EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of ____________,
1997, effective September __, 1997, by and between A One A Produce &
Provisions, Inc., a Florida corporation (the "Company") and Xxxxxxx Xxxxx
(hereinafter referred to as the "Employee").
WHEREAS, the Company desires to enter into an agreement for the employment
of Employee by the Company and to be assured of the continued services of
Employee and Employee desires to enter into employment by the Company on the
terms provided herein.
NOW, THEREFORE, in consideration of the premises and of the terms,
covenants and conditions hereinafter contained, the parties hereto agree as
follows:
1. Employment, Duties and Authority.
The Company hereby employs Employee and Employee hereby accepts employment
by the Company in an upper-level management position, on the terms, covenants
and conditions herein contained. The Employee shall have such duties,
responsibilities and authority as the by-laws of the Company shall from time to
time provide and as the Board of Directors of the Company shall from time to
time prescribe. During the term of Employee's employment hereunder, Employee
shall devote his full time to the performance of his duties and responsibilities
hereunder and will perform such duties and responsibilities faithfully and with
reasonable care for the welfare of the Company. Employee shall provide services
to the Company principally at its location in Broward County or at such other
reasonably proximate location. During the term of his employment hereunder,
Employee shall not perform any services for compensation for any person, firm,
partnership or corporation in competition with the Company other than the
Company without the express written consent of the Board of Directors of the
Company.
2. Compensation.
(a) Base Salary: The Company shall pay to Employee during the term
of employment hereunder an annual salary of $65,000 ("Base Salary"),
subject to review and increase by a majority in interest of the members of
the Company from time to time. Such salary shall be paid by the Company to
Employee in 26 bi-weekly installments, less amounts which the Company may
be required to withhold from such payments by applicable federal, state or
local laws or regulations. Such Base Salary shall be increased for each of
the second, third and fourth years of the term of employment by an amount
equal to 25% of any discretionary bonus paid to Employee for the
immediately preceding year, such increase in each case not to exceed
$5,000. The parties thereafter may adjust the Base Salary for the balance
of the term hereof as they shall mutually agree. In the event the parties
fail reach an agreement with
respect to such adjustment, Employees Base salary shall increase as stated
above for the remainder of the term of this Agreement. Employee shall also
be eligible to receive an annual bonus as determined by the Board of
Directors of the Company.
(b) Bonus:
(I) At the discretion of the Board of Directors of the Company,
Employee may be entitled to a bonus each calendar year. The Company
may establish and communicate standards to Employee for the
achievement of bonus compensation each calendar year.
(ii) In addition to the discretionary bonus provided for in
clause 2(b)(I) above, Employee shall be entitled to the following cash
bonus: (A) if, for the first calendar year of the term hereof, the
"Pre-tax Income" of the Company equals at least $1,100,000 ("Base
Amount"), then the Employee shall be paid a cash bonus equal to 10% of
his Base Salary then in effect; (B) if such Pre-tax Income for such
period is 120% of said Base Amount, Employee shall be paid an
additional 10% of his then Base Salary; (C) if said Pre-tax Income is
140% of the Base Amount, Employee shall be paid an additional 15% of
his then Base Salary; and (D) if said Pre-tax Income is 160% of the
Base Amount, Employee shall be paid an additional 15% of his then Base
Salary; and (E) if said Pre-tax Income is 200% of said Base Amount,
Employee shall be paid an additional 20% of his then Base Salary as a
bonus. Such bonus shall be paid incrementally pro rata for any "Pre-
Tax Income" exceeding 120% of the Base Amount in any calendar year
during the term hereof.
For each subsequent calendar year, during the term hereof,
following the first calendar year, the Base Amount upon which such
bonuses shall be calculated shall be the greater of $1,100,000 or the
defined Pre-tax income of the Company of the immediately-preceding
calendar year, and the percentages of the then Base Salary to be paid
to Employee as a cash bonus shall be as aforesaid.
(iii) For purposes of clause 2(b)(ii) above, the term "Pre-tax
Income" shall mean the income of Company (before deducting federal,
state and local income taxes) for the applicable calendar year,
determined by the independent certified public accountants of the
Company in accordance with generally accepted accounting principles
consistently applied. To the extent any period during the term hereof
is not a complete calendar year, such bonus shall be paid pro rata for
the balance of the incomplete period.
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(iv) In addition, the Company will use its best efforts to issue
10,000 shares of its common stock to Employee under its current
Employee Stock Option Plan.
3. Benefits; Vacation; Expense Reimbursement.
(a) Benefits. The Employee shall be entitled to, and shall receive,
all other perquisites and benefits of employment available to other
employees of the Company generally, including, without limitation,
participation in any group health plans or pension or profit-sharing plans,
as shall be instituted by the Company, in its sole discretion.
