EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 29th
day of October, 1996, by and between PROXYMED, INC. ("Company") and XXXXXXX
XXXXXXXXX, residing at 0000 Xxxxx Xxxxxx Xx. Xxxxxx, Xxxxxxxx 00000,
("Employee").
WHEREAS, upon the terms and subject to the conditions of this Agreement,
the Company desires to employ the Employee and the Employee is willing to accept
employment by the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth hereinafter and other good and valuable considerations, the receipt
and sufficiency of which is hereby acknowledged, the Company and the Employee
agree as follows:
1. TERM.The term of this Agreement shall commence on November 11, l996 (the
"Effective Date") and shall continue until November 10, l999 (hereafter the
"Term), and shall be automatically extended from year to year thereafter unless
i) terminated by the Company by delivery of not less than ninety (90) days
written notice to Executive prior to the end of the initial Term or any
extension thereof, in which case the employment of Executive shall terminate on
the date specified for termination in such notice, or ii) terminated by
Executive by delivery of not less than ninety (90) days written notice to the
Company, in which case the employment of Executive shall terminate on the date
which is ninety (90) days following the date notice is received by the Company.
2. POSITION; DUTIES; LOYALTY.
a) POSITION. Employee will be employed as Executive Vice President-Network
Division by the Company and shall render exclusive service to the Company as an
employee pursuant to the terms, provisions and conditions hereinafter set forth.
b) DUTIES. Employee shall be employed by the Company on a full-time
exclusive basis. Employee shall perform the duties and have the authority and
responsibilities customarily accompanying responsibility for the Company's
Network Service Division, including operations, development, and profit and loss
accountability.
c) LOYALTY. Employee shall devote the full time required for his position
and shall give his best efforts to the business of the Company and to the
performance of the duties and obligations described in this Agreement. Employee
shall not, directly or indirectly, alone, or as a partner, officer, director or
shareholder of any other institution, be engaged in any other commercial
activities whatsoever, or continue or assume any other corporate affiliations
without the prior written consent of the Company, which consent shall not be
unreasonably withheld, except for (a) passive investments, and (b) minimal time
utilized for business activities that do not compete with the business of the
Company or its subsidiaries.
3. COMPENSATION AND EXPENSES.
a) SALARY. In consideration for the services rendered by the Employee
under this Agreement, the Company shall pay the Employee a monthly base salary
of $8,750 (the "Base Salary") in accordance with the Company's customary payroll
practices, plus a $500 per month car allowance, subject to federal and state
taxes, if any. It is anticipated that the Network Division shall be significant
source of revenues and income within the next year and by then Employee will
have been promoted to the office of Chief Operating Officer by his first
anniversary. In such event, the Base Salary shall be increased to $10,416.67 per
month. Employee performance reviews (with or without a wage increase) will be
conducted annually.
b) BONUS. Employee shall receive a one time bonus of $25,000 guaranteed
and payable on the first anniversary of employment. In addition, Employee may
qualify to earn a Performance Bonus each calendar year of the Term of the
Agreement equal to 5% of the net pretax operating income of the Network Division
of the Company up to a maximum of $100,000 each calendar year. "Net pretax
operating income" of the Network Division shall be defined as follows: Net sales
less cost of sales and less direct and indirect operating costs pertaining to
the Network Division ( but excluding administrative payroll costs of the CEO,
President, CFO, CLO and their administrative staffs; accounting department
salaries; legal and accounting expenses; investor, public relations and
stockholder expenses; goodwill amortization, and director and officer liability
insurance premiums. It also does not include i) income or losses from
acquisitions resulting from an acquisition, but subsequent incremental income
and improvements to losses will be included, or ii) income from hardware sales.
