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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 1st day of July, 1997, by and
between Fresenius Medical Care - North America ("FMC") or the ("EMPLOYER"), with
principal offices located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 and Xxxxx X.
Xxxxxxxxx ("EMPLOYEE") currently residing at 0000 Xxxxxxxxx Xxxx, Xxxxxxx, XX
00000.
WITNESSETH:
WHEREAS, FMC desires to employ EMPLOYEE as Chief Financial Officer of Fresenius
Medical Care - North America ("FMC"), and
WHEREAS, the parties hereto desire to express the terms and conditions of such
employment.
NOW THEREFORE, it is understood and agreed to between the parties as follows:
1. EMPLOYMENT. FMC hereby employs EMPLOYEE as its Chief Financial Officer, and
EMPLOYEE hereby accepts the employment upon the terms and conditions of
this Agreement.
2. TERM. The term of this Agreement shall commence as of the date EMPLOYEE
begins employment at FMC's Lexington, Massachusetts headquarters but no
later than August 18, 1997 and shall continue until the second anniversary
of said date, unless earlier terminated prior thereto in accordance with
the provisions hereinafter stated.
3. DUTIES AND RESPONSIBILITIES.
(a) EMPLOYEE shall serve full-time as FMC's Chief Financial Officer and
will be responsible for all financial functions, including debt management
and bank relationships, all corporate information services and investor
relations. EMPLOYEE shall report directly to the Chief Executive Officer of
FMC and shall also report to the Chief Financial Officer of Fresenius AG on
debt management and investor relations issues. EMPLOYEE shall to the best
of his ability and experience competently, loyally, diligently and
conscientiously perform all of the duties and obligations expressly or
implicitly required under this Agreement. EMPLOYEE further agrees that he
will not in conducting business in the interest of the EMPLOYER engage in,
or knowingly permit others under his control to carry on, or induce others
to engage in any practice or commit acts in violation of any federal, state
or local law or ordinance.
b) EMPLOYEE will be permitted to provide required services to his former
employer, Grancare, until December 31, 1998 provided said services do not
materially interfere with his duties and responsibilities as set forth in
Section 3(a) above.
4. COMPENSATION AND BENEFITS.
a) BASE SALARY. EMPLOYER shall pay EMPLOYEE for all services rendered a
base salary of $325,000 per year, (the "Base Salary"), payable in
accordance with FMC's payroll procedures, subject to customary withholding
and employment taxes.
b) INCENTIVE COMPENSATION. During EMPLOYEE'S employment with FMC, EMPLOYEE
shall be entitled to participate in FMC's Management Bonus Plan ("MBP") and
such other incentive compensation plans as are now available or may become
available to other similarly positioned officers of FMC. For executives,
the target level bonus is forty percent (40%) and the maximum bonus is one
hundred percent (100%) of base salary, pro-rated for the date employment
commences. Funding for the plan is based upon attainment of specific
financial objectives.
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For 1997, EMPLOYEE will have special payment options for incentive
compensation and may elect, within thirty (30) days of the commencement of
employment either,
i) To receive a guaranteed payment of $100,000 when executive
payments are made in 1998, or
ii) To fully participate in the MBP, without pro-ration, for 1997 and
receive payment in 1998 based upon actual funding of the MBP.
Written notice of this election must be sent to Human Resources within
thirty (30) days of commencement of employment.
c) SIGNING BONUS. Provided he begins employment no later than August 18,
1997, within thirty (30) days of the commencement of EMPLOYEE'S employment
he will receive a signing bonus of $75,000 net of applicable taxes and
withholdings,
d) STOCK PLAN. EMPLOYEE shall be entitled to participate in the Fresenius
Medical Care AG 1996 Stock Incentive Plan (the "Stock Plan"), subject to
IRS approval of the Stock Plan. EMPLOYEE shall be recommended to receive
options to purchase 125,000 American Depository shares representing
Preference Shares constituting a three-year grant under that non-qualified
stock plan for employees of Fresenius' United States subsidiaries.
e) BENEFIT PROGRAMS. EMPLOYEE shall be eligible to participate in the
Fresenius USA group employee benefits program as now established or which
subsequently becomes available.
5. Relocation. EMPLOYEE will relocate from Atlanta to the Lexington area
promptly upon commencement of employment. Relocation will be covered under
existing FMC policy and will include all costs of sale of his existing
residence and purchase of a new residence, all costs for packing, moving
and unpacking of household goods, househunting trips for EMPLOYEE and his
wife, travel to and from Atlanta during any transition period, and other
miscellaneous relocation costs. In addition, FMC will guarantee to
reimburse EMPLOYEE for any difference between the sale price of his Atlanta
residence and his purchase price of that property plus any documented
capital improvements. Temporary housing will be provided if needed for up
to six months.
