EXHIBIT 10.18
EMPLOYMENT AGREEMENT
BY AND BETWEEN
TRIAD MEDICAL INC.
AND XXXXXX XXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into on
September __, 1997, between TRIAD Medical Inc., a Delaware corporation (the
"Company"), and Xxxxxx Xxxxxxx, 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, various acquisitions
subsidiaries which are wholly owned subsidiaries of the Company (the "Merger
Subsidiaries"), and various medical product and service companies (the "Acquired
Companies"), and the stockholders of the Acquired Companies, are entering into
Agreements and Plans of Reorganization (the "Acquisition Agreements"), under
which the Acquired Companies will merge with the Merger Subsidiaries in a merger
(the "Merger") of which the Acquired Companies will be the surviving
corporations and as a result of which the Acquired Companies will become wholly
owned subsidiaries 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:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY THE COMPANY. The Company agrees to employ the
Executive as Vice President, Alternate Site 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 or management responsibility to which the Executive is assigned, as
well as such other duties, which are not inconsistent with such position or
management responsibility, 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 United
States, and nothing in this Agreement shall require the Executive to relocate
his base of employment or principal place of residence from the United States.
1.4 TERMINATION OF EXISTING CONTRACTS. The Executive agrees that all
prior agreements and contracts, whether written or oral, relating to the
employment of the Executive by the (i) Company, or any of its subsidiaries and
affiliates or (ii) any of the Acquired Companies, 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 Company's or Acquired Companies
financial statements), or (ii) require the 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 Company for its employees generally, or (iii) impair or
adversely affect any indemnification rights that Executive may have under
statutes empowering corporations in the Company's or any Acquired Company's
state of incorporation to indemnify their officers and directors, or under the
Company's or any Acquired Company's bylaws or any written indemnification
agreement between the Executive and the Company or any 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 Company or any 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
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 $144,000 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 is 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
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term "Territory" 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 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 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 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.
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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,
then, subject to applicable law, 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 (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.
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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 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 (subject to applicable law) 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) 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 best 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.
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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 best 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:
Xxxxxx Xxxxxxx
000 00xx Xxxxxx
Xxxxxxxxxx Xxxxxxx, XX 00000
Telecopy No.: (___)
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 Delaware, without reference to principles governing choice
or conflicts of law.
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
TRIAD MEDICAL INC.
By: /S/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx, CEO
EXECUTIVE:
/S/ XXXXXX XXXXXXX
Xxxxxx Xxxxxxx
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