EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the " Agreement") is made and entered into on
April 5, 2002, by and between VITALLABS, a Nevada corporation, located at
0000 X. Xx. Xxxxxxxx Xxx., Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called
"VIT"), and Xxxxxxxx X. Xxxxx located at ____________________
WHEREAS, VIT desires to retain Xxxxxxxx X. Xxxxx in the Executive Vice
President for VIT.
WHEREAS, VIT, and Xxxxxxxx X. Xxxxx desire to enter into this Agreement to
Assure VIT of the services of Xxxxxxxx X. Xxxxx for the benefit of VIT and to
set forth the respective rights and duties or the parties hereto;
WHEREAS, VIT is in the business of building a Healthcare Services company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions set forth herein, VIT and Xxxxxxxx X. Xxxxx agree as
follows:
ARTICLE 1
Employment
1.1 Employment and Title. VIT or its assigns hereby employs Xxxxxxxx X. Xxxxx
and hereby accepts such employment as the EXE. V.P. for VIT all upon the
terms and conditions set forth herein.
Description of Services to be Performed.
a) Xxxxxxxx X. Xxxxx as Executive Vice President is responsible for the
business development of any assignment directed by the board of
directors current function to develop the Veterinarian Business.
b) During the terms (as hereinafter defined) hereof, Xxxxxxxx X. Xxxxx
agrees to perform diligently and in good faith such duties and services
for VIT as are consistent with the position held by Xxxxxxxx X. Xxxxx
under the direction of the Board of Directors of VIT. Xxxxxxxx X.
Xxxxx agrees to devote his full time and best efforts and the required
time, energies and abilities to the services to be performed hereunder
and for the benefit of VIT. Xxxxxxxx X. Xxxxx shall be vested with such
authority as is generally concomitant with the position to which he is
appointed for day-to-day operations.
c) Xxxxxxxx X. Xxxxx shall communicate and report to the CEO and Board
of Directors of VIT, on a periodic (as required) basis as to the State
of the business and prospects for the business future growth.
1.2 Location. The principal place of employment and the location of VIT's
principal office and ordinary place of work shall be in 0000 Xx. Xxxxxxxx
Xxx. Xxxxxxxxxx, Xx. 00000, provided, however, Xxxxxxxx X. Xxxxx shall, when
requested by the VIT or the Board of Directors, or may, if he determines it
to be reasonably necessary, temporarily perform services outside said area as
are reasonably required for the proper performance of his duties under this
Agreement.
1.3 Representations. Each party represents and warrants to the other that
he/she has full power and authority to enter into and perform this Agreement
and this his execution and performance of his Agreement shall not constitute
a default under or breach of any of the terms of any agreement to which
he/she is a party or under which he/she is bound. Each party represents that
no consent or approval of any third party is required for his execution,
delivery and performance of this Agreement or that all consents or approvals
of any third party required for his or its execution, delivery and
performance of this Agreement have been obtained.
ARTICLE II
Term
2.1 Term. The term of Xxxxxxxx X. Xxxxx'x employment hereunder (the "Term ")
shall commence as of the date hereof (the "Commencement Date") and shall
continue from the date hereof for a period of five (5) years with automatic
5-year extensions unless earlier terminated by Xxxxxxxx X. Xxxxx or VIT's
Board of Directors pursuant to the provisions of this Agreement.
ARTICLE III
Compensation
3.1 Base Salary. As compensation for the services to be rendered by Xxxxxxxx
X. Xxxxx, VIT shall pay Xxxxxxxx X. Xxxxx, during the term of this Agreement,
an annual base salary of $150,000.00 which base salary shall (prorated for
periods less than a month) be paid in 26 equal installments payable bi-
weekly in the normal pay cycle of VIT. If Xxxxxxxx X. Xxxxx is successful in
increasing the total revenue of VIT as outlined in Exhibit A-l he will earn
bonuses as outlined therein on an annually basis as outlined in A-l.
3.2 Benefits. Xxxxxxxx X. Xxxxx shall be entitled, during the Terms hereof,
to the same medical, hospital, dental and life insurance coverage as are
available to VIT's employees on the Commencement Date and shall receive
additional benefits (now being developed) as shall be made available to
members of the Executive staff.
Xxxxxxxx X. Xxxxx shall be entitled to Four (4) weeks of fully paid vacation
per year during the term of this Agreement. Xxxxxxxx X. Xxxxx shall not be
entitled to receive monetary or other valuable consideration for vacation
time to which he/she is entitled but does not take. The timing of vacation
periods shall be within the discretion of Xxxxxxxx X. Xxxxx, reasonably
exercised so as not to unnecessarily inconvenience VIT. Holidays will be paid
as defined in the company's policy and procedures manual.
