Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the
“Agreement” ) is entered into on
December 17, 2007 (the “Effective
Date” ), by I-TRAX, INC., a Delaware
corporation with its principal business offices located at 4
Hillman Drive, Suite 130, Chadds Ford, Pennsylvania 19317
(the “Company” ), and FRANK A.
MARTIN, an individual residing at 489 East London Grove Road,
West Gove, Pennsylvania 19390 (
“Executive” ).
I-trax Health Management
Solutions, Inc. (f/k/a I-trax.com, Inc.) is a subsidiary of
the Company and a party to an Employment Agreement with the
Executive effective as of December 29, 2000 (the
“Original Agreement”
). The Company had executed a Joinder to the
Original Agreement to guaranty and to act as a surety for the
performance by I-trax Health Management Solutions, Inc.
(f/k/a I-trax.com, Inc.) under the Original
Agreement. The initial term of the Original
Agreement began on December 29, 2000 and ended on December
29, 2003 (the “Original Term”
). Since December 29, 2003, the Original Agreement
has been renewing automatically for successive additional
terms of one year each (each, an “Additional
Term” ). The parties now wish to
amend and restate the Original Agreement in the form of this
Agreement.
In consideration of the
mutual covenants and premises contained herein, and other
good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the
parties agree as follows:
1.
Term of Employment . As of the Effective
Date and upon the terms set forth in this Agreement, the term
of Executive’s employment will extend until terminated
in accordance with the provisions of Section 4 below (the
“Extended Term,” and together
with the Original Term and each Additional Term, the
“Term” ).
2.
Title and Capacity . Executive will shall
serve as the Chairman of the Board of Directors of the
Company and shall perform the duties commensurate with this
position and such other duties as the Company’s Board
of Directors (the “Board” ) may
determine. Executive shall devote as much time as
necessary to performing the above duties.
3.
Salary; Benefits .
3.1
Salary . On the Effective Date, the Company
is paying Executive an annual base salary of $286,057.00
(such salary, as adjusted from time to time, the
“Base Salary” ). The
Compensation Committee of the Board (the
“Compensation Committee” ) will
complete an annual review of Executive’s performance
and will, based upon the results of such review, increase the
Base Salary for any subsequent year of the
Term. In addition, the Company will pay Executive
a bonus for each complete or partial fiscal year during the
Term (the “Bonus”
). The Bonus will be determined by the
Compensation Committee upon consultation with
Executive.
3.2
Payment in Installments . The Company will
pay Executive the Base Salary in periodic installments in
accordance with the Company’s general payroll
practices, after withholding for all Federal, state and local
taxes and other required deductions. The Company
will pay the Bonus within 90 days of the end of the end of
each calendar year.
3.3 [INTENTIONALLY
OMITTED]
3.4
Benefits . Provided Executive meets and
continues to meet the full-time and any and all other
eligibility requirements set forth in the Company’s
Employee Manual and in the applicable benefits plans
sponsored by the Company, the Company will make available to
Executive fringe benefits, retirement, health and welfare
benefits plans, policies and arrangement as are in effect
from time to time and made available to senior executives
officers of the Company, subject to employee cost sharing
provisions and other provisions of such benefits and benefit
plans (collectively, the
“Benefits”
). Notwithstanding the preceding, the Company may
change, modify, amend, eliminate, or terminate the Benefits
or change the employee cost sharing provisions applicable to
the Benefits, and if the Company does so, thereafter
Executive will be entitled only to then available standard
full-time employee Benefits made available to other senior
executive officers of the Company.
3.5
Paid Time Off . Executive is entitled to 25
paid time off days per year in accordance with the
Company’s Executive PTO policy, as amended from time to
time.
3.6
Reimbursement of Expenses .
(a) The
Company will reimburse Executive for all reasonable travel,
entertainment and other expenses incurred or paid by
Executive in connection with, or related to, the performance
of his duties under this Agreement in accordance with the
Travel and Expense Policy published by the Company’s
Finance Department, as amended from time to
time.
(b) The
benefits and reimbursements made pursuant to Section 3.6(a)
are subject to the following restrictions: (1) the amount of
benefits provided or expenses eligible for reimbursement
during any calendar year will not affect the benefits provided
or expenses eligible for reimbursement during any other
calendar year; and (2) the Company will reimburse an eligible
expense as soon as practicable after Executive requests such
reimbursement, but not later than the December 31 following
the calendar year in which the expense was
incurred.
4.
Employment Termination . The employment of
Executive by the Company pursuant to this Agreement shall
terminate upon the occurrence of any of the
following:
4.1
Cause . At the election of the Company, for
“cause,” immediately upon written notice by the
Company to Executive.
