Exhibit B
EMPLOYMENT AGREEMENT
AGREEMENT made the 18th day of January, 1996 (effective,
however, only on the Effective Date below set forth) between HEALTH WELLNESS
NATIONWIDE CORP. (the "Company"), a Delaware corporation having an office at
2001 West Sample Road, Suite 318, Pompano Beach, Florida 33064, and SAMANTHA
HAIMES (the "Employee"), residing at 7356 Mahogany Court, Boca Raton, Florida.
W I T N E S S E T H:
The Employee is president of Sam Lilly Corp., a Florida
Corporation ("Seller"). The Company and Seller are entering into an agreement of
even date (the "Agreement and Plan of Reorganization") pursuant to which the
Company will acquire the business and assets of Seller. The Company desires to
employ the Employee following such acquisition, and the Employee is willing to
be so employed, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, with the foregoing recitals deemed
incorporated hereinafter by reference and mae a part hereof, the parties agree
as follows:
1. Employment.
1.1 Term. The Company employs the Employee, and the Employee
accepts employment with the Company, in the position and with the duties
hereinafter set forth, for a term of three (3) years commencing on the Effective
Date (as defined in paragraph 1.2 below) unless sooner terminated as hereinbelow
provided.
1.2 Effective Date. The "Effective Date" as used in this
Agreement shall be deemed to be January 22, 1996.
2. Duties.
2.1 General. The Employee shall be the Managing Director of a
division of the Company which operates complementary medical clinics. Employees
shall assist in establishing the first clinic at 7300 North Federal Highway,
Boca Raton, Florida ("First Clinic") and shall assist in the managements of
additional clinics; shall perform services of the same general type as
heretofore performed by her for Seller; shall manage the operations of a Health
Wellness Center at the office formerly operated by Seller, shall manage and
develop other Health Wellness Centers, and shall perform such other services
consistent with her position (including, without limitation, services for
parents, subsidiaries, divisions and affiliates of the Company) as may from time
to time be assigned to her by the Company's Board of Directors or executive
officers.
2.2 Performance. During the term of this Agreement and Plan of
Reorganization, the Employee shall devote her full time, best efforts and
attention to the business, operations and affairs of the Company and the
performance of her duties hereunder and, without the Company's consent, shall
not engage in any other business activities. Notwithstanding the foregoing, the
employee shall have the right to continue her involvement in Wellness
International Network Limited (independent MKK Distributor), Fitness For You,
Formula Technology and all endorsements, provided such business does not
conflict with her duties hereunder.
2.3 Employee's Representations. Employee represents and
warrants to and agrees with Company that:
(a) Neither the execution nor performance by the
Employee of this Agreement and Plan of Reorganization is prohibited by
or constitutes or will constitute, directly or indirectly, a breach or
violation of, or will be adversely affected by, any written or other
agreement to which Employee is or has been a party.
(b) Neither Employee nor any business or entity in
which she has any interest or form which she receives any payments has,
directly or indirectly, any interest of any kind in or is entitled to
receive, and neither the Employee nor any such business or entity shall
accept, form any person any payments of any kind on account of any
services performed by the Employee therefore subsequent to the
Effective Date. In addition to any of its other rights and remedies,
the Company shall be entitled to receive (and shall also have the right
to withhold from any payments to Employee under this Agreement and Plan
of Reorganization) all amounts paid or payable to Employee or any such
other business or entity in breach or violation of this paragraph.
(c) Employee shall indemnify and hold the Company
free and harmless from and against and shall reimburse it for any and
all liabilities, damages, losses,judgments, costs and expenses
(including reasonable counsel fees and other reasonable out-of-pocket
expenses) arising out of or resulting from any claim or action by any
third party against the Company which constitutes, and the provisions
of this 2.3(c) are limited to, a breach or default by the Employee of
or under 2.3(a) and 2.3(b) above.
3. Compensation and Related Matters.
3.1 Base Salary. As Base Salary, Employee shall be paid Sixty
Five percent (65%) of the Executive Salary Pool. The Executive Salary Pool shall
be Forty Six and 76/100 percent (46.76%) of the Company's Gross Revenue for the
prior fiscal year. Gross Revenue shall be computed by the Company's auditors
within thirty days after the end of the prior fiscal year and shall not include
revenue received from Rejuvenation Unlimited of Florida, Inc. Notwithstanding
the foregoing, in the event the Executive Salary Pool exceeds $550,000, the base
salary shall not be increased, but Employee shall receive Additional
Compensation pursuant to the formula set forth in Paragraph 3.2 hereinafter.
3.2 Additional Compensation. As Additional Compensation,
Employee shall be entitled to receive ten percent (10%) of the increase of Gross
Revenues of the First Clinic from year to year as long as Employee is employed.
