EXHIBIT 10.11
EMPLOYMENT AGREEMENT
BY AND BETWEEN
TRIAD MEDICAL INC.
AND XXXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into on
September 9, 1997, between TRIAD Medical Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxx, an individual (the "Executive").
RECITALS
WHEREAS, the Company has been formed to engage, and to acquire
businesses that are engaged, in the business of selling and distributing
specialty medical products and equipment to hospitals and alternative site
healthcare service companies and providers, such as but not limited to,
sub-acute care facilities, nursing facilities, home healthcare providers and
physician groups (the "Business");
WHEREAS, on the date of this Agreement, the Company, Custom Acquisition,
Inc., a wholly owned subsidiary of the Company (the "Merger Subsidiary"), Custom
Medical Specialities, Inc., a Indiana corporation (the "Acquired Company"), and
the stockholders of the Acquired Company, are entering into an Agreement and
Plan of Reorganization (the "Acquisition Agreement"), under which the Acquired
Company will merge with the Merger Subsidiary in a merger (the "Merger") of
which the Acquired Company will be the surviving corporation and as a result of
which the Acquired Company will become a wholly owned subsidiary of the Company;
WHEREAS, the Executive is a stockholder and/or serves as a director,
officer and/or employee of the Acquired Company;
WHEREAS, the Company wishes to employ the Executive effective upon
consummation of the Merger, and the Executive is willing to accept such
employment, on the terms and conditions of this Agreement; and
WHEREAS, the respective agreements of the Company and the Executive set
forth herein are ancillary to the Company's acquisition of the Acquired Company,
and the Company, as a condition to its entering into the Acquisition Agreement
and consummating the Merger, is requiring that the Executive agree to the
provisions of this Agreement which restrict the Executive from competing with
the Company;
AGREEMENT
NOW, THEREFORE, in consideration of the Company agreeing to employ the
Executive and the mutual promises and covenants set forth herein, to induce the
Company to enter into the Acquisition Agreement and to consummate the Merger,
and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the Company and the Executive
agree as follows:
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1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY THE COMPANY. The Company agrees to employ the
Executive as Regional President, Midwest Region of the Company for the duration
of the Employment Term (as hereinafter defined in Section 2 below), to render
such services and to perform such duties as are customarily attendant to such
position, as well as such other duties commensurate with his position as Xxxxxxx
President, Midwest Region, as shall from time to time reasonably be requested by
the Board of Directors of the Company (the "Board of Directors") or the officers
of the Company senior to the Executive.
1.2 ACCEPTANCE OF EMPLOYMENT BY THE EXECUTIVE. The Executive
hereby accepts such employment for the Employment Term and agrees to render the
services required of him under Section 1.1. During the Employment Term, the
Executive shall devote his full business time, attention and energy to the
business of the Company and the performance of his duties under this Agreement.
The foregoing shall not, however, prohibit the Executive from making and
managing personal investments, or from engaging in civic or charitable
activities, that do not materially impair the performance of his duties under
this Agreement. If appointed or elected, as applicable, the Executive also shall
serve during all or any part of the Employment Term as any other officer and/or
as a director of the Company or any of its subsidiaries or affiliates, without
any additional compensation other than that specified in this Agreement.
1.3 PLACE OF PERFORMANCE. The Executive shall be based in the
Greater Indianapolis Metropolitan Area, and nothing in this Agreement shall
require the Executive to relocate his base of employment or principal place of
residence from the Greater Indianapolis Metropolitan Area.
