EXHIBIT 10.29
SANDATA, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 17, 2000, by and between SANDATA,
INC., a Delaware corporation with an office and place of business at 00 Xxxxxx
Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (the "Company"), and XXXXXXX XXXXXX,
who resides at 000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the "Employee").
RECITALS:
A. The Company is engaged in providing computerized data processing
services and custom software programming services principally to the health care
industry as well as the general commercial market.
B. The Company wishes to assure itself of the services of the Employee for
the period provided in this Agreement, and the Employee is willing to serve in
the employ of the Company on a full-time basis, for said period, and upon the
other terms and conditions hereinafter provided.
AGREEMENT:
1. TERM OF EMPLOYMENT.
1.1 The Company hereby employs the Employee, and the Employee hereby
accepts employment with the Company, all in accordance with the terms and
conditions hereof, for an indefinite term commencing on the Commencement Date
(as defined in Subsection 1.2 hereof) and continuing (subject to the provisions
of Section 5 hereof) until either party terminates the Agreement (the
"Employment Period").
1.2 As used in this Agreement, the term "Commencement Date" shall mean
October 17, 2000.
1.3 After expiration of the Employment Period and upon the subsequent
termination of the Employee's employment hereunder (but not in the event of
termination by the Employee), the Employee shall be paid severance pay for six
(6) months (the "Severance Period") at the annual salary rate in effect on the
date of termination and as more specifically described in Section 3 below (the
"Severance Pay"). However, such Severance Pay shall immediately be reduced by
the amount of salary received by the Employee during the Severance Period upon
Employee's obtaining full time employment with another employer. The Company
shall assist Employee in procuring new employment and Employee agrees to give
consideration to any and all prospective employers procured by the Company;
however, Employee may accept or reject any such offer in his sole discretion.
2. DUTIES.
2.1 During the Employment Period, the Employee shall be employed by the
Company and shall serve as its President and Chief Operating Officer, shall be
responsible for the day-to-day operations of the Company and shall perform such
duties and have such powers relating to the Company as shall from time to time
be assigned to him by the Board of Directors of the Company. 2.2 During the
Employment Period, the Employee shall devote his full business time, best
efforts, energies, attention and ability to the business and interests of the
Company.
3. COMPENSATION.
3.1 As full compensation for his services and undertakings pursuant to this
Agreement, the Employee shall be entitled to receive (i) a salary at the rate of
$175,000.00 per year, subject to adjustment as hereafter provided, payable in
twenty-six (26) equal installments or other more frequent installments in
accordance with the regular pay policies of the Company; and (ii) a bonus of
$10,000 on January 31, 2001, provided Employee is in the employ of the Company
at such time, when such salary will increase to $200,000 per year; and (iii)
such other bonuses as shall from time to time be agreed upon.
3.2 During the Employment Period, the Employee shall also be entitled to
(a) four (4) weeks paid vacation annually and (b) participate under the same
terms and conditions as other employees of similar rank in group medical
insurance and other benefits or programs of the Company hereafter established
and made available by the Company to its employees.
3.3 The Company shall deduct from the Employee's salary, bonus or incentive
compensation any federal, state or city withholding taxes, social security
contributions and any other amounts which may be required to be deducted or
withheld by the Company pursuant to any federal, state or city laws, rules or
regulations.
3.4 The Company shall reimburse the Employee, or cause him to be
reimbursed, for all reasonable out-of-pocket expenses incurred by him in the
performance of his duties hereunder or in furtherance of the business and/or
interest of the Company, provided, however, that the Employee shall have
previously furnished to the Company an itemized account, satisfactory to the
Company, in substantiation of such expenditures.
4. STOCK OPTIONS.
4.1 The Employee has been granted by the Company an option to purchase
100,000 shares of Common Stock of the Company, such options to vest over three
(3) years, in accordance with the terms of the Stock Option Agreement attached
thereto and made part of this Agreement as Exhibit A.
4.2 Simultaneously upon the execution of this Agreement, the Employee will
be granted by the Company an option to purchase 150,000 shares of Common Stock
of the Company, such options to vest over seven (7) years commencing December
2000, in accordance with the terms of the Stock Option Agreement attached
thereto and made part of this Agreement as Exhibit B.
4.3 If the Company is separated or reorganized, or merged or consolidated
with another corporation during the Employment Period, there shall be
substituted for the shares issuable upon exercise of the outstanding Options an
appropriate number of shares of each class of stock, other securities or other
assets of the separated or reorganized, or merged or consolidated corporation
which were distributed to the shareholders of the Company in respect of such
shares; provided, however, that 100% of the total number of options granted
pursuant to the terms of the Stock Option Agreement set forth in Section 4.1
above, may be exercised in full by the Optionee as of the effective date of any
such separation, reorganization, merger, or consolidation of the Company without
regard to the installment exercise provisions of the Employee's Stock Option
Agreement, by the Optionee giving notice in writing to the Company of his
intention to so exercise.
