Exhibit 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of September
19, 1996 between HealthDesk Corporation, a California corporation (the
"Company"), and Xxxxx X. X'Xxxxxxx.
In consideration of the mutual covenants and conditions set forth
herein, the parties hereby agree as follows:
1. Employment. The Company hereby employs Xxxxx X. X'Xxxxxxx in the capacity of
President, Chief Executive Officer and Chairman of the Board. Xxxxx X. X'Xxxxxxx
accepts such employment and agrees to perform such services as are customary to
such office and as shall from time to time be assigned to him by the Board of
Directors of the Company.
2. Term. The initial term shall be for a period of 15 months, commencing on
September 19, 1996 (the "Commencement Date") and shall be automatically extended
for each successive one year term, unless earlier terminated as provided in
Section 5. Xxxxx X. X'Xxxxxxx'x employment will be on a full-time basis
requiring the devotion of such amount of his productive time as is necessary for
the efficient operation of the business of the Company.
3. Compensation and Benefits.
3.1 Salary. For the performance of Xxxxx X. X'Xxxxxxx'x duties
hereunder, the Company shall pay Xxxxx X. X'Xxxxxxx an annual salary of $163,200
payable (less required withholdings) no less frequently than twice monthly.
3.2 Bonus. The Company shall also pay Xxxxx X. X'Xxxxxxx an annual cash
bonus for each employment year. Which bonus shall be payable within 30 days
following the end of the employment period for which it is earned. Commencing in
calendar year, 1997 Xxxxx X. X'Xxxxxxx will be eligible to participate in a
Short Term Incentive Plan. Ninety (90) days prior to the commencement of the
employment year, the Board of Directors and Xxxxx X. X'Xxxxxxx will establish a
mutually acceptable bonus plan, which plan will provide Xxxxx X. X'Xxxxxxx with
appropriate incentives and opportunity to earn bonus amounts comparable to those
available to top executives officers of similar companies and will base the
incentive award on the full year pre-tax earnings of the company and will be
paid by the end of the first quarter of the following year, subsequent to the
completion of the annual audit.
3.3 Benefits. Xxxxx X. X'Xxxxxxx shall be entitled to such medical,
disability and life insurance coverage and such vacation, sick leave and holiday
benefits, if any, as are made available to the Company's executive personnel,
all in accordance with the Company's benefits program in effect from time to
time.
3.4 Reimbursement of Expenses. Xxxxx X. X'Xxxxxxx shall be entitled to
be reimbursed for all reasonable expenses, including but not limited to expenses
for travel, meals and entertainment, incurred by Xxxxx X. X'Xxxxxxx in
connection with and reasonably related to the furtherance of the Company's
business.
3.5 Annual Review. On each successive annual term of the Commencement
Date, the Board of Directors will review Xxxxx X. X'Xxxxxxx'x performance and
compensation hereunder (including salary, bonus and stock options and/or other
equity incentives) and will consider whether to increase such compensation, but
will not have authority, as the result of such review to decrease any portion of
such compensation with out the written consent of Xxxxx X. X'Xxxxxxx
4. Change of Control. In the event of a Change of Control of the Company (as
defined below), all options then granted to Xxxxx X. X'Xxxxxxx which are
unvested at the date of the Change of Control will be immediately vested. In
addition, notwithstanding the provisions of Section 5.2(b), in the event of a
termination of Xxxxx X. X'Xxxxxxx'x employment hereunder for any reason
following a Change of Control, the Company will promptly pay Xxxxx X. X'Xxxxxxx,
in addition to the amounts required under Section 5.2(a), a lump sum severance
amount, payable immediately upon such termination of employment, equal to six
months of salary, plus at a minimum, a pro-rata portion of the maximum amount of
bonus payable for the employment year during which the termination occurs and
will be paid by the end of the first quarter of the following year, subsequent
to the completion of the annual audit.
As used herein, a "Change of Control" of the Company shall be deemed to
have occurred:
(a) Upon the consummation, in one transaction or a series of
transactions, of the sale or other transfer of voting power (including voting
power exercisable on a contingent or deferred basis as well as immediately
exercisable voting power) representing effective control of the Company to a
person or group of related persons who, on the date of this Agreement, does not
have effective voting control of the Company, whether such sale or transfer
results from a tender offer or otherwise; or
(b) Upon the consummation of a merger or consolidation in which the
Company is a constituent corporation and in which the Company's shareholders
immediately prior thereto will beneficially own, immediately thereafter,
securities of the Company or any surviving or new corporation resulting
therefrom having less than a majority of the voting power of the company or any
such surviving or new corporation; or
(c) Upon the consummation of a sale, lease, exchange or other transfer
or disposition by the "Company of all or substantially all its assets to any
person or group or related persons; or
(d) Upon an election or appointment of one or more directors as the
result of which those persons serving as directors of the Company on the date of
this Agreement (the "Current Directors") and/or their Successors (as defined
below) will not constitute a majority of the Board of Directors of the Company.
As used herein, a "Successor" means a director whose election by the company's
shareholders or whose appointment by the directors then serving the Company has
been approved by a vote of the directors then serving the Company in which at
least two-thirds of those directors who are Original Directors and previously
qualified Successors voted for approval.
