Exhibit 10.5
EMPLOYMENT AGREEMENT
Xxxxx X. Xxxxxx
This Employment Agreement (this "Agreement") is made as of October 1, 2001,
by DrugMax, Inc., a Nevada corporation (the "Employer"), and Xxxxx X. Xxxxxx, an
individual resident of Pinellas Park, Florida (the "Employee").
WITNESSETH
1. Employment. The Employer hereby employs the Employee and the Employee
hereby accepts such employment, upon the terms and subject to the conditions set
forth in this Agreement. By execution of this Agreement, the Consulting
Agreement by and between the Employer and the Employee, dated August 16, 1999,
with a termination date of April 15, 2002, is hereby cancelled and superseded by
this Agreement.
2. Term. The term of the employment under this Agreement shall be for a
period of fifteen months beginning October 1, 2001, and terminating on December
31, 2002, unless such employment is otherwise terminated as provided in
paragraphs 8 and 9 of this Agreement.
3. Compensation; Reimbursement, Other Benefits.
(a) The basic compensation to the Employee shall be payable bi-weekly
based upon a calendar-year annual base salary of $144,500 (the "Annual
Base Salary"). Such salary shall be subject to an annual performance
review but any adjustment shall not result in an annual salary less
than the Annual Base Salary. The Employee shall also be reimbursed for
all reasonable expenses incurred on behalf of the Employer.
(b) The Employee shall be entitled to such other benefits as the Board of
Directors and/or any Compensation and Stock Option Committee of the
Board of Directors may from time to time provide to him, specifically,
the approved recommendations of the Compensation Committee's Bonus
plan as set forth on September 19, 2001.
4. Duties. The Employee is engaged as the Chief Executive Officer and
Chairman of the Board of the Employer, and shall have such duties consistent
with such offices as may from time to time be reasonably assigned to him by the
Board of Directors of the Employer. Employee's office shall be located at 0000
Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000.
5. Extent of Services. During the term of his employment under this Agreement,
the Employee shall devote such time and efforts to the business of the Employer
as may be reasonably necessary in the normal course of business. Employee is
Chairman of numerous companies and it is understood that he will not be
dedicating his full time efforts to Employer.
6. Vacation and Days Off. The Employee shall be entitled to such vacation time
during each fiscal year of the Employer as he may qualify for, in accordance
with any vacation policy
from time to time established by the Employer's Board of Directors.
Notwithstanding the foregoing, the Employee shall be entitled to an annual
vacation of not less than four (4) weeks, during which time his compensation
shall be paid in full.
7. Disability, Illness and Incapacity.
(a) During the term of this Agreement, for any period of disability,
illness or incapacity which renders the Employee at least temporarily
unable to perform the services required under this Agreement, the
Employee shall receive his full compensation as set forth in paragraph
3 of this Agreement, provided, however, if the Employee's disability,
illness or incapacity extends beyond a period of ninety (90) day
period, to any further compensation under paragraph 3(a) until he
returns to a full-time service hereunder, but he shall be entitled
only to such disability payments as may be provided by a disability
insurance policy or policies, if any, purchased by the Employer.
(b) Successive periods of disability, illness or incapacity will be
considered separate periods unless the later period of disability,
illness or incapacity is due to the same or related cause.
(c) If and when the period of disability, illness or incapacity of the
Employee totals ninety (90) days, his employment with the Employer
will terminate. Notwithstanding the foregoing, if the Employee and the
Employer agree, the Employee may thereafter be employed by the
Employer upon such terms as may be mutually acceptable.
(d) Any dispute regarding the existence, extent or continuance of the
disability, illness or incapacity shall be resolved by the
determination of a majority of three competent doctors who are not
employees of the Employer, one of which shall be selected by the
Employer, one of which shall be selected by the Employee and a third
selected by the other two doctors. The Employer shall pay the doctor's
fees and other charges associated with such determination.
8. Death. All rights of the Employee hereunder, shall terminate upon his
death, except that the Employer shall pay to the estate of the Employee such
compensation and other amounts as would otherwise have been payable to the
Employee through the end of the month in which his death occurs. The Employer
shall have no additional financial obligation under this Agreement to the
Employee or his estate.