5. TERMINATION.
5.1 If the Employee dies or becomes disabled during the Employment Period,
his salary and all other rights under this Agreement shall terminate at the end
of the month during which death or disability occurs. For the purposes of this
Agreement, the Employee shall be deemed to be "disabled" if he has been unable
to perform his duties for six consecutive months or nine months in any
twelve-month period, all as determined in good faith by the Board of Directors
of the Company. Notwithstanding the definition of disabled contained in the
preceding sentence, in the event that the Employee is receiving disability
insurance benefits during any period prior to termination of this Agreement as
provided in this Section 5.1, the Employee's salary shall be reduced by an
amount equal to such disability insurance benefits during such period unless
such disability payments are as a result of an insurance policy funded by the
employee personally.
5.2 The Company, in addition to any other remedies available to it, either
at law or in equity, may terminate this Agreement without any further liability
or obligation to the Employee from and after the date of such termination, by
delivering to Employee written notice upon the occurrence of any of the
following events:
(a) commission by the Employee of a material breach of this Agreement;
provided that the employee shall have sixty (60) days from receipt of
notice to cure any technical breach or
(b) commission by the Employee of a felony or other serious crime more
serious than a misdemeanor.
5.3 In the event that the Company terminates this Agreement for a reason
other than those set forth in Section 5.2 hereof (but not in the event of
termination by Employee), the Company shall pay the Employee such Severance Pay
as described in Section 1.3 above.
6. COVENANT NOT TO DISCLOSE
6.1 The Employee covenants and undertakes that he will not at any time
during or after the termination of his employment hereunder reveal, divulge, or
make known to any person, firm, corporation, or other business organization
(other than the Company or its affiliates, if any), or use for his own account
any customers' lists, trade secrets, or any secret or any confidential
information ("Confidential Information") of any kind used by the Company during
his employment by the Company, and made known (whether or not with the knowledge
and permission of the Company, whether or not developed, devised, or otherwise
created in whole or in part by the efforts of the Employee, and whether or not a
matter of public knowledge unless as a result of authorized disclosure) to the
Employee by reason of his employment by the Company. The Employee further
covenants and agrees that he shall retain such knowledge and information which
he has acquired or shall acquire and develop during his employment respecting
such Confidential Information in trust for the sole benefit of the Company, its
successors and assigns and upon termination of his employment with the Company,
return same to the Company. Employee shall, if asked to by the Company, sign a
statement acknowledging, among other things, that Employee has returned all such
Confidential Information.
7. COVENANT NOT TO COMPETE; NON-INTERFERENCE.
7.1 The Employee covenants and undertakes that, during the period of his
employment hereunder and if the Company terminates Employee's employment
hereunder pursuant to Sections 5.2 (a) or (b), or if Employee voluntarily
terminates his employment hereunder, for a period of three (3) years thereafter,
he will not, without the prior written consent of the Company, directly or
indirectly, and whether as principal or as agent, officer, director, employee,
consultant, or otherwise, alone or in association with any other person, firm,
corporation, or other business organization, carry on, or be engaged, concerned,
or take part in, or render services to, or own, share in the earnings of, or
invest in the stock, bonds, or other securities of any person, firm,
corporation, or other business organization (other than the Company or its
affiliates, if any) engage in a business which is in direct competition with the
Company's core business of data processing and/or system programming (a "Similar
Business") except in the course of his employment hereunder; provided, however,
that the Employee may invest in stock, bonds, or other securities of any Similar
Business (but without otherwise participating in the activities of such Similar
Business) if (A) such stock, bonds, or other securities are listed on any
national or regional securities exchange or have been registered under Section
12 (g) of the Securities Exchange Act of 1934; and (B) his investment does not
exceed, in the case of any class of the capital stock of any one issuer, two
(2%) percent of the issued and outstanding shares, or in the case of bonds or
other securities, two (2%) percent of the aggregate principal amount thereof
issued and outstanding.
7.2 The Employee covenants and undertakes that during the Employment Period
and for a period of three (3) years thereafter, he will not, whether for his own
account or for the account of any other person, firm, corporation or other
business organization, interfere with the Company's relationship with, or
endeavor to entice away from the Company any person, firm, corporation or other
business organization who or which at any time during the Employee's employment
with the Company was an employee, consultant, agent, supplier, a customer of the
Company or in the habit of dealing with the Company.