1.4 TERMINATION OF EXISTING CONTRACTS. The Executive agrees that
all agreements and contracts, whether written or oral, relating to the
employment of the Executive by the Acquired Company, or any of its subsidiaries
and affiliates, shall be terminated effective as of the commencement of the
Employment Term. However, nothing in this Section 1.4 shall (i) affect accrued
vacation, holiday or sick pay accruals (but only to the extent such accruals
were reflected in the Acquired Company's financial statements), or (ii) require
the Acquired Company to cease to make available to the Executive, and, subject
to his meeting all applicable eligibility requirements, the Executive shall be
entitled to continue to be covered under, all group health, medical and dental
insurance policies, plans and programs maintained by the Acquired Company for
its employees generally, in each case until replacement coverage is provided by
the Company, or (iii) impair or adversely affect any indemnification rights that
Executive may have under statutes empowering corporations in the Acquired
Company's state of incorporation to indemnify their officers and directors, or
under the Acquired Company's bylaws or any written indemnification agreement
between the Executive and the Acquired Company implementing such statutory
indemnification rights, but only with respect to third party claims or
proceedings that relate to actions taken by Executive as an officer or director
of the Acquired Company prior to the date hereof and are disclosed in the
Disclosure Statement to the Acquisition Agreement or, if asserted or brought for
the first time after the date hereof, would not constitute a breach of the
representations or warranties of the Acquired Company or its Stockholders under
the Acquisition Agreement.
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2. EMPLOYMENT TERM. The term of the Executive's employment under this
Agreement (the "Employment Term") shall commence on the date of consummation of
the Merger pursuant to the Acquisition Agreement (the "Commencement Date"), at
the Effective Time (as that term is defined in the Acquisition Agreement), and
shall continue through and expire on the third anniversary of the Commencement
Date (the "Expiration Date"), unless earlier terminated as herein provided.
However, if the Acquisition Agreement is terminated under the terms of its
Article XII, then this Agreement shall also terminate, automatically and without
the requirement of any action on the part of either of its parties.
3. COMPENSATION AND OTHER BENEFITS.
3.1 ANNUAL SALARY. As compensation for services to be rendered
under this Agreement, the Company shall pay the Executive a salary (the "Annual
Salary"), subject to such increases as the Board of Directors may, in its
discretion, approve, at a rate of $150,000 per annum. The Executive shall also
be eligible, during the Employment Term, to receive such other compensation,
whether in the form of cash bonuses, incentive compensation, stock options,
stock appreciation rights, restricted stock awards or otherwise (collectively,
the "Additional Compensation"), as the Board of Directors (or any committee of
the Board) may, in its discretion, approve and as are generally made available
to other members of the Company's Management holding comparable positions with
the Company. The Annual Salary and the Additional Compensation shall be payable
in accordance with the applicable payroll and/or other compensation policies and
plans of the Company as in effect from time to time, less such deductions as
shall be required to be withheld by applicable law and regulations.
3.2 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive shall
be permitted, during the Employment Term, if and to the extent eligible, to
participate in any group life, hospitalization or disability insurance plan,
health program, pension plan, vacation programs, similar benefit plan or other
"fringe benefits" of the Company, which may be available to all other members of
the Company's management on generally the same terms.
3.3 EXECUTIVE SUPPORT. The Company shall provide to the Executive
office facilities, furniture, fixtures and equipment, secretarial and support
personnel and other management level support services as the Executive shall
reasonably request in connection with his performance of his obligations under
this Agreement.
3.4 REIMBURSEMENT OF BUSINESS EXPENSES. The Executive may incur
reasonable, ordinary and necessary business expenses in the course of his
performance of his obligations under this Agreement, including expenses for
travel, food and entertainment. The Company shall reimburse the Executive for
all such business expenses if (i) such expenses are incurred by the Executive in
accordance with the Company's business expense reimbursement policy, if any, as
may be established and modified by the Company from time to time, and (ii) the
Executive provides to the Company a record of and appropriate receipts for (A)
the amount of the expense, (B) the date, place and nature of the expense, (C)
the business reason for the expense and (D) the names, occupations and other
data concerning individuals entertained sufficient to establish their business
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relationship to the Company. The Company shall have no obligation to reimburse
the Executive for expenses that are not incurred and substantiated as required
by this Section 3.4.
3.5 AUTOMOBILE. The Company shall provide the Executive with the
use of a Company-owned or leased automobile for use by the Executive in
connection with the performance of his duties under this Agreement, and shall
pay the reasonable costs of insuring, operating and maintaining the automobile,
or, in lieu thereof the Company at its option may pay to the Executive an
automobile allowance to help defray the Executive's cost of owning and operating
a personal automobile for such purpose. Such Company furnished automobile or
such allowance shall be comparable to the automobile or allowance that was taken
into account in determining the Merger Consideration that is to be paid by the
Company to the Acquired Company's stockholders pursuant to the Acquisition
Agreement.
