Executive Employment Agreement - Medical Advisory Systems Inc. and thomas M. Hall
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT is made effective as of the 1st day
of November, 1998, by and between MEDICAL ADVISORY SYSTEMS, INC., a Delaware
corporation, having its principal office at 8050 Southern Maryland Boulevard,
Owings, Maryland 20736 (the "Company") and THOMAS M. HALL, M.D., M.I.M., who
resides at the Maryland address on file with the Company (the "Executive").
EXPLANATORY STATEMENT
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The Company desires to employ the Executive as the Chief Executive
Officer and the Chief Physician of the Company, on the terms and conditions
herein set forth, and the Executive has agreed to accept employment with the
Company on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
promises made herein, the parties agree as follows:
1. Employment. The Company hereby employs the Executive as the Chief
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Executive Officer and the Chief Physician and agrees to continue the Executive
in that position (or in any other position approved by the Executive) during the
term of this Agreement.
2. Term. This Agreement shall begin November 1, 1998 and shall
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continue until October 31, 2001. Thereafter, this Agreement shall renew
automatically from Employment Year to Employment Year, subject to the right of
either party to terminate this Agreement as of the end of an Employment Year
subsequent to the 2001 Employment Year, upon one hundred eighty (180) days'
prior written notice to the other party. An "Employment Year" begins November 1
and ends the following October 31.
3. Salary. The Executive's salary for the 1999-2001 Employment Years
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under this Agreement shall be at the rate of $260,000.00 per annum. The
Executive's salary shall be paid in bi-weekly payments in accordance with the
Company's policies in effect from time to time. Thereafter, the Executive's
salary for each Employment Year shall be determined pursuant to the discretion
of the Company's Board of Directors, but shall not be less than $260,000 per
annum. There shall be deducted from the actual annual compensation paid to the
Executive such sums as may be required to be deducted or withheld under the
provisions of law, such as Social Security payments, income tax withholdings and
any other deductions required by law now in effect or hereafter put into effect
during the life of this Agreement.
4. Bonuses. In addition to his salary, the Executive shall be
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eligible for a bonus for an Employment Year which is deemed appropriate by the
Board of Directors of the Company.
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5. Duties.
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A. During the term of this Agreement, the Executive shall serve
as the Chief Executive Officer and the Chief Physician of the Company. He shall
have such powers and shall perform such duties as are incident and customary to
his office, and shall have such other powers and shall perform such other duties
as from time to time shall be granted and assigned to him by the Board of
Directors of the Company. As the Chief Physician of the Company, the Executive
shall hire or cause to be hired all medical personnel employed by the Company
and all other personnel utilized in the Company's medical information, advice
and training operations. As the Chief Executive Officer of the Company, the
Executive may also serve as a member of the Board of Directors of the Company.
B. The Executive shall devote appropriate attention, skill, and
energy to the performance of his duties under this Agreement, and shall comply
with all reasonable professional requests of the Board of Directors; provided,
however, that the Executive will be permitted to engage in and manage personal
investments and to participate in community and charitable affairs, so long as
such activities do not interfere with his duties under this Agreement.
C. The Executive shall immediately notify the Company of (i) his
own illness and consequent inability to work, or (ii) any intended significant
change in his plans to work for the Company.
D. During the term of this Agreement, the Executive may serve in
any additional offices or positions of the Company (including as a member of the
Company's Board of Directors and any committees thereof) to which he may be
elected or appointed by appropriate action of the Company. The Executive's
service in any such additional capacities shall be without separate
compensation, unless otherwise authorized by the Board.
6. Vacation and Sick Leave.
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A. The Executive shall be entitled to a total of five (5) weeks
of vacation each Employment Year. Unused vacation time may be accumulated only
through the following Employment Year. The Executive may take his vacation at
such time or times as shall not interfere with the performance of his duties
under this Agreement. Upon termination of employment, the Executive will be
compensated for unused vacation leave.
B. The Executive shall be entitled to paid sick leave and
holidays in accordance with the Company's announced policy for executive
employees, as in effect from time to time. Unused sick time shall not accumulate
from year to year. Upon termination of employment, the Executive will not be
compensated for unused sick leave.
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7. Expenses.
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A. The Company shall reimburse the Executive for all expenses
incurred in connection with his duties on behalf of the Company, provided that
the Executive shall keep, and present to the Company, records and receipts
relating to reimbursable expenses incurred by him. Such records and receipts
shall be maintained and presented in a format, and with such regularity, as the
Company reasonably may require in order to substantiate the Company's right to
claim income tax deductions for such expenses. Without limiting the generality
of the foregoing, the Executive shall be entitled to reimbursement for any
business-related travel, business-related entertainment whether at his residence
or otherwise, and other costs and expenses reasonably incident to the
performance of his duties on behalf of the Company.
B. The Executive has supplied his own desk (the "Desk") and
certain artwork, books and diplomas (the "Artwork") for use in his office at the
Company's headquarters in Owings, Maryland, which items remain the property of
the Executive. Upon termination of employment, the Executive may remove the Desk
and Artwork and transport them to his home or another office. In such case,
Executive is entitled to reimbursement for the costs of packing the Desk and
Artwork and transporting them anywhere within a 150-mile radius of the Owings
office.
8. Fringe Benefits. During the term of this Agreement, the Executive
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shall be entitled to participate in any and all fringe benefit plans, programs
and practices sponsored by the Company for the benefit of its executive
employees, and shall be furnished with other services and perquisites
appropriate to his position. Without limiting the generality of the foregoing,
the Executive shall be entitled to the following benefits (regardless of whether
such benefits are provided to other executives):
A. Comprehensive medical insurance for the Executive, his
spouse, and his dependent children with no deductibles or co-insurance.
B. Dental insurance for the Executive, his spouse, and his
dependent children with no deductibles or co-insurance.
C. Payment of customary and reasonable professional liability
costs and expenses, including maintenance of a professional liability insurance
policy with minimum limits of $2 million per incident / $4 million aggregate
during the term of employment, and payment of any premiums to maintain a minimum
of 7 years of "tail" coverage following termination of the policy or of
employment for any reason.
D. Participation in Company profit sharing, stock option,
bonus, incentive and performance award programs.
E. Use of a Company automobile comparable to the automobile
presently used by the Executive. Such automobile shall be maintained by the
Executive at all times in clean
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and good mechanical order, at the expense of the Company. At the end of the term
of employment hereunder, Executive shall have the option to purchase such
automobile from the Company at a price equal to the residual value on the lease
of such automobile or the then "Blue Book" wholesale value of such automobile,
whichever price is lesser.
F. Use of a Company desk-top computer, fax machine and printer
(the "Computer") comparable to the Computer presently used by the Executive. At
the end of the term of employment hereunder, Executive shall have the option to
purchase such Computer from the Company at a price equal to the fair market
value of the Computer, as determined by the company's IT department or other
mutually-agreed upon appraisal source.
G. Annual physical examinations paid by the Company.
H. Payment of miscellaneous continuing medical education
expenses, including, two (2) conferences per year and various professional
journals, newspapers and newsletters to which the Executive currently
subscribes.
I. Payment of medical licensing fees required by the State of
Maryland and the District of Columbia.
J. Payment of customary and reasonable cellular phone and pager
expenses utilized in connection with carrying out Executive's duties hereunder.
K. Payment of membership fees for the following medical
societies: ASLAMS and ACOM.
L. Gifts: Plaques, citations, mementos, frequent traveler
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awards and unsolicited promotional gifts provided by the Company's vendors in
the name of the Executive remain the property of the Executive at all times.
9. Disability.
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A. As used in this Agreement, the term "Disability" shall mean
the continuous and uninterrupted inability to perform the Executive's duties on
behalf of the Company, by reason of accident, illness, or disease, and the
"Onset" of a Disability shall mean the first day of such inability to perform
his duties.
B. If the Executive is disabled, he shall be entitled to
receive the salary to which he otherwise would have been entitled, were he not
disabled, for a period of nine (9) months from the Onset of his Disability.
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C. If the Executive remains disabled throughout the nine (9)
month period beginning with the Onset of his Disability, then his employment
shall terminate, and he will be entitled to Termination Benefits in accordance
with Paragraph 10.
10. Termination Benefits.
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A. If the Executive's employment terminates for any reason
(including death, Disability, and voluntary or involuntary resignation) other
than (i) termination "For Cause" under Paragraph 11, or (ii) in connection with
a Change in Control, as described in Subparagraph B hereof, the Executive (or,
in the event of his death, the Executive's estate) shall be entitled to receive
from the Company a Termination Benefit equal to 100% of the Executive's annual
salary as in effect on the date of his termination of employment. The
Termination Benefit will be payable in six (6) monthly installments on the first
day of each month for the six (6) months immediately following the month in
which the Executive's employment terminates. The Termination Benefit to be paid
to the Executive under this Paragraph A shall be in addition to any payments
received by the Executive during the nine (9) month period preceding the
Executive's termination of employment as Disability payments under Paragraph
9.B.
B. In the event the Executive is terminated or the Executive
resigns at any time during the term hereof, and such termination or resignation
is within one (1) year following a "Change in Control" (as defined below), the
Corporation shall, within fifteen (15) days of such termination, pay Executive a
lump sum cash payment equal to the sum of:
(i) the greater of a.) his total cash compensation for the
remainder of the term of this Agreement at the rate and as
required by Paragraph 3 of this Agreement, together with the
monetary value of all accrued, unused vacation time, or b.)
$260,000 ; and
(ii) in addition to the benefits provided under any pension
benefit plan and any supplemental pension plan maintained by
the Corporation to which the Executive is entitled, which
benefits will be paid as provided under such pension benefit
plan and supplemental pension plan, an amount equal to the
value of the pension benefits he would have accrued under
such pension benefit plan and supplemental pension plan if he
had remained in the employ of the Corporation for the 90 days
following the date of termination, and
(iii) an amount equal to the value of incentive compensation under
the plans and policies then in effect (including, but not
limited to the right to participate in all of the
Corporation's profit sharing plans and to receive and
exercise stock options and stock appreciation rights and/or
sell such options to the Corporation at the then market price
and to receive bonuses and performance awards and similar
incentive compensation benefits) to which he would have been
entitled under this Agreement if he had remained in the
employ of the Corporation for the 90 days following the date
of termination, and
(iv) an amount equal to the value of the employee benefits, as set
forth in Paragraph 8 hereof, to which he would have been
entitled under this
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Agreement if he had remained in the employ of the Corporation
for the remainder of the term as set forth in Paragraph 2
hereof.
(v) reimbursement for the cost of packing and transporting the
Executive's Desk and Artwork as detailed in Paragraph 7.
For purposes of this Agreement, the term "Change in Control" shall
mean that:
(i) a successful initial public offering of equity securities of
the Corporation (the "IPO") has been completed and funded; or
(ii) after an IPO has been completed and funded (I) any "person"
(as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934) is or becomes the beneficial
owner, directly or indirectly, of securities of the
Corporation representing thirty percent (30%) or more of the
combined voting power of the then outstanding securities of
the Corporation; or (II) a change in the composition of a
majority of the Board of Directors within twelve (12) months
after any "person" (as defined above) is or becomes the
beneficial owner, directly or indirectly, of securities of
the Corporation representing twenty percent (20%) of the
combined voting power of the then outstanding securities of
the Corporation; or (III) a change of control of a nature
that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 as in effect on the date of
this Agreement; or
(iii) there shall be consummated (I) any consolidation or merger or
share exchange of the Corporation in which the Corporation is
not the continuing or surviving corporation or pursuant to
which shares of the Corporation's common stock would be
converted into cash, securities or other property, other than
a merger of the Corporation in which the holders of the
Corporation's common stock immediately prior to the merger
have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (II)
any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or a
substantial portion, of the assets of the Corporation; or
(iv) the stockholders of the Corporation approve a plan or
proposal for the complete or partial liquidation, dissolution
or divisive reorganization of the Corporation.
For purposes of this subparagraph, the term "person" shall not be deemed to
include any officer or director of the Corporation as of the date hereof or any
such person's transferee if such transferee is related to such person by blood
or marriage, or is affiliated with or controlled by such person.
C. In the event the Employment Agreement terminates upon
the normal expiration of the Employment Period or any renewal thereof, the
Corporation shall not be obligated to pay the Executive any further cash
compensation; provided, however, the Corporation shall during the eighteen (18)
month period following such expiration date continue to maintain in force at all
times Executive's health, professional liability, disability and life insurance
policies which were in effect on the date of expiration provided the carrier of
such policies allows such coverage at the time of such termination.
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11. Termination of Employment for Cause. Notwithstanding the
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provisions of Paragraph 2 of this Agreement, the Executive's employment (and all
of his rights and benefits under this Agreement) shall terminate immediately and
without further notice upon the happening of any one or more of the following
events:
A. The Executive is convicted of a criminal offense involving
moral turpitude;
B. The Executive persists, for a period of thirty (30) days
after written notice from the Company, in a course of conduct determined by the
Board of Directors of the Company to be in violation of his duties to the
Company under this Agreement;
C. The Executive has been guilty of criminal or dishonest
conduct pertaining to the business or affairs of the Company, or is guilty of
any act or omission the intended or likely consequence of which is material
injury to the Company's business, property or reputation.
12. Non-Competition.
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A. The Executive agrees that, during the term of his employment
with the Company, and for a period of two (2) years after the termination of his
employment for any reason whatsoever, he shall not, directly or indirectly,
whether as an employee, employer, consultant, agent, principal, partner, owner,
shareholder (other than as a shareholder of less than 5% of a class of publicly
traded securities), officer, or director, or in any other individual or
representative capacity, compete with or engage in any "business" (as defined
below) that is competitive with the Company; solicit or accept any business or
employment from any entity that is, or at any time within the preceding two
years was, or was solicited to become, a customer of the Company; recruit for a
competitor of the Company, employ, discuss employment by a competitor with, or
assist a competitor in employing, any person who is, or at any time within one
year was, an employee of the Company; interfere with, disrupt or attempt to
disrupt any relationship, contractual or otherwise, between the Company and any
customer, client, supplier, consultant or employee of the Company; or solicit,
for the Employee's own account or for the account of any other person , orders
for services or products sold by the Company during the Employee's association
with the Company. For purposes hereof, the "business" of the Company shall mean
the provision of medical assistance products and services in the United States
of America, including (i) 24-hour-a-day medical information to the public via
the Internet under an exclusive contract with America's Doctor, Inc., which
provides real-time live on-line chats between physicians and Internet users,
(ii) 24-hour-a-day medical information to individuals, groups and associations
via 800/900 telephone numbers, (iii) ) 24-hour-a-day medical advice to ships at
sea through a worldwide telecommunications system, and ancillary services
including training programs, medical records maintenance and medical cost
containment services, (iv) ) 24-hour-a-day call center services and assistance
to HMOs, multi-national corporations and the international travel industry, and
(v) customized pharmaceutical and medical supply kits which are sold to the
maritime and aviation industries.
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B. The Executive expressly acknowledges and agrees (i) that the
restrictions set forth herein are reasonable, in terms of scope, duration,
geographic area, and otherwise, (ii) that the protections afforded to the
Company hereunder are necessary to protect its legitimate business interests,
and (iii) that the agreement to observe such restrictions form a material part
of the consideration for this Agreement and the Executive's employment by the
Company.
C. Notwithstanding the above, nothing construed herein shall
prohibit or impede the Executive from (i) owning, operating and maintaining
control of TLC, Inc., and (ii) continuing to practice medicine and providing
direct patient care, similar to that which the Executive presently provides in
the Company's outpatient clinic, and maintaining the records of such patients.
13. Confidential Information. The Executive agrees that, during the
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term of his employment with the Company, and for a period of two (2) years after
the termination of his employment for any reason whatsoever, he shall not
disclose to any person, other than in the discharge of his duties under this
Agreement, any information or knowledge relating to (i) the business, operations
or internal structure of the Company, (ii) the clients (or customers) or
potential clients (or potential customers) of the Company, (iii) any method
and/or procedure (such as records, programs, systems, correspondence, or other
documents), relating or pertaining to projects developed by the Company or
contemplated to be developed by the Company, or (iv) the Company's business,
which information or knowledge the Executive shall have obtained during the term
of this Agreement, and which is otherwise of a secret or confidential nature.
Further, upon leaving the employ of the Company for any reason whatsoever, the
Executive shall not take with him, without prior written consent of the Board of
Directors of the Company, any documents, forms, or other reproductions of any
data or any information relating to or pertaining to the Company, any of the
clients (or customers) or potential clients (or potential customers) of the
Company or any other confidential information or trade secrets.
14. Other Agreements. Any earlier employment agreements between the
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Executive and the Company are hereby terminated and shall be of no further
effect after the effective date hereof.
15. Miscellaneous.
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A. Any notices required by this Agreement shall (i) be made in
writing and mailed by certified mail, return receipt requested, with adequate
postage prepaid; (ii) be deemed given when so mailed; (iii) be deemed received
by the addressee within ten (10) days after given or when the certified mail
receipt for such mail is executed, whichever is earlier; and (iv) in the case of
the Company, be mailed to its principal office, or in the case of the Executive,
be mailed to the last address that the Executive has given to the Company.
B. This Agreement shall be binding upon and inure to the
benefit of, the parties, their successors, assigns, personal representatives,
distributees, heirs, and legatees.
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C. If any dispute arises under this Agreement, such dispute
shall be resolved in accordance with arbitration conducted in accordance with
the Maryland Uniform Arbitration Act.
D. If any term or provision of this Agreement is held to be
illegal or invalid, said illegality or invalidity shall not affect the remaining
terms or provisions hereof, and each term and provision of this Agreement shall
be enforced to the fullest extent permitted by law.
E. As monetary damages may not be an adequate remedy for the
breach by either party of its obligations under this Agreement, each party
agrees that it may be subjected to a decree of specific performance, injunction,
or other appropriate equitable or legal relief, for the enforcement of its
obligations hereunder.
F. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maryland.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, under seal, as of the day and year first hereinabove written.
WITNESS: MEDICAL ADVISORY SYSTEMS, INC.,
A Delaware corporation
_____________________________ By: /s/ Ronald W. Pickett (SEAL)
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Name: Ronald W. Pickett
Title: President
WITNESS:
_____________________________ /s/ Thomas M. Hall, M.D., M.I.M. (SEAL)
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Thomas M. Hall, M.D., M.I.M.
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