1
Exhibit 10.9
EMPLOYMENT AGREEMENT
AGREEMENT by and between Maxxim Medical, Inc., a Texas corporation
(the "Company"), and Xxxx X. Xxxxxxx (the "Executive"), dated as of the 13th
day of July, 2000.
WHEREAS, the Company has determined to secure the services of the
Executive as provided for below, and the Executive desires to secure employment
with the Company as provided for below.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment Period. The Company shall employ the Executive,
and the Executive shall serve the Company, on the terms and conditions set
forth in this Agreement, for the period commencing on July 13, 2000 (the
"Effective Date"), and ending on October 31, 2003 (the "Employment Period");
provided, however, that commencing on October 31, 2003 and on each annual
anniversary of such date (October 31, 2003 and each annual anniversary thereof
shall hereinafter be referred to as the "Renewal Date"), unless previously
terminated, the Employment Period shall be automatically extended so as to
terminate one year from the applicable Renewal Date, unless 180 days prior to
such Renewal Date the Company or the Executive shall terminate this Agreement
by giving written notice to the other party that the Employment Period shall
not be so extended; provided further, however, that the Company shall be under
no obligation to extend the Employment Period if the Executive fails to provide
the Company with at least 210 days prior written notice of the upcoming
expiration of the Employment Period.
2. Position and Duties. (a) The Executive shall serve as Vice
Chairman and Chief Financial Officer of the Company, reporting to the Chief
Executive Officer and the Board of Directors of the Company (the "Board"), with
such duties and responsibilities as are customarily assigned to such position,
and such other duties and responsibilities not inconsistent therewith as may be
assigned to the Executive from time to time by the Company. In addition,
pursuant to the Services Agreement by and among the Company, Maxxim Medical
Group, Circon Holdings Corp. ("Circon Holdings") and Circon Corporation, the
Executive during the Employment Period and any extensions thereto in accordance
with this Agreement, to the extent so requested by the Company, shall perform
services for Circon Holdings and its subsidiaries (including, without
limitation, serving as Vice Chairman and Chief Financial Officer of Circon
Holdings). The Executive shall become a member of the Board and serve as Vice
Chairman of the Board and become a member of the Board of Directors of Circon
Holdings during the Employment Period.
(b) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote his full business time and efforts to the business and
affairs of the Company and Circon Holdings and its subsidiaries to the extent
requested by the Company and use his best efforts to carry out such
responsibilities faithfully and efficiently. During the Employment Period, the
Executive shall not
2
be engaged in any (other business activity other than with respect to (i) his
duties and responsibilities to Circon Holdings and (ii) the Executive's service
as a non-executive director on those outside Board of Directors set forth on
Annex A attached hereto) without the prior written consent of the Company
except for time spent in managing his personal, financial and legal affairs, in
each case only if, and to the extent that, such activities do not interfere
with the performance of the Executive's duties and responsibilities hereunder.
(c) The Executive's services shall be performed at the
Company's Clearwater headquarters subject to such business travel as may be
required from time to time, or such other headquarters location as the Board
shall, in its discretion, determine.
3. Cash Compensation. (a) Base Salary. During the Employment
Period, the Executive shall receive a base salary (the "Annual Base Salary") at
the annual rate of $500,000. The Annual Base Salary shall be payable in
accordance with the Company's payroll practices as in effect from time to time,
subject to applicable taxes and withholding, but no less frequently than in
equal monthly installments.
(b) Annual Bonus. For each one year period during the
Employment Period, the Executive shall be eligible to earn an annual
performance bonus (the "Annual Bonus") based upon the terms and conditions of
an annual bonus program to be established by the Compensation Committee of the
Board (the "Compensation Committee"). The terms and conditions of such an
annual bonus program shall be determined in the sole and absolute discretion of
the Compensation Committee and may include performance goals and targets
relating to the business and operations of Company (and Circon Holdings) and
shall be subject to adjustment for any restructuring charges, reserves or other
matters that the Compensation Committee in its sole and absolute discretion may
deem appropriate. Any annual bonus program established under this Agreement
shall provide that the Executive's annual bonus opportunity ("Target Annual
Bonus") shall be up to $1,000,000, to be allocated as follows: (i) the
Executive shall receive $500,000 to the extent that the Compensation Committee
determines that the Executive has achieved 100% of targeted performance for the
applicable year during the Employment Term, and (ii) the Executive shall
receive, in the sole and absolute discretion of the Compensation Committee, up
to an additional $500,000 based upon the Executive's contributions towards
achieving the corporate goals established at the beginning of each year during
the Employment Term by the Board of Directors of the Company and Circon (as the
case may be) in their sole discretion (the "Corporate Goals"); provided that
for the period from July 13, 2000 through October 31, 2001 of the Employment
Term, the Corporate Goals shall be those set forth on Annex 1 attached hereto.
Any Annual Bonus payable pursuant to this subsection shall be paid in
accordance with the terms of the management incentive program then applicable
to the Executive.
(c) Starting Bonus. Upon commencing employment with the Company,
the Executive shall be entitled to receive a starting bonus of $175,000 (the
"Starting Bonus"); provided that the Executive acknowledges and agrees that the
full amount of the Starting Bonus shall be deducted from and shall reduce the
amount of any subsequent Annual Bonus until such time as the Starting Bonus has
been fully recouped by the Company; and provided further that the Executive
acknowledges and agrees that in the event that the Executive's employment with
the Company is terminated for Cause (as defined herein) or by the Executive
without Good
2
3
Reason (as defined herein) prior to the one year anniversary of the Effective
Date, then the Executive shall be required to immediately repay to the Company
that portion of Starting Bonus which has not been recouped by the Company as of
the date the Executive's employment with the Company terminates (the "Repayment
Obligation"). With regard to the Repayment Obligation, the Executive further
acknowledges and agrees that the Company may elect to offset any amounts
otherwise due to the Executive.
(d) Employee Benefit and Compensation Plans. During the
Employment Period, except as otherwise expressly provided herein, the Executive
shall be eligible to participate in all employee benefit plans, practices,
policies and programs of the Company as made available to the Company's senior
executive officers from time to time. In addition, the Company will reimburse
the Executive monthly for the cost of the premiums on his existing portable
life, health and long term disability benefits up to an amount not to exceed
$3,300 per month during the first year of the Employment Term, $3,795 per month
during the second year of the Employment Term and $4,364.25 per month during
the third year of the Employment Term, in each case, provided that the
Executive remains employed in good standing at the time such reimbursement is
made.
