exv10w16



 





EXHIBIT 10.16




QUOVADX, INC.




HARVEY A. WAGNER EMPLOYMENT AGREEMENT




     This Agreement is made by and between Quovadx, Inc. (the “Company”) and
Harvey A. Wagner (“Executive”).



RECITALS




     A. This Agreement is intended to encourage Executive to join and remain
with the Company on an interim basis.



     B. The Board believes that it is in the best interests of the Company and
its stockholders to provide Executive with an incentive to begin and to
continue his employment and to motivate Executive to maximize the value of the
Company for the benefit of its stockholders.



AGREEMENT




     1. Duties and Scope of Employment.



         (a) Positions; Employment Commencement Date. Executive shall commence
employment under this Agreement upon May 1, 2004 (the “Employment Commencement
Date”). On and after the Employment Commencement Date, Executive shall serve
as President and Chief Executive Officer, reporting to the Board of Directors
of the Company (the “Board”). On April 11, 2004, Executive shall be appointed
as a member of the Board. Subject to the termination and notice provisions of
Section 2 hereof, Executive agrees to remain employed with the Company until
the date upon which a successor Chief Executive Officer commences employment
with the Company. However, in the event that the Company desires to retain
Executive as its regular Chief Executive Officer, then this Agreement shall
terminate and the parties hereto shall negotiate a new employment agreement
covering the terms and conditions of Executive’s ongoing role. The period of
Executive’s employment hereunder is referred to herein as the “Employment
Term.”



         (b) Obligations. During the Employment Term Executive shall devote his
full business efforts and time to the Company and shall not provide services to
any other entity without the prior approval of the Compensation Committee of
the Board (the “Compensation Committee); provided, however, that Executive
shall be permitted to continue rendering services as a member of the boards of
directors on which he serves as of the Employment Commencement Date.



     2. At-Will Employment; Notice. Executive and the Company understand and
acknowledge that Executive’s employment with the Company constitutes “at-will”
employment. Subject to the cure provisions of Section 5 herein for a Cause
termination, Executive and the Company acknowledge that this employment
relationship may be terminated at any time, with or without good cause or for
any or no cause, at the option of either the Company or Executive, upon 15
days’ paid prior notice to the other party. No severance or other payments or
benefits (other than statutory benefits such as COBRA) shall be due to either
party upon any such termination or employment. Executive and the Company also
agree that at the end of Executive’s employment with the



 









 





Harvey Wagner

Employment Agreement

Page 2 of 6


Company, the Board shall consider retaining Executive as a Board member.
Following such consideration, in the event that the Board asks Executive to
resign from the Board within thirty days following his termination of
employment, Executive agrees to promptly resign from the Board.



     3. Compensation.



         (a) Base Salary. While employed by the Company, the Company shall pay
Executive as compensation for his services a base salary at the daily rate of
two thousand dollars ($2,000) per day. Subject to review of Executive’s
submitted work schedule and approval by the Compensation Committee, such salary
shall be paid periodically in accordance with normal Company payroll practices
and subject to the usual, required withholding.



         (b) Stock Option. On May 1, 2004, Executive will receive a stock option
grant covering one hundred thousand (100,000) shares of Company stock (the
“Stock Option”), pursuant to the Company’s 1997 Stock Plan (the “1997 Plan”)
and standard form of agreement thereunder, modified as specified herein (the
“Option Agreement”), with a strike price equal to 100% of the Fair Market Value
(as such term is defined in the 1997 Plan) on the grant date and an
eighteen-month termination exercise period. Subject to accelerated vesting as
specified in Section 5 hereof, the Stock Option shall vest 100% on the start
date of the successor Chief Executive Officer of the Company (including if
Executive becomes the regular Chief Executive Officer following a decision by
the Board), conditioned upon Executive’s service as an employee through such
date. To the extent permitted by law, the Stock Option shall qualify as an
Incentive Stock Option under Section 422 of the Code. Except as specified
otherwise herein, the Stock Option is in all respects subject to the terms,
definitions and provisions of the Company’s 1997 Plan and the standard form of
stock option agreement thereunder, which documents are incorporated by
reference. If there is any conflict between this Agreement and the 1997 Stock
Plan or Stock Option, the terms of this Agreement shall govern.



