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EXHIBIT 10.29
ENTERPRISING HEALTHCARE, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of this 19th day of July, 1996, between
Enterprising HealthCare, Inc. (the "Company"), an Arizona corporation and
wholly-owned subsidiary of Transition Systems, Inc. ("TSI"), TSI and Anthony R.
Fonze (the "Executive").
R E C I T A L S:
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WHEREAS, the Company recognizes that the future growth, profitability
and success of the Company's business will be substantially and materially
enhanced by the employment of the Executive by the Company;
WHEREAS, the Company desires to employ the Executive and the Executive
has indicated his willingness to provide his services, on the terms and
conditions set forth herein;
NOW, THEREFORE, on the basis of the foregoing premises and in
consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
SECTION 1. EMPLOYMENT. The Company hereby agrees to employ the
Executive and the Executive hereby accepts employment with the Company, on the
terms and subject to the conditions hereinafter set forth. Subject to the terms
and conditions contained herein, the Executive shall serve as President of the
Company and, in such capacity, shall report directly to the President of TSI.
The Executive shall have such duties as are typically performed by a President,
together with such additional duties, commensurate with the Executive's skills
and expertise and his position as President, as may be assigned to the Executive
from time to time by the President of TSI or by the Board of Directors of the
Company (the "Board of Directors"). In addition, TSI shall appoint the Executive
a Vice President of TSI. The principal location of the Executive's employment
shall be at the Company's office located in Tucson, Arizona, although the
Executive understands and agrees that he may be reasonably required to travel
from time to time for business reasons.
SECTION 2. TERM. Subject to the provisions and conditions of this
Agreement (including Section 6), the Executive's employment hereunder shall
commence on the date hereof and shall continue during the period ending on the
first anniversary of the date hereof and shall be automatically extended for
successive one-year periods thereafter unless either the Executive or the
Company shall have given the other notice of termination at least ninety days in
advance of the applicable
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anniversary hereof. Such period, as extended in accordance with the terms of
this Section 2, shall be referred to herein as the "Employment Term".
SECTION 3. COMPENSATION.
(a) SALARY. As compensation for the performance of the Executive's
services hereunder, the Company shall pay to the Executive a salary (the
"Salary") of $130,000 per annum with increases, if any, as may be approved in
writing by the Board of Directors. The Salary shall be payable in accordance
with the payroll practices of the Company as the same shall exist from time to
time. In no event shall the Salary be decreased during the Employment Term.
(b) BENEFITS. During the Employment Term, in addition to the Salary,
the Executive shall be entitled to participate in health, insurance, pension,
and other benefits provided to executives of TSI on terms no less favorable than
those available to such executives generally. The Executive shall also be
entitled to the same number of vacation days, holidays, sick days and other
benefits as are generally allowed to executives of TSI in accordance with TSI's
policy in effect from time to time generally. The Executive will be given the
benefit of his period of employment by EHI prior to the date of this Agreement
for purposes of determining benefits hereunder.
(c) BONUS PLAN. The Executive shall be eligible to receive an annual
cash bonus ("Bonus") of up to $130,000 if certain performance goals to be
determined by the Board of Directors are met.
(d) STOCK OPTIONS. On the date of this Agreement, the Executive will be
granted a non-qualified stock option for 105,000 shares of TSI's Common Stock at
an exercise price equal to the fair market value of such stock on the date of
grant, which option shall provide that one-sixth of the shares will vest on each
of the six-month and twelve-month anniversaries of the date of this Agreement
and one-third of the shares will vest on each of the twenty-four-month and
forty-second-month anniversaries of the date of this Agreement. Upon the
Executive's written request to TSI made within the thirty consecutive days
following the date of this Agreement, TSI will replace this option with another
non-qualified option identical to the original except for the date of grant and
the exercise price, which price shall instead be the fair market value of TSI's
Common Stock on the business day succeeding the date on which such written
request from the Executive is received by TSI.
SECTION 4. EXCLUSIVITY. During the Employment Term, the Executive shall
devote his full time to the business of the Company, shall faithfully serve the
Company, shall in all
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respects conform to and comply with the lawful and reasonable directions and
instructions given to him by the Chief Executive Officer in accordance with the
terms of this Agreement, and shall use his best efforts to promote and serve the
interests of the Company, except that the Executive may engage in any activities
that, either singly or in the aggregate, do not interfere in any material
respect with the services to be provided by the Executive hereunder, including
without limitation (i) the activities of professional trade organizations
related to the business of the Company and (ii) subject to Section 7(a) hereof,
engage in personal investing activities.
SECTION 5. REIMBURSEMENT FOR EXPENSES. The Executive is authorized to
incur reasonable expenses in the discharge of the services to be performed
hereunder, including expenses for travel, entertainment, lodging and similar
items in accordance with the Company's expense reimbursement policy, as the same
may be modified by the Board of Directors from time to time. The Company shall
reimburse the Executive for all such proper expenses upon presentation by the
Executive of itemized accounts of such expenditures in accordance with the
financial policy of the Company, as in effect from time to time.
