EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter "this Agreement") is made this 6th
day of March, 2000 between Mediware Information Services, Inc., (hereinafter
"the Company") and Xxxxxxx Xxxxxxxxxx (hereinafter "the Executive").
WHEREAS, the Company desires to employ the Executive as its Chief Executive
Officer and President, and the Executive desires to be so employed by the
Company, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements herein set forth, the Company and the Executive hereby
agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to serve as the Chief Executive Officer and President of
the Company. The Executive agrees to perform such services customary- to such
office as shall from time to time be assigned to him by the Chairperson of the
Board of Directors. The Executive further agrees to use his best efforts to
promote the interests of the Company and to devote his full business time and
energies to the business and affairs of the Company.
2. Term of Employment. The employment hereunder shall be for a term of three
years, commencing on the date hereof and ending on the third anniversary of the
date hereof (the "Expiration Date"), unless terminated earlier pursuant to
Paragraph 4 of this Agreement (the "Term of Employment"). This Agreement shall
automatically renew for successive terms of one (1) year (each a "Renewal Term")
commencing on the first day immediately following the Expiration Date, unless
such renewal is objected to by either the Company or the Executive by giving
prior written notice more than ninety (90) days and less than one hundred and
twenty (120) days prior to the scheduled Expiration Date. In the event of such
renewal, the last day of each successive Renewal Term shall be deemed the
Expiration Date.
3. Compensation and Other Related Matters.
(a) Salary. As compensation for services rendered hereunder, the Executive shall
receive an Annual Base Salary of two hundred sixty thousand dollars
($260,000.00), which salary shall be paid in accordance with the Company's then
prevailing payroll practices for its officers and shall be subject to review
annually by the Board of Directors.
(b) Bonus. During the term of this Agreement, and in the Board of Directors'
sole discretion, the Executive shall be eligible to receive an Annual Bonus of
50% of Annual Base Salary for achieving the annual budget plan objectives.
payable at the time of the conclusion of the annual audit. The incentive bonus
may be up to 100% of Annual Base Salary at 125% of annual plan attainment;
conversely, the Annual Bonus may be 25% of Annual Base Salary for achieving 85%
of annual plan budget objectives and 0% for achievement below 85%. The bonus
plan specifics will be established before the end of this fiscal year. Since the
Executive will join the Company with less than four months remaining in its
fiscal year, the Executive's Annual Bonus for fiscal 2000 will be $50,000, paid
shortly after the fiscal year ends.
(c) Stock Options. The Executive shall be granted three hundred and fifty
thousand (350,000) non-qualified options (the "Options") to purchase shares of
the Company's Common Stock, par value $. 10 per share, (the "Stock") under the
Company's Equity Incentive Plan. The Options
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shall be subject to the terms of the Equity Incentive Plan and the Executive's
Non-Qualified Stock Option Agreement (the "Option Agreement"), attached hereto
as Exhibit "A". Subject to the Option Agreement (which shall govern the Options
in the event of any conflict between this Agreement and the Option Agreement),
the Company and the Executive agree as follows:
(i) Vesting. Subject to continued employment of the Executive, the Options shall
vest and become exercisable: one hundred and sixteen thousand, six hundred and
sixty-six (116,666) Options shall become exercisable on the first anniversary of
the commencement of the Term of Employment; one hundred and sixteen thousand and
six hundred and sixty-seven (116,667) Options shall become exercisable on the
second anniversary date of the commencement of the Term of Employment; and one
hundred and sixteen thousand and six hundred sixty-seven (116,667) Options shall
become exercisable on the third anniversary date of the commencement of the Term
of Employment. In addition, upon an acquisition or sale of the Company, as
defined in paragraph 5(g) below, any remaining unexercisable Options shall
become exercisable immediately.
(ii) Exercise. The Options shall be exercisable at a price equal to the fair
market value of the Stock on the day the Term of Employment commences. The fair
market value of the Stock shall equal the average of the high and low market
sale prices on such day as reported by NASDAQ. The Options shall be exercisable
for five years from the commencement of the Term of Employment.
(d) Other Benefits. The fringe benefits, perquisites and other benefits of
employment, including three (3) weeks vacation, to be provided to the Executive
shall be equivalent to such benefits and perquisites as are provided to other
senior executives of the Company as amended from time to time.
(e) Relocation/Temporary Living Allowance: The Executive intends to relocate his
family to Kansas City, Missouri from Little Rock, Arkansas. The Company will
reimburse the Executive for the reasonable cost of relocation, which cost shall
be grossed up to compensate the Executive for any federal, state or local taxes
so incurred by the Executive, including the cost of (i) packing and
transportation of household goods; (ii) two house hunting trips for the
Executive and his spouse; (iii) transaction fees associated with the sale of the
present home and purchase of a new home; (iv) temporary living allowance for a
maximum of six (6) months; and (v) a ten thousand dollar ($ 10,000.00) payment
for incidental expenses.