(e) Office and Support Staff/Computer. During the
Employment Period, the Executive shall be entitled to an office and secretarial
support as made available to the Company's senior executive officers from time
to time. In addition, for so long as the Executive remains employed in good
standing, the Company will purchase the Executive a laptop computer for
business use during the Employment Period.
(f) Perquisites. During the Employment Period, the
Executive shall be eligible to receive perquisites under the Company's
practices, policies and programs as made available to the Company's senior
executive officers from time to time.
(g) Vacation. During each year during the Employment
Term the Executive shall be entitled to four (4) weeks paid vacation (including
the period from July 13, 2000 through July 16, 2000) consistent with the
Company's practices, policies and programs for its senior executive officers.
The Executive shall be entitled to all public holidays observed by the Company.
(h) Commuter Expenses. The Company shall pay for or
reimburse the Executive for all reasonable and documented business related
commuter expenses incurred in connection with the Executive's performance of
his duties and obligations under this Agreement, including reasonable
housing/hotel expenses, car rental expenses, meal expenses and weekly roundtrip
air transportation to and from the Executive's home to the Company's
headquarters in Clearwater, Florida or such other headquarters locations as the
Board shall, in its discretion, determine. In the event the payments for or
reimbursement of the business related commuter expenses are treated as taxable
income to the Executive and the Executive is not entitled to receive an
offsetting deduction for such business related commuter expenses, the Company
shall pay to the Executive an additional amount to cover income taxes paid by
the Executive in connection with the Company's payment for or reimbursement of
said business related commuter expenses pursuant to this subsection (h), upon
Executive's submission of quarterly statements setting forth such
non-deductible expenses (consistent with prior practice).
3
4
4. Equity Compensation. (a) Stock Option Grant. The Executive
shall receive a grant of stock options for 220,000 shares of the Company's
common stock (the "Maxxim Options") under the Company's 1999 Stock Incentive
Plan (the "1999 Plan"). The foregoing grant shall be effective as of the
Effective Date and shall be subject to a per share exercise price of $5. The
Maxxim Options shall vest over three (3) years in one-third (1/3) annual
increments on each anniversary of the Effective Date for so long as the
Executive remains employed in good standing; provided that (i) no vesting of
any portion of the Maxim Options shall occur unless the Executive purchases the
Maxxim Stock (as defined below) and the 10,000 shares of common stock of Circon
Holdings that the Executive is required to purchase pursuant to that certain
letter agreement by and between the Executive and Circon Holdings (the "Circon
Stock"); and provided further that in the event of Change in Control (as
defined in Annex 2 attached hereto) or the Executive's termination by the
Company without Cause (as defined herein) any unvested Maxxim Options shall
immediately vest and become exercisable; and provided further that in the event
the Executive resigns with Good Reason (as defined herein), vesting of the
Maxxim Options shall be determined on a pro rata basis as if the Maxxim Options
were to vest in equal monthly installments over a two (2) year period running
from the Effective Date (e.g., 1/24 of the total shares shall vest for each
full month served by the Executive from the Effective Date until the date of
delivery of the Notice of Termination for Good Reason (as defined herein)); and
provided further that if the Executive is terminated for Cause (as defined
herein) or the Executive resigns without Good Reason (as defined herein) the
Maxxim Options will be subject to the three (3) year vesting set forth above
without any pro rata monthly vesting. The Maxxim Options shall consist of
non-qualified stock options under the terms of the 1999 Plan. Unless otherwise
provided for herein, the terms of the 1999 Plan and the individual form of
option agreement issued pursuant to the 1999 Plan (a form of which is attached
hereto as Exhibit B) shall govern the Executive's rights and obligations with
respect to the Maxxim Options.
(b) Stock Purchase. On the Effective Date, the Executive
shall purchase 30,000 shares of common stock in the Company for an aggregate
purchase price of $150,000 ($5 per share) (the "Maxxim Stock"). The purchase
price for the Maxxim Stock shall be paid as follows: (i) one-half (50%) or
$75,000 shall be paid in cash at the time of purchase; and (ii) subject to the
receipt by the Company of the cash payment in subclause (i), one-half (50%) or
$75,000 shall be payable by delivery of a promissory note (the "Promissory
Note") issued by the Executive to the Company, in the form attached hereto as
Exhibit A-1. The Promissory Note shall be secured by a pledge of the Maxxim
Stock, pursuant to the form of Stock Pledge Agreement attached hereto as
Exhibit A-2. In connection with this purchase of the Maxxim Stock, the
Executive represents and warrants as provided for in Annex 3 hereto.
All Maxxim Stock purchased pursuant to this Section 4 shall be
governed in all respects and be subject to the provisions of the Company
Stockholder's Agreement dated as of November 12, 1999 (the "Stockholders'
Agreement"); it being understood that (i) Executive shall be deemed to be a
"Stockholder" for purposes of the Stockholders' Agreement, (ii) Executive shall
be subject in all respects to the transfer restrictions set forth in Article 2
of the Stockholders' Agreement, and (iii) the Executive shall not be deemed to
be an "Executive Management Investor" for purposes of Article 4 of the
Stockholders' Agreement. Executive covenants and agrees that he shall take all
necessary steps to become a signatory to the Stockholders' Agreement together
with any amendments thereto.
4
5
5. Termination of Employment. (a) Death or Disability. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. The Company shall, to the full extent permitted
by law, be entitled to terminate the Executive's employment because of the
Executive's "Disability" (as herein defined) during the Employment Period.
"Disability" means that the Executive has been unable to perform or has not,
for a period of six months, or for a total of 180 days in any given period of
twelve months, performed the Executive's duties under this Agreement, as a
result of physical or mental illness or injury or otherwise as reasonably
determined by the Company.
(b) By the Company. (i) The Company may terminate the
Executive's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, the term "Cause" shall be defined as: the
Executive's willful misfeasance, willful malfeasance or willful nonfeasance
with respect to his duties and responsibilities to the Company or any of its
affiliates (it being understood that the Executive's willful misfeasance,
willful malfeasance and/or willful nonfeasance shall include, without
limitation: the Executives (i) continuing failure to substantially perform his
duties or obligations under this Agreement (other than by reason of death or
Disability), after specific demand from the Company regarding such failure to
perform, (ii) willful engaging in misconduct which is materially and
demonstrably injurious to the Company, Circon Holdings or any of their
respective affiliates, (iii) conviction of a felony or plea of nolo contendere
to a felony; (iv) fraud, embezzlement, dishonesty or breach of business ethics;
(v) any material breach of any Company policies or procedures; (vi) any breach
of Sections (7) or (8) of this Agreement; or (vii) Executive's failure to
purchase the Maxxim Stock and the Circon Stock pursuant to Section 4(b) hereof.
