Exhibit 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of December 24, 1998, by and between
Care Management Science Corporation, a Pennsylvania corporation (the "Company"),
and Xxxxx X. Xxxxxxx, M.D., Ph.D. ("Executive").
WITNESSETH
WHEREAS, the Company wishes to employ Executive as its President and Chief
Executive Officer and Executive is desirous of being so employed, all upon the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive for the Term (as hereinafter
defined) to render services to the Company as President and Chief Executive
Officer. Employee shall have overall charge of the business operations of the
Company, with the general powers and duties of supervision and management
usually vested in the offices of chief executive office and president of a
corporation, shall perform the duties regarding such position as are set forth
in the Company's By-Laws and shall perform such other duties commensurate with
such office as he shall be reasonably directed by the Board of Directors of the
Company (the "Board") to perform, consistent with the management prerogatives,
policy directives and executive authority of the Board. Executive shall be
required to travel on Company business only to the extent substantially
consistent with his business travel obligations immediately prior to the
execution of this Agreement. Except as Executive otherwise agrees in writing,
Executive shall not be required to relocated from the standard metropolitan
statistical area (as defined by the Bureau of the Census, U.S. Department of
Commerce) for the City of Philadelphia, Pennsylvania (the "Greater Philadelphia
Metropolitan Area"). Executive hereby accepts such employment and agrees to
render the services described herein, all on the terms and conditions of this
Agreement.
(b) The Company acknowledges that Executive (i) holds and intends to
retain his faculty appointments (the "Appointments") at the medical and business
schools of the University of Pennsylvania (the "University"); (ii) maintains a
clinical medical practice at the Hospital of the University of Pennsylvania that
requires office hours and patient/hospital rounds of no more than one-half day
per week and, pursuant to his responsibilities under the terms of the
Appointments, teaches at the University, serves on faculty committees and
performs certain research for the University relating exclusively to the
Appointments, all of which activities, in the aggregate, require no more than
two full business days per week; and (iii) renders expert and consulting
services from time to time, engages in specific lecturing and speaking in
academic forums and may accept and retain other faculty appointments in addition
to or as replacement for those the Executive holds at the University
(collectively, such activities set forth under (i), (ii)
and (iii) above being hereinafter collectively referred to as the "Outside
Activities"). The University and the Company (through the Company's wholly-owned
subsidiary, The Center for Health Choice) have entered into a license agreement
with the University (the "License Agreement"). Under the University's patent
policies and faculty appointment policies applicable to the Executive under the
Appointments (collectively, the "University Patent Policies"), and pursuant to
the License Agreement, the intellectual property that Executive produces
pursuant to the Appointments, which is the property of the University, has been
licensed to the Company on the terms set forth in the License Agreement and the
University and the Company have permitted Executive to engage in the Outside
Activities, recognizing them as consistent with the Company's interests under
the License Agreement and the Executive's prior efforts through the date hereof
on behalf of the Company. The Company also acknowledges that the Outside
Activities do not conflict with the performance of the Executive's duties under
this Agreement. Other than performing the Outside Activities, and complying with
University Patent Policies, 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 Board, 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; PROVIDED,
HOWEVER, that so long as the Outside Activities do not require any additional
time of the Executive as they require on the date hereof, the Board shall not
characterize the Outside Activities as interfering or contrary to the best
interests of the Company; PROVIDED, FURTHER, that the 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 Agreement or materially
interfere with his performance of his duties 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 will commence as of
the date hereof (the "Effective Date") and end an the third anniversary hereof
(the "Initial Term"), subject to renewal as described below unless sooner
terminated by mutual agreement of the parties or pursuant to Section 7 or 8 of
this Agreement. Upon the termination of the Initial Term, and each anniversary
of such termination, this Agreement shall be deemed automatically renewed for a
period of twelve months thereafter (each being an "Additional Term"), unless, at
least 60 days prior to such termination, either party delivers written notice to
the other party of the intention of such party not to renew this Agreement (the
Initial Term and any Additional Term are hereinafter sometimes referred to as
the "Term" of this Agreement).