4. Termination.
(a) Disability . If, as a result of the incapacity of the Executive due to
physical or mental illness, the Executive is unable to perform substantially and
continuously the duties assigned to him hereunder, with or without a reasonable
accommodation, for a period of three (3) consecutive months or for a
non-consecutive period of nine (9) months during the Term of Employment, the
Company may terminate his employment for "Disability" upon thirty (30) days
prior written notice to the Executive.
(b) Death. The Executive's employment shall terminate immediately upon the death
of the Executive.
(c) Cause. The Company shall be entitled to terminate the Executive's employment
for "Cause." Termination by the Company of the employment of the Executive for
"Cause" shall mean termination based upon (i) the willful failure by the
Executive to follow directions communicated to him by the
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Chairman of the Board of 61rectors; (ii) the willful engaging by the Executive
in conduct which is materially injurious to the Company, monetarily or
otherwise; (iii) a conviction of, a plea of nolo contendere, a guilty plea or
confession by the Executive to an act of fraud, misappropriation or embezzlement
or to a felony; (iv) the Executive's habitual drunkenness or use of illegal
substances; (v) a material breach by the Executive of this Agreement; or (vi) an
act of gross neglect or gross misconduct which the Company deems to be good and
sufficient cause.
(d) Termination Without Cause. The Company and the Employee shall each have the
right to terminate the Executive's employment without cause at any time upon
ninety (90) days prior written notice.
(e) Good Reason. The Executive may terminate his employment with the Company for
"Good Reason." Termination by the Executive of his employment for "Good Reason"
shall mean termination based upon (i) a significant diminution in the
Executive's material duties and responsibilities without the Executive's express
written consent; (ii) a significant reduction by the Company in the Executive's
compensation; or (iii) an acquisition or sale of the Company to or by a third
party as defined in Paragraph 5(g).
5 Compensation Upon Termination or During Disability.
(a) Disability . During any period that the Executive fails to perform his
full-time duties with the Company for a three month period as a result of
incapacity due to physical or mental illness (the "Disability Period"), the
Executive shall continue to receive his Annual Base Salary at the rate set forth
in Paragraph 3(a) of this Agreement, less any compensation payable to the
Executive under the applicable disability insurance plan of the Company during
the Disability Period, until this Agreement is terminated pursuant to Paragraph
4(a) hereof. Thereafter, or in the event the Executive's employment shall be
terminated by reason of his death, the Executive's benefits shall be determined
under the Company's insurance and other compensation programs then in effect in
accordance with the terms of such programs and the Company shall have no further
obligation to the Executive under this Agreement.
(b) Death. In the event of the Executive's death, the Executive's beneficiary
shall be entitled to receive the Executive's Annual Base Salary at the rate set
forth in Paragraph 3(a) of this Agreement until the date of his death. The
Company shall also pay the Executive's beneficiaries the reasonable cost of
moving the family household to any location in the continental United States.
Until the earlier of the first anniversary of the termination of employment, or
the commencement of the provision of health benefits to the Executive by a
successor employer, the Executive will continue to receive the same coverage of
health insurance as immediately before the date of the termination, at the
expense of the Company. Thereafter, the Company shall have no further obligation
to the Executive or the Executive's beneficiary under this Agreement.
(c) Cause. If the Executive's employment shall be terminated by the Company for
"Cause" as defined in Paragraph 4(c) of this Agreement, the Company shall
continue to pay the Executive his Annual Base Salary at the rate set forth in
Paragraph 3 )(a) of this Agreement through the date of termination of the
Executive's employment. Thereafter, the Company shall have no further obligation
to the Executive under this Agreement.
(d) Termination Without Cause. If the Company voluntarily terminates the
Executive's employment with the Company pursuant to Paragraph 4(d) of this
Agreement, the Company shall pay the Executive an amount equal to twenty-four
months of the Executive's Annual Salary at the highest rate in effect during the
period of the Executive's employment. The Company shall also pay to the
Executive the reasonable cost of moving his household to any location within the
continental United States. Until the earlier of the first anniversary of the
termination of employment, or the commencement of the provision of health
benefits to the Executive by a successor employer, the Executive will continue
to receive the same coverage of health insurance as immediately before the date
of the termination, at the expense of
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the Company. Thereafter, the Executive acknowledges that the Company shall have
no further obligation to the Executive under this Agreement.
