June 3, 2005
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
This is to confirm the discussions that we have had regarding amending
your employment agreement (the "Employment Agreement") with IntegraMed America,
Inc. (the "Company") dated January 14, 1994. We have agreed to amend the
Employment Agreement to provide for your continuing role with the Company upon
your resignation as Chief Executive Officer ("CEO") of the Company. Accordingly,
the Employment Agreement is hereby amended to add new paragraphs 20 and 21 as
follows:
"20. Beginning January 1, 2006 you are eligible to resign as CEO and in
the event of such resignation you will give the Company no less than 30
days prior written notice of your intention to resign. Effective as of
the end of such 30-day notice (the "Resignation Date"), you agree to
(a) continue, at the pleasure of the Board, in the role as Chairman of
the Board, subject to your election by the shareholders as a director,
and (b) serve as a consultant to the Company, all for a period of three
(3) years under the following terms and conditions:
20.1 In consideration of your serving as a consultant to the
Company you will be paid One Hundred Twenty-Five Thousand
($125,000.00) Dollars annually in monthly installments of Ten
Thousand Four Hundred Sixteen Dollars and Sixty-Seven Cents
($10,416.67) for each year of the Term for a total of Three
Hundred Seventy-Five Thousand Dollars ($375,000.00). As a
consultant to the Company, you agree to provide consulting
services as requested by the then CEO, but in no event will you be
asked to provide consulting services for more than 50 days during
any one-year period during the Term. The payments provided for in
this paragraph 20.1 are to be paid irrespective of your serving as
Chairman of the Board.
20.2 The Board of Directors may nominate you to be a director,
subject to election by the Shareholders, for each of the three (3)
Annual Meetings of shareholders subsequent to your resignation as
CEO.
20.3 For a period of five years after the Resignation Date, you
and your covered dependent will continue to be covered under the
Company benefits coverage applicable to active employees (medical
insurance and group life insurance), on the same basis as other
senior company executives with you contributing the non-company
portion of the monthly premuiums.
20.4 During the Term, as defined in Paragraph 20.10 below, all
unexercised Company options that you hold as of the date of your
resignation will continue with the same effect as if you were
still employed by the Company without the obligation to exercise
such options within 90 days after your resignation. Such options
will expire, however, 90 days after cessation of your role as a
consultant to the Company or Chairman of the Board, whichever is
later.
20.5 Payment on Early Termination.
20.5.1 If your role as a consultant to the Company is
terminated because of your death or permanent disability, the
remaining payments due to you through the Term shall be paid to
you or your estate, whichever is applicable, within 60 days of
written notification to Company of your death or permanent
disability.
20.5.2 If your role as a consultant to the Company is
terminated because of a conflict-of-interest as described herein
under Other Employment, the fee provided for in paragraph 20.1
shall be paid to the date of a written notice from the Company to
you notifying you of termination due to a conflict-of-interest.
20.5.3 If your role as a consultant to the Company is
terminated by the Company because of your discharge for "Cause,"
which shall be limited to your willful breach of duty of loyalty
to, or commission of an act of fraud or dishonesty upon the
Company, the fee provided for in paragraph 20.1 shall be paid only
to the date of discharge for Cause. Upon termination for Cause,
the Company shall retain whatever rights, if any, it may have
against you under this Agreement or otherwise.
20.5.4 If your role as a consultant to the Company is
terminated by the Company without cause, the fee provided for in
paragraph 20.1 hereunder shall be paid through the expiration date
of the Term in regular monthly installments as provided for in
paragraph 20.1 hereof.
20.5.5 If your role as Chairman of the Board is terminated
because the Board fails to nominate you to be a director or
re-elect you as Chairman during the Term, you will be paid the
balance of the fee provided for in paragraph 20.1 through the
expiration date of the Term in regular monthly installments as
provided for in paragraph 20.1 hereof.
20.6 Other Employment.
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20.6.1 During the Term and for a period of one (1) year
thereafter, you agree not to be employed by or serve as a consultant
to, officer or director of any person or business or have an ownership
interest in a business that engages in business or management services
competitive to services provided by the Company.
20.6.2 You agree to disclose to the Company's then CEO or
his designee any other employment, whether as an employee, consultant, director
or other agent of any other person, firm or corporation for the purpose of the
Board of Directors determining in its sole discretion whether or not there is,
or may be, a conflict-of-interest with your engagement by the Company. It is
acknowledged and agreed that you currently serve as a Director of Dendreon
Corporation which is not a conflict of interest with your role with IntegraMed.
