UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 16, 2017
HealthWarehouse.com, Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 0-13117 | 22-2413505 |
| (State or other jurisdiction | (Commission File Number) | (IRS Employer |
| of incorporation) | Identification No.) |
| 7107 Industrial Road | |
| Florence, Kentucky | 41042 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (800) 748-7001
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 DFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers. |
On January 18, 2017, the Board of Directors of HealthWarehouse.com, Inc. (the “Company”), appointed John Pauly as the Chief Operating Officer and interim President and Chief Executive Officer of the Company. Mr. Pauly will be paid an annual salary of $100,000. The terms and conditions of employment are contained in a written employment agreement attached hereto as Exhibit 10.1.
Effective January 16, 2017, Mr. Jeffrey Holtmeier, Chief Executive Officer of the Company, has left the Company to pursue other interests, and in connection with his departure, has also resigned his position as a director of the Company. On January 19, 2017, the Company and Mr. Holtmeier entered into a Separation and Release Agreement in connection with his departure. A copy of the Separation and Release Agreement is attached hereto as Exhibit 10.2.
On January 20, 2017, the Company issued a press release in connection with the appointment of Mr. Pauly and the departure of Mr. Holtmeier. A copy of the press release is attached hereto as Exhibit 99.1.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
The following exhibits are included herewith.
| Exhibit Number | Description | |
| 10.1 | Employment Agreement effective as of January 18, 2017, by and between HealthWarehouse.com, Inc., and John Pauly. | |
| 10.2 | Separation and Release Agreement dated January 19, 2017 between HealthWarehouse.com Inc. and Jeffrey Holtmeier. | |
| 99.1 | Press Release of HealthWarehouse.com, Inc. dated January 20, 2017. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Date: January 20, 2017 | HEALTHWAREHOUSE.COM, INC. | ||
| By: | /s/ Thomas W. Bosse | ||
| Thomas W. Bosse | |||
| Acting Secretary | |||
Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into effective as of January 18, 2017, by and between HealthWarehouse.com, Inc., a Delaware corporation (the "Company") with its principal office and place of business located at 7107 Industrial Road, Florence, KY 41042, and John Pauly (“Employee”).
RECITAL
The Employee has experience in the pharmaceutical field. The Company desires to hire the Employee for this expertise. Therefore, the Company and the Employee mutually desire to enter into this Agreement in order to set forth the specific terms of the Employee’s employment by the Company.
In consideration of the promises and mutual covenants, agreements and undertakings of the parties hereinafter set forth, the Company and the Employee agree as follows:
1. Employment. The Company employs the Employee, and the Employee accepts employment by the Company, on the terms and conditions hereinafter set forth.
2. Term of Employment. The term of the Employee’s employment with the Company (“Term”) shall be for a period commencing on January 18, 2017, and continuing through the close of business on December 31, 2017, unless and until terminated as hereinafter provided. This Agreement shall renew for subsequent one (1) year terms unless terminated by either party as provided herein. For the purposes of this Agreement, any renewal of this Agreement shall be considered part of the Term.
3. Services and Duties. Employee agrees to work full-time in the position of Chief Operating Officer for Company, subject to the supervision and direction of the Company’s Chief Executive Officer, or at such times that there is no Chief Executive Officer, then the Board of Directors, at such locations as Company may direct. At the Board of Director’s request, Employee also agrees to serve in such other roles as determined by the Company, including but not limited to as interim Chief Executive Officer and President. Employee agrees to abide by all policies and rules of Company at all times, and to carry out all such duties as may be assigned to him from time to time by Company. Employee agrees to remain committed to the performance of his duties hereunder, and Employee agrees to use his best efforts to perform those duties faithfully, industriously and with maximum application of experience, ability and talent.
