EXHIBIT 10.13
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement") by and between Medical Resources,
Inc., a Delaware corporation (the "Company"), and Xxxxxxxxxxx X. Xxxxx (the
"Executive"), dated as of the 6th day of April, 1998.
W I T N E S S E T H:
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1. Employment Period. Subject to the terms and conditions of this
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Agreement, the Company hereby agrees to employ the Executive and the Executive
hereby agrees to remain in the employ of the Company, for the period commencing
on April 6, 1998 (the "Effective Date") and ending on the date this Agreement is
terminated in accordance with Section 3 (the "Employment Period").
2. Terms of Employment. (a) Position and Duties. (i) Commencing
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on the Effective Date and for the remainder of the Employment Period, the
Executive shall be the Senior Vice President - Legal Affairs and Administration
of the Company, which position shall encompass serving as the Company's General
Counsel and Secretary. Executive shall report exclusively to the Company's
Chief Executive Officer (the "CEO") and shall have such duties, responsibilities
and authority as shall be determined by the CEO in good faith. The Executive
shall be based at the Company's offices in Hackensack, New Jersey, provided that
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the Executive shall perform such duties and responsibilities not involving a
permanent transfer of his base of operations outside of Hackensack, New Jersey
at such other places as shall from time to time be necessary to fulfill his
obligations hereunder.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote full time during normal business hours to the business and affairs of
the Company and to use the Executive's best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period the Executive
shall not be engaged in any other business activity whether or not such business
activity is pursued for gain, profit or other pecuniary advantage, but this
shall not be construed as preventing the Executive from investing his personal
assets in businesses which do not compete with the Company in such form or
manner as will not require any services on the part of the Executive in the
operation of the affairs of the companies in which such investments are made and
in which his participation is solely that of an investor, and except that the
Executive may purchase securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in
his owning beneficially at any time, other than through a registered investment
company, one percent (1%) or more of the equity securities of any corporation
engaged in a business competitive with that of the Company.
(b) Compensation. (i) Base Salary. During the Employment Period, the
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Executive shall receive an annual base salary ("Annual Base Salary") of
$170,000. The Annual Base Salary shall be paid in accordance with the normal
payroll practices of the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the Executive
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shall be eligible to receive an annual bonus (the "Annual Bonus") for each
calendar year during the Employment Period, provided that the Executive is
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employed on the last day of such calendar year. For calendar year 1998,
Executive shall receive an Annual Bonus in an amount not less than fifty percent
(50%) of the Annual Base Salary in effect for 1998. For all other calendar
years during the Employment Period, the target amount of the Annual Bonus for
any year shall be fifty percent (50%) of the Annual Base Salary in effect for
that year. The actual amount of the Annual Bonus for any calendar year shall be
determined by the Board at its discretion and paid no later than March 15 of the
calendar year following the calendar year for which the Annual Bonus is awarded;
provided that the Annual Bonus shall be paid at the same time as the bonuses
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paid to other senior executives of the Company.
(iii) Stock Options. The Executive shall be granted, on the Effective
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Date, nonqualified stock options (the "Options") to acquire 120,000 shares of
the common stock of the Company, $0.01 par value per share (the "Common Stock"),
at an exercise price per share equal to $10.625. The Options shall have a term
of ten years from the date of grant and shall vest and become exercisable in
equal installments on the first, second, third and fourth anniversaries of the
Effective Date, provided Executive remains in the employ of the Company on each
such anniversary date; provided, however, that in the event of a "Change in
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Control" (as defined in Section 7), any outstanding unvested Options shall
become immediately vested and exercisable. All terms and conditions relating to
the Options shall be set forth in a stock option agreement (attached hereto as
Exhibit A) to be executed by the Company and the Executive on the Effective
Date.
(iv) Benefit Plans. During the Employment Period, the Executive and/or
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the Executive's family, as the case may be, shall be eligible for participation
in and shall receive all benefits under employee benefit plans provided by the
Company (including, without limitation, medical, prescription, dental,
disability, group life, accidental death and travel accident insurance plans and
programs, and incentive, savings and
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retirement plans and programs) to the extent applicable generally to other
senior executives of the Company.
