EXHIBIT A
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of June 26,
1997, is between MedCare Technologies, Inc., a Delaware corporation (the
"Company"), and Xxxx Xxxxxx ("Executive").
RECITALS
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A. The Company desires to employ Executive as its President and
Chief Operating Officer, on the terms set forth in this Agreement.
B. Executive desires to be so employed by Company.
AGREEMENTS
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In consideration of the foregoing recitals and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. Employment.
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1.1 TERM. Subject to the terms hereof, the Company agrees to
employ Executive as its President and Chief Operating Officer, and
Executive agrees to accept such employment, for the period beginning on the
date hereof and ending on June 30, 2000, subject to earlier termination
pursuant to Section 3 hereof (the "Term"); provided, however, that, after
the expiration of the initial term, the Term shall be automatically
extended or re-extended on June 30th in each year, commencing on June 30,
2000, for successive one-year periods, subject to earlier termination
pursuant to Section 3 hereof, unless the Company or Executive delivers to
the other party a notice specifying such party's intent not to extend or
re-extend the Term for an additional one-year period, at least 30 days
prior to such June 30th.
1.2 DUTIES. During the Term, Executive shall perform such
duties and functions as are customarily performed by the chief operating
officer of a company the size and nature of the Company, including the
duties and functions consistent with the positions of President and Chief
Operating Officer as are from time to time assigned to him by the Chief
Executive Officer of Company or Board of Directors of Company (the
"Board").
1.3 PLACE OF PERFORMANCE. Executive shall perform his services
hereunder at the headquarters of the Company, except for required travel on
the Company's business.
1.4 VACATIONS. Executive shall be entitled to such paid
vacation time as the Company customarily provides from time to time to its
executives (but in no event less than three weeks per year), to be taken in
accordance with its then-current employment policy regarding such
vacation time. Executive shall also be entitled to all paid holidays given
by the Company to its employees.
2. Compensation.
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2.1 BASE SALARY. As compensation for services rendered
hereunder, Executive shall receive an annual salary of not less than
$100,000, to be paid in accordance with the Company's customary payroll
practices but in no event less frequently than monthly. Such salary shall
be reviewed by the Board no less frequently than semi-annually, beginning
as of January 1, 1998, with a view to making such increases as the Board,
in its discretion, deems appropriate. Any increase in salary granted by
the Board shall in no way limit or reduce any other obligation of the
Company hereunder.
2.2 ANNUAL BONUSES. In addition to the salary payable pursuant
to Section 2.1, Executive shall be eligible for an annual bonus for each
fiscal year of the Company ("Fiscal Year") during the Term. The annual
bonus shall be based on such performance standards as the Board or
compensation committee may establish.
2.3 WELFARE AND PENSION PAYMENTS. The Company shall pay 100% of
the premiums for medical, life and dental insurance for Executive and
Executive's dependents. In addition, Executive shall be eligible to
participate in the various benefit plans maintained by the Company for its
employees in accordance with the terms of such plans as from time to time
in effect and applicable to employees of the Company.
2.4 OTHER BENEFITS. Executive will receive payment for all
business related organizational or association memberships, in accordance
with the Company's then current practices.
2.5 AUTO ALLOWANCE. Executive shall be entitled to a $500 per
month auto allowance to cover automobile maintenance and insurance.
Executive shall be responsible for any taxes relating to such auto
allowance.
2.6 DISABILITY INSURANCE. The Company will maintain, and pay
the premiums of, a long-term disability insurance policy on Executive that
provides that if Executive becomes disabled for a period in excess of six
months, the insurer will pay Executive during the period that Executive is
disabled an annual amount equal to at least $75,000. The amount of such
policy shall be reviewed by the Board no less frequently than bi-annually,
beginning July 1, 1999, with a view to making such increases in the amount
of such policy as the Board, in its discretion, deems appropriate. The
Company agrees that the policy will permit the Company to assign the policy
to Executive upon the termination for any reason of Executive's employment
with the Company or permit Executive to continue such policy on
substantially the same terms after the termination of Executive's
employment. The Company will take all actions necessary to assign such
policy to Executive upon the termination of Executive's employment with the
Company.
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2.7 EXPENSES. The Company shall reimburse Executive promptly
for all ordinary and necessary travel and other business expenses incurred
by him in connection with his duties hereunder (including reimbursement for
business use of home phone, home fax and cellular phone), provided that
Executive properly accounts therefor in accordance with the policies of the
Company.
