EMPLOYMENT AGREEMENT
Exhibit
99.1
THIS
EMPLOYMENT AGREEMENT is dated effective as of May 1, 2006 (the "Effective
Date"), by and between THE FEMALE HEALTH COMPANY, a Wisconsin corporation (the
"Company"), and XXXX XXX XXXXXX ("Xx. Xxxxxx"). Certain capitalized terms
used herein are defined in section 10 below.
RECITALS
A.
The
Company and Xx. Xxxxxx desire to terminate any and all prior agreements,
whether oral or written, between Xx. Xxxxxx and the Company relating to
Xx. Xxxxxx'x employment.
B.
The
Company desires to employ Xx. Xxxxxx and Xx. Xxxxxx is willing to make
her services available to the Company on the terms and conditions set forth
below.
AGREEMENTS
In
consideration of the premises and the mutual agreements which follow, the
parties agree as follows:
1.
Employment.
The
Company hereby employs Xx. Xxxxxx and Xx. Xxxxxx hereby accepts
employment with the Company on the terms and subject to the conditions set
forth
in this Agreement.
2.
Term.
The
term of Xx. Xxxxxx'x employment hereunder shall commence on the Effective
Date and shall continue until terminated as provided in section 6
below.
3.
Duties.
Xx.
Xxxxxx shall serve as a strategic advisor to the Company and will, under the
direction of the Company's Chairman and Chief Executive Officer, faithfully
and
to the best of her ability, perform the duties of such position. Xx. Xxxxxx
shall perform such duties and have such responsibilities relating to the ongoing
operations of the Company as are summarized in a letter of even date herewith
from the Chairman to Xx. Xxxxxx and such additional duties consistent in nature
to such summarized duties which may from time to time be reasonably assigned
or
delegated by the Chairman and Chief Executive Officer and/or the Board of
Directors of the Company. Xx. Xxxxxx agrees to devote such amount of her
business time, effort and skill as may be necessary for the proper performance
of such duties while employed by the Company; provided
that
Xx. Xxxxxx may serve on corporate, civic or charitable boards or
committees, fill speaking engagements, manage personal investments or engage
in
other business or consulting activities from time to time on the condition
that
such activities do not individually or in the aggregate significantly interfere
with the performance of Xx. Xxxxxx'x duties under this Agreement.
4.
Compensation.
Xx. Xxxxxx shall receive a base salary of $150,000 per year, payable in
regular and equal monthly installments (the "Base Salary"), prorated for any
partial calendar year during the term of this Agreement.
5.
Fringe
Benefits.
Xx.
Xxxxxx will continue to receive the fringe benefits provided to her under the
terms of the Employment Agreement dated effective May 1, 1994 between Xx. Xxxxxx
and the Company, including the following:
(a) Vacation.
Xx. Xxxxxx shall be entitled to paid vacation annually pursuant to the
terms of the Company's vacation plan. Xx. Xxxxxx and the Company shall
mutually determine the time and intervals of such vacation.
(b) Medical,
Health, Dental, Disability and Life Coverage.
Xx. Xxxxxx shall be eligible to participate in any medical, health, dental,
disability and life insurance plans in effect for the employees of the Company
who are at similar levels or positions of employment with the Company as
Xx. Xxxxxx, in accordance with the terms of such plans.
(c)
Incentive
Bonus and Stock Ownership Plans.
Xx. Xxxxxx shall be entitled to participate in any incentive bonus plan,
incentive stock option or other stock ownership plan or other incentive
compensation plan developed generally for key employees of the Company, on
a
basis consistent with her position and level of total compensation with the
Company.
(d)
Reimbursement
for Reasonable Business Expenses.
The
Company shall pay or reimburse Xx. Xxxxxx for reasonable expenses incurred
by her in connection with the performance of her duties pursuant to this
Agreement, including, but not limited to, travel expenses, expenses in
connection with seminars, professional conventions or similar professional
functions and other reasonable business expenses.
