EXHIBIT 10.3
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into on
February 5, 2002 (the "Effective Date"), by I-TRAX HEALTH MANAGEMENT SOLUTIONS,
INC., a Delaware corporation with a business office at One Xxxxx Square, 000 X.
00xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, XX 00000 (the "Company"), and XXXXX X.
XXXXXXXXX, an individual residing at 000 Xx. 000, Xxxxx, XX ("Executive").
Executive is currently an employee of WellComm Group, Inc., an
Illinois corporation ("WellComm") pursuant to an Employment Agreement dated
April 27, 2000 (the "Old Agreement"). Executive, WellComm, I-trax, Inc., a
Delaware corporation ("I-trax") and the parent company of the Company, WC
Acquisition, Inc., an Illinois corporation ("Acquisition") and such other
parties as are specifically named therein are parties to a Merger Agreement
dated as of January 28, 2002, as amended effective as of the date hereof (the
"Merger Agreement"). Pursuant to the terms of the Merger Agreement, on the date
hereof Acquisition merged with and into WellComm, with WellComm continuing as
the surviving corporation and immediately after such merger WellComm merged with
and into I-trax with I-trax continuing as the surviving corporation. The Company
is a wholly owned operating subsidiary of I-trax. Except as provided herein,
capitalized terms used but not defined herein have the meanings given to such
terms in the Merger Agreement.
In consideration of the mutual covenants and premises contained
herein, and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, the parties agree as
follows:
1. Term of Employment. The Company hereby agrees to employ Executive
and Executive hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on and as of the Effective
Date and ending on the date which is the third (3rd) anniversary of the
Effective Date (such period being called the "Original Term"), unless sooner
terminated in accordance with the provisions of Section 4 below. Upon the
expiration of the Original Term, the term of Executive's employment shall
automatically extend for successive one-year periods (each such period, an
"Additional Term") unless on or before ninety (90) days prior to the end of the
then applicable Original Term or any Additional Term the Company has notified
the Executive in writing that Executive's employment under this Agreement will
not be extended beyond the end of the then current term, or Executive has
notified Company in writing that her employment under this Agreement will not be
extended beyond the end of the then current term.
2. Title; Capacity; Board of Directors.
2.1 Executive shall serve as a Managing Director of the Company
and of I-trax (or as such other senior executive position with the Company and
I-trax as may be offered to Executive by I-trax's Board of Directors (the
"Board") and which the Executive in her sole discretion may accept) and shall
perform the executive level duties commensurate with such position and such
other executive level duties as the Board may determine provided such duties are
substantially consistent with the executive level duties heretofore performed by
Executive for WellComm. Executive shall perform substantially all of such duties
out of WellComm's offices in Omaha, Nebraska. The Company shall use its
reasonable best efforts to nominate Executive to the Board and cause the
Executive to be elected to, and to continue as a member of, the Board. Except
for her involvement in the activities described in Section 2.2 below, Executive
shall devote attention and energies on a full-time basis to the above executive
level duties, and Executive shall not, during the term of this Agreement,
actively engage in any other for profit business activity.
2.2 Executive shall be permitted to participate in civic,
community or charitable activities and invest and manage her personal assets,
provided such activities do not interfere with the performance of Executive's
duties under this Agreement, require the utilization of other Company resources
or personnel or violate the provisions of Sections 6.1, 6.2 or 6.3 below or
Section 7(c) of the Merger Agreement.
3. Salary; Benefits.
3.1 Base Salary. During the Original Term, Executive shall
receive a base salary at the rate of One Hundred Twenty Five Thousand Dollars
($125,000) per annum. The base salary for any Additional Term, if any, shall be
determined by mutual agreement of Executive and the Board, but in no event shall
the base salary for any Additional Term be less then the base salary during the
then current term. Notwithstanding the preceding provisions, the base salary for
any portion of the Original Term or any Additional Term shall be increased in
the event the Company and/or I-trax implements a base salary increase for the
majority of the executives of the Company and/or I-trax holding positions with
duties and responsibilities substantially similar to those of the Executive.
3.2 Payment in Installments. Executive's annual base salary shall
be paid in periodic installments in accordance with the Company's general
payroll practices, after withholding for all federal, state and local taxes and
required deductions.
