EXHIBIT 10(e)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of September 15, 1995, between VWR
Corporation, a Pennsylvania corporation (the "Company") and Xxxxxxx X. Xxxxxx
("Xx. Xxxxxx").
BACKGROUND
Pursuant to a Common Share and Debenture Purchase Agreement (the
"Securities Purchase Agreement") dated as of May 24, 1995, as amended, between
the Company and EMI Industries, Inc., a New York corporation ("EMI"), EMI has
agreed to purchase additional equity securities of the Company. EMI has
subsequently assigned certain of its rights and obligations under the Securities
Purchase Agreement to its wholly-owned subsidiary, EM Laboratories,
Incorporated, a New York corporation ("EML"). (EMI and EML are collectively
referred to herein as the "Investor.") It is a condition precedent to the
closing of the transactions contemplated by the Securities Purchase Agreement
that the Company and Xx. Xxxxxx enter into this Agreement pro viding for the
continued employment of Xx. Xxxxxx by the Company and certain other matters, as
provided herein.
Pursuant to the foregoing, the Company desires to continue to employ Xx.
Xxxxxx as its Chief Executive Officer, and Xx. Xxxxxx desires to continue in the
employment of the Company, on the terms and conditions contained in this
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and intending, to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. The Company hereby employs Mr.
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Xxxxxx, and Xx. Xxxxxx hereby accepts employment by the Company, for the period
and upon the terms and conditions hereinafter set forth.
1.2 CAPACITY AND DUTIES.
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(a) Xx. Xxxxxx shall be employed by the Company generally as its Chief
Executive Officer subject to the supervision of the Board of Directors of the
Company ("the Board"), shall perform such duties and shall have such authority
consistent with his position as may from time to time be specified by the Board.
Xx. Xxxxxx shall report directly to the Board and shall perform his duties for
the Company principally from the Company's executive offices located in West
Chester, Pennsylvania, except for travel incident to the performance of Xx.
Xxxxxx'x duties hereunder.
(b) Xx. Xxxxxx shall devote his full working time, energy, skill and
best efforts to the performance of his duties hereunder, in a manner which will
faithfully and dili gently further the business and interests of the Company,
and shall not be employed by or participate or engage in or be a part of in any
manner the management or operation of any business enterprise other than the
Company without the prior written consent of the Board, which consent may be
withheld in its sole discretion.
SECTION 2. TERM OF EMPLOYMENT
2.1 TERM. The term of Xx. Xxxxxx'x employment hereunder shall be five
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years and shall commence on the date hereof.
SECTION 3. COMPENSATION
3.1 BASIC COMPENSATION.
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As compensation for the performance of Xx. Xxxxxx'x services
hereunder, the Company shall pay to Xx. Xxxxxx such annual salary and bonus as
the Compensation Committee of the Board shall determine from time to time at its
own discretion, payable in accordance with the Company's regular payroll
practices.
3.2 INCENTIVE COMPENSATION.
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In addition to the compensation provided for in Section 3.1, as incentive
for Xx. Xxxxxx' performance hereunder, simultaneously with the execution and
delivery of this Agreement, the Company has issued and granted to Xx. Xxxxxx
42,566 of the Company's common shares, par value $1.00 per share (the "Grant
Shares") under and pursuant to the terms of the VWR Corporation 1986 Long-Term
Incentive Stock Plan, as amended. The Grant Shares shall be subject to the
following vesting schedule:
(a) 15% of the aggregate number of Grant Shares shall vest on each of
the succeeding anniversary dates of this
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Agreement through and including the fourth anniversary date of this Agreement;
and
(b) all remaining unvested Grant Shares shall fully vest on the fifth
anniversary date of this Agreement.
3.3 EMPLOYEE BENEFITS. In addition to the compensa tion provided for in
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Sections 3.1 and 3.2, Xx. Xxxxxx shall be entitled during the term of his
employment to participate in such employee benefit plans and benefit programs as
may from time to time be provided by the Company for its other executive
officers.
