Employment Agreement - Ion Laser Technology Inc. and David Bruhin
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 1, 1998, by and between ION
LASER TECHNOLOGY, INC. (the "COMPANY"), a Utah corporation, and DAVID BRUHIN
(the "EMPLOYEE").
W I T N E S S E T H:
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WHEREAS, upon the terms and subject to the conditions of this
Agreement, the Company desires to employ the Employee and the Employee desires
to accept employment by the Company;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Employment. Upon the terms and subject to the conditions of this
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Agreement, the Company hereby employs the Employee and the Employee hereby
accepts employment with the Company in the capacities hereinafter set forth.
2. Term of Employment. Unless earlier terminated pursuant to
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Section 6 below, the term (the "TERM") of this Agreement shall commence on the
date hereof and shall continue in effect through May 31, 2000; provided,
however, that commencing on May 31 and each anniversary thereof the term of this
Agreement shall be extended for an additional year from May 31, 2000 or such
anniversary as the case may be unless not later than 30 days prior to such
automatic execution date the Company or the Employee shall have given notice
that such party does not want to extend the term of this Agreement in which case
the term of this Agreement shall end on May 31, 2000 or, if later, on the date
to which the term of this Agreement was last automatically extended.
3. Duties; Extent of Services.
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(a) Duties. During the Term, the Employee shall serve in such
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capacity and may be reasonably designated by the Board of Directors, initially
as Vice President of Marketing, Business Development and Planning, and shall
perform the duties, undertake the responsibilities and exercise the authority
reasonably required of such an employee of the Company, and shall have such
other powers and perform such additional executive duties as may be assigned to
him from time to time by the Chief Executive Officer of the Company (the "CEO").
The Employee shall report to and carry out the lawful directions of the CEO.
(b) Extent of Services. Except for illness and permitted vacation
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periods, during the Term the Employee shall (i) devote his full time and
attention during normal business hours to the businesses of the Company and its
subsidiaries and Affiliates (as defined herein); (ii) use his best efforts to
promote the interests of the Company and its subsidiaries and Affiliates; (iii)
discharge such executive and administrative duties not inconsistent with his
position as may be assigned to him by the Board; and (iv) serve, without
additional compensation, as a director or officer of any subsidiary of the
Company if elected as such.
<PAGE>
4. Compensation Benefits.
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(a) Salary. In consideration of the services rendered by the Employee
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hereunder and provided that the Employee has substantially performed all of his
obligations provided for herein, the Company will pay to the Employee a salary
(the "SALARY") at the rate of $10,000 per month during the first year of the
Term and at the rate of $5,000 per month during the second year of the Term and
every year thereafter if the Term of this Agreement is extended. The Salary
shall be paid in accordance with the Company's normal payroll practice.
(b) Bonus. The Company also will pay to the Employee a bonus (the
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"BONUS") based on a percentage of sales of take home and whitening gels,
including light activated and other gels, isolation materials, syringes and
upscale maintenance products (all such gels, isolation materials, syringes and
upscale maintenance products being hereinafter referred to as the "PRODUCTS") of
the Company for each 12-month period beginning June 1, 1998 in accordance with
the following:
First 12-Month Period
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Base Sales
Between 0 and $999,000 0%
Between $1,000,000 and $2,999,999 2%
Between $3,000,000 and $7,999,999 3%
Between $8,000,000 and $9,999,999 2%
Over $10,000,000 1%
Second 12-Month Period And Each 12-Month Period Thereafter
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Base Sales
Between 0 and $999,000 0%
Between $1,000,000 and $2,999,999 5%
Between $3,000,000 and $7,999,999 3%
Between $8,000,000 and $9,999,999 2%
Over $10,000,000 1%
<PAGE>
If the Company completes an acquisition during the Term, the base annual sales
amounts set forth above for each 12-month period after the 12-month period in
which such acquisition occurs shall be increased by an amount equal to the
annual sales of the Products by the target company during the 12 months prior to
its acquisition by the Company (the "TARGET COMPANY'S LTM SALES") and the base
sales amount set forth above for the 12-month period in which the acquisition
occurs shall be increased by an amount equal to the Target Company's LTM Sales
multiplied by a fraction the numerator of which shall be the number of months
during such 12-month period after the date of acquisition and the denominator of
which is 12. The Company will pay the Bonus to the Employee within 45 days of
the end of each 12-month period.
