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Exhibit 10.1
EMPLOYMENT AGREEMENT
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I, Xxxxx Xxxxxxxxxxx, for and in consideration of my employment by New
Horizons (as hereinafter defined), my position of responsibility and trust, the
special knowledge I will gain, the wages and benefits to be paid or provided to
me, and being given access to Confidential Information (as hereinafter defined),
hereby make the following promises and agreements.
1. EMPLOYMENT.
Subject to early termination as provided in Section 8 of this
Agreement, for a period of two (2) years commencing on the date hereof (the
"Employment Period"), New Horizons hereby employs me in the position identified
on SCHEDULE 1 hereto, and I hereby accept such employment. As such, I will
perform such reasonable and appropriate duties for New Horizons as may be
assigned to me by the Board of Directors or by any executive officer of New
Horizons or any designee thereof to whom I report, provided such duties are
consistent in scope with those duties which I performed prior to the
consummation of the transactions described in the Asset Purchase Agreement of
even date herewith ("Purchase Agreement") entered into, INTER ALIA, by and among
New Horizons and Computer Learning Centers of New Mexico, Ltd. Co. ("Seller').
In addition, it is understood that I shall only be required to perform services
for New Horizons within the geographic areas covered by the Albuquerque
Franchise Agreement and Santa Fe Franchise Agreement (as defined in the Purchase
Agreement). While employed by New Horizons, I shall devote my best efforts to
the business and welfare of New Horizons in accordance with and in furtherance
of the policies and directives of New Horizons in effect from time to time as
follows: (a) for the twelve (12) month period commencing on the date of this
Agreement, I will devote my entire business time, attention, skill, and energy
to performing my services for New Horizons, and (b) for the twelve (12) month
period commencing on the first anniversary of the date of this Agreement, I will
devote such time as is requested by New Horizons.
2. COMPENSATION AND BENEFITS.
2.1 SALARY AND BONUS. New Horizons shall pay me a base salary during
the Employment Period at the rate of per year shown on SCHEDULE 2.1 hereto, less
such deductions and withholdings as are required by law. Such salary shall be
payable in accordance with New Horizons' standard payroll practices.
2.2 BENEFITS. While employed New Horizons shall provide me with
substantially the same benefits as are generally provided other similar
employees of New Horizons, which benefits are described on SCHEDULE 2.2 hereto.
2.3 EXPENSES. While employed New Horizons shall reimburse me for
reasonable expenses I incur in the performance of services on behalf of New
Horizons. I shall furnish New Horizons with the documentation in connection with
such expenses required by the Internal Revenue Code and the regulations
promulgated thereunder.
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3. DEFINITIONS.
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3.1 "Affiliate" means a Person that directly or indirectly, through
one or more intermediaries, controls or is controlled by or is under common
control with New Horizons.
3.2 "Cause" means (i) a material breach of my obligations under this
Agreement or my fiduciary obligations to New Horizons, (ii) my commission of a
felony or any offense involving misappropriation of money or property, or (iii)
my failure, after notice and a reasonable chance to cure, to observe the
reasonable and lawful directives of the Board of Directors of New Horizons or of
any executive officer of Company or any designee thereof to whom I report
related to performance of my duties for Company
3.3 "Company" means New Horizons and any Affiliate of New Horizons. A
chart reflecting the Affiliates of New Horizons as of the Closing (as defined in
the Purchase Agreement) is attached hereto as EXHIBIT A.
3.4 "Confidential Information" means information of any type, not
generally known, about the business, processes, services, products, suppliers,
customers, decisions, or plans of Company or of any customer of Company
(regardless of whether Company has executed a confidentiality agreement with
such customer), which is used or useful in the conduct of Company's business, or
which confers or tends to confer a competitive advantage over one who does not
possess such information. Such information includes, but is not limited to:
designs, processes, procedures, formulae and improvements, information relating
to trade secrets, know-how, research, development, design, engineering, quality
control or service techniques, information about existing, new or envisioned
Company products, processes or services, their development or performance,
information relating to quotations, purchasing, accounting, sales, marketing, or
pricing, including financial or business planning information, financial
statements and forecasts, business plans, product pricing information and
customer and supplier lists, and marketing programs and methods.
3.5 "Conflicts of Interest" means any activity which creates a
conflict between Company and my personal interests, including, but not limited
to: (i) owning a financial interest in any Person which does business with
Company (except where such interest consists of ownership of securities in a
publicly owned corporation); (ii) rendering services to any Person which does
business with Company; (iii) accepting gifts (or more than token value), loans
(other than from established financial institutions), excessive entertainment,
or other substantial favors from any Person which does business or is seeking to
do business with Company; (iv) representing the Company in any transaction in
which I have a substantial interest; (v) using Confidential Information for
personal gain; (vi) competing with Company, directly or indirectly, in the
purchase or sale of property, products, or services; (vii) transacting personal
business with any Person so as to cause such Person to believe he is dealing
with Company rather than me as an individual; and (viii) rendering employment
services to Company that may violate a prior contract between me and another
Person or improperly using or disclosing trade secrets of another Person.
3.6 "I, me, my or other personal pronoun" means the individual
executing this agreement and, as applicable, his personal representatives, heirs
and assigns.
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3.7 "New Horizons" means New Horizons Computer Learning Center of New
Mexico, Inc., a Delaware corporation.
3.8 "Person" means any natural person, corporation, partnership,
limited liability corporation, joint venture, unincorporated association, sole
proprietorship, or other entity utilized for conducting business.
4. CONFIDENTIAL INFORMATION.
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4.1 I shall not, directly or indirectly, use or disclose, or take or remove
from the possession of Company any Confidential Information except in connection
with the performance of my authorized duties as an employee of Company.
