SECOND AMENDMENT TO CHANGE IN CONTROL EMPLOYMENT AGREEMENT
Exhibit 10.9
SECOND
AMENDMENT
TO
CHANGE IN CONTROL EMPLOYMENT AGREEMENT
This
Second Amendment to Change in Control Employment Agreement (this “Amendment”)
is made and entered into by and between Healthaxis, Ltd., a Texas limited
partnership (“Healthaxis”), and Xxxx Xxxxxxxxx (the “Executive”),
to be effective as of the 13th day of May, 2005.
WHEREAS,
Healthaxis and Executive are parties to that certain Change in Control Employment
Agreement dated as of January 1, 2002 (the “Agreement”), as amended
pursuant to that certain First Amendment to Change in Control Employment Agreement
dated as of January 1, 2003, which sets forth, among other things, the terms
and conditions pursuant to which Healthaxis or its successor will continue to employ
the Executive and/or the amount of certain payments that would be made to the
Executive upon certain events following a Change in Control;
WHEREAS,
the parties desire to further amend the Agreement as provided herein; and
WHEREAS,
except as otherwise defined herein, all capitalized terms used in this Amendment shall
have the meaning specified in the Agreement.
NOW,
THEREFORE, for and in consideration of the mutual covenants and agreements contained
herein and in the Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, Healthaxis
and Executive do hereby agree as follows:
1.
Change in Control. The parties acknowledge and agree that a “Change in Control” has
occurred under the terms of the Agreement as a result of the consummation of the
transactions contemplated by that certain Stock and Warrant Purchase Agreement dated
February 23, 2005 by and between Healthaxis and Tak Investments, Inc. (the “Purchase
Agreement”). As a result, the “Effective Date” referenced in the
Agreement shall be the date of this Amendment and the “Employment Period” referenced
in the Agreement shall henceforth commence.
2.
New Travel Responsibilities. As a result of the consummation of the
transactions contemplated by the Purchase Agreement, Executive acknowledges that he
may be required to travel on Healthaxis business to India and the Virginia/Washington
D.C. area more than has been the case in the past, and Executive agrees that
Healthaxis’ requirement that the Executive engage in such travel shall not
constitute grounds for Executive’s termination of employment with “Good
Reason” under Section 4(c)(iii) of the Agreement. Notwithstanding the
foregoing, the Executive shall continue to be based at the Healthaxis office
provided for in Section 3(a)(i)(B) of the Agreement.
3.
Elimination of Executive’s Unilateral Termination Period. The Agreement is
hereby amended by deleting the final sentence of Section 4(c) of the Agreement
entitling the Executive to terminate his employment with Healthaxis for any
reason during the 30-day period immediately following the first anniversary of the
Effective Date.
4.
Cash Payment;Vesting of Options; Additional Grant. In consideration of Executive’s
foregoing agreement to the amendments to the Agreement and the other covenants and
agreements contained herein, Healthaxis does hereby agree (a) to pay Executive a
lump sum payment of $10,000 in cash within five (5) business days of the closing of
the transactions contemplated by the Purchase Agreement (subject to applicable tax
withholding requirements), (b) that all outstanding stock options awarded by
Healthaxis or its affiliates to the Executive prior to the date of this Amendment
shall become 100% vested and the related stock options shall become fully
exercisable, and (c) simultaneously with the closing of the transactions
contemplated by the Purchase Agreement, the Executive shall be granted an
additional 60,000 stock options under the Healthaxis Inc. 2000 Stock Option Plan, which
additional options shall have an exercise price equal to the market price of
Healthaxis common stock on the date of the grant. Of these stock options so
granted, 25% shall vest on the date of grant, and an additional 25% shall vest on
each of the following three anniversary dates of the date of grant; provided, that
such options shall be subject to the otherwise applicable accelerated vesting and
extended exercise provisions of Section 5(a)(ii) of the Agreement. Healthaxis and the
Executive agree to take such further actions as shall be necessary to document the
foregoing agreement relating to the vesting of stock options and additional option
grant.
Except
as expressly amended as provided herein, the Agreement shall continue in full force
and effect in accordance with its terms.
EXECUTED
by the parties to be effective as of the date set forth hereinabove.
| HEALTHAXIS: | EXECUTIVE: | |
| Healthaxis, Ltd. | ||
| /s/ Xxxx Xxxxxxxxx | ||
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| By: | Healthaxis Managing
Partner, LLC, General Partner |
Xxxx Xxxxxxxxx |
| By: | /s/ Xxxxx. X. XxXxxx | |
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| Xxxxx X. XxXxxx | ||
| President | ||
