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EXHIBIT 10.52
April 1, 1999
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Senior Vice President, Sales
QuadraMed Corporation
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
We are pleased to inform you that the Board of Directors (the "Board")
of QuadraMed Corporation (the "Company") has authorized an employment package
for you which will provide certain assurances concerning the terms and
conditions of your continued employment with the Company and will allow you to
participate in a program of severance benefit payments should your employment
terminate. The purpose of this letter agreement (the "Agreement") is to document
the terms of your employment package by providing you with a formal employment
contract.
The Company considers it essential to the continuing operation of the
Company and in the best interests of its stockholders to assure the continuous
dedication of key management personnel. It is recognized in the context of
public ownership that a termination of an employee's employment without cause
may be sought and that such circumstances could prove distracting to key
executives and detrimental to the ongoing management and administration of the
Company. Such distraction is not in the best interest of the stockholders of the
Company. Accordingly, the Board has determined to discourage the inevitable
distraction to you in the face of potentially disturbing circumstances inherent
in any uncertainty regarding your employment status. This Agreement is intended
to secure and encourage your ongoing retention by providing separation benefits
in the event that your employment is altered as hereinafter described. In order
to induce you to remain in the employ of the Company, and in consideration of
your agreement set forth in Sections 11, 12, 13 and 14 of Part Two hereof, the
Company agrees to pay the severance payments and benefits set forth in this
Agreement, under the circumstances described herein.
Part One of this Agreement sets forth certain definitional provisions
to be in effect for purposes of determining your benefit entitlements. Part Two
specifies the terms and conditions which will apply to your continued employment
with the Company, including the severance payments and benefits to which you
will become entitled in the event your employment should be terminated. Part
Three concludes this Agreement with a series of general terms and
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Senior Vice President, Sales
QuadraMed Corporation
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conditions applicable to your employment benefits.
PART ONE -- DEFINITIONS
DEFINITIONS. For purposes of this Agreement, including in particular
the severance payments and benefits to which Employee may become entitled under
Part Two, the following definitions will be in effect:
"CHANGE IN CONTROL" means:
(i) a merger or acquisition in which the Company is not the surviving
entity, except for a transaction the principal purpose of which is to change the
State of the Company's incorporation;
(ii) a stockholder approved sale, transfer or other disposition of all
or substantially all of the assets of the Company;
(iii) a transfer of all or substantially all of the Company's assets
pursuant to a partnership or joint venture agreement or similar arrangement
where the Company's resulting interest is less than fifty percent (50%);
(iv) any reverse merger in which the Company is the surviving entity
but in which fifty percent (50%) or more of the Company's outstanding voting
stock is transferred to holders different from those who held the stock
immediately prior to such merger;
(v) on or after the date hereof, a change in ownership of the Company
through an action or series of transactions, such that any person is or becomes
the beneficial owner, directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the securities of the combined
voting power of the Company's outstanding securities; or
(vi) a majority of the members of the Board are replaced during any
twelve-month period by directors whose appointment or election is not endorsed
by a majority of the members of the Board prior to the date of such appointment
of election.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"EMPLOYEE" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"EMPLOYEE BENEFIT PLAN" shall have the meaning given the term under
Section 3 of
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QuadraMed Corporation
April 1, 1999
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ERISA.
"EMPLOYMENT PERIOD" means the period of Employee's employment with the
Company governed by the terms and provisions of this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"INVOLUNTARY TERMINATION" means the termination of Employee's
employment with the Company:
(i) involuntarily upon Employee's discharge, dismissal or the Company's
failure to renew this Agreement pursuant to Section 3 of Part Two, whether or
not in connection with a Change in Control; or
(ii) voluntarily or involuntarily, provided such termination occurs in
connection with (a) a change in Employee's position with the Company which
materially reduces Employee's level of responsibility or changes Employee's
title from Senior Vice President, Sales, (b) a reduction in Employee's level of
compensation (including base salary, fringe benefits and any non-discretionary
bonuses or other incentive payments earned pursuant to objective standards or
criteria) or (c) a relocation of Employee's principal place of employment by
more than forty-five (45) miles and such change, reduction or relocation is
effected without Employee's written concurrence.
