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EXHIBIT 10.77
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of February 18,
1998, made by and between Selfcare Consumer Products, Inc., a Delaware
corporation (the "Company"), Selfcare, Inc., a Delaware corporation and the
parent corporation of the Company ("Selfcare"), and Xxxxxx Xxxxxxx, an
individual residing at 0 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxx, Xxxxxx (the "Employee"),
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to employ Employee as one of its executive
officers for the period and upon and subject to the terms herein provided;
WHEREAS, the Company desires to be assured that Employee will not
compete with the Company for the period and within the geographical areas
hereinafter specified; and
WHEREAS, Employee is willing to agree to be employed by the Company for
the period and upon and subject to the terms herein provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the parties hereto covenant and agree as
follows:
SECTION 1. Term of Employment; Compensation. The Company agrees to
employ Employee from the date hereof for three (3) years thereafter. The Company
will pay Employee for his services during the term of the Employee's employment
hereunder at an annual rate of One Hundred and Fifty Thousand U.S. Dollars
($150,000), payable in arrears, in equal installments, in accordance with
standard Company practice, but in any event not less often than monthly, subject
only to such payroll and withholding deductions as are required by law. Such
annual compensation shall be subject to an annual review and may be increased as
mutually agreed upon by the Company and the Employee. Employee shall also be
eligible for any bonuses and other cash and non-cash compensation customarily
awarded by the Company or Selfcare to senior executives of the Company or
Selfcare.
SECTION 2. Office and Duties; Location. Employee shall have the usual
duties of managerial personnel, shall have responsibility for participating in
the management and direction of the Company's business and operations and shall
perform such specific other tasks, which are appropriate for a senior executive
of Selfcare, as may from time to time be assigned to the Employee and, in
particular, Employee shall, as President of the Company's wholly-owned
subsidiary, Can-Am Care Corporation ("Can-Am"), be responsible for the
management of Can-Am and be responsible for the implementation of its business
plan and the roll-out of its products, subject to the direction of the Board of
Directors and Chief Executive Officer of Selfcare. Employee shall devote
substantially all
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of his business time, labor, skill, undivided attention and best ability to the
performance of his duties hereunder in a manner which will faithfully and
diligently further the business and interests of the Company, except that
Employee may spend up to five (5) hours per week performing services for AMG
Medical Inc. ("AMG") for so long as AMG is a party to that certain Management
Services Agreement dated as of the date hereof between AMG and Can-Am. Except as
expressly provided herein, during the term of his employment, Employee shall not
directly or indirectly pursue any other business activity, without the Company's
prior written consent.
The Company shall not require Employee to relocate outside the greater
Montreal area. Employee agrees not to move to any location outside of North
America that would materially adversely affect the performance of his
obligations under this Agreement. Employee agrees that he will travel to the
extent that is reasonably necessary in the conduct of the Company's business;
provided, however, that such travel is consistent with past practices at Can-Am.
SECTION 3. Expenses. Employee shall be entitled to reimbursement for
expenses incurred by him in connection with the performance of his duties
hereunder upon receipt of vouchers therefor in accordance with such procedures
as the Company has heretofore or may hereafter establish.
SECTION 4. Vacation During Employment. Employee shall be entitled to
such reasonable vacations as may be allowed by the Company for senior executives
of Selfcare or the Company, but in any event not less than four (4) weeks during
each twelve (12) month period.
SECTION 5. Additional Benefits. Nothing herein contained shall preclude
Employee, to the extent he is otherwise eligible, from participation in all
group insurance programs, stock option plans, or other fringe benefit plans
which Selfcare or the Company makes available or may hereafter make available
generally to its senior executives, in its sole and absolute discretion, but
neither Selfcare nor the Company shall be required to establish or maintain any
such program or plan except, that, Selfcare or the Company shall provide
disability insurance coverage during the term of this Agreement.
SECTION 6. Termination of Employment.
(a) Notwithstanding any other provision of this Agreement, Employee's
employment may be terminated:
(i) By the Company without cause upon not less than ninety
(90) days' written notice in which event the Company shall pay to Employee an
amount equal to fifty per cent (50%) of the base salary required to be paid
under this Agreement, for the remainder of the term of this Agreement, which
payments will be made in the same periodic installments as were Employees salary
payments during Employee's employment.
