EXHIBIT 10.26
EXECUTIVE
EMPLOYMENT AGREEMENT
PREAMBLE
This Executive Employment Agreement defines the essential terms and
conditions of our employment relationship with you. The subjects covered in
this Agreement are vitally important to you and to the Company. Thus, you
should read the document carefully and ask any questions before signing the
Agreement. Given the importance of these matters to you and the Company,
all executives shall sign the Agreement as a condition of employment.
This EMPLOYMENT AGREEMENT, dated and effective this 22nd day of March, 2004
is entered into by and between Hill-Rom, Inc., ("Company"), and Xxxxxxx X.
Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company and its affiliated entities are engaged in the
healthcare industry throughout the United States and abroad including, but not
limited to, the design, manufacture, sale, service and rental of hospital beds
and stretchers, hospital furniture, infant care products, medical-related
architectural products, specialty sleep surfaces (including therapeutic
surfaces) air clearing devices, including biomedical and asset management
services; as well as other medical-related accessories, devices and products;
WHEREAS, the Company is willing to employ Executive in an executive
capacity and Executive desires to be employed by the Company in such capacity
based upon the terms and conditions set forth in this Agreement;
WHEREAS, in the course of the employment contemplated under this Agreement,
it will be necessary for Executive to acquire knowledge of certain trade secrets
and other confidential and proprietary information regarding the Company as well
as its parent, subsidiary and/or affiliated entities (hereinafter jointly
referred to as the "Companies"); and
WHEREAS, the Company and Executive (collectively referred to herein as the
"Parties") acknowledge and agree that the execution of this Agreement is
necessary to memorialize the terms and conditions of their employment
relationship as well as safeguard against the unauthorized disclosure or use of
the Company's confidential information and to otherwise preserve the goodwill
and ongoing business value of the Company;
NOW THEREFORE, in consideration of Executive's employment, the Company's
willingness to disclose certain confidential and proprietary information to
Executive and the mutual covenants contained herein as well as other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
1. Employment. The Company agrees to employ Executive and Executive agrees to
serve as Executive Director/Controller.
2. Duties. Executive agrees to perform all duties and responsibilities
traditionally assigned to, or falling within the normal responsibilities
of, an individual employed in the above-referenced position. Executive also
agrees to perform any and all additional duties or responsibilities as may
be assigned by the Company in its sole discretion.
3. Best Efforts and Duty of Loyalty. During the term of employment with the
Company, Executive covenants and agrees to perform all assigned duties in a
diligent and professional manner and in the best interest of the Company.
Executive agrees to devote his full working time, attention, talents,
skills and best efforts to further the Company's business and agrees not to
take any action, or make any omission, that deprives the Company of any
business opportunities or otherwise act in a manner that conflicts with the
best interest of the Company or is otherwise detrimental to its business.
Executive agrees not to engage in any outside business activity, whether or
not pursued for gain, profit or other pecuniary advantage, without the
express written consent of the Company. Executive shall act at all times in
accordance with the Xxxxxxxxxxx Industries, Inc. Code of Ethical Business
Conduct, the Corporate Compliance Handbook and all other applicable
policies which may exist or be adopted by the Company from time to time.
4. At-Will Employment. Subject to the terms and conditions set forth below,
Executive specifically acknowledges and accepts such employment on an
"at-will" basis and agrees that both Executive and the Company retain the
right to terminate this relationship at any time, with or without cause,
for any reason not prohibited by applicable law upon proper notice.
Executive acknowledges that nothing in this Agreement is intended to
create, nor should be interpreted to create, an employment contract for any
specified length of time between the Company and Executive.
5. Compensation. For all services rendered by Executive on behalf of, or at
the request of, the Company, Executive shall be paid as follows:
(a) A base salary at the bi-weekly rate of Seven Thousand One Hundred
Fifteen Dollars and Thirty-Eight Cents ($7,115.38), less usual and
ordinary deductions;
(b) Incentive compensation, payable solely at the discretion of the
Company, pursuant to the Company's Exempt Employee Executive
Compensation Program or any other program as the Company may establish
in its sole discretion; and
(c) Such additional compensation, benefits and perquisites as the Company
may deem appropriate.
Notwithstanding anything contained herein to the contrary, Executive
acknowledges that the Company specifically reserves the right to make
changes to Executive's compensation in its sole discretion including, but
not limited to, modifying or eliminating a compensation component. The
Parties agree that such changes shall be deemed effective immediately and a
modification of this Agreement unless, within fourteen (14) days after
receiving notice of such change, Executive exercises his right to terminate
this Agreement without cause. The Parties anticipate that Executive's
compensation structure will be reviewed on an annual basis but acknowledge
that the Company shall have no obligation to do so.
6. Direct Deposit. As a condition of employment, and within thirty (30) days
of the effective date of this Agreement, Executive agrees to make all
necessary arrangements to have all sums paid pursuant to this Agreement
direct deposited into one or more bank accounts as designated by Executive.
