EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the effective date designated
below ("Effective Date"), by and between Arcadia Resources, Inc., a Nevada
corporation, ("Employer") and the undersigned individual ("Employee").
RECITALS
Subject to the terms of this Agreement, Employer desires to employ, or
continue the employment of, Employee in the position(s) set forth herein, and
Employee desires to accept such employment.
NOW, THEREFORE, In consideration of the recitals and covenants herein and
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
1. "AT WILL" EMPLOYMENT. Beginning on the Effective Date, Employer agrees
to employ, or to continue the employment of, Employee on an "at will" basis, and
Employee hereby accepts such employment, subject to and in accordance with the
terms and conditions hereinafter set forth. Employee agrees that employment with
Employer is and shall remain on an "at will" basis, and that nothing within or
outside of this Agreement shall confer to Employee any guaranty of continued
employment with Employer. Accordingly, either Employee or Employer may terminate
Employee's employment at any time, with or without cause, with or without prior
notice.
2. DUTIES AND RESPONSIBILITIES. Employee shall serve in the position(s)
designated below, and in such position(s) as Employer may assign hereafter, on a
full-time basis and shall report to John E. Elliott (Chief Executive Officer) or
Lawrence R. Kuhnert (President), as designated by Employer. Employer may
hereafter change the position(s) held by Employee, Employee's reporting
relationships, and the responsibilities assigned to Employee or of the
position(s) held by Employee. Employee shall perform such duties and
responsibilities as are consistent with such position(s) held by Employee and/or
assigned by Employer. Employee agrees to use Employee's best efforts to perform
any and all such duties and responsibilities necessary or appropriate to perform
the functions of such position(s). While employed by Employer, Employee agrees
not to work for any other business or enterprise, whether as an employee, agent,
independent contractor or in any other capacity whatsoever, except that Employer
hereby permits Employee to do so for Ackley Properties Management, Inc. and
Haifley Enterprises, LLC provided that by doing so Employee does not violate the
provisions of the Agreement, including Sections 6, 7 and 8.
3. COMPENSATION AND BENEFITS. Employer agrees to pay and provide Employee,
and Employee agrees to accept in full consideration for Employee's services to
Employer, the following:
A. SALARY. An annual base salary in the amount designated below
("Annual Base Salary"), less applicable withholdings, payable in
accordance with the normal
payroll practices of Employer. Employee's Annual Base Salary may be
modified by Employer from time to time in Employer's discretion.
B. VACATION AND SICK TIME. EMployee shall be entitled to take up to
four (4) weeks of paid vacation per year, plus a limited amount of paid
time off for sickness, disability, or other personal reasons in accordance
with the Employer's general time-off policies in effect from time to time
for its employees.
C. FRINGE BENEFITS/RETIREMENT PLAN. Employee shall be entitled to
health care benefits, and additionally to participate in such additional
fringe benefits and qualified retirement plans and other plans offered by
Employer to its employees generally from time to time, in accordance with
Employer's eligibility and participation provisions of such plans.
D. EXPENSE REIMBURSEMENT. The Employer shall reimburse Employee all
reasonable out-of-pocket expenses incurred by Employee in connection with
the performance of duties hereunder and upon Employee's submission of such
receipts and records as Employer requires to evidence such expenses.
E. VEHICLE ALLOWANCE. Employee shall receive a $750 monthly vehicle
allowance and fuel card.
F. RESTRICTED STOCK GRANT. Contingent and effective on written
notification of approval by Employer's Board of Directors which shall be
given as of the Effective Date of this Agreement (the "Grant Date"), such
terms and conditions as specified by the Board of Directors, and
Employee's execution of the Employer's restricted stock grant agreement,
Employer agrees to grant Employee up to a total of One Hundred and Fifty
Thousand (150,000) restricted shares of Employer's common stock (the
"Restricted Stock"), contingent on Vesting and subject to forfeiture as
specified herein. The Restricted Stock is a "restricted security" within
the meaning of and subject to the holding period and other restrictions
prescribed by Rule 144 promulgated by the U.S. Securities and Exchange
Commission and as provided herein. Shares of the Restricted Stock shall
"Vest" as follows: (a) upon the Effective Date of this Agreement, Employer
shall issue employee 9,375 shares of the Restricted Stock, which shares
shall be fully Vested as of such grant date; and (b) on the first day of
each fiscal quarter beginning after the Effective Date of this Agreement,
Employer shall issue Employee 9,375 shares of the Restricted Stock, which
shares shall be fully Vested as of such grant date, provided that Employee
has been continuously employed by Employer through and as of such grant
date. No additional shares of Restricted Stock shall be issued when and if
Employee has been issued a total of 150,000 shares of Restricted Stock.
