Exhibit 10.14
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (Agreement) entered into as of the 1st day of
June, 1999 by and between Member-Link Systems, Inc., a corporation organized and
existing under the laws of the State of New York (Company), and Xxxx X.
Xxxxxxxxxxx, an individual residing in the Commonwealth of Virginia (Employee).
Recitals
The Company wishes to employ the Employee, and the Employee wishes to
be employed by the Company, on the terms and conditions set forth herein.
The parties therefore agree as follows:
1. Services.
1.1 Duties. The Company hereby employs the Employee as its
President and Executive Officer, with overall responsibility for the business
and operations of the Company. Subject to the direction and authorization of the
Company's board of directors, the Employee shall perform such functions and
undertake all responsibilities associated with such position(s).
1.2 Extent of Services. The Employee shall devote his full time and
best efforts to the business and affairs of the Company and to the promotion of
its interests.
1.3 No Conflict. The Employee represents that his or her employment
hereunder and compliance with the terms and conditions of this Agreement will
not conflict with or result in the breach of any agreement to which he or she is
a party or may be bound.
2. Term.
The term of this Agreement shall commence on the date hereof and end on
May 31, 2002, unless sooner terminated as provide in this Agreement.
3. Compensation.
3.1 Base Compensation; Bonus. As compensation for the services to
be rendered by the Employee hereunder, the Company shall pay the Employee a
salary at the rate of $175,000 per calendar year in accordance with the
Company's normal payroll practices; provided, however, that at the discretion of
the Company's board of directors, payment of all or any portion of such salary
may from time to time be deferred if the Company does not have sufficient
cash/capital to pay it when due in the normal course. Any amount(s) so deferred
will cumulate and be payable at such time(s) when the Company has sufficient
cash/capital, in the discretion of the Company's board of directors. The Company
will review the Employee's compensation from time to time during the term of
this Agreement and, at the discretion of the Company's board of directors, may
increase [or decrease] the
Employee's base compensation based upon his or her performance, the financial
condition of the Company, and other relevant factors. In addition, the Company
may pay to the Employee such cash bonus(es), if any, as may be determined by the
board of directors of the Company from time to time.
3.2 Equity Compensation. The Employee will be eligible to
participate in any stock option plan covering management employees of the
Company that may be adopted and effective during the term of this Agreement.
4. Expenses.
The Employee is authorized to incur reasonable expenses for promoting
the business of the Company, including expenses for meals, travel,
entertainment, and similar items. The Company shall reimburse the Employee for
reasonable out-of-pocket expenses incurred by the Employee in performing
services pursuant to this Agreement promptly after receipt of a written
statement from the Employee which itemizes such expenses in reasonable detail,
together with a receipt for any individual expense in excess of $50. In no event
shall the Employee incur any individual expense in excess of $200, or any group
of related expenses in excess of $500, without the prior approval of the
president or chief financial officer of the Company. Use by the Employee of his
or her personal vehicle for the business of the Company shall be reimbursed at
the maximum rate per mile allowed by the Internal Revenue Service from time to
time.
5. Benefits.
5.1. Benefit Plans. The Employee shall be entitled to participate
in, and receive benefits from, any insurance, medical, disability, or other
employee benefit plan of the Company, if any, which may be in effect at any time
during the term of this Agreement and which shall be generally available to the
Employee on terms no less favorable than to other management employees of the
Company.
5.2. Vacation. The Employee shall be entitled during each calendar
year during the term of this Agreement to a vacation of two weeks, with pay, at
times reasonably agreeable to both the Company and the Employee. Unused vacation
time, if any, shall not cumulate from year to year.
6. Employee's Nondisclosure.
(a) The Employee expressly agrees that, without the prior approval of
the board of directors of the Company, he or she shall not, at any time during
the term of this Agreement or after its termination, on his or her own behalf or
as a partner, officer, director, trustee, employee, agent, or member of any
person, firm, corporation, or other entity, use or disclose to any person, firm,
corporation, or other entity, or otherwise employ his or her knowledge of the
products and business of, or any trade secrets or other confidential information
as to the operations, products, or customers of, the Company, unless (i)
necessary to the performance of this Agreement and in furtherance of the
Company's best interest or (ii) already in the public domain or generally known
in the industry.
