1
EXHIBIT 10.16
EMPLOYMENT AGREEMENT dated as of
November 1, 1998, between ADVANCED
HEALTH CORPORATION, a Delaware
corporation (the "Company"), and
XXXXXX X. XXXXX (the "Employee").
The Company desires to formalize the employment arrangements between the
Company and the Employee and to continue to employ the Employee as the Executive
Vice President, Chief Information Officer of the Company, and as President of
Advanced Health Technologies Corporation, a Delaware corporation and
wholly-owned subsidiary of the Company and the Employee desires to accept such
continued employment by the Company, on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment. The Company hereby employs the Employee, and the Employee
hereby accepts employment by the Company, upon the terms and subject
to the conditions hereinafter set forth.
2. Term. The employment of the Employee hereunder shall be for the
four-year period commencing on the date hereof and ending on November
1, 2002 (the "Base Term"). The Base Term shall automatically renew for
consecutive one-year terms (each, a "Renewal Term" and together with
the Base Term, collectively, the "Employment Period") unless either
the Company or the Employee gives the other party hereto at least 90
days' prior written notice before the end of the Employment Period of
such party's intent not to renew this Agreement.
3. Duties. The Employee shall be employed as Executive Vice President,
Chief Information Officer of the Company, and as President of Advanced
Health Technologies Corporation or in such other position as the
Company and the Employee shall agree in writing. The Employee shall
perform such duties and services as are appropriate and commensurate
with the Employee's position with the Company and as would otherwise
be consistent in stature and prestige with the position of Executive
Vice President, Chief Information Officer and as President of a wholly
owned subsidiary of a corporation with similar operations as the
Company, as the same may be assigned to him from time to time by the
Board of Directors of the Company (the "Board").
4. Time to be Devoted to Employment; Place of Employment. (a) Except for
three weeks vacation per year (in addition to public holidays),
absences due to temporary illness, during the Employment Period the
Employee shall devote substantially all of his business time,
attention and energies to the business and affairs of the Company.
(b) During the Employment Period, the Employee shall not be engaged in
any other business activity which conflicts with the duties of the
Employee hereunder, whether or not such activity is pursued for gain,
profit or other pecuniary advantage.
2
5. Compensation; Reimbursement. (a) During the Employment Period, the
Company (or at the Company's option, any subsidiary or affiliate
thereof) shall pay to the Employee an annual salary (the "Base
Salary") of not less than $190,000, payable in such installments as is
the policy of the Company with respect to its senior executive
officers. Such Base Salary will be reviewed at least annually and may
be increased by the Board (or, if such authority shall be delegated by
the Board to the Compensation Committee thereof, then by such
Committee) in its sole discretion.
(b) From time to time the Employee may also receive cash bonuses at
the discretion of the Board or the Compensation Committee.
(c) During the Employment Period and to the extent available to
employees of the Company, the Employee shall be entitled to
participate in all of the Company's benefit plans, pension and
retirement plans, life insurance, hospitalization and surgical and
major medical coverages, sick leave, vacation and holiday policies,
disability coverage and such other fringe benefits enjoyed by other
employees at substantially the same employment level as the Employee.
(d) The Company shall reimburse the Employee, in accordance with the
practice from time to time for other employees of the Company, for all
reasonable and necessary traveling expenses, disbursements and other
reasonable and necessary incidental expenses incurred by him for or on
behalf of the Company in the performance of his duties hereunder upon
presentation by the Employee to the Company of appropriate vouchers.
(e) The Employee shall maintain a suitable automobile for business
use. During the Employment Period, the Company shall pay the Employee
a $400 per month car allowance towards the costs of leasing, using,
insuring, repairing and maintaining such automobile.
(f) Following the expiration or termination of this Agreement for any
reason, the Employee shall have the right to maintain any (i) health
and life insurance benefits provided by the Company to the extent
provided under applicable law and (ii) any life insurance benefits
provided by the Company so long as the Employee makes the premium
payments relating to such life insurance.
6. Involuntary Termination. (a) If the Employee is incapacitated or
disabled by accident, sickness or other cause so as to render him
mentally or physically incapable of performing the services required
to be performed by him under this Agreement for a period of 90 days or
longer during any six-month period (such condition being herein
referred to as a "Disability"), prior to the Employee resuming the
performance of his duties as contemplated herein, the Company may
terminate the employment of the Employee under this Agreement (an
"Involuntary Termination"). Until the Company or the Employee shall
have terminated the Employee's employment hereunder, the Employee
shall be entitled to receive his compensation and other benefits as
set forth in this Agreement notwithstanding any such physical or
mental disability.
