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EXHIBIT 10.14
AMERICAN MEDCARE CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the
_____ day of November ____, 1996, between AMERICAN MEDCARE CORPORATION, a
Delaware corporation ("AMC") and R. XXXXXX XXXXXXXX ("Executive").
WHEREAS, AMC has developed and is marketing computer software programs
and related services in the health care industry and continues to develop and
market such software programs and related services;
WHEREAS, AMC agrees to employ Executive as an executive to provide the
services set forth herein; and;
WHEREAS, Executive agrees to provide such services in accordance with
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein made
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT/DUTIES. (a) AMC shall employ Executive as an executive
for Sales and Marketing during the term of his employment as set forth in this
Agreement and Executive hereby accepts such employment. Executive's initial
position shall be Vice President - Sales and Marketing.
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(b) Executive shall have such powers and duties as assigned to him by
the President of AMC from time to time.
(c) Executive shall report to the President of AMC. Executive shall
keep the President timely advised of all significant developments and
opportunities and shall timely consult with the President on all significant
policies and contracts. Executive's powers and duties are subject to the
supervision and instructions of the Board of Directors, Chairman and President.
(d) Executive agrees that he will at all times faithfully and to the
best of his ability and experience faithfully perform all of the duties that
may be required of him pursuant to the terms of this Agreement. Executive shall
devote his full business time to the performance of his obligations hereunder.
2. COMPENSATION.
(a) BASE SALARY. During the term of his employment, including any
extension thereof, AMC will pay to Executive a base salary ("Base Salary") of
$125,000 per year and a $25,000 annual draw against the incentive compensation
plan described in Section 2(a), payable in arrears and in equal semi-monthly
payments. The base salary shall be subject to annual review by the Board of
Directors of AMC who shall consider annually an increase in the base salary.
Any increase in the base salary shall be at the sole discretion of the Board of
Directors. In the event of a disability, to the extent payments are received
under an employer-sponsored disability program, the payments hereunder are to
be reduced by the amount equal to such disability payments.
(b) INCENTIVE COMPENSATION. During the term of Executive's employment,
including any extension thereof, in addition to the Base Salary as provided in
paragraph 2(a), AMC will pay Executive annual incentive compensation provided
that the objectives of the
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program are met. The incentive compensation shall be pursuant to a program
based upon the achieving certain revenue and/or profit goals of AMC and/or of
the department in which Executive has responsibilities. Upon agreement as to
the program, it shall be signed by the parties hereto and attached hereto as
Exhibit A and shall constitute a part of this Agreement.
(c) STOCK OPTIONS. American Medcare Corporation ("AMC") shall grant to
Executive on the first (1st) day hereafter on which the Board of Directors of
AMC meets the following stock options:
A stock option to purchase an aggregate of 1,350,000 shares of Common
Stock of AMC ("Common Stock"), at $0.01 par value at $.25 per share which shall
vest (first be exercisable) and expire as follows:
Number of Shares Vest Expires
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337,500 November 15, 1997 November 15, 2004
337,500 November 15, 1998 November 15, 2004
337,500 November 15, 1999 November 15, 2004
337,500 November 15, 2000 November 15, 2004
Such stock options shall be subject to earlier termination upon termination of
employment for any reason and to the other terms and conditions as provided in
Exhibit B attached hereto and incorporated herein. Such stock options shall be
non-qualified stock options.
(d) EMPLOYEE BENEFIT PROGRAM. Executive shall be eligible to
participate in all employee benefit programs, including medical hospitalization
programs, now or hereafter made available by AMC to its employees or Executive
employees, subject to terms and conditions of such programs, including
eligibility. It is understood that AMC reserves the right to modify and
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rescind any program or adopt new programs in its sole discretion. AMC may, in
its sole discretion, maintain key man life insurance on the life of Executive
and designate AMC as the beneficiary. Executive agrees to execute any documents
necessary to effect such policy.
(e) EXPENSES. Executive shall be reimbursed for expenses reasonably
incurred in the performance of his duties hereunder in accordance with the
policies of AMC then in effect.
(f) VACATION. Executive shall be entitled to two (2) weeks of vacation
for each full year of service. Vacation shall be taken at such times as not to
materially interfere with the business of AMC. The vacation time must be taken
within the time program or as otherwise mutually agreed in writing; otherwise
it expires to the extent not used.
