Exhibit 10.3
KAIRE INTERNATIONAL INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered effective into August 11, 1997, between
Kaire International, Inc., a Delaware corporation having its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("KAIRE") and Xxxxxx X.
Xxxxx (the "Employee") and is effective on the date it is signed by the last
signatory. KAIRE and the Employee are referred to in this Agreement together as
the "Parties", "we", "our", "us", or individually as "Party."
In consideration of our rights and obligations set out below, KAIRE
and the Employee agree as follows:
A. EMPLOYMENT. KAIRE employs the Employee for the position and to provide the
services described in paragraph C. below, subject to the terms, covenants and
conditions of this Agreement.
B. TERMS OF EMPLOYMENT. The Employee's employment under this agreement will
begin on August 11, 1997 and if not otherwise terminated in this agreement,
Employee shall be permitted to cease active employment effective August 31,1998
in order to permit Employee to enroll in graduate school for a period of 15
months.
1. Employment AT WILL. The Employee will at all times while this
Agreement is in effect be an AT WILL employee, so, subject to the provisions of
paragraph L., if applicable, either Party may terminate this Agreement at any
time, with, or without cause, and with or without prior notice. Any provision
for payment of salary or other compensation on an annual basis is for accounting
purposes only and does not mean the Employee will be employed for any term. Upon
any termination of Employee, KAIRE will remain liable to pay the compensation as
described in Paragraph E below.
The Employee further understands and agrees each of the following is
an express condition of this Agreement and that KAIRE may terminate the
Employee's employment immediately without prior notice if the Employee fails to
satisfy any of these conditions:
2. Employee Provided True Information. Understanding KAIRE relied on
the Employee to be truthful, each fact the Employee provided or authorized
anyone else to provide as part of the Employee's application was true, and the
Employee provided KAIRE, with complete information it needed to consider the
Employee's application.
3. Drug Screening Medical Examination. To help ensure a safe,
healthy workplace, KAIRE has or may implement policies for employee drug
screening testing and medical examinations. Subject to such policies and
applicable law, failing or refusing to take a drug screening test or medical
examination may result in termination.
C. EMPLOYEE'S DUTIES. The Employee will provide the following services under
this Agreement, for the position of Marketing Director as per the attached job
description, and the Employee will have such further or other duties as KAIRE
assigns to the Employee from time to time.
1. Full Efforts for KAIRE. The Employee should devote the Employee's
full work time to the Employee's employment with KAIRE and may not hold any jobs
outside the Employee's employment with KAIRE or accept from any other company or
individual any pay, salary, retainer, commission, consulting fee or any other
fee arrangement or remuneration for services without full disclosure to and
prior written approval from KAIRE's Chief Executive Officer.
2. Compliance with Policies and Standards. The Employee services
performed for KAIRE and its Employees, Associates, customers and others will in
all events be consistent with KAIRE's policies, standards, rules and procedures.
D. OTHER, SEPARATE AGREEMENTS BETWEEN THE PARTIES.
1. No Competition with KAIRE and Preservation of KAIRE's Confidential
Information. The Employee will not compete with KAIRE and will preserve KAIRE's
confidential information including KAIRE Associate and customer records, as
further specified in the Parties' Noncompetition, Confidentiality and Work Made
for Hire Agreement, dated August 18, 1997.
2. Work Made for Hire. Any work, invention, process, product, idea or
concept (whether or not patentable or protectable by copyright) the Employee
conceives or develops, in whole or in part, during work hours for KAIRE or at
any time using KAIRE's premises or any of its equipment or supplies will be work
made for hire owned solely by KAIRE, as further specified in the Parties'
Noncompetition, Confidentiality and Work Made for Hire Agreement, dated August
18, 1997.
E. COMPENSATION.
1. Salary. For all services the Employee provides under this Agreement,
KAIRE will pay the Employee salary as follows:
2. Payment of Salary. The Employee's annual salary of $125,000.00 will be
paid in twenty-six (26) payments every two (2) weeks in the amount of $ 4,807.69
beginning August 22, 1997 and thereafter each on the Friday of each such week,
with the initial payment period to be adjusted for KAIRE's regular pay periods
for employees, or if the Friday is a holiday, on the last workday before that
Friday. All compensation paid to the Employee is subject to employer
withholdings, e.g., for FICA, Medicare/Medicaid, any applicable occupational
privilege tax, and any court ordered deductions such as garnishments. There will
be no salary advances, unless otherwise agreed in writing by KAIRE.
3. Expenses. KAIRE will reimburse the Employee for reasonable expenses
incurred on KAIRE's behalf for which KAIRE has given prior written authority and
for which the Employee provides appropriate receipts or other evidence of
payment.
