Exhibit 10.11
MEDEX, INC.
SEVERANCE AND NON-COMPETE AGREEMENT
This SEVERANCE AND NON-COMPETE AGREEMENT (this "AGREEMENT") is made as of
May 21, 2003, by and between Medex, Inc., an Ohio corporation (the "COMPANY"),
and Xxxxxxx X. Xxxxxxx (the "EXECUTIVE").
RECITALS
WHEREAS, the Company desires to continue the employment the Executive, and
the Executive desires to remain employed by the Company, in accordance with
terms and conditions set forth herein;
WHEREAS, during the course of such employment, the Executive will
participate in the development of, and will be privy to, proprietary and
confidential information of MedVest Holdings Corporation ("MEDVEST"), the
Company and its Subsidiaries (collectively, the "MEDVEST ENTITIES" and,
individually, an "MEDVEST ENTITY"), including without limitation, trade secrets,
customer lists, strategic business plans, pricing and billing practices,
relationships with vendors and know-how involved in the operation of the
Company's and its Subsidiaries' businesses (collectively, the "CONFIDENTIAL
INFORMATION");
WHEREAS, to obtain the services of the Executive and to protect the
Confidential Information and goodwill of the MedVest Entities, the parties
desire to execute and deliver this Agreement; and
WHEREAS, the Executive will derive substantial benefits from this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs the Executive as the Vice President
and General Counsel of the Company and the Executive hereby accepts and agrees
to serve the Company in the capacities described in SECTION 1(b), and (if and to
the extent so requested by the Company's Board of Directors (the "BOARD")) in
such other capacities to which the Executive may be appointed consistent with
SECTION 3, in accordance with the terms and conditions hereinafter set forth.
(b) The Executive shall initially have the duties,
responsibilities and authority customary to an employee serving as the Vice
President and General Counsel of the Company. The Executive shall report to and
take direction from the Chief Executive Officer.
(c) Excluding reasonable vacations compatible with the Executive's
position and periods of illness, injury or other disability, the Executive shall
give his best efforts and
devote substantially all of his business time and attention to the business and
interests of the MedVest Entities. The Executive shall devote his business time,
abilities and attention to these activities and shall perform his duties in a
professional, ethical and businesslike manner.
(d) For purposes of the Agreement, (i) "SUBSIDIARIES" shall mean,
with respect to any Person, any corporation or other entity of which the equity
securities or other ownership interests having the voting power to elect a
majority of the board of directors or other governing body are, at the time of
determination, owned by such Person, directly or through one or more
Subsidiaries and (ii) "PERSON" shall mean a natural person, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization or other entity, or a
governmental entity or any department, agency or political subdivision thereof.
2. TERM OF EMPLOYMENT. The term of the Executive's employment under
this Agreement shall be at will and nothing in this Agreement shall provide
Executive with any contractual right to continued employment.
3. COMPENSATION AND BENEFITS. Initially, the Company shall pay to the
Executive, and the Executive shall accept from the Company, as full compensation
for the Executive's services hereunder, compensation as follows:
(a) BASE SALARY. The Executive shall be paid a base annual salary
equal to $200,000.00, which shall be paid in accordance with the payroll
practices of the Company as in effect from time to time (the "BASE SALARY").
(b) ANNUAL BONUS. The Executive shall be entitled to receive an
annual year-end performance bonus determined in accordance with the procedures
and terms of the Company's performance bonus system in place immediately prior
to the date hereof (the "PERFORMANCE BONUS"). The Performance Bonus shall be
paid in accordance with the standard practices of the Company regarding such
payments as in effect from time to time.
(c) OTHER BENEFITS. The Executive shall be entitled to the regular
benefits and perquisites in place for executives of the Company immediately
prior to the date hereof, except to the extent that a benefit may be reduced in
the future for all applicable executives of the Company with the prior approval
of the Chief Executive Officer.
(d) REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall
reimburse the Executive for all reasonable expenses necessarily incurred by him
in connection with the performance of the Executive's duties hereunder upon
presentation of a voucher indicating the amount and business purpose and
supported by appropriate documentation, subject, however, to the Company's
written employee reimbursement policies and procedures relating to business
related expenses, if any, as in effect from time to time.