3.4 VACATION. Xx. Xxxxxx shall be entitled to a vacation of up to five
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weeks during each calendar year during the term of his employment, during which
time his compensation shall be paid in full.
3.5 EXPENSE REIMBURSEMENT. During the term of his employment, the Company
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shall reimburse Xx. Xxxxxx for all rea sonable expenses incurred by him in
connection with the performance of his duties hereunder in accordance with its
regular reimbursement policies as in effect from time to time and upon receipt
of itemized vouchers therefor or such other supporting information as the
Company may reasonably require.
3.6 AUTOMOBILE. During the term of his employment, the Company shall
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provide Xx. Xxxxxx with an automobile allowance consistent in nature and amount
with past practice, subject to normal inflationary adjustments.
3.7 OTHER PERQUISITES. During the term of his employment, the Company
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shall provide Xx. Xxxxxx with such other perquisites consistent in nature and
amount with those previously provided to Xx. Xxxxxx and such other perquisites
as may from time to time generally be provided to its other executive officers
or approved by the Board in its sole discretion.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1 DEATH OF XX. XXXXXX. Xx. Xxxxxx'x employment hereunder shall
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immediately terminate upon his death, upon which the Company shall not
thereafter be obligated to make any further payments under Section 3.1 hereof
other than salary and bonus earned through the date of Xx. Xxxxxx'x death.
4.2 DISABILITY OF XX. XXXXXX. If Xx. Xxxxxx, in the reasonable opinion of
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the Board, is or has been unable, for any reason due to his physical, mental or
emotional illness or condition to perform his duties hereunder for a period of
26 consecutive weeks, the Company shall have the right to terminate
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Xx. Xxxxxx'x employment upon 90 days' prior written notice to Xx. Xxxxxx at any
time during the continuation of such inability, in which event the Company shall
not thereafter be obligated to make any further payments under Section 3.1
hereof other than salary and bonus earned through the date of termination of Xx.
Xxxxxx'x employment.
4.3 TERMINATION FOR CAUSE. Xx. Xxxxxx'x employment hereunder shall
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terminate immediately upon notice that the Company is terminating Xx. Xxxxxx for
"cause" (as defined herein), in which event the Company shall not thereafter be
obligated to make any further payments under Section 3.1 hereof other than
amounts (including salary, bonus, expense reimbursements, etc.) accrued as of
the date of termination of Xx. Xxxxxx'x employment. As used herein, "cause"
shall exclusively mean the following:
(i) fraud, theft or misappropriation or embezzlement of the
Company's funds;
(ii) conviction of any crime involving fraud or
misrepresentation, or of any other crime the effect of which will materially
adversely affect the Company;
(iii) material breach of Xx. Xxxxxx'x obligations under
this Agreement;
(iv) repeated and consistent failure of Xx. Xxxxxx to an
excessive degree as determined by the Board to be present at work during normal
business hours, other than absence due to employee's vacation, or an absence due
to one or more of the disabilities specified in Section 4.2; or
(v) willful violation of any express lawful direction or
any lawful rule or regulation established by the Board.
4.4 TERMINATION WITHOUT CAUSE. The Company in its sole discretion may
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terminate Xx. Xxxxxx'x employment hereunder at any time without cause. In such
event, the Company shall, for the period beginning on the date of such
termination and ending on the fifth Anniversary Date, make monthly payments to
Xx. Xxxxxx at an annual rate equal to the greater of (i) the sum of Xx. Xxxxxx'
most recent annual salary plus most recent annual bonus or (ii) the average
salary and bonus earned by Xx. Xxxxxx during the term of this Agreement. In
addition, effective upon any such termination, Xx. Xxxxxx shall become fully
vested in all Grant Shares which were unvested immediately prior to such
termination. Upon making such payments and according such immediate vesting,
the Company shall have no further obligation to Xx. Xxxxxx hereunder.
