Employment Agreement - Medix Resources Inc. and James Q. Gamble
Employment Agreement
Employment Agreement Dated As Of December 9, 2002 (This "Agreement"),
Between Medix Resources, Inc., A Colorado Corporation (The "Company"), And James
Q. Gamble (The "Executive").
Recitals
Whereas, The Company Desires To Employ The Executive And The Executive
Desires To Accept Such Employment By The Company On The Terms And Subject To The
Conditions Hereinafter Set Forth.
Now, Therefore, In Consideration Of The Mutual Covenants And Obligations
Hereinafter Set Forth, The Parties Hereto Agree As Follows:
1. Employment. The Company Hereby Employs The Executive As Its Chief Operating
Officer And An Executive Vice President, And The Executive Hereby Accepts
Such Employment By The Company, Upon The Terms And Conditions Hereinafter
Set Forth. The Executive Shall Perform Such Services As The Chief Executive
Officer Of The Company, The Board Of Directors Of The Company (The "Medix
Board") Or Such Other Person(S) As The Medix Board May Designate
(Collectively, The "Supervising Persons"), Shall In Good Faith Direct.
2. Term. Subject To The Provisions For Earlier Termination Provided In This
Agreement, The Term Of Executive's Employment Shall Initially Be For A One
(1) Year Period Commencing On The Date Hereof (The "Effective Date"), And
Ending On The First Anniversary Of The Effective Date (The "Initial Term").
Unless Either Party, Upon Not Less Than 60 Days' Prior Written Notice
Before The End Of The Initial Term, Elects Not To Renew This Agreement,
Executive's Employment Under This Agreement Shall Continue On The Same
Terms And Conditions As Set Forth Herein Except For The One (1) Year Term.
Such 60 Days' Notice Shall Not Be Required With Respect To Any Termination
Pursuant To Sections 6, 7, 8 Or 9 Below And An Election Not To Renew
Pursuant To This Section 2 Shall Not Constitute A Termination Without Cause
For Purposes Of Section 8 And Section 10(B). Such Additional Period Of
Employment Is Referred To Herein As The "Additional Term" And, Together
With The Initial Term, As The "Employment Period."
3. Duties.
(A) The Executive Shall Be Employed As The Chief Operating Officer And An
Executive Vice President Of The Company. Such Title May Be Changed By
The Company, So Long As The Executive Maintains The Substantially
Similar Level Of Authority And Responsibility. The Executive Shall
Serve Under And Report To The Supervising Persons. The Company, And
Each Of Their Direct Or Indirect Subsidiaries, Divisions,
Partnerships, Limited Liability Companies, Joint Ventures And
Affiliates Are Hereinafter Referred To Collectively As The "Group."
(B) Executive Shall Perform For The Company The Services Normally Rendered
By A Similarly Situated Executive, As Well As Such Other Services And
Duties Commensurate With The Executive's Position With The Company As
The Supervising Persons May Direct. The Executive Shall Abide By The
Company's And The Group's Policies, Standards, Rules And Regulations
(Including Without Limitation Any Ethical Rules Or Standards) As In
Effect From Time To Time, And Shall In All Respects Use His Best
Efforts To Conform To And Comply With The Lawful Directions And
Instructions Given To The Executive By The Supervising Persons.
(C) The Executive Shall (I) Use His Best Efforts To Perform The
Executive's Duties With Efficiency, Diligence, Care And
Conscientiousness; (Ii) Provide To The Supervising Persons Such
Information Regarding The Company's Business And Operations As Any Of
Them Shall Require; And (Iii) At All Times Act Consistently With The
Executive's Duties And Obligations To The Company And Use The
Executive's Best Efforts To Promote And Serve The Interests Of The
Company And The Group.
4. Time To Be Devoted To Employment. During The Employment Period, The
Executive Shall Devote Executive's Full Business Time, Attention And
Energies To The Business Of The Company And The Group And Shall Not Engage
In Any Other Business, Whether Or Not Such Activity Is Pursued For Gain,
Profit Or Other Pecuniary Advantage; Provided, However, The Executive May
Own Up To 1% Of The Capital Stock Of Any Entity That Is Publicly-Traded On
A U.S. National Stock Exchange Or Quotation System, So Long As Executive
Does Not Control, Directly Or Indirectly, Through One Or More Entities Or
Groups (Whether Formal Or Informal), The Voting Or Disposition Of Greater
Than 1% Of The Aggregate Beneficial Ownership Interest Of Any Such Entity.
5. Compensation; Benefits And Reimbursement.
(A) The Company Shall Pay, Or Cause To Be Paid, To The Executive A Base
Salary (The "Base Salary") At A Rate Of $175,000 Per Annum Which Shall
Be Payable In Accordance With The Customary Payroll Practices Of The
Company.
(B) During The Employment Period, The Executive Shall Be Entitled To The
Following:
(I) Participation, Upon Satisfaction Of Any Applicable Eligibility
Requirements, In The Company's And/Or The Group's Pension And
Benefit Plans As Offered To Similarly Situated Employees;
Provided, However, The Company And/Or The Group May Modify Or
Discontinue Any Such Benefits, Plans Or Programs; And
(Ii) Reimbursement For All Reasonable And Necessary Expenses Incurred
In The Ordinary Course Of Executive's Employment Hereunder,
Including Travel And Entertainment Expenses, Upon Presentation By
Executive Of Appropriate Documentation Sufficient For Tax
Purposes To Substantiate The Expenditure As An Income Tax
Deduction, Except That Each Such Expenditure Shall Be
Reimbursable Only If It Is Of A Nature Qualifying It As A Proper
Deduction On The Federal And State Income Tax Returns Of The
Company.
(Iii)The Company Shall Grant The Executive (I) An Option To Purchase
300,000 Shares Of The Company's Common Stock, Par Value $0.001
Per Share, Of Which 75,000 Shares Shall Vest Upon The Date Of The
Execution And Delivery Of This Agreement And 75,000 Shares Shall
Vest On Each Of April 1, 2003, July 1, 2003 And October 1, 2003,
And (Ii) An Option To Purchase 150,000 Shares Of The Company's
Common Stock, Par Value $0.001 Per Share, The Shares Of Which
Shall Vest In 50,000 Share Increments Upon The Company's
Deployment Of Certain Products To Each Successive Group Of 10,000
Targeted Physicians, As Shall Be More Fully Described In The
Option Agreement (As Hereinafter Defined) (Clauses (C)(I) And
(Ii) Above Collectively, The "Options"). The Options Shall Be
Granted Pursuant To The Company's 1999 Stock Option Plan (As May
Be Amended, Modified, Or Replaced, Or Any New Stock Option Plan
Of The Company, The "Stock Option Plan") And The Company And The
Executive Shall Executive And Deliver An Option Agreement (The
"Option Agreement") In Accordance With The Stock Option Plan. The
Medix Board Shall Determine, In Its Sole Discretion, The Exercise
Prices And The Duration Of The Terms Of The Options. The Vesting
Of The Options Is Subject To The Executive Being Employed By The
Company At Such Times. Except As Otherwise Set Forth Herein, The
Options Shall Be Granted Pursuant To, And Shall Governed By, The
Stock Option Plan. All Other Terms And Conditions Relating To The
Options Shall Be As Set Forth In The Option Agreement.
6. Involuntary Termination.
(A) If The Executive Becomes Incapacitated Or Disabled By Accident,
Sickness Or Otherwise (Including Legal Disability) So As To Render
Executive Mentally Or Physically Incapable Of Performing The Services
Required To Be Performed By Executive Under This Agreement For A
Period Of 60 Consecutive Days Or Longer, Or 90 Non-Consecutive Days Or
Longer In Any 12 Month Period (Such Condition Being Herein Referred To
As A "Disability"), The Company May, At Its Option, Terminate The
Employment Of The Executive Under This Agreement, Effective Upon
Giving Executive Notice To That Effect. In The Event Of A Dispute As
To Executive's Ability To Perform Executive's Duties, The Company May
Refer The Same To A Licensed Practicing Physician Of The Company's
Choice, And Executive Agrees To Submit To Such Tests And Examination
As Such Physician Shall Deem Appropriate.
(B) If The Executive Dies During The Employment Period, The Employment Of
The Executive Shall Be Deemed To Be Terminated As Of The Date Of
Executive's Death (Such Termination, As Well As A Termination For
Disability Under Section 6(A) Above Being Referred To Herein As An
"Involuntary Termination").
7. Termination For Cause. The Company May Terminate The Employment Of The
Executive Hereunder At Any Time During The Employment Period For Cause By
Giving The Executive Written Notice Of Such Termination, Which Shall Take
Effect Immediately Upon Receipt Of Such Notice (A "Termination For Cause").
