EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT is entered into February 25, 2009 and effective
January 1, 2009, as approved by the Compensation Committee and the Board, by
and between DIALYSIS CORPORATION OF AMERICA, a Florida corporation (the
"Company"), and XXXXXX X. XXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been employed by the Company since 1980,
and has been actively involved in certain management, operations, and
performance of services, and the Company desires to continue the employ of
the Executive upon the terms and conditions hereinafter set forth; and
WHEREAS, the Company and the Executive desire to set forth in writing
the terms and conditions of their agreements and understandings with respect
to the Executive's employment by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual and
dependant promises contained herein, and the parties intending to be legally
bound, the Company and the Executive hereby agree to the following terms and
conditions:
1. DEFINITIONS
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1.1 "Base Rate" shall mean the current annual base salary for the
Executive of $170,000, less standard withholdings and authorized deductions.
1.2. "Base Salary" shall mean the Base Rate as may be increased
pursuant to the recommendation of the President and CEO of the Company to and
approved by the Compensation Committee within the compensation philosophy and
objectives of the Company and policies provided for in the Compensation
Committee Charter.
1.3 "Beneficial Ownership" shall have the meaning given to such term in
Rule 13d-3 under the Exchange Act (as defined below); provided, however, that
Beneficial Owner shall exclude any Person (as defined below) otherwise
becoming a Beneficial Owner by reason of the stockholders of the Company
approving a merger of the Company with another entity.
1.4 "Board" shall mean the board of directors of the Company.
1.5 "CEO" shall mean the Chief Executive Officer.
1.6 "Cause" shall mean:
(a) the Executive is convicted of, pleads guilty to, or confesses
or otherwise admits to any felony, misdemeanor (other than a minor
misdemeanor or traffic violation), or any act of fraud, misappropriation or
embezzlement;
(b) any act or omission by the Executive involving dishonesty,
malfeasance or gross negligence in the performance of the Executive's duties
and responsibilities under this Agreement;
(c) any material breach or default by the Executive of any of the
terms and conditions of this Agreement or any provision of any code of
conduct adopted by the Company which
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applies to the Executive if the consequences of such violation ordinarily
would be a termination of his employment by the Company, provided any such
breach, default or failure to perform by the Executive, assuming the same is
not so egregious as could be cured, continues for a period of seven (7) days
following the date of receipt of written notice from the Company specifying
the breach, default, or failure to perform by the Executive;
(d) sanctions against the Executive in his capacity as an employee
of the Company by any regulatory board, agency or commission or against the
Company because of wrongful acts or conduct of the Executive;
(e) the Executive's commission of any improper act or conduct that
subjects the Company to disrespect or injures the reputation of the Company;
or
(f) the Executive terminates his relationship with the Company
without Good Reason.
1.7 "Change in Control" shall mean any one of the following events to
occur after the date of this Agreement:
(a) Acquisition of Stock by Third Party. Any Person (as defined
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below) or Persons acting as a group that is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company's then
outstanding securities eligible to vote for the election of members of the
Board unless such Person is: (i) the Company; (ii) an employee benefit plan
(or a trust which is part of such plan) which provides benefits exclusively
to, or on behalf of, employees or former employees of the Company; (iii) an
underwriter temporarily holding such securities pursuant to an offering of
such securities; or (iv) the Executive, a Person (or Persons) controlled by
the Executive, or a group which includes the Executive;
(b) Change in Board of Directors. During any period of two (2)
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consecutive years (not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period constitute the
Board, and any new director (other than a director designated by a Person who
has entered into an agreement with the Company to effect a transaction
described in subsections (a),(c) or (d)) whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
least a majority of the members of the Board;
(c) Corporate Transactions. The effective date of a merger or
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consolidation of the Company with any other entity, other than a merger or
consolidation which would result: (i) in the voting securities of the
Company, which are outstanding immediately prior to such merger or
consolidation, continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than 50%
of the combined voting power of the voting securities of the surviving entity
outstanding immediately after such merger or consolidation and with the power
to elect at least a majority of the board of directors or other governing
body of such surviving entity; or (ii) any transaction with or on behalf of
an Executive or a Person within the exception as provided in subparagraph
(a)(iv) above;
(d) Liquidation. The approval by the stockholders of the Company
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of a complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets; and
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(e) Other Events. There occurs any other event of a nature that
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would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar schedule or
form) promulgated under the Exchange Act (as defined below), whether or not
the Company is then subject to such reporting requirement.
