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EXHIBIT 10.64
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made to be effective as of
the 13th day of March, 1998, by and between Xxxxxx, Inc., a New Hampshire
corporation (the "Employer"), and _____________________ (the "Employee").
BACKGROUND
A. The Employer is engaged in the business of operating post secondary
schools under the trade name "Xxxxxx College;" and
B. The Employer desires to employ the Employee and the Employee is
willing to be employed by the Employer, pursuant to the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements set
forth herein and for 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. TERM; DUTIES. Employer hereby hires and employs Employee as its
_______________________ and Employee hereby accepts and agrees to such
employment for an initial term of one (1) year from the date first above written
(such initial term as it may be extended from time to time in writing shall
hereinafter be referred to as the "Employment Term"). Employee shall perform
those duties as may be required by the Employer's Board of Directors and shall
at all times during the term of this Agreement be subject to the general
supervision, advise, and direction of Employer and the Employer's supervisory
personnel. Employee shall also perform such other additional or substituted
related or unrelated services and duties as may be assigned to Employee from
time to time by Employer. Employee understands that Employee is serving in this
position at the pleasure of the Board of Directors of Employer and can be
reassigned to another position with Employer at any time by the Board of
Directors. Subsequent to the Employment Term, in consideration for the
continuation of Employee's Benefits as set forth in Section 7 hereof, Employee
agrees to act as a consultant to the Employer and perform such incidental
consulting services as may from time to time reasonably be requested by the
Employer, provided that if Employee is requested to render consulting services
in excess of such incidental services he shall be compensated for such services
at a mutually agreed upon rate.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees to perform faithfully,
industriously, and to the best of Employee's ability, experience and talents,
all of the duties that may be required by this Agreement. Such duties shall be
performed at the Employer's place of business located in Hillsborough County,
New Hampshire, and at such other places as the needs, business, or opportunities
of the Employer may require from time to time...
3. SALARY. As compensation for the services provided by Employee
under this Agreement, Employer will pay Employee an annual salary equal to
$_______ payable in accordance with Employer's payroll policies. Upon
termination of this Agreement, payments under this paragraph shall cease;
provided, however, that the Employee shall be entitled to payments for periods
or partial period that occurred prior to the date of termination and for which
the Employee has not yet been paid. This annual salary shall be reviewed on an
annual
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basis, and, if appropriate, increased by the Board of Directors at its
sole and absolute discretion.
4. DEATH OR DISABILITY OF EMPLOYEE. If Employee dies during the term
of this Agreement, Employee's estate shall be entitled to such payment of salary
as may be due and owing Employee as of the date of Employee's death, but due no
other compensation of any kind including, without limitation, payments in
connection with the remainder of the term of this Agreement from the date of
Employee's death. In the event Employee become disabled during the term of this
Agreement, subject to governmental statutes and regulations, the Employer may
terminate this Agreement at any time on ninety (90) days' notice to Employee.
For the purposes of this Agreement, the term "disability" shall mean a mental or
physical illness or condition that renders Employee incapable of performing all
of the essential functions of the services required of Employee under this
Agreement.
5. EXPENSES. The Employer will reimburse Employee for actual
"out-of-pocket" expenses in accordance with Employer's policies in effect from
time to time. Such expenses include, but are not limited to, expenses for
travel, entertainment, and miscellaneous incurred in the conduct of the business
of the Employer. Employee shall keep appropriate records of such expenses and
submit receipts or other evidence relating to them in accordance with the
Employer's policy.
6. VACATION; SICK LEAVE/HOLIDAYS. During the term of this Agreement,
Employee shall be entitled to annual paid vacation as provided within the
Employer's policy in effect from time to time. In addition, Employee shall be
entitled to paid sick time and paid holidays as provided within Employer's
policies in effect from time to time.
7. FRINGE AND MEDICAL BENEFITS. Employee and his immediate family
members shall be eligible to participate in the Employer's medical benefits as
other similarly situated employees of the Employer until such time as Employee
qualifies for the Medicare program; provided, however, that, subsequent to the
Employment Term, Employee shall reimburse employer for the costs associated with
providing such benefits to Employee and his immediate family members. In
addition, the Employer shall provide such fringe benefits to Employee and his
immediate family members, either through direct payments by Employer or by
reimbursement, as the Employer's Board of Directors may determine from time to
time, provided that notwithstanding any of the foregoing, during the Employment
Term the Employee shall be entitled to continue to receive such benefits and
perquisites (other than salary and bonuses) as he regularly received from the
employer during the 12 month period immediately prior to entering into the
Agreement.