         (c) Director Plan Option. Executive shall receive the First Option, as
such term is defined in the Company’s 1999 Director Stock Option Plan (the
“Director Plan”) in connection with his initial appointment to the Board on
April 11, 2004, which option shall be subject to the terms and conditions set
forth in the Director Plan.



         (d) Employee Benefits. During the Employment Term, Executive shall be
eligible to participate in the employee benefit plans maintained by the Company
that are applicable to other senior management to the full extent provided for
under those plans.



         (e) Denver Housing and Automobile. During the Employment Term, Executive
shall be reimbursed by the Company for Denver area housing (including
reasonable cleaning and laundry expenses) and automobile expenses as mutually
agreed to and approved by the Compensation Committee.



 









 





Harvey Wagner

Employment Agreement

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         (f) Business Expenses. During the Employment Term, Executive shall be
reimbursed for reasonable business travel and other business expenses in
accordance with the terms of the Company’s business expense reimbursement
policy. During the Employment Term, Executive shall also be reimbursed for his
weekend air travel expenses from Denver to Atlanta and Atlanta to Denver, which
may be first-class.



     4. Death or Disability of Executive. Upon Executive’s death or Disability
while Executive is an employee of the Company, then employment hereunder shall
automatically terminate and all payments of compensation by the Company to
Executive hereunder shall immediately terminate (except as to amounts already
earned).



     For this purpose, “Disability” shall mean that the Executive has been
unable to perform with reasonable accommodation his duties as Chief Executive
Officer and President of the Company as the result of his incapacity due to
physical or mental illness, and such inability is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive’s legal representative (such agreement as to
acceptability not to be unreasonably withheld).



     5. Severance. In the event that Executive is terminated without Cause (as
defined herein) prior to the Stock Option vesting, then Executive shall receive
vesting as to 16.67 % of the shares originally subject to the Stock Option for
his service through the 11th day of each month following April 11, 2004 (e.g.,
if Executive is terminated without Cause on May 30, 2004, he will receive
vesting as to 16.67% of the Stock Option shares). Moreover, in the event
Executive is terminated without Cause within 30 days prior to the start date of
a successor regular (non-interim) Chief Executive Officer, then Executive shall
vest 100% in the Stock Option Shares.



     For the purposes of this Section 5, “Cause” means (i) Executive is
convicted of or pleas nolo contendere or guilty to a felony; provided that
Executive may be suspended without compensation or continued option vesting if
charged with a felony, with full reinstatement and back-pay if Executive is
subsequently exonerated or the charges are dismissed; (ii) Executive engages in
conduct in connection with his employment by the Company that constitutes gross
neglect or gross misconduct; (iii) an act of personal dishonesty taken by
Executive in connection with his responsibilities as an employee and intended
to result in personal enrichment of Executive; (iv) following delivery to
Executive of a written demand for performance from the Company which describes
the basis for the Company’s reasonable belief that Executive has not
substantially performed his duties, continued violations by Executive of
Executive’s obligations to the Company which are demonstrably willful and
deliberate on Executive’s part; provided, however, that failure of Executive to
achieve certain results, such as the Company’s business plan, that is not the
result of Executive’s demonstrably willful and deliberate dereliction of duty
shall not constitute “Cause.” Anything herein to the contrary notwithstanding,
Executive’s employment shall not be terminated for “Cause” above unless



 









 





Harvey Wagner

Employment Agreement

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written notice stating the basis for the termination is provided to
Executive, Executive is given fifteen (15) days after receipt of such notice to
cure the neglect or conduct that is the basis of such claim (but only with
respect to curable actions or failures to act).



     6. Assignment. This Agreement shall be binding upon and inure to the
benefit of (a) the heirs, beneficiaries, executors and legal representatives of
Executive upon Executive’s death and (b) any successor of the Company. Any
such successor of the Company shall be deemed substituted for the Company under
the terms of this Agreement for all purposes. As used herein, “successor”
shall include any person, firm, corporation or other business entity which at
any time, whether by purchase, merger or otherwise, directly or indirectly
acquires all or substantially all of the assets or business of the Company.
None of the rights of Executive to receive any form of compensation payable
pursuant to this Agreement shall be assignable or transferable except through a
testamentary disposition or by the laws of descent and distribution upon the
death of Executive. Any attempted assignment, transfer, conveyance or other
disposition (other than as aforesaid) of any interest in the rights of
Executive to receive any form of compensation hereunder shall be null and void.