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7. Warranties and Indemnification. Executive warrants that he is not a party
to any contract, restrictive covenant, or other agreement purporting to
limit or otherwise adversely affecting his ability to secure employment
with any third party. Alternatively, should any such agreement exist,
Executive warrants that the contemplated services to be performed hereunder
will not violate the terms and conditions of any such agreement. In either
event, Executive agrees to fully indemnify and hold the Company harmless
from any and all claims arising from, or involving the enforcement of, any
such restrictive covenants or other agreements.
8. Restricted Duties. Executive agrees not to disclose, or use for the benefit
of the Company, any confidential or proprietary information belonging to
any predecessor employer which otherwise has not been made public and
further acknowledges that the Company has specifically instructed him not
to disclose or use such confidential or proprietary information. Based on
his understanding of the anticipated duties and responsibilities hereunder,
Executive acknowledges that such duties and responsibilities will not
compel the disclosure or use of any such confidential and proprietary
information.
9. Termination Without Cause. Executive's employment may be terminated at any
time, without cause, by either party upon sixty (60) days' advance written
notice or pay in lieu of notice. In such event, Executive shall only be
entitled to such compensation, benefits and perquisites which have been
paid or fully accrued as of the effective date of his separation.
10. Termination With Cause. Executive's employment may be terminated at any
time "for cause" without notice or prior warning. For purposes of this
Agreement, "cause" shall mean the Company's good faith determination that
Executive has:
(i) Failed, refused or otherwise been deemed unable to fully and timely
comply with the terms and conditions of this Agreement, specifically
including any reasonable instructions or orders issued by the Company;
(ii) Acquiesced or participated in any conduct which is dishonest,
fraudulent, illegal, unethical or otherwise involves moral turpitude;
(iii) Violated any Company policy or procedures, specifically including a
violation of Xxxxxxxxxxx Industries, Inc.'s Code of Ethical Business
Conduct;
(iv) Disclosed without proper authorization any trade secrets or other
Confidential Information (as defined herein); or
(v) Engaged in any act which, in the opinion of the Company, is contrary
to its best interests or might hold the Company, its officers or
directors up to embarrassment, ridicule or possible civil or criminal
liability; or
(vi) Engaged in such other conduct recognized at law as constituting cause.
Upon the occurrence or discovery of any event specified above, the
Company shall have the right to terminate Executive's employment,
effective immediately, by providing notice thereof to Executive
without further obligation to him, other than accrued wages or other
accrued benefits of employment (collectively referred to herein as
"Accrued Obligations"), which shall be paid in accordance with the
Company's past practice and applicable law.
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11. Termination Due to Death or Disability. In the event Executive dies or
suffers a disability (as defined herein) during the term of employment,
this Agreement shall automatically be terminated on the date of such death
or disability without further obligation on the part of the Company other
than the payment of Accrued Obligations. For purposes of this Agreement,
Executive shall be considered to have suffered a "disability" upon the
occurrence of one or more of the following events:
(i) Executive becomes eligible for or receives any benefits pursuant to
any disability insurance policy as a result of a determination under
such policy that Executive is permanently disabled;
(ii) Executive becomes eligible for or receives any disability benefits
under the Social Security Act; or
(iii) A good faith determination by the Company that Executive is and will
likely remain unable to perform the essential functions of his duties
or responsibilities hereunder on a full-time basis, with or without
reasonable accommodation, as a result of any mental or physical
impairment.
Notwithstanding anything expressed or implied above to the contrary, the
Company agrees to fully comply with its obligations under the Americans
with Disabilities Act as well as any other applicable federal, state, or
local law, regulation, or ordinance governing the protection of individual
with such disabilities as well as the Company's obligation to provide
reasonable accommodation thereunder.
12. Severance Payments. In the event Executive's employment is terminated by
the Company without cause, and subject to the normal terms and conditions
imposed by the Company (including those set forth herein and in the
attached Separation and Release Agreement), Executive shall be eligible to
receive severance pay based upon his base salary at the time of termination
for a period determined in accordance with any guidelines as may be
established by the Company or for a period up to twelve (12) months
(whichever is longer). No severance pay shall be paid if Executive
voluntarily leaves the Company's employ or is terminated for cause. Any
severance pay made payable hereunder shall be paid in lieu of, and not in
addition to, any notice pay or other accrued compensation. Additionally,
such severance pay is contingent upon Executive fully complying with the
restrictive covenants contained herein and executing a Separation and
Release Agreement in a form not substantially different from that attached
to this Agreement as Exhibit A. Further, the Company's obligation to
provide severance shall be deemed null and void should Executive fail or
refuse to execute the Agreement in such form within any time period as may
be proscribed by law or, in absence thereof, twenty-one (21) days.
13. Assignment of Rights.
(a) Copyrights. Executive agrees that all works of authorship fixed in any
tangible medium of expression by him during the term of this Agreement
relating to the Company's business ("Works"), either solely or jointly
with others, shall be and remain exclusively the property of the
Company. Each such Work created by Executive is a "work made for hire"
under the copyright law and the Company may file applications to
register copyright in such Works as author and copyright owner
thereof. If, for any reason, a Work created by Executive is excluded
from the definition of a "work made for hire" under the copyright law,
then Executive does hereby assign, sell, and convey to the
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Company the entire rights, title, and interests in and to such Work,
including the copyright therein, to the Company. Executive will
execute any documents which the Company deems necessary in connection
with the assignment of such Work and copyright therein. Executive will
take whatever steps and do whatever acts the Company requests,
including, but not limited to, placement of the Company's proper
copyright notice on Works created by Executive to secure or aid in
securing copyright protection in such Works and will assist the
Company or its nominees in filing applications to register claims of
copyright in such Works. The Company shall have free and unlimited
access at all times to all Works and all copies thereof and shall have
the right to claim and take possession on demand of such Works and
copies.
