EXHIBIT 10.85
CORAM EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the
1st day of August, 2000, between Coram, Inc. (the "Company"), and Xxxxxxx Xxxxx
(the "Employee").
WHEREAS, the Company and the Employee desire to set forth the
terms and conditions of Employee's employment with the Company.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT OF THE EMPLOYEE.
1.1 Duties and Status
Employment Duties. The Company hereby engages the Employee as Senior Vice
President, Field Sales of the Company. The Employee accepts such employment on
the terms and conditions set forth in this Agreement. During Employee's
employment with the Company, the Employee shall exercise such authority and
perform such duties as are normally associated with the position of Senior Vice
President, Field Sales, as described in the job description for such position
from time to time, and such other reasonable duties related to the operation of
the Company as may be assigned to Employee from time to time by Employee's
supervisor, the Chief Executive Officer or by the Board of Directors of the
Company (the "Board").
(a) Time. The Employee agrees to devote substantially all of
Employee's business time, attention, skill and best efforts to the
performance of Employee's duties as an employee of the Company.
2. COMPENSATION AND BENEFITS.
2.1 Cash Compensation. As cash compensation for Employee's services
under this Agreement, the Employee shall be compensated as follows:
2.1.1 Base Salary. The Company shall pay the Employee an annual
salary (the "Base Salary") in periodic equal installments in accordance
with the normal payroll practices of the Company. Employee's, initial
Base Salary shall be Two Hundred-Thirty Thousand Dollars ($230,000) and
shall be subject to periodic review.
2.1.2 Bonus/Incentive Plan Compensation. Employee shall be eligible
for annual bonus compensation in an amount determined pursuant to the
Company's Bonus or Incentive Plan as modified and in effect from time to
time if and when Employee is eligible according to the terms and
conditions of the particular plan.
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2.1.3 Discretionary Bonus. In addition to all other compensation
due or payable hereunder, the Employee may be paid additional cash
bonuses. Such cash bonuses, if any, shall be determined in the sole
discretion of the Chief Executive Officer or by the Board.
2.2 Additional Benefits. In addition to all compensation due or payable
hereunder, the Company will provide the Employee with additional benefits as
follows:
2.2.1 Expenses. The Company will reimburse the Employee for such
reasonable out-of-pocket expenses as the Employee may incur in the
rendition of the services contemplated hereby upon presentation of written
documentation in accordance with the Company's then applicable Expense and
Travel Policies.
2.2.2 Participation in Employee Benefit Plans. The Employee is
entitled to participate in any health, medical, dental, disability,
medical reimbursement and group life insurance plan and each other
qualified or nonqualified employee benefit plan covering employees of the
Company, if and when Employee is eligible according to the terms and
conditions of the particular plan.
3. SEVERANCE PROVISIONS.
3.1 Employee's Termination or Company Termination for Cause. If the
Employee's employment under this Agreement is terminated at the Employee's
volition and upon thirty (30) days notice or the Company terminates employment
for cause (as defined below in part 3.1 (d) of this Agreement), on the date of
termination the Employee shall be entitled to receive, and the Company shall pay
to the Employee:
(a) Base Salary and any other earned, but unpaid, compensation for
the period ending on such termination;
(b) Reimbursements pursuant to Subsection 2.2.1 hereof for expenses
incurred prior to the date of termination; and
(c) Benefits pursuant to Subsection 2.2.2 hereof, if any, payable
to or on behalf of the Employee upon Employee's termination of employment
under any employee benefit plans, under the terms and conditions for
benefit payments set forth in such plans.
(d) For purposes of this Agreement, "for cause" shall mean conduct
by the Employee amounting to: (i) fraud or dishonesty in the course of
employment with the Company; (ii) willful misconduct or knowing violation
of law in the course of employment with the Company; (iii) a conviction
or plea of guilty or nolo contendere to a felony, or other crime involving
dishonesty or relating in any way to Employee's job duties; or (iv)
failure or refusal to satisfactorily perform Employee's job duties or
functions; provided, however, that nothing in this Section 3 or any other
part of the
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Agreement shall alter in any way the At-Will employment relationship
between the parties as described in Section 12, Status, below.
