EMPLOYMENT/CONSULTING AGREEMENT
This Employment/Consulting Agreement ("Agreement") is made and entered into
effective as of July 1, 1997, by and between Xxxx X. Xxxxxx (the "Executive")
and Access Health, Inc., a Delaware corporation (the "Company"). The Company
and Executive are sometimes collectively referred to as "the Parties."
WHEREAS, the Parties entered into a certain severance agreement as of
January 28, 1997, (the "Prior Severance Agreement") attached hereto as
Exhibit A.
WHEREAS, the Parties have agreed to exchange this Agreement for the Prior
Severance Agreement.
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive agree as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT/CONSULTANCY.
(a) POSITION. The Company agrees to employ the Executive under the
terms of this Agreement in the position of Senior Vice President, Treasurer and
Chief Accounting Officer; provided, however, that beginning on the Transition
Date (defined below), Executive's status shall change to consultant to the
Company.
(b) OBLIGATIONS. Beginning July 1, 1997, and continuing until May 1,
1998 (the "Transition Date"), the Executive shall devote his full business
efforts and time to the Company. The foregoing, however, shall not preclude the
Executive from engaging in appropriate civic, charitable or religious activities
or from devoting a reasonable amount of time to private investments or from
serving on the boards of directors of other entities, as long as such activities
and services do not interfere or conflict with Executive's responsibilities to
the Company and do not represent business conflicts with the Company's business.
Beginning on the Transition Date, the Executive shall be a consultant to
the Company. For the remaining Term of this Agreement (as defined below), as a
consultant Executive shall be available on an as-needed basis for up to forty
(40) hours per month (including travel time). If more time is required, then
such additional services shall be provided according to mutually agreed-upon
terms.
(c) COMPANY POLICIES. Executive shall comply with all of the
Company's rules and regulations applicable to the executives of the Company and
with all of the Company's policies applicable to other similarly situated
executives established by the Company's management and Board of Directors (the
"Board").
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(d) BASE COMPENSATION. The Executive shall be paid a base salary
(the "Initial Base Compensation") of $152,250 annually, payable bi-weekly. The
Base Compensation shall be subject to review annually for increases by the Board
in its sole discretion in connection with the annual review of salary and
benefits for the Company's management. (The term "Base Compensation" as used
for purposes of Section 6 shall include the Initial Base Compensation together
with any approved increase then in effect.)
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "AFFILIATE" of a person or entity shall mean another person or
entity that directly or indirectly controls, is controlled by, or is under
common control with the person or entity specified.
(b) "CAUSE" shall mean the termination of employment/consultancy of
Executive shall have taken place as a result of (i) Executive's continued
failure to substantially perform Executive's principal duties and
responsibilities during the period from the Effective Date of this Agreement to
the Transition Date (other than as a result of Disability or death) after thirty
(30) days written notice from the Company specifying the nature of Executive's
failure and demanding that such failure be remedied; (ii) Executive's material
and continuing breach of his obligations to the Company set forth in this
Agreement, the Confidentiality Agreement (as defined herein), any
non-competition agreement between the Parties or any written policy of the
Company applicable to all officers after thirty (30) days written notice from
the Company specifying the nature of Executive's breach and demanding that such
breach be remedied (unless such breach by its nature cannot be cured, in which
case notice and an opportunity to cure shall not be required); (iii) Executive's
being convicted of a felony; or (iv) act or acts of dishonesty undertaken by
Executive and intended to result in substantial gain or personal enrichment of
Executive at the expense of the Company.
