EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") made as of the 24th day of April, 1998,
between HEALTHRITE, INC., a Delaware corporation with its principal office
presently located at 00000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000
("HealthRite"), and XXXXXXX X. XXXXXXXXX, an individual presently residing in
Owings Mills, Maryland (the "Executive").
W I T N E S S E T H:
WHEREAS, HealthRite and the Executive are parties to an employment
agreement dated as of April 24, 1998 ("April 1998 Agreement"); and
WHEREAS, HealthRite and the Executive desire to enter into a new Agreement
regarding, among other things, the employment of the Executive by HealthRite
and, concurrently therewith, to terminate the April 1998 Agreement, all as
hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Employment. HealthRite hereby employs the Executive, and the
Executive hereby accepts employment with HealthRite, on the terms and
conditions set forth in this Agreement.
2. Duties of Employee. The Executive will perform and discharge well
and faithfully such duties as an executive officer of HealthRite as may be
assigned to him from time to time by the Board of Directors of HealthRite
("Board"). The Executive will be employed as Chairman and Chief Executive
Officer of HealthRite, and will hold such other titles as may be given to
him from time to time by the Board. The Executive will devote his full
time, attention and energies to the business of HealthRite and will not,
during the Employment Period (as defined in Section 3), be employed or
involved in any other business activity, whether or not such activity is
pursued for gain, profit or other pecuniary advantage; provided, however,
that this section will not be construed as preventing the Executive from
(a) passively investing his personal assets, (b) acting as a member of the
Board of Directors or Trustees of HealthRite or any other entity not in
competition with HealthRite (or an affiliate of HealthRite), or (c) being
involved in any community, civic or similar activity. Except for reasonable
travel requirements consistent with his positions and except as otherwise
provided herein, all duties of the Executive shall be routinely discharged
at HealthRite's facilities located in Owings Mills, Maryland.
3. Term of Employment. The Executive's employment under this Agreement
will be for a period (the "Employment Period")
commencing upon the date of this Agreement and ending at the end of the
term of this Agreement pursuant to Section 19, unless the Executive's
employment is sooner terminated in accordance with Section 5 or one of the
following provisions:
(a) Termination for Cause. The Executive's employment under this
Agreement may be terminated at any time during the Employment Period
for Cause, by action of the Board, upon giving notice of such
termination to the Executive at least 15 days prior to the date upon
which such termination is to take effect. As used in this Agreement,
"Cause" means any of the following events:
(i) the Executive is convicted of or enters a plea of guilty or
nolo contendere to a felony, a crime of falsehood, or a crime
involving fraud or moral turpitude, or the actual incarceration of the
Executive for a period of 45 consecutive days;
(ii) the Executive willfully and repeatedly fails to follow the
lawful instructions of the Board after the Executive's receipt of
written notice of such instructions, other than a failure resulting
from the Executive's incapacity because of physical or mental illness;
(iii) a government regulatory agency finally recommends or orders
in writing that HealthRite terminate the employment of the Executive;
or
(iv) the Executive violates the covenant not to compete contained
in Section 8 or the confidentiality provisions of Section 9.
Notwithstanding the foregoing, the Executive's employment under this
Agreement will not be deemed to have been terminated for Cause under
Section 3(a)(i) or (ii) if such termination took place solely as a result
of:
(i) questionable judgment on the part of the Executive;
(ii) any act or omission believed by the Executive, in good
faith, to have been in, or not opposed to, the best interests of
HealthRite; or
(iii) any act or omission in respect of which a determination
could properly be made that the Executive met the applicable standard
of conduct prescribed for indemnification or reimbursement or payment
of expenses under the Articles of Incorporation or By-laws of
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HealthRite or the directors' and officers' liability insurance of
HealthRite, in each case as in effect at the time of such act or omission.
If the Executive's employment is terminated under the provisions of this
subsection, then all rights of the Executive under Section 4 will cease as
of the effective date of such termination.
