Exhibit 10.11
Employment Agreement with Xxxxxx X. Xxxx,
dated September 1, 1999
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and effective
as of September 1, 1999 (the "Effective Date"), by and between
Xxxxxxxxxxxxxxxx.xxx, Inc., a California corporation ("Company"), and Xxxxxx
X. Xxxx, an individual ("Employee").
RECITALS
A. Company is engaged in the business of providing internet healthcare
information and services, and maintains an office in the State of California.
B. Company desires to have an employment agreement with Employee as its
President subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto hereby agree as follows:
AGREEMENT
1. Term and Duties. Company hereby employs Employee as President as of the
Effective Date and Employee agrees to enter into and remain in the employ of
Company until this Agreement is terminated as provided herein below. Employee
shall faithfully and diligently perform all professional duties and acts as
Secretary and Treasurer as may be requested and required of Employee by
Company or its Directors. Employee shall devote such time and attention to
the business of Company as shall be required to perform the required services
and duties. Employee at all times during the employment term shall strictly
adhere to and obey all policies, rules and regulations established from time
to time governing the conduct of employees of Company.
2. Exclusivity, Non-Disclosure.
a. Employee agrees to perform Employee's services efficiently and to the best of
Employee's ability. Employee agrees throughout the term of this Agreement to
devote his time, energy and skill to the business of the Company and to the
promotion of the best interests of the Company.
b. Employee agrees that he shall not at any time, either during or subsequent
to his employment term, unless expressly consented to in writing by Company,
either directly or indirectly use or disclose to any person or entity any
confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of Company, including, but not
limited to, information concerning the customers of Company, Company's
marketing methods, compensation paid to employees, independent contractors or
suppliers and other terms of their employment or contractual relationships,
financial and business records, know-how, or any other information concerning
the business of Company, its manner of operations, or other data of any kind,
nature or description. Employee agrees that the above information and items
are important, material and confidential trade secrets and these affect the
successful conduct of Company's business and its goodwill.
3. Compensation.
a. Subject to the termination of this Agreement as provided herein, Company
shall compensate Employee for his services hereunder at a monthly salary of
twelve thousand dollars ($12,000) payable in accordance with the Company's
practices, less normal payroll deductions, and prorated for the actual
employment term.
b. Employee is also eligible to receive such additional compensation as the
Board of Directors of Company determines is proper in recognition of Employee's
contributions and services to Company. Such additional compensation shall be
paid to Employee on the anniversary date of this Agreement during the Employment
Term, and at such other times as may be determined by the Board of Directors.
c. In addition to the compensation set forth above, Employee shall be entitled
to participate in or to receive benefits under all of Company's employee benefit
plans made available by Company now or in the future to similarly situated
employees, subject to the terms, conditions and overall administration of such
plans.
4. Expenses. Company shall reimburse Employee for all reasonable business
related expenses incurred by Employee in the course of his normal duties on
behalf of the Company. In compensating Employee for expenses, the ordinary and
usual business guidelines and documentation requirements shall be adhered to by
Company and Employee.
5. Vacation. Employee shall be entitled to accrue four (4) vacation weeks with
pay during each employment year, to be taken at such times as may be convenient
to Company and Employee. Any vacation time not used in any one year may be
carried forward to subsequent employment years. For purposes of this Agreement,
"employment years" shall mean the successive one (1) year periods beginning on
the Effective Date of this Agreement and on each anniversary date of the
Effective Date of this Agreement during the term of this Agreement.
6. Inventions and Patents. All processes, inventions, patents, computer
software, copy rights, trademarks and other intangible rights (collectively
referred to as "Intellectual Property") that may be conceived or developed by
Employee during the Employment Term, either alone or with others, made or
conceived by him shall remain the sole property of Company.
7. Disability of Employee.
a. Employee shall be considered disabled if, due to illness or injury, either
physical or mental, Employee is unable to perform Employee's customary duties as
an employee of Company for more than thirty (30) days in the aggregate out of a
period of twelve (12) consecutive months. The disability shall be determined by
a certification from a physician.
b. If Employee is determined to be disabled, Company shall continue to pay
Employee's base salary for the initial ninety (90) days of "disability." The
continuation of the salary compensation after the initial ninety (90) days shall
be determined by the Board of Directors of the Company.
8. Termination By Company.
a. Unless terminated earlier as provided in this Agreement, Employee shall be
employed for a term commencing on the Effective Date and ending three (3) years
thereafter. Thereafter, the employment term shall continue on an at will basis
until terminated at the option of Company or Employee upon thirty (30) days'
prior written notice. This Agreement will terminate immediately upon Employee's
death.
b. Company may terminate this Agreement for cause at any time without notice.
For purposes of this Agreement, the term "cause" shall include, but not be
limited to, the following: a material breach of or failure to perform any
covenant or obligation in this Agreement, disloyalty, dishonesty, neglect of
duties, unprofessional conduct, acts of moral turpitude, disappearance,
felonious conduct or fraud.
c. If Company terminates this Agreement without cause, Employee shall receive
liquidated damages in accordance with Section 15 herein.
9. Termination By Employee.
a. Employee may terminate this Agreement without cause upon thirty (30) days
prior written notice to Company.
b. Employee may terminate this Agreement immediately with cause, in which event
Employee shall receive liquidated damages in accordance with Section 15 herein.
