EXHIBIT 10(C)
EMPLOYMENT AGREEMENT
BETWEEN
NUTRAMAX PRODUCTS, INC.
EMPLOYER
AND
EMPLOYEE
DATED: January 1, 1994
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated and effective as if this first day of January, 1994,
by and between Nutramax Products, Inc., a corporation organized and existing
under the laws of the State of Delaware (hereinafter 'Employer'), and Xxxx X.
XxXxx (hereinafter 'Employee'), an individual residing at 00 Xxx Xx????? Xxxx
Xxxx, Xxxxxxxxxx, XX, 00000.
WHEREAS, Employee desires to retain Employee as Vice President, Materials
Management for Employer; and
WHEREAS, Employee desires to accept such engagement, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, agree as follows:
1. Terms and Duties
(a) Employer hereby employs Employee as Vice President, Materials
Management of Employer, and to render such services as are appurtenant thereto,
for an initial term beginning on the 1st day of January, 1994 (the 'Commencement
Date') and ending on the 31st day of December, 1996, and thereafter until either
party shall have given to the other written notice of its intent to terminate
not less than thirty (30) days prior to the termination date set forth in the
notice. Employee shall perform such executive duties of a responsible nature as
shall be in all material respects in conformance with the directions and
policies established and promulgated by Employer and consistent with his
position.
(b) In addition to its right to terminate this Employment Agreement for
cause under the provisions of subparagraph 5(c) hereinafter, Employer shall have
the further right, at any time without notice:
(i) To terminate Employee's position as Vice President, Materials
Management of Employer (but not terminate this Employment Agreement) if in
the sole determination of Employer's Board of Directors, Employee's
continuation in either such position may be contrary to the best interests
of Employer; or
(ii) To terminate this Employment Agreement at any time without cause
and without notice, upon payment to Employee of a sum equal to the
compensation then due him for the balance of the initial term hereof, at
the annual rate of compensation to which Employee is entitled to hereunder
as of the date of such termination.
(c) Employee shall report to the President of Employer and shall devote
his best efforts and full business time to the performance of his duties and to
advance Employer's interests.
(d) Employee shall not, without the prior written consent of Employer,
during the term of this Agreement, be engaged in any other business activity
whether or not such business activity is pursued for gain, profit, or other
pecuniary advantage; but this shall not be construed as preventing Employee from
investing his assets in such form or manner as will not require the performance
of services by Employee in the operation of the affairs of the enterprises or
companies in which said investments are made. Employee may participate in
appropriate community activities not inconsistent with his duties and position
as an Executive of Employer. In all cases, Employee's activities in this regard
shall comply with policies of general application as to participation on Boards
of Directors of non-profit and for-profit corporations, as such policies are
established by Employer from time to time.
2. Compensation.
(a) As compensation for Employee's services hereunder, Employer shall pay
to Employee a salary (the 'Base Compensation'), which shall initially be at the
rate of Ninety thousand ($90,000) dollars per year, from the commencement of the
term hereof until the next following December 31. During each subsequent year
ending December 31, Employee's salary shall be at the annual rate set
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forth in the annual Business Plan of Employer for such year. All salary provided
for hereunder shall be payable in biweekly or such other installments as shall
be consistent with Employer's payroll procedures. Employer shall deduct and
withhold all necessary social security and withholding taxes and any other
similar sums required by law or authorized by Employee.
(b) Employee shall be entitled to receive such fringe benefits as are set
forth in the applicable policy manual of Employer; provided, however, that
Employer may at any time and from time to time add to, reduce, eliminate or
otherwise modify those fringe benefits as long as Employee is provided with
those fringe benefits which are applicable to all similarly situated senior
electives of Employer. In addition, Employee shall participate in an Executive
incentive Compensation Plan, as the same is described on Exhibit 2(b) attached
hereto and made part hereof (the 'Incentive Plan'), at the 'C' level; provided,
however, the Board may at any time and from time to time modify or replace the
Incentive Plan, and in the event that the said Incentive Plan shall be succeeded
by another such plan, Employee shall participate therein at a similar level as
shall be set forth in such successor plan. The annual objectives of Employee in
connection with his participation in the Incentive Plan shall be mutually agreed
upon each year by Employee an the President of Employer.
(c) anything contained herein to the contrary notwithstanding, no further
Base Compensation, bonus or incentive compensation (as described in subparagraph
2(b) hereof) shall be payable hereunder, including salary and fringe benefits,
upon and in the event of the termination of this Employment Agreement prior to
the expiration of its term by Employee for any reason, or by Employer for any of
the reasons set forth in subparagraph 5.