6.
Termination.
(a) Termination
of the Employment Period.
The
Employment Period shall continue until the earlier of: (i) September 30, 2006,
unless the parties mutually agree in writing to extend the term of this
Agreement (such date hereof or such extended date being referred to herein
as
the "Expected Completion Date"), (ii) the date of Xx. Xxxxxx'x death
or Disability, (iii) the date Xx. Xxxxxx resigns or (iv) the date
that the Board of Directors determines that termination of Xx. Xxxxxx'x
employment is in the best interests of the Company (the "Employment Period").
The last day of the Employment Period shall be referred to herein as the
"Termination Date."
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(b) Definitions.
(i)
For
purposes of this Agreement, "Disability" shall mean a physical or mental
sickness or any injury which renders Xx. Xxxxxx incapable of performing the
services required of her as an employee of the Company and which does or may
be
expected to continue for more than six months during any twelve-month period.
In
the event Xx. Xxxxxx shall be able to perform her usual and customary
duties on behalf of the Company following a period of Disability, and does
so
perform such duties or such other duties as are prescribed by the Board of
Directors for a period of three continuous months, any subsequent period of
Disability shall be regarded as a new period of Disability for purposes of
this
Agreement. The Company and Xx. Xxxxxx shall determine the existence of a
Disability and the date upon which it occurred. In the event of a dispute
regarding whether or when a Disability occurred, the matter shall be referred
to
a medical doctor selected by the Company and Xx. Xxxxxx. In the event of
their failure to agree upon such a medical doctor, the Company and
Xx. Xxxxxx shall each select a medical doctor who together shall select a
third medical doctor who shall make the determination. Such determination shall
be conclusive and binding upon the parties hereto.
(ii)
For
purposes of this Agreement, "Cause" shall be deemed to exist if Xx. Xxxxxx
shall have (1) engaged in a material breach of the terms of section 7 or section
8 of this Agreement; (2) refused to perform a lawful written directive of
the Board of Directors of the Company or of the Company's Chairman and Chief
Executive Officer that is consistent with Xx. Xxxxxx'x duties and
responsibilities; (3) been convicted of, or plead guilty to, or plead nolo
contendere to a felony or a crime involving moral turpitude; (4) committed
an act of fraud, embezzlement or material misappropriation against the Company,
including, but not limited to, the offer, payment, solicitation or acceptance
of
any unlawful bribe or kickback with respect to the Company's business;
(5) habitually neglected her duties (other than resulting from
Xx. Xxxxxx'x incapacity due to physical or mental illness); (6) failed
to perform the duties incident to her employment with the Company on a regular
basis, including, but not limited to by reason of chronic absence from work
(excluding a failure resulting from Xx. Xxxxxx'x Disability, vacations,
illnesses or leaves of absence approved by the Board); (7) made a knowing
material misrepresentation to the shareholders or directors of the Company;
or
(8) engaged in willful and intentional material misconduct in the
performance of her duties or gross negligence of her duties under this Agreement
or a material violation of her fiduciary obligations to the Company; provided,
that for purposes of clause (2) and only the first act or omission with respect
to section 8 of this Agreement for clause (1), any act or omission that is
curable shall not constitute Cause unless the Company gives Xx. Xxxxxx
written notice of such act or omission, that specifies the act or omission
in
reasonable detail, and that specifically refers to this section and, within
15 days after such notice is received by Xx. Xxxxxx, Xx. Xxxxxx
fails to cure such act or omission (except that the Company shall not be
required to provide such notice more than once in cases of repeated acts or
omissions).
