EMPLOYMENT AGREEMENT
Exhibit
10.1
This is
an Employment Agreement (“Agreement”) dated this 1st of April, 2009, by and
between MedPro Safety Products, Inc., a Nevada corporation, (“Company”), and
Xxxx X. Xxx, presently residing in Lexington, Kentucky
(“Executive”).
RECITALS
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A.
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Whereas,
Company presently employs Executive and Executive and Company now desire
to enter into this Agreement to reflect the terms and conditions of
Executive’s continued employment with Company as its Chief Financial
Officer; and
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B.
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Whereas,
Executive desires to accept such continued employment on the terms and
conditions herein set forth.
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NOW,
THEREFORE, in consideration of the foregoing and of the covenants and conditions
herein contained, the parties hereto agree as follows:
1. Employment. Company
hereby agrees to continue to employ Executive, and Executive hereby accepts such
continued employment by Company, upon the terms and conditions set forth in this
Agreement.
2. Term. The
term of this Agreement shall be the thirty-six (36) consecutive month year
period commencing January 1, 2009 (“Effective Date”), and ending on December 31,
2011 (the “Term”), unless terminated sooner pursuant to Paragraphs 9 and 10
below. After the Term, this Agreement shall be automatically renewed for
additional twelve (12) consecutive month periods (the “Additional Term(s)”),
unless Company or Executive provides prior written notice of its or his
intention for this Agreement not to be renewed, which written notice shall be
provided not less than thirty (30) days prior to the expiration of the Term or
any Additional Term. Any reference to Term herein shall include the
initial Term and any Additional Term unless expressly provided to the
contrary.
3. Duties. During
the Term, Executive shall hold the position of Chief Financial Officer for
Company and such other affiliates as requested by Company. Provided,
however, Company may alter the title and position held by Executive at any time,
in its sole and absolute discretion. Executive shall perform the
duties customary for that position or any other position held by Executive, and
such other duties as Company may from time to time reasonably assign to
him. Executive agrees to use his best efforts for the benefit of
Company and its affiliates, and throughout the Term shall devote his entire
time, attention, and energies to the business of Company and its
affiliates. Executive shall not, without Company's prior written
consent, engage in other business activities during the Term; provided,
Executive may invest his assets in such form or manner as will not be adverse to
the interests or reputation of Company and will not require any services on his
part in the operation of the affairs of the enterprises in which the investments
are made. The Company realizes that the Executive has some continuing
obligations with regards to other business entities and associated
matters. The Executive acknowledges that these matters will not
create any conflict of interest with the Company, and will not interfere with
the execution of the Executive’s duties. The Company will allow the
Executive reasonable time to fulfill his obligations concerning these
matters.
4. Compensation. During
the Term, Executive's compensation for duties performed under this Agreement
shall consist of the following:
An Annual
Base Salary of Two Hundred Fifteen Thousand Five Hundred Dollars and no/100
($215,500.00) (“Annual Base Salary”), to be paid in accordance with the
customary payroll practices of Company at such times as the President/COO, CEO
or the Board of Directors, if so authorized, may determine, with any increases
as determined by the President/COO, CEO or the Board of Directors, if so
authorized in its sole and absolute discretion. Such adjustment shall
be made, as necessary, to cover the period from the effective date to the first
payroll in April 2009.
Annual
bonus compensation of up to 70% of Executive’s Annual Base Salary, as the Board
of Directors of Company or the CEO may determine in its sole and absolute
discretion.
Company
shall withhold from any such amounts payable to Executive any applicable social
security, federal, state or local taxes.
5. Employee
Benefits. During the Term, Executive shall be eligible for the
following benefits:
Executive
shall be entitled to participate in employee benefit plans, policies and
practices sponsored by Company for the benefit of its employees, upon the same
terms and conditions as other employees of Company, including vacation and
holiday time; provided nothing in this Agreement shall affect Company’s right to
amend, modify or otherwise terminate any such plans, policies and practices in
its sole and absolute discretion.
Upon
termination of Executive’s employment without “cause” (as defined below),
Company shall pay or reimburse Executive for the premiums associated with
continued medical coverage under Company’s medical plan should Executive elect
to continue such coverage pursuant to the terms of the Consolidated Omnibus
Budget Reconciliation Act of 1986, as amended.
Company
shall establish and maintain a stock option arrangement for its management group
which shall grant Executive options to purchase stock pursuant to the terms and
conditions of the arrangement.
