EXHIBIT 10.22
EXECUTIVE
EMPLOYMENT AGREEMENT
P R E A M B L E
This Executive Employment Agreement defines the essential terms and
conditions of our employment relationship with you. The subjects
covered in this Agreement are vitally important to you and to the
Company. Thus, you should read the document carefully and ask any
questions before signing the Agreement. Given the importance of these
matters to you and the Company, all executives shall sign the Agreement
as a condition of employment.
This Agreement, dated and effective this 19th day of December, 2000,
between Hill-Rom, Inc., an Indiana corporation (the "Company"), and R. Ernest
Waaser, ("Executive").
W I T N E S S E T H:
The Company desires to employ Executive as well as to safeguard the
Company against disclosure or use of trade secrets or confidential data and to
obtain a non-compete agreement; and
In the course of Executive's employment, it will be necessary for
Executive to acquire knowledge of trade secrets and confidential data of the
Company; and
Executive desires from the Company agreement on certain conditions
regarding his employment and the termination of the employment relationship if
the parties part ways;
NOW, THEREFORE, in consideration of Executive's employment by the
Company and the other benefits provided Executive under this Agreement and the
mutual covenants herein contained, the parties agree as follows:
1. Employment. The Company agrees to employ Executive and Executive agrees
to serve as President and CEO. Executive's employment with the Company
is at-will which means he may terminate his employment at any time, for
any reason, with or without notice. Likewise, the Company has the right
to terminate Executive's employment at any time for any reason not
prohibited by law upon the terms and conditions set out in the
Agreement. Nothing in this Agreement is intended to create and should
not be interpreted to create an employment contract for any specified
length of time between Executive and the Company.
2. Compensation. The Company shall pay Executive for his services,
compensation as follows:
(a) A base salary at the rate of $12,500 bi-weekly, less usual and
ordinary deductions, annualized at $325,000.
(b) Incentive compensation, payable solely at the discretion of
the Company, pursuant to the Company's Exempt Employee
Executive Compensation Program.
(c) Such additional compensation, benefits and perquisites as the
Company, in its discretion, may deem appropriate. (The initial
package of additional benefits and perquisites is outlined in
the attached offer letter and incorporated herein by
reference. However, the Parties agree that nothing contained
herein shall be construed to prohibit or otherwise restrict
the Company from exercising its sole discretion to eliminate
or modify any such benefits at any time as it sees fit.)
Notwithstanding anything contained herein to the contrary, the Company
maintains the right to change Executive's compensation structure,
including but not limited to, eliminating a compensation component, and
any other changes the Company deems appropriate in its sole discretion.
3. Duties. Executive shall at all times faithfully and diligently perform
his obligations under this Agreement and act in the best interest of
the Company and its affiliated companies including any parent or
subsidiaries (hereinafter jointly referred to as the "Companies").
Executive's duties shall be to act in such office or capacity as the
Company may request from time to time and Executive agrees to perform
all duties necessary or advisable in order to carry out such functions
in an efficient manner. Executive's duties and responsibilities at all
times shall be subject to the authority of the Board of Directors of
the Company and such officers and agents thereof to whom authority may
be delegated thereby, and/or curtailed at any time. Executive shall at
all times devote his full time, best efforts and ability, skill, and
attention exclusively to the furtherance of the business objectives and
interests of the Company, all to the exclusion of other employers or
interests or their products and services. Executive shall not engage in
any gainful employment other than under this Agreement without the
prior written consent of the Company. In addition, Executive shall at
all times act in accordance with the Hillenbrand Industries, Inc.
Handbook of Ethical Business Conduct and Corporate Compliance Handbook.
4. Warranties and Indemnification. Executive warrants that he is not a
party to any restrictive covenant, contract or other agreement limiting
or otherwise adversely affecting his employment with the Company.
Executive further agrees to indemnify and hold the Company harmless
from any and all claims arising from, or involving the enforcement of,
any such restrictive covenants or other agreements.
