AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “Agreement”) is entered into
on March 3, 2008 by I-TRAX, INC., a Delaware corporation with its principal
business offices located at 0 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx,
Xxxxxxxxxxxx 00000 (the “Company”), and XXXXX XXXX, an
individual residing at 000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000 (“Employee”).
Employee is currently employed by CHD
Meridian Healthcare, LLC, a company wholly owned by the Company, pursuant to an
Employment Agreement dated November 13, 2007 (the “Original
Agreement”). The Company and Employee desire to amend and
restated the Original Agreement in the form of this Agreement in connection with
the promotion of Employee to Executive Vice President and Chief Operating
Officer of the Company.
In consideration of the mutual
covenants and premises contained in this Agreement, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged by
the Company and Employee, the Company and Employee agree as
follows:
1. Term of
Employment. Upon the terms set forth in this Agreement, the
Company employs Employee and Employee accepts employment with the Company for
the period of three years (such period, the “Original Term”), unless
sooner terminated in accordance with the provisions of Section 4
below. Upon the expiration of the Original Term, the term of the
Employee’s employment will automatically extend for successive one-year periods
(each such period, an “Additional Term”) unless the
Additional Term is sooner terminated in accordance with the provisions of
Section 4 below or unless on or before 90 days prior to the end of the Original
Term or any Additional Term, Employee or the Company notifies the other in
writing that the Employee’s employment under this Agreement will not be extended
beyond the Original Term or the applicable Additional Term.
2. Title and
Capacity. Employee will serve as Executive Vice President and
Chief Operating Officer of the Company, and will perform the duties commensurate
with such position and such other duties as the Employee’s immediate supervisor,
the Company’s Chief Executive Officer or the Board of Directors (the “Board”) may assign to the
Employee. Employee will devote attention and energies on a full-time
basis to the above duties, and Employee will not, during the term of this
Agreement, actively engage in any other for profit business activity, except
Employee may: (a) assist executive recruiting agencies with
identifying candidates; and (b) serve as a director of up to three entities
other than the Company or its Affiliates.
3. Compensation and
Benefits.
3.1 Salary. During
the Original Term and any Additional Term, the Company will pay Employee an
annual base salary of $240,000 and such discretionary bonuses, if any, as the
Compensation Committee of the Board (the “Compensation Committee”) in
its sole discretion may determine in accordance with an annual bonus plan
adopted by the Compensation Committee. Employee may be eligible for
annual increases in base salary.
3.2 Payment in
Installments. The Company will pay Employee’s annual base
salary in periodic installments in accordance with the Company’s general payroll
practices, after withholding for all Federal, state and local taxes and other
required deductions. The Company will pay the bonus at such time as
the Compensation Committee determines in its sole discretion.
3.3 Benefits. Provided
Employee meets and continues to meet the full-time and any and all other
eligibility requirements set forth in the Company’s Employee Manual and benefits
plans sponsored by the Company, the Company will make available to Employee the
standard full-time employee benefits and benefit plans, subject to employee cost
sharing provisions and other provisions of such benefits and benefit
plans. Notwithstanding the preceding, the Company may change, modify,
amend, eliminate, or terminate any benefit or benefit plan or change the
employee cost sharing provisions of any such benefit or benefit plan, and if the
Company does so, thereafter Employee will be entitled only to then available
standard full-time employee benefits and benefit plans.
3.4 Paid Time
Off. Employee is entitled to 25 paid time off days per year to
be accrued in accordance with the Company’s Executive PTO policy, as amended
from time to time, and taken at such times as may be approved by the Employee’s
immediate supervisor or the Chief Executive Officer of the Company.
3.5 Expenses. The
Company will reimburse Employee for all reasonable travel, entertainment and
other expenses incurred or paid by Employee in connection with, or related to,
the performance of his duties under this Agreement in accordance with the Travel
and Expense Policy published by the Company’s Finance Department, as amended
from time to time.
4. Employment
Termination. The employment of Employee by the Company under
this Agreement will terminate upon the occurrence of any of the
following:
4.1 Expiration of
Term. At the election of Employee or the Company upon the
expiration of the Original Term if Employee or the Company notified the other
pursuant to Section 1 above that Employee’s employment under this Agreement will
not be extended for an Additional Term.
