EXHIBIT 5
EMPLOYMENT AGREEMENT DATED DECEMBER 21, 1992
WITH XXXXX X. XXXXXXXX
AGREEMENT
THIS AGREEMENT is made and entered into this 21st day of December 1992, by
and between UTAH MEDICAL PRODUCTS, I INC., a Utah corporation (the "Company"),
and XXXXX X . XXXXXXXX ("Xxxxxxxx").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company is involved in the manufacture and marketing of
disposable medical products;
WHEREAS, Xxxxxxxx has substantial expertise in the management of companies
in businesses that complement the Company's business; and
WHEREAS, the Company desires to employ Xxxxxxxx as its President and Chief
Executive Officer and Xxxxxxxx desires to accept such employment;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein and in further consideration of the services to be
performed by Xxxxxxxx, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to words and terms elsewhere defined herein, the following
words and terms as used herein shall have the following meanings:
1.1 "Cause" shall mean (i) the commission of a crime involving moral
turpitude; (ii) the commission of a material act of fraud or dishonesty; (iii)
the commission of any material act intentionally against the interests of the
Company or any of its affiliates, including, but not limited to, the improper
disclosure of confidential or insider information; (iv) a material violation of
any Company policy regarding the ownership and/or trading of the Company's
common stock; or (v) Xxxxxxxx'x failure to cure a material breach of his duties
as President and Chief Executive Officer of the Company within thirty (30) days
of written notice of such material breach by the Company's Board of Directors.
1.2 "Change of Control" shall be deemed to have occurred if (i) the Company
shall be merged or consolidated into another corporation and as a result of such
merger or consolidation less than seventy-five percent (75%) of the outstanding
voting securities of the surviving or resulting corporation shall be owned in
the aggregate by the former shareholders of the Company as the same shall have
existed prior to such merger or consolidation, (ii) the Company shall sell,
lease, exchange or otherwise transfer (in one transaction or a series of
transactions) all or substantially all of the assets of the Company to an entity
which is not a wholly-owned subsidiary of the Company, (iii) a person, within
the meaning of Section 3(a)(9) or Section 13(d)(9) (as in effect on the date
hereof) of the Securities Exchange Act of 1934 (the "Act") shall become the
beneficial owner (within the meaning of Rule 13d-3 of the Act as in effect on
the date hereof) of fifty percent (50%) or more of the outstanding voting
securities of the Company, or (iv) if as a result of a merger, consolidation,
sale of all or substantially all the Company's assets, or contested election or
any combination of the foregoing, the persons who were directors of the Company
immediately prior thereto shall cease to constitute a majority of the Board of
Directors of the Company or any successor to the Company.
1.3 "Commencement Date" shall mean December 31, 1992.
1.4 "Disability" shall mean the inability of Xxxxxxxx, as a result of
physical or mental incapacity, to substantially perform his duties with the
Company or its affiliates for a period of three (3) consecutive months and the
determination of an independent physician selected by the mutual agreement of
the parties that Xxxxxxxx is unable to engage in any executive employment or
occupation for remuneration or profit.
ARTICLE II
EMPLOYMENT
2.1 Duties of Xxxxxxxx. Throughout the term of this Agreement, Xxxxxxxx
shall be employed as the President and Chief Executive Officer of the Company or
such other positions as may be specified by the Company's Board of Directors. As
President and Chief Executive Officer, Xxxxxxxx shall have the duties and
responsibilities customarily associated with such position. He shall report
directly to the Board of Directors and shall serve at their pleasure.
ARTICLE III
TERM AND TERMINATION
3.1 Term. Unless terminated early pursuant to Section 3.2 hereof, this
Agreement shall have a term of one (1) year, commencing on the Commencement
Date.
3.2 Events of Termination. This Agreement shall terminate upon the
occurrence of any one of the following events:
(a) Expiration of the term hereof;
(b) Xxxxxxxx'x death or Disability;
(c) The termination of Xxxxxxxx'x employment for Cause;
(d) Xxxxxxxx'x voluntary termination of his employment;
(e) Termination of Xxxxxxxx'x employment as a result of the Change
of Control;
(f) Other termination of Xxxxxxxx'x employment by the Company;
(g) The mutual agreement of Xxxxxxxx and the Company.
