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Exhibit 10.18
June 30, 1998
Ms. Xxxxxxx Xxx
000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000
Dear Ms. May,
This letter, when accepted by you in a manner hereinafter provided, will
evidence the agreement among Optimum Health Services, Inc, a Delaware
Corporation (the "Company") and Ms. Xxxxxxx Xxx (the "Employee") for the
provision of certain services to be rendered by Employee to the Company (the
"Agreement"), all under the following terms and conditions to wit:
1. EMPLOYMENT DUTIES
The Company shall employ Employee as Vice President of Corporate Development.
Employee shall report to the President and be initially responsible for, among
others:
A. Participation in the design and production of collateral materials
B. Development and implementation of a strategic plan for provider
recruitment
C. Provider recruitment including PCP's, specialists, hospitals,
alternative care providers and ancillary service providers
D. Contract negotiations (including compensation arrangements) with
providers. Compensation parameters to be pre-approved by the
President
E. Contract negotiations with payor groups (HMOs, employer's,
individuals, etc...) as approved by supervisor.
F. Development of Provider Manual(s)
G. Recruitment and supervision of network development/provider relations
staff
H. Other duties as may be assigned
2. EMPLOYMENT TERM
This Agreement shall commence on June 30, 1998, and shall end on May 31, 2001
(the "Employment Term") unless extended by the Company and Employee in writing
or unless sooner terminated in accordance with the provisions of this Agreement.
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3. COMPENSATION, EXPENSES, ETC.
In consideration of performance of the services and activities hereby, the
Company shall pay Employee compensation as follows:
A. An initial base salary of thirty-nine thousand ($39,000) per
annum during the Company's pre-operational phase; increased to
sixty thousand ($60,000) when operational (operational phase
begins at such time the Company has generated revenues for a
fiscal quarter in an amount equal to or greater than $375,000)
B. Eligible for up to $5,000 bonus payable at the end of each
annual anniversary based on provider recruitment goals, payor
contracts negotiated and Company profitability. Specific goals
in each area to be outlined within 30 days subsequent to each
anniversary period.
C. Payment of group health care premium covering the Employee,
beginning with commencement of the Employment Term; dependent
coverage available through go
D. payroll deduction.
E. Three (3) weeks of compensated vacation which shall vest ratably
throughout the year.
F. Eligibility for other company benefits as they become available
(life insurance, long and short term disability, etc.), in
accordance with company policies
G. Upon termination of this Agreement by mutual written agreement,
death, or disability of the Employee, or change of control
(where change of control shall mean (I) any transaction that has
the result that stockholders of the Company immediately before
such transaction cease to own at least fifty-one percent (51%)
of the voting stock of the Company or of any entity that results
from the participation of the Company in a reorganization,
liquidation or any other form of corporate transaction; (ii) a
merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive; or (iii) a
sale, lease exchange or other disposition of all or
substantially all the property and assets of the Company), the
Employee shall receive a severance package equal to fifty
percent (50%) of Employee's annual base salary at the time of
termination, payable in six (6) equal monthly installments,
beginning in the second calendar month following the month in
which termination occurs.
H. The Company shall deduct the usual withholding taxes from
Employee's compensation consistent with standard practices and
applicable federal and state laws.
I. The Company shall reimburse Employee for any documented out of
pocket expenses incurred in connection with the duties and
responsibilities described herein,
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subject to the Company's policies. Upon termination of this
Agreement, all accrued but unpaid compensation to Employee shall
be payable in full.
4. STOCK OPTIONS
Employee will be granted on June 30, 1998 options (the "Options") to purchase
four thousand two hundred fifty-nine (4,259) shares of the Company's common
stock at an exercise price of $1.44 per share under the Company's Stock Option
Plan. The Options will be evidenced by a stock option agreement (such options
shall be subject to adjustment in the event of a re-capitalization, stock split,
rights offering, stock dividend). Sale of the shares of Common Stock issued to
Employee upon the exercise of the Options may be subject to limitations pursuant
to Rule 144 under the Securities Act of 1933. The Options shall vest with
respect to thirty-three and one-third percent (33 1/3%) on May 31, 1999;
thirty-three and one-third percent (33 1/3%) on May 31, 2000; and thirty-three
and one-third percent (33 1/3%) on May 31, 2000. The Options shall be
exercisable for a period of five (5) years from June 1, 1998. However, in the
event this Agreement is terminated for cause or in the event Employee resigns
from the employment of the Company, the vested Options shall be exercisable for
a period of three (3) months from the date of such termination or resignation.
