EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT
dated as
of January 1, 2006 between AMERICAN MEDICAL ALERT CORP., a New York corporation
(the "Company"), with offices located at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxx
Xxxx 00000 and XXXXXXX XXXXX, an individual having an address at 0 Xxxxxxx
Xxxxx, Xxxxxxxx, XX 00000 ("Employee").
W
I T N E
S S E T H:
WHEREAS,
the
Company desires to retain the services of Employee upon the terms and conditions
stated herein; and
WHEREAS,
Employee desires to continue to be employed by the Company upon the terms and
conditions stated herein.
NOW,
THEREFORE,
in
consideration of the mutual covenants, conditions and promises contained herein,
the parties hereby agree as follows:
1. Employment.
The
Company hereby employs Employee for the period beginning as of January 1, 2006
and ending December 31, 2008 (the "Expiration Date"), unless earlier terminated
pursuant hereto (the "Employment Period").
2. Duties.
Subject
to the authority of the Board of Directors, the Chief Executive Officer and
the
President of the Company, Employee shall be employed as the Company's Chief
Financial Officer. Employee will perform such duties and services of an
executive nature, commensurate with his position as the Chief Financial Officer,
as may from time to time be assigned to him by the Chief Executive Officer
or
the President of the Company. The Employee shall report to the Company's Chief
Executive Officer and President, and as necessary or appropriate, and in any
event as required by law, to the audit committee of the Board of
Directors.
3. Full
Time.
Employee agrees that he will devote his full time and attention during regular
business hours to the business and affairs of the Company. The foregoing shall
not prevent the purchase, ownership or sale by Employee of investments or
securities of publicly held companies and any other business that is not
competitive with the Company or any subsidiary of the Company so long as such
investment does not require active participation of Employee in the management
of the business of such publicly held companies, does not interfere or conflict
with the performance of Employee's duties hereunder and does not otherwise
violate any of the provisions of this Agreement, or Employee's participation
in
philanthropic organizations to the extent that such participation does not
interfere or conflict with the performance of Employee's duties hereunder and
does not otherwise violate any provision of this Agreement.
4. Compensation.
In
consideration of the duties and services to be performed by Employee hereunder,
the Company agrees to pay, and Employee agrees to accept the amounts set forth
below:
(a) A
base
salary, to be paid on a bi weekly basis, at the rate of:
(i) $170,000
per annum, for the period beginning January 1, 2006 and ending December 31,
2006;
(ii) $185,000
per annum, for the period beginning January 1, 2007 and ending December 31,
2007; and
(iii) $200,000
per annum, for the period beginning January 1, 2008 and ending December 31,
2008.
(b) In
addition to the base salary payable pursuant to Section 4(a) above, and subject
to subparagraph (c) below, the Employee shall be eligible for the following
stock grant payable in the Company's common stock:
10,000
shares of common stock, to vest, subject to the condition that Employee is
employed by the Company at the applicable date, as follows: 2,500 shares on
December 31, 2006, 3,500 shares on December 31, 2007 and 4,000 shares on
December 31, 2008; provided,
however,
that in
the event of a Change in Control (as hereinafter defined), if the Company or
its
successor pursuant to such Change in Control, as applicable, and the Employee,
either agree to continue this Agreement or to enter into a new employment
agreement mutually acceptable to the Company or its successor and the Employee
in lieu of this Agreement, then any such shares which remain unvested, shall
vest immediately upon the mutual agreement of the Company or its successor
and
the Employee to continue this Agreement or to enter into a new
agreement.
(c) The
bonus
stock grant provided for in subparagraph (b) above shall be issued to the
Employee following the negotiation and execution of a stock grant agreement
between the Company and the Employee. The bonus stock issued pursuant to
subparagraph (b) shall be subject to forfeiture to the extent such shares do
not
vest. All shares to be issued pursuant to such stock grant agreement shall
be
issued out of the Company's 2005 Stock Incentive Plan.
(d) The
Employee shall be eligible for additional cash or equity bonus payments which
may be awarded by the Board of Directors of the Company in its sole discretion.
(e) The
compensation provided for herein shall be in addition to any retirement, profit
sharing, insurance or similar benefit which may at any time be payable to
Employee pursuant to any plan or policy of the Company relating to such
benefits, which additional benefits shall be made available to Employee on
the
same basis as they are generally made available to other executive officers
of
the Company. Such compensation shall be in addition to any options which may
be
granted under any stock option plan of the Company.