Performance Bonuses for any calendar year, if any, shall be paid within 3
business days after the Company's independent auditors have certified the
Company's financial statements for the relevant calendar year and the Chief
Financial Officer has certified the pretax net income of the Network Division.
c) ADDITIONAL COMPENSATION. As a further incentive and inducement to the
Executive to accept employment by the Company and to devote his best efforts to
the business and affairs of the Company, the Employee shall be entitled to such
bonuses that may be awarded from time to time by the Compensation Committee or
the Board of Directors of the Company, and to participate in any stock option or
bonus plans which the Company may now have or in the future develop
d) RELOCATION. The Company shall pay Employee all reasonable, necessary
and actual costs for Employee's relocation, including actual moving expenses,
travel expenses for Employee and Employee's spouse to look for housing, rental
expenses in Florida until Employee's relocation, broker's commissions on the
sale of Employee's house, closing costs, including attorneys fees and points and
associated costs, as well as grossing up any such expenses taxable to Employee.
However, Employee agrees that in no event shall Company be obligated to pay
Employee for all such relocation costs, including any gross up, more than
$50,000.
e) OPTIONS. Employee will receive a stock-option agreement for a five
(5) year term to purchase up to 60,000 shares of the Company's common stock at
its fair market value defined as mean of the high and low prices at which common
stock is reported to have traded on the NASDAQ System at the close of business
on the Effective Date of this Agreement. The options will vest over a three year
period as follows: 12,000 on the first anniversary of Employee's employment,
24,000 on the second anniversary of Employee's employment, and 24,000 on the day
before the third anniversary of Employee's employment. The option will be as
granted as a non-qualified option in accordance with a new stock option plan
which the Company will exercise best efforts to extend the term to ten (10)
years and to have it effective by December 31, l996, and will contain a "change
of control " provision similar to the 1995 Stock Option Plan which provides that
upon a "change of control", as defined therein, any unvested options shall
immediately vest as provided for in such plan.
f) EXPENSES. Company shall promptly pay or reimburse the Employee for all
reasonable business expenses actually incurred or paid by the Employee in the
performance of his services hereunder in accordance with the policies and
procedures of the Company for the reimbursement of business expenses for its
senior level executives, provided that the Executive
2
properly accounts therefor in accordance with the Company's policy. In addition,
the Company shall reimburse Employee for reasonable and actual expenses relating
to travel, hotel and related costs traveling to and from his residence to Ft.
Lauderdale for the first three months of employment, subject to approval of
Employee's expense reports. Further, if the Company's principal office is
relocated in the future more than 50 miles from Ft. Lauderdale, Company shall
reimburse Employee's relocation expenses in the same manner as Section 3.d)
above.
g) TAX WITHHOLDING. The Company shall have the right to deduct or withhold
from the compensation due Employee hereunder any and all sums required for
Federal income and social security taxes and all state or local taxes now
applicable or that may be enacted and become applicable in the future.
4. BENEFITS.
a) VACATION. Employee shall be entitled to three weeks of vacation with
pay in the first year of his employment, and thereafter. Vacation not taken
during a calendar year does not accrue unless approved in writing by the
Company. Employee shall not be entitled to receive any additional compensation
from the Company on account of his failure to take a vacation.
b) PARTICIPATION IN BENEFIT PLANS. Employee shall be entitled to
participate in whatever benefit plans, including health insurance, that are
extended to all executives of the Company, on the same terms that such benefits
are so extended. Employee shall be entitled to family health insurance coverage
beginning 90 days from the commencement of employment from the Company's
insurance carrier (currently Humana HMO). If Employee elects the Humana PPO
option, any additional premium will be payable by Employee. The Company agrees
to reimburse Employee for actual expenses of COBRA coverage from Employee's
prior employer for the first ninety (90) days of employment, but not to exceed
the cost of the Company's HMO coverage. The Company shall not be obligated to
maintain any special or additional plans for Employee's benefit. Employee shall
also be entitled to participate in benefit plans extended to other executives of
the Company.
5. TERMINATION.
a) TERMINATION WITHOUT CAUSE; DEATH; DISABILITY. In the event of
Employee's Disability (as defined herein), this Agreement may be terminated at
the election of the Company. Upon termination for death or Disability, Employee
or his/her beneficiary or estate or legal representative shall be entitled to
receive the amounts payable under Section 5 (c). For purposes of this Agreement,
"Disability" is defined to mean the inability of Employee due to illness or
physical or mental infirmity (as determined by a physician selected by Employee
and acceptable to the Company) to perform his duties hereunder on a full-time
basis for six consecutive months with reasonable accommodation by the Company.
