Executive Employment Agreement - Medix Resources Inc. and John R. Prufeta
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, dated as of December 1, 1999, (the
"Agreement") by and between Medix Resources, Inc., a Colorado corporation with
principal offices located at Suite 301, 7100 E. Belleview Ave, Englewood,
Colorado. ("the Company") and John R. Prufeta, whose business address is 305
Madison Avenue, Suite 2033, New York, NY 10165 (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 and Chief Executive Officer and President.
2. Position and Responsibilities. The Executive shall 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, and
shall have full authority and responsibility with respect thereto, including the
matters set forth in the Job Description attached hereto as Exhibit B, subject
to the general direction, approval and control of the Company's Executive
Committee, 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 Executive Officer and President under the supervision of the
Board of Directors. In the performance of his duties, the Executive shall
maintain an office at 305 Madison Avenue, Suite 2033, New York, New York.
4. Term of Employment. The period of the Executive's employment under this
Agreement shall be for a period ending January 31, 2002, subject to the
termination provisions set forth in Paragraphs 12, 13, 14 and 15 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 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
and affiliated companies; or (b) Within the logical scope of the business of the
Company and affiliated companies, as such scope may be expanded or altered from
time-to-time by the Board of Directors. The parties understand that the
Executive shall continue to own an interest in the following businesses:
Creative Health Concepts, Inc., Creative Management Strategies, Inc. and TCG
Development, Inc. Such ownership interests and any meetings or discussions
relating to internal matters of those businesses that are not promotional or
representational in nature, which do not interfere with the Executive's full
time management of the Company and its interests, will not be considered a
violation of this Section 5. 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, any officer, director or general
partner of a company.
6. Compensation. The Company shall pay to the Executive as compensation for
his services, the base salary of $120,000 per year or such higher salary as may
be from time-to-time approved by the Board of Directors, payable bi-monthly in
accordance with the Company's normal payroll procedures. In addition, during the
term of this agreement the Executive will receive as compensation, a commission
of 2.5% of all revenue generated by the Company's subsidiary, Cymedix Lynx
Corporation for the period provided herein (net, however, of any rebates that
exceed 10%). This commission will exclude the revenues generated from agreements
with WellPoint Pharmacy Management, WellPoint Health Network, Advance Paradigm
and any affiliated company of each. The Executive's commission will be paid for
a period of three years beginning at the initiation of revenue from the customer
account, so long as the revenue stream begins before this Agreement is
terminated for whatever reason. It is understood that each new project for a
customer or an affiliate of a customer shall generate a new customer account. If
there is any uncertainty whether any work to be done for a client constitutes a
"new project," the Executive will discuss such issue with the Executive
Committee of the Board of Directors, and the decision of the Executive Committee
shall determine the issue. In addition, the Board of Directors shall review any
new acquisition or business development project that is conducted in a
subsidiary other than Cymedix or in the parent Company, on a case by case basis,
to determine whether it is appropriate to provide the Executive with an
incentive of the commission designated above for the business generated by that
subsidiary or that project. The Company also agrees to pay to Creative
Management Strategies, Inc., a total of $110,000, for services rendered to the
Company in 1999 by the Executive. The Company will submit to Creative Management
Strategies twelve (12) equal payments of $9,166.66 beginning February 1, 2000
and ending January 1, 2001. The Executive agrees that all previous agreements
between the Company, the Executive and Creative Management Strategies are hereby
terminated. Upon the execution of the Agreement, the Company will grant to the
Executive 400,000 Stock Options, at an exercise price of $.50 and 600,000 Stock
Options, at an exercise price of $4.97. Terms of the Stock Option grant are set
forth in the Stock Option Agreement attached hereto as Exhibit A.
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, including travel and lodging costs. The Executive shall
present to the Executive Committee each month an itemized account of such
expenses in such form as is required by the Board of Directors.
8. 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, long-term
disability, and term life insurance at Executive's cost, on the same basis as
other Executives of the Company. If the Executive elects not to utilize the
Company's group health insurance policy, the Company will pay the Executive an
amount equal to the maximum amount the Company would pay any other Executive
then employed by the Company if he or she choose not to utilize the Company's
group health insurance policy.
9. Vacation Time. The Executive shall be entitled to take four (4) 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. Compensation for annual vacation
time not taken by Executive shall be paid to the Executive at the date of
termination.
10. Obligations of Executive During and After Employment.
(a) In consideration of the compensation to be paid to Executive
hereunder, and in recognition of the confidential and proprietary nature of the
intellectual property that is the basis for the revenues of the Company and its
affiliated companies, the importance of confidential business information such
as its business plans and customer strategies to the Company and its affiliates,
and the fact the Executive will be fully aware and intimately involved in the
generation of some or all of such material, the Executive agrees that during his
employment by the Company and for a period of one (1) year after the termination
of such employment, he will not, directly or indirectly compete with the Company
in a business that is involved in a "Business Opportunity" of the Company or its
affiliated companies, as defined in Section 5 above.