(f) The
Company shall reimburse Employee in accordance with the Company's normal
policies for all reasonable travel, hotel, meal and other expenses properly
incurred by him in the performance of his duties hereunder.
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(g) The
Company shall provide Employee with a monthly automobile stipend in the amount
of $800.00.
(h) As
an
inducement to enter into this Agreement, the Company shall pay Employee a
one-time $5,000.00 cash bonus upon execution of this Agreement by
Employee.
5. Vacation.
Employee shall be entitled to three (3) weeks vacation each fiscal year, to
be
taken at such time as is mutually convenient to the Company and
Employee.
6. Death.
In the
event of the death of Employee during the Employment Period, this Agreement
and
the employment of Employee hereunder shall terminate on the date of the death
of
Employee. The estate of Employee (or such person(s) as Employee shall designate
in writing) shall be entitled to receive, and the Company agrees to continue
to
pay, in accordance with the normal pay practice of the Company, the base salary
of Employee provided by paragraph 4(a) and the additional benefits, if any,
provided by paragraph 4(e), in each instance for a period of one (1) year
following the date of death of Employee.
7. Disability.
In the
event that Employee shall be unable to perform because of illness or incapacity,
physical or mental, the duties and services to be performed by him hereunder
for
a period of one hundred and eighty (180) consecutive days or an aggregate period
of more than one hundred and eighty (180) days in any 12-Month period, the
Company may terminate this Agreement after the expiration of such period. Upon
such termination, Employee shall be entitled to receive the base salary provided
by paragraph 4(a) and the additional benefits, if any, provided by paragraph
4(e), in each instance through the date of such termination.
8. Non-Competition,
Non-Solicitation and Non-Disclosure.
1)
Employee
covenants and agrees that throughout the Employment Period and for a period
of
twelve (12) months thereafter, he will not, directly or indirectly, own, manage,
operate or control, or participate in the ownership, management, operation
or
control of, any business competing directly in the United States of America
with
the business conducted by the Company or any subsidiary of the Company during
the Employment Period; provided,
however,
that
Employee may own not more than 5% of the outstanding securities of any class
of
any corporation engaged in any such business, if such securities are listed
on a
national securities exchange, the NASDAQ Stock Market or regularly traded in
the
Over the Counter market by a member of a national securities association.
(b) Employee
covenants and agrees that, (i) throughout the Employment Period, he will not
directly or indirectly solicit, entice or induce any person (collectively,
“Solicit”) who during the Employment Period is associated with, employed by or
is a customer of the Company or any subsidiary, and (ii) for a period of twelve
(12) months following the Employment Period, he will not Solicit any person
who
is, or within the last three months of Employee's employment by the Company
was,
associated with, employed by, or was a customer of the Company or any subsidiary
of the Company, in each case, to leave the employ of, terminate his association
or its relationship with the Company, or any subsid-iary of the Company, or
solicit the employment or business of any such person on his own behalf or
on
behalf of any other business enterprise.
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(c) Employee
covenants and agrees that, throughout the Employment Period and at all times
thereafter, he will not use, or disclose to any third party, trade secrets
or
confidential information of the Company, including, but not limited to,
confidential information or trade secrets belonging or relating to the Company,
its subsidiaries, affiliates, customers and clients or proprietary processes
or
procedures of the Company, its subsidiaries, affiliates, customers and clients,
or the Company’s or its subsidiaries’ business, business plans, investments,
customers, strategies, operations, records, financial information, assets,
technology, data and information that reveals the processes, methodologies,
technology or know-how of the Company or its subsidiaries. Trade secrets and
confidential information shall include, but shall not be limited to, all
information which is known or intended to be known only by employees of the
Company, its respective subsidiaries and affiliates or others in a confidential
relationship with the Company or its respective subsidiaries and affiliates
which relates to business matters.
(d) If
any
term of this paragraph 8 is found by any court having jurisdiction to be too
broad, then and in that case, such term shall nevertheless remain effective,
but
shall be considered amended (as to the time or area or otherwise, as the case
may be) to a point considered by said court as reason-able, and as so amended
shall be fully enforceable.
(e) In
the
event that Employee shall breach or threaten to breach any provision of this
Agreement (including but not limited to the provisions of this paragraph 8),
then Employee hereby consents to the granting of a temporary or permanent
injunction against him by a court of competent jurisdiction prohibiting him
from
violating any provision of this Agreement. In any proceeding for an injunction
and upon any motion for a temporary or permanent injunction, Employee agrees
that his ability to answer in damages shall not be a bar or interposed as a
defense to the granting of such temporary or permanent injunction against
Employee. Employee further agrees that the Company will not have an adequate
remedy at law in the event of any breach or threatened breach by Employee
hereunder and that the Company will suffer irreparable damage and injury if
Employee breaches any of the provisions of this Agreement.
