EMPLOYMENT AGREEMENT
This Agreement is made as of March 15, 1997 by and between American Buyers Club
International, Inc., a corporation duly organized and existing under the laws of
the state of Delaware ("Employer"), having an office and principal place of
business at 000 Xxxxxxx 00, Xxxxxxxxx, Xxx Xxxxxx 00000, and Xxxxxx Xxxx, an
individual whose address is 0 Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
("Employee").
WHEREAS, Employer wishes to employ Employee and Employee is willing to accept
such employment upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Employer and Employee hereby agree
as follows:
1. Nature of Agreement:
1.1 Employment. Employer agrees to employ Employee and Employee
agrees to accept such employment by Employer upon the terms
and conditions herein provided.
1.2 Cancellation of Prior Offers. Any and all prior contracts of
employment or offers or representations with respect thereto
are hereby cancelled and void in all their terms and
conditions. Commencing with the date first above written, the
terms, covenants and conditions of Employee's employment by
Employer shall be governed solely by the provisions of this
Agreement.
2. Employment and Duties:
2.1 Employment. Commencing on March 15, 1997 and continuing
through December 31, 1998 (the "Termination Date"), Employee
shall be employed by Employer as President, reporting directly
and solely to the Board of Directors. During such period of
employment Employee shall devote his full time and effort to
the business and affairs of Employer, will use his best
efforts to promote the interests of Employer and will
discharge his responsibilities in a diligent and faithful
manner consistent with sound business practices. Employee may
engage in such other and additional activities not in conflict
with the business or activities of Employer as Employee may
desire and may serve as a consultant to or be employed or
engaged (but not on a full time basis) by any other persons or
entities provided that he shall first disclose such proposed
activities, in writing, to the board of directors and that the
board shall not object.
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2.2 Place of Employment. Employee shall occupy offices to be
provided by Employer in Manalapan, New Jersey, or such other
place as Employer shall select, to be maintained for the use
of Employee by and at the sole expense of Employer. Employer
shall supply Employee with secretarial and support services,
computer systems and other office machinery and such other
materials and services as Employee shall reasonably require,
in order to carry out his duties hereunder.
2.3 Business Opportunities. Employee shall disclose to Employer
all business opportunities of which Employee becomes aware
during the term of this Agreement, whether or not such
opportunities are directly related to the existing business of
Employer.
3. Compensation:
3.1 Employee shall receive a salary of $78,000 per annum until
April 11, 1997 and $100,000 per annum thereafter, payable in
equal weekly installments. Employee shall be entitled to two
weeks of vacation each year which, if not taken by Employee
shall be forfeited. Employee shall be entitled to sick leave
based upon policies which the Board of Directors of Employer
shall establish.
3.2 Expenses and Benefits. Employee shall receive benefits
provided by Employer for other employees at the level of
Employee.
3.3 Stock Options. Employee shall be entitled to participate in
any stock option plan established my Employer for the benefit
of Employees of the Company. Such participation and any grant
of options to Employee shall be subject in all respects to
the terms and conditions of such plan or plans and to the
discretion of the Board of Directors with respect
thereto.
4. Termination of Agreement:
4.1 Events of Termination. The employment of Employee shall
terminate prior to the end of the term of this Agreement or
any renewal term, as the case may be, under any of the
following circumstances.
(a) The death of Employee.
(b) In the event that Employee shall substantially fail to
perform his duties hereunder by reason of any medically
determinable physical or mental impairment that can be
expected to result in death or which has persisted or can be
expected to persist for a continued period of at least six
months, Employer shall have the right, by notice sent by
registered mail to Employee at Employee's residence or
business address, to terminate Employee's employment hereunder
as of a date (not less than four months after the date of the
sending of such notice) to be specified in such notice.
Employee shall be conclu-sively presumed to be so disabled
when so certified by a physician who is acceptable to Employee
and Employer.
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(c) In the event of Employee's willful and continuing gross
neglect of his duties or his willful and continuing failure to
perform his duties, which continues for more than thirty days
following his receipt of written notice from Employer that
describes such gross neglect or failure.
(d) If Employer breaches its obligations to Employee hereunder
in any material respect and Employer does not cure such breach
within thirty days of having received notice of such breach,
Employee may terminate this Agreement by giving notice to
Employer.
