EXECUTIVE EMPLOYMENT AGREEMENT
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AGREEMENT, dated as of September 30, 1998, between HealthCore Medical
Solutions, Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxx (the
"Employee").
WHEREAS, the Company desires to retain the services of the Employee,
and the Employee desires to provide such services to the Company, on the terms
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment and Duties.
(a) The Company hereby employs the Employee, and the Employee
accepts employment, to serve as Chief Executive Officer of the Company and to
perform such duties consistent with his current responsibilities and as may
reasonably be assigned to him from time to time by the Company's Board of
Directors. The Employee shall also serve without additional compensation as
Chairman of the Board of Directors of the Company, if so elected or appointed.
(b) The Employee hereby agrees to perform such duties, to
fulfill such responsibilities and to serve the Company faithfully, industriously
and to the best of his ability, subject to the direction and control of the
Company's Board of Directors. The parties hereto acknowledge that Employee shall
not be required to devote more than 50% of his working time to his
responsibilities hereunder and that Employee shall not be restricted in his
abilities to pursue other business interests during the remaining portion of his
working time.
2. Term; Termination.
Except in the case of earlier termination as hereinafter
specifically provided in Paragraph 4, this Agreement shall be effective as of
September 30, 1998 and the term hereof and the Employee's employment hereunder
shall continue until November 30, 2000 (the "Initial Term"). This Agreement
shall be renewed automatically for successive one year terms thereafter (each, a
"Renewal Term") unless either party gives not less thin 30 days prior written
notice to the other party that such party elects to have this Agreement
terminate at the end of the Initial Term or the then current Renewal Term.
3. Compensation; Expenses; Benefits.
(a) As compensation for his services hereunder in whatever
capacity rendered, the Company shall pay the Employee a salary, payable in
accordance with the Company's standard payroll practices with respect to senior
officers of the Company and/or its
affiliated corporations, at a rate of $150,000 per year; provided, that such
salary shall be increased to $200,000 for the twelve month period commencing
December 1, 1998. Such salary may be increased, but not decreased by the Board
of Directors and shall be reviewed by the Board no less frequently than
annually. Such salary and the Employee's employee benefits provided pursuant to
Paragraph 3 hereof shall continue to be paid and provided, regardless of any
illness or incapacity of the Employee, until this Agreement is terminated.
(b) The Employee shall also be entitled to receive such
bonuses as the Company's Board of Directors or Compensation Committee, if any,
may deem appropriate. The Employee shall also be entitled to participate in the
Company's employee stock option plan, as may be determined by the Company's
Board of Directors or Compensation Committee, if any.
(c) The Employee and the Employee's spouse and children, if
any, shall be entitled to participate in all employee benefit plans generally
available from time to time to the senior officers of the Company, so long as
such benefits comply with applicable law (including without limitation the
Internal Revenue Code and ERISA). In addition, Employee shall be entitled to
annual vacation in accordance with Company policy at such times as are mutually
convenient to Employee and the Company.
(d) The Employee shall be entitled to advances or
reimbursement in accordance with the Company's standard business practices for
his ordinary and necessary business expenses incurred in the performance of his
duties hereunder provided that his claims therefor shall be supported by the
documentation required by the Company in accordance with its usual practice.
(e) The Company shall supply a luxury automobile to Employee
for his use and shall pay all costs, including insurance, associated therewith.
(f) The Company shall pay the yearly premium during the
Initial Term and any subsequent Renewal Term on a term life insurance policy for
the Employee in the amount of $2,000,000 under which the Employee's estate shall
be the beneficiary.
4. Termination of Employment. If any of the following events occur
before the expiration of the Term, Employee's employment with the Company shall
terminate upon the occurrence of such event:
(a) Employee's death, or, in the event that the Company
maintains disability insurance for the Employee, any illness, disability or
other incapacity that renders Employee physically unable regularly to perform
his duties hereunder for a period in excess of one hundred eighty (180) days.
The determination regarding whether Employee is physically unable regularly to
perform his duties hereunder shall be made by the Company's Board of Directors
in the reasonable, good faith exercise of their judgment.
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(b) Thirty (30) days after the Company gives Employee written
notice of the termination of Employee's employment if said termination is for
cause. For purposes of this Paragraph 4(b), "cause" is defined as (i) Employee's
conviction of a crime constituting a felony or involving moral turpitude or (ii)
an act by Employee of material dishonesty or fraud in connection with Employee's
performance of his duties to the Company.
5. Representations, Warranties and Covenants of Employee. The Employee
represents, warrants and covenants to and with the Company that (a) he is not
and will not become a party to any agreement, contract or understanding, whether
employment or otherwise, and that he is not subject to any order, judgment or
decree of any court or governmental agency, which would, in any way, restrict or
prohibit him from undertaking or performing his employment in accordance with
the terms and conditions of this Agreement and (b) he is of sufficient physical
and mental health to fulfill his duties, obligations and responsibilities under
the terms of this Agreement.
6. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in that state.
(b) Notices. All notices, consents and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given when (a) delivered by hand (with receipt confirmed), (b) sent by telex or
telecopier (with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by Express Mail, Federal Express or other express delivery
service (receipt requested), in each case to the appropriate addresses and
telecopier numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate as to itself by notice to the other parties):
If to the Employee:
Xxxx X. Xxxxx
1325 Avenue of the Americas, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
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If to the Company:
HealthCore Medical Solutions, Inc.
00000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
with a copy to:
Bachner, Tally, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(c) Entire Agreement; Amendment. This Agreement shall
supersede all existing agreements between the Employee and the Company relating
to the terms of his employment. This Agreement may not be amended except by a
written agreement signed by both parties.
(d) Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(e) Assignment. Subject to the limitations below, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, representatives, successors and assigns. This
Agreement shall not be assignable by the Employee, and shall be assignable by
the Company only to an affiliate of the Company or any corporation resulting
from the reorganization, merger or consolidation of the Company with any other
corporation or any corporation to which the Company may sell all or
substantially all of its assets.
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IN WITNESS WHEREOF, the parties hereto have each executed this
Executive Employment Agreement as of the day and year first above written.
HEALTHCORE MEDICAL SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Operating
Officer
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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