EXHIBIT 10.8
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
11th day of November, 1996 by and between PROXYMED, INC. ("Company") and Xxxxx
X. Xxxxxx residing at 000 XX 00xx Xxx., Xxx. #000 Xxxxxxxxxx, XX. 00000
("Employee").
WHEREAS, upon the terms and subject to the conditions of this
Agreement, the Company desires to employ the Employee and the Employee is
willing to accept employment by the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth hereinafter and other good and valuable considerations, the receipt
and sufficiency of which is hereby acknowledged, the Company and the Employee
agree as follows:
1. TERM. The term of this Agreement shall commence on October 1, l996 (the
"Effective Date") and shall continue until September 30, l999 (hereafter the
"Term), and shall be automatically extended from year to year thereafter unless
i) terminated by the Company by delivery of not less than ninety (90) days
written notice to Executive prior to the end of the initial Term or any
extension thereof, in which case the employment of Employee shall terminate on
the date specified for termination in such notice, or ii) terminated by Employee
by delivery of not less than thirty (30) days written notice to the Company, in
which case the employment of Employee shall terminate on the date which is
thirty (30) days following the date notice is received by the Company.
2. POSITION; DUTIES; LOYALTY.
a) POSITION. Employee will be employed as Executive Vice President, Systems
& Clinical Information Divisions of the Company and shall render services to the
Company pursuant to the terms, provisions and conditions hereinafter set forth.
b) DUTIES. Employee shall be employed by the Company on a full-time,
exclusive basis. Employee shall perform such duties and have such authority and
responsibilities customarily accompanying those of an executive officer within
the scope of the position.
c) LOYALTY. Employee shall devote the full time required for the position
and shall give her best efforts to the business of the Company and the
performance of the duties and obligations described in this Agreement. Employee
shall not, directly or indirectly, alone, or as a partner, officer, director or
shareholder of any other institution, be engaged in any other commercial
activities whatsoever, or continue or assume any other corporate affiliations
without the prior written consent of the Company, which consent shall not be
unreasonably withheld, except for (a) passive investments, and (b) minimal time
utilized for business activities that do not compete with the business of the
Company or its subsidiaries.
3. COMPENSATION AND EXPENSES.
a) SALARY. In consideration for the services rendered by the Employee under
this Agreement, the Company shall pay the Employee a monthly base salary of
$6,250.00 (the "Base Salary") in accordance with the Company's customary payroll
practices, plus a $500 per
month car allowance, subject to federal and state taxes, if any, through March
15, l997, with Base Salary increasing to $8,750 per month thereafter.
b) ADDITIONAL COMPENSATION. On March 16, l997, Employee shall receive a one
time incentive bonus of $12,000, subject to federal and state taxes, if any. As
a further incentive and inducement to Employee to accept employment by the
Company and to devote her best efforts to the business and affairs of the
Company, Employee shall be entitled to such bonuses that may be awarded from
time to time by the Compensation Committee or the Board of Directors of the
Company, and to participate in any stock option or bonus plans which the Company
may now have or in the future develop.
c) RELOCATION. Employee has received a one time net amount of $15,000
toward any and all relocation expenses, including federal and state taxes, if
any.
d) OPTIONS. Employee will receive a stock option agreement to purchase up
to 60,000 shares of the Company's common stock at its fair market value defined
as the mean of the high and low prices at common stock is reported to have
traded on the NASDAQ/NMS System at the close of business on the date the Board
of Directors or the Compensation Committee have approved the grant, which is
November 11, 1996, at an exercise price of $6.94 per share. The options will
vest over a three (3) year period as follows: 6,600 on January 1, 1997; 5,400 on
October 1, l997; 24,000 on October 1, l998; and 24,000 on September 30, 1999.
The option is being granted as an inducement to a new employee essential to
Employee's entering into this Agreement. As such, the option being granted is a
non-qualified option outside of any stock option plan adopted by the Company.
The terms of Employee's stock option agreement will be on a form as approved by
the Board of Directors on November 11, l996 and will be for a ten (10) year term
with "change of control" provisions similar to those contained in Company' 1995
Stock Option Plan.
e) EXPENSES. Company shall promptly pay or reimburse the Employee for all
reasonable business expenses actually incurred or paid by the Employee in the
performance of her services hereunder in accordance with the policies and
procedures of the Company for the reimbursement of business expenses for its
senior level executives, provided that Employee properly accounts therefor in
accordance with the Company's policy. Employee has received reimbursement for
travel and living expenses related to relocation through October 11, l996, after
which date Company shall have no further obligation for such expenses.
f) TAX WITHHOLDING. The Company shall have the right to deduct or withhold
from the compensation due Employee hereunder any and all sums required for
Federal income and social security taxes and all state or local taxes now
applicable or that may be enacted and become applicable in the future.