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SECTION 5. RESTRICTIVE COVENANTS
5.1 CONFIDENTIALITY. (a) Xx. Xxxxxx shall not, either during or after
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his employment with the Company, directly or indirectly use, publish or
otherwise disclose or divulge to any third party any trade secret, confidential
or proprietary information of the Company other than as required by law or in
the ordinary course of the Company's business (including, without limitation,
any such information concerning customers, vendors, services, products,
processes, software service codes, pricing policies, business plans or records,
any technical or financial information or data, or any information relating to
the history or prospects of the Company or any of its stockholders).
"Confidential" information includes, without limitation, all unpublished
information and all information and data which is not generally known by the
industry.
(b) Xx. Xxxxxx shall not, either during or after his employment with the
Company, directly or indirectly copy, reproduce or remove from the Company's
premises, except in the ordinary course of the Company business, trade secrets,
confidential or proprietary information of the Company (in any medium) or any
the Company documents, files or records (including without limitation any
invoices, customer correspondence, orders, computer records or software, or
mailing, telephone or customer lists). All such documents, files and records,
and all other memoranda, notes, files, records, lists and other documents made,
compiled or otherwise acquired by Xx. Xxxxxx in the course of his employment
with the Company are and shall remain the sole property of the Company and all
originals and copies thereof shall be delivered to the Company upon termination
of employment for whatever reason.
5.2 NONCOMPETITION. During the term of Xx. Xxxxxx'x employment hereunder
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and (a) for a period beginning on the date of termination of Xx. Xxxxxx'x
employment hereunder for any reason (other than a termination by the Company
pursuant to Section 4.4 hereof) and ending on the later of two (2) years after
the date of this Agreement or two (2) years after any such termination of
employment, or (b) for a period beginning on the date of any termination of Xx.
Xxxxxx'x employment hereunder pursuant to Section 4.4 hereof and ending two (2)
years after the date of the last monthly payments made to Xx. Xxxxxx pursuant to
Section 4.4, Xx. Xxxxxx shall not, with the organizations identified or
otherwise described in the last sentence of this Section 5.2, directly or
indirectly: (i) engage anywhere in the distribution or supply of laboratory
equipment, chemicals or supplies to the scientific marketplace in competition
with any product which at any time during the term of such employment has been
sold or distributed by the Company; (ii) be or become a
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stockholder, partner, owner, officer, director or employee or agent of, or a
consultant to or provide financial or other assistance to, any such
organization; (iii) seek in competition with the business of the Company to
procure orders from or do business with any customer of the Company; (iv)
solicit, or contact with a view to the engagement or employment by, any person
or entity of any person who is an employee of the Company; (v) seek to contract
with or engage (in such a way as to adversely affect or interfere with the
business of the Company) any person or entity who has been contracted with or
engaged to supply or deliver products, goods, materials or services to the
Company; or (vi) engage in or participate in any effort or act to induce any of
the customers, associates, consultants, partners, or employees of the Company or
any of its affiliates to take any action which might be disadvantageous to the
Company or any of its affiliates; provided, however, that nothing herein shall
prohibit the Xx. Xxxxxx from owning, as a passive investor, in the aggregate not
more than 2% of the outstanding publicly traded stock of any corporation so
engaged. The duration of the Xx. Xxxxxx'x covenants set forth in this Section
shall be extended by a period of time equal to the number of days, if any,
during which the Xx. Xxxxxx is in violation of the provisions hereof. This
Section 5.3 shall not be applicable in the event the Company terminates Xx.
Xxxxxx' employment for any reason other than for Cause, in which event Xx.
Xxxxxx shall in no way be restricted from competing with the Company. For
purposes hereof, Xx. Xxxxxx shall be deemed to be acting in competition with the
Company if he engages in the activities identified in the first sentence of this
section with Xxxxxx Scientific International Inc., Fisons plc, Sigma-Xxxxxxx
Corporation, Mallinckrodt Chemical Co. or any other distributor or supplier of
laboratory equipment, chemicals or supplies to the scientific marketplace having
annual sales in excess of $50,000,000.
