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EXHIBIT 10.090
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of August 30,
1999, between E*XX.XXX, a Georgia corporation (the "Company"), and XXXXXX XXX
XXXXXX (the "Executive").
1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. Term.
(a) The "Initial Term" of the employment of the Executive
by the Company as provided in Section 1 will commence on September 14,
1999 (the "Effective Date") and will terminate at 11:59 p.m. on
September 14, 2003 (the "Expiration Date") unless extended or sooner
terminated as hereinafter provided (such period, the "Employment
Period").
(b) The "Employment Period" may be extended beyond the
Initial Term by the mutual agreement of the parties in writing (the
"Extended Term").
(c) The "Business" of the Company shall be medical
internet, online pharmacy and information services.
3. Position, Duties and Responsibilities.
(a) Position. The Executive hereby agrees to serve as
Executive Vice President of Provider Sales and Development.
(b) Place of Employment. During the term of this
Agreement, the Company's headquarters shall be located in the Atlanta,
Georgia area.
(c) Other Activities. Except with the prior written
approval of the Board of Directors of the Company (the "Board") (which
the Board may grant or withhold in its sole and absolute discretion),
the Executive, during the Employment Period, will not (i) accept any
other employment, or (ii) engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary advantage) that
is or may be competitive with or that might place him in a competing
position to, that of the Company or any of its affiliates.
Notwithstanding the foregoing, the Company agrees that the Executive
(or affiliates of the Executive) shall be permitted: (i) to make any
passive personal investments that are not in a business activity that
is directly or indirectly competitive with the Company (ii) to
participate in industry organizations, (iii) with the consent of the
Board of Directors of the
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Company, to be a member of Boards of Directors of other entities which
do not directly compete with the Company, and (iv) to participate in
charitable or educational activities.
4. Compensation and Related Matters.
(a) Salary and Bonus. During the Employment Period, the
Company shall pay the Executive a salary of ONE HUNDRED TWENTY-FIVE
THOUSAND AND NO/100TH DOLLARS ($125,000.00) annually (the "Salary").
The Executive shall also be eligible for bonuses, such bonuses to be
awarded up to 100% of the Executive's salary in the event the Executive
exceeds her goals and objectives defined by the Board of Directors
and/or President/Chief Executive Officer. All Salary and bonuses to be
paid consistent with the standard payroll practices of the Company
(e.g., timing of payments and standard employee deductions, such as
income tax withholdings, social security, etc.).
(b) Stock Options. In addition to the Salary, the
Executive shall be entitled to stock options in accordance with the
terms and conditions set forth in a stock option agreement, a copy of
which is attached hereto as Exhibit A.
(c) Vacation. During the Employment Period Executive
shall be entitled to four weeks (20 days) of vacation during each
calendar year (non-cumulative).
(d) Business Expenses. The Company will reimburse the
Executive for reasonable bona fide business expenses incurred on behalf
of the Company in the ordinary course of business, provided, however,
that the expense is otherwise deductible by the Company as an ordinary
and necessary business expense for federal income tax purposes.
(e) Other Benefits. The Executive shall generally be
entitled to participate in or receive health, long-term disability
insurance, and similar benefits as the Company provides from time to
time to its executives. The Executive shall cooperate with the issuance
of a key man term life insurance policy for the benefit of the Company,
if so requested by the Company.
5. Termination or Resignation.
(a) Termination. The Executive's employment hereunder
shall be, or may be, as the case may be, terminated and shall
constitute a "Termination" under the following circumstances:
(i) Death. The Executive's employment hereunder
shall terminate upon his death.
(ii) Disability. The Executive's employment
hereunder shall terminate on the Executive's physical or
mental disability or infirmity which, in the opinion of a
competent physician selected by the Board, renders the
Executive unable to perform his duties under this Agreement
for more than 30 days during any 120-day period.