1.8 "Company" shall mean Dialysis Corporation of America and all of
its current and future subsidiaries and affiliated companies and entities and
their respective successors and assigns.
1.9 "Compensation Committee" shall mean that committee of the Board
established by the Compensation Committee Charter and consisting of those
independent directors responsible for considering the compensation of the
Company's executives together with the other compensation related matters and
policies provided for in the Compensation Committee Charter.
1.10 "Competitive Associate" shall have the meaning as defined in
Section 8.1.
1.11 "Confidential Information" shall have the meaning as defined in
Section 7.1.
1.12 "Current Board" shall mean all the members of the Board as
constituted on the date of this Agreement.
1.13 "Date of Termination" shall mean the date of the Executive's
death, the Disability Effective Date, the date on which the Executive's
employment terminates by expiration of the Term, termination of the Executive
for Cause or without Cause, in each case termination to be effective on the
thirtieth (30th) day from notice by the Company, provided if termination is
by the Company for Cause and the Cause is not so egregious as determined
solely in the good faith of the Board, then seven (7) days from the date of
notice to terminate for Cause for the Executive to cure such Cause and the
Board reasonably and in good faith then determines the Cause continues to
exist, or by the Executive for Good Reason becomes effective in accordance
with Section 1.19, or the Effective Date for a Change in Control, each as the
case may be.
1.14 "Disability" shall mean the Executive's incapacity or inability to
perform the Executive's duties and responsibilities as contemplated by this
Agreement for a period of no less than eight (8) consecutive weeks as a
result of physical or mental illness or injury.
1.15 "Disability Effective Date" shall be the effective date of
termination of the Executive for Disability, which shall be the third
business day after the Company has provided written notice to the Executive
of termination of the Executive's employment for Disability.
1.16 "Effective Date" shall mean either the date which includes the
"closing" (as such term is commonly understood) of the transaction which
makes a Change in Control effective if the Change in Control is made
effective through a transaction which has such a "closing," or the earliest
date a Change in Control is reported in accordance with any applicable law,
regulation, rule or common practice, whichever (the closing or reporting) is
first to occur.
1.17 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.18 "Executive" shall mean Xxxxxx X. Xxxxx.
1.19 "Good Reason" shall mean:
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(a) any failure by the Company to comply with any provision of
Section 5 of this Agreement other than an insubstantial or inadvertent
failure that is not made in bad faith and is remedied by the Company promptly
after receipt of notice thereof from the Executive;
(b) any termination of the Executive's employment by the Company
for a reason or in a manner not permitted by this Agreement;
(c) any other material breach of this Agreement by the Company
that either is not made in good faith or is not remedied by the Company
promptly after receipt of notice thereof from the Executive;
No such act or omission as provided in subparagraphs (a) - (c) of
this Section 1.18 shall be deemed "Good Reason" under this Agreement unless
the Executive delivers to the Compensation Committee (1) a detailed, written
statement of the basis for the Executive's belief that such act or omission
constitutes Good Reason, (2) within a (90) day period which starts on the
date there is an act or omission which forms the basis for the Executive's
belief that Good Reason exists, (3) the Executive gives such Board a thirty
(30) day period after the delivery of such statement to cure the basis for
such belief, and (4) the Executive actually submits the Executive's written
resignation to the Board during the sixty (60) day period which begins
immediately after the end of such thirty (30) day period if the Executive
reasonably and in good faith determines that Good Reason continues to exist
after the end of such thirty (30) day cure period.
1.20 "Inventions" shall mean all patents, patent applications and
other proprietary rights in and to any discovery, concept, idea of any kind
or nature, whether patentable or not, including but not limited to processes,
methods, formulas and techniques, as well as improvements thereon, or know-
how related thereto, concerning anything in the present or prospective
activities of the Company, made, developed or conceived by the Executive
during the Term, whether or not during the hours of employment or with the
use of the Company's name or facilities.
1.21 "Person" shall mean any individual, corporation, company, general
or limited partnership, limited liability company, joint venture, trust, or
other entity, or as set forth in Sections 13(d) and 14(d) of the Exchange
Act.
1.22 "Restricted Activity" shall have the meaning as defined in Section
8.1 of this Agreement.