(c) "CHANGE IN CONTROL" shall mean: (i) a reorganization or merger of
the Company with or into any other corporation which will result in the
Company's stockholders immediately prior to such transaction not holding, as a
result of such transaction, at least 50% of the voting power of the surviving or
continuing entity; (ii) a sale of all or substantially all of the assets of the
corporation which will result in the Company's stockholders immediately prior to
such sale not holding, as a result of such sale, at least 50% of the voting
power of the purchasing entity; (iii) a transaction or series of related
transactions which result in more than 50% of the voting power of the Company
being controlled by a single holder; (iv) a change in the majority of the Board
not approved by at least two-thirds of the Company's directors in office prior
to such change; (v) the adoption of any plan of liquidation providing for the
distribution of all or substantially all of its assets; or (vi) any "person," as
that term is currently used in Section 3(a)(9) and 13(d) of the Securities
Exchange Act, becomes a "beneficial owner," as that term is currently used in
Rule 13d-3 promulgated under that Act, of 45% or more of the voting stock of the
Company.
(d) "CONSTRUCTIVE TERMINATION" shall mean a termination of
employment/ consultancy due to any of the following unless agreed to by
Executive: (i) a reduction in Executive's salary or benefits, excluding the
substitution of substantially equivalent compensation and benefits;
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(ii) relocation of Executive to a location more than 25 miles from his current
location; (iii) failure of a successor to assume and perform under this
Agreement or (iv) termination as a result of Disability. If any of the events
set forth in (i) through (iii) above shall occur, Executive shall give prompt
written notice to the Company and shall have sixty (60) days from the notice or
ninety (90) days from the event, whichever is earlier, to exercise his rights to
terminate for Constructive Termination or such right shall be deemed waived as
to such event, but not as to any future event.
(e) "DISABILITY" shall mean that the Executive, at the time notice is
given, has been unable to perform Executive's duties under this Agreement for a
period of not less than ninety (90) days consecutively as the result of
Executive's incapacity due to physical or mental illness. In the event that the
Executive resumes the performance of substantially all of Executive's duties
hereunder within 90 days of the commencement of leave before the termination of
employment/consultancy becomes effective, any notice of termination shall
automatically be deemed to have been revoked. This paragraph will be enforced
in compliance with the Americans with Disabilities Act.
3. EXECUTIVE BENEFITS.
(a) GENERAL. During the Term of this Agreement, the Executive shall
be entitled to participate in the Company Management Incentive Plan up to 30% of
Base Compensation. Awards under such Plan will range from 0% to 30% based upon
Executive's performance. Executive also shall be entitled to participate in
pension plans, savings or profit-sharing plans, deferred compensation plans,
supplemental retirement or excess-benefit plans, stock option, incentive or
other bonus plans, life, disability, health, accident and other insurance
programs, paid time off (which will accrue for the Executive at a rate of
7.70 hours a pay period beginning on the effective date of this Agreement, or
not less than 25 days a year) and similar plans or programs made available to
executives of the Company, subject in each case to the generally applicable
terms and conditions of the plan or program and the decision of the Board of
Directors or administrators of such plan.
(b) STOCK AWARDS. The Executive has been granted stock options to
purchase shares of the Company's Common Stock as set forth on Exhibit B attached
hereto and by this reference incorporated herein. Executive will be eligible to
receive additional stock option grants in the sole discretion of the Company's
Compensation Committee on the same basis as Company's other executives. In the
event of a Change of Control prior to June 30, 1999, as defined herein or in the
Employee Stock Option Plan, with the lowest Change of Control shareholder
controlling for the purpose, all such stock options held by Executive to
purchase shares of the Company's Common Stock shall become fully vested and
exercisable. In addition, options to purchase 21,450 shares granted prior to
November, 1996, with vesting dates after May, 1999, shall become fully vested
and exercisable as of July 1, 1997.
4. BUSINESS EXPENSES AND TRAVEL. During the Term of Executive's
employment/consultancy under this Agreement, Executive shall be authorized to
incur necessary and reasonable travel, temporary living, entertainment and other
business expenses in connection with his duties hereunder. The Company shall
reimburse Executive for such expenses upon
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presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies.
5. TERM OF EMPLOYMENT/CONSULTANCY.
(a) BASIC RULE. The Company agrees to continue Executive's
employment/consultancy, and Executive agrees to remain an employee of or
consultant to the Company, as applicable, during the Term of this Agreement
pursuant to the provisions of this Agreement.
