Exhibit 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT made and entered into as of the 28th day of
February 2002, by and between Universal Tanning Ventures, Inc., a Delaware
corporation (the "Corporation"), and Xxxx Xxxxx, an individual residing at 0000
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Executive").
WITNESSETH THAT:
WHEREAS, the Corporation desires to employ the Executive in the capacity
hereinafter stated, and the Executive desires to enter into employment of the
Corporation in such capacity for the period and on the terms and conditions set
forth herein;
NOW, THEREFORE, in the consideration of the mutual covenants and
agreements set forth below, it is hereby covenanted and agreed by the
Corporation and the Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ the
Executive as its President and Chief Executive Officer, and the Executive, in
such capacity, agrees to provide services to the Corporation for the period
beginning on the date first above written (the "Commencement Date") and ending
on February 28, 2004 (the "Termination Date") (or such later date as may be
agreed to by the parties within 120 days prior to be the Termination Date) (the
"Employment Period")
2. Performance of Duties. The Executive agrees that during the Employment
Period, while he is employed by the Corporation, he shall devote his full time,
energies and talents exclusively to serving in the capacity of President and
Chief Executive Officer, of the Corporation in the best interests of the
Corporation, and to perform duties assigned to him by the Board of Directors
faithfully, efficiently and in a professional manner. Without the Board's
consent (which consent shall not be unreasonably withheld), the Executive shall
not serve as or be a consultant to an employee, officer, agent or director of
any corporation, partnership or other entity other than the Corporation (other
than civic, charitable, or other public service organizations); provided that no
such consent shall be required in respect of the N/A or any arrangement under
which the Executive provides business management or public relations services.
3. Compensation. Subject to the terms and conditions of this Agreement,
during the Employment Period, the Executive shall be compensated by the
Corporation for his services as follows:
(a) He shall receive $2,500.00 per month from the date hereof through
the Termination Date.
(b) He shall receive such cash and/or stock bonuses as are determined
by the compensation committee of the Board of Directors in its sole discretion.
4. Compensation Due Upon Termination. The Executive's right to
compensation for periods after the date his employment with the Corporation
terminates shall be determined in accordance with the following:
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(a) Discharge Without Cause. If the Corporation terminates the
Executive's employment under this Agreement without "cause" (as defined below),
the Executive shall be entitled to receive six months base salary.
(b) Voluntary Resignation. The Corporation shall have no obligation
to make payments to the Executive in accordance with the provisions of paragraph
3 for the periods after the date on which the Executive's employment with the
Corporation terminates due to the Executive's voluntary resignation.
(c) Discharge for Cause. The Corporation shall have no obligation to
make payments to the Executive in accordance with the provisions of paragraph 3
for periods after the Executive's employment with the Corporation is terminated
on account of the Executive's discharge of cause. The Executive shall be
considered discharged for "cause" if he is discharged by the Corporation on
account of the occurrence of one or more of the following events:
(i) the Executive becomes habitually addicted to drugs or
alcohol;
(ii) the Executive discloses confidential information in
violation of paragraph 5;
(iii) the Executive engages in competition in violation of
paragraph 6;
(iv) the Corporation is directed by regulatory or governmental
authorities to terminate the employment of the Executive or the Executive
engages in activities that cause actions to be taken by regulatory or
governmental authorities that have a material adverse effect on the Corporation;
(v) the Executive is indicated for a felony ( other than a
felony resulting from a traffic violation);
(vi) the Executive disregards his duties under this Agreement;
(vii) any event of misconduct involving serious moral turpitude
to the extent that, in the reasonable judgment of the Board of Directors, the
Executive's credibility and reputation no longer conform to the standard of the
Corporation's executives; or
(viii) the Executive commits an act of fraud against the
Corporation or violates a duty of loyalty to the Corporation.
(d) Disability. The Corporation shall have no obligation to make
payments to the Executive in accordance with the provisions of paragraph 3 for
periods after the date the Executive's employment with the Corporation
terminates on account of 50% or greater disability. For the purpose of this
subparagraph 4(d), determination of whether the Executive is 50% disabled shall
be determined in accordance with applicable law.
(e) Death. The Corporation shall have no obligation to make payments
to the Executive in accordance with the provisions of paragraph 3 for periods
after the date of the Executive's death.
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5. Confidential Information. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, the Executive agrees to
keep secret and confidential indefinitely all non-public information concerning
the Corporation and its affiliates which was acquired by or disclosed to the
Executive during the course of his employment by the Corporation, any of its
affiliates, including information relating to customers (including, without
limitation, credit history, repayment history, financial information and
financial statements), costs, and operations, financial data and plans, whether
past, current or planned and not to disclose the same, either directly or
indirectly, to any other person, firm or business entity, or to use it in any
way; provided, however that the provisions of this paragraph 5 shall not apply
to information which is in the public domain or that was disclosed to the
Executive by the independent third parties who were not bound by an obligation
of confidentiality; and provided further, that the Corporation recognizes that
the Executive shall, during the course of his employment with the Corporation,
acquire certain general information regarding the financial condition, and
borrowing trends of the Corporation's customers and agrees that the provisions
of this paragraph 5 shall not apply to the use of such general information
provided the use thereof does not violate applicable Federal or state laws or
the provisions of paragraph 6 hereof. The Executive further agrees that he will
not make any statement or disclosure which would be prohibited by applicable
Federal or state laws and, during the Employment Period while he is employed by
the Corporation, he will not make nay statement or disclosure which is intended
or reasonably likely to be detrimental to the Corporation or nay of its
subsidiaries or affiliates.
