Exhibit 6
EMPLOYMENT CONTRACT
THIS AGREEMENT, executed on the date (or dates) set forth below, by and
between:
FIX-CORP. INTERNATIONAL, INC., a Delaware corporation with its
principal place of business located at 00000 Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxx 00000, acting through its authorized officer Andy Press,
and hereafter referred to as either as the Company or Fix-Corp.;
- and -
Xxxx Xxxxxx, an individual residing at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx
Xxxxxxx, Xxxx 00000, acting on his own behalf and hereafter referred to as Xxxx
Xxxxxx or Employee;
Declare as their mutual intent and purpose as follows.
RECITALS:
WHEREAS, the Company desires to engage Xxxx Xxxxxx to perform services for
the Company, Fix-Corp., as well as its present subsidiary Fix-Corp Industries,
Inc., or any future parent or subsidiary company of Fix-Corp., or any affiliate
of Fix-Corp International, Inc. and Fix-Corp Industries, Inc.; and
WHEREAS, Xxxx Xxxxxx ["Employee" herein] desires to perform such services
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in exchange for the above covenants and with both parties
intending to be legally bound, Xxxx Xxxxxx agrees to become an Employee of
Fix-Corp. pursuant to the terms and conditions set forth below.
1. TERM
(a) The Company agrees to employ Employee, and the Employee agrees to
serve, pursuant to the terms and conditions of this Agreement for a period
commencing on 1/1/97 and ending three years thereafter, or such shorter
period as may be provided for herein. The period during which Employee is
employed hereunder is hereafter referred to as the "Employment Period."
2. DUTIES AND SERVICES
(a) During the Employment Period, Employee shall be employed in the
business of the Company and shall also perform services in a responsible
executive or managerial capacity for any
of the other subsidiaries or affiliates of the Company, or by any of its
subsidiaries or affiliates. In performance of his duties, Employee shall be
subject to the direction of the Board of Directors of the Company and of the
Board of its subsidiaries and/or affiliates. Employee agrees to his employment
as described in this Section 2 and agrees to devote all of his time and efforts
to the performance of his duties under this Agreement. Employee shall make
himself available to travel as the needs of the business require.
(b) It is agreed that the Employee will serve on the Board of Directors of
Fix-Corp. with the title of President and Chief Executive Officer.
(c) It is further agreed that the employee will serve on the Board of
Directors of every subsidiary and affiliate of the Company, both presently
existing and to be acquired in the future, with such responsibilities and duties
as the Board of Directors of every subsidiary and affiliate of the Company shall
formulate and determine, along with such job titles.
3. COMPENSATION
(a) As full compensation for his services hereunder, the Company shall pay
Employee, during the Employment Period, a salary payable in equal [SEMI-MONTHLY
OR MONTHLY] installments at the annual rate of $200,000 for the first year,
$250,000 for the second year and $300,000 for the third year. Nothing contained
herein shall preclude Employee from participating in the present or future
employee benefit plans of the Company or of its subsidiaries or affiliates if he
meets the eligibility requirements therefor.
(b) If for any reason, the Company cannot or elects against honoring the
terms of this Employment Agreement for the full period of the Employment Period,
or if control of the Company should transfer through Merger, Consolidation or
Purchase of Assets to another company which elects to terminate this Employment
Agreement, then Xxxx Xxxxxx shall be entitled to a $2,000,000 severance benefit,
payable upon premature termination of this Employment Agreement.
4. EXPENSES AND BENEFITS
(a) Employee shall be entitled to reimbursement up to a maximum of
$20,000 during each full year of the Employment Period for reasonable travel
and other out-of-pocket expenses necessarily incurred in the performance of
his duties hereunder, upon submission and approval of written statements and
bills in accordance with the then regular procedures of the Company and/or
its subsidiaries or affiliates.
(b) Employee shall be entitled to three weeks of paid vacations, three
weeks of sick leave, and entitled to paid holidays recognized by the U.S.
Government.
(c) Employee shall be entitled to receive health and dental insurance for
himself and for his family.
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(d) Employee shall receive a $750 per month automobile allowance, plus
reasonable car phone expenses and reasonable automotive repairs and maintenance
expenses.
