Board, and except during vacation periods and reasonable periods of absence due to sicknes ersonal injury, or other disability, the Executive shall devote substantially all of his time an ttention during normal business hours throughout the Term to...
EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT (the "Emplovment Agreement") is dated October [ ], 2015 and will be effective as of the Commencement Date (defined below), by and between Accolade, Inc. (the "Company"), and Xxxxxx Xxxxx (the "Executive"). W I TN E S S E T H: WHEREAS, the Company desires to employ the Executive and the Executive desires t be employed by the Company on the terms and conditions contained herein. NOW, THEREFORE, for and in consideration of the premises hereof and the mutua covenants contained herein, the parties hereto hereby covenant and agree as follows: I. Employment.The Company hereby employs the Executive, and the Executi hereby accepts such employment with the Company, commencing on November 2, 2015 (t "Commencement Date"), subject to the terms and conditions provided for herein.The peri beginning on the Commencement Date until the date upon which the employed by the Company shall be refened to herein as the "Term." Executive is no long The commencement Executive's employment shall be conditioned upon the completion of background and referen checks by the Company. 2. At-Will Employment. Unless otherwise expressly agreed to by the Executive an the Company in writing, the Executive's employment by the Company shall, notwithstandin anything to the contrary expressed or implied herein, be terminable by either party "at will," fo any reason or for no reason, but shall in all other respects be subject to the terms and condition of this Employment Agreement. 3. Duties; Board of Director Position; and Reporting Relationship. (a) fficer ("CEO") of Scope of Duties. The Executive shall be employed as Chief Executiv the Company and shall report to and be subject to the supervision an irecti.on of the Company's Board of Directors (the "Boarcf') during the Term. The Executiv hall faithfully and competently perform such duties and authorities, which shall not b nconsistent with his position as a CEO of the Company, and shall also perform and discharg uch other executive employment duties and responsibilities consistent with his position as CEO nd as the Board may from time to time reasonably prescribe. The power, authority, and duties o he Executive shall include, by way of example, and not by way of limitation, those duties, which ca enerally be described as being responsible for the day-to-day management of the Company ;mying out the mission, strategy, goals, and objectives established in collaboration with th oard, and in planning for the growth and profitability of the Company, including, but not limite o .supervising the Company's preparation and delivery to the Board of an annual operating pla nd budget consistent with the requirements of Section 5.3(a)(iv) of the Company's Secon mended and Restated Investor Rights Agreement. The duties of employment shall include suc dditional executive and managerial duties on behalf of the Company and its operations of
Board, and except during vacation periods and reasonable periods of absence due to sicknes ersonal injury, or other disability, the Executive shall devote substantially all of his time an ttention during normal business hours throughout the Term to the services required of hi ereunder. The Executive shall render his business services exclusively to the Company durin he Term, and shall use his. best efforts, judgment, and energy to improve and advance th usiness and interests of the Company in a manner consistent with the duties of his position rovided, however, that the foregoing shall not preclude the Executive from engaging in charitabl nd community affairs, sitting on the board of outside charitable or community organizations o p to three (3) corporations which are not a Competitive Business as defined in Section 4.1.3 o he Employee Non-Disclosure, Non-Competition and Non-Solicitation Agreement, including bu ot limited to Apptio, lnc., managing the Executive's personal investments, making passiv nvestments in other businesses or enterprises, or engaging in any other business activity that ot competitive with the business of the Company, so long as such activities do not materiall nterfere or conflict with his duties hereunder in connection with the Executive's employment b he Company. (b) Board Position. During the Term of the Employment Agreement, th Executive will serve as a member of the Board, subject to annual election and removal by th Company's stockholders as provided in the Company's bylaws. (c) Repotiing Relationship as CEO. The Executive shall report to the Board ll other Company employees shall report, directly or indirectly (through other senior executive s determined by the Executive), to the Executive. 