3. Termination.
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3.1 END OF TERM OR EARLIER DEATH. Unless Executive's employment
has terminated sooner pursuant to Section 3, such employment shall
terminate at the end of the Term or, if Executive dies prior thereto, on
the date of Executive's death.
3.2 TERMINATION BY THE COMPANY FOR CAUSE. The Company may
terminate Executive's employment hereunder for Cause. For purposes of this
Agreement, "Cause" shall mean (i) Executive's conviction of, guilty plea
concerning or confession of fraud, theft, embezzlement or similar
malfeasance or any felony, (ii) Executive's commission of embezzlement of
Company funds (provided that the Company has substantial proof of such
embezzlement) or (iii) a material breach of Executive's obligations under
this Agreement. In order to terminate Executive's employment hereunder for
Cause, the Company must notify Executive of such decision in writing,
specifying the Cause and the Date of Termination (as hereinafter defined).
With respect to item (iii), Executive shall have ten days after the receipt
of such notice to eliminate the basis for such Cause to the reasonable
satisfaction of the Board.
3.3 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may
terminate Executive's employment hereunder at any time without Cause upon
notice to Executive specifying the Date of Termination.
3.4 TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive shall
be entitled to terminate his employment hereunder for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean the occurrence of any
of the following circumstances without the prior written consent of
Executive:
(a) the requirement that Executive report to any officer,
consultant or committee, other than the Chief Executive Officer or a
formal committee of the Board, it being the intent of the parties that
Executive shall never be required to report to anyone other than the
Chief Executive Officer, the Board or a formal committee thereof;
(b) the removal of any titles of Executive specified in Section
1.1;
(c) a redelegation of any material duties of Executive to other
officers, employees, consultants or committees;
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(d) the failure of the Company to maintain and to continue
Executive's participation in its benefit plans as in effect from time
to time on a basis substantially equivalent to the participation of
employees similarly situated to Executive;
(e) a material breach of the Company's obligations under this
Agreement or the Option Agreement (as such terms are hereinafter
defined);
(f) the removal of, or failure to elect or re-elect, Executive
as a director of the Company; or
(g) a Change of Control (as hereinafter defined);
For purposes of this Agreement, a "Change of Control" shall be deemed to
have occurred if at any time after the date hereof:
(A) the Company sells or otherwise disposes of all or
substantially all of its assets, other than to Executive;
(B) the Company participates in a merger or consolidation and,
immediately following the consummation of such merger or
consolidation, the Company's stockholders prior to such merger or
consolidation do not own 50% or more of the voting shares of stock of
the surviving or successor corporation, unless more than 50% of the
voting shares of stock of the surviving or successor corporation are
owned by Executive; or
(C) any person or entity, including a "person" as such term is
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, but excluding current officers or directors of the Company
and Executive, becomes the beneficial owner of 50% or more of the
combined voting power of the Company's voting securities.
In order to terminate his employment hereunder for Good Reason,
Executive shall give the Company written notice thereof, specifying such
Good Reason and the Date of Termination, which shall be not less than ten
days from the date of such notice, provided that Company may eliminate the
basis of such Good Reason during the period prior to the specified Date of
Termination.
3.5 TERMINATION FOR DISABILITY. The Company may terminate
Executive's employment for Disability. For purposes of this Agreement,
"Disability" shall mean Executive's inability, due to physical or mental
illness or accident or injury, to perform his duties hereunder on a full-
time basis for 90 or more business days within five consecutive months and
Executive shall not (a) within ten days after a written notice of intention
to terminate is received by Executive, have returned to the full-time
performance of his duties and (b) have continued during the following two
months to perform his duties full-time without absences due to physical or
mental disability aggregating more than ten business days. If the Company
elects to terminate
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Executive's employment for Disability, it shall give written notice thereof
to Executive specifying the Date of Termination.
3.6 NOTICE AND DATE OF TERMINATION. Any termination by the
Company or Executive shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 7.4. As used herein,
the term "Date of Termination" shall mean the date specified in the Notice
of Termination (which shall be not less than 30 days from the date such
Notice of Termination is given unless otherwise expressly provided herein).
