EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of January 4,
2000, by and among MEDICAL MANAGER CORPORATION, a Delaware corporation (the
"Company"), CAREINSITE, INC., a Delaware corporation and majority-owned
subsidiary of the Company ("CareInsite"), and XXXXXX X. XXXX ("Executive").
WHEREAS, each of the Company and CareInsite desires to employ
Executive on a full-time basis and Executive desires to be so employed by the
Company and CareInsite;
NOW, THEREFORE, in consideration of the mutual covenants in
this Agreement, the parties agree as follows:
1. Effectiveness of Agreement and Employment of Executive.
1.1. Effectiveness of Agreement. This Agreement shall become
effective as of the date first written above (the "Effective Date").
1.2 Employment by the Company and CareInsite. (a) The Company
hereby employs Executive as its President and CareInsite hereby employs
Executive as its Chief Executive Officer and Executive hereby accepts such
employment with each of the Company and CareInsite. Executive shall report to,
and perform such duties and services for the Company, CareInsite, and their
respective subsidiaries and affiliates (such subsidiaries and affiliates,
collectively, "Affiliates") commensurate with such positions as may be
designated from time to time by, the Chairman of the Board of Directors of the
Company (the "Board") and of the Board of Directors of CareInsite (the
"CareInsite Board"), as the case may be. Each of the Company and CareInsite
shall, subject to its fiduciary duties, use its best efforts to appoint
Executive as a member of the Board and the CareInsite Board, respectively, as of
the Effective Date. During the Employment Period (as defined below), each of the
Company and CareInsite shall, subject to its fiduciary duties, use its best
efforts to include Executive in management's nominees for election, and
recommend the election of Executive, as a member of the Board and of the
CareInsite Board. In the event that the employment of Executive with the Company
or CareInsite (or both) is terminated for any reason, Executive agrees that he
will promptly resign from the Board or the CareInsite Board (or both), as the
case may be.
(b) Executive shall perform his duties hereunder at the
Company's and CareInsite's headquarters at 000 Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxx
Xxxxxx; provided, however, that Executive shall be required to travel on
business on a reasonable basis in connection with the performance of his duties
hereunder. Executive shall use his best and most diligent efforts to promote the
interests of the Company, CareInsite and the Affiliates, and shall devote all of
his business time and attention to his employment under this Agreement.
2. Compensation and Benefits.
2.1. Salary. The Company shall pay Executive for services
during his employment under this Agreement a base salary at the annual rate of
$250,000 (as it may be increased pursuant to this Section 2.1, the "Company Base
Salary"). In addition, CareInsite shall pay Executive for services during his
employment under this Agreement a base salary at the annual rate of $250,000 (as
it may be increased pursuant to this Section 2.1, the "CareInsite Base Salary").
Such Company Base Salary or CareInsite Base Salary may be increased (but not
decreased) from time to time in the sole discretion of (i) the Board or
Compensation Committee of the Board in the case of the Company Base Salary or
(ii) the CareInsite Board or Compensation Committee of the CareInsite Board in
the case of the CareInsite Base Salary. The Company Base Salary and CareInsite
Base Salary shall be payable in equal installments, no less frequently than
monthly, pursuant to the Company's or CareInsite's, as the case may be,
customary payroll policies in force at the time of payment, less any required or
authorized payroll deductions.
2.2. Benefits. During the Employment Period, Executive shall
be entitled to participate, on the same basis and at the same level as other
senior officers of the Company in any group insurance, hospitalization, medical,
health and accident, disability, fringe benefit and tax-qualified retirement
plans or programs of the Company now existing or hereafter established to the
extent that he is eligible under the general provisions thereof.
2.3. Expenses. Pursuant to the Company's or CareInsite's
customary policies in force at the time of payment, Executive shall be promptly
reimbursed, against presentation of vouchers or receipts therefor, for all
authorized expenses properly and reasonably incurred by him on behalf of the
Company, CareInsite or their Affiliates in the performance of his duties
hereunder.
2.4 Relocation. The Company and Executive understand that
Executive currently maintains a residence in New Canaan, Connecticut, but that
Executive will relocate to an area convenient to the corporate headquarters in
Elmwood Park, New Jersey. Upon the presentation of invoices, the Company shall
reimburse, on an after tax basis, Executive's reasonable out-of-pocket expenses
related to the relocation of him and his family to such area. In addition,
during the period while Executive is maintaining his current residence and his
new residence (which may be a temporary residence or hotel accommodations),
which period shall not exceed six months, the Company shall reimburse Executive
for the cost of the lower of (i) his monthly mortgage payment for his existing
home in New Canaan, Connecticut and (ii) his monthly mortgage or rental payment
on his new home or temporary living arrangement.
