Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 1st day of July 2002, by and
between Fresenius Medical Care North America ("FMC" or the "COMPANY"), with
principal offices located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 and Xxxx X.
Xxxxxx ("EMPLOYEE") currently residing at 000 Xxxxx Xxxxx Xxxx, Xxx Xxxxxx, XX
00000.
WITNESSETH:
WHEREAS, FMC and EMPLOYEE desire to extend the employment term of EMPLOYEE as
Senior Vice President of Corporate Compliance and Government Affairs through
June 30, 2003; and
WHEREAS, the parties hereto desire to express the terms and conditions of such
employment.
NOW THEREFORE, it is understood and agreed to between the parties as follows:
1. RETENTION, DUTIES AND RESPONSIBILITIES. FMC hereby employs EMPLOYEE as
Senior Vice President of Corporate Compliance and Government Affairs, and
EMPLOYEE hereby accepts such employment, in each case upon the terms and
conditions of this Agreement. EMPLOYEE shall provide services
(approximately 1,040 hours during the term of this agreement) at such
times and places as the parties shall reasonably agree, provided that
COMPANY shall in no event require EMPLOYEE to provide services for more
than one half of the time contracted hereunder at a location outside
EMPLOYEE's primary residence or its vicinity. EMPLOYEE shall report to the
COMPANY'S Chief Executive Officer EMPLOYEE shall to the best of his
ability and experience competently, loyally, diligently and
conscientiously perform all of the duties and obligations expressly or
implicitly required under this Agreement. EMPLOYEE further agrees that, in
conducting business in the interest of the COMPANY, he will not engage in,
knowingly permit others under his control to carry on, or induce others to
engage in any practice or commit any acts in violation of any federal or
state or local law or ordinance.
2. TERM. The term of this Agreement shall commence as of July 1, 2002 and
shall terminate as of June 30, 2003 in accordance with the provisions
hereinafter stated unless extended in writing by mutual agreement of the
parties.
3. COMPENSATION AND BENEFITS.
a. COMPANY shall pay EMPLOYEE a salary of $344,500 during the term of
this Agreement, payable in accordance with FMC's payroll procedures,
subject to customary withholding and employment taxes. EMPLOYEE
shall not participate in FMC's Incentive Compensation Program or any
other such incentive compensation plans.
b. Benefit Programs. EMPLOYEE shall continue to be eligible to
participate in the group employee benefits programs at the senior
executive level as now established or which subsequently become
available.
c. Life Insurance. EMPLOYEE will be provided with life insurance in
accordance with FMC's policy, currently capped at Four Hundred
Thousand Dollars ($400,000). EMPLOYEE will be provided with the
opportunity to purchase supplemental life insurance of an additional
Six Hundred Thousand Dollars ($600,000) beyond the current policy of
coverage at his own expense, with proof of good health.
d. Expenses. EMPLOYEE will be reimbursed for travel and other expenses
related to the performance of his duties under the Agreement and in
accordance with the COMPANY's policies.
4. Termination of Agreement. This Agreement may be terminated under the
following circumstances:
a. Death. EMPLOYEE's employment hereunder shall terminate upon his
death.
b. Total Disability. The COMPANY may terminate EMPLOYEE's employment
hereunder upon EMPLOYEE becoming "Totally Disabled." For purposes of
this Agreement, EMPLOYEE shall be "Totally Disabled" if EMPLOYEE is
physically or mentally incapacitated so as to render EMPLOYEE
incapable of performing EMPLOYEE's usual and customary duties under
this Agreement. EMPLOYEE's receipt of Social Security disability
benefits or disability benefits under a Company-sponsored long-term
disability plan shall be deemed conclusive evidence of Total
Disability for purpose of this Agreement; provided, however, that in
the absence of EMPLOYEE's receipt of such Social Security or
long-term disability benefits, the Company's Board of Directors may,
in its reasonable discretion (but based upon medical evidence),
determine that EMPLOYEE is Totally Disabled.
