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EXHIBIT 10-J (ii)
TERMINATION BENEFITS AGREEMENT
This Termination Benefits Agreement ("Agreement") is made and
entered into as of February 8, 1996 by and between National Infusion Services,
Inc., an Indiana corporation (hereinafter referred to as the "Corporation") and
Xxxxxx X. Xxxxx, M.D., a resident of the State of Indiana (hereinafter referred
to as "Employee").
W I T N E S S E T H
WHEREAS, Employee is now serving as President and Chief
Executive Officer of the Corporation; and
WHEREAS, the Corporation believes that Employee has made
valuable contributions to the productivity and profitability of the
Corporation; and
WHEREAS, the Corporation desires to encourage Employee to
continue to make such contributions and not to seek or accept employment
elsewhere; and
WHEREAS, the Corporation, therefore, desires to assure
Employee of certain benefits in case of any termination or significant
redefinition of the terms of his employment with the Corporation subsequent to
any Change in Control of the Corporation;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained and the mutual benefits herein provided,
the Corporation and Employee hereby agree as follows:
1. The term of this Agreement shall be from the date
hereof through December 31, 1998; provided, however, that such term shall be
automatically extended for an additional year on December 31, 1996 and on
December 31 of each year thereafter unless either party hereto gives written
notice to the other party not to so extend prior to November 30 of the year for
which notice is given, in which case no further automatic extension shall occur
and the term of this Agreement shall end on December 31 three (3) years
subsequent to the date of the latest preceding automatic extension.
Notwithstanding the foregoing, if a Change in Control of the Corporation (as
defined in Section 2 below) shall occur prior to the expiration of the original
term or any extensions of the term of this Agreement, then the term of this
Agreement shall automatically become a term of three (3) years commencing on
the date of any such Change in Control.
2. As used in this Agreement, "Change in Control" of the
Corporation means:
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(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 as in effect from time to time) of twenty-five
percent (25%) or more of either (i) the then outstanding shares of
common stock of the Corporation or (ii) the combined voting power of
the then outstanding voting securities of the Corporation entitled to
vote generally in the election of directors; provided, however, that
the following acquisitions shall not constitute an acquisition of
control: (i) any acquisition directly from the Corporation (excluding
an acquisition by virtue of the exercise of a conversion privilege),
(ii) any acquisition by the Corporation, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Corporation or any corporation controlled by the Corporation, (iv)
any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (i), (ii) and (iii)
of subsection (C) of this Section 2 are satisfied and (v) any
acquisition by underwriters in a firm commitment underwritten public
offering of voting securities of the Corporation;
(B) Individuals who, as of the date hereof, constitute
the Board of Directors of the Corporation (the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board of
Directors of the Corporation (the "Board"); provided, however, that
any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Corporation'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 either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(C) Approval by the shareholders of the Corporation of a
reorganization, merger or
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consolidation, in each case, unless, following such reorganization,
merger or consolidation, (i) more than sixty percent (60%) of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
outstanding Corporation common stock and outstanding Corporation
voting securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the outstanding Corporation stock and outstanding
Corporation voting securities, as the case may be, (ii) no Person
(excluding the Corporation, any employee benefit plan or related trust
of the Corporation or such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially
owning, immediately prior to such reorganization, merger or
consolidation, directly or indirectly, twenty-five percent (25%) or
more of the outstanding Corporation common stock or outstanding voting
securities, as the case may be) beneficially owns, directly or
indirectly, twenty-five percent (25%) or more of, respectively, the
then outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation or the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors
and (iii) at least a majority of the members of the board of directors
of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization,
merger or consolidation; or
(D) Approval by the shareholders of the Corporation of
(i) a complete liquidation or dissolution of the Corporation or (ii)
the sale or other disposition of all or substantially all of the
assets of the Corporation, other than to a corporation with respect to
which following such sale or other disposition (a) more than sixty
percent (60%) of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then
outstanding voting securities of such
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corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the outstanding Corporation common
stock and outstanding Corporation voting securities immediately prior
to such sale or other disposition in substantially the same proportion
as their ownership, immediately prior to such sale or other
disposition, of the outstanding Corporation common stock and
outstanding Corporation voting securities, as the case may be, (b) no
Person (excluding the Corporation and any employee benefit plan or
related trust of the Corporation or such corporation and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, twenty-five percent (25%) or more
of the outstanding Corporation common stock or outstanding Corporation
voting securities, as the case may be) beneficially owns, directly or
indirectly, twenty-five percent (25%) or more of, respectively, the
then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors and (c) at least a majority of the members of the board of
directors of such corporation were members of the Incumbent Board at
the time of the execution of the initial agreement or action of the
Board providing for such sale or other disposition of assets of the
Corporation.