"OPTION" means any option or share purchase right granted to Employee
under the Stock Option Plan which is outstanding at the time of a Change in
Control or Employee's Involuntary Termination.
"STOCK OPTION PLAN" means the Company's 1996 Stock Incentive Plan
(including the predecessor 1994 Stock Option Plan), as amended through the date
hereof.
"TERMINATION FOR CAUSE" will mean an Involuntary Termination of
Employee's employment for (i) one or more alleged acts of fraud, embezzlement,
misappropriation of proprietary information, misappropriation of the Company's
trade secrets or other confidential information, a verifiable breach of
Employee's fiduciary duties to the Company or any other verifiable misconduct
adversely affecting the business reputation of the Company in a material manner
or (ii) Employee's failure to devote his full working time and effort to the
performance of his duties hereunder; provided, however, Employee will have the
right to perform incidental services as are necessary in connection with (a) his
private passive investments, (b) his charitable or community activities and (c)
his participation in trade or professional
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April 1, 1999
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organizations, but only to the extent such incidental services do not materially
interfere with the performance of Employee's services hereunder.
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PART TWO -- TERMS AND CONDITIONS OF EMPLOYMENT
The following terms and conditions will govern Employee's employment
with the Company throughout the Employment Period and will also, to the extent
indicated below, remain in effect following Employee's termination date.
1. EMPLOYMENT AND DUTIES. The Company will continue to employ Employee
as an executive officer in the position of Senior Vice President, Sales.
Employee agrees to continue in such employment for the duration of the
Employment Period and to perform in good faith and to the best of Employee's
ability all services which may be required of Employee in his executive position
and to be available to render such services at all reasonable times and places
in accordance with reasonable directives and assignments issued by the Board.
During Employee's Employment Period, Employee will devote his full time and
effort to the business and affairs of the Company within the scope of his
executive office. Employee's principal place of operations will be at the
Company's corporate offices in Richmond, California.
2. AT WILL EMPLOYEE. The Company hereby employs the Employee, and the
Employee hereby accepts employment by the Company, upon the terms and conditions
set forth in this Agreement. Employee shall be an employee "at will", terminable
at any time by the Company for cause or without cause.
3. TERM; AUTOMATIC EXTENSION. The initial term of this Agreement shall
be two (2) years from the effective date hereof. Commencing on the anniversary
of the effective date hereof, and on each succeeding anniversary of the date
hereof, the term of this Agreement shall automatically be extended for one (1)
additional year unless, not later than three (3) months preceding such
anniversary date, either party to this Agreement shall have given written notice
to the other party pursuant to Section 6 of Part Three that such party will not
extend the term of this Agreement.
4. COMPENSATION.
A. For service in the 1999 calendar year, Employee's base
salary will be paid at the annual rate of One Hundred Seventy-Five Thousand
Dollars ($175,000). Employee's annual rate of base salary may be subject to
adjustment each calendar year by the Board.
B. Employee's base salary will be paid at periodic intervals
in accordance with the Company's payroll practices for salaried employees.
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QuadraMed Corporation
April 1, 1999
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C. Employee will be entitled to such bonuses (if any) for
service rendered during the Employment Period as the Board may determine in its
sole discretion and based upon the recommendation of the Company's Compensation
Committee and such additional factors as the Board deems appropriate, including
Employee's individual performance and the Company's financial results.
D. The Company will deduct and withhold, from the compensation
payable to Employee hereunder, any and all applicable federal, state and local
income and employment withholding taxes and any other amounts required to be
deducted or withheld by the Company under applicable statute or regulation.
5. EXPENSE REIMBURSEMENT. Employee will be entitled to reimbursement
from the Company for all customary, ordinary and necessary business expenses
incurred by him in the performance of his duties hereunder, provided Employee
furnishes the Company with vouchers, receipts and other substantiation of such
expenses in accordance with Company policies.
6. FRINGE BENEFITS. During the Employment Period, Employee will be
eligible to participate in any group life insurance plan, group medical and/or
dental insurance plan, accidental death and dismemberment plan, short-term
disability program and other employee benefit plans, including profit sharing
plans, cafeteria benefit programs and stock purchase and option plans, which are
made available to executives and for which Employee qualifies.
