Exhibit 10(iv)
Employment Agreement between Xetal, Inc.
and Xx. Xxx Xxxxx dated as of January 1, 1996;
AGREEMENT
This Agreement is made as of the 1st day of January 1996, between Xxx Xxxxx
("Employee") and Xetal, Inc. ("Employer" or "Xetal"), a New York corporation
with its principal office for the conduct of business at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx Xxx Xxxx 00000, who are hereinafter sometimes collectively referred
to as "the parties."
WITNESSETH
WHEREAS Employee has experience in the development and marketing of products
for the medical, dental and veterinary professions and has been an employee of
Xetal since its inception; and
WHEREAS Xetal desires to memorialize the terms and conditions of Employee's
employment by Xetal upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
l. Employment: Xetal employs Employee, and Employee accepts such employment
under the terms and conditions set forth herein. Employee shall be subject to
all the usual and customary office policies and procedures of Xetal as may from
time to time be established for employees of similar grade and position.
Specifically, Employee's grade and position with Xetal is Chief Executive
Officer and Secretary of Xetal and of its parent corporation.
2. Duties: Employee shall be responsible for sales, marketing and overall
supervision of Xetal's operations, including the performance of such duties
on behalf of Xetal's parent corporation. Employee shall also have primary
responsibility for new product development and for the establishment and
implementation of Xetal's overall marketing plan. In addition, Employee shall
be responsible for such other duties as are usual and typical for a Chief
Executive Officer of a company such as Xetal and for the faithful discharge
of such different or additional duties as may be reasonably established by
Xetal's Board of Directors.
3. Term: The term of this Agreement shall be for the three (3) year period
commencing January 1, 1996 and ending December 31, 1998 (the "Initial Term"),
unless sooner terminated pursuant to the provision of Section 6 below.
Unless notice of intention to terminate this Agreement at the end of the
Initial Term is given, in writing by Employee to Xetal, at least sixty (60)
days prior to the end of the Initial Term, or any extension period, and provided
that Employee has not breached in any material fashion any of the terms of
conditions of this Agreement, then this Agreement shall automatically be renewed
and extended for up to five (5) consecutive one (1) year periods upon the
terms and conditions set forth herein, unless different terms are agreed to
between the parties in writing.
4. Extent of Services: Employee shall devote all of his business time,
attention, skill and efforts to the performance of his duties hereunder, and
shall use his best efforts to promote the business of Xetal. During the term
of this Agreement, Employee shall not engage in any other business activities
which are either related to his work with Xetal or which would interfere with
his obligation to devote his full time efforts to his duties for Xetal,
whether or not for gain, profit or other pecuniary advantage without the
express written consent of Xetal; provided, however, that (i) Employee may
invest his assets in such manner as will not require any services to be
performed on his part in the operation or affairs of the companies in which
such investments are made, but only if such investments are consistent with
this Agreement, and (ii) Employee shall not serve as a principal, partner,
employee, officer or director of, or Consultant or contractor to any business
or entity conducting business for profit without the prior written consent of
Xetal. In consideration of the services to be rendered by Employee hereunder,
in addition to the other benefits to be received by Employee, Xetal shall
provide adequate working facilities for Employee which, subject to the
provisions of this Agreement, shall include adequate offices, for which Xetal
shall pay all rents due therefore, and Xetal shall provide all necessary
equipment and facilities to properly conduct the business of Xetal.
5. Compensation and Benefits:
I. Base Compensation. As compensation for his services hereunder, during the
term of the Agreement;
a) Xetal will pay Employee a gross salary in the sum of $125,000 per
annum, payable weekly, subject to deductions for withholding taxes and/or
other appropriate deductions as provided by all applicable federal, state and
local law, which salary shall includes 20 paid working days for vacation,
over and above all legal holidays recognized by Xetal as non-working days for
all of its employees and an additional 15 days for sick or personal leave;
plus,
b) A car lease allowance of $450. per month; plus,
c) Car expense allowance of up to $150. per month; plus,
d) Xetal will reimburse Employee for his direct expenses in the
performance of his duties hereunder including, but not limited to, reasonable
travel, entertainment and hotel expenses. However, Employee shall provide
such receipts and other documentation of his expenses as may reasonably be
requested by Xetal, in accordance with its established policy for all other
employees receiving reimbursement of expenses. Additionally, any single
expense item in excess of $750 shall be approved by Xetal prior to being
incurred, unless such pre-approval is unreasonable under the circumstances.