5. TERMINATION
This Agreement may be terminated prior to the end of the Employment Term,
(i) by the written agreement between Company and Employee;
(ii) by the death of Employee or her disability for a period of one
hundred and twenty (120) consecutive days or the adjudicated
mental incompetency of Employee; or
(iii) by the Company for cause, where "cause" shall mean for purpose
of this Agreement:
(a) a violation by Employee of any material provision of this
Agreement, a breach of fiduciary duty or conduct involving
moral turpitude, where such violation, activity, or conduct
is not remedied by Employee within thirty, (30) days of
written notice from the Company
(b) employee's conviction of a felony
6. COVENANT NOT TO COMPETE; NOT TO SOLICIT
A. During the Employment Term and for a period of six (6) months
thereafter, the Employee will not without the prior written
permission of the Company in each instance directly or indirectly
carry on or participate in a business the same as or similar to or in
competition with that conducted or engaged in by the Company or any
of its subsidiaries or affiliates.
B. The term "carry on or participate in a business the same as or
similar to that conducted or engaged in by the Company or any of its
subsidiaries or affiliates" shall include the Employee, directly or
indirectly, doing any of the following listed acts, other than
carrying on or engaging in activities expressly permitted under this
Agreement:
(i) carrying on or engaging in any such business as a principal,
or solely or jointly with others as a director, officer,
agent, employee, consultant or partner, or stockholder or
limited partner owning more than five percent (5%) of the
stock
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or equity interests in or securities convertible into more
than five percent (5%) of the stock of or equity interests
in any corporation, association or limited partnership; or
(ii) as agent or principal carrying on or engaging in any
activities or negotiations with respect to the acquisition
or disposition of any such business; or
(iii) lending credit or money for the purpose of establishing or
operating any such business; or
(iv) giving advice to any other person, firm, association,
corporation or other entity engaging in any such business,
provided such other person, firm, association, corporation
or other entity is not a member of Employee's immediate
family; or
(v) lending or allowing her name or reputation to be used in any
such business.
C. In the event of a breach or threatened breach by the Employee of the
provisions of this Section 6, the Company shall be entitled to
injunctive relief against the Employee. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies
available to the Employer for such breach or threatened breach,
including without limitation the recovery of damages from the
Employee.
D. During the Employment Term and for six (6) months thereafter, the
Employee will not without the prior written permission of the Company
in each instance will not solicit, or attempt to solicit and employ
any employee of the Company or any of its subsidiaries or affiliates,
or commit an act the primary purpose of which is to induce employee
of the Company or any of its subsidiaries or affiliates to leave such
employment or significantly interfere with, disrupt or attempt to
disrupt any past, present or prospective relationship, contractual or
otherwise, relating to the business activities between the Company or
any of its subsidiaries or affiliates and their respective prospects.
E. The parties hereto consider the restrictions contained in this
Section 6 to be reasonable. If, however, such restrictions are found
by any court having jurisdiction to be unreasonable because they are
(or any of them is) too broad, then such restrictions shall
nevertheless remain effective, but shall be considered amended as to
protection of business, time or geographic area in whatever manner is
considered reasonable by that court and, as so amended, shall be
enforced.
F. The provisions of this Section 6 shall survive the expiration or
termination, for any reason, or this Agreement and shall be
separately enforceable.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
A. The Employee agrees that she will not, during the Employment Term or
thereafter, make use of, divulge or otherwise disclose, directly or
indirectly, any trade or business secret (including, without
limitation, any customer list, data, records or financial information
constituting a trade or business secret) concerning the business or
policies of the Company or any of its subsidiaries or affiliates
which she may have learned as a result of her employment during the
Employment Term or prior thereto as shareholder,
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employee, officer and/or director or the Company except to the extent
such use or disclosure is necessary to the performance of this
Agreement and in furtherance of the Company's best interest. The
provisions of this Section 7 shall survive the expiration or
termination, for any reason, of this Agreement.