20.7 Expenses. The Company shall pay or reimburse you for all
reasonable travel and other expenses that have been incurred by you in
connection with the performance of your duties as a consultant to the Company or
Chairman of the Board provided that you shall comply with all applicable Company
policies relating to reimbursement for travel, cell phone and other expenses.
20.8 Confidentiality. Both during the term of your role as a
consultant to the Company and/or Chairman of the Board and at all times
thereafter, you shall not, without the prior written consent of the Company,
divulge to any third party or use for your own benefit or the benefit of any
third party, or for any purpose other than the exclusive benefit of the Company,
any information whatsoever related to your services as a consultant to the
Company or Chairman of the Board including, but not limited to, any confidential
or proprietary business or technical information revealed, obtained or developed
in the course of your retention by the Company or which is otherwise the
property of the Company, including but not limited to, trade secrets, client
lists, formulae and processes. In the event you are ordered by subpoena or other
legal process to divulge any information about the Company, including, but not
limited to, any confidential or proprietary information with respect to the
Company or it businesses, you agree to provide the Company with prompt
notification of such Order or other legal process and provide Company with
copies of all documents or Order directed to you immediately upon receipt.
20.9 Property. Both during the term of your retention as a
consultant to the Company and/or Chairman of the Board and at all times
thereafter, you shall not remove from the Company's offices or premises any
documents, records, notebooks, files, correspondence, reports, memoranda and
similar materials or property of any kind unless necessary for the performance
of your services hereunder (and, in the event that any such material or property
is removed, it shall be returned to its proper file or place of safekeeping as
promptly as possible) nor shall you make, return, remove or distribute any
copies of any of the foregoing for any reason whatsoever, or divulge to any
third person the nature or contents of any of the foregoing or of any other oral
or written information to which you may have access or with which for any reason
you may become familiar, except as disclosure shall be approved in advance by
the Company as necessary for the performance of your services. Upon the
termination of your role as a consultant to the Company or Chairman of the
Board, whichever is later in time, you shall leave with or return to the Company
all originals and all copies of the foregoing then in your possession or subject
to your control, whether prepared by you or by others.
20.10 Term and Termination.
20.10.1 The term of the post-CEO role provided for herein
will be for a period commencing on the Resignation Date and terminating three
(3) years thereafter (the "Term").
20.10.2 Your role as a consultant to the Company and/or
Chairman of the Board shall terminate upon the first to occur of the following:
(a) Expiration of the Term; or
(b) Your death or permanent disability; or
(c) The delivery to you by the Company of written notice
setting forth the decision of the Company to terminate your role as a consultant
to the Company and/or Chairman of the Board for "Cause." For purposes of this
Agreement, "Cause" shall be limited to your willful breach of duty of loyalty
to, or commission of an act of fraud or dishonesty upon IntegraMed.
(d) The delivery to you by the Company of written notice
setting forth the decision of the Company to terminate this Agreement "without
cause," in which event the fee provided for in paragraph 20.1 will continue to
be paid in monthly installments through the expiration of the Term.
20.11 Survival of Provisions. Your obligations pursuant to
Sections 20.8 and 20.9 of this Agreement shall survive the termination of your
role as a consultant to the Company and/or Chairman of the Board.
20.12 Independent Contractor. You acknowledge that during the Term
of your role as a consultant to the Company and/or Chairman of the Board your
role will not be construed or deemed to constitute you as an employee of the
Company for any purpose whatsoever or give rise to, or imply the existence of, a
relationship between the Company and you or partnership or joint venture. You
further agree to pay all federal and state withholding taxes, FICA taxes,
unemployment benefits and other federal, state and local taxes and charges
arising in connection with your performance of services or receipt of
compensation and covenant and agree to indemnify and hold the Company harmless
from and against any and all claims made against the Company by any federal,
state or local governmental agency arising from, or in any manner whatsoever
attributable to, your failure to timely pay the full amount of the same.
21. In addition to the payments provided to you as a consultant to
the Company pursuant to paragraph 20.1, while continuing to serve as a member of
the Board, you will be eligible for Board compensation to the same extent as
other directors of the Company, including a retainer fee, attendance fees and
other non-cash compensation.
All provisions of the Employment Agreement not in conflict with this
amendment remain in full force and effect. If the foregoing Paragraphs 20
through 20.11 and 21 accurately reflect our understanding, please sign a copy of
this letter where indicated below and return the same to me.
Sincerely,
/s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairperson
Compensation Committee, Board of Directors
IntegraMed America, Inc.
▇▇▇▇▇▇▇▇▇ accepted and agreed to this:
9th day of June 2005
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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