Exhibit 10(c)(iv)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of October 1, 1999, by and
between AMERICAN MEDICAL ALERT CORP., a New York corporation (the "Company"),
with offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and XXXXXXXX
X. XXXXXX, an individual having an address at 000 Xxxxxx Xxxxx Xxxx, Xxxx Xxxxx,
Xxx Xxxx 00000 ("Employee").
W I T N E S S E T H:
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WHEREAS, Employee is currently employed by the Company; and
WHEREAS, the Company desires that Employee continue to be
employed by it and render services to it, and Employee is willing to be so
employed and to render such services to the Company, all upon the terms and
subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises contained herein, the parties hereby agree as follows:
1. Employment. The Company hereby employs Employee for the
period beginning as of the date hereof and ending on September 30, 2000, unless
earlier terminated pursuant hereto (the "Employment Period").
2. Duties. Subject to the authority of the Board of Directors
of the Company, Employee shall be employed as the Company's Vice President of
Marketing. Employee will perform such duties and services of an executive
nature, commensurate with such position, as may from time to time be assigned to
him by the Board of Directors.
3. Full Time. Employee agrees that he will devote his full
time and attention to the business and affairs of the Company. Employee further
agrees to use his best efforts to perform his duties hereunder.
4. Compensation. In consideration of the duties and services
to be performed by Employee hereunder, the Company agrees to pay, and Employee
agrees to accept the amounts set forth below:
(a) A base salary, to be paid in accordance with the
Company's normal payroll procedures, during the Employment
Period.
i) $100,000 - 10/1/99 thru 12/31/99
ii) $110,000 - 1/1/00 thru 9/30/00
(b) Additional Compensation - see enclosed Schedules
A.
(c) The compensation provided for herein shall be in
addition to any retirement, profit sharing, insurance or
similar benefit which may at any time be payable to Employee
pursuant to any plan or policy of the Company relating to such
benefits, which additional benefits shall be made available to
Employee on the same basis as they are generally made
available to other executive officers of the Company. Such
compensation shall be in addition to any options which may be
granted under any stock option plan of the Company.
(d) The Company shall reimburse Employee in
accordance with the Company's normal policies for all
reasonable travel, hotel, meal and other expenses properly
incurred by him in the performance of his duties hereunder.
(e) The Company shall provide Employee with the use
of an automobile, selected by Employee with consent of the
Company and leased by the Company, with all expenses of
operation, such as insurance, gas, oil and repair, paid for by
the Company and having a cost to the Company of up to
$1,000.00 per month.
5. Vacation. Employee shall be entitled to three (3) weeks
vacation each fiscal year, to be taken at such time as is mutually convenient to
the Company and Employee.
6. Death. In the event of the death of Employee during the
Employment Period, this Agreement and the employment of Employee hereunder shall
terminate on the date of the death of Employee. The estate of Employee (or such
person(s) as Employee shall designate in writing) shall be entitled to receive,
and the Company agrees to continue to pay, in accordance with the normal pay
practice of the Company, the salary of Employee provided by Section 4, for a
period of one (1) year following the date of death of Employee.
7. Disability. In the event that Employee shall be unable to
perform his duties hereunder as a result of physical or mental illness or
incapacity for a period of one hundred and eighty (180) consecutive days or an
aggregate period of more than one hundred and eighty (180) days in any
12-month period, the Company may terminate this Agreement after the expiration
of such period. Upon such termination, Employee shall be entitled to receive the
salary in accordance with Section 4 hereof computed up to the date of
termination.
8. Non-Competition and Non-Disclosure. (a) Employee covenants
and agrees that, throughout the Employment Period and for a period of three (3)
years thereafter, he will not, directly or indirectly, own, manage, operate or
control, or participate in the ownership, management, operation or control of,
any business competing directly in the United States of America with the
business conducted by the Company or any subsidiary of the Company on the date
of termination hereof; provided, however, that Employee may own not more than 5%
of the outstanding securities of any class of any corporation engaged in any
such business, if such
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securities are listed on a National Securities Exchange or regularly traded in
the over-the-counter market by a member of a National Securities Association.
