[Informedix Letterhead]
October 11, 2004
Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
The purpose of this Letter Agreement ("Agreement") is to confirm the terms of
the termination of your employment relationship with Informedix, Inc.
("Informedix" or the "Company").
1. EMPLOYMENT TERMINATION. Your employment with Informedix will terminate
effective September 30, 2004 (the "Termination Date"). You and Informedix agree
that your employment termination will be treated as a resignation. The Company
will also reimburse you promptly for all of your Company business-related
expenses for which it presently has receipts, plus for additional Company
business related expenses, not in excess of $750, that you have previously
incurred but not submitted, upon presentation to the Company of receipts for
those additional expenses.
2. SEVERANCE PAY. In exchange for the covenants and release set forth in
this Agreement, Informedix agrees to pay to you $52,083.33 ("the Severance
Amount"), from which shall be deducted all state and federal income and welfare
taxes and other mandatory deductions under applicable laws ("Applicable
Deductions"), payable to you in five equal monthly installments of $10,416,67,
less Applicable Deductions, commencing on October 15, 2004, in accordance with
normal Company payroll installments and policy. You acknowledge that you are an
employee at will and that Informedix has agreed to pay the Severance Amount
solely as consideration for the covenants you make under this Agreement.
3. RELEASE OF CLAIMS.
(a) Except as provided in Section 3(c) below, you hereby agree and
acknowledge pursuant to this Agreement, that you are waiving and releasing your
right to assert any form of claim whatsoever against Informedix and its
officers, directors, employees, representatives and agents acting in those
capacities (the "Released Parties"), for any alleged action, inaction or
circumstance, known or unknown, existing or arising at any time through the date
on which you execute this Agreement by signing and returning it in accordance
with the last paragraph of this Paragraph 3 (the "Execution Date"). Your waiver
and release is intended to bar any form of legal claim, charge, complaint or any
other form of action (jointly referred to as "Claims") against the Released
Parties seeking any form of relief including, without limitation, equitable
relief (whether declaratory, injunctive or otherwise), the recovery of any
damages or any other form of monetary recovery whatsoever against the Released
Parties, for any alleged action, inaction or circumstance, known or unknown,
existing or arising at any time prior to and through the Execution Date. The
foregoing general waiver and release shall include, but not be limited to, the
following Claims arising from or related to your employment relationship with
Informedix:
(i) Claims under any local, state or federal discrimination, fair
employment practices or other employment related statute, regulation or
executive order prohibiting discrimination or harassment based upon any
protected status including, if applicable to the Company, Claims arising under
the federal Age Discrimination in Employment Act ("ADEA"), the Older Workers
Benefit Protection Act, the Civil Rights Acts of 1866 and 1871, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act and
the Americans With Disabilities Act.
(ii) Claims under any other local, state or federal employment
related statute, regulation or executive order relating to wages, hours or any
other terms and conditions of employment, including claims for unemployment
compensation arising out of your employment with Informedix. Specifically
included in this paragraph are any Claims arising under, if applicable to the
Company, the Fair Labor Standards Act, the Family and Medical Leave Act of 1993,
the National Labor Relations Act, the Employee Retirement Income Security Act of
1974, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and any
similar state statute.
(iii) Claims under any local, state or federal common law theory
including, without limitation, wrongful discharge, breach of express or implied
contract, promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation, interference
with contractual relations, invasion of privacy, misrepresentation, deceit,
fraud or negligence.
(b) Notwithstanding the foregoing, this paragraph 3 does not release
Informedix from any obligation expressly set forth in this Agreement.
4. CONFIDENTIALITY. You covenant and agree that, except with Informedix's
prior consent, you will keep confidential and not disclose either the existence
or terms of this Agreement, provided, however, you may disclose information
relating to this Agreement to members of your immediate family, accountant,
attorneys and to taxing authorities and pursuant to a lawful subpoena or other
legal compulsion served on you.
5. NON-DISPARAGEMENT; PRESS RELEASE. You agree that you will not
disseminate or publish, or cause anyone else to disseminate or publish in any
manner, disparaging, defamatory or negative remarks or comments about Informedix
or its present or past directors, officers, or employees. Informedix will
consult with you regarding the timing and content of all press releases and
public announcements made by Informedix regarding the termination of your
employment and this Agreement and will work in good faith to secure your
approval thereof, which approval shall not be unreasonably withheld.
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6. STOCK OPTIONS. Attached as Exhibit A is a list of the Stock Options
(the "Stock Options") granted to you and the number of shares that may be
purchased by you under those Options (the "Vested Options") as of the
Termination Date. You hereby acknowledge and agree that all other unvested
options under the Stock Options are hereby terminated and that you have no right
or entitlement to receive any additional Stock Options or other capital stock as
security of the Company. The terms of the Stock Options and the Stock Option
plans under which they were issued (the "Stock Plans") shall remain in full
force and effect and be unmodified, except that the Company hereby agrees that
the period in which the Vested Options may be exercised by you shall be extended
to 5:00 p.m., E.S.T. on March 31, 2005. The foregoing shall not alter or affect
the rights you have in the shares of Company common stock currently issued to
you.
7. NON-ADMISSION OF LIABILITY. We have entered into this Agreement to
effect a mutually acceptable termination of our employment relationship and any
disputes between us. In so doing, neither Informedix nor you admit or
acknowledge in any way, any wrongdoing or misconduct.
