EMPLOYMENT AGREEMENT
Exhibit
10.4
This
Employment Agreement (“Agreement”) is made and entered into on this
15th
day of
May, 2006, effective as of the date set forth in paragraph 2.1 below, and
is by
and between Carekeeper Solutions, Inc., a Florida corporation (the “Company”),
and Xxxxxxx X. Xxxx (hereinafter called the “Executive”).
R
E C I T A L S
The
Executive possesses knowledge and skills which the Company believes will
be of
substantial benefit to its operations and success, and the Company desires
to
employ the Executive on the terms and conditions set forth below.
The
Executive is willing to make her services available to the Company on the
terms
and conditions set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties agree as follows:
1. Employment.
1.1 Employment
and Term.
The
Company hereby agrees to employ the Executive and the Executive hereby agrees
to
serve the Company on the terms and conditions set forth herein.
1.2 Duties
of Executive.
During
the Term of Employment under this Agreement, the Executive shall serve as
the
Director of Quality Assurance of the Company. The Executive shall diligently
perform all services as may be assigned to her by the Board of Directors
of the
Company or the Board of Directors of Health Systems Solutions, Inc. (the
“Board”), and shall exercise such power and authority as may from time to time
be delegated to her by the Board. The Executive shall devote her full time
and
attention to the business and affairs of the Company, render such services
to
the best of her ability, and use her best efforts to promote the interests
of
the Company. The Executive shall render such services at the Company’s location
in Atlanta, Georgia or at some another suitable location selected by the
Company. It shall not be a violation of this Agreement for the Executive
to (i)
serve on corporate, civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions,
or
(iii) manage personal investments, so long as such activities do not
significantly interfere with the performance of the Executive’s responsibilities
to the Company in accordance with this Agreement.
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2. Term.
2.1 Initial
Term.
The
initial Term of Employment under this Agreement, and the employment of the
Executive hereunder, shall commence on the date hereof (the “Commencement Date”)
and shall expire on the three (3) year anniversary of the Commencement Date,
unless sooner terminated in accordance with Section 5 hereof (the “Initial
Term”).
2.2 Renewal
Terms.
At the
end of the Initial Term, the Term of Employment automatically shall renew
for
successive one year terms (subject to earlier termination as provided in
Section
5 hereof), unless the Company or the Executive delivers written notice to
the
other at least 30 calendar days prior to the Expiration Date of its or her
election not to renew the Term of Employment.
2.3 Term
of Employment and Expiration Date.
The
period during which the Executive shall be employed by the Company pursuant
to
the terms of this Agreement is sometimes referred to in this Agreement as
the
“Term of Employment,” and the date on which the Term of Employment shall expire
(including the date on which any renewal term shall expire), is sometimes
referred to in this Agreement as the “Expiration Date.”
3. Compensation.
3.1 Base
Salary.
The
Executive shall receive a base salary at the annual rate of $105,000 (the
“Base
Salary”) during the Term of Employment, with such Base Salary payable in
installments consistent with the Company’s normal payroll schedule, subject to
applicable withholding and other taxes. The Base Salary shall be reviewed,
at
least annually, for merit increases and may, by action and in the sole
discretion of the Board, be increased at any time or from time to time.
3.2 Bonuses.
During
the Term of Employment, the Executive shall be eligible to receive bonuses
pursuant to any management bonus program of the Company then in effect in
such
amounts and at such times as the Board (or the Compensation Committee thereof)
shall determine in its sole discretion pursuant to the terms of the program.
If
at any time during the Term of Employment the Executive is terminated without
cause or as a result of disability of the Executive pursuant to the terms
hereof
or in the event of the death of the Executive, then the Executive (or the
deceased Executive’s estate, as the case may be) shall be entitled to receive a
pro-rata portion of the bonus, if any, which accrued during the applicable
year
in which said termination occurs. The amount of any such bonus, assuming
the
Executive’s achievement of applicable milestones, shall be based primarily upon
the overall performance of the Company. Subject to the approval of the
Compensation Committee, the bonus potential for the Director of Quality
Assurance position is anticipated to be an amount up to 5% of the Base Salary.
