EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into on
October 10, 2005 by and between IntegraMed America, Inc., a Delaware
corporation, having its principal place of business at Two Manhattanville Road,
Purchase, New York 10577 ("Company"), and Jay Higham, a resident of the state of
Connecticut, residing at 21 Rose Lane, Sandy Hook, Connecticut 06482
("Employee"), for the purpose of setting forth the terms and conditions of
Employee's employment by the Company and to protect the Company's interests,
confidential information, trade secrets and other proprietary information and to
obtain assurance that Employee will not compete with Company or solicit its
customers or its other employees during the term of employment and for a
reasonable period of time after termination of employment pursuant to this
Agreement. This Agreement contains the complete agreement between the parties
and supersedes any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related to the subject
matter hereof in any way.
Recitals:
WHEREAS, The Company desires to employ Employee as the Company's
President and Chief Executive Officer, and Employee desires to accept and serve
in that capacity; and
WHEREAS, Employee understands that such employment is expressly
conditioned on execution of this Agreement; and
WHEREAS, Company desires to employ Employee to render services for
Company on the terms and conditions set forth in this Agreement, and Employee
desires to be retained and employed by Company pursuant to such terms and
conditions.
NOW, THEREFORE, in consideration of Employee's employment with Company
and the foregoing premises, the mutual covenants set forth below and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Company and Employee agree as follows:
Article I. Definitions
1.1 "Agreement" means this Employment Agreement, as from time to time
amended.
1.2 "Base Salary" means the total annual cash compensation payable on a
regular periodic basis, without regard to taxes and other items withheld, and
excluding all types of incentive pay, all forms of stock or equity based
compensation, fringe benefits, special pay or awards, commissions and bonuses.
Base Salary shall include amounts contributed by Employee to a qualified
retirement plan, nonqualified deferred compensation plan or similar plan
sponsored by the Company, but it shall not include earnings on those amounts.
1.3 "Board" means the Board of Directors of Company.
1.4 "Cause" means:
(a) the gross neglect or willful failure or refusal of Employee to
perform Employee's duties hereunder (other than for Good Reason or as a
result of Employee's Disability);
(b) perpetration of an intentional and knowing fraud against or
affecting Company or any customer, supplier, client, agent or employee
thereof;
(c) any willful or intentional act that injures the reputation, business
or business relationships of Company or Employee's reputation or business
relationships;
(d) conviction (including conviction on a nolo contendere plea) of a
felony or any crime involving fraud, dishonesty or moral turpitude; or
(e) the breach by Employee of any material covenant set forth in this
Agreement (including without limitation the Confidentiality, Non-compete or
Inventions provisions of the Agreement).
For purposes of this Section 1.4, no act, or failure to act, on
Employee's part shall be considered "willful," "intentional" or "deliberate"
unless done, or omitted to be done, by Employee in bad faith and without
reasonable belief that Employee's action or omission was in, or not opposed
to, the best interest of Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or based
upon the advice of counsel for Company shall be conclusively presumed to be
done, or omitted to be done, by Employee in good faith and in the best
interests of Company.
1.5 "Change of Control" means the occurrence of any of the following events:
(a) When any "Person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended) is or becomes the
"Beneficial Owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of Company representing more than fifty percent
(50%) of the total voting power represented by Company's then outstanding
voting securities without the approval of the Board; or
(b) The merger or consolidation of Company whether or not approved by
the Board, other than a merger or consolidation which would result in the
voting securities of Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty
percent (50%) of the total voting power represented by the voting securities
of Company or such surviving entity outstanding immediately after such
Page 2 of 23
merger or consolidation, or the shareholders of Company approve a plan of
complete liquidation of Company or an agreement for the sale or disposition
by Company of all or substantially all of Company's assets; or
(c) One or more changes in the aggregate composition of the Board as a
result of which individuals, who, as of the date hereof, constitute
Company's Board (the "Incumbent Board"), together with Employee ( based on
Employee's election to the Board pursuant to Section 2.1), subsequently
cease for any reason to constitute at least a majority of Company's Board;
provided, however, that any individual becoming a director of Company
subsequent to the date hereof, whose election, or nomination for election by
Company's stockholders, shall have been approved by a vote of at least a
majority of the directors then constituting the Incumbent Board shall be
considered as though such individual is a member of the Incumbent Board, but
excluding as a member of the Incumbent Board, any such individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of Company; and
provided further that, if one or more events which would constitute or
reasonably be deemed likely to cause or result in a "Change of Control"
should occur, but Employee shall have approved such event(s) either in
writing or by vote at a meeting of Company's Board, no "Change of Control"
shall be deemed to have occurred for purposes of this Agreement.
1.6 "Company" means all of the following, jointly and severally: (a)
IntegraMed America, Inc.; (b) any Subsidiary; and (c) any successor by merger,
consolidation, purchase or otherwise.
1.7"Confidential Information" means any and all information in whatever
form, whether written, electronically stored, orally transmitted or memorized
pertaining to: Trade Secrets; customer lists, records and other information
regarding customers; price lists and pricing policies, financial plans, records,
ledgers and information; purchase orders, agreements and related data; business
development plans; products and technologies; product tests; manufacturing
costs; product or service pricing; sales and marketing plans; research and
development plans; personnel and employment records, files, data and policies
(regardless of whether the information pertain to Employee or other employees of
Company); tax or financial information; business and sales methods and
operations; business correspondence, memoranda and other records; Inventions,
improvements and discoveries; processes and methods; and business operations and
related data formulae; computer records and related data; know-how, research and
development; trademark, technology, technical information, copyrighted material;
and any other confidential or proprietary data and information which Employee
encounters during employment, all of which are held, possessed and/or owned by
the Company and all of which are continually used in the operations and business
of Company. Confidential Information does not include information which (i) now
is or hereafter enters the public domain not as a result of a breach of this
Agreement by Employee; or (ii) is disclosed to Employee by a third party which
has the legal right to disclose such information. 1.8 "Disability" means
Employee's inability, due to a physical or mental impairment, to perform the
essential functions of the Employee's position, where such disability shall
exist for an aggregate period of more than 120 days in any 365-day period or for
any period of 90 consecutive days.
Page 3 of 23
1.9 "Employee" means Jay Higham.
