This NonCompetition Agreement involves
Title: SEVERANCE AND NON-COMPETE AGREEMENT
Governing Law: Ohio Date: 2/13/2004
SEVERANCE AND NON-COMPETE AGREEMENT
This SEVERANCE AND NON-COMPETE AGREEMENT (this "AGREEMENT") is made as of
May 21, 2003, by and between Medex, Inc., an Ohio corporation (the "COMPANY"),
and Dr. Georg Landsberg (the "EXECUTIVE").
WHEREAS, the Company desires to continue the employment of the Executive
with Medex Medical Holding GmbH ("GmbH"), and the Executive desires to remain
employed by GmbH, in accordance with terms and conditions set forth herein;
WHEREAS, during the course of such employment, the Executive will
participate in the development of, and will be privy to, proprietary and
confidential information of MedVest Holdings Corporation ("MEDVEST"), the
Company and its Subsidiaries (collectively, the "MEDVEST ENTITIES" and,
individually, an "MEDVEST ENTITY"), including without limitation, trade secrets,
customer lists, strategic business plans, pricing and billing practices,
relationships with vendors and know-how involved in the operation of the
Company's and its Subsidiaries' businesses (collectively, the "CONFIDENTIAL
WHEREAS, to obtain the services of the Executive and to protect the
Confidential Information and goodwill of the MedVest Entities, the parties
desire to execute and deliver this Agreement; and
WHEREAS, the Executive will derive substantial benefits from this
NOW, THEREFORE, 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, intending to be legally bound,
hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company will cause GmbH to employ the Executive as the
Senior Vice President of European Operations and the Executive hereby accepts
and agrees to serve GmbH in the capacities described in SECTION 1(b), and in
such other capacities to which the Executive may be appointed consistent with
SECTION 3, in accordance with the terms and conditions hereinafter set forth.
(b) The Executive shall initially have the duties,
responsibilities and authority customary to an employee serving as the Senior
Vice President of European Operations. The Executive shall report to and take
direction from the Chief Executive Officer of the Company.
(c) Excluding reasonable vacations compatible with the Executive's
position and periods of illness, injury or other disability, the Executive shall
give his best efforts and devote substantially all of his business time and
attention to the business and interests of the
MedVest Entities. The Executive shall devote his business time, abilities and
attention to these activities and shall perform his duties in a professional,
ethical and businesslike manner.
(d) For purposes of the Agreement, (i) "SUBSIDIARIES" shall mean,
with respect to any Person, any corporation or other entity of which the equity
securities or other ownership interests having the voting power to elect a
majority of the board of directors or other governing body are, at the time of
determination, owned by such Person, directly or through one or more
Subsidiaries and (ii) "PERSON" shall mean a natural person, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization or other entity, or a
governmental entity or any department, agency or political subdivision thereof.
2. TERM OF EMPLOYMENT. The term of the Executive's employment shall be
at will and nothing in this Agreement shall provide Executive with any
contractual right to continued employment.
3. COMPENSATION AND BENEFITS. Initially, the Company shall pay or cause
GmbH to pay to the Executive, and the Executive shall accept from the Company or
GmbH, as full compensation for the Executive's services, compensation as
(a) BASE SALARY. The Executive shall be paid a base annual salary
equal to Euro 225,000.00 which shall be paid in accordance with the payroll
practices of the Company or GmbH as in effect from time to time (the "BASE
(b) ANNUAL BONUS. The Executive shall be entitled to receive an
annual year-end performance bonus determined in accordance with the procedures
and terms of the Company's or GmbH's performance bonus system in place
immediately prior to the date hereof (the "PERFORMANCE BONUS"). The Performance
Bonus shall be paid in accordance with the standard practices of the Company or
GmbH regarding such payments as in effect from time to time.
(c) OTHER BENEFITS. The Executive shall be entitled to the regular
benefits and perquisites in place for executives of the Company or GmbH
immediately prior to the date hereof, except to the extent that a benefit may be
reduced in the future for all applicable executives of the Company or GmbH with
the prior approval of the Chief Executive Officer.
(d) REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall
reimburse the Executive for all reasonable expenses necessarily incurred by him
in connection with the performance of the Executive's duties hereunder upon
presentation of a voucher indicating the amount and business purpose and
supported by appropriate documentation, subject, however, to the Company's or
GmbH's written employee reimbursement policies and procedures relating to
business related expenses, if any, as in effect from time to time.
