Exhibit 10.6
EMPLOYMENT AGREEMENT
This Agreement made and entered into, effective February 3 , 2003, supersedes
and cancels all prior agreements , by and between:
Health Express USA., Inc. a Florida corporation ( the "Company" ),
and
Xxxxxxx Xxxxx ("Employee"), an individual residing at 000 Xxxxxxxx
Xxxx, Xxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, the Employee is employed by and is key executive of the Company; and
WHEREAS, the Company desires to continue to employ the Employee, and the
Employee is willing to accept such employment, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Employment.
1.1 The Company hereby employs the Employee as its President, on the
terms hereinafter set forth, after a 90 day probationary period, for a period of
Five (5) years from the date of this Agreement, and the Employee hereby accepts
such employment. Notwithstanding the foregoing, the five (5) year term of this
Agreement shall not commence until the expiration of a probationary period of 90
days beginning on the date that Employee commences his duties as described below
and terminating on the 90th day following such date (the "Probationary Period").
During the Probationary Period, the Company may terminate Employee for the
reasons set forth in section (11. Termination), of this Agreement. Upon
termination, this Agreement will be void and of no further force or effect.
1.2 Subsidiary Corporations. The Employee shall also serve as President
of each of the Company's following subsidiary corporations: Healthy Bites Grill,
Inc., a Florida corporation, Healthy Bites Grill of Boca, Inc., and Health
Express Franchise Company, a Florida corporation.
2. Duties. The Employee will render services in such executive, supervisory,
management and general administrative capacities as the Board of Directors of
the Company shall from time to time determine. Without limiting the foregoing,
the Employee will act as President of the Company and, in that capacity, will be
responsible for overseeing the operations of the
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Company and will perform such duties, and exercise such authority, as are
customarily exercised by such an officer.
The restaurant of the Company, which is located in Boca Raton Florida and the
Corporate office located in Deerfield Bch., Florida, will constitute the
Employee's base of operations. The Employee agrees, however, to render any
required services away from the restaurant and Corporate office on a temporary
basis and to travel wherever the Company may reasonably require. In connection
with all such trips, the Employee will be advanced, or reimbursed for, all
reasonable travel and living expenses; provided that he submits appropriate
documentation for such expenses satisfactory to the Company.
3. Exclusivity. The Employee will devote all of his working time to performing
his duties under this Agreement, and during his employment with the company the
Employee will not
( i ) act for his own account in any manner which is
competitive with any of the business of the Company or, ( ii ) invest or have
any financial interest, direct or indirect, in any business competitive with any
of the business of the Company.
4. Confidentiality.
4.1 The Employee agrees that during the term of his employment he will
not, in any manner, either directly or indirectly, divulge, disclose or use,
except in the course of performing his duties and obligations to the Company
under this Agreement, any confidential information, trade secrets or both,
including but not limited to procedures, formulations, methods, systems,
documentation, facilities, policies, marketing, pricing, customer lists and
leads, and other information and know-how, all relating to, or useful in, the
Company's business and which the Company considers proprietary and maintains
confidential, or proprietary data of the Company which the Employee is aware of
or becomes aware of (collectively the " Confidential Information"), whether in
the course of performing his obligations under this Agreement or otherwise
through his relationship with the Company, its current or future subsidiaries or
affiliates, without the prior written consent of the Company. Any breach of the
terms of this Section 4.1 is a material breach of this Agreement.
4.2 All equipment, documents, memoranda, reports, records, files,
materials, samples, books, correspondence, hard drives, disks, lists, other
written and graphic records, and the like (collectively, the "Materials"),
affecting or relating to the business of the Company or its subsidiaries and /or
affiliates, which the Employee shall prepare, use, construct, observe, possess
or control shall be and remain the Company's sole property or in the Company's
exclusive custody. Promptly upon termination of employment for any reason
whatsoever or otherwise upon request of any officer of the Company, the
Materials and all copies thereof in the custody or control of the Employee shall
be immediately delivered to the Company.
