EMPLOYMENT AGREEMENT
THIS AGREEMENT, is effective as of the 1st day of March 1998,
between STERITEK, INC., a New Jersey corporation, having its principal
place of business at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
(the "Corporation") and Xxxxx X. Xxxxxxx, residing at 000 Xxx
Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Employee")
WITNESSETH:
WHEREAS, the Corporation is engaged in the business of
contract packaging for the pharmaceutical and cosmetic industries
and providing a physicians' facsimile database and transmission system;
and
WHEREAS, Employee has experience and knowledge in the business in
which the Corporation is involved and wishes to remain a full-time
employee of the Corporation; and
WHEREAS, the Corporation wishes to employ Employee as Vice
President and Chief Financial Officer, and to be employed in such
capacity (the "Position") upon the terms and conditions hereinafter
set forth.
NOW THEREFORE, in consideration of the foregoing and mutual
covenants herein contained, the parties agree as follows:
1. Employment
(a) The Corporation hereby employs Employee to serve in the
Position and Employee hereby accepts such employment. Employee will
devote his full-time and attention, during normal business hours,
to performing all duties assigned or delegated to him by the President
of the Corporation.
(b) Employee will be required to discharge his duties in the
Position in accordance with the rules and regulations of the
Corporation.
(c) On a periodic basis during the term of this Agreement,
Employee will be required to provide the President of the Corporation
with periodic reports on his employment activities on behalf
of the Corporation.
2. Compensation
(a) For his services hereunder, Employee shall receive a base
salary of $125,000 per year, payable on the Corporation's regular
paydays. In addition, the Employee shall be entitled to receive a bonus,
in the amounts and at the times as shall be determined by the Board
of Directors of the Corporation.
(b) The Employee's base salary shall be reviewed by the Board
of Directors on an annual basis and upon such review, shall be increased
in such amount as the Board of Directors, in its discretion, determines,
but in no event shall such increase be less than five percent (5%)
of the Employee's base salary for the previous year.
(c) In addition to the base salary to which Employee is entitled
under Section 2 (a), Employee shall be entitled to participate in
fringe benefit plans which the Corporation may offer or establish from
time to time for employees of equal or lesser rank; provided, however,
that this provision shall not require that the Corporation establish
or continue any specific fringe benefit plan. The Employee shall be
provided a new company car at least every three years, of a
model commensurate with his position and as approved by the President.
(d) All compensation paid to Employee shall be subject to the
customary withholding of taxes as required by law.
3. Business Expenses
(a) The parties acknowledge that Employee may incur, from time to
time, for the benefit of the Corporation, and in furtherance of
the Corporation's business, various expenses such as travel,
entertainment and promotional expenses. The Corporation agrees that it
shall either pay such expenses directly, advance sums to Employee to be
used for payment of such expenses, or reimburse Employee for such
expenses incurred by him, subject to the approval of such expenses
by the Board of Directors of the Corporation.
(b) Employee agrees to submit to the Corporation such documentation
as may be reasonably necessary to substantiate the expenses
paid or reimbursed pursuant to this Article 3.
4. Performance of Employment. Employee will observe and comply
with such reasonable rules, regulations and policies as may from time to
time be established, in writing, by the Board of Directors of the
Corporation or his designee.
5. Vacation. Each year during this Agreement, Employee shall
be entitled to not less than five (5) weeks vacation per year and
additional leave to attend business related conventions, meetings,
and programs, all without reduction in salary hereunder in accordance
with the Corporation's standard vacation policy. Vacation and other
leave shall be taken on reasonable prior notice to the Board of Directors
of the Corporation or his designee and at a time and manner which shall
not interfere with the proper operation of the business of the
Corporation.
6. Employment Conduct and Confidential Information
(a) Employee shall at all times during the term of this
Agreement observe and conform to all the laws regulating the business
of the Corporation.
(b) Employee recognizes that during the term of this Agreement, he
will necessarily become privy to certain confidential and
proprietary information of the Corporation (hereinafter referred
to as "Confidential Data"). Confidential Data shall be considered to
be all information, not otherwise public knowledge, concerning the
identity of the Corporation's customers and suppliers, technical and
business activities, plans, operations, pricing and procedures,
which Confidential Data is designated in writing to be confidential
or proprietary. Employee agrees that he will hold all Confidential
Data in the strictest confidence and that he will not disclose to any
person entity for any reason nor use any Confidential Data in any way
other than on behalf of the Corporation or as the Corporation may
otherwise direct.