9. Other Termination.
(a) The Employer may terminate the employment of the Employee hereunder
without notice for any of the following reasons:
(i) The Employee's failure to promptly and adequately perform the
duties assigned to him by the Employer pursuant to paragraph 4
above,
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including, but not limited to, failure to follow the reasonable
direction of the Board of Directors of the Employer, or those of
any supervisors or superiors of the Employee, provided, however,
that the Employer shall give the Employee written notice
specifying the areas in which the Employee has failed to
promptly and adequately perform his duties hereunder and
Employee shall have thirty (30) days after receipt thereof to
improve his employment to the reasonable satisfaction of the
Employer.
(ii) The Employee's material breach of any provision of this
Agreement; or
(iii) "Good cause", as defined below.
(b) The term "good cause" as used in this Agreement includes, but is not
necessarily limited to, habitual absenteeism, a pattern of conduct
which tends to hold the Employer up to ridicule in the community,
conviction of a felony or any crime of moral turpitude, abuse of, or
substantial dependence on, as reasonably determined by the Board of
Directors of the Employer, any addictive substance, including but not
limited to alcohol, amphetamines, barbiturates, methadone, cannabis,
cocaine, PCP, THC, LSD, or other illegal or narcotic drugs. If the
Employee disputes any determination of abuse or substantial dependence
made by the Board of Directors, the parties hereto agree to abide by
the decision of a panel of three physicians who are not employees of
the Employer, one of which shall be selected by the Employer, one of
which shall be selected by the Employee and a third selected by the
other two physicians. The Employee agrees to make himself available
for and submit to examinations by such physicians as may be directed
by the Employer. The Employee's failure to submit to any such
examination shall constitute a material breach of this Agreement.
(c) The Employee may terminate this Agreement for "Good Reason". For
purposes of this Agreement, Good Reason means (i) a request by the
Employer for the Employee to relocate to a facility more than 50 miles
from Youngstown, Ohio or (ii) the Employer's material breach of any of
its obligations under this Agreement or (iii) the shareholder sells
more than 505 of the voting securities of the Employer.
(d) If the Employee's employment with the Employer is terminated pursuant
to paragraph 9(a), the Employer shall pay to the Employee any
compensation earned but not paid to the Employee prior to such
termination. Such payment shall be in full and complete discharge of
any and all liabilities or obligations of the Employer to the Employee
hereunder, and the Employee shall be entitled to no further benefits
under this Agreement, except as otherwise specifically provided in the
last sentence of paragraph 3(a) and in paragraph 3(b) of this
Agreement. If the Employee's employment with the Employer is
terminated by the Employer for a reason other than as provided in
paragraph 9(a) or by the Employee pursuant to paragraph 9(c), the
Employer will compensate the Employee, as severance pay, the Annual
Base Salary for the remaining term of this Agreement. Such severance
pay will be paid to the Employee at the date of termination.
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10. Confidentiality. The Employee agrees to keep in strict secrecy and
confidence any and all information the Employee assimilates or to which he has
access during his employment by the Employer and which has not been publicly
disclosed and is not a matter of common knowledge in the fields of work of the
Employer. The Employee agrees that both during and after the term of his
employment by the Employer, he will not, without the prior written consent of
the Employer, disclose any such confidential information to any other person,
partnership, joint venture, company, corporation or other organization.
11. Waiver. The waiver by the Employer of a breach by the Employee of any of
the provisions of this Agreement shall not be construed as a waiver of any
subsequent breach by the Employee.
12. Binding Effect; Assignment. The rights and obligations of the Employer
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employee. This agreement is a personal employment
contract and the rights, obligations and interests of the Employee hereunder may
not be sold, assigned, transferred, pledged or hypothecated.
13. Entire Agreement. This Agreement contains the entire agreement of the
parties and supersedes all prior agreements and understanding, oral or written,
with respect to the subject matter hereof. This Agreement may be changed only
by an agreement in writing signed by both parties.
14. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretations of this
Agreement.
15. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida.
16. Notices. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by facsimile, email, or by
certified or registered mail, first class, return receipt requested, to the
parties at the following addresses, or such other address that a party may
hereafter give notice to the other party as provided herein:
If to the Employer: DrugMax, Inc.
00000 Xxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Chief Operating Officer
(000) 000-0000
With a copy to Counsel: Xxxxxxxx, Loop & Xxxxxxxx LLP
000 X. Xxxxxxx Xxxx. Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
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If to the Employee: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of this 11th day of October, 2001.
EMPLOYER:
DRUGMAX, INC.
By: /s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx
Title: President and Chief Operating Officer
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EMPLOYEE:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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