EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is made and
executed this 21st day of July, 2005, by and between HealthStream, Inc., a
Tennessee corporation (the "Company"), and Xxxxxx X. Xxxxx, Xx., an individual
and resident of Nashville, Tennessee ("Executive").
IN CONSIDERATION of the mutual undertakings of the parties set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Executive hereby
agree as follows:
1. Employment. The Company hereby employs Executive, and Executive
hereby accepts employment with the Company, on the terms and conditions
hereinafter set forth.
2. Term. The initial term of this Agreement shall commence and shall be
effective as of the date set forth above (the "Effective Date") and shall extend
from that date for a period of two years, unless earlier terminated as provided
in this Agreement (the "Employment Term"). The Employment Term shall
automatically be extended for successive one year periods unless on or before a
date that is 90 days prior to the expiration of the Employment Term either the
Company or Executive shall have given written notice to the other of its or his
intention not to further extend the Employment Term, in which case in this
Agreement shall expire and terminate at the end of the initial or extended
Employment Term.
3. Nature of Duties and Responsibilities; Extent of Services. During
the Employment Term, Executive shall be employed by the Company as its President
and Chief Executive Officer, or such other executive position as Executive shall
approve, and shall have such duties, powers and authority as generally inure to
those offices. Executive shall have the principal authority and responsibility
for managing the day-to-day business and affairs of the Company. Executive shall
report to and take direction only from the Board of Directors of the Company.
During the Employment Term, Executive shall devote his full time to the business
of the Company. For purposes of this Agreement, the term "full time" shall mean
an average of 40 hours per work week.
4. Location; Travel. The permanent place of employment of Executive
shall be the corporate headquarters of the Company located in the metropolitan
Nashville, Tennessee area. Executive shall not be required to relocate his place
of employment outside of the metropolitan Nashville, Tennessee area at any time
during the Employment Term without his prior consent, which consent may be
withheld by Executive for any reason he deems appropriate. Executive may be
required to conduct reasonable travel in the course of the performance of his
duties on behalf of the Company.
5. Compensation.
(a) For all services rendered by Executive under this
Agreement, the Company shall compensate Executive at the annual base
rate of $150,000, payable in semi-monthly installments.
(b) The annual rate of compensation provided in Section 5(a)
may be adjusted for each year of the Employment Term by an amount
determined by the Compensation Committee of the Board of Directors of
the Company in its sole discretion; provided, that such annual rate of
compensation shall not at any time be less than the amount specified in
Section 5(a).
(c) During the Employment Term, Executive shall be eligible
for and shall participate in any bonus program, plan or arrangement
(whether formal or informal) generally adopted or made available by the
Company with respect to its officers or senior management
personnel, and the participation by Executive in any such program, plan
or arrangement shall be upon terms and conditions (including without
limitation the computation of amounts) substantially similar to those
applicable to any other participant in such program, plan or
arrangement; provided, that the Company may specify or require
performance criteria unique to Executive. Nothing in this Section 5(c)
shall be construed so as to require the Company to adopt any bonus
program, plan or arrangement.
(d) The Company shall continue to pay Executive his
compensation during any period of physical or mental incapacity or
disability until his employment is terminated as provided in Section
9(d); provided, that payments so made to Executive during the period of
disability shall be reduced by the sum of the amounts, if any, actually
received by Executive with respect to such period under disability
benefit plans provided by the Company at its cost or under the Social
Security disability insurance program, and which amounts were not
previously applied to reduce any such payment.
(e) During the Employment Term, the Company shall pay the
reasonable expenses incurred by Executive (based on business
development objectives and within limits that may be established by the
Board of Directors of the Company) in the performance of his duties
under this Agreement (or shall reimburse Executive on account of such
expenses paid directly by Executive) promptly upon the submission to
the Company by Executive of appropriate vouchers prepared in accordance
with applicable regulations of the Internal Revenue Service and all
policies and procedures of the Company.
6. Stock Options. During the Employment Term, Executive shall be
eligible for and shall participate in any stock option or stock purchase plan,
program or arrangement (whether formal or informal) generally adopted or made
available by the Company with respect to its officers or senior management
personnel, and the participation by Executive in any such plan, program or
arrangement shall be upon terms and conditions (including without limitation the
number of shares and the price at which such shares may be purchased) at least
as favorable as those applicable to any other participant in such plan, program
or arrangement.
