EXHIBIT 10.4
EMPLOYMENT AGREEMENT
AGREEMENT made as of the __ day of July, 2001, by and between APO HEALTH,
INC., a Nevada corporation (the "Company"), and Xx. Xxx Xxxxx, residing in
Baldwin, New York.
WITNESSETH:
1. EMPLOYMENT: The Company hereby employs Xx. Xxx Xxxxx ("Xxxxx") and he
agrees to serve the Company for a period of three (3) years to commence on the
1st day of October, 2001.
2. DUTIES: During the period of employment hereunder, Xxxxx shall serve the
Company in such positions as from time to time is determined by the Board of
Directors. Xxxxx shall initially serve as Secretary of the Company and Chief
Executive Officer, and shall perform such other services not inconsistent with
his position as shall be designated by the Board of Directors of the Company,
and use his best efforts to promote the interests of the Company.
3. RESTRICTIONS: Xxxxx shall devote his full working time to the Company and
use his best efforts to promote the interest of the Company during the term of
employment. Xxxxx further agrees that during the term of this agreement he
will not engage directly or indirectly in any business other than his
employment with the Company.
4. COMPENSATION: As compensation for the services to be rendered hereunder,
the Company shall pay to Xxxxx:
(a) a salary at the rate of Two Hundred Fifty ($250,000.00) Thousand Dollars
per annum, payable in semi-monthly installments or as the parties may agree,
and
(b) such additional sums as may be awarded annually as bonus compensation.
Such bonuses may result from the following: (1) Incentive Bonus based upon one
and one-half (1-1/2%) per cent of all revenues in excess of Twenty-Five
Million ($25,000,00) Dollars of gross revenues generated by the Company in
each fiscal year; such bonus, if awarded, will not be treated as salary
increment for salary base purposes and will be reevaluated annually; (2)
Special Bonus, in addition to any incentive bonus for prompt recognition of
unusual and outstanding performance, where warranted and approved; and (3)
General Employee annual bonus, when approved, in addition to any incentive or
special bonus awarded.
5. EXPENSES: The Company will reimburse on presentation of expense accounts,
all authorized out of town expenses incurred by Xxxxx in the rendering of
services hereunder on behalf of the Company.
6. LIFE INSURANCE: The Company may in its discretion, at any time after the
execution of this agreement, apply for and procure as owner for its own
benefit, insurance on the life of Xxxxx, in such amounts and in such form or
forms as the Company may choose. At the request of the Company, Xxxxx shall
submit to such medical examinations, supply such information and execute such
documents as may be required by the insurance company or companies to whom the
Company may apply for such insurance. If such insurance is obtained by the
Company and if, pursuant to the provisions hereof, Xxxxx during his lifetime
ceases to be an employee of the Company pursuant to this agreement, Xxxxx
shall have the right, consistent with the terms of the insurance policy, to
purchase from the Company the policy of insurance on his life held by the
Company hereunder, at a price equal to the cash surrender value plus the
unearned premiums, determined at the date of such cessation. Such right of
purchase shall be exercised by notice given to the Company within ten (10)
days after such cessation, and payment of the purchase price shall be made in
cash within such period of time. Upon receipt of the purchase price, the
Company will deliver the policy of insurance and will execute all necessary
instruments of transfer. Irrespective of whether or not Xxxxx exercises his
right to purchase such insurance policy, the Company shall have no further
obligation to maintain in effect such policy of insurance after Xxxxx'x
termination of employment with the Company.
7. TERMINATION: Xxxxx'x employment shall terminate upon the occurrence of
any of the following events prior to the scheduled termination of this
agreement set forth in paragraph "1" hereof:
(a) Xxxxx'x death.