4. NON-COMPETITION.
4.1 COVENANTS AGAINST COMPETITION. The Executive acknowledges
that (i) the Company, which for purposes of this Section 4 includes TRIAD
Medical Inc. and all of its present and future subsidiaries and affiliates,
including such subsidiaries and affiliates as may be formed or incorporated
during the Restricted Period (as defined in Section 4.1.1), is engaged in the
business described in the Recitals set forth on the first page of this Agreement
(the "Business"); (ii) the Executive is one of a limited number of persons who
has performed a significant role in developing the Business; (iii) the Business
is conducted throughout the United States; (iv) his work for the Acquired
Company has given him, and his work for the Company will continue to give him,
trade secrets of, and confidential information concerning, the Company; (v) the
agreements and covenants contained in this Section 4 (collectively, the
"Restrictive Covenants") are essential to protect the Business and the goodwill
of the Company; (vi) he has means to support himself and his dependents other
than by engaging in the Business in violation of the Restrictive Covenants and
(vii) the Restrictive Covenants will not impair such ability. Accordingly, the
Executive agrees as follows:
4.1.1 NON-COMPETE. During the Restricted Period, the
Executive shall not (A) engage, anywhere within the Territory (as
hereinafter defined), as an officer, director or in any other managerial
capacity or as an owner, co-owner or other investor or creditor in or
of, or as an employee, independent contractor, consultant or advisor, or
as a sales or manufacturer's representative or distributor of any kind,
in any business selling any products or providing any services which are
sold or offered by the Company, or have previously been sold or offered
by the Company, or any of its then current or prior vendors or
suppliers, on the date the Executive's employment is terminated, or (B)
call on any person or entity, whose offices are located within the
Territory, that at the time is, or at any time within one year prior to
the date of termination of the Executive's employment was, a customer of
the Company, if the Executive has knowledge of that customer
relationship, PROVIDED, HOWEVER, that nothing in this Section 4.1.1
shall prohibit the Executive from owning, directly or indirectly, solely
as an investment, securities of any entity traded on any national
securities exchange or over-the-counter market if the Executive is not a
controlling person of, or a member of a group which controls, such
entity and does not, directly or indirectly, own five percent or more of
any class of securities of such entity. As used in this Section 4, the
term "Territory"
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shall mean a radius of 100 miles around the principal office at which
the Executive is employed on the Commencement Date. As used in this
Section 4, the term "Restricted Period" means the period beginning on
the Commencement Date and ending:
(i) if during the Employment Term the Executive's
employment terminates as a result of (a) a termination for Cause
under Section 5.2 or (b) the Executive's voluntary resignation,
the fourth anniversary of the Commencement Date;
(ii) if during the Employment Term the Executive's
employment terminates as a result of (a) a termination without
Cause under Section 5.3 or (b) a termination for disability under
Section 5.4, the latest to occur of (a) expiration of the
Severance Benefit Period (as defined in Section 5.5) or (b) the
third (3rd) anniversary of the Commencement Date; or
(iii) if after the Employment Term the Executive's
employment terminates for any reason, the latest to occur of (a)
the fourth (4th) anniversary of the Commencement Date if he is
not eligible for severance benefits under Section 5.5 or (b) the
expiration of the Severance Benefit Period if the Executive is
eligible for severance benefits under Section 5.5.
4.1.2 CONFIDENTIAL INFORMATION; PERSONAL RELATIONSHIPS.
During the Restricted Period and thereafter, the Executive shall keep
secret and retain in strict confidence, and shall not use for the
benefit of himself or others, all confidential matters of the Company,
including, without limitation, "know-how," trade secrets, customer
lists, details of client or consultant contracts, pricing policies,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans, new personnel
acquisition plans, methods of production and distribution, technical
processes, designs and design projects, inventions and research projects
of the Company learned by the Executive heretofore or during the
Restricted Period.
