EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of March ___, 1996, by and between
Medical Resource Companies of America, a Nevada corporation (the "Company"), and
Xxxx Xxxxx ("Employee");
W I T N E S S E T H:
WHEREAS, pursuant to the Stock Purchase Agreement dated January 26,
1996 by and between the Company, and Employee (the "Stock Purchase Agreement"),
Employee has agreed, among other things, to sell to the Company all of his or
her outstanding shares of capital stock of the Wedgwood Retirement Inns, Inc.
("Wedgwood");
WHEREAS, Employee will be a highly valued employee of the Company
whose qualifications are critical to the success of the Company and without whom
the business of the Company would be irreparably harmed;
WHEREAS, the Company desires to insure that the skills and experience
of Employee will remain available to the Company and will not be used to compete
against the Company;
WHEREAS, without Employee's agreement to continue in the employ of the
Company pursuant hereto, the Company would not have entered into the Stock
Purchase Agreement or agreed to consummate the transactions contemplated
thereby; and
WHEREAS, the parties hereto wish to enter into an agreement providing
for the continued employment of Employee by the Company;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained the parties hereto agree as follows:
1. Employment. The Company agrees to continue to employ Employee,
and Employee agrees to continue to serve the Company, upon the terms and
conditions hereinafter set forth.
2. Duties. During the term of this Agreement, Employee agrees to
devote his or her full business time and his or her best efforts to the affairs
of the Company. Employee shall render such executive, administrative and other
duties as are commensurate with his or her title and as may be requested from
time to time by the Board of Directors of the Company or Employee's immediate
supervisor. Employee will be based out of the Portland, Oregon/Vancouver,
Washington area unless otherwise agreed by Employee. The Company will provide,
at its expense,
reasonably adequate office space, staff and equipment to support Employee's
duties.
3. Term. The term of Employee's employment hereunder shall commence
upon the closing of the Stock Purchase Agreement, and shall end one (1) year
thereafter, unless terminated prior thereto pursuant to Section 7 hereof. This
Agreement shall be renewable for two(2) successive one (1) year periods as long
as the parties hereto agree to the same for each period.
4. Compensation and Benefits. In consideration of the services to be
rendered by Employee during the Employment Period, Employee shall receive from
the Company the following compensation:
(a) Salary. Employee shall be compensated at an annual salary of
$125,000 per year, payable in twenty four equal semi monthly installments.
Salary amounts set forth above shall be reduced for income tax withholdings and
other normal employee deductions relating thereto. Employee shall also be
entitled to receive annual bonuses in accordance with the standard policy and
procedures of the Company in effect from time to time with respect to employees
at the executive level.
(b) Insurance. The Company shall provide life, medical and disability
insurance coverage to Employee comparable to the coverage provided to other
executive employees of the Company.
(c) Travel, Business and Entertainment Expenses. The Company shall
reimburse Employee, upon presentation of proper vouchers, for the reasonable
travel, entertainment and other business expenses incurred by him or her in the
performance of his or her duties hereunder pursuant to the standard policy and
procedures of the Company in effect from time to time with respect to employees
at the executive level, unless adjusted by the written agreement of Employee and
the Company.
(d) Vacation & Sick Leave. Employee shall be entitled to paid
vacation and sick leave each year in accordance with the standard policy and
procedures of the Company in effect from time to time with respect to employees
at the executive level. For 1996 the standard vacation policy and procedure is
to allow ten (10) days per year with accrual of up to thirty (30) days for
unused vacation. For 1996 the standard sick leave policy and procedure is to
allow ten (10) days per year with accrual of up to thirty (30) days for unused
sick leave.
(e) Mileage & Automobile Allowance. The Company shall reimburse
Employee, upon presentation of proper vouchers, on the mileage basis set by the
Internal Revenue Service, for the reasonable travel, entertainment and other
business mileage incurred by his in the performance of his
duties hereunder, unless adjusted by the written agreement of Employee and
the Company. If the Employee is involved in the operation and management of
facilities, the Company shall continue to pay the Employee the automobile
allowance paid to him which Employee had been receiving prior to the date of
this Agreement, or an equivalent benefit, and Employee recognizes that such
amount will be taxable income to him.
(f) Stock Options. Employee shall be granted a qualified employee
stock option pursuant to the Company's Stock Option Plan. The option shall
cover 10,000 shares of the common stock of the Company, one third of which shall
vest on each anniversary of this agreement, shall be granted as of the
commencement date hereof, and shall have an exercise price equal to the closing
sale price of the Company's Common Stock on the date hereof, as reported by the
American Stock Exchange, and shall have a term of ten years (subject to earlier
termination as provided in the option agreement) from the date of grant.
Additional options will be granted on an annual basis at the discretion of the
board of directors of the Company, or a committee of the board of directors of
the Company. Such options shall continue to vest so long as Employee continues
to be employed by the Company.
5. Employee's Obligations. During the term of his or her employment
hereunder, Employee shall faithfully, industriously and to the best of his or
her ability, experience and talent, carry out his or her responsibilities and
duties hereunder. Employee shall not during his or her employment hereunder
engage, directly or indirectly, in any other material trade or business
activity, whether or not such trade or business activity is pursued for gain,
profit, or other advantage. Nothing in this Section 5 shall be construed to
prohibit Employee from having business interests or investing his or her assets
in such form or manner as he or she shall wish, so long as such investments or
business interests do not materially impair Employee's ability to perform their
obligations and duties to the Company, and so long as such business interests or
investments do not give Employee the right or ability to control or influence
the policy decisions of any business which is or might be in competition with
any of the businesses of the Company or any of their affiliated companies or
franchisees. Employee represents and warrants that he or she is in good health,
and is not on the date of this Agreement a party to any agreement, contract or
understanding, whether of employment or otherwise, which would in any way
restrict him or her from entering into this Agreement or undertaking or
performing employment in accordance with this Agreement.
6. Agreement Not to Compete.
(a) Employee covenants and agrees that, without the prior written
consent of the Company or its successors,
for a period commencing on the date hereof and ending three years hereafter,
he or she shall not, directly or indirectly, individually or together or
through any affiliate or other firm, person, corporation or entity, except as
required in the performance of his or her duties as an employee or consultant
of the Company, (1) engage in or acquire any interest in any business
competitive with that conducted by the Company or any of their affiliates,
franchises, successors or assigns which are engaged in the full service
retirement center or assisted living business, including Alzheimer's care,
(collectively, the "Purchaser Companies"), in any state or foreign country
(except that he or she may acquire interests in companies whose shares are
traded on a national exchange or the NASDAQ or OTC markets and in which
Employee and his or her immediate relatives (consisting of siblings, parents,
grandparents, children and grandchildren) and affiliates own no more than 1%
of the outstanding shares), (2) approach, solicit, accept business from or
otherwise engage in business in any way with, any person or entity which is,
has been or becomes, a customer or client of the Purchaser Companies, or any
affiliate of such a person or entity, (3) approach, counsel or attempt to
induce any person who is then in the employ of any of the Purchaser Companies
to leave the employ of the Purchaser Companies, or employ or attempt to
employ any such person or any person who at any time during the preceding 24
months was in the employ of the Purchaser Companies, or (4) aid or counsel
any other person, firm or corporation to do any of the above.
Notwithstanding this paragraph, Employee may engage in the full service
retirement center or assisted living business, including Alzheimer's care,
following termination of his or her employment by the Company in the
Portland, Oregon metropolitan area (or the Dallas, Texas metropolitan area if
Employee has relocated to the Dallas, Texas metropolitan area) which is
greater than 5 miles from any facility operated or publicly announced by any
of the Purchaser Companies and 25 miles for any area outside of the Xxxxxxxx,
Xxxxxx (xx Xxxxxx, Xxxxx) metropolitan area.
(b) Employee further agrees that he or she will not at any time from
and after the date hereof (1) except during his or her engagement by the Company
or its affiliates, indicate on any stationery, business card or advertising,
solicitation or other business materials that he or she is or was formerly
associated with the Company or any affiliate thereof (provided that any factual
statement on resumes or other similar reference material of Employee shall not
be deemed to violate this provision), or (2) disclose, furnish or make
accessible to any person, or make use of, any confidential information obtained
by him or her while he or she was in the employ of the Company or its affiliates
as an employee or consultant, including, without limitation, information with
respect to any designs, procedures, customers, clients, advertising, finances,
financial condition, organization, personnel, business activities, budgets,
plans, objectives or strategies which are proprietary to the Purchaser
Companies', provided,
however, that Employee may disclose such information as may be required by
law in connection with any judicial or administrative proceeding or inquiry.
(c) In view of the anticipated continuation of Employee's relationship
with the customers and employees of the Purchaser Companies pursuant to this
Agreement, and recognizing both the access to confidential financial and other
information derived by Employee pursuant to his or her employment with the
Company and the substantial sums to be paid to Employee pursuant to the terms of
this Agreement, Employee expressly acknowledges that the agreement not to
compete and related restrictive covenants set forth in this Section 6 are
reasonable and necessary in order to protect and maintain the proprietary
interests and other legitimate business interests of the Purchaser Companies and
that the enforcement of such agreement not to compete and related restrictive
covenants would not prevent him or her from earning a livelihood. Employee
further acknowledges (i) that it would be difficult to calculate damages to the
Company from any breach by Employee of his or her obligations under this Section
6, (ii) that injury to the Company from any such breach would be irreparable and
impossible to measure and (iii) that the remedy at law for any breach or
threatened breach of this Section 6 would therefore be an inadequate remedy and,
accordingly, that the Company shall, in addition to all other available remedies
(including, without limitation, seeking such damages as it can show it has
sustained by reason of such breach), be entitled to injunctive and other similar
equitable remedies without proving or showing any actual damage sustained by the
Company.
(d) The provisions of this Section 6 shall survive the termination of
Employee's employment for any reason whatsoever. In the event the provisions of
this Section 6 should ever be deemed to exceed the time or geographic
limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time or geographic limitations permitted by applicable law. The
covenants contained in Section 6(a) shall be construed as a series of separate
covenants, one for each month of the year and for each county and for each state
of the United States encompassed by the covenants contained in Section 6(a). In
the event that any one or more of such covenants shall for any reason be held to
be invalid or unenforceable in any respect, such invalidity or unenforceability
shall not have any effect on any other such separate covenant, but such other
covenants shall be construed as if the invalid or unenforceable covenant had
never been contained in this Section 6(a).
7. Termination.
(a) As a material inducement for the Company to enter into the Stock
Purchase Agreement, Employee agrees to
perform his or her duties hereunder during the period specified in Section 3.
(b) The termination provisions of this paragraph are all-inclusive.
This Agreement and the obligations of the Company and Employee hereunder shall
terminate (except as to such obligations as are expressly stated to survive such
termination) only in the following events: (i) upon Employee's death or upon
written notice from the Company to Employee in the event of permanent
disability, (ii) upon written notice from the Company to Employee in the event
Employee is convicted of any criminal act that is a felony or involves moral
turpitude, or (iii) upon written notice from the Company to Employee in the
event Employee commits an act of gross negligence or gross misconduct in the
performance of his or her duties or willfully violates any material provision of
this Agreement, (iv) upon payment by the Company to the Employee of the salary
for the remaining term of this Agreement or (v) upon the expiration of the term
of employment set forth in Section 3.
8. Miscellaneous.
(a) Notices. All notices which a party is required or may desire to
give to the other party under or in connection with this Agreement shall be
sufficient if given by addressing the same to the other party as follows:
If to Employee to:
Xxxx Xxxxx
000 X.X. Xxxxxx-xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
If to the Company, to:
Medical Resource Companies of America
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
or to such other place as may be designated in writing by like notice. Any
notice shall be deemed to have been given when personally delivered or five days
after mailing if mailed by certified or registered mail, postage prepaid, return
receipt requested, when addressed as required herein.
(b) Assignment. It is expressly intended that Section 6 of this
Agreement shall inure to the benefit of, and be enforceable by, the "Purchaser
Companies" as defined therein. This Agreement shall be binding upon and inure
to the benefit of Employee, his or her heirs, distributees and assigns and the
Company and its successors and assigns. Employee may not, without the express
written permission of the Company, assign or pledge any rights or obligations
hereunder.
(c) Entire Agreement. This Agreement contains all of the terms and
conditions agreed upon by the parties relating to the subject matter of this
Agreement and supersedes any and all prior and contemporaneous agreements,
negotiations, correspondence, undertakings and communications of the parties,
oral or written, with respect to that subject matter.
(d) Amendment Waiver. No amendment or modification of this Agreement
shall be valid unless evidenced by a written instrument executed by the parties
hereto. No waiver by the Company of any breach by Employee of any provision or
condition of this Agreement shall be deemed a waiver of any similar or
dissimilar provision or condition at the same time or any prior or subsequent
time.
(e) Severability. The provisions of this Agreement and the covenants
herein contained shall be construed independently of each other, it being the
express intent of the parties hereto that the obligations of, and restrictions
on, the parties as provided herein shall be enforced and given effect to the
fullest extent legally permissible.
(f) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but which together shall
constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
(i) Attorney's fees. If any legal action is brought by either of the
parties, the party in whose favor final judgment is entered shall be entitled to
recover reasonable attorney's fees from the other party in addition to any other
relief that may be awarded.
(j) MRC Payroll, Inc. It is understood and agreed that the actual
employer of the Employee will probably be MRC Payroll, Inc. ("Payroll") and that
Payroll and the Company will be considered one and the same for purposes of this
Agreement. Notwithstanding the foregoing, the Company agrees to perform or
cause to be performed all of the obligations, duties, and covenants set forth in
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
MEDICAL RESOURCE COMPANIES OF
AMERICA
By:___________________________
Xxxxx X. Xxxxxx
President
EMPLOYEE:
______________________________
Xxxx Xxxxx
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT AGREEMENT, made and entered into this ___ day of
_________, 1996, by and between Greenbriar Corporation, formerly Medical
Resource Companies of America, a Nevada corporation (the "Company"), and Xxxx
Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into an Employment Agreement
dated as of March 15, 1996 (the "Agreement") and
WHEREAS, the parties hereto are desirous of amending the Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and for other valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
Section 3 is hereby amended by changing the term of the Agreement to end
on March 15, 1999, unless terminated prior thereto pursuant to Section 7
of the Agreement.
Section 4 (a) is hereby amended to provide for an annual salary review on
March 15 of each year.
All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year above first written.
EMPLOYEE: GREENBRIAR CORPORATION
_________________________ _________________________
Xxxx Xxxxx Name:
Title:
