Exhibit (d)(2)(O)
The Xxxxxx Biomechanics Group, Inc.
000 Xxxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
December ___, 2000
Xx. Xxxxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxx:
1. Simultaneously herewith The Xxxxxx Biomechanics Group, Inc. (the
"Company") is entering into a Tender Offer Agreement (the "Agreement") with
OrthoStrategies, Inc. and OrthoStrategies Acquisition Corp.
2. For purposes of this letter the date on which the Offer, as defined in
the Agreement, is consummated or, if earlier, the date on which the Agreement is
terminated, is referred to as the "Commencement Date."
3. (a) You hereby confirm that you agree to remain in the employ of the
Company, and, subject to the right of the Company to terminate your employment
for cause, the Company hereby confirms that it agrees to employ you, through the
Commencement Date. Please be advised that the Agreement provides that you will
be paid, if the Closing (as defined in the Agreement) occurs, a bonus in the
amount and under the circumstances described in the Agreement. If you remain in
the employ of the Company until ninety days after the Commencement Date, or are
terminated prior to such ninetieth day by the Company without cause (as
reasonably determined by the Board of Directors of the Company), and such bonus
is otherwise due as per the Agreement, it will be paid within one hundred twenty
days of the Commencement Date.
(b) You agree to remain in the employ of the Company for a period of
ninety (90) days following the Closing (said period being referred to as the
"Term") at your annual base salary at the rate then in effect. If you remain in
the employ of the Company for such period or are terminated prior to such
ninetieth day by the Company without cause (as reasonably determined by the
Board of Directors of the Company), then upon receipt from you of a release of
all claims, if any, you may then have against the Company, the Company, in
consideration of your agreement to abide by the non-compete agreement set forth
below, shall pay you, as severance, for any unexpired portion of the Term and
for the three (3) months following immediately thereafter at the rate of your
annual base salary then in effect. In addition, the
Company will continue to provide you with your current level of benefits during
the six months following the Closing.
4. As an inducement to the Company to enter into this Agreement and, if
applicable, in consideration of the Company's obligation to pay the severance
provided for herein, you covenant and agree that during the period which is the
greater of (a) three (3) months following your termination of employment and (b)
the period during which you are being paid pursuant to paragraph 3 above, you
shall not, directly or indirectly, for your account or the account of any third
party, or as an employer, employee, consultant, manager, lender, agent, broker,
contractor, partner, joint venturer, stockholder (other than the holding of less
than 1% of the voting securities of a publicly traded company), director,
principal, licensee, sales representative, distributor or otherwise:
(i) Engage in any business that engages in the design, manufacture
or marketing of orthotic products;
(ii) Directly or indirectly, for your own account or the account of
others, solicit, hire or retain any employee or exclusive agent of the Company
or its affiliates or persuade or entice any such employee or agent to leave the
employ of the Company;
(iii) Molest or interfere with the goodwill and relationship of the
Company with any of its customers or suppliers; or
(iv) Persuade, accept, induce or solicit any of the customers of the
Company or its affiliates, now existing or hereafter obtained, to engage anyone
other than the Company or its affiliates to design, manufacture or market
orthotic products for such customers, subscribers and accounts.
5. You further acknowledge that you have been and will be provided with
information about the confidential affairs of the Company, including proprietary
information about its business, products, costs, profits, finances, internal
financial statements and projections, markets, sales, customers, vendors,
personnel, pricing policies, operational methods, technical processes and
methods, plans for future developments, specifications, trade secrets,
technology, know-how, research and development and other information not
available to the public (herein, "Confidential Information") all of which are
highly confidential and proprietary to the Company; and hereby agree to:
(i) keep secret all of the Confidential Information and not to
disclose it to anyone outside the Company without the Company's prior written
consent, except as may be required in connection with the performance of your
duties as an employee of the Company, except for such Confidential Information
which:
(1) is or becomes generally available to the public through no act on your
part in breach of this agreement;
(2) is or becomes available on a non-confidential basis from a party that
is not subject to an obligation of confidentiality with respect thereto; or
(3) is required to be disclosed pursuant to subpoena, court order or
applicable law;
(ii) use the Confidential Information solely in your capacity as an
employee at the Company, and not to make use of any Confidential Information for
any other purpose, including competing with the Company or for your own account
or the account of any third party.
6. The parties hereto acknowledge that the Company may suffer irreparable
harm in the event of a breach of Sections 4 and 5 hereof and that monetary
damages in such event are not calculable. As a result, in addition to any other
remedy that may be available, the parties agree that the Company shall be
entitled to equitable relief, including, without limitation, injunctive relief
and specific performance in the event of a breach or threatened breach of
Section 5 hereof, and the Company shall not be required to post a bond in
connection with seeking such equitable relief. You shall bear all costs incurred
by the Company, including, but not limited to, fees and expenses of attorneys in
connection with seeking any such equitable remedies.
7. This letter shall be governed by and construed in accordance with the
laws of the State of New York (without giving effect to the principles of
conflicts of law). Each of the parties agrees that the federal or state courts
located in the State of New York shall have exclusive jurisdiction in connection
with any dispute arising out of this letter.
8. If any provision of this letter, or any part of any of them, is
hereafter construed or adjudicated to be invalid or unenforceable, the same
shall not affect the remainder of the covenants or rights or remedies which
shall be given full effect without regard to the invalid portions.
9. You hereby affirm that you do not presently have any claim against the
Company arising out of relating to your employment with the Company pertaining
to the period commencing from the date of your first contact with the Company
through the first date of your employment and through the date hereof; and you
are not aware of any facts or circumstances which you reasonably believe could
lead to any claim by you against the Company in the future other than claims
pertaining solely to the enforcement of the obligations of the Company pursuant
to this letter.
10. No term, provision or condition of this letter may be modified or
discharged unless such modification or discharge is agreed to in writing and
signed by the parties hereto. No waiver by either party hereto of any breach by
the other party hereto of any term, provision or condition of this letter to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
The Xxxxxx Biomechanics Group, Inc.
By:______________________________
Title:
Agreed as of the date written above:
______________________
Xxxxxx X. Xxxxxx
