EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of September
19, 1996 between HealthDesk Corporation, a California corporation (the
"Company"), and Xxxxx Xxxx Xxxx, MD.
In consideration of the mutual covenants and conditions set forth
herein, the parties hereby agree as follows:
1. Employment. The Company has employed Xxxxx Xxxx Xxxx, MD in the capacity of
Executive Vice President, Strategic Development since June 17, 1996. Xxxxx Xxxx
Xxxx, MD accepts such employment and agrees to perform such services as are
customary to such office and as shall from time to time be assigned to her by
the President and Chief Executive Officer.
2. Term. The initial term of this agreement shall be for a period of 15 months,
commencing on September 19, 1996 (the "Commencement Date") and shall be
automatically extended for each successive one year term, unless earlier
terminated as provided in Section 5. Xxxxx Xxxx Xxxx, MD's employment will be on
a full-time basis requiring the devotion of such amount of her productive time
as is necessary for the efficient operation of the business of the Company.
3. Compensation and Benefits.
3.1 Salary. For the performance of Xxxxx Xxxx Xxxx, MD's duties
hereunder, the Company shall pay Xxxxx Xxxx Xxxx, MD an annual salary of
$140,000 payable (less required withholdings) no less frequently than twice
monthly commencing January 1, 1997.
3.2 Bonus. The Company shall also pay Xxxxx Xxxx Xxxx, MD a cash bonus
of $80, 000 which bonus shall be payable on February 1, 1997. Commencing in
calendar year, 1997 Xxxxx Xxxx Xxxx, MD will be eligible to participate in a
Short Term Incentive Plan. Ninety (90) days prior to the commencement of the
employment year, the Board of Directors and Xxxxx Xxxx Xxxx, MD will establish a
mutually acceptable bonus plan, which plan will provide Xxxxx Xxxx Xxxx, MD with
appropriate incentives and opportunity to earn bonus amounts comparable to those
available to top executives officers of similar companies and may base the
incentive award on the full year pre-tax earnings of the company.
3.3 Benefits. Xxxxx Xxxx Xxxx, MD shall be entitled to such medical,
disability and life insurance coverage and such vacation, sick leave and holiday
benefits, if any, as are made available to the Company's executive personnel,
all in accordance with the Company's benefits program in effect from time to
time.
3.4 Reimbursement of Expenses. Xxxxx Xxxx Xxxx, MD shall be entitled to
be reimbursed for all reasonable expenses, including but not limited to expenses
for travel, meals and entertainment, incurred by Xxxxx Xxxx Xxxx, MD in
connection with and reasonably related to the furtherance of the Company's
business.
3.5 Annual Review. On each successive annual term of the Commencement
Date, the Chief Executive Officer will review Xxxxx Xxxx Xxxx, MD's performance
and compensation hereunder (including salary, bonus and stock options and/or
other equity incentives) and will consider whether to increase such
compensation, but will not have authority, as the result of such review to
decrease any portion of such compensation without the written consent of Xxxxx
Xxxx Xxxx, MD.
4. Change of Control. In the event of a Change of Control of the Company (as
defined below), all options then granted to Xxxxx Xxxx Xxxx, MD which are
unvested at the date of the Change of Control will be immediately vested. In
addition, in the event of a termination of Xxxxx Xxxx Xxxx, MD's employment
hereunder for any reason following a Change of Control, the Company will
promptly pay Xxxxx Xxxx Xxxx, MD, in addition to the amounts required under
Section 5.2(a), a lump sum severance amount equal to one-half of the then
applicable annual salary, plus a pro-rata, (or if not calculable based on prior
year) portion of the incentive. This shall be in lieu of any amounts payable
under 5.2(b). For calendar year 1997, such a calculation will be based upon an
annual bonus of $40,000 since no bonus was paid in 1996.