SECTION 6. TERMINATION AND DEFAULT.
(a) DEATH. This Agreement shall automatically terminate upon the death
of the Executive and upon such event, the Executive's estate shall be entitled
to receive the amounts specified in Section 6(f) below.
(b) DISABILITY. If the Executive is unable to perform the duties
required of him under this Agreement because of illness, incapacity, or physical
or mental disability, this Agreement shall remain in full force and effect and
the Company shall pay all compensation and benefits required to be paid to the
Executive hereunder, unless the Executive is unable to perform the duties
required of him under this Agreement for an aggregate of 120 days (whether or
not consecutive) during any 12-month period during the term of this Agreement,
in which event this Agreement (other than Sections 6(f), 7, 8 and 11 hereof),
including, but not limited to, the Company's obligations to pay any Salary or to
provide any privileges under this Agreement, shall terminate.
(c) JUST CAUSE. The Company may terminate this Agreement (other than
Section 6(f) hereof) at any time effective (x) in the case of termination under
this Section 6(c) for Just Cause, upon delivery of a written notice to the
Executive and (y) in the case of termination for other than Just Cause, upon 30
days' written notice to the Executive. If the Executive's employment is
terminated pursuant to this Section 6(c), the Executive shall be entitled to
receive the amounts specified in
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Section 6(f) below. In the event of termination pursuant to this Section 6(c)
for Just Cause, the Company shall deliver to the Executive written notice
pursuant to a vote of the Board of Directors setting forth the basis for such
termination, which notice shall specifically set forth the nature of the Just
Cause which is the reason for such termination. For purposes of this Agreement,
"Just Cause" shall mean: (i) fraud, embezzlement or other deliberate dishonesty
of the Executive with respect to the Company or any subsidiary or affiliate
thereof; (ii) conviction of the Executive for commission of a felony; or (iii)
gross and willful failure of the Executive to perform his duties hereunder,
which failure continues for more than thirty (30) days following receipt by the
Executive of written notice given pursuant to a vote of the Board of Directors,
such vote to set forth in reasonable detail the nature of such failure.
(d) GOOD REASON. The Executive may terminate this Agreement (other than
Sections 6(f), 7, 8 and 11) for "Good Reason" if he resigns from his employment
hereunder following a material default by the Company in the performance of its
obligations hereunder and such default shall not have been corrected by the
Company within thirty (30) days of receipt by the Company of written notice from
the Executive of the occurrence of such default, which notice shall specifically
set forth the nature of such default. If the Executive terminates his employment
hereunder for Good Reason pursuant to this Section 6(d), the Executive shall be
entitled to receive the amounts specified in Section 6(f). The date of
termination of the Executive's employment under this Section 6(d) shall be the
effective date of any resignation specified in writing by the Executive, which
shall not be less than thirty (30) days after receipt by the Company of written
notice of such resignation, provided that such resignation shall not be
effective and the default shall be deemed to have been cured if such default is
corrected by the Company during such 30-day period.
(e) RESIGNATION. The Executive shall have the right immediately to
terminate this Agreement (other than Sections 6(f), 7, 8 and 11) by giving
notice of the Executive's resignation other than for Good Reason. Upon receipt
of such notice, this Agreement, (other than Sections 6(f), 7, 8 and 11), shall
terminate immediately.
(f) PAYMENTS. In the event that the Executive's employment hereunder
terminates for any reason, the Company shall pay to the Executive all amounts
accrued but unpaid hereunder through the date of termination in respect of
Salary, benefits provided pursuant to Section 3(b) hereof or unreimbursed
expenses. In the event the Executive's employment hereunder is terminated by the
Company without Just Cause or by the Executive with Good Reason, in addition to
the amounts specified in the foregoing sentence, (i) the Executive shall
continue to receive
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the Salary (less any applicable withholding or similar taxes) at the rate in
effect hereunder on the date of such termination periodically, in accordance
with the Company's prevailing payroll practices, for a period of one year
following the date of such termination (the "Severance Term") and (ii) the
Executive shall continue to receive any health or insurance benefits provided to
him as of the date of such termination in accordance with Section 3(c) hereof
during the Severance Term. In the event the Executive accepts other employment
or engages in his own business prior to the last date of the Severance Term, the
Executive shall forthwith notify the Company and the Company shall be entitled
to set off from amounts due the Executive under this Section 6(f) the amounts
paid to the Executive in respect of such other employment or business activity.