3.3 Fringe Benefits. Executive shall be entitled during the term
of this Agreement to participate in and receive only the rights and benefits
available under any health, disability, life insurance, pension or other benefit
plans now or hereafter provided by the Company for its employees.
3.4 Vacation; Sick and Personal Time Off. Executive shall be
entitled to twenty (20) days paid time off for vacation, sick leave and personal
time per year to be taken at such times as may be agreed upon in advance by
Executive and the Company's Chief Executive Officer.
3.5 Reimbursement of Expenses. The Company shall reimburse
Executive in accordance with the Company's policies and procedures for all
reasonable travel, entertainment and other expenses incurred or paid by
Executive in connection with, or related to, the performance of her duties,
responsibilities or services under this Agreement, upon presentation by
Executive of documentation, expense statements, vouchers and/or such other
supporting information as the Company may request; provided, however, that the
amount available for such travel, entertainment and other expenses may be fixed
in advance by the Board.
3.6 Stock Options. The parties hereto acknowledge that as of the
Effective Date, I-trax is granting to Executive non-qualified stock options to
acquire 280,000 shares of I-trax Common Stock at an exercise price of $.01 per
share pursuant to the Option Agreement attached hereto as Exhibit A. Further,
the parties hereto acknowledge that within 5 days of the Effective Date, or such
other date as may be agreed upon by the Parties, I-trax shall grant to Executive
options to acquire 150,000 shares of I-trax Common Stock pursuant to the I-trax
2001 Equity Compensation Plan (such options, collectively, the "Plan Options").
The Plan Options shall vest in three years: 1/3 at first anniversary of
Executive's employment hereunder and the balance quarterly thereafter over the
second and third year of Executive's employment hereunder. Other than as set
forth in this Section 3.6 and in Sections 5.2(a), 5.2(b), 5.2(d), 5.3, 5.4(b)
and 5.4(c) below, the terms of the Plan Options shall, in all respects, be
subject to the terms of the Plan Option Agreement ("Plan Option Agreement") to
be entered into by I-trax and Executive.
4. Employment Termination. The employment of Executive by the Company
pursuant to this Agreement shall terminate upon the occurrence of any of the
following:
4.1 Expiration of Term. Expiration of the Original Term or, if
applicable, the Additional Term in accordance with Section 1.
4.2 Cause. At the election of Company, for Cause, immediately
upon written notice by the Company to Executive. For the purposes of this
Agreement, "Cause" for termination shall be deemed to exist by reason of (a) any
action by Executive resulting in the conviction of Executive of, or the entry of
a plea of guilty or nolo contendere by Executive to, any crime involving moral
turpitude, any felony, or any misdemeanor involving misconduct or fraud in
business activities, (b) any breach of a fiduciary duty involving personal
profit, (c) the willful failure of Executive to perform her duties hereunder,
(d) Executive's willful misconduct, recklessness or gross negligence in the
performance of her duties hereunder, (e) any action by Executive that violates
Section 6 of this Agreement, (f) repeated refusals by Executive to comply with
the reasonable directives of the Board consistent with the terms this Agreement;
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provided, however, that Company may terminate Executive's employment pursuant to
Subsections 4.2(c), (d), (e) or (f) only after the failure by Executive to
correct or cure, or to commence and continue to pursue the correction or curing
of, such refusals within ten (10) days after receipt by Executive of written
notice of the Board of each specific claim of any such refusal and to complete
such correction or cure within forty-five (45) days after receipt of such
notice.
4.3 Without Cause. At the election of Company, at any time, upon
thirty (30) days written notice for any reason whatsoever (including but not
limited to any termination of this Agreement by the Company in connection with
or as a result of a Change of Control (as defined below) of the Company or
I-trax) other than for Cause (as defined in Section 4.2 above).
4.4 Death or Disability. Upon the death of, or thirty (30) days
after the disability of, Executive. As used in this Agreement, the term
"disability" shall mean the inability of Executive, due to a physical or mental
disability, to perform the services contemplated under this Agreement for a
period of three (3) consecutive months or for a cumulative period of four (4)
months within any six (6) consecutive months. A determination of disability
shall be made by a physician satisfactory to both Executive and the Company,
provided that if Executive and the Company do not agree on a physician,
Executive and the Company shall each select a physician and these two together
shall select a third physician, whose determination as to disability shall be
binding on all parties.