3.2 Company's Termination Without Cause.
3.2.1 Separation Benefits. If the Employee's employment under this
Agreement is terminated by the Company without cause and upon the
execution by Employee of the Company's Standard Separation and Waiver
Agreement as described below, the Employee shall be entitled to receive,
and the Company shall pay or provide to the Employee:
(a) the amounts and benefits set forth in Sections 3.1(a), (b) and
(c);
(b) an additional amount in the form of Base Salary (at the rate in
effect at the time of termination) and health benefits (subject to the
terms and conditions in effect at the time of termination) for a period of
time equal to one month for each completed year of service as of
Employee's termination date; with a minimum of six (6) months and a
maximum of twelve (12) months in accordance with the Company's current
Separation Pay and Benefit Plan ("Severance"). Such health benefits will
be provided under COBRA coverage and Employee will be required to continue
paying his or her portion of the premium (at the rate in effect at the
time of the termination) for the Severance period.
3.2.2 Payment Method. Severance payments shall be made according to
the regular and customary payroll and benefits practices of the Company
and subject to the terms and condition of the Company's standard
Separation and Waiver Agreement. Such payments shall not be made unless
and until Employee executes and delivers a Separation and Waiver
Agreement, including a general release of the Company (in a form
reasonably satisfactory to and prepared by the Company) from all claims by
the Employee relating to employment or the termination of employment,
except for the obligations of the Company under this Agreement.
4. RESTRICTIVE COVENANTS.
4.1 Nondisclosure and Confidentiality.
4.1.1 Employee acknowledges that, the information, observations,
and data obtained by Employee during employment with the Company
pertaining to the business or affairs of the Company are the property of
the Company, all of which is hereby agreed to constitute confidential
information of the Company ("Confidential Information"). To ensure the
continued secrecy and confidentiality of such Confidential Information,
Employee hereby covenants and agrees that during the Employee's employment
with the Company and for a period of five (5) years after Employee's
termination, Employee shall keep secret and shall not divulge any of the
names of, or any other information relative to, the clients, business and
affairs of Company, and any and all business associations or activities of
Company and its clients or any other information, observation, or data
that
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Employee acquires during Employee's employment with the Company. Employee
also further covenants and agrees that Employee will not keep, or use for
Employee's personal advantage, either directly or indirectly, any written
Confidential Information (regardless of the manner or form in which such
documentation exists) relative to the business or affairs of the Company
or its clients and, furthermore, will not furnish or make available any
such information to any third party.
4.1.2 Employee acknowledges that the Company's trade secrets
include, but are not limited to, accounting, financing and pricing
information, pricing and business analysis tools, processes, formulae,
data, know-how, software programs, improvements, marketing materials,
inventions (whether patentable or not), techniques, marketing plans,
strategies, forecasts, computer programs and other copyrightable material,
the compensation and terms of employment of other employees, customers and
customer lists, and other information relating to the Company's business
which is secret and of value ("Trade Secrets"). The parties agree that
such Trade Secrets are the property of the Company, shall remain under the
full control of the Company and shall be provided to Employee on a need
to know basis. In consideration for entering into this Agreement,
Employee hereby covenants and agrees that during the Employee's employment
with the Company and after Employee's termination, Employee shall not
divulge to any third party at any time any information regarding such
Trade Secrets or the substance thereof without the prior written consent
of the Company and, furthermore, with respect to such Trade Secrets,
Employee shall comply with all of the provisions of Section 4 hereof.
4.2 Agreement Not to Solicit Employees. During the Employee's employment
with the Company and for a period of one (1) year following the termination of
such employment, provided the Company is not in breach or default hereof, the
Employee shall not on the Employee's own behalf or on behalf of others, either
directly or indirectly, solicit, divert or hire, or attempt to solicit, divert
or hire, employees of the Company, whether the employment of any such person is
pursuant to a written agreement, for a determined period, or at-will.
4.3 Agreement Not to Solicit Company Clients. During the Employee's
employment with the Company and for a period of one (1) year following the
termination of such employment, provided the Company is not in breach or default
hereof, the Employee shall not on the Employee's own behalf or on behalf of
others, either directly or indirectly, contact, solicit, divert, take away or
attempt to contact, solicit, divert, or take away any Company Client. For
purposes of this Agreement, "Company Client" shall mean any person,
corporation, partnership, entity or legal organization to whom the Company sold
its services or products or solicited to sell its products or services during
the twelve (12) months prior to the termination of Employee's employment.
4.4 Agreement Not to Compete. Employee acknowledges that Employee is an
executive or a manager for the Company and as such, has access to information
which represents Trade Secrets and Confidential Information of the Company.
