EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this
“Agreement”) is made and entered September 1, 2007 (the “Effective Date”),
between HEALTH
SYSTEMS SOLUTIONS, INC.,
a
Nevada corporation (the “Company”), with a principal place of business at 000
Xxxxx Xxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 and Xxxxxxx
Xxxxxx (the
“Executive”), an individual residing in Xxxxxx,
NJ.
RECITALS:
The
Executive possesses knowledge and skills which the Company believes will be
of
substantial benefit to its operations and success, and the Company desires
to
employ the Executive on the terms and conditions set forth below.
The
Executive is willing to make his services available to the Company on the terms
and conditions set forth below.
NOW,
THEREFORE, in
consideration of the mutual agreements herein made, the Company and the
Executive hereby agree as follows:
AGREEMENT
1.
EMPLOYMENT The
Company hereby agrees to employ Executive and Executive hereby accepts such
employment in his capacity of Chief Financial
Officer
and Executive
Vice President,
upon
the terms and conditions hereinafter set forth.
The
Executive shall diligently perform all services as may be assigned to him by
the
Board of Directors of the Company (the “Board”), and shall exercise such power
and authority as may from time to time be delegated to him by the Board. As
the
Chief Financial Officer of the Company, the Executive shall have all of the
powers, authority, duties and responsibilities usually incident to the position
and role of Chief Financial Officer in public companies that are comparable
in
size, character and performance to the Company. The Company may also direct
Executive to perform such duties for other entities which are now or may in
the
future be direct or indirect subsidiaries of the Company (the
“Affiliates”),
subject
to the limitation that Executive’s overall time commitment is comparable to
similarly situated executives. Executive shall serve the Company and the
Affiliates faithfully, diligently and to the best of his ability. Executive
agrees during the Term (as hereinafter defined) of this Agreement to devote
all
of his full-time business efforts, attention, energy and skill to the
performance of his employment to furthering the interest of the Company and
the
Affiliates. In connection with his employment by the Company, the Executive
shall be based in New York City, or at any other Company location, as he may
determine to be appropriate for the performance of his duties, and he agrees
to
travel, subject to the reimbursement of expenses set forth in Section 2(f)
below
and to the extent reasonably necessary, to perform his duties and obligations
under this Agreement, to Company facilities and other destinations elsewhere.
During the Term, Executive shall not engage in any other employment, occupation
or consulting activity for any direct or indirect remuneration without the
prior
written consent of the Board; provided that the Executive may engage in
community service and other charitable activities without prior written consent
of the Board.
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2.
COMPENSATION/BENEFITS
.
(a)
Salary.
Company
shall pay Executive a base salary (the “Base Salary”), of $285,000.
Said Base Salary shall be paid consistent with the Company’s payroll policies
and procedures for all employees. The Base Salary shall be increased, at least
annually, in accordance with increases in the Consumer Price Index (using the
1982-84 average as equal to 100), All Urban Consumers All Cities Average, issued
by the Bureau of Labor Statistics of the United States; provided, however,
that
the Base Salary shall not be increased during any calendar year during the
Term
in excess of 5%.
(b)
Performance
Bonus.
For the
period commencing in calendar year 2007 and for each calendar year thereafter
during the Term, Executive shall be eligible to receive an annual bonus
(“Bonus”) in an amount up to 40%
of the
Base Salary (the “Maximum Bonus”) to be determined as follows: (i) if 80% to
100% of budgeted revenue and EBITDA are achieved by the Company for any calendar
year during the Term, the Executive shall be entitled to receive 50% of the
Maximum Bonus; and (ii) if 100% to 110% of budgeted revenue and EBITDA are
achieved by the Company for any calendar year during the Term, the Executive
shall be entitled to receive 100% of the Maximum Bonus. For purposes of the
Bonus calculations, Company revenue and EBITDA shall be weighted equally;
accordingly, and for illustration purposes only, if 80% of budgeted revenue
is
achieved, but only 50% of budgeted EBITDA is achieved, the Executive would
be
entitled to receive a Bonus of 25% of the Maximum Bonus. At the discretion
of
the Board, the Executive may receive an amount in addition to the Maximum Bonus
if Company revenue and EBITDA both exceed the budgeted amount by 110% or more.