Amounts owed by the Company in respect of the Salary or reimbursement for
expenses under the provisions of Section 5 hereof shall, except as otherwise set
forth in this Section 6(f), be paid promptly upon any termination. Upon any
termination of this Agreement, all of the rights, privileges and duties of the
Executive hereunder shall cease, except for his rights under this Section 6(f)
and his obligations under Sections 7, 8 and 11 hereunder.
SECTION 7. SECRECY AND NON-COMPETITION.
(a) NO COMPETING EMPLOYMENT. The Executive acknowledges that the
agreements and covenants contained in this Section 7 are essential to protect
the value of the Company's business and assets and by his current employment
with the Company and its subsidiaries, the Executive has obtained and will
obtain such knowledge, contacts, know-how, training and experience and there is
a substantial probability that such knowledge, know-how, contacts, training and
experience could be used to the substantial advantage of a competitor of the
Company and to the Company's substantial detriment. Therefore, the Executive
agrees that for the period commencing on the date of this Agreement and ending
on the second anniversary of the termination of the Executive's employment
hereunder (such period is hereinafter referred to as the "Restricted Period"),
the Executive shall not participate or engage, directly or indirectly, for
himself or on behalf of or in conjunction with any person, partnership,
corporation or other entity (a "Person"), whether as an employee, agent,
officer, director, shareholder, partner, joint venturer, investor or otherwise,
in any business activity that involves or is related to healthcare decision
support systems or the development, production, marketing or selling of
products, processes, techniques or technology that are identical to,
substantially similar to or competitive with the products developed, produced,
marketed or sold by the Company or TSI during the Restricted Period; PROVIDED,
HOWEVER, that nothing herein shall be construed as preventing the Executive from
making passive investments in a Person engaging in any such activity if the
securities of such
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Person are publicly traded and such investment constitutes less than five
percent (5%) of the outstanding shares of capital stock or comparable equity
interests of such Person.
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive, except in
connection with his employment hereunder, shall not disclose to any person or
entity or use, either during the Employment Term or at any time thereafter, any
information not in the public domain or generally known in the industry, in any
form, acquired by the Executive while employed by the Company or, if acquired
following the Employment Term, such information that, to the Executive's
knowledge, has been acquired, directly or indirectly, from any person or entity
owing a duty of confidentiality to the Company or any of its subsidiaries or
affiliates, relating to the Company, its subsidiaries or affiliates, including
but not limited to information regarding customers, vendors, suppliers, trade
secrets, training programs, manuals or materials, technical information,
contracts, systems, procedures, mailing lists, know-how, trade names,
improvements, price lists, financial or other data (including the revenues,
costs or profits associated with any of the Company's products or services),
business plans, code books, invoices and other financial statements, computer
programs, software systems, databases, discs and printouts, plans (business,
technical or otherwise), customer and industry lists, correspondence, internal
reports, personnel files, sales and advertising material, telephone numbers,
names, addresses or any other compilation of information, written or unwritten,
that is or was used in the business of the Company or any subsidiaries or
affiliates thereof (collectively, "Confidential Information"); PROVIDED,
HOWEVER, that the limitations set forth above shall not apply to any
Confidential Information that (A) is then generally known to the public; (B)
became or becomes generally known to the public through no fault of the
Executive; or (C) is disclosed in accordance with an order of a court of
competent jurisdiction or applicable law. The Executive agrees and acknowledges
that all of such Confidential Information, in any form, and copies and extracts
thereof, are and shall remain the sole and exclusive property of the Company,
and upon termination of his employment with the Company, the Executive shall
return to the Company the originals and all copies of any such Confidential
Information provided to or acquired by the Executive in connection with the
performance of his duties for the Company, and shall return to the Company all
files, correspondence and/or other communications received, maintained and/or
originated by the Executive during the course of his employment; PROVIDED,
HOWEVER, that the Executive's counsel shall be entitled to retain a copy of all
such Confidential Information solely for purposes of defending against any
claims of a breach by the Executive of this Section 7(b), so long as such
counsel agrees to keep such Confidential Information confidential for all other
purposes.
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(c) NO INTERFERENCE. During the Restricted Period, the Executive shall
not, whether for his own account or for the account of any other Person (other
than the Company), directly or indirectly solicit, endeavor to entice away from
the Company, its affiliates or subsidiaries, or otherwise directly or indirectly
interfere with the relationship of the Company, its affiliates or subsidiaries
with any person who, to the knowledge of the Executive, is employed by or
otherwise engaged to perform services for the Company, its affiliates or
subsidiaries or who is, or was within the then most recent twelve-month period,
a customer or client, of the Company, its predecessors or any of its
subsidiaries or affiliates, PROVIDED, HOWEVER, that this restriction shall be
construed to prevent the Executive from soliciting customers or clients only
with respect to any business in which the Executive is not permitted to
participate pursuant to Section 7(a) hereof. The placement of any general
classified or "help wanted" advertisements and/or general solicitations to the
public at large shall not constitute a violation of this Section 7(c) unless the
Executive's name is contained in such advertisements or solicitations.
