EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of March 1,
2006, is by and between KidCARE Medical Television Network, Inc., a Florida
corporation with a mailing address of 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx,
Xxxxxxx 00000 (the "Company"), and Xxxxxx X. Xxxx, an individual maintaining a
mailing address of 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("Employee").
WITNESSETH:
In consideration of the covenants and agreements herein contained and
the monies to be paid hereunder, the Company agrees to hire the Employee, and
the Employee agrees to work for the Company upon the following terms and
conditions:
1. Duties of Employee: The Employee is employed by the Company to render
services on behalf of the Company as President.
2. Devotion of Time to Employment: The Employee shall devote such time and
attention to the business and affairs of the Company as is reasonably necessary
to carry out her duties hereunder, provided, however, the Employee shall devote
no less than forty (40) hours per week to her duties hereunder.
3. Compensation: For the services to be rendered by Employee under this
Agreement, the Company shall pay Employee a salary of $72,000.00 per year,
payable in arrears in equal semi-monthly installments of $3,000.00. Any salary
increases will be at the discretion of the Board of Directors of the Company.
The Company shall purchase at its expense, a major medical insurance policy
insuring the Employee, which policies shall be reasonably acceptable to the
parties hereto. The Employee warrants that she currently or historically, has no
exceptional medical problems which would cause her to be either uninsurable or
for which coverage would be excessively expensive.
Employee shall be eligible to participate in such stock option or stock bonus
plan or similar plans as are established by the Company's Board of Directors.
4. Term of Agreement: The term of this three-year Agreement shall commence on
March 1, 2006 and terminate on February 28, 2009.
5. Reimbursable Expenses: Except as herein otherwise provided, the Company shall
reimburse the Employee for all expenses, or the Employee is entitled to charge
to the Company all expenses incurred by her, in and about the course of her
employment by the Company, provided that sufficient proof is furnished to
Employer. Such expenses shall include but not be limited to:
a) License fees, membership dues in professional organizations, and
subscriptions to professional journals.
b) The Employee's necessary travel hotel and entertainment expenses
incurred in connection with overnight, out-of-town trips for
educational, professional or other related meetings or in connection
with other events that contribute to the benefit of the Company.
c) The Employee's necessary travel and entertainment expenses in
connection with in-town events for education professional and other
related meetings or in connection with other events that contribute
to the benefit of the Company.
d) Other expense as pre-approved.
6. Vacation: The Employee shall be entitled to two weeks of fully
paid vacation per calendar year or such additional time as is
authorized by the Company from time to time.
7. Sick or Other Leave: The Employee shall be entitled to such sick
or other leave on the same basis as the Company shall establish
for its employees holding positions and performing duties
substantially similar to those performed by Employee.
8. Termination of Agreement:
a) Termination by Company for Cause: The Company may terminate this
Agreement at any time for cause if Employee becomes unfit to properly
render services to Company hereunder because of: (i) alcohol or drug
related abuses consistent with applicable laws and Employer's
procedures, (ii) unable to effectively perform the duties assigned for
any reason, (iii) a material breach of this Agreement which is not
cured within thirty (30) days after written notice is given by Company
to Employee which notice shall specify in reasonable detail the
circumstances claimed to provide the basis for such termination, and/or
(iv) insubordination. Except for termination pursuant to Section
8.a.iii. hereof, termination shall be effective upon the delivery of
written notice thereof to the Employee or at such later time as may be
designated in said notice. In the event Company shall terminate
Employee pursuant to Section 8.a.iii. hereof, said termination shall be
effective thirty (30) days after written notice is delivered to the
Employee or at such later time as may be designated in said notice
provided said breach is not cured within the thirty day period. Upon
termination, the Employee shall vacate the offices of the Company on or
before such effective date. All compensation due hereunder shall cease
as of said effective date.
b) Termination by Employee for Cause: The Employee may elect to
terminate this Agreement at any time for cause provided she delivers
written notice of such intention to terminate not less than thirty (30)
days prior to the date of such termination, which notice shall specify
in reasonable detail the circumstances claimed to provide the basis for
such termination. As used in this subsection, the term for "cause"
shall mean if the Company unreasonably changes Employee's duties,
responsibilities, or working conditions or takes any other action which
impedes Employee in the performance of her duties hereunder. If the
Employee terminates this Agreement for cause, the Company shall, as
severance pay, pay the Employee an amount equal to six (6) months of
her compensation then in effect.
