EXHIBIT 10.33
CONSULTING AND NON-COMPETITION AGREEMENT
CONSULTING
AND NON-COMPETITION AGREEMENT (the "Agreement"), dated May 7,
2004, by and between Schick Technologies,
Inc., a Delaware corporation, with its
principal place of business at 30-00 47th
Avenue, Long Island City, New York
11101 (the "Company"), and David B. Schick,
residing at 147-48 69th Road,
Flushing, New York 11367 (the
"Consultant"), and, solely for purposes of Section
1(a) hereof, Curtis M. Rocca III, whose
principal place of business is 2998
Douglas Boulevard, Suite 300, Roseville,
California 95661, as escrow agent
("Rocca").
RECITALS
WHEREAS,
the Company and Consultant are willing to terminate by mutual
agreement the Employment Agreement, dated
as of December 20, 2001, as amended,
between the Company and Consultant (the
"Employment Agreement"), pursuant to
which Consultant has acted as Chief
Executive Officer of the Company up to the
Resignations Delivery Date (as hereinafter
defined);
WHEREAS,
Consultant has demonstrated extensive technical and scientific
knowledge, skill and expertise in
connection with the design, development and
manufacture of digital radiographic imaging
systems and devices for the dental
and medical markets;
WHEREAS,
the Company desires to retain the benefit of such knowledge,
skill and expertise to assist it in
connection with the conduct of the business
of the Company;
WHEREAS,
the Company also desires to secure Consultant's agreement not
to
compete with the Company under the
circumstances and for the time periods
described in this Agreement and Consultant
agrees not to compete with the
Company under such circumstances and for
the time periods as described herein;
and
WHEREAS, the Company is
willing to compensate Consultant for his services
as a consultant to the Company, together
with his non-competition covenants, all
upon the terms, covenants and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the compensation paid hereunder,
the
mutual covenants, agreements and promises
hereinafter set forth, and for other
good and valuable consideration, the
receipt and sufficiency of which is hereby
agreed and acknowledged, the parties
hereto, intending to be legally bound,
agree as follows:
1.
Resignations.
(a) Escrow. Concurrent with the execution of this Agreement,
Consultant has delivered his executed but
undated resignations as Chief
Executive Officer of the
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Company, as Chairman of the Board, and as a
member of the Board of Directors of
the Company (the "Resignations") as
attached as Exhibit A hereto, to Rocca, who
shall hold the Resignations in escrow.
Consultant hereby authorizes Rocca to
date the Resignations and to deliver them
out of escrow to the Company in
accordance with the provision contained in
the Resignations (the date of such
delivery being hereinafter referred to as
the "Resignations Delivery Date"). The
Company shall give written notice to the
Consultant promptly after the delivery
of the Resignations to the Company, but the
failure to give such notice shall be
without liability to the Company unless the
Consultant has been prejudiced by
the failure to receive such notice. The
Company and Consultant hereby indemnify
and hold harmless Rocca from any damages,
losses, claims or any other matters
whatsoever with respect to his acting as
escrow agent herein.
(b)
Termination of the Employment Agreement. As of the Resignations
Delivery Date, the Employment Agreement
shall be of no further force and effect,
and all rights and obligations of the
parties thereto, including, without
limitation, those set forth in Section V
thereof, shall be extinguished. In
consideration of the performance by the
Company of its covenants in this
Agreement, Consultant, knowingly and
voluntarily, agrees that Consultant,
Consultant's heirs, successors, and
representatives, and any person or entity
acting for, through or on behalf of
Consultant, permanently release, waive,
acquit and forever discharge the Company,
its subsidiaries, and affiliates, and
their respective present and former
officers, directors, employees,
representatives and agents, along with
their successors, heirs and assigns
("Released Parties") from any and all
claims, allegations, complaints,
proceedings, charges, actions, debts,
covenants, contracts, demands, causes of
action, liabilities or damages of any kind
which Consultant may now have or at
any time heretofore had, known or unknown,
accrued or unaccrued, attributable to
or arising out of or in any way connected
with or related to the Released
Parties (other than the rights or claims
that arise under this Agreement,
including, without limitation, the rights
provided for indemnification described
in Section 13 hereof), from the beginning
of time to the date of this Agreement,
it being the intention of the parties to
make this release as broad and as
general as the law permits. Notwithstanding
anything to the contrary contained
herein, Consultant shall be entitled to
receive any wages or bonuses accrued and
unpaid as of the Resignations Delivery Date
as provided for in the Employment
Agreement at such times as they shall be
payable to him thereunder.
