Contract
Exhibit 10.60
CONFORMED COPY
EMPLOYMENT AGREEMENT (the “Agreement”) dated as of July 19, 2002 (the “Effective
Date”), by and between POREX HOLDINGS, INC., a Delaware corporation (the “Company”),
and XXXXXXX X. XXXXXXXX (“Executive”).
WHEREAS, the Company desires to employ Executive on a full-time basis and Executive desires to
be so employed by the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein
(including, without limitation, the Company’s employment of Executive and the advantages and
benefits thereby inuring to Executive) and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged by each party hereto, the parties hereby
agree as follows:
1 Effectiveness of Agreement and Employment of Executive.
1.1 Effectiveness of Agreement. This Agreement shall become effective as of the
Effective Date. Executive’s employment under this Agreement shall commence on a date to be
mutually agreed upon but no later than September 1, 2002 (the “Employment Commencement
Date”).
1.2 Employment by the Company. The Company hereby employs Executive as its President
and Chief Executive Officer and Executive hereby accepts such employment with the Company.
Executive shall report to, and perform such duties and services for the Company and its
subsidiaries and affiliates (such subsidiaries and affiliates, collectively, “Affiliates”)
as may be designated from time to time by, the Chairman of the Board and/or the Board of Directors
of the Company or its designee. Executive shall use his best and most diligent efforts to promote
the interests of the Company and the Affiliates, and shall devote all of his business time and
attention to his employment under this Agreement. The Executive acknowledges that he shall be
required to travel on business in connection with the performance of his duties hereunder.
2 Compensation and Benefits.
2.1 Salary. The Company shall pay Executive for services during his employment under
this Agreement a base salary at the annual rate of $280,000 (“Base Salary”). Any and all
increases to Executive’s Base Salary shall be determined by the Compensation Committee of the Board
of Directors of the Company, in its sole discretion. Such Base Salary shall be payable in equal
installments, no less frequently than monthly, pursuant to the Company’s customary payroll policies
in force at the time of payment, less any required or authorized payroll deductions.
2.2 Bonus. For each fiscal year of the Company during the Employment Period,
Executive shall be eligible to receive up to $140,000 based upon the achievement of specified
performance goals. These performance goals are to be determined by the Compensation Committee in
consultation with Executive within 90 days following the commencement of the fiscal year or, in the
case of the current year, within 90 days following the Employment Commencement Date.
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2.3 WebMD Stock Options.
(a) On the Employment Commencement Date, subject to the approval of the Compensation
Committee of the Board of Directors of WebMD Corporation (“WebMD”), you will be granted a
nonqualified option to purchase 160,000 shares of WebMD common stock (the “WebMD Option”) at an
exercise price equal to the closing price of WebMD’s common stock on the Employment Commencement
Date. The WebMD Option shall be granted pursuant to the terms of a stock option agreement to be
entered into between WebMD and Executive, which agreement shall be in substantially the same form
provided by WebMD to its employees generally. The WebMD Option shall vest and become exercisable
in accordance with the following schedule: 25% shall vest on the first anniversary of the
Employment Commencement Date and 25% shall vest on each of the subsequent three anniversaries of
the Employment Commencement Date subject to Executive’s continued employment with the Company on
the applicable vesting date (except as provided in Section 4.4 below). The WebMD Option will have
a term of ten years subject to earlier expiration in the event of the termination of Executive’s
employment or in the event of a Sale of the Company (as defined below) or the consummation of an
initial public offering of more than 50% of the voting stock of the Company (including by virtue of
an exchange offer, a “Public Offering”).
(b) In the event of a Sale or a Public Offering of the Company during the Employment Period,
(i) the vested portion of the Option (if any) will remain outstanding through the first anniversary
of the date on which the Sale or the Public Offering of the Company occurred and (ii) the unvested
portion of the WebMD Option will be forfeited in accordance with its normal terms without any
payment made therefore. For purposes hereof, a “Sale” of the Company means (i) if any person,
entity or group other than the Company or any benefit plan thereof, and their respective affiliates
(a “Third Party”), shall have acquired at least 50% of the voting power of the outstanding voting
securities of all or substantially all of the Company or (ii) a reorganization, merger or
consolidation of all or substantially all of the Company with a Third Party, or (iii) a sale or
other disposition of all or substantially all of the assets of the Company to a Third Party. For
purposes of this provision, the Company shall include its subsidiary companies, Porex Corporation,
Porex GmHB, Porex Bio Products, Inc., Porex Medical Products, Inc., Porex Surgical Inc., Mupor
Limited, Porex UK, Porex New York, Inc. and Outpatient Services, and any other company currently
part of the Porex group of companies.
