EXHIBIT 10.44
SEPARATION AGREEMENT
--------------------
THIS AGREEMENT is made and entered into effective the 28th day of November,
2000, in Houston, Xxxxxx County, Texas, by and between DYNACQ INTERNATIONAL,
INC., a Texas corporation, and VISTA HEALTH CARE, INC., a Texas corporation,
hereinafter collectively referred to as "Dynacq", and XXXXX X. XXXXXXXXX
hereinafter referred to as "Xxxxxxxxx".
RECITALS
WHEREAS, Xxxxxxxxx is presently engaged by Dynacq in the following
capacities:
Chief Executive Officer - Vista Health Care, Inc.
Vice President and Chief Operation Officer - Dynacq International, Inc.
WHEREAS, both Dynacq and Xxxxxxxxx desire to terminate all of the foregoing
employment relationships, and any other employment relationships which may exist
between Xxxxxxxxx and Dynacq or any affiliate(s) of Dynacq, and to release each
other from all liabilities arising therefrom, and
NOW THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency is hereby acknowledged and confessed,
the parties hereby agree as follows:
1.01. Both Dynacq and Xxxxxxxxx agree that all of the employment
relationships between them, whether or not described above, are hereby
terminated for all purposes.
1.02. Each of the parties, for himself or itself and his or its
predecessors, successors, assigns, heirs, executors, administrators, officers,
directors, shareholders, and legal representatives, releases, acquits, and
forever discharges the others and their or its predecessors, successors,
assigns, heirs, executors, administrators, agents, officers, directors,
shareholders, and legal representatives, of and from any and all claims,
demands, damages, actions, causes of action or suits in equity of whatsoever
kind or nature, at common law, statutory, or otherwise, whether heretofore or
hereafter accruing or whether now known or not known to the parties, for or
because of any matter or thing done, omitted or suffered to be done by any of
such parties prior to and including the date hereof and in any way, directly or
indirectly, arising out of the employment relationships described herein, save
and except any claims for indemnity that either party may have against the
other.
1.03. It is expressly understood and agreed that the terms hereof are
contractual and not merely recitals, and that the agreements herein contained
and the consideration herein transferred shall not be construed as an admission
of liability by any party hereto, all liability being expressly denied by all of
the parties hereto.
1.04. Xxxxxxxxx shall be paid THREE HUNDRED THOUSAND DOLLARS ($300,000.00)
in twelve equal monthly payments of $25,000.00 each, as full and final
compensation for the non-compete covenant set forth in paragraph 1.05 below and
the confidentiality covenant set forth in paragraph 1.06 below. The first such
payment shall be due contemporaneously with the execution of this Agreement.
1.05. For a period ending November 30, 2002, and within a radius of fifty
(50) miles from the city limits of Pasadena, Xxxxxx County, Texas, Xxxxxxxxx
shall not, without the prior written permission of Dynacq, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or in other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatever with the business of Dynacq or any subsidiary
of Dynacq. Furthermore, during the same two (2) year period ending November 30,
2002, and within a radius of fifty (50) miles from the city limits of Pasadena,
Xxxxxx County, Texas, Xxxxxxxxx expressly agrees not to, either directly or
indirectly:
a. Make known to any person, firm, or corporation the names and
addresses of any of the customers of Dynacq that are accounts of
Dynacq at the time of the execution of this Agreement or at the time
of termination of this Agreement; or
b. Call on, solicit, or take away, or attempt to call on, solicit, or
take away any of the customers of Dynacq that were accounts of
Dynacq at the time of the execution of this Agreement or at the time
of termination of this Agreement.
Xxxxxxxxx and Dynacq recognize that the time restrictions set forth herein
are reasonable and are not burdensome, and are properly allowed by law for
the adequate protection of Dynacq and its shareholders. If such territorial
or time restrictions or any other provision contained herein shall be
deemed to be illegal, unenforceable or unreasonable by an arbitrator or
court of competent jurisdiction, such territorial or time restriction or
other provision shall be reduced by such arbitrator or court to such area
or period as such arbitrator or court shall deem reasonable.
1.06. During the term of the employment relationships which are terminated
hereby, Xxxxxxxxx has had access to and become familiar with various trade
secrets and confidential information consisting of client lists, pricing,
compilations of information, financial records, records and specifications owned
by Dynacq and regularly used in the operation of the business of Dynacq.
Xxxxxxxxx agrees and acknowledges that all such trade secrets, financial
information and confidential information is the property of Dynacq, constitute
trade secrets and confidential information belonging to Dynacq in which Dynacq
has a proprietary interest, and that it is essential for the continued operation
of Dynacq that same remains confidential. Xxxxxxxxx expressly covenants and
agrees that he will not reveal, divulge, disclose or communicate to any person,
firm or corporation, other than employees, agents and consultants of Dynacq, in
any manner whatsoever, any of the above-referenced trade secrets, confidential
or proprietary knowledge or information of Dynacq without the prior written
consent of Dynacq.
1.07. Xxxxxxxxx shall immediately deliver to Dynacq any property in the
Xxxxxxxxx' possession or under the Xxxxxxxxx' control belonging to Dynacq.
1.08. All notices or other communications required under this Agreement
may be effected either by personal delivery in writing or by certified mail,
return receipt requested. Notice shall be deemed to have been given when
delivered or mailed to the parties at their respective addresses as set forth
below or when mailed to the last address provided in writing to the other party
by the addressee:
To Dynacq
---------
Dynacq International, Inc.
0000-X Xxxxx
Xxxxxxxx, Xxxxx 00000
To Xxxxxxxxx
------------
Xxxxx X. Xxxxxxxxx
0000 X. Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
1.09. If any litigation is commenced between the parties to this Agreement
concerning the terms of same, the party prevailing in such litigation will be
entitled, in addition to such other relief as may be granted, to a reasonable
sum for attorneys fees incurred in such litigation.
1.10. The waiver by a party hereto of the breach of any provision hereof
by the other shall not constitute a continuing waiver or a waiver of any
subsequent breach of the same or any other provision of this Agreement.
1.11. Time is expressly declared to be of the essence in this Agreement.
1.12. The rights and remedies provided by this Agreement are cumulative,
and the use of any one right or remedy shall not preclude or waive that party's
right to use any or all other remedies, These rights and remedies are given in
addition to any other rights the parties may have by law, statute, or otherwise.
1.13. In case any one or more of the provisions contain in this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, and this Agreement must be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
1.14. This Agreement shall be construed under and in accordance with the
laws of the State of Texas.
1.15. No amendment, modification, or alteration of the terms of this
Agreement shall be binding unless the same be in writing, stated subsequent to
the date hereof, and executed by the parties hereto.
1.16. This Agreement constitutes the only Agreement of the parties hereto
regarding the subject matter hereof and supersedes any prior understanding or
written or oral agreements between the parties respecting said subject matter.
1.17. Venue of any action hereunder shall lie in the courts of Xxxxxx
County, Texas.
DYNACQ INTERNATIONAL, INC.
By:________________________________
Xxxxxx Xxxx, Vice President
VISTA HEALTH CARE, INC.
By:__________________________________
Xxxxxx Xxxx, Vice President
____________________________________
Xxxxx X. Xxxxxxxxx
CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into November ____, 2000, but effective
as of December 1, 2000, in Houston, Xxxxxx County, Texas, by and between DYNACQ
INTERNATIONAL, INC., a Texas corporation, and VISTA HEALTH CARE, INC., a Texas
corporation, hereinafter collectively referred to as "Dynacq", and XXXXX X.
XXXXXXXXX hereinafter referred to as "Xxxxxxxxx".
WHEREAS, both Dynacq and Xxxxxxxxx desire to enter into a consulting
relationship on the terms and conditions set forth below,
NOW THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency is hereby acknowledged and confessed,
the parties hereby agree as follows:
1.01. By this Agreement Dynacq engages Xxxxxxxxx, and Xxxxxxxxx accepts
engagement with Dynacq, for a period of one (1) year beginning on December 1,
2000 and ending November 30, 2001; however, this Agreement may be terminated
earlier, as provided in Article 7, below. At the end of the term, this Agreement
may continue upon the mutual written agreement of the parties hereto.
1.02. As compensation for all services rendered under this Agreement,
Xxxxxxxxx shall be paid by Dynacq a salary of FIVE THOUSAND DOLLARS ($5,000.00)
per month during the period of engagement.
1.03. Xxxxxxxxx shall be eligible for participation in Dynacq's major
medical insurance plan and choose to do so, Xxxxxxxxx shall pay the standard
employee's share of costs associated with such major medical insurance coverage.
1.04. Xxxxxxxxx shall perform the duties of a consultant to Dynacq. The
parties agree that Xxxxxxxxx' duties shall be limited to consultation by
telephone or other electronic means from Xxxxxxxxx' home or such other place
where Xxxxxxxxx may be found on any such matters relating to the Company that
may arise. Xxxxxxxxx shall perform no fewer than thirty (30) hours of services
for Dynacq per week.
1.05. During the term of this Agreement, Xxxxxxxxx may render services of
a business, commercial, or professional nature to any other person or
organization, so long as such services do not violate the terms of Article 1.06
below.
1.06. During the term of this Agreement and for a period ending November
30, 2002, and within a radius of fifty (50) miles from the city limits of
Pasadena, Xxxxxx County, Texas, Xxxxxxxxx shall not, without the prior written
permission of Dynacq, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or in other individual or representative capacity, engage or participate in any
business that is in competition in any manner whatever with the business of
Dynacq or any subsidiary of Dynacq. Furthermore, during the term of this
Agreement and for a period ending November 30, 2002, and within a radius of
fifty (50)
miles from the city limits of Pasadena, Xxxxxx County, Texas, Xxxxxxxxx
expressly agrees not to, either directly or indirectly:
a. Make known to any person, firm, or corporation the names and
addresses of any of the customers of Dynacq that are accounts of
Dynacq at the time of the execution of this Agreement or at the time
of termination of this Agreement; or
b. Call on, solicit, or take away, or attempt to call on, solicit, or
take away any of the customers of Dynacq that were accounts of
Dynacq at the time of the execution of this Agreement or at the time
of termination of this Agreement.
Xxxxxxxxx and Dynacq recognize that the time restrictions set forth herein
are reasonable and are not burdensome, and are properly allowed by law for
the adequate protection of Dynacq and its shareholders. If such territorial
or time restrictions or any other provision contained herein shall be
deemed to be illegal, unenforceable or unreasonable by an arbitrator or
court of competent jurisdiction, such territorial or time restriction or
other provision shall be reduced by such arbitrator or court to such area
or period as such arbitrator or court shall deem reasonable.
1.07. Xxxxxxxxx shall indemnify and hold harmless Dynacq from all
liability from loss, damage, or injury to persons or property resulting from the
gross negligence or misconduct of Xxxxxxxxx committed in the scope of Xxxxxxxxx'
engagement, and hereby agrees to do so.
1.08. During the term of this Agreement as a result of the nature of the
duties to performed by Xxxxxxxxx, Xxxxxxxxx may have access to and become
familiar with various trade secrets and confidential information consisting of
client lists, pricing, compilations of information, financial records, records
and specifications owned by Dynacq and regularly used in the operation of the
business of Dynacq. Xxxxxxxxx agrees and acknowledges that all such trade
secrets, financial information and confidential information is the property of
Dynacq, constitute trade secrets and confidential information belonging to
Dynacq in which Dynacq has a proprietary interest, and that it is essential for
the continued operation of Dynacq that same remains confidential. Xxxxxxxxx
expressly covenants and agrees that during the term of this Agreement and after
the termination of his engagement, he will not reveal, divulge, disclose or
communicate to any person, firm or corporation, other than employees, agents and
consultants of Xxxxxxxxx, in any manner whatsoever, any of the above-referenced
trade secrets, confidential or proprietary knowledge or information of Dynacq
without the prior written consent of Dynacq.
1.09. On the termination of engagement or whenever requested by Dynacq,
Xxxxxxxxx shall immediately deliver to Dynacq any property in the Xxxxxxxxx'
possession or under the Xxxxxxxxx' control belonging to Dynacq.
1.10. Either party may terminate the consulting relationship described
herein upon thirty (30) days written notice to the other. In the event of the
termination of the consulting relationship by Dynacq prior to the completion of
the Term of the relationship, Xxxxxxxxx shall be entitled to the
immediate payment of all compensation described herein for the remaining balance
of the full one (1) year Term hereof. In the event of the termination of the
consulting relationship by Xxxxxxxxx prior to the completion of the Term,
Xxxxxxxxx shall not be entitled any compensation after the effective date of
such termination.
1.11. All notices or other communications required under this Agreement
may be effected either by personal delivery in writing or by certified mail,
return receipt requested. Notice shall be deemed to have been given when
delivered or mailed to the parties at their respective addresses as set forth
below or when mailed to the last address provided in writing to the other party
by the addressee:
To Dynacq
---------
Dynacq International, Inc.
0000-X Xxxxx
Xxxxxxxx, Xxxxx 00000
To Xxxxxxxxx
------------
Xxxxx X. Xxxxxxxxx
0000 X. Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
1.12. If any litigation is commenced between the parties to this Agreement
concerning the terms of same, the party prevailing in such litigation will be
entitled, in addition to such other relief as may be granted, to a reasonable
sum for attorneys fees incurred in such litigation.
1.13. The waiver by a party hereto of the breach of any provision hereof
by the other shall not constitute a continuing waiver or a waiver of any
subsequent breach of the same or any other provision of this Agreement.
1.14. Time is expressly declared to be of the essence in this Agreement.
1.15. The rights and remedies provided by this Agreement are cumulative,
and the use of any one right or remedy shall not preclude or waive that party's
right to use any or all other remedies, These rights and remedies are given in
addition to any other rights the parties may have by law, statute, or otherwise.
1.16. In case any one or more of the provisions contain in this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, and this Agreement must be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
1.17. This Agreement shall be construed under and in accordance with the
laws of the State of Texas.
1.18. No amendment, modification, or alteration of the terms of this
Agreement shall be binding unless the same be in writing, stated subsequent to
the date hereof, and executed by the parties hereto.
1.19. This Agreement constitutes the only Agreement of the parties hereto
regarding the subject matter hereof and supersedes any prior understanding or
written or oral agreements between the parties respecting said subject matter.
1.20. Venue of any action hereunder shall lie in the courts of Xxxxxx
County, Texas.
DYNACQ INTERNATIONAL, INC.
By:________________________________
Xxxxxx Xxxx, Vice President
VISTA HEALTH CARE, INC.
By:__________________________________
Xxxxxx Xxxx, Vice President
____________________________________
Xxxxx X. Xxxxxxxxx