(b) Inventions. Executive agrees that all discoveries, concepts, and
ideas, whether patentable or not, including, but not limited to,
apparatus, processes, methods, compositions of matter, techniques, and
formulae, as well as improvements thereof or know-how related thereto,
relating to any present or prospective product, process, or service of
the Company ("Inventions") that Executive conceives or makes during
the term of this Agreement relating to the Company's business, shall
become and remain the exclusive property of the Company, whether
patentable or not, and Executive will, without royalty or any other
consideration:
(i) inform the Company promptly and fully of such Inventions by
written reports, setting forth in detail the procedures employed
and the results achieved;
(ii) assign to the Company all of his rights, title, and interests in
and to such Inventions, any applications for United States and
foreign Letters Patent, any United States and foreign Letters
Patent, and any renewals thereof granted upon such Inventions;
(iii) assist the Company or its nominees, at the expense of the
Company, to obtain such United States and foreign Letters Patent
for such Inventions as the Company may elect; and
(iv) execute, acknowledge, and deliver to the Company at the Company's
expense such written documents and instruments, and do such other
acts, such as giving testimony in support of his inventorship, as
may be necessary in the opinion of the Company, to obtain and
maintain United States and foreign Letters Patent upon such
Inventions and to vest the entire rights and title thereto in the
Company and to confirm the complete ownership by the Company of
such Inventions, patent applications, and patents.
14. Company Property. All records, files, drawings, documents, equipment, and
the like relating to, or provided by, the Company shall be and remain the
sole property of the Company. Upon termination of employment, Executive
shall immediately return to the Company all such items without retention of
any copies. De minimis items such as pay stubs, 401(k) plan summaries,
employee bulletins, and the like are excluded from this requirement.
15. Confidential Information. Executive acknowledges that the Company and its
affiliated entities (herein collectively referred to as "Companies")
possess certain trade secrets as well as other confidential and proprietary
information which they have acquired or will acquire at great effort and
expense. Such information may include, without limitation, confidential
information regarding the Companies' products and services, marketing
strategies, business plans, operations,
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costs, current or prospective customer information (including customer
contacts, requirements, creditworthiness and like matters), product
concepts, designs, prototypes or specifications, research and development
efforts, technical data and know-how, sales information, including pricing
and other terms and conditions of sale, financial information, internal
procedures, techniques, forecasts, methods, trade information, trade
secrets, software programs, project requirements, inventions, trademarks,
trade names, and similar information regarding the Companies' business
(collectively referred to herein as "Confidential Information"). Executive
further acknowledges that, as a result of his employment with the Company,
Executive will have access to, will become acquainted with, and/or may help
develop, such Confidential Information.
16. Restricted Use of Confidential Information. Executive agrees that all
Confidential Information is and shall remain the sole and exclusive
property of the Company. Except as may be expressly authorized by the
Company in writing, Executive agrees not to disclose, or cause any other
person or entity to disclose, any Confidential Information to any third
party while employed by the Company and for as long thereafter as such
information remains confidential (or as limited by applicable law).
Further, Executive agrees to use such Confidential Information only in the
course of Executive's duties in furtherance of the Company's business and
agrees not to make use of any such Confidential Information for Executive's
own purposes or for the benefit of any other entity or person.
17. Acknowledged Need for Limited Restrictive Covenants. Executive acknowledges
that the Company has spent and will continue to expend substantial amounts
of time, money and effort to develop its business strategies, Confidential
Information, customer relationships, goodwill and employee relationships,
and that Executive will benefit from these efforts. Further, Executive
acknowledges the inevitable use of, or near-certain influence by his
knowledge of, the Confidential Information disclosed to Executive during
the course of employment if allowed to compete against the Company in an
unrestricted manner and that such use would be unfair and extremely
detrimental to the Company. Accordingly, based on these legitimate business
reasons, Executive acknowledges the Company's need to protect its
legitimate business interests by reasonably restricting Executive's ability
to compete with the Company on a limited basis.
18. Non-Solicitation. During Executive's employment and for a period of
eighteen (18) months thereafter, Executive agrees not to directly or
indirectly engage in the following prohibited conduct:
(a) Solicit, offer products or services to, accept orders from, or
otherwise transact business with, any customer or entity with whom
Executive had contact or transacted any business during the eighteen
(18) month period preceding Executive's date of separation or about
whom Executive possessed, or had access to, confidential and
proprietary information;
(b) Attempt to entice or otherwise cause any third party to withdraw,
curtail or cease doing business with the Company, specifically
including customers, venders, independent contractors and other third
party entities;
(c) Disclose to any person or entity the identities, contacts or
preferences of any customers of the Company, or the identity of any
other persons or entities having business dealings with the Company;
(d) Induce any individual who has been employed by or had provided
services to the Company within the six (6) month period immediately
preceding the effective date of Executive's separation to terminate
such relationship with the Company;
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(e) Offer employment to, accept employment inquiries from, or employ any
individual who is or had been employed by the Company at any time
within the six (6) month period immediately preceding such offer or
inquiry; or
(f) Otherwise attempt to directly or indirectly interfere with the
Company's business or its relationship with its employees,
consultants, independent contractors or customers.
