Exhibit 10(d)
-------------
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of June 15, 2004 between AMERICAN MEDICAL
ALERT CORP., a New York corporation (the "Company"), with offices located at
0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 and XXXXXXX XXXXX, an
individual having an address at 0 Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000
("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of Employee upon
the terms and conditions stated herein; and
WHEREAS, Employee desires to continue to be employed by the Company
upon the terms and conditions stated 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 January 1, 2004 and ending December 31, 2006, 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 Chief Financial Officer.
Employee will perform such duties and services of an executive nature,
commensurate with his position as the Chief Financial Officer, 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 during regular business hours to the business and affairs of the
Company. The foregoing shall not prevent the purchase, ownership or sale by
Employee of investments or securities of publicly held companies and any other
business that is not competitive with the Company or any subsidiary of the
Company so long as such investment does not require active participation of
Employee in the management of the business of such publicly held companies, does
not interfere or conflict with the performance of Employee's duties hereunder
and does not otherwise violate any of the provisions of this Agreement, or
Employee's participation in philanthropic organizations to the extent that such
participation does not interfere or conflict with the performance of Employee's
duties hereunder and does not otherwise violate any provision of this Agreement.
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 on a weekly basis, at the rate
of $145,000 per annum. Such base salary shall be reviewed by the compensation
committee of the Board
of Directors of the Company by each of the years ending 2004 and 2005, for a
possible increase for each of the 2005 and 2006 calendar years, respectively.
(b) The Employee shall be eligible for bonus payments which
may be awarded by the Board of Directors of the Company in its sole discretion.
(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 a monthly
automobile stipend in the amount of $500.00.
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 base salary of Employee provided by paragraph 4(a) and the
additional benefits, if any, provided by paragraph 4(c), in each instance 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
because of illness or incapacity, physical or mental, the duties and services to
be performed by him hereunder 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 base salary provided by paragraph 4(a) and the
additional benefits, if any, provided by paragraph 4(c), in each instance
through the date of such termination.
8. Non-Solicitation and Non-Disclosure. (a) Employee covenants and
agrees that, (i) throughout the Employment Period, he will not directly or
indirectly solicit, entice or induce any person (collectively, "Solicit") who
during the Employment Period is associated with, employed by or is a customer of
the Company or any subsidiary, and (ii) for a period of twelve (12) months
following the Employment Period, he will not Solicit any person who is, or
within the last three months of Employee's employment by the Company was,
associated with, employed by, or was a customer of the Company or any subsidiary
of the
-2-
Company, in each case, to leave the employ of, terminate his association
or its relationship with the Company, or any subsidiary of the Company, or
solicit the employment or business of any such person on his own behalf or on
behalf of any other business enterprise.
(b) 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, or the Company's or its
subsidiaries' business, business plans, investments, customers, strategies,
operations, records, financial information, assets, technology, data and
information that reveals the processes, methodologies, technology or know-how of
the Company or its subsidiaries. Trade secrets and confidential information
shall include, but shall not be limited to, all information which is known or
intended to be known only by 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.
(c) If any term of this paragraph 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.
(d) In the event that Employee shall breach or threaten to
breach any provision of this Agreement (including but not limited to the
provisions of this paragraph 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 or
threatened 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 paragraph 4(a) 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 one hundred twenty (120) days following 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 dishonesty causing material damages to the Company or any of its
subsidiaries, (iv) the conviction of Employee of (or plead nolo contendere to)
any felony, or
-3-
misdemeanor involving moral turpitude if such misdemeanor results in material
financial harm to or materially adversely affects the goodwill of the Company,
or (v) any violation by Employee of the Company's Code of Business Conduct and
Ethics or the Company's sexual harassment and other forms of harassment policy
or drug and alcohol abuse policy, as set forth in the Company's employee
handbook.
(b) The Company may terminate this Agreement without cause at
any time; provided, that upon such termination, Employee shall receive, in
consideration of his continuing obligations under Section 8 hereof, payment of
base salary, based on the then applicable salary level, for a period of six (6)
months from the date of such termination.
(c) After a Change in Control (as hereinafter defined) has
occurred, Employee may terminate his employment upon thirty (30) days' written
notice to the Company within one hundred and eighty (180) days following such a
Change in Control and 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).
An election by Employee to terminate his employment under the
provisions of this paragraph 9(c) shall not be deemed a voluntary termination of
employment by Employee
-4-
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 paragraph 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 paragraph 7 of this Agreement.
Employee's continued employment with the Company for any period of time less
than one hundred and eighty (180) days after a Change in Control shall not be
considered a waiver of any right he may have to terminate his employment
pursuant to this paragraph 9(c).
(d) After a Change in Control has occurred, if Employee
terminates his employment with the Company pursuant to paragraph 9(c) hereof or
if Employee's employment is terminated by the Company for any reason other than
pursuant to paragraph 9(a) hereof, Employee (i) shall be entitled to his base
salary in effect at the time of such termination, 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 2.99 times Employee's "base amount" as defined in Section 280G(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"); it being understood that
in the event of a termination pursuant to paragraph 9(c), Employee shall not be
entitled to the payments described in paragraph 9(b). Such lump sum payment is
hereinafter referred to as the "Termination Compensation."
(e) 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 2.99 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 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.
-5-
(f) "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) during the Employment Period, individuals who
at the beginning of such period constitute the entire Board of Directors cease
for any reason to constitute at least a majority thereof, unless the election,
or the nomination for election, by shareholders of the Company of each new
director was approved or ratified by a vote of at least a majority of the
directors then still in office who were directors at the beginning of the
Employment Period or who were new directors approved by such a vote;
(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.
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.
-6-
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, other than
those which would defer to the substantive laws of another jurisdiction.
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 nondelegable.
16. Paragraph Headings. The paragraph 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 nonbusiness day).
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.
-7-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
EMPLOYEE:
/s/ Xxxxxxx Xxxxx
---------------------------
Xxxxxxx Xxxxx
COMPANY:
AMERICAN MEDICAL ALERT CORP.
By: /s/ Xxxx Rhian
-----------------------------------------
Name: Xxxx Rhian
Title: Executive Vice President and COO
-8-
