Exhibit 10.8
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement"), dated
February 6, 2002, is made and entered into by and between RAYTEL MEDICAL
CORPORATION, a Delaware corporation (the "Company"), and XXXXXXX X. XXXXX (the
"Employee").
RECITALS:
A. The Company and the Employee are parties to an Employee Agreement
dated as of September 28, 1995 (the "Effective Date"), as heretofore amended
(the "Original Employment Agreement");
B. The Company desires to continue the employment of the Employee as the
Company's Chief Executive Officer, and the Employee desires to accept such
continued employment. The employment of the Employee by the Company pursuant to
this Agreement is hereinafter sometimes referred to as the "Employment"; and
C. The Company and the Employee desire to restate and clarify the
Original Employment Agreement and to set forth each and all of the terms and
conditions of the Employment.
NOW THEREFORE, in consideration of the premises and the agreements,
representations and warranties contained in this Agreement, the Company and the
Employee hereby agree as follows:
1. Duties, Term and Exclusive Employment.
1.1 Duties and Responsibilities. Within the limitations
established by the Company's Bylaws, the Employee shall have each and all of the
duties and responsibilities of the Company's Chief Executive Officer. As such,
the Employee shall have responsibility and authority with respect to the
operations and long-term strategy and direction of the Company, subject to the
direction of the Company's Board of Directors.
1.2 Term of Employment. The Employment hereunder shall begin on
the Effective Date and, unless earlier terminated as provided in Paragraph 3
hereof, the Employment shall continue until midnight on the second anniversary
of the Effective Date. The Employment shall be extended automatically for
additional one (1) year terms upon each anniversary of the Effective Date,
beginning on September 28, 1996, unless either party gives written notice to the
other at least thirty (30) days prior to the expiration of the initial term (or,
if applicable, any extended term) of his or its election not to extend the
Employment for the subsequent term.
1.3 No Other Employment or Business Activities. During the term
of the Employment, the Employee shall diligently and conscientiously devote all
of his working time
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and attention to discharging his duties to the Company and shall not, without
the express prior written consent of the Board of Directors of the Company,
render to any other person, corporation, partnership, firm, company, joint
venture or other entity any services of any kind for compensation or engage in
any other activity that would in any manner whatsoever interfere with the
performance of the Employee's duties on behalf of the Company. The foregoing
notwithstanding, nothing herein shall prevent the Employee from engaging in
charitable activities or activities of professional associations, from managing
any personal investments on his own personal time, provided that such
investments are not otherwise competitive with the Company, or engaging in the
additional activities listed and described on Appendix A hereto.
1.4 Proprietary Information and Inventions Agreement. The
Employee acknowledges his obligations under the Employee Agreement Regarding
Proprietary Information and Inventions of even date herewith, attached hereto as
Appendix B (the "Proprietary Information and Inventions Agreement"), and agrees
to be bound by the provisions thereof.
1.5 Indemnity Agreement. The parties acknowledge their respective
obligations under the Indemnity Agreement of even date herewith, attached hereto
as Appendix C (the "Indemnity Agreement"), and agree to be bound by the
provisions thereof.
2. Compensation. In full and complete consideration for the Employment
and each and all of the services to be rendered to the Company, and any
subsidiary or affiliate of the Company, by the Employee, the Employee shall
receive compensation as follows, except as otherwise provided in Paragraph 3
hereof:
2.1 Base Salary. The Employee shall receive from the Company a
base salary, at the initial rate of $282,516 per year, payable in periodic
installments in accordance with the Company's payroll policy as in effect from
time to time. The base salary will be reviewed at least annually during the
continuation of the Employment and may be increased (but not decreased) by the
Company in the sole discretion of its Board of Directors based upon such factors
as the Board of Directors deems relevant, including the financial condition and
operating results of the Company. From each of the Employee's salary payments
the Company will withhold and pay to the proper governmental authorities any and
all amounts required by law to be withheld for federal income tax, state income
tax, federal social security tax, state disability insurance premiums, and any
and all other amounts required by law to be withheld from the Employee's salary.