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(iii) With Cause. The Company may terminate the
Executive's employment hereunder for Cause. "Cause" shall mean
(i) Employee's material breach of any of the terms of this
Agreement, (ii) his conviction of a crime involving moral
turpitude or constituting a felony under the laws of any
state, the District of Columbia or of the United States, (iii)
his gross negligence, willful misconduct or fraud in the
performance of his duties hereunder; (iv) his repeated failure
or refusal to follow the directives of the Board; or (v)
inappropriate business conduct that is directly related to
Executive's activities on behalf of the Company that may cause
harm to the business interests of the Company.
(iv) Without Cause. The Company may terminate the
Executive's employment hereunder at any time without cause.
(b) Termination by Company. Any termination of the
Executive's employment by the Company shall be communicated by written
Notice of Termination to the Executive. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice that shall indicate the
specific termination provision in this Agreement relied upon and shall
set forth, if applicable, in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. "Date of
Termination" shall mean (i) if the Executive's employment is terminated
by his death, the date of his death, (ii) if the Executive's employment
is terminated by reason of his disability, the date of the opinion of
the physician referred to in Section 5(a)(ii), above, (iii) if the
Executive's employment is terminated by the Company for Cause pursuant
to subsection 5(a)(iii) above or without Cause pursuant to subsection
5(a)(iv) above, the date specified in the Notice of Termination and
(iv) if the Executive voluntarily resigns pursuant to subsection 5(c)
above, the date of the Notice of Resignation.
(c) Termination by Executive for Any Reason. In addition
to the provisions of Section 2(c) hereof, notwithstanding the Term of
this Agreement and the Salary to be paid to the Executive during the
Employment Period, the Executive may voluntarily resign his position
and terminate his employment and Salary with the Company at any time,
with or without cause, by delivery of a written notice of resignation
to the Company (the "Notice of Resignation"). The Notice of Resignation
shall set forth the date such resignation shall become effective (the
"Date of Resignation"), which date shall, in any event, be at least
thirty (30) days and no more than sixty (60) days from the date the
Notice of Resignation is delivered to the Company. At its option, the
Company may reduce such notice period to any length, upon written
notice to the Executive.
(d) Termination by Company/Employment-At-Will.
Notwithstanding the Term of this Agreement and the annual salary to be
paid to the Executive during his employment with the Company, nothing
in this Agreement should be construed as to confer any right of the
Executive to be employed by the Company for a fixed or definite term.
Subject to Section 6 hereof, the Executive hereby agrees that the
Company may dismiss him under subsection 5(a)(iv) hereof without regard
(i) to any general or specific policies (whether written or oral) of
the Company relating to the employment or
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termination of its employees, or (ii) to any statements made to the
Executive, whether made orally or contained in any document, pertaining
to the Executive's relationship with the Company. The Executive's
employment with the Company is at will and may be terminated by the
Company at any time by delivery of a Notice of Termination to the
Executive, for any reason, with or without cause, without liability
except with respect to the payments provided for by Section 6(d).
(e) Termination Obligations. In exchange for the Company
entering into the Agreement and payment of the Severance Payments
provided for in Sections 6(b) and 6(d) herein, the Executive agrees
that, at the time of his resignation or termination from the Company:
(i) The Executive will promptly return to the
Company all personal property, both tangible and intangible,
furnished to or prepared by the Executive in the course of or
incident to his employment, the Executive hereby acknowledging
and agreeing that such property belongs to the Company, such
that following termination the Executive will not retain any
written or other tangible material containing any proprietary
information of the Company. "Personal property" includes,
without limitation, all computers, cellular phones, company
credit cards, access keys, books, manuals, records, reports,
notes, contracts, lists and other documents or materials, or
copies thereof (including computer files), and all other
proprietary information relating to the business of the
Company.
(ii) The Executive will tender his resignation
from all offices and directorships then held with the Company.