As used herein, a "Change of Control" of the Company shall be deemed to
have occurred:
(a) Upon the consummation, in one transaction or a series of
transactions, of the sale or other transfer of voting power (including voting
power exercisable on a contingent or deferred basis as well as immediately
exercisable voting power) representing effective control of the Company to a
person or group of related persons who, on the date of this Agreement, does not
have effective voting control of the Company, whether such sale or transfer
results from a tender offer or otherwise; or
(b) Upon the consummation of a merger or consolidation in which the
Company is a constituent corporation and in which the Company's shareholders
immediately prior thereto will beneficially own, immediately thereafter,
securities of the Company or any surviving or new corporation resulting
therefrom having less than a majority of the voting power of the company or any
such surviving or new corporation; or
(c) Upon the consummation of a sale, lease, exchange or other transfer
or disposition by the Company of all or substantially all its assets to any
person or group or related persons; or
(d) Upon an election or appointment of one or more directors as the
result of which those persons serving as directors of the Company on the date of
this Agreement (the "Current Directors") and/or their Successors (as defined
below) will not constitute a majority of the Board of Directors of the Company.
As used herein, a "Successor" means a director whose election by the company's
shareholders or whose appointment by the directors then serving the Company has
been approved by a vote of the directors then serving the Company in which at
least two-thirds of those directors who are current Directors and previously
qualified Successors voted for approval.
5. Termination.
5.1 Termination Events. The employment hereunder will terminate upon
the occurrence of any of the following events:
(a) Xxxxx Xxxx Xxxx, MD dies;
(b) The Company, by written notice to Xxxxx Xxxx Xxxx, MD or
her personal representative, discharges Xxxxx Xxxx Xxxx, MD due to the inability
to perform the duties assigned to her hereunder for a continuous period
exceeding 120 days by reason of injury, physical or mental illness or other
disability, which condition has been certified by a mutually agreed upon
physician; provided, however, that prior to discharging Xxxxx Xxxx Xxxx, MD due
to such disability, the Company shall give a written statement of findings to
Xxxxx Xxxx Xxxx, MD or her personal representative setting forth specifically
the nature of the disability and the resulting performance failures, and Xxxxx
Xxxx Xxxx, MD shall have a period of ten (10) days thereafter to respond in
writing to the Board of Directors' findings;
(c) Xxxxx Xxxx Xxxx, MD is discharged by the Board of
Directors of the Company for cause. As used in this Agreement, the term "cause"
means exclusively Xxxxx Xxxx Xxxx, MD's conviction of (or pleading guilty or
nolo contendre to) a felony or any misdemeanor involving dishonesty or moral
turpitude; provided, however, that prior to discharging Xxxxx Xxxx Xxxx, MD for
cause, the Company shall give a written statement of findings to Xxxxx Xxxx
Xxxx, MD setting forth specifically the grounds on which cause is based, and
Xxxxx Xxxx Xxxx, MD shall have a period of ten (10) days thereafter to respond
in writing to the Board of Directors' findings;
(d) Xxxxx Xxxx Xxxx, MD is discharged by the Board of
Directors of the Company without cause, which the Company may do at any time,
with at least 30 days advance written notice, or if Xxxxx Xxxx Xxxx, MD's
employment agreement is not renewed;
(e) Xxxxx Xxxx Xxxx, MD voluntarily terminates her employment
due to either (i) a default by the Company in the performance of any of its
obligations hereunder, or (ii) an Adverse Change in Duties (as defined below),
which default or Adverse Change in Duties remains unremedied by the Company for
a period of ten days following its receipt of written notice thereof from Xxxxx
Xxxx Xxxx, MD; or
(f) Xxxxx Xxxx Xxxx, MD voluntarily terminates her employment
for any reason other than the Company's default or an Adverse Change in Duties,
which Xxxxx Xxxx Xxxx, MD may do at any time with at least 30 days advance
notice.
