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EXHIBIT 4.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), entered into March 31, 2000,
is by and between Panoramic Care Systems, Inc., a Delaware corporation (the
"COMPANY"), and Xxx Xxxx ("EMPLOYEE").
WHEREAS, Employee is presently employed by the Company and the Company and
Employee desire to set forth in this agreement the terms of his employment as
presently agreed upon.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee as Executive
Vice President of the Company to devote his full professional time and effort to
the business of the Company, and Employee hereby accepts such employment and
agrees to perform such duties and undertake such responsibilities as are
assigned to him from time to time by the board of directors of the Company or by
the Chief Executive Officer.
2. FULL-TIME BEST EFFORTS. Employee shall devote his full and exclusive
professional time and attention to the performance of his obligations under this
Agreement, and will at all times faithfully, industriously and to the best of
his ability, experience and talent, perform all of his obligations hereunder.
3. TERM OF EMPLOYMENT. Employee's term of employment hereunder shall be
for two years beginning June 1, 2000, and ending May 31, 2002, unless earlier
terminated pursuant to Section 7 below. The Agreement shall be renewed for
additional one year terms on each anniversary unless the Company or the Employee
gives notice of its or his intention not to review the Agreement sixty (60) days
preceding the renewal date.
4. COMPENSATION. During the term of Employee's employment, the Company
shall pay Employee an annual base salary of $133,500 (such annual salary, as it
may be increased from time to time, is referred to herein as the "BASE SALARY"),
payable in accordance with the Company's payroll practices. The Employee shall
have the opportunity to earn a bonus of up to 50% of his annual salary each
calendar year upon achieving milestones, completion of tasks and satisfying
financial performance criteria established by the Board of Directors in a
writing delivered to Employee within the first month of each calendar year.
5. BENEFITS. Employee shall be entitled to receive all benefits (such as
medical and dental insurance, paid vacation and sick pay) generally available
from time to time to other employees of the Company. Upon presentation of
appropriate documentation and consistent with the policies and procedures of the
Company, Employee shall be reimbursed by the Company for reasonable and
necessary out-of-pocket expenses incurred in the performance of his duties
hereunder. Additionally, Employee shall be reimbursed for his reasonable
expenses of relocation to Colorado or St Louis, MO, including moving expenses
and temporary living expenses, subject
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to approval as to reasonableness by the Board of Directors or Chief Executive
Officer of the Company.
6. COMMON STOCK OWNERSHIP - RESTRICTIONS ON SALE. In connection with
the Employee's acceptance of employment by the Company, he has acquired 500,000
shares of the Company's common stock (the "Shares") from a founding
shareholder. The Employee acknowledges that if he were to sell such shares this
might have an adverse effect upon the market price of the Company's stock and
he has therefore agreed that the Shares may not be sold by him into the public
market or otherwise, except that the restriction on the sale of his shares
shall expire as to one-half of the Shares on June 1, 2001, and the restriction
on the sale of the remainder of the Shares shall expire on June 1, 2002. The
Employee acknowledges that the Shares are also subject to restrictions on their
sale in the public market because they were not registered under the Securities
Act of 1933 (the "Act") when they were acquired from an affiliate of the
Company in a private transaction. The Shares are therefore restricted
securities, as that term is defined in Rule 144, and may be sold or transferred
only if registered under the Act or in a transaction that is exempt from such
registration under the Act.
7. TERMINATION.
(a) The Company may terminate Employee's employment hereunder at
any time for Cause (as hereinafter defined) effective immediately upon written
notice to Employee. Such notice shall specify that a termination is being made
for Cause and shall state the basis therefor. In such event, Employee shall have
and shall accrue no additional rights or benefits pursuant to the terms of this
Agreement from the date of such termination. For purposes of this Agreement,
termination for "CAUSE" shall be defined as termination because of:
(i) The continued failure by Employee to
substantially perform his duties hereunder for a period of
fifteen days after the Board of Directors or Chief
Executive Officer of the Company has made a second written
demand for performance that specifically identifies the
manner in which he believes that Employee has not
substantially performed his duties, such second demand to
follow at least 15 days after a first written demand for
performance.
(ii) The commission by Employee of a willful act
of dishonesty or misconduct that is injurious to the
Company (or any subsidiary or affiliate) or gross
negligence in the performance of his duties.
(iii) A conviction or a plea of guilty or nolo
contendere in connection with fraud or any crime that
constitutes a felony in the jurisdiction involved.
(iv) Employee's engagement in conduct constituting
"cause" under applicable law.
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A termination for Cause (which shall be in the sole discretion of the
Company) must be made, if at all, within ninety days after the Company learns of
the latest such event that entitles the Company to terminate Employee's
employment hereunder.
