Exhibit 10(c)(iii)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2000 between
AMERICAN MEDICAL ALERT CORP., a New York corporation (the "Company"), with
offices located at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and XXXXXX
X. XXXXXX, an individual having an address at 00 Xxxxxxxx Xxxx, Xxxx Xxxxx, Xxx
Xxxx 00000 ("Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to retain the services of
Employee upon the terms and conditions stated herein; and
WHEREAS, Employee desires to continue to be employed by the
Company upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises contained herein, the parties hereby agree as follows:
1. Employment. The Company hereby employs Employee for the
period beginning as of the date hereof and ending December 31, 2002, unless
earlier terminated pursuant hereto (the "Employment Period").
2. Duties. Subject to the authority of the Board of Directors
of the Company, Employee shall be employed as the Company's Chairman of the
Board, President and Chief Executive Officer. Employee will perform such duties
and services of an executive nature, commensurate with his position as the
Chairman of the Board, President and Chief Executive Officer, as may from time
to time be assigned to him by the Board of Directors.
3. Full Time. Employee agrees that he will devote his full
time and attention during regular business hours to the business and affairs of
the Company. The foregoing shall not prevent the purchase, ownership or sale by
Employee of investments or securities of publicly held companies and any other
business that is not competitive with the Company or any subsidiary of the
Company so long as such investment does not require active participation of
Employee in the management of the business of such publicly held companies, does
not interfere or conflict with the performance of Employee's duties hereunder
and does not otherwise violate any of the provisions of this Agreement, or
Employee's participation in philanthropic organizations to the extent that such
participation does not interfere or conflict with the performance of Employee's
duties hereunder and does not otherwise violate any provision of this Agreement.
4. Inducement. As an inducement to Employee to enter into this
Agreement, Employee shall receive options under the Company's Stock Option Plan,
to purchase up to 160,000 of the Company's Common Stock, at an exercise price of
$ 2.75 per share. The term of
exercise shall be five years from the date hereof and all such options shall
vest and be exercisable immediately. Notwithstanding anything contrary to this
Section 4, the grant of options hereunder is contingent and conditioned upon
approval by the Company's shareholders of an option plan reserving sufficient
shares for the grant of the options specified above. The options specified
herein shall be subject to all provisions of such plan.
5. Compensation. In consideration of the duties and services
to be performed by Employee hereunder, the Company agrees to pay, and Employee
agrees to accept the amounts set forth below:
(a) A base salary, to be paid on a weekly basis, at
the rate of:
(i) $260,000 per annum during the period beginning
January 1, 2000 and ending December 31, 2000;
(ii) $290,000 per annum during the period beginning
January 1, 2001 and ending December 31, 2001; and
(iii) $320,000 per annum during the period beginning
January 1, 2002 and ending December 21, 2002.
(b) As additional compensation, with respect to each
fiscal year of the Company during the Employment Period during which the
Company's Pre-Tax Income (as hereinafter defined) exceeds $2,000,000, an amount
equal to a percentage of the Company's Pre-Tax Income, as follows: (i) 8% of the
Company's Pre-Tax Income between $2,000,000 and 3,000,000, (ii) 9% of the
Company's Pre-Tax Income between $3,000,000 and $4,000,000, and (iii) 10% of the
Company's Pre-Tax Income in excess of $4,000,000. No additional compensation
shall be paid for any fiscal year in which Pre-Tax Income is less than
$2,000,000.
(c) In lieu of part or all of the additional
compensation payable in cash under paragraph 5(b), Employee may elect to
receive, as of December 31 of the year for which Pre-Tax Profits are determined,
such number of shares of the Company's Common Stock as the Board of Directors
may determine has a fair market value equal to such additional compensation. If
the Company's Common Stock is listed on a national securities exchange or traded
on the Over-the-Counter market, the fair market value of a share of such Common
Stock shall be the closing selling price or the mean of the closing bid and
asked prices of the Company's Common Stock quoted on such exchange, or on the
Over-the-Counter market as reported by the National Association of Securities
Dealers Automated Quotation ("NASDAQ") system, or if the Company's Common Stock
is not traded on NASDAQ, then as reported by the National Quotation Bureau,
Incorporated, on the day on which such election is made, or, if there is no
trading or bid or asked price on that day, the closing selling price or the mean
of the closing bid and asked prices on the nearest trading date before that day
and for which such prices are available, and if the Company's Common Stock is
not listed on such exchange or traded in such market, then the fair market value
shall be determined by an independent appraiser, selected by the Board of
Directors, whose opinion shall be binding on the parties. The Company may
require, as a condition to issuing shares of the Company's Common Stock pursuant
to this paragraph 5(c), that it receive an opinion of its counsel that such
securities may be issued
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pursuant to an exemption from registration under the Securities Act of 1933, as
amended, and applicable state law. Each certificate for such securities shall
bear a legend as follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state law. The securities may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act,
or pursuant to an exemption from registration under the Act
and applicable state law."
