EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into this 7th day of February, 2007, by and
between XXXX XXXXX ("Employee"), and PROPALMS USA, INC., a
Delaware corporation, whose address is Xxxx 0, Xxx Xxxxxxxx,
Xxxxxxxxxx, Xxxxxx, Xxxxx Xxxxxxxxx XX00 0XX
(the "Company").
Background
The Company desires, on the terms and conditions
stated herein, to employ the Employee as an employee of the
Company.
The Employee desire, on the terms and conditions
stated herein, to be employed by the Company as an employee
thereof.
Terms of Agreement
In consideration of the foregoing recitals, and of
the promises, covenants, terms, and conditions contained
herein, the parties hereto agree as follows:
1. Employment and Natural Terms. The Company
hereby employs Employee, and Employee hereby accepts
employment with the Company, for a term of one (1) year
(the "Term of Employment") beginning on the date of this
Agreement.
2. Position and Duties. Employee shall
perform all the functions as may be reasonably assigned
by the Board of Directors of the Company, or by the
officers of the Company, and shall serve in the capacity
of Chief Executive Officer.
3. Compensation and Benefits. As compensation for
the services to be rendered by Employee hereunder, the
Company shall pay to Employee the annual salary of $60,000
payable with such deductions as are required by law.
4. Reimbursement for Expenses. Company shall promptly
reimburse Employee for all documented business expenses
reasonably incurred by Employee in the performance of his
duties under this Agreement, including but not limited to,
travel expenses and other legitimate expenses. All expenses
shall be properly documented and a detailed expense report
submitted weekly with a request for reimbursement. All but
local travel shall require advance approval by the Company.
4. Termination. Notwithstanding the provisions of
Paragraph 1 hereof, the Term of Employment shall terminate
prior to the end of the period of time specified in such
Paragraph, upon:
(a) The death or disability of Employee.
(b) Immediately upon notice given by the Company to
Employee for and after the existence of "cause." For
purposes of this paragraph (b), the term "cause" shall be
defined as the material failure of Employee to perform the
services required pursuant to this Agreement; any dishonesty
by Employee in his/her dealings with the Company; the
commission of fraud by Employee; negligence in the
performance of the duties of Employee; or the
conviction (or plea of guilty or nolo contendere) of
Employee of any crime involving dishonesty or moral
turpitude; or any violation of any covenant or restriction
contained in Section 5 hereof.
(c) By the Company without "cause" on at least thirty (30)
days notice to Employee.
(d) By the Employee on at least thirty (30) days notice
to the Company.
For all purposes of this Agreement, termination for
"cause" shall be deemed to have occurred in the event of
Employee's resignation when, because of existing facts and
circumstances, subsequent termination for "cause" can be
reasonably foreseen.
Except as otherwise provided in Section 4(b), in the
event of termination of this Agreement pursuant to this
Section 4, Employee or his/her estate, as appropriate, shall
be entitled to receive (in addition to any fringe benefits
payable upon death in the case of Employee's death) the
base salary provided for herein up to and including the
effective date of termination, prorated on a daily basis.
5. Non-Competition. During the term of this agreement,
and for a period of two (2) years after any termination
pursuant to Section 4 hereof or any voluntary termination
or resignation by Employee, Employee shall not, individually
or jointly with others, directly or indirectly, whether for
his/her own account or for that of any other person or
entity, own or hold any ownership interest in any entity
engaged in and business the same as or similar to the business
of the Company anywhere in the United States of America, or
any "proposed business" to be owned or operated by the Company,
and Employee shall not act as an officer, director, employee,
shareholder, partner, independent contractor, consultant,
principal, agent, proprietor, or in any other capacity for,
nor lend any assistance (financial or otherwise) or
cooperation, directly or indirectly, to any such person or
entity. For purposes of this Section 5, any businesses
owned or operated by the Company shall include any businesses
operated or owned by an affiliate of the Company, any successor
entity to the Company, and any entity in which the Company
has an interest, including, but not limited to, an interest
as Franchisor.
6. Non-Disclosure; Non-Solicitation. Except in the
performance of his/her duties hereunder, at no time during
the term of this Agreement or at any time thereafter shall
Employee, individually or jointly with others, for the
benefit of Employee or any third party, publish, disclose,
use, or authorize any else to publish, disclose, or use any
secret or confidential material or information relating to
any aspect of the business or operations of the Company,
including, without limitation, any secret or confidential
information relating to the business, customers, trade or
industry practices, trade secrets, technology, or know-how
of the Company.
