EXHIBIT 99.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered on October
2, 2000, by and between PROXYMED, INC., a Florida corporation ("Company"), and
XXXXX X. XXX ("Employee").
WHEREAS, upon the terms and subject to the conditions of this
Agreement, the Company desires to employ the Employee, and Employee is willing
to accept such employment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth hereinafter and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, the Company and the Employee
agree as follows:
1. Term. The term of this Agreement shall commence on October 16, 2000 (the
"Effective Date"), and shall continue for three (3) years (hereafter, the
"Term"), and shall be automatically extended from year to year thereafter unless
i) terminated by the Company pursuant to Section 5a), b) or c); or ii)
terminated by Employee pursuant to Section 5e) by delivery of not less than
thirty (30) days' written notice to the Company, in which case the employment of
Employee shall terminate on the date which is thirty (30) days following the
date notice is received by the Company or any earlier date if the Company in its
sole discretion so elects.
2. Position; Duties; Loyalty.
a) Position. Employee will be employed by Company and shall render
service to Company as its Executive Vice President and Chief Operations Officer
reporting to the Chief Executive Officer pursuant to the terms, provisions and
conditions hereinafter set forth.
b) Duties. Employee shall be employed by Company on a full-time,
exclusive basis and shall not be required to relocate as a condition of
continued employment. Employee shall perform such duties and have such authority
and responsibilities customarily accompanying her position and as reasonably
directed by the Chief Executive Officer of Company consistent with Employee's
position.
c) Loyalty. Employee shall devote the full working time required for
her position and shall give her best efforts to the business of the Company and
to the performance of the duties and obligations described in the Agreement.
Except as may be authorized in writing by the Chief Executive Officer, Employee
shall not, directly or indirectly, alone, or as a partner, officer, director or
shareholder of any other institution, be engaged in any other commercial
activities whatsoever, or continue or assume any other corporate affiliations
except for (a) passive investments; and (b) minimal time utilized for business
activities that do not compete with the business of the Company or its
subsidiaries.
3. Compensation and Expenses.
a) Salary. In consideration for the services rendered by the Employee
under this Agreement, Company shall pay the Employee a monthly base salary of
$12,083.33 per month ("Base Salary"), subject to federal and state taxes, if
any.
b) Options. Employee will receive a stock option agreement for a ten
(10) year term to purchase up to 650,000 shares of the Company's common stock at
its fair market value defined as the price at which common stock is reported to
have traded on the NASDAQ System at the close of business on the day that
Employee first reports to work. The options will vest over a three (3) year
period as follows: 216,667 on the first anniversary, 216,667 on the second
anniversary, and 216,666 on the day before the third anniversary of Employee's
employment. The options will be as granted as new hire, restricted,
non-qualified options and will also vest upon a "change of control", as defined
in the Company's 2000 1/2 Stock Option Agreement.
c) Bonus Opportunity. Employee may earn bonuses as may be awarded from
time to time at the discretion of the Compensation Committee or the Board of
Directors of the Company.
d) Expenses. Company shall promptly pay or reimburse the Employee for
all reasonable business expenses, including professional fees, dues and
continuing educational seminars, actually incurred or paid by the Employee in
the performance of her services hereunder in accordance with the policies and
procedures of the Company, provided that Employee properly accounts therefor.
Further, Company shall reimburse Employee's reasonable out of pocket expenses
relating to her commuting from Atlanta to Ft. Lauderdale as well as her leasing
of a furnished apartment and the rental of an automobile while living in the Ft.
Lauderdale area during the term of this Agreement provided that the apartment
lease is approved by the Company prior to Employee's execution of it.
e) Tax Withholding. The Company shall have the right to deduct or
withhold from the compensation due Employee hereunder any and all sums required
for Federal income, social security and Medicare taxes and all state and local
taxes now applicable or that may be enacted and become applicable in the future.