For The Purposes Of This Section 7, "Cause" Shall Mean:
(A) Any Material Breach Of The Executive's Obligations Under This
Agreement, If Such Breach Is Not Cured Within Five (5) Days After
Written Notice From The Company Describing The Alleged Breach;
Provided, However, A Breach Of Sections 11, 12, 13 Or 14 Shall Not Be
Subject To Any Cure Period;
(B) Gross Incompetence, Willful Misconduct Or Willful Neglect In The
Execution Of The Executive's Duties Hereunder;
(C) Fraud, Misappropriation, Theft, Gross Malfeasance Or Willful
Dishonesty On The Part Of The Executive, Including, Without
Limitation, Conduct Of A Felonious Or Criminal Nature, Conduct
Involving Moral Turpitude, Embezzlement, Or Misappropriation Of
Assets, Or In Connection With Any Dealings Or Arrangements With
Clients, Customers, Suppliers Or Vendors;
(D) Repeated Use Of Drugs Or Intoxicants To An Extent That It Impairs The
Executive's Ability To Properly Perform Executive's Duties;
(E) (I) Violation Of Executive's Fiduciary Obligations To The Company Or
(Ii) Conduct Which Is Inconsistent With The Executive's Position And
Which Results Or Is Reasonably Likely To Result, In An Adverse Effect
(Financial Or Otherwise) On The Business Or Reputation Of The Company
Or Any Other Member Of The Group, Or Which Subjects, Or If Generally
Known Would Subject, The Company Or The Group To Public Ridicule Or
Embarrassment;
(F) Repeated Or Continued Absence From Work During Normal Business Hours
For Reasons Other Than Disability Or Vacation; Or
(G) Repeated Violation Of Any Of The Policies, Rules, Regulations,
Standards Or Practices Of The Company Within Five (5) Days After
Written Notice Of Violation From The Company; And
8. Termination Without Cause. The Company May Terminate The Employment Of The
Executive, Without Cause, At Any Time Upon 30 Days' Prior Written Notice To
The Executive (A "Termination Without Cause").
9. Voluntary Termination. The Executive May Terminate His Employment With The
Company At Any Time After Expiration Of The Initial Term, Upon Three (3)
Month Prior Written Notice To The Company.
10. Effect Of Termination.
(A) Upon Any Termination Of The Employment Of The Executive Whether
Pursuant To Any Of Sections 6 Through 9 Hereof Or Otherwise, Neither
The Executive Nor Executive's Beneficiaries Or Estate Shall Have Any
Further Rights Or Claims Against The Company Or The Group Under This
Agreement, Except As Hereinafter Set Forth In This Section 11 And The
Right To Receive Any Benefits To Which The Executive Is Entitled To
Pursuant To Any Federal State Or Local Laws, Including, Without
Limitation, Cobra Laws:
(I) The Unpaid Portion Of The Base Salary Provided For In Section
5(A) Above To The Effective Date Of Termination;
(Ii) Reimbursement For Any Expenses For Which The Executive Shall Not
Have Theretofore Been Reimbursed As Provided In Section 5(B)(Ii)
Above.
(B) In The Event Of A Termination Without Cause Pursuant To The Terms Of
Section 8 Hereof, The Executive Shall Be Entitled To Receive, In
Addition To The Amounts Set Forth In Section 10(A) Above, The Base
Salary (Less Any Applicable Withholding Or Similar Taxes) At The Rate
In Effect Hereunder On The Date Of Such Termination, Periodically In
Accordance With The Company's Customary Payroll Practices, For A
Period Which Is The Lesser Of (I) Three (3) Months Or (Ii) The
Effective Date Of Termination To The Last Day Of The Initial Term. If
The Executive Accepts Other Employment Or Engages In Executive's Own
Business During The Period In Which He Receives Payments Pursuant To
This Section 10(B), The Executive Shall Forthwith Notify The Company
And The Company Shall Be Entitled To Set-Off From Amounts Due The
Executive Under This Section 10(B) The Amounts Earned By The Executive
In Respect Of Such Other Employment Or Business Activity. The
Executive Will Be Required To Certify On A Monthly Basis As To Any
Such Other Income And The Company Shall Be Entitled To Review A Copy
Of The Executive Income Tax Return(S) Covering The Periods In
Question. As A Condition Precedent To The Receipt Of The Payments And
Benefits Described In This Section 10(B), The Executive Shall Be
Required To Execute A General Release Of All Claims Arising Out Of The
Executive's Employment And The Termination Thereof, Including, But Not
Limited To, Any Claim Of Discrimination Under State Or Federal Law.