(ii) By the Company for "Cause" (as herein defined) in which
event the Company's obligation to pay future compensation hereunder shall cease
forthwith, except for any obligation of
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the Company under any compensation or benefit plan in which Employee is then a
vested beneficiary. "Cause" means:
(A) Employee's material failure, refusal or
inability to perform, neglect of or carrying out in an irresponsible way his
duties hereunder, or breach of any one or more of the material provisions of
this Agreement, which shall have continued for a period of thirty (30) days (or
such longer period as is reasonably required to cure such breach with diligent
and good faith effort) after written notice to Employee from the Chairman of
Selfcare or other representative of the Board of Directors of Selfcare
specifying such breach or failure and which shall not have resulted from a
breach of any material provision of this Agreement by Selfcare or the Company;
(B) inability of Employee to discharge his duties
hereunder for one or more periods totaling six (6) months during any consecutive
twelve (12) month period due to illness, accident or other disability (mental or
physical); or
(C) Employee's theft or embezzlement from the
Company or commission of, plea of nolo contendere to, or conviction of any crime
involving moral turpitude or any other illegal act that materially adversely
reflects upon the business, affairs or reputation of the Company or on
Employee's ability to perform his duties hereunder.
(iii) By the Employee for any reason upon ninety (90) days'
written notice, in which event the Company's obligation to pay future
compensation hereunder shall cease forthwith, except for any obligation of
Selfcare or the Company under any compensation or benefit plan in which Employee
is then a vested beneficiary; provided, however, that if such termination by the
Employee is the result of a material breach by Selfcare or the Company of the
terms hereof which continues for ten (10) days (or such longer period as is
reasonably required to cure such breach with diligent and good faith effort)
after the Company's receipt of written notice thereof, then the Company shall
pay to Employee an amount equal to fifty per cent (50%) of the base salary
required to be paid under this Agreement, for the remainder of the initial term
of this Agreement, which payments will be made in the same periodic installments
as were Employees salary payments during Employee's employment.
(b) In the event of Employee's death during the term of his employment,
the Company's obligation to pay further compensation hereunder shall cease
forthwith, except that Employee's legal representative shall be entitled to
receive his fixed compensation for the period up to the last day of the month in
which such death shall have occurred.
(c) In the event that Employee's employment is terminated pursuant to
Section 6(a)(i) or 6(a)(iii), Selfcare or the Company shall continue to provide,
beyond such period as is required by applicable law, at Employee's expense, any
health, medical and/or dental insurance coverage provided for such Employee
during his employment for as long as the Employee desires, provided such
coverage is permitted by the Company's insurance carrier.
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SECTION 7. Disclosure and Assignment of Intellectual Property. Employee
shall promptly disclose to the Company and any successor or assign of the
Company, and grant to Selfcare or the Company, and their successors and assigns
(without any separate remuneration or compensation other than that received by
him from time to time in the course of his employment) his entire right, title
and interest throughout the world in and to all research, information,
inventions, designs, procedures, developments, discoveries, improvements,
patents and applications therefor, trademarks and applications therefor,
copyrights and applications therefor, trade secrets, drawings, plans, systems,
methods, specifications, and all other manufacturing, engineering, technical,
research and development data and know-how made, conceived, developed and/or
acquired by him solely or jointly with others during the period of his
employment with the Company or within one year thereafter, which relate to the
manufacture, production or processing of any products developed or sold by
Selfcare or the Company (herein sometimes "Intellectual Property") during the
term of this Agreement or which are within the scope of or usable in connection
with the business of Selfcare or the Company as it may, from time to time,
hereafter be conducted or proposed to be conducted. (It is understood and agreed
that Employee has heretofore disclosed to the Company, and assigned to it, all
Intellectual Property now known to him over which he has any control.) Employee
agrees to execute all appropriate patent applications securing all United States
and foreign patents on all Intellectual Property, and to do, execute and deliver
any and all acts and instruments that may be necessary or proper to vest all
Intellectual Property in Selfcare or the Company, or their nominee or designee,
and to enable Selfcare or the Company, or their nominee or designee, to obtain
all such patents; and Employee agrees to render to Selfcare or the Company, or
their nominee or designee, all such assistance as it may require in the
preparation and prosecution of all such patent applications and applications for
the re-issue of such patents, and in the prosecution or defense of all
interferences which may be declared involving any of said patent applications or
patents, but the expense of all such assignments and patent applications, or all
other proceedings referred to herein above, shall be borne by the Company.
