EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of October 11,
2004, by and between American CareSource Holdings, Inc., a Delaware corporation
(the "Company"), a wholly-owned subsidiary of Patient Infosystems, Inc, and
Xxxxx Xxxxxxxxxxx ("Employee").
In consideration of the mutual covenants and conditions set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Employment. The Company hereby employs Employee in the capacity of President
and Chief Executive Officer. Employee 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 him by the President or CEO of the Company.
2. Term. The employment hereunder shall be for a period commencing on October
11, 2004 (the "Commencement Date") and ending on October 10, 2005 (the "Initial
Term"), unless earlier terminated as provided in Section 5. This Agreement shall
be automatically renewed for successive one-year periods upon the expiration of
the Initial Term unless earlier terminated as provided in Section 5. Employee's
employment will be on a full-time business basis requiring the devotion of
substantially all of his productive business time for the efficient and
successful operation of the business of the Company.
3. Compensation and Benefits
3.1 No Salary. For the performance of Employee's duties hereunder, the
Company shall pay Employee no salary through July 31, 2005. Thereafter, Employee
shall be entitled to receive an annual salary in the amount of $250,000 (the
"Base Compensation").
3.2 Bonus Plan. Employee shall be entitled to a bonus determined at the
sole discretion of the Board of Directors of the Company or the Compensation
Committee thereof pursuant to a bonus compensation plan provided in written
detail to Employee within a reasonable time prior to the beginning of the period
of time from which the performance of the Employee would be evaluated and
measured for such bonus.
3.3 Stock Options.
(a) From time to time the Company may grant to Employee options
under the Company's Stock Option Plan to purchase shares of the Company's common
stock at a stated exercise price per share. Any options granted will vest and be
exercisable in accordance with a Stock Option Agreement to be executed pursuant
to the Company's Stock Option Plan.
(b) Effective on the date of this Agreement, the Company shall grant
to Employee an option under its Stock Option Plan to purchase 550,000 shares of
Common Stock vesting to the extent of one-third of such amount 12 months from
the date hereof and 1/36 per month thereafter.
(c) In addition, Employee shall be granted options under the Plan to
purchase 100,000 shares of Common Stock of the Company with 20% vesting one year
from the date hereof and the remainder under the same vesting and other
conditions as other Company employees.
(d) Employee shall receive a grant of options to purchase 100,000
shares of Common Stock of PATY for an exercise price equal to the fair market
value on the date of the grant under PATY's Stock Option Plan, vesting in
accordance with the vesting schedule generally available to senior executives.
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3.4 Benefits. Employee shall be entitled to such medical, disability and
life insurance coverage and such vacation, sick leave and holiday benefits, if
any, and any other benefits as are made available to the Company's personnel,
all in accordance with the Company's benefits program in effect from time to
time. The Employee is responsible for paying the employee's portion of the
benefit costs. The benefits provided to Employee under this Section 3.4 shall
terminate 60 days after a Termination Event pursuant to Section 5 hereof.
3.5 Reimbursement of Expenses. Employee shall be entitled to be reimbursed
for all reasonable expenses, including but not limited to expenses for travel,
meals and entertainment, incurred by Employee in connection with and reasonably
related to the furtherance of the Company's business. Employee shall submit
expense reports and receipts documenting the expenses incurred in accordance
with Company policy.
4. Change of Control. In the event of a Change of Control of the Company
(as defined below), all options and other equity incentives then granted to
Employee, if any, which are unvested at the date of the Change of Control shall
immediately vest and be exercisable.
In addition, in lieu of the provisions of Section 5.2(b), in the
event of a termination of Employee's employment hereunder by the Company with or
without Cause, or by Employee with or without Good Reason (as defined below),
within 12 months following a Change of Control, the Company will promptly pay
Employee, in lieu of the amounts required under Section 5.2(b) and in addition
to the amounts required under Section 5.2(a), a severance amount, payable in a
lump sum immediately upon such termination of employment, equal to six (6)
months base compensation.