As used herein, the initial budgeted revenue and EBITDA shall be derived from
a
budget which shall be submitted to the Board no later than 60 days from the
Effective Date hereof. As used herein, “EBITDA” means the Company’s earnings
before interest, taxes, depreciation and amortization as determined by the
Company’s independent certified public accountants from time to time. The Bonus,
if any, shall be payable on an annual basis at such time as the Board shall
determine. For any partial year, the Bonus shall be pro-rated.
(c)
Employee
Benefits Executive
shall be entitled to participate in such employee benefit plans and insurance
offered by the Company to similarly situated employees of the Company subject
to
the eligibility requirements, restrictions and limitations of any such plans
or
programs.
(d)
Vacation.
Executive shall be entitled to three (3)
weeks
of
vacation each calendar year during the Term, to be taken at such times as the
Executive and the Company shall mutually determine and provided that no vacation
time shall interfere with the duties required to be rendered by the Executive
hereunder. Any vacation time not taken by Executive during any calendar year
may
not be carried forward into any succeeding calendar year and is not cumulative.
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(e)
Automobile
Allowance.
During
the Term, the Company shall pay the Executive an automobile allowance of $600
per month (subject to any applicable withholding or other taxes).
(f)
Business
Expense Reimbursement; Telephone Expenses.
Upon the submission of proper substantiation by Executive, and subject to such
rules and guidelines as the Company may from time to time adopt, the Company
shall reimburse Executive for all reasonable expenses actually paid or incurred
by the Executive during the Term in the course of and pursuant to the business
of the Company including, without limitation, travel and telephone expenses
incurred by the Executive while traveling to and from the Company’s facilities
as may be required pursuant to Section 1 hereof. The Executive shall account
to
the Company in writing for all expenses for which reimbursement is sought and
shall supply to the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company.
3.
STOCK
OPTIONS.
Subject
to an increase in the amount of shares of common stock of the Company (the
“Common Stock”) available for issuance under the Company’s stock option plan,
and stockholder approval of such increase, the Company shall grant to the
Executive options (the “Stock Option”) to purchase up to 642,500
shares
of
Common Stock under (and therefore subject to all terms and conditions of) the
Company’s stock option plan, as may be amended from time-to-time, and any
successor plan thereto (the “Stock Option Plan”) and all rules of regulation of
the Securities and Exchange Commission applicable to stock option plans then
in
effect. The Stock Option shall have an exercise price per share equal to the
fair market value of the Common Stock on the date of the grant,
which
the parties acknowledge is one dollar ($1.00) per share of Common Stock.
The
Stock
Option will vest equally over the four-year Term of this Agreement as follows:
(i) ¼ will vest and become exercisable on each anniversary of the Effective
Date; and (ii) subject to continued employment as of the vesting date and in
accordance with the terms of the Stock Option Plan. No right to any Common
Stock
is earned or accrued until such time that vesting occurs (subject to Executive
being employed and in good standing hereunder on each vesting date), nor does
the xxxxx xxxxxx any right to continued vesting or employment. The Stock Option
shall lapse as provided in the Stock Option Plan. Notwithstanding the foregoing,
all unvested Stock Options shall vest immediately upon a Change of Control
of
the Company. For purposes of this Agreement, the term “Change in Control” shall
mean (a) a reorganization, merger, consolidation or other transaction, in each
case, with respect to which persons who were the shareholders of the Company
immediately prior to such transaction do not, immediately thereafter, own more
than 50% of the combined voting power of the company’s then outstanding voting
securities, in substantially the same proportions as their ownership immediately
prior to such transaction, (b) a liquidation or dissolution of the Company
or
(c) the sale of all or substantially all of the assets of the Company.
4.
