exhibit 4.11
SERVICE AGREEMENT
This SERVICE AGREEMENT is entered into as
of September 1, 2002 by and between CareDecision Corp. a
Nevada corporation, (the "Company"), and Xxxxxx Xxxxxxxx
("Xxxxxxxx"), and is effective upon the execution by the
parties hereto.
1. DUTIES AND RESPONSIBILITIES.
X. Xxxxxxxx shall provide
information technology consulting to the Company. Xxxxxxxx
shall report to and perform the duties and responsibilities
assigned to him by the Company's President, or such other
person as may be designated by the Company's Board Of
Directors.
X. Xxxxxxxx agrees to devote his
full time and attention to the Company, to use his best
efforts to advance the business and welfare of the Company,
to render his services under this Agreement fully,
faithfully, diligently, competently and to the best of his
ability, and not to engage in any other employment
activities.
X. Xxxxxxxx shall be based in the
Company's principal office, but Xxxxxxxx shall be required
to travel to other geographic locations in connection with
the performance of his duties
2. PERIOD OF EMPLOYMENT.
X. Xxxxxxxx'x employment with the
Company shall be governed by the provisions of this
Agreement from September 1, 2002, and continuing until this
Agreement terminates pursuant to written notification by
either the Company or Xxxxxxxx, which notification may occur
at any time for any reason. The period during which the
Xxxxxxxx provides services to the Company pursuant to this
Agreement shall be referenced in this Agreement as the
"Employment Period."
B. During the first year of this
Agreement, if Xxxxxxxx is terminated other than for Cause or
if he resigns for Good Reason, he shall be entitled to the
payments and other benefits, set forth in Paragraph 7 of
this Agreement.
3. CASH COMPENSATION.
X. Xxxxxxxx'x initial Base Salary shall be paid
accordingly: $200 per month. Xxxxxxxx will also be paid a
bonus in shares of the company's common stock, said shares
to be registered under the company's S-8 registration. The
number of shares to be granted to Xxxxxxxx shall be equal to
the number of his existing restricted common stock shares
that Xxxxxxxx requests the company to retire. In addition,
Xxxxxxxx shall receive six-hundred fifty thousand warrants
to acquire common stock shares in the company. Each warrant
granted Xxxxxxxx shall have an exercise strike price of
$.05.
B. Except for the conditions described in paragraph
A above, Xxxxxxxx'x compensation shall be subject to
periodic review by the Company, and may be increased or
decreased in the Company's discretion.
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C. The Company shall deduct and
withhold from the compensation payable to Xxxxxxxx hereunder
any and all applicable Federal, State and Local income and
employment withholding taxes and any other amounts required
or authorized by Xxxxxxxx to be deducted or withheld by the
Company under applicable statutes, regulations, ordinances
or orders governing or requiring the withholding or
deduction of amounts otherwise payable as compensation or
wages to employees.
4. EQUITY PARTICIPATION.
Separate from this Agreement and pursuant
and subject to the terms and conditions of the Company's
Stock Option Plan and Stock Option Agreement, when approved,
Xxxxxxxx may be granted options to purchase shares of the
Company's common stock. Xxxxxxxx will additionally be
extended an option to purchase an additional five million
shares of the Company's common stock, at a strike price of
..0475 (four and seventy five one-thousandth cents) per
share provided that specific objectives are mutually
identified and agreed to by CareDecision and Xxxxxxxx.
5. EXPENSE REIMBURSEMENT
In addition to the compensation specified
in Paragraph 3, Xxxxxxxx shall be entitled, in accordance
with the reimbursement policies in effect from time to time,
to receive reimbursement from the Company for reasonable
business expenses incurred by Xxxxxxxx in the performance of
his duties hereunder, provided Xxxxxxxx furnishes the
Company with vouchers, receipts and other details of such
expenses in the form required by the Company sufficient to
substantiate a deduction for such business expenses under
all applicable rules and regulations of Federal and State
taxing authorities.
6. FRINGE BENEFITS.
X. Xxxxxxxx shall, throughout the
Employment Period, shall not be eligible to participate in
all group term life insurance plans, group health plans,
accidental death and dismemberment plans and short-term
disability programs and other employee perquisites which are
made available to the Company's employees.
B. Should the Company terminate
Xxxxxxxx'x employment for Cause, as defined below, or should
Xxxxxxxx voluntarily resign other than for Good Reason, the
Company shall have no obligation to Xxxxxxxx under this
Agreement other than for accrued but unpaid salary. Should
the Company terminate Xxxxxxxx'x employment other than for
Cause during this Agreement, or should Xxxxxxxx resign for
Good Reason, the Company shall have no further obligation
under this Agreement, except that the Company will continue
to pay Xxxxxxxx'x base salary for a six-month period, (less,
if applicable, any long-term disability payments).