(b) All documents, records, or similar items, whether in writing or in
electronic or digitized form, relating to the business of the Company shall
remain the exclusive property of the
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Company and shall not be removed from the premises of the Company without its
prior written approval.
(c) The provisions of this Section 6 shall survive the termination of
this Agreement.
7. Inventions.
(a) If at any time or times during the term of this Agreement,
(i) the Employee shall (either alone or with others) make,
conceive, discover, reduce to practice or become possessed of any
invention, modification, discovery, design, development, improvement,
process, formula, data, technique, know-how, secret, or intellectual
property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright or similar statutes or
subject to analogous protection) that relates directly to medical
information systems, software or databases, or results from tasks
assigned to the Employee by the Company (herein called "Inventions"),
and
(ii) (A) in connection therewith, the Employee used equipment,
supplies, facilities or trade secret information of the Company, or (B)
in connection therewith, used hours for which he was to be or was
compensated by the Company hereunder, or (C) which relate at the time
of conception or reduction to practice thereof the business of the
Company or to its actual or demonstrably anticipated research and
development, or (D) which result from any work performed by him for the
Company,
such Inventions and the benefits thereof shall immediately become the sole and
absolute property of the Company and its assigns, and the Employee shall
promptly disclose assign to the Company (or any persons designated by it) each
such Invention and benefits or rights resulting therefrom to the Company and its
assigns without compensation and shall communicate, without cost or delay, and
without publishing the same, all available information relating thereto (with
all necessary plans, models, software code or interface designs) to the Company.
(b) The Employee will also promptly disclose to the Company, and the
Company hereby agrees to receive all such disclosures in confidence, any other
invention, modification, discovery, design, development, improvement, process,
formula, data, technique, know-how, secret or intellectual property right
whatsoever or any interest therein directly in and limited to the fields of
medical information systems, software or databases (whether or not patentable or
registrable under copyright or similar statutes or subject to analogous
protection) made, conceived, discovered, reduced to practice or possessed by the
Employee (either alone or with others) at any time or times during the term of
this Agreement for the purpose of determining whether they constitute
"Inventions" as defined herein.
(c) Upon disclosure of each Invention to the Company, during the term
of this Agreement and at any time thereafter, the Employee will, at the request
and cost of the Company, sign, execute, make and do all such deeds, documents,
acts and things as the Company and its duly authorized agents may reasonably
require:
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(i) to apply for, obtain and vest in the name of the Company alone
(unless the Company otherwise directs) patents, copyrights or other
similar protection in any country throughout the world and when so
obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or other
analogous protection.
In the event the Company is unable, after reasonable effort, to secure
the Employee's signature on any patents, copyright, or other protection relating
to an Invention, whether because of the Employee's physical or mental incapacity
or for any other reason whatsoever, the Employee hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents as the
Employee's agent and attorney-in-fact, to act for and in the Employee's behalf
and stead to execute and file any such application or applications and to do all
other lawfully permitted acts to further the prosecution and issuance of
patents, copyright or other protection thereon with the same legal force and
effect as if executed by the Employee.
(d) The Employee will keep and maintain adequate and current records of
all such Inventions and all items that fall within the scope of paragraph (b)
above, in the form of memoranda, notes, sketches, drawings, reports, computer
code, or computer software relating thereto, which records shall be and remain
the property of and available to the Company at all times. Upon termination of
this Agreement, all records of Inventions and such other items in the form of
memoranda, notes, sketches, drawings, reports, computer programs, computer
software, technology and applications thereof, or the like, including all copies
thereof, then in the Employee's possession, whether prepared by the Employee or
others, will be left with the Company.
(e) The Employee represents that the inventions identified in the
pages, if any, attached hereto comprise all the unpatented inventions or
developments which the Employee has made or conceived prior to the date of this
Agreement, which inventions are excluded from this Agreement. The Employee
understands that it is necessary to list only the title of such invention
itself. IF THERE ARE NO SUCH UNPATENTED INVENTIONS TO BE EXCLUDED, THE EMPLOYEE
SHOULD INITIAL HERE.
