EXHIBIT 10.3
Employment Agreement
EMPLOYMENT AGREEMENT ("Agreement") made as of March, 2005 ("Effective
Date"), between Xxxxxx Xxxxxx an individual residing at 00000 XX 00xx Xx.,
Xxxxx, XX 00000 (hereinafter referred to as the "Employee") and Aventura
Electrolysis and Skin Care Center, Inc, a Florida corporation with offices at
000X Xxx Xxxxxxx Xxx., Xxxxxxxxxx, XX 00000 (hereinafter referred to as the
"Employer"). Employer and Employee being sometimes hereinafter collectively
referred to as the "Parties" or generically as a "Party").
WHEREAS, the Employer desires to employ the Employee, and the Employee
desires to serve as an employee of the Employer on the terms and conditions
hereinafter set forth. NOW THEREFORE, in consideration of the mutual covenants
and promises of the parties hereto, the Employer and the Employee agree as
follows:
1. Employment: The Employer hereby agrees to employ the Employee as Manager
of Laser Skin Care to perform service-related functions of the Employer, and the
Employee hereby agrees to perform such services for the Employer on the terms
and conditions hereinafter stated.
2. Term of Employment: The term of this Agreement shall begin on the
Effective Date and shall continue in full force and effect for fifteen (15)
months from the date of execution of this Agreement, ("Term"); provided,
however, that this Agreement shall be automatically renewed on a year-to-year
basis thereafter ("Renewal Term") unless terminated by either party on at least
30 days written notice prior to the expiration of the Term or Renewal Term,
unless sooner terminated as provided herein.
3. Compensation and Benefits:
(a) During the Term of this Agreement, for all services rendered by
Employee under this Agreement, the Employer shall pay the Employee
compensation equal to 60% of the Employer's gross receipts for the services
Employee personally renders, whether to an existing or new client
("Compensation"), payable in accordance with any then current Employer
payroll procedures, subject to all applicable withholdings and deductions
but not less then twice a month.
(b) During the Term of this Agreement, for all products Employee
personally sells, Employer shall pay the Employee compensation equal to 10%
of Employer's gross revenue from these products.
1
(c) During the Term of this Agreement, Employer shall pay the Employee
compensation equal to 5% of Employer's gross revenue from clients directly
referred by the employee receiving medical cosmetic procedures until such
time that Employer employs a Physician to perform medical cosmetic
procedures at which time the parties agree to review and increase
commission to Employee based upon the increased profitability to Employer
for medical services. All commissions in this provision are payable in
accordance with any then current Employer payroll procedures, subject to
all applicable withholdings and deductions but not less then twice a month
(d) In the event that Employee is asked, in writing by Employer, to
directly oversee other electrologists and/or laser and/or personnel
providing laser hair removal and electrolysis treatments, then Employer
shall pay the Employee compensation equal to 10% of gross receipts from
said treatments. Employer agrees that all customers and clients requesting
the services of Employee shall be directed to Employee. Further, Employer
agrees use its best efforts to give priority to Employee to provide new
customers and clients and regarding scheduling of clients for electrolysis
and laser hair removal.
(e) Employee is eligible to receive 25,000 shares of Common Stock of
the Employer's parent, Medical Makeover Corporation of America ("MMAM"), if
the Employee meets the annual revenue target for services she directly
delivers under this Agreement. The target for the first 12 months of this
agreement is $150,000 of revenue collected for services delivered by the
employee. As 25,000 shares is payable for achieving 100% of target, the
payout of shares will be adjusted up or down proportionately based on the
variance from the $150,000 target. The target for the subsequent three (3)
months under the term of this Agreement shall be $37,500.00 dollars and the
shares of Common Stock of MMAM due Employee shall be prorated and adjusted
for said three (3) month period as provided above.
(f) Employee has previously made arrangements for vacation from June
22 through June 29, 2005 and the Parties agree that she be entitled to
schedule and take this specific vacation time.
4. Compliance/Expenses
(a) The Employee is authorized to incur on behalf of the Employer only
such reasonable and necessary expenses in connection with the business of
the Employer as are in conformity with the Employer's published guidelines.
The Employer shall reimburse Employee for all such necessary and reasonable
expenses incurred in connection with the business of the Employer upon the
presentation by the Employee, from time to time, of an itemized account of
such expenditures, which account shall be in form and substance in
conformity with the rules and regulations of the Internal Revenue Service.
Any single expenditure in excess of One Hundred Dollars ($100.00) shall
require the prior approval of the Chief Executive Officer or Chief
Financial Officer of the Employer.