8. TRANSITION SERVICES. You agree, without additional compensation, to
reasonably cooperate with the transition of your duties to other Informedix
officers, directors and employees as Informedix's chief executive officer or
Board of Directors may request.
9. CONTINUED PROTECTION OF ▇▇▇▇▇▇▇▇▇▇'S CONFIDENTIAL INFORMATION AND TRADE
SECRETS / NON-COMPETITION.
(a) You expressly agree to and acknowledge that:
(i) Upon request by the Company, you will return to Informedix or
destroy all notes or other documents (in whatever form or medium) that relate to
Informedix that were made or compiled by you in the course of or relating to
your employment with the Company, or that were made available to you while
employed by the Company (and any copies thereof, including computer data or
files) and all other Company property.
(ii) The terms and conditions of Sections 10 (Corporation's Rights
to Intellectual Property) and 11 (Protection of Information) of the Employment
Agreement dated June 18, 2001, as amended between you and the Company and any
other confidentiality or non-disclosure agreement you have with the Company will
remain in effect in accordance with their respective terms.
(iii) You hereby agree to be bound by the non-competition and
non-solicitation covenants set forth on Exhibit B hereto.
(b) In the event you breach any of the covenants in this Section 9,
in addition to any other remedies the Company may have, the Company shall be
entitled to obtain temporary, preliminary, and/or permanent injunctive relief,
or any other equitable remedy which then may be available.
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10. CONSULTATION WITH COUNSEL/VOLUNTARY EXECUTION. You have the right to
consult with counsel of your choosing about this Agreement before you decide
whether or not to sign it, and we urge you to do so. By signing this Agreement,
you acknowledge that you have carefully read and fully understand all of the
provisions of this Agreement and that you are entering into it voluntarily.
11. GOVERNING LAW/INTERPRETATION/ENFORCEABILITY. This Agreement shall be
deemed to have been made in Maryland, and the validity, interpretation and
performance of this Agreement shall be governed by, and construed in accordance
with, the internal law of Maryland, without giving effect to conflict of law
principles. You agree that any dispute between you and the Company regarding
this Agreement shall first be addressed by mediation entered into in good faith
by both parties. If that mediation does not timely resolve that dispute, either
party may bring an action for breach of this Agreement or otherwise to enforce
this Agreement. Such action shall be filed and maintained only in court in the
state of Maryland with subject matter jurisdiction thereof and that you and
Informedix each agree to submit to, and not to contest, the personal
jurisdiction of such court in any such action. . You and Informedix further
agree that in the event mediation is not successful in resolving that dispute,
any action, demand, claim or counterclaim relating to that dispute shall be
resolved by a judge alone, and each of us hereby waives and forever renounces
the right to a trial before a civil jury.
12 ENTIRE AGREEMENT; SEVERABILITY. This Agreement, including the Stock
Options and Stock Plans, set forth the entire understanding between you and
Informedix, and fully supersedes any and all prior agreements or understandings
between us pertaining to the subject matter of this Agreement. You and
Informedix each agree and acknowledge that in deciding to enter into this
Agreement we are not relying on any statements, representations, or promises
other than those contained herein. This Agreement may not be modified except by
a writing, which has been signed by each of us. The terms of this Agreement are
several, and if for any reason any part hereof shall be found to be
unenforceable, the remaining terms and conditions shall be enforced in full.
If the foregoing correctly sets forth our understanding, please sign, date
and return the enclosed copy of this letter to me.
Very truly yours,
Informedix, Inc.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇, MD.
Chairman and CEO
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ACCEPTED AND AGREED TO:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated: 10/12/04
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Exhibit A
Stock Option Agreement
Vested Options:
1. NQSO's pursuant to 2003 Stock Incentive Plan - 100,000 options exercisable
at $1.00 per share.
2. Compensation Options (paid in lieu of cash) - 241,052 options exercisable
at $1.00 per share.
3. Compensation Options (paid for deferred payment of cash) - 43,582 options
exercisable at $.37
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Exhibit B
Non-Competition and Non-Solicitation Covenants
Non-Compete. You agrees that during the period of twelve (12) months following
the Termination Date (the "Restriction Period"), you will not enter the employ
of, directly or indirectly, or serve as an officer, director, employee,
consultant, owner, partner, stockholder, agent, or in any other capacity, of or
for, any person, company, or entity (each a "Person") that (i) owns, controls,
manufactures, provides, sells, leases, markets, licenses, and/or distributes
devices and/or products that hold or provide medication, and/or devices,
products and/or programs that prompt for, or ascertain medication compliance or
capture data in clinical trials or (ii) is in the business of developing devices
that are used for prompting patients to follow a protocol and/or to record
patient data in the clinical trial or disease management markets. Your ownership
of shares representing less than 5 percent of the outstanding voting securities
of a publicly traded corporation shall not be deemed to violate this covenant.
Non-Solicitation of Employees. During the Restriction Period, you shall not
directly or indirectly contact, induce or solicit (or assist any Person to
contact, induce or solicit) for employment any person who is, or within three
(3) months prior to the date of such solicitation was, an employee of the
Company or any of its affiliates. The foregoing shall not restrict you from
communicating with employees of the Company on matters not referenced herein.
Non-Solicitation of Customers. During the Restriction Period, you shall not (i)
attempt to induce or solicit (or assist any Person to attempt to induce or
solicit) any Person which has a business relationship with the Company or any of
its affiliates to terminate, curtail or otherwise limit that business
relationship with the Company.
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