EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of the 1st day of August, 1997, by and between Xxxxx Home Health,
Inc., a Utah corporation ("Employer"), and Xxxx X. Xxxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as provided herein, and
Employee desires to accept such employment; and
WHEREAS, Employee shall, as an employee of Employer, have access to
confidential information with respect to Employer and its affiliates;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment. Employer hereby employs Employee and Employee hereby accepts
employment with Employer upon the terms and conditions hereinafter set forth.
2. Duties. Subject to the power of the Board of Directors of Employer to
elect and remove officers, Employee shall serve Employer as President of
Employer and shall perform, faithfully and diligently, the services and
functions relating to such office or otherwise reasonably incident to such
office as may be designated from time to time by the Board of Directors of
Employer; provided, however, that all such services and functions shall be
reasonable and within the Employee's area of expertise. Employee shall perform
his duties principally at the offices of Employer located in St. Xxxxxx, Utah,
with such limited travel to such other locations from time to time as the Board
of Directors of Employer may reasonably prescribe. Employee shall devote his
full time, attention, energies and business efforts to his duties hereunder and
to the promotion of the business and interests of Employer and its affiliates.
The foregoing provision shall not be construed to prohibit Employee's passive
investments; provided that such activities do not detract in any material
respect from the performance of Employee's duties hereunder.
3. Term. The term of this Agreement shall commence as of the date hereof
and shall end on June 30, 2000, unless earlier terminated pursuant to the terms
hereof, and shall be extendable to June 30, 2003, in the sole discretion of
Employer (the "Term").
4. Compensation. As compensation for his services rendered under this
Agreement, during the Term, Employee shall be entitled to receive the following:
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(a) Salary. Employee shall be paid an annual salary as provided in
Exhibit A attached hereto.
(b) Vacation and Benefits. Employee shall be entitled to and shall
receive such group benefits as Employer may provide to its other employees
at comparable salaries and responsibilities of Employee.
(c) Bonus. Employee shall also be entitled to receive bonuses as
provided by the Board of Directors of the Employer.
(d) Expenses. Employer shall reimburse Employee for all reasonable and
necessary out-of-pocket travel and other expenses incurred by Employee in
rendering services required under this Agreement, on a monthly basis upon
submission of a detailed monthly statement and reasonable documentation.
(e) Additional Compensation. Such additional compensation as set forth
on Exhibit A attached hereto.
(f) Disability Insurance. Employer shall continue to pay premiums with
respect to the disability insurance of Employee during the term of this
Agreement at the current rate.
(g) Stock Options. In the event Employer's ultimate parent, MB
Software Corporation ("MB"), shall adopt a stock option plan for its
executive officers, MB shall make available to Employee options for the
common stock of MB on the terms and subject to the conditions on which such
options are made available to executive employees of MB or its affiliates
with responsibilities similar in scope to those of Employee.
5. Confidentiality.
(a) Acknowledgment of Proprietary Interest. Employee recognizes the
proprietary interest of Employer and its affiliates in any Trade Secrets
(as hereinafter defined) of Employer and its affiliates. Employee
acknowledges and agrees that any and all Trade Secrets currently known by
Employee or learned by Employee during the course of his engagement by
Employer or otherwise, whether developed by Employee alone or in
conjunction with others or otherwise, shall be and is the property of
Employer and its affiliates. Employee further acknowledges and understands
that his disclosure of any Trade Secrets will result in irreparable injury
and damage to Employer and its affiliates. As used herein, "Trade Secrets"
means all confidential and proprietary information of Employer and its
affiliates, now owned or hereafter acquired, including, without limitation,
information derived from reports, investigations, experiments, research,
work in progress, drawing, designs, plans, proposals, codes, marketing and
sales programs, client lists, client mailing lists, financial projections,
cost summaries, pricing formula, and all other concepts, ideas, materials,
or information prepared or performed for or by Employer or its affiliates
and
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information related to the business, products or sales of Employer or its
affiliates, or any of their respective customers, other than information
which is otherwise publicly available; provided, however, "Trade Secrets"
does not include any information that is known or readily obtainable by
other home care providers or is otherwise known to persons not employed by
Employee.
(b) Covenant Not-to-Divulge Trade Secrets. Employee acknowledges and
agrees that Employer and its affiliates are entitled to prevent the
disclosure of Trade Secrets. As a portion of the consideration for the
employment of Employee and for the compensation being paid to Employee by
Employer, Employee agrees at all times during the Term and thereafter to
hold in strict confidence and not to disclose or allow to be disclosed to
any person, firm or corporation, other than to persons engaged by Employer
and its affiliates to further the business of Employer and its affiliates,
and not to use except in the pursuit of the business of Employer and its
affiliates, the Trade Secrets, without the prior written consent of
Employer, including Trade Secrets developed by Employee.