19. Limited Non-Compete. For the above reasons, and as a condition of
employment to the fullest extent permitted by law, Executive agrees during
the Relevant Non-Compete Period not to directly or indirectly engage in the
following competitive activities:
(a) Executive shall not have any ownership interest in, work for, advise,
consult, or have any business connection or business or employment
relationship with any Competitor unless Executive provides written
notice to the Company of such relationship prior to entering into such
relationship and, further, provides sufficient written assurances to
the Company's satisfaction that such relationship will not jeopardize
the Company's legitimate interests or otherwise violate the terms of
this Agreement;
(b) Executive shall not engage in any research, development, production,
sale or distribution of any Competitive Products, specifically
including any products or services relating to those for which
Executive had responsibility for the eighteen (18) month period
preceding Executive's date of separation;
(c) Executive shall not market, sell, or otherwise offer or provide any
Competitive Products within his Geographic Territory (if applicable),
specifically including any products or services relating to those for
which Executive had responsibility for the eighteen (18) month period
preceding Executive's date of separation; and
(d) Executive shall not distribute, market, sell or otherwise offer or
provide any Competitive Products to any customer of the Company with
whom Executive had contact (either directly or indirectly) or for
which Executive had responsibility at any time during the eighteen
(18) month period preceding Executive's date of separation.
20. Non-Compete Definitions. For purposes of this Agreement, the Parties agree
that the following terms shall apply:
(a) "Competitive Products" shall include any product or service which
directly or indirectly competes with, is substantially similar to, or
serves as a reasonable substitute for, any product or service in
research, development or design, or manufactured, produced, sold or
distributed by the Company;
(b) "Competitor" shall include any person or entity that offers or plans
to offer any Competitive Products;
(c) "Geographic Territory" shall include any territory formally assigned
to Executive as well as all territories in which Executive has
provided any services, sold any products or otherwise had
responsibility at any time during the eighteen (18) month period
preceding Executive's date of separation;
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(d) "Relevant Non-Compete Period" shall include the period of Executive's
employment with the Company as well as a period of eighteen (18)
months after such employment is terminated, regardless of the reason
for such termination provided, however, that this period shall be
reduced to the greater of (i) six (6) months or (ii) the total length
of Executive's employment with the Company, including employment with
a parent, subsidiary or affiliated entity, if such employment is less
than eighteen (18) months;
(e) "Directly or indirectly" shall be construed such that the foregoing
restrictions shall apply equally to Executive whether performed
individually or as a partner, shareholder, officer, director, manager,
employee, salesman, independent contractor, broker, agent, or
consultant for any other individual, partnership, firm, corporation,
company, or other entity engaged in such conduct.
21. Consent to Reasonableness. In light of the above-referenced concerns,
including Executive's knowledge of and access to the Companies'
Confidential Information, Executive acknowledges that the terms of the
foregoing restrictive covenants are reasonable and necessary to protect the
Company's legitimate business interests and will not unreasonably interfere
with Executive's ability to obtain alternate employment. As such, Executive
hereby agrees that such restrictions are valid and enforceable, and
affirmatively waives any argument or defense to the contrary.
22. Survival of Restrictive Covenants. Executive acknowledges that the above
restrictive covenants shall survive the termination of this Agreement and
the termination of Executive's employment for any reason. Executive further
acknowledges that any alleged breach by the Company of any contractual,
statutory or other obligation shall not excuse or terminate the obligations
hereunder or otherwise preclude the Company from seeking injunctive or
other relief. Rather, Executive acknowledges that such obligations are
independent and separate covenants undertaken by Executive for the benefit
of the Company.
23. Effect of Transfer to Affiliate. Executive acknowledges that the above
restrictive covenants shall survive, and be extended to cover, the transfer
of Executive from the Company to its parent, subsidiary, sister corporation
or any other affiliated entity (hereinafter collectively referred to as an
"Affiliate"). Specifically, in the event of Executive's temporary or
permanent transfer to an Affiliate, he agrees that the foregoing
restrictive covenants shall remain in force so as to continue to protect
the Company for the duration of the non-compete period, measured from his
effective date of transfer to an Affiliate. Additionally, Executive
acknowledges that this Agreement shall be deemed to have been automatically
assigned to the Affiliate as of his effective date of transfer such that
the above-referenced restrictive covenants (as well as all other terms and
conditions contained herein) shall be construed thereafter to protect the
legitimate business interests and goodwill of the Affiliate as if Executive
and the Affiliate had independently entered into this Agreement.
