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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
Agreement made this 6th day of November, 1995, by and between Xxxxxx
X. Xxxx, residing at 000 X. Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 (the
"Employee"), and National Sanitary Supply Company, a Delaware corporation
having its executive offices at 2900 Chemed Center, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000 ("National").
WHEREAS, National desires to continue to employ the Employee in an
executive capacity to continue and carry out the expansion of the businesses of
National, and the Employee desires to work for National in such capacity on the
terms and conditions hereinafter provided;
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
1. For the period commencing January 1, 1996 and ending on December
31, 1997, subject to earlier termination as provided in Section 8 hereof,
National shall employ the Employee and the Employee shall work in such
executive capacity as the Chief Executive Officer of National shall specify.
Except for normal and customary trips in the ordinary course of business, and
except as otherwise mutually agreed, Employee's place of employment shall be in
the Los Angeles, California area.
2. While the Employee works for National, in accordance with the
provisions of Section 1 hereof, National shall pay the Employee a base annual
salary at the rate of not less than $50,000 per annum. In addition, the
Employee will be considered annually for an incentive compensation payment as
determined by National's Board of Directors. National shall make available to
the Employee medical insurance and certain other fringe benefits which it makes
available to its salaried employees generally. Employee shall be entitled to
reimbursement of his reasonable business and travel expenses on the same basis
and subject to the same conditions as such expenses are reimbursed to other
executives of National.
3. The Employee shall not (except in the performance of his duties
hereunder) at any time during the term of this
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agreement make or cause to be made any copies, pictures, duplicates, facsimiles
or other reproductions or recordings or any abstracts or summaries of any
reports, studies, memoranda, correspondence, manuals, records, plans or other
written, printed or otherwise recorded materials of any kind whatever belonging
to or in the possession of National or any subsidiary of National. The
Employee shall have no right, title or interest in any such material, and the
Employee agrees that (except in the performance of his duties hereunder) he
will not, without the prior written consent of National, remove any such
material from any premises of National, or any parent or subsidiary of
National, and that he will surrender all such material to National immediately
upon the termination of his employment.
4. Without the prior written consent of National, the Employee
shall not at any time (whether during or after his employment with National)
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, any trade secrets,
information, data, know-how or knowledge (including, but not limited to, that
relating to costs, products, equipment, marketing or laboratory methods,
formulae, suppliers, customers, personnel training programs, business expansion
plans or financing or marketing methods) proprietary to National, or any
subsidiary of National.
5. The Employee shall promptly disclose to National (and to no one
else) all improvements, discoveries, ideas and inventions that may be of
significance to National or to any subsidiary of National, 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 National during
or out of his usual hours of work or in or about the premises of National or
elsewhere, and whether made or conceived prior or subsequent to the execution
of this agreement) while in the employ of National or made or conceived within
one year after the termination of his employment by National if resulting from,
suggested by or relating to such employment. All such improvements,
discoveries, ideas and inventions shall be the sole and exclusive property of
National and are hereby assigned to
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National. At the request of National and at its cost, the Employee shall
assist National, or any person or persons from time to time designated by it,
to obtain the grant of patents in the United States and/or in such other
country or countries as may be designated by National, covering such
improvements, discoveries, ideas and inventions and shall in connection
therewith and in connection with the defense of any patents 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 National may from time to time reasonably request.
6. During the continuance of Employee's employment with National and
for a period of two years after Employee has ceased to be an employee of
National, or of any subsidiary of National, whether or not pursuant to this
agreement, the Employee shall not without the prior written consent of
National:
a. directly or indirectly engage in, or
b. assist or have an active interest in whether as
proprietor, partner, investor, shareholder, officer, director or any type of
principal whatever, or
c. enter the employment of or act as an agent for or advisor or
consultant to any person, firm, partnership, association, corporation or
business organization, entity or enterprise that is, or is about to become,
directly or indirectly engaged in any business in any area described in Exhibit
A to this agreement whether in operation or in the planning or development
stage, that competes with or is substantially similar to any business that
National or any subsidiary of National has operated, or had in the planning or
development stage, during the 120-day period immediately prior to the
Employee's ceasing to an employee of or consultant to National or any
subsidiary of National, provided that the restrictions contained in this
Section 6 shall not apply to any area described in Exhibit A to this agreement
that does not meet the following requirements:
(1) National or a subsidiary of National shall have
operated such business in such area, or had such business in the planning or
development stage therein, during the 120-day period immediately prior to the
Employee's ceasing to be
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an active employee of, or consultant to, National or any subsidiary of
National, and
(2) the Employee, during such 120-day period, shall
have had substantial planning, development, administrative or operational
responsibilities for such business of National or any subsidiary of National in
such area.
If the scope of any restriction contained in this Section 6 is too
broad to permit enforcement of such restriction to its full extent, then such
restriction shall be enforced to the maximum extent permitted by law, and the
Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
7. The Employee acknowledges and agrees that National's
remedy at law for any breach of any of the Employee's obligations under
Sections 3, 4, 5 and 6 hereof 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 of such Sections, without the
necessity of actual damage. The provisions of Sections 4 and 6 hereof shall
survive the termination of this agreement.
8. At National's option the Employee's employment hereunder
and his aforesaid base salary and incentive bonus compensation shall terminate
and cease to accrue forthwith upon:
(i) his death, or
(ii) his inability (other than temporary inability
which shall not exceed an aggregate of ninety (90) days during any consecutive
12-month period) to perform his duties hereunder, or
(iii) any failure by him to observe or perform his
agreements herein contained, or his neglect of the faithful performance of
his duties hereunder, if such failure or neglect is not corrected within 45
days of Employee's receipt of written notice of same.
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9. This agreement sets forth the entire agreement and
understanding of the parties concerning the subject matter hereof and
supersedes all prior agreements and understandings between the parties hereto.
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.
This agreement may not be amended or modified except with a written instrument
executed by the parties hereto.
10. The terms and provisions of this agreement shall be binding on
and inure to the benefit of the Employee, his heirs at law, legatees,
distributees, executors, administrators and other legal representatives, and
shall be binding on and inure to the benefit of National and its subsidiaries,
successors and assigns. The Employee expressly agrees that National may assign
this agreement and all of National's rights and obligations hereunder without
the consent of Employee (i) to Chemed, or a parent of Chemed, or (ii) to any
successor in interest to the business and assets of National. The Employee may
not assign, pledge or encumber in any way all or part of his interest under
this agreement without the prior written consent of National. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
instrument on the day first above written.
EMPLOYEE
/s/ Xxxxxxx Xxxx /s/ Xxxxxx Xxxx
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Witness Xxxxxx X. Xxxx
ATTEST: NATIONAL SANITARY SUPPLY COMPANY
/s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxx
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Secretary
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
The States of Arizona, California, Colorado, Indiana, Kansas,
Louisiana, Michigan, Missouri, Mississippi, Nevada, New Mexico, Ohio, Oklahoma,
Oregon, Tennessee, Texas, Utah and Washington.