(c) By the Executive for Good Reason. (i) For purposes
of this Agreement, "Good Reason" means:
A. any change in the Executive's title to one
of lesser status;
B. any reduction in the Executive's Annual
Base Salary;
C. assignment to the Executive of any duties
inconsistent with his position, duties or responsibilities as
of the Effective Date (other than any duties or
responsibilities assigned to the Executive regarding the
business and affairs of Circon Holdings); or
D. continuing failure by the Company to
substantially comply with any material provision of this
Agreement, other than failures that are not taken in bad
faith and are remedied by the Company within 10 business days
after receipt of written notice thereof from the Executive;
provided that if the Company has commenced action to cure
within such 10 business day period but is unable to
completely cure within such 10 business day period, the
Company shall be permitted a reasonable time to cure but in
no event more than 60 days from its receipt of written notice
from the Executive.
(ii) A termination of employment by the
Executive for Good Reason shall be effectuated by giving the Company written
notice ("Notice of Termination for Good
5
6
Reason") of the termination, setting forth the conduct of the Company that
constitutes Good Reason within ten (10) days of the Executive's knowledge or
constructive knowledge of the alleged event giving rise to Good Reason and the
failure of the Executive to give notice within such ten (10) day period shall
result in a complete and irrevocable waiver of any claim by the Executive that
such conduct constituted Good Reason. A termination of employment by the
Executive for Good Reason shall be effective 30 days following the Date when
the Notice of Termination for Good Reason is given, unless the Company shall,
in its discretion, elect to terminate the Executive at an earlier time after
the delivery of such notice.
(d) Date of Termination. The "Date of Termination" means
the date of the Executive's death, disability, or the date on which the
termination of the Executive's employment by the Company for Cause or by the
Executive for Good Reason is effective, or the date on which the Company gives
the Executive notice of a termination of employment without Cause or the
Executive gives the Company notice of a termination of employment without Good
Reason, as the case may be.
6. Obligations of the Company upon Termination. (a) Other Than
for Cause, Death or Disability; Good Reason. If, during the Employment Period,
the Company terminates the Executive's employment, other than for Cause or
Disability, or the Executive terminates his employment for Good Reason, the
Company shall pay the amounts, continue the benefits described and take the
action with respect to the Maxxim Options, in each case as set forth in
subparagraph (i) below. The payments and other provisions provided pursuant to
this Section 6(a) are intended as liquidated damages for the termination of the
Executive's employment by the Company other than for Cause or Disability or for
the actions of the Company leading to a termination of the Executive's
employment by the Executive for Good Reason and shall be the sole and exclusive
remedy therefor; provided further that as a condition precedent for the receipt
of such payments the Executive shall execute and deliver a general release (in
the form attached hereto as Exhibit C) of all claims against the Company.
(i) The amounts to be paid as described above are:
A. The Executive's earned and accrued but
unpaid cash compensation, in the form of a lump-sum payment,
to be paid within 30 days after the Date of Termination,
which shall equal the sum of (1) any portion of the
Executive's Annual Base Salary earned through the Date of
Termination that has not yet been paid, (2) any earned and
unpaid Annual Bonus that was earned by the Executive for a
prior fiscal year and that was declared due and owing by the
Company; and (3) any accrued but unpaid vacation time (but
without giving effect to any carry-over of unused time from
prior years) and any unpaid business reimbursements or
amounts payable under Section 3(h) of this Agreement, in each
case subject to applicable taxes and withholding (the amounts
set forth in subclauses (1)-(3) constitute the "Accrued
Obligation").
B. A payment, payable in accordance with the
Company's standard monthly payroll practices in equal monthly
installments, and subject to withholding and taxes, of an
amount to be determined by the following formula:
6
7
$41,667 x (28-the aggregate number of months during which the
Executive has rendered services under this Agreement during
the Employment Period).
(b) Death or Disability. If the Executive's employment is
terminated by reason of the Executive's death or Disability during the
Employment Period, the Company shall pay the Accrued Obligations to the
Executive or the Executive's estate or legal representative, as applicable, in
a lump-sum payment (subject to applicable taxes and withholding) within 30 days
after the Date of Termination, and the Company shall have no further
obligations under this Agreement. In the event of the Executive's death, all of
the unvested Options shall be immediately canceled. In the event of the
Executive's disability, the Options shall be governed by the terms of the 1999
Plan and relevant stock option agreements.
(c) Cause; Other than for Good Reason. If the Executive's
employment is terminated by the Company for Cause during the Employment Period,
or if the Executive terminates his employment during the Employment Period
other than for Good Reason, the Company shall pay the Executive, in a lump-sum
payment (subject to applicable taxes and withholding) within 30 days of the
Date of Termination, any earned and unpaid Annual Base Salary through the Date
of Termination, and any Maxxim Options held by the Executive (whether vested or
unvested) shall be immediately canceled, and the Company shall have no further
obligations under this Agreement.
7. Confidential Information; Work Product. The Executive
acknowledges that as a senior executive of the Company he is familiar with a
range of confidential proprietary information regarding the Company and its
affiliates. The Executive further acknowledges and agrees that his employment
by the Company will, throughout the Employment Period, bring him into close
contact with the confidential affairs of the Company and its affiliates,
including information about their client and customer lists and information
concerning proprietary manufacturing formulations and processes, costs,
profits, real estate, markets, sales, products, key personnel, pricing
policies, operational methods, patents, medical device designs and procedures,
technical processes and other business affairs and methods and other
information not readily available to the public, and plans for future
development. The Executive further acknowledges that the services to be
performed under this Agreement are of a special, unique, unusual, extraordinary
and intellectual character. The Executive further acknowledges that the
business of the Company and its subsidiaries is international in scope, that
its products are marketed throughout the world, that the Company competes in
nearly all of its business activities with other entities that are or could be
located in nearly any part of the world and that the nature of the Executive's
services, position and expertise are such that he is capable of competing with
the Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
(a) The Executive acknowledges that the Executive will
have knowledge of certain trade secrets of the Company, including, without
limitation, information concerning its client and customer lists and
information concerning proprietary manufacturing formulations and processes.
The Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the
Company or any of its affiliates, and their respective businesses, (including,
without limitation, any client names, client lists, trade secrets, research,
proprietary manufacturing formulations and processes, medical
7
8
device designs and procedures, secret data, business methods, operating
procedures or programs), which shall have been obtained by the Executive during
the Executive's employment by the Company and which shall not be or become
public knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement) (collectively the "Trade Secrets and
Confidential Information"). After termination of the Executive's employment
with the Company, except as may be required by law, the Executive shall not
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. For the purposes of this Section
7, information shall not be deemed to be publicly available merely because it
is embraced by general disclosures or because individual features or
combinations thereof are publicly available. All records, files, memoranda,
reports, customer lists, documents and the like that the Executive uses,
prepares or receives during the course of the Executive's employment shall
remain the sole property of the Company or one or more of its affiliates, as
applicable, and shall be turned over to the Company or its affiliates upon
termination of the Executive's employment.
(b) In view of the fact that the services to be rendered
by the Executive on behalf of the Company are of special, unique and
extraordinary character, while employed by the Company or any of its affiliates
and for three years after the Executive's termination of employment for any
reason, the Executive will not, without the written consent of the Board,
directly or indirectly: (i) attempt in any manner to persuade any client or
customer of the Company or any of its affiliates to cease to do business or to
reduce the amount of business which any client or customer has customarily done
or contemplates doing with the Company or any of its affiliates; (ii) solicit
business of any client or customer of the Company or any of its affiliates
unless such solicitations are rendered as an employee of the Company or such
affiliates; or (iii) render any services of the type usually rendered by the
Company or an affiliate for any such client or customer of the Company or any
of its affiliates (unless such services are rendered as an employee of the
Company or such affiliates), in the case of clauses (i), (ii) and (iii),
whether or not the relationship between the Company or such affiliate and such
client or customer was originally established, in whole or in part, through the
Executive's efforts.
(c) While employed by the Company or any of its
affiliates and for three years after the Executive's termination of employment
for any reason, the Executive will not, directly or indirectly, on behalf of
the Executive or any other person, solicit for employment by other than the
Company or such affiliates any person then employed by the Company or its
affiliates.
(d) The Executive acknowledges that during the Employment
Period, the Executive may conceive of, discover, invent or create inventions,
improvements, new contributions, literary property, computer programs and
software material, ideas and discoveries, whether patentable or copyrightable
or not (all of the foregoing being collectively referred to herein as "Work
Product"), and that various business opportunities shall be presented to the
Executive by reason of the Executive's employment by the Company. The Executive
acknowledges that all of the foregoing shall be owned by and belong exclusively
to the Company and that the Executive shall have no personal interest therein,
provided that they are either related in any manner to the business (commercial
or experimental) of the Company, or are, in the case of Work Product, conceived
or made on the Company's time or with the use of the Company's facilities or
materials, or, in the case of business opportunities, are presented to the
8
9
Executive for the possible interest or participation of the Company. The
Executive shall (i) promptly disclose any such Work Product and business
opportunities to the Company; (ii) assign to the Company, upon request and
without additional compensation, the entire rights to such Work Product and
business opportunities; (iii) sign all papers necessary to carry out the
foregoing; and (iv) give testimony in support of the Executive's inventorship
or creation in any appropriate case. The Executive agrees that the Executive
will not assert any rights to any Work Product or business opportunity as
having been made or acquired by the Executive prior to the Date of this
Agreement except for Work Product or business opportunities, if any, disclosed
to and acknowledge by the Company in writing prior to the Date hereof.
(e) The Executive acknowledges and agrees that: (i) the
purposes of Section 7 are to protect the goodwill and Trade Secrets and
Confidential Information of the Company and its affiliates for whom the
Executive performs services under this Agreement, and to prevent the Executive
from interfering with the business of the Company and such affiliates as a
result of or following termination of the Executive's employment with the
Company; (ii) that the covenants of Section 7, are being given in part in
consideration for the consideration being received by the Executive hereunder;
(iii) because of the nature of the business in which the Company and its
affiliates are engaged and because of the nature of the Trade Secrets and
Confidential Information to which the Executive has access, it would be
impractical and excessively difficult to determine the actual damages of the
Company and its affiliates in the event the Executive breached any of the
covenants of Section 7; and (iv) remedies at law (such as monetary damages) for
any breach of the Executive's obligations under Section 7 would be inadequate.
The Executive therefore agrees and consents that if the Executive commits any
breach of a covenant under this Section 7 or threatens to commit any such
breach, the Company and its affiliates shall have the right (in addition to,
and not in lieu of, any other right or remedy that may be available to it) to
(i) temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage and (ii) to implement the repayment
obligations set forth more fully in Annex 3 hereto. With respect to any
provision of Section 7 finally determined by a court of competent jurisdiction
to be unenforceable, the Executive, the Company and its affiliates hereby agree
that such court shall have jurisdiction to reform this Agreement or any
provision hereof so that it is enforceable to the maximum extent permitted by
law, and the parties agree to abide by such court's determination. If any of
the covenants of Section 7 are determined to be wholly or partially
unenforceable in any jurisdiction, such determination shall not be a bar to or
in any way diminish the right of the Company or its affiliates to enforce any
such covenant in any other jurisdiction.
(f) The provisions of Section 7 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment
hereunder.
8. Non Competition. The Executive acknowledges that as a senior
executive of the Company he is familiar with a range of confidential
proprietary information regarding the Company and its affiliates. The Executive
further acknowledges and agrees that his employment by the Company will,
throughout the Employment Period, bring him into close contact with the
confidential affairs of the Company and its affiliates, including information
about their client and customer lists and information concerning proprietary
manufacturing formulations and processes, costs, profits, real estate, markets,
sales, products, key personnel, pricing policies,
9
10
operational methods, patents, medical device designs and procedures, technical
processes and other business affairs and methods and other information not
readily available to the public, and plans for future development. The
Executive further acknowledges that the services to be performed under this
Agreement are of a special, unique, unusual, extraordinary and intellectual
character. The Executive further acknowledges that the business of the Company
and its subsidiaries is international in scope, that its products are marketed
throughout the world, that the Company competes in nearly all of its business
activities with other entities that are or could be located in nearly any part
of the world and that the nature of the Executive's services, position and
expertise are such that he is capable of competing with the Company from nearly
any location in the world. In recognition of the foregoing, the Executive
covenants and agrees:
(a) While employed by the Company or any of its
affiliates and for three years after the Executive's termination of employment
for any reason, the Executive will not, directly or indirectly, for the
Executive's own account or the account of others, own, manage, operate, control
or participate in the ownership, management, operation or control of or be
connected as a principal, employee, officer, director, independent contractor,
representative, stockholder, financial backer, partner, advisor, manager,
consultant or in any other individual or representative capacity with any
business which engages in any business within any market area served by the
Company or any of its affiliates involving the development, manufacture,
distribution or marketing of any hospital or medical products of the type
developed, manufactured, distributed or marketed by the Company or its
affiliates at any time within two years prior to the termination of the
Executive's employment (a "Competing Business"). Ownership for personal
investment purposes only of less than 5% of the voting stock of any publicly
held Competing Business shall not constitute a violation hereof.
(b) The Executive acknowledges and agrees that: (i) the
purposes of Section 8 are to protect the goodwill and Trade Secrets and
Confidential Information of the Company and its affiliates for whom the
Executive performs services under this Agreement with respect to a Competing
Business, and to prevent the Executive from interfering with the business of
the Company and such affiliates as a result of or following termination of the
Executive's employment with the Company; (ii) that the covenants of Section 8,
are being given in part in consideration for the consideration being received
by the Executive hereunder; (iii) because of the nature of the business in
which the Company and its affiliates are engaged and because of the nature of
the Trade Secrets and Confidential Information to which the Executive has
access, it would be impractical and excessively difficult to determine the
actual damages of the Company and its affiliates in the event the Executive
breached any of the covenants of Section 8; and (iv) remedies at law (such as
monetary damages) for any breach of the Executive's obligations under Section 8
would be inadequate. The Executive therefore agrees and consents that if the
Executive commits any breach of a covenant under this Section 8 or threatens to
commit any such breach, the Company and its affiliates shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be
available to it) to (i) temporary and permanent injunctive relief from a court
of competent jurisdiction, without posting any bond or other security and
without the necessity of proof of actual damage and (ii) to implement the
repayment obligations set forth more fully in Annex 3 hereto. With respect to
any provision of Section 8 finally determined by a court of competent
jurisdiction to be unenforceable, the Executive, the Company and its affiliates
hereby agree that such court shall have jurisdiction to reform this Agreement
or any provision hereof so that it is enforceable to the maximum extent
permitted by
10
11
law, and the parties agree to abide by such court's determination. If any of
the covenants of Section 8 are determined to be wholly or partially
unenforceable in any jurisdiction, such determination shall not be a bar to or
in any way diminish the right of the Company or its affiliates to enforce any
such covenant in any other jurisdiction.
(c) The provisions of Section 8 shall remain in full
force and effect until the expiration of the period specified herein
notwithstanding the earlier termination of the Executive's employment
hereunder.
9. Successors. (a) This Agreement is personal to the Executive
and, without the prior written consent of the Company, shall not be assignable
by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns, and may be assigned by
Company in connection with any sale, transfer or other disposition of all or
substantially all of its business and assets.
10. Indemnification. The Executive shall be entitled in his
capacity as an officer or director of the Company or any of its subsidiaries,
or as a member of any other governing body or any partnership or joint venture
in which the Company has an equity interest in connection with his services
during the Employment Period (and after the term of employment, to the extent
relating to any continued service as such officer, director or member) to the
benefit of the indemnification provisions contained in the Certificate of
Incorporation and By-Laws of the Company as in effect from time to time with
respect to any claims arising during or made after his employment, to the
extent not prohibited by applicable law at the time of the assertion of any
liability against the Executive. In addition, the Executive shall in connection
with his services during the Employment Period be included in the category of
covered executives under any directors' and officers' insurance policy that may
be maintained by the Company from time to time with respect to any claims
arising during or made after his employment.
11. Post-Termination Assistance. For so long as the Executive is
receiving any payments pursuant to this Agreement, the Executive shall
cooperate, at the reasonable request of the Company (i) in the transition of
any matter for which the Executive had authority or responsibility during the
Employment Period, or (ii) with respect to any other matter involving the
Company for which the Executive may be of assistance.
12. Arbitration. Subject to the provisions of Sections 7 and 8
hereof, the Company and the Executive agree that any disputes with respect to
this Agreement shall be subject to binding arbitration in New York, New York,
in accordance with the rules of the Commercial Panel of American Arbitration
Association. All aspects of the arbitration, including the existence of such
proceedings, all claims and allegations arising in such proceeding and the
results of such arbitration shall be treated as confidential information
subject to Sections 7 and 8 hereof, except to the extent disclosure of such
information is required by law, and shall be final and binding on the parties
thereto. Each party agrees to pay for the costs of arbitration and its own
attorneys' fees and expenses incurred as a result of such arbitration. The
dispute shall be submitted to a single arbitrator to be mutually agreed upon by
the parties. If the parties cannot
11
12
agree upon a single arbitrator within 30 days of either party's delivery of a
notice of intent to arbitrate, then each party shall appoint one arbitrator who
shall then jointly appoint a third arbitrator. Judgment upon the arbitration
award may be entered in any court having jurisdiction.
13. Miscellaneous. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable to
agreements made and to be performed entirely within such state. The captions of
this Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective successors and
legal representatives.
(b) All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Xxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
If to the Company:
Maxxim Medical, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Chairman
or to such other address as either party furnishes to the other in writing in
accordance with this Section 13. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law, and the invalid or unenforceable provision shall be deemed
to have been redrafted as if in the original, so as to be valid and enforceable
to the maximum extent permissible under applicable law.
(d) 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.
12
13
(e) The failure of the Executive or the Company 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.
(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and which together
shall constitute one instrument.
(g) Whenever this Agreement provides for any payment to
the Executive's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Executive may designate by written notice to the Company.
The Executive shall have the right to revoke any such designation and to
redesignate a beneficiary or beneficiaries by written notice to the Company
(and to any applicable insurance company) to such effect.
(h) The Executive represents and warrants to the Company
that this Agreement is legal, valid and binding upon the Executive and the
execution of this Agreement and the performance of the Executive's obligations
hereunder does not and will not constitute a breach of, or conflict with the
terms or provisions of, any agreement or understanding to which the Executive
is a party (including, without limitation, any other employment agreement). The
Company represents and warrants to the Executive that this Agreement is legal,
valid and binding upon the Company and the execution of this Agreement and the
performance of the Company's obligations hereunder does not and will not
constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which the Company is a party.
