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EXHIBIT 10.63
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated August 20, 1999 (the "Effective
Date"), is made and entered into by and between RAYTEL MEDICAL CORPORATION,
INC., a Delaware corporation (the "Company"), and Xxxxx Xxxxxxx (the
"Employee").
RECITALS
A. The Company and the Employee desire to terminate the existing
employment agreement between Raytel Medical Corporation and Xxxxx Xxxxxxx dated
September 28, 1995 (the "1995 Agreement"), and to enter into this Agreement for
the continued employment of the Employee as the Company' President and Chief
Operating Officer, and of its subsidiary corporations, joint venture interests
in various cardiovascular labs and imaging centers, and the Employee desires to
accept such continued employment. The employment of the Employee by the Company
pursuant to this Agreement is hereinafter sometimes referred to as the
"Employment."
B. The Company and the Employee hereby enter into this Agreement setting
forth each and all of the terms and conditions of the Employment.
NOW THEREFORE, in consideration of the premises and the agreements,
representations and warranties, contained in this Agreement, the Company and the
Employee hereby agree as follows:
AGREEMENT
1. Duties Term and Exclusive Employment.
1.1 Duties and Responsibilities. Within the limitations established
by this Agreement and the resolutions of the Board of Directors, the Employee
shall have the title of President and Chief Operating Officer, but the
Employee's responsibility and authority will be established by the Company's
Chief Executive Officer, who shall establish specific projects for the Employee.
The initial projects are set forth in Exhibit 1.1, attached hereto and
incorporated herein by reference. It is the intention of the parties that the
duties and responsibilities previously assigned to Employee as set forth in the
Company's Bylaws and in the 1995 Employment Agreement (as defined in Paragraph
1.2, herein below) shall be re-assigned to the Chief Executive Officer or to
other executives or employees within the Company during the term of this
Agreement as defined in Paragraph 1.4 of this Agreement.
1.2 Termination of Existing Employment Agreement. Effective with the
Effective Date of this Agreement, the employment agreement dated September 28,
1995 (the "1995 Employment Agreement") shall be terminated.
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1.3 Termination of Key Management Retention and Severance
Arrangement. Effective with the Effective Date of this Agreement, Employee
hereby waives participation in the Key Management Retention Bonus and Severance
Plan adopted by the Compensation Committee of the Board of Directors at a
meeting held on May 19, 1999.
1.4 Term of Employment. The Employment hereunder shall begin on the
Effective Date and, unless earlier terminated as provided in Paragraphs 3 and 5
hereof, the Employment shall continue until midnight on December 31, 1999 (the
"Term"). The Employment may not be extended except pursuant to the mutual
written agreement of the parties and signed by the parties.
1.5 No Other Employment or Business Activities. During the Term of
the Employment, the Employee shall work a minimum of forty (40) hours per week
and shall diligently and conscientiously devote all of his working time and
attention to discharging his duties to the Company and shall not, without the
express prior written consent of the Board of Directors of the Company, render
to any other person, corporation, partnership, firm, company, joint venture or
other entity any services of any kind for compensation or engage in any other
activity that would in any manner whatsoever interfere with the performance of
the Employee's duties on behalf of the Company. The foregoing notwithstanding,
nothing herein shall prevent the Employee from engaging in charitable activities
or activities of professional associations, from managing any personal
investments on his own personal time, provided that such investments are not
otherwise competitive with the Company, or engaging in the additional activities
listed and described in Exhibit 1.5, attached hereto and incorporated herein by
reference.
1.6 Proprietary Information and Inventions Agreement. The Employee
acknowledges his obligations under the Proprietary Information and Inventions
Agreement of even date herewith, set forth in Exhibit 1.6, attached hereto and
incorporated herein by reference (the "Proprietary Information and Inventions
Agreement"), and agrees to be bound by the provisions thereof.
1.7 Indemnity Agreement. The parties acknowledge their respective
rights and obligations under the Indemnity Agreement of even date herewith, set
forth in Exhibit 1.7, attached hereto and incorporated herein by reference (the
"Indemnity Agreement"), and agree to be bound by the provisions thereof.
