This Agreement effective as of September 15, 1999, by and between Re-Track USA
Inc. (hereinafter the "Company") Marketing Sciences, Inc., d/b/a Xxxxxxx
Associates Atlanta (hereinafter "PAA"); and Xxxxxxxxxx Enterprises, Inc. d/b/a
TA Management (hereinafter "TAM").
In consideration of the mutual promises and covenants contained below, the
parties agree as follows:
1. SERVICES TO BE RENDERED.
PAA and TAM shall assist the Company in preparing for their anticipated initial
public offering ("IPO") which is expected to complete in or about May/June 2000.
PAA and TAM shall assume various marketing, sales, manufacturing, operations,
communications and administrative roles during the pre-IPO period. PAA and TAM
shall report to the President and CEO of the Company. Activities and functions
shall include but are not limited to: (1) planning and strategy development; (2)
manufacturing and operations development; (3) marketing, sales, distribution,
communications and product development, planning and execution; (4) intellectual
property analysis and review; (5) alliances/partnering/acquisitions analysis and
review. PAA and TAM are not attorneys and do not represent themselves as being
capable of rendering legal opinions. Company agrees that it has not retained PAA
and TAM for that purpose, and is not and will not rely on PAA and TAM for legal
advice/opinions.
2. ROLES AND RESPONSIBILITY.
(A) PAA shall appoint its employee Xxxxxxx X. Xxxxxxx (Xxxxxxx) to work with the
Company. Xxxxxxx shall function as and carry the title of the Acting Vice
President of Marketing and Sales with responsibility for directing all marketing
and communications activities. Xxxxxxx will not be compensated by Company for
his service as Acting Vice President of Marketing and Sales; however, Papciack
will be included in the Company's liability policy, covering any and all claims
which may be made against him for actions as an Officer of Company, or for any
vicarious liability based on his status as an Officer, whenever the act upon
which the claim is based occurred and regardless of the claim's merit.
(B) PAA shall assist and contribute to Investor and Investment Community
communications.
(C) PAA shall participate in the management team and, where requested, shall
participate with Company Management in decision making.
(D) TAM shall appoint Xxxxxx Xxxxxxxxxx (Xxxxxxxxxx) to work with the Company as
Acting Vice President of Manufacturing with responsibility to direct all
manufacturing operations, distribution and development activities. TAM may also
assist the Company's management with all aspects of the IPO and daily business
activity. Xxxxxxxxxx shall not be compensated by Company for his service as
Acting Vice President of Manufacturing however, Xxxxxxxxxx will be included in
the Company's liability policy, covering any and all claims which may be made
against him for actions as an Officer of Company, or for any vicarious liability
based on his status as an Officer, whenever the act upon which the claim is
based occurred and regardless of the claim's merit.
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(E) In the event PAA or TAM require expertise from outside third-party vendors
to assist them in executing their responsibilities and completing the tasks
hereinafter defined below, the Company shall have the right to review and
approve such third-party vendor prior to PAA or TAM contracting with such
third-party vendor. All third-party vendors shall be subject to the terms and
conditions of confidentiality as provided herein and at the Company's request
execute a non-disclosure agreement. In the event the Company approves such
request, the Company agrees to be solely liable to the third-party vendor for
the cost of such services. As of this agreement, the Company approves of all
third party vendors as well as all related cost estimates and invoices from the
Effective date to the date of execution of this Agreement.
(F) PAA and TAM represent and acknowledge that they are authorized to provide
the Company with the curriculum vitae of Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxxx
to be used in connection with, and published in, the Company's prospectus and
business plan and that during the term of this Agreement the Company may use
such information in any communication and it may further represent that they are
acting members of the Company's management team for the term of this Agreement.
However, no communication containing any reference to Xxxxxxx or Xxxxxxxxxx
beyond their name, curricula vitae, and status as acting officers may be issued
by Company without the express written consent and approval of Xxxxxxx and/or
Xxxxxxxxxx.
3. TASKS.
Where the Company has approved the tasks defined below, PAA and TAM will assist
the Company in planning, strategy development, review, writing and editing of
the following:
IPO Development Activities.
