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EXHIBIT 10.24
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 19th day of May, 1997 by and between
Xxxxxxxx X. Xxxxxx residing at 0000 Xxxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxx
00000 ("Employee"), and Chemed Corporation, a Delaware corporation (the
"Company").
WHEREAS, the Company has employed Employee and desires to
continue to employ Employee as a senior executive and Employee desires to work
for the Company or its subsidiaries in such capacity on the terms and conditions
hereinafter provided;
WHEREAS, Employee is a key senior executive of the Company
with major responsibilities for planning, directing, coordinating and
controlling overall corporate operations;
WHEREAS, in such capacity Employee will develop or have access
to all or substantially all of the business methods and confidential information
relating to the Company, including but not limited to, its financial performance
and results, its product formulae, its manufacturing organization and methods,
its product research and development policies and programs, its service
techniques, its purchasing organization and methods, its sales organization and
methods, its pricing of products, its market development and expansion plans,
its personnel policies and training and development programs, and its customer
and supplier relationships; and franchising programs and franchisee
relationships;
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT
Section 1.1 Position and Duties.
(a) The Company agrees to employ Employee and Employee agrees to work
for the Company as a senior executive. Employee shall have such duties and
authority as are normally associated with his office. Employee will also serve
in such other management capacities as may be mutually agreed upon from time to
time. While employed hereunder, Employee shall devote his full time, effort,
skill and attention to the affairs of the Company. During the term of his
employment hereunder, Employee shall not render any services to any other person
that might be in competition with the Company or any of its subsidiaries or
affiliates or in conflict with his position as a senior executive of the Company
or his duty of undivided loyalty to the Company.
Section 1.2 Term. Unless sooner terminated in accordance with the
provisions hereof, the term of employment shall commence on May 19, 1997 and
shall continue until May 19, 2000.
2. COMPENSATION
Section 2.1 Base Salary. While employed hereunder the Company shall
pay Employee a base salary of $250,000 per annum or such higher amount or
amounts as the Company may from time to time approve. The base salary shall be
due and payable at the same times and intervals at which salary payments are
made to other senior executives.
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Section 2.2 Incentive Compensation. Employee will be entitled to
participate in all incentive compensation and bonus plans as such have been
maintained by the Company for its senior executives generally. The Employee's
annual incentive compensation will be payable, with respect to each calendar
year, on or before February 10 in the following year.
Section 2.3 Employee Benefits. Employee shall be entitled to
participate in and receive rights and benefits under those "fringe" benefit
plans which the Company provides for its executives generally, which at the
present time include:
Deferred Compensation Plan
Cafeteria Plan
Flexible Spending Plan (Reimbursement Account)
Group Health Insurance
Group Term Life and AD&D Insurance
Stock Incentive Plans
Long-Term Disability Insurance
Voluntary Group Accident Insurance
Business Travel Accident Insurance
Tuition Reimbursement Program
Optional Term Life Insurance
Employee's participation in such plans will be in accordance with and subject to
the terms and provisions thereof.
Section 2.4 Pension. Employee will continue to participate in
Roto-Rooters's Retirement and Thrift Plan ("Retirement Plan") and in the Excess
Benefit Plan in accordance with and subject to their respective provisions.
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Section 2.5 Miscellaneous.
(a) Company will pay or reimburse Employee for his reasonable business
expenses in accordance with Company policies.
(b) Employee will be entitled to paid vacation in accordance with
current Company policy. Employee will be entitled to payment for unused vacation
time in accordance with Company policy.
(c) Subject to Section 1.1(a) of this Agreement, compliance with
applicable laws relating to interlocking directorships, the Company's policies
on conflicts of interest and improper payments and accounting records contained
in a statement entitled "Policies on Business Ethics" and to any other current
applicable Company policy, during the term of Employee's employment hereunder,
Employee will be permitted to accept election, and to serve as, a director of
other entities. Employee will be permitted to retain all fees and other benefits
resulting from his service as a director of any such entity.
(d) The Company shall promptly pay upon demand any reasonable legal
fees incurred by Employee in connection with any enforcement of his rights under
this Agreement.
3. TERMINATION.
Section 3.1 Termination of Employment. The employment of Employee
shall terminate prior to the expiration of the term specified in Section 1.2
upon the occurrence of any of the following prior to such time:
(a) The death of Employee;
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(b) The termination by the Company of Employee's employment for Cause
pursuant to Section 3.2.