4.2 Cause. At
the election of the Company, for “cause” as defined below, immediately upon
written notice by the Company to Employee. “Cause” for termination is
deemed to exist by reason of (a) any action by Employee resulting in the
conviction of Employee of, or the entry of a plea of guilty or nolo contendere
by Employee to, any crime involving moral turpitude, any felony, or any
misdemeanor involving misconduct or fraud in business activities, (b) any breach
of a fiduciary duty involving personal profit, (c) Employee’s willful failure to
perform his duties under this Agreement, (d) Employee’s willful misconduct,
recklessness or gross negligence in the performance of his duties under this
Agreement, (e) any action by Employee that violates Section 6 below, or
(f) repeated refusal or failure by Employee to comply with the reasonable
directives of the Employee’s immediate supervisor or the Chief Executive Officer
of the Company; provided, however, that the
Company may terminate Employee’s employment under Sections 4.2(c), (e) or (f)
above only after Employee fails (x) to commence and continue to correct or cure
each specific instance comprising cause within 10 days of receipt by Employee of
written notice of the Employee’s immediate supervisor or the Chief Executive
Officer of the Company identifying each instance constituting cause or (y) to
correct or cure each identified instance within 45 days of receipt of such
notice.
4.3 Without
Cause. At the election of the Company, at any time, upon 30
days written notice for any reason whatsoever other than for cause.
4.4 Death or
Disability. Upon Employee’s death or 30 days after Employee’s
disability. “Disability” means the
inability of Employee, due to a physical or mental disability, to perform the
duties contemplated under this Agreement for a period of three consecutive
months or for a cumulative period of four months within any six consecutive
months. A physician satisfactory to Employee and the Company will
determine if Employee is disabled. If Employee and the Company cannot
agree on a physician within 30 days of either party’s written notice to the
other, Employee and the Company will each select a physician, who will together
select a third physician. The determination of the physician(s) as to
disability will be binding on all parties.
4.5 Termination by
Employee. At the election of Employee: (a) at any time if his
health should become impaired to an extent that makes the continued performance
of his duties under this Agreement hazardous to his physical or mental health or
his life, as certified by a physician designated by Employee and reasonably
acceptable to the Company; (b) for “good reason” upon delivery of written
notice of such “good reason” to the Company; or (c) upon 90 days written
notice of termination. “Good reason” means: (1) the
failure by the Company to continue Employee in the position of Executive Vice
President and Chief Operating Officer (or such other position as the Company and
Employee may agree upon); (2) failure by the Company to pay and provide to
Employee the compensation provided in Section 3.1 above, which failure is not
cured within 30 days after written notice of such failure is delivered by
Employee to the Company; (3) requiring Employee to be permanently based anywhere
other than within 25 miles of Company’s offices in Chadds Ford, Pennsylvania
(excluding business related travel as required by the Company’s business); or
(4) any other material breach of this Agreement by the Company, which breach is
not cured within 30 days after written notice of such breach is delivered by
Employee to the Company.
5. Effect of
Termination.
5.1 Expiration of
Term. If Employee or the Company elects not to renew
Employee’s employment for any Additional Term under Section 4.1, the Company
will pay to Employee the base salary and benefits otherwise payable to Employee
under Sections 3.1, 3.2 and 3.3, pro rata through the
last day of Employee’s actual employment by the Company.
5.2 Termination for
Cause. If the Company terminates Employee’s employment for
cause under Section 4.2, the Company will pay to Employee the base salary and
benefits otherwise payable to Employee under Sections 3.1, 3.2 and 3.3,
pro rata through
the last day of Employee’s actual employment by the Company.
5.3 Termination Without
Cause.
(a) If
the Company terminates Employee’s employment under Section 4.3 for any reason
other than for cause at any time during the Original Term or any Additional
Term, the Company will pay to Employee (1) severance equal to 12 months of base
salary then applicable under Section 3.1 in the manner provided under Section
3.2, (2) the bonus accrued for the benefit of Employee in accordance with the
Company’s plan for the fiscal year in which Employee’s employment terminates,
pro rated for any partial year, and (3) for the period that Employee is
receiving severance, an additional amount equal to the amount Employee is
required to pay to maintain full-time health benefits under COBRA.
(b) Employee
acknowledges that if Employee’s employment is terminated pursuant to Section
4.3, the payment in full of severance under this Section 5.3 represents the
total obligation of the Company to Employee under this Agreement.
