Exhibit 10.22
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, agreed to be entered into on
and effective as of October 25, 2002 (the "Effective Date"), by and between
XXXXX MEDICAL CORP., a Delaware corporation with an office in New Britain,
Connecticut (the "Employer"), and XXX XXXXXXX of 000 Xxxxxxx Xxxx Xxxx, Xxxxxx,
XX 00000 (the "Employee").
The Employer and Employee hereby agree as follows:
1. Term; Duties. The term of this Agreement shall be for the period from
the Effective Date through December 31, 2003 (or earlier, pursuant to paragraphs
6, 7, 15 or 16) (the "Term"). The Term shall be automatically extended for
successive one-year periods unless the Company gives the Employee notice of
termination no later than (two) months prior to the end of the Term. During the
Term, the Employer will employ the Employee, and the Employee will serve the
Employer, as its Senior Vice President of Supply Chain, reporting to its
President and subject at all times to the direction of its Board of Directors
and Executive Committee. During the Term the Employee's office will be at such
office of the Employer in Connecticut as the Employer may designate. The
Employee agrees that during the Term he will devote his entire working time and
give his best efforts and attention to the business of the Employer. The
Employee shall not be required to perform duties inconsistent with those
normally assigned by the Employer to its executive level employees.
2. Salary. As compensation for his services during the Term, the
Employer will pay the Employee, in installments on the Employer's regular
payroll payment dates and subject to statutory withholding amounts, a salary:
for 2003 at the annual rate of $200,000 plus an inflationary adjustment for any
increase during 2002 and thereafter in the Consumer Price Index (or relevant
industry data index, e.g., Connecticut Business Industry Association). The
Compensation Committee of the Board of Directors reserves the right to increase
salaries above such indices.
3. Bonus Compensation. As additional compensation for his services
during the Term, the Employer will pay the Employee such bonus compensation as
may become due to senior executive officers of the Employer under the 2002
Executive Officers' Bonus Plan of the Employer. The Employee has received a copy
of said Plan. The Employee will, during the Term, be entitled to participate as
a senior executive officer of the Employer under such Executive Officers' Bonus
Plan as the Employer's Board of Directors may adopt for successive years.
4. Vacation; Benefits. The Employee will be entitled to three weeks
vacation during each calendar year in the Term. The Employee has received a list
of the Employer's current benefit plans and policies regarding severance, sick
leave and the like, available or applicable to the Employer's executives,
including the Employee. The Employee acknowledges that said list does not set
forth all material terms and conditions of these plans and policies, and that
they are subject to modification or elimination by the Employer. If a new
benefit plan is made available to officers of the Employer generally, the
Employee will be a participant thereunder.
5. Non-Competition. The Employee covenants and agrees that during the
Term, and until nine months thereafter, he will not, directly or indirectly,
engage or own any interest in any
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distributor of medical or surgical supplies or pharmaceutical, whether as
principal, agent, partner, director, officer, stockholder, investor, lender,
consultant, employee, or in any other capacity. The Employer will not
unreasonably withhold its consent in writing to the Employee's employment after
the Term by a company not principally engaged in the distribution of medical,
surgical or pharmaceutical products which has a subsidiary, division or other
separate business unit engaged in such business if the company in writing
requests such consent from the Employer and gives the Employer its written
agreement, in form and substance satisfactory to the Employer, which (i)
provides that the Employee's services for said company will not, directly or
indirectly, relate to the business or affairs of said subsidiary, division or
unit or to the development of such a distribution business, (ii) sets forth the
practical steps that said company will take to assure compliance with clause (i)
hereof, and (iii) grants the Employer the right and practical ability to have
its independent accountants determine compliance or non-compliance with said
clause. The Employee agrees that a remedy at law for any breach or threatened
breach of the foregoing covenant will be inadequate, and that Employer will be
entitled to temporary and permanent injunctive relief in respect thereof without
the necessity of posting a bond or proving actual damage to Employer.
6. Death. The death of the Employee will terminate the Term.
7. Incapacity. If during the Term the Employee is unable, on account of
illness or other incapacity, to perform his duties for a total of more than 45
consecutive, or an aggregate of 75 days during any twelve month period, the
Employer has the right to terminate the Term on ten days' written notice to the
Employee, and the Employee will thereafter be entitled to receive only one-half
of his salary installments otherwise payable until the earlier of the last day
of (i) the month-end after the delivery of said notice, or (ii) the Term
(determined without giving effect to such termination).
8. Employer Information. All information and materials disclosed by the
Employer to the Employee or acquired at the Employer's expense by the Employee
or acquired or developed by the Employee in connection with his services under
this Agreement, all trade secrets of the Employer and all Work-Product
(hereinafter defined) (herein collectively "Employer Information") shall be and
remain the sole property of the Employer. The Employee shall protect all
Employer Information which may be in his possession or custody and shall deliver
all such Information (and all copies thereof, in any media) to the Employer at
its request. Notwithstanding the foregoing, Employment Information shall not
include information that the Employee can demonstrate (i) was known to him prior
to the disclosure to him by the Employer, or (ii) was publicly known at the time
of the disclosure or which thereafter became publicly known without fault of the
Employee.