1.10 "Good Reason" means:
(a) Company effects a material diminution of Employee's title or duties;
(b) any requirement that Employee report to an entity other than the
Company, the Board or its successor, if any;
(c) a relocation of Company's principal executive offices to a location
whose distance is at least 50 miles farther from Employee's then current
residence, provided that Employee shall not have participated in or approved
the decision to effect such relocation;
(d) the failure by Company, or its successor, if any, to pay
compensation or provide benefits or perquisites to Employee as and when
required by the terms of this Agreement;
(e) any material breach by Company of this Agreement;
(f) any requirement that Employee perform duties inconsistent with those
of a senior executive officer holding Employee's titles;
(g) the failure, refusal or inability of the Company to maintain in full
force and effect directors and officers errors and omissions insurance, or
similar security for claims brought against Employee as a result of
Employee's good-faith performance of Employee's duties; and provided
Employee has not approved either in Employee's role as President & CEO or
member of the Board any action not to maintain in full force and effect
directors and officers errors and omissions insurance;
(h) the failure of the Company to remain in full and timely compliance
with reporting requirements under the Federal Securities laws; provided
Employee has not approved either in Employee's role as President & CEO or
member of the Board any action not to maintain compliance with reporting
requirements under the Federal Securities laws; or
(i) the failure, refusal or inability of the Company to make tax
payments the liability for which may fall upon Employee; provided Employee
has not approved either in Employee's role as President & CEO or a member of
the Board any action not to make tax payments the liability for which may
fall upon Employee.
Page 4 of 23
1.11 "Invention" means any idea, invention, software, technique,
modification, process, development, design, know-how, data, formula, improvement
or similar items, whether or not reduced to writing or stored electronically or
otherwise, whether patentable or unpatentable and whether or not protectable by
patent, trademark, copyright or other intellectual property law, which is
created, conceived or developed by Employee or under Employee's direction,
whether solely or with others, during or within 12 months after Employee's
employment by Company, that relates in any way to, or is useful in any manner
in, the business now or then conducted or proposed to be conducted by Company or
which is based upon or otherwise derives from or makes use of the Confidential
Information. Employee shall promptly disclose any Employee Invention to Company
in writing. Employee hereby acknowledges that any and all of said Inventions are
the property of Company and hereby assigns and agrees to assign to Company any
and all of Employee's right, title and interest in and to any and all of said
Inventions.
1.12 "Plan" means any bonus or incentive compensation agreement, plan,
program, policy or arrangement sponsored, maintained or contributed to by
Company, to which Company is a party or under which employees of Company are
covered, including, without limitation, any stock option, restricted stock or
any other equity based compensation plan, and any employee benefit plan, such as
a thrift, pension, profit sharing, deferred compensation, medical, dental,
disability, accident, life insurance, automobile allowance, perquisite, fringe
benefit, vacation, sick or parental leave, severance or relocation plan or
policy or any other agreement, plan, program, policy or arrangement intended to
benefit employees or executive officers of Company.
1.13 "Proprietary Information" means any and all confidential and/or
proprietary knowledge, data or information of Company or used in the research,
development or marketing of Company's technology or business, including, but not
limited to, (a) Trade Secrets, Inventions, mask works, ideas, processes,
formulas, source and object codes, data, programs, customer lists, other works
of authorship, know-how, improvements, discoveries, developments, designs and
techniques; and (b) information regarding plans for research, development, new
products, marketing and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and customers; and
(c) information regarding the skills and compensation of other employees of
Company. Notwithstanding the foregoing, it is understood that, at all such
times, Employee will be free to use information that is generally known in the
trade or industry, that is not gained as a result of a breach of this Agreement
and Employee's own, skill, knowledge, know-how and experience to whatever extent
and in whichever way Employee desires.
1.14 "Subsidiary" means any corporation at least a majority of whose
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the occurrence of a
contingency) is at the time owned by Company and/or one or more Subsidiaries.
1.15 "Trade Secrets" means any information (including any compilation,
device, method, technique or process) that: (a) derives independent economic
value, actual or potential, from not being generally known to, and not being
Page 5 of 23
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. The existence of a
Trade Secret will not be negated merely because a person has acquired a Trade
Secret without express or specific notice that it is a Trade Secret if, under
all the circumstances, such person knows or has reason to know that the party
who owns the information or has disclosed it intends or expects the secrecy of
the type of information comprising the Trade Secret to be maintained. Trade
Secret information includes information of Company, its customers, suppliers,
joint ventures, licensors, licensees, distributors and other entities with which
Company does business.
1.16 "Term" means the period commencing January 1, 2006 and terminating in
accordance with this Agreement.
Article II. Employment, Term, and Duties
2.1 Employment. Company hereby employs Employee as President and Chief
Executive Officer, and Employee accepts such employment and agrees to perform
services for Company for the period and upon the other terms and conditions set
forth in this Agreement. Employee will report to the Board. Company will cause
Employee to be elected to its Board effective January 1, 2006.
2.2 Term. The Term of this Agreement shall commence on January 1, 2006 and
shall continue until terminated in accordance with this Agreement.
2.3 Position and Duties.
2.3.1 Service with Company. During the Term, Employee agrees to perform
such duties and responsibilities that are consistent with the position of a
senior executive officer holding Employee's titles and (a) as are set forth
for that position in the By-laws of the Company; (b) as set forth in the
position description for Company President and Chief Executive Officer (c)
as the Board shall assign to the Employee from time to time; and (d) that
the Employee undertakes or accepts consistent with Employee's position.
Employee acknowledges and agrees that, from time to time, Employee will be
required to perform duties with respect to one or more of the Company's
subsidiary or affiliate companies and that Employee will not be entitled to
any additional compensation for performing those duties.
Employee also agrees to serve, for any period for which Employee is
elected, as a director of Company; provided, however, that Employee
shall not be entitled to any additional compensation for serving as a
director.
Upon termination of Employee's employment, for whatever reason,
Employee agrees to resign immediately from the Company's Board of
Directors, if requested to do so.
Page 6 of 23
Employee understands that Employee's duties may include substantial
travel, and Employee agrees to engage in such travel as is required to
further Company's business objectives.
2.3.2 Performance of Duties. During the Term, Employee agrees to serve
Company faithfully and to the best of Employee's ability and to devote
Employee's full business time, attention and efforts to the business and
affairs of Company (exclusive of any period of vacation, sick, disability or
other leave to which Employee is entitled) during normal business hours.
