EXHIBIT 10.5
EMPLOYMENT AGREEMENT FOR
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▇▇▇ ▇. ▇▇▇▇▇
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), is dated as of the 18 day of April,
2000, by and between ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the
"Company") and ▇▇▇ ▇. ▇▇▇▇▇ (the "Employee").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the business of providing healthcare
transaction processing services, payment services, healthcare administrative and
benefits management services and information, data management and data analysis
services, healthcare benefits, and the like, and also is engaged in the business
of providing the software, systems or expertise used to provide the
aforementioned services (collectively, the "Business");
WHEREAS, the Company desires to retain the services of the Employee for and on
behalf of the Company on the terms and subject to the conditions set forth
herein;
WHEREAS, this Agreement is being executed concurrently and in connection with
and is contingent upon the execution and delivery of a certain Asset Purchase
Agreement, dated March 20, 2000, among the Company, ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a
Delaware corporation and VHx Company, a Nevada corporation (the "Purchase
Agreement");
WHEREAS, each of the parties acknowledge that they are receiving good and
valuable consideration for entering into this Agreement and the Employee
acknowledges that this Agreement, including the covenant not to compete set
forth hereinbelow, was negotiated between the parties hereto and that Employee
received bargained for consideration in connection with the terms of the
Purchase Agreement and this Agreement in exchange for entering into this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
EMPLOYMENT AND TERM
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1.1 EMPLOYMENT. Upon the terms and subject to the conditions herein contained,
the Company hereby employs the Employee as an Executive Vice President of the
Company and the Employee hereby accepts such employment.
1.2 TERM. Except as otherwise provided in this Agreement, thc original term of
employment under this Agreement shall commence on April 18, 2000 (the
"Commencement Date") and end on January 11, 2002 (such period, the "Original
Term"), whereupon this Agreement shall terminate and, except as otherwise
provided in this Agreement, neither the Company nor the Employee shall have any
further rights, duties, privileges or obligations hereunder. At the expiration
of the Original Term, if the Employee is still employed by the Company, the
Employee will become an at-will employee of the Company. (Such period of at-will
employment together with the Original Term hereinafter referred to as, the
"Term.") The Employee understands and agrees that during such time as the
Employee remains an at-will employee of the Company, either the Company or the
Employee may terminate their employment relationship at any time, for any reason
or no reason, subject to the notice provisions of Sections 4.1 and 4.3 of this
Agreement.
ARTICLE II.
COMPENSATION
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2.1 BASE SALARY. In exchange for the provision of services, the Employee shall
receive a salary of One Hundred Forty Five Thousand Dollars ($145,000) per annum
("Base Salary"). The Base Salary shall be payable in such manner and at such
time as the Company shall pay salary to other employees. The Company's
obligation to provide the Base Salary provided in this Section 2.1 and the
Benefits and Expense Reimbursement provided in Sections 2.2 and 2.3 of this
Agreement, respectively, shall begin on the Commencement Date.
2.2 BENEFITS. In addition to the compensation set forth under Section 2.1,
following the Commencement Date, the Employee shall be entitled to participate
in any of the Company's standard benefit policies or plans, including any
benefit policies or plans generally applicable to Executive Vice-President level
positions, according to their terms. These policies may be modified or
terminated from time to time by the Company, but such changes shall not be
deemed to be effective retroactively. The written terms of the policies shall
govern any questions of eligibility for coverage or duration of coverage.
2.3 EXPENSE REIMBURSEMENT. In addition to the compensation provided in Paragraph
2.1 and the benefits provided for in Paragraph 2.2, the Employee will be
reimbursed for all reasonable travel, hotel, entertainment and other expenses
incurred by him in the performance of her duties hereunder, upon providing to
the Company reasonably detailed evidence of such expenses promptly after such
expenses are incurred.
2.4 STOCK OPTION. The Company has a stock option plan currently in place. The
Employee shall be entitled to receive such stock options as may be determined by
the Board of Directors in its sole discretion in accordance with the terms of
the Company's existing stock option plan.
