Exhibit 10.21
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, agreed to be entered into and
effective as of October 25, 2002 (the "Effective Date"), by and between XXXXX
MEDICAL CORP., a Delaware corporation (the "Employer"), and XXXXX XXXXX of 00
Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Employee").
The Employer and Employee hereby agree as follows:
1. Term; Duties. The term of this Agreement shall be for the period from the
Effective Date through December 31, 2003 (or earlier, pursuant to paragraphs 6,
7, 14 or 15) (the "Term"). The Term shall be automatically extended for
successive one-year periods unless the Company gives the Employee notice of
termination no later than [two] months prior to the end of the Term. During the
Term, the Employer will employ the Employee, and the Employee will serve the
Employer, as its Executive Vice President, Chief Information Officer, reporting
to its President and subject at all times to the direction of its Board of
Directors and Executive Committee. The Employee's office will be at such office
of the Employer in Connecticut as the Employer may designate. The Employee
agrees that during the Term he will devote his entire working time and give his
best efforts and attention to the business of the Employer. The Employee shall
not be required to perform duties inconsistent with those normally assigned by
the Employer to its executive level employees.
2. Salary. As compensation for his services during the Term, the Employer
will pay the Employee, in installments on the Employer's regular payroll payment
dates and subject to statutory withholding amounts, a salary: for 2003 at the
annual rate of $225,000 plus an inflationary adjustment for any increase during
2002 and thereafter in the Consumer Price Index (or relevant industry data
index, e.g., Connecticut Business Industry Association). The Compensation
Committee of the Board of Directors reserves the right to increase salaries
above such indices.
3. Bonus Compensation. As additional compensation for his services during
the Term, the Employer will pay the Employee such bonus compensation as may
become due to senior executive officers of the Employer under the 2002 Executive
Officers' Bonus Plan of the Employer. The Employee has received a copy of said
Plan. The Employee will, during the Term, be entitled to participate as a senior
executive officer of the Employer under such Executive Officers' Bonus Plan as
the Employer's Board of Directors may adopt for successive years.
4. Vacation; Benefits. The Employee will be entitled to three weeks vacation
during each calendar year in the Term. The Employee has received a list of the
Employer's current benefit plans and policies regarding severance, sick leave
and the like, available or applicable to the Employer's executives, including
the Employee. The Employee acknowledges that said list does not set forth all
material terms and conditions of these plans and policies, and that they are
subject to modification or elimination by the Employer. If a new benefit plan is
made available to officers of the Employer generally, the Employee will be a
participant thereunder.
5. Non-Competition. The Employee covenants and agrees that during the Term,
and until nine months thereafter, he will not, directly or indirectly, engage or
own any interest in any business competing with or planning to compete with any
business or (if the Employee is aware thereof) planned business of the Employer,
whether as principal, agent, partner, director, officer, stockholder, investor,
lender, consultant, employee, or in any other capacity. The Employee agrees that
a remedy at law for any breach or threatened breach of the foregoing covenant
will be inadequate, and that Employer will be entitled to temporary and
permanent injunctive relief in respect thereof without the necessity of posting
a bond or proving actual damage to Employer.
6. Death. The death of the Employee will terminate the Term.
7. Incapacity. If during the Term the Employee is unable, on account of
illness or other incapacity, to perform his duties for a total of more than 45
consecutive or an aggregate of 75 days during any twelve month period, the
Employer has the right to terminate the Term on ten days' written notice to the
Employee, and the Employee will thereafter be entitled to receive only one-half
of his salary installments otherwise payable until the earlier of the last day
of (i) the month-end after the delivery of said notice, or (ii) the Term
(determined without giving effect to such termination).
8. Employer Information. All information and materials disclosed by the
Employer to the Employee or acquired at the Employer's expense by the Employee
or acquired or developed by the Employee in connection with his services under
this Agreement, all trade secrets of the Employer and all Work-Product
(hereinafter defined) (herein collectively "Employer Information") shall be and
remain the sole property of the Employer. The Employee shall protect all
Employer Information which may be in his possession or custody and shall deliver
all such Information (and all copies thereof, in any media) to the Employer at
its request. Notwithstanding the foregoing, Employment Information shall not
include information that the Employee can demonstrate (i) was known to him prior
to the disclosure to him by the Employer, or (ii) was publicly known at the time
of the disclosure or which thereafter became publicly known without fault of the
Employee.
9. Work-Product. All right, title and interest in and to any work product
which the Employee acquires, compiles, authors, invents, makes or otherwise
generates, in whole or in part, including all works authored and all inventions
made, for use in connection with or arising out of or in relation to his
services under this Agreement, whether or not copyrightable or patentable
(herein collectively "Work-Product"), shall belong exclusively to the Employer.
