Exhibit 10.04
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered this 14th day of February 2003, 2003 by and
between CJC ENTERPRISES OF NEW YORK, INC., a New York corporation (the
"Company") and XXXXXX XXXXX, having offices at 0000 Xxxxxx Xxxxxxx Xxxx, Xxxxxx,
Xxx Xxxx ("Employee")
W I T N E S S E T H:
WHEREAS, the Company currently employs Employee as its President and Chief
Executive Officer; and
WHEREAS, the Company desires that Employee continue in the employ of the Company
in his present position, or in a position that has substantially equal or
greater responsibility, compensation and benefits, and Employee desires to so
continue in the employ of the Company, upon the terms and conditions set forth
in this Agreement; and
WHEREAS, Employee, by reason of the nature of Employee's duties, will be
provided access to the Company's trade secrets and other confidential
information and the Company desires to maintain the confidentiality of such.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. Duties. The Company hereby employs Employee, and Employee agrees to
serve the Company, as its President and Chief Executive Officer, for the term(s)
set forth in Section 2 below. During the term of his employment hereunder (the
"Term"), Employee shall be the President and chief executive officer of the
Company, responsible for the overall direction of the Company and supervision of
the management of the Company. To the extent set forth in the Company's by-
laws, as from time to time amended, Employee shall have such additional duties
and powers as may be appropriate. During the Term, Employee agrees to devote
such of his time and efforts to the business and affairs of the Company as he in
his sole discretion reasonably determines is necessary or desirable, and to use
his best efforts to promote the interests of the Company. At any time during
the Term that the Employee has been elected as a member of the Company's the
Board of Directors (the "Board"), Employee shall serve as a Director of the
Company, and as a member of committees of the Board, for no additional
compensation beyond that provided for herein. Nothing herein contained shall
prevent Employee fro engaging in other employment, including similar employment
for unrelated companies.
2. Term. The Term shall be for a period of ten years commencing on the date
hereof, subject to the termination provisions set forth in Sections 3 and 7
hereof.
3. Compensation. The Company covenants and agrees that, in consideration of
the services performed hereunder, it will pay to Employee at its regular and
customary intervals a salary at the following annual rates during the Term:
First Year $26,000 Second Year $31,200 Third through Tenth Years
To be determined by the Board
In no event shall Employee's salary for the Third through tenth years be less
than $35,000 per year.
Notwithstanding anything herein to the contrary, during any period of the Term
during which Employee's salary is determined by the Board, Employee may
terminate this Agreement on not less than thirty days written notice to the
Company. Upon such termination by Employee, Employee shall be entitled to
receive and shall be paid by the Company his salary in effect on the date of
termination, paid at the Company's regular and customary intervals for the
payment of salaries for a period of six months thereafter. In addition, during
such period Employee shall continue to receive his benefits described in Section
4 hereof as in effect at the date of termination. Upon such termination,
Employee shall also be entitled to receive and shall be paid by the Company any
bonus earned and accrued through the date of termination. Employee shall accept
such payments and benefits in full discharge and release of the Company of and
from any further obligations under this Agreement.
4. Benefits. Employee shall be entitled to the following benefits during
the Term:
(a) Employee shall be entitled, in accordance with the Company's
general policies for senior management, to participation in any
pension, savings, stock option, employee stock ownership and profit-
sharing plans, incentive/performance awards, paid vacation, leave,
health, casualty, disability and life insurance and other employment
benefits as are made available from time to time by the Board The
Company shall not make any changes in any employee benefit plans or
arrangements provided during the term of this Agreement that would
materially adversely affect Employee's rights or benefits thereunder,
unless such change occurs pursuant to an amendment applicable to all
senior management and/or employees of the Company and does not result
in a proportionately greater reduction in the rights of, and benefits
to, Employee as compared with any other member of senior management
and/or employees of the Company.
(b) During the Term, Employee shall be entitled to prompt
reimbursement of all reasonable expenses actually paid or incurred by
Employee in the performance of his duties hereunder, in the course of
and pursuant to the business of the Company, to promote the interests
of the Company or otherwise pursuant to the policies and procedures of
the Company.
(c) Employee shall be entitled to four weeks of paid vacation in
each calendar year (pro rated in any calendar year during which
Employee is employed under this Agreement for less than an entire
year) during the Term. Employee shall also be entitled to all paid
holidays given by the Company to its senior management.
5. Disability. In the event that Employee shall be incapacitated by reason
of mental or physical disability during the term of his employment such that he
is substantially prevented from performing his principal duties and services
hereunder for a period of 45 consecutive days, or for shorter periods
aggregating 90 days during any 12-month period (a "Disability"), the Company
thereafter shall have the right to terminate Employee's employment under this
Agreement by sending written notice of such termination to Employee or his legal
representative and thereupon his employment hereunder shall immediately
terminate. Upon such termination, Employee shall be entitled to receive and
shall be paid by the Company his salary in effect on the date of termination,
paid at the Company's regular and customary intervals for the payment of
salaries for a period of one year. In addition, during such period Employee
shall continue to receive his benefits described in Section 4 hereof as in
effect at the date of termination. Upon such termination, Employee shall also be
entitled to receive and shall be paid by the Company any bonus earned and
accrued through the date of termination. Employee shall accept such payments and
benefits in full discharge and release of the Company of and from any further
obligations under this Agreement. Such discharge and release shall not affect
any rights or remedies which may be available to Employee otherwise than under
this Agreement.