(b) Employee covenants and agrees that, throughout the
Employment Period and for a period of three (3) years thereafter, he will not
directly or indirectly solicit, entice or induce any person who on the date of
termination of employment of Employee is, or within the last three months of
Employee's employment by the Company was, associated with or employed by the
Company or any subsidiary of the Company to leave the employ of or terminate his
association with the Company, or any subsidiary of the Company, solicit the
employment of any such person on his own behalf or on behalf of any other
business enterprise.
(c) Employee covenants and agrees that, throughout the
Employment Period and at all times thereafter, he will not use, or disclose to
any third party, trade secrets or confidential information of the Company,
including, but not limited to, confidential information or trade secrets
belonging or relating to the Company, its subsidiaries, affiliates, customers
and clients or proprietary processes or procedures of the Company, its
subsidiaries, affiliates, customers and clients. Proprietary processes and
procedures shall include, but shall not be limited to, all information which is
known or intended to be known only to employees of the Company, its respective
subsidiaries and affiliates or others in a confidential relationship with the
Company or its respective subsidiaries and affiliates which relates to business
matters.
(d) If any term of this Section 8 is found by any court having
jurisdiction to be too broad, then and in that case, such term shall
nevertheless remain effective, but shall be considered amended (as to the time
or area or otherwise, as the case may be) to a point considered by said court as
reasonable, and as so amended shall be fully enforceable.
(e) In the event that Employee shall violate any provision of
this Agreement (including but not limited to the provisions of this Section 8),
then Employee hereby consents to the granting of a temporary or permanent
injunction against him by a court of competent jurisdiction prohibiting him from
violating any provision of this Agreement. In any proceeding for an injunction
and upon any motion for a temporary or permanent injunction, Employee agrees
that his ability to answer in damages shall not be a bar or interposed as a
defense to the granting of such temporary or permanent injunction against
Employee. Employee further agrees that the Company will not have an adequate
remedy at law in the event of any breach by Employee hereunder and that the
Company will suffer irreparable damage and injury if Employee breaches any of
the provisions of this Agreement.
9. Termination. (a) The Company may terminate this Agreement
without liability (other than for the base salary provided in Section 4 accrued
to the date of termination) in the event of (i) a material breach by Employee of
the provisions of this Agreement, which breach shall not have been cured by
Employee within sixty (60) days following written notice thereof by the Company
to Employee, (ii) the commission of gross negligence or bad faith by Employee in
the course of his employment hereunder, which commission has a material adverse
effect on the Company, (iii) the commission by Employee of a criminal act of
fraud, theft or
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dishonesty causing material damages to the Company or any of its subsidiaries or
(iv) Employee shall be convicted of (or plead nolo contendere to) any felony, or
misdemeanor involving moral turpitude if such misdemeanor results in material
financial harm to or materially adversely affects the goodwill of the Company.
(b) (Intentionally Omitted)
(c) After a Change in Control (as hereinafter defined) has
occurred, Employee may terminate his employment at any time upon written notice
to the Company within six (6) months after he has obtained actual knowledge of
the occurrence of any of the following events:
(i) Failure to elect or appoint, or re-elect or re-appoint,
Employee to, or removal of Employee from, his office and/or position with the
Company as constituted prior to the Change in Control, except in connection with
the termination of Employee's employment pursuant to Section 9(a) hereof;
(ii) A reduction in Employee's overall compensation
(including any reduction in pension or other benefit programs or perquisites) or
a material adverse change in the nature or scope of the authorities, powers,
functions or duties normally attached to Employee's position with the Company as
referred to in Section 2 hereof;
(iii) A determination by Employee made in good faith that,
as a result of a Change in Control, he is unable effectively to carry out the
authorities, powers, functions or duties attached to his position with the
Company as referred to in Section 2 hereof, and the situation is not remedied
within thirty (30) days after receipt by the Company of written notice from
Employee of such determination;
(iv) A breach by the Company of any provision of this
Agreement not covered by clauses (i), (ii) or (iii) of this Section 9(c), which
is not remedied within thirty (30) days after receipt by the Company of written
notice from Employee of such breach;
(v) A change in the location at which substantially all of
Employee's duties with the Company are to be performed to a location which is
not within a 50-mile radius of the address of the place where Employee is
performing services prior to the date of the Change in Control; or
(vi) failure by the Company to obtain the assumption of,
and the agreement to perform, this Agreement by any successor (pursuant to a
transfer described in Section 15).