Employee shall, upon request of the Company, furnish information and assistance
to the Company, and, in addition, upon reasonable request of the Company's Board
of Directors or its designees, shall make himself available to undertake
reasonable assignments consistent with the dignity, importance and scope of his
position and his physical and mental health.
b) TERMINATION FOR CAUSE. The Company may terminate Employee's employment
hereunder for "cause", effective immediately upon giving written notice thereof.
For purposes of this Agreement, the term "cause" shall be limited to (i)
conviction of a felony or of any crime involving fraud or misrepresentation;
(ii) the continued failure by Employee to substantially perform his duties to
the Company after receipt of written notice from the Company specifying any
action or inaction by Employee which is deemed by the Company to constitute a
failure to
3
perform his duties hereunder with suggestions, where feasible, as to how
Employee may remedy such failure, and Employee has failed to correct the
unsatisfactory performance within thirty (30) days of such notice; (iii)
Employee's gross negligence or willful misconduct which is materially injurious
to the Company, monetarily or otherwise; (iv) proven dishonesty affecting the
Company; (v) excessive use of alcohol or illegal drugs interfering with the
performance of Employee's duties and the continuance thereof after written
warning; (vi) any material breach by Employee of the Company's policies or of
the covenants contained in Section 6 of this Agreement regarding
confidentiality. For purposes of the paragraph, no act or failure to act on
Employee's part shall be considered "wilful" unless done, or omitted to be done,
by Employee not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. If at any time the Company
shall determine that Employee has engaged in one or more activities constituting
"cause" for termination hereunder, Employee's employment shall be terminated for
cause. Company shall pay Employee his full Base Salary through the date of
termination at the then current rate (including any applicable bonus and accrued
vacation pay), and all stock options, if any, which have become vested and
exercisable on or before the date of termination, with such options remaining
exercisable for such period of time specified as in Employee's Option
Agreement(s). Company shall then have no further obligations to Employee.
Employee may give a written request to the Company within thirty (30) days after
such termination requesting an opportunity to be heard by the Board of Directors
of the Company. If Employee timely so requests such an opportunity to be heard,
such opportunity shall be made available to Employee within 30 days after such
written request. If the Board, with the advice of counsel, determines that there
was cause for termination, its determination shall be deemed to be conclusive
and final. In the event Employee is terminated for cause, Section 6.a) and 6.b)
will be of no force or effect. If it determines in its reasonable judgment that
there was not sufficient basis to terminate Employee for cause, Employee shall
be reinstated with all back pay and benefits restored.
c) PAYMENT UPON TERMINATION WITHOUT CAUSE. In the event of termination
without cause, Employee shall be given ninety (90) days prior written notice.
Employee shall execute a full and complete release of any and all claims against
the Company in a form satisfactory to the Company, in which event Employee (or
his estate) shall be entitled to severance pay of (i) an amount equal to
Employee's Base Salary on the date of termination for 6 months commencing on the
date of termination payable in accordance with the Company's customary payroll
practices (or if such termination occurs before April 30, l998, then twelve
months Base Salary), plus (ii) a pro rata portion of any bonus compensation
which would have been paid to Employee under any bonus plan which is adopted by
the Company's Compensation Committee or Board of Directors in such year if the
Company and Employee had met the targeted goals to the date of termination, plus
(iii) the continuation of all benefit (including, without limitation, all
insurance plans) for 6 months after termination (or if such termination occurs
before April 30,1998, then for twelve (12) months), plus (iv)any remaining
unvested options shall vest. A termination pursuant to Section 1 above shall not
be deemed to be a termination without cause under this Section or a termination
for Good Reason under section 5.f) or subject to this Section 5.c).