2. Compensation. In full and complete consideration for the Employment
and each and all of the services to be rendered to the Company, and any
subsidiary of affiliate of the Company, by the Employee, the Employee shall
receive compensation as follows, except as otherwise provided in Paragraph 3
hereof:
2.1 Base Salary. The Employee shall receive from the Company a base
salary, at the initial annual rate of Two Hundred Ninety-three Thousand Two
Hundred Fifty-two and 96/100 Dollars ($293,252.96), pro rated for any partial
week, payable in
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periodic installments in accordance with the Company's payroll policy as in
effect from time to time. From each salary payment the Company will withhold any
pay to the proper governmental authorities any and all amounts required by law
to be withheld for federal income tax, state income tax, federal social security
tax, state disability insurance premiums, and any and all other amounts required
by law to be withheld from the Employee's salary. The Company will also deduct
from the Employee's salary payments those sums, if any, authorized by the
Employee in writing and approved by the Company. The Company will make payments
and contribution, such as unemployment insurance premiums, workers' compensation
insurance premiums and the employer's portion of federal social security tax,
which are required by law to be made by the Company for the Employee's benefit
without any deduction from the Employee's salary payments.
2.2 Bonus Awards. The Employee will be eligible for consideration for
incentive compensation ("Bonus Awards"), although no Bonus Awards are required
to be paid hereunder. All Bonus Awards shall be determined by the Compensation
Committee with approval from the Board of Directors in their sole discretion for
the current fiscal period ending September 30, 1999, as they shall determine and
based upon such factors as they deem relevant. Any such Bonus award will be
deemed to be earned at the end of the current fiscal period and will be paid to
the Employee within ninety (90) days following the end of the fiscal period for
which such award is made; provided, however, that if, prior to the end of any
such fiscal period, (i) the Employment is terminated as a result of the
Employee's death or disability; (ii) the Company terminated the Employment other
than For Cause pursuant to Paragraph 3.2 hereof; or (iii) the Employee
terminates the Employment for Good Reason pursuant to Paragraph 3.4 hereof, in
each case, the Employee shall be entitled to receive a prorated Bonus Award
determined by multiplying the amount of the Bonus Award, if any, that the
Employee would have received had the Employee been employed for the full fiscal
period by a fraction, the numerator of which is the number of full months of
Employment completed during the fiscal period and the denominator of which is
the number of months in the fiscal period. Any such prorated bonus award will be
paid to the Employee within ninety (90) days following the end of the fiscal
period for which such award in made.
2.3 Stock Options. The Employee is presently the holder of stock
options granted under the Company's 1990 Stock Option Plan, which options are
subject to separate written Option Agreements. No such Option Agreement
constitutes an agreement of employment, and no provision of any such Option
Agreement shall operate to extend the term of the Employment hereunder. During
the Employment, the Employee will not be eligible for the grant of additional
options. Upon termination of employment, any unvested stock options shall be
controlled by the provisions set forth in Paragraph 5, herein below.
2.4 Vacation. The Employee shall be entitled to paid vacation in
accordance with the Company's vacation policy for senior executives, as in
effect from time to time.
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2.5 Automobile Allowance. The Employee shall be entitled to the
payment of a monthly allowance for automobile expenses throughout the Term of
the Employment, in the same amount and in accordance with the arrangements
currently in effect, or to such alternate automobile allowance of comparable
economic value as may be in effect from time to time.
2.6 Insurance and Other Benefits. The Employee shall be entitled to
participate in any life, medical, dental and/or disability insurance plans,
together with nay supplemental insurance plans, as my be offered by the Company
to its executive employees from time to time during the Employment. The Employee
shall be eligible to participate in any other fringe benefits as may be provided
by the Company to its executives, generally, during the Employment.
3. Termination of Employment. The Employment may be terminated prior to
the end of the Term specified in Paragraph 1.4 hereof upon the occurrence of any
of the following:
3.1 Death and Disability. The Employment shall automatically
terminate upon the death of the Employee. The Company shall have the right, but
not the obligation, to terminate the Employment at any time following
determination of the Employee's total disability (as defined pursuant to the
Company's long-term disability insurance plan covering the Employee if any such
plan is then in effect, or otherwise as determined by the Company's Board of
Directors). In the event of the Employee's total disability, the Employee's base
salary pursuant to Paragraph 2.1 hereof, shall be continued for the lesser of:
(i) the duration of the Employee's total disability, or (ii) the waiting period
determined in the Company's long-term disability policy then in effect or (iii)
one (1) year if no such policy is then in effect. In the event of the Employee's
death or total disability, the Employee or his estate shall be entitled to
receive (A) the Employee's base salary through the date of termination of the
Employment (as extended, in the case of total disability), plus (B) any Bonus
Award earned by the Employee as of the date of termination of the Employment
pursuant to Paragraph 2.2 hereof but not yet paid, plus (C) any other benefits
to which the Employee is entitled pursuant to the plans described in Paragraph
2.6, hereof. In the event of a partial disability that prevents the Employee
from effectively performing his duties and responsibilities hereunder, the
parties will attempt, in good faith, to negotiate a basis upon which the
Employee may continue as an employee of the Company in a reduced capacity and at
appropriately reduced compensation. If no such arrangement is agreed upon, the
Company may elect to treat the Employee's disability as a total disability for
purposes of this Paragraph 3.1.