2.5 Vacation. Executive shall be entitled to vacation time
consistent with the Company's vacation policies. The date or dates of such
vacations shall be selected by Executive having reasonable regard to the
business needs of the Company and CareInsite.
2.6 Car Allowance. During the Employment Period, the Company
shall provide Executive with a car allowance in accordance with Company policy.
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2.7 Bonus. With respect to each 12 month period (the
"Performance Period") during the Employment Period, Executive shall be entitled
to receive (i) a bonus (the "Company Bonus") of up to $250,000 in the event that
the Company has attained certain specified performance goals and (ii) a bonus
(the "CareInsite Bonus") of up to $250,000 in the event that CareInsite has
attained certain specified performance goals. The performance goals shall be
established by the Compensation Committee of the Board or the Compensation
Committee of the CareInsite Board, as applicable, and shall be communicated to
Executive prior to the commencement of each Performance Period or, in the case
of the first Performance Period, within 30 days of the Effective Date. The
determination as to whether the performance goals have been attained shall be
made by the Compensation Committee of the Board or the Compensation Committee of
the CareInsite Board, as the case may be, (i) in its sole and absolute
discretion to the extent the performance goals are not quantifiable and (ii) on
the basis of a report prepared by the Chief Financial Officer of the Company or
CareInsite, as applicable, to the extent the performance goals are quantifiable.
Such report shall be presented to the applicable Compensation Committee within
30 days of the last day of the Performance Period. Payment of the Company Bonus
and the CareInsite Bonus, if any, shall be made as soon as practicable following
the presentation by the Chief Financial Officer; but in no event more than 30
days thereafter, provided, that, except as set forth in Section 5 below,
Executive remains in the employ of the Company or CareInsite on the payment
date. In the event that the Company or CareInsite reasonably determines that the
Company Bonus or the CareInsite Bonus may be subject to the limitation on
deductible compensation set forth in Section 162(m) of the Internal Revenue Code
of 1986, as amended, the Company or CareInsite may defer the payment of the
Company Bonus or CareInsite Bonus (or portion thereof) until the limitation no
longer applies to such payment (or portion thereof).
2.8 Loan. As soon as practicable following the Effective Date,
the Company or CareInsite shall make a full recourse loan (the "Loan") to
Executive in the principal amount of $600,000. The Loan shall be evidenced by a
promissory note to be executed by Executive in a form satisfactory to the
Company or CareInsite, as applicable, and shall be secured by any options to
purchase shares of the Company's or CareInsite's common stock held by Executive.
The Loan shall bear interest at a rate equal to the lowest rate necessary to
avoid characterization of the Loan as a "below-market loan" within the meaning
of Section 7872 of the Internal Revenue Code of 1986, as amended, and shall
become due and payable on the earlier of (i) any demand by the Company after 30
days following the termination of Executive's employment with the Company and
CareInsite for any reason and (ii) the second anniversary of the date on which
the Loan is made.
3. Employment Period.
Executive's employment under this Agreement shall commence as
of the Effective Date, and shall terminate on the fifth anniversary thereof,
unless terminated earlier pursuant to Section 5 (the "Employment Period").
Unless written notice of either party's desire to terminate the Employment
Period has been given to the other party at least 30 days prior to the
expiration of the Employment Period (or any one-month renewal thereof
contemplated by this sentence), the term of this Agreement shall be
automatically renewed for successive one-month periods.
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4. Stock Option.
4.1 Subject to obtaining the approval of the Stock Option
Committee of the Board, Executive shall be granted (i) an option (the "Company
Class A Stock Option") to purchase 250,000 shares of the Company's common stock
pursuant to the Company's Amended and Restated 1989 Class A Stock Option Plan
(the "Class A Plan") and the terms of a stock option agreement to be entered
into between the Company and Executive (the "Company Class A Stock Option
Agreement") and (ii) an option (the "Company Class B Stock Option" and
collectively with the Company Class A Stock Option, the "Company Stock Options")
to purchase 200,000 shares of the Company's common stock pursuant to the
Company's Amended and Restated 1989 Class B Stock Option Plan (the "Class B
Plan") and the terms of a stock option agreement to be entered into between the
Company and Executive (the "Company Class B Stock Option Agreement" and together
with the Company Class A Stock Option Agreement, the "Company Stock Option
Agreements"). The Company Stock Option Agreements shall contain the terms
described in this Section 4 and such other terms as are not any less favorable
than those applicable to other executive officers of the Company. Subject to
Executive's remaining in the employ of the Company or CareInsite (except as set
forth in Sections 4.3, 5.2, 5.3 and 5.5 below), the Company Stock Options shall
be exercisable in accordance with the following schedule:
Anniversary of % of Stock
Date of Grant Option Exercisable
------------- ------------------
1st 20%
2nd 40%
3rd 60%
4th 80%
5th 100%
In the event of a Change in Control (as defined below) of the Company or
CareInsite, notwithstanding anything to the contrary contained in the Class A
Plan or Class B Plan, the Company Stock Options shall be treated in the manner
described in Section 4.3 below. Executive will be eligible to receive future
grants of options to purchase shares of the Company's common stock at the
discretion of the Stock Option Committee of the Board.