(d) The additional compensation to be paid pursuant
to paragraph 5(b) hereof and/or the shares of the Company's Common Stock, if
any, issuable pursuant to paragraph 5(c) hereof shall be payable and/or
issuable, as the case may be, promptly following the availability of the audited
financial statements relating to the applicable fiscal year of Company. To the
extent any such fiscal year is not entirely included in the Employment Period,
because for example Employee is terminated by the Company other than in
accordance with paragraph 10(a) hereof, Employee shall receive the pro rata
portion of such additional compensation determined by multiplying the additional
compensation, computed for the applicable fiscal year, by a fraction whose
numerator is the number of days in such fiscal year included in the Employment
Period and whose denominator is the total number of days in such fiscal year.
(e) The compensation provided for herein shall be in
addition to any retirement, profit sharing, insurance or similar benefit which
may at any time be payable to Employee pursuant to any plan or policy of the
Company relating to such benefits, which additional benefits shall be made
available to Employee on the same basis as they are generally made available to
other executive officers of the Company. Such compensation shall be in addition
to any options which may be granted under any stock option plan of the Company.
(f) The Company shall reimburse Employee in
accordance with the Company's normal policies for all reasonable travel, hotel,
meal and other expenses properly incurred by him in the performance of his
duties hereunder.
(g) The Company shall provide Employee with the use
of an automobile, selected by Employee and leased by the Company, with all
expenses of operation, such as insurance, gas, oil and repair, paid for by the
Company and having a cost to the Company of up to $1,650 per month.
(h) For the purposes of this Agreement, "Pre-Tax
Income" shall mean for each fiscal year the net income of the Company and its
consolidated subsidiaries, as set forth in the audited financial statements of
the Company, for such fiscal year before any adjustment for the effect of the
additional compensation pursuant to paragraph 5(b) hereof, determined in
accordance with generally accepted accounting principles, as consistently
applied by the Company.
2. Vacation. Employee shall be entitled to four (4) weeks
vacation each fiscal year, to be taken at such time as is mutually convenient to
the Company and Employee.
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3. Death. In the event of the death of Employee during the
Employment Period, this Agreement and the employment of Employee hereunder shall
terminate on the date of the death of Employee. The estate of Employee (or such
person(s) as Employee shall designate in writing) shall be entitled to receive,
and the Company agrees to continue to pay, in accordance with the normal pay
practice of the Company, the base salary of Employee provided by paragraph 5(a),
for a period of one (1) year following the date of death of Employee.
4. Disability. In the event that Employee shall be unable to
perform because of illness or incapacity, physical or mental, the duties and
services to be performed by him hereunder for a period of one hundred and eighty
(180) consecutive days or an aggregate period of more than one hundred and
eighty (180) days in any 12-month period, the Company may terminate this
Agreement after the expiration of such period. Upon such termination, Employee
shall be entitled to receive the base salary provided by paragraph 5(a), the
additional compensation provided by paragraphs 5(b) and 5(c) and payable in
accordance with paragraph 5(d), and the additional benefits, if any, provided by
paragraph 5(e), in each instance computed up to the date of termination.
5. Non-Competition and Non-Disclosure. (a) Employee covenants
and agrees that, throughout the Employment Period and for a period of eighteen
(18) months thereafter, he will not, directly or indirectly, own, manage,
operate or control, or participate in the ownership, management, operation or
control of, any business competing directly in the United States of America with
the business conducted by the Company or any subsidiary of the Company on the
date of termination hereof; provided, however, that Employee may own not more
than 5% of the outstanding securities of any class of any corporation engaged in
any such business, if such securities are listed on a national securities
exchange or regularly traded in the Over-the-Counter market by a member of a
national securities association.
(b) Employee covenants and agrees that, throughout
the Employment Period and for a period of eighteen (18) months thereafter, he
will not directly or indirectly solicit, entice or induce any person who on the
date of termination of employment of Employee is, or within the last three
months of Employee's employment by the Company was, associated with or employed
by the Company or any subsidiary of the Company to leave the employ of or
terminate his association with the Company, or any subsidiary of the Company,
solicit the employment of any such person on his own behalf or on behalf of any
other business enterprise.
(c) Employee covenants and agrees that, throughout
the Employment Period and at all times thereafter, he will not use, or disclose
to any third party, trade secrets or confidential information of the Company,
including, but not limited to, confidential information or trade secrets
belonging or relating to the Company, its subsidiaries, affiliates, customers
and clients or proprietary processes or procedures of the Company, its
subsidiaries, affiliates, customers and clients. Proprietary processes and
procedures shall include, but shall not be limited to, all information which is
known or intended to be known only by employees of the Company, its respective
subsidiaries and affiliates or others in a confidential relationship with the
Company or its respective subsidiaries and affiliates which relates to business
matters.
