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Exhibit 10.78
EMPLOYMENT AGREEMENT
AGREEMENT dated as of November 15, 1997, but effective as of
February 7, 1998 (the "Effective Date"), between UNISON HEALTHCARE
CORPORATION, a Delaware corporation ("Unison"), and XXXXX XXXXXXX
("Employee").
Unison wishes to employ Employee and Employee wishes to be
employed by Unison, in each case, pursuant to the terms and subject to the
conditions hereof.
Accordingly, the parties hereto hereby agree as follows:
1. Employment and Duties. Unison hereby employs Employee,
initially, as its Senior Vice President-Clinical Operations, and Employee
hereby accepts such employment. Employee, who shall devote all her business
time and attention to the business of Unison, shall, initially, have
responsibility for quality care and services, programs, protocols and
compliance and, in such capacity, shall report to the Chief Executive Officer
of Unison. Employee's title and duties may be changed from time to time in
the discretion of the Board of Directors of Unison (the "Board") so long as
she is maintained in an executive capacity.
2. Term. The term of this Agreement shall commence on the
Effective Date and continue for a period of one year, unless earlier
terminated as set forth in Section 6.
3. Compensation. (a) Base Salary. Unison shall pay Employee
a salary, before deducting all applicable withholdings, at the annual rate of
$120,000, in accordance with Unison's standard executive payroll policies as
in effect from time to time. Unison shall consider increases in the annual
rate of pay to be effective January 1 of each year, commencing on January 1,
1999.
(b) Incentive Bonus. The Board's compensation committee
shall design and present to the Board for review, adjustment and adoption an
incentive compensation program for key employees. Such program may include
cash and stock option incentives and will provide for participation by
Employee.
(c) Reimbursable Expenses. In addition to the
compensation referred to above, Unison shall, upon receipt of
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appropriate documentation, reimburse Employee each month for her reasonable
travel, lodging and other ordinary and necessary business expenses consistent
with Unison's policies as in effect from time to time.
4. Benefits. Unison shall, while Employee is employed
hereunder, pay for and provide Employee and her dependents with the same
amount and type of health, medical and life insurance as provided from time
to time to executive officers of Unison.
5. Vacation. Employee shall be entitled to vacation with pay
in accordance with Unison's vacation policy as in effect from time to time.
In addition, Employee shall be entitled to such holidays as Unison may
approve for its executive personnel.
6. Termination. The Board may terminate Employee's employment
hereunder prior to the expiration of the term hereof in the manner provided
in either Section 6(a), Section 6(b) or Section 6(c). Employee may terminate
her employment hereunder at any time effective upon Unison's receipt of at
least 30 days' advance notice to such effect.
(a) For Cause. Unison may terminate this Agreement for
cause upon written notice to Employee stating the facts constituting such
cause, provided that Employee shall have 15 days following such notice to
cure any conduct or act, if curable, alleged to provide grounds for
termination for cause hereunder. Cause shall include material neglect of
duties, willful failure to abide by ethical and good faith instructions or
policies from or set by the Chief Executive Officer of Unison or the Board,
commission of a felony or serious misdemeanor offense or pleading guilty or
nolo contendere to same, the commission by Employee of an act of dishonesty
or moral turpitude involving Unison, Employee's breach of this Agreement, the
filing of bankruptcy proceedings by or against Employee, or breach by
Employee of any other material obligation to Unison.
(b) Without Cause. Unison may terminate this Agreement
at any time immediately, without cause, effective upon Employee's receipt of
notice to such effect. Except as provided in Section 6(c), upon a
termination without cause, Unison shall pay to Employee the base salary due
her through the date of termination and, in addition, shall continue
Employee's salary over the following three-month period at the regular
payment intervals.
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(c) Without Cause After a Change in Control. The
provisions of this Section 6(c) shall apply if Employee's employment with
Unison is terminated, for any reason or for no reason, by Unison after a
change of control. A change of control shall be deemed to have occurred if
(i) a merger or consolidation of Unison with any other corporation results in
effective control of Unison becoming vested in a corporation which is not
under the control of the Board as constituted immediately prior to the
effectiveness of such consolidation or merger, (ii) a complete or partial
liquidation of Unison is completed, or (iii) all or substantially all of
Unison's assets are sold or otherwise disposed of. Upon a termination under
this Section 6(c), Unison shall pay to Employee forthwith the base salary due
her through the date of termination plus an amount equal to three months'
base salary, less applicable withholdings.