For the purposes of this Agreement, "cause" for termination by Employee shall be
a breach of any material covenant or obligation hereunder, the voluntary or
involuntary dissolution of the Company, any merger or consolidation in which the
Company is not the surviving or resulting corporation, any transfer of all or
subsequently all of the assets of Company, transfer of a majority of shares of
the Company by one or more shareholders in one or more transactions, or the
issuance of shares of Company constituting a majority of the outstanding shares
immediately following such issuance.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto their respective devisees, legatees, heirs, legal
representatives, successors, and permitted assigns. The preceding sentence shall
not affect any restriction on assignment set forth elsewhere in this Agreement.
11. Effect of Combination or Dissolution. This Agreement shall not be terminated
by the voluntary or involuntary dissolution of Company, or by any merger or
consolidation in which Company is not the surviving or resulting corporation, or
upon any transfer of all or substantially all of the outstanding shares or
assets of Company. Instead, the provisions of this Agreement shall be binding on
and inure to the benefit of Company's creditors, the surviving business entity
or the business entity to which such shares or assets shall be transferred.
12. Assignment. Subject to all other provisions of this Agreement, any attempt
to assign or transfer this Agreement or any of the rights conferred hereby, by
judicial process or otherwise, to any person, firm, Company, or corporation
without the prior written consent of the other party, shall be invalid, and may,
at the option of such other party, result in an incurable event of default
resulting in termination of this Agreement and all rights hereby conferred.
13. Choice of Law. This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
14. Indemnification. Company shall indemnify, defend and hold Employee harmless,
to the fullest extent permitted by law, for all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney's fees that Employee shall
incur or suffer that arise from, result from or relate to the discharge of
Employee's duties under this Agreement. Company shall maintain adequate
insurance for this purpose or shall advance Employee any expenses incurred in
defending any such proceeding or claim to the maximum extent permitted by law.
15. Liquidated Damages. In the event of any material breach of this Agreement by
Company, Employee at his sole option, may terminate this Agreement and, at his
sole option, receive as liquidated damages (the "Liquidated Damages") one of the
following:
a. The full amount of the salary and incentive compensation provided for in
Section 3 of this Agreement for the remaining term of this Agreement. The sum
payable to Employee under this Section shall be payable in monthly installments
on the first day of each month, beginning one month following the date of
termination of employment.
b. The Liquidated Damages shall not be limited or reduced by amounts that
Employment might otherwise earn or be able to earn during the period between
termination of his employment under this Agreement and payment of the Liquidated
Damages. The provisions of this Section shall be in addition to any and all
rights Employee may have in equity or at law to require Company to comply with
or to prevent the breach by Company of this Agreement.
16. Jurisdiction. The parties submit to the jurisdiction of the Courts of the
County of Orange, State of California for the resolution of all legal disputes
arising under the terms of this Agreement, including, but not limited to,
enforcement of any arbitration award.
17. Entire Agreement. Except as provided herein, this Agreement, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations, or agreements and all other oral,
written, or other communications between them concerning the subject matter of
this Agreement. There are no representations, agreements, arrangements, or
understandings, oral or written, between and among the parties hereto relating
to the subject matter of this Agreement that are not fully expressed herein.
18. Severability. If any provision of this Agreement is unenforceable, invalid,
or violates applicable law, such provision, or unenforceable portion of such
provision, shall be deemed stricken and shall not affect the enforceability of
any other provisions of this Agreement.
19. Captions. The captions in this Agreement are inserted only as a matter of
convenience and for reference and shall not be deemed to define, limit, enlarge,
or describe the scope of this Agreement or the relationship of the parties, and
shall not affect this Agreement or the construction of any provisions herein.
20. Modification. No change, modification, addition, or amendment to this
Agreement shall be valid unless in writing and signed by all parties hereto.
21. Attorneys' Fees. Except as otherwise provided herein, if a dispute should
arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
22. Taxes. Any income taxes required to be paid in connection with the payments
due hereunder, shall be borne by the party required to make such payment. Any
withholding taxes in the nature of a tax on income shall be deducted from
payments due, and the party required to withhold such tax shall furnish to the
party receiving such payment all documentation necessary to prove the proper
amount to withhold of such taxes and to prove payment to the tax authority of
such required withholding.
23. Not for the Benefit of Creditors or Third Parties. The provisions of this
Agreement are intended only for the regulation of relations among the parties.
This Agreement is not intended for the benefit of creditors of the parties or
other third parties and no rights are granted to creditors of the parties or
other third parties under this Agreement. Under no circumstances shall any third
party, who is a minor, be deemed to have accepted, adopted, or acted in reliance
upon this Agreement.
24. Counterparts; Facsimile Signatures. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
25. Conflict Waiver. Both Employee and the Company (the "Parties") hereby agree
and acknowledge that the law firm of Xxxxxxx and Beam ("H&B"), which represents
the Company, has drafted this Agreement. The Parties hereto further acknowledge
that they have been informed of the inherent conflict of interest associated
with the drafting of this Agreement by H&B and waive any action they may have
against H&B regarding such conflict. The Parties have been given the opportunity
to consult with counsel of their choice regarding their rights under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date.
"Company" "Employee"
Xxxxxxxxxxxxxxxx.xxx, Inc., Inc.,
a California corporation
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
BY: Xxxxxx X. Xxxx Xxxxxx X. Xxxx
ITS: President
Confirmed authorized by Board of Directors:
/s/ Xxxxxx X. Xxxxxxxx
BY: Xxxxxx X. Xxxxxxxx
ITS: Secretary