EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of March, 2000, among XXXXXXXX.XXX, INC.,
a New York corporation ("Employer"), and XXXXXXX XXXXX, residing at
0000 Xxxxxxxx Xxx., Xx. Xxx, XX 00000 ("Executive").
W I T N E S S E T H:
WHEREAS, Executive has been a key executive officer and employee of
Employer and Employer wishes to retain the services of Executive as an employee
and officer of Employer, and Executive desires to render such services;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. PRIOR AGREEMENTS SUPERSEDED; EFFECTIVENESS.
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(a) This Agreement supersedes any employment agreements, oral or
written, entered into between Executive and Employer prior to the date of this
Agreement.
2. RETENTION OF SERVICES.
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The Employer hereby agrees to employ the Executive and the Executive agrees
to accept employment on, and subject to, the terms and conditions hereinafter
set forth.
3. TERM OF EMPLOYMENT.
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Subject to earlier termination in accordance with Section 8 hereof, the
term of this Agreement shall commence effectively on March 1, 2000 and end on
February 28, 2005 ("Term of Employment").
4. DUTIES.
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(a) During the Term of Employment, the Executive shall be employed by
the Employer as President. The Executive agrees that he will devote his full
business time and best efforts exclusively to the faithful and diligent
performance of all of the duties and responsibilities incident to that position
as well as all such other executive duties and responsibilities for or on behalf
of the Employer and its subsidiaries in that executive capacity as required to
perform from time to time by the Board of Directors.
5. COMPENSATION.
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For so long as the Executive is employed by the Employer, in consideration
of the services to be rendered by the Executive hereunder, the Employer agrees
to pay to the Executive during the Term of Employment, and the Executive agrees
to accept as compensation,
(a) a salary of One Hundred Ninety-Two Thousand Five Hundred and
00/100 ($192,500.00) Dollars for the first year of the Agreement to be increased
ten (10%) percent from the prior year's salary each year thereafter (the
"Salary"). The Salary shall be payable in monthly installments or in accordance
with the Employer's normal payroll policies.
(b) In addition to the foregoing, Executive shall be entitled to an
incentive bonus of ten (10%) percent of all front end franchisee fees earned by
the Employer during the Term of Employment.
(c) During the Term of Employment, Executive shall be entitled to the
following benefits and perquisites:
(i) Participation, subject to qualification requirements, in all
medical and hospitalization plans, presently in effect or
hereinafter instituted by the Employer and applicable to its
Executive employees.
(ii) a term life insurance policy renewable yearly in the principal
amount of $2,000,000.
(iii)$2,000 per month as and for reimbursement of all reasonable and
necessary expenses incurred by the Executive in performing his
employment hereunder.
(iv) the use of a suitable automobile and the payment or reimbursement
of all expenses incidental thereto including fuel, repairs,
insurance and registration and inspection fees.
(v) Vacation and sick leave in accordance with the Employer's
policies in effect from time to time for executives of the
Employer.
(vi) Participation in any Stock Option Plan and/or Stock Purchase
Plans existing now or hereafter instituted by Employer.
(vii)Participation in the existing or any successor pension and profit
sharing plans of the Employer ("Employer's Plans").
(viii) Reimbursement of premiums expended by Executive for Disability
Insurance in the maximum principal amount attainable commensurate
with Executive's Salary.
6. DEATH BENEFIT.
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If Executive dies during the Term of Employment, then, provided the
Executive was not in breach of this Agreement on the date of his death, his
monthly salary shall be continued for a twelve (12) month period following the
date of death and shall be paid to his widow, or to a designee other than his
widow if such designation is made in writing by Executive, or if no widow
survives him and no designation has been made hereunder, then to his estate
provided that such monthly salary shall not be paid for any period beyond the
Term of Employment.
7. DISABILITY.
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Subject to Section 8(c)(iii), if during the Term of Employment, the
Executive becomes unable for six (6) consecutive months or more, due to ill
health or other incapacitation, to perform his duties hereunder, then, on at
least thirty (30) days' written notice, the Employer may place him on disability
status (and he shall then receive such disability benefits then provided to
other executive employees of Employer) at the end of any month after said
six-month period at no salary for the remainder of the Term of Employment or
until his disability ends, whichever first occurs.
8. TERMINATION OF EMPLOYMENT.
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This Agreement and, accordingly, the Term of Employment, may be terminated
earlier than as specified in Section 3 hereof, upon the happening of any of the
following events:
(a) Whenever Employer and the Executive shall mutually agree in
writing to terminate this Agreement.
(b) Upon the death of the Executive, provided that in such event, the
amounts due under Paragraph 6 will be paid as provided therein.
(c) At the option of the Employer, if the Executive shall:
(i) be in breach of or default under any material provision of
this Agreement for a period of thirty (30) days after notice
of such breach is given by Employer to the Executive; or
(ii) be convicted or have acknowledged the commission of fraud,
misappropriation or embezzlement; or
(iii)become totally incapacitated so as to preclude performance
of the duties of his employment hereunder for a period of
six (6) consecutive months.
(d) At the Executive's option, if Employer shall be in breach of or
default under any material provision of this Agreement for a period of thirty
(30) days after notice of such breach is given by the Executive to the Employer.
9. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
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The Executive agrees, that at any time during or after he ceases to be
employed by the Employer, he will not directly or indirectly (except where
authorized by the Board of Directors of the Employer) divulge to any persons,
firms or corporations,(hereinafter referred to collectively as "third parties"),
or use or cause to authorize any third parties to use, any information regarded
as confidential and valuable by the Employer which he knows or should know is
regarded as confidential and valuable by the Employer. The non-disclosure
obligations of this section shall not be imposed with regard to information
which is or subsequently becomes, through no fault of Executive, generally
available to the public or is disclosed as required by court order or by an
order of a Regulatory Agency.
10. NON-COMPETITION.
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(a) During the Term of Employment, the Executive will not, anywhere:
(i) engage, directly or indirectly, either individually or as
stockholder, partner, officer, director, employee,
consultant, agent or otherwise, in any business which is in
competition with the Employer or
(ii) solicit for employment or employ, or cause or authorize
directly or indirectly to be solicited for employment or
employ, for or on behalf of himself or third parties, any
persons who were at the time the Executive's employment
hereunder ended, employees of the Employer.
(b) The Executive agrees that he will not, at any time, remove from
the Employer's premises any drawings, notebooks, data and other documents and
materials relating to the business and procedures of the Employer, except as
reasonably necessary to the discharge of his duties hereunder.
(c) In the event of a breach of this covenant not to compete, the
parties acknowledge that the Employer may be irreparably damaged and may not
have an adequate remedy at law. Therefore, Employer may obtain injunctive
relief, without the necessity of posting a bond, for any breach or threatened
breach of this covenant. The parties hereto further acknowledge that this
covenant not to compete is intended to conform to the extent required with the
laws of the State of New York. Any court of competent jurisdiction is hereby
authorized to expand or contract the geographical, temporal or other
restrictions of this covenant not to compete in order to conform with the laws
of the State of New York so that it shall bind the parties hereto and be
enforceable by that court.
11. INJUNCTIVE RELIEF AND OTHER REMEDIES.
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(a) Executive agrees that any breach or threatened breach by him of
any provision of Sections 9 and 10 shall entitle the Employer, on a non-mutually
exclusive basis, in addition to any other legal remedies available to it, to
apply to any court of competent jurisdiction to enforce specifically the terms
of this Agreement or enjoin such breach or threatened breach. The parties
understand and intend that each restriction agreed to by Executive above and
elsewhere herein will be construed as separable and divisible from every other
restriction and that the unenforceability, in whole or in part, of any other
restriction will not affect the enforceablility of the remaining restriction and
that one or more or all of such restrictions may be enforced in whole or in
part, as the circumstances warrant.
(b) If any of the covenants contained in Sections 9 and 10 or any
aspects thereof are construed to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants, which shall be given full
effect, without regard to the invalid parts.
12. SUCCESSORS AND ASSIGNS.
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This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and the Employer's successors or assigns (whether resulting from
any reorganization, consolidation or merger of the Employer) and the Executive's
heirs, executors and legal representatives.
13. ENTIRE AGREEMENT.
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This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter hereof, supersedes all prior
agreements and understandings with respect thereto and cannot be modified,
amended, waived or terminated, in whole or in part, except in accordance with
the terms hereof or by a writing signed by all of the parties. No course of
dealings between the parties during the term of this Agreement shall be deemed
to amend or expand the obligations of any of the parties hereto unless
incorporated in a written instrument as aforesaid.
14. NOTICE.
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Any notice to a party hereto pursuant to this Agreement shall be in
writing, shall be deemed given when received, and be delivered personally or
sent by certified mail return receipt requested, or by nationally recognized
overnight courier service, or by telecopier to the address of such party above
written.
15. GOVERNING LAW.
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This Agreement and all issues regarding the validity, construction,
interpretation, performance and enforceablility thereof, shall be governed and
construed exclusively in accordance with the laws of the State of New York
regardless of the laws that might otherwise govern this Agreement under
applicable conflicts of laws principles.
16. MISCELLANEOUS.
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This Agreement:
(a) may not (except as specifically provided) be assigned by any party
hereto without the prior written consent of the other parties (any purported
assignment hereof in violation of this provision being null and void);
(b) may be executed in various counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument; and
IN WITNESS WHEREOF, the parties hereto have duly executed this employment
agreement this 24 day of March, 2000.
XXXXXXXX.XXX, INC.
By:/s/
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/s/
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Xxxxxxx Xxxxx, Executive