4.5 Termination by Executive. At the election of Executive (a) at
any time if her health should become impaired to an extent that makes the
continued performance of her duties hereunder hazardous to her physical or
mental health or her life, as certified by a physician designated by Executive
and reasonably acceptable to the Company, (b) for "good reason" upon delivery of
written notice of such "good reason" to the Company, or (c) upon giving ninety
(90) days written notice of termination, which termination shall be deemed a
breach by Executive of her obligations under this Agreement.
For purposes of Section 4.5(b) above, "good reason" shall mean (i) the failure
by the Company and I-trax to continue Executive in the position of Managing
Director (or such other senior executive position as may be offered by the
Company and I-trax and which Executive may in her sole discretion accept); (ii)
material diminution by the Board or a senior executive officer of the Company or
I-trax of Executive's responsibilities, duties or authority as Managing Director
of the Company and I-trax (or such other senior executive position as may be
offered by the Company and I-trax and which Executive may in her sole discretion
accept) or assignment to Executive of any duties inconsistent with Executive's
position as Managing Director of the Company and I-trax (or such other senior
executive position as may be offered by the Company and I-trax and which
Executive may in her sole discretion accept); (iii) failure by the Company to
pay and provide to Executive the compensation provided in Section 3.1 above,
which failure is not cured within five (5) business days after written notice of
such failure is delivered by Executive to the Company; (iv) requiring Executive
to be permanently based anywhere other than within 25 miles of her present
office location in Omaha, Nebraska (excluding business related travel); or (v)
any other material breach of this Agreement by the Company, which breach is not
cured within thirty (30) days after written notice of such breach is delivered
by Executive to the Company.
5. Effect of Termination.
5.1 Termination for Cause. In the event Executive's employment is
terminated for Cause pursuant to Section 4.2, the Company shall pay to Executive
the base salary and benefits otherwise payable to her under Sections 3.1, 3.2
and 3.3 above, pro rata through the last day of her actual employment by the
Company (such date, the "Termination Date").
5.2 Termination Without Cause.
(a) In the event Executive's employment is terminated for
any reason whatsoever other than for Cause pursuant to Section 4.3 above during
the initial year of the Original Term, (i) the Company shall pay to Executive
the base salary and benefits otherwise payable to her under Sections 3.1, 3.2
and 3.3 above, at such times and in such installments as would be the case if
there had been no termination of employment pursuant to Section 4.3 above
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beginning on the day following the Termination Date through the day which is the
first (1st) anniversary of the Termination Date (such date, the "First
Anniversary Date"); (ii) on and as of the First Anniversary Date, Executive
shall be excused from complying with the restrictive covenants set forth in
Section 6.1 below (but not excused from complying with the restrictive covenants
set forth in Section 7(c) of the Merger Agreement); and (iii) one hundred
percent (100%) of the Plan Options shall immediately accelerate and be vested
and exercisable in full in accordance with the terms of the Plan Option
Agreement.
(b) In the event Executive's employment is terminated for
any reason whatsoever other than for Cause pursuant to Section 4.3 above at any
time after the expiration of the initial year of the Original Term, (i) the
Company shall pay to Executive the base salary and benefits otherwise payable to
her under Sections 3.1, 3.2 and 3.3 above, at such times and in such
installments as would be the case if there had been no termination of employment
pursuant to Section 4.3 above beginning on the day following the Termination
Date through the date which is six months after the Termination Date (such date,
the "Six Month Date"); (ii) on and as of the Six Month Date, Executive shall be
excused from complying with the restrictive covenants set forth in Section 6.1
below (but not excused from complying with the restrictive covenants set forth
in Section 7(c) of the Merger Agreement); and (iii) one hundred percent (100%)
of the Plan Options shall immediately accelerate and be vested and exercisable
in full in accordance with the terms of the Plan Option Agreement.
(c) Executive hereby acknowledges and agrees that if
Executive's employment is terminated for any reason whatsoever other than for
Cause pursuant to Section 4.3 above, then the payment in full of compensation
and the provisions of the other rights described in Sections 5.2(a) or 5.2(b)
above shall represent the total obligation of the Company to Executive under
this Agreement.