(b) Termination Without Cause. The Executive's employment under this
Agreement may be terminated at any time during the Employment Period
without Cause, by action of the Board, upon giving notice of such
termination to the Executive at least 30 days prior to the date upon which
such termination is to take effect. If the Executive's employment is
terminated under the provisions of this subsection, then the Executive will
be entitled to receive the compensation set forth in Section 6.
(c) Voluntary Termination, Retirement or Death. If the Executive
voluntarily terminates employment without "Good Reason" (as defined in
Section 5), retires or dies, the Executive's employment under this
Agreement will be deemed terminated as of the date of the Executive's
voluntary termination, retirement or death, and all rights of the Executive
under Section 4 will cease as of the date of such termination and any
benefits payable to the Executive will be determined in accordance with the
retirement and insurance programs of HealthRite then in effect.
(d) Disability. If the Executive is incapacitated by accident,
sickness, or otherwise so as to render the Executive mentally or physically
incapable of performing the essential duties required of the Executive
under Section 2, notwithstanding reasonable accommodation, for a continuous
period of six months, then, upon the expiration of such period or at any
time thereafter, by action of the Board, the Executive's employment under
this Agreement may be terminated immediately upon giving the Executive
notice to that effect. If the Executive's employment is terminated under
the provisions of this subsection, then all rights of the Executive under
Section 4 will cease as of the last business day of the week in which such
termination occurs, and the Executive will thereafter be entitled to the
benefits to which he is entitled under any disability or other plan of
HealthRite in which he is then a participant.
4. Employment Period Compensation and Related Matters.
(a) Salary. For services performed by the Executive
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under this Agreement, HealthRite will pay the Executive a salary, in the
aggregate, during the Employment Period, at the annualized rate of
$150,000, payable at the same times as salaries are payable to other
executive employees of HealthRite. HealthRite may, from time to time,
increase (but not decrease) the Executive's salary, and any and all such
increases will be deemed to constitute amendments to this subsection to
reflect the increased amounts, effective as of the dates established for
such increases by the Board in the resolutions authorizing such increases.
(b) Bonus. For services performed by the Executive under this
Agreement, he shall be entitled to participate in such bonus or similar
award plan or program as may be maintained from time to time by HealthRite
for its executive officers. In addition, HealthRite may, from time to time,
pay such other bonus or bonuses to the Executive as the Board, in its sole
discretion, deems appropriate. The payment of any such bonuses will not
reduce or otherwise affect any other obligation of HealthRite to the
Executive provided for in this Agreement.
(c) Pension and Welfare Benefits. HealthRite will provide the
Executive, during the Employment Period, with pension and welfare benefits
(within the meaning of Section 3 of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")) in the aggregate not less favorable than
those received by other employees of HealthRite.
(d) Fringe Benefits.
(i) In General. Except as otherwise provided in this subsection,
HealthRite will provide the Executive, during the Employment Period,
with such fringe benefits as may be provided generally from time to
time for its executive officers.
(ii) Vacation. The Executive will be entitled to not less than
four weeks of vacation per calendar year. The right to carry over
unused vacation days will be subject to the executive personnel
policies of HealthRite from time to time in effect.
(e) Expense Reimbursement. The Executive will be entitled to
reimbursement of all expenses incurred by him in the discharge of his
duties hereunder, or otherwise in furtherance of the business of
HealthRite, provided he renders an accounting of such expenses in such
manner as may be required from time to time for employees generally.
(f) Salary Deferral. The Executive may request that
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the payment of any portion of his base salary and/or bonus for any calendar
year be deferred. Such request must be made in writing to HealthRite before
the beginning of such calendar year and must include the period of deferral
requested by the Executive (the "Deferral Period"). If the Board approves
such request, the Executive will be entitled to receive, at the end of the
Deferral Period, the deferred portion of his base salary and/or bonus plus
interest at a compounded rate of 6% per annum. Any salary and/or bonus
which is deferred as described herein will be credited to an account on the
books of HealthRite established in the name of the Executive. However, this
account will not be funded, and HealthRite shall not be deemed to be a
trustee for the Executive with respect to any deferred amount. The
Executive will be a general unsecured creditor of HealthRite for any amount
due him under this section. HealthRite will not be required to segregate
any funds representing such deferred amounts, and nothing herein will be
construed as providing for such segregation.