4.1.3 PROPERTY OF THE COMPANY. All memoranda, notes,
lists, records and other documents or papers (and all copies thereof),
including such items stored in computer memories, on microfiche or by
any other means, made or compiled by or on behalf of the Executive, or
made available to the Executive relating to the Company, other than
purely personal matters, are and shall be the Company's property and
shall be delivered to the Company promptly upon the termination of the
Executive's employment (whether such termination is for Cause, as
hereinafter defined, or otherwise) or at any other time on request of
the Company.
4.1.4 EMPLOYEES OF THE COMPANY. During the Restricted
Period and thereafter for as long as the Executive shall remain an
employee of or consultant to the Company, the Executive shall not,
directly or indirectly, hire or solicit any employee or independent
sales agent of the Company away from the Company or encourage any such
employee or agent to leave such employment.
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4.1.5 CONSULTANTS OF THE COMPANY. During the Restricted
Period and thereafter for as long as the Executive shall remain an
employee of or consultant to the Company, the Executive shall not,
directly or indirectly, hire or solicit any consultant then under
contract with the Company or encourage such consultant to terminate such
relationship.
4.1.6 ACQUISITION CANDIDATES. During the Restricted Period
and thereafter for as long as the Executive shall remain an employee of
or consultant to the Company, the Executive shall not call on any
Acquisition Candidate (as defined below in this Section 4.1.6), with the
knowledge of such Acquisition Candidate's status as such, for the
purpose of acquiring, or arranging the acquisition of, that Acquisition
Candidate by any person or entity other than the Company. In this
Section 4.1.6 "Acquisition Candidate" means any person or entity engaged
in any of the businesses of distributing medical or healthcare products
to hospitals, clinics, physicians, laboratories, pharmacies, alternate
care sites or other medical or healthcare facilities or conceiving,
designing, developing or testing technologically advanced medical or
healthcare products, and (i) which was called on by the Company, in
connection with the possible acquisition by the Company of that person
or entity, or (ii) with respect to which the Company has made an
acquisition analysis.
4.2 RIGHTS AND REMEDIES UPON BREACH. If the Executive breaches or
threatens to commit a breach of the Restrictive Covenants, the Company shall
have the following rights and remedies, each of which shall be independent of
the others and severally enforceable, and each of which is in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity:
4.2.1 SPECIFIC PERFORMANCE. The right and remedy to have
the Restrictive Covenants specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to
the Company and that money damages would not provide an adequate remedy
to the Company.
4.2.2 ACCOUNTING. The right and remedy to require the
Executive to account for and pay over to the Company all compensation,
profits, monies, accruals, increments or other benefits derived or
received by the Executive as the result of any transaction constituting
a breach of the Restrictive Covenants.
4.3 SEVERABILITY OF COVENANTS. The Executive acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in geographical
and temporal scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
4.4 REFORMATION. If any court determines that any Restrictive
Covenant, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, such
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court shall have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be
enforceable.
4.5 ENFORCEABILITY IN JURISDICTIONS. The Company and the
Executive intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
the Restrictive Covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants unenforceable by reason of the
breadth of such scope or otherwise, it is the intention of the Company and the
Executive that such determination not bar or in any way affect the Company's
right to the relief provided above in the courts of any other jurisdiction
within the geographical scope of the Restrictive Covenants, as to breaches of
such covenants in such other respective jurisdictions, such covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
5. TERMINATION.
5.1 TERMINATION UPON DEATH. If the Executive dies during the
Employment Term, this Agreement shall terminate, except that the Executive's
legal representatives, successors, heirs or assigns shall be entitled to receive
the Annual Salary, the Additional Compensation and other accrued benefits, if
any, earned up to the date of the Executive's death; PROVIDED, HOWEVER, if any
Additional Compensation or other benefits are governed by the provisions of any
written employee benefit plan or policy of the Company, any written agreement
contemplated thereunder or any other separate written agreement entered into
between the Executive and the Company, the terms and conditions of such plan,
policy or agreement shall control in the event of any discrepancy or conflict
with the provisions of this Agreement regarding such Additional Compensation or
other benefit upon the death, termination or disability of the Executive.
