EXHIBIT B10
EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
This Employment, Confidentiality and Noncompetition Agreement (the
"Agreement") is made and entered into as of this 1st day of August, 2000 by and
between MEDIQUIK SERVICES, INC., a Delaware corporation ("Employer"), and GRANT
M. GABLES ("Employee").
In consideration of the mutual promises and covenants contained in this
Agreement, the receipt and legal sufficiency of which consideration are hereby
acknowledged, the parties hereby agree as follows:
1. Duties. Employer shall employ Employee and Employee shall work
for Employer in the employment position described in Exhibit A attached, which
is by this reference incorporated into and made a part of this Agreement. In
this position, Employee shall perform all assigned duties, comply with all
employment policies, and willingly obey all responsible rules, regulations and
special instructions that now exist or that may in the future be established by
Employer from time to time. Employee shall render such services and perform such
duties at such places or in such areas or territories as Employer shall direct,
provided however, that if Employer relocates Employee from Houston, Texas
without the concurrence of Employee, such action by Employer shall, at the
option of Employee, constitute a termination of Employee by Employer without
cause.
2. Employee Performance. Employee accepts employment with Employer
on the terms and conditions provided in this Agreement. Employee recognizes that
Employee owes to Employer duties of loyalty, fidelity and obedience in all
matters pertaining to such employment. Employee shall serve Employer diligently
and faithfully, shall timely perform all duties to the best of Employee's
ability and in compliance with Employer's reasonable standards of performance,
and shall devote Employee's full time and best efforts to the conduct of
Employer's business. Employee warrants that all information provided by Employee
is true and correct.
3. Compensation. In consideration for the services of Employee
rendered to Employer pursuant to the terms of this Agreement, and subject to the
full performance of the Employee's obligations hereunder, Employer shall pay
Employee according to the provisions of Employer's compensation plan as
described in Exhibit A. Employee shall receive no compensation or benefits,
including but not limited to paid holidays, paid vacation and paid health
insurance, that are not set forth in Exhibit A.
4. Employment.
A. Term of Employment. Employee's term of employment under
this Agreement shall commence on August 1st, 2000 and shall continue until the
same date two years later unless prior to that date (a) Employer, for "Cause"
(as defined below), terminates Employer's employment of employee, or (b)
Employer and Employee mutually agree to the termination or extension of
Employee's employment, in writing signed by both of them in accordance with
Section 9(g) of this Agreement. (c) there occurs one of the four following
events the occurrence of which shall be considered a termination without cause:
1) a merger in which the Employer is not the surviving entity, 2) a sale of
substantially all of the assets of Company, 3) a transaction or series of
transactions pursuant to which the Employer adopts a plan of dissolution or
liquidation, or 4) any other organization, consolidation or transaction in which
current owners no longer maintain either voting control or the ability to elect
a
majority of the directors of the Employer (post MiraQuest transaction), (d)
Employee provides Employer one hundred and eighty (180) days notice of his
intention to terminate his employment with Employer, or (e) Employee becomes
disabled thus impairing his ability to perform his duties, which condition shall
be treated as a termination without cause and the pay and benefits associated
with termination without cause shall apply. In the event of Employee's giving
notice of intent to resign, the Employer has the choice of releasing Employee of
his duties and obligations and continuing his compensation and benefits for the
one hundred and eighty (180) day period or requiring Employee to continue his
duties and meeting his obligations as an Employee until the expiration of the
one hundred and eighty (180) day period.
B. Termination of Employment. During the term of this
Agreement, the Employer may terminate the employment of the Employee for "Cause"
by giving the Employee written notice of such termination setting forth the
"Cause" relied upon. For the purposes of this Agreement, "Cause" shall include
but not be limited to (i) the Employee's disregard of lawful instructions of the
Employer that are consistent with the Employee's position and duties set forth
herein; (ii) the Employee's failure to perform Employee's duties in compliance
with Employer's reasonable standards of performance and not as a result of
notice of intention to resign, disability or retirement; (iii) the Employee's
willful actions which do or are likely to result unjustifiably in material
damage or embarrassment to the Employer, the Employer's reputation, or the
Employer's other legitimate business interests; (iv) the Employee's abuse or
illegal use of alcohol other drugs or controlled substances; (v) the Employee's
material breach of any of the terms or conditions of the Agreement; (vi) the
conviction of the Employee of a felony or entry of a guilty plea or plea of nolo
contendere by Employee to a felony (or any other crime that has or might have a
material adverse effect upon Employee's ability to carry out Employee's job
duties or other obligations under this Agreement); or (vii) the Employee's
theft, embezzlement or misappropriation of funds from the Employer. In the event
Employer wishes to terminate Employee's employment pursuant to Subsection (i),
(ii), (iv), or (v) above, Employer shall give to Employee thirty (30) days'
notice of Employer's intention to terminate Employee's employment and the
reason(s) for such termination. If Employee wishes to remain employed by
Employer, Employee shall during such thirty (30) day period remedy to the
reasonable satisfaction of Employer's Board of Directors the misconduct,
disregard, abuse, or other breach specified in such notice. If Employee does not
so remedy such breach to the reasonable satisfaction of Employer's Board of
Directors, then the termination shall take effect at the end of the thirty (30)
day period. A termination pursuant to Subsection (vi) or (vii) shall take effect
immediately upon the giving of notice. Achievement of desired results or
performance established as a goal by the Employer shall not be a basis of
termination for Cause. Any benefits or compensation to be earned based on
performance criteria will terminate with employee's termination whether with or
without cause.
