EXHIBIT 10.44
EMPLOYMENT AGREEMENT
AGREEMENT dated June 23, 1994 between NATIONAL HEALTH
LABORATORIES INCORPORATED, a Delaware corporation (the
"Company"), and Haywood D. Cochrane, Jr. (the "Executive").
The Company desires to employ Executive and Executive
desires to be in the employ of the Company upon the terms set
forth herein.
Accordingly, the parties agree as follows:
1. Employment Term. The Company agrees to employ the
Executive and the Executive agrees to be in the employ of the
Company, for the period commencing on June 22, 1994 and ending on
June 21, 1995, or such later date to which the Executive's
employment may be extended as provided in Section 5 hereof (the
"Term").
2. Duties and Responsibilities. The Executive's duties
and responsibilities shall be as may be assigned to the
Executive. The Executive shall devote full working time and
attention to the Executive's duties and responsibilities
hereunder, and his principal employment location shall be La
Jolla, California. The Executive shall report directly to the
President and C.E.O.
3. Salary. During the Term, for all services provided
hereunder, the Executive shall receive a salary, payable monthly,
subject to discretionary increases in accordance with the
Company's normal review policies and procedures. The Executive
shall be eligible to participate in the executive bonus plan or
plans applicable to similar executives of the Company from time
to time. The Executive shall be eligible to receive an annual
bonus of up to and including an amount equal to Five-hundred
Thousand Dollars ($500,000.00) pursuant to such bonus plan or
plans. Initial base salary shall be Five Hundred Thousand
Dollars ($500,000.00) per year.
4. Benefits.
(a) During the Term, the Executive shall be eligible
to participate in all pension, insurance, medical, disability and
other like benefit plans made available generally to executives
of the Company of the Executive's level, whether presently in
effect or adopted hereafter during the Term.
(b) During the term, the Company shall reimburse the
Executive for reasonable and necessary expenses related to the
Executive's performance under this Agreement, including expenses
associated with Executive's initial relocation to his principal
employment location, upon submission of detailed vouchers
therefor in accordance with the Company's standard practices in
effect from time to time.
(c) During the Term, the Company shall provide the
Executive with a car allowance in accordance with the Company's
standard practice in effect from time to time.
(d) The Executive shall be entitled to four weeks'
vacation per year.
(e) The Executive shall receive Two Hundred Thousand
(200,000) stock options in NHL common stock, effective July 12,
1994 as to one-third (1/3) of such shares, July 12, 1995 as to
one-third (1/3) of such shares and July 12, 1996 as to the
balance of such shares issued as part of the 1994 Stock Option
Plan. Notwithstanding any termination of Executive's employment
on or prior to December 22, 1994, such option shall remain
exercisable as to one-third of such shares until at least January
22, 1995, and shall otherwise be exercisable on terms consistent
with the foregoing and not less favorable than those generally
applicable to options issued by the Company under its 1994 Stock
Option Plan.
5. Extension of Time. If neither party gives to the other
party notice of termination on or before the 90th day prior to
the date of expiration of the Term hereof, the Term shall
continue from year to year unless either party gives notice of
termination on or before the 90th day prior to the expiration of
the Term hereof. If the Company gives notice of termination on
or before the 90th day prior to the expiration of the Term
hereof, then, following the end of the Term, the Executive shall
be entitled to normal severance in accordance with the policies
of the Company in effect from time to time.
6. Termination.
(a) The Company shall have the right to terminate the
Term at any time immediately by written notice for cause or in
the event of the Executive's death or disability. As used
herein, (i) "cause" shall mean the Executive's material breach of
the terms of this Agreement, the Executive's commission of a
felony or an act which is materially detrimental to the Company's
reputation, or his habitual neglect of his duties under this
Agreement, and (ii) "disability" shall mean the Executive's
inability to perform in accordance herewith by reason of mental
or physical disorder or injury constituting "long-term
disability" for purposes of the Company's medical and long-term
disability plans in effect from time to time.
(b) In the event of the Company's material breach of
the terms of this Agreement, the Executive shall have the right
to terminate the Term at any time immediately by written notice.
