EXHIBIT 10.4
AGREEMENT
AGREEMENT MADE and effective as of the First day of June, 1995 by and
between THE XXXXXXX CORPORATION, a Nevada corporation with its principal office
at Landmark Building, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000
(hereinafter "Employer"), and XXXXXXX X. XXXXXXXX residing at 00 Xxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx, 00000 (hereinafter "Executive").
WHEREAS, Employer is in the business of developing and marketing health
related and/or various other consumer products for sale in the commercial
marketplace, television, mail order and network marketing; and
WHEREAS, Employer desires to assure the services of Executive for the
period in this Agreement and Executive is willing to serve in the employ of
Employer on a full-time basis for said period upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT. Employer agrees to employ Executive and Executive agrees
to enter employ of the Employer for the period stated in Paragraph "3" hereof
and upon the other terms and conditions set forth herein.
2. POSITION AND RESPONSIBILITIES. During the period of his employment
hereunder, Executive agrees to serve as Vice President and Technology Transfer
Coordinator of the Employer and to be responsible for the overall product
production of the Company, reporting directly to the President and the Board of
Directors of the Employer ("the Board").
3. TERM OF EMPLOYMENT. The period of Executive's employment under this
Agreement shall be deemed to have commenced as of June 1st; 1995, and shall
continue for a period of ten (10) years until May 31st; 2005, and thereafter
from year to year as mutually agreed upon.
4. DUTIES. During the period of his employment hereunder and except for
illness, vacation periods and reasonable leaves of absence, Executive shall
devote substantially all his business time, attention, skill and efforts to the
faithful performance of his duties hereunder; provided, however, that the
foregoing shall not be construed to prevent Executive from acting as a Director
or Counsel of any other non-competing corporation or entity when such activity
does not materially affect the performance of Executive's duties to this
Agreement.
5.1 COMPENSATION. Employer shall pay Executive as compensation for his
services hereunder, during the first year of this Agreement, (i) a minimum base
salary of $75,000.00 per year, payable weekly or bi-weekly and (ii) such bonus
or additional compensation as may be awarded to Executive from time to time by
the Board or by a committee designated by the Board. Additionally, Executive
shall be entitled to four (4) weeks paid vacation per year. For each subsequent
year of this Agreement, Executive's base salary shall increase each year on
January 1 by the lesser of (i) 20% of the preceding year's base salary, or (ii)
2% of the increase in gross revenues of the Employer over the gross revenues of
the preceding calendar year. In either event, the increase in base salary shall
be payable as additional compensation in two (2) equal installments, on March
1st; and September 1st; of each year, or alternatively on a monthly basis.
5.2 NETWORK MARKETING COMPENSATION. Executive shall be entitled to a
prominent position in any network marketing program undertaken by the Employer.
6. REIMBURSEMENT OF EXPENSES. Employer shall pay or reimburse Executive
for all reasonable travel and other expenses incurred by Executive in
performance of his obligations under this Agreement. Employer further agrees to
provide and pay for a telephone line at Executive's residence to be utilized by
Executive for the business purposes of the Employer.
7. BENEFITS. Employer shall provide to Executive the following
additional benefits: (i) health and dental insurance for Executive and his
family members at least equivalent to the executive level program offered by
Blue Cross/Blue Shield, (ii) a suitable automobile for business purposes, owned
or leased and maintained by the Company, plus fuel for business purposes,
insurance, tolls and parking and (iii) such profit sharing, stock option, or
retirement plans as may be adopted or offered to any employee by the Employer or
the Owner at any time during the term of this Agreement.
8. DISABILITY BENEFITS. As used in this Agreement, the term
"disability" shall mean the total and complete inability of the Executive to
perform his duties under this Agreement as determined by an independent
physician selected with the approval of the Employer and the Executive. With the
exception of Clause 5.2, which cannot be revoked, in the event of such
disability, the Employer shall continue to pay Executive the compensation set
forth in Paragraph "5" hereof during the period of such disability; provided,
however, that in the event the Executive is disabled for a continuous period in
excess of eighteen calendar months, the Employer may, at its election, terminate
this agreement in which event Executive shall be entitled to a lump-sum
termination payment of $100,000.
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9. PAYMENTS PAYABLE. UPON DEATH. In the event of the death of Executive
during the term of this Agreement, the compensation and benefits required to be
paid hereunder shall continue to be paid for a period of twelve (12) months to
the wife or dependent(s) of Executive, if surviving.
10. (a) TERMINATION AND EXTENSION. This Agreement may not be terminated
during its term by the Employer for any reason other than a material breach by
the Executive of the terms of this Agreement. Upon its expiration, this
Agreement shall be automatically renewed for additional one-year periods unless
Employer shall provide Executive with written Notice of Intent not to renew this
Agreement not less than three (3) months prior to the expiration of the initial
term or any extension term thereof.
10. (b) SEVERANCE. For whatever reason the Employer shall buy out the
remaining value of this contract, it shall pay to the Executive two years base
compensation, determined at the rate of the Executive's base rate, plus any
bonus plan payments that would have been accrued had the Executive remained as
an employee of the Employer. This provision applies regardless of the fact that
the Executive obtains new employment and such earning are not mitigated against
the remaining and severance values of this contract.
11. NON-COMPETITION. Executive shall not, at any time during the term
of this Agreement or any extension thereof, or within one year of the expiration
thereof, directly or indirectly engage in the business of developing or
marketing cold therapy products.
12. INDEMNIFICATION. The Employee hereby covenants and agrees that he
will not do any act or incur any obligation on behalf of the Employer of any
kind whatsoever unless authorized by the Employer. The Employer hereby covenants
and agrees that it will indemnify Employee and hold him harmless from any
obligation or liability incurred by the Employer or by the Employee as an
Officer, Director, Employee or Agent of the Employer, including the reasonable
expenses of legal defense thereof, for any act, omission or liability undertaken
or incurred during the course of this Agreement.
13. NOTICES. All notices, demands or communications hereunder shall be
in writing and unless otherwise provided, shall be deemed to have been duly
given on the first business day after United States mailing by certified mail,
return receipt requested, addressed to the parties at such address as they shall
advise from time to time.
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14. AMENDMENT. No modification, waiver, amendment or discharge of this
Agreement shall be valid unless the same is in writing and signed by each party
hereto.
15. SURVIVAL. The representations, warranties, covenants and
indemnifications contained herein shall survive the execution hereof and shall
be effective regardless of the expiration or termination hereof.
16. ENFORCEMENT. Severability. It is the desire and the intent of the
parties hereto that the provisions of this Agreement hereof be enforced to the
fullest extent permissible under the laws and public policy of the jurisdictions
in which enforcement is sought. Accordingly, if any particular portion or
provision of this Agreement shall be adjudicated to be invalid or unenforceable,
the remaining portion or such provision or the remaining provisions of this
Agreement, or the application of such provision or portion of such provision as
is held invalid or unenforceable to persons or circumstances other than those to
which it is held invalid or unenforceable, shall not be effected thereby.
17. ASSIGNABILITY. Employee and the Executive agree that this Agreement
may be assigned to a corporation controlled by the Executive.
18. GOVERNING LAW AND VENUE. This Agreement shall be construed in
accordance with the laws of the State of Pennsylvania and any proceeding arising
between the Parties in any matter pertaining or relating to this Agreement shall
be held or brought in the Supreme Court of the State of Pennsylvania in and for
the County of Bucks.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the First day of June, 1995:
XXX XXXXXXX
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By: THE XXXXXXX CORPORATION
By: EMPLOYEE:/S/ XXXXXXX XXXXXXXX
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