4. BENEFITS.
a) VACATION. Employee shall be entitled to three weeks of vacation with pay
in the first year of her employment, and thereafter. Vacation not taken does not
accrue unless approved in writing by the Company. Employee shall not be entitled
to receive any additional compensation from the Company on account of her
failure to take a vacation.
b) PARTICIPATION IN BENEFIT PLANS. Employee shall be entitled to
participate in whatever benefit plans, including health insurance, that are
extended to all executives of the Company, on the same terms that such benefits
are so extended. The Company shall not be obligated to maintain any special or
additional plans for Employee's benefit. Employee shall
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also be entitled to participate in benefit plans extended to other executive
vice presidents of the Company.
5. TERMINATION.
a) TERMINATION WITHOUT CAUSE; DEATH; DISABILITY. In the event of Employee's
Disability (as defined herein), this Agreement may be terminated at the election
of the Company. Upon termination for death or Disability, Employee or her
beneficiary or estate or legal representative shall be entitled to receive the
amounts payable under Section 5 (c). For purposes of this Agreement,
"Disability" is defined to mean the inability of Employee due to illness or
physical or mental infirmity (as determined by a physician selected by Employee
and acceptable to the Company) to perform her duties hereunder on a full-time
basis for six consecutive months with reasonable accommodation by the Company.
Employee shall, upon request of the Company, furnish information and assistance
to the Company, and, in addition, upon reasonable request of the Company's Board
of Directors or its designees, shall make herself available to undertake
reasonable assignments consistent with the dignity, importance and scope of his
position and his physical and mental health.
b) TERMINATION FOR CAUSE. The Company may terminate Employee's employment
hereunder for "cause", effective immediately upon giving written notice thereof.
For purposes of this Agreement, the term "cause" shall be limited to (i)
conviction of a felony or of any crime involving fraud or misrepresentation;
(ii) the continued failure by Employee to substantially perform her duties to
the Company after receipt of written notice from the Company specifying any
action or inaction by Employee which is deemed by the Company to constitute a
failure to perform her duties hereunder with suggestions, where feasible, as to
how Employee may remedy such failure, and Employee has failed to correct the
unsatisfactory performance within thirty (30) days of such notice; (iii)
Employee's gross negligence or willful misconduct which is materially injurious
to the Company, monetarily or otherwise; (iv) proven dishonesty affecting the
Company; (v) excessive use of alcohol or illegal drugs interfering with the
performance of Employee's duties and the continuance thereof after written
warning; (vi) any material breach by Employee of the Company's then current
policies with written notice thereof and an appropriate period to cure such
breach where the breach is not one subject to immediate termination under the
Company's policies or of the covenants contained in Section 6 of this Agreement
regarding confidentiality. For purposes of the paragraph, no act or failure to
act on Employee's part shall be considered "willful" unless done, or omitted to
be done, by Employee not in good faith and without reasonable belief that her
action or omission was in the best interest of the Company. If at any time the
Company shall determine that Employee has engaged in one or more activities
constituting "cause" for termination hereunder, Employee's employment shall be
terminated for cause. Company shall pay Employee her full Base Salary through
the date of termination at the then current rate (including any applicable bonus
and accrued vacation pay), and all stock options, if any, which have become
vested and exercisable on or before the date of termination, with such options
remaining exercisable for such period of time specified as in Employee's Option
Agreement(s). Company shall then have no further obligations to Employee.
Employee may give a written request to the Company within thirty (30) days after
such termination requesting an opportunity to be heard by the Board of Directors
of the Company. If Employee timely so requests such an opportunity to be heard,
such opportunity shall be made available to Employee within 30 days after such
written request. If the Board, with the advice of counsel, determines that there
was cause for termination, its determination shall be deemed to be conclusive
and final. In the event Employee is terminated for cause, Section 6.a) and 6.b)
will be of no force or effect. If the
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Board in its reasonable judgment that there was not sufficient basis to
terminate Employee for cause, Employee shall be reinstated with all back pay and
benefits restored.
c) PAYMENT UPON TERMINATION WITHOUT CAUSE. In the event any termination
without cause, Employee shall be given ninety (90) days prior written notice.