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 $250,000 (the "Base
Salary"). For each subsequent year of the Term, the Base Salary will be reviewed
annually by the Board and may be increased in the sole discretion of the Board;
PROVIDED, HOWEVER, that on each anniversary of the Effective Date, Executive
shall be entitled to an increase in Base Salary and the "Minimum Bonus" (as
defined below) equal to not less than five percent (5%) of the Base Salary and
the "Minimum Bonus" (as defined below) for the preceding year. Executive's Base
Salary shall not be reduced during the Term and shall be payable in such
installments as is the policy of the Company generally with respect to employees
of the Company.
(b) In each year of the Term of Executive's employment hereunder,
Executive shall receive, in one lump sum, a minimum bonus, in addition to the
Base Salary, in an amount not less than $25,000 (the "Minimum Bonus"). For
purposes of Section 7(a) and 8(c) of this Agreement, Executive shall be deemed
to have earned the Minimum Bonus at the outset of each year of the Term,
regardless of the date on which the Company pays or Executive receives the
Minimum Bonus. Executive may receive such other bonuses on such dates, in such
amounts and an on such other terms as may be determined by the Board in its sole
discretion (the Minimum Bonus, together with any other bonus compensation paid
or payable to the Executive shall be collectively referred to in this Agreement
as "Incentive Compensation").
(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.
(d) Executive shall be eligible under any incentive plan, stock
option plan, stock award plan, bonus, profit sharing, participation or extra
compensation plan, pension, group insurance, other benefit plans (both qualified
and non-qualified for federal tax purposes) or other so-called "fringe" benefits
or perquisites, if any, which the Company generally provides for its executives.
The Company currently has established, or upon the Effective Date will
establish, a stock option incentive plan (the "Incentive Plan") under which
options (collectively, the "Options") to acquire up to 5% of the fully diluted
equity of the Company will be granted to management on the Effective Date, as
eligible participants under the Incentive Plan. Of the 5% of the fully diluted
equity of the Company available under the Incentive Plan, Options representing
3% out of the available 5% will vest and become exercisable in 2000, if the
Company achieves the objectives described in the Incentive Plan for that year
and the remaining 2% out of the available 5% will vest and become exercisable in
2001, if the Company achieves the objectives described in the Incentive Plan for
that year; PROVIDED, HOWEVER, that if the Company fails to meet such objectives
described in the Incentive Plan for either or both 2000 or 2001, the Options
that would have become exercisable in each year in which such objectives are
not met shall not become exercisable in such yew but instead will become
exercisable by Executive at a substantially later date (as set forth in the
Incentive Plan and the documents evidencing the Options), if Executive is then
employed by the Company. The Options to be granted to the Executive from the
Incentive Plan shall not be "incentive stock options" under the Internal Revenue
Code of 1986, as amended and therefore shall be non-qualified stock options
("NQSO's), shall have an exercise price equal to the per share price paid for
the equity investment to be made in the Company by X. X. Xxxxxxx & Co. (the
"Investor") on or before the Effective Date and, subject to achievement by the
Company of objectives set forth in the Incentive Plan, as described above, shall
be exercisable in an amount not less than 0.75% of the fully diluted equity of
the Company in 2000 and 0.5% of the fully diluted equity of the Company in 2001.
The Company shall furnish the Executive with office space, secretarial support
and such other facilities and services as shall be convenient and adequate for
the performance of his duties as set forth in this Agreement.
(e) The Company shall provide to Executive and the members of his
immediate family, at the Company's expense, medical (including major medical and
preventive care) and dental insurance with coverage reasonably satisfactory to
Executive and the Company.
(f) Executive shall be eligible under any group life and/or
disability insurance covering its executives generally.
(g) Executive shall be entitled to not less than four weeks paid
vacation, plus all federal holidays, in each calendar year. Unused vacation days
shall not be accumulated from year to year for the purpose of absence from work,
but upon termination of employment of Executive for any reason, Executive shall
be entitled to compensation calculated on his Base Salary on a PRO RATA basis,
for all accrued but unpaid vacation days.
(h) Any securities of the Company now or hereafter held by the
Executive and acquired by the Executive from the Company in any transaction not
involving a public offering, whether received by the Executive through exercise
of stock options or otherwise, shall be included in the definition of
"Registrable Securities" under that certain Registration Rights Agreement, dated
as of the Effective Date, between the Company and the Investor (the
"Registration Rights Agreement") and the Executive shall be deemed a "Holder of
Registrable Securities") under such Registration Rights Agreement, with all
rights and privileges thereof as though such Registration Rights Agreement were
fully set forth herein.
