EXHIBIT 10.10
XXXXXXXXXXXXX.XXX
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is entered into by and between
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XxxxxxXxxxxxx.xxx (the "Company") and Xxxxxx Xxxxxx ("Xxxxxx") effective as of
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the 20th day of May, 1999 (the "Employment Start Date"), provided however that
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if the Consulting Agreement (defined below) is terminated by either party for
any reason or no reason prior to the Employment Start Date, this Agreement shall
be null, void and of no effect.
1. Employment Relationship. If the Consulting Agreement dated July 1,
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1998 between the Company and Xxxxxx (the "Consulting Agreement") has not been
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terminated prior to the Employment Start Date pursuant to Section 1(c) thereof,
beginning on the Employment Start Date (i) Xxxxxx will be employed as a full-
time employee of Company, initially serving as Chief Executive Officer, and (ii)
the Consulting Agreement shall automatically terminate and the terms of Xxxxxx'x
relationship with the Company shall be governed by this Agreement and not the
Consulting Agreement. Xxxxxx agrees to perform such services as are
commensurate with such a position and as may be required or directed by the
Board of Directors of Company. Xxxxxx agrees to perform such other duties and
responsibilities as may be reasonably required of him by the Board of Directors
of Company. Xxxxxx agrees that, to the best of his ability and experience,
Xxxxxx will at all times conscientiously perform all of the duties and
obligations assigned to Xxxxxx in accordance with this Agreement.
(a) Salary. Beginning on the Employment Start Date, Xxxxxx'x initial
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monthly base salary as an employee shall be $19,583.33 per month ($235,000 on an
annualized basis), subject to review and adjustment from time to time thereafter
in accordance with the Company's policies. Such salary shall be paid in
accordance with Company's normal payroll practices.
(b) Bonus. In addition to the base salary specified in Section 1(a),
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during the first three years of this Agreement, the Company will pay Xxxxxx on a
monthly basis a bonus amount, equal to between 30% and 60% of Xxxxxx'x monthly
base salary (such percentage to be determined upon Xxxxxx'x achievement of
certain performance milestones as mutually agreed between Xxxxxx and the Board
of Directors), provided however that if Xxxxxx'x employment is terminated for
any reason or no reason, he shall not receive the continued payment of any such
monthly bonus amount.
(c) Other Benefits. After the Employment Start Date, Xxxxxx will be
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entitled to participate in or receive benefits commensurate with Xxxxxx'x
position and those of similarly situated employees of Company in accordance with
Company's standard employee policies in effect from time to time. Company may
change, amend, modify or terminate any benefit plan from time to time.
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(d) Withholding, Etc. Company may make such deductions, withholdings
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and other payments from all sums payable pursuant to this Agreement which are
required by law or as Xxxxxx requests for taxes and other charges.
(e) Termination. Xxxxxx'x employment with the Company will be on an
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"at will" basis, which means that either Xxxxxx or Company may terminate
Xxxxxx'x employment at any time for any reason or no reason, without further
obligation or liability, subject to the terms and conditions of this Agreement.
2. Expenses. The Company will reimburse Xxxxxx for reasonable expenses
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actually incurred in connection with his performance of services as an employee,
and evidenced by his submission of receipts. In addition, Xxxxxx will be
entitled to four weeks paid vacation per year, which shall begin to accrue as of
July 1, 1998. The Company will pay Xxxxxx a monthly automobile allowance of
$500.00, a monthly club allowance of $500.00 per month, and his annual YPO dues
for the international and local chapters.
3. Supervision of Xxxxxx'x Services. All services to be performed by
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Xxxxxx will be as agreed between Xxxxxx and the Company's Board of Directors.
Xxxxxx will be required to report to the Board of Directors concerning the
services performed under this Agreement. The nature and frequency of these
reports will be left to the discretion of the Board of Directors.
