Executive Employment Agreement - Medix Resources Inc. and Brian R. Ellacott
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, dated as of February 11, 2000, (the
"Agreement") by and between Medix Resources, Inc., a Colorado corporation with
its principal offices located at Suite 301, 7100 E. Belleview Ave, Englewood,
Colorado. ("the Company") and Brian R. Ellacott (the "Executive").
NOW THEREFORE, in consideration of the foregoing premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. Employment. The Company agrees to employ the Executive and the
Executive agrees to serve the Company as its Senior Vice President, Business
Development.
2. Responsibilities and Supervision. The Executive shall devote all of his
business time and attention to the affairs of the Company and its affiliated
companies. The Executive shall be responsible for the identification and closing
of sales to Medix target markets, the negotiations of any such transactions that
may be authorized by the Company's Chief Executive Officer or Executive Vice
President of Development, and such other projects that may be assigned to the
Executive by the Company's Chief Executive Officer or the Company's Board of
Directors, in each case subject to the general direction, approval and
supervision of the Company's Chief Executive Officer and Board of Directors, and
to the restrictions, limitations and guidelines set forth by the Board of
Directors in resolutions adopted in the minutes of the Board of Directors
meetings, copies of which shall be provided to the Executive from time to time.
In the performance of his duties, the Executive shall maintain an office in
Atlanta, GA. The terms "affiliate of" a company or "affiliated company" as used
herein means any company directly or indirectly controlling, controlled by or
under common control with the other company. A presumption of control shall
exist for any person owning or controlling 10% or more of the outstanding voting
securities of a company, and any officer, director or general partner of a
company.
3. Term of Employment. The period of the Executive's
employment under this Agreement shall be for a two-year period ending March 1,
2002, subject tothe termination provisions set forth in Paragraphs 10, 11,
and 12 hereunder.
4. Duties. During the period of his employment hereunder and except for
illness,specified vacation periods and reasonable leaves of absence, the
Executive shall devote his best efforts and all his business time, attention and
skill to the business and affairs of the Company and its affiliated companies,
as such business and affairs now exist and as they may be hereinafter changed or
added to, provided, however, that, with approval of the Board of Directors of
the Company, the Executive may serve, on the board of directors of, or hold any
other offices or positions in, companies or organizations which, in such Board's
judgment, will not present any conflict of interest with the Company or any of
its subsidiaries or affiliates or divisions, or materially affect the
performance of Executive's duties pursuant to this Agreement; and further
provided that the outside business is not a "Business Opportunity" of the
Company, as defined herein. A Business Opportunity of the Company shall be a
product, service, investment, venture or other opportunity, which is either:
(a) Directly related to or within the scope of the existing business of the
Company; or
(b) Within the logical scope of the business of the Company, as such scope may
be expanded or altered from time-to-time by the Board of Directors.
5. Compensation. The Company shall pay to the Executive as compensation for
his services, the base salary of $150,000 per year or such higher salary as from
time-to-time may be approved by the Board of Directors, payable bi-monthly in
accordance with the Company's normal payroll procedures. As additional
compensation hereunder, upon the execution of this Agreement, the Company will
grant to the Executive 150,000 options to purchase common stock of the Company
under the Company's 1999 Stock Option Plan, at an exercise price of $ 3.97 (the
closing price reported on OTCBB for February 11, 2000), subject to board
ratification and approval. Such options are intended to be classified as
incentive stock options for tax purposes, and shall vest and expire as provided
on Exhibit A attached hereto. Terms of the Stock Option grant will be set forth
in a Stock Option Agreement in the form used pursuant to such Plan.
6. Expense Reimbursement. The Company will reimburse the Executive for all
reasonable and necessary expenses incurred by him in carrying out his duties
under this Agreement, including entertainment, travel and lodging costs. The
Executive shall present to the Chief Executive Officer each month an itemized
account of such expenses in such form as is required by the Company's accounting
policies.
7. Medical Coverage and Other Employee Benefits. The Executive will be
eligible to participate in the Company's current standard benefits package,
which provides health insurance with limited Company payments, limited sick time
accrual, paid holidays, 401(k) Plan participation when eligible and term life
insurance at Executive's cost, on the same basis as other Executives of the
Company.
