EMPLOYMENT AGREEMENT
Exhibit
10.3
This
sets forth the Employment Agreement ("Agreement") made effective as of January
1, 2007 between SUNCOAST NUTRICEUTICALS, INC., a Delaware corporation with an
address for purposes hereof at 00000 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (the
"Employer" or “Company”) and XXXXX XxXXXXXXX ("Employee”).
IN CONSIDERATION of the mutual
agreements and covenants contained herein, and other good and valuable
consideration, the parties agree as follows:
1. Employment. Employer
hereby employs Employee, and Employee hereby agrees to serve, as an Executive of
the Employer, for an "Initial Term" of five years, commencing effective January
1, 2007 and ending on December 31, 2012. Unless sooner terminated,
this Agreement shall then automatically renew for successive terms of one year
(each one year term being a "Renewal Term") until either party notifies the
other of its intention not to renew this Agreement by giving the other party
notice in writing at least ninety (90) days prior to the end of the applicable
term. The Initial Term and any Renewal Terms, collectively are the
“Employment Period.”
2. Duties. Employee
shall have primary responsibility, subject to the control of Employer's Board of
Directors, for the business operations of the Company and shall have the title
of President and Chief Executive Officer. The Employee
shall be authorized to do all such acts and things as may be necessary or
desirable, for or in connection with the performance of his duties, and shall
perform such other mutually agreeable duties consistent with those for an
executive as are delegated to him by the Board of Directors and shall
provide such time and effort as shall required for the performance of such
duties. The Executive acknowledges that his services and
responsibilities are of particular significance to the Company and that his
position with the Company does and will continue to give him an intimate
knowledge of the current and future business plans, confidential corporate
strategies, and access to the customer base of the
Company. Accordingly, Executive agrees that he will not, at any time
during the term of this Agreement or any extension thereof, or within three
years of the expiration or termination thereof, directly or indirectly engage
in, be associated with or be employed by any business operation in competition,
direct or indirect, with the business operations of the Company unless
authorized in writing by the Company.
3. Base
Salary. During the Employment Period of this Agreement,
Employer shall pay the Employee a base salary at an annual rate of $24,000
("Base Salary"), payable bi-weekly and in accordance with Employer's regular
payroll practices for its executive employees.
Bonuses . During
the Employment Period, Employer shall pay an annual bonus to Employee as shall
be fixed by the Board of Directors.
4. Fringe
Benefits.
(a) Benefit
Plans. The Employee shall be eligible to participate in any
employee pension benefit plans, group life insurance plans, medical plans,
dental plans, long-term disability plans, stock option plans, incentive
compensation plans, insurance programs and other fringe benefit programs as may
be maintained by Employer for the benefit of its executive
employees. Participation in any of Employer's benefit plans and
programs shall be subject to satisfaction of the eligibility requirements and
other conditions of such plans and programs. If employee does not
enroll in an Employer paid medical plan, Employee shall receive a stipend equal
to the average cost of a family medical plan.
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(b) Other
Benefits. The Employee shall be entitled to six weeks paid
vacation during each calendar year, and shall receive paid time off for all
State and all Federal holidays, as well as sick leave and bereavement time off
consistent with the paid leave as provided to its executive employees of
Employer in accordance with Employer’s policies applicable to its executive
employees. Employee’s unused vacation time in any calendar year shall
be carried over to the following calendar year.
(c) Expenses. Upon
submission to Employer of vouchers, expense reports, receipts and any other
required documentation for authorized travel, Employee shall be reimbursed his
actual out-of-pocket travel and other expenses reasonably incurred and paid by
the Employee in connection with Employee’s performance of duties hereunder and
in accordance with Employer policies applicable to its executive
employees
Stock
Compensation . As additional consideration, the Employer
will issue the Employee 100,000 shares of Common Stock of the
Company. If the Employer terminates this Agreement for cause,
or the Employee terminates it without cause or voluntarily resigns, the Employee
shall not be entitled to any Shares or Warrants which would have been issuable
on the anniversary dates after the termination or
resignation. Employee shall be entitled to sell any Shares after
issuance in accordance with the provisions of Rule 144 promulgated under the
Securities Act of 1933 as amended. If the Employer terminates this
Agreement without cause or if the Employee terminates this Agreement with cause,
the Employee shall immediately receive all shares and warrants as set forth in
this Section 5.
