Exhibit 10.7
EMPLOYMENT AGREEMENT
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This Employment Agreement (hereinafter "AGREEMENT") is made by and
between Xxxx X. Xxxxxxxx, residing at c/o JCK Investments, 00 Xxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxx, XX 00000 (hereinafter "EMPLOYEE"), and X. XXXXXX, INC., Inc.
on behalf of itself, its subsidiaries, affiliates, predecessors, successors,
assigns; and their directors, officers, employees and agents (hereinafter
collectively referred to as "X. XXXXXX"), with its principal place of business
at 0000 Xxxxx 000 Xxxx, Xxxx, XX 00000.
This AGREEMENT replaces any and all prior employment agreements or oral
understandings between X. XXXXXX and EMPLOYEE and any prior employment
agreements are void.
WHEREAS, X. XXXXXX wishes to employ EMPLOYEE in its business and
EMPLOYEE wishes to work for X. XXXXXX; and
WHEREAS, EMPLOYEE possesses the requisite skills to assume the position
of President and in consideration of the rights and benefits described herein
wishes to assume the position of President.
NOW THEREFORE, for and in consideration of the mutual and respective
covenants and agreements contained herein, X. XXXXXX and EMPLOYEE agree as
follows:
ARTICLE 1
EMPLOYMENT
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1.1 X. XXXXXX shall employ EMPLOYEE in the position of President
for a period of two (2) years commencing on January 1, 2004 and continuing until
terminated as provided in Article 4 of this AGREEMENT.
ARTICLE 2
DUTIES
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2.1 During the terms of this AGREEMENT, EMPLOYEE shall
competently, diligently, and loyally devote all of EMPLOYEE'S business time,
attention, and energy to the business affairs of X. XXXXXX and to the proper
performance of EMPLOYEE'S duties as President. EMPLOYEE shall exercise
EMPLOYEE'S responsibilities from X. XXXXXX'X place of business in Ramsey, New
Jersey or such other location as is mutually agreed upon.
2.2 Pursuant to the procedures and directives established from
time to time by X. XXXXXX, EMPLOYEE agrees to keep X. XXXXXX informed as to any
and all matters which concern the business of X. XXXXXX and as to EMPLOYEE'S
activities as President. Further, EMPLOYEE agrees and understands that at all
times EMPLOYEE is subject to the supervision and control of X. XXXXXX'X Board of
Directors.
2.3 During the term of employment, EMPLOYEE may hold an interest,
directly or indirectly, as partner, officer, director, stockholder, consultant,
employee, or in any other capacity, in any business which is not directly and/or
indirectly competitive with the business of X. XXXXXX and its affiliated
companies.
2.4 If EMPLOYEE has a question at any time as to whether any
activity in which EMPLOYEE is involved or about to be involved is directly or
indirectly competitive with the business of X. XXXXXX and its affiliated
companies, EMPLOYEE shall immediately raise the issue with the Board of X.
XXXXXX and shall be conclusively bound by its determination as to whether the
activity is directly or indirectly competitive with the business of X. XXXXXX
and its affiliated companies, provided that such determination shall not be
arbitrary or unreasonable.
ARTICLE 3
COMPENSATION
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3.1 Salary. During the term of EMPLOYEE'S employment, X. XXXXXX
shall pay, and EMPLOYEE shall accept, a gross annual salary of $50,000.00,
payable weekly at $961.54 per week, less mandatory and authorized deductions.
The Board shall review EMPLOYEE'S performance annually to determine in its sole
discretion whether it should be increased.
3.2 Bonus. EMPLOYEE shall be reimbursed by X. XXXXXX for business
related expenses reasonably incurred in connection with the execution of
EMPLOYEE'S duties. Itemized expenses shall be submitted in accordance with the
X. XXXXXX'X procedures.
3.3 Employee Benefits. EMPLOYEE shall be entitled to participate
in and shall receive benefits under X. XXXXXX'X employee benefit plans under the
terms and conditions applicable to employees of EMPLOYEE'S level within X.
XXXXXX. These benefits presently do not yet exist. X. XXXXXX reserves the right
to change any and all benefit plans from time to time in its sole discretion.
3.4 Pension Benefits. EMPLOYEE shall be included in such employee
pension programs as X. XXXXXX maintains for other employees of a comparable
level in accordance with the terms and conditions of such pension programs
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applicable to participating employees. X. XXXXXX reserves the right to modify,
change or eliminate such pension plans at any time in its sole discretion. No
pension plan exists at this time.
ARTICLE 4
TERMINATION
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X. XXXXXX shall have the right to terminate this AGREEMENT under any of
the circumstances set forth below. If this AGREEMENT is terminated for any of
the reasons in paragraphs 4.1, 4.2 or 4.3, then EMPLOYEE will not be entitled to
any further compensation, except unpaid salary and/or unpaid business expenses.
If, however, this AGREEMENT is terminated for the reason set forth in paragraph
4.4, then EMPLOYEE shall be paid as provided in paragraph 4.4.