7. VACATION. Employee will accrue four (4) weeks of paid vacation
benefits during each calendar year of the Employment Period in accordance with
the Company policy in effect for executive officers.
8. DEATH OR DISABILITY.
A. Upon Employee's death or disability during the Employment
Period, the employment relationship created pursuant to this Agreement will
immediately terminate, and no further compensation will become payable to
Employee pursuant to Part Two, Section 4. In connection with such termination by
reason of death, the Company will only be required to pay Employee (or his
estate) any unpaid compensation earned under Part Two, Section 4 for services
rendered through the date of Employee's death, together with a special
termination payment equal to the additional amount of base salary Employee would
have earned hereunder had his employment continued for an additional thirty (30)
days. In connection with such termination by reason of disability, the Company
will be required to pay to Employee any
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April 1, 1999
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unpaid compensation earned under Part Two, Section 4 for services rendered
through the date of Employee's disability, together with the severance benefits
set forth in Section 9 below. However, the Company's obligation to provide such
severance benefits shall be reduced and offset, dollar-for-dollar, by any income
continuation payments provided Employee under any disability income/insurance
programs funded by the Company on Employee's behalf.
B. Employee will be deemed disabled if his is so characterized
pursuant to the terms of the Company's disability insurance policies applicable
to Employee from time to time or, if no such policy is applicable, if Employee
is unable to perform the essential functions of his duties for physical or
mental reasons for one hundred twenty (120) consecutive days, or one hundred
eighty (180) days during any twelve (12) month period.
C. Upon death or disability the terms of the Stock Option Plan
will apply.
9. SEVERANCE BENEFITS. Employee will be entitled to receive the
severance benefits specified below in the event there should occur a termination
of Employee's employment by reason of disability or an Involuntary Termination
of his employment (other than a Termination for Cause).
▇. ▇▇▇▇▇▇▇▇▇ BENEFIT. The Company will make a severance
payment to Employee, in one lump sum within thirty (30) days of the date of
Employee's Involuntary Termination, in an aggregate amount equal to one (1) time
Employee's then-current annual rate of base salary. Employee may elect, in his
sole discretion, to have the severance benefit payable pursuant to this Section
9.A in monthly installments over a one (1) year period following the date of his
Involuntary Termination.
B. WELFARE BENEFITS. For a period of twelve (12) months,
Employee (and his dependents, as applicable) shall be provided by the Company
with the same life, health and disability plan participation, benefits and other
coverages to which he was entitled as an employee immediately before the
disability or the Involuntary Termination. In the event that under applicable
law or the terms of the relevant Employee Benefit Plans such participation,
benefits and/or coverage cannot be provided to Employee following his
Involuntary Termination, such coverage and/or benefits shall be provided
directly by the Company pursuant to this Agreement on a comparable basis. In its
sole discretion, the Company may obtain such coverage and benefits for Employee
through private insurance acquired at the Company's expense. Amounts paid or
payable to or on behalf of Employee pursuant to any "employee welfare benefit
plan," as defined in ERISA, providing health and/or disability benefits, that is
sponsored by the Company or an affiliate of the Company, shall be credited
against amounts due under this Section 9.B. To the maximum extent permitted by
applicable
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law, the benefits provided under this Section 9.B shall be in discharge of any
obligations of the Company or any rights of Employee under the benefit
continuation provisions under Section 4980A of the Code and Part VI of Title I
of ERISA ("COBRA") or any other legislation of similar import.
C. OPTION ACCELERATION. In connection with the Involuntary
Termination of Employee's employment (other than Termination for Cause), whether
before or after a Change in Control transaction, each of Employee's Options
under the Stock Option Plan and all restricted or unvested Common Stock granted
by the Company will (to the extent not then otherwise exercisable or vested)
automatically accelerate and vest and any repurchase right with respect thereto
will terminate so that each such Option or share of restricted or unvested
Common Stock will become immediately and fully exercisable or vested as of the
date of termination. Each such accelerated Option, together with all of
Employee's other vested Options, will remain exercisable for a period of three
(3) years following Employee's Involuntary Termination and may be exercised for
any or all of the option shares, including the accelerated shares, in accordance
with the exercise provisions of the Option agreement evidencing the grant.