5.2 TERMINATION FOR CAUSE. At any time during the Employment
Term, the Company shall have the right, exercisable by serving notice effective
in accordance with its terms, to terminate the Executive's employment under this
Agreement and discharge the Executive for Cause. If such right is exercised, the
Company's obligation to the Executive shall be limited to the payment of any
unpaid Annual Salary, Additional Compensation and other benefits, if any,
accrued up to the effective date specified in the Company's notice of
termination (which date shall not be retroactive). As used in this Section 5.2
and elsewhere in this Agreement, the term "Cause" shall mean that (i) there
shall have been a material breach by Executive of the terms of this Agreement
which either is not susceptible of cure or which is not cured within a period of
ten (10) days after notice thereof, and which shall include, without limitation,
the willful and continued failure or refusal by Executive to perform the
material duties for which he is employed or which are assigned to him hereunder
or chronic absenteeism; (ii) the Executive has knowingly, willfully and
persistently failed or refused to follow the reasonable policies and directives
established by the Board of Directors or executive officers of the Company
senior to the Executive; (iii) the Executive has wrongfully misappropriated
money or other assets or properties of the Company or any subsidiary or
affiliate of the Company, or has committed fraud; (iv) the Executive has been
convicted of or plead "nolo contendere" to any felony or other serious crime, or
has been convicted or has pleaded "nolo contendere" to a crime involving, or the
Company, or any subsidiary or affiliate thereof is held liable for monetary
damages by a court of competent jurisdiction as a result of the commission by
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Executive of, an act of moral turpitude; or (v) the Executive's alcoholism or
drug addiction, unless Executive agrees to seek treatment from a treatment
program approved by the Company and promptly commences and completes the
program. The determination on behalf of the Company as to whether "cause" exists
shall be made by a majority vote of the Company's Board of Directors.
5.3 TERMINATION WITHOUT CAUSE. At any time during the period
beginning on the first anniversary of the Commencement Date and continuing
through the end of the Employment Term, the Company, upon a determination that
is made by: (i) X. Xxxxxx Coop, in his capacity as president of the Company, or
(ii) the officer of the Company to whom the Executive directly reports, PROVIDED
THAT if such officer is not X. Xxxxxx Coop, in his capacity as President of the
Company, then such termination shall require the concurrence of either: (a) X.
Xxxxxx Coop, as president of the Company, or, (b) if X. Xxxxxx Coop is no longer
the President of the Company, the Board of Directors, shall have the right,
exercisable by serving notice effective in accordance with its terms, to
terminate the Executive's employment under this Agreement and discharge the
Executive without Cause. If such right is exercised, the Company's sole
obligation to the Executive, subject to applicable nonwaivable law, shall be as
set forth in Section 5.5 below.
5.4 TERMINATION UPON DISABILITY. If during the Employment Term
the Executive becomes physically or mentally disabled, whether totally or
partially, as evidenced by the written statement of a competent physician
licensed to practice medicine in the United States, so that the Executive is
unable to substantially perform his services hereunder for (i) a period of six
consecutive months, or (ii) for shorter periods aggregating six months during
any period of twelve consecutive months, subject to applicable law, the Company
may at any time after the last day of the six consecutive months of disability
or the day on which the shorter periods of disability equal an aggregate of six
months with a period of twelve consecutive months, by written notice to the
Executive, terminate the Executive's employment hereunder. If such right is
exercised, the Company's obligation to the Executive shall be as set forth in
Section 5.5 below.