(c) During the Term, the Employee shall be entitled (i) to vacation
time in accordance with the Company's policy from time to time in effect; (ii)
to participate in all employee insurance and other fringe benefit programs,
including, without limitation, life, health, dental and accident insurance plans
and long term disability now or hereafter maintained by the Company for senior
executive or other salaried personnel for which the Employee is eligible; and
(iii) to participate in a pension plan with terms similar to those applicable to
executives of the Company.
5. Options. In consideration for entering into this Agreement, the
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Employee shall be granted options to purchase up to 50,000 shares of the
Company's common stock at $1.75 per share pursuant to a separate option
agreement. If at or prior to the end of the second year of the Term, sales of
the Products (excluding the amount, if any, by which the base annual sales
amount in Section 4(b) was increased for such 12-month period pursuant to the
last paragraph of Section 4(b)) are at least $3,000,000 for a period of 12
consecutive months beginning on and after the date hereof, then with respect to
the first such 12-month period only, Employee will be granted by the Company
options to purchase 50,000 shares of the Company's Common Stock at $1.75 per
share pursuant to a separate option agreement. If at or prior to the end of the
fifth year of the Term, if extended, the sales of the Products (excluding the
amount, if any, by which the base annual sales amount in Section 4(b) was
increased for such 12-month period pursuant to the last paragraph of Section
4(b)) are at least $10,000,000 for a period of 12 consecutive months beginning
on and after the date hereof, then with respect to the first such 12-month
period only, Employee will be granted by the Company options to purchase 50,000
shares of the Company's Common Stock at $1.75 per share pursuant to another
separate option agreement. An example of the manner in which the options
referred to in this Section 5 are to be earned is set forth in EXHIBIT 5A.
<PAGE>
6. Termination Provisions.
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(a) Termination for Cause. The Board may terminate the Employee's
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employment hereunder for Cause, as hereinafter defined, immediately upon written
notice to the Employee. For purposes of this Agreement, "CAUSE" shall mean (i)
embezzlement, theft or other misappropriation of any property of the Company or
any Affiliate, (ii) gross or willful misconduct resulting in substantial loss to
the Company or any Affiliate or substantial damage to the reputation of the
Company or any Affiliate, (iii) any act involving moral turpitude which results
in a conviction for a felony involving moral turpitude, fraud or
misrepresentation, (iv) gross neglect of his assigned duties to the Company or
any Affiliate, (v) gross breach of his fiduciary obligations to the Company or
any Affiliate, or (vi) any chemical dependence which materially affects the
performance of his duties and responsibilities to the Company or any Affiliate;
provided that in the case of the misconduct set forth in clauses (iv)
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and (vi) above, such misconduct shall continue for a period of 30 days following
written notice thereof by the Company to the Employee. During the Term, the
Employee shall be entitled to only one such notice and right to cure for any
single act or event. If the Employee's employment is terminated for Cause, the
Employee shall be entitled to receive only the unpaid portion of the Salary then
in effect which has accrued to the date of termination and any other payments
generally available to departing employees of the Company (such as unused
vacation and personal days). The Employee shall not be entitled to receive any
severance payment with respect to such termination. For the purpose of this
Agreement, the term "AFFILIATE" means, with respect to the Company, any person
or entity which, directly or indirectly, controls, is controlled by or under
common control with the Company, with "CONTROL" to be based on the ownership of
50% or more of the voting securities (or their equivalent) of a particular
entity.
(b) Termination By Reason of Permanent Disability. If at any time
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during the Term the Employee has been unable, as a result of physical or mental
illness or incapacity, to perform his duties hereunder for a period of four
consecutive months or for an aggregate of more than six months in any twelve
month period (a "PERMANENT DISABILITY"), the Employee's employment hereunder may
be terminated by the Board upon thirty days' written notice to the Employee. If
the Employee's employment is terminated by reason of Permanent Disability, the
Employee shall be entitled to receive only the unpaid portion of the Salary then
in effect which has accrued to the date of termination, plus any other payments
generally available to departing employees of the Company (such as unused
vacation and personal days), plus an amount equal to three months of Employee's
Salary. Such amount shall be paid within thirty days after such termination.
(c) Termination By Reason of Death. The Employee's employment
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hereunder shall automatically terminate on the date of his death. If the
Employee's employment is so terminated by his death, the Company shall pay to
the Employee's estate in addition to the unpaid portion of the Salary then in
effect through date of Employee's death plus an amount equal to three months of
Employee's Salary, plus a pro rata portion of the Bonus which has accrued to the
date of Employee's death if such death occurs within the last six months of a
consecutive 12-month period during the Term, and plus any other payments
generally available to departing employees of the Company (such as unused
vacation and personal days). Such amount shall be paid within thirty days after
the date of his death if a personal representative has been appointed by the end
of such thirty day period or, if a personal representative has not been
appointed by the end of such thirty day period, promptly after a personal
representative has been appointed.
