EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of October 6, 1995, by and between
Xxxxxxx Xxxxxxxxx, an individual residing at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX
00000 ("Xxxxxxxxx" or the "Employee") and PDK Labs Inc., having offices at 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the "Company").
WHEREAS, the Company is desirous of engaging the exclusive employment
services of Xxxxxxxxx and Xxxxxxxxx is desirous of providing her exclusive
employment services to Company in connection with the day-to-day operations of
the Company.
NOW, THEREFORE, in consideration of mutual premises and covenants
contained herein, the parties hereto agree as follows:
1. The Company hereby agrees to employ Xxxxxxxxx and Xxxxxxxxx hereby
agrees to be exclusively employed as the Company's Comptroller. Xxxxxxxxx shall
have the title "Comptroller" and shall have the duties commensurate with such
title.
2. The term of this Agreement shall be for the period of five (5) years
commencing on the date first set forth above; provided, however, that this
Agreement may be cancelled by the
Company, at its sole direction, at any time after October 5, 1996, upon ninety
(90) days written notice to Employee. Each twelve month period during the term
of this Agreement (i.e. October 6th through October 5th) is sometimes
hereinafter referred to as a "Contract Year."
3. (a) As consideration for Xxxxxxxxx'x agreement to provide her
exclusive services to the Company, the Company hereby agrees to pay to Xxxxxxxxx
a minimum salary of $85,000 per annum for each year during the Term hereof. Such
salary hereunder shall be payable by the Company on a bi-weekly basis.
(b) As additional consideration for Xxxxxxxxx'x employment
hereunder, upon the execution hereof, Corporation hereby grants to Hollander
fifty thousand (50,000) shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock"); provided however, that commencing upon the date
hereof through March 31, 2001 for each three (3) month period (or any part
thereof) that Xxxxxxxxx is not employed by Corporation pursuant to the terms of
this Agreement for any reason whatsoever, unless otherwise agreed in writing by
the parties, Xxxxxxxxx shall automatically forfeit Two Thousand Five Hundred
(2,500) shares of
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Common Stock. The shares of Common Stock to be delivered to employee hereunder
are not registered pursuant to the Securities Act of 1933 as amended or the
securities laws of any state and may not be transferred unless registered
thereunder or qualifying for an exemption from registration. Notwithstanding the
foregoing, in the event that (i) Corporation shall file a Registration Statement
with the Securities and Exchange Commission on Form S-1 (or any other
appropriate form) during the Term hereof and (ii) the underwriter with respect
to the Registration Statement (or Corporation, if there is not an underwriter)
has agreed to register any or all shares of Common Stock granted to Xxxxxxxxx
hereunder, then none of such shares which are so registered will be subject to
forfeiture thereafter and only those shares, if any, that remain unregistered
shall be subject to the provisions of forfeiture (on a prorated basis) set forth
in the immediately preceding sentence.
(c) Xxxxxxxxx expressly agrees that in the event that there
are any resale limitations now in existence or hereafter imposed upon any shares
of Common Stock owned by Xxxxxxx Xxxxxxxx during the term hereof, then none of
the shares of Common Stock issued to Xxxxxxxxx hereunder may be sold until such
time as all
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such resale limitations have expired. The foregoing is in addition to the
re-sale limitations of Rule 144. All of the shares of Common Stock issued to
Employee hereunder, as well as the Common Stock issued to Hollander pursuant to
the Stock Purchase Agreement, shall bear an appropriate legend evidencing the
foregoing restrictions.
(d) Xxxxxxxxx agrees to sign a Voting Trust Agreement in the
form annexed hereto as Exhibit A wherein Xxxxxxxxx shall vote along with and in
favor of management for ten (10) years on all issues put to the vote of the
shareholders of the Company.
4. Employee shall be entitled two (2) weeks paid vacation during the
first Contract Year and three (3) weeks paid vacation during each subsequent
Contract Year of the term hereof. Additionally, Employee shall be entitled to
all health and insurance benefits and any other employee benefit plans afforded
by the Company to all of its employees. The Company shall have the right, but
not the obligation, to take out "key-man" insurance on Employee. Employee agrees
to consent to and make herself available for any physical examinations required
by any insurance company
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chosen by Company in connection with Company's procurement of any such "key-man"
insurance during the term hereof.
5. (a) During the Term hereof, Employee agrees to be exclusively
employed by the Company and agrees that she shall be a full time employee of the
Company and as such, shall devote her best efforts and all of her time to
advance the interests of Company. The foregoing proscription shall not prohibit
Employee from making any passive investments in any corporations, or being a
limited partner in any limited partnership.