C. Termination without Cause. Employer may terminate the
Employee's employment without Cause at any time within the Employee's first 120
days of employment upon payment to Employee of severance compensation equivalent
to compensation for 210 days of employment reduced by the compensation paid to
Employee through the date of termination. After Employee has been employed and
paid for the excess of 120 days, Employer may terminate the employment of the
Employee without Cause upon payment to Employee of severance compensation
equivalent to compensation for six (6) months, including all benefits. Equity
compensation is not included as component of the termination without cause
severance compensation calculation.
D. Equal Opportunity Employer. Employer is an Equal Employment
Opportunity organization and shall not discriminate against Employee on the
basis of age, color, creed, disability, marital status, national origin,
political ideology, race, religion, sex, sexual orientation, or status as a
disabled veteran or veteran of the Vietnam war era, with respect to promotion,
transfer, compensation benefits or any other employment decision.
E. Work Environment. In addition, Employer is committed to
maintaining a positive, constructive working environment and will not tolerate
harassment or abuse of Employee in the workplace. If Employee feels Employee has
been subject to discrimination, harassment or abuse of Employee in connection
with Employee's employment, Employer encourages Employee to bring any and all
such matters to the attention of Employer's chief human resources officer and/or
Board of Directors, who will conduct an investigation of all such matters
brought to their attention and take such personnel action as is appropriate
under the circumstances. Employee will not be subjected to retaliation for
submitting complaints to Employer's chief human resources officer and/or Board
of Directors.
5. Confidential Information.
A. Definition of Confidential Information. Employer is in the
business of providing chronic disease management services and other related
services, and Employer has built up an established and extensive trade and
reputation in the industry . Employer has developed and continues to develop
commercially valuable technical and non-technical information ("Confidential
Information") that is proprietary and confidential and/or constitutes Employer's
"trade secrets" as defined by the Texas Trade Secrets Act. Such Confidential
Information, which is vital to the success of Employer's business, includes, but
is not necessarily limited to: programs, computer programs, system
documentation, data compilations, manuals, methods, techniques, processes,
patented and/or unpatented technology, research, know-how, development, designs,
devices, inventions, the identities of customers, prospective customers,
suppliers and prospective suppliers, contracts with suppliers and customers,
sales proposals, methods of sales, marketing research and data, pricing
policies, cost information, financial information, business plans, specialized
requests of Employer's customers, and other materials and documents developed by
Employer. Confidential Information also includes special hardware, product
hardware, related software and related documentation, either owned by Employer
or in Employer's possession under an agreement of nondisclosure. Through
Employee's employment, Employee may become acquainted with or contribute to the
Employer's Confidential Information through inventions, discoveries,
improvement, software development, and/or in other ways.
B. Employee Access to Confidential Information. Employee shall
(a) access only such Confidential Information as is reasonably necessary to
perform Employee's job functions, and (b) allow access to Confidential
Information under Employee's control to only those of Employee's co-employees
whose job functions for Employer reasonably necessitate access to such
Confidential Information.
C. Nondisclosure of Confidential Information. Employee shall
not, at any time, either during or subsequent to employment, directly or
indirectly, appropriate, disclose or divulge any Confidential Information to any
person not then employed by Employer, unless authorized or directed to do so by
Employer or required to do so by a court or other governmental entity acting
with the force of law. If Employer authorizes or directs Employee to disclose
Confidential Information to any third party, Employee must ensure that a signed
confidentiality agreement for the benefit of Employer is or has been obtained
from the third party to whom Confidential Information is being disclosed and
that all Confidential Information so disclosed is clearly marked "Confidential."
D. Return of Confidential and Other Information. All
Confidential Information provided to Employee, and all documents and things
prepared by Employee in the course of Employee's employment, including but not
necessarily limited to correspondence, drawings, blueprints, manuals, letters,
notes, lists, reports, flow-charts, computer programs, proposals, notebooks,
DayTimers, planners, calendars, schedules, discs, data tapes, financial plans
and information, business plans, and other documents and records, whether in
hard copy, magnetic media or otherwise, and any and all copies
thereof, are the exclusive property of Employer and shall be returned
immediately to Employer upon termination of employment or upon Employer's
request at any time.
E. Ownership of Confidential Information. Employee hereby
grants to Employer, and Employer hereby accepts, the entire right, title, and
interest of Employee in and to any of the Confidential Information created or
developed by Employee, or that may be created or developed by Employee during
the term of the Employee's employment by Employer (whether created or developed
within or outside the course and scope of Employee's employment by Employer),
including, but not limited to, all patents, copyrights, trade secrets, and other
proprietary rights in or based on the Confidential Information. If the
Confidential Information or any portion thereof is copyrightable, it shall be
deemed to be a "work made for hire," as such term is defined in the copyright
laws of the United States. Employee shall cooperate with Employer or its
designees and execute assignments, oaths, declarations, and other documents
prepared by Employer, to effect the terms of this Section 5(E) or to perfect or
enforce any proprietary rights resulting from or related to this Agreement. Such
cooperation and execution shall be at no additional compensation to Employee;
provided, however, Employer shall reimburse Employee for reasonable
out-of-pocket expenses incurred at the specific request of Employer.