ARTICLE III.
DUTIES OF EMPLOYEE
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3.1 SERVICES. The Employee shall perform all duties and obligations assigned to
the Employee by the chief executive officer of the Company, as the same may be
determined from time to time, which duties during the Original Term shall be
materially consistent with the Employee's position as an Executive Vice
President of the Company. The chief executive officer of the Company shall
assure adequate time, resources and authority for the Employee to achieve goals
mutually agreed upon by him or her and the Employee. The duties of the Employee
will be performed principally in the offices of the Company located in Atlanta,
Georgia.
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3.2 TIME AND EFFORT. The Employee shall devote her full time and effort to the
business of the Company. Accordingly, upon the execution hereof, Employee shall
terminate all existing employment agreements to which Employee is a party. The
Employee shall perform the duties and obligations required of the Employee
hereunder in a competent, efficient and satisfactory manner at such hours and
under such conditions as the performance of such duties and obligations may
require. This Agreement will not restrict the Employee from being a director or
advisor to other companies so long as those companies do not provide competing
products or services, so long as the Employee's role as director and advisor
does not interfere with the performance of the duties and obligations described
in this Agreement and so long as the Employee receives written pre-approval from
the Chief Executive Officer of the Company, which shall not be unreasonably
withheld.
3.3 ARTICLES AND BY-LAWS. The Employee shall act in accordance with and so as to
abide by the Articles of Incorporation of the Company, the Bylaws of the
Company, the decisions of the Board of Directors and the directions of the Chief
Executive Officer of the Company, as the same may be amended or drafted from
time to time.
3.4 CONFIDENTIALITY AND LOYALTY. The Employee acknowledges that, during the
Employee's employment by the Company, she has produced and/or may produce and
has had and/or may have access to material, records, data and information not
generally available to the public regarding the Company, its customers and
affiliates, including but not limited to: sales, marketing and business plans,
proposals or strategies; past and prospective customer lists and information;
price, accounting, cost information; acquisition activity; and administrative
techniques and other documents or information which is or has been designated as
"Confidential" (or another similar designation) and/or which constitute the
proprietary information of the Company ("Confidential Information").
Accordingly, during and subsequent to the termination of this Agreement, the
Employee shall hold in confidence and not directly or indirectly disclose, use,
copy or make lists of any such Confidential Information, except to the extent
such disclosure, use, copy or list is first authorized in writing by the
Company, or as required by law or any competent administrative agency or as
otherwise is reasonably necessary or appropriate in connection with the
performance by the Employee of her duties pursuant to this Agreement. For the
purposes of this section, the following shall not be considered Confidential
Information:
a. any information that was known by the Employee prior to the date and
time of receipt of the Confidential Information from the Company,
other than as a result of some breach by the Employee or other
person or entity of the Company's right in and to the Confidential
Information;
b. any information that was available in published print or otherwise
known to the public, unless published or made known as a result of
the unauthorized acts or omissions of the Employee or other person
or entity;
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c. any information that, after disclosure by the Company, becomes
available in published print or otherwise known to the public,
unless published or made known as a result of the unauthorized acts
or omissions of the Employee or other person or entity; or
d. any information that is lawfully obtained by the Employee from a
third party who or which did not acquire such information, directly
or indirectly, as a result of some breach, violation or interference
by such person or entity of or with the Company's rights in and to
the Confidential Information.
Upon termination of her employment under this Agreement or upon the request of
the Company, the Employee shall promptly deliver to the Company (i) all records,
manuals, books, documents, letters, reports, data, tables, calculations and all
copies of any of the foregoing which are the property of the Company or which
relate in any way to the customers, business, practices or techniques of the
Company, and (ii) all other property of the Company and Confidential Information
which in any of these cases are in her possession or care, or under her control.
The Employee agrees to abide by the Company's reasonable policies as in effect
from time to time, respecting avoidance of interests conflicting with those of
the Company.