3. The Corporation shall provide Employee with the
benefits set forth in Section 6 of this Agreement upon any termination of
Employee's employment by the Corporation following a Change in Control for any
reason except the following:
(A) Termination by reason of Employee's death.
(B) Termination by reason of Employee's "disability".
For purposes hereof, "disability" shall be defined as Employee's
inability by reason of illness or other physical or mental disability
to perform the duties required by his employment for any consecutive
One Hundred Eighty (180) day period, provided that notice of any
termination by the Corporation because of Employee's "disability"
shall have been given to Employee prior to the resumption by him of
the performance of such duties.
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(C) Termination upon Employee reaching his normal
retirement date, which for purposes of this Agreement shall be
deemed to be the end of the month during which employee
reaches sixty-five (65) years of age.
(D) Termination for "cause". As used in this Agreement,
the term "cause" means fraud, dishonesty, theft of corporate assets,
or other gross misconduct by Employee. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated for cause unless
and until there shall have been delivered to him a copy of a
resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Corporation's Board at a
meeting called and held for the purpose (after reasonable notice to
him and an opportunity for him, together with his counsel, to be heard
before such Board), finding that, in the good faith opinion of such
Board, Employee was guilty of conduct constituting "cause" and
specifying the particulars thereof in detail.
4. The Corporation shall also provide Employee with the
benefits set forth in Section 6 of this Agreement upon any termination of
Employee's employment with the Corporation at Employee's option after a Change
in Control followed by the happening of any one of the following events:
(A) Without Employee's express written consent, the
assignment of Employee to any duties which, in Employee's reasonable
judgment, are materially inconsistent with his positions, duties,
responsibilities or status with the Corporation immediately prior to
the Change in Control or a substantial reduction of his duties or
responsibilities which, in Employee's reasonable opinion, does not
represent a promotion from his position, duties or responsibilities
immediately prior to the Change in Control.
(B) A reduction by the Corporation in Employee's salary
from the level of such salary immediately prior to the Change in
Control or the Corporation's failure to increase (within twelve (12)
months of Employee's last increase in base salary) Employee's base
salary after a Change in Control in an amount which at least equals,
on a percentage basis, the average percentage increase in base salary
for all executive and senior officers of the Corporation effected in
the preceding twelve (12) months.
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(C) The failure by the Corporation to continue in
effect any incentive, bonus or other compensation plan in
which Employee participates, including but not limited to the
Corporation's stock option plans, unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan), with which Employee has consented, has been made with
respect to such plan in connection with the Change in Control,
or the failure by the Corporation to continue Employee's
participation therein, or any action by the Corporation which
would directly or indirectly materially reduce Employee's
participation therein.
(D) The failure by the Corporation to continue to provide
Employee with benefits substantially similar to those enjoyed by
Employee or to which Employee was entitled under any of the
Corporation's principal pension, profit sharing, life insurance,
medical, dental, health and accident, or disability plans in which
Employee was participating at the time of a Change in Control, the
taking of any action by the Corporation which would directly or
indirectly materially reduce any of such benefits or deprive Employee
of any material fringe benefit enjoyed by Employee or to which
Employee was entitled at the time of the Change in Control, or the
failure by the Corporation to provide Employee with the number of paid
vacation and sick leave days to which Employee is entitled on the
basis of years of service or position with the Corporation in
accordance with the Corporation's normal vacation policy in effect on
the date hereof.
(E) The Corporation's requiring Employee to be based
anywhere other than the metropolitan area where the Corporation office
at which he was based immediately prior to the Change in Control was
located, except for required travel on the Corporation's business in
accordance with the Corporation's past management practices.
