EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made effective the 7th day of May, 2004
("Effective Date"), by and between Critical Home Care, Inc., a Nevada
corporation ("Corporation") and Xxxxxxxx Xxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, subject to the terms and provisions of this Agreement, Corporation
desires to employ Executive in the positions set forth herein and Executive
desires to accept such employment.
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. Employment. Corporation hereby employs Executive and Executive hereby
accepts such employment, in accordance with the terms and conditions set forth
in this Agreement.
2. Duties and Responsibilities. Executive shall serve as the President and
Chief Operating Officer of the Corporation and each of the following affiliates
of the Corporation ("Affiliates"): RKDA, Inc., Arcadia Services, Inc. and
ArcradiaRx, LLC. Executive shall perform such duties and responsibilities
assigned to him from time to time by the Board of Directors of the Corporation
or applicable Affiliate ("Board of Directors") that are consistent with the
titles held by Executive. If requested by the Board of Directors, Executive
shall serve on any committee established by the Board of Directors without
additional compensation. During the term of this Agreement, Executive shall
devote substantially all of his business time and efforts to the performance of
his duties and responsibilities to the Corporation and the Affiliates. Executive
shall not engage in any other significant business activity if such activity
would detract from his ability to adequately and fully perform the duties and
responsibilities required under this Agreement.
3. Term of Agreement/Employment. The initial term of this Agreement shall
be three (3) years commencing on the Effective Date ("Initial Term"), unless
sooner terminated pursuant to this Agreement. Upon expiration of the Initial
Term, this Agreement shall be automatically renewed and extended for successive
one (1) years periods (each a "Renewal Term") unless the Corporation notifies
Executive in writing of its intention not to renew and extend this Agreement at
least three (3) months prior to the end of the Initial Term or the Renewal Term,
as applicable.
4. Compensation and Benefits. Corporation agrees to pay and provide
Executive and Executive agrees to accept in full consideration for his services
to Corporation and Affiliates, the following:
A. Salary. An annual base salary ("Base Salary") of One Hundred Fifty Thousand
($150,000) Dollars, payable in accordance with the normal payroll practices
of Corporation, less applicable withholdings. Executive's Base Salary may
be increased from time to time at the discretion of the Board of Directors
of the Corporation.
B. Stock Options. Executive shall be granted nonqualified stock options to
acquire four million (4,000,000) shares of Corporation common stock
pursuant to and in accordance with the Stock Option Agreement attached
hereto as Exhibit "A".
C. Annual Bonus. Executive shall be eligible to receive an annual cash bonus
as determined by the Board of Directors, in its sole discretion, at the end
of each fiscal year of the Corporation.
D. Fringe Benefits/Retirement Plans. Executive shall be entitled to immediate
participation in all pension, profit sharing, group insurance, stock
option, hospitalization and group health, and any other type of benefit
plan offered by Corporation to its senior executives.
E. Expense Reimbursement. The Corporation shall promptly reimburse Executive
all reasonable out-of-pocket expenses incurred by him in connection with
the performance of services for the Corporation or the Affiliates upon
Executive's submission of such receipts and records as may be required
under Corporation policy.
F. Vacation and Sick Time. Executive shall be entitled to take up to five (5)
weeks of paid vacation per year, plus a limited amount of paid time off for
sickness, disability, or other personal reasons in accordance with the
Corporation's general time off policies in effect from time to time for its
senior executives.
G. Vehicle Allowance. Executive shall receive a monthly vehicle allowance of
Seven Hundred Fifty and No/100 ($750.00) Dollars.
5. Termination. This Agreement and Executive's employment with the
Corporation shall terminate as follows:
A. Death or Permanent Disability. This Agreement shall terminate immediately
upon the death or permanent disability of Executive. For purposes of this
Agreement, Executive shall be deemed to be permanently disabled if
Executive is unable to fully perform his duties and responsibilities for a
period of one hundred eighty (180) consecutive days on account of a
permanent physical or mental illness or disability;
B. Termination by Corporation For Cause. The Corporation shall have the right
to immediately terminate this Agreement and Executive's employment "For
Cause". For purposes of the Agreement, "For Cause" means (i) the conviction
of, or pleading guilty or nolo contendere to, any crime, whether or not
involving the Corporation, constituting a felony in the jurisdiction
involved, which the Board of Directors, in its reasonable discretion,
determines may have an injurious effect on the Corporation; (ii) the
conviction of any crime involving moral turpitude; or (iii) Executive's
gross negligence or willful misconduct in the conduct of his duties or the
willful and repeated failure or refusal to perform such duties as may be
properly delegated to Executive by the Board of Directors which are
consistent with the Executive's positions; provided, however, with respect
to the actions described in (iii), Executive shall be given written notice
by the Corporation specifying in detail the particular events upon which
the Corporation is relying in terminating his/her employment for Cause and
Executive shall have fourteen (14) days following receipt of the written
notice to correct such actions or inactions.