8. CONFIDENTIALITY AND NON-DISCLOSURE. Employee acknowledges that
Employee does and shall continue to have access to trade secrets and other
confidential information which is the property of Employer and/or its
affiliates1, including but not limited to information relating to their present
or future operations (all of the foregoing, whether or not it qualifies as a
"trade secret" under applicable law, is collectively called "Confidential
Information"). Employee recognizes that Confidential Information is proprietary
to Employee and its Affiliates and gives each of them significant competitive
advantage. Accordingly, Employee agrees not to use or disclose any of the
Confidential Information during or after the term of this Agreement, except for
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1 An affiliate is any person or entity controlling, controlled by, or under
common control with, the Employer.
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the sole and exclusive benefit of the Employee or its Affiliates, or pursuant to
any relevant law or regulation, provided in the latter case Employee shall give
reasonable prior written notice of such disclosure to the Employer and only make
such disclosure upon receipt of an appropriate opinion of counsel confirming the
necessity of such disclosure, which opinion shall also be furnished to the
Employer. Upon any termination of this Agreement, Employee will return to the
Employee all tangible embodiments of any Confidential Information. Employee
agrees that each of the Employer and its Affiliates would be irreparably injured
by any breach of Employee's confidentiality agreement, that such injury would
not be adequately compensable by monetary damages, and that, accordingly, the
Employer and any offended Affiliate may specifically enforce the provisions of
this Paragraph by injunction or similar remedy by any court of competent
jurisdiction, without affecting any claim for damages.
9. NON-COMPETITION. Employee acknowledges that (i) the knowledge
Employee has obtained as a result of Employee's involvement with respect to any
of the business operations of Employer and (ii) the services to be rendered by
Employee pursuant to this Agreement are of a special and unusual character and
have a unique value to the Employer, the loss of which cannot adequately be
compensated by damages in an action at law. In view of this unique value, and
because of the Confidential Information which Employee shall have and will
obtain, and as a material inducement to the Employer to enter into this
Agreement, Employee agrees that Employee will not, for a period of one (1) year
from the date of the termination of Employee's employment pursuant to this
Agreement, (i) engage in the development or marketing or promotion of any
business which is, becomes, or reasonably may become competitive with any of the
business operations of Employer ("Prohibited Activities"); (ii) become
associated as manager, supervisor, employee, consultant, advisor, or stockholder
owning more than 5% of the outstanding stock of a company or participate in the
management or direction of a company or other entity with any person,
corporation or entity engaging in any Prohibited Activities; (iii) divert or
solicit any customer or prospective customer of the Employer for the benefit of
any other person or entity; or (iv) solicit on behalf of Employee or any other
person or entity the employment of any person employed by the Employer or any
entity controlling, controlled by or under common control with the Employer at
any time during the term of this Agreement.
10. ARBITRATION. Except for the agreements contained in Paragraphs 8
and 9, the exclusive remedy with respect to any dispute arising between Employee
and the Employer regarding the interpretation or enforcement of any portion of
this Agreement shall be determination by arbitration by a sole arbitrator under
the rules of the Commercial Division of the American Arbitration Association.
Arbitration shall take place in the appropriate jurisdiction in New Hampshire,
and any award, which may include attorneys' fees and costs, in the sole
discretion of the arbitrator, may be enforced in any court of competent
jurisdiction. All awards and determinations of the arbitration shall be final.
No written interrogatories or recorded testimony shall be provided to either
party prior to any arbitration proceeding, but in his sole discretion the
arbitrator may compel either party to produce witnesses for interviews and
documents for inspection prior to any hearing. With respect to the agreements
contained in Paragraphs 8 and 9, the Employer and Employee agree that damages,
by themselves, are an inadequate remedy at law, that a material breach of the
provisions of such paragraphs may be specifically enforced by injunction or
similar remedy in any court of competent jurisdiction without affecting any
claim for damages, provided that any such injunction shall either be preliminary
in nature, enjoining such activity pending the outcome of the arbitration as
provided in this section, or be in assistance of the final determination of the
arbitrators as provided for in such section. The Employer and Employee agree
that such injunction may be issued without the necessity of posting a bond.
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11. REMEDIES AND REASONABILITY.
A. Employee agrees that, if Employee shall violate any of the
covenants or agreements contained in Paragraphs 8 or 9 of this Agreement, the
Employer shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration, or benefits which Employee directly or
indirectly has realized and/or may realize as a result of, growing out of, or in
connection with any such violation; such remedy shall be in addition to and not
in limitation of any injunctive relief or other rights or remedies to which the
Employer may be entitled at law or in equity or under this Agreement.
B. With respect to the provisions of Paragraphs 8 and 9
Employee agrees that damages, by themselves, are an inadequate remedy at law,
that a material breach of the provisions of either of those Paragraphs would
cause irreparable injury to the aggrieved party, and that the provisions of
those Paragraphs may be specifically enforced by injunction or similar remedy in
any court of competent jurisdiction without affecting any claim for damages.
C. In the event that, notwithstanding the foregoing, any of
the provisions of Paragraphs 8 or 9 shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though invalid or unenforceable parts had not been
included therein. In the event that any provision of this Paragraph relating to
time period and/or areas of restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or areas such panel or
court deems reasonable and enforceable, said time period and/or areas of
restriction shall be deemed to become, and thereafter be, the maximum time
period and/or area which such panel or court deems reasonable and enforceable.
D. Employee has carefully read and considered the provisions
of Paragraphs 8 and 9, and having done so, agree that the restrictions set forth
(including but not limited to the time period of restriction and the areas of
restriction) are fair and reasonable and are reasonably required for the
protection of the interests of the Employer, its officers, directors, and other
employees.
12. TERMINATION. The Employee shall have the right to terminate
the Employment Term at any time upon 30 days written notice to the Employer, and
all payments of compensation hereunder shall cease as of the date of such
termination. The Employer shall have the right to terminate the Employee's
employment for cause at any time. In the event the Employer elects to terminate
the Employee's employment for cause, or otherwise prior to the first anniversary
of this agreement, then the Employer shall continue Employee's current annual
salary through such anniversary date. No termination of employment pursuant to
this Section 12 shall effect the payments provided for pursuant to Section 7 of
this Agreement. For the purpose of this Section 12, the term "cause" shall mean
a substantial failure or refusal on the part of the Employee to perform
substantially such person's duties hereunder as determined by unanimous written
finding of the Board of Directors, the conviction of the Employee of a felony,
willful misconduct of the Employee contrary to the interest of the Employer, or
a material breach of the Employee's fiduciary duties to the Employer.
13. NOTICES. All notices required or permitted under this
Agreement shall be in writing and shall be deemed delivered when delivered in
person or deposited in the United States mail, postage paid, addressed as
follows:
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To Employer: Xxxxxx, Inc.
c/o Educational Medical, Inc.
0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
To Employee: ----------------------------------
c/o Hesser College
0 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Such addresses may be changed from time to time by either party by
providing written notice in the manner set forth above.
14. APPLICABLE LAW; VENUE. This Agreement shall be governed by the
State of New Hampshire. Venue for any action for either party in this Agreement
shall be the lowest state court of competent jurisdiction in Hillsborough
County, New Hampshire.
15. ATTORNEYS' FEES. In the event that any action is filed in relation
to this Agreement, the unsuccessful party in such action shall pay to the
successful party in addition to all the sums that either party may be called on
to pay, a reasonable sum for attorneys fees, including fees incurred for any and
all appeals.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
17. AMENDMENTS. This Agreement, or any provisions hereof, may not be
amended, changed or modified without the prior written consent of each of the
parties hereto.
18. ENTIRE AGREEMENT. This Agreement and the agreements referred to
in it contain the entire agreement between the parties with respect to the
transactions provided for in them and supersede all previously written or oral
negotiations, commitments, representations and/or agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYER:
XXXXXX, INC., a New Hampshire
corporation
By:
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EMPLOYEE:
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EDUCATIONAL MEDICAL, INC. has joined in this Agreement for the
purposes of guaranteeing all of the obligations of the employer to the employee
hereunder.
EDUCATIONAL MEDICAL, INC., a
Delaware corporation
By:
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