(b) Vacation. Employee shall be entitled to two weeks' vacation
annually, provided however, that no more than two weeks of vacation time
may be taken continuously. After two years, Employee shall be entitled to
three weeks vacation annually.
(c) Expense Reimbursement. During the term hereof, the Company shall
reimburse Employee for all reasonable and necessary expenses incurred by
Employee in the performance of his duties hereunder, including without
limitation, travel, meals, lodging, office supplies or equipment subject to
such reasonable limitations, restrictions and reporting standards as the
Board of Directors of the Company may from time to time establish. Employee
shall provide to the Company promptly after incurring any such expenses a
detailed report thereof and such documentation as the Company shall from
time to time require and as shall be sufficient to support the
deductibility of all such expenses by the Company for federal income tax
purposes.
(d) Other Benefits. Notwithstanding the foregoing, Employee shall be
entitled to the following during the term hereof:
(I) $600 per month as and for payment or reimbursement of health
insurance premiums for Employee and his immediate family members;
(ii) $750 per month as and for a car allowance (Employee pays
his own maintenance and insurance with respect thereto); and
(iii) the use of a Company car phone.
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4. Term.
(a) Term. The employment of Employee hereunder shall be for a term
of five years commencing on September __, 1997 and expiring on September
__, 2002.
(b) Renewal. This term may be renewed upon written agreement of the
parties. The parties shall begin to use their best efforts to secure
renewal of this Agreement in the fourth year of the term of this Agreement.
If such agreement to renew shall not be reached by the end of the term due
to the Company's actions, the provisions of paragraph 7 shall not apply. In
the event the parties fail to reach an agreement to renew, such failure to
renew shall be considered due to the Company's actions if the Company
offers compensation to the Employee in an amount less than the compensation
paid in the fifth year of the term of this Agreement. If, however, the
failure to reach an agreement to renew is due to the actions of the
Employee, the provisions of paragraph 7 shall survive expiration of the
term.
5. Termination By Company.
(a) Company's Right To Terminate Prior To Expiration Of Term. The
Company shall be entitled to terminate this Agreement prior to the
expiration of its term on the occurrence of either:
(i) an event of default with respect to Employee, as provided
herein, or
(ii) Death or Total Disability of Employee, as defined herein,
occurring during the term or any renewal term of Employee's employment
hereunder; or
(iii) subject to paragraph 5(f) hereof, without cause.
(b) Event Of Default By Employee. For purposes of this paragraph, an
event of default with respect to Employee shall include:
(i) any willful failure by Employee to perform his duties,
responsibilities or obligations hereunder in a faithful and diligent
manner or with reasonable care and (if such failure can be cured) the
failure by Employee to cure such failure within 10 days after written
notice thereof shall have been given to Employee by the Company;
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(ii) embezzlement or conversion by Employee of any funds of
Employer or any client of Employer;
(iii) destruction or conversion by Employee of any property of
Employer, without Employer's consent;
(iv) Employee's conviction of a felony;
(v) Employee's adjudication as an incompetent;
(vi) Employee's habitual intoxication;
(vii) Conduct unbefitting an employee of Company which casts
Company in a shameful light; or
(viii) Employee's breach of paragraphs 7 or 8 hereof.
(c) Total Disability. Total Disability of Employee shall be deemed
to have occurred hereunder either as determined by the definition of
disability under any disability policy through an insurance company in
effect for the Company or, if none is in effect, when Employee shall have
failed or been unable to perform his duties hereunder on a full-time basis
for an aggregate of 180 days ("Disability Period") and with a certification
from a licensed physician in the State of Florida that Employee is
permanently disabled from performing his duties hereunder. Where the
conclusion of one Disability Period is followed within six months by the
start of a second Disability Period and the disabilities are the same or
related, both Disability Periods shall be aggregated for purpose of this
subparagraph (c).
(d) Effect Of Termination. In the event of termination of this
Agreement and Employee's employment pursuant to paragraph 5(a) hereof, all
rights and obligations of the Company and Employee hereunder shall
terminate on the date of such termination, subject to the following:
(i) Employee shall be entitled to receive (subject to any rights
of setoff or counterclaim by the Company) all salary, additional
compensation and benefits which shall have accrued prior to the date of
such termination, and the obligation of the Company for the payment of
salary, additional compensation or benefits shall terminate as at the date
of such termination; and
(ii) All rights of the Company or Employee which shall have
accrued hereunder prior to the date of such termination, and all provisions
of this Agreement which are to survive termination of employment of
Employee
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hereunder, including but not limited to paragraph 7, shall survive
such termination, and the Company and Employee shall continue to be
bound by such provisions in accordance with the terms thereof.
