exv10w15



 





EXHIBIT 10.15




Quovadx, Inc.

6400 Fiddler’s Green Circle, Suite 1000

Englewood, Colorado 80111










Employment Letter




April 7, 2004




Mr. Melvin Keating

18 Driftwood Drive

Livingston, NJ 07039



Dear Melvin:


Please allow this letter to serve as the entire agreement between Quovadx, Inc.
(the “Company”) and you, Melvin Keating (the “Employee”) with respect to
certain aspects of your employment with the Company.



Acknowledgement


The Company acknowledges and agrees that the Employee is and will remain a
partner of, and has and will retain an interest in, Tatum CFO Partners, LLP
(“Tatum”), which will benefit the Company in that the Employee will have access
to certain Tatum resources. The Company further acknowledges and agrees that
the Employee has requested that a portion of the compensation otherwise payable
to the Employee instead be paid to Tatum as compensation for Tatum’s provision
of resources to the Employee as provided in the Resources Agreement between the
Company and Tatum, dated on or about the date of this agreement. The Company
and the Employee agree that any payments made to Tatum will not be included in
the Employee’s compensation for purposes of determining taxable income and
should not be reflected as compensation in the Employee’s W-2 report.


Beginning Date


The Employee will work for the Company beginning on April 13, 2004. This
contract will expire on the later of (i) July 31, 2004, or (ii) the date a
full-time chief financial officer commences employment with the Company.


Compensation


Salary: $28,000 per month during the Employee’s engagement with the Company


16 2/3% of the salary otherwise payable to the Employee instead shall be paid
to Tatum. Based on a salary of $28,000 per month, the Employee will be paid
$23,333 per month.


Cash Bonus: Twenty five (25) percent of any bonus otherwise payable to the
Employee for the duration of his engagement instead will be paid to Tatum at
the end of such engagement. The Employee will be eligible to receive a bonus
based on milestones to be set by the Board of Directors and will be paid at the
discretion of the Board of Directors predicated on the achievement of the
milestones so set. It is suggested that the milestones be established during
the first two (2) weeks of the engagement.


Expenses: All reasonable out of pocket expenses, which will include reasonable
living expenses away from home (New Jersey), travel to the Company location in
Colorado (based on a reasonable frequency schedule) as well as other expenses
approved by the Company and consistent with the Company’s expense reimbursement
policy.



 









 







Quovadx, Inc.







Page 2


Benefits



The Company will provide the Employee with written evidence that the Company
maintains adequate director and officer insurance to cover the Employee at no
additional cost to the Employee, and the Company will maintain such insurance
at all times while this agreement remains in effect.


The Company agrees to indemnify the Employee to the full extent permitted by
law for any losses, costs, damages, and expenses, including reasonable
attorneys’ fees, as they are incurred, in connection with any cause of action,
suit, or other proceeding arising in connection with employment with the
Company including, but not limited to, indemnification for deductibles on
insurance policies.



Termination



The Company may terminate the Employee’s employment for any reason upon at
least 30 days’ prior written notice to the Employee, such termination to be
effective on the date specified in the notice, provided that such date is no
earlier than 30 days from the date of delivery of the notice. Likewise, the
Employee may terminate his or her employment for any reason upon at least 30
days’ prior written notice to the Company, such termination to be effective on
the date 30 days following the date of the notice. The Employee will continue
to render services and to be paid during such 30-day period, regardless of who
gives such notice. The Employee may terminate this letter agreement
immediately if the Company has not remained current in its obligations under
this letter or if the Company engages in or asks the Employee to engage in or
to ignore any illegal or unethical conduct.


This agreement will terminate immediately upon the death or permanent
disability of the Employee. For purposes of this agreement, permanent
disability will be as defined by the applicable policy of disability insurance
or, in the absence of such insurance, by the Company’s Board of Directors
acting in good faith.


The Employee’s Salary will be prorated for the final pay period based on the
number of days in the final pay period up to the effective date of termination
or expiration.


If the termination of this Agreement is within 90 days of the Beginning
Date, the Employee will be entitled to receive a payment equal to the full
three (3) month’s value of the contract less any monies paid through
termination date plus all Cash Bonuses due as indicated in the Cash Bonus
section.