4.2 Employee's Entitlements Upon Termination - General. In the
event that Employee's employment hereunder shall terminate
pursuant to any of the provisions of section 4.1(a) or (b)
hereof Employee (or of his estate in the event of his death)
shall be entitled to receive all unpaid compensation which
shall have accrued through the date of termination payable as
a lump sum cash payment without any offset, not later than ten
calendar days after termination of the Employee's employment.
5. Renewal of Agreement:
5.1 Employer's Renewal Rights. This Agreement shall be
automatically renewed for two successive one year periods
commencing on January 1 of each of the two years commencing
with 1998 (each of which periods is hereinafter referred to as
a "Renewal Term"), provided however that Employer may elect to
cease such automatic renewal and terminate this Agreement at
the end of the term hereof, or the then Current Renewal Term,
as the case may be, giving written notice of such non-renewal
not less than 60 days prior to the then Current Term or
Renewal Term of this Agreement sent to Employee at his then
address of record with Employer. All of the terms, covenants
and conditions of this Agreement shall govern Employee's
employment by Employer during each Renewal Term.
6. Noncompetition, Nonsolicitation and Confidential Information:
6.1 Employee shall not disclose to any person or entity (other
than to Employer's board of directors or to others as
required, in his judgment, in the due performance of his
duties under this Agreement) any confidential or secret
information with respect to the business or affairs of
Employer or any of its subsidiaries or affiliates.
6.2 Employee agrees that for a period commencing on the date he
becomes subject to this Agreement and ending one year after
the date of termination of this Agreement he will not directly
or indirectly disturb, entice or hire away or in any other
manner persuade any employee, consultant, dealer, supplier,
vendor, or customer of Employer to discontinue that person's
or firm's relationship with or to Employer as an employee,
consultant, dealer, supplier, vendor or customer, as the case
may be.
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6.3 Notwithstanding the generality of the foregoing, nothing in
this Agreement shall be deemed to preclude Employee from
participating in other business opportunities not directly
competitive with the business of Employer provided that
Employee's activities with respect to such opportunities do
not have any material adverse effect on the performance of
Employee's duties hereunder.
6.4 The trade secrets of Employer are hereby defined as including:
a) Suppliers to Employer of any products, goods, or
services of any kind;
b) The prices paid by Employer for such products, goods
and services;
c) The customers of the Employer;
d) The methods and results of the research of Employer;
e) All information concerning sales made by Employer to
any and all customers;
f) The methods used or to be used by Employer in
connection with the conduct of its business; and
g) Any other confidential information or data relating
to the business of Employer which is not publicly
known. The trade secrets of Employer do not include
such data or information which was proprietary to the
Employee personally prior to the date of this
Agreement.
6.5 Employee agrees that he will not, either during his employment
or at any after cessation of such employment, impart or
disclose any of such trade secrets to any person, firm or
corporation other than Employer, or use any of such trade
secrets directly or indirectly for his own benefit or for the
benefit of any person, firm or corporation other than
Employer.
6.6 Employee further recognizes and agrees that any violation of
his agreement in this section 6 would cause such damage or
injury to Employer as would be irreparable and the exact
amount of which would be impossible to ascertain. Therefore,
the Employee agrees that Employer shall be entitled as a
matter of right to an injunction from any court of competent
jurisdiction restraining any further violation by the Employee
of Employee's agreements contained herein. Such rights to an
injunction shall be cumulative and in addition to and not in
limitation of any other rights and remedies Employer may have
at law or in equity.
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6.7 Employee agrees that the provisions of this section 6 are
reasonable and necessary for the protection of Employer and
that each provision herein set forth, including, without
limitation, the period of time, geographical area and types
and scope of the restrictions on his activities specified
therein are intended to be and shall be divisible. The
Employee further acknowledges the reasonableness of these
provisions as an integral part of his sale of stock of
Employer to Recorp America as of the date hereof. If any
provision contained herein, including any sentence, clause or
part thereof, shall be held contrary to law or invalid or
unenforceable in any respect the remaining provisions shall
not be affected but shall remain in full force and effect.
6.8 Employee agrees that all memoranda, notes, records, charts,
formulae, specifications, lists and other documents made,
compiled or received, held or used by the Employee which are
employed by Employer concerning any phase of Employer's
business or operations or its trade secrets shall be
Employer's property and shall be delivered by the Employee to
Employer on the termination of the Employee's employment or at
any earlier time at the request of Employer.