(b) Xxxxx'x total incapacity or total disability which shall continue for a
continuous period of at least twelve (12) months. Verification of total
incapacity or total disability resulting in termination under this clause
7(b), shall be by a medical doctor designated by the Board of Directors, at
the expense of the Company, and verification may be repeated at one month
intervals during the entire period of incapacity or disability. In the event
the doctor engaged to verify the disability or incapacity fails to confirm the
validity of the incapacity or disability, the issue shall be settled by
arbitration as provided in paragraph 16. If Xxxxx'x incapacity or disability
in insured against by a Company insurance policy, all definitions and
requirements of such policy shall govern in the determination of incapacity or
disability.
(c) Termination by the Board of Directors for good and sufficient cause. In
the event of termination for cause, Xxxxx shall receive a written notice from
the Board of Directors of the Company.
Upon termination of employment in accordance with this paragraph, the Company
shall be under no further obligation to Xxxxx under this agreement, except as
otherwise stated in this agreement.
8. TERMINATION CAUSED BY XXXXX'X DEATH: In the event this agreement is
terminated pursuant to paragraph 7(a) hereof, the Company agrees to pay to the
beneficiary named in any policy or policies of insurance maintained on Xxxxx'x
life, or to his estate if no such beneficiary is designated. In addition, the
Company shall pay to Xxxxx'x estate any accrued but unpaid salary, vacation
pay and accrued incentive bonuses.
9. TERMINATION CAUSED BY XXXXX'X DISABILITY: In the event this agreement is
terminated pursuant to paragraph 7(b) hereof Xxxxx shall be entitled to
receive his salary from the Company to the date of termination. It is the
intention of the parties to this agreement that the Company will undertake, at
its expense, if possible and economically feasible, to obtain disability
insurance for the protection of Xxxxx, during the course of his employment
with the Company, which insurance shall provide monthly benefits in the amount
of at least $3,500.00 for the purpose of protecting Xxxxx in the event of his
disability. Said sum, upon payment to Xxxxx, shall be received by him in full
payment of any and all obligations of the Company to pay salary to Xxxxx
except that Xxxxx shall never-the-less be entitled to receive any accrued but
unpaid salary, incentive bonuses and/or unpaid salary accruals.
10. TERMINATION FOR CAUSE: In the event this agreement is terminated
pursuant to the provisions of Paragraph 7(c) hereof, then in such event, Xxxxx
shall be paid all salary, sick pay or vacation pay and accruals to which he is
entitled to the date of termination.
11. DEFINITION OF BOOK VALUE: Whenever in this agreement the term "book
value" is used, it shall mean the book value of the stock of the Company, as
of the end of the calendar month preceding termination, as determined by the
certified public accountants then servicing the Company, and such
determination, when made and delivered to the Company and Xxxxx or his
representative, shall be binding upon all parties bound by the terms of this
agreement. Such determination, which may be based on the last certified audit
and carried forward unaudited, shall be made in accordance with generally
accepted accounting practices and the following shall be observed:
(a) Goodwill shall be included and shall equal an amount equal to 33-1/3% of
the retained earnings, if any, but goodwill shall not exceed $3,000,000.00.
(b) All outstanding Preferred Stock shall be treated as if converted pursuant
to the provisions of the Certificate of Incorporation.
Said determination shall be made within ten (10) days after termination of
Xxxxx'x employment.
12. RESTRICTIVE COVENANT:
(a) Should Xxxxx cease to be employed by the Company by reason of any breach
on the part of Xxxxx, or pursuant to Paragraph 7(c) of this agreement, Xxxxx
will not, without the prior written consent of the Company, signed by the
Chairman of the Board of Directors of the Company, at any time during the one
year period after the date such employment shall cease, directly or
indirectly, in association with or as a stockholder, director, officer,
consultant, employee, member or otherwise of or through any corporation,
partnership, association or other entity, engage in any enterprise or business
which renders services which are competitive with the business of the Company
as at such date, in the geographical area where the business of the Company is
now or then conducted.