TERM.
The Term
of employment hereunder will commence on the Effective Date, and end four (4)
years thereafter (the “Term”), unless terminated earlier pursuant to Section 6
of this Agreement, in which event the shorter period shall be deemed to be
the
Term for all purposes hereunder. The Term shall automatically renew (“Renewal
Term”) for successive one year terms, unless written notification of non-renewal
is provided by either party no less than 30 days prior to the expiration of
the
Term or the then current Renewal Term.
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5.
REPRESENTATIONS
AND WARRANTIES OF EXECUTIVE.
The
Executive represents and warrants to the Company as follows:
(a)
Executive
has the full right to enter into this Agreement and perform all duties
hereunder, and has made no contract or other commitment in contravention of
the
terms hereof (including, without limitation, contracts or obligations respecting
trade secrets or proprietary information or otherwise restricting competition),
or which would prevent Executive from using his best efforts in the performance
of his duties hereunder. Executive has fulfilled all of his obligations under
all prior employment or consulting agreements (or similar arrangements), and
there is not, under any of the foregoing, any existing default or breach by
Executive with respect thereto.
(b)
Executive’s
performance hereunder shall not constitute a default under any contract or
other
commitment to which the Executive is bound.
(c)
All
information furnished by Executive to the Company is to the best of Executive’s
knowledge, true and complete (including, without limitation, documentary
evidence of Executive’s identity and eligibility for employment in the United
States), and Executive will promptly advise the Company with respect to any
change in the information of record.
(d)
Executive
is not subject to any order, decree or decision precluding him from performing
his duties as described herein.
(e)
Executive
declares that he has read and understands all the terms of this Agreement;
that
he has had ample opportunity to review it with his attorney before signing
it;
that no promise, inducement, or agreement has been made except as expressly
provided in this Agreement; that it contains the entire Agreement between the
parties; and that he enters into this Agreement fully, voluntarily, knowingly
and without coercion.
6.
TERMINATION
.
(a)
Termination.
This
Agreement shall be terminated (i) upon the expiration of the Term, (ii) upon
the
death of the Executive, (iii) if the Executive shall have been substantially
unable to perform Executive’s duties hereunder for a period of three consecutive
months, (iv) by the Company for “Cause” (as defined below) and upon written
notice or (v) for Good Reason or voluntarily by the Executive.
(b)
Cause.
As used
in this Agreement, “Cause” shall mean any of the following: (i) Executive’s
willful failure or refusal, after notice thereof, to perform specific directives
of the Board when such directives are lawful and consistent with the Executives
duties and responsibilities described in this Agreement, (ii) dishonesty of
the
Executive affecting the Company, (iii) habitual abuse of drugs or alcohol,
(iv)
conviction of Executive of, or a plea by Executive of guilty or no contest
to,
any felony or any crime involving moral turpitude, fraud, gross neglect,
embezzlement or misrepresentation, (v) any gross or willful conduct of the
Executive resulting in loss to the Company or damage to the reputation of the
Company, (vi) theft from the Company, (vii) commission or participation by
Executive in any other injurious act or omission wantonly, willfully, recklessly
or in a manner which was grossly negligent against the Company; or (viii)
violation by the Executive, after notice thereof, of the material business
policies and guidelines of the Company as may be in effect from time to time.
Notwithstanding anything herein to the contrary, the Company shall notify the
Executive of any purported grounds constituting Cause, and the Executive shall
have no less than twenty (20) business days within which to cure such purported
grounds. In the event that such grounds cannot be cured within said period
of
time, and provided that it is possible for such grounds to be cured, the
Executive shall have a reasonable period of time (not to exceed sixty (60)
days)
to cure such grounds, provided that he is proceeding in good faith to cure
same.
The notice shall state with particularity the conduct of the Executive
constituting Cause. The Executive shall have a reasonable opportunity to present
his position to the Board during the notice period and prior to any termination
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(c)
Good
Reason .