6. Noncompetition Obligations. During the term of Employee's
employment with Employer, and for a 12 month period of time following
termination of such employment for any reason, Employee will not, directly or
indirectly, at any place in the United States, either for him/herself or on
behalf of any other person, partnership, corporation or other entity:
(a) solicit, divert, take away, or attempt to solicit,
divert or take away, any of Employer's customers or the
business or patronage of any such customer;
(b) solicit, recruit or hire any other employee of Employer;
or
(c) otherwise engage or become interested (as owner,
stockholder, partner, director, officer, member,
creditor, consultant, or employee) in any business in
competition with any portion of the business conducted
by Employer at any time during Employee's employment
with Employer unless such activity is set forth in
Exhibit B as an activity in which Employee is engaged on
the Effective Date of this Agreement is initiated.
Employee acknowledges that Employer is doing business throughout the United
States, that Employee is reasonably expected to have contact with Employer's
customers throughout the United States during the term of Employee's employment
with Employer, and that the national geographic scope of these covenants is
reasonably necessary to protect Employer's legitimate business interests.
7. Enforcement.
A. Reasonableness of Restrictions. Employee's compliance with
this Agreement is reasonable and necessary to protect Employer's legitimate
business interests, including but not limited to Employer's goodwill.
B. Irreparable Harm. A breach of Employee's obligations under
this Agreement will result in great, irreparable and continuing harm and damage
to Employer for which there is no adequate remedy at law.
C. Injunctive Relief. In the event Employee breaches this
Agreement, Employer shall be entitled to seek, from any court of competent
jurisdiction, preliminary and permanent injunctive relief to enforce the terms
of this Agreement, in addition to any and all monetary damages allowed by law,
against Employee.
D. Extension of Covenants. In the event Employee violates any
one or more of the covenants contained in Section 6 of this Agreement, Employee
agrees that the running of the term of each covenant so violated shall be tolled
during the period(s) of any such violation and the pendency of any litigation
arising out of any such violation.
E. Judicial Modification. The parties have attempted to limit
the Employee's right to compete only to the extent necessary to protect Employer
from unfair business practices and/or unfair competition. The parties recognize,
however, that reasonable people may differ in making such a determination.
Consequently, the parties hereby agree that, if the scope or enforceability of
the restrictive covenant is in any way disputed at any time, a court or other
trier of fact may modify and enforce the covenant to the extent that it believes
to be reasonable under the circumstances existing at that time.
F. Attorney Fees. In the event it becomes necessary for either
party to this Agreement to institute a suit at law or in equity for the purposes
of enforcing any of the provisions of this Agreement, the prevailing party shall
be entitled to recover said party's reasonable attorney's fees, plus court costs
and expenses, from the nonprevailing party.
Withholding from Final Paycheck. Employee expressly authorizes
Employer to withhold and deduct from Employee's final wages any amounts owed by
Employee to Employer at the time of the termination of employment, including but
not limited to, any draw deficiencies, reimbursement for unearned commissions,
and the value of unreturned or damaged Employer property. Employee further
expressly agrees to repay to Employer any additional sums owed by Employee to
Employer (above that which may be withheld) immediately upon termination of
Employee's employment. If the Company owes the Employee amounts exceeding those
that the Employee may owe the Company as outlined above, the Company agrees to
pay this amount at the time of the final paycheck. This amount would include all
monetary and stock compensation that may have been accrued but not paid by the
Company to Employee.
8. Indemnity. Employee warrants and represents that Employee has not
violated, is not violating, and will not violate any of the terms or conditions
of any prior employment agreement, noncompetition or other restrictive covenant,
or other agreement entered into by Employee while in the employment of any other
employer; that Employee has not given and will not give to Employer at any time
any customer list, trade secret, or any other item of confidential information,
obtained or received while in the employment of any other employer; that
Employee's employment with Employer is not restricted or limited in any way by
any such employment agreement or restrictive covenant or by operation of any
state, federal or local regulation, statute or other law of any kind, name or
nature, including but not limited to trade secret laws and immigration laws; and
that Employee is in all respects duly qualified and eligible to work for
Employer. In the event any legal or administrative action is commenced against
the Employee, Employer or both, arising out of Employee's former employment by
another employer or Employee's illegal action or violation of one or more of the
warranties or representations set forth in this section, Employee agrees to
indemnify Employer for all damages, costs and expenses, including reasonable
attorney fees, which Employer may incur and/or be required to pay in connection
with such legal or administrative action. In the event any legal or
administrative action is commenced against the Company, the Employee or both,
arising out of any matter involving the Company, Company agrees to indemnify
Employee for all damages, costs and expenses, including
reasonable attorney fees, which Employee may incur and/or be required to pay in
connection with such legal or administrative action, so long as such action does
not arise pursuant to the conduct of the Employee.
9. Miscellaneous.
A. Survival. This Agreement shall be effective as of the date
first written above and that the terms of this Agreement shall remain in full
force and effect not only during the continuation of Employee's employment, but
also after the termination of employment for any reason by Employer or Employee.