4.2 Subject to obtaining the approval of the
Compensation Committee of CareInsite, Executive shall also be granted an option
(the "CareInsite Stock Option", collectively with the Company Stock Options, the
"Stock Options") to purchase 450,000 shares of the common stock of CareInsite
pursuant to the terms of CareInsite's 1999 Officer Stock Option Plan (the
"CareInsite Plan") and a stock option agreement to be entered into between
CareInsite and Executive (the "CareInsite Stock Option Agreement" and, together
with the Company Stock Option Agreements, the "Stock Option Agreements"). The
CareInsite Stock Option Agreement shall contain the terms described in this
Section 4 and such other terms as are not any less favorable than those
applicable to other executive officers of the Company. Subject to Executive's
remaining in the employ of the CareInsite or the Company (except as set forth in
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Sections 4.3, 5.2, 5.3 and 5.5 below), the CareInsite Stock Option shall be
exercisable in accordance with the following schedule:
Anniversary of % of
Date of Grant Stock Option Exercisable
------------- ------------------------
1st 20%
2nd 40%
3rd 60%
4th 80%
5th 100%
provided, however, that no portion of the CareInsite Stock Option shall become
vested and exercisable prior to December 15, 2001, (on such date, the portion of
the CareInsite Stock Option shall become vested and exercisable to the extent
that such portion would have become exercisable by virtue of the above vesting
schedule). In the event of a Change in Control of CareInsite or the Company,
notwithstanding anything to the contrary contained in the CareInsite Plan, the
CareInsite Stock Option shall be treated in the manner described in Section 4.3
below. Executive will be eligible to receive future grants of options to
purchase shares of CareInsite's common stock at the discretion of the
Compensation Committee of the CareInsite Board.
4.3 Change in Control. (a) In the event that (x) a Change in
Control (as defined below) of the Company or, to the extent set forth in Section
4.3(b)(B), CareInsite occurs during the Employment Period and (y)(i) except in
the case of an event specified in Section 4.3(b)(D), Executive is still employed
by the Company or CareInsite, as applicable, or the acquiring company on the one
year anniversary of the date on which such Change in Control occurs or (ii) the
Employment Period is terminated by CareInsite, the Company or the acquiring
company without Cause or by Executive for Good Reason during such one year
period, the Stock Options, to the extent not vested, shall become vested and
exercisable (x) on the one year anniversary of the date on which such Change in
Control occurs or the date of the Change in Control if the Change in Control is
an event specified in Section 4.3(b)(D) (in the case of clause (i) above) or (y)
on the effective date of such termination of the Employment Period (in the case
of clause (ii) above). In the event of the occurrence of the circumstances
described in the preceding sentence, the Company or CareInsite or the acquiring
company, as the case may be, shall also have the obligations specified in
Sections 5.3 and 5.5 of this Agreement.
(b) For purposes of this Agreement and the Stock Option
Agreements, a "Change in Control" of the Company or CareInsite, as the case may
be, shall be deemed to have occurred if:
(A) Both (i) any person, entity or group shall have
acquired, in one or more transactions, the beneficial
ownership of at least 50 percent of the voting power of
the outstanding voting securities of the Company,
excluding Xxxxxx X. Wygod and his affiliates, and (ii)
following such acquisition of 50 percent voting power,
Xxxxxx X. Wygod shall no longer be the Chairman of the
Board of the Company or CareInsite or a senior
executive
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officer of the acquiring company of 50 percent voting
power, in each case with duties and responsibilities
greater than or substantially equivalent to those prior
to such acquisition of 50 percent voting power; or
(B) Only in the event that CareInsite has assumed all of
the obligations under this Agreement, both (i) any
person, entity or group shall have acquired, in one or
more transactions, the beneficial ownership of at least
50 percent of the voting power of the outstanding
voting securities of CareInsite, excluding Xxxxxx X.