(v) Insurance. The Company shall maintain such insurance for the
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protection of the Executive as is appropriate and customary for the officers and
directors of entities engaged in the Company's business. Such insurance shall
cover Executive with respect to his services for the Company and affiliates
thereof (including as a director, if applicable).
(vi) Expenses. During the Employment Period, the Company shall pay or
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promptly reimburse the Executive for all reasonable business expenses upon
presentation of receipts therefor in accordance with the normal practices of the
Company.
(vii) Automobile Allowance. During the Employment Period, the
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Executive shall be reimbursed for the actual cost of (A) leasing and insuring an
automobile, up to a maximum of $750.00 per month, increased as of each January 1
in the Employment Period to reflect increases in the United States Consumer
Price Index for All Urban Consumers, and (B) parking expenses at a garage in New
York City, up to a maximum of $350.00 per month, increased as of each January 1
in the Employment Period to reflect increases in the United States Consumer
Price Index for All Urban Consumers.
(viii) Vacation. During the Employment Period, the Executive shall be
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entitled to three weeks of paid vacation per year.
3. Termination of Employment. (a) Death or Disability. The
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Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Board determines in good faith that the
"Disability" (as defined below) of the Executive has occurred during the
Employment Period, it may terminate the Executive on account of such Disability.
For purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a full-time basis for
90 consecutive days, or 90 out of 120 consecutive days, as a result of
incapacity due to mental or physical illness which is determined by the Board to
prevent the Executive from performing his duties to the Company.
(b) With or Without Cause. The Company may terminate the Executive's
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employment during the Employment Period with or without Cause. For purposes of
this Agreement, "Cause" shall mean: (i) a material breach by the Executive of
the terms of this Agreement, (ii) the conviction of, or plea of guilty or no
contest to, a felony or crime involving moral turpitude, or (iii) a failure by
the Executive to follow the reasonable lawful
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instructions of the CEO; provided that the Executive may be terminated for Cause
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pursuant to clause (iii) above only after a written demand for substantial
performance is delivered to the Executive by the CEO, which specifically
identifies the manner in which the CEO believes that the Executive has not
followed the lawful instructions of the CEO, and the Executive fails to cure
such noncompliance within thirty days after receipt of such demand.
(c) With or Without Good Reason. The Executive's employment may be
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terminated by the Executive with or without Good Reason. For purposes of this
Agreement, "Good Reason" shall mean, without the Executive's prior written
consent, a material breach by the Company of this Agreement (and without
limitation, any breach by the Company of its obligations pursuant to the last
sentence of Section 2(a)(i) hereof shall be a material breach), other than a
breach which is remedied by the Company within 30 days after receipt of notice
thereof given by the Executive.
(d) Notice of Termination. Any termination by the Company or by the
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Executive shall be communicated to the other party by a "Notice of Termination"
(as defined below) to the other party hereto given in accordance with Section
10(e) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the "Date of Termination" (as defined Section 3(e)) is
other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty days after the giving of such notice).
The failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause, whether or not known at the time, shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
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Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be; (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, or
by the Executive without Good Reason, the Date of Termination shall be the date
of receipt of the Notice of Termination or any later date specified therein, as
the case may be; and (iii) if the Executive's employment is terminated by reason
of death or
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Disability, the Date of Termination shall be the date of death of the Executive
or the first date on which the Board makes the determination that the Executive
shall be terminated as a result of his having been absent from his duties to the
extent required by the definition of Disability set forth in Section 3(a) of
this Agreement, as the case may be.