Employee shall execute a full and complete release of any and all claims against
the Company in a form satisfactory to the Company, in which event Employee (or
her estate) shall be entitled to severance pay of (i) an amount equal to
Employee's Base Salary on the date of termination for 6 months commencing on the
date of termination payable in accordance with the Company's customary payroll
practices plus (ii) a pro rata portion of any bonus compensation which would
have been paid to Employee under any bonus plan which is adopted by the
Company's Compensation Committee or Board of Directors in such year if the
Company and Employee had met the targeted goals to the date of termination, plus
(iii) the continuation of all benefits including, without limitation, all
insurance plans) for 6 months after termination plus (iv) any remaining unvested
options shall vest. A termination pursuant to Section 1 above shall not be
deemed to be a termination without cause under this Section or a termination for
Good Reason under Section 5.f) or subject to this Section 5.c).
d) ACCELERATION. If the Company defaults in the payment of any amounts owed
hereunder to Employee following written notice by Employee and fails to cure
such default within ten days from the date of such notice, Employee shall be
entitled to accelerate the entire amount due hereunder. The Company shall have
the opportunity to cure a monetary default one time after which time, if another
default occurs, Employee shall be entitled to accelerate the entire amount due
hereunder upon written notice by Employee without affording the Company an
opportunity to cure.
e) RETURN OF COMPANY PROPERTY. Upon notice of termination by the Company or
resignation by Employee, Employee shall immediately return to the Company all
property of the Company in Employee's possession, including Confidential
Information (as defined below). Employee acknowledges that the Company may
withhold any compensation and benefits owed to Employee hereunder until all such
property is returned.
f) EMPLOYEE TERMINATION FOR GOOD REASON. Employee may terminate this
Agreement for Good Reason by giving Company ninety (90) days prior written
notice. Good Reason means: a) the assignment of any duties inconsistent in any
respect with Employee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities hereunder, or any
other action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose as isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of written notice from Employee;
b) any reduction of Employee's Base Salary or the failure by the Company to
provide Employee with an incentive compensation program and health and the
benefits hereunder no less favorable than the benefits Employee was entitled to
hereunder; and c) if Company's principal office is relocated in the future more
than fifty (50) miles from Ft. Lauderdale, FL. In such event, Employee's
termination shall be treated as a termination without cause and she shall be
entitled to the payments enumerated in Section 5.c) above.
g) MITIGATION. If Employee becomes entitled to compensation pursuant to
Section 5. c) or 5. f) above, Executive shall use reasonable efforts to seek
other employment; provided, however, that she shall not be required to accept a
position of less importance or dignity or of a substantially different character
than the position held as of the date of
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termination or a position that could require Executive to engage in activity in
violation of the non-competition provisions of Section 6 hereof nor shall she be
required to accept a position outside South Florida. The amount of any cash
compensation paid or payable from any such employment shall be reported to the
Company on a monthly basis and such amount shall be credited against amounts
otherwise payable by the Company to Executive under Sections 5.c) or 5.f) above.
Other than as provided in this Section 5.g), Executive shall have no duty to
mitigate the amount of any payment provided for in this Agreement.
6. COVENANTS OF EMPLOYEE.
a) Employee agrees that during the Term and for one year following a
termination of employment for any reason, he will not, directly or indirectly,
engage, assist or participate in, whether as a director, officer, executive,
agent, manager, consultant to vendors/sellers (but may consult to end
users/purchasers), partner, owner or independent contractor or other
participant, in any line of business which is the same as the Company or any of
its subsidiaries are engaged in as of the termination of this Agreement without
the written consent of the Company, which consent shall not be unreasonably
withheld. Employee and Company agree that this clause is to protect the
interests of the Company while at the same time allowing the Employee to pursue
gainful employment with any other company Employee so chooses, so long as such
Employee does not, within the relevant time period herein, engage in any line of
business that directly competes with any line of business engaged in by the
Company or any of its subsidiaries as of the date Employee terminates her
employment with Company. Nothing contained herein shall prevent Employee from
acquiring less than 1% of any class of securities of any company that competes
with the Company that has any of its securities listed on a national securities
exchange or traded in the over-the-counter market, provided Employee remains a
passive investor.
b) Employee agrees that during the Term and for one year after the
termination of employment for any reason, she will not, directly or indirectly,
without the prior written consent of the Company, induce or solicit any person
employed or hereafter employed by the Company or any of its subsidiaries to
leave the employ of the Company or any of its subsidiaries or solicit, recruit,
hire or attempt to solicit, recruit or hire any person employed by the Company.
Further, Employee agrees that for a period of one year after the termination of
this Agreement, she will not, directly or indirectly, without the prior written
consent of the Company, solicit, divert away, take away, or attempt to take away
any customer of the Company who was a customer which Employee had, alone or in
conjunction with others, served during his employment with the Company.