7. Payment Upon Termination.
(a) In the event that the Company shall terminate the
Term pursuant to Section 6(a) hereof, the Company shall have the
right to terminate all further payments pursuant hereto, except
as provided in Section 11(a) hereof (unless the Executive has
died), and shall have no further obligations hereunder.
(b) In the event that the Company shall terminate the
Term otherwise than pursuant to Sections 5 or 6(a) hereof or the
Executive shall terminate the Term pursuant to Section 6(b)
hereof, then, except as provided in Section 8 hereof, the
Company's sole obligations under this Agreement and the severance
policies and procedures of the Company in effect from time to
time shall be (i) to continue to pay to the Executive, in monthly
installments, the Executive's salary at the rate in effect
pursuant to Section 3 on the date of termination, through the
date on which the Term should expire pursuant to Sections 1 or 5
hereof, as if the Company had given notice of termination
pursuant to Section 5 hereof, and (ii) to pay the compensation
set forth in Section 11(a) hereof (unless the Executive has
died).
8. Benefits Continuation. Upon any termination of the
Executive's employment as provided in Section 7(b) hereof, the
Executive's employment shall nevertheless be deemed to continue
for a period of 90 days after such termination of employment for
purposes of determining the Executive's coverage under the
medical plan and group life insurance programs of the Company or
its assignee as then in effect.
9. Mitigation. The Executive shall not be required to
mitigate the amount of any payments provided for in Section 7(b)
hereof by seeking other employment or a consultancy with any
other entity or otherwise, but the Executive shall notify the
Company of any employment or consultancy engaged in by the
Executive during the period covered by any payments provided for
in Section 7(b) hereof, and the amounts payable pursuant to
Section 7(b) shall not be reduced by the amount of any salary,
discretionary bonus or fees so paid or payable in connection with
such employment or consultancy during such period.
10. Non-Alienation. The Executive shall not have any right
to pledge, hypothecate, anticipate or in any way create a lien
upon any payment or benefits provided under this Agreement, and
no such payment or benefits shall be assignable in anticipation
of payment either by voluntary or involuntary acts, or by
operation of law.
11. Confidentiality; Agreement Not to Compete. The
Executive recognizes that the services to be performed by him
hereunder are special, unique and extraordinary, and that by
reason of such employment the Executive has acquired and will
acquire confidential information and trade secrets concerning the
Company's operations and the operations of its affiliates.
Accordingly, it is agreed that:
(a) During the Term and for a period of twenty-four
(24) months following the expiration of the Term, including any
period during which payments provided for in Section 7(b) hereof
are made, the Executive will not, directly or indirectly, as an
officer, director, stockholder, partner, associate, owner,
employee, consultant or otherwise, become or be interested in or
associated with (although the Executive may conduct activities
during said period to seek employment or a consultancy) any other
corporation, firm or business that competes with a business of
the Company or with any of its affiliates to which the Executive
has been assigned and for which the Executive had rendered
substantial services in any geographical areas in which the
Company or any of such affiliates are then so engaged, provided
that the Executive's ownership, directly or indirectly, of not
more than one percent of the issued and outstanding stock of a
corporation, the shares of which are regularly traded on a
national securities exchange or in the over-the-counter market,
shall not, in any event, be deemed to be a violation of the
provision of this Section 11(a). As consideration for the
Executive's agreement contained hereinabove, the Company, at its
sole and absolute discretion, during the twenty-four (24) month
period following the expiration of the Term, may pay the
Executive, in equal monthly installments, an amount equal to one-
half (1/2) of the Executive's salary at the rate in effect on the
date of expiration of the Term hereof. (Failure to make such
payments relieves the Executive of any future obligations under
Section 11 of this Agreement.) Provided, however, during said
twenty-four (24) month period, the Executive shall not be
considered an employee of the Company and, except as provided in
Section 8 hereof, shall not be entitled to any of the benefits
plans made available generally to executives of the Company of
the Executive's level; and, provided further, the Company shall
not be obligated to make the payments to Executive, as provided
hereinabove, in the event of any violation by the Executive of
the restrictions set forth hereinabove.