5. Termination of Employment. Because Executive is an at-will employee,
his employment may be terminated at any time, without cause, by
Executive or the Company upon sixty (60) days written notice or pay in
lieu of notice. Executive's employment may be terminated at any time,
without notice, for cause. For purposes of this Agreement, cause shall
be defined to include but shall not be limited to things such as
dishonesty, nonperformance of duties, violation of Company policy or
procedures, conviction of a felony, violation of the Hillenbrand
Industries, Inc. Handbook of Ethical Business Conduct, or disloyalty or
a failure to act or not act in accordance with the direction of the
Company.
If, because of disability, Executive becomes unable to perform
the essential functions of his position, with or without reasonable
accommodation, Executive's employment shall be terminated. However,
Executive may be entitled to benefits under the Company's regular
fringe benefit programs if he meets the eligibility criteria of such
programs.
If Executive's employment terminates for whatever reason,
prior to the end of the fiscal year, Executive shall not be entitled to
any of the compensation, benefits and perquisites
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identified in Paragraphs 2(b) and (c) above for any portion of such
fiscal year which have not already been paid to Executive as of the
date of his separation.
6. Severance Payments. Subject to the terms and conditions set out below,
if Executive's employment with the Company is terminated without cause,
the Company shall pay Executive severance pay based upon his base
salary at the time of termination for a period of twelve (12) months.
No severance pay shall be paid if Executive voluntarily leaves
the Company's employ or is terminated for cause.
Moreover, any severance pay payable hereunder shall be offset
against any amount of notice pay paid pursuant to Paragraph 5 and is
contingent upon Executive complying with the covenants and agreements
of Paragraphs 7 through 10 and executing a Termination and Release
Agreement in a form not substantially different from that attached to
the Agreement as Exhibit A.
7. Protection of the Company's Business. Executive acknowledges that in
the course of his employment he will acquire knowledge of trade secrets
and confidential data of the Company. Such trade secrets and
confidential data may include but are not limited to confidential
product information, customer lists, technical information, methods by
which the Company proposes to compete with its business competitors,
secret strategic plans, confidential reports prepared by business
consultants which may reveal strengths and weaknesses of the Company
and its competition, and similar information relating to the Company's
products, customers, strategies, and operations, which trade secrets
and confidential data pertain to its operations throughout the United
States and the world but maintain their situs in Indiana. In order to
perform his obligations under this Agreement, Executive must
necessarily learn such trade secrets and confidential data, all of
which are extremely important to the Company, are not known outside the
business of the Company, are known only to a limited group of its top
executives and directors, are protected by strict measures to preserve
secrecy, are of great value to the Company, are the result of the
expenditure of money, time and effort thereby, are difficult for an
outsider to duplicate, and disclosure of which would be extremely
detrimental to the Company. Executive agrees to keep all such trade
secrets or confidential data secret and not to release such information
to persons not authorized by the Company to receive such secrets and
data, both during his employment with the Company and at all times
thereafter. Executive acknowledges that trade secrets and confidential
data need not be expressly marked as such by the Company.
8. Documents, Inventions, Etc. All records, files, drawings, documents,
equipment, and the like relating to the Company shall be and remain the
sole property of the Company. Executive, on the termination of his
employment hereunder, shall immediately return to the Company all such
items without retention of any copies. De minimis items such as pay
stubs, 401(k) plan summaries, employee bulletins, and the like are
excluded from this requirement. Executive shall fully and promptly
disclose to the Company all ideas, conceptions, inventions,
discoveries, and designs that are conceived or contemplated by him
within the scope of his employment and pertaining to the business of
the Company (whether alone or with others and whether patentable or
unpatentable hereinafter called "Inventions") and shall assign to the
Company his entire right, title and interest in and to the Inventions.
Executive shall take all reasonable action requested by the Company to
protect, obtain title to and/or patent in any country in the name of
the Company or its nominee, any of such Inventions, including execution
and delivery of all applications, assignments and other papers deemed
necessary by the Company, provided he is reimbursed reasonable expenses
incurred by him in so doing.