4. Payments Upon or After Termination.
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4.1 ACCRUED COMPENSATION. Upon termination of Executive's
employment with the Company for any reason, Executive shall be entitled to
receive the compensation accrued and unpaid as of the Date of Termination,
including salary through the Date of Termination. The Company shall
continue to provide Executive with all profit sharing, pension, life,
disability, accident, health insurance, and other employee benefit and
fringe benefit plans and programs through the Date of Termination in
accordance with the terms and provisions of such plans and programs in
effect at the time of that Notice of Termination is given.
4.2 PAYMENT IN CASE OF DEATH. In addition to the Company's
obligations under Section 4.1, if at the time of Executive's death,
Executive maintained health insurance for members of his immediate family,
the Company shall pay the premiums to maintain such health insurance in
full force and effect for a period of at least one year from the date of
Executive's death (which shall not count toward or reduce the minimum
length of time that the Company is obligated to provide health insurance to
Executive's immediate family under Section 4980(B) of the Internal Revenue
Code of 1986, as amended (the "Code")).
4.3 TERMINATION FOR CAUSE. Other than the Company's obligations
under Section 4.1, if Executive's employment with the Company is terminated
by the Company for Cause, the Company shall have no further obligations to
Executive under this Agreement.
4.4 TERMINATION BY COMPANY WITHOUT CAUSE, TERMINATION AT
DISABILITY OR TERMINATION BY EXECUTIVE FOR GOOD REASON. In addition to the
Company's obligations under Section 4.1, if (a) Executive's employment is
terminated by the Company and such termination does not comply with Section
3.2, (b) Executive's employment is terminated pursuant to Section 3.5 or
(c) Executive's employment is terminated by Executive for Good Reason in
accordance with the provisions of Section 3.4, the Company shall pay
Executive, within 30 days of the Date of Termination, an amount equal to
three months' salary at his then current annual salary. In addition, the
Company shall pay, or reimburse Executive for, (i) the premiums to maintain
health insurance for Executive and members of his immediate family in full
force and effect for a period of at least three months after the Date of
Termination (which shall not count toward or reduce the minimum length of
time that the Company is obligated to provide health insurance to Executive
and Executive's immediate family under Section 4980(B) of the Code), and
(ii) the premiums to
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maintain the disability insurance policy maintained in accordance with
Section 2.6 in full force and effect for a period of at least one year
after the Date of Termination.
4.5 OTHER TERMINATION BY EXECUTIVE. If Executive shall
terminate his employment hereunder for any reason other than Good Reason,
other than the Company's obligations under Section 4.1, the Company shall
have no further obligations to Executive under this Agreement.
4.6 DISCLAIMER OF MITIGATION DUTY. Executive shall not be
required to mitigate the amount of any payment provided for or referred to
in this Section 4 by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for or referred to in this
Section 4 be reduced by any compensation earned by Executive as a result of
employment by another employer, by retirement benefits, by offset against
any amount claimed to be owed by Executive to Company or otherwise.
4.7 OTHER BENEFITS. In addition to all other amounts payable to
Executive under this Section 4, Executive shall be entitled to receive all
benefits payable to Executive under any plans or agreements relating to
retirement or other benefits in accordance with the terms and provisions
thereof.
5. Stock Options.
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5.1 STOCK OPTIONS. On the date hereof, the Company shall
execute and deliver to Executive an Option Agreement in the form attached
hereto as EXHIBIT A (the "Option Agreement").
5.2 SALE OF COMPANY SHARES. The Executive agrees that, without
the written consent of the Company, which will not be unreasonably
withheld, so long as Executive is employed by the Company, Executive will
not sell more than 1.5% of the outstanding shares (on a fully diluted
basis) of Common Stock of the Company during any fiscal quarter of the
Company; provided that if Executive does not sell at least 1.5% during any
such fiscal quarter, then, in addition to any shares that Executive may
otherwise sell pursuant to the foregoing, Executive may sell additional
shares in subsequent fiscal quarters to the extent of such shortfall.
6. Board of Directors. (a) The Company agrees that at all times
during the Term the Company shall slate Executive for election as a member
of the Board.
(b) In the event that at any time, or from time to time, during
the Term the Board establishes an executive or similar committee of the
Board, the Company agrees that such committee will not have more than three
members and Executive will be a member of such committee.
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(c) In the event that at any time, or from time to time, during
the Term the Board establishes a nominating or similar committee of the
Board, the Company agrees that Executive will be a member of such
committee.
7. Miscellaneous.
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7.1 SUCCESSORS AND ASSIGNS: BINDING AGREEMENT. (a) The Company
will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform this Agreement if no such succession
had taken place.
