Executive Employment Agreement - Medix Resources Inc. and David Kinsella
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Medix Resources, Inc. (the "Company") with principal offices located
at Suite 301, 7100 E. Belleview, Englewood, Colorado and David
Kinsella (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 Chief Accounting Officer.
2. Position and Responsibilities. The Executive shall exert his best
efforts and devote all of his business time and attentions to the affairs of the
Company. The Executive shall be responsible for the day to day management and
operation of the Company's financial affairs, and shall have full authority and
responsibility with respect thereto, subject to the general direction, approval
and control of the 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.
3. Board of Directors. The Executive shall at all times discharge his
duties as Chief Accounting Officer under the supervision of the Board of
Directors of the Corporation. In the performance of his duties, the Executive
shall make his principal office at the Corporate offices located in Englewood,
Colorado.
4. Term of Employment. The period of the Executive's employment under this
Agreement shall be for a two-year period or until September 30, 2001, subject to
the termination provisions set forth in Paragraph 13 and 14 hereafter.
5. 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, under and pursuant to the general direction of the Board of Directors
of the Company, provided, however, that, with approval of the Board of Directors
of the Company, the Executive may continue to 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.
6. Compensation. The Company shall pay to the Executive as compensation
for his services, the base salary of $100,000 per year, or such higher salary as
may be from time-to-time approved by the Board of Directors, plus additional
compensation and/or bonuses or stock options as may be voted to him at the sole
discretion of the Board of Directors.
7. 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. The Executive shall present to the CEO each month an
itemized account of such expenses in such form as is required by the Board of
Directors.
8. Medical, Dental and Disability Coverage. The Executive, his spouse, and
those children who qualify will be eligible to participate in the Company's
current Employee Group Medical and other group insurance programs on the same
basis as other Executives of the Company.
9. Medical Examination. The Executive agrees to submit himself for
physical examination on one occasion per year as requested by the Company for
the purpose of the Company's obtaining life insurance on the life of the
Executive for the benefit of the Company; provided, however, that the Company
shall bear the entire cost of such examinations and shall pay all premiums on
any key man life insurance obtained for the benefit of the Company as
beneficiary.
10. Vacation Time. The Executive shall be entitled to take three (3) weeks
paid vacation per calendar year. Such vacation may not be taken in any greater
than consecutive two (2) week increments. Vacation not used by the Executive
during the calendar year will be forfeited.
11. 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 Company in
writing. All records, files, business plans, documents, equipment and the like,
or copies thereof, 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 its written consent, and shall be promptly returned to the
Company upon termination of employment with the Company and its affiliated
companies.
(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 hospital and supplemental staffing accounts, its business
opportunities, its expansion plans into other geographical areas and its methods
of doing business. Executive agrees that for a period of one year after
termination of his employment, he will not, directly or indirectly compete with
the Company in the business of supplemental staffing, home health,
rehabilitation services, travel nurse and iHealth software related services
within 100 miles of locations operated by the Company on the date of
termination.
(d) In the event a court of competent jurisdiction finds any
provision of this Section 11 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.
12. Termination by the Company.
(a) Termination for Cause by the Company. During the first year of
the term of this Agreement, there can be no termination of the Executive by the
Company except for "Termination for Cause" as outlined below:
(1) Notwithstanding anything herein to the contrary, the Company
may, without liability, terminate the Executive's employment hereunder for cause
at any time upon written notice from the Board of Directors specifying such
cause, and thereafter the Company's obligations hereunder shall cease and
terminate; provided, however, that the Company shall pay the Executive 30 days
pay and that such written notice shall not be delivered until the Board of
Directors shall have given the Executive written notice specifying the conduct
alleged to have constituted such cause and the Executive has failed to cure such
conduct, if curable within thirty (30) days following receipt of such notice.
Grounds for termination "for cause" shall be one or more of the following:
(1) A willful breach of duty by the Executive duringthe course of his
employment;
(2) Habitual neglect of duty by the Executive;
(3) The Executive's material failure to perform or meet objective
and measurable financial standards set by the Board of Directors and
agreed upon by theExecutive in advance;
(4) Disloyal, dishonest or illegal conduct of the Executive
(b) Termination Without Cause by the Company. After the completion of
the initial year of employment hereunder, the Board of Directors may terminate
the employment of the Executive upon thirty (30) days written notice without
cause, by a majority vote, if in the opinion of the Board, the Executive has
failed to meet projected financial goals and/or discharged his duties and
responsibilities to the satisfaction of the Board. In the event of termination
without cause, the Company will pay the Executive three (3) months salary as
compensation. 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.
