This Agreement entered into as of January 7, 1999 by and between Re-Track USA
Inc. (hereinafter the "Company") and Xxxxx Xxxxx (hereinafter "Green").
In consideration of the mutual promises and covenants contained below, the
parties agree as follows:
1. SERVICES TO BE RENDERED.
GREEN shall assist the Company in advising the company on its financial matters,
assist the company in identifying an underwriter to perform an initial public
offering of the Company, and assist the Company in formulating any securities
offering the Company may seek commence prior to any IPO.
2. TERM AND PERFORMANCE OF GREEN.
The term of this Agreement shall be from the January 1, 1999 (hereinafter the
"effective date") to December 31, 1999, and, at the option of the Company, shall
automatically terminate thereafter unless otherwise renewed in writing sixty
days prior to end of the term.
3. FEES AND OTHER PAYMENTS.
(A) GREEN's compensation under this Agreement for the work of GREEN shall be
$_________ annually plus expenses not to exceed $________.
(B) As a signing bonus, the Company agrees to issue GREEN 200,000 shares of its
common stock within 30 days of the signing of this agreement.
4. TRADE SECRETS AND INTELLECTUAL PROPERTY:
(A) With respect to the Company's special business techniques, analyses of the
market, forms, software programs, lists of customers, and all other information
regarding manufacture or distribution of products, GREEN acknowledges that all
of such information:
1. belongs to the Company;
2. constitutes specialized and highly confidential information
not generally known in the industry; and
3. constitutes trade secrets of the Company
4. except:
a) Where the disclosed information is generally known to
the public.
b) Where the disclosed information becomes generally
known to the public after the disclosure through no
act or omission of the recipient.
c) Where the information was previously known by the
parties receiving the information.
d) Where the information is disclosed by persons with a
bona fide right to possess Confidential Information
and to disclose the information to recipient.
e) Where required by law to disclose the Confidential
Information.
Accordingly, GREEN recognizes and acknowledges that it is essential to the
Company to protect the confidentiality of such trade information.
(B) GREEN, his employees, agents or representatives, thus agrees to act as a
trustee of such information and of any other confidential information they
acquire in connection with their association with the Company. Further, as an
inducement to the Company to retain him under this agreement, they will hold
such information in trust and confidence for the use and benefit solely of the
Company.
(C) During the term hereof, and for thirty-six (36) months thereafter, GREEN,
his employees, agents or representatives, shall not disclose such information to
any person, firm, association, or other entity for any reason or purpose
whatsoever, unless such information has already become common knowledge or
unless GREEN is required to disclose it by judicial process.
(D) GREEN acknowledges that in the event a court of competent jurisdiction
determines that GREEN has breached the covenants made herein, the Company may
move a court of competent jurisdiction for injunctive relief without any
requirement of posting of an undertaking.
5. AGREEMENT NOT TO COMPETE.
The Company has retained GREEN only for the purposes set forth in this
Agreement, and his relationship to the Company is that of an independent
contractor. During the term hereof, GREEN, his employees, agents or
representatives, shall not, directly or indirectly, enter into, or in any manner
take part in, any business, profession, or other endeavor which competes with
the Company in the sale of safety syringe products and syringe technology or any
improvements, enhancements, modifications or line extensions thereto. GREEN
shall not so compete either as an employee, agent, independent contractor,
owner, or otherwise.
6. RESTRICTIVE COVENANT:
(A) For a period of one (1) year after the expiration or termination of this
Agreement for any reason, whether with or without cause, or for a period of time
equal to the length of GREEN's retention by the Company if such tenure has been
for less than one (1) year, GREEN will not, directly or indirectly, contact any
then-existing customer of the Company on behalf of any other person, firm,
company, or corporation for the purpose of assisting such company with
management or marketing relating to any product which may compete with any
syringe product of the Company.
(B) The parties acknowledge that they have attempted to limit GREEN's right to
compete only to the extent necessary to protect the Company from unfair
competition.
(C) GREEN further acknowledges that: (1) in the event the consultancy with the
Company terminates for any reason, they will be able to earn a livelihood
without violating the foregoing restrictions; and (2) that his ability to earn a
livelihood without violating such restrictions is a material condition to his
retention by the Company.
7. WARRANTY AGAINST PRIOR EXISTING RESTRICTIONS.
GREEN represents and warrants to the Company that he is not a party to any
agreement containing a non-competition clause or other restriction with respect
to: (A) the services required to perform hereunder; or (B) the use or disclosure
of any information directly or indirectly related to the Company's business, or
to the services required to render pursuant hereto.
8. PROHIBITION AGAINST ASSIGNMENT.
GREEN agrees, for themselves and on behalf of his successors, heirs, executors,
administrators, and any person or persons claiming under him by virtue hereof,
that this Agreement and the rights, interests, and benefits hereunder cannot be
assigned, transferred, pledged, or hypothecated in any way and shall not be
subject to execution, attachment, or similar process. Any such attempt to do so,
contrary to the terms hereof, shall be null and void and shall relieve the
Company of any and all obligations or liability hereunder.
9. SEVERABILITY.
If any provision, paragraph, or subparagraph of this Agreement is adjudged by
any court of law to be void or unenforceable, in whole or in part, such
adjudication shall not be deemed to affect the validity of the remainder of the
Agreement, including any other provision, paragraph, or subparagraph. Each
provision, paragraph, and subparagraph of this Agreement is declared to be
separable from every other provision, paragraph, and subparagraph and
constitutes a separate and distinct covenant.
10. TERMINATION OF AGREEMENT.
This Agreement may be terminated by either party hereto upon the giving of
thirty (30) days written notice, sent by registered or certified mail, return
receipt requested, to the place designated as provided for in this agreement. In
the event this agreement is terminated, GREEN shall only be entitled to a pro
rata portion of the compensation under this agreement., except that the stock is
not considered as compensation and GREEN shall be entitled to the total stock as
outlined above.
11. MODIFICATION AND WAIVER.
No waiver or modification of this Agreement shall be valid unless it is in
writing and signed by the Company and GREEN. The waiver by either party of a
breach of any provision of this Agreement shall not operate as, or be construed
as, a waiver of any subsequent breach.
12. BINDING EFFECT
This Agreement shall be binding upon, and inure to the benefit of, the Company
and its successors, assigns, heirs, legal representatives, executors, and
administrators.
13. ATTORNEYS' FEES.
If either party hereto shall, in the determination of a court of competent
jurisdiction, breach any of the terms hereof, such party shall pay to the
non-defaulting party all of the non-defaulting party's costs and expenses,
including attorneys' fees, incurred by such party in enforcing the terms of this
Agreement.
14. COMPLETE UNDERSTANDING.
This Agreement constitutes the entire Agreement between the parties with respect
to the subject matter hereof. This Agreement supersedes any and all other
Agreements, whether oral or in writing, between the parties with respect to the
subject matter hereof.
15. GOVERNING LAW.
This Agreement shall be subject to, and governed by, the laws of the State of
New York. For all matters relating to a dispute of this contract or an
interpretation of any provision herein, the venue for shall be Rockland County,
New York.
16. HEADINGS.
The headings in this Agreement are inserted for convenience only and shall not
be considered in interpreting the provisions hereof.
17. NOTICE.
All notices shall be given in writing and sent by registered or certified mail,
return receipt requested, and shall be addressed to:
Re-Track USA, Inc.
do Xxxxxx Xxxxx, President
00 Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000;
and in the case of GREEN --
Xxxxx Xxxxx.
____________________
____________________
18. REMEDIES.
(A) The Company shall not be limited in remedy, whether in law or equity, in its
enforcement of any provision of this Agreement or in recovery for damages for
any breach thereof. Further, GREEN acknowledges that: (1) compliance with
Paragraphs 5 through 8 herein is necessary to protect the Company's business and
good will; (2) a breach of those Paragraphs will irreparably and continually
damage the Company; and (3) an award of money damages will not be adequate to
remedy such harm.
(B) Consequently, GREEN agrees that, in the opinion of a court of competent
jurisdiction, he breaches or threatens to breach any of these covenants, the
Company shall be entitled to both: (1) a preliminary or permanent injunction
without the necessity of posting of an undertaking or bond in order to prevent
the continuation of such harm; and (2) money damages, insofar as they can be
determined, including, without limitation, all reasonable costs and attorneys'
fees incurred by the Company in enforcing the provisions of this Agreement.
Nothing in this Agreement, however, shall prohibit The Company from also
pursuing any other remedy.
19. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 7th day of
January, 1999.
XXXXX XXXXX: The Company:
Re-Track USA, Inc.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------- -----------------------------
Xxxxx Xxxxx Xxxxxx Xxxxxxx, Secretary
APPENDIX A
IRREVOCABLE PROXY
Pursuant to an Agreement dated 7th, January 1999 between Xxxxx Xxxxx
("Green"), and Re-Track USA, Inc. ("Re-Track") the undersigned hereby
irrevocably appoints Xxxxxx Xxxxx (Xxxxx), his nominee or nominees with full
power of substitution, as proxy for the undersigned, with respect to 200,000
shares of common stock of Re-Track USA, Inc., transferred pursuant to the above
written agreement dated 7th, January 1999 for a period four (4) years from the
date of the above referenced agreement and or until Re-Track USA, Inc.
successfully completes an Initial Public Offering of its securities pursuant to
an SB2 or S1 registration statement filed with the Securities and Exchange
Commission, irrevocable proxy to vote at any meeting of the shareholders of
Re-Track USA, Inc., or to execute any and all consents with respect to, any and
all matters upon which action is proposed to be taken by the shareholders of
Re-Track USA, Inc., as Xxxxx in his sole discretion may from time to time
determine.
Dated 7th January 1999
/s/ Xxxxx Xxxxx
---------------------------
Mr. Xxxxx Xxxxx