B. Waiver. Failure of the Employer to exercise or otherwise
act with respect to any of its rights under this Agreement shall not be
construed as a waiver of any breach, nor prevent the Employer or Employee from
thereafter enforcing strict compliance with any and all terms of this Agreement.
C. Severability. If any part of this Agreement shall be
adjudicated to be invalid or unenforceable, as to duration, territory or
otherwise, then such part shall be deemed deleted from this Agreement or
amended, as the case may be, in order to render the remainder of this Agreement
valid and enforceable.
D. Agreement Binding. This Agreement shall be binding upon and
inure to the benefit of Employer, Employer's successors and assigns, Employee
and Employee's heirs, executors, administrators and legal representatives.
E. Governing Law. This Agreement is made and entered into in
the State of Texas, where Employer has its principal place of business, and
concerns employment situated in said state. This Agreement shall be interpreted
and construed in accordance with the laws of the State of Texas.
F. Titles and Captions. All section and paragraph titles and
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the construction or interpretation of this
Agreement.
G. Entire Agreement. This Agreement contains all the
understandings and agreements between the parties concerning matters set forth
in this Agreement. The terms of this Agreement supersede any and all prior
statement, representations and agreements by or between Employer and Employee,
or either of them, concerning the matters set forth in this Agreement. Employee
acknowledges that no person who is an agent or employee of Employer may orally
or by conduct modify, delete, vary, or contradict the terms or conditions of
this Agreement or this paragraph. This Agreement may be modified only by a
written agreement signed by both parties.
Employee acknowledges that Employee has read and understands
the entire contents of this Agreement and that Employee has received a copy of
this Agreement.
EMPLOYER:
MEDIQUIK SERVICES, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------
Its CEO
EMPLOYEE:
/s/ Grant M. Gables
-----------------------------
Grant M. Gables
EXHIBIT A TO EMPLOYMENT, CONFIDENTIALITY
AND NONCOMPETITION AGREEMENT
DATED August 1, 2000
Employee's Job Title: President and Chief Operating Officer
Compensation Plan:
A. Base Salary: $9,167 / month, paid biweekly to Employee
B. Performance Based Cash Bonuses:
1. 20% of Annualized Base Salary upon MediQuik achieving two
consecutive quarters of positive operating cash flow (EBIDTA).
2. 20% of Annualized Base Salary upon MediQuik achieving 1
reportable quarter of financial profit.
C. Stock Option Program (priced at market for a term of 10 years):
1. Time Bonus:
a. 25,000 options vested at the end of the first year
of employment.
b. 6,250 options vested each quarter of the second
year of employment.
2. Performance Bonus:
a. 25,000 options vested upon MediQuik achieving two
consecutive quarters of positive operating cash
flow (EBIDTA).
c. 25,000 options vested upon MediQuik achieving 1
reportable quarter of financial profit.
Executive Benefits:
1. Health, Life and Disability Insurance, including Dental and
Vision Benefits.
2. Vacation - 2 weeks annually accrued at 1 week for every 6
months. 3 weeks annually after first year of employment.
EMPLOYER:
MEDIQUIK SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Its CEO
EMPLOYEE:
/s/ Grant M. Gables
----------------------------------
Grant M. Gables
ENGAGEMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMEN'
This Confidentiality and NonCompetition Agreement (this "Agreement") is
made and entered into as of this 23rd day of August, 2000 by and between
MEDIQUIK SERVICES INC., a Delaware corporation ("Company"), and XXXXXX X.
XXXXXX, M.D.P.A. ("Chief Executive Officer "), a professional association of
which Xxxxxx Xxxxxx, M.D. is its sole employee. Xxxxxx Xxxxxx, M.D. will be
solely responsible for the representations and duties of the professional
association pursuant to this agreement.
In consideration of the mutual promises and covenants contained in this
Agreement, the receipt and legal sufficiency of which consideration are hereby
acknowledged the parties agree as follows:
1. Duties. Company shall contract with Chief Executive Officer and Chief
Executive Officer shall work for Company in the position described in Exhibit A
attached, which is by this reference incorporated into and made a part of this
Agreement. In this position, Chief Executive Officer shall perform all assigned
duties, comply with all employment policies, and willingly follow all applicable
rules, regulations and special instructions that now exist or that may in the
future be established by Company from time to time for Company's operations.
Chief Executive Officer shall render such services and perform such duties at
such places or in such areas or territories as required for Company's operation,
provided however, that if Company relocates Chief Executive Officer from
Houston, Texas without the concurrence of Chief Executive Officer, such action
by Company shall, at the option of Chief Executive Officer constitute a
termination of Chief Executive Officer by Company without cause. Xxxxxx X.
Xxxxxx shall serve as a member of the Board of Directors of Company during the
term of his engagement as Chief Executive Officer.
2. Chief Executive Officer Performance. Chief Executive Officer accepts
this contract with Company on the terms and conditions provided in this
Agreement. Chief Executive Officer recognizes that Chief Executive Officer owes
to Company duties of loyalty, fidelity and obedience in all matters pertaining
to such engagement. Chief Executive Officer shall serve Company diligently and
faithfully, shall timely perform all duties to the best of Chief Executive
Officer's ability and in compliance with Company's reasonable standards of
performance, and shall devote Chief Executive Officer's best efforts to the
conduct of Company's business. Chief Executive Officer warrants that all
information provided by Chief Executive Officer is true and correct.
