EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") effective as of
October 1, 1997, between Dade International Inc., a Delaware corporation
(the "Company"), and Xxxxx Xxxxxx ("Executive").
The Company is a wholly-owned subsidiary of Dade Behring
Holdings, Inc., a Delaware corporation ("Holding"). Holding and
Executive are parties to an Executive Agreement dated as of the date
hereof (the "Executive Agreement") pursuant to which Holding will grant
Executive options to acquire shares of Holding's capital stock.
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement for the period beginning on the
date hereof and ending as provided in paragraph 4 hereof (the
"Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as
the Chief Executive Officer of the Company and shall have the normal
duties, responsibilities and authority of the Chief Executive Officer,
subject to the overall direction and authority of the Company's board of
directors (the "Board").
(b) Executive shall report to the Board, and Executive shall
devote his best efforts and his full business time and attention to the
business and affairs of the Company and its Subsidiaries; provided, that
nothing in this paragraph 2(b) shall prohibit Executive from devoting a
reasonable amount of business time and attention to directorships and
charitable or other activities.
(c) For purposes of this Agreement, "Subsidiaries" shall mean
any corporation of which the securities having a majority of the voting
power in electing directors are, at the time of determination, owned by
the Company, directly or through one or more Subsidiaries.
3. Base Salary and Benefits.
(a) During the Employment Period, Executive's base salary
shall be $350,000 per annum and shall be subject to review by the Board
on an annual basis (the "Base Salary"), which salary shall be payable in
regular installments in accordance with the Company's general payroll
practices and shall be subject to customary withholding. In addition,
during the Employment Period, Executive shall be entitled to participate
in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally
eligible.
(b) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under
this Agreement which are consistent with the Company's policies in
effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company's reasonable requirements with
respect to reporting and documentation of such expenses.
(c) If Executive elects to relocate his primary residence to
the Chicago, Illinois metropolitan area during the Employment Period in
connection with his employment with the Company, the Company will
reimburse Executive in amounts to be determined and agreed upon by
Executive and the Company.
(d) In addition to the Base Salary, commencing January 1,
1998, during each year during the Employment Period, Executive will be
eligible to earn an annual target bonus of 100% of his Base Salary to be
based upon specific bonus targets to be established on an annual basis
by the Board (with specific overachievement opportunities to be made
available in the sole discretion of the Board). Such bonus targets will
generally focus on EBITDA, capital expenditure levels and working
capital targets, as established on an annual basis by the Board.
(e) In addition, upon Executive's execution and delivery of
this Agreement and the Executive Agreement, the Company will pay
Executive a one-time bonus of $100,000. The bonus described in this
Section 3(e), as well as any other bonuses payable to Executive by the
Company, shall be subject to customary withholding.
(f) In addition, Executive will be entitled to four (4) weeks
paid vacation each year during the Employment Period, in accordance with
Company policy.
4. Term.
(a) The Employment Period (i) shall terminate upon
Executive's resignation without Good Reason (as defined below), death or
Disability (as defined below), (ii) may be terminated by the Company at
any time for Cause (as defined below) or without Cause and (iii) may be
terminated upon Executive's resignation for Good Reason.
(b) If the Employment Period is terminated by the Company
without Cause or by Executive for Good Reason during the term of this
Agreement, Executive shall be entitled to receive his Base Salary
described in Section 3(a) above, for 18 months after the date of such
termination. Any such amounts payable under this Section 4(b) will be
payable at such times and in such amounts as would have been payable had
Executive not been terminated. Notwithstanding anything in this
Agreement to the contrary, the Company shall have no obligation to pay
any amounts payable under this Section 4(b) during such times as
Executive is in material breach of any provision of this Agreement
(including, without limitation, that certain Employment Agreement
Addendum dated as of the date hereof between the Company and Executive
(the "Employment Agreement Addendum")) or any provision of the
Executive Agreement. The amounts otherwise payable pursuant to this
paragraph 4(b) shall be reduced by the amount of any compensation
Executive receives with respect to any other employment during the 18
month period commencing on the date of Executive's termination. Upon
request from time to time, Executive shall furnish the Company with a
true and complete certificate specifying any such compensation due to or
received by him. As a condition to the Company's obligations (if any)
to make severance payments pursuant to this paragraph 4(b), Executive
will execute and deliver a general release in form and substance
satisfactory to the Company, except that the Company shall be obligated
to pay amounts due and owing to Executive as expressly provided by this
Agreement.