3.5 COVENANT NOT TO COMPETE. In exchange for the consideration given by the
Company to the Employee pursuant to both the Purchase Agreement and this
Agreement, the Employee agrees, represents to and covenants with the Company
that during the Employee's employment and for a period of one (1) year after the
termination of the Employee's employment with the Company for any reason, the
Employee shall not, either directly or indirectly:
a. within the United States or internationally, own, manage, operate or
control, or participate in the ownership, management, operation or
control of, or be employed by, or act as a consultant or advisor to,
or be connected in any manner with, any person, or other entity that
is engaged in the Business; or
b. solicit customers, or the business of any person, or entity who or
which is or has been a customer or account of the Company or of its
customers or affiliates; or
c. induce or attempt to induce any director, employee, consultant or
other independent contractor to do any of the foregoing or to
discontinue such person's association with the Company.
In the event that the Employee's employment with the Company is terminated
during the Original Term, the Employee's obligations pursuant to this Section
3.5 shall last for a period of one (1) year plus (i) the number of months
remaining between the date of the termination of employment and the expiration
of the Original Term if such termination is pursuant to Section 4.1 or 4.3, or
(ii) six months if such termination is pursuant to Section 4.4, after the date
of termination of Employee's employment.
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3.6 OWNERSHIP OF INTELLECTUAL PROPERTY. a. The Employee shall promptly disclose
to the Company any and all inventions, discoveries and improvements made,
conceived, created, developed or contributed to by the Employee during the
Employee's employment by the Company which are (i) directly or indirectly
related to the Business, operations or activities of the Company (or its
affiliates) or to the Employee's employment with the Company, or (ii) based upon
Confidential Information, (collectively, "Inventions"). The Employee shall
promptly communicate to the Company all information, details and data pertaining
to any Inventions in such form as the Company requests. Whenever the Employee is
requested to do so by the Company, during or after the Employee's employment by
the Company, the Employee shall promptly execute and deliver any and all
applications, assignments or other documents or instruments reasonably deemed
necessary by the Company to apply for and obtain Letters Patent of the United
States or any foreign country or to otherwise protect the Company's interests in
any Inventions. The obligations set forth in this Section 3.6(a) shall be
binding upon the successors, assigns, executors, administrators and other legal
representatives of the Employee.
b. Any sales approaches, sales material, training material, computer
software, documentation, other copyrightable works or any other intellectual
property (including, but not limited to, materials or services subject to
trademark or service ▇▇▇▇ registration) made, conceived, created, developed or
contributed to by the Employee during the Employee's employment by the Company
and which are (i) directly or indirectly related to the Business, operations or
activities of the Company (or its affiliates) or to the Employee's employment by
the Company, or (ii) based upon Confidential Information, shall be considered
"works made for hire" under the copyright laws of the United States
(collectively, "Works for Hire"). The Employee shall promptly communicate to the
Company all information, details and data pertaining to any Works for Hire in
such form as the Company requests. To the extent that Works for Hire fail to
qualify as "works made for hire" under the copyright laws of the United States
or any other jurisdiction, the Employee hereby assigns each Work for Hire and
all right, title and interest therein in any jurisdiction to the Company.
Whenever the Employee is requested to do so by the Company, during or after the
Employee's employment by the Company, the Employee shall promptly execute and
deliver any and all applications, assignments or other documents or instruments
reasonably deemed necessary by the Company to apply for and confirm and
effectuate full and exclusive ownership of Works for Hire in the Company,
including, but not limited to, ownership of any moral rights under the copyright
law of any nation, or any other rights under the intellectual property laws of
any nation. The obligations set forth in this Section 3.6(b) shall be binding
upon the successors, assigns, executors, administrators and other legal
representatives of the Employee.
c. The Employee shall bear the burden of proof that any invention,
discovery, improvement or other intellectual property made, conceived, created,
developed or contributed to by the Employee was first made, conceived, created,
developed or contributed to after the termination of the Employee's employment
with the Company. The Employee shall bear the burden of proof that any
invention, discovery, improvement or other intellectual property made,
conceived, created, developed or contributed to by the Employee during the
Employee's employment by the Company is unrelated (i) to any of the Business,
operations or activities of the Company (or its affiliates) or to the Employee's
employment by the Company, and (ii) was not based upon Confidential Information.