c. Voluntary Termination. COMPANY or EMPLOYEE may terminate EMPLOYEE's
employment hereunder at any time after providing written notice to
the other party. The EMPLOYEE is required to give the COMPANY at
least thirty (30) days written notice if he wishes to terminate his
employment pursuant to this provision.
d. Termination by the COMPANY for Cause. The COMPANY may terminate
EMPLOYEE's employment for Cause at any time after providing written
notice to EMPLOYEE. For purposes of this Agreement, the term "Cause"
shall mean, with respect to the EMPLOYEE, any of the following: (i)
commission by EMPLOYEE of a felony or of any criminal act involving
moral turpitude; (ii) deliberate and continual refusal to
satisfactorily perform employment duties reasonably requested by the
COMPANY after 20 days' written notice by certified mail of such
failure to perform, specifying that the failure constitutes cause
(other than as a result of vacation, sickness, illness or injury);
(iii) fraud or embezzlement determined in accordance with the
COMPANY's normal, internal investigative procedures consistently
applied in comparable circumstances to employees; (iv) gross
misconduct or gross negligence in connection with the business of
the COMPANY which has substantial effect on the COMPANY; (v) failure
to obtain and maintain in good order any licenses required for
EMPLOYEE to perform his duties under this Agreement; or (vi) a
breach of any of the covenants set forth in Section 6 below.
EMPLOYEE will be considered to have been terminated for "Cause" if
the COMPANY determines that EMPLOYEE engaged in an act constituting
"Cause," regardless of whether the individual terminates retention
voluntarily or retention is terminated involuntarily, and regardless
of whether the individual's termination initially was considered to
have been for "Cause."
e. Termination by EMPLOYEE for Cause. This Agreement may be terminated
by EMPLOYEE in the event of a breach by FMC of any of its
obligations under this Agreement, provided EMPLOYEE gives FMC
written notice specifying the manner in which he believes FMC has
breached this Agreement and FMC has thirty (30) days from receipt of
such notice to cure such breach, or in the case of other than a
non-payment of money breach, if such breach cannot be cured within
thirty (30) days, to commence a good faith effort to cure.
f. Notice of Termination. Any termination by the COMPANY or the
EMPLOYEE under this Agreement shall be communicated by notice of
termination to the other party hereto. For purposes of this
Agreement, a Notice of Termination shall mean a notice in writing
which shall indicate the specific termination provision in this
Agreement relied upon to terminate EMPLOYEE's employment and shall
set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of EMPLOYEE's employment under
the provision so indicated.
5. COMPENSATION FOLLOWING TERMINATION OF RETENTION.
a. Under all circumstances, upon termination the EMPLOYEE shall be
entitled to receive:
(i) Any accrued but unpaid salary for services rendered to the
date of termination; and
(ii) Any benefits to which EMPLOYEE may be entitled upon
termination pursuant to the plans, policies and arrangements
referred to in Section 4 hereof shall be determined and paid
in accordance with the terms of such plans, policies and
arrangements.
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b. In the event that EMPLOYEE's employment hereunder is voluntarily
terminated by the COMPANY in accordance with Section 5(c), or in the
event that EMPLOYEE's retention hereunder is terminated by the
EMPLOYEE in accordance with Section 5(e), the EMPLOYEE shall also be
entitled to receive the balance of the salary payments remaining
under the specified term of this Agreement. At EMPLOYEE's option, he
may elect to receive such salary continuation in a lump sum or under
COMPANY's or in accordance with COMPANY's standard payroll
procedures. In the event EMPLOYEE elects to receive salary
continuation payments in accordance with COMPANY's standard payroll
procedures, EMPLOYEE shall receive continuation at COMPANY's expense
of any coverage under COMPANY's life, medical and dental plans on
the same basis and to the same extent as the coverage provided
during EMPLOYEE's employment. In the event EMPLOYEE elects to
receive salary continuation in a lump sum, EMPLOYEE shall have the
right to elect to pay for such coverage under COBRA.
c. Any stock options or other awards will continue to vest in
accordance with the terms of the award and the plan pursuant to
which it was made. EMPLOYEE shall have three (3) years from any such
termination to exercise his Vested Stock Options. Should he fail to
exercise these options within this period, they will be forfeited at
the end of the period.