The Company will also deduct from the Employee's salary payments those sums, if
any, authorized by the Employee in writing and approved by the Company. The
Company will make payments and contributions, such as unemployment insurance
premiums, workers' compensation insurance premiums and the employer's portion of
federal social security tax, which are required by law to be made by the Company
for the Employee's benefit without any deduction from the Employee's salary
payments.
2.2 Bonus Awards. The Employee will be eligible for consideration
for incentive compensation ("Bonus Awards"), although no Bonus Awards are
required to be paid hereunder. All Bonus Awards shall be determined by the
Company's Board of Directors in its sole discretion for such fiscal periods as
it shall determine and based upon such factors as it deems relevant. Each Bonus
Award will be deemed to be earned at the end of the applicable fiscal period and
will be paid to the Employee within ninety (90) days following the end of the
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fiscal period for which such award is made; provided, however, that if, prior to
the end of any such fiscal period, (i) the Employment is terminated as a result
of the Employee's death or disability; (ii) the Company terminates the
Employment other than For Cause pursuant to Paragraph 3.2 hereof; (iii) the
Employment is terminated by the Company giving notice pursuant to Paragraph 1.2
hereof; or (iv) the Employee terminates the Employment for Good Reason pursuant
to Paragraph 3.4 hereof, in each case, the Employee shall be entitled to receive
a prorated Bonus Award determined by multiplying the amount of the Bonus Award,
if any, that the Employee would have received had the Employee been employed for
the full fiscal period by a fraction, the numerator of which is the number of
full months of Employment completed during the fiscal period and the denominator
of which is the number of months in the fiscal period. Any such prorated Bonus
Award will be paid to the Employee within ninety (90) days following the end of
the fiscal period for which such award is made.
2.3 Deferred Compensation Plan. The Employee shall be entitled to
participate in the Company's Deferred Compensation Plan so long as it is
available generally to senior executives of the Company, and in any successor
plan which may be adopted and in effect from time to time during the Employment.
2.4 Stock Options. The Employee is presently the holder of stock
options granted under the Company's Stock Option Plan, which options are subject
to separate written Option Agreements. No such Option Agreement constitutes an
agreement of employment, and no provision of any such Option Agreement shall
operate to extend the term of the Employment hereunder. During the Employment,
the Employee will be eligible for the grant of additional options at the sole
discretion of the Company's Board of Directors based upon such factors as it
deems relevant.
2.5 Vacation. The Employee shall be entitled to paid vacation in
accordance with the Company's vacation policy for senior executives, as in
effect from time to time.
2.6 Automobile Allowance. The Employee shall be entitled to the
payment of a monthly allowance for automobile expenses throughout the term of
the Employment, in the same amount and in accordance with the arrangements
currently in effect, or to such alternate automobile allowance of comparable
economic value as may be in effect from time to time.
2.7 Insurance and Other Benefits. The Employee shall be entitled
to participate in any life, medical, dental and/or disability insurance plans,
together with any supplemental insurance plans, as may be offered by the Company
to its executive employees from time to time during the Employment. The Employee
shall be eligible to participate in any other fringe benefits as may be provided
by the Company to its executives, generally, during the Employment.
3. Termination of Employment. The Employment may be terminated prior to
the end of the term specified in Paragraph 1.2 hereof upon the occurrence of any
of the following:
3.1 Death and Disability. The Employment shall automatically
terminate upon the death of the Employee. The Company shall have the right, but
not the obligation, to terminate the Employment at any time following
determination of the Employee's total disability
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(as defined pursuant to the Company's long-term disability insurance plan
covering the Employee if any such plan is then in effect, or otherwise as
determined by the Company's Board of Directors). In the event of the Employee's
total disability, the Employee's base salary pursuant to Paragraph 2.1 hereof,
shall be continued for the lesser of: (i) the duration of the Employee's total
disability, or (ii) the waiting period determined in the Company's long-term
disability policy then in effect or (iii) one (1) year if no such policy is then
in effect. In the event of the Employee's death or total disability, the
Employee or his estate shall be entitled to receive (A) the Employee's base
salary through the date of termination of the Employment (as extended, in the
case of total disability), plus (B) any Bonus Award earned by the Employee as of
the date of termination of the Employment pursuant to Paragraph 2.2 hereof but
not yet paid, plus (C) any other benefits to which the Employee is entitled
pursuant to the plans described in Paragraphs 2.3 and 2.7 hereof. In the event
of a partial disability that prevents the Employee from effectively performing
his duties and responsibilities hereunder, the parties will attempt, in good
faith, to negotiate a basis upon which the Employee may continue as an employee
of the Company in a reduced capacity and at appropriately reduced compensation.