1.23 "Restricted Period" shall mean the Term and for a period of one
(1) year from the Date of Termination for whatever reason or occurrence,
provided in the event of any violation of Section 8, the Restricted Period
shall be extended by a period of time equal to that period beginning when the
violation commenced and ending when the violation terminated.
1.24 "Stock" shall mean the common stock, $.01 par value per share, of
the Company's authorized capital.
1.25 "Term" shall have the meaning as set forth in Section 3.1 of this
Agreement.
1.26 "Third Party" (plural "Third Parties") shall mean any Person,
other than the Company.
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2. EMPLOYMENT
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2.1 Employment and Title. The Company hereby continues to employ the
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Executive as its Vice President, Finance and Treasurer, and the Executive
hereby accepts such employment by the Company, upon all the terms and
conditions of this Agreement.
3. TERM
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3.1 Term. Subject to earlier termination as provided in Section 6, this
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Agreement shall be for three (3) years commencing on January 1, 2009 and
ending December 31, 2011 (the "Term," which includes any renewal period).
The Term shall automatically renew each year for an additional one (1) year
period, unless either party provides written notice to the other party no
more than 75 days and no less than 20 days prior to the expiration of the
Term, of such party's intent not to renew the Term for another one (1) year
period, and accordingly this Agreement will then terminate at the earlier of
the end of the current Term or the Date of Termination. Any such non-renewal
shall not be deemed a termination of employment under Section 6 of this
Agreement, and accordingly shall not provide for any additional compensation
as otherwise provided under that Section.
4. DUTIES AND EXTENT OF SERVICES
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4.1 Duties. The Executive shall report directly to the President and
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CEO. The Executive shall be involved with and responsible for certain
financial services, including various tax and financial regulatory report
review and preparation services, and perform such other duties and
responsibilities as required of the Executive from time to time commensurate
with his title and position as described in this Section 4.1, by the
President and CEO. During the Term, the Executive shall also serve in such
other offices and positions to which he may be appointed by the President and
CEO for no further consideration except as may be approved by the
Compensation Committee and the Board. The Executive agrees to devote in good
faith his full time, skill, attention, diligence and energy exclusively to
the Company, and shall use his best efforts to be loyal and faithful at all
times, and to exercise his talents and capabilities toward the interests and
operations of the Company. The Executive agrees to perform such duties and
responsibilities in conformity with and observe and abide by the standards
and policies established by the Board.
4.2 Outside Activities. It shall not be considered a violation of the
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foregoing for the Executive to provide assistance and services to charitable,
industry or community organizations, boards and committees, and manage
Executive's personal investments, so long as such activities do not conflict
or interfere with the Company's policies and procedures or the Executive's
performance of his duties under this Agreement and such are adequately
disclosed as required by law. The Executive agrees not to enter into any
other employment agreement during the Term. The Executive shall not serve on
any board of directors or become a trustee of any trust or member of any
partnership or other entity and shall not provide services (whether as an
employee or independent contractor) to any for-profit Third Party; or any
non-profit Third Party, and only as to the latter, involved in any form of
dialysis services (which term throughout this Agreement includes the sale,
lease or use of dialysis equipment, or providing pharmaceuticals or therapies
relating to dialysis and similar services) during the Term absent the written
consent of the Board, which consent shall not be unreasonably withheld.
4.3 Primary Work Site. Executive's primary work site for the Term shall
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be either at the Company's headquarters in Hialeah, Florida office, or other
locations as may be mutually agreed upon by the Executive and the Board.
However, the Executive agrees and undertakes to travel to the extent
necessary, and shall work from such temporary work sites as necessary or
appropriate to fulfill the Executive's duties and responsibilities under the
terms of this Agreement.
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5. COMPENSATION AND BENEFITS
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5.1 Base Salary. During the Term, the Company will compensate the
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Executive for the services to be rendered pursuant to this Agreement with the
Base Salary payable in accordance with the Company's normal payroll
procedures. Base Salary for a portion of any period will be pro rated.
5.2 Annual Bonus. The Executive may be eligible during the Term to
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receive an annual bonus as recommended by the President and CEO to the
Compensation Committee, which Committee shall review and may, at its
discretion, recommend such bonus, as the Committee may adjust, to the Board,
which Board shall determine whether to grant any such bonus in any particular
year. A bonus, if any, shall be reasonable in light of the contributions
made by the Executive to the Company and the overall performance of the
Company and the specific performance of the Executive for such year. Any
such bonus that may have been determined by the Compensation Committee or the
Board to be granted shall only be earned and payable if the Executive remains
actively employed through the end of the fiscal year for which a bonus is to
be paid.