4.1 For Cause. X. XXXXXX may terminate EMPLOYEE'S employment for
such cause immediately and without advance notice or financial responsibility,
i.e. entitlement to severance payments. By way of illustration only, a
termination for such cause includes, but is not limited to the following: any
act of dishonesty, insubordination (direct and willful refusal to perform job
related duties or direct challenges to the authority of a superior), alcoholism
or drug addiction which prevents EMPLOYEE from successfully performing the job
related functions of EMPLOYEE'S position, breach of any terms of this AGREEMENT,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, or the willful or reckless
violation of any law, rule or regulation other than traffic violation or similar
offenses.
4.2 Death. EMPLOYEE'S employment shall terminate immediately in
the event of the death of EMPLOYEE.
4.3 Inability to Perform. X. XXXXXX may terminate EMPLOYEE'S
employment if EMPLOYEE has been unable to perform EMPLOYEE'S duties pursuant to
this AGREEMENT, for whatever reason, for a continuous period of six (6) months
or any six (6) month period within a continuous twelve (12) month period, and
has not returned to work full time within ten (10) days of notice thereafter by
X. XXXXXX requesting such return.
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4.4 Without Cause
a. Either X. XXXXXX or EMPLOYEE may terminate this
AGREEMENT at any time without cause.
b. If X. XXXXXX decides to terminate this AGREEMENT
without cause, then it shall pay to EMPLOYEE severance in the amount of two (2)
years of salary. The severance shall be paid as a lump sum.
c. If X. XXXXXX alters the duties of the EMPLOYEE in
such a way that his responsibilities or authorities are reduced; if EMPLOYEE is
required to suffer a substantial change in his physical surroundings or
reporting relationships; or if X. XXXXXX decides to relocate, then the EMPLOYEE
shall have the right to consider such action to be a constructive termination,
then the EMPLOYEE shall have the right to consider such action a constructive
termination without cause under Section 4.4. If EMPLOYEE declares such action to
be a constructive termination, then the EMPLOYEE will receive the severance set
forth in 4.4(b). If the EMPLOYEE accepts the relocation, then X. XXXXXX will pay
EMPLOYEE'S relocation expenses in accordance with X. XXXXXX policies.
d. Change of Control. In the event that there is a
change in ownership of more than 25% of the shares of stock outstanding of X.
XXXXXX, then EMPLOYEE, at his option, within 180 days of such change of control,
may choose to terminate his employment pursuant to this paragraph and receive
the two years of severance pay provided for in Section 4.4(b) above.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE
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EMPLOYEE represents and warrants to X. XXXXXX as follows:
5.1 Service by EMPLOYEE as an employee of X. XXXXXX as
contemplated by this AGREEMENT will not result in the breach by EMPLOYEE or
constitute a default by EMPLOYEE under any written or oral agreement (including
agreements with former employers), instrument, decree, judgment or order to
which EMPLOYEE is bound. EMPLOYEE is not bound by any secrecy, non-disclosure or
non-competition agreement that would in any manner interfere with EMPLOYEE'S
carrying out this AGREEMENT.
5.2 To the best knowledge of EMPLOYEE, there are no actions, suits
or proceedings pending or threatened against EMPLOYEE that will adversely affect
the transactions contemplated by this AGREEMENT.
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5.3 To the best knowledge of EMPLOYEE, there are no restrictions
or facts, which prevent EMPLOYEE from accepting and fulfilling EMPLOYEE'S duties
as contemplated by this AGREEMENT.
ARTICLE 6
ENTIRE AGREEMENT AND MODIFICATION
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This AGREEMENT supersedes and cancels any previous employment
agreements or oral understandings relating to EMPLOYEE, represents the entire
understanding between the parties with reference to the subject matter hereof,
may not be modified or terminated, and no requirement or breach of this
AGREEMENT may be waived other than by a document in writing signed by EMPLOYEE
and an authorized representative of X. XXXXXX.
ARTICLE 7
CONTROLLING LAW AND JURISDICTION
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X. XXXXXX is located in New Jersey and EMPLOYEE'S relation with X.
XXXXXX is based in New Jersey. This AGREEMENT was made in New Jersey. For
purposes of analysis and interpretation of this Agreement, New Jersey law shall
apply and control. EMPLOYEE and X. XXXXXX consent to the jurisdiction of the
Superior Court of New Jersey for purposes of litigating any disputes under this
AGREEMENT.
ARTICLE 8
SEVERABILITY
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If any provision of this AGREEMENT shall be found to be contrary to law
or otherwise unenforceable by any court, only that provision shall be invalid,
and all other provisions of this AGREEMENT shall remain valid and enforceable.
If any court finds a provision of this Agreement to be overly broad, that court
may modify that provision to the extent necessary to make it valid and
enforceable.
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ARTICLE 9
BINDING EFFECT
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This AGREEMENT is binding on and inures to the benefit of X. XXXXXX and
EMPLOYEE and their respective successors, assigns, heirs, legal representatives,
executives and administrators.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the
date first above written.
X. XXXXXX, INC. EMPLOYEE;
By: /s/ W. XXXXX XXXXX, XX. /s/ XXXX X. XXXXXXXX
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W. XXXXX XXXXX, XX. ESQ. V.P. XXXX X. XXXXXXXX
Dated: January 1, 2004 Dated: January 1, 2004
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