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(d) If any term of this paragraph 9 is found by any
court having jurisdiction to be too broad, then and in that case, such term
shall nevertheless remain effective, but shall be considered amended (as to the
time or area or otherwise, as the case may be) to a point considered by said
court as reasonable, and as so amended shall be fully enforceable.
(e) In the event that Employee shall violate any
provision of this Agreement (including but not limited to the provisions of this
paragraph 9), then Employee hereby consents to the granting of a temporary or
permanent injunction against him by a court of competent jurisdiction
prohibiting him from violating any provision of this Agreement. In any
proceeding for an injunction and upon any motion for a temporary or permanent
injunction, Employee agrees that his ability to answer in damages shall not be a
bar or interposed as a defense to the granting of such temporary or permanent
injunction against Employee. Employee further agrees that the Company will not
have an adequate remedy at law in the event of any breach by Employee hereunder
and that the Company will suffer irreparable damage and injury if Employee
breaches any of the provisions of this Agreement.
6. Termination.
(a) The Company may terminate this Agreement without
liability (other than for the base salary provided in paragraph 5(a) accrued to
the date of termination) in the event of (i) a material breach by Employee of
the provisions of this Agreement, which breach shall not have been cured by
Employee within sixty (60) days following notice thereof by the Company to
Employee, (ii) the commission of gross negligence or bad faith by Employee in
the course of his employment hereunder, which commission has a material adverse
effect on the Company, (iii) the commission by Employee of a criminal act of
fraud, theft or dishonesty causing material damages to the Company or any of its
subsidiaries or (iv) Employee shall be convicted of (or plead nolo contendere
to) any felony, or misdemeanor involving moral turpitude if such misdemeanor
results in material financial harm to or materially adversely affects the
goodwill of the Company.
(b) Employee may terminate this Agreement without
liability at any time upon at least one (1) year prior written notice.
(c) After a Change in Control (as hereinafter
defined) has occurred, Employee may terminate his employment upon thirty (30)
days' written notice to the Company within one hundred and eighty (180) days
following such a Change in Control:
An election by Employee to terminate his employment under the
provisions of this paragraph 10(c) shall not be deemed a voluntary termination
of employment by Employee for the purpose of interpreting the provisions of any
of the Company's employee benefit plans, programs or policies. Employee's right
to terminate his employment pursuant to this paragraph 10(c) shall not be
affected by his illness or incapacity, whether physical or mental, unless the
Company shall at the time be entitled to terminate his employment under
paragraph 8 of this Agreement. Employee's continued employment with the Company
for any period of time less than six (6) months after a Change in Control shall
not be considered a waiver of any right he may have to terminate his employment
pursuant to this paragraph 10(c).
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(d) After a Change in Control has occurred, if
Employee terminates his employment with the Company pursuant to paragraph 10(c)
hereof or if Employee's employment is terminated by the Company for any reason
other than pursuant to paragraph 10(a) hereof, Employee (i) shall be entitled to
his base salary in effect at the time of such termination, the additional
compensation determined in accordance with paragraph 5(b) hereof and/or the
shares of the Company's Common Stock, if any, issuable pursuant to paragraph
5(c) hereof, bonuses, awards, perquisites and benefits, including, without
limitation, benefits and awards under the Company's stock option plans and the
Company's pension and retirement plans and programs, through the date specified
in the notice of termination as the last day of Employee's employment by the
Company (the "Termination Date") and, in addition thereto, (ii) shall be
entitled to be paid in a lump-sum, on the Termination Date, an amount of cash
(to be computed, at the expense of the Company, by the independent certified
public accountants utilized by the Company immediately prior to the Change of
Control (the "Accountants"), whose computation shall be conclusive and binding
upon Employee and the Company) equal to 2.99 times Employee's "base amount" as
defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"). Such lump-sum payment is hereinafter referred to as the
"Termination Compensation."
(e) Notwithstanding anything in this Agreement to the
contrary, Employee shall have the right, prior to the receipt by him of any
amounts due hereunder, to waive the receipt thereof or, subsequent to the
receipt by him of any amounts due hereunder, to treat some or all of such
amounts as a loan from the Company which Employee shall repay to the Company,
within ninety (90) days from the date of receipt, with interest at the rate
provided in Section 7872 of the Code. Notice of any such waiver or treatment of
amounts received as a loan shall be given by Employee to the Company in writing
and shall be binding upon the Company.