4. Base Salary, Bonus, Withholding and Stock Option Grant. (a) Base Salary. As compensation for the performance of the services to b erformed by the Executive hereunder, the Company shall pay the Executive a starting base salar t the annual rate of, Four Hundred Thousand and 00/100 dollars ($400,000.00) (the "Bas alarv"), which shall be prorated for each calendar year during which the Executive shall not b mployed by the Company for the entire year (based on the number of days the Executive i mployed with the Company during such year). Any Base Salary payable hereunder shall be pai n regular intervals (but in no event less frequently than monthly), in arrears, in accordance wit he Company's payroll practices from time to time in effect for executive xxxxxxxxxxxx.Xx ase Salary is subject to adjustment, but not reduction, in the discretion of the Board based o our performance. (b) Bonus. In addition to the Base Salary described in Section 4(a) above, th Executive shall be eligible to receive an annual bonus of up to sixty-percent (60%) of the Bas Salary (the "Bonus") with the actual amount of such Bonus to be determined and approved b the Board in its sole discretion, based upon the achievement of certain operating and financia metrics that are mutually agreed upon by you and the Board. Any Bonus determined to b payable by the Board for 2015 shall be payable on a pro rata basis. For any subsequent partia year in which Executive works more than 6 months, the Bonus will accrue and shall be payabl
(b) be eligible to participate in tbe Company 40 I (k) savings plan, subject t the terms and conditions of such plan; (c) be eligible to participate in any medical and health plans or othe executive welfare benefit plans that may be provided by the Company for its senior executives i accordance with and subject to the provisions of any such plan, as the same may be in effec from time to time; (d) be eligible to take four (4) weeks of paid vacation taken at such times i coordination witb the needs of the Company as mutually agreed by the Executive and the Boar during each twelve-month period of the Term; (e) be eligible for sick leave, sick pay and disability benefits in accordan with the Company policy that may be applicable to senior executives from time to time; (f) be entitled to be covered by the Company's Director's and Officer' Liability insurance, at the expense of the Company, and such insurance is to apply so as to cove all times that the Executive is or was employed by the Company; and (g) be furnished office space, secretarial assistance, and such other facilitie and services within the Seattle metropolitan area as shall be suitable to the Executive's positio and adequate for the performance of his duties hereunder but consistent with the policies of th Company. The Executive agrees that in order to receive reimbursement or payment of an cost or expense authorized under Section 5 of tbis Employment Agreement, the Executive shal provide the Company with such documentation of each such cost and expense as the Compan shall reasonably require. Any reimbursements by the Company to the Executive of any eligible expense under this Employment Agreement that are not excludable from the Executive's income fo federal income tax purposes (the "Taxable Reimbursements") shall be made by no later than th earlier of tbe date on which they would be paid under the Company's normal policies and the las day of the taxable year of the Executive following the year in which the expense was incurred The amount of any Taxable Reimbursements during any taxable year of the Executive shall no affect the expenses eligible for reimbursement in any other taxable year of the Executive (excep for any life-term or other aggregate limitation applicable to medical expenses). The right t Taxable Reimbursement shall not be subject to liquidation or exchange for another benefit. 6. Non-Disclosure. Non-Competition and Non-Solicitation. As a condition o employment, the Executive shall execute and deliver to the Company's standard Employee Non Disclosure, Non-Competition and Non-Solicitation Agreement set forth in Exhibit B attache hereto, which is incorporated and made a part of this Employment Agreement. The Employe Non-Disclosure, Non-Competitionand Non-Solicitation shall becomeeffective upon it execution and delivery, which shall be on or before the Commencement Date.