4. Expense
Reimbursement and Other Benefits.
4.1 Reimbursement
of Expenses.
Upon
the submission of proper substantiation by the Executive, and subject to
such
rules and guidelines as the Company may from time to time adopt, the Company
shall reimburse the Executive for all reasonable expenses actually paid or
incurred by the Executive during the Term of Employment in the course of
and
pursuant to the business of the Company. The Executive shall account to the
Company in writing for all expenses for which reimbursement is sought and
shall
supply to the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company. This reimbursement shall cover,
among other things, the cost of Executive’s cellular telephone use in connection
with her Employment hereunder.
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4.2 Compensation/Benefit
Programs.
During
the term of Employment, the Executive shall be entitled to participate in
all
medical, dental, hospitalization, accidental death and dismemberment,
disability, travel and life insurance plans, and any and all other plans
as are
presently and hereinafter offered by the Company to its executives and/or
key
employees, including savings, pension, profit-sharing and deferred compensation
plans, subject to the general eligibility and participation provisions set
forth
in such plans.
4.3 Working
Facilities.
During
the Term of Employment, the Company shall furnish the Executive with an office,
secretarial help and such other facilities and services suitable to her position
and adequate for the performance of her duties hereunder. In addition, the
Company shall provide the Executive with a laptop computer for use in connection
with her Employment hereunder.
4.4 Stock
Options.
During
the Term of Employment, the Executive shall be eligible to be granted options
(the “Stock Options”) to purchase common stock (the “Common Stock”) of Health
Systems Solutions, Inc. (“HSS”) under (and therefore subject to all terms and
conditions of) HSS’s 2003 Management and Directors Incentive and Compensation
Plan, as may be amended from time-to-time, and any successor plan thereto
(the
“Stock Option Plan”) and all rules of regulation of the Securities and Exchange
Commission applicable to stock option plans then in effect. The number of
Stock
Options and terms and conditions of the Stock Options shall be determined
by the
Committee appointed pursuant to the Stock Option Plan, or by the Board, in
its
sole discretion and pursuant to the Stock Option Plan. HSS, subject to approval
of the Board, shall issue to the Executive 7,500 Stock Options, vesting ¼, ¼,
¼,
and
¼
per
year commencing on the first anniversary of the Commencement Date.
4.5 Other
Benefits.
The
Executive shall be entitled to five weeks Paid Annual Leave (“PAL”) each
calendar year during the Term of Employment, to be taken at such times as
the
Executive and the Company shall mutually determine and provided that no (PAL)
time shall interfere with the duties required to be rendered by the Executive
hereunder. Any PAL time not taken by Executive during any calendar year may
be
carried over to the following year in compliance with the Paid Annual Leave
Policy. The Executive shall receive such additional benefits, if any, as
the
Board of the Company shall from time to time determine.
5. Termination.
5.1 Termination
for Cause.
The
Company shall at all times have the right, upon written notice to the Executive,
to terminate the Term of Employment, for Cause. For purposes of this Agreement,
the term “Cause” shall mean (i) an action or omission of the Executive which
constitutes a willful and material breach of, or failure or refusal (other
than
by reason of her disability) to perform her duties under, this Agreement
which
is not cured within fifteen (15) calendar days after receipt by the Executive
of
written notice of same, (ii) fraud, embezzlement, misappropriation of funds
or
breach of trust in connection with her services hereunder, (iii) indictment
or
other formal charge by any governmental authority of a felony or any other
crime
which involves dishonesty or a breach of trust, or (iv) gross negligence
in
connection with the performance of the Executive’s duties hereunder, which is
not cured within fifteen (15) calendar days after written receipt by the
Executive of written notice of same. Any termination for Cause shall be made
in
writing to the Executive, which notice shall set forth in detail all acts
or
omissions upon which the Company is relying for such termination. The Executive
(together with legal counsel of her choice) shall have the right to address
the
Board regarding the acts set forth in the notice of termination. Upon any
termination pursuant to this Section 5.1, the Company shall only be obligated
to
pay to the Executive her Base Salary to the date of termination. The Company
shall have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination),
subject, however, to the provisions of Section 4.1.
