EMPLOYMENT AGREEMENT
THIS AGREEMENT, by and between Xxxxxx X. Xxxxxxx (the "Executive") and
Access Health, Inc., a Delaware corporation (the "Company"), shall become
effective as of the effective date (the "Effective Date") of the merger
contemplated by that certain Agreement and Plan of Reorganization dated as of
September 3, 1996, among the Company, Informed Access Systems, Inc. ("Informed
Access") and Access Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Company (the "Merger Agreement").
In consideration of the mutual covenants herein contained, and in
consideration of the employment of Executive by the Company, the parties agree
as follows:
1. Duties and Scope of Employment.
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(a) Position. The Company agrees to employ the Executive under the
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terms of this Agreement in the position of Executive Vice President, Access
Health, Inc. and President, Informed Access. Executive will report to Xxxxxx X.
Xxxxxxx.
(b) Obligations. During the term of this Agreement, the Executive
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shall devote Executive's full business efforts and time to the Company. The
foregoing, however, shall not preclude the Executive from engaging in
appropriate civic, charitable or religious activities or from devoting a
reasonable amount of time to private investments or from serving on the boards
of directors of other entities, as long as such activities and service do not
interfere or conflict with Executive's responsibilities to the Company and do
not represent business conflicts with the Company's business.
(c) Company Policies. Executive shall comply with all of the
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Company's rules and regulations applicable to the executives of the Company and
with all of the Company's policies applicable to other similarly situated
executives established by the Company's management and Board of Directors.
2. Base Compensation. Beginning on the Effective Date, the Executive
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shall be paid a base salary (the "Base Compensation") of $100,000 annually,
payable bi-weekly. Such Base Compensation will be adjusted to $180,000 ("Target
Base Compensation") upon the earlier to occur of (i) such time as the Company
has achieved earnings per share of at least $0.22 for the quarter ended March
31, 1997, $0.26 for the quarter ended June 30, 1997, $0.33 for the quarter ended
September 30, 1997, or (ii) the first anniversary of the date hereof.
Thereafter, the Base Compensation shall be subject to review annually for
increases by the Board of Directors in its sole discretion in connection with
the annual review of salary and benefits for the Company's management.
3. Definitions. As used herein, the following definitions shall apply:
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(a) "Cause" shall mean the termination of employment of Executive
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shall have taken place as a result of (i) Executive's continued failure to
substantially perform Executive's principal duties and responsibilities (other
than as a result of Disability or death) after thirty (30) days written notice
from the Company specifying the nature of Executive's failure and demanding that
such failure be remedied; (ii) Executive's material and continuing breach of his
obligations to the Company set forth in this
Agreement, the Confidentiality Agreement (as defined herein), the Non-
Competition Agreement (as defined herein) or any written policy of the Company
applicable to all officers after thirty (30) days written notice from the
Company specifying the nature of Executive's breach and demanding that such
breach be remedied (unless such breach by its nature cannot be cured, in which
case notice and an opportunity to cure shall not be required); (iii) Executive's
being convicted of a felony; or (iv) act or acts of dishonesty undertaken by
Executive and intended to result in substantial gain or personal enrichment of
Executive at the expense of the Company.
(b) "Constructive Termination" shall mean a termination of employment
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due to any of the following unless agreed to by Executive or unless such change
is an Approved Change: (i) a reduction in Executive's salary or benefits (except
in connection with a decrease to be applied equally to all officers of the
Company because the Company's performance has decreased, and excluding the
substitution of substantially equivalent compensation and benefits); (ii) a
material diminution of Executive's responsibilities (e.g., title, primary
duties, resources); (iii) relocation of Executive to a location more than 50
miles from his current location (except to Boulder, Colorado); (iv) failure of a
successor to assume and perform under this Agreement; and (v) failure of the
Company to operate the Informed Access division substantially in accordance with
the charter set forth in Exhibit I (The Informed Access Charter) to the Merger
Agreement. "Approved Change" means a change approved by Xxx Xxxxxxx in his
capacity as President of the Informed Access operating entity, or his successor
by reason of his death, disability, termination for cause or resignation. If
any of the events set forth above shall occur, Executive shall give prompt
written notice to the Company and shall have sixty (60) days from the notice or
ninety (90) days from the event, whichever is earlier, to exercise his rights to
terminate for Constructive Termination or such right shall be deemed waived as
to such event, but not as to any future event.