(e) If the Employee should have to make cash contributions to the Company,
all such funds advanced shall be deemed a loan and payable upon demand with
interest at the rate of 10% per annum. If the Company, for any reason, cannot
meet the cash terms of this Employment Agreement, all such amounts not paid
shall be deemed a cash contribution and, by inference, a loan by the Employee to
the Company if the Employee continues to pursue his duties with the same care
and attention as when he was fully paid.
(f) Employee shall receive the option to purchase four million shares of
stock of Fix-Corp. at the fixed price of $0.50 [fifty cents] per share. This
option may be exercised by the Employee at any time during the Employment
Period.
5. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
Employee represents and warrants to the Company that he is under no
contractual or other restriction or obligation which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder, or the
other rights of the Company hereunder and Employee is under no physical or
mental disability that would hinder his performance of duties under this
Agreement.
(b) Employee represents that he is not subject to any judgment or decree,
the effect of which would prohibit, limit or otherwise restrict the employment
of the Employee by the Company pursuant to the terms of this Agreement.
6. NONCOMPETITION
In view of the unique and valuable services it is expected Employee will
render to the Company, and Employee's industry contacts, knowledge of customers,
trade secrets and other proprietary information relating to the business of
Fix-Corp., and in consideration of the shares identified in the Stock
Acquisition Agreement and the Acquisition Agreement of Fix-Corp Industries
[formerly Quantum Chemical Company], and the compensation to be provided
hereunder, the Employee agrees:
(a) During the period Employee is employed by Fix-Corp. or any of the
related companies referenced under this Agreement, he will not otherwise engage
in, or otherwise directly or indirectly be employed by, or act as a consultant
or lender to, or be a director, officer, employee, owner, or partner of, any
other business or organization, whether or not such business or organization now
is or shall then be competing with Fix-Corp. or any of its related companies;
and
(b) For a period of one year after he ceases to be employed by Fix-Corp.
or any of its related companies pursuant to this Agreement or otherwise, the
Employee shall not directly or indirectly compete with or be engaged in the same
business as Fix-Corp. or any of its related
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companies, or be employed by, or act as consultant or lender to, or be a
director, officer, employee, owner, or partner of, any business or organization
which, at the time of such cessation, directly or indirectly competes with or is
engaged in the same business as Fix-Corp. or any of its related corporation.
(c) The provisions of this Section 6 will not be deemed breached merely
because Employee owns not more than 1 percent of the outstanding common stock of
a corporation if, at the time of its acquisition by Employee, such stock is
listed on a national securities exchange, is reported on NASDAQ, or is regularly
traded in the over-the-counter market by a member of a national securities
exchange.
(d) Upon the conclusion of the Employment Period, Employee shall be
allowed to convert this Employment Agreement into a Consultant Agreement, at
Employee's option and with the Company's consent. If so converted into a
consultant agreement, the provision set forth above wherein Employee is required
to devote his time solely to the affairs of Fix-Corp. shall not be applicable,
nor will Employee be barred from acting as a consultant or Director for other
businesses, provided the Employee makes a full disclosure of these affiliations.
7. PATENTS, COPYRIGHTS, TECHNOLOGICAL INVENTIONS
(a) Any interest in patents, patent applications, inventions, copyrights,
developments, and processes ("Such Inventions") which Employee now or hereafter
during the period Employee is employed by any of the Conglomerates corporations
under this Agreement or otherwise may own or develop relating to the fields in
which any of the Conglomerates Corporations may then be engaged shall belong to
the Company; and forthwith upon request of the Company Employee shall execute
all such assignments and other documents and take all such other action as the
Company may reasonably request in order to vest in the Company all his right,
title, and interest in and to Such Inventions free and clear of all liens,
charges, and encumbrances.
8. CONFIDENTIAL INFORMATION
(a) All confidential information which Employee may now possess, may
obtain during or after the Employment Period, or may create prior to the end of
the period Employee is employed by Fix-Corp.. or any of its related companies
under this Agreement or otherwise relating to the financial condition, results
of operations, business, properties, assets, liabilities, or future prospects of
Fix-Corp. or any of its related companies or of any customer or supplier of any
of them shall not be published, disclosed, or made accessible by him to any
other person or entity either during or after the termination of his employment
or used by him except during the Employment Period in the business and for the
benefit of the Company, in each case without prior written permission of the
Company or, at the election at any time of Fix-Corp., without the prior written
permission of Fix-Corp., Employee shall deliver to the Company all tangible
evidence of such confidential information prior to or at the termination of his
employment.