5.3 Executive Plans. The Executive shall be eligible (subject to the
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terms and conditions of particular plans and programs) to participate in such
medical, hospitalization, group health, dental, accident, disability and life
insurance programs and plans, such 401(k) plans, profit sharing, stock
option, incentive compensation and stock purchase plans and such other
employee benefit programs to the same extent such plans and programs are made
generally available by the Company to all of its other similarly-situated
executive employees. The Company may alter, modify, add to or delete its
benefit plans at any time as the Company or its Board may determine, in its
sole judgment, to be appropriate without recourse by the Executive, provided
the same does not single out the Executive. Nothing herein shall be
construed as requiring the Company to establish or continue any particular
benefit plan in discharge of its obligations under this Agreement.
5.4 Other Expenses. In accordance with the Company's reimbursement
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policies, the Company shall reimburse the Executive for his reasonable out-
of-pocket costs and expenses incurred in connection with the performance of
his duties and responsibilities hereunder to the earlier of the expiration of
the Term or termination of employment under Section 6, subject to the
submission by the Executive of appropriate invoices, receipts and other
supporting documentation.
5.5 Vacations. The Executive shall be entitled to normal vacation taken
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by other members of senior management during the Term, during which vacation
periods the Executive's compensation shall be paid in full. Such vacation
time shall not be cumulative from year to year, and the Executive shall not
be entitled to be compensated for any unused vacation during the Term or upon
termination of this Agreement. The periods during which the Executive will
be absent from work shall be determined by the Executive taking into account
the needs of the Company's business.
6. TERMINATION OF EMPLOYMENT
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6.1 Basis of and Obligations Upon Termination. Notwithstanding any
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provisions of this Agreement to the contrary, the Executive's employment and
this Agreement terminates upon the occurrence of any of the following events,
and the obligations of the Company to the Executive for compensation, bonuses
and expenses are as provided in this Section 6.1:
6.1.1 The Executive's Death, Disability, by the Company without
Cause, or by the Executive for Good Reason; upon any such termination the
Company shall pay to the Executive, or in the case of the Executive's death,
to the designated beneficiary, or of there is no such beneficiary, to the
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Executive's estate or legal representative, in accordance with the Company's
normal payroll procedures during the twelve (12) months following the Date of
Termination, the sum of the following amounts: (i) any portion of the
Executive's Base Salary and annual bonus, if any, which were due and payable
but not then paid through the Date of Termination; (ii) twelve (12) months'
Base Salary at the Base Salary at the Date of Termination; (iii) any expenses
which the Executive had already incurred to the Date of Termination and which
would have otherwise been reimbursed but for such termination of employment;
and (iv) any benefits payable under the Company's employee benefit plans,
programs and policies which the Executive otherwise has a nonforfeitable
right to receive under the terms of such plans, programs and policies for a
period of twelve (12) months from the Date of Termination. The Company's
obligation to pay or provide the benefits provided in this subsection 6.1.1
for termination pursuant to Disability shall be reduced by any Disability
payments and benefits received or to be received by the Executive pursuant to
such Disability. Further, the Company's obligation to pay or provide the
benefits provided in this subsection 6.1.1 for termination by the Company
without Cause or by the Executive for Good Reason shall be conditioned upon
the Executive first executing a valid general release and waiver, releasing
the Company, its directors, officers, employees, agents and other
representatives from any and all claims under this Agreement or pursuant to
his employment, in a form reasonably acceptable to the Company.
6.1.2 For Cause; upon termination for Cause, the Company's only
obligation to the Executive under this Agreement shall be to pay in a lump
sum payment within forty-five (45) days after the Date of Termination, the
Executive's Base Salary and annual bonus, if any, which were due and payable
but not yet paid at the Date of Termination, and to reimburse the Executive
for expenses the Executive had already incurred and which would have
otherwise been reimbursed but for such termination of employment. Further,
the Executive shall have the right to receive any benefits payable under the
Company's employee benefit plans, programs and policies which the Executive
otherwise has a nonforfeitable right to receive under the terms of such
plans, programs and policies independent of the Executive's rights under this
Agreement.