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An election by Employee to terminate his employment under the
provisions of this Section 9(c) shall not be deemed a voluntary termination of
employment by Employee for the purpose of interpreting the provisions of any of
the Company's employee benefit plans, programs or policies. Employee's right to
terminate his employment pursuant to this Section 9(c) shall not be affected by
his illness or incapacity, whether physical or mental, unless the Company shall
at the time be entitled to terminate his employment under Section 7 of this
Agreement. Employee's continued employment with the Company for any period of
time less than six (6) months after a Change in Control shall not be considered
a waiver of any right he may have to terminate his employment pursuant to this
Section 9(c).
(d) After a Change in Control has occurred, if Employee
terminates his employment with the Company pursuant to Section 9(c) hereof or if
Employee's employment is terminated by the Company for any reason other than
pursuant to Section 9(a) hereof, Employee (i) shall be entitled to his base
salary, the additional compensation determined in accordance with Section 4(b)
hereof, and any bonuses, awards, perquisites and benefits, including, without
limitation, benefits and awards under the Company's stock option plans and the
Company's pension and retirement plans and programs, through the date specified
in the notice of termination as the last day of Employee's employment by the
Company (the "Termination Date") and, in addition thereto, (ii) shall be
entitled to be paid in a lump-sum, on the Termination Date, an amount of cash
(to be computed, at the expense of the Company, by the independent certified
public accountants utilized by the Company immediately prior to the Change of
Control (the "Accountants"), whose computation shall be conclusive and binding
upon Employee and the Company) equal to 1.99 times Employee's "base amount" as
defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"). Such lump-sum payment is hereinafter referred to as the
"Termination Compensation."
(e) Notwithstanding anything in this Agreement to the
contrary, Employee shall have the right, prior to the receipt by him of any
amounts due hereunder, to waive the receipt thereof or, subsequent to the
receipt by him of any amounts due hereunder, to treat some or all of such
amounts as a loan from the Company which Employee shall repay to the Company,
within ninety (90) days from the date of receipt, with interest at the rate
provided in Section 7872 of the Code. Notice of any such waiver or treatment of
amounts received as a loan shall be given by Employee to the Company in writing
and shall be binding upon the Company.
(f) It is intended that the "present value" of the payments
and benefits to Employee, whether under this Agreement or otherwise, which are
includable in the computation of "parachute payments" shall not, in the
aggregate, exceed 1.99 times the "base amount" (the terms "present value",
"parachute payments" and "base amount" being determined in accordance with
Section 280G of the Code). Accordingly, if Employee receives payments or
benefits from the Company prior to payment of the Termination Compensation
which, when added to the Termination Compensation, would, in the opinion of the
Accountants, subject any of the payments or benefits to Employee to the excise
tax imposed by Section 4999 of the Code, the Termination Compensation shall be
reduced by the smallest amount necessary, in the opinion of the Accountants, to
avoid such tax. In addition, the Company shall have no obligation to
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make any payment or provide any benefit to Employee subsequent to payment of the
Termination Compensation which, in the opinion of the Accountants, would subject
any of the payments or benefits to Employee to the excise tax imposed by Section
4999 of the Code. No reduction in Termination Compensation or release of the
Company from any payment or benefit obligation in reliance upon any aforesaid
opinion of the Accountants shall be permitted unless the Company shall have
provided to Employee a copy of any such opinion that specifically entitles
Employee to rely thereon, no later than the date otherwise required for payment
of the Termination Compensation or any such later payment or benefit.
