereto submitting three names for the
court to consider and from which the Arbitrator shall be selected.
E. The Arbitrator shall have the full and absolute authority to interpret
this Agreement, to deem conduct by the parties as either in compliance with or
in breach of this Agreement, to terminate this Agreement, and (if a breach is
found) to award appropriate damages or relief.
F. The Dispute shall be settled in accordance with then existing law of the
State of California. While evidence may be accepted, omitted, considered or
excluded in the discretion of the Arbitrator, the Arbitrator shall be bound by
that state's rules of evidence and by the application of that state's uniform
act, if any, governing arbitration. The final decision of the Arbitrator shall
be in the form of a reasoned decision and be served on the parties, in writing,
within 20 days after the conclusion of the arbitration hearing.
G. The Arbitrator's decision shall be binding and conclusive. Neither party
shall pursue, prosecute or otherwise file any legal action or proceeding (other
than to seek injunctive relief as described above). Except as provided in the
uniform act, if applicable, as provided above, no appeal shall be taken from the
Arbitrator's decision or from any subsequent court order confirming said
decision.
H. The parties shall equally advance the costs incurred by arbitration. The
Arbitrator, however, shall have the discretion to award such costs as well as
attorneys' fees to the party prevailing in the arbitration proceedings.
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