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9. Limited Non-Competition. During Executive's employment and thereafter
if said employment should end for whatever reason, it is very important
to the Company to protect its legitimate business interests by
restricting Executive's ability to compete with the Company in a
limited manner. Therefore, this provision is drafted narrowly so as to
be able to safeguard the Company's legitimate business interests while
not unreasonably interfering with Executive's ability to obtain
alternate employment. Executive acknowledges that this limited
non-competition provision is not an attempt to prevent him from
obtaining other employment.
(a) During At-Will Employment By Company. During Executive's
employment by the Company, Executive shall not, directly or
indirectly, have any ownership interest in, work for, advise,
manage, or act as an agent or consultant for, or have any
business connection or business or employment relationship
with any person or entity that competes with the Company or
that contemplates competing with the Company without the prior
written approval of an executive officer of the Company.
(b) During Two Year Post-Employment Period. For a period of two
(2) years after Executive's separation from the Company
(regardless of the reason for the separation), he shall not:
(i) directly or indirectly have any ownership interest in
any entity or person engaged in research,
development, production, sale or distribution of a
product or service which competes with or is
substantially similar to any product or service in
research, development or design, or manufactured,
produced, sold or distributed by the Company, within
the geographical area in which Executive has been
performing services on behalf of the Company or for
which he has been assigned responsibility at anytime
within the twenty-four (24) months preceding his
separation.
(ii) within the geographical area in which Executive has
been performing services on behalf of the Company or
for which he has been assigned responsibility at
anytime within the twenty-four (24) months preceding
his separation, directly or indirectly in any
competitive capacity, work for, advise, manage, or
act as an agent or consultant for or have any
business connection or business or employment
relationship with any entity or person engaged in
research, development, production, sale or
distribution of a product or service which competes
with or is substantially similar to any product or
service in research, development or design, or
manufactured, produced, sold or distributed by the
Company.
(iii) directly or indirectly market, sell or otherwise
provide any products or services which are
competitive with or substantially similar to any
product or service in research, development or
design, or manufactured, produced, sold or
distributed by the Company, to any customer of the
Company with whom Executive has had contact (either
directly or indirectly) or over which he has had
responsibility at any time during the twenty-four
(24) months preceding his separation.
(c) In the event that Executive worked for the Company less than a
total of twenty-four (24) months prior to separation, the
limited non-competition of sections 9(b)(i) - (iii) above
shall remain in effect the longer of --
(i) six (6) months, or
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(ii) the term of Executive's employment with the Company
(e.g., if Executive worked for the Company for ten
(10) months, the limited non-competition provisions
apply for ten (10) months post separation).
(d) Executive acknowledges that after termination of this
Agreement, he will inevitably possess trade secrets and
confidential data of the Company which he would inevitably use
if he were to engage in conduct prohibited as set forth above
and such use would be unfair to and extremely detrimental to
the Company and in view of the benefits provided him in this
Agreement, such conduct on his part would be inequitable.
Accordingly, Executive separately and severally covenants for
the benefit of the Company to keep each of the covenants
described in the foregoing provisions of Paragraph 9 above
throughout the two year period specified above.
(e) Publicly Traded Stock. Nothing in the foregoing provisions of
Paragraph 9 prohibits Executive from purchasing for investment
purposes only, any stock or corporate security traded or
quoted on a national securities exchange or national market
system, so long as such ownership does not violate the
Hillenbrand Industries, Inc. Handbook of Ethical Business
Conduct.
(f) Maximum Application. In the unlikely event that a court of
competent jurisdiction were to determine that any portion of
this limited non-competition provision is unenforceable, then
the parties agree that the remainder of the limited
non-competition provision shall remain valid and enforceable
to the maximum extent possible.