Regarding the latter sentence, Company and Employee agree that Employee may
contact and do business with those customers, however during the relevant time
period, she may not solicit or sell them any product or service in the lines of
business that were the same as then being offered by the Company or any of its
subsidiaries as of the termination of employee's employment.
c) Employee agrees and acknowledges the she will disclose promptly to the
Company every discovery, improvement and invention made, conceived or developed
by Employee during the entire period of employment (whether or not during
working hours) which discoveries, improvements, or inventions are capable of use
in any way in connection with the business of Company. To the fullest extent
permitted by law, all such discoveries, inventions and improvements will be
deemed works made for hire. Employee grants and agrees to convey to Company or
its nominee the entire right, title and interest, domestic and foreign, which
she may have in such discoveries, improvements or inventions, or a lesser
interest therein, at the option of Company. Employee further agrees to promptly,
upon request, sign all applications for patents, copyrights, assignments and
other appropriate documents, and to
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perform all acts and to do all things necessary and appropriate to carry out the
intent of this section, whether on not Employee is still an employee of the
Company at the time of such requests.
d) Employee agrees and acknowledges that the Confidential Information of
the Company and its subsidiaries (as hereinafter defined) is valuable, special
and unique to its business, that such business depends on such Confidential
Information, and that the Company wishes to protect such Confidential
Information by keeping it confidential for the use and benefit of the Company.
Based on the foregoing, Employee agrees to undertake the following obligations
with respect to such Confidential Information.
i) Employee agrees to keep any and all Confidential Information in
trust for the use and benefit of the Company.
ii) Employee agrees that, except as required by Employee's duties or
authorized in writing by the Company and its subsidiaries, she will not at any
time during and for a period of 10 years after the termination of his employment
with the Company and its subsidiaries, disclose, directly or indirectly, any
Confidential Information of the Company or any of its subsidiaries. except as
maybe required by applicable law or court order, in which case Employee shall
promptly notify Company so as to allow it to seek a protective order if it so
elects.
iii) Employee agrees to take all reasonable steps necessary, or
reasonably requested by the Company or its subsidiaries, to ensure that all
Confidential Information of the Company is kept confidential for the use and
benefit of the Company and its subsidiaries; and
iv) Employee agrees that, upon termination of his employment by the
Company or any of its subsidiaries or at any other time the Company may in
writing so request, she will promptly deliver to the Company all materials
constituting Confidential Information (including all copies thereof) that are in
the possession of or under the control of Employee. Employee further agrees
that, if requested by the Company to return any Confidential Information
pursuant to this Subsection (iv), she will not make or retain any copy or
extract from such materials.
For the purposes of this Section 6 (c), Confidential Information means
any and all information developed by or for the Company or any of its
subsidiaries of which Employee gained knowledge by reason of his employment by
the Company or any of its subsidiaries prior to the date hereof or during her
employment that is not generally known in any industry in which the Company or
its subsidiaries is or may become engaged, but does not apply to information
which is generally known to the public or the trade, unless such knowledge
results from an unauthorized disclosure by Employee. Confidential Information
includes, but is not limited to, any and all information developed by or for the
Company concerning plans, marketing and sales methods, materials, processes,
business forms, procedures, devices used by the Company, its subsidiaries,
suppliers and customers with which the Company had dealt with prior to
Employee's termination of employment with the Company and its subsidiaries,
plans for development of new products, services and expansion into new areas or
markets, internal operations, and any trade secrets, proprietary information of
any type owned by the Company and its subsidiaries, together with all written,
graphic and other materials relating to all or any part of the same. The Company
will receive all materials, including, software programs, source code, object
code, specifications, documents, abstracts, and summaries developed in
connection with Employee's employment. Employee acknowledges that the programs
and documentation developed in connection with Employee's employment with the
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Company shall be the exclusive property of the Company, and that the Company
shall retain all right, title and interest in such materials, including without
limitation patent and copyright interests. Nothing herein shall be construed as
a license from the Company to make, use, sell or copy any inventions, ideas,
trade secrets, trademarks, copyrightable works, or other intellectual property
of the Company during the term of this Agreement or subsequent to its
termination.
e) INJUNCTIVE RELIEF.
i) Employee acknowledges and agrees that the covenants and obligations
contained in this Section 6 relate to special, unique and extraordinary matters
and that a violation of any of the terms of this Section will cause the Company
irreparable injury for which adequate remedies at law are not available.
Therefore, Employee agrees that the Company shall be entitled (without having to
post a bond or other surety) to an injunction, restraining order, or other
equitable relief from any court of competent jurisdiction, restraining the
Employee from committing any violation of the covenants and obligations set
forth in this Section 6.
ii) The Company's rights and remedies under this Section are cumulative
and are in addition to any other rights and remedies the Company may have
pursuant to the specific provisions of this Agreement and at law or in equity.