(d) Notwithstanding anything in this Section 5.2 to the
contrary, in the event Executive's employment is terminated for any reason
whatsoever other than for Cause pursuant to Section 4.3 above in connection
with, or at any time following, a Change of Control (as defined below) that
results in cash proceeds to Executive on account of Executive's ownership of
I-trax Shares (or any security which may be issued in lieu I-trax Shares as a
result of any reorganization, consolidation, merger, recapitalization or like
transaction): (i) the Company shall not be obligated pay to Executive any
payment provided in Sections 5.2(a) or 5.2(b) above; (ii) Executive shall only
be excused from complying with the restrictive covenants set forth in Section
6.1 below after the Six Month Date (but not excused from complying with the
restrictive covenants set forth in Section 7(c) of the Merger Agreement); and
(iii) one hundred percent (100%) of the Plan Options shall immediately
accelerate and be vested and exercisable in full in accordance with the terms of
the Plan Option Agreement.
For purposes hereof, a "Change of Control" shall be deemed to have occurred: (A)
if any "person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than
persons who are holders of more than five percent (5%) of outstanding I-trax
Shares as of the date hereof) becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company or I-trax representing more than 50% of the voting power of the then
outstanding securities of the Company or I-trax, as applicable; provided that a
Change of Control shall not be deemed to occur as a result of a change of
ownership resulting from the death of a stockholder, and a Change of Control
shall not be deemed to occur as a result of a transaction in which the Company
or I-trax becomes a subsidiary of another corporation in which the stockholders
of the Company or I-trax, as the case may be, immediately prior to the
transaction, will beneficially own, immediately after the transaction, shares
entitling such stockholders to more than 50% of all votes to which all
stockholders of the parent corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote); or (B) upon the closing of (i) a merger or
consolidation of the Company or I-trax with another corporation where the
stockholders of the Company or I-trax, as the case may be, immediately prior to
the merger or consolidation, will not beneficially own, immediately after the
merger or consolidation, shares entitling such stockholders to more than 50% of
all votes to which all stockholders of the surviving corporation would be
entitled in the election of directors (without consideration of the rights of
any class of stock to elect directors by a separate class vote), (ii) the sale
or other disposition of all or substantially all of the assets of the Company or
I-trax, or (iii) a liquidation or dissolution of the Company or I-trax; or (C)
if individuals who are "Incumbent Directors" cease to constitute a majority of
the members of the Board ("Incumbent Directors" for this purpose being persons
who are members of the Board as of the date of this Agreement, provided that any
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person becoming a director subsequent to such date whose election or nomination
for election was supported by two-thirds of the directors who then comprised the
Incumbent Directors shall be considered an Incumbent Director).
5.3 Termination for Death or Disability. If Executive's
employment is terminated by death or because of disability pursuant to Section
4.4 above: (a) the Company shall pay to the estate of Executive or to Executive,
as the case may be, the base salary and benefits otherwise payable to her under
Sections 3.1, 3.2 and 3.3 above through the end of the month in which the
termination of her employment because of death or disability occurs; (b) the
Plan Options scheduled to vest and be exercisable during the period beginning on
the day following the Termination Date through the day which is the first (1st)
anniversary of the Termination Date shall immediately accelerate and be vested
and exercisable in full in accordance with the terms of the Plan Option
Agreement; and (c) if applicable, Executive shall only be excused from complying
with the restrictive covenants set forth in Section 6.1 below after the day
which is the first (1st) anniversary of the Termination Date (but not excused
from complying with the restrictive covenants set forth in Section 7(c) of the
Merger Agreement).
5.4 Termination by Executive.
(a) If Executive terminates this Agreement pursuant to
Section 4.5(a) above, the Company shall pay to Executive the base salary and
benefits otherwise payable to her under Sections 3.1, 3.2 and 3.3 above through
the Termination Date.
(b) If Executive terminates this Agreement pursuant to
Section 4.5(b) above during the initial year of the Original Term: (i) the
Company shall pay to Executive the base salary and benefits otherwise payable to
her under Sections 3.1, 3.2 and 3.3 above, at such times and in such
installments as would be the case if there had been no termination of employment
pursuant to Section 4.5(b) above, through the day which is the first (1st)
anniversary of Termination Date (such date, the "Good Reason Anniversary Date");
(ii) on and as of the Good Reason Anniversary Date, Executive shall be excused
from complying with the restrictive covenants set forth in Section 6.1 below
(but not excused from complying with the restrictive covenants set forth in
Section 7(c) of the Merger Agreement); and (iii) and Plan Options scheduled to
vest and be exercisable as of the Good Reason Anniversary Date shall immediately
accelerate and be vested and exercisable in full in accordance with the terms of
the Plan Option Agreement.
(c) If Executive terminates this Agreement pursuant to
Section 4.5(b) above at any time after the expiration of the initial year of the
Original Term: (i) the Company shall pay to Executive the base salary and
benefits otherwise payable to her under Sections 3.1, 3.2 and 3.3 above, at such
times and in such installments as would be the case if there had been no
termination of employment pursuant to Section 4.5(b) above beginning on the day
following Termination Date through the date which is six months after the
Termination Date (such date, the "Good Reason Six Month Date"); (ii) on and as
of the Good Reason Six Month Date, Executive shall be excused from complying
with the restrictive covenants set forth in Section 6.1 below (but not excused
from complying with the restrictive covenants set forth in Section 7(c) of the
Merger Agreement); and (iii) and Plan Options scheduled to vest and be
exercisable during the period beginning on the day following the Termination
Date through the day which is the first (1st) anniversary of the Termination
Date shall immediately accelerate and be vested and exercisable in full in
accordance with the terms of the Plan Option Agreement..
(d) If Executive terminates this Agreement pursuant to
Section 4.5(c) above, the Company shall pay to Executive the base salary and
benefits otherwise payable to her under Sections 3.1, 3.2 and 3.3 above pro rata
through the Termination Date by the Company, and if such termination shall occur
during the initial year of the Original Term, the Company shall have the right
to assert a claim for damages caused to the Company by reason of Executive's
termination in breach of her obligations under this Agreement.
6. Non-Compete; Confidentiality.
6.1 During the Original Term and any Additional Term (regardless
whether the Original Term or any Additional Term are terminated pursuant to
Sections 4.2 and 4.4 above prior to the scheduled expiration [i.e., the date to
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which such term would have continued if there had been no acceleration of the
end of such term] of the relevant period, except as modified by Sections 5.2(a),
5.2(b), 5.2(d) and 5.4(b) and 5.4(c)) and for a period of one (1) year after the
expiration thereof, Executive will not, directly or indirectly, including
through an Affiliate (as defined in Rule 12b-2 of the regulations promulgated
under the Exchange Act), engage in the population health management and disease
management industry in the same manner in which the Company or I-trax is engaged
in such industry on the date hereof (the "Business") in the United States. For
purposes of this Section 6, each of the following activities, without
limitation, shall be deemed to constitute conducting the Business: engaging in,
working with, maintaining an interest in (other than interests of less than 5%
in companies with securities traded either on the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market, the Nasdaq SmallCap Market
or traded over-the-counter and quoted on the Bulletin Board and/or any interest
in I-trax), advising for a fee or other consideration, managing, operating,
lending money to (other than loans by commercial banks), guaranteeing the debts
or obligations of, or permitting one's name or any part thereof to be used in
connection with an enterprise or endeavor, either individually, in partnership
or in conjunction with any individual, partnership, corporation, limited
liability company, association, joint stock company, trust, joint venture or any
other form of business organization, unincorporated organization or governmental
entity (or any department, agency or subdivision thereof) (each, a "Person"),
whether as principal, director, agent, shareholder, partner, employee,
consultant, independent contractor or in any other manner whatsoever, any Person
in the Business.
