10.1 Employment Agreement with Xxxxxx Xxxxxxx Xxxx
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this 1
day of April, 2002, by and between XXXXXX X. XXXX of 0000 Xxxx Xxxxxxxxxx Xxxx
Xx Xxxxxxxxxx, XX. 00000 (hereinafter "Employee"), and National Beauty
Corporation [a Nevada Corporation) having it's principal offices at 0000 Xxxx
Xxxxxxxxxx Xxxx, Xx. Lauderdale (hereinafter "Employer")
W I T N E S S E T H
This Agreement is made and entered into under the following circumstances:
(1) Whereas, Employer is engaged in the business of Beauty Industry
Services, and other businesses; and
(2) Whereas, Employer desires, on the terms and conditions stated herein, to
employ the Employee as a President, and Chief Executive Officer; and
(3) Whereas, the Employee desires, on the terms and conditions stated
herein, to be employed by the Employer.
NOW THEREFORE, in consideration of the foregoing recitals, and of the
promises, covenants, terms and conditions contained herein, which is hereby
acknowledged by the parties hereto, it is agreed as follows:
1. Employment and Term.
a) Subject to earlier termination as provided for in this Section 1 and in
Section 2 hereof, the Employer hereby employs Employee, and Employee hereby
accepts employment with the employer, as President and Chief Executive Officer
for a period of five (5) years (hereinafter the "Term of Employment") commencing
the 1 day of April, 2002 (hereinafter the "Effective Date") through the 1
day of April 2007. The Term of Employment shall be renewed upon the mutual
agreement of Employee and Employer. This agreement and Employee's employment may
be terminated at the Employer's discretion during the Term of Employment,
provided that Employer shall pay to Employee an amount of Employee's base salary
for the remaining period of the Term of Employment.
b) This Agreement may be terminated by Employee at Employee's discretion by
providing at least thirty (30) days prior written notice to Employer. In the
event of termination by Employee pursuant to this subsection, Employer may
immediately relieve Employee of all duties and immediately terminate this
Agreement, provided that Employer shall pay Employee at the then applicable base
salary rate to the termination date included in Employee's original
termination notice.
2. Employment Termination. Subject to earlier termination as provided for in
this Section, the Employer hereby employs Employee, and Employee hereby accepts
employment with the employer pursuant to the terms of this agreement, which
empowers Employer to terminate employee at any time with cause. Cause shall be
defined as: i) failure of Employee to perform the duties in a manner
satisfactory to Employer, in its sole discretion; provided, however, that the
Employment shall not be terminated pursuant to this subparagraph (i) unless
Employer first gives Employee a written notice ("Notice of Deficiency"). The
Notice of Deficiency shall specify the deficiencies in Employee's performance of
his duties. Employee shall have a period of thirty (30) days, commencing on
receipt of the Notice of Deficiency, in which to cure the deficiencies contained
in the Notice of Deficiency. In the event Employee does not cure the
deficiencies to the satisfaction of Employer, in its sole discretion, within
such thirty (30) day period, the Employer shall have the right to immediately
terminate the Employee's Employment. The provisions of this subparagraph (i) may
be invoked by Employer any number of times and cure of deficiencies contained in
any Notice of Deficiency shall not be construed as a waiver of this subparagraph
(i) nor prevent the Employer from issuing any subsequent Notices of Deficiency;
ii) any dishonesty by Employee in dealings with the Employer, the commission of
fraud by Employee, or negligence or willful neglect in the performance of the
duties of Employee; iii) the arrest or conviction (or plea of guilty or nolo
contendere) of Employee of any felony or other crime involving dishonesty or
moral turpitude; iv) any violation of any provision contained in this agreement;
v) unlawful use of narcotics or other controlled substances, or use of alcohol
or other drugs in a manner the Employer reasonably determines to be adverse to
the best interest of the Employer, vi) Failure of Employee to attend training
programs required for competency in his duties (job description) as an Employee;
vii) if, due to any act or omission of Employee, liability insurance cannot be
reasonably obtained or maintained, or if, due to any act or omission of
Employee, liability insurance is canceled, terminated or revoked; or, For all
purposes of this Agreement, termination for "cause" shall be deemed to have
occurred in the event of Employee's resignation when, because of existing facts
and circumstances, subsequent termination for "cause" can be reasonably forseen.