6.1.3 Change in Control, but only upon the condition that either the
Executive chooses not to continue in any capacity or affiliation with the
acquiring or surviving company (including its associated or affiliated Third
Parties), or the acquiring or surviving company or any of its associated or
affiliated Third Parties do not wish to continue any affiliation with the
Executive; upon termination for Change in Control, the Company shall pay to
the Executive in a lump sum payment within forty-five (45) days of the
Effective Date (see Section 1.13 Date of Termination) the sum of the amounts
as provided in subsection 6.1.1.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
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7.1 Confidential Information. The Executive understands and
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acknowledges that he has been informed that it is the policy of the Company
to maintain as secret and confidential all non-public information relating to
(i) the financial condition, businesses and interests of the Company; (ii)
the systems, know-how (means all factual knowledge and information which
gives to the one acquiring it an ability to produce and market something
which one otherwise would not have known how to produce and market with the
same accuracy or precision necessary for commercial success), products,
services, costs, inventions, patents, patent applications, formulae, research
and development procedures, notes and results, computer software programs
(including but not limited to object codes and source codes), planning and
development of business and services, and/or programs, methods,
methodologies, manuals, lists, manner and method of operations, and other
trade secrets heretofore or hereafter acquired, sold, developed and/or used
by the Company; (iii) data, plans and projections regarding the locations,
development and expansion of existing and proposed facilities, market
surveys, studies and analyses; (iv) information concerning the administrative
and accounting procedures and policies; (v) medical, patient and personal
records, existing and prospective patient lists, names and addresses; (vi)
statistical, financial
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cost and accounting data; and (vii) all such similar sensitive Company
information, including those items referred to in Section 7.2 (all such
information being hereinafter collectively referred to as "Confidential
Information"); and the Executive further acknowledges that such Confidential
Information is of great value to the Company and, in and by reason and as a
result of the Executive's employment by the Company, the Executive will be
making use of, acquiring and/or adding to such Confidential Information.
Therefore, the Executive understands that it is reasonably necessary to
protect the Company's trade secrets, good will and business interests, and
the Executive agrees that until the Confidential Information becomes publicly
available (other than through a breach by the Executive or by anyone else who
has a legal obligation to maintain confidentiality), the Executive shall (a)
hold and safeguard all Confidential Information in trust for the Company; (b)
not appropriate or disclose or make available to any Third Party for use
outside of the Company's organization at any time, either during the Term or
subsequent to the termination of employment with the Company for any reason,
any Confidential Information, whether or not developed by the Executive,
except as required in the performance of the Executive's duties to the
Company; (c) keep in strictest confidence any and all Confidential
Information; (d) not disclose or divulge, or allow to be disclosed or
divulged by any Person within the Executive's control, to any Third Party, or
use, directly or indirectly, for the Executive's own benefit or the benefit
of any Third Party, any Confidential Information; and (e) for the
consideration as set forth in Section 8.1 below, for the 12 month period
after the termination of his employment for any reason (voluntarily or
involuntarily), not become employed by or enter into service with any Third
Party in which the Executive will be obligated to disclose or use any
Confidential Information, or where such disclosure would be inevitable
because of the nature of the position. Should the Executive be required by
law to disclose any Confidential Information, the Executive, prior to any
such disclosure, shall notify the Company in writing of such legal
requirement for disclosure of Confidential Information in order to provide
the Company with a reasonable period of time to obtain a protective order.
7.2 No Advice Concerning Confidential Information. The Executive agrees
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that he will not provide advice to any Third Party concerning Confidential
Information. The Executive acknowledges that if he were to provide advice to
any Third Party concerning the negotiation of any agreements with the Company
or if he were to negotiate any agreements on behalf of any Third Party with
the Company, such advice and/or negotiations would involve the inevitable
disclosure of Confidential Information.
7.3 Compliance. The Executive shall confirm in writing that he is
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complying with the terms of this Section 7 in response to any inquiry by the
Company.
7.4 The Company's Materials. In accordance with the foregoing, the
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Executive agrees that (i) the Executive will at no time retain or remove from
the premises of the Company any Confidential Information as well as but not
limited to any research and development materials, drawings, notebooks,
notes, reports, formulae, samples, prototypes, software programs or discs or
other containers of software, manuals, data, books, records, materials or
documents of any kind or description, whether in writing, audio, video or any
other format for any purpose unconnected with the strict performance of the
Executive's duties with the Company and that such materials and Confidential
Information are, shall be, and remain the property of the Company; and (ii)
upon the Date of Termination for any reason, or earlier upon the Company's
request, the Executive shall forthwith deliver or cause to be delivered up to
the Company any and all research and development materials, drawings,
notebooks, notes, reports, formulae, software programs or discs or other
containers of software, manuals, data, books, records, materials and other
documents and materials of any kind or description, whether in writing,
audio, video or any other format, in the Executive's possession or under the
Executive's control relating to any Confidential Information or any property
or information which is otherwise the property of the Company.
