EMPLOYMENT AGREEMENT
Ex
– 10(b)(i)+
EMPLOYMENT AGREEMENT dated
December 10, 2009, and effective as of January 1, 2010, between AMERICAN MEDICAL
ALERT CORP., a New York corporation (the "Company"), with offices located at
0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 and Xxxxxx X. Xxxxxx, an
individual having an address at 000 Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxx Xxxx
00000 ("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires
to continue to retain the services of Employee upon the terms and conditions
stated herein; and
WHEREAS, Employee desires to
be employed by the Company upon the terms and conditions stated
herein.
NOW, THEREFORE, in
consideration of the mutual covenants, conditions and promises contained herein,
the parties hereby agree as follows:
1. Employment
At-Will. The Company and Employee acknowledge and agree that
Employee’s employment with the Company is that of an “at will
employee”. As such, either Employee or the Company may terminate the
employment relationship at any time, for any reason or for no reason, such
termination to take effect 90 days following written notice to the other
party. Employee has received no promise of continued employment or
employment for any specific period of time, and no employee of the Company,
including without limitation the Company's officers, has the authority to alter
the at-will nature of the employment relationship except in a written employment
contract signed by an authorized Company executive and by Employee.
2. Duties.
(a) Senior
Advisor. Employee shall serve as Senior Advisor to, and shall
report to, the Chief Executive Officer and President of the Company
{the “CEO”). In such capacity, Employee will render advisory or
consultative services related to the Company’s strategic position, plans,
prospects and objectives, or such other matters, all as specified by the
CEO. Such services shall be rendered based upon discussions and input
between Employee on the one hand, and the CEO on the other hand, and may
include, without limitation, traveling, attendance at meetings or participation
in conference calls, all as directed by the CEO. Employee shall have
no authority to enter into any contracts or to otherwise bind the Company,
except as expressly agreed to between Employee on the one hand, and the CEO on
the other hand. The Company and Employee agree that Employee may
provide the services described herein either remotely (e.g., offsite) or at the
Company's current location in Oceanside, Long Island.
(b) Chairman of the Board Position.
Nothing in this Agreement shall be deemed to relate to Xx. Xxxxxx’x
current position as Chairman of the Board of Directors (the “Board”) of the
Company, however, any compensation for such position and his position as a
member of the Board shall be deemed to be included within the compensation
payable to him under this Agreement.
3. Hourly
Commitment.
(a) During
the term of this Agreement, Employee shall devote such hours to the performance
of his services as requested by the CEO but Employee shall not be required to
devote more than 70 hours per month to such
services.
(b) The
foregoing shall not prevent (i) subject to paragraph 6 below, the purchase,
ownership or sale by Employee of investments or securities of publicly held
companies and any other business that is not competitive with the Company or any
subsidiary of the Company so long as such investment does not interfere or
conflict with the performance of Employee 's duties hereunder and does not
otherwise violate any of the provisions of this Agreement, or (ii) Employee's
participation in philanthropic organizations to the extent that such
participation does not interfere or conflict with the performance of Employee’s
duties hereunder and does not otherwise violate any provision of this
Agreement.
4. Compensation. In
consideration of the duties and services to be performed by Employee hereunder,
the Company agrees to pay, and Employee agrees to accept the amounts set forth
below:
(a) A
base salary, to be paid on a bi-weekly basis, at the rate of $125,000 per annum,
for the period beginning January 1, 2010 and ending upon the effective date of
termination of Employee’s employment relationship with the Company.
(b) The
Company shall provide Employee with the use of a suitable automobile leased by
the Company, including any insurance costs, with all reasonable expenses of
operation such as, gas, oil and repair properly incurred by him in the
performance of his duties hereunder reimbursed by the Company in accordance with
the Company's normal policies for all reasonable travel, hotel, meal and other
expenses. Any request for reimbursement must be submitted to and
approved by, the Company's Chief Financial Officer, whose decision to approve or
disapprove a reimbursement shall be subject to review by the Company's audit
committee.