6. Death. In the event of Employee's death during the Term, his designated
beneficiary or, if no such beneficiary shall have been designated by Employee,
the estate of Employee, shall be entitled to receive and shall be paid by the
Company Employee's salary in effect on the date of his death, paid at the
Company's regular and customary intervals for the payment of salaries for a
period of one year subsequent to such death. In addition, upon Employee's death
such beneficiary or estate shall be entitled to receive and shall be paid by the
Company any bonus earned and accrued through the date of death. Such payments
shall be in full discharge and release of the Company of and from any further
obligations, under this Agreement. Such discharge and release shall not affect
any rights or remedies which may be available to Employee otherwise than under
this Agreement.
7. Termination for Cause.
(a) The Company shall have the right to terminate the employment of
Employee hereunder for cause (as used herein, "Cause") at any time if:
(i) Employee shall be convicted by a court of competent and
final jurisdiction of any crime (whether or not involving
the Company) which constitutes a felony in the jurisdiction
involved or shall be habitually drunk or intoxicated in
public or otherwise commit acts of moral turpitude in such
a manner as to materially and adversely reflect upon the
reputation of the Company; or
(ii) Employee shall commit any act of embezzlement or similar
material dishonest and injurious conduct against the
Company; or
(iii) Employee shall willfully and materially fail or refuse to
perform his duties and responsibilities as required by this
Agreement, provided that termination of Employee's
employment pursuant to this subsection 7(a)(iii) shall not
constitute valid termination for Cause unless Employee
shall first have received written notice from the Board
stating specifically the nature of such failure or refusal
and affording Employee at least ten days to correct the
complained of act or omission. For purposes of this
subsection, no act, or failure to act, on Employee's part
shall be considered "willful" unless done, or omitted to be
done, by him (x) not in good faith, and (y) without
reasonable belief that his action or omission was in the
best interests of the Company.
(b) In the event that the employment of Employee shall be terminated by
the Company for Cause pursuant to subsection 7(a)(i) or (ii) hereof,
Employee shall be entitled to receive his salary and bonus then in
effect up to the date of such termination. In the event that the
employment of Employee shall be terminated by the Company for Cause
pursuant to subsection 7(a)(iii) hereof, Employee shall be entitled to
receive his salary and bonus then in effect through the date which is
one month following the date of termination. Employee shall accept
payment pursuant to this subsection 7(b) in full discharge and release
of the Company of and from any further obligations under this Agreement.
Nothing contained in this Section 7 shall constitute a waiver or release
by the Company of any rights or claims it may have against Employee.
8. Attorneys' Fees. In the event of any litigation arising out of or
relating to this Agreement, the unsuccessful party in such litigation shall pay
to the successful party all costs and expenses incurred therein by the
successful party, including, without limitation, reasonable attorneys' fees, and
including costs and attorneys' fees for all appellate proceedings, which costs,
expenses and fees shall be included in and made a part of any judgment or award
rendered in such litigation.
9. Notices. All notices, requests, demands, waivers, consents, approvals or
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been given when received by the recipient if delivered
personally or by overnight courier, or five days after being sent if sent by
certified or registered mail, postage prepaid, return receipt requested, to the
following addresses:
If to the Company: CJC Enterprises of New York, Inc
000X Xxxx Xxxxxx
Xxxx Xxxxxxxx, Xxx Xxxx
If to Employee: Xxxxxx Xxxxx
0000 Xxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxx Xxxx
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
10. Entire Agreement: Amendment. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and shall not be
modified or affected by any offer, proposal, statement or representation, oral
or written, made by or for either party. Whenever the masculine pronoun is used,
it includes the feminine pronoun, and the singular includes the plural, and vice
versa, where the context requires. This Agreement may not be amended or modified
except by an instrument in writing signed by the Company and Employee.
11. Severability. Successors and Assigns. Should any provision or clause hereof
be held to be invalid, such invalidity shall not affect any other provision or
clause hereof which can be given effect without such invalid provision. This
Agreement shall inure to the benefit of and be binding upon the Company, its
successors and assigns and upon Employee and his heirs, executors,
administrators, or other legal representatives.
12. Laws Applicable and Exclusive Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York and
exclusive venue shall lie in the state and federal courts in the State of New
York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
year and date first above written.
CJC ENTERPRISES OF NEW YORK, INC
___/s/ Xxxxxx Cella___________________________
By Its: President
_/s/ Xxxxxx Cella_____________________________
XXXXXX XXXXX
