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Exhibit 10.32
XXXXX XXXXX EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of the 23rd
day of August, 1996 by and between CONTINUCARE CORPORATION, a Florida
corporation (the "Company") and XXXXX XXXXX (the "Employee").
RECITALS
A. The Board of Directors of the Company (the "Board") believes that
the Employee can contribute to the growth and success of the
Company, and desires to assure the Company of the Employee's
employment and to compensate her therefor.
B. the Board has determined that this Agreement will reinforce and
encourage the Employee's attention and dedication to the Company.
C. The Employee is willing to make her services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follows:
1. EMPLOYMENT
1.1 GENERAL. The Company hereby agrees to employ the Employee, and
the employee hereby agrees to serve the Company on the terms and
conditions set forth herein.
1.2 DUTIES OF EMPLOYEE. During the term of this Agreement, the
employee shall serve as Executive Vice President, General Counsel,
and shall diligently perform all services as may be assigned to
her by the C.E.O., and shall exercise such power and authority as
may from time to time be delegated to her by the Board. The
Employee shall devote substantially all of her business time and
attention to the business and affairs of the Company, render such
services to the best of her ability, and use her best efforts to
promote the interests of the Company.
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2. TERM. Except as otherwise provided in Section 5 hereof, the term
of this Agreement shall commence on September 23, 1996 and shall
terminate at the end of the Term ("Term"). The Term shall be a
three-year period commencing September 23, 1996 and ending on
September 22, 1999.
3. COMPENSATION
3.1 BASE SALARY. The Employee shall receive a base salary at
the annual rate of One Hundred Thirty Thousand Dollars
($130,000) (the "Base Salary") during the Term of this
Agreement, with such base Salary payable in installments
consistent with the Company's normal payroll schedule,
subject to applicable withholding and other taxes.
3.2 BONUS. The Employee shall receive a bonus (the "Bonus")
equal t at least 10% of the Base Salary, which amount
shall be payable in equal quarterly installments over the
one-year period following the date hereof. The Employee
shall also be eligible to receive an additional bonus in
an amount determined by the majority vote of all members
of the Company's Board of Directors, based upon the
Company's operating results, financial condition,
prospects and intended utilization of earnings, if any.
3.3 COST-OF-LIVING INCREASE. Commencing August 23, 1997, and
each Anniversary Date thereafter during the term, the Base
Salary shall be increased, but shall not be decreased, by
that percentage by which the Consumer Price Index (All
Items Less Shelter), Urban Wage Earnings and Clerical
Workers for the Miami Florida area published by the United
States government (the "Index") for the immediately
preceding calendar year exceeds such Index for the next
preceding calendar year. If publication of the Index is
discontinued, the parties hereto shall accept comparable
statistics on the cost of living for the Miami, Florida
area as computed and published by an agency of the United
States government or, if no such agency computes and
publishes such statistics, by any regularly published
national financial periodical that does compute and
publish such statistics. The employee shall also be
eligible to receive an additional annual increase in
salary in an amount determined by the CEO of the Company.
3.4 STOCK OPTION. The Employee shall receive a warrant of
100,000 shares of the Company at a price of $5.00 per
share, which represents 90.0% of the fair market value of
the stock of the Company at the time of the offer. On
august 19, 1996 the closing price of Zanart on Nasdaq was
$6.00. The warrant shall vest gradually over a 5-year
period at a rate of 20% a year.
3.5 CHANGE OF CONTROL. Upon a change of control in the
Company, the Employee shall be entitled to an acceleration
of the remainder of the Employee's
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Agreement and the automatic vesting of the total warrant
of 100,000 shares of the Company.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS
4.1 OTHER REIMBURSABLE EXPENSES. During the term of the
Employee's employment hereunder, the Company, upon the
submission of proper substantiation by the employee, shall
reimburse the Employee for all other reasonable expenses
actually and necessarily paid or incurred by the Employee
in the course of and pursuant to the business of the
Company, including annual Florida bar and American Bar
Association dues and continuing legal education courses
necessary to maintain licensure with the Florida Bar.
4.2 OTHER BENEFITS. The Employee and her immediate family
shall be entitled to participate in all medical and
hospitalization, group life insurance, and any and all
other plans as are presently and hereinafter provided by
the Company to its executives. The Employee shall also be
entitled to three weeks vacation in accordance with the
Company's prevailing policy for its executives, with any
additional vacation time to be determined by the CEO.
4.3 WORKING FACILITIES. The Company shall furnish the Employee
with an office, secretarial help and such other facilities
and services suitable to her position and adequate for the
performance of her duties hereunder.
4.4 AUTOMOBILE ALLOWANCE. The Employee shall be entitled to an
automobile allowance of $400 per month, which amount is
intended to compensate Employee for wear and tear and
other expenses incurred by Employee by reason of the use
of Employee's automobile for Company business from time to
time.
5. TERMINATION
5.1 TERMINATION FOR CAUSE. The Company shall at all times have
the right, upon written notice to the Employee, to
terminate the employee's employment hereunder for "Cause"
(as hereinafter defined). For purposes of this Agreement,
the term "Cause" shall mean (I) the willful failure or
refusal of the employee to perform material duties or
render material services assigned to her from time to time
by the CEO or the Board (except during reasonable vacation
periods or sick leave) , (ii) the conviction of the
employee of a falony, (iii) the association, directly or
indirectly, of the employee for her profit or financial
benefit, with any person, firm, partnership, association,
entity or corporation that competes with the Company in
any material way, excluding purchases of stock by the
Employee not to exceed 5% of any publicly held company
which so competes, (iv) the disclosing or using of any
material trade secret or confidential information of the
Company at any time by the Employee, except
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as required in connection with her duties to the Company,
or (v) the intentional breach by the employee of her
fiduciary duty to the Company as defined by applicable
law. Upon any termination pursuant to this Section 5.1,
the Employee shall be entitled to be paid her Base Salary
to the date of termination and the amount, if any, of the
unpaid Bonus in accordance with Section 3.2 hereof, and
the Company shall have no further liability hereunder
(other than for reimbursement for reasonable business
expenses incurred prior to the date of termination).
5.2 DISABILITY. The Company shall at all times have the right,
upon written notice to the Employee, to terminate the
Employee's employment hereunder if the employee shall, as
the result of mental or physical incapacity, illness or
disability, become unable to perform her duties hereunder
for in excess of ninety (90) days in any 12-month period
so long as the Company is in compliance with applicable
law. Upon any termination pursuant to this Section 5.2,
the Company shall pay to the employee any unpaid amounts
of her base Salary accrued through the effective date of
termination and the amount, if any, of the unpaid Bonus in
accordance with Section 3.2 hereof, and an additional
amount to be determined by the majority vote of the Board
of Directors in their discretion, the Company shall have
no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred
prior to the date of termination, subject, however, to the
provisions of Section 4.1).
5.3 DEATH. In the event of the death of the Employee during
the term of her employment hereunder, the Company shall
pay to the estate of the deceased Employee any unpaid
amounts of her Base Salary accrued through the effective
date of her death and the amount, if any, of the unpaid
Bonus in accordance with Section 3.2 hereof, and the
Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses
incurred prior to the date of the employee's death,
subject, however, to the provisions of Section 4.1). In
the event of the death of the Employee on Company
business, the Board of Directors may consider payment of
an amount determined by a majority of the Board to the
estate of the Employee.
5.4 TERMINATION WITHOUT CAUSE. At any time the Company shall
have the right to terminate the employee's employment
hereunder by written notice to the employee; provided,
however, that the Company shall continue to pay to the
Employee the Base Salary for the balance of the Agreement
per Section 2 following the effective date of termination
specified in such notice in accordance with the Company's
normal payroll policies and the amount, if any, of the
unpaid Bonus in accordance with Section 3.2 hereof. In
addition, the stock option as described in Section 3.4
shall vest immediately and in the full amount of 100,000
shares. The Company shall have no further liability
hereunder (other than for reimbursement for reasonable
business expenses
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incurred prior to the date of termination, subject,
however, to the provisions of Section 4.1).
5.5 RESIGNATION BY EMPLOYEE. The Employee shall at all times
have the right, upon 180 days' written notice to the
Company, to terminate the Employee's employment hereunder.
Upon any termination pursuant to this Section 5.5, the
Employee shall be entitled to be paid her Base Salary to
the date of termination and the amount, if any, of the
unpaid Bonus in accordance with Section 3.2 hereof, and
the Company shall have no further liability hereunder
(other than for reimbursement for reasonable business
expenses incurred prior to the date of termination,
subject, however, to the provisions of Section 4.1).
5.6 CHANGE OF CONTROL. Upon a change of control in the
Company, upon 60 days notice, the warrant described in
Section 3.4 shall vest immediately in the amount of
100,000 shares. Change of control will also include any
termination of Xxxxxxx X. Xxxxxxxxx in his position of
Chairman and CEO of the Company, or the sale of more than
50% of Xx. Xxxxxxxxx' holding in the Company.
6. RESTRICTIVE COVENANTS
6.1 NON-COMPETITION. While employed by the Company and for a
period of ninety (90) days following the termination of
the Emp0loyee's employment hereunder (other than a
termination without cause, as contemplated by Section 5.4
hereof), the Employee shall not, directly or indirectly,
engage in or have any interest in any sole proprietorship,
partnership, corporation, or business or any other person
or entity (whether as an employee, officer, director,
partner, agent, security holder, creditor, consultant, or
otherwise) that directly or indirectly engages primarily
in the outpatient psychiatric healthcare business (the
"Business") in competition with the Company and/or its
"affiliates" (as such term is defined in rule 12b-2 as
promulgated under the Securities Exchange Act of 1934, as
amended) or otherwise similar to the business of the
Company and its affiliates in Florida or in any other
state in which the Company and/or its affiliates are
conducting business at the time of termination or
separation.