3.3 Expiration of Term. In the event of termination of this Agreement
pursuant to Section 3.2(a) hereof and if Xxxxxxxx does not continue as President
and Chief Executive Officer on an "at will" basis or pursuant to the terms of
another agreement, Xxxxxxxx shall be entitled to all accrued but unpaid
compensation owed by the Company pursuant to Sections 4.1, 4.3, 4.6 and 4.7
hereof through the date his employment terminates. Xxxxxxxx shall also be
entitled to participate in the employee benefit plans discussed in Section 4.4
hereof to the same extent as any employee may lawfully participate through and
after termination of employment. If Xxxxxxxx is terminated at the expiration of
the term hereof or at any time thereafter other than pursuant to Sections
3.2(b), 3.2(c) or 3.2(d), Xxxxxxxx shall also be entitled to the severance
payment due Xxxxxxxx pursuant to Section 4.2. The provisions of the foregoing
sentence shall survive termination of this Agreement by reason of the expiration
of the term hereof.
3.4 Death or Disabi1ity. In the event of termination of this Agreement
pursuant to Section 3.2(b) hereof, Xxxxxxxx or his estate shall be entitled to
all accrued but unpaid compensation owed by the Company pursuant to Sections
4.1, 4.3, 4.6, and 4.7 hereof through the date his employment terminates.
Xxxxxxxx shall also be entitled to participate in the employee benefit plans
discussed in Section 4.4 hereof to the same extent as any employee may lawfully
participate through and after termination of employment.
3.5 Termination for Cause. If this Agreement is terminated pursuant to
Section 3.2(c) hereof, then Xxxxxxxx shall be entitled to all accrued but unpaid
compensation owed by the Company pursuant to Sections 4.1 and 4.6 hereof through
the date his employment terminates. Xxxxxxxx shall also be entitled to
participate in the employee benefit plans discussed in Section 4.4 hereof to the
same extent as any employee may lawfully participate through and after
termination of employment.
3.6 Voluntary Termination. If this Agreement is terminated pursuant to
Section 3.2(d) hereof, then Xxxxxxxx shall be entitled to receive all accrued
but unpaid compensation owed by the Company pursuant to Sections 4.1 and 4.6
hereof through the date his employment terminates. Xxxxxxxx shall also be
entitled to participate in the employee benefit plans discussed in Section 4.4
hereof to the same extent as any employee may lawfully participate through and
after termination of employment.
3.7 Termination Upon Change of Control. If this Agreement is terminated
pursuant to Section 3.2(e), then Xxxxxxxx shall be entitled to receive accrued
but unpaid compensation owed to him pursuant to Sections 4.1, 4.3, 4.6, and 4.7
hereof through the date his employment terminates as well as the severance
payment due Xxxxxxxx pursuant to Section 4.2. Xxxxxxxx shall also be entitled to
participate in the employee benefit plans discussed in Section 4.4 hereof to the
same extent as any employee may lawfully participate through and after
termination of employment.
3.8 Other Termination. If this Agreement is terminated pursuant to Section
3.2(f) hereof, then Xxxxxxxx shall be entitled to receive all accrued but unpaid
compensation owed by the Company pursuant to Sections 4.1, 4.2, 4.3, 4.6, and
4.7 hereof through the date his employment terminates. Xxxxxxxx shall also be
entitled to participate in the employee benefit plans discussed in Section 4.4
hereof to the same extent as any employee may lawfully participate through and
after termination of employment.
3.9 Mutual Agreement. If this Agreement is terminated pursuant to Section
3.2(g) hereof, then Xxxxxxxx shall be entitled to receive all accrued but unpaid
compensation owed to him pursuant to Sections 4.1, 4.2, 4.3, 4.6, and 4.7 hereof
through the date his employment terminates unless otherwise agreed by the
parties. Xxxxxxxx shall also be entitled to participate in the employee benefit
plans discussed in Section 4.4 hereof to the same extent as any employee may
lawfully participate through and after termination of employment.
