METALLURGICAL INDUSTRIES, INC.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
March 1, 1995
Xx. Xxxxxxx Xxxxxxxxx
000-00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
RE: Letter of Agreement
Dear Xx. Xxxxxxxxx:
Further to our very productive discussions, we are pleased to offer you the
positions of President and Director of Metallurgical Industries, Inc. on the
following terms:
This Agreement is made effective this 1st day of March, 1995, by and between
Metallurgical Industries, Inc., a New Jersey corporation ("Company") and Xxxxxxx
Xxxxxxxxx, an individual ("Lifschutz").
1. Employment. The Company employs Lifschutz and Lifschutz accept
employment as President and Director of the Company upon the terms and
conditions set forth in this Agreement.
2. Term. The term of this Agreement shall commence February 28, 1995, and
shall continue for an initial term of three (3) months. This Agreement may be
renewed at the end of the term for an additional term upon the satisfactory
performance of Lifschutz and the written agreement of the parties. If there is
no written agreement for additional term then the employment will continue on a
month to month basis subject to termination by either party at will or upon
thirty (30) days written notice to the other party.
3. Compensation. Company agrees to compensate Lifschutz in the amount of
5000 restricted shares of the Common Stock of Company for each month that
Lifschutz serves as President of the Company. This compensation shall be paid a
year in advance. These shares ("Compensation Shares") will be valued at the
average of the ask and bid prices of the free-trading Common Stock of Company
for the ten (10) days preceding the issuance of such shares as quoted on the
National Association of Securities Dealers Automated Quotation System (NASDAQ),
or other reliable source if not listed on the NASDAQ. Company shall be entitled
to prorate the Compensation Shares paid if Lifschutz serves as President for
less than one full term of this Agreement or less than a full month if this
Agreement is extended on a month to month basis pursuant to Paragraph 2. Company
may, at its discretion, issue end of year bonuses to Lifschutz as it may deem
fit. The Company hereby grants Lifschutz an option to purchase a maximum of 5000
additional shares of restricted common stock per month at fifty cents per share.
This option shall expire one year from the date of execution of this agreement
unless otherwise agreed by the parties. The shares of Common Stock that are the
subject of Lifschutz's compensation shall, when issued, be validly issued, full
paid and nonassessable. A finders fee shall also be paid by Company to Lifschutz
for every transaction involving a business opportunity which Lifschutz
introduces to Company, which fee shall be in the amount of five percent (5%) in
kind of assets received by Company in connection with such transaction. Until
the Board directs otherwise, the Company agrees to pay the finders fee, at
Lifschutz' election, in shares of common stock of the Company. Provided however
that the total number of shares issued under this paragraph shall not exceed 9%
of the total shares of the Company issued and outstanding.
4. Duties. During the term of this Agreement, Lifschutz shall initially
occupy the office of President of Company. Lifschutz shall perform the tasks and
have the rights, powers and obligations normally associated with the office of
President. Lifschutz agrees to serve in such officers of positions with Company
or any subsidiary of Company that Company's Board of Directors ("Board of
Directors") shall reasonably request. Lifschutz further agrees to server as a
member of the Board of Directors, and agrees to serve as Director of any
subsidiary of Company, for no additional compensation.
5. Extent of Services/Conduct. Lifschutz may perform services for other
organizations and volunteer for one or more charitable organizations provided
that, in the reasonable judgment of the Board of Directors, such services do not
interfere and are not inconsistent with Lifschutz's duties and obligations under
this Agreement. Lifschutz may invest his assets in such form or manner as will
not require his services in the operation of the affairs of the companies in
which such investments are made, provided said companies are not in competition
with the business of Company. Lifschutz pledges his careful avoidance of all
personal acts, habits, usages, and statements which might injure, in any way,
directly or indirectly, the personal or business reputation of the Company.
Company expressly retains the right to approve, in its sole discretion, each and
every transaction introduced by Lifschutz that involves Company as a party to
any agreement.
6. Covenant Not To Compete . During the term of this Agreement and for a
period of three (3) years after the termination of this Agreement, Lifschutz
shall not without the written consent of Company, directly or indirectly,
solicit or accept business from any customer of the Company or perform any of
the services included within the Company's business for any customer of the
Company and shall not directly or indirectly, serve as an officer, Director,
Company Director, or independent contractor of, to, or from any individual,
partnership, or corporation, or as an owner of any business which, in the
reasonable judgment of the Board of Directors, competes with the Company in its
business or business prospects. Lifschutz shall not without the written consent
of the Company be paid (by other parties) commissions or fees on any
transactions entered into by the Company and which he introduced to the Company.
7. Non-Disclosure of Information. In further consideration of employment
and the continuation of employment by Company, Lifschutz will not, directly or
indirectly, during or after the term of employment disclose to any person not
authorized by Company to receive or use such information, except, for the sole
benefit of Company, any of Company's confidential or proprietary data,
information, or techniques, or give to any person not authorized by Company to
receive it any information that is not generally known to anyone other than
Company or that is designated by Company as "Limited," "Private," or
"Confidential," or similarly designated.
8. Expenses . Lifschutz may incur reasonable expenses for promoting the
Company's business, including reasonable expenses for entertainment, travel, and
similar items. The Company will reimburse Lifschutz for all such pre-approved
expenses upon Lifschutz's periodic presentation of any itemized account of such
expedites.
9. Disability. If Lifschutz is unable to perform his services by reason of
illness or incapacity, the base salary payable to him under Paragraph 3 of this
Agreement shall continue only in accordance with decisions unilaterally reached
by the Board of Directors or pursuant to any written policy of the company.