(c) If the Employment Period is terminated by the Company for
Cause or is terminated pursuant to clause (a)(i) above, Executive shall
be entitled to receive his Base Salary through the date of termination.
(d) All of Executive's rights to fringe benefits and bonuses
hereunder (if any) which accrue or become payable after the termination
of the Employment Period shall cease upon such termination. The Company
may offset any amounts Executive owes it or its Subsidiaries against any
amounts it owes Executive hereunder.
(e) For purposes of this Agreement, "Disability" (i) shall
mean any physical or mental incapacitation which results in Executive's
inability to perform his duties and responsibilities for the Company for
a total of 180 days during any twelve-month period, as determined by the
Board in its good faith judgment and (ii) shall be deemed to have
occurred on the 180th day of such inability to perform.
(f) For purposes of this Agreement, "Cause" shall mean (i)
the intentional disregard of a written direction from the Board to
Executive to which Executive has not objected within ten (10) days of
receiving such written direction, which intentional disregard is
materially injurious to the Company or any of its affiliates, (ii) the
knowing and intentional theft by Executive of property of the Company or
any of its affiliates, which property has a substantial value, (iii) the
commission by Executive of an act of moral turpitude which is materially
injurious to the Company or any of its affiliates or (iv) any material
breach of this Agreement (including, without limitation, the Employment
Agreement Addendum) or any material breach of the Executive Agreement.
(g) For purposes of this Agreement, ``Good Reason'' shall
mean (i) any substantial reduction of Executive's duties, without
Executive's written consent or (ii) a reduction by the Company of
Executive's Base Salary, as in effect on the date hereof or as the same
may be increased from time to time.
5. Employment Agreement Addendum. Each of the parties
hereto acknowledges and agrees that the Employment Agreement Addendum
which is attached hereto and is made a part hereof is an integral part
of this Agreement and that the Company would not be willing to enter
into this Agreement and provide Executive with the substantial benefits
provided herein without Executive's agreement to enter into and become
bound by the terms and conditions of the Employment Agreement Addendum,
including the Conflict of Interest, Confidentiality, Non-Competition and
Intellectual Property Rights provisions thereof.
6. Executive's Representations. Executive hereby represents
and warrants to the Company that (i) the execution, delivery and
performance of this Agreement by Executive do not and will not conflict
with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or
by which he is bound, (ii) Executive is not a party to or bound by any
employment agreement, noncompete agreement or confidentiality agreement
with any other person or entity and (iii) upon the execution and
delivery of this Agreement by the Company, this Agreement shall be the
valid and binding obligation of Executive, enforceable in accordance
with its terms. Executive hereby acknowledges and represents that he
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.
7. Survival. The terms and conditions of the Employment
Agreement Addendum shall survive and continue in full force in
accordance with their terms notwithstanding any termination of the
Employment Period.
8. Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, sent by
reputable overnight courier or mailed by first class mail, return
receipt requested, to the recipient at the address below indicated:
Notices to Executive:
Xxxxx Xxxxxx
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Notices to the Company:
Dade International Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxx Xxxxxxxxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, P.C.
or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the
sending party. Any notice under this Agreement shall be deemed to have
been given when so delivered, deposited with such courier or mailed.
9. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
10. Complete Agreement. This Agreement, those documents
expressly referred to herein and other documents of even date herewith
embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
11. No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
12. Counterparts. This Agreement may be executed in separate
counterparts, any one of which may be by facsimile and each of which is
deemed to be an original and all of which taken together constitute one
and the same agreement.
13. Successors and Assigns. This Agreement is intended to
bind and inure to the benefit of and be enforceable by Executive, the
Company and their respective heirs, successors and assigns, except that
Executive may not assign his rights or delegate his obligations
hereunder without the prior written consent of the Company.
14. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement
and the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of Illinois, without
giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other
than the State of Illinois.
15. Amendment and Waiver. The provisions of this Agreement
may be amended or waived only with the prior written consent of the
Company and Executive, and no course of conduct or failure or delay in
enforcing the provisions of this Agreement shall affect the validity,
binding effect or enforceability of this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
DADE INTERNATIONAL INC.
By: __________________________
Its:__________________________
_____________________________
XXXXX XXXXXX