3.2 Termination of Employment by the Company "For Cause". The Company
shall have the unrestricted right, but not the obligation, to terminate the
Employment at any time "For Cause" in the event of the Employee's (i) willful
and repeated neglect of his duties hereunder (other than as a result of a
physical disability not related to substance abuse), (ii) conviction of a crime
involving moral turpitude, (iii) commission of any act of fraud or dishonesty
against the Company, or (iv) breach of the
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Employee's obligations hereunder or under the Proprietary Information and
Inventions Agreement which, if curable, is not cured within ten (10) days
following notice thereof by the Company. The decisions to terminate the
Employment For Cause, to take other action or to take no action in response to
such occurrence shall be in the sole and exclusive discretion of the Company.
Upon any termination of the Employment by the Company For Cause, the Employee
shall be entitled to receive (A) the Employee's base salary through the date of
such termination, plus (B) any bonus Award earned by the Employee as of the date
of termination of the Employment pursuant to Paragraph 2.2 hereof but not yet
paid, plus any other benefits to which the Employee is entitled pursuant to the
plans described in Paragraph 2.6, hereof.
3.3 Other Termination of Employment by the Company. The Company may
terminate the Employment hereunder at any time for any reason. However, if the
Employment is terminated by the Company for any reason other than pursuant to
Paragraphs 3.1 or 3.2 hereof, the Employee shall be entitled to receive his base
salary through the date of termination of the Employment pursuant to this
Agreement. In addition, Employee shall be entitled to receive a severance
payment and other benefits as set forth in Paragraph 5, herein below.
3.4 Termination of Employment by the Employee for "Good Reason". The
Employee shall have the right to terminate the Employment at any time for "Good
Reason" in the event that, other than pursuant to Paragraphs 3.1 or 3.2 hereof,
the Company, without the Employee's prior written consent, (i) materially
breaches the terms of this Agreement in respect to the payment of compensation
or benefits or in any other material respect and such breach is not cured within
ten (10) days after notice thereof; (ii) requires the Employee , as a condition
to the Employment, to be based more than one hundred (100) miles form the
location where he is based as of the Effective Date; or (iii) requires the
Employee, as a condition to the Employment, to perform illegal or fraudulent
acts or omissions. If the Employee voluntarily terminates the Employment for
Good Reason pursuant to this Paragraph 3.4, the Employee shall be entitled to
receive the payments and other benefits specified in paragraph 3.3 hereof with
respect to a termination be the Company other than For Cause.
3.5 Termination of Employment by the Employee Without "Good Reason".
Upon any voluntary termination of the Employment by the Employee, other than for
Good Reason pursuant to Paragraph 3.4 hereof, the Employee shall be entitled to
receive (i) the Employee's base salary through the date of such termination,
plus (ii) any Bonus award earned by the Employee as of the date of termination
of the Employment pursuant to Paragraph 2.2 hereof but not yet paid, plus (iii)
any other benefits to which the Employee is entitled pursuant to the plans
described in Paragraphs 2.6, hereof.
4. Expenses. The Company will reimburse the Employee for those customary,
ordinary and necessary business expenses incurred by him in the performance of
his duties and activities on behalf of the Company. Such expenses will be
reimbursed upon presentation by the Employee of appropriate documentation to
substantiate such expenses
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pursuant to the policies and procedures of the Company governing reimbursement
of business expenses to its executives.
5. Compensation upon Expiration of Agreement. The Company agrees to
provide Employee with the severance benefits set forth in this Paragraph 5 upon
the occurrence of the following events, whichever occurs first: (i) when this
Agreement terminates, either as a result of the expiration of the Term set forth
in Paragraph 1.4 hereof, or pursuant to Paragraph 3.3 or 3.4 hereof, or (ii) in
the event there is a Change of Control (as defined herein) that occurs prior to
the expiration of the Term set forth in Paragraph 1.4. Both such events are
referred to herein as the "Termination Event."