6. TERMINATION OF EMPLOYMENT.
a) TERMINATION BY FMC. Notwithstanding the provisions set forth in
paragraph 2 above, this Agreement may be terminated by FMC for cause
immediately upon notice to EMPLOYEE. FMC shall have cause for termination
in the event of:
1) A default by EMPLOYEE in the performance of any material
provision of this Agreement, and such default continues for a
period of thirty (30) days after written notice to EMPLOYEE from
EMPLOYER stating the specific default, unless such default is
cured to the satisfaction of EMPLOYER within such 30-day period,
or if such failure cannot be cured within 30 days, EMPLOYEE has
commenced a good faith effort to cure in which case EMPLOYER,
within its sole discretion, may extend such period, in which case
the notice of termination shall not be effective, and this
Agreement shall not be terminated. No severance benefits are due
to EMPLOYEE in the event he is terminated for cause.
2) EMPLOYEE'S death.
3) The final, unappealable conviction of EMPLOYEE of any felony.
4) The disability of EMPLOYEE during his employment under this
Agreement through any illness, injury, accident or condition of
either a physical or psychological nature and, as a result in the
opinion of a physician mutually agreeable to the parties is
expected to be unable to perform substantially all of his duties
and responsibilities hereunder for one hundred eighty
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(180) consecutive calendar days during the year following the
physician's examination of EMPLOYEE.
b) TERMINATION BY EMPLOYEE. This Agreement may be terminated by the
EMPLOYEE in the event of a breach by FMC of any of its obligations under
this Agreement, provided EMPLOYEE gives FMC written notice specifying the
manner in which he believes FMC has breached this Agreement, and FMC has 30
days from receipt of such notice to cure such breach, or in the case of
other than a non-payment of money breach, if such breach cannot be cured
within 30 days, to commence a good faith effort to cure.
c) PAYMENT UPON TERMINATION. In the event this Agreement expires or is
terminated for any reason, EMPLOYEE shall be entitled to receive all
accrued but unpaid annual base salary and bonus compensation earned by
EMPLOYEE to the date of termination (all such bonus amounts shall be deemed
earned on a pro rata basis for the portion of the year EMPLOYEE is employed
by FMC prior to termination). In addition, if FMC terminates this Agreement
for any reason other than a reason set forth in Section 6(a) or if the
Agreement expires or if EMPLOYEE terminates this Agreement pursuant to
Section 6(b), EMPLOYEE shall also receive (i) Salary and benefits
continuation for a period of two (2) years following termination of
employment. Employee may elect to receive Salary Continuation as a lump sum
payment but will forego benefits.
9. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee acknowledges that
during the term of employment with EMPLOYER, he will have access to and
become acquainted with Confidential Information of the EMPLOYER.
Confidential Information means all information related to the present or
planned business of FMC that has not been released publicly by authorized
representatives of FMC, and shall include but not be limited to, trade
secrets and know-how, inventions, marketing and sales programs, employee,
customer, patient and supplier information, information from patient
medical records, financial data, pricing information, regulatory approval
and reimbursement strategies, data, operations and clinical manuals.
EMPLOYEE agrees not to use or disclose, directly or indirectly, any
Confidential Information of FMC at any time and in any manner, except as
required in the course of his employment with FMC or with the express
written authority of FMC.
EMPLOYEE understands that his non-disclosure obligations will continue for
10 years following the termination of his employment.
All documents and equipment relating to the business of FMC, whether
prepared by EMPLOYEE or otherwise coming into EMPLOYEE'S possession, are
the exclusive property of FMC, and must not be removed from the premises of
FMC except as required in the course of employment. Any such documents and
equipment must be returned to FMC when EMPLOYEE leaves the employment of
FMC.
10. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement shall constitute the entire
agreement between the parties and supersedes all existing agreements
between them, whether oral or written, with respect to the subject matter
hereof. Any waiver, alteration, or modification of any of the provisions of
this Agreement, or cancellation or replacement of this Agreement shall be
accomplished in writing and signed by the respective parties.
11. NOTICES. All notices hereunder shall be in writing and shall be deemed to
be given when sent by certified mail to either party at the address of such
party set forth above or at such other address as shall have been
designated by written notice by such party to the other party.
13. GOVERNING LAW. This Agreement shall be construed in accordance with, and
the rights of the parties shall be governed by, the laws of the
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by the undersigned duly authorized persons as of the day and year first
stated above.
FRESENIUS MEDICAL CARE - NORTH AMERICA
By /s/ Xxx Xxxxx /s/ Xxxxx X. Xxxxxxxxx
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XXX X. XXXXX XXXXX X. XXXXXXXXX
Its: Chief Executive Officer
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