Exhibit
10.3
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(hereinafter referred to as the
“Agreement”) made as of the Effective Date indicated
below, by and among Mark Jarvis, an individual residing in Houston,
TX (hereinafter referred to as "Executive") and Red Sun
Mining, Inc., with offices in Santa Ana, (hereinafter referred to
as "ZURVITA").
RECITALS
WHEREAS , ZURVITA desire to retain the services of
Executive (a) to render Executive’s services to ZURVITA as
ZURVITA President on the terms and conditions as more particularly
set forth herein; and
WHEREAS , Executive is agreeable to rendering such
services to ZURVITA on the terms and conditions set forth herein;
and
NOW THEREFORE , in consideration of the foregoing and of the
mutual covenants and restrictions contained herein, and other
valuable consideration, the receipt of which is hereby
acknowledged, each of the Parties, their respective personal
representatives, heirs, successors and assigns, intending to be
legally bound hereby agree as follows:
SECTION 1: Incorporation of
Recitals
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(a)
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Incorporation of Recitals
. The above recitals are
true and correct and are hereby incorporated herein by
reference.
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SECTION
2:
Employment Term, Duties and Acceptance .
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(a)
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ZURVITA hereby retains Executive for a period of
two (2) years or such later date to which this Employment Agreement
is otherwise extended or renewed by written instrument signed by
both Parties, commencing on the date hereof (“Commencement
Date”) (hereinafter referred to as the "Employment Period"),
to render his services to ZURVITA upon the terms and conditions
herein contained. Executive serve as ZURVITA’s Co-CEO,
responsible for sales, marketing and downline/agent management and
recruitment (“Co-CEO”). As Co-CEO, Executive
shall have the right and prerogative of using the title
“CEO”. Executive will report to and be
responsible to ZURVITA’s Board of Directors and the Managing
Co-CEO. Executive shall work with the Managing Co-CEO, who
will be primarily responsible for ZURVITA’s administration,
finance, and overall management (“Managing Co-CEO”),
and who shall also report to and be responsible to the Board of
Directors. In cases where Executive and the Managing Co-CEO
do not agree, the authority of the Managing Co-CEO shall take
precedence. Unless a new employment agreement is entered into
by the parties, this Employment Agreement shall automatically be
renewed for successive one (1) year periods unless either party
notifies the other in writing no later than ninety (90) days prior
to the expiration of the Employment Period that this Employment
Agreement will terminate upon expiration of the Employment
Period.
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(b)
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Executive hereby accepts the foregoing
employment and agrees to render his services to ZURVITA in such a
manner as to reflect his best efforts. In furtherance of Executive
performing the duties assigned to him under this Agreement, ZURVITA
agrees, at its own cost, to provide Executive with the funding,
staff, products, and equipment reasonably requested by Executive so
as to enable him to carry out such duties.
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The Parties
agree that Executive shall devote his full business time, attention
and energies to the business of ZURVITA and shall not during the
term of this Agreement enter into any other business activity that
interferes with Executive’s duties and responsibilities for
ZURVITA, unless approved in writing by ZURVITA. The foregoing
notwithstanding, the Parties recognize and agree that Executive may
engage in personal investments, other business activities and
civic, charitable or religious activities which do not conflict
with the business and affairs of ZURVITA or interfere with
Executive's performance of his duties hereunder.
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Executive’s services shall be performed
principally at ZURVITA headquarters in Houston,
TX. However, from time to time, Executive may also be
required by his job responsibilities to travel on ZURVITA business,
and Executive agrees to do so.
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Executive shall
have no authority to contractually or financially bind ZURVITA,
except as within stated authorization limits set by the Managing
Co-CEO and/or Board of Directors.
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During the term
of this Agreement, Executive shall receive annual compensation of
four hundred eighty thousand dollars ($480,000.00) (“Base
Salary”). This compensation may, at Executive's
election, be accrued, in whole or in part. Executive’s
compensation shall be payable in accordance with the general
payroll practices of ZURVITA, as are from time to time in effect,
less such deductions or amounts as shall be required to be withheld
by applicable law or regulation.
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Unless
Executive is otherwise covered during the Employment Period,
ZURVITA agrees on behalf of Executive to obtain and pay for
ZURVITA’s standard health insurance policy afforded other
executives of ZURVITA.
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Executive shall
be entitled to reasonable paid vacation time, sick leave and time
to attend professional meetings comparable to that offered ZURVITA
executives in comparable positions. For the purposes of
this Agreement, reasonable vacation time shall be deemed to mean
four (4) weeks.
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(d)
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ZURVITA shall promptly pay or reimburse
Executive for reasonable professional expenses incurred in the
performance of services under this Agreement during the Employment
Period, upon presentation of expense statements, and subject to
ZURVITA’s expense reimbursement policies and
procedures. Vouchers or such other supporting
documentation may reasonably be required.
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(e)
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During the Employment Period, Executive shall be
entitled to such health insurance and other benefits, as may be
provided to other comparable executives at ZURVITA, in accordance
with the policies, programs and practices of ZURVITA which are in
effect from time to time after the effective date of this
Agreement.
