EXHIBIT 10.97
EMPLOYMENT AGREEMENT
AGREEMENT dated as of August 3, 1997, between Xxxxxx X.
Xxxxxxx (the "Executive") and XXXXX XXXXXX, INC., a Delaware corporation (the
"Company").
The Executive is presently the Chief Executive Officer of
Xxxxxxxx Dental Products, Inc. ("Xxxxxxxx").
The Company and Xxxxxxxx are parties to an Agreement and Plan
of Merger dated August 3, 1997 (the "Merger Agreement"), pursuant to which it is
contemplated that HSI Acquisition Corp., a wholly-owned subsidiary of the
Company, will be merged with and into Xxxxxxxx.
The Company desires to secure the continued services of the
Executive, and the Executive desires to continue to provide services to the
Company at and after the Effective Time, as that term is defined in the Merger
Agreement. Accordingly, the parties hereto are entering into this Agreement to
set forth and confirm their respective rights and obligations with respect to
the Executive's retention by the Company commencing as of the Effective Time.
The parties agree as follows:
1. Employment. The Company shall retain the Executive,
as of the Effective Time, and the Executive shall provide services to the
Company, subject to and upon the terms and conditions set forth in this
Agreement; provided, however, that this Agreement shall terminate and be of no
further force or effect if the Executive shall have died or, in the reasonable
judgment of the Company, become disabled (as defined in Section 7(a)(i)), or if
he is terminated by Xxxxxxxx for cause (as hereinafter defined), in any such
case, prior to the Effective Time.
2. Duties.
(a) At all times during his employment with the Company,
the Executive shall, subject to the direction and control of the Boards of
Directors of the Company and Xxxxxxxx and the President of the U.S. Dental
Division of the Company (the "Dental Division"), provide such executive services
of an advisory and consultative nature and perform such functions as he may be
called upon by such Boards to perform, consistent with his prior duties as Chief
Executive Officer of Xxxxxxxx.
(b) The Executive shall devote his full time and
reasonable best efforts to the performance of his duties hereunder; and, to the
extent requested by the Chairman of the Company or the President of the Dental
Division, render such executive services for any other
subsidiary or affiliated business of the Company. Notwithstanding the foregoing,
the Executive may devote time and effort to charitable activities (subject to
the provisions of Section 8), provided that such activities do not interfere
with the Executive fulfilling his obligations under this Agreement.
(c) The Company shall not require the Executive to
maintain his principal office anywhere other than within a 50 mile radius of
Xxxxxxxx'x principal executive offices in West Allis, Wisconsin, provided that
the Executive shall travel on the Company's behalf within and outside such area
to the extent reasonably necessary to perform his duties hereunder.
3. Compensation.
(a) The Company shall pay to the Executive for all
services to be rendered by him pursuant to this Agreement a salary at the annual
rate of One Hundred Fifty Thousand Dollars ($150,000), payable in accordance
with the Company's practices with respect to its senior executives as in effect
from time to time ("Company's Practices"). Such salary rate shall be increased
each year (beginning in 1999) by an amount determined by the Company in
accordance with the Company's Practices, but in any event such amount shall be
no less than the percentage increase in the cost of living over the preceding
year.
(b) At the Effective Time, the Executive shall be granted
options to purchase shares of common stock, par value $.01 per share ("Common
Stock"), of the Company in accordance with the stock option agreement attached
hereto as Exhibit A (the "Option Agreement").
(c) At the Effective Time, the Executive shall be paid
the sum of One Hundred Sixty Thousand Dollars ($160,000) as an inducement to
enter into this Agreement.
4. Working Conditions and Benefits. While employed by
the Company hereunder:
(a) The Executive shall be entitled to four (4) weeks of
paid vacation per year, in accordance with the Company's Practices and shall be
entitled to sick leave and personal time in accordance with the Company's
policies for its senior executives.
(b) The Executive shall be authorized to incur reasonable
and necessary expenses for promoting the business of the Company, including
expenses for entertainment, travel and similar items, all in accordance with the
Company's Practices. The Company shall reimburse the Executive for all such
expenses, upon presentation by the Executive of an itemized account of such
authorized expenditures in accordance with the Company's Practices with respect
to expense reimbursement.