(iii) The Executive will execute a release
acceptable to the Company of all liability of the Company, and
its directors, officers, shareholders, employees, agents and
attorneys, to the Executive in connection with or arising out
of his employment with the Company, except with respect to any
Severance Payments under Sections 6(b) or 6(d) which may be
payable to him under the terms of the Agreement.
(iv) The representations and warranties contained
herein and the Executive's obligations under Sections 5(e), 7,
8, 9 and 15 through 18 shall survive termination of the
Employment Period and the expiration of this Agreement.
6. Compensation Upon Termination. Upon the occurrence of any of
the events described Section 5(a) through 5(d) of this Agreement, the Executive
shall be entitled, unless otherwise provided herein, to the following
remuneration in respect of such Termination (the "Severance Payments") for the
period of time specified therein (the "Severance Period"):
(a) Death. If the Executive's employment shall be
terminated pursuant to Section 5(a)(i), the Company shall pay the
Executive's personal representative his Salary payable pursuant to
Section 4(a) through the Date of Termination. At the Executive's own
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expense, the Executive's dependents shall also be entitled to any
continuation of health insurance coverage rights under any applicable
law.
(b) Disability. If the Executive's employment shall be
terminated by reason of disability pursuant to Section 5(a)(ii), the
Executive shall receive his Salary payable pursuant to Section 4(a) up
to the Date of Termination and for 30 days thereafter; provided that
payments so made to the Executive during the disability shall be
reduced by the sum of the amounts, if any, payable to the Executive at
or prior to the time of any such payment under any disability benefit
plan of the Company. At the Executive's own expense, the Executive and
his dependents shall also be entitled to any continuation of health
insurance coverage rights under any applicable law.
(c) Cause. If the Executive's employment shall be
terminated for Cause pursuant to Section 5(a)(iii) hereof, the Company
shall pay the Executive his Salary the payable pursuant to Section 4(a)
through the Date of Termination. At the Executive's own expense, the
Executive and his dependents shall also be entitled to any continuation
of health insurance coverage rights under any applicable law.
(d) Voluntary Resignation. If the Executive terminates
his employment with the Company pursuant to Section 5(c) hereof, the
Company shall have no obligation to compensate the Executive following
the Date of Resignation, except for the payment of accrued and unpaid
salary pursuant to Section 4(a) through the Date of Resignation. In any
event, at the Executive's own expense, the Executive and his dependents
shall be entitled to any continuation of health insurance coverage
rights under any applicable law.
(e) Termination Without Cause by Company. If the Company
terminates Executive's employment with the Company pursuant to Sections
5(a)(iv) and 5(d) hereof, the Company shall pay to Executive all salary
payable pursuant to Section 4(a), as Severance Payments through a
period ending on the earlier of (i) three (3) months following the Date
of Termination, or (ii) the expiration of the Employment Period. The
Company shall have no other obligation to compensate the Executive
following the Date of Termination. In any event, at the Executive's own
expense, the Executive and his dependents shall be entitled to any
continuation of health insurance coverage rights under any applicable
law.
(f) Any Severance Payments made pursuant to this Section
6 shall be payable following the Date of Termination in accordance with
the Company's regular payroll practices. The obligation of the Company
to make the Severance Payments to the Executive is expressly
conditioned upon the Executive complying and continuing to comply with
his obligations and covenants under Sections 5(e), 7 and 8 of this
Agreement following termination of his employment with the Company.
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7. Confidentiality and Non-Solicitation Covenants.