5.5 SEVERANCE BENEFIT. If at any time during or after the
Employment Term, the Executive's employment by the Company is terminated for any
reason other than (i) a termination for Cause under Section 5.2, (ii) his
voluntary resignation, or (iii) his death, then for a period of one year
following the date of termination of the Executive's employment (the "Severance
Benefit Period"), the Company's sole obligation to Executive shall be to
continue to (a) pay to the Executive the amount of Annual Salary in effect at
the date of termination of his employment in installments, in accordance with
the Company's customary payroll and tax withholding policies and procedures,
over the twelve months immediately following such termination of employment, and
(ii) at the Company's expense, continue to include the Executive and his
eligible dependents under the coverage of all group health, medical and dental
insurance policies, plans and programs maintained by the Company during
Severance Benefit Period for the Company's employees, or management employees,
generally.
5.6 CONTINUATION OF HEALTH COVERAGE. If at any time during or
after the Employment Term, the Executive's employment by the Company is
terminated for any reason other than (i) a termination for Cause under Section
5.2, or (ii) his death, then for the period beginning on the date of expiration
of the Severance Benefit Period and continuing until the earlier to occur of (a)
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the Executive's obtaining other employment through which health, medical and
dental insurance coverage are available to him and (b) the Executive reaching
age 65, the Company will use all commercially reasonable efforts to make
available, or to cause to be made available, to the Executive and/or his
dependents, at his expense, health, medical and dental insurance coverage
comparable to the coverage that is generally available to management personnel
from the Company. If at any time during or after the Employment Term, the
Executive's employment by the Company is terminated by the Executive's death,
the Company will use all commercially reasonable efforts to make available, or
to cause to be made available, to the Executive's dependents, at their expense,
health, medical and dental insurance coverage comparable to the coverage that is
generally available to management personnel from the Company.
6. INSURANCE. The Company may, from time to time, apply for and take
out, in its own name and at its own expense, naming itself or others as the
designated beneficiary (which it may change from time to time), policies for
health, accident, disability or other insurance upon the Executive or his life,
in any amount or amounts that it may deem necessary or appropriate to protect
its interest. The Executive agrees to aid the Company in procuring such
insurance by submitting to reasonable medical examinations and by filling out,
executing and delivering such applications and other instruments in writing as
may reasonably be required by an insurance company or companies to which any
application or applications for insurance may be made by or for the Company.
7. INDEMNIFICATION. The Executive shall be entitled to the benefit of
the indemnification obligations of the Company set forth in Article X of the
Company's Certificate of Incorporation, as amended through the date of this
Agreement and Section 8 of Article X of the Company's bylaws as in effect at the
date of this Agreement. The Company shall not cause or permit any rescission of,
or amendment to or modification of, Article X of its Certificate of
Incorporation or Section 8 of Article X of its bylaws after the date hereof to
materially reduce, limit or restrict the indemnification rights of the Executive
thereunder, except to the extent otherwise required by law.
8. OTHER PROVISIONS.
8.1 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mail, as follows:
(i) if to the Company, to:
TRIAD Medical Inc.
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn.: X. Xxxxxx Coop, President
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(ii) if to the Executive, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000/(000) 000-0000
Either party may change its address for notice hereunder by notice to
the other party.
8.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties with respect to its subject
matter and supersedes all prior agreements, written or oral, with respect
thereto; PROVIDED, HOWEVER, that nothing herein shall in any way limit the
obligation, rights or liabilities of the parties under any written stock option
agreement separately entered into by the parties.
8.3 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder.
8.4 GOVERNING LAW; VENUE. This Agreement, except as set forth in
Section 4.5 hereof, shall be governed by, and construed in accordance with, the
laws of the State of Indiana, without reference to principles governing choice
or conflicts of law.
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8.5 ASSIGNMENT. This Agreement, and any rights and obligations
hereunder, may not be assigned by any party hereto without the prior written
consent of the other party, except that the Company may assign this Agreement to
any of its subsidiaries or affiliates without the Executive's consent provided
such assignment does not diminish any of the Executive's benefits, rights or
obligations hereunder.
8.6 COUNTERPARTS. This Agreement may be executed 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.
8.7 HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
TRIAD MEDICAL INC.
By: /s/ XXXXXXX X. XXXXXXXXXX, XX.
Xxxxxxx X. Xxxxxxxxxx, Xx.,
Chief Executive Officer
EXECUTIVE:
/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
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