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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into this 20th day of
September, 2000, by and between Xxxxxx Xxxxxxx (the "Executive") and APACHE
MEDICAL SYSTEMS, INC. (the "Company").
WHEREAS, the Company wishes to retain the services of the Executive, and
WHEREAS, Executive desires to be employed by the Company,
NOW, THEREFORE, in consideration of the promises and mutual agreements
made herein, and intending to be legally bound hereby, the Company and Executive
agree as follows:
1. Employment Term. Subject to Sections 6 and 7, the term of this
Agreement and Executive's employment hereunder shall be from September 20, 2000
through September 20, 2002. Should the Parties wish to extend this Agreement and
Executive's employment beyond September 20, 2002, the Parties shall enter into a
renewal agreement delineating the terms and conditions of Executive's employment
no later than July 19, 2002. This agreement supercedes and voids all other
existing agreements between the Company and the Executive.
2. Employment Duties. Executive will serve as Chief Operating Officer
of the Company subject to the direction of the Chief Executive Officer and the
Board of Directors. Executive agrees to perform and discharge the duties
assigned to her to the Company's reasonable satisfaction. In performing such
duties, Executive agrees to comply fully with all of the Company's policies and
standards and to follow the lawful instructions and directives of the Chief
Executive Officer and Board of Directors. Executive agrees to devote her full
professional time, skills and best efforts to the business of the Company and
will not, during the term of this Agreement, engage (whether or not during
normal business hours) in any other business or professional activity, whether
or not such activity is pursued for gain, profit or other pecuniary advantage,
without the prior written authorization of the Chief Executive Officer or the
Board of Directors.
3. Compensation.
(a). Base Annual Salary. For all services rendered by Executive
under this Agreement, the Company will pay Executive an annual base salary of
$150,000, commencing September 20, 2000 in equal semi-monthly installments,
which shall be subject to review annually by the Compensation Committee of the
Board of Directors. Effective September 20, 2001 the base annual salary will be
increased by not less than 6%. The Company shall withhold federal and state
income and employment taxes from the salary amounts it disburses to Executive
under this Section.
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(b). Performance Bonus. Executive may be eligible to receive an
annual performance bonus equal in amount to no less than 25% and no more than
50% of Executive's then-current base salary based on the Company's achievement
of certain revenue and operating profit targets, such targets to be recommended
by the Company's senior staff, subject to final approval by the Company's Board
of Directors.
4. Benefits.
(a). Executive will be entitled during the term of this Agreement
to four (4) weeks paid vacation and sick leave benefits as provided by the
Company's standard policies. Additionally, Executive shall be entitled during
the term of this Agreement to other benefits as may be provided from time to
time by the Company to its employees if and when she meets the eligibility
requirements for such benefits. The Company reserves the right to change or
discontinue any employee benefit plans or programs now being offered to its
employees and their dependents.
(b). The Company shall reimburse Executive for all reasonable
expenses incurred in connection with the performance of her duties under this
Agreement pursuant to the Company's standard business expense reimbursement
policies.
5. Stock Options. Upon Executive's execution of this Agreement,
Executive will receive an option to purchase from the Company 20,000 shares of
the Company's common stock and an option to purchase a minimum of 20,000 shares
of the Company's common stock annually thereafter for the period of this
Agreement. Such option, together with any options previously granted to
Executive by the Company, shall be referenced herein as the "Incentive Stock
Options" in accordance with the provisions and requirements of the Incentive
Stock Option Agreement attached as Exhibit 1 to this Agreement (the "Incentive
Stock Option Agreement") and the APACHE Medical Systems, Inc. Employee Stock
Option Plan (the "Stock Option Plan").
6. Termination.
(a). By the Company For Cause. The Company may terminate this
Agreement and Executive's employment for cause at any time without notice. For
purposes of this Agreement, "cause" shall mean the Executive's (i) commission of
an action against or in derogation of the interests of the Company which
constitutes an act of fraud, dishonesty, or moral turpitude, or which, if proven
in a court of law, would constitute a violation of a criminal code or similar
law; (ii) by reason of mental or physical incapacity or disability, becoming
unable to perform the essential functions of her position for a period of ninety
(90) days; (iii) material breach of any material duty or obligation imposed upon
the Executive by the Company; or (iv) divulging the Company's confidential
information. If the Executive's employment is terminated pursuant to this
Section 6(a), the Company's obligations under this Agreement shall cease, and,
except as required by applicable
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law, Executive shall forfeit all rights to receive any other compensation or
benefits under this Agreement, except that she shall be entitled to her base
salary for services rendered through the date of termination and accrued but
unpaid vacation benefits through the effective date of termination.
Additionally, Executive shall be entitled to any shares resulting from the
exercise of vested Incentive Stock Options, provided that such options have been
exercised either prior to or at the time the Company notifies her of her
termination. Termination of the Executive pursuant to this Section 6(a) shall
not relieve her of her obligations under Sections 8, 9, and 10.