Business Plan (financial, marketing, sales, communications,
manufacturing, operations, investor relations and activities,
resource needs and utilization).
Prospectus development.
Pricing (market analysis, product and manufacturing cost
analysis).
Acquisition Plan (products and companies).
Product Development activities (existing product validation,
line extensions, new product opportunities, prototype
development).
Market Development (targets, segmentation, traditional and
new channels).
Test Market Sales Program (product validation updated).
Clinical Studies (white paper development).
Advisory Board Development.
Manufacturing & Operations
Manufacturing and Operations Plan.
Resource Development and Strategy (contract mfg., alliances,
and partner.).
Research & Development Strategy and Plan (products, market).
Facilities Planning.
Human Resources and Utilization Plan (infrastructure, ext.
resources).
Regulatory and compliance.
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Marketing Programs, Sales, Distribution
Direct Sales (Internet Direct, Sales Management Structure).
Independent Distributors. Contract and Specialized Sales
Forces. Agents. Alliances.
Licensing and Distribution Agreements.
Launch the Company "Event" (pre IPO).
Publicity Campaign.
Safety Information Program.
Web Site Development Program.
Out Source Distribution and Order Entry Program.
Intellectual Property
Intellectual Properties/Assets.
New Company Name.
New Product Name(s).
Company Agreements (Internal, External, non-compete,
confidentiality, manufacturing, distribution).
4. TERM AND PERFORMANCE OF PAA AND TAM.
(A) The term of this Agreement shall be from the September 15th, 1999
(hereinafter the "effective date") to September 14th, 2000, and shall expire
automatically on that date unless otherwise renewed in writing.
(B) All work performed hereunder by PAA and TAM shall be in concert with
industry standards for such work and performed to the Company's reasonable
satisfaction. PAA and TAM shall dedicate a minimum of three days per week to the
Company
5. FEES AND OTHER PAYMENTS.
(A) PAA and TAM shall each be paid $_________ per month for the period beginning
as of the execution of this agreement through its term, to be paid monthly.
Monthly payments will be made not later than the first day of each calendar
month covering the period from the fifteenth of the previous month to the
fifteenth of the current month.
PAA and TAM are also entitled to Deferred Compensation. The deferred
compensation is $_________ each to PAA and TAM. The Deferred Compensation shall
be paid by Company at the earlier of September 15, 2000, or five (5) days after
the net proceeds of the IPO are received by Company. Payment is not contingent
on the net proceeds being sufficient to pay this obligation.
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(B) As a signing bonus, the Company issued 75,000 shares of stock each to PAA
and TAM or their designees on of the Effective Date of this Agreement. Within a
reasonable time after execution of this Agreement, Company shall issue a letter
to both A and TAM indicating the value of the stock for tax reporting purposes.
The stock is considered fully earned; however, should either PAA or TAM fail to
complete this Agreement through June 15, 2000, or should the Company be sold
prior to that date, then the Company shall be entitled to void 1/9th of the
non-completing party's stock for each month not completed, up to June 15, 2000.
The Shares to be issued in accordance with this agreement will not have been
registered under the Securities Act of 1933, as amended, or registered or
qualified under any state securities laws, and as such, the Shares are and will
be restricted securities as such term is defined under the Securities Act of
1933, and the Shares will be issued in a transaction exempt from the
registration requirements of the 1933 Act and the registration or qualification
requirements of applicable state securities laws. The Shares will be and will
have been acquired by PAA and TAM for investment purposes only and not with a
view to distribution or resale and may not be made subject to a security
interest, pledge, hypothecated, sold or otherwise transferred unless such Shares
are subsequently registered in accordance with the 1933 Act and qualified or
registered under applicable state securities laws or an exemption from
registration and qualification is available, and that, except as otherwise
provided in this Agreement, the Company is under no obligation to register or
qualify the Shares. The Company may require an opinion of its counsel prior to
authorizing the registration of any transfer of the Shares in reliance on an
exemption from registration or qualification to the effect that the transfer is
exempt from such registration or qualification. Certificates evidencing the
Shares shall bear a standard form Securities and Exchange Commission restrictive
legend and any such other legends as required by applicable federal and state
laws, and the transfer agent for the Company's class of Common Shares shall be
instructed to place a stop transfer order on the stock books of the Company
restricting the transfer of the Shares.