(d) Disability. If during the term of this Agreement,
Employee fails to perform her duties hereunder because of illness or other
incapacity for a period of three consecutive months, Unison shall have the
right to terminate this Agreement without further obligation except for any
amounts payable pursuant to disability plans generally applicable to
executive employees. Unison shall establish and maintain during the term of
employment of the Employee a disability insurance program which provides for
monthly disability payments for a period of at least two years from the date
of determination of a disability.
(e) Death. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and Employee's legal
representatives shall be entitled to receive the base salary due Employee
through the date of death.
7. Confidential Information; Non-solicitation. (a)
Confidential Information. Employee acknowledges that Employee may receive,
or contribute to the production of, Confidential Information. For purposes
of this Agreement, Employee agrees that "Confidential Information" shall mean
information or material proprietary to Unison or designated as Confidential
Information by Unison and not generally known by non-Unison personnel, which
Employee develops or of or to which Employee may obtain knowledge or access
through or as a result of Employee's relationship with Unison (including
information conceived, originated, discovered or developed in whole or in
part by Employee). Confidential Information includes, but is not limited to,
the following types of information and other information of a
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similar nature (whether or not reduced to writing) related to Unison's business:
discoveries, inventions, ideas, concepts, research, development, processes,
procedures, "know-how", formulae, marketing techniques and materials, marketing
and development plans, business plans, customer names and other information
related to customers, price lists, pricing policies, methods of operation,
financial information, employee compensation, and computer programs and systems.
Confidential Information also includes any information described above which
Unison obtains from another party and which Unison treats as proprietary or
designates as Confidential Information, whether or not owned by or developed by
Unison. Employee acknowledges that the Confidential Information derives
independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use. Information publicly known
without breach of this Agreement that is generally employed by the trade at or
after the time Employee first learns of such information, or generic information
or knowledge which Employee would have learned in the course of similar
employment or work elsewhere in the trade, shall not be deemed part of the
Confidential Information. Employee further agrees:
(1) To furnish Unison on demand, at any time during or
after employment, a complete list of the names and addresses of all present,
former and potential suppliers, financing or leasing sources, patients,
customers and other contacts gained while an employee of Unison in Employee's
possession, whether or not in the possession or within the knowledge of
Unison.
(2) That all notes, memoranda, documentation and records
in any way incorporating or reflecting any Confidential Information shall
belong exclusively to Unison, and Employee agrees to turn over all copies of
such materials in Employee's control to Unison upon request or upon
termination of Employee's employment with Unison.
(3) That while employed by Unison and thereafter Employee
will hold in confidence and not directly or indirectly reveal, report,
publish, disclose or transfer any of the Confidential Information for any
purpose, except in the course of Employee's work for Unison.
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(4) That any idea in whole or in part conceived of or
made by Employee during the term of her employment, consulting, or similar
relationship with Unison which relates directly or indirectly to Unison's
current or planned lines of business and is made through the use of any of
the Confidential Information of Unison or any of Unison's equipment,
facilities, trade secrets or time, or which results from any work performed
by Employee for Unison, shall belong exclusively to Unison and shall be
deemed a part of the Confidential Information for purposes of this
Agreement. Employee hereby assigns and agrees to assign to Unison all rights
in and to such Confidential Information whether for purposes of obtaining
patent or copyright protection or otherwise. Employee shall acknowledge and
deliver to Unison, without charge to Unison (but at its expense) such written
instruments and do such other acts, including giving testimony in support of
Employee's authorship or inventorship, as the case may be, necessary in the
opinion of Unison to obtain patents or copyrights or to otherwise protect or
vest in Unison the entire right and title in and to the Confidential
Information.
(b) Non-solicitation. During the term of Employee's
employment by Unison and for a period of one year thereafter, Employee agrees
that she shall not (for the purpose of or which results in competition with
Unison or any of its affiliates or subsidiaries) either solicit any past or
existing customers, leasing or financing sources, patients, clients,
suppliers or business patronage of Unison or any of its predecessors,
affiliates or subsidiaries or use any Confidential Information (as defined in
Section 7(a)), nor will she solicit for any purpose the employment of any
employees of Unison or any of its affiliates or subsidiaries.
