EXHIBIT 10.3
OCUREST LABORATORIES., INC.
0000 XXX XXXXXXXXX * SUITE 800 * XXXX XXXXX XXXXXXX, XX 00000
TEL (000) 000-0000
FAX (000) 000-0000
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of the 1st day of
December, 1993 by and between Ocurest Laboratories, Inc., a Florida corporation
(hereinafter called the "Company") and Xxxxxx X. Xxxxxx, Xx., hereinafter called
the ("Employee").
WHEREAS, the Company believes it is in the Company's best interest to
employ the Employee, and the Employee desires to be employed by the Company; and
WHEREAS, the Company and the Employee desire to set forth the terms and
conditions on which the Employee shall be employed by and provide his services
to the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. EMPLOYMENT: The Company hereby employs the Employee in its business as
President & Chief Executive Officer and the Employee hereby accepts such
employment, all upon the terms and conditions hereinafter set forth.
2. TERM: Unless sooner terminated pursuant to the provisions of this
Agreement, the initial term of employment under this Agreement shall be for a
period of three years, commencing January 1, 1994 (the "Initial Term"). Such
period of employment shall be extended automatically for successive one-year
terms of employment after the Initial Term, unless either the Company or the
Employee notifies the other in writing at least ninety (90) days prior to the
end of the current term that it or he will not renew such Employment Period for
another term, in which case such Employment Period will expire at the end of the
current term. Any such notice of termination shall be irrevocable unless
otherwise subsequently agreed upon in writing by the parties. All references
herein to the "Employment Period" shall refer to both the Initial Term and such
successive terms.
3. BASE SALARY: The employee shall be entitled to receive a base salary
during the Employment Period at the rate of Seventy Five Thousand Dollars
($75,000) per annum starting January 1, 1994 (the "Base Salary"); provided,
however, the Base Salary shall be increased to One Hundred Twenty Five Thousand
Dollars ($125,000)
per annum in the month Ocurest shipments commence in any portion of the State of
Florida and One Hundred Fifty Thousand Dollars ($150,000) in the seventh month
following the start of Ocurest shipments in the designated Florida area. Such
salary shall be payable in accordance with the normal payroll policies of the
Company, and shall be subject to all appropriate withholding taxes; provided,
however, such salary shall be payable no less frequently than monthly and no
later than the fifteenth (15th) day of each such month. The annual salary set
forth in this Paragraph shall be subject to review and upward adjustment from
time to time, at the sole discretion of the Board of Directors of the Company
("Board"). An adjustment to the amount of Base Salary, if any, shall not
otherwise be deemed a modification, amendment or waiver of this Agreement
except as to the Base Salary amount.
4. INCENTIVE COMPENSATION: In addition to the Base Salary, the Employee
shall be eligible to receive incentive compensation pursuant to an incentive
compensation plan to be established under the direction of the Chief Executive
Officer of the Company on terms satisfactory to and approved by the Board in its
discretion.
5. DUTIES: During the Employment Period the Employee shall report directly
to the Board and shall furnish all manner of services in connection with his
position an President & Chief Executive Officer of the Company as would be
expected from a person holding a similar position in a similar company. The
Employee shall have the primary responsibility for oversight of the business of
the Company, including the hiring and firing of employees, disbursement of funds
and final decision-making authority as to all matters not otherwise requiring
final approval by the Board. The Employee shall devote his full time, energy and
skill to the service of the Company and the promotion of its interests, and
shall use his best efforts in the performance of his services hereunder.
6. CONFIDENTIALLY: In the course of the Employee's employment hereafter,
the Company may disclose or make known to the Employee, and the Employee may be
given access to or may become acquainted with, certain confidential information,
trade secrets or both, including but not limited to marketing techniques,
pricing, customer lists and information relating to potential customers
(collectively "Information"), as well as financial records, documents, reports,
correspondence, lists, other written records, and the like relating to the
foregoing (collectively, the "Materials"). During the Employment Period and at
all times thereafter, the Employee shall not in any manner, directly or
indirectly, divulge, disclose or communicate to any person or firm, except to or
for the Company's benefit, any of the information or Materials which he may have
acquired in the course of his employment by the Company. Promptly upon
termination of the Employment period, or otherwise upon request of the Company,
the Materials and all copies thereof in the custody or control of the Employee
shall be delivered to the Chairman of the Board or his designee.
