AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.2
AMENDED
AND RESTATED
THIS
AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into on December 17, 2007
(the
“Effective Date”), by I-TRAX, INC., a Delaware corporation with
its principal business offices located at 0 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000 (the “Company”), and XXXXX X. XXXXXX,
an individual residing at 000 Xxxx Xxxxxx Xxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx
00000 (“Executive”).
I-trax
Health Management Solutions,
Inc. (f/k/a X-xxxx.xxx, Inc.) is a subsidiary of the Company and a party to
an
Employment Agreement with the Executive effective as of December 29, 2000 (the
“Original Agreement”). The Company had executed a
Joinder to the Original Agreement to guaranty and to act as a surety for the
performance by I-trax Health Management Solutions, Inc. (f/k/a X-xxxx.xxx,
Inc.)
under the Original Agreement. The initial term of the Original
Agreement began on December 29, 2000 and ended on December 29, 2003 (the
“Original Term”). Since December 29, 2003, the
Original Agreement has been renewing automatically for successive additional
terms of one year each (each, an “Additional
Term”). The parties now wish to amend and restate the
Original Agreement in the form of this Agreement.
In
consideration of the mutual
covenants and premises contained herein, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged
by
the parties hereto, the parties agree as follows:
1. Term
of Employment. As of the Effective Date and upon the terms set
forth in this Agreement, the term of Executive’s employment will extend until
terminated in accordance with the provisions of Section 4 below (the
“Extended Term,” and together with the Original Term and each
Additional Term, the “Term”).
2. Title
and Capacity. Executive will shall serve as the Chairman of the
Board of Directors of the Company and shall perform the duties commensurate
with
this position and such other duties as the Company’s Board of Directors (the
“Board”) may determine. Executive shall devote as
much time as necessary to performing the above duties.
3. Salary;
Benefits.
3.1 Salary. On
the Effective Date, the Company is paying Executive an annual base salary of
$286,057.00 (such salary, as adjusted from time to time, the “Base
Salary”). The Compensation Committee of the Board (the
“Compensation Committee”) will complete an annual review of
Executive’s performance and will, based upon the results of such review,
increase the Base Salary for any subsequent year of the Term. In
addition, the Company will pay Executive a bonus for each complete or partial
fiscal year during the Term (the “Bonus”). The Bonus
will be determined by the Compensation Committee upon consultation with
Executive.
3.2 Payment
in Installments. The Company will pay Executive the Base Salary
in periodic installments in accordance with the Company’s general payroll
practices, after withholding for all Federal, state and local taxes and other
required deductions. The Company will pay the Bonus within 90 days of
the end of the end of each calendar year.
3.3 [INTENTIONALLY
OMITTED]
3.4 Benefits. Provided
Executive meets and continues to meet the full-time and any and all other
eligibility requirements set forth in the Company’s Employee Manual and in the
applicable benefits plans sponsored by the Company, the Company will make
available to Executive fringe benefits, retirement, health and welfare benefits
plans, policies and arrangement as are in effect from time to time and made
available to senior executives officers of the Company, subject to employee
cost
sharing provisions and other provisions of such benefits and benefit plans
(collectively, the “Benefits”). Notwithstanding the
preceding, the Company may change, modify, amend, eliminate, or terminate the
Benefits or change the employee cost sharing provisions applicable to the
Benefits, and if the Company does so, thereafter Executive will be entitled
only
to then available standard full-time employee Benefits made available to other
senior executive officers of the Company.
3.5 Paid
Time Off. Executive is entitled to 25 paid time off days per year
in accordance with the Company’s Executive PTO policy, as amended from time to
time.
3.6 Reimbursement
of Expenses.
(a) The
Company will reimburse Executive for all reasonable travel, entertainment and
other expenses incurred or paid by Executive in connection with, or related
to,
the performance of his duties under this Agreement in accordance with the Travel
and Expense Policy published by the Company’s Finance Department, as amended
from time to time.
(b) The
benefits and reimbursements made pursuant to Section 3.6(a) are subject to
the
following restrictions: (1) the amount of benefits provided or expenses eligible
for reimbursement during any calendar year will not affect the benefits provided
or expenses eligible for reimbursement during any other calendar year; and
(2)
the Company will reimburse an eligible expense as soon as practicable after
Executive requests such reimbursement, but not later than the December 31
following the calendar year in which the expense was incurred.
