EXHIBIT 10.9
EMPLOYMENT AGREEMENT
BY AND BETWEEN
CARE MANAGEMENT SCIENCE CORPORATION AND J. XXXXX XXXXXXX, M.D.
WHEREAS J. Xxxxx Xxxxxxx, M.D. (hereinafter "Executive") and Care
Management Science Corporation, a Pennsylvania corporation (hereinafter
"Company") desire and intend to enter into an employment relationship, all as
set forth below;
NOW THEREFORE, the parties hereto, in consideration of the promises and
mutual covenants and agreements contained herein, voluntarily and knowingly, and
intending to be legally bound hereby, covenant and agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) Company hereby employs Executive for the Term (as such term
is hereinafter defined) to render services to the Company as its VICE
PRESIDENT-BUSINESS DEVELOPMENT. Executive shall have the overall charge of
the Company's business development activities under the direction of the
President. Executive shall also be involved in other activities as directed
by the President or Chief Executive Officer. Within a reasonable period of
time, and in any event no later than six (6) months from the signing of this
Agreement, Executive shall be based full-time within the Philadelphia, PA
metropolitan area, but will be required to travel as part of his employment.
During the transition period from his current residence to his permanent
Philadelphia residence, Executive shall nonetheless be available on a regular
basis at the Philadelphia office through frequent travel and temporary living
arrangements in Philadelphia. Executive hereby accepts such employment and
agrees to render the services described herein, all on the terms and
conditions of this Agreement.
(b) Executive agrees to devote his entire working time, attention
and energies to the performance of the business of the Company and its
affiliates (as hereinafter defined); and Executive shall not, directly or
indirectly, alone or as a member of any partnership or other organization, or as
an officer, director or employee of any other corporation, partnership or other
organization, be actively engaged in or concerned with any other duties or
pursuits which, in the reasonable judgment of the Company, interfere with the
performance of his duties hereunder, or which, even if non-interfering, are
contrary to the best interests of the Company and its affiliates. Related to
that end, Executive agrees to provide Company with a perpetual, royalty-free
license to all intellectual property, trademarks, tradenames, software code, and
any other beneficial right that exists within XxxxxxXxxxx.xxx in exchange for
the Special Stock Option grant defined in Section 3(b) below and for the
additional consideration of $1. Executive further agrees to permanently and
completely shut down XxxxxxXxxxx.xxx within a reasonable period of time of
signing this Agreement. Notwithstanding the foregoing; Executive may invest his
personal or family assets in such form or manner as will not require any
services on his part in the operation of the affairs of the enterprises in which
such investments are made and in which his participation is solely that of a
minority investor; FURTHER, PROVIDED, that the Executive may engage in
charitable, civic, fraternal or trade group activities, so long as such
activities shall not violate any provision of this
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Agreement or interfere with his performance hereunder or compliance with the
restrictions contained herein. As used herein, the term "affiliate" means and
includes any person, corporation or other entity controlling, controlled by or
under common control with the Company.
2. TERM OF EMPLOYMENT.
The term of Executive's employment under this Agreement (the
"Term", collectively the Initial Term and any Extension Term(s)) will commence
as of Executive's first day of full-time employment with the Company on
December 29, 1999 (the "Effective Date") and shall end on the third
anniversary thereof (the "Initial Term"). In the absence of a written notice
from either party stating its intent to allow this agreement to expire at the
conclusion of the Initial Term, this Agreement shall automatically renew for
an additional one (1) year period (an "Extension Term"). Thereafter, this
Agreement shall automatically renew for additional one (1) year periods in
the absence of at least six (6) months advance written notice by either party
prior to the end of any Extension Term.
3. COMPENSATION AND BENEFITS.
(a) As compensation for the services to be rendered by Executive
hereunder, including all services to any subsidiary of the Company, the Company
agrees to pay or cause to be paid to Executive, during the first year of the
term of his Employment hereunder, an annual base salary of $155,000 (the "Base
Salary"). For each subsequent year of the Term, the Base Salary will be reviewed
annually by the Company and may be increased, but may not be decreased for
subsequent years. Executive's Base Salary shall be payable in such installments
as is the policy of the Company generally with respect to employees of the
Company.