3.3 Withholding. Any and an amounts payable under this Agreement, including,
without limitation, amounts payable in the event of the termination hereof
under Article V his hereof, are subject to withholding for such federal,
state and local taxes as VIT in its reasonable judgment determines to be
required to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities and Expenses. Xxxxxxxx X. Xxxxx shall be furnished
with an office at the principal office of VIT, or at such other working
facilities and secretarial and other assistance suitable to his position and
adequate for the performance of his duties hereunder. VIT shall reimburse
Xxxxxxxx X. Xxxxx for all of Xxxxxxxx X. Xxxxx'x reasonable expenses incurred
while employed and performing his duties under and in accordance with the
terms and conditions of the Agreement, subject to Xxxxxxxx X. Xxxxx'x full
and appropriate documentation, including, without limitation, receipts for an
such expenses in the manner required pursuant to VIT's policies and
procedures and the Internal Revenue Code as in effect from time to time.
ARTICLE IV
Termination
5.1 Termination for Cause. Notwithstanding any other provision in this
agreement to the contrary, in the event Xxxxxxxx X. Xxxxx'x employment is
terminated for cause, no benefits, whatsoever, shall be payable except for
accrued salaries and expense reimbursement. Xxxxxxxx X. Xxxxx may be
terminated for cause upon the commission of any illegal or dishonest acts
which might materially and adversely reflect upon the reputation of VIT or
prove injurious to VIT' s operations. Xxxxxxxx X. Xxxxx may be terminated for
cause in the event he violates the Restrictive Covenants contained in this
agreement or if he willingly and materially fails or refuses to perform his
duties and responsibilities as required by this Agreement.
5.2 Termination without Cause. This Agreement may not be terminated by VIT
without case during the initial five (5) year Term of employment. At any
time after the expiration of the initial five (5) year Term of employment,
VIT may by written notice terminate Xxxxxxxx X. Xxxxx'x employment hereunder
without cause provided that it delivers to Xxxxxxxx X. Xxxxx the payments and
benefits required as follows. Xxxxxxxx X. Xxxxx shall be entitled to continue
to receive all incentives earned from this agreement in effect at the time of
notice to terminate without cause. Xxxxxxxx X. Xxxxx shall receive his total
compensation per this Agreement for a period of one year. The company shall
further by full satisfaction release Xxxxxxxx X. Xxxxx for all debts,
promissory notes, leases and other documents that Xxxxxxxx X. Xxxxx may have
guaranteed on behalf of the company. Xxxxxxxx X. Xxxxx shall accept such
payments and benefits in full discharge and release of VIT of and from any
further obligations under this agreement. Such discharge and release shall
not affect any rights and remedies which may be available to Xxxxxxxx X.
Xxxxx otherwise than under this Agreement.
a) Should Xxxxxxxx X. Xxxxx choose to terminate employment without cause he
will only be entitled to the same compensation as for cause.
ARTICLE VI
Covenant Not to Compete
6.1 Covenant Not to Compete. Upon termination of this Agreement by either the
voluntary resignation of Xxxxxxxx X. Xxxxx without good cause or the
termination of Xxxxxxxx X. Xxxxx for cause by VIT, Xxxxxxxx X. Xxxxx shall
not directly or indirectly, within the State of Florida, enter into or engage
in any business in competition with the Business of VIT, as it now exists or
may exist at the time of termination of employment under this Agreement,
either as an individual on his own account, or as a partner, joint venture,
agent, or salesperson for any corporation, for a period of one (1) year after
the date of termination of employment hereunder. It is agreed by the parties
that this covenant on the part of VIT may be enforced against Xxxxxxxx X.
Xxxxx by injunction, as well as by all other legal remedies available to VIT.
It is agreed by the parties hereto that if any portion of this covenant not
to compete is held to be unreasonable, arbitrary or against public policy,
the covenant herein shall be considered divisible both as to time and
geographic area so that a 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
determines the specified time period or the specified geographical area to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area which is determined by the courts to be reasonable, non-
arbitrary and not against public policy may be enforced against Xxxxxxxx X.
Xxxxx by injunction, as well as by all other legal remedies available to VIT.
