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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into by and
among xxxxxxx.xxx, Inc., a Delaware corporation ("MEDIBUY"), PartNET, Inc., a
Utah corporation and a wholly-owned subsidiary of MEDIBUY ("COMPANY") and Xxx
Xxxxx ("EXECUTIVE").
1. EMPLOYMENT.
COMPANY hereby employs EXECUTIVE, and EXECUTIVE hereby agrees to accept
employment from COMPANY, as President of COMPANY. EXECUTIVE agrees during the
term of his employment under this Agreement to perform the duties and
responsibilities customarily required of such position, and to be subject to
COMPANY's bylaws and Utah corporation law. EXECUTIVE agrees to perform such
services consistent with his position as shall be reasonably determined from
time to time by COMPANY's or MEDIBUY's Board of Directors. EXECUTIVE further
agrees to use his best efforts to promote the interests of COMPANY and MEDIBUY
and to devote substantially all of his normal business time and energies to the
business and affairs of COMPANY, unless otherwise authorized by the Chief
Executive Officer of COMPANY or the Chief Executive Officer of MEDIBUY.
EXECUTIVE may, however, engage in other business matters as well as civic and
not-for-profit activities so long as such activities do not materially interfere
with the performance of his duties to COMPANY hereunder.
2. TERM OF EMPLOYMENT.
The employment under this Agreement shall commence on November 22, 1999 and
shall end on November 22, 2001, provided that the term of the Agreement shall be
extended
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automatically for successive periods of one year unless otherwise terminated
under Paragraph 5 of this Agreement.
3. COMPENSATION
(a) BASE SALARY. As compensation for services provided to
COMPANY, EXECUTIVE shall receive a salary at the annual rate of $193,000 less
such payroll and withholding taxes as required by law to be deducted and such
other amounts as EXECUTIVE shall authorize in writing. The salary shall be
payable in semi-monthly installments. Such salary may be increased, but not
decreased, from time to time as decided in the good faith discretion of the
Board of Directors of COMPANY.
(b) BONUS. As additional compensation for services rendered by
EXECUTIVE, EXECUTIVE shall be entitled to participate in any incentive bonus
program that COMPANY's or MEDIBUY's Board of Directors may establish for its
executive employees. Such bonus program shall provide a maximum bonus of fifty
percent (50%) of the salary paid during the year in which the bonus is earned,
based upon factors established by COMPANY's or MEDIBUY's Board of Directors or
COMPANY's or MEDIBUY's Chief Executive Officer.
(c) EQUITY COMPENSATION. As further compensation for the services
rendered by EXECUTIVE, upon his commencement of employment with the COMPANY
pursuant to this Agreement and approval by MEDIBUY's Board of Directors,
EXECUTIVE will be granted an incentive stock option (the "Option") (to the
extent such Option qualifies as an incentive stock option under applicable laws
and regulations) to purchase 100,000 shares of Common Stock of MEDIBUY at an
exercise price equal to the fair market value of MEDIBUY Common Stock (as
determined by the Board of Directors) as of the date of this Agreement.
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The issuance and exercise of the Option and the issuance of shares subject to
the Option shall be subject to the conditions of the MEDIBUY's 1999 Omnibus
Equity Plan (the "Plan").
(i) VESTING OF OPTIONS. The shares subject to the Option
shall vest according to the following schedule:
Upon EXECUTIVE's completion of 6 full months of employment pursuant to
this Agreement, 13% of the shares subject to the Option, or 13,000 shares, shall
vest and be subject to exercise immediately, and upon EXECUTIVE's completion of
one full year of employment pursuant to this Agreement, an additional 12% of the
shares subject to the Option, or 12,000 shares, shall vest and be subject to
exercise immediately, provided, however, that in the event EXECUTIVE resigns his
employment with COMPANY without Good Reason (as defined in Section 5(d) below)
prior to the completion of one full year of employment under this Agreement, any
shares of COMPANY'S Common Stock that EXECUTIVE has acquired by virtue of the
exercise of such Option shall be subject to COMPANY's right to repurchase at the
price EXECUTIVE paid for them, and any shares subject to the Option that have
vested but which EXECUTIVE has not yet exercised shall become null and void.
The remaining 75,000 shares subject to the Option shall vest and be
subject to exercise at the rate of 2,083.33 shares for each full month that
EXECUTIVE'S employment continues under this Agreement after the first
anniversary hereunder, such that all of the shares shall be vested and
exercisable as of the fourth anniversary of the date of this Agreement.
(ii) CHANGE IN CONTROL. Upon a "Change in Control" (as
defined below), 35% of the total shares subject to the Option granted to
EXECUTIVE under Section 3(c), above, that have not yet vested as of the
effective date of such Change in Control, shall vest
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on the effective date of the Change in Control. Subject to provisions regarding
termination of EXECUTIVE'S employment for Cause hereunder, the remaining 65% of
such unvested shares subject to the Option shall vest monthly pro rata over the
remaining original vesting schedule, unless such shares subject to the Option
would vest sooner pursuant to some other provision of this Agreement, in which
event the schedule which results in the earlier vesting shall apply. In the
event that, within the first twelve (12) months from the effective date of a
Change in Control, EXECUTIVE's employment is terminated without Cause or
EXECUTIVE resigns for Good Reason, then the balance of the shares subject to the
Option granted to EXECUTIVE under this Agreement that have not vested as of the
effective date of such termination or resignation for Good Reason shall vest and
become exercisable immediately. "Change in Control" shall mean either (i) a
dissolution, liquidation, or sale of all or substantially all of the assets of
MEDIBUY; (ii) a merger or consolidation in which MEDIBUY is not the surviving
corporation; (iii) a reverse merger in which MEDIBUY is the surviving
corporation but the shares of MEDIBUY's Common Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise; (iv) after the Listing
Date (as defined in the Plan), an acquisition by any person, entity or group
within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as hereafter amended or succeeded (excluding any employee benefit plan, or
related trust, sponsored or maintained by MEDIBUY or an affiliate of MEDIBUY) of
the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of securities of MEDIBUY or its successor representing at least
fifty percent (50%) of the combined voting power entitled to vote in the
election of directors; or (v) after the Listing Date, if individuals who, as of
the date of the adoption of the Plan, are members of the MEDIBUY Board (the
"Incumbent Board"), cease for
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any reason to constitute at least fifty percent (50%) of the Board, provided
that, if the election, or nomination for, election, by MEDIBUY's stockholders of
any new director was approved by a vote of at least fifty percent (50%) of the
Incumbent Board, such new director shall be considered as a member of the
Incumbent Board. Notwithstanding the foregoing, in the case of (ii) and (iii)
above, such transactions shall only be deemed a "Change in Control" if the
stockholders of MEDIBUY or its successor immediately prior to such merger,
consolidation or reverse merger: (A) hold less then 50% of the outstanding
securities of the surviving company following the merger or consolidation, or
(B) in the event that the securities of an affiliated entity are issued to the
stockholders of MEDIBUY in the transaction, hold less then 50% of the
outstanding securities of such entity corporation.
(d) SECURITIES REGISTRATION. MEDIBUY shall cause all of
EXECUTIVE's shares subject to the Option to be included in an effective
registration statement on Form S-8 (or any successor form) under the Securities
Act of 1933, as amended, within 180 days after the initial registered public
offering of MEDIBUY's Common Stock
With respect to any Common Stock of MEDIBUY that EXECUTIVE receives in
connection with the acquisition of COMPANY by MEDIBUY ("Merger Shares"), MEDIBUY
will grant EXECUTIVE piggy back registration rights for such Merger Shares that
entitle EXECUTIVE to include in a registration of MEDIBUY's Common Stock the
same proportionate number of his Merger Shares which is equal in proportion to
the number of any executive's shares of Common Stock which may be included in
such registration (not including any rights as may exist or be granted with
respect to any of MEDIBUY's stock option plans). For purposes of the
registration rights under this paragraph (d), an "executive" is defined as an
individual holding the office of executive vice president of MEDIBUY or above.
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4. PARTICIPATION IN BENEFIT PLANS, REIMBURSEMENT OF BUSINESS EXPENSES
AND MOVING EXPENSES.
(a) BENEFIT PLANS. During the term of this Agreement, EXECUTIVE
shall be provided with medical insurance, vacation benefits, sick leave
benefits, holidays and all other benefits which MEDIBUY makes available
generally to its executive employees from time to time, subject to the terms of
the plans, and such benefits will not be less than, and will be on terms no less
favorable than, MEDIBUY provides to its executive employees generally.