10. Other Limited Prohibitions. During Executive's employment by the
Company and for two (2) years post-separation (for whatever reason) or
the length of Executive's tenure whichever is less (but in no event
less than six (6) months), Executive shall not:
(a) Request or advise any customer of the Company, or any person
or entity having business dealings with the Company, to
withdraw, curtail or cease such business with the Company;
(b) Disclose to any person or entity the identities of any
customers of the Company, or the identity of any persons or
entities having business dealings with the Company; or
(c) Directly or indirectly influence or attempt to influence any
other employee of the Company to separate from the Company.
11. Consent to Reasonableness. In light of Executive's knowledge of an
access to the Company's Confidential Information, the Executive and the
Company expressly agree that the terms of the foregoing limited
non-competition and non-solicitation provisions are reasonable and
necessary to protect the Company's legitimate business interests and do
not unreasonably interfere with Executive's ability to obtain alternate
employment. As such Executive hereby agrees that such restrictions are
valid and enforceable and affirmatively waives any argument or defense
to the contrary. Further, Executive acknowledges that any alleged
breach by the Company of any contractual, statutory or other obligation
shall not excuse or terminate his obligations hereunder or otherwise
preclude the Company from seeking injunctive or other relief.
12. Scope of Restrictions. If the scope of any restriction contained in any
preceding paragraphs of this Agreement is too broad to permit
enforcement of such restriction to its fullest extent then
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such restriction shall be enforced to the maximum extent permitted by
law, and Executive hereby consents and agrees that such scope may be
judicially modified accordingly in any proceeding brought to enforce
such restriction.
13. Specific Enforcement/Injunctive Relief. Executive agrees that it would
be difficult to measure damages to the Company from any breach of the
covenants contained in Paragraphs 7 through 10, but that such damages
from any breach would be great, incalculable and irremedial, and that
damages would be an inadequate remedy. Accordingly, Executive agrees
that the Company may have specific performance of the terms of this
Agreement in any court having jurisdiction. In addition, if Executive
violates the provisions of Paragraphs 9 or 10, Executive agrees that
any period of such violation shall be added to the term of the
restriction. For example, if Executive violates the non-competition
provision for three months, the Company shall be entitled to enforce
the non-competition provision for two years and three months
post-separation. In determining the period of any violation, the
parties stipulate that in any calendar month in which Executive engages
in any activity violative of the provisions of Paragraphs 9 or 10,
Executive is deemed to have violated such provision for the entire
month, and that month shall be added to the duration of the
non-competition provision as set out above. The parties agree however,
that specific performance and the "add back" remedies described above
shall not be the exclusive remedies, and the Company may enforce any
other remedy or remedies available to it either in law or in equity
including but not limited to temporary, preliminary, and/or permanent
injunctive relief. Executive further agrees that the Company shall be
entitled to an award of all costs and attorneys' fees incurred by it to
enforce the terms of this Agreement.
14. Severability. If any provision of this Agreement is held invalid, such
invalidity shall not affect the other provisions of this Agreement
which shall be given effect independently of the invalid provisions;
and, in such circumstances, the invalid provision is severable.
15. Titles. Titles are used for the purpose of convenience in this
Agreement and shall be ignored in any construction of it.
16. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Indiana. The parties expressly agree that it is
appropriate for Indiana law to apply: (1) to the interpretation of this
Agreement; (2) to any disputes arising out of this Agreement; and (3)
to any disputes arising out of the employment relationship of the
parties.
17. Choice of Forum. The Company is based in Indiana, and Executive
understands and acknowledges the Company's desire and need to defend
any litigation against it in Indiana. Accordingly, the parties agree
that any claim of any type brought by Executive against the Company or
any of its employees or agents must be maintained only in a court
sitting in Marion County, Indiana, or Ripley County, Indiana, or, if a
federal court, the Southern District of Indiana, Indianapolis Division.
Executive further understands and acknowledges that in the
event the Company initiates litigation against him, the Company may
need to prosecute such litigation in his forum state, in the State of
Indiana, or in such other state where Executive is subject to personal
jurisdiction. Accordingly, the parties agree that the Company can
pursue any claim against Executive in any forum in which Executive is
subject to personal jurisdiction. Executive specifically consents to
personal jurisdiction in the State of Indiana, as well as any state in
which resides a customer assigned to him.