(b) TERMINATION BY THE COMPANY. The Company may terminate
Executive's employment/consultancy, with thirty (30) days advance notice in
writing, only for Cause or as a result of Disability.
(i) TERMINATION WITHOUT CAUSE INCLUDING CONSTRUCTIVE
TERMINATION AND TERMINATION AS A RESULT OF DISABILITY. If the Company
terminates Executive's employment/ consultancy during the Term of this Agreement
for any reason whatsoever, including a Constructive Termination and termination
as a result of Disability and other than voluntary termination of
employment/consultancy or Termination for Cause, the provisions of Section 6 (a)
shall apply.
(ii) TERMINATION FOR CAUSE. If the Company terminates
Executive's employment/consultancy for Cause during the Term of this Agreement,
the provisions of Section 6(b) shall apply.
(iii) TERMINATION ON DEATH. If the Company terminates
Executive's employment/consultancy as a result of Executive's death, the
provisions of Section 6(c) shall apply.
(c) VOLUNTARY TERMINATION BY THE EXECUTIVE. The Executive may
terminate Executive's employment/consultancy voluntarily by giving the Company
thirty (30) days advance notice in writing, at which time the provisions of
Section 6(b) shall apply. However, if the Executive terminates Executive's
employment/consultancy pursuant to this Section 5(c) as a result of the
occurrence of any of the events set forth in the definition of a Constructive
Termination, such termination shall for all purposes of this Agreement be deemed
a termination by the Company without Cause and the provisions of Section 6(a)
shall apply; provided, if applicable, the Executive has provided written notice
to the Company reasonably specifying the reasons why one of such events in the
definition of a Constructive Termination has occurred, and the Company has not
cured such event within twenty (20) days after receipt of such notice. Any
waiver of notice shall be valid only if it is made in writing and expressly
refers to the applicable notice requirement in this Section 5.
6. PAYMENTS UPON TERMINATION OF EMPLOYMENT/CONSULTANCY.
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(a) PAYMENTS UPON TERMINATION PURSUANT TO SECTION 5(b)(i). If the
Executive's employment/consultancy is terminated by the Company pursuant to
Section 5(b)(i), the Executive shall be entitled to receive the following:
(i) SEVERANCE PAYMENT. The Company shall continue to pay
to the Executive his Base Compensation (the "Severance Payment") for the
remainder of the Term (the "Severance Period"), plus any amounts to which
Executive is entitled under then current Company policies. Such Base
Compensation amount shall be determined with reference to the Base Compensation
in effect for the month in which the date of employment/consultancy termination
occurs.
(ii) STOCK OPTIONS. All stock options shall continue to
vest according to their respective terms through the end of the Term, and shall
remain exercisable for one year following the end of the Term. Executive
acknowledges that incentive stock option treatment under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), will not be available
unless such options are exercised within the time prescribed in the Code. Any
stock option not exercised by the end of such period shall be automatically
cancelled. Except as accelerated pursuant to a Change of Control as provided in
Section 3(b), the vesting of Executive's stock options shall not be accelerated.
(iii) METHOD OF PAYMENT. The Severance Payment shall be
made in bi-weekly payments during the Severance Period.
(iv) HEALTH AND WELFARE BENEFITS. The Company shall
continue to provide health and welfare benefits for the duration of the
Severance Period. Such benefits will be discontinued to the extent that
Executive receives similar benefits in connection with new employment.
Executive will also be entitled to such payments and benefits as may be provided
under applicable benefit plans and programs of the Company.
(v) PAYMENT IN LIEU OF CONTRACT DAMAGES. The Severance
Payment shall be in lieu of any further payments to the Executive and any
further accrual of benefits with respect to periods subsequent to the date of
the employment/consultancy termination.
(vi) DEATH DURING THE SEVERANCE PERIOD. In the event
Executive dies during the Severance Period, his estate or beneficiaries (as the
case may be) shall be paid the benefits set forth in this Section 6(a).
(vii) NO DUTY TO MITIGATE. The Executive shall not be
required to mitigate the amount of any payment contemplated by this Section 6(a)
(whether by seeking new employment or in any other manner).