(g) Stock Options. The Executive has been granted and will receive
100,000 options to acquire 100,000 shares of HealthRite common stock
pursuant to the HealthRite 1993 Stock Option Plan.
5. Resignation of the Executive for Good Reason.
(a) Events Giving Right to Terminate for Good Reason. The Executive
may resign for Good Reason at any time during the Employment Period, as
hereinafter set forth. As used in this Agreement, the term "Good Reason"
means any of the following:
(i) any reduction in title or a material adverse change in the
Executive's responsibilities or authority which are inconsistent with,
or the assignment to the Executive of duties inconsistent with, the
Executive's status as Chairman and Chief Executive Officer of
HealthRite;
(ii) any reassignment of the Executive to a principal office
which is more than 15 miles from Owings Mills, Maryland;
(iii) any removal of the Executive from office except for any
termination of the Executive's employment under the provisions of
Section 3(a) or (d);
(iv) any reduction in the Executive's annual base salary as in
effect on the date hereof or as the same may be increased from time to
time;
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(v) any failure by HealthRite to provide the Executive with
benefits at least as favorable as those enjoyed by the Executive under
any of the pension or welfare plans (as such terms are defined in
ERISA Section 3) of HealthRite in which the Executive is participating
on the date of this Agreement, or the taking of any action that would
materially reduce any of such benefits, unless the change is part of a
change applicable in any case to employees generally; and
(vi) any material breach of this Agreement by HealthRite, coupled
with the failure to cure the same within 30 days after receipt of a
written notice of such breach from the Executive.
(b) Notice of Termination. At the option of the Executive, exercisable
by the Executive within 90 days after the occurrence of the event
constituting Good Reason, the Executive may resign from employment under
this Agreement by a notice in writing ("Notice of Termination") delivered
to HealthRite and the provisions of Section 6 will thereupon apply.
(c) Special Right of Termination. Notwithstanding anything herein to
the contrary, but subject to the provisions of Section 3(a), within the
one-year period immediately following the occurrence of a "Change in
Control" (as defined in Subsection (d)), the Executive may terminate his
employment for any or no reason by delivering a written notice, similar to
a Notice of Termination, to HealthRite; and such termination will be deemed
for all purposes to constitute a resignation for Good Reason. In such
event, he will be entitled to the payments set forth in Section 6.
(d) Change in Control Defined. For purposes of this Agreement, the
term "Change in Control" means any of the following:
(i) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities and Exchange Act of 1934 (the "Exchange
Act")), other than HealthRite, a subsidiary of HealthRite, an employee
benefit plan of HealthRite or a subsidiary of HealthRite (including a
related trust), becomes the beneficial owner (as determined pursuant
to Rule 13d-3 under the Exchange Act), directly or indirectly of
securities of HealthRite representing more than 20% of the combined
voting power of HealthRite's then outstanding securities;
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(ii) the occurrence of, or execution of an agreement providing
for, a sale of all or substantially all of the assets of HealthRite to
an entity which is not a direct or indirect subsidiary of HealthRite;
(iii) the occurrence of, or execution of an agreement providing
for, a reorganization, merger, consolidation or similar transaction
involving HealthRite, unless (A) the shareholders of HealthRite
immediately prior to the consummation of any such transaction will
initially own securities representing a majority of the voting power
of the surviving or resulting corporation, and (B) the directors of
HealthRite immediately prior to the consummation of such transaction
will initially represent a majority of the directors of the surviving
or resulting corporation; and
(iv) any other event which is at any time irrevocably designated
as a "Change in Control" for purposes of this Agreement by resolution
adopted by a majority of the then non-employee directors of HealthRite
who were elected other than pursuant to an election contest (subject
to Rule 14a-11 of the Exchange Act) or other proxy contest, in either
case occurring after the date of this Agreement.