D. RELEASE OF COMPANY. Receipt of severance benefits pursuant
to this Section 9 shall be in lieu of all other amounts payable by the Company
to Employee and in settlement and complete release of all claims Employee may
have against the Company other than those arising out of the severance benefits
due and payable under Sections 9 and 16 of Part Two of this Agreement and
Employee's rights under Part Three of this Agreement. Employee acknowledges and
agrees that execution of a mutual general release of claims setting for the
terms of this Section 9.D. and otherwise reasonably acceptable to the Company
and Employee shall be a condition precedent to the Company's obligation to pay
severance benefits hereunder.
10. OPTION/VESTING ACCELERATION UPON CHANGE IN CONTROL.
A. To the extent the acquiring company in any Change in Control
transaction does not assume or otherwise continue in full force and effect the
Employee's outstanding Options under the Stock Option Plan, those Options shall
automatically accelerate and vest so that each such Option will, immediately
prior to the Change in Control, become fully exercisable for all the option
shares and shall terminate immediately after the Change in Control transaction.
B. The following provisions shall govern any Options which are to
be assumed or otherwise continued in effect in the Change in Control and any
restricted or
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QuadraMed Corporation
April 1, 1999
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unvested shares of Common Stock held by the Employee at the time of the Change
in Control.
The Options shall accelerate and vest at the time of the Change in
Control so that each Option will become exercisable for all of the Option shares
immediately prior to the Change in Control transaction, except to the extent the
Option parachute payment attributable to such accelerated vesting would
otherwise result in an excess parachute payment under Code Section 280G. Any
Option which does not accelerate and vest at the time of the Change in Control
by reason of the foregoing limitation shall continue to become exercisable and
vest in accordance with the vesting schedule applicable to that Option
immediately prior to the Change in Control.
Any restricted or unvested shares of Common Stock held by the
Employee at the time of the Change in Control shall immediately vest at that
time and the Company's repurchase rights with respect to those shares shall
terminate, except to the extent the parachute payment attributable to such
accelerated vesting, when added to the parachute payment attributable to the
acceleration of the Employee's outstanding Options, would result in an excess
parachute payment under Code Section 280G. The Company's repurchase rights with
respect to any restricted or unvested shares which do not vest at the time of
the Change in Control by reason of the foregoing limitation shall continue in
effect and shall be assigned to any successor entity in the Change in Control
transaction, and Employee shall continue to vest in those shares in accordance
with the vesting schedule in effect for the shares immediately prior to the
Change in Control.
Any Option which does not accelerate, and any restricted or
unvested shares of Common Stock which do not vest at the time of the Change in
Control by reason of the foregoing limitations shall immediately vest in full
pursuant to the provisions of Section 9.C. upon any Involuntary Termination of
Employee's employment following the Change in Control (other than a Termination
for Cause). Each such accelerated Option, together with each of the Employee's
other vested Options shall remain exercisable and outstanding for a period of
three (3) years following Employee's Involuntary Termination and may be
exercised for any or all of the Option shares, including the accelerated shares,
in accordance with the provisions of the Option agreement evidencing such
Option.
All determinations concerning the application of the parachute
payment provisions of Code Section 280G to the accelerated vesting of Options
and shares pursuant to this Section 10 shall be made in accordance with the
procedures set forth in
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Section 16.B.
Each Option which is assumed or otherwise continued in effect will
be appropriately adjusted to apply to the number and class of securities which
would have been issued to Employee in the consummation of the Change in Control
transaction had the Option been exercised immediately prior to such transaction,
and appropriate adjustments will be made to the Option exercise price payable
per share, provided the aggregate exercise price will remain the same.
11. RESTRICTIVE COVENANT. During the Employment Period, Employee will not
directly or indirectly, whether for Employee's own account or as an employee,
consultant or advisor, provide services to any business enterprise other than
the Company, unless otherwise authorized by the Company in writing.