3. Compensation. In consideration for the services of Chief Executive
Officer rendered to Company pursuant to the terms of this Agreement, and subject
to the performance of Chief Executive Officer's obligations hereunder, Company
shall pay Chief Executive Officer according to the provisions of the Company's
compensation plan as described in Exhibit A. Chief Executive Officer shall
receive no compensation or benefits including but not limited to paid holidays,
paid vacation and paid health insurance, that are not set forth in Exhibit A.
Chief Executive Officer is considered an "Independent Contractor" pursuant to
the terms of this agreement.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 1
060200 1050
4. Engagement.
A. Term of Engagement. Chief Executive Officer's term of engagement
under this Agreement shall commence on August 22, 2000 and shall continue until
(a) terminated by Company, for "Cause" (as defined below), or (b) Company and
Chief Executive Officer mutually agree to the termination or extension of Chief
Executive Officer's engagement, in writing signed by both of them in accordance
with Section 9(G) of this Agreement (c) there occurs one of the four following
events the occurrence of which shall be considered a termination without cause:
1) a merger in which the Company is not the surviving entity, 2) a sale of
substantially all of the assets of Company, 3) a transaction or series of
transactions pursuant to which the Company adopts a plan of dissolution or
liquidation, or 4) any other organization, consolidation or transaction in which
current owners no longer maintain either voting control or the ability to elect
a majority of the directors of the Company (post MiraQuest transaction), (d)
Chief Executive Officer provides Company ninety (90) days notice of his
intention to terminate his engagement with Company, or (e) Chief Executive
Officer becomes disabled thus impairing his ability to perform his duties, which
condition shall be treated as a termination without cause and the pay and
benefits associated with termination without cause shall apply. In the event of
Chief Executive Officer's giving notice of intent to resign, the Company has the
choice of releasing Chief Executive Officer of his duties and obligations and
continuing his compensation and benefits for the ninety (90) day period or
requiring Chief Executive Officer to continue his duties and meeting his
obligations as an Chief Executive Officer until the expiration of the ninety
(90) day period.
B. Termination of Engagement. During the term of this Agreement, the
Company may terminate the engagement of the Chief Executive Officer for "Cause"
by giving the Chief Executive Officer written notice of such termination setting
forth the "Cause" relied upon. For the purposes of this Agreement, "Cause" shall
include but not be limited to (i) the Chief Executive Officer's disregard of
lawful instructions of the Company that are consistent with the Chief Executive
Officer's position and duties set forth herein; (ii) the Chief Executive
Officer's failure to perform Chief Executive Officer's duties in compliance with
Company's reasonable standards of performance and not as a result of notice of
intention to resign, disability or retirement; (iii) the Chief Executive
Officer's willful actions which do or are likely to result unjustifiably in
material damage or embarrassment to the Company, the Company's reputation, or
the Company's other legitimate business interests ; (iv) the Chief Executive
Officer's abuse or illegal use of alcohol or other drugs or controlled
substances; (v) the Chief Executive Officer's material breach of any of the
terms or conditions of this Agreement; (vi) the conviction of the Chief
Executive Officer of a felony or entry of a guilty plea or plea of nolo
contendere by Chief Executive Officer to a felony (or any other crime that has
or might have a material adverse effect upon Chief Executive Officer's ability
to carry out Chief Executive Officer's job duties or other obligations under
this Agreement); or (vii) the Chief Executive Officer's theft, embezzlement or
misappropriation of funds from the Company. In the event Company wishes to
terminate Chief Executive Officer's engagement pursuant to Subsection (i), (ii),
(iii), (iv), or (v) above, Company shall give to Chief Executive Officer thirty
(30) days' notice of Company's intention to terminate Chief Executive Officer's
engagement and the reason(s) for such termination. If Chief Executive Officer
wishes to remain engaged by Company, Chief Executive Officer shall during such
thirty (30) day period remedy to the reasonable satisfaction of Company's Board
of Directors the misconduct, disregard, abuse, or other breach specified in such
notice. If Chief Executive
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 2
060200 1050
Officer does not so remedy such breach to the reasonable satisfaction of
Company's Board of Directors, then the termination shall take effect at the end
of the thirty (30) day period. A termination pursuant to Subsection (vi) or
(vii) shall take effect immediately upon the giving of notice. Achievement of
desired results or performance established as a goal by the Company shall not be
a basis of termination for Cause. Any benefits or compensation to be earned
based on performance criteria will terminate with Chief Executive Officer's
termination whether with or without cause.
C. Termination Without Cause. Company may terminate the Chief
Executive Officer's engagement without Cause at any time within the Chief
Executive Officer's first 120 days of engagement upon payment to Chief Executive
Officer of severance compensation equivalent to compensation for 2 10 days of
engagement reduced by the compensation paid to Chief Executive Officer through
the date of termination. After Chief Executive Officer has been employed and
paid for the excess of 120 days, Company may terminate the engagement of the
Chief Executive Officer without Cause upon payment to Chief Executive Officer of
severance compensation equivalent to compensation for six (6) months, including
all benefits. Equity compensation is not included as component of the
termination without cause severance compensation calculation.
D. Equal Opportunity Company. Company is an Equal Employment
Opportunity organization and shall not discriminate against Chief Executive
Officer on the basis of age, color, creed, disability, marital status, national
origin, political ideology, race, religion, sex, sexual orientation, or status
as a disabled veteran or veteran of the Vietnam war era, with respect to
promotion, transfer, compensation, benefits or any other employment decision.
E. Work Environment. In addition, Company is committed to
maintaining a positive, constructive working environment and will not tolerate
harassment or abuse of Chief Executive Officer in the workplace. If Chief
Executive Officer feels Chief Executive Officer has been subjected to
discrimination, harassment or abuse in connection with Chief Executive Officer's
engagement, Company encourages Chief Executive Officer to bring any and all such
matters to the attention of Company's chief human resources officer and/or Board
of Directors, who will conduct an investigation of all such matters brought to
their attention and take such personnel action as is appropriate under the
circumstances. Chief Executive Officer will not be subjected to retaliation for
submitting complaints to Company's chief human resources officer and/or Board of
Directors.
5. Confidential Information.
A. Definition of Confidential Information. Company is in the
business of providing chronic disease management services and other related
services, and Company has built up an established and extensive trade and
reputation in the industry. Company has developed and continues to develop
commercially valuable technical and nontechnical information ("Confidential
Information") that is proprietary and confidential and/or constitutes Company's
"trade secrets" as defined by the Texas Trade Secrets Act. Such Confidential
Information, which is vital to the success of Company's business, includes, but
is not necessarily limited to programs, computer programs, system documentation,
data compilations, manuals, methods, techniques, processes, patented and/or
unpatented technology,
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 3
060200 1050
research, know-how, development, designs, devices, inventions, the identities of
customers, prospective customers, suppliers and prospective suppliers, contracts
with suppliers and customers, sales proposals, methods of sales, marketing
research and data, pricing policies, cost information, financial information,
business plans, specialized requests of Company's customers, and other materials
and documents developed by Company. Confidential Information also includes
special hardware, product hardware, related software and related documentation,
either owned by Company or in Company's possession under an agreement of
nondisclosure. Through Chief Executive Officer's engagement, Chief Executive
Officer may become acquainted with or contribute to the Company's Confidential
Information through inventions, discoveries, improvements, software development,
and/or in other ways.
B. Chief Executive Officer Access to Confidential Information. Chief
Executive Officer shall: (a) access only such Confidential Information as is
reasonably necessary to perform Chief Executive Officer's job functions; and (b)
allow access to Confidential Information under Chief Executive Officer's control
to only those employees whose job functions for Company reasonably necessitate
access to such Confidential Information.
C. Nondisclosure of Confidential Information. Chief Executive
Officer shall not, at any time, either during or subsequent to engagement,
directly or indirectly, appropriate, disclose or divulge any Confidential
Information to any person not then employed by Company, unless authorized or
directed to do so by Company or required to do so by a court or other
governmental entity acting with the force of law. If Company authorizes or
directs Chief Executive Officer to disclose Confidential Information to any
third party, Chief Executive Officer must ensure that a signed confidentiality
agreement for the benefit of Company is or has been obtained from the third
party to whom Confidential Information is being disclosed and that all
Confidential Information so disclosed is clearly marked "Confidential."
D. Return of Confidential and Other Information. All Confidential
Information provided to Chief Executive Officer, and all documents and things
prepared by Chief Executive Officer in the conduct of his duties for Company,
including but not necessarily limited to correspondence, drawings, blueprints,
manuals, letters, notes, lists, reports, flowcharts, computer programs,
proposals, notebooks, DayTimers, planners, calendars, schedules, discs, data
tapes, financial plans and information, business plans, and other documents and
records, whether in hard copy, magnetic media or otherwise, and any and all
copies thereof, are the exclusive property of Company and shall be returned
immediately to Company upon termination of engagement or upon Company's request
at any time.
E. Ownership of Confidential Information. Chief Executive Officer
hereby grants to Company, and Company hereby accepts, the entire right, title,
and interest of Chief Executive Officer in and to any of the Confidential
Information created or developed by Chief Executive Officer for the Company, or
that may be created or developed by Chief Executive Officer for the Company
during the term of the Chief Executive Officer's engagement by Company (as
created or developed within the scope of Chief Executive Officer's engagement by
Company), including, but not limited to, all patents, copyrights, trade secrets,
and other proprietary rights in or based on the Confidential Information. If the
Confidential Information or any portion thereof is copyrightable, it shall be
deemed to be a "work made for hire," as such
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 4
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term is defined in the copyright laws of the United States. Chief Executive
Officer shall cooperate with Company or its designees and execute assignments,
oaths, declarations, and other documents prepared by Company, to effect the
terms, of this Section 5(E) or to perfect or enforce any proprietary rights
resulting from or related to this Agreement. Such cooperation and execution
shall be at no additional compensation to Chief Executive Officer; provided,
however, Company shall reimburse Chief Executive Officer for reasonable
out-of-pocket expenses incurred at the specific request of Company. Company in
turn recognizes that Chief Executive Officer is engaged in other companies and
with other, separate responsibilities, and that, in the course of such separate
engagement he may develop or extend confidential information applicable to such
companies that is not part of his duties within this contract and to which
Company has no right, title or interest. Such recognition shall not be construed
to alter the duties of Chief Executive Officer as set forth in Section 2 of this
agreement.
