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EXHIBIT 10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made this 4th day of May, 1995,
by and between Young Dental Manufacturing Company, a Missouri corporation (the
"Corporation") and Xxxxxxx X. Xxxxxxxx, Xx. ("Consultant"), an individual
residing at 000 Xxxxxxxx, Xxxx & Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Corporation and Consultant have entered into a certain Employment
and Noncompetition Agreement of even date herewith (the "Employment
Agreement"); and
WHEREAS, Corporation desires to hire Consultant to provide consulting
services to Corporation at the completion of the Employment Agreement and
Consultant desires to provide such services to Corporation upon completion of
the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
promises herein contained, the adequacy and receipt of which is hereby
acknowledged, Corporation and Consultant hereby agree as follows.
I. RETENTION
On the Effective Date (as herein defined), Corporation shall retain
Consultant as a consultant to Corporation, and Consultant accepts retention by
Corporation as a consultant upon all of the terms and conditions set out in
this Agreement.
II. POSITIONS, DUTIES AND SCHEDULE
2.1 POSITIONS. Consultant shall serve as a consultant to Corporation. The
relationship created by the consulting services provided by Consultant to
Corporation shall be that of independent contractor and not that of employee
and employer. Consultant shall be responsible for the payment of any taxes,
including, without limitation, all Federal, State and local personal and
business income taxes, sales and use taxes, and other business taxes or fees
arising out of the activities of Consultant. Corporation shall not make any of
the benefits afforded to Corporation's employees available to Consultant.
2.2 RESPONSIBILITIES. Consultant shall provide consulting services and
shall be available to assist Corporation on projects
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and matters that are within Consultant's areas of expertise and training, as
assigned by the Board of Directors or the President of Corporation.
2.3 SCHEDULE. Consultant shall be available a minimum of fifty (50) days
per year during the term of this Agreement. It is anticipated by the parties
hereto that Consultant shall be available approximately one (1) day per week or
four (4) days per month.
III. TERM OF RETENTION
Consultant's retention under this Agreement shall commence immediately at the
termination of the Employment Agreement (the "Effective Date"), and shall
continue until 12:00 a.m. on the date that Consultant turns sixty-five (65)
years of age, unless earlier terminated pursuant to the terms of this
Agreement.
IV. COMPENSATION
4.1 REGULAR COMPENSATION. For all services rendered by Consultant during
the term of this Agreement, Consultant shall be entitled to receive regular
annual payments in the amount of Thirty Two Thousand Dollars ($32,000). Such
payments shall be made in twelve (12) equal monthly installments, or as
mutually agreed upon by the parties hereto.
4.2 WITHHOLDING. All payments shall be less such amounts as are required to
be withheld by federal, state or local law, if any.
V. TERMINATION OF RETENTION
5.1 TERMINATION BY CORPORATION. Corporation may terminate Consultant's
retention pursuant to this Agreement in the event that Consultant during the
term of this Agreement shall be in Actual Default (as defined herein) under any
provision of this Agreement, or if Consultant has committed acts of gross
negligence, dishonesty or misconduct in carrying out his obligations or
responsibilities to the Corporation, as determined in the reasonable discretion
of the Board of Directors of the Corporation, by giving at least thirty (30)
days prior written notice to Consultant of Corporation's intention to terminate
this Agreement. In the event of such termination by Corporation, Consultant
shall have the right to reasonable access to documents and records of
Corporation in a subsequent investigation by Consultant challenging the grounds
for termination.
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In the event of any such termination by Corporation, Corporation shall be
obligated to continue to pay Consultant the compensation due Consultant under
this Agreement up to the termination date stated in said written notice so long
as Consultant continues to be ready, willing and able to perform all of
Consultant duties in accordance with this Agreement.
5.2 TERMINATION BY CONSULTANT. Consultant may terminate Consultant's
retention pursuant to this Agreement in the event that Corporation, during the
term of this Agreement, shall be in Actual Default (as defined herein) under
any provision of this Agreement, by giving at least sixty (60) days prior
written notice to Corporation of Consultant's intention to terminate this
Agreement.
In the event of any such termination by Consultant, Corporation shall
continue to pay Consultant the salary due Consultant under this Agreement up to
the termination date stated in Consultant's written notice so long as
Consultant continues to perform all of Consultant duties in accordance with the
terms of this Agreement and so long as there is no earlier termination date
under any notice given by Corporation.
5.3 TERMINATION BY MUTUAL AGREEMENT. Consultant's retention under this
Agreement may be terminated at any time by mutual written agreement between the
parties hereto.
5.4 COOPERATION BY CONSULTANT. Following any such notice of termination,
Consultant shall fully cooperate with Corporation in all matters relating to
the winding up of Consultant's pending work on behalf of Corporation and the
orderly transfer of any such pending work to such other employees of
Corporation as may be designated by Corporation; and to that end Corporation
shall be entitled to such services of Consultant as Corporation may reasonably
require during all or any part of the period from the time of giving any such
notice until the effective date of such termination.
5.5 SETTLEMENT OF ACCOUNTS. After any termination of this Agreement, all
compensation and amounts due to Consultant with respect to work performed or
expenses incurred prior to the date of termination shall be reconciled with
amounts due to Corporation from Consultant. Each party shall be entitled to
offset against any amounts that may be due to the other party such amounts as
are due from such other party to it or him. The parties shall proceed
expeditiously to accomplish the foregoing, and the resulting amount due from
one party to the other shall be paid promptly after it is determined.
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VI. FILES AND RECORDS
All files, records, documents and reports concerning customers of
Corporation, including, without limitation, clients and customers consulted,
interviewed or served by Consultant during the term of this Agreement shall
belong to and remain the property of Corporation.