PAA represents and warrants that PAA, TAM Xxxxxxx Xxxxxxx and/or Xxxxxx
Xxxxxxxxxx agree to execute such other documents and instruments as may be
required by law to effect the compliance of the issuance of the Shares with
federal and state laws.
(C) Company agrees as further additional compensation, to make a one-time
payment of $_________ each to PAA and TAM on the earlier of September 15, 2000
or five (5) business days of the receipt by the Company of the net proceeds of
the IPO. Payment is not contingent on the net proceeds being sufficient to pay
the additional compensation.
(D) Reimbursement for all reasonable and approved travel and other expenses will
be paid to the party incurring the expense within seven business days from date
of submission. PAA and TAM agree to provide the Company with valid receipts for
all expenses.
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6. TRADE SECRETS AND INTELLECTUAL PROPERTY:
(A) With respect to the Company's special business techniques, analyses of the
market, forms, software programs, lists of customers, and all other information
regarding manufacture or distribution of products, PAA and TAM acknowledge that
all of such information:
belongs to the Company; constitutes specialized and highly confidential
information not generally known in the industry; and constitutes trade
secrets of the Company except:
Where the disclosed information is generally known to the
public. Where the disclosed information becomes generally
known to the public after the disclosure through no act or
omission of the recipient. Where the information was
previously known by the parties receiving the information.
Where the information is disclosed by persons with a bona fide
right to possess Confidential Information and to disclose the
information to recipient. Where required by law to disclose
the Confidential Information.
Accordingly, PAA and TAM recognize and acknowledges that it is essential to the
Company to protect the confidentiality of such trade information.
(B) PAA and TAM, thus agree to maintain the confidentiality of such information
and of any other confidential information they acquire in connection with their
association with the Company. Further, as an inducement to the Company to retain
them under this agreement, PAA and TAM will hold such information for the use
and benefit solely of the Company. Company may request, and PAA and TAM will
procure, signed confidentiality agreements in a mutually agreeable form from any
of PAA or TAM's employees, agents, or representatives from whom the Company
requests such agreements.
(C) During the term hereof, and for thirty-six (36) months thereafter, PAA and
TAM, shall not disclose such information to any person, firm, association, or
other entity for any reason or purpose whatsoever, unless such information has
already become common knowledge or unless PAA and/or TAM is required to disclose
it by judicial process.
(D) PAA and TAM acknowledge that in the event a court of competent jurisdiction
determines that PAA and TAM has breached the confidentiality covenants made
herein, the Company may move a court of competent jurisdiction for injunctive
relief without any requirement of posting of an undertaking.
(E) PAA and TAM acknowledge that all work performed, developed and created shall
be property of the Company and PAA and TAM hereby waives any right, title,
interest or ownership whatsoever may be held including but not limited to
proprietary copyright, trademark right or other intellectual property right in
any of PAA and TAM's work product. Inventions by PAA and TAM will be assigned to
the Company. Patent applications for said inventions will list PAA and TAM (Xxx
Xxxxxxxxxx and/or Xxxxxxx X. Xxxxxxx as applicable) as inventor. Inventions by
PAA and TAM not filed for patent by the Company within eighteen (18) months from
the date of disclosure to the Company will become the property of the inventor
(Xxx Xxxxxxxxxx and/or Xxxxxxx X. Xxxxxxx as applicable).
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7. XXXXXXX XXXXXXX
PAA and TAM acknowledge that they may receive from time to time material
nonpublic information concerning the Company and other parties involved with the
Company. PAA and TAM, on behalf of themselves and their affiliates, acknowledge
that they are familiar with the Federal securities laws and regulations
outlawing xxxxxxx xxxxxxx and represent and covenant that they shall act in
strict accordance with such laws and regulations at all times.