(b) In addition to his Base Salary, Executive, shall be awarded a
stock option grant representing the number of shares equal to a 1.0% ownership
of the company at the time of the award. Such shares shall vest in accordance
with the rules and provisions of the Company's 1995 Equity Compensation Plan
("Option Plan") and as defined in and governed by the option grant attached
hereto as Exhibit 3(b).
Further, Executive shall be awarded stock option grants under the
Company's performance-based Senior Management Incentive Stock Option Plan as
follows: option shares equal to 0.25% of the company's fully-diluted common
stock (at $2.59 per share) vesting in accordance with the performance-based
Senior Management Incentive Stock Option Plan in an "all-or-none" fashion at
December 31, 2000 [50%] and December 31, 2001 [50%] respectively upon the
attainment of performance goals as defined in the performance-based Senior
Management Incentive Stock Option Plan.
Further, in consideration for the perpetual, world-wide,
royalty-free license to all beneficial rights of XxxxxxXxxxx.xxx, for
Executive's agreement to permanently and completely shut down XxxxxxXxxxx.xxx
shortly thereafter, and for Executive's waiver of any and all moving related
expenses and for Executive's willingness to cap any and all temporary living
expenses at a maximum of $10,000, Executive shall be awarded an additional stock
option grant of 30,024
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shares (the "Special Option Grant"). Such shares shall vest on a modified basis
as defined in the option grant
(c) The Company shall pay or reimburse Executive for all
reasonable expenses actually incurred or paid by him during the Term in the
performance of his services under this Agreement, upon presentation of expense
statements or vouchers or such other supporting information as it reasonably may
require. Such reimbursement shall include temporary living expenses in an amount
not to exceed $10,000, but shall not include any moving and relocation expenses
whatsoever.
(d) Executive shall be eligible under any incentive plan, stock
option plan, bonus, profit participation, pension, group insurance or other
benefit plans (both qualified and non-qualified for federal tax purposes) or
other so-called "fringe" benefits, if any, which the Company generally provides
to its executives.
(e) The Company shall provide to Executive and the members of his
immediate family, at the Company's expense, medical and dental insurance
covering its executives generally.
(f) Executive shall be eligible under any group life and/or
disability insurance covering its executives generally.
(g) Executive shall be entitled to three weeks paid vacation plus
all federal holidays, in each calendar year. In addition, Executive shall have
five (5 days) during the first year of this Agreement for moving and moving
related activities. Notwithstanding the foregoing, Executive represents that he
will not take any extended vacations during at least the first nine (9) months
of this Agreement.
4. CONFIDENTIALITY.
(a) Subject to the provisions below, Executive shall not, during
the Term of this Agreement, or at any time following the expiration or
termination of this Agreement, directly or indirectly, disclose or permit to be
known (other than (i) as is reasonably required in the regular course of his
duties, including disclosures to the Company's advisors and consultants, (ii) as
required by law or (iii) with the prior written consent of the Company), to any
person firm or corporation, any confidential information acquired by him during
the course of or as an incident to, his employment or the rendering of services
hereunder, relating to the Company or any of its subsidiaries, or any
corporation, partnership or other entity owned or controlled, directly or
indirectly, by or controlling the Company or its subsidiaries. Such confidential
information shall include, but shall not be limited to, business affairs,
proprietary technology, trade secrets, patented or copyrighted processes,
research and development data, know-how, market studies and forecasts,
competitive analyses, pricing policies, employee lists, personnel policies, the
substance of agreements with customers, suppliers and others, marketing or
dealership arrangements, servicing and training programs and arrangements,
customer lists and any other documents embodying such confidential information.
This confidentiality obligation shall not apply to any confidential information
which becomes publicly available other than pursuant to a breach of this Section
4 by
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Executive or which was obtained from a third party not acquiring the information
under an obligation of confidentiality from the disclosing party and intended
for the benefit of the Company.
(b) All information and documents relating to the Company and its
affiliates as hereinabove described shall be the exclusive property of the
Company and upon termination of Executive's employment with the Company, all
documents, records, reports, writings and other similar documents containing
confidential information, including copies thereof, then in Executive's
possession or control shall be returned and left with the Company.
5. NON-COMPETITION.
As a condition precedent to this Agreement, Executive shall sign,
contemporaneously with this Agreement, a Non-Competition Agreement in the form
attached hereto as EXHIBIT 5, (the "Non-Competition Agreement").
