EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered this 15th day of April, 2002 between (Health, Inc., a Delaware
corporation, whose principal place of business is 0000 X. Xxxxxxx Xxx, Xxxxx X,
Xxxx Xxxxx, Xxxxxxx 00000 (the "Company"} and Xxxxx X. Xxxx, (the "Employee").
RECITALS
WHEREAS, the Company is a development stage company with a long-term goal
to become a leading provider of sun care and other health related products.
(Collectively, the "Business").
WHEREAS, the Company desires to enter into an employment agreement with
the Employee so as to guarantee his continued services to the Company and the
Employee desires to enter into an employment agreement with the Company.
WHEREAS, the Company has established a valuable reputation and goodwill
in its Business, with expertise in all aspects of the Business.
WHEREAS, the Employee will become familiar with and possess the manner,
methods, trade secrets and other confidential information pertaining to the
Company's Business, include the Company's client base.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Employee do hereby agree as follows:
1. Recitals. The above recitals are true, correct, and are herein
incorporated by reference.
2. Employment.
a. The Company hereby employs the Employee, and the Employee hereby
accepts employment, upon the terms and conditions hereinafter set forth.
2. Authority and Power during Employment Period.
a. Duties and Responsibilities. During the term of this Agreement, the
Employee will serve as Chief Executive Officer of the Company with such duties
as may be assigned from time to time by the Company including, but not limited
to, all overall direction of the Company and to oversee all operations of the
Company.
3. Term. The Term of employment hereunder will commence on April 15th,
2002 (the "Effective Date") for a period of five years, unless this Agreement
shall have been terminated pursuant to Section 6 of this Agreement.
5. Compensation and Benefits.
a. Salary. The Employee shall be paid a base salary; payable in
accordance with the Company's policies from time to time for its employees, the
employee shall be paid the sum of $35,000.00 calendar year one, $50,000 calendar
year two, $75,000 calendar year three, $100,000 calendar year four and $150,000
calendar year five.
b. Vacation. During each fiscal year of the Company, the Employee
shall be entitled to such amount of vacation as determined by the Board of
Directors consistent with the Employee's position and length of service to the
Company.
c. Business Expense Reimbursement. During the Term of employment, the
Employee shall be entitled to receive proper reimbursement for all reasonable,
out-of-pocket expenses incurred by the Employee (in accordance with the policies
and procedures established by the Company) in performing services hereunder,
provided the Employee properly accounts therefore.
6. Termination.
a. Death. This Agreement will terminate upon the death of the
Employee.
b. Disability.
(1) The Employee's employment will terminate in the event of
his disability, upon the first day of the month following the determination of
disability as provided below. Following such a termination, the Employee shall
be entitled to compensation in accordance with the Company's disability
compensation practice for employees, including any separate arrangement or
policy covering the Employee, but in all events the Employee shall continue to
receive his Base Salary, at the annual rate in effect immediately prior to the
commencement of disability, for thirty (30) days following the termination. Any
amounts provided for in this Section 6b shall not be offset by other long-term
disability benefits provided to the Employee by the Company or Social Security.
(2) "Disability," for the purposes of this Agreement, shall be
deemed to have occurred if (A) the Employee is unable, by reason of a physical
or mental condition, to perform his duties under this Agreement for an aggregate
of 180 days in any 12-month period, or (B) the Employee has a guardian of the
person or estate appointed by tent jurisdiction.
Anything herein to the contrary notwithstanding, if, following a
termination of to disability, the Employee becomes re-employed, whether as an
Employee or consultant, any compensation, annual incentive payments or other
benefits Employee from such employment shall not be offset against any
compensation continuation due to the Employee hereunder.
c. Termination by the Company for Cause.