C. Termination by Executive For Good Reason. Executive may terminate this
Agreement at any time by for "Good Reason" by written notice to the
Corporation. For this purpose, "Good Reason" means (i) the removal of
Executive, without his consent, from any positions or offices held by
Executive or the failure of Executive to be elected to the Board of
Directors or the assignment to Executive, without his consent, of any
duties or responsibilities that are inconsistent in any material and
negative respect with his positions in the Corporation; or (ii) any
material breach of this Agreement by the Corporation that is not cured
within thirty (30) days after receipt of written notice from the Executive,
which shall include, without limitation, any reduction in the Executive's
Base Salary.
6. Obligation Upon Termination of Employment. Upon the termination of this
Agreement and Executive's employment with the Corporation, the Corporation shall
have no further liability or obligation whatsoever to Executive or his personal
representative, estate, heirs, spouse, beneficiaries or any other person
claiming by, under or through Executive, except as follows:
A. Death. If this Agreement and Executive's employment with the Corporation is
terminated on account of death, the Corporation shall pay to the
Executive's estate an amount equal to one (1) times the Executive's Base
Salary in effect on the date of death. Such amount, less applicable
withholdings, shall be paid in equal installments in accordance with the
Corporation's normal payroll practices
B. Disability or Resignation. If this Agreement and Executive's employment
with the Corporation is terminated on account of death, permanent
disability or the Executive's voluntary resignation, then the Corporation
shall only be obligated to pay Executive, or if applicable, his estate or
representative, the amount of any unpaid Base Salary and benefits
(including any unpaid bonus) accrued through the date of termination.
C. Termination Other than For Cause; Good Reason. Subject to Section 7, if the
Corporation terminates this Agreement and Executive's employment for any
reason (including not renewing upon expiration of the Initial Term or
Renewal Term, as applicable) other than For Cause or if Executive
terminates his employment with the Corporation for Good Reason, then the
Corporation shall pay Executive the unpaid Base Salary and benefits
(including any unpaid bonus) earned and accrued through the date of
termination, plus the Corporation shall pay, as severance, an amount equal
to the product obtained by multiplying (x) Executive's Base Salary in
effect on the date of termination, by (y) two (2). Twenty-five (25%)
percent of the severance amount, less applicable withholdings, shall be
made within sixty (60) days following the termination of this Agreement and
the balance shall be paid, less applicable withholdings, in eighteen (18)
equal monthly installments with the first installment due and payable
within ninety (90) days following the termination of Executive's
employment.
D. Termination by Corporation For Cause. If this Agreement and Executive's
employment is terminated by the Corporation For Cause, then Corporation
shall only be obligated to pay Executive the amount of any unpaid Base
Salary earned and accrued through the date of termination.
7. Change in Control. If, during the period commencing 120 days prior to a
"Change in Control" and ending on the first anniversary of such Change in
Control, Executive's employment is terminated by the Corporation for any reason
other than For Cause or is terminated by Executive For Good Reason, then the
severance amount payable under Section 6(C) of this Agreement shall be an amount
equal to three (3) times the total compensation received by Executive pursuant
to Sections 4A. and 4C. of this Agreement for the preceding calendar year and
shall be due and payable in a lump sum within 10 days of the date of
termination. For this purpose, a Change in Control shall have the same meaning
given to such term in the Corporation's 2002 Stock Option Plan.
8. Inventions. If any at time Executive shall, either alone or with others,
make, devise, create, invent or discover any inventions, improvements,
modifications, developments, ideas, products, property, formulas, know-how,
designs, models, processes, prototypes, sketches, drawings, plans or other
matters whatsoever (whether or not capable of being protected by letters of
patent, registration, copyright, registered trademark, service marks or other
protection) which, in any manner, relate to, arise out of, or are in connection
with the present or future business prospects or activities of Corporation
(collectively "Inventions"), all such Inventions shall immediately be and remain
the sole and exclusive property of Corporation and Executive shall immediately
and confidentially communicate a description of the Invention to Corporation and
to no other party at any time, and if Corporation so desires, Executive shall
execute all documents and instruments and do all things as may be requested by
Corporation in order to forever vest all right, title and interest in such
Invention solely in Corporation and to obtain such letters of patent,
copyrights, registrations or other protections as Corporation may, from time to
time, desire.