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3.7 REMEDIES. The Employee acknowledges and agrees that any breach of any of the
covenants or agreements set forth in this ARTICLE III of this Agreement will
cause the Company irreparable harm for which there is no adequate remedy at law,
and, without limiting whatever other rights and remedies the Company may have at
law or in equity, the Employee consents to the issuance of an injunction in
favor of the Company enjoining the breach of any of the aforesaid covenants or
agreements by any court of competent jurisdiction. If any or all of the
aforesaid covenants or agreements are held to be unenforceable because of the
scope or duration of such covenant or agreement or the geographic area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce or modify the scope, duration and/or area of such covenant
to the extent necessary to cause such covenants or arrangements to comport with
applicable law.
3.8 ACKNOWLEDGMENT. The Employee acknowledges that the Employee has reviewed the
terms of Section 3.5 including, without limitation, the geographic scope of
Section 3.5 and understands its consequence. The Employee further acknowledges
that the geographic restriction of Section 3.5 is required because the Company
will be involved with brand new technology which will have worldwide
application. Further, the Employee acknowledges that she has had an opportunity
to review this Section 3.5 with counsel.
ARTICLE IV.
TERMINATION
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4.1 TERMINATION FOR CAUSE. Notwithstanding anything contained in this Agreement
to the contrary, the Company shall have the right to terminate the employment of
the Employee "cause" upon the occurrence of any of the following events:
a. the Employee's deliberate or recurrent failure of the Employee to
satisfactorily perform her duties under this Agreement if such gross
negligence is not cured within ten (10) business days after written
notice from the Company thereof;
b. the Employee shall, in the performance of the Employee's duties
under this Agreement, engage in any conduct for which the Employee
or the Company are convicted of a felony crime by a court of
competent jurisdiction;
c. the Employee shall, in the performance of the Employee's duties
under this Agreement, engage in any deliberate act or omission which
materially injures the Company or its Business, or the Employee acts
with gross negligence or wanton disregard for the welfare of the
Company or its Business (this provision is not intended to include
good faith miscalculations or errors in judgment);
d. the Employee shall inexcusably violate or willfully refuse to obey
the lawful and reasonable instructions of the Board of Directors or
the chief executive officer of the Company; or
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e. the transactions contemplated by the Purchase Agreement are not
consummated in full.
Where the employment of the Employee is terminated pursuant to Section 4.1 of
this Agreement, such termination shall be effective upon the delivery of notice
thereof to the Employee and the Company's obligations to the Employee under this
Agreement shall terminate immediately thereafter. Notwithstanding the foregoing,
no such termination shall affect the obligation of the Company to pay to
Employee compensation earned, but not paid, prior to the date of termination.
4.2. DEATH OF EMPLOYEE. In the event of the Employee's death during the term of
this Agreement, this Agreement and the Company's obligations to the Employee
under this Agreement shall terminate.
4.3. RESIGNATION OF EMPLOYEE. The Employee may resign at any time for any reason
upon sixty (60) days advance written notice to the Chairman of the Board of
Directors, provided that the Company's obligations to the Employee under this
Agreement, shall cease on the date the Employee's termination is effective.