(b) Company may terminate Employee's employment at any time without
Cause. If the Company terminates Employee without Cause at any time, Employee
shall be entitled to receive from the Company his Base Salary until January 31,
2002, on the same terms as if his employment had not been terminated, but
Employee shall not be entitled to receive any other payments, rights or benefits
from the Company.
(c) Subject to the provisions of Sections 9,10 and 11 below, Employee
may resign from employment with the Company at any time.
(d) This Agreement shall terminate immediately upon the death of
Employee or if Employee is unable to perform his duties hereunder by reason of
illness, injury or incapacity for ninety consecutive days (during which time the
ill, injured or otherwise incapacitated Employee shall continue to be
compensated as provided herein).
(e) In the event of termination of his employment under either
paragraph (c) or (d) of this Section 7, Employee or his personal representative
or heirs shall be entitled to receive any benefits provided under any benefit or
similar plan or policy adopted by the Company or Panoramic and applicable to
Employee, but Employee shall accrue no additional rights or benefits pursuant to
the terms of this Agreement from the date of such termination.
8. INVENTIONS AND PATENTS. Employee agrees that all reasonably
patentable inventions, innovations or improvements in the Company's products or
methods of conducting its business (including new contributions, improvements,
ideas and discoveries, whether patentable or not) conceived or made by him while
he is employed by the Company belong to the Company, but may be used by Employee
at any time during the term hereof (so long as such use is not in violation of
any non-compete agreement between the Company and Employee) without compensation
to the Company. Employee will promptly disclose such inventions, innovations or
improvements to the other officers of he Company.
9. PROPERTY OF THE COMPANY. All books, documents, lists and records
pertaining to the Company's business (collectively the "RECORDS"), whether the
Records are written, typed, printed, contained on microfilm, computer disc or on
tape, or are set forth in some other medium of expression, are the sole and
exclusive property of the Company. Upon the termination of Employee's employment
with the Company, Employee shall promptly return to the Company all Records and
copies thereof that are in Employee's possession or that Employee has removed
from the Company's premises.
10. COVENANT NOT TO COMPETE. Employee agrees that for a period of three
(3) years after the termination of his employment with the Company, he will not,
without the prior written consent of the Board of Directors or Chief Executive
Officer of the Company, either individually, or in partnership or jointly or in
conjunction with any person, firm, corporation or any other entity as principal,
agent, employee or shareholder, or in any other manner whatsoever, directly or
indirectly (i) engage in, invest in (other that the ownership of less than 1% of
the securities of any
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publicly traded company), become associated with, accept employment with
(except for any employment with the Company), serve as a consultant to, or
accept compensation from, any person, firm or corporation (including any new
business started by Employee alone or with others) whose products and/or
services compete with those offered by the Company or any subsidiary or
affiliate (each such subsidiary and affiliate shall be included within the term
"Company" for purposes of this Section 10 and Section 11), anywhere within a
000-xxxx xxxxxx xx Xxxxxx, Xxxxxxxx, St. Louis, Missouri, or a 100-mile radius
of any other city served by the Company (the "TERRITORY"); (ii) contact or
solicit (directly or indirectly) any past customers (beginning 12 months prior
to the Closing Date) or current customer of the Company, for the purpose of
diverting any existing or future business of such customers to a competing
source; (iii) contact or solicit (directly or indirectly) or hire any employees
of, or vendors to, the Company, for the purpose of causing, inviting or
encouraging any such employee or vendor to alter or terminate his, her or its
employment or business relationship with the Company; or (iv) willfully make any
public statement or perform or do any other act that disparages or is
prejudicial or injurious to the reputation or goodwill, or otherwise interfere
with the business, of the Company.
11. CONFIDENTIALITY. Employee acknowledges that by virtue of, among
other things, his employment with the Company, he is in possession of and will
come into possession of certain confidential and proprietary information
relating to the business and operations of the Company. Employee agrees that he
will not, at any time during the term hereof or thereafter, (A) disclose any
trade secret, know-how or confidential information of the business of the
Company (including, but not limited to, cost or pricing information, customer
lists, commission plans, supply information, internal business procedures,
market studies, information concerning pending or contemplated acquisitions or
expansion plans of the Company or the existence of negotiations concerning the
same, and similar non-public information relating to the Company's internal
operations, business, plans, policies or practices), to any person other than an
employee of the Company, or (B) use or permit the use of any of the Company's
trade secrets, know-how or confidential information in any way to compete
(directly or indirectly) with the Company or in any other manner adverse to the
Company; provided, however, that the trade secrets, know-how and confidential
information referenced in the foregoing provision shall not include any
information or knowledge that: (i) is already generally publicly known or that
subsequently becomes generally publicly known other than as a direct or indirect
result of the breach of this Agreement by Employee or (ii) is lawfully required
to be disclosed by any governmental agency or applicable law. Employee further
covenants and agrees that at all times during the term hereof and at all times
thereafter Employee will hold all of the foregoing information, trade secrets
and know-how in secrecy as trustee or custodian for the Company for the
exclusive benefit of the Company, and will faithfully do everything in his power
to assist the Company in holding in secrecy the foregoing. The trade secrets,
know-how and the confidential information of the Company relate to the conduct
of the Company's business, are of independent economic value to the Company
because they are not generally known and are the subject of efforts by the
Company to maintain their secrecy. Employee acknowledges that the right to
maintain the secrecy of the trade secrets, know-how and confidential information
of the Company constitutes a proprietary right that the Company is entitled to
protect and that the disclosure, or improper use, of the trade secrets, know-how
or the confidential information of the Company by Employee will cause
irreparable harm to the Company.