(i) Death. The death of the Executive; Disability. The Disability (as defined below) of the Executive; (ii) For purposes of this Employment Agreement, the term "Disability" shall mean that if, a a result of the Executive's incapacity due to physical or mental illness, the Executive shall hav been absent from his duties with the Company on a full-time basis for three (3) consecutiv months or an aggregate of 120 days in any twenty-four month period, and within thirty (30) day after written notice of termination is given, the Executive shall not have returned to the full-xxx performance of the Executive's duties. (iii) TerminationFor Cause. Termination of the Executive' employment hereunder by the Company at any time for "Cause" (as termination to take effect immediately (except as set forth below); defined below), suc For purposes of this Employment Agreement, for "Cause" shall mean: (A) th Executive's intentional and continued gross misconduct or gross negligence resulting in materia and demonstrable financial or reputational injury to the Company; (B) the Executive's materia disregard of lawful instructions of the Board to Executive consistent with the Executive' responsibilities under this Employment Agreement relating to the business of the Company which shall mean actions taken by the Board in the exercise of its business judgment a memorialized in a duly adopted written resolution of the Board, in the minutes of a Compan Board meeting or in a written performance evaluation of the Executive delivered by the Board t Executive at the annual review of Executive's performance; (C) embezzlement; (D) th Executive's repeated abuse of alcohol or other drugs or controlled substances, or the commissio of an act of moral turpitude reasonably likely to bring significant disrepute to the Company o which adversely affects the Executive's ability to perform his duties hereunder, (E) conviction o the Executive of a felony or a plea of guilty or no contest to same, or any crime or offens involving fraud or moral turpitude; (F) the Executive's uncured breach of any material provisio of this Employment Agreement; or (G) the imposition of any material sanction by a professiona disciplinary organization that is applicable to the business of the Company and which wa imposed solely on account of the Executive's conduct; (H) the Executive's resignation hereunde during the Term provided, that if the Executive resigns for Good Reason as defined herein, suc resignation shall not be considered "Cause" hereunder so long as the Executive has given thirt days written notice to the Company of such breach and opportunity to cure any such Goo Reason. A termination of the Executive's employment for Cause by the Company shall b effected by the Company giving the Executive written notice ("Notice of Termination fO Cause") of the termination, setting forth in reasonable detail the specific conduct of th Executive that constitutes for Cause and the specific provision(s) of this Employment Agreemen on which the Company relies. A termination of employment by the Company for Cause shall b effective thirty (30) days following the date when the Notice of Termination for Cause is given provided, that Executive shall be given a reasonable opportunity to respond to such Notice o
would have otherwise become vested, exercisable, or payable had the Executive's employmen ot been so terminated for a period of nine (9) months immediately following such terminatio the "Equity Award Acceleration"); provided that if an award provides "deferred compensation or purposes of Section 409A (as defined in Section 7(d) below), such award will be paid at th ame time and in the same form as it would have been paid; provided further that, if th Executive's employment is terminated by the Company without Cause or the Executive resign or Good Reason within the one-year period following a Company Transaction (as such term efined in the Plan), the vesting acceleration provisions set forth in the agreement evidencing th xxxx shall govern, and (iii) the Company shall pay all Accrued Obligations (as defined below As a condition precedent to the Company's obligation to provide Executive (or Executive's heir nd executors) with the Salary Continuation and Equity Award Acceleration in this Section 7(b xecutive (or Executive's heirs and executors in the case of a termination pursuant to clause (i) o ection 7(a) above) shall be required to execute and not revoke a general release of claims (th Release"), in the form provided by the Company, within thirty (30) days of the date o ennination of employment. Salary Continuation shall begin on the first practical payroll dat fter the date the Release is executed and no longer subject to revocation (the "Release Effectiv ate"). Subject to Section 7(d) below, the Company shall pay the Salary Continuation i ccordance with its payroll practices from time to time in effect. If, following the end of the Term, the Executive breaches any of the provisions contained in fhi Employment Agreement, including the terms of the Non-Disclosure, Non-Competition and Non Solicitation Agreement set forth in Exhibit C, all payments of Salary Continuation shal immediately