9. Work-Product. All right, title and interest in and to any
work-product which the Employee acquires, compiles, authors, invents, makes or
otherwise generates, in whole or in part, including all works authored and all
inventions made, for use in connection with or arising out of or in relation to
his services under this Agreement, whether or not copyrightable or patentable
(herein collectively "Work-Product"), shall belong exclusively to the Employer.
During and after the Term of this Agreement, the Employee shall execute,
acknowledge, and deliver all documents, including, without limitation, all
instruments of assignment, and perform all acts, which the Employer may
reasonably request to secure its rights hereunder.
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10. Confidentiality; Non-use. During and after the Term, the Employee
shall not, without first obtaining the written consent of the Employer, divulge
or disclose to anyone outside the Employer, whether by private or public
communication or publication or otherwise, or use except pursuant to this
Agreement, any Employer Information; however, an incidental non-derogatory
disclosure by the Employee of Employer Information (other than trade secret or
Work Product information) after 18 months following the end of the Term will not
breach this provision.
11. Conflicts of Interest; Conflicting Obligations. The Employee agrees
that it is his responsibility to recognize and avoid, and disclose to the
President of the Employer in writing, any situation which might, either directly
or indirectly, adversely affect his judgment in serving the Employer or which
might otherwise involve a conflict between his personal interests and the
interests of the Employer. The Employee represents and warrants to the Employer
that at the date hereof no such situation exists or is contemplated or
anticipated. The Employee agrees not to disclose or use in the course of his
services for the Employer any trade secret, confidential or proprietary
information, or work-product of any party other than the Employer. The Employee
represents and warrants to the Employer that his entry into and performance of
this Agreement do not and will not conflict with any obligation by which he is
or may become bound or any right of a third party to which he is or may become
subject. The Employee will not serve as a Board member of another company unless
he seeks and obtains the Employer's approval prior to making a commitment to do
so.
12. Non-Solicitation. The Employee agrees that, until one year after the
Term, he will not solicit, induce, attempt to hire, or hire any employee of the
Employer, or assist in such hiring by any other party, or encourage any such
employee to terminate his or her employment with the Employer.
13. Standard Intellectual Property Agreement. The Employee agrees to
execute the Employer's standard employee agreement relating to intellectual
property and employment information. To the extent any of the provisions of this
Agreement are in conflict with any of the provisions of such standard agreement,
the provisions of this Agreement will control.
14. Stock Option as an Inducement. Not Applicable.
15. Effect of "Change of Control"; Termination; Severance. The Employer
or Employee may terminate the Term on written notice to the other within 30 days
after a "Change of Control" (as defined in Section 3(b) of the Employer's Change
of Control and Change of Position Payment Plan). The Employee has received a
copy of said Plan. The Employee may also terminate the Term on written notice to
the Employer within 30 days after "Change of Position" (as defined in Section
3(c)(ii) of the Plan) occurring within twelve months after a Change of Control.
A termination will be effective 30 days after the delivery of the notice. In the
event of a termination by the Employer, the Employee will be entitled to a
severance payment, under Section 4 of the Plan and subject thereto, in the
amount of 100% of the "Base Amount" (as defined in Section 4 of the Plan). In
the event of a termination by the Employee after a Change of Position within
twelve months of a Change of Control, the Employee will be entitled to a
severance payment, under Section 4 of the Plan and subject thereto, in the
amount of 75% of said Base Amount. The provisions of this paragraph 14 supersede
any prior agreement between the Employer and the Employee relating to any
severance, termination or change of control arrangement or payment.
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16. Termination. The Employer will have the right to terminate the Term
for cause. However, in the event the Employee's employment is terminated by the
Employer without cause, the Employee will be entitled to receive his salary
payments for nine months following the last month of employment, less the
compensation earned and consideration received by the Employee from any
subsequent employment or for otherwise providing services. However, the Employee
will not have an affirmative duty to seek employment not consistent with his
experience (including prior levels of responsibility) and expertise. "Cause"
shall include material breach of this Agreement not cured within 10 days, breach
of fiduciary duty, gross insubordination, willful neglect of duties, habitual
unreliability, personal conduct in material violation of the Employer's policies
or universally accepted good business practices, and other matters of comparable
severity to any of the above.
17. Governing Law; Etc. This Agreement is governed by the laws of
Connecticut. It represents the entire agreement of the parties and it cannot be
changed except by a writing signed by the President of the Employer and the
Employee. All notices by the Employee to the Employer under this Agreement shall
be delivered to the President of the Employer.
IN WITNESS WHEREOF, the parties have signed and delivered this
Employment Agreement on the Execution Date, effective as of the Effective Date.
XXXXX MEDICAL CORP.
/s/ Xxx Xxxxxxx by /s/ Xxxxx X. Xxxxxx
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XXX XXXXXXX Xxxxx X. Xxxxxx, President & CEO
State of Connecticut
County of Middlesex
I certify that I know or have sufficient evidence that Xxx Xxxxxxx is
the person who appeared before me, and that said person acknowledged that he
signed this instrument and acknowledged it to be his free and voluntary act.
/s/ Xxxxx X. Xxxxxx
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Dated: October 30, 2002 Notary Public for the State of Connecticut
My commission expires Nov. 30, 2004
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