Wygod and his affiliates, and (ii) following such
acquisition of 50 percent voting power, Xxxxxx X. Wygod
shall no longer be the Chairman of the Board of
CareInsite or a senior executive officer of the
acquiring companyof 50 percent voting power, in each
case with duties and responsibilities greater than or
substantially equivalent to those prior to such
acquisition of 50 percent voting power; or
(C) The sale of all or substantially all of the assets of
the Company or, if CareInsite assumes all of the
obligations under this Agreement, the sale of all or
substantially all of the assets of CareInsite
(including, without limitation, by way of merger,
consolidation, lease or transfer) to a person, entity
or group other than Xxxxxx X. Wygod or his affiliates
in a transaction (except for a sale-leaseback
transaction) (x) where the Company, CareInsite or the
holders of the common stock of the Company or
CareInsite, as the case may be, do not receive (i)
voting securities representing a majority of the voting
power entitled to vote on a regular basis for the board
of directors of the acquiring entity or of an affiliate
which controls the acquiring entity, or (ii) securities
representing a majority of the equity interest in the
acquiring entity or of an affiliate that controls the
acquiring entity, if other than a corporation and (y),
following such sale of assets, Xxxxxx X. Wygod shall no
longer be the Chairman of the Board of the Company or
CareInsite or a senior executive officer of the
acquiring entity, in each case with duties and
responsibilities greater than or substantially
equivalent to those prior to such sale of assets; or
(D) A complete liquidation or dissolution of the Company
and CareInsite shall have occurred.
4.4 Future Equity Grants. In the event that either the Company
or CareInsite effects a public offering of the securities of a subsidiary
thereof, Executive shall receive equity in such subsidiary on a basis which is
substantially similar to the equity participation of other senior executive
officers of the Company or CareInsite, as applicable (other than the Chairman of
the Board or of the CareInsite Board), as applicable.
5. Termination.
5.1. Termination by the Company for Cause. (a) The
Employment Period may be terminated at any time by the Company or CareInsite for
Cause (as defined below).
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Upon such a termination, the Company and CareInsite shall have no obligation to
Executive other than (i) the payment of Executive's earned and unpaid Company
Base Salary and CareInsite Base Salary to the effective date of such termination
and (ii) Executive shall not be entitled to any additional rights or vesting
with respect to the Stock Options following the effective date of such
termination
(b) For purposes of this Agreement, the term "Cause" shall
mean any of the following:
1. A willful failure of Executive to perform
his duties hereunder in any material respect which failure is not cured
by Executive within 30 days following written notice from the Company
or CareInsite detailing such failure;
2. Any willful misconduct by Executive
relating, directly or indirectly, to the Company, CareInsite or any of
their Affiliates, which misconduct, if susceptible to cure, is not
cured by Executive within 30 days following written notice from the
Company or CareInsite detailing such misconduct;
3. Any material breach by Executive of this
Agreement, including, without limitation, Section 6 hereof, which
breach, if susceptible to cure, is not cured by Executive within 30
days following written notice from the Company or CareInsite detailing
such breach; or
4. Executive's commission of a common law
fraud against the Company, CareInsite or any of their Affiliates or
conviction of a felony.
5.2 Death and Disability. (a) The Employment Period may be
deemed terminated by the Company and CareInsite upon the death of Executive or
Executive becoming Disabled (as defined below), and the Company and CareInsite
shall have the following obligations to Executive or Executive's estate (but no
other obligation to Executive or Executive's estate pursuant to this Agreement):
(i) a continuation of the Company Base Salary and
CareInsite Base Salary for a period (the "Applicable
Period") commencing on the date of termination and
ending on the fourth anniversary of the date of
termination, payable in accordance with the fourth
sentence of Section 2.1,
(ii) a continuation of the benefits to which Executive is
entitled pursuant to the Welfare Plans (as defined in
Section 5.3(a)(ii) below) for the Applicable Period,
(iii) the Company Bonus and CareInsite Bonus that would have
been payable to Executive pursuant to Section 2.7 for
each year (or portion thereof) during the Applicable
Period, payable at the time that such bonuses are
required to be paid pursuant to Section 2.7, such
Company Bonus and CareInsite Bonus to be equal to the
highest Company Bonus and
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CareInsite Bonus paid to Executive for any of the
prior three years or, if shorter, during the Employment
Period, and
(iv) the Stock Options shall remain outstanding and continue
to vest, and shall otherwise be treated for purposes of
the terms and conditions thereof, as if Executive
remained in the employ of the Company or CareInsite
during the Applicable Period
; provided, however, that the continuation of such salary, welfare benefits and
the continuation of vesting and exercisability of the Stock Options shall cease
on the occurrence of a material breach of the covenants contained in Section 6
below; and provided further, however, that Executive's eligibility to continue
to participate in the Welfare Plans shall cease at such time as Executive is
offered comparable coverage with a subsequent employer. Any payments that may be
required to be made by the Company or CareInsite pursuant to this Section 5.2
shall first be applied to the repayment of the principal amount of and interest
on the Loan.
(b) For purposes of this Agreement, Executive shall be
"Disabled" if (i) Executive becomes incapacitated by bodily injury or disease
(including as a result of mental illness) so as to be unable to regularly
perform the duties of his position for a period in excess of 180 days in any
consecutive twelve-month period, (ii) a qualified independent physician mutually
acceptable to the Company, CareInsite and Executive determines that Executive is
mentally or physically disabled so as to be unable to regularly perform the
duties of his position and such condition is expected to be of a permanent
duration or (iii) he is deemed "disabled" for purposes of the long term
disability insurance policy maintained by the Company for the Executive.
5.3 Termination by the Company or CareInsite Without Cause.
(a) The Employment Period may be terminated at any time by the Company or
CareInsite without Cause. If the Company or CareInsite (or both) terminates the
Employment Period without Cause, the Company or CareInsite, as the case may be,
shall have the following obligations to Executive (but excluding any other
obligation to Executive pursuant to this Agreement):
(i) a continuation of the Company Base Salary or CareInsite
Base Salary, as the case may be, for a period (the
"Severance Period") commencing on the date of
termination and ending on the third anniversary of the
date of termination, payable in accordance with the
fourth sentence of Section 2.1,
(ii) Executive shall be eligible to continue to participate
during the Severance Period on the same terms and
conditions that would have applied had he remained in
the employ of the Company or CareInsite during the
Severance Period in all health, medical, dental and
other welfare plans provided to Executive pursuant to
Section 2.2 at the time of such termination and which
are provided by the Company or CareInsite to its
employees following the date of termination ("Welfare
Plans"),
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(iii) the Company Bonus and CareInsite Bonus that would have
been payable to Executive pursuant to Section 2.7 for
each year (or portion thereof) during the Severance
Period, payable at the time that such bonuses are
required to be paid pursuant to Section 2.7, such
Company Bonus and CareInsite Bonus to be equal to the
highest Company Bonus and CareInsite Bonus paid to
Executive for any of the prior three years or, if
shorter, during the Employment Period, and
(iv) the Company Stock Options or the CareInsite Stock
Option, as the case may be, shall remain outstanding
and continue to vest, and shall otherwise be treated
for purposes of the terms and conditions thereof, as
if Executive remained in the employ of the Company or
CareInsite, as the case may be, during the Severance
Period, except that Section 4.3 shall apply in the
event that the Executive's termination of employment
without Cause occurs during the one year period
following a Change in Control
; provided, however, that the continuation of such salary, welfare benefits and
the vesting and exercisability of the Stock Options shall cease on the
occurrence of any material breach of the covenants contained in Section 6 below;
provided further, however, that Executive's eligibility to participate in the
Welfare Plans shall cease at such time as Executive is offered comparable
coverage with a subsequent employer. If Executive is precluded from
participating in any Welfare Plan by its terms or applicable law, the Company or
CareInsite shall provide Executive with benefits that are reasonably equivalent
in the aggregate to those which Executive would have received under such plan
had he been eligible to participate therein. Anything to the contrary herein
notwithstanding in Section 5.2 or this Section 5.3, the Company shall have no
obligation to continue to maintain any Welfare Plan solely as a result of the
provisions of this Agreement. Any payments that may be required to be made by
the Company or CareInsite pursuant to this Section 5.3 shall first be applied to
the repayment of the principal amount of and interest on the Loan.
(b) Notwithstanding anything to the contrary in this
Agreement, in the event that the Company determines that it is in the best
interest of the Company and its stockholders to terminate Executive's employment
with the Company due to a corporate transaction or the potential for a conflict
of interest with CareInsite, such a termination shall not constitute a
termination without Cause so long as CareInsite assumes the Company's
obligations to pay the Company Base Salary and Company Bonus and to provide the
other benefits contemplated in Section 2 in accordance with its plans and
policies.