As used herein, "Adverse Change in Duties" means an action or series of
actions taken by the Company, without Xxxxx Xxxx Xxxx, MD's prior written
consent, which results in:
(1) A change in Xxxxx Xxxx Xxxx, MD's reporting responsibilities,
titles, job responsibilities or offices which, in Xxxxx Xxxx Xxxx, MD's
reasonable judgment, results in a diminution of her status, control, or
authority; or
(2) The assignment to Xxxxx Xxxx Xxxx, MD of any positions, duties or
responsibilities which, in Xxxxx Xxxx Xxxx, MD's reasonable judgment, are
inconsistent with Xxxxx Xxxx Xxxx, MD's positions, duties and responsibilities
or status with the Company or which require Xxxxx Xxxx Xxxx, MD to travel more
than previously required; or
(3) A requirement by the Company that to Xxxxx Xxxx Xxxx, MD be based
or perform her duties anywhere other than (i) at the Company's corporate office
location on the date of this Agreement, or (ii) if the Company's corporate
office location is moved after the date of this Agreement, at a new location
that is no more than 30 miles from such prior location; or
(4) A failure by the Company (i) to continue in effect any benefit,
whether or not qualified, or other compensation, bonus or incentive plan in
effect on the date of this Agreement or subsequently adopted or (ii) to continue
Xxxxx Xxxx Xxxx, MD's participation in such benefits or plans at the same level
or to the same extent as on the Commencement Date or, with respect to
subsequently adopted benefits or plans, on the date of initial implementation
thereof, or (iii) to provide for Xxxxx Xxxx Xxxx, MD's participation in any
newly adopted benefits or plans at a level or to an extent commensurate, in
Xxxxx Xxxx Xxxx, MD's judgment, with that of other executives of the Company.
5.2 Effects of Termination.
(a) Upon termination of Xxxxx Xxxx Xxxx, MD's employment hereunder for
any reason, the Company will, within 3 days, pay Xxxxx Xxxx Xxxx, MD (i) all
compensation owed to Xxxxx Xxxx Xxxx, MD and unpaid through the date of
termination (including, without limitation, salary and employee expenses
reimbursements and accrued P.T.O), plus, at a minimum, a pro rata portion of the
maximum amount of bonus payable for the employment year during which the
termination occurs, based on the percentage of the year during which Xxxxx Xxxx
Xxxx, MD was employed before such termination, if not a full year, based on the
prior year's bonus payment. For calendar year 1997, such a pro rata calculation
will be based upon an annual bonus of $40,000 since no bonus was paid in 1996.
(b) In addition, if the employment is terminated under Sections 5.1
(a), (b), (d), or (e), the Company shall also pay Xxxxx Xxxx Xxxx, MD
immediately upon such termination of employment, a lump sum severance amount
equal to one-half of the then applicable annual salary, plus a pro-rata, (or if
not calculable based on prior year) portion of the incentive. For calendar year
1997, such a calculation will be based upon an annual bonus of $40,000 since no
bonus was paid in 1996..
(c) Upon termination of Xxxxx Xxxx Xxxx, MD's employment for any
reason, Xxxxx Xxxx Xxxx, MD agrees that for the one (1) year period following
the Termination Event:
(i) Xxxxx Xxxx Xxxx, MD will not directly or indirectly
encourage or solicit, or attempt to encourage or solicit, any individual to
leave the Company's employ for any reason or interfere in any other manner with
the employment relationships at the time existing between the Company and its
current or prospective employees;
(ii) Xxxxx Xxxx Xxxx, MD will not induce or attempt to induce
any customer, supplier, distributor, licensee or other business relation of the
Company to cease doing business with the Company or in any way interfere with
the existing business relationship between any such customer, supplier,
distributor, licensee or other business relation and the Company.
