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EXHIBIT 10.17
INFOCURE CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the ____
day of ________________________________, 1997 between INFOCURE CORPORATION, a
Delaware corporation ("Company"), and Xxxxxx X. Xxxxxx ("Executive").
WHEREAS, the Company, through its subsidiaries, has developed and is
marketing computer software programs and related services in the health care
industry and continues to develop and market such software programs and related
services;
WHEREAS, the Company agrees to employ Executive as an executive to
provide the services set forth herein; and
WHEREAS, Executive agrees to provide such services in accordance with
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein made
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT/DUTIES. (a) The Company shall employ Executive as
an executive during the term of his employment as set forth in this Agreement
and Executive hereby accepts such employment. Executive's initial position
shall be President of DR Software, Inc. ("Subsidiary") and shall have day to
day responsibility for the Subsidiary.
(b) Executive shall have such powers and duties as
assigned to him by the President of the Company and Board of Directors of
Subsidiary from time to time.
(c) Executive shall keep the President of the Company and
the Board of Directors of the Subsidiary timely advised of all significant
developments and opportunities and shall timely consult with the President of
the Company and the Board of Directors of the Subsidiary on all significant
policies and contracts. Executive's powers and duties are subject to the
supervision and instructions of the Board of Directors of Subsidiary and the
President of the Company.
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(d) Executive will use commercially reasonable efforts to
perform his duties during normal working hours in accordance with the
applicable business plans and budgets and policies in effect.
(e) Executive agrees that he will at all times faithfully
and to the best of his ability and experience faithfully perform all of the
duties that may be required of him pursuant to the terms of this Agreement.
Executive shall devote his full business time to the performance of his
obligations hereunder.
2. COMPENSATION.
(a) Base Salary. During the term of his employment,
including any extension thereof pursuant to the Agreement, the Company will pay
to Executive a base salary ("Base Salary") of $110,000 per year, payable in
arrears in equal semi-monthly payments. The Base Salary rate shall increase as
of the first anniversary of this Agreement and each subsequent anniversary by
the increase of the CPI for all Uban Consumers, All Items, U.S. City Average
for the then most recent 12 months as published by the U.S. Bureau of Labor
Statistics. In the event of a disability, to the extent payments are received
under an employer-sponsored disability program, the payments hereunder are to
be reduced by an amount equal to such disability payments.
(b) Incentive Compensation. During the term of
Executive's employment hereunder, including any extension thereof, in addition
to the Base Salary as provided in paragraph 2(a), Executive will be eligible
for annual incentive compensation ("Incentive Compensation") pursuant to a
program established by the Board of Directors in its sole discretion, from time
to time, provided that the objectives of the program are met. The Incentive
Compensation shall be pursuant to a program based upon the achieving certain
revenue and/or profit goals and/or other goals ("Goals") of the Company and/or
of the business unit for which Executive has responsibilities. Upon the
establishment of the program and Goals, the parties hereto shall enter into an
agreement setting forth the Incentive Compensation, which agreement shall be
attached hereto as Exhibit A and shall constitute a part of this Agreement.
(c) Stock Options. The Company shall grant to Executive
on the date hereof a stock option for an aggregate of ____________________
shares of Common Stock, par value $.001, of the Company ("Common Stock") at its
fair market value on the date hereof. Attached hereto as Exhibit B is a copy
of the Company's Stock Option Plan, which is subject to shareholder approval,
and Exhibit C, which is the form of stock option agreement. The Company
intends to file a registration statement on Form S-8 to cover the shares to be
issued pursuant to the Company's Stock Option Plan.
(d) Automobile Allowance. Executive shall receive an
automobile allowance of $1,000 per month and operating costs when operated for
business purposes. The automobile allowance is payable semi-monthly together
with the Base Salary of the Executive.
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(e) Business Allowance. There shall be established a
business expense allowance of $6,000 per year for each twelve-month period of
this Agreement (prorated for portions of a year) for such business expenses
incurred by the Executive in his sole discretion which are not otherwise
authorized under the Company's policies. Executive may incur, and the Company
shall pay, such business expenses as designated by the Executive not to exceed
in each twelve- month period the annual business expense allowance in the
aggregate.