(c) Return of Materials at Termination. In the event of any
termination or cessation of his employment with Employer for any reason
whatsoever, Employee will promptly deliver to Employer all documents, data
and other information pertaining to Trade Secrets. Employee shall not take
any documents or other information, or any reproduction or excerpt thereof,
containing or pertaining to any Trade Secrets.
(d) Competition During Employment. Employee agrees that during the
Term, neither he, nor any of his affiliates, will directly or indirectly
compete with Employer or its affiliates in any way, and that he will not
act as an officer, director, employee, consultant, shareholder, lender, or
agent of any entity which is engaged in any business of the same nature as,
or in competition with, the businesses being conducted by Employer and its
affiliates (as used herein, a business is engaged in competition with the
business being conducted by Employer and its affiliates if it is involved
in the home health care business in the State of Utah, or any other State
where the Employer or its affiliates conduct business during the Term);
provided, however, that this Section 5(d) shall not prohibit Employee or
any of his affiliates from purchasing or holding an aggregate equity
interest of up to 1%, so long as Employee and his affiliates combined do
not purchase or hold an aggregate equity interest of more than 5%, in any
business in competition with Employer and its affiliates. Furthermore,
Employee agrees that during the Term, he will undertake no planning for the
organization of any business activity competitive with the work he performs
as an employee of Employer and Employee will not combine or conspire with
any other employees of Employer and its affiliates for the purpose of the
organization of any such competitive business activity.
6. Prohibition on Disparaging Remarks. Employee shall, from the date of
this Agreement on, refrain from making disparaging, negative or other similar
remarks concerning Employer or any of its affiliates to any third party.
Similarly, Employer and its affiliates shall from
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the date of this Agreement on, refrain from making disparaging, negative or
other similar remarks concerning Employee to any third party.
7. Termination. This Agreement and the employment relationship created
hereby shall terminate upon the occurrence of any of the following events:
(a) On June 30, 2000 (unless extended by Employer);
(b) The death of Employee;
(c) The "disability" (as hereinafter defined) of Employee;
(d) Written notice to Employee from Employer of termination for "just
cause" (as hereinafter defined);
(e) Written notice to Employee from Employer of termination for any
reason other than "just cause;"
(f) 60 days prior written notice to Employer from Employee of
termination; or
(g) Breach by Employer of any provision of this Agreement.
For purposes of Section 7(c) above, the "disability" of Employee shall mean
his inability, because of mental or physical illness or incapacity, to perform
his duties under this Agreement for a continuous period of 120 days or for 120
days out of a 150-day period.
For purposes of Section 7(d) above, "just cause" shall mean (a) the failure
or inability for any reason (other than disability) of Employee to devote his
full business time to the businesses of Employer and its affiliates, except as
permitted hereby, (b) the commission by Employee of any act involving moral
turpitude or the commission by Employee of any act or the suffering by Employee
of any occurrence or state of facts, which renders Employee incapable of
performing his duties under this Agreement (other than disability), or adversely
affects or could be expected to adversely affect Employer's business reputation,
(c) Employee's being convicted of a felony, (d) any breach by Employee of any of
the terms of, or the failure to perform any material covenant contained in, this
Agreement and following notice thereof from Employer to Employee, Employee does
not cure such breach or failure within fifteen (15) days thereafter; provided,
however, that Employee will not be entitled to cure any breach or failure under
this subclause (d) more than one time in any consecutive three month period, or
(e) the violation by Employee of reasonable instructions or policies established
by Employer or its affiliates which have been communicated to Employee with
respect to the operation of their businesses and affairs or Employee's failure
to carry out the reasonable instructions of the Board of Directors of Employer
or MB or any of their affiliates and following notice thereof from Employer to
Employee, Employee does not cure any such violation or failure within fifteen
(15) days thereafter; provided, however, that Employee will not be entitled to
cure any
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violation or failure under this subclause (e) more than one time in any
consecutive three month period.
Notwithstanding anything to the contrary in this Agreement, the provisions
of Sections 5 and 6 above shall survive any termination, for whatever reason, of
Employee's employment under this Agreement. In the event of the termination of
Employee's employment prior to June 30, 2000, Employee shall be entitled only to
the compensation earned by him as of the date of termination, except that if
Employee's employment is terminated pursuant to Section 7(e) or Section 7(g)
above, Employee shall be entitled to receive the compensation then payable
pursuant to Section 4(a) until June 30, 2000.
