EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 6, 1995, by and between
XXXXXXXX XXXXXXXX, an individual residing at 00 Xxxxxxx Xxxx, Xxxx Xxxx, XX
00000 ("Xxxxxxxx" or the "Employee") and PDK Labs Inc., having offices at 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the "Company").
WHEREAS, as of October 18, 1993, Employee and the Company entered into
a seven (7) year Employment Agreement; and
WHEREAS, the Company is desirous of extending the exclusive employment
services of Xxxxxxxx and Xxxxxxxx is desirous of providing his exclusive
employment services to Company in connection with the day-to-day operations of
the Company with respect to the sale of generic drug and vitamin products
throughout the territory covered by this Agreement.
NOW, THEREFORE, in consideration of mutual premises and covenants
contained herein, the parties hereto agree as follows:
1. The Company hereby agrees to employ Xxxxxxxx and Xxxxxxxx hereby
agrees to be exclusively employed as the Company's Executive Vice President.
Xxxxxxxx shall have the title "Executive Vice President" and shall have the
duties commensurate with such title.
2. The term of this Agreement shall be for the period of
seven (7) years commencing on the date first set forth above; provided, however,
that this Agreement may be canceled by the Company, at its sole direction, at
any time after October 5, 1996, upon ninety (90) days written notice to
Employee. Each twelve month period during the term of this Agreement (i.e.
October 6th through October 5th) is sometimes hereinafter referred to as a
"Contract Year." The territory covered by this Agreement shall be every place
where the Company presently does business or may do business during the term
hereof.
3. As consideration for Xxxxxxxx'x agreement to provide his exclusive
services to the Company, the Company hereby agrees to pay to Xxxxxxxx a minimum
salary of $200,000 per annum for each year during the term hereof (the "Term").
Such salary shall be payable by the Company on a bi-weekly basis.
4. Upon the execution hereof, the Corporation shall deliver to Employee
200,000 shares of the Company's common stock in consideration for payment of par
value $.01 per share (the "Common Stock"); provided however, that commencing
upon the date hereof through October 5, 2002 for each three (3) month period (or
any part thereof) that Executive is not employed by Corporation pursuant to the
terms of this Agreement for any reason whatsoever, unless otherwise agreed in
writing by the parties, Executive shall
2
automatically forfeit Seven Thousand One Hundred Forty Two (7,142) shares of
Common Stock. Notwithstanding the foregoing, in the event that (i) Corporation
shall file a Registration Statement with the Securities and Exchange Commission
on Form S-1 (or any other appropriate form) during the Term hereof and (ii) the
underwriter with respect to the Registration Statement (or Corporation, if there
is not an underwriter) has agreed to register any or all shares of Common Stock
granted to Executive hereunder, then none of such shares which are so registered
will be subject to forfeiture thereafter and only those shares, if any, that
remain unregistered shall be subject to the provisions of forfeiture (on a
prorated basis) set forth in the immediately preceding sentence. The shares of
Common Stock to be delivered to employee hereunder are not registered pursuant
to the Securities Act of 1933 as amended or the securities laws of any state and
may not be transferred unless registered thereunder or qualifying for an
exemption from registration. Employee expressly agrees that in the event that
are any resale limitations now in existence or hereafter imposed upon any shares
of Common Stock owned by Xxxxxxx Xxxxxxxx during the term hereof, then none of
the shares of common Stock issued to Employee hereunder may be sold until such
time as such resale limitations have expired. The foregoing is in addition to
the
3
resale limitations of Rule 144. All of the shares of Common Stock issued to
Employee hereunder shall bear an appropriate legend evidencing the foregoing
restrictions. Employee agrees to sign a Voting Trust Agreement in the form
annexed hereto as Exhibit A, wherein Employee shall vote along with Xxxxxxx
Xxxxxxxx for ten (10) years on all issues put to the vote of the shareholders of
the Company.
5. (a) Employee shall be entitled two (2) weeks paid vacation during
the first Contract Year and three (3) weeks paid vacation during each subsequent
Contract Year of the term hereof. Additionally, Employee shall be entitled to
all health and insurance benefits and any other employee benefit plans afforded
by the Company to all of its employees. The Company shall have the right, but
not the obligation, to take out "key-man" insurance on Employee. Employee agrees
to consent to and make himself available for any physical examinations required
by any insurance company chosen by Company in connection with Company's
procurement of any such "key-man" insurance during the term hereof.
(b) With respect to Employee's use of an automobile in
connection with the performance of his duties hereunder, Corporation shall, at
the direction of Employee, either reimburse Employee for, or directly pay the
costs of, the use of an
4
automobile during the Term of this Agreement and all usual expenditures in
connection therewith; i.e., fuel, insurance, parking, customary maintenance and
repairs, etc. The type of automobile shall be selected by Employee.
6. (a) During the Term hereof, Employee agrees to be exclusively
employed by the Company and agrees that he shall be a full time employee of the
Company and as such, shall devote his best efforts and all of his time to
advance the interests of Company. The foregoing proscription shall not prohibit
Employee from making any passive investments in any corporations, or being a
limited partner in any limited partnership.
(b) For no less than three (3) years after the execution
hereof, whether or not employed by the Company, and for one (1) year after the
expiration or termination of this Agreement, Employee agrees that he shall not,
directly or indirectly, alone or as a member of a partnership, or as an
employee, officer, director, or shareholder of any other corporation, be engaged
in or concerned with any other duties or pursuits within a radius of one hundred
(100) miles from the Company's then principal executive office (the "Non Compete
Territory") that may compete directly or indirectly in any manner whatsoever
with the Company's business at the date of the expiration or termination hereof,
except with the prior written
5
consent of Company, which consent may be withheld by Company in its
sole and absolute discretion.
(c) Xxxxxxxx expressly agrees that for one (1) year after the
expiration or termination of this Agreement, within the Non-Compete Territory,
Xxxxxxxx shall neither (i) engage in any business activities whatsoever with any
customers of the Company, nor (ii) contact any customers of the Company for any
purpose whatsoever.
7. Employee acknowledges and agrees that his services to be provided to
Company hereunder are of a unique and extraordinary character, and to replace
the services of Employee would cause the Company great hardship. Accordingly, in
the event of a breach or threatened breach by the Employee of the provisions
herein, including but not limited to Sections 6 and 8 hereof, in addition to
Company's other remedies hereunder, Company shall be entitled to a temporary or
permanent injunction restraining Employee from violation of any of the terms
hereof. Nothing herein contained shall be construed as prohibiting Company from
pursuing any and all other remedies available to it for any such breach or
threatened breach.
8. Any financial advice, memoranda, customer list or other
documentation which Employee becomes aware of during the term of
6
this Agreement shall not be disclosed to any third-party or person for any
reason whatsoever without the express, prior written approval of Company, which
may be withheld by Company in its absolute discretion. It is expressly
acknowledged and agreed by Employee that Company shall be furnishing
proprietary, confidential product, financial, marketing, organizational,
customer and other data relating to the business of Company (hereinafter
referred to, together with the advice, memoranda and documentation referred to
in the preceding sentence as "confidential information") during the term hereof.
Confidential information includes not only original information, but also
information transferred orally, in writing or by any other means whether now
known or hereafter devised. All confidential information which Employee learns
of during the term hereof and all confidential information given by Company to
Employee will be considered non-public and shall be retained as such by
Employee. Confidential information shall be used by Employee solely in
connection with his duties hereunder and for no other purpose whatsoever. Upon
the termination of this Agreement for any reason, Employee shall immediately
deliver to Company all copies of any confidential information and other
materials delivered to Employee by Company and all abstracts and summaries
thereof prepared by Employee. Employee shall not have the right to
7
disclose any confidential information to any third-person or entity for any
reason whatsoever upon the expiration or termination of this Agreement.
9. It is expressly understood that the services of Employee are unique
and accordingly, Employee may not assign any of his rights or obligations
hereunder. Company shall have the right to assign its rights and obligations
hereunder, provided, however, that Company shall remain liable for all
compensation to Employee hereunder.
10. Each of the parties hereto represents, warrants and agrees that it
has the full right, power and authority to enter into this Agreement, and upon
the full execution hereof this Agreement shall be a valid and binding and
enforceable against each of the parties in accordance with its terms.
11. Each of the parties hereto expressly acknowledges and agrees that
all representations, warranties and agreements made by both parties hereunder,
except with respect to the Company's obligation to compensate Employee
subsequent to the expiration or termination hereof, shall survive the expiration
or termination of this Agreement.
12. This Agreement, including any exhibits and schedules hereto and
other documents and certificates delivered pursuant to
8
the terms hereof, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersede
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto.
13. All notices requested and other communication required herein shall
be in writing and shall be deemed to be duly given and delivered by either
certified or registered mail, return receipt requested with postage prepaid or
by private overnight mail service (e.g., Federal Express).
If to Xxxxxxxx:
Xxxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000
With copy to:
If to Company;
PDK Labs Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With copy to:
Xxxxxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
9
Or in each case to such other person who addresses any party shall
furnish to the other party in writing.
14. The remedies provided herein shall be cumulative and shall not
preclude Company from asserting any other rights or seeking any other remedies
against Employee.
15. If in any jurisdiction, any provision of this Agreement or its
application to any party or circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such jurisdiction, be ineffective
only to the extent of such restriction, prohibition or unenforceability without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of such provision in any other jurisdiction or its application
to other parties or circumstances.
16. No party hereto shall make or issue, or cause to be made or issued,
any announcement or written statement concerning this Agreement or the
transactions contemplated hereby for dissemination to customers, suppliers,
sales representatives or employees or the general public prior to the execution
hereof.
17. This Agreement shall supersede all previous Employment Agreements
between the parties, including but not limited to, the Employment Agreements
dated September 1991 and October 1993.
18. This Agreement and the legal relations among the parties
10
hereto shall be governed by and constructed in accordance with the laws of the
State of New York without regard to its conflicts of law doctrine. Each of the
parties hereto irrevocably consents to the jurisdiction of the Federal and State
Courts located in the State of New York.
19. This Agreement may be executed simultaneously in one or more
original or facsimile counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the 6th
day of October, 1995.
PDK LABS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxxxx Xxxxxxxx
----------------------
Xxxxxxxx Xxxxxxxx
11