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5.2 Disability.
The
Company shall at all times have the right, upon written notice to the Executive,
to terminate the Term of Employment, if the Executive shall become entitled
to
benefits under the Company’s group disability policy or any individual
disability policy then in effect, or, if the Executive shall as the result
of
mental or physical incapacity, illness or disability, become unable to perform
her obligations hereunder for a period of 90 days in any 12-month period.
The
Company shall have sole discretion based upon competent medical advice to
determine whether the Executive continues to be disabled. Upon any termination
pursuant to this Section 5.2, the Company shall (i) pay to the Executive
any
unpaid Base Salary through the effective date of termination specified in
such
notice, (ii) pay to the Executive a severance payment equal to six months
of the
Executive’s Base Salary at the time of the termination of the Executive’s
employment with the Company, (iii) any bonus due under Section 3.2, above,
and
(iv) continue to provide the Executive with the Benefits (as defined below)
for
such six-month period. The Company shall have no further liability hereunder
(other than for reimbursement for reasonable business expenses incurred prior
to
the date of termination, subject, however to the provisions of Section 4.1).
5.3 Death.
Upon
the death of the Executive during the Term of Employment, the Company shall
pay
to the estate of the deceased Executive any unpaid Base Salary through the
Executive’s date of death, any bonus due under Section 3.2, above and any
accrued PAL. The Company shall have no further liability hereunder (other
than
for reimbursement for reasonable business expenses incurred prior to the
date of
the Executive’s death), subject, however to the provisions of Section 4.1.
5.4 Termination
Without Cause.
At any
time the Company shall have the right to terminate the Term of Employment
by
written notice to the Executive. Upon any termination pursuant to this Section
5.4 (that is not a termination under any of Sections 5.1, 5.2, 5.3, or 5.5),
the
Company shall (i) pay to the Executive any unpaid Base Salary through the
effective date of termination specified in such notice, (ii) continue to
pay the
Executive’s Base Salary for a period of twelve (12) months from notice of
termination hereunder payable in installments consistent with the Company’s
normal payroll schedule, subject to applicable withholding and other taxes
(the
“Continuation Period”), (iii) continue to provide the Executive with the
benefits she was receiving under Sections 4.2 and 4.4 hereof (the “Benefits”)
through the end of the Continuation Period in the manner and at such times
as
the Benefits otherwise would have been payable or provided to the Executive.
In
the event that the Company is unable to provide the Executive with any Benefits
required hereunder by reason of the termination of the Executive’s employment
pursuant to this Section 5.4, then the Company shall pay the Executive cash
equal to the value of the Benefit that otherwise would have accrued for the
Executive’s benefit under the plan, for the period during which such Benefits
could not be provided under the plans. The Company’s good faith determination of
the amount that would have been contributed or the value of any Benefits
that
would have accrued under any plan shall be binding and conclusive on the
Executive. For this purpose, the Company may use as the value of any Benefit
the
cost to the Company of providing that Benefit to the Executive. The Company
shall have no further liability hereunder (other than for (x) reimbursement
for
reasonable business expenses incurred prior to the date of termination, subject,
however, to the provisions of Section 4.1, and (y) payment of compensation
for
unused vacation days that have accumulated during the calendar year in which
such termination occurs). For all purposes under this Agreement, the failure
by
Company to offer to renew the Agreement following the expiration of the Initial
Term or any Renewal Term on the same terms and conditions hereunder shall
not be
treated as if the Company terminated this Agreement pursuant to this Section
5.4.
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5.5 Termination
by Executive.
