EXHIBIT 10.4
EMPLOYMENT AGREEMENT
AGREEMENT made as of August 1, 2001 between ALLOU HEALTH & BEAUTY
CARE, INC., a Delaware corporation with offices at 00 Xxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (the "Company"), and XXXX XXXXXX, residing at 000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Employee").
W I T N E S S E T H :
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WHEREAS, Employee has been employed by the Company and has rendered
substantial services to the Company; and
WHEREAS, the Company believes that the contributions that have been
made and can continue to be made by Employee toward the success of the business
of the Company are valuable and wishes to retain the services of Employee for
its benefit; and
WHEREAS, the Company desires to continue to retain the services of
Employee as its Executive Vice President; and
WHEREAS, Employee is willing to continue as such upon the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the Company and Employee agree as
follows:
1. Term. The Company hereby employs Employee, and Employee hereby
accepts employment by the Company, on the terms and conditions herein contained
for a term commencing August 1, 2001 (the "Commencement Date") and terminating
on July 31, 2004 ("Original Term") unless sooner terminated as herein provided
(the "Term").
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2. Employment Duties.
(a) During the Term, Employee shall serve as the Executive Vice
President of the Company and Employee shall have such responsibilities, powers
and duties as are substantially consistent with his present responsibilities,
powers and duties. Employee shall be subject to the reasonable direction of the
Board of Directors of the Company. Employee agrees that during the Term he will
devote his full time and attention during regular business hours to the business
and affairs of the Company except during vacation periods and periods of illness
or incapacity. Notwithstanding the foregoing and so long as his activities do
not interfere with the performance of his duties hereunder, Employee will be
permitted to acquire, own or deal in securities or other investments except
that, without the prior written consent of the Company's Board of Directors,
Employee may not invest in any business which has business relations or competes
with the Company or any of its subsidiaries or affiliates unless the securities
of such business are listed on a national securities exchange or traded in the
over-the-counter market and the interest of Employee does not exceed one (1%)
percent of the outstanding securities of any class of that business. In
addition, nothing contained herein shall prevent Employee from serving as a
director or trustee of any corporation or other organization, and in any other
capacity with any non-commercial enterprise, provided that such service does not
materially interfere with the performance of his duties hereunder and such
business or organization does not compete with the Company or any of its
subsidiaries or affiliates.
(b) It is understood that, except for limited business travel which
shall be only such as is reasonably required for him to perform his duties
hereunder, Employee's duties under this paragraph 2 are performed at the
Company's principal executive office in Brentwood, New York.
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3. Compensation and Benefits.
(a) For the full, prompt and faithful performance of all of the
duties and services to be performed by Employee hereunder, the Company agrees to
pay Employee a salary ("Base Salary") at the rate of Five Hundred Thousand
Dollars ($500,000) per year, payable in equal semi-monthly installments or in
such other manner as shall be mutually agreeable to Employee and the Company.
The Company's Board of Directors may, in its discretion, at any time and from
time to time, increase such Base Salary for Employee and grant Employee other
compensation, including bonuses, in addition to that provided for hereunder.
Employee's compensation shall be reviewed at least once each year. Any increase
in Base Salary or other compensation shall in no way limit or reduce any other
obligation of the Company under this Agreement.
(b) As additional compensation, Employee shall receive a sum equal
to: (i) three percent (3%) of the amount of any increase in the Company's
earnings before interest and taxes ("EBIT") (as hereinafter defined) at the end
of each fiscal year during the term of this Agreement as compared to the EBIT
for the prior fiscal year (an "Increase") for amounts of such Increase up to
$2,000,000; (ii) two percent (2%) of the amount of any Increase that is greater
than $2,000,000 but less than or equal to $3,000,000; and (iii) one percent (1%)
of the amount of any Increase exceeding $3,000,000. For the purposes of this
Agreement, "EBIT" shall be the annual earnings of the Company for the fiscal
year computed before any charges for interest expense and any federal, state or
other taxes relating to income, and shall be determined in accordance with
generally accepted accounting principles by the certified public accountants
regularly employed by the Company whose determination shall be binding on the
parties.
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The computation of "EBIT" shall be made as soon as practicable after
the end of each fiscal year and the computation provided for in the section 3(b)
may be paid in full after the end of each fiscal year. If at the end of any
fiscal year, the Company's EBIT does not exceed the EBIT for the prior fiscal
year, Employee shall not receive any additional compensation as set forth in
this section 3(b).
(c) In addition to the compensation provided for herein, Employee
shall be entitled to participate in any bonus, incentive compensation,
retirement, profit-sharing, medical payment, disability, health or life
insurance and other benefit arrangements which may be or become available to
executives of the Company.
(d) Throughout the Original Term, the Company shall continue to
provide Employee with life insurance with the beneficiary thereof to be
designated by Employee in an amount not less than that in effect for Employee at
the date hereof and shall pay all premiums due thereunder.
(e) Employee shall be entitled to reimbursement, not less frequently
than monthly, for expenses reasonably incurred by him in furtherance of the
business of the Company and in the performance of his duties hereunder, on an
accountable basis with such substantiation as the Company may at the time
require from its senior executive officers.
(f) During the Term, Employee shall be entitled to continue to
receive the fringe benefits and perquisites presently provided for him by the
Company. In order to enable Employee to most effectively perform his duties
hereunder, the Company will provide Employee with the use of an automobile to be
comparable and equivalent to the price category car presently used by Employee,
under a two-year replacement program, and payment of all expenses associated
therewith.
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(g) Employee shall be entitled to four (4) weeks of vacation in each
twelve (12) month period during the Term, to be taken at such times as may be
mutually and reasonably agreed upon by the Company and Employee.