(e) Termination for Good Reason. If the Executive terminates his employment for
Good Reason with the Company pursuant to Paragraph 4(e) of this Agreement, the
Company shall pay the Executive an amount equal to twenty-four months of the
Executive's Annual Base Salary at the highest rate in effect during the period
of the Executive's employment. The Company shall also pay to the Executive the
reasonable cost of moving his household to any location in the continental
United States. Until the earlier of the first anniversary of the termination of
employment, or the commencement of the provision of health benefits to the
Executive by a successor employer, the Executive will continue to receive the
same coverage of health insurance as immediately before the date of the
termination, at the expense of the Company. Thereafter, the Executive
acknowledges that the Company shall have no further obligation to the Executive
under this Agreement.
(f) Acquisition or Sale of Company . If a third party described in Paragraph
5(g) of this Agreement terminates the Executive due to "an acquisition or sale
of the Company", as described in Paragraph 5(g) below, the Company shall pay the
Executive an amount equal to twenty-four months of Executive's Annual Base
Salary at the rate in effect at the date of termination of the Executive's
employment during the period of the Executive's employment, payable in
twenty-four equal monthly installments. The Company shall also pay the Executive
the reasonable cost of moving his household to any location in the continental
United States. Until the earlier of the first anniversary of the termination of
employment, or the commencement of the provision of health benefits to the
Executive by a successor employer, the Executive will continue to receive the
same coverage of health insurance as immediately before the date of the
termination, at the expense of the Company. Thereafter, the Executive
acknowledges that the Company shall have no further obligation to the Executive
under this Agreement.
(g) Definition. For purposes hereof, "an acquisition or sale of the Company" to
or by "a third party" shall mean the occurrence of any transaction or series of
transactions which within a six (6) month period result in (1) at least
seventy-five percent (75%) of the then outstanding shares of Common Stock of the
Company (for cash, property including, without limitation, stock in any
corporation or other third party legal entity, indebtedness or any combination
thereof) have been redeemed by the Company or purchased by a previously
unaffiliated third party, or exchanged for shares in any other corporation or
other third party legal entity not previously affiliated with the Company, or
any combination of such redemption, purchase or exchange, (11) at least
seventy-five percent (75%) in book value of the Company's gross assets are
acquired by a third party not previously affiliated with the Company (for cash,
property including, without limitation, stock in any corporation whether or not
unaffiliated with the Company, indebtedness of any person or any combination
thereof), or (111) the Company is merged or consolidated with another private or
public corporation or other third party legal entity and the former holders of
shares of Common Stock of the Company own less than 25% of the voting power of
the acquiring, resulting or surviving corporation or other third party legal
entity.
(h) Termination Without Cause. If the Employee voluntarily resigns his
employment with the Company pursuant to Paragraph 4(d) of this Agreement, the
Company shall pay the Executive an amount equal to three (3) months of the
Executive's Annual Base Salary at highest rate in effect during the period of
the Executive's employment, in three (3) equal monthly installments, and shall
provide health insurance for such three month period. After the last of such
payments, the Executive acknowledges that the Company shall have no further
obligation to the Executive under this Agreement. The Company shall also pay to
the Executive the reasonable cost of moving his household to any location in the
continental United States.
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(i) Pro-Rated Bonus. If the Executive's employment terminates pursuant to
Paragraphs 4(a), (b), (d), or (e) or as described in Paragraph 5(f), and (i)
such termination occurs during the last six months of the Company's fiscal year,
(ii) the Company has, as of the first day of the month in which termination
occurs, achieved or exceeded the annual budget plan objectives for the fiscal
year - on a pro rata basis - (with both the Company's achievement and the annual
budget plan objectives being multiplied by a fraction equal to the number of
full months of employment since the beginning of the fiscal year divided by 12
(the "Fraction "A and (iii) the Company achieves or exceeds the annual budget
plan for the full fiscal year in which such termination of employment occurs,
the Company will pay the Executive a bonus equal to the highest Annual Base
Salary in effect during the period of the Executive's employment multiplied by
fifty (50%) percent of the Fraction, payable upon completion of the audit for
such fiscal year.
