Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, agreed to in principle and effective January 3,
2006, approved by the Compensation Committee and the Board, and executed
February 22, 2006, by and between DIALYSIS CORPORATION OF AMERICA, a Florida
corporation (the "Company," which term includes subsidiaries and affiliated
companies and entities), and XXXXXXX X. XXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been employed by the Company since November,
1998, and has been actively involved in its 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
-----------
1.1 "Base Rate" shall mean the initial annual base salary for the
Executive of $275,000 commencing on the first date of the Term.
1.2. "Base Salary" shall mean the Base Rate for the initial year of the
Term, and for each subsequent year of the Term shall be the Base Rate
increased by a minimum of $10,000 per year.
1.3 "Board" shall mean the board of directors of the Company.
1.4 "CEO" shall mean the Chief Executive Officer.
1.5 "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 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; or
(e) the Executive's commission of any improper act or conduct that
subjects the Company to disrespect or injures the reputation of the Company.
1.6 "Change in Control" shall mean the occurrence of any of the
following events:
(a) any "person" (as that term is used in Sections 13(d) and
14(d)(2) of the Exchange Act), and any affiliate or associate (as those terms
are defined in Rule 12b-2 of the Exchange Act) of such person, is or becomes
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities representing 50% or more of the
combined voting power of the then outstanding securities of the Company
eligible to vote for the election of the members of the Company's Board
unless (1) such person is the Company or any subsidiary of the Company, (2)
such person is an employee benefit plan (or a trust which is a part of such a
plan) which provides benefits exclusively to, or on behalf of, employees or
former employees of the Company, (3) such person is an underwriter
temporarily holding such securities pursuant to an offering of such
securities, or (4) such person is the Executive, an entity controlled by the
Executive or a group which includes the Executive.
(b) the Current Board changes to a Board the majority of which
consists of persons other than persons (a) for whose election proxies shall
have been solicited by the Current Board, or (b) who are serving as directors
appointed by two-thirds of the directors comprising the Current Board to fill
vacancies on the Board caused by death or resignation or to fill newly
created directorships;
(c) the shareholders of the Company approve any reorganization,
merger, consolidation or share exchange as a result of which the common stock
of the Company shall be changed, converted or exchanged into or for
securities of another corporation (other than a merger with a subsidiary of
the Company); or any dissolution or liquidation of the Company or any sale or
the disposition of 50% or more of the assets or business of the Company,
unless substantially all of the individuals and entities who were beneficial
owners of the Company's outstanding Stock immediately prior to such
occurrence as set forth in this Section 1.6(c), own, directly or indirectly,
more than 50% of the outstanding shares of voting power of the acquiring
company in substantially the same proportion as their ownership of the
outstanding Stock of the Company immediately prior to a Section 1.6(c) Change
in Control;
1.7 "Company" shall mean Dialysis Corporation of America and all of its
current and future subsidiaries and affiliated companies and entities.
1.8 "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.
1.9 "Confidential Information" shall have the meaning as defined in
Section 7.1.
1.10 "Current Board" shall mean all the members of the Board as
constituted on the date of this Agreement.
1.11 "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 1.18, or the Effective Date for a Change in Control, each as the
case may be.
1.12 "Dialysis Corporation of America" shall mean the Company.
1.13 "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 thirteen (13) consecutive weeks as a
result of physical or mental illness or injury.
1.14 "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.
1.15 "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.
1.16 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.17 "Executive" shall mean Xxxxxxx X. Xxxxxxx.
1.18 "Good Reason" shall mean:
(a) any failure by the Company to comply with any provision of
Section 5 of this Agreement other than an isolated, insubstantial, and
inadvertent failure that is not taken 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 taken 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.
1.19 "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.
1.20 "Restricted Activity" shall have the meaning as defined in Section
8.1 of this Agreement.
1.21 "Restricted Period" shall mean the Term and for a period of one (1)
year from the Date of Termination for whatever reason or occurrence.
1.22 "Stock" shall mean the common stock, $.01 par value per share, of
the Company's authorized capital.
1.23 "Term" shall have the meaning as set forth in Section 3.1 of this
Agreement.