(a) Confidentiality. In addition to the agreements set
forth in Section 5(e), the Executive hereby agrees that the Executive
will not, during the Employment Period or at any time thereafter
directly or indirectly disclose or make available to any person, firm,
corporation, association or other entity for any reason or purpose
whatsoever, any Confidential Information (as defined below). The
Executive agrees that, upon Termination of his employment with the
Company, all Confidential Information in his possession that is in
written or other tangible form (together with all copies or duplicates
thereof, including computer files) shall be returned to the Company and
shall not be retained by the Executive or furnished to any third party,
in any form except as provided herein; provided, however, that the
Executive shall not be obligated to treat as confidential, or return to
the Company copies of any Confidential Information that (i) was
publicly known at the time of disclosure to the Executive, (ii) becomes
publicly known or available thereafter, but prior to the Date of
Termination, other than by any means in violation of this Agreement or
any other duty owed to the Company by any person or entity or (iii) is
lawfully disclosed to the Executive by a third party. As used in this
Agreement the term "Confidential Information" means: information
disclosed to the Executive or known by the Executive as a consequence
of or through his relationship with the Company, about the directors,
officers, shareholders, customers, employees, investors, business
methods, public relations methods, organization, procedures or
finances, including, without limitation, information of or relating to
shareholder, customer or investor lists of the Company and any
affiliate.
(b) Non-Solicitation. In addition, the Executive hereby
agrees that during the Employment Period, and for a period of one (1)
year thereafter, regardless of the reason or circumstances of
Termination of employment with the Company, the Executive will not,
either on his own account or jointly with or as a manager, agent,
officer, employee, consultant, partner, joint venturer, owner or
shareholder or otherwise on behalf of any other person, firm or
corporation, (i) carry on or be engaged or interested directly or
indirectly in, or solicit, the sale or provision of services or the
development or marketing of service modifying antimicrobials and
biostatic products as offered by the Company to its customers at the
Date of Termination, (ii) endeavor directly or indirectly to canvas or
solicit in competition with Company or to interfere with the supply of
orders for goods or services from or by any person, firm or corporation
which during the Employment Period has been or is a supplier of goods
or services to Company or become an investor in the Company or (iii)
directly or indirectly solicit or attempt to solicit away from Company
any of its officers or employees or offer employment to any person who,
at any time during the six (6) months immediately preceding the Date of
Termination, is or was an officer or employee of Company.
8. Covenant Not to Compete. The Executive agrees that during the
Employment Period he will devote full-time to the business of the Company and
not engage in any type of business which engages in the medical internet, online
pharmacy and information services or any other related businesses, including but
not limited to all aspects of the Business. Subject to such full-time
requirement and the restrictions set forth below in this Section 8 and Section
3(c) above, the Executive shall be permitted to continue his existing business
investments and activities and
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may pursue additional business investments; provided that the Executive not
serve as a director or officer of any public company resulting from such
business investments. The Executive agrees that, from the end of the Employment
Period through a one (1) year period thereafter, he shall not, within the
Protected Territory (as defined hereinafter), (i) invest in, manage, consult or
participate in any way in any other business in competition with the Business
(in either an active or passive manner), (ii) participate in or advise any
business wherein any business activities similar to the Business are a relevant
business segment, or (iii) act for or on behalf of any business that intends to
enter or participate in the antimicrobial or biostatic products development
business, in each case unless the independent members of the Company's Board
determines that such action is in the best interests of the Company.
Notwithstanding the foregoing, the Executive may purchase stock as a stockholder
in any publicly traded company, including any company which is involved in the
development or operation of a medical internet site in the Protected Territory;
provided that the Executive does not own (together or separately or through his
affiliates) more than five percent (5%) of any company (other than the Company)
engaged in a business which is competitive with the Business of the Company
within the Protected Territory. In addition, the Executive shall not invest
(directly or indirectly) in any competitive business operating within the
Protected Territory unless the independent members of the Company's Board
determines that such an investment is in the best interests of the Company. For
purposes of this Agreement, the "Protected Territory" shall mean that area
within a one hundred (100) mile radius of the principal offices of the Company
at the Date of Termination and within a one hundred (100) mile radius of the
principal offices of any customer of the Company as of the Date of Termination.