Executive's acceptance of his transfer to, and subsequent employment by,
the Affiliate shall serve as consideration for (as well as be deemed as
evidence of his consent to) the assignment of this Agreement to the
Affiliate as well as the extension of such restrictive covenants to the
Affiliate. Executive agrees that this provision shall apply with equal
force to any subsequent transfers of Executive from one Affiliate to
another Affiliate.
24. Scope of Restrictions. If the scope of any restriction contained in any
preceding paragraphs of this Agreement is deemed too broad to permit
enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law, and
Executive hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
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25. Specific Enforcement/Injunctive Relief. Executive agrees that it would be
difficult to measure any damages to the Company from a breach of the
above-referenced restrictive covenants, but that such damages would be
great, incalculable and irremedial, and that monetary damages alone would
be an inadequate remedy. Accordingly, Executive agrees that the Company
shall be entitled to immediate injunctive relief against such breach, or
threatened breach, in any court having jurisdiction. In addition, if
Executive violates any such restrictive covenant, Executive agrees that the
period of such violation shall be added to the term of the restriction. In
determining the period of any violation, the Parties stipulate that in any
calendar month in which Executive engages in any activity violative of such
provisions, Executive shall be deemed to have violated such provision for
the entire month, and that month shall be added to the duration of the
non-competition provision. Executive acknowledges that the remedies
described above shall not be the exclusive remedies, and the Company may
seek any other remedy available to it either in law or in equity, including
the recovery of compensatory or punitive damages. Executive further agrees
that the Company shall be entitled to an award of all costs and attorneys'
fees incurred by it in any attempt to enforce the terms of this Agreement.
26. Publicly Traded Stock. The Parties agree that nothing contained in this
Agreement shall be construed to prohibit Executive from investing his
personal assets in any stock or corporate security traded or quoted on a
national securities exchange or national market system provided, however,
such investments do not require any services on the part of Executive in
the operation or the affairs of the business or otherwise violate the
Xxxxxxxxxxx Industries, Inc. Code of Ethical Business Conduct.
27. Titles. Titles are used for the purpose of convenience in this Agreement
and shall be ignored in any construction of it.
28. Severability. The Parties agree that each and every paragraph, sentence,
clause, term and provision of this Agreement is severable and that, in the
event any portion of this Agreement is adjudged to be invalid or
unenforceable, the remaining portions thereof shall remain in effect and be
enforced to the fullest extent permitted by law. Further, should any
particular clause, covenant, or provision of this Agreement be held
unreasonable or contrary to public policy for any reason, the Parties
acknowledge and agree that such covenant, provision or clause shall
automatically be deemed modified such that the contested covenant,
provision or clause will have the closest effect permitted by applicable
law to the original form and shall be given effect and enforced as so
modified to whatever extent would be reasonable and enforceable under
applicable law.
29. Choice of Forum. Executive acknowledges that the Companies are primarily
based in Indiana, and Executive understands and acknowledges the Company's
desire and need to defend any litigation against it in Indiana.
Accordingly, the Parties agree that any claim of any type brought by
Executive against the Company or any of its employees or agents must be
maintained only in a court sitting in Xxxxxx County, Indiana, or Xxxxxx
County, Indiana, or, if a federal court, the Southern District of Indiana,
Indianapolis Division. Executive further understands and acknowledges that
in the event the Company initiates litigation against Executive, the
Company may need to prosecute such litigation in such state where the
Executive is subject to personal jurisdiction. Accordingly, for purposes of
enforcement of this Agreement, Executive specifically consents to personal
jurisdiction in the State of Indiana as well as any state in which resides
a customer assigned to the Executive.
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30. Choice of Law. This Agreement shall be deemed to have been made within the
County of Xxxxxx, State of Indiana and shall be interpreted and construed
in accordance with the laws of the State of Indiana. Any and all matters of
dispute of any nature whatsoever arising out of, or in any way connected
with the interpretation of this Agreement, any disputes arising out of the
Agreement or the employment relationship between the Parties hereto, shall
be governed by, construed by and enforced in accordance with the laws of
the State of Indiana without regard to any applicable state's choice of law
provisions.
31. Assignment-Notices. The rights and obligations of the Company under this
Agreement shall inure to its benefit, as well as the benefit of its parent,
subsidiary, successor and affiliated entities, and shall be binding upon
the successors and assigns of the Company. This Agreement, being personal
to Executive, cannot be assigned by Executive, but his personal
representative shall be bound by all its terms and conditions. Any notice
required hereunder shall be sufficient if in writing and mailed to the last
known residence of Executive or to the Company at its principal office with
a copy mailed to the Office of General Counsel.
32. Amendments and Modifications. Except as specifically provided herein, no
modification, amendment, extension or waiver of this Agreement or any
provision hereof shall be binding upon the Company or Executive unless in
writing and signed by both Parties. The waiver by the Company of a breach
of any provision of this Agreement by Executive shall not be construed as a
waiver of any subsequent breach. Nothing in this Agreement shall be
construed as a limitation upon the Company's right to modify or amend any
of its manuals or policies in its sole discretion and any such modification
or amendment which pertains to matters addressed herein shall be deemed to
be incorporated herein and made a part of this Agreement.
33. Outside Representations. Executive represents and acknowledges that in
signing this Agreement he does not rely, and has not relied, upon any
representation or statement made by the Company or by any of the Company's
employees, officers, agents, stockholders, directors or attorneys with
regard to the subject matter, basis or effect of this Agreement other than
those specifically contained herein.
34. Voluntary and Knowing Execution. Executive acknowledges that he has been
offered a reasonable amount of time within which to consider and review
this Agreement; that he has carefully read and fully understands all of the
provisions of this Agreement; and that he has entered into this Agreement
knowingly and voluntarily.
35. Entire Agreement. This Agreement constitutes the entire employment
agreement between the Parties hereto concerning the subject matter hereof
and shall supersede all prior and contemporaneous agreements between the
Parties in connection with the subject matter of this Agreement. Nothing in
this Agreement, however, shall affect any separately-executed written
agreement addressing any other issues (e.g., the Inventions, Improvements,
Copyrights and Trade Secrets Agreement, etc.).
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IN WITNESS WHEREOF, the Parties have signed this Agreement effective as of
the day and year first above written.
EXECUTIVE HILL-ROM, INC.
Signed: By:
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Printed: Title:
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Dated: Dated:
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Exhibit A
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION and RELEASE AGREEMENT ("Agreement") is entered into by and
between Xxxxxxx X. Xxxxxx ("Employee") and Hill-Rom, Inc., ("Company"). To wit,
the Parties agree as follows:
1. Employee's active employment by the Company shall terminate effective [DATE
OF TERMINATION] (Employee's "Effective Termination Date"). Except as
specifically provided by this Agreement, Employee agrees that the Company
shall have no other obligations or liabilities to him following his
Effective Termination Date and that his receipt of the Severance Benefits
provided herein shall constitute a complete settlement, satisfaction and
waiver of any and all claims he may have against the Company.
2. In consideration of the promises contained in this Agreement and contingent
upon Employee's compliance with such promises, the Company agrees to
provide Employee the following:
(i) Severance pay, inclusive of any notice pay obligations, to be paid at
the bi-weekly rate of $_______, less applicable deductions or other
set-offs, for a period up to [WEEKS OF SEPARATION] (___) weeks
following the Employee's Effective Termination Date or until Employee
becomes employed again, whichever first occurs;
(ii) Payment for any earned but unused vacation as of Employee's Effective
Termination Date; and
(iii) Life insurance coverage until the above-referenced Severance Pay
terminates.
3. The above Severance Pay Benefits shall be paid in accordance with the
Company's standard payroll practices (e.g. biweekly) and shall begin on the
first normally scheduled payroll following Employee's Effective Termination
Date or the effective date of this Agreement, whichever occurs last. The
Parties agree that the initial four (4) weeks of the foregoing severance
shall be allocated as additional consideration provided to Employee in
exchange for his execution of a release in compliance with the Older
Workers Benefit Protection Act. The balance of the severance benefits shall
be allocated as consideration for all other promises and obligations
undertaken by Employee, including execution of a general release of claims.
4. As of his Effective Termination Date, Employee will become ineligible to
participate in the Company's health insurance program and continuation of
coverage requirements under COBRA (if any) will be triggered at that time.
However, as additional consideration for the promises and obligations
contained herein, the Company agrees to continue to pay the employer's
share of such coverage as provided under the health care program selected
by Employee as of his Effective Termination Date, subject to any approved
changes in coverage based on a qualified election, until the
above-referenced Severance Pay terminates provided Employee (i) timely
completes the applicable election of coverage forms and (ii) continues to
pay the employee portion of the applicable premium(s). Thereafter, if
applicable, coverage will be made available to Employee at his sole expense
(i.e., Employee will be responsible for the full COBRA premium) for the
remaining months of the COBRA coverage period made available pursuant to
applicable law. The medical insurance provided herein does not include any
disability coverage.
5. Employee agrees to notify the Company in writing within three (3) business
days of Employee's acceptance of any subsequent employment by providing the
name of such employer, his intended duties as well as the anticipated start
date. Such information is required to ensure Employee's compliance with his
non-compete obligations as well as all other applicable restrictive
covenants. This notice will also serve to trigger the Company's right to
terminate the above-referenced severance benefits and Company-paid COBRA
benefits consistent with the above paragraphs. Failure to timely provide
such notice shall be deemed a material breach of this Agreement entitling
the Company to recover as damages the value of all benefits provided to
Employee hereunder.
6. In exchange for the foregoing Severance Benefits, XXXXXXX X. XXXXXX on
behalf of himself, his heirs, representatives, agents and assigns hereby
COVENANTS NOT TO XXX, RELEASES, INDEMNIFIES, HOLDS HARMLESS, and FOREVER
DISCHARGES (i) Hill-Rom, Inc., (ii) its parent, subsidiary or affiliated
entities, (iii) all of their present or former directors, officers,
employees, shareholders, and agents as well as (iv) all predecessors,
successors and assigns thereof from any and all actions, charges, claims,
demands, damages or liabilities of any kind or character whatsoever, known
or unknown, which Employee now has or may have had through the effective
date of this Agreement.
7. Without limiting the generality of the foregoing release, it shall include:
(i) all claims or potential claims arising under any federal, state or
local laws relating to the Parties' employment relationship, including any
claims Employee may have under the Civil Rights Acts of 1866 and 1964, as
amended, 42 U.S.C. Sections 1981 and 2000(e) et seq.; the Civil Rights Act
of 1991; the Age Discrimination in Employment Act, as amended, 29 U.S.C.
Sections 621 et seq.; the Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. Sections 12,101 et seq.; the Fair Labor Standards Act 29
U.S.C. Sections 201 et seq.; the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. Sections 2101, et seq.; and any other federal,
state or local law governing the Parties' employment relationship; (ii) any
claims on account of, arising out of or in any way connected with
Employee's employment with the Company or leaving of that employment; (iii)
any claims alleged or which could have been alleged in any charge or
complaint against the Company; (iv) any claims relating to the conduct of
any employee, officer, director, agent or other representative of the
Company; (v) any claims of discrimination, harassment or retaliation on any
basis; (vi) any claims arising from any legal restrictions on an employer's
right to separate its employees; (vii) any claims for personal injury,
compensatory or punitive damages or other forms of relief; and (viii) all
other causes of action sounding in contract, tort or other common law
basis, including (a) the breach of any alleged oral or written contract,
(b) negligent or intentional misrepresentations, (c) wrongful discharge,
(d) just cause dismissal, (e) defamation, (f) interference with contract or
business relationship or (g) negligent or intentional infliction of
emotional distress.
8. The Parties acknowledge that it is their mutual and specific intent that
the above waiver fully comply with the requirements of the Older Workers
Benefit Protection Act (29 U.S.C. Section 626) and any similar law
governing release of claims. Accordingly, Employee hereby acknowledges
that:
(a) He has carefully read and fully understands all of the provisions of
this Agreement and that he has entered into this Agreement knowingly
and voluntarily;
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(b) The Severance Benefits offered in exchange for Employee's release of
claims exceed in kind and scope that to which he would have otherwise
been legally entitled;
(c) Prior to signing this Agreement, Employee had been advised, and is
being advised by this Agreement, to consult with an attorney of his
choice concerning its terms and conditions; and
(d) He has been offered at least twenty-one (21) days within which to
review and consider this Agreement.
9. The Parties agree that nothing contained herein shall purport to waive or
otherwise affect any of Employee's rights or claims that may arise after he
signs this Agreement.
10. The Parties agree that this Agreement shall not become effective and
enforceable until the date this Agreement is signed by both Parties or
seven (7) calendar days after its execution by Employee, whichever is
later. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days after he
has signed this Agreement, thereby forfeiting Employee's right to receive
any Severance Benefits provided hereunder and rendering this Agreement null
and void in its entirety.
11. The Parties agree that nothing contained herein shall purport to waive or
otherwise affect any of Employee's rights or claims that may arise after he
signs this Agreement. It is further understood by the Parties that nothing
in this Agreement shall affect any rights Employee may have under any
Pension Plan and/or Savings Plan (i.e., 401(k) plan) provided by the
Company as of the date of his termination, such items to be governed
exclusively by the terms of the applicable plan documents.
12. Employee acknowledges that his termination and the Severance Benefits
offered hereunder were based on an individual determination and were not
offered in conjunction with any group termination or group severance
program and waives any claim to the contrary.
13. Employee hereby affirms and acknowledges his continued obligations to
comply with the post-termination covenants contained in his Employment
Agreement, including but not limited to, the non-compete, trade secret and
confidentiality provisions. Employee acknowledges that a copy of the
Employment Agreement has been attached to this Agreement as Exhibit ___ or
has otherwise been provided to him and, to the extent not inconsistent with
the terms of this Agreement or applicable law, the terms thereof shall be
incorporated herein by reference. Employee acknowledges that the
restrictions contained therein are valid and reasonable in every respect
and are necessary to protect the Company's legitimate business interests.
Employee hereby affirmatively waives any claim or defense to the contrary.
14. Employee acknowledges that the Company possesses, and he has been granted
access to, certain trade secrets as well as other confidential and
proprietary information which the Company has acquired at great effort and
expense. Such information includes, without limitation, confidential
information regarding products and services, marketing strategies, business
plans, operations, costs, current or prospective customer information
(including customer contacts, requirements, creditworthiness and like
matters), product concepts, designs, prototypes or specifications,
regulatory compliance issues, research and development efforts, technical
data and know-how, sales information, including pricing and other terms and
conditions of sale, financial information,
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internal procedures, techniques, forecasts, methods, trade information,
trade secrets, software programs, project requirements, inventions,
trademarks, trade names, and similar information regarding the Companies'
business (collectively referred to herein as "Confidential Information").
15. Employee agrees that all such Confidential Information is and shall remain
the sole and exclusive property of the Company. Except as may be expressly
authorized by the Company in writing, or as may be required by law after
providing due notice thereof to the Company, Employee agrees not to
disclose, or cause any other person or entity to disclose, any Confidential
Information to any third party for as long thereafter as such information
remains confidential (or as limited by applicable law) and agrees not to
make use of any such Confidential Information for Employee's own purposes
or for the benefit of any other entity or person.
