EXHIBIT 4.9.4
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 30th day of December,
1996, between Greenbriar Corporation, a Nevada corporation (hereinafter referred
to as "Employer"), and XXXXX X. XXXXXXX (hereinafter referred to as "Employee").
In consideration of the mutual promises hereinafter set forth, the parties
hereto agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee and Employee agrees to
serve Employer, upon the terms and conditions hereinafter set forth.
2. TERM. The employment of Employee hereunder and this Employment
Agreement shall commence the date hereof and shall continue in effect for a
period of three years or until terminated sooner pursuant to Section 7 hereof.
3. DUTIES. During the term of this Agreement, Employee shall be engaged
as an executive employee of Employer and shall report to the Board of Directors
and Executive Committee of Employer. Employee's initial title shall be
President and Chief Executive Officer of Employer, with such powers and duties
in those capacities as are set forth in the Bylaws of Employer. If Employee is
elected or appointed with the Employee's consent to an office with any of
Employer's subsidiaries or affiliates during the term of this Agreement, the
Employee will serve in such capacity or capacities without additional
compensation. Employee shall also be appointed as a Class I member of the Board
of Directors with a term expiring in 1998 and as a member of the Executive
Committee of Employer. Employee shall perform his duties from the Employer's
main office in Addison, Texas.
4. EXTENT OF SERVICES. During the term of this Agreement, Employee shall
devote substantially his entire working time, attention, and energies to the
business of Employer, and shall not during the term of service be actively
engaged in any other business activities. However, this shall not be construed
as preventing Employee from investing the Employee's personal assets in such
form or manner as may require occasional or incidental services on the part of
Employee in the management, conservation and protection of such investments and
provided that such investments cannot be construed as being competitive or in
conflict with the business of Employer.
5. COMPENSATION.
5.1. Base Salary. Employer will pay Employee during the Employee's term
of service hereunder, as compensation for the Employee's services, the sum of
$200,000 per year (sometimes hereinafter referred to as the "Base Salary"),
payable in biweekly or other installments in accordance with the general
practices of the Employer. Employee shall be entitled to participate in any and
all executive bonus programs at levels equal to those of employees in comparable
executive
positions. Any bonus compensation shall be payable in the discretion of the
Board of Directors of the Employer.
5.2. Benefits.
5.2.1. The Employee shall be entitled to the same benefits generally
provided to other executives of Employer of comparable rank and responsibility
as well as to those generally provided to all officers of Employer in accordance
with the policies of the Employer from time to time. These are to include, but
not be limited to, health insurance and vacation pursuant to the Employer's
standard policy.
5.2.2. The Employer shall compensate or provide the designated
beneficiaries of Employee with the benefits accrued or vested under any
compensation and/or other benefit plan of the Employer in which Employee was a
participant as of the date of his death.
6. EXPENSES. During the term of employment provided for herein,
Employer shall pay or reimburse Employee, in accordance with its standard
policy, upon submission of vouchers by the Employee for all reasonable expenses
incurred by the Employee in the interest of Employer's business.
7. TERMINATION.
7.1. Termination Events. Subject to the provisions of Paragraph 7.2 of
this Section, this Agreement shall terminate:
7.1.1. Upon death of Employee.
7.1.2. At the option of the Employer if Employee shall become disabled and
remain disabled for a period of six (6) months. Disability shall be defined as
Employee's inability through illness or other cause to perform his normal work
load as measured by the twelve (12) months preceding the commencement of such
disability. During such disability, Employee shall be compensated in accordance
with Employer's standard policy regarding disability.
7.1.3. Upon mutual agreement.
7.1.4. At any time at the option of Employee.
7.1.5. At the Employer's option for any good cause. For purposes of this
Section, "good cause" for termination shall mean: (a) the conviction of Employee
of any act involving moral turpitude, or (b) any material breach by Employee of
any of the terms of, or the failure to perform any covenant contained in, this
Agreement.
7.1.6. For any reason other than those set forth in Sections 7.1.1.,
7.1.2., 7.1.3., 7.1.4 or 7.1.5.
EMPLOYMENT AGREEMENT Page 2
7.2. Consequences of Termination.
7.2.1. Upon death of Employee, all base salary payments under Section 5.1
shall be paid to the end of the term hereof.
7.2.2. If the Employer terminates the Employee because of the disability
of the Employee, such termination will be treated the same as a termination due
to death under Section 7.2.1 with the termination date being the date specified
by the Employer after the six month disability period.
7.2.3. Upon termination by mutual agreement under Section 7.1.3 or by the
Employee under Section 7.1.4., the Employee shall be paid all salary prorated to
the date of termination.
7.2.4. Upon termination under Section 7.1.6., Employee shall be entitled
to receive severance compensation equal to all Base Salary remaining under the
term specified in Section 2, at the rate then in effect under Section 5.1,
payable over such remaining term.
8. TRADE SECRETS AND CONFIDENTIAL INFORMATION. During the term of this
Agreement, Employee will have access to customer lists and compilations of
information and records specific to and regularly used in the operation of the
business of Employer. Employee acknowledges that such information constitutes
valuable and confidential information of the Employer. Employee shall not
disclose any of the aforesaid private company secrets, directly or indirectly,
nor use them in any way, either during the term of this Agreement or after
termination of employment. All files, records, electronic and magnetic files,
documents, specifications, equipment and similar information relating to the
business of Employer, whether prepared by Employee or otherwise coming into
Employee's possession, shall remain the exclusive property of Employer and shall
not be removed from the premises of Employer except as shall be necessary for
Employee to perform Employee's duties under this Agreement. Upon termination of
this Agreement for any reason, Employee will deliver all such materials in his
possession and all copies thereof to Employer.
9. GENERAL PROVISIONS.
9.1 Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail by
Employer to the residence of Employee, or by Employee to Employer's principal
office.
9.2. Assignability. This Agreement and the rights, interests and benefits
hereunder shall not be assignable or in any way alienated by Employee. Employer
shall have the right of assignment and transfer of its rights hereunder to any
successor to the majority of its assets and any such successor shall be bound by
the terms hereof.
EMPLOYMENT AGREEMENT Page 3
9.3. Waiver of Breach. The waiver by Employer or Employee of a breach of
any provisions of this Agreement by the other shall not operate or be construed
as a waiver of any subsequent breach.
9.4. Entire Agreement. This instrument contains the entire agreement of
the parties. It may not be changed orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
9.5. Attorneys' Fees. In the event that there shall be any litigation or
court proceeding with respect to this Agreement or the obligations of the
parties hereunder, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs from the other party.
9.6. Governing Law. This Employment Agreement shall be governed by the
laws of the State of Texas.
IN WITNESS WHEREOF, Employer has caused this Employment Agreement to be
executed in its corporate name by its corporate officers thereunto duly
authorized, and Employee has executed this Employment Agreement.
EMPLOYEE:
______________________________________
XXXXX X. XXXXXXX
EMPLOYER:
GREENBRIAR CORPORATION
By:___________________________________
Name:_____________________________
Title:____________________________
EMPLOYMENT AGREEMENT Page 4