4. Benefits.
a) Vacation. Employee will receive three (3) weeks of vacation with pay
during the first year of the Agreement, and thereafter such additional time as
maybe provided the Company's then current policies.
b) Participation in Benefit Plans. As of the Effective Date, Employee
shall be entitled to participate in whatever benefit plans that are extended to
all other executives and employees of the Company. Employee will receive health
insurance, including family coverage, at the Company's expense with the
Company's then current insurance carrier (currently Prudential HMO). If Employee
elects the Prudential Point-Of-Service option, any additional premiums will be
payable by Employee. The Company shall not be obligated to maintain any special
or additional plans for Employee's benefit.
5. Termination.
a) Termination Without Cause; Death; Disability. Upon termination due
to death or Disability, Employee or her beneficiary or estate or legal
representative shall be entitled to receive the amounts payable under Section
5c). For purposes of the Agreement, "Disability" is defined to mean the
inability of Employee due to illness or physical or mental infirmity (as
determined by a physician selected by Employee and acceptable to the Company) to
perform
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her duties hereunder on a full-time basis for six (6) consecutive months with
reasonable accommodation by the Company. Employee shall, upon request of the
Company, furnish information and assistance to the Company, and shall make
herself available to undertake reasonable assignments consistent with the
dignity, importance and scope of her position and her physical and mental
health.
b) Termination For Cause. The Company may terminate Employee's
employment for "cause" effective immediately upon giving written notice thereof.
For purposes of this Agreement, the term "cause" shall be limited to (i)
non-appealable conviction of a felony or of any crime involving fraud or
misrepresentation that adversely affects the Company's reputation in a material
way; (ii) Employee's gross negligence or willful misconduct which is materially
injurious to the Company, (iii) excessive use of alcohol or illegal drugs
interfering with the performance of Employee's duties and the continuance
thereof after written warning; and (iv) any material breach by Employee of a
material obligation under this Agreement with written notice thereof, and an
appropriate period to cure such breach if such breach is curable. For purposes
of this section, no act or failure to act on Employee's part shall be considered
"gross" or "willful" unless done, or omitted to be done, by Employee not in good
faith and without reasonable belief that her action or omission was in the best
interest of the Company. Notwithstanding any term or provision of this Agreement
to the contrary, termination shall not be considered for cause if the
termination resulted from bad judgment or negligence on the part of Employee or
an act or omission which Employee believed at the time to be in good faith and
in the interests of the Company, or not opposed to such interests. Company shall
pay Employee her full Base Salary and benefits through the date of termination
at the then current rate (including any applicable pro rated bonus and accrued
vacation pay). Company shall have no other liabilities or obligations to
Employee. All stock options, if any, which have become vested and exercisable on
or before the termination date shall remain vested and exercisable for such
period of time as specified in Employee's stock option agreement(s).
c) Termination Without Cause. The Company may terminate without cause
this Agreement during the initial term or any renewal term for any or no reason
and by giving Employee ninety (90) days' prior written notice. In the event of
termination by the Company without cause, Employee shall execute a full and
complete release of any and all claims against the Company in a form
satisfactory to the Company, in which event Employee shall be entitled to (i) an
amount equal to Employee's Base Salary as of the date of termination for six (6)
months commencing on the effective date of termination payable in accordance
with the Company's customary payroll practices, plus (ii) a pro rata portion of
any accrued vacation and any bonus compensation which would have been paid to
Employee under any bonus plan, plus (iii) the continuation of all benefits
including, without limitation, all insurance plans, for six (6) months
commencing on the first day following the month of Employee's termination date,
plus (iv) any unvested options shall be vested as of the date of termination.