8. Vacation Time. The Executive shall be entitled to take four (4) weeks
paid vacation per calendar year, which, however shall vest at the rate of
one (1) week per full calendar quarter worked hereunder. Such vacation may
not be taken in any greater than consecutive two (2) week increments.
Vacation time not used by the Executive during the calendar year will be
forfeited. Compensation for annual vacation time vested but not taken by
Executive shall be paid to the Executive at the date of termination.
9. Obligations of Executive During and After Employment.
(a) The Executive agrees that during the terms of his
employment under this Agreement or while receiving compensation under this
Agreement, he will engage in no other business activities directly or
indirectly, which are or may be competitive with or which might place him in a
competing position to that of the Company, or any affiliated company.
(b) The Executive realizes that during the course of his employment,
Executive will have produced and/or have access to confidential business plans,
information, business opportunity records, notebooks, data, formula,
specifications, trade secrets, customer lists, account lists and secret
inventions and processes of the Company and its affiliated companies. Therefore,
during his employment by the Company or by an affiliated company or while
receiving compensation under this Agreement, the Executive agrees to hold in
confidence and not to directly or indirectly disclose or use or copy or make
lists of any such information, except to the extent authorized by the Chief
Executive Officer of the Company in writing. All records, files, business plans,
documents, equipment and the like, or copies thereof, including copies on
Company computers, relating to Company's business, or the business of an
affiliated company, which Executive shall prepare, or use, or come into contact
with, shall remain the sole property of the Company, or of an affiliated
company, and shall not be removed from the Company's or the affiliated company's
premises without the written consent of the Chief Executive Officer, and shall
be promptly returned to the Company upon termination of employment with the
Company and its affiliated companies. The Executive further agrees that after
the term of his employment, he will not disclose or make use of any proprietary
information owned by the Company or necessary in the operation of the Company's
products or products under development.
(c) Because of his employment by the Company, Executive will have
access to trade secrets and confidential information about the Company, its
business plan, its business opportunities, and its expansion plans into other
geographical areas and its methods of doing business. Executive agrees that for
a period of one (1) year after termination of his employment, he will not,
directly or indirectly compete with the Company in a business that is a
"Business Opportunity" of the Company or defined in Section 4 above.
(d) In the event a court of competent jurisdiction finds any provision
of this Section 9 to be so over broad as to be unenforceable, then such
provision shall be reduced in scope by the court, but only to the extent
deemed necessary by the court to render the provision reasonable and
enforceable, it being the Executive's intention to provide the Company with
the broadest protection possible against harmful competition.
(e) Irreparable harm should be presumed if any provision of this Section
9 isbreached in any way. Damages would be difficult if not impossible to
ascertain, and the faithful observance of all terms of such Section is an
essential condition of employment with the Company. In light of these
considerations, Executive acknowledges that a court of competent jurisdiction
should immediately enjoin any breach of this Agreement by Executive, upon the
Company's request and the Company is released from the requirement of posting
any bond in connection with temporary or interlocutory injunctive relief,
to the extent permitted by law. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedy available to the Company
for such breach or threatened breach including, but not limited to, the
recovery of damages from the Executive.
10. Termination by the Company.
(a) Termination for Cause by the Company. Notwithstanding anything
herein to the contrary, the Company may, without liability, terminate the
Executive's employment hereunder for cause upon five days written notice,
and thereafter the Company's obligations hereunder shall cease and terminate.
Grounds for termination "for cause" shall be one or more of the following:
(1) A willful breach of duty by the Executive during the course of
his employment;
(2) The conviction of the Executive of a felony;
(3) Habitual neglect of duty by the Executive;
(b) Termination Without Cause by the Company. The Company may terminate
the employment of the Executive upon thirty (30) days written notice without
cause. In the event of termination without cause, the Company will pay the
Executive six (6) months salary as compensation. In addition, at least three
months prior to the expiration of this contract, the Company will either notify
the Executive in writing that the contract will not be renewed or will commence
good faith negotiation to enter into a new or modified contract. However,
failure to renew the Executive's contract shall not be deemed to be "termination
without cause" hereunder.
11. Termination by the Executive. The Executive, with or without cause, may
terminate this Agreement upon 90 days' written notice to the Company. In
such event, the Executive shall be required to render the services required
under this Agreement during such 90-day period, unless otherwise directed
by the Board of Directors. Executive will be compensated only through the
final day of his employment.
