TERMINATION OF EMPLOYMENT AGREMENT AND RELEASE
THIS TERMINATION OF EMPLOYMENT AGREEMENT AND RELEASE ("Agreement") is made
and entered into this 7th day of May, 2004 by and between Critical Home Care,
Inc., a Nevada corporation (the "Company") and Xxxxx Xxxxxx ("Bensol").
WHEREAS, the Company and Bensol entered into a certain Employment Agreement
dated September 26, 2002 ("Employment Agreement"), wherein the Company agreed to
employ Bensol as its Chief Executive Officer, President and Chairman of the
Board;
WHEREAS, the Company, RDKA, Inc. ("RDKA"), Xxxx X. Xxxxxxx, XX ("Xxxxxxx"),
Xxxxxxxx Xxxxxxx ("Xxxxxxx") and others are parties to a certain Agreement and
Plan of Merger of an even date hereof ("Merger Agreement"), wherein Xxxxxxx and
Xxxxxxx agreed to exchange all of their shares of stock in RDKA for shares of
stock in Company;
WHEREAS, pursuant to the Merger Agreement and as a condition to RDKA,
Xxxxxxx and Xxxxxxx closing on the transactions contemplated by the Merger
Agreement, the Company agreed to employ Xxxxxxx as its Chief Executive Officer
and Chairman of the Board and Xxxxxxx as its President and Chief Operating
Officer;
WHEREAS, Bensol owns a substantial number of issued and outstanding shares
of stock in the Company and will derive a substantial personal benefit from the
consummation of the transactions contemplated by the Merger Agreement;
WHEREAS, Bensol in his capacity of a shareholder and member of the
Company's board of directors approved the Merger Agreement and agreed to resign
from the positions of Chief Executive Officer, President and Chairman of the
Board of Directors and to accept the position of Executive Vice President.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other valuable consideration the receipt and sufficiency of
which is hereby expressly acknowledged, the parties hereto agree as follows:
1. Resignation. Bensol hereby resigns from the positions of Chief Executive
Officer, President and Chairman of the Board of Directors, effective
immediately.
2. Termination of Employment Agreement. The Company and Bensol hereby agree
that effective immediately the Employment Agreement is terminated and that
neither the Company nor Bensol shall have any further rights, duties or
obligations under the Employment Agreement, except for the Excluded Claims (as
hereinafter defined).
3. Waiver and Release. Except for the Excluded Claims, Bensol hereby
waives, releases and forever discharges the Company, and its successors,
assigns, agents, stockholders, officers, directors and employees from any and
all claims, demands, rights, causes of action, obligations, and liabilities of
any nature whatsoever which he ever had, now has, or may claim to have against
the Company arising out of or in connection with his employment by the Company
including, without limitation, any rights under the Employment Agreement
("Released Claims"). Bensol expressly acknowledges and agrees that the Released
Claims shall include (i) any right to receive the annual bonus described in
Section 4.3 of the Employment Agreement and (ii) any right to receive the
severance, salary continuation or other payments described in Sections 5.1
through 5.5 of the Employment Agreement.
4. Excluded Claims. Excluded Claims shall only include (i) Bensol's right
to receive the unpaid portion of the Base Salary described in Section 4.1 of the
Employment Agreement that was earned and accrued through the date hereof and
(ii) Bensol's right to retain the Intial Stock Options described in Section 4.4
of the Employment Agreement, provided that all of the Initial Stock Options
shall remain subject to the terms contained in Section 4.4 of the Employment
Agreement.
5. Governing Law and Arbitration. This Agreement and all disputes arising
out of Executive's employment shall be governed by and construed in accordance
with the laws of the State of New York, notwithstanding the fact that either
party is or may hereafter become domiciled or located in a different state. Any
dispute, controversy or claim arising out of or relating to this Agreement or
Executive's employment, whether arising in contract, tort or otherwise shall be
resolved at arbitration in accordance with the rules of the American Arbitration
Association, except for any equitable or injunctive relief sought under this
Agreement. The parties agree that any arbitration award rendered on any claim
submitted to arbitration shall be final and binding upon the parties and not
subject to appeal and that judgment may be entered upon any arbitration award by
any court of competent jurisdiction.
6. Amendment of Agreement. The terms and provisions of this Agreement may
be altered or amended in any of its provisions only by the mutual written
agreement of the parties hereto.
7. Successors. The Agreement shall inure to the benefit of Company and its
successors and assigns.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all other previous or contemporaneous communications, representations,
understandings, agreements, negotiations and discussions, either oral or
written, between the parties. The parties acknowledge and agree that there are
no written or oral agreements, understandings, or representations, directly or
indirectly related to this Agreement that are not set forth herein.
9. Counterparts/Facsimile Signatures. This Agreement may be executed in two
or more counterparts and by facsimile signature, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
The parties hereto have signed this Agreement as of the date first above
written.
"COMPANY":
CRITICAL HOME CARE, INC.
By: /s/Xxxx X. Xxxxxxx, XX
Name: Xxxx X. Xxxxxxx, XX
Title: CEO
"BENSOL"
/s/ Xxxxx Xxxxxx
_____________________________________________________
Xxxxx Xxxxxx
