1
EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made this 10th day of
November, 1995, between UNIVERSAL MEDICAL SYSTEMS, INC, a Nevada corporation,
with its principal office located at 00000 Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000 ("Company") and XXXXX X. XXXXX whose address is 00000
Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 ("Employee").
Recitals:
Whereas: Employee has been serving as a principal executive officer
of the Company and/or the Company's subsidiaries;
Whereas: Employee's leadership, expertise, experience and service
have constituted a major factor in the successful growth and development of the
Company and its subsidiaries;
Whereas: The Company desires to employ and retain the unique
experience, ability, background and services of Employee as a principal
executive officer of the Company. The Company also desires to retain Employee's
services in an advisory and consulting capacity and to prevent any other
competitive business from securing his services and utilizing his experience,
background and know-how; and
Whereas: The terms, conditions and undertakings of this Agreement
were submitted to and duly approved and authorized by the Company's Board of
Directors at a meeting held on November 10, 1995.
It is, therefore, agreed:
1. Employment.
(a) Executive Employment. The Company employs Employee and
Employee accepts employment in a principal executive and managerial capacity
commencing upon execution of this Agreement and continuing through December 31,
2000. ("Executive Employment"). After December 31, 1998, however, either
Employee or Company may at any time terminate Employee's Executive Employment
on three months prior written notice to the other party, as the case may be.
(b) Advisory Period. If Employee's Executive Employment is
terminated as provided in paragraph (a) above, the Company shall still retain
Employee as an advisor and consultant through December 31, 2000 ("Advisory
Period").
2
2. Duties. During the period of Executive Employment, Employee
shall devote full time to such employment. If elected, Employee shall serve as
a director and officer of the Company and/or any of its subsidiaries or
affiliates and shall perform duties customarily incident to such offices and
all other duties the Board of Directors may from time to time assign to
Employee. Employee shall be entitled to annual vacations in a manner
commensurate with his status as a principal executive, which shall not be less
than the annual vacation period to which he is presently entitled.
3. Executive Salary. During the period of Executive Employment
the Company shall pay to Employee a salary ("Executive Salary") to be fixed by
the Board of Directors from time to time during that period. In no event,
however, shall Employee's Executive Salary be less than one hundred twenty
thousand and no/100 dollars ($120,000.00) annually. Employee shall be paid
with the same frequency as are other executives of the Company. In addition to
all other remuneration provided for in this Agreement, if Employee serves at
any time as a director of the Company, or of any of its subsidiaries or
affiliates, he shall be entitled to receive the same Director's Fee for such
services as that received by the other directors.
4. Advisory Compensation.
(a) Payment and Services. During the Advisory Period, the
Company shall pay to Employee an annual compensation equal to one-half of his
Executive Salary during the last 12-month period of his employment ("Advisory
Compensation"), to be paid in equal monthly installments on or about the middle
of each month. While receiving such Advisory Compensation, Employee shall at
all reasonable times, to the extent his physical and mental condition permits,
be available to consult with and advise the Company's officers, directors and
other representatives. If Employee's physical or mental condition prevents him
from fulfilling his consulting or advisory duties, he shall still be paid the
Advisory Compensation during the entire Advisory Period.
(b) Location. Employee shall not be required, without his
consent, to render advisory services at any place other than the Tampa, Florida
metropolitan area or the city of his residence if he moves out of the Tampa,
Florida area.
(c) Restriction. During the Advisory Period, Employee shall
be deemed to be an independent contractor. He shall be permitted to engage in
any business and perform any service for his own account, provided that such
business or service shall not be in competition with, or be for a company that
is in competition with, the Company or its subsidiaries or affiliates.
3
5. Trade Secrets and Confidential Information. During the period
of this Employment Agreement, Employee may have access to, and become familiar
with, various trade secrets and confidential information belonging to Company,
and/or subsidiaries or affiliates of the Company, including, but not limited
to, documents and other information regarding Company's technology, equipment
and products, sales methods, pricing and costs, as well as information
pertaining to Company's customers. Employee acknowledges that all such
information is highly confidential and constitutes trade secrets. Employee
also acknowledges that such confidential information and trade secrets are
owned and shall continue to be owned solely by Company. During the term of
employment and for thirty-six (36) months after such employment terminates for
any reason, regardless of whether termination is initiated by Company or
Employee, Employee agrees not to use, communicate, reveal or otherwise make
available such information for any purpose whatsoever, or to divulge such
information to any person, partnership, corporation or entity other than the
Company or persons expressly designated by the Company, unless Employee is
compelled to disclose it by judicial process.
6. Death. If Employee dies between the date of this Agreement
and December 31, 2000, compensation payments shall continue. Such payments
shall be made to Employee's widow, or if she does not survive him, to his
estate, in equal monthly installments. The total of such payments shall equal
the Advisory Compensation provided for in paragraph 4(a) above. Such payments
shall commence with the month following Employee's date of death.