11. Confidentiality And Non-Disclosure.
3.1.1executive Recognizes That, As A Valued Employee Of The
Company, Executive Occupies A Position Of Trust With Respect
To Business Information Of A Secret, Proprietary Or
Confidential Nature That Is The Property Of The Company Or
The Group And Which Has Been Or Will Be Used By Or Imparted
To Executive From Time To Time In The Course Of The
Performance Of Executive's Duties Hereunder. Executive
Acknowledges And Agrees That Such Confidential Information
(As Defined Below) Are Important, Material And Confidential
Trade Secrets And Proprietary Information Of The Company,
And Materially Affect The Successful Conduct Of The
Company's Business And Its Goodwill. Executive Therefore
Agrees That:
Executive Shall Not At Any Time During The Term Of The Employment Period Or
Thereafter, Except In The Good Faith Performance Of Executive's Duties
Hereunder, Use Or Disclose, Directly Or Indirectly, Any Confidential
Information For The Executive's Own Benefit Or On Behalf Of Any Third
Party; And
Executive Shall Return Promptly On The Termination Of Executive's
Employment For Whatever Reason (Or In The Event Of Executive's Death,
Executive's Personal Representative Shall Return) To The Company At Its
Direction And Expense Any And All Copies Of Records, Drawings, Writings,
Computer Disks, Materials, Memoranda And Other Data Pertaining To Such
Confidential Information.
3.1.2"Confidential Information" Means And Includes (I) All
Knowledge, Documents, Information, Data And Material
Concerning The Company And The Group Or Any Of Their
Respective Businesses, Operations, Affairs Or Financial
Condition, And (Ii) All Information That Has Been Disclosed
To The Company By Any Third Party Under An Agreement Or
Circumstances Requiring Such Information To Be Kept
Confidential. Confidential Information Shall Include,
Without Limitation, The Names, Procedures, Projects, Rates,
Fees, And Practices Of The Company And Its Clients; Pricing
Information Relating To The Company And Its Vendors And
Suppliers; Compensation Paid To Employees And Other Terms Of
Employment; Proprietary Software And Programs; Financial Or
Research Models Or Processes And Related Data; And Financial
Information Concerning The Company And Of The Group.
Confidential Information Shall Not Include (I) Information
That Is In The Public Domain Through No Fault Of Executive;
(Ii) Information Published Or Disseminated By The Company In
The Ordinary Course Of Business Without Restriction; And
(Iii) Information Received From A Third Party Not Under An
Obligation To Keep Such Information Confidential And Without
Breach Of This Agreement By Executive.
12. Non-Solicitation.
(A) During The Employment Period, Executive Shall Not, Directly Or
Indirectly, Undertake Planning For, Or Organization Of, Any Activity
Competitive With Or Similar To The Company's Business, Products Or
Services, Or Combine Or Collaborate With Other Employees Or
Representatives Of The Company For The Purposes Of Organizing Any Such
Competitive Or Similar Business Activity.
(B) Executive Hereby Acknowledges And Recognizes That Executive Will Be
Privy To Confidential Information Constituting Trade Secrets,
Confidential Or Proprietary Information Of The Company And The Group.
Executive Agrees That, In Consideration Of The Promises Contained
Herein And The Consideration To Be Received By Executive Pursuant To
This Agreement, The Receipt And Sufficiency Of Which Is Hereby
Acknowledged, During The Employment Period And For A Period Of Two (2)
Years Thereafter, Executive Will Not, Directly Or Indirectly, Either
For Executive Or For Any Other Person, Firm, Or Corporation, Service
Or Supervise The Providing Of Services Or Products, Divert Or Take
Away Or Attempt To Divert Or Take Away (And During The Two-Year
Post-Termination Period, Call On Or Solicit Or Attempt To Call On Or
Solicit) Any Of The Company's Or The Group's Clients, Or Communicate,
Advise Or Consult With, Write Or Respond To, Or Inform Any Such Client
Of The Company (Including Without Limitation, Informing Any Client Of
A Change In The Executive's Employment), For The Purpose Of
Soliciting, Selling Or Recommending Conflicting Services, Or Otherwise
Attempt To Induce Or Persuade Any Such Client To Terminate Or Modify
Such Client's Relationship With Company Or The Group.
(C) During The Employment Period And For A Period Of Two (2) Years
Thereafter, Executive Will Not, Directly Or Indirectly (Including
Without Limitation Through The Use Of "Headhunters", Recruiters Or
Other Employment Agencies) Or By Action In Concert With Others,
Recruit Or Otherwise Induce Or Influence (Or Seek To Induce Or
Influence) Any Person Who Is Or Will Be Hereafter Engaged (As An
Employee, Agent, Independent Contractor Or Otherwise) By The Company
Or The Group To Terminate His Or Her Employment Or Engagement, Or
Employ Or Engage, Seek To Employ, Engage Or Influence Or Cause Any
Other Business Competitive Or Similar To The Company Or The Group To
Employ, Engage Or Influence Or Seek To Employ, Engage Or Influence Any
Such Person. This Restriction Includes That Executive Will Not (I)
Disclose To Any Third Party The Names, Backgrounds Or Qualifications
Of Any Of The Company's Or The Group's Employees Or Otherwise Identify
Them As Potential Candidates For Employment; Or (Ii) Participate In
Any Pre-Employment Interviews With Any Such Employee.