(f) Employee Benefit Program. Executive shall be
eligible to participate in all employee benefit programs, including medical and
hospitalization programs, now or hereafter made available to its employees,
subject to the terms and conditions of such programs, including eligibility.
It is understood that the Company reserves the right to modify and rescind any
program or adopt new programs in its sole discretion. The Company may, in its
sole discretion, maintain key man life insurance on the life of Executive and
designate the Company as the beneficiary. Executive agrees to execute any
documents necessary to effect such policy. The Company shall use commercially
reasonable efforts to provide Executive with medical and hospital coverage
which is equivalent to that which is currently in effect for employees of DR
Software for 12 months. The parties acknowledge that the Company intends to
implement uniform employee benefits throughout the Company and its subsidiaries
at reasonable costs and thus such programs will not be identical to the current
programs; provided, however, the Company will make no change that will exclude
the Executive, his spouse and members of his family from having coverage.
(g) Expenses. Executive shall be reimbursed for expenses
reasonably incurred in the performance of his duties hereunder in accordance
with the policies of the Company then in effect.
(h) Vacation. Executive shall be entitled to four (4)
weeks of vacation for each full year of service. Vacations shall be taken at
such times as not to materially interfere with the business of the Company.
The vacation time must be taken within the time period specified in the program
or as otherwise mutually agreed in writing, otherwise it expires to the extent
not used as of each December 31.
(i) Purchase of Motor Vehicle. If Executive is currently
being provided the right to use a motor vehicle owned or leased by the Company
or any subsidiary, Executive may purchase the motor vehicle at its net book
value or assume the lease within thirty (30) days of the date of this
Agreement.
3. TERM. The term of the employment of Executive under this
Agreement shall be for a period of two (2) years ("Initial Term") commencing on
the date hereof and ending on the second (2nd) anniversary thereof, subject to
earlier termination as provided in Paragraph 4. The term of employment shall
continue after the Initial Term under this Agreement, subject to earlier
termination as provided in Paragraph 4, for additional one-year terms unless it
is terminated at the end of the Initial Term or as of any anniversary of the
Initial Term, as the case may be, by either party upon sixty (60) days prior
written notice. If the employment of Executive continues thereafter, absent a
written agreement, the employment shall be at will and the provisions of this
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Agreement shall be of no force and effect with respect to such subsequent
period, except for the provisions of paragraphs 5, 6, and 7.
4. EARLY TERMINATION.
(a) For Cause. (1) Notwithstanding the foregoing, the
Company may terminate the employment of Executive "for cause" (as hereinafter
defined) at any time upon written notice effective immediately. The term "for
cause" shall mean (i) the continued failure by Executive substantially to
perform his duties as provided in paragraph 1, in a reasonably professional
manner other than due to total disability or death for a period of thirty (30)
days after a written demand for substantial performance is delivered to
Executive by the Board of Directors or Chairman or President of the Company,
which demand identifies the manner in which the Board or Chairman or President
believes Executive has not substantially performed his duties, (ii) the
unauthorized dissemination of material trade secrets or other material
proprietary property of the Company or its parent or subsidiaries of its
parent, (iii) the commission of a felony or any other crime involving moral
turpitude or the pleading of nolo contendere to any such act, (iv) the
commission of any act or acts of dishonesty when such acts are intended to
result or result, directly or indirectly, in gain or personal enrichment of
Executive or any related person or affiliated the Company or are intended to
cause harm or damage to the Company or its parent or subsidiaries of its
parent, (v) the illegal use of controlled substances, (vi) the use of alcohol
so as to have a material adverse effect on the performance of his duties, (vii)
the misappropriation or embezzlement of assets of the Company or its parent or
subsidiaries of its parent, (viii) the making of disparaging remarks regarding
the Company or its parent or subsidiaries of its parent or the products or
services of any such person to suppliers and/or customers of the Company, its
parent or subsidiaries of its parent, or (ix) the breach of any other material
term or provision of this Agreement to be performed by Executive which have not
been cured within thirty (30) days of receipt of written notice of such breach.