6.2 Solicitation of Employees. For a period of one year after Xxxxxxxx X.
Xxxxx is no longer employed by VIT, Xxxxxxxx X. Xxxxx will not, directly,
either as an individual, proprietor, stockholder, partner, officer, director,
Employee or otherwise, solicit any officer, director, Employee or other
individual:
a) To leave his or his employment or position with VIT;
b) To compete with the Business of VIT; or
c) To violate the terms of any employment; non-competition or similar
agreement with VIT.
For purposes of this paragraph, references to the Business of VIT shall
include the business of any subsidiary or affiliate of VIT.
6.3 a) Xxxxxxxx X. Xxxxx agrees that in the event of a breach of any term
of this Agreement, and more particularly, in the event of the breach of any
of the terms and provisions of this Article VI, VIT shall be entitled to
secure an order in any suit brought for that purpose to enjoin Xxxxxxxx X.
Xxxxx from violating any of the provisions of this Agreement and that,
pending the hearing and the decision on the application for such order, VIT
shall be entitled to a temporary restraining order without prejudice to any
other remedy available to VIT. XXXXXXXX X. XXXXX UNDERSTANDS THAT THE
COVENANTS OF THIS PARAGRAPH ARE THE ESSENCE OF THIS EMPLOYMENT AGREEMENT,
WITHOUT WHICH NO EMPLOYMENT AGREEMENT WOULD BE ENTERED INTO BY VIT.
b) The provisions of Article VI shall in no event be construed to be an
exclusive remedy, and such remedy shall be held and construed to be
cumulative and not exclusive of any rights or remedies, whether in law or
equity, otherwise available under the terms of this Agreement or under the
laws of the United States or any state.
ARTICLE VII
Confidentiality and Intellectual Property Rights
7 .1 Confidentiality. That Xxxxxxxx X. Xxxxx will not at any time during or
after his employment by VIT, directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation in any manner whatsoever,
other than in the normal course of performing his duties for VIT, any
information concerning any matter affecting or relating to the Business of
VIT. While engaged as an employee of VIT, the Employee may only use
information concerning any matters affecting or relating to VIT or the
Business of VIT for a purpose which is necessary to the carrying out of the
duties as an employee of VIT, and Xxxxxxxx X. Xxxxx may not make use of any
information of VIT after he/she is no longer an employee of VIT. That
Xxxxxxxx X. Xxxxx agrees to the above without regard to whether all of the
above matters will be deemed confidential, material or important, it being
stipulated by the parties that all information, whether written or otherwise,
regarding VIT's Business, including but not limited to, information regarding
customers, customer lists, VIT's salaries, costs, prices, earnings, and any
financial or cost accounting reports, products, services, formulae,
compositions, machines, equipment, apparatus, systems, manufacturing
procedures, operations, potential acquisitions, new location plans,
prospective and executed contracts and other business arrangements, and
sources of supply, is presumed to be important, material and confidential
information of VIT for purposes of this Agreement, except to the extent that
such information may be otherwise lawfully and readily available to the
general public. Xxxxxxxx X. Xxxxx agrees that all of this information is a
trade secret owned exclusively by VIT that shall at all times be kept
confidential. That Xxxxxxxx X. Xxxxx further agrees that he/she will, upon
termination of his employment with VIT, return to VIT all books, records,
lists and other written, typed or printed materials, whether furnished by VIT
or prepared by VIT, which contain any information relating to VIT's Business,
and that Xxxxxxxx X. Xxxxx agrees that he/she will neither make nor retain
any copies of such materials after termination of employment. For purposes of
this Article Vll, references to the Business or information of or relating to
VIT shall include the information or business of VIT, and any subsidiary or
affiliate of VIT, with the exception of that information known to employee
prior to his employment by VIT and brought to VIT by Xxxxxxxx X. Xxxxx.
7.2 Business Opportunities and Patentable Devices. Xxxxxxxx X. Xxxxx will
make full and prompt written disclosure to VIT, or their nominee of:
a) Any business opportunity of which he/she becomes aware and which relates
to the Business of VIT, or any of its subsidiaries or affiliates; and
7.3 Assignment of Intellectual Property Rights. That Xxxxxxxx X. Xxxxx
assigns to VIT and/or VIT the entire right, title and interest for the entire
world in and to all work performed, writing(s), formula(s), design(s),
model(s), drawing(s), software, photograph(s), design invention(s) and other
invention(s) made, conceived or reduced to practice or authored by VIT,
either solely or jointly with others, during the performance on this
Agreement or with the use of information, materials or facilities of VIT
received or used by VIT during the period Xxxxxxxx X. Xxxxx is retained by
VIT under this Agreement or any extensions or renewals thereof, with the
exception of that information known to employee prior to his employment by
VIT, or to information and inventions made, conceived or reduced to practice
solely by Xxxxxxxx X. Xxxxx on his own personal time and unrelated to the
business of VIT or it's affiliates.
