EMPLOYMENT AGREEMENT (this “Agreement”) dated as of [__] (the “Effective Date”), by and between HITECH COMPANY, Inc., a Delaware corporation (“HITECH”), and [__] (the “Employee”).
1. Employment. HITECH hereby employs the Employee to serve as President and Chief Executive Officer of HITECH in accordance with the terms and provisions of this Agreement, and the Employee hereby accepts such employment with HITECH. Employee also shall serve as a member of the Board of Directors of HITECH.
2. Term. The term of this Agreement shall commence on the Effective Date and shall continue until this Agreement is terminated as hereinafter provided.
3. Compensation. As compensation for all services rendered by the Employee to HITECH pursuant to this Agreement, HITECH shall pay to the Employee the following amounts during the term of this Agreement:
(a) Base Compensation. HITECH shall pay to the Employee base compensation at no less than the rate set forth on Schedule A attached hereto and herein incorporated by reference (the “Base Compensation”). The Base Compensation shall be payable pursuant to HITECH’s standard payroll practices, except as otherwise noted on Schedule A.
(b) Incentive Bonus. In addition to the Base Compensation, the Employee shall be eligible to receive incentive bonuses from time to time at the discretion of the Board of Directors of HITECH.
4. Vacation and Employee Benefits.
(a) Vacation. The Employee shall be entitled to an annual paid vacation equal to four (4) weeks annually. Vacation shall be taken at such times so as not to interfere with the proper operation of HITECH’s business.
(b) Benefits Generally. The Employee shall be entitled to receive and participate in such employee benefits as HITECH shall from time to time determine to provide to its executives generally. At a minimum, the Employee shall receive medical and dental insurance at HITECH’s expense.
(c) Indemnification Rights. The Employee shall be entitled to indemnification, including advance reimbursement of expenses, to the fullest extent permitted by applicable law, and shall be entitled to receive an indemnification agreement with terms equivalent to any indemnification agreement that HITECH executes with any of its officers or directors.
5. Description of Duties. During the term of this Agreement, the Employee shall be the President and Chief Executive Officer of HITECH and shall:
(a) Devote on a full-time basis all necessary time, best efforts, professional skills, attention and energies to the fulfillment of the duties customarily associated with such position and the accomplishment of the goals provided by the Board of Directors of HITECH to the Employee from time to time; and
(b) Act in accordance herewith, and in all accounts be responsible and responsive to, the Board of Directors of HITECH.
6. General Services. During the term of this Agreement, the Employee shall:
(a) Observe HITECH’s policies and standards of conduct, as well as customary standards of business conduct, including any standards prescribed by law or regulation;
(b) Perform his duties hereunder in a manner that preserves and protects HITECH’s business reputation; and
(c) Do all things and render such services as may be necessary or beneficial in carrying out any of the foregoing.
7. Nondisclosure of Proprietary or Confidential Information and Confidential Communications. The Employee recognizes and acknowledges that the marketing plans and business strategy, the names and addresses of HITECH’s customers, the names and addresses of HITECH’s suppliers, trade secrets and any other confidential and proprietary information concerning the business or affairs of HITECH (including but not limited to marketing and business plans and strategies) (hereinafter collectively referred to as the “Confidential Information”) constitute a valuable, proprietary, special and unique asset of HITECH’s business. The Employee further recognizes and acknowledges that any communications, whether written, oral or otherwise, that HITECH or any of HITECH’s employees has with HITECH’s existing or prospective customers and clients are extremely confidential (hereinafter the “Confidential Communications”). The term Confidential Information shall exclude any information that has been made public through no fault of the Employee.
The Employee shall not, for any reason whatsoever, during or after the termination of his employment with HITECH, use, disclose or allow access to, for his own benefit or for that of another, the Confidential Information or the Confidential Communications (or any part thereof) to any person, firm, corporation, association or other entity for any reason or for any purpose whatsoever.
In the event of a breach or threatened breach by the Employee of the provisions of this Section, HITECH shall be entitled to an injunction restraining the Employee from so using, disclosing or allowing access to, in whole or in part, the Confidential Information and the Confidential Communications or from rendering any services to any person, firm, corporation, association or other entity to whom the Confidential Information or the Confidential Communications, in whole or in part, have been disclosed or are threatened to be disclosed. Nothing herein shall be construed as prohibiting HITECH from pursuing any other remedies available to HITECH for such breach or threatened breach, including, but not limited to, the recovery of damages and reasonable attorneys’ fees from the Employee.