5. Termination.
5.1 Termination Events. The employment hereunder will terminate upon
the occurrence of any of the following events:
(a) Xxxxx X. X'Xxxxxxx dies;
(b) the Company, by written notice to Xxxxx X. X'Xxxxxxx or
his personal representative, discharges Xxxxx X. X'Xxxxxxx due to the inability
to perform the duties assigned to him hereunder for a continuous period
exceeding 120 days by reason of injury, physical or mental illness or other
disability, which condition has been certified by a physician; provided,
however, that prior to discharging Xxxxx X. X'Xxxxxxx due to such disability,
the Company shall give a written statement of findings to Xxxxx X. X'Xxxxxxx or
his personal representative setting forth specifically the nature of the
disability and the resulting performance failures, and Xxxxx X. X'Xxxxxxx shall
have a period of ten (10) days thereafter to respond in writing to the Board of
Directors' findings;
(c) Xxxxx X. X'Xxxxxxx is discharged by the Board of Directors
of the Company for cause. As used in this Agreement, the term "cause" means
exclusively Xxxxx X. X'Xxxxxxx'x conviction of (or pleading guilty or nolo
contendre to) a felony or any misdemeanor involving dishonesty or moral
turpitude; provided, however, that prior to discharging Xxxxx X. X'Xxxxxxx for
cause, the Company shall give a written statement of findings to Xxxxx X.
X'Xxxxxxx setting forth specifically the grounds on which cause is based, and
Xxxxx X. X'Xxxxxxx shall have a period of ten (10) days thereafter to respond in
writing to the Board of Directors' findings;
(d) Xxxxx X. X'Xxxxxxx is discharged by the Board of Directors
of the Company without cause, which the Company may do at any time, with at
least 30 days advance notice, or if Xxxxx X. X'Xxxxxxx'x employment agreement is
not renewed;
(e) Xxxxx X. X'Xxxxxxx voluntarily terminates his employment
due to either (i) a default by the Company in the performance of any of its
obligations hereunder, or (ii) an Adverse Change in Duties (as defined below),
which default or Adverse Change in Duties remains unremedied by the Company for
a period of ten days following its receipt of written notice thereof from Xxxxx
X. X'Xxxxxxx; or
(f) Xxxxx X. X'Xxxxxxx voluntarily terminates his employment
for any reason other than the Company's default or an Adverse Change in Duties,
which Xxxxx X. X'Xxxxxxx may do at any time with at least 30 days advance
notice.
As used herein, "Adverse Change in Duties" means an action or series of
actions taken by the Company, without Xxxxx X. X'Xxxxxxx'x prior written
consent, which results in:
(1) A change in Xxxxx X. X'Xxxxxxx'x reporting responsibilities,
titles, job responsibilities or offices which, in Xxxxx X. X'Xxxxxxx'x
reasonable judgment, results in a diminution of his status, control, or
authority; or
(2) The assignment to Xxxxx X. X'Xxxxxxx of any positions, duties or
responsibilities which, in Xxxxx X. X'Xxxxxxx'x reasonable judgment, are
inconsistent with Xxxxx X. X'Xxxxxxx'x positions, duties and responsibilities or
status with the Company or which require Xxxxx X. X'Xxxxxxx to travel more than
previously required; or
(3) A requirement by the Company that to Xxxxx X. X'Xxxxxxx be based or
perform his duties anywhere other than (i) at the Company's corporate office
location on the date of this Agreement, or (ii) if the Company's corporate
office location is moved after the date of this Agreement, at a new location
that is no more than 30 miles from such prior location; or
(4) A failure by the Company (i) to continue in effect any benefit,
whether or not qualified, or other compensation, bonus or incentive plan in
effect on the date of this Agreement or subsequently adopted or (ii) to continue
Xxxxx X. X'Xxxxxxx'x participation in such benefits or plans at the same level
or to the same extent as on the Commencement Date or, with respect to
subsequently adopted benefits or plans, on the date of initial implementation
thereof, or (iii) to provide for Xxxxx X. X'Xxxxxxx'x participation in any newly
adopted benefits or plans at a level or to an extent commensurate, in Xxxxx X.
X'Xxxxxxx'x judgment, with that of other executives of the Company.
5.2 Effects of Termination.
(a) Upon termination of Xxxxx X. X'Xxxxxxx'x employment hereunder for
any reason, the Company will, within 3 days, pay Xxxxx X. X'Xxxxxxx (i) all
compensation owed to Xxxxx X. X'Xxxxxxx and unpaid through the date of
termination (including, without limitation, salary and employee expenses
reimbursements and accrued P.T.O), plus, at a minimum, a pro rata portion of the
maximum amount of bonus payable for the employment year during which the
termination occurs, based on the percentage of the year during which Xxxxx X.
X'Xxxxxxx was employed before such termination and will be paid by the end of
the first quarter of the following year, subsequent to the completion of the
annual audit.