3. TERM.
The term of the employment of Executive under this Agreement shall be
for a period of two (2) years ("Initial Term") commencing on the date hereof
and ending on the second (2nd ) anniversary thereof, subject to earlier
termination as provided in paragraph 4. The term of employment shall continue
after the Initial Term under this Agreement, subject to earlier termination as
provided in paragraph 4, for additional one-year terms until the second
anniversary of the last day of the Initial Term unless it is terminated at the
end of the Initial Term or as of the first (1st) anniversary of the Initial
Term, as the case may be, by either party upon sixty (60) days prior written
notice. If the employment of Executive continues thereafter, absent a written
agreement, the employment shall be at will and the provisions of this Agreement
shall be of no force and effect with respect to such subsequent period, except
for the provisions of paragraphs 5, 6 and 7. If the term of employment
hereunder is intended to be extended beyond the Initial Term, within ninety
(90) days prior to the extension, the parties hereto shall negotiate in good
faith any
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modification to the provisions of subparagraphs (a), (b) and/or (c) of
paragraph 2. If no agreement is reached, this Agreement will terminate on the
last day of the Initial Term or on the first (lst) anniversary of the last day
of the Initial Term, as the case may be.
4. EARLY TERMINATION.
(a) FOR CAUSE.
(1) Notwithstanding the foregoing AMC may terminate the employment
of Executive "for cause" (as hereinafter defined) at any time upon the ten (10)
business days prior written notice. The term "for cause" shall mean (i) the
continued failure by Executive substantially to perform his duties with AMC in
a reasonably professional manner other than due to total disability or death
for a period of thirty (30) days after a written demand for substantial
performance is delivered to Executive by the Board of Directors or Chairman or
President of AMC, which demand identifies the manner in which the Board or
Chairman or President believes Executive has not substantially performed his
duties, (ii) the unauthorized dissemination of material trade secrets or other
material proprietary property of AMC or its parent or subsidiaries of its
parent, (iii) the commission of a felony or any other crime involving moral
turpitude or the pleading of nolo contendere to any such act, (iv) the
commission of any act or acts of dishonesty when such acts are intended to
result or result, directly or indirectly, in gain or personal enrichment of
Executive or any related person or affiliated company or are intended to cause
harm or damage to AMC or its parents or subsidiaries of its parent, (v) the
illegal use of controlled substances, (vi) the use of alcohol so as to have a
material adverse effect on the performance of his duties, (viii) the making of
disparaging remarks regarding AMC or its parents or subsidiaries of its parent
or the products or services of any such person to suppliers and/or
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customers of AMC, its parent or subsidiaries of its parent, or (ix) the breach
of any other material term of provision of this Agreement to be performed by
Executive which have not been cured within thirty (30) days of receipt of
written notice of such breach.
(2) Upon termination for cause AMC shall have no further
obligation to pay any compensation to Executive for periods after the effective
date of the termination for cause, except for base salary which accrued as of
the termination date. In addition, the right to exercise any vested stock
option shall terminate on the effect date of the termination of employment for
cause pursuant to subparagraphs (a)(ii) through (viii).
(b) TERMINATION BY EXECUTIVE. Executive may terminate his employment
at any time upon at last ten (10) business days prior written notice to AMC.
Upon such termination of employment Executive's right to compensation after the
effective date of termination shall cease except for base salary which accrued
as of the termination date. In addition, the right to exercise any vested stock
option shall terminate on the effective date of termination of employment.
(c) TERMINATION UPON DEATH OR DISABILITY.
(1) The employment of Executive shall terminate upon his death, or
ten (10) business days after written notice by AMC of termination, upon or
during the continuance of the total disability (as hereinafter defined) of
Executive.
(2) Upon termination, upon death or during total disability, AMC
shall have no further obligation to pay any compensation for periods after the
effective date of such termination, except for base salary and incentive
compensation which accrued as of the termination date. To the extent stock
options have vested as of such termination date, they shall
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continue to be exercisable for a period of six (6) months thereafter as set
forth in the stock option agreements not to exceed the stated expiration date
of the stock option.
(3) The term "total disability" means the inability of Executive
to substantially perform his duties hereunder for a continuous period of thirty
(30) days unless extended in writing by AMC. Total disability of Executive
shall be deemed to commence upon the expiration of such continuous thirty (30)
day period. In the event of any dispute as to the "total disability" of the
Executive, the matter shall be resolved by the decision of a single physician,
serving as an arbitrator, mutually selected or appointed in accordance with the
rules of the American Arbitration Association, Atlanta, Georgia. The decision
of the arbitrator shall be binding on all parties hereto. Executive agrees to
submit medical records requested and to submit such examination and testing
requested by such physician.
(d) TERMINATION BY AMC WITHOUT CAUSE.
(1) AMC may terminate this Agreement without cause upon thirty
(30) days prior written notice to Executive.
(2) If the employment of Executive is terminated by AMC under this
subparagraph (d) prior to the expiration of the first six (6) months of his
employment, AMC shall pay Executive the amounts accrued to the date of
termination, plus an amount equal to the product of three (3) times the monthly
minimum compensation of Executive. In addition, the right to exercise any
vested stock option shall terminate on the effective date of termination of
employment, subject to the conditions outlined in Exhibit B.