(c) "Disability" shall mean that the Executive, at the time notice is
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given, has been unable to perform Executive's duties under this Agreement for a
period of not less than ninety (90) days consecutively as the result of
Executive's incapacity due to physical or mental illness. In the event that the
Executive resumes the performance of substantially all of Executive's duties
hereunder within 90 days of the commencement of leave before the termination of
employment under Section 6(b)(iii) becomes effective, the notice of termination
shall automatically be deemed to have been revoked. This paragraph will be
enforced in compliance with the Americans with Disabilities Act.
4. Executive Benefits.
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(a) General. During the term of Executive's employment under this
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Agreement, the Executive shall be entitled to participate in the Company
Management Incentive Plan up to 50% of Base Compensation. Awards under such
Plan will range from 0% to 50% based upon Executive's performance. In addition,
at the time of Executive's first bonus payment following the increase in Base
Compensation pursuant to Section 2, Executive will be eligible to receive an
additional bonus equal to the difference between Target Base Compensation and
Base Compensation during the period from the inception of this Agreement through
the Effective Date of the increase in Base Compensation. Performance goals will
be established within 3 months of the date hereof and annually thereafter
consistent with Company's and Informed Access's business strategy. Executive
also shall be entitled to participate in pension plans, savings or profit-
sharing plans, deferred compensation plans, supplemental retirement or excess-
benefit
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plans, stock option, incentive or other bonus plans, life, disability, health,
accident and other insurance programs, paid time off (which will accrue for the
Executive at a rate of 6.16 hours a pay period beginning on the effective date
of this Agreement, or not less than 20 days a year) and similar plans or
programs made available to executives of the Company, subject in each case to
the generally applicable terms and conditions of the plan or program and the
decision of the Board of Directors or administrators of such plan.
(b) Employment Credit. Executive will be fully credited for his
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years of employment by Informed Access as though he had been employed by the
Company for all such time for purposes of determining his eligibility for and
the extent of benefits available from the Company.
(c) Stock Awards. The Executive has been granted stock options (the
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"Options") to purchase 60,000 shares of Common Stock of the Company, effective
as of the Effective Date pursuant to Stock Option Agreements in the in the forms
attached hereto as EXHIBIT A-1 and A-2, which shall be incentive stock options
to the maximum extent permitted by the Internal Revenue Code and subject to
approval of the Incentive Plan Amendment as defined in the Merger Agreement.
The Options shall be exercisable cumulatively to the extent of one-fifth of the
total number of shares subject to the Options one year from the Effective Date
set forth above and an additional one-fifth of the total shares subject to the
Options at the end of each one-year period thereafter. Executive will be
eligible to receive additional grants in the sole discretion of the Company's
Board of Directors on the same basis as Company's other executives.
Notwithstanding the foregoing, in the event of (i) a reorganization or
merger of the Company with or into any other corporation which will result in
the Company's stockholders immediately prior to such transaction not holding, as
a result of such transaction, at least 50% of the voting power of the surviving
or continuing entity; (ii) a sale of all or substantially all of the assets of
the corporation which will result in the Company's stockholders immediately
prior to such sale not holding, as a result of such sale, at least 50% of the
voting power of the purchasing entity; (iii) a transaction or series of related
transactions which result in more than 50% of the voting power of the Company
being controlled by a single holder; or (iv) a change in the majority of the
Company's Board of Directors not approved by at least two-thirds of Company's
directors in office prior to such change (any of the foregoing, a "Change of
Control"), the Options shall be come fully exercisable.