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(f)
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Within thirty (30) days of the execution of this
Agreement, ZURVITA shall place into escrow one million eight
hundred thousand six hundred twenty five (1,800,625) shares of
ZURVITA Class A common stock for Executive, pursuant to the
Zurvita, Inc. 2009 Incentive Stock Plan, a copy of which has been
provided to Executive, and will be subject to all of its terms and
conditions. (“Initial Shares”). In addition
to the other terms and conditions that may be imposed by the
Zurvita 2009 Incentive Stock Plan, any shares of Class A common
stock granted pursuant to this Section 3(f) will be subject to a
vesting period pursuant to which the shares of Class A common stock
will vest as follows: one (1) installment, representing nine
hundred thousand six hundred twenty five (900,625) shares vested on
the first anniversary of the Effective Date of this Agreement; and
one (1) installment, representing nine hundred thousand (900,000)
shares vested on the second anniversary of the Effective Date of
this Agreement. In the event of the termination of
Executive’s employment, any unvested shares will be subject
to forfeiture as provided in the applicable grant
documents. The Company’s Audit Committee, or in
the absence of the Audit Committee, the Board of Directors of the
Company, shall reasonably determine whether or not the criteria set
forth in this Section 3(f) for the grant of stock have been
satisfied.
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(g)
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The first six (6) months following the Effective
Date of this Agreement shall be a “Start-Up
Period”. In the event that, for the first quarter
ending after the Start-Up Period, (the “Measuring
Quarter”), ZURVITA is operationally cash flow positive,
within thirty (30) days after ZURVITA files its Quarterly Report on
Form 10-Q with the SEC (“Quarterly Report”) with
respect to the Measuring Quarter, ZURVITA shall issue to Executive
one million eight hundred thousand six hundred twenty five
(1,800,625) shares of ZURVITA Class A common stock
(“Performance Shares”), which Performance Shares, if
issued on the Effective Date, would represent not less than five
percent (5%) of the issued and outstanding Class A Common Stock of
the Company as of the Effective Date and as determined on a fully
diluted basis.
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Alternatively,
for the two quarters ending six (6) months after Start-Up Period,
(“Extended Measuring Quarters”), should the average
ZURVITA monthly cash flow during the Extended Measuring Quarters,
as documented on the monthly cash flow statements, and verified in
the Quarterly Report(s), be operationally cash flow positive, the
Performance Shares shall be issued to Executive, as detailed
herein.
ZURVITA makes
no representation as to the percentage of Class A Common Stock
Executive may own as of any date the Performance Shares may be
issued. Any shares of Class A Common stock issued pursuant to this
Section 3(g) will be issued pursuant to the Zurvita, Inc. 2009
Incentive Stock Plan and will be subject to all of its terms and
conditions. In addition to the other terms and
conditions that may be imposed by the Zurvita 2009 Incentive Stock
Plan, any shares of Class A common stock granted pursuant to this
Section 3(g) will be subject to a one (1) year vesting period
pursuant to which the shares of Class A common stock will vest in
one (1) equal installment on the first anniversary of the date on
which the shares of Class A Common stock are granted pursuant to
this Section 3(g). In the event of the termination of
Executive’s employment, any unvested shares will be subject
to forfeiture as provided in the applicable grant
documents. The Company’s Audit Committee, or in
the absence of the Audit Committee the Board of Directors of the
Company, shall reasonably determine whether or not the criteria set
forth in this Section 3(g) for the grant of stock have been
satisfied.
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(h)
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Executive acknowledges and understands that (i)
any grant of stock pursuant to Section 3(f) or 3(g) will result in
taxable income to Executive; (ii) the shares of stock granted will
constitute “restricted securities”. Under applicable
securities laws and will be subject to various terms and conditions
which may limit Executive’s ability to sell, transfer or
otherwise dispose of the shares and/or which may result in the loss
or forfeiture of such shares; and (iii) the terms and conditions of
the Zurvita 2009 Incentive Stock Plan are not guaranteed any may be
altered or eliminated in accordance with the terms of the Zurvita
2009 Incentive Stock Plan.
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(i)
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Executive shall further be compensated by
through a Stock Purchase Agreement executed between Executive and
Amacore Group, Inc., which shall be solely governed by the terms of
that Agreement.
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SECTION
4: Incentive Bonus
Compensation
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Incentive
Bonus Compensation Generally . In addition to the Base Salary,
Executive shall also be eligible to receive performance incentive
bonuses during Executive’s employment with ZURVITA for
revenue generated by ZURVITA (“Incentive Bonus
Compensation”). All bonus compensation shall be
subject to applicable payroll processes, withholdings, and
employment taxes. The amount of Executive’s incentive bonuses
will be determined by the measurable formulaic goals as more
particularly set forth in this Section 4.
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Incentive
Bonus Calculation . Executive’s Incentive Bonus
Compensation shall equal ten percent (10%) of ZURVITA “Net
Income”. For the purposes of this Agreement, “Net
Income” shall be calculated in accordance with United States
Generally Accepted Accounting Principles as presented within the
Company’s audited financial statements contain within its
Form 10K filing. Incentive bonus will be paid within 45
days from the date the Form 10K was filed with the Securities and
Exchange Commission..
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For example,
if ZURVITA “Net Income” is six million dollars
($6,000,000.00), Executive shall receive Incentive Bonus
Compensation of six hundred thousand dollars ($600,000.00), or ten
percent (10%) of six million dollars
($6,000,000.00).
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Complete
Compensation . The salary, benefits, and Incentive
Bonus Compensation described in this Agreement shall be the sole
compensation derived by Executive for services under this
Agreement, from any relationship between ZURVITA and any third
party, and from the sale or transfer of any product, service, data,
or other property related to ZURVITA.
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SECTION
5: Disability and Death
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Upon the
disability, as defined in subparagraph 5(b) hereof, of Executive
during the Employment Period, ZURVITA may, in its sole discretion,
terminate Executive's employment; provided that if ZURVITA elects
to so terminate Executive's employment, Executive shall be entitled
to receive, immediately upon such termination in a lump sum
payment, (i) accrued but unpaid salary, (ii) expense reimbursement,
(iii) accrued but unpaid Incentive Bonus
Compensation, and (iv) an amount from ZURVITA monthly
which, when added to the amount received b
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