6. NON-DISCLOSURE/NON COMPETITION AGREEMENT. EMPLOYEE acknowledges that
during the term of this Agreement, EMPLOYEE will have access to and become
acquainted with Confidential Information of the COMPANY. Confidential
Information means all information related to the present or planned
business of FMC that has not been released publicly by authorized
representatives of FMC, and shall include but not be limited to, trade
secrets and know-how, inventions, marketing and sales programs, EMPLOYEE,
customer, patient and supplier information, information from patient
medical records, financial data, pricing information, regulatory approval
and reimbursement strategies, data, operations and clinical manuals.
EMPLOYEE agrees not to use or disclose, directly or indirectly, any
Confidential Information of FMC at any time and in any manner, except as
required in the course of his employment with FMC or with the express
written authority of FMC.
EMPLOYEE understands that his non-disclosure obligations will continue
following termination of this Agreement.
EMPLOYEE agrees that during the term of his retention, and for a period of
one (1) year immediately after termination of this Agreement, EMPLOYEE
will not directly or indirectly for his own benefit or the benefit of
others:
a. render services for a competing organization in connection with
competing products as an EMPLOYEE, employee, officer, agent, broker,
EMPLOYEE, partner, stockholder (except that EMPLOYEE may own three
percent (3%) or less of the equity securities of any publicly-traded
company);
b. hire or seek to persuade any employee of FMC to discontinue
employment or to become employed in any competing organization or
seek to persuade any independent contractor or supplier to
discontinue its relationship with FMC; and
c. solicit, direct, take away or attempt to take away any business or
customers of FMC.
Nothing in this Agreement would preclude EMPLOYEE from working for a
competitor of FMC's subsequent to termination of this Agreement provided
EMPLOYEE will not be engaged, directly or indirectly, in any business in
which FMC is actively engaged at the time of EMPLOYEE's termination or in
any new business which FMC is in the process of setting up in which
EMPLOYEE had direct involvement while employed by FMC. EMPLOYEE also
agrees to inform FMC of any such employment with a competitor before
beginning such employment.
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In consideration of the promises made by the EMPLOYEE under this Section, the
COMPANY agrees to pay EMPLOYEE the sum of $172,000, payable in four equal
installments of $43,000 at the end of each calendar quarter following
termination, except where such termination occurs pursuant to Section 4 (d).
7. ENFORCEMENT OF COVENANTS.
a. Termination of Retention and Forfeiture of Compensation. EMPLOYEE
agrees that in the event that the COMPANY determines that EMPLOYEE
has breached any of the covenants set forth in Section 6 hereof
during EMPLOYEE's employment, the COMPANY shall have the right to
terminate EMPLOYEE's retention for "Cause."
In addition, EMPLOYEE agrees that if the COMPANY determines that
EMPLOYEE has breached any of the covenants set forth in Section 6 at
any time, the COMPANY shall have the right, notwithstanding anything
herein to the contrary, to discontinue any or all amounts otherwise
payable to EMPLOYEE hereunder. Such termination of retention or
discontinuance of payments shall be in addition to and shall not
limit any and all other rights and remedies that the COMPANY may
have against EMPLOYEE.