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5. Compensation.
5.1 Compensation. The Company will provide the following compensation
for services rendered to the Company by the Employee:
(i) Initial Salary. In full payment for the obligations to be
performed by the Employee during the term of this Agreement, the Company shall
pay the Employee a salary at an annual rate to the sum of Ninety Thousand
Dollars ($ 90,000).
(ii) Adjustment of Salary. As promptly as practicable after
the sale of Three (3) Healthy Bites Grill Franchises, the Employee's salary will
increase to an annual rate to the sum of One Hundred Ten Thousand Dollars ($
110,000).
Bonus: Ten Thousand Dollars ($10,000) upon sale of first
franchise. (one time only)
Option to participate in Company's group health benefits or
reimbursed for coverage already in existence with Employee.
(iii) Restricted shares of common stock of the Company granted
as follows:
Stock Bonus shall be limited to the following based upon the net
profitability achieved at Healthy Bites Grill of Boca as follows:
10,000 shares per reporting quarter for achieving profitability in that
quarter. Profitability is defined as any profit before taxes computed using
generally accepted accounting principles.
In addition to the above 10,000 shares per quarter, an additional
20,000 shares will be granted for achieving profitability for a full reporting
calendar year for Healthy Bites Grill of Boca.
Franchise Stock Bonus:
First 10 units only.
3,000 shares upon receipt of franchise fee
3,000 shares upon opening
3,000 shares upon 12 month anniversary of opening (one time only)
Subsequent units
1,000 shares upon receipt of franchise fee
1,000 shares upon opening
2,000 shares upon 12 month anniversary of opening (one time only)
(iv) Restricted Stock Options:
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After one year of employment and based on satisfactory review and
evaluation. Options for 400,000 restricted nonassessable and fully-paid shares
of stock described as follows: restricted shares of Common Stock of the Company,
par value $0.001, for an exercise period of five (5) years from the date of this
Agreement.
Subject to the terms of a stock option agreement the options shall be
exercisable at prices and pursuant to a schedule as follows:
Options for 200,000 shares @ $1.00 per share
Options for 200,000 shares @ $1.50 per share
5.2 Deductions. The Company will deduct and withhold from any
compensation payable to the Employee under this Agreement such amounts as the
Company is required to deduct and withhold by law.
6. Expenses. The Company will reimburse the Employee for all proper, normal and
reasonable expenses incurred by the Employee in performing the obligations under
this Agreement upon the Employee furnishing the company with satisfactory
evidence of such expenditures. The Employee will not incur any unusual or major
expenditures without the Company's prior written approval.
7. Benefits. The Employee's compensation and other rights and benefits under
this Agreement will not be suspended or terminated because the Employee is
absent from work due to illness, accident or other disability; but the Company
may deduct from the Employees salary under Section 4.1 any payment received by
the Employee under any disability insurance which the Company provides the
Employee.
8. Insurance. If the Company desires at any time or from time to time to apply
for, in its own name or otherwise, but at its expense, life, health, accident,
disability or other insurance covering the Employee, the Company may do so and
may take out such insurance for any sum that it deems desirable. The Employee
nevertheless will assist the Company in procuring the same by submitting from
time to time to the customary medical, physical and other examinations, and by
signing such applications, statements and other instruments as any reputable
insurer may require.
9. Uniqueness of Services. The Employee acknowledges that their services
hereunder are of a special, unique, unusual, extraordinary and intellectual
character, the loss of which cannot be reasonably or adequately compensated by
damages in an action at law. Accordingly, the Company will be entitled to
injunctive and other equitable relief to prevent or cure any breach or
threatened breach of this Agreement by the Employee.
10. Negative Covenants
10.1 The Employee will not, during or after the term of this Agreement,
disclose to any
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third person, or make use or take any personal advantage of, any confidential
information or any trade secret of any kind or nature obtained by him during the
term hereof or during their employment by the Company.