Further, any termination pursuant to Section 1 above where the initial term or
any renewal term has expired, or pursuant to Section 5e) below regarding a
termination for Good Reason shall be deemed to be a termination without cause
under this Section 5c), and Employee shall be entitled to all payments and
benefits under Sections 5c) and 5g) of this Agreement.
d) Return of Company Property. Upon any termination, Employee shall
immediately return to the Company all property of the Company in Employee's
possession, including Confidential Information (as defined below). Employee
acknowledges that the Company may withhold any compensation and benefits owed to
Employee hereunder until all such property is returned provided that within ten
(10) days after Employee's termination
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Company notifies Employee in writing of those specific items that it believes
are still in the possession of Employee and Employee returns such items
immediately.
e) Termination For Good Reason. Employee may terminate this Agreement
for Good Reason by giving Company thirty (30) days' written notice. "Good
Reason" means: a) the assignment of any duties without Employee's written
consent, which may be withheld in Employee's sole discretion, inconsistent in
any respect with Employee's current or then current position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities hereunder, or any other action by the Company which results in
a diminution in such position, authority, duties or responsibilities; b) any
reduction of Employee's Base Salary or health and other benefits no less
favorable than benefits Employee was entitled to; c) any material breach of this
Agreement by the Company; d) Employee's resignation from the Company or any
successor in interest of the Company, whether voluntary or not, which is
initiated or requested by the Company or any successor in interest of the
Company, and e) any failure on the part of any successor or assign of the
Company to assume and timely perform all the Company's obligations under this
Agreement. Employee's termination for Good Reason shall be deemed a termination
without cause, and she shall be entitled to all the payments as set forth in
Section 5c).
f) Change in Control. If, within ninety (90) days prior to a Change in
Control, as defined in Employee's Stock Option Agreement, the Agreement
terminates for any reason (except pursuant to Section 5b)(i) or (iii) above),
then, (i) any unvested options shall vest as of the date of the Change in
Control and shall remain vested and exercisable as specified in Employee's Stock
Option Agreement, and (ii) Employee shall receive the separation benefits in
accordance with section 5c) above, except 5c)(iv).
g) Acceleration. If the Company defaults in the payment of any amounts
owed to Employee following written notice by Employee, and fails to cure such
default within three (3) days from the date of such notice, Employee shall be
entitled to accelerate the entire amounts due hereunder, plus continuation of
health and other insurance benefits for the applicable period. The Company shall
have the opportunity to cure a monetary default one time after which time, if
another default occurs, Employee shall be entitled to accelerate the entire
amount due hereunder upon written notice by Employee without affording the
Company another opportunity to cure. If Company again fails to pay the entire
amount within three (3) days after such written notice, Employee shall be
entitled and Company shall promptly pay, as liquidated damages and not as a
penalty, the accelerated amount times two, plus any reasonable attorney fees and
costs that Employee may incur as a result of the Company's failure to cure.
6. Covenants of Employee.
a) Employee agrees that so long as Company is in compliance with its
obligations under this Agreement during the Term and for a period of one (1)
year following a termination of employment for cause or nine (9) months
following termination without cause or for Good Reason, she will not, directly
or indirectly, engage, assist or participate in, whether as a director, officer,
executive, agent, manager, consultant partner, owner or independent contractor
or other participant, in any core line of business (currently the core
businesses of the Company involve: i) the electronic transmission of financial
and clinical medical claims and messages and the development, sale and support
of related software, ii) the development, sale and support of medical laboratory
devices, and iii) eHealth related software products applications, and services
and the development of the Company's internet portal, "xxxxxxxx.xxx"), which is
the same as
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the Company or any of its subsidiaries are engaged in as of the termination of
this Agreement without the written consent of the Company, which consent shall
not be unreasonably withheld. Employee and Company agree that this clause is to
protect the interests of the Company while at the same time allowing the
Employee to pursue gainful employment with any other company Employee so
chooses, so long as such Employee does not, within the relevant time period
herein, engage in any line of business that directly competes with any line of
business engaged in by the Company or any of its subsidiaries as of the date
Employee terminates her employment with Company. Nothing contained herein shall
prevent Employee from acquiring less than 1% of any class of securities of any
company that competes with the Company that has any of its securities listed on
a national securities exchange or traded in the over-the-counter market,
provided Employee remains a passive investor.