8. AGREEMENT NOT TO COMPETE.
The Company has retained PAA and TAM only for the purposes set forth in this
Agreement, and their relationship to the Company is that of an independent
contractor. During the term hereof, PAA and TAM, their employees, agents or
representatives, shall not, directly or indirectly, enter into, or in any manner
take part in, any business, profession. or other endeavor which competes with
the Company in the sale of safety syringe products and syringe technology or any
improvements, enhancements, modifications or line extensions thereto. PAA and
TAM shall not so compete either as an employee, agent, independent contractor,
owner, or otherwise.
9. RESTRICTIVE COVENANT.
(A) For a period of one (1) year after the expiration or termination of this
Agreement for any reason, whether with or without cause, or for a period of time
equal to the length of PAA and TAM's retention by the Company if such tenure
has been for less than one (1) year, PAA and TAM will not, directly or
indirectly, contact any then-existing customer of the Company on behalf of any
other person, firm, company, or corporation for the purpose of assisting such
company with management or marketing relating to any product which may compete
with any syringe product of the Company.
(B) The parties acknowledge that they have attempted to limit PAA and TAM's
right to compete only to the extent necessary to protect the Company from unfair
competition.
(C) PAA and TAM further acknowledge that: (1) in the event their consultancy
with the Company terminates for any reason, they will be able to earn a
livelihood without violating the foregoing restrictions; and (2) that their
ability to earn a livelihood without violating such restrictions is a material
condition to their retention by the Company.
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10. WARRANTY AGAINST PRIOR EXISTING RESTRICTIONS.
PAA and TAM represent and warrant to the Company that they are not a party to
any agreement containing a non-competition clause or other restriction with
respect to: (A) the services which they are required to perform hereunder; or
(B) the use or disclosure of any information directly or indirectly related to
the Company's business, or to the services they are required to render pursuant
hereto.
11. PROHIBITION AGAINST ASSIGNMENT.
PAA and TAM agree, for themselves and on behalf of their successors, heirs,
executors, administrators, and any person or persons claiming under him by
virtue hereof, that this Agreement and the rights, interests, and benefits
hereunder cannot be assigned, transferred, pledged, or hypothecated in any way
and shall not be subject to execution, attachment, or similar process. Any such
attempt to do so, contrary to the terms hereof, shall be null and void and shall
relieve the Company of any and all obligations or liability hereunder.
12. SEVERABILITY.
If any provision, paragraph, or subparagraph of this Agreement is adjudged by
any court of law to be void or unenforceable, in whole or in part, such
adjudication shall not be deemed to affect the validity of the remainder of the
Agreement, including any other provision, paragraph, or subparagraph. Each
provision, paragraph, and subparagraph of this Agreement is declared to be
separable from every other provision, paragraph, and subparagraph and
constitutes a separate and distinct covenant.
13. TERMINATION OF AGREEMENT.
(A) In the event this agreement is terminated as against one of the parties (PAA
or TAM), the terms and conditions of this agreement shall remain in full force
and effect as for the remaining party.
(B) This Agreement may be terminated by any party hereto upon the giving of
sixty (60) days written notice, sent by registered or certified mail, return
receipt requested, to the place designated as provided for in Paragraph 22
below.
(C) In the event of the death of Xxxxxxx Xxxxxxx, this Agreement shall be
immediately terminated as to PAA, but shall remain in full force and effect as
to TAM. In the event of the death of Xxxxxx Xxxxxxxxxx, this Agreement shall be
immediately terminated as to TAM, but shall remain in full force and effect as
to PAA.
In the event of the deaths of either or both Xxxxxxx Xxxxxxx and Xxxxxx
Xxxxxxxxxx, this Agreement shall terminate immediately, with full rights upon
termination set forth in paragraph 14 pass to their estates.
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14. RIGHTS UPON TERMINATION.
(A) The termination of this Agreement by either TAM or PAA shall not affect
their right to receive the Deferred Compensation in the manner set forth in
Paragraph 5(a) and (c).
(B) In the event the Company terminates this agreement as against one of the
parties hereto prior to its expiration, all Deferred Compensation will be paid
to the terminated party at the earlier of than sixty (60) days from the date of
notification of termination or September 15. 2000.