10.Fringe Benefits. In addition to the compensation to Lifschutz under
Paragraph 3, Lifschutz shall be entitled to participate in any benefit plans
adopted by the Company, including, without limitation, health, retirement,
disability, and life insurance benefit plans, but only to the extent that
Lifschutz has satisfied the eligibility requirements of the respective plans and
the benefits are offered to all other employees of Company.
11.Termination for Cause. The Company may terminate this Agreement at will
and/or for cause at any time. For purposes of this Agreement, the term "cause"
includes, without limitation, Lifschutz's (a) neglect or intentional disregard
of duties, (b) unauthorized disclosure of confidences of the Company, (C)
conviction of felony or any crime involving moral turpitude by a court of
competent jurisdiction, (d) willful misconduct, (e) excessive use of alcohol on
repeated occasions or addiction to narcotics, (f) breach of this Agreement, or
(g) dishonesty. All advance compensation shares issued but not earned shall be
returned to Company.
12.Termination Upon Sale of Business. Company may terminate this Agreement
upon thirty (30) days written notice to Lifschutz upon the happening of any of
the following events:
a) The sale, by the Company, of substantially all of its assets to a
single purchaser or group of associated purchasers;
b) The sale, exchange, or other disposition to a single entity or group
of entities under common control in one transaction or series of related
transactions of greater than fifty percent (50%) of the outstanding shares
of the Company's common stock;
c) A decision by Company to terminate its business and liquidate its
assets; or
d) The merger or consolidation of the Company in a transaction in which
the shareholders of the Company receive less than fifty percent (50%) of
the outstanding voting shares of the new or continuing corporation.
13.Death During Employment. If Lifschutz dies during the term of this
Agreement, then the Company shall pay to the designated beneficiary of Lifschutz
the compensation which would otherwise be payable to Lifschutz up to the end of
the month in which such death occurs and this Agreement shall be terminated. If
no beneficiary designation has been made by Lifschutz, then the compensation due
hereunder shall be paid to Lifschutz's estate. All advance compensation shares
issued but not earned shall be returned to Company.
14.Lifschutz Not Restricted by Other Agreement. Lifschutz hereby expressly
represents, warrants, and covenants to the Company that he is not bound, in any
manner, by any agreement, whether written or oral, which would restrict him from
performing any duties under this Agreement.
15. Survival. The provisions of this Agreement including, specifically,
Lifschutz's representation, covenants, and agreements set forth in Paragraphs 7
and 8, shall survive the termination of this Agreement.
16. Entire Agreement. This Agreement constitutes the entire understanding
between the parities and there are no covenants, conditions, representations, or
agreements, oral or written, or any nature whatsoever, other than those herein
continued.
17. Amendments. No amendment, alteration, or modification of this Agreement
shall be binding upon the parties hereto unless said amendment, alteration, or
modification is in writing and signed by all parties hereto.
18. Waiver. The waiver of any term, condition, clause, or provision of this
Agreement shall in no way we deemed or considered a waiver of any other term,
condition, clause, or provision of this Agreement.
19. Severability. If any term, condition, clause, or provision of this
Agreement shall be deemed to be void or invalid then that term, condition,
clause, or provision shall be stricken from this Agreement to the extent it is
held to be void or invalid, to be void or invalid and in all other respects this
Agreement shall be valid and in full force and operation.
20. Notices. Any notice or other communication required or permitted
hereunder shall be sent by United States certified mail, postage prepaid,
addressed:
if to the Company: Metallurgical Industries, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
and, if to Lifschutz: Xxxxxxx Xxxxxxxxx
000-00 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
or to such other person or address designated by the parties to receive notice.
The date of the notice shall be the date of the mailing.
21. Additional Documents. The parties hereto agree to execute any and all
additional papers and documents reasonably necessary or appropriate to
effectuate the terms of this Agreement.
22. Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Utah. Any legal action hereunder shall be properly
commenced only in a federal or state court of competent jurisdiction in Salt
Lake County, Utah. The prevailing party in any such action shall be entitled to
recover, in addition to any relief or award ordered by the court, a reasonable
attorney fee and all costs of court.
23. Assignment. This Agreement shall not be assignable by any party to this
Agreement, except upon the written consent of all parties hereto. The Lifschutz
shall not have the right to pledge, encumber, or dispose of the right to receive
any payments under this Agreements, which payments and the right thereto are
expressly declared to be non-assignable and nontransferable and, in the event of
any attempted assignment or transfer, the Company shall have not further
liability hereunder.
24. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original but both of which together shall constitute
one and the same agreement.
25. Indemnification. Company and Lifschutz agree to indemnify, defend and
hold each other harmless from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties and attorneys fees and expenses asserted against or imposed
or incurred by either party by reason of or resulting from a breach of any
representation, warranty, covenant condition or agreement of the other party to
this Agreement.
26. No Third Party Beneficiary. Nothing is this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties hereto
and their successors, any rights or remedies under or by reason of this
Agreement, unless this Agreement specifically states such intent.
27. Facsimile Counterparts. If a party signs this Agreement and transmits
an electronic facsimile of the signature page to the other party, the party who
receives the transmission may rely upon the electronic facsimile as a signed
original of this Agreement.
[THIS SPACE LEFT BLANK]
If this letter of agreement meets with your approval, please append your
signature at the bottom right hand corner of this page.
Sincerely,
/s/ Xxxxxxx Xxxxxx
for and on behalf of the Board
Agreed to and accepted:
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
