Employment agreement between the Company and Xxxxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 3, 1996 between XXXXXX X.
XXXXXX (the "Executive") and COMPLETE MANAGEMENT, INC., a New York corporation
(the "Company").
WHEREAS, the Executive is presently employed by the Company and/or by
MEDICAL MANAGEMENT, INC. ("MMI"); and
WHEREAS, the Company, MMI, and CMI Acquisition Corporation, a wholly
owned subsidiary of the Company, have merged under which MMI is a wholly owned
subsidiary of CMI (the "Merger"); and
WHEREAS, the Executive is willing to enter into an agreement with the
Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Term of Agreement. Subject to the terms and conditions hereof, the
term of employment of the Executive under this Employment Agreement shall be for
the period commencing on the effective date of the Merger (the "Commencement
Date") and terminating on December 31, 1999, unless sooner terminated as
provided in accordance with the provisions of Section 6 hereof or extended in
accordance with the provisions of Section 6 hereof. (Such term of employment is
herein sometimes called the "Employment Term".)
2. Employment. As of the Commencement Date, the Company hereby agrees
to employ the Executive as Vice President and Chief Financial Officer and the
Executive hereby accepts such employment and agrees to perform his duties and
responsibilities hereunder in accordance with the terms and conditions
hereinafter set forth.
3. Duties and Responsibilities. Executive shall be Vice President and
Chief Financial Officer of the Company during the Employment Term. Executive
shall report to and be subject to the direction of the Chief Executive Officer
and shall perform such duties consistent with his title and position as may be
assigned to him from time to time by the Chief Executive Officer. During the
Employment Term, Executive shall devote his full time, skill, energy and
attention to the business of the Company and shall perform his duties in a
diligent, trustworthy, loyal and businesslike manner.
4. Compensation. The Company shall pay to Executive a salary at the
rate of $175,000 per year payable in such manner as it shall determine, but in
no event any less often than monthly, less withholding required by law and other
deductions agreed to by Executive.
5. Expenses and Benefits.
(a) The Company shall, consistent with its policy of reporting
and reimbursement of business expenses, reimburse Executive for such ordinary
and necessary business related expenses as shall be incurred by Executive in the
course of the performance of his duties under this Agreement.
(b) Executive shall be eligible to participate to the extent that
he qualifies in all benefit plans, including without limitation, pension, term
life insurance, hospitalization, medical insurance and disability plans as are
made available from time to time to executives of the Company.
(c) Executive shall be entitled to three weeks of paid vacation
annually, which shall be taken in accordance with the procedures of the Company
in effect from time-to-time.
6. Termination.
(a) The Company shall have the right to terminate the employment
of the Executive under this Agreement for disability in the event Executive
suffers an injury, illness or incapacity of such character as to substantially
disable him form performing his duties hereunder for a period of more one
hundred eighty (180) consecutive days upon the Company giving at least thirty
(30) days written notice of termination; provided, however, that if the
Executive is eligible to receive disability payments pursuant to a disability
insurance policy paid for by the Company, the Executive shall assign such
benefits to the Company for all periods as to which he is receiving full payment
under this Agreement.
(b) This Agreement shall terminate upon the death of the
Executive.
(c) The Company may terminate this Agreement at any time
because of (i) Executive's material breach of any term of this Agreement or (ii)
the willful engaging by the Executive in misconduct which is materially
injurious to the Company, monetarily or otherwise; provided, in each case,
however, that the Company shall not terminate this Agreement pursuant to this
Section 6(c) unless the Company shall first have delivered to the Executive a
notice which specifically identifies such breach or misconduct and the Executive
shall not have cured the same within fifteen (15) days after receipt of such
notice.
(d) The Executive may terminate his employment for "Good
Reason" if:
(i) he is assigned, without his express written consent, any
duties inconsistent with his positions, duties, responsibilities, authority and
status with the Company as of the date hereof, or a change in his reporting
responsibilities or titles as in effect as of the date hereof, except in
connection with the termination of his employment by him without Good Reason; or
(ii) his compensation is reduced.
7. Liquidated Damages. It is understood that if (i) the Executive shall
elect to terminate his employment for a Good Reason (as defined above) or (ii)
his employment is terminated by the Company otherwise than as provided in
Section 6, the Executive will suffer damages which will be difficult to
calculate. Consequently, in the event of a termination of Executive's employment
for either of these reasons, Executive shall be entitled by way of liquidated
damages and not as a penalty to receive a single lump sum payment in an amount
equal to the amount of the compensation payments that, but for his termination
of employment under this Section 7, would have been payable to the Executive for
the remainder of the Employment Term.
Such payment shall be made by the Company to the Executive within
fifteen (15) days following his termination of employment for the reason set
forth in this Section 7. The Executive shall not be required to mitigate the
amount of any payment provided in this Section 7 nor shall the amount payable
under this Section be reduced by any compensation earned by the Executive after
the date of his termination of employment.
8. Revealing of Trade Secrets, etc. Executive acknowledges the interest
of the Company in maintaining the confidentiality of information related to its
business and shall not at any time during the Employment Term or thereafter,
directly or indirectly, reveal or cause to be revealed to any person or entity
the supplier lists, customer lists or other confidential business information of
the Company; provided, however, that the parties acknowledge that it is not the
intention of this paragraph to include within its subject matter (a) information
not proprietary to the Company, (b) information which is then in the public
domain, or (c) information required to be disclosed by law.
9. Covenants Not to Compete. During the Employment Term and for a
period of one year thereafter, the Executive shall not, directly or indirectly:
(i) in any manner, engage in any business which competes with any business
conducted by the Company and will not directly or indirectly own, manage,
operate, join, control or participate in the ownership, management, operation or
control of, or be employed by or connected in any manner with any corporation,
firm or business that is so engaged, (provided, however, that nothing herein
shall prohibit the Executive from owning not more than three (3%) percent of the
outstanding stock of any publicly held corporation), (ii) persuade or attempt to
persuade any current client or former client with, or to reduce the amount of
business it does or intends or anticipated doing with the Company.
10. Opportunities. During his employment with the Company, and for one
year thereafter, Executive shall not take any action which might divert from the
Company any opportunity learned about by him during his employment with the
Company (including without limitation during the Employment Term) which would be
within the scope of any of the businesses then engaged in or planned to be
engaged in by the Company.
11. Survival. In the event that this Agreement shall be terminated,
then notwithstanding such termination, the obligations of Executive pursuant to
Section 8 and 9 of this Agreement shall survive such termination.
12. Contents of Agreement, Parties in Interest, Assignment, etc. This
Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Executive hereunder which are of
a personal nature shall neither be assigned nor transferred in whole or in party
by Executive. This Agreement shall not be amended except by a written instrument
duly executed by the parties.
13. Severability. If any term or provision of this Agreement shall be
held to be invalid or unenforceable for any reason, such term or provision shall
be ineffective to the extent of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provision had not been
contained herein.
14. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally or five (5) days after
dispatch by registered or certified mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made:
If to the Company addressed to: Complete Management, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Executive addressed to: Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
or to such other address as the one party shall specify to the other party in
writing.
15. Counterparts and Headings. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all which
together shall constitute one and the same instrument. All headings are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
COMPLETE MANAGEMENT, INC.
By:____________________________
XXXXXX X. XXXXXXXXXX
Chief Executive Officer
___________________________
XXXXXX X. XXXXXX