(b) REIMBURSEMENT OF BUSINESS EXPENSES. During the term of this
Agreement, MEDIBUY or COMPANY shall reimburse EXECUTIVE promptly for all
expenditures, including travel, entertainment, parking and business meetings
(including the dues and business related expenses of memberships at appropriate
business clubs, provided such memberships are approved in writing by the Chief
Executive Officer of MEDIBUY), provided such expenses are incurred and submitted
for reimbursement in accordance with the policies then in effect, as established
from time to time by MEDIBUY's Board of Directors.
5. TERMINATION OF EMPLOYMENT.
(a) AUTOMATIC TERMINATION. This Agreement will automatically
terminate in the event of EXECUTIVE's death, or EXECUTIVE's disability which has
prevented EXECUTIVE from performing substantially all of his duties and
responsibilities for a continuous period of ninety (90) days ("Disability"). In
the event of EXECUTIVE's death or Disability, MEDIBUY agrees: (i) to honor the
exercise of any stock options that have vested prior to the date of such
termination, subject to the applicable conditions of this Agreement and the
Plan, (ii) to pay all salary due or accrued as of the date of EXECUTIVE's death
or determination of
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disability all accrued and unused vacation pay and bonuses, and (iii) to
continue to pay EXECUTIVE's salary for the lesser of (1) the remaining term of
this Agreement or (3) three months following the date of death or determination
of Disability, less any payments made to EXECUTIVE pursuant to MEDIBUY or
COMPANY-sponsored disability insurance.
(b) TERMINATION WITHOUT CAUSE. In the event that MEDIBUY
terminates this Agreement without Cause as defined herein, MEDIBUY shall,
subject to the conditions set forth in Section 6 herein, continue to pay
EXECUTIVE his salary for a period of twelve (12) months plus any accrued, but
unused vacation, and less any applicable payroll and withholding taxes or other
legally required deductions, provided EXECUTIVE first executes the Waiver and
Release, attached to this Agreement as Appendix A. The salary continuation for
EXECUTIVE shall be at the higher of (i) his salary level in effect at the time
of termination or (ii) his salary level in effect on the date six months prior
to the date of his notice of termination, and shall be paid in the same manner
and at the same intervals as if EXECUTIVE continued his employment during that
one year period. MEDIBUY reserves the right to pay the twelve (12) months salary
continuation amount in a lump sum, discounted to present value using a discount
factor or 6%.
In the event EXECUTIVE elects continued health insurance coverage under COBRA,
MEDIBUY agrees to reimburse EXECUTIVE for the same portion of EXECUTIVE's COBRA
health insurance premium that it paid during EXECUTIVE's employment. In the
event EXECUTIVE elects to obtain life and/or disability insurance coverage,
MEDIBUY agrees to reimburse EXECUTIVE in an amount not to exceed the amount that
MEDIBUY paid for EXECUTIVE's MEDIBUY-sponsored life and disability insurance
coverage during EXECUTIVE's employment. MEDIBUY will provide such reimbursements
up until the earlier of: (i) twelve (12) months from the termination of
EXECUTIVE's employment with the
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COMPANY; or (ii) the date on which EXECUTIVE begins full-time employment with
another company or business entity. No other compensation or benefits shall be
due to EXECUTIVE. In the event that EXECUTIVE undertakes any activities in
violation of Section 6 herein without written permission from MEDIBUY's Chief
Executive Officer, MEDIBUY's and COMPANY's obligation to pay EXECUTIVE severance
compensation and/or reimbursement for benefit payments pursuant to this Section
5(b) shall cease.
(c) TERMINATION FOR CAUSE. Notwithstanding the provisions of
sub-section 5(b), MEDIBUY may terminate EXECUTIVE's employment for Cause, as
defined herein. For purposes of this Agreement, MEDIBUY shall have "Cause" to
terminate EXECUTIVE's employment in the event of the following:
(i) conviction of EXECUTIVE for any crime, or entry of a
plea of nolo contendere for any crime involving moral turpitude or dishonesty;
(ii) EXECUTIVE's participation in a fraud or act of
dishonesty against COMPANY or MEDIBUY;
(iii) EXECUTIVE's willful misfeasance or nonfeasance of duty
that materially injures the reputation, business or business relationships of
COMPANY or MEDIBUY or any of their officers, directors or affiliates,
(iv) a material breach by EXECUTIVE of any term of this
Agreement or the Proprietary Information and Inventions Agreement that EXECUTIVE
has entered into with MEDIBUY, or any of MEDIBUY's or COMPANY's written policies
and procedures, or
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(v) conduct by EXECUTIVE that in the good faith and
reasonable determination of MEDIBUY's Board of Directors demonstrates gross
unfitness to serve, but not including conduct resulting from physical or mental
disability.
