EXHIBIT "U"
AMENDMENT TO XXXXX XXXXX EMPLOYMENT AGREEMENT
DATED AS OF DECEMBER 23, 1993
AMENDMENT TO EMPLOYMENT AGREEMENT DATED FEBRUARY 11, 1992
AGREEMENT made this 23rd day of December, 1993 by and between XXXXX X.
XXXXX residing at 000 Xxxxxx Xxxx, Xxxxxxx Xxxxxx, XX 00000 (hereinafter
referred to as the "Executive") and MICRO BIO-MEDICS, INC., a New York
corporation, with principal executive offices located at 000 Xxxxx Xxxxx Xxxxxx,
Xx. Xxxxxx, XX 00000 (hereinafter referred to as the "Company").
W I T N E S S E T H:
WHEREAS, the Company and the Executive have entered into an Employment
Agreement dated February 11, 1992 (the "Agreement"); and
WHEREAS, the Company and the Executive have mutually agreed to make certain
changes to the Agreement:
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as
follows:
1. Article IV is hereby amended and shall be replaced with the following
language:
"ARTICLE IV
WORKING CONDITIONS AND BENEFITS
(A) Executive shall be entitled to a paid minimum three (3) week vacation
during each year of his employment with the Company.
(B) The Executive is authorized to incur reasonable and necessary expenses
for promoting the business of the Company, including authorized expenses for
entertainment, travel and similar items. The Company shall reimburse the
Executive on a bi-monthly basis for all such expenses, upon presentation by the
Executive of an itemized account of such authorized expenditures.
(C) The Executive shall be employed by the Company at executive offices
maintained by the Company in the Greater New York, New Jersey, Connecticut and
Long Island area and at no other location. The Executive shall travel on the
Company's behalf to the extent reasonably necessary.
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(D) The Company shall provide to the Executive during the term of this
agreement a luxury motor vehicle for business use and shall pay for all costs,
expenses (including insurance, maintenance and like charges) in connection with
such use.
(E) The Company shall provide the Executive during the term of this
agreement (and thereafter as provided for under Article VII(A)), with (i) life
insurance in the amount of Two Million ($2,000,000) Dollars payable to
Executive's designee as beneficiary and (ii) Blue Cross/Blue Shield and major
medical health and dental insurance providing coverage for the Executive and his
dependents as per the Company's standard plan(s).
(F) The Company shall provide to the Executive to the full extent provided
for under the laws of the Company's state of incorporation and the Company's By-
Laws, indemnification for any claim or lawsuit which may be asserted against the
Executive when acting in such capacity for the Company, provided that said
indemnification is not in violation of any Federal or state law, rule or
regulation."
2. Article VI is hereby amended and shall be replaced with the following
language:
"ARTICLE VI
TERM
The term of this agreement shall commence as of the date hereof and
continue until February 11, 1998 unless this agreement is otherwise terminated
pursuant to the terms hereof."
3. Article VII is hereby amended and shall be replaced with the following
language:
"ARTICLE VII
TERMINATION
(A) The Company may terminate this agreement subject to the
provisions of paragraph (C) upon written notice to the Executive if the
Executive becomes disabled and as a result of such disability is substantially
unable to perform his duties hereunder for a period of twelve (12) consecutive
months; such notice shall be forwarded to the Executive by the Company upon and
after a resolution of the Company's Board of Directors authorizing such
notification. Such notification shall provide that Executive and his dependents
will continue to be covered for life, dental and health insurance, at the
Company's sole expense, pursuant to the provisions of Article IV(E) until such
time as Executive is employed elsewhere with similar benefits.
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Such health and dental insurance shall be the same insurance coverage
provided or offered to the other senior executives of the Company.
(B) The Company may terminate this agreement upon written notice from
the Company to the Executive if the Executive has willfully committed acts of
misconduct materially detrimental to the Company. Such notice shall be
forwarded to the Executive by the Company upon and after a resolution of the
Company's Board of Directors authorizing such notification.
(C) In the event this agreement is terminated for any reasons other
than those stated in Paragraph (B) of this Article, then Executive shall be
entitled, without offset, defense or counterclaim as liquidated damages, to one
lump sum payment in cash at the termination date of an amount of money equal to
the greater of (i) $2,000,000 or (ii) the sum of five years compensation which
shall be computed as salary at the rate of payment he would have received as an
employee for the five years following the date of termination notwithstanding
the normal term of this agreement plus five times the last annual bonus received
by Executive. In the event there is a dispute as to the amount of liquidated
damages payable to Executive, then on the termination date the Company shall be
required to pay into an interest bearing escrow account with Citibank N.A., the
sum of $4,000,000 (less the amount of liquidated damages paid to Executive which
is not in dispute under this subparagraph (C)) which sum shall remain in escrow
until the matter has been settled by arbitration in accordance with Article X
hereof and Executive shall continue to receive his full compensation during the
continuation of any dispute pursuant to the provisions of Article X. In
addition, the Company shall be responsible for all reasonable legal fees and
expenses incurred by Executive in collecting the liquidated damages due to
Executive under the terms of this agreement. It is also agreed upon by the
parties that the amount of liquidated damages payable to Executive shall not be
reduced by the immediate or subsequent future employment of Executive with any
firm other than the Company or due to the failure to look for employment. All
amounts paid into escrow which are released to Executive shall be accompanied by
the interest earned thereon.
(D) If there is a substantial change in the management of the
Company, wherein any Board of Directors that may be elected becomes opposed to,
or acts contrary to, the policy of the Board of Directors now in control of the
Company and, as a result thereof, Executive, in his sole discretion, finds it
difficult for him to work harmoniously and effectively with any such Board of
Directors of the Company, or the Board of Directors of the Company shall
determine that Executive shall not be the President and Chief Executive Officer
of the Company, or Executive shall not be elected as a member of the Board of
Directors of the Company, then, in any of such events, Executive shall have the
absolute right and option to resign upon giving the Company 60 days written
notice of his intention to do so. Upon such resignation, the Executive shall be
entitled to the liquidated damages and expenses as set forth in paragraph (C) of
this Article VII in consideration of the non-competition agreement contained in
Article VIII.
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(E) In the event that this agreement shall be terminated under this
Article for any reason, nothing hereinabove stated shall prevent or limit the
Executive from bringing any right of action or claim against the Company for
breach of this agreement."
4. All other provisions of the Agreement remain unchanged and shall be in
full force and effect. The Agreement and this amendment shall constitute the
full agreement between the parties hereto; no change, addition or amendment
shall be made hereto except by written agreement signed by the parties hereto.
This agreement supersedes all prior agreements and understandings.
IN WITNESS WHEREOF, the parties hereto have executed this agreement and
affixed their hands and seal the day and year first above written.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Executive
(Corporate Seal) MICRO BIO-MEDICS, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Chief Financial
and Accounting Officer and
Authorized Person by the
Compensation Committee
ATTEST:
/s/ Xxxxxxx Xxxx
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