2
(b) The parties hereto specifically acknowledge and agree they shall
each act in good faith and diligently in order to comply with all statutes,
laws, ordinances, procedures, and licensing requirements, rules and
regulations applicable to the operation and providing of services in
connection with electrolysis and laser hair removal at the sole cost and
expense of Employer.
(c) The Parties recognize that Employee shall be required to attend
various seminars during the course of her employment for purposes of
obtaining continuing education units or credits necessary for Employee's
licensing. Employer shall pay the reasonable and necessary costs and
expenses associated with such seminars, which must be pre-approved by
Employer in writing.
5. Duties and Extent of Services: The Employee shall exert her best efforts
and shall devote her full time and attention to the affairs of the Employer.
During the Term of this Agreement the Employee shall not, directly or
indirectly, alone or as a member of a partnership (in the capacity of a general
partner) or limited liability company (in the capacity of a manager), or as an
officer, director, significant shareholder (i.e., owning or holding beneficially
or of record five percent (5%) or more of the voting shares of an entity), or
employee of any other corporation or entity, be engaged in or concerned with any
other duties or pursuits whatsoever requiring her personal services without the
prior written consent of the Employer.
(a) Location or Non-Operation of Business. In connection with this
Agreement, Employer shall provide a facility in Aventura, Florida or within
a five (5) mile radius of the City of Aventura , in compliance with
applicable law for the providing of electrolysis and laser hair removal
procedures by Employee. Such location shall be reasonably accessible,
decorated and furnished with equipment reasonably necessary for such
operation. In the event Employer ceases operations in Aventura, Florida for
any reason whatsoever, Employee shall have the right, but not the
obligation, to repurchase all assets owned by Aventura Laser for an amount
equal to the depreciated value of such assets.
6. Termination: Unless renewed as provided herein, the Employee's
employment hereunder shall terminate at the end of the fifteen (15) month term
of this Agreement or sooner upon the occurrence of any of the following events:
(a) The Employee's death; all earned compensation and shares due will
be deposited in the Employee's appropriate personal account,
(b) The termination of the Employee's employment hereunder by the
Employer, at its option, to be exercised by written notice from the
Employer to the Employee, upon the Employee's incapacity or inability to
perform her services as contemplated herein for a period of at least 30
3
consecutive days or an aggregate of 45 consecutive or non-consecutive days
during any twelve-month period during the Term hereof due to the fact that
her physical or mental health shall have become impaired so as to make it
impossible or impractical for her to perform the duties and
responsibilities contemplated for her hereunder; or
(c) The termination of the Employee's employment hereunder by the
Employer, at its sole option, for "Cause." For purposes of this Agreement,
the Employer shall have "Cause" to terminate the Employee upon the
Executive's (i) conviction of a felony or finding by a Court of competent
jurisdiction, or as a result of arbitration in accordance with the terms of
this Agreement, of willful gross misconduct that, in either case, results
in material and demonstrable damage to the business or reputation of the
Company; (ii) intentional, willful and continued failure to materially
perform her duties hereunder within five (5) days after the Employer
delivers to her a written demand for performance that specifically
identifies the actions to be performed provided such performance is in
compliance with Employee's duties hereunder; (iii) intentionally and
willfully committing or participating in an injurious act of fraud, gross
neglect or embezzlement that, results in material and demonstrable damage
to the business or reputation of the Company; or (iv) intentional and
willful misappropriation or unauthorized use of Employer's assets, funds or
resources.
(d) Cessation of the Employer's business, at which time all monies due
Emloyee pursuant to this Employement Agreement, Stock Exchange Agreement,
and equipment lease agreement will be due and paid to Employee at such
time.
7. Restrictions On The Employee: During the term of Employee's employment,
or only if Employer terminates the Employee pursuant to Paragraph 6c regarding
cause then for a period of six (6) months after termination for cause, the
Employee shall not directly or indirectly solicit, induce or attempt to solicit
or induce any of the employees of the Employer to leave the employ or the
services of Employer.
(a) Non-Disparagement. Employee and parent covenants and agrees that
they shall not engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks (including, without
limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or good will of the
other.
(b) Return of Money. If the Employer terminates the Employee pursuant
to Section 6(c) for "cause" the Employee is not required to return payments
against the $125,000 obligation set forth in the Share Exchange Agreement
and no further payments are required by the Employer. If Employee quits,
the Employee shall be required to return the cash actually received toward
4
payments of $125,000.00 as set forth in the Share Exchange Agreement
executed on this same date within five (5) days written notice from
Employer and no further payments are required by the Employer.