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(iii) For
purposes of this Agreement, "Good Reason" shall mean (1) the material
diminution of Xx. Xxxxxx'x duties set forth in section 3 above or any
material adverse change in title, status, responsibilities, authorities or
material perquisites of Xx. Xxxxxx; (2) the relocation of the offices
at which Xx. Xxxxxx is principally employed to a location which is more
than 50 miles from the offices at which Xx. Xxxxxx is principally
employed as of the date hereof; provided, that travel necessary for the
performance of Xx. Xxxxxx'x duties set forth in section 3 above shall
not determine the location where Xx. Xxxxxx is "principally employed;"
(3) assignment to Xx. Xxxxxx of duties materially inconsistent with
her position and duties described in this Agreement; or (4) any material
reduction in or failure to pay Xx. Xxxxxx'x Base Salary as provided
herein.
(c) Termination
for Disability or Death.
In the
event of termination for Disability or death, payments of the greater of (i)
Xx. Xxxxxx'x Base Salary or (ii) remaining portion of the agreement shall
be made to Xx. Xxxxxx, her designated beneficiary or her estate for a
period of six months after the Termination Date in accordance with the normal
payroll practices of the Company. During this period, the Company shall also
reimburse Xx. Xxxxxx for amounts paid, if any, to continue medical, dental
and health coverage pursuant to the provisions of the Consolidated Omnibus
Budget Reconciliation Act. During this period, the Company will also continue
Xx. Xxxxxx'x life insurance and disability coverage, to the extent
permitted under applicable policies, and will pay to Xx. Xxxxxx the fringe
benefits pursuant to section 5 which have accrued prior to the Termination
Date.
(d) Termination
by the Company without Cause or by Xx. Xxxxxx for Good
Reason.
If
(i) the Employment Period is terminated by the Company for any reason other
than for Cause, Disability or death, (ii) the Employment Period is
terminated by the Company for what the Company believes is Cause or Disability,
and it is ultimately determined that the Employment Period was terminated
without Cause or Disability or (iii) Xx. Xxxxxx resigns for Good
Reason, Xx. Xxxxxx shall be entitled to receive, as damages for such a
termination, a severance amount of $125,000 to be paid on the Termination
Date, and Xx. Xxxxxx shall receive $50,000 in consideration for her
covenants and agreements provided in sections 7 and 8, with such amount to
be paid in a lump sum on the first anniversary of the Termination Date. During
the applicable Noncompete Period, the Company shall also reimburse
Xx. Xxxxxx for amounts paid, if any, to continue medical, dental and health
coverage pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act. During the applicable Noncompete Period, the Company will
also continue Xx. Xxxxxx'x disability coverage. If a termination or
resignation of Xx. Xxxxxx'x employment occurs in accordance with subsections
6(d)(i), (ii) or (iii) at any time after the occurrence of or in contemplation
of a Change of Control, then Xx. Xxxxxx shall not be entitled to receive
any amounts or benefits as provided in this Agreement, but instead shall be
entitled to receive as damages for such termination or resignation, the payments
and other benefits as are set forth in the Amended and Restated Change of
Control Agreement dated as of October 1, 2005 by and between the Company and
Xx.
Xxxxxx. Moreover, if such a termination or resignation occurs after the
occurrence of or in contemplation of a Change of Control, the Noncompete Period
provided in section 7(a) shall be reduced to six months. In addition, the
Company will pay to Xx. Xxxxxx the fringe benefits pursuant to section 5
which have accrued prior to the Termination Date.
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(e) Termination
by the Company for Cause or by Xx. Xxxxxx Without Good
Reason.
If the
Employment Period is terminated by the Company with Cause or as a result of
Xx. Xxxxxx'x resignation without Good Reason, Xx. Xxxxxx shall not be
entitled to receive her Base Salary or any fringe benefits or bonuses for
periods after the Termination Date.
(f) Effect
of Termination.
Except
as provided in section 6(d), the termination of the Employment Period pursuant
to section 6(a) shall not affect Xx. Xxxxxx'x obligations as described
in sections 7 and 8.
7.
Noncompetition
and Nonsolicitation.
