EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), entered into as of the 11th
of November, 1996 by and between MEDICAL INDUSTRIES OF AMERICA a Florida
corporation (hereinafter referred to as "Employer"), and Xxxxx Xxxxx
("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as provided herein; and
WHEREAS, Employee desires to accept such employment,
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledge, the parties hereto
agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions hereinafter set
forth.
2. DUTIES. Subject to the power of the Board of Directors of Employer to
elect and remove officers, Employee will serve Employer as its Sr. Vice
President and will faithfully and diligently perform the services and functions
relating to such offices or otherwise reasonable incident to such offices,
provided that all such services and functions will be reasonable and within
Employee's area of expertise. Employee will during the term of this Agreement
(or any extension thereof), devote his full business time, attention and skills
and best efforts to the promotion of the business of Employer. The foregoing
will not be construed as preventing Employee from making investments in other
business or enterprises provided that (a) Employee agrees not to become engaged
in any other business activity that interferes with his ability to discharge his
duties and responsibilities to Employer and, (b) Employee does not violate any
other provision of this Agreement.
3. TERM. The term of this Agreement will commence as of the date hereof
and will end on that date in the year 2001 unless earlier terminated by either
party pursuant to the terms hereof. The term of this agreement is referred to
herein as the "Term". Assuming all conditions of this Agreement have been
satisfied and there has been no breach of the Agreement during its initial term,
Employer and Employee may mutually extend the term for an additional one (1)
year term at their election ("Extended Term"), written notice of which must be
given at least sixty (60) days prior to the end of such preceding term.
4. COMPENSATION. As compensation for the services rendered under this
Agreement, Employee will be entitled to receive the following:
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(a) SALARY. Commencing upon the date of this Agreement, Employee
will be paid a minimum annual salary of $80,000 per year, payable in accordance
with the then current payroll policies of Employer or as otherwise agreed to by
the parties (the "Salary). At any time and from time to time the Salary may be
of Employer after a review of Employee's performance of his duties hereunder.
(b) OPTIONS. Commencing on the date of this Agreement, Employee
shall be issued a five (5) year option to purchase 40,000 shares of common stock
of the Company, half of which shares shall vest immediately and will be
exercisable throughout the term at a price of $1.50 per share.
(c) EXPENSES. Upon submission of a detailed statement and
reasonable documentation, Employer will reimburse Employee in the same manner as
other executive officers for all reasonable and necessary or appropriate out of
pocket travel and other expenses incurred by the Employee in rendering services
required under this Agreement.
(d) BENEFITS, INSURANCE.
(i) MEDICAL DENTAL AND VISION BENEFITS. During this
Agreement, Employee and his dependents will be entitle d to receive such group
medical dental and vision benefits as Employer may provide to its other
employees, provided such coverage is reasonable available, or be reimbursed if
Employee is carrying his own similar insurance.
(ii) BENEFIT PLANS. The Employee will be entitled to
participate in any benefit plan or program of the Employer which may currently
be in place or implemented in the future.
(iii) OTHER BENEFITS. During the Term, Employee will be
entitled to receive, in addition to and not in lieu of base salary, bonus or
other compensation, such as other benefits and normal perquisites as Employer
currently provides, including participation in Westmark Group Holdings stock
options plans, or such additional benefits as Employer may provide for its
officers in the future.
(e) VACATION. Employee will be entitled to two (2) weeks vacation
per year.
5. Confidentiality. In the course of the performance of Employee's
duties hereunder, Employee recognizes and acknowledges that Employee may have
access to certain confidential and proprietary information of Employer or any of
its affiliates. Without the prior written consent of Employer, Employee shall
not disclose any such confidential or proprietary information to any person or
firm, corporation, association or other entity for any reason or purpose
whatsoever, and shall not use such information, directly or indirectly, for
Employee's own behalf or on behalf of any other party. Employee agrees and
affirms that all such information is the sole property of Employer and that at
the termination and/or expiration of this Agreement, at Employer's written
request, Employee shall promptly return to Employer any and all such information
so requested by Employer.
The provisions of this Section 5 shall not, however, prohibit Employee
from disclosing to others or using in any manner information that:
Exh. 10.17- Page 2
(a) has been published or has become part of the public domain other
than by acts, omissions or fault of Employee;
(b) has been furnished or made known to Employee by third parties (other
than those acting directly or indirectly for or on behalf of Employee) as a
matter of legal right without restriction on its use or disclosure;
(c) was in the possession of Employee prior to obtaining such
information from Employer in connection with the performance of this Agreement;
or,
(d) is required to be disclosed by law.
6. INDEMNIFICATION. The Corporation shall to the full extent
permitted by law indemnify, defend and hold harmless Employee from and against
any and all claims. Demands, liabilities, damages, losses and expenses
(including reasonable attorney's fees, court costs and disbursements) arising
out of the performance by him of his duties hereunder except in the case of his
willful misconduct.