(F) Any failure of the Corporation to obtain the
assumption of the obligation to perform this Agreement by any
successor as contemplated in Section 10 hereof.
(G) Any failure by the Corporation or its shareholders,
as the case may be, to reappoint or reelect Employee to a corporate
office held by him immediately prior to the Change in Control or his
removal from any such office including any seat held at such time on
the Corporation's Board of Directors.
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(H) The effectiveness of a resignation, tendered at any
time, either before or after a Change in Control and regardless of
whether formally characterized as voluntary or otherwise, by Employee
of any corporate office held by him immediately prior to the Change in
Control or of any seat held at such time on the Corporation's Board of
Directors, at the request of the Corporation or at the request of the
person obtaining control of the Corporation in such Change in Control.
(I) Any purported termination of the Employee's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 5 hereof (and, if applicable,
Section 3(D) hereof); and for purposes of this Agreement, no such
purported termination shall be effective.
(J) Any request by the Corporation that Employee
participate in an unlawful act or take any action constituting a
breach of Employee's professional standard of conduct.
(K) Any breach by the Corporation of any of the
provisions of this Agreement or any failure by the Corporation to
carry out any of its obligations hereunder.
Notwithstanding anything in this Section 4 to the contrary, Employee's right to
terminate Employee's employment pursuant to this Section 4 shall not be
affected by Employee's incapacity due to physical or mental illness.
5. Any termination of Employee's employment with the
Corporation as contemplated by Section 3 hereof (except subsection 3(A)) or by
Employee as contemplated by Section 4 hereof shall be communicated by written
"Notice of Termination" to the other party hereto. Any "Notice of Termination"
given by Employee pursuant to Section 4 or given by the Corporation in
connection with a termination as to which the Corporation believes it is not
obligated to provide Employee with benefits set forth in Section 6 hereof shall
indicate the specific provisions of this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for such termination.
6. Subject to the conditions and exceptions set forth in
Section 3 and Section 4 hereof, the following benefits, less any amounts
required to be withheld therefrom under any applicable federal, state or local
income tax, other tax, or social security laws or similar statutes, shall be
paid to
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Employee upon any termination of his employment with the Corporation
subsequent to a Change in Control:
(A) Within thirty (30) days following such a termination,
Employee shall be paid, at his then-effective salary, for services
performed through the date of his termination. In addition, any
earned but unpaid amount of any bonus or incentive payment shall be
paid to Employee within thirty (30) days following the termination of
his employment.
(B) Within thirty (30) days following such a termination,
Employee shall be paid a lump sum payment of an amount equal to two
and nine-tenths (2.9) times Employee's "Base Amount." For purposes
hereof, Base Amount is defined as Employee's average includable
compensation paid by the Corporation for the five (5) most recent
taxable years ending before the date on which the Change in Control
occurs. The Base Amount shall be determined by adding the Employee's
total includable compensation paid by the Corporation for the five (5)
most recent taxable years and dividing such total by five (5).
Notwithstanding the foregoing, should a Change in Control occur prior
to December 31, 1996, the Employee's Base Amount shall be one-fifth
(1/5) of the Employee's includable compensation paid by the
Corporation during the applicable portion of calendar year 1996. The
definition, interpretation and calculation of the dollar amount of
Base Amount shall be in a manner consistent with and as required by
the provisions of Section 280G of the Internal Revenue Code of 1986,
as amended ("Code"), and the regulations and rulings of the Internal
Revenue Service promulgated thereunder, without regard, however, to
the definition therein of "base period".