(a) The
Executive shall at all times have the right, upon 30 calendar days written
notice to the Company, to terminate the Term of Employment.
(b) Upon
termination of the Term of Employment pursuant to this Section 5.5, the Company
shall pay to the Executive any unpaid Base Salary through the effective date
of
termination specified in such notice plus accrued PAL according to the HSS
PAL
policy in effect at the time. The Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however, to the provisions
of Section 4.1). At the Company’s sole option, upon receipt of notice from the
Executive pursuant to this Section, the Company may immediately terminate
the
Term of Employment, in which case, in addition to the covenants set forth
above,
the Company shall pay the Executive 30 days of Base Salary. For all purposes
under this Agreement, the failure by Executive or the Company to offer to
renew
the Agreement following the expiration of the Initial Term or any Renewal
Term
on the same terms and conditions hereunder shall be treated as if the Executive
terminated this Agreement pursuant to this Section 5.5, except that the
Executive shall not be entitled to any Base Salary in excess of that which
is
due through the last day of Executive’s employment hereunder.
5.6 Change
in Control of the Company.
(a) In
the
event that a Change in Control (as defined in paragraph (b) of this Section
5.6)
in the Company shall occur during the Term of Employment, the Company shall
(i)
pay to the Executive any unpaid Base Salary through the effective date of
termination, (ii) continue to pay the Executive’s Base Salary for a period of 12
months payable in installments consistent with the Company’s normal payroll
schedule, subject to applicable withholding and other taxes. Further, upon
the
Change in Control, the Executive’s Stock Options shall immediately vest. The
Company shall have no further liability hereunder (other than for (1)
reimbursement for reasonable business expenses incurred prior to the date
of
termination, subject, however, to the provisions of Section 4.1, and (2)
payment
of compensation for unused vacation days that have accumulated during the
calendar year in which such termination occurs).
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(b) For
purposes of this Agreement, the term “Change in Control” shall mean approval by
the shareholders of the Company of (x) a reorganization, merger, consolidation
or other form of corporate transaction or series of transactions, in each
case,
with respect to which persons who were the shareholders of the Company
immediately prior to such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, own more than 50% of the combined
voting power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated company’s then outstanding voting
securities, in substantially the same proportions as their ownership immediately
prior to such reorganization, merger, consolidation or other transaction,
or (y)
a liquidation or dissolution of the Company or (z) the sale of all or
substantially all of the assets of the Company (unless such reorganization,
merger, consolidation or other corporate transaction, liquidation, dissolution
or sale is subsequently abandoned).
5.7 Resignation.
Upon
any notice or termination of employment pursuant to this Article 5, the
Executive shall automatically and without further action be deemed to have
resigned as an officer, and if she was then serving as a director of the
Company, as a director, and if required by the Board, the Executive hereby
agrees to immediately execute a resignation letter to the Board.
5.8 Release.
The
payment of any severance amount under this Article 5 is conditioned on the
Executive executing and delivering to the Company a general release promptly
after the effective date of termination.
5.9 Survival.
The
provisions of this Article 5 shall survive the termination of this Agreement,
as
applicable.
6. Restrictive
Covenants.
6.1 Non-competition.
At all
times while the Executive is employed by the Company and for a one (1) year
period after the termination of the Executive’s employment with the Company for
any reason, the Executive shall not, directly or indirectly, engage in or
have
any interest in any sole proprietorship, partnership, corporation or business
or
any other person or entity (whether as an employee, officer, director, partner,
agent, security holder, creditor, consultant or otherwise) that directly
or
indirectly (or through any affiliated entity) engages in competition with
the
Company (based on the business in which the Company was engaged or was actively
planning on being engaged as of the date of termination of the Employee’s
employment and in the geographic areas in which the Company operated or was
actively planning on operating as of date of termination of the Employee’s
employment); provided that such provision shall not apply to the Executive’s
ownership of common stock of the Company or the acquisition by the Executive,
solely as an investment, of securities of any issuer that is registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended,
and
that are listed or admitted for trading on any United States national securities
exchange or that are quoted on the National Association of Securities Dealers
Automated Quotations System, or any similar system or automated dissemination
of
quotations of securities prices in common use, so long as the Executive does
not
control, acquire a controlling interest in or become a member of a group
which
exercises direct or indirect control or, more than five percent of any class
of
capital stock of such corporation.