6. Confidentiality and Restrictive Covenants.
(a) The Executive acknowledges that:
(i) the business in which the Company is engaged is intensely competitive and
his employment by the Company will require that he have continual access to and
knowledge of confidential information of the Company, including, but not limited
to, the nature and scope of its products, the object and source code offered..
marketed or under development by the Company or under consideration by the
Company for development, acquisition, or marketing by the Company and the
documentation prepared or to be prepared for use by the Company (and the phrase
"by the Company" shall include other vendors, licensees or and resellers and
value-added resellers of the Company's products or proposed product) and the
Company's plans for creation, acquisition, improvement or disposition of
products or software, expansion plans, financial status and plans, products,
improvements, formulas, designs or styles, method of distribution, lists of
remarketing and value-added and other resellers customer lists and contact
lists, product development plans, rules and regulations. personnel information
and trade secrets of the Company, all of which are of vital importance to the
success of the Company's business, provided that Confidential Information will
not include information which has become publicly known otherwise than through a
breach by Executive of the provisions of this Agreement (collectively,
"Confidential Information");
(ii) the direct or indirect disclosure of any Confidential Information would
place the Company at a serious competitive disadvantage and would do serious
damage, financial and otherwise, to the Company's business;
(iii) by his training, experience and expertise, the Executive's services to the
Company will be special and unique; and
(iv) if the Executive leaves the Company's employ to work for a competitive
business, in any capacity, it would cause the Company irreparable harm.
(b) Covenant Against Disclosure. The Executive therefore covenants and agrees
that all Confidential Information relating to the business products and services
of the Company, any subsidiary, affiliate, seller or reseller, value-added
vendor or customer shall be and remain the sole property and confidential
business information of the Company, free of any rights of the
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Executive. The Executive further agrees not to make an), use of the confidential
information except in the performance of his duties hereunder and not to
disclose the information to third parties, without the prior written consent of
the Company. The obligations of the Executive under this Paragraph 6 shall
survive any termination of this Agreement. The Executive agrees that, upon any
termination of his employment with the Company, all Confidential Information in
his possession, directly or indirectly, that is in written or other tanoible or
readable form (together with all duplicates thereof) will forthwith be returned
to the Company and will not be retained by the Executive or furnished to any
third party, either by sample, facsimile, film, audio or video cassette,
electronic data, verbal communication or any other means of communication.
(c) Non-competition. The Executive agrees that, during the Term of Employment
and for a period of one (1) year following the date of termination of the
Executive's employment with the Company, the Executive will not, directly or
indirectly, own, manage, operate, control or participate in the ownership,
management or control of, or be connected as an officer, employee, partner,
director, or otherwise with, or have any financial interest in, or aid or assist
anyone else in the conduct of, any entity or business which competes with any
business conducted by the Company or any of its subsidiaries or affiliates, in
the United States, Canada and the UK and any other area where such business is
being conducted on the date the Executive's employment is terminated hereunder.
Notwithstanding the foregoing the Executive's ownership of securities of a
public company engaged in competition with the Company not in excess of five
(5%) percent of any class of such securities shall not be considered a breach of
the covenants set forth in this Paragraph 6.
(d) Further Covenant. Until the date which is one (1) year after the date of the
termination of the Executive's employment hereunder for any reason, the
Executive will not, directly or indirectly, take any of the following actions,
and, to the extent the Executive owns, manages, operates, controls, is employed
by or participates in the ownership, management, operation or control of, or is
connected in any manner with, any business of the type and character engaged in
and competitive with that conducted by the Company or any of its subsidiaries or
affiliates during the period of the Executive's employment, the Executive will
use his best efforts to ensure that such business does not take any of the
following actions:
(i) persuade or attempt to persuade any customer of the Company or any seller,
reseller or value-added vendor of the Company or of its products to cease doing
business with the Company or any of its subsidiaries or affiliates, or to reduce
the amount of business it does with the Company or any of its subsidiaries or
affiliates;
(ii) solicit for himself or any entity the business of (A) any customer of the
Company or any of its subsidiaries or affiliates, or (B) any seller, reseller or
value-added vendor of the Company, or of its products, or (C) solicit any
business from a customer which was a customer of the Company or any of its
subsidiaries or affiliates within six months prior to the termination of the
Executive's employment; and
(iii) persuade or attempt to persuade any employee of the Company or any of its
subsidiaries or affiliates or any individual who was an employee of the Company
or any of its subsidiaries or affiliates, at any time during the six-month
period prior to the Executive's termination of employment, to leave the employ
of the Company or any of its subsidiaries or affiliates.
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7. Intellectual Property. The Executive hereby agrees that any and all (i)
software, object code, source code, and documentation, (ii) any improvements,
inventions,. discoveries, formulae, processes, methods, know-how, confidential
data, patents, trade secrets, (iii) Food and Drug Administrative ("FDA")
applications seeking approval by the FDA, information contained in the Forms 5 1
O-k of the FDA and approvals from FDA, and (iv) other proprietary information
made, developed or created by the Executive (whether at the request or
suggestion of the Company or otherwise, whether alone or in conjunction with
others, and whether during regular working hours of work or otherwise) during
the period of his employment with the Company, which may be directly or
indirectly useful in, or relate to, the business being carried out by the
Company or any of its subsidiaries or affiliates, shall be promptly and fully
disclosed by the Executive to the Board of Directors and shall be the Company's
exclusive property as against the Executive, and the Executive shall promptly
deliver to the Board of Directors of the Company all papers, drawings, models,
data and other material relating to any invention made, developed or created by
him as aforesaid.
