EXHIBIT 10.28
AMENDMENT TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") is entered into
effective as of April 30, 1997, by and between Access Health, Inc. (the
"Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
RECITALS
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WHEREAS, Employee is currently employed by the Company as Chairman of its
Board of Directors pursuant to an Employment Agreement (the "Employment
Agreement") effective as of December 1, 1996, and the Parties desire to amend
the Employment Agreement as hereinafter stated.
NOW, THEREFORE, in consideration of the mutual promises made herein and in
the Employment Agreement, the Company and Employee (collectively referred to as
the "Parties") hereby agree as follows:
1. Termination of Services. Employee and the Board of Directors of the
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Company mutually agreed Employee shall be relieved of any further
responsibility to provide the services specified in Paragraph 3 of the
Employment Agreement and to serve as its Chairman as of April 5, 1997. There is
no further obligation on the part of the Company or its Board of Directors to
have Employee act as the Chairman of the Board of Directors, and there is no
further obligation on the part of Employee to serve as the Chairman of the Board
of Directors subsequent to the March 1997 Stockholders Meeting. Whether or not
Employee continues to act as the Chairman of the Board of Directors of the
Company will have no effect on his rights or obligations, nor on the Company's
rights or obligations, under the Employment Agreement or under this Amendment.
2. Payment. Employee and the Chief Executive Officer of the Company have
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mutually agreed to revise employee's services under Paragraph 3 of the
Employment Agreement as specified above so that the only services expected of
Employee hereafter will be as a member of the Company's Board of Directors for
so long as he shall continue to serve thereon. The Company will promptly pay to
Employee the sum of two hundred twnety seven thousand eight hundred sixty five
Dollars ($227,865) in lieu of all salary and benefits, including insurance and
car allowance, which would have been received by Employee from the Company for
the period May 1, 1997 through the remainder of the Employment Period as
defined in the Employment Agreement.
3. 1995 Option. The Parties acknowledge and confirm to each other that
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12,000 of the 60,000 shares in the Option granted on May 23, 1995 to purchase
60,000 shares of the Company's common stock (the "1995 Option") are vested and
exercisable by Employee, 12,000 shares will become vested and exercisable on
May 23, 1997, another 12,000 shares will become vested and exercisable on May
23, 1998, another 12,000 shares will become vested and exercisable on May 23,
1999, and the final 12,000 shares will become vested and exercisable on May
23, 2000. The Parties agree the 1995 Option is amended hereby to provide that
the 12,000 shares which were to become vested and exercisable on May 23, 1998,
and the 12,000 shares which were to become vested and exercisable on May 23,
1999 and the 12,000 shares which were to become vested and exercisable on May
23, 2000 shall now be vested and exercisable. As a result of this Amendment,
48,000 of the 60,000 shares in the 1995 Option are now vested and exercisable,
and the final 12,000 shares will become exercisable on May 23, 1997. In
addition, the Parties agree the 1995 Option is further amended hereby to
provide that Employee shall have the right to exercise the 1995 Option and to
purchase any of the 36,000 shares accelerated hereby, pursuant to the terms of
that Option at any time from now through the 12-month period following the
latter of (i) September 30, 1998 or (ii) the date Employee no longer serves on
the Company's Board of Directors.
4. Life Insurance. The Company shall transfer to Employee ownership of
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the key man term insurance on his life, provided any additional cost in so doing
is borne by Employee.
5. Non-Competition. Employee agrees in consideration of this Agreement
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that Section 8 of the Employment Agreement shall be amended to read "until
September 30, 1998," and, accordingly, the provisions of such Section shall be
applicable to Employee until such date whether or not Employee continues to
serve as a director of the Company.
6. No Other Changes. Except as expressly amended hereby, the Employment
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Agreement shall remain in full force and effect.
7. No Representations. Each party represents that it or he has had the
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opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Amendment. Neither party has
relied upon any representations or statements made by the other party hereto not
specifically set forth in this Amendment.
8. Entire Agreement. The Employment Agreement, as amended hereby,
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represents the entire agreement and understanding between the Company and
Employee concerning Employee's separation from the Company and supersedes and
replaces any and all prior agreements and understandings concerning Employee's
relationship with the Company and his compensation by the Company.
9. No Oral Modification. The Employment Agreement and this Amendment may
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only be amended in writing signed by Employee and an officer of the Company.
10. Governing Law. This Amendment shall be governed by the laws of the
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State of California, without reference to its choice of law principles.
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11. Counterparts. This Amendment may be executed in counterparts, and
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each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
IN WITNESS WHEREOF, the Parties have executed this Amendment to Employment
Agreement as of the date set forth above.
ACCESS HEALTH, INC.
by /s/ Xxxxx X. Xxxxxx
____________________________________________
Xxxxx X. Xxxxxx
Senior Vice-President and General Counsel
/s/ Xxxxxxx X. XxxxXxx
______________________________________________
XXXXXXX X. XXXXXXX
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