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18. Successors and Assigns. The rights and obligations of the Company under
this Agreement shall inure to its benefit, its successors and
affiliated companies and shall be binding upon the successors and
assigns of the Company. This Agreement, being personal to Executive,
cannot be assigned by Executive, but his personal representative shall
be bound by all its terms and conditions.
19. Assignment-Waiver-Notices. The rights and obligations of the Company
under this Agreement shall inure to the benefit of its successors and
affiliated companies and shall be binding upon the successors and
assignees of the Company. This Agreement, being personal to the
Executive, cannot be assigned by Executive, but his personal
representative shall be bound by all its terms and conditions. The
waiver by the Company of breach of any provision of this Agreement by
Executive shall not be construed as a waiver of any subsequent breach
by Executive. Any notice hereunder shall be sufficient if in writing
and mailed to the last known residence of Executive or to the Company
at its principal office.
20. Amendments and Modifications. Except as specifically provided herein,
no modification, amendment, extension or waiver of this Agreement or
any provision hereof shall be binding upon the Company or Executive
unless in writing and signed by both parties. Nothing in this Agreement
shall be construed as a limitation upon the Company's right to modify
or amend any of its manuals at its sole discretion and any such
modification or amendment which pertains to matters addressed herein
shall be deemed to be incorporated in and made a part of this
Agreement.
21. Complete Agreement. This Agreement constitutes the entire employment
agreement of the parties and supersedes all prior employment agreements
addressing the terms, conditions, and issues contained herein. Nothing
in this Agreement, however, affects any separate written agreements
addressing other terms and conditions and issues (by way of example
only, the Inventions, Improvements, Copyrights and Trade Secrets
Agreement).
IN WITNESS WHEREOF, the parties have signed this Agreement effective as
of the day and year first above written.
EXECUTIVE HILL-ROM, INC.
_______________________________ By: ______________________________
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Exhibit A
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION and RELEASE AGREEMENT ("Agreement") is entered into by
and between [Employee's Full Name] ("Employee") and [Name of Operating Company]
("Company"). To wit, the Parties agree as follows:
1. Employee's active employment by the Company shall terminate effective
[date of termination] (Employee's "Effective Termination Date"). As of
that date, all Company benefits and obligations shall terminate except
as specifically provided by this Agreement. Employee agrees that the
Company shall have no other obligations or liabilities to him and that
his receipt of the severance benefits provided herein shall constitute
a complete settlement and satisfaction of any and all claims he may
have against the Company.
2. In consideration of the promises contained in this Agreement and
contingent upon Employee's compliance with such promises, the Company
agrees to provide Employee the following:
(i) Severance pay, inclusive of any notice pay obligations, to be
paid at the bi-weekly rate of $_______, less applicable
deductions, for a period of [weeks of separation] (___) weeks
following the date of termination or until Employee becomes
employed again, whichever first occurs;
(ii) Payment for any earned but unused vacation as of [date of
termination]; and
(iii) Life insurance coverage until the above-referenced Severance
Pay terminates.
The above Severance Benefits shall be paid in accordance with the
Company's standard payroll practices and shall begin on the first
normally scheduled payroll following Employee's Effective Termination
Date or the effective date of this Agreement, whichever occurs last.
3. As of the Effective Termination Date, Employee will become ineligible
to participate in the Company's health insurance program and
continuation of coverage requirements under COBRA will be triggered at
that time. However, as additional consideration for the promises and
obligations contained herein, and provided Employee completes the
applicable election of coverage forms, the Company further agrees to
pay the cost of such continued coverage under the Company's health care
program until the above-referenced Severance Pay terminates.
Thereafter, if applicable, coverage will be made available to Employee
at his sole expense for the remaining months of the COBRA coverage
period made available pursuant to applicable law. The medical insurance
provided herein does not include any disability coverage.