(3) If the employment of Executive is terminated by AMC under this
subparagraph (d) on or after the expiration of the first six (6) months of his
employment, AMC
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shall pay Executive the amounts accrued to the date of termination, plus an
amount equal to the product of four (4) times the monthly minimum compensation
of the Executive. In addition, the right to exercise any vested stock option
shall terminate on the effective date of termination of employment.
5. COVENANT NOT TO COMPETE.
(a) Executive agrees that for the period commencing on the
date hereof and ending one (1) year after the expiration of the term of his
employment under this Agreement (and if employment is continued thereafter "at
will," then after termination of his employment with AMC or parent or
subsidiaries of its parent for any reason), Executive will not, alone or with
others, directly or indirectly, own, manage, operate, join, control,
participate in the ownership of, management, operation, or control of, be
employed by, consult with, advise or be connected in any other manner with any
business which develops, distributes or markets software programs, and/or
services which compete with the software programs and services of the kind
currently marketed by AMC for use in the United States ("Territory") other than
with AMC and its parent and subsidiaries of its parent. This covenant not to
compte shall not prohibit (i) ownership by Executive of not more than one
percent (1%) of the equity securities of companies listed on any United States
stock exchanges or traded over the counter or (ii) engagements which do not
involve, directly or indirectly, the development, distribution or marketing of
competitive products or services by entities engaged in such competitive
businesses.
(b) Each city and county of each state and each state in the
Territory and each month of time covered by this covenant not to compete shall
be deemed a servable unit and should any court determine that the inclusion of
all states, cities and counties or months would
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render any such undertaking unreasonable or enforceable for any reason, those
units which are necessary in the judgment of the court to be deleted AMC order
to render such an undertaking, but such undertaking shall remain in full force
and effect as to every other unit of territory and time.
6. DISCOVERIES, PATENTS, INVENTIONS AND COPYRIGHTS. Executive
shall execute simultaneously with the execution of this Agreement the standard
employee agreement of AMC regarding discoveries, patents, inventions and
copyrights, a copy of which is attached hereto as Exhibit D.
7. SPECIFIC PERFORMANCE. Because of his knowledge and experience,
Executive agrees that AMC shall be entitled to specific performance or an
injunction or other similar relief in addition to all other rights and remedies
it might have for any violation of the undertakings set forth in paragraphs 5
and 6 of this Agreement.
8. NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given upon receipt when delivered by hand or by express
mail, overnight courier or other similar method or by facsimile transmission
(provided a copy is also sent by registered or certified mail), or five (5)
days after deposit of this notice in the U.S. mail, if mailed by certified or
registered mail, with postage prepaid addressed to the respective party as set
forth below, which address may be changed by written notice to the other party:
(a) If to AMC:
American Medcare Corporation
0000 Xxxxxxxx-Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: President
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(b) If to Executive:
R. Xxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
9. BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon and enforceable by Executive and his estate, personal
representatives and heirs, and by AMC and its successors and assigns. This
Agreement and the payments hereunder may not be assigned, pledged or otherwise
hypothecated by Executive. This agreement shall be binding on the successors
and assigns of AMC.
10. ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto to constitute the entire understanding of the parties with respect to
the employment of Executive by AMC and supersedes all prior agreements and
understandings oral or written.
11. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise
specifically provided, all disputes arising under this Agreement shall be
submitted to and settled by arbitration. Arbitration shall be by one (1)
arbitrator selected in accordance wit the rules of the American Arbitration
Association, Atlanta, Georgia ("AAA") by the AAA. The hearings before the
arbitrator shall be held in Atlanta, Georgia, and shall be conducted in
accordance with the rules existing and the date thereof of the AAA to the
extent not inconsistent with this Agreement. All costs and expenses incurred in
connection with any such arbitration proceedings and those incurred in any
civil action to enforce the same shall be borne by the party against which the
decision is rendered.
12. AMENDMENTS. This Agreement may not be amended or modified
except in writing signed by both parties.
13. WAIVERS. The failure of either party to insist upon a strict
performance of any provision hereof shall not constitute a waiver of such
provision. All waivers must be in writing.
14. GOVERNING LAW. This Agreement shall be deemed to be made in
and in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMERICAN MEDCARE CORPORATION
By: /s/ Xxxxxxxxx X. Fine
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Name:
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Title: President
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EXECUTIVE
/s/ R. Xxxxxx Xxxxxxxx
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R. Xxxxxx Xxxxxxxx
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EXHIBIT A
INCENTIVE COMPENSATION
[To be agreed upon]
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