4. Educational Expense Reimbursement. KAIRE agrees to reimburse Employee
for up to $62,500.00 of documented educational tuition and educational expenses
incurred by Employee while Employee attends graduate school beginning September
1, 1998 through November 1,1999. KAIRE shall establish an escrow account in the
amount of $62,500.00 which shall be disbursed as reimbursement to Employee at
the following times: (a) $22,500.00 on or before September 1,1998, (b)
$20,000.00 on or before January 1,1999, and (c) $20,000.00 on or before July 1,
1999. At least 15 days prior to KAIRE's monthly reimbursement, Employee shall
submit written documentation of the educational expenses paid for by Employee.
KAIRE shall create the escrow account, when KAIRE receives proceeds from a
successful sale of its stock in an Initial Public Offering which is now
anticipated to be in December 1997. KAIRE shall be obligated to pay such
reimbursable educational funds as set forth regardless of whether KAIRE
establishes an escrow account. The obligation of KAIRE under this paragraph
shall survive any termination of Employee's services under this Agreement except
for Employee's voluntary resignation from employment or Employee's death or
disability or the matters set forth in Paragraph L.1.a.b. or c.
5. Shares of Stock of KAIRE. As consideration for Employee entering into
this agreement, KAIRE shall issue to Employee, 50,000 shares of KAIRE common
stock at any time prior to KAIRE's Initial Public Offering. The current value of
such shares is
$500.00 and shall be deemed to be compensation to Employee and Employee shall be
responsible for any income tax and related employment expenses except for
KAIRE's employer related F.I.C.A. and Medicare/Medicaid obligation.
F. VOLUNTARY BENEFITS.
1. Employee's Eligibility. While Employee is providing full-time
employment services to KAIRE, the Employee will be eligible to participate in
any insurance, pension, profit sharing or other voluntary employee benefit KAIRE
chooses, from time to time, to offer its other comparable employees, subject to
the participation standards and other terms of any such voluntary benefit. KAIRE
has no obligation to adopt or to continue any voluntary benefit.
2. Possible Life or Disability Insurance for KAIRE's Sole Benefit. The
Employee understands that at anytime after this Agreement is executed, KAIRE may
in its sole discretion and solely for its own benefit apply for life and/or
disability insurance on the Employee in such amounts and in such form or forms
as KAIRE may choose. Subject to any applicable law, the Employee agrees to
submit to such medical examinations, to supply such information and to execute
such releases and other documents as the insurance company or companies to which
KAIRE has applied may reasonably and lawfully require as a condition of issuing,
renewing or modifying any such policy. KAIRE will maintain in separate,
confidential files any information about the Employee's health and abilities it
receives as part of any such application or policy.
3. Vacations. Holidays and Leaves. Employee shall have the right to use 10
vacation days during the time period from inception of this agreement and ending
August 31,1998. No vacation time shall accrue while Employee is attending
graduate school.
G. COLLECTION OF ACCOUNTS AND COMMISSIONS. KAIRE may in its sole discretion
waive, release, compromise or decline to collect any charge, xxxx, account,
commission or other payable owing from any of its customers, clients an other
sources of revenue, including any charge, etc. arising from services the
Employee performed or products the Employee produced or that would, if
collected, be payable to the Employee as commission or other compensation.
H. FEES, PAYMENTS AND COMMISSIONS FROM CLIENTS, CUSTOMERS AND THIRD PARTIES. All
fees, payments, commissions, premiums, compensation or other things of value the
Employee receives or may otherwise have a right to receive directly from KAIRE's
Associates, customers and third parties as a result services the Employee
provides or products the Employee produces under this Agreement belong to and
will immediately be paid and delivered to KAIRE. The Employee will hold any such
funds and Employee receives as KAIRE's fiduciary, and the Employee will take all
steps KAIRE reasonably requests to cause any Associate, customer, or third party
who is holding or who owes any such funds promptly to pay them to KAIRE.
I. SUPPLIES, EQUIPMENT AND FACILITIES.
1. By KAIRE. KAIRE will provide the Employee within a reasonable time with
such supplies, equipment, facilities and services as are reasonably necessary
for the performance of the Employee's duties.
2. No Ownership of KAIRE'S, Equipment or Facilities. KAIRE's provision of
any supplies, equipment or facilities to the Employee will not give the Employee
any ownership interest in any such supplies, equipment or facilities and will
not obligate KAIRE to continue providing supplies, equipment and facilities. The
Employee's use of KAIRE's property and equipment will be consistent with the
policy regarding Company Equipment in KAIRE's personnel policies not in effect
or as KAIRE may modify later.
J. NO AUTHORITY TO OBLIGATE KAIRE OR TO INCUR, CREDIT. The Employee is not an
officer of KAIRE, may not incur any credit for KAIRE and has not authority to
obligate KAIRE to anything to accept orders, payments and supporting information
from existing and prospective Associates and customers on behalf of KAIRE and to
transmit them to KAIRE or to its suppliers.