8. COVENANT TO REPORT; PATENT, ETC.
8.1 The Employee shall promptly communicate and disclose to the Company all
technical inventions, discoveries, improvements and new writings, in any form,
whatsoever (hereinafter "Inventions") including, without limitation, all
software, programs, routines, techniques, procedures, training aides and
instructional manuals conceived, developed or made by him during his employment
by the Company, whether solely or jointly with others, and whether or not
patentable or copyrightable, (A) which relate to any matters or business carried
on or being developed by the Company, or (B) which result from or are suggested
by any work done by him in the course of his employment by the Company. The
Employee shall also promptly communicate and disclose to the Company all other
data obtained by him concerning the business or affairs of the Company in the
course of his employment by the Company. Provided, however, that nothing herein
shall prevent the Employee from using general business knowledge and management
techniques developed during the course of his employment.
8.2 All written materials, records and documents made by the Employee or
coming into his possession during the Employment Period concerning the business
or affairs of the Company shall be the sole property of the Company, and, upon
the termination of the Employment Period or upon the request of the Company
during the Employment Period, the Employee agrees to render to the Company such
reports of the activities undertaken by the Employee or conducted under the
Employee's direction, pursuant hereto during the Employment Period as the
Company may request.
8.3 The Employee will assign to the Company all right in the Inventions and
will assist the Company or its designee during and subsequent to his employment,
at the Company's sole expense, in filing patent and/or copyright applications
on, and obtaining for the Company's benefit patents and/or copyrights for such
Inventions in any and all countries, and will assign to the Company all such
patent and/or copyright applications, all patents and/or copyrights which may
issue thereon, said Inventions to be and remain the sole and exclusive property
of the Company or its designee whether or not patented and/or copyrighted.
8.4 Any Invention conceived, developed or made by the Employee within one
(1) year of the termination of his employment, whether such termination of
employment is voluntary or involuntary, shall be deemed to have arisen out of
and been conceived, developed or made by the Employee during his employment by
the Company, unless established to have been conceived, developed or made after
the termination of such employment.
9. REMEDIES.
The Employee acknowledges that the Company will have no adequate remedy at
law if the Employee violates the terms of Section 6, 7 or 8 hereof. In such
event, the Company shall have the right, in addition to any other rights it may
have, to obtain in any court of competent jurisdiction injunctive relief to
restrain any breach or threatened breach of or otherwise to specifically enforce
any of the covenants of such Sections.
10. COMPLIANCE WITH OTHER AGREEMENTS.
10.1 Employee and Company represent and warrant to the other that each is
under no contract, restriction or obligation which is inconsistent with
execution of this Agreement or the performance of his/its duties hereunder. Each
hereby agrees to indemnify the other for all losses, damages, costs, fees and
expenses including attorney's fees incurred by the other in connection with any
of the following:
(a) any breach of the foregoing representations and warranties;
(b) any lawsuit or other legal proceeding in which it is claimed that
the other has breached any trust, confidence or duty of loyalty, etc.;
(c) any action or matter relating to the above representations and
warranties.
11. WAIVERS.
A waiver by the Company or the Employee of a breach of any of the
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
12. BINDING EFFECT; BENEFITS.
This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors, assigns, heirs, and legal
representatives, including any corporation or other business organization with
which the Company may merge or consolidate or to which it may transfer
substantially all of its assets. Insofar as the Employee is concerned, this
Agreement, being personal, cannot be assigned.
13. NOTICES.
All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given or made when delivered in person or four (4) days after
dispatch by registered or certified mail, postage paid, return receipt
requested, to the party to whom the same is so given or made, to the address of
such party hereinabove set forth.
14. ENTIRE AGREEMENT; AMENDMENTS; SURVIVAL COVENANTS.
This Agreement contains the entire Agreement, and supersedes all prior
agreements and understandings, oral or written, between the parties hereto with
respect to the subject matter hereof. This Agreement may not be waived, changed,
amended, modified or discharged orally, but only by an agreement in writing
signed by the party against whom any waiver, change, amendment, modification or
discharge is sought. The covenants of the Employee contained in Sections 6, 7
and 8 (insofar as they relate to the Employment Period) of this Agreement shall
survive the termination of the Employment Period.
15. HEADINGS.
The headings contained in this Agreement are for reference purposes only
and shall not affect the construction or interpretation of this Agreement.
16. SEVERABILITY.
The invalidity of all or any part of any Section of this Agreement shall
not render invalid the remainder of this Agreement or the remainder of such
Section. If any provision of this Agreement is so broad as to be enforceable,
such provisions shall be interpreted to be only so broad as is enforceable.
17. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall, when executed, be deemed to be an original, but all of which together
shall constitute one and the same instrument.
18. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles relating to
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
SANDATA, INC.
By: /s/Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Chairman
By: /s/Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