(b) TERMINATION BY COMPANY FOR CAUSE OR VOLUNTARY TERMINATION. If
the Executive's employment/consultancy is terminated pursuant to
Section 5(b)(ii), or voluntarily (other
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than upon a Constructive Termination) pursuant to Section 5(c), no compensation
or payments will be paid or provided to Executive for the periods following the
date when such a termination of employment/consultancy is effective.
Notwithstanding the preceding sentence, Executive's rights under the benefit
plans and option agreements of the Company shall be determined under the
provisions of those plans and agreements, provided Executive shall have three
(3) months from the date of termination of employment/consultancy in which to
exercise any non-qualified stock option and three (3) months from the date of
termination of employment/consultancy to exercise any incentive stock option in
each case to the extent such options are exercisable as of the date of
termination.
(c) TERMINATION ON DEATH. If the Executive's employment/consultancy
terminates due to his death, the Executive's estate or beneficiaries (as the
case may be) shall be promptly entitled to:
(A) Base Compensation, at his then current rate, through
the end of the Term;
(B) a pro-rata annual incentive award for the year in such
termination occurs, payable in a lump sum promptly thereafter;
(C) acceleration of vesting of options as set forth on
Exhibit B attached hereto;
(D) the continued right to exercise any vested stock option
outstanding on the date of termination for 12 months after that date;
(E) the balance of any incentive awards earned (but not yet
paid);
(F) any other amounts earned, accrued or owing to the
Executive but not yet paid;
(G) other or additional benefits in accordance with
applicable plans and programs of the Company.
(d) CHANGE OF CONTROL TERMINATION. Upon a Change of Control prior to
the Transition Date, the Executive's employment shall automatically terminate
and the Executive shall be entitled to receive the following:
(i) SEVERANCE PAYMENT. The Company shall continue to pay to
the Executive his Base Compensation for twenty-four (24) months (the "Severance
Payment"), plus any amounts to which Executive is entitled under then current
Company policies. Such Base Compensation amount shall be determined with
reference to the Base Compensation in effect for the month in which the date of
employment/consultancy termination occurs.
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(ii) METHOD OF PAYMENT. The Severance Payment shall be made in
bi-weekly payments during the 24-month period.
(iii) HEALTH AND WELFARE BENEFITS. The Company shall continue
to provide health and welfare benefits for the 24-month period. Such benefits
will be discontinued to the extent that Executive receives similar benefits in
connection with new employment. Executive will also be entitled to such
payments and benefits as may be provided under applicable benefit plans and
programs of the Company.
(iv) PAYMENT IN LIEU OF CONTRACT DAMAGES. The Severance
Payment shall be in lieu of any further payments to the Executive and any
further accrual of benefits with respect to periods subsequent to the date of
the Change of Control.
(v) DEATH. In the event Executive dies during the twenty-four
(24) month period following a Change of Control, his estate or beneficiaries (as
the case may be) shall be paid the benefits set forth in this Section.
(vi) NO DUTY TO MITIGATE. The Executive shall not be required
to mitigate the amount of any payment contemplated by this Section 6(d) (whether
by seeking new employment or in any other manner).
7. CODE SECTION 280G PAYMENTS. Anything in this Agreement to the
contrary, if the aggregate of the amounts due the executive under this Agreement
and any other plan or program of the Company constitutes a "Parachute Payment,"
as such term is defined in Section 280G of the Internal Revenue Code of 1986
(the "Code"), and the amount of the Parachute Payment, reduced by all Federal,
state and local taxes applicable thereto, including, the excise tax imposed
pursuant to Section 4999 of the Code, is less than the amount the Executive
would receive, after taxes, if he were paid only three times his Base Amount as
defined in Section 280G(b)(3) of the Code less $1.00, then the payments to be
made to the Executive under this Agreement which are contingent on a Change in
Control shall be reduced to an amount which, when added to the aggregate of all
other payments to the Executive which are contingent on a Change in Control,
will make the total amount of such payments equal to three times his Base amount
less $1.00. The determinations to be made with respect to this paragraph shall
be made by the public accounting firm that is retained by the Company as of the
date immediately prior to the Change in Control (the "Accounting Firm") which
shall provide detailed supporting calculations both to the Company and the
Executive within fifteen (15) business days of being requested to do so by the
Company or the Executive. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
in Control, the Executive shall appoint another nationally recognized public
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. The
Executive shall be responsible for payment of any excise tax imposed under
Section 4999 of the Code on any Parachute Payment as described in this Section.
