EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the ____day of September, 2002
between MEGAPRO TOOLS, INC. ("Employer") and XXXXXX XXXXXXXXXX ("Executive").
PRELIMINARY STATEMENT
Employer is a Nevada corporation with its principal place of business
in Boca Raton, Florida. Executive has substantial business experience and
related business skills which can be utilized in Employer's business. Employer
desires to employ Executive upon the terms and conditions hereinafter set forth,
and the Executive desires to accept such employment. Employer and Executive
desire to set forth in writing the terms and conditions of their agreements and
understandings.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
I. DEFINITIONS
A. Executive. The term "Executive" as used herein shall mean XXXXXX XXXXXXXXXX.
B. Annual Salary. For purposes of this Agreement, the term "Annual Salary" shall
mean the compensation payable to Executive as provided for in Section VI(A)
hereof.
C. Cause. For purposes of this Agreement, the term "cause" is defined to include
the conviction by a court of law for acts of serious moral turpitude of
Executive; gross negligence of Executive in connection with the performance of
his duties as provided for in this Agreement, which gross negligence causes or
potentially could cause substantial material harm to the Employer; fraud by
Executive; and continuous material breach by Executive of any of the material
terms and conditions of the Employment Agreement.
II. EMPLOYMENT
Employer hereby employs Executive, and Executive hereby accepts
employment by the Employer upon all the terms and conditions as are hereinafter
set forth.
III. TERM
Subject to the provisions for termination, the term of this Employment
Agreement shall commence as of September ___, 2002 and shall terminate on March
___, 2003 (the "Employment Term"). Prior to the termination of the term hereof,
the parties will in good faith evaluate an extension of the term or completion
of a new employment agreement.
IV. EXECUTIVE'S REPRESENTATION AND WARRANTIES
Executive represents and warrants to Employer that he is free to accept
employment with Employer as contemplated herein, and he has no other prior
obligations or commitments of any kind to anyone which would in any way
interfere with his acceptance, or the full performance of his obligations, under
this Agreement, or the exercise of his best efforts to his employment hereunder.
V. DUTIES AND EXTENT OF SERVICES
A. Efforts. Executive agrees to devote such working time, energy,
knowledge, and efforts as shall be necessary or appropriate to the performance
and discharge of Executive's duties and responsibilities hereunder and such
other reasonable duties and responsibilities as are assigned to him from time to
time by the Board of Directors of Employer and consistent with his capacity as
described in subsection V.B. below. Executive's duties hereunder shall be
performed at the business offices of Employer in Boca Raton, Florida, but may
also be performed at such other places as may be designated by Employer.
B. Position and Responsibilities. The Executive shall serve as Chief
Operating Officer for Employer, with such duties as are assigned to him by the
Chief Executive Officer of Employer consistent with his status and capacity as
such an executive of Employer. If requested, Executive will stand for election
and serve as a director of Employer.
C. Fees and Remuneration. Executive hereby agrees that all fees or
other remuneration received or collected as a result of services rendered by him
to Employer or otherwise relating in any manner to Employer's business shall be
the property of Employer. Executive acknowledges that his employment does not
confer upon him any ownership interest in or claim upon any fees earned by
Employer for his services, whether said fees are collected during his employment
or after the termination thereof. Executive expressly agrees that the
compensation and benefits received by him or payable to him under this Agreement
shall satisfy and discharge in full all his claims upon Employer for
compensation in respect of his services.
VI. COMPENSATION
As his compensation for services rendered to the Employer during the
Employment Term, in whatever capacity rendered, the Executive shall receive a
salary at a monthly rate of $10,000 payable semi-monthly, or on such basis as
Employer shall pay other executives of the Company.
VII. DEDUCTIONS
Deductions shall be made from Executive's total annual compensation and
any bonuses for withholding tax and other such taxes as may from time to time be
required by governmental authority.