10.2 To the full extent permitted by law, the Employee will not, for a
period of one year following the termination of his employment with the Company
for any reason.
(i) attempt to cause any person, firm or corporation which is
a customer of or has contractual relationship with the Company at the time of
the termination of their employment to terminate such relationship with the
Company, and this provision shall apply regardless of whether such customer has
a valid contractual arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave
such employment;
(iii) engage any person who was an employee of the Company at
the time of the termination of their employment, or cause such person otherwise
to become associated with the Employee or with any other person, corporation,
partnership or other entity with which the Employee may thereafter become
associated;
10.3 The Employee acknowledges that the violation of any of the
provisions of this section will cause irreparable loss and harm to the Company
which cannot be reasonably or adequately compensated by damages in an action at
law and, accordingly, agrees that the Company will be entitled to injunctive and
other equitable relief to prevent or cure any breach or threatened breach
thereof.
11. Termination. This Agreement (i) shall automatically terminate upon the death
of Employee, (ii) may be terminated by the Company during the Probationary
Period or for the reasons set forth in (i) through (iv) below all of which shall
be for "Cause", and (iii) may be terminated at any time by Employee.
11.1 If either the Company or Employee desire to terminate the
Employee's employment by the Company then, in such event, the party causing such
termination shall provide a termination notice ( the "Termination Notice") to
the other party.
11.2 If this Agreement is terminated by the Company during the
Probationary Period or at any time during the term for Cause which shall
include:
(i) the Employee's failure or refusal to faithfully or
diligently perform the provisions of this Agreement or the usual and customary
duties of his employment as set forth herein or as prescribed by the Company's
Board of Directors or such officers of the Company as may be charged by the
Board of Directors with setting the responsibilities and duties for the position
for which the Employee has been employed by the Company;
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(ii) the Employee's acceptance (without having obtained the
prior written consent of the Company) of employment with any other company;
(iii) the Employee becoming (without having obtained the prior
written consent of the Company) a holder of (5%) of the issued and outstanding
voting securities of a competitor of the Company, a director of a competitor of
the Company, or an officer, agent, consultant or employee of another company;
(iv) the Employee's adjudication as being guilty of fraud,
dishonesty or other acts of misconduct in the rendering of services on behalf of
the Company by a court of competent jurisdiction, then the Company shall be
discharged from all of its obligations to the Employee under this Agreement upon
the payment to the Employee of all unpaid compensation up to and including the
date of the termination set forth in the Termination Notice pursuant to which
such termination shall occur.
11.3 In the event of illness or other incapacity of the Employee, which
such illness or other incapacity shall continue for a period of more than thirty
(30) days, the Company shall have the right, on ten (10) days written notice to
the Employee, to terminate this Agreement. In such event, the Company shall be
obligated to pay to the Employee his compensation up to the date of termination.
However, if prior to the date specified in such notice, the Employee's illness
or incapacity shall have terminated, and he shall have taken up and performed
his duties as required hereunder, the Employee shall be entitled to resume his
employment hereunder as though such notice had not been given.
11.4 In the event the Company does exercise its right of termination,
other than for "Cause", all obligations of the parties to this Agreement shall
cease. In the event of termination for "Cause", Employer shall pay Employee any
unpaid portion of his annual salary for the period up to the date of termination
and any accrued benefits up to the date of termination. Notwithstanding any
termination of this Agreement for any reason whatsoever, Employee's obligations
set forth in Sections 3, 4 and 10 herein shall survive such termination.
12. Governing Law; Remedies.
12.1 This Agreement has been executed in the State of Florida and shall
be governed by and construed in all respects in accordance with the law of the
State of Florida.