13. Inventions.
(A) The Company And The Group Shall Have All Rights, Including
International Priority Rights, In All Inventions. As Used Herein,
"Inventions" Shall Mean All Procedures, Inventions, Developments And
Discoveries, Whether Or Not Patentable, And All Suggestions,
Proposals, Computer Programs And Writings, Including Any Copyright
Interests Therein, Which Executive Authors, Conceives Or Makes, Either
Solely Or Jointly With Others During Executive's Employment With The
Company Which: (I) Relate To Any Subject Matter With Which Executive's
Work For The Company Or The Group May Be Concerned; (Ii) Relate To The
Business Products Or Services Or Demonstrably Anticipated Products Or
Services Of The Company Or The Group; (Iii) Involve The Use Of The
Time, Equipment, Materials Or Facilities Of The Company Or The Group;
Or (Iv) Relate Or Are Applicable To Any Phase Of The Company's Or The
Group's Business.
(B) Neither The Company Nor The Group Shall Have Rights In Any Inventions
Made Or Conceived By Executive That Do Not Involve Any Equipment,
Supplies, Facilities Or Materials Of The Company Or The Group And
Which Are Developed Entirely On Executive's Own Time Unless: (I) The
Invention Relates To The Business, Products Or Services Of The Company
Or The Group; (Ii) The Invention Relates To Demonstrably Anticipated
Products And Services Of The Company Or The Group, Or (Iii) The
Invention Results From Any Services Performed By Executive For The
Company Or The Group.
(C) Executive Shall Promptly Disclose To The Company All Inventions And,
At The Company's Sole Expense, Give The Company All Assistance It
Reasonably Requires To Perfect, Protect, And Use Its Rights To
Inventions. In Particular, But Without Limitation, Executive Will Sign
All Documents, Do All Things And Supply All Information (Including
Disks, Binary Code, Print-Outs And Descriptions) That The Company May
Deem Necessary Or Desirable To (I) Transfer Or Record The Transfer Of
Executive's Entire Right, Title, And Interest In Inventions; And (Ii)
Enable The Company To Obtain Patent, Copyright, Or Trademark
Protection For Inventions Anywhere In The World. Executive Hereby
Irrevocably Appoints The Company As Executive's Attorney For Purposes
Of Effectuating The Acts Contemplated In This Section. Executive
Agrees And Understands That Compliance With The Covenants And
Agreements Contained In This Section Is Not Conditioned Upon The
Payment Of Any Additional Or Special Consideration.
(D) The Obligations Of This Section Shall Continue Beyond The Termination
Of Executive's Employment With The Company, Whether The Inventions Are
Patentable Or Not, If Conceived Or Made By Executive During The
Employment Period, And Shall Be Binding Upon Executive's Assigns,
Executors, Administrators And Other Legal Representatives. For
Purposes Of This Agreement, Any Invention Relating To The Company's Or
The Group's Business Upon Which Executive Files Patent Application(S)
Within One (1) Year After The Termination Of This Agreement Shall Be
Presumed To Relate To An Invention Conceived By Executive During The
Employment Period, Subject To Proof To The Contrary By Good Faith,
Written And Duly Corroborated Records Establishing That Such Invention
Was Conceived And Made By Executive After Termination Of This
Agreement And That No Confidential Information Was Utilized By
Executive With Respect To That Invention.
14. Covenant Not To Compete.
(A) Executive Agrees That, During The Non-Compete Period (As Defined
Below), Executive Shall Not, Directly Or Indirectly, Engage In Any
Activities Either On Executive's Own Behalf Or That Of Any Other
Business Organization (Whether As Principal, Partner, Member, Officer,
Director, Stockholder, Agent, Joint Venturer, Consultant, Creditor,
Lender, Guarantor, Surety, Investor Or Otherwise) Which Are In Direct
Or Indirect Competition With, Or Similar To, The Business, Products
And Services Of The Company Or The Group In The United States And
Canada.
(B) Executive And The Company Expressly Declare That The Territorial And
Time Limitations Contained In This Section Are Entirely Reasonable At
This Time And Are Properly And Necessarily Required For The Adequate
Protection Of The Business And Intellectual Property Of The Company
And Group. If Such Territorial Or Time Limitations, Or Any Portions
Thereof, Are Deemed To Be Unreasonable By A Court Of Competent
Jurisdiction, Whether Due To Passage Of Time, Change Of Circumstances
Or Otherwise, Executive And The Company Agree To A Reduction Of Said
Territorial And/Or Time Limitations To Such Areas And/Or Periods Of
Time As Said Court Shall Deem Reasonable.