(c) In the event of a “Sale of WebMD” (as defined below) prior to the consummation of a
Public Offering or Sale of the Company, (i) the WebMD Option will vest in full on the first
anniversary of the date on which the Sale of WebMD occurred so long as Executive remains in the
employ of the Company on such date and (ii) if Executive’s employment is terminated by the Company
without Cause or by him for Good Reason prior to the first anniversary of the date on which the
Sale of WebMD occurred, the WebMD Option would vest on the date of termination; provided, however,
that no such acceleration will occur in the event that a Public Offering of the Company occurs
during such one year period. For purposes hereof, a “Sale of WebMD” means (i) if any person,
entity or group other than WebMD or any benefit plan thereof, and their respective affiliates (a
“Third Party of WebMD”), shall have acquired at least 50% of the voting power of the outstanding
voting securities of all or substantially all of WebMD or (ii) a reorganization, merger or
consolidation of all or substantially all of WebMD with a Third Party of WebMD where a majority of
the directors of WebMD prior to such reorganization, merger or consolidation do not constitute a
majority of the board of directors of the surviving corporation, or (iii) a sale or other
disposition of all or substantially all of the assets of WebMD to a Third Party of WebMD.
2.4 Company Stock Options.
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(a) In the event of a Public Offering, the Company shall recommend to the Compensation
Committee of the Board of Directors of the Company (the “Compensation Committee”) that
Executive be granted a nonqualified option (the “New Stock Option”) to purchase 160,000
shares of the Company’s common stock. The New Stock Option grant assumes a capitalization of 15
million shares upon the consummation of a Public Offering. The number of New Stock Options shall be
adjusted proportionately in the event the capitalization of the Company upon the consummation of a
Public Offering is different than the 15 million shares assumed above. The New Options shall be at
an exercise price equal to the fair market value of the Company’s common stock (as determined by
the Compensation Committee) on the date of grant of the New Stock Option (the “Date of
Grant”). The New Stock Option shall be granted pursuant to the terms of a stock option
agreement to be entered into between the Company and Executive, which agreement shall be in
substantially the same form provided by the Company to its employees generally. The New Stock
Option shall vest and become exercisable, subject to his continued employment with the Company on
such dates (except as provided in Section 4.4 below) in accordance with the following schedule:
25% shall vest on the first anniversary of the Date of Grant and 25% shall vest on each of the
subsequent three anniversaries of the Date of Grant. The New Stock Option shall have a term of ten
years, provided that in the event of a termination of Executive’s employment with the Company,
subject to Section 4.4, that portion of the New Stock Option that was vested on the date of
termination shall remain outstanding for 90 days (one year in the event of termination because of
death or Permanent Disability (as defined below)) and the unvested portion shall be forfeited
without any payment made therefor.
(b) The Executive acknowledges that there is no assurance that a Public Offering will occur
and that if the Public Offering shall not occur, the Company shall have no obligation under this
Section 2.4.
(c) In the event of a Sale of the Company following the consummation of a Public Offering, (i)
the New Stock Option will vest in full on the first anniversary of the date on which the Sale
occurred so long as Executive remains in the employ of the Company (or the successor) on such date
and (ii) if Executive’s employment is terminated by the Company (or the successor) without Cause or
by him for Good Reason prior to the first anniversary of the date on which the Sale occurred, the
New Stock Option would vest on the date of termination.
2.5 Benefits. During the Employment Period, Executive shall be entitled to
participate, on the same basis and at the same level as other similarly situated executives of the
Company, in any group insurance, hospitalization, medical, health and accident, disability, fringe
benefit and tax-qualified retirement plans or programs of the Company now existing or hereafter
established to the extent that he is eligible under the general provisions thereof. Executive
shall be entitled to no less than four weeks of vacation time during each twelve-month fiscal year
of the Company during the Employment Period. The date or dates of such vacations shall be
selected by Executive having reasonable regard to the business needs of the Company. During the
Employment Period, the Company shall pay the annual premium associated with a term life insurance
policy with a face value equal to the difference between $1 million and the amount of life
insurance provided by the Company’s group life insurance policy so long as Executive is considered
a “standard risk” for purposes of such policy.