6. Reimbursement of
Expenses. Company shall reimburse Executive for all reasonable
travel, entertainment, and similar expenses that Executive incurs in promoting
the business of Company and its affiliates, subject to policies and directives
from Company. The Company shall also reimburse Executive for all
associated expenses for professional education, certifications, and other
ongoing educational seminars, training, and courses taken. This will
include direct costs, travel, lodging, and other related
expenses. The Executive shall submit such courses for approval by the
President/COO or the CEO prior to incurring such expenses.
7. Facilities. Company
shall provide Executive with an office, books, stenographic and technical help,
and such other facilities, equipment, supplies and services as are suitable to
his position and adequate for the performance of his duties.
8. Confidentiality,
Nonsolicitation and Noncompetition.
Disclosure of
Information. Executive acknowledges and agrees that Company’s
operations, financial reports, customer information, strategic plan, salary and
employee information, and other confidential information pertaining to Company’s
operations and business affairs, as the same may exist from time-to-time,
including but not limited to any information not generally known in the industry
in which Company is or may be engaged, are valuable, special and unique assets
of Company’s business, and Executive shall not (without Company’s prior written
consent), either during Executive’s employment or thereafter, for any reason or
purpose whatsoever, disclose any such information to any person, firm,
corporation, association, or other entity. Company may protect this
interest by seeking and obtaining a court injunction.
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Return of
Materials. Executive agrees to deliver, within three (3) days
after he is no longer affiliated with Company, any and all property of Company,
including any Confidential Material (whether made, written or obtained by
Executive or others) that is in his possession, custody or
control. Executive agrees that he shall retain no copies of such
material. For purposes of this Agreement, “Confidential Material”
shall include, but not be limited to, any writing, computer data, photograph, or
other written material or tangible thing, obtained by Executive as a consequence
of or through his relationship with Company, and containing any confidential
information, including any information not generally known in the industry in
which Company is or may be engaged. This shall include, without
limiting the generality of the foregoing, customer lists, price or fee lists,
financial date, forms and manuals, procedures, instructions, records, computer
programs, notes, notebooks, and all other material of a trade secret,
proprietary, or confidential nature.
Nonsolicitation of
Employees, Etc. Executive hereby covenants and agrees that
during the term of Executive’s employment with Company and throughout the
Restricted Period, Executive will not, directly or indirectly, solicit, divert,
induce, encourage or attempt to solicit, divert, induce or encourage any person
who was any employee, agent, consultant, independent contractor, vendor,
supplier or service provider of Company or its affiliates at the time of his
termination of employment or within six (6) months prior to such termination of
employment, to leave or reduce his or her employment, relationship or other
arrangement with Company or any of its affiliates. Further, during
the Restricted Period, Executive shall not directly or indirectly, on behalf of
himself or another person or entity, hire, engage the services of, or attempt to
hire or engage the services of, any person or entity who was an employee, agent,
consultant, independent contractor, vendor, supplier or service provider of
Company or its affiliates at the time of Executive’s termination of employment
or within six (6) month prior to such termination.
Nonsolicitation of
Customers. Executive hereby covenants and agrees that during
the term of Executive’s employment with Company and throughout the Restricted
Period, Executive will not, directly or indirectly, solicit, divert, induce,
encourage or attempt to solicit, divert, induce or encourage any customer of
Company or its affiliates at the time of his termination of employment or within
six (6) months prior to such termination of employment, to terminate or reduce
the customer’s relationship with Company or any of its
affiliates. Further, during the Restricted Period, Executive shall
not directly or indirectly, on behalf of himself or another person or entity,
hire, provide products or services to any person or entity or engage the
services of, or attempt to hire or engage the services of, any person or entity
who was a customer of Company or its affiliates at the time of Executive’s
termination of employment or within six (6) month prior to such
termination.
Noncompetition. Executive
hereby covenants and agrees that during the Term of Executive’s employment with
Company and throughout the Restricted Period, Executive will not, either
directly or indirectly, in any capacity (including, but not limited to, in the
capacity as an employer, employee, sole proprietor, principal, partner, member,
officer, director, stockholder, consultant, agent, independent contractor or
service provider (other than a minority shareholder or other equity interest
holder of not more than 1% of a company whose equity interests are publicly
traded on a nationally recognized stock exchange or over-the-counter), on his
own behalf or in the service or on behalf of others, engage in, have any equity
or profit interest in, advise, manage, or render or perform services to any
business entity or individual engaged in business which is in competition with
Company or its affiliates or provides products similar to those provided by
Company or its affiliates within any country wherein Company or any of its
affiliates has customers, an office, an operation, sells or markets their
products or services.