4. Non-Competition. While Xxxxxx is providing employment services
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hereunder and except for such activities, if any, as may be set forth in Exhibit
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A attached hereto or as may hereafter be consented to by Company in its sole
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discretion, Xxxxxx will not engage in any other business or render any
commercial or professional services, directly or indirectly, to any other person
or organization, whether for compensation or otherwise, provided that Xxxxxx may
(i) provide incidental assistance to family members on matters of family
business, and (ii) sit on the boards of charitable and nonprofit organizations
which do not compete with Company, provided in each case that such activities do
not conflict with or interfere with Xxxxxx'x obligations to Company. Xxxxxx may
make personal investments in nonpublicly traded corporations, partnerships or
other entities, which do not at the time of such investment provide health
information, products and services directly to the general public (including
linkages between consumers and health providers, payors and ancillary entities)
in various media, including but not limited to radio, television, internet,
interactive television, interactive cable and satellite (the foregoing
description of business activities and markets shall be referred to in this
Agreement as "Competitive Businesses"). Notwithstanding anything to the
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contrary contained in this Agreement, Xxxxxx may make personal investments in
publicly traded corporations regardless of the business they are engaged in,
provided that Xxxxxx does not at any time own in excess of 1% of the issued and
outstanding stock of any such publicly traded corporation that is engaged in any
Competitive Businesses.
5. Place of Employment. During the term of this Agreement, Xxxxxx shall
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render his services principally at the principal executive offices of Company
(Company currently anticipates that such offices will be relocated). In
addition, Xxxxxx shall do such traveling as shall be reasonably necessary in
connection with his duties and responsibilities hereunder.
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6. Confidentiality Agreement. Xxxxxx shall sign, or has signed, a
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Confidential Information and Invention Assignment Agreement substantially in the
form attached to this Agreement as Exhibit B (the "Proprietary Information
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Agreement"), prior to or on the date on which Xxxxxx'x consulting relationship
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with the Company commences.
7. Conflicts with this Agreement. Xxxxxx represents and warrants that
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Xxxxxx is not under any pre-existing obligation in conflict or in any way
inconsistent with the provisions of this Agreement. Xxxxxx warrants that Xxxxxx
has the right to disclose or use all ideas, processes, techniques and other
information, if any, which Xxxxxx has gained from third parties, and which
Xxxxxx discloses to the Company in the course of performance of this Agreement,
without liability to such third parties. Xxxxxx represents and warrants that
Xxxxxx has not granted any rights or licenses to any intellectual property or
technology that would conflict with Xxxxxx'x obligations under this Agreement.
Xxxxxx will not knowingly infringe upon any copyright, patent, trade secret or
other property right of any former client, employer or third party in the
performance of the services required by this Agreement.
8. Severance. If, during the period beginning on the Employment Start
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Date and ending on the later of: (i) one year after the date a merger between
the Company and Xxxxxx Health Enterprises (the "Merger") is consummated, or (ii)
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one year after the earlier of: (A) the date the merger agreement relating to
the Merger is terminated, or (B) the letter of intent relating to the Merger is
terminated (the "Severance Period"), Xxxxxx'x employment is terminated by the
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Company or its successor for any reason other than Cause (as defined below), as
determined by the Company's Board of Directors, Green will be entitled to
receive continued payment of his monthly base salary on a monthly basis, for
each remaining month in the Severance Period (subject to proration for any
remaining partial month) (the "Severance"), subject to Xxxxxx'x continued
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compliance with all the terms of the Proprietary Information Agreement, the Non-
Competition Agreement and the surviving terms of this Agreement.