2.6 Car Allowance. During the Employment Period, Executive shall be entitled to a car
allowance of $1,000 per month.
2.7 Expenses. Pursuant to the Company’s customary policies in force at the time of
payment, Executive shall be promptly reimbursed, against presentation of vouchers or receipts
therefor, for all authorized expenses properly and reasonably incurred by him on behalf of the
Company or its Affiliates in the performance of his duties hereunder.
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2.8 Country Club Fees. During the Employment Period, the Company shall pay the
initiation fee (up to $10,000) and annual dues, including assessments, but excluding expenses,
applied for such year (up to $5,000 per year) for Executive’s membership in a country club of his
choice (subject to the approval of the Company which shall not unreasonably be withheld).
3 Employment Period. Executive’s employment under this Agreement shall commence as of
the Employment Commencement Date, and shall terminate on the fifth anniversary thereof, unless
terminated earlier pursuant to Section 4 (the “Initial Employment Period”). Unless written
notice of either party’s desire to terminate this Agreement has been given to the other party prior
to the expiration of the Initial Employment Period (or any one-month renewal thereof contemplated
by this sentence), the term of this Agreement shall be automatically renewed for successive
one-month periods (as it may be extended, the “Employment Period”).
4 Termination.
4.1 Termination by the Company for Cause. Executive’s employment with the Company may
be terminated at any time by the Company for Cause. Upon such a termination, the Company shall
have no obligation to Executive other than the payment of Executive’s earned and unpaid
compensation to the effective date of such termination.
For purposes of this Agreement, the term “Cause” shall mean any of the following:
| (i) | Executive’s failure to satisfactorily perform his duties in any material respect following written notice and a reasonable period of time (not in excess of 30 days) to correct such failure; | ||
| (ii) | Executive engaging in any misconduct, negligence, act of dishonesty, violence or threat of violence that is demonstrably injurious to the Company; | ||
| (iii) | Executive’s material breach of a Company policy, which breach is not cured (if susceptible to cure) following notice and a reasonable period of time (not in excess of 30 days) to correct such breach; | ||
| (iv) | Any material breach by Executive of this Agreement, which breach is not cured (if susceptible to cure) following written notice and a reasonable period of time (not in excess of 30 days) to correct such breach; | ||
| (v) | Executive’s failure to adhere to the lawful instructions of the Chairman of the Board of Directors of the Company; or | ||
| (vi) | Executive’s commission of a felony in respect of a dishonest or fraudulent act or other crime of moral turpitude involving the Company, or which could reflect negatively upon the Company or otherwise impair or impede its operations. |
4.2 Permanent Disability. If during his employment with the Company, (i) Executive
shall become ill, mentally or physically disabled, or otherwise incapacitated so as to be unable
regularly to perform the duties of his position for a period in excess of 90 consecutive days or
more than 120 days in any consecutive 12 month period, or (ii) a qualified independent physician
determines that Executive is mentally or physically disabled so as to be unable to regularly
perform the duties of his position and such condition is expected to be of a permanent duration (a
“Permanent Disability”), then the Company shall have the right to terminate Executive’s
employment with the Company upon written
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notice to Executive. Upon such a termination, the Company shall have no obligation to
Executive other than the payment of Executive’s earned and unpaid compensation to the effective
date of such termination and acceleration of the unvested portion of the WebMD Option or the New
Stock Option, if such options are outstanding at the time of termination. Such options would remain
outstanding and through the first anniversary of the date of such termination.
4.3 Death. Executive’s employment with the Company shall be deemed terminated by the
Company upon the death of Executive and the Company shall have no obligation to Executive or
Executive’s estate other than the payment of Executive’s earned and unpaid compensation to the
effective date of such termination and acceleration of the unvested portion of the WebMD Option or
the New Sock Option, if such options are outstanding at the time of termination. Such options would
remain outstanding through the first anniversary of the date of such termination.