(d) Notwithstanding anything to the contrary contained herein, the
provisions of this paragraph 2 supersede in all respects the provision of
paragraphs 2 and 6 of that certain Employment Agreement between Employer and
Employer and Employee dated July 25, 1990, as amended except to the extent that
paragraph 6 of said prior agreement refers to payments, distribution and acts
occurring on or after January 1, 1994 (the 'Surviving Provisions') in which case
the Surviving Provision in said agreement shall remain in force and effect.
3. Expenses.
Employee is authorized to incur reasonable expenses for conducting and
promoting the business of Employer, including expenses for travel and similar
items, subject to time. Employer will reimburse Employee for such expenses, on a
monthly or other regular basis, upon the presentation by Employee of an itemized
account of such expenditures, consistent with procedures established by
Employer, together with such receipts or other evidence as shall be required for
tax or accounting purposes.
4. Disclosure of Information/Restrictive Covenant.
(a) Employee recognizes and acknowledges that (i) all plans, system,
methods, designs, procedures, books and records known to Employee, relating to
the operations, personnel and practices of Employer, and of any subsidiary or
affiliate of Employer (whether instituted or commenced prior or subsequent to
the date hereof and whether or not initially instituted or commenced by
Employer, or by any now or then present or former subsidiary or affiliate
thereof), (ii) all other records, documents and information concerning
Employer's or such subsidiary's or affiliate's business activities, practices
and procedures, and any name or style under which Employer or any such
subsidiary or affiliate shall be operated during the term hereof, or shall have
been operated prior hereto, and (iii) any logo or other descriptive or
illustrative form thereof, utilized by Employer, or such subsidiary or
affiliate, as they may exist from time to time, constitute and will constitute
valuable, special and unique assets of Employer's and any such subsidiary's or
affiliate's business and that Employee may have access to confidential
information and/or trade secrets related to Employer's business. Except as
required in the course of his employment hereunder, Employee therefore covenants
and agrees that he will not ever, at any time without the prior consent of
Employer, as the case may be, directly or indirectly disclose to any third party
or use for his own benefit any part of such confidential information, to the
extent such information has theretofore remained confidential (except for
unauthorized disclosures by Employee) and except as otherwise ordered by a court
of competent jurisdiction, or use or permit to be used any
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such name, style, logo or form, to or by any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever.
(b) Presently Employer's business is national in scope, and the parties
hereto understand and agree that it is the intention of both to maintain
Employer's business activities, operations, markets and marketing activities and
of corporations and entities controlled by or related to or affiliated with
Employer, throughout the United States, and further that Employer's business
will continue in the future to be national in scope. Therefore, the parties
expressly agree that during the term of this Employment Agreement and any
renewal or extension thereof, and in addition, for a period of two (2) years
following the termination of this Agreement (or any renewal or extension
period), Employee will not, throughout the United States, (i) own directly or
indirectly, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation or control or,
any business which shall deal with or provide services, or engage in activities,
at any time hereafter engaged in by Employer, or by any subsidiary or affiliate
of Employer, or by any subsidiary or affiliate of Employer, nor (ii) following
the termination of this Agreement (or any renewal or extension period), solicit
or attempt to solicit customers of Employers or any subsidiary or affiliate of
Employer, or other persons or entities with or through whom Employer and/or any
subsidiary or affiliate or either has done business, for the purpose of
providing such services or engaging in such activities or in any other way
interfere with or detract from the business and opportunities of Employer or any
subsidiary or affiliate of Employer, including by way of example and without
limiting the generality of the foregoing, by inducing an employee to leave
Employer's employ or that of any subsidiary or affiliate of Employer, or by
inducing a consultant or other independent contractor to sever that person's
relationship with Employer or with any subsidiary or affiliate of Employer.
(c) Employee acknowledges that the restrictions contained in this
paragraph are reasonable and necessary in view of the nature of Employer's
businesses, in order to protect the legitimate interests of Employer, and that
any violation thereof would result in irreparable injury to Employer. Therefore,
Employee agrees that, in the event of a breach or threatened breach by Employee
of the provision of subparagraphs 4(a) or 4(b), Employer shall be entitled to
obtain from any court of competent jurisdiction, preliminary and permanent
injunctive relief restraining Employee from any violation of the foregoing.