cease. Executive acknowledges and agrees that the Salary Continuation payabl hereunder is payable partially in consideration of Executive's executing and delivering th Release, the Executive's continued observance following termination of employment of th restrictive covenants in the Non-Disclosure, Non-Competition and Non-Solicitation Agreemen as set forth therein and such other good and valuable consideration as set forth herein. (b) Notwithstanding anything to the contrary expressed or implied herein except as required by applicable law and except as set forth in Section 7(b) above, the Compan (and its affiliates) shall not be obligated to make any payments to the Executive or on his behalf of whatever kind or nature, by reason of the Executive's cessation of employment (including without limitation, by reason of termination of the Executive's employment by the Company fo "Cause" pursuant to Section 7(a)(iii)), other than (i) such amounts, if any, of his Base Salary an Bonus as shall have accrued and remained unpaid as of the date of said cessation, (ii) such othe amounts, if any, which may be then otherwise payable to the Executive from the Company' benefits plans or reimbursement policies, and (iii) any accumulated and earned vacation not used as of the date of the Executive's termination of employment with the Company, provided that for the purposes of the calculation of vacation pay owed to the Executive, only the unuse vacation days in the year of termination shall be taken into consideration (i.e., vacation not use in prior years cannot be accrued, carried over, or otherwise taken into consideration (collectively, the "Accrued Obligations"). (c) To the extent that any payments or benefits payable hereunder ar
(i) to the extent any such payment or benefit to be provided is not "deferred compensation" for purposes of Section 409A of the Internal Revenue Code of 1986, a amended, and any regulations or guidance issued thereunder ("Section 409A"), then such payment or benefit shall commence upon the first scheduled payment date immediately after the Release Effective Date. The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Employment Agreement had such payments commenced immediately upon the Executive's termination of employment, and any payments made thereafter shall continue as provided herein and (ii) to the extent any such cash payment or continuing benefit to b provided is "deferred compensation" for purposes of Section 409A, then such payments o benefits shall be made or commence upon the thirtieth (30th) day following the termination of th Executive's employment. The first such cash payment shall include payment of all amounts tha otherwise would have been due prior thereto under the terms of this Employment Agreement ha such payments commenced immediately upon the termination of the Executive's employmen and any payments made thereafter shall continue as provided herein. (d) No interest shall accrue on or be paid with respect to any portion of an payments hereunder. (e) Upon the termination of the Executive's employment herennder for an reason whatsoever, the Executive shall be entitled to the continuation of group health pla benefits to the extent authorized by and consistent with 29 U.S.C. §1161 et seq. (commonl known as COBRA) at his sole cost and expense. 8. Non-Assignability. (a) Neither this Employment Agreement nor any right or interest hereunde hall be assignable by the Executive or his beneficiaries or legal representatives without th ompany's prior written consent; provided, however, that nothing in this Section 8(a) shal reclude the Executive from designating one or more beneficiaries to receive any benefit payabl ereunder upon his death or incapacity. (b) Except as required by law, no right to receive payments under thi mployment Agreementshallbe subjectto anticipation,commutation,alienation,sale ssigmnent, encumbrance, charge, pledge, or hypothecation or to exclusion, attachment, levy o imilar process or assignment by operation of law, and any attempt, voluntary or involuntary, t ffect any such action shall be null, void, and of no effect. 9. Binding Effect.Without limiting or diminishing the effect of Section 8 hereof this Employment Agreement shall inure to the benefit of and be binding upon the parties heret and their respective heirs, successors, legal representatives, and assigns. 10. Notices.Any notice required or permitted to be given under this Employm