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6.2 Nondisclosure.
The
Executive shall not at any time divulge, communicate, use to the detriment
of
the Company or for the benefit of any other person or persons, or misuse
in any
way, any Confidential Information (as hereinafter defined) pertaining to
the
business of the Company. Any Confidential Information or data now or hereafter
acquired by the Executive with respect to the business of the Company (which
shall include, but not be limited to, information concerning the Company’s
financial condition, prospects, technology, customers, suppliers, sources
of
leads and methods of doing business) shall be deemed a valuable, special
and
unique asset of the Company that is received by the Executive in confidence
and
as a fiduciary, and Executive shall remain a fiduciary to the Company with
respect to all of such information. For purposes of this Agreement,
“Confidential Information” means information disclosed to the Executive or known
by the Executive as a consequence of or through her employment by the Company
(including information conceived, originated, discovered or developed by
the
Executive) prior to or after the date hereof, and not generally known, about
the
Company or its business. Notwithstanding the foregoing, nothing herein shall
be
deemed to restrict the Executive from disclosing Confidential Information
to the
extent required by law.
6.3 Nonsolicitation
of Employees and Clients.
At all
times while the Executive is employed by the Company and for a one (1) year
period after the termination of the Executive’s employment with the Company for
any reason, the Executive shall not, directly or indirectly, for himself
or for
any other person, firm, corporation, partnership, association or other entity
(a) employ or attempt to employ or enter into any contractual arrangement
with
any employee or former employee of the Company, unless such employee or former
employee has not been employed by the Company for a period in excess of six
months, and/or (b) call on or solicit any of the actual or targeted prospective
clients of the Company on behalf of any person or entity in connection with
any
business competitive with the business of the Company, nor shall the Executive
make known the names and addresses of such clients or any information relating
in any manner to the Company’s trade or business relationships with such
customers, other than in connection with the performance of Executive’s duties
under this Agreement.
6.4 Ownership
of Developments.
All
copyrights, patents, trade secrets, or other intellectual property rights
associated with any ideas, concepts, techniques, inventions, processes, or
works
of authorship developed or created by Executive during the course of performing
work for the Company or its clients (collectively, the “Work Product”) shall
belong exclusively to the Company and shall, to the extent possible, be
considered a work made by the Executive for hire for the Company within the
meaning of Title 17 of the United States Code. To the extent the Work Product
may not be considered work made by the Executive for hire for the Company,
the
Executive agrees to assign, and automatically assign at the time of creation
of
the Work Product, without any requirement of further consideration, any right,
title, or interest the Executive may have in such Work Product. Upon the
request
of the Company, the Executive shall take such further actions, including
execution and delivery of instruments of conveyance, as may be appropriate
to
give full and proper effect to such assignment.
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6.5 Books
and Records.
All
books, records, and accounts relating in any manner to the customers or clients
of the Company, whether prepared by the Executive or otherwise coming into
the
Executive’s possession, shall be the exclusive property of the Company and shall
be returned immediately to the Company on termination of the Executive’s
employment hereunder or on the Company’s request at any time.
6.6 Definition
of Company.
Solely
for purposes of this Article 6, the term “Company” also shall include HSS and
any existing or future subsidiaries of the Company (including, without
limitation, Carekeeper) that are operating during the time periods described
herein and any other entities that directly or indirectly, through one or
more
intermediaries, control, are controlled by or are under common control with
the
Company during the periods described herein.
6.7 Acknowledgment
by Executive.
