Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made this 1st day of July, 1998, between Marbo Inc., a
Delaware Corporation, and Xx X. Xxxxxxxx ,the executive Employee.
1. EMPLOYMENT AND TERM
A) The word "Company" as used in this agreement shall refer to and
include Marbo, Inc. and its subsidiaries, affiliates, successors and all related
companies.
B) The Company shall employ Executive and the Executive shall be
employed by the Company for a term beginning July 1, 1998 and continuing until
June 30, 2001 unless executive is terminated or terminates employment for
reasons contained herein.
2) SALARY, BONUS, EXECUTIVE EMPLOYEE BENEFITS
A) The Board of Directors of the Company shall annually set and adjust
the salary and determine bonuses to the Executive based on Executive's
performance, Company success, other executive raises and bonuses and relevant
factors. The base salary will be $25,000 annually and the Board has the right to
increase.
B) All executive insurance and fringe benefit policies apply to the
Executive.
3) POSITION AND DUTIES
A) The Executive shall serve as Vice President of the Company pursuant
to the power of the Board of Directors to install and remove officers. The
Executive shall perform to the best of his abilities all executive duties
assigned to him by the Board of Directors on behalf of the Company and/or all
subsidiaries and interests of the Company. Particularly, but not instead of
including the generality of the foregoing, the Executive agrees that his various
responsibilities and duties to the Company's subsidiaries d.b.a. Gladstone's
Grilled Chicken , will be materially increased in comparison with prior duties
performed by the Executive for such subsidiaries and that the increase of such
duties shall not diminish his various responsibilities and duties to the
Company. The executive shall devote his full time and best ability to the
performance of all assignments with the exception of reasonable vacation,
illness or disability time. The Executive shall always conduct himself in a
manner that maintains the good reputation of the Company, its shareholders,
subsidiaries and related interests. The Executive shall not directly or
indirectly undertake or accept other employment without having obtained the
prior approval of the Board of Directors of the Company. This shall not prevent
the Executive from investing his assets in a business whose operation or affairs
will not require significant service from the Executive. In addition this shall
not require the Executive to divest himself of ownership in or management of any
investments or business he currently may have.
B) The executive shall be a member of the Board of Directors of the
Company pursuant to the power of its shareholders to elect and remove Directors.
4. TERMINATION BY COMPANY FOR CAUSE
Underthis Agreement, if the Executive violates any of his obligations to the
Company, his employment may be terminated at the Company's option after a thirty
(30) days written notice specifying the alleged violation has been issued to and
received by the Executive and in those thirty days the Executive shall have
failed to comply with his obligations. Under this agreement if the Executive's
employment should be terminated for the above-mentioned cause, the Executive
shall be entitled to the following.
1) Salary to the termination date.
2) Any promised bonus unpaid by the Company.
3) All benefits that may be due him under the Company's profit sharing,
pension, stock option or other plans.
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5. TERMINATION AT OPTION OF COMPANY
Under this Agreement the Company reserves the right to terminate the Executive's
employment at its option and without cause upon giving the Executive a minimum
of sixty (60) days written notice. In the event of termination pursuant to this
paragraph, the Company shall be obligated to pay the Executive the following:
1) The remaining salary that would have become due and payable during
the period from the date of termination to the end of the full term of
employment herein, calculated at the existing salary paid to the
executive.
2) Any promised bonus unpaid by the Company.
3) All benefits that may be due him under the Company's profit sharing,
pension, stock option or other plans.
The amounts due to the Executive under clauses 1) and 2) of this paragraph will
be payable without interest in essentially equal monthly installments over the
period from the date of termination to the end of the full term of employment.
6. TERMINATION BY EXECUTIVE FOR CAUSE
A) Under this Agreement if the Company violates any of its obligations
to the Executive, the Executive may terminate his employment for cause at his
option, at any time, upon giving the Company a minimum of sixty (60) days
written notice provided that the occurrence of such violation shall have
occurred within that sixty (60) days and that the Company shall have failed to
comply with such obligations for thirty (30) days after receipt of such notice.
If the executive terminates his employment for cause as provided for in this
paragraph, all rights and benefits shall be due him as stated in paragraph 5
with regard to termination at the Company's option.
7. DISABILITY
A) If the Executive should become unable to perform his normal duties
for a cumulative period of six (6) months in any twelve (12) month consecutive
period due to illness, accident or other disability, the Company or the
Executive may terminate his employment upon giving the other party a minimum of
thirty (30) days written notice. Such notice may be presented at any time in the
twelve (12) month consecutive period or reasonably soon thereafter. Should such
termination result, the Executive shall remain entitled to the following:
1) All benefits to the extent the Executive has participated in under
illness, accident, disability, health, hospitalization, or insurance
policies of the Company.
2) Salary to the date of termination.
3) Severance pay equal to six (6) months salary.
4) Any promised bonus unpaid by the Company.
5) All benefits, if any, that may be due him under the Company's
profit-sharing, pension, stock option, or other plans.
The premiums upon all illness, accident, disability, health and hospitalization
plans shall continue in force or be paid by the Company to the extent in which
the Executive has participated until the Executive reaches the age of sixty-five
(65) or dies, whichever is first.
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B) The Board of Directors of the Company shall determine, in good
faith, whether the Executive shall have been unable to perform his duties herein
for the period stated in 7A. The determination of the Board of Directors of the
Company shall be final and binding in every instance upon the Executive and the
Company subject only to the merit of its judgment being made in good faith.