(b). By the Company Without Cause. The Company may terminate this
Agreement and Executive's employment without cause by providing Executive thirty
(30) days written notice, provided that in the event of such termination,
Executive shall be entitled to all vested Incentive Stock Options and
continuation of her salary and Company-paid health benefits for nine (9) months
after the effective date of her termination. The Company will also continue
Executive's life insurance and disability benefits at the Company's expense
during this nine (9) month period to the extent that the terms of its group
insurance policies and/or plans extend coverage to non-employees. Additionally,
any Incentive Stock Options that would have vested in the three (3) months after
the effective date of Executive's termination will be accelerated to, and vest
on, the effective termination date. Executive's vested Incentive Stock Options
may be exercised within three (3) months after the effective date of her
termination.
(c) Material Change in Responsibilities. Should the Company
materially change Executive's responsibilities, Executive may provide the
Company thirty (30) days written notice of her objection to such change. The
Company shall be afforded sixty (60) days from receipt of such notice to respond
to and cure Executive's objection(s). Should the Company fail to restore
Executive's responsibilities in full during this sixty (60) day period,
Executive shall be entitled to resign and such resignation for purposes of
salary and benefit continuation and vesting, shall be treated as a termination
without cause as defined in Section 6(b). For purposes of this Section, a
"material change in responsibility" shall mean a material change in her duties
or authority.
(d) Selection of Chief Executive Officer. In the event that the
Board of Directors selects a new Chief Executive Officer, other than Executive
or Xxxxxxx X. Xxxxx, MD, during the term of this Agreement, Executive shall
notify the Board in writing of any objections she may have to the newly elected
Chief Executive Officer within sixty (60) days of his or her selection. The
Board shall thereafter be afforded forty-five (45) days to resolve and redress
Executive's concerns. Should the Board fail to redress Executive's objections to
her satisfaction, Executive may resign her employment and receive the salary and
continuation of her benefits as provided in Section 6(b).
7. Termination Due to Change in Control.
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(a). Defined. For purposes of this Agreement, a "change in
control" is: (1) the purchase or other acquisition by any person, entity or
group of persons, within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934 or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under such Act) of
thirty percent (30%) or more of either the outstanding shares of common stock or
the combined voting power of the Company's then outstanding voting securities
entitled to vote generally; (2) the approval by the stockholders of the Company
of a reorganization, merger or consolidation, in each case, with respect to
which persons who were stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than thirty percent (30%) of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated Company's then outstanding securities; (3) a liquidation or
dissolution of the Company; or (4) the sale of all or substantially all of the
Company's assets.
(b). In the event that a change in control results in either an
involuntary termination of Executive through elimination of her position, a
material change in responsibilities or transfer of Executive to a location
outside of a 50-mile radius of the Company's office at 0000 Xxxxxx Xxxxxxxxx in
McLean, Virginia, Executive shall be entitled to all Incentive Stock Options
which have vested or are otherwise due to vest pursuant to Section 10 of the
Executive's Incentive Stock Option Agreement with the Company, and continuation
of her salary and Company-provided health, disability and life insurance
benefits for nine (9) months as provided in Section 6(b).
(c). In the event of Executive's termination pursuant to Section
7(b), Executive may, at her sole option, elect to receive payment of her nine
(9) months salary in the form of a lump sum distribution, less applicable
withholdings, which shall be payable within twenty (20) days of the effective
date of her termination. Executive's election to such a lump sum distribution
shall not diminish Executive's obligations under Sections 8, 9 and 10.
(d). A "change in control" will not affect or diminish Executive's
rights and obligations under any provision of this Agreement, including, without
limitation, Sections 8, 9 and 10.
8. Confidentiality. In the course of performing her duties under this
Agreement, Executive will have access to "Confidential Information." Executive
agrees and acknowledges that this Confidential Information constitutes a
valuable and unique asset of the Company and that its protection is of critical
importance to the Company. To ensure that such Confidential Information is not
disclosed or divulged to third persons, Executive agrees as follows:
(a). that Confidential Information is owned by the Company and is
to be held by Executive in trust and solely for the benefit of the Company;
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(b). that she shall not disclose or otherwise make available such
Information to any person or entity without the prior written authorization of
the Board of Directors of the Company, except as necessary for the performance
of Executive's services under this Agreement;
(c). that she shall not in any way utilize such Confidential
Information for the gain or advantage of Executive or others or to the detriment
of the Company; and
(d). that upon termination of this Agreement, she shall promptly
return any and all such Confidential Information to the Company and shall
continue to abide by the confidentiality provisions of this Section.