(1) Nothing herein shall prevent the Company from terminating
Employee for "Cause," as hereinafter defined. The Employee shall continue to
receive compensation my for the period ending with the date of such termination
as provided in this Section 6c. Any rights and benefits the Employee may have in
respect of any other compensation shall be determined in accordance with the
terms of such other compensation arrangements or such plans or programs;
(2) "Cause" shall mean (A) committing or participating in an
injurious act of fraud, gross neglect, misrepresentation, embezzlement or
dishonesty against the Company; (B) committing or participating in any other
injurious act or omission wantonly, willfully, recklessly or in a manner which
was grossly negligent against the Company; (C) conviction for a felony under the
laws of the United States or any state thereof; or (D) any assignment of this
Agreement in violation of Section 15 of this Agreement;
(3) Notwithstanding anything else contained in this Agreement,
this Agreement will not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Employee a notice of termination
stating that the Employee committed one of the types of conduct set forth in
Section 6c (2) of this Agreement and specifying the particulars thereof and the
Employee shall be given a thirty (30) day period to cure such conduct set forth
in Section 6c (2).
d. Termination by the Company Other than for Cause.
(1) The foregoing notwithstanding, the Company may terminate
the Employee's employment for whatever reason it deems appropriate; provided,
however, that in the event such termination is not based on Cause, as provided
in Section 6c above, the Company may terminate this Agreement upon giving thirty
(30) days' prior written notice. During such thirty (30) day period, the
Employee shall continue to perform the Employee's duties pursuant to this
Agreement. Notwithstanding any such termination, the Company shall continue to,
pay to the Employee the Base Salary during said thirty (30) days.
(2) In the event that the Employee's employment with the
Company pursuant to this Xxxxxxx 0x, Xxxxxxx 0x xx Xxxxxxx 0x, the convent not
to compete as hereinafter set forth in Section 7a of this Agreement shall become
null and void and of no further force or effect.
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e. Voluntary Termination. If the Employee terminates the Employee's
employment on the Employee's own volition prior to the expiration of the Term of
this Agreement, including any renewals thereof, such termination shall
constitute a voluntary termination, anal in such event, the Employee shall be
limited to the same rights and benefits as provided in connection with a
termination for Cause as provided in Section 6c.
7. Covenant Not to Compete and Non-Disclosure of Information.
a. Covenant Not to Compete. Except as set forth in Section 6d(2) of
this Agreement, the Employee acknowledges and recognizes the highly competitive
nature of the Company's Business and the goodwill, continued patronage, and
specifically the names and addresses of the Company's Clients (as hereinafter
defined) constitute a substantial asset of the Company having been acquired
through considerable time, money and effort. Accordingly, in consideration of
the execution of this Agreement, the Employee agrees to the following:
(1) That during the Restricted Period (as hereinafter defined)
and within the Restricted Area (as hereinafter defined), the Employee will not,
individually or in conjunction with others, directly or indirectly, engage in
any Business Activities (as hereinafter defined), whether as an officer,
director, proprietor, employer, partner, independent contractor, investor (other
than as a holder solely as an investment of less than one percent (1%) of the
outstanding capital stock of a publicly traded corporation), consultant,
advisor, agent or otherwise.
(2) That during the Restricted Period and within the
Restricted area, the Employee will not, directly or indirectly, compete with the
Company by soliciting, inducing or influencing any of the Company's clients
which have a business relationship with the Company at the time during the
Restricted Period to discontinue or reduce the extent of such relationship with
the Company.
(3) That during the Restricted Period and within the
Restricted area, the Employee will not (A) directly or indirectly recruit,
solicit or otherwise influence any employee or agent of the Company to
discontinue such employment or agency relationship with the Company, or (B) in
connection with any business which competes directly or indirectly the Business
Activities of the Company (the "Competitive Business"), to employ, or cause or
permit to employ or seek to employ for any Competitive Business any person who
is then (or was at any time within six (6) months prior to the date Employee or
the Competitive Business employs or seeks to employ such person) employed by the
Company.
b. Non-Disclosure of information. The Employee acknowledges that the
Company's trade secrets, source codes, private or secret processes, methods and
ideas, as they exist from time to time, customer lists and information
concerning the Company's products, services, training methods, development,
technical information, marketing activities and procedures, credit and financial
data concerning the Company and/or the Company's Clients, and (the "Proprietary
Information") are valuable, special and unique assets of the Company, access to
and knowledge of which are essential to the performance of the Employee
hereunder. In light of the highly competitive nature of the industry in which
the Company's business is conducted, the Employee agrees that all Proprietary
Information, heretofore or in the future obtained by the Employee as a result of
the Employee's association with the Company shall be considered confidential.