4. NON-COMPETE, NON-SOLICITATION.
(b) NON-COMPETE. The Executive covenants and agrees that for such
period as he shall be employed by any MedVest Entity and, in the event this
Agreement is terminated (other than by Executive pursuant to SECTION 5(g) due to
a breach of this Agreement by the
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Company or GmbH), whether voluntarily or involuntarily, for a period of
twenty-four (24) months after such termination (the "NONCOMPETE PERIOD"), the
Executive will not, without the prior written consent of the Company's Board of
Directors, either directly or indirectly through another Person, whether as
principal or as agent, officer, director, employee, consultant, stockholder,
investor (other than as a passive owner of not more than five percent (5%) of
any class of securities traded on a national or regional stock exchange) or
otherwise, alone or in association with any other Person, carry on, manage,
control, consult with, render services for, or be engaged, concerned or take
part in, or render like services to, or own any interest or share in earnings of
any Person competing with the businesses of the MedVest Entities, as such
businesses exist or are in process on the date of such termination, within any
geographical area in which the MedVest Entities engage at the time of
termination in such businesses.
(c) NON-SOLICITATION. During the Noncompete Period, the Executive
shall not directly or indirectly through another Person (i) induce or attempt to
induce any employee of any MedVest Entity to leave the employ of such MedVest
Entity, or in any way interfere with the relationship between any MedVest Entity
and any employee thereof, (ii) hire any person who is an employee of any MedVest
Entity at the time of termination, or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business relation of
any MedVest Entity to cease doing business with any such MedVest Entity, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and any MedVest Entity (including, without
limitation, making any statement which is intended or reasonably calculated to
disparage or discredit any MedVest Entity).
(d) ENFORCEMENT. If, at the time of enforcement of this SECTION 4,
a court shall hold that the duration, scope or area restrictions stated herein
are unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. The Executive acknowledges that the
restrictions contained in this SECTION 4 are reasonable and that he has reviewed
the provisions of this Agreement with his legal counsel.
(e) REMEDIES AND EQUITABLE RELIEF. In the event of the breach or a
threatened breach by the Executive of any of the provisions of this SECTION 4,
the Company, in addition and supplementary to other rights and remedies existing
in its favor, shall be entitled to specific performance and/or injunctive or
other equitable relief from a court of competent jurisdiction in order to
enforce or prevent any violations of the provisions hereof (without posting a
bond or other security). In addition, in the event of a breach or violation by
the Executive of this SECTION 4, the Noncompete Period shall be tolled until
such breach or violation has been duly cured.
5. TERMINATION. Employment of the Executive may terminate for any of
the following reasons.
(a) MUTUAL AGREEMENT. By the mutual, written agreement of the
Company or GmbH and the Executive.
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(b) DEATH OR DISABILITY. Automatically upon the death or
disability of the Executive. The Executive will be deemed to be "disabled" if
the Board determines in good faith that the Executive is unable to substantially
perform with reasonable accommodation the duties hereunder by reason of
disability or incapacity due to physical or mental illness, for a period in
excess of one hundred eighty (180) consecutive days in any twelve (12) month
period or one hundred eighty (180) days in the aggregate in any twenty-four (24)
month period. The Executive's employment may be terminated by the Company or
GmbH pursuant to this paragraph only if the Executive does not return to work
within and for a continuous period of at least thirty (30) days after a notice
of termination has been provided to the Executive by the Company or GmbH.
(c) CAUSE. By the Company or GmbH at any time for "cause". For
purposes of this Agreement, "CAUSE" shall mean the occurrence of one or more of
the following events in each case as determined by a two-thirds vote of the
disinterested members of the Board in good faith:
(i) the commission of a felony or the commission of any act
or omission involving dishonesty, disloyalty or fraud with respect
to and damaging any of the MedVest Entities;
(ii) chronic drug or alcohol abuse or other repeated conduct
causing any of the MedVest Entities substantial public disgrace or
disrepute or economic harm; or
(iii) the continued failure by the Executive substantially to
perform his duties hereunder (other than as a result of total or
partial disability or incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered to
the Executive by the Company or GmbH, which demand identifies the
manner in which the Company or GmbH, believes that the Executive has
not substantially performed his duties.
(d) BY EXECUTIVE. By the Executive upon thirty (30) days' written
notice to the Company and GmbH.
(e) RETIREMENT. Au