If no such arrangement is agreed upon, the Company may elect to treat the
Employee's disability as a total disability for purposes of this Paragraph 3.1.
3.2 Termination of Employment by the Company "For Cause". The
Company shall have the unrestricted right, but not the obligation, to terminate
the Employment at any time "For Cause" in the event of the Employee's (i) wilful
and repeated neglect of his duties hereunder (other than as a result of a
physical disability not related to substance abuse), (ii) conviction of a crime
involving moral turpitude, (iii) commission of any act of fraud or dishonesty
against the Company, or (iv) breach of the Employee's obligations hereunder or
under the Proprietary Information and Inventions Agreement which, if curable, is
not cured within ten (10) days following notice thereof by the Company. The
decision to terminate the Employment For Cause, to take other action or to take
no action in response to such occurrence shall be in the sole and exclusive
discretion of the Company. Upon any termination of the Employment by the Company
For Cause, the Employee shall be entitled to receive (A) the Employee's base
salary through the date of such termination, plus (B) any Bonus Award earned by
the Employee as of the date of termination of the Employment pursuant to
Paragraph 2.2 hereof but not yet paid, plus (C) any other benefits to which the
Employee is entitled pursuant to the plans described in Paragraphs 2.3 and 2.7
hereof.
3.3 Other Termination of Employment by the Company. The Company
may terminate the Employment hereunder at any time for any reason, upon notice
to the Employee. However, if the Employment is terminated by the Company for any
reason other than pursuant to Paragraphs 3.1 or 3.2 hereof (including a
termination pursuant to notice given under Section 1.2 hereof), the Employee
shall be entitled to receive his base salary through the date of termination of
the Employment, plus an amount (the "Severance Payment") equal to his then
current base salary for a period of twenty-four (24) months following the date
of termination (the "Severance Period"). The Severance Payment shall be paid in
periodic installments during the Severance Period, in accordance with the
Company's payroll policy as in effect from time to time; provided, however, that
if the Employment is terminated following a "Change of Control" (as defined
below), the full amount of the Severance Payment shall be payable in a single
lump sum immediately upon the Company's delivery of its notice of termination.
The Severance Payment shall be in lieu of any other severance pay or other
benefit to which the Employee might
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otherwise be entitled. In addition, in the event of such a termination, the
Company will, to the extent its plans permit, continue to provide to the
Employee coverage under its life, medical, dental and/or disability plans, as in
effect on the date of termination, during the Severance Period. In the event
that the Company may not continue to provide the benefit of any such plans, the
Severance Payment shall be increased by an amount equal to the Employee's cost
of providing such discontinued coverage for himself and his dependents during
the Severance Period, assuming, where applicable, the timely compliance by the
Employee with any notification procedure required in order to obtain
continuation coverage at group rates. The Employee shall also be entitled, upon
any such termination, to receive (A) any Bonus Award earned by the Employee as
of the date of termination of the Employment pursuant to Paragraph 2.2 hereof
but not yet paid, plus (B) any other benefits to which the Employee is entitled
pursuant to the plans described in Paragraphs 2.3 and 2.7 hereof. For purposes
of this Agreement, a "Change of Control" of the Company shall occur upon: (i) a
merger, consolidation or other reorganization involving the Company, or a tender
offer, exchange offer or other transaction or series of transactions involving
the acquisition of securities of the Company where, in any such case, the
holders of voting securities of the Company immediately prior to such
transaction or series of transactions own less than 50% of the voting securities
of the surviving or successor entity, or its parent, immediately following such
transaction or series of transactions; (ii) the sale of all or substantially all
of the Company's assets; (iii) the sale of all or substantially all of the
capital stock or assets of any subsidiary or subsidiaries of the Company which
accounted for 40% or more of the Company's consolidated revenues for the
preceding fiscal year; or (iv) any change by more than 50% in the composition of
the Company's Board of Directors, accomplished by means of a proxy contest or
otherwise, which is opposed by the incumbent Board of Directors of the Company
or by the Employee.