(i) No changes shall be made in any benefits, insurance plans or
perquisites that would adversely affect the Executive unless such change occurs
pursuant to a program applicable to all Company executives and does not result
in a proportionately greater reduction in the rights or benefits of Executive as
compared with any other executive of the Company. Nothing paid to the Executive
under subparagraphs 3(d), (e), (f) and (g) shall be deemed to be in lieu of the
Base Salary or Incentive Compensation to which the Executive would be otherwise
entitled under subparagraphs 3(a) and (b).
4. CONFIDENTIALITY.
(a) Except as otherwise required by the University Patent Policy or
the License Agreement, and subject to the provisions of Section 4(c) below,
Executive shall not, during the Term of this Agreement, or at any time following
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 disclosure to the Company's advisors and consultants, (ii) as
required by law or (iii) with the prior written consent of the Board of
Directors), 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 has a beneficial interest. Such confidential information shall
include, but shall not be limited to, business affairs, proprietary technology,
trade secrets, patented 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 other marketing or dealership arrangements, servicing and training programs
and arrangements, customer lists and any other documents embodying any
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 Executive or were 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.
(c) Recognizing the requirement of the University Patent Policies,
the terms of the Appointments and the desire of the Executive, to disclose
certain work done at the direction of the Company at the University or
elsewhere, either through publication in reputable scientific journals,
participation in lectures, seminars or symposia, or by correspondence with other
members of the scientific community (herein referred to as a "Disclosure"), the
Executive and the Company shall confer and consult with each other in each
instance where any anticipated scientific Disclosure may contain some of the
trade secrets, know-how or processes of the Company with a view toward resolving
the competing interests of confidentiality and desired scientific interchange
through disclosure in a manner fairly and reasonably consistent with the
interests of the Company. No such Disclosure shall be made, nor shall any
manuscript be submitted for publication, unless and until (i) the Board has had
at least thirty days to review the same; (ii) the Company, if desired, has had
ample time to effect associated patent filings so as to preserve patent rights;
and (iii) such Disclosure is not prohibited under the University Patent Policy,
the License Agreement, or any other agreement between the Company and a third
party.
5. NON-COMPETITION.
Executive shall sign a Non-Competition Agreement in the form attached
hereto as EXHIBIT A (the "Non-Competition Agreement"). The Non-Competition
Agreement shall have no further force or effect if the Executive's employment
hereunder is terminated by the Company, under Section 7 or otherwise, for any
reason other than "Cause" (as defined in Section 7) or if Executive terminates
his employment for "Good Reason" under and as defined in Section 8.
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, 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 any part 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 any part 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 and/or area of such provision and,
in its reduced form, such provision shall then be enforceable.
(d) Other than claiming that the employment of Executive under this
Agreement was terminated for reasons other than "cause" as defined in Section 7,
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.
