Exhibit 10.4
EMPLOYMENT AGREEMENT
XXXXXXXX X. XXXXXX
AGREEMENT, dated as of October 1, 1997 by and between QUALITY
PRODUCTS, INC., a Delaware corporation having its principal place of business at
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000 ("Employer") and Xxxxxxxx X. Xxxxxx
("Employee") residing at with an address 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000.
1. Capacity. Employer hereby employs Employee to serve as Vice President
and Chief Financial and Accounting Officer of the Employer, and Employee hereby
agrees to accept the foregoing employment.
2. Duties. Employee shall perform executive duties and assume executive
responsibilities consistent with Employee's position in Employer. Employee
agrees to devote his full business time and attention to the performance of his
duties hereunder. Employee shall be entitled to perform his duties hereunder at
such locations in North America as he, in his reasonable discretion determines
(the "Office"), and nothing herein shall be construed to require Employee to
relocate. Employee's duties shall include: (a) consultation with the Company's
accounting personnel and independent auditors with respect to the preparation of
quarterly and annual financial statements for the Company ad its subsidiaries
and the annual audit thereof; (b) the preparation of the Company's and its
subsidiaries' federal, state and local income and other tax returns; and (c)
providing assistance and guidance to the Company's management with respect to
financial statement and tax matters pertaining to the Company. The Company
acknowledges that Employee is a certified public accountant who is currently
self-employed full time and will remain self-employed or otherwise employed full
time apart from his employment with the Company. Employee shall devote such time
to his duties hereunder as is reasonably necessary to allow Employee to complete
such duties on a timely basis, but Employee will not be required to devote any
particular portion of his time and attention to the performance of his duties
hereunder.
3. Term of Agreement. Subject to the provisions of Paragraph 5 hereof, the
term of this Agreement (the "Term") shall commence as of the date hereof and
continue until September 30, 2000.
4. Compensation. During the Term, Employer will pay to Employee and
Employee will accept from Employer an annual salary of Thirty Thousand ($30,000)
Dollars, payable in equal installments at Employer's usual payroll intervals.
Employee shall be reimbursed for all reasonable and necessary out-of-pocket
business expenses (including without limitation, travel and long distance
telephone costs related to the Employer's business) incurred by him during the
course of his employment on behalf of the Employer; provided, however, that the
Employer shall not be responsible for Employee's expenses of maintaining an
Office apart from the Company's principal administrative office.
5. Termination.
This Agreement may be terminated for any of the following reasons:
(a)Upon the death of Employee, the Agreement and the Term shall be
deemed terminated as of the date of death.
(b)Employer may, upon ten (10) business days written notice to Employee,
terminate the employment of Employee and the Term hereof in the event that (i)
Employee shall be convicted of or plead guilty (which shall include a plea of
nolo contendre) to a misdemeanor involving dishonesty or moral turpitude or a
felony; (ii) Employee's "permanent and total disability" as such term is used by
Section 22(e) of the Internal Revenue Code of 1986, as amended; (iii) an
illegal, immoral or unethical act by the Employee resulting in or intended to
result, directly or indirectly, in gain to the Employee or a third party at the
expense of the Employer, (iv) the Employee's willful engagement in misconduct
that results in material injury to the Employer or (v) the Employee's continuing
inability for whatever reason, or willful and continued failure, to
substantially perform the Employee's duties to the Employer or a breach of the
Employee's duties to the Employer which remains uncured within thirty (30) days
after a written demand for cure is delivered to the Employee by the Employer,
which demand specifically identifies the manner in which it is believed that the
Employee has not substantially performed his duties or has breached a duty.
6. Partial Invalidity. In the event any one or more of the
provisions of this Agreement shall be judicially held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the extent
of such invalidity, illegality or unenforceability, but the remainder of this
Agreement shall not in any way be affected thereby. If, moreover, any one or
more of the provisions contained in this Agreement shall, for any reason, be
held to be excessively broad as to time, duration, geographical scope, activity
or subject, it shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
7. Notices. All notices and other communications which are required
or which may be given under this agreement shall be in writing and shall be
deemed to have been duly given or made: if by hand, immediately upon delivery;
if by Federal Express, Express Mail or any other overnight delivery service,
upon receipt; and if mailed by registered or certified mail, return receipt
requested, two days after mailing. All notices, are to be given or made to the
parties at the addresses set forth on the first page of this Agreement (or to
such other address as either party may designate by notice in accordance with
the provisions of this paragraph).
8. No Waiver. The waiver by Employer or Employee of a breach of any
provision of the Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach by the other party.
9. Binding on Successors. This Agreement shall inure to the benefit
of and shall be binding upon Employee, his heirs, executors, administrators, and
legal representatives, and shall inure to the benefit of and be binding upon the
Employer and its successors and assigns. The obligations of Employee may not be
delegated and Employee may not assign, transfer, pledge, encumber, hypothecate
or otherwise dispose of this Agreement, or any of his rights hereunder, and any
such attempted delegation or disposition shall be null and void and without
effect.
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10. Miscellaneous. This Agreement constitutes the entire
understanding between the parties hereto relating to the subject matter of this
Agreement, superseding any and all prior written or prior or contemporaneous
agreements, proposals or understandings, and no commitments by either party
implied or otherwise outside of this Agreement shall be binding on the parties
hereto unless expressly set forth herein. This Agreement will be interpreted and
construed in accordance with the laws of the State of Ohio applicable to
agreements executed and to be performed wholly within such state. The parties
consent to the jurisdiction and venue of the federal and state courts in
Columbus, Ohio, New York, New York and Wilmington, Delaware for the resolution
of any dispute hereunder. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. This Agreement may be executed in
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 hereto have hereunto set their hands
and seals on the date first above set forth.
QUALITY PRODUCTS, INC.
/S/ XXXXX X. XXXXXX
BY:------------------------------
XXXXX X. XXXXXX, President
/S/ XXXXXXXX X. XXXXXX
BY:----------------------------------
XXXXXXXX X. XXXXXX
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