3.4 Termination of Employment by the Employee For "Good Reason".
The Employee shall have the right to terminate the Employment at any time, upon
notice to the Company, for "Good Reason": (A) in the event that, other than
pursuant to Paragraphs 3.1 or 3.2 hereof, the Company, without the Employee's
prior written consent, (i) materially alters or reduces the Employee's duties,
responsibilities and status with the Company from those which exist as of the
Effective Date; (ii) assigns the Employee duties which are inconsistent with the
Employee's position as Chief Executive Officer of the Company; (iii) materially
breaches the terms of this Agreement in respect to the payment of compensation
or benefits or in any other material respect and such breach is not cured within
ten (10) days after notice thereof; (iv) requires the Employee, as a condition
to the Employment, to be based more than one hundred (100) miles from the
location where he is based as of the Effective Date; or (v) requires the
Employee, as a condition to the Employment, to perform illegal or fraudulent
acts or omissions; or (B) for any reason at any time within six (6) weeks
following a Change of Control; provided, however, that, if requested by the
Company or its successor, the Employee will agree to extend the Employment for a
transition period of up to six (6) weeks following the effectiveness of the
Change of Control, in which case the Employee's right to terminate the
employment under this clause (B) shall begin at the end of such agreed-upon
transition period and end six (6) weeks thereafter. If the Employee voluntarily
terminates the Employment for Good Reason pursuant to this Paragraph 3.4, the
Employee shall be entitled to receive the payments and other benefits specified
in Paragraph 3.3 hereof with respect to a termination by the Company other than
For Cause. If the Employment is terminated following a Change of
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Control pursuant to clause (B) above, the full amount of the Severance Payment
shall be payable in a single lump sum immediately upon the Employee's delivery
of his notice of termination.
3.5 Termination of Employment by the Employee Without "Good
Reason". Upon any voluntary termination of the Employment by the Employee, other
than for Good Reason pursuant to Paragraph 3.4 hereof, the Employee shall be
entitled to receive (i) the Employee's base salary through the date of such
termination, plus (ii) any Bonus Award earned by the Employee as of the date of
termination of the Employment pursuant to Paragraph 2.2 hereof but not yet paid,
plus (iii) any other benefits to which the Employee is entitled pursuant to the
plans described in Paragraphs 2.3 and 2.7 hereof.
4. Expenses. The Company will reimburse the Employee for those
customary, ordinary and necessary business expenses incurred by him in the
performance of his duties and activities on behalf of the Company. Such expenses
will be reimbursed upon presentation by the Employee of appropriate
documentation to substantiate such expenses pursuant to the policies and
procedures of the Company governing reimbursement of business expenses to its
executives.
5. Conflicts of Interest. The Employee covenants, warrants and
represents to the Company that he has the full right and authority to enter into
the Employment and this Agreement, that he has no agreement, duty, commitment or
responsibility of any kind or nature whatsoever with or to any other person,
corporation, partnership, firm, company, joint venture or other entity which
would conflict in any manner whatsoever with any of his duties, obligations or
responsibilities to the Company pursuant to the Employment and/or this
Agreement, and that he is fully ready, willing and able to perform each and all
of his duties, obligations and responsibilities to the Company pursuant to the
Employment and/or this Agreement. As a condition of the Employment and of the
Company's entering into this Agreement, the Company requires that the Employee
not, and the Employee hereby specifically agrees, covenants, warrants and
represents that during the Employment he will not, without the Company's express
prior written consent, accept any employment, contractual or other relationship
of any kind or nature whatsoever or engage in any association or dealing of any
kind or nature whatsoever with any person, corporation, partnership, firm,
company, joint venture, or other entity in competition with any actual or
proposed business of the Company; provided that nothing herein shall prohibit
Employee from owning up to five percent (5%) of the outstanding shares of any
class of equity securities of a corporation engaged in any such prohibited
activity whose securities are listed on a national securities exchange or quoted
daily in the over-the-counter listings of The Wall Street Journal.