6. EQUITABLE REMEDIES AND ENFORCEABILITY OF COVENANTS.
(a) If Executive commits a breach, or threatens to commit a
breach, of any of the provisions hereof or under the Non-Competition or
Nondisclosure, Proprietary Information and Invention Assignment Agreements, it
is acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company.
(b) If any of the covenants contained herein or under the
Non-Competition or Nondisclosure, Proprietary Information and Invention
Assignment Agreements, or any part hereof or thereof, is hereafter construed to
be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect without regard to the
invalid portions.
(c) If any of the covenants contained herein or under the
Non-Competition or Nondisclosure, Proprietary Information and Invention
Assignment Agreements, or any part hereof or thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration, scope and/or areas of such provision and, in
its reduced form, such provision shall then be enforceable.
(d) The existence of any claim or cause of action by Executive
against the Company or any affiliate of the Company shall not constitute a
defense to the enforcement by the Company of the covenants contained herein, but
such claim or cause of action shall be litigated separately.
7. TERMINATION BY THE COMPANY.
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The Company may terminate Executive's employment under this
Agreement upon written notice to Executive if any one or more of the following
shall occur:
(a) There exists Cause for termination. For the purposes of this
Agreement, the term "Cause" means: (i) the failure by Executive to perform his
duties or obligations hereunder (other than such failure resulting from
Executive's incapacity due to illness or leaves of absence approved by the
Company) PROVIDED such failure remains uncured for a period of 10 business days
after written notice describing the same is received by Executive; (ii)
Executive's conviction of any felonious crime or offense; (iii) the unauthorized
securing by Executive of any personal profit in connection with the business of
the Company or any of its subsidiaries; (iv) use of any unlawful controlled
substance under any circumstances or the use of alcohol to the extent that it
interferes with the performance of Executive's duties hereunder, or which, in
the good faith opinion of the Company, are harmful to the Company; (v) the
commission of any acts involving dishonesty or fraud, which, in the good faith
opinion of the Company, are harmful to the Company; or (vi) any breach by
Executive of the terms of Section 4 of this Agreement or under the
Non-Competition or Nondisclosure, Proprietary Information and Invention
Assignment Agreements; PROVIDED such breach continues uncured for 5 business
days after written notice of such breach has been received by Executive from the
Company.
(b) Executive's death during the Term; PROVIDED, HOWEVER, that
Executive's legal representatives shall be entitled to receive his Base Salary
through the last day of the second month after the month in which his death
occurs, along with any other compensation and benefits to which Executive and
his legal representatives may be entitled under applicable plans, programs and
agreements of the Company, including but not limited to, the proceeds of any
applicable life insurance policies through the date of death. Further,
Executives Special Option Grant shall accelerate and become fully vested
immediately upon Executive's death.
(c) Executive shall become physically or mentally disabled so
that he is unable to perform his services hereunder for a period of 90
consecutive days or 120 non-consecutive days in any 365 day period.
Notwithstanding such disability, the Company shall continue to pay Executive his
Base Salary through the date of such termination, along with any other
compensation and benefits to which Executive and his legal representatives may
be entitled under applicable plans, programs and agreements of the Company,
including but not limited to, the proceeds of any applicable disability
insurance policies also shall be paid through the date of such termination.
Further, Executives Special Option Grant shall accelerate and become fully
vested immediately upon final determination of Executive's permanent disability.
(d) At the Company's sole discretion so long as Company pays to
Executive an amount equal to (i) 9 months Base Salary, medical benefits and
stock option vesting if such sole discretion termination occurs within the first
18 months of this Agreement and 6 months Base Salary and medical benefits and
stock option vesting if such sole discretion termination occurs after the first
18 months of this Agreement, and in either case, along with any other
compensation and benefits to which Executive may be entitled under applicable
plans, PRO RATED through the date of Executive's termination of employment (the
sum of these amounts collectively defines the "Severance Amount"). Payment of
such Severance Amount, if required, shall be made at the
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Company's option either (i) in equal monthly installments, or (ii) in a lump-sum
payment promptly following the termination of Executive's employment equal to
the then present value using a discount rate per annum determined by reference
to the discount rate then published by the Pension Benefit Guaranty Corporation
of the Severance Amount.