(d) Nothing herein shall be construed as prohibiting Employer from
pursuing any other remedies available to Employer for such breach or threatened
breach, including recovery of damages from Employee, and an equitable accounting
of all earnings, profits and other benefits arising from such violation.
(e) Employee and Employee acknowledge their intention that Employer shall
have the broadest possible protection of the value to Employer's business in the
trade area set forth above consistent with public policy, and it will not
violate the intent of parties if any court should determine that, consistent
with established precedent of the forum state, the public policy of such state
requires a more limited restriction in geographical area or duration of
Employee's covenant not to compete, contained in an appropriate decree.
5. Termination.
This Agreement may be terminated by Employer under any of the following
circumstances:
(a) Upon the death of Employee; or
(b) Upon the inability of Employee to perform all of his duties hereunder
by reason of illness, physical, mental or emotional disability or other
incapacity, which inability shall continue for more than three (3) months or six
(6) months in the aggregate during any period of twelve (12) consecutive months;
or
(c) For cause, defined as the failure of Employee (other than for the
reasons described in subparagraph 5(b) above) to perform or to observe and
comply with any of the material terms or provisions of this Employment
Agreement; Employer's good faith determination that Employee is not
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adequately performing his duties hereunder; misconduct or action on the part of
Employee that is damaging or detrimental to Employer; conviction of a crime
involving a felony; fraud, embezzlement or the like; habitual insobriety;
habitual use of a controlled substance; or misappropriation of Employer's funds.
6. Insurance.
Employer shall have the right to purchase such policies of insurance on the
life of Employee as may be determined by Employer in its sole discretion, and as
may be available, at the sole cost and expense of Employer, and naming Employer
as owner and beneficiary, and Employee shall cooperate in the placement thereof.
7. Notice.
(a) Each notice, demand, request, consent, report, approval or
communication ('Notice') which is or may be required to be given by any party to
any other party in connection with this Agreement and the transactions
contemplated hereby, shall be in writing, and given by telecopy, personal
delivery, receipted delivery device, or by certified mail, return receipt
requested, prepaid and properly addressed to the party to be served as shown in
subparagraph 7(b) below.
(b) Notices shall be effective on the date sent via telecopy, the date
delivered personally or by receipted delivery service, or three (3) days after
the date mailed:
If to Employer: NutraMax Products, Inc.
Xxx XXXXX Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
If to Employee: At his residence address most
recently filed with Employer.
In each case, with Xxxx X.Xxxxxxx, Esq.
copies to: Corporate Counsel
MEDIQ Incorporated
Xxx XXXXX Xxxxx
Xxxxxxxxxx, XX 00000
(c) Each party may designate by Notice to the others in writing, given in
the foregoing manner, a new address to which any Notice may thereafter be so
given, served or sent.
8. Waiver of Breach.
The waiver by either party of a breach of any provision of this Agreement
by the other shall not operate or be construed as a waiver of any subsequent
breach.
9. Assignment.
The rights and obligations of Employer under this Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of Employer,
but the rights and obligations of Employee are personal and may not be assigned
or delegated without Employer's prior written consent.
10. Entire Agreement.
This Agreement contains the entire agreement of the parties with respect to
the subject matter hereof. It may not be changed orally, but only by an
agreement in writing executed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
11. Law Applicable.
This Agreement and all covenants contained herein, shall be governed in all
respects, whether as to validity, construction, capacity, performance or
otherwise, by the laws of the Commonwealth of Massachusetts in which it has a
situs. Each of the covenants contained in paragraph 4 of this Agreement shall be
construed as a separate covenant in each of the separate cities and counties of
the United States in which Employer presently is engaged in business. To the
extent that any such covenant shall be unenforceable in any one or more of such
cities or counties, such declaration shall not affect this covenant with respect
to any other city or county, as each of said covenants shall be construed to be
severable and independent. In the event any provision of this Agreement shall be
held invalid by a court with jurisdiction over the parties to this Agreement,
such provision shall be deleted from the Agreement, which shall then be
construed to give effect to the remaining provisions thereof.
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12. Paragraph Headings.
The paragraph headings contained in this Agreement are for convenience only
and in no manner shall be construed as part of this Agreement.
13. Counterparts.
This Agreement may be executed simultaneously 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 as of the day
and year first above written.
Employer:
NutraMax Products, Inc.
By: _/s/___________________________
Xxxxxx X. Xxxxxx, President
Employee:
_/s/__________________________(SEAL)
Xxxx X. XxXxx
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