Restricted
Period. For purposes of this Agreement, the “Restricted
Period” shall mean the period ending on the later of, (i) the expiration of
Executive’s Term of employment as set forth in this Agreement, or (ii) two (2)
years after Executive terminates employment with Company or any of
its affiliates. The running of the Restricted Period shall be tolled
for any period during which Executive is in violation of the restrictions set
forth herein.
Enforcement. Executive
acknowledges that the duties, obligations and restrictions imposed upon him in
this Agreement are special, unique and of an extraordinary character, and that
in the event of Executive’s breach or threatened breach of any portion of this
Agreement, the damage to Company and its affiliates would be irreparable or
could not be adequately measured in money damages. Executive
represents and further acknowledges that any breach or threatened breach of his
duties, obligations and restrictions under this Agreement will cause Company and
its affiliates immediate and irreparable injury, loss and damage before legal
notice can be had upon Executive, or his attorney, or before a judicial hearing
can be held. Therefore, Executive agrees that Company may protect its
interest by seeking and obtaining specific performance or a court injunction
(both temporary and permanent), in addition to any provable money damages, costs
and reasonable attorneys fees, along with any other remedies they may have at
law and equity, for any breach or threatened breach of the
Agreement. Executive also agrees that it is important for any
prospective person or business entity entering into an arrangement with
Executive which might be impacted by the restrictive covenants set forth herein
to be made aware of this Agreement. Accordingly, Executive further
agrees to provide a copy of this Agreement to any person or business entity with
whom he considers entering into any arrangement of any nature which would be
impacted by this Agreement. Should Executive fail to provide
this information, Executive further agrees that Company may forward a copy of
this Agreement to any person or business entity entering into an arrangement of
any nature with Executive which it believes would be impacted by this Agreement
and Executive releases Company and its affiliates from any and all claimed
liability or damage by virtue of such disclosure. The provisions of
this Paragraph 8 shall survive the termination of this Agreement for any reason,
including but not limited to, the expiration of the Term.
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9. Death or
Disability. If during the Term, Executive dies or becomes
unable to perform his duties hereunder because of “disability,” the Term shall
be deemed to have ended and all obligations of Company under this Agreement
shall cease immediately; provided Executive or his personal representative shall
be entitled to be paid for services rendered up to the time of “disability” or
death. Solely as used in this Paragraph, “disability” shall mean Executive's
inability (as determined under the long-term disability plan maintained by
Company, if applicable, or if not, by a physician mutually selected by the
parties) due to illness or physical or mental incapacity, to adequately and
fully perform the duties that Executive was performing for Company when the
disability began. If at any time during the Term, the insurance
carrier or administrator of Company’s long-term disability plan or, if
applicable, the physician mutually agreed upon by Company and Executive makes a
determination with respect to Executive's disability, that determination shall
be final, conclusive, and binding upon Company, Executive, and their successors
in interest.
10. Termination. Company
may terminate Executive for “cause,” which termination shall be
immediate. Upon such termination for “cause,” the Term shall be
deemed to have ended and all obligations of Company under this Agreement shall
cease immediately; provided, Executive shall be entitled to be paid for services
rendered up to the time of actual termination. Should Company
terminate Executive other than for “cause,” Executive shall continue to be paid
his Annual Base Salary (but no other amounts related to any employee benefit
plans and no further accrual of vacation, sick or holiday time) until the end of
that Term, even though he is no longer working for Company, which payment shall
be specifically conditioned upon and in exchange for any written releases deemed
appropriate by Company. After that Term shall have ended, all
obligations of Company under the Agreement shall cease. Should
Executive terminate employment with Company for any reason, that Term shall be
deemed to have ended immediately and all obligations of Company under this
Agreement shall cease; provided, Company shall be entitled to damages if at
least ninety (90) days prior written notice was not provided to Company by
Executive. For purposes of this Agreement, termination by Company of
Executive's employment for “cause” shall mean termination upon (a) the willful
and continued failure by Executive to perform his duties with Company; or (b)
the willful engaging by Executive in misconduct demonstrably injurious to
Company; (c) the willful engaging by Executive of fraud or dishonesty;
(d) breach of fiduciary duty involving personal profit; or (e) commission
of any federal or state felony or criminal offense (misdemeanor traffic offenses
classified as criminal offenses, notwithstanding). For purposes of
this definition, no act, or failure to act, on Executive's part shall be
considered “willful” unless done, or admitted to be done, by Executive not in
good faith and without reasonable belief that Executive's action or omission was
in the best interest of Company. Any amounts due the Executive in
connection with any unexpired term may be accelerated, without discount, at the
discretion of the Executive, upon a change in control of the
Company. A change in control shall, for purposes of this paragraph,
be defined as a change in ownership of 50% or more within a 12 month period as a
result of a single transaction or a series of transactions with one or more
related buyers or a consortium of buyers. In addition, a change in
control shall also include any sale, merger, consolidation or leveraged buyout
of the Company resulting in the Company no longer being public as a standalone
company. Executive shall be indemnified by the Company against any
excise taxes (in connection with parachute payments) or additional taxes, other
than ordinary income taxes, due to the acceleration of such
payments.