4.4 Termination by the Company Without Cause; by Executive for Good Reason.
(a) Executive’s employment with the Company may be terminated at any time by the Company
without Cause or by Executive for Good Reason (as defined below). In the event that Executive’s
employment with the Company is terminated by the Company without Cause (not including by notice of
the Company pursuant to Section 3 of its desire to not renew this Agreement), or if Executive
resigns from such employment for Good Reason (either of the foregoing a “Qualifying
Termination”), the Company shall have no obligation to Executive other than (subject to
Executive’s continued compliance with his obligations under this Agreement): (i) the payment of
Executive’s earned and unpaid compensation to the effective date of such Qualifying Termination;
(ii) a continuation of Executive’s Base Salary (at the rate in effect at the time of such
Qualifying Termination) for a period (the “Severance Period”) commencing on the date of
termination and ending on the second anniversary of the date of termination; (iii) with respect to
Executive’s rights under Section 4980B(f) of the Internal Revenue Code of 1986, as amended
(relating to “COBRA” coverage), the payment by the Company during the eighteen month period
following the date of termination (or, if earlier, until Executive is eligible for comparable
coverage with a subsequent employer) of the employer’s portion of the applicable premium that is
paid by the Company for similarly situated active employees who receive the same type of coverage
(to the extent he remains eligible for COBRA); (iv) if such termination occurs prior to a Sale or a
Public Offering, the WebMD Option shall remain outstanding and continue to vest as if Executive
remained in the employ of the Company through the end of the Severance Period and (v) if such
termination occurs subsequent to a Public Offering the New Stock Option (if any had been granted)
shall remain outstanding and continue to vest as if Executive remained in the employ of the Company
through the end of the Severance Period. All of such payments and any further vesting will cease
in the event of any breach by Executive of any provision of this Agreement (including, without
limitation, the provisions of Section 5).
(b) For purposes of this Agreement, the term “Good Reason” shall mean any of the
following conditions or events which condition(s) or event(s) remain in effect 30 days after
written notice is provided by Executive to the Company detailing such condition or event:
| (i) | any reduction in Base Salary; | ||
| (ii) | any material breach by the Company of this Agreement; or | ||
| (iii) | the relocation of Executive’s place of work to a location more than 50 miles from his work location as of the Employment Commencement Date, provided that the place of relocation also is at a further distance from Executive’s residence than is his work location as of the Employment Commencement Date. |
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4.5 Termination by Executive Without Good Reason. Executive may resign from his
employment with the Company without Good Reason, provided that Executive shall provide the Company
with ninety (90) days advance written notice (which notice requirement may be waived, in whole or
in part, by the Company in its sole discretion) of his intent to terminate without Good Reason.
Upon such a termination, the Company shall have no obligation other than the payment of Executive’s
earned but unpaid compensation to the effective date of such termination.
4.6 Expiration of the Employment Period. Following the expiration of the Initial
Employment Period, in the event Executive’s employment is terminated by the Company, the Company
shall have no obligation to Executive other than the continuation of Executive’s Base Salary (at
the rate in effect at the time of such termination) through the first anniversary of the date of
termination. Such payments will cease upon a breach by Executive of any provisions of this
Agreement that survive the expiration of the Employment Period.
4.7 Liquidated Damages. Executive acknowledges that any payments and benefits under
Section 4 resulting from a termination of his employment with the Company are in lieu of any and
all claims that Executive may have against the Company (other than benefits under the Company’s
employee benefit plans that by their terms survive termination of employment, benefits under COBRA
and rights to indemnification under certain indemnification arrangements for officers of the
Company), and represent liquidated damages (and not a penalty). As a condition to receiving the
payments and benefits set forth in this Section 4 upon a Qualifying Termination or the expiration
of the Employment Period, Executive shall be required to confirm such acknowledgment in writing and
execute and not revoke a waiver and release of claims, in the form provided by the Company.
5 Covenants.
5.1 Confidentiality. (a) The Company and its Affiliates develop, manufacture and
distribute proprietary porous and solid plastic products and components throughout the world. The
Company’s proprietary technology and manufacturing capabilities enable it to produce a wide variety
of components that are also used in industrial and consumer applications. The Company’s finished
products are used in the medical device, life science, research, clinical laboratory and surgical
markets. The Company also makes components and devices that are incorporated into products of
other manufacturers. Executive acknowledges that the success of the Company and its Affiliates is
dependent on developing and maintaining a considerable body of highly valuable Trade Secrets and
Confidential Information (as such terms are defined below), the continued secrecy and
confidentiality of which are crucial to their success and that the success of the Company and its
Affiliates is also dependent upon providing consistently good products to its customers,
engendering goodwill among its customers, and developing and strengthening business relationships
with current and prospective customers. To further such objectives, Executive, in the performance
of his duties for the Company, will have access to Trade Secrets and Confidential Information and
shall have substantial contact with customers of the Company and/or its Affiliates.