In the event of termination pursuant to this subsection, Employee shall be paid
only at the then applicable base salary rate up to and including the date of
termination. Employee shall not be paid any incentive salary payments or other
compensation, prorated or otherwise.
3. Duties and Responsibilities. Employee shall: (a) engage full-time
services, on behalf of Employer, at locations directed by Employer, as Employer
may designate; (b) perform all managerial duties necessary; (c) perform such
other duties as may from time to time be reasonably assigned to the Employee by
Employer; (d) cooperate with Employer, to the fullest ethical extent, to promote
Employer's business and to continue and expand the products provided by
Employer, and to further the best interests of the Employer; and (e) perform all
services in a professional manner using the full knowledge and skill of Employee
which services shall be performed in accordance with standards and procedures
established by Employer. Employee shall (i) devote Employee's entire business
time, attention and energies exclusively to the Employer, and (ii) faithfully
and competently perform the duties hereunder using Employee's full professional
skill and knowledge; and (iii) not engage in any other professional or business
activity.
4. Compensation. Employee shall be paid compensation during this Agreement
as follows: a) A base salary of $250,000.00 per year, payable in installments
according to the Employer's regular payroll schedule; b) An additional payment
of two hundred fifty thousand shares of preferred stock, as authorized in the
company by-laws, to be issued each year on the anniversary of this agreement for
the full term specified of this agreement.
5. Benefits.
a) Vacation/Personal Time. Employer shall be entitled to an aggregate of
fourteen (21) working days paid vacation during each full year during the Term
of Employment. In addition, personal time will be provided, calculated at a rate
of four (4) hours during each full year during the Term of Employment.
b) Holidays. Employee shall be entitled to at lease six (6) paid holidays
each calendar year, Employer shall notify Employee on or about the beginning of
each calendar year with respect to the holiday schedule for the coming year.
Personal holidays, if any, will be scheduled in advance subject to requirements
of Employer. Such holidays must be taken during the calendar year and cannot be
carried forward into the next year.
c) Sick Leave. Employee shall be entitled to sick leave and emergency leave
which shall be liberally granted upon reasonable notice.
d) Medical and Group Life Insurance. Employer agrees to include Employee in
the group medical and hospital plan of Employer and provide group life insurance
for Employee at no charge to Employee in the amount of $300,000.00 during
this agreement.
e) Pension and Profit Sharing Plans. Employee shall be entitled to
participate in any pension or profit sharing plan or other type adopted by the
Employer for the benefit of its officers and/or regular employees.
f) Automobile. Employer shall pay all automobile operating expenses incurred
by Employee in the performance of Employee's duties. Employer shall procure
and maintain in force an automobile liability policy for the automobile with
coverage, including Employee, in the minimum amount of $1,000,000.00 combined
single limit on bodily injury and property damage.
g) Expense Reimbursement. Employee shall be entitled to reimbursement for
all reasonable expenses, including travel and entertainment, incurred by
Employee in the performance of Employee's duties. Employee shall maintain
records and written receipts as required by the Employer and reasonably
requested by the board of directors to substantiate such expenses.
6. Non-Competition. During the Term of Employment and for a continuous
period of two (2) years commencing upon termination of employment, Employee
shall not, individually or jointly with others, own or hold any ownership or
voting interest in any person or entity engaged in a business the same as or
similar to any business of the employer or which competes in any manner
whatsoever with the business of Employer, and which is located or intended to be
located in the State of Florida; and Employee shall not act as an officer,
director, employee, partner, independent contractor, consultant, principal,
agent, proprietor, or in any other capacity for, not lend any assistance
(financial, managerial, professional or otherwise) or cooperation to, nor
perform any services for, any such person or entity; and during the Term of
Employment Employee shall be prohibited from the foregoing activities and
relationships with any person or entity which competes with Employer, regardless
of the geographic location of such person or entity.
