Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Pre-Effective Amendment to Registration Statement 41 161K
for Securities Offered Pursuant to a
Transaction
2: EX-5.2 Opinion re: Legality 1 9K
10: EX-23.10 Consent of Experts or Counsel 13 47K
3: EX-23.2 Consent of Experts or Counsel 1 7K
4: EX-23.3 Consent of Experts or Counsel 1 6K
5: EX-23.5 Consent of Experts or Counsel 2 11K
6: EX-23.6 Consent of Experts or Counsel 2 8K
7: EX-23.7 Consent of Experts or Counsel 4 19K
8: EX-23.8 Consent of Experts or Counsel 3 13K
9: EX-23.9 Consent of Experts or Counsel 14 35K
EXHIBIT 23.10
EMPLOYMENT AGREEMENT
BY AND BETWEEN
MEDICAL INDUSTRIES OF AMERICA, INC.
AND
E. NICHOLAS DAVIS, III
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective on March 15th,
1998 by and between Medical Industries of America, Inc., a Florida corporation
(the "Company"), and E. Nicholas Davis, ill ("Employee") and shall supersede
that Employment Agreement effective November 1, 1997 by and between the
Company's wholly owned subsidiary , PRN of North Carolina, Inc. ("PRN") and
Employee (the "PRN Agreement").
WHEREAS, PRN and Employee entered into the PRN Agreement; and
WHEREAS, Company desires to utilize the services of Employee relative to
other aspects of its business and Employee is desirous of performing such
services as directed by the Company's CEO and President; and
WHEREAS, PRN and Employee have agreed to terminate the PRN Agreement
contemporaneous with the execution of this Agreement;
WHEREAS, PRN, the Company and Employee desire to enter into this Agreement
to memorialize their oral agreements, to assure the Company of the services of
Employee for the benefit of the Company and to set forth the respective rights
and duties of the parties hereto.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
terms and conditions set forth herein, PRN, the Company and Employee agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT. Upon the execution of this Agreement by all parties, PRN
and the Employee hereby terminate the PRN Agreement without any further
obligation on the part of either party except that PRN shall be responsible to
Employee for all accrued but unpaid compensation. Contemporaneous with such
termination (the "Commencement Date"), Company employs Employee, and Employee
accepts such employment, all upon the terms and conditions set forth herein.
1.2 SERVICES. During the Term (as hereinafter defined) hereof, Employee
agrees to perform diligently and in good faith such duties and services for the
Company as directed by the President and CEO of the Company, Employee agrees to
devote all reasonable efforts and substantially all of his full business time,
energies and abilities to .the services to be performed hereunder and for the
exclusive benefit of the Company, Employee shall be vested with such authority
as delegated by the President or CEO of the Company.
1.3 LOCATION. The principal place of employment and the location of
Employee's principal office shall be at 1903 S. Congress Ave., #400, Boynton
Beach, Florida (the "Office"); provided, however, Employee shall, when requested
by the CEO or President, or may. if he determines it to be reasonably necessary
, temporarily perform outside of the Office such services as are reasonably
required for the proper execution of his duties under this Agreement.
1.4 REPRESENTATIONS. Each party represents and warrants to the other that
he/it has full power and authority to enter into and perform this Agreement and
that his/its execution and performance of this Agreement shall not constitute a
default under or breach of any of the terms of any agreement to which he/it is a
party or under which he/it is bound, Other than as provided herein. each parry
represents that no consent or approval of any third party is required for
his/its execution, delivery and performance of this Agreement or that all
consents or approvals of any third party required for his/its execution,
delivery and performance of this Agreement have been obtained.
ARTICLE II
TERM
2.1 TERM. The term of Employee's employment hereunder (the "Term") shall
commence as of the Commencement Date and shall continue through the third
anniversary of the Commencement Date (the "Scheduled Termination Date"} unless
renewed or earlier terminated pursuant to the provisions of this Agreement. This
Agreement shall be automatically renewed for successive two (2) year terms
unless the party electing not to renew provides the other party with written
notice of such election at least ninety (90) days prior to the Scheduled
Termination Date or the last day of the renewal term, as applicable.