6.9 Employee further agrees that he will, for a period of three
years following the termination of his employment for any
reason, keep Employer informed of the names and addresses of
the persons, firms or corporations by, for or whom he may,
from time to time, be employed or act as agent and Employee
also agrees that if during such year he conducts any business
on his own account or is a partner he will keep Employer
informed of that fact and of the general nature, names and
addresses of such business conducted from time to time.
7. Entire Agreement.
This Agreement constitutes the entire understanding of the parties
hereto and supersedes any and all prior agreements and understandings
whether oral or written between the parties. This Agreement may be
modified only by an agreement in writing executed by Employee and the
Chief Executive Officer of Employer referring to the particular
provisions hereof being modified. This Agreement may not be modified by
any implied understanding or agreement notwithstanding any statements
or conduct of the parties occurring subsequent to the formation of this
Agreement.
8. Miscellaneous:
8.1 Interpretation of this Agreement. This Agreement shall be
interpreted in accordance with the plain meaning of its terms
and not strictly for or against party hereto.
8.2 Variation. Any variation in compensation or conditions which
may occur after the effective date of this Agreement shall not
constitute a new agreement but the terms and conditions of
this Agreement except as to such variation shall continue in
force.
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8.3 Unenforceability. In the event that any provision of this
Agreement shall be determined by any court of competent
jurisdiction to be unenforceable or other invalid as written
the same shall be enforced and validated to the extent
permitted by law. All provisions of this Agreement are
severable and the unenforceability or invalidity of any single
provision hereof shall not affect the remaining provisions.
8.4 Collateral Documents. Each party hereto shall make, execute
and deliver such other instruments or documents as may be
reasonably required in order to effectuate the purposes of
this Agreement.
8.5 Assignability. This Agreement shall not be assignable by
Employee. This Agreement shall not be assignable by Employer
without the prior written consent of Employee except to a
corporation which is the surviving entity in any merger
involving Employer or to a corporation which acquires all or
substantially all of the stock or assets of Employer.
8.6 No Waiver. The failure of a party to insist on any occasion
upon strict adherence to any term of this Agreement shall not
be considered to be a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. Any waiver must be in
writing.
8.7 Indemnification. The indemnification provisions for officers,
directors, employees and agents under Nevada law and the
Company's bylaws shall, to the maximum extent permitted by
law, be extended to Employee, during the period following his
termination for any reason, with respect to any and all
matters, events or transactions occurring or effected during
the Employee's period of employment with Employer. Employee
shall indemnify Employer from and against any claims, expenses
and liabilities, including attorney's fees, resulting from
Employer's breach of any of the provisions of this Agreement.
8.8 New Jersey Law to Apply. Except as provided in Paragraph 6.7
above, this Agreement shall be governed by and construed in
accordance with the laws of New Jersey applicable to contracts
between New Jersey residents entered into and to be performed
entirely within New Jersey.
8.9 Death of Employee. If the Employee should die before all
amounts payable to him under this Agreement have been paid,
such unpaid amounts shall be paid to Employee's spouse, of
living, otherwise to the personal representative of Employee's
estate.
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8.10 Notices. Any notices to be given hereunder to any party must
be in writing and must be effected by personal delivery or by
registered or certified mail, postage pre-paid with return
receipt requested. Mailed notices shall be directed to the
parties at the addresses appearing below. Either party may
change the address by giving written notice in accordance with
this section. Notices delivered personally shall be deemed
communicated as of actual receipt; mailed notices shall be
deemed communicated as of three business days after deposit
with the United States Postal Service or within one day after
deposit with a courier service such as Federal Express.
EMPLOYER:
American Buyers Club International, Inc..
000 Xxxxxxx 00
Xxxxxxxxx, Xxx Xxxxxx 00000
EMPLOYEE:
Xxxxxx Xxxx
0 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
8.11 Gender and Number. Whenever the context of this Agreement
permits the masculine, feminine and neuter shall each include
the other, and the singular shall include the plural.
8.12 In any action taken by either Employer or Employee to enforce
any of the provisions of this Agreement, or for compensation
or other relief as a result of the breach of this Agreement,
the attorney's fees and disbursements of the prevailing party
in such litigation shall be paid by the non-prevailing party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"EMPLOYER"
AMERICAN BUYERS CLUB INTERNATIONAL, INC.
By:____________________________
Xxxxx Xxxxxx, Vice President
"EMPLOYEE"
----------------------------
Xxxxxx Xxxx
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