(b) This Agreement and all rights of Executive hereunder shall
inure to the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive shall die while any
amounts remain unpaid hereunder, including any amounts which would be
payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Executive's spouse or if Executive does not have
a living spouse at such time, to Executive's estate.
(c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns; provided, however, that the duties
of Executive hereunder are personal to Executive and may not be delegated
by him.
7.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
7.3 WAIVERS. The waiver by either party hereto of any right
hereunder or of any failure to perform or breach by the other party hereto
shall not be deemed a waiver of any other right hereunder or of any other
failure or breach by the other party hereto, whether of the same or a
similar nature or otherwise. No waiver shall be deemed to have occurred
unless set forth in a writing executed by or on behalf of the waiving
party. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to
the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
7.4 NOTICES. All notices and communications that are required
or permitted to be given hereunder shall be in writing and shall be deemed
to have been duly given when delivered personally, upon mailing by
registered or certified mail, postage prepaid, return receipt requested, or
upon delivery to a reputable overnight courier as follows:
If to the Company, to:
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MedCare Technologies, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
If to Executive, to:
Xx. Xxxx Xxxxxx
0000 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
or to such other address as may be specified in a notice given by one party
to the other party hereunder.
7.5 SEVERABILITY. If for any reason any term or provision of
this Agreement is held to be invalid or unenforceable, all other valid
terms and provisions hereof shall remain in full force and effect, and all
of the terms and provisions of this Agreement shall be deemed to be
severable in nature.
7.6 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute but one and the same instrument.
7.7 LEGAL FEES AND EXPENSES. It is the intent of the Company
that Executive shall not be required to incur any expenses associated with
the enforcement of his rights under this Agreement by litigation, or other
legal action because the cost and expense thereof would substantially
detract from the benefits intended to be extended to Executive hereunder.
Accordingly, if the Company has failed to comply with any of its
obligations under this Agreement, or in the event that the Company or any
other person takes any action to declare this Agreement void or
unenforceable, in whole or in part, or institutes any litigation designed
to deny, or to recover from, Executive any benefits intended to be provided
to Executive hereunder, the Company irrevocably authorizes Executive from
time to time to retain counsel of his choice, at the expense of the Company
as hereinafter provided, to represent Executive in connection with the
initiation or defense of any litigation, arbitration or other legal action,
whether by or against the Company or any director, officer, stockholder or
other person affiliated with the Company, in any jurisdiction. The Company
shall advance to Executive within 30 days after each written request
therefor any and all attorneys' and related fees and expenses actually
incurred by Executive in any such proceeding or otherwise as a result of
the Company's failure to perform this Agreement or any provision hereof or
as a result of the Company or any other person contesting the validity or
reasonableness of this Agreement. Without limiting the generality of the
foregoing, if any amount is not paid by the Company hereunder when due,
including, but not
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limited to, any amount of salary, bonus, fees or expenses, the amount
thereof shall bear interest from the due date thereof until paid in full at
10% per annum. Executive agrees that he will reimburse the Company for all
attorneys' and related fees and expenses received by Executive from the
Company under the provisions of this Section 7.7 in the event and only to
the extent that it shall be ultimately determined that the Company has not
failed to comply with any of its obligations under this Agreement, and each
amount to be reimbursed hereunder shall bear interest from the date of
receipt by Executive thereof until paid to the Company in full at 10% per
annum.
7.8 INDEMNIFICATION. The Company shall indemnify and hold
harmless Executive from any claim asserted against him as an employee,
officer or director of the Company or any of its subsidiaries, or as
director, officer or partner of any other enterprise if Executive serves or
served in such capacity at the request of the Company, to the fullest
extent permitted by applicable state laws. Expenses incurred by Executive
in connection with any such claim shall be paid by the Company in advance
upon the written request of Executive. Executive shall reimburse the
Company for such expenses in the event and only to the extent that it shall
be ultimately determined that Executive is not entitled under applicable
state law to be indemnified for such expenses.
7.9 AMENDMENT: SURVIVAL. This Agreement may be amended or
canceled by mutual agreement of the parties in writing without the consent
of any other person and, so long as Executive lives, no person, other than
the parties hereto, shall have any rights under or interest in this
Agreement or the subject matter hereof. The provisions of Sections 4 and
7 survive the termination or expiration of this Agreement.