(g) "Change of Control" as used in this Agreement shall mean
the occurrence of any of the following:
(i) any "person" or "group" (as such terms are used in
Section 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Act")), except for an employee stock ownership trust (or any of the
trustees thereof), becomes a "beneficial owner" (as such term in used in Rule
13d-3 promulgated under the Act), after the date hereof, directly or indirectly,
of securities of the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities;
(ii) a change in "control" of the Company (as the term
"control" is defined in Rule 12b-2 or any successor rule promulgated under the
Act) shall have occurred;
(iii) the majority of the Board of Directors, as such
entire Board of Directors is composed at the date of this Agreement, no longer
serve as directors of the Company, except that there shall not be counted toward
such majority who no longer serve as directors any director who ceased to serve
prior to the date of a Change in Control, for any reason, or at any other time
due to his death, disability or termination for cause;
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets; or
(v) the shareholders of the Company approve a merger or
consolidation of the Company with any other company, other than a merger or
consolidation which would result in the combined voting power of the Company's
voting securities outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation. Notwithstanding the foregoing, any transaction
involving a leveraged buyout or other acquisition of the Company which would
otherwise constitute a Change in Control, in which Employee participates in the
surviving or successor entity (other than solely as an employee or consultant),
shall not constitute a Change in Control.
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10. No Impediments. Employee warrants and represents that he
is free to enter into this Agreement and to perform the services contemplated
thereby and that such actions will not constitute a breach of, or default under,
any existing agreement.
11. No Waiver. The failure of any of the parties hereto to
enforce any provision hereof on any occasion shall not be deemed to be a waiver
of any preceding or succeeding breach of such provision or of any other
provision.
12. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto and no amendment, modification
or waiver of any provision herein shall be effective unless in writing, executed
by the party charged therewith.
13. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed by the laws of
the State of New York applicable to agreements to be wholly performed therein
without giving effect to principles of conflict or choice of law thereof. . 14.
Binding Effect. This Agreement shall bind and inure to the benefit of the
parties, their successors and assigns.
15. Assignment and Delegation of Duties. This Agreement may
not be assigned by the parties hereto except that the Company shall have the
right to assign this Agreement to any successor in connection with a sale or
transfer of all or substantially all of its assets, a merger or consolidation.
This Agreement is in the nature of a personal services contract and the duties
imposed hereby are non-delegable.
16. Section Headings. The section headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
17. Notices. Any notice under the provisions of this Agreement
shall be in writing, shall be sent by one of the following means, directed to
the address set forth on the first page of this Agreement or to such other
address as shall be designated hereunder by notice to the other party, effective
upon actual receipt and shall be deemed conclusively to have been given: (i) on
the first business day following the day timely deposited for overnight delivery
with Federal Express (or other equivalent national overnight courier service) or
United States Express Mail, with the cost of delivery prepaid or for the account
of the sender; (ii) on the fifth business day following the day duly sent by
certified or registered United States mail, postage prepaid and return receipt
requested; or (iii) when otherwise actually received by the addressee on a
business day (or on the next business day if received after the close of normal
business hours or on any non-business day).
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18. Unenforceability; Severability. If any provision of this
Agreement is found to be void or unenforceable by a court of competent
jurisdiction, the remaining provisions of this Agreement shall, nevertheless, be
binding upon the parties with the same force and effect as though the
unenforceable part has been severed and deleted.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
AMERICAN MEDICAL ALERT CORP.
By:/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
CFO
By:/s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx
Vice President, Marketing
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XXXXXXXX X. XXXXXX EMPLOYMENT AGREEMENT
SCHEDULE A
1. Commission on New Revenues:
a. Employee shall receive sales commissions on incremental annual
revenues calculated as follows:
1. 1999 and 2000 - Employee shall receive a 3% sales commission
on all incremental sales above 105% of 1997 annual sales,
compounded by an additional 5% annually.
2. Commission on Pre-tax income - Employee shall receive .0375% of increased net
income above the base year of 1997. This commission shall be paid only if
pre-tax income increases year to year.
3. Stock Options - In accordance with the Company's 1991 and 1997 Stock Option
Plans or other option plans which may be adopted in the future, the employee
shall receive stock options to purchase a number of shares of common stock equal
to 5% of total compensation paid during each semi-annual stock option grant
period. In addition, Employee shall be granted additional stock options
calculated as follows:
Incremental Sales above 105% of 1997 sales, compounded by an additional
5% annually - Additional stock options granted shall be equal to 2.5%
of incremental sales.
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