4. Should Employee become employed before the above-referenced Severance
Benefits are exhausted or terminated, Employee agrees to so notify the
Company in writing within three (3) business days of Employee's
acceptance of such employment, providing the name of such employer as
well as the anticipated start date.
5. It is understood by the Parties that, unless it is specifically stated
otherwise, nothing in this Agreement shall affect any rights Employee
may have under any Profit Sharing and Savings Plan (401(k)) and/or
Pension Plan provided by the Company as of the date of his termination,
such items to be governed by the terms of the applicable plan
documents.
6. In exchange for the foregoing Severance Benefits, [EMPLOYEE'S FULL
NAME] on behalf of himself, his heirs, representatives, agents and
assigns hereby COVENANTS NOT TO SUE, RELEASES, INDEMNIFIES, HOLDS
HARMLESS, and FOREVER DISCHARGES (i) [Name of Operating Company], (ii)
its parent, subsidiary or affiliated entities, (iii) all of their
present or former directors, officers, employees, shareholders, and
agents as well as (iv) all predecessors, successors and assigns thereof
from any and all actions, charges, claims, demands, damages or
liabilities of any kind or character whatsoever, known or unknown,
which Employee now has or may have had through the effective date of
this Agreement.
7. Without limiting the generality of the foregoing release, it shall
include: (i) all claims or potential claims arising under any federal,
state or local laws relating to the Parties' employment relationship,
including any claims Employee may have under the Civil Rights Acts of
1866 and 1964, as amended, 42 U.S.C. Sections 1981 and 2000(e) et seq.;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act,
as amended, 29 U.S.C. Sections 621 et seq.; the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. Sections 12,101 et
seq.; the Fair Labor Standards Act 29 U.S.C. Sections 201 et seq.; and
any other federal, state or local law governing the Parties' employment
relationship; (ii) any claims on account of, arising out of or in any
way connected with Employee's employment with the Company or leaving of
that employment; (iii) any claims alleged or which could have been
alleged in any charge or complaint against the Company; (iv) any claims
relating to the conduct of any employee, officer, director, agent or
other representative of the Company; (v) any claims of discrimination
or harassment on any basis; (vi) any claims arising from any legal
restrictions on an employer's right to separate its employees; (vii)
any claims for personal injury, compensatory or punitive damages or
other forms of relief; and (viii) all other causes of action sounding
in contract, tort or other common law basis, including (a) the breach
of any alleged oral or written contract, (b) negligent or intentional
misrepresentations, (c) wrongful discharge, (d) just cause dismissal,
(e) defamation, (f) interference with contract or business relationship
or (g) negligent or intentional infliction of emotional distress.
8. The Parties acknowledge that it is their mutual and specific intent
that the above waiver fully comply with the requirements of the Older
Workers Benefit Protection Act (29 U.S.C. Section 626). Accordingly,
Employee hereby acknowledges that:
(a) He has carefully read and fully understands all of the
provisions of this Agreement and that he has entered into this
Agreement knowingly and voluntarily;
(b) The Severance Benefits offered in exchange for Employee's
release of claims exceed in kind and scope that to which he
would have otherwise been legally entitled;
(c) Prior to signing this Agreement, Employee had been advised in
writing and given an opportunity to consult with an attorney
of his choice concerning its terms and conditions; and
(d) He has been offered at least twenty-one (21) days within which
to review and consider this Agreement.
9. The Parties agree that nothing contained herein shall purport to waive
or otherwise affect any of Employee's rights or claims which may arise
after this Agreement is signed by him.
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10. The Parties agree that this Agreement shall not become effective and
enforceable until seven (7) calendar days after its execution by
Employee or Employee's last day of active employment, whichever occurs
last. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days
after he has signed this Agreement, thereby forfeiting Employee's right
to receive any Severance Benefits provided hereunder and rendering this
Agreement null and void in its entirety.