Employee shall be entitled to fair and reasonable compensation for any such
assistance requested by the Company or its nominee or designee and furnished by
him after the termination of his employment.
SECTION 8.
(a) Confidentiality. Employee shall not (other than in
connection with his employment with the Company, Selfcare or any of its
subsidiaries), either during the period of his employment with the Company or
thereafter, use or disclose to any competitor or other third party any
Confidential Information (as herein defined). Employee acknowledges that the
continued success of Selfcare and the Company is largely dependent upon
maintaining the confidentiality of such information and preventing its
disclosure to competitors and other third parties. "Confidential Information"
means information pertaining to research and development of new product designs,
sales, distribution and marketing information, trade secrets, any Intellectual
Property or any of the other types of information referred to in Section 8, and
customer data of Selfcare or the Company, but shall not include any information
relating to, or obtained in the ordinary course of his past or future dealings
with AMG Medical, Inc. "Customer data" means any information pertaining to a
customer, distributor, supplier or other person or entity contracted to utilize
Selfcare's or the
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Company's services or purchase or license their products, including, but not
limited to, preferences, pricing information, service needs, and similar insider
knowledge of such parties' requirements obtained by Selfcare or the Company or
obtained by Employee. Employee agrees that for as long as Employee is employed
by the Company and for a period of two (2) years thereafter, Employee will not
(except to the extent required by the regular performance of his duties)
disclose to any unauthorized person or use for his own account, anywhere within
the Restricted Territory (as herein defined) any Confidential Information
without the prior written consent of the Company, unless and to the extent the
aforementioned matters become known to or available for use by the public
otherwise than as a result of Employee's acts or omissions to act. Employee
further agrees that upon termination of this Agreement he will not withhold or
retain any records, papers, letters or other data and information with respect
to Selfcare's or the Company's business without the prior written consent of the
Company's Board of Directors. For purposes of this agreement, "Restricted
Territory" means the entire world.
(b) Non-competition. As long as Employee is employed by the
Company and for a period of two (2) years thereafter, Employee agrees that,
except with the prior written consent of the Company's Board of Directors, he
will not directly or indirectly solicit, divert, attempt to take away or
interfere with any customer, client or distributor of Selfcare or the Company,
nor will he or any member of his immediate family own, manage, operate, control,
be employed by, participate in or otherwise engage in, or permit his name to be
used by or in connection with a Restricted Business (as herein defined) in a
Restricted Territory, whether such activity shall be for profit or not. The
parties agree that the Employee's ownership of no more than five percent of the
outstanding voting stock of a publicly traded corporation shall not constitute a
violation of this provision. For purposes of this Agreement, "Restricted
Business" shall mean any business which provides the same types of products and
services that Selfcare or the Company provides as of the date hereof; provided,
however, that "Restricted Business" shall not include the sale, marketing or
distribution of durable medical equipment in any area, including the Restricted
Territory.
(c) Non-solicitation. As long as Employee is employed by the
Company and for a period of two (2) years thereafter, Employee agrees that,
except with the prior written consent of the Company's Board of Directors, he
will not solicit, induce, attempt to hire, or hire any employee of Selfcare or
the Company (or any other person who may have been employed by the Company
during the six (6) months immediately preceding such solicitation), or assist in
such hiring by any other person or business entity or encourage any such
employee to terminate his employment with Selfcare or the Company.
(d) Construction. Employee and the Company are of the belief
that the period of time, the area and the scope of the prohibited activity
herein specified are reasonable, in view of the nature of the business in which
Selfcare and the Company are engaged and propose to engage, the state of their
product development and Employee's knowledge of this business. However, if such
period, such area or such scope of prohibited activity should be adjudged
unreasonable in any judicial proceeding, then the period of time shall be
reduced by such number of months, such area shall be reduced by elimination of
such portion of such area or such scope of prohibited activity shall be
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reduced, or all, as are deemed unreasonable, so that this covenant may be
enforced in such area, during such period of time and within the scope of
activity as is adjudged to be reasonable.
SECTION 9. No Conflicts. Employee represents and warrants to the
Company that he is not now under any obligations to any person, firm or
corporation, and has no other interest which is inconsistent or in conflict with
this Agreement, or which would prevent, limit or impair, in any way, the
performance by him of any of the covenants or his duties in his said employment.
