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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
(FULL TIME)
THIS AGREEMENT is made and entered into as of the 1st day of
November , 1993, by and between BIRMAN & ASSOCIATES, INC., a Tennessee
corporation (the "Company"), and BILL BARENKAMP , a resident of Tennessee (the
"Employee").
1. POSITION AND TERM OF EMPLOYMENT. The Company employs the
Employee as Director of Marketing 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
Director of Marketing for the Company. The Employee shall have general and
active supervision over the Marketing and Operations for 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 understands that proper performance of Employee's duties will require
continuous special training and the Company has incurred and will incur expense
in Employee's training.
3. COMPENSATION.
A. SALARY. For the services to be performed by the Employee
hereunder, the Company shall pay the Employee a salary of Dollars
($ ) 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 fiscal year, which may be taken at any time and upon prior
approval of the Company. This period of vacation shall accrue ratably throughout
the year, but shall not be cumulative.
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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. During the period of employment, the Employee will
be reimbursed for reasonable expenses in accordance with the general policy of
the Company as adopted by the Company's Board of Directors, from time to time,
or, in the absence of such formal policy, in accordance with Company's practice.
F. PROBATIONARY PERIOD. The Company shall provide the Employee
with the medical insurance described herein only after the Employee has
completed ninety (90) days of consecutive service for the Company.
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.
The Company may terminate this Agreement for cause without prior
notice because of the Employee's fraud, embezzlement or material willful
misconduct against the Company, disability or death. The term "disability" as
used in the preceding sentence shall mean the Employee shall have become
permanently disabled due to ill health, physical or mental impairment or for
other causes which result in Employee's being unable to substantially perform
Employee's duties under this Agreement for thirty (30) consecutive days.
Either party may terminate this Agreement without prior notice
based upon material breach of the terms of this Agreement by the other.
5. COVENANTS REGARDING NON-COMPETITION AND NON- SOLICITATION.
Employee hereby expressly covenants and agrees that Employee will not, directly
or indirectly for any person, persons, partnership, or corporation engaged in
the offer or sale of products or services of the same or similar kind as those
offered or sold by the Company at any time during the term of employment
hereunder nor for a period of one (1) year following the termination of
employment hereunder, whether such termination is voluntary or involuntary: (i)
be engaged within the Territory (as defined in Paragraph 9 below) in any type of
activity which poses a conflict of interest or is in competition with the
Company or perform services similar to those performed for the Company
hereunder; (ii) induce, persuade, or encourage any person who was employed by
the Company at any time during the term of Employee's employment hereunder, to
terminate such employee's position with the Company.
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Employee represents that the provisions of this Paragraph 3 will
not prevent Employee from earning a livelihood and that the duration,
geographical coverage and general terms of this Paragraph 3 are reasonable and
necessary to protect the interest of the Company.
6. NON-DISCLOSURE AND CONFIDENTIALITY COVENANT. Employee hereby
covenants and agrees that Employee will not at any time, during the term of this
Agreement nor following the termination of employment hereunder, whether such
termination is voluntary or involuntary, for or on behalf of Employee or any
person, persons, partnership or corporation (except the Company) directly or
indirectly use for Employee's own benefit or disclose to any other party any
confidential information. "Confidential Information" as used herein means
information relating to the Company's business which derives economic value,
actual or potential, from not being generally known to other persons and is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy or confidentiality, including, but not limited to, any technical or
nontechnical data, formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, or list of actual or potential
customers or suppliers. Confidential information does not include information
which is not a trade secret three (3) years after termination of Employee's
employment with the Company.
7. TERRITORY. For the purpose of this Agreement, the "Territory"
shall refer to the geographic area consisting of a Three Hundred Fifty (350)
mile radius from the city limits of the facility in which the Employee works.
8. CONTINUED EMPLOYMENT. Nothing in this Agreement is intended,
and shall not be construed, as the creation of any contractual right to, or
obligation of, continued employment on the part of either the Company or the
Employee.
9. RELATIONSHIP BETWEEN THE PARTIES. The relationship between
Company and Employee is that of an employer and an employee. Nothing in this
Agreement shall be construed to give the Employee any interest in the tangible
or intangible assets of the Company.
10. ENFORCEMENT. The Employee agrees and acknowledges that any
violation or threat of violation of this Agreement will result in irreparable
harm to the Company for which damages may be an inadequate remedy. Therefore, in
addition to its respective rights and remedies otherwise available at law, the
Company shall be entitled to equitable relief, including both temporary and
permanent injunctions, to restrain such violation or threat thereof and to such
other equitable relief as a court may deem proper under the circumstances.
11. NOTICE. Notice shall be deemed delivered when delivered in
person or, when mailed, when deposited in the United States mails, correctly
addressed and postage prepaid. Notice to the Company shall be delivered to the
Dr. David N. Birman, 502 Gould Drive, Cookeville, Tennessee 38501. Notice to
Employee shall be delivered at that same address.
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Either or both parties can change the address to which notice is to be given by
mailing or delivering written notice of such change of address to the other
party.
12. MISCELLANEOUS.
A. BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and upon their respective executors, administrators, successors,
and assigns.
B. SEVERABILITY. Each of the parties hereto agrees that this
Agreement is severable and if, for any reason, any portion or paragraph of this
Agreement shall be declared void or unenforceable, it shall affect only such
particular portion or paragraph of this Agreement and the balance of the
Agreement shall remain in full force and effect and be binding upon the parties
hereto.
C. WAIVER. Any waiver by the Company of a breach of any provision
of this Agreement by Employee shall not operate or be construed as a waiver of
any such breach of the same or any other provision by Employee.
D. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
of the parties as to the subject matter hereof and supersedes any previous
understandings, either oral or written, between the parties.
E. GOVERNING LAW. This Agreement shall be governed by,
interpreted and construed in accordance with the laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day of , 19 .
___________________________
EMPLOYEE
SUBSCRIBED AND SWORN to before me, this ________ day of
_____________________________, 19 ____.
___________________________
NOTARY PUBLIC
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BIRMAN & ASSOCIATES, INC.
________________________________________
SUBSCRIBED AND SWORN to before me, this ________ day of
_____________________________, 19 ____.
___________________________
NOTARY PUBLIC
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