6.2 Executive also covenants and agrees that, during the Original
Term and any Additional Term (regardless whether the Original Term or any
Additional Term are terminated pursuant to Sections 4.2 and 4.4 above prior to
the scheduled expiration [i.e., the date to which such term would have continued
if there had been no acceleration of the end of such term] of the relevant
period, except as modified by Sections 5.2(a), 5.2(b), 5.2(d) and 5.4(b) and
5.4(c)) and for a period of one (1) year after the expiration thereof, Executive
will not, directly or indirectly, and no Person (including an Affiliate) over
which Executive exercises control (whether as an officer, director, individual
proprietor, holder of debt or equity securities, consultant, partner, member or
otherwise) (i) solicit or engage or employ or otherwise enter into any agreement
or understanding, written or oral, relating to the services of any Person who is
known or should be known by Executive to be then employed or to have been
employed within the preceding six (6) months by the Company or its Affiliates,
(ii) take any action which could be reasonably expected to lead any Person to
cease to deal with the Company or its Affiliates or (iii) solicit the business
of, enter into any written or oral agreement with or otherwise deal with any
suppliers of goods, products, materials or services in competition with the
Company or its Affiliates or solicit the business of customers of the Company or
its Affiliates who were such at any time during the two (2) year period
preceding the date hereof, except on behalf of businesses in which such party
would then be permitted to engage directly without violating this Section 6.
6.3 Executive also covenants and agrees that, during the Original
Term and any Additional Term (regardless whether the Original Term or any
Additional Term are terminated, under Sections 4.2 and 4.4 above, prior to the
scheduled expiration [i.e., the date to which such term would have continued if
there had been no acceleration of the end of such term] of the relevant period,
except as modified by Sections 5.2(a), 5.2(b), 5.2(d) and 5.4(b) and 5.4(c)) and
for a period of five (5) years after the expiration thereof, Executive shall
treat as trade secrets all Confidential Information (as hereinafter defined)
known or acquired by her in the course of any affiliation Executive shall have
had with the Company and will not disclose any Confidential Information to any
Person not affiliated with the Company except as authorized in writing by the
Company. The term "Confidential Information" shall mean: information relating to
the relationship of the Company or I-trax to their customers (including, without
limitation, the identity of any customer), the research, design, development,
manufacturing, marketing, pricing, costs, capabilities, capacities and business
plans related to the software development activities and other services of the
Company or its Affiliates, the financing arrangements of the Company or its
Affiliates, or the financial condition or prospects of the Company or I-trax;
inventions, products, processes, methods, techniques, formulas, compositions,
compounds, projects, developments, plans, research data, clinical data,
financial data, personnel data, computer programs, Software (as defined below)
and customer and supplier lists and any other confidential information relating
to the assets, condition or business of the Company or its Affiliates.
Notwithstanding the foregoing, Executive shall have no obligation with respect
to (i) information disclosed to Executive by a Person who does not owe a duty of
confidentiality to the Company or any Affiliate thereof; or (ii) information
which is in the public domain and is readily available; or (iii) information
where disclosure is required by law or is necessary in connection with a claim,
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dispute or litigation to which Executive is or becomes a party and the Company
is given ten (10) business days prior written notice of the intent to make
disclosure. For purposes hereof, "Software" shall mean all software owned,
engineered, developed, licensed or sold by the Company, including the following:
(A) all modifications, enhancements, fixes, updates, upgrades, bypasses and
work-arounds, (B) the source code and object code for any of the foregoing; and
(C) all operating systems, bridgeware, firmware, middleware or utilities.
6.4 The restrictions contained in this Section 6 are necessary
for the protection of the business and goodwill of the Company and I-trax and
are considered by Executive to be reasonable for such purpose. Executive
acknowledges and agrees that a breach or threatened breach by Executive of the
covenants contained in this Section 6 would cause the Company and I-trax
irreparable harm and that the extent of damages to the Company and I-trax would
be impossible to ascertain and that there is and will not be available to the
Company or I-trax adequate monetary damages or other remedy at law to compensate
it in the event of any such breach. Consequently, Executive agrees that, in the
event of a breach of any such covenant, in addition to any other relief to which
the Company and I-trax is or may be entitled, the Company or I-trax shall be
entitled, as a matter of course, to an injunction or other equitable relief,
including the remedy of specific performance, to enforce any or all of such
covenants by Executive, her or her employer, employees, partners, agents or any
of them.
6.5 In the event it shall be determined by any arbitrator, court
or governmental agency or authority that any provision of Section 6 is invalid
by reason of the length of any period of time or the size of any area during or
in which such provision is effective, such period of time or area shall be
considered to be reduced to the extent required to cure such invalidity.