4. Obligations of the Company Upon Termination. (a) Good Reason;
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Other Than for Cause or Disability. If the Executive shall terminate employment
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for Good Reason or the Company shall terminate the Executive's employment other
than for Cause or Disability:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the sum of (A) the Executive's
Annual Base Salary through the Date of Termination to the extent not previously
paid ("Accrued Salary"), (B) if such termination occurs following the end of a
calendar year and, prior to or following such termination, an Annual Bonus for
such calendar year is determined by the Board acting in good faith to have been
earned, the amount of such Annual Bonus ("Accrued Bonus"), and (C) if such
termination occurs prior to the end of a calendar year, thereby causing
Executive to be ineligible for an Annual Bonus pursuant to Section 2(b)(ii)
hereof, an amount of bonus determined by the Board acting in good faith to have
been earned for the portion of such calendar year that Executive was employed
("Partial Bonus");
(ii) the Company shall continue to pay to the Executive his Annual Base
Salary, in effect as of the Date of Termination, for a period of nine months
following the Date of Termination, payable in accordance with the Company's
normal payroll practices; and
(iii) the Company shall continue to provide to the Executive for a
period of nine months following the Date of Termination, benefits under
"employee welfare plans" (as defined in Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended), at least equal to those which are
provided to the senior executives of the Company during such period; provided,
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however, that if the Executive becomes reemployed with another employer and is
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eligible to receive any of such benefits under another employer provided plan at
the other employer's cost, other than reasonable and customary employee
contributions (whether or not he actually elects to receive such benefits), the
corresponding benefits described herein shall be terminated; further, provided,
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however, that the Company shall not be required to provide any such benefit if
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the effect thereof would be to violate the terms of any law, plan or insurance
policy or jeopardize the tax benefit associated with such benefit to which the
Company otherwise would be entitled, but in such event, the
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Company shall pay to the Executive, in cash, an amount equal to the cost of
providing such benefit. Any such benefits provided by another employer shall be
promptly reported by the Executive to the Company as the Executive becomes
eligible therefor.
(b) Death, Disability, With Cause, Without Good Reason. If the
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Executive's employment is terminated by reason of the Executive's death,
Disability, termination by the Company with Cause or termination by the
Executive without Good Reason, this Agreement shall terminate without further
obligations to the Executive or his legal representatives under this Agreement,
other than for payment of Accrued Salary and, in the case of a termination by
reason of death or Disability, payment of Accrued Bonus and Partial Bonus, which
shall be paid to the Executive or his estate or beneficiary, as applicable, in a
lump sum in cash within 30 days following the Date of Termination. If the
Executive's employment is terminated for Cause, nothing in this Agreement shall
prevent the Company from pursuing any other available remedies against the
Executive.
5. Confidential Information; Nonsolicitation; Noncompetition;
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Nondisparagement. (a) The Executive shall hold in a fiduciary capacity for the
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benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive during the
Executive's employment by the Company and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it.
(b) The Executive hereby covenants and agrees that for nine (9) months
following the termination of the Executive's employment for any reason, the
Executive shall not, directly or indirectly, employ or seek to employ any person
who is at the Date of Termination, or was at any time within the six-month
period preceding the Date of Termination, an employee of the Company or any of
its subsidiaries or affiliates or otherwise cause or induce any employee of the
Company or any of its subsidiaries or affiliates to terminate such employee's
employment with the Company or such subsidiary or affiliate for the employment
of another company.
(c) The Executive hereby covenants and agrees that during the Employment
Period and for nine (9) months following the termination of the Executive's
employment for any reason, the
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Executive will not, without the prior written consent of the Company, engage in
"Competition" (as defined below) with the Company. For purposes of this
Agreement, if the Executive takes any of the following actions he will be
engaged in "Competition:" engaging in or carrying on, directly or indirectly,
any enterprise, whether as an advisor, principal, agent, partner, officer,
director, employee, stockholder, associate or consultant to any person,
partnership, corporation or any other business entity, that is principally
engaged in any business in which the Company is engaged, or is contemplating
becoming engaged, on the Date of Termination, in any area in which the Company
is then engaged, or is then contemplating being engaged, in such business;
provided, however, that "Competition" will not include (i) the mere ownership of
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securities in any enterprise and exercise of rights appurtenant thereto or (ii)
participation in management of any enterprise or business operation thereof
other than in connection with the competitive operation of such enterprise.