12. Termination Upon Death of Executive. In addition to any other
provision relating to termination, this Agreement shall terminate upon the
Executive's death. Upon Executive's death, the Company shall pay in a lump sum,
within 45 days of the Executive's death, to such person as the Executive shall
have designated to the Company as his beneficiary, or, if no such person is
designated, to the Executive's estate, an amount equal to all of the Executive's
accrued but unpaid base salary, the value on the Company's books of any vested
but unused vacation time and accrued sick time, and all unpaid expense
reimbursements at the time of Executive's death.
13. Indemnification. The Company shall indemnify and hold harmless
Executive to the fullest extent and in the manner permitted by the provisions of
the Colorado Business Corporation Act, as it may be amended from time to time.
To the extent that any of the Company's officers or directors are covered by or
benefit from one or more director's and officer's liability insurance policies,
the Executive shall also be covered by or benefit from such policy or policies.
14. Arbitration. Any controversy, dispute or claim arising out of, or
relating to this Agreement and/or its interpretation shall, unless resolved by
agreement of the parties, be settled by binding arbitration in Denver, Colorado
in accordance with the Rules of the American Arbitration Association for
employment disputes then existing. This Agreement to arbitrate shall be
specifically enforceable under the prevailing arbitration laws of the State of
Colorado. The award rendered by the arbitrators shall be final and judgment may
be entered upon the award in any court of the State of Colorado having
jurisdiction of the matter. If any legal proceeding and/or arbitration is
brought to enforce or interpret the terms of this Agreement, each party shall
bear its own attorney's fees, costs, and necessary disbursements in such legal
proceeding and/or arbitration except as otherwise provided herein.
15. General Provisions.
(a) The Executive's rights and obligations under this Agreement shall
not be transferable by assignment or otherwise, nor shall Executive's rights be
subject to encumbrance or to the claims of the Company's creditors. Nothing in
this Agreement shall prevent the consolidation of the Company, with or its
merger into, any other corporation, or the sale by the Company of all or
substantially all of its property or assets. However, the rights of the
Executive hereunder shall be enforceable against any successor to the Company,
and the rights of the Company hereunder shall benefit any successor to the
Company.
(b) This Agreement and the rights of Executive with respect to the
obligations and benefits of employment recited in this Agreement, constitute the
entire Agreement between the parties hereto in respect of the employment of the
Executive by the Company and supersede any and all other agreements either oral
or in writing between the parties hereto with respect to the employment of the
Executive.
(c) The provisions of this Agreement shall be regarded as divisible,
and if any of said provisions or any part thereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts thereof and the
applicability thereof shall not be affected thereby.
(d) This Agreement may not be amended or modified except by a written
instrument executed by Company and Executive.
(e) This Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of Colorado,
excluding however, the provisions governing conflicts of laws.
16. Construction. Throughout this Agreement, the singular shall
include the plural, and the plural shall include the singular, and the masculine
and neuter shall include the feminine, wherever the context so requires.
17. Text to Control. The headings of paragraphs and sections are
included solely for convenience of reference. If any conflict between any
heading and the text of this Agreement exists, the text shall control.
18. Authority. The officer executing this Agreement on
behalf of the Company has been empowered and directed to do so by the
Board of Directors of the Company.
IN WITNESS WHEREOF, the Company and the Executive hereby execute this
Agreement, as of the date first above written, with the full intention to be
mutually bound by the terms hereof.
FOR THE COMPANY:
MEDIX RESOURCES, INC.
By: /s/ John R. Prufeta
-----------------------
John R. Prufeta
President and Chief Executive Officer
THE EXECUTIVE:
By: /s/ Brian Ellacott
----------------------
Brian Ellacott
EXHIBIT A
VESTING SCHEDULE FOR OPTIONS
Options covering 150,000 shares of the Company common stock shall be granted to
Executive upon the execution of this Employment Agreement, which shall vest as
follows: options covering 50,000 shares will vest immediately and options
covering 12,500 shares shall vest on the same date of each third month from the
prior vesting date, until all options have vested, so long as Executive is still
employed by the Company on each of those vesting dates. In no case shall
Executive transfer or dispose of any option (other than by exercise) or the
underlying common stock granted hereunder for a period of six months plus one
day from the date of this Agreement. The expiration date of all of the options
granted hereunder shall be the earlier of five years from the date of this
Agreement or 90 days after the Executive leaves the employment of the Company.