d) ACCELERATION. If the Company defaults in the payment of any amounts
owed hereunder to Employee following written notice by Employee and fails to
cure such default within ten days from the date of such notice, Employee shall
be entitled to accelerate the entire amount due hereunder. The Company shall
have the opportunity to cure a monetary default one time after which time, if
another default occurs, Employee shall be entitled to accelerate the
4
entire amount due hereunder upon written notice by Employee without affording
the Company an opportunity to cure.
e) RETURN OF COMPANY PROPERTY. Upon notice of termination by the Company
or resignation by Employee, Employee shall immediately return to the Company all
property of the Company in Employee's possession, including Confidential
Information (as defined below). Employee acknowledges that the Company may
withhold any compensation and benefits owed to Employee hereunder until all such
property is returned.
f) EMPLOYEE TERMINATION FOR GOOD REASON. Employee may terminate this
Agreement for Good Reason by giving Company ninety (90) days prior written
notice. Good Reason means: a) the assignment of any duties inconsistent in any
respect with Employee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities hereunder, or any
other action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose as isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of written notice from Employee;
b) any reduction of Employee's Base Salary or the failure by the Company to
provide Employee with an incentive compensation program and health and the
benefits hereunder no less favorable than the benefits Employee was entitled to
hereunder; and c) if Employee is not appointed Chief Operating Officer by
January 31, l998 or if not given the opportunity before then. In such event,
Employee's termination shall be treated as a termination without cause and he
shall be entitled to the payments enumerated in Section 5.c) above.
g) MITIGATION If Employee becomes entitled to compensation pursuant to
Section 5. c) or 5. f) above, Executive shall use reasonable efforts to seek
other employment; provided, however, that he shall not be required to accept a
position of less importance or dignity or of a substantially different character
than the position held as of the date of termination or a position that could
require Executive to engage in activity in violation of the non-competition
provisions of Section 6 hereof nor shall he be required to accept a position
outside South Florida. The amount of any cash compensation paid or payable from
any such employment shall be reported to the Company on a monthly basis and such
amount shall be credited against amounts otherwise payable by the Company to
Executive under Sections 5.c) or 5.f) above. Other than as provided in this
Section 5.g), Executive shall have no duty to mitigate the amount of any payment
provided for in this Agreement.
6. COVENANTS OF EMPLOYEE.
a) Employee agrees that during the Term and for one year following a
termination of employment for any reason, he will not, directly or indirectly,
engage, assist or participate in, whether as a director, officer, executive,
agent, manager, consultant to vendors/sellers (but may consult to end
users/purchasers), partner, owner or independent contractor or other
participant, in any line of business which is the same as the Company or any of
its subsidiaries are engaged in as of the termination of this Agreement without
the written consent of the Company. Employee and Company agree that this clause
is to protect the interests of the Company while at the same time allowing the
Employee to pursue gainful employment with any other company Employee so
chooses, so long as such Employee does not, within the relevant time period
herein, engage in any line of business that directly competes with any line of
business engaged in by the Company or any of its subsidiaries as of the date
Employee terminates his employment with Company. Nothing contained herein shall
prevent Employee from acquiring less than 1% of any class of securities of any
company that competes with the Company that has any of its securities listed on
a national securities exchange or traded in the over-the-counter market,
provided Employee remains a passive investor.
5
b) Employee agrees that during the Term and for one year after the
termination of employment for any reason, he will not, directly or indirectly,
without the prior written consent of the Company, induce or solicit any person
employed or hereafter employed by the Company or any of its subsidiaries to
leave the employ of the Company or any of its subsidiaries or solicit,
recruit,hire or attempt to solicit, recruit or hire any person employed by the
Company. Further, Employee agrees that for a period of one year after the
termination of this Agreement, he will not, directly or indirectly, without the
prior written consent of the Company, solicit, divert away, take away, or
attempt to take away any customer of the Company who was a customer which
Employee had, alone or in conjunction with others, served, solicited or had
material contacts with during his employment with the Company. Regarding the
latter sentence, Company and Employee agree that Employee may contact and do
business with those customers, however during the relevant time period, he may
not solicit or sell them any product or service in the lines of business that
were the same as then being offered by the Company or any of its subsidiaries as
of the termination of employee's employment.
c) Employee agrees and acknowledges that the Confidential Information of
the Company and its subsidiaries (as hereinafter defined) is valuable, special
and unique to its business, that such business depends on such Confidential
Information, and that the Company wishes to protect such Confidential
Information by keeping it confidential for the use and benefit of the Company.