(b) Executive acknowledges that the covenants contained herein are reasonable and necessary to
protect Trade Secrets, Confidential Information and the goodwill of the Company and its Affiliates
and that he is capable of obtaining gainful, lucrative and desirable employment that does not
violate the restrictions contained in this Agreement.
(c) As used in this Agreement, the term “Trade Secrets” shall mean all secret,
proprietary or Confidential Information regarding the Company or its Affiliates that fits within
the definition of “trade secrets” under the Georgia Trade Secrets Act. Nothing in this Agreement
is intended, or shall be construed, to limit the definitions or protections of the Georgia Trade
Secrets Act or any other
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applicable law protecting trade secrets or other confidential information. “Trade Secrets”
shall not include information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right or privilege of Company.
(d) As used in this Agreement, the term “Confidential Information” shall mean all
information regarding the Company and its Affiliates and the activities of the Company and its
Affiliates that do not rise to the level of a trade secret, but are not generally known to persons
not employed by the Company and its Affiliates, are not generally disclosed by Company practice or
authority to persons not employed by the Company or its Affiliates and are the subject of
reasonable efforts to keep it confidential. Without limiting the generality of the foregoing,
Confidential Information shall include, but not be limited to, product concepts, production
techniques, pricing data, technical information relating to the Company’s products, production
processes and product development, product formulas, purchase and supply information, information
concerning current and future development and expansion or contraction plans, sale/acquisition
plans and contacts, marketing plans and contacts, information concerning the compensation and
effectiveness of employees, legal affairs and certain information concerning the strategy, tactics
and financial affairs of the Company and its Affiliates. “Confidential Information” shall
not include information that has become generally available to the public by the act of one who has
the right to disclose such information without violating any right or privilege of the Company.
This definition shall not limit any definition of “confidential information” or any equivalent term
under the Georgia Trade Secrets Act or any other state, local or federal law. Without limiting the
generality of the foregoing, “Confidential Information” and “Trade Secrets” shall include
Confidential Information and Trade Secrets of WebMD.
(e) During Executive’s employment by the Company and for a period of five (5) years after
Executive’s employment with the Company terminates for any reason, Executive shall not directly or
indirectly transmit or disclose any Confidential Information to any person, concern or entity,
except as required to fulfill his duties hereunder, and will not misuse, misappropriate or exploit
such Confidential Information in any way. During the term of this Agreement and perpetually
thereafter, for so long as the information remains a Trade Secret, Executive shall not directly or
indirectly, for himself or for others, transmit or disclose any Trade Secret to any person, concern
or entity, except as required to fulfill his duties hereunder, and will not misuse, misappropriate
or exploit such Trade Secret in any way.
(f) Executive agrees that at any time during the Employment Period or thereafter, Executive
shall not make, or cause or assist any other person to make, any statements or other communications
to any third party that impugns or attacks, or is otherwise critical of, the reputation, business
or character of the Company, its Affiliates or any of their respective officers, director,
employees, products or services.
5.2 Rights to Materials and Return of Materials.
All records, files, software, software code, memoranda, reports, price lists, customer lists,
drawings, plans, sketches, documents, technical information, information on the use, development
and integration of software, and the like (together with all copies of such documents and things)
relating to the Company’s business or containing Confidential Information or Trade Secrets, which
Executive shall use or prepare or come in contact with in the course of, or as a result of,
Executive’s employment by the Company shall, as between the parties to this Agreement, remain the
sole property of the Company. Laptop computers, other computers, software and related data,
information and things provided to Executive by the Company or obtained by Executive, directly or
indirectly, from the Company, also shall remain the sole property of the Company. Upon the
termination of Executive’s employment or upon the prior demand of the Company, Executive shall
immediately return all such materials and things to the
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Company and shall not retain any copies or remove or participate in removing any such
materials or things from the premises of the Company after termination or the Company’s request for
return.
5.3 Inventions, Discoveries and Improvements.
(a) All Developments (as defined below) that are at any time made, conceived or suggested by
Executive, whether acting alone or in conjunction with others, during or as a result of Executive’s
employment with the Company or its Affiliates, shall be the sole and absolute property of the
Company and its Affiliates, free of any reserved or other rights of any kind on Executive’s part.