9. Termination;
Non-Renewal.
(a) The
Company may terminate this Agreement without liability (other than for the
base
salary and any other compensation pro-vided in paragraph 4 accrued to the date
of termination) in the event of (i) a material breach by Employee of the
provisions of this Agreement, which breach shall not have been cured by Employee
within one hundred twenty (120) days following notice thereof by the Company
to
Employee, (ii) the commission of gross negligence or bad faith (i.e., an act
involving actual or constructive fraud, or a design to mislead or deceive
another, or the conscious doing of a wrong because of dishonest purpose or
motivated by ill will) by Employee in the course of his employment hereunder,
which commission has a material adverse effect on the Company, (iii) the
commission by Employee of a criminal act of fraud, theft or dishonesty causing
material damages to the Company or any of its subsidiaries, (iv) the conviction
of Employee of (or plead nolo contendere
to) any
felony, or misdemeanor involving moral turpitude if such misdemeanor results
in
material financial harm to or materially adversely affects the goodwill of
the
Company, or (v) any violation by Employee of the Company’s Code of Business
Conduct and Ethics or the Company’s sexual harassment and other forms of
harassment policy or drug and alcohol abuse policy, as set forth in the
Company’s employee handbook. The circumstances specified in (i) through (v)
above shall be defined as “Cause.”
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(b) Unless
the Employee is terminated for Cause pursuant to Section 9(a) above on or prior
to the Expiration Date, and other than in the circumstances described in Section
9(d), in the event that the Company does not offer Employee to enter into a
written employment agreement with terms and conditions no less favorable than
substantially the same terms and conditions as this Agreement to begin
immediately following the Expiration Date, Employee shall receive, in
consideration of his continuing obligations under Section 8 hereof, payment
of
base salary, based on the then applicable salary level, for a period of twelve
(12) months, commencing immediately following the date of the expiration of
the
Employment Period, unless such payment shall be delayed pursuant to Section
19
hereof. Employee’s right to any payments pursuant to this Section 9(b) shall be
in addition to, and not in lieu of, any damages for the termination by the
Company of this Agreement prior to the Expiration Date for any reason other
than
those set forth in Section 9(a) above.
(c) After
a
Change in Control (as hereinafter defined) has occurred, Employee may terminate
his employment upon thirty (30) days' written notice to the Company within
one
hundred and eighty (180) days following such a Change in Control and after
he
has obtained actual knowledge of the occurrence of any of the following events:
(i) Failure
to elect or appoint, or re-elect or re-appoint, Employee to, or removal of
Employee from, his office and/or position with the Company as constituted
prior to the Change in Control, except in connection with the termination of
Employee's employment pursuant to Section 9(a) hereof;
(ii) A
reduction in Employee's overall compensation (including any reduction in pension
or other benefit programs or perquisites) or a material adverse change
in
the
nature or scope of the authorities, powers, functions or duties normally
attached to Employee's position with the Company as referred to in Section
2
hereof;
(iii) A
determination by Employee made in good faith that, as a result of a Change
in
Control, he is unable effectively to carry out the authorities, powers,
functions or duties attached to his position with the Company as referred to
in
Section 2 hereof, and the situation is not remedied within thirty (30) days
after receipt by the Company of written notice
from Employee of such determination;
(iv) A
breach
by the Company of any provision of this Agreement not covered by clauses (i),
(ii) or (iii) of this Section 9(c), which is not remedied within thirty (30)
days after receipt by the Company of written notice from Employee of such
breach;
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(v) A
change
in the location at which substantially all of Employee's duties with the Company
are to be performed to a location which is not within a 50-mile radius of the
address of the place where Employee is performing services prior to the date
of
the
Change in Control; or
(vi) failure
by the Company or its successor pursuant to such Change in Control, as
applicable, and the Employee to either agree to continue this Agreement or
to
enter into a new employment agreement mutually acceptable to the Company or
its
successor and the Employee in lieu of this Agreement.
An
election by Employee to terminate his employment under the provisions of this
paragraph 9(c) shall not be deemed a voluntary termination of employment by
Employee for the purpose of interpreting the provisions of any of the Company's
employee benefit plans, programs or policies. Employee's right to terminate
his
employment pursuant to this paragraph 9(c) shall not be affected by his illness
or incapacity, whether physical or mental, unless the Company shall at the
time
be entitled to terminate his employment under paragraph 7 of this Agreement.
