1
EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
, 1991, by and between BIRMAN & ASSOCIATES, INC., a Tennessee
corporation (the "Company"), and BRAD SEITZINGER, M.D., a resident of
Westerville , Ohio (the "Employee").
1. POSITION AND TERM OF EMPLOYMENT. The Company employs the
Employee as a Physician of the Company for a term commencing on the date of this
Agreement and continuing until terminated in accordance with the terms of this
Agreement.
2. DUTIES AND RESPONSIBILITIES. The Employee shall be the Field
Operations Representative of the Company. The Employee shall have general and
active supervision over the Operations and Program Management of the Company.
The Employee shall have and exercise such rights, powers and privileges as may
be prescribed from time to time by the officers and directors of the Company.
The Employee shall devote the Employee's full time and best efforts to the
performance of such duties.
3. COMPENSATION.
A. SALARY. For the services to be performed by the Employee
hereunder, the Company shall pay the Employee a salary of One Hundred and
Twenty-Five Thousand Dollars ($125,000) per year, payable in equal periodic
installments as agreed upon by the Company and the Employee, but not less than
monthly. The Company shall review the salary of the employee from time to time,
and may increase or decrease the salary of the Employee and authorize additional
compensation by way of salary, bonus, or otherwise, as it deems appropriate, at
any time during the term of this Agreement.
B. SICK PAY. In the event the Employee becomes unable to perform
the Employee's duties under the terms of this Agreement by reason of sickness or
accident, the Employee shall receive the Employee's full salary during the first
thirty (30) days of such incapacity in any period of twelve (12) consecutive
months, but shall receive no salary thereafter until the Employee returns to
work. Sick pay shall be non-cumulative and in no event shall the Employee be
entitled to compensation in lieu of absence due to incapacity.
C. VACATION. The Employee shall be entitled to two (2) weeks paid
vacation during each full year that this Agreement is in force. This period of
vacation shall accrue ratably throughout the year, but shall not be cumulative;
and in the event this Agreement is terminated for any reason other than as the
result of the failure or refusal of the Employee to perform the duties and
responsibilities of the Employee under the terms of this Agreement, the Employee
2
shall be paid for all accrued and unused vacation time during the year of this
Agreement during which the termination occurs.
D. MEDICAL INSURANCE. The Company shall provide at its expense a
policy of group medical insurance for the benefit of the Employee, and the
spouse and dependents of the Employee, if any, with an annual deductible of not
more than three hundred dollars ($300) per person per year, with co-insurance
not to exceed twenty percent (20%) of the first five thousand dollars ($5,000)
of covered expenses per year, and with an overall policy limit of not less than
one million dollars ($1,000,000) per family. The above terms are subject to
change based on change in deductibles and maximum out of pocket expenses
incurred updating or transferring said medical insurance policies.
E. EXPENSES. The Company will provide the Employee with such
facilities, equipment, and supplies as it deems necessary for the performance of
the Employee's duties. Unless provided by the Company, the Employee shall have
and maintain an automobile and a home telephone to be used in connection with
the Employee's duties under the terms of this Agreement, which shall be
maintained by the Employee and the cost of operating the Employee's personal
automobile in connection with the Employee's duties under this Agreement, shall
be fully reimbursed by the Company upon delivery of itemized vouchers thereof.
Any other expenses incurred by the Employee in connection with the performance
of the Employee's duties under this Agreement shall likewise be fully reimbursed
by the Company upon the presentation of itemized vouchers.
F. PROBATIONARY PERIOD. The Company shall provide the Employee
with the medical insurance described herein immediately upon beginning
employment.
4. TERMINATION. This Agreement shall remain in full force and
effect until terminated upon the occurrence of any of the events or conditions
described below.
A. The term of this Agreement shall automatically terminate
upon the death of the Employee or the cessation of business
operation of the Company.
B. The term of this Agreement may be terminated without notice
at the option of the Company upon the failure or refusal of the
Employee to perform the Employee's duties and responsibilities
under the terms of this Agreement; if the Employee is unable, as
result of any physical, mental, or emotional condition, to
perform the Employee's duties and responsibilities under the
terms of this Agreement for any consecutive period in excess of
thirty (30) days; if the Employee violates any of the terms of
this Agreement; or if in the sole judgement of the Company, or
upon notification by one or more of the customers of the Company
that, in its judgement, the Employee has failed to use the
Employee's best efforts in the performance of the duties and
responsibilities of the Employee as set forth in this Agreement,
has not complied with the work schedule
2
3
of the other rules or requirements of the Company, or has
conducted himself or herself in a manner that is detrimental to
the confidence of the Company's customers in the services of the
Company or the Employee or to the general reputation of the
Company.