8. INVENTIONS DISCOVERED BY EXECUTIVE.
As a condition precedent to this Agreement, Executive shall sign,
contemporaneously with this Agreement, a Nondisclosure, Proprietary Information
and Invention Assignment Agreement in the form attached hereto as EXHIBIT 8 (the
"Nondisclosure, Proprietary Information and Invention Assignment Agreement").
9. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE.
(a) Executive represents and warrants that he is free to enter
into this Agreement and to perform the duties required hereunder, and that there
are no employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his duties
hereunder or which would be harmful to the Company.
(b) Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required by
any insurance company in connection with the Company's obtaining life insurance
on the life of Executive, if the Company so desires, or any other type of
insurance or fringe benefits as the Company shall determine from time to time to
obtain.
10. ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement (or breach thereof) shall be settled by arbitration in Philadelphia,
Pennsylvania, in accordance with the rules then existing of the American
Arbitration Association (three arbitrators), and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, the Company, at its sole option, shall be
entitled to seek and obtain equitable relief from any court of competent
jurisdiction, including, without limitation, temporary, preliminary and
permanent injunctive relief and specific performance with respect to alleged
violations of Sections 4 and 5 of this Agreement, Section 1 of the
Non-Competition Agreement or under the Nondisclosure Proprietary Information and
Invention Assignment Agreement, and the Company's pursuit of the remedies
described in Section 6 hereof in connection therewith. The parties shall be free
to pursue any remedy before the arbitration tribunal that they shall be
otherwise permitted to pursue in a court of competent jurisdiction. The award of
the arbitrators shall be final and binding and may be enforced by any court as
if it were a judgment of that court, and may include interest at a rate or rates
considered just under the circumstances by the arbitrators. The substantive law
of the Commonwealth of Pennsylvania shall be applied by the arbitrators to the
resolution of the dispute, provided that the arbitrators shall base their
decision on the express terms, covenants and conditions of this Agreement. The
arbitrators shall be required to produce a written decision setting forth the
reasons for the decision or award to be made. The parties agree that the
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arbitrators shall have no power to alter or modify any express provision of this
Agreement or to render any award which, by its terms, effects any such
alteration or modification. Upon written demand to any party to the arbitration
for the production of documents and things reasonably related to the issues
being arbitrated, the party upon whom such demand is made shall promptly
produce, or make available for inspection and copying, such documents and things
without the necessity of any action by the arbitrators. The party which does not
prevail in the arbitration shall be responsible for all fees and expenses
incurred, including, without limitation, reasonable attorneys' fees, for both
parties.
11. NOTICES.
All notices, requests, consents and other communications required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given if sent by private overnight mail service (delivery
confirmed by such service), registered or certified mail (return receipt
requested and received), telecopy (confirmed receipt by return fax from the
receiving party) or delivered personally, as follows (or to such other address
as either party shall designate by notice in writing to the other in accordance
herewith:
If to the Company:
Care Management Science Corporation
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
Telephone: 215/000-0000
Fax: 215/000-0000
If to Executive:
INSERT ADDRESS HERE
INSERT ADDRESS HERE
INSERT ADDRESS HERE
Attention: J. Xxxxx Xxxxxxx, M.D.
Telephone:
Fax:
12. GENERAL.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed entirely in Pennsylvania.
(b) This Agreement and the Exhibits attached hereto set forth the
entire agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the subject matter hereof. No representation,
promise or inducement has been made by either party that is not
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embodied in this Agreement or any of the agreements referred to herein, and
neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
(c) This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived,
only by a written instrument executed by the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of a party at any time or
times to require performance of any provision hereof shall in no manner affect
the right at a later time to enforce the same. No waiver by a party of the
breach of any term or covenant contained in this Agreement, whether by conduct
or otherwise, or any one or more continuing waivers of any such breach, shall
constitute a waiver of the breach of any other term or covenant contained in
this Agreement.