5. Business Expenses and Travel. During the term of Executive's
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employment under this Agreement, Executive shall be authorized to incur
necessary and reasonable travel, entertainment and other business expenses in
connection with his duties hereunder. The Company shall reimburse Executive for
such expenses upon presentation of an itemized account and appropriate
supporting documentation, all in accordance with the Company's generally
applicable policies.
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6. Term of Employment.
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(a) Basic Rule. The Company agrees to continue Executive's
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employment, and Executive agrees to remain in the employ of the Company, during
the term of this Agreement pursuant to the provisions of this Agreement.
(b) Termination by the Company. The Company may terminate
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Executive's employment, with Thirty (30) days advance notice in writing, only
for Cause or as a result of Death or Disability.
(i) Termination Without Cause. If the Company terminates
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Executive's employment during the term of this Agreement for any reason
whatsoever, including a Constructive Termination, and other than voluntary
termination of employment or Termination for Cause, the provisions of Section
7(a) shall apply.
(ii) Termination for Cause. If the Company terminates
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Executive's employment for Cause during the term of this Agreement, the
provisions of Section 7(b) shall apply.
(iii) Termination on Death or Disability. If the Company
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terminates Executive's employment as a result of Executive's Death or
Disability, the provisions of Section 7(c) shall apply.
(c) Voluntary Termination by the Executive. The Executive may
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terminate Executive's employment voluntarily by giving the Company thirty (30)
days advance notice in writing, at which time the provisions of Section 7(b)
shall apply. However, if the Executive terminates Executive's employment
pursuant to this Section 6(c) as a result of the occurrence of any of the events
set forth in the definition of a Constructive Termination, the provisions of
Section 7(a) shall apply, provided the Executive has provided written notice to
the Company reasonably specifying the reasons why one of such events in the
definition of a Constructive Termination has occurred and the Company has not
cured such event within twenty (20) days after receipt of such notice.
(d) Waiver of Notice. Any waiver of notice shall be valid only if it
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is made in writing and expressly refers to the applicable notice requirement in
this Section 6.
7. Payments Upon Termination of Employment.
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(a) Payments Upon Termination Pursuant to Section 6(b)(i) and
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Constructive Termination. If, during the term of this Agreement, the
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Executive's employment is terminated by the Company pursuant to Section 6(b)(i)
or voluntarily by the Executive under Section 6(c) as a result of a Constructive
Termination, the Executive shall be entitled to receive the following:
(i) Severance Payment. The Company shall continue to pay to the
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Executive his Base Compensation for the remainder of the Term (the "Severance
Period") plus any amounts to which Executive is entitled under then current
Company policies; provided, however, that if the termination occurs following a
Change of Control, the Severance Period shall be twenty-four (24) months. Such
Base Compensation amount shall be determined with reference to the Base
Compensation in effect for
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the month in which the date of employment termination occurs; provided, that if
the termination occurs prior to the effectiveness of the increase in Base
Compensation contemplated by Section 2, Target Base Compensation shall be used
to calculate the Severance Payment. Payment of the Severance Payment shall be
terminated if Executive materially breaches the terms of the Non-Competition
Agreement attached as EXHIBIT B hereto (the "Non-Competition Agreement"), and
fails to cure such breach within 30 days of the Company's notice.
(ii) Stock Options. All stock options will become immediately
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vested and remain exercisable for the remainder of the applicable option term.
Executive acknowledges that incentive stock option treatment under Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), will not be
available unless such options are exercised within the time prescribed in the
Code.
(iii) Method of Payment. The Severance Payment shall be made in
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bi-weekly payments during the Severance Period; provided, that if the
termination occurs following a Change of Control the severance payment shall be
paid in a lump sum within three (3) days after such termination.
(iv) Health and Welfare Benefits. The Company shall continue
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to provide health and welfare benefits for the duration of the Severance Period.
Such benefits will be discontinued to the extent that Executive receives similar
benefits in connection with new employment. Executive will also be entitled to
such payments and benefits as may be provided under applicable benefit plans and
programs of the Company.