<PAGE>
(d) Termination Without Cause. The Board may terminate the Employee's
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employment hereunder at any time for any reason without Cause in which case the
Employee shall be entitled to receive an amount (the "SEVERANCE AMOUNT") equal
to six months of Employee's Salary and a pro rata portion of the Bonus which has
accrued to the date of termination if such termination occurs within the last
six months of a consecutive 12-month period during the Term. The Severance
Amount shall be in lieu of any other severance payment to which Employee may be
otherwise entitled under any other severance plan maintained by the Company.
The Severance Amount shall be paid within 30 days of such termination. In
addition, the Employee shall be entitled to receive any other payments generally
available to departing employees of the Company (such as unused vacation and
personal days).
7. Covenants of the Employee.
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(a) Non-Competition. Until the later of (X) the first anniversary of
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the date of the termination of the Employee's employment hereunder and (Y) the
end of the then current Term in effect on the date of such termination, the
Employee shall not, directly or indirectly, engage in any business (a
"RESTRICTED BUSINESS") which manufactures or distributes a dental product line
similar to that of the Company's or be associated with any entity engaged in a
Restricted Business, whether as a director, officer, employee, agent,
consultant, partner, owner, independent contractor or otherwise.
(b) Non-Solicitation of Employees of the Employer. Until the later of
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(X) the first anniversary of the date of the termination of the employment of
the Employee hereunder and (Y) the end of the then current Term in effect on the
date of such termination, the Employee shall not, and shall cause each business
or entity with which he shall become associated in any capacity not to, solicit
for employment or employ any person who is then, or who was at any time after
the date four months prior to the date of such termination, employed in a
professional or managerial position by the Company, its subsidiaries or
Affiliates.
(c) Confidentiality. The Employee agrees and acknowledges that the
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Confidential Information (as hereinafter defined) of the Company and its
subsidiaries and affiliates, is valuable, special and unique to their business;
that such business depends on such Confidential Information; and that the
Company wishes to protect such Confidential Information by keeping it
confidential for the use and benefit of the Company and its subsidiaries and
Affiliates. Based on the foregoing, the Employee agrees to undertake the
following obligations with respect to such Confidential Information:
(i) the Employee agrees to keep any and all Confidential
Information in trust for the use and benefit of the Company and its
subsidiaries and Affiliates;
(ii) the Employee agrees that, except as required by applicable
law or as authorized in writing by the Board, he will not at any time
during or after the termination of his employment hereunder, disclose,
directly or indirectly, any Confidential Information of the Company or any
of its subsidiaries or Affiliates;
(iii) the Employee agrees to take all reasonable steps necessary,
or reasonably requested by the Company, to ensure that all Confidential
Information is kept confidential for the use and benefit of the Company and
its subsidiaries and Affiliates; and
<PAGE>
(iv) the Employee agrees that, upon termination of his
employment hereunder or at any other time the Company may in writing so
request, he will promptly deliver to the Company all materials constituting
Confidential Information (including all copies thereof) that are in his
possession or under his control. The Employee further agrees, that if
requested by the Company, to return any Confidential Information pursuant
to this subparagraph (iv), he will not make or retain any copy or extract
from such materials.
For purposes of paragraph (c) of this Section 7, "CONFIDENTIAL
INFORMATION" means any and all information developed by or for the Company or
any of its subsidiaries or Affiliates of which the Employee gains or has
acquired knowledge during or prior to the Term by reason of his employment with
the Company that is (A) not generally known in any industry in which the Company
or any of its subsidiaries or Affiliates is or may become engaged or (B) not
publicly available. Confidential Information includes, but is not limited to,
any and all information developed by or for the Company or any of its
subsidiaries or Affiliates concerning plans, marketing and sales methods,
customer lists, materials, processes, business forms, procedures, devices, plans
for development of products, services or expansion into new areas or markets,
internal operations, and any trade secrets and proprietary information of any
type owned by the Company or any of its subsidiaries or Affiliates, together
with all written, graphic and other materials relating to all or any part of the
same.