4. NON-COMPETE, NON-SOLICITATION.
(n) NON-COMPETE. The Executive covenants and agrees that for such
period as he shall be employed by the Company and, in the event this Agreement
is terminated (other than by Executive pursuant to SECTION 5(g) due to a breach
of this Agreement by the Company),
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whether voluntarily or involuntarily, for a period of twenty-four (24) months
after such termination (the "NONCOMPETE PERIOD"), the Executive will not,
without the prior written consent of the Board, either directly or indirectly
through another Person, whether as principal or as agent, officer, director,
employee, consultant, stockholder, investor (other than as a passive owner of
not more than five percent (5%) of any class of securities traded on a national
or regional stock exchange) or otherwise, alone or in association with any other
Person, carry on, manage, control, consult with, render services for, or be
engaged, concerned or take part in, or render like services to, or own any
interest or share in earnings of any Person competing with the businesses of the
MedVest Entities, as such businesses exist or are in process on the date of such
termination, within any geographical area in which the MedVest Entities engage
at the time of termination in such businesses.
(o) NON-SOLICITATION. During the Noncompete Period, the Executive
shall not directly or indirectly through another Person (i) induce or attempt to
induce any employee of any MedVest Entity to leave the employ of such MedVest
Entity, or in any way interfere with the relationship between any MedVest Entity
and any employee thereof, (ii) hire any person who is an employee of any MedVest
Entity at the time of termination, or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business relation of
any MedVest Entity to cease doing business with any such MedVest Entity, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and any MedVest Entity (including, without
limitation, making any statement which is intended or reasonably calculated to
disparage or discredit any MedVest Entity).
(p) ENFORCEMENT. If, at the time of enforcement of this SECTION 4,
a court shall hold that the duration, scope or area restrictions stated herein
are unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. The Executive acknowledges that the
restrictions contained in this SECTION 4 are reasonable and that he has reviewed
the provisions of this Agreement with his legal counsel.
(q) REMEDIES AND EQUITABLE RELIEF. In the event of the breach or a
threatened breach by the Executive of any of the provisions of this SECTION 4,
the Company, in addition and supplementary to other rights and remedies existing
in its favor, shall be entitled to specific performance and/or injunctive or
other equitable relief from a court of competent jurisdiction in order to
enforce or prevent any violations of the provisions hereof (without posting a
bond or other security). In addition, in the event of a breach or violation by
the Executive of this SECTION 4, the Noncompete Period shall be tolled until
such breach or violation has been duly cured.
5. TERMINATION. Employment of the Executive may terminate for any of
the following reasons.
(a) MUTUAL AGREEMENT. By the mutual, written agreement of the
Company and the Executive.
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(b) DEATH OR DISABILITY. Automatically upon the death or
disability of the Executive. The Executive will be deemed to be "disabled" if
the Board determines in good faith that the Executive is unable to substantially
perform with reasonable accommodation the duties hereunder by reason of
disability or incapacity due to physical or mental illness, for a period in
excess of one hundred eighty (180) consecutive days in any twelve (12) month
period or one hundred eighty (180) days in the aggregate in any twenty-four (24)
month period. The Executive's employment may be terminated by the Company
pursuant to this paragraph only if the Executive does not return to work within
and for a continuous period of at least thirty (30) days after a notice of
termination has been provided to the Executive by the Company.
(c) CAUSE. By the Company at any time for "cause". For purposes of
this Agreement, "CAUSE" shall mean the occurrence of one or more of the
following events in each case as determined by a two-thirds vote of the
disinterested members of the Board in good faith:
(i) the commission of a felony or the commission of any act or
omission involving dishonesty, disloyalty or fraud with respect to
and damaging any of the MedVest Entities;
(ii) chronic drug or alcohol abuse or other repeated conduct
causing any of the MedVest Entities substantial public disgrace or
disrepute or economic harm; or
(iii) the continued failure by the Executive substantially to
perform his duties hereunder (other than as a result of total or
partial disability or incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered to
the Executive by the Company, which demand identifies the manner in
which the Company believes that the Executive has not substantially
performed his duties.
(d) BY EXECUTIVE. By the Executive upon thirty (30) days' written
notice to the Company.
(e) RETIREMENT. Automatically upon the Executive's retirement.
(f) WITHOUT CAUSE. By the Company at any time without cause.
(g) FOR GOOD REASON. By the Executive for Good Reason. For
purposes of this Agreement, "GOOD REASON" shall mean (A) a material adverse
change in connection with the Executive's title or job duties or responsibility;
(B) a material breach by the Company of any material obligation under this
Agreement that is not curable or that is not cured within thirty (30) days after
written notice thereof by the Executive to the Company; (C) relocation from the
present metropolitan area of employment, without the Executive's consent, of the
Executive; or (D) the termination of employment by the Executive at any time
during the forty-five (45) day period after the first anniversary of the
consummation of a transaction or a series of related transactions involving (a)
the sale of eighty percent (80%) or more of the assets (based on their fair
market value) of the Company, (b) any sale to a person not affiliated with a
then current stockholder of voting stock representing more than fifty percent
(50%) of the votes eligible to be cast by stockholders of the Company in the
election of members of the Board of Directors or
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(c) any consolidation, merger or recapitalization of the Company with the same
effect as clause (b) or (c).
6. COMPENSATION UPON TERMINATION.
(a) TERMINATION BY MUTUAL AGREEMENT. In the event that the
Agreement is terminated by the parties pursuant to a written agreement in
accordance with SECTION 5(a), the Executive shall be entitled to receive the
compensation specified in any written agreement between the parties regarding
the termination of Executive's employment.
(b) TERMINATION BY EXPIRATION OF AGREEMENT; ON ACCOUNT OF DEATH;
DISABILITY; FOR CAUSE; OR BY THE EXECUTIVE. In the event the Agreement is
terminated pursuant to SECTIONS 5(b), 5(c), 5(d) or 5(e) the Executive shall not
be entitled to any compensation for any period after termination except for the
continuation of medical coverage as required by law; PROVIDED, HOWEVER, that the
Executive shall be entitled to any Base Salary and any other vested compensation
earned or accrued but not paid to the Executive prior to the termination of this
Agreement; PROVIDED, FURTHER, that in the event the Agreement is terminated
pursuant to SECTION 5(b), the Executive also shall be entitled to the
Executive's Performance Bonus pro-rated for the then current year.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE
FOR GOOD REASON. In the event the Executive's employment is terminated pursuant
to SECTION 5(f) OR 5(g), the Executive shall be entitled to (i) two times base
annual compensation then in effect, (ii) a pro rata portion of Executive's
Performance Bonus for the then current year, calculated at one hundred (100%)
per cent of target, for the period prior to termination, (iii) two times the
Executive's target bonus for the then current year, calculated at one hundred
(100%) per cent of target, and (iv) the continuation of medical insurance
coverage for the Executive and his family, at the Company's expense, for two (2)
years (or, if not permitted, an amount equal to the amount necessary for the
Executive to secure such coverage in the market generally). The payments
required under this SECTION 3(c) shall be payable in twenty-four (24) equal
monthly installments commencing on the last day of the month in which the
Executive shall execute and deliver a release of claims against the Company
containing standard employment release terms reasonably acceptable to the
Company and Executive and shall continue until the earlier of (A) full payment
and (B) a material breach by Executive of any covenant contained in this
Agreement. The obligation of Executive to provide a release under this Section
shall be conditioned upon the willingness of the Company to provide Executive
with a release containing standard employment release terms reasonably
acceptable to Executive.
7. RETENTION BONUS AND NON-COMPETE FEE. The Company shall make an
aggregate cash payment to the Executive of $1,486,250.00. The foregoing cash
payment shall be made as follows (i) in consideration for remaining in the
employment of the Company and entering into this Agreement, $831,937.50 on the
date hereof, $342,562.50 payable on January 1, 2004 and $163,125.00 payable on
January 1, 2005, and (ii) in consideration of the covenants of the Executive set
forth in SECTION 4 above, the Company shall pay $92,437.50 on the date hereof,
$38,062.50 payable on January 1, 2004 and $18,125.00 payable on January 1, 2005.
The payments due the Executive under this SECTION 7 shall be paid (less
applicable withholdings) by wire transfer of immediately available funds to an
account designated by the Executive.
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8. CONFIDENTIAL INFORMATION. The Executive acknowledges that all
Confidential Information is the property of the MedVest Entities. Therefore, the
Executive agrees that he shall not disclose to any unauthorized Person or use
for his own purposes any Confidential Information without the prior written
consent of the Board, unless and to the extent that the Confidential Information
becomes generally known to and available for use by the public other than as a
result of the Executive's acts or omissions or as requested or required by law
or court order (provided that the Executive shall notify the Company promptly of
such request or requirement so that the Company may seek an appropriate
protective order). The Executive shall deliver to the Company at the termination
of his employment hereunder, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes, printouts and
software and other documents and data (and copies thereof) embodying or relating
to the Confidential Information, Work Product (as defined below) or the business
of the MedVest Entities which he may then possess or have under his control.