4. Employment
Termination. The employment of Executive by the Company pursuant
to this Agreement shall terminate upon the occurrence of any of the
following:
4.1 Cause. At
the election of the Company, for “cause,” immediately upon written notice by the
Company to Executive. “Cause” for termination shall
be deemed to exist by reason of (a) any action by Executive resulting in
the conviction of Executive of, or the entry
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of
a plea
of guilty or nolo contendere by Executive to, any crime involving moral
turpitude, any felony, or any misdemeanor involving misconduct or fraud in
business activities, (b) any breach of a fiduciary duty involving personal
profit, (c) Executive's willful failure to perform his duties hereunder,
(d) Executive's willful misconduct, recklessness or gross negligence in the
performance of his duties hereunder, (e) any action by Executive that
violates Section 6 below, (f) repeated refusals by Executive to comply with
the reasonable directives of the Board; provided, however, that
the Company may terminate Executive's employment pursuant to Subsections 4.1(c),
(e) or (f) above only after the failure by Executive to correct or cure, or
to
commence and continue to pursue the correction or curing of, such refusals
within ten days after receipt by Executive of written notice of the Board of
each specific claim of any such refusal and to complete such correction or
cure
within 45 days after receipt of such notice.
4.2 Without
Cause. At the election of the Company, at any time, upon 30 days
written notice for any reason whatsoever other than for cause.
4.3 Death
or Disability. Upon Executive’s death or 30 days after
Disability. “Disability” or
“Disabled” means Executive is unable, due to a physical
or
mental disability, to perform the duties contemplated under this Agreement
for a
period of three consecutive months or for a cumulative period of four months
within any six consecutive months. A physician satisfactory to
Executive and the Company will determine if Executive is disabled. If
Executive and the Company cannot agree on a physician within 30 days of either
party’s written notice to the other, Executive and the Company will each select
a physician, who will together select a third physician. The
determination of the physician(s) as to Disability will be binding on all
parties.
4.4 Termination
by Executive. At the election of Executive: (a) at any time if
his health should become impaired to an extent that makes the continued
performance of his duties hereunder hazardous to his physical or mental health
or his life, as certified by a physician designated by Executive and reasonably
acceptable to the Company; (b) for “good reason” upon delivery of written
notice of such “good reason” to the Company; or (c) upon giving ninety (90)
days written notice of termination, which termination shall be deemed a breach
by Executive of his obligations under this Agreement. “Good
reason” means (i) the failure by the Company to continue Executive in
the position of Chairman of the Board (or such other senior executive position
as may be offered by the Company and which Executive may in his sole discretion
accept); (ii) material diminution by the Board of Executive’s responsibilities,
duties or authority as Chairman of the Board (or such other senior executive
position as may be offered by the Company and which Executive may in his sole
discretion accept) or assignment to Executive of any duties inconsistent with
Executive’s position as Chairman of the Board (or such other senior executive
position as may be offered by the Company and which Executive may in his sole
discretion accept); (iii) failure by the Company to pay and provide to Executive
the compensation provided in Section 3.1 above, which failure is not cured
within thirty (30) days after written notice of such failure is delivered by
Executive to the Company; (iv) requiring Executive to be permanently based
anywhere other than within 25 miles of the Company’s present office location in
Chadds Ford, Pennsylvania (excluding business related travel); (v) a “Change in
Control,” as
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such
term
is defined in the Company’s 2001 Equity Compensation Plan; or (vi) any other
material breach of this Agreement by the Company, which breach is not cured
within thirty (30) days after written notice of such breach is delivered by
Executive to the Company.
5. Effect
of Termination.
5.1 Termination
for Cause. If the Company terminates Executive’s employment for
cause under Section 4.1, the Company will pay to Executive the Base Salary,
Bonus and Benefits otherwise payable to Executive under Sections 3.1, 3.2
and 3.4, pro rata through the last day of Executive’s actual
employment by the Company.
5.2 Termination
Without Cause.
(a) If
at any time during the Term (i) the Company terminates Executive’s employment
under Section 4.2 for any reason other than for cause, or (ii) Executive dies
or
is Disabled while on the Company’s business or as a result of Executive’s
performance of his duties under this Agreement, the Company will pay to
Executive or his estate, as applicable, (1) severance equal to 24 months of
base
salary then applicable under Section 3.1, (2) an amount equal to two times
the
average, and if necessary annualized, Bonus paid to Executive for the most
recent two years of the Term, and (3) an amount approximately equal to the
amount Executive would be required to pay to maintain full-time health benefits
under COBRA while receiving severance.
(b) Executive
acknowledges that if Executive’s employment is terminated pursuant to Section
4.2, (1) the payments under Section 5.2(a) represent the total obligation of
the
Company to Executive under this Agreement. Further, Executive is not
required to mitigate damages to receive the payments set forth in Section
5.2(a).
5.3 Termination
for Death or Disability. If Executive’s employment is terminated
by death or because of Disability under Section 4.3 other than as provided
in
Section 5.2(a), the Company will pay to the estate of Executive or to Executive,
as applicable, the Base Salary and benefits otherwise payable to Executive
under
Sections 3.1, 3.2 and 3.4 above through the end of the month in which
termination of Executive’s employment because of death or Disability
occurs.
5.4 Termination
by Executive.
(a) If
Executive terminates Executive’s employment under Section 4.4(a) for reasons of
health, the Company will pay to Executive the Base Salary, Bonus and Benefits
otherwise payable to Executive under Sections 3.1, 3.2 and 3.4 pro rata
through the date of termination.
(b) If
Executive terminates Executive’s employment under Section 4.4(b) for good reason
at any time during the Term, the Company will pay to Executive (1)
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severance
equal to 24 months of base salary then applicable under Section 3.1, (2) an
amount equal to two times the average, and if necessary annualized, Bonus paid
to Executive for the most recent two years of the Term, and (3) an amount
approximately equal to the amount Executive would be required to pay to maintain
full-time health benefits under COBRA while receiving severance.
(c) Executive
acknowledges that if Executive’s employment is terminated pursuant to Section
4.4(b), the payments under Section 5.4(b), represent the total obligation of
the
Company to Executive under this Agreement. Further, Executive is not
required to mitigate damages to receive the payments set forth in Section
5.4(b).
(d) If
Executive terminates Executive’s employment under Section 4.4(c), the Company
will pay to Executive the Base Salary, Bonus and Benefits otherwise payable
to
him under Sections 3.1, 3.2 and 3.4 pro rata through the last day of
his actual employment by the Company.
5.5 Severance
Payments Terms. The Company will pay the severance benefits under
this Section 5 to Executive in substantially equal periodic installments in
accordance with the Company’s general payroll practices, beginning on the first
payroll date following the date of Executive’s termination of employment and
ending when the applicable severance period under Section 5
ends. Notwithstanding the foregoing, if Executive is a “specified
employee” within the meaning of Section 409A(2)(B)(i) of the Internal Revenue
Code (“Code”), the Company will not pay severance upon
Executive’s termination of employment pursuant to Section 5 (other than by
reason of Executive’s death), during the first six months following Executive’s
termination date and all payments that would have otherwise been made during
that period will be paid to Executive on the first payroll date following the
expiration of six full months following Executive’s termination
date.
6. Non-Competition;
Non-solicitation; Confidentiality.
6.1 Non-Competition. During
the Term and during the Post Termination Non-Competition Period (as defined
below) after the termination of the Term, Executive will not, including through
an Affiliate (as defined in Rule 12b-2 promulgated pursuant to the Securities
Exchange Act of 1934, as amended), engage in the health care management business
in which the Company or its Affiliates are engaged in at any time during the
Term (the “Business”) in the United States. Each of
the following activities, without limitation, are deemed to constitute engaged
in the Business: engaging in, working with, maintaining an interest
in (other than interests of less than 3% in companies with securities traded
either on the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Nasdaq SmallCap Market or traded over-the-counter and
quoted on the Bulletin Board), advising for a fee or other consideration,
managing, operating, lending money to (other than loans by commercial banks),
guaranteeing the debts or obligations of, or permitting one’s name or any part
thereof to be used in connection with an enterprise or endeavor, either
individually, in partnership or in conjunction with any individual, partnership,
corporation, limited liability company, association, joint stock
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company,
trust, joint venture or any other form of business organization, unincorporated
organization or governmental entity (or any department, agency or subdivision
thereof) (each, a “Person”), whether as principal, director,
agent, shareholder, partner, employee, consultant, independent contractor or
in
any other manner whatsoever, any Person in the
Business. “Post Termination Non-Competition Period”
means the longer of one year and the period during which Executive is receiving
severance under this Agreement.
6.2 Non-Solicitation. During
the Term and during the Post Termination Non-Solicitation Period (as defined
below) after the termination of the Term, Executive will not, directly or
indirectly, and no Person (including an Affiliate) over which Executive
exercises control (whether as an officer, director, individual proprietor,
holder of debt or equity securities, consultant, partner, member or otherwise)
(a) solicit or engage or employ or otherwise enter into any agreement or
understanding, written or oral, relating to the services of any Person who
is
known or should be known by Executive to be then employed or to have been
employed within the preceding six months by the Company or its Affiliates,
(b)
take any action which could be reasonably expected to lead any Person to cease
to deal with the Company or its Affiliates or (c) solicit the business of,
enter into any written or oral agreement with or otherwise deal with any
supplier of goods, products, materials or services in competition with the
Company or its Affiliates or solicit the business of customers of the Company
or
its Affiliates who were such at any time during the two-year period preceding
Executive’s last date of employment, except on behalf of businesses in which
such party would then be permitted to engage directly without violating this
Section 6. “Post Termination Non-Solicitation
Period” means the longer of one year and the period during which
Executive is receiving severance under this Agreement.
6.3 Confidentiality. During
the Term and for a period of five years after the termination of the Term,
Executive will treat as trade secrets all Confidential Information (as defined
below) known or acquired by Executive in the course of any affiliation Executive
has with the Company or its Affiliates and will not disclose any Confidential
Information to any Person not affiliated with the Company except as authorized
in writing by the Company. “Confidential
Information” means any information relating to the relationship of the
Company or its Affiliates to their customers (including, without limitation,
the
identity of any customer), the research, design, development, manufacturing,
marketing, pricing, costs, capabilities, capacities and business plans related
to the Business, the financing arrangements of the Company, or the financial
condition or prospects of the Company; inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
software, including source code, object code, operating systems, bridgeware,
firmware, middleware or utilities and customer and supplier lists and any other
confidential information relating to the assets, condition or business of the
Company or its Affiliates. Notwithstanding the foregoing, Executive
will have no obligation with respect to (a) information disclosed to
Executive by a Person who does not owe a duty of confidentiality to the Company
or its Affiliates; or (b) information which is in the public domain and is
readily available; or (c) information where disclosure is required by law
or is necessary in connection with a claim, dispute or litigation to which
Executive is or becomes a party and the Company is given ten business days
prior
written notice of the intent to make disclosure.
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6.4 Injunctive
Relief. The restrictions contained in this Section 6 are
necessary for the protection of the business and goodwill of the Company and
are
considered by Executive to be reasonable for such purpose. Executive
acknowledges and agrees that a breach or threatened breach by Executive of
the
covenants contained in this Section 6 would cause the Company irreparable harm
and that the extent of damages to the Company would be impossible to ascertain
and that there is and will be available to the Company no adequate monetary
damages or other remedy at law to compensate it in the event of any such
breach. Consequently, Executive agrees that, in the event of a breach
of any such covenant, in addition to any other relief to which the Company
is or
may be entitled, the Company shall be entitled, as a matter of course, to an
injunction or other equitable relief, including the remedy of specific
performance, to enforce any or all of such covenants by Executive, his or her
employer, employees, partners, agents or any of them.
6.5 Modification
of Covenants. In the event it shall be determined by any
arbitrator, court or governmental agency or authority that any provision of
Section 6 is invalid by reason of the length of any period of time or the size
of any area during or in which such provision is effective, such period of
time
or area shall be considered to be reduced to the extent required to cure such
invalidity.
6.6 Extension
of Covenant. In the event that there should be a violation of the
restrictions contained in Section 6.1, the duration of such restriction shall
be
extended for a period of time equal to the period of time during which such
breach or breaches shall occur.
6.7 Counter-claims. The
existence of any claim or cause of action by Executive against Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the
enforcement by the Company of the restrictions contained in this Section 6
above, but shall be litigated separately including, without limitation, any
claim by Executive that Executive has not been terminated for cause pursuant
to
Section 4.1 above, unless the claim and defense arise out of the same event
and
joinder would be required.
7. Inventions,
Patents and Intellectual Property.
7.1 Executive
agrees that all inventions, discoveries, computer programs, data, software,
technology, designs, innovations and improvements (whether or not patentable
and
whether or not copyrightable) (individually, an “Invention,”
and collectively, “Inventions”) related to the business of the
Company which are made, conceived, reduced to practice, created, written,
designed or developed by Executive, solely or jointly with others and whether
during normal business hours or otherwise, during the term of Executive’s
employment by the Company or thereafter if resulting or directly derived from
Confidential Information, shall be the sole property of the
Company. Executive hereby assigns to the Company all Inventions and
any and all related patents, copyrights, trademarks, trade names, and other
industrial and intellectual
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property
rights and applications therefor, in the United States and elsewhere and
appoints any officer of the Company as his duly authorized attorney to execute,
file, prosecute and protect the same before any government agency, court or
authority. Upon the request of the Company and at the Company's
expense, the Executive shall execute such further assignments, documents and
other instruments as may be necessary or desirable to fully and completely
assign all Inventions to the Company and to assist the Company in applying
for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Invention.
7.2 Executive
shall promptly disclose to the Company all Inventions and will maintain adequate
and current written records (in the form of notes, sketches, drawings and as
may
be specified by the Company) to document the conception and/or first actual
reduction to practice of any Invention. Such written records shall be
available to and remain the sole property of the Company at all
times.
8. Return
of Confidential Information. Executive agrees that all files,
letters, memoranda, reports, records, data, sketches, drawings, laboratory
notebooks, program listings or other written, photographic or other tangible
material, in each event, containing Confidential Information, whether created
by
Executive or others, which shall come into his custody or possession, shall
be
and are the exclusive property of the Company to be used by Executive only
in
the performance of his duties for the Company.
9. Cooperation. At
any time during the term of this Agreement or thereafter, Executive shall
reasonably cooperate with the Company in any litigation or administrative
proceedings involving any matters with which Executive was involved during
his
employment by the Company. The Company shall reimburse Executive for
reasonable expenses, if any, incurred in providing such assistance.
10. Notices. All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing, and may be given by a party hereto by (a)
personal service (effective upon delivery), (b) mailed by registered or
certified mail, return receipt requested, postage prepaid (effective five
business days after dispatch), (c) reputable overnight delivery service,
charges prepaid (effective the next business day) or (d) telecopy or other
means of electronic transmission (effective upon receipt of the telecopy or
other electronic transmission in complete, readable form), if confirmed promptly
by any of the methods specified in clauses subparagraphs (a)-(c) of this Section
10, to the other party at the address shown above, or at such other address
or
addresses as either party shall designate to the other in accordance with this
Section 10.
11. Non-Disparagement. During
the term of Executive’s employment hereunder and for five years thereafter,
Executive shall not disparage, deprecate, or make any negative comment with
respect to the Company or its Affiliates or their respective businesses,
operations, or properties.
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12. Pronouns. Whenever
the context may require, any pronouns used in this Agreement shall include
the
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural and vice versa.
13. Entire
Agreement. This Agreement and such other agreements, schedules
and exhibits as are referenced therein or herein, constitute the entire
agreement between the parties and supersede all prior agreements and
understandings, whether written or oral, relating to the subject matter of
this
Agreement.
14. Amendment. This
Agreement may be amended or modified only by a written instrument executed
by
both the Company and Executive.
15. Governing
Law; Consent to Jurisdiction.
15.1 This
Agreement shall be construed, interpreted and enforced in accordance with the
laws of the State of Delaware, notwithstanding any contrary application of
conflicts of laws principles.
15.2 Each
party hereto consents to the jurisdiction of all Federal and State courts
located in the Commonwealth of Pennsylvania which have jurisdiction over any
disputes arising under this Agreement and agrees that service of process in
any
action or proceeding commenced in a court located in the Commonwealth of
Pennsylvania may be made by written notice as provided in Section 10
hereof.
16. Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be merged
or
which may succeed to its assets or business; provided, however,
that the obligations of Executive are personal and shall not be assigned by
him.
17. Miscellaneous.
17.1
No delay or omission by the Company in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in
that
instance and shall not be construed as a bar or waiver or any right on any
other
occasion.
17.2
The captions of the sections of this Agreement are for convenience of reference
only and in no way define, limit or affect the scope or substance of any section
of this Agreement.
17.3 In
case any provision of this Agreement shall be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the day and year set forth above.
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COMPANY:
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I-TRAX,
INC.
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
Xxxx Xxxxxxxxx
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Title:
Senior Vice President
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Attest:
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/s/
Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Assistant Secretary
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EXECUTIVE:
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Witness:
/s/ Xxxx Xxxxxx
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/s/
Xxxxx X. Xxxxxx
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