(b) If the Employee dies during the Employment Period, his employment
hereunder shall be deemed to cease as of the date of his death, and
the termination of his employment occasioned thereby shall be deemed
an Involuntary Termination.
2
3
7. Termination for Cause. The Company may terminate the Employee's
employment hereunder for "Cause" (a "Termination for Cause"). For
purposes of this Agreement, "Cause" shall be limited to:
(i) the willful and continued failure by the Employee substantially
to perform the duties described in Section 3 (other than any
failure resulting from an illness or other similar incapacity or
disability), for 30 days after a written demand for performance
is delivered to the Employee on behalf of the Board that
specifically identifies the manner in which it is alleged that
the Employee has not substantially performed his duties; or
(ii) the conviction by the Employee of misappropriation of funds,
properties or assets of the Company, sexual harassment, chronic
alcoholism or drug addiction, slander or libel concerning the
Company or a material tort relating to his office or employment
with the Company that has a material adverse effect on the
business, affairs, conditions (financial or otherwise),
operations, results of operations, assets, properties or rights,
liabilities or obligations, customer or employee relationships or
prospects of the Company.
8. Termination Without Cause. The Company may terminate the employment of
the Employee hereunder at any time during the Employment Period
without "Cause" (a "Termination Without Cause"). It is expressly
acknowledged that if Employee shall not report to the CEO of the
Company, such change in reporting structure shall constitute a
Termination Without Cause. It is expressly acknowledged that
non-renewal of this Agreement as contemplated by Section 2 shall not
constitute a Termination Without Cause. Further, if Employee's Base
Salary shall be reduced without Employee's consent, such action by
Employer shall constitute a Termination Without Cause.
9. Voluntary Termination. Any termination of the employment of the
Employee hereunder otherwise than as a result of an Involuntary
Termination, a Termination for Cause or a Termination Without Cause
shall be deemed to be a "Voluntary Termination." A Voluntary
Termination shall be deemed to be effective immediately upon written
notice of such termination to the Company.
10. Change in Control. On a Change of Control, all options to purchase
common stock of the Company then held by the Employee shall
immediately vest and shall be exercisable for a period of five years
from the date of the Change in Control. For purposes of this
Agreement, a "Change in Control" of the Company shall be deemed to
have occurred if (a) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the common stock
of the Company (the "Common Stock") would be converted into cash,
securities or other property, other than a merger of the Company in
which the holders of the Common Stock immediately prior to the merger
have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company; or (b) the stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company; or
3
4
(c) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 30% or more of the Company's
outstanding Common Stock; or (d) during any period of two consecutive
years, individuals who at the beginning of such period constitute the
entire Board shall cease for any reason to constitute a majority
thereof unless the election, or the nomination for election by the
Company's stockholders, of each new director was approved by a vote of
at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
11. Effect of Termination of Employment. (a) Upon the termination of the
Employee's employment hereunder pursuant to a Voluntary Termination or
a Termination for Cause, neither the Employee nor his beneficiary or
estate shall have any further rights or claims against the Company
under this Agreement except to receive:
(i) any unpaid portion of the Base Salary provided for in Section
5(a), computed on a pro rata basis to the date of termination;
(ii) cash compensation equal to the product of (A) the number of days
of accrued vacation, if any, accumulated by the Employee to the
effective date of termination divided by the total number of
work days per annum for which the Employee receives a Base
Salary multiplied by (B) the Base Salary; and
(iii) reimbursement for any expenses for which the Employee shall not
have theretofore been reimbursed as provided in Section 5(d).
In addition, current arrangements concerning indemnification,
including but not limited to payment of expenses of officers,
directors, and employees in connection with litigation involving the
Company shall remain in full force and effect following termination.
(b) Upon the termination of the Employee's employment hereunder
pursuant to an Involuntary Termination, neither the Employee nor his
beneficiary or estate shall have any further rights or claims against
the Company under this Agreement except the right (i) to receive a
termination payment equal to that provided for in Section 11(a)
hereof, plus (ii) to receive a cash severance payment in an aggregate
amount equal to the cash compensation received by the Employee during
the 3-month period immediately prior to the effective date of the
Involuntary Termination, payable in equal monthly installments, plus
(iii) to be immediately vested in all stock options granted to the
Employee by the Company that would have vested during the three-month
period immediately following the effective date of the Involuntary
Termination. In addition, current arrangements concerning
indemnification, including but not limited to payment of expenses of
officers, directors, and employees in connection with litigation
involving the Company shall remain in full force and effect following
termination.
(c) Upon the termination of the Employee's employment hereunder
pursuant to a Termination Without Cause, neither the Employee nor his
beneficiary or estate shall have any further rights or claims against
the Company under this Agreement except the right (i) to receive a
termination payment equal to the amount provided for in Section 11(a)
hereof , (ii) to receive a cash severance payment in an aggregate
amount equal to twice the base salary and bonus received by the
Employee during the 12-month period immediately prior to the
effective date of the Termination Without Cause, plus car allowance,
health insurance and life insurance premium payments, professional
licensing and membership fees and dues
4
5
for such one year period, payable in one lump sum within 10
days of such termination if such termination occurs within six months
of a Change in Control, and otherwise in 24 equal monthly
installments, (iii) reasonable cell phone and pager use, and
inclusion in the Company's 401(k) plan for the 24-month period
following such termination; plus (iv) all options to purchase common
stock of the Company, which shall include any parent or affiliated
entity shall fully vest and shall be exercisable for a period of five
years following the date of such Termination. In addition, current
arrangements concerning indemnification, including but not limited to
payment of expenses of officers, directors, and employees in
connection with litigation involving the Company shall remain in full
force and effect following termination.
12. Non-Competition; Non-Disclosure of Information. (a) The Employee shall
not during the Employment Period, and for a period of one year
following the termination of the Employment Period, (i) directly or
indirectly engage in any Competitive Business (as defined below),
whether such engagement shall be as an employee, employer, owner,
consultant, partner or other participant in any Competitive Business,
(ii) assist others in engaging in any Competitive Business in the
manner described in the foregoing clause (i), (iii) induce employees
of the Company to terminate their employment with the Company or
engage in any Competitive Business or (iv) induce customers or vendors
of the Company to alter or terminate their business relationship with
the Company; provided, however, that the Employee may (A) own directly
or indirectly, solely as a passive investment, securities of any
Competitive Business traded on any national securities exchange if the
Employee is not a controlling person of, nor a member of a group which
controls such person and does not, directly or indirectly, own 5% or
more of any class of securities of such person, and (B) serve as the
Chief Information Officer or information technology executive of a
Blue Cross or Blue Shield Plan without violating this Section 12. As
used herein, the term "Competitive Business" shall mean any business
which, directly or indirectly, competes with the Company or any of its
subsidiaries in the business of primarily providing physician practice
management, physician network management and/or clinical information
technology to or for physicians to the extent such businesses are
conducted by the Company and its subsidiaries at the time of any
termination of the Employment Period.
(b) The Employee understands that the foregoing restrictions may
limit his ability to earn a livelihood in a Competitive Business,
but he nevertheless believes that he has received and will
receive sufficient consideration and other benefits in connection
with his employment to clearly justify such restrictions which,
in any event, the Employee does not believe would prevent him
from earning a living. Nothing herein contained shall prohibit
the Employee from engaging in a business that is not a
Competitive Business.
(c) The Employee agrees that he will not, at any time during or after
the Employment Period, disclose to any person, firm, corporation
or other entity, except as required by law, any secret or
confidential information concerning the business, clients or
affairs of the Company or any subsidiary or affiliate thereof for
any reason or purpose whatsoever other than in furtherance of the
Employee's work for the Company nor shall the Employee make use
of any of such secret or confidential information for his own
purpose or for the benefit of any person, firm, corporation or
other business entity except the Company or any subsidiary or
affiliate thereof.