5.1 Severance Payment. In the event there is a Termination Event (as
defined herein) Employee shall be entitled to receive severance payments (the
"Severance Payment") equal to his then current base salary for a period of
twenty-four (24) months (the "Severance Period") following the date of the
Termination Event.
5.2 Method and Manner of Payment. The Severance Payment shall be paid
in periodic installments during the Severance Period, in accordance with the
Company's payroll policy as in effect from time to time, and shall be in lieu of
any other severance payment or other benefit to which the Employee might
otherwise be entitled. Notwithstanding the foregoing, in the event there is a
Change of Control, then the Company agrees immediately to make a lump sum
payment of the balance of the Severance Payments remaining unpaid under
Paragraph 5.1, hereof. The Company will secure the payment of the Severance
Payment with an irrevocable letter of credit from a commercial bank that is
acceptable to both the Company and the Employee in the form of Exhibit 5.3 to
this Agreement (the "Letter of Credit") as of the effective date of a Change of
Control as defined in Paragraph 5.8 herein below.
5.3 Services Following Change of Control. Employee agrees that if an
acquiring entity desires Employee's services for a transition period, the
Employee will provide those services for up to three (3) months on the same
basis at the same salary rate in effect during the Term of this Agreement;
provided however, that in no event will Employee's commitment to provide
services extend past July 31, 2000.
5.4 Other Benefits. In addition, in the event of such a Termination
Event, the Company will, to the extent its plans permit, continue to provide to
the Employee coverage under the Company's life, medical and dental plans as
presently in place at the Effective Date of this Agreement or as changed from
time to time by the Company prior to the expiration of the Severance Period set
forth in Paragraph 5.1, above, but not any disability plan. In the event that
the Company may not continue to provide the benefit of any such plans, the
Severance Payment shall be increased by an amount equal to the Employee's cost
of providing such discontinued
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medical and dental coverages for himself and his dependents during the Severance
Period, assuming, where applicable, the timely compliance by the Employee with
any notification procedure required in order to obtain continuation coverage at
group rates. Following the expiration of the Term specified in Paragraph 1.4,
above, or if terminated earlier in accordance with Paragraph 3, above, Employee
will no longer be eligible for vacation or any other benefits except as set
forth in this Paragraph 5.4.
5.5 Automobile Allowance. Following the expiration of the Term
specified in Paragraph 1.4, above, or if terminated earlier in accordance with
Paragraph 3, above, the Employee shall be entitled to assume, and the Company
agrees to assign, the lease of any automobile provided to the Employee during
the Employment and the Company agrees to waive any ownership interest in the
lease agreement or in the automobile.
5.6 Bonus and Stock Options. The Employee shall not be entitled to
receive any bonus or incentive compensation award during the Severance Period.
Any unvested stock options previously granted to Employee pursuant to the 1990
Stock Option Plan shall become fully vested upon any Termination Event
occurring. All such stock option shall remain subject to the 1990 Stock Option
Plan and any written agreement evidencing such grant of stock options to the
Employee.
5.7 Unused Vacation. Employee shall be entitled to receive any
unused, accrued vacation time, paid as a lump sum payment, less applicable
taxes, to be paid on December 31, 1999.
5.8 Change of Control Defined. For purposes of this Agreement, and at
any time during the Term hereof, the term Change of Control shall mean any of
the following occurrences:
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of sixty-seven percent (67%) or more of the
combined voting power of the Company's then outstanding Voting Securities; or
(ii) Approval by shareholders of the Company, or the
consummation, of: (1) a merger, consolidation or reorganization involving the
Company; (2) a complete liquidation or dissolution of the Company; or (3) an
agreement for the sale or other disposition of all or substantially all of the
assets of the Company to any Person. For purposes of this Agreement the term
"substantially all" shall include but not be limited to any disposition or
series of dispositions of business units or other assets that collectively
generated at least 50% of the Company's revenues or operating
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income (defined as earnings before interest and taxes ("EBIT")) (as measured by
the Company's June 30, 1999 financial statements, a copy of which is attached
hereto as Exhibit 5.8); or
(iii) Xxxxxxx X. Xxxxx for any reason ceasing to be the Company's
Chairman and/or Chief Executive Officer.