In the event EXECUTIVE's employment is terminated for Cause, he
will not be entitled to receive any severance pay or any other severance
compensation.
(d) TERMINATION FOR GOOD REASON. For purposes of this Agreement,
"Good Reason" shall mean:
(i) Any material decrease in EXECUTIVE's authority or
responsibility; or
(ii) any action by MEDIBUY (including the elimination of
benefit plans without providing substitutes thereof or the reduction of
EXECUTIVE's benefits thereunder) that would substantially diminish the aggregate
value of EXECUTIVE's compensation package as they exist at such time.
(e) RESIGNATION. EXECUTIVE retains the right to resign or
otherwise voluntarily terminate his employment with COMPANY upon ninety (90)
days' written notice to the Chief Executive Officer of MEDIBUY. In the event
EXECUTIVE resigns or otherwise voluntarily terminates his employment with
COMPANY (other than for Good Reason as defined above), EXECUTIVE shall not be
entitled to any compensation, including benefits, beyond the effective date of
his resignation.
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(f) STOCK OPTIONS. Except as provided in Section 3(c)(ii) herein,
any shares subject to the Option that are unvested as of the date of
EXECUTIVES's termination, for whatever reason or no reason, shall be null and
void.
6. RESTRICTIVE COVENANTS: NONCOMPETITION, CONFIDENTIALITY AND CONFLICTS
OF INTEREST.
(a) CONFIDENTIAL INFORMATION: EXECUTIVE agrees and understands
that, due to the nature of his position with COMPANY, he will gain possession of
confidential information about MEDIBUY and COMPANY and the way each conducts its
business. In conjunction with the execution of, and as part of the consideration
given for, this Agreement, EXECUTIVE will execute the Proprietary Information
and Inventions Agreement that is attached to this Agreement as Appendix B.
EXECUTIVE's duties and obligations under Appendix B shall survive termination of
his employment with COMPANY.
(b) NON-COMPETITION. During the Noncompetition Period (defined in
Section 6(g) herein), EXECUTIVE shall not, and shall not permit any of
EXECUTIVE's Affiliates (defined in Section 6(g) herein) to, without first
obtaining the prior written approval of MEDIBUY's Chief Executive Officer or
Board of Directors:
(i) directly or indirectly engage in any activities in
Competition (defined in Section 6(g) herein) in any Restricted Territory
(defined in Section 6(g) herein); or
(ii) become an employee, officer, director, stockholder,
owner, co-owner, affiliate, partner, promoter, employee, agent, representative,
designer, consultant, advisor, manager, licensor, sublicensor, licensee or
sublicensee of, for or to, or otherwise be or become
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associated with or acquire or hold (of record, beneficially or otherwise) any
direct or indirect interest in, any entity or person that engages directly or
indirectly in Competition in any Restricted Territory.
Notwithstanding the foregoing, EXECUTIVE may own, as a passive investor,
securities of any publicly traded companies, provided his beneficial ownership
of the stock of any one such corporation does not exceed 1% of such
corporation's voting stock.
(c) CONFLICTS OF INTEREST. During the Noncompetition Period,
EXECUTIVE agrees not to acquire, assume or participate in, directly or
indirectly, any position, investment or interest known by him to be adverse or
antagonistic to MEDIBUY's, COMPANY's, and/or any of their Affiliates', business
or prospects, financial or otherwise. However, EXECUTIVE may own, as a passive
investor, securities of any publicly traded companies, provided his beneficial
ownership of the stock of any one such corporation does not exceed 1% of such
corporation's voting stock.
(d) NON-INTERFERENCE. During the Noncompetition Period, EXECUTIVE
will not interfere with the business of MEDIBUY or COMPANY, or any of their
Affiliates by:
(i) directly or indirectly, personally or through others,
encouraging, inducing, soliciting, attempting to solicit on EXECUTIVE's behalf
or on behalf of any other Person, induce, or otherwise cause any employee of
MEDIBUY, COMPANY or any of their Affiliates to terminate his or her employment
with MEDIBUY, COMPANY or any of their Affiliates.