For
purposes of this Agreement, the Executive shall have “Good Reason” to terminate
his employment during the Term of this Agreement only if:
(i)
the
Company fails to pay or provide any amount or benefit that the Company is
obligated to pay or provide under this Agreement and the failure is not remedied
within 30 days after the Company receives written notice from the Executive
of
such failure; or
(ii)
the
Company limits the Executive’s duties or responsibilities or power or authority
contemplated by Section 1 above in any material respect, and the situation
is
not remedied within 30 days after the Company receives written notice from
the
Executive of the situation; or
(iii)
he
is
removed from the office, title and position of Chief Financial Officer of the
Company, and the Company does not have Cause for doing so; or
(iv)
the
Company forces Executive to relocate outside of the New York metropolitan area,
and the situation is not remedied within 30 days after the Company receives
written notice from the Executive of the situation; or
(v)
a
Change
in Control occurs (as defined in Section 3).
7.
AMOUNTS
DUE UPON TERMINATION.
In the
event that the Executive’s employment is terminated by the Company during the
Term other than for Cause or is terminated by the Executive for Good Reason,
the
Company shall continue to pay to the Executive the following amounts: (i) the
portion of the Executive’s Base Salary accrued but unpaid through the date of
such termination; (ii) any other amounts to which the Executive is entitled
by
law or pursuant to the terms of any compensation or benefit plan or arrangement
in which he participated prior to the date of termination; and (iii) the
Executive’s Base Salary as in effect on the date of Executive’s termination for
a period of twelve (12) months from notice of termination hereunder payable
in
installments consistent with the Company’s normal payroll schedule, subject to
applicable withholding and other taxes . The Executive shall not be entitled
to
receive severance payments under any other severance plan maintained by the
Company if the Executive receives the payment described above. The payments
described in this Section shall not be made in the event that the Executive
voluntarily terminates employment with the Company without Good
Reason.
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8.
COVENANT
NOT TO COMPETE/NON-SOLICITATION.
Executive acknowledges and recognizes the highly competitive nature of the
Company’s business and the goodwill and business strategy of the Company
constitute a substantial asset of the Company. Executive further acknowledges
and recognizes that during the course of the Executive’s employment Executive
will receive specific knowledge of the Company’s business, access to trade
secrets and Confidential Information (as hereinafter defined), participate
in
business acquisitions and decisions, and that it would be impossible for
Executive to work for a competitor without using and divulging this valuable
Confidential Information. Executive further acknowledges that this covenant
not
to compete is an independent covenant within this Agreement. This covenant
shall
survive this Agreement and shall be treated as an independent covenant for
the
purposes of enforcement. Executive agrees to the following:
(a)
that
all
times during the Term and any Renewal Terms and for a period of one (1) year
after termination of the Executive’s employment under this Agreement or any
renewal or extension thereof (the “Restricted Period’), for whatever reason and
in any geographic areas in which the Company operated or was actively planning
on operating as of date of termination of the Executive’s employment (the
“Restricted Area”), Executive will not individually or in conjunction with
others, directly engage in Competition (as hereinafter defined) with the
business of the Company, whether as an officer, director, proprietor, employer,
employee, partner independent contractor, investor, consultant, advisor, agent
or otherwise; provided that this provision shall not apply to the
Executive’s ownership of the capital stock, solely as an investment, of
securities of any issuer that is registered under Section 12(b) or 12(g) of
the
Securities Exchange Act of 1934, as amended, and that are listed or admitted
for
trading on any United States national securities exchange or that are quoted
on
the National Association of Securities Dealers Automated Quotations System,
or
any similar system or automated dissemination of quotations of securities prices
in common use, so long as the Executive does not control, acquire a controlling
interest in or become a member of a group which exercises direct or indirect
control or, more than three percent of any class of capital stock of such
corporation;
(b)
that
during the Restricted Period and within the Restricted Area, Executive will
not,
indirectly or directly, compete with the Company by soliciting, inducing or
influencing any of the Company’s customers that have a business relationship
with the Company at any time during the Restricted Period to discontinue or
reduce the extent of such relationship with the Company;
(c)
that
during the Restricted Period and within the Restricted Area, Executive will
not
(i) directly or indirectly recruit any employee of the Company to discontinue
such employment relationship with the Company, or (ii) employ or seek to employ,
or cause to permit any business which competes directly or indirectly with
the
business of the Company to employ or seek to employ for any such business any
person who is then (or was at any time within six months prior to the date
Executive or the competitive business employs or seeks to employ such person)
employed by the Company;
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(d)
that
during the Restricted Period, Executive will not interfere with, disrupt attempt
to disrupt any past or present relationship contractual or otherwise, between
the Company and any Company’s employees.