All shares of the Restricted Stock which have not Vested and have not been
issued to Employee are "Non-Vested Shares." Employee shall have no rights
as a shareholder or otherwise in Non-Vested Shares of the Restricted Stock
and any purported attempt by Employee to transfer any interest in
Non-Vested Shares of the Restricted Stock shall be null and void and not
binding on the Company. All shares of the Restricted Stock which are
Vested shall be deemed issued in advance, not in arrears, and upon any
termination of employment, whether by Employer or Employee, whether for
cause or without cause, all Non-Vested
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Shares of the Restricted Stock shall be automatically forfeited and shall
be null and void. Employee shall be responsible for all tax obligations
arising from such Restricted Stock and acknowledges that Employer may
withhold payroll taxes in such regard.
G. STOCK OPTIONS. Employee acknowledges that Employer previously
granted Employee statutory/non-tax qualified options to purchase up to an
aggregate of One Hundred Thousand (100,000) restricted shares of
Employer's common stock at an exercise price of $1.45 per share, which
options vested as of March 31, 2005 and are exercisable through March 31,
2010 or ninety (90) days following termination of employment on any basis
(whether for cause or without cause, etc.), whichever event occurs first,
contingent on Employee's execution of Employer's stock option agreement
and the covenant not to compete contained herein. Employee shall be
responsible for all tax obligations arising from such option or the stock
acquired and acknowledges that Employer may withhold payroll taxes in such
regard.
4. OBLIGATION UPON TERMINATION OF EMPLOYMENT
A. TERMINATION AND SEVERANCE PAYMENT. Subject to Sections 4B
and 5 below, if the Employer terminates Employee's employment,
Employer shall pay Employee the unpaid Annual Base Salary and
benefits earned and accrued through the date of termination, plus
all unreimbursed expenses through such date, plus the Employer shall
pay, as severance, an amount equal to Employee's Annual Base Salary
at the rate in effect on the date of termination. Such severance
amount, less applicable withholdings, shall be paid in a single lump
sum within thirty (30) days following the termination of Employee's
employment. No interest shall be paid on the severance amounts set
forth in this paragraph. This Section 4A shall not apply in the
event that Section 4 B applies or Section 5 applies.
B. TERMINATION FOR CERTAIN REASONS. If Employee's employment
is terminated by the Employer for cause including for any one or
more of the following reasons, then in such case Employer shall only
be obligated to pay Employee the amount of any unpaid Annual Base
Salary earned and accrued through the date of termination, together
with any unreimbursed expenses:
(i) The conviction of any crime involving moral turpitude;
(ii) The conviction of, or pleading guilty or no contest to,
any crime, whether or not involving the Employer, constituting a
felony in the jurisdiction involved, which Employer, in its sole
discretion, determines may have an injurious effect on it;
(iii) The Employee's breach of fiduciary duty, gross
negligence, willful misconduct, insubordination, or the willful and
repeated failure or refusal to perform such duties as may be
properly delegated to Employee by Employer hereunder; or
(iv) The non-performance of Employee's duties within five (5)
days following receipt of written notice from the Employer of such
failure or non-performance, provided such is consistent with the
duties normally associated with Employee's position and not
violative of applicable laws.
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C. NO FURTHER OBLIGATIONS. Upon the termination of Employee's
employment under 4A or 4B above, Employer shall have no further
liability or obligation whatsoever to Employee or Employee's
personal representative, estate, heirs, beneficiaries, or any other
person claiming by, under or through Employee, except as stated in
such Sections.
5. CHANGE OF CONTROL. If, during the period commencing 120 days
prior to a "Change in Control" and ending on the first anniversary of such
Change in Control, Employee's employment is terminated by the Employer for
any reason other than for cause specified in Section 4B, or by Employee
and both John E. Elliott, II and Lawrence R. Kuhnert do not hold the
positions of CEO and President (or the equivalent thereof), respectively,
of the Company or any successor to the Company, then Employee shall
receive two and one-half (2.5) times Employee's Annual Base Salary in
effect on the date of termination, less applicable withholdings, plus all
unreimbursed expenses through such date of termination, payable in full
within thirty (30) days of the date of such termination. For this purpose,
a Change in Control shall have the same meaning given to such term in the
Corporation's 2002 Stock Option Plan.
6. INVENTIONS. If any at time Employee shall, either alone or with
others, make, devise, create, invent or discover any inventions,
improvements, modifications, developments, ideas, products, property,
formulas, know-how, designs, models, processes, prototypes, sketches,
drawings, plans or other matters whatsoever (whether or not capable of
being protected by letters of patent, registration, copyright, registered
trademark, service marks or other protection) which, in any manner, relate
to, arise out of, or are in connection with the present or future business
prospects or activities of Employer (collectively "Inventions"), all such
Inventions shall immediately be and remain the sole and exclusive property
of Employer and Employee shall immediately and confidentially communicate
a description of the Invention to Employer and to no other party at any
time, and if Employer so desires, Employee shall execute all documents and
instruments and do all things as may be requested by Employer in order to
forever vest all right, title and interest in such Invention solely in
Employer and to obtain such letters of patent, copyrights, registrations
or other protections as Employer may, from time to time, desire.