7. Non-Disclosure; Non-Solicitation. Except in the performance of servicing
customers of Employer, at no time during the Term of Employment or at anytime
thereafter shall Employee, individually or jointly with others, for the benefit
of Employee or any third party, publish, disclose, use or authorize anyone else
to publish, disclose or use, any secret or confidential material or information
regarding the business methods, business policies, procedures, techniques or
trade secrets, or other knowledge or processes of or developed by Employer
(and/or any other Employee or agent of Employer), any affiliate of the employer,
any entity in which the Employer has an interest, including, without limitation,
any secret or confidential information relating to the business, customers,
financial position, trade or industrial practices, trade secrets, technology or
know-how of the Employer. Furthermore, for a period of two (2) years commencing
upon termination of Employee's employment, Employee shall not solicit or
contact, or cause any other person or entity to solicit or contact, any current
customer of Employer at the time of termination.
8. Reasonableness of Restrictions; Reformation; Enforcement. The parties
hereto recognize and acknowledge that the geographical and time limitations
contained in Section 6 and 7 hereof (hereinafter "Restrictive Covenants") are
reasonably necessary to protect the Employer's legitimate business interests and
properly required for the adequate protection of such business interests of
Employer. Employee acknowledges that the Employer will provide to Employee
confidential information concerning the Employer's business methods and
operating practices in reliance on the covenants contained in the Restricted
Covenants. It is agreed by the parties hereto that if any portion of the
restrictions contained in the Restrictive Covenants. It is agreed by the parties
hereto that if any portion of the restrictions contained in the Restrictive
Covenants are held to be unreasonable, arbitrary, or against public policy, then
the restrictions shall be considered divisible, both as to the time and to the
geographical area, with each month of the specified period being deemed a
separate period of time and each radius mile of the restricted territory being
deemed a separate geographic area, so that the lesser period of time or
geographical area 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 of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area which is determined to be reasonable, nonarbitrary, and not
against public policy may be enforced against Employee. If Employee shall
violate any of the covenants contained herein and if any court action is
instituted by the Employer to prevent or enjoin such violation, then the period
of time during which the Employer's business activities shall be restricted, as
provided in this Agreement, shall be lengthened by a period of time equal to the
period between the date of the Employee's breach of the terms or covenants
contained in this Agreement and the date on which the decree of the court
disposing of the issued upon the merits shall become final and not subject to
further appeal.
9. No Remedy At Law. Employee agrees that the remedy at law for any breach
by Employee of the covenants contained in Sections 6 and 7 will be inadequate
and would be difficult to ascertain and therefore, in the event of the breach or
threatened breach of any such covenants, the Employer, in addition to any and
all other remedies, shall have the right to enjoin Employee from any threatened
or actual activities in violation thereof, and Employee hereby consents and
agrees that temporary and permanent injunctive relief may be granted in any
proceedings which might be brought to enforce any such covenants without the
necessity of proof of actual damages.
10. Representations of Employee. Employee hereby makes the following
representations to Employer, each of which is material and is being relied on by
Employer and shall be true as of the date hereof and throughout the Term of
Employment:
a) Employment Qualifications. Employee shall (i) use Employee's best efforts
to maintain qualifications as a general manager, (ii) is experienced in
administrative procedure, (iii) agrees to participate and shall participate in a
continuing education and/or training programs, (iv) use Employee's best efforts
as a general manager.
b) Factual Information. Any and all factual information furnished by
Employee to Employer is true and accurate in every material respect as of the
date on which such information was furnished.
c) Professional Conduct. Employee has and will continue to conduct all
activities in accordance and compliance with any and all laws, regulations and
ethical standards.
d) Authority. Employee has full power and authority to enter into this
Agreement and perform all obligations hereunder. The execution and performance
of this Agreement by Employee will not constitute a breach or violation of any
covenant, agreement or contract to which Employee is a party or by which
Employee is bound.