8. Improvements and Inventions.
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(a) Disclosure of All Improvements and Inventions. All designs,
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discoveries, ideas and inventions, whether or not patentable, copyrightable or
protectable as trade secrets, and all innovations, improvements, variations,
modifications, and substitutions in each case to the extent relating to the
dental business, including the process of cleaning or treating human teeth with
a light source or relating to "curing" materials used in the treatment of human
teeth, whether or not patentable, copyrightable or protectable as trade secrets,
including all patent and patent application rights and copyright and copyright
application rights relating thereto which the Employee may make or conceive
jointly or commonly with others during the Term in the course of performing his
duties for the Company based, in whole or in part, upon the Confidential
Information, or resulting, in whole or in part, from any other resources,
supplies, facilities or equipment or business, technical or financial
information or materials provided by the Company are hereafter collectively
referred to as "INVENTIONS". The Employee shall promptly disclose all Inventions
to the Company.
(b) Assignment of Inventions.
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(i) In consideration of the compensation payable to the Employee
under Section 4 hereof, the Employee agrees that all Inventions described
in paragraph (a) above shall be the sole and exclusive property of the
Company and available to the Company at all times. At the request of the
Company, the Employee agrees to sell, assign, transfer and set over to the
Company, or its nominee, without royalty or any additional consideration,
his entire right, title and interest in, to and under any and all
Inventions.
(ii) The Employee agrees to execute, both during and after the
Term, such documents as the Company shall deem necessary or desirable for
the transfer of such rights, titles and interests
<PAGE>
described in clause (i) above to it or its designee and for the
preparation, filing, prosecution and procuring of trademark, copyright
and/or patent applications and/or trademarks, copyrights and letters patent
in any country of the world and for the transfer of interests therein,
including the execution of original, divisional, continuing and reissue
applications, preliminary statements, affidavits, and concessions.
(iii) The Employee further agrees that if it is legally or
otherwise impossible for the Company or its designees or assignees to apply
for any such trademark, copyright or letters patent, or if any court or
other body with appropriate jurisdiction finds the transfer of trademark,
copyright or patent rights and/or other rights in any Invention to the
Company hereunder to be unenforceable for any reason, then, in any such
case, the Employee in lieu of the Company shall pursue such trademark,
copyright or letter patent in his own name and shall grant the Company the
first option to an exclusive license, at a de minimis royalty to be
negotiated in good faith based on the respective parties' contributions and
relevant industry standards, to utilize the trademark or copyright or to
manufacture, utilize and/or sell Inventions which constitute and/or contain
such patent, trade secret, know-how and/or other proprietary information.
If such a license is not created, then the Company shall be able to use
such Invention or substance on a non-exclusive, royalty-free basis.
(iv) The Employee agrees to give testimony in any court action or
administrative proceeding with respect to any matters mentioned above.
9. Reimbursement for Assignment of Inventions. The Company shall
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reimburse the Employee for all reasonable and properly documented out-of-pocket
expenses actually incurred by him in the performance of any of the terms of
Section 8 hereof, including the preparation of documents, drawings, models and
plans, the transfer and assignment of Inventions and any travel required to
fulfill any obligation thereunder.
10. Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed to have been given when delivered by hand, mailed
by first-class registered or certified mail, postage prepaid and return receipt
requested, or delivered by overnight courier addressed as follows:
(i) If to the Company:
ION Laser Technology, Inc.
3828 South Main Street
Salt Lake City, Utah 84121
Telephone No.: 801-262-5555
Facsimile No.: 801-262-5770
Attention: President
<PAGE>
with a copy to:
Durham, Evans, Jones & Pinegar, P.C.
Key Bank Towers, Suite 850
50 South Main Street
Salt Lake City, Utah 84144
Telephone No.: 801-538-2424
Facsimile No.: 801-538-2425
Attention: Jeffrey M. Jones, Esq.
with a copy to:
Richards & O'Neil, LLP
885 Third Avenue
New York, New York 10022-4873
Telephone No.: 212-207-1200
Facsimile No.: 212-750-9022
Attention: Craigh Leonard, Esq.
(ii) If to the Employee:
David Bruhin
Swarthmore Consulting Group
601 North Chester Road
Swarthmore, PA 19081
Telephone No.: 610-543-0523
Facsimile No.: 610-604-0843
or, in each case, at such other address as may from time to time be specified to
the other party in a notice similarly given.
11. Governing Law; Jurisdiction. The validity, interpretation,
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construction and performance of this Agreement shall be governed by the laws of
the State of New York applicable to contracts executed and to be performed
entirely within said State. Any judicial proceeding brought against any of the
parties to this Agreement or any dispute arising out of this Agreement or any
matter related hereto may be brought in the courts of the State of New York or
in the United States District Court for the Southern District of New York, and,
by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the jurisdiction of said courts, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement. The
foregoing consent to jurisdiction shall not be deemed to confer rights on any
person other than the respective parties to this Agreement.
