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EXHIBIT 10.21
August 26, 1996
Xx. Xxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxx Xxxx Xxxxx, XX 00000
Dear Xx. Xxxxxx,
This letter, when accepted by you in a manner hereinafter provided, will
evidence the agreement among Complete Wellness Centers, Inc., a Delaware
Corporation (the "Company") and Xx. Xxxx Xxxxxx (the "Employee") for the
provision of certain services to be rendered by Employee to the Company (the
"Agreement"), all under the following terms and conditions to wit:
1. EMPLOYMENT DUTRES
The Company shall employ Employee as Senior Director for Operations and
Development. Employee shall report to the President and Chief Operating
Officer subject in all events to the control and supervision of the Board of
Directors.
Employee shall devote his time and best efforts on a substantially full time
basis to the business and affairs of the Company. It is understood by Employee
and Company that Employee shall be primarily located in Florida but shall be
available for travel to the Company's Headquarters office, field operations,
and developmental prospects as needed and for up to three working, days per
week, limited to a maximum of ten working days per month.
Engagement. Company hereby employs Xxxx X. Xxxxxx with principal
responsibilities as follows:
(i) the integration and oversight of the search and acquisition
and/or management of chiropractic clinics and their
integration with medical professionals and services
("Integration"),
(ii) the development of medical clinics that integrate
traditional medical professionals with alternative medical
providers including chiropractic ("Integrated Medical
Centers"),
(iii) the development of ancillary services to be offered at the
Integrated Medical Centers.
2. EMPLOYMENT TERM
This Agreement shall commence on August 26, 1996, and shall end three years
from date of inception (the "Employment Term") unless extended by the Company
and Employee in writing or unless sooner terminated in accordance with the
provisions of this Agreement. The term of this Agreement is coterminous with
the Consulting Agreement between the Company and J.E.M., Inc.
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3. COMPENSATION, EXPENSES, ETC.
In consideration of performance of the services and activities hereby, the
Company shall pay Employee compensation as follows:
A. A base salary of four thousand ($4,000) per month, which shall accrue
until such time as the Company closes its initial public offering.
Upon the close of the Company's initial public offering, all accrued
salary shall be paid in full. At such time, the base salary shall be
increased to forty eight thousand dollars ($48,000) per annum, in
cash, paid semi-monthly in arrears.
B. Employee shall receive a performance bonus (the "Bonus") equal to
twenty percent (20%) of the Company's Bonus Fund, in accordance with
the Company's 1995 Bonus Plan for Key Executives. For the purpose of
this Section 3, the "Bonus Fund" shall be equal to at least ten
percent (10%) of the Company's pre-tax income. Such bonus shall be
paid within ninety (90) days after the end of each Company fiscal
year which shall be December 31.
C. After the initial public offering is closed, an automobile allowance
of five hundred dollars ($500) per month.
D. Four (4) weeks of compensated personal leave which shall vest ratably
throughout the year.
E. Upon termination of this Agreement pursuant to Sections 5a or 5b,
Employee shall receive a severance payment equal to Sixty Thousand
dollars ($60,000). Such severance shall be payable in six (6) equal
monthly installments beginning in the second calendar month following
the month in which termination occurs.
F. The Company shall provide Employee with an office and secretarial
services comparable to those of its other executive employees after
the initial public offering. Until such public offering is closed,
Employee shall work out of his home.
G. The Company shall provide Employee with such medical and other
benefits as the Company shall make available to its executive
employees.
The Company shall deduct the usual withholding taxes from Employee's
compensation consistent with standard practices and applicable federal and
state laws.
The Company shall reimburse Employee for any documented out of pocket expenses
incurred in connection with the duties and responsibilities described herein,
subject to the Company's policies.
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4. STOCK OPTIONS
Employee will be granted upon execution of this Agreement options (the
"Options") to purchase one hundred forty thousand (140,000) shares of the
Company's common stock at an exercise price of $.20 per share under the
Company's Incentive Stock Option Plan. The Options will be evidenced by a
stock option agreement and will vest with respect to 40,000 options on August
26, 1996, 50,000 options on August 26, 1997, and 50,000 options on August 26,
1998 and shall be exercisable for a period of five years from August 26, 1996.
However, in the event the Agreement is terminated pursuant to Sections 5a, b,
c, or d, such Options shall be exercisable for a period of three (3) months
from the date of termination, if they vested prior to termination.
5. TERMINATION
This Agreement may be terminated prior to the end of the Employment Term,
a) by the written mutual agreement between Company and Employee;
b) by the death of Employee or Ws disability (with the exception of his
present disability) for a period of one hundred and twenty (120)
consecutive days or the adjudicated mental incompetency of Employee-
or
C) by the Company for cause, where "cause" shall mean for purpose of
this Agreement:
1) a violation by Employee of any material provision of this
Agreement, a breach of fiduciary duty, manifest incompetence,
gross negligence of duty or conduct; where such violation,
activity, or conduct is not remedied by Employee within thirty
(30) days of written notice from the Company.
2) Employee's conviction of a felony; or
d) by the Company or Employee if the initial public offering is not
closed by January 3 1, 1997.
e) by Employee within 30 days following the initial public offering;
6. COVENANT NOT TO COMPETE, NOT TO SOLICIT
6.1 This Section 6.1 A and B shall apply to Termination Sections 5a, 5b,
or 5c and not 5d, or 5e. Section 6.1 C shall apply under all
conditions of Section 5.
A. During the Employment Term and for six (6) months thereafter,
the Employee will not without the prior written permission of the Company
(which shall not be unreasonably withheld in the event of participation by
Employee in a business activity that is not directly related to the Company's
or any of its subsidiaries' or affiliates' line of business), in each instance
directly or indirectly carry on or participate in a business the same as or
similar to or in competition with that conducted or engaged in by the Company
or any of its subsidiaries or affiliates.
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B. The term "carry on or participate in a business the same as or
similar to that conducted or engaged in by the Company or any of its
subsidiaries or affiliates" shall include the Employee, directly or indirectly,
doing any of the following listed acts, other than carrying on or engaging in
activities expressly permitted under this Agreement.
(i) Carrying on or engaging in any such business as a
principal, or solely or jointly with others as a director, officer, agent,
employee, consultant or partner, or stockholder or limited partner owning more
than five percent (5%) of the stock or equity interests in or securities
convertible into more than five percent (5%) of the stock of or equity
interests in any corporation, association or limited partnership; or
(ii) As agent or principal carrying on or engaging in any
activities or negotiations with respect to the acquisition or disposition of
any such business; or
(iii) Lending credit or money for the purpose of establishing or
operating any such business; or
(iv) Giving advice to any other firm, association, corporation
or other entity engaging in any such business; or
(v) Lending or allowing his name or reputation to be used in
any such business; without Company's approval; or
C. In the event of a breach or threatened breach by the Employee of
the provisions of this Section 6, the Company shall be entitled to injunctive
relief against the Employee. Nothing herein shall be construed as prohibiting
the Company from pursuing any other remedies available to the Employer for such
breach or threatened breach, including without limitation the recovery of
damages from the Employee.
6.2 During the Employment Term and for one (1) year thereafter, the Employee
will not without the prior written permission of the Company in each instance
will not solicit, or attempt to solicit and employ any employee of the Company
or any of its subsidiaries or affiliates, or commit an act the primary purpose
of which is to induce any employee of the Company or any of its subsidiaries or
affiliates to leave such employment or significantly interfere with, disrupt or
attempt to disrupt any past, present or prospective relationship, contractual
or otherwise, relating to the business activities between the Company or any of
its subsidiaries or affiliates and their respective prospects.
6.3 The parties hereto consider the restrictions contained in this Section 6
to be reasonable. If, however, such restrictions are found by any court having
jurisdiction to be unreasonable because they are (or any of them is) too broad,
then such restrictions shall nevertheless remain effective, but shall be
considered amended as to protection of business, time or geographic area in
whatever manner is considered reasonable by that court and, as so amended,
shall be enforced.
6.4 The provisions of this Section 6 shall survive the expiration or
termination, for any reason, of this Agreement and shall be separately
enforceable.
7 NON-DISCLOSURE OF CONFRDENTIAL INFORMATION
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A. The Employee agrees that he will not, during the Employment Term or
thereafter, make use of, divulge or otherwise disclose, directly or
indirectly, any trade or business secret (including, without
limitation, any customer list, data, records or financial information
constituting a trade or business secret) concerning the business or
policies of the Company or any of its subsidiaries or affiliates
which he may have learned as a result of his employment during the
Employment Term or prior thereto as shareholder, employee, officer
and/or director or the Company except to the extent such use or
disclosure is necessary to the performance of this Agreement and in
furtherance of the Company's best interest. The provisions of this
Section 7 shall survive the expiration or termination, for any
reason, of this Agreement. However, any material brought to the
Company by Employee is Employee's sole property which may be utilized
by the Company during the term of this Agreement.
B. The Employee shall not during the Employment Term or for six (6)
months thereafter make use of, divulge or otherwise disclose,
directly or indirectly, any confidential information concerning the
business or policies of the Company or any of its subsidiaries or
affiliates which he may have learned while a shareholder, employee,
officer and/or director of the Company.
C. In the event of a breach or threatened breach by the Employee of the
provisions of this Section 7, the Company shall be entitled to an
injunction restraining the Employee from disclosing, in whole or in
part, any such trade or business secret and/ or any such confidential
information, or from rendering any services to any person, firm,
corporation association, or other entity to whom any such trade or
business secret and/or any such confidential information, in whole or
in part, has been disclosed or is threatened to be disclosed.
Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach
or threatened breach, including without limitation the recovery of
damages from the Employee.
D. The provisions of this Section 7 shall survive the expiration or
termination, for any reason, of this Agreement and shall be
separately enforceable.
8. AMENDMENT
This Agreement may be amended only by the written agreement of the Company and
Employee.
9. SUCCESSORS AND ASSIGNS
The Company's rights and obligations under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company; and
the Company may delegate all or any part of its rights and obligations
hereunder to any affiliate or subsidiary of the Company.
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The Employee acknowledges and agrees that this Agreement is personal to him and
Its rights and interests hereunder may not be assigned, nor may his obligations
and duties hereunder be delegated.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws
of the State of 5 Maryland.
11. ENTIRE AGREEMENT
This Agreement supersedes any and all other agreements, either oral or written
heretofore made with respect to the subject matter hereof
12. SEVERABILITY
Any provision of this Agreement which is found to be unenforceable in any
jurisdiction, shall, as to such jurisdiction only, be ineffective to the extent
of such unenforceability, without invalidating or otherwise affecting the
remaining provisions hereof If any of the covenants against competition
contained in Section 6 are found by a court having jurisdiction to be
unreasonable in duration, geographical scope, or character of restriction, the
covenant shall not be rendered unenforceable thereby, but rather the duration,
geographical scope, or character of restriction of said covenant shall
respectively be reduced or modified to render the covenant reasonable and the
covenant shall be enforced as modified.
13. COUNTERPARTS
This Agreement may be executed simultaneously in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Agreement shall be binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of the parties reflected hereon as signatories.
14. NOTICES
All notices required or permitted under this Agreement shall be in writing and
shall be deemed effective upon personal delivery or upon deposit in the United
States Post Office, by registered or certified mail, postage prepaid, addressed
to:
a) Employee at the address shown above, or at such other address or
addresses as Employee shall designate to the Company in accordance with this
Section, or
b) Company at the address set forth on the above letterhead, or at
such other address as the Company shall designate to Employee in accordance
with this section.
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15. PRONOUNS
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms and the singular
form of nouns and pronouns shall include the plural and vice versa.
16. MISCELLANEOUS
(1) No delay or omission by the Company or Employee in exercising any
right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company or Employee on any one
occasion shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.
(2) The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or substance of
any of this Agreement.
If the foregoing accurately sets out our agreement with regard to the above,
please indicate your acceptance by executing and returning two copies of this
letter to the undersigned.
Very truly yours,
COMPLETE WELLNESS CENTERS, INC Accepted and agreed to this _____ day
of 1996.
By:
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E. Xxxxxx Xxxxxx Xxxx Xxxxxx, D.C.
President and Chief Operating
Officer
