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EXHIBIT 10.40
EMPLOYMENT AGREEMENT WITH
MINH-CHAU PHAM
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EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is executed effective May 15, 2000,
between thehealthchannel.com, INC.., a Delaware corporation ("Employer") and
MINH-CHAU "M.C." PHAM, an individual ("Employee"), who agree as follows:
1. TERM OF EMPLOYMENT.
a. SPECIFIED PERIOD. Employer hereby employs Employee and
Employee accepts employment with Employer beginning on MAY 15, 2000, and
terminating in accordance with Section 10 of this Agreement (the "Employment
Term").
b. EMPLOYMENT TERM DEFINED. "Employment term" refers to the
entire period of employment of Employee by Employer, whether for the period
provided above, or whether terminated earlier as hereinafter provided or
extended by mutual agreement between Employer and Employee.
2. DUTIES AND OBLIGATIONS OF EMPLOYEE. Employee shall serve as the Web
Content Director of Employer. Employee shall faithfully and diligently perform
all professional duties and acts as Web Content Director as may be requested and
required of Employee by Employer or its Directors. Employee shall devote such
time and attention to the business of Employer as shall be required to perform
the required services and duties.
3. COMPENSATION
a. SALARY. Effective MAY 15, 2000, Employee shall earn an
annual salary of $60,000. Such salary shall continue for the Employment Term. On
MAY 15, 2000, Employee shall receive 25,000 shares of Common Stock of Employer.
On MAY 15, 2001, Employee shall receive an additional 25,000 shares of Common
Stock of the Employer
b. BENEFITS. Employee shall be entitled to any and all benefit
programs offered by Employer, including but not limited to the following:
i. VACATION: Ten days per year. Vacation time begins
to accrue on the date of this Agreement. Vacation may be accrued and carried
over from year to year up to a maximum of twenty days of vacation time;
ii. SICK/PERSONAL TIME: Five days per year;
iii. EXPENSE REIMBURSEMENT: Payable in accordance
with policies of Employer.
5. BINDING AUTHORITY. Neither Employer nor Employee shall have any
authority to bind the other in any respect; unless the written consent of the
other party is first obtained.
6. REPRESENTATIONS AND WARRANTIES. Employee represents and warrants
that this Agreement will not cause or require Employee to breach any obligation
to, or agreement or confidence with any other person. Employer represents and
warrants that it has the corporate authority and capacity to enter into and
execute this Agreement.
7. CONFIDENTIALITY. Employee hereby acknowledges that Employer has made
(or may make) available to Employee certain customer lists, product design
information, performance standards and other confidential and/or Proprietary
Information of Employer or licensed to Employer, including without limitation
trade secrets and copyrighted materials (collectively, the "Confidential
Material"). Except as essential to Employee's obligations under this Agreement,
neither Employee nor any agent, employee, officer, or independent contractor of
or retained by Employee shall make any disclosure of this Agreement, the terms
of this Agreement, or any of the Confidential Material. Except as necessary to
Employee's obligations under this Agreement, neither Employee nor any agent,
employee, officer, or independent contractor of or retained by Employee shall
make any duplication or other copy of any of the Confidential Material.
Immediately upon request from Employer, Employee shall return to Employer all
Confidential Material. Employee shall notify each person to whom any disclosure
is made that such disclosure is made in confidence, that the Confidential
Material shall be kept in confidence by such person, and that such person shall
be bound by the provisions of this Paragraph.
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Notwithstanding the foregoing, Employee shall be entitled to disclose
this Agreement and its terms to him tax advisors, attorneys, accountants, and
immediate family.
Employee shall have no obligation to maintain the confidentiality of or
refrain from using and material or information that: (a) is or becomes generally
known to the public or available to the public absent breach or violation of
this Agreement; (b) is rightfully received absent any confidentiality obligation
by Employee from a third party outside of the Employer absent breach or
violation of this Agreement; or (c) is required to be disclosed pursuant to a
valid order by a court or other governmental body required by law to be
disclosed.
8. PROPRIETARY INFORMATION OF THE EMPLOYER. For purposes of this
Agreement, "Proprietary Information of the Employer" shall mean any information,
observation, data, written material, record, document, computer program,
software, firmware, invention, discovery, improvement, development, tool,
machine, apparatus, appliance, design, promotional idea, customer list,
practice, process, formula, method, technique, trade secret, product and/or
research related to the actual or anticipated research, development, products,
organization, business or finances of Employer (or any of its affiliates).
Employer acknowledges that upon Employee's joining Employer and
thereafter in the performance of Employer's duties, Employee will bring certain
personal property, records, and tools of the trade, including customer lists and
contacts, onto Employer's premises, including certain computers and networks of
Employer, and Employee will further develop and employ the same for certain
purposes of fulfilling his duties under this Agreement. Nothing in Sections 7 or
8 of this Agreement shall be interpreted to interfere with Employee's continued
ownership and right to remove such personal property, records, and tools of the
trade, including customer lists and contacts, from Employer's premises and use
it for any lawful purpose.