7. GOOD REASON.
For Purposes of this agreement, "Good
Reason" shall mean:
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A. A material reduction in the
duties, responsibilities, status, reporting
responsibilities, title, or offices that Xxxxxxxx had with
the Company immediately before the reduction.
B. A reduction by more than 20% of
the total annual cash compensation (defined as Base Salary
and Target Bonus) that Xxxxxxxx was eligible to receive from
the Company and its affiliates immediately before the
reduction, except a reduction that is part of, and
consistent with, an across-the-board reduction in the
salaries of senior officers of the Company.
C. A change in control in which the
Xxxxxxxx is not offered a similar position at no less than
seventy-five percent (75%) of Xxxxxxxx'x compensation
(defined as Base Salary).
D. The failure of any successor to
the Company by merger, consolidation or acquisition of all
or substantially all of the business of the Company to
assume the Company's obligations under this Agreement.
E. A material breach by the Company
of its obligations under this Agreement.
In no event, however, shall a Change in Control be deemed to
occur in connection with any public offering of the Common
Stock.
8. RESTRICTIVE COVENANTS.
During the Employment Period:
(i) Xxxxxxxx shall
devote Xxxxxxxx'x full time and energy solely and
exclusively to the performance of Xxxxxxxx'x duties
described herein, except during periods of illness or
vacation periods.
(ii) Xxxxxxxx shall not
directly or indirectly provide services to or through any
person, firm or other entity except the Company, unless
otherwise authorized by the Board in writing. The Company
does, however, reserve the right to demand Xxxxxxxx'x
resignation from those same Boards, if, in the opinion of
the CareDecision CEO, continued membership on those Boards
by Xxxxxxxx diminishes his ability to execute his
responsibilities identified within this Agreement; or if
continued association with those organizations becomes
detrimental to the goals of the company; or if continued
membership represents a conflict, or potential conflict,
with the business activities, or objectives, of
XxxxXxxxxxxx.xxx.
(iii) Xxxxxxxx shall not
render any services of any kind or character for Xxxxxxxx'x
own account or for any other person, firm or entity without
first obtaining the Company's written consent. Xxxxxxxx,
however, shall have the right to perform such incidental
services as are necessary in connection with (a) Xxxxxxxx'x
private passive investments, but only if Xxxxxxxx is not
obligated or required to (and shall not in fact) devote any
managerial efforts which interfere with the services
required to be performed by him, or (b) Xxxxxxxx'x charitable
or community activities, or participation in trade or
professional organizations, but only if such incidental
services do not interfere with the performance of Xxxxxxxx'x
services to the Company.
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9. NON-COMPETITION DURING THE
EMPLOYMENT PERIOD.
Xxxxxxxx acknowledges and agrees that
given the extent and nature of the confidential and
proprietary information he will obtain during the course of
his employment with the Company, it would be inevitable that
such confidential information would be disclosed or utilized
by the Xxxxxxxx should he obtain employment from, or
otherwise become associated with, an entity or person that
is engaged in a business or enterprise that directly
competes with the Company. Consequently, during any period
for which Xxxxxxxx is receiving payments from the Company,
either as wages or as a severance benefit, including but not
limited to severance pay pursuant to paragraph 7, Xxxxxxxx
shall not, without prior written consent of the Company's
Board of Directors, directly or indirectly own, manage,
operate, join, control or participate in the ownership,
management, operation or control of, or be employed by or
connected in any manner with, any enterprise which is engaged
in any business competitive with or similar to that of the
Company; provided, however, that such restriction shall not
apply to any passive investment representing an interest of
less than two percent (2%) of an outstanding class of
publicly-traded securities of any Company or other enterprise
which is not, at the time of such investment, engaged in a
business competitive with the Company's business.
10. NON-SOLICITATION.
During the Employment Period and for one
(1) year following termination of Xxxxxxxx'x employment,
Xxxxxxxx shall not encourage or solicit any of the Company's
employees to leave the Company's employ for any reason or
interfere in any other manner with employment relationships
at the time existing between the Company and its employees.
In addition, Xxxxxxxx shall not solicit, directly or
indirectly, business from any client of the Company, induce
any of the Company's clients to terminate their existing
business relationship with the Company or interfere in any
other manner with any existing business relationship between
the Company and any client or other third party.