(a) Employee will comply with all rules, policies and procedures of
Company, to the extent consistent with applicable law, as modified from time
to time, including without limitation, rules and procedures set forth in
Company's employee handbook, supervisor's manuals and operating manuals
provided, that to the extent such policies and procedures are inconsistent
with this Agreement, the provisions of this Agreement shall control.
(b) Employee will perform all of Employee's responsibilities in
compliance with all applicable laws and will use Employee's best efforts in
good faith to ensure that the operations that Employee manages are in
compliance with all applicable laws.
(c) Employee hereby confirms that Employee is under no contractual
commitments inconsistent with Employee's obligations set forth in this
Agreement and that during the Term, Employee will not render or perform
services for any other corporation, firm, entity or person that are
inconsistent with the provisions of this Agreement, whether or not such
activity is pursued for gain, profit or other pecuniary advantage.
(d) Employee agrees that, during the Term, Employee will not render or
perform any services for any other corporation, firm, social organization,
entity or person without the written consent of the Board. With Board
approval Employee shall be entitled to hold up to two (2) positions on the
Boards of Director of entities that do not compete with Company and shall be
entitled to engage in charitable enterprises, provided that Employee's
activities in connection with such Board of Director positions and/or
charitable enterprises do not in any way interfere with the performance of
Employee's duties to Company.
Article III. Compensation, Benefits and Expenses
3.1 Base Salary. Subject to the provisions of Article IV of this Agreement,
during the Term, Company shall pay Employee a Base Salary at an annual rate that
is not less than Two Hundred Seventy Five Thousand Dollars ($275,000.00) or such
higher annual rate as may from time to time be approved by the Board, such Base
Salary to be paid in substantially equal regular periodic payments, less
deductions and withholdings, in accordance with Company's regular payroll
procedures, policies and practices as such may be modified from time to time.
Employee shall be eligible, at the Board's sole discretion, for annual salary
Page 7 of 23
increases consistent with such procedures, policies and practices. Employee's
Base Salary shall be reviewed for potential adjustment on the basis of
performance from time to time, but in all events not less frequently than
annually.
3.2 Incentive Compensation. Employee will participate in the IntegraMed
America Executive Incentive Compensation Program ("EICP") in accordance with
which Employee may earn an annual incentive bonus equal to 60% of Employee's
Base Salary for the applicable EICP year ("Bonus"). The terms of the annual
incentive bonus plan, including the criteria upon which Employee can earn the
maximum bonus, will be determined annually by the Board. As determined by the
Board, Employee may also participate in other bonus or incentive plans adopted
by Company that are applicable to Employee's position, as they may be changed
from time to time, but nothing herein shall require the adoption or maintenance
of any such plan.
3.3 Restricted Stock Grant. The Board will approve a grant to Employee
equivalent to $400,000.00 worth of shares of Company stock in accordance with
(a) the terms of the Company's 2000 Long-Term Incentive Compensation Plan (the
"Plan"), based on the closing price of Company's common stock traded on the
first trading day in January 2006; provided, however, in no event will Employee
be granted more than 50,000 shares of Company stock as set forth in the Plan,
and (b) a restricted stock agreement to be entered into between the Employee and
Company. Such shares will vest quarterly over a 10 year-period; provided,
however, in the event of death, Disability, termination for Good Reason,
termination without cause, or cessation of the Company's business, such shares
shall vest immediately upon the occurrence of such event.
3.4 Additional Equity Grants. Employee will be eligible for consideration
for additional grants of equity in the Company and in conformity with the
practices and procedures of the Company as in effect at such time.
3.5 Participation in Benefits. During the Term of Employee's employment by
Company, Employee shall be entitled to participate in the employee benefits
offered generally by Company to its employees, to the extent that Employee's
position, tenure, salary, health and other qualifications make Employee eligible
to participate. Without limiting the foregoing, Employee shall be eligible to
participate in any pension plan, or group life, health or accident insurance or
any such other plan or policy that may presently be in effect or that may
hereafter be adopted by the Company for the benefit of its employees and
corporate officers generally. Employee's participation in such benefits shall be
subject to the terms of the applicable plans, as the same may be amended from
time to time. Company does not guarantee the adoption or continuance of any
particular employee benefit during Employee's employment, and nothing in this
Agreement is intended to, or shall in any way restrict the right of Company, to
amend, modify or terminate any of its benefits during the Term of this
Agreement.
3.6 Expenses. In accordance with Company's normal policies for expense
reimbursement, Company will reimburse Employee for all reasonable and necessary
expenses incurred by Employee in the performance of Employee's duties under this
Page 8 of 23
Agreement, subject to the presentment of receipts or other documentation
acceptable to Company.
3.7 Relocation Expenses. Company shall reimburse Employee for reasonable and
customary relocation expenses, including, but not limited to, real estate
commissions and closing costs associated with Employee's sale of existing
residence and the costs of packing, loading, transporting, storing (as required)
and unloading of Employee's existing personal property from present residence to
new residence that is within 40 miles of the Company's corporate offices;
provided, however, that Company's obligation under this Section shall not exceed
$40,000.00 ("Relocation Allowance") and such relocation shall be completed prior
to June 30, 2007. Such reimbursements shall be made by Company on a timely basis
upon submission by Employee of receipts evidencing such expenses. It is further
agreed that the Relocation Allowance shall be grossed-up for tax purposes so
that the net effort to Employee is the receipt of the Relocation Allowance on a
tax-free basis.
3.8 De Minimis Personal Expenses. Employee shall be permitted to use Company
equipment, such as telephones, copy machines and facsimile machines, for de
minimis personal matters.
3.9 Office and Facilities. During the Term, Company shall furnish Employee
with office space at least equivalent in size, quality, furnishings and in other
respects to the office space provided as of the date of this Agreement, and
full-time secretarial service, together with such other reasonable facilities
and services as are suitable, necessary and appropriate.
3.10 Automobile or Automobile Allowance. Company shall provide to Employee a
Company car, with a cost to the Company not to exceed $1,000.00 per month or an
automobile allowance of $1,000.00 per month, less legally required or legally
authorized deductions and withholdings, during the Term.
3.11 Legal Fees. Company shall reimburse Employee within 30 days of the
parties' execution of this Agreement, up to $1,500.00 for reasonable legal fees
incurred by Employee in connection with Employee's review of this Agreement,
subject to Employee's timely submission of acceptable documentation of such fees
in accordance with Company's normal policies for expense verification.
3.12 Vacation. For the duration of Employee's employment under this
Agreement, Employee will be provided such holidays, sick leave and vacation as
Company makes available to its management level employees generally.
3.13 Right of Set-off. By accepting this Agreement, Employee consents
to a deduction from any amounts Company owes Employee from time to time
(including amounts owed to Employee as wages or other compensation, fringe
benefits or vacation pay, as well as any other amounts owed to Employee by
Company), to the extent of the amounts Employee may owe to Company. Whether
or not Company elects to make any set-off in whole or in part, if Company
Page 9 of 23
does not recover by means of set-off the full amount Employee may owe it,
calculated as set forth above, Employee agrees to pay immediately the unpaid
balance to Company.
Article IV. Termination and Compensation Following Termination
4.1 Termination. Subject to the respective continuing obligations of the
parties under this Agreement, the Term and Employee's employment hereunder may
be terminated prior to the end of the Term under the following circumstances:
4.1.1 Cessation of Company Business. In the event Company ceases doing
business.
4.1.2 Mutual Agreement. By mutual written agreement of the parties at
any time.
4.1.3 Death. In the event of Employee's death in accordance with the
provisions of section 4.4 (b).
4.1.4 Employee's Disability. In the event Employee becomes disabled, as
defined in Section 1.8.
4.1.5 Termination by Company for Cause. Company may terminate this
Agreement and Employee's employment hereunder for Cause at any time after
providing written notice to Employee.
(a) Notwithstanding the foregoing, a termination for Cause, if
susceptible of cure, shall not become effective unless Employee fails to
cure such failure to perform within 30 days after written notice from
Company, such notice to describe such failure to perform and identify what
reasonable actions shall be required to cure such failure to perform.
(b) Notwithstanding the foregoing, Employee shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered
to Employee a copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board at a meeting
of the Board called and held for the purpose (after reasonable notice to
Employee and an opportunity for Employee, together with Employee's counsel,
to be heard before the Board), finding that in the good faith opinion of the
Board, Employee was guilty of the conduct set forth above in this Section
and specifying the particulars thereof in detail.
(c) With respect to any termination for Cause, should Employee object to
the existence of Cause, Employee and Company shall submit the matter to a
mutually agreed-upon neutral decision maker, who shall be an attorney with
at least 10 years employment law experience, to decide whether Cause exists.
If Employee and Company cannot agree upon such a neutral decision maker,
each shall appoint one neutral decision maker, who shall be an attorney with
at least 10 years employment law experience, and the two neutral decision
makers so chosen shall choose a third neutral decision maker, who also shall
be an attorney with at least 10 years employment law experience. If Cause is
Page 10 of 23
found by the neutral decision maker(s) not to exist, Company shall pay the
fee(s) of the decision maker(s); if Cause is found to exist, Employee shall
pay such fees. The prevailing party shall also be entitled to its costs and
expenses, including legal fees. If Cause is found not to exist, Employee's
termination shall be considered as for reasons other than Cause.
4.1.6 Termination By Employee For Good Reason. Employee may terminate
Employee's employment hereunder for Good Reason. Employee shall have Good
Reason to terminate Employee's employment only if (i) within 10 days
following the Employee's actual knowledge of the event which the Employee
determines constitutes Good Reason, Employee notifies the Company in writing
that Employee has determined Good Reason exists and specifies the event
creating Good Reason, and (ii) following receipt of such notice, the Company
fails to remedy such event within 30 days. If either condition is not met,
the Employee shall not have a Good Reason to terminate his employment.
4.1.7 Termination by Company Without Cause. Company may terminate
Employee's employment hereunder at any time for any reason, including a
Change in Control, or no reason and with 30 days written notice.
4.1.8 Termination by Employee Without Good Reason. The Employee may
terminate Employee's employment hereunder at any time for any reason,
including Change in Control, or no reason and with 30 days written notice.
Company may, at its option, accelerate such termination date to any date at
least two weeks after Employee's notice of termination. Company may also, at
its option, relieve Employee of all duties and authority after notice of
termination has been provided.
4.2 Effect of Termination. Notwithstanding any termination of this Agreement
and/or Employee's employment with Company, Employee, in consideration of
Employee's employment hereunder to the date of such termination, shall remain
bound by the provisions of this Agreement that specifically relate to periods,
activities or obligations upon or subsequent to the termination of Employee's
employment, including, but not limited to, the covenants contained in Articles
V, VI and VII of this Agreement.
4.3 Surrender of Records and Property. Upon termination of Employee's
employment with Company, Employee shall deliver promptly to Company all records,
manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,
reports, computer disks, computer software, computer programs (including source
code, object code, on-line files, documentation, testing materials and plans and
reports), designs, drawings, sketches, devices, specifications, formulae, data,
tables or calculations or copies thereof, which are the property of Company or
any subsidiary or affiliate or which relate in any way to the business,
products, practices or techniques of Company or any Subsidiary or affiliate,
Page 11 of 23
Trade Secrets, Inventions, Confidential Information, Proprietary Information and
all other property of Company or any Subsidiary or affiliate. Employee may
retain copies of such materials provided Employee does not utilize the same in
violation of the provisions of this Agreement.
4.4 Compensation Following Termination. In the event that Employee's
employment hereunder is terminated, Employee shall be entitled only to the
following compensation and benefits upon such termination:
(a) Termination by Mutual Agreement or Employee For No Reason. In the
event that Employee's employment is terminated by reason of mutual agreement
or by the Employee for no reason, Company shall, within 14 calendar days
following the date of Employee's employment termination, pay to Employee any
amounts due to Employee for Base Salary through the date of employment
termination, together with any other unpaid and pro rata amounts to which
Employee is entitled as of the date of termination pursuant to Section 3.1
or 3.2 of this Agreement, including, without limitation, amounts that
Employee is entitled to under any benefit plan of the Company in accordance
with the terms of such plan. Employee will have no rights to any unvested
benefits or any other compensation or payments coming due after the date of
Employee's employment termination.
(b) Termination by Reason of Employee's Death or Disability. In the
event that Employee's employment is terminated by reason of Employee's death
or Disability, the Company shall, within 30 calendar days following the date
of Employee's employment termination, pay to Employee, Employee's spouse or
Employee's estate, as the case may be, any amounts due to Employee for Base
Salary through the date of employment termination, together with any other
unpaid and pro rata amounts to which Employee is entitled as of the date of
termination pursuant to Section 3.1 or 3.2 of this Agreement, including,
without limitation, amounts that Employee is entitled to under any benefit
plan of the Company in accordance with the terms of such plan. Employee will
have no rights to any unvested benefits or any other compensation or
payments coming due after the date of Employee's employment termination.
(c) Termination by Company for Cause or by Employee Without Good Reason.
If the Employee's employment is terminated by the Company for Cause or the
Employee voluntarily terminates employment without Good Reason, the Company
shall, within 14 calendar days following the date of Employee's employment
termination, pay to the Employee (i) any Base Salary earned but not paid
through the date of Employee's employment termination, plus (ii) the amount
of any other benefits to which Employee is legally entitled as of such date
under the terms and conditions of any benefit plans of the Company in which
Employee is participating as of such date, plus (iii) earned, but unpaid
Bonus, up to the date of termination, including any hold-back amount that
would have been paid at year end. The Company shall have no further
obligations under this Agreement.
Page 12 of 23
(d) Termination by Employee for Good Reason; Termination by the Company
Without Cause; Termination by Reason of Cessation of Company Business. In
the event that Employee's employment is terminated by Employee for Good
Reason or by the Company without Cause or by reason of cessation of the
Company's business, Company shall, within 30 calendar days following the
date of Employee's employment termination:
(i) any accrued but unpaid Base Salary (as determined pursuant to
Section 3.1) for services rendered to the date of termination;
(ii) any accrued but unpaid expenses required to be reimbursed
pursuant to Sections 3.8 and 3.9;
(iii) the pro-rata monetary equivalent of any unused vacation days
accrued to the date of termination;
(iv) a lump sum amount, less authorized and required withholdings,
due to Employee for Base Salary for a 12-month period following
termination; and
(v) the full amount of Employee's annual Bonus based on Employee's
then current Base Salary (without regard to the condition precedents
established by the EICP) for the year in which Employee is terminated,
plus any accrued, but unpaid Bonus and stock incentive compensation, if
any, for any fiscal year preceding such termination.
(vi) Upon payment of the amounts provided for in Section
4.4(d)(i)-(v), the Company shall have no further obligations under this
Agreement. As a condition for such payments, Employee shall execute and
deliver a written release to Company.
(e) Termination by Employee for Good Reason Following Change of Control;
Termination by the Company Without Cause Following Change of Control. In the
event that (i) Employee's employment is terminated either by Company without
Cause or by Employee for Good Reason, and (ii) a Change of Control (as
defined in Article I) has occurred within the 12-month period preceding the
date of such termination, Company shall pay the following amounts to
Employee within 30 days following Employee's termination:
(i) any accrued but unpaid Base Salary (as determined pursuant to
Section 3.1) for services rendered to the date of termination;
(ii) any accrued but unpaid expenses required to be reimbursed
pursuant to Sections 3.8 and 3.9;
(iii) the pro-rata monetary equivalent of any unused vacation days
accrued to the date of termination;
Page 13 of 23
(iv) a lump sum amount, less authorized and required withholdings,
due to Employee for Base Salary for a 24-month period following
termination; and
(v) twice the full amount of Employee's annual Bonus based on
Employee's then current Base Salary (without regard to the condition
precedents established by the EICP) for the year in which Employee is
terminated, plus any accrued, but unpaid Bonus and stock incentive
compensation, if any, for any fiscal year preceding such termination.
(vi) Upon payment of the amounts provided for in Section
4.4(e)(i)-(v), the Company shall have no further obligations under this
Agreement. As a condition for such payments, Employee shall execute and
deliver a written release to Company.
Employee shall not be entitled to any payment under clause (d) or (e)
above if Employee is or has at any time been in breach of any covenant contained
in Articles V, VI and VIII of this Agreement.
4.5 Benefits. Except as otherwise provided in this Agreement, the benefits
to which Employee (or, as applicable, Employee's spouse or estate) may be
entitled upon termination pursuant to the plans, policies and arrangements
specified Section 3.5 of this Agreement shall be determined and paid in
accordance with the terms of such plans, policies and arrangements.
4.6 No Mitigation Obligation. Employee shall not be required to mitigate
damages or the amount of any payment provided to Employee under Section 4.4 of
this Agreement by seeking other employment or otherwise, nor shall, the amount
of any payments provided to Employee under this Section 4.4 be reduced by any
compensation earned by Employee as the result of employment by another employer
after the termination of Employee's employment or otherwise.
4.7 No Other Benefits or Compensation. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee benefit or
fringe benefit plan applicable to Employee at the time of the termination of
Employee's employment, Employee shall have no right to receive any other
compensation or to participate in any other plan, arrangement or benefit, with
respect to any future period after such termination or resignation.
Article V. Confidential Information
5.1 Purpose and Scope. Company will, in the course of Employee's employment,
rely upon Employee for and impart and disclose to Employee in confidence
Confidential Information. Employee acknowledges that Company operates in a
competitive environment and that Company has an interest in protecting its
Confidential Information. In consideration of Employee's employment hereunder,
Employee agrees to (1) maintain the confidentiality of Company's Confidential
Information; (2) use Company's Confidential Information for the exclusive
Page 14 of 23
benefit of Company; (3) assign ownership of all Inventions to Company; and (4)
not to compete with Company. Employee further acknowledges and agrees that
Employee's employment hereunder, Employee's compensation and benefits,
Employee's access to Company's Confidential Information, Employee's access to
customers and other good and valuable consideration associated with Employee's
employment with Company, provide good and sufficient consideration for
Employee's obligations under this Agreement.
5.2 Confidential Information. Employee understands and agrees that as an
employee of Company, Employee will receive or contribute Confidential
Information. Employee agrees that at all times during the period of Employee's
employment and after the termination thereof for any reason whatsoever, Employee
shall keep secret Confidential Information and that Employee will not use or
make known the same to any person, firm or corporation without first obtaining
the written consent of Company. Employee acknowledges that Company's
Confidential Information constitutes a unique and valuable asset of Company and
represents a substantial investment of time and expense by Company and that any
disclosure or other use of such knowledge or information other than for the sole
benefit of Company would be wrongful and would cause irreparable harm to
Company. The foregoing obligations of confidentiality shall not apply to any
knowledge or information that is now published or that subsequently becomes
generally publicly known in the form in which it was obtained from Company,
other than as a direct or indirect result of the breach of this Agreement by
Employee.
5.3 Value to Company of the Confidential Information. Employee understands
and agrees that:
(a) the Confidential Information, whether or not developed by
Employee, shall at all times be Company's exclusive property;
(b) the Confidential Information has unique, unusual, original and
proprietary qualities and features that must remain private and
confidential;
(c) the Confidential Information is not generally available to the
public;
(d) the Confidential Information has been compiled and developed by
Company at great expense and over an extended period of time and is
continuously used in the business of Company;
(e) the Confidential Information gives Company a competitive
advantage over other businesses in its industry and has actual and
potential economic value to Company, all of which would be damaged or
destroyed if any of the Confidential Information were obtained by,
disclosed to or used by any person or entity other than Company;
(f) Employee's promises herein do not constitute an unreasonable
hardship to Employee in working for Company or in obtaining other
employment;
Page 15 of 23
(g) if Employee breaches any or all of the promises herein, Company
shall suffer immediate, material, immeasurable, continuing and
irreparable damage and harm, the remedies at law for Employee's breach
shall be inadequate (and Employee hereby waives the claim or defense
that an adequate remedy at law is available). Company shall be entitled
to injunctive relief against Employee in addition to any and all other
legal or equitable remedies (including, but not limited to, an action
and judgment for damages), and Employee hereby waives and relinquishes
any requirement that Company post a bond or other security for such
injunctive relief;
(h) the existence and economic survival of Company depend directly
upon Employee's adherence to Employee's promises made herein; and
(i) if Employee had not agreed to the restrictive promises herein
pertaining to Company, Company would not have employed Employee, would
not permit Employee to obtain and use the Confidential Information and
would not have signed this Agreement.
(b) Nondisclosure. At all times during Employee's employment and
thereafter, Employee will hold in the strictest confidence and will not
disclose, use, lecture upon or publish any of Company's Confidential
Information, except as such disclosure, use or publication may be disclosed
as a result of the legal process or subpoena, required in connection with
Employee's work for Company or unless Company expressly authorizes such
disclosure in writing. Employee will obtain Company's written approval
before publishing or submitting for publication any material (written,
verbal or otherwise) that relates to Employee's work at Company and/or
incorporates any Confidential Information. Employee hereby assigns to
Company any rights Employee may have or acquire in the Confidential
Information and recognize that all of the Confidential Information is and
shall be the sole property of Company and its successors and assigns.
(c) Return of Company Documents and Tangible Property. When Employee's
employment with Company comes to an end for any reason, or at any other time
Company so requests, Employee will immediately return to Company all records
and any compositions, articles, devices, equipment, software, programs and
other items that disclose or contain Confidential Information. This includes
all copies or specimens in Employee's possession whether prepared or made by
others or Employee.
(d) Third Party Information. Employee understands, in addition, that
Company has received and in the future will receive from third parties
confidential or Proprietary Information ("Third Party Information"), subject
to a duty on Company's part to maintain the confidentiality of such Third
Party Information and to use such Third Party Information only for certain
limited purposes. At all times during Employee's employment with Company and
thereafter, Employee will hold all Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such Third Party Information in connection with their work for
Company) or use, except in connection with Employee's work for Company, any
such Third Party Information unless expressly authorized by an officer of
Company in writing in advance
Page 16 of 23
Article VI. Inventions
6.1 Disclosure of Information. As part of Employee's duties to Company,
Employee agrees that during employment by Company and for a period of twelve
(12) months following termination of employment, for whatever reason, Employee
shall promptly disclose in writing to Company all Inventions, as defined in
Section 1.11, and whether or not reduced to practice, which are conceived,
developed, made or acquired by Employee, either individually or jointly with
others, and which relate to the business, products or services of Company or its
Affiliates, irrespective of whether Employee used Company's time or facilities
and irrespective of whether such Invention was conceived, developed, discovered
or acquired by Employee on the job, at home or elsewhere . This obligation
extends to all types of information, ideas and concepts, including information,
ideas and concepts relating to new types of services, corporate opportunities,
acquisition prospects, the identity of key representatives within acquisition
prospect organizations, prospective names or service marks for Company's
business activities and the like.
6.2 Assignment of Inventions. All Inventions developed during Employee's
period of employment and for a period of twelve (12) months following the
termination of employment, for whatever reason, are and shall be the sole and
exclusive property of Company. Furthermore, all drawings, memoranda, notes,
records, files, correspondence, manuals, models, specifications, computer
programs, maps and all other writings or materials of any type embodying such
information, ideas, concepts, improvements, discoveries and Inventions are and
shall be the sole and exclusive property of the Company. Employee hereby
specifically sells, assigns, transfers and conveys to Company all worldwide
right, title and interest in and to all such information, ideas, concepts,
improvements, discoveries or Inventions, and any United States or foreign
applications for patents, inventor's certificates or other industrial rights
that may be filed in respect thereof, including divisions, continuations,
continuations-in-part, reissues and/or extensions thereof, and applications for
registration of such names and service marks. Employee shall assist Company and
its nominee at all times during the period of employment and thereafter in the
protection of such information, ideas, concepts, improvements, discoveries or
Inventions, both in the United States and all foreign countries, which
assistance shall include, but shall not be limited to, the execution of all
lawful oaths and all assignment documents requested by Company or its nominee in
connection with the preparation, prosecution, issuance or enforcement of any
application for United States or foreign letters patent, including divisions,
continuations, continuations-in-part, reissues and/or extensions thereof, and
any application for the registration of such names and service marks.
6.3 Prior Inventions. If Employee made, conceived or acquired any Inventions
before Company employed Employee, Employee shall list them on an attachment to
this Agreement, and they shall remain Employee's, and not Company's, property.
Page 17 of 23
6.4 Works for Hire. Employee acknowledges that all original works of
authorship that are made by Employee (solely or jointly with others) within the
scope of Employee's employment with Company and that are protectable by
copyright shall be deemed to be "works made for hire," pursuant to the United
States Copyright Act (17 U.S.C. Section 101) and all interest, right and title
to such works made for hire shall be owned by Company.
6.5 Enforcement of Proprietary Rights; Power of Attorney. Employee will
assist Company in every proper way to obtain, and from time to time enforce, all
United States and foreign proprietary rights relating to the Inventions or
Company Inventions in any and all countries. To that end, Employee will execute,
verify and deliver such documents and perform such other acts (including
appearances as a witness) as the Company may reasonably request for use in
applying for, obtaining, perfecting, evidencing, sustaining and enforcing such
proprietary rights and the assignment thereof. In addition, the Employee will
execute, verify and deliver assignments of such proprietary rights to Company or
its designee. Employee's obligation to assist Company with respect to
Proprietary Rights relating to Inventions or Company Inventions in any and all
countries shall continue beyond the termination of Employee's employment, but
Company shall compensate Employee at a reasonable rate after the termination of
Employee's employment with Company for the time actually spent by Employee
assisting Company at its request. In the event Company is unable for any reason,
after reasonable effort, to secure Employee's signature on any document or
instrument needed in connection with the actions specified above in this
Section, Employee hereby irrevocably designates and appoints Company and its
duly authorized officers and agents as Employee's agent and attorney in fact,
which appointment is coupled with an interest, to act for and on Employee's
behalf to execute, verify and file any such documents or instruments and to do
all other lawfully permitted acts to further the purposes of this Section 6.5
with the same legal force and effect as if executed by Employee. Employee hereby
waives and quitclaims to Company any and all claims, of any nature whatsoever,
that Employee now has or may hereafter have for infringement of any proprietary
rights or Company Inventions assigned hereunder to Company.
Article VII. Non-competition and Non-solicitation
7.1 Non-competition Covenant. Company and Employee agree that, solely due to
Employee's position with Company, Employee will have access to certain
Confidential Information of Company. Employee acknowledges that Company will
only release this Confidential Information upon the receipt of assurances that
Employee will not use the information to Company's disadvantage and,
accordingly, agrees to the following provisions.
(a) Agreement Not to Compete. During the Term of Employee's employment by
Company, and for a period of 24 consecutive months from the date of termination
of such employment for whatever reason (whether occasioned by Employee or
Page 18 of 23
Company), Employee shall not, directly or indirectly, in any place in the United
States, render services to any conflicting organization, or engage in
competition with Company, in any manner or capacity, nor direct any other
individual or business enterprise to engage in competition with Company in any
manner or capacity, (e.g., as an advisor, principal, agent, partner, officer,
director, stockholder of more than 1% of the outstanding shares of the capital
stock of a publicly traded company, employee, member of any association or
limited liability company or otherwise) on any products competitive with
Company's existing products, any products competitive with Company's announced
products or any products competitive with Company's pending products that have
not yet been announced but which Employee has, or should have, actual or
constructive knowledge. For the purposes of this Section, "conflicting
organization" shall be defined as any person, corporation or entity that
competes with any product, process or service, in existence or under
development, of Company.
(b) Agreement Not to Solicit. During the Term of Employee's employment by
Company, and for a period of 24 consecutive months from the date of termination
of such employment for whatever reason (whether occasioned by Employee or
Company), Employee shall not, directly or indirectly, divert, solicit or accept
business from any client or prospective client of Company that was solicited or
serviced directly by Employee, or that Employee supervised, directly or
indirectly, in whole or in part, the solicitation or services activities related
to such clients or prospects. Employee shall not, directly or indirectly, in any
way interfere, or attempt to interfere, with Company's relationships with any of
its actual or potential vendors or suppliers.
(c) Agreement Not to Solicit Employees. During the Term of Employee's employment
by Company, and for a period of 24 consecutive months from the date of
termination of such employment, for whatever reason (whether occasioned by
Employee or Company), Employee shall not, directly or indirectly, hire, engage
or solicit any person, who was an employee of Company at the time of the
termination of Employee's employment by Company, or whose employment terminated
within 12 months prior to Employee's termination of employment and whom Employee
worked or associated with, or supervised, in any manner or capacity, including,
but not limited to, as an employee, agent, consultant, partner, member, manager,
officer, director, shareholder or otherwise.
7.2 Acknowledgment. Employee agrees that the restrictions and agreements
contained in this Article VII are reasonable and necessary to protect the
legitimate interests of Company and that any violation of this Article VII will
cause substantial and irreparable harm to Company that would not be quantifiable
and for which no adequate remedy would exist at law. Employee further
acknowledges that Employee has requested, or has had the opportunity to request,
that legal counsel review this Agreement, and having exhausted such right,
agrees to the terms herein without reservation. Accordingly, Employee authorizes
the issuance of injunctive relief by any court of appropriate jurisdiction,
without the requirement of posting bond, for any violation of this Article VII.
7.3 Blue Pencil. In the event that any of the covenants in this Article VII
shall be determined by any court of competent jurisdiction to be unenforceable
by reason of extending for too great a period of time or over too great a
geographical area or by reason of being too extensive in any other respect, it
shall be interpreted to extend over the maximum period of time for which it may
Page 19 of 23
be enforceable and to the maximum extent in all other respects as to which it
may be enforceable, and enforced as so interpreted, all as determined by such
court in such action. Employee acknowledges the uncertainty of the law in this
respect and expressly stipulates that this Agreement is to be given the
construction that renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under applicable law.
Article VIII. Miscellaneous Provisions
8.1 Tax Consequences. Employee acknowledges and agrees that Company has made
no representations or warranties with respect to the tax consequences of any of
the payments or other consideration provided by Company to Employee under the
terms of this Agreement, and that Employee is solely responsible for Employee's
compliance with any and all laws applicable to such payments or other
consideration.
8.2 Withholding Taxes. Company may take such action as it deems appropriate
to insure that all applicable federal, state, city and other payroll,
withholding, income or other taxes arising from any compensation, benefits or
any other payments made pursuant to this Agreement, or any other contract,
agreement or understanding that relates, in whole or in part, to Employee's
employment with Company, are withheld or collected from Employee.
8.3 Company Remedies. Employee acknowledges and agrees that the restrictions
and agreements contained in this Agreement are reasonable and necessary to
protect the legitimate interests of Company, that the services to be rendered by
Employee hereunder are of a special, unique and extraordinary character, that it
would be difficult to replace such services and that any violation of Article V,
VI or VII of this Agreement would be highly injurious to Company, that
Employee's violation of any of Article V, VI and VII of this Agreement would
cause Employer irreparable harm that would not be adequately compensated by
monetary damages and that the remedy at law for any breach of any of the
provisions of Articles V, VI and VIII will be inadequate. Employee further
acknowledges that Employee has requested, or has had the opportunity to request,
that legal counsel review this Agreement, and having exhausted such right,
agrees to the terms herein without reservation.
8.4 Assignment. This Agreement shall not be assignable, in whole or in part,
by any party without the written consent of the other party and any purported or
attempted assignment or transfer of this Agreement or any of Employee's duties,
responsibilities or obligations hereunder shall be void. This Agreement is
binding upon Employee, Employee's heirs and personal representatives. This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
8.5 Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing, shall be deemed to have been duly given on
the date of service if personally served on the parties to whom notice is to be
given, or on the second day after mailing if mailed to the parties to whom
Page 20 of 23
notice is given, by first class mail United States registered or certified mail,
return receipt requested, postage prepaid and properly addressed as follows:
If to Company: General Counsel
IntegraMed America, Inc.
Two Manhattanville Road
Purchase, New York 10577
If to Employee: Jay Higham
21 Rose Lane
Sandy Hook, Connecticut 06482 or
(Last known address of Employee on record at
the Company)
Any party may change the address for the purpose of this Section by giving
the other written notice of the new address in the manner set forth above.
8.6 Governing Law. The validity, interpretation, performance and enforcement
of this Agreement shall be governed by the laws of the State of New York,
without regard to conflicts of laws principles thereof.
8.7 Construction. Notwithstanding the general rules of construction, both
Company and Employee acknowledge that both parties were given an equal
opportunity to negotiate the terms and conditions contained in this Agreement,
and agree that the identity of the drafter of this Agreement is not relevant to
any interpretation of the terms and conditions of this Agreement.
8.8 Severability. In the event any provision of this Agreement (or portion
thereof) shall be held illegal or invalid for any reason, said illegality or
invalidity shall not in any way affect the legality or validity of any other
provision of this Agreement. To the extent any provision (or portion thereof) of
this Agreement shall be determined to be invalid or unenforceable in any
jurisdiction, such provision (or portion thereof) shall be deemed to be deleted
from this Agreement as to such jurisdiction only, and the validity and
enforceability of the remainder of such provision and of this Agreement shall be
unaffected.
8.9 Arbitration. Except as provided in subsections 4.1(b) and 8.9(b), any
claims or disputes of any nature between the parties arising from or related to
the performance, breach, termination, expiration, application or meaning of this
Agreement shall be resolved exclusively by arbitration before the American
Arbitration Association in Westchester County, New York pursuant to the
Association's rules for commercial arbitration.
(a) The decision of the arbitrator(s) shall be final and binding upon
both parties. Judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. In the event of submission
of any dispute to arbitration, each party shall, not later than thirty (30)
days prior to the date set for hearing, provide to the other party and to
the arbitrator(s) a copy of all exhibits upon which the party intends to
rely at the hearing and a list of all persons whom each party intends to
call as witnesses at the hearing.
Page 21 of 23
(b) This section shall have no application to claims by Company
asserting violation of or seeking to enforce, by injunction or otherwise,
the terms of Articles V, VI and VII above. Such claims may be maintained by
Company in a lawsuit before a court of competent jurisdiction.
8.10 Disclosure. Employee agrees fully and completely to reveal the terms of
this Agreement to any future employer or potential employer of Employee and
authorizes Company, at its election, to make such disclosure.
8.11 Entire Agreement. This is the final, complete and exclusive agreement
of the parties and sets forth the entire agreement between Company and Employee
with respect to Employee's employment by Company, and there are no undertakings,
covenants or commitments other than as set forth therein. The Agreement may not
be altered or amended, except by a writing executed by the party against whom
such alteration or amendment is to be enforced. This Agreement supersedes,
terminates, replaces and supplants any and all prior understandings or
agreements between the parties relating in any way to the hiring or employment
of Employee by Company.
8.12 Counterparts. This Agreement may be simultaneously executed in any
number of counterparts, and such counterparts executed and delivered, each as an
original, shall constitute but one in the same instrument.
8.13 Captions and Headings. The captions and paragraph headings used in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
8.14 Survival. The parties expressly acknowledge and agree that the
provisions of this Agreement that by their express or implied terms extend
beyond the expiration of this Agreement or the termination of Employee's
employment under this Agreement, shall continue in full force and effect,
notwithstanding Employee's termination of employment under this Agreement or the
expiration of this Agreement.
8.15 Waivers. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right or remedy
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by any related document
or by law. No single or partial waiver of rights or remedies hereunder, nor any
course of conduct of the parties, shall be construed as a waiver of rights or
remedies by either party (other than as expressly and specifically waived).
8.16 Reliance by Third Parties. This Agreement is intended for the sole and
exclusive benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns, and
no other person or entity shall have any right to rely on this Agreement or to
Page 22 of 23
claim or derive any benefit therefrom absent the express written consent of the
party to be charged with such reliance or benefits.
8.17 No Conflicting Obligations. Employee represents that Employee's
performance of all the terms of this Agreement and as an employee of Company
does not and will not breach any agreement to keep in confidence information
acquired by Employee in confidence or in trust prior to Employee's employment
with Company. Employee has not entered into, and Employee agrees not to enter
into, any agreement, either written or oral, in conflict with this Agreement.
8.18 Representation of Employee. Employee represents and warrants to Company
that Employee is free to enter into this Agreement and has no contract,
commitment, arrangement or understanding to or with any party that restrains or
is in conflict with Employee's performance of the covenants, services and duties
provided for in this Agreement. Employee agrees to indemnify Company and to hold
it harmless against any and all liabilities or claims arising out of any
unauthorized act or acts by Employee that, the foregoing representation and
warranty to the contrary notwithstanding, are in violation, or constitute a
breach, of any such contract, commitment, arrangement or understanding.
8.19 Read and Understood. Employee has read this Agreement carefully and
understands each of its terms and conditions. Employee has sought independent
legal counsel of Employee's choice to the extent Employee deemed such advice
necessary in connection with the review and execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
INTEGRAMED AMERICA, INC.
By: /s/Elizabeth E. Tallett
------------------------------------------------------------
Elizabeth E. Tallett, Chairperson, Compensation Committee
Board of Directors
By:/s/ John W. Hlywak, Jr.
-------------------------------------------------------------
John W. Hlywak, Jr. Sr. Vice President & CFO
EMPLOYEE:
/s/ Jay Highsm
- ---------------------------------------
Jay Higham
Page 23 of 23