(i) Neither the Executive, his legal representative nor
any beneficiary designated by the Executive shall have any right, without the
prior written consent of the Company, to assign, transfer, pledge, hypothecate,
anticipate or commute to any person or entity any payment due in the future
pursuant to any provision of this Agreement, and any attempt to do so shall be
void and shall not be recognized by the Company.
(j) Each of the parties has been represented by counsel
(or has had the opportunity to be so represented) in the negotiation and
preparation of this Agreement. The parties agree that this Agreement is to be
construed as jointly drafted. Accordingly, this Agreement will be construed
according to the fair meaning of its language, and the rule of construction
that ambiguities are to be resolved against the drafting party will not be
employed in the interpretation of this Agreement.
(k) Notwithstanding the expiration, non-renewal or
termination of this Agreement, the provisions of Sections (7), (8), (9), (10),
(11) and (12) of the Agreement shall continue in full force and effect and
remain fully binding upon the parties to the extent provided for therein.
13
14
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization of its Board of Directors, 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.
/s/ Xxxx X. Xxxxxxx
-----------------------------
Xxxx X. Xxxxxxx
Maxxim Medical, Inc.
By:/s/ Xxxx X. Xxx
--------------------------
Title:Chairman
-----------------------
14
15
ANNEX 2
For purposes of this Agreement "Change in Control" shall mean (i) the
acquisition by any "Person" or "Group" (as such terms are used in Regulation
13D under the Securities Exchange Act of 1934, as amended) other than Fox
Xxxxx & Company, LLC or any of its "affiliates" (as defined below) or any
"Person" or "group" that is a stockholder of the Company as of the Effective
Date of beneficial ownership of a majority or more of the Company's outstanding
voting securities; or (ii) any sale, lease, exchange or other transfer in one
transaction or a series of related transactions, other than a transfer to an
entity which is majority controlled by Fox Xxxxx & Company, LLC or any
affiliate thereof, any other "Person" or "Group" that is a stockholder of the
Company as of the Effective Date or any entity with substantially the same
equity holders as the Company immediately prior to such transfer, of all or
substantially all of the assets of the Company or its operating subsidiaries
(taken together). For purposes of this Annex 2, "affiliate" of Fox Xxxxx &
Company, LLC shall mean a person or entity directly or indirectly controlled
by, controlling or under common control with Fox Xxxxx & Company, LLC and their
equity holders.
16
ANNEX 3
REPRESENTATIONS AND WARRANTIES
In connection with the purchase and sale of the Maxxim Stock hereunder,
Executive represents and warrants to the Company that:
(a) The Maxxim Stock to be acquired by Executive pursuant to this
Agreement shall be acquired for Executive's own account and not
with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any applicable state
securities laws, and the Maxxim Stock shall not be disposed of
in contravention of the Securities Act or any applicable state
securities laws.
(b) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Maxxim Stock.
Executive is an "accredited investor", as defined in Regulation
D promulgated under the Securities Act.
(c) Executive is able to bear the economic risk of Executive's
investment in the Maxxim Stock for an indefinite period of time
because the Maxxim Stock has not been registered under the
Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such
registration is available.
(d) Executive has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of
Maxxim Stock and has had full access to such other information
concerning the Company as Executive has requested. Executive has
reviewed, or has had an opportunity to review, a copy of the
Stockholders' Agreement.
(e) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its
terms, and the execution, delivery and performance of this
Agreement by Executive does not and shall not conflict with,
violate or cause a breach of any agreement, contract or
instrument to which Executive is a party or any judgment, order
or decree to which Executive is subject.
(f) Executive is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any person
or entity other than the Company which would prevent or preclude
the Executive from performing his duties and obligations under
this Agreement.
(g) Executive has consulted with independent legal counsel regarding
his rights and obligations under this Agreement and that he fully
understands the terms and conditions contained herein. Executive
has obtained advice from persons other than the Company and its
counsel regarding the tax effects of the transaction contemplated
hereby.
17
ANNEX 4
OPTION AND RESTRICTED STOCK FORFEITURE
Forfeiture of Options and Restricted Stock and Gains Realized upon Prior
Option Exercises or Sale of Stock. Unless otherwise determined by the Board of
Directors of the Company, the Maxxim Options granted under this Employment
Agreement, together with any future option grants made to the Executive, or
options on the common stock of, Circon Holdings, shall be subject to the
following additional forfeiture conditions (the Maxxim Options and any future
options (including options on Circon Holdings) shall be referred to herein as
the "Options" to which the Executive, by accepting such Options, hereby agrees.
In the event of the Executive's breach or failure to comply with any of the
terms or conditions of Sections 7 and 8 of this Employment Agreement (a
"Forfeiture Event"), all of the following forfeitures will result:
(i) The unexercised portion of the Options, whether or not vested, will
immediately be forfeited and canceled upon the occurrence of the
Forfeiture Event; and
(ii) The Executive will be obligated to repay to the Company, in cash,
within five (5) business days after demand is made therefore by the
Company, the total amount of Award Gain (as defined herein) realized
by the Executive (I) upon each exercise of the Options that occurred
on or after (A) the date that is six (6) months prior to the
Forfeiture Event, if the Forfeiture Event occurred while the
Executive was employed by the Company or a subsidiary or affiliate,
or (B) the date that is six (6) months prior to the date that
Executive's employment by the Company or a subsidiary or affiliate
terminated, if the Forfeiture Event occurred after the Executive
ceased to be so employed, or (II) upon any sale, transfer or other
disposition of the common stock of the Company or Circon Holdings
(collectively, the "Stock"). For purposes of this Annex 3, the
term "Award Gain" shall mean (i) in respect of a given Options
exercise, the product of (X) the Fair Market Value per share of stock
at the date of such exercise (without regard to any subsequent change
in the market price of such share of stock) minus the exercise price
times (Y) the number of shares as to which the Options were exercised
at that date, and (ii), in respect of any sale of Stock, the value of
any cash or the Fair Market Value of stock or property paid or
payable to the Executive less any cash or the Fair Market Value of
any stock or property (other than stock or options which would have
itself been forfeitable hereunder and excluding any payment of tax
withholding) paid by the Executive to the Company as a condition or
in connection with the acquisition of such Stock.
18
EXHIBIT A-1
THIS NOTE IS ISSUED TO SECURE PAYMENT FOR SHARES OF MAXXIM
CORPORATION STOCK SOLD TO THE MAKER.
