Exhibit 10.(d)(d)
AGREEMENT dated [CLOSING DATE], among XXXXX XXXXXX, INC., a Delaware
corporation (the "Company"), and XXXXX XXXXX (the "Executive").
The Company and the Executive are parties to an Employment Agreement dated
March 7, 1997 (the "Employment Agreement"). Each capitalized term used herein
and not otherwise defined shall have the meaning given such term in the
Employment Agreement.
The parties agree as follows:
1. If the Executive's employment with the Company terminates for any
reason other than (i) the Executive's death, (ii) the Executive's termination of
his employment without good reason (as that term is used in Section 7(a)(ii) of
the Employment Agreement), or (iii) by the Company pursuant to Section 7(a)(i)
of the Employment Agreement, within two years after a Significant Date, the
Company will pay, within 30 days after the date of such termination, the
Executive (the "Termination Payment"), in full satisfaction of all its
obligations hereunder, severance equal to (x) the product of (A) the base salary
and automobile allowance paid to the Executive during the three months
immediately preceding the date of termination (not including incentive
compensation or any non-cash compensation) and (B) the number of full months the
Executive had been employed by the Company prior to the termination, with a
minimum severance pay equal to eighteen months' base salary (plus eighteen
months' automobile allowance) and a maximum severance pay equal to thirty-six
months' base salary (plus thirty-six months' automobile allowance), plus (y)
three times the amount of bonus, if any, paid to the Executive for the full
fiscal year preceding the termination; provided, however, that the maximum
amount payable under this Section 1 shall be limited to the amount which when
added to all other payments (or the value of all other benefits) that are
received by the Executive from the Company and which are "contingent upon a
change in control" as such term is defined in the Internal Revenue Code of 1986
(the "Code") would not constitute a "parachute payment" (as such term is defined
on the date hereof by the Code, i.e. the aggregate present value of the payments
in the nature of compensation to such individual which are contingent on such
change would be less than three (3) times the "base amount" as such term is
defined on the date hereof by the Code); and provided further, however, that the
Termination Payment shall be reduced to the extent that the Executive is
entitled to cash and/or benefits as a result of the termination of employment
(other than cash and/or benefits accrued to the date of termination). The term
that the Executive has been employed by the Company for purposes of this
Agreement shall include the term of his employment by Micro Bio-Medics, Inc.
("MBM") prior to the Effective Time (as defined in the Agreement and Plan of
Merger by and among the Company, MBM and HSI Acquisition Corp. dated as of
February 28, 1997).
The Termination Payment payable pursuant to this Section 1 will not be
subject to offset on account of any remuneration paid or payable to the
Executive for any subsequent employment the Executive may obtain, whether during
or after the period during which the Termination Payment is made and the
Executive shall have no obligation whatsoever to seek any subsequent employment.
2. In all events, the Termination Payment will be subject to any
applicable payroll or other taxes required to be withheld.
3. The Company will reimburse the Executive for reasonable attorneys' fees
and expenses incurred by the Executive if the Executive is employed hereunder
and prevails against the Company with respect to a claim hereunder.
4. This Agreement shall be binding upon and inure to the benefit of the
Executive and his legal representatives and the Company and any assignee or
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company.
5. This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof, may not be modified or terminated orally,
and shall be construed and governed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXX XXXXXX, INC.
By:______________________________
Authorized Officer
_________________________________
XXXXX XXXXX
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SCHEDULE A
A "Significant Date" shall be deemed to have occurred if after the date
hereof: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and
14(d) thereof), excluding (A) the Company, (B) any "Subsidiary" thereof, (C) any
employee benefit plan sponsored or maintained by the Company, or any Subsidiary
thereof (including any trustee of any such plan acting in his or her capacity as
trustee) and (D) any person who (or group which includes a person who) is the
beneficial owner (as defined in Rule 13(d)-3 under the Exchange Act) as of
January 1, 1995 of at least fifteen percent (15%) of the common stock of the
Company, becomes the beneficial owner (as defined in Rule 13(d)-3 under the
Exchange Act) of shares of the Company having at least thirty percent (30%) of
the total number of votes that may be cast for the election of directors of the
Company; (ii) the shareholders of the Company shall approve any merger or other
business combination of the Company, sale of all or substantially all of the
Company's assets or combination of the foregoing transactions (a "Transaction"),
other than a Transaction involving only the Company and one or more of its
Subsidiaries, or a Transaction immediately following which the shareholders of
the Company immediately prior to the Transaction continue to have a majority of
the voting power in the resulting entity (excluding for this purpose any
shareholder owning directly or indirectly more than ten percent (10%) of the
shares of the other company involved in the Transaction if such shareholder is
not as of January 1, 1994, the beneficial owner (as defined in Rule 13(d)-3
under the Exchange Act) of at least fifteen percent (15%) of the common stock of
the Company); (iii) within any twenty-four (24) month period beginning on or
after the date hereof, the persons who were directors of the Company immediately
before the beginning of such period (the "Incumbent Directors") shall cease (for
any reason other than death) to constitute at least a majority of the board of
directors of the Company or the board of directors of any successor to the
Company (the "Board"), provided that, any director who was not a director as of
the date hereof shall be deemed to be an Incumbent Director if such director was
elected to the Board by, or on the recommendation of or with the approval of, at
least two-thirds of the directors who then qualified as Incumbent Directors
either actually or by prior operation of the foregoing unless such election,
recommendation or approval was the result of an actual or threatened election
contest of the type contemplated by Regulation 14a-11 promulgated under the
Exchange Act or any successor provision); or (iv) a Voting Trust Termination
Date, as such term is defined in the Voting Trust Agreement dated as of
September 30, 1994 among the Company, Xxxxxxx Xxxxxxx, as voting trustee and
others. Notwithstanding the foregoing, no Significant Date shall be deemed to
have occurred for purposes of this Agreement by reason of any Transaction which
shall have been approved by at least two-thirds of the Incumbent Directors.
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