EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated January 15, 1999, is
made by and between Empower Health Corporation a Texas corporation (the
"Company" or "Employer"), and Xxxxxx Xxxx, an individual residing in Xxxxxx
County, Texas (the "Employee").
PRELIMINARY STATEMENTS
Employer desires to secure the services of Employee, and Employee desires
to be engaged by Employer, in accordance with the terms and conditions herein
set forth.
STATEMENT OF AGREEMENT
NOW, THEREFORE in consideration of the premises and the covenants contained
herein, and for other good, valuable and binding consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I. POSITION
Section 1.1 Position. Employer hereby employs Employee in the position of
Chief Operating Officer.
ARTICLE II. COMPENSATION
Section 2.1 Base Salary. During his employment, Employee shall be paid at
the rate of $140,000 per year, subject to applicable withholding ("Base Pay"),
payable in accordance with Employer's regular payroll practices.
Section 2.2 Stock Options.
(a) Employee shall be granted pursuant to Employer's stock option plan an
option to purchase the greater of 45,000 shares of 1% (of that which is
available on the date of issuance) of Employer's Common Stock. Such option
shall be subject to approval by the Board of Directors and shall be on such
terms as established by the Board of Directors. Any option granted pursuant to
this Agreement shall become fully vested and immediately exercisable upon the
occurrence of any event set forth in Section 4.3(a) or (b) herein.
(b) The exercise price for the option granted pursuant to this Section 2.2
shall be the fair market value of Employer's Common Stock on the date of grant
as established by the Board of Directors in its sole discretion. Employee shall
be required to enter into any stock purchase or related agreement that the Board
of Directors approves as a condition to the issuance of such Common Stock.
Section 2.3 Bonus. In addition to Employee's Base Salary, Employee shall
be entitled to annual bonus compensation (the "Annual Bonus") equal to at least
(i) $140,000 (subject to applicable withholding) commencing on the date of this
agreement and (ii) $105,000
1
(subject to applicable withholding) commencing on the first and second
anniversaries of the date of this agreement. The Annual Bonus shall be parceled
and paid in equal increments throughout the calendar year in addition to Base
Pay and in accordance with Employer's regular payroll practices as applied to
Base Pay.
Section 2.4 Car Allowance. During his employment, Employee will be
entitled to a car allowance of $600 per month, payable in accordance with
Employer's regular payroll practices.
Section 2.5 Benefits. Employee shall be entitled to a total of six weeks
per year paid time-off which may be used at the discretion of Employee and which
shall be in lieu of any paid vacation and sick time. Such time-off shall accrue
monthly. In addition, Employee shall be eligible to participate in the employee
benefit plans and executive compensation programs applicable to other key
executives of the Company, including (without limitation) retirement plans,
savings or profit-sharing plans, stock option, incentive or other bonus plans,
life, disability, health, accident and other insurance programs, and similar
plans or programs, subject, in each case, to the generally applicable terms and
conditions of the applicable plan or program in question and to the
determination of any committee administering such plan or program.
ARTICLE III. DUTIES AND RESPONSIBILITIES
Section 3.1 Duties and Responsibilities. Employee shall properly perform
the duties as may be assigned to his or laid out by Employer as duties or
responsibilities of the Employee. Employee shall devote all of his business time
to the performance of his duties hereunder.
ARTICLE IV. TERM AND TERMINATION
Section 4.1 Term. Subject to the rights of either party to terminate this
Agreement as set forth in Section 4.2 of this Agreement, Employer shall employ
Employee on an exclusive basis. Employee hereby agrees to be employed
exclusively by the company for the term of this Agreement and such employment
shall commence on or before February 17, 1999 and shall continue for a period of
thirty-six months (the "Term"), unless terminated earlier in accordance with
Section 4.2.
Section 4.2 Termination. In the event Employee is discharged or in the
event Employee resigns, then, upon such occurrence, this Agreement shall be
deemed terminated and the Employer shall be released from all obligations to
Employee with respect to this Agreement, including, but not limited to,
compensation to Employee, except obligations accrued prior to such date of
termination or resignation and except as provided in Section 4.3.
Notwithstanding anything to the contrary contained in this Agreement, either
party shall have the right to terminate this Agreement at any time.