During the Executive’s employment and, if such Developments were made, conceived or suggested by
Executive during or as a result of Executive’s employment with the Company, or its Affiliates,
thereafter, Executive shall promptly make full disclosure of any such Developments to the Company
and, at the Company’s cost and expense, do all acts and things (including, among others, the
execution and delivery under oath of patent and copyright applications and instruments of
assignment) deemed by the Company to be necessary or desirable at any time in order to effect the
full assignment to the Company and its Affiliates of Executive’s right and title, if any, to such
Developments. For purposes of this Agreement, the term “Developments” shall mean all data,
discoveries, findings, reports, designs, plans, inventions, improvements, methods, practices,
techniques, developments, programs, concepts, and ideas, whether or not patentable, relating to the
present or planned activities, or future activities of which Executive is aware, or the products
and services of the Company or any of its Affiliates.
(b) If a patent application or copyright registration is filed by Executive or on Executive’s
behalf during Executive’s employment with the Company or within one (1) year after Executive’s
leaving the Company’s employ, describing a Development within the scope of Executive’s work for the
Company or which otherwise relates to a portion of the Company’s business of which Executive had
knowledge during Executive’s employment with the Company, it is to be conclusively presumed that
the Development was conceived by Executive during the period of such employment.
5.4 Restrictions on Solicitation. (a) During the period beginning on the Employment
Commencement Date and ending on the second anniversary of the date of cessation of the employment
of the Executive for any reason whatsoever (the “Restricted Period”), Executive shall not,
without the prior written permission of the Company, directly or indirectly, solicit, induce or
attempt to induce any employees or agents of the Company or its Affiliates with whom Executive has
had Material Contact (as defined below) to do anything from which Executive is restricted by reason
of this Agreement nor shall Executive solicit, induce or aid others to solicit or induce any
employees or agents of the Company or its Affiliates with whom Executive has had Material Contact
to terminate their employment with the Company or its Affiliates and/or to enter into an employment
or agency relationship with the Executive or any other person or entity with whom Executive is
affiliated.
(b) During the Restricted Period, Executive shall not, directly or indirectly, without the
prior written approval of the Company, solicit or contact any customer or potential customer with
which Executive has had any Material Contact for the purpose of providing such customer or
potential customer products or services that are the same as or substantially similar to those
provided or offered to be provided by the Company.
(c) For purposes of this Agreement, Executive had “Material Contact” with an employee,
agent or customer if, during the twelve (12) month period prior to the termination of Executive’s
employment, (i) Executive had business dealings with the employee, agent, customer or potential
customer on behalf of the Company or its Affiliates; or (ii) Executive was responsible for
supervising or coordinating dealings between the Company or its Affiliates, and the customer or
potential
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customer; or (iii) Executive obtained Trade Secrets or Confidential Information about the
customer or potential customer as a result of his employment with the Company.
5.5 Restrictions on Competitive Employment. (a) During the Restricted Period,
Executive shall not, in any state in the United States where the Company or its Affiliates
(excluding WebMD) conduct business, directly or indirectly, without the prior written approval of
the Company, engage in a Competitive Position (as defined below) with, or own an interest in, any
firm or business that is (i) engaged in competition with the Company or any of its Affiliates
(excluding WebMD), or (ii) developing products or services competitive with those of the Company or
any of its Affiliates (excluding WebMD) (each of the businesses described in clauses (i) and (ii) a
“Competitive Business”). Notwithstanding the foregoing, Executive may have an interest
consisting of publicly traded securities constituting less than 1 percent of any class of public
traded securities in any public company engaged in a Competitive Business provided that he is not
employed by and does not consult with, or become a director of or otherwise engage in any
activities for such company. For purposes of this Agreement, “Competitive Position” shall
mean any service rendered to a Competitive Business (as a principal, agent, employee, consultant or
otherwise) in which Executive will use or is likely to use any Confidential Information or Trade
Secrets and in which Executive has duties to such company engaged in a Competitive Business that
are the same or similar to those actually performed by Executive for the Company.
(b) For purposes of the covenant not to compete set forth in Section 5.5(a) above, Executive
acknowledges that the Company and its Affiliates presently conduct their businesses throughout the
United States, Europe and Asia. Executive agrees that the Restricted Period and the geographical
areas encompassed by such covenant are necessary and reasonable in order to protect the Company in
the conduct of its business.