ARTICLE III
COMPENSATION
3.1 BASE SALARY. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary of One Hundred Twenty Five Thousand Dollars ($125,000)
commencing March 15th, 1998. Such base salary shall accrue monthly (prorated for
periods less than a month) and shall be paid
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every two (2) weeks, in arrears. The balance of the deferred and unpaid salary
due Employee from PRN (i.e., the difference between Employee's negotiated salary
of $108,000 and the amounts actually paid prorated for the period November 1,
1997 through March 14d1, 1998) shall be paid on or before December 31St, 1998.
3.2 INCENTIVE COMPENSATION. The Company shall also pay Employee during the
term of this Agreement a fair and reasonable amount as incentive compensation as
determined by the compensation committee of the Company including, without
limitation, bonuses and the grant of favorable stock rights in such Company
subsidiaries so as to allow Employee to participate in any spin-off or public
offering of such subsidiaries securities.
3.3 STOCK OPTIONS. In continuation of the pertinent provisions of the PRN
Agreement relative to stock options, as modified herein, and subject to the
provisions of Section 3.4, the Company grants to Employee options to acquire two
hundred thousand (200,000) shares of the Company's voting common stock (the
"Option Shares"), subject to the following terms and conditions:
(a) The option price per Option Share will be equal to the fair
market value of a share of the Company's common stock on the dare of grant
which, for purposes of this Section 3.3, shall be one dollar and 25/100
($1.25) per share.
(b) The Option Shares shall vest pro rata at the end of each of the
first two (2) years of this Agreement upon the approval of MIOA's
compensation committee.
(c) The right to exercise Option Shares shall expire (unless
previously exercised in accordance with the terms of this Section 3.3), on
December 31, 2005. Vested Option Shares shall be exercisable by Employee,
in whole or in part, on or before such expiration by payment in full, in
cash, by check or any other consideration permitted by applicable law, to
the Company of the aggregate option price for the Option Shares so
acquired.
(d) All unvested Option Shares shall be subject to immediate
forfeiture upon Termination For Cause (as such term is defined in Section
7.1 hereof).
(e) During the Term hereof and for a period of three (3) years
thereafter, Employee shall have piggy-back registration rights relative to
his MIOA's common stock and Option Shares.
3.4 EFFECT OF CHANGES IN CAPITALIZATION.
(a) If the number of outstanding shares of common stock of the
Company is increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company by
reason of any merger, share exchange,
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consolidation, reorganization, recapitalization, reclassification, stock
split, combination of shares, exchange of shares, stock dividend or other
distribution payable in capital stock, or other increase or decrease in
such shares effected without receipt of consideration by the Company, a
proportionate and appropriate adjustment shall be made by the Company with
respect to the number Option Shares then outstanding under Section 3.3, so
that the proportionate interest of Employee immediately following such
event shall, to the extent practicable, be the same as immediately prior
to such event. Any such adjustment in the number of Option Shares shall
not change the aggregate option price payable with respect to the then
unexercised Option Shares, but shall include a corresponding proportionate
adjustment in the option price per Option Share.
(b) Adjustments under this Section 3.4 relating to Option Shares or
securities of the Company shall be made by the Company's Board of
Directors. No fractional shares or units of other securities shall be
issued pursuant to any such adjustment, and any fractions resulting from
any such adjustment shall be eliminated in each case by rounding upward to
the nearest whole share or unit.
3.5 BENEFITS. Employee shall be entitled, during the Term hereof, to the
same medical. hospital, pension, profit sharing, dental, disability and life
insurance coverage and benefits as are available to the Company's most senior
officers, a description of which is attached hereto as Schedule 3.5. together
with the following additional benefits:
(a) An automobile allowance of four hundred dollars ($400.00) per
month; and
(b) The Company's normal vacation allowance for all employees who
are executive officers of the Company, but not more than three (3) weeks
annually.