Employee's continued employment with the Company for any period of time less
than one hundred and eighty (180) days after a Change in Control shall not
be
considered a waiver of any right he may have to terminate his employment
pursuant to this paragraph 9(c). A termination by Employee under this paragraph
9(c) shall be deemed a termination by the Company of this Agreement without
Cause.
(d) After
a
Change in Control has occurred, in the event that this Agreement is terminated
by the Company or its successor without Cause or by the Employee pursuant to
Section 9(c), and if the Company or its successor and the Employee do not agree
to enter into a new employment agreement in lieu hereof, then Employee shall
be
entitled to be paid in a lump sum, within thirty days of such termination,
an
amount of cash (to be computed, at the expense of the Company or its successor,
by the independent certified public accountants utilized by the Company
immediately prior to the Change of Control (the "Accountants"), whose
computation shall be conclusive and bind-ing upon Employee and the Company
or
its successor) equal to 2.99 times Employ-ee's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"). Any such payment shall be in full satisfaction of all of the Company’s
or its successor’s obligations hereunder, and upon payment made pursuant to this
paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to
this Agreement shall terminate in full and Employee shall have no further rights
hereunder or recourse against the Company or its successor pursuant to this
Agreement; provided,
however,
nothing
in this paragraph 9(d) shall be interpreted to preclude the Employee receiving
his accrued salary and other compensation payable pursuant to paragraph 4
through the date of termination. Such lump sum payment is hereinafter referred
to as the "Termination Compensation."
It
is
intended that the "present value" of the payments and benefits to Employee,
whether under this Agree-ment or otherwise, which are includable in the
computation of "parachute payments" shall not, in the aggregate, exceed 2.99
times the "base amount" (the terms "present value", "parachute payments" and
"base amount" being determined in accordance with Section 280G of the Code).
Accordingly, if Employee receives payments or benefits from the Company prior
to
payment of the Termination Compensation which, when added to the Termination
Compensation, would, in the opinion of the Accountants, subject any of the
payments or benefits to Employee to the excise tax imposed by Section 4999
of
the Code, the Termination Compensation shall be reduced by the smallest amount
necessary, in the opinion of the Accountants, to avoid such tax. In addition,
the Company shall have no obligation to make any payment or provide any benefit
to Employee subsequent to payment of the Termination Compensation which, in
the
opinion of the Accountants, would subject any of the payments or benefits to
Employee to the excise tax imposed by Section 4999 of the Code. No reduction
in
Termination Compensation or release of the Company from any payment or benefit
obligation in reliance upon any aforesaid opinion of the Accountants shall
be
permitted unless the Company shall have provided to Employee a copy of any
such
opinion that specifically entitles Employee to rely thereon, no later than
the
date otherwise required for payment of the Termination Compensation or any
such
later payment or benefit.
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(e) "Change
in Control" as used in this Agree-ment shall mean the occurrence of any of
the
following:
(i) any
"person" or "group" (as such terms are used in Section 3(a)(9) and 13(d)(3)
of the Securities Exchange Act of 1934, as amended (the "Act")), except for
an
employee stock ownership trust (or any of the trustees thereof), becomes a
"beneficial owner" (as such term in used in Rule 13d-3 promulgated under
the Act), after the date hereof, directly or indirectly, of securities of the
Company representing 35% or more of the combined voting power of the Company's
then outstanding securities;
(ii) during
any twelve (12) month period during the Employment Period, individuals who
at
the beginning of such period constitute the entire Board of Directors cease
for
any reason to constitute at least a majority thereof, unless the election,
or
the nomination for election, by shareholders of the Company of each new director
was approved or ratified by a vote of at least a majority of the directors
then
still in office who were directors at the beginning of the Employment Period
or
who were new directors approved by such a vote;
(iii) the
consummation of the sale or disposition by the Company of all or substantially
all of the Company's assets; or
(iv) the
consummation of a merger or consolidation of the Company with any other company,
other than a merger or consolidation which would result in the combined voting
power of the Company's voting securities outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or the parent company of such
surviving entity) 50% or more of the combined voting power of the voting
securities of the Company or such surviving entity or the parent company of
such
surviving entity outstanding immediately after such merger or consolidation.
Notwithstanding the foregoing, any transaction involving a leveraged buyout
or
other acquisition of the Company which would otherwise constitute a Change
in
Control, in which Employee participates in the surviving or successor entity
(other than solely as an employee or consultant), shall not constitute a Change
in Control.