B. The Employee shall not during the Employment Term or for six (6)
months thereafter make use of, divulge or otherwise disclose,
directly or indirectly, any confidential information concerning the
business or policies of the Company or any of its subsidiaries or
affiliates which she may have learned while a shareholder, employee,
officer and/or director of the Company.
C. In the event of a breach or reasonably threatened breach by the
Employee of the provisions of this Section 7, the Company shall be
entitled to an injunction restraining the Employee from disclosing,
in whole or in part, any such trade or business secret and/or any
such confidential information, or from rendering any services to any
person, firm, corporation, association, or other entity to whom any
such trade or business secret and/or any such confidential
information, in whole or in part, has been disclosed or is threatened
to be disclosed. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to the Company for
such breach or threatened breach, including without limitation the
recovery of damages from the Employee.
D. The provisions of this Section 7 shall survive the expiration or
termination, for any reason, of this Agreement and shall be
separately enforceable.
8. AMENDMENT
This Agreement may be amended only by the written agreement of the Company and
Employee.
9. SUCCESSORS AND ASSIGNS
The Company's rights and obligations under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company; and
the Company may delegate all or any part of its rights and obligations hereunder
to any affiliate or subsidiary of the Company.
The Employee acknowledges and agrees that this Agreement is personal to her and
her rights and interests hereunder may not be assigned, nor may her obligations
and duties hereunder be delegated with exception of the voting rights assigned
to Employee's spouse by Employee.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida.
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11. ENTIRE AGREEMENT
This Agreement supersedes any and all other agreements, either oral or written
heretofore made with respect to the subject matter hereof.
12. SEVERABILITY
Any provision of this Agreement which is found to be unenforceable in any
jurisdiction, shall, as to such jurisdiction only, be ineffective to the extent
of such unenforceability, without invalidating or otherwise affecting the
remaining provisions hereof. If any of the covenants against competition
contained in Section 6 are found by a court having jurisdiction to be
unreasonable in duration, geographical scope, or character of restriction, the
covenant shall not be rendered unenforceable thereby, but rather the duration,
geographical scope, or character of restriction of said covenant shall
respectively be reduced or modified to render the covenant reasonable and the
covenant shall be enforced as modified.
13. COUNTERPARTS
This Agreement may be executed simultaneously in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Agreement shall be binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of the parties reflected hereon as signatories.
14. NOTICES
All notices required or permitted under this Agreement shall be in writing and
shall be deemed effective upon personal delivery or upon deposit in the United
States Post Office, by registered or certified mail, postage prepaid, addressed
to:
(i) Employee at the address shown above, or at such other
address or addresses as Employee shall designate to the
Company in accordance with this Section, or
(ii) Company at the address set forth on the above letterhead, or
at such other address as the Company shall designate to
Employee in accordance with this section.
15. PRONOUNS
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms and the singular
form of nouns and pronouns shall include the plural and vice versa.
16. MISCELLANEOUS
A. No delay or omission by the Company or Employee in exercising any
right under this Agreement shall operate as a waiver of that or any
other right. A waiver or consent given by the Company or Employee on
any one occasion shall be effective
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only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.
B. The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or
substance of any of this Agreement.
17. EMPLOYEE REPRESENTATIONS
Employee represents and warrants that she has the full power and authority to
enter into this Agreement and perform the duties as contemplated hereunder.
Employee further represents and warrants that she is free to enter into this
Agreement and that there are no other employment contracts, agreements or
understandings, written or oral, restrictive covenants, agreements not to
compete, confidentiality agreements or other restrictions whether written or
oral, preventing the performance of her duties hereunder. To the extent of any
breach of these representations and warranties by Employee, Employee agrees to
indemnify Employer and hold Employer harmless from any claim, action, liability,
damage or loss threatened or incurred by Employer on account of such breach.
* * *
If the foregoing accurately sets out our agreement with regard to the above,
please indicate your acceptance by executing and returning two copies of this
letter to the undersigned.
Very truly yours,
OPTIMUM HEALTH SERVICES, INC.
By:
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Xxxxx Xxxxxxx
President & CEO
Accepted and agreed to this ___ day of _________________, 1998.
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Xxxxxxx X. May
"Employee"
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