(d) The Executive hereby covenants and agrees that during the Employment
Period and for nine (9) months following the termination of the Executive's
employment for any reason, the Executive will not assist a third party in
preparing or making an unsolicited bid for the Company, engaging in a proxy
contest with the Company, or engaging in any other similar activity.
(e) During the Term and following the termination of the Executive's
employment for any reason, the parties hereto each agree not to make disparaging
public statements concerning the other, provided that nothing herein shall
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prevent either party hereto from enforcing its rights hereunder; further,
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provided that the foregoing shall not prohibit Executive and the Company from
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making good faith comparative claims regarding the products and services of the
Company and those of an entity by which Executive may be employed following
termination of his employment hereunder, if the making of such claims does not
otherwise violate this Agreement.
(f) The Executive acknowledges that a breach of any of the covenants
contained in Section 5(a), (b), (c), (d) or (e) may result in material
irreparable injury to the Company for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injury precisely and
that, in the event of such a breach or threat thereof, the Company shall be
entitled to a temporary restraining order and/or a preliminary or permanent
injunction, restraining the Executive from engaging in such prohibited
activities or such other relief as may be required specifically to enforce any
of the covenants contained therein. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies for such breach or
threatened breach.
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(g) The restrictions set forth in Section 5(a), (b), (c), (d) and (e) are
considered by the parties hereto to be reasonable for the purposes of protecting
the business of the Company. However, if any such restriction is found by a
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it is the intention of the parties that such restriction shall
be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
6. Post-Termination Assistance. The Executive agrees that after his
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employment with the Company has terminated he will provide, upon reasonable
notice, such information and assistance to the Company as may reasonably be
requested by the Company in connection with any audit, governmental
investigation or litigation in which it or any of its affiliates is or may
become a party; provided, however, that (a) the Company agrees to reimburse the
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Executive for any related out-of-pocket expenses, including travel expenses,
and, if the Executive is not then being paid severance pursuant to Section
4(a)(ii), to pay the Executive reasonable compensation for his time based on his
rate of Annual Base Salary at the time of termination and (b) any such
assistance may not unreasonably interfere with the then-current employment of
the Executive.
7. Change in Control. For purposes of this Agreement, a "Change in
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Control" shall mean:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more (on a
fully diluted basis) of either (i) the then outstanding shares of Common Stock,
taking into account as outstanding for this purpose such shares issuable upon
the exercise of options or warrants, the conversion of convertible shares or
debt, and the exercise of any similar right to acquire shares (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors or member managers (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this Section 7(a), the following
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acquisitions shall not constitute a Change in Control: (A) any acquisition by
the Company or any "affiliate" of the Company, within the meaning of 17 C.F.R.
(S) 230.405 (an "Affiliate"), (B) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any Affiliate of
the Company, (C) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of Section 7(c),
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or (D) any acquisition by any entity in which the Executive has a direct or
indirect equity interest of greater than five percent; or
(b) Individuals who, as of the Effective Date, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
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the Effective Date whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of
the then outstanding shares of common stock or interests and the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation or other
entity resulting from such Business Combination (including, without limitation,
a corporation or entity which as a result of such transaction owns the Company
or all or substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, and (ii) no Person (excluding (A) any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Affiliate of the Company,
or such corporation resulting from such Business Combination or any Affiliate of
such corporation, or (B) any entity in which the Executive has a direct or
indirect equity interest of greater than five percent or any Affiliate of such
entity) beneficially owns, directly or indirectly, 50% or more (on a fully
diluted basis) of, respectively, the then outstanding shares of common stock or
interests of the corporation or entity resulting from such Business Combination,
taking into account as outstanding for this purpose such common stock or
interests issuable upon the
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exercise of options or warrants, the conversion of convertible stock, interests
or debt, and the exercise of any similar right to acquire such common stock or
interests, or the combined voting power of the then outstanding voting
securities of such corporation or other entity except to the extent that such
ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors or equivalent governing body
of the corporation or other entity resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(d) Approval by the shareholders or equityholders of the Company of a
complete liquidation or dissolution of the Company.