5.4 Liquidated Damages. Executive acknowledges that the
payment of all amounts and benefits due to him under Section 5.3 or Section 5.5
resulting from a termination of the Employment Period by the Company or
CareInsite without Cause or by Executive for Good Reason (as defined below) are
in lieu of any and all claims that Executive may have against the Company,
CareInsite or any of their Affiliates (other than benefits under the Company's
or CareInsite's employee benefit plans that by their terms survive termination
of employment, benefits under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, and rights to indemnification under certain indemnification
arrangements for officers of the
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Company), and represent liquidated damages (and not a penalty). The Company may
request that Executive confirm such acknowledgment in writing prior to the
receipt of such benefits.
5.5 Termination by Executive for Good Reason. (a) Executive
may terminate his employment with the Company or CareInsite (and the Employment
Period with respect to the Company or CareInsite will be terminated) for Good
Reason. If Executive terminates his employment with the Company or CareInsite
for Good Reason, Executive shall be entitled to the same salary and welfare
benefit continuation, bonus, and the continuation of vesting and exercisability
of the Stock Options that he would have been entitled to receive under Section
5.3 if the Employment Period were terminated by the Company or CareInsite
without Cause.
(b) For purposes of this Agreement, the term "Good Reason"
shall mean any of the following conditions or events which condition(s) or
event(s) remain in effect 30 days after written notice is provided by Executive
to the Company or CareInsite, as the case may be, detailing such condition or
event:
1. A material reduction in Executive's title or
responsibilities with CareInsite or the Company or if he is required to
report to any person other than Xxxxxx X. Wygod (other than as a result
of the health of Mr. Wygod or his death); provided that Executive shall
not have Good Reason if the Company determines that as a result of a
corporate transaction or potential conflicts of interest with
CareInsite, it is not in the best interests of the Company and its
stockholders that Executive continue to serve as the President of the
Company or having the responsibilities associated with such position so
long as CareInsite assumes the Company's obligations to pay the Company
Base Salary and Company Bonus and to provide the other benefits
contemplated in Section 2 in accordance with its plans and policies;
2. Any reduction in the Company Base Salary or CareInsite
Base Salary or material fringe benefits provided by the Company;
3. Any material breach by the Company or CareInsite of
this Agreement (which shall not include the circumstance described in
the proviso in clause 1 above);
4. Executive's remaining in the employ of the Company and
CareInsite for a period of one year following the occurrence of a
Change in Control of the Company or CareInsite, as the case may be.
6. Covenants of Executive
6.1 Confidentiality. (a) Executive understands and
acknowledges that in the course of his employment, he will have access to and
will learn information that is proprietary to, or confidential to the Company,
CareInsite and their Affiliates that concerns the operation, methodology and
plans of the Company, CareInsite and their Affiliates, including, without
limitation, business strategy and plans, financial information, protocols,
proposals, manuals, clinical procedures and guidelines, technical data, computer
source codes, programs, software, know-how and specifications, copyrights, trade
secrets, market information, Developments (as
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defined in Section 6.4 below), information regarding acquisition and other
strategic partner candidates, and customer information (collectively,
"Proprietary Information"). Executive agrees that, (i) at all times (including
following termination of his employment with the Company or CareInsite) with
respect to Proprietary Information that is not financial information of the
Company or CareInsite and (ii) during his employment with the Company or
CareInsite and for three years thereafter, with respect to financial information
of the Company and CareInsite, he will keep confidential and will not disclose
directly or indirectly any such Proprietary Information to any third party,
except as required to fulfill his duties hereunder, and will not misuse,
misappropriate or exploit such Proprietary Information in any way. The
restrictions contained herein shall not apply to any information which Executive
can demonstrate (i) was already available to the public at the time of
disclosure, or subsequently becomes available to the public, otherwise than by
breach of this Agreement by Executive, (ii) was the subject of a court order for
Executive to disclose or (iii) was known by Executive prior to the Effective
Date. Upon any termination of Executive's employment, Executive shall
immediately return to the Company or CareInsite, as applicable, all copies of
any Proprietary Information in his possession.
(b) Executive agrees that at no time during his employment by
the Company, CareInsite or thereafter, shall he make, or cause or assist any
other person to make, any statement or other communication to any third party
which falsely impugns or falsely attacks, or is otherwise critical of, the
reputation, business or character of the Company, CareInsite or their Affiliates
or any of their respective officers or employees.