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(c) The Company in accordance with Xxxxxxxx'x prior
practices (x) shall provide the Executive an automobile for business use and (y)
shall pay for certain expenses incurred in connection with such use.
(d) The Company shall provide to the Executive to the
full extent provided for under the laws of the Company's state of incorporation
and the Company's By-Laws, indemnification for any claim or lawsuit which may be
asserted against the Executive with respect to his capacity as an officer or
employee of the Company, provided that said indemnification is not in violation
of any Federal or state law, rule or regulation. The indemnification obligation
of the Company shall survive the termination of this Agreement.
5. Other Benefits. While providing services to the
Company hereunder the Executive shall be entitled to participate in all benefit,
welfare and perquisite plans, policies and programs, in accordance with the
terms thereof and in accordance with the Company's Practices (the "Benefit
Programs").
6. Term. The Executive's employment hereunder shall
commence at the Effective Time and shall continue until the earlier of (a) the
third anniversary of the Effective Time, (b) his death, or (c) termination of
employment pursuant to Section 7 hereof.
7. Termination.
(a) Notwithstanding anything herein contained, if on or
after the Effective Time and prior to the third anniversary of the Effective
Time, (i) the Executive shall have been determined by the Board of Directors of
the Company to have become "Permanently Disabled" or (ii) the Executive shall
have furnished the Company with Cause for his discharge then, and in any such
case, the Company shall have the right, by notice given to the Executive to
terminate the Executive's employment as of a date to be specified in such
notice. Cause shall be defined as: (A) the Executive shall be convicted of a
felony involving fraud, dishonesty or moral turpitude (other than ordinary
traffic infractions), (B) action by the Executive involving willful malfeasance
having a material adverse effect on the Company, or (C) any other willful action
by the Executive constituting a material breach of this Agreement which causes
or is reasonably likely to cause material economic or reputational injury to the
Company or its affiliates. For purposes hereof, the term "Permanently Disabled"
shall mean a condition (certified by two licensed physicians, one selected by
the Company and one by the Executive and each reasonably satisfactory to the
other party) rendering the Executive unable to perform his responsibilities
under this Agreement for a period of 180 days, whether or not continuous, in any
period of 12 months.
(b) Upon the Executive's death, termination of the
Executive's employment pursuant to Section 7(a) or the voluntary termination of
his employment hereunder, the Executive (or his estate, as the case may be)
shall be entitled to receive only his salary at the rate provided in Section
3(a) to the date of termination.
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(c) Upon termination of the Executive's employment
hereunder by the Company without Cause the Executive shall be entitled to
receive (i) his annual compensation at the rate provided in Section 3(a) to the
date of termination, (ii) continuation of the Executive's annual compensation
for a period after the date of such termination equal to the unexpired term of
this Agreement but in no event less than twelve months at the rate in effect at
such date of termination and (iii) for a period following such termination equal
to the unexpired term of this Agreement, continuation of the participation of
the Executive and his spouse and dependent children, if any, in all health and
medical benefit plans, policies and programs in effect from time to time with
respect to the most senior executive officers of the Company and their families
generally (at the same levels and at the same cost, if any, as provided to such
officers generally).
