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Exhibit 10.4
EMPLOYEE AGREEMENT
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I, Xxxxxx X. Xxxxxx III, for and in consideration of my employment by
New Horizons Education Corporation, a Delaware corporation, or an Affiliate
thereof (both 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 with Company.
1. EMPLOYMENT.
Subject to early termination as provided in Section 8 of this
Agreement, for a period of three (3) years commencing on the date hereof (the
"Employment Period"), Company hereby employs me in the position identified on
SCHEDULE I hereto, and I hereby accept such employment. As such, I will perform
such reasonable and appropriate duties for Company as may be assigned to me by
the Board of Directors or by any executive officer of Company or any designee
thereof to whom I report, consistent with my duties prior hereto; provided, that
I shall not be required to relocate my residence or primary work place from
Shelby County, Tennessee. While employed by Company, I shall devote my best
efforts to the business and welfare of Company in accordance with and in
furtherance of the policies and directives of Company in effect from time to
time; provided, however, that I shall not be required to devote more than two
and one-half days per week on average in a given month to performing my services
for Company.
2. COMPENSATION AND BENEFITS.
2.1 SALARY AND BONUS. Company shall pay me a base salary during the
Employment Period at the rate per year shown on SCHEDULE I hereto, less such
deductions and withholdings as are required by law (the "Salary"), which Salary
shall be payable in accordance with Company's standard payroll practices;
PROVIDED, that, I shall receive an annual compensation review and my Salary
shall be adjusted to reflect performance and fairness within the Company;
PROVIDED, further, that my Salary shall be increased each year after the first
year of the term hereof by an amount of not less than five percent (5%) of the
amount of such Salary during the preceding year.
2.2 BENEFITS. Company shall provide me during the Employment Period
with substantially the same benefits that I currently receive, which benefits
are described on SCHEDULE I hereto.
2.3 EXPENSES. Company shall reimburse me for reasonable expenses I
incur in the performance of services on behalf of Company during the Employment
Period. I shall furnish Company 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.
3.1 "Company" means New Horizons Education Corporation, a Delaware
corporation ("New Horizons") and any Affiliate of New Horizons. An "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 "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.
3.3 "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 Employee and another Person or
improperly using or disclosing trade secrets of another Person. Notwithstanding
the foregoing, the activities listed and described on SCHEDULE II shall not
constitute "Conflicts of Interest."
3.4 "I, me, my or other personal pronoun" means the individual
executing this agreement as an employee of Company.
3.5 "Person" means any natural person, corporation, partnership,
limited liability corporation, joint venture, unincorporated association, sole
proprietorship, or other entity utilized for conducting business.
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4. CONFIDENTIAL INFORMATION.
4.1 I shall not, directly or indirectly, use or disclose, or take or
remove from the possession of Company, any Confidential Information during my
employment by Company 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.
5.1 I acknowledge and agree that while employed by Company and for a
two (2) year period following termination of my employment with Company for any
reason, and in no event prior to the fifth anniversary date of the Asset
Purchase Agreement (as defined below), 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, 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 two (2) year period thereafter,
and in no event prior to the fifth anniversary of the Asset 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.
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
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interfere with any prospective business relationship or advantage which Company
has with any Person.
7. CONFLICTS OF INTEREST.
7.1 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.
8.1 MANNER OF TERMINATION. This Agreement may be terminated prior to
the expiration of the Employment Period, as follows:
(a) BY THE COMPANY FOR DISABILITY. At the option of and by written
notice from Company 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 Company renders me unable to perform my duties consistent
with past practice.
(b) BY THE COMPANY FOR CAUSE. By Company, if Company finds "Cause"
for termination. For purposes of this Agreement, the term "Cause" shall mean (i)
a material breach of my obligations under this Agreement or my fiduciary
obligations to Company, (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 Company or of any executive officer of Company or any
designee thereof to whom I report related to performance of my duties for
Company.
(c) DEATH. Upon my death.
8.2 CONSEQUENCES OF TERMINATION. The provisions of Sections 4, 5 and 6
will survive expiration or earlier termination of this Agreement for any reason,
except that (a) my obligations in Sections 4 and 5 shall terminate should New
Horizons fail to make any Earn Out Payments required under Section 3.3 of the
Asset Purchase Agreement (as defined hereafter), and (b) in the event New
Horizons terminates my employment 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 inure to the benefit
of Company, its Affiliates and their successors and assigns.
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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.
9.3 This Agreement and the Asset Purchase Agreement dated April 30,
1998 among New Horizons, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxx X. Xxxxx, Xxxxxx
X. Xxxxxx III, and New Horizons Computer Learning Center of Nashville, Inc., a
Tennessee corporation (the "Asset Purchase Agreement") constitute the entire
agreement between the Company and me with respect to the subject matter hereof
and supersedes all prior negotiations, understandings, and agreements with
respect thereto.
9.4 Upon termination of my employment with Company for any reason, and
for a period of two (2) years thereafter, I shall immediately notify Company of
any change of any address and the name and address of my subsequent employers.
9.5 This Agreement may be amended only by an agreement in writing
between the parties.
9.6 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.
9.7 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.
[Signatures on Next Page]
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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 Memphis, Tennessee, as of the 30th day of April, 1998.
/s/ X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx III
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Witness Signature Employee
X. Xxxxxxx
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Witness Printed Name
ACCEPTED for and on behalf of Company, as of the 30th day of April, 1998.
NEW HORIZONS COMPUTER LEARNING
CENTER OF MEMPHIS, INC.
(a Delaware corporation)
By: /s/ Xxxxxx X. Xxxxxxx
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Company Officer
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SCHEDULE I
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Salary (Year One): $ 22,500
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Position: Chief Operating Officer
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Benefits: Cellular Telephone, Disability Insurance,
and Family Health Insurance
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SCHEDULE II
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No "Conflict of Interest" shall be deemed to exist by reason of:
- Employment by any Affiliate of New Horizons; or
- Employment by, on ownership of equity interests in, any of New Horizons
Computer Learning Center of Nashville, Inc., New Horizons Computer
Learning Center of Indianapolis, LLC, New Horizons Computer Learning
Center of Columbus, Ltd., Encore Training Systems, LLC, American Way
L.L.C. or New Horizons Computer Learning Center of Memphis, Inc. (a
Tennessee corporation)