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c) Termination by Company Not for Cause: The Company may terminate
this Agreement at any time not for cause, provided however, that the
Company shall, as severance pay, pay the Employee an amount equal to
three (3) months of her compensation then in effect.
d) Termination by Employee Not for Cause: The Employee may elect to
terminate this Agreement at any time not for cause provided she
delivers written notice of such intention to terminate not less than
one month prior to the date of such termination. All compensation shall
cease as of the effective date specified in such notice.
9. Non-Disclosure; Prohibited Activities:
a) Confidentiality; Return of Company Property. Employee agrees that
during the course of her employment with the Company and until the date ending
two (2) years following the termination of his employment, Employee will keep
confidential information confidential and, except as necessary during the course
of her employment, will not disclose any confidential information to any person
or entity or, directly or indirectly, use for her own account, any confidential
information. Upon the termination of employment, Employee promptly will supply
to the Company all property (including all files, customer lists, etc.) that has
been produced or received by Employee during her employment with the Company,
whether or not related to the confidential information. The obligations of this
Section 11.a) will be in addition to any other agreements that Employee has
entered into with the Company regarding the receipt of confidential information.
b) Non-Solicitation; Non-Disparagement. Employee will not, during the
term of the Agreement and for the two (2) year period following the termination
of the Agreement for any reason, directly or indirectly: (i) solicit for
employment, or employ any person who, at the time of such solicitation or
employment, is employed by the Company or was employed by the Company during the
twelve (12) month period prior to the solicitation or employment or induce or
attempt to induce any person to terminate employment with the Company; (ii) do
business with or solicit customers, except as necessary during the course of her
employment, or engage in any activity intended to terminate, disrupt or
interfere with the Company's relationships with its customers; and (iii) engage
in any conduct or make any statement disparaging or criticizing the Company, or
any products or services offered by the Company.
c) Non-Competition. During the term of the Agreement and for the two
(2) year period following the termination of the Agreement for any reason, the
Employee will not, directly or indirectly, alone or in conjunction with any
other person or entity, own, manage, operate or control or participate in the
ownership, management, operation or control of, or become associated, as an
employee, director, officer, advisor, agent, consultant, principal, partner,
member or independent contractor with or lender to, any person or entity engaged
in or aiding others to engage in business competitive with the Company, located
anywhere in the United States of America.
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d) Divisibility of Covenant Period. If any covenant contained in the
Agreement is held to be unreasonable, arbitrary or against public policy, such
covenant shall be considered divisible both as to time, customers, competitive
services and geographical area, such that each month within the specified period
shall be deemed a separate period of time, each customer a separate customer,
each competitive service a separate service and each geographical area a
separate geographical area, resulting in an intended requirement that the
longest lesser time and largest lesser customer base, service offering and
geographical area determined not to be unreasonable, arbitrary or against public
policy shall remain effective and be specifically enforceable against Employee.
e) Enforcement. Employee acknowledges that (i) confidential information
is a valuable asset of the Company and use of such confidential information
would allow Employee to unfairly compete against the Company, (ii) the
restrictions contained in the Agreement are reasonable in scope and are
necessary to protect the Company's legitimate interests in protecting its
business, and (iii) any violation of the restrictions contained in the Agreement
will cause significant and irreparable harm to the Company for which the Company
has no adequate remedy at law. The parties agree that damages at law, including,
but not limited to, monetary damages, will or may be an insufficient remedy to
the Company and that (in addition to any remedies that are available to the
Company, all of which shall be deemed to be cumulative and retained by the
Company and not waived by the enforcement of any remedy available hereunder) the
Company shall also be entitled to obtain injunctive relief, including but not
limited to a temporary restraining order, a temporary or preliminary injunction
or a permanent injunction, to enforce the provisions of the Agreement, as well
as an equitable accounting of and constructive trust for all profits or other
benefits arising out of or related to any such violation, all of which shall
constitute rights and remedies to which the Company may be entitled.
f) Intent of Parties; Survival. The covenants of Employee contained in
the Section 11 shall be construed as agreements independent of any other
provision of Employee's employment (including employment under the Agreement)
and the existence of any claim of the Employee against the Company shall not
constitute a defense to the enforcement by the Company of any covenant contained
in the section. The covenants contained in this Section 11 shall survive
termination, expiration, non-renewal or cancellation of the Agreement.
10. Bonus: To provide greater incentive for the Employee by rewarding her with
additional compensation, a bonus in the form of cash or stock may be paid to the
Employee after a vote of the Board of Directors in the light of the Employee's
contribution to the Company.