(b) For no less than three (3) years after the execution
hereof, whether or not employed by the Company, and for one (1) year after the
expiration or termination of this Agreement, Employee agrees that she shall not,
directly or indirectly, alone or as a member of a partnership, or as an
employee, officer, director, or shareholder of any other corporation, be engaged
in or concerned with any other duties or pursuits within a radius of one hundred
(100) miles from the Company's then principal executive office (the "Non Compete
Territory") that may compete directly or indirectly in any manner whatsoever
with the Company's business at the date of the expiration or termination hereof,
except with the
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prior written consent of Company, which consent may be withheld by Company in
its sole and absolute discretion.
(c) Xxxxxxxxx expressly agrees that for one (1) year after the
expiration or termination of this Agreement, within the Non-Compete Territory,
Hollander shall neither (i) engage in any business activities whatsoever with
any customers of the Company, nor (ii) contact any customers of the Company for
any purpose whatsoever.
6. Employee acknowledges and agrees that her services to be provided to
Company hereunder are of a unique and extraordinary character, and to replace
the services of Employee would cause the Company great hardship. Accordingly, in
the event of a breach or threatened breach by the Employee of the provisions
herein, including but not limited to Sections 5 and 7 hereof, in addition to
Company's other remedies hereunder, Company shall be entitled to a temporary or
permanent injunction restraining Employee from violation of any of the terms
hereof. Nothing herein contained shall be construed as prohibiting Company from
pursuing any and all other remedies available to it for any such breach or
threatened breach.
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7. Any financial advice, memoranda, customer list or other
documentation which Employee becomes aware of during the term of this Agreement
shall not be disclosed to any third-party or person for any reason whatsoever
without the express, prior written approval of Company, which may be withheld by
Company in its absolute discretion. It is expressly acknowledged and agreed by
Employee that Company shall be furnishing proprietary, confidential product,
financial, marketing, organizational, customer and other data relating to the
business of Company (hereinafter referred to, together with the advice,
memoranda and documentation referred to in the preceding sentence as
"confidential information") during the term hereof. Confidential information
includes not only original information, but also information transferred orally,
in writing or by any other means whether now known or hereafter devised. All
confidential information which Employee learns of during the term hereof and all
confidential information given by Company to Employee will be considered
non-public and shall be retained as such by Employee. Confidential information
shall be used by Employee solely in connection with his duties hereunder and for
no other purpose whatsoever. Upon the termination of this Agreement
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for any reason, Employee shall immediately deliver to Company all copies of any
confidential information and other materials delivered to Employee by Company
and all abstracts and summaries thereof prepared by Employee. Employee shall not
have the right to disclose any confidential information to any third-person or
entity for any reason whatsoever upon the expiration or termination of this
Agreement.
8. It is expressly understood that the services of Employee are unique
and accordingly, Employee may not assign any of her rights or obligations
hereunder. Company shall have the right to assign its rights and obligations
hereunder, provided, however, that Company shall remain liable for all
compensation to Employee hereunder.
9. Each of the parties hereto represents, warrants and agrees that it
has the full right, power and authority to enter into this Agreement, and upon
the full execution hereof this Agreement shall be a valid and binding and
enforceable against each of the parties in accordance with its terms.
10. Each of the parties hereto expressly acknowledges and agrees that
all representations, warranties and agreements made by
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both parties hereunder, except with respect to the Company's obligation to
compensate Employee subsequent to the expiration or termination hereof, shall
survive the expiration or termination of this Agreement.
11. This Agreement, including any exhibits and schedules hereto and
other documents and certificates delivered pursuant to the terms hereof, sets
forth the entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein, and supersede all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto.
12. All notices requested and other communication required herein shall
be in writing and shall be deemed to be duly given and delivered by either
certified or registered mail, return receipt requested with postage prepaid or
by private overnight mail service (e.g., Federal Express).
If to Xxxxxxxxx:
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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If to Company;
PDK Labs Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With copy to:
Xxxxxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Or in each case to such other person who addresses any party shall
furnish to the other party in writing.
13. The remedies provided herein shall be cumulative and shall not
preclude Company from asserting any other rights or seeking any other remedies
against Employee.
14. If in any jurisdiction, any provision of this Agreement or its
application to any party or circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such jurisdiction, be ineffective
only to the extent of such restriction, prohibition or unenforceability without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of such provision in any other jurisdiction or its application
to other parties or circumstances.
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15. No party hereto shall make or issue, or cause to be made or issued,
any announcement or written statement concerning this Agreement or the
transactions contemplated hereby for dissemination to customers, suppliers,
sales representatives or employees or the general public prior to the execution
hereof.
16. This Agreement and the legal relations among the parties hereto
shall be governed by and constructed in accordance with the laws of the State of
New York without regard to its conflicts of law doctrine. Each of the parties
hereto irrevocably consents to the jurisdiction of the Federal and State Courts
located in the State of New York.
17. This Agreement may be executed simultaneously in one or more
original or facsimile counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the 6th
day of October, 1995.
PDK LABS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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