b) Employee agrees so long as Company is in compliance with its
obligations under this Agreement that during the Term and for one (1) year after
the termination of employment for any reason, she will not, directly or
indirectly, without the prior written consent of the Company, induce or solicit
any person employed or hereafter employed by the Company or any of its
subsidiaries to leave the employ of the Company or any of its subsidiaries or
solicit, recruit, hire or attempt to solicit, recruit or hire any person
employed by the Company. Further, Employee agrees that for a period of one (1)
year after the termination of this Agreement, she will not, directly or
indirectly, without the prior written consent of the Company, solicit for any
business similar to that of the Company, divert away, take away, or attempt to
take away any customer of the Company who was a customer which Employee had,
alone or in conjunction with others, served during her employment with the
Company.
c) Employee agrees and acknowledges that she will disclose promptly to
the Company every discovery, improvement and invention made, conceived or
developed by Employee during the entire period of employment (whether or not
during working hours) which discoveries, improvements or inventions are capable
of use in any way in connection with the business of the Company. To the fullest
extent permitted by law, all such discoveries, inventions and improvements will
be deemed works made for hire. Employee grants and agrees to convey to Company
or its nominee the entire right, title and interest, domestic and foreign, which
she may have in such discoveries, improvements or inventions, or a lesser
interest therein, at the option of Company. Employee further agrees to promptly,
upon request, sign all applications for patents, copyrights, assignments and
other appropriate documents, and to perform all acts and to do all things
necessary and appropriate to carry out the intent of this Section, whether or
not Employee is still an employee of the Company at the time of such requests.
d) Employee agrees and acknowledges that the Confidential Information
of the Company and its subsidiaries (as hereinafter defined) is valuable,
special and unique to its business, that such business depends on such
Confidential Information, and that the Company wishes to protect such
Confidential Information by keeping it confidential for the use and benefit of
the Company. Based on the foregoing, Employee agrees to undertake the following
obligations with respect to such Confidential Information:
i) Employee agrees to keep any and all Confidential
Information in trust for the use and benefit of the Company;
ii) Employee agrees that, except as required by Employee's
duties or authorized in writing by the Company and its subsidiaries, she will
not at any time during and for
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a period of three (3) years after the termination of her employment with the
Company and its subsidiaries, disclose, directly or indirectly, any Confidential
Information of the Company or any of its subsidiaries, except as maybe required
by applicable law or court order, in which case Employee shall promptly notify
Company so as to allow it to seek a protective order if it so elects;
iii) Employee agrees to take all reasonable steps necessary,
or reasonably requested by the Company or its subsidiaries, to ensure that all
Confidential Information of the Company is kept confidential for the use and
benefit of the Company and its subsidiaries; and
iv) Employee agrees that, upon termination of her employment
by the Company or any of its subsidiaries or at any other time the Company may
in writing so request, she will promptly deliver to the Company all materials
constituting Confidential Information (including all copies thereof) that are in
the possession of or under the control of Employee. Employee further agrees
that, if requested by the Company to return any Confidential Information
pursuant to this Subsection (iv), she will not make or retain any copy or
extract from such materials.
For the purposes of this Section 6d), "Confidential
Information" means any and all information developed by or for the Company or
any of its subsidiaries of which Employee gained knowledge by reason of her
employment by the Company or any of its subsidiaries prior to the date hereof or
during her employment that is not generally known in any industry in which the
Company or its subsidiaries is or may become engaged, but does not apply to
information which is generally known to the public or the trade, unless such
knowledge results from an unauthorized disclosure by Employee. Confidential
Information includes, but is not limited to, any and all information developed
by or for the Company concerning plans, marketing and sales methods, materials,
processes, business forms, procedures, devices used by the Company, its
subsidiaries, suppliers and customers with which the Company had dealt with
prior to Employee's termination of employment with the Company and its
subsidiaries, plans for development of new products, services and expansion into
new areas or markets, internal operations, and any trade secrets, proprietary
information of any type owned by the Company and its subsidiaries, together with
all written, graphic and other materials relating to all or any part of the
same. The Company will receive all materials, including, software programs,
source code, object code, specifications, documents, abstracts and summaries
developed in connection with Employee's employment. Employee acknowledges that
the programs and documentation developed in connection with Employee's
employment with the Company shall be the exclusive property of the Company, and
that the Company shall retain all right, title and interest in such materials,
including without limitation patent and copyright interests. Nothing herein
shall be construed as a license from the Company to make, use, sell or copy any
inventions, ideas, trade secrets, trademarks, copyrightable works or other
intellectual property of the Company during the term of this Agreement or
subsequent to its termination.