The determination of Gross Revenue shall be made by the Company's auditors in
accordance with paragraph 3.1. In addition, throughout the term of her
employment, Employee shall receive five percent (5%) of the increase in
aggregate Gross Revenues form year to year of all Additional Clinics opened
during the term of her employment and for five years after that employment is
terminated unless it is terminated for cause.
3.3 Stock Options. Employee shall receive Ten Thousand
(10,000) Employee stock options for completion of each year hereunder. In
addition, Employee shall receive Twenty Thousand (20,000) Employee stock options
for each new Health Wellness Center opened during the term of this Agreement.
3.4 Expenses. With the prior approval of the Company, the
Employee shall be entitled to reimbursement for all travel and other business
expenses incurred in the performance of Employee's duties upon submission of
appropriate vouchers and other supporting data.
3.5 Benefits. Employee shall be entitled to (i) participate in
all general pension, profit-sharing, bonus, life, medical and other insurance,
disability and other employee benefit plans and programs at any time in effect
for executive employees of Company, provided, however, that nothing herein shall
obligate the Company to establish or maintain any employee benefit plan or
program, whether of the type referred to in this clause (i) or otherwise, and
(ii) holidays, vacations, and automobile reimbursement in accordance with the
Company's policy for executive employees.
4. Termination of Employment; Disability.
4.1 Termination.
(a) Should Employee's employment be terminated either
by the Company for any of the reasons or for causes set forth in 4.1(b)
below, or by Employee voluntarily, Employee's
compensation under this Agreement and Plan of Reorganization shall end
on the effective date of such termination and the Company shall have no
obligation to pay Employee the payment provided for in subparagraph (B)
of 4.1 above. In the event of Employee's death, the salary payable
hereunder shall be paid to Employee's Estate throughout the term of
this Agreement.
(b) The "reasons or causes" for Company's termination
of Employee's employment referred to in 4.2(a) above shall mean and
include only the following, provided the Employee is given written
notice thereof:
(i) theft or embezzlement by Employee from,
or common law fraud committed by Employee against, the Company
(ii) commission by the Employee of any act
which, if successfully prosecuted by the appropriate
authorities, would constitute a felony under state or federal
law;
(iii) material breach by the Employee of
any of her obligations under paragraphs 5.1 through 5.3 below;
(iv) material breach by the Employee of any
other obligation under this Agreement and Plan of
Reorganization not cured within ten days after written notice
thereof from the Company to the Employee; or
(v) material breach of representation and
warranty under the Asset Purchase Agreement.
If Employee does not notify Company in writing within 30 days after
receipt of the aforesaid written notice of the reason or cause for
termination that the Employee disputes the Company's determination of
such reason or cause, the Company's determination shall be final and
binding on the Employee.
4.2 Disability. Notwithstanding any event of disability,
Employee shall be entitled to the salary payable hereunder. Disability shall
mean determination that Employee is not able to perform his duties hereunder and
shall be determined by a panel of three physicians, one of which is appointed by
the Company, of appointed by the Employee and one jointly appointed by the two
other appointed physicians. Any payment to Employee under any disability
insurance plan maintained by the Company shall be applied against and shall
reduce the compensation payable by the Company to Employee under this Agreement.
4.3 Co-terminous. This Agreement shall be co-terminous with
the Employment Agreement entered this date between the Company and Leonard
Haimes. Any termination of that agreement shall have the effect of terminating
this Agreement.
5. Confidential Information; Non-Competition; Discoveries.
5.1 Confidential Information. The Employee shall not, at any
time during or following termination or expiration of the term of this Agreement
and Plan of Reorganization, directly or indirectly, disclose, publish or divulge
to any person (except in the regular course of the Company's business), or
appropriate, use or cause, permit or induce any person to appropriate or use,
any proprietary, secret or confidential information of the Company including,
without limitation, knowledge or information relating to its discoveries,
inventions, copyrights, trade secrets, business methods, the names or
requirements of its customers or the prices, credit or other terms extended to
its customers, all of which the Employee agrees are and will be of great value
to the Company and shall at all times be kept confidential. Upon termination or
expiration of this Agreement and Plan of Reorganization, the Employee shall
promptly deliver or return to the Company all materials of a proprietary, secret
or confidential nature relating to the Company together with any other property
of the Company which may have theretofore been delivered to or may then be in
possession of the Employee.