7. CONFIDENTIALITY. Employee acknowledges and agrees that at all
times during and following the termination of employment with Employer
under any circumstances, Employee shall not use or disclose (i) any
information, knowledge or data relating in any way to the business,
financial condition, sales, public and private sources of financing,
sales, customers, operations, suppliers, products, services, Inventions,
business relationships, manufacturing, technologies or services of
Employer, or (ii) any other proprietary or confidential information,
knowledge, data or details of the past, present or future business affairs
or practices of Employer (items (i) and (ii) are hereafter referred to as
"Confidential Information"), except Employee may use any such Confidential
Information provided to Employee as necessary solely during the term of
Employee's employment for the sole purpose of carrying out Employee's
duties hereunder for Employer's benefit provided Employee takes adequate
measures to protect the confidentiality thereof. Employee covenants and
agrees that (i) the use and disclosure restrictions applicable to
Confidential Information shall also apply to all documents or other
materials containing any Confidential Information ("Confidential
Materials"), (ii) all Confidential Materials are and shall remain at all
times the sole exclusive property of Employer and (iii) upon termination
of employment, Employee shall promptly return all Confidential Materials,
and all copies and
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extracts thereof, to Employer and at no time shall any Confidential
Materials be used, copied, published, circulated or disclosed, in any
manner whatsoever, except as specifically authorized herein other
otherwise in writing by Employer.
8. COVENANT-NOT-TO-COMPETE. Except to the limited extent permitted
by the exception specified herein (the "Permitted Exception"), Employee
covenants and agrees that during the term of employment and for the one
(1) year period following termination of employment (whether for cause or
without cause, by Employer or Employee) (the "Restricted Period"),
Employee shall not within 60 miles of any location of the Employer or its
affiliates at which Employee worked or for which Employee had managerial
or other executive responsibility while employed by Employer (collectively
the "Restricted Area"), in any manner, directly or indirectly, through
intermediaries or other persons or entities, either as owner, shareholder,
director, officer, manager, member, agent, consultant, creditor,
representative, investor, partner, employee, or on behalf of any other
person or entity, or in any other capacity whatsoever (excepting
Employee's passive ownership of less than 5% of the securities of a
publicly traded entity) (i) engage in, assist, provide capital, services,
advice or information to, or in any manner whatsoever become associated
with any business or enterprise that offers products or services similar
in type, nature, style, function or purpose with those offered by the
Employer or its affiliates or any business or enterprise that is
competitive with or similar to any business conducted by the Employer or
its affiliates, (ii) contact for any business purpose, solicit or attempt
to solicit any supplier, customer, agent, representative or employee of
the Employer or its affiliates, or otherwise interfere with or attempt in
any manner to disrupt any relationship or agreement between the Employer
or its affiliates and any of its customers, employees, agents,
representatives or others doing business with the Employer or its
affiliates, or (iii) compete with the Employer or its affiliates
("Restricted Activities"). Employee agrees that any Restricted Activities
outside the Restricted Area with respect to or directly or indirectly
relating to any portion of the Restricted Area shall be deemed conducted
within the Restricted Area and prohibited hereby. As used herein,
"affiliates" shall include Employer's affiliated agencies and direct or
indirect subsidiaries or other business ventures. Employee acknowledges
and agrees that the legal consideration for Employee's agreement to
Sections 6, 7, 8 and 9 of this Agreement include Employee's initial or
continued employment hereunder, Employer's agreement to grant restricted
stock and Employer's agreement to pay severance compensation in the
circumstances described herein, and that Sections 6, 7, 8 and 9 of this
Agreement shall be enforceable by Employer's successors and assigns. The
Permitted Exception is defined to mean that Employee shall be permitted to
be a majority investor in, and shall be permitted to advise, consult with
and assist, a competing venture majority owned by Employee's child (i.e.,
other than Employee, Employee's child shall be the majority owner),
provided that (a) the venture is located and competes with Employer solely
within a 50 mile radius of Ft. Wayne, Indiana, (b) the furnishing of
advice, consultation and assistance by Employee does not interfere with
the performance of his duties to Employer, and (c) Employee gives Employer
prior written notice of Employee's proposed investment in the venture.