(c) Injunctions. It is agreed that the restrictions
contained in this Section 7 are reasonable, but it is recognized that damages
in the event of the breach of any of the restrictions will be difficult or
impossible to ascertain; and, therefore, Employee agrees that, in addition to
and without limiting any other right or remedy Unison may have, Unison shall
have the right to an injunction against Employee issued by a court of
competent jurisdiction enjoining any such breach without showing or proving
any actual damage to Unison.
(d) Part of Consideration. Employee also agrees,
acknowledges, covenants, represents and warrants that she is fully and
completely aware that, and further understands that,
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the foregoing restrictive covenants are an essential part of the consideration
for Unison entering into this Agreement and that Unison is entering into this
Agreement in full reliance on these acknowledgments, covenants, representations
and warranties.
(e) Time and Territory Reduction. If the period of time
and/or territory described above are held to be in any respect an
unreasonable restriction, it is agreed that the court so holding may reduce
the territory to which the restriction pertains or the period of time in
which it operates or may reduce both such territory and such period, to the
minimum extent necessary to render such provision enforceable.
(f) Survival. The obligations described in this Section
7 shall survive any termination of this Agreement or any termination of the
employment relationship created hereunder.
8. Governing Law and Venue. Arizona law shall govern the
construction and enforcement of this Agreement and the parties agree that any
litigation pertaining to this Agreement shall be in courts located in
Maricopa County, Arizona.
9. Construction. The language in all parts of this Agreement
shall in all cases be construed as a whole according to its fair meaning and
not strictly for nor against any party. The Section headings contained in
this Agreement are for reference purposes only and will not affect in any way
the meaning or interpretation of this Agreement. All terms used in one
number or gender shall be construed to include any other number or gender as
the context may required. The parties agree that each party has reviewed
this Agreement and has had the opportunity to have counsel review the same
and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of
this Agreement or any amendment or any exhibits thereof.
10. Nondelegability of Employee's Rights and Unison's
Assignment Rights. The obligations, rights and benefits of Employee
hereunder are personal and may not be delegated, assigned or transferred in
any manner whatsoever, nor are such obligations, rights or benefits subject
to involuntary alienation, assignment or transfer. Upon reasonable notice to
Employee, Unison may transfer Employee to an affiliate of Unison, which
affiliate shall assume the obligations of Unison under this Agreement. This
Agreement shall be assigned automatically to any entity merging with or
acquiring Unison or its business.
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11. Severability. In the event any term or provision of this
Agreement is declared by a court of competent jurisdiction to be invalid or
unenforceable for any reason, this Agreement shall remain in full force and
effect, and either (a) the invalid or unenforceable provision shall be
modified to the minimum extent necessary to make it valid and enforceable or
(b) if such a modification is not possible, this Agreement shall be
interpreted as if such invalid or unenforceable provision were not a part
hereof.
12. Attorneys' Fees. Except as otherwise provided herein, in
the event any party hereto institutes an action or other proceeding to
enforce any rights arising out of this Agreement, the party prevailing in
such action or other proceeding shall be paid all reasonable costs and
attorneys' fees by the non-prevailing party, such fees to be set by the court
and not by a jury and to be included in any judgment entered in such
proceeding.
13. Notices. All notices required or permitted hereunder shall
be in writing and shall be deemed duly given upon receipt if either
personally delivered, sent by certified mail, return receipt requested, or
sent by a nationally-recognized overnight courier service, addressed to the
parties as follows:
If to Unison: Unison HealthCare Corporation
0000 X. Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to Employee: Xxxxx Xxxxxxx
Unison HealthCare Corporation
0000 X. Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as any party may provide to the other in accordance
with this Section.
14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous understandings or agreements in
regard thereto. No modification or addition to this Agreement shall be valid
unless in writing, specifically referring to this Agreement and signed by all
parties hereto. No waiver of any rights under this Agreement
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shall be valid unless in writing and signed by the party to be charged with such
waiver. No waiver of any term or condition contained in this Agreement shall be
deemed or construed as a further or continuing waiver of such term or condition,
unless the waiver specifically provides otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
UNISON: EMPLOYEE:
UNISON HEALTHCARE CORPORATION ______________________________
Xxxxx Xxxxxxx
By: _________________________
Xxxxxxx X. Xxxxxxxx
President and Chief
Executive Officer