5.9 Covenant Not to Compete. Except as provided below, Employee may
not during the two (2) year period following the date a Termination Event (the
"Restricted Period"), engage, directly or indirectly, as owner, partner,
stockholder, joint venturer consultant, or in any other capacity whatsoever
become financially interested, in any business providing the same or similar
cardiac testing or diagnostic imaging services as now being performed either by
Raytel Cardiac Services, Inc., Raytel Imaging Holdings, Inc., or Raytel Imaging
Network, Inc. (the "Restricted Services") anywhere within the continental United
States for services performed by Raytel Cardiac Services, Inc. (the "Cardiac
Testing Restricted Territory"), or within a ten (10) mile radius of any of the
existing facilities which are owned, operated or managed either by Raytel
Imaging Holdings, Inc. or Raytel Imaging Network, Inc. (the "Diagnostic Imaging
Restricted Territory").
(i) The provisions of this Paragraph 5.9 shall not pertain to or
restrict Employee from:
(a) owning up to 5 % of the capital stock of any
corporation whose stock is publicly traded; or
(b) performing the duties and responsibilities of a
full-time member of the teaching faculty at an accredited business school.
(c) providing management consulting or similar services
with respect to heart centers, cardiac catheterization laboratories and
physician practice groups.
(ii) If Employee elects not to exercise any unvested stock
options available to him under Paragraph 5.6 of this Agreement, the Restricted
Period set forth in this Paragraph 5.9 above shall end at the time Employee's
right to exercise said options expire.
(iii) Employee agrees that the time period provided for, and the
geographical area encompassed by, the covenant contained in Paragraph 5.9 are
necessary and reasonable in order to protect the Company in the conduct of the
business and the utilization of its assets.
(iv) If any court having jurisdiction at any time hereafter
shall hold any provision or clause of this Paragraph 5.9 to be unreasonable as
to its
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scope, territory or term, and if such court in its judgment or decree shall
declare or determine a lesser scope, territory or term which such court deems to
be reasonable, then such scope, territory or term, as the case may be, shall be
deemed automatically to have been reduced or modified to conform to that
declared or determined by such court to be reasonable.
(v) It is expressly agreed that monetary damages would be
inadequate to compensate the Company for any breach by Employee of the covenants
set forth in this Paragraph 5.9 and, accordingly, that in the event of any
breach or threatened breach by Employee of any such covenant, the Company will
be entitled to seek and obtain preliminary and permanent injunctive relief in
any court of competent jurisdiction, in addition to any other remedies at law or
in equity to which the Company may be entitled.
6. Release of Claims. Employee and his successors and assigns release the
Company and its shareholders, investors, directors, officers, employees, agents,
attorneys, legal successors and assigns from any and all claims, actions and
causes of action, whether now known or unknown, which Employee now has, or at
any time had, or shall or may have against any of the released parties based
upon or arising out of any matter, cause, fact, things, act or omission
whatsoever occurring or existing at any time to and including the effective date
of this Agreement, including, but not limited to, any claims of wrongful
termination, breach of contract, fraud, negligent misrepresentation, intentional
or negligent infliction of emotional distress, defamation or national origin,
race, age, sex, disability or other discrimination or harassment under the Civil
Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the
Americans With Disabilities Act, or other applicable state or federal law. The
foregoing release of claims shall not apply to any obligations arising under
this Agreement.
7. Conflicts of Interest. The Employee covenants, warrants and represents
to the Company that he has the full right and authority to enter into the
Employment and this Agreement, that he has no agreement, duty, commitment or
responsibility of any kind or nature whatsoever with or to any other person,
corporation, partnership, firm, company, joint venture or other entity which
would conflict in any manner whatsoever with any of his duties, obligations or
responsibilities to the Company pursuant to the Employment and/or this
Agreement. As a condition of the Employment and of the Company's entering into
this Agreement, the Company requires that the Employee not, and the Employee
hereby specifically agrees, covenants, warrants and represents that during the
Employment he will not, without the Company's express prior written consent,
accept any employment, contractual or other relationship of any kind or nature
whatsoever or engage in any association or dealing of any kind or nature
whatsoever with any person, corporation, partnership, firm, company, joint
venture, or other entity in violation of the Covenant Not to Compete set forth
in Paragraph 5.9 above; provided that nothing herein shall prohibit Employee
from owning up to five percent (5%) of the outstanding shares of any class of
equity securities of a corporation engaged in any such prohibited activity whose
securities
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are listed on a national securities exchange or quoted daily in the
over-the-counter listings of The Wall Street Journal.