     7. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given if (a)
delivered personally or by facsimile, (b) one (1) day after being sent by
Federal Express or a similar commercial overnight service, or (c) three (3)
days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors in interest
at the following addresses, or at such other addresses as the parties may
designate by written notice in the manner aforesaid:



	 	 	 
	

	 	If to the Company:
	 
	 	 
	

	 	Chief Financial Officer
	

	 	Quovadx, Inc.
	

	 	6400 South Fiddler’s Green Circle
	

	 	Englewood, CO. 80111
	 
	 	 
	If to Executive:

	 	Harvey A. Wagner
	

	 	2500 Peachtree Road, NW
	

	 	#310 North
	

	 	Atlanta, GA 30305







     8. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.



 









 





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Employment Agreement

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     9. Entire Agreement. This Agreement, the agreements referenced herein and
the Company’s standard proprietary information agreement to be entered into by
and between the Company and Executive represent the entire agreement and
understanding between the Company and Executive concerning Executive’s
employment relationship with the Company, and supersede and replace any and all
prior agreements and understandings concerning Executive’s employment
relationship with the Company.



     10. Dispute Resolution. The Executive and the Company shall first meet to
settle any dispute through good faith negotiations or non-binding mediation in
Denver, Colorado. If not settled by good faith negotiation or non-binding
mediation between the parties within thirty (30) days from the date one party
requests in writing to meet the other party, then to the extent permitted by
law, any dispute or controversy arising out of, relating to or in connection
with this Agreement, or the interpretation, validity, construction,
performance, breach or termination thereof, shall be finally settled by binding
arbitration conducted in Denver, Colorado, provided, however, that the parties
retain their right to, and shall not be prohibited, limited or in any other way
restricted from, seeking or obtaining equitable relief from a court having
jurisdiction over the parties. Such arbitration shall be conducted in
accordance with the employment arbitration rules of the American Arbitration
Association in effect at that time. The judgment upon the determination or
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. In all disputes hereunder, the prevailing party shall
reimburse the other party for legal fees and expenses, to the extent permitted
by law.



     Executive understands that nothing in Section 10 modifies Executive’s
at-will status. Either the Company or Executive can terminate the employment
relationship at any time, with or without cause, subject to the terms of this
Agreement.



     EXECUTIVE HAS READ AND UNDERSTANDS SECTION 10 WHICH DISCUSSES ARBITRATION.
EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AGREES, TO THE
EXTENT PERMITTED BY LAW, TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING
TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION
AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A
JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL
ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP.



     11. Covenant Not to Solicit. In consideration for the benefits Executive
is to receive herein Executive agrees that he will not, at any time during the
twelve month period following his termination date, directly or indirectly
solicit any individuals to leave the Company’s employ for any
reason or interfere in any other manner with the employment relationships
at the time existing between the Company and its current employees.



 









 





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     12. No Oral Modification, Cancellation or Discharge. This Agreement may
only be amended, canceled or discharged in writing signed by Executive and the
Chairman of the Compensation Committee of the Board.



     13. Withholding. The Company shall be entitled to withhold, or cause to
be withheld, from payment any amount of withholding taxes required by law with
respect to payments made to Executive in connection with his employment
hereunder.



     14. Governing Law. This Agreement shall be governed by the laws of the
State of Colorado.



     15. Effective Date. This Agreement is effective upon the date it has been
executed by both parties.



     16. Acknowledgment. Executive acknowledges that he has had the
opportunity to discuss this matter with and obtain advice from his private
attorney, has had sufficient time to, and has carefully read and fully
understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement.



IN WITNESS WHEREOF, the undersigned have executed this Agreement:




QUOVADX, INC.




	 
	/s/ J. Andrew Cowherd


	J. Andrew Cowherd








Date: April 9, 2004




EXECUTIVE




	 
	/s/ Harvey A. Wagner


	Harvey A. Wagner








Date: April 9, 2004