6. Non-Competition; Non-solicitation; Non-disparagement. The Executive
agrees that for the period (the "Non-competition Period") commencing on the
Commencement Date and ending on the first anniversary of the date on which the
Executive's employment with the Corporation is terminated, the Executive will
not serve as or be a consultant to or employee, officer, agent, director or
owner of, or beneficially hold more than three percent (3%) of another
corporation, partnership or other entity which competes with the Corporation in
the Business. The "Business" of the Corporation shall mean the actual or
intended business of the Corporation during the Employment Period and thereafter
as of the date the Executive leaves the employment of the Corporation. As of the
date hereof, the Business of the Corporation is providing tanning services. The
Executive further agrees that for the period commencing on the Commencement Date
and ending on the second anniversary of the date on which the Executive's
employment with the Corporation under this Agreement is terminated (the
"Nonsolicitation Period"), he will not (a) solicit for employment or endeavor in
any way to entice away from employment with the Corporation or its affiliates
any employee of the Corporation or its affiliates who is an officer or a manager
of any department, (b) solicit, induce, or influence any proprietor, partner,
stockholder, lender, director, officer, employee, joint venturer, investor,
consultant, agent, lesser, supplier, customer or any other person which has a
business relationship with the Corporation or any of its subsidiaries, at any
time during the Nonsolicitation Period, to discontinue or reduce or modify the
extent of such relationship with the Corporation or any of its subsidiaries or
(c) in any way or to any person or authority, denigrate or derogate the
Corporation or any of its subsidiaries or any officer, director or employee or
any service or procedure of any of the above whether or not such denigrating or
derogatory statements shall be true or based on acts or omissions which occurred
or are learned by the Executive prior to the date hereof or from or after the
date hereof or otherwise.
7. Remedies. The Executive acknowledges that the Corporation would be
irreparably injured by a violation of paragraph 5 or 6, and agrees that the
Corporation shall be entitled to an injunction restraining the Executive from
any actual or threatened branch of paragraph 5 or 6, or to any other appropriate
equitable remedy without bond or other security being required.
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8. Successors. This Agreement shall be binding on, and inure to the
benefit of, the Corporation and its successors and assigns and any person
acquiring all or substantially all of the Corporation's assets and business,
whether by merger, consolidation, purchase of assets or otherwise.
9. Nonalienation. The interests of the Executive under this Agreement are
not subject to the claims of his creditors, other than the Corporation, and may
not otherwise be voluntarily or involuntarily assigned, alienated or encumbered
except to the Executive's estate, heirs, devises or trust beneficiaries upon his
death.
10. Waiver of Breach. The waiver by either the Corporation or the
Executive of a breach of any provision of this Agreement shall not operate as or
be deemed a waiver of any subsequent breach by either the Corporation or the
Executive.
11. Notice. Any notice to be given hereunder by a hereto shall be in
writing and shall be deemed to have been given when received or, when deposited
in the U.S. mail, certified or registered mail, postage prepaid:
(a) to the Executive addressed as follows:
Xxxx Xxxxx
000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
(b) to the Corporation addressed as follows:
Universal Tanning Ventures, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxx 00000
(c) with a copy to:
Xxxxxxxxx Xxxxxxx, LLP
Attn: Xxxxx Xxxxxxx, Xx.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
12. Amendment. This Agreement may be amended or canceled by mutual
agreement of the parties in writing without the consent of any other person and
no person, other than the parties thereto (and the Executive's estate or
beneficiaries upon his death), shall have any rights under or interest in this
Agreement or the subject matter hereof.
13. Applicable Law. The Provisions of this Agreement shall be construed in
accordance with the internal laws of the State of Florida.
14. Termination. All of the provision of this Agreement shall terminate
after the expiration of the Employment Period, except that paragraph 5 shall
only terminate upon the expiration of the Non-competition Period and paragraph 6
shall terminate upon the expiration of the Non-competition Period.
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IN WITNESS WHEREOF, the Executive and the Corporation have executed this
Employment Agreement as of the day and year first written above.
UNIVERSAL TANNING VENTURES, INC.
/s/ Xxxx Xxxxx
--------------------------------
By: Xxxx Xxxxx
Title: President
/s/ Xxxx Xxxxx
--------------------------------
By: Xxxx Xxxxx
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