8. Duties of the Employee After Any Notice of Termination of the
Employment. Following any notice of termination of the Employment, the Employee
shall fully cooperate with the Company in all matters relating to the winding up
of the Employee's work on behalf of the Company and the orderly transfer of all
pending work and of the Employee's duties and responsibilities to such other
person or persons as may be designated by the Company in its sole discretion.
Upon any termination of the Employment, the Employee will immediately deliver to
the Company any and all of the Company's property of any kind or nature
whatsoever in the Employee's possession, custody or control, including, without
limitation any and all Confidential Information as that term is defined in the
Proprietary Information and Inventions Agreement.
9. No Solicitation. During the Employment and for two (2) years following
any termination of the Employment, the Employee will not, without having
received prior written permission of the Company's Chief Executive Officer to do
so, directly or indirectly, on his own behalf or in the service of others, hire,
interfere with or raid the officers, employees, and/or agents of the Company or
in any manner attempt to persuade any such person to discontinue any
relationship with the Company. The Employee and the Company confirm that this
Paragraph 9 is reasonable and necessary for the protection of the trade secrets
and proprietary information of the Company.
10. Arbitration. Except as otherwise expressly provided in this Agreement,
any and all controversies, disputes and/or claims in any manner arising out of
or relating to this Agreement or the Employment shall be settled solely be
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Such arbitration proceeding shall take place in the
state and county of the Company's office where the Employee is based. Judgment
on any decision rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Each party shall bear its own attorney's fees and expenses
and other costs in any arbitration proceeding. All administrative fees and the
fee of the arbitrator shall be borne by the parties equally. Except as otherwise
expressly provided in this Agreement, the arbitration provisions set forth above
in this Paragraph 10 are intended by the Employee and by the Company to be
absolutely exclusive for all purposes whatsoever, and applicable to each and
every controversy, dispute and/or claim in any manner arising out of or relating
to this Agreement, and the Employment, the meaning, application and/or
interpretation of this Agreement, any breach or claimed breach thereof and/or
any voluntary or involuntary termination of this Agreement with or without
cause, including, without limitation, any such controversy, dispute and/or claim
which, if pursued through any state or federal court or administrative agency,
would arise at law, in equity and/or pursuant to statutory, regulatory and/or
common law rules, regardless of whether such dispute, controversy and/or claim
would arise in and/or from contract, tort or any other legal and/or equitable
theory or basis. Notwithstanding anything to the contrary contained in this
Paragraph 10, the Company shall at all times have and retain the full,
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complete and unrestricted right to immediate and permanent injunctive and other
relief as provided in Paragraph 11 below.
11. The Company's Right to Immediate Injunctive Relief. The Employee
recognizes, acknowledges and agrees that any breach or any threatened breach of
any Paragraph, term, provision or covenant of any of Paragraphs 1, 5.9, 6, 7, 8,
or 9 of this Agreement or of the Proprietary Information and Inventions
Agreement would cause irreparable injury to the Company which could not be
adequately compensable in monetary damages and that the remedy at law for any
such breach will be entirely insufficient and inadequate to protect the
Company's legitimate interests. Therefore, the Employee specifically recognizes,
acknowledges and agrees that the Company shall at any and all times be and
remain fully entitled to seek and obtain immediate temporary, preliminary and
permanent injunctive relief for any such breach or threatened breach from any
court of competent jurisdiction. The prevailing party in any action instituted
pursuant to this paragraph 11 shall be entitled to recover form the other party
its reasonable attorneys' fees and other expenses incurred in such litigation.
12. Survival of Certain Provisions of this Agreement. Except as may
otherwise be provided herein, each and all of the terms provisions and covenants
of each of paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 of this Agreement shall,
for any and all purposes whatsoever, survive any termination of the Employment,
regardless of whether such termination is by the Employee, the Company, by
expiration or otherwise.
