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EXHIBIT 10.5
MD2PATIENT, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of January 1,
2000, is by and between MD2PATIENT, INC., a Georgia corporation ("Employer"),
and Xxxxx X. Xxxxxx, Xx., an individual resident of the State of Tennessee
("Executive").
SECTION 1. EMPLOYMENT.
Employer employs Executive, and Executive accepts employment upon the
terms and conditions of this Agreement.
SECTION 2. TERM.
The term of this Agreement shall begin on the date first set forth
above and shall terminate on the second anniversary of such date. Unless earlier
terminated in accordance with Section 8 hereof, this Agreement shall be
automatically renewed for additional successive periods of one (1) year each
unless written notice of intention not to renew is given by Executive to
Employer or by Employer to Executive at least one hundred twenty (120) days
before the expiration of the term.
SECTION 3. SERVICES.
Executive shall serve as the Executive Vice President and Chief
Financial Officer of Employer, and shall perform the services and functions
relating to such office or otherwise reasonably incident to such office, subject
to the direction and control of Board of Directors of Employer. Executive shall
exert his best efforts and devote substantially all of his time and attention to
the affairs of the Employer.
SECTION 4. COMPENSATION.
4.1 BASE SALARY. During the first year of this Agreement, Employer
shall pay Executive a base annual salary of $175,000. Executive's base salary
during any extension or renewal of the term of the Agreement shall be as agreed
upon by the parties. During the second year of this Agreement and any extension
or renewal term, the Board of Directors of the Company, or a committee thereof,
may increase Executive's base compensation to a level it deems appropriate in
its sole discretion.
4.2 RESTRICTED STOCK. In addition to the base salary set forth above,
Employer shall grant to Executive 2,000,000 shares of its common stock, par
value $.01 per share, such shares to be subject to certain restrictions set
forth in a restricted stock award agreement to be executed by Executive.
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4.2 ADDITIONAL COMPENSATION. Executive may also be paid a bonus as may
be agreed upon by the parties from time-to-time or as may be granted from
time-to-time by the Board of Directors of Employer, or a committee thereof,
pursuant to an executive bonus or incentive plan.
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4.3 WITHHOLDING. All payments under this Agreement shall be subject to
any and all withholding and other applicable taxes.
SECTION 5. ADDITIONAL BENEFITS.
In addition to his salary, Executive shall receive the benefit of all
standard fringe benefits customarily furnished by Employer to other executives
of equal rank and reimbursement for reasonable expenses incurred on behalf of
Employer as provided in Section 6 below. Employer shall provide health insurance
and disability insurance for Executive.
SECTION 6. EXPENSES.
Executive may incur reasonable expenses for promoting Employer's
business, including expenses for entertainment, travel and similar items.
Employer will reimburse Executive for all such expenses upon Executive's
periodic presentation of an itemized account of such expenditures, accompanied
by receipts, if appropriate.
SECTION 7. VACATION.
Executive shall be entitled to four (4) weeks of paid vacation per
year.
SECTION 8. TERMINATION.
8.1 BY EXECUTIVE. In addition to his right to elect not to renew this
Agreement as provided in Section 2 hereof, Executive may terminate this
Agreement upon thirty (30) days' prior written notice to Employer. In such
event, Executive shall continue to render his services, shall be covered by the
additional benefits in Section 5 above, and shall be paid his regular
compensation up to the date of termination, but no severance allowance shall be
paid to Executive. Upon termination of his employment and upon experiencing a
qualifying event, COBRA coverage shall be made available in compliance with
federal law.
8.2 BY EMPLOYER WITH CAUSE. With cause, Employer may terminate this
Agreement at any time without prior notice. For purposes of this Agreement,
"cause" shall include:
8.2.1 Fraud, misappropriation, embezzlement, or the like by
Executive;
8.2.2 Engaging in competition with Employer, as defined below; or
8.2.3 Disclosing proprietary information of Employer as defined
below, except within the proper scope of Executive's
employment.
8.3 BY EMPLOYER WITHOUT CAUSE. In addition to its right to elect not to
renew this Agreement, as provided herein, Employer may terminate this Agreement
without cause upon 30 days prior written notice to Executive.
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8.4 "ENGAGING IN COMPETITION" DEFINED. For purposes of this Agreement,
the term "engaging in competition with Employer" shall mean serving as a
director, officer, partner, employee, manager, consultant, agent, independent
contractor, advisor, creditor or equity owner (except for ownership of less than
five percent (5%) of the stock of a publicly-traded company) or otherwise
providing any services for or assistance to any business or organization that,
within the State of Tennessee, directly or indirectly engages in competition
with the provision of Internet-based medical content and healthcare services
engaged in by Employer or any subsidiary, division or affiliate thereof as of
the last day of Executive's employment with Employer.
8.5 "DISCLOSING PROPRIETARY INFORMATION OF EMPLOYER" DEFINED. For
purposes of this Agreement, "disclosing proprietary information of Employer"
shall mean disclosing any item of proprietary information or trade secret of
Employer including, but not limited to, customer lists, sales lists, invoices,
confidential selling and profit information, technology, finances, earnings,
volume of business, outlets, methods, systems, practices, plans, and other items
of trade secrets, trade knowledge, and trade know-how with the intent or in a
manner reasonably expected to provide a competitive advantage to another party.