12.2 Except as otherwise expressly provided in this Agreement, any
dispute or claim arising under or with respect to this Agreement will be
resolved by arbitration in Fort Lauderdale, Florida, in accordance with the
Rules for Commercial Arbitration of the American Arbitration Association, before
a panel of three (3) arbitrators, one appointed by the Employee, one appointed
by the Company, and the third appointed by said Association. The decision or
award of a majority of the arbitrators shall be final and binding upon the
parties. Any arbitrary award may be entered as a judgment or order in any court
of competent jurisdiction.
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12.3 Notwithstanding the provisions for arbitration contained in this
Agreement the Company will be entitled to injunctive and other equitable relief
as provided in Sections 8 and 9.3 hereof and as any court may otherwise
determine appropriate; and the Employee agrees that it will not be a defense to
any request for such relief that the Company has an adequate remedy at law. For
purposes of any such proceeding the Company and the Employee submit to the
exclusive jurisdiction of the courts of the State of Florida located in the
County of Broward, State of Florida, and each agrees not to raise, and hereby
waives, any objection to or defense on the venue of any such court or on forum
non conveniens.
13. Indemnity. to the extent permitted by law, the Company will indemnify the
Employee against any claim or liability and will hold the Employee harmless from
and pay any expenses (including, without limitation, legal fees and court
costs), judgments, fines, penalties, settlements and other amounts arising out
of, or in connection with, any act or omission of the Employee performed or made
in good faith on behalf of the Company to pay the Employee's legal fees and
related charges of counsel during any period that the Company furnishes, at its
expense, counsel to defend the Employee; but any counsel furnished by the
Company must be reasonably satisfactory to the Employee.
14. Severability Of Provisions. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held invalid,
the remainder of this Agreement, and the application of such provision other
than to the extent it is held invalid, will not be invalidated or affected
thereby.
15. Waiver. No failure by either party to insist upon the strict performance of
any term or condition of this Agreement, or to exercise any right or remedy
available to it, will constitute a waiver of the same. No breach or default of
any provision of this Agreement will be waived, altered or modified, and neither
party may waive any of its rights, except by a written instrument executed by
that party. No waiver of any breach or default will affect or alter any term or
condition of this Agreement, and such term or condition will continue in full
force and effect with respect to any other than existing or subsequent breach or
default thereof.
16. Miscellaneous.
16.1 This Agreement may be amended only by an instrument in writing
signed by both the Company and the Employee.
16.2 This Agreement shall be binding upon the parties and their
respective successors and assigns. The Company may, without the Employee's
consent, transfer or assign any of its rights and obligations under this
Agreement to any corporation which, directly or indirectly, controls or is
controlled by the Company or is under common control with the Company, or to any
succeeding to all or a substantial portion of the Company's business and assets;
provided that the Company shall not be released from any of its obligations
under this Agreement, and provided further that any such transferee or assignee
agrees in writing to assume all the obligations of the Company hereunder. Except
as provided above, neither the Company nor the Employee may
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without the other's prior written consent, transfer or assign any of its or
their rights or obligations under this Agreement, and such transfer or
assignment or attempt thereat without such consent shall be null and void.
16.3 All notices under or in connection with this Agreement shall be in
writing and may be delivered personally or sent by mail, courier, fax or other
written means of communication to the parties at their addresses and fax numbers
set forth below or to such other addresses and fax numbers as to which notice is
given:
(a) if to the Company:
Health Express USA. Inc.
0000 Xxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx Xxx., XX. 00000
(b) if to the Employee:
Xxxxxxx Xxxxx
000 Xxxxxxxx Xxxx.
Xxxx Xxxxx, XX. 00000
Notice will be deemed on receipt.
16.4 Section headings are for purposes of convenient reference only and
will not affect the meaning or interpretation of any provision of this
Agreement.
This Agreement constitutes the entire agreement of the parties and
supersedes any and all prior agreements or understanding between them.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
HEALTH EXPRESS USA., INC.
By:---------------------------- Date: February 3, 2003
Xxxxxxx Xxxxx, CEO
By:
----------------------------- Date: February 3 , 2003
Xxxxxxx Xxxxx, Employee
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