As used herein, a "Change of Control" of the Company shall mean any
of the following: (i) the acquisition by any person (individual, entity or
group) of direct or beneficial ownership of more than 50% of the then
outstanding shares of the Company and, for this purpose, the terms "person" and
"beneficial ownership" shall have the meanings provided in Section 13(d) or
14(d) of the Securities Exchange Act of 1934 or related rules promulgated by the
Securities and Exchange Commission; (ii) the commencement of or public
announcement of an intention to make a tender or exchange offer for more than
50% of the then outstanding Shares of the common stock of the Company; (iii) a
sale of all or substantially all of the assets of the Company; or (iv) the Board
of Directors of the Company, in its sole and absolute discretion, determines
that there has been a sufficient change in the stock ownership of the Company to
constitute a change in control of the Company. Notwithstanding the foregoing,
the following acquisitions shall not constitute a "Change of Control": (1) any
spinoff or dividend distribution transaction separating the Company from its
parent; (2) any acquisition by the Company; or (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company.
5. Termination
5.1 Termination Events. The employment hereunder will terminate upon the
occurrence of any of the following events ("the Termination Event"):
(a) Employee dies, in which case the Company shall continue to pay
the Base Compensation to the estate of the Employee for a period of ninety (90)
days after such death;
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(b) The Company, by written notice to Employee or his personal
representative, discharges Employee due to the inability to continue to perform
the duties previously assigned to him prior to such injury or disability
hereunder for a continuous period exceeding 180 days by reason of injury,
physical or mental illness or other disability, which condition has been
certified by a physician acceptable to the Company; provided, however, that
prior to discharging Employee due to such disability, the Company shall give a
written statement of findings to Employee or his personal representative setting
forth specifically the nature of the disability and the resulting performance
failures, and Employee shall have a period of thirty (30) days thereafter to
respond in writing to the Company's findings, whereupon the Company shall
conduct a reasonable and fair hearing with the Employee and any supporting
witnesses and evidence for the Employee to reach a final determination;
(c) Employee is discharged by the Company for "Cause". As used in
this Agreement, the term "Cause" shall mean:
(i) Employee's final and unappealed conviction of (or pleading
guilty or "nolo contendere" to) any felony or a misdemeanor involving dishonesty
or moral turpitude; provided, however, that prior to discharging Employee for
Cause, the Company shall give a written statement of findings to Employee
setting forth specifically the grounds on which Cause is based, and Employee
shall have a period of ten (10) days thereafter to respond in writing to the
Company's findings; or
(ii) The willful and continued failure of Employee to
substantially perform his duties with the Company (other than any such failure
resulting from illness or disability) after written demand of no less than ten
(10) days for substantial performance is requested by the Company, which demand
specifically identifies the manner in which it is claimed Employee has not
substantially performed his duties, or (b) Employee is willfully and
continuously engaged in material misconduct which has, or would reasonably be
expected to have, a direct and material adverse monetary effect on the Company.
For purposes of this Section 5, no act or failure to act on Employee's part
shall be considered "willful" if done, or omitted to be done, by Employee in
good faith and with reasonable belief that Employee's action or omission was in,
or not opposed to, the best interest of the Company. No termination shall be
effected for "Cause" unless Employee has been provided with specific written
information as to the acts or omissions which form the basis of the allegation
of for "Cause", and Employee has had an opportunity to be heard, with counsel if
he so desired, before the Company determines, by majority vote, in good faith,
that Employee was guilty of conduct constituting for "Cause" as herein defined,
specifying the particulars thereof in detail.
(d) Employee is discharged by Company "without Cause", which the
Company may do at any time, with at least thirty (30) days advance written
notice, subject to the full performance of the obligations of the Company to the
Employee for Base Compensation and bonus payments pursuant to Section 5.2; or
(e) Employee voluntarily terminates his employment due to "Good
Reason", which shall mean a material default by the Company in the performance
of any of its obligations hereunder, which default remains uncured by the
Company for a period of thirty (30) days following receipt of written notice
thereof to the Company from Employee or
(f) Employee voluntarily terminates his employment without Good
Reason, which Employee may do at any time with at least 30 days advance notice.