6.6 In the event that there should be a violation of the
restrictions contained in Section 6.1, the duration of such restriction shall be
extended for a period of time equal to the period of time during which such
breach or breaches shall occur.
7. Inventions, Patents and Intellectual Property.
7.1 Executive agrees that all inventions, discoveries, computer
programs, data, Software, technology, designs, innovations and improvements
(whether or not patentable and whether or not copyrightable) (individually, an
"Invention," and collectively, "Inventions") related to the business of the
Company which are made, conceived, reduced to practice, created, written,
designed or developed by Executive, solely or jointly with others and whether
during normal business hours or otherwise, during the Original Term, any
Additional Term or thereafter if resulting or directly derived from Confidential
Information, shall be the sole property of the Company. Executive hereby assigns
to the Company all Inventions and any and all related patents, copyrights,
trademarks, trade names, and other industrial and intellectual property rights
and applications therefor, in the United States and elsewhere and appoints any
officer of the Company as her duly authorized attorney to execute, file,
prosecute and protect the same before any government agency, court or authority.
Upon the request of the Company and at the Company's expense, Executive shall
execute such further assignments, documents and other instruments as may be
necessary or desirable to fully and completely assign all Inventions to the
Company and to assist the Company in applying for, obtaining and enforcing
patents or copyrights or other rights in the United States and in any foreign
country with respect to any Invention.
7.2 Executive shall promptly disclose to the Company all
Inventions and will maintain adequate and current written records (in the form
of notes, sketches, drawings and as may be specified by the Company) to document
the conception and/or first actual reduction to practice of any Invention. Such
written records shall be available to and remain the sole property of the
Company at all times.
8. Return of Confidential Information. Executive agrees that all
files, letters, memoranda, reports, records, data, sketches, drawings,
laboratory notebooks, program listings or other written, photographic or other
tangible material, in each event, containing Confidential Information, whether
created by Executive or others, which shall come into her custody or possession,
shall be and are the exclusive property of the Company to be used by Executive
only in the performance of her duties for the Company.
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9. Cooperation. At any time during the term of this Agreement or
thereafter, Executive shall reasonably cooperate with the Company in any
litigation or administrative proceedings involving any matters with which
Executive was involved during her employment by the Company. The Company shall
reimburse Executive for reasonable expenses, if any, incurred in providing such
assistance.
10. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing, and may be given
by a party hereto by (a) personal service (effective upon delivery), (b) mailed
by registered or certified mail, return receipt requested, postage prepaid
(effective five business days after dispatch), (c) reputable overnight delivery
service, charges prepaid (effective the next business day) or (d) telecopy or
other means of electronic transmission (effective upon receipt of the telecopy
or other electronic transmission in complete, readable form), if confirmed
promptly by any of the methods specified in clauses subparagraphs (a)-(c) of
this Section 10, to the other party at the address shown above, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 10.
11. Non-Disparagement. During the term of Executives's employment
hereunder and for five (5) years thereafter, Executive shall not disparage or
deprecate the Company or its Affiliates or their respective businesses,
operations, or properties.
12. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural and
vice versa.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, including the Old Agreement, relating to the subject
matter of this Agreement.
14. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and Executive.
15. Governing Law; Consent to Jurisdiction.
15.1 This Agreement shall be construed, interpreted and enforced
in accordance with the laws of Nebraska, notwithstanding any contrary
application of conflicts of laws principles.
15.2 Each party hereto consents to the jurisdiction of all
Federal and State courts located in Omaha, Nebraska which have jurisdiction over
any disputes arising under this Agreement and agrees that service of process in
any action or proceeding commenced in a court located in Omaha, Nebraska may be
made by written notice as provided in Section 10 hereof.
16. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business; provided, however, that
the obligations of Executive are personal and shall not be assigned by her.
17. Miscellaneous.
17.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver or any right
on any other occasion.
17.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
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17.3 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
17.4 This Agreement may be executed in one or more counterparts
and/or by facsimile, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
[The Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have executed this Agreement as of the day and year set forth
above.
COMPANY:
I-TRAX HEALTH MANAGEMENT
SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President & CEO
Attest: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
EXECUTIVE:
Witness: /s/ Xxxxx Xxxxxxxxx
---------------------- ----------------------------------------
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