EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into by and between
ORCA Technologies, Inc., a Utah Corporation ("Employer") and Xxxx Xxxxx, an
individual ("Employee"). Employer and Employee are hereinafter referred to at
times individually as the "Party" and collectively as the "Parties".
RECITALS
I. Employer is engaged in the business of developing, and providing services,
software and technologies to healthcare providers, (the "Business").
Employer is presently in the process of enhancing its "CuraSys" suite of
software products for delivery to the alternative site health care
provider market. As part of its development strategy, Employer intends to
source out for acquisition other compatible software programs for
integration into its products and the developers of such programs for
employment into its development team.
II. Employer has entered into an "Asset Purchase and Development Agreement"
with Employee and Millennium, Inc., the company founded and owned by him.
Employee, through Millennium has developed two software programs named
"Dispatch" and "Sentry", which Employer has purchased under the terms of
the above referenced agreement. As an integral part of the agreement,
Employee has agreed to employment with Employer as one of its Senior
Software Engineers for the purpose of utilizing his unique skills and work
experience with the acquired products to accomplish the enhancement of and
integration of those products into the existing products of Employer.
III. Employee believes that the Business has the potential for significant
growth and profitability and that it is in his and Millennium's best
interest to accept the position of Senior Software Engineer in accordance
with the terms and conditions as provided in the this Agreement and the
Asset Purchase and Development Agreement which is incorporated by
reference.
NOW, THEREFORE, in consideration of the foregoing Recitals, Covenants, and
Conditions herein contained, it is agreed as follows:
AGREEMENT
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1. AGREEMENT TO EMPLOY. Employer hereby agrees to employ Employee and Employee
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hereby agrees to work for Employer for the term and upon all of the
conditions set forth herein.
2. EMPLOYEE'S POSITION AND DUTIES. Employee shall use his best efforts as
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Senior Software Engineer to provide the following services to Employer (the
"Services"):
2.1. Employee shall be responsible for providing analysis, design,
engineering, documentation and production as it relates to the
integration of the "Dispatch" and "Sentry" programs into the Company's
existing suite of software products, its firmware, networking,
messaging systems and utilized hardware devices.
2.2. Development and implementation of all processes, procedures,
methodologies, and practices required in order to ensure consistent,
quality-focused operations of the software engineering division at all
times;
2.3. Assist the Director of Software Engineering in supervising all systems
development and programming services required by Company ;
2.4. Partnering with the ORCA's research and development, clinical and
consulting services and, sales and marketing departments regarding the
refinement of content and development of current and future products
and services;
2.5. Participation in the planning, establishment, and attainment of
performance goals and objectives for ORCA Technologies, Inc;
2.6. Provide regular and accurate communications and expert advice
pertaining to the operational, financial, and administrative status of
the software engineering division to the Director of Software
Development;
2.7. Work toward the development of teamwork and personnel performance
within the organization.
2.8. Participating, as needed, in the definition, analysis, design,
development, and testing of products and services offered by ORCA
Technologies, Inc.
2.9. Employee shall be subject to Employer's control and direction and
shall perform such other duties as may be reasonably requested from
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time to time by Employer. This description of job duties is subject to
change from time to time as the needs of the Employer change.
3. DEVOTION OF TIME AND EFFORT. Employee shall devote that portion of his
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productive time, ability and attention to the Business as required to carry
out the terms of this Agreement. Employee shall, however, be deemed to be a
full-time employee working for the exclusive benefit of Employer as it
relates to the Business. Employee's obligations hereunder shall not preclude
Employee from engaging in other activities, not otherwise precluded by this
Agreement, which do not interfere with the performance of his duties, as
outlined in the Agreement, including, but not limited to, his duty to
provide the Services.
4. PROFESSIONAL CONDUCT. Employee will provide the Services in a professional
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manner that will reflect favorably on Employer and others associated with
Employer, and shall use his best efforts to faithfully perform and discharge
those duties which may be assigned to him from time to time by Employer in
connection with the conduct of Employer's Business.