(2) Upon termination for cause the Company shall
have no further obligation to pay any compensation to Executive for periods
after the effective date of the termination for cause, except for Base Salary
which accrued as of the termination date. In addition, the right to exercise
any vested stock option shall terminate on the effective date of the
termination of employment for cause.
(b) Termination Upon Death or Disability.
(1) The employment of Executive shall terminate
upon his death or, ten (10) business days after written notice by the Company
of termination, upon or during the continuance of the total disability (as
hereinafter defined) of Executive.
(2) Upon termination upon death or upon or during
total disability, the Company shall have no further obligation to pay any
compensation for periods after the effective date of such termination, except
for Base Salary and Incentive Compensation which accrued as of
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the termination date. To the extent stock options have vested as of such
termination date, they shall continue to be exercisable for a period of twelve
(12) months thereafter as set forth in the stock option agreements not to
exceed the stated expiration date of the stock option.
(3) The term "total disability" means the
inability of Executive to substantially perform his duties hereunder for a
continuous period of thirty (30) days unless extended in writing by the
Company. Total disability shall be deemed to commence upon the expiration of
such continuous thirty (30) day period. In the event of any dispute as to the
"total disability" of the Executive, the matter shall be resolved by the
decision of a single physician, serving as an arbitrator, mutually selected or
appointed in accordance with the rules of the American Arbitration Association,
Atlanta, Georgia. The decision of the arbitrator shall be binding on all
parties hereto. Executive agrees to submit medical records requested and to
submit to such examination and testing requested by such physician.
(c) Termination by Company without Cause.
In the event the Company terminates the employment of
the Executive, except for cause, prior to the expiration of term of this
Agreement as set forth in paragraph 3 hereof, the Company will pay Executive,
as its sole and exclusive liability hereunder, an amount equal to six (6)
months of the Executive's then current monthly base salary. Payment shall be
made within 5 days of such termination.
5. COVENANT NOT TO COMPETE.
(a) Executive agrees that for the period commencing on
the date hereof and ending one (1) year after the expiration of the term of his
employment under this Agreement (and if employment is continued thereafter "at
will", then after termination of his employment with the Company or its parent
or subsidiaries of its parent for any reason thereafter), Executive will not,
alone or with others, directly or indirectly, own, manage, operate, join,
control, participate in the ownership, management, operation or control of, be
employed by, consult with, advise or be connected in any other manner with any
business which develops, distributes or markets software programs and/or
services which compete with the software programs and services of the kind
currently marketed by the Company for use in the United States ("Territory")
other than with the Company and its parent and subsidiaries of its parent.
This covenant not to compete shall not prohibit (i) ownership by Executive of
not more than one percent (1%) of the equity securities of companies listed on
any United States stock exchanges or traded over the counter or (ii)
engagements which do not involve, directly or indirectly, the development,
distribution or marketing of competitive products or services by entities
engaged in such competitive businesses. The software programs and services
currently marketed by the Company are practice management software products and
services for use by health care providers, including the utilization of EDI
services by such health care providers.
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The terms "distributes" and "markets" do not include distribution of
software programs by retail software outlets.
(b) Each city and county of each state and each state in
the Territory and each month of time covered by this covenant not to compete
shall be deemed a severable unit and should any court determine that the
inclusion of all states, cities and counties or months would render any such
undertaking unreasonable or unenforceable for any reason, those units which are
necessary in the judgment of the court to be deleted in order to render such an
undertaking reasonable and enforceable shall be deemed free of such non-compete
undertaking, but such undertaking shall remain in full force and effect as to
every other unit of territory and time.
6. NON-SOLICITATION OF CUSTOMERS.
Executive agrees that during the period of one year
immediately following termination of his employment for any reason with the
Company by himself or by the Company, the Executive shall not on his own behalf
or on behalf of any other person, including any other corporation, solicit,
contact, call upon, communicate with or attempt to communicate with any
customer or prospective customer of the Company or any representative of any
customer or prospective customer of the Company with a view to the sale
(licensing or lease) of any software program or service competitive or
potentially competitive with any software program or service sold, licensed,
leased, provided or under development by the Company during the period of two
years immediately preceding termination of his employment with the Company for
any reason provided that the restrictions set forth in this paragraph 6 shall
apply only to customers or prospects of the Company or representative thereof
with which the Executive had contact during such two year period. The actions
prohibited by this paragraph 6 shall not be engaged in by the Executive
directly or indirectly.