11. Resolution of Disputes and
Governing Law. Executive and Company agree that any dispute
arising hereunder or out of any further relationship shall, at the option of
Company, be resolved by the Fayette Circuit Court, Fayette County, Kentucky, or
by binding arbitration in accordance with the rules adopted by the American
Arbitration Association (except that such rules shall be modified so that any
arbitration award shall be made no later than ninety (90) days after
arbitrator(s) are appointed), with any such arbitration proceedings to take
place in Lexington, Kentucky. If Company should elect to resolve a
dispute in the Fayette Circuit Court, such court shall have exclusive
jurisdiction and Executive agree to and does hereby waive the right to a jury
trial. All parties agree that no party shall be entitled to, or
recover for, consequential, punitive, exemplary or extraordinary
damages. This Agreement has been negotiated and executed in the
Commonwealth of Kentucky and shall be construed and enforced in accordance with
the laws of that state.
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12. Parties
Affected. This Agreement shall inure to and shall be binding
upon the parties hereto, the successors and assigns of Company, and the heirs
and personal representatives of Executive.
13. Notices. All
notices required to be given under the terms of this Agreement shall be in
writing, shall be effective upon receipt, and shall be delivered to the
addressee in person or mailed by certified mail, return receipt requested, to
such person’s last known address as shown from Company’s records.
14. Assignment. The
services to be rendered by Executive under this Agreement are unique and
personal, and Executive may not assign any of his rights or delegate any of his
duties under this Agreement. Except as provided in the immediately
preceding sentence, this Agreement shall benefit Executive and his heirs
and personal representatives.
15. Severability and No
Violation. If any provision of this Agreement or its
application shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of all other applications of that
provision and of all other provisions and applications hereof shall not in any
way be affected or impaired and such invalid, illegal or unenforceable provision
or applications thereof shall be modified to the extent necessary such that it
and the Agreement shall then be enforced to the maximum extent allowed by
applicable law. Executive represents that in signing this Agreement he will not
violate any other agreement to which he is a party.
16. Non-Waiver. A
delay or failure by either party to exercise a right under this Agreement, or a
partial or single exercise of that right, shall not constitute a waiver of that
or any other right.
17. 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
Agreement.
18. Entire
Contract. This Agreement constitutes the entire understanding
and agreement between Company and Executive with regard to all matters herein
and supersedes any prior agreements and discussions between the
parties. There are no other agreements, conditions or
representations, oral or written, expressed or implied with regard
thereto. This Agreement may be amended only in writing, signed by
both parties; provided, Company may amend the Agreement as necessary to avoid
the Agreement being subject to Section 409A of the Internal Revenue Code of
1986, as amended (“Code”), and the regulations thereunder, or to comply with
Section 409A of the Code and the regulations thereunder if
necessary. Any further agreement of the parties on any matter,
including matters unrelated to this Agreement, shall be binding and enforceable
only if in writing, signed by both parties.
19. Headings. The
headings in this Agreement have been inserted solely for convenience of
reference and shall not be considered in the interpretation or construction of
this Agreement.
IN
WITNESS WHEREOF, the parties have executed and delivered this Employment
Agreement as of the date set forth in the preamble hereto.
| MEDPRO SAFETY PRODUCTS, INC. | |||
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx | |||
| CEO | |||
| Executive: | |||
| /s/ Xxxx X. Xxx | |||
| Xxxx X. Xxx | |||
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