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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
8th day of January, 1998 by and between Women First HealthCare, Inc., a Delaware
corporation (the "Company"), and Xxxxxx Xxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is presently employed by the Company and, prior to
the date hereof, there was no employment agreement in effect between Executive
and the Company; and
WHEREAS, the Company wishes to secure the continued employment of
Executive, and Executive wishes to accept such employment, for the period and on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment.
(a) The Company hereby employes Executive as Chairman of the Board and
Chief Executive Officer and Executive hereby accepts such employment, on the
terms and subject to the conditions hereinafter set forth. In such capacity,
Executive shall have full responsibility and authority to manage and direct the
business of the Company, subject to the supervision of the Board.
(b) Executive agrees to perform such other duties as are assigned to
him, consistent with his position as a senior executive, pursuant to the
direction of the Board.
(c) Executive shall be required to devote substantially all of his
business time, attention and effort to the Company's business and affairs and
perform diligently his duties, all subject to the direction of the Board.
Notwithstanding the foregoing, but subject to the terms of the Non-Competition
Agreement referred to in Section 5, this shall not preclude Executive from
serving on community and civic boards, participating in industry associations,
or otherwise engaging in other activities which do not unreasonably interfere
with his duties to the Company.
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2. Term. Subject to the provisions for termination hereinafter
provided, the term of this Agreement (the "Term") shall begin on the date
hereof, and shall continue through the fourth anniversary of the date hereof.
3. Compensation.
(a) Throughout the Term, the Company shall pay to Executive a "Base
Salary," payable in accordance with the Company's usual pay practices (and in
any event no less frequently than monthly), of $150,000 per annum, which Base
Salary shall be subject to increase upon review annually by the Company's Board
of Directors.
(b) Executive shall be entitled to be reimbursed for all reasonable
business-related expenses incurred by him including, without limitation,
reimbursement for the costs (including a mutually determined hourly charge) of
business-related travel reasonably requiring, in Executive's good faith
judgment, the use of Executive's personal airplane.
(c) It is anticipated that the Company will own or lease an apartment
in New York City for Company business. It is understood that the annual rental
for any such apartment shall not exceed $110,000. Executive shall have access
to and use of such apartment as reasonably required in connection with Company
business.
4. Termination.
(a) Executive's employment under this Agreement and the Term shall
be terminated immediately on the death of Executive and may be terminated by
the Company:
(i) at any time after the Permanent Disability of Executive;
or
(ii) at any time for "Cause" (as defined below) by action of
the Board
For purposes hereof, Cause shall mean active participation by Executive
in an act or series of acts of dishonesty or gross negligence with respect to
the Company or in fraudulent conduct, or if Executive (i) is convicted of a
felony or
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(ii) willfully and habitually fails to perform his duties hereunder in
accordance with the lawful direction of the Company's Board of Directors.
For purposes hereof, Executive's "Permanent Disability" shall be deemed
to have occurred one day after one hundred twenty (120) days in the aggregate
during any consecutive twelve (12) month period, or one day after ninety (90)
consecutive days, during which one hundred twenty (120) or ninety (90) days, as
the case may be, Executive, by reason of his physical or mental disability or
illness, shall have been unable to discharge fully his duties under this
Agreement.
(b) Termination by Death. If Executive's employment is terminated by
death, Executive's estate shall be entitled to receive salary and other benefits
accrued by him hereunder up to and including the date of Executive's death,
payable within ninety (90) days after the date of death.
(c) Termination for Cause. If Executive's employment is terminated by
the Company for Cause, the Company shall not have any other or further
obligations to Executive under this Agreement (except as to that portion of any
unpaid Base Salary and other benefits accrued and earned under this Agreement
through the date of such termination).
(d) Termination for Permanent Disability or for Good Reason. If
Executive's employment is terminated by the Company for Permanent Disability, or
by Executive for "Good Reason," Executive shall be entitled to receive severance
compensation equal to what would have been his Base Salary under Section 3(a),
payable at such times as his Base Salary would have been paid if his employment
had not been terminated (less, in the case of termination for Permanent
Disability, any disability insurance benefits pursuant to any disability
insurance provided by the Company or purchased by Executive, the cost of which
is reimbursed by the Company) for the shorter of one year or the remainder of
what would have been the Term. For purposes of this Agreement, "Good Reason"
means there is a material diminution in Executive's duties and responsibilities,
as the same exist on the date hereof.
5. Non-Competition Agreement
Executive acknowledges the Company's reliance on and expectation of
Executive's continued commitment to performance of his duties and
responsibilities during the Term. In light of such reliance and expectation on
the part of the
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Company, and for other good reasons, Executive and the Company are entering
into a Non-Competition Agreement, dated the date hereof. Executive agrees to
perform each and every obligation of Executive therein contained.
6. MISCELLANEOUS.
(a) The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise unenforceable, in
whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction nevertheless shall be
binding and enforceable.
(b) The rights and obligations of the Company under this Agreement
shall inure to the benefit of, and shall be binding on, the Company and its
successors and assigns, and the rights and obligations (other than obligations
to perform services) of Executive under this Agreement shall inure to the
benefit of, and shall be binding upon, Executive and his heirs, personal
representatives and assigns.
(c) All notices and other communications required or permitted under
this Agreement shall be in writing, and shall be deemed properly given if
delivered personally, mailed by registered or certified mail in the United
States mail, postage prepaid, return receipt requested, sent by facsimile, or
sent by Express mail, Federal Express or other nationally recognized express
delivery service, as follows:
If to the Company or the Board:
Women First HealthCare, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
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With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
If to Executive:
Xxxxxx Xxxxxx
c/o Women First HealthCare, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice given by hand, certified or registered mail, or by Express Mail, Federal
Express or other such express delivery service, shall be effective upon actual
receipt. Notice given by facsimile transmission shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery.
Any party may change any address to which notice is to be given to it
by giving notice as provided above of such change of address.
(d) The failure of either party to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
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(e) This Agreement supersedes all prior or contemporaneous agreements and
understandings between the parties and may not be modified or terminated
orally. No modification or attempted waiver shall be valid unless in writing
and signed by the party against whom the same is sought to be enforced.
(f) This Agreement shall be governed by, and construed in accordance with
the provisions of, the law of New Jersey, without regard to the conflict of
laws principles thereof.
(g) All payments required to be made by the Company hereunder to
Executive shall be subject to the withholding of such amounts relating to taxes
and other government assessments as the Company may reasonably determine it
should withhold pursuant to any applicable law, rule or regulation.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first set forth above.
WOMEN FIRST HEALTHCARE, INC.
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
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