Section 4.3 Severance Pay. In the event of termination and in exchange
for entering into a General Release of Claims and Settlement Agreement with the
Company, Employee shall be entitled to compensation equal to the Annual Bonus in
effect as of the date of termination and twelve (12) months of Base Pay and
continuation of any health care insurance for a period of twelve (12) months
(collectively, the "Severance Benefits") in accordance with the following:
2
(a) If this Agreement is terminated by the Company prior to the expiration
of the Term of this Agreement and such termination is not for Cause, Employee
shall be entitled to Severance Benefits, payable in accordance with the
Company's normal and customary policies.
(b) If Employee's employment is terminated by reason of a disability,
Employee shall be entitled to Severance Benefits, payable in accordance with the
Company's normal and customary policies.
(c) If (i) Employee voluntarily terminates his employment, (ii) the Company
terminates this Agreement for Cause, or (iii) if Employee's employment is
terminated by reason of his death, Employee shall not be entitled to receive any
additional salary, bonus or benefits beyond those earned or accrued as of the
effective date of the termination of his employment.
(d) For purposes of this Agreement, "Cause" means (i) Employee's repeated
and intentional disregard for his material duties with respect to the Company
(other than as a result of illness or disability) which continues for thirty
(30) days after a written demand for substantial performance is delivered to
Employee, (ii) the commission by Employee of any act of fraud, theft or criminal
dishonesty with respect to the Company or any of its subsidiaries or affiliates,
or the conviction of Employee of any felony, (iii) the commission of any act
involving moral turpitude which (A) brings the Company or any of its affiliates
into public disrepute or disgrace, or (B) causes material injury to the customer
relations, operations or the business prospects of the Company or any of its
affiliates, and (iv) any material breach by Employee of this Agreement.
(e) If Employee voluntarily terminates his employment within ninety (90)
days after (i) a material reduction in the nature or scope of Employee's
responsibilities, (ii) a material reduction in Employee's compensation or
benefits (other than a reduction that generally effects all Employees entitled
to such benefits) or (iii) a requirement to relocate his principal place of
employment outside a radius of fifty (50) miles from his place of employment
immediately prior to such requirement, then such termination shall be deemed to
be a termination by the Company not for Cause.
ARTICLE V. CONFIDENTIAL INFORMATION
Section 5.1 Disclosure of Confidential Information. Employee acknowledges
that certain information, whether written or oral, concerning the Employer
and/or the Business, including, but not limited to, general business operations
or any other ideas and or items relating to the business of the Employer
(referred to herein as "Confidential Information"), whether prepared or
generated by Employee or the Employer pursuant to this Agreement, or otherwise
coming into the possession or knowledge of Employee, shall remain the exclusive,
confidential property of the Employer except to the extent expressly authorized
in writing by the Employer for dissemination. Employee further acknowledges and
agrees that all such Confidential Information constitutes trade secrets of the
Employer.
During the term of this Agreement and the Restricted Period (as defined in
Section 5.8 hereof) Employee shall not disclose any of such Confidential
Information to any third party without the prior written consent of the
Employer, and shall take all reasonable steps and actions necessary to maintain
the confidentiality of such Confidential Information. Employee shall not
3
use any of such Confidential Information in any manner whatsoever during the
Restricted Period, without the Employer's express prior written consent. In
consideration of the obligations undertaken by the Employer herein, Employee
will not, at any time during or after his employment hereunder, reveal divulge
or make known to any person, any Confidential Information acquired by Employee
during the course of his employment. Without in any manner limiting the
generality of the foregoing obligation, Employee agrees that Employee shall not,
directly or indirectly, undertake or attempt to undertake any of the following
activities:
(a) disclose any Confidential Information to any other person or entity;
(b) use any Confidential Information for Employee's own purposes;
(c) authorize or permit any other person or entity to use, copy, disclose,
publish or distribute any Confidential Information; or
(d) undertake or attempt to undertake any activity the Company is
prohibited from undertaking or attempting to undertake by any of its present or
future clients, customers. suppliers, vendors. consultants, agents or
contractors.