(f) It is intended that the "present value" of the
payments and benefits to Employee, whether under this Agreement or otherwise,
which are includable in the computation of "parachute payments" shall not, in
the aggregate, exceed 2.99 times the "base amount" (the terms "present value",
"parachute payments" and "base amount" being determined in accordance with
Section 280G of the Code). Accordingly, if Employee receives payments or
benefits from the Company prior to payment of the Termination Compensation
which, when added to the Termination Compensation, would, in the opinion of the
Accountants, subject any of the payments or benefits to Employee to the excise
tax imposed by Section 4999 of the Code, the Termination Compensation shall be
reduced by the smallest amount necessary, in the opinion of the Accountants, to
avoid such tax. In addition, the Company shall have no obligation to make any
payment or provide any benefit to Employee subsequent to payment of the
Termination Compensation which, in the opinion of the Accountants, would subject
any of the payments or benefits to Employee to the excise tax imposed by Section
4999 of the Code. No reduction in Termination Compensation or release of the
Company from any payment or benefit obligation in reliance upon any aforesaid
opinion of the Accountants shall be permitted unless the Company shall have
provided to Employee a copy of any such opinion that specifically entitles
Employee to rely thereon, no later than the date otherwise required for payment
of the Termination Compensation or any such later payment or benefit.
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(g) "Change of Control" as used in this Agreement
shall mean the occurrence of any of the following:
(i) any "person" or "group" (as such terms are used
in Section 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Act")), except for an employee stock ownership trust (or any of
the trustees thereof), becomes a "beneficial owner" (as such term in used in
Rule 13d-3 promulgated under the Act), after the date hereof, directly or
indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities;
(ii) a change in "control" of the Company (as the
term "control" is defined in Rule 12b-2 or any successor rule promulgated under
the Act) shall have occurred;
(iii) the majority of the Board of Directors, as
such entire Board of Directors is composed at the date of this Agreement, no
longer serve as directors of the Company, except that there shall not be counted
toward such majority who no longer serve as directors any director who ceased to
serve prior to the date of a Change in Control, for any reason, or at any other
time due to his death, disability or termination for cause;
(iv) the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
or
(v) the shareholders of the Company approve a merger
or consolidation of the Company with any other company, other than a merger or
consolidation which would result in the combined voting power of the Company's
voting securities outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 70% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation. Notwithstanding the foregoing, any transaction
involving a leveraged buyout or other acquisition of the Company which would
otherwise constitute a Change in Control, in which Employee participates in the
surviving or successor entity (other than solely as an employee or consultant),
shall not constitute a Change in Control.
7. No Impediments. Employee warrants and represents that he is
free to enter into this Agreement and to perform the services contemplated
thereby and that such actions will not constitute a breach of, or default under,
any existing agreement.
8. No Waiver. The failure of any of the parties hereto to
enforce any provision hereof on any occasion shall not be deemed to be a waiver
of any preceding or succeeding breach of such provision or of any other
provision.
9. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto and no amendment, modification
or waiver of any provision herein shall be effective unless in writing, executed
by the party charged therewith.
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10. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed by the laws of
the State of New York applicable to agreements to be wholly performed therein
without giving effect to principles of conflicts of law.
11. Binding Effect. This Agreement shall bind and inure to the
benefit of the parties, their successors and assigns.
12. Assignment and Delegation of Duties. This Agreement may
not be assigned by the parties hereto except that the Company shall have the
right to assign this Agreement to any successor in connection with a sale or
transfer of all or substantially all of its assets, a merger or consolidation.
This Agreement is in the nature of a personal services contract and the duties
imposed hereby are non-delegable.
13. Paragraph Headings. The paragraph headings herein have
been inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
14. Notices. Any notice under the provisions of this Agreement
shall be in writing, shall be sent by one of the following means, directed to
the address set forth on the first page of this Agreement or to such other
address as shall be designated hereunder by notice to the other party, effective
upon actual receipt and shall be deemed conclusively to have been given: (i) on
the first business day following the day timely deposited for overnight delivery
with Federal Express (or other equivalent national overnight courier service) or
United States Express Mail, with the cost of delivery prepaid or for the account
of the sender; (ii) on the fifth business day following the day duly sent by
certified or registered United States mail, postage prepaid and return receipt
requested; or (iii) when otherwise actually received by the addressee on a
business day (or on the next business day if received after the close of normal
business hours or on any non-business day).
15. Unenforceability; Severability. If any provision of this
Agreement is found to be void or unenforceable by a court of competent
jurisdiction, the remaining provisions of this Agreement shall, nevertheless, be
binding upon the parties with the same force and effect as though the
unenforceable part has been severed and deleted.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
EMPLOYEE:
/s/Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
COMPANY:
AMERICAN MEDICAL ALERT CORP.
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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