(b) The Executive shall not divulge to any entity or
person (other than the Company's assignees and its affiliates)
during the Term or for a period of two (2) years thereafter any
information acquired by the Executive concerning the Company's or
its affiliates' customer lists, research or development programs
or plans, processes, methods or any other of its or their trade
secrets, except information which is available to the public in
published literature or becomes public knowledge through no fault
of the Executive. The Executive acknowledges that all
information the disclosure of which is prohibited hereby is of a
confidential and proprietary character and of great value to the
Company and, upon the expiration or sooner termination of this
Agreement, the Executive shall forthwith deliver up to the
Company all records, memoranda, data and documents of any
description which refer or relate in any way to such information
and return to the Company any of its equipment and property which
may then be in the Executive's possession or under the
Executive's personal control. The Executive agrees also during
the Term and for a two (2) year period thereafter not to disclose
the existence or the terms of this Agreement to any person, other
than the Executive's immediate family, the Executive's attorneys,
accountants and other professional advisors, lenders, or a
prospective employer permitted hereby, except as otherwise
required by law.
(c) The Executive agrees that because he is rendering
services of a special, unique and extraordinary character,
damages would not be an adequate or reasonable remedy for breach
of his obligations under this Agreement. Accordingly, in the
event of a breach or threatened breach by the Executive of the
provisions of Section 11 of this Agreement, the Company shall be
entitled to an injunction restraining the Executive from
violating the terms hereof, or from rendering services to any
person, firm, corporation, association or other entity to whom
any confidential information, trade secrets, or proprietary
materials of the Company have been disclosed or are threatened to
be disclosed, or for whom the Executive is working or rendering
service, or threatens to work or render services. Nothing herein
shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened
breach of this Agreement, including the right to terminate any
payments to the Executive pursuant to this Agreement or the
recovery of damages from the Executive. The Executive agrees
that the issuance of the injunction described in this paragraph
may be without the posting of any bond or other security by the
Company.
12. Notices. Any notice to be given hereunder will be
deemed sufficient if given in writing and delivered either
personally or sent by certified mail to the Executive at the
Executive's address set forth in the records of the Company, and
to the Company at its principal offices, Attention: President,
or in either case to such other persons or addresses as either
party may request by written notice.
13. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the local laws of the
State of New York applicable to agreements made and to be
performed entirely within such State.
14. Assignment. This Agreement may be assigned by the
Company to any affiliate of the Company or to any non-affiliate
of the Company that shall succeed to the business and assets of
the Company. In the event of any such assignment, the Company
shall cause such affiliate or non-affiliate, as the case may be,
to assume the obligations of the Company hereunder, by a written
agreement addressed to the Executive, concurrently with any
assignment with the same effect as if such assignee were the
"Company" hereunder. This Agreement is personal to the Executive
and the Executive may not assign any rights or delegate any
responsibilities hereunder without the prior approval of the
Company.
15. Covenant Not to Sue. In the event of any breach of
this Agreement by the Company, whether or not by or through any
of its officers, directors, employees or shareholders, the
Executive hereby covenants, warrants and agrees that he shall not
directly or indirectly sue or bring any legal action against, or
attempt to obtain any injunction or other legal or equitable
remedy against any shareholder, director, officer or employee of
the Company or of any firm or corporation affiliated with the
Company, it being understood that his sole right of action shall
be against the Company as a corporation.
16. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors, heirs and permitted assigns. This Agreement may not
be altered, modified, changed or discharged except in writing,
signed by both of the parties.
17. Entire Agreement. This Agreement supersedes the
Executive's employment agreement with Allied Clinical
Laboratories, the Company's subsidiary, which will be of no
further force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
NATIONAL HEALTH LABORATORIES INCORPORATED
By:/s/James R. Maher
--------------------
James R. Maher
President and Chief Executive Officer
/s/Haywood D. Cochrane, Jr.
-----------------------
Haywood D. Cochrane, Jr.
Executive