Xetal shall provide Employee with a corporate American Express credit card,
or similar credit card for the use of Employee on behalf of the Company; plus,
e) an Annual Cash Bonus to be computed and paid as follows:
1. An annual bonus based upon Xetal's Gross Revenues during each
fiscal year, over and above the agreed to base of $11 Million, as reported by
the Company's independent certified public accountants at the end of each such
annual period, generated during any year in which Employee is employed
hereunder, as hereafter defined. For purposes of this Agreement, Gross Revenues
shall be equal to all yearly gross sales revenues actually received and
collected during such period generated from any source by Xetal, including its
parent company, or any other subsidiary or affiliated company, provided that
such revenues are reported on a consolidated basis with those of Xetal;
2. At the end of each year of the term of this Agreement, Xetal
will pay to Employee an annual cash bonus equal to one (1%) per cent of Gross
Revenues determined as provided above;
3. Payment of the bonus earned each year, as determined above, shall
be made by a cash payment within 30 days following the delivery to Xetal of its
annual certified financial statements prepared by its independent certified
public accountants, but in no event latter than 120 days following the end of
each fiscal year; plus
f) Xetal will pay the total cost of the prevailing medical, dental or
other health insurance program offered to its employees, if any, for Employee
and his immediate family.
II. Future Salary Adjustment. The parties agree that at the end of each year
of this Agreement, including any renewal period, Employee's base salary shall
be increased by an amount determined by multiplying Employee's original base
salary hereunder of $125,000 by a fraction the numerator of which is the
Consumer Price Index for all cities ("CPI") as of January of each such year
minus the CPI as of January, 1996 and the denominator of which is the CPI as
of January, 1996.
6. Termination:
I. This Agreement shall be terminated upon the happening of any of the
following:
a) At the cessation of Xetal's business activities;
b) Upon the mutual consent of the parties hereto;
c) For cause at any time upon written notice to Employee.
Employee's termination shall be "with cause" if due to any of the following:
(I) Employee's dishonesty;
(ii) An act of defalcation committed by Employee; or
(iii) Employee's inability to perform his duties due to a
physical or mental impairment which causes Employee to be absent from the
workplace for a period of six (6) months during any year of this Agreement;
and for no other reason.
II. In the event that this Agreement and Employee's employment
hereunder shall be terminated by Xetal without cause, as defined in Paragraph
6(I)(c) above, Xetal shall continue to pay Employee the compensation provided
under the terms of this Agreement at the rate of salary and bonuses Employee
was receiving when his services were terminated by Xetal for a period equal to
the duration of the term of this Agreement, including all available renewal
period, had the Agreement not be terminated by Xetal. However, in no event shall
such payments shall continue for a period of less than six (6) months
irrespective of the actual remaining duration of this Agreement as stated
above.
III. It is understood and agreed that disability due to mental illness
or accident or any other physical or mental incapacity shall not constitute a
basis of termination for cause except to the extent and under the conditions
set forth in Paragraph 6(I)(c)(iii) above.
IV. In the event of Employee's death during the term of this Agreement,
this Agreement shall terminate and Employee's estate shall be entitled to
receive from Xetal an amount equal all payments which would have been due to
Employee under Paragraph 6(II) above, plus a lump sum payment of $25,000, which
may, at the election of Xetal, be funded by an appropriate life insurance
policy insuring the life of Employee, to be purchased by Xetal, at Xetal's sole
cost and expense, which payment shall be made to Employee's estate at such time
as the proceeds of such policy are received by Xetal. However, as a condition
of such payment to Employee's estate hereunder, the estate, through its legally
appointed representative, and by any other party necessary to carry out the
intent hereof, shall acknowledge in writing that neither the estate nor any
beneficiary of such estate has any legal right, title, interest or claim in
or to any of Employees books, records, files or other information relating to
his activities during his employment with Xetal, including lists of suppliers,
manufacturers or other business contacts as such may relate to the business
conducted by Employee during his employment hereunder, all of which shall
remain the sole and exclusive property of Xetal.