Based on the foregoing, Employee agrees to undertake the following obligations
with respect to such Confidential Information.
i) Employee agrees to keep any and all Confidential Information
in trust for the use and benefit of the Company.
ii) Employee agrees that, except as required by Employee's duties or
authorized in writing by the Company and its subsidiaries, he will not at any
time during and for a period of 10 years after the termination of his employment
with the Company and its subsidiaries, disclose, directly or indirectly, any
Confidential Information of the Company or any of its subsidiaries. except as
maybe required by applicable law or court order, in which case Employee shall
promptly notify Company so as to allow it to seek a protective order if it so
elects.
iii) Employee agrees to take all reasonable steps necessary, or
reasonably requested by the Company or its subsidiaries, to ensure that all
Confidential Information of the Company is kept confidential for the use and
benefit of the Company and its subsidiaries; and
iv) Employee agrees that, upon termination of his employment by the
Company or any of its subsidiaries or at any other time the Company may in
writing so request, he will promptly deliver to the Company all materials
constituting Confidential Information (including all copies thereof) that are in
the possession of or under the control of Employee. Employee further agrees
that, if requested by the Company to return any Confidential Information
pursuant to this Subsection (iv), he will not make or retain any copy or extract
from such materials.
For the purposes of this Section 6 (c), Confidential Information
means any and all information developed by or for the Company or any of its
subsidiaries of which Employee gained knowledge by reason of his employment by
the Company or any of its subsidiaries prior to the date hereof or during his
employment that is not generally known in any industry in which the Company or
its subsidiaries is or may become engaged, but does not apply to information
which is generally known to the public or the trade, unless such knowledge
results from an unauthorized disclosure by Employee. Confidential Information
includes, but is not limited to, any and all information developed by or for the
Company concerning plans, marketing and
6
sales methods, materials, processes, business forms, procedures, devices used by
the Company, its subsidiaries, suppliers and customers with which the Company
had dealt with prior to Employee's termination of employment with the Company
and its subsidiaries, plans for development of new products, services and
expansion into new areas or markets, internal operations, and any trade secrets,
proprietary information of any type owned by the Company and its subsidiaries,
together with all written, graphic and other materials relating to all or any
part of the same. The Company will receive all materials, including, software
programs, source code, object code, specifications, documents, abstracts, and
summaries developed in connection with Employee's employment. Employee
acknowledges that the programs and documentation developed in connection with
Employee's employment with the Company shall be the exclusive property of the
Company, and that the Company shall retain all right, title and interest in such
materials, including without limitation patent and copyright interests. Nothing
herein shall be construed as a license from the Company to make, use, sell or
copy any inventions, ideas, trade secrets, trademarks, copyrightable works, or
other intellectual property of the Company during the term of this Agreement or
subsequent to its termination.
d) INJUNCTIVE RELIEF.
i) Employee acknowledges and agrees that the covenants and
obligations contained in this Section 6 relate to special, unique and
extraordinary matters and that a violation of any of the terms of this Section
will cause the Company irreparable injury for which adequate remedies at law are
not available. Therefore, Employee agrees that the Company shall be entitled
(without having to post a bond or other surety) to an injunction, restraining
order, or other equitable relief from any court of competent jurisdiction,
restraining the Employee from committing any violation of the covenants and
obligations set forth in this Section 6.
ii) The Company's rights and remedies under this Section are
cumulative and are in addition to any other rights and remedies the Company may
have pursuant to the specific provisions of this Agreement and at law or in
equity.
