Executive Employment Agreement - HealthCore Medical Solutions Inc. and Neal J. Polan
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 30, 1998, between HealthCore Medical
Solutions, Inc., a Delaware corporation (the "Company"), and Neal J. Polan (the
"Employee").
WHEREAS, the Company desires to retain the services of the Employee,
and the Employee desires to provide such services to the Company, on the terms
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment and Duties.
(a) The Company hereby employs the Employee, and the Employee accepts
employment, to serve as Chief Executive Officer of the Company and to perform
such duties consistent with his current responsibilities and as may reasonably
be assigned to him from time to time by the Company's Board of Directors. The
Employee shall also serve without additional compensation as Chairman of the
Board of Directors of the Company, if so elected or appointed.
(b) The Employee hereby agrees to perform such duties, to fulfill such
responsibilities and to serve the Company faithfully, industriously and to the
best of his ability, subject to the direction and control of the Company's Board
of Directors. The parties hereto acknowledge that Employee shall not be required
to devote more than 50% of his working time to his responsibilities hereunder
and that Employee shall not be restricted in his abilities to pursue other
business interests during the remaining portion of his working time.
2. Term; Termination.
Except in the case of earlier termination as hereinafter specifically
provided in Paragraph 4, this Agreement shall be effective as of September 30,
1998 and the term hereof and the Employee's employment hereunder shall continue
until November 30, 2000 (the "Initial Term"). This Agreement shall be renewed
automatically for successive one year terms thereafter (each, a "Renewal Term")
unless either party gives not less than 30 days prior written notice to the
other party that such party elects to have this Agreement terminate at the end
of the Initial Term or the then current Renewal Term.
3. Compensation; Expenses; Benefits.
(a) As compensation for his services hereunder in whatever capacity
rendered, the Company shall pay the Employee a salary, payable in accordance
with the Company's standard payroll practices with respect to senior officers of
the Company and/or its
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affiliated corporations, at a rate of $150,000 per year; provided, that such
salary shall be increased to $200,000 for the twelve month period commencing
December 1, 1998. Such salary may be increased, but not decreased by the Board
of Directors and shall be reviewed by the Board no less frequently than
annually. Such salary and the Employee's employee benefits provided pursuant to
Paragraph 3 hereof shall continue to be paid and provided, regardless of any
illness or incapacity of the Employee, until this Agreement is terminated.
(b) The Employee shall also be entitled to receive such bonuses as the
Company's Board of Directors or Compensation Committee, if any, may deem
appropriate. The Employee shall also be entitled to participate in the Company's
employee stock option plan, as may be determined by the Company's Board of
Directors or Compensation Committee, if any.
(c) The Employee and the Employee's spouse and children, if any, shall be
entitled to participate in all employee benefit plans generally available from
time to time to the senior officers of the Company, so long as such benefits
comply with applicable law (including without limitation the Internal Revenue
Code and ERISA). In addition, Employee shall be entitled to annual vacation in
accordance with Company policy at such times as are mutually convenient to
Employee and the Company.
(d) The Employee shall be entitled to advances or reimbursement in
accordance with the Company's standard business practices for his ordinary and
necessary business expenses incurred in the performance of his duties hereunder
provided that his claims therefor shall be supported by the documentation
required by the Company in accordance with its usual practice.
(e) The Company shall supply a luxury automobile to Employee for his use
and shall pay all costs, including insurance, associated therewith.
(f) The Company shall pay the yearly premium during the Initial Term and
any subsequent Renewal Term on a term life insurance policy for the Employee in
the amount of $2,000,000 under which the Employee's estate shall be the
beneficiary.
4. Termination of Employment. If any of the following events occur before
the expiration of the Term, Employee's employment with the Company shall
terminate upon the occurrence of such event:
(a) Employee's death, or, in the event that the Company maintains
disability insurance for the Employee, any illness, disability or other
incapacity that renders Employee physically unable regularly to perform his
duties hereunder for a period in excess of one hundred eighty (180) days. The
determination regarding whether Employee is physically unable regularly to
perform his duties hereunder shall be made by the Company's Board of Directors
in the reasonable, good faith exercise of their judgment.
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(b) Thirty (30) days after the Company gives Employee written notice of the
termination of Employee's employment if said termination is for cause. For
purposes of this Paragraph 4(b), "cause" is defined as (i) Employee's conviction
of a crime constituting a felony or involving moral turpitude or (ii) an act by
Employee of material dishonesty or fraud in connection with Employee's
performance of his duties to the Company.
5. Representations, Warranties and Covenants of Employee. The Employee
represents, warrants and covenants to and with the Company that (a) he is not
and will not become a party to any agreement, contract or understanding, whether
employment or otherwise, and that he is not subject to any order, judgment or
decree of any court or governmental agency, which would, in any way, restrict or
prohibit him from undertaking or performing his employment in accordance with
the terms and conditions of this Agreement and (b) he is of sufficient physical
and mental health to fulfill his duties, obligations and responsibilities under
the terms of this Agreement.
6. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in that state.
(b) Notices. All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) delivered by hand (with receipt confirmed), (b) sent by telex or telecopier
(with receipt confirmed), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if sent by
Express Mail, Federal Express or other express delivery service (receipt
requested), in each case to the appropriate addresses and telecopier numbers set
forth below (or to such other addresses and telecopier numbers as a party may
designate as to itself by notice to the other parties):
If to the Employee:
Neal J. Polan
1325 Avenue of the Americas,
Suite 1200 New York, New York 10019
Telecopier No.: (212) 399-9199
with a copy to:
Neal J. Polan
20 Cameron Drive
Greenwich, Connecticut 07831
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If to the Company:
HealthCore Medical Solutions, Inc.
11904 Blue Ridge Boulevard
Grandview, Missouri 64030
Telecopier No.: (816) 765-6573
with a copy to:
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 682-5729
Attention: Sheldon E. Misher, Esq.
(c) Entire Agreement; Amendment. This Agreement shall supersede all
existing agreements between the Employee and the Company relating to the terms
of his employment. This Agreement may not be amended except by a written
agreement signed by both parties.
(d) Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(e) Assignment. Subject to the limitations below, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, representatives, successors and assigns. This Agreement shall
not be assignable by the Employee, and shall be assignable by the Company only
to an affiliate of the Company or any corporation resulting from the
reorganization, merger or consolidation of the Company with any other
corporation or any corporation to which the Company may sell all or
substantially all of its assets.
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IN WITNESS WHEREOF, the parties hereto have each executed this Executive
Employment Agreement as of the day and year first above written.
HEALTHCORE MEDICAL SOLUTIONS, INC.
By:/S/ DAVID L. MULLIKIN
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Name: David L. Mullikin
Title: President and Chief Operating
Officer
/S/ NEAL J. POLAN
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Neal J. Polan
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