K. DEATH OR DISABILITY DURING EMPLOYMENT. To the extent permitted by law, if the
Employee dies or becomes disabled while an employee of KAIRE, this Agreement
will automatically terminate and KAIRE will pay to the Employee's estate (in the
event of death) or to the Employee (in the event of disability) the compensation
that otherwise would be payable to the Employee for the Employee's services
rendered before the Employee's death or disability, less any obligations the
Employee then owes KAIRE.
The Employee will be considered "Disabled" under this Agreement if the Employee
is unable with reasonable accommodation to perform the essential requirements of
the Employee's employment for KAIRE, for a period that exceeds ninety (90)
consecutive calendar days. If the parties are unable to agree with respect to
any question about a Disability including, but not limited to: (i) whether the
Employee is Disabled, or (ii) the date which the Disability of the Employee
began, then such dispute shall be determined by arbitration under our separate
Arbitration Agreement. Until the date which a Disability occurs, the Employee's
compensation and status as an employee under this Agreement will continue.
L. TERMINATION. This Agreement may be terminated under paragraphs B, K, N or
under this paragraph.
1. Termination With Prior Notice by Either Party. In addition to
termination under paragraphs B, L.1, or N, KAIRE may terminate this Agreement
immediately without prior notice on the occurrence of any one of the following:
a. If the Employee neglects any of the Employee's duties,
b. If the Employee breaches any provision of this Agreement or
of the Parties' Noncompetition and Confidentiality and Work Made for
Hire Agreement.
c. If in representing KAIRE or in providing services to KAIRE,
the Employee commits an act of fraud, dishonesty or any other act of
negligent, reckless or willful misconduct in regard to Associates,
customers, employees, shareholders or third parties;
d. If KAIRE decides to sell or otherwise to dispose of
substantially all of KAIRE's assets, or to distribute its assets to
stockholders in liquidation, or otherwise to discontinue KAIRE's
business;
e. If any circumstance beyond KAIRE's control prevents it from
operating its business or otherwise hinders, delays or prevents
KAIRE from receiving income or increases its overhead to an extent
that causes KAIRE reasonably to decide to reduce, modify, suspend or
cease its business.
2. Survival of KAIRE's obligation under Paragraph E.4. The termination of
Employee under the provisions of Paragraph L.1.d. or e. shall not affect Kaire's
obligations under Paragraph E.4. above.
M. FINAL SALARY. Subject to the provisions of paragraph E, the Employee's final
paycheck will be reduced by the amount of any lawful charge or indebtedness the
Employee owes KAIRE.
N. CONFIDENTIALITY OF AGREEMENT. The Employee will not disclose any terms of
this Agreement to any person with the exception of accountants or attorneys whom
the Employee may consult during the negotiation or performance of this
Agreement, or as may be required by law. The Employee acknowledges that this is
a material covenant of this Agreement, a breach of which will be cause for
immediate termination without prior notice.
O. ASSIGNMENT OF RIGHTS AND OBLIGATIONS. KAIRE may assign its rights or
obligations under this Agreement at anytime after the effective date without
prior notice to the Employee; the Employee may assign the Employee's rights or
obligations under this Agreement only with KAIRE's prior written agreement.
P. INTERPRETATION AND ENFORCEMENT. This Agreement expresses our entire
understanding regarding its subject matter. The only way this Agreement may be
amended, changed or waived will be through a new written agreement KAIRE signs.
This Agreement is enforceable by and against each Party and anyone else who has
or who obtains rights under this Agreement from either Party. This Agreement
will be interpreted and enforced under Colorado law. No part of this Agreement
should be construed against either Party on the basis of authorship. Any
unenforceable provision of this Agreement will be modified to the extent
necessary to make it enforceable or, if that is not possible, will be severed
from this Agreement, and the remainder of this Agreement will be enforced to the
fullest extent possible. Any enforcement involving confidential information,
proprietary information or trade secrets shall include injunctive remedies
including those set forth in COLORADO REVISED STATUTES ss. 7-74-101, et seq.
X. XXXXX'X OPTION TO ARBITRATE DISPUTES. Under a separate arbitration agreement
between us dated August 18,1997, the parties have agreed KAIRE has the option to
arbitrate any dispute between us we cannot resolve ourselves, which includes any
dispute about any aspect of this Agreement.
R. ACKNOWLEDGMENTS. Each Party has read and considered this Agreement carefully,
believe, that Party understands each provision, and has conferred or has had the
opportunity to confer with the Party's own attorney before executing this
Agreement.
IN WITNESS OF OUR AGREEMENTS, KAIRE and the Employee have executed
this Agreement on the date(s) indicated below.
KAIRE INTERNATIONAL, INC. EMPLOYEE
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
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Title: CEO Date: 12/3/97
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Date: 3 DEC 1997
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