7. NON-SOLICITATIONS OF EMPLOYEES.
Executive agrees that, during his employment and for a period
of one year following termination of his employment with the Company for any
reason by himself or by the Company, the Executive will not, directly or
indirectly, solicit or in any manner encourage employees of the Company to
leave its employ for an engagement in any capacity by another person.
8. DISCOVERIES, PATENTS, INVENTIONS AND COPYRIGHTS. Executive
shall execute simultaneously with the execution of this Agreement the standard
employee agreement of the Company regarding discoveries, patents, inventions
and copyrights, a copy of which is attached hereto as Exhibit D.
9. SPECIFIC PERFORMANCE. Because of his knowledge and
experience, Executive agrees that the Company shall be entitled to specific
performance or an injunction or other similar relief in addition to all other
rights and remedies it might have for any violation of the
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undertakings set forth in Paragraphs 5, 6 and 7 of this Agreement without the
posting of a bond or other security and without the proof of actual damages.
10. NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given upon receipt when delivered by hand or by express
mail, overnight courier or other similar method or by facsimile transmission
(provided a copy is also sent by registered or certified mail), or five (5)
days after deposit of the notice in the U.S. Mail, if mailed by certified or
registered mail, with postage prepaid addressed to the respective party as set
forth below, which address may be changed by written notice to the other party:
(a) If to the Company:
InfoCure Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
(b) If to Executive:
_________________________________
_________________________________
_________________________________
11. BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon and enforceable by Executive and his estate, personal
representatives and heirs, and by the Company and its successors and assigns.
This Agreement and the payments hereunder may not be assigned, pledged or
otherwise hypothecated by Executive. This Agreement may be assigned by the
Company to any subsidiary of the Company or of its parent, if any, and to any
successor of its business; provided, however, such assignment shall not relieve
the Company of its obligations hereunder.
12. ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto to constitute the entire understanding of the parties with respect to
the employment of Executive by the Company and supersedes all prior agreements
and understandings oral or written. All prior agreements between Executive and
the Company or any subsidiary are null and void, as of the date hereof, except
for such accrued liabilities that are recorded as a liability as of such date
on the financial books and records of such company.
13. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise
specifically provided, all disputes arising under this Agreement shall be
submitted to and settled by arbitration. Arbitration shall be by one (1)
arbitrator selected in accordance with the rules of the American
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Arbitration Association, Atlanta, Georgia ("AAA") by the AAA. The hearings
before the arbitrator shall be held in Atlanta, Georgia and shall be conducted
in accordance with the rules existing at the date thereof of the AAA to the
extent not inconsistent with this Agreement. The decision of the arbitrator
shall be final and binding as to any matters submitted to them under this
Agreement. All costs and expense incurred in connection with any such
arbitration proceeding and those incurred in any civil action to enforce the
same shall be borne by the party against which the decision is rendered.
14. AMENDMENTS. This Agreement may not be amended or modified
except in a writing signed by both parties.
15. WAIVERS. The failure of either party to insist upon a strict
performance of any provision hereof shall not constitute a wavier of such
provision. All waivers must be in writing.
16. GOVERNING LAW. This Agreement shall be deemed to be made in
and in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
INFOCURE CORPORATION
By: _________________________________
Name:____________________________
Title:___________________________
EXECUTIVE
_____________________________________
Name: M. Xxxxx Xxxxxx
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EXHIBIT A
INCENTIVE COMPENSATION
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EXHIBIT B
STOCK OPTION PLAN
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EXHIBIT C
STOCK OPTION AGREEMENT
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EXHIBIT D
EMPLOYMENT AGREEMENT REGARDING
DISCOVERIES, PATENTS, INVENTIONS AND COPYRIGHTS
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