(c) Covenant Not To Compete:
(i) If this Agreement is terminated pursuant to Section 6(c), the
Employee covenants and undertakes that, during the Employee's
employment with the Employer and for a one (1) year period from
the effective date of the termination of her employment for cause
pursuant to Section 6c, the Employee will not, directly or
indirectly, carry on, or be engaged, concerned, or take part in,
or render services to, or own, share in the earnings of, or
invest in the stock, bonds, or other securities of any person,
firm, corporation, or other business organization (other than the
Employer) engaged in a business in Miami-Dade and Broward
Counties, Florida which is in competition with the Employer (a
"Similar Business") within ten (10) miles of any existing
business operation of Employer.
8 Proprietary Information:
(a) For purposes of this Agreement, "proprietary information" shall
mean any proprietary information relating to the business of the Employer
or its Parent or any entity in which the Employer or its Parent has a
controlling interest that has not previously been publicly released by duly
authorized representatives of the Employer and/or is not generally
available to the public, and/or which was specifically learned by Employee
solely through the employment with Employer shall include (but shall not be
limited to) information encompassed in all proposals, marketing and sales
plans, financial information, costs, pricing information, computer programs
(including without limitation source code, object code, algorithms and
models), customer information, customer lists, and all methods, concepts,
know-how or ideas in or reasonably related to the business of Employer or
any entity in which the Employer has a controlling interest except as to
methods, concepts, know-how, or ideas reasonably related to electrolysis or
laser hair removal. The Employee agrees to regard and preserve as
confidential all proprietary information, whether she has such information
in her memory or in writing or other tangible or intangible form. The
Employee will not, without written authority from the Employer to do so,
directly or indirectly, use for her benefit or purposes, nor disclose to
others, either during the term of her employment hereunder or thereafter,
any proprietary information except as required by the conditions of her
employment hereunder or pursuant to court order (in which case Employee
shall give the Employer prompt written notice so that the Employer may seek
a protective order or other appropriate remedy and/or waive compliance with
the provisions of this Agreement. The Employee agrees not to remove from
the premises of the Employer or any subsidiary or affiliate of the
Employer, except as an employee of the Employer in pursuit of the business
of the Employer or any of its subsidiaries, affiliates or any entity in
which the Employer has a controlling interest, or except as specifically
5
permitted in writing by the Employer, any document or object containing or
reflecting any proprietary information. The Employee recognizes that all
such documents and objects, whether developed by him or by someone else,
are the exclusive property of the Employer. Proprietary information shall
not include information which is presently in the public domain or which
comes into the public domain through no fault of the Employee or which is
disclosed to the Employee by a third party lawfully in possession of such
information with a right to disclose same or information regarding
customers or clients serviced by Employee.
(b) All proprietary information and all of the Employee's interest in
trade secrets unrelated to electrolysis or laser hair removal, trademarks,
computer programs, customer information, customer lists except as customer
information and customer lists for customers or clients serviced by
Employee, employee lists, products, procedure, copyrights, patents and
developments hereafter to the end of the period of employment hereunder
developed by the Employee as a result of, or in connection with, her
employment hereunder, shall belong to the Employer; and without further
compensation, but at the Employer's expense, forthwith upon request of the
Employer, Employee shall execute any and all such assignments and other
documents and take any and all such other action as Employer may reasonably
request in order to vest in Employer all the Employee's right, title and
interest in and to all of the aforesaid items, free and clear of liens,
charges and encumbrances. It is understood that HIPPA and other compliance
obligations may make it necessary for the Employee to retain certain client
records relative to treatments, etc. Upon expiration or termination of this
Agreement, Employee shall be entitled to customer lists and customer
information.
(c) The Employee expressly agrees that the covenants set forth herein
are being given to Employer in connection with the employment of the
Employee by Employer and that such covenants are intended to protect
Employer against the competition by the Employee, within the terms stated,
to the fullest extent deemed reasonable and permitted in law and equity. In
the event that the foregoing limitations upon the conduct of the Employee
are beyond those permitted by law, such limitations, both as to time and
geographical area, shall be, and be deemed to be, reduced in scope and
effect to the maximum extent permitted by law.
9. Injunctive Relief: The Parties acknowledges that the injury to either
Party resulting from a violation of the covenants contained in this Agreement
may be of such a character that it cannot be adequately compensated by money
damages, and, accordingly, any of the Parties may, in addition to pursuing its
other remedies, obtain an injunction from any court having jurisdiction of the
matter restraining any such violation.
10. Representation of Employee: The Employee represents and warrants that
neither the execution and delivery of this Agreement nor the performance of her
duties hereunder violates the provisions of any other agreement to which she is
a party or by which she is bound.
6
11. Parties; Non-Assignability: Any assignment by Employer of this
Agreement shall be subject to the provisions of this Agreement. This Agreement
and all rights hereunder are personal to the Employee and shall not be
assignable by her and any purported assignment shall be null and void and shall
not be binding on the Employer.