6. Rights in Event of Certain Termination of Employment. In the event that
the Executive resigns from employment for Good Reason, by delivery of a Notice
of Termination or other permitted notice to HealthRite, or the Executive's
employment is terminated by HealthRite without Cause, Executive will be entitled
to receive the payments set forth in this section.
(a) Basic Payments. The Executive will be paid an amount equal to two
times the sum of (i) the highest annualized base salary paid to him during
the calendar year of termination or the immediately preceding two calendar
years, and (ii) the highest bonus paid to him with respect to one of the
three calendar years immediately preceding the year of termination. Such
amount will be paid to the Executive in 24 equal monthly installments
(without interest), beginning 30 days following the date of termination of
employment. Notwithstanding the preceding provisions of this subsection to
the contrary, in the event this section becomes applicable following a
Change in Control, the Executive will, within 30 days after his termination
of employment, be paid a lump sum equal to the present value of the amounts
otherwise payable under this subsection. For purposes of the preceding
sentence, present value will be determined by using the short-term
applicable
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federal rate under Section 1274 of the Internal Revenue Code of 1986, as
amended (the "Code"), in effect on the date of termination of employment.
For purposes of this subsection, to the extent relevant, base salary and
bonuses with any predecessor of HealthRite or an affiliate thereof shall be
taken into account.
(b) Supplemental Payment in Lieu of Certain Benefits. In lieu of
continued pension, welfare and other benefits, a lump sum cash payment of $
[estimate value of 2 years of benefits] will be paid to the Executive
within 30 days following the date of termination of employment.
(c) Excise Tax Matters. In the event that the amounts and benefits
payable under this section, when added to other amounts and benefits which
may become payable to the Executive by HealthRite, are such that he becomes
subject to the excise tax provisions of Code Section 4999, HealthRite will
pay him such additional amount or amounts as will result in his retention
(after the payment of all federal, state and local excise, employment, and
income taxes on such payments and the value of such benefits) of a net
amount equal to the net amount he would have retained had the initially
calculated payments and benefits been subject only to income and employment
taxation. For purposes of the preceding sentence, the Executive will be
deemed to be subject to the highest marginal federal, state and local tax
rates. All calculations required to be made under this subsection will be
made by HealthRite's independent certified public accountants, subject to
the right of Executive's representative to review the same. All such
amounts required to be paid will be paid at the time any withholding may be
required under applicable law, and any additional amounts to which the
Executive may be entitled will be paid or reimbursed no later than 15 days
following confirmation of such amount by HealthRite's accountants. In the
event any amounts paid hereunder are subsequently determined to be in error
because estimates were required or otherwise, the parties agree to
reimburse each other to correct such error, as appropriate, and to pay
interest thereon at the applicable federal rate (as determined under Code
Section 1274A for the period of time such erroneous amount remained
outstanding and unreimbursed). The parties recognize that the actual
implementation of the provisions of this subsection are complex and agree
to deal with each other in good faith to resolve any questions or
disagreements arising hereunder.
7. Expiration of Agreement. In the event this Agreement expires by its
terms in accordance with the provisions of Section
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19(a), no additional amounts or benefits will be paid hereunder.
8. Covenant Not to Compete.
(a) The Executive hereby acknowledges and recognizes the highly
competitive nature of the business of HealthRite and accordingly agrees
that, during and for the applicable period set forth in Subsection (c), the
Executive will not:
(i) be engaged, directly or indirectly, either for his own
account or as agent, consultant, employee, partner, officer, director,
proprietor, investor (except as an investor owning less than 5% of the
stock of a publicly owned company) or otherwise of any person, firm,
corporation, or enterprise engaged, in the continental United States
("Non-Competition Area"), in any business which at the relevant time
during employment or at the date of termination of employment is
competitive to any of the businesses of HealthRite or any of its
subsidiaries; or
(ii) provide financial or other assistance to any person, firm,
corporation, or enterprise engaged in any activity in which HealthRite
or any of its subsidiaries is engaged during the Employment Period, in
the Non-Competition Area.