3.6 WITHHOLDING. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article ill, which are
subject to withholding for such federal, state and local taxes as the Company,
in its reasonable judgment, determines to be required pursuant to any applicable
law, rule or regulation wi11 be subject to the applicable withholding
provisions.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 Working Facilities and Expenses. Employee shall be furnished with an
office at the principal executive offices of the Company, or at such other
location as agreed to by Employee and the Company, and other working facilities
and secretarial and other assistance suitable to his position and reasonably
required for the performance of his duties hereunder. The
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Company shall reimburse Employee for all of Employee I s reasonable expenses
incurred while employed and performing his duties under and in accordance with
the terms and conditions of this Agreement, subject to Employee's full and
appropriate documentation, including, without limitation, receipts for all such
expenses in the manner required pursuant to the Company's policies and
procedures and the Internal Revenue Code of 1986, as amended (the "Code") and
applicable regulations as are in effect from time to time.
4.2 INSURANCE. The Company may secure in its own name or otherwise, and at
its own expense, life, disability and other insurance covering Employee or
Employee and others, and Employee shall not have any right, title or interest in
or to such insurance other than r as expressly provided herein. Employee agrees
to assist the Company in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such I physicians(s)
as the Company or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance.
ARTICLE V
ILLNESS OR INCAPACITY
5.1 RIGHT TO TERMINATE. If, during the Term of this Agreement, Employee
shall be unable to perform in all material respects his duties hereunder for a
period exceeding six (6) consecutive months by reason of illness or incapacity ,
this Agreement may be terminated by the Company in its reasonable discretion
pursuant to Section 7.2 hereof.
5.2 RIGHT TO REPLACE. If Employee I s illness or incapacity , whether by
physical or mental cause, renders him unable for a minimum period of thirty (30)
consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to replace
Employee temporarily in the capacity described in Article I hereof; provided,
however, that if Employee returns to work from such illness or incapacity within
the six (6) month period following his inability due to such illness or
incapacity , he shall be entitled [0 be reinstated in me capacity described in
Article I hereof with all rights, duties and privileges attendant thereto.
5.3 RIGHTS PRIOR TO TERMINATION. Employee shall be entitled to his full
remuneration and benefits hereunder during such illness or incapacity unless and
until an election is made by the Company to terminate this Agreement in
accordance with the provisions of this Article.
5.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of this Article
V, the term "illness or incapacity" shall mean Employee's inability to perform
his duties hereunder substantially on a full-time basis due to physical or
mental illness as determined by a physician
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selected by the Company and the Employee.
ARTICLE VI
CONFIDENTIALITY
6.1 CONFIDENTIALITY. During the Term of this Agreement and thereafter,
Employee agrees to maintain the confidential nature of the Company's trade
secrets, including, without limitation. development ideas, acquisition
strategies and plans, financial information. records, "know-how" , methods of
doing business, customer, supplier and distributor lists and an other
confidential information of the Company. Employee shall not use (other than in
connection with his employment), in any way whatsoever, such trade secrets
except as authorized in writing by the Company. Employee shall, upon the
termination of his employment, deliver to the Company any and all records,
books, documents or any other materials whatsoever (including all copies
thereof) containing such trade secrets, which shall be and remain the property
of the Company.
6.2 NON-REMOVAL OF RECORDS. All documents, papers, materials, notes, boob,
correspondence, drawings and other written and graphic records relating to the
business of the Company which Employee shall prepare or use. or come into
contact with, shall be and remain the sole property of the Company and effective
immediately upon the termination of the Employee's employment for any reason.
such materials shall not be removed from the Company's I premises without the
Company I s prior written consent.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. This Agreement and the employment of Employee
may be terminated by the Company "For Cause" under anyone of the following
circumstances :
(a) Employee commits any material act of fraud, misappropriation or
theft against the Company.
(b) Employee's default or breach of any material provision of this
Agreement; provided, that Employee shall not be in default or breach
hereunder unless he shall have failed to cure such default or breach
within thirty (30) days of written notice thereof by the Company to
Employee.
(c) Employee engages in willful misconduct in the performance of his
duties hereunder; provided. that Employee shall not be in default
hereunder unless he shall have
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failed to cure such default or breach within thirty (30) days of written
notice thereof by the Company to Employee.
(d) Employee is convicted of a felony offense.
(e) At the election of Employee by giving not less than thirty (30)
days written notice to Company.
A termination For Cause under this Section 7.1 shall be effective upon the
date set forth in a written notice of termination delivered in accordance with
the notice provisions of this Agreement.
7.2 TERMINATION WITHOUT CAUSE. This Agreement and the employment of the
Employee may be terminated "Without Cause" as follows:
(a) By munla1 agreement of the parties hereto.