9. Confidentiality. Executive acknowledges and agrees that at all times
during and following the termination of his employment with Corporation under
any circumstances, he shall not use or disclose (i) any information, knowledge
or data relating in any way to the business, financial condition, sales, public
and private sources of financing, customers, operations, suppliers, products,
services, Inventions, business relationships, technologies or services of
Corporation, or (ii) any other proprietary or confidential information,
knowledge, data or details of the past, present or future business affairs or
practices of Corporation (items (i) and (ii) are hereafter referred to as
"Confidential Information"), except Executive may use any such Confidential
Information provided to him as necessary during the term of this Agreement for
purposes of carrying out his/her duties hereunder for Corporation's benefit
provided adequate measures are taken to protect the confidentiality thereof.
Executive covenants and agrees that (i) the use and disclosure restrictions
applicable to Confidential Information shall also apply to all documents or
other materials containing any Confidential Information ("Confidential
Materials"), (ii) all Confidential Materials are and shall remain at all times
the sole exclusive property of Corporation, and (iii) upon termination of
employment, Executive shall promptly return all Confidential Materials, and all
copies and extracts thereof, to Corporation and at no time shall any
Confidential Materials be used, copied, published, circulated or disclosed, in
any manner whatsoever, except as specifically authorized in writing by
Corporation.
10. Covenant-Not-To-Compete. Executive covenants and agrees that during the
course of his/her employment and for the one (1) year period following
termination of his employment ("Restricted Period"), Executive shall not within
North America ("Restricted Area"), in any manner, directly or indirectly,
through intermediaries or other persons or entities, either as owner,
shareholder, director, officer, agent, consultant, creditor, representative,
investor, partner, Executive, or on behalf of any other person or entity, or in
any other capacity whatsoever (i) engage in, assist, provide capital, services,
advice or information to, or in any manner whatsoever become associated with any
business or enterprise that offers products or services similar in type, nature,
style, function or purpose with those offered by the Corporation or its
affiliates or any business or enterprise that is competitive with or similar to
any business conducted by the Corporation or its affiliates, (ii) contact for
any business purpose, solicit or attempt to solicit any supplier, customer,
agent, representative or Executive of the Corporation or its affiliates, or
otherwise interfere with or attempt in any manner to disrupt any relationship or
agreement between the Corporation or its affiliates and any of its customers,
Executives, agents, representatives or others doing business with the
Corporation or its affiliates, or (iii) compete with the Corporation or its
affiliates. Notwithstanding the foregoing, Executive shall be permitted to own,
directly or indirectly, up to one percent (1%) of the issued and outstanding
voting securities of any class of any publicly traded corporation.
11. Enforceability. Executive expressly agrees and acknowledges that a loss
arising from a breach of any provision under Sections 8, 9 or 10 may not be
reasonably and equitably compensated by money damages. Therefore, Executive
agrees that in a case of any such breach, Corporation shall be entitled to
injunctive and/or other extraordinary relief in order to prevent Executive from
engaging in any of the foregoing prohibited activities, which relief shall be
cumulative and in addition to any and all other additional remedies to which
Corporation may be entitled at law or equity. In the event that any court of
competent jurisdiction shall determine that any part or all of the provisions of
Section 10 is unenforceable or invalid due to the scope of the activities
restrained, the geographical extent of the restraints imposed, the duration of
the restraints imposed, or otherwise, the parties hereby expressly intend, agree
and stipulate that under such circumstances, the provisions of Section 10 shall
be enforceable to the fullest extent and scope permitted by law and that the
parties shall be bound by any judicial modifications to the provisions therein
which said court of competent jurisdiction may make in order to carry out the
intentions of the parties as provided herein.
12. 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 Florida, 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 circuit court located in Florida or by any other court of competent
jurisdiction.
13. Waiver of Breach. The waiver of breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any party or
allowed it by law shall be cumulative and not exclusive of any other.
14. Interpretation of Agreement. Where appropriate in this Agreement, words
used in the singular shall include the plural, and words used in the masculine
shall include the feminine and neuter. All headings that are used in this
Agreement are for the convenience of the reader only and shall not be used to
limit or construe any of the provisions hereof.
15. 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.
16. Successors. The Agreement shall inure to the benefit of Corporation and
its successors, but may not be assigned or delegated by Executive, as it
requires Executive's personal services.
17. Entire Agreement. This Agreement and the Stock Option Agreement
constitute 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.
18. 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 have executed this Agreement effective the date and year first
above written.
"CORPORATION"
/s/ Xxxxx Xxxxxx
By: ____________________________________
President
Its:_______________________________________
"EXECUTIVE"
/s/ Xxxxxxxx Xxxxxxx
________________________________________
Xxxxxxxx Xxxxxxx