9. COMPETITION. During the term of this Agreement, Employee shall not
own an interest in, operate or participate in, or be connected as an officer,
director, employee, agent, independent contractor, partner, shareholder or
principal of any business entity or person producing, designing, providing,
soliciting orders for, selling, distributing, or marketing products, goods,
equipment and/or services which compete with Employer's products, goods,
equipment and/or services. To the extent permitted by applicable law, for twelve
months following termination of this Agreement pursuant to Section 10 hereof,
Employee shall not undertake in the state of California any employment or
activity competitive with Employer's business, including without limitation the
inducement or solicitation of Employer's customers, if the duties or work of, in
connection with or related to such competitive employment or activity would or
might cause Employee to reveal or use any Proprietary Information of the
Employer. During the term of this Agreement and for twelve months following the
termination of this Agreement, Employee shall not employ or attempt to employ
(whether as an employee, consultant or otherwise) any of Employer's employees
who work in any area in which employee has been significantly engaged on behalf
of Employer.
Notwithstanding the foregoing, Employee is permitted to own up to 5% of
any class of securities of any corporation which is traded on the national
securities exchange or through NASDAQ and up to 2% of the shares of any
privately held company.
10. AT-WILL EMPLOYMENT. At-Will Employment. Either Employer or
Employment may terminate the term of employment at any time for any reason or no
reason at all.
11. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one document.
12. ATTORNEY'S FEES. In the event any litigation, arbitration,
mediation, or other proceeding ("Proceeding") is initiated by any party against
any other party to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing party in
such Proceeding shall be entitled to recover from the unsuccessful party all
reasonable costs, expenses, and reasonable attorney's fees relating to or
arising out of (a) such Proceeding (whether or not such Proceeding proceeds to
judgment), and (b) any post-judgment or post-award proceeding including without
limitation one to enforce any judgment or award resulting from any such
Proceeding. Any such judgment or award shall contain a specific provision for
the recovery of all such subsequently incurred reasonable costs, expenses, and
reasonable attorney's fees.
13. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of California which would
apply if both Parties were residents of California and this
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Agreement was made and performed in California. In any legal action involving
this Agreement or the parties' relationship, the Parties agree that the
exclusive venue for any lawsuit shall be in the state or federal court located
within the County of Orange, California. The Parties agree to submit to the
personal jurisdiction of the state and federal courts located within Orange
County, California.
14. BINDING EFFECT OF AGREEMENT: ASSIGNMENT; MERGER; DISSOLUTION. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their heirs, successors, assigns and legal representatives. This Agreement
shall be construed as a contract for personal services by Employee to the
Employer and shall not be assignable by Employee. In the event of the sale,
merger or consolidation of the Employer, Employee agrees that the Employer may
assign its rights and obligations hereunder to its successor or purchaser.
15. NOTICES. Any notice, request, instruction, or other document
required by the terms of this Agreement, or deemed by any of the Parties hereto
to be desirable, to be given to any other Party hereto shall be in writing and
shall be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the following addresses:
To Employer: thehealthchannel.com, Inc.
260 Newport Center Drive, Suite 250
Newport Beach, CA 92660
Fax: (949) 631-2544
Attn: Tom Lonergan
To Employee: Minh-Chau Pham
7108 Katella Avenue
Stanton, CA 90680
Fax: (714) 899-3826
With a copy to: Horwitz & Beam
Two Venture Plaza, Suite 350
Irvine, CA 92618
Attn: Christopher Jain, Esq.
Fax: (949) 453-0300
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such delivery. If
notice is given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given five (5) business days after deposit
thereof in the United States mail.
16. MODIFICATION. This Agreement may be modified only by a contract in
writing executed by the party to this Agreement against whom enforcement of such
modification is sought.
17. PRIOR UNDERSTANDINGS. This Agreement contains the entire agreement
between the parties to this Agreement with respect to the subject matter of this
Agreement, is intended as a final expression of such parties' agreement with
respect to such terms as are included in this Agreement, is intended as a
complete and exclusive statement of the terms of such agreement, and supersedes
all negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or
accompany the execution of this Agreement.
18. WAIVER. Any waiver of a default under this Agreement must be in
writing and shall not be a waiver of any other default concerning the same or
any other provision of this Agreement. No delay or omission in the exercise of
any right or remedy shall impair such right or remedy or be construed as a
waiver. A consent to or approval of any act shall not be deemed to waive or
render unnecessary consent to or approval of any other or subsequent act.
19. DRAFTING AMBIGUITIES. Each party to this Agreement has reviewed and
revised this Agreement. Each party to this Agreement has had the opportunity to
have such party's legal counsel review and revise this Agreement. The rule of
construction that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or of any
amendments or exhibits to this Agreement.
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20. RECEIPT OF COPY. Employee hereby acknowledges that she has received
a signed copy of this Agreement.
"EMPLOYER" "EMPLOYEE:
THEHEALTHCHANNEL.COM, INC., Minh-Chau "M.C." Pham, an individual
a Delaware corporation
/Don Shea /s/ Minh-Chau "M.C." Pham
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BY: Don Shea BY: Minh-Chau "M.C." Pham
ITS: President ITS: Director of Internet Content