6. NonCompetition Obligations. During the term of Chief Executive
Officer's engagement with Company, and for a 12 month period of time following
termination of such engagement for any reason, Chief Executive Officer will not,
directly or indirectly, at any place in the United States, either for
him/herself or on behalf of any other person, partnership, corporation or other
entity
(a) solicit, divert, take away, or attempt to solicit, divert or
take away, any of Company's customers or the business or
patronage of any such customer;
(b) solicit, recruit or hire any other Employee of Company; or
(c) otherwise engage or become interested (as owner, stockholder,
partner, director, officer, member, creditor, consultant, or
employee) in any chronic disease management / monitoring
business, including pharmaceutical and medical supply delivery
to patients, in competition with any portion of the chronic
disease management/monitoring business conducted by Company at
any time during Chief Executive Officer's engagement with
Company unless such activity is set forth in Exhibit B as an
activity in which Chief Executive Officer is engaged on the
Effective Date of this Agreement is initiated.
Chief Executive Officer acknowledges that Company is doing business throughout
the United States, that Chief Executive Officer is reasonably expected to have
contact with Company's customers throughout the United States during the term of
Chief Executive Officer's engagement with Company, and that the national
geographic scope of these covenants is reasonably necessary to protect Company's
legitimate business interests.
7. Enforcement.
A. Reasonableness of Restrictions. Chief Executive Officer's
compliance with this Agreement is reasonable and necessary to protect Company's
legitimate business interests, including but not limited to Company's goodwill.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 5
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B. Irreparable Harm. A breach of Chief Executive Officer's
obligations under this Agreement will result in great, irreparable and
continuing harm and damage to Company for which there is no adequate remedy at
law.
C. Injunctive Relief. In the event Chief Executive Officer breaches
this Agreement, Company shall be entitled to seek, from any court of competent
jurisdiction, preliminary and permanent injunctive relief to enforce the terms
of this Agreement, in addition to any and all monetary damages allowed by law,
against Chief Executive Officer.
D. Extension of Covenants. In the event Chief Executive Officer
violates any one or more of the covenants contained in Section 6 of this
Agreement, Chief Executive Officer agrees that the running of the term of each
covenant so violated shall be tolled during the period(s) of any such violation
and the pendency of any litigation arising out of any such violation.
E. Judicial Modification. The parties have attempted to limit the
Chief Executive Officer's right to compete only to the extent necessary to
protect Company from unfair business practices and/or unfair competition. The
parties recognize, however, that reasonable people may differ in making such a
determination. Consequently, the parties hereby agree that, if the scope or
enforceability of the restrictive covenant is in any way disputed at any time, a
court or other trier of fact may modify and enforce the covenant to the extent
that it believes to be reasonable under the circumstances existing at that time.
F. Attorney Fees. In the event it becomes necessary for either party
to this Agreement to institute a suit at law or in equity for the purposes of
enforcing any of the provisions of this Agreement, the prevailing party shall be
entitled to recover said party's reasonable attorney's fees, plus court costs
and expenses, from the nonprevailing party.
G. Withholding from Final Paycheck. Chief Executive Officer
expressly authorizes Company to withhold and deduct from Chief Executive
Officer's final wages any amounts owed by Chief Executive Officer to Company at
the time of the termination of engagement, including but not limited to, any
draw deficiencies, reimbursement for unearned commissions, and the value of
unreturned or damaged Company property. Chief Executive Officer further
expressly agrees to repay to Company any additional sums owed by Chief Executive
Officer to Company (above that which may be withheld) immediately upon
termination of Chief Executive Officer's engagement. If the Company owes the
Chief Executive Officer amounts exceeding those that the Chief Executive Officer
may owe the Company as outlined above, the Company agrees to pay this amount at
the time of the final paycheck. This amount would include all monetary and stock
compensation that may have been accrued but not paid by the Company to Xxxxxx X.
Xxxxxx, whether acting in the role of Chief Executive Officer or prior roles of
Medical Director and Chief Medical Officer.
Indemnity. Chief Executive Officer warrants and represents that
Chief Executive Officer has not violated, is not violating, and will not violate
any of the terms or conditions of any prior employment agreement, noncompetition
or other restrictive covenant, or other agreement entered into by Chief
Executive Officer while in the employment of any other company; that Chief
Executive Officer has not given and will not give to Company at any time
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGRE EMENT - 6
060200 1050
any customer list, trade secret, or any other item of confidential information,
obtained or received while in the employment of any other Company; that Chief
Executive Officer's engagement with Company is not restricted or limited in any
way by any such engagement agreement or restrictive covenant or by operation of
any state, federal or local regulation, statute or other law of any kind, name
or nature, including but not limited to trade secret laws and immigration laws;
and that Chief Executive Officer is in all respects duly qualified and eligible
to work for Company. In the event any legal or administrative action is
commenced against the Chief Executive Officer, Company or both, arising out of
Chief Executive Officer's former employment by another Company or Chief
Executive Officer's illegal action or violation of one or more of the warranties
or representations set forth in this section, Chief Executive Officer agrees to
indemnify Company for all damages, costs and expenses, including reasonable
attorney fees, which Company may incur and/or be required to pay in connection
with such legal or administrative action. Company warrants and represents that
Company has not violated, is not violating, and will not violate any of the
terms or conditions of any prior employment agreement, noncompetition or other
restrictive covenant, or other agreement entered into by Company; that Company's
hiring of Chief Executive Officer is not restricted or limited in any way by any
agreement or restrictive covenant or by operation of any state, federal or local
regulation, statute or other laws. In the event any legal or administrative
action is commenced against the Company, the Chief Executive Officer or both,
arising out of any matter involving the Company, Company agrees to indemnify
Chief Executive Officer for all damages, costs and expenses, including
reasonable attorney fees, which Chief Executive Officer may incur and/or be
required to pay in connection with such legal or administrative action, so long
as such action does not arise pursuant to the conduct of the Chief Executive
Officer.
9. Miscellaneous.
A. Survival. This Agreement shall be effective as of the date first
written above and that the terms of this Agreement shall remain in full force
and effect not only during the continuation of Chief Executive Officer's
engagement, but also after the termination of engagement for any reason by
Company or Chief Executive Officer.
B. Waiver. Failure of the Company to exercise or otherwise act with
respect to any of its rights under this Agreement shall not be construed as a
waiver of any breach, nor prevent the Company or Chief Executive Officer from
thereafter enforcing strict compliance with any and all terms of this Agreement.
C. Severability. If any part of this Agreement shall be adjudicated
to be invalid or unenforceable, as to duration, territory or otherwise, then
such part shall be deemed deleted from this Agreement or amended, as the case
may be, in order to render the remainder of this Agreement valid and
enforceable.
D. Agreement Binding. This Agreement shall be binding upon and inure
to the benefit of Company, Company's successors and assigns, Chief Executive
Officer and Chief Executive Officer's heirs, executors, administrators and legal
representatives.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 7
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EXHIBIT A TO ENGAGEMENT, CONFIDENTIALITY
AND NONCOMPETITION AGREEMENT
DATED August 22, 2000
Job Title: Chief Executive Officer
Compensation Plan:
A. Base Compensation: $10,450 / month, paid biweekly to Xxxxxx X.
Xxxxxx, M.D.,P.A.,
B. Performance Based Cash Bonuses payable to Xxxxxx X. Xxxxxx, MD., PA:
1. 20% of Annual Base Compensation upon MediQuik achieving two
consecutive quarters of positive operating cash flow (EBIDTA).
2. 20% of Annual Base Compensation upon MediQuik achieving 1
reportable quarter of financial profit.
C. Stock Option Program payable to Xxxxxx X. Xxxxxx:
1. Signing Bonus: Stock Option on 50,000 shares MediQuik Class A
Common Stock priced at the market for a term of 10 years.
2. Time Bonus:
a. 50,000 options vested at the end of the first year
of engagement.
b. 12,500 options vested each quarter of the second
year of engagement.
3. Performance Bonus:
a. 50,000 options vested upon MediQuik achieving two
consecutive quarters of positive operating cash
flow (EBIDTA).
b. 50,000 options vested upon MediQuik achieving 1
reportable quarter of financial profit.
COMPANY:
MEDIQUIK SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Its
CHIEF EXECUTIVE OFFICER:
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, M.D., P.A.
A Professional Association
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 9
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E. Governing Law. This Agreement is made and entered into in the
State of Texas, where Company has its principal place of business, and concerns
engagement situated in said state. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Texas.
F. Titles and Captions. All section and paragraph titles and
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the construction or interpretation of this
Agreement.
G. Entire Agreement. This Agreement contains all the understandings
and agreements between the parties concerning matters set forth in this
Agreement. The terms of this Agreement supersede any and all prior statements,
representations and agreements by or between Company and Chief Executive
Officer, or either of them, concerning the matters set forth in this Agreement.
Chief Executive Officer acknowledges that no person who is an agent or Chief
Executive Officer of Company may orally or by conduct modify, delete, vary, or
contradict the terms or conditions of this Agreement or this paragraph. This
Agreement may be modified only by a written agreement signed by both parties.
Chief Executive Officer acknowledges that Chief Executive Officer has read
and understands the entire contents of this Agreement and that Chief Executive
Officer has received a copy of this Agreement.
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Its '
CHIEF EXECUTIVE OFFICER:
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, M.D., P.A.
A Professional Association
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 8
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EXHIBIT B
1. Medical Advisory Board Appointments:
A. Vencor, Inc., Hospital Division
B. XxXxxxxXxxxxx.xxx
C. Compaq Computer Corp. - Corporate Medical Director
2. Board of Directors Appointments:
A. MedeCoach, Inc.
3. Professional Associations
X. Xxxxxx College of Medicine - Associate Professor
4. Significant Owner, Officer and Board Member
A. eMedicalResearch, Inc. - Clinical Research Firm
COMPA NY:
MEDIQUIK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Its: CEO
CHIEF EXECUTIVE, OFFICER:
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, M.D., P.A.
A Professional Association
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 10
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