5. Withholding. Employer
shall deduct and withhold from compensation and benefits provided under this
Agreement, all necessary income and employment taxes and any other similar sums
required by law to be withheld.
6. Termination. This
Agreement, the Employment Period, and the Employee’s employment by Employer,
shall be subject to termination as follows:
(a) Expiration of
Term. This Agreement shall terminate automatically at the end
of the Initial Term or any Renewal Term if written notice of an election not to
renew is given in accordance with Section 1 of this Agreement. The
Employee’s Base Salary and any applicable bonuses shall continue to be paid
until the expiration of the then current term.
(b) Termination Upon
Death. This Agreement shall terminate automatically upon the
Employee’s death. Base Salary and any bonuses that are accrued but
unpaid as of the date of death shall be paid to the Employee’s
estate.
(c) Termination Upon
Disability. Employer may terminate this Agreement upon the
Employee’s permanent disability which causes the Employee’s inability to perform
his duties hereunder by reason of physical or mental illness or
injury. The determination of permanent disability
shall be made by a physician selected by Employee which must be mutually agreed
upon by Employer.
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(d) Early Termination By
Employer. Employer may terminate this Agreement and the
Employee’s employment hereunder for "cause" by written notice to the Employee in
the manner provided in Section 12(e). For purposes of this Agreement,
"cause" shall mean either: (1) Employees willful failure to perform duties
required hereunder after written notice in a manner provided under Section 12(e)
specifying the particulars of the alleged willful failure has been provided to
the Employee and the Employee has been given a 30 day period to cure any such
willful failure to perform his duties or (2) Employee’s conviction of a felony
involving theft, dishonesty or fraud detrimental to Employer; or if the Employer
terminates this Agreement without cause, Employer shall pay Employee
a severance payment equal to the total of his then current Base Salary for the
remainder of the Employment Period, plus any bonuses that would have been
payable during the remainder of the Employment Period, and any non-compete
and/or non-solicitation clauses shall no longer apply to
Employee. This severance payment shall be paid within thirty (30)
days from the date of Employer's notice of termination with any future bonus
payments payable to Employee within thirty (30) days after being identified.
Further, Employee shall immediately receive all shares and warrants as specified
in Section 6 if Employer terminates this Agreement without
cause.
(e) Early Termination By
Employee. Employee may terminate this Agreement and his
employment hereunder by written notice to Employer in the manner provided in
Section 12(e) if: Employer substantially changes the nature of the Employee’s
duties, work location or other material terms and conditions of the Employee’s
performance of services, Employer files Bankruptcy, or Employer fails to pay any
amounts due or provide any benefits required under this Agreement or otherwise
breaches this Agreement and fails to cure such default or violation within
fifteen (15) days following written notice to Employer. If the
Employee terminates this Agreement for any of the above reasons, then the
Employer shall, within thirty (30) days of termination, pay Employee a payment
equal to a total of his then current Base Salary for the remainder of the
Employment Period, plus any bonuses that would have been payable during the
remainder of the Employment Period, and any non-compete and/or non-solicitation
clauses shall no longer apply to Employee. Further, Employee shall
immediately receive all shares and warrants as specified in Section
6. If the Employee resigns or terminates this Agreement without
cause, the Employee will forfeit any outstanding options that were not vested at
the time, as well as the right to any salary, severance and/or bonuses and shall
only receive his Base Salary and any bonuses due prior to the date of such
resignation or termination.
7. No Prior
Restrictions. The Employee affirms and represents that he is
under no obligations to any present or former employer or other third party,
including but not limited to TB&A, which is in any way inconsistent with, or
which imposes any restriction upon the employment of the Employee by
Employer.