8. Covenant Not to Compete.
During the term of this Agreement and for a period of 12 months
following its termination (unless this Agreement is terminated by the Employee
pursuant to Section 10.6), the Employee shall not, without the prior written
approval of the Company, directly or indirectly
(a) carry on or participate in as owner, employee, agent, or otherwise
any business in competition with that conducted or engaged in by the Company;
(b) solicit, for the Employee's own account or for the account of
others, orders for products or services of a kind similar to those provided by
the Company during the term of this Agreement from any party which was a client
or customer of the Company or which the Company
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was actively soliciting to be a customer or client during the 90-day period
preceding the date of termination of this Agreement; or
(c) urge any customer or client or potential customer or client of the
Company to discontinue business, in whole or in part, or not to do business,
with the Company.
9. Remedies.
9.1. Injunctive Relief. A violation by the Employee of the
provisions of Sections 6, 7, or 8 could cause irreparable injury to the Company,
for which there may be no adequate remedy at law. In the event of a breach or
threatened breach by the Employee of any such provision(s), the Company shall
have the right, in addition to any other remedies available to it at law or in
equity, to enjoin the Employee in a court of equity from violating any such
provision(s).
9.2. No Mitigation. If this Agreement is terminated by the Employee
pursuant to Section 10.6, the Employee shall not be required to mitigate damages
otherwise obtainable from the Company as a result thereof, and any income
received by the Employee after such termination shall not reduce the amount of
damages otherwise obtainable from the Company hereunder.
10. Termination.
This Agreement shall terminate prior to the expiration of the term set
forth in Section 2 upon the occurrence of any one of the following events.
10.1. Disability. If the Employee is unable substantially to
perform his or her duties under this Agreement by reason of physical or mental
illness, injury, or incapacity for 120 consecutive days, the Company may
terminate this Agreement and thereupon shall have no further liability or
obligation to the Employee for compensation hereunder except as may be
prescribed under the terms of any benefit plans or arrangements referred to in
Section 5. 1. In the event of a dispute under this Section 10. 1, the Employee
agrees to submit to a physical or mental examination by a licensed physician
selected by the Company, whose decision as to the Employee's disability shall be
conclusive and binding upon the Company and the Employee. The Company shall bear
the cost of such examination.
10.2. Death. This Agreement shall terminate upon the death of the
Employee and thereafter the Company shall have no further liability or
obligation to the Employee for compensation hereunder except as may be
prescribed under the terms of any benefit plans or arrangements referred to in
Section 5. 1.
10.3. Cause. The Company may terminate this Agreement without
further liability or obligation to the Employee if the Employee (i) has refused,
failed, or neglected to perform duties or render services hereunder or has
performed or rendered them incompetently; (ii) has engaged in illegal or other
wrongful conduct substantially detrimental to the business or reputation of the
Company; (iii) has developed or pursued interests substantially adverse to the
Company; (iv) is convicted of a crime which constitutes a felony; or (v) has
otherwise materially breached this Agreement.
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10.4. Cessation of Business. The Company may terminate this
Agreement upon at least 60 days notice to the Employee if the Company in good
faith decides to terminate its business and liquidate its assets, and thereafter
the Company shall have no further liability or obligation to the Employee for
compensation hereunder except as may be prescribed under the terms of any
benefit plans or arrangements referred to in Section 5.1.