(c) Employee agrees that all business records and files, including
but not limited to memoranda, notes and proposals pertaining to the
business, products or processes of the Corporation, shall be the
sole property of the Corporation and he shall not retain, remove or copy
such materials during the term of this Agreement or upon its termination
or expiration, without the prior express written consent of the Board
of Directors of the Corporation. Upon the termination of this Agreement
or at any other time upon the request of the Board of Directors,
Employee shall deliver all such materials to the Corporation.
7. Term of Employment. The term of this Agreement shall be for
ten (10) years commencing on March 1, 1998 and ending on February 29,
2008. Thereafter, this Agreement shall automatically renew for
successive one (1) year terms, unless either party gives sixty
(60) days written notice of his or its intent not to renew prior to
the end of the then current term.
8. Termination of Employee.
(a) Disability. If, during the term of this Agreement,
Employee becomes physically or mentally disabled so as to become
unable for a period of more than six (6) consecutive months to perform
his duties hereunder on substantially a full-time basis as determined
by the Corporation (in its sole reasonable discretion), Employee's
total compensation shall be reduced to 50% of his base salary. If
Employee's disability continues for six (6) additional consecutive
months, the Corporation may, at its option, terminate Employee's
employment hereunder without further financial obligation, effective
as of the end of the twelfth (12th) consecutive month of disability
except as stated hereafter. For purposes of this provision, separate
periods of disability shall be counted as continuous if separated by
less than thirty (30) days, but the periods of separation shall
not be counted for purposes of calculating the total period of
disability.
(b) Cause. The Corporation may terminate Employee's employment
under this Agreement for "cause", at any time during the initial
or any renewal term, without further financial obligations hereunder.
1. For Purposes of this Agreement, the term "cause" for
immediate termination shall mean: (i) Employee being convicted of a
crime of the first or second degree, as evidenced by a final judgement,
order or decree of a court of competent jurisdiction; or (ii) any
act of gross negligence or gross misconduct on the part of Employee
with respect to his duties under this Agreement. For purposes of
this provision, gross negligence or gross misconduct shall
include embezzlement, theft or similar criminal conduct or fraud.
2. Cause for termination on thirty (30) days written notice
shall mean Employee's material breach of this Agreement. For purposes
of this provision, a material breach of this Agreement shall include
conduct or damage to property by the Employee which is materially
injurious to the Corporation or its business, gross incompetence,
gross insubordination, or any material violation by the Employee
of any reasonably express direction of his corporate superiors. If
the alleged breach of this Agreement is failure to comply with an oral
rule, regulation or policy, Employee must have been provided with
written notice of the rule, regulation or policy and of his alleged
non-compliance therewith before his conduct may be deemed breach of
this Agreement triggering a right to terminate upon thirty (30) days
written notice.
In the event that Employee cures the alleged cause for termination
(a "default") as set forth in this Section 8(b)(2) during the thirty (30)
day period, or if such default cannot be completely cured within such
thirty (30) day period, he uses his best efforts to cure such default
and continues same diligently, this Agreement shall not terminate;
provided, however, that this Agreement shall thereupon
automatically terminate if such default is not cured for any reason
within ninety (90) days after delivery of such notice to Employee.
9. Inventions, Creations and Discoveries. Employee acknowledges
that during the course of his employment he may, either alone or
in conjunction with others, be responsible for the creation or development
of inventions, processes, materials or property (hereinafter referred
to as "Materials"). Employee agrees that he will disclose all such
Materials to the Board of Directors of the Corporation.
Employee acknowledges that all such Materials developed during the
term of this Agreement shall be the property of the Corporation
whether or not patent or copyright applications are filed with
respect thereto from the date of their conception. If an
assignment is necessary to transfer ownership thereof to the
Corporation, Employee agrees that this Agreement, without more,
shall constitute such an assignment. At the Corporation's request,
Employee shall be required to make or assist in the filing of
letters of patent, copyright applications or the like with respect
to such materials. All such filings shall be made, if possible, in
the name of the Corporation, at its expense. If such filings are
required after the termination of Employee's employment by the
Corporation, he shall receive reasonable compensation for his assistance.