(d) This Agreement shall be binding upon the legal
representatives, heirs, distributes, successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
CARE MANAGEMENT SCIENCE CORPORATION
By:
------------------------- -----------------
Name: Date
Title:
EXECUTIVE:
------------------------- -----------------
J. Xxxxx Xxxxxxx, M.D. Date
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EXHIBIT 5
CARE MANAGEMENT SCIENCE CORPORATION NON-COMPETITION AGREEMENT
Care Management Science Corporation, a Pennsylvania corporation (the
"Company") and J. Xxxxx Xxxxxxx, M.D. ("Executive"), contemporaneously with the
execution of this Agreement are entering into an Employment Agreement of even
date herewith (the "Employment Agreement"), pursuant to which, among other
things, the Executive will be employed by the Company in the capacity of Vice
President - Business Development. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings given such terms in the
Employment Agreement. In addition to the Company's desire to engage the
Executive and the Executive's desire to serve the Company, under the terms and
conditions of the Employment Agreement, the Executive understands that the
Company wishes to ensure that the Executive does not compete with the Company,
on the terms and conditions specified below and in the Employment Agreement, in
the event the Executive's employment with the Company is terminated.
In consideration of the Company's employment of me and in order to
induce the Company to employ me, the Company and Executive hereby agree as
follows:
1. NON-COMPETITION; APPLICATION AND DURATION; NON-INTERFERENCE. The
Executive will not, during the term of the Executive's employment by the Company
and for a period of two years following the termination of employment (the term
of Executive's employment and the two years following termination, the
"Non-Competitive Period"):
(a) as owner, partner, joint venturer, stockholder, employee,
broker, agent, principal, trustee, corporate officer, director, licensor, or in
any capacity whatsoever engage in, become financially interested in, be employed
by, or render any consultation or business advice with respect to any business
which business is engaged in by the Company on the date hereof or during the
course of Executive's employment or which business ("Company Business") is
engaged in development or commercialization of any technologies or products
related to the development of software and databases that transform data into
tools to be used by managers in the health care information industry or the
provision of services with respect thereto (collectively, "Health Care Decision
Support"), in any geographic area where, during the time of Executive's
employment, the business of the Company or any of its subsidiaries is being, had
been or was proposed to be, conducted in any manner whatsoever, which
technologies, products or services are (i) competitive with any Health Care
Decision Support or other Company Business technology or application thereof or
products based thereon designed, marketed, announced, leased or sold by the
Company or any of its subsidiaries during the term of employment or at the time
of the termination of the Executive's employment; or (ii) substantially similar
to any technology or service involving Health Care Decision Support or other
Company Business which the Company was designing, marketing, announcing, leasing
or selling or proposing to design, market, lease or sell during the term of
Executive's employment; or (iii) substantially similar to any technology or
service involving Health Care Decision Support of which the Executive had
knowledge at the time of the termination of the Executive's employment that
the Company was proposing to design,
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market, announce, lease or sell; PROVIDED, HOWEVER, that the Executive may
own any securities of a corporation which is engaged in such business and is
publicly owned and traded but in amount not to exceed at any one time one
percent (1%) of any class of stock or securities of such company; PROVIDED
FURTHER that Executive is not personally engaged in any way, directly or
indirectly, in any scientific or business activity within such entity, which
competes with the Company as described above.
(b) during the Non-Competitive Period, request or cause any
suppliers or customers with whom the Company or any of its subsidiaries has a
business relationship to cancel or terminate any such business relationship with
the Company or any of its subsidiaries or solicit, interfere with or entice from
the Company any employee (or former employee) of the Company;
(c) solicit, interfere with, hire, offer to hire, persuade or
induce any person who is or was an officer, employee, customer or supplier of
the Company or any of its subsidiaries or affiliates to discontinue his
relationship with the Company or any of its subsidiaries or affiliates or accept
employment by or enter into contractual relations for compensation with any
other entity or person, or approach any such employee of the Company or any of
its subsidiaries or affiliates for any such purpose or authorize or knowingly
approve the taking of any such actions by any other individual or entity. The
term "affiliate" shall mean any person or entity that directly or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the Company.
2. MISCELLANEOUS.
(a) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(b) This Agreement, together with the Employment Agreement,
supersedes all prior agreements, written or oral, between the Executive and the
Company relating to the subject matter of this Agreement. This Agreement may not
be modified, changed or discharged in whole or in part, except by an agreement
in writing signed by the Executive and the Company. The Executive agrees that
any change or changes in his/her duties, salary or compensation after the
signing of this Agreement shall not affect the validity or scope of this
Agreement.
