EX-4.2
EXHIBIT 4.2
EMPLOYMENT/CONSULTING AGREEMENT DATED AS OF January 1, 1998
AND NOVEMBER 16, 1999 BETWEEN THE COMPANY AND MICHAEL J. BLACK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter the "Agreement") is made as if
entered into as of the 1st day of January, 1998 by and between Integrated
Healthcare Systems, Inc., a Delaware corporation and any and all subsidiaries
(hereinafter the "Company"); and Michael J. Black, a Maryland resident
(hereinafter "Executive").
WITNESSETH
The Company and Executive hereby agree as follows:
1) Retention. The Company hereby engages the Executive to render his
services to perform fully the duties to the Company called for hereunder during
the terms of this Agreement, and the Executive hereby accepts such employment
and agrees to render all services and perform such duties called for hereunder
to the best of his ability and to devote such time, energies and skills to such
services and duties as are required to perform such service and duties.
2) Duties and Services. (a) Executive shall serve as Chairman and Chief
Executive Officer of the Company. Executive shall perform such duties and
services as are customarily performed by an official in these capacities and
such other functions as may from time to time be designated by the Board of
Directors of the Company consistent with the above office. Executive shall
report directly to the Board of Directors of the Company.
(b) At the direction of the Board of Directors of the Company,
Executive may be assigned different and/or additional duties for either the
Company or any subsidiary of the Company; provided, however, that the nature of
any and all duties shall be similar in terms of responsibility and prestige to
the nature of the duties previously performed by Executive under the terms of
this Agreement.
In the event that such different and/or additional duties are assigned to the
Executive, Executive shall be entitled to additional compensation only in the
event that such duties require him to undertake greater responsibility than he
had prior to the assignment of such duties.
3) Term. Subject only to Sections 5 and 6 hereof, the term of the
Agreement shall commence on the date hereof and shall terminate on December 31,
2000; provided, however, that at the option of the Company by written notice to
the Executive not less than thirty (30) days prior to the expiration date of
this Agreement, the term of this Agreement may be extended for a period of one
year to December 31, 2001, and at the additional option of the Company by
written notice to the Executive not less than thirty (30) days prior to the
extended expiration date of this Agreement the term of this Agreement may be
further extended for a period of one year to December 31, 2002.
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4) Consideration. As full compensation for his services hereunder, the
Company agrees to pay the Executive, and the Executive agrees to accept the
following:
(a) A salary computed at the initial rate of One Hundred Forty
Five Thousand Dollars ($145,000.00 ) per annum, payable in such installments as
salaries are paid to other executive personnel of the Company. Upon approval of
the Board of Directors of the Company, the initial salary as provided for in
this Section 4(a) may be increased in such amount as shall be determined by the
Board of Directors of the Company, in its sole discretion.
(b) The Executive shall be entitled to reimbursement of
authorized business expenses incurred in connection with the conduct of the
Company's business. The authorized costs, record keeping and reimbursement shall
conform to the Company's standard policy with regard thereto established by the
Board of Directors of the Company from time to time.
(c) In the event the Company implements a 401(k) plan, the
Executive shall be entitled to be a participant in such plan. The Executive
shall be entitled to life insurance, medical insurance, disability insurance and
other fringe benefits in accordance with standard policy affecting senior
Company executives, if any, as established by the Board of Directors of the
Company from time to time, including, without limitation, any fringe benefits
more specifically described herein.
(d) Executive shall be entitled to 20 days of paid vacation
each fiscal year, in addition to those holidays normally established for all
employees of the Company, which vacation shall not be carried over from year to
year, but Executive shall be entitled to compensation for any accrued but unpaid
vacation at the earlier of the end of each fiscal year of the Company, or the
termination of this Agreement, as provided herein.
(e) In the event the Company adopts a stock option plan for
the benefit of its employees and the employees of its subsidiary corporations,
upon the adoption of such stock option plan, Executive will be a participant in
the plan. Until such time as the Company does adopt a qualified stock option
plan, the Executive is entitled to receive a minimum of 100,000 and up to
250,000 warrants per year of his employment at an exercise price not less than
the most recent issued warrant by the Company. Should there be a change in
control of the Company (change of control is herein defined as the issuance of
new shares of the Company's common stock in an amount greater than 50% of the
number of outstanding shares of the Company's common stock as of the date of
this agreement), and prior to such change of control, the Company agrees to
accept as payment for the exercise of any outstanding warrants in the
Executive's possession a promissory note issued by the Executive to the Company,
payable in twenty four months from the date of issuance of the promissory note
with an interest rate of six percent (6%) per annum.