(a) The Company may terminate Executive's employment under this
Agreement without any breach of this Agreement only upon written notice to
Executive setting forth the basis for such termination and only if any one or
more of the following shall occur, and for no other reason:
(1) There exists Cause for termination and the Company delivers
to the Executive written notice within 90 days of knowing or having reasonable
basis for knowing of an event constituting such Cause. For purposes of this
Agreement, the term "Cause" seems (a) the willful failure by Executive to
substantially perform his duties or obligations hereunder (other than any such
failure resulting from Executive's incapacity due to physical or mental illness
or leaves of absence to which Executive is entitled and other than breaches of
the covenants set
forth in Section 4 hereof or under the Non-Competition Agreement or the
Nondisclosure, Proprietary Information and Invention Assignment Agreement (as
hereinafter defined) which events are governed by clause (e) below), resulting,
or reasonably likely to result, in material economic harm to the Company;
PROVIDED such failure remains uncured for a period of 20 days after written
notice describing the same is received by the Executive; PROVIDED, FURTHER that
isolated or insubstantial failures shall not constitute Cause hereunder, (b)
Executive's conviction (which, through lapse of time or otherwise, is not
subject to appeal) of any felonious crime or offense, (c) the unauthorized
securing by Executive of any personal profit in connection with the business of
the Company or any of its subsidiaries, (d) use of alcohol or any unlawful
controlled substance to the extent that it interferes on a continuing and
material basis with the performance of Executive's duties under the Agreement,
(e) the commission of any acts involving dishonesty or fraud which, in the goof
faith opinion of the Board, are harmful to the Company, or (f) any material
breach by Executive of the terms of Section 4 of this Agreement or under the
Non-Competition Agreement or the Nondisclosure, Proprietary Information and
Invention Assignment Agreement; PROVIDED such breach continues uncured for (7)
days after written notice of such breach has been received by the Executive from
the Company. For purposes of the definition of "Cause" under this Agreement, no
act, or failure to act on Executive's part shall be considered "willful" if it
was done, or omitted to be done, in good faith and with reasonable belief that
such action or omission was in the best interest of the Company. Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to the Executive a copy of the resolution, duly adopted by
the affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board (after notice to Executive and an opportunity
for Executive, together with Executive's counsel, to be heard before the Board
prior to its taking such action), finding that in the opinion of the Board,
Executive engaged in conduct set forth above in clauses (a)-(f) above, and
specifying the particulars thereof (a "Notice of Termination for Cause"). Upon
Executive's termination for cause by the Company, Executive shall be entitled to
receive his Base Salary through the day on which his termination occurs,
together with any performance or special Incentive Compensation earned but not
yet paid at the time of such termination; and any other compensation and
benefits to which Executive may be entitled under applicable plans, programs and
agreements of the Company through the date of such termination.
(2) 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 third month after the month in which his death
occurs, together with any performance or special Incentive Compensation earned
but not yet paid at the time of death; a PRO RATA performance Incentive
Compensation bonus for any performance-based bonus paid to all executives of the
Company in the year in which such termination for death occurs; and 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, without limitation, the proceeds of any applicable disability
insurance policies through the date of such termination.
(3) Executive shall become physically or mentally disabled so
that he is unable substantially to perform his services hereunder for a
period of 120 consecutive days or 180 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, together with
any performance or special Incentive Compensation earned but not yet paid at
the time of termination for disability; a PRO RATA performance Incentive
Compensation bonus for any performance-based bonus paid to all executives of
the Company in the year in which such termination for disability occurs; and
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, without limitation, the proceeds of any
applicable disability insurance policies through the date of such termination.
(b) Upon any termination of Executive's employment hereunder under
Section 7, Executive shall be deemed to have resigned from all positions as an
officer and/or director of the Company and any of its subsidiaries.
(c) All determinations of Cause or termination pursuant to Section 2
hereof or this Section 7 shall be made by the vote of a majority of the entire
Board of Directors.
8. TERMINATION BY EXECUTIVE.
(a) Executive may terminate this Agreement, without any breach of
this Agreement, for "Good Reason"; PROVIDED that Executive has provided written
notice (a "Good Reason Notice") to the Company that an event included in the
definition of "Godo Reason" has occurred, specifying such event and stating that
unless such event is cured, that Executive will terminate this Agreement, and
such event continues uncured for 30 days after such written notice from the
Executive has been received by the Company. Good Reason shall exist if any one
or more of the following shall occur:
(1) a material breach of the terms of this Agreement by the
Company and such breach continues uncured for 30 days after written notice of
such breach is first given;
(2) a material breach by the Company of any other material
agreement with Executive and such breach continues for 30 days after written
notice of such breach is first given.
(3) a "change of control" of the Company (as defined below).
(4) the Executive is removed from the position of President and
Chief Executive Officer of the Company for any reason other than the termination
of his employment permitted by the terms of this Agreement; the Executive
suffers a material diminution in the authorities, duties or responsibilities
normally associated with the position of President and Chief Executive Officer,
or there are assigned to him duties and responsibilities materially inconsistent
with those normally associated with such position; the Executive's Base Salary
is decreased by the Company, or his benefits under any material employee benefit
plan or program of the Company is or are reduced if similar reductions are not
made for substantially all other senior executives; the Company fails to obtain
a written agreement for any successor to the Company to assume and perform this
Agreement; and within 30 days of learning of the occurrence of any of the events
set forth in this clause (4), provides the Company with a Good Reason Notice
specifying any of such events specified in this clause (4) and thereafter, upon
the failure of the Company to cure the same, the Executive terminates his
employment with the Company.