For
purposes hereof, “Competition” shall mean any company, partnership, limited
liability company or other entity any portion of whose business directly or
indirectly competes with the business of the Company. In the event that a court
of competent jurisdiction shall determine that any provision of this Section
is
invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of this Section within the
jurisdiction of such court, such provision shall be interpreted and enforced
as
if it provided for the maximum restriction permitted under such governing law.
If the Executive shall be in violation of any provision of this Section, then
each time limitation set forth in this Section shall be extended for a period
of
time equal to the period of time during which such violation or violations
occur. If the Company seeks injunctive relief from such violation in any court,
then the covenants set forth in this Section shall be extended for a period
of
time equal to the pendency of such proceeding including all appeals by the
Executive.
9.
NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION.
(a)
Executive
acknowledges that the Company’s trade secrets, private or secret processes,
methods and ideas, as they exist from time to time, and information concerning
the Company’s services, business records and plans, inventions, acquisition
strategy, price structure and pricing, discounts, costs, computer programs
and
listings, source code and/or subject code, copyright trademark proprietary
information, formulae, protocols, forms, procedures, training methods,
development technical information, know-how, show-how, new product and service
development, advertising budgets, past, present or planned marketing, activities
and procedures, method for operating the Company’s business, credit and
financial data concerning the Company’s customers, and marketing; advertising,
promotional and sales strategies, sales presentations, research information,
revenues, acquisitions, practices and plans and information which is embodied
in
written or otherwise recorded form, and other information of a confidential
nature not known publicly or by other companies selling to the same markets
and
specifically including information which is mental, not physical (collectively,
the “Confidential Information”) are valuable, special and unique assets of the
Company, access to and knowledge of which have been provided to Executive by
virtue of Executive’s association with the Company. In light of the highly
competitive nature of the industry in which the Company’s business is conducted,
Executive agrees that all Confidential Information, heretofore or in the future
obtained by Executive as a result of Executive’s association with the Company
shall be considered confidential.
(b)
The
Executive agrees that the Executive shall (i) hold in confidence and not
disclose or make available to any third party any such Confidential Information
obtained directly or constructively from the Company, unless so authorized
in
writing
by the Company; (ii) exercise all reasonable efforts to prevent third parties
from gaining access to the Confidential Information; (iii) restrict the
disclosure or availability of the Confidential Information to those employees
or
agents of the Company who have a need to know the information in order to
further the business purposes of the Company; (iv) not copy or modify any
Confidential Information without prior written consent of the Company, provided,
however,
that
such
copy or modification of any Confidential Information does not include any
modifications or copying which would otherwise prevent the Executive from
performing his/her duties and responsibilities to the Company; (v) take such
other protective measures as may be reasonably necessary to preserve the
confidentiality of the Confidential Information; and (vii) relinquish all rights
he may have in any matter, such as drawings, documents, models, samples,
photographs, patterns, templates, molds, tools or prototypes, which may contain,
embody or make use of the Confidential Information; promptly delivery to the
Company any such matter as the Company may direct at any time, and not retain
any copies or other reproductions thereof.