13. Termination by the Executive Without Cause. The Executive, without
cause, may terminate this Agreement upon 30 days' written notice to the Company.
In such event, the Executive shall be required to render the services required
under this Agreement during such 30-day period unless otherwise directed by the
Board of Directors. Compensation for vacation time not taken by Executive shall
be paid to the Executive at the date of termination.
14. Termination by the Executive with Cause. The Executive may terminate
this employment with the Company at any time upon 30 days' written notice and
opportunity for the Company to remedy any non-compliance, by reason of (i) the
Company's material failure to perform its duties pursuant to this Agreement; or
(ii) any material diminishment in the duties and responsibilities, working
facilities, or benefits as described in paragraphs 2, 5, 6,and 8 of this
Agreement. Executive shall be entitled to all base salary specified herein for a
six-month period following the notice of termination for cause.
15. Termination Upon Death of Executive. In addition to any other
provision relating to termination, this Agreement shall terminate upon the
Executive's death. No severance allowance or compensation for vacation
time not taken by Executive shall be paid to the Executive's estate.
16. Lump Sum Compensation. In the event of the occurrence of a "Triggering
Event" which shall be defined to include (i) change in ownership of 50% or more
of the outstanding shares of the Company, or (ii) merger, consolidation,
reorganization or liquidation of the Company, the Executive shall receive lump
sum compensations equal to his annual salary and incentive or bonus payments, if
any, as would have been paid to the Executive during the Company's most recent
fiscal year (as if the Executive had been employed for the full fiscal year)
within 30 days of the Triggering Event. The Executive will also receive complete
vesting of any outstanding granted options an registration of all underlying
shares not previously registered. If the total amount of the change of control
compensation were to exceed three times the Executive's base amount (the average
annual taxable compensation of the Executive for the five years preceding the
year in which the change of control occurs), the Company and the Executive may
agree to reduce the lump sum compensation to be received by Executive in order
to avoid the imposition of the golden parachute tax as provided in the Tax
Reform Act of 1984, as amended by the Tax Reform Act of 1986.
In the event the Executive is required to hire counsel to negotiate
on his behalf in connection with his termination or resignation from the Company
upon the occurrence of a Triggering Event, or in order to enforce the rights and
obligations of the Company as provided in this Paragraph, the Company shall
reimburse to the Executive all reasonable attorney's fees which may be expended
by the Executive in seeking to enforce the terms hereof. Such reimbursement
shall be paid every 30 days after the Executive provides copies of invoices from
the Executive's counsel to the Company. 17. 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, the prevailing party shall bear all
attorney's fees, costs and necessary disbursements in such legal proceeding
and/or arbitration.
18. 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.
(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.
19. 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.
20. 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.
21. 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.
22. Effective Date. The effective date of this Agreement shall be
September 27, 1999.
FOR THE COMPANY:
MEDIX RESOURCES, INC.
By: /s/ John P. Yeros
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Date:10/29/99 John P. Yeros
Chief Executive Officer
FOR THE EXECUTIVE:
By:/s/ David Kinsella
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Date: 10/29/99 David Kinsella
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment (this "Amendment") to the Executive Employment Agreement,
effective September 27, 1999, and any extension thereof or replacement agreement
therefore (the "Employment Agreement"), between Medix Resources, Inc. (the
"Company") and David Kinsella (the "Executive") is being executed by the parties
to provide additional terms to the Employment Agreement of the Executive. The
effective date of this Amendment, notwithstanding the actual date of signing, is
January 26, 2000.
1. Agreement as to Severance. If the Executive or the Company
terminate his employment for any reason before August 1, 2000, he will
receive a severance payment of an amount equal to six months of salary as
currently provided in the Employment Agreement. Such payment shall be made
to the Executive in a lump sum payment, subject to deductions for
applicable tax withholding and employee benefits to be retained by the
Executive, no later than two weeks after the last day of his employment
with the Company. Such payment shall also include all reimbursable expenses
owed to the Executive, and accrued sick leave and vacation time, at the
time of the termination of his employment.
2. Vesting of Stock Options. All of the Executive's currently granted but
unvested stock options to purchase Company common stock shall immediately vest,
but all of the other terms thereof shall remain in full force and effect.
3. General. The general contract provisions of the Employment Agreement
shall apply to this Amendment and all of the terms and conditions of the
Employment Agreement, as amended, shall continue in full force and effect until
terminated as provided therein.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to be
effective as of the date first stated above, based upon the action of the
Company's Board of Directors at their meeting held on January 26, 2000.
MEDIX RESOURCES, INC. EMPLOYEE:
By: /s/ John P. Yeros By: /s/David Kinsella
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John P. Yeros David Kinsella
Chairman of the Board