4. Termination upon Death. The Term shall terminate on the date of
Employee's death, except that Employee's Base Salary shall be paid to his estate
for a period of one (1) year after the date of his death. If Employee was
entitled to receive any bonus, incentive or similar form of compensation under
any arrangement with the Company which was to be based upon a period extending
beyond the date of Employee's death, payment of a portion thereof, equal to the
amount which would have been payable for the full period in which death occurs,
multiplied by a fraction, the numerator of which is the number of days in such
period through the date of death and the denominator of which is the total
number of days in the full period, shall be made at the time it would have been
made in accordance with such arrangement.
5. Disability. If during the Term Employee shall, because of physical
or mental illness or incapacity, become totally unable to perform, or in the
judgment of the Company evidenced by a resolution adopted in good faith by a
majority of its Board of Directors unable adequately to perform, the duties and
services required of him pursuant to paragraph 2(a) for a period of one hundred
eighty (180) consecutive days, the Company may, upon at least ninety (90) days
prior written notice given at any time after the expiration of such one hundred
eighty (180) day period to Employee of its intention to do so, accelerate the
end of the Term to such date as may be set forth in such notice; provided,
however, that the end of the Term shall not be accelerated prior to the
effective date of such proposed termination of the Term and the Term shall
remain in full force and effect if Employee shall have resumed the full-time
performance of his duties hereunder until such date of termination. In case of
such acceleration
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of the end of the Term, Employee shall be entitled to receive, and the Company
agrees to pay, his Base Salary for a period of one (1) year after the date of
his termination due to disability and a pro rata portion of the amount of any
bonus, incentive or similar form of compensation which he would have otherwise
been entitled to for the period in which the acceleration of the end of the Term
occurs.
6. Confidential Information. All confidential information which
Employee may now know or which hereby may become known to Employee relating to
the business of the Company or any customer or supplier of the Company shall not
be disclosed by Employee to any other person or entity either during the Term or
thereafter. Such confidential information shall be returned to the Company upon
termination of Employee's employment.
7. Non-Competition.
(a) Employee agrees that during the Term and for a period of one (1)
year after the termination of his employment with the Company, he will not (i)
engage in or have any interest in any person, firm or corporation which engages,
directly or indirectly, in competition with the Company or its subsidiaries or
affiliates in the United States, in the sale of products or services of the type
in which Employee has been directly involved during the Term in or have any
interest in any person, firm or company which engages, directly or indirectly,
in competition with the Company or its subsidiaries or affiliates in the United
States for the business of any entity which was a customer of the Company or its
subsidiaries or affiliates at any time during the Term or (ii) solicit any
employees of the Company or any of its parents, subsidiaries or affiliates to
leave their employ.
(b) For the purposes of this paragraph 7, Employee will be deemed
directly or indirectly engaged in a business if he participates in such business
as a proprietor,
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partner, joint venturer, shareholder, director, officer, lender, manager,
employee, consultant, adviser or agent or if he in any way controls such
business. Employee shall not for purposes of this paragraph 7 be deemed a
shareholder or lender if he holds less than one (1%) of the outstanding
securities of any class of any publicly- or privately-owned corporation engaged
in the same or similar business to that of the Company or its subsidiaries or
affiliates, provided that Employee shall not be in a control position
(individually or as part of a group) with regard to such corporation.
(c) In the event of a breach or threatened breach by Employee of any
of the provisions of this paragraph 7, the Company shall be entitled, upon
establishing the existence of such breach or threatened breach, to an injunction
to be issued by any tribunal of competent jurisdiction to restrain Employee from
committing or continuing any such violation. In any proceeding for an injunction
and upon any motion for temporary or permanent injunction, Employee agrees that
his ability to answer in damages shall not be a bar or be interposed as a
defense to the granting of such temporary or permanent injunction against him.
Employee acknowledges that the Company will not have an adequate remedy at law
in the event of any breach by him as aforesaid and that the Company may suffer
irreparable damage and injury in the event of such a breach by him. Nothing
contained herein shall be construed as prohibiting the Company from pursuing any
other remedy or remedies available to the Company, including, without
limitation, the recovery of damages from Employee.
8. Representation by Employee. Employee represents and warrants that
he has not entered into any other agreement or understanding which is
inconsistent with the execution of this Agreement or which in any way will
prevent full compliance by him with the terms of this Agreement.
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9. Assignability. This Agreement may not be assigned by Employee and
all of its terms and conditions shall be binding upon and inure to the benefit
of Employee and his heirs and legal representatives and the Company and its
successors and assigns. Successors of the Company shall include, without
limitation, any corporation or corporations acquiring directly or indirectly all
or substantially all of the assets of the Company whether by merger,
consolidation, purchase, lease or otherwise and such successor shall thereafter
be deemed the "Company" for purposes hereof.
10. Notices. All notices, requests, demands and other communications
provided for hereby shall be in writing and shall be deemed to have been duly
given when delivered personally, sent by facsimile transmission (with receipt
confirmed) or two days after being sent by registered or certified mail, return
receipt requested, to the party entitled thereto at the address first above
written or to such changed address as the addressee may have given by a similar
notice.
11. Modification. This Agreement may be modified or amended only by an
instrument in writing signed by Employee and the Company and any provision
hereof may be waived only by an instrument in writing signed by the party hereto
against whom any such waiver is sought to be enforced.
12. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision contained herein.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
14. Captions. The captioned headings here convenience of reference
only and are not intended to be construed to have any substantive effect.
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IN WITNESS WHEREOF, the parties hereto have this Agreement as of the
date first above written.
ALLOU HEALTH & BEAUTY CARE, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxx
Title: President and
Chief Financial Officer
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