(b) It is expressly understood and agreed that, although the Executive
and HealthRite consider the restrictions contained in Subsection (a)
reasonable for the purpose of preserving for HealthRite and its
subsidiaries their goodwill and other proprietary rights, if a final
judicial determination is made by a court having jurisdiction that the time
or territory or any other restriction contained in Subsection (a) is an
unreasonable or otherwise unenforceable restriction against the Executive,
the provisions of Subsection (a) will not be rendered void but will be
deemed amended to apply as to such maximum time and territory and to such
other extent as such court may judicially determine or indicate to be
reasonable.
(c) The provisions of this section will be applicable commencing on
the date of this Agreement and ending as follows:
(i) at the termination of the payments and benefits provided
under Section 6; provided, however, that this clause will not apply in
the event Executive's termination of employment occurs following a
Change in Control;
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(ii) one year following the termination of Executive's
employment, in the case of a voluntary termination without Good
Reason; or
(iii) in all other cases, the date of Executive's termination of
employment.
9. Confidentiality.
(a) As used in this section, the term "Confidential Information" means
any and all information regarding the organization, business or finances of
HealthRite or any of its subsidiaries and affiliates, including, but not
limited to, any and all business plans and strategies, financial
information, proposals, reports, marketing plans and information, cost
information, customer information, claims history and experience data,
sales volume and other sales statistics, personnel data, pricing
information, concepts and ideas, information respecting existing and
proposed investments and acquisitions, and information regarding customers
and suppliers, but the term Confidential Information will not include
information which prior to the Executive's receipt thereof (i) was
generally publicly available, or (ii) was in the Executive's possession
free of any restrictions on its use or disclosure and from a source other
than HealthRite or any of its subsidiaries or affiliates.
(b) The Executive acknowledges and agrees that his employment by
HealthRite will afford him an opportunity to acquire Confidential
Information and that the misappropriation or disclosure of any Confidential
Information would cause irreparable harm to HealthRite and its subsidiaries
and affiliates.
(c) During the Employment Period and for a period of two years
thereafter, the Executive will not use for the benefit of anyone other than
HealthRite and its subsidiaries and affiliates or disclose any of the
Confidential Information for any reason or purpose whatsoever except to
authorized representatives of such business entities, as directed or
authorized by HealthRite, or as required by law.
(d) With respect to those items of Confidential Information which
constitute trade secrets under applicable law, the Executive's obligations
of confidentiality and nondisclosure as set forth in this section will
continue and survive after the two-year period as provided in Subsection
(c) to the greatest extent permitted by applicable law.
(e) The Executive will not remove any records,
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documents or any other tangible items (excluding the Executive's personal
property) from the premises of HealthRite or its subsidiaries or
affiliates, in either original or duplicate form, except as needed in the
ordinary course of performing services hereunder.
(f) Upon termination of this Agreement, the Executive will immediately
surrender to the owner thereof all documents in his possession, custody or
control embodying the Confidential Information or any part thereof and will
not thereafter remove the same from the premises on which it is located.
10. Remedies. Executive acknowledges and agrees that the remedy at law of
HealthRite for a breach or threatened breach of any of the provisions of Section
8 or 9 would be inadequate and, in recognition of this fact, in the event of a
breach or threatened breach by the Executive of any of the provisions of Section
8 or 9, it is agreed that, in addition to the remedy at law, HealthRite will be
entitled to, without posting any bond, and the Executive agrees not to oppose
any request of HealthRite for, equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction,
or any other equitable remedy which may then be available. Nothing herein
contained will be construed as prohibiting HealthRite from pursuing any other
remedies available to it for such breach or threatened breach.
11. Arbitration. HealthRite and Executive recognize that in the event a
dispute should arise between them concerning the interpretation or
implementation of this Agreement, lengthy and expensive litigation will not
afford a practical resolution of the issues within a reasonable period of time.