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7.5 Additional Rights. This Section 7 is intended to provide rights to
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the Company which are in addition to, not in lieu of, those rights the
Company has under the common law or applicable statutes for the protection of
Confidential Information.
8. COVENANT NOT TO COMPETE
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8.1 Non-Competition. In view of the Confidential Information to be
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obtained by or disclosed to the Executive, because of the know-how acquired
and to be acquired by the Executive and based on the Executive's position
with the Company, the Executive is, and is expected to continue to be during
the Term, intimately involved with certain significant aspects of the
business, operations, , financial position, tax preparation and regulatory
financial reporting of the Company, wherever the Company operates or may
operate, and this Section 8 is intended to provide fair and reasonable
protection to the Company, and as a material inducement to the Company to
enter into this Agreement, and specifically for the (i) compensation and
benefits provided to the Executive under Section 5 of this Agreement, and
(ii) Base Salary and other compensation provided for the Executive upon
termination of employment in accordance with Section 6 of this Agreement, the
Executive covenants and agrees that during the Restricted Period, the
Executive will not engage in Restricted Activity as defined below.
"Restricted Activity" shall mean any participation or involvement,
direct or indirect, whether by the Executive himself or with or through any
Third Party or in association or affiliation, direct or indirect, with any
officer, director, employee, physician, doctor of osteopathy, nurse
(practical, registered or otherwise, hereinafter collectively referred to as
"nurse") or similar medical professional, now or hereafter affiliated with
the Company or having been affiliated with the Company in the twelve (12)
months preceding the Date of Termination (collectively "Competitive
Associate"), either as an officer, director principal, agent, joint venturor,
proprietor, shareholder (other than ownership of less than five (5%) percent
of the issued and outstanding stock of a public company so long as the
Executive is a passive investor and is not otherwise involved in such company
in any way), employee, creditor, independent contractor, subcontractor,
administrator, consultant, advisor, lender or investor, or otherwise, in or
for any Third Party business or operation which is engaged or to be engaged
in operations or business or providing services, in whole or in part, which
is or is to be competitive with the operations and/or business of, or with
the services provided by, the Company within a twenty-five (25) mile radius
of the Company's current and future dialysis facilities and other related or
affiliated or associated operations or businesses during the Restricted
Period. In addition, Restricted Activity shall include the prohibition of
the Executive, directly or indirectly, whether by himself or with, through or
on behalf of any other Third Party or Competitive Associate, from (i)
diverting business from the Company; (ii) soliciting or enticing or
endeavoring to entice away from or causing to curtail or terminate an
affiliation or relationship with the Company any Competitive Associate,
contractor, reimbursement source, provider, supplier, insuror, agent, or
other Third-Party payor of or any Third Party under contract with the
Company; (iii) inducing any patient or customer of the Company, either
individually or collectively, to patronize any competing dialysis facility;
(iv) requesting or advising any patient, customer or supplier of the Company
to withdraw, curtail or cancel such person's business with the Company; or
(v) entering into any contract the purpose or result of which would primarily
and significantly benefit the Executive if any patient of the Company were to
withdraw, curtail or cancel such person's relationship with the Company.
Notwithstanding the above, the fact that a Third Party with whom the
Executive works or consults for, hires a Competitive Associate shall not be
deemed a violation of this Agreement so long as the Executive was not
involved in the hiring process or recommended that the Third Party hire the
Competitive Associate. Further, Restricted Activity does not include any act
or conduct by the Executive which complies with his duties as provided in
this Agreement and which is in the best interest of the Company, and not
detrimental or otherwise competitive with the operations and affairs of
management and the Company as provided in this Section 8.