7. Other Benefits. In addition to the benefits described herein,
Executive shall be entitled to and eligible for group medical and disability
insurance coverage, life insurance coverage, vacation and any other fringe
benefits that generally may from time to time be available to other executive
officers of the Company. Executive shall be eligible to participate in any
pension, profit sharing or other employee benefit plan of the Company or in
which the Company participates. Executive shall be eligible for reimbursement of
life insurance coverage in an amount not to exceed an annual cost of $10,000.
Any and all such benefits provided in this Section 7 shall terminate on the
expiration or earlier termination of this Agreement, except as otherwise
required by law.
8. Tax Withholding. With respect to all forms of compensation and
benefits to be provided by the Company to Executive under the terms of this
Agreement, the Company shall be entitled to deduct and withhold from Executive
all income, employment, payroll and other taxes and similar amounts required by
applicable law, rule or regulation of any appropriate governmental authority.
9. Termination.
(a) Termination for Cause. Prior to the end of the stated or
extended term of this Agreement, the Company may terminate this
Agreement for cause, as provided below. In such event, the Company
shall pay to Executive all accrued but unpaid compensation (excluding
any bonus) earned to the effective date of termination, and the Company
shall thereafter have no
further liability hereunder to Executive. The Company may terminate
Executive for cause without notice in the event that Executive (i) has
committed any act of intentional fraud or dishonesty that relates to
the business of the Company; (ii) is convicted of, or enters a plea of
nolo contendere with respect to, any felony at any time hereafter;
(iii) willfully fails or refuses to perform his duties hereunder (other
than as a result of Executive's incapacity due to physical or mental
illness) within 30 days after a written demand for substantial
performance is delivered to Executive by the Company specifying with
reasonable particularity the duty or duties which the Company believes
Executive has failed or refused to perform, or (iv) commits any other
material breach of this Agreement which breach is not cured by
Executive within 90 days of the date on which written notice of such
breach is provided by the Company to Executive.
(b) Termination Without Cause. Prior to the end of the stated
or extended term of this Agreement, the Company may terminate this
Agreement, other than as provided in Section 9(a), upon 10 days prior
written notice to Executive. In such event, the Company shall pay to
Executive the amounts required under Section 9(i)).
(c) Death of Executive. In the event Executive's death occurs
during the stated or extended term of this Agreement, Executive's
employment with the Company shall terminate automatically and the
Company shall pay to the estate of Executive all accrued but unpaid
compensation (including any bonus previously declared or determined)
earned to the date of death.
(d) Disability of Executive. In the event that Executive, due
to any physical or mental illness, injury or condition, has been absent
from his duties with the Company for more than 180 days (whether or not
consecutive) during any 12-month period, the Company may terminate this
Agreement immediately upon notice to Executive, in which case the
Company shall pay to Executive or his legal guardian all accrued but
unpaid compensation (including any bonus previously declared or
determined) earned to the date of such termination.
(e) Voluntary Resignation. Executive may, upon 60 days prior
written notice to the Company, voluntarily resign and thereby terminate
this Agreement at any time prior to the expiration of the stated or
extended term of this Agreement. In such event, the Company shall pay
to Executive all accrued but unpaid compensation (excluding any bonus)
earned to the effective date of resignation.
(f) Good Reason; Change of Control. Executive may, upon 30
days prior written notice to the Company, voluntarily resign for Good
Reason at any time following any occurrence of a Change of Control. In
such event, the Company shall pay to Executive the amounts required
under Section 9(i).