9. Injunctive Relief and Enforcement. In the event of breach by
the Executive of the terms of Sections 5(e), 7 or 8, if the Company believes it
is suffering irreparable injury, then the Company shall, notwithstanding the
requirement of final and binding arbitration contemplated in Section 16 below,
be entitled to institute legal proceedings to enforce the specific performance
of this Agreement by the Executive and to enjoin the Executive from any further
violation of Sections 5(e), 7 or 8 and to exercise such remedies cumulatively or
in conjunction with all other rights and remedies provided by law and not
otherwise limited by this Agreement. The Executive acknowledges, however, that
the remedies at law for any breach by him of the provisions of Sections 5(e), 7
or 8 may be inadequate. In addition, in the event the covenants set forth in
Sections 5(e), 7 or 8 shall be determined by any court of competent jurisdiction
to be unenforceable by reason of extending for too great a period of time or
over too great a geographical area, by reason of being too restrictive or
expansive, or by constituting an unlawful restraint of trade in any other
respect, each such covenant shall be interpreted to extend over the maximum
period of time and over a maximum geographical area for which it may be
enforceable, and to the maximum extent in all other respects as to which it may
be enforceable, and enforced as so interpreted, all as determined by such court
in such action.
10. Notice. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when personally delivered when
transmitted by telecopy with written confirmation of transmission and receipt,
three (3) days after deposit in the U.S. mail, first class, with adequate
postage thereon, or one (1) day after delivery to an overnight air courier
guaranteeing next day delivery, addressed as follows:
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If to the Executive: Xx. Xxxxxx Xxx Xxxxxx
If to the Company: e*XX.XXX
0000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxx X-000
Xxxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to: Xxxxxxxxx, Xxxxxxx & Xxxxx, LLP
1600 Xxxxxxx Building
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt as provided above.
11. Severability. The invalidity or unenforceability of any
provision or 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; provided, however, that if any one or more of the terms
contained in Sections 5(e), 7 or 8 hereto shall for any reason be held by any
court of competent jurisdiction to be unenforceable by reason of extending for
too great a period of time or over too great a geographical area, by reason of
being too restrictive or expansive, or by constituting an unlawful restraint of
trade in any other respect, then such covenant shall not be deleted but shall be
reformed and constructed in a manner to enable it to be enforced to the extent
compatible with applicable law.
12. Assignment. This Agreement may not be assigned by the
Executive, but may be assigned by the Company to any successor to its business
and will inure to the benefit and be binding upon any such successor.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Headings. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
15. Choice of Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Georgia (without reference to the choice of law provisions of Georgia),
except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement,
and as
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to those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern.
16. Arbitration. Absent any irreparable injury being suffered by
the Company entitling the Company to seek injunctive relief against the
Executive pursuant to Section 9 hereof, in the event there shall be a dispute
among the parties arising out of or relating to this Agreement, or the breach
thereof, the parties agree that such dispute shall be resolved by final and
binding arbitration in Atlanta, Georgia under the rules of the American
Arbitration Association. Any award issued as a result of such arbitration shall
be final and binding between the parties thereto, and shall be enforceable by
any court having jurisdiction over the party against whom enforcement is sought.
The fees and expenses relating to such arbitration (with the exception of the
Executive's attorneys' fees, if any) or any action to enforce an arbitration
award shall be shared equally by the Company and the Executive.
15. Entire Agreement. This Agreement contains the entire agreement
and understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Executive and the Board of the
Company.
18. Board Approval. In any case in which this Agreement provides
for the approval, review or determination of the Board in connection with the
Executive's compensation, benefits, termination or compliance with restrictive
covenants herein expressed, then such approval, review or determination shall be
deemed a "Director's conflicting interest transaction", subject to the
procedures required by O.C.G.A. ss. 14-2-860 et seq.
19. The Executive's Acknowledgment. The Executive acknowledges he
has had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and he has read and understands the Agreement, is
fully aware of its legal effect, and has entered into it freely based on his own
judgment.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first above written.
"COMPANY" "EXECUTIVE"
e*XX.XXX
By:
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Xxxxxx Xxx Xxxxxx
Title:
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