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9. PATENTS AND PROPRIETARY RIGHTS
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9.1 Ownership of Proprietary Rights. The parties agree that the Company
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shall have and be the owner of all Inventions and all records, documents,
notes and information, oral, in writing, or any other form, including but not
limited to disc, audio, tape or video, relating to such Inventions shall be
owned and be the property of the Company. The Company and the Executive
shall promptly and diligently prosecute patents, patent applications,
proprietary and other similar rights protecting any products or processes
developed pursuant to or during the Term and do all acts necessary for
obtaining, sustaining, reissuing, defending or extending any such patent,
proprietary or similar right.
9.2 Assignment of Proprietary Rights. To the extent necessary, the
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Executive hereby assigns and agrees to assign to the Company all of his
rights to such Inventions and to applications for United States and/or
foreign Letters Patent granted upon such Inventions and the Executive shall
acknowledge and deliver to the Company, without charge to the Company, any
such written instruments and do such other acts as may be necessary to vest
the entire rights and title thereto to the Company.
To the extent a patent or similar right is obtainable only in the
Executive's name, the Executive agrees to assign exclusive world wide
licenses and rights to license the patent to the Company for no additional
compensation. The Executive shall inform the Company promptly and fully of
such Inventions by a written report, setting forth in detail the procedures
employed and the results achieved.
10. THE COMPANY'S REMEDIES FOR BREACH OF SECTIONS 7, 8 AND 9
--------------------------------------------------------
10.1 Recovery of Profits and Equitable Relief. The Executive covenants
----------------------------------------
and agrees that if he shall violate or breach any of his covenants or
agreements provided for in Sections 7 to 9 of this Agreement, the Company
shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration or benefits which the Executive, his
partners, agents, representatives, servants, employers or employees,
affiliates, Competitive Associates, and/or by any Third Party with whom he
has a relationship, directly or indirectly, has realized or realizes as a
result of, growing out of or in connection with any such violation or breach.
In addition, in the event of a breach or violation or threatened or imminent
breach or violation of any provision of Sections 7 to 9 of this Agreement,
the Company shall be entitled to a temporary and permanent injunction or any
other appropriate decree of specific performance or equitable relief, without
posting of bond, from a court of competent jurisdiction in order to prevent,
prohibit or restrain any such breach or violation or threatened or imminent
breach or violation by the Executive, his partners, agents, representatives,
servants, employers or employees, affiliates, Competitive Associates, and/or
by any Third Party with whom he has a relationship, direct or indirect. The
Company shall be entitled to such injunctive or other equitable relief in
addition to any costs and damages which are suffered. Resort by the Company
to such injunctive or other equitable relief shall not be deemed to waive or
to limit in any respect any other rights or remedies which the Company may
have with respect to such breach or violation.
11. REASONABLENESS OF RESTRICTIONS
------------------------------
11.1 Reasonableness. The Executive acknowledges that any breach or
--------------
violation of Sections 7 through 9 of this Agreement will cause irreparable
injury and damage and incalculable harm to the Company and that it would be
very difficult or impossible to measure the damages resulting from any such
breach or violation. The Executive further acknowledges that he has
carefully read and considered the provisions of Sections 7 through 9 of this
Agreement and, having done so, agrees that the restrictions and remedies set
forth in such Sections (including, but not limited to, the time period,
geographical and types of restrictions imposed) are fair and reasonable and
are reasonably required for the protection of the
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business, trade secrets, Inventions, Confidential Information, and other
interests and good will of the Company.
11.2 Severability. The Executive understands and intends that each
------------
provision and restriction agreed to by him in Sections 7 through 9 of this
Agreement shall be construed as separate and divisible from every other
provision and restriction and that, in the event that any one of the
provisions of, or restrictions in Sections 7 through 9 of this Agreement
shall be held to be invalid or unenforceable, the remaining provisions
thereof and restrictions therein shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable provisions or restrictions
had not been included therein, and any one or more of such valid provisions
and restrictions may be enforced in whole or in part as the circumstances
warrant. In the event that any such provision relating to time period and/or
geographical and/or type of restriction shall be declared by a court (which
term includes an arbitration panel) of competent jurisdiction to exceed the
maximum or permissible time period, geographical area or type of restriction
and such court modifies such time period and/or geographical and/or type of
restriction as such court deems reasonable and enforceable, said time period
and/or geographical and/or other type of restriction to become and shall
thereafter be the maximum time period and/or geographical restriction and/or
type of restriction which such court deems reasonable and enforceable.
