AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “Agreement”) is made as of
December 21, 2004 between Active Health Management, Inc., a Delaware corporation
with an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
“Company”), and Xxxxx
Xxxxxxx, M.D., an individual residing at 00 Xxxxxx Xxxxxxx, Xxxxxxx, Xxx
Xxxx 00000 (“Executive”).
W I T N E S S E T H :
WHEREAS, the Company (formerly known as
ARMS Corporation) and Executive are parties to an Employment Agreement dated as
of September 1, 1998 (the “Original Employment
Agreement”), and the Company and Executive wish to amend and restate the
terms of the Original Employment Agreement as hereinafter set
forth;
WHEREAS,
the Company wishes to continue to retain the services of Executive on terms and
conditions mutually agreeable and beneficial to the Company and Executive;
and
WHEREAS,
Executive is willing to continue to render his services to the Company pursuant
to the terms and conditions hereof;
NOW,
THEREFORE, in consideration of the premises and of the mutual promises,
representations and covenants herein contained, the parties hereby agree as
follows:
1. EMPLOYMENT. The
Company hereby employs Executive and Executive hereby accepts such employment,
subject to the terms and conditions herein set forth. Executive shall
serve in the position of Chief Executive Officer of the Company.
2. TERM. This
Agreement shall commence on the date hereof and shall continue in full force and
effect until December 31, 2008. Thereafter, this Agreement shall
automatically be renewed for successive terms of one year each unless either
party shall give the other party written notice, at least 90 days prior to the
end of the then current term, of its or his intent not to renew this
Agreement. Notwithstanding the foregoing, this Agreement may be
terminated prior to the expiration of the then current term under the
circumstances described in Section 7 below in accordance with the provisions
thereof.
3. COMPENSATION.
(a) Base Salary. As
compensation for the employment services to be rendered by Executive hereunder,
including all services as an officer of the Company and any of its subsidiaries
or affiliates (“related
entities”), the Company agrees to pay, or cause to be paid, to Executive,
and Executive agrees to accept, an annual salary of $365,000.00, payable in
equal installments in accordance with Company practice. The foregoing salary
shall be reviewed annually by the Board of Directors of the Company (the “Board”) or its Compensation
Committee, which shall consider, in its sole discretion, whether to increase the
same in light of increased responsibilities, changes in the cost of living and
other factors which the Board may deem relevant.
(b) Other
Compensation. In addition to the base salary provided for in
Section 3(a) hereof, in respect of calendar year 2004 and each calendar year
thereafter during the term hereof, Executive shall also be eligible to receive
additional compensation in the form of a performance bonus (a “Bonus”) for such year
pursuant to a bonus plan established and administered by the Board (or its
Compensation Committee), in its sole discretion, for the benefit of the
Company's senior management. The amount of the Bonus for each year,
if any, shall be a function of Executive's efforts and performance, as well as
the Company's growth, results of operations and financial condition, and such
other factors as the Board (or its Compensation Committee) may, in its sole
discretion, deem relevant. The Company shall have no obligation to
establish such a bonus plan, or to pay to Executive any Bonus thereunder, if the
Board (or its Compensation Committee), in its sole discretion, determines not to
establish such a plan and/or not to make a payment under such a plan to
Executive.
4. EXPENSES. The
Company shall pay or reimburse Executive, upon presentment of suitable vouchers,
for all reasonable business and travel expenses which may be incurred or paid by
Executive in connection with his employment hereunder. Executive
shall comply with such restrictions and shall keep such records as the Company
may deem necessary to meet the requirements of the Internal Revenue Code of
1986, as amended from time to time, and regulations promulgated
thereunder.
5. OTHER
BENEFITS.
(a) Executive
shall be entitled to vacation at the rate of four (4) weeks per year, with
vacation time to accrue based upon the accrual schedule set forth in the
Company's Employee Handbook. All vacation days shall be taken at such
times as do not unreasonably interfere with the business of the
Company. Executive may be entitled to carry unused vacation time
forward from year to year, and to be compensated for any unused vacation time,
in accordance with the policy of the Company with respect to such matters in
effect from time to time.
(b) Executive
shall be entitled to participate in all pension and welfare plans, programs and
benefits offered by the Company generally with respect to senior officers of the
Company, all as determined from time to time by the Company's Board of
Directors, in accordance with the terms and conditions of such plans and
programs.