7. Specific Performance. With respect to the covenants
and agreements of Employee set forth in Sections 5 and 6
hereof, the parties agree that a violation of such covenants
and agreements will cause irreparable injury to the Company
and that the Company shall be entitled, in addition to any
other rights and remedies it may have, at law or in equity,
to apply to a court of competent jurisdiction for an
injunction to restrain Employee from violating, or
continuing to violate, such covenants and agreements. In
the event the Company does apply for such an injunction,
Employee shall not raise as a defense thereto that the
Company has an adequate remedy at law.
8. Reasonableness of Restrictions; Reformation;
Enforcement. The parties hereto recognize and acknowledge
that the geographical and time limitations contained in
Sections 5 and 6 hereof are reasonable and properly required
for the adequate protection of the Company's interest. It
is agreed by the parties hereto that if any portion of the
restrictions contained in Sections 5 and 6 are held to be
unreasonable, arbitrary, or against public policy, then the
restrictions shall be considered divisible, both as to the
time and to the geographical area, with each month of the
specified period being deemed a separate period of time and
each radius mile of the restricted territory being deemed
a separate geographical area, so that the lesser period of
time or geographical areas shall remain effective so long
as the same is not unreasonable, arbitrary, or against
public policy. The parties hereto agree that in the event
any court of competent jurisdiction determines the specified
period or the specified geographical area of the restricted
territory to be unreasonable, arbitrary, or against public
policy, a lesser time period or geographical area which is
determined to be reasonable, nonarbitrary, and not against
public policy may be enforced against Employee. If Employee
shall violate any of the covenants contained herein and if
any court action is instituted by the Company to prevent or
enjoin such violation, then the period of time during which
the Company's business activities shall be restricted, as
provided in this Agreement, shall be lengthened by a period
of time equal to the period between the date of Employee's
breach of the terms or covenants contained in this Agreement
and the date on which the decree of the court disposing of
the issues upon the merits shall become final and not
subject to further appeal.
9. Assignability. This Agreement and the rights and
duties created hereunder shall not be assignable or
delegable by either party without the prior written consent
of the other party.
10. Notices. All notices or other communications
provided for herein to be given or sent to a party by the
other party shall be deemed validly given or sent if in
writing and mailed, postage prepaid, by registered or
certified United States mail, and addressed to the
parties at their addresses hereinabove set forth. Either
of the parties may give notice to the other party at any
time, but the method specified above, of a change in the
address at which, or the person to whom, notice is to be
addressed.
11. Waiver. The failure to enforce any term or
condition of this Agreement shall not be deemed a waiver
of that term or condition for the future, nor shall any
specific waiver of a term or condition at one time be
deemed a waiver of such term or condition for any future
time.
12. Binding Effect. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties
hereto and their legal representatives, and proper
successors or assigns as the case may be.
13. Governing Law. Except as otherwise specifically
provided herein, the validity, interpretation, and
performance of this Agreement shall be governed by the
laws of the state of Florida, and the parties hereto
specifically consent to jurisdiction and venue in
Orange County, Florida.
14. Captions. The captions of this Agreement have
been assigned thereto for convenience only, and shall
not be construed to limit, define, or modify the
substantive terms hereof.
15. Entire Agreement; Counterparts. This Agreement
constitutes the entire agreement between the parties
hereto concerning the subject matter hereof, and
supersedes all prior memoranda, correspondence,
conversations, and negotiations. This Agreement may
be executed in several counterparts that together shall
constitute but one and the same Agreement.
16. Costs of Enforcement. In the event a party
initiates legal action (including both trial and
appellate proceedings) to enforce his or its rights
hereunder, the prevailing party in such action shall
recover from the non-prevailing party his or its
reasonable litigational expenses (including, but not
limited to, reasonable attorneys' fees and court
costs) of all such proceedings.
IN WITNESS WHEREOF, the undersigned have
hereunto signed this Agreement on the date set
forth on Page 1.
"Company"
PROPALMS USA, INC.
By:
Xxxxxx Xxxxxxx, President
"Employee"
Xxxx Xxxxx