For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any one of the following events, unless corrected by the
Company during the 30-day notice period referred to in the first
paragraph of this Section 9(f):
(i) Any change in Executive's title, authorities,
responsibilities (including reporting responsibilities) which,
in Executive's reasonable judgment, represents an adverse
change from his status, title, position or responsibilities
(including reporting responsibilities) which were in effect
immediately prior to the Change in Control or from his status,
title, position or responsibilities (including reporting
responsibilities) which were in effect following a Change in
Control pursuant to Executive's consent to accept any such
change; the assignment to him of any duties or work
responsibilities which, in
his reasonable judgment, are inconsistent with such status,
title, position or work responsibilities; or any removal of
Executive from, or failure to reappoint or reelect him to any
such positions, except if any such changes are because of
disability, retirement, death or cause (as defined in Section
9(a));
(ii) Any reduction by the Company in Executive's
annual base salary as in effect on the date hereof or as the
same may be increased from time to time except for
across-the-board salary reductions similarly affecting all
senior executives of the Company and all senior executives of
any Person (as defined below) in control of the Company;
provided, that in no event shall any such reduction reduce
Executive's base salary below $150,000;
(iii) The relocation of Executive's office at which
he is to perform his duties to a location more than 30 miles
from the location at which Executive performed his duties
prior to the Change in Control, except for required travel on
the Company's business to an extent substantially consistent
with his business travel obligations prior to the Change in
Control;
(iv) If the Executive had been based at the Company's
principal executive offices immediately prior to the Change in
Control, the relocation of the Company's principal executive
offices to a location more that 30 miles from the location of
such offices immediately prior to the Change in Control;
(v) The failure by the Company, without Executive's
consent, to pay to Executive any portion of Executive's
current compensation, or to pay to Executive any portion of an
installment of deferred compensation under any deferred
compensation program of the Company, within seven days of the
date such compensation is due;
(vi) The failure by the Company to continue in effect
any stock-based and/or cash annual or long-term incentive
compensation plan in which Executive participates immediately
prior to the Change in Control, unless Executive participates
after the Change in Control in other comparable plans
generally available to senior executives of the Company and
senior executives of any Person in control of the Company;
(vii) The failure by the Company to continue to
provide Executive with benefits substantially similar in value
to Executive in the aggregate to those enjoyed by Executive
under any of the Company's pension, life insurance, medical,
health and accident or disability plans in which Executive was
participating immediately prior to the Change in Control,
unless Executive participates after the Change in Control in
other comparable benefit plans generally available to senior
executives of the Company and senior executives of any Person
in control of the Company; or
(viii) The adverse and substantial alteration of the
nature and quality of the office space within which Executive
performed his duties prior to a Change in Control as well as
in the secretarial and administrative support provided to
Executive, provided, that a reasonable alteration of the
secretarial or administrative support provided to Executive as
a result of reasonable measures implemented by the Company to
effectuate a cost-reduction or consolidation program shall not
constitutes Good Reason hereunder.
For purposes of this Agreement, a "Change in Control" shall
mean the occurrence at any time during the Employment Term of any one
of the following events:
(i) An acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting
Securities") by any "Person" (as that term is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) other than
Executive, immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of more than 50% of the combined voting
power of the Company's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control
has occurred, Voting Securities which are acquired in a
Non-Control Acquisition shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (1) an employee
benefit plan (or a trust forming a part thereof) maintained by
(A) the Company, or (B) any corporation or other Person of
which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or
indirectly, by the Company or the stockholders of the Company
in substantially the same proportion as their ownership of the
Voting Securities (for purposes of this definition, a
"Subsidiary"), (2) the Company or its Subsidiaries, or (3) any
Person in connection with a Non-Control Transaction (as
hereinafter defined);
(ii) The individuals who, as of the date of this
Agreement, are members of the Board of Directors of the
Company (the "Incumbent Board"), cease for any reason to
constitute at least a majority of the members of the Board of
Directors of the Company; provided, however, that if the
election, or nomination for election by the Company's
stockholders, of any new director was approved by a vote of at
least a majority of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided, further, however,
that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as
a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of
Directors of the Company (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(iii) Approval by stockholders of the Company of:
(1) A merger, consolidation or
reorganization involving the Company, unless such
merger, consolidation or reorganization is a
Non-Control Transaction. A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization
of the Company where the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own directly or indirectly
immediately following such merger, consolidation or
reorganization, 50% or more of the combined voting
power of the outstanding voting securities of the
corporation or its parent entity resulting from such
merger or consolidation or reorganization in
substantially the same proportion as their ownership
of the Voting Securities immediately before such
merger, consolidation or reorganization;
(2) A complete liquidation or dissolution of
the Company; or
(3) An agreement for the sale or other
disposition of all or substantially all of the assets
of the Company to any Person (other than a transfer
to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject Person")
acquired Beneficial Ownership of more than the permitted amount of the
then outstanding Voting Securities as a result of the acquisition of
Voting Securities by the Company which, by reducing the number of
Voting Securities than outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and
after such share acquisition by the Company, the Subject Person becomes
the Beneficial Owner of any additional Voting Securities which
increases the percentage of the then outstanding Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control
shall occur.