Xx. Xxxxxx acknowledges and agrees that the contacts and relationships of
the Company and its Subsidiaries with its customers, suppliers, licensors and
other business relations are, and have been, established and maintained at
great
expense and provide the Company and its Subsidiaries with a substantial
competitive advantage in conducting their business. Xx. Xxxxxx acknowledges
and agrees that by virtue of Xx. Xxxxxx'x employment with the Company,
Xx. Xxxxxx will have unique and extensive exposure to and personal contact
with the Company's customers and licensors, and that she will be able to
establish a unique relationship with those Persons that will enable her, both
during and after employment, to unfairly compete with the Company and its
Subsidiaries. Furthermore, the parties agree that the terms and conditions
of
the following restrictive covenants are reasonable and necessary for the
protection of the business, trade secrets and Confidential Information (as
defined in section 8 below) of the Company and its Subsidiaries and to
prevent great damage or loss to the Company and its Subsidiaries as a result
of
action taken by Xx. Xxxxxx. Xx. Xxxxxx acknowledges and agrees that
the noncompete restrictions and nondisclosure of Confidential Information
restrictions contained in this Agreement are reasonable and the consideration
provided for herein is sufficient to fully and adequately compensate
Xx. Xxxxxx for agreeing to such restrictions. Xx. Xxxxxx acknowledges
that she could continue to actively pursue her career and earn sufficient
compensation in the same or similar business without breaching any of the
restrictions contained in this Agreement.
(a) Noncompetition.
Xx. Xxxxxx hereby covenants and agrees that during the Employment Period
and for two years thereafter (the "Noncompete Period") (except that the
Noncompete Period may be shortened as provided in section 6(d)), she shall
not,
directly or indirectly, either individually or as an employee, principal, agent,
partner, shareholder, owner, trustee, beneficiary, co-venturer, distributor,
consultant, representative or in any other capacity, participate in, become
associated with, provide assistance to, engage in or have a financial or other
interest in any business, activity or enterprise which is competitive with
the
business of the Company or any of the Company's Subsidiaries. The ownership
of
less than a 3% interest in a corporation whose shares are traded in a recognized
stock exchange or traded in the over-the-counter market, even though that
corporation may be a competitor of the Company, shall not be deemed financial
participation in a competitor. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this section is invalid
or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing
the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified. The term "indirectly" as used in this
section and section 8 below is intended to include any acts authorized or
directed by or on behalf of Xx. Xxxxxx or any Affiliate of
Xx. Xxxxxx.
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(b) Nonsolicitation.
Xx. Xxxxxx hereby covenants and agrees that during the Noncompete Period,
she shall not, directly or indirectly, either individually or as an employee,
agent, partner, shareholder, owner, trustee, beneficiary, co-venturer,
distributor, consultant or in any other capacity:
(i)
canvass,
solicit or accept from any Person who is a customer, distributor or licensor
of
the Company or any of its Subsidiaries (any such Person is hereinafter referred
to individually as a "Customer," and collectively as the "Customers") any
business which is in competition with the business of the Company or any of
its
Subsidiaries (as the Company's or its Subsidiaries' business existed during
the
Employment Period) including, without limitation, the canvassing, soliciting
or
accepting of business competitive with the Company's or its Subsidiaries'
business (as the Company's or its Subsidiaries' business existed during the
Employment Period) from any Person which is or was a Customer of the Company
or
any of its Subsidiaries within two years preceding the date of this
Agreement, or during the Employment Period;
(ii)
advise,
request, induce or attempt to induce any of the Customers, suppliers, or other
business contacts of the Company or any of its Subsidiaries who currently have
or have had business relationships with the Company or any of its Subsidiaries
within two years preceding the date of this Agreement, to withdraw, curtail
or
cancel any of its business or relations with the Company or any of its
Subsidiaries; or
(iii)
induce
or
attempt to induce any employee, sales representative, consultant or other agent
of the Company or any of its Subsidiaries to terminate his or her relationship
or breach any agreement with the Company or any of its
Subsidiaries.
(c) Limitation.