For purposes of this Agreement, "Confidential Information" shall include,
but not be limited to, information that has been created, discovered, developed,
or otherwise become known to APACHE (including, without limitation, information
created, discovered, developed, or made known by Executive during the period of
this Agreement) and/or in which property rights have been assigned or otherwise
conveyed to APACHE, which information has commercial value in the business in
which APACHE is or may become engaged. By way of illustration, but not
limitation, Confidential Information includes trade secrets, processes,
structures, formulas, data and know-how, improvements, inventions, product
concepts, techniques, marketing plans, strategies, forecasts, customer lists and
information about APACHE's employees and/or consultants (including without
limitation, the compensation, job responsibility and job performance of such
employees and/or consultants). Additionally, Confidential Information shall
include certain information that has been made known to APACHE from third
parties, including, but not limited to, patient identifying information,
physician identifying information, information that would link a client's name
to individual data, and any information protected by a confidentiality agreement
or terms and conditions of an agreement regarding confidentiality.
9. Non-Competition. Executive agrees and acknowledges that the
Company has a legitimate and necessary interest in protecting its goodwill,
customer and client relationships, and Confidential Information. Consistent with
that interest, Executive agrees that during the term of this Agreement and for a
period of nine (9) months following the expiration or any earlier termination of
this Agreement and her employment hereunder (collectively, the "Restricted
Period"), she will not, directly or indirectly, own, manage, control,
participate in, consult with, render services to or otherwise engage in any
Competitive Business, or solicit or assist any other person to engage in any
Competitive Business. For purposes of this Agreement, "Competitive Business" is
defined as (a) all entities and/or individuals with whom the Company has a
contract to provide support and services; (b) entities and/or individuals that
the Company has identified on its key prospect list at the time Executive
receives notice of her termination; and/or (c) any other business engaged in
developing, selling, licensing or otherwise merchandising
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computer programs, databases and related manuals, service and/or know-how for
the purpose(s) of: (i) managing the quality and utilization of patient care or
related services using outcomes management applications; or (ii) assessing
and/or predicting mortality and other treatment outcomes of hospital patients or
outpatients; or (iii) otherwise recording patient health factors in connection
with predicting their treatment, managing clinical productivity or containing
costs through the use of outcomes management applications. Ownership of not more
than three percent (3%) or the outstanding securities of any class of any
corporation that are listed on a national securities exchange or traded in the
over-the-counter market shall not constitute ownership of a Competitive Business
within the meaning of this provision. If the Company expands, diminishes and/or
changes the scope of its business during the term of this Agreement, the
definition of Competitive Business hereunder will be considered automatically
revised to incorporate any such expansion, diminution and/or change.
10. Non-Solicitation.
(a). Executive agrees that during the Restricted Period she will
not, directly or indirectly, without the prior written consent of the Company,
solicit or attempt to solicit Competitive Business from any individual or entity
that was a customer of the Company at any time during the six (6) month period
immediately prior to Executive's termination of employment with the Company.
(b). Executive agrees that during the Restricted Period she will
not, directly or indirectly, without the prior written consent of the Company,
solicit or induce any individual who is at that time, or was at any time during
the preceding six (6) months, an employee of the Company to leave the employ of
the Company or hire for any purpose any employee of the Company.
11. Remedies. Executive agrees and acknowledges that the violation of
any of the covenants or agreements contained in Sections 8, 9 and 10 would cause
irreparable injury to the Company, that the remedy at law for such violation or
threatened violation would be inadequate, and that the Company will be entitled,
in addition to any other remedy, to temporary injunctive or other equitable
relief without the necessity of proving actual damages or posting a bond.
12. Notices. Any notice or communication under this Agreement will be
in writing and sent by registered or certified mail addressed to the respective
parties as follows:
If to the Company: Xxxxxxx X. Xxxxx, MD
Chief Executive Officer
APACHE Medical Systems, Inc.
0000 Xxxxxx Xxxxxxxxx
XxXxxx, XX 00000-0000
Notice to Executive: Xx. Xxxxxx Xxxxxxx
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Executive shall notify the Company by certified mail of any change in her
address, and thereafter, the Company shall forward any notices under this
Agreement to Executive at such new address.
13. Entire Agreement. This Agreement embodies the entire agreement of
the Parties relating to Executive's employment and supersedes all prior
agreements, oral or written. No amendment or modification of this Agreement
shall be valid or enforceable unless made in writing and signed by the Parties.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any entity with which or into which the Company may be merged
or which may succeed to its assets or business or any entity to which the
Company may assign its rights and obligations under this Agreement; provided,
however, that the obligations of the Executive are personal and shall not be
assigned or delegated by her.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
16. Severability. Should one or more of the provisions of this Agreement
be held invalid or unenforceable by a court of competent jurisdiction, such
provisions or portions thereof shall be ineffective only to the extent of such
invalidity or unenforceability, and the remaining provisions of this Agreement
or portions thereof shall nevertheless be valid, enforceable and remain in full
force and effect. The Company's rights under this Agreement shall not be
exclusive and shall be in addition to all other rights and remedies available at
law or in equity.
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XXXXXX XXXXXXX APACHE MEDICAL SYSTEMS, INC.
By:
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Date Date
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