(b) In consideration of this agreement, Xxxxx hereby covenants and agrees with
the Company that during the course of this agreement and for a period of
twelve (12) months subsequent to its termination, he will not solicit,
directly or indirectly, an account which is a client of the Company at any
time within one (1) year prior to the date of such termination. Xxxxx further
agrees that he will preserve as confidential, all proprietary information
pertaining to the business of the Company that may be obtained by him from any
sources of any sort during the term of this agreement or at any time prior to
the date hereof and to the extent that such proprietary information does not
become public knowledge, other than by violation of this agreement, and that
he will not, without written authorization from the Company, disclose to
others during the course of this agreement, or thereafter, any of such
proprietary information obtained by him. Xxxxx agrees to turn over to the
Company any and all written data pertaining to the foregoing in the event of
termination of employment.
13. REMEDY FOR BREACH: Both parties recognize that the services to be rendered
under this agreement by Xxxxx are special, unique and of an extraordinary
character and that in the event of the breach by Xxxxx of any terms and
conditions of Paragraph 13, the Company shall be entitled, if it so elects, to
institute and prosecute proceedings in any court of competent jurisdiction
either in law, or in equity, to obtain damages for such breach or to enjoin
Xxxxx from violating the terms and conditions, but nothing herein contained
shall be construed to prevent such remedy in the courts, in case of any breach
of the terms and conditions of paragraph 11, as the Company may elect to
invoke.
14. INVESTMENT BY XXXXX IN OTHER ENTERPRISES: Notwithstanding any provision
contained herein to the contrary, it is understood that Xxxxx shall have the
right and privilege, at any time, to invest in any non-competitive or a
competitive enterprise or business whose capital stock has been listed on a
national securities exchange or traded in the over-the-counter market,
provided the total direct and indirect investment of Xxxxx, his spouse and
dependents, represents not more than two per cent (2%) of the total capital
stock of such competitive enterprise.
15. FRINGE BENEFITS: It is understood and agreed that in addition to the
compensation to be paid to Xxxxx pursuant to Paragraph 4 hereof, the Company
shall afford to Xxxxx fringe benefits during the life of this agreement at
least equivalent to the benefits received by him from the Company during the
fiscal year 2000/2001.
16. ASSIGNMENT: This agreement shall inure to the benefit of and be binding
upon the Company, it successors, assigns and the estate of Xxxxx.
17. ARBITRATION: Any controversy or claim arising out of or relating to this
agreement or the breach thereof (except Paragraph 10 relating to termination
for good and sufficient cause, Paragraphs 12 and 13, relating to the
Restrictive Covenant and remedy for its breach), shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator(s), may be
entered in any Court having jurisdiction thereof. All arbitration shall be
held in Nassau County, New York, and it is understood and agreed that no award
shall be made by the Arbitrator(s) which is inconsistent with the terms and
conditions of this agreement.
18. CONSTRUCTION: This agreement shall be construed in accordance with the
laws of the State of New York.
19. MODIFICATION: This agreement contains the entire agreement among the
parties, encompasses any and all prior agreements and cancels any prior
agreement between the parties, and shall not be amended, altered or modified,
except by an instrument in writing agreed to and executed by the parties.
20. RENEWAL: Provided that this agreement is in full force and effect at the
end of its then current term, it shall be automatically renewed for successive
periods of one year each, unless either party gives written notice to the
other of his or its election to terminate the agreement at the end of the then
current term. Such notice must be given in writing and shall be given no more
than three nor less than one month prior to the expiration of the then current
term.
21. STOCK BONUS: The Company recognizes that Xxxxx was singularly instrumental
in its merger with XxxxxxxxXxxxxxxxxXxxx.xxx., Inc. In recognition of his
efforts with regard thereto, the Company grants to Xxxxx an option to purchase
250,000 shares of the Company's capital stock at an option price of
$0.25/share. The option may not be exercised prior to September 24, 2001.
22. BOARD APPROVAL: The terms of this employment agreement and the stock
option bonus set forth hereinbefore are subject to ratification by the
Company's Board of Directors.
IN WITNESS WHEREOF, this agreement has been duly executed the day and year
first above written.
APO HEALTH, INC.
By: /s/
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H. Xxxxx Xxxxx, President
By: /s/
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Xx. Xxx Xxxxx, CEO, Secretary