For
purposes of this section, the term "business of the Company or any of the
Company's Subsidiaries" shall be limited to the business actually carried on
by
the Company or its Subsidiaries during the term of this Agreement. Further,
these provisions shall not prohibit Xx. Xxxxxx from consulting with governmental
or non-commercial organizations or NGOs on matters relating to HIV/AIDS,
including the use of the female condom, provided that Xx. Xxxxxx shall not
accept assignments resulting in a conflict of interest with her obligations
under this Agreement.
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8.
Confidential
Information.
Xx. Xxxxxx acknowledges and agrees that the customers, business
connections, customer lists, procedures, operations, techniques, and other
aspects of and information about the business of the Company and its
Subsidiaries (the "Confidential Information") are established at great expense
and protected as confidential information and provides the Company and its
Subsidiaries with a substantial competitive advantage in conducting their
business. Xx. Xxxxxx further acknowledges and agrees that by virtue of her
past employment with the Company, and by virtue of her employment with the
Company, she has had access to and will have access to, and has been entrusted
with and will be entrusted with, Confidential Information, and that the Company
would suffer great loss and injury if Xx. Xxxxxx would disclose this
information or use it in a manner not specifically authorized by the Company.
Therefore, Xx. Xxxxxx agrees that during the Employment Period and for
three years thereafter, she will not, directly or indirectly, either
individually or as an employee, agent, partner, shareholder, owner trustee,
beneficiary, co-venturer distributor, consultant or in any other capacity,
use
or disclose or cause to be used or disclosed any Confidential Information,
unless and to the extent that any such information (a) becomes generally
known to and available for use by the public other than as a result of
Xx. Xxxxxx'x acts or omissions or (b) is legally required to be
disclosed (by oral questions, deposition, interrogatory, request for information
or documents, subpoena, civil investigative demand or similar process);
provided, that to the extent practicable Xx. Xxxxxx shall provide the
Company with prompt written notice of such legal requirement so that the Company
may seek a protective order or other appropriate remedy and, in the event that
such protective order or other remedy is not obtained, Xx. Xxxxxx shall
furnish only that portion of the Confidential Information which is legally
required to be disclosed and will cooperate with the Company to obtain
assurances that confidential treatment will be accorded such Confidential
Information. At
the
Company's request, Xx. Xxxxxx shall deliver to the Company at the
termination of the Employment Period, or at any other time the Company may
reasonably request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and copies thereof)
relating to the Confidential Information, Work Product (as defined below) or
the
business of the Company or any of its Subsidiaries which she may then possess
or
have under her control. Xx. Xxxxxx acknowledges and agrees that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its Affiliates' actual
or
anticipated business research and development or existing or future products
or
services and which are conceived, developed or made by Xx. Xxxxxx while
employed by the Company and its Subsidiaries belong to the Company or such
Affiliate, as the case may be. The Company will provide Xx. Xxxxxx with
reasonable access from time to time to all of the memoranda, notes and other
material delivered by her for any and all reasonable purposes not in violation
of the terms of this Agreement.
9.
Common
Law of Torts and Trade Secrets.
The
parties agree that nothing in this Agreement shall be construed to limit or
negate the common law of torts or trade secrets where it provides the Company
and its Affiliates with broader protection than that provided
herein.
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10.
Definitions.
"Affiliate"
means,
with respect to any Person, any other Person controlling, controlled by or
under
common control with such Person and any partner of a Person which is a
partnership.