12. Entire Agreement: This Employment Agreement, Share Exchange Agreement
and Lease Agreement contain the entire agreement between the parties hereto with
respect to the transactions contemplated herein and supersedes all previous
representations, negotiations, commitments, and writing with respect thereto.
13. Amendment or Alteration: No amendment or alteration of the terms of
this Agreement shall be valid unless made in writing and signed by all of the
parties hereto.
14. Choice of Law: This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations. In the event that there
is any controversy or claim arising out of or relating to this Agreement, or to
the interpretation, breach or enforcement thereof, and any action or proceeding
is commenced to enforce the provisions of this Agreement, the prevailing Party
shall be entitled to a reasonable attorney's fee, costs and expenses.
15. Arbitration: Except for a claim for Injunctive Relief, any controversy,
dispute or claim arising out of or relating to this Agreement, or its
interpretation, application, implementation, breach or enforcement which the
Parties are unable to resolve by mutual agreement, shall be settled by
submission by either Party of the controversy, claim or dispute to binding
arbitration in Miami-Dade County, Florida (unless the Parties agree in writing
to a different location), before one arbitrator in accordance with the rules of
the American Arbitration Association then in effect. In any such arbitration
proceeding the Parties agree to provide all discovery deemed necessary by the
arbitrator. The decision and award made by the arbitrator shall be final,
binding and conclusive on all Parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
16. Notices: All notices relating to this Agreement must be in writing and
delivered either in person or by certified mail or registered mail, postage
prepaid, return receipt requested, to the person(s) and address specified on the
first page of this Agreement or such updated address as either party may
subsequently designate by notice in writing. Notice shall be effective
immediately upon receipt.
17. Waiver of Breach: The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any of the parties hereto.
18. Binding Effect: The terms of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective personal
representatives, heirs, administrators, successors, and permitted assigns.
7
19. Gender: Pronouns in any gender shall be construed as masculine,
feminine, or neuter as the context requires in this Agreement.
20. Counterparts and Fascimile. This Agreement may be executed by the
parties via fascimile and in one or more counterparts, each of which when so
executed shall be deemed an original hereof and all of which, individually and
collectively, shall constitute one single contract between the parties.
21. Severability. If any term, provision, or part of this Agreement is
found by a court to be invalid, illegal, or incapable of being enforced by any
rule of law or public policy, all other terms, provisions, and parts of this
Agreement shall nevertheless remain in full force and effect as long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any Party. On such determination
that any term, provision, or part of this Agreement is invalid, illegal, or
incapable of being enforced, this Agreement shall be deemed to be modified so as
to effect the Parties' original intent as closely as possible to the end of the
transactions contemplated by this agreement and the terms and provisions of this
Agreement are fulfilled to the greatest extent possible.
22. Voluntary Agreement/Review. The Parties each acknowledge, represent and
warrant that they have reviewed and understand this Agreement in its entirety
and that they have entered into this Agreement freely and voluntarily. The
language in all parts of this Agreement shall be in all cases construed
according to its fair meaning and not strictly for or against either Party.
23. Further Assurances. The 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.
24. Joint and Several Liability. Medical Makeover Corporation of America,
Inc. ("Parent") and Aventura Makeover Corporation ("Aventura") shall be joint
and severally liable with Employer pursuant to this Agreement as to all
warranties, representations, agreements and/or covenants made by either
employer, parent or Aventura and each unconditionally guarantees the performance
pursuant to the Agreement of each and every such warranty, representation,
agreement and covenant. In addition, all warranties, representations agreements
and covenants shall survive the termination of this Agreement.
25. Agreements. The parties acknowledge that in the event of any default
pursuant to this Agreement by Employer or Employee, including failure to make
payment when due, such default shall be deemed a default under all other
agreements entered into at the time of execution of this Agreement, specifically
including, but not limited to, the Share Exchange Agreement between Medical
Makeover Corporation of America, Inc., Aventura Makeover Corporation, Inc., and
Aventura Electrolysis and Skin Care Center, Inc. and the equipment lease
agreement between Aventura Electrolysis and Skin Care Center, Inc., Medical
Makeover Corporation of America, Inc., Aventura Makeover Corporation, and Xxxxxx
Xxxxxx or her designees.
8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Aventura Electrolysis and Skin Care Center, Inc,
a Florida corporation,
/s/ Xxxxxx Xxxxxx
----------------------------------
Its: President
Medical Makeover Corporation of America, Inc.,
a Delaware corporation,
By:/s/ Xxxxx Xxxxx
----------------------------------
Its: President
Aventura Makeover Corporation,
a Florida corporation,
By:/s/ Xxxxx Xxxxx
----------------------------------
Its: President
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
9