5.4 Termination for Death or
Disability. If Employee’s employment is terminated by death or
because of disability under Section 4.4, the Company will pay to the estate of
Employee or to Employee, as applicable, the base salary and benefits otherwise
payable to Employee under Sections 3.1, 3.2 and 3.4 above through the end of the
month in which termination of Employee’s employment because of death or
disability occurs.
5.5 Termination by
Employee.
(a) If
Employee terminates Employee’s employment under Section 4.5(a) for reasons of
health, the Company will pay to Employee the base salary and benefits otherwise
payable to Employee under Sections 3.1, 3.2 and 3.4 through the date of
termination.
(b) If
Employee terminates Employee’s employment under Section 4.5(b) for good reason
at any time during the Original Term or any Additional Term, the Company will
pay to Employee (1) severance equal to 12 months of base salary then applicable
under Section 3.1 in the manner provided under Section 3.2, (2) the bonus
accrued for the benefit of Employee in accordance with the Company’s plan for
the fiscal year in which Employee’s employment terminates, pro rated for any
partial year, and (3) for the period that Employee is receiving severance, an
additional amount equal to the amount Employee is required to pay to maintain
full-time health benefits under COBRA.
(c) Employee
acknowledges that if Employee’s employment is terminated pursuant to Section
4.5(b), then the payment in full of severance under Section 5.5(b) represents
the total obligation of the Company to Employee under this
Agreement.
(d) If
Employee terminates Employee’s employment under Section 4.5(c), the Company will
pay to Employee the base salary and benefits otherwise payable to him under
Sections 3.1, 3.2 and 3.4 pro
rata through the last day of his actual employment by the Company, and
the Company may assert a claim for damages caused to the Company by reason of
Employee’s termination in breach of Employee’s obligations under this
Agreement.
6. Non-Competition,
Non-Solicitation and Confidentiality.
6.1 Non-Competition. During
the Original Term and, if automatically renewed, the applicable Additional Term
(regardless whether the Original Term or the applicable Additional Term are
terminated under Section 4 above prior to its scheduled expiration under
Section 1) and for a period of one year after the expiration of the Original
Term and, if automatically renewed, the applicable Additional Term, Employee
will not, including through an Affiliate (as defined in Rule 12b-2 promulgated
pursuant to the Securities Exchange Act of 1934, as amended), directly or
indirectly, engage in the business in which the Company or its Affiliates are
actually engaged in as of the date of termination or expiration, as applicable
(the “Business”). Each
of the following activities, without limitation, are deemed to constitute
engaged in the Business: engaging in, working with, maintaining an
interest in (other than interests of less than 1% in companies with securities
traded either on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market, the Nasdaq SmallCap Market or traded over-the-counter
and quoted on the Bulletin Board), advising for a fee or other consideration,
managing, operating, lending money to (other than loans by commercial banks),
guaranteeing the debts or obligations of, or permitting one’s name or any part
thereof to be used in connection with an enterprise or endeavor, either
individually, in partnership or in conjunction with any individual, partnership,
corporation, limited liability company, association, joint stock company, trust,
joint venture or any other form of business organization, unincorporated
organization or governmental entity (or any department, agency or subdivision
thereof) (each, a “Person”), whether as
principal, director, agent, shareholder, partner, employee, consultant,
independent contractor or in any other manner whatsoever, any Person in the
Business.
6.2 Non-solicitation. During
the Original Term and, if automatically renewed, the applicable Additional Term
(regardless whether the Original Term or the applicable Additional Term are
terminated under Section 4 above prior to its scheduled expiration under
Section 1) and for a period of one year after the expiration of the Original
Term and, if automatically renewed, the applicable Additional Term, Employee
will not, directly or indirectly, and no Person (including an Affiliate) over
which Employee exercises control (whether as an officer, director, individual
proprietor, holder of debt or equity securities, consultant, partner, member or
otherwise) (a) solicit or engage or employ or otherwise enter into any
agreement or understanding, written or oral, relating to the services of any
Person who is known or should be known by Employee to be then employed or to
have been employed within the preceding six months by the Company or its
Affiliates, (b) take any action which could be reasonably expected to lead any
Person to cease to deal with the Company or its Affiliates or (c) solicit
the business of, enter into any written or oral agreement with or otherwise deal
with any supplier of goods, products, materials or services in competition with
the Company or its Affiliates or solicit the business of customers of the
Company or its Affiliates who were such at any time during the two-year period
preceding Employee’s last date of employment, except on behalf of businesses in
which such party would then be permitted to engage directly without violating
this Section 6.