8. Successors (a) This Agreement is personal to the Executive and
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without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
heirs and personal and legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
9. Indemnification. (a) Indemnification. Executive shall be
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indemnified and held harmless by the Company to the fullest extent permitted by
applicable law, as the same exists or may hereafter be amended, against all
expenses, liability and loss (including attorneys' fees, judgments, fines, and
amounts paid or to be paid in any settlement approved in advance by the Company,
such approval not to be unreasonably withheld) (collectively, "Indemnifiable
Expenses") actually incurred or suffered by Executive in connection with any
present or future threatened, pending or contemplated investigation, claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative, to which Executive is a defendant, is threatened to be made a
defendant, or is or has been identified as a target in connection with any
criminal investigation or proceeding by reason of any action or inaction taken
by Executive, within the scope of Executive's present or former employment by,
or service as a director for, the Company in Executive's capacity as an officer,
employee or director of the Company or any of its subsidiaries or affiliates
(collectively, "Indemnifiable Litigation").
(b) Advance Payment of Interim Expenses. The Company agrees to pay promptly
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Indemnifiable Expenses incurred by Executive in connection with any
Indemnifiable Litigation in advance of the final disposition thereof, provided
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that the
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Company has received an undertaking by or an behalf of Executive, to the extent
required by law, to repay the amount so advanced to the extent that it is
finally adjudicated by court order or judgment from which no further right of
appeal exists that Executive is not entitled to be indemnified by the Company
under this Agreement or otherwise. The advances to be made hereunder shall be
paid by the Company to Executive within ten (10) business days following
delivery of a written request therefor by Executive to the Company.
(c) Provision of Counsel Where Executive Is Not A Defendant Or Target. The
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Company shall provide Executive with legal representation, at no cost to the
Executive, in the event that the Executive shall be called upon to provide sworn
testimony in connection with any investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative
(collectively a "Non-Party Proceeding") as to which Executive is not a defendant
or target. The Company may designate one counsel to represent both the Company
and/or one or more directors or officers of the Company. Executive may reject
the counsel designated and require the Company to designate other counsel only
in the event that designated counsel has a disqualifying conflict of interest.
Executive may, at his own expense, retain counsel of his own choosing at any
time.
(d) Procedure for Making Demand. Executive shall, as a condition precedent
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to his rights under this Section 9, give the Company notice in writing as soon
as practicable of any claim or demand made against Executive for which
indemnification or the provision of counsel will or could be sought under this
Section 9. No failure to give such notice shall relieve the Company from any
obligations hereunder, except to the extent, if any, such failure shall
materially and adversely affect and prejudice the Company. Notice to the
Company shall be directed to the Company at the address set forth in Section
10(e) hereof (or such other address as the Company shall designate in writing to
Executive). In addition, Executive shall give the Company such information and
cooperation as it may reasonably require and as shall be within Executive's
power, unless prohibited by law. Any indemnification or appointment of counsel
provided for hereunder shall be made no later than ten (10) business days after
receipt of the written request of Executive.
(e) Failure to Indemnify. (i) If a claim under this Section 9 for
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indemnification or appointment of counsel is not paid in full by the Company or
satisfied within ten (10) business days after a written request for payment
thereof has been received by the Company, Executive may, but need not, at any
time thereafter bring an action against the Company and, if successful in whole
or in part, Executive shall also be entitled to be paid
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all expenses (including attorneys' fees and expenses) of bringing such action.
(ii) It shall be a defense to such action (other than an action brought
to enforce a claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Executive has not met the
standard of conduct which make it permissible under applicable law for the
Company to indemnify Executive for the amount claimed, but the burden of proving
such defense shall be on the Company and Executive shall be entitled to receive
interim payments of interim expenses pursuant to Section 9(b) hereof unless and
until such defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties' intention that if
the Company contests Executive's right to indemnification, the question of
Executive's right to indemnification shall be for the Court to decide, and
neither the failure of the Company (including the Board, independent legal
counsel or its stockholders) to have made a determination that indemnification
of Executive is proper in the circumstances because Executive has met the
applicable standard of conduct required by applicable law, nor an actual
determination by the Company (including the Board, any committee or subgroup of
the Board, independent legal counsel, or its stockholders) that Executive has
not met such applicable standard of conduct, shall create a presumption that
Executive has or has not met the applicable standard of conduct.