(b) In addition, if the employment is terminated under Sections 5.1
(a), (b), (d), or (e), the Company shall also pay Xxxxx X. X'Xxxxxxx immediately
upon such termination of employment, a lump sum severance amount equal to
one-half of the then applicable annual salary, plus a pro-rata, portion of the
incentive and will be paid by the end of the first quarter of the following
year, subsequent to the completion of the annual audit.
(c) Upon termination of Xxxxx X. X'Xxxxxxx'x employment for any reason,
Xxxxx X. X'Xxxxxxx agrees that for the one (1) year period following the
Termination Event:
(i) Xxxxx X. X'Xxxxxxx will not directly or indirectly
encourage or solicit, or attempt to encourage or solicit, any individual to
leave the Company's employ for any reason or interfere in any other manner with
the employment relationships at the time existing between the Company and its
current or prospective employees;
(ii) Xxxxx X. X'Xxxxxxx will not induce or attempt to induce
any customer, supplier, distributor, licensee or other business relation of the
Company to cease doing business with the Company or in any way interfere with
the existing business relationship between any such customer, supplier,
distributor, licensee or other business relation and the Company.
(iii) Xxxxx X. X'Xxxxxxx will not directly or indirectly,
whether for his own account or as an individual, employee, director, consultant
or advisor, or in any other capacity whatsoever, provide services to any person,
firm corporation or other business enterprise which is involved in the design,
development or marketing of software for the healthcare consumer and/or
providers or manufactures, markets or sells any product or service that directly
or indirectly relates to medical and health related material, specifically
software that enables an end-user to track medical records and health related
activities, learn about health topics and more freely exchange health and
medical information and which is located geographically in an area where the
Company maintains its business activities, unless you obtain the prior written
consent of the Board of Directors.
Xxxxx X. X'Xxxxxxx acknowledges that monetary damages may not be
sufficient to compensate the Company for any economic loss which may be incurred
by reason of breach of the foregoing restrictive covenants. Accordingly, in the
event of any such breach , the Company shall, in addition to any remedies
available to the Company at law, be entitled to obtain equitable relief in the
form of an injunction precluding Xxxxx X.
X'Xxxxxxx from continuing to engage in such breach.
If any restriction set forth in this paragraph is held to be
unreasonable, then Xxxxx X. X'Xxxxxxx and the Company agree, and hereby submit,
to the reduction and limitation of such prohibition to such area or period as
shall be deemed reasonable.
6. General Provisions.
6.1 Assignment. Neither party may assign or delegate any of his rights
or obligations under this Agreement without the prior written consent of the
other party, except laws of succession in item (A).
6.2 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements between the parties relating to such subject matter.
6.3 Modifications. This Agreement may be changed or modified only by an
agreement in writing signed by both parties hereto.
6.4 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Company and its successors and
assigns and Xxxxx X. X'Xxxxxxx and Xxxxx X. X'Xxxxxxx'x legal representatives,
heirs, legatees, distributees, assigns and transferees by operation of law,
whether or not any such person shall have become a party to this Agreement and
have agreed in writing to join and be bound by the terms and conditions hereof.
6.5 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California as such laws are applied
to agreements among California residents entered into and performed entirely
within California.
6.6 Severability. If any provision of the Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect.
6.7 Further Assurances. The parties will execute such further
instruments and take such further actions as may be reasonably necessary to
carry out the intent of this Agreement.
6.8 Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed received by the recipient when
delivered personally or, if mailed, five (5) days after the date of deposit in
the United States mail, certified or registered, postage prepaid and addressed,
in the case of the Company, to 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000, and in case of Xxxxx X. X'Xxxxxxx, to the address shown for
Xxxxx X. X'Xxxxxxx on the signature page hereof, or to such other address as
either party may later specify by at least ten (10) days advance written notice
delivered to the other party in accordance herewith.
6.9 Indemnification. The company will indemnify Xxxxx X. X'Xxxxxxx in
his capacity as an executive officer, to the maximum amount permitted by law.
6.10 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver of that provision, nor prevent
that party thereafter from enforcing that provision of any other provision of
this Agreement.
6.11 Enforcement. If any action at law or in equity or any arbitration
is brought to enforce or interpret the terms of this Agreement or to protect the
rights obtained hereunder, the prevailing party shall be entitled to recover its
reasonable attorneys' fees, costs and other expenses in addition to any other
relief to which it may be entitled.
6.12 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
6.13 Reimbursement of Counsel Costs. Immediately upon commencement of
employment hereunder, the Company will reimburse Xxxxx X. X'Xxxxxxx for the
reasonable amount of all attorney's fees incurred by Xxxxx X. X'Xxxxxxx in
connection with the negotiation and preparation of this Agreement, up to a
maximum amount of $1,500.
IN WITNESS WHEREOF, the Company and Xxxxx X. X'Xxxxxxx have executed this
Agreement effective as of the day and year first above written.
COMPANY XXXXX X. X'XXXXXXX
HealthDesk Corporation, ________________________________
a California corporation Xxxxx X. X'Xxxxxxx
By: Address:
Name: 0000 Xxxxxxxx Xxxxxx #0000
Title: Xxxxxxxxxx, XX 00000
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