b. Right to Injunction. EMPLOYEE acknowledges that a breach of the
covenants set forth in Section 6 hereof will cause irreparable
damage to the COMPANY with respect to which the COMPANY's remedy at
law for damages will be inadequate. Therefore, in the event of
breach or anticipatory breach of the covenants set forth in this
section by EMPLOYEE, EMPLOYEE and the COMPANY agree that the COMPANY
shall be entitled to the following particular forms of relief, in
addition to remedies otherwise available to it at law or equity: (i)
injunctions, both preliminary and permanent, enjoining or
restraining such breach or anticipatory breach and EMPLOYEE hereby
consents to the issuance thereof forthwith and without bond by any
court of competent jurisdiction; and (ii) recovery of all reasonable
sums expended and costs, including reasonable attorney's fees,
incurred by the COMPANY to enforce the covenants set forth in this
section.
c. Separability of Covenants. The covenants contained in Section 6
hereof constitute a series of separate covenants, one for each
applicable State in the United States and the District of Columbia,
and one for each applicable foreign country. If in any judicial
proceeding, a court shall hold that any of the covenants set forth
in Section 6 exceed the time, geographic, or occupational
limitations permitted by applicable laws, EMPLOYEE and the COMPANY
agree that such provisions shall and are hereby reformed to the
maximum time, geographic, or occupational limitations permitted by
such laws. Further, in the event a court shall hold unenforceable
any of the separate covenants deemed included herein, then such
unenforceable covenant or covenants shall be deemed eliminated from
the provisions of this Agreement for the purpose of such proceeding
to the extent necessary to permit the remaining separate covenants
to be enforced in such proceeding. EMPLOYEE and the COMPANY further
agree that the covenants in Section 6 shall each be construed as a
separate agreement independent of any other provisions of this
Agreement, and the existence of any claim or cause of action by
EMPLOYEE against the Company whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of any of the covenants in Section 6.
8. FMC DOCUMENTS AND EQUIPMENT. All documents and equipment relating to the
business of FMC, whether prepared by EMPLOYEE or otherwise coming into
EMPLOYEE's possession, are the exclusive property of FMC, and must not be
removed from the premises of FMC except in the course of providing
services under this Agreement. Any such documents and equipment must be
returned to FMC when EMPLOYEE upon termination of this Agreement.
9. WITHHOLDING OF TAXES. The COMPANY may withhold from any compensation and
benefits payable under this Agreement federal, state, local, or other
taxes.
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10. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement shall constitute the
entire agreement between the parties and supersedes all existing
agreements between them, whether oral or written, with respect to the
subject matter hereof except for the terms of applicable benefit plans and
stock option awards. Any waiver, alteration, or modification of any of the
provisions of this Agreement, or cancellation or replacement of this
Agreement shall be accomplished in writing and signed by the respective
parties.
11. NOTICES. Any notice, consent, request or other communication made or given
in connection with this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by registered or
certified mail, return receipt requested, to those listed below at their
following respective addresses or at such other address as each may
specify by notice to the others:
To the COMPANY:
Fresenius Medical Care North America
Corporate Headquarters
Two Ledgemont Center
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Vice President, Human Resources
To EMPLOYEE:
000 Xxxxx Xxxxx Xxxx
Xxx Xxxxxx, XX 00000
12. GOVERNING LAW. This Agreement shall be construed in accordance with, and
the laws of the Commonwealth of Massachusetts shall govern the rights of
the parties.
13. SEPARABILITY. If any term or provision of this Agreement is declared
illegal or unenforceable by any court of competent jurisdiction and cannot
be modified to be enforceable, such term or provision shall immediately
become null and void, leaving the remainder of this Agreement in full
force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
undersigned duly authorized persons as of the day and year first stated above.
NATIONAL MEDICAL CARE, INC. d/b/a
FRESENIUS MEDICAL CARE
NORTH AMERICA
By: /s/ Xxxxxx X. Xxxxxxxx 5/15/02
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Xxxxxx X. Xxxxxxxx (DATE)
Senior Vice President and
General Counsel
/s/ Xxxx X. Xxxxxx 5/24/02
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Xxxx X. Xxxxxx (DATE)
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