11. Limitations on Authority: Without the express written consent from the Board
of Directors of the Company, the Employee shall have no apparent or implied
authority to:
a) Pledge the credit of the Company other than in the ordinary course
of business.
b) Release or discharge any debt due the Company unless the Company has
received the full amount thereof other than in the ordinary course
of business.
c) Sell, mortgage, transfer or otherwise dispose of any assets of the
Company.
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12. Survival of Representations and Warranties: The warranties, representations,
covenants and agreements set forth herein shall be continuous and shall survive
the termination of this Agreement or any part hereof.
13. Entire Agreement: This Agreement contains the entire understanding between
the parties hereto with respect to the transactions contemplated hereby, and
this Agreement supersedes in all respects all written or oral understandings and
agreements heretofore existing between the parties hereto.
14. Amendment and Waiver: This Agreement may not be modified or amended except
by an instrument in writing duly executed by the parties hereto. No waiver of
compliance with any provision or condition hereof and no consent provided for
herein shall be effective unless evidenced by an instrument in writing duly
executed by the party hereto sought to be charged with such waiver or consent.
15. Notices. Notices and requests required or permitted hereunder shall be
deemed to be delivered hereunder if mailed with postage prepaid or delivered, in
writing as follows:
As to Company: As to Employee:
KidCARE Medical Television Network, Inc. Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxx, Xxxxx X 0000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000 Xxxxxxx, XX 00000
16. Counterparts: This Agreement may be executed in one or more counterparts,
and all counterparts shall constitute one and the same instrument.
17. Captions: Captions used herein are for convenience only and are not a part
of this Agreement and shall not be used in construing it.
18. Execution of Document: At any time and from time to time, the parties hereto
shall execute such documents as are necessary to effectuate this Agreement.
19. Arbitration: Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, or regarding the failure or refusal to perform
the whole or any part of this Agreement shall be settled by arbitration in a
mutually agreeable location, in accordance with the rules of the American
Arbitration Association, and the judgment upon the award rendered may be entered
in any court having jurisdiction hereof. Any decision made by an arbitrator or
by the arbitrators under the provision shall be enforceable as a final and
binding decision as it if were a final decision or decree of a court of
competent jurisdiction.
20. General Provisions:
a) Assignability: This Agreement shall not be assignable by any of the
parties to this Agreement without the prior written consent of all
other parties to this Agreement.
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b) Service of Process: The parties agree that the mailing of any
process shall constitute valid and lawful process against them if sent
via U.S. certified mail to the address set forth in Section 17 herein.
c) Governing Law: The validity, construction and enforcement of, and
the remedies hereunder, this Agreement shall be governed in accordance
with the laws of the State of Florida. Venue for all purposes shall be
deemed to lie within Hillsborough County, Florida. The parties agree
that the Agreement is one for performance in Florida. The parties to
the Agreement agree that they waive any objection, constitutional,
statutory or otherwise, to a Florida court's exercise of jurisdiction
over any dispute between them and specifically consent to the
jurisdiction of the Florida courts. By entering into the Agreement, the
parties, and each of them understand that they may be called upon to
answer a claim asserted in a Florida court.
d) Severability of Provisions: The invalidity or unenforceability of
any particular provisions hereof shall not affect the remaining
provisions of this Agreement, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provisions were
omitted.
e) Successors and Assigns: The rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding and enforceable
upon the respective heirs, successors, assigns and transferees of
either party.
f) Reliance: All representations and warranties contained herein, or
any certificate of other instrument delivered in connection herewith,
shall be deemed to have been relied upon by the parties hereto,
notwithstanding any independent investigation made by or on behalf of
such parties.
g) Attorney's Fees: The parties hereby agree that in the event any of
the terms and conditions contained in this Agreement must be enforced
by reason of any past, existing or future delinquency of payment, or
failure of observance or of performance by any of the parties hereto,
in such instance, the defaulting party shall be liable for reasonable
collection and/or legal fees, trial and appellate levels, any expenses
and legal fees incurred, including time spent in supervision of
paralegal work and paralegal time, and any other expenses, and costs
incurred in connection with the enforcement of any available remedy.
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[SIGNATURE PAGE TO XXXX EMPLOYMENT AGREEMENT]
IN WITNESS WHEREOF, the parties have executed the Agreement on the day
and year first written above.
"COMPANY"
KIDCARE MEDICAL TELEVISION NETWORK, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman
"EMPLOYEE"
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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