VIII. EXPENSES
Executive is expected, from time to time, to incur reasonable
entertainment, travel and other expenses for promoting the business of Employer
which will be reimbursed by Employer. Reimbursement for such expenses however
shall be subject to such regulations and procedures as the Employer may from
time to time establish.
IX. FACILITIES
Employer shall provide and maintain such facilities, equipment and
supplies as it deems necessary for the Executive's performance of his duties
under this Employment Agreement.
X. EMPLOYER RECORDS
All books, records and documents relating to Employer's business shall
be the sole and permanent property of the Employer. The Executive shall not be
entitled to retain any copies thereof notwithstanding his participation therein.
Unless required by service of legal process, no other Employer records
shall be displaced or delivered to, or any information therefrom disclosed, to
any person not connected with the Employer except in strict accordance with the
rules of the Employer from time to time established. Employer shall provide
Executive reasonable access to all personnel records relating to Executive's
employment hereunder.
XI. STANDARDS
The Executive shall perform his duties under this Agreement in
accordance with the highest standards of professional ethics and practices as
may from time to time be applicable during the Employment Term.
XII. TERMINATION OF EMPLOYMENT
A. Events of Termination. The Employment Term may, at the option of the
Employer, be terminated upon the happening of any of the following events:
(1) Whenever the Executive accepts (without having obtained the prior
written consent of Employer) employment with any other company.
(2) Whenever the Executive and the Employer shall mutually agree in
writing to terminate this Agreement.
(3) At Employer's option at any time for cause, as that term is
defined in Section I.D. hereof.
B. Amounts Due Executive/Employer. Within thirty (30) days of termination
of this Agreement for whatever reason, any amounts payable or to be payable to
either party at that time shall be due and payable in full.
XIII. DISCLOSURE OF INFORMATION
Executive acknowledges that, in and as a result of his employment
hereunder, he will be making use of, acquiring and/or adding to confidential or
proprietary information developed by Employer and of a special and unique nature
and value to Employer, including, but not limited to, the nature and material
terms of business opportunities and proposals available to Employer, Employer's
products, methods, systems and research, the names and addresses of its
customers, investors and suppliers, prices charged and paid by Employer or its
customers, designs and specifications, record cards, customers' and suppliers'
records, customer files, investor files, services, operating procedures, methods
and systems, financial records of the Employer and of customers, and other
information, data, and documents now existing or later acquired by Executive or
Employer, regardless of whether any such information, data, or documents,
qualify as a "trade secret" under applicable Federal or State law (collectively,
the "Confidential Information"). As a material inducement to Employer to enter
into this Agreement, and to pay to Executive the compensation referred to in
Section VI hereof, along with other considerations provided herein, Executive
covenants and agrees that he shall not at any time during the Employment Term or
following any termination thereof, directly or indirectly, divulge or disclose
or use for any purpose whatsoever (except for the sole and exclusive benefit of
Employer, as reasonably required in connection with his duties to or as
otherwise required by law), any Confidential Information which has been obtained
by or disclosed to him as a result of his employment with Employer. In
accordance with the foregoing, the Executive further agrees that he will at no
time retain or remove from the premises of the Employer records of any kind or
description whatsoever for any purpose whatsoever unless authorized by Employer,
and will return all of the foregoing to Employer upon Employer's request or any
termination of his employment. In the event of a breach or threatened breach by
the Executive of any of the provisions of this Section XIV, Employer, in
addition to and not in limitation of any other rights, remedies, or damages
available to Employer at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by Executive, or
by Executive's partners, agents, representatives, servants, employers, employees
and/or any and all persons directly or indirectly acting for or with him.