NON-RECOURSE PROMISSORY NOTE
$75,000 New York, New York
_______________ __, 2000
FOR VALUE RECEIVED, the undersigned (the "Maker") promises to pay to
the order of MAXXIM MEDICAL, INC., a Texas corporation (the "Company"), at its
principal, executive offices, the principal sum of SEVENTY FIVE THOUSAND
DOLLARS ($75,000), in lawful money of the United States of America, which shall
be legal tender in payment of all debts and dues, public and private, at the
time of payment. This Note shall bear interest annually at the annual
compounded rate of 10% provided, that, all interest accrued on the Note through
to and including the second anniversary of the issuance date shall be added to
the initial principal amount of the Note, and not be due and payable currently;
and provided further that if Maker elects in writing to have this Note be fully
recourse against the Maker and his personal assets (other than the Collateral
as defined below) then from the date of such election this Note shall bear cash
interest annually at the compounded rate of 6%. This Note shall be due and
payable in two years from the date set forth above, subject to (i) payment in
full of the principal and interest due and owing as of the second anniversary
of the date of issuance and (ii) prepayment from the proceeds from the sale by
Maker of any shares of the common stock of the Company, par value $.01 per
share ("Common Stock"), or any options to purchase shares of Common Stock, as
provided below. The Maker shall have the right and privilege of prepaying this
Note at any time or times, in whole or in part, without notice or penalty, in
principal amounts of no less than $5,000. All past due installments of
principal shall bear penalty interest at the highest rate permitted by
applicable law, or if no such maximum rate is established by applicable law,
then at the rate of eighteen percent (18%) per annum. The Maker, as well as any
persons or entities to become liable for the payment of this Note, hereby
expressly waive demand or presentment for payment of this Note, notice of
nonpayment, protest, suit, acceleration, intention to accelerate, diligence
and/or any notice of, or defense on account of, the extension of time of
payment or change in the method of payments, and/or any modification of the
terms hereof or any instrument securing or guaranteeing the payment hereof, and
consent to any and all renewals and extensions in the time of payment hereof,
and/or any modification of the terms hereof or any instrument securing or
guaranteeing the payment hereof, and to any substitutions, exchange or release
of any security herefor or the release of any party primarily or secondarily
liable herefor, and further agree that the acceptance of late payment hereunder
by the Company, waiver or other forgiveness of any other defaults by Maker,
shall not constitute a waiver by the Company of any subsequent defaults, late
payments or other violations of the Maker's obligations hereunder and/or in the
terms of any instrument securing or guaranteeing the payment hereof. If this
Note is not paid when due (whether the same becomes due by acceleration or
otherwise) and is placed in the hands of an attorney for collection, or if suit
is filed hereon, or if this Note shall be collected by legal proceedings or
through a probate or bankruptcy court, the Maker agrees to pay all costs of
collection, including reasonable attorneys' fees.
19
This Note shall be construed in accordance with the laws of the State
of New York and the laws of the United States applicable to transactions in New
York.
The payment of this Note is secured by the pledge of 30,000 shares of
Common Stock sold to Maker (the "Shares") pursuant to the Stock Pledge
Agreement executed as of the date hereof, together with all proceeds, monies,
income and benefits attributable or accruing to such Shares which Maker is or
may hereafter become entitled to receive on account of such Shares, including,
but not by way of limitation, all dividends and other distributions on or with
respect thereto whether payable in cash, stock or other property and all
subscription and other rights (collectively, the "Collateral"). Maker hereby
pledges, assigns, transfers, delivers and grants to the Company a security
interest in the Collateral to secure performance and payment of all obligations
and indebtedness of Maker hereunder, and delivers the certificate representing
the Collateral to the Company, together with a stock power endorsed in blank,
to secure such pledge. A portion of the Collateral may be released from this
pledge upon partial payment of the Note without altering, varying or
diminishing in any way the force, effect, lien, security interest or charge of
this pledge as to the Collateral not expressly released, and this pledge shall
continue as a first and prior lien and charge on all of the Collateral not
expressly released until this Note has been paid in full. Partial release of
the Collateral upon prepayment of a portion of the principal amount of the Note
may be made in the sole discretion of the Company in the amounts deemed
appropriate by it.
So long as this Note is outstanding, then upon the sale by Maker of
any shares of Common Stock (including, but not limited to, any of the Shares
held as part of the Collateral), or the sale by Maker of any options to acquire
shares of Common Stock, the repayment of an amount due under this Note, equal
to the proceeds of such shares remaining after the payment by Maker of any and
all applicable taxes and reasonable fees and charges shall be accelerated and
shall become immediately due and payable, and Maker shall deliver to the
Company all of the proceeds of such sales remaining after the payment of any
and all applicable taxes and reasonable fees and charges until this Note is
repaid in full, including the amount of any interest that may become due
hereunder. Furthermore, in the event that the Maker breaches or fails to comply
with any of the terms or conditions of Sections 7 or 8 of the employment
agreement between the Company and Xxxx X. Xxxxxxx (the "Employment Agreement"),
then this Note shall accelerate and all amounts owed hereunder shall become
immediately due and payable.
All notices hereunder shall be in writing and shall be deemed to have
been delivered on the date personally delivered or on the date mailed, first
class, registered or certified mail, postage prepaid, if addressed to the
respective parties hereto at their addresses as shown in the corporate records
of the Company.
2
20
IN WITNESS WHEREOF, the Maker has executed this Note as of the date
first above written.
MAKER: Xxxx X. Xxxxxxx Name:
------------------------------
The Company as secured party:
MAXXIM MEDICAL, INC.
By:
--------------------------
3
21
EXHIBIT A-2
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") is made as of July 13,
2000, by and between Xxxx X. Xxxxxxx ("Pledgor") and Maxxim Medical, Inc., a
Texas corporation (the "Company"). Any capitalized terms used herein but not
defined shall have the meanings assigned to them in the Employment Agreement.
The Company and Pledgor are parties to an Employment Agreement (the
"Employment Agreement"), dated as of the date hereof, pursuant to which the
Company sold to Pledgor 30,000 shares of the Company's Common Stock (the
"Pledged Interest"), all of which are pledged pursuant to this Agreement, and
the Company has permitted the Pledgor to pay the purchase price therefor, in
part, by delivery to the Company of a promissory note in the aggregate
principal amount of $75,000 (the "Note"). This Agreement provides the terms and
conditions upon which the Note is secured by a pledge to the Company of the
Collateral (as defined below).
