Exhibit 10.3
Employment Agreement with Xxxxxx X. Xxxxxxxx,
dated September 1, 1999
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made, entered into, and effective as
of September 1, 1999 (the "Effective Date"), by and between
Xxxxxxxxxxxxxxxx.xxx, Inc., a California corporation ("Company"), and Xxxxxx X.
Xxxxxxxx, an individual ("Employee").
RECITALS
A. Company is engaged in the business of providing internet healthcare
information and services, and maintains an office in the State of California.
B. Company desires to have an employment agreement with Employee as its
Vice President, Chief Operations Officer, Secretary, and Chief Financial Officer
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto hereby agree as follows:
AGREEMENT
1. Term and Duties. Company hereby employs Employee as Vice President,
Chief Operations Officer, Secretary, and Chief Financial Officer as of the
Effective Date and Employee agrees to enter into and remain in the employ of
Company until this Agreement is terminated as provided herein below. Employee
shall faithfully and diligently perform all professional duties and acts as
Secretary and Treasurer as may be requested and required of Employee by Company
or its Directors. Employee shall devote such time and attention to the business
of Company as shall be required to perform the required services and duties.
Employee at all times during the employment term shall strictly adhere to and
obey all policies, rules and regulations established from time to time governing
the conduct of employees of Company.
2. Exclusivity, Non-Disclosure.
a. Employee agrees to perform Employee's services efficiently and to the
best of Employee's ability. Employee agrees throughout the term of this
Agreement to devote his time, energy and skill to the business of the Company
and to the promotion of the best interests of the Company.
b. Employee agrees that he shall not at any time, either during or
subsequent to his employment term, unless expressly consented to in writing by
Company, either directly or indirectly use or disclose to any person or entity
any confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of Company, including, but not
limited to, information concerning the customers of Company, Company's marketing
methods, compensation paid to employees, independent contractors or suppliers
and other terms of their employment or contractual relationships, financial and
business records, know-how, or any other information concerning the business of
Company, its manner of operations, or other data of any kind, nature or
description. Employee agrees that the above information and items are important,
material and confidential trade secrets and these affect the successful conduct
of Company's business and its goodwill.
3. Compensation.
a. Subject to the termination of this Agreement as provided herein,
Company shall compensate Employee for his services hereunder at a monthly salary
of twelve thousand dollars ($12,000) payable in accordance with the Company's
practices, less normal payroll deductions, and prorated for the actual
employment term.
b. Employee is also eligible to receive such additional compensation as
the Board of Directors of Company determines is proper in recognition of
Employee's contributions and services to Company. Such additional compensation
shall be paid to Employee on the anniversary date of this Agreement during the
Employment Term, and at such other times as may be determined by the Board of
Directors.
c. In addition to the compensation set forth above, Employee shall be
entitled to participate in or to receive benefits under all of Company's
employee benefit plans made available by Company now or in the future to
similarly situated employees, subject to the terms, conditions and overall
administration of such plans.
4. Expenses. Company shall reimburse Employee for all reasonable business
related expenses incurred by Employee in the course of his normal duties on
behalf of the Company. In compensating Employee for expenses, the ordinary and
usual business guidelines and documentation requirements shall be adhered to by
Company and Employee.
5. Vacation. Employee shall be entitled to accrue four (4) vacation weeks
with pay during each employment year, to be taken at such times as may be
convenient to Company and Employee. Any vacation time not used in any one year
may be carried forward to subsequent employment years. For purposes of this
Agreement, "employment years" shall mean the successive one (1) year periods
beginning on the Effective Date of this Agreement and on each anniversary date
of the Effective Date of this Agreement during the term of this Agreement.
6. Inventions and Patents. All processes, inventions, patents, computer
software, copy rights, trademarks and other intangible rights (collectively
referred to as "Intellectual Property") that may be conceived or developed by
Employee during the Employment Term, either alone or with others, made or
conceived by him shall remain the sole property of Company.
7. Disability of Employee.
a Employee shall be considered disabled if, due to illness or injury,
either physical or mental, Employee is unable to perform Employee's customary
duties as an employee of Company for more than thirty (30) days in the aggregate
out of a period of twelve (12) consecutive months. The disability shall be
determined by a certification from a physician.
b. If Employee is determined to be disabled, Company shall continue to pay
Employee's base salary for the initial ninety (90) days of "disability." The
continuation of the salary compensation after the initial ninety (90) days shall
be determined by the Board of Directors of the Company.
8. Termination By Company.
a. Unless terminated earlier as provided in this Agreement, Employee shall
be employed for a term commencing on the Effective Date and ending three (3)
years thereafter. Thereafter, the employment term shall continue on an at will
basis until terminated at the option of Company or Employee upon thirty (30)
days' prior written notice. This Agreement will terminate immediately upon
Employee's death.
b. Company may terminate this Agreement for cause at any time without
notice. For purposes of this Agreement, the term "cause" shall include, but not
be limited to, the following: a material breach of or failure to perform any
covenant or obligation in this Agreement, disloyalty, dishonesty, neglect of
duties, unprofessional conduct, acts of moral turpitude, disappearance,
felonious conduct or fraud.
c. If Company terminates this Agreement without cause, Employee shall
receive liquidated damages in accordance with Section 15 herein.