(C) In the event the Company is sold prior to September 15, 2000, all accrued
and Deferred Compensation, shall be paid to PAA and TAM within 30 days after the
receipt by the Company of the net proceeds of such sale. Payment is not
contingent on the net proceeds being sufficient to pay accrued and Deferred
Compensation.
15. INDEMNIFICATION
In exchange for the mutual promises contained herein, and the sum of $10.00,
payment of which is hereby acknowledged, the Company agrees to indemnify and
hold harmless from costs, expenses, and legal fees as a result of any claims
made by any third party. against Alexandris, Papciak, PAA and TAM for any
actions of the Company prior to September 15, 1999.
16. MODIFICATION AND WAIVER.
No waiver or modification of this Agreement shall be valid unless it is in
writing and signed by the Company and , PAA and TAM. The waiver by either party
of a breach of any provision of this Agreement shall not operate as, or be
construed as, a waiver of any subsequent breach.
17. BINDING EFFECT.
This Agreement shall be binding upon, and inure to the benefit of, the Company
and its successors, assigns, heirs, legal representatives, executors, and
administrators.
18. ATTORNEYS' FEES.
If any party to this Agreement should bring an action to enforce its terms. the
prevailing party in such action shall be entitled to recover, a reasonable
attorney's fee.
19. COMPLETE UNDERSTANDING.
This Agreement constitutes the entire Agreement between the parties with respect
to the subject matter hereof This Agreement supersedes any and all other
Agreements, whether oral or in writing, between the parties with respect to the
subject matter hereof
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20. GOVERNING LAW.
This Agreement shall be subject to, and governed by, the laws of the State of
New York. For all matters relating to a dispute of this contract or an
interpretation of any provision herein, the venue for shall be Rockland County,
New York.
21. HEADINGS.
The headings in this Agreement are inserted for convenience only and shall not
be considered in interpreting the provisions hereof.
22. NOTICE.
All notices shall be given in writing and sent by registered or certified mail,
return receipt requested, and shall be addressed to:
in the case of the Company--
Re-Track USA, Inc.
c/o Xxxxxx Xxxxx, President
00 Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000;
in the case of PAA
Xxxxxxx Associates Atlanta
c/o Xxxxxxx X. Xxxxxxx
__________________________
__________________________
and in the case of Xxxxxxxxxx Enterprises, Inc.
c/o Xxxxxx Xxxxxxxxxx,
__________________________
__________________________
and to:
Xxxxxx Xxxxx Xxxxxx Xxxxxx and Xxxxxx, P.A.
X/x Xxxxxx Xxxxxxxxx
0000 Gulf to Xxx Xxxx. #000
Xxxxxxxxxx, XX 00000
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23. REMEDIES.
(A) The Company shall not be limited in remedy, whether in law or equity, in its
enforcement of any provision of this Agreement or in recovery for damages for
any breach thereof Further, PAA and TAM acknowledge that: (1) compliance with
Paragraphs 6 through 10 herein is necessary to protect the Company's business
and good will; (2) a breach of those Paragraphs will irreparably and continually
damage the Company; and (3) an award of money damages will not be adequate to
remedy such harm.
(B) Consequently, PAA and TAM agree that, in the opinion of a court of competent
jurisdiction, they breach or threaten to breach any of these covenants, the
Company. shall be entitled to both: (1) a preliminary or permanent injunction
without the necessity of posting of an undertaking or bond in order to prevent
the continuation of such harm; and (2) money damages, insofar as they can be
determined, including, without limitation, all reasonable costs and attorneys'
fees incurred by the Company in enforcing the provisions of this Agreement.
Nothing in this Agreement, however, shall prohibit The Company from also
pursuing any other remedy.
24. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 9th day of
March, 2000.
PAA: The Company:
Marketing Sciences, Inc., d/b/a Xxxxxxx Re-Track USA, Inc.
Associates Atlanta
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President Xxxxxx Xxxxxxx, C.O.O., Secretary
Xxxxxxxxxx Enterprises, Inc.
(d/b/a TA Management)
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, President
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