XIV. COVENANT AGAINST COMPETITION
A. Executive acknowledges that his services to be rendered hereunder
are of a special and unusual character which have a unique value to Employer,
the loss of which cannot adequately be compensated by damages in an action at
law. In view of the unique value to Employer of the services of Executive for
which Employer has contracted hereunder, the senior executive capacity in which
Executive serves, the access to information and details which Executive has by
virtue of such senior executive status and because of the Confidential
Information to be obtained by or disclosed to Executive as hereinabove set
forth, and as a material inducement to Employer to enter into this Employment
Agreement and to pay to Executive the compensation referred to in Section VI
hereof and other consideration provided herein, Executive covenants and agrees
that he will not during the term hereof and for a period of six (6) months from
the date of termination of this Agreement for any reason (i) engage, directly or
indirectly, in any business directly competitive with the business of the
Company (which is comprised of the investment in, management of nail salons (the
"Activities") in the State of Florida that the Company presently is conducting
or soliciting business or subsequently is conducting or soliciting business at
the time of the termination of this Agreement; (ii) call upon any customer or
customers, client or clients of the Employer for the purposes of engaging in any
activities for any person, corporation, or entity other than Employer
competitive with the Activities of the Employer; or (iii) divert, solicit or
take away any customer or customers, client or clients or employee or employees
of the Employer for the purpose of engaging in any activities competitive with
the Activities of the Employer.
B. Executive covenants and agrees that if he shall violate any of his
covenants or agreements provided for pursuant to this Section, Employer shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration, or benefits which Executive, directly or indirectly,
has realized and/or may realize as a result of, growing out of, or in connection
with any such violation; such remedy shall be in addition to and not in
limitation of any injunctive relief or other rights or remedies to which
Employer may be entitled to at law or in equity or under this Employment
Agreement.
XV. REASONABLENESS OF RESTRICTIONS
A. Executive has carefully read and considered the provisions of
Section XIII and XIV hereof, and having done so, agrees that the restrictions
set forth in such Sections (including, but not limited to, the time period of
restriction and the geographical areas of restriction set forth in Section XIV
hereof) are fair and reasonable and are reasonably required for the protection
of the interests of the Employer, its officers, directors, and other employees.
B. In the event that, notwithstanding the foregoing, any of the
provisions of Sections XIII and XIV shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though invalid or unenforceable parts had not been
included therein. In the event that any provision of Section XIV hereof relating
to time period and/or areas of restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, said time period and/or areas of restriction
shall be deemed to become, and thereafter be, the maximum time period and/or
area which such court deems reasonable and enforceable.
XVI. TRANSFER OF INTEREST AND DUTIES
The parties hereto agree that in the event Employer is sold or merged
with another corporation, and Employer is not the surviving entity, the
restrictions contained in Section XIV hereof shall lapse.
XVII. APPLICABLE LAW; SEVERABILITY
This Agreement shall be governed by and construed pursuant to the laws
of the State of Florida, where it is made and executed. If any terms or part of
this Agreement shall be determined to be invalid, illegal, or unenforceable in
whole or in part, the validity of the remaining part of such term or the
validity of any other term of this Agreement shall not in any way be affected.
All provisions of this Agreement shall be construed to be valid and enforceable
to the full extent permitted by law.
XVIII. HEADINGS
The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
XIX. COUNTERPARTS
This Employment Agreement may be executed in multiple counterparts,
each of which shall be an original, but all of which shall be deemed to
constitute one instrument.
XX. BINDING PROVISIONS AND PERFORMANCE
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors in interest of any kind whatsoever, and all
such parties agree to be bound by the provisions contained herein.
XXI. AMENDMENT
No amendment or variation of the terms of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
XXII. ENTIRE EMPLOYMENT AGREEMENT
This Agreement represents the entire agreement between the parties
hereto with respect to the subject matter hereof.
XXIII. WAIVER OF VIOLATION NOT CONTINUING
The waiver by either party of a breach or violation of any provision of
this Agreement shall not operate as or be construed to be a waiver of any
subsequent breach.
XXIV. ASSIGNMENT
This Agreement is personal to each of the parties hereto, and neither
party may assign nor delegate any of his or its rights or obligations hereunder
without first obtaining the written consent of the party.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals on the day and year first above written.
MEGAPRO TOOLS, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Authorized Officer
/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX
