EXHIBIT 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement, entered into as of June 29, 2001, amended as of
September 24, 2001, by and between
ACCIDENT PREVENTION PLUS, INC., a Nevada corporation (the "Company"),
And
XXXXXXX X. XXXXXXXX (the "Executive").
WHEREAS on January 1, 1999, the Company and the Executive had entered
into an Executive Employment Agreement (the "1999 Employment Agreement");
WHEREAS the board of directors has determined that it is in the best
interests of the Company and its shareholders that the 1999 Employment Agreement
be terminated and that a revised executive employment agreement be entered into
between the Company and the Executive;
WHEREAS on June 29, 2001, the board of directors at a special meeting
approved the termination of the 1999 Employment Agreement and authorized and
approved the terms and execution of the revised executive employment agreement
dated June 29, 2001 between the Company and the Executive (the "2001 Employment
Agreement");
WHEREAS on September 24, 2001, Executive resigned his position as the
Chief Executive Officer of the Company;
WHERAS on September 24, 2001, the board of directors at a special
meeting authorized the appointment of Executive as the Executive Vice President
of the Company and, therefore, authorized and approved an amendment to the 2001
Employment Agreement to merely change Executive's title; and
WHEREAS the terms and provisions of the 2001 Employment Agreement, as
amended, supersede and replace the 1999 Employment Agreement in its entirety as
follows.
In consideration of the following mutual covenants and agreements hereinafter
set forth, the Company and Executive do hereby agree as follows:
1) EMPLOYMENT - POSITION AND DUTIES.
a) EMPLOYMENT. Commencing as of July 1, 2001, the Company hereby employs
Executive as Chairman of the Board and Executive Vice President, and
Executive hereby agrees to serve the Company as Chairman of the Board
and Executive Vice President on the terms and conditions set forth
herein. Executive shall perform such duties and responsibilities as may
from time to time be prescribed by the Board of Directors of the
Company provided that such duties and responsibilities are consistent
with Executive's position which will include the overall direction of
Company and for faithful discharge of such different or additional
duties including, but not limited to sales, marketing and corporate
functions as well as overseeing operations both domestically and
internationally. Executive agrees to perform faithfully and diligently
the customary duties of said office to the best of Executive's ability
and devote all of Executive's working time to the business and affairs
of the Company during the term of this Agreement.
b) EMPLOYMENT PERIOD. The employment period (the "Employment Period")
shall commence on July 1, 2001 and shall be for an initial term of one
(1) year; and thereafter the Employment period shall be automatically
renewed and extended for a period of up to Five (5) consecutive One (1)
year periods unless earlier terminated by either party by giving not
less than Three (3) months' notice prior to the end of said One (1)
year period.
2) COMPENSATION.
In consideration of the services provided to the Company by Executive, the
Company shall pay to Executive a monthly gross base salary ("Base Salary")
of Ten thousand dollars ($10,000), payable in accordance with the Company's
customary payroll practices throughout the Employment Period, subject to
Section 5 hereof.
Both Executive and the Company agree that at the end of each employment
year, Executive's base salary shall be increased by an amount determined by
multiplying Executive's original base salary by the numerator of the
Consumer Price Index (CPI) as of July of each such year. An additional
compensation will occur for meeting specific performance goals as outlined
in "Attachment A".
An annual cash bonus of one percent (1%) of the Net Profit of the Company
as determined by the Board of Directors will be awarded to Executive. An
Employee Stock Option Plan will also be granted to Executive for the
purchase of Company stock options as outlined in "Attachment B".
Executive will receive Twenty (20) paid working days for vacation over and
above the legal holidays recognized by the United States Federal Government
as non-working days for all employees and an additional Five (5) days for
sick or personal leave. For every Five (5) years of employment, Executive
will receive Five (5) additional working days for vacation. All days are
non-accruable.
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3) BENEFITS.
During the Employment Period:
a) FRINGE BENEFITS. If requested by the Executive, Executive shall at all
times during the Employment Period be entitled to participate in the
Company' disability, or health, medical or similar plans which are from
time to time in effect and which the Company offers to its employees.
The Company will pay all costs associated with individual medical
insurance. The Company shall also provide Executive with corporate
credit cards that shall only be used for corporate purposes.
b) TRAVEL AND ENTERTAINMENT, The Company shall reimburse Executive in
accordance with the Company's normal practice for all reasonable and
necessary expenses incurred by Executive in connection with the
business of the Company including travel and entertainment expenses,
upon presentation by Executive of itemized accounts of such
expenditures or such other supporting information as the Company will
require. Additionally, any single expense item in excess of One
thousand five hundred dollars ($1,500) shall be approved by the
President of Company in the absence of the Chief Financial Officer.
c) AUTOMOBILE. All Executive cars may be used for company demonstration
purposes. The Company shall reimburse Executive Six hundred
seventy-five dollars ($675.00) per month for expenses incurred by
Executive in connection with the purchase, lease and use of an
automobile upon presentation by Executive of such supporting
information as the company will require.
4) UNAUTHORIZED DISCLOSURE.
a) NON-COMPETITION. During the Employment Period and for a period of (i)
five (5) years thereafter in the case of any termination of the
Executive's employment other than a termination of such employment by
the Company without Cause (as hereinafter defined) or (ii) two (2)
years thereafter in the case of a termination of the Executive's
employment by the Company without Cause (the "Restricted Period"), the
Executive shall not, unless Executive receives the prior written
consent of the Company, directly or indirectly, own an interest in,
manage, operate, join, control, lend money or render financial or other
assistance to or participate in or be connected with, as an officer,
employee, partner, stockholder, consultant or otherwise, any individual
partnership, firm, corporation or other business organization or entity
that, at such time, is engaged in any business which is engaged in or
competes with the business of the Company.
b) NO INTERFERENCE. During the Restricted Period, the Executive shall not,
whether for his own account or for the account of any other individual,
partnership, firm, corporation or other business organization,
intentionally solicit, endeavor to entice away from the Company, or
otherwise interfere with the relationship of the Company, with any
person who is employed by the Company or any person or entity who is,
or was within the then most recent twelve-month period, a customer or
client of the Company.
c) SECRECY. The Executive recognizes that the services to be performed by
him hereunder are special, unique and extraordinary in that, by reason
of his employment with the Company, he may acquire confidential
information and trade secrets concerning the operation of the Company,
the use or disclosure of which could cause the Company substantial loss
and damages which could not be readily calculated and for which no
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remedy at law would be adequate. Accordingly, the Executive covenants
and agrees with the Company that he will not at any time, except in the
performance of his obligations to the Company hereunder or with the
prior written consent of the Company, directly or indirectly, disclose
any secret or confidential information that he may learn or has learned
by reason of his association with the Company, or any predecessors to
its business, or use any such information to the detriment of the
Company. The term "confidential information" includes, without
limitation, information not previously disclosed to the public or to
the trade by the Company with respect to the Company's products,
manufacturing processes, facilities and methods, research and
development, trade secrets and other intellectual property, systems,
patents and patent applications, procedures, manuals, confidential
reports, product price lists, customer lists, financial information
(including the revenues, costs or profits associated with any of the
Company's products), business plans, prospects or opportunities.
d) EXCLUSIVE PROPERTY, The Executive confirms that all confidential
information is the exclusive property of the Company. All business
records, source codes, papers and documents kept or made by the
Executive relating to the business of the Company shall be and remain
the property of the Company during the Employment Period and at all
times thereafter. Upon the termination of his employment with the
Company or upon the request of the Company at any time, the Executive
shall promptly deliver to the Company, and shall retain no copies of,
any written materials, records and documents made by the Executive or
coming into his possession concerning the business or affairs of the
Company other than personal notes or correspondence of the Executive
not containing proprietary information relating to such business or
affairs.
e) INVENTIONS. Any invention, improvement or discovery, whether or not
patentable, that relates to past or present business of the Company
(including research and evaluation), which the Executive may conceive
or make, either alone or in conjunction with others, (i) in the course
of his employment or within Twenty four (24) months immediately
thereafter, or (ii) which the Executive made prior to the effective
date of his employment with the Company and which was contributed to
the capital of the Company, shall be the sole and exclusive property of
the Company. The Executive will disclose to the Company each such
invention, improvement or discovery and will, whenever requested to do
so by the Company, promptly execute any and all applications,
assignments and other instruments which the company shall deem
necessary in order to apply for and obtain letters patent of the United
States and/or foreign countries for said invention, improvement or
discovery, and in order to assign and convey to the Company or its
order the sole and exclusive right, title and interest in and to said
invention, improvement or discovery.
f) INJUNCTIVE RELIEF. The Executive acknowledges that a breach of any of
the covenants contained in this Section 4 may result in material
irreparable injury to the Company for which there is no adequate remedy
at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat
thereof, any payments remaining under the terms of this Agreement shall
cease and the Company shall be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by
this Section 4 or such other relief as may be required to specifically
enforce any of the covenants in this Section 4. The Executive hereby
agrees and consents that such injunctive relief may be sought EX PARTE
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in any state or federal court of record in the State of New York, or in
the state and county in which such violation may occur or in any other
court having jurisdiction, at the election of the Company. The
Executive agrees to and hereby does submit to IN PERSONAM jurisdiction
before each and every such court for that purpose.
5) TERMINATION.
a) DEATH. Executive's employment hereunder shall terminate upon the death
of Executive.
b) INCAPACITY. The Company may terminate Executive's employment hereunder
upon Fifteen (15) days' prior notice by giving written Notice of
Termination (as defined below) to Executive in the event of Executive's
incapacity ("Incapacity") due to physical or mental illness which
prevents the proper performance of all or substantially all of
Executive's duties set forth herein for a period of Ninety (90)
consecutive days. Any question as to the existence or extent of the
incapacity of Executive upon which the Company and Executive cannot
agree shall be determined by a qualified independent physician selected
by the Company and Executive or Executive's representative, as the case
may be. The determination of such physician certified in writing to the
Company and to Executive shall be final and conclusive for all purposes
of this Agreement.
c) CAUSE. The Company may terminate Executive's employment contract
hereunder for Cause by giving written Notice of Termination to
Executive. For purposes of this Agreement, the Company shall have
"Cause" to terminate Executive's employment hereunder upon Executive's
(i) habitual drunkenness or willful failure to perform and discharge
his material duties and responsibilities hereunder or any breach by
Executive of any material provision of Section 4 hereof, or (ii)
misconduct that is materially injurious to the Company, or (iii)
conviction of a felony or any crime involving moral turpitude, or (iv)
the Executive's disregard of a direct order of the Board of Directors,
the substance of which order is (x) a proper duty of the Executive
pursuant to this Agreement, (y) permitted by law and (z) otherwise
permitted by this Agreement, which disregard continues for a period of
ten (10) days.
d) NOTICE OF TERMINATION. Any termination by the Company pursuant to
subsection (b) or (c) above shall be communicated by written Notice of
Termination to Executive. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific
termination provision of this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for such termination as determined by majority vote of the Board
of Directors. A date of termination specified in such Notice of
Termination shall not be dated earlier than the date such Notice is
delivered or mailed to Executive.
e) OBLIGATION TO PAY.
i) If Executive's employment shall be terminated by reason of death,
the Company shall pay Executive's estate all sums otherwise
payable to Executive through the end of the month in which the
Executive's death occurred. Thereafter the Company shall not have
any further obligations under this Agreement.