6. Duties of the Employee After Any Notice of Termination of the
Employment. Following any notice of termination of the Employment, the Employee
shall fully cooperate with the Company in all matters relating to the winding up
of the Employee's work on behalf of the Company and the orderly transfer of all
pending work and of the Employee's duties and responsibilities to such other
person or persons as may be designated by the Company in its sole discretion.
Upon any termination of the Employment, the Employee will immediately deliver to
the Company any and all of the Company's property of any kind or nature
whatsoever in the Employee's possession, custody or control, including, without
limitation any and all Confidential Information as that term is defined in the
Proprietary Information and Inventions Agreement.
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7. No Predatory Solicitation. During the Employment and for two (2)
years following any termination of the Employment, the Employee will not,
without having received prior written permission of the Company's Board of
Directors to do so, directly or indirectly, on his own behalf of in the service
of others, interfere with or raid the officers, employees, consultants, agents
and/or independent contractors of the Company or in any manner attempt to
persuade any such person to discontinue any relationship with the Company. The
Employee and the Company confirm that this Paragraph 7 is reasonable and
necessary for the protection of the trade secrets and proprietary information of
the Company.
8. Arbitration. Except as otherwise expressly provided in this
Agreement, any and all controversies, disputes and/or claims in any manner
arising out of or relating to this Agreement or the Employment shall be settled
solely by arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. Such arbitration proceeding shall take place
in the state and county of the Company's office where the Employee is based.
Judgment on any decision rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Each party shall bear its own attorneys' fees and
expenses and other costs in any arbitration proceeding. All administrative fees
and the fee of the arbitrator shall be borne by the parties equally. Except as
otherwise expressly provided in this Agreement, the arbitration provisions set
forth above in this Paragraph 8 are intended by the Employee and by the Company
to be absolutely exclusive for all purposes whatsoever and applicable to each
and every controversy, dispute and/or claim in any manner arising out of or
relating to this Agreement, and the Employment, the meaning, application and/or
interpretation of this Agreement, any breach or claimed breach thereof and/or
any voluntary or involuntary termination of this Agreement with or without
cause, including, without limitation, any such controversy, dispute and/or claim
which, if pursued through any state or federal court or administrative agency,
would arise at law, in equity and/or pursuant to statutory, regulatory and/or
common law rules, regardless of whether such dispute, controversy and/or claim
would arise in and/or from contract, tort or any other legal and/or equitable
theory or basis. Notwithstanding anything to the contrary contained in this
Paragraph 8, the Company shall at all times have and retain the full, complete
and unrestricted right to immediate and permanent injunctive and other relief as
provided in Paragraph 9 below.
9. The Company's Right to Immediate Injunctive Relief. The Employee
recognizes, acknowledges and agrees that any breach or any threatened breach of
any Paragraph, term, provision or covenant of any of Paragraphs 1.4, 5, 6, 7 or
8 of this Agreement or of the Proprietary Information and Inventions Agreement
would cause irreparable injury to the Company which could not be adequately
compensable in monetary damages and that the remedy at law for any such breach
will be entirely insufficient and inadequate to protect the Company's legitimate
interests. Therefore, the Employee specifically recognizes, acknowledges and
agrees that the Company shall at any and all times be and remain fully entitled
to seek and obtain immediate temporary, preliminary and permanent injunctive
relief for any such breach or threatened breach from any court of competent
jurisdiction. The prevailing party in any action instituted pursuant to this
Paragraph 8 shall be entitled to recover from the other party its reasonable
attorneys' fees and other expenses incurred in such litigation.
10. Survival of Certain Provisions of this Agreement. Except as may
otherwise be provided herein, each and all of the terms, provisions and
covenants of each of Paragraphs 1.4, 6,
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7, 8, 9, 10 and 11 of this Agreement shall, for any and all purposes whatsoever,
survive any termination of the Employment, regardless of whether such
termination is by the Employee, by the Company, by expiration or otherwise.