7. Covenant Not to Compete: Employee hereby covenants and agrees that,
except as provided in paragraph hereof, during the term of this Agreement and
for a period of six (6) months after termination of such Agreement hereunder:
a) Employee will not in any way, directly or indirectly, solicit,
divert, take away or accept, the business of any of the customers of Xetal for
product lines handled by Xetal which were served by Employee for Xetal during
the term of this Agreement for the purpose of selling to or servicing for any
such customer any product or service which was provided or offered by Xetal
during the term of this Agreement hereof; and
b) Employee will not, directly or indirectly, attempt or seek to cause
any of the foregoing customers of Xetal to refrain from maintaining or
acquiring from or through Xetal any product or service which was provided or
offered by Xetal during the term hereof, and will not assist any other person
or persons to do so. Employee agrees that telephonic or written communication
by him to any of the customers described above shall constitute activity by
Employee for the purposes of this Agreement.
c) Employee will not in any way, directly or indirectly, solicit,
divert, take away or accept, the business of any of the suppliers (including
manufacturers) which were handled by Xetal or which were served by Employee for
Xetal during the term of this Agreement.
d) Employee will not, directly or indirectly, attempt to seek to cause
any of the foregoing suppliers (including manufacturers) of Xetal to refrain
from selling to or supplying Xetal with any product or service which was
provided or offered to Xetal during the term hereof, and will not assist any
other person or persons to do so. Employee agrees that telephonic or written
communication by him to any of the suppliers described above shall constitute
activity by Employee for the purposes of this Agreement.
8. Nondisclosure: Employee acknowledges that, in order for Employee to
perform effectively his duties hereunder, Xetal will disclose to Employee
certain valuable trade secrets and confidential business information that have
been created, discovered, or developed by, or that otherwise have become known
to Xetal as a result of substantial effort, expense and time incurred by Xetal
or which have been assigned or otherwise conveyed. In light of such
acknowledgment, Employee hereby agrees as follows:
a) Trade Secrets: Employee hereby acknowledges that certain processes,
formulas and mechanisms used by Xetal in the operation of its business, are not
generally known to the public or to other persons engaged in businesses
similar to its business and, as such, constitute its trade secrets. Employee
hereby agrees never to directly or indirectly disclose or use, or assist anyone
else in disclosing or using such trade secrets to any person or entity other
than as authorized in the regular course of the performance of this Agreement.
b) Confidential Information: Employee hereby agrees that during the
term of this Agreement and for a period of one year following termination of
such employment, Employee will not divulge, disclose or make accessible to any
person or entity the following confidential business information of Xetal:
(I) marketing plans, strategies and forecasts; (ii) financial statements,
budgets, prices, costs and financial projections; (iii) customer names,
addresses and contact persons; and (iv) Xetal's suppliers and manufacturers and
the details of their business agreements.
9. Property of Xetal: Employee agrees that upon termination of this Agreement,
he will promptly deliver to Xetal all written and other materials in his
possession or control which contain any of the trade secrets and confidential
business information described in paragraph 8 hereof and all other property of
Xetal in his possession or control at such time, which was obtained from Xetal
or complied or produced for Xetal during the terms of this Agreement, including,
but not limited to, manuals, records, data, plans, programs, program listings,
flow charts, record layouts, computer parts, computer printouts, magnetic tapes,
diskettes, disks, card decks, letters and customer lists with the exception of
personal diaries.
10. Non-solicitation of Employees: During the term of this Agreement and for
one year thereafter, Employee shall not hire or solicit for employment,
directly or through or on behalf of any other party, any persons who are then
employees of Xetal.