7
(c)
Executive
further agrees (i) that Executive shall promptly disclose in writing to the
Company all ideas, inventions, improvements and discoveries which may be
conceived, made or acquired by Executive as the direct or indirect result of
the
disclosure by the Company of the Confidential Information to Executive; (ii)
that all such ideas, inventions, improvements and discoveries conceived, made
or
acquired by Executive, alone or with the assistance of others, relating to
the
Confidential Information in accordance with the provisions hereof and that
Executive shall not acquire any intellectual property rights under this
Agreement except the limited right to use set forth in this Agreement; (iii)
that Executive shall assist in the preparation and execution of all
applications, assignments and other documents which the Company may deem
necessary to obtain patents, copyrights and the like in the United States and
in
jurisdictions foreign thereto, and to otherwise protect the Company.
(d)
Upon
written request of the Company, Executive shall immediately return to the
Company all written materials containing the Confidential Information as well
as
any other books, records and accounts relating in any manner to the Company
or
its business. Executive shall also deliver to the Company written statements
signed by Executive certifying all materials have been returned within five
days
of receipt of the request.
10.
ACKNOWLEDGMENT
BY EXECUTIVE.
The
Executive acknowledges and confirms that (a) the restrictive covenants contained
in this Agreement are reasonably necessary to protect the legitimate business
interests of the Company, and (b) the restrictions contained herein (including
without limitation the length of the term of the provisions of the covenant
not
to compete) are not overbroad, overlong, or unfair and are not the result of
overreaching, duress or coercion of any kind. The Executive further acknowledges
and confirms that his full, uninhibited and faithful observance of each of
the
covenants contained herein will not cause him any undue hardship, financial
or
otherwise, and that enforcement of each of the covenants contained herein will
not impair his ability to obtain employment commensurate with his abilities
and
on terms fully acceptable to him or otherwise to obtain income required for
the
comfortable support of him and his family and the satisfaction of the needs
of
his creditors. The Executive acknowledges and confirms that his special
knowledge of the business of the Company is such as would cause the Company
serious injury or loss if he were to use such ability and knowledge to the
benefit of a competitor or were to compete with the Company in violation of
the
terms hereof. The Executive further acknowledges that the restrictions contained
herein are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company’s successors and assigns.
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11.
INJUNCTION.
It is
recognized and hereby acknowledged by the parties hereto that a breach by the
Executive of any of the covenants contained in Sections 8 and 9 of this
Agreement will cause irreparable harm and damage to the Company, the monetary
amount of which may be virtually impossible to ascertain. As a result, the
Executive recognizes and hereby acknowledges that the Company shall be entitled
to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in Sections
8
and 9 of this Agreement by the Executive or any of his affiliates, associates,
partners or agents, either directly or indirectly, and that such right to
injunction shall be cumulative and in addition to whatever other remedies the
Company may possess. In addition, upon any violation of the covenants contained
in Sections 8 and 9, all severance payments and benefits to which the Executive
may be entitled to hereunder shall immediately cease and be without further
force and effect.
12.
INDEMNIFICATION
BY THE COMPANY.
To the
fullest extent permitted by applicable law, the Company shall indemnify, defend
and hold harmless the Executive from and against any and all claims, demands,
actions, causes of action, liabilities, losses, judgments, fines, costs and
expenses (including reasonable attorneys’ fees and settlement expenses) arising
from or relating to his service or status as an officer, director, Executive,
agent or representative of the Company or any subsidiary of the Company or
in
any other capacity in which the Executive serves or has served at the request
of, or for the benefit of, the Company or its subsidiaries, including but not
limited to claims alleged by Executive’s former employer regarding solicitation
of employees; provided, however, that the Company shall not be responsible
to
indemnify the Executive for any actions of gross negligence or willful
misconduct. The Company’s obligations under this Section 12 shall be in addition
to, and not in derogation of, any other rights the Executive may have against
the Company to indemnification or advancement of expenses, whether by statute,
contract or otherwise.
13.
PROPOSED
FINANCING TRANSACTION .
The
parties acknowledge that the Company is expected to enter into a financing
transaction with Stanford International Bank Limited pursuant to the term sheet
substantially in the form of Exhibit “A” attached hereto.