11. Employee hereby affirms and acknowledges his continued obligations to
comply with the post-termination covenants contained in his Employment
Agreement, including but not limited to, the non-compete, trade secret
and confidentiality provisions. Employee acknowledges that a copy of
the Employment Agreement has been attached to this Agreement as Exhibit
___ or has otherwise been provided to him and, to the extent not
inconsistent with the terms of this Agreement, the terms thereof shall
be incorporated herein by reference. Employee acknowledges that the
restrictions contained therein are valid and reasonable in every
respect and are necessary to protect the Company's legitimate business
interests. Employee hereby affirmatively waives any claim or defense to
the contrary.
12. On or before [date of termination], Employee agrees to return to the
Company the original and all copies of all things in his possession or
control relating to the Company or its business, including but not
limited to any and all contracts, reports, memoranda, correspondence,
manuals, forms, records, designs, budgets, contact information or lists
(including customer, vendor or supplier lists), ledger sheets or other
financial information, drawings, plans (including, but not limited to,
business, marketing and strategic plans), personnel or other business
files, computer hardware, software, or access codes, door and file
keys, identification, credit cards, pager, phone, and any and all other
physical, intellectual, or personal property of any nature that he
received, prepared, helped prepare, or directed preparation of in
connection with his employment with the Company. Nothing contained
herein shall be construed to require the return of any non-confidential
and de minimis items regarding Employee's pay, benefits or other rights
of employment such as pay stubs, W-2 forms, 401(k) plan summaries,
benefit statements, etc.
13. Employee agrees not to discuss or disclose, directly or indirectly, any
proprietary or confidential information regarding the Company without
its express written consent. Employee further agrees not to make any
written or oral statement that may defame, disparage or cast in a
negative light so as to do harm to the personal or professional
reputation of (a) the Company, (b) its employees, officers, directors
or trustees or (c) the services and/or products provided by the Company
and its subsidiaries or affiliate entities.
14. The Parties agree that each and every paragraph, sentence, clause, term
and provision of this Agreement is severable and that, if any portion
of this Agreement should be deemed not enforceable for any reason, such
portion shall be stricken and the remaining portion or portions thereof
should continue to be enforced to the fullest extent permitted by
applicable law.
15. Employee specifically agrees and understands that the existence and
terms of this Agreement are strictly CONFIDENTIAL and that such
confidentiality is a material term of this Agreement. Accordingly,
except as required by law or unless authorized to do so by the Company
in writing, Employee agrees that he shall not communicate, display or
otherwise reveal any of the contents of this Agreement to anyone other
than his spouse, legal counsel or financial advisor provided, however,
that they are first advised of the confidential nature of this
Agreement and Employee obtains their agreement to be bound by the same.
The Company agrees that Employee may respond to legitimate inquiries
regarding the termination of his employment by stating that the Parties
have terminated their relationship on an amicable basis and that the
Parties have entered
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into a Confidential Separation and Release Agreement which prohibits
him from further discussing the specifics of his separation. [Nothing
contained herein shall be construed to prevent Employee from discussing
or otherwise advising subsequent employers of the existence of any
obligations as set forth in his Employment Agreement. Further,] nothing
contained herein shall be construed to limit or otherwise restrict the
Company's ability to disclose the terms and conditions of this
Agreement as it sees fit in its sole discretion.
16. In the event that Employee breaches or threatens to breach any
provision of this Agreement, he agrees that the Company shall be
entitled to discontinue providing any additional Severance Benefits and
to seek any and all equitable and legal relief provided by law,
specifically including immediate and permanent injunctive relief.
Employee hereby waives any claim that the Company has an adequate
remedy at law. In addition, Employee agrees that the Company shall be
entitled to an award of all costs and attorneys' fees incurred by the
Company in any effort to enforce the terms of this Agreement. Employee
agrees that the foregoing relief shall not be construed to limit or
otherwise restrict the Company's ability to pursue any other remedy
provided by law, including the recovery of any actual, compensatory or
punitive damages. Moreover, if Employee pursues any claims against the
Company which is subject to the foregoing General Release, or breaches
the above Confidential provision, Employee agrees to immediately
reimburse the Company for the value of all benefits received under this
Agreement.