9. INVENTIONS AND PATENTS. The Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the MedVest Entities' actual business, research and
development or existing or future products or services and which are conceived,
developed or made by the Executive while employed by the Company ("WORK
PRODUCT") belong to the MedVest Entities. The Executive shall promptly disclose
such Work Product to the Board and, at the Company's expense, perform all
actions reasonably requested by the Board (whether during or after the Term) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
10. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
and be binding upon the parties hereto and their respective legal
representatives, heirs, or successors and permitted assigns; PROVIDED, HOWEVER,
that the Executive may not sell, assign, pledge, hypothecate, or otherwise
transfer this Agreement or any part hereof without the prior written consent of
the Company. The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or the assets of the Company to assume expressly and to agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
11. INDEMNIFICATION. To the fullest extent permitted by law, the Company
agrees to, and shall provide in its code of regulations all necessary provisions
so as to cause the Company to, indemnify and hold the Executive harmless against
and from any and all loss, cost, liability or expense that may be imposed upon
or reasonably incurred by him in connection with or resulting from any claim,
action, suit or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act in his capacity as an
officer of the Company during this Agreement. The Company further agrees, at all
times while the Executive remains employed by the Company, to provide reasonable
and adequate coverage for the benefit of the Executive under the Company's D&O
policy provided coverage under such D&O insurance is commercially available and
can be obtained at reasonable cost. The foregoing right of indemnification shall
not be exclusive of any other right to which the Executive may be entitled to as
a matter of law or otherwise, or any power that the Company may have to
indemnify him or hold him harmless, but shall be subject to any applicable
restrictions imposed
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by the code of regulations of the Company from time to time and any applicable
law and shall not apply in respect of any loss, cost, liability or expense that
is found, in a final judgment by a court of competent jurisdiction from which no
appeal can be or has been taken, to have resulted principally from the
Executive's bad faith, gross negligence or willful misconduct.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED UNDER THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO ITS
CONFLICT OF LAWS PROVISIONS.
13. INTERPRETATION. This Agreement is the result of negotiations between
the parties and accordingly, shall not be construed for or against either party
regardless of which party drafted this Agreement or any portion thereof.
14. NOTICES. All notices required or permitted to be given pursuant to
this Agreement shall be in writing and shall be deemed to have been delivered
upon the earlier of personal delivery, or upon first attempted delivery by the
United Postal Service or the overnight carrier if sent by certified mail, return
receipt requested, postage prepaid or by recognized overnight carrier addressed:
(i) in the case of the Company, at its principal office and (ii) in the case of
the Executive, at the last known residence as shown on the Company's records.
15. WAIVER. A delay or failure by either party to require strict
performance by the other party of any undertakings or agreements contained in
this Agreement will not waive, affect or diminish any right of such party
thereafter to demand strict compliance and performance therewith. Any waiver by
either party of any default by the other party under this Agreement will not
waive or affect any other such default, whether such default is prior or
subsequent thereto and whether of the same or a different type.
16. SEVERABILITY. In the event that any provision of this Agreement
shall be held by a court of competent jurisdiction to be invalid, illegal or
unenforceable, it shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein, unless to do so would cause this
Agreement to fail of its essential purpose.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the Company and the Executive with respect
to the terms and conditions of the Executive's employment during the Term and
supersedes all previous agreements and arrangements (if any), oral or written,
relating to the employment of the Executive by the Company (which shall be
deemed to have been terminated by mutual consent). There are no other
agreements, conditions, or representations, oral or written, express or implied
with regard thereto.
18. AMENDMENT OF AGREEMENT. This Agreement may be modified, amended or
rescinded only by means of a writing duly executed by the Company and the
Executive.
19. SURVIVORSHIP. The respective rights and obligations of the parties
hereunder will survive any termination of this Agreement to the extent necessary
to the intended preservation of such rights and obligations.
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20. COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original but which taken together
shall constitute a single agreement between the parties.
21. HEADINGS. The Section headings herein are inserted for convenience
of reference only, do not constitute a part of this Agreement, and shall not be
deemed to limit or affect the meaning or interpretation of any of the provisions
herein.
22. SUCCESSOR-IN-INTEREST. The Executive may designate a Successor (or
Successors) in Interest to receive any and all amounts due the Executive in
accordance with this Agreement should the Executive be deceased at any time of
payment. Such designation of Successor(s) in Interest shall be made in writing
and signed by the Executive. Any such designation may be made to any legal
person, persons, trust or the Executive's estate as he shall determine in his
sole discretion. In the event any designation shall be incomplete, or in the
event the Executive shall fail to designate a Successor-in-Interest, his estate
shall be deemed to be his Successor-in-Interest to receive such portion or all
of the payments due hereunder. The Executive may amend, change or revoke any
such designation at any time and from time to time, in the same manner.
[signature page follows]
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IN WITNESS WHEREOF, the parties have duly executed this Severance and
Non-Compete Agreement as of the date first above written.
MEDEX, INC.
By: /s/ Xxxxxxxx X. Arena
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Name: Xxxxxxxx X. Arena
Title: President and CEO
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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