Employee further acknowledges that, should Employee perform work or services for
a Competing Business, as defined below, (in any capacity including, but not
limited to, as an employee, officer, agent, consultant or independent
contractor), Employee necessarily would rely on or inevitably disclose such
Trade
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Secrets and Confidential Information. As a result, Employee agrees that, during
the Employee's employment and for a period of one (1) year following the
termination of such Employment, provided the Company is not in breach or default
hereof, the Employee shall not (except with the prior written consent of the
Company), within the Restricted Territory as defined below, either directly or
indirectly, on Employee's own behalf or in the service or on behalf of others,
as an employee, officer, agent, consultant, or independent contractor, or in
any other capacity which involves duties and responsibilities similar to those
the Employee has undertaken for the Company, engage in any Competing Business.
4.4.1 As used in this Agreement, "Restricted Territory" means
Ontario, Canada, and any state within the United States in which the
company was engaged in business as of Employee's termination date. As used
in this Agreement, "Competing Business" means any business organization
(of whatever form) engaged in any business or enterprise that, in whole or
in part, is the same as, or substantially the same as, the business of
the Company or the Company's research and development efforts.
4.4.2 The covenants set forth in this Agreement shall be considered
and construed as separate and independent covenants. If, at the time of
enforcement of this Section 4, a court shall hold that the duration, scope
or area restrictions stated herein are unreasonable under circumstances
then existing, the parties agree that the maximum duration, scope or area
reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law.
4.5 Materials and Inventions. All work performed, and all materials,
products, deliverables, improvements, discoveries, inventions and other subject
matter conceived, developed or prepared by Employee alone or with others, during
the period of Employee's employment with the Company (collectively the
"Materials"), are the property of the Company and all title and interest therein
shall vest in the Company and all Materials shall be deemed to be works made for
hire and made in the course of Employee's employment with the Company. To the
extent that title to any Materials may not, by operation of law, vest in the
Company or such Materials may not be considered works for hire, Employee hereby
irrevocably assigns all right, title and interest therein to the Company.
Employee agrees to give the Company and any person designated by the Company,
at Company's expense, any assistance required to perfect and enforce the rights
defined in this Section 4.5. If Company is unable for any reason whatsoever to
secure Employee's signature to any lawful and necessary documents required to
apply for or execute any patent, copyright or other applications with respect to
such Materials (including renewals, extensions, or continuations thereof),
Employee hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents, and each of them, as Employee's agents and
attorneys-in-fact to act for and on Employee's behalf and instead of Employee,
to execute and file any such application and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyrights or other
rights thereof with the same legal force and effect as if executed by Employee.
4.5.1 As a matter of record, attached as Exhibit A to this
Agreement is a complete list of all existing Materials relevant to the
subject matter of Employee's
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employment by the Company to which Employee claims ownership as of the
date of this Agreement, that Employee desires to specifically exclude from
this Agreement, and that Employee agrees comprise a complete list of such
Materials. If nothing is listed in this Agreement or Exhibit A, Employee
represents that he or she has no such Materials.
4.5.2 Notwithstanding the foregoing, this Agreement does not
require assignment of any Materials which Employee cannot be obligated to
assign under any applicable law of the state in which Employee is employed
by the Company, including any statutes or regulations set forth or
described in Exhibit B hereto. However, Employee will disclose any
Materials as required by Section 4.5 hereof regardless of whether Employee
believes the Materials to be protected by such statute or regulation in
order to permit the Company to engage in a review process to determine
such issues as may arise. Such disclosure shall be received in confidence
by the Company.
4.6 Obligations to Former Employers. Employee represents that the
execution of this Agreement, Employee's employment with the Company and
Employee's performance of his or her proposed duties to the Company in the
development of its business, will not violate any obligations Employee may have
to any former employer.
4.7 Remedies. The Employee agrees that the covenants contained in Section
4 of this Agreement are of the essence of this Agreement; that each of such
covenants is reasonable and necessary to protect and preserve the interests,
properties and business of the Company; and that irreparable loss and damage
will be suffered by the Company should the Employee breach any of such
covenants. Therefore, the Employee agrees and consents that, in addition to all
the remedies provided at law or in equity, the Company shall be entitled to a
temporary restraining order and temporary and permanent injunctions to prevent a
breach or contemplated breach of any of the covenants. Except as expressly
provided herein, the existence of any claim, demand, action or cause of action
of the Employee against the Company shall not constitute a defense to the
enforcement by the Company of any of the covenants or agreements herein.
