EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective as of July 25, 2005, (the “Effective Date”) is made and entered by and between Xxx Xxxxxx (the "Executive") and Pacer Health Corporation, a Florida corporation (the "Company").
(a)
During the Term of Employment, the Executive shall serve as Vice President of Finance and/or an executive position with any of the Company’s subsidiaries with such authority and duties as are generally associated with such positions and as may be assigned to him from time to time by the Board of Directors of the Company that are consistent with such authority and duties. The Executive shall report to the Chief Executive Officer of the Company.
(b)
Except as provided in Section 2(d), Executive shall devote Executive's entire productive time, ability and attention to the business of Company during the Term, and Executive shall not directly or indirectly render any services of business, commercial or professional nature to any other person, firm or corporation, whether for compensation or otherwise, which are in conflict with Company's interests. The Company agrees to use its best efforts to cause the Executive to be elected and continued in office throughout the Term of Employment as a member of the Executive Committee of the Company.
(c)
[Reserved]
(d)
Anything herein to the contrary notwithstanding, nothing in this Agreement shall preclude the Executive from (i) serving on the boards of directors of a reasonable number of other corporations or the boards of a reasonable number of trade associations and/or charitable organizations, (ii) engaging in charitable activities and community affairs and (iii) managing his personal investments and affairs, provided that such activities do not materially interfere with the proper performance of his duties and responsibilities under this Agreement.
3. Compensation and Related Matters.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(i)
Base Salary through the date of death that shall be paid in a single lump sum not later than 45 days following the Executive's death;
(ii)
the balance of any bonus awarded and earned but not paid at the time of termination, which shall be paid in a single lump sum not later than 45 days following the Executive's death; and
(iii) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
(i)
Base Salary through the date of termination, which shall be paid in a single lump sum not later than 45 days following such termination;
(ii)
the balance of any bonus awarded and earned but not paid at he time of termination, which shall be paid in a single lump sum not later than 45 days following the date of termination; and
(iii) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
For the purpose of this subsection, the Executive shall have a "Disability" at such time as he becomes entitled to benefits under the Company's long-term disability insurance plan as in effect from time to time.
(c) Termination by the Company for Cause.
(i) "Cause shall mean:
(A) willful and material breach by Executive of Section 5 or 6 of this Agreement;
(B) conviction of the Executive for a felony or misdemeanor involving moral turpitude;
(C)
breach by the Executive of any alcohol, drug, sexual harassment or other policy of the Company which provides for termination of employment for violation; or
(D) engagement by the Executive in conduct that constitutes neglect or misconduct in carrying out his duties under this Agreement or any other cause for termination with cause under our policy and procedure manual.
(ii) In the event the Company terminates the Executive's employment for Cause, he shall be entitled to and his sole remedies under this Agreement shall be:
(A)
Base Salary through the date of the termination of his employment for Cause, which shall be paid in a single lump sum not later than 45 days following the Executive's termination of employment;
(B)
the balance of any bonus awarded and earned but not paid at the time of termination, which shall be paid in a single lump sum not later than 45 days following the date of termination; and
(C)
other or additional benefits then due or earned in accordance with applicable plans or programs of the Company.
(a)
Termination Without Cause. In the event the Executive's employment with the Company is terminated without Cause (which termination shall be effective as of the date specified by the Company in a written notice to the Executive), other than due to death or Disability, the Executive shall be entitled to and his sole remedies under this Agreement shall be:
(i)
Base Salary through the date of termination of the Executive's employment, which shall be paid in a single lump sum not later than 15 days following the Executive's termination of employment;
(ii) Base Salary, at the annualized rate in effect on the date of termination of the Executive's employment for a period of one month after the termination of employment (the "Severance Period") payable in accordance with the Company's standard payroll practices;
(iii) the balance of any bonus awarded and earned but not paid at the time of termination, which shall be paid in a single lump sum not later than 45 days following the date of termination;
(iv) continued participation in all medical, health and life insurance plans at the same benefit level at which he was participating on the date of the termination of his employment until the earlier of:
(A) the end of the Severance Period; or
(B) the date, or dates, he receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-by-coverage, or benefit-by-benefit, basis); provided that (1) if the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause (vi), he shall receive cash payments equal on an after-tax basis to the cost to him of obtaining the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (vi), (2) such cost shall be deemed to be the lowest reasonable cost that would be incurred by the Executive in obtaining such benefit himself on an individual basis, and (3) payment of such amounts shall be made quarterly in advance; and
(vi) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
"Termination Without Cause" shall mean the Executive's employment is terminated by the Company for any reason other than Cause (as defined in Section 4(c)) or due to death.