In recognition of this fact, the Employee agrees that the Employee will
not use or disclose any such Proprietary Information for the Employee's own
purposes or for the benefit of any person or other entity or organization
(except the Company) under any circumstances unless such Proprietary Information
has been publicly disclosed generally or, unless upon written advice of legal
counsel reasonably satisfactory to the Company, the Employee is legally required
to disclose such Proprietary Information. Documents (as hereinafter defined)
prepared by the Employee or that come into the Employee's possession during the
Employee's association with the Company are and remain the property of the
Company, and when this Agreement terminates, such Documents shall be returned to
the (Company at the Company's principal place of business, as provided in the
Notice provision (Section 11) of this Agreement.
c. Documents. "Documents" shall mean all original written, recorded,
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or graphic matter whatsoever, and any and all copies thereof, including, but not
limited to: papers; books records; tangible things; correspondence;
communications; telex messages; memoranda; work-papers; reports; affidavits;
statements; summaries; analyses; records and information; agreements; agendas;
advertisements; instructions; charges; manuals; brochures; publications;
directories; industry lists; lists; client lists; statistical records; training
manuals; computer printouts; books of account, records and invoices reflecting
business operations; all things similar to any of the foregoing however
denominated. In all cases where originals are not available, the term
"Documents" shall also mean identical copies of original documents or
non-identical copies thereof.
d. Company's Clients. The "Company's Clients" shall be deemed to be
any persons, partnerships, corporations, professional associations or other
organizations for whom the Company has performed Business Activities.
e. Restrictive Period. The "Restrictive Period" shall be deemed to be
eighteen (18) months following termination of this Agreement, except as set
forth in Section 6g(2) of this Agreement.
f. Restricted Area. The Restricted Area shall be deemed to mean within
Broward County, Dade County, Monroe County and Palm Beach County, Florida and
within of any state in which the Company is providing service at the time of
termination.
g. Business Activities. "Business Activities" shall be deemed to
include the Business, and any additional activities which the Company or any of
its affiliates may engage in during the 12 months prior to the termination of
Employee's employment.
h. Covenants as Essential Elements of this Agreement. It is understood
by and between the parties hereto that the foregoing covenants contained in
Sections 7a and b are essential elements of this Agreement, and that but for the
agreement by the Employee to comply with such covenants, the Company would not
have agreed to enter into this Agreement. Such covenants by the Employee shall
be construed to be agreements independent of any other provisions of this
Agreement. The existence of any other claim or cause of action, whether
predicated on any other provision in this Agreement, or otherwise, as a result
of the relationship between the parties shall not constitute a defense to the
enforcement of such covenants against the Employee.
i. Survival after Termination of Agreement. Notwithstanding anything
to the contrary contained in this Agreement, the covenants in Sections 7a and b
shall survive the termination of this Agreement and the Employee's employment
with the Company.
j. Remedies.
(1) The Employee acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions of
Section 7a or b herein would be (degree) inadequate and the breach shall be per
se deemed as causing irreparable harm to the Company. In recognition of this
fact, in the event of a breach by the Employee of any of the provisions of
Section 7a or b, the Employee agrees that, in addition to any remedy at law
available to the Company including, but not limited to monetary damages, all
rights of the Employee to payment or otherwise under this Agreement and all
amounts then or thereafter due to the Employee from the Company under this
Agreement may be terminated and he Company, without posting any bond, shall be
entitled to obtain, and the Employee agrees not to oppose the Company's request
for equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available to the Company.
(2) The Employee acknowledges that the granting of a temporary
injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Section 7a or b and consequently agrees,
upon proof of any such breach, to the granting of injunctive relief prohibiting
any form of competition with the Company. Nothing herein contained shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for such breach or threatened breach.