7. Disability. If Employee becomes disabled during the period of
his Executive Employment , his Executive Salary shall continue at the same rate
that it was on the date of such disability. If such disability continues for a
period of four (4) consecutive months, the Company, at its option, may
thereafter, upon written notice to Employee or his personal representative,
terminate his Executive Employment. In such event the Advisory Period shall
commence immediately upon such termination of Executive Employment and shall
continue until December 31, 2000 regardless of the disability. If Employee
receives disability payments from insurance policies paid for by the Company,
the payments to Employee during any period of disability shall be reduced by
the amount of disability payments received by Employee under any such insurance
policy or policies. For the purpose of this Agreement, disability shall mean
mental or physical illness or condition rendering Employee incapable of
performing his normal duties with the Company.
8. Expenses. The Company recognizes that Employee will have to
incur certain out-of-pocket expenses related to his services and that it will
be extremely difficult to account for such expenses. It is understood that
Employee's compensation is intended to cover all such out-of-pocket expenses.
The Company, however, shall reimburse Employee for any specific expenditures
incurred for travel, lodging, entertainment, and the like. During the Advisory
Period the Company shall reimburse Employee for all reasonable expenses
incurred by Employee incident to the rendering of advisory and consultant
services.
4
9. Employee Benefits. This Agreement shall not be in lieu of any
rights, benefits or privileges to which Employee may be entitled as an employee
of the Company under any retirement, pension, profit-sharing, insurance,
medical, hospitalization or other plans which may now be in effect or which may
hereafter be adopted by the Company. Employee shall have the same rights and
privileges to participate in such plans and benefits as any other employee of
the Company during his period of employment.
10. Automobile. The Company recognizes Employee's need for an
automobile for business purposes, and that the need for an automobile is for a
continuous period of twenty-four hours each day, as the Employee is on call for
the Company's business at all times. Therefore, the Company shall provide
Employee with an automobile, including all related maintenance, repairs,
insurance and other costs, or an automobile allowance. The automobile, or
automobile allowance, shall be comparable to those which the Company provides
its other principal executives.
11. Nontransferability. Neither Employee, his wife, nor their
estates or personal representatives, shall have any right to commute,
anticipate, encumber or dispose of any payment under this Agreement. Such
payments and accompanying rights are nonassignable and nontransferable, except
as otherwise specifically provided in this Agreement.
12. Binding effect. This Agreement shall inure to the benefit of
and be binding upon the Company, its successors and assigns, including, without
limitation, any person, partnership, company or corporation which may acquire
substantially all of the Company's assets or business or with or into which the
Company may be liquidated, consolidated, merged or otherwise combined. In
addition, this Agreement shall inure to the benefit of and be binding upon
Employee, his heirs, distributees and personal representatives. If payments
become payable to Employee's surviving widow and she dies prior to December 31,
2000, the payments shall still continue to be made to her estate until that
date.
13. Waiver. The failure of either party to insist in any one or
more instances upon performance of any term or condition of this Agreement
shall not be construed as a waiver of its future performance. The obligations
of either party with respect to such term, covenant or condition shall continue
in full force and effect.
14. Notices. Any notice given hereunder shall be in writing and
delivered or mailed by registered or certified mail, return receipt requested,
to the addresses for the respective parties as set forth above. Either party
may, by notice as provided above, designate a different address. Any such
notice shall be effective on the date of receipt.
5
15. Entire Agreement. This Agreement supersedes all previous
agreements between the Company and Employee and contains the entire
understanding and agreement between the parties with respect to its subject
matter. This Agreement cannot be amended, modified or supplemented in any
respect except by a subsequent written agreement entered into by both parties.
16. Headings. Headings in this Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
17. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
18. Counterparts. This Agreement may be executed in two more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
UNIVERSAL MEDICAL SYSTEMS, INC. EMPLOYEE
By: /s/ Xxx Xxxx, Xx. /s/ Xxxxx X. Xxxxx
--------------------------- -----------------------------
XXX XXXX, XX. Xxxxx X. Xxxxx
Chief Financial Officer
6
ADDENDUM TO EMPLOYMENT AGREEMENT
This Addendum to Employment Agreement is made this 19th day of
December, 1995, by and between Universal Medical Systems, Inc. ("Company") and
Xxxxx X. Xxxxx ("Employee").
Employee agrees that for the calendar year 1996, Employee shall be
paid the sum of $84,000.00 as an annual salary and the difference between the
sum of $84,000.00 and the annual salary provided for pursuant to paragraph 3 of
the Employment Agreement dated November 11, 1995, shall be accrued.
UNIVERSAL MEDICAL SYSTEMS, INC. EMPLOYEE
By: /s/ Xxx Xxxx, Xx. /s/ Xxxxx X. Xxxxx
--------------------------- -----------------------------
XXX XXXX, XX. Xxxxx X. Xxxxx
Chief Financial Officer