The Executive shall, upon the Company's request and without any payment
therefor, execute any documents necessary or advisable in the opinion of the
Company's counsel to direct issuance of patents, copyrights and FDA applications
or approvals of the Company with respect to such inventions or work product or
improvements or enhancements as are to be the Company's exclusive property as
against the Executive under this Paragraph 7 or to vest in the Company title to
such inventions as against the Executive, the expense of securing any such
patent or copyright, to be borne by the Company.
8. Breach by Employee. Both parties recognize that the services to be rendered
under this Agreement by the Executive are special, unique and extraordinary in
character, and that in the event of a breach by Employee of the terms and
conditions of the Agreement to be performed by him, then the Company shall be
entitled, if it so elects.. to institute and prosecute proceedings in any court
of competent jurisdiction, either in law or in equity, to obtain damages for any
breach of this Agreement, or to enforce the specific performance thereof by the
Executive. Without limiting the generality of the foregoing, the parties
acknowledge that a breach by the Executive of his obligations under Paragraph 6
or 7 would cause the Company irreparable harm, that no adequate remedy at law
would be available in respect thereof and that therefore the Company would be
entitled to injunctive relief with respect thereto.
9. Arbitration. In the event of any dispute between the parties hereto arising
out of or relating to this Agreement or the employment relationship, including,
without limitation, any statutory claims of discrimination, between the Company
and the Executive (except any dispute with respect to Paragraphs 6 and 7
hereof), such dispute shall be settled by arbitration in Nassau County or New
York County, State of New York-, or in Wyandotte County or the City of Kansas
City, State of Kansas, in accordance with the National Rules for the Resolution
of Employment Disputes then in effect of the American Arbitration Association.
The parties hereto agree that the arbitral panel shall also be empowered to
grant injunctive relief to a party, which may be included in any award. Judgment
upon the award rendered, including injunctive relief, may be entered in any
court having jurisdiction thereof. Notwithstanding anything herein to the
contrary, if any dispute arises between the parties under Paragraphs 6 or 7,
neither the Executive nor the Company shall be required to arbitrate such
dispute or claim, but each party shall have the right to institute judicial
proceedings in any court of competent jurisdiction with respect to such dispute
or claim. If such judicial proceedings are instituted, the parties agree that
such
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proceedings shall not be stayed or delayed pending the outcome of any
arbitration proceeding hereunder.
10. Miscellaneous.
(a) Successors; Binding Agreement. This Agreement and the obligations of the
Company hereunder and all rights of the Executive hereunder shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, provided, however, that the duties of
the Executive hereunder are personal to the Executive and may not be delegated
or assigned by him.
(b) Notice. All notices of termination and other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand, delivered by an express delivery (one day service),
delivered by telefax and confirmed by express mail or one day express delivery
service, or mailed by United States registered mail, return receipt requested,
addressed as follows:
If to the Company:
Mediware Information Systems, Inc.
0000 Xxx Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
If to the Executive.
Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
or to such other address as either party may designate by notice to the other,
which notice shall be deemed to have been given upon receipt.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict
of law rules thereof
(d) Waivers. The waiver of either party hereto of any right hereunder or of any
failure to perform or breach by the other party hereto shall not be deemed a
waiver of any other right hereunder or of any other failure or breach by the
other party hereto, whether of the same or a similar nature or otherwise. No
waiver shall be deemed to have occurred unless set forth in writing executed by
or on behalf of the waiving party. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically ,waived.
(e) Validity. The invalidity or enforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall otherwise remain in full force and effect.
Moreover, if any one or more of the provisions contained in this Agreement is
held to be excessively broad as to duration, scope or activity, such
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provisions shall be construed by limiting and reducing them so as to be
enforceable to the maximum extent compatible with applicable law.
(f) Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
(g) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties in respect of the subject matter contained herein,
and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of either party in respect of said subject
matter.
(h) Headings Descriptive . The headings of the several paragraphs of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any of this Agreement.
(i) Capacity. The Executive represents and warrants that he is not a party to
any agreement that would prohibit him from entering into this Agreement or
performing fully his obligations hereunder.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first written above.
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxxxx
MEDIWARE INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxx
----------------------------
Title: Chairman of the Board
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