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8. Inventions.
a. Disclosure and Ownership of Inventions. Employee acknowledges that
all of the Company's products, all inventions, all special procedures,
processes, products, developments, improvements and modifications related
thereto, are the sole and exclusive property of the Company. Employee agrees
that he will, during the term of his employment, disclose promptly to the
Company in writing any and all developments, special procedures, processes or
products and any improvements in or modifications of existing products, special
procedures, processes, or inventions relating to or connected with the Business
Activities, whether or not patentable, conceived, developed or made by the
Employee either alone or in conjunction with others during the term of his
employment, whether conceited, developed or made upon the Company's premises, or
with the Company=s material or facilities, or otherwise, and all of said
inventions, special procedures, processes, products, improvements and
modifications shall be the sole and exclusive property of the Company.
b. Execution of Documents. At the option and request of the Company,
Employee will promptly execute, acknowledge and deliver during the terns of this
Agreement and at all times thereafter such applications, assignments and other
instruments which the Company shall deem necessary in order to (I) apply for and
obtain letters of patent of the United States and any foreign countries for any
and all of the aforesaid inventions or discoveries described in Section 8(a),
and (ii) assign and convey to the Company this sole and exclusive right, title
and interest therein, and the Employee will assist the Company or its nominee in
every proper way, at the Company=s cost and expense, in accomplishing any and
all of the foregoing.
9. Indemnification. The Employee shall continue to be covered by the
Articles of Incorporation, and/or the Bylaws of the Company with respect to
matters occurring on or prior to the date of termination of the Employee's
employment with the Company, subject to all the provisions of Florida and
Federal law and the Articles of Incorporation and Bylaws of the Company then in
effect. Such reasonable expenses, including attorneys' fees that may be covered
by the Articles of Incorporation and/or Bylaws of the Company shall be paid by
the Company on a current basis in accordance with such provision, the Company's
Articles of Incorporation and Florida law. To the extent that any such payments
by the Company pursuant to the Company's Articles of incorporation and/or Bylaws
may be subject to repayment by the Employee pursuant to the provisions of the
Company's Articles of Incorporation or Bylaws, or pursuant to Florida or Federal
law, such repayment shall be due and payable by the Employee to the Company
within twelve (12) months after the termination of all proceedings, if any,
which relate to such repayment and to the Company's affairs for the period prior
to the date of termination of the Employee's employment with the Company and as
to which Employee has been covered by such applicable provisions.
10. Withholding. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Employee or the Employee's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations
will be satisfied in a manner complying with applicable law or regulation.
11. Notices. Any notice required or permitted to be given under the terms
of this Agreement shall be sufficient if in writing and if sent postage prepaid
by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Employee to
the Employee's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the first paragraph of this Agreement, or at such other place as it may
designate.
12. Waiver. Unless agreed in writing, the failure of either party, at any
time, to require performance by the other of any provisions hereunder shall not
affect its right thereafter to er0orce the same, nor shall a waiver by either
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party of any breach of any provision hereof be taken or held to be a waiver of
any other preceding or succeeding breach of any term or provision of this
Agreement. No extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
13. Completeness and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by the party to be charged.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
15. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Employee but shall be assignable by the
Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
16. Governing Law. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida. Anything in this Agreement to
the contrary notwithstanding, the Employee shall conduct the Employee's business
in a lawful manner and faithfully comply with applicable laws or regulations of
the state, city or other political subdivision in which the Employee is located.
17. Further Assurances. All parties hereto shall execute and deliver such
other instruments and do such other acts as may be necessary to carry out the
intent and purposes of this Agreement.
18. Headings. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
19. Survival. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
20. Severability. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
21. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
22. Venue. Company and Employee acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 15th Judicial Circuit (or its successor) in and for Palm Beach
County, Florida, shall be the venue and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
23. Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
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THE Employee ACKNOWLEDGES THAT THE Employee HAS READ ALL OF THE TERMS OF THIS
AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND
CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date
set forth in the first paragraph of this Agreement.
Witness: THE COMPANY:
IHEALTH, INC.
By: /s/ X X XXXXXX
--------------
Xxxxxxx X. Xxxxxx, Vice President
Witness THE EMPLOYEE
/s/ XXXXX X XXXX
----------------
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SCHEDULE 5(a)
June 11, 2001 - August 11, 2001 $450/week
August 12, 2001 - October 12, 2001 $600/week
October 13, 2001 - December 13, 2001 $800/week
December 14, 2001 - February 14, 2002 $1,000/week
February 15, 2002 - April 15,2002 $1,200/week
April 16, 2002 - June 10, 2002 $1,575/week
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