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EXHIBIT 10.21
EMPLOYMENT AGREEMENT
AGREEMENT (this "Agreement"), dated as of August 7, 1996, by
and between CAREADVANTAGE, INC., a Delaware corporation having its principal
place of business at 000-X Xxxxx 0 Xxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000 (the
"Company"); and XXXXXXX X. XXXXXXX, having a residence at 0 Xxxxx Xxxxx,
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000 (the "Employee").
W I T N E S S E T H
WHEREAS, the Company is desirous of employing the Employee as
its Vice President, Treasurer, Secretary and Chief Financial Officer; and
WHEREAS, the Employee is desirous of being so employed by the
Company.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and undertakings of the parties hereto,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Employee as its
Vice President, Treasurer, Secretary and Chief Financial Officer to perform such
duties as are consistent with the Employee's title and such other related duties
as the Board of Directors of the Company (the "Board") shall otherwise request
from time to time.
(b) The Employee shall devote his best efforts and
full business time to his duties hereunder and the business and affairs of the
Company, which the parties hereto agree shall not be less than forty (40) hours
a week.
2. COMPENSATION. As compensation for his services to the
Company hereunder, the Company shall pay to the Employee the following:
(a) Base Salary. The Employee shall receive a base
salary at the rate of not less than One Hundred Seventy-Five Thousand Dollars
($175,000) per annum (the "Base Salary"), payable in accordance with the normal
payroll practices of the Company.
(b) Stock Options. The Company hereby grants to the
Employee options (the "Options") to purchase up to Two Million Four Hundred
Thousand (2,400,000) fully paid and nonassessable shares of the Company's common
stock (the "Common Stock"), at an exercise
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price of $.13 per share, constituting the market price on July 24, 1996 when the
Board agreed to grant the Options to the Employee under a new stock option plan
adopted by the Board and to be submitted to the stockholders of the Company for
ratification. The Options shall vest and become exercisable as hereinafter set
forth:
(i) With respect to Options to purchase Two
Million (2,000,000) shares of Common Stock (subject to adjustment), Six Hundred
Sixty-Six Thousand Six Hundred Sixty-Eight (666,668) shares of Common Stock
shall vest and be immediately exercisable upon the date hereof, while Six
Hundred Sixty-Six Thousand Six Hundred Sixty-Six (666,666) shares of Common
Stock shall vest and become exercisable upon the first and second anniversary of
the Effective Date; and
(ii) On the anniversary of the Effective
Date for each year of the Term (as such term is defined in Section 3 hereof),
Options to purchase One Hundred Thousand (100,000) shares of Common Stock
(subject to adjustment) per year, shall vest and become exercisable if
performance targets for the Company set by the Board are satisfied.
3. TERM. The Company hereby agrees to employ the Employee as
Vice President, Treasurer, Secretary and Chief Financial Officer of the Company
for a period of four (4) years (the "Initial Period") commencing as of August 7,
1996 (the "Effective Date") and ending on August 6, 2000, subject to earlier
termination of such employment hereunder as provided in this Agreement. After
the expiration of the Initial Period, the Employee's employment hereunder shall
be automatically extended for successive, additional (1) year periods (each such
period, an "Extension Period"), unless and until such employment hereunder shall
have been terminated as provided in this Agreement. Notwithstanding the
foregoing, this Section 3 shall in no manner limit the right of the Company or
the Employee to terminate the Employee's employment hereunder in accordance with
Section 6 hereof.
4. BENEFITS. Subject to the provisions of this Agreement, the
Company shall provide the following benefits to the Employee for services
rendered during the Term:
(a) Insurance Benefits. The Employee shall be
entitled to participate in, and receive benefits under, the following insurance
benefit programs and plans provided by the Company: medical insurance, dental
insurance, term life insurance and disability insurance, as in effect from time
to time. The Employee shall also be entitled to such other insurance benefits of
the Company when and as such benefits may be in effect from time to time and are
generally available to employees at the senior executive level. In addition,
nothing herein shall preclude the Employee from receiving any additional
compensation in the form of salary, bonuses or otherwise or from participating
in any future benefit plan for employees of the Company, in each case as and to
the extent approved and determined by the Board.
(b) Retirement Benefits. The Employee shall be
entitled to participate in, and receive benefits under, the following retirement
benefit program provided by the Company: the Company's 401(k) savings program.
The Employee shall also be entitled to such
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other retirement benefits of the Company when and as such benefits may be in
effect from time to time and are generally available to employees at the senior
executive level.
(c) Vacation. The Employee shall be entitled to an
aggregate of not less than four (4) weeks of paid vacation for each twelve (12)
month period commencing with the Effective Date during the Employee's employment
hereunder, which vacation must be taken by the Employee during the twelve (12)
month period in which it is earned.
(d) Sick Leave. The Employee shall be entitled to
such sick leave as determined in accordance with applicable Company policies as
established by the Company's Board, from time to time.
5. EXPENSES.
The Employee is hereby authorized to incur necessary
and reasonable travel and business-related expenses incurred in the performance
of his duties hereunder, and the Company, upon the Employee's presentation from
time to time of appropriate documentation evidencing such expenses, shall either
pay directly or reimburse the Employee for such expenses, all as in accordance
with applicable Company policies as established by the Company's Board.
6. TERMINATION OF EMPLOYMENT. The following provisions set
forth the terms and conditions pursuant to which the employment of the Employee
hereunder may be terminated:
(a) The employment of the Employee hereunder shall be
terminated upon the death of the Employee.
(b) The employment of the Employee hereunder may be
terminated by the Company or the Employee by notice given to the other party not
less than three (3) months prior to the expiration of the Initial Period or the
then current Extension Period, as the case may be, and such employment shall be
terminated effective as of the expiration of such Period.
(c) The employment of the Employee hereunder may be
terminated by the Company in the event of the occurrence of any of the following
conditions or events:
(i) failure of the Employee to perform his
duties hereunder as a result of physical or mental incapacity for either a
continuous period of three (3) months or a total of four (4) out of any six (6)
consecutive months (performance of duties for a period of less than two (2)
weeks shall not be deemed to interrupt an otherwise continuous period) (any
dispute as to the Employee's incapacitation shall be resolved by an independent
physician, reasonably acceptable to the Employee and the Board, whose
determination shall be final and binding upon both the Employee and the
Company);
(ii) failure of the Employee to perform his
duties hereunder, other than as a result of physical or mental incapacity, after
a demand for performance is delivered
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to the Employee by the Board and the Employee's failure to cure such
nonperformance within thirty (30) days of such demand;
(iii) commission by the Employee of any act
(including, without limitation, acts of moral turpitude or excessive absenteeism
not related to illness or vacations) that is damaging or detrimental to, or that
could be expected to be damaging or detrimental to, the Company, its business or
reputation (whether such action is in performance of his duties hereunder or
otherwise);
(iv) the conviction of the Employee of a
felony; or
(v) any other material breach of this
Agreement by the Employee.
Upon or after the date of occurrence of any of the events or conditions
described above, the Company may deliver written notice to the Employee of its
election to terminate his employment hereunder.
(d) Resignation. The Employee may at any time
terminate his employment hereunder by giving the Company three (3) months prior
written notice of his resignation, delivered to the Board.
(e) Without Cause. The employment of the Employee
hereunder may be terminated by the Company without cause, in its sole and
absolute discretion.
7. SEVERANCE. In the event that the Employee's employment
hereunder is terminated, from and after the effective date of such termination,
the Company shall be under no further liability or obligation of any kind
whatsoever to the Employee, except as set forth as follows:
(a) Death, Resignation and Without Cause. In the
event such termination occurs pursuant to Sections 6(a), (d) and (e) hereof (or,
in the event of a termination pursuant to Section 6(a) hereof, the Employee's
estate or legal representative) shall be entitled to receive from the Company
within forty-five (45) days of such date of termination: (i) the Base Salary for
services rendered up to the effective date of termination; plus (ii) one hundred
(100%) percent of the Employee's Base Salary for the six (6) month period
immediately succeeding such date of termination; (iii) reimbursement for
expenses incurred by the Employee pursuant to Section 5 hereof up to the
effective date of termination; and (iv) any and all compensation or benefits
that have accrued up to the effective date of termination (the payments and
benefits set forth in subclauses (i) through (iv) above, collectively the "Basic
Severance Benefits").
(b) No Extension and For Cause. In the event that
such termination occurs pursuant to Sections 6(b) and 6(c) hereof, then the
Employee shall be entitled to receive the Basic Severance Benefits; provided,
however, that the Employee shall not be eligible to receive any payment as set
forth in Section 7(a)(ii) hereof.
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8. INDEMNIFICATION.
(a) The Company shall indemnify, defend and hold the
Employee harmless, to the maximum extent permitted by law, against all
judgments, fines, amounts paid in settlement and all reasonable expenses,
including attorneys' fees incurred by the Employee, in connection with the
defense of, or as a result of any action or proceeding (or any appeal from any
action or proceeding) in which the Employee is made or is threatened to be made
a party by reason of the fact that the Employee is or was an officer of the
Company, regardless of whether such action or proceeding is one brought by or in
the right of the Company, to procure a judgment in its favor (or other than by
or in the right of the Company). In connection with the Company's defense of the
Employee pursuant to this Section 8(a), the Company hereby covenants that it
shall not agree to any compromise or settlement without the prior written
consent of the Employee, that any counsel retained or employed by the Company
shall be reasonably acceptable to the Employee, and that the Employee shall have
the right to participate in any such defense. Each of the parties hereto shall
give prompt notice to the other of any action or proceeding from which the
Company is obligated to indemnify, defend and hold harmless the Employee of
which it or he (as the case may be) gains knowledge.
(b) The Company hereby represents and warrants that
the Employee is and covenants that the Employee shall continue to be covered and
insured up to the maximum limits provided by all insurance which the Company
maintains to indemnify its officers (and to indemnify the Company for any
obligations which it incurs as a result of its undertaking to indemnify its
officers).
9. ARBITRATION. Any dispute, controversy or claim between the
parties hereto arising out of or relating to this Agreement (except with respect
to any disputes, controversies or claims arising under or with respect to
Sections 11 and 12 hereof), either during or after the Term, shall be settled by
arbitration conducted in the State of New Jersey, in accordance with the
Commercial Rules of the American Arbitration Association then in force (the
"Rules") and New Jersey law. In the event that one party hereto requests
arbitration, it shall serve upon the other party hereto (the "Non-Requesting
Party") a written demand for arbitration stating the substance of the
controversy, dispute or claim, the contention of the party requesting
arbitration and the name and address of the arbitrator appointed by them. The
Non-Requesting Party, within twenty (20) days after receipt of such demand,
shall accept the arbitrator appointed by the other party or shall appoint an
arbitrator and notify the other party of the identity of the arbitrator so
selected in which case the two (2) arbitrators shall appoint a third. The
decision or award of the single arbitrator or, in the case of three (3)
arbitrators, the decision or award of any two (2) of the three (3) arbitrators
shall be final and binding upon the parties hereto. In the event that the two
(2) arbitrators fail in any instance to appoint a third arbitrator within twenty
(20) days of the appointment of the second arbitrator, either arbitrator or
either party hereto may apply to the American Arbitration Association for
appointment of the third arbitrator in accordance with the Rules. Should the
Non-Requesting Party fail or refuse to accept the arbitrator appointed by the
other party and fail or refuse to appoint an arbitrator within twenty (20) days
after receipt of the demand for arbitration, the single arbitrator shall have
the right to decide the dispute, controversy
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or claim alone, and such arbitrator's decision or award shall be final and
binding upon the parties. The decision of the arbitrator or arbitrators shall be
in writing and shall set forth the basis therefor. The parties hereto shall
abide by all awards rendered in such arbitration proceedings and all such awards
may be enforced and executed upon in any court having jurisdiction over the
party against whom enforcement of such award is sought.
10. SEVERABILITY. It is the intention of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies of each state and jurisdiction in which such
enforcement is sought, but that the unenforceability (or the modification to
conform with such laws or public policies) of any provisions hereof, shall not
render unenforceable or impair the remainder of this Agreement. Accordingly, if
any provision of this Agreement shall be determined to be invalid or
unenforceable, either in whole or in part, this Agreement shall be deemed
amended to delete or modify, as necessary, the offending provisions and to alter
the balance of this Agreement in order to render the same valid and enforceable
to the fullest extent permissible.
11. NON-DISCLOSURE. The Employee shall not, at any time during
or following the period of his employment by the Company, disclose, use,
transfer or sell, except in the course of his employment by the Company
hereunder, any confidential information or proprietary data of the Company or
any of its subsidiaries so long as such information or data remains confidential
and has not been disclosed or is not otherwise in the public domain, except as
required by law or pursuant to legal process or in connection with an
administrative proceeding before a governmental agency.
12. NONCOMPETITION AGREEMENT. For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, during the period of the Employee's employment by the
Company and for a period of six (6) months after the effective date of the
termination of the Employee's employment by the Company hereunder, the Employee
shall not, directly or indirectly: (a) work for, consult with, or provide any
services to an entity or individual which provides utilization
review/utilization management and/or disease management services that are
similar to those services rendered by the Company or any affiliate and/or the
other services that are or may be reasonably expected to be provided by the
Company or any affiliate from time to time, in any geographic area the Company
or any affiliate is providing or is contracted to provide such services; (b)
induce or attempt to induce any officers, employees, representatives or agents
of the Company or any affiliate to terminate or modify their relationship with
the Company or any affiliate or to violate any of the provisions of their
agreements with the Company or any affiliate; or (c) solicit, entice away, or
otherwise interfere with the relationship of the Company or any affiliate with
any customers, distributors or suppliers of the Company or any affiliate.
13. EQUITABLE RELIEF. The Employee hereby acknowledges that
the services to be rendered by him are of a special, unique and extraordinary
character, that it would be very difficult or impossible to replace such
services and that the other material provisions of this Agreement (including,
without limitation, Sections 11 and 12 hereof) are of crucial importance
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to the Company. Accordingly, the Employee hereby acknowledges and agrees that if
he breaches or threatens to commit a breach of any of the material provisions
hereof, the Company shall have the following rights and remedies, each of which
rights and remedies shall be independent of the others and severally
enforceable, and each of which is in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity:
(a) The right and remedy to have the Employee
enjoined (whether by temporary restraining order, temporary injunction or
permanent injunction) (without the posting of any bond or security) by any court
of competent jurisdiction from breaching or continuing to breach any material
provision hereof, it being agreed that any breach or threatened breach of any
material provision hereof would cause irreparable injury to the Company and that
money damages would not provide an adequate remedy to the Company.
(b) The right and remedy to have the material
provisions hereof specifically enforced by any court of competent jurisdiction,
it being agreed that any breach or threatened breach of any material provision
hereof would cause irreparable injury to the Company and that money damages
would not provide an adequate remedy to the Company.
(c) The right and remedy to require the Employee to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by the Employee as
the result of any action or transaction constituting a breach of any material
provision hereof.
(d) The right and remedy to require the Employee to
account for and pay over to the Company all costs and expenses incurred by the
Company resulting from the Employee's breach of any material provision hereof
(including, without limitation, reasonable attorneys' fees and expenses in
dealing with his breach or any suits or actions with regard thereto) and for all
damages (compensatory along with punitive) that may be awarded in connection
therewith.
14. NO CONFLICT. The Employee and the Company each hereby
represents and warrants to the other that the execution, delivery and
performance of this Agreement by him or it (as the case may be) shall not
violate any agreement or other obligation of any kind, written or oral, to which
he or it (as the case may be) is subject.
15. SURVIVAL. The provisions of Sections 11 and 12 hereof
shall expressly survive the expiration or termination hereof, regardless of the
reasons therefor.
16. ASSIGNMENT. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder, except that the
Company shall have the right to sell, assign or otherwise transfer its rights
and obligations under, and interest in, this Agreement at any time in connection
with (a) a transfer to a parent, subsidiary or affiliate, (b) a reorganization,
(c) a merger, consolidation or other business combination or (d) a sale of
substantially all of its assets
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(whether through asset or stock sale or otherwise). This Agreement and all of
the provisions hereof shall be binding upon, and inure to the benefit of, the
parties hereto and their successors (including successors by merger,
consolidation or similar transactions), permitted assigns, executors,
administrators, personal representatives, heirs and distributees.
17. MISCELLANEOUS.
(a) Notices. All notices hereunder shall be given in
writing by personal delivery (which shall include delivery by express couriers
such as Federal Express), telex, telecopy or prepaid registered or certified
mail, return receipt requested, to the addresses of the proper parties as set
forth below:
To the Employee: Xx. Xxxxxxx X. Xxxxxxx
0 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
To the Company: CareAdvantage, Inc.
000-X Xxxxx 0 Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Chief Executive Officer
with copy to: Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Any notice given as aforesaid shall be deemed received upon actual delivery. Any
party hereto (or any person designated to receive a copy of any notice) may
change his or its (as the case may be) designated address by notice served as
herein set forth upon the other party designated to receive notice.
(b) Law Governing. This Agreement shall be governed
by and construed in accordance with the laws of the State of New Jersey
applicable to contracts made and to be wholly performed in that state.
(c) Headings. The section headings contained in this
Agreement are for convenience of reference only and are not intended to
determine, limit or describe the scope or intent of any provision of this
Agreement.
(d) Entire Agreement. This Agreement contains the
entire understanding between the parties with respect to the subject matter
hereof and supersedes any prior or contemporaneous understandings and
agreements, written or oral, between them respecting such subject matter.
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(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but both of which taken
together shall constitute one instrument.
(f) Amendments. This Agreement may not be amended
except by a writing executed by the party against whom or which such amendment
is to be enforced.
IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be signed as of the day and year first above written.
CAREADVANTAGE, INC.
By:
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Print Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
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Xxxxxxx X. Xxxxxxx
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