During and after the Term of this Agreement, the Employee shall, execute,
acknowledge, and deliver all documents, including, without limitation, all
instruments of assignment, and perform all acts, which the Employer may
reasonably request to secure its rights hereunder.
10. Confidentiality; Non-use. During and after the Term, the Employee shall
not, without first obtaining the written consent of the Employer, divulge or
disclose to anyone outside the Employer, whether by private or public
communication or publication or otherwise, or use except pursuant to this
Agreement, any Employer Information; however, an incidental non-derogatory
disclosure by the Employee of Employer Information (other than trade secret or
Work Product information) after 18 months following the end of the Term will not
breach this provision.
11. Conflicts of Interest; Conflicting Obligations. The Employee agrees that
it is his responsibility to recognize and avoid, and disclose to the President
of the Employer in writing, any situation which might, either directly or
indirectly, adversely affect his judgment in serving the Employer or which might
otherwise involve a conflict between his personal interests and the interests of
the Employer. The Employee represents and warrants to the Employer that at the
date hereof no such situation exists or is contemplated or anticipated. The
Employee agrees not to disclose or use in the course of his services for the
Employer any trade secret, confidential or proprietary information, or
work-product of any party other than the Employer. The Employee represents and
warrants to the Employer that his entry into and performance of this Agreement
do not and will not conflict with any obligation by which he is or may become
bound or any right of a third party to which he is or may become subject. The
Employee will not serve as a Board member of another company unless he seeks and
obtains the Employer's approval prior to making a commitment to do so.
12. Non-Solicitation. The Employee agrees that, until one year after the
Term, he will not solicit, induce, attempt to hire, or hire any employee of the
Employer, or assist in such hiring by any other party, or encourage any such
employee to terminate his or her employment with the Employer.
13. Stock Option as an Inducement. Not Applicable.
14. Effect of "Change of Control"; Termination; Severance. The Employer or
Employee may terminate the Term on written notice to the other within 30 days
after a "Change of Control" (as defined in Section 3(b) of the Employer's Change
of Control and Change of Position Payment Plan). The Employee has received a
copy of said Plan. The Employee may also terminate the Term on written notice to
the Employer within 30 days after "Change of Position" (as defined in Section
3(c)(ii) of the Plan) occurring within twelve months after a Change of Control.
A termination will be effective 30 days after the delivery of the notice. In the
event of a termination by the Employer, the Employee will be entitled to a
severance payment, under Section 4 of the Plan and subject thereto, in the
amount of 100% of the "Base Amount" (as defined in Section 4 of the Plan). In
the event of a termination by the Employee after a Change of Position within
twelve months of a Change of Control, the Employee will be entitled to a
severance payment, under Section 4 of the Plan and subject thereto, in the
amount of 75% of said Base Amount.
15. Termination. The Employer will have the right to terminate the Term for
cause. However, in the event the Employee's employment is terminated by the
Employer without cause, the Employee will be entitled to receive his salary
payments for 9 (nine) months following the last month of employment, less the
compensation earned and consideration received by the Employee from any
subsequent employment or for otherwise providing services. However, the Employee
will not have an affirmative duty to seek employment not consistent with his
experience (including prior levels of responsibility) and expertise. "Cause"
shall include material breach of this Agreement not cured within 10 days, breach
of fiduciary duty, gross insubordination, willful neglect of duties, habitual
unreliability, personal conduct in material violation of the Employer's policies
or universally accepted good business practices, and other matters of comparable
severity.
16. Governing Law; Etc. This Agreement is governed by the laws of
Connecticut. It represents the entire agreement of the parties and it cannot be
changed except by a writing
signed by the President of the Employer and the Employee. All notices by the
Employee to the Employer under this Agreement shall be delivered to the
President of the Employer.
IN WITNESS WHEREOF, the parties have signed and delivered this
Employment Agreement, effective as of the Effective Date.
XXXXX MEDICAL CORP.
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxxxxx
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XXXXX XXXXX Xxxxx X. Xxxxxx, President & CEO
State of Connecticut
County of Middlesex
I certify that I know or have sufficient evidence that Xxxxx Xxxxx is
the person who appeared before me, and that said person acknowledged that he
signed this instrument and acknowledged it to be his free and voluntary act.
/s/ Xxxxx X. Xxxxxx
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Dated: October 25, 2002 Notary Public for the State of Connecticut
My commission expires Nov. 30, 2004