-7-
10. No
Impediments.
Employee warrants and represents that he is free to enter into this Agreement
and to perform the services contemplated thereby and that such actions will
not
constitute a breach of, or default under, any existing agreement.
11. No
Waiver.
The
failure of any of the parties hereto to enforce any provision hereof on any
occasion shall not be deemed to be a waiver of any preceding or succeeding
breach of such provision or of any other provision.
12. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
hereto with respect to the subject matter hereof and no amendment, modification
or waiver of any provision herein shall be effective unless in writing, executed
by the party charged therewith. The parties hereto further acknowledge and
agree
that the certain Employment Agreement dated as of June 15, 2004 between the
Parties hereto, is hereby terminated in full, shall be null and void and of
no
further force or effect, and that all of the parties' obligations thereunder
are
hereby extinguished in full.
13. Governing
Law.
This
Agreement shall be con-strued, interpreted and enforced in accordance with
and
shall be governed by the laws of the State of New York applicable to agreements
to be wholly performed therein, other than those which would defer to the
substantive laws of another jurisdiction.
14. Binding
Effect.
This
Agreement shall bind and inure to the benefit of the parties, their successors
and assigns.
15. Assignment
and Delegation of Duties.
This
Agreement may not be assigned by the parties hereto except that the Company
shall have the right to assign this Agreement to any successor in connection
with a sale or transfer of all or sub-stantially all of its assets, a merger
or
consolidation. This Agreement is in the nature of a personal services contract
and the duties imposed hereby are nondelegable.
16. Paragraph
Headings.
The
paragraph headings herein have been inserted for convenience of reference only
and shall in no way modify or restrict any of the terms or provi-sions
hereof.
17. Notices.
Any
notice under the provisions of this Agreement shall be in writing, shall be
sent
by one of the following means, directed to the address set forth on the first
page of this Agreement or to such other address as shall be designated hereunder
by notice to the other party, effective upon actual receipt and shall be deemed
conclusively to have been given: (i) on the first business day following the
day
timely deposited for overnight delivery with Federal Express (or other
equivalent national overnight courier service) or United States Express Mail,
with the cost of delivery prepaid or for the account of the sender; (ii) on
the
fifth business day following the day duly sent by certified or registered United
States mail, postage prepaid and return receipt requested; or (iii) when
otherwise actually received by the addressee on a business day (or on the next
business day if received after the close of normal business hours or on any
nonbusiness day).
18. Unenforceability;
Severability.
If any
provision of this Agreement is found to be void or unenforceable by a court
of
competent jurisdiction, the remaining provisions of this Agreement shall,
nevertheless, be binding upon the parties with the same force and effect as
though the unenforceable part has been severed and deleted.
-8-
19. Code
Section 409A.
The
Company and the Employee agree to work together in good faith to consider
amendments to this Agreement necessary or appropriate to avoid imposition of
any
additional tax or income recognition prior to actual payment to Employee under
Internal Revenue Code Section 409A and any temporary or final Treasury
Regulations and Internal Revenue Service guidance thereunder. Any provision
of
this Agreement not in compliance with Section 409A shall be void and the Company
reserves the discretion to revise the Agreement as necessary, without the
consent of the Employee, to comply with Code Section 409A. Further, and
notwithstanding anything to the contrary in this Agreement, any cash severance
payments due to Employee pursuant to this Agreement or otherwise will not be
paid during the six-month period following Employee’s termination (or
non-renewal) of employment unless the Company determines, in its good faith
judgment, that paying such amounts at the time or times indicated above would
not cause Employee to incur an additional tax under Code Section 409A. If the
payment of any amounts are delayed as a result of the previous sentence, any
cash severance payments due to Employee pursuant to this Agreement or otherwise
during the first six (6) months after Employee’s termination will accrue and
will become payable in a lump sum payment on the date six (6) months and one
(1)
day following the date of Employee’s termination. Thereafter, payments will
resume in accordance with the applicable schedule set forth in this
Agreement.
20. Counterparts;
Facsimile.
This
Agreement may be executed in one or more counterparts and delivered by
facsimile, each of which shall constitute an original, and which when taken
together, shall constitute one and the same agreement.
-9-
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the date first
above writ-ten.
EMPLOYEE:
/s/
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
COMPANY:
By:
/s/
Xxxx
Rhian
Name:
Xxxx
Rhian
Title:
President
and COO
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