"Change
of Control"
means:
(a) The
acquisition by any individual, entity or group (within the meaning of
section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or
more
of either (i) the then outstanding shares of common stock of the Company
(the "Outstanding Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally
in
the election of directors (the "Outstanding Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii)
and
(iii) of subsection (c)
of this definition; or
(b) Individuals
who, as of the date hereof, constitute the Board of Directors of the Company
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board of Directors of the Company; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least
a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the
Board of Directors of the Company; or
(c) Approval
by the shareholders of the Company of a reorganization, merger or consolidation
(a "Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Common Stock
and Outstanding Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election
of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result
of
such transaction owns the Company through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such
Business Combination of the Outstanding Common Stock and Outstanding Voting
Securities, as the case may be, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Company or such corporation resulting
from such Business Combination) beneficially owns, directly or indirectly,
20%
or more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation except
to
the extent that such ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the approval of the initial agreement, or of
the
action of the Board of Directors of the Company, providing for such Business
Combination; or
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(d) Approval
by the shareholders of the Company of (i) a complete liquidation or
dissolution of the Company or (ii) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a corporation,
with respect to which following such sale or other disposition, [a] more
than 60% of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be, [b] less than 20% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled
to
vote generally in the election of directors is then beneficially owned, directly
or indirectly, by any Person (excluding any employee benefit plan (or related
trust) of the Company or such corporation), except to the extent that such
Person owned 20% or more of the Outstanding Common Stock or Outstanding Voting
Securities prior to the sale or disposition, and [c] at least a majority of
the members of the board of directors of such corporation were members of the
Incumbent Board at the time of the approval of the initial agreement, or of
the
action of the Board of Directors of the Company, providing for such sale or
other disposition of assets of the Company or were elected, appointed or
nominated by the Board of Directors of the Company.
"Person"
means
any individual, partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture, unincorporated
organization and any governmental entity or any department, agency or political
subdivision thereof.
"Subsidiary"
means,
with respect to any Person, any corporation, partnership, association or other
business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence
of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, association or other business entity, a
majority of the partnership or other similar ownership interest thereof is
at
the time owned or controlled, directly or indirectly, by any Person or one
or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in
a
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of partnership, association or other business
entity gains or losses or shall be or control any managing director or general
partner of such partnership, association or other business entity.
11.
Specific
Performance.
Xx. Xxxxxx acknowledges and agrees that irreparable injury to the Company
may result in the event Xx. Xxxxxx breaches any covenant or agreement
contained in sections 7 or 8 and that the remedy at law for the breach of
any such covenant will be inadequate. Therefore, if Xx. Xxxxxx engages in
any act in violation of the provisions of sections 7 or 8, Xx. Xxxxxx
agrees that the Company shall be entitled, in addition to such other remedies
and damages as may be available to it by law or under this Agreement, to
injunctive relief to enforce the provisions of sections 7 and
8.
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12.
Waiver.
The
failure of either party to insist in any one or more instances, upon performance
of the terms or conditions of this Agreement shall not be construed as a waiver
or a relinquishment of any right granted hereunder or of the future performance
of any such term, covenant or condition.
13.
Notices.
Any
notice to be given hereunder shall be deemed sufficient if addressed in writing
and delivered by registered or certified mail or delivered personally, in the
case of the Company, to its principal business office, and in the case of
Xx. Xxxxxx, to her address appearing on the records of the Company, or to
such other address as she may designate in writing to the Company.
14.
Severability.
In the
event that any provision shall be held to be invalid or unenforceable for any
reason whatsoever, it is agreed such invalidity or unenforceability shall not
affect any other provision of this Agreement and the remaining covenants,
restrictions and provisions hereof shall remain in full force and effect and
any
court of competent jurisdiction may so modify the objectionable provision as
to
make it valid, reasonable and enforceable. Furthermore, the parties specifically
acknowledge the above covenant not to compete and covenant not to disclose
confidential information are separate and independent agreements.
15.
Complete
Agreement.
Except
as otherwise expressly set forth herein, this document embodies the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way. Without limiting the generality
of the foregoing, this Agreement supersedes the Employment Agreement, entered
into effective May 1, 1994, between the Company and Xx. Xxxxxx
(together with all amendments thereto, the "Prior Agreement"). The Prior
Agreement is hereby terminated and shall cease to be of any further force or
effect except as insofar as it is referred to in Section 5 of this Agreement.
Notwithstanding the foregoing, the Amended and Restated Change of Control
Agreement dated as of October 1, 2005 between the parties hereto shall remain
in
full force and effect.