(C) (i) In the event that any payment or benefit
(within the meaning of Section 280G(b)(2) of the Code) paid or payable
to the Employee or for his benefit pursuant to the terms of this
Agreement or otherwise in connection with, or arising out of, his
employment with the Corporation or a change in ownership or effective
control of the Corporation or of a substantial portion of its assets
(a "Payment" or "Payments"), would be subject to the excise tax
imposed by Section 4999 of the Code or any interest, penalties,
additional tax or similar items are incurred by the Employee with
respect to such excise tax (such excise tax, together with any such
interest, penalties, additional tax or similar items are hereinafter
collectively referred to as the "Excise Tax"), then the Employee will
be entitled to
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receive an additional payment (a "Gross-Up Payment") in an amount such
that after payment by the Employee of all taxes (including any
interest, penalties, additional tax or similar items imposed with
respect thereto and the Excise Tax) including any Excise Tax imposed
upon the Gross-Up Payment, the Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(ii) An initial determination as to whether a Gross-Up
Payment is required pursuant to this Agreement and the amount of such
Gross-Up Payment shall be made at the Corporation's expense by an
accounting firm selected by the Corporation and reasonably acceptable
to the Employee which is designated as one of the five largest
accounting firms in the United States (the "Accounting Firm"). The
Accounting Firm shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation to
the Corporation and the Employee within ten days of the Termination
Date if applicable, or such other time as requested by the Corporation
or by the Employee and if the Accounting Firm determines that no
Excise Tax is payable by the Employee with respect to a Payment or
Payments, it shall furnish the Employee with an opinion reasonably
acceptable to the Employee that no Excise Tax will be imposed with
respect to any such Payment or Payments. Within ten days of the
delivery of the Determination to the Employee, the Employee shall have
the right to dispute the Determination (the "Dispute"). The Gross-Up
Payment, if any, as determined pursuant to this subsection 6(c)(ii)
shall be paid by the Corporation to the Employee within five days of
the receipt of the Accounting Firm's Determination. The existence of
the Dispute shall not in any way affect the Employee's right to
receive the Gross-Up Payment in accordance with the Determination. If
there is no Dispute, the Determination shall be binding, final and
conclusive upon the Corporation and the Employee subject to the
application of subsection 6(c)(iii) below.
(iii) As a result of the uncertainty in the application
of Sections 4999 and 280G of the Code, it is possible that a Gross-Up
Payment (or a portion thereof) will be paid which should not have been
paid (an "Excess Payment") or a Gross-Up Payment (or a portion
thereof) which should have been paid will not have been paid (an
"Underpayment"). An Underpayment shall be deemed to have occurred (a)
upon notice (formal or informal) to the Employee from any
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governmental taxing authority that the Employee's tax liability
(whether in respect of the Employee's current taxable year or in
respect of any prior taxable year) may be increased by reason of the
imposition of the Excise Tax on a Payment or Payments with respect to
which the Corporation has failed to make a sufficient Gross-Up
Payment, (b) upon a determination by a court, (c) by reason of
determination by the Corporation (which shall include the position
taken by the Corporation, together with its consolidated group, on its
federal income tax return) or (d) upon the resolution of the Dispute
to the Employee's satisfaction. If an Underpayment occurs, the
Employee shall promptly notify the Corporation and the Corporation
shall promptly, but in any event, at least five days prior to the date
on which the applicable government taxing authority has requested
payment, pay to the Employee an additional Gross-Up Payment equal to
the amount of the Underpayment plus any interest, penalties,
additional taxes or similar items imposed on the Underpayment. An
Excess Payment shall be deemed to have occurred upon a "Final
Determination" (as hereinafter defined) that the Excise Tax shall not
be imposed upon a Payment or Payments (or portion thereof) with
respect to which the Employee had previously received a Gross-Up
Payment. A "Final Determination" shall be deemed to have occurred
when the Employee has received from the applicable government taxing
authority a refund of taxes or other reduction in the Employee's tax
liability by reason of the Excise Payment and upon either (x) the date
a determination is made by, or an agreement is entered into with, the
applicable governmental taxing authority which finally and
conclusively binds the Employee and such taxing authority, or in the
event that a claim is brought before a court of competent
jurisdiction, the date upon which a final determination has been made
by such court and either all appeals have been taken and finally
resolved or the time for all appeals has expired or (y) the statute of
limitations with respect to the Employee's applicable tax return has
expired. If an Excess Payment is determined to have been made, the
amount of the Excess Payment shall be treated as a loan by the
Corporation to the Employee and the Employee shall pay to the
Corporation on demand (but not less than 10 days after the Final
Determination of such Excess Payment and written notice has been
delivered to the Employee) the amount of the Excess Payment plus
interest at an annual rate equal to the Applicable Federal Rate
provided for in Section 1274(d) of the Code from the date the Gross-Up
Payment (to which the
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Excess Payment relates) was paid to the Employee until the date
of repayment to the Corporation.