5.3 INJUNCTIVE AND OTHER RELIEF.
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(a) Xx. Xxxxxx acknowledges and agrees that the covenants contained
herein are fair and reasonable in light of the consideration paid hereunder and
in order to protect the Investor's investment in the Company, and that damages
alone shall not be an adequate remedy for any breach by Xx. Xxxxxx of his
covenants contained herein and accordingly expressly agrees that, in addition to
any other remedies which the Company may have, the Company shall be entitled to
injunctive relief in any court of competent jurisdiction for any breach or
threatened breach of any such covenants by Xx. Xxxxxx. Nothing contained herein
or in the Securities Purchase Agreement shall prevent or delay the Company from
seeking, in any court of competent jurisdiction, specific performance or other
equitable remedies in the event of any breach or intended breach by Xx. Xxxxxx
of any of its obligations hereunder.
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(b) If any provision hereof is determined to be invalid or
unenforceable by a court of competent jurisdiction by reason of the scope
(duration, geographical or otherwise) of the covenants contained therein, such
scope shall be considered to be reduced to the extent necessary to cure such
invalidity.
SECTION 6. MISCELLANEOUS
6.1 TERMINATION OF AGREEMENT. Upon the execution and delivery of this
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Agreement, the prior Agreement dated as of March 1, 1986, between the Company
and Xx. Xxxxxx attached as Exhibit A hereto shall be terminated and cease to
have any legal effect.
6.2 PRIOR EMPLOYMENT. Xx. Xxxxxx represents and warrants that he is not a
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party to any other employment, non-competition or other agreement or restriction
which could interfere with his employment with the Company or his or the
Company's rights and obligations hereunder; and that his acceptance of
employment with the Company and the performance of his duties hereunder will not
breach the provisions of any contract, agreement, or understanding to which he
is party or any duty owed by him to any other person.
6.3 SEVERABILITY. The invalidity or unenforceability of any particular
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provision or part of any provision of this Agreement shall not affect the other
provisions or parts hereof.
6.4 ASSIGNMENT. This Agreement shall not be assignable by Xx. Xxxxxx, and
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shall be assignable by the Company only to any person or entity which may become
a successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to the Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.5 NOTICES. All notices hereunder shall be in writing and shall be
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sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certi fied mail, postage prepaid, return receipt
requested or by tele gram or telecopy (confirmed by U.S. mail), receipt
acknowledged, addressed as set forth below or to such other person and/or at
such other address as may be furnished in writing by any party hereto to the
other. Any such notice shall be deemed to have been given as of the date
received, in the case of personal delivery, or on the date shown on the receipt
or confirmation therefor, in all other cases. Any and all service of process
and any other notice in any such action, suit or proceeding shall be
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effective against any party if given as provided in this Agreement; provided
that nothing herein shall be deemed to affect the right of any party to serve
process in any other manner permitted by law.
(a) If to Company:
VWR Corporation
0000 Xxxx Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to:
DRINKER XXXXXX & XXXXX
Suite 300
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxx, Esq.
(b) If to Xx. Xxxxxx:
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
6.6 ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes the
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entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification, or waiver of this Agreement shall
not be effective unless in writing. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power, or privilege
with respect to any other occurrence.
6.7 GOVERNING LAW. This Agreement is made pursuant to, and shall be
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construed and enforced in accordance with, the internal laws of the Commonwealth
of Pennsylvania (and United States federal law, to the extent applicable),
without giving effect to otherwise applicable principles of conflicts of law.
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6.8 HEADINGS; COUNTERPARTS. The headings of paragraphs in this Agreement
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are for convenience only and shall not affect its interpretation. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall be deemed to constitute
but one and the same Agreement.
6.9 FURTHER ASSURANCES. Each of the parties hereto shall execute such
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further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
VWR CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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