(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 the written consent of the Chairman of the Board, 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) 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. (d) Irreparable harm should be presumed if
Section 11 of this Agreement 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.
11. 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 his employment;
(2) The conviction of the Executive of a felony
(3) Habitual neglect of duty by the Executive;
(4) The Executive's material failure to perform or meet objective
and measurable standards set by the Board of Directors and agreed upon by the
Executive in advance If the Executive desires to contest the determination to
terminate his employment for cause, he may request in writing to the Executive
Committee, within 5 business days of the written notice to him of his
termination, that a meeting of the full Board of Directors be called to hear his
views on the matter. Such meeting shall take place within 30 days of such
written notice. During such period, unless otherwise agreed, the Executive will
be in the status of being on paid leave. The Board shall make its decision at
the meeting, and if it is in favor of the Executive, he shall immediately resume
his duties. If it is not in his favor, his employment shall be immediately
terminated.
(b) Termination Without Cause by the Company. After the completion of the
initial year of employment hereunder, 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.
12. Termination by the Executive Without Cause. The Executive, 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.
13. 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, 7, 8 and 10 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.
14. 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.
15. 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 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 then current fiscal year ( as if the Executive had been employed for
the full fiscal year) within 30 days of the Triggering Event. Upon a Triggering
Event, any outstanding but unvested options granted by the Company to the
Executive shall immediately vest, and the Company shall cause the shares to be
registered with the Securities and Exchange Commission so that the Executive
will be free to sell such shares in the public securities markets. If the
Company has been acquired by another publicly traded company, the Company shall
cause that company to agree to exchange its options to acquire such company's
shares for the Company's options, and to cause such shares to be registered with
the Securities and Exchange Commission for sale in the public securities markets
by the Executive. If the Company has been acquired by a private company, the
Company shall cause such company to offer to purchase the Executive's options
granted by the Company or shares underlying the options, upon the same terms as
are offered to the Company's shareholders in connection with such company's
acquisition of control of the Company. If the total amount of the change of
control compensation were to exceed three times the Executive's base amount (the
average annul 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.
16. 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,
Executive shall also be covered by or benefit from such policy or policies.
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, 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.
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,
excluding however, the provisions governing conflicts of law..
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
February 1, 2000.
FOR THE COMPANY: EXECUTIVE: MEDIX RESOURCES, INC.
/s/ John R. Prufeta
--------------------
John R. Prufeta
By: /s/John P. Yeros
--------------------
John P. Yeros
Chairman of the Board
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EXHIBIT A
VESTING SCHEDULE FOR OPTIONS
Options to acquire 250,000 shares of Company Common Stock at an exercise price
of $.50 per share will vest at the close of a $10 million financing with a level
one investment banker.
Options to acquire 150,000 shares of Company Common Stock at an exercise price
of $.50 per share will vest at the close of a second $10 million financing with
a level one investment banker.
Options to acquire 100,000 shares of the Company Common Stock at an exercise
price of $4.97 per share will vest at the close of a third $10 million financing
with a level one investment banker.
Options to acquire 250,000 shares of Company Common Stock at an exercise price
of $4.97 per share will vest at the completion of the first year of Executive's
employment agreement.
Options to acquire 250,000 shares of Company Common Stock at an exercise price
of $4.97 per share will vest at the completion of the second year of the
Executive's employment agreement.
The above Options shall be granted under the Company's 1999 Stock Option Plan
and so long as Executive is employed by the Company shall have a term of ten
years. However, if the Executive leaves the Company, the above options shall
terminate on the earlier of the third anniversary of the termination of his
employment or the end of the above referenced ten- year term. 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
grant of the options.
Exhibit B
JOB DESCRIPTION
Chief Executive Officer and President
Medix Resources, Inc.
The Chief Executive Officer and President of Medix Resources, Inc. shall be
responsible for the day to day management and operation of the Company. He shall
have full authority and responsibility for the Company's balance sheet and
profit & loss statements. He will be subject to the general direction, approval
and control of the Company's Executive Committee and Board of Directors.
RESPONSIBILITIES
o Day to day management and operation of the Company.
o Authority and responsibility of the balance sheet and profit & loss
statements.
o Provide near term and long term budgets as requested by the Board of
Directors.
o Management of budget & policies as determined by the Executive Committee
and the Board of Directors.
o Management of Investment Banking activities.
o Management of any merger and acquisition activities.
o Development of distribution network for the Company's subsidiaries
products.
o Management and training of all sales executives hired by the Company for
the purposes of marketing and sales for the Company's subsidiaries
products.
o Oversee all public & investor relations activities.
o Organize, attend, and chair all monthly and quarterly Board of
Directors meetings.
o Executive shall be the Chairman of the Board for each of the Company's
subsidiaries, and if he is not the chief executive officer of the
subsidiary, the president, chief executive officer or chief operating
officer of the subsidiary shall report to the Executive on a mutually
agreed upon schedule, regarding the activities of the subsidiary.