(C) Before Taking Any Position With Any Person Or Entity That Provides
Services Competitive Or Similar To The Company Or The Group During The
Non-Compete Period, The Executive Shall Give Prior Written Notice To
The Company Of The Name Of Such Person Or Entity. The Company Shall Be
Entitled To Advise Each Such Person Or Entity Of The Provisions Of
This Agreement, And To Otherwise Deal With Each Such Person Or Entity
To Ensure That The Provisions Of This Agreement Are Enforced And Duly
Discharged.
(D) All Time Periods In This Agreement Shall Be Computed By Excluding From
Such Computation Any Time During Which The Executive Is In Violation
Of Any Provision Of This Agreement And Any Time During Which There Is
Pending In Any Court Of Competent Jurisdiction Any Action (Including
Any Appeal From Any Final Judgment) Brought By Any Person, Whether Or
Not A Party To This Agreement, In Which Action The Company Or The
Group Seeks To Enforce The Agreements And Covenants In This Agreement
Or In Which Any Person Contests The Validity Of Such Agreements And
Covenants Or Their Enforceability Or Seeks To Avoid Their Performance
Or Enforcement Which Is Determined Adversely Against The Executive Or
Such Other Party.
(E) In Addition To Any Other Rights Or Remedies Available To The Company
Or The Group, In The Event That The Company Make A Good Faith
Determination That The Executive Breached Obligations Under Sections
11, 12, 13 Or 14, Any Outstanding Obligations Of The Company Hereunder
Shall Immediately Terminate.
(F) As Used Herein, The Term "Non-Compete Period" Means, With Respect To
The Executive, The Employment Period Plus The Period Commencing On The
Effective Date Of The Termination Of Employment And Ending One (1)
Year After Such Date.
15. Extraordinary Relief. Executive Acknowledges And Understands That The
Provisions Of Sections 11, 12, 13, And 14 Of This Agreement Are Of A
Special And Unique Nature, The Breach Of Which Would Cause The Company And
The Group Irreparable Injury, And Cannot Adequately Be Compensated For In
Damages By An Action At Law. In The Event Of A Breach Or Threatened Breach
By Executive Of Any Provision Of Such Sections, The Company Or The Group
May Seek An Injunction Restraining Executive From Such Actual Or Threatened
Breach, And Shall Not Be Required To Post A Bond Or To Prove That
Irreparable Injury Would Result From The Alleged Breach Of The Aforesaid
Sections. Nothing Contained Herein Shall Be Construed As Prohibiting The
Company Or The Group From Pursuing Any Other Remedies (Including, Without
Limitation, An Action For Damages) Available For Any Actual Or Threatened
Breach Of This Agreement, And The Pursuit Of Any Injunction Or Any Other
Remedy Shall Not Be Deemed An Exclusive Election Of Such Remedy. Executive
Shall Reimburse The Company For All Reasonable Costs And Expenses
(Including, Without Limitation, Reasonable Attorneys' Fees And Expenses)
Incurred In Connection With The Enforcement Of Sections 11, 12, 13, And 14
If It Is Determined That The Company Or The Group Was Entitled To Such
Relief. The Restrictions And Limitations Herein Regarding Non-Disclosure,
Non-Solicitation, Non-Competition And Inventions Are In Addition To, And
Not In Derogation Of, Applicable Law With Respect To Non-Disclosure,
Non-Solicitation, Non-Competition And Inventions In General.
16. Assistance In Litigation. Executive Shall, Upon Reasonable Notice, Furnish
Such Information And Proper Assistance To The Company And The Group As It
May Reasonably Require, At The Expense Of The Company And The Group, In
Connection With Any Litigation In Which It Is, Or May Become, A Party
Either During Or After The Employment Period.
17. No Disparagement. Executive Shall Not, Except In Connection With A Legal
Proceeding Or Order (Including A Proceeding Relating To This Agreement),
From And After The Date Hereof, Regardless Of The Expiration Or Termination
Of This Agreement, Make Any (I) Statement To Any Person Or Entity Which Has
A Business Relationship With The Company Or The Group Or (Ii) Public
Statement, In Each Instance, That Criticizes, Ridicules, Disparages Or Is
Derogatory Of The Company Or The Group, Or Any Of Their Stockholders,
Investors, Officers, Directors, Agents Or Employees Or Any Of Their
Products, Services Or Procedures, Whether Or Not Such Disparaging Or
Derogatory Statements Are True.