(d) Xxxxx Xxxx Xxxx, MD agrees that for six (6) months following the
Termination Event she:
(i) Xxxxx Xxxx Xxxx, MD will not directly or indirectly,
whether for her own account or as an individual, employee, director, consultant
or advisor, provide services to any person, firm corporation or other business
enterprise which is involved primarily in the design, development or marketing
of software for the healthcare consumer and/or providers, specifically software
that enables an end-user to track medical records and health related activities,
learn about health topics and more freely exchange health and medical
information and which is located geographically in an area where the Company
maintains its business activities, unless you obtain the prior written consent
of the Board of Directors.
Xxxxx Xxxx Xxxx, MD acknowledges that monetary damages may not be
sufficient to compensate the Company for any economic loss which may be incurred
by reason of breach of the foregoing restrictive covenants. Accordingly, in the
event of any such breach , the Company shall, in addition to any remedies
available to the Company at law, be entitled to obtain equitable relief in the
form of an injunction precluding Xxxxx Xxxx Xxxx, MD from continuing to engage
in such breach.
If any restriction set forth in this paragraph is held to be
unreasonable, then Xxxxx Xxxx Xxxx, MD and the Company agree, and hereby submit,
to the reduction and limitation of such prohibition to such area or period as
shall be deemed reasonable.
6. General Provisions.
6.1 Assignment. Neither party may assign or delegate any of her or its
rights or obligations under this Agreement without the prior written consent of
the other party, except laws of succession in item (A).
6.2 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements between the parties relating to such subject matter.
6.3 Modifications. This Agreement may be changed or modified only by an
agreement in writing signed by both parties hereto.
6.4 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Company and its successors and
assigns and Xxxxx Xxxx Xxxx, MD and Xxxxx Xxxx Xxxx, MD's legal representatives,
heirs, legatees, distributees, assigns and transferees by operation of law,
whether or not any such person shall have become a party to this Agreement and
have agreed in writing to join and be bound by the terms and conditions hereof.
6.5 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California as such laws are applied
to agreements among California residents entered into and performed entirely
within California.
6.6 Severability. If any provision of the Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect.
6.7 Further Assurances. The parties will execute such further
instruments and take such further actions as may be reasonably necessary to
carry out the intent of this Agreement.
6.8 Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed received by the recipient when
delivered personally or, if mailed, five (5) days after the date of deposit in
the United States mail, certified or registered, postage prepaid and addressed,
in the case of the Company, to 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000, and in case of Xxxxx Xxxx Xxxx, MD, to the address shown for
Xxxxx Xxxx Xxxx, MD on the signature page hereof, or to such other address as
either party may later specify by at least ten (10) days advance written notice
delivered to the other party in accordance herewith.
6.9 Indemnification. The company will indemnify Xxxxx Xxxx Xxxx, MD in
her capacity as an executive officer, to the maximum amount permitted by law.
6.10 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of that provision, nor prevent
that party thereafter from enforcing that provision or any other provision of
this Agreement.
6.11 Enforcement. If any action at law or in equity or any arbitration
is brought to enforce or interpret the terms of this Agreement or to protect the
rights obtained hereunder, the prevailing party shall be entitled to recover its
reasonable attorneys' fees, costs and other expenses in addition to any other
relief to which it may be entitled.
6.12 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
6.13 Reimbursement of Counsel Costs. Immediately upon commencement of
employment hereunder, the Company will reimburse Xxxxx Xxxx Xxxx, MD for all
reasonable attorney's fees incurred by Xxxxx Xxxx Xxxx, MD in connection with
the negotiation and preparation of this Agreement.
IN WITNESS WHEREOF, the Company and Xxxxx Xxxx Xxxx, MD have executed this
Agreement effective as of the day and year first above written.
COMPANY XXXXX XXXX XXXX, MD
HealthDesk Corporation, -----------------------------
a California corporation Xxxxx Xxxx Xxxx, MD
By: Address
Name: 0000 Xxxxxxx Xxxxxx
Title: Xxxx Xxxx, XX 00000
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