17. Employee acknowledges that this Agreement is entered into solely for
the purpose of terminating his employment relationship with the Company
on an amicable basis and shall not be construed as an admission of
liability or wrongdoing by the Company and further acknowledges that
the Company has expressly denied any such liability or wrongdoing.
18. Each of the promises and obligations shall be binding upon and shall
inure to the benefit of the heirs, executors, administrators, assigns
and successors in interest of each of the Parties.
19. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Indiana.
20. Employee represents and acknowledges that in signing this Agreement he
does not rely, and has not relied, upon any representation or statement
made by the Company or by any of the Company's employees, officers,
agents, stockholders, directors or attorneys with regard to the subject
matter, basis or effect of this Agreement other than those specifically
contained herein.
21. This Agreement represents the entire agreement between the Parties
concerning the subject matter hereof, shall supercede any and all prior
agreements which may otherwise exist between them concerning the
subject matter hereof (specifically excluding, however, the
post-termination obligations contained in any existing Employment
Agreement or other legally-binding document), and shall not be altered,
amended, modified or otherwise changed except by a writing executed by
both Parties.
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PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the Parties have themselves signed, or caused a
duly authorized agent thereof to sign, this Agreement on their behalf and
thereby acknowledge their intent to be bound by its terms and conditions.
"EMPLOYEE" [NAME OF OPERATING COMPANY]
Signed: ______________________________ By: ______________________________
Printed: _____________________________ Title: ___________________________
Dated: _______________________________ Dated: ___________________________
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December 22, 2003
R. Ernest Waaser
Hill-Rom, Inc.
1069 State Route 46 East
Batesville, Indiana 47006
Dear Ernest:
Re: Amendment to Employment Agreement
This is to confirm that, notwithstanding anything in Paragraphs 5 and
16 of the Employment Agreement dated December 19, 2000, between you and
Hill-Rom, Inc, Inc. ("Company") (hereinafter "Employment Agreement"), in the
event your employment is involuntarily terminated by the Company without cause,
you shall, subject to the terms and conditions set out below, be entitled to
receive the greater of:
(i) (a) Fifty-two (52) weeks of your base salary at the time of
termination paid as a lump sum, without set off for any other
income over and above such severance or any Accrued
Obligations and (b) any Accrued Obligations; or
(ii) (a) Severance pay determined in accordance with any guidelines
established by the Company, without set off for any other
income over and above such severance or any Accrued
Obligations and (b) any Accrued Obligations;
"Accrued Obligations" collectively refers to accrued wages, deferred
compensation, or other compensation, benefits, or perquisites which have been
fully paid or fully accrued as of the effective date of your separation, in
accordance with the Company's past practice and applicable law.
This severance pay will be in lieu of, and not in addition to, any amount of
severance pay previously described in Paragraph 16 of your Employment Agreement
as payable to you in the event your employment with the Company is involuntarily
terminated without cause.
No severance pay shall be paid if you voluntarily leave the Company's employ or
are terminated for cause. Any severance pay made payable hereunder shall be paid
in lieu of, and not in addition to, any notice pay.
Additionally, such severance pay is contingent upon you (1) fully complying with
any restrictive covenants contained in your Employment Agreement and (2)
executing a Termination and Release Agreement in a form not substantially
different from that attached to your Employment Agreement as Exhibit A
("Separation Agreement") and including the terms contained in this Amendment.
Except to the extent explicitly amended herein, all terms and conditions
contained in your Employment Agreement, in any document specifically
incorporated therein by reference, and in any other agreement between you and
the Company, shall remain in full force and effect.
Sincerely,
Frederick W. Rockwood
President and CEO
Hillenbrand Industries, Inc.
THIS AMENDMENT IS MADE PART OF AND SHOULD BE KEPT WITH YOUR EMPLOYMENT AGREEMENT