16. On or before Employee's Effective Termination Date or per the Company's
request, Employee agrees to return the original and all copies of all
things in his possession or control relating to the Company or its
business, including but not limited to any and all contracts, reports,
memoranda, correspondence, manuals, forms, records, designs, budgets,
contact information or lists (including customer, vendor or supplier
lists), ledger sheets or other financial information, drawings, plans
(including, but not limited to, business, marketing and strategic plans),
personnel or other business files, computer hardware, software, or access
codes, door and file keys, identification, credit cards, pager, phone, and
any and all other physical, intellectual, or personal property of any
nature that he received, prepared, helped prepare, or directed preparation
of in connection with his employment with the Company. Nothing contained
herein shall be construed to require the return of any non-confidential and
de minimis items regarding Employee's pay, benefits or other rights of
employment such as pay stubs, W-2 forms, 401(k) plan summaries, benefit
statements, etc.
17. Employee hereby consents and authorizes the Company to deduct as an offset
from the above-referenced severance payments the value of any Company
property not returned or returned in a damaged condition as well as any
monies paid by the Company on Employee's behalf (e.g., payment of any
outstanding American Express xxxx).
18. Employee agrees not to make any written or oral statement that may defame,
disparage or cast in a negative light so as to do harm to the personal or
professional reputation of (a) the Company, (b) its employees, officers,
directors or trustees or (c) the services and/or products provided by the
Company and its subsidiaries or affiliate entities.
19. Employee specifically agrees and understands that the existence and terms
of this Agreement are strictly CONFIDENTIAL and that such confidentiality
is a material term of this Agreement. Accordingly, except as required by
law or unless authorized to do so by the Company in writing, Employee
agrees that he shall not communicate, display or otherwise reveal any of
the contents of this Agreement to anyone other than his spouse, legal
counsel or financial advisor provided, however, that they are first advised
of the confidential nature of this Agreement and Employee obtains their
agreement to be bound by the same. The Company agrees that Employee may
respond to legitimate inquiries regarding the termination of his employment
by stating that the Parties have terminated their relationship on an
amicable basis and that the Parties have entered into a Confidential
Separation and Release Agreement which prohibits him from further
discussing the specifics of his separation. Nothing contained herein shall
be construed to prevent Employee from discussing or otherwise advising
subsequent employers of the existence of any obligations as set forth in
his Employment Agreement. Further, nothing contained herein shall be
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construed to limit or otherwise restrict the Company's ability to disclose
the terms and conditions of this Agreement as may be required by business
necessity.
20. In the event that Employee breaches or threatens to breach any provision of
this Agreement, he agrees that the Company shall be entitled to seek any
and all equitable and legal relief provided by law, specifically including
immediate and permanent injunctive relief. Employee hereby waives any claim
that the Company has an adequate remedy at law. In addition, and to the
extent not prohibited by law, Employee agrees that the Company shall be
entitled to discontinue providing any additional Severance Benefits upon
such breach or threatened breach as well as an award of all costs and
attorneys' fees incurred by the Company in any successful effort to enforce
the terms of this Agreement. Employee agrees that the foregoing relief
shall not be construed to limit or otherwise restrict the Company's ability
to pursue any other remedy provided by law, including the recovery of any
actual, compensatory or punitive damages. Moreover, if Employee pursues any
claims against the Company subject to the foregoing General Release, or
breaches the above Confidential provision, Employee agrees to immediately
reimburse the Company for the value of all benefits received under this
Agreement to the fullest extent permitted by law.
21. Employee acknowledges that this Agreement is entered into solely for the
purpose of terminating his employment relationship with the Company on an
amicable basis and shall not be construed as an admission of liability or
wrongdoing by the Company and further acknowledges that the Company has
expressly denied any such liability or wrongdoing.
22. Each of the promises and obligations shall be binding upon and shall inure
to the benefit of the heirs, executors, administrators, assigns and
successors in interest of each of the Parties.
23. The Parties agree that each and every paragraph, sentence, clause, term and
provision of this Agreement is severable and that, if any portion of this
Agreement should be deemed not enforceable for any reason, such portion
shall be stricken and the remaining portion or portions thereof should
continue to be enforced to the fullest extent permitted by applicable law.
24. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Indiana without regard to any applicable state's
choice of law provisions.
25. Employee represents and acknowledges that in signing this Agreement he does
not rely, and has not relied, upon any representation or statement made by
the Company or by any of the Company's employees, officers, agents,
stockholders, directors or attorneys with regard to the subject matter,
basis or effect of this Agreement other than those specifically contained
herein.
26. This Agreement represents the entire agreement between the Parties
concerning the subject matter hereof, shall supercede any and all prior
agreements which may otherwise exist between them concerning the subject
matter hereof (specifically excluding, however, the post-termination
obligations contained in any existing Employment Agreement or other
legally-binding document), and shall not be altered, amended, modified or
otherwise changed except by a writing executed by both Parties.
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PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the Parties have themselves signed, or caused a duly
authorized agent thereof to sign, this Agreement on their behalf and thereby
acknowledge their intent to be bound by its terms and conditions.
"EMPLOYEE" HILL-ROM, INC.
Signed: By:
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Printed: Title:
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Dated: Dated:
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