9. Termination By Employee.
a. Employee may terminate this Agreement without cause upon thirty (30)
days prior written notice to Company.
b. Employee may terminate this Agreement immediately with cause, in which
event Employee shall receive liquidated damages in accordance with Section 15
herein. For the purposes of this Agreement, "cause" for termination by Employee
shall be a breach of any material covenant or obligation hereunder, the
voluntary or involuntary dissolution of the Company, any merger or consolidation
in which the Company is not the surviving or resulting corporation, any transfer
of all or subsequently all of the assets of Company, transfer of a majority of
shares of the
Company by one or more shareholders in one or more transactions,
or the issuance of shares of Company constituting a majority of the outstanding
shares immediately following such issuance.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto their respective devisees, legatees, heirs, legal
representatives, successors, and permitted assigns. The preceding sentence shall
not affect any restriction on assignment set forth elsewhere in this Agreement.
11. Effect of Combination or Dissolution. This Agreement shall not be
terminated by the voluntary or involuntary dissolution of Company, or by any
merger or consolidation in which Company is not the surviving or resulting
corporation, or upon any transfer of all or substantially all of the outstanding
shares or assets of Company. Instead, the provisions of this Agreement shall be
binding on and inure to the benefit of Company's creditors, the surviving
business entity or the business entity to which such shares or assets shall be
transferred.
12. Assignment. Subject to all other provisions of this Agreement, any
attempt to assign or transfer this Agreement or any of the rights conferred
hereby, by judicial process or otherwise, to any person, firm, Company, or
corporation without the prior written consent of the other party, shall be
invalid, and may, at the option of such other party, result in an incurable
event of default resulting in termination of this Agreement and all rights
hereby conferred.
13. Choice of Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
14. Indemnification. Company shall indemnify, defend and hold Employee
harmless, to the fullest extent permitted by law, for all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney's fees that
Employee shall incur or suffer that arise from, result from or relate to the
discharge of Employee's duties under this Agreement. Company shall maintain
adequate insurance for this purpose or shall advance Employee any expenses
incurred in defending any such proceeding or claim to the maximum extent
permitted by law.
15. Liquidated Damages. In the event of any material breach of this
Agreement by Company, Employee at his sole option, may terminate this Agreement
and, at his sole option, receive as liquidated damages (the "Liquidated
Damages") one of the following:
a. The full amount of the salary and incentive compensation provided for
in Section 3 of this Agreement for the remaining term of this Agreement. The sum
payable to Employee under this Section shall be payable in monthly installments
on the first day of each month, beginning one month following the date of
termination of employment.
b. The Liquidated Damages shall not be limited or reduced by amounts that
Employment might otherwise earn or be able to earn during the period between
termination of his employment under this Agreement and payment of the Liquidated
Damages. The provisions of this Section shall be in addition to any and all
rights Employee may have in equity or at law to require Company to comply with
or to prevent the breach by Company of this Agreement.
16. Jurisdiction. The parties submit to the jurisdiction of the Courts of
the County of Orange, State of California for the resolution of all legal
disputes arising under the terms of this Agreement, including, but not limited
to, enforcement of any arbitration award.
17. Entire Agreement. Except as provided herein, this Agreement, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations, or agreements and all other oral,
written, or other communications between them concerning the subject matter of
this Agreement. There are no representations, agreements, arrangements, or
understandings, oral or written, between and among the parties hereto relating
to the subject matter of this Agreement that are not fully expressed herein.
18. Severability. If any provision of this Agreement is unenforceable,
invalid, or violates applicable law, such provision, or unenforceable portion of
such provision, shall be deemed stricken and shall not affect the enforceability
of any other provisions of this Agreement.
19. Captions. The captions in this Agreement are inserted only as a matter
of convenience and for reference and shall not be deemed to define, limit,
enlarge, or describe the scope of this Agreement or the relationship of the
parties, and shall not affect this Agreement or the construction of any
provisions herein.
20. Modification. No change, modification, addition, or amendment to this
Agreement shall be valid unless in writing and signed by all parties hereto.
21. Attorneys' Fees. Except as otherwise provided herein, if a dispute
should arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
22. Taxes. Any income taxes required to be paid in connection with the
payments due hereunder, shall be borne by the party required to make such
payment. Any withholding taxes in the nature of a tax on income shall be
deducted from payments due, and the party required to withhold such tax shall
furnish to the party receiving such payment all documentation necessary to prove
the proper amount to withhold of such taxes and to prove payment to the tax
authority of such required withholding.
23. Not for the Benefit of Creditors or Third Parties. The provisions of
this Agreement are intended only for the regulation of relations among the
parties. This Agreement is not intended for the benefit of creditors of the
parties or other third parties and no rights are granted to creditors of the
parties or other third parties under this Agreement. Under no circumstances
shall any third party, who is a minor, be deemed to have accepted, adopted, or
acted in reliance upon this Agreement.
24. Counterparts; Facsimile Signatures. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
25. Conflict Waiver. Both Employee and the Company (the "Parties") hereby
agree and acknowledge that the law firm of Xxxxxxx and Beam ("H&B"), which
represents the Company, has drafted this Agreement. The Parties hereto further
acknowledge that they have been informed of the inherent conflict of interest
associated with the drafting of this Agreement by H&B and waive any action they
may have against H&B regarding such conflict. The Parties have been given the
opportunity to consult with counsel of their choice regarding their rights under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date.
"Company" "Employee"
Xxxxxxxxxxxxxxxx.xxx, Inc., Inc.,
a California corporation
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxxxx
BY: Xxxxxx X. Xxxx Xxxxxx X. Xxxxxxxx
ITS: President
Confirmed authorized by Board of Directors:
/s/ Xxxxxx X. Xxxxxxxx
BY: Xxxxxx X. Xxxxxxxx
ITS: Secretary