7.10 ENTIRE AGREEMENT. This Agreement, together with the Option
Agreement, constitutes the entire agreement between the parties, and
supersedes all prior oral or written understandings between the parties,
relating to Executive's employment.
7.11 MANAGEMENT POOL. The Company agrees that as soon as
possible (but in any event within sixty days of the date hereof) it shall
take all actions necessary to increase the number of shares available for
the grant of stock options under the incentive stock option plan approved
by the Company in June 1997 so that at least an additional 250,000 shares
of Common Stock of the Company are available under such plan for grant
after June 1997.
7.12 NO ATTACHMENT. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary,
to effect any such action shall be null, void and of no effect.
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The parties hereto have executed this Agreement on the date and year
first above written.
MEDCARE TECHNOLOGIES, INC.
By:________________________________________
Title:________________________________
___________________________________________
Xxxx Xxxxxx
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EXHIBIT A TO
EMPLOYMENT AGREEMENT
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OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement") dated as of June 26, 1997, is
between MedCare Technologies, Inc., a Delaware corporation (the
"Corporation") and Xxxx Xxxxxx (the "Holder").
RECITALS
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A. The Corporation has offered to employ the Holder as its President
and Chief Operating Officer.
B. The Holder desires to accept such employment provided the
Corporation grants the Holder an equity incentive with respect to the
Corporation.
C. The Corporation believes that it is in the Corporation's best
interest to provide an equity incentive in the form of an option to
purchase shares of Common Stock of the Corporation to the Holder in order
to induce the Holder to accept employment with the Corporation.
D. The Corporation desires to grant certain options to purchase
shares of Common Stock to the Holder, upon the terms and subject to the
conditions contained herein.
AGREEMENTS
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In consideration of the foregoing recitals and the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement as used in this Agreement.
"Business Day" means a day on which banks are generally open for
business in New York.
"Cause" has the meaning ascribed to such term in the Employment
Agreement provided, however, that if the Employment Agreement is terminated
at any time, then after such time "Cause" shall have the meaning ascribed
to it in the Employment Agreement immediately prior to such termination.
"Closing Price" of any security means, as of any date, the
average of the closing prices of such security's sales on such date on all
securities exchanges on which such security may at the time be listed, or
if there has been no sale on any such exchange on such date, the average
of the highest bid and lowest asked prices on all such exchanges at the end
of such date, or, if on such date such security is not so listed, the
average of the representative bid and asked prices quoted in the NASDAQ
System as of 4:00 p.m., New York time on such date, or, if on such date
such security is not quoted in the NASDAQ System, the average of the
highest bid and lowest asked prices on such date in the domestic over-
the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization.
"Common Stock" means the Common Stock of the Corporation, par
value $0.01 per share.
"Disability" has the meaning ascribed to such term in the
Employment Agreement; provide, however, that if the Employment Agreement is
terminated at any time, then after such time "Disability" shall have the
meaning ascribed to it in the Employment Agreement immediately prior to
such termination.
"Employment Agreement" means that certain Employment Agreement,
dated as of June 26, 1997, between the Corporation and the Holder.
"Exercise Price" means $6.50 per share of Common stock, subject
to adjustment pursuant to Section 2.5 hereof.
"Good Reason" has the meaning ascribed to such term in the
Employment Agreement; provided, however, that if the Employment Agreement
is terminated at any time, then after such time "Good Reason" shall have
the meaning ascribed to it in the Employment Agreement immediately prior to
such termination.
"Option" means the option to purchase 500,000 shares of Common
Stock, subject to adjustment pursuant to Section 2.5 hereof, at the price
per share of Common Stock equal to the Exercise Price in effect at the time
of any exercise of such option subject in all respects to the terms and
conditions of this Agreement, the grant to the Holder of which is made by
this Agreement.
"Option Shares" means shares of Common Stock which have been or
may be purchased by the Holder pursuant to the exercise of the Option,
whether or not the Option is then exercisable for such shares.
"Option Termination Time" means 5:00 p.m. (Eastern time) on July
1, 2005.
"Permitted Transferee" means a Person who is either (i) the
personal representative of the Holder upon such Holder's death for purposes
of administration of the Holder's estate or (ii) a Person receiving a
transfer of the Holder's assets upon the Holder's death by will or pursuant
to the laws of descent and distribution. Upon the transfer of the Option,
a Permitted Transferee shall be deemed to be the Holder for purposes of
this Agreement.