(c) The
Company will reimburse Employee for the cost of Employee’s U.S. Medicare
coverage at the then current rate (including Parts B and D) so as to provide him
with coverage equivalent or as nearly equivalent as possible under Medicare to
the coverage he would have had under the Company’s then-current medical plan as
provided to executive officers of the Company; provided, that
Employee shall be responsible for payment of a percentage of such cost equal to
the then current contribution percentage required to be paid by executive
officers of the Company for medical insurance premiums.
Upon the
effective date of termination of Employee’s employment relationship with the
Company, the Company shall have no liability or obligation to Employee,
including, without limitation, any liability or obligation for severance, other
than for the base salary and any other compensation provided in this paragraph 4
accrued to the effective date of termination.
2
5. Vacation. Employee
shall be entitled to four (4) weeks vacation each fiscal year, to be taken at
such time as is mutually convenient to the Company and Employee.
6. Non-Competition,
Non-Solicitation and Non-Disclosure. 1) Employee covenants and
agrees that throughout the term of this Agreement and for a period of twelve
(12) months thereafter, he will not, directly or indirectly, own, manage,
operate or control, or participate in the ownership, management, operation or
control of, any business competing directly in the United States of America with
the business conducted by the Company or any subsidiary of the Company during
the term of this Agreement; provided, however, that
Employee may own not more than 5% of the outstanding securities of any class of
any corporation engaged in any such business, if such securities are listed on a
national securities exchange, the NASDAQ Stock Market or regularly traded in the
Over the Counter market by a member of a national securities
association.
(b) Employee
covenants and agrees that, (i) throughout the term of this Agreement, he will
not directly or indirectly solicit, entice or induce any person (collectively,
“Solicit”) who during the term of this Agreement is associated with, employed by
or is a customer of the Company or any subsidiary, and (ii) for a period of
twelve (12) months following the term of this Agreement, he will not Solicit any
person who is, or within the last three months of Employee's employment by the
Company was, associated with, employed by, or was a customer of the Company or
any subsidiary of the Company, in each case, to leave the employ of, terminate
his association or its relationship with the Company, or any subsidiary of the
Company, or solicit the employment or business of any such person on his own
behalf or on behalf of any other business enterprise.
(c) Employee
covenants and agrees that, throughout the term of this Agreement and at all
times thereafter, he will not use, or disclose to any third party, trade secrets
or confidential information of the Company, including, but not limited to,
confidential information or trade secrets belonging or relating to the Company,
its subsidiaries, affiliates, customers and clients or proprietary processes or
procedures of the Company, its subsidiaries, affiliates, customers and clients,
or the Company’s or its subsidiaries’ business, business plans, investments,
customers, strategies, operations, records, financial information, assets,
technology, data and information that reveals the processes, methodologies,
technology or know-how of the Company or its subsidiaries. Trade
secrets and confidential information shall include, but shall not be limited to,
all information which is known or intended to be known only by employees of the
Company, its respective subsidiaries and affiliates or others in a confidential
relationship with the Company or its respective subsidiaries and affiliates
which relates to business matters.
(d) If
any term of this paragraph 6 is found by any court having jurisdiction to be too
broad, then and in that case, such term shall nevertheless remain effective, but
shall be considered amended (as to the time or area or otherwise, as the case
may be) to a point considered by said court as reasonable, and as so amended
shall be fully enforceable.
3
(e) In
the event that Employee shall breach or threaten to breach any provision of this
Agreement (including but not limited to the provisions of this paragraph 6),
then Employee hereby consents to the granting of a temporary or permanent
injunction against him by a court of competent jurisdiction prohibiting him from
violating any provision of this Agreement. In any proceeding for an
injunction and upon any motion for a temporary or permanent injunction, Employee
agrees that his ability to answer in damages shall not be a bar or interposed as
a defense to the granting of such temporary or permanent injunction against
Employee. Employee further agrees that the Company will not have an
adequate remedy at law in the event of any breach or threatened breach by
Employee hereunder and that the Company will suffer irreparable damage and
injury if Employee breaches any of the provisions of this
Agreement.