VII. CONFIDENTIAL INFORMATION
7.1 NONDISCLOSURE BY CONSULTANT. Consultant will not, except as authorized
by Corporation, during or at any time after the termination of Consultant's
retention with Corporation, directly or indirectly, use for himself or others,
or disclose, communicate, divulge, furnish to, or convey to any other person,
firm, or corporation, any secret or confidential information, knowledge or data
of Corporation or that of third parties obtained by Consultant during the
period of his retention with Corporation and such information, knowledge or
data includes, without limitation, the following:
a) Secret or confidential matters of a technical nature such as, but not
limited to, methods, know-how, formulae, compositions, processes,
discoveries, manufacturing techniques, inventions, computer programs, and
similar items or research projects involving such items;
b) Secret or confidential matters of a business nature such as, but not
limited to, information about costs, purchasing, profits, market, sales or
lists of customers; or
c) Secret or confidential matters pertaining to future developments such as,
but not limited to, research and development or future marketing or
merchandising.
7.2 SURRENDER OF INFORMATION. Consultant, upon termination of his retention
with Corporation, or at any other time upon Corporation's written request,
shall deliver promptly to Corporation all drawings, blueprints, manuals,
letters, notes, notebooks, reports, sketches, formulae, computer programs and
similar items, memoranda, lists of customers, and all other materials and
copies thereof relating in any way to Corporation's business which contain
confidential information and which were in any way obtained by Consultant
during the term of his retention with Corporation which are in his possession
or under his control; and Consultant will not make or retain any copies of any
of the foregoing and will so represent to Corporation upon termination of his
retention.
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7.3 REMEDIES. Consultant understands and acknowledges that the such
confidential information or other commercial ideas mentioned herein are unique
and that the disclosure or use of such matters or any other secret or
confidential information other than in furtherance of the business of
Corporation would reasonably be expected to result in irreparable harm to
Corporation; and that in addition to whatever other remedies Corporation and/or
its successors or assigns may have at law or in equity, Consultant specifically
covenants and agrees that, in the event of default under or breach of this
Agreement, Corporation and/or its successors and assigns shall be entitled to
apply to any court of competent jurisdiction to enjoin any breach, threatened
or actual, of the foregoing covenants and promises by Consultant, and/or to xxx
to obtain damages for default under or any breach of this Agreement. In the
event of default under or breach of this Agreement, Consultant hereby agrees to
pay all costs of enforcement and collection of any and all remedies and damages
under this Agreement, including reasonable attorneys' fees as determined by a
court of competent jurisdiction.
XIII. ACTUAL DEFAULT
In the event either party believes that the other party has failed to fulfill
any of his or its obligations under this Agreement, the party aggrieved by such
default shall give the other party written notice of such default specifying
the nature thereof. If within thirty (30) days after the giving of such
notice, the alleged defaulting party has failed or refused to remedy such
default, the party aggrieved by such alleged default may by notice in writing
declare the alleged defaulting party to be in actual default ("Actual Default")
of this Agreement and proceed in the manner otherwise provided for herein. The
provisions of this Section are intended to provide a means whereby the party
alleged to be in default under this Agreement will have an opportunity to cure
any such alleged default before the aggrieved party shall be entitled to
attempt to terminate this Agreement. The giving of such notice and the
expiration of the thirty (30) day period provided for herein shall not,
however, prevent the alleged defaulting party from establishing that no default
did in fact exist.
IX. BINDING ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled by arbitration in accordance with the Rules of
the American Arbitration Association at a mutually convenient location agreed
to by the parties or the arbitrators, and the parties hereby agree to be
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bound by the results thereof. Each party shall choose one arbitrator and a
third arbitrator shall be chosen by the two arbitrators so chosen by the
parties. A judgment upon any award rendered by a majority opinion of the
arbitrators so chosen may be entered in any court having jurisdiction thereof.
X. GENERAL PROVISIONS
10.1 WAIVER. The waiver by either party of a breach or violation of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any subsequent breach hereof.
10.2 SEVERABILITY. Should any one or more sections of this Agreement be
found to be invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining sections contained herein shall
not in any way be affected or impaired thereby. In addition, if any section
hereof is found to be partially enforceable, then it shall be enforced to that
extent.
10.3 NOTICES. Any and all notices required or permitted to be given under
this Agreement shall be sufficient if furnished in writing and personally
delivered or sent by registered or certified mail to the last known residence
address of Consultant or to Corporation at its principal office at 00000
Xxxxxxxxx Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxx 00000 or such other place as it may
subsequently designate in writing.
10.4 GOVERNING LAW. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Missouri.
10.5 SECTION HEADINGS. The section headings contained in this Agreement are
for convenience only and shall in no manner be construed to limit or define the
terms of this Agreement.
10.6 COUNTERPARTS. This Agreement shall be executed in two or more
counterparts, each of which shall be deemed an original and together they shall
constitute one and the same Agreement, with at least one counterpart being
delivered to each party hereto.
10.7 ASSIGNABILITY. Corporation shall have the right to assign this
Agreement to a third party which purchases substantially all of the then assets
of the business formerly operated by it.
10.8 SUCCESSORS AND ASSIGNS BOUND. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and
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their respective heirs, personal representatives, successors and assigns.
10.9 ENTIRE AGREEMENT. This is the entire and only Agreement between the
parties respecting the subject matter hereof. This Agreement may be modified
only by a written instrument executed by all parties hereto.
IN WITNESS WHEREOF, Corporation has caused this Agreement to be executed by
and its corporate seal to be affixed by its duly authorized officers, and
Consultant has executed this Agreement as of the date first written above.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
YOUNG DENTAL MANUFACTURING COMPANY
By:/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Its: President
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CONSULTANT:
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
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