| 4. | Compensation and Benefits. For his services pursuant to this Agreement, the Company agrees to compensate the Employee with the following salary and other benefits. |
| (a) | Salary. The Company shall pay the employee an annual salary in the amount of $100,000 to be paid in accordance with normal payroll practices of the company. This salary will be reviewed by the compensation committee prior to the end of each term for possible merit increases. |
| (b) | Benefits. The Employee shall be entitled to participate in the employee and fringe benefit plans and programs of the Company in which employees of the Company are generally eligible to participate from time to time during the Employment Period, subject to and on a basis consistent with the terms, conditions, eligibility requirements and overall administration of such plans and programs. |
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| (c) | Vacation. Employee shall be eligible for five (5) weeks’ vacation annually. |
| (d) | Business, Travel and Entertainment Expenses. The Company shall also pay or reimburse the Employee for other reasonable and necessary business, travel and entertainment expenses incurred by the Employee on behalf of the Company or otherwise in connection with his services pursuant to this Agreement, in accordance with the Company’s normal policies and procedures on reimbursements. |
| 5. | Termination of Term. The Term of the Employee’s employment hereunder shall be subject to termination as follows: |
| (a) | Termination by Company for “Cause”. The Company shall have the right to immediately terminate this Agreement for cause. Cause is defined as any of the following based on a good faith and reasonable belief by the Company: (i) material breach of Employee’s obligations and agreements hereunder; (ii) gross neglect in the conduct of Employee’s duties hereunder; (iii) insubordination by Employee; (iv) dishonesty by Employee; (v) unauthorized disclosure of trade secrets by Employee; (vi) disability of Employee that lasts greater than one (1) year and renders Employee unable to work; or (vii) conviction of Employee of a criminal offense in violation of state or federal law and which results in a sentence to incarceration or probation, subject, however, to the provisions of Section (5)(c) below. |
| (b) | Termination by Employee for “Cause”. The Employee shall have the right to terminate the Term for cause in the event of any material breach by the Company of its obligations and agreements hereunder, subject, however, to the provisions of Section (5)(c) below. |
| (c) | Procedure for Termination for “Cause”. In order to terminate for Cause, and as a condition to exercising such right to terminate for Cause, the party desiring to terminate the Term shall be obligated to give the other party, either the Employee or the Company, at least twenty (20) days’ prior written notice of such intention to terminate, specifying in detail the grounds or reasons for such termination for cause. Following any such notice of termination for cause (other than termination by the Company under Section 5(a)(vii)), the party receiving such notice shall be permitted a reasonable opportunity, and the party giving such notice shall be obligated in good faith to permit such reasonable opportunity to the party receiving such notice, to endeavor during such twenty (20) day notice period to cure such claimed cause to the reasonable satisfaction of the party desiring to terminate the Term. |
| (d) | Termination upon Employee’s Death. The Term shall terminate upon the Employee’s death. |
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| (e) | Termination by Company “Without Cause”. The Company shall have the right to terminate the Term without cause upon 30 days’ advance written notice to Employee, or in lieu thereof by paying the Employee, in addition to any amounts the Employee is due under Section 4 hereof, his then-current daily Base Salary for each day the Company's written notice of termination is less than 30 days. |
| (f) | Termination by Employee “Without Cause”. The Employee shall have the right to terminate the Term without cause subject to delivery of written notice to the Company at least thirty (30) days prior to the date of termination. |
| (g) | Termination by Employee Due to Specific Events. The Employee shall have the right to terminate the Term upon thirty (30) days prior written notice to the Company in the event that any of the following events occurs: |
| (i) | The Company merges or consolidates with an unrelated entity, is sold to another entity, or dissolves (in which case notice must be received prior to the Company’s change in control), and this Agreement is not assumed by the successor to the Company. |
| (ii) | The Company substantially changes the duties of the Employee. |
| (h) | Effect of Termination of Term. Upon termination of the Term of the Employee’s employment pursuant to this Agreement, the Company shall be obligated to pay the accrued salary and benefits through the effective date of such termination and provide the other benefits to the Employee (or his designated beneficiary or estate in the event of his death), in accordance with the terms and provisions of this Agreement. |
| 6. | Restrictive Covenants. |