18. Notices. All Notices, Claims, Certificates, Demands And Other
Communications Hereunder Shall Be In Writing And Sent By Facsimile
Transmission Or E-Mail, By Nationally-Recognized Overnight Courier,
Delivered Personally, Or Mailed (By Registered Or Certified Mail, Return
Receipt Requested And Postage Prepaid), As Follows:
If To The Executive, To:
The Address As Provided By The Executive To The Company
With A Copy To Such Person Or Entity As The Executive Shall From Time To
Time Request By Notice To The Company;
If To The Company:
Medix Resources, Inc.
420 Madison Avenue
Suite 1830
New York, New York 10170
Tel: (212) 697-2509 X321
Fax: (212) 681-9817
Attention: Darryl R. Cohen
With A Copy To:
Moses &Amp; Singer Llp
1301 Avenue Of The Americas, 40th Floor
New York, New York 10019
Tel: (212) 554-7800
Fax: (212) 554-7700
Attention: Dean R. Swagert, Jr., Esq.
Or To Such Other Address As The Party To Whom Notice Is To Be Given May
Have Furnished To The Other Parties In Writing In Accordance Herewith. Any
Such Notice Or Communication Shall Be Deemed To Have Been Delivered (A) In
The Case Of Personal Delivery, On The Date Of Such Delivery, (B) In The
Case Of Courier Delivery, Upon Receipt Of Confirmation Of Delivery, (C) In
The Case Of Telecopy Transmission Or E-Mail, Upon Confirmation Of Receipt
By Hardcopy And (D) In The Case Of Mailing, On The Fifth Business Day
Following Posting.
19. Entire Agreement. This Agreement And The Other Writings Referred To Herein
Or Delivered Pursuant Hereto Which Form A Part Hereof Contain The Entire
Agreement Among The Parties With Respect To The Subject Matter Hereof And
Supersede All Prior And Contemporaneous Arrangements, Agreements Or
Understandings (Whether Written Or Oral) With Respect Thereto.
20. Successors And Assigns; Assignment. The Terms And Provisions Of This
Agreement Shall Be Binding Upon And Inure To The Benefit Of The Company And
The Executive And Their Successors And Permitted Assigns. This Agreement Is
Personal In Its Nature And Neither Party May Assign Or Transfer This
Agreement Or Any Rights Or Obligations Hereunder, Except That The Company
Shall Have The Right To Assign Its Rights Hereunder To Another Member Of
The Group.
21. Governing Law. This Agreement Shall Be Governed By And Construed In
Accordance With The Laws Of The State Of New York Without Giving Effect To
The Principles Of Conflict Of Laws.
22. Arbitration. In Consideration Of The Company Employing Executive Or
Continuing To Employ Executive And The Mutual Promises Set Forth Herein,
Executive And The Company Agree, For Themselves And For Their
Representatives, Successors, And Assigns, That Any Controversy Or Claim
Arising Out Of Or Relating To This Agreement, Its Enforcement Or
Interpretation, Or Because Of An Alleged Breach, Default, Or
Misrepresentation In Connection With Any Of Its Provisions, Or Arising Out
Of Or Relating In Any Way To Executive's Employment With Company Or
Termination Thereof, Shall Be Settled By Final And Binding Arbitration In
New York, New York Before A Single Arbitrator, In Accordance With The
Procedures Required Under New York Law.
(A) To The Extent Not Inconsistent With Law, The Following Will Govern Any
Arbitration Hereunder:
The National Rules For The Resolution Of Employment Disputes Of The
American Arbitration Association Will Apply. The Arbitrator May Award Any
Form Of Remedy Or Relief (Including Injunctive Relief) That Would Otherwise
Be Available In Court, Consistent With Applicable Laws. Any Award Pursuant
To Said Arbitration Shall Be Accompanied By A Written Opinion Of The
Arbitrator Setting Forth The Reason For The Award. The Award Rendered By
The Arbitrator Shall Be Conclusive And Binding Upon The Parties Hereto, And
Judgment Upon The Award May Be Entered, And Enforcement May Be Sought In,
Any Court Of Competent Jurisdiction.
Each Party Shall Share The Costs Of The Arbitrator And Forum Fees. Each
Party Shall Bear Its Own Respective Attorney Fees And All Other Costs,
Unless Otherwise Required Or Allowed By Law And Awarded By The Arbitrator,
Provided Further That If Any Matter Of Dispute Raised By A Party Or Any
Defense Or Objection Thereto Was Unreasonable, The Arbitrator May Assess,
As Part Of The Arbitration Award, All Or Any Part Of The Arbitration
Expenses (Including Reasonable Attorney's Fees) Of The Other Party And The
Arbitration Fees Against The Party Raising Such Unreasonable Matter Of
Dispute Or Defense Or Objection Thereto.