As used in this Agreement, the term "Confidential Information" means any
knowledge, information or property relating to, or used or possessed by, the
Company, and includes, without limitation, the following: trade secrets,
patents, copyrights, software (including, without limitation, all programs,
specifications, applications, routines, subroutines, techniques and ideas for
formulae); concepts, data, drawings, designs and documents; names of clients,
customers, Employees, agents, contractors. and suppliers; marketing information;
financial information and other business records- and all copies of any of the
foregoing, including notes, extracts, memoranda prepared or suffered or directed
to be prepared by Employee based on any Confidential Information. Employee
agrees that all information possessed by him/him, or disclosed to his or to
which Employee obtains access during the course of Employee's employment with
the Company shall be presumed to be Confidential Information under the terms of
this Agreement, and the burden of proving otherwise shall rest with Employee.
Section 5.2 Return of Confidential Information. Upon termination of
Employee's employment with the Company for any reason, Employee agrees not to
retain or remove from the Company's premises any records, files or other
documents or copies thereof or any other Confidential Information whatsoever,
and Employee agrees to surrender same to the Company, wherever it is located,
immediately upon termination of Employee's employment.
Section 5.3 Assignment of Intellectual Property. During the period of
Employee's employment with the Company, all processes, products, methods,
improvements, discoveries, inventions, ideas, creations, trade secrets, know-
how, machines, programs, designs, routines, subroutines, techniques, ideas for
formulae, writings, books and other works of authorship, business concepts,
plans, projections and other similar items as well as all business
opportunities, conceived, designed, devised, developed, perfected or made by the
Employee, whether alone or in conjunction with others, and related in any manner
to the actual or anticipated business of the Company or to actual or anticipated
areas of research and development (collectively, the "Intellectual Property"),
shall be promptly disclosed to and become the property of the Company,
4
and Employee hereby assigns. transfers and conveys the Intellectual Property to
the Company. Employee further agrees to make and provide to the Company any
documents, instruments or other materials necessary or advisable to vest,
secure, evidence or maintain the Company's ownership of the Intellectual
Property, and patents, copyrights, trademarks and foreign and domestic property
rights with respect to the Intellectual Property. The term "Intellectual
Property" shall be given the broadest interpretation possible and shall include
any Intellectual Property conceived, designed, devised, developed, perfected, or
made by the Employee during off-duty hours and away from the Company's premises,
as well as to those conceived, designed, devised, developed, perfected, or made
in the regular course of Employee's performance.
Section 5.4 Non-competition Agreement. Employee acknowledges that the
Company has provided and may provide additional special training (including,
without limitation, training relating to programming, servicing or marketing of
sophisticated computer programs and services related to healthcare and to the
Internet) to Employee to enable Employee to perform Employee's duties as an
employee of the Company. As a result, Employee agrees that, during the
restricted period (as herein defined) (if such termination is with Cause, or
results from Employee's resignation or disability) Employee shall not, in the
United States (the "Geographic Area") (i) directly or indirectly engage in,
consult with, be employed by or be connected with any business or activity with
a third party, in the field of consumer healthcare software products and
services, which directly or indirectly competes with the Company's business (a
"Competing Business"), (ii) solicit any business from any of the Company's
current or former clients, (iii); assist others to open or operate any Competing
Business; or (iv) solicit, recommend or induce employees of the Company to
terminate their employment with the Company.
Section 5.5 Nonsolicitation Agreement. During the Restricted Period,
Employee will not without the express prior written approval of the Board of
Directors of the Company (i) directly or indirectly, in one or a series of
transactions, recruit, solicit or otherwise induce or influence any proprietor,
partner, stockholder, lender, director, officer, employee, sales agent, joint
venturer, investor, lessor, supplier, customer, agent, representative or any
other person which has a business relationship with the Company to discontinue,
reduce or modify such employment, agency or business relationship with the
Company, or (ii) employ or seek to employ or cause any Competing Business to
employ or seek to employ any person or agent who is then (or was at any time
within six (6) months prior to the date the Employee or the Competing Business
employs or seeks to employ such person) employed or retained by the Company.
Notwithstanding the foregoing, nothing herein shall prevent the Employee from
providing a letter of recommendation to an employee with respect to a future
employment opportunity.