(iv) Notwithstanding anything contained in this
Agreement to the contrary, in the event that, according to the
Determination, an Excise Tax will be imposed on any Payment or
Payments, the Corporation shall pay to the applicable government
taxing authorities as Excise Tax withholding, the amount of the Excise
Tax that the Corporation has actually withheld from the Payment or
Payments.
(D) Employee acknowledges and agrees that payment in
accordance with subsections 6(A), 6(B) and 6(C) shall be deemed to
constitute a full settlement and discharge of any and all obligations
of the Corporation to Employee under this Agreement. Nothing in this
Agreement shall be construed as affecting the Employee's rights to
compensation or benefits (including without limitation severance
compensation or benefits) under any other agreements between the
Corporation and the Employee or under any insurance, pension,
supplemental pension, thrift, employee stock ownership, or stock
option plans sponsored or made available by the Corporation.
7. The Corporation is aware that upon the occurrence of
a Change in Control the Board of Directors or a shareholder of the Corporation
may then cause or attempt to cause the Corporation to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the
Corporation to institute, or may institute, litigation seeking to have this
Agreement declared unenforceable, or may take or attempt to take other action
to deny Employee the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It is the
intent of the Corporation that Employee not be required to incur the expenses
associated with the enforcement of his rights under this Agreement by
litigation or other legal action, nor be bound to negotiate any settlement of
his rights hereunder, because the cost and expense of such legal action or
settlement would substantially detract from the benefits intended to be
extended to Employee hereunder. Accordingly, if following a Change in Control
it should appear to Employee that the Corporation has failed to comply with any
of its obligations under this Agreement or in the event that the Corporation or
any other person takes any action to declare this Agreement void or
unenforceable, or institutes any litigation or other legal action designed to
deny, diminish or to recover from Employee the benefits entitled to be provided
to the Employee hereunder, and that Employee has complied with all of his
obligations under this Agreement, the Corporation irrevocably
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authorizes Employee from time to time to retain counsel of his choice,
at the expense of the Corporation as provided in this Section 7, to
represent Employee in connection with the initiation or defense of any
litigation or other legal action, whether such action is by or against
the Corporation or any director, officer, shareholder, or other person
affiliated with the Corporation, in any jurisdiction. Notwithstanding
any existing or prior attorney-client relationship between the
Corporation and such counsel, the Corporation irrevocably consents to
Employee entering into an attorney-client relationship with such
counsel, and in that connection the Corporation and Employee agree
that a confidential relationship shall exist between Employee and such
counsel. The reasonable fees and expenses of counsel selected from
time to time by Employee as hereinabove provided shall be paid or
reimbursed to Employee by the Corporation on a regular, periodic basis
upon presentation by Employee of a statement or statements prepared by
such counsel in accordance with its customary practices, up to a
maximum aggregate amount of One Hundred Thousand Dollars ($100,000).
Any legal expenses incurred by the Corporation by reason of any
dispute between the parties as to enforceability of or the terms
contained in this Agreement as provided by this Section 7,
notwithstanding the outcome of any such dispute, shall be the sole
responsibility of the Corporation, and the Corporation shall not take
any action to seek reimbursement from Employee for such expenses.
Notwithstanding any limitation contained in this Section 7 to the
contrary, Employee shall be entitled to payment or reimbursement of
legal expenses in excess of One Hundred Thousand Dollars ($100,000) if
the expenses were incurred as a result of a dispute under this
Agreement in which Employee obtains a final judgment in his favor from
a court of competent jurisdiction or his claim is settled by the
Corporation prior to the rendering of a judgment by such a court.
8. Employee is not required to mitigate the amount of
benefit payments to be made by the Corporation pursuant to this Agreement by
seeking other employment or otherwise, nor shall the amount of any benefit
payments provided for in this Agreement be reduced by any compensation earned
by Employee as a result of employment by another employer or which might have
been earned by Employee had Employee sought such employment, after the date of
termination of his employment with the Corporation or otherwise.