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5.2 Effects of Termination
(a) Upon termination of Employee's employment hereunder for any
reason, the Company will promptly pay Employee all Base Compensation owed to
Employee and all bonuses earned, as previously defined in writing by the
Company, and unpaid through the date of termination (including, without
limitation, salary and employee expenses reimbursements). Employee shall be paid
for any performance bonus plan then in effect on a pro rata basis for that
period of time during the fiscal year in which termination occurs, but such
amount, if any shall only be paid at a commensurate time as other employees are
paid their bonus amounts.
(b) Upon termination of Employee's employment under Sections 5.1(b),
(d) or (e), the Company shall pay Employee, commencing immediately upon such
termination of employment, monthly (or biweekly at the Company's discretion)
amounts equal to the then applicable Base Compensation, excluding bonus, for a
period of six (6) months after termination.
(c) Upon termination of Employee's employment hereunder pursuant to
Sections -5.1 (b), (c), (d), or (f), Employee agrees that for the twelve (12)
month period following the Termination Event:
(i) Employee will not directly or indirectly, whether as an
individual, employee, director, consultant or advisor, or in any other capacity
whatsoever, provide services to any person, firm, corporation or other business
enterprise which is involved in the business of disease management, ancillary
claims management, or ancillary benefits management in competition with the
Company, unless he obtains the Company's prior written consent.
(ii) Employee 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 employees.
(iii) Employee will not induce or attempt to induce any
provider, agent, 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 providers,
agent, customer, supplier, distributor, licensee or other business relation and
the Company.
Employee 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 Employee from continuing to engage in such breach.
If any restriction set forth in this paragraph is held to be unreasonable,
then Employee 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
(d) Following a Termination Event, Employee agrees not to make to
any person, including but not limited to customers of the Company, any statement
that disparages the Company or which reflects negatively upon the Company,
including but not limited to statements regarding the Company's financial
condition, its officers, directors, shareholders, employees and affiliates. The
Company agrees not to make to any person, including but not limited to customers
of the Company, any statement that disparages Employee or which reflects
negatively upon Employee, including but not limited to statements regarding his
financial condition.
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6. General Provisions
6.1 Assignment. Neither party may assign or delegate any of his or its
rights or obligations under this Agreement without the prior written consent of
the other party.
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.
6.3 Modifications. This Agreement may be changed or modified only by an
agreement in writing signed by both parties hereto.
6.4 Prior Agreements. This Agreement supercedes all prior written and
verbal agreements with the Company and/or its Board of Directors and shall
govern all future employment obligations.
6.5 Successors and Assigns. The provisions of this Agreement shall inure
to the benefit of, and be binding upon, the Company and its successors and
permitted assigns and Employee and Employee'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.
6.6 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with, the laws of the State of Texas, and venue and
jurisdiction for any disputes hereunder shall be heard in any court of competent
jurisdiction in Dallas, Texas for all purposes.
6.7 Severability. If any provision of this 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:
CEO and Chairman
American CareSource Holdings, Inc.
c/o Patient Infosystems, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and in the case of Employee, to the address shown for Employee 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.
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6.9 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 of any other provision of
this Agreement.
6.10 Legal Fees and Expenses. In the event of any disputes under this
Agreement, each party shall be responsible for their own legal fees and expenses
which it may incur in resolving such dispute, unless otherwise prohibited by
applicable law or a court of competent jurisdiction.
6.11 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.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement,
effective as of the day and year first above written.
American CareSource Holdings, Inc.
By: /s/ Xxxxxx Xxxxxxxx
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EMPLOYEE:
By: /s/ Xxxxx Xxxxxxxxxxxx
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Xxxxx Xxxxxxxxxxxx
Address_________________________________
________________________________________
________________________________________
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