If made during the term of his employment, Employee shall receive
no additional compensation therefor.
10. Assignment Prohibited. This Agreement is personal to each
of the parties hereto and neither party may assign or delegate any of
its rights or obligations hereunder without first obtaining the
written consent of the other.
11. Continuity of Contract. Corporation is prohibited from
merging or consolidating with any other corporation or business
or from selling its Businesses outright unless the succeeding or
surviving corporation or business expressly assumes the rights
and obligations of the Corporation herein set forth with amendment.
12. Amendments. No amendments or additions to this Agreement
shall be binding unless in writing and signed by both parties.
13. Governing Law. This Agreement shall be governed in all
respects by the laws of the State of New Jersey.
14. Paragraph Heading. The paragraph headings used in this
Agreement are included solely for convenience and shall not affect or
be used in connection with the interpretation of this Agreement.
15. Waiver, Modification, Cancellation. Any waiver,
alteration or modification of any of the provisions of this Agreement
or cancellation or replacement of this Agreement shall not be valid unless
in writing and signed by all of the parties hereto.
16. eirs and Successors. This Agreement shall be binding upon
the Corporation, Employee and their successors, heirs, assigns,
personal representatives and transferees.
17. Entire Agreement. This Agreement contains the entire
agreement of the parties regarding the subject matter hereof and
supersedes all prior agreements, understandings and negotiations
regarding the same.
18. Waiver. The waiver by either party of a breach of any
provisions contained herein must be in writing and shall in no
way be construed as a waiver of any succeeding breach of such
provision or the waiver of the provision itself.
19. Notice. Whenever under the provisions of this Agreement
notice is required to be given, it shall be in writing and shall be
deemed given when (i) hand delivered; (ii) delivered by overnight
courier; (iii) transmitted by facsimile transmission and first class
mail; or (iv) mailed, postage prepaid by registered or certified mail,
return receipt requested, addressed to the Corporation or Employee at
their addresses as set forth on the first page of this Agreement.
Either party hereto may change his or its address for purposes
of this Agreement by notification to the other party in accordance with
this Paragraph.
20. Arbitration. If either party feels that the other party
is in breach of this Agreement or any other dispute in connection with
this Agreement arises between the parties, such claim or dispute
shall be submitted to binding arbitration. Either party may
initiate arbitration by giving written notice to that effect to the
other party. Within ten (10) days after service of such written notice,
each party shall designate one arbitrator. The two arbitrators so
named shall designate a third arbitrator, who shall be an attorney
licensed to practice law in the State of New Jersey, to act as the
head arbitrator; provided, however, that should the partisan
arbitrators be unable to agree upon a third arbitrator, then the
third arbitrator shall be named by a Judge of the Superior Court
of New Jersey sitting in Bergen County or the American
Arbitration Association upon the application of either party.
The Arbitration shall be conducted in accordance with the
then prevailing rules of the American Arbitration Association. In
connection with the arbitration, the arbitrators shall, at the
request of either party, direct that discovery be provided.
If the arbitration concerns whether a termination of Employee's
Employment was for cause, the Corporation shall have the burden
of establishing that cause existed by a preponderance of the evidence.
In rendering their decision and award, the arbitrators shall not
add to, subtract form or otherwise modify the provisions of this
Agreement, but rather shall be bound thereby. Unless the
arbitrators expressly provide in their award for a different
allocation of costs and expenses, each party shall bear its own
costs and expenses in connection with the arbitration and the
costs and expenses of the arbitrators shall be borne equally.
Judgement upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof. It is
expressly recognized, however, that no claim with respect to this
Agreement may be raised b either party unless such claim is raised
within two (2) years from the date on which the claim or cause
of action accrued.
21. Counterparts. The Agreement may be executed by the parties
hereto on any number of separate counterparts and all such counterparts
taken together shall constitute one and the same instrument. A
facsimile mail transmission of this document executed by a party
to this Agreement shall be treated as an original.
22. Attorney Review. Employee acknowledges that he has been
advised to have this Agreement reviewed by an Attorney at Law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the date first above written.
ATTEST: STERITEK, INC.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
President and Chief
Executive Officer
WITNESS: EMPLOYEE
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