5.2 Non-Competition. During the term of his employment and for
three-year period that this Agreement would have been in effect but for its
earlier termination, thereafter, the Employee shall not, without the prior
consent of the Company in each instance, directly or indirectly, in any manner
or capacity, whether for himself or any other person and whether as proprietor,
principal, owner, shareholder, partner, investor, director, officer, employee,
representative, distributor, consultant, independent contractor or otherwise,
engage or have any interest in any entity which is engaged in any business or
activity which competes, directly or indirectly, with any business or activity
then or theretofore conducted or engaged in by the Company including any
business within a radius of ten miles from a Clinic or a business which the
Company then plans to engage in or conduct. Notwithstanding the foregoing,
however, the Employee may at any time own in the aggregate as a passive (but not
active) investment not more than 5% of the stock or other equity interest of
any, publicly-traded entity which so competes with the Company.
5.3 Discoveries, Etc. The Employee shall promptly disclose to
the Company, or its nominee, any and all, and all knowledge of, designs,
inventions, discoveries and improvements conceived or made by the Employee
during the term of this Agreement and Plan of Reorganization and related to the
business or activities of the Company, and without further compensation, hereby
assigns and agrees to execute any and all instruments of assignment hereafter
necessary in order to assign all of her interests therein to the Company or its
nominee. Whenever requested to do so by the Company, the Employee shall execute
any and all applications, assignments and other instruments and documents which
the Company may deem necessary to apply for and obtain letters patent in the
Untied States or any foreign country or otherwise to protect the Company's
interests therein.
5.4 Reasonableness. The Employee agrees that each of the
provisions of this Section 5 is reasonable and necessary for the protection of
the Company; that each such provision is and is tended to be divisible; that if
any such provision (including any sentence, clause or part) shall be held
contrary to
law or invalid or unenforceable in any respect in any jurisdiction, or as to any
one or more periods of time, areas or business activities, or any part thereof,
the remaining provisions shall not be affected but shall remain in full force
and effect as to the other and remaining parts; and that any invalid or
unenforceable provision shall be deemed, without further action on the part of
the parties hereto, modified, amended and limited to the extent necessary to
render the same valid and enforceable in such jurisdiction. The Employee further
recognizes and agrees that any violation of any of her agreements in this
Section 5 would cause such damage or injury to the Company as would be
irreparable and the exact amount of which would be impossible to ascertain and
that, for such reason, among others, the Company shall be entitled, as a matter
of course, to injunctive relief from any court of competent jurisdiction
restraining any further violation. Such right to injunctive relief shall be
cumulative and in addition to, and not in limitation of, all other rights and
remedies which the Company may possess.
5.5 Survival. The provisions of this Section 5 shall
survive the expiration or termination of this Agreement and Plan of
Reorganization for any reason.
6. Miscellaneous.
6.1 Notices. All notices under this Agreement and Plan of
Reorganization shall be in writing and shall be deemed to have been duly given
if personally delivered against receipt or it mailed by first class registered
or certified mail, return receipt requested, addressed to the Company,
attention: Chairman, President or Secretary, and to the Employee, at their
respective addresses set forth on the first page of this Agreement and Plan of
Reorganization, or to such other person or address as may be designated by like
notice hereunder. Any such notice shall be deemed to have been given on the day
delivered, if personally delivered, or on the second day after the date of
mailing if mailed.
6.2 Parties in Interest. This Agreement and Plan of
Reorganization shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns, but no other person shall acquire or
have any rights under or by virtue of this Agreement and Plan of Reorganization,
and the obligations of the Employee under this Agreement and Plan of
Reorganization may not be assigned or delegated.
6.3 Governing Law; Severability. This Agreement and Plan of
Reorganization shall be governed by and construed and enforced in accordance
with the laws and decisions of the State of Florida applicable to contracts made
and to be performed therein without giving effect to the principles of conflict
of laws. In addition to the provisions of paragraph 5.4 above, the invalidity or
unenforceability of any other provision of this Agreement and Plan of
Reorganization, or the application thereof to any person or circumstance, in any
jurisdiction shall in no way impair, affect or prejudice the balance of this
Agreement and Plan of Reorganization, which shall remain in full force and
effect, or the application thereof to other persons and circumstances.
6.4 Entire Agreement; Modification; Waiver. This Agreement and
Plan of Reorganization contains the entire agreement and understanding between
the parties with respect to the subject matter hereof and supersedes all prior
negotiations and oral understandings, if any. Neither this Agreement and Plan of
Reorganization nor any of its provisions may be modified, amended, waived,
discharged or terminated, in whole or in part, except in writing signed by the
party to be charged. No wavier of any such provision or any breach of or default
under this Agreement and Plan of Reorganization shall be deemed or shall
constitute a waiver of any other provisions, breach or default.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement and Plan of Reorganization as of the date first above written.
HEALTH WELLNESS NATIONWIDE CORP.
By: s\Neal Heller
Neal Heller, President
EMPLOYEE
s\Samantha Haimes
Samantha Haimes