“Cause” for termination shall be
deemed to exist by reason of (a) any action by Executive
resulting in the conviction of Executive of, or the
entry
of
a plea of guilty or nolo contendere by Executive to, any crime
involving moral turpitude, any felony, or any misdemeanor
involving misconduct or fraud in business activities,
(b) any breach of a fiduciary duty involving personal
profit, (c) Executive's willful failure to perform his
duties hereunder, (d) Executive's willful misconduct,
recklessness or gross negligence in the performance of his
duties hereunder, (e) any action by Executive that
violates Section 6 below, (f) repeated refusals by
Executive to comply with the reasonable directives of the
Board; provided , however , that the Company may
terminate Executive's employment pursuant to Subsections
4.1(c), (e) or (f) above only after the failure by Executive
to correct or cure, or to commence and continue to pursue the
correction or curing of, such refusals within ten days after
receipt by Executive of written notice of the Board of each
specific claim of any such refusal and to complete such
correction or cure within 45 days after receipt of such
notice.
4.2
Without Cause . At the election of the
Company, at any time, upon 30 days written notice for any
reason whatsoever other than for cause.
4.3
Death or Disability . Upon
Executive’s death or 30 days after
Disability.
“Disability” or
“Disabled” means Executive is
unable, due to a physical or mental disability, to perform
the duties contemplated under this Agreement for a period of
three consecutive months or for a cumulative period of four
months within any six consecutive months. A
physician satisfactory to Executive and the Company will
determine if Executive is disabled. If Executive
and the Company cannot agree on a physician within 30 days of
either party’s written notice to the other, Executive
and the Company will each select a physician, who will
together select a third physician. The
determination of the physician(s) as to Disability will be
binding on all parties.
4.4
Termination by Executive . At the election
of Executive: (a) at any time if his health should become
impaired to an extent that makes the continued performance of
his duties hereunder hazardous to his physical or mental
health or his life, as certified by a physician designated by
Executive and reasonably acceptable to the Company;
(b) for “good reason” upon delivery of
written notice of such “good reason” to the
Company; or (c) upon giving ninety (90) days written
notice of termination, which termination shall be deemed a
breach by Executive of his obligations under this
Agreement. “Good
reason” means (i) the failure by the Company
to continue Executive in the position of Chairman of the
Board (or such other senior executive position as may be
offered by the Company and which Executive may in his sole
discretion accept); (ii) material diminution by the Board of
Executive’s responsibilities, duties or authority as
Chairman of the Board (or such other senior executive
position as may be offered by the Company and which Executive
may in his sole discretion accept) or assignment to Executive
of any duties inconsistent with Executive’s position as
Chairman of the Board (or such other senior executive
position as may be offered by the Company and which Executive
may in his sole discretion accept); (iii) failure by the
Company to pay and provide to Executive the compensation
provided in Section 3.1 above, which failure is not cured
within thirty (30) days after written notice of such failure
is delivered by Executive to the Company; (iv) requiring
Executive to be permanently based anywhere other than within
25 miles of the Company’s present office location in
Chadds Ford, Pennsylvania (excluding business related
travel); (v) a “Change in Control,”
as
such
term is defined in the Company’s 2001 Equity
Compensation Plan; or (vi) any other material breach of this
Agreement by the Company, which breach is not cured within
thirty (30) days after written notice of such breach is
delivered by Executive to the Company.
5.
Effect of Termination .
5.1
Termination for Cause . If the Company
terminates Executive’s employment for cause under
Section 4.1, the Company will pay to Executive the Base
Salary, Bonus and Benefits otherwise payable to Executive
under Sections 3.1, 3.2 and 3.4, pro rata
through the last day of Executive’s actual employment
by the Company.
5.2
Termination Without Cause .
(a) If
at any time during the Term (i) the Company terminates
Executive’s employment under Section 4.2 for any reason
other than for cause, or (ii) Executive dies or is Disabled
while on the Company’s business or as a result of
Executive’s performance of his duties under this
Agreement, the Company will pay to Executive or his estate,
as applicable, (1) severance equal to 24 months of base
salary then applicable under Section 3.1, (2) an amount equal
to two times the average, and if necessary annualized, Bonus
paid to Executive for the most recent two years of the Term,
and (3) an amount approximately equal to the amount Executive
would be required to pay to maintain full-time health
benefits under COBRA while receiving severance.
(b) Executive
acknowledges that if Executive’s employment is
terminated pursuant to Section 4.2, (1) the payments under
Section 5.2(a) represent the total obligation of the Company
to Executive under this Agreement. Further,
Executive is not required to mitigate damages to receive the
payments set forth in Section 5.2(a).
5.3
Termination for Death or Disability
. If
| 