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"Person" means a natural person, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization or other entity or a
governmental entity or any department, agency or political subdivision
thereof.
2. TERMS OF OPTION.
2.1 GRANT OF THE OPTION. Upon the terms and conditions set
forth herein, the Corporation hereby grants to the Holder the Option.
2.2 PROCEDURES FOR EXERCISE. Subject in all respects to the
Option becoming exercisable pursuant to Section 2.3 of this Agreement, the
Holder or a Permitted Transferee may exercise the Option in whole or in
part at any time or from time to time prior to the Option Termination Time
(or earlier termination pursuant to Section 2.5 of this Agreement) by
delivering written notice to the Corporation substantially in the form
attached hereto as EXHIBIT A, together with payment in a manner set forth
below of the aggregate Exercise Price for the Option Shares with respect to
which the Holder or a Permitted Transferee is exercising the Option. The
aggregate Exercise Price for the Option Shares with respect to which the
Holder or a Permitted Transferee is exercising the Option may be paid:
(a) by cash or a check payable to the order of the Corporation.
(b) in the manner provided in (a), (c) or (d) with respect to
$.01 per share and by delivery to the Corporation of a promissory note of
the Holder or Permitted Transferee in a principal amount equal to the
balance of such aggregate Exercise Price with respect to such balance,
which note will bear interest at the applicable Federal Rate determined
from time to time by the Internal Revenue Service under Section 1274 of the
Internal Revenue Code of 1986, as amended, and the principal amount of, and
accrued interest on, such note shall be due on the third anniversary of the
date of exercise.
(c) by cancellation of shares of Common Stock, owned by the
Holder or Permitted Transferee at the time of such exercise having a fair
market value (determined based on the Closing Price of the Common Stock on
the date or exercise) equal to the aggregate Exercise Price for such Option
Shares, or
(d) by cancellation of the exercisable portion of the Option, or
a portion thereof, having a fair market value (determined based on the
difference between the Closing Price of the Common Stock on the date of
exercise and the Exercise Price) equal to the aggregate Exercise Price for
such Option Shares.
As promptly as practicable after receiving the written notice and the
payment of the aggregate Exercise Price, the Corporation will deliver to
the Holder or Permitted Transferee
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as the case may be, certificates for the Option Shares with respect to
which such Holder or Permitted Transferee has exercised the Option, issued
in the name of the Holder or Permitted Transferee, as the case may be. For
all purposes, the Holder or Permitted Transferee, as the case may be, will
be deemed to have exercised the Option and to have purchased and become the
holder of the Option Shares as of the date the Corporation receives written
notice and payment of the aggregate Exercise Price from the Holder or
Permitted Transferee, as the case may be, as provided in this Section 2.2.
2.3 VESTING OF THE OPTION.
(a) EMPLOYMENT-BASED VESTING. With respect to 400,000 Option
Shares, the Option shall vest and become exercisable for 100,000 Option
Shares on each of August 1, 1997, August 1, 1998, August 1, 1999 and August
1, 2000.
(b) GROSS REVENUES VESTING. With respect to 100,000 Option
Shares, the Option shall vest and become exercisable if the Corporation
achieves $10,000,000 in aggregate gross revenues from sales of products and
services prior to December 31, 1998.
(c) CHANGE OF CONTROL VESTING. Notwithstanding the vesting
provision of Sections 2.3(a) and (b) above, all of the
Option Shares shall vest and become exercisable upon a "Change of Control."
For purposes of this Agreement, a "Change of Control" shall be deemed to
have occurred if at any time after the date hereof:
(i) the Corporation sells or otherwise disposes of all or
substantially all of its assets:
(ii) the Corporation participates in a merge or consolidation
and, immediately following the consummation of such merger or
consolidation, the Corporation's stockholders prior to such merger or
consolidation do not own 50% or more of the voting shares of stock of
the surviving or successor corporation; or
(iii) any person or entity, including a "person" as such term
is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, but excluding current officers or directors of the
Corporation, becomes the beneficial owner of 30% or more of the
combined voting power of the Corporation's voting securities.
(d) EXERCISE AFTER VESTING. After the Option have become
exercisable for any number of Option Shares, the Option may be exercised
for up to the aggregate number of Option Shares for which the Option have
become exercisable at any time or from time to time thereafter in
accordance with the provisions of Section 2.1 (but prior to the termination
of the Option in accordance with this Agreement).