12. NON-SOLICITATION AND NON-DISPARAGEMENT. During any period for which
Employee is receiving compensation payments pursuant to Part Two, Section 4 and
one (1) year thereafter, Employee will not directly or indirectly (i) solicit
any Company employee, independent contractor or consultant to leave the
Company's employ or otherwise terminate such person's relationship with the
company for any reason or interfere in any other manner with the employment or
other relationships at the time existing between the Company and its current
employees, independent contractors or consultants, (ii) solicit any of the
Company's customers for products or services substantially similar to those
offered by the Company, or (iii) disparage the Company or any of its
stockholders, directors, officers, employees or agents.
13. CONFIDENTIALITY.
A. Employee hereby acknowledges that the Company may, from time to
time during the Employment Period, disclose to Employee confidential information
pertaining to the Company's business and affairs and client base, including
(without limitation) customer lists and accounts, other similar items indicating
the source of the Company's income and information pertaining to the salaries,
duties and performance levels of the Company's employees. Employee will not, at
any time during or after such Employment Period, disclose to any third party or
directly or indirectly make use of any such confidential information, including
(without limitation) the names, addresses and telephone numbers of the Company's
customers, other than in connection with, and in furtherance of, the Company's
business and affairs. Nothing contained in this section shall be construed to
prevent Employee from disclosing the amount of his salary.
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B. All documents and data (whether written, printed or otherwise
reproduced or recorded) containing or relating to any such proprietary
information of the Company which come into Employee's possession during the
Employment Period will be returned by Employee to the Company immediately upon
the termination of the Employment Period or upon any earlier request by the
Company, and Employee will not retain any copies, notes or excerpts thereof.
Notwithstanding the foregoing, Employee shall be entitled to retain his file or
Rolodex containing names, addresses and telephone numbers and personal diaries
and calendars; provided, however, that Employee shall continue to be bound by
the terms of Section 13.A. above to the extent such retained materials
constitute confidential information.
C. Employee's obligations under this Section 13 will continue in
effect after the termination of Employee's employment with the Company, whatever
the reason or reasons for such termination, and the Company will have the right
to communicate with any of Employee's future or prospective employers concerning
his continuing obligations under this Section 13.
14. OWNERSHIP RIGHTS.
A. All materials, ideas, discoveries and inventions pertaining to
the Company's business or clients, including (without limitation) all patents
and copyrights, patent applications, patent renewals and extensions and the
names, addresses and telephone numbers of customers, will belong solely to the
Company.
B. All materials, ideas, discoveries and inventions which Employee
may devise, conceive, develop or reduce to practice (whether individually or
jointly with others) during the Employment Period will be the sole property of
the Company and are hereby assigned by Employee to the Company, except for any
idea, discovery or invention (i) for which no Company equipment, supplies,
facility or trade secret information is used, (ii) which is developed entirely
on Employee's own time and (iii) which neither (a) relates at the time of
conception or reduction to practice, to the Company's business or any actual or
demonstrably-anticipated research or development program of the Company nor (b)
results from any work performed by Employee for the Company. The foregoing
exception corresponds to the assignment of inventions precluded by California
Labor Code Section 2870, attached as Exhibit A.
C. Employee will, at all times whether during or after the
Employment Period, assist the Company, at the Company's sole expense, in
obtaining, maintaining, defending and enforcing all legal rights and remedies of
the Company, including, without limitation, patents, copyrights and other
proprietary rights of the Company. Such assistance
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will include (without limitation) the execution of documents and assistance and
cooperation in legal proceedings.
D. Employee will continue to be bound by all the terms and
provisions of Employee's existing Proprietary Information Agreement with the
Company, and nothing in this document will be deemed to modify or affect
Employee's duties and obligations under those other agreements.
15. TERMINATION OF EMPLOYMENT.
A. The Company (or any successor entity resulting from a Change in
Control) may terminate Employee's employment under this Agreement at any time
for any reason, with or without cause, by providing Employee with at least seven
(7) days prior written notice. However, such notice requirement will not apply
in the event there is a Termination for Cause under subsection D below.