13. General.
13.1 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of and be binding upon the Company, the Employee and each
and all of their respective heirs, legal representatives, successors and
assigns. The duties, responsibilities and obligations of the Employee under this
Agreement shall be personal and not assignable or delegable by the Employee in
any manner whatsoever to any person, corporation, partnerships, firm, company,
joint venture or other entity. The Employee may not assign, transfer, convey,
mortgage, pledge or in any other manner encumber the compensation or other
benefits to be received by him or nay rights which he may have pursuant to the
terms and provisions of this Agreement. Notwithstanding the foregoing, the
Company covenants and agrees to require that any successor to the Company and
any person acquiring the Company, the Company's shares, or assets of Company
through a Change of Control shall agree to honor the obligation of the Company
under this Agreement.
13.2 Waiver. No waiver of any breach of any warranty, representation,
agreement, promise, covenant, paragraph, term or provision of this Agreement
shall be deemed to be a waiver of any proceeding or succeeding breach of the
same or any other warranty, representation, agreement, promise, covenant,
paragraph, term and/or provision of this Agreement. No extension of the time for
the performance of any obligation or other act required or permitted by this
Agreement shall be deemed to be an extension of the time
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of the performance of any other obligation or any other act required or
permitted by this Agreement.
13.3 Sole and Entire Agreement. This Agreement, and the other
agreements referred to herein, including the Company's benefit plans, are the
sole, complete and entire contract, agreement and understanding between the
Company and the Employee concerning the Employment, the terms and conditions of
the Employment, the duration of the Employment, the termination of the
Employment and the compensation and benefits to be paid and provided by the
Company to the Employee pursuant to the Employment. Except as otherwise provided
herein, the Agreement supersedes any and all prior contracts, agreements, plans,
agreements in principle, correspondence, letters of intent, understandings, and
negotiations, whether oral or written, concerning the Employment, the terms and
conditions of the Employment, the duration of the Employment, the termination of
the Employment and the compensation and benefits to be paid by the Company to
the Employee pursuant to the Employment.
13.4 Amendments. No amendment, modification, waiver, or consent
relating to this Agreement will be effective unless and until it is embodied in
a written document signed by the Company and by the Employee.
13.5 Originals. The Agreement may be executed by the Company and by
the Employee in counterparts, each of which shall be deemed an original and
which together shall constitute one instrument.
13.6 Headings. Each and all of the headings contained in this
Agreement are for reference purposes only and shall not in any manner whatsoever
affect the construction or interpretation of this Agreement or be deemed a part
of this Agreement for any purpose whatsoever.
13.7 Savings Provision. To the extent that any provisions of this
Agreement or any Paragraph, term, provision, sentence, phrase, clause or word of
this Agreement shall be found to be illegal or unenforceable for any reason,
such Paragraph, term, provision, sentence, phrase, clause or word shall be
modified or deleted in such a manner as to make this Agreement, as so modified,
legal and enforceable under applicable laws. The remainder of this Agreement
shall continue in full force and effect.
13.8 Applicable Law. This Agreement and each and every provision of
this Agreement shall be interpreted solely pursuant to the internal laws of the
State of California without regard to any conflicts of law principles thereof.
13.9 Construction. The language of this Agreement and of each and
every paragraph, term and provisions of this Agreement shall, in all cases, for
any and all purposes, and in any and all circumstances whatsoever be construed
as a whole, according to its fair meaning, not strictly for or against the
Employee or the Company, and with no
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regard whatsoever to the identity or status of any person or persons who drafted
all or any portion of this Agreement.
13.10 Notices. Any notices to be given pursuant to this Agreement by
either party to the other party may be effected by personal delivery or by
registered or certified mail, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses stated below,
but each party may change its or his address by written notice to the other in
accordance with this Paragraph 13.10. Notices delivered personally shall be
deemed received on the date of delivery. Notices delivered by mail shall be
deemed received on the third business day after the mailing thereof.
Mailed notices to the Employee shall be addressed as follows:
Xxxxx Xxxxxxx
Simsbury, Connecticut
Mailed notices to the Company shall be addressed as follows:
Raytel Medical Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Executive Officer
13.10 Expenses. The Company shall pay, or reimburse the Employee for,
all reasonable attorney's fees incurred by Employee in connection with the
negotiation and preparation of this Agreement.
IN WITNESS THEREOF, the Company and the Employee have each duly executed
this Agreement as of the date first set forth above.
RAYTEL MEDICAL CORPORATION EMPLOYEE
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------------ ----------------------------------
Xxxxxxx X. Xxxxx Xxxxx Xxxxxxx
Chief Executive Officer
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