10.5. Change in Control. The Company may terminate this Agreement
upon at least 60 days notice to the Employee of any of the following events, and
thereafter the Company shall have no further liability or obligation to the
Employee for compensation hereunder:
(i) the merger or consolidation of the Company in a
transaction in which the shareholders of the Company
receive less than 50 percent of the outstanding voting
shares of the successor corporation, and the surviving
corporation agrees in a writing satisfactory to
Employee to pay Employee, for a period of 12 months
after the transaction, Employee's full base salary at
the annual rate in effect immediately before the
effective date of the transaction, such payments to be
made not less often than monthly, and to continue to
make available to Employee during such 12-month period
the benefits to which Employee was entitled pursuant to
Section 5.1, as of the effective date;
(ii) the sale, exchange, or other disposition, in one
transaction, of at least two- thirds of the outstanding
shares of the voting stock of the Company, and the
acquiror agrees in a writing satisfactory to Employee
to pay Employee, for a period of 12 months after the
transaction, Employee's full base salary at the annual
rate in effect immediately before the effective date of
the transaction, such payments to be made not less
often than monthly, and to continue to make available
to Employee during such 12-month period the benefits to
which Employee was entitled pursuant to Section 5.1 as
of the effective date; or
(iii) the sale of all or substantially all of the assets of
the Company to a single purchaser or a group of
associated purchasers, and the purchaser(s) agree(s) in
a writing satisfactory to Employee to pay Employee, for
a period of 12 months after the transaction, Employee's
full base salary at the annual rate in effect
immediately before the effective date of the
transaction, such payments to be made not less often
than monthly, and to continue to make available to
Employee during such 12-month period the benefits to
which Employee was entitled pursuant to Section 5.1 as
of the effective date.
The Employee will be entitled to exercise any outstanding stock options in
accordance with the terms of any applicable stock option plan.
10.6. Breach by Company. The Employee may terminate this Agreement
upon at least 30 days notice to the Company of a material breach by the Company
of Sections 3, 4, or 5 of this Agreement. The Employee's exercise of this right
to terminate shall not abrogate the Employee's rights or remedies in respect of
the breach giving rise to such termination.
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10.7. Voluntary Termination by Employee. The Employee may terminate
this Agreement at any time upon at least 60 days notice to the Company, after
which termination the Company shall have no further liability or obligation to
the Employee for compensation hereunder except as may be prescribed under the
terms of any benefit plans or arrangements referred to in Section 5.1.
11. Notice.
Any notice required or permitted to be given to a party pursuant to the
provisions of this Agreement shall be in writing and shall be deemed to have
been given on the date of receipt if delivered by messenger to, or if mailed to
such party by registered or certified mail, postage prepaid, at, the address for
such party set forth below (or to such other address or party as such party
shall designate in writing to the other party from time to time):
If to the Company:
Member-Link Systems, Inc.
Attention: General Counsel
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to the Employee:
Xxxx X. Xxxxxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
12. Modification and Waiver.
(a) No waiver or modification of this Agreement or of any covenant,
condition, or limitation herein contained shall be valid or effective unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding or litigation between the parties arising out of or affecting this
Agreement, or the rights or obligations of the parties hereunder, unless such
waiver or modification is in writing, duly executed as aforesaid.
(b) The parties further agree that the provisions of paragraph (a)
above may not be waived except as herein set forth. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver of any breach of condition of this Agreement shall
be deemed to be a waiver of any other subsequent breach of condition, whether of
like or different nature.
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13. Severability.
If any clause, paragraph, or section of this Agreement be held invalid
or unenforceable, the remaining provisions of this Agreement shall not be
affected thereby and shall be valid and remain enforceable to the extent
permitted by law. Moreover, if any one or more of the provisions in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity, or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with then
applicable law.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to principles of
conflicts of law.
15. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, and understandings, whether oral or
in writing, of the parties. No supplement, modification, or amendment of this
Agreement shall be binding upon the parties hereto unless executed in writing in
accordance with Section 12.
16. Headings.
The headings in this Agreement are inserted for convenience of
reference only and shall not be deemed to constitute a part or affect the
meaning of any provision hereof.
17. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to constitute an original but all of which together will
constitute one and the same instrument.
18. Successors and Assigns.
(a) The Employee may not assign any rights or obligations under this
Agreement without the prior written consent of the Company. This Agreement shall
be binding upon and inure to the benefit of the Employee and his or her heirs,
guardians, executors, administrators, and permitted successors and assigns.
(b) Except as otherwise provided in Section 10.5, the Company will
require any successor or assigns (by merger, consolidation, purchase or
otherwise) to all or substantially all of its business and/or assets, prior to
consummation of any transaction therewith and by agreement in form and substance
satisfactory to Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such
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succession or assignment had taken place. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns.
(c) This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement,
except as provided in this Section 18.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY
MEMBER-LINK SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx, Vice President -
Marketing, Sales and Operations
EMPLOYEE
/s/ Xxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxx
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