(b) At the election of the Company (which shall be done by its
giving not less than thirty (30) days written notice to Employee) in the
event of an illness or incapacity described in Article V.
(c) Upon the removal of Employee from his position with the Company
or in the event the Company fails to afford Employee the power and
authority generally commensurate with his position or if the Company is in
breach of this Agreement.
(d) Upon Employee's death.
(e) At the election of the Employee if the Company requires Employee
to relocate his residence outside of Florida.
A termination Without Cause under Section 7.2(b) hereof shall be effective
upon the date set forth in a written notice of termination delivered in
accordance with the notice provisions of such sections. A termination Without
Cause under Sections 7.2(a) or (d) hereof shall be automatically effective upon
the date of mutual agreement or the date of death of the Employee. as the case
may be. A termination Without Cause under Sections 7.2(c) hereof shall be
effective upon the date of such event takes place.
7.3 Effect of Termination For Cause. If Employee's employment is
terminated "For Cause":
(a)Employee shall be entitled to accrued base salary under Section
3.1 hereof through the date of termination.
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(b) Employee sha1l be entitled to receive all benefits as would have
been awarded under Section 3.5 hereof through the date of termination,
which benefits shall be .awarded as and when the same would have been
awarded under the Agreement had it not been terminated.
(c) Employee shall be entitled to accrued incentive compensation
under Section 3.2 hereof through the date of termination.
(d) Employee shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions of
Section 4.1 hereof.
(e) All unvested Option Shares under Section 3.3 hereof shall be
forfeited.
(f) Except as provided in Article XI, this Agreement shall thereupon
terminate and cease to be of any further force or effect.
7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Employee's employment is
terminated "Without Cause ":
(a) Employee shall be entitled to accrued base salary under Section
3.1 hereof through the date of termination.
(b)Employee shall be entitled to receive all benefits as would have
been awarded under Section 3.5 hereof through the date of termination,
which benefits shall be awarded as and when the same would have been
awarded under the Agreement had it not been terminated.
(c) Employee shall be entitled to reimbursement for expenses accrued
through the date of termination in accordance with the provisions of
Section 4.1 hereof.
(d) Employee sha1l be entitled to a lump sum severance payment in an
amount equal to one hundred twenty five thousand dollars ($125,000.00).
(e) Employee shall be entitled to receive an amounts of incentive
compensation as would have been payable under Section 3.2 hereof through
the original term of the Agreement, which amounts shall be paid as and
when the same would have been paid under the Agreement had it not been
terminated.
(f) All unvested Option Shares under Section 3.3 hereof shall
immediately vest in full.
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(g) Except as provided in Article X, this Agreement shall thereupon
terminate and cease to be of any further force or effect.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 NON-COMPETITION. Employee agrees that during the Term of this
Agreement and. in the case of a termination "For Cause" for a period of two (2)
years thereafter. Employee will not, directly, indirectly, or as an agent on
behalf of or in conjunction with any person, firm, partnership, corporation or
other entity, own, manage, control, join, or participate in the ownership,
management, operation, or control of, or be financially interested in or advise,
lend money to, or be employed by or provide consulting services to, or be
connected in any manner with any person engaged in a business the same as or
substantially similar to the Company's business which is located within a one
hundred (100) mile radius of any Company business.
8.2 NON-INTERFERENCE. Employee agrees that during the Term of this
Agreement and, in the case of a termination "For Cause" , for a period of one
(1) year thereafter . Employee will not, directly, indirectly or as an agent on
behalf of or in conjunction with any person, firm, partnership, corporation or
other entity, induce or entice any employee of the Company to leave such
employment or cause anyone else to do so.
8.3 SEVERABILITY .If any covenant or provision contained in Article VIII
is determined to be void or unenforceable in whole or in part, it shall nor be
deemed to affect or impair the validity of any other covenant or provision. If,
in any arbitral or judicial proceeding, a tribunal shall refuse to enforce all
of the separate covenants deemed included in this Article VIII, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
ARTICLE IX
MISCELLANEOUS
9.1 NO WAIVERS. The failure of either party to enforce any provision of
this Agreement shall not be constI1led as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
9.2 NOTICES. Any notice to be given to the Company and Employee under the
terms of this Agreement may be delivered personally, by telecopy, telex or other
form of written
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electronic transmission, or by registered or certified mail, postage prepaid,
and shall be addressed as follows:
IF TO THE COMPANY: Medical Industries of America, Inc.