12. Expenses. If a dispute arises out of or related to this
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Agreement, if either party to the Agreement brings legal action to enforce the
terms of the Agreement, the party who prevails in such legal action, whether
plaintiff or defendant, in addition to the remedy or relief obtained in such
legal action, shall be entitled to recover his or its expenses incurred in such
legal action, including without limitation, court costs and attorneys fees. A
party shall be deemed to have prevailed in such a legal action if such action is
concluded pursuant to a court order or final judgment in favor of such party
which is not subject to appeal, a settlement agreement or dismissal of the
principal claims.
13. Entire Agreement. This Agreement contains the entire agreement of
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the parties and their Affiliates relating to the subject matter hereof and
supersedes all prior agreements, representations, warranties and understandings,
written or oral, with respect thereto.
<PAGE>
14. Severability. If any term or provision of this Agreement or the
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application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons, property or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall remain valid and enforceable to
the fullest extent permitted by law.
15. Remedies.
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(a) Injunctive Relief. The Employee acknowledges and agrees that the
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covenants and obligations of the Employee contained in subsections (a), (b) and
(c) of Section 7 hereof relate to special, unique and extraordinary matters and
are reasonable and necessary to protect the legitimate interests of the Company
and its subsidiaries and Affiliates and that a breach of any of the terms of
such covenants and obligations will cause the Company irreparable injury for
which adequate remedies at law are not available. Therefore the Employee agrees
that the Company shall be entitled to an injunction, restraining order, or other
equitable relief from any court of competent jurisdiction, restraining the
Employee from any such breach.
(b) Remedies Cumulative. The Company's rights and remedies under this
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Section 15 are cumulative and are in addition to any other rights and remedies
the Company may have at law or in equity.
16. Withholding Taxes. The Company may deduct any federal, state or
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local withholding or other taxes from any payments to be made by the Company
hereunder in such amounts which the Company reasonably determine are required to
deduct under applicable law.
17. Amendments, Miscellaneous, Etc. Neither this Agreement nor any
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term hereof may be changed, waived, discharged or terminated except by an
instrument in writing signed by the party against which such change, waiver,
discharge or termination is sought to be enforced. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
and all of which together shall constitute one and the same instrument. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
18. Survival. The covenants set forth in Sections 7 and 8 of this
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Agreement shall survive and shall continue to be binding upon the parties
notwithstanding the termination of this Agreement for any reason whatsoever.
The covenants set forth in Sections 7 and 8 of this Agreement shall be deemed
and construed as separate agreements independent of any other provision of this
Agreement. The existence of any claim or cause of action by the Employee
against Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company of any or all covenants.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
ION LASER TECHNOLOGY, INC.
By:/s/ Richard V. Trefz
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Name:
Title:
/s/ David Bruhin
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DAVID BRUHIN
<PAGE>
EXHIBIT 5A
Assume the Term begins on June 1, 1998 and the sales of the Products
are as follows for each of the following 6-month periods:
6-Month Period Sales
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June 1, 1998 - November 30, 1998.. 1,000,000
November 30, 1998 - June 1, 1999.. 1,500,000
June 1, 1999 - November 30, 1999.. 1,750,000
November 30, 1999 - June 1, 2000.. 2,000,000
June 1, 2000 - November 30, 2000.. 5,000,000
November 30, 2000 - June 1, 2001.. 4,000,000
June 1, 2001 - November 30, 2001.. 6,000,000
November 30, 2001 - June 1, 2002.. 6,000,000
1. Bruhin is entitled to 50,000 options on November 30, 1999 because
sales of Products for the 12-month period from November 30, 1998 to November 30,
1999 total $3,250,000. Even though sales in each 12-month period succeeding
November 30, 1999 exceed $3,000,000, Bruhin is not entitled to another grant of
options on account of the $3,000,000 benchmark.
2. In addition to the 50,000 options to which Bruhin is entitled on
November 30, 1999, Bruhin is entitled to another 50,000 options on November 30,
2001 because sales of Products for the 12-month period from November 30, 2000 to
November 30, 2001 are at least $10,000,000. Even though sales for the period
June 1, 2001 through June 1, 2002 are also at least $10,000,000, Bruhin is not
entitled to another grant of options on account of the $10,000,000 benchmark.