1.24 "Third Party" (plural "Third Parties") shall mean any person,
natural or otherwise, firm, corporation, partnership, trust, limited
liability company or similar business entity, other than the Company.
2. EMPLOYMENT
----------
2.1 Employment and Title. The Company hereby continues to employ the
--------------------
Executive as its President and CEO, and the Executive hereby accepts
employment by the Company, upon all the terms and conditions of this
Agreement. Executive shall also serve as a director of the Company so long
as he continues to be elected by shareholders as a director, and the Board
shall propose the Executive for reelection to the Board throughout the Term.
3. TERM
----
3.1 Term. Subject to earlier termination as provided in Section 6, this
----
Agreement shall be for five (5) years commencing on January 3, 2006 and
ending January 2, 2011 (the "Term").
4. DUTIES AND EXTENT OF SERVICES
-----------------------------
4.1 Duties. The Executive shall report directly to the Board. The
------
Executive shall be involved with, responsible for and oversee all of the
Company's operations, and perform such other duties and responsibilities as
may be offered to the Executive from time to time commensurate with his title
and position as described in this Section 4.1, by the Board. During the
Term, the Executive shall also serve in such other offices, directorships and
positions to which he may be appointed by the Board 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 the standards and policies established by the Board.
4.2 Outside Activities. It shall not be considered a violation of the
------------------
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 other 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 organization or entity 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
-----------------
be at the Company's headquarters in Linthicum, Maryland, 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.
5. COMPENSATION AND BENEFITS
-------------------------
5.1 Base Salary. During the first year of the Term, the Company will
-----------
compensate the Executive for the services to be rendered pursuant to this
Agreement with a salary at the Base Rate, and for each subsequent year of the
Term, 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 shall be eligible during the Term to
------------
receive an annual bonus, and the Compensation Committee, or at the discretion
of the Board, which term for purpose of this Section 5.2 is exclusive of the
participation of the Executive, the Board as a whole, shall determine whether
to grant any such bonus in any particular year, and if any such bonus is
determined to be granted in any particular year, such bonus shall be set by
the Compensation Committee, or, at the discretion of the Board, the Board as
a whole. Each such bonus, if any, shall be reasonable in light of the
contributions made by the Executive for such year, and also in relation to
the contributions made and bonuses paid to the other senior Company
executives for such year. Should the Compensation Committee or the Board
determine a bonus is in order and the extent of such bonus, it shall be paid
within ten (10) business days after the Board or the Compensation Committee
makes an informed final determination of the Company's performance against
the business plan for the preceding 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 Restricted Stock. The Executive is granted 10,000 shares of Stock
----------------
which shall be fully vested upon execution of this Agreement by the parties
hereto.
Further, the Executive shall be entitled to receive an additional
maximum of 10,000 shares of restricted Stock each year for the next three
(3) years based on actual Company in-house (not contracted for) dialysis
patients as determined at the end of each calendar year as follows:
(i) an additional 10,000 shares of Stock if the Company's actual
census is no less than 2,000 patients at December 31, 2006;
(ii) an additional 10,000 shares of Stock if the Company's actual
census is no less than 2,500 patients at December 31, 2007; and
(iii) an additional 10,000 shares of Stock if the Company's actual
census is no less than 3,000 patients at December 31, 2008.
To the extent the patient census for any of subparagraphs (i) - (iii) is
less than the minimum patient census required in any of such calendar year,
then the number of shares of Stock to be issued to the Executive for any such
year shall be pro-rated. Such pro-rata determination shall be the maximum
number of shares of Stock to which the Executive would have been entitled for
that calendar year if the full patient census was met, to wit, 10,000 shares
of Stock, multiplied by a fraction (i) the numerator of which is the number
of patients in excess of the base patient census for that particular year,
which base patient census is 1,600 for the year 2006, 2,000 for the year
2007, and 2,500 for the year 2008, and (ii) the denominator is the required
increase over the base patient census for that particular year, i.e., 400
patients for the year ended December 31, 2006 and 500 for each of the years
ended December 31, 2007 and 2008.