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ii) If the Executive's employment is terminated by reason of
Incapacity in accordance with Section 5(b) hereof, Executive or
the person charged with legal responsibility for Executive's
estate shall be paid by the Company all sums otherwise payable to
Executive, when and as due, including any benefits accrued or
accruable to Executive, through the date of termination specified
in the Notice of Termination and the Company shall not have any
further obligations to Executive under this Agreement. The Company
will maintain a Disability Insurance Policy on behalf of
Executive.
iii) If Executive's employment shall be terminated for Cause, Executive
shall be paid the Base Salary for three months, any commission due
to Executive and all benefits pursuant to Section 3 of this
Agreement through the date of termination specified in the Notice
of Termination and the Company shall not have any further
obligations to Executive under this Agreement.
f) TERMINATION OBLIGATION.
i) Upon termination of this Agreement, Executive shall be deemed to
have resigned from all offices and Board of Directors positions
then held with the Company.
ii) All of Executive's obligations under Sections 4 and 5 and all of
the Company's rights and remedies with respect thereto shall
survive termination of this Agreement.
6) NOTICES.
For the purpose of this Agreement, notices and all other communications to
either party hereunder provided for in the Agreement shall be in writing and
shall be periodically delivered in person or mailed by registered or certified
mail or their reasonable substitute (e,g., Federal Express), postage prepaid, or
sent by telecopy, addressed; in the case of the Company to:
The Company:
Accident Prevention Plus, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and in the case of Executive, to the address set forth opposite Executive's name
on the signature page hereto; or to such other address as either party shall
designate by giving written notice of such change to the other party.
7) WAIVER, MODIFICATION.
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is approved by the Board of Directors and
agreed to in writing signed by Executive and such officer as may be specifically
authorized by the Board of Directors. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
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8) VALIDITY.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
9) SURVIVAL.
The provisions of this Agreement shall not survive the termination of
Executive's employment hereunder, except that the provisions of Section 4 hereof
shall survive such termination and shall be binding upon Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees, and except that the provisions of Section 5
hereof relating to payments and termination of Executive's employment hereunder
shall survive such termination and shall be binding upon the Company and its
successors and permitted assigns, and except that other provisions of this
Agreement which specifically or impliedly contemplate their survival of the
termination of this Agreement shall survive and be binding upon the parties,
their representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees, and the Company and its successors and
permitted assigns.
10) COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
11) ENTIRE AGREEMENT.
This Agreement constitutes the full agreement and understanding of the parties
hereto and all prior agreements or understandings are merged herein. Either
party hereof has made no agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter, which are not set forth
expressly in this Agreement.
12) GOVERNING LAW.
This Agreement shall be interpreted under the laws of the State of New York.
13) NON-ASSIGNMENT,
This Agreement, and the parties' rights, duties, and obligations under this
Agreement, are not transferable, delegable or assignable by a party hereto
without the prior written consent of the other and any purported assignment
shall be void.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
EXECUTIVE
By:
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Home Address:
----------------------------
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ACCIDENT PREVENTION PLUS, INC.
By:
-----------------------------------
Title:
-----------------------------------
Office Address: 000 XXXXXXXX XXXXXXXXX
XXXXXXXXX, XX. 00000
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"ATTACHMENT A"
PERFORMANCE GOALS COMPENSATION
a). One Percent (1%) of the Net Profit of the Company as determined by the Board
of Directors.
b). Specific performance goal compensation will be decided on a later date not
to exceed a one year period from the signing of this Agreement.
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"ATTACHMENT B"
EMPLOYEE STOCK OPTION PLAN
a) Executive will have the right to purchase Options that represent Five
hundred thousand (500,000) shares of Common Stock at One dollar and
forty-five cents ($1.45) per share within Five (5) years of the signing
of this Agreement.
b) Executive will have the right to purchase Options (*) that represent 4
million one hundred twenty one thousand one hundred twenty eight
(4,121,128) shares of Common Stock at thirty-four cents ($0.34) per
share within the period defined in section 2b of the Company's stock
option plan agreed on January 1, 1999.
(*) These Options are absolute and not subject to adjustment for reverse stock
splits, recapitalization or similar actions that may result in a decrease in the
number of shares outstanding. The price of these Options is the $0.34 closing
price on June 29, 2001 of "ACDP" on the NASDAQ- OTC BB.
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