Xxxxxxxx acknowledges that monetary
damages may not be sufficient to compensate the Company for
any economic loss, which may be incurred by reason of his
breach of the foregoing restrictive covenants. Accordingly,
in the event of any such breach, the Company shall, in
addition to the termination of this Agreement and any
remedies available to the Company at law, be entitled to
obtain equitable relief in the form of an injunction
precluding Xxxxxxxx from continuing such breach.
11. PROPRIETARY INFORMATION.
As a condition precedent to Xxxxxxxx'x
employment with the Company, Xxxxxxxx will execute the
Company's standard Confidential Information and Assignment
of Inventions Agreement Xxxxxxxx'x obligations pursuant to
the Confidential Information and Assignment of Inventions
Agreement will survive termination of Xxxxxxxx'x employment
with the Company.
12. SUCCESSORS AND ASSIGNS.
This Agreement is personal in its nature
and Xxxxxxxx shall not assign or transfer his rights under
this Agreement. The provisions of this Agreement shall inure
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to the benefit of, and be binding on each successor of the
Company whether by merger, consolidation, transfer of all or
substantially all assets, or otherwise and the heirs and
legal representatives of Xxxxxxxx.
13. NOTICES.
Any notices, demands or other
communications required or desired to be given by any party
shall be in writing and shall be validly given to another
party if served either personally or if deposited in the
United States mail, certified or registered, postage
prepaid, return receipt requested. If such notice, demand or
other communication shall be served personally, service
shall be conclusively deemed made at the time of such
personal service. If such notice, demand or other
communication is given by mail, such notice shall be
conclusively deemed given forty-eight (48) hours after the
deposit thereof in the United States mail addressed to the
party to whom such notice, demand or other communication is
to be given as hereinafter set forth:
To the Company:
Xxxxxx Xxx, President
CareDecision Corporation
0 Xxxx Xxxxx, 00xx Xxxxx, Xxx. 0000-00
Xxx Xxxx, XX 00000
To Xxxxxxxx:
Xxxxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Any party may change its address for the purpose of
receiving notices, demands and other communications by
providing written notice to the other party in the manner
described in this paragraph.
14. GOVERNING DOCUMENTS.
This Agreement along with the documents
expressly referenced in this Agreement constitute the entire
agreement and understanding of the Company and Xxxxxxxx with
respect to the terms and conditions of Xxxxxxxx'x employment
with the Company and the payment of severance benefits and
supersedes all prior and contemporaneous written or verbal
agreements and understandings between Xxxxxxxx and the
Company relating to such subject matter. This Agreement may
only be amended by written instrument signed by Xxxxxxxx and
an authorized officer of the Company. Any and all prior
agreements, understandings or representations relating to
the Xxxxxxxx'x employment with the Company are terminated
and cancelled in their entirety and are of no further force
or effect.
15. GOVERNING LAW.
The provisions of this Agreement will be
construed and interpreted under the laws of the State of
Nevada. If any provision of this Agreement as applied to any
party or to any circumstance should be adjudged by a court
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of competent jurisdiction to be void or unenforceable for
any reason, the invalidity of that provision shall in no way
affect (to the maximum extent permissible by law) the
application of such provision under circumstances different
from those adjudicated by the court, the application of any
other provision of this Agreement, or the enforceability or
invalidity of this Agreement as a whole. Should any
provision of this Agreement become or be deemed invalid,
illegal or unenforceable in any jurisdiction by reason of
the scope, extent or duration of its coverage, then such
provision shall be deemed amended to the extent necessary to
conform to applicable law so as to be valid and enforceable
or, if such provision cannot be so amended without
materially altering the intention of the parties, then such
provision will be stricken and the remainder of this
Agreement shall continue in full force and effect.
16. REMEDIES.
All rights and remedies provided pursuant
to this Agreement or by law shall be cumulative, and no such
right or remedy shall be exclusive of any other. A party may
pursue any one or more rights or remedies hereunder or may
seek damages or specific performance in the event of another
party's breach hereunder or may pursue any other remedy by
law or equity, whether or not stated in this Agreement.
17. NO WAIVER.
The waiver by either party of a breach of
any provision of this Agreement shall not operate as or be
construed as a waiver of any later breach of that provision.
18. COUNTERPARTS.
This Agreement may be executed in more
than one counterpart, each of which shall be deemed an
original, but all of which together shall constitute but one
and the same instrument.
CareDecision Corporation
/s/ Xxxxxx Xxx
--------------------------------
By: Xxxxxx Xxx
Title: President
Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
--------------------------------
Title: Service Provider
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