(B) This Predispute Resolution Agreement Covers All Matters Directly Or
Indirectly Related To Executive's Recruitment, Employment, Or
Termination Of Employment By The Company, Including, But Not Limited
To, Alleged Violations Of Title Vii Of The Civil Rights Act Of 1964,
Sections 1981 Through 1988 Of Title 42 Of The United States Code And
All Amendments Thereto, Employee Retirement Income Security Act Of
1974 ("Erisa"), The Americans With Disabilities Act Of 1990 ("Ada"),
The Age Discrimination In Employment Act Of 1967 ("Adea"), The Older
Workers Benefits Protection Act Of 1990 ("Owbpa"), The Fair Labor
Standards Act ("Flsa"), The Occupational Safety And Health Act
("Osha"), The Consolidated Omnibus Budget Reconciliation Act Of 1985
("Cobra"), And Any And All Claims Under Federal, State, And Local Laws
Against Discrimination, But Excluding Worker's Compensation Claims.
(C) In The Event That Either Party Files, And Is Allowed By The Courts To
Prosecute, A Court Action Against The Other, The Plaintiff In Such
Action Agrees Not To Request, And Hereby Waives Such Party's Right To
A Trial By Jury.
(D) Executive And The Company Understand That, Absent This Agreement, They
Would Have The Right To Sue Each Other In Court, And The Right To A
Jury Trial, But, By This Agreement, They Give Up Those Rights And
Agree To Resolve Any And All Grievances By Arbitration.
23. Waivers. The Provisions Of This Agreement May Not Be Waived, Temporarily Or
Permanently, Except Pursuant To A Writing Executed By The Party Against
Whom Enforcement Of Such Waiver Would Be Sought. The Waiver By Any Party Of
A Breach Of This Agreement Shall Not Operate Or Be Construed As A Waiver Of
Any Subsequent Breach.
24. Amendments; Modifications. The Terms And Provisions Of This Agreement May
Not Be Modified Or Amended Without The Written Agreement Of Each Of The
Parties.
25. Counterparts. This Agreement May Be Executed In Any Number Of Counterparts,
And Each Such Counterpart Shall Be Deemed To Be An Original Instrument, But
All Such Counterparts Together Shall Constitute But One Agreement. Delivery
Of An Executed Counterpart By Facsimile Shall Be Equally As Effective As
Delivery Of An Manually Executed Counterpart.
26. Headings. The Section And Paragraph Headings Contained In This Agreement
Are For Reference Purposes Only And Shall Not Affect In Any Way The
Meanings Or Interpretations Of This Agreement.
27. Survival. The Representations, Warranties, Covenants And Agreements Of The
Parties Hereto Shall Survive Any Cancellation, Termination, Rescission,
Amendment, Modification Or Expiration Of This Agreement And Any Termination
Of The Executive's Employment With The Company For Any Reason.
28. Indemnification. The Executive Shall Be Entitled To Indemnification In His
Capacity As An Officer Of The Company As Provided In The Company's
Organizational Documents And Applicable Law.
29. Executive's Ability To Contract For The Company. Executive Shall Not Have
The Right To Make Any Contracts Or Commitments For Or On Behalf Of The
Company Or The Group, To Sign Or Endorse Any Commercial Paper, Contracts,
Advertisements, Or Instrument Of Any Nature, Or To Enter Into Any
Obligation Binding The Company Or The Group To The Payment Of Money Or
Otherwise, Except To The Extent Executive Is So Authorized In Writing.
30. Executive's Representations. Executive Represents And Warrants That
Executive Is Free To Enter Into This Agreement And To Perform Each Of Its
Terms And Covenants. Executive Represents And Warrants That Executive Is
Not Restricted Or Prohibited, Contractually Or Otherwise, From Entering
Into And Performing This Agreement, And That Executive's Execution And
Performance Of This Agreement Is Not A Violation Or A Breach Of Any Other
Agreement Between Executive And Any Other Person Or Entity. Executive
Agrees To Indemnify And Hold The Company And The Group Harmless From Any
And All Costs And Expenses, Including Attorney's Fees, Incurred By The
Company And The Group As A Result Of Any Breach By Executive Of This
Provision.
[Remainder Of Page Intentionally Left Blank]
In Witness Whereof, The Parties Have Duly Executed And Delivered This
Employment Agreement The Date First Above Written.
Medix Resources, Inc.
By:
----------------------------
Name:
Title:
Executive
Name: James Q. Gamble
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