6.2 NONDISCLOSURE. Employee shall not divulge, communicate,
xxx to the detriment of the Company or any affiliate or
for the benefit of any other person or persons, or misuse
in any way, any confidential information pertaining to the
business of the Company or any affiliate. Any confidential
information or data now known or hereafter acquired by the
employee with respect to the business of the Company or
any affiliate (which shall include but not be limited to
information concerning the Company's or any affiliates'
financial condition, prospects, patients, sources, and
methods of doing business) shall be deemed a valuable,
special and unique asset of the Company that is received
by the
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employee in confidence and as a fiduciary, and the
employee shall remain a fiduciary to the Company with
respect to all such information except for information
which is in the public domain and any and all information
or documents requested by legal process, that is, by
subpoena, with the employee to provide sufficient
notification to the Company upon receipt of such legal
process.
6.3 NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. While employed
by the Company, and for a period of three years (except
that the period with respect to the prohibition in Clause
(ii) hereof shall be one year if Employee's employment is
terminated pursuant to Section 5.4 hereof) following the
date her employment is terminated hereunder, the employee
shall not, directly or indirectly, for herself or for any
other person, firm, corporation, partnership, association
or other entity, (I) attempt to employ or enter into any
contractual arrangement with any employee or former
employee of the Company, unless such employee or former
employee has not been employed by the Company for a period
in excess of six months, and/or (ii) call on or solicit
any of the actual or targeted patients of the Company, nor
shall the Employee make known the names and addresses of
such patients.
6.4 BOOKS AND RECORDS. All books, records, and accounts
relating in any manner to the customers or clients of the
Company, whether prepared by the employee or otherwise
coming into the Employee's possession, shall be the
exclusive property of the Company and shall be returned
immediately to the Company on termination of the
employee's employment hereunder or on the Company's
request at any time.
7. INJUNCTION. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Employee of any of the
covenants contained in Section 6 of this Agreement will cause
irreparable harm and damage to the Company, the monetary amount
of which may be virtually impossible to ascertain. As a result,
the employee recognizes and hereby acknowledges that the company
shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or
all of the covenants contained in Section 6 of this Agreement by
the employee or any of her affiliates, associates, partners or
agents, either directly or indirectly, and that such right to
injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida without
regard to any conflict of law, rule or principle that would give
effect to the laws of another jurisdiction.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter
hereof and, upon its effectiveness, shall supersede all prior
agreements, understandings, and arrangement, both oral and
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written, between the Employee and the Company (or any of its
affiliates, including, without limitation, Continucare
Corporation) with respect to such subject matter. This Agreement
may not be modified in any way unless by a written instrument
signed by both the Company and the Employee.
10. NOTICES. Any notice required or permitted to be given hereunder
shall be deemed given when delivered by hand or when deposited in
the United States mail, by registered or certified mail, return
receipt requested, postage prepaid, to the parties hereto at
their respective address set forth in the Purchase Agreement or
to such other address as either party hereto may from time to
time give notice of to the other.
11. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective
heirs, personal representative, legal representatives, successors
and, where applicable, assigns, including without limitation any
successor to the Company, whether by merger, consolidation, sale
of stock, sale of assets or otherwise; provided, however, that
the Employee shall not delegate her employment obligations
hereunder, or any portion thereof, to any other person.
12. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this
Agreement shall not affect the enforceability of the remaining
portions of this Agreement or any part thereof, all of which are
inserted conditionally on their being valid in law and, in the
event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared
invalid, this Agreement shall be construed as if such invalid
word or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections has not be inserted. If such
invalidity is caused by length of time or size of area, or both,
the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not
operate nor be construed as a waiver of any subsequent breach or
violation.
14. DAMAGES. Nothing contained herein shall be construed to prevent
the Company or the employee from seeking and recovering from the
other damages sustained by either or both of them as a result of
its or her breach of any term or provision of this Agreement. In
the event that either party hereto brings suit for the collection
of any damages resulting from, or for the injunction of any
action constituting a breach of any of the terms or provisions of
this Agreement, then the party found to be at fault shall pay all
reasonable court costs and attorneys' fees of the other.
15. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
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16. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, nor shall be construed to confer upon or
give any person other than the Company, the Employee and their
respective heirs, personal representatives, legal
representatives, successors and assigns, as applicable, any
rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CONTINUCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
C.E.O.
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