2. Consulting Services.
(a)
Duties. For the three-year period (or such shorter period in the
event
of early termination in accordance with
Section 9 hereof) commencing on the
Resignations Delivery Date (the "Consulting
Term"), Consultant shall act as a
consultant to the Company and shall report
directly to the Chief Executive
Officer of the Company (the "CEO") or to
such other individual(s) as the CEO may
designate in his sole and absolute
discretion. Consultant shall be responsible
to perform the following duties for the
benefit of the Company (collectively,
the "Consulting Services"):
(i) explore and evaluate new product ideas and enhancements or
extensions to existing products;
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(ii) troubleshoot technical issues associated with Company
products
and products under development, as
requested by the CEO, and recommend
appropriate solutions;
(iii) review and comment (orally or in writing, as may be
requested
for each particular project) on system
requirements documents, design documents,
QC and testing procedures, and other
technical issues as may be requested by the
CEO;
(iv) prepare for the CEO on a timely basis (as determined by
the
CEO) a quarterly written report and provide
oral reports from time to time as
shall be requested by the CEO covering:
industry trends; competition; analysis
of Company product development issues;
technical strategic alternatives; new
product ideas that may be relevant or
applicable to the Company; and
technological advancements that may be
relevant to the Company's products or
market position;
(v) provide in a timely manner (as determined by the CEO) such
other
reports as may be reasonably requested by
the CEO for specific projects;
(vi) attend engineering meetings and design reviews at the
invitation of the CEO;
(vii) evaluate technical issues relating to potential products
or
entity acquisitions;
(viii) conduct specific research and development projects as
requested by the CEO, and accept
responsibility for providing agreed upon
deliverables within agreed timelines;
(ix) provide advice with respect to intellectual property
issues
with respect to the Company or its
technology, as requested by the CEO; and
(x) perform such other services as may be reasonably requested
by
the CEO.
(b) Time
Commitment; Availability. Consultant shall provide the
Consulting
Services to the Company for at least one
hundred forty (140) hours per calendar
quarter. Consultant shall use his
reasonable best efforts to provide the
Consulting Services at times reasonably
requested by the Company, Monday through
Friday, excluding Company-observed
holidays. The Company acknowledges that
Consultant may from time to time have other
clients and that, as a result of the
needs of other clients and other personal
or professional responsibilities,
Consultant may have scheduling conflicts
that will render him unavailable to
provide the Consulting Services at certain
times.
(c)
Location. Except with the prior written consent of the CEO,
Consultant
shall not perform the Consulting Services
on the premises of the Company
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other than those Consulting Services that
in the sole discretion of the Company
must be performed on such premises. As soon
as reasonably practicable after the
Resignations Delivery Date, Consultant
shall be responsible for establishing a
place of business in a location of
Consultant's choosing from which Consultant
will perform the Consulting Services
generally. Consultant shall bear the cost
of all expenses relating to Consultant's
place of business. The Company shall
not bear any transportation costs relating
to Consultant's transportation to or
from the Company's premises, except with
the prior written approval of the CEO.
Company Policies. During the Consulting Term, Consultant agrees
to
comply with all policies of the Company
applicable to him in effect from time to
time.
3.
Compensation and Benefits
(a)
Consulting and Non-Competition Payment. Subject to Section 9
hereof,
the Company shall pay to Consultant, and
Consultant shall accept from the
Company, in full payment for the Consulting
Services rendered to the Company and
for Consultant's non-competition and other
covenants made in this Agreement, an
amount equal to $1,020,000 (the "Fee"),
payable in arrears in thirty-six equal
monthly payments. The parties hereto
acknowledge that the Fee provided for
herein is in full consideration of the
performance by Consultant of the
Consulting Services and the adherence by
Consultant to the restrictions of the
non-competition and other covenants and
that the parties have not attempted to
allocate the Fee so as to specify what
portion thereof is allocable to the
Consulting Services and the non-competition
and other covenants. In all
circumstances, including the possible early
termination of the Consulting
Services under the circumstances set forth
in Section 9(b) or (c) hereof,
Consultant acknowledges as reasonable the
sum of (i) the remaining payments to
him, if any, in such circumstances, (ii)
the partial payment of the Fee already
received by him prior to such termination,
and (iii) the provisions of Section 8
hereof, in consideration of his continued
adherence to the restrictions of the
non-competition covenants for the remainder
of the Restriction Period (as
hereinafter defined).
(b) Health
Insurance. The Company shall use its reasonable best efforts,
without incurring additional expense, to
permit Consultant to participate in the
Company's health insurance plan (or a
materially similar plan); provided,
however, that Consultant agrees to
reimburse the Company for all costs
associated therewith. Nothing contained
herein shall restrict Consultant's (and
his dependents') eligibility to instead
elect COBRA and other continuation
coverages on the same terms afforded other
terminating employees of the Company.
(c)
Company Car. Subject to the terms and conditions of the
applicable
lease, Consultant shall have the option,
exercisable during the 30 days after
the Resignations Delivery Date, to assume
the lease for the car leased by the
Company and used by Consultant during his
term of employment with the Company
(the "Company Car"), and
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to transfer the liability for such lease
into Consultant's name or,
alternatively, to return the Company Car to
the Company.
(d)
Expenses. Except as otherwise provided herein, the Company
shall
reimburse Consultant for all of his
reasonable out-of-pocket expenses incurred
in the discharge of the Consulting
Services, consistent with Company policy as
to reimbursable expenses and upon
submission of appropriate documentation;
provided, however, that any such expenses
in excess of two hundred dollars will
not be reimbursed unless the written
approval of the CEO has been obtained prior
to the incurrence of such expense.
(e) No
Other Benefits or Perquisites. Consultant shall be entitled to
no
other benefits or perquisites other than
those provided for in this Section 3
hereof.
4.
Independent Contractor. Consultant and the Company agree that for
the
purposes of this Agreement, Consultant
shall be an independent contractor and
not an employee of the Company. Except as
set forth in Section 3, Consultant
shall not be entitled to any salary or
other compensation from the Company and
will not receive any sick, holiday or
vacation pay from the