5) Termination for Cause. The Company may terminate Executive's
employment hereunder, immediately upon written notice to executive, for "cause,"
as hereinafter defined, in which event the Company shall pay Executive's
compensation pursuant to Section 4 hereof through the date of such written
notice of termination, and the Company shall continue any medical, disability
and life insurance provided pursuant to Section 4(c) for ninety days after the
effective date of such termination. For purposes of
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this Agreement, "cause" for termination of the Executive `s employment shall
exist only if:
(a) Executive repeatedly breaches any of the material terms or
conditions of the duties contained in this Agreement, which breaches shall
remain uncured by the Executive for a period of sixty (60) days after
Executive's receipt of written notice thereof from the Board of Directors
alleging with specificity such breaches and the specific actions necessary to
remedy same:
(b) Executive's willful refusal to follow written directions
of the Company's Board of Directors to perform duties consistent with those
described in Section 2 of this Agreement, which refusal is not cured within
sixty(60)days of Executive's receipt of written notice hereof form the Board of
Directors alleging with specificity such refusals and the specific actions
necessary to remedy same: or
(c) The voluntary resignation by Executive as an employee
of the Company.
In the event that the Executive contests, in any court of competent
jurisdiction, the actions of the Company in terminating his employment under
this Agreement for "cause", then the Company agrees to pay into the registry of
such court the amount of the Executive's salary due pursuant to Section 4(a)
from the date of Executive's termination to the date of filing of the court
action, and continue to make such payments, and to continue medical, life and
disability insurance provided pursuant to Section 4(c) during the pendency of
such action, for the remainder of the term of this Agreement. In the event that
a court of competent jurisdiction, with all periods of appeal having expired
thereon, determines that the Company shall have wrongfully terminated the
employment of the Executive hereunder, then the termination shall be treated as
a termination without cause pursuant to Section 6 of this Agreement and the
Executive shall be paid out of the registry of the court the full amount of back
salary from the date of such wrongful termination and in addition, the Company
shall pay to the Executive all remaining payments due to Executive for the
remainder of the term hereof, together with the Executive" reasonable attorney"
fees incurred in such action, and shall continue medical, life and disability
insurance provided pursuant to Section 4(c) for the remainder of the term of
this Agreement (if any) which sum the Executive shall accept as full liquidated
damages (and note as a penalty) arising out of the Company's breach hereof and
in lieu of all other rights and remedies then available to the Executive arising
therefrom, all of which are hereby knowingly waived by the Executive. In the
event that a court of competent jurisdiction, with all periods of appeal having
expired thereon, determines that the Company shall not have wrongfully
terminated the employment of the Executive hereunder, then at that time the
Company shall be entitled to the immediate return of all funds paid into the
registry of the court pursuant to this paragraph and shall be entitled to
discontinue thereafter medical, life and disability insurance benefits under
Section 4(c).
6) Termination Without Cause.
(a) This agreement may be terminated by the Company without
cause upon ninety (90) days written notice to Executive, provided, however, that
the Company shall continue the compensation payments as set forth in Section
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4 hereof, including all benefits, and full payment for all vacation days, for
the remainder of the term of the Agreement.
(b) This Agreement shall terminate upon the death of the
Executive. Upon the death of the Executive, the Company shall pay the
compensation pursuant to Section 4(a) hereof for one hundred eighty (180) days
after the death of the Executive to the estate of the Executive.
7) Inventions. Executive agrees, in consideration of his employment,
that all inventions, trade secrets and other ideas and processes that may be
patented or treated as trade secrets, whether heretofore conceived by him or
conceived by him during his employment by the Company, insofar as they relate to
the business of the Company or to any technology applied or applicable in such
business, shall be and remain the exclusive property of the Company.
8) Conflicting Obligation; Competition
(a) During the term of this Agreement, Executive shall not,
directly or indirectly, alone or as a partner, officer, director or controlling
stockholder of any other institution, be engaged in any other commercial
activity or continue to assume other commercial affiliations without the written
consent of the Board of Directors of the Company.
(b) During the term of the Agreement and for a period of one
year following the termination or expiration of his employment, executive shall
not, directly of indirectly, own, manage, operate, control, be employed by, or
participate in the ownership, management, operation, or control of any business
similar to the business conducted by the Company at the time of such termination
or expiration.
(c) During the term of this Agreement and for a period of two
years following the termination or expiration of his employment, Executive shall
not, directly or indirectly, solicit business of a type then provided by the
Company from any person who is then or has been within a period of two years
from the date of such termination or expiration a customer of the Company.
(d) Executive further agrees that he will not, for a period of
one year after termination of his employment, hire or employ, in any capacity in
any business in which he shall be interested as a proprietor, partner or
stockholder of a corporation engaged in any business competitive with that of
the Company, any person who shall have been an employee of the Company within
the one year proceeding such employment.
(e) The covenants set forth in the Section 8 shall be
construed as an agreement independent of any provisions of this Agreement or any
other agreement between the Company and Executive and the existence of any
claim, defense or cause of action by Executive against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
enforcement by the Company of the provisions of this Section 8.
9) Propriety Information. Executive recognizes that, on account of and
in connection with his employment, he will gain access to and have possession of
(i) the names and addresses of the Company's clients and customers and written
compilations thereof, (ii) financial information
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relating to the Company, (iii) information for and about potential acquisitions
of other businesses (iv) other information about the conduct of the Company's
business. Executive hereby recognizes such information about the conduct of the
Company, and agrees not to reveal such information to third parties except with
the Company's written consent, or as may be necessary in the ordinary course of
performing Executive's duties for the Company or as otherwise directed by the
Company, and agrees to turn over to the Company all such records, compilations,
files, and memoranda, to the Company upon termination of his employment, and all
copies thereof, keeping no such copies for him.
10) Indemnification. The Company agrees to indemnify and hold the
Executive harmless from and against all claims, damages, losses, liabilities and
expenses as the same are incurred (including any legal or other expenses
incurred in the defense or litigation, defending against any such claim, damage,
loss, or liability or any action in respect thereof), relating to or arising out
of the Executive's employment with the Company, including but not limited to the
Company's former subsidiary, Integrated Systems Technology,Inc.
11) Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the employment of the Executive by the
Company and supersedes any and all previous agreements regarding Executive's
employment with the Company provided, however, that the Executive shall be
entitled to receive and Company hereby agrees to pay the Executive, any deferred
or accrued salary and expenses reflected on the books of the Company as of the
date hereof and due to Executive, notwithstanding the termination of the
previous agreements regarding Executive's employment with the Company.
12) Successors and Assigns. The obligations and rights of the Executive
shall inure to the benefit of and shall be binding upon him and his personal
representatives, and the obligations and rights of the Company shall inure to
the benefit of and shall be binding upon it and its successors and assigns.
13) Interpretation. When the context in which words are used in this
Agreement indicates that such is the intent, the singular shall include the
plural, the plural shall include the singular, and the masculine shall include
the feminine and the neuter.
14) Validity of Agreement. In the event any sentence or paragraph of
this Agreement is declared by a court of competent jurisdiction to be invalid,
void, or unenforceable, such sentence or paragraph shall be deemed amended to
conform to applicable laws as to be valid and enforceable to the fullest extent
possible or, if it cannot be so amended without materially altering the
intention of the parities as expressed herein, it shall be deemed severed from
the remainder of this Agreement and the balance of the Agreement shall remain in
full force and effect.
15) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
under seal, as of the date and year first set forth above.
"EXECUTIVE"
By: /s Michael J. Black
-----------------------------------
Michael J. Black
"Company"
INTEGRATED HEALTHCARE SYSTEMS, INC.
a Delaware Corporation
By: /s Alan W. Grofe
President
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AMENDMENT TO EMPLOYMENT AGREEMENT
Michael J. Black
1220 Crummell Avenue
Annapolis, MD 21403
November 16, 1999
Douglas A. Cohn , Chief Executive Officer
Alan W. Grofe, President
H Quotient, Inc.
12030 Sunrise Valley Drive
Suite 205
Reston, VA 20191
Gentlemen:
With this letter, I propose the following changes to my employment
agreement with H Quotient (successor in interest to Integrated Healthcare
Systems, Inc,):
1) That the capacity under which I work with H Quotient, Inc. be changed
from Chief Executive Officer to Chief Financial Officer with reporting to the
Chief Executive Officer.
2) The term of employment under this agreement be to December 31, 2000.
3) That the employment structure be changed to a consulting capacity at
$10,000 per month from an annual salary of $145,000.
All other terms and conditions would remain intact as if no change had
occurred.
If this is acceptable, please indicate your acceptance where appropriate
below.
Sincerely,
By: /s/ Michael J. Black
------------------------
Michael J. Black
Agreed to and accepted by:
By: /s Douglas A. Cohn
- -----------------------
Douglas A, Cohn,
Chief Executive Officer
of HoQuotient, Inc.
By: /s Alan W. Grofe
- ------------------------
Alan W. Grofe, President
of HoQuotient, Inc.
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