The
Executive acknowledges and confirms that (a) the restrictive covenants contained
in this Article 6 are reasonably necessary to protect the legitimate business
interests of the Company, and (b) the restrictions contained in this Article
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(including without limitation the length of the term of the provisions of
this
Article 6) are not overbroad, overlong, or unfair and are not the result
of
overreaching, duress or coercion of any kind. The Executive further acknowledges
and confirms that her full, uninhibited and faithful observance of each of
the
covenants contained in this Article 6 will not cause her any undue hardship,
financial or otherwise, and that enforcement of each of the covenants contained
herein will not impair her ability to obtain employment commensurate with
her
abilities and on terms fully acceptable to her or otherwise to obtain income
required for the comfortable support of her and her family and the satisfaction
of the needs of her creditors. The Executive acknowledges and confirms that
her
special knowledge of the business of the Company is such as would cause the
Company serious injury or loss if she were to use such ability and knowledge
to
the benefit of a competitor or were to compete with the Company in violation
of
the terms of this Article 6. The Executive further acknowledges that the
restrictions contained in this Article 6 are intended to be, and shall be,
for
the benefit of and shall be enforceable by, the Company’s successors and
assigns.
6.8 Reformation
by Court.
In the
event that a court of competent jurisdiction shall determine that any provision
of this Article 6 is invalid or more restrictive than permitted under the
governing law of such jurisdiction, then only as to enforcement of this Article
6 within the jurisdiction of such court, such provision shall be interpreted
and
enforced as if it provided for the maximum restriction permitted under such
governing law.
6.9 Extension
of Time.
If the
Executive shall be in violation of any provision of this Article 6, then
each
time limitation set forth in this Article 6 shall be extended for a period
of
time equal to the period of time during which such violation or violations
occur. If the Company seeks injunctive relief from such violation in any
court,
then the covenants set forth in this Article 6 shall be extended for a period
of
time equal to the pendency of such proceeding including all appeals by the
Executive.
6.10 Survival.
The
provisions of this Article 6 shall survive the termination of this Agreement,
as
applicable.
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7. Injunction.
It is
recognized and hereby acknowledged by the parties hereto that a breach by
the
Executive of any of the covenants contained in Article 6 of this Agreement
will
cause irreparable harm and damage to the Company, the monetary amount of
which
may be virtually impossible to ascertain. As a result, the Executive recognizes
and hereby acknowledges that the Company shall be entitled to an injunction
from
any court of competent jurisdiction enjoining and restraining any violation
of
any or all of the covenants contained in Article 6 of this Agreement by the
Executive or any of her affiliates, associates, partners or agents, either
directly or indirectly, and that such right to injunction shall be cumulative
and in addition to whatever other remedies the Company may possess.
8. Assignment.
Neither
party shall have the right to assign or delegate her rights or obligations
hereunder, or any portion thereof, to any other person.
9. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Florida.
10. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and, upon its effectiveness, shall
supersede all prior agreements, understandings and arrangements, both oral
and
written, between the Executive and the Company (or any of its affiliates)
with
respect to such subject matter. This Agreement may not be modified in any
way
unless by a written instrument signed by both the Company and the Executive.
11. Notices:
All
notices required or permitted to be given hereunder shall be in writing and
shall be personally delivered by courier, sent by registered or certified
mail,
return receipt requested or sent by confirmed facsimile transmission addressed
as set forth herein. Notices personally delivered, sent by facsimile or sent
by
overnight courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the earlier
of receipt by the addressee, as evidenced by the return receipt thereof,
or
three (3) days after deposit in the U.S. mail. Notice shall be sent (i) if
to
the Company, addressed to 000 Xxxxx Xxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000,
Attn: Chief Executive Officer, and (ii) if to the Executive, to her address
as
reflected on the payroll records of the Company, or to such other address
as
either party hereto may from time to time give notice of to the other.
12. Benefits;
Binding Effect.