(d) INVENTIONS, ETC. The Executive hereby sells, transfers and assigns
to the Company or to any person or entity designated by the Company all of the
entire right, title and interest of the Executive in and to all inventions,
ideas, disclosures and improvements, whether patented or unpatented, and
copyrightable material, made or conceived by the Executive, solely or jointly,
during his or her employment by the Company which relate to methods, apparatus,
designs, products, processes or devices, sold, leased, used or under development
by the Company, or which otherwise relate to or pertain to the business,
functions or operations of the Company or which arise from the efforts of the
Executive during the course of his employment for the Company. The Executive
shall communicate promptly and disclose to the Company, in such form as the
Company requests, all information, details and data pertaining to the
aforementioned inventions, ideas, disclosures and improvements; and the
Executive shall execute and deliver to the Company such formal transfers and
assignments and such other papers and documents as may be necessary or required
of the Executive to permit the Company or any person or entity designated by the
Company to file and prosecute the patent applications and, as to copyrightable
material, to obtain copyright thereof. Any invention relating to the business of
the Company and disclosed by the Executive within one year following the
termination of his employment with the Company shall be deemed to fall within
the provisions of this paragraph unless proved to have been first conceived and
made following such termination.
SECTION 8. INJUNCTIVE RELIEF. Without intending to limit the remedies
available to the Company, the Executive acknowledges that a breach of any of the
covenants contained in
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Section 7 hereof may result in material irreparable injury to the Company or its
subsidiaries or affiliates for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of such a breach or threat thereof, the Company shall be entitled to
obtain a temporary restraining order and/or a preliminary or permanent
injunction, without the necessity of proving irreparable harm or injury as a
result of such breach or threatened breach of Section 7 hereof, restraining the
Executive from engaging in activities prohibited by Section 7 hereof or such
other relief as may be required specifically to enforce any of the covenants in
Section 7 hereof.
SECTION 9. SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of, and be binding upon, the successors and
assigns of each of the parties, including, but not limited to, the Executive's
heirs and the personal representatives of the Executive's estate; PROVIDED,
HOWEVER, that neither party shall assign or delegate any of the obligations
created under this Agreement without the prior written consent of the other
party. Notwithstanding the foregoing, the Company shall have the unrestricted
right to assign this Agreement and to delegate all or any part of its
obligations hereunder to any of its subsidiaries or affiliates, but in such
event such assignee shall expressly assume all obligations of the Company
hereunder and the Company shall remain fully liable for the performance of all
of such obligations in the manner prescribed in this Agreement. Nothing in this
Agreement shall confer upon any person or entity not a party to this Agreement,
or the legal representatives of such person or entity, any rights or remedies of
any nature or kind whatsoever under or by reason of this Agreement.
SECTION 10. WAIVER AND AMENDMENTS. Any waiver, alteration, amendment or
modification of any of the terms of this Agreement shall be valid only if made
in writing and signed by the parties hereto; PROVIDED, HOWEVER, that any such
waiver, alteration, amendment or modification is consented to on the Company's
behalf by the Board of Directors. No waiver by either of the parties hereto of
their rights hereunder shall be deemed to constitute a waiver with respect to
any subsequent occurrences or transactions hereunder unless such waiver
specifically states that it is to be construed as a continuing waiver.
SECTION 11. SEVERABILITY AND GOVERNING LAW. The Executive acknowledges
and agrees that the covenants set forth in Section 7 hereof are reasonable and
valid in geographical and temporal scope and in all other respects. If any of
such covenants or such other provisions of this Agreement are found to be
invalid or unenforceable by a final determination of a court of competent
jurisdiction (a) the remaining terms and provisions hereof shall be unimpaired
and (b) the invalid or unenforceable
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term or provision shall be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 12. NOTICES.
(i) All communications under this Agreement shall be in writing
and shall be delivered by hand or mailed by overnight courier or by registered
or certified mail, postage prepaid:
(1) if to the Executive, at 3160 N. San Remo, Tucson, Arizona
85715, or at such other address as the Executive may have furnished the
Company in writing, or
(2) if to the Company, at 3160 N. San Remo, Tucson, Arizona
85715, or at such other address as it may have furnished in writing to
the Executive.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
SECTION 13. SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof, affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
SECTION 14. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties hereto regarding the employment of
the Executive. This Agreement supersedes all prior negotiations, discussions,
correspondence, communications, understandings and agreements between the
parties relating to the subject matter of this Agreement.
SECTION 15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ENTERPRISING HEALTHCARE, INC.
By: /s/ Donald Cook
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Donald Cook, Vice President
/s/ Anthony Fonze
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ANTHONY FONZE
TRANSITION SYSTEMS, INC.
By: /s/ Robert Raco
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Robert Raco, President
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