8. Confidentiality. During
the Employment Period, and for a period of three (3) years thereafter, the
Employee shall not, without the prior written consent of Employer, disclose to
third parties any confidential financial, business or technical information or
trade secret acquired in the course of the Employee’s employment by Employer
except to the extent such disclosure is necessary or appropriate for the
Employee to perform his duties hereunder. This restriction shall cease to apply
to any such confidential information that: (1) is now or subsequently becomes
generally known or available by publication, commercial use, in the public
domain, or required by law to be disclosed, or (2) is known by a third party at
the time of receipt of such information from the Employee or, (3) was rightfully
furnished to the third party by the Employee or otherwise during the term of
this Agreement. The Employee acknowledges and agrees that it would be
difficult to compensate Employer fully for damages resulting from the breach or
threatened breach of the confidentiality provisions set forth in this Section
11, and, agrees that Employer shall be entitled to enforce the provisions set
forth in Section 11 through preliminary and permanent injunctions in addition to
any other remedies available to Employer at law or equity. Further,
the parties agree to keep the contents of this Agreement
confidential.
9. Miscellaneous.
(a) Governing
Laws. The laws of the State of Florida, without regard to its
choice of law principles to the extent they would result in the application of
the laws of any other state, shall govern the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto.
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(b) Severability. If
any one or more provisions of this Agreement, or the application thereof, shall
for any reason and to any extent by invalid or unenforceable, the remainder of
this Agreement shall be interpreted so as best to reasonably effect the intent
of the parties. The parties further agree to replace any such void or
unenforceable provisions of this Agreement with valid and enforceable provisions
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provisions.
(c) Entire Agreement;
Amendment. This Agreement constitutes the entire agreement
between the parties with respect to its subject matter and it supersedes all
prior negotiations and agreements relating to the matters addressed
herein. This Agreement may be amended only by a writing signed by
both Employer and the Employee.
(d) No
Waiver. The failure of any party to enforce any of the
provisions of this Agreement shall not be construed to be a waiver of the right
of the party thereafter to enforce such provisions.
(e) Notices. Whenever
a party desires or is required to give any notice, demand, or request with
respect to this Agreement, each such communication shall be in writing and shall
be delivered in person or delivered by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to
Employer:
If to
the Employee:
or in
any such case, at such other address or addresses as shall have been furnished
in writing by such party to the other. All communications shall be
deemed effective upon receipt.
(f) Assignment. Neither this Agreement nor
any rights hereunder are assignable or otherwise transferable by the Employee,
in whole or in part. Employer may assign or transfer this Agreement
and rights hereunder to any affiliate or successor of substantially all of its
assets whether by merger, consolidation or otherwise provided the Employer shall
notify the Employee within ten (10) days after any such assignment or transfer
and the assignee or successor shall agree in writing to the terms and conditions
of this Agreement. Any such permitted assignee or successor shall be
deemed the “Employer” herein.
(g)
Arbitration. Any action, dispute,
controversy or claim between or among the Parties, whether sounding in contract,
tort, or otherwise ("Dispute") shall, at the request of any Party, be finally
resolved by arbitration before a single arbitrator in accordance with the
commercial rules and procedures as established by the American Arbitration
Association, with venue in Palm Beach County, Florida.
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(h)
Attorney Fees
Provision. In any litigation, arbitration, or other proceeding
by which one party either seeks to enforce its rights under this Agreement
(whether in contract, tort, or both) or seeks a declaration of any
rights or obligations under this Agreement, the prevailing party shall be
awarded its reasonable attorney fees, and costs and expenses
incurred.
(i)
Execution. The
foregoing Employment Agreement is established by the following signatures of the
parties and upon execution by both parties is effective as of the date first set
forth above provided the closing on the Agreement For Purchase And Sale Of Stock
has occurred or occurs simultaneous with this Agreement. This
Agreement may be executed in separate counterparts, each of which, when taken
together shall constitute one original. This Agreement is effective upon
transmission by facsimile or other electronic copies of signed documents by each
party to the other party along with signed copies of the Agreement For Purchase
And Sale Of Stock.
By:___________________________
Xxxxxxx
X. Xxxxxx, Sec.
EMPLOYEE:
_____________________________
XXXXX
XxXXXXXXX
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