4.2 I shall not, upon the termination of my employment for any reason or
purpose, without the express written consent of Company, directly or indirectly,
use or disclose, or take or remove from the possession of Company, any
Confidential Information used by me or anyone else in the employment of Company.
4.3 Upon the termination of my employment with Company I shall deliver to
Company all documents in my possession which contain any Confidential
Information, including all copies thereof, regardless of whether such documents
were prepared by me or by others.
5. NON-COMPETITION.
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I acknowledge and agree that while employed by Company and for a three
(3) year period following termination of my employment with Company for any
reason, and in no event prior to the fifth anniversary date of the Purchase
Agreement, I shall not, directly or indirectly, accept employment with or render
services to any Person, including any customer of Company which is engaged in
the Business of Company, or any franchisee of Company (except for the Salt Lake
City franchise if I own an interest therein), or otherwise participate in any
business whether as a shareholder, partner, joint venturer, sole proprietor,
director, trustee, officer, employee, agent, consultant, independent contractor,
or otherwise which is engaged in the Business of Company within a fifty (50)
mile radius of any office of Company or any of its franchisees then in
operation. I further agree that the Business of Company is the training of
individuals in the use of computers and computer software, whether directly
through the actual offering and conducting of such training or indirectly
through the franchising and training of other Persons which offer or conduct
such training, together with any method, training aids, computer software, or
other technology relating to such training now or hereafter utilized or
developed.
6. NON-SOLICITATION; NON-INTERFERENCE.
6.1 While employed by Company and for a three (3) year period thereafter,
and in no event prior to the fifth anniversary of the Purchase Agreement, I
shall not, directly or indirectly, individually or on behalf of any Person,
solicit or induce or assist in any manner in the solicitation or inducement of
any then employee of Company or any franchisee to render services to or for my
benefit or that of another Person.
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6.2 While employed by Company and thereafter, I shall not, directly or
indirectly, individually or on behalf of any Person, solicit or induce any
customer, franchisee, supplier, or other Person having a contractual or business
relationship with Company to terminate or otherwise alter such relationship, or
in any other manner interfere with such relationship, or interfere with any
prospective business relationship or advantage which Company has with any
Person.
7. CONFLICTS OF INTEREST.
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While employed by Company, I will promptly and fully disclose, and unless
the Board of Directors of Company consents, refrain from engaging in, any
Conflict of Interest.
8. TERMINATION.
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8.1 This Agreement may be terminated prior to the expiration of the
Employment Period, as follows:
(a) At the option of and by written notice from New Horizons if I shall
become disabled, which, for purposes of this Agreement, shall be deemed to have
occurred if I suffer from any disability or impairment of health that continues
for at least 120 days and which in the reasonable opinion of New Horizons
renders me unable to perform my duties consistent with past practice;
(b) By New Horizons, if it finds "Cause" for termination; or
(c) Upon my death.
8.2 The provisions of Sections 4, 5 and 6 will survive expiration or
earlier termination of this Agreement for any reason, except that Section 5
hereof shall not be applicable in the event my employment is terminated after
the second anniversary hereof without Cause. Notwithstanding anything to the
contrary in this Agreement, all rights of the parties to seek damages and other
relief for breaches of this Agreement occurring prior to or on account of the
termination hereof by the other of this Agreement will survive termination.
Except as set forth in this Section 8.2, all rights and obligations of the
parties hereunder will expire upon expiration or earlier termination of this
Agreement.
9. GENERAL PROVISIONS.
9.1 The agreements which I have made herein, shall be binding upon my heirs
and legal representatives and shall inure to the benefit of Company, its
Affiliates and their successors and assigns.
9.2 In the event of the unenforceability or invalidity of any section or
provision of this Agreement, such section or provision shall be enforceable in
part to the fullest extent permitted by law, such invalidity or unenforceability
shall not otherwise affect any other section or provision of this Agreement, and
this Agreement shall otherwise remain in full force and effect.
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9.3 This Agreement and the Purchase Agreement constitute the entire
agreement with respect to the subject matter hereof and supersedes all prior
negotiations, understandings, and agreements with respect thereto.
9.4 This Agreement may be amended only by an agreement in writing between
the parties.
9.5 This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of the state
where I am a bona fide resident at the time of enforcement of any provision
herein without regard to the conflicts of laws provisions of any state. The
courts of the same where I am or was last employed by Company shall have
jurisdiction over disputes arising from this agreement and I hereby waive all
objections to such jurisdiction.
9.6 I agree that money damages alone will not be a sufficient remedy for
any breach of the provisions of this Agreement by me, and that in addition to
all other remedies Company may have, Company shall be entitled to specific
performance, injunctive or such other equitable relief determined appropriate by
a court of competent jurisdiction and I waive the securing or posting of any
bond in connection with such remedy.
[Signature page follows]
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THE UNDERSIGNED HAS READ THIS AGREEMENT IN ITS ENTIRETY AND UNDERSTANDS IT. I
FURTHER ACKNOWLEDGE THAT I HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL OF
MY CHOICE WITH REGARD TO THE TERMS OF THIS AGREEMENT. FINALLY, I ACKNOWLEDGE
THAT EXECUTION OF THIS AGREEMENT IS MY FREE ACT AND DEED AND THAT I HAVE BEEN
FURNISHED WITH A COPY THEREOF.
Signed at Albuquerque , this 2/26 day of 1999.
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/S/Xxxx Xxxxxx /S/Xxxxx Xxxxxxxxxxx
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Witness Signature Employee
Xxxx Xxxxxx
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Witness Printed Name
ACCEPTED AND AGREED to by Company, this 1st day of March, 1999.
By: /S/Xxxxxx X. Xxxxxxx
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Company Officer
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