C. The term of this Agreement shall be terminated at the
option of the Employee upon the failure of the Company to perform
its obligations under the terms of this Agreement if such failure
is not cured or corrected within a reasonable time after receipt
of written notice of such failure from the Employee.
D. The term of this Agreement shall be terminated upon the
mutual agreement of the Company and the Employee evidenced in
writing and signed by both parties.
E. The term of this Agreement may be terminated at the time of
either party after not less than fourteen (14) days' written
notice to the other party of the effective date of such
termination.
5. RECORDS. All files and records prepared or maintained by the
Employee in the performance of the duties and responsibilities of the Employee
under the terms of this Agreement, and all manuals, lists, books, and other
materials provided for the use of the Employee by the Company, shall be and
remain the property of the Company. Upon the termination of this Agreement for
any reason the Employee shall immediately deliver all such files, records, and
materials to the Company.
6. CONFLICTS OF INTEREST, CONFIDENTIALITY, NONCOMPETITION, AND
INTELLECTUAL PROPERTY.
A. In consideration of the rights acquired by the Employee under
the terms of this Agreement, including the training and experience to be
acquired by the Employee from the Company, the Employee agrees that during the
term of this agreement and for a period of three (3) years thereafter, the
Employee shall not engage directly or indirectly in any activity or business
transaction, for himself, herself, or for others, whether or not for profit
which may in any way result in a conflict of interest with the business of the
Company in the conduct of any business carried on by the Company at any time
during the term of this Agreement; nor shall the Employee become interested in
any way, directly or indirectly, with any business which sells or markets
products or services to, or does any other form of business with, the Company.
B. The Employee realizes that as a consequence of the performance
of the duties of the Employee under the terms of this Agreement, and the
involvement of the Employee with the business and customers of the Company, that
there will be disclosed to the Employee, and the Employee will otherwise become
aware of, certain information concerning matters affecting or relating to the
trade secrets and business operations of the Company, including, but not limited
to, operational procedures, coding guidelines, customer lists, pricing formulas,
sales and
3
4
marketing methods, and other information, the disclosure of which to any
competitor of the Company might give the competitor an advantage over the
Company in the conduct of its business or in the sale of its products and
services, or might otherwise be detrimental to the interests of the Company (the
"Confidential Information"). The Employee recognizes and acknowledges that the
Confidential Information is important material to the Company and must, at the
risk of grave damage to the Company and the operation of its business, be kept
strictly confidential. The Employee, therefore, covenants and agrees that the
Employee will not, at any time during the term of this Agreement or within three
(3) years thereafter, directly or indirectly, by act or omission, divulge,
disclose or communicate to anyone, in any manner whatsoever, any of the
Confidential Information. The Employee agrees, upon request by the Company, the
Employee will surrender to the Company any written or electronic record or copy
of any of the Confidential Information.
C. In consideration of the rights acquired by the Employees under
the terms of this Agreement, including the training and experience to be
acquired by the Employee for the Company, the Employee covenants and agrees that
the Employee will not any time during the term of this Agreement or for a period
of three (3) years after the termination or expiration of the term of this
Agreement for any reason, for himself, herself, or on behalf of any other
person, partnership or corporation, engage in, perform or become interested in
providing, selling, or marketing, directly or indirectly, products or services
similar in design, concept or purpose to the products or services offered by the
Company at any time during the term of this Agreement, nor will the Employee,
during such time, solicit, attempt to solicit, or accept employment or other
means of compensation for the performance, sale, or marketing of products or
services similar in design, concept or purpose to the products or services
offered by the Company at any time during the term of this Agreement, from any
customer of the Company or any other provider of similar or competing products
or services doing business within the Continental United States.
D. The Employee is not to disclose the terms of the compensation
and benefits payable to the Employee under the terms of this Agreement with any
other employee of the Company, or with anyone not associated with the Company,
without the prior written consent of the President of the Company, except that
the Employee may disclose any such information to the attorney, accountant, or
any confidential advisor of the Employee.