Upon termination of this Agreement by either party for any reason, the Employee shall return to HITECH any of the Confidential Information, Confidential Communications, charts, company literature, reports, employer credit cards or other proprietary materials of HITECH then in the Employee’s possession and all other materials of HITECH which the Board of Directors of HITECH requests the Employee to so return.
This Section shall in all respects survive any termination of this Agreement and shall remain in full force and effect thereafter.
8. Covenant Not to Compete; Nonsolicitation of Employees and Customers. The Employee agrees that during the Restricted Period (as defined below), he shall not (without the express prior written consent of the Board of Directors of HITECH) directly or indirectly compete with HITECH. In construing the foregoing prohibition, the Employee shall be deemed to be competing with HITECH if he shall become self-employed in, or accept employment with, consult with, render services to or become associated with, own, manage, operate, join, control, or participate in the ownership, management, operation, or control of, or be connected in any material manner with, or directly or indirectly enter into the employment of, or make a substantial investment in, any corporation, partnership, proprietorship or other type of business organization or entity which engages in, any business (a “Competing Business”) involving any lines of business which directly and materially compete with the lines of business in or with which HITECH is then currently involved. The “Restricted Period” shall mean the period of the Employee’s employment with HITECH pursuant to this Agreement plus a period of one continuous year thereafter; provided, however, that if the Employee is terminated by HITECH without cause or voluntarily terminates his own employment for Good Reason (as those terms are defined below), the Restricted Period shall be coincident with the Post-Termination Period, as defined in Section 13A.
The Employee further agrees that during his employment with HITECH and for a period of one continuous year thereafter he shall not solicit any of HITECH’s employees, existing customers or prospective customers (of which the Employee is then currently aware), affiliated research institutions or scientists, on behalf of himself or any Competing Business.
This Section 8 shall in all respects survive any termination of this Agreement and shall remain in full force and effect during the period specified in this Section 8.
9. Assignment of Rights. Any and all information, data, inventions, discoveries, materials, notebooks and other work product which the Employee conceives, develops or acquires during his employment with HITECH, which directly or indirectly relates to work performed for HITECH, shall be the sole and exclusive property of HITECH. The Employee shall promptly execute any and all documents necessary and take such further actions as HITECH may deem necessary to assign any and all of the Employee’s right, title and interest in such property to HITECH.
10. Intellectual Property. During the Employee’s employment at HITECH, the Employee shall promptly assist with and execute any and all applications, assignments or other documents which an officer or director of HITECH shall deem necessary or useful in order to obtain and maintain patent, trademark or other intellectual property protection for HITECH’s products or services. After the termination date of his employment with HITECH, the Employee shall use reasonable efforts to assist HITECH on intellectual property matters as they relate to his employment, and HITECH shall reasonably compensate the Employee for his time and expense.
11. Documents, Records, etc. All documents, records, data, apparatus, equipment and other physical property, whether or not pertaining to Confidential Information, which are furnished to the Employee by HITECH or are produced by the Employee in connection with the Employee’s employment will be and remain the sole property of HITECH. The Employee will return to HITECH all such materials and property as and when requested by HITECH. In any event, and whether or not HITECH so specifically requests, the Employee will return all such materials and property immediately upon termination of the Employee’s employment for any reason. The Employee will not retain any such material or property or any copies thereof after such termination.
12. Restricted Activities. During the term of this Agreement, the Employee shall not engage in any business activities or ventures outside of the business activities of HITECH without the express prior written consent of HITECH’s Board; provided, however, that nothing in this Agreement shall be construed as preventing the Employee from engaging in passive investment activities or customary charitable activities.
A. Termination Without Cause.
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated by either HITECH (by act of its Board) or the Employee, at any time, without cause; provided, however, that the party desirous of terminating this Agreement shall give the other party prior written notice of such termination. In either event, HITECH may determine the Employee’s final day of employment hereunder. The date specified in any notice of termination as the Employee’s final day of employment shall be referred to herein as the “Termination Date.”