14.
SURVIVAL
.
The
provisions of Sections 8 through 27 shall survive the termination of this
Agreement, as applicable.
15.
NOTICES
.
All
notices required or permitted to be given hereunder shall be in writing and
shall be personally delivered by courier, sent by registered or certified mail,
return receipt requested or sent by confirmed facsimile transmission addressed
as set forth herein. Notices personally delivered, sent by facsimile or sent
by
overnight courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the earlier
of receipt by the addressee, as evidenced by the return receipt thereof, or
three (3) days after deposit in the U.S. mail. Notice shall be sent to the
addresses set forth in the introductory paragraph of this Agreement, or to
such
other address as either party hereto may from time to time give notice of to
the
other.
16.
HEADINGS
.
All
sections and descriptive headings of this Agreement are inserted for convenience
only, and shall not affect the construction or interpretation hereof.
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17.
COUNTERPARTS
.
This
Agreement may be executed in any number of counterparts, each of which, when
executed and delivered, shall be an original, but all counterparts shall
together constitute on e and the same instrument.
18.
ENTIRE
AGREEMENT.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and, upon its effectiveness, shall
supersede all prior agreements, understandings and arrangements, both oral
and
written, between the Executive and the Company (or any of its Affiliates) with
respect to such subject matter. This Agreement may not be modified in any way
unless by a written instrument signed by both the Company and the Executive.
19.
GOVERNING
LAW.
This
Agreement is to be construed and enforced according to the laws of the State
of
New York. The prevailing party shall be entitled to recover legal fees and
costs
from the other party in any dispute hereunder. The parties agree to accept
any
service of process by mail and to the exclusive venue of courts of competent
jurisdiction located in New York County, New York in any dispute arising out
of
the employment by the Company of the Executive, compensation or any damages
in
respect thereof.
20.
CONSTRUCTION.
This
Agreement shall not be construed more strictly against one party than the other,
merely by virtue of the fact that it may have been prepared by counsel for
one
of the parties, it being recognized that both Company and Executive have
contributed substantially and materially to the negotiation and preparation
of
this Agreement.
21.
SEVERABILITY.
Inapplicability or unenforceability of any provision of this Agreement shall
not
limit or impair the operation or validity of any other provision of this
Agreement or any such other instrument.
22.
NON-ASSIGNABILITY.
The
Executive shall not have the right to assign or delegate his rights or
obligations hereunder, or any portion thereof, to any other person.
23.
BINDING
EFFECT.
This
Agreement shall be for the benefit of and binding upon the parties hereto and
their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns, including, without limitation, any
successor to the Company, whether by merger, consolidation, sale of stock,
sale
of assets or otherwise.
24.
WAIVERS.
The
waiver by either party hereto of a breach or violation of any term or provision
of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach or violation.
25.
NO
THIRD PARTY BENEFICIARY.
Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon or give any person other than the Company, the parties hereto and
their respective heirs, personal representatives, legal representatives,
successors and assigns, any rights or remedies under or by reason of this
Agreement.
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26.
NON-DISPARAGEMENT.
During
the term of Executive’s employment and thereafter, neither the Executive nor the
Company’s, directors and officers shall disparage each other.
27.
WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
ANY
OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER OR IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COMPANY ENTERING
INTO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR OUT OF THE EMPLOYMENT
OF
EXECUTIVE BY THE COMPANY, COMPENSATION OR ANY DAMAGES IN RESPECT THEREOF.
[Signatures
Begin on Following Page]
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IN
WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above written.
| HEALTH SYSTEMS SOLUTIONS, INC. | ||
| |
|
|
| By: | /s/ X.X. Xxxxxxx | |
|
X.X. Xxxxxxx |
||
| President | ||
| EXECUTIVE | ||
| |
|
|
| /s/ Xxxxxxx X. Xxxxxx | ||
|
Xxxxxxx X. Xxxxxx |
||
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