9. In order to induce the Corporation to enter into this
Agreement, Employee hereby agrees as follows:
(A) He will keep confidential and not improperly divulge
for the benefit of any other party any of the Corporation's
confidential information and business secrets including, but not
limited to, confidential information and business secrets relating to
such
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matters as the Corporation's finances, operations and customer lists.
All of the Corporation's confidential information and business secrets
shall be the sole and exclusive property of the Corporation.
(B) For a period of two years after Employee's employment
with the Corporation ceases, Employee shall not either on his own
account or for any other person, firm or company solicit or endeavor
to cause any employee of the Corporation to leave his employment or to
induce or attempt to induce any such employee to breach any employment
agreement with the Corporation.
In the event of a breach or threatened breach by Employee of the provisions of
this Section 9, the Corporation shall be entitled to an injunction restraining
Employee from committing or continuing such breach. Nothing herein contained
shall be construed as prohibiting the Corporation from pursuing any other
remedies available to it for such breach or threatened breach including the
recovery of damages from Employee. The covenants of this Section 9 shall run
not only in favor of the Corporation and its successors and assigns, but also
in favor of its subsidiaries and their respective successors and assigns and
shall survive the termination of this Agreement.
10. The Corporation shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation, by
agreement in form and substance satisfactory to Employee, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such succession had
taken place. Failure of the Corporation to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to compensation from the Corporation in the same amount
and on the same terms as Employee would be entitled hereunder if he were to
terminate his employment pursuant to Section 4 hereof, except that for purposes
of implementing the foregoing, the date on which succession becomes effective
shall be deemed the date of termination of Employee's employment with the
Corporation. As used in this Agreement, "Corporation" shall mean corporation
as hereinbefore defined and any successor to the business or assets of it as
aforesaid which executes and delivers the agreement provided for in this
Section 10 or which otherwise becomes bound by all of the terms and provisions
of this Agreement by operation of law.
11. Should Employee die while any amounts are payable to
him hereunder, this Agreement shall inure to the benefit of and be enforceable
by Employee's executors, administrators,
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heirs, distributees, devisees and legatees and all amounts payable hereunder
shall be paid in accordance with the terms of this Agreement to Employee's
devisee, legatee or other designee or if there be no such designee, to his
estate.
12. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee:
Xxxxxx X. Xxxxx
0000 Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
If to the Corporation:
National Infusion Services, Inc.
00000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
or to such other address as any party may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. The validity, interpretation, and performance of this
Agreement shall be governed by the laws of the State of Indiana. The parties
agree that all legal disputes regarding this Agreement will be resolved in
Indianapolis, Indiana, and irrevocably consent to service of process in such
City for such purpose.
14. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Employee and the Corporation. No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or any prior or subsequent time. No agreements or
representation, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by any party which are not set forth
expressly in this Agreement.
15. The invalidity or unenforceability of any provisions
of this Agreement shall not affect the validity or
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enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
16. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same Agreement.
17. This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other, assign or transfer
this Agreement or any rights or obligations hereunder, except as provided in
Section 10 and Section 11 above. Without limiting the foregoing, Employee's
right to receive payments hereunder shall not be assignable or transferable,
whether by pledge, creation of a security interest or otherwise, other than a
transfer by his Will or by the laws of descent and distribution as set forth in
Section 11 hereof, and in the event of any attempted assignment or transfer
contrary to this Section 17, the Corporation shall have no liability to pay any
amount so attempted to be assigned or transferred.
Any benefits payable under this Agreement shall be paid solely
from the general assets of the Corporation. Neither Employee nor Employee's
beneficiary shall have interest in any specific assets of the Corporation under
the terms of this Agreement. This Agreement shall not be considered to create
an escrow account, trust fund or other funding arrangement of any kind or a
fiduciary relationship between Employee and the Corporation.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the day and year first above set forth.
NATIONAL INFUSION SERVICES, INC.
("Corporation")
By:/s/ Xxxxxxx X. XxXxxxxxx
------------------------
Xxxxxxx X. XxXxxxxxx
Executive Vice President
/s/ Xxxxxx X. Xxxxx, M.D.
----------------------------------
Xxxxxx X. Xxxxx, M.D. ("Employee")
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