5.6 Remedies. Executive acknowledges and agrees that the non-disclosure,
non-solicitation and non-competition covenants contained in this Agreement are a reasonable means
of protecting the Company and its Affiliates from unfair competition by Executive. Executive
acknowledges and agrees that damages for a breach or threatened breach of any of the covenants set
forth in this Section 5 will be difficult to determine and will not afford a full and adequate
remedy, and therefore agrees that the Company, in addition to seeking actual damages in connection
therewith, may seek specific enforcement of any such covenant in any court of competent
jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction
without the necessity of posting a bond.
6 Notices.
Any notice or communication given by either party hereto to the other shall be in writing and
personally delivered or mailed by registered or certified mail, return receipt requested, postage
prepaid, to the following addresses:
if to the Company:
Porex Holdings, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
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WebMD Corporation
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
if to the Executive:
Xxxxxxx X. Xxxxxxxx
[address]
[address]
Any notice shall be deemed given when actually delivered to such address, or two days after
such notice has been mailed or sent by Federal Express, whichever comes earliest. Any person
entitled to receive notice may designate in writing, by notice to the other, such other address to
which notices to such person shall thereafter be sent.
7 Miscellaneous.
7.1 Representations and Covenants. In order to induce the Company to enter into this
Agreement, Executive makes the following representations and covenants to the Company and
acknowledges that the Company is relying upon such representations and covenants:
(a) No agreements or obligations exist to which the Executive is a party or otherwise bound,
in writing or otherwise, that in any way interfere with, impede or preclude him from fulfilling all
of the terms and conditions of this Agreement.
(b) Executive, during his employment, shall use his best efforts to disclose to the Chairman
of the Board of the Company in writing or by other effective method any bona fide information known
by him and not known to the Chairman of the Board of the Company that he reasonably believes would
have any material negative impact on the Company or an Affiliate.
7.2 Entire Agreement. This Agreement and the stock option agreements referenced in
Sections 2.3 and 2.4 contain the entire understanding of the parties in respect of their subject
matter and supersede upon their effectiveness all other prior agreements and understandings between
the parties with respect to such subject matter.
7.3 Amendment; Waiver. This Agreement may not be amended, supplemented, canceled or
discharged, except by written instrument executed by the party against whom enforcement is sought.
No failure to exercise, and no delay in exercising, any right, power or privilege hereunder shall
operate as a waiver thereof. No waiver of any breach of any provision of this Agreement shall be
deemed to be a waiver of any preceding or succeeding breach of the same or any other provision.
7.4 Binding Effect; Assignment. The rights and obligations of this Agreement shall
bind and inure to the benefit of any successor of the Company by reorganization, merger or
consolidation, or any assignee of all or substantially all of the Company’s business and
properties. The Company may assign its rights and obligations under this Agreement to any of its
Affiliates without the consent of the Executive. Executive’s rights or obligations under this
Agreement may not be assigned by Executive.
7.5 Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
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7.6 Governing Law; Interpretation. This Agreement shall be construed in accordance
with and governed for all purposes by the laws and public policy (other than conflict of laws
principles) of the State of Georgia applicable to contracts executed and to be wholly performed
within such State.
7.7 Further Assurances. Each of the parties agrees to execute, acknowledge, deliver
and perform, and cause to be executed, acknowledged, delivered and performed, at any time and from
time to time, as the case may be, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary to carry out the
provisions or intent of this Agreement.
7.8 Severability. The parties have carefully reviewed the provisions of this
Agreement and agree that they are fair and equitable. However, in light of the possibility of
differing interpretations of law and changes in circumstances, the parties agree that if any one or
more of the provisions of this Agreement shall be determined by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall, to
the extent permitted by law, remain in full force and effect and shall in no way be affected,
impaired or invalidated. Moreover, if any of the provisions contained in this Agreement are
determined by a court of competent jurisdiction to be excessively broad as to duration, activity,
geographic application or subject, it shall be construed, by limiting or reducing it to the extent
legally permitted, so as to be enforceable to the extent compatible with then applicable law.
7.9 Withholding Taxes. All payments hereunder shall be subject to any and all
applicable federal, state, local and foreign withholding taxes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| POREX HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | President | |||
| EXECUTIVE |
||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
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