6.2. Restrictions on Solicitation. During the period beginning
on the Effective Date and ending on the second anniversary of the date of
cessation of the employment of Executive for any reason whatsoever (the
"Restricted Period"), Executive shall not, directly or indirectly, without the
prior written approval of the Company, solicit or contact any customer, or any
prospective customer, of the Company, CareInsite or any of their Affiliates for
any commercial pursuit which is in competition with the Company, CareInsite or
any of their Affiliates, or that is contemplated by the Business Plan (as
defined below) at the time of termination or take away or interfere or attempt
to interfere with any custom, trade, business or patronage of the Company,
CareInsite or any of their Affiliates. During the Restricted Period, Executive
shall not, directly or indirectly, without the prior written approval of the
Company, solicit or induce, or attempt to induce, any employees, agents or
consultants of or to the Company, CareInsite or any of their Affiliates to leave
the employ of the Company, CareInsite or such Affiliate or do anything from
which Executive is restricted by reason of this Agreement nor shall Executive,
directly or indirectly, offer or aid others to offer employment to or interfere
or attempt to interfere with any employees, agents or consultants of the
Company, CareInsite or any of their Affiliates. For purposes of this Agreement,
"Business Plan" shall mean, at any point in time, the then current business plan
of the Company, CareInsite or any of their Affiliates and any business plans of
the Company, CareInsite or any of their Affiliates in effect during the prior 18
months.
6.3. Restrictions on Competitive Employment. (a) During the
Restricted Period, Executive shall not, anywhere in the United States, directly
or indirectly, without the prior written approval of the Company, own an
interest in or, as principal, agent, employee,
11
consultant or otherwise, engage in activities for or render services to, any
firm or business (i) engaged in competition with the Company, CareInsite or any
of their Affiliates, (ii) conducting a business of the type and character
engaged in by (or contemplated by the Business Plan of) the Company, CareInsite
or any of their Affiliates at the time of termination, or (iii) developing
products or services competitive with those of the Company, CareInsite or any of
their Affiliates (all of the businesses in clauses (i), (ii) and (iii)
collectively, "Competitive Business"). Notwithstanding the foregoing, Executive
may have an interest consisting of publicly traded securities constituting less
than 1 percent of any class of publicly traded securities in any public company
engaged in a Competitive Business so long as he is not employed by and does not
consult with, or become a director of or otherwise engage in any activities for,
such company.
(b) For purposes of the covenant not to compete set forth in
paragraph (a) above, Executive acknowledges that the Company, CareInsite and
their Affiliates presently conduct their businesses throughout the United
States. Executive agrees that the Restricted Period and the geographical areas
encompassed by such covenant are necessary and reasonable in order to protect
the Company, CareInsite and their Affiliates in the conduct of their businesses.
The parties intend that the foregoing covenant of Executive shall be construed
as a series of separate covenants, one for each geographic area specified.
Except for geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenant set forth in paragraph (a) above. To the
extent that the foregoing covenant or any provision of this Section 1.5 shall be
deemed illegal or unenforceable by a court or other tribunal of competent
jurisdiction with respect to (i) any geographic area, (ii) any part of the time
period covered by such covenant, (iii) any activity or capacity covered by such
covenant or (iv) any other term or provision of such covenant, such
determination shall not affect such covenant with respect to any other
geographic area, time period, activity or other term or provision covered by or
included in such covenant.
6.4. Assignment of Developments. All Developments that are at
any time made, conceived or suggested by Executive, whether acting alone or in
conjunction with others, arising out of or as a result of Executive's employment
with the Company or CareInsite shall be the sole and absolute property of the
Company, CareInsite and the Affiliates, free of any reserved or other rights of
any kind on Executive's part. During Executive's employment and, if such
Developments were made, conceived or suggested by Executive during or as a
result of Executive's employment under this Agreement or any other employment
with the Company, CareInsite or the Affiliates, thereafter, Executive shall
promptly make full disclosure of any such Developments to the Company or
CareInsite, as applicable, and, at the Company's or CareInsite's cost and
expense, do all acts and things (including, among others, the execution and
delivery under oath of patent and copyright applications and instruments of
assignment) deemed by the Company or CareInsite to be necessary or desirable at
any time in order to effect the full assignment to the Company, CareInsite and
the Affiliates of Executive's right and title, if any, to such Developments. For
purposes of this Agreement, the term "Developments" shall mean all data,
discoveries, findings, reports, designs, inventions, improvements, methods,
practices, techniques, developments, programs, concepts, and ideas, whether or
not patentable, relating to the present or planned activities, or future
activities, or the products and services of the Company, CareInsite or any of
the Affiliates.