11. General.
11.1 Successors and Assigns. The provisions of this Agreement
shall inure to the benefit of and be binding upon the Company, the Employee and
each and all of their respective heirs, legal representatives, successors and
assigns. The duties, responsibilities and obligations of the Employee under this
Agreement shall be personal and not assignable or delegable by the Employee in
any manner whatsoever to any person, corporation, partnership, firm, company,
joint venture or other entity. The Employee may not assign, transfer, convey,
mortgage, pledge or in any other manner encumber the compensation or other
benefits to be received by him or any rights which he may have pursuant to the
terms and provisions of this Agreement.
11.2 Waiver. No waiver of any breach of any warranty,
representation, agreement, promise, covenant, paragraph, term or provision of
this Agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other warranty, representation, agreement, promise,
covenant, paragraph, term and/or provision of this Agreement. No extension of
the time for the performance of any obligation or other act required or
permitted by this Agreement shall be deemed to be an extension of the time for
the performance of any other obligation or any other act required or permitted
by this Agreement.
11.3 Sole and Entire Agreement. This Agreement, and the other
agreements referred to herein, including the Company's benefit plans, are the
sole, complete and entire contract, agreement and understanding between the
Company and the Employee concerning the Employment, the terms and conditions of
the Employment, the duration of the Employment, the termination of the
Employment and the compensation and benefits to be paid and provided by the
Company to the Employee pursuant to the Employment. Except as otherwise provided
herein, this Agreement supersedes any and all prior contracts, agreements,
plans, agreements in principle, correspondence, letters of intent,
understandings, and negotiations, whether oral or written, concerning the
Employment, the terms and conditions of the Employment, the duration of the
Employment, the termination of the Employment and the compensation and benefits
to be paid by the Company to the Employee pursuant to the Employment.
11.4 Amendments. No amendment, modification, waiver, or consent
relating to this Agreement will be effective unless and until it is embodied in
a written document signed by the Company and by the Employee.
11.5 Originals. This Agreement may be executed by the Company and
by the Employee in counterparts, each of which shall be deemed an original and
which together shall constitute one instrument.
11.6 Headings. Each and all of the headings contained in this
Agreement are for reference purposes only and shall not in any manner whatsoever
affect the construction or
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interpretation of this Agreement or be deemed a part of this Agreement for any
purpose whatsoever.
11.7 Savings Provision. To the extent that any provision of this
Agreement or any Paragraph, term, provision, sentence, phrase, clause or word of
this Agreement shall be found to be illegal or unenforceable for any reason,
such Paragraph, term, provision, sentence, phrase, clause or word shall be
modified or deleted in such a manner as to make this Agreement, as so modified,
legal and enforceable under applicable laws. The remainder of this Agreement
shall continue in full force and effect.
11.8 Applicable Law. This Agreement and each and every provision
of this Agreement shall be interpreted solely pursuant to the internal laws of
the State of California without regard to any conflicts of law principles
thereof.
11.9 Construction. The language of this Agreement and of each and
every paragraph, term and provision of this Agreement shall, in all cases, for
any and all purposes, and in any and all circumstances whatsoever be construed
as a whole, according to its fair meaning, not strictly for or against the
Employee or the Company, and with no regard whatsoever to the identity or status
of any person or persons who drafted all or any portion of this Agreement.
11.10 Notices. Any notices to be given pursuant to this Agreement
by either party to the other party may be effected by personal delivery or by
registered or certified mail, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses stated below,
but each party may change its or his address by written notice to the other in
accordance with this Paragraph 10.10. Notices delivered personally shall be
deemed received on the date of delivery. Notices delivered by mail shall be
deemed received on the third business day after the mailing thereof.
Mailed notices to the Employee shall be addressed as follows:
Xxxxxxx X. Xxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx
Mailed notices to the Company shall be addressed as follows:
Raytel Medical Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: President
IN WITNESS WHEREOF, the Company and the Employee have each duly executed
this Agreement as of the date first set forth above.
RAYTEL MEDICAL CORPORATION THE EMPLOYEE
By:_____________________________ ___________________________________
Xxxxxxx X. Xxxxx
Its:____________________________
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