8. Confidentiality and Non-Competition. In view of the
unique and valuable services it is expected the Executive will render to the
Company, the Executive's knowledge of the customers, trade secrets, and other
proprietary information relating to the business of the Company and its
customers and suppliers and in consideration of (i) Five Hundred Fifty Thousand
Dollars ($550,000) payable within 60 days of the third anniversary of the date
of this Agreement and (ii) the compensation to be received hereunder, the
Executive agrees that he will not, during his employment with the Company and
for five years thereafter except on behalf of the Company: (a) directly or
indirectly engage or have an interest (whether as owner, partner, lender,
consultant, employee, agent, supplier, distributor or otherwise) in any
business, activity or enterprise which competes with any material businesses or
operations of the Company or any of the Company's affiliates (including
Xxxxxxxx) at any time during his employment with the Company; (b) directly or
indirectly employ or otherwise engage, or offer to employ or otherwise engage,
any person who is then (or was at anytime within three months prior to the time
of such employment, engagement or offer thereof) an employee, sales
representative or agent of the Company or any of the Company's affiliates
(including Xxxxxxxx); or (c) solicit any business from any person or entity that
during his employment with the Company has been a customer of the Company or any
of the Company's affiliates (including Xxxxxxxx) or directly or indirectly
induce or influence any customer, supplier or other person that has a business
relationship with the Company or any of the Company's affiliates (including
Xxxxxxxx) to discontinue or reduce the extent of such relationship with the
Company or any of the Company's affiliates (including Xxxxxxxx). In addition,
the Executive shall never use or divulge (unless available in the public domain
not due to the Executive's disclosure in violation of this Agreement) any trade
secrets, customer or supplier lists, pricing information, marketing arrangements
or strategies, business plans, internal performance statistics, training manuals
or other information concerning the Company or its affiliates that is
confidential, except on behalf of the Company, and shall not knowingly make
false or misleading or negative statements, either orally or in writing, about
the Company or its affiliates (including Xxxxxxxx), or their respective
directors, officers or employees. Because the breach or attempted breach of this
Section 8 will result in immediate and irreparable injury to the Company for
which the Company will not have an adequate remedy at law, the Company shall be
entitled, in addition to all other remedies, to a decree of specific performance
of this covenant and to a temporary and permanent injunction enjoining such
breach, without posting bond or furnishing similar security. The provisions of
this Section 8 are in addition to and independent of any agreements or covenants
contained in any other agreement between the Company and the
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Executive. If any restriction contained in this Section 8 shall be deemed to be
invalid, illegal, or unenforceable by reason of the extent, duration, or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, geographical
scope, or other provisions hereof, and in its reduced form such restriction
shall then be enforceable in the manner contemplated hereby. Notwithstanding the
foregoing the Executive (i) may have an interest (whether as owner, partner,
lender, consultant, employee or agent, but not as a distributor or supplier) in
any manufacturer that sells its products exclusively and directly to health care
practitioners rather than through distributors or (ii) hold up to 2% of the
outstanding shares of any class of stock of a publicly traded entity.
9. Amendment and Modification; Waiver. This Agreement
may be amended, modified or supplemented only by written agreement (referring
specifically to this Agreement) of the parties. The waiver by either party of
any breach or violation of any provision of this agreement shall not operate or
be construed as a waiver of any subsequent breach.
10. Notice. All notices required to be given under the
terms of this Agreement shall be in writing and shall be deemed to have been
duly given if delivered to the addressee in person or mailed by certified mail,
return receipt requested, as follows:
If to the Company, addressed to:
Xxxxx Xxxxxx, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to the Executive, addressed to:
Xxxxxx X. Xxxxxxx, President Emeritus
U.S. Dental Division
Xxxxxxxx Dental Products, Inc.
00000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx 00000
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With a copy to:
Xxxxx, Xxxxx & Ryd
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
or to any such other address as the party to receive the notice shall advise by
due notice given in accordance with this paragraph.
11. Further Agreement. In the event that any amounts paid
or payable to the Executive pursuant to this Agreement shall adversely affect
the qualification of the Merger (as defined in the Merger Agreement) as a
pooling of interests, then the Company and the Executive shall endeavor in good
faith to modify such payments so that they will not adversely affect the Merger
as a pooling of interests for financial reporting purposes; provided, however,
that the parties shall, in any event, carry out the intent of this Agreement.
12. Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. Entire Agreement; Benefit. This Agreement constitutes
the entire agreement and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and all prior employment or other compensation or
compensation continuation agreements and arrangements between the Executive and
Xxxxxxxx. This Agreement shall inure to and shall be binding upon the parties
hereto, the successors and assigns of the Company and the heirs and personal
representatives of the Executive.
14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to the provisions thereof relating to conflicts of law.
15. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
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Xxxxxx X. Xxxxxxx
XXXXX XXXXXX, INC.
By:
---------------------------------
Authorized Officer
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