5. TERM. This Agreement shall be effective as of November 15, 1998, and shall
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continue for a period of thirty one and one-half (31.5) months, or, until
June 30, 2001, unless terminated at an earlier date in accordance with the
express terms and conditions of this Agreement. The contract may be renewed
upon the mutual consent of the parties for additional periods.
5.1. This Agreement shall terminate immediately upon the occurrence of any
of the following events:
5.1.1. Mutual agreement between Employer and Employee;
5.1.2. Death of Employee;
5.1.3. Total disability of Employee; and
5.1.4. "For cause" which shall consist only of fraud, willful
misconduct, conviction of a felony or a crime involving moral
turpitude, habitual and disabling abuse of drugs or alcohol,
or repeated absences from work without cause.
"Total Disability" shall mean the inability of the Employee to
perform those duties of this employment hereunder for which he is
suited by reason of education or experience due to physical or
emotional incapacity or illness for a period of one hundred
eighty (180) consecutive days. If the Company maintains
disability insurance on Employee, the determination of Total
Disability shall
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be made by the insurance carrier writing the disability insurance
policy relating to the Employee. If the Company does not maintain
such insurance, the determination of Total Disability shall be
made by the Board of Directors of the Company and shall be
supported by advice of physicians competent in the area to which
such disability relates. Total Disability shall be deemed to have
occurred on the first day following the one hundred eighty (180)
day period.
6. COMPENSATION. Employer shall compensate Employee for the Services as
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follows (the "Compensation"):
6.1. Salary Structure: For the first year of employment, (November 15, 1998
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through November 15, 1999), Employee shall receive an annual salary
(The Salary) of $97,500.
Salary for the second year (November 16, 1999 through November 15,
2000), Employee shall receive a salary of $105,000.
Salary through the term of this agreement, (November 16, 2000
through June 30, 2001), shall be $115,000.
All compensation shall be paid semi-monthly in equal installments on
the 15th and 31st day of each month and shall be pro-rated in the
event that this Agreement begins or ends on a date other than upon the
beginning or ending of a full pay period.
6.2. Stock Options. Employee shall be qualified to earn incentive stock
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options pursuant to the terms of the Company's "Stock Option Plan"
then in existence.
7. EXPENSES. Employee shall be entitled to be reimbursed in accordance with
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the policies of Employer as adopted and amended from time to time, for all
reasonable and necessary expenses incurred by him in connection with the
performance of his duties of employment hereunder; provided that Employee
shall submit verification of the nature and amount of such expenses in
accordance with the reimbursement policies from time to time adopted by
Employer and in sufficient detail to comply with Internal Revenue Service
Regulations. In no event shall reimbursement be less frequently than once
each month and all said expenses that are reasonable and commensurate with
the position of Employee with Employer shall be subject to reimbursement.
8. BENEFITS. Employee shall become eligible to participate in the company's
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standard medical, dental and life benefits generally provided by Employer to
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its employees and Employer shall make available a 401(k) plan that Employee
may participate in.
9. VACATION AND SICK LEAVE. Employee shall be entitled to vacation at 1.25
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working days per month, (2 weeks per year). Employee shall be entitled to
sick leave of .471 working days per month in addition to the vacation days
provided herein. Employer shall pay Employee's compensation in full during
Employee's vacation and during any allowed sick leave. Employee shall
arrange his vacation to avoid seriously interfering with the Business of
Employer. The Employer shall not unreasonably object to the vacation period
requested by Employee.
10. AGREEMENT NOT TO COMPETE. The Employee agrees that during his employment
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by the Company that he will abide by the non-competition provisions of the
Asset Purchase and Development Agreement to which this agreement is
attached.
11. AGREEMENT NOT TO SOLICIT REFERRAL SOURCES. The Employee agrees that during
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his employment by the Company and through the Expiration Date, he will not,
without the prior written consent of the Company, within the area where
Employer does business on the date employment terminates, either directly or
indirectly, on his own behalf or in the service or on behalf of others
solicit, divert or appropriate, or attempt to solicit, divert or appropriate
any medical providers or other entities that have referred business to or
conducted business with, the Company within the previous twelve (12) months.