Consequently, except as otherwise provided herein, each party agrees that all
disputes, disagreements and questions of interpretation concerning this
Agreement are to be submitted for resolution to the American Arbitration
Association ("Association") in Baltimore, Maryland, in accordance with the
Individual Employment Dispute Resolution rules of the Association. HealthRite or
the Executive may initiate an arbitration proceeding at any time by giving
notice to the other in accordance with the rules of the Association. The
Association will designate a single arbitrator to conduct the proceeding, but
HealthRite and the Executive may, as a matter of right, require the substitution
of a different arbitrator chosen by the Association. Each such right of
substitution may be exercised only once. The arbitrator will not be bound by the
rules of evidence and procedure of the courts of the State of Maryland, but will
be bound by the substantive law applicable to this Agreement. The decision of
the arbitrator, absent fraud, duress, incompetence or gross and obvious error of
fact, will be final and binding upon the parties and will be
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enforceable in courts of proper jurisdiction. Following written notice of a
request for arbitration, HealthRite and the Executive will be entitled to an
injunction restraining all further proceedings in any pending or subsequently
filed litigation concerning this Agreement, except as otherwise provided herein.
12. Legal Expenses. HealthRite will pay to the Executive all reasonable
legal fees and expenses when incurred by the Executive in seeking to obtain or
enforce any right or benefit provided by this Agreement, provided he brings the
action in good faith.
13. Indemnification. HealthRite will indemnify the Executive, to the
fullest extent permitted under Delaware and federal law, with respect to any
threatened, pending or completed legal or regulatory action, suit or proceeding
brought against him by reason of the fact that he is or was a director, officer,
employee or agent of HealthRite, or is or was serving at the request of
HealthRite as a director, officer, employee or agent of another person or
entity. To the fullest extent permitted by Delaware and federal law, HealthRite
will, in advance of final disposition, pay any and all expenses incurred by the
Executive in connection with any threatened, pending or completed legal or
regulatory action, suit or proceeding with respect to which he may be entitled
to indemnification hereunder. HealthRite will use its best efforts to obtain
insurance coverage for the Executive under a policy covering directors and
officers against litigation, arbitrations and other legal and regulatory
proceedings; provided, however, that nothing herein is to be construed as
requiring such action if the Board determines that such insurance coverage
cannot be obtained at commercially reasonable rates.
14. Notices. Any notice required or permitted to be given under this
Agreement will, to be effective hereunder, be given to HealthRite, in the case
of notices given by the Executive, and will, to be effective hereunder, be given
by HealthRite, in the case of notices given to the Executive. Any such notice
will be deemed properly given if in writing and if mailed by registered or
certified mail, postage prepaid with return receipt requested, to the residence
of the Executive, in the case of notices to the Executive, and to the principal
office of HealthRite, in the case of notices to HealthRite.
15. Waiver. No provision of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by the Executive and an executive officer of HealthRite, each
such officer specifically designated by the Board. No waiver by any party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to
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be performed by such other party will be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
16. Assignment. This Agreement is not assignable by any party hereto,
except by HealthRite to any successor in interest to the business of HealthRite.
17. Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter of this Agreement and, in accordance with
the provisions of Section 25, supersedes any prior agreement of the parties.
18. Successors; Binding Agreement.
(a) HealthRite will require any successor (whether direct or indirect,
by purchase, merger, consolidation, or otherwise) to all or substantially
all of the business and/or assets of HealthRite to expressly assume and
agree to perform this Agreement in the same manner and to the same extent
that HealthRite would be required to perform it if no such succession had
taken place. Failure by HealthRite to obtain such assumption and agreement
prior to the effectiveness of any such succession will constitute a
material breach of this Agreement. As used in this Agreement, "HealthRite"
means HealthRite as hereinbefore defined and any successor to the business
and/or assets of HealthRite, as aforesaid, which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees. If the
Executive should die while any amount is payable to the Executive under
this Agreement if the Executive had continued to live, all such amounts,
unless otherwise provided herein, will be paid in accordance with the terms
of this Agreement to the Executive's devisee, legatee, or other designee,
or, if there is no such designee, to the Executive's estate.