This
Agreement shall be for the benefit of and binding upon the parties hereto
and
their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns, including, without limitation,
any
successor to the Company, whether by merger, consolidation, sale of stock,
sale
of assets or otherwise.
13. 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, in the event that
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. If such invalidity
is
caused by length of time or size of area, or both, the otherwise invalid
provision will be considered to be reduced to a period or area which would
cure
such invalidity.
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14. Waivers.
The
waiver by either party hereto of a breach or violation of any term or provision
of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach or violation.
15. Damages.
Nothing
contained herein shall be construed to prevent the Company or the Executive
from
seeking and recovering from the other damages sustained by either or both
of
them as a result of its or her breach of any term or provision of this
Agreement. In the event that either party hereto brings suit for the collection
of any damages resulting from, or the injunction of any action constituting,
a
breach of any of the terms or provisions of this Agreement, then the party
found
to be at fault shall pay all reasonable court costs and attorneys’ fees of the
other.
16. Section
Headings.
The
section headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this Agreement.
17. No
Third Party Beneficiary.
Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon or give any person other than the Company, the parties hereto
and
their respective heirs, personal representatives, legal representatives,
successors and assigns, any rights or remedies under or by reason of this
Agreement.
18. Arbitration.
Notwithstanding anything to the contrary in this Agreement, all claims or
disputes relating in any way to the performance, interpretation, validity,
or
breach of this Agreement (with the exception of the provisions providing
for
injunctive relief) shall be referred to final and binding arbitration, before
a
neutral arbitrator mutually agreeable to the parties, under the commercial
arbitration rules of the American Arbitration Association (the “AAA”), except as
otherwise modified herein, held in Hillsborough County, Florida. Upon
presentation of a demand for arbitration, the parties shall attempt to select
a
mutually-agreeable arbitrator within 20 days. In the event that the parties
are
unable to agree upon an arbitrator, the AAA shall appoint an arbitrator from
its
panel of commercial arbitrators. The arbitrator’s award shall be in writing and
include findings of fact and conclusions of law. Judgment upon the award
rendered by the arbitrators shall be final, binding and conclusive upon the
parties and their respective administrators, executors, legal representatives,
heirs, successors and permitted assigns.
The
arbitrator shall have the power to award (i) monetary damages, (ii) injunctive
relief (preliminary and permanent), and (iii) legal fees and costs associated
with the arbitration to the prevailing party. Any party against whom the
arbitrators’ award shall be issued shall not, in any manner, oppose or defend
against any suit to confirm such award, or any enforcement proceedings brought
against such party with respect to any judgment entered upon the award, and
such
party hereby consents to the entry of a judgment against such party, in the
full
amount thereof, or other relief granted therein, in any court of competent
jurisdiction in which such enforcement is sought. The party against whom
the
arbitrator’s award is issued shall pay the arbitrator’s fees and each of the
parties hereto hereby consent to the jurisdiction of any applicable court
of
general jurisdiction located in the Hillsborough County, Florida with respect
to
the entry of such judgment and each irrevocably submits to the jurisdiction
of
such courts and waives any objection it may have to either the jurisdiction
of
venue of such court.
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19. WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
ANY
OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER OR IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COMPANY ENTERING
INTO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
[Signatures
Begin on Following Page]
11
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
| COMPANY: | |||
|
Carekeeper
Solutions, Inc.
|
|||
| /s/ X. X. Xxxxxxx | |||
|
By: X. X. Xxxxxxx |
|
EXECUTIVE:
|
|||
| /s/ Xxxxxxx X. Xxxx | |||
|
By: Xxxxxxx X. Xxxx |
JOINDER
AND ACCEPTANCE
The
undersigned covenants that it shall be bound by the terms and conditions
contained in Section 4.4 of this Agreement.
The
undersigned have executed this Joinder and Acceptance as of the date first
above
written.
| Health Systems Solutions, Inc. | ||
| |
|
|
| By: | /s/ X. X. Xxxxxxx | |
|
X. X. Xxxxxxx |
||
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