8. DEATH
A) Upon the death of the Executive, this Agreement shall be terminated.
In the event of death, the Executive's estate shall be entitled to any bonus
promised and yet to be paid by the Company.
B) In consideration of the services that the Executive has to the
present performed on behalf of the Company and in consideration of the services
yet to be performed by the Executive in compliance with this Agreement, the
Company shall pay the executive's "total annual compensation" if the executive
dies during his term of employment as follows:
1) "Total Annual Compensation" in this context shall be the average of
all compensation, bonuses included, (paid by the Company, its
subsidiaries, affiliates and all related Companies to the Executive for
the period of three (3) calendar years immediately preceding his
death.)
2) The payments shall continue for three (3) years from the Executive's
date of death, paid on a monthly basis with no interest.
3) The payments shall be made to the Executive's surviving spouse. If
the spouse shall have predeceased the Executive, or dies subsequently
and before the three (3) years expiration, the payments shall be made
to the spouse's estate. Under this subparagraph, at the option of the
Board of Directors of the Company, any amounts that are to be paid to
the Executive's surviving spouse's estate may be made in one lump sum.
9. CONFIDENTIAL INFORMATION
The Executive agrees that he will not disclose to any person, agency, firm or
Corporation any information confidential to the Company, its subsidiaries,
affiliates or related business related to their sources of supply, customers,
prices, employees, finances or other Company related information for the term
beginning with his employment date until June 30, 2004.
10. ASSIGNMENT, SUCCESSORS, ETC.
Under this Agreement neither the rights nor the obligations herein may be
assigned by any party, except that such assignment shall be binding upon and
take effect for the benefit of any successor of the Company created by merger,
reorganization, sale of assets or otherwise.
11. INSURANCE ON EMPLOYEE
A)The Executive agrees that the Company may continue or terminate and
may periodically apply for and take out life, health, accident or other
insurance on the Executive in its own name and at its own expense in whatever
sum the Company may deem necessary to protect its interests. The Executive also
agrees to submit to the customary medical examinations and to fill out, execute
and deliver all applications or other instruments in writing as is reasonably
required by any or all insurance companies to which any or all applications are
made by or for the Company in order to aid the Company in procuring the
insurance. The Executive further agrees that he shall have no right, title or
interest in or to any of the insurance policies the Company may take out in his
name.
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12. NOTICES
Under this Agreement, any notice shall be sufficient if in writing and sent by
registered mail addressed as follows:
A) If to the Company, addressed to Corporate Secretary
Marbo, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
B) If to the Executive, addressed to
Xx X. Xxxxxxxx
0000 Xxxxxx Xxxx.
Xxxx, Xx. 00000
Either party may change the address specified herein by giving written notice of
the change to the other party as herein provided.
13. YEAR TO YEAR EXTENSION
This Agreement shall continue in effect on a year-to-year basis beyond the
initial employment term, expiration date June 30, 2001, unless one party gives
written notice to the other of intention to terminate the extended agreement in
effect for at least one hundred and twenty (120) days prior to the end of the
calendar year, 2001, and not less than sixty (60) days prior to the end of any
following year.
14. ARBITRATION
Any controversy or claim resulting from or relating to this Agreement or breach
thereof shall be subject to arbitration in Florida to be settled in accordance
with the existing rules of the American Arbitration Association. The initiating
party shall give the other party notice of his or its intention to arbitrate.
Such notice shall explain the nature of the dispute, if money, the amount
disputed, resolution sought and the name and location of the initiating party's
arbitrator. Within fifteen (15) days of the receipt of such notice, the other
party shall give the initiating party notice of the name and address of his or
its arbitrator. If he/it fails to do so within the specified fifteen (15) days,
the American Arbitration Association will select a second arbitrator at the
request of the initiating party. Within fifteen (15) days after the selection
date of the second arbitrator, the two chosen arbitrators shall select a third
arbitrator. If, within the specified fifteen (15) days the two chosen
arbitrators, however chosen, shall have failed to agree on a third arbitrator,
the American Arbitration Association shall select the third arbitrator at the
request of the initiating party. The arbitration shall commence twenty (20) days
after the selection of the third arbitrator. The award delivered by the
arbitrators may be entered for judgment in any court having the appropriate
jurisdiction. The party against whom or which the award is made shall pay all
costs and expenses of the arbitration, including (without limitation) reasonable
compensation to each arbitrator and counsel fees.
15. OTHER AGREEMENTS
This agreement supersedes any and all other agreements made by and between the
parties referred to herein (or their predecessors) that have or would apply to
the contents and subjects covered within this Agreement.
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16. GOVERNING LAW
This Agreement is made and shall be interpreted and carried out under the laws
of Florida.
17. ENTIRE AGREEMENT
The entire Agreement of and between the parties is contained within this
Agreement. It may not be changed or modified orally, but only by written
agreement enforcing the change, waiver, modification, extension or termination
and signed by the party against whom enforcement is sought.
IN WITNESS WHEREOF, both parties hereby set their hands and seals and agree that
the contents hereunder be executed by their appropriate Corporate officers as of
the first date above written.
MARBO, INC.
/S/ Xxxxxx Xxxxxx
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ATTEST:
/S/ Xxxx Xxxxxxxx
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Secretary
/S/ Xx X. Xxxxxxxx
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WITNESS:
/S/ Xxxx Xxxxxxxx
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