The termination by the Company of Employee's employment hereunder for
any reason other than those specified in paragraphs (a) and (b) above shall
hereinafter be referred to as a termination "Without Cause". Any disability of
an employee shall not be grounds for termination.
Section 3.2 For Cause. The Company may, at any time by written notice
to the Employee, terminate his services hereunder for Cause. Such notice shall
specify the event or events and the actions or failure to act constituting
Cause. The term "Cause", as used herein, shall mean and be limited to the
occurrence of one or more of the following events:
(a) His conviction, by a court of competent jurisdiction, of a felony,
which through lapse of time or otherwise is not subject to appeal;
(b) His commission of an act of fraud upon, or an act evidencing
material dishonesty toward, the Company; or
(c) Any willful failure by him to observe or perform his material
agreements herein contained.
If the basis for discharge is pursuant to paragraph (c) above,
Employee shall have thirty (30) days from his receipt of the notice of
termination for Cause to cure the actions or failure to act specified in such
notice and, in the event of any such cure within such period, such conduct shall
not constitute Cause hereunder.
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Section 3.3 Consequences of Termination.
(a) If Employee's employment hereunder shall terminate pursuant to any
of the provisions of this Article 3, his base salary and incentive compensation
referred to in Section Section 2.1 and 2.2 shall cease to accrue forthwith.
(b) If the Company shall terminate Employee's employment hereunder
Without Cause, the Company shall pay Employee monthly severance payments at an
annual rate equal to 150% of the sum of (i) the Employee's then current base
salary plus (ii) the amount of the annual incentive bonus most recently paid or
approved to be paid to Employee in respect of the previous year, plus (iii) the
fair market value of all shares of Chemed Corporation capital stock and its
subsidiaries' common stock subject to stock awards granted to Employee under one
or more stock incentive plans of Chemed Corporation or of any of its
subsidiaries which have vested during the 12 months prior to the Employee's
termination, such fair market value to be determined as of the date of vesting
of any such shares. Such monthly severance payments shall be made for a period
equal to the balance of the term of employment provided in Section 1.2.
(c) In the event that Employee's employment hereunder shall terminate
pursuant to any of the provisions of this Article 3, the rights of Employee
under any incentive compensation plan referred to in Section 2.2, under the
executive or employee benefit plans or arrangements referred to in Section 2.3
and Section 2.4 or otherwise, shall be determined in accordance with the terms
and provisions of such plans, arrangements and options applicable to an employee
whose employment has terminated in the manner that occurred, except that
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a termination Without Cause shall be treated as a retirement under a retirement
plan of the Company for the purposes of the Company stock incentive plans.
4. OTHER COVENANTS OF EMPLOYEE.
Section 4.1 Employee shall have no right, title or interest in any
reports, studies, memoranda, correspondence, manuals, records, plans, or other
written, printed or otherwise recorded materials of any kind belonging to or in
the possession of the Company or its subsidiaries, or in any copies, pictures,
duplicates, facsimiles or other reproductions, recordings, abstracts or
summaries thereof and Employee will promptly surrender to the Company any such
materials (other than materials which have been published or otherwise have
lawfully been made available to the public generally) in his possession upon the
termination of his employment or any time prior thereto upon request of the
Company.
Section 4.2 Without the prior written consent of the Company, Employee
shall not at any time (whether during or after his employment with the Company)
use for his own benefit or purposes or for the benefit or purposes of any other
person, firm, partnership, association, corporation or business organization,
entity or enterprise, or disclose (except in the performance of his duties
hereunder) in any manner to any person, firm, partnership, association,
corporation or business organization, entity or enterprise,
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information, data, know-how or knowledge (including, but not limited to, that
relating to financial policies, product composition, manufacturing organization
and methods, research and development policies and programs, service techniques,
purchasing organization and methods, sales organization and methods, product
pricing, market development and expansion plans, personnel policies and training
and development programs, customer and supplier relationships) belonging to, or
relating to the affairs of, the Company or its subsidiaries.
Section 4.3 Employee shall promptly disclose to the Company (and to no
one else) all improvements, discoveries and inventions that may be of
significance to the Company or its subsidiaries made or conceived alone or in
conjunction with others (whether or not patentable, whether or not made or
conceived at the request of or upon the suggestion of the Company during or out
of his usual hours of work or in or about the premises of the Company or
elsewhere) while in the employ of the Company, or made or conceived within six
months after the termination of his employment by the Company, if resulting
from, suggested by or relating to such employment. All such improvements,
discoveries and inventions shall, to the extent that they are patentable, be the
sole and exclusive property of the Company and are hereby assigned to the
Company. At the request of the Company and at its cost and without liability to
Employee, Employee shall assist the Company, or any person or persons from time
to time designated by it, in obtaining the grant of patents in the United States
and/or in such other country or countries as may be designated by the Company
covering such improvements,
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discoveries and inventions and shall in connection therewith execute such
applications, statements or other documents, furnish such information and data
and take all such other action (including, but not limited to, the giving of
testimony) as the Company may from time to time request.