SECTION 10. Equitable Relief. Employee recognizes and agrees that
Selfcare's and the Company's remedy at law for any breach of the provisions of
Section 7 or 8 hereof would be inadequate, and he agrees that for breach of such
provisions, Selfcare and the Company shall, in addition to such other remedies
as may be available to them at law or in equity or as provided in this
Agreement, be entitled to injunctive relief and to enforce their rights by an
action for specific performance to the extent permitted by law. Should Employee
engage in any activities prohibited by this Agreement, he agrees to pay over to
Selfcare or the Company all compensation, remunerations or moneys or property of
any sort received in connection with such activities; such payment shall not
impair any rights or remedies of Selfcare or the Company or obligations or
liabilities of Employee which such parties may have under this Agreement or
applicable law.
SECTION 11. Miscellaneous.
(a) Entire Agreement, etc. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supercedes all other prior or contemporaneous agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof.
(b) Amendments and Supplements. This Agreement may not be
amended, supplemented or discharged, and no provision hereof may be modified or
waived, except by an instrument in writing signed by both parties hereto.
(c) No Waiver. The failure of any party hereto to enforce at
any time any of the provisions of this Agreement shall in no way be construed to
be a waiver of any such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of such party thereafter to enforce
each and every such provision. No waiver of any breach of or non-compliance with
this Agreement shall be held to be a waiver of any other or subsequent breach or
non-compliance. The rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have at law
or in equity.
(d) Assignability. In the event that the Company shall be
merged with, or consolidated into, any other corporation, or in the event that
it shall sell and transfer substantially all of its assets to another
corporation, the terms of this Agreement shall inure to the benefit of, and be
assumed by, the corporation resulting from such merger or consolidation, or to
which the Company's assets shall be sold and transferred. This Agreement shall
not be assignable by
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Employee, but it shall be binding upon, and to the extent provided in Section 6
shall inure to the benefit of, his heirs, executors, administrators and legal
representatives.
(e) Severability. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable
as applied to any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions or in all cases, because of the conflicting of any provision
with any constitution or statute or rule of public policy or for any other
reason, such circumstance shall not have the effect of rendering the provision
or provisions in question invalid, inoperative or unenforceable in any other
jurisdiction or in any other case or circumstance or of rendering any other
provision or provisions herein contained invalid, inoperative or unenforceable
to the extent that such other provisions are not themselves actually in conflict
with such constitution, statute or rule of public policy, but this Agreement
shall be reformed and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been contained herein
and such provision reformed so that it would be valid, operative and enforceable
to the maximum extent permitted in such jurisdiction or in such case.
(f) Survival. Employee agrees that his obligations under
Sections 7 and 8 of this Agreement shall be binding upon him irrespective of the
duration of his employment by the Company, the reasons for any cessation of his
employment by the Company, or the amount of his compensation and shall survive
the termination of this Agreement (whether such termination is by the Company,
by Employee, upon expiration of this Agreement or otherwise).
(g) Notices. All notices, consents, approvals, directions and
instructions required or permitted under this Agreement shall be effective when
received and shall be given in writing and delivered either by hand or by
registered or certified mail, postage prepaid, or by telecopier, and addressed
as follows:
If to Employee:
Xxxxxx Xxxxxxx
0 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxx, Xxxxxx
X0X 0X0
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
0
0
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company or Selfcare:
Selfcare, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx, Chairman and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
(h) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law governing
conflict of law questions) of the State of New York except to the extent the
laws of any other jurisdiction are mandatorily applicable.
(i) Construction of Agreement. A reference to a Section shall
mean a Section in this Agreement unless otherwise expressly stated. The titles
and headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a whole.
The words "include," "includes" and "including" when used herein shall be deemed
in each case to be followed by the words "without limitation". All personal
pronouns used in this Agreement shall include the other gender whether used in
the masculine or feminine or neuter gender, and the singular shall include the
plural whenever and as often as may be appropriate.
(j) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed or caused
this Employment Agreement to be duly executed as a sealed instrument as of the
day and year first above written.
SELFCARE CONSUMER PRODUCTS, INC.
By:_____________________________
Name: Xxxxxxx Xxxx
Title: Treasurer
SELFCARE, INC.
By:_____________________________
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
________________________________
Xxxxxx Xxxxxxx
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