Jurisdiction and venue over any action by the Company to obtain a temporary
restraining order or temporary or permanent injunction to prevent or remedy the
breach by Employee of any of the covenants herein shall, be in the United
States District Court for the District of Colorado or in Denver District Court
without regard to conflict of laws.
5. NOTICES.
Any notices, requests, demands and other communications provided for by
this Agreement shall be sufficient if in writing and shall be deemed given when
hand delivered or sent by registered or certified mail to the Employee at the
last address on file with the Company or, in the case of the Company, with its
Legal Department at the Denver, Colorado corporate office.
6. BINDING AGREEMENT.
This Agreement shall be effective as of the date hereof and shall be
binding upon and inure to the benefit of the Employee, Employee's heirs;
personal and legal representatives,
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guardians and permitted assigns. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon any
successor of the Company.
7. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding of the Employee and
the Company with respect to the employment of the Employee and supersedes any
and all prior arrangements, understandings or agreements, whether written or
oral, including Employee's prior Employment Agreement(s), or Confidentiality,
Proprietary Information and Inventions Agreement(s) between the parties or
between Employee and an affiliate, subsidiary, parent or predecessor of the
Company. This Agreement may not be changed, modified or discharged orally, but
only by an instrument in writing signed by the parties.
8. ARBITRATION.
(a) Except for actions brought by the Company pursuant to Subsection 4.7
herein, to the extent permitted by applicable law, any dispute or controversy
arising under or in connection with this Agreement shall be resolved exclusively
by arbitration using one arbitrator in Denver, Colorado, under the auspices of
and in accordance with the Employment Arbitration rules of the American
Arbitration Association then in effect. The agreement set forth herein to
arbitrate shall be specifically enforceable under prevailing arbitration law.
(b) Notice of the demand for arbitration shall be filed in writing with
the other party to this Agreement and with the American Arbitration Association.
The demand for arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen, and in no event shall it
be made after the date when institution of legal or equitable proceedings based
on such claim, dispute or other matter in question would be barred by the
applicable statute of limitations.
(c) The award rendered by the arbitrator shall be final and judgment may
be entered upon it in accordance with applicable law in any court having
jurisdiction thereof. The findings of fact and conclusions of law of the
arbitrator shall be reduced to writing.
9. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado.
10. SEVERABILITY.
The invalidity or unenforceability of any provisions hereof, including the
terms of any of the Exhibits attached hereto, shall in no way affect the
validity or enforceability of any other provision.
11. TAX WITHHOLDING.
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All payments made by the Company to the Employee under this Agreement
shall be subject to applicable federal, state and local tax withholding.
12. STATUS.
BY EMPLOYEE'S SIGNATURE BELOW, EMPLOYEE ACKNOWLEDGES THAT EMPLOYMENT WITH
THE COMPANY IS AT-WILL, MEANING EMPLOYEE OR THE COMPANY MAY TERMINATE THAT
EMPLOYMENT RELATIONSHIP AT ANY TIME WITHOUT NOTICE, CAUSE, OR ANY SPECIFIC
DISCIPLINARY PROCEDURES. NOTHING IN THIS AGREEMENT OR ANY OTHER POLICY,
PRACTICE, PROCEDURE, OR BENEFIT OF THE COMPANY CONSTITUTES AN EXPRESS OR IMPLIED
CONTRACT, GUARANTEE, PROMISE, OR COVENANT OF EMPLOYMENT FOR A SPECIFIED TERM OR
FOR TERMINATION ONLY FOR CAUSE.
IN WITNESS WHEREOF, the parties knowingly and voluntarily have
executed, sealed and delivered this Agreement as of the date first above
written.
COMPANY:
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Chairman & CEO
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WITNESS: EMPLOYEE:
/s/ XXXX XXXXXX XX. /s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
XXXXX EMPLOYMENT AGREEMENT
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EXHIBIT A
The following is a complete list of all existing Inventions or
Improvements pursuant to Section 4 of the Agreement:
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If nothing is listed in this space, I represent I have no Inventions or
Improvements.
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EXHIBIT B
Section 2870 of the California Labor Code
SECTION 2870. APPLICATION OF PROVISION PROVIDING THAT EMPLOYEE
SHALL ASSIGN OR OFFER TO ASSIGN RIGHTS IN INVENTION TO EMPLOYER.
(a) Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(2) Result from any work performed by the employee for his
employer.
(b) To the extent a provision in an employment agreement purports
to require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