By way of illustration only:
Example 1: The Executive would be entitled to 7,500 additional shares of
Stock for calendar year 2006, assuming at December 31, 2006 the Company had
an actual census of 1,900 patients.
1,900 - 1,600 (2006 base) = 300 divided by 400* = 75% x 10,000 shares
(maximum allotted) equals 7,500 shares of Stock.
Example 2: The Executive would be entitled to 6,000 additional shares of
Stock for calendar year 2007, assuming at December 31, 2007 the Company had
an actual census of 2,300 patients.
2,300 - 2,000 (2007 base) = 300 divided by 500* = 60% x 10,000 shares
(maximum allotted) equals 6,000 shares of Stock.
*Required incremental increase in the patient census for that calendar
year.
The additional shares of Stock shall be calculated for each year and to
the extent not fully earned by the Executive for that year, the unearned
shares shall not cumulate to any other year, and shall return to authorized
and unissued capital.
The additional 30,000 shares of Stock or any portion of the same for any
calendar year that has not been completed and for which there has been no
calculation as to the number of shares of Stock earned by the Executive,
either fully or pro-rated, for a particular year, shall accelerate upon the
occurrence of a Change in Control.
Any of the shares of Stock issued or to be issued to the Executive under
this Section 5.3 are "restricted" shares as that term is defined in Rule
144(a)(3) of the Securities Act of 1933, and the Executive shall execute an
investment letter relating to such Shares indicating he is acquiring such
shares of Stock for investment and not with a view to resale; and provided
further, the issuance of up to 40,000 shares of Stock as provided in this
Section 5.3 is subject to and will be effected upon receipt of shareholder
approval.
5.4 Executive Plans. The Executive shall be eligible (subject to the
---------------
terms and conditions of particular plans and programs) to participate in such
medical, hospitalization, group health, 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. 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.
5.5 Other Expenses. 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.
5.6 Vacations. The Executive shall be entitled to normal vacation
---------
taken by other members of senior management during each year of 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 any year of 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
-------------------------
6.1 Basis of and Obligations Upon Termination. Notwithstanding any
-----------------------------------------
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 with the obligations of the Company to the Executive for compensation,
bonuses, expenses and shares of Stock, if any, 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
Executive's estate or legal representative, in a lump sum payment within
forty-five (45) days after 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) one year's 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; (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; and (v) any restricted stock grants as provided
in Section 5.3 hereof, to the extent then earned and vested through the Date
of Termination but not then issued, but no other securities of the Company.
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. Other than vested restricted stock in accordance with
Section
5.3 hereof, the Executive shall not be entitled to receive nor shall there be
any liability of the Company to provide the Executive with any other
restricted or non-restricted Stock, grants, or other securities.
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 1.11 Date of Termination) the sum of the amounts
as provided in subsection 6.1.1, provided, in lieu of one year's Base Salary
as provided in subparagraph (ii) of subsection 6.1.1, it shall be two year's
Base Salary at the Date of Termination.
In addition, upon the occurrence of a Change in Control, the Executive
shall be entitled to each restricted Stock grant of 10,000 shares of Stock as
provided in Section 5.3 for any calendar year not yet completed at the Date
of Termination, irrespective of satisfaction of vesting criteria, which
10,000 share Stock allocations for each year not then completed shall
immediately and automatically vest, all of which restricted Stock grants
shall be provided to the Executive within forty-five (45) days of the Date of
Termination.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
------------------------------------------
7.1 Confidential Information. The Executive understands and
------------------------
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 and its
affiliates; (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 and its affiliates; (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 identities, locations and qualifications of professionals and other Third
Parties presently or prospectively to be retained or employed by the Company;
(v) information concerning the identities, locations, prices, costs, and
other terms of dealings with referral and reimbursement sources, suppliers,
providers, and supplier and provider organizations and entities,
administrative and accounting procedures and policies, and information about
contractual and other arrangements and affiliations with any of the
foregoing; (vi) medical, patient and personal records, existing and
prospective patient lists, names and addresses; (vii) statistical, financial
cost and accounting data; (viii) administrative operations and Company
policies and procedures; and (ix) 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 that
the Executive agrees that the Executive will not, directly or indirectly
(except where authorized by the board
of directors of the Company for the benefit of the Company and/or as required
in the course of his employment), during the Term and thereafter divulge or
disclose for any purpose whatsoever to any Third Party, or use or cause or
authorize any Third Party to use, any such Confidential Information, except
as otherwise required by law.