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8. PROPRIETARY INFORMATION. The Executive agrees to comply fully with
the Company's policies relating to non-disclosure of the Company's trade secrets
and proprietary information and processes, as set out in the Confidentiality
Agreement set out as Exhibit C hereto (the "Confidentiality Agreement").
9. SUCCESSORS.
(a) COMPANY SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and/or
assets shall assume this Agreement and agree expressly to perform this Agreement
in the same manner and to the same extent as the Company would be required to
perform it in the absence of a succession. For all purposes under this
Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by this Agreement or by
operation of law.
(b) EXECUTIVE'S SUCCESSORS. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or five days after being mailed by first class mail, return
receipt requested and postage prepaid. In the case of the Executive, mailed
notices shall be addressed to Executive at the home address which Executive most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Chief Executive Officer.
11. TERM OF AGREEMENT. The term of this Agreement (the "Term") shall be
from the Effective Date until June 30, 1999.
12. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and an officer or a director of the Company
authorized by the Board of Directors. No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
(b) WHOLE AGREEMENT. No agreements, representations or
understandings (whether oral or written and whether express or implied) which
are not expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. This Agreement
supersedes and replaces any and all previous agreements, including but not
limited
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to the Severance Agreement entered into by the Parties as of January 28, 1997,
regarding Executive's compensation or terms of employment or consultancy. This
Agreement shall supersede the provisions regarding acceleration of vesting
provided in any stock option agreements.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Colorado.
(d) SEVERABILITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(e) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Denver County, Colorado, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
(f) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments
or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
(g) LIMITATION OF REMEDIES. If the Executive's
employment/consultancy terminates for any reason, the Executive shall not be
entitled to any payments, benefits, damages, awards or compensation other than
as provided by this Agreement.
(h) EMPLOYMENT TAXES. All payments made pursuant to this Agreement
will be subject to withholding of applicable taxes.
(i) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(j) REPRESENTATION BY COUNSEL. Executive represents that Executive
has had the opportunity to seek independent legal counsel in connection with
entering into the Agreement.
(k) ATTORNEY'S FEES. In any action or arbitration brought under this
Agreement, the prevailing party shall be entitled to his attorneys' fees and
costs.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
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ACCESS HEALTH, INC. XXXX X. XXXXXX
By:
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Print Name:
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Title:
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EXHIBIT B
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SCHEDULE OF OPTIONS
Options Accelerated
Date of Exercise Outstanding Vested As Upon Death
Xxxxx Xxxxx Options Of 1-Jul-97 (With Vesting Dates)
------- -------- -------------- ----------- ----------------------
(As of 1-Jul-97) (See Note A) 7/1/97 - after
5/18/99 5/18/99
Apr-94 $ 6.67 31,500 10,500 21,000 -
Jan-95 $10.25 7,800 3,900 3,900 -
Oct-95 $17.83 30,000 18,000 12,000 -
Oct-95 $17.83 15,000 7,500 7,500 -
May-97 $14.38 20,000 (B) 0 8,000 12,000
May-97 $14.38 30,000 (C) 0 12,000 18,000
TOTAL 134,300 39,900 64,400 30,000
Notes:
(A) Includes the options referred to in Paragraph 3(b) which provides that
options to purchase 21,450 shares granted prior to November, 1996,
with vesting dates after May, 1999, shall become fully vested and
exercisable as of July 1, 1997.
(B) November, 1996, grant reissued as of May 1, 1997.
(C) Additional options granted as of May 1, 1997.
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