7. No
Impediments. Employee warrants and represents that he is free
to enter into this Agreement and to perform the services contemplated thereby
and that such actions will not constitute a breach of, or default under, any
existing agreement.
8. No
Waiver. The failure of any of the parties hereto to enforce
any provision hereof on any occasion shall not be deemed to be a waiver of any
preceding or succeeding breach of such provision or of any other
provision.
9. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and no amendment, modification or waiver of any provision herein shall be
effective unless made in writing, executed by the party charged
therewith. Amendments, modifications and waivers may not be effected
by e-mail or similar correspondence (other than e-mail delivery of a signature
page by “.pdf” format data file). The parties hereto further
acknowledge and agree that the certain Employment Agreement dated as of December
13, 2006 between the parties hereto expires on December 31, 2009, and that upon
such expiration: (i) such agreement shall be null and void and of no further
force or effect, and (ii) that all of the parties' obligations under such
agreement shall be extinguished in full.
10. Governing
Law. This Agreement shall be construed, interpreted and
enforced in accordance with and shall be governed by the laws of the State of
New York applicable to agreements to be wholly performed therein, other than
those which would defer to the substantive laws of another
jurisdiction.
11. Binding
Effect. This Agreement shall bind and inure to the benefit of
the parties, their successors and assigns.
12. Assignment and Delegation of
Duties. This Agreement may not be assigned by the parties
hereto except that the Company shall have the right to assign this Agreement to
any successor in connection with a sale or transfer of all or substantially all
of its assets, a merger or consolidation. This Agreement is in the
nature of a personal services contract and the duties imposed hereby are
nondelegable.
4
13. Paragraph
Headings. The paragraph headings herein have been inserted for
convenience of reference only and shall in no way modify or restrict any of the
terms or provisions hereof.
14. Notices. Any
notice under the provisions of this Agreement shall be in writing, shall be sent
by one of the following means, directed to the address set forth on the first
page of this Agreement or to such other address as shall be designated hereunder
by notice to the other party, effective upon actual receipt and shall be deemed
conclusively to have been given: (i) on the first business day following the day
timely deposited for overnight delivery with Federal Express (or other
equivalent national overnight courier service) or United States Express Mail,
with the cost of delivery prepaid or for the account of the sender; (ii) on the
fifth business day following the day duly sent by certified or registered United
States mail, postage prepaid and return receipt requested; or (iii) when
otherwise actually received by the addressee on a business day (or on the next
business day if received after the close of normal business hours or on any
non-business day).
15. Unenforceability;
Severability. If any provision of this Agreement is found to
be void or unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall, nevertheless, be binding upon the parties
with the same force and effect as though the unenforceable part has been severed
and deleted.
16. Counterparts. This
Agreement may be executed in one or more counterparts and delivered by facsimile
or by e-mail delivery of a “.pdf” format data file, each of which shall
constitute an original, and which when taken together, shall constitute one and
the same agreement. E-mail or similar correspondence (other than
e-mail delivery of a signature page by “.pdf” format data file) shall not
constitute a signature for purposes of this Agreement.
17. Advice of Independent
Advisors. Employee acknowledges that he has had the
opportunity to review the terms of this Agreement with his independent advisors,
including attorneys, accountants and compensation consultants.
5
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date first
above written.
|
EMPLOYEE:
|
||||
|
By:
|
/s/ Xxxxxx X. Xxxxxx
|
|||
|
Xxxxxx
X. Xxxxxx
|
||||
|
COMPANY:
|
||||
|
By:
|
/s/ Xxxx Rhian
|
|||
|
Name:
|
Xxxx
Rhian
|
|||
|
Title:
|
Chief
Executive Officer and
President
|
|||
6