8.6 SEVERANCE PAY. In the event an election not to renew this Agreement
is made by either party pursuant to the provisions of Section 8.1 hereof, or in
the event this Agreement is terminated pursuant to the provisions of Sections
8.2 hereof, Executive's compensation shall cease on the date on which this
Agreement is terminated, and Executive shall be entitled to no severance pay. In
the event this Agreement is terminated pursuant to the provisions of Section 8.3
hereof, as severance pay for such termination, Executive shall continue to
receive his then-current salary and health benefits at Company expense for a
period of one (1) year following such termination.
SECTION 9. RESTRICTIVE COVENANT.
For a period of twelve (12) months following the expiration or
termination of this Agreement for any reason whatever, Executive shall neither
engage in competition with Employer nor disclose proprietary information of
Employer, as those terms are defined in Section 8, hereof, neither shall
Executive solicit or otherwise contact existing subscribers of Employer for
purposes of engaging in competition with Employer. In the event of Executive's
actual or threatened breach of the provisions of this paragraph, Employer shall
be entitled to an injunction restraining Executive therefrom and Executive
hereby consents to such injunction; provided, however, that nothing herein shall
be construed as prohibiting Employer from pursuing any other available remedies
for such breach or threatened breach, including the recovery of damages from
Executive.
SECTION 10. LIFE INSURANCE.
Executive acknowledges that Employer shall have the right, at its sole
expense, to procure life insurance on his life of which the Employer or its
designee shall be the sole beneficiary, and
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agrees that he shall take all such actions, submit to such examinations, and
execute all such documents as are reasonably necessary to enable Employer to
obtain such coverage.
SECTION 11. ENTIRE AGREEMENT; AMENDMENTS.
This Agreement, along with any exhibits or schedules attached hereto or
delivered pursuant hereto, all of which form a part hereof, contain the entire
understanding of the parties with respect to the matters set out herein, merging
and superseding all prior and contemporaneous agreements and understandings
between the parties with respect to such matters. This Agreement may be amended
only by a written instrument duly executed by all parties or their respective
heirs, successors, assigns or legal personal representatives.
SECTION 12. ASSIGNMENT.
Executive acknowledges that the services to be rendered by him are
unique and personal and, accordingly, that he shall not assign any of his rights
or delegate any of his duties or obligations under this Agreement.
SECTION 13. WAIVER OF BREACH.
Either party may, by written notice to the other: (i) extend the time
for the performance of any of the obligations or other actions of the other;
(ii) waive compliance with any of the covenants of the other contained in this
Agreement; and (iii) waive or modify performance of any of the obligations of
the other. However, mere forbearance or indulgence by either party in any regard
whatsoever shall not constitute a waiver of the covenant or condition to be
performed by the other party to which the same may apply and, until complete
performance of said covenant or condition, said party shall be entitled to
invoke any remedy available under this Agreement or by law or in equity despite
said forbearance or indulgence.
SECTION 14. NOTICES.
All notices, offers, requests, demands, and other communications
pursuant to this Agreement shall be given in writing by personal delivery, by
prepaid first class registered or certified mail properly addressed with
appropriate postage paid thereon, nationally recognized overnight courier
service, or facsimile transmission, and shall be deemed to be duly given and
received on the date of delivery if delivered personally, on the third business
day after the deposit in the United States Mail if mailed, upon acknowledgement
of receipt of electronic transmission if sent by facsimile transmission, or on
the first business day after delivery to a nationally recognized overnight
courier service for overnight delivery. Notices shall be sent to the parties at
the following addresses:
If to Employer: MD2patient, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attention: President
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With a copy to: Xxxxxx & Bird, LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: R. Xxxxxxx Xxxxxx
If to Executive: the address set forth on the signature page hereto
or to such other addresses as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
SECTION 15. GENDER, NUMBER.
Whenever the context of this Agreement so requires, the masculine
gender shall include the feminine or neuter, the singular number shall include
the plural, and reference to one or more parties hereto shall include all
assignees of the party.
SECTION 16. HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 17. GOVERNING LAW; FORUM; SERVICE OF PROCESS.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee. This Agreement and its subject matter have
substantial contacts with Tennessee, and all actions, suits, or other
proceedings with respect to this Agreement shall be brought only in a court of
competent jurisdiction sitting in Davidson County, Tennessee or in the Federal
District Court having jurisdiction over the County. In any such action, suit, or
proceeding, such court shall have personal jurisdiction of all of the parties
hereto, and service of process upon them under any applicable statutes, laws,
and rules shall be deemed valid and good. In the event of a party's actual or
threatened breach of the provisions of this Agreement, the other party to this
Agreement shall be entitled to an injunction restraining such party therefrom
and each party hereby consents to such injunction; provided, however, that
nothing herein shall be construed as prohibiting the other parties from pursuing
any other available remedies for such breach or threatened breach, including the
recovery of damages from such party.
SECTION 18. SEVERABILITY.
In the event that any provision of this Agreement, or the application
thereof to any person or circumstance, is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement in that jurisdiction or the application of
that provision to any other person or circumstance or in any other jurisdiction,
and this Agreement shall then be
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construed in that jurisdiction as if such invalid, illegal or unenforceable
provision had not been contained in this Agreement, but only to the extent of
such invalidity, illegality or unenforceability.
SECTION 19. FURTHER ASSURANCES.
Each party shall perform such further acts and execute and deliver such
further documents as may be reasonably necessary to carry out the provisions of
this Agreement.
IN WITNESS WHEREOF the parties hereto have caused the Agreement to be
executed by themselves or their duly authorized representatives as of the day
and year first written above.
EMPLOYER:
MD2PATIENT, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President
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EXECUTIVE:
/s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
Address:
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