12. AGREEMENT NOT TO SOLICIT EMPLOYEES. The Employee agrees that during his
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employment by the Company through the Expiration Date, he will not, without
the prior written consent of the Company, within the Area, either directly
or indirectly, on his own behalf or in the service or on behalf of others,
solicit, or hire, or attempt to solicit or hire or make offers of employment
to any person employed by the Company or that was employed by the Company
within six (6) months of the initial communication with such Employee.
13. OWNERSHIP AND NON-DISCLOSURE AND NON-USE OF TRADE SECRETS.
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13.1. The Employee acknowledges and agrees that all Trade Secrets, and all
physical or electronic embodiments thereof, are confidential to and
shall be and remain the sole and exclusive property of the Company.
Upon request by the Company, and in any event upon termination of his
employment with the Company for any reason, the Employee shall
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promptly deliver to the Company all property belonging to the Company
including, without limitation, all Trade Secrets (and all embodiments
thereof) then in his custody, control or possession.
13.2. The Employee agrees that all Trade Secrets and other proprietary
information of the Company received or developed by Employee as a
result of Employee's employment with the Company will be held in
trust and strictest confidence, that Employee will protect such Trade
Secrets from disclosure and, without the prior written consent of the
Company, will make no use of such Trade Secrets except as required to
perform his duties for the Company. The obligations of
confidentiality contained in this Agreement will apply during
Employee's employment by the Company and at any and all times after
termination of such employment, so long as the information in
question remains Trade Secret.
14. CONFIDENTIALITY. Except as required in the ordinary course of Employer's
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Business, Employee shall hold in confidence and not disclose to any person
or entity without the express prior written authorization of Employer,
either during the term of this Agreement or any time thereafter, the names
or addresses of any of Employer's customers; Employer's past or prospective
dealings with its customers; the parties, dates, or terms of any of
Employer's contracts; any information, trade secrets, systems, processes or
business methods, or any other secret or confidential matter relating to
the customers or the business affairs of Employer or any companies
affiliated with Employer.
15. RIGHT TO EMPLOYER MATERIALS. Employee agrees that all documents and
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intangible media relating to Employer's Business, including, but not
limited to the following; advertising literature, drawings, blueprints,
notes, memorandums, specifications, devices, mechanical parts, formulas,
lists, materials, books, files, reports, correspondence, records and other
documents ("Employer Materials") relating to the Business of Employer,
shall remain the property of Employer. Employer Materials constitute trade
secrets of Employer and shall not be disclosed to any other party except as
expressly authorized by Employer. Upon termination of employment, for any
reason, all Employer Materials shall be returned immediately to Employer,
and Employee shall not make or retain any copies thereof. Employee
acknowledges and agrees that any knowledge, information and materials in
Employee's possession relating to the Business, which Employee possessed
prior to the transfer of the Business to Employer, shall also be deemed to
constitute part of Employer Materials for purposes of this Section.
16. INVENTIONS AND PATENTS. Employee agrees that he will promptly and from
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time to time fully inform and disclose to Employer all inventions,
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designs, improvements, and discoveries which he now has or may hereafter
have during the term of this Agreement which pertain to or relate to the
Business of Employer or to any experimental work carried on by Employer,
whether conceived by the Employee alone or with others and whether or not
conceived during regular working hours. All such inventions, designs,
improvements and discoveries, with the exception of the Inventions which
shall not be the exclusive property of Employer, shall be the exclusive
property of Employer. Employee shall assist Employer to obtain patents on
all such inventions, designs, improvements, and discoveries deemed
patentable by Employer and shall execute all documents and do all things
necessary to obtain letters patent, vest Employer with full and exclusive
title thereto, and protect the same against infringement by others. This
provision shall apply with equal force and effect to any items that may be
subject to copyright or trademark protection. This provision does not apply
to the Inventions or to an invention for which no equipment, supplies,
facility or trade secret information of the Employer was used and which was
developed entirely on the Employee's own time, and (a) which does not
relate, at the time the invention is conceived or reduced to practice, to
(1) the Business of Employer, or (2) actual or demonstrably related
anticipated research or development of Employer, or (b) which does not
result from any work performed by the Employee for the Employer. The
provisions set forth in the preceding sentence shall not, however, in any
way authorize Employee to engage in any such activities set forth therein
in contravention of the provisions of his duties and obligations hereunder.