E. The Employee hereby sells, assigns, and transfers to the
Company all of the Employee's right, title, and interest in and to any and all
invention, discoveries, concepts, and ideas concerning the products, services,
or activities of the Company developed by or with which the Employee becomes
acquainted as a result of the employment of the Employee under the terms of this
Agreement of within three (3) years thereafter, whether or not protection under
the patent or copyright laws is available, including, without limitation, all
processes, methods, formulas, and techniques, as well as any and all
improvements thereof or know-how related thereto, and whether conceived or
developed by the Employee alone or in conjunction with others and arising out of
the activities of the Employee while in the employment of the Company
4
5
(the "Intellectual Property"). The Employee agrees to disclose to the officers
of the Company, as promptly as reasonably possible following the conception or
development of the Intellectual Property, all of the details known or available
to the Employee concerning the Intellectual Property, and the Employee agrees
without further remuneration of any kind, to assign and transfer to the Company
any and all patents, copyrights, trademarks, tradenames, and applications
therefor in any way related to the Intellectual Property, and the Employee
agrees to do any other things necessary to vest all right, title, and interest
of the Employee in and to the Intellectual Property in the Company.
F. The breach of any of these restrictions shall constitute cause
for the immediate termination of this Agreement by the Company, and for any
breach of these restrictions by the Employee the Company shall have and be
entitled to take any and all action and remedies available at law or in equity,
specifically including the right to obtain a temporary and permanent restraining
order and/or injunction to prevent or prohibit any violation of these
restrictions by the Employee.
G. The Employee recognizes and acknowledges that these
restrictions are reasonable and necessary to protect the legitimate business
interests of the Company, that, in the event of any breach of these restrictions
by the Employee, the Company would be permanently and irreparably damaged and
that the value or extent of such damages would be difficult or impossible to
establish or determine, and that these restrictions have been expressly
bargained for and given in consideration of the Employee's employment by the
Company under the terms of this Agreement, and the execution of this Agreement
by the Company; and the Employee agrees that, in any action to enforce these
restrictions by the Company, including any request for injunctive or other
extraordinary relief, the Employee will not offer as a defense to such action a
claim that the Company has an adequate remedy at law.
7. REMEDIES. In addition to any remedies available to either
party to this Agreement under the terms of this Agreement under the terms of
this Agreement, at law or in equity, any party who defaults in its obligations
under this Agreement, or who breaches this Agreement in any manner, shall, in
addition to any other costs or damages, pay to or reimburse the other party for
all costs and expenses incurred in connection with the enforcement of this
Agreement, including court costs and attorney's fees.
8. BINDING EFFECT. This Agreement shall be binding upon and
enforceable by the parties and their respective heirs, successors, legal
representatives, and permitted assigns.
9. AMENDMENT. This Agreement may not be amended except by the
mutual agreement of the Company and the Employee evidenced in writing and signed
by both parties.
10. WAIVER. No delay or failure on the part of any party to this
Agreement to exercise any right or remedy available under the terms of this
Agreement or at law or in equity
5
6
shall constitute a waiver of any such rights or remedies, or of any other rights
or remedies. No waiver of any of the terms or conditions of this Agreement shall
be valid or effective unless made in writing and signed by the party making a
waiver. The waiver of any breach, term, or condition of this Agreement by any
party shall not be deemed to be a waiver of any other or further breach of such
term or condition, or of any other term or condition of this Agreement.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
12. GOVERNING LAW. The terms, conditions, and provisions of this
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties have executed and delivered this
agreement as of the date and year first above written.
_____________________________
EMPLOYEE
_____________________________
BIRMAN & ASSOCIATES, INC.
SUBSCRIBED AND SWORN to before me, this _______ day of_______,
19____.
_____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________________
6
7
COVENANT FOR NON-COMPETITION
I,_______________________ , covenant with Birman & Associates,
Inc., that I will not directly, indirectly, immediately, solely or jointly as
principal, agent, manager or otherwise, be concerned or interested in the same
character of business, heretofore carried on with said Birman & Associates,
Inc., within the continental United States for a period of three (3) years from
the date hereof, nor permit it to be done in my name.
In testimony with hereof, I have hereunto set my signature, this
the _________ day of ____________________ , 19 ____.
_____________________________
EMPLOYEE
_____________________________
BIRMAN & ASSOCIATES, INC.
SUBSCRIBED AND SWORN to before me, this _______ day of_______,
19____.
_____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________________