6.3 Confidentiality. During
the Original Term and, if automatically renewed, the applicable Additional Term
(regardless whether the Original Term or the applicable Additional Term are
terminated under Section 4 above prior to its scheduled expiration under
Section 1) and for a period of five years after the expiration of the Original
Term and, if automatically renewed, the applicable Additional Term, Employee
will treat as trade secrets all Confidential Information (as defined below)
known or acquired by Employee in the course of any affiliation Employee has with
the Company or its Affiliates and will not disclose any Confidential Information
to any Person not affiliated with the Company except as authorized in writing by
the Company. “Confidential Information”
means any information relating to the relationship of the Company or its
Affiliates to their customers (including, without limitation, the identity of
any customer), the research, design, development, manufacturing, marketing,
pricing, costs, capabilities, capacities and business plans related to the
Business, the financing arrangements of the Company, or the financial condition
or prospects of the Company; inventions, products, processes, methods,
techniques, formulas, compositions, compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer programs,
software, including source code, object code, operating systems, bridgeware,
firmware, middleware or utilities and customer and supplier lists and any other
confidential information relating to the assets, condition or business of the
Company or its Affiliates. Notwithstanding the foregoing, Employee
will have no obligation with respect to (a) information disclosed to
Employee by a Person who does not owe a duty of confidentiality to the Company
or its Affiliates; or (b) information which is in the public domain and is
readily available; or (c) information where disclosure is required by law
or is necessary in connection with a claim, dispute or litigation to which
Employee is or becomes a party and the Company is given ten business days prior
written notice of the intent to make disclosure.
6.4 Injunctive
Relief. The restrictions contained in this Section 6 are
necessary for the protection of the business and goodwill of the Company and its
Affiliates and are considered by Employee to be reasonable for such
purpose. Employee acknowledges that a breach or threatened breach by
Employee of the covenants contained in this Section 6 would cause the Company
irreparable harm and that the extent of damages to the Company would be
impossible to ascertain and that there is and will be available to the Company
no adequate monetary damages or other remedy at law to compensate it in the
event of any such breach. Consequently, in the event of a breach of
any such covenant, in addition to any other relief to which the Company is or
may be entitled, the Company may seek, as a matter of course, an injunction or
other equitable relief, including the remedy of specific performance, to enforce
any or all of such covenants by Employee, his employer, employees, partners,
agents or any of them.
6.5 Modification of
Covenants. In the event an arbitrator, court or governmental
agency or authority determines that any provision of Section 6 is invalid by
reason of the length of any period of time or the size of any area during or in
which such provision is effective, such period of time or area will be
considered to be reduced to the extent required to cure such
invalidity.
6.6 Extension of
Covenant. In the event Employee violates the restrictions
contained in Section 6.1, the duration of such restriction will extend for a
period of time equal to the period of time during which such violation
continued.
6.7 Counter-claims. Any
claim or cause of action by Employee against the Company, whether predicated on
this Agreement or otherwise, will not constitute a defense to the enforcement by
the Company of the restrictions contained in this Section 6, but will be
litigated separately including, without limitation, any claim by Employee that
Employee has not been terminated for cause pursuant to Section 4.2 above, unless
the claim and defense arise out of the same event and joinder would be
required.
7. Inventions, Patents and
Intellectual Property.
7.1 Employee
agrees that all inventions, discoveries, computer programs, data, software,
technology, designs, innovations and improvements (whether or not patentable and
whether or not copyrightable) (individually, an “Invention,” and collectively,
“Inventions”) related to
the Business which are made, conceived, reduced to practice, created, written,
designed or developed by Employee, solely or jointly with others and whether
during normal business hours or otherwise, during the Original Term, the
Additional Term or thereafter if resulting or directly derived from Confidential
Information, will be the sole property of the Company. Employee
hereby assigns to the Company all Inventions and any and all related patents,
copyrights, trademarks, trade names, and other industrial and intellectual
property rights and applications therefor, in the United States and elsewhere
and appoints any officer of the Company as Employee’s duly authorized attorney
to execute, file, prosecute and protect the same before any government agency,
court or authority. Upon the request of the Company and at the
Company’s expense, Employee will execute such further assignments, documents and
other instruments as may be necessary or desirable to fully and completely
assign all Inventions to the Company and to assist the Company in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Invention.