7. MISCELLANEOUS.
a) ATTORNEY'S FEES. In the event a proceeding is brought to enforce or
interpret any part of this Agreement or the rights or obligations of any party
to this Agreement, the non- prevailing party shall pay the prevailing party's
fees and expenses, including reasonable attorney fees, unless the court or panel
of arbitrators determine otherwise.
b) SUCCESSORS AND ASSIGNS. This Agreement and the benefits hereunder are
personal to the Company and are not assignable or transferable by the Employee
without the written consent of the Company. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Company and the
Employee and the Employee's heirs and legal representatives, and the Company's
successors and assigns.
c) GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the law of the State of Florida, without regard to the application
of principles of conflict of laws.
d) NOTICES. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties to this Agreement addressed to the
Company at its then principal office, as notified to Employee, or to the
Employee at his address specified on page 1 of this Agreement, or to either
party hereto at such other address or addresses as he or it may from time to
time specify for such purposes in a notice similarly given. All notices and
communications shall be deemed to have been received on the date of delivery.
e) MODIFICATION; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is approved
by a duly authorized officer of the Company and is agreed to in a writing signed
by the Employee and such officer. No waiver by either party hereto at any time
of any breach by the other party hereto of, or
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compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
f) COMPLETE UNDERSTANDING. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
h) VALIDITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
i) SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and if any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid, this Agreement shall be construed as
if such invalid word or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections had not been inserted.
j) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
k) ARBITRATION. Except for disputes relating to Section 6 of this
Agreement, any and all disputes or controversies that shall arise under or in
connection with this Agreement or in any other way related to Employee's
employment by the Company, including termination of employment, shall be
submitted to a panel of three arbitrators under the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect. The parties hereby acknowledge that the Federal Arbitration Act takes
precedence over any state arbitration statutes, rules and regulations. Each of
the arbitrators shall be qualified and experienced in employment related matters
with at least one arbitrator being a licensed attorney. The arbitrators must
base their determination solely on the terms and conditions of this Agreement
and the law in the State of Florida. The arbitrators shall have the authority to
award any remedies that a court may order or grant, except that they will have
no authority to award punitive damages or any other damages not measured by the
prevailing party's actual damages, and may not, in any event, make any ruling,
finding or award that does not conform to the terms and conditions of this
Agreement. Arbitration shall be held either in Broward County or Dade County,
Florida, and the parties hereby agree to accept service of process at the
address above written and in the personal jurisdiction and venue as set out
herein. Both parties expressly covenant and agree to be bound by the decision of
the arbitrators as the final determination of the matter in dispute. Judgment
upon the award rendered by the arbitrators may be entered into any court having
jurisdiction thereof. The non-prevailing party shall pay the prevailing party's
fees and costs, including reasonable attorney fees, unless the court or panel of
arbitrators determine otherwise.
l) INDEMNIFICATION. In accordance with the Company's Articles and Bylaws,
the Company agrees to defend, indemnify and hold harmless the Employee
("Indemnified Party") for acts in his capacity as Employee to the fullest extent
permitted by Florida corporate law at
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the present time (or as such right of indemnity may be increased in the future)
including in particular and without limitation with respect to the execution and
delivery of this Agreement or Employee's accepting employment with the Company.
The Company agrees to reimburse the Indemnified Party in advance for any costs
of defending any action or investigation (including reasonable attorneys' fees
and expenses) regarding Employee's performance of her duties under this
Agreement, subject to an undertaking from the Indemnified Party to repay the
Company if the Indemnified Party is determined not to be entitled to such
indemnity by a court of competent jurisdiction; provided that, the Company shall
first have the opportunity to defend Employee so long as counsel hired by the
Company does not have a conflict with representation of both the Company and the
Employee and Employee approves of such counsel. Notwithstanding the foregoing,
the Company shall not be required to advance expenses for the defense of
Employee for any causes of action that relate to activities of Employee that the
Company in good faith determines are outside of the scope of the duties required
of Employee under this Agreement and not related to the execution and delivery
of this Agreement or Employee's accepting employment with the Company, including
without limitation, for causes of action such as sexual harassment, torts, etc.
m) Sections 5, 6 and 7 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
COMPANY:
PROXYMED, INC., EMPLOYEE:
a Florida corporation
By: _____________________________________ __________________________
Xxxxxx Blue, Chairman and C.E.O. Xxxxx X. Xxxxxx
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