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 Xxxxx Xxxxxx ("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 Executive Vice
President of the Corporation. Executive shall perform such duties and
responsibilities assigned to him from time to time by the Board of Directors of
the Corporation ("Board of Directors") that are consistent with the title 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. 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. 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.
C. 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.
D. 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.
E. 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.
F. 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 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 New York, 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 New York 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 constitutes 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 including, without limitation, the Employment
Agreement between the Corporation and Executive dated September 26, 2002 which
the parties acknowledge and agree has been terminated. 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/Xxxx X. Xxxxxxx
By: Xxxx X. Xxxxxxx
CEO
Its: _________________________________________
"EXECUTIVE"
/s/Xxxxx Xxxxxx
_________________________________________
Xxxxx Xxxxxx