16.
Amendment.
This
Agreement may only be amended by an agreement in writing signed by each of
the
parties hereto.
17.
Governing
Law.
This
Agreement shall be governed by and construed exclusively in accordance with
the
laws of the State of Illinois, regardless of choice of law
requirements.
18.
Benefit.
This
Agreement shall be binding upon and inure to the benefit of and shall be
enforceable by and against the Company, its successors and assigns and
Xx. Xxxxxx, her heirs, beneficiaries and legal representatives. It is
agreed that the rights and obligations of Xx. Xxxxxx and the Company may
not be delegated or assigned.
10
IN
WITNESS
WHEREOF, the parties have executed or caused this Employment Agreement to be
executed as of the date first above written.
|
THE
FEMALE HEALTH COMPANY
BY/s/
X.X.
Xxxxxxx
X.X. Xxxxxxx, Chairman and
Chief
Executive Officer
|
|
|
/s/
Xxxx Xxx
Xxxxxx
Xxxx
Xxx Xxxxxx
|
11
THE
FEMALE HEALTH COMPANY
000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
January
20, 2006
Xx.
Xxxx
Xxx Xxxxxx
000
Xxxx
Xxxxx Xxxxx
Xxx.
000
Xxxxxxx,
XX 00000
Dear
Xxxx
Xxx:
Reference
is made to that certain Employment Agreement (the "Employment Agreement") dated
effective as of May 1, 2006 between The Female Health Company, a Wisconsin
corporation (the "Company"), and Xxxx Xxx Xxxxxx ("Xx. Xxxxxx"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
to
them in the Employment Agreement.
To
clarify Xx. Xxxxxx'x duties and responsibilities as a strategic advisor to
the
Company, the Company and Xx. Xxxxxx agree that Xx. Xxxxxx'x duties and
responsibilities are summarized as follows:
|
l
|
Consistent
with demand work with Xxxx Xxxx to develop a financially viable
manufacturing capacity including sites/partners etc. for distribution
of
FC2;
|
|
l
|
Develop
the FC2 global public sector pricing/purchasing coalition for
FC2.
|
|
l
|
Determine
how to handle FC2/FC1 in the U.S. given FDA
position.
|
|
l
|
FC2
FDA strategy development and
implementation,
|
|
l
|
Complete
Japan agreement and transition of relationship responsibilities to
Xxxx
Xxxx.
|
|
l
|
Maintenance
of other regulatory relationships regarding FC2 including WHO, UNAIDS
and
others.
|
|
l
|
Continuation
and ultimate transition of Xx. Xxxxxx'x global public sector and
related
relationships to Xxxxx Xxxx and/or
others;
|
|
l
|
Input
as needed on the public relations aspects of FC2 strategy with Ogilvy
and
others and transition from Xx. Xxxxxx to others as the spokesperson
for
the Company/FC1 and FC2;
|
|
l
|
Continued
relationship with Xxxx Xxxxxxxx and the Business Women's Initiative
against HIV/AIDS; and
|
|
l
|
Work
with X.X. Xxxxxxx as X.X. xxxxx helpful in sorting through the options
regarding the Company's future strategy. Participation in the
implementation of any given future option if desired by the Company
would
be based on a separate and new
agreement.
|
|
l
|
In
implementing these responsibilities consult with OBP and agree on
action
to be taken prior to the allocation of financial/human
resources.
|
All
remaining provisions of the Employment Agreement remain unchanged and in full
force and effect. This letter agreement may be executed by facsimile and in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
Yours
very
truly,
THE
FEMALE HEALTH
COMPANY
BY /s/
X.X.
Xxxxxxx
X.X. Xxxxxxx, Chairman and
Chief Executive
Officer
Accepted
and agreed to this
20
day of
January, 2006.
/s/
Xxxx Xxx Xxxxxx
Xxxx
Xxx
Xxxxxx
2