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2.4 FRACTIONAL SHARES. Fractional shares will not be issued
upon the exercise of the Option, but in any case where the Holder would,
except for the provisions of this Section 2.4, be entitled under the terms
of this Agreement to receive a fractional share upon the complete exercise
of the Option, the Corporation will, upon the exercise of the Option for
the largest number of whole shares then called for, pay a sum in cash equal
to the excess of the value of such fractional share (determined based on
the Closing Price of the Common Stock as of the date of exercise) over the
proportional part of the applicable Exercise Price represented by such
fractional share.
2.5 ANTIDILUTION PROVISION. In the event of any stock dividend,
stock split, combination, or exchange of shares of Common Stock or any
recapitalization or change in capitalization affecting shares of Common
Stock, the number and kind of shares that are subject to the Option, the
thresholds for exercisability set forth herein and the applicable Exercise
Price shall be proportionately and appropriately adjusted.
2.6 TERMINATION OF OPTION.
(a) In the event that (1) the Corporation terminates the
Holder's employment for Cause or (2) the Holder voluntarily terminates his
employment with the Corporation other than for Good Reason, at any time
while the Option is outstanding and unexercised, in whole or in part:
(i) the portion of the Option that is not exercisable shall
terminate as of such termination of employment; and
(ii) the portion of the Option that is exercisable shall
continue to be exercisable in accordance with the terms
of this Agreement until the earlier of (A) the Option
Termination Time and (B) the ninetieth day following
such termination of employment.
(b) In the event that (i) the Holder voluntarily terminates his
employment with the Corporation for Good Reason, (ii) the Corporation
terminates the Holder's employment other than for Cause, (iii) the Holder's
employment is terminated as a result of the Holder's death or Disability,
or (iv) the Holder's employment with the Corporation is terminated upon
expiration of the Term (as defined in the Employment Agreement) as a result
of notice from the Corporation, then:
(i) the portion of the Option that is not exercisable shall
terminate as of such termination of employment; and
(ii) the portion of the Option that is exercisable shall continue
to be exercisable in accordance with the terms of this Agreement until the
Option Termination Time.
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(c) For purposes of this Agreement, the Holder shall be an
employee of the Corporation if he is an employee of either the Corporation
or any subsidiary of the Corporation.
2.7 NONTRANSFERABLE. The Holder will not transfer, sell,
convey, exchange, pledge or otherwise dispose of (herein referred to as
"disposition" or "to dispose of") the Option and the rights and privileges
of the Holder under this Agreement, except that in the event of the
Holder's death or incompetency, the Option may be transferred to a
permitted Transferee.
2.8 NO RIGHTS AS A STOCKHOLDER. The Option do not confer upon
the Holder or any Permitted Transferee any right to vote or consent or to
receive notice as a stockholder of the Corporation, as such, in respect of
any matters whatsoever, or any other rights or liabilities as a
stockholder, prior to the exercise of the Option as hereinabove provided.
2.9 NO RIGHTS TO EMPLOYMENT OR OTHER RELATIONSHIP. Nothing
contained in this Agreement shall confer upon the Holder any right with
respect to employment by or any relationship with the Corporation or
interfere in any way with the right of the Corporation at any time to
terminate the employment of the Holder or terminate any other relationship
the Holder may have with the Corporation or to increase or decrease any
compensation paid by the Corporation to the Holder.
2.10 CAPITAL REORGANIZATION. If there shall be any consolidation
or merger to which the Corporation is a party, other than a consolidation
or a merger in which the Corporation is a continuing corporation and which
does not result in any reclassification of, or change (other than a
subdivision or combination of the Common Stock or a change in par value)
in, outstanding shares of Common Stock, or ny sale or conveyance of the
property of the Corporation as an entirety or substantially as an entirety
(any such event being called a "Capital Reorganization"), then, effective
upon the effective date of such Capital Reorganization, the Holder shall
have the right to purchase, upon exercise of the Option, the kind and
amount of shares of stock and other securities and property (including
cash) which the Holder would have owned or have been entitled to receive
after such Capital Reorganization if the Option had been exercised
immediately prior to such Capital Reorganization, assuming the Option were
exercisable for all of the Option Shares immediately prior to such Capital
Reorganization. As a condition to effecting any Capital Reorganization,
the Corporation or the successor or surviving corporation, as the case may
be, shall execute and deliver to the Holder an agreement as to the Holder's
rights in accordance with this Section 2.10, providing for rights as nearly
as equivalent as may be practicable to the rights provided for in this
Agreement. The provisions of this Section 2.10 shall similarly apply to
successive Capital Reorganizations.