7.2 Employee
will promptly disclose to the Company all Inventions and will maintain adequate
and current written records (in the form of notes, sketches, drawings and as may
be specified by the Company) to document the conception and/or first actual
reduction to practice of any Invention. Such written records will be
available to and remain the sole property of the Company at all
times.
8. Return of Confidential
Information. All files, letters, memoranda, reports, records,
data, sketches, drawings, laboratory notebooks, program listings or other
written, photographic or other tangible material, in each event, containing
Confidential Information, whether created by Employee or others, which come into
Employee’s custody or possession, are and will be the exclusive property of the
Company to be used by Employee only in the performance of his duties for the
Company.
9. Cooperation. At
any time during the term of this Agreement or thereafter, Employee will
reasonably cooperate with the Company in any litigation or administrative
proceedings involving any matters with which Employee was involved during
Employee’s employment by the Company. The Company will reimburse
Employee for reasonable expenses, if any, incurred in providing such
assistance.
10. Notices. All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing, and may be given by a party hereto by (a)
personal service (effective upon delivery), (b) mailed by registered or
certified mail, return receipt requested, postage prepaid (effective five
business days after dispatch), (c) reputable overnight delivery service,
charges prepaid (effective the next business day) or (d) telecopy or other
means of electronic transmission (effective upon receipt of the telecopy or
other electronic transmission in complete, readable form), if confirmed promptly
by any of the methods specified in clauses subparagraphs (a)-(c) of this Section
10, to the other party at the address shown above, or at such other address or
addresses as either party shall designate to the other in accordance with this
Section 10.
11. Non-Disparagement. During
the term of Employee’s employment hereunder and for five years thereafter,
neither Employee nor the Company will disparage, deprecate, or make any negative
comment with respect to the other party or its Affiliates or their respective
businesses, operations, or properties.
12. Pronouns. Whenever
the context may require, any pronouns used in this Agreement include the
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns include the plural and vice versa.
13. Entire
Agreement. This Agreement, and such other agreements,
schedules and exhibits as are referenced in this Agreement, constitute the
entire agreement between the parties and supersede all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement, including the Original Agreement.
14. Amendment. This
Agreement may be amended or modified only by a written instrument executed by
both the Company and Employee.
15. Governing Law; Consent to
Jurisdiction.
15.1 This
Agreement shall be construed, interpreted and enforced in accordance with the
laws of the Commonwealth of Pennsylvania, notwithstanding any contrary
application of conflicts of laws principles.
15.2 Each
of the Company and Employee consents to the jurisdiction of all Federal and
state courts located in the Commonwealth of Pennsylvania which have jurisdiction
over any disputes arising under this Agreement. Service of process in
any action or proceeding commenced in a court located in the Commonwealth of
Pennsylvania may be made by written notice as provided in Section
10.
16. Successors and
Assigns. This Agreement will be binding upon and inure to the
benefit of both parties and their respective successors and assigns, including
any corporation with which or into which the Company may be merged or which may
succeed to its assets or business; provided, however, that the
obligations of Employee are personal and may not be assigned by
him.
17. Miscellaneous.
17.1 No
delay or omission by the Company in exercising any right under this Agreement
operates as a waiver of that or any other right. A waiver or consent
given by the Company on any one occasion is effective only in that instance and
will not be construed as a bar or waiver or any right on any other
occasion.
17.2
The captions of the sections of this Agreement are for convenience of reference
only and in no way define, limit or affect the scope or substance of any section
of this Agreement.
17.3 In
case any provision of this Agreement is invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions will in no way be affected or impaired.
IN WITNESS WHEREOF, the parties hereto,
intending to be legally bound, have executed this Agreement as of the day and
year set forth above.
COMPANY:
I-TRAX, INC.
By: /s/ X. Xxxxx Xxxxxx
Name:
X. Xxxxx Xxxxxx
Title:
Chief Executive Officer
Attest: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Secretary
EMPLOYEE: /s/ Xxxxx Xxxx
Witness:
/s/ Xxxx
Xxxxxxxxx