(v) Payment in Lieu of Contract Damages. The Severance Payment
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shall be in lieu of any further payments to the Executive and any further
accrual of benefits with respect to periods subsequent to the date of the
employment termination.
(vi) No Duty to Mitigate. The Executive shall not be required
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to mitigate the amount of any payment contemplated by this Section 7(a) (whether
by seeking new employment or in any other manner).
(b) Termination By Company for Cause or Voluntary Termination. If
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the Executive's employment is terminated pursuant to Section 6(b)(ii) or
voluntarily (other than a Constructive Termination) pursuant to Section 6(c), no
compensation or payments will be paid or provided to Executive for the periods
following the date when such a termination of employment is effective.
Notwithstanding the preceding sentence, Executive's rights under the benefit
plans and option agreements of the Company shall be determined under the
provisions of those plans and agreements, provided Executive shall have three
(3) months from the date of termination of employment in which to exercise any
non-qualified stock option and three (3) months from the date of termination of
employment to exercise any incentive stock option in each case to the extent
such options are exercisable as of the date of termination.
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(c) Termination on Death or Disability. If Executive's employment is
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terminated because of Executive's death or Disability (as defined in Section
3(c) herein), then no payments shall be owed under this Agreement and Executive
shall receive severance and disability payments as provided in the Company's
standard benefit plans. Executive's stock options shall be exercisable as
provided in such agreements.
8. Proprietary Information. The Executive agrees to comply fully with
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the Company's policies relating to non-disclosure of the Company's trade secrets
and proprietary information and processes, as set out in the Confidentiality
Agreement set out as EXHIBIT C hereto (the "Confidentiality Agreement").
9. Successors.
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(a) Company's Successors. Any successor to the Company (whether
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direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume this Agreement and agree expressly to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform it in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by this Agreement or by
operation of law.
(b) Executive's Successors. This Agreement and all rights of the
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Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Notice. Notices and all other communications contemplated by this
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Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or five days after being mailed by first class mail, return
receipt requested and postage prepaid. In the case of the Executive, mailed
notices shall be addressed to Executive at the home address which Executive most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Chief Executive Officer.
11. Termination of Agreement. This Agreement shall be for a term of
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thirty-six (36) months following the Effective Date (the "Term").
12. Miscellaneous Provisions.
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(a) Waiver. No provision of this Agreement shall be modified, waived
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or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Executive and an officer or a director of the Company
authorized by the Board of Directors. No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party
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shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(b) Whole Agreement. No agreements, representations or
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understandings (whether oral or written and whether express or implied) which
are not expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof. This Agreement
supersedes and replaces any and all previous agreements between the Executive
and Informed Access regarding compensation or terms of employment. The
Executive hereby represents that Informed Access has satisfied in full any
compensation or other employment obligations due Executive under any written or
oral employment agreements by and between the Executive and Informed Access.
This Agreement shall supersede the provisions regarding acceleration of vesting
provided in any stock option agreements.
(c) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California.
(d) Severability. The invalidity or unenforceability of any
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provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(e) Arbitration. Any dispute or controversy arising under or in
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connection with this Agreement shall be settled exclusively by arbitration in
Sacramento County, California, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
(f) No Assignment of Benefits. The rights of any person to payments
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or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
(g) Limitation of Remedies. If the Executive's employment terminates
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for any reason, the Executive shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement.
(h) Employment Taxes. All payments made pursuant to this Agreement
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will be subject to withholding of applicable taxes.
(i) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(j) Representation by Counsel. Executive represents that Executive
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has had the opportunity to seek independent legal counsel in connection with
entering into the Agreement.
(k) Attorney's fees. In any action or arbitration brought under this
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Agreement, the prevailing party shall be entitled to his attorneys' fees and
costs.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officer, as of the day and
year first above written.
ACCESS HEALTH, INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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[EXECUTIVE]
Print Name: Xxxxxx X. Xxxxxxx
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Title: President and Chief Executive
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Officer
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