11. Books, Office Equipment, Etc.
a) Employee's Ownership. All books, office equipment and other property
furnished by Employee shall remain Employee's property
b) Employees Ownership. All instruments, equipment, furniture, furnishings,
supplies, products, samples, forms, charts, logs, brochures, client records,
procedures, contracts and any other property, materials or information furnished
by Employer are and shall remain the sole property of Employer. Upon
termination of this Agreement, Employee shall return all such property to
Employer.
12. Assignability. This Agreement and the rights and duties created
hereunder shall not be assignable or delegable by Employee. Employer may, at
Employer's optio and without consent of Employee, assign its rights and duties
hereunder to any successor entity or transferee of Employer's assets.
13. Notices. All notices or other communications provided for herein to be
given or sent to a party by the other party shall be deemed validly given or
sent if in writing and mailed, postage prepaid, by registered or certified
United States mail, addressed to the parties at their addresses hereinabove set
forth. Any party may give notice to the other parties at any time, by the method
specified above, of a change in the address at which, or the person to whom,
notice is to be addressed.
14. Severability. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant or provision
hereof. In the event that any provision of this Agreement shall be determined to
be invalid or unenforceable, such provision shall be deemed limited by
construction in scope and effect to the minimum extent necessary to render the
same valid and enforceable provision shall be deemed severed from this
Agreement, but every other provision of this Agreement shall remain in full
force and effect.
15. Effect of Termination. The termination of this Agreement, for whatever
reason, shall not extinguish those obligations of Employee specified in the
Restrictive Covenants, nor shall the same extinguish the right of either party
to bring an action, either in law or in equity, for breach of this Agreement by
the other party.
16. Waiver. The failure of a party to enforce any term, provision or
condition of this Agreement at any time or times shall not be deemed a waiver of
that term, provision or condition for the future, nor shall any specific waiver
of a term, provision or condition at one time be deemed a waiver of such term,
provision or condition for any future time or times.
17. Parties. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their heirs, personal representative, legal
representative and proper successors and assigns, as the case may be.
18. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State of Florida, without giving
effect to the principles of comity or conflicts of laws thereof.
19. Captions. The captions of this Agreement have been assigned thereto for
convenience only, and shall not be construed to the limit, define or modify the
substantive terms hereof.
20. Entire Agreement; Counterparts. This Agreement constitutes the entire
agreement between the parties hereto concerning the subject matter hereof, and
supersedes all prior agreements, memoranda, correspondence, conversations and
negotiations. This Agreement may be executed in several counterparts that
together shall constitute but one and the same Agreement.
21. Costs of Enforcement. In the event it is necessary for any party to
retain the services of an attorney or to initiate legal proceedings to enforce
the terms of this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party, in addition to all other remedies, all costs of
such enforcement, including reasonable attorneys' fees and including trial and
appellate proceedings.
22. Gender, Etc. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
IN WTINESS WHEREOF, the undersigned have hereunto set their hands on the
date first above written.
Signed in the presence of:
Employee:
XXXXXX X. Xxxx
/s/Xxxxxx X. Xxxx
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As to Employee Signed in the presence of:
Employer:
NATIONAL BEAUTY CORP.
ATTEST /s/Xxxxxx Xxxx
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By / s/Xxxxxx Xxxx
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Secretary
BY XXXXXXX XXXXXXXXXXX
Director: /s/ Xxxxxxx Xxxxxxxxxxx
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DIRECTOR
XXXXXXX X. PATAGALIA,
DIRECTOR: /s/Xxxxxxx X. Patagalia
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