(c) This Agreement will be binding upon the Executive's heirs,
executors and administrators and will inure to the benefit of the Company and
its successors and assigns.
(d) No delay or omission by either party in exercising any right
under this Agreement will operate as a waiver of that or any other right. A
waiver or consent given by either party on any one occasion is effective only in
that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
(e) The Executive expressly consents to be bound by the
provisions of this Agreement for the benefit of the Company or any parent,
subsidiary or affiliate thereof to whose
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employ the Executive may be transferred without the necessity that this
Agreement be re-signed at the time of such transfer.
(f) The restrictions contained in this Agreement are necessary
for the protection of the business and goodwill of the Company and are
considered by the Executive to be reasonable for such purpose. The Executive
agrees that any breach of this Agreement is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, the Executive agrees that a remedy at law, in addition to such other
remedies which may be available, may be inadequate.
(g) This Agreement is governed by and will be construed as a
sealed instrument under and in accordance with the laws of the Commonwealth of
Pennsylvania. Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be arbitrated or commenced in a court, as and to the extent set forth in
the Employment Agreement.
The Executive understands that nothing in this Agreement shall
otherwise affect the Executive's obligations under the Employment Agreement or
the Non-Disclosure, Proprietary Information and Invention Assignment Agreement,
each dated ____________________________ between the Company and Executive.
Dated: By:
----------------------- -----------------------------
CARE MANAGEMENT SCIENCE CORPORATION
By:
--------------------------------
Name:
Title:
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EXHIBIT 8
CARE MANAGEMENT SCIENCE CORPORATION NONDISCLOSURE, PROPRIETARY INFORMATION
AND INVENTION ASSIGNMENT AGREEMENT
Care Management Science Corporation, a Pennsylvania corporation (the
"Company") and J. Xxxxx Xxxxxxx, M.D. ("Executive"), contemporaneously with the
execution of this Agreement are entering into an Employment Agreement of even
date herewith (the "Employment Agreement"), pursuant to which, among other
things, the Executive will be employed by the Company in the capacity of Vice
President - Business Development. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings given such terms in the
Employment Agreement. In addition to the Company's desire to engage the
Executive and the Executive's desire to serve the Company, under the terms and
conditions of the Employment Agreement, the Executive understands that the
Company wishes to ensure that the Executive does not breach any confidentiality
provisions of the Company and that all right, title and interest in and to any
inventions of Executive made during the term of his employment by the Company
are and remain the exclusive property of the Company.
In consideration for, and in order to induce my employment by the
Company, I hereby agree as follows:
1. CONFIDENTIALITY.
From time to time, before and after the date hereof, the Company
may disclose to you certain of its proprietary and/or confidential information
including, but not limited to: company know-how, techniques and
methodology(ies), statistical information, sample reports, software code and/or
algorithms, or, among other things, patient referral sources, physician and/or
contracting relationships, business plans or notes, drawings, price lists, the
substance of agreements between the Company and its customers or distributors,
research and development activities or plans, new business ideas or other items
related to the Company's business practices. the Company also may make certain
of its personnel, consultants, affiliates and/or agents accessible to you.
Further, in your course of employment by the Company you may have access to
similar information, including information about individual patients, from
Company affiliates and/or customers. The above items and any and all data,
information or materials related thereto whether received orally or in writing
are collectively referred to, for convenience, as the "Information".
With respect to any and all of the foregoing Information, at any
time provided by or obtained from the Company or any person or entity covered by
a confidentiality agreement with the Company, you will not copy, disseminate or
disclose to anyone or any entity, at any time, under any circumstances for any
purpose whatsoever other than as is reasonably required in the regular course of
your duties or as required by law, any of the Information without the Company's
prior consent. Notwithstanding the foregoing, the above shall not apply if, and
only if, one or more of the following are in effect:
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(a) the Information is clearly in the public domain at the time
of disclosure; or
(b) the Information becomes generally available to the public
other than as a result of a breach of this Agreement.
You further agree that at such time as your employment with the
Company terminates, you will cease to make any use of the Information and you
will return all of the Information to the Company. This confidentiality
provision will continue in full force and effect in perpetuity.
2. INVENTION ASSIGNMENT.
Whereas I will be participating in the preparation, writing,
creation, or development of certain business ideas, strategies, analyses,
reports, software, computer programs or other business activities collectively
referred to as the "Work";
(a) As an employee of the Company, any and all materials created
by me relating to the Work shall be considered as a "work made for hire".