B. In the event there is a termination of Employee's employment by
reason of disability or an Involuntary Termination of Employee's employment with
the Company (other than Termination for Cause) during the Employment Period,
Employee will become entitled to the benefits specified in Part Two, Section 9
in addition to any unpaid compensation earned by Employee under Part Two,
Section 4 for services rendered prior to such termination. However, in the event
of such disability, the Company's obligation to provide benefits under Part Two,
Section 9 shall be reduced and offset, dollar-for-dollar, by any income
continuation payments provided Employee under any disability income/insurance
program funded by the Company on Employee's behalf.
C. Should Employee's employment with the Company terminate by
reason of his death during the Employment Period, no severance benefits will be
payable to Employee under Part Two, Section 9, and only the limited death
benefits provided under Part Two, Section 8 will be payable.
D. The Company may at any time, upon written notice, terminate
Employee's employment hereunder for any act qualifying as a Termination for
Cause. Such termination will be effective immediately upon such notice.
E. Upon such Termination for Cause, the Company will only be
required to pay Employee any unpaid compensation earned by him pursuant to Part
Two, Section 4 for services rendered through the date of such termination, and
no termination or severance benefits will be payable to Employee under Part Two,
Section 9.
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16. TAX EFFECT OF PAYMENTS.
▇. ▇▇▇▇▇-UP PAYMENT. In the event that it is determined that any
payment or distribution of any type to or for Employee's benefit made by the
Company, by any of its affiliates, by any person who acquires ownership or
effective control of the Company or ownership of a substantial portion of the
Company's assets (within the meaning of Section 280G of the Code and the
regulations thereunder) or by any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments"), would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest or penalties, are
collectively referred to as the "Excise Tax"), then Employee shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by Employee of all taxes imposed upon the Gross-Up Payment,
including any Excise Tax, Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed on the Total Payments.
B. DETERMINATION BY ACCOUNTANT. All mathematical determinations
and all determinations of whether any of the Total Payments are "parachute
payments" (within the meaning of Section 280G of the Code) that are required to
be made under this Section 16, including all determinations of whether a
Gross-Up Payment is required, of the amount of such Gross-Up Payment and of
amounts relevant to the last sentence of this Section 16, shall be made by an
independent accounting firm selected by Employee and reasonably acceptable to
the Company from among the largest five (5) accounting firms in the United
States (the "Accounting Firm"), which shall provide its determination, together
with detailed supporting calculations regarding the amount of any Gross-Up
Payment and any other relevant matters (the "Determination"), both to the
Company and to Employee within five (5) business days of Employee's termination
date, if applicable, or such earlier time as is requested by the Company or by
Employee (if Employee reasonably believes that any of the Total Payments may be
subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax
is payable by Employee, it shall furnish Employee with a written statement that
such Accounting Firm has concluded that no Excise Tax is payable (including the
reasons therefor) and that Employee has substantial authority not to report any
Excise Tax on Employee's federal income tax return. If a Gross-Up Payment is
determined to be payable, it shall be paid to Employee within five (5) business
days after the Determination is delivered to the Company or to Employee. Any
Determination by the Accounting Firm shall be binding upon the Company and
Employee, absent manifest error. All of the costs and expenses of the Accounting
Firm shall be borne by the Company.
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C. UNDERPAYMENTS AND OVERPAYMENTS. As a result of uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments not made by the Company should have been made ("Underpayments") or that
Gross-Up Payments will have been made by the Company which should not have been
made ("Overpayments"). In either event, the Accounting Firm shall determine the
amount of the Underpayment or Overpayment that has occurred. In the case of an
Underpayment, the amount of such Underpayment shall promptly be paid by the
Company to or for Employee's benefit. In the case of an Overpayment, Employee
shall, at the direction and expense of the Company, take such steps as are
reasonably necessary (including the filing of returns and claims for refund),
follow reasonable instructions from, and procedures established by, the Company
and otherwise reasonably cooperate with the Company to correct such Overpayment;
provided, however, that (i) Employee shall in no event be obligated to return to
the Company an amount greater than the net after-tax portion of the Overpayment
that Employee has retained or has received as a refund from the applicable
taxing authorities and (ii) this provision shall be interpreted in a manner
consistent with the intent of this Section 16, which is to make Employee whole,
on an after-tax basis, for the application of the Excise Tax, it being
understood that the correction of an Overpayment may result in Employee's
repaying to the Company an amount which is less than the Overpayment.