(g) Change of Duties. Executive may, upon 30 days prior
written notice to the Company, voluntarily resign and thereby terminate
this Agreement at any time after there has been a material reduction in
his duties, powers or authority as an officer or employee of the
Company (a "Material Change") without the express written consent of
Executive and the Company fails to cure such Material Change within 10
days of notice thereof by Executive. In such event, the Company shall
pay to Executive the amounts required under Section 9(i). For purposes
of this Agreement, a Material Change shall be deemed to have occurred
if (i) any person other than Executive is elected by the Board of
Directors of the Company to hold the office of Chief Executive Officer,
(ii) Executive is made subordinate to any other officer or employee of
the Company, or (iii) Executive ceases to be a member of the Board of
Directors of the Company at any time for any reason other than his
resignation or removal by the Board of Directors for cause (as defined
in Section 9(a)).
(h) Material Breach by Company. In the event that the Company
materially breaches this Agreement, which breach is not cured by the
Company within 90 days of the date on which written notice of such
breach is provided by Executive to the Company, Executive may
thereafter voluntarily resign and thereby terminate this Agreement. In
such event, the Company shall pay to Executive the amounts required
under Section 9(i).
(i) Severance Benefits. In the event that (i) the Company
terminates the employment of Executive without cause (as provided in
Section 9(b)), (ii) Executive elects to resign for Good Reason after
the occurrence of a Change in Control (as provided in Section 9(f)),
(iii) Executive elects to resign and terminate this Agreement upon the
occurrence of a Material Change (as provided in Section 9(g)), or (iv)
Executive elects to resign and terminate this Agreement upon the
occurrence of a material breach of this Agreement by the Company (as
provided in Section 9(h)), then, in addition to all accrued but unpaid
compensation earned to the effective date of such termination, the
Company shall pay to Executive a severance benefit computed as provided
in this Section 9(i). The severance benefit shall be an amount equal to
1.5 times the most recent recommended salary by the Compensation
Committee for the Executive(such amount hereafter referred to as the
"Annual Salary Amount"). In the event that Executive elects to resign
for Good Reason after the occurrence of a Change in Control (as
provided in Section 9(f)), then, in addition to the payment of the
severance benefit described herein, the Company shall amend each stock
option or stock purchase agreement between Executive and the Company to
provide for the full and immediate vesting of all options, shares and
other benefits provided therein, in each case effective as of the date
of the termination of Executive.
(j) Manner of Payment. The amount of the severance benefit
required under Section 9(i) shall be paid by the Company to Executive
in 12 equal monthly installments beginning one month after the
effective date of termination.
(k) Effect of Termination. Other than as expressly provided in
this Agreement, all forms of compensation and benefits provided to
Executive herein shall terminate on the expiration or earlier
termination of this Agreement.
(l) Resignation as Chairman. If Executive's employment by the
Company is terminated for any reason, Executive hereby agrees that he
shall simultaneously submit his resignation as the Chairman of the
Board of Directors of the Company, if Executive then serves in such
capacity. If Executive fails to submit such required resignation in
writing, the provisions of this Section 9(l) may be deemed by the
Company to constitute the Executive's written resignation as the
Chairman effective as of the effective date of termination. Nothing in
this Section 9(l) shall require Executive to resign as a member (other
than the Chairman) of the Board of Directors of the Company, and
Executive may continue to serve in a capacity other than as the
Chairman notwithstanding the termination of his employment.
10. Restrictive Covenant.
(a) Executive hereby covenants and agrees that during the
Employment Term and for a period of one year thereafter and provided
that the Company has made all severance payments to which Executive is
entitled, as due, Executive shall not, directly or indirectly: (i) own
any interest in, operate, join, control or participate as a partner,
director, principal, officer or agent of, enter into the employment of,
act as a consultant to, or perform any services for any entity (each a
"Competing Entity") which has material operations which compete with
any business in which the Company is then engaged; (ii) solicit any
customer or client of the Company with respect to any business in which
the Company is then engaged (other than on behalf of the Company); or
(iii) induce or encourage any employee of the Company to leave the
employ of the Company; provided, that Executive may: (1) subject to the
provisions of Section 3, continue his association with each of the
entities described on Exhibit A hereto; and (2) solely as an
investment, hold not more than 5% of the combined voting securities of
any publicly-traded corporation or other business entity. The foregoing
covenants and agreements of Executive are referred to herein as the
"Restrictive Covenant." Executive represents and warrants to the
Company that each entity listed on Exhibit A is not a Competing Entity
as of the date hereof.