Section 4.4 The obligations of Employee set forth in this Article 4
are in addition to and not in limitation of any obligations which would
otherwise exist as a matter of law. The provisions of this Article 4 shall
survive the termination of Employee's employment hereunder.
5. CERTAIN REMEDIES
Section 5.1 Breach by the Company. In the event that the Company shall
fail, in any material respect, to observe and perform its obligations hereunder,
the Employee may give written notice to the Company specifying the nature of
such failure. If within thirty (30) days after its receipt of such notice the
Company shall not have remedied such failure, the Employee shall have the right
and option to treat such failure as termination of his employment by the Company
Without Cause, to cease rendering services hereunder and thereafter to receive
the severance benefits and have the other rights and obligations provided for in
Article 3 hereof in the case of a termination by the Company Without Cause. The
parties agree that a material breach by the Company for purposes of this Section
5.1 shall include, but not be limited to, a material reduction in Employee's
title, authority or responsibilities from those he was exercising on the date of
execution of this Agreement. The remedy provided for in this Section 5.1 shall
be in addition to and not in
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limitation of any other remedies which would otherwise exist as a matter of law.
Section 5.2 Breach by the Employee. Employee acknowledges and agrees
that the Company's remedy at law for any breach of any of Employee's obligations
under Section Section 1.1(a), 4.1, 4.2 and 4.3 would be inadequate, and agrees
and consents that temporary and permanent injunctive relief may be granted in
any proceeding that may be brought to enforce any provision of any such
sections, without the necessity of proof of actual damage.
6. GENERAL PROVISIONS
Section 6.1 Representations and Warranties. Employee represents and
warrants to the Company that he is free to enter into the agreement and that he
has no prior or other obligations or commitments of any kind to anyone that
would in any way hinder or interfere with his acceptance of, or the full,
uninhibited and faithful performance of, his employment hereunder or the
exercise of his best efforts as an employee of the Company.
Section 6.2 Understandings; Amendments. Except as otherwise provided
herein, this Agreement sets forth the entire agreement and understanding of the
parties concerning the subject matter hereof and supersedes all prior
agreements, arrangements and understandings between Employee and the Company
concerning such subject matter. No representation, promise, inducement or
statement of intention has been made by or on behalf of either party hereto that
is not set forth in this Agreement or the documents referred to herein. This
Agreement may not be amended or
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modified except by a written instrument specifically referring to this Agreement
executed by the parties hereto.
Section 6.3 Notices.
(a) Any notice or other communication required or permitted to be
given hereunder shall be in writing and may either be delivered personally to
the addressee or be mailed, registered mail, postage prepaid, as follows:
If to the Company:
Chemed Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President
with a copy to:
Secretary
Chemed Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Employee:
0000 Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(b) Either party may change the address to which any such notices or
communications are to be directed to it by giving written notice to the other
party in the manner provided in the preceding paragraph (a).
Section 6.4 Assignments; Binding Effect.
(a) Employee acknowledges that the services to be rendered by him are
unique and personal. Accordingly, Employee may not assign any of his rights or
delegate any of his duties or obligations under this Agreement. This Agreement
shall be binding
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upon, and to the extent herein permitted shall inure to the benefit of,
Employee's heirs, legatees and legal representatives.
(b) The Company may not assign this Agreement or its rights hereunder
except to a successor of all or substantially all of the business and assets of
the Company. This Agreement shall be binding upon, and shall inure to the
benefit of, the Company's successors and permitted assigns.
Section 6.5 Waivers. The failure of either party hereto at any time or
from time to time to require performance of any of the other party's obligations
under this agreement shall in no manner affect the right to enforce any
provision of this Agreement at a subsequent time, and the waiver of any rights
arising out of any breach shall not be construed as a waiver of any rights
arising out of any subsequent breach.
Section 6.6 Severance Plans. Amounts paid hereunder are in addition to
any amounts payable under the Company severance plans, without offset or
reduction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written hereinabove.
CHEMED CORPORATION
By: /s/ N. C. Dallob
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EMPLOYEE
/s/ Xxxxxxxx X. Xxxxxx
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