7.2 The Company's Materials. In accordance with the foregoing, the
-----------------------
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 (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.
7.3 Additional Rights. This Section 7 is intended to provide rights to
-----------------
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
-----------------------
8.1 Non-Competition. In view of the Confidential Information to be
---------------
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 the business, operations, financial
position and management 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, the Executive covenants and agrees that during the
Restricted Period, provided in the event of any violation of this 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, 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
physician or doctor of osteopathy or similar medical professional, now or
hereafter affiliated with the Company or having been affiliated with the
Company in the eighteen (18) months preceding the Date of Termination, 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 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 then
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,
from (i) diverting business from, or (ii) soliciting or enticing or
endeavoring to entice away from or
causing to terminate a relationship with the Company any director, officer,
employee, contractor, reimbursement source, provider, supplier, insuror,
agent, physician, doctor of osteopathy or similar medical professional, or
other Third-Party payor of the Company.
9. PATENTS AND PROPRIETARY RIGHTS
------------------------------
9.1 Ownership of Proprietary Rights. The parties agree that the Company
-------------------------------
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
--------------------------------
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,
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, by his partners, agents, representatives,
servants, employers or employees, affiliates 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
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 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 10 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 delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile as follows:
(i) if to the Executive, to him at c/o Dialysis Corporation of
America, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx, Attention:
Xxxxxxx X. Xxxxxxx (Facsimile No. 410-694-0596); and
(ii) if to the Company, to it at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Chairman (Facsimile
No. 201-288-8208).
14.2 Notices Deemed Given. Notices and communications sent by hand or
--------------------
overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall
be deemed to have been given when sent and receipt has been confirmed by
telephone.
14.3 Change of Address. Any party hereto may change his or its address
-----------------
or facsimile number for notices and other communications hereunder by notice
to each of the other parties hereto in accordance with Section 14.1.
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; provided, however, by
reason of the special and unique nature of the services hereunder, the
Executive acknowledges and agrees that he cannot assign or delegate any of
his rights, duties, responsibilities or obligations hereunder to any other
person or entity.
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 any employment
discrimination dispute and 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 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. WITHHOLDING
-----------
Notwithstanding any other provision of this Agreement, the Company may
withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws or
regulations.
21. NO ALIENATION OF EXECUTIVE'S BENEFITS
-------------------------------------
The rights and benefits of the Executive under this Agreement 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.
22. COUNTERPARTS
------------
This Agreement may be executed in several counterparts, each of which
shall be an original, but both of which together shall constitute one and the
same instrument.
23. INDEMNITY OF THE EXECUTIVE
--------------------------
The Company shall indemnify and hold harmless the Executive from and
against any and all claims, judgments, fines, penalties, liabilities, losses,
costs and expenses (including reasonable attorneys' fees and costs) asserted
against or incurred by the Executive as a result of acts or omissions of the
Executive taken or made in the course of performing his duties and services
for the Company or by reason of the Executive acting or having acted as an
officer of the Company in situations provided in Article XXV of the Company's
By-Laws, even if later amended, and under Article IX(d) of the Company's
Articles of Incorporation, even if later amended, and, to the maximum extent
permitted by law, including Section 607.0850 of the Florida Business
Corporation Act (including the advancement of expense provisions thereof);
provided, however that such indemnity shall not apply to acts or omissions of
the Executive which constitute willful misconduct, gross negligence, or which
were intended by the Executive to improperly personally benefit the
Executive, or were a violation of the criminal law, unless the Executive had
reasonable cause to believe his conduct was lawful or had no reasonable cause
to believe his conduct was unlawful.
[signatures on following page]
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/ Xxxxxx X. Xxxxxxxx
By:--------------------------------
XXXXXX X. XXXXXXXX, Chairman of the
Board
XXXXXXX X. XXXXXXX
By:--------------------------------
XXXXXXX X. XXXXXXX, President and
CEO
