Exhibit 10.19
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement, entered into as of January 1, 1999, by and
between ACCIDENT PREVENTION PLUS, INC., a Nevada corporation (the "Company"),
and XXXX XXXX XXXXXX (the "Executive").
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 January 1, 1999, the Company hereby
employs Executive as Secretary of the Board of Directors and Executive Vice
President and Executive hereby agrees to serve the Company as 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
Chief Executive Officer and President of the Company, provided that such duties
and responsibilities are consistent with Executive's position which will include
the establishing, coordinating and overseeing the engineering and design staff
and all aspects of product development and technical research including the
compilation of specifications and manuals. Executive agrees to perform
faithftilly 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 January 1, 1999 and shall be for an initial term of one (1)
year; and thereafter the Employment period shall be renewed and extended for a
period of up to Five (5) consecutive One (1) year periods based on a majority
vote of the Board of Directors 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.
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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 (410,000), payable in accordance
with the company'scustomary payroll practices throughout the Employment Period,
subject to Section 5 hereof However, for the first Six (6) months of this
Agreement, Executive agrees to defer one half of this salary which will be
accrued and paid at a later date.
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 January 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 warrants 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.
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's disability, or
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health, medical or similar plans which are from time to time in effect and which
the Company offers to its employees. All costs associated with individual
medical insurance will be paid by the Company. The Company shall also provide
Executive with corporate credit cards which 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
Five hundred dollars ($500) shall be approved by the President of Company or the
Chief Financial Officer.
(c) Automobile. If requested by the Executive, the Company shall
reimburse Executive for up to Five hundred dollars ($500.00) 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. The Company shall reimburse Executive for all costs of
insurance for such automobile upon presentation by Executive of such supporting
information as the Company will require. In addition, there will be a car
expense allowance of One hundred fifty dollars ($150.00) per month to cover fUel
and servicing of vehicle if necessary 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
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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 Twenty four
(24) 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 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,
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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,
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
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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 ~ parte 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 j11 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 Sixty (60) 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
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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,
Executive's estate shall be paid by the Company 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.
(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.
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(iii) If Executive's employment shall be terminated for Cause,
Executive shall be paid the Base Salary, 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.
(iii) If the Executive leaves the Company with cause, the Company
reserves the right to buy back up to 75% of Executive's stock. The value of this
stock will be determined by the closing bid on the date of termination of
Executive and will be paid over a five year period based on an interest bearing
note provided to Executive. The fUnding of this "buyback" will be provided by an
insurance policy or other means specifically established for thjs purpose.
6. Notices.
For the purpose of this Agreement, notices and all other
conmunications 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 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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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.
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 frill force and effect.
9. Survial.
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,
distributees, 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 ex~ept that other provisions of this
Agreement which specifically or impliedly
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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. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party 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: /s/ Xxxx Xxxx Xxxxxx
Home Address: 0000, 00xx Xxx Xx.
Xx. Xxxxxxxxxx
Xxxxxxx 00000
ACCIDENT PREVENTION PLUS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
Office Address: 000 Xxxx Xxxxxx
Xxxxx 000
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 at 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 Warrants 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.
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