PART THREE -- MISCELLANEOUS PROVISIONS
1. MITIGATION. Employee shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise and no future income earned by Employee from employment
or otherwise shall in any way reduce or offset any payments due to Employee
hereunder. The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish Employee's existing rights which would accrue solely as a result of the
passage of time, under any Company Employee Benefit Plan, "Payroll practice" (as
defined in ERISA), compensation arrangement, incentive plan, stock option or
other stock-related plan.
2. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of the Company, including, without
limitation, any corporation or corporations acquiring directly or indirectly all
or substantially all of the stock, business or assets of the Company whether by
merger, consolidation, division, sale or otherwise (and such successor shall
thereafter be deemed "the Company" for the purposes of this Agreement). The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, by agreement in form and substance satisfactory to
Employee, to
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Senior Vice President, Sales
QuadraMed Corporation
April 1, 1999
Page 15
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement entitling Employee to the benefits hereunder, as though Employee
was subject to Involuntary Termination. This Agreement shall be binding upon and
inure to the benefit of Employee, his successors, assigns, executors,
administrators or beneficiaries.
3. INDEMNIFICATION. The indemnification provisions for officers and
directors under the Company's Bylaws and any applicable indemnification
agreement between Employee and the Company will (to the maximum extent permitted
by law) be extended to Employee, during the period following his Involuntary
Termination, with respect to any and all matters, events or transactions
occurring or effected during Employee's Employment Period.
4. MISCELLANEOUS. The provisions of this Agreement will be construed and
interpreted under the laws of the State of California. This Agreement
incorporates the entire Agreement between Employee and the Company relating to
the terms of Employee's employment and the subject of severance benefits and
supersedes all prior agreements and understandings with respect to such subject
matter. This Agreement may only be amended by written instrument signed by
Employee and an authorized officer of the Company.
5. ARBITRATION. Any controversy which may arise between Employee and the
Company with respect to the construction, interpretation or application of any
of the terms, provisions, covenants or conditions of this Agreement or any claim
arising from or relating to this Agreement will be submitted to final and
binding arbitration in San Francisco, California in accordance with the rules of
the American Arbitration Association then in effect.
6. NOTICES. Any notice required to be given under this Agreement shall be
deemed sufficient, if in writing, and sent by certified mail, return receipt
requested, via overnight courier, or hand delivered to the Company at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and to Employee at his
most recent address reflected in the permanent Company records. Copies of each
such notice delivered by either the Company or Employee shall be provided to
each current member of the Board at each such director's current address as
listed in the Company's records.
7. LEGAL COSTS. If any legal action or other proceeding is brought by
Employee for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, Employee shall be entitled to recover reasonable
attorneys fees and other costs incurred in that action or
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Senior Vice President, Sales
QuadraMed Corporation
April 1, 1999
Page 16
proceeding, in addition to any other relief to which Employee may be entitled,
in the event and to the extent that Employee prevails in such action or other
proceeding. Notwithstanding anything herein above to the contrary, as between
Employee and the Company, the Company shall bear all legal costs and expenses of
defending the validity of this Agreement against any third party. The Company
shall bear all legal costs and expenses incurred in the event the Company should
contest or dispute the characterization of any amounts paid pursuant to this
Agreement as being nondeductible under Section 280G of the Code or subject to
imposition of an excise tax under Section 4999 of the Code.
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Senior Vice President, Sales
QuadraMed Corporation
April 1, 1999
Page 17
Please indicate your acceptance of the foregoing provisions of this
Agreement by signing the enclosed copy of this Agreement and returning it to the
Company.
Very truly yours,
QUADRAMED CORPORATION
By:
Title:
ACCEPTED BY AND AGREED TO:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Dated:
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EXHIBIT A
Section 2870. APPLICATION OF PROVISION PROVIDING THAT EMPLOYEE WILL
ASSIGN OR OFFER TO ASSIGN RIGHTS IN INVENTION TO EMPLOYER.
(a) Any provision in an employment agreement which provides that an
employee will assign, or offer to assign, any of his or her rights in an
invention to his or her employer will not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for his
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