5
6
13. Company Right to Inventions. The Employee shall promptly disclose,
grant and assign to the Company for its sole use and benefit any and
all inventions, improvements, technical information, methods and
suggestions (the "Inventions") relating in any way to the business of
providing physician practice management, physician network management
and/or clinical information technology to or for physicians, which he
may develop or acquire during the period of the Employee's employment
with the Company prior to any termination of employment (whether or
not during usual working hours), together with all patent
applications, patents, copyrights and reissues thereof that may at any
time be granted for or upon any such Inventions. In connection
therewith:
(a) the Employee shall without charge, but at the expense of the
Company, promptly at all times hereafter execute and deliver such
applications, assignments, descriptions and other instruments as
may be reasonably necessary or proper in the reasonable opinion
of the Company to vest title to any such inventions,
improvements, technical information, methods, patent
applications, patents, copyright applications, copyrights or
reissues of any thereof in the Company and to enable it to obtain
and maintain the entire right and title thereto throughout the
world; and
(b) the Employee shall render to the Company at its expense
(including a reasonable payment for the time involved in case he
is not then in its employ) all such assistance as it may
reasonably require in the prosecution of applications for said
patents, copyrights or reissues thereof, in the prosecution or
defense or interferences which may be declared involving any said
applications, patents or copyrights and in any litigation in
which the Company may be involved relating to any such patents,
copyrights, inventions, improvements, technical information or
methods.
14. Enforcement. It is the desire and intent of the parties hereto that
the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Agreement shall be adjudicated to be
invalid or unenforceable, such provision shall be deemed amended to
delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such amendment to apply only with respect to the
operation of such provision in the particular jurisdiction in which
such adjudication is made; provided, however, that if any one or more
of the provisions contained in this Agreement shall be adjudicated to
be invalid or unenforceable because such provision is held to be
excessively broad as to duration, geographical scope, activity or
subject, such provision shall be deemed amended by limiting and
reducing it so as to be valid and enforceable to the maximum extent
compatible with the applicable laws of such jurisdiction, such
amendment to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is
made.
15. Remedies; Survival. (a) The Employee acknowledges and understands that
the provisions of this Agreement are of a special and unique nature,
the loss of which cannot be accurately compensated for in damages by
an action at law, and that the breach of the provisions of this
Agreement would cause the Company irreparable harm. In the event of a
breach by the Employee of the provisions of Section 12 or 13 hereof,
the Company shall be entitled to an injunction restraining him from
6
7
such breach. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available for
any breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the provisions of Sections 12, 13, 14 and this Section
15 shall survive the expiration or other termination of this
Agreement until, by their terms, such provisions are no longer
operative.
(c) It is understood and agreed that the provisions of Sections 12
and 13 of this Agreement are separate and distinct from any other
agreement between the parties hereto. Accordingly, in the event
of a breach of such provisions, the breaching party shall only be
held responsible for damages arising under such provisions and
not for any damages which may be claimed to arise under or with
respect to any other agreement that is not separately breached.
16. Notices. Notices and other communications hereunder shall be in
writing and shall be delivered personally or sent by air courier or
first class certified or registered mail, return receipt requested and
postage prepaid, addressed as follows:
If to the Employee:
Xxxxxx X. Xxxxx
126 Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company:
Advanced Health Corporation
000 Xxxxx Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman and CEO
Or to such other address as the party to whom notice is to be given
may have furnished to the other party in writing in accordance
herewith. All notices and other communications hereunder shall be
deemed to have been given on the date of delivery if personally
delivered; on the business day after the date when sent if sent by air
courier; and on the third business day after the date when sent if
sent by mail, in each case addressed to such party as provided in this
Section 16.
17. Binding Agreement. This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
devisees. If the Employee should die while any amount would still be
payable to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the beneficiary designated by the
Employee in writing delivered to the Company, or if there be no such
designated beneficiary, to his estate.
18. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York
applicable to contracts made and to be performed wholly therein.
7
8
19. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party must be in writing and
shall not operate or be construed as a waiver of any subsequent breach
by such other party.
20. Entire Agreement; Amendments; Execution. This Agreement contains the
entire agreement between the parties with respect to the subject
matter contained herein and supersedes all prior agreements or
understandings among the parties with respect thereto. This Agreement
may be amended only by an agreement in writing signed by the parties
hereto. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original document but all of which
shall constitute but one agreement.
21. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
22. Severability. Any provisions of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
23. Assignment. With respect to the Employee, this Agreement is personal
in its nature and the Employee shall not assign or transfer this
Agreement or any rights or obligations hereunder. The Company may in
its sole discretion assign or otherwise transfer this Agreement and
the provisions hereof (including, without limitation, Sections 12, 13
and 14) shall inure to the benefit of, and be binding upon, each
successor of the Company, whether by merger, consolidation, transfer
of all or substantially all assets, or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
ADVANCED HEALTH CORPORATION
/s/ Xxxxxxxx X. Xxxxxxx, MD
---------------------------
Name: Xxxxxxxx X. Xxxxxxx, MD
Title: Chairman and CEO
/s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
8