(5) any purported termination of the Executive's employment
which is not effected for Cause and pursuant to a Notice of Termination for
Cause under Paragraph 7 (and for purposes of this Agreement, no such purported
termination shall be effective).
(b) For purposes of this Paragraph 8, a "change in control" shall
mean the occurrence of any one of the following events; PROVIDED, HOWEVER, that
if the Executive, as a director of the Company, voted in favor of any of the
events that otherwise would constitute a
"change of control" hereunder, or sold any securities as part of the events that
otherwise would constitute a "change of control" hereunder, no change of control
shall be deemed to have occurred:
(1) any "person," as such term is used in Sections 3(a)(9) and
13(d) of the Securities Exchange Act of 1934, as amended (the "Act"), other than
Executive and his affiliates, executors, administrators and successors, becomes
a "beneficial owner", as such term is used in Rule 13d-3 promulgated under the
Act, of 50% or more of the Company's voting stock;
(2) individuals who are "Incumbent Directors" cease to
constitute a majority of the members of the Board ("Incumbent Directors" for
this purpose being the members of the Board of the date of this Agreement,
provided that any persons becoming a director subsequent to such date whose
election or nomination for election was supported by two-thirds of the directors
who then comprised the Incumbent Directors shall be considered to be an
Incumbent Director);
(3) the Company adopts any plan of liquidation providing for the
distribution of all or substantially all of its assets;
(4) all or substantially all of the business of the Company is
disposed of pursuant to a merger, consolidation or other transaction (unless the
shareholders of the Company immediately prior to such merger, consolidation or
other transaction beneficially own, directly or indirectly, in substantially the
same proportion as they owned the voting stock of the Company, all of the voting
stock or other ownership interests of the entity or entities, if any, that
succeed to the business of the Company;
(5) the Company combines with another company and is the
surviving corporation, but immediately after the combination, the shareholders
of the Company, immediately prior to the combination, hold, directly or
indirectly, 50% or less of the voting stock of the combined company (there being
excluded from the number of shares held by such shareholders, but not from the
voting stock of the combined company, any share received by "affiliates" as such
term is defined in the rules of the Securities and Exchange Commission, of such
other company in exchange for the stock of such other company); or
(6) a "change of control" as defined in the form of indenture
governing any indebtedness of the Company shall have occurred.
(c) In the event the Executive terminates his employment for Good
Reason, the Executive shall be entitled to (i) continued Base Salary payments
for a period of six months following termination of his employment or through
the end of the Term, whichever is longer, payable at Executive's option, either
(A) over such six months or the remaining Term, as the case may be or (B) in a
lump-sum payment promptly following termination of the 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 remaining Base Salary due the Executive
through the end of the Term; (ii) any performance bonus earned but not yet paid
or any performance bonus paid to all executives after Executive's termination,
PRO RATED through the date of the Executive's termination of employment; and
(iii) any Incentive Compensation and other compensation and benefits which
Executive has earned and to which he may be entitled under applicable plans,
programs and agreements of the Company, PRO RATED through the date of the
Executive's termination of employment.
(d) In the event of any termination of the Executive's employment
under the Agreement, he shall be under no obligation to seek other employment,
and there shall be no offset against amounts due him under the Agreement on
account of any remuneration attributable to any subsequent employment that he
may obtain. Any amounts due the Executive under the Agreement in the event of
any termination of his employment with the Company are in the nature of
severance payments, or liquidated damages which contemplate both direct and
consequential damages that he may suffer as a result of the termination of his
employment, or both, and are not in the nature of a penalty.
(e) Upon any termination of Executive's employment hereunder for Good
Reason, Executive shall be deemed to have resigned from all positions as an
officer and/or director of the Company and any of its subsidiaries.
9. INVENTIONS DISCOVERED BY EXECUTIVE.
Executive shall sign a Nondisclosure, Proprietary Information and Invention
Assignment Agreement in the form attached hereto as EXHIBIT B (the
"Nondisclosure, Proprietary Information and Invention Assignment Agreement").