3.10 Notice of Termination. Other than for termination pursuant to Sections
3.2(a), 3.2(b), and 3.2(c) both the Company and Xxxxxxxx agree that each will
give the other at least ninety (90) days written notice prior to terminating
this Agreement. In the event of termination pursuant to Section 3.2(a) (or at
any time after the expiration of the term hereof) or 3.2(c) if the reason for
termination under Section 3.2(c) is that set forth in Section 1.1(v), the
Company agrees that it will give Xxxxxxxx at least thirty (30) days written
notice prior to terminating this agreement or his employment with the Company
after expiration of the term hereof.
ARTICLE IV
COMPENSATION
4.1 Salary. Commencing on the Commencement Date, the Company will pay
Xxxxxxxx a monthly salary of Twelve Thousand Five Hundred Dollars ($12,500),
payable for twelve (12) months.
4.2 Severance Payment. If Xxxxxxxx is terminated at any time during the
term of this Agreement or at any time thereafter for any reason other than
pursuant to Sections 3.2(b), 3.2(c) or 3.2(d), the Company agrees that it will
pay Xxxxxxxx a one-time lump sum of One Hundred Fifty Thousand Dollars
($150,000) within thirty (30) days of the date his employment terminates. The
provisions of this Section shall survive termination of this Agreement by reason
of the expiration of the term hereof.
4.3 Stock Options. The Company's Board of Directors shall xxxxx Xxxxxxxx an
option to purchase up to Fifty Thousand (50,000) shares of the Company's common
stock pursuant to the terms of the Company's Incentive Stock Option Plan (the
"Plan") or such other terms as the Board of Directors may determine at such time
as the Board of Directors may do so without breaching their fiduciary duty or
breaching any applicable law or regulation. Such option shall be granted at the
next meeting of the Company's Board of Directors and in no event later than
December 31, 1992. Such option shall be granted and effective as of the
Commencement Date and shall be granted at the fair market value of the stock on
the Commencement Date as provided in the Plan, shall vest one (1) year from the
date of grant, and shall be exercisable for five (5) years from the date of
grant. In the event Xxxxxxxx'x employment shall terminate pursuant to Sections
3.2(e) or 3.2(f) prior to the time that the option granted hereunder shall vest,
the Company agrees that it shall pay Xxxxxxxx an amount equal to 50,000
multiplied by the difference between the fair market value of a share of the
Company's common stock on the date his employment terminates and the exercise
price of a share of stock covered by the option. For purposes of this Agreement,
the "fair market value" of a share of common stock shall be the closing sales
price for a share of common stock as reported by the National Association of
Securities Dealers Automated Quotation System.
4.4 Employee Benefits. Xxxxxxxx shall be entitled to all benefits to which
executive employees of the Company are entitled under all employee benefit
plans, programs or policies of general application in effect as of January 1,
1993 or thereafter adopted by the Company's Board of Directors, including
without limitation, hospitalization, disability and life insurance.
4.5 Vacation. Xxxxxxxx shall be entitled to such vacation time as is
generally available to the Company's senior executives. There shall be no
accrual of unused vacation time and Xxxxxxxx shall not be entitled to payment
for any unused vacation time upon the termination of his employment with the
Company.
4.6 Moving and Transition Expenses. The Company shall pay Xxxxxxxx'x
reasonable moving expenses for his relocation to Utah. The Company further
agrees that it will pay Xxxxxxxx'x reasonable transition expenses incurred
during the first three (3) months of his employment. Such transition expenses
may include, but not be limited to, airline fares, hotel bills, food, and rental
car expenses reasonably incurred by Xxxxxxxx as he travels to and from Utah as
required to relocate himself and his family. Such payments shall be made within
fifteen (15) business days of Xxxxxxxx'x tendering of appropriate receipts for
any of such expenses.
4.7 Bonus. Xxxxxxxx shall be entitled to receive an annual performance
bonus which shall be awarded by the Board of Directors at the end of the 1993
fiscal year. The performance bonus for achieving a twenty-five percent (25%)
increase in earnings and having an objective achievement value and planning
value of one hundred percent (100%) would be Seventy-Five Thousand Dollars
($75,000), however, this number may vary depending on Xxxxxxxx'x performance
based upon certain factors, including the Company's earnings increase in 1993,
planning, and performance against objectives.
The performance bonus will be determined using the following equation:
Performance Bonus 1993 = ABC (4D)*, where
A = Planning value assessment expressed as 1.00 to 0.60
represents hundred percent (100%) to sixty percent (60%). The
planning value assessment is a measure of value the Board
places on Xxxxxxxx'x plan for the growth and maintenance of
the business.
B = Performance assessments expressed as 1.00 to 0.00 and
represents the value the Board places on the completion of
five (5) objectives as selected by Xxxxxxxx and approved by
the Board of Directors from one hundred percent (100%) to zero
percent (0%).
C = The performance bonus for the company achieving its
targeted twenty-five percent (25%) increase in earnings. This
number in 1993 for Xxxxxxxx is Seventy-Five Thousand Dollars
($75,000).
D = Earnings increase over 1992 from a minimum of ten
percent (10%) and a maximum of forty percent (40%) (0.10 to
0.40). No additional bonus will be paid on earnings increase
over and above forty percent (40%) and no bonus will be paid
to Xxxxxxxx for earnings increase of less than ten percent
(10%).
* = This exponent will be 1.475 for earning increases of twenty-
five percent (25%) to forty percent (40%) and 1.750 for
earning increases from ten percent (10%) to twenty-five
percent (25%).
ARTICLE V
TRADE SECRETS
Xxxxxxxx agrees to conduct himself at all times during and after his
employment with the Company in a manner consistent with his position with the
Company and not to divulge to anyone or use for his personal advantage any trade
secrets of the Company or other confidential information pertaining to the
business of the Company. It is further agreed that "trade secrets" as used in
this Agreement are deemed to include any proprietary or confidential information
of whatever nature which gives to the Company an advantage over its competitors
who do not have access to such information. It is understood that said "trade
secrets" do not include knowledge, skills, or information which is common to
Xxxxxxxx'x profession.
ARTICLE VI
MISCELLANEOUS
6.1 Notice. Any notice, communication or payment, permitted or required by
this Agreement shall be delivered personally or sent by the U.S. Postal Service,
postage prepaid, addressed as follows:
Company: Utah Medical Products, Inc.
0000 Xxxxx 000 Xxxx
Xxxxxxx, Xxxx 00000
Employee: Xxxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
Either party may at any time change such address by written notice to the
other and all notifications shall be deemed to have been received not later than
fifteen (15) days after having been deposited with the U.S. Postal Service.
6.2 Waiver. A waiver by the Company or Xxxxxxxx of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by the other party.
6.3 Governing Law. This Agreement shall be construed and performed in
accordance with the laws of the State of Utah.
6.4 Entire Agreement. This Agreement contains the entire agreement of the
parties and supersedes all prior agreements and understandings between Xxxxxxxx
and the Company on the subject matter hereof. It cannot be modified or changed
by any oral or verbal promise or statement by whomsoever made, nor shall any
written modification of it be binding unless duly signed by the party against
whom the same is sought to be enforced.
6.5 Partial Invalidity. The invalidity of any part hereof shall not affect
the validity and enforceability of any other part hereof. The Agreement shall be
construed and enforced as if the invalid part had never been included in the
Agreement.
6.6 Attorneys' Fees. In the event either party retains an attorney to
enforce this Agreement, the prevailing party shall be entitled to a reasonable
attorneys' fee and court costs.
6.7 Agreement Confidential. Xxxxxxxx and the Company agree to keep the
terms and conditions of this Agreement confidential except as may be needed to
enforce either party's rights under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
COMPANY: UTAH MEDICAL PRODUCTS, INC.
By_________________________
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx Xxxxxxxx
Agreement approved by a resolution of a majority of the Board of Directors
on December 21, 1992 at a meeting of the Board of Directors.
/s/ Xxxxx X. Xxxxx 12-21-92
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Xxxxx X. Xxxxx, Director
/s/ Xxxx X. Xxxxxx 12-21-92
---------------------------------
Xxxx X. Xxxxxx, Director
/s/ Xxxxx X. Xxxx 12-22-92
---------------------------------
Xxxxx X. Xxxx, Director
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Xxxxxxxxxxx X. Xxxxxx, Director
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Wm. Xxxx Xxxxxxx, Director
/s/ Xxxxxxx X. Xxxxxx 12-22-92
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Xxxxxxx X. Xxxxxx, Director