16.1. All software developed by Employee, his staff, or independent
contractors shall be considered the products of "Works for Hire",
and shall be the exclusive property of ORCA Technologies, Inc.
17. INDEMNIFICATION. Employer shall defend and indemnify Employee and hold
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Employee harmless from and against any and all costs and expenses incurred
by Employee resulting from any acts and decisions made by Employee in good
faith while performing the Services for Employer within the scope of this
Agreement.
18. GENERAL PROVISIONS.
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18.1. Attorney's Fees. In the event that any legal, declaratory, self help
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or equitable action or arbitration or any other action not
considered to be a legal or equitable action is commenced between
the Parties hereto or their personal representatives concerning any
provision of this Agreement or the rights and duties of any person
in relation thereto, the prevailing Party shall be entitled, in
addition to such other relief that may be granted, to a reasonable
sum for their attorney's fees and any other costs and expenses
relating thereto.
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18.2. Construction. This Agreement shall be construed without regard and
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any presumption or other rule requiring construction against the
Party drafting the Agreement. It shall be construed neither for nor
against any Party, but each provision shall be given reasonable
interpretation in accordance with the plain meaning of its terms and
the express intent of the Parties.
18.3. Notices. All notices pertaining to this Agreement shall be in
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writing and shall be transmitted either by facsimile, overnight
mail, personal hand delivery or through the facilities of the United
States Post Office, certified or registered mail, return receipt
requested. The addresses set forth below for the respective Parties
shall be the places where notices shall be sent, unless written
notice of a change of address is given.
EMPLOYER EMPLOYEE
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ORCA Technologies, Inc. Xxxx Xxxxx
00000 35th Ave, S.E. 00000 X.X. 00xx Xxxxx
Xxxxx 000 Xxxxxxx, XX. 00000
Xxxxxxx, XX. 00000
Attn.: Xxxxxx Xxxxxxx,
VP and General Counsel
18.4 Any such notice shall be deemed to be given as of the date so
delivered.
18.5 Parties in Interest. Nothing in this Agreement shall confer any
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rights or remedies under or by reason of this Agreement on any
persons other than the Parties and their respective successors and
assigns nor shall anything in this Agreement relieve or discharge
the obligation or liability of any third person to any party to this
Agreement, nor shall any provision give any third person any right
of subrogation or action or against any party to this Agreement.
18.6 Amendments, Modifications and Waivers. No amendment or modification
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of this Agreement or any Exhibit or Schedule hereto shall be valid
unless made in writing and signed by the party to be charged
therewith. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision,
whether or not similar. No waiver shall be binding unless executed
in writing by the party making the waiver.
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18.7 Severability. Every provision of this Agreement is intended to be
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severable. If any terms or provisions hereof are illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of the Agreement.
18.8 Assignment. This Agreement is personal to Employee and the Services
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to be provided by Employee are personal and unique to Employee.
Consequently, neither this Agreement nor any duties or obligations
hereunder shall be assignable by Employee without the prior written
consent of Employer, which may be withheld in the sole discretion of
Employer.
18.9 Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be controlled by and construed
under the laws of the State of Washington. In the event of any
litigation arising out of any dispute in connection with this
Agreement, the Parties hereby consent to the jurisdiction of the
Washington courts.
IN WITNESS WHEREOF, the Parties hereby adopt this Agreement effective as of
the 15th day of November, 1998, at Bothell, Washington:
EMPLOYEE EMPLOYER
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ORCA Technologies, Inc.
/s/ Xxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxx Xxxxx Xxxxxxx X. Xxxxxxx
Senior Software Engineer President, Products Group
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