Without limiting the foregoing, I hereby grant, transfer, assign, and convey to
the Company, its successors and assigns, the entire title, right, interest,
ownership and all subsidiary rights in and to the Work, all intellectual
property rights relating to the Work, and all copyrights, trade or service
marks, patents or other evidence of ownership and title pertaining to the Work,
including but not limited to the right to secure copyright, trade or service
xxxx or patent registration(s) in the Company' name as claimant and the right to
secure renewals, reissues, and extensions of any such filings in the United
States of America or any other country.
(b) I acknowledge that the Company, in its sole discretion, shall
determine whether copyright(s), trade or service xxxx(s) or patent
registration(s) in the Work shall be filed and/or preserved and maintained or
registered in the United States of America or any other country.
(c) I confirm that by this instrument, the Company and its
successors and assigns shall own the entire title, right and interest in and to
the Work, including the right to reproduce, display publicly, prepare derivative
Works from or distribute by sale, rental, lease lending or by other transfer of
ownership even if the Work does not constitute a "Work made for hire" as defined
in 17 U.S.C. Sections 101 and 201(b).
(d) I agree to take all actions and cooperate as is necessary to
protect the copyrights or other evidence of title in and to the Work and further
agree to execute any document(s) that may be necessary to perfect the Company'
ownership of copyrights, trade or service marks, patent(s) or other evidence of
ownership and title in the Work and the registration thereof, without further
compensation by the Company.
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(e) I agree that all terms of this Agreement are applicable to
each portion or part of the Work, as well as to the Work in its entirety.
(f) Notwithstanding anything contained herein, the terms of this
Agreement shall not apply to any invention for which no equipment, supplies,
facility, time, proprietary or trade secret information of the Company was used
and which can be demonstrated was developed entirely on my own time, at my own
expense and which:(i) does not relate in any way to the business of the Company
or to the Company's actual or demonstrably anticipated expansion research or
development; and (ii) which does not result from any Work performed by me for
the Company.
3. REPRESENTATIONS OF EXECUTIVE.
Executive represents and warrants that he is free to enter into
this Agreement and that there are no preceding claims or understandings,
restrictive covenants or other restrictions, whether written or oral, preventing
the performance of his duties hereunder.
4. MISCELLANEOUS.
(a) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(b) This Agreement, together with the Employment and
Non-Competition Agreements, supersedes all prior agreements, written or oral,
between the Executive and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole or
in part, except by an agreement in writing signed by the Executive and the
Company. The Executive agrees that any change or changes in his/her duties,
salary or compensation after the signing of this Agreement shall not affect the
validity or scope of this Agreement.
(c) This Agreement will be binding upon the Executive's heirs,
executors and administrators and will inure to the benefit of the Company and
its successors and assigns.
(d) No delay or omission by either party in exercising any right
under this Agreement will operate as a waiver of that or any other right. A
waiver or consent given by either party on any one occasion is effective only in
that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
(e) The Executive expressly consents to be bound by the
provisions of this Agreement for the benefit of the Company or any parent,
subsidiary or affiliate thereof to whose employ the Executive may be transferred
without the necessity that this Agreement be re-signed at the time of such
transfer.
(f) The restrictions contained in this Agreement are necessary
for the protection of the Company and are considered by the Executive to be
reasonable for such
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purpose. The Executive agrees that any breach of this Agreement is likely to
cause the Company substantial and irrevocable damage and therefore, in the event
of any such breach, the Executive agrees that a remedy at law, in addition to
such other remedies which may be available, may be inadequate.
(g) This Agreement is governed by and will be construed as a
sealed instrument under and in accordance with the laws of the Commonwealth of
Pennsylvania. Any action, suit, or other legal proceeding which is commenced to
resolve any matter arising under or relating to any provision of this Agreement
shall be arbitrated or commenced in a court, as and to the extent set forth in
the Employment Agreement.
The Executive understands that nothing in this Agreement shall
otherwise affect the Executive's obligations under the Employment Agreement or
the Non-Competition Agreement, each dated _____________________ between the
Company and Executive.
By my signature below, I hereby agree to the above.
By:
------------------------ --------------------
Name: Date
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