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Exhibit 10.3
EXECUTION COPY
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EMPLOYMENT AGREEMENT
I, Xxxxx Xxxxxx, 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 Worldwide, Inc., New Horizons, and Xxxxxx Business Systems,
Inc. d/b/a New Horizons Computer Learning Center and the Shareholders (as
defined in the Purchase Agreement). In addition, it is understood that I shall
only be required to perform services for New Horizons within the geographic
areas covered by the Franchise Agreement (as defined in the Purchase
Agreement). While employed by New Horizons, I shall devote my best efforts and
full business force 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.
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.
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.
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 Corporate Learning Center of
Denver, 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.
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.
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, 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 which Company has with
any Person.
7. CONFLICTS OF INTEREST.
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 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. 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.
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.
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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.
[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 Denver, Colorado, this 1st day of September, 1999.
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxx Xxxxxx
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Witness Signature Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
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Witness Printed Name
ACCEPTED AND AGREED to by Company, this 1st day of September, 1999.
By: /s/ Xxxxxx X. Xxxxxxx
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Company Officer
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SCHEDULE 1
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Manager of Administrative Services
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SCHEDULE 2.1
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$50,000/year
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SCHEDULE 2.2
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(Primary Listing Only)
Medical and Dental Insurance
- Consistent in benefits offering and cost to the coverage
currently received from Seller
401(k) Plan Participation
- Employee will be eligible to participate as of October 1,
1999 in the New Horizons Education Corp. 401(k) plan.
Employee will be given prior service credit for the time
employed by Seller.
Vacation Policy
- Employee will accrue vacation time at the rate consistent
with the NHEC policy as follows:
- 2 weeks vacation with pay after completing two years of
continuous employment.
- 3 weeks vacation with pay after completing five years of
continuous employment.
Holiday Policy
- NHEC offers 10 paid holidays per year.
Sick Policy
- Employee will be entitled to 40 hours of sick time per year.
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