10. INDEMNIFICATION.
The Company shall indemnify Executive, to the maximum extent permitted by
applicable law, against all costs, charges and expenses (including amounts paid
in settlement and reasonable attorneys' fees) incurred or sustained by him in
connection with any action, suit or proceeding to which he may be made a party
by reason of his being an officer, director, employee or agent of the Company or
of any subsidiary or affiliate of the Company. The rights contained in this
paragraph 10 shall not limit any rights of the Executive under the Articles or
By-laws of the Company.
11. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE.
(a) Subject to the University Patent Policies and the License Agreement,
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.
(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, and any other type of
insurance or fringe benefit as the Company shall determine from time to time to
obtain.
12. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or
the 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 in any court having jurisdiction thereof. Notwithstanding the
foregoing, the Company, at its 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 the covenants contained in
Sections 4 and 5 of this Agreement, Section 1 of the Non-Competition Agreement
or 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 made. The parties agree that the 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.
13. 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, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Executive:
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
14. 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, the Purchase Agreement (including the Schedules
and Exhibits thereto), the University of Patent Policies, the License Agreement,
the Articles and By-laws of the Company and all documents referred to therein
and herein 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 embodied in this Agreement or any of the agreements referred to
above, 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, distributees, successors and assigns of the parties hereto; PROVIDED,
however, that the Company shall not sell or substantially all of its assets
without requiring the purchaser to expressly assume the Company's obligations
under this Agreement, without releasing the Company.
(e) Executive agrees to set in good faith in exercising any authority
to take corporate action as a director or officer to effect termination of
employment hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CARE MANAGEMENT SCIENCE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx
------------------------------(SEAL)
Xxxxx X. Xxxxxxx
CARE MANAGEMENT SCIENCE CORPORATION
NON-COMPETITION AGREEMENT
Care Management Science Corporation, a Pennsylvania corporation (the
"Company") and the undersigned 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 continuing employment with the Company in the capacity of
President and Chief Executive Officer. Capitalized terms used in this Agreement
and not otherwise defined herein have the meanings given such terms in 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 for "Cause" or the
Executive terminates his employment for any reason other than "Good Reason"
(other than the natural expiration of the term of the Employment Agreement), as
such terms are defined in the Employment Agreement.
In consideration of the Company's employment of the Executive pursuant to
the Employment Agreement, the Company and the Executive 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 one year following the termination of the Executive's
employment (the term of the Executive's employment and the one year following
termination, the "Non-Competitive Period") (PROVIDED, HOWEVER, that there shall
be no Non-Competitive Period whatsoever if such termination of the Executive's
employment occurs by action of the Company earlier than the end of the Initial
Term or any Additional Term and such termination was not for Cause under the
Employment Agreement or by action of the Executive and such termination does not
for Good Reason under the Employment Agreement):
(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 and commercialization of any technologies or products
related to the development of software and data bases 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 the 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 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 the 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, market, announce, lease or sell; PROVIDED, HOWEVER, that
the Executive may own any securities of any corporation which is engaged in such
business and is publicly owned and traded but in an amount not to exceed at any
one time one percent (1%) of any class of stock or securities of such company;
further, PROVIDED, that Executive may become employed by an entity which
competes with the Company as described in clause (i) PROVIDED 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; PROVIDED, FURTHER, that this Agreement and the Employment
Agreement shall not be construed to restrict the Executive's right to be
employed as a full-time faculty member of any university or charitable
foundation after termination of the Employment Agreement where the
Non-Competition Period shall be in effect, so long as Executive's activities are
limited to research and development.
(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 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 and
the other documents referred to therein, supersedes all prior agreements,
written or oral, between the Employee 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 this Agreement shall not affect the validity or scope of this
Agreement, subject to the provisions of the Employment 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, as and to the extent the Employment Agreement is
permitted to be assigned, under the terms thereof.
(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) Subject to the requirements on assignment set forth in the
Employment Agreement, 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 business and good will 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 Non-Disclosure, Proprietary
Information and Invention Assignment Agreement, dated September 8, 1995, between
the Company and the Executive.
Dated: ______________________ By: __________________________
Xxxxx X. Xxxxxxx
Accepted and Agreed to:
CARE MANAGEMENT SCIENCE CORPORATION
By: ________________________
Name:
Title:
