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Exhibit 10.5
EMPLOYMENT AGREEMENT
AGREEMENT is made as of the date of the Initial Public Offering of
iPhysician Net Inc., by and between IPHYSICIAN NET INC., a Delaware
corporation (the "Company") and XXXXX X. XXXXXXXX (the "Employee").
The parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts such employment upon the terms and conditions set forth herein.
The Employee shall perform such services, at such reasonable times and places
for Company, and such of Company's affiliated, related or subsidiary companies
as may, from time to time, be designated by Company's Board of Directors.
2. TERM. The term of this Agreement shall be thirty-six (36) months,
commencing the date of this Agreement [unless sooner terminated in accordance
with the provisions set forth herein]. If not so terminated and the Employee is
able, ready and willing to perform the duties required under this Agreement and
continues in the full-time employment of the Company, this Agreement may be
extended for successive one-year periods.
3. COMPENSATION AND OTHER BENEFITS.
A. Compensation.
(1) Effective January 1, 2000, the annual base salary of the
Employee shall be Two Hundred Sixty-Two Thousand Five Hundred dollars
($262,500). Such base remuneration will be paid in accordance with the
payroll policy of the Company.
(2) Compensation will be reviewed once per calendar year by
the Compensation Committee of the Board of Directors after the end of the
year or on special request of management or under special circumstances at
other times. Such recommendations of the Compensation Committee will be
subject to approval of the Board of Directors.
(3) The Employee will be entitled to participate in any
management incentive programs as and when such are in place, and to
participate in other Company benefits commensurate with the Employee's
position and responsibilities.
(4) If this Agreement is terminated without cause or there is
a significant downward change in responsibilities and Employee elects not
to continue in that role, Employee shall be paid a severance payment equal
to six (6) months base salary at the time of termination. In the event of
change of control, with or without a significant downward change in
responsibilities and Employee elects not to continue in that role,
Employee shall be paid a severance payment equal to twelve (12) months
base salary at the time of termination Severance
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shall include both base salary and continued vesting of options for that
time period.
B. Other Benefits.
(1) The Employee shall be reimbursed for the legitimate
reasonable business expenses in accordance with the standard policy of
Company.
(2) The Employee shall be entitled each year, and at such
reasonable times as the Company shall approve, to a vacation, the length
of which shall be in accordance with the standard policy of Company, or as
recommended by the Compensation Committee and approved by the Board of
Directors, during which time his compensation shall be paid in full.
4. DUTIES OF EMPLOYEE. The Employee shall serve Company full time as its
Chairman & Chief Executive Officer and shall perform such duties not
inconsistent with such position and as shall from time to time be designated by
the Board of Directors of Company, and shall devote his full-time attention,
knowledge and skills to the business of Company.
5. TERMINATION. Notwithstanding any other provision hereof, Company may
terminate Employee's employment under this Agreement at any time with or without
cause. The termination shall be evidenced by written notice thereof to the
Employee, which shall specify the cause for termination. "Cause" for Employee's
termination of employment will exist at any time after the happening of one or
more of the following events, in each case as determined in good faith by the
Company's Board of Directors.
A. Employee's gross negligence or willful misconduct in performance
of his duties hereunder where such gross negligence or willful misconduct
has resulted or is likely to result in substantial and material damage to
the Company or any of its subsidiaries;
B. Employee's repeated or unjustified absence from the Company;
C. The commission of any act of fraud by Employee with respect to
the Company;
D. Employee's conviction of a felony or a crime involving moral
turpitude causing material harm to the standing and reputation of the
Company; or
E. Employee's incurable material breach of any element of the
Company's Confidentiality Agreement, including without limitation,
Employee's theft or other misappropriation of the Company's proprietary
information.
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6. NON-COMPETE. Employee agrees that during the term of employment with
the Company, and for a period of one (1) year commencing on the date Employee
ceases for any reason whatsoever to be an Employee of the Company, the Employee
shall not, in the United States or any other country where the Company is
conducting business or has clients at the time of termination of employment,
either directly or indirectly compete with the Company or divert or attempt to
take away any of the customers or business of the Company and/or induce or
attempt to induce an employee of the Company or any other individual or entity
to do the same.
7. MODIFICATION OF AGREEMENT. This Agreement supercedes any and all
earlier Employment Agreements made between the Company and the Employee, and in
the case of any conflict of terms contained in this Agreement, and any other
prior Agreement, the terms of this Agreement shall prevail. No waiver or
modification of this Agreement shall be valid unless it is in writing and duly
executed by both parties.
8. NOTICE. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, or mailed by first class mail, to the
Employee or Company at 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, or such other address or to the attention of such other person as
the recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement will be deemed to have been given when so
delivered or mailed.
9. COUNTERPARTS. This Agreement may be executed on separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
10. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Employee, the Company and their
respective heirs, personal representatives, successors and assigns, except that
the Employee may not assign any of its rights or obligations under this
Agreement except to the extend and in the manner expressly permitted hereby.
11. CHOICE OF LAW. This Agreement shall be governed by the laws of the
State of Arizona.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
IPHYSICIAN NET INC. EMPLOYEE:
By:_________________________________ _______________________________
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Title:_______________________________
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