Executive Employment Agreement - Medix Resources, Inc. and Patricia A. Minicucci
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, dated as of February 15, 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 Patricia A. Minicucci (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 Executive Vice
President, Operations.
2. Responsibilities and Supervision. The Executive shall devote all of her
business time and attention to the affairs of the Company and its affiliated
companies. The Executive shall be responsible for the overall operations and
administration of the company 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 her duties, the Executive shall maintain an
office at 305 Madison Avenue New York, NY 10165. 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 begin on March 8, 2000 and be for a 2-year
period ending March 1, 2002, subject to the termination provisions set forth in
Paragraphs 10, 11, and 12 hereunder.
4. Duties. During the period of her employment hereunder and except for
illness, specified vacation periods and reasonable leaves of absence, the
Executive shall devote his best efforts and all her 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 theexisting 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 her services, the base salary of $200,000 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.
The Executive also is eligible to participate in an annual bonus plan, the terms
and provisions of which will be decided by the Board of Directors. As additional
compensation hereunder, upon the execution of this Agreement, the Company will
grant to the Executive 400,000 options to purchase common stock of the Company
under the Company's 1999 Stock Option Plan, at an exercise price of $4.97. 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, long term
disability, 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 heremployment under this
Agreement or while receiving compensation under this Agreement, she 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 her 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 her 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, she 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 is breached 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. 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:
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
her employment;
(2) The conviction of the Executive of a felony;
(3) Habitual neglect of duty by the Executive; The Executive's
material failure to perform or meet objective and measurable standards
set by the President and Chief Executive Officer and agreed upon by
the Executive in advance.
(b) Termination Without Cause by the Company. After the completion of
the initial year of employment hereunder, the Company may terminate 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 her 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. 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) the merger, consolidation, reorganization or liquidation of the
Company that results in a change in ownership of 50% or more in the
direct or indirect ownership of the Company before the merger,
consolidation, reorganization or liquidation, the Executive shall
receive a lump sum compensation equal to her annual salary and
incentive or bonus payments, if any, as would have been paid to the
Executive during the Company's then current fiscal year (as if the
Executive had been employed for the full fiscal year), within 30 days
of the Triggering Event. All of Executive's granted but unvested
options shall immediately vest upon the occurrence of a Triggering
Event, and all of the shares underlying all the options held by him
shall be registered on a Form S-8 (or any successor form) in a timely
manner (no more than 45 days after such Triggering Event), to be sold
to her by the Company or its successor as unrestricted and freely
tradable shares. If the total amount of the change of control
compensation were to exceed three times the Executive's base salary
(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 her
rights and the 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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. Prufuta
---------------------
John R. Prufeta
President and Chief Executive Officer
THE EXECUTIVE:
By:/s/Patricia Minicucci
------------------------
Patricia Minicucci
EXHIBIT A
VESTING SCHEDULE FOR OPTIONS
Options covering 400,000 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 50,000 shares shall vest on the same date of each third month from the
prior vesting date, until all options have vested (which date shall be 21 months
from the date of this Agreement), so long as Executive is still employed by the
Company on each of those vesting dates. However, in order to qualify for the
exemption provided by Rule 16b-3, 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.