7. TERMINATION. This Agreement and the employment relationship
created hereby will terminate upon the occurrence of any of the following
events:
A. TERMINATION WITHOUT CAUSE BY THE COMPANY. The Company may
terminate the Employee's employment pursuant to the terms of this Agreement
without cause by written notice to the Employee. Such termination will become
effective upon the date specified in such notice, provided that such
termination, the Company shall pay the Employee all salary due for the remainder
of the employment term and all commissions earned up to the date of termination
and all stock options shall vest immediately. Such compensation shall be paid at
the same dates due to be paid as if this agreement were still in effect.
B. TERMINATION WITH CAUSE BY THE COMPANY. The Company may
terminate the Employee's employment pursuant to the terms of this Agreement at
any time for cause by giving written notice of termination, and termination will
become effective upon the giving of such notice. However, Employee will not be
deemed to have been terminated "for just cause" unless at least two-thirds of
the members of the Board of Directors of Employer so determine. Upon any such
termination for cause for any period subsequent to the effective date of
termination, the Employee shall be paid all salary and commissions earned as of
the date of termination. Such commissions shall be paid at the same date as if
the agreement were still in effect. The Employee shall have no right to stock
options under Section 4 or participate in any employee benefit programs which
may then be in effect, except as required by law.
For purposes of Section 7(B), "just cause" means (I) Employee has
willfully, intentionally and continuously failed to substantially perform his
duties as specified under this Agreement, after a demand for substantial
performance is delivered to the Employee by the Employer which specifically
identifies the manner in which Employer believes Employee has not substantially
performed his duties; (ii) Employee has willfully engaged in gross misconduct
materially and demonstrably injurious to the Employer: (iii) the Employee
commits acts of dishonesty or disloyalty to Employer or misappropriates Company
funds or otherwise defrauds the Company; (iv) the Employee materially breaches
any provision of Section 5 of this Agreement; (v) material failure by Employee
to comply
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with applicable laws or government regulations; or (vi) Employee's criminal
conviction by any state or federal court of a felony.
In the case of termination for items (I), (ii) or (iii) of the
preceding paragraph, Employee shall be given at least one (1) written notice
describing in reasonably detail the perceived deficiencies in Employee's
performance, and Employee shall be given at least thirty (30) days' opportunity
to correct such perceived deficiencies prior to any termination.
C. DEATH OR DISABILITY. This Agreement and the obligations
hereunder will terminate upon the death or disability of the Employee. For
purposes of this Section 7(C), "Disability" shall mean for a period of three
months in any twelve month period the Employee is incapable of substantially
fulfilling the duties set forth in Section 2 of this Agreement because of
physical, mental or emotional incapacity resulting from an injury, sickness or
disease. Upon any such termination upon death or disability, the Employer will
pay the Employee or his legal representative, as the case may be, his annual
salary at such time pursuant to Section 4 through the date of such termination
of employment.
D. CONTINUING EFFECT. Notwithstanding, any termination of the
Employee's employment as provided in this Section 7, the provisions of Section 5
shall remain in full force and effect.
E. CONSIDERATION. The payments (if any) required to be paid by
the Employer to Employee pursuant to Section 7 shall be in full and complete
satisfaction of any and all obligations owing to Employee under this Agreement.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
9. COSTS. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
10. NOTICES. Any notices, demands, requests, approvals and other
communications to be given under this agreement by either party to the other
will be deemed to have been duly given in writing and personally delivered or
within two (2) days if sent by mail, registered or certified, postage prepaid
with return receipt requested as follows:
If to Employer: Medical Industries of America, Inc.
0000 X. Xxxxxxxx Xxx. Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
If to Employee: Xxxxx Xxxxx
0000 X. Xxxxx Xxxx.
Xxxx Xxxxx, XX 00000-0000
Notices delivered personally will be deemed communicated as of actual receipt.
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11. ENTIRE AGREEMENT. This Agreement and the agreements
contemplated hereby constitute the entire agreement of the parties regarding the
subject matter hereof, and supersede all prior agreements and understanding,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
12. GOVERNING LAW.This Agreement and the rights and obligations
of the parties will be governed by and construed and enforced in accordance with
the substantive laws (but not the rules governing conflicts of laws) of the
State of Florida.
13. SEVERABILITY. If any provision of this Agreement otherwise is
deemed to be invalid or unenforceable or is prohibited by the laws of the state
or jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such
state or jurisdiction and shall not be part of the consideration moving from
either of the parties to the other. The remaining provisions of this Agreement
shall be valid and binding and of like effect as though such provision were not
included.
14. CAPTIONS. The captions in this Agreement are for convenience
of reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
15. GENDER AND NUMBER. When the context requires the gender of
all words used herein will include the masculine, feminine and neuter and the
number of all words will include the singular and plural.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
EMPLOYER:
Medical Industries of America
Inc.
BY:/s/ XXXXXXX X. XXXXXXX
Name:
Title:
EMPLOYEE:
/s/ XXXXX XXXXX
Xxxxx Xxxxx
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