(b) In the event that HITECH (by act of its Board) terminates this Agreement without cause pursuant to this subsection (A) of Section 13, or the Employee voluntarily resigns for Good Reason (defined below), then the Employee shall be entitled to receive monthly severance pay equal to one-twelfth of the sum of: (i) the Base Compensation annual rate as of the Termination Date and (ii) amount of any incentive bonus most recently determined within the previous two years, for a period ending on the later of the six-month anniversary of the Termination Date or the first year anniversary of the Effective Date (the “Post-Termination Period”) (the “Severance Package”). HITECH also agrees to make available to the Employee, as part of the Severance Package, for the duration of the Post-Termination Period, continuation of group health plan benefits to the extent authorized by and consistent with 29 U.S.C. § 1161 et seq. (commonly known as “COBRA”), and any other benefits the Employee is receiving as of the Termination Date with the cost of the regular premium for such benefits shared in the same relative proportion by HITECH and the Employee as in effect on the Termination Date.
(c) For purposes of this Agreement, “Good Reason” shall mean:
(i) a reduction of the Employee’s salary or insurance benefits other than a reduction approved by the Employee in writing; or
(ii) a significant change in the Employee’s title, responsibilities and/or duties which constitutes, when compared to the Employee’s title, responsibilities and/or duties as of the Effective Date, a demotion; or
(iii) the relocation of the offices at which the Employee is principally employed as of the Effective Date to a location more than fifty (50) miles from such office, which relocation is not approved by the Employee.
(d) In the event of the Employee’s voluntary termination, then the Employee shall, at the request of the Board of HITECH, continue as an employee of HITECH for an additional thirty (30) day period after the Termination Date for the purpose of assisting HITECH in locating and training a suitable replacement for the Employee. During such additional period, the Employee shall be entitled to full compensation and benefits and the Employee shall continue to be bound by all of the terms contained herein. Any such extended term shall extend the Post-Termination Period by an equal number of days.
B. Termination With Cause.
(a) HITECH (by act of its Board) may terminate this Agreement immediately for “cause” by giving written notice to the Employee. As used herein, the term “cause” shall mean:
(i) willful failure to perform the Employee’s employment duties, or willful failure to follow instructions of the Board of Directors, if such failure is in any way significant, but only if such failure does not result from an ambiguity in such duties or instructions; provided, however, that such duties or instructions are specific in nature and not in the nature of performance goals or objectives;
(ii) gross negligence in the performance of the Employee’s duties, willful misfeasance in connection with the Employee’s work or a breach of fiduciary duty by the Employee;
(iii) the commission by the Employee of an act of fraud, embezzlement or any other illegal conduct in connection with the Employee’s performance of his duties;
(iv) the Employee’s conviction of a felony; or
(v) disregard of the material rules or material policies of HITECH which has not been cured within 15 days after notice thereof from HITECH.
In the event that this Agreement is terminated pursuant to this subsection (B), the Employee forfeits and shall not be entitled to the Severance Package, or other benefits or bonus of any kind whatsoever for any period after the Termination Date set forth in the notice given by HITECH to the Employee.
(a) If the Employee shall be disabled so as to be unable to perform the essential functions of the Employee’s then existing position or positions under this Agreement, HITECH may remove the Employee from any responsibilities and/or reassign the Employee to another position with HITECH during the period of such disability. If the period of disability extends for more than six (6) months, HITECH may terminate the Employee’s employment without further liability on the part of HITECH, except that the Employee shall be entitled to the Severance Package. HITECH may elect, at its sole discretion, to purchase a disability insurance package for the Employee. In the event that HITECH so elects to purchase a disability insurance package and the Employee subsequently becomes entitled to payments of the disability insurance benefit, any payments pursuant to the Severance Package, as defined in this Section 13, or payments of salary by HITECH will be reduced by the amount of the disability insurance benefit payments received by the Employee.
(b) If any question shall arise as to whether during any period the Employee is disabled so as to be unable to perform the essential functions of the Employee’s then existing position or positions, the Employee may, and at the request of HITECH shall, submit to HITECH a certification in reasonable detail by a physician selected by HITECH, to whom the Employee or the Employee’s guardian has no reasonable objection, as to whether the Employee is so disabled or how long such disability is expected to continue, and such certification shall, for the purposes of this Agreement, be conclusive of the issue. The Employee shall cooperate with any reasonable request of the physician in connection with such certification. If such question shall arise and the Employee shall fail to submit such certification, HITECH’s determination of such issue shall be binding on the Employee. Nothing in this Section 13(C)(b) shall be construed to waive the Employee’s rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
D. Death or Retirement. The Employee’s employment under this Agreement will be deemed to have terminated without further liability on the part of HITECH if the Employee dies or retires.
E. Certain Termination Benefits. Unless otherwise specifically provided in this Agreement or otherwise required by law, all compensation and benefits payable to the Employee under this Agreement shall terminate on the date of termination of the Employee’s employment under this Agreement.
F. No Right to Continuing Employment. The Employee agrees that nothing contained in this Agreement shall be construed to give the Employee a right to continuing employment beyond the Termination Date.
14. Litigation and Regulatory Cooperation. During and after the Employee’s employment, the Employee shall cooperate fully with HITECH in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of HITECH which relate to events or occurrences that transpired while the Employee was employed by HITECH. The Employee’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of HITECH at mutually convenient times. During and after the Employee’s employment, the Employee also shall cooperate fully with HITECH in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Employee was employed by HITECH. HITECH shall reimburse the Employee for any reasonable out-of-pocket expenses incurred in connection with the Employee’s performance of obligations pursuant to this Section 14.
15. No Assignment. The Employee acknowledges that the services to be rendered by him pursuant to this Agreement are unique. Accordingly, the Employee shall not assign any of his rights or delegate any of his duties or obligations under this Agreement.
16. Severability. Subject only to the reformation of time, geographical, and occupational limitations as set forth in the next section, all of the terms and provisions contained in this Agreement are severable and, in the event that any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be deemed unenforceable or invalid by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared unenforceable or invalid, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
17. Reformation of Time, Geographical, and Occupational Limitations. In the event that any provision in this Agreement is held to be unenforceable by a court of competent jurisdiction because it exceeds the maximum time, geographical, or occupational limitations permitted by applicable law, then such provision(s) shall be and hereby are reformed to the maximum time, geographical, and occupational limitations as may be permitted by applicable law.
18. Specific Performance. Both parties recognize that the services to be rendered under this Agreement by the Employee are special, unique and of an extraordinary character, and that in the event of breach by the Employee of the terms or conditions of this Agreement to be performed by him, HITECH shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, to obtain damages for any breach of this Agreement to enforce the specific performance thereof by the Employee, or to enjoin the Employee from engaging in such activity, but nothing contained herein shall be construed to prevent such other remedy in the courts, in case of any breach of this Agreement by the Employee, as HITECH may elect to invoke.
19. [____] Law; Choice of Forum. This Agreement shall be governed, construed and interpreted by and in accordance with the laws of [____], without reference to its principles of conflicts of laws. Any actions concerning enforcement of this Agreement or in any way relating to the subject matter of this Agreement shall be litigated only in [Maryland] state or federal courts of proper jurisdiction and venue. Each party hereto expressly agrees to submit to such jurisdiction and venue for the purposes of this Agreement.
20. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto, and replaces all prior agreements, promises, representations and understandings between HITECH and the Employee whatsoever concerning the limited subject matter hereof (other than stock purchase or other equity arrangements). There are no other agreements, conditions or representations, oral or written, express or implied, which form the basis for this Agreement.
21. Assignment; Successors and Assigns, etc. Neither HITECH nor the Employee may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that HITECH may assign its rights under this Agreement without the consent of the Employee in the event that HITECH shall effect a reorganization, consolidate with or merge into any other corporation, partnership, organization or other entity, or transfer all or substantially all of its properties or assets to any other corporation, partnership, organization or other entity. This Agreement shall inure to the benefit of and be binding upon HITECH and the Employee, their respective successors, executors, administrators, heirs and permitted assigns.
22. Modification. No waiver or modification of this Agreement or of any covenant, condition, or limitation contained herein shall be valid unless in a writing of subsequent date hereto and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the parties hereto arising out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid. The parties further agree that the provisions of this Section may not be waived except as herein set forth.
23. Section Headings. The section headings contained in this Agreement are for convenience only, and shall in no manner be construed as part of this Agreement.
24. Waiver of Breach. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach thereof.
25. Notices. Any and all notices required or permitted to be given under this Agreement shall be sufficient if furnished in writing, sent by certified or registered mail, return receipt requested, in the case of notice to HITECH, to HITECH principal executive offices, attention: Board of Directors, or in the case of notice to the Employee, to the most recent residence address of the Employee appearing in HITECH’s records, or to such other address as such party may specify in writing.
26. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year here above first written.
|HITECH COMPANY, INC.