11.3 Survivability. The restrictions, acknowledgements, covenants and
-------------
agreements of the Executive set forth in Sections 7 through 11 of this
Agreement shall survive any Date of Termination for any reason, including
expiration of the Term, for the specific periods, if any, provided in those
Sections.
12. ACKNOWLEDGEMENT
---------------
12.1 Each Party Has Its Own Counsel. The Company and the Executive
------------------------------
agree that each of them have been, or were advised and fully understand that
they have had an opportunity to fully discuss and review the terms of this
Agreement with independent legal counsel with respect to all matters
contemplated herein, from the commencement of negotiations at all times
through the execution of this Agreement. Each party further represents that
it and he has carefully read this Agreement, fully understands the contents
herein, freely and voluntarily asserts to all of the terms and conditions
hereof. Each party is responsible for its own expenses in negotiating and
entering into this Agreement.
13. LAW APPLICABLE
--------------
13.1 Maryland Law. This Agreement shall be governed by and construed
------------
pursuant to the laws of the State of Maryland.
14. NOTICES
-------
14.1 Notice. All notices, requests, demands and other communications
------
provided for in this Agreement shall be in writing and shall be deemed
effectively given: upon personal delivery to the party to be notified; (ii)
when sent by confirmed electronic mail or facsimile if sent during normal
business hours of the recipient, and if not so confirmed, then on the next
business day (iii) three (3) business days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or
(iv) one (1) business day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent:
(a) To Executive: Xxxxxx. X. Xxxxx
00000 X.X. Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
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(b) To Company: Dialysis Corporation of America
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, President & CEO
(c) cc: Company Counsel Xxxxx & Xxxx, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other address as may have been furnished to the Executive by the
Company or to the Company by the Executive, as the case may be prior to the
date of the notice being sent.
15. SUCCESSION
----------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective legal representatives, heirs, assignees
and/or successors in interest of any kind whatsoever.
16. ENTIRE AGREEMENT
----------------
This Agreement constitutes the entire final agreement between the
parties with respect to, and supersedes any and all prior agreements between
the parties hereto, oral or written, concerning the subject matter hereof and
may not be amended, modified or terminated except in writing signed by the
parties hereto.
17. SEVERABILITY
------------
If any provision of this Agreement shall be held to be invalid or
unenforceable, and is not reformed by an arbitrator or a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision and shall not in any way affect or render invalid or unenforceable
any other provision of this Agreement, and this Agreement shall be carried
out as if such invalid or unenforceable provision were not contained herein.
18. NO WAIVER
---------
The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
A waiver of any breach or violation of any term, provision or covenant
contained herein shall not be deemed a continuing waiver or a waiver of any
future or past breach or violation. No oral waiver shall be binding.
19. ARBITRATION
-----------
The Executive and the Company will submit to mandatory binding
arbitration any controversy or claim arising out of, or relating to, this
Agreement or any breach hereof, including without limitation the
arbitrability of this Agreement; provided, however, that each party will
retain its right to, and shall not be prohibited, limited or in any other way
restricted from, seeking or obtaining equitable relief (such as injunctive
relief) from a court having jurisdiction over the parties. Any such
arbitration shall be
conducted in Hackensack, New Jersey, the area in which the Company maintains
its New Jersey executive offices, before a single arbitrator in accordance
with the employment dispute arbitration rules of the American Arbitration
Association then in effect, and judgment upon the determination or award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator will have the authority to award costs and expenses
to the prevailing party.
20. NO ALIENATION OF EXECUTIVE'S BENEFITS
-------------------------------------
The rights and benefits of the Executive under this Agreement are
special and unique in nature and may not be assigned, alienated, or subject
to attachment, garnishment, levy, execution, or other legal or equitable
process except as required by law. Any attempt by Executive to alienate,
assign, sell, transfer, pledge, encumber or charge the same shall be void.
Payments thereunder shall not be considered assets of the Executive in the
event of insolvency or bankruptcy.
21. COUNTERPARTS
------------
This Agreement may be executed in several counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
22. HEADINGS
--------
The Section headings of this Agreement are intended for convenience only
and shall not be deemed to constitute part of this Agreement or to affect its
construction.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization of its Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and
year first above written.
DIALYSIS CORPORATION OF AMERICA
/s/ Xxxxxxx X. Xxxxxxx
By: ----------------------------
XXXXXXX X. XXXXXXX, President and CEO
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
By:-----------------------------
XXXXXX X. XXXXX, Vice President,
Finance and Treasurer
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