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12. MISCELLANEOUS.
(a) For purposes of this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when personally delivered, two days after deposit in the mail if
mailed by certified mail, return receipt requested, or when received if
delivered via Federal Express or similar overnight courier service, or by
facsimile. Notices to the Company shall be given to the Company's Secretary,
addressed to the Company's corporate headquarters. Notices to Employee shall be
addressed to Employee's most recent address as set forth in the personnel
records of the Company. Either party shall be entitled to change the address at
which notice is to be given by providing notice to the other party of such
change in the manner provided herein.
(b) This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all prior
agreements, whether written or oral, including, without limitation, the letter
from the Company of the Employee dated January 17, 2000, and that certain Share
Transfer Agreement on the Trust Deed dated March 14, 2000. This Agreement may
be amended only by a writing signed by both parties hereto. Each party
represents and warrants that this Agreement has been duly and validly
authorized, executed and delivered by such party and constitutes a valid and
binding obligation of such party, enforceable against such party in accordance
with its terms.
(c) This Agreement shall be binding upon, and inure to the
benefit of the parties, their respective heirs, successors, personal
representatives and assigns.
(d) No waiver of any provision of this Agreement shall be valid
unless it is in writing and signed by the person or party against whom it is
charged.
(e) The parties hereto have endeavored to limit Employee's
rights to compete to the extent necessary to protect the Company and any
subsidiary or affiliate from unfair competition in connection with the
transactions contemplated by the Purchase Agreement; however, they recognize
that reasonable people may differ in making such determinations. Therefore, if
a determination is made that any temporal, territorial or activity-related
restriction on competition contained in this Agreement is to broad to permit
enforcement thereof to its fullest extent, then such restriction shall be
enforced to the maximum extent permitted by law, and the Company and Employee
hereby covenant and agree that they will promptly amend this Agreement to the
extent necessary and legally enforceable to accomplish the intent of such
parties in the provision hereof rendered unenforceable. Subject to the terms
of this section 12, if any provision of this Agreement is deemed invalid or
unenforceable by a court of law, such provision shall be considered to be
automatically deleted from this Agreement. Any such deletion shall apply only to
that portion of any provision so adjudicated, and the operation of such
provision shall only be deemed inapplicable in the particular jurisdiction in
which the adjudication is made.
(f) If either party shall commence any action or proceeding
against the other in order to enforce the provisions hereof, or to recover
damages as the result of the alleged breach of any provisions hereof, the
prevailing party therein shall be entitled to recover all reasonable costs
incurred in connection therewith, including reasonable attorneys' fees.
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(g) This Agreement shall be subject to and governed by the laws of
the State of Colorado.
(h) Employee acknowledges and agrees that the provisions of Sections
9, 10, and 11 of this Agreement are a reasonable and necessary protection of the
immediate and substantial interests of the Company or any subsidiary or
affiliate, that any violation of these restrictions would cause substantial
injury to the Company or any subsidiary and affiliate, and this Agreement
without the additional consideration offered by Employee in binding himself to
such provisions of this Agreement. In the event of a breach or threatened
breach by Employee of the provisions of Sections 9, 10, or 11 of his Agreement,
the Company shall be entitled to apply to any court of competent jurisdiction
for a temporary and/or permanent injunction restraining Employee from such
breach or threatened breach; provided, however, that nothing herein contained
shall be construed to preclude the Company from pursuing any other available
remedy for such breach or threatened breach in addition to, or in lieu of, such
injunctive relief.
(i) Each party to this Agreement has had the opportunity to review
this Agreement with legal counsel. This Agreement shall not be construed or
interpreted against any party on the basis that such party drafted or authored a
particular provision, parts of or the entirety of this Agreement.
(j) This Agreement is personal to Employee, and he shall not assign
any of his rights or delegate any of his duties hereunder without the prior
written consent of the Company. The Company shall have the right to assign this
Agreement to an affiliate of he Company.
(k) Unless the context of this Agreement clearly requires otherwise,
reference to one gender includes all genders.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the first date mentioned above.
EMPLOYEE COMPANY
Xxx Xxxx By: Xxxx X. Xxxxxxxxx
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Xxx Xxxx Name: Panoramic Air Systems, Inc.
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Its: Chairman
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