9. KEY MAN LIFE INSURANCE
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(a) The Company agrees to purchase a $2,000,000 term life insurance policy
on Employee ["key man life insurance"] and Employee shall submit to such
physical examinations and execute and deliver such documents as may reasonably
necessary to enable the Company, at its sole expense and for its own benefit, to
obtain key man life insurance on Employee. Employee has no reason to believe
that his life is not insurable with a reputable insurance company at rates now
prevailing in the City of Cleveland for healthy men of his age.
10. TERMINATION.
Notwithstanding anything herein contained, if on or after the date this
Agreement is executed and prior to the end of the Employment Period,
(a) Either (i) Employee shall be physically or mentally incapacitated or
disabled or otherwise unable fully to discharge his duties hereunder for a
period of three months, (ii) Employee shall be convicted of a crime, (iii)
Employee shall commit any act or omit to take any action in bad faith and to the
detriment of any of the companies, [or] (iv) Employee shall breach any term of
this Agreement and fail to correct such breach within ten days after commission
of the same, then, and in each such case, the Company shall have the right to
give notice of termination of Employee's services hereunder as of a date (not
earlier than ten days from such notice) to be specified in such notice and this
Agreement shall terminate on the date so specified; or
(b) Employee shall die, then this Agreement terminates on his death,
whereupon Employee or his estate, as the case may be, shall be entitled to
receive only his salary at the rate provided in Section 3 to the date on which
termination shall take effect. Nothing contained in this Section 10 shall be
deemed to limit any other right the Company may have to terminate Employee's
employment hereunder upon any ground permitted by law.
11. MERGER, CONSOLIDATION, SALE OF ASSETS
In the event of a future disposition of (or including) the properties and
business of the Company, substantially as an entirety, by merger, consolidation,
sale of assets, or otherwise, then the Company may elect:
(a) To assign this Agreement and all of its rights and obligations
hereunder to the acquiring or surviving corporation; provided that such
corporation shall assume in writing all of the obligations of the Company
hereunder; and provided, further, that the Company (if and so long as it remains
in business as an independent going enterprise) shall remain liable for the
performance of its obligations hereunder in the event of an unjustified failure
of the acquiring corporation to perform its obligations under this Agreement; or
(b) In addition to its other rights of termination, to terminate this
Agreement upon at least 30 days' written notice by paying Employee the
compensation at the rate provided in Section 3 to the date on which such
termination shall take effect.
12. SURVIVAL
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(a) The covenants, agreements, representations, and warranties contained
in or made pursuant to this Agreement shall survive Employee's termination of
employment.
13. MODIFICATION
(a) This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, and this agreement also supersedes all
existing agreements between Fix-Corp. and Xxxx Xxxxxx concerning such subject
matter, and may be modified only by a written instrument duly executed by each
party.
14. NOTICES
(a) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or delivered against receipt to the party to whom it is to be
given at the address of such party set forth in the preamble to this Agreement
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 14). Any notice given to the
Company shall be addressed to the attention of the Corporate Secretary. Notice
to the estate of Employee shall be sufficient if addressed to Employee as
provided in this Section 14. Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given at
the time of receipt thereof.
15. WAIVER
(a) Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
16. BINDING EFFECT
(a) Employee's rights and obligations under this Agreement shall not be
transferable by assignment or otherwise, and such rights shall not be subject to
commutation, encumbrance, or the claims of Employee's creditors, and any attempt
to do any of the foregoing shall be void. The provisions of this Agreement shall
be binding upon and inure to the benefit of Employee and his heirs and personal
representatives, and shall be binding upon and inure to the benefit of the
Company and its successors and those who are its assigns under Section 11.
17. NO THIRD PARTY BENEFICIARIES
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(a) This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in Section 16).
18. HEADINGS
(a) The headings in this Agreement are solely for the convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
19. COUNTERPARTS; GOVERNING LAW
(a) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to the conflict of
laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date (or dates) set forth below.
FIX-CORP INTERNATIONAL, INC. XXXX XXXXXX
/s/ Xxxxxx X. Xxxxx, Asst. Secretary /s/ Xxxx Xxxxxx
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By: Xxxxxx X. Xxxxx/Asst. Secretary
Dated: 1/3/97 Dated: Jan 3 97
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