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6.5. Remedies. Executive acknowledges and agrees that damages
for a breach or threatened breach of any of the covenants set forth in this
Section 6 will be difficult to determine and will not afford a full and adequate
remedy, and therefore agrees that the Company or CareInsite, in addition to
seeking actual damages in connection therewith, may seek specific enforcement of
any such covenant in any court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent injunction.
7. Notices.
Any notice or communication given by either party hereto to
the other shall be in writing and personally delivered or mailed by registered
or certified mail, return receipt requested, postage prepaid, to the following
addresses:
(a) if to the Company:
Medical Manager Corporation
River Drive Center 2
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with a copy to CareInsite at the address in
subparagraph (b) below.
(b) if to CareInsite:
CareInsite, Inc.
River Drive Center 2
000 Xxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with a copy to the Company at the address in
subparagraph (a) above.
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(c) if to Executive at the address set forth below.
Any notice shall be deemed given when actually delivered to
such address, or three days after such notice has been mailed or sent by Federal
Express, whichever comes earliest. Any person entitled to receive notice may
designate in writing, by notice to the other, such other address to which
notices to such person shall thereafter be sent.
8. Miscellaneous.
8.1. Representations and Covenants. In order to induce the
Company to enter into this Agreement, Executive makes the following
representations and covenants to the Company and CareInsite and acknowledges
that the Company and CareInsite are relying upon such representations and
covenants:
(a) No agreements or obligations exist to which
Executive is a party or otherwise bound, in writing or otherwise, that
in any way interfere with, impede or preclude him from fulfilling all
of the terms and conditions of this Agreement.
(b) Executive, during his employment, shall use his
best efforts to disclose to the Chairman of the Board of the Company or
CareInsite in writing or by other effective method any bona fide
information known by him and not known to the Chairman of the Board of
the Company or CareInsite that he reasonably believes would have any
material negative impact on the Company, CareInsite or any of their
Affiliates.
8.2. Entire Agreement. This Agreement and the Stock Option
Agreements contain the entire understanding of the parties in respect of their
subject matter and supersede upon their effectiveness all other prior agreements
and understandings between the parties with respect to such subject matter.
8.3 Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party against whom enforcement is sought. No failure to exercise, and no
delay in exercising, any right, power or privilege hereunder shall operate as a
waiver thereof. No waiver of any breach of any provision of this Agreement shall
be deemed to be a waiver of any preceding or succeeding breach of the same or
any other provision.
8.4. Binding Effect; Assignment. The rights and obligations of
this Agreement shall bind and inure to the benefit of any successor of the
Company or CareInsite by reorganization, merger or consolidation, or any
assignee of all or substantially all of the Company's or CareInsite's business
and properties. The Company or CareInsite may assign its rights and obligations
under this Agreement to any of its Affiliates without the consent of Executive
so long as the Company or CareInsite remains responsible for the payment of the
obligations hereunder. Executive's rights or obligations under this Agreement
may not be assigned by Executive, except that the rights specified in Section
5.2 shall pass upon Executive's death to Executive's executor or administrator.
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8.5. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
8.6. Governing Law; Interpretation. This Agreement shall be
construed in accordance with and governed for all purposes by the laws and
public policy (other than conflict of laws principles) of the State of New
Jersey applicable to contracts executed and to be wholly performed within such
State.
8.7. Further Assurances. Each of the parties agrees to
execute, acknowledge, deliver and perform, and cause to be executed,
acknowledged, delivered and performed, at any time and from time to time, as the
case may be, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably necessary to carry out
the provisions or intent of this Agreement.
8.8. Severability. The parties have carefully reviewed the
provisions of this Agreement and agree that they are fair and equitable.
However, in light of the possibility of differing interpretations of law and
changes in circumstances, the parties agree that if any one or more of the
provisions of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall, to the extent permitted by law, remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Moreover, if any of the provisions contained in this Agreement are determined by
a court of competent jurisdiction to be excessively broad as to duration,
activity, geographic application or subject, it shall be construed, by limiting
or reducing it to the extent legally permitted, so as to be enforceable to the
extent compatible with then applicable law.
15
8.9. Withholding Taxes. All payments hereunder shall be
subject to any and all applicable federal, state, local and foreign withholding
taxes.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
MEDICAL MANAGER CORPORATION
By: _____________________________
Name:
Title:
CAREINSITE, INC.
By: _____________________________
Name:
Title:
EXECUTIVE
_____________________________
Xxxxxx X. Xxxx
0000 Xxxxx Xxxxx Xxxx
Xxx Xxxxxx, XX 00000