1903 S. Congress Ave., #400
Boynton Beach. FL 33463
Attn: Paul C. Pershes, President
IF TO EMPLOYEE: E. Nicholas Davis, III
759 Oakmont Lane
Winter Haven, FL 33880
A party may hereafter notify any other party in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
9.3 SEVERABILITY. The provisions of this Agreement are severable and if
any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
9.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
9.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida without reference to
the conflict of law principles thereof.
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9.7 SECTION HEADINGS. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the content
of said sections .
9.8 FURTHER ASSURANCES. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by the oilier party in order to carry out the provisions
and purposes of this Agreement.
9.9 GENDER. Whenever the pronouns "he" or "his" are used herein they shall
also be deemed to mean "he" or "his" or "it" or "its" whenever applicable. Words
in the singular shall be read and construed as though in the plural and words in
the plural shall be read and construed as though in the singular in all cases
where they would so apply.
9.10 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original.
9.11 ENFORCEMENT. Notwithstanding anything herein to the contrary, all
claims and disputes relating to this Agreement shall be subject to confidential
binding arbitration in accordance with the National Health Lawyers Association
Alternative Dispute Resolution Rules of Procedure for Arbitration then in force
and with individuals knowledgeable of the medical industry serving as
arbitrators. Written notice of demand for arbitration shall be filed with the
other party to the Agreement and with the National Health Lawyers Association in
Washington, D.C., within a reasonable time after the dispute has arisen. In the
event either party resorts to legal action to enforce the arbitration results or
any other provision of this Agreement, the prevailing party shall be entitled to
recover the costs of such action so incurred, including. without limitation,
reasonable attorneys' fees.
ARTICLE X
SURVIVAL
10.1 SURVIVAL The provisions of Articles VI, VII, VIII, and IX of this
Agreement shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Medical Industries of America, Inc.,
a Florida Carolina corporation.
By:/s/ PAUL C. PERSHES
Paul C. Pershes, President
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EMPLOYEE
/s/ E. NICHOLAS DAVIS, III
E. Nicholas Davis, III
AGREEMENT OF PRN OF NORTH CAROLINA, INC.
PRN of North Carolina, Inc. hereby represents that it has the requisite
authority to enter into this Agreement and hereby consents to and agrees to be
legally bound to the provisions set forth in this Agreement which pertain to it.
PRN of North Carolina, Inc.
By: /s/ RANDY LUBINSKY
Randy Lubinsky, CEO
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AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT TO EMPLOYMENT AGREEMENT made this 5th day of February, 1999 by and
between MEDICAL INDUSTRIES OF AMERICA, INC., a Florida corporation (the
"Employer") and NICK DAVIS (the "Employee").
RECITAL:
1. The Employer and the Employee entered into an Employment Agreement dated
March 15, 1998 (the "Agreement") setting forth the terms and conditions of
the employment of the Employee by the Employer.
2. The Employer and the Employee wish to amend the Agreement as set forth
herein
NOW, THEREFORE, based on the foregoing and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
The term of the Agreement shall be extended to December 31, 2003, unless earlier
terminated by either party pursuant to the terms of the Agreement Assuming all
conditions of this Agreement have been satisfied and there has been no breach of
the Agreement during its term, Employee may extend the term for an additional
one (1) year term at Employee's election.
All other provisions of the Agreement shall remain in effect and unchanged.
IN WITNESS WHEREOF, the parties have executed this Amendment to the Employment
Agreement on the date first above written.
MEDICAL INDUSTRIES OF AMERICA, INC.
By:/s/ PAUL C. PERSHES
Paul C. Pershes, President
/s/NICHOLAS DAVIS
Nick Davis
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-3/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/05 | | 3 | | | | | None on these Dates |
| | 12/31/03 | | 13 |
| Filed on: | | 5/4/00 |
| | 3/15/98 | | 13 |
| | 11/1/97 | | 1 | | 3 |
| List all Filings |
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