(e) Death Of Employee. This Agreement and all rights and obligations
of the parties hereunder shall terminate immediately upon the death of Employee
except that the Company shall pay to the heirs, legatees or personal
representative of Employee all compensation or benefits hereunder accrued but
not paid to the date of Employee's death.
(f) Termination Without Cause. If the Company terminates this
Agreement without cause, in addition to any other rights Employee may have
hereunder, the Company shall pay to the Employee an amount equal to eight bi-
weekly installments of Employee's then Base Salary, such payment to be deemed a
severance payment and not a penalty. Moreover, in the event of such termination
without cause, the provisions of paragraph 7 shall not apply.
6. Termination By Employee.
(a) Employee's Right To Terminate. Employee shall be entitled to
terminate his employment with the Company under this Agreement prior to the
expiration of its term upon the occurrence of an event of default with
respect to the Company.
(b) Event Of Default By Company. For purposes of this paragraph, an
event of default with respect to the Company shall include:
(i) any failure by the Company to perform its obligations to
Employee under this Agreement and (if such failure can be cured) the
failure by the Company to cure such failure within 10 days after
written notice thereof shall have been given to the Company by
Employee;
(ii) the Company's admitting in writing its inability to pay its
debts generally as they become due;
(iii) the Company's filing a petition for relief under any
chapter of Title 11 of the United States Code or a petition to take
advantage of any insolvency laws of the United States of America or
any state thereof;
(iv) the Company's making an assignment for the benefit of its
creditors;
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(v) the Company's consent to the appointment of a receiver of
itself or of the whole or any substantial part of its property; or
(vi) the Company's filing a petition or answer seeking
reorganization under the Federal Bankruptcy Laws or any other
applicable law or statute of the United States of America or any state
thereof.
(c) Effect Of Termination. In the event of termination of the
Agreement by Employee in accordance with paragraph 6(a) hereof, all rights
and obligations of the Company and Employee hereunder shall terminate on
the date of such termination, subject to the following:
(i) Employee shall be entitled to receive all salary,
additional compensation and benefits which shall have accrued prior to
the date of such termination and the Company's obligation for the
payment of salary, additional compensation and benefits shall
terminate as of the date of such termination; and
(ii) All rights of the Company or Employee which shall have
accrued hereunder prior to the date of such termination and all
provisions of this Agreement which are to survive termination of
employment of Employee hereunder, except the provisions of paragraph 7
shall survive such termination.
7. Restrictive Covenant.
(a) Non-Competition. Employee agrees that, so long as he is employed
by Company pursuant to this Agreement, and for a period of 18 months
following termination of this Agreement by Employee pursuant to paragraph
5, other than paragraph 5(f) hereof, he will not, directly or indirectly,
as a sole proprietor, member of a partnership, stockholder, investor,
officer or director of a corporation, or as an employee, agent, associate
or consultant of any person, partnership or corporation other than Company
or in any other capacity:
(i) own, manage, operate, participate in, perform services for
or otherwise carry on a business similar to or competitive with the
business of Company within 500 miles of Fort Lauderdale, Florida;
(ii) induce or attempt to persuade any employee of Company to
terminate such employment relationship in order to enter into any such
relationship with such person or to enter into any such relationship
on behalf of any other business organization in competition with
Company or any of its affiliates;
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(iii) solicit any business related to the business conducted by
Company from any clients, agencies of clients, customers, or
prospective or former clients, agencies of clients or customers of
Company; or
(iv) perform services of any nature for any entity which
engages in or conducts any business that competes with, restricts or
interferes with the business of Company.
(b) Injunctive Relief. Without limiting the right of Company or any
of its successors or permitted assigns to pursue all other legal and
equitable rights available to them for violation of the covenants set forth
in subparagraph 7(a) hereof, it is agreed that such other remedies cannot
fully compensate Company and its successors and assigns for such a
violation and that Company and its successors and assigns shall be entitled
to injunctive relief, without the necessity of posting any bond, to prevent
violation or continuing violation hereof. It is the intent and
understanding of each party that if, in any action before any court or
agency legally empowered to enforce this covenant, any term, restriction,
covenant or promise is found to be unreasonable and for that reason
unenforceable, then such term, restriction, covenant or promise shall be
deemed modified to the extent necessary to make it enforceable by such a
court or agency.