2.11 PROTECTION OF PURCHASE RIGHTS. The Corporation shall not
participate in any reorganization, transfer of assets, consolidation,
merger, dissolution, issuance, sale, repurchase or redemption of securities
or any other voluntary action, for the purpose of avoiding or seeking to
avoid the observance or performance of any of the terms to be observed or
performed by the Corporation under this Agreement or the rights of the
Holder under this Agreement, but will at
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all times, in good faith, assist in the carrying out of all the provisions
of this Agreement and will take all actions that may be necessary or
appropriate in order to protect the rights of the Holder under this
Agreement against impairment.
3. COVENANTS OF THE CORPORATION. The Corporation covenants and agrees as
follows: (a) that during the period within which the Option may be
exercised, the Corporation will at all times have authorized and in reserve
a sufficient number of shares of its Common Stock to provide for the
exercise of the Option, (b) the Option Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid, non-assessable, (c) the Corporation will pay all
federal and state taxes (other than income taxes) which may be payable in
respect of the Option or any Common Stock or certificates therefor upon its
exercise pursuant to the provisions of this Agreement, and (d) the Option
Shares will be registered for resale by the Holder or Permitted Transferee
under the Securities Act of 1933 on or prior to August 1, 1998.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the
benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not.
4.2 DESCRIPTIVE HEADINGS; ROUNDING. The descriptive headings of
this Agreement are inserted for convenience of reference only and do not
constitute a part of this Agreement. All calculations under this Agreement
shall be made to the nearest cent or one-hundredth of a share, as the case
may be.
4.3 CLOSING OF TRANSFER BOOKS. The right to exercise the Option
will not be suspended during any period while the stock transfer books of
the Corporation for the Common Stock may be closed. The Corporation will
not be required, however, to deliver certificates of the Common Stock upon
such exercise while such books are duly closed for any purpose, but the
Corporation may postpone the delivery of such certificates until the
opening of such books, and they will, in such case, be delivered forthwith
upon the opening thereof, or as soon as practicable thereafter.
4.4 NOTICES. Any notices desired, required or permitted to be
given hereunder will be delivered personally or mailed, certified mail,
return receipt requested, or delivered by overnight courier service, to the
following addresses, or such other address as any party hereto designates
by written notice to the Corporation, and will be deemed to have been given
upon delivery, if delivered personally, five business days after mailing,
if mailed, or one business day after delivery to the overnight courier
service, if delivered by overnight courier service:
If to the Company, to:
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MedCare Technologies, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
If to the Executive, to:
Xx. Xxxx Xxxxxx
0000 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
4.5 GOVERNING LAW. The validity, meaning and effect of this
Agreement will be determined in accordance with the internal law of, and
not the law of, conflicts of the State of Illinois.
4.6 EXHIBITS. All exhibits hereto are an integral part of this
Agreement.
4.7 FINAL AGREEMENT. This Agreement, together with the
Employment Agreement, constitutes the final agreement of the parties
concerning the matters referred to herein, and supersedes all prior
agreements and understandings with respect thereto.
4.8 NO ATTACHMENT. Except as required by law, no right to
receive Option Shares under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation or to execution, attachment, levy, or
similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void and
of no effect.
4.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
will be deemed an original, and such counterparts together will constitute
one instrument.
This Option Agreement was executed as of the date first set forth
above.
MEDCARE TECHNOLOGIES, INC.
By:_________________________________
Its:________________________________
HOLDER:
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______________________________________
Xxxx Xxxxxx
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EXHIBIT A
---------
TO: MEDCARE TECHNOLOGIES, INC.
The undersigned, pursuant to the terms and conditions of the
Option Agreement dated ____________________, 199_, by and between MedCare
Technologies, Inc. and the undersigned (the "Option Agreement"), hereby
exercises the options granted thereby to purchase the following number of
shares of Common Stock pursuant to such options at the corresponding price
per share provided in the Option Agreement and is hereby tendering full
payment therefor in accordance with the terms of the Option Agreement:
Number of Shares Aggregate
to be Purchased: Exercise Price:
_________________ _______________
Dated:_______________________ ____________________________________
Xxxx Xxxxxx