Miscellaneous



This agreement contains the entire agreement between the parties with respect
to the matters contained herein, superseding any prior oral or written
statements or agreements.


The provisions in this agreement concerning the payment of Salary and Bonuses
will survive any termination or expiration of this agreement.


Neither party will be liable for any delay or failure to perform under this
Agreement (other than with respect to payment obligations) if and to the extent
such delay or failure is a result of an act of God, war, earthquake, civil
disobedience, court order, labor dispute, or other cause beyond such party’s
reasonable control.


 









 






Quovadx, Inc.







Page 3

The terms of this letter agreement are severable and may not be amended except
in a writing signed by the parties. If any portion of this agreement is found
to be unenforceable, the rest of this agreement will be enforceable except to
the extent that the severed provision deprives either party of a substantial
portion of its bargain.


This agreement will be governed by and construed in all respects in accordance
with the laws of the State of Colorado, without giving effect to
conflicts-of-laws principles.


Each person signing below is authorized to sign on behalf of the party
indicated, and in each case such signature is the only one necessary.


Please sign below and return a signed copy of this letter to indicate your
agreement with its terms and conditions.


Sincerely yours,



Quovadx, Inc.



	 	 	 	 	 
	By:

	 	/s/ James B. Hoover	 	 
	

	 	
 	 	 
	Signature	 	 
	 
	Name:   Jim Hoover
	 	
	Title:  Director
	 	
	

	 	
 	 	 







Acknowledged and agreed by:



	 	 	 	 	 
	

	 	EMPLOYEE:
	 
	 	 	 	 
	

	 	/s/ Melvin L. Keating
	

	 	
 
	

	 	(Signature)
	 
	 	 	 	 
	

	 	Melvin L. Keating
	

	 	
 
	

	 	(Print name)
	 
	 	 	 	 
	

	 	Date:
	 	4/8/04
	

	 	 	
 







 









 










April 7, 2004




Quovadx, Inc.

6400 Fiddler’s Green Circle, Suite 1000

Englewood, CO 80111



Dear Mr. Hoover:


We are pleased that you have selected a Tatum Partner to be an employee of your
company. Because your Tatum Partner will be your employee, while at the same
time having ongoing access to the resources of Tatum Partners, it is important
that we explain and agree how Tatum’s resources are accessed and the
responsibility for the use of those resources. This letter and the attached
Schedule A will serve as the entire agreement between Quovadx, Inc. (the
“Company”) and Tatum CFO Partners, LLP (“Tatum”) (the “Resources Agreement”).


Tatum understands that the Company desires to hire Melvin Keating one of our
partners, as an employee of the Company (the “Employee”) and acknowledges that
the Employee is and will remain a partner in our firm so that he or she will
have access to our firm’s resources for use in his or her employment with the
Company. These resources (the “Resources”) include a platform for knowledge
sharing, e.g., database access, specialized software and patent-pending
processes, specialized work product and training, and virtual access to other
Tatum partners through Tatum’s proprietary internet portal (the “Tatum
Portal”).


This Resources Agreement sets forth the rights of the Company, through the
Employee, to use such resources for the benefit of the Company, and for the
payment of compensation for such resources in lieu of an amount otherwise
payable to the Employee for use of such resources.


Since the Employee will be under the control and direct management of the
Company, and not Tatum, we cannot assume the same risks as if Tatum itself
served as part of the Company’s management team. Tatum’s obligations to the
Company are exclusively those set forth in this Resources Agreement. Schedule
A sets forth provisions dealing with the limitation of Tatum’s liability and
other related terms and conditions, which allow Tatum to provide this unique
relationship. This offers both the value of a traditional employment
relationship, through separate employment directly with the Employee, and the
resources and benefits of a national firm through the provision of Resources
pursuant to this Resources Agreement.



Allocation of Compensation



The Company acknowledges and agrees that the Employee has requested that a
portion of the compensation, as it may be adjusted from time to time, that
otherwise would be payable to the Employee, instead be paid to Tatum as
compensation for Tatum’s provision of Resources to the Employee as described in
this Resources Agreement (the “Tatum Compensation”):


The Company will pay Tatum, in lieu of the Employee, a portion of the
Employee’s Salary (as defined below) and a portion of any Bonuses (also as
defined below) otherwise payable to the Employee as follows:



 









 







Page 2


Salary: 16 2/3% of the Employee’s Salary

Bonus: 25% of any Cash Bonus of the Employee


For purposes of this Resources Agreement, “Salary” means any compensation,
except Bonuses, paid the Employee for services, including any payments due to
termination of employment, severance, or like payments. For purposes of this
Resources Agreement, “Cash Bonus” means any contingent cash consideration
(i.e., not yet realized in cash) that is paid in connection with services
rendered by the Employee.