That Xxxxxxxx X. Xxxxx shall sign, execute and acknowledge or cause to be
signed, executed and acknowledged without cost, but at the expense of VIT,
any and all documents and to perform the acts as may be necessary, useful or
convenient for the purpose of securing to VIT or its nominees trade secret,
patent, trademark, or copyright protection throughout the world upon all such
work(s), writing(s), photograph(s), software, design invention(s), other
invention(s) and processes, title to which VIT may acquire in accordance with
the provisions of this clause.
ARTICLE VIII
Miscellaneous
8.1 No Waivers. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
8.2 Notices. Any notice to be given to VIT, and Xxxxxxxx X. Xxxxx under the
terms of this Agreement may be delivered personally, by telecopy, telex or
other form of written electronic transmission, or by registered or certified
mail, postage prepaid, and shall be addressed as follows:
If to VIT: VIT
1375 So. Ft. Xxxxxxxx Ave.
Clearwater, F133756
If to Xxxxxxxx X. Xxxxx: Xxxxxxxx X. Xxxxx
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Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written
electronic transmission, or (iii) on the day after it is mail by registered
mail or certified mail, postage prepaid, as provided herein.
8.3 Severability. The provisions of this Agreement are severable and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provision, or
enforceable parts thereof, shall not be affected thereby.
8.4 Successors and Assigns. The rights and obligations of VIT under this
agreement shall inure to the benefit of and be binding upon the successors
and assigns of VIT, including the survivor upon any merger, consolidation or
combination of VlT with any other entity. Xxxxxxxx X. Xxxxx shall not have
the right to assign, delegate or otherwise transfer any duty or obligation to
be performed by him/her hereunder to any person or entity.
8.5 Entire Agreement. This Agreement supersedes all prior agreements and
understandings between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination, or attempted
waiver shall be valid unless in writing, signed by the party against whom
such modification, termination or waiver is sought to be enforced. This
Agreement was the subject of negotiation by the parties hereto and their
counsel. The parties agree that no prior drafts of this Agreement shall be
admissible as evidence in any proceeding that involves the interpretation of
any provision accordance with the internal laws of the State of Florida
without reference to the conflict of law thereof
8.7 Section Headlines. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said sections.
8.8 Further Assurances. Each party hereto shall cooperate and shall take such
further action and shall execute and deliver such further documents as may be
reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement.
8.9 Gender. Whenever the pronouns "his" are used they shall also be deemed to
mean "he/she" or "it" or "its" whenever applicable. Words in the singular
shall be read and construed as though in the plural and words in the plural
shall be read and construed as though in the singular in all cases where they
would apply.
8.10 Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
8.11 Attorney's Fees. In the event that either party is required to engage
the services of legal counsel to enforce the terms and conditions of this
Agreement against the other party, regardless of whether such action results
in litigation, the prevailing party shall be entitled to reasonable
attorneys' fees, costs of legal assistants, and other costs from the other
party, which shall include any fees or costs incurred at trial or any
appellate proceeding, and expenses and other cost, including any accounting
expenses incurred.
8.12 Indemnification VIT agrees to indemnify and hold harmless Xxxxxxxx X.
Xxxxx from and against any and all liability, claims, losses, demands,
injuries, expenses and causes of action (including reasonable costs and
attorney's and paralegal fees) arising from or incident to the negligent or
willful act or omission of VIT's agents, affiliates, or contractors in the
performance of its obligations including but not limited to all claims which
may be made or asserted by any individual, agency or entity engaged by VIT or
a regulatory, licensing agency, a competitor of VIT or a recipient of the
duties or services provided by VIT but is not a party to this agreement.
IN WITNESS HEREOF, the parties hereto have executed this Employment Agreement
as of the date first above written.
Attest: Vitallabs, Inc. ("VIT")
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Its Chairman of the Board
Attest By: /s/ Xxxxx X. Xxxxxx, Xx.
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Its Secretary
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
EXHIBIT A
The Company may declare a bonus for Xxxxxxxx X. Xxxxx at the first Board
Meeting of each calendar year. The bonus will be based on the overall
performance against goals set by the board for the previous year. The bonus
however may not exceed more than (1%) one percent of the earnings before
income tax, depreciation and amortization. At each Annual board meeting the
bonus program may be reviewed and changed