(e)
Termination following Non-renewal. In the event that the Company notifies the Executive in writing at least 60 days prior to the expiration of the then current Term of Employment that it is electing to terminate this Agreement at the expiration of the then current Term of Employment and the Executive's employment terminates upon such expiration, whether at the Company's initiative or the Executive's initiative, the Executive shall be entitled to:
(i) Base Salary through the date of termination of the Executive's employment, which shall be paid in a single lump sum not later than 45 days following such termination;
(ii) the balance of any bonus awarded and earned but not paid at the time of termination, which shall be paid in a single lump sum not later than 45 days following the date of termination;
(iii) other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.
(a)
During the Term of Employment and thereafter, the Executive shall not, without the prior written consent of the Company, disclose to anyone (except in good faith in the ordinary course of business to a person who will be advised by the Executive to keep such information confidential) or make use of any Confidential Information (as defined below) except in the performance of his duties hereunder or when required to do so by legal process, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) that requires him to divulge, disclose or make accessible such information. In the event that the Executive is so ordered, he shall give prompt written notice to the Company in order to allow the Company the opportunity to object to or otherwise resist such order.
(a)
"Confidential Information" shall mean all information concerning the business of the Company or any subsidiary relating to any of their products, product development, trade secrets, customers, suppliers, finances, and business plans and strategies. Excluded from the definition of Confidential Information is information (i) that is or becomes part of the public domain, other than through the breach of this Agreement by the Executive, (ii) regarding the Company's business or industry properly acquired by the Executive in the course of his career as an executive in the Company's industry and independent of the Executive's employment by the Company, (iii) that becomes available to the Executive on a non-confidential basis from a source other than the Company, provided that such source is not known by the Executive to be subject to a confidentiality agreement or other obligation of secrecy or confidentiality (whether pursuant to a contract, legal or fiduciary obligation or duty or otherwise) to the Company or any other person or entity or (iv) approved for release by the Company or which the Company makes generally available to the parties without an obligation of confidentiality. For this purpose, information known or available generally within the trade or industry of the Company or any subsidiary shall be deemed to be known or available to the public.
Agreement and undertake the substantial obligations under this Agreement without the Executive's agreement to the following provisions of this Section 6:
(a)
During the Restricted Period (as defined below) he will not, directly or indirectly, as an officer, director, stockholder, partner, associate, employee, consultant, owner, agent, co-venturer or otherwise, become or be interested in or be associated with any other corporation, firm or business engaged in any business that competes with the Company in the Southeast United States. The Executive's ownership, directly or indirectly, of not more than three percent (3%) of the issued and outstanding stock of any corporation or other entity, the shares of which are traded on a national securities exchange or the Nasdaq Stock Market, shall not in any event be deemed to be a violation of the provisions of this Section 6(a).
(b)
During the Restricted Period, the Executive shall not call upon, solicit, divert or take away, or attempt to call upon, solicit, divert or take away, business of a type the same or similar to the business as conducted by the Company prior to the date of termination of the Executive's employment with the Company from any of the Customers of the Company upon whom he called or whom he solicited or to whom he catered or with whom he became acquainted after entering the employ of the Company.
(c)
The Executive acknowledges and agrees that during the time of his employment with the Company, he will gain valuable information about the identity, qualifications and on-going performance of the employees of the Company. During the Restricted Period, the Executive shall not (i) hire, employ, offer employment to, or seek to hire, employ or offer employment to, any of the Company's senior level employees with whom he had contact prior to such termination of employment or (ii) solicit or encourage any such senior level employee to seek or accept employment with any other person or entity.
(d)
The Executive represents and warrants that the knowledge, skills and abilities he currently possesses are sufficient to permit him, in the event of his termination of employment hereunder for any reason, to earn a livelihood satisfactory to himself without violating any provision of this Agreement.
(e)
For the purposes of this Section 6, "Restriction Period" shall mean the period beginning on the date hereof and ending with:
(i)
in the case of a termination of the Executive's employment without Cause or the end of the Severance Period;
(ii)
in the case of a termination of the Executive's employment for Cause, the first anniversary of such termination;
(iii)
in the case of a termination of the Executive's employment upon the expiration of the Term of Employment that results in the commencement of the Non-renewal Severance Period pursuant to Section 4(e) above, the end of the Non-renewal Severance Period; or
(iv)
in the case of a voluntary termination of the Executive's employment pursuant to Section 4(f) above, the date of such termination; provided, however, that within 10 days after the Executive announces his resignation from the Company the Company may notify the Executive that it will cause the Restriction Period to be 12 months and, in consideration for such period, the Company will pay to the Executive, within 30 days after his employment terminates, an amount in cash equal to the annual Base Salary in effect at the time the Executive gives his notice of termination. Failure by the Company to timely make such payment will release the Executive from this obligation.
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Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Florida without reference to principles of conflict of laws. The parties hereby irrevocably consent to the service of any and all process in any action or proceeding arising out of or relating to this Agreement by the mailing of copies of such process to the parties at the address specified in Section 19 hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
PACER HEALTH CORPORATION
By:
____/s/ Rainier Gonzalez_____________________________
Title:
___CEO______________________________
XXX XXXXXX
__/s/ Xxx Albert_______________________________