7. MISCELLANEOUS.
a) ATTORNEY'S FEES. In the event a proceeding is brought to enforce or
interpret any part of this Agreement or the rights or obligations of any party
to this Agreement, the non-prevailing party shall pay the prevailing party's
fees and expenses, including reasonable attorney fees..
b) SUCCESSORS AND ASSIGNS. This Agreement and the benefits hereunder are
personal to the Company and are not assignable or transferable by the Employee
without the written consent of the Company. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Company and the
Employee and the Employee's heirs and legal representatives, and the Company's
successors and assigns.
c) GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the law of the State of Florida, without regard to the application
of principles of conflict of laws.
d) NOTICES. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties to this Agreement addressed to the
Company at its then principal office, as notified to Employee, or to the
Employee at his address specified on page 1 of this Agreement, or to either
party
7
hereto at such other address or addresses as he or it may from time to
time specify for such purposes in a notice similarly given. All notices and
communications shall be deemed to have been received on the date of delivery.
e) MODIFICATION; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is approved
by a duly authorized officer of the Company and is agreed to in a writing signed
by the Employee and such officer. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
f) COMPLETE UNDERSTANDING. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
h) VALIDITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
i) SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and if any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid, this Agreement shall be construed as
if such invalid word or words, phrase or phrases, sentence or sentences, clause
or clauses, or section or sections had not been inserted.
j) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
k) ARBITRATION. Except for disputes relating to Section 7 of this
Agreement, any and all disputes or controversies that shall arise under or in
connection with this Agreement or in any other way related to Employee's
employment by the Company, including termination of employment, shall be
submitted to a panel of three arbitrators under the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect. The parties hereby acknowledge that the Federal Arbitration Act takes
precedence over any state arbitration statutes, rules and regulations. Each of
the arbitrators shall be qualified and experienced in employment related matters
with at least one arbitrator being a licensed attorney. The arbitrators must
base their determination solely on the terms and conditions of this Agreement
and the law in the State of Florida. The arbitrators shall have the authority to
award any remedies that a court may order or grant, except that they will have
no authority to award punitive damages or any other damages not measured by the
prevailing party's actual damages, and may not, in any event, make any ruling,
finding or award that does not conform to the terms and conditions of this
Agreement. Arbitration shall be held either in Broward County or Dade County,
Florida, and the parties hereby agree to accept service of process at the
address above written and in the personal jurisdiction and venue as set out
herein. Both parties expressly covenant and agree to be bound by the decision of
the arbitrators as the final determination of the matter in dispute. Judgment
upon the award rendered by the arbitrators
8
may be entered into any court having jurisdiction thereof. The non-prevailing
party shall pay the prevailing party's fees and costs, including reasonable
attorney fees.
l) INDEMNIFICATION. In accordance with the Company's Articles and Bylaws,
the Company agrees to defend, indemnify and hold harmless the Employee
("Indemnified Party") for acts in his capacity as Employee to the fullest extent
permitted by Florida corporate law at the present time (or as such right of
indemnity may be increased in the future) including in particular and without
limitation with respect to the execution and delivery of this Agreement or
Employee's accepting employment with the Company. The Company agrees to
reimburse the Indemnified Party in advance for any costs of defending any action
or investigation (including reasonable attorneys' fees and expenses) regarding
Employee's performance of his duties under this Agreement, subject to an
undertaking from the Indemnified Party to repay the Company if the Indemnified
Party is determined not to be entitled to such indemnity by a court of competent
jurisdiction; provided that, the Company shall first have the opportunity to
defend Employee so long as counsel hired by the Company does not have a conflict
with representation of both the Company and the Employee and Employee approves
of such counsel. Notwithstanding the foregoing, the Company shall not be
required to advance expenses for the defense of Employee for any causes of
action that relate to activities of Employee that the Company in good faith
determines are outside of the scope of the duties required of Employee under
this Agreement and not related to the execution and delivery of this Agreement
or Employee's accepting employment with the Company, including without
limitation, for causes of action such as sexual harassment, torts, etc.
m) Sections 5a) and c); 6 and 7 shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
COMPANY:
PROXYMED, INC., EMPLOYEE
a Florida corporation
By:
--------------------------------- ------------------------
Xxxxxx Blue, Chairman and C.E.O. Xxxxxxx Xxxxxxxxx