8. Remedies. Employee and Employer and their affiliates recognize and
acknowledge that in the event of any default in, or breach of any of, the terms,
conditions or provisions of this Agreement (either actual or threatened) by the
other remedies at law shall be inadequate. Accordingly, Employee and Employer
and their affiliates agree that in such event, each of them and their respective
affiliates shall have the right of specific performance and/or injunctive relief
in addition to any and all other remedies and rights at law, in equity or
provided herein, and such rights and remedies shall be cumulative.
9. Acknowledgments. Employee acknowledges and recognizes that the
enforcement of any of the provisions set forth in Section 5 and 6 above by
Employer and its affiliates will not interfere with Employee's ability to pursue
a proper livelihood. Employee recognizes and agrees that the enforcement of this
Agreement is necessary to ensure the preservation and continuity of the business
and good will of Employer and its affiliates.
10. Notices. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other
shall be deemed to have been duly given if given in writing and personally
delivered or sent by facsimile transmission, courier service, overnight delivery
service or by mail, registered or certified, postage prepaid with return receipt
requested, as follows:
If to Employer: c/o MB Software Corporation
0000 X. Xxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Fax No.: (000) 000-0000
If to Employee: Xxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xx. Xxxxxx, Xxxx 00000
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Notices delivered personally or by facsimile transmission, courier service or
overnight delivery shall be deemed communicated as of actual receipt; mailed
notices shall be deemed communicated as of three days after the date of mailing.
11. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto and supersedes all prior agreements and understandings, oral or
written between the parties hereto. No modification or amendment of any of the
terms, conditions or provisions herein may be made otherwise than by written
agreement signed by the parties hereto.
12. Governing Law and Venue. THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE INTERPRETED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF UTAH, WITHOUT REGARD TO ITS CHOICE OF LAW PRINCIPLES.
13. Parties Bound. This Agreement and the rights and obligations hereunder
shall be binding upon and inure to the benefit of Employer and Employee, and
their respective heirs, personal representatives, successors and assigns.
Employer shall have the right to assign this Agreement to any affiliate or to
its successors or assigns. The terms "successors" and "assigns" shall include
any person, corporation, partnership or other entity that buys all or
substantially all of Employer's assets or all of its stock, or with which
Employer merges or consolidates. The rights, duties or benefits to Employee
hereunder are personal to him, and no such right or benefit may be assigned by
him. The parties hereto acknowledge and agree that Employer's affiliates are
third-party beneficiaries of the covenants and agreements of Employee set forth
in Sections 5 and 6 above.
14. Estate. If Employee dies prior to the payment of all sums owed, or to
be owed, to Employee pursuant to Section 4 above, then such sums, as they become
due, shall be paid to Employee's estate.
15. Enforceability. If, for any reason, any provision contained in this
Agreement should be held invalid in part by a court of competent jurisdiction,
then it is the intent of each of the parties hereto that the balance of this
Agreement be enforced to the fullest extent permitted by applicable law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any covenant is too broad to be enforced as written, it is the intent of each
of the parties that the court should reform such covenant to such narrower scope
as it determines enforceable.
16. Waiver of Breach. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party.
17. Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
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18. Costs. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
19. Other Obligations. Employee represents and warrants that he is not
subject to any agreement which would be violated or breached as a direct or
indirect result of Employee executing this Agreement or Employee becoming an
employee of Employer.
20. Affiliate. An "affiliate" of any party hereto shall mean any person
controlling, controlled by or under common control with such party.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument, but only one of which need be produced.
22. Attorneys Fees. Each party shall bear its own attorneys' fees incurred
in connection with this transaction; provided that in the event of a dispute
regarding any breach of the terms hereof, the prevailing party shall be entitled
to have its attorneys' fees paid by the non-prevailing party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
XXXXX HOME HEALTH, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
Its: President
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
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EXHIBIT A
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1. Position: President/Administrator
2. Base Salary: $110,648 annually, payable in prorated bi-
weekly installments on the regularly
scheduled payday for all employees of
Employer, in accordance with the currently
effective policy of Employer, to begin with
the first regularly scheduled payday following
the date of this Agreement, subject to annual
upward adjustments as determined by the
Board of Directors.
3. Bonus Compensation: $25,000 bonus for the first year of this
agreement, payable fourteen (14) days after
execution of this Agreement.
4. Benefits: As provided in Employer's employee
handbook from time to time, and as provided
to Employer's other employees from time to
time, without reduction except with
Employee's consent, Employee to be entitled
to four weeks vacation per year, including the
first year of this Agreement.
5. Retirement: Contributions shall be made for the benefit of
Employee to any retirement plan maintained
by Employer or for the benefit of other
employees of Employer, commensurate with
the Employee's salary and position, and such
additional retirement benefit program for the
benefit of Employee as the Board of Directors
by may from time to time determine.
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