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Company to accept the Note as
payment for the Pledged Interest, Pledgor and the Company hereby agree as
follows:
1. Pledge. Pledgor hereby pledges to the Company, and grants to
the Company a security interest in, the Pledged Interest and any related rights
to payment, profits, distributions thereon, as the case may be, and all
proceeds thereof, including any securities and moneys received (collectively
the "Collateral"), whether now existing or acquired, as security for the prompt
and complete payment when due of the unpaid principal of and interest on the
Note and full payment and performance of the obligations and liabilities of
Pledgor hereunder (including costs and attorneys fees associated with
enforcement hereunder).
2. Delivery of Pledged Interest. Pledgor agrees to deliver to
the Company any certificates or instruments representing the Pledged Interest
or other Collateral, duly endorsed in blank or accompanied by undated stock
powers duly executed in blank by such Pledgor or such other instruments of
transfer as are acceptable to the Company.
3. Voting Rights; Cash Distribution. Notwithstanding anything to
the contrary contained herein, during the term of this Agreement until such
time as there exists a default in the payment of principal or interest on the
Note or any other default under the Note or hereunder, Pledgor shall be
entitled to all voting rights with respect to the Pledged Interest and shall be
entitled to receive all cash distributions paid in respect of the Pledged
Interest. Upon the occurrence of and during the continuance of any such
default, at the option of the Company and upon notice by the Company to the
Pledgor, Pledgor shall not be able to vote the Pledged Interest, such voting
rights with respect thereto shall be exercisable by the Company and the Company
shall retain all such cash distributions payable on the Pledged Interest as
additional security hereunder. In furtherance of the Company's rights under
this Section, the Pledgor shall execute and deliver to the Company, or cause to
be executed and delivered to the Company, all such proxies, powers of attorney,
and other instruments as the Company may reasonably request
22
for the purpose of enabling the Company to exercise the voting rights which it
is entitled to exercise or refrain from exercising pursuant to this Section 3.
4. Other Distributions, etc. If, while this Agreement is in
effect, Pledgor becomes entitled to receive or receives any securities or other
property in addition to, in substitution of, or in exchange for any of the
Pledged Interest (whether as a distribution in connection with any
recapitalization, reorganization or reclassification), Pledgor shall accept
such securities or other property on behalf of and for the benefit of the
Company as additional security for Pledgor's obligations under the Note and
shall promptly deliver such additional security to the Company together with
duly executed forms of assignment, and such additional security shall be deemed
to be part of the Pledged Interest hereunder.
5. Default. If Pledgor (a) defaults in the payment of the
principal under the Note when it becomes due (whether upon demand, acceleration
or otherwise) or any other event of default under the Note or this Agreement
occurs (including, without limitation, the bankruptcy or insolvency of Pledgor)
or (b) defaults in the payment of interest or any other amount related to the
Note, the Company may (following five (5) days notice to Executive, during
which the default is not cured) exercise any and all the rights, powers and
remedies of any owner of the Pledged Interest (including the right to vote the
Pledged Interest and receive any distributions with respect to such Pledged
Interest) and shall have and may exercise without demand any and all the rights
and remedies granted to a secured party upon default under the Uniform
Commercial Code of New York or otherwise available to the Company under
applicable law. Without limiting the foregoing, after the occurrence of and
during the continuance of a default, the Company is authorized to sell, assign
and deliver at its discretion, from time to time, all or any part of the
Collateral at any private sale or public auction, on not less than ten days
written notice to Pledgor, at such price or prices and upon such terms as the
Company may deem advisable. Pledgor shall have no right to redeem the
Collateral after any such sale or assignment. At any such sale or auction, the
Company may bid for, and become the purchaser of, the whole or any part of the
Pledged Interest offered for sale. In case of any such sale, after deducting
the costs, attorneys' fees and other expenses of sale and delivery, the
remaining proceeds of such sale shall be applied to the principal of and
accrued interest on the Note and other amounts related thereto (including
costs, attorneys' fees associated with enforcement hereof); provided that after
payment in full of the indebtedness evidenced by the Note, the balance of the
proceeds of sale then remaining shall be paid to Pledgor and Pledgor shall be
entitled to the return of any of the Pledged Interest remaining in the hands of
the Company. Pledgor shall be liable for any deficiency (to the extent liable
therefor under the Note) if the remaining proceeds are insufficient to pay the
indebtedness under the Note in full, including the fees of any attorneys
employed by the Company to collect such deficiency.
6. Payment of Indebtedness and Release of Pledged Interest. Upon
payment in full of the indebtedness evidenced by the Note and any amounts owed
hereunder, the Company shall take all necessary action required to release any
security interests the Company has with respect to the Collateral.
7. No Other Liens; No Sales or Transfers. Pledgor hereby
represents and warrants that Pledgor has good and valid title to all of the
Collateral, free and clear of all liens, security interests and other
encumbrances and Pledgor hereby covenants that, until such time as all of the
outstanding principal of and interest on the Note and amounts due and owing
hereunder have been repaid, Pledgor shall not (i) create, incur, assume or
suffer to exist any pledge, security
2
23
interest, encumbrance, lien or charge of any kind against the Collateral or
Pledgor's rights or a holder thereof, or (ii) sell or otherwise transfer any of
the Collateral or any interest therein.
8. Further Assurances. Pledgor agrees that at any time and from
time to time upon the written request of the Company, Pledgor shall execute and
deliver such further documents (including UCC financing statements) and do such
further acts and things as the Company may reasonably request to effect the
purposes of this Agreement.
9. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10. No Waiver; Cumulative Remedies. The Company shall not by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
the Company, and then only to the extent therein set forth. A waiver by the
Company of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Company would otherwise
have on any future occasion. No failure to exercise nor any delay in exercising
on the part of the Company, any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and may be exercised singly or concurrently, and are not exclusive
of any rights or remedies provided by law.
11. Waivers, Amendments; Applicable Law. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended except
by an instrument in writing, duly executed by the parties hereto. This
Agreement and all obligations of the Pledgor hereunder shall together with the
rights and remedies of the Company hereunder, inure to the benefit of the
Company and its successors and assigns. This Agreement shall be governed by,
and be construed and interpreted in accordance with, the laws of the State of
New York, without giving effect to any applicable principles of conflicts of
laws.
IN WITNESS WHEREOF, this Stock Pledge Agreement has been executed as
of the date first above written.
EXECUTIVE:
-------------------------------------
MAXXIM MEDICAL, INC.
By:
----------------------------------
Its:
---------------------------------
3