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(ii) directly or indirectly, personally or through others,
encouraging, inducing, soliciting, attempting to solicit on EXECUTIVE's own
behalf or on behalf of any other Person the business of any customer of MEDIBUY,
COMPANY or any of their Affiliates, which at the time of termination or one year
prior thereto was listed on COMPANY's, MEDIBUY's and/or any of their Affiliates'
customer list.
(e) SPECIFIC PERFORMANCE. EXECUTIVE agrees that in the event of
any breach or threatened breach by EXECUTIVE of any covenant or obligation
contained in this Section 6, MEDIBUY and/or COMPANY shall be entitled (in
addition to seeking any other remedy which may be available to it, including
monetary damages) to seek and obtain: (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
EXECUTIVE further agrees that neither MEDIBUY nor COMPANY shall be required to
obtain, furnish or post any bond or similar instrument in connection with or as
a condition to obtaining any remedy referred to in this Section 6(e), and
EXECUTIVE irrevocably waives any right he may have to require MEDIBUY or COMPANY
to obtain furnish or post any such bond or similar instrument.
(f) INDEMNIFICATION. Without in any way limiting any of the
rights or remedies otherwise available to the COMPANY, EXECUTIVE shall indemnify
and hold harmless MEDIBUY and COMPANY and their Affiliates against and from any
loss, damage, injury, harm, detriment, lost opportunity, liability, exposure,
claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including
attorneys' fees) , charge or expense (whether or not relating to a third party
claim) that is directly or indirectly suffered or incurred at any time by
MEDIBUY or COMPANY, or to which MEDIBUY or COMPANY otherwise becomes
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subject at any time and that arises directly or indirectly out of or by virtue
of, or relates directly or indirectly to, (a) any inaccuracy in or breach of any
representation or warranty contained in this Section 6, or (b) any failure on
the part of EXECUTIVE to observe, perform or abide by, or any other breach of,
any restriction, covenant, obligation or other provision contained in this
Section 6.
(g) DEFINED TERMS. For purposes of this Section 6 of this
Agreement:
(i) "Affiliate" means, with respect to any specified Person,
any other Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with such
specified Person.
(ii) "Competition." An activity is deemed to be in
"Competition" if it is similar to or competitive with any business in which
MEDIBUY, COMPANY or any of their Affiliates is engaged during EXECUTIVE's
employment with COMPANY, including as of the date on which EXECUTIVE's
employment with COMPANY terminates.
(iii) "Noncompetition Period" shall mean the period
commencing on the date of this Agreement and ending on the date one year
following the date of the termination of EXECUTIVE's employment with COMPANY for
any reason.
(iv) "Person" means any: (i) individual; (ii) corporation,
general partnership, limited partnership, limited liability partnership, trust,
company (including any limited liability company or joint stock company) or
other organization or entity; or (iii) governmental body or authority.
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(v) "Restricted Territory" means each county or similar
political subdivision of each State of the United States of America (including
each of the counties in the State of California), and each State, territory or
possession of the United States of America.
7. NOTICES.
For purposes of this Agreement, notices and other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States Registered or
Certified Mail, return receipt requested, postage prepaid, addressed as follows:
If to EXECUTIVE: Xxx Xxxxx
0000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
If to MEDIBUY or COMPANY: xxxxxxx.xxx, Inc.
00000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Chief Executive Officer
or at such other address as any party may have furnished to the other in writing
subsequent to the execution of this Agreement or, in the case of EXECUTIVE, to
the address listed for him in COMPANY's records, and in the case of COMPANY or
MEDIBUY, to the address known by him to be where the office of the Chief
Executive Officer of MEDIBUY is located.
8. ATTENDANCE AT BOARD OF DIRECTOR'S MEETINGS.
EXECUTIVE shall be entitled to attend Board of Directors' meetings of
the COMPANY and MEDIBUY (subject to the Board of Directors' exclusion of
EXECUTIVE as the Board may deem necessary to preserve the confidentiality of
sensitive information) and, in connection therewith, to receive timely notice of
meetings and all written materials provided to Directors in
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advance of and during the meetings. EXECUTIVE's attendance and notice rights
under this section shall terminate effective upon the initial public offering of
MEDIBUY's or COMPANY's securities.
9. MODIFICATIONS; WAIVERS; APPLICABLE LAW.
No provision in this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing, signed by
EXECUTIVE and by the Chief Executive Officer of MEDIBUY. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Utah.
10. INDEMNIFICATION.
As an officer of COMPANY, EXECUTIVE shall be fully indemnified by
COMPANY and MEDIBUY to the fullest extent permitted by Utah law and COMPANY's
and MEDIBUY's bylaws, as they may be amended from time to time. EXECUTIVE will
be designated as an insured under MEDIBUY's Director's and Officer's liability
insurance policy.
11. SEVERABILITY.
If any provision of this Agreement or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
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unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
12. SUCCESSOR RIGHTS AND ASSIGNMENT.
This Agreement shall bind, inure to the benefit of and be enforceable by
EXECUTIVE's personal or legal representatives, executors, administrators,
successors, heirs, distributees, and legatees. The rights and obligations of
COMPANY or MEDIBUY under this Agreement may be assigned by MEDIBUY, in which
event it shall be binding upon, and inure to the benefit of, the person(s) or
entity(ies) to whom it is assigned. EXECUTIVE may not assign his duties
hereunder and he may not assign any of his rights hereunder without the written
consent of MEDIBUY.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, EXECUTIVE , MEDIBUY and COMPANY have executed this
Agreement on the dates indicated below.
EXECUTIVE:
Dated:11/15/99 /s/ Xxx X. Xxxxx
-------------------------- --------------------------------
XXX XXXXX
MEDIBUY:
XXXXXXX.XXX, INC.
Dated:11/22/99 By:/s/ Xxxxxx X. Xxxxxx
-------------------------- -----------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
COMPANY:
PARTNET, INC.
Dated:11/22/99 By:/s/ Xxx X. Xxxxx
-------------------------- -----------------------------
Name: Xxx Xxxxx
Title: President
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APPENDIX A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in Section
__ of the Employment Agreement dated ___________, to which this form is
attached, I, XXX XXXXX, hereby furnish MEDIBUY AND/OR ITS AFFILIATES (the
"Company"), with the following release and waiver ("Release and Waiver").
I hereby release, and forever discharge the Company, its officers,
directors, agents, employees, stockholders, successors, assigns affiliates and
Benefit Plans, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising at any time prior
to and including my employment Termination Date with respect to any claims
relating to my employment and the termination of my employment, including but
not limited to, claims pursuant to any federal, state or local law relating to
employment, including, but not limited to, discrimination claims, claims under
the California Fair Employment and Housing Act, and the Federal Age
Discrimination in Employment Act of 1967, as amended ("ADEA"), or claims for
wrongful termination, breach of the covenant of good faith, contract claims,
tort claims, and wage or benefit claims, including but not limited to, claims
for salary, bonuses, commissions, stock, stock options, vacation pay, fringe
benefits, severance pay or any form of compensation.
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to any claims I may have against the
Company.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this Release and Waiver is knowing and
voluntary, and that the consideration given for this Release and Waiver is in
addition to anything of value to which I was already entitled as an executive of
the Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted
herein does not relate to claims which may arise after this Release and Waiver
is executed; (b) I have the right to consult with an attorney prior to executing
this Release and Waiver (although I may choose voluntarily not to do so); and if
I am over 40 years of age upon execution of this Release and Waiver: (c) I have
twenty-one (21) days from the date of termination of my employment with the
Company in which to consider this Release and Waiver (although I may choose
voluntarily to execute this Release and Waiver earlier); (d) I have seven (7)
days following the execution of this Release and Waiver to revoke my consent to
this Release and Waiver; and (e) this Release and Waiver shall not be effective
until the seven (7) day revocation period has expired.
Date: December 22, 1999 By: /s/ Xxx Xxxxx
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XXX XXXXX
00
XXXXXXXX X
MEDIBUY
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by MEDIBUY
AND/OR ITS AFFILIATES (the "COMPANY"), and the compensation now and hereafter
paid to me, I hereby agree as follows:
1. NONDISCLOSURE.
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
my employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall
mean any and all confidential and/or proprietary knowledge, data or information
of the Company. By way of illustration but not limitation, "PROPRIETARY
INFORMATION" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "INVENTIONS"); and (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers; and (c) information
regarding the skills and compensation of other employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such times, I am
free to use information which is generally known in the trade or industry, which
is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("THIRD PARTY INFORMATION") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and
will not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for the Company) or use, except in
connection with my work for the Company, Third Party Information unless
expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS. During
my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Exhibit A (Previous Inventions) attached hereto a complete list of
all Inventions that I have, alone or jointly with others, conceived, developed
or reduced to practice or caused to be conceived, developed or reduced to
practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"PRIOR INVENTIONS"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Exhibit A but am only to disclose a cursory name for
each such invention, a listing of the party(ies) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that reason. A
space is provided on Exhibit A for such purpose. If no such
20
disclosure is attached, I represent that there are no Prior Inventions. If, in
the course of my employment with the Company, I incorporate a Prior Invention
into a Company product, process or machine, the Company is hereby granted and
shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide
license (with rights to sublicense through multiple tiers of sublicensees) to
make, have made, modify, use and sell such Prior Invention. Notwithstanding the
foregoing, I agree that I will not incorporate, or permit to be incorporated,
Prior Inventions in any Company Inventions without the Company's prior written
consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I hereby
assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. I recognize that, in the event of a
specifically applicable state law, regulation, rule, or public policy ("SPECIFIC
INVENTIONS LAW"), this Agreement will not be deemed to require assignment of any
invention which qualifies fully for protection under a Specific Inventions Law
by virtue of the fact that any such invention was, for example, developed
entirely on my own time without using the Company's equipment, supplies,
facilities, or trade secrets and neither related to the Company's actual or
anticipated business, research or development, nor resulted from work performed
by me for the Company. In the absence of a Specific Inventions Law, the
preceding sentence will not apply.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under the
provisions of a Specific Inventions Law; and I will at that time provide to the
Company in writing all evidence necessary to substantiate that belief. The
Company will keep in confidence and will not use for any purpose or disclose to
third parties without my consent any confidential information disclosed in
writing to the Company pursuant to this Agreement relating to Inventions that
qualify fully for protection under a Specific Inventions Law. I will preserve
the confidentiality of any Invention that does not fully qualify for protection
under a Specific Inventions Law.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, which appointment is coupled with an interest, to act for and
in my behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
shall be available to and remain the sole property of the Company at all times.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment by the
Company I will not, without the Company's express written consent, engage in any
employment or business activity which is competitive with, or would otherwise
conflict with, my employment by the
21
Company. I agree further that for the period of my employment by the Company and
for one (l) year after the date of termination of my employment by the Company I
will not induce any employee of the Company to leave the employ of the Company.
5. NO CONFLICTING OBLIGATION. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence information acquired by me in confidence or
in trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any agreement either written or oral in conflict
herewith.
6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I further agree that any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement.
7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
8. NOTICES. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three (3) days after the date of mailing.
9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights
and obligations under this Agreement.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by and construed according to the laws of the State of Utah, as
such laws are applied to agreements entered into and to be performed entirely
within Utah between Utah residents. I hereby expressly consent to the personal
jurisdiction of the state and federal courts located in Utah for any lawsuit
filed there against me by Company arising from or related to this Agreement.
10.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
10.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
10.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
10.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously employed,
or am in the future employed, by the Company as a consultant if no other
agreement governs nondisclosure and assignment of inventions during such period.
This Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
22
This Agreement shall be effective as of the first day of my employment
with the Company, namely: November 22 1999.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: November, 15, 1999
Xxx X. Xxxxx
----------------------------
(SIGNATURE)
Xxx X. Xxxxx
----------------------------
XXX XXXXX
ACCEPTED AND AGREED TO:
XXXXXXX.XXX, INC.
By: Xxxxxx X. Xxxxxx
-------------------------
Title: President & CEO
----------------------
00000 Xxxxxxx Xxxxxxx Xxxx.
----------------------------
(Address)
Xxx Xxxxx, XX 00000
----------------------------
Dated:
--------------
PARTNET, INC.
By: Xxx X. Xxxxx
-------------------------
Title: President
----------------------
000 Xxxxxxx Xx. #000
----------------------------
(Address)
XXX, Xx 00000
----------------------------
Dated: 11/15/99
--------------
23
EXHIBIT A
TO: MEDIBUY AND/OR ITS AFFILIATES
FROM: XXX XXXXX
DATE: _____________________
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete list
of all inventions or improvements relevant to the subject matter of my
employment by MEDIBUY AND/OR ITS AFFILIATES (the "COMPANY") that have been made
or conceived or first reduced to practice by me alone or jointly with others
prior to my engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(ies) RELATIONSHIP
1. ________________________ _____________________ __________________________________
2. ________________________ _____________________ __________________________________
3. ________________________ _____________________ __________________________________
[ ] Additional sheets attached.