19. Termination.
(a) Unless the Executive's employment is terminated pursuant to the
provisions of Section 3 or Section 5, the term of this Agreement will be
for a period commencing on the date of this Agreement and ending on
December 31, 2000; provided, however, that this Agreement will be
automatically renewed on January 1, 2000 for the two-year period commencing
on such date and ending on December 31, 2001, unless either party gives
written notice of nonrenewal to
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the other party on or before November 1, 1999 (in which case this Agreement
will continue in effect through December 31, 2000); and provided further,
that if this Agreement is renewed on January 1, 2000, it will be
automatically renewed on January 1 of each subsequent year ("Annual Renewal
Date") for a period ending two years from each Annual Renewal Date unless
either party gives written notice of nonrenewal to the other party at least
60 days prior to an Annual Renewal Date (in which case this Agreement will
continue in effect for a term ending one year from the Annual Renewal Date
immediately following such notice).
(b) Any termination of the Executive's employment under this Agreement
or of this Agreement will not affect the benefit, noncompetition and
confidential information provisions of Section 6, 8, 9 or 12, which will,
if relevant, survive any such termination and remain in full force and
effect in accordance with their respective terms.
(c) Except as provided in Section 25, nothing herein will be construed
as limiting, restricting or eliminating any rights the Executive may have
under any plan, contract or arrangement to which he is a party or in which
he is a vested participant; provided, however, that any termination
payments required hereunder will be in lieu of any severance benefits to
which he may be entitled under a severance plan or arrangement of
HealthRite; and provided further, that if the benefits under any such plan
or arrangement may not legally be eliminated, then the payments hereunder
will be correspondingly reduced in such equitable manner as the Board may
determine.
20. No Mitigation or Offset. The Executive will not be required to mitigate
the amount of any payment provided for in this Agreement by seeking employment
or otherwise; nor will any amounts or benefits payable or provided hereunder be
reduced in the event he does secure employment, except as may otherwise be
provided herein.
21. Validity. The invalidity or unenforceability of any provisions of this
Agreement will not affect the validity or enforceability of any other provision
of this Agreement, which will remain in full force and effect.
22. Applicable Law. Except to the extent preempted by federal law, this
Agreement will be governed by and construed in accordance with the domestic
internal law of the State of Delaware.
23. Number. Words used herein in the singular will be construed as being
used in the plural, as the context requires,
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and vice versa.
24. Headings. The headings of the sections, subsections and paragraphs of
this Agreement are for convenience only and will not control or affect the
meaning or construction or limit the scope or intent of any of the provisions of
this Agreement.
25. Effective Date; Termination of Prior Agreement. This Agreement will
become effective immediately upon the execution and delivery of this Agreement
by the parties hereto. Upon the execution and delivery of this Agreement, any
prior agreement relating to the subject matter hereof, including without
limitation the April 1998 Agreement, will be deemed automatically terminated and
be of no further force or effect.
27. Withholding For Taxes. All amounts and benefits paid or provided
hereunder will be subject to withholding for taxes as required by law.
28. Individual Agreement. This Agreement is an agreement solely between and
among the parties hereto. It is intended to constitute a nonqualified unfunded
arrangement for the benefit of a key management employee and will be construed
and interpreted in a manner consistent with such intention.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HEALTHRITE, INC.
By /s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx, Director
(SEAL) Attest:
------------------------------
Xxxxxxx X. Xxxx
(Assistant) Secretary
("HealthRite")
Witness:
XXXXXXX X. XXXXXXXXX (SEAL)
---------------------------------- -------------------------------------
Xxxxx Xxxx Xxxxxxx X. XxxXxxxxx
("Executive")
Commission 3/01/00
Expires:
15