(c) The
Company shall provide medical malpractice insurance coverage covering acts and
omissions of Executive as a physician, which coverage shall include acts and
omissions of Executive in the private practice of medicine as described in
Section 6(b) below.
6. DUTIES.
(a) Executive
shall be subject to the direction of the Board of Directors of the
Company. Executive shall perform such duties and functions
appropriate to the position of Chief Executive Officer as the Board of Directors
of the Company shall from time to time determine. At the request of the Board of
Directors of the Company, Executive shall serve as a senior officer and/or
director of any related entity of the Company.
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(b) During
the term of this Agreement, Executive shall devote all of his working time and
attention, reasonable vacation time and absences for sickness excepted, to the
business of the Company, as necessary to fulfill his
duties. Executive shall perform the duties assigned to him with
fidelity and to the best of his ability. Executive shall deal at all
times in good faith with the Company and shall conduct himself at all times in
the best interest of the Company. Notwithstanding anything herein to
the contrary, Executive may engage in other activities so long as such
activities do not unreasonably interfere with Executive's performance of his
duties hereunder and do not violate Section 9 hereof. Without
limiting the generality of the foregoing, the occasional private practice of
medicine, in accordance with Executive's medical licenses and consistent with
his board certifications, shall be deemed to be described in this Section 6(b)
and shall be deemed not to unreasonably interfere with Executive's performance
of his duties hereunder and not to violate the provisions of Section 9 hereof;
provided, that such private practice of medicine shall not require more than an
average of five (5) hours per week of Executive's time during normal business
hours.
(c) The
principal location at which Executive shall perform his duties hereunder shall
be at the offices of the Company in New York, New York, or as reasonably changed
in the future, although Executive understands and agrees that he will be
required to travel from time to time for business reasons.
7. TERMINATION
OF EMPLOYMENT; EFFECT OF TERMINATION.
(a) This
Agreement and Executive's employment hereunder shall be terminated:
(1) (i)
at any time for any reason which would not constitute “Justifiable Cause” (as hereinafter
defined), upon 90 days’ prior written notice of termination from the Company to
Executive or (ii) at any time under circumstances constituting “Good Reason” (as such term is
hereinafter defined), upon 10 days’ prior written notice of termination from
Executive to the Company; or
(2) (i)
following the determination by the Board that there is Justifiable Cause for
such termination, upon 10 days’ prior written notice of termination from the
Company to Executive or (ii) at any time for any reason other than Good Reason,
upon 30 days’ prior written notice of termination from Executive to the Company;
or
(3) immediately
upon the death of Executive; or
(4) in
the event of the “Disability” (as hereinafter
defined) of Executive, upon 30 days’ prior written notice from the Company to
Executive.
As used
herein, the following capitalized terms shall have the following
meanings:
“Justifiable Cause” shall mean
and be limited to: (1) Executive’s conviction (which, through lapse of time or
otherwise, is not subject to appeal) of or pleading guilty to any crime (i)
involving theft, embezzlement or other misappropriation of money or other
property of the Company, its related entities or any other business enterprise;
(ii) involving moral turpitude;
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or (iii)
which constitutes a felony in the jurisdiction involved; (2) Executive’s
engagement in a fraudulent act to the material damage or prejudice of the
Company or its related entities or in conduct or activities materially damaging
to the property, business or reputation of the Company or its related entities
(including, without limitation, gross negligence in the performance of
Executive’s duties hereunder or any act which may expose the Company to
liability for violation of the civil rights of any other employee of the
Company), all as reasonably determined by the Board; (3) Executive’s
substantiated illegal use of controlled substances; (4) the entry of an order of
a court that remains in effect and is not discharged for a period of at least 60
days, which enjoins or otherwise limits or restricts the performance by
Executive under this Agreement, relating to any material contract, agreement or
commitment made by or applicable to Executive in favor of any former employer or
any other person; or (5) a breach by Executive of any of the material terms of
this Agreement, as reasonably determined by the Board.
“Good Reason” shall mean and
be limited to: (1) breach by the Company of any of the material terms of this
Agreement, which breach shall remain uncured 30 days after the Company's receipt
of a written notice from Executive specifying the nature of the breach; (2)
relocation of the Company’s principal executive officers to a location more than
50 miles from New York, New York; (3) a material diminution of Executive’s
duties and responsibilities hereunder, which diminution shall remain in effect
30 days after the Company’s receipt of a written notice from Executive
specifying the diminution to which he objects; or (4) a material diminution of
Executive’s entire compensation or employee benefits hereunder.
“Disability” shall have the
meaning assigned to such term in any long-term disability plan or program of the
Company in which Executive is entitled to participate; provided, however, that
in the absence of any such plan or program, “Disability” shall mean
Executive’s inability to substantially perform his duties hereunder by reason of
any medically determined physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for any
substantially continuous period of not less than six (6) months.
(b) Upon
any early termination of this Agreement, except as provided below, Executive
shall not be entitled to receive further compensation hereunder for any period
of time after such date. Notwithstanding the foregoing, if (i) this
Agreement is terminated in a “Severance Circumstance” (as
defined below) and (ii) Executive shall have executed a valid and comprehensive
release in the form prescribed by the Company of any and all claims Executive
may have against the Company and any of its related entities, except as set
forth in Section 7(c) hereof (the “Severance Release”), within ten days after
the Company provides the same for execution by Executive:
(1) Executive
shall be entitled to receive payments of Executive’s then annual salary, at the
rate then in effect pursuant to Section 3(a), for a period of one year after the
effective date of termination (the “Severance
Period”);
(2) The
Company shall continue to provide, at the Company’s expense, coverage under
plans or policies providing employee benefits as described in Section 5 hereof
(or comparable benefits) during the Severance Period;
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(3) Notwithstanding
anything to the contrary contained in the Company’s Series Fl Stock Option Plan
(the“F1 Plan”) or any
other stock option plan of the Company relating to options (“Fl Options”) to purchase
shares of the Company's Series Fl Preferred Stock, par value $.01 per share
(“Fl Preferred”), or in the Incentive
Stock Option Agreement made as of September 10, 2002 (the “2002 Fl Option Agreement”) or
any other stock option agreement relating to Fl Options, (A) Executive’s Fl
Options outstanding on the date of termination (including, without limitation,
his Fl Options to purchase 1,175,000 shares of F1 Preferred (the “2002 Fl Options”), pursuant
to the 2002 F1 Option Agreement and the F1 Plan) shall remain outstanding and
continue to vest, and shall otherwise be treated for purposes of the terms and
conditions thereof as if Executive remained in the employ of the Company,
through the second (2nd) anniversary of the date of such termination (the “Vesting Termination Date”),
and (B) the expiration date of the exercise period for all such Fl Options
(including, without limitation, the 2002 Fl Options) shall be the Vesting
Termination Date, and all such Fl Options which are vested shall be exercisable
on or prior to such date; and
(4) Notwithstanding
anything to the contrary contained in the Company’s Amended and Restated 1999
Stock Option Plan (the “Common
Plan”) or any other stock option plan of the Company relating to options
(“Common Options”) to purchase shares of
Common Stock of the Company (“Common Stock”), or in the Non-Qualified
Stock Option Agreement made as of December 21, 2004 (the “2004 Common Option
Agreement”) or any other stock
option agreement relating to Common Options, (A) Executive’s Common Options
outstanding on the date of termination (including, without limitation, his
Common Options to purchase 100,000 shares of Common Stock (the “2004 Common Options”) pursuant to the 2004
Common Option Agreement and the Common Plan) shall remain outstanding and
continue to vest, and shall otherwise be treated for purposes of the terms and
conditions thereof as if Executive remained in the employ of the Company through
the Vesting Termination Date, and (B) the expiration date of the exercise period
for all such Common Options (including, without limitation, the 2004 Common
Options) shall be the Vesting Termination Date, and all such Common Options
which are vested shall be exercisable on or prior to such date.”
The
Company shall take all actions necessary or advisable to give effect to this
Section 7(b). Such severance payments in clause (x) above shall be made in equal
installments throughout the Severance Period at the same times at which salary
payments are made to the Company’s employees generally.
As used
herein, the term “Severance
Circumstance” means the termination of this Agreement pursuant to Section
7(a)(1) hereof or the Company’s election not to renew this Agreement at the end
of its then current term pursuant to Section 2 hereof.
(c) Immediately
upon termination of this Agreement, at the election of the Company’s Chairman of
the Board, Executive shall cease all activities at or on behalf of the Company
and shall return to the Company all documents, records and files of the Company,
and the Company shall have no further obligations to Executive except for
payment of (w)
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Executive’s
annual salary earned through the termination date; (x) reimbursable expenses
incurred by Executive prior to the termination date; (y) any Bonus payable to
Executive in respect of any prior bonus period which remains unpaid; and (z) if
applicable, severance payments and other termination benefits set forth in
subsection (b) above. Notwithstanding the foregoing, the
indemnification provisions set forth in Section 8(a) hereof shall survive any
termination of this Agreement.
(d) In
the event of the termination or expiration of this Agreement for any reason, the
Company reserves the right, to the extent permitted by law and in addition to
any other remedy the Company may have, to deduct from any monies otherwise
payable to Executive the full amount of any debt Executive may owe to the
Company or any of its related entities at the time of or subsequent to the
termination or expiration of this Agreement. In the event that the
law of any state or other jurisdiction requires the consent of an employee for
such deductions, this Agreement shall serve as such consent.
8. REPRESENTATIONS
AND AGREEMENTS OF EXECUTIVE.
(a) Executive
represents and warrants to the Company that the execution, delivery and
performance by Executive of this Agreement will not result (with or without the
giving of notice or the lapse of time or both) in any conflict, violation,
breach or default on the part of Executive under any agreement or understanding,
whether written or oral, to which Executive is a party or by which he is
bound. Executive shall indemnify and hold harmless the Company from
and against any liabilities, claims, damages and expenses for any losses
resulting from any such conflict, violation, breach or default.
(b) Executive
agrees that he shall comply with any and all employee handbooks, policy manuals
and similar documents of the Company.
(c) Executive
agrees to submit to a medical examination and to cooperate and supply such other
information and documents as may be required by any insurance company in
connection with the Company’s obtaining any type of insurance or fringe benefit
as the Company shall determine from time to time to obtain.
9. NON-COMPETITION;
NON-SOLICITATION; ETC.
(a) In
consideration of the Company's award to Executive the 2004 Common Options on or
about the date of this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, Executive agrees that
during the “Non-Compete
Period” (as defined below), Executive shall not, directly or indirectly,
as owner, lender, partner, joint venturer, stockholder, employee, agent,
principal, trustee, officer, director, or in any capacity whatsoever, engage in,
become financially interested in, be employed by, or render any consultation or
business advice or other services with respect to (i) any business which
provides or offers products or services, in any geographic area in the United
States of America, which are competitive with any products or services of the
Company or any of its related entities in the following lines of business: (x)
healthcare disease management, (y) the line of business consisting of the suite
of services currently offered under the rubric of the Company’s “CareEngine”
registered trademark or (z) any other line of business in which
the
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Company
or any of its related entities is materially engaged during the period of
Employee’s employment hereunder or (ii) any business conducted under any
corporate or trade name utilized by the Company or any related entity without
the prior written consent of the Company; provided, however, that Executive may
own any securities of the Company or any of its related entities, and any
securities of any corporation which is engaged in such business and is publicly
owned and traded but in an amount not to exceed at any one time one percent (1%)
of any class of stock or securities of such publicly traded
corporation.
As used
herein, the term “Non-Compete
Period” shall mean the period during the term of this Agreement and a
further period of two (2) years following the expiration or termination of this
Agreement for any reason pursuant to Section 7(a) hereof, whether or not
Executive timely executes the Severance Release (if applicable) as called for by
Section 7(b) hereof; provided, in the case of a termination pursuant to Section
7(a)(1) hereof, the Non-Compete Period shall be deemed to cease if the Company
fails to pay when due any periodic installment of the severance obligation
pursuant to Section 7(b) hereof and such payment default shall remain uncured 10
days following the Company’s receipt of a written default notice from
Executive.”
(b) In
addition, Executive agrees that during the term hereof and for a period of two
(2) years thereafter he shall not, directly or indirectly: (i) request or cause
any suppliers or customers with whom the Company or any of its related entities
has a business relationship to cancel, terminate or diminish any such business
relationship with the Company or any of its related entities; (ii) solicit,
interfere with or entice or hire from the Company or any of its related entities
any employee of the Company or any of its related entities (or former employee
who had terminated his or her employment with the Company or any of its related
entities during the three-month period prior to the expiration or termination of
this Agreement); or (iii) in any communications with any customer, investor,
vendor, business partner or client of the Company or any of its related
entities, criticize, ridicule or make any statement which disparages or is
derogatory of the Company or any of its related entities or any of their
respective officers, directors, agents or employees.
(c) If
any portion of the restrictions set forth in this Section 9 should, for any
reason whatsoever, be declared invalid by a court of competent jurisdiction, the
validity or enforceability of the remainder of such restrictions shall not
thereby be adversely affected.
(d) Executive
acknowledges that the historical business operations of the Company and its
related entities have been conducted throughout the United States, that the
sales and marketing prospects of such organizations are for continued expansion
throughout the United States and that, therefore, the territorial and time
limitations set forth in this Section 9 are reasonable and properly required for
the adequate protection of the business of the Company and its related
entities. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction, Executive agrees
to the reduction of the territorial or time limitation to the area or period
which such court shall deem reasonable.
(e) Notwithstanding
anything herein to the contrary, this Section 9 shall automatically terminate
with respect to the Company or any of its related entities (x) upon the
dissolution of such entity or (y) if a court of competent jurisdiction shall
enter an order, judgment or decree approving a petition seeking liquidation of
such entity under Chapter 7 of the United
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States
Bankruptcy Code, or under comparable provisions of any state insolvency laws,
and such order, judgment, decree is not dismissed or vacated within a period of
sixty (60) consecutive days.
10. INTELLECTUAL
PROPERTY
(a) Executive
agrees that any innovations, improvements or business concepts that he may
develop or suggest during the term of this Agreement relating to the work or
projects carried on by Executive on behalf of the Company or any of its related
entities and any other results or proceeds of Executive’s employment by the
Company (collectively, the “Works and Intellectual Property”)
shall constitute works-made-for-hire and shall be the exclusive property
of the Company. Executive further agrees to make full disclosure
thereof to an authorized representative of the Company, and to no other person
without the consent of the Chairman of the Board of the Company and, to the
extent any of the Works and Intellectual Property do not legally constitute a
work-made-for-hire and/or there are any other rights with respect to the Works
and Intellectual Property that do not accrue to the Company pursuant to the
preceding sentence, Executive hereby irrevocably assigns and agrees to assign
without further compensation all such Works and Intellectual Property and all
rights thereto, domestic and foreign, to the Company. Executive
hereby agrees to execute all documents whatsoever that may be necessary to
transfer to and vest in the Company all right, title and interest in and to all
of the Works and Intellectual Property.
(b) All
documents, data, recordings or other property, whether tangible or intangible,
including all information stored in electronic form, obtained or prepared by or
for Executive and utilized by Executive in the course of Executive’s employment
hereunder shall remain the exclusive property of the Company.
11. NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION.
(a) Executive shall not, during the term of
this Agreement, or at any time thereafter, directly or indirectly,
disclose or permit to be known (other than (i) as required in the regular course of his duties, including
without limitation disclosures to the Company’s advisors and consultants, or (ii) as required by
law, in which case Executive shall give the Company prior written notice of such
required disclosure) to any person, firm or corporation any Confidential
Information acquired by him during the course of, or as an incident to, his
employment or the rendering of his advisory or consulting services hereunder,
relating to the Company or any of its related entities, the directors of the
Company or its related entities, any client of the Company or any of its related
entities, or any corporation, partnership or other entity owned or controlled,
directly or indirectly, by any of the foregoing, or in which any of the
foregoing has a beneficial interest, including, but not limited to, the business
affairs of each of the foregoing. Notwithstanding the foregoing, Executive may
disclose Confidential Information to his personal legal and financial advisors in the
course of obtaining their advice and counsel. Any breach by any of
such advisors of the terms of this Section 11 shall be deemed a breach by
Executive.
(b) The
term “Confidential Information”
shall mean all information and know-how (whether or not in writing) of a
confidential, secret, private or proprietary nature concerning the Company, any
of its related entities and their respective businesses and
affairs
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and shall
include, but shall not be limited to, proprietary technology, trade secrets,
patented processes, research and development data, know-how, market studies and
forecasts, competitive analyses, pricing policies, employee lists, personnel
policies, the substance of agreements with customers, suppliers and others,
marketing or dealership arrangements, servicing and training programs and
arrangements, customer lists and any other documents embodying such confidential
information. Notwithstanding anything to the contrary contained
herein, Confidential Information shall not include (i) any information which is
or becomes publicly available other than pursuant to a breach of Sections 11(a)
or 11(c) by Executive or (ii) information which is independently developed by
Executive after the expiration or termination of this Agreement without making
use of the Confidential Information.
(c) All
Confidential Information and documents and materials containing Confidential
Information of the Company or any of its related entities shall be the exclusive
property of the Company, and Executive shall use commercially reasonable best
efforts to prevent any publication or disclosure thereof. Upon
expiration or termination of this Agreement, all documents, records, reports,
writings and other similar documents containing Confidential Information,
including copies thereof, then in Executive’s possession or control shall be
returned to and left with the Company.
12. SPECIFIC
PERFORMANCE; RELEASE OF COMPANY OBLIGATIONS.
(a) Executive
agrees that if he breaches, or threatens to commit a breach of, any of the
provisions of Sections 9, 10 or 11 (the “Restrictive Covenants”), the Company shall have,
in addition to, and not in lieu of, any other rights and remedies available to
the Company under law and in equity, the right to injunctive relief and/or to
have the Restrictive Covenants specifically enforced by a court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company and its
related entities and that money damages would not provide an adequate remedy to
the Company.
(b) If
Executive breaches his obligations pursuant to the Restrictive Covenants, then
without limiting any other remedy that the Company may have at law, the Company
shall be released from any remaining obligation to Executive that it would
otherwise have thereafter.
13. AMENDMENT
OR ALTERATION. No amendment or alteration of the terms of this
Agreement shall be valid unless made in writing and signed by both of the
parties hereto.
14. GOVERNING
LAW; VENUE. This Agreement shall be governed by and construed in
accordance with the law of the State of New York applicable to agreements made
and to be performed therein, without giving effect to its principles of
conflicts of law. The parties hereto irrevocably and exclusively
submit to the jurisdiction of the courts of the state of New York and the
federal courts of the United States located in the Southern District of New
York, and any appellate court from any thereof, with respect to any suit, action
or proceeding pertaining to this Agreement.
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15. SEVERABILITY. The
holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and
effect.
16. NOTICES. Any
notices required or permitted to be given hereunder shall be sufficient if in
writing, and if delivered by hand or courier, or sent by certified mail, return
receipt requested, to the addresses set forth above or such other address as
either party may from time to time designate in writing to the other, and shall
be deemed given as of the date of the delivery or at the expiration of three
days in the event of a mailing.
17. WAIVER
OR BREACH. It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not operate, or be construed, as a waiver
of any other provision or of any subsequent breach by that same
party.
18. ENTIRE
AGREEMENT; SUPERSESSION; AMENDMENT; BINDING EFFECT. This Agreement
contains the entire agreement between the Company and its related entities, on
the one hand, and Executive, on the other hand, with respect to the subject
matter hereof and supersedes all prior agreements, both written and oral,
between the Company and its related entities, on the one hand, and Executive, on
the other hand, with respect to the subject matter hereof including, without
limitation, the Original Employment Agreement (except for Sections 13 and 14
thereof and the documents referenced therein, which shall remain in full force
and effect). This Agreement may be modified only by a written
instrument signed by each of the parties hereto. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, heirs, distributors, successors and assigns,
provided, however, that Executive shall not be entitled to assign or delegate
any of his rights or obligations hereunder without the prior written consent of
the Company.
19. WITHHOLDINGS. All
amounts paid to Executive under this Agreement shall be subject to customary
withholdings for income taxes, F.I.C.A. and similar charges.
20. SURVIVAL. Except
as otherwise expressly provided herein, the termination or the expiration of
this Agreement shall not affect the enforceability of Sections 7(b), 7(c), 7(d),
8(a) and (b), and 9 through 23 hereof.
21. FURTHER
ASSURANCES. The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
22. CONSTRUCTION
OF AGREEMENT. No provision of this Agreement or any related document
shall be construed against or interpreted to the disadvantage of any party
hereto by any court or other governmental or judicial authority by reason of
such party having or being deemed to have structured or drafted such
provision.
23. HEADINGS. The
Section headings appearing in this Agreement are for the purposes of easy
reference and shall not be considered a part of this Agreement or in any way
modify, demand or affect its provisions.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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ACTIVE
HEALTH MANAGEMENT, INC.
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Xxxxxx
X. Xxxxxx, Ph. D.
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Chairman
of the Board
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/s/ Xxxxx
Xxxxxxx
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Xxxxx
Xxxxxxx, M.D.
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