8. Confidential Information.
(a) Definitions. "Confidential Information" means information
disclosed by the Company to Employee, or developed or obtained by Employee
during his employment by the Company, either before the date or during the
term of this Agreement, provided that such information is not generally
known in the business and industry in which the Company is or may
subsequently become engaged, relating to or concerning the business,
projects, techniques or methods of the Company, whether relating to food
preparation, marketing, merchandising, selling or otherwise. Without
limitation, Confidential Information shall include all know-how, technical
information, ideas, concepts and processes relating to the business of the
Company, whether now existing or hereafter developed, and all prices,
customer names and customer lists but shall exclude the names of customers
known to Employee prior to the effective date hereof.
(b) Non-Disclosure. Employee agrees that, during the term hereof or
while Employee shall receive compensation hereunder and after termination
of this employment with the Company for so long as the Confidential
Information shall not be generally known or generally disclosed (except by
Employee or by means of wrongful use or disclosure), Employee shall not use
any Confidential Information, except on behalf of the Company during the
term hereof, or disclose any Confidential
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Information to any person, firm, partnership, company, corporation or other
entity, except as authorized by a majority interest of members of the
Company.
9. Specific Enforcement.
Employee is obligated under this Agreement to render service of a special,
unique, unusual, extraordinary and intellectual character, thereby giving this
Agreement peculiar value so that the loss of such service or violation by
Employee of this Agreement could not reasonably or adequately be compensated in
damages in an action at law. Therefore, in addition to other remedies provided
by law, the Company shall have the right during the term or any renewal term of
this Agreement (or thereafter with respect to obligations continuing after the
expiration or termination of this Agreement) to compel specific performance
hereof by Employee or to obtain temporary and permanent injunctive relief,
without any bond, against violations of the non-competition and non-disclosure
provisions recited herein by Employee. The prevailing party will be entitled to
recover all costs and expenses incurred by him or it in connection therewith,
including attorneys' fees.
10. Assignment.
The rights and duties of a party hereunder shall not be assignable by that
party, without the express written consent of the other party.
11. Binding Effect.
This Agreement shall be binding upon the parties hereto and their
respective successors in interest, heirs and personal representatives and, to
the extent permitted herein, their assigns.
12. Severability.
If any provision of this Agreement or any part hereof or application hereof
to any person or circumstance shall be finally determined by a court of
competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Agreement, or the remainder of such provision or the
application of such provision to persons or circumstances other than those as to
which it has been held invalid or unenforceable, shall not be affected thereby
and each provision of this Agreement shall remain in full force and effect to
the fullest extent permitted by law. The parties also agree that, if any portion
of this Agreement, or any part hereof or application hereof, to any person or
circumstance shall be finally determined by a court of competent jurisdiction to
be invalid or unenforceable to any extent, any court may so modify the
objectionable provision so as to make it valid, reasonable and enforceable.
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13. Notices.
All notices, or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered personally or mailed,
certified mail, return receipt requested, postage prepaid, to the parties as
follows:
If to the Company: A One A Produce & Provisions, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, CEO
If to Employee: Xxxxxxx Xxxxx
00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Any notice mailed in accordance with the terms hereof shall be deemed
received on the third day following the date of mailing. Either party may change
the address to which notices to such party may be given hereunder by serving a
proper notice of such change of address to the other party.
14. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior written or
oral negotiations, representations, agreements, commitments, contracts or
understandings with respect thereto and no modification, alteration or amendment
to this Agreement may be made unless the same shall be in writing and signed by
both of the parties hereto.
15. Waivers.
No failure by either party to exercise any of such party's rights hereunder
or to insist upon strict compliance with respect to any obligation hereunder,
and no custom or practice of the parties at variance with the terms hereof,
shall constitute a waiver by either party to demand exact compliance with the
terms hereof. Waiver by either party of any particular default by the other
party shall not affect or impair such party's rights in respect to any
subsequent default of the same or a different nature, nor shall any delay or
omission of either party to exercise any rights arising from any default by the
other party affect or impair such party's rights as to such default or any
subsequent default.
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16. Governing Law; Jurisdiction.
For purposes of construction, interpretation and enforcement, this
Agreement shall be deemed to have been entered into under the laws of the State
of Florida and its validity, effect, performance, interpretation, construction
and enforcement shall be governed by and subject to the laws of the State of
Florida, without regard to conflicts of laws principles thereunder.
17. Jurisdiction and Venue.
Any and all suits for any and every breach of this Agreement may be
instituted and maintained in any court of competent jurisdiction in Broward
County, Florida and the parties hereto consent to the jurisdiction and venue in
such court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
__________________________________
By:_______________________________
Authorized Officer
Attest:
______________________________
Secretary
EMPLOYEE:
__________________________________
Xxxxxxx Xxxxx
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