Employee acknowledges that there is no general geographical
restriction contained in this Section 6d) because the Company's business is not
confined to one geographical area and is national in scope. Notwithstanding the
foregoing, if a court of competent jurisdiction were to determine that any of
the foregoing covenants would be held to be unreasonable in time or distance or
scope, the time or distance or scope may be reduced by appropriate order of the
court to that deemed reasonable.
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e) Injunctive Relief.
i) Employee acknowledges and agrees that the covenants and
obligations contained in this Section 6 relate to special, unique and
extraordinary matters and that a violation of any of the terms of this Section
will cause the Company irreparable injury for which adequate remedies at law are
not available. Therefore, Employee agrees that the Company shall be entitled
(without having to post a bond or other surety) to an injunction, restraining
order, or other equitable relief from any court of competent jurisdiction,
restraining the Employee from committing any violation of the covenants and
obligations set forth in this Section 6.
ii) The Company's rights and remedies under this Section 6 are
cumulative and are in addition to any other rights and remedies the Company may
have pursuant to the specific provisions of this Agreement and at law or in
equity.
f) Prior Employment. Employee confirms that she is not bound by the
terms of any agreement with any previous employer or other party which restricts
in any way her use or disclosure of information or her engagement in any
business, except as Employee may disclose in a separate schedule attached to
this Agreement prior to Company's and Employee's execution of this Agreement.
Further, Employee represents that she has delivered to the Company prior to
executing this Agreement true and complete copies of any agreements disclosed on
such attached schedule. Employee represents to the Company that her execution of
this Agreement, employment with the Company and the performance of her proposed
duties for the Company will not violate any obligations Employee may have to any
such previous employer or other party. In any work for the Company, Employee
will not disclose or make use of any information in violation of any agreements
with or rights of any such previous employer or other party, and will not bring
to the premises of the Company any copies or other tangible embodiments of
non-public information belonging to or obtained from any such previous
employment or other party.
7. Miscellaneous.
a) Attorney's Fees. Except as provided in Section 5g), in the event a
proceeding is brought to enforce or interpret any part of this Agreement or the
rights or obligations of any party to this Agreement, each party shall pay its
own fees and expenses, including reasonable attorney's fees and costs, unless a
court or arbitrator determines otherwise.
b) Successors and Assigns. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the Company and the Employee,
and the Employee's heirs and legal representatives, and the Company's successors
and assigns.
c) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of Florida, without regard to the
application of principles of conflict of laws.
d) Notices. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or sent by certified mail, return receipt
requested, postage prepaid, to the parties to this Agreement addressed to the
Company at its then principal office, as notified to Employee, or to the
Employee at her most current address as shown in her personnel file, or to
either party
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hereto at such other address or addresses as either may from time to time
specify for such purposes in a notice similarly given.
e) Modification; Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by a duly authorized officer of the Company and is agreed to in a
writing signed by the Employee and such officer. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
f) Complete Understanding. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
g) Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
h) Validity. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
i) 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 if 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.
j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
k) Any portion of this Agreement which by it nature survives the
termination of this Agreement, including Section 6, shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
PROXYMED, INC. EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxx
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Signature Signature
Print Name: Xxxxxxx X. Xxxxxx Print Name: Xxxxx X. Xxx
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