Section 5.6 Reasonableness of Covenants. Employee has carefully read this
Article 5 and agrees and acknowledges that the limitations as to time,
geographical area and scope of activity to be restrained are reasonable and do
not impose a greater restraint than is necessary to protect the goodwill and
business interests of the Company. Employee has agreed to the foregoing
covenants because (a) Employee recognizes that the Company has a legitimate
interest in protecting the confidentiality of its business secrets (including
the Confidential Information), (b) Employee agrees that such non-competition
agreement is not oppressive to him nor injurious to the public, (c) the Company
bas provided specialized and valuable training and information to Employee, and
(d) the Company would not have entered into this Agreement without Employee's
agreement the covenants set forth in this Article 5. Employee further
understands
5
and agrees that, if at some later date, a court of competent jurisdiction
determines the scope, duration or geographic area of any covenant set forth in
this Article 5 to be over broad or unenforceable for any reason. these covenants
shall be reformed by the court, pursuant to Tex. Bus. & Co. Code Am. Section
15.50(2) (or any successor provision) and enforced to the maximum extent
permissible under Texas law.
Section 5.7 Remedies. If Employee breaches the agreement set forth in
Article 5 of this Agreement, the Employer will be entitled to the following
remedies:
(a) damages from Employee; and
(b) in addition to its right to damages and any other rights the Employer
may have, Employer shall be entitled to obtain injunctive or other equitable
relief to restrain any breach or threatened breach or otherwise to specifically
enforce the provisions of Article 5 of this Agreement, it being agreed that
money damages alone may be inadequate to compensate the Employer and would be an
inadequate remedy for such breach.
Section 5.8 Restricted Period. The term "Restricted Period" as used in
this Agreement, shall mean the period of Employee's actual employment hereunder,
plus one year after the date Employee is actually no longer employed by the
Employer as a consequence of the expiration or termination of this Agreement,
Employee's resignation, or termination for any reason.
ARTICLE VI. MISCELLANEOUS
Section 6.1 Entire Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement between the parties with respect to the
subject matter herein set forth, and supersedes all prior agreements by and
between the parties.
Section 6.2 Amendments. This Agreement may not be amended, altered or
terminated except in writing.
Section 6.3 Invalidity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not invalidate, make
unenforceable or otherwise effect any other provision of this Agreement, which
shall remain in full force and effect.
Section 6.4 Further Assurances. The parties agree that they will at any
time and from time to time, upon request of the other, do, execute, acknowledge
and deliver, or will cause to be done, executed, acknowledged and delivered, all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary to carry out the purpose
or intent of the provisions of this Agreement.
Section 6.5 Inurement. This Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
Section 6.6 Notices. All notices of requests, demands or other
communications required or to be given hereunder shall be delivered by hand,
overnight courier, facsimile transmission, or by United States Mail postage
prepaid, by registered or certified mail (return
6
receipt requested), to the address or addresses indicated below and shall be
deemed given when received by the address thereof:
To Employer: Xxxxxx X. Xxxxxxx, President
Empower Health Corporation
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
To Employee: Xxxxxx Xxxx
00000 Xxxxx Garden Cove
Xxxxxx, XX 00000
--------------------------------------
Or at such other address or addresses as may be expressly designated by either
party by notice given in accordance with the foregoing provision.
Section 6.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 6.8 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association in Xxxxxx, Xxxxxx County, Texas, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof and shall not be appealable.
Section 6.9 Gender. Wherever herein the singular number is used, the same
shall include the plural and the masculine gender shall include the feminine and
neuter genders, and vice versa, as the context may require.
Section 6.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all together shall
constitute but one agreement.
Section 6.11 Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.12 Waiver. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a continuing
waiver of any subsequent breach by either party. No waiver by either party of
any provision or condition to be performed shall be deemed a waiver of similar
or dissimilar provisions or conditions at the time or any prior or subsequent
time.
(SIGNATURE PAGE FOLLOWS)
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the day and year first written above.
EMPLOYER:
EMPOWER HEALTH CORPORATION
By: \s\ X.Xxxxxxx
------------------------------
Name:
Title: CEO/Pres.
EMPLOYEE:
By: \s\ Xxxxxx Xxxx
------------------------------
Name:
Empower Health - Employment Agreement