4.4. TERMINATION OF EMPLOYEE WITHOUT CAUSE OR RESIGNATION FOR GOOD REASON.
Nothing contained herein shall prohibit the Company from terminating the
Employee's employment without "cause" during the Term or the Employee from
resigning for "good reason" during Employee's employment by the Company,
provided that in the event of the Employee's termination without "cause" or
resignation for "good reason" during the Original Term, the Employee shall
receive an amount equal to fifty percent (50%) of her then effective Base
Salary. The severance payment made in accordance with this Section 4.4 shall be
made over the remainder of the Original Term as if the Employee continued to be
employed by the Company. In consideration for the payments provided in this
Section 4.4, the Employee agrees to execute a release of any and all claims
against the Company, at the time of the termination of her employment, except
for claims made pursuant to this Agreement or the Purchase Agreement, the
release to be in such reasonable form as shall be prepared by the Company, and
to comply with the limitations imposed in Article III of this Agreement. For the
purposes of this Section 4.4, "good reason" shall mean:
a. Assignment to employee of duties inconsistent with her present
position as Executive Vice President, Business Development or a
reduction or alteration in the nature of the employee's position,
duties, status or responsibilities from those in effect as of the
execution of this Agreement.
b. Any attempt to reduce the Employee's base salary in effect upon the
execution of this Agreement.
4.5 WITHHOLDING OF PAYMENTS. In the event that the Employee breaches the terms
of Article III, the Employee agrees that the Company may withhold payments to be
made pursuant to Section 4.4 to be applied against damages related to such
breach, as the case may be, provided, however, that the Company must first
obtain a court order finding that a breach of Article III by the Employee has
occurred.
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4.6. SURVIVING RIGHTS. Notwithstanding the termination of the Employee's
employment, including by resignation, the parties shall be required to carry out
any provisions hereof which contemplate performance subsequent to such
termination; and such termination shall not affect any liability or other
obligation which shall have accrued prior to such termination, including. but
not limited to, any liability for loss or damage on account of a prior default.
ARTICLE V.
GENERAL PROVISIONS
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5.1 NOTICES. All notices, requests, and other communications shall be in writing
and except as otherwise provided herein, shall be considered to have been
delivered if personally delivered or when deposited in the United States Mail,
first class, certified or registered, postage prepaid, return receipt requested,
addressed to the proper party at its address as set forth below, or to such
other address as such party may hereafter designate by written notice to the
other party:
a. If to the Company, to:
▇▇ ▇. ▇▇▇▇▇, CEO
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, inc.
c/o ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
b. If to the Employee, to:
▇▇▇ ▇. ▇▇▇▇▇
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With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇
320 The ▇▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
5.2 WAIVER, MODIFICATION OR AMENDMENT. No waiver, modification or amendment of
any term, condition or provision of this Agreement shall be valid or of any
effect unless made in writing, signed by the party to be bound or its duly
authorized representative and specifying with particularity the nature and
extent of such waiver, modification or amendment. Any waiver by any party of any
default of the other shall not effect, or impair any right arising from, any
subsequent default. Nothing herein shall limit the rights and remedies of the
parties hereto under and pursuant to this Agreement, except as hereinbefore set
forth.
5.3 ENTIRE AGREEMENT. This Agreement contains the entire understanding of the
parties hereto in respect of matters contemplated hereby and supersedes all
prior agreements and understandings between the parties with respect to such
matters including, without limitation, the Prior Employment Agreement.
5.4 INTERPRETATION AND SEVERANCE. The provisions of this Agreement shall be
applied and interpreted in a manner consistent with each other so as to carry
out the purposes and intent of the parties hereto, but if for any reason any
provision hereof is determined to be unenforceable or invalid shall, except as
otherwise provided in Section 3.7, such provision or such part thereof as may be
unenforceable or invalid shall be deemed severed from this Agreement and the
remaining provisions shall be carried out with the same force and effect as if
the severed provision or part thereof had not been a part of this Agreement.
5.5 GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with the laws of the State of Georgia.
5.6 ASSIGNMENT. The Employee acknowledges that the Employee's services are
unique and personal. Accordingly, the Employee may not assign the Employee's
rights or delegate the Employee's duties or obligations under this Agreement.
The Company's rights and obligations under this Agreement shall inure to the
benefit of and shall be binding on the Company's successors and assigns.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
COMPANY:
By:
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Its:
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EMPLOYEE:
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▇▇▇ ▇. ▇▇▇▇▇
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