(f) Notice to Insurers. At the time of the receipt of a notice of a claim
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pursuant to Section 9(c) hereof, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective director and officer liability insurance
policies. The Company shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Executive, all amounts payable
as a result of such proceeding in accordance with the terms of such policies.
(g) Retention of Counsel. In the event that the Company shall be obligated
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to pay Indemnifiable Expenses under Section 9(a) of this Agreement as a result
of any proceeding against Executive, the Company shall be entitled to assume the
defense of such proceeding, with counsel approved by Executive, which approval
shall not be unreasonably withheld, upon the delivery to Executive of written
notice of its election to do so. The Executive may withhold such approval if he
reasonably concludes that there may be a conflict of interest or position on any
significant issue between the Company and the Executive in the conduct of the
defense of such proceeding. After delivery of such notice, approval of such
counsel by Executive and the retention of such counsel by the Company to
represent the Executive, the
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Company will not be liable to Executive under this Agreement for any fees of any
other counsel subsequently incurred by Executive with respect to that same
proceeding; provided, however, that in the event of a proceeding brought by
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shareholders of the Company in the right of the Company, the Company agrees to
retain counsel which is different and separate from the Company's counsel to
represent Executive in such proceeding, subject to the other terms and
conditions of this Section 9(g).
(h) Contract Rights Not Exclusive. The contract rights conferred by this
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Section 9 shall be in addition to, but not exclusive of, any right which
Executive may have or may hereafter acquire under any statute, provision of the
Company's Certificate of Incorporation or Bylaws, agreement, vote of
shareholders or disinterested directors, or otherwise. Nothing in this Section
9 shall be construed to affect or modify any much right.
(i) Attorneys' Fees. In the event that any action is instituted by
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Executive under this Agreement to enforce or interpret any of the terms of this
Section 9 and Executive prevails or substantially prevails in such action,
Executive shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Executive with respect to such action.
In the event of an action instituted by or in the name of the Company under this
Section 9 to enforce or interpret any terms hereof and Executive prevails or
substantially prevails in such action, Executive shall be entitled to be paid
all court costs and expenses, including attorneys' fees, incurred by Executive
in defense of such action (including with respect to Executive's counterclaims
and cross-claims made in such action).
10. Miscellaneous. (a) Governing Law. This Agreement shall be
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governed by and construed in accordance with the laws of the State of Delaware,
without reference to principles of conflict of laws.
(b) Captions and Amendments. The captions of this Agreement are not part of
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the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(c) Stipulation. Executive hereby stipulates to the Company that on the
-----------
date of this Agreement, neither Executive nor his affiliates has any claim of
any type against the Company, except claims that may arise under this Agreement,
and represents and warrants that this Agreement does not conflict with any other
agreement to which Executive is a party.
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(d) Construction. The parties have participated jointly in the negotiation
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and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(e) Notices. All notices and other communications hereunder shall be in
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writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
-------------------
Xx. Xxxxxxxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx, #0-X
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000 000-0000
If to the Company:
-----------------
Medical Resources, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Tel: 000 000-0000
Fax: 000 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Tel: 000 000-0000
Fax: 000 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(f) Enforceability. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
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(g) Withholding. The Company may withhold from any amounts payable under
-----------
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(h) No Waiver. The Executive's or the Company's failure to insist upon
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strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement. No waiver of any provision of
this Agreement by the Company or the Executive shall be effective unless it is
in a writing signed by the party against whom enforcement is sought.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused this Agreement to be executed in its name on its behalf, all as of
the day and year first above written.
This instrument may be executed in any number of counterparts, each of
which shall be deemed to be an original, and such counterparts together shall
constitute one and the same instrument.
XXXXXXXXXXX X. XXXXX
------------------------
MEDICAL RESOURCES, INC.
By:
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Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
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