FIRST AMENDMENT TO EMPLOYMENT AGREEEMENT
EXHIBIT
10.50
FIRST
AMENDMENT TO EMPLOYMENT AGREEEMENT
THIS
FIRST AMENDMENT
dated as
of November 11, 2005, to the Employment Agreement (“Employment Agreement”)
between CareAdvantage, Inc. (“Company”) and Xxxxxx X. Xxxxxx (“Employee”), dated
as of October 25, 2000.
WHEREAS,
the
Employment Agreement presently provides Employee with a monthly automobile
allowance of $1,500, grossed-up for federal and state tax
liability;
WHEREAS,
the
parties desire to increase such allowance to $3,000 per month, grossed-up
for
federal and state tax liability, on account of increases since October
2000 in
Employee’s costs for commuting;
NOW,
THEREFORE,
in
consideration of the premises and other valuable consideration, the parties
agree as follows:
|
1.
|
Effective
December 1, 2005, Section 2(e) of Exhibit A to the Employment
Agreement is
amended by substituting “$3,000” for
“1,500.”
|
|
2.
|
In
all other respects, the Employment Agreement shall remain in
full force
and effect.
|
IN
WITNESS WHEREOF,
the
parties have executed this First Amendment as of the date set forth
above.
|
CAREADVANTAGE,
INC.
|
XXXXXX
X. XXXXXX
|
|
BY:
/s/ Xxxxxx X.
Xxxxxx
|
/s/
Xxxxxx X.
Xxxxxx
|
AGREEMENT
dated as of October 25, 2000 (“Commencement Date) by and between CareAdvantage,
Inc. (“Company”) and Xxxxxx X. Xxxxxx (“Employee”).
1. Employment.
Company
agrees to employ Employee, and Employee agrees to be so employed, in the
capacity of President and Chief Operating Officer at the Company’s headquarters,
and shall have the duties customary to such office and such ancillary and
other
duties as the Chief Executive Officer and/or Board of Directors shall reasonably
determine.
2. Time
and Efforts.
Employee shall diligently and conscientiously devote his full and exclusive
time
and attention and best efforts in discharging his duties as Senior Vice
President for Marketing and Sales.
3. Compensation.
3.1 Salary.
Commencing upon the Commencement Date, the Company shall pay Employee
compensation for his services at an annual rate of $285,000. This amount
shall
be paid in bi-weekly installments. The Company shall deduct from all
compensation due the Employee applicable payroll taxes, withholding taxes
and
other required amounts.
3.2 Waiver
of Commissions.
In
consideration of the various agreements set forth herein, Employee agrees
to
waive any claim for commissions that have not been paid as of the Effective
Date
to which he would otherwise be entitled under the agreement between him
and the
Company dated as of April 19, 1999, as amended.
4. Stock
Options and Fringe
Benefits.
The
Company shall provide the Employee with the stock options and fringe benefits
as
described in Exhibit A.
5. Expense
Reimbursement.
The
Company shall reimburse Employee for all reasonable and necessary expenses
incurred in carrying out his duties under this Agreement. Employee shall
present
to the Company from time to time an itemized account of such expenses in
any
form required by the Company.
6. Term.
Except
as otherwise provided, this Agreement shall be for a one-year term ending
on the
anniversary of the Commencement Date and shall renew for successive one-year
terms unless at least sixty (60) days prior to an anniversary of the
Commencement Date either party gives notice to the contrary.
7. Termination
Without Cause.
(a) The
Company may without cause terminate this Agreement at any time by notifying
the
Employee of such termination. In such event, the Employee shall continue
to
render his services and shall be paid salary in accordance with Section
3.1 up
to the date of termination and a severance payment thereafter for six (6)
months
from the date of termination. In the event the Employee is terminated without
cause following a “change of control” of the Company, then the preceding
sentence shall be applied by substituting “one (1) year” for “six (6) months”.
For purposes of this section, “change of control” shall mean any of the
following events: (a) the Company sells substantially all of its assets
(regardless of whether this Agreement is assigned in connection with such
sale);
(b) at least 50 percent of the vote or 50 percent of the value of the Company’s
stock is sold, exchanged, or otherwise disposed of, in one transaction;
or (c)
there is a merger or consolidation of the Company in a transaction in which
the
Company’s stockholders receive 50 percent or less of the outstanding vote or
value in the new or continuing Company.
(b) The
Employee may without cause terminate this Agreement by giving sixty (60)
days’
written notice to the Company. In such event, the Employee shall continue
to
render his services and shall be paid salary in accordance with Section
3.1 up
to the date of termination. Thereafter, the Employee shall receive no salary
under Section 3.1 nor any severance payment.
8. Termination
With Cause.
The
Company may for cause terminate this Agreement at any time by notifying
the
Employee of such termination and the cause therefor, which cause may include,
but not be limited, to death and disability. In such event, Section 7 shall
not
apply, and the Employee shall receive no salary under Section 3.1 after
the date
of termination.
9. Confidentiality,
Invention and Non-Solicitation Agreement.
Simultaneously with the execution of this Agreement, the parties shall
execute
the agreement entitled “Confidentiality, Invention and Non-Solicitation
Agreement.”
10. Notices.
All
notices required or permitted to be given under this Agreement shall be
given by
certified mail, return receipt requested, to the parties at the following
addresses or to such other addresses as either may designate in writing
to the
other party.
If
to
Company:
Chief
Executive Officer
CareAdvantage,
Inc.
000-X
Xxxxx 0 Xxxxx
Xxxxxx,
Xxx Xxxxxx 00000
If
to
Employee:
Xxx
Xxxxx
Xxxxx Xxxx
Xxxxxxx,
Xxxxxxxxxxxx 00000
11. Governing
Law.
This
Agreement shall be construed and enforced in accordance with the laws of
the
state of New Jersey.
12. Amendments.
This
Agreement may be amended only in writing, signed by both parties.
13. Non-Waiver.
A delay
or failure by either party to exercise a right under this Agreement, or
a
partial or single exercise of that right, shall not constitute a waiver
of that
or any other right.
14. Binding
Effect.
The
provisions of this Agreement, which shall replace all other letters and
agreements between Employee and Company regarding the subject matter hereof
including but not limited to the April 19, 1999 Employment Agreement between
the
parties, as amended, shall be binding upon and inure to the benefit of
both
parties and their respective successors and assigns.
IN
WITNESS WHEREOF, Company has by its appropriate officers, signed and affixed
its
seal and Employee has signed and sealed this Agreement.
|
CAREADVANTAGE,
INC.
|
XXXXXX
X. XXXXXX
|
|
By:
/s/ Xxxxxxxxxxx
Xxxxx
|
/s/
Xxxxxx X.
Xxxxxx
|
EXHIBIT
A
STOCK
OPTIONS AND FRINGE BENEFITS
1. Stock
Options. Employee
shall be granted incentive stock options in the Company from and in accordance
with the Company’s Stock Option Plan (“Plan”) to purchase 2,500,000 shares of
the Company’s Common Stock at $.11 per share in accordance with the vesting
schedule in the Plan (i.e.,
1/3
after one year and 1/24 per month thereafter). Notwithstanding any provision
in
the Plan to the contrary, however, in the event Company terminates Employee’s
employment without cause, options vested under this grant prior to Employee’s
termination will not expire on account of his termination.
2. Fringe
Benefits. The
Employee shall be entitled to the following fringe benefits:
(a) vacation
leave in the amount of 20 days per year, accruing at the rate of 1.67 days
per
month;
(b) other
leave (sick leave, personal time, and holidays) in the amount and on the
same
terms and conditions as provided to other employees of the Company;
(c) medical
insurance, life insurance, and participation in the Company’s 401(k) plan on the
same terms and conditions as these benefits are provided to other employees
of
the Company; and
(d) disability
insurance (long- and short-term) on the same terms and conditions as provided
to
senior management of the Company; and
(e) a
monthly
automobile allowance of $1,500, grossed-up for federal and state tax
liability.
CAREADVANTAGE,
INC.
CONFIDENTIALITY,
INVENTION AND NON-SOLICITATION AGREEMENT
I,
Xxxxxx
X. Xxxxxx, as partial consideration for my employment by CareAdvantage,
Inc. or
its subsidiaries and affiliates (including without limitation CareAdvantage
Health Systems, Inc. and Contemporary HealthCare Management, Inc.) or successors
in business (hereinafter individually and collectively the “Company”), and for
the compensation to be paid to me during the continuance of such employment,
enter into this Confidentiality, Invention and Non-Solicitation Agreement
(hereinafter “Agreement”) as follows:
1.
Non-Interference With Third-Party Rights
1.1 I
understand that my employment with the Company is based on (a) my representation
that I am free to undertake employment with the Company and the duties
and
obligations imposed under this Agreement without breach of any other agreement
(whether written or oral) or duty to another party, and (b) my acknowledgment
that the Company is entitled to the benefit of my work. I further understand
that the Company has no interest in using any person’s patents, copyrights,
trade secrets or trademarks in an unlawful manner. As such, I shall not
misapply
proprietary rights that the Company has no rights to use.
2.
Confidentiality of Trade Secrets and Business Information
2.1 I
acknowledge that during the course of my employment, I may develop and
obtain
access to trade secrets and confidential business information of the Company.
Under the law a “trade secret” is a type of intangible property, and its theft
is a crime in most states. A trade secret generally consists of valuable,
secret
information or ideas that the Company collects or uses in order to keep
its
competitive edge. Examples of trade secrets are system designs, computer
programs and software, proprietary clinical protocols, operating processes,
and
any other proprietary technology. “Confidential business information,” which the
Company also treats as proprietary, consists of all other competitively
sensitive information kept in confidence by the Company. Examples of
confidential business information are selling and pricing information and
procedures, business and marketing plans, and internal financial
statements.
2.2 I
agree
to not use or disclose any trade secrets to which I am exposed or have
access to
in the course of my employment with the Company, whether such trade secrets
belong to the Company (including trade secrets embodied or contained in
any
Employee Developments as defined in Section 4.1) or to third parties, during
my
employment and for so long afterward as the pertinent information or data
remain
trade secrets, whether or not the trade secrets are in written or tangible
form,
except as required and authorized during the performance of my duties.
I further
agree to not use or disclose any confidential business information to which
I am
exposed or have access to in the course of my employment with the Company,
whether such information belongs to the Company (including confidential
business
information embodied or contained in any Employee Developments as defined
in
Section 4.1) or to third parties, during my employment and for so long
afterward
as the pertinent information or data remain confidential business information,
whether or not the confidential business information is in written or tangible
form, except as required and authorized during the performance of my
duties.
3.
Return of Company Property
3.1 At
the
request of the Company, and in any event, at the time of termination of
my
employment, I will return all records, materials and other physical objects
that
pertain to the Company’s business or to my employment, including but not limited
to all memoranda, notes, records, drawings, manuals, documents, papers,
computer
software and passwords or other identification materials (including all
copies
thereof). I will also return to the Company all materials involving any
trade
secrets or confidential business information of the Company. The foregoing
obligations apply to all materials relating to the affairs of the Company
or to
any of its customers, clients, vendors or agents which may be in may possession
or control.
4.
Ownership of Employee Developments
4.1 The
Company shall be entitled to own and to control all care management, medical,
technological, operating, and training ideas, processes and materials that
are
developed or conceived by me, solely or jointly with others, at any time
during
my employment with the Company to the extent that they relate to the Company’s
then present business (collectively known as “Employee Developments”).
Accordingly, I will promptly disclose and make available to the Company
all work
papers, models or other tangible embodiments of such Employee Developments.
Further, I will deliver and assign to the Company all copyrights, inventions,
discoveries, improvements and trade secrets (whether or not patentable),
including all interests in computer programs, arising in connection with
my
employment with the Company, and I will take whatever steps may be needed
to
give the Company the full and exclusive benefit of them. To the fullest
extent
permitted by applicable law, all such inventions and developments shall
be
considered work made for hire under applicable law, and I shall assign
to the
Company all other rights that I may have in any such inventions and
developments.
5.
Non-Solicitation
5.1 I
agree
that during the period commencing on the date hereof to and including the
first
anniversary of the date on which I cease to be employed by the Company
(the
“Non-Solicitation Period”), I and any entity in which I have an equity interest
shall not solicit any customer of the Company or any prospective customer
of the
Company to provide (i) utilization review of inpatient or outpatient care,
managed care services, or disease management services (collectively, “Care
Management Services”), or (ii) training with respect to Care Management
Services. For purposes of this Section, a “prospective customer of the Company”
includes (A) any entity to which, during the period of my employment with
the
Company, the Company has made a proposal to provide Care Management Services
or
training with respect to Care Management Services, or (B) any entity that
the
Company specifically identifies as a prospective customer, in good faith,
during
the term of my employment with the Company; a “prospective customer” shall not
include an entity that would otherwise meet the definition of Clause (A)
where
such entity has expressly indicated to the Company (prior to any solicitation
by
me or an entity in which I have an equity interest) that it is not interested
in
becoming a customer of the Company. Notwithstanding the foregoing, however,
this
Section shall not be deemed to prevent me from (a) investing in securities
if
such class of securities in which the investment is so made is listed on
a
national securities exchange or is issued by a company registered under
Section
12(g) of the Securities Exchange Act of 1934, so long as such investment
holdings do not, in the aggregate, constitute more than 1% of the voting
stock
of any company’s securities, or (b) making passive investments in which I do not
participate in management. I further agree that during the Non-Solicitation
Period, I shall not seek or accept employment, an affiliation, a consultancy
or
any other arrangement with any entity with which Company, at the time of
the
termination of my employment, has or is negotiating a business relationship
other than as a vendor to the Company.
5.2 I
acknowledge that I have been employed for my special talents. I further
acknowledge that my training, experience and technical skills are of such
breadth that the foregoing obligations will not unreasonably impair my
ability
to engage in business activity after the termination of my employment.
5.3 I
agree
that I will not, during the Non-Solicitation Period, hire or offer to hire
or
entice away or in any other manner persuade or attempt to persuade, either
in my
individual capacity or as agent for another, any of Company’s officers,
employees, or agents to discontinue their relationship with the Company.
I
further agree that I will not, during the Non-Solicitation Period, contract,
solicit or divert or attempt to contact or divert from the Company any
business
whatsoever by influencing or attempting to influence any customer or account
of
the Company at the time of termination of my employment.
Section
6. Other Terms
6.1 This
Agreement shall inure to the benefit of, and shall be binding upon, the
Company
and its subsidiaries and affiliates, together with their successors, and
me,
together with my executor, administrator, personal representative, heirs
and
legatees.
6.2 This
Agreement merges with and supersedes all prior and contemporaneous agreements
and understandings (except the Employment Agreement between the parties
executed
contemporaneously herewith), whether written or oral, express or implied,
to the
extent they contradict or conflict with the provisions hereof.
6.3 If
any
term of this Agreement is found to be unlawful or unenforceable in any
respect,
the courts shall enforce such term, in whole or in part, and all other
terms of
this Agreement to the fullest extent possible.
6.4 Irreparable
harm should be presumed if this Agreement is breached in any way. Damages
would
be impossible to ascertain, and the faithful observance of all terms of
this
Agreement is an essential condition of employment with the Company. Furthermore,
this Agreement is intended to protect the proprietary rights of the Company
in
important ways, and even the threat of any misuse of any proprietary information
disclosed to or developed by me under this Agreement would be extremely
harmful
because of the importance and value of such material. In light of these
considerations, I agree that upon the Company’s request a court of competent
jurisdiction should immediately enjoin any breach of this Agreement upon
proof
of such matters as may be required by such court, other than irreparable
harm
which should be presumed as aforesaid. In addition, the Company is released
from
the requirement to post any bond in connection with a grant of a temporary
or
interlocutory relief, to the extent permitted by law.
6.5 My
obligations under this Agreement shall remain unaffected by the termination
of
my employment with the Company.
6.6 This
Agreement shall be governed by and enforced in accordance with the laws
of the
State of New Jersey.
|
CAREADVANTAGE,
INC.
|
XXXXXX
X. XXXXXX
|
|
By:
/s/ Xxxxxxxxxxx
Xxxxx
|
/s/
Xxxxxx X.
Xxxxxx
|