11. Relations with Third Parties and Representations of The Parties;
a) Employee agrees that Xetal may make known to others, either during
or subsequent to the term of this Agreement, the existence of this Agreement
and the provisions of all or any part hereof.
b) Employee represents and warrants that:
(1) He is not in violation of any term of any employment contract,
patent or other proprietary information disclosure agreement or any other
contract, agreement or any judgment, decree or order of any court or
administrative agency relating to or affecting his right to be employed by
Xetal because of the nature of this business conducted or proposed to be
conducted by Xetal or for any other reasons;
(2) No such term, judgment, decree or order conflicts with his
obligation to use his best efforts to promote the interests of Xetal, nor does
the execution and delivery of this Agreement, nor the carrying on of Xetal's
business conflict with any such term, judgment, decree or order; and
(3) Neither he nor any of his affiliates (as that term is defined
under the Securities Act of 1933) are a party to any transaction, agreement or
understanding to which Xetal is also a party except this Agreement or any
agreement executed hereunder, nor does he or any of his affiliates have any
interest in any person or entity with whom Xetal does or intends to do business.
c) Xetal hereby makes the following representations in connection with
this Agreement;
(1) Xetal is a corporation duly organized and validly existing by
virtue of the laws of the state of New York, and is in good standing under the
laws thereof.
(2) The execution of this Agreement by Xetal, and the performance by
it of the covenants and undertakings hereunder have been duly authorized by all
requisite corporate action, and approved by the Board of Directors and Xetal
has the corporate power and authority to enter into this Agreement and
perform the covenants and undertakings to be performed by it hereunder,
and is under no other impediment which would adversely affect its ability to
consummate or prohibit it from meeting its obligation hereunder.
(3) This Agreement has been duly authorized, executed and delivered
by Xetal and constitutes a valid and legally binding obligation of Xetal
enforceable in accordance with its terms.
12. Remedies; Survival; Severability:
a) Xetal and Employee agree that in the event of a breach of any of the
covenants, agreements or obligations under Sections 6, 7, 8, 9, 10 and 11
hereof, remedies at law would be inadequate, and either party may seek
injunctive relief as well as damages.
b) The covenants, agreements, representations, warranties and obligations
contained in Sections 6, 7, 8, 9, 10 and 11 hereof shall survive the termination
of this Agreement for the periods herein set forth.
c) Each of the covenants, agreements and obligations contained in
Sections 6, 7, 8, 9, 10 and 11 hereof shall be independent and severable from
the others and should any be for any reason held illegal, invalid or
unenforceable in whole or in part, said illegality, invalidity or
unenforceability shall not affect the other covenants, agreements and
obligations in said Sections.
d) In the enforcement of their rights hereunder, Xetal and Employee
shall retain all of their rights under law or in equity to enforce the
obligations of the other party hereunder or otherwise, and to seek relief for
the acts of the other party subject to the terms of this Agreement.
13. Miscellaneous:
a) This Agreement embodies the entire agreement of the parties hereto
relating to the subject matter hereof. No amendment, modification, waiver or
attempted waiver of this Agreement or any part hereof shall be valid or
binding unless made in writing and signed by the party to be bound.
b) The validity and effect of this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
c) Any notice required or permitted to be given pursuant to this
Agreement shall be sufficiently given when delivered or, if sent by Certified
Mail, postage prepaid, return receipt requested, on the third day after such
mailing, to the following address or to such other address as a party shall
designate to writing to the other:
(I) to Employee: Xxx Xxxxx
____________________
____________________
(ii) to Xetal: Xetal, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
d) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
e) The headings of the sections and subsections hereof have been
inserted as a matter of convenience and shall not be used in the interpretation
of any provisions of this Agreement.
f) The failure of either party hereto in any one or more instances to
insist upon the performance of any of the terms or conditions of this
Agreement, or to exercise any rights or privileges conferred in this
Agreement, or the waiver by either party of any breach of any of the terms,
covenants or conditions of this Agreement, shall not be construed as
thereafter waiving any such terms, conditions, rights, privileges or covenants,
and the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
their seals as of the date and year first written above.
XETAL, INC.
By__/s/Xxxxx Steil_______________
Xxxxx Xxxxx, President
__/s/Jan Stahl__________________
XXX XXXXX, Employee