to such other address or addresses as either party shall have designated in writing to the oth party hereto. II. Governing Law and Disputes. This Employment Agreement shall be governed b and construed in accordance with the laws of the Commonwealth of Pennsylvania withou reference to principles of conflicts of law. Subject to the provisions of Section 6 of the Employe Non-Disclosure, Non-Competition and Non-Solicitation Agreement permitting the obtaining o injunctive relief in court, the parties to this Employment Agreement agree that all claims disputes or controversies arising between them, whether in contract or in tort, including but no limited to any claim of breach of any provision of this Employment Agreement, (hereinafter al of the aforementioned shall be collectively referred to as a "Claim" or "Claims"), shall be full and finally settled by arbitration in accordance with the Commercial Arbitration Rules of th American Arbitration Association then in effect (the "AAA Rules"), conducted by one arbitrato either mutually agreed upon by the Company and Executive or chosen in accordance with th AAA Rules, except that the parties thereto shall have any right permitted by the Federal Rules of Civil Procedure for a period commencement of such arbitration and the arbitrator thereof shall to discovery as would b of 90 days following th resolve any dispute whic arises in connection with such discovery. The statute of limitations applicable to th commencement of a lawsuit will apply to the commencement of arbitration under this provision. 12. Severability.If any part of this Employment Agreement is held by a court o competent jurisdiction to be invalid, illegible or incapable of being enforced in whole or in par by reason of any rule or law or public policy, such part shall be deemed to be severed from th remainder of this Employment Agreement for the purpose only of the particular lega proceedings in question and all other covenants and provisions of this Employment Agreemen shall in every other respect continue in full force and effect and no covenant or provision shall b deemed dependent upon any other covenant or provision. 13. Waiver. Failure to insist upon strict compliance with any of the terms, covenant or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shal any waiver or relinquishment of any right or power hereunder at any one or more times b deemed a waiver or relinquishment of such right or power at any other time or times. 14. Entire Agreement; Modifications. This Employment Agreement, inclusive of al schedules and exhibits, shall constitute the entire and final expression of the agreement of th parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, between the parties hereto with respect to the subject matter hereof. This Employmen Agreement may be modified or amended only by an instrument in writing signed by both partie hereto. 15. Countemarts. This Employment Agreement may be executed in two or mor counterparts, each of which shall be deemed an original, but all of which together shall constitut one and the same instrument.
his performance under this Section 18, including but not limited to reasonable attorneys' fees a costs, to the extent permitted by law. 19. Indemnification; D&O Insurance. The Company shall indemnify Executi against all claims arising out of Executive's actions or omissions occurring during Executiv employment with the Company and/or service as a member of the Board pursuant to t Company's Directors and Officers Liability and general insurance policies. The Company agr that it will continue to maintain Directors and Officers Liability and general insurance policies fund the indemnity described above in the same amount and to the same extent it maintains su coverage for the benefit of its other officers and directors. 20. NO TRIAL BY JURY. THE PARTIES (BY THEIR ACCEPTANCE HEREO HEREBY KNOWINGLY, IRREVOCABLY,VOLUNTARILY,AND INTENTIONALL WAIVE ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO AN DISPUTES BASED UPON OR ARISING OUT OF THIS AGREEMENT. 21. Compliance with Section 409A. (a) It is the intention of both the Company and the Executive that the benefit and rights to which the Executive could be entitled pursuant to this Employment Agreemen comply with Section 409A, to the extent that the requirements of Section 409A are applicabl thereto, and the provisions of this Employment Agreement shall be construed in a manne consistent with that intention. If the Executive or the Company believes, at any time, that an such benefit or right that is subject to Section 409A does not so comply, it shall promptly advis the other and shall negotiate reasonably and in good faith to amend the terms of such benefit and rights such that they comply with Section 409A (with the most limited possible economi effect on the Executive and on the Company). (b) To the extent required to comply with Section 409A, no payment o benefit required to be paid under this Employment Agreement on account of termination of th Executive's employment shall be made unless and until the Executive incurs a "separation from service" within the meaning of Section 409A. (c) Neither the Company nor the Executive, individually or in combination may accelerate any payment or benefit that is subject to Section 409A, except in compliance wit Section 409A and the provisions of this Employment Agreement, and no amount that is subjec to Section 409A shall be paid prior to the earliest date on which it may be paid without violatin Section 409A. (d) For purposesof applying the proviSions of Section 409A to thi Employment Agreement, each separately identified amount to which the Executive is entitle under this Employment Agreement shall be treated as a separate payment. In addition, to th extent permissible underSection 409A, any series of installment payments under thi Employment Agreement shall be treated as a right to a series of separate payments. Whenever
