SWIFTY CARWASH & QUIK-LUBE, INC.
EMPLOYMENT AGREEMENT
Employment Agreement executed on April 6, 1998 (the "Agreement") by and
between Swifty Carwash & Quik-Lube, Inc. (the "Company"), a Florida corporation
having its principal place of business at 00000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx
00000; and Xxxxxxx X. Xxxxxxxx (the "Employee") whose address is 000 X.
Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000. This agreement commemorates the
agreement reached prior to the date hereof and is executed at this time to
memorialize that prior agreement and to minimize the possibility of any
misunderstanding. The undersigned, Xxxxxx X. Xxxxxx, President, represents and
warrants that she has the full authority to enter into this agreement on behalf
of the Company and to obligate the Company to the terms hereof, and that she has
obtained proper authorization of the board of directors of the Company in
connection therewith.
BACKGROUND INFORMATION
The Company wishes to secure the employment services of the Employee
for a definite period of time and upon the particular terms and conditions
hereinafter set forth. The Employee is willing to be so employed. Accordingly,
the parties agree as follows:
OPERATIVE PROVISIONS
1. Employment and Terms. The Company hereby employs Employee and the
latter accepts employment by the Company for the period commencing with the
inception of the corporation (the "Commencement Date") and expiring April 6,
2001 (the "Initial Term"), which employment shall be automatically extended for
unlimited successive one year periods (each a "Successor Term") unless it is
terminated during the pendency of any such term, whether Initial or Successor,
by the occurrence of one of the events described in Section 8, hereof, or at the
end of any such term by one party furnishing the other with written notice, at
least 60 days prior to the expiration of such term, of an intent to terminate
this Agreement upon the expiration of such term.
2. Duties. During the term of this Agreement, whether Initial or
Successor, the Employee shall render to the Company services described in
Exhibit "A", and shall perform such other duties as may be agreed upon between
the Company and Employee. During such period, the Employee shall use his best
efforts to promote the interests and reputation of the Company. Hours of service
to the Company during the term of this Agreement shall be as determined by
agreement between the Company and Employee.
3. Compensation. For the services to be rendered by the Employee under
this Agreement, the Employment shall receive compensation in amounts determined
from time to time by the Company's Board of Directors.
4. Reimbursement of Expenses. The Employee shall be reimbursed by the
Company for all normal and reasonable expenses necessarily incurred by him in
the performance of his obligations hereunder, subject to such reasonable
substantiation requirements as may be imposed by the Company.
5. Proprietary Information. During or after the expiration of his term
of employment with the Company, the Employee shall not communicate or divulge
to, or use for the benefit of, any individual, association, partnership, trust,
corporation or other entity except the Company, any proprietary information of
the Company received by the Employee by virtue of such employment, without first
being in receipt of the Company's written consent to do so. The term proprietary
information shall include, but not be limited to, the Company's prospective site
list, information or research concerning the carwash or oil change industries,
Company personnel or financial information and all financial or business
information relating to the Company's operations. This paragraph relates to all
written documentation related tot he Company, whether furnished to him by the
Company or compiled by him in connection with his duties. It is expressly
understood and agreed that all such information is the property of the Company
and must be immediately returned to the Company upon notice of termination
either by the Company or by the Employee. It is further understood and agreed
that non-disclosure also applies to information known to the Employee but not
reduced to written or recorded form.
6. Restrictive Covenant.
a. Scope of Covenant. The Employee shall not, within any state
within which the Company is actively engaged in the conduct of its business,
during the term of this Agreement and the two year period following termination
of such employment, for any reason, engage or become interested in, directly or
indirectly, as owner, shareholder, partner, co-venturer, director, officer,
employee, agent, consultant or otherwise, any activity which is then engaged in
by the Company, nor, during the term of this Agreement and the two year
post-termination period, employ or attempt to employ any employee or independent
contractor of the Company, or otherwise encourage or attempt to encourage any
employee or independent contractor of the Company to leave the Company's employ.
b. Divisibility of Covenant Period. If any portion of the
restrictive covenant contained herein is held to be unreasonable, arbitrary or
against public policy, each covenant shall be considered divisible both as to
time and geographic area, such that each month within the specified period shall
be deemed a separate period of time and each state shall be deemed a separate
geographical area, resulting in an intended requirement that the longest lesser
time and largest lesser geographical area determined not to be unreasonable,
arbitrary or against public policy shall remain effective and be specifically
enforceable against the Employee.
c. Covenant Independent. Each restrictive covenant on the part
of the Employee set forth in this Agreement shall be construed as a covenant
independent of any other covenant or provision of this Agreement or any other
agreement which the Employee may have, whether fully performed or executory, and
the existence of any claim or cause of action by the Employee against the
Company, whether predicated upon another covenant or provision of this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of any other covenant.
d. Court Proceedings. In any action or proceeding by the
Company relating to or involving the enforcement of this covenant, the Employee
hereby waives any and all right to a trial by jury with respect to the action,
proceeding, or other litigation resulting from or involving the enforcement of
this covenant. Further, in any action or proceeding by the Company to obtain a
temporary restraining order and/or preliminary injunction, the Employee hereby
agrees to waive the necessity of the Company posting an injunction bond in order
to obtain a temporary restraining order and/or motion for preliminary injunction
be granted in whole or in part and should the Company be ultimately unsuccessful
in obtaining a permanent injunction to enforce the covenant, the Employee hereby
waives any and all rights the Employee may have against the Company for any
injuries or damages, including consequential damages, sustained by the Employee
and arising directly or indirectly from the issuance of the temporary
restraining order and/or preliminary injunction.
e. Extension of Covenant Period. The period of time during
which the Employee is prohibited from engaging in the practices identified in
6(a) above shall be extended by any length of time during which the Employee is
in breach of such covenants.
f. Survival of Covenants. All restrictive covenants contained
in this Agreement shall survive the termination of this Agreement.
7. Remedies for Breach of Employee's Obligations. The parties agree
that the services of the Employee are of a personal, specific, unique and
extraordinary character and cannot be readily replaced by the Company. They
further agree that in the course of performing his services, the Employee will
have access to various types of proprietary information of the Company, which,
if released to others or used by the Employee other than for the benefit of the
Company, in either case without the Company's consent, could cause the Company
to suffer irreparable injury. Therefore, the obligations of the Employee
established under ss.ss.5 and 6 hereof shall be enforceable both at law and in
equity, by injunction, specific performance, damages or other remedy; and the
right of the Company to obtain any such remedy shall be cumulative and not
alternative and shall not be exhausted by any one or more uses thereof.
8. Termination of Employment.
a. Death. The Employee's employment hereunder shall terminate
in the event of the Employee's death. Except for any salary and benefits
accrued, vested and unpaid as of the date of any such termination and except for
any benefits to which the Employee or his heirs or personal representatives may
be entitled under and in accordance with the terms of any employee benefit plan,
policy or program maintained by the Company, the Company shall be under no
further obligation hereunder to the Employee or to his heirs or personal
representatives, and the Employee or his heirs or personal representative no
longer shall be entitled to receive any payments or any other rights or benefits
under this Agreement.
b. Disability. The Company may terminate the Employee's
employment hereunder for disability if a physician selected by the Company
determines that the Employee is substantially unable to render to the Company
services of the character contemplated by Section 2 of this Agreement, by reason
of a physical or mental illness or other condition, for more that 90 consecutive
days or for shorter aggregating more than 120 days in any period of 12
consecutive months (excluding in each case days on which the Employee shall be
on vacation). In the event of such disability, the Employee shall be entitled to
receive any salary and benefits accrued, vested and unpaid as of the date of any
such termination and any benefits to which the Employee may be entitled under
and in accordance with the terms of any employee benefit plan, policy or program
maintained by the Company; and upon the Employee's receipt of such salary and
benefits the Company shall be under no further obligation hereunder to the
Employee and the Employee no longer shall be entitled to receive any payments or
any other rights or benefits under this Agreement.
c. Termination by the Company or Employee. The Company may
terminate his employment hereunder at any time by giving the Employee 10 days
prior written notice of such termination. The Employee may at any time terminate
the Employee's employment hereunder at any time by giving the Company 10 days
prior written notice of such termination (the "Termination Notice").
9. Indebtedness of Employee. If, during the course of his employment,
Employee becomes indebted to the Company for any reason, the Company shall, if
it so elects, have the right to set-off and to collect any sums due it from the
Employee out of any amounts which it may owe to the Employee for unpaid
compensation. In the event that this Agreement terminated for any reason, all
sums owed by the Employee to the Company shall become immediately due and
payable.
10. Indemnification of Employee. The Company agrees to indemnify and
hold harmless the Employee against and in respect of all damages, including any
claim, action, demand, loss, cost, expense, liability (joint or several),
penalty, and other damage, including without limitation counsel fees and other
costs and expenses reasonably incurred in investigation or in attempting to
avoid same or oppose imposition thereof or in enforcing this indemnity,
resulting to the Employee as a result of the Employee being an officer or
employee of the Company to the fullest extent permitted by Fla. Stat.
ss.607.0850, or its successor.
11. Miscellaneous Provisions.
a. Nonassignability: Neither this agreement nor any right or
interest hereunder shall be assignable by the Employee.
b. Enforceability: If any term or condition or this agreement
shall be invalid or unenforceable to any extent or in any application, then the
remainder of this agreement, and such term or condition except to such extent or
in such application, shall not be affected thereby and each and every term and
condition of this agreement shall be valid and enforced to the fullest extent
and in the broadest application permitted by law.
c. Notice: All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be made by: (i) certified mail, return receipt requested; (ii) Federal Express,
Express Mail, or similar overnight delivery or courier service; or (iii)
delivery (in person or by facsimile or similar telecommunication transmission)
to the party to whom it is to be given, to the address appearing elsewhere in
this Agreement or to such other address as any party hereto may have designated
by written notice forwarded to the other party in accordance with the provisions
of this Section 11(c). Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice given by other means permitted by this Section 11(c) shall
be deemed given at the time of receipt thereof.
d. Application of Florida Law: This agreement, and the
application or interpretation thereof, shall be governed exclusively by its
terms and by the laws of the State of Florida. Venue shall be deemed located in
Hillsborough County, Florida.
e. Counterparts: This agreement may be executed by any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
f. Binding Effect: Each of the provisions and agreements
herein contained shall be binding upon and enure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns of the
respective parties hereto.
g. Legal Fees and Costs: If a legal action is initiated by any
party to this Agreement against another, arising out of or relating to the
alleged performance or non-performance of any right or obligation established
hereunder, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by each successful party or his or its legal
counsel in investigating, preparing for, prosecuting, defending against, or
providing evidence, producing documents or taking any other action in respect
of, such action shall be the joint and several obligation of and shall be paid
or reimbursed by the unsuccessful party(ies).
h. Jurisdiction: The parties agree that, irrespective of any
wording that might be construed to be in conflict with this paragraph, this
agreement is one for performance in Florida. The parties to this agreement agree
that they waive any objection, constitutional, statutory or otherwise, to a
Florida court's taking jurisdiction of any dispute between them. By entering
into this agreement, the parties, and each of them understand that they might be
called upon to answer a claim asserted in a Florida court.
In witness whereof, the parties have executed this Agreement the date
first set forth above.
SWIFTY CARWASH & QUIK-LUBE, INC.
By: _________________________________
Xxxxxx X. Xxxxxx, President
EMPLOYEE
By: _________________________________
Xxxxxxx X. Xxxxxxxx
AGREEMENT REGARDING ISSUING OF STOCK
In accordance with understandings and agreements by and between Swifty
Carwash & Quik-Lube, Inc. (the "Company"), and Xxxxxxx X. Xxxxxxxx (the
"Employee") and in consideration of services and assistance rendered to the
Company by Employee in the beginning stages of the formation of the Company and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company agrees to promptly issue to Employee as his property
(or his designee as indicated below) One Million Four Hundred Thousand
(1,400,000) shares of common stock of Swifty Carwash & Quik-Lube, Inc. In
accordance with Employee's instructions, this stock shall be registered in the
names of:
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx, tenants by the entirety
The Company and Employee agrees that they shall value this stock for tax
purposes at .0483 cents per share or at total of $67,620.00 for the entire
1,400,000 shares and they agree that this is a fair and just valuation. To the
extent that such shares may not have been previously issued and/or delivered,
the Company shall promptly issue such shares and the Company shall promptly
deliver those shares to Employee. This agreement commemorates the agreement
reached prior to the date hereof and is executed at this time as confirmation of
that prior agreement. The undersigned, Xxxxxx X. Xxxxxx, President, represents
and warrants that she has the full authority to enter into this agreement on
behalf of the Company and to obligate the Company to the terms hereof, and that
she has obtained proper authorization of the board of directors of the Company
in connection therewith.
SWIFTY CARWASH & QUIK-LUBE, INC.
By: ________________________________
Xxxxxx X. Xxxxxx, President
EMPLOYEE
By: _________________________________
Xxxxxxx X. Xxxxxxxx
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