| (a) | Nondisclosure of Confidential Information. The Employee acknowledges that during the course of the Employee's employment with the Company, the Employee has had or will have access to and knowledge of certain information that the Company considers confidential, and the release of such information to unauthorized persons would be extremely detrimental to the Company. As a consequence, the Employee hereby agrees and acknowledges that the Employee owes a duty to the Company not to disclose, and agrees that without the prior written consent of the Company, at any time, either during or after the Employee's employment with the Company, the Employee will not communicate, publish or disclose, to any person anywhere or use, any Confidential Information (as hereinafter defined), except as may be necessary or appropriate to conduct the Employee's duties hereunder, provided the Employee is acting in good faith and in the best interest of the Company, or as may be required by law or judicial process. The Employee will at all times hold in confidence and to safeguard any Confidential Information from falling into the hands of any unauthorized person. The Employee will return to the Company all Confidential Information in the Employee's possession or under the Employee's control whenever the Company shall so request, and in any event will promptly return all such Confidential Information if the Employee's relationship with the Company is terminated for any or no reason and will not retain any copies thereof. For purposes hereof, the term "Confidential Information" shall mean any information used by or belonging or relating to the Company or any of its affiliates that is not known generally to the industry in which the Company is or may be engaged and which the Company maintains on a confidential basis, including, without limitation, any and all trade secrets and proprietary information, information relating to the Company's business and services, employee information, customer lists and records, business processes, procedures or standards, know- how, manuals, business strategies, records, financial information, in each case whether or not reduced to writing or stored electronically, as well as any information that the Company advises the Employee should be treated as confidential information. Further, Confidential Information shall not include information which is independently obtained from a third party whose disclosure violates no duty of confidentiality to the Company. |
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| (b) | Intellectual Property. The Employee acknowledges and agrees that all analyses, reports, proposals, software, documentation, machine code and other intellectual property owned by the Company (collectively, the "Company's Intellectual Property") are and shall remain the sole and exclusive property of the Company, or as otherwise may be noted, and that in no event shall the Employee have any ownership interest therein. In that connection, the Employee hereby irrevocably assigns, transfers and conveys to the Company all of his right, title and interest, if any, in and to the Company's Intellectual Property, including any rights the Employee may have of patent, copyright, trade secret or other proprietary rights in the Company's Intellectual Property. The Employee agrees to assist the Company in every proper way to obtain and from time to time enforce patents, copyrights, trade secrets and all other proprietary and intellectual property rights and interest in and to all the Company's Intellectual Property in any and all countries, and to that end the Employee will execute and deliver all documents and other papers and materials for use in applying for, obtaining and enforcing such patents, copyrights, trademarks and other proprietary and intellectual property rights and interests, as the Company may request in writing, together with any assignments thereof to the Company or persons designated by it. The Employee agrees that the Company is appointed as his attorney to execute all such instruments and do all such things for the purpose of assuring to the Company (or its designee) the full benefit of the provisions of this paragraph. |
| (c) | Noninterference with Clients or Employees. The Employee agrees that, during the period of the Employment Period and for a period of 12 months from the date of termination of employment for any reason (the "Restricted Period"), the Employee shall not, on the Employee's own behalf or on behalf of any other person or entity, solicit or in any manner influence or encourage any current or prospective client, customer, employee or other person or entity that has a business relationship with the Company or any subsidiary, to terminate or limit in any way their relationship with the Company, or interfere in any way with such relationship. |
| (d) | Survival. The provisions of this Section 6 shall be applicable and shall survive for the time periods specified herein without regard to the termination of the Employment Period or the expiration of the Agreement Term. |
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| (e) | Enforcement. The Employee acknowledges and agrees that the provisions of this Section 7 are reasonable and necessary for the successful operation of the Company. The Employee further acknowledges that if he breaches any provision of this Section 7, the Company will suffer irreparable injury. It is therefore agreed that the Company shall have the right to enjoin any such breach or threatened breach, without posting any bond, if ordered by a court of competent jurisdiction. The existence of this right to injunctive and other equitable relief shall not limit any other rights or remedies that the Company may have at law or in equity including, without limitation, the right to monetary and compensatory damages. In addition, the Employee further acknowledges that if he breaches any provision of this Section 6 following his termination of employment with the Company, the Employee will forfeit the right to any unpaid severance or other payments due under this Agreement. If any provision of this Section 6 is determined by a court of competent jurisdiction to be unenforceable in the manner set forth herein, the Employee and the Company agree that it is the intention of the parties that such provision should be enforceable to the maximum extent possible under applicable law. If any provisions of this Section 6 are held to be invalid or unenforceable, such invalidation or unenforceability shall not affect the validity or enforceability of any other provision of this Section 6 (or any portion thereof). For purposes of the restrictions of this Section 6, references to the "Company" include reference to its subsidiaries and affiliates. |
| (f) | Injunctive Relief. Employee acknowledges and agrees that Company will