(b) Executive has carefully read and considered the provisions
of the Restrictive Covenant and, having done so, agrees that the
restrictions set forth in this Section 10, including without limitation
the time period of restriction set forth above, are fair and reasonable
and are reasonably required for the protection of the legitimate
business and economic interests of the Company.
(c) Executive acknowledges that the Company's business is and
will be built upon the confidence of those with whom it conducts
business and that Executive will gain acquaintances and develop
relationships by using the good will of the Company. Executive also
acknowledges that the Company's business is and will be built upon the
success of the Company in research, development and marketing, and
through the development of certain business methods and trade secrets,
and that Executive's position will give him confidential knowledge of
all aspects of the Company's business and internal operations. In
addition, Executive acknowledges that the Company's dealings through
Executive will give Executive confidential knowledge that should not be
divulged or used for his own benefit. Executive recognizes and agrees
that his violation of any provision of the Restrictive Covenant will
cause irreparable harm to the Company.
(d) In the event that, notwithstanding the foregoing, any of
the provisions of this
Section 10 or any parts hereof shall be held to be invalid or
unenforceable, the remaining provisions or parts hereof shall
nevertheless continue to be valid and enforceable as though the invalid
or unenforceable portions or parts had not been included herein. In the
event that any provision of this Section 10 relating to the time period
and/or the area of restriction and/or related aspects shall be declared
by a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the time
period and/or area of restriction and/or related aspects deemed
reasonable and enforceable by such court shall become and thereafter be
the maximum restrictions in such regard, and the provisions of the
Restrictive Covenant shall remain enforceable to the fullest extent
deemed reasonable by such court.
11. Remedies. Executive agrees that in the event of any conduct by
Executive violating any provision of Section 10, the Company shall be entitled,
if it so elects, to institute and prosecute proceedings in any court of
competent jurisdiction, either at law or in equity, to obtain damages for such
conduct, to enforce specific performance of such provision, to enjoin Executive
from such conduct, to obtain an accounting and repayment of all profits,
compensation, commissions, remuneration or other benefits that Executive
directly or indirectly has realized and/or may realize as a result of, growing
out of, or in connection with any such violation, or to obtain any other relief,
or any combination of the foregoing, that the Company may elect to pursue.
Executive shall pay all legal fees and other costs incurred by the Company to
enforce the provisions of Sections 10 and to obtain the remedies provided in
this Section 11.
12. Representations.
(a) The Company represents and warrants that this Agreement
has been authorized by all necessary corporate action of the Company
and is a valid and binding agreement of the Company enforceable against
it in accordance with its terms.
(b) Executive represents and warrants that he is not a party
to any agreement or instrument that would prevent him from entering
into or performing his duties in any way under this Agreement.
13. Waiver of Breach. The waiver by either party of a breach of any
provisions of this Agreement by either party shall not operate or be construed
as a waiver of any subsequent breach by either party.
14. Successors. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors and permitted assigns of the parties hereto.
This Agreement may not be assigned by Executive or by the Company without the
prior written consent of the other, except that the Company may assign this
Agreement to any business entity that acquires the Company or its business
operations and thereafter conducts the business of the Company.
15. Construction. This Agreement shall be construed under and enforced
in accordance with the internal laws of the State of Tennessee.
16. Entire Agreement. This Agreement is the entire agreement of the
parties and supersedes all prior agreements and understandings, written or oral.
This Agreement shall not be amended or modified except in writing executed by
both parties.
17. Notice. For the purposes of this Agreement, notices shall be deemed
given when mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed in the case of the Company to its
principal executive office; or in the case of Executive to the address shown on
the signature page of this Agreement. Either party may change such address by
giving the other party notice of such change in the aforesaid manner, except
that notices of changes of address shall only be effective upon receipt.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
HEALTHSTREAM, INC.
By: /s/ Xxxxx Xxxxxx
---------------------
Title: Member, Compensation Committee of the
Board of Directors
EXECUTIVE:
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------
Xxxxxx X. Xxxxx, Xx.
Address:
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
EXHIBIT A
HearingPlanet, Inc.
