1
EXHIBIT 4.5
▇▇▇ ▇▇▇▇▇▇▇▇
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), effective as of August
23, 2000, is by and between Management - Data, Inc., a Missouri corporation (the
"COMPANY"), and ▇▇▇ ▇▇▇▇▇▇▇▇ ("EMPLOYEE"). Unless the context of this Agreement
specifically indicates otherwise, capitalized terms used herein shall have the
meanings given them in the Agreement and Plan of Merger dated June 12, 2000 (the
"MERGER AGREEMENT"), by and among Panoramic Care Systems, Inc., a Delaware
corporation ("PANORAMIC"); Panoramic Acquisition Corporation, a Missouri
corporation; and the Company.
WHEREAS, the Company wishes to employ Employee, and Employee desires to
accept such employment, on the terms and conditions set forth herein;
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 Director,
National Accounts 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
such officers as the board of directors may designate.
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 shall begin on the
Closing Date and shall continue until terminated pursuant to Section 6 below.
4. COMPENSATION. During the term of Employee's employment, the Company
shall pay Employee an annual salary of $100,000.00 (such annual salary, as may
be increased from time to time, is referred to herein as the "BASE SALARY"),
subject to such payroll deductions as are required by law. The Base Salary shall
be payable in accordance with the usual practice of the Company. The Employee
shall have the opportunity to earn a bonus of up to 100% 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.
2
6. 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 President or Chief Executive Officer
(or a duly authorized designee) of the Company or Panoramic
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
Panoramic (or any of their respective subsidiaries, affiliates
or predecessors) 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 engages in conduct constituting "cause"
under applicable law.
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 for any reason
other than Cause at any time. If the Company terminates Employee without Cause
at any time, Employee shall be entitled to receive from the Company his Base
Salary for a period of 24 months, 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) Employee may terminate this Agreement upon thirty days'
prior written notice to the Company if the Company or Panoramic has breached any
material term or condition of this Agreement without the express previous
written consent of Employee and such breach is not cured within the thirty-day
period following receipt by the Company of written notice from Employee of such
breach. Employee's notice shall specify the manner in which Employee believes
that the Company has breached this Agreement. Subject to the provisions of
Sections 8, 9 and 10 below, Employee may resign from employment with the Company
at any time.
-2-
3
(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). In either such event, 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.
7. INVENTIONS AND PATENTS. Employee agrees that all reasonably
patentable inventions, innovations or improvements in the Company's or
Panoramic'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
the Company or Panoramic.
8. PROPERTY OF THE COMPANY. All books, documents, lists and records
pertaining to the Company's or Panoramic's business (collectively, the
"RECORDS"), whether the Records are written, typed, printed, contained on
microfilm, contained on computer disc, contained in 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 promptly shall return to the Company all Records and copies thereof
that are in Employee's possession or that Employee has removed from the
Company's or Panoramic's premises.
9. 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 President or Chief Executive Officer of
Panoramic, 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 than the ownership of less than 1% of
the securities of any publicly traded company), become associated with, accept
employment with (except for any employment with Panoramic or 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, Panoramic or
any of their respective subsidiaries, affiliates or predecessors, anywhere
within a ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, 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, Panoramic or any
of their respective subsidiaries, affiliates or predecessors, 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, Panoramic or any of their respective
subsidiaries, affiliates or predecessors, 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, Panoramic or any of their
respective subsidiaries, affiliates of predecessors; or (iv) willfully make any
public statement or perform or do any other act that disparages or is
prejudicial
-3-
4
or injurious to the reputation or goodwill, or otherwise interfere with the
business, of the Company, Panoramic or any of their respective subsidiaries,
affiliates or predecessors.
10. 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 and Panoramic. Employee
agrees that he will not, at any time during the term hereof or hereafter, (A)
disclose any trade secret, know-how or confidential information of the business
of the Company or Panoramic, or any of their subsidiaries, affiliates or
predecessors (each and all of which entities shall be included within the
meaning of the term "COMPANY" for purposes of the remaining portion of this
Section 10) (including, but not limited to, cost or pricing information,
customer lists, commission plans, supply information, internal business
procedures, market studies, terms of the Merger Agreement or the transactions
contemplated thereby, 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.
11. 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.
-4-
5
(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. 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, Panoramic and
their respective subsidiaries, affiliates and predecessors 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 too 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 11, 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.
(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 8, 9, and 10 of this Agreement are a reasonable and necessary
protection of the immediate and substantial interests of the Company, Panoramic
and their respective subsidiaries and affiliates, that any violation of these
restrictions would cause substantial injury to the Company, Panoramic and their
respective subsidiaries and affiliates, and that the Company would not have
entered into the Merger Agreement or this Agreement, or completed the
transactions contemplated thereby and hereby, 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 8, 9, or 10 of this 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
-5-
6
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) This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument. Signatures may be exchanged by telecopy, with original signatures to
follow. Each party to this Agreement agrees that it will be bound by his or its
own telecopied signature and that he or it accepts the telecopied signature of
the other party to this Agreement.
(j) 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.
(k) 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 the Company or its lenders.
(l) Unless the context of this Agreement clearly requires
otherwise, reference to one gender includes all genders.
* * * * *
-6-
7
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed as of the first date mentioned above.
COMPANY:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Its: President
EMPLOYEE:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
-7-