9. Definition of "Cause." As used in this Agreement, the term "Cause"
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shall mean:
(a) Xxxxxx personally engaging in knowing and intentional illegal
conduct which is seriously injurious to Company or its affiliates;
(b) Xxxxxx being convicted of a felony, or committing an act of
dishonesty or fraud against, or the misappropriation of property belonging to,
Company or its affiliates;
(c) The performance by Xxxxxx of those acts identified in Section
2924 of the California Labor Code;
(d) Xxxxxx knowingly and intentionally breaching any material term
of this Agreement, the Proprietary Information or the Non-Competition Agreement;
(e) Xxxxxx'x commencement of employment with another employer while
he is an employee of Company; or
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(f) any material breach by Xxxxxx of any material provision of this
Agreement, the Proprietary Information Agreement or the Non-Competition
Agreement which continues uncured for 30 days following notice thereof.
10. Miscellaneous.
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(a) Amendments and Waivers. Any term of this Agreement may be
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amended or waived only with the written consent of the parties.
(b) Sole Agreement. This Agreement, including the Exhibits hereto,
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constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement
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shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
(d) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(g) Arbitration. Any dispute or claim arising out of or in
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connection with any provision of this Agreement, will be finally settled by
binding arbitration in Santa Xxxxx County or San Mateo County, California in
accordance with the rules of the American Arbitration Association by one
arbitrator appointed in accordance with said rules. The arbitrator shall apply
California law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This subsection shall not apply to the Proprietary
Information Agreement.
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(h) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING
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THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
(i) Surviving Terms. Sections 6, 9 and 10 of this Agreement shall
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survive the termination of this Agreement for any reason or no reason. The
Proprietary Information Agreement and Non-Competition Agreement shall survive
the termination of this Agreement.
[Signature Page Follows]
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The parties have executed this Agreement on the respective dates set forth
below.
XXXXXXXXXXXXX.XXX
By: /s/ Xxxxx Xxxxxxxx
___________________________________
Name:______________________________
Title:_____________________________
Address: 0000 Xxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
Date:_________________________________
/s/ Xxxxxx Xxxxxx
______________________________________
Xxxxxx Xxxxxx
Address:______________________________
Date:_________________________________
SIGNATURE PAGE TO XXXXXXXXXXXXX.XXX EMPLOYMENT AGREEMENT
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EXHIBIT A
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PERMITTED ACTIVITIES
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1. Member of Board of Directors of Acuson - paid monthly stipend
2. Member of Board of Directors of Quadramed - stock options
3. Consultant to Xxxxxx Health and its affiliates
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EXHIBIT B
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CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
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AMENDMENT OF EMPLOYMENT AGREEMENT
This Amendment of Employment Agreement (the "Amendment") is made this ___
day of June, 2000 by and between Xxxxxx Xxxxxx ("Xxxxxx") and XxxxxxXxxxxxx.xxx,
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a Delaware corporation ("HealthCentral").
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WHEREAS Xxxxxx and HealthCentral entered into an Employment Agreement
effective August 16, 1999 attached as Exhibit A (the "Employment Agreement") and
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a Change of Control Agreement effective May 20, 1999 attached as Exhibit B (the
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"Change of Control Agreement"), and the parties wish to amend the Employment
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Agreement and make certain clarifications to the Change of Control Agreement.
The parties agree as follows:
1. Amendment of Employment Agreement. Section 8 of the Employment Agreement
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is hereby amended in its entirety to read as follows:
"8. Severance. If Xxxxxx'x employment is terminated by the Company or its
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successor for any reason other than Cause (as defined below), as determined by
the Company's Board of Directors,
(a) Xxxxxx will be entitled to receive (i) continued payment of his
monthly base salary on a monthly basis, for twelve months after his
termination by the Company (the "Severance Period"), subject to proration
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for any remaining partial month, plus (ii) a monthly payment equal to the
quotient of: (A) the total amount of bonus paid to Xxxxxx by HealthCentral
during the shorter of: (1) the period from August 12, 1998 through the date
of termination or (2) the thirty six month period prior to the termination
date (eg if the termination date was November 27, 2001, the thirty six
month period would be the period from November 27, 1998 through November
26, 2001), divided by (A) in the case of (1), the number of months in the
period from August 12, 1998 through the date of termination, subject to
proration for any partial month included therein, or (B) in the case of
(2), thirty six (such payments described in (i) and (ii) are collectively
the "Severance"), provided however that, notwithstanding the above,
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(i) if Xxxxxx begins rendering services as an employee or
consultant in excess of twenty (20) hours per week to any person or entity
during the Severance Period, then the monthly Severance payment shall be
reduced by the amount of Xxxxxx'x new monthly base salary or consultancy
fee, and target bonus (prorated monthly), if any,
(ii) if Xxxxxx begins rendering services as an employee or
consultant to (A) a pharmacy or retail drugstore business (including but
not limited to a business involved in the provision of prescription, over-
the-counter and health and beauty products) that operates interactively
over the Internet, or (B) a business that provides health information and
products to the general public (including linkages between
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consumers and health providers, payors and ancillary entities) in various
communications media, including but not limited to internet, interactive
television, interactive cable and satellite, then the Company will cease
making Severance payments at that time,
(iii) if Xxxxxx fails to comply with all the terms of the
Proprietary Information Agreement, the Non-Competition Agreement and the
surviving terms of this Agreement, the Company will cease making Severance
payments at that time, and
(iv) if Xxxxxx'x termination is in connection with a Change of
Control of HealthCentral (as defined in the Change of Control Agreement)
and if Xxxxxx is requested by HealthCentral or the acquiring entity to aid
in the transition of such Change of Control, then, as a condition to the
receipt of any Severance payments, Xxxxxx shall provide such transition
services as may be reasonably requested by HealthCentral and/or the
acquiring entity for a period of up to six months after a Change of
Control.
(b) the Company will pay Xxxxxx'x COBRA payments during the Severance
Period if Xxxxxx elects to continue Xxxxxx'x health insurance benefits under
COBRA with the same coverage provided to Xxxxxx and Xxxxxx'x dependents prior to
the termination (e.g. medical, dental, optical, mental health) and in all other
respects significantly comparable to those in place immediately prior to the
termination."
2. Clarification of Change of Control Agreement. The parties hereby wish to
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clarify the following provisions of the Change of Control Agreement.
(a) Applies to options granted and shares issued prior to June 1, 2000.
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The Change of Control Agreement and the September 1999 Board Resolutions (as
defined below) apply only to options granted and shares issued to Xxxxxx prior
to June 1, 2000. If Xxxxxx is granted any additional options or receives any
direct issuance of shares after June 1, 2000, those shares and/or options, if
any, shall not be subject to any acceleration in connection with a Change of
Control.
(b) Interpretation of Involuntary Termination. To clarify the definition
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of Involuntary Termination contained in Section 5(d)(i) of the Change of Control
Agreement, the parties hereby agree that if, as a result of a Change of Control,
Xxxxxx becomes the senior executive of the ehealth business unit that includes
the majority of the Company's existing business lines, such change in duties
shall not constitute a "significant reduction of duties, authority or
responsibilities" that would constitute an Involuntary Termination under the
Change of Control Agreement.
(c) September 23, 1999 Board Resolutions. The parties hereby agree that if
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Xxxxxx would receive more favorable acceleration of vesting of his options and
shares in connection with a Change of Control pursuant to certain resolutions
adopted by the Board of Directors of HealthCentral at a meeting dated September
23, 1999, attached hereto as Exhibit C (the "September 1999 Board Resolutions")
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rather than the Change of Control Agreement, then the
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acceleration of vesting of Xxxxxx'x stock and options shall be governed by the
September 1999 Board Resolutions and not the Change of Control Agreement.
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As amended hereby, the Employment Agreement shall continue in full force
and effect. The parties have executed this Amendment with an effective date as
above written.
XXXXXXXXXXXXX.XXX
By: /s/ Xxxxx Xxxxxxx
______________________________
Name:_______________________
Title: Director
____________________
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
______________________________
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