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7. DEATH OR INCAPACITY: In the event of the permanent incapacity of the
Employee, defined as ninety (90) days continuous incapacity or one hundred
twenty (120) days of intermittent incapacity in any twelve (12) month period, as
determined by the Board at its sole discretion, or the death of the Employee
during the Employment Period, the Employee's employment hereunder shall
terminate immediately upon such death or determination of incapacity. The
Company shall thereupon be obliged to pay to the Employee or the Employee's
estate all Base Salary amounts owed to the Employee which have accrued until the
date of such death or determination of incapacity plus six months of the
Employee's Base Salary. All such amounts shall be payable in accordance with the
normal payroll policies of the Company.
8. TERMINATION: The Company shall be entitled to terminate the employment
of the Employee for "just cause" or without cause. The Employee shall be
entitled to terminate his employment for any reason. For purposes of this
Agreement, "just cause" is herein defined as any conduct by the Employee
involving the commission of any criminal act, act of moral turpitude, any
fraudulent or dishonest act in connection with his employment with the Company,
or a material breach of any provision of this Agreement which material breach
results in a loss to the Company as determined by the Board. Any decision by the
Company to terminate the Employee without cause shall be made by majority vote
of the Board.
Any termination of the Employment Period other than by death, determination
of permanent disability or just cause shall require no less than thirty (30)
days prior written notice from the party requesting termination to the other. In
the event of termination of the employment of the Employee by the Employee or by
the Company for just cause, the Employee shall not be entitled to any severance
pay and shall only be paid the Base Salary amounts accrued through the date of
termination. In the event of termination of the employment of the Employee
without cause by the Company, the Employee shall be entitled to Base Salary
amounts accrued through the date of termination plus severance pay equal to the
greater of (i) one year's Base Salary or (ii) the balance of the Base Salary
which, but for termination, would have been payable over the remainder of the
Initial Term (the "Severance Pay"). The Severance Pay shall be due and payable
in one (1) lump sum within (30) days at the date of termination.
9. SURVIVAL: Notwithstanding anything to the contrary herein, the
provisions of paragraphs 6 and 10-14 shall survive and remain in effect in
accordance with their respective terms in the event the Agreement or any portion
hereof or the Employment Period is terminated.
10. VENUE AND GOVERNING LAW: Venue for all proceedings shall be in any
court of competent jurisdiction in Palm Beach County, Florida. This Agreement
and all transactions contemplated by this Agreement shall be governed by, and
construed and enforced
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in accordance with, the laws of the State of Florida without regard to
principles of conflicts of laws.
11. AMENDMENTS: The provisions of this Agreement may be amended or
otherwise modified only with and by the written mutual consent of both parties.
12. BINDING EFFECT: All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors
legal representatives, heirs and successors.
13. SPECIFIC PERFORMANCE: The Employee acknowledges that the services to
be rendered by the Employee hereunder are extraordinary and unique and are vital
to the success of the Company, and that damages at law would be an inadequate
remedy for any breach or threatened breach of this Agreement by the Employee.
Therefore, in the event of a breach or threatened breach by the Employee of any
provision of this Agreement, then the Company shall be entitled, in addition to
all other rights or remedies, to injunctions restraining such breach, without
being required to show any actual damage or to post any bond or other security.
14. ENTIRE AGREEMENT: This Agreement represents the entire agreement and
understanding among the parties with respect to the subject matter hereof, and
supersedes a similar agreement dated June 1, 1993 and all other negotiations,
understandings and representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written.
OCUREST LABORATORIES, INC.
BY: /s/ XXXXXXX X. XXXXX
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TITLE: CHAIRMAN
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/s/ XXXXXX X. XXXXXX, XX.
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Xxxxxx X. Xxxxxx, Xx.
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