9. ENFORCEABILITY. Employee agrees to the terms and conditions of
Sections 6, 7 and 8 of this Agreement in consideration of Employer's
covenants and promises herein, including but not limited to the grant of
Restricted Stock, stock options and severance compensation provisions set
forth herein. Employee expressly agrees and acknowledges that a loss
arising from a breach of any provision under Sections 6, 7, and 8 may not
be reasonably and equitably compensated by
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money damages. Therefore, Employee agrees that in a case of any such
breach, Employer shall be entitled to injunctive and/or other
extraordinary relief in order to prevent Employee from engaging in any of
the foregoing prohibited activities, which relief shall be cumulative and
in addition to any and all other additional remedies to which Employer may
be entitled to at law or equity. In the event that any court of competent
jurisdiction shall determine that any part or all of the provisions of
Sections 6, 7, and 8 are unenforceable or invalid due to the scope of the
activities restrained, the geographical extent of the restraints imposed,
the duration of the restraints imposed, or otherwise, the parties hereby
expressly intend, agree and stipulate that under such circumstances, the
provisions of Sections 6, 7, and 8 shall be enforceable to the fullest
extent and scope permitted by law and that the parties shall be bound by
any judicial modifications to the provisions therein which said court of
competent jurisdiction may make in order to carry out the intentions of
the parties as provided herein.
10. GOVERNING LAW AND ARBITRATION. This Agreement and all disputes
arising out of Employee's employment shall be governed by and construed in
accordance with the laws of the State of Florida, notwithstanding the fact
that either party hereto is or may hereafter become domiciled or located
in a different state. Any dispute, controversy or claim arising out of or
relating to this Agreement or Employee's employment, whether arising in
contract, tort or otherwise, including all claims assertable under any
federal or state law prohibiting discrimination in employment, shall be
resolved at arbitration in accordance with the rules of the American
Arbitration Association, except for any equitable or injunctive relief
sought by Employer under this Agreement. The arbitration shall be held at
a location within Collier County, Florida. The parties hereto agree that
any arbitration award rendered on any claim submitted to arbitration shall
be final and binding upon the parties and not subject to appeal and that
judgment may be entered upon any arbitration award by any circuit court
located in Florida or by any other court of competent jurisdiction. The
parties hereto agree that the expenses of any arbitration shall be borne
equally by the parties to the proceeding, except that the party determined
to have prevailed in any arbitration or civil action brought by the
Employer shall be awarded its reasonable attorneys fees and costs of its
own experts, evidence and the like. Employee acknowledges and agrees that
by making this agreement to submit all claims to binding arbitration,
Employee hereby waives the right to litigate in a court of law, and to
trial by jury if applicable, all claims against Employer, including all
claims assertable under any federal or state law prohibiting
discrimination in employment.
11. WAIVER OF BREACH. The waiver of breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any party
hereto or allowed it by law shall be cumulative and not exclusive of any
other.
12. SEVERABILITY. If any of the provisions of this Agreement or the
application thereof to any party under any circumstances is adjudicated to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement or the application thereof.
13. INTERPRETATION OF AGREEMENT. Where appropriate in this
Agreement, words used in the singular shall include the plural, and words
used in the masculine shall include the
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feminine and neuter. All headings that are used in this Agreement are for
the convenience of the reader only and shall not be used to limit or
construe any of the provisions hereof.
14. SURVIVAL OF PROVISIONS. The obligations of Employee under
Sections 6, 7, 8 and 9 of this Agreement are continuing and shall survive
the termination of Employee's employment under any circumstances
whatsoever.
15. AMENDMENT OF AGREEMENT. The terms and provisions of this
Agreement may be altered or amended in any of their provisions only by the
signed written agreement of the parties hereto.
16. SUCCESSORS. The Agreement shall inure to the benefit of Employer
and its successors and assigns, including but not limited to the
provisions of Sections 6, 7, 8 and 9, but may not be assigned or delegated
by Employee as it requires Employee's personal services.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes any and all other previous or contemporaneous
communications, representations, understandings, agreements, negotiations
and discussions, either oral or written, between the parties. The parties
acknowledge and agree that there are no prior or contemporaneous written
or oral agreements, understandings, or representations, directly or
indirectly related to this Agreement that are not set forth herein.
18. COUNTERPART/FACSIMILE SIGNATURES. This Agreement may be executed
in two or more counterparts and by facsimile signature, each of which
shall be deemed an original, and all of which together shall constitute
one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective the date and year first above written.
EMPLOYEE SPECIFIC INFORMATION
Employee James E. Haifley
Effective Date of Agreement December 7, 2005
Position Executive Vice President of Arcadia Resources, Inc. ("ARI")
Responsibilities Including operations, sales and marketing for ARI
Services Division and ARI Durable Medical Equipment Division
Annual Base Salary $140,000.00 per annum
Vehicle Allowance $750.00 per month and fuel card
/s/JAMES E. HAIFLEY
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Dated: December 7, 2005
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ACCEPTED BY EMPLOYER:
ARCADIA RESOURCES, INC.,
a Nevada corporation
By: /s/ John E. Elliott, II
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Its: Chairman and CEO
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Dated: December 7, 2005
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