Payments of Tatum Compensation related to Salary and Cash Bonus will be made
directly to Tatum at the same time as such payments are made to the Employee.
Such payments should be made by direct deposit through the Company’s payroll,
or, if not available, by check. The Company and Tatum agree that any payments
made to Tatum that would otherwise be payable to the Employee will not be
included in the Employee’s compensation for purposes of determining taxable
income and should not be reflected as compensation in the Employee’s W-2
report.



Termination



This Resources Agreement will terminate immediately upon the effective date of
termination or expiration of the Employee’s employment with the Company.


Tatum’s obligation to provide the Resources will terminate immediately if and
when the Employee ceases to be a partner of Tatum, even if the Employee
continues to render services to the Company as an employee or independent
contractor. If the Employee ceases to be a partner of Tatum but either
continues to render services to the Company as an employee or independent
contractor or ceases to render services to the Company but resumes rendering
services to the Company within twelve (12) months thereafter, the Company
acknowledges that Tatum will have been instrumental in providing Resources to
the Employee, which benefits the Company. Therefore, the Company agrees to pay
Tatum the Tatum Compensation as provided in the Allocation of Compensation
section above for a period of twelve (12) months following the date of
termination or expiration of this Resources Agreement or following the date of
resumption of the Employee’s services to the Company, as applicable, as
compensation for such Resources and the right of the Company to continue using
the work product derived from the Resources. For this purpose, Salary will
include all compensation paid for the Employee’s rendering services to the
Company, even if the Employee is engaged by the Company as an independent
contractor, and the Tatum Compensation will be payable on any Cash or Equity
Bonuses for which the Employee becomes eligible during such 12-month period,
regardless of when they vest or are paid.


In the event that either party commits a breach of this Resources Agreement and
fails to cure the same within ten (10) days following delivery by the
non-breaching party of written notice specifying the nature of the breach, the
non-breaching party will have the right to terminate this Resources Agreement
immediately effective upon written notice of such termination.



Miscellaneous



This Resources Agreement contains the entire agreement between Tatum and the
Company, superseding any prior oral or written statements or agreements.


Neither the Company nor Tatum will be deemed to have waived any rights or
remedies accruing under this Resources Agreement unless such waiver is in
writing and signed by the party electing to waive the right or remedy. This
Resources Agreement binds and benefits the successors of Tatum and the Company.


 









 



Page 3


Neither party will be liable for any delay or failure to perform under this
Agreement (other than with respect to payment obligations) if and to the extent
such delay or failure is a result of an act of God, war, earthquake, civil
disobedience, court order, labor dispute, or other cause beyond such party’s
reasonable control.


The terms of this Resources Agreement are severable and may not be amended
except in a writing signed by Tatum and the Company. If any portion of this
Resources Agreement is found to be unenforceable, the rest of the Resources
Agreement will be enforceable except to the extent that the severed provision
deprives either party of a substantial portion of its bargain.


The provisions in this Resources Agreement concerning payment of the Tatum
Compensation, limitation of liability, and arbitration will survive any
termination or expiration of this Resources Agreement.


This Resources Agreement will be governed by and construed in all respects in
accordance with the laws of the State of Colorado, without giving effect to
conflicts-of-laws principles.


Each person signing below is authorized to sign on behalf of the party
indicated, and in each case such signature is the only one necessary.



Mailing Address for Payments only:



Tatum CFO Partners, LLP

P.O. Box 403291

Atlanta, Georgia 30384-3291



Electronic Payment Instructions for Deposit and Tatum Fees:


Bank Name: Bank of America

Branch: Atlanta

Routing Number: 061 000 052

Account Name: Tatum CFO Partners, LLP

Account Number: 003 279 247 763


Please sign below and return a signed copy of this letter to indicate the
Company’s agreement with its terms and conditions.



We look forward to serving you.



Sincerely yours,



TATUM CFO PARTNERS, LLP



/s/ John Luongo



Signature



John Luongo



(Print name)

Area Managing Partner for TATUM CFO

PARTNERS, LLP



 








 





Page 4



Acknowledged and agreed by:



	 	 	 
	QUOVADX, INC.

	 
	By:

	 	/s/ James B. Hoover
	

	 	
 
	 
	Title:

	 	Director
	

	 	
 
	 
	Date:

	 	April 9, 2004
	

	 	
 





 









 





Schedule A




Disclaimers and Related Terms




Disclaimers & Limitations of Liability



It is to be understood that Tatum does not have a contractual obligation to the
Company other than to make its resources available to the Employee by virtue of
that Employee being a partner in Tatum. Tatum Compensation will be for the
resources provided and not as compensation as an employee or partner of or in a
joint venture with the Company or as an employer of the Employee, and Tatum
will have no control or management over the Employee. Tatum’s obligation under
this Resources Agreement is to make Tatum’s resources available to the Employee
for the benefit of the Company under the terms and conditions of this Resources
Agreement.


The Company acknowledges that any Resources will be provided by Tatum to the
Employee as a tool to be used in the discretion of the Employee. Tatum makes
no representation or warranty as to the accuracy or reliability of reports,
projections, forecasts, or any other information derived from use of the
Resources, and Tatum will not be liable for any claims of reliance on such
reports, projections, forecasts, or information. Tatum disclaims all
warranties, either express or implied, including, but not limited to, implied
warranties of merchantability and fitness for a particular purpose, with regard
to all information and applications that may be provided by the Resources or
the Tatum Portal. Tatum will not be liable for any non-compliance of reports,
projections, forecasts, or information or services with federal, state, or
local laws or regulations.


The Company agrees that, with respect to any claims the Company may assert
against Tatum in connection with this Resources Agreement or the relationship
arising hereunder, Tatum’s total liability will not exceed amounts Tatum
Corporation receives (or received) under this Resources Agreement.


As a condition for recovery of any liability, the Company must give Tatum
written notice of the alleged basis for liability within thirty (30) days of
discovering the circumstances giving rise thereto, provided that the failure of
the Company to give such notice will only affect the rights of the Company to
the extent that Tatum is actually prejudiced by such failure. In any event,
the Company must assert any claim against Tatum within six (6) months after
discovery or thirty (30) days after the termination or expiration of this
Resources Agreement, whichever is earlier.


Tatum will not be liable in any event for incidental, consequential, punitive,
or special damages, including without limitation, any interruption of business
or loss of business, profit, or goodwill.



Arbitration



If the parties are unable to resolve any dispute arising out of or in
connection with this Resources Agreement, either party may refer the dispute to
arbitration by a single arbitrator selected by the parties according to the
rules of the American Arbitration Association (“AAA”), and the decision of the
arbitrator will be final and binding on both parties. Such arbitration will be
conducted by the Englewood, Colorado office of the AAA and governed by Colorado
State law. In the event that the parties fail to agree on the selection of the
arbitrator within thirty (30) days after either party’s request for arbitration
under this paragraph, the arbitrator will be chosen by AAA. The arbitrator may
in his discretion order documentary discovery, but in no event may depositions
be taken. The arbitrator will have no authority to award punitive damages.
Judgment on the award of the arbitrator may be entered in and enforced by any
court of competent jurisdiction. The arbitrator will have no authority to
award damages in excess or in contravention of this Schedule A and may not
amend or disregard any provision of this Schedule A. Notwithstanding the
foregoing, no issue related to the ownership of intellectual property will be
subject to arbitration but will instead be subject to determination by a court
of competent jurisdiction.



 









 







Page 2

Schedule A



Miscellaneous


Tatum represents to the Company that Tatum has conducted its standard screening
and investigation procedures with respect to the Employee becoming a partner in
Tatum, and the results of the same were satisfactory to Tatum. Except as
provided in the immediately preceding sentence, Tatum does not make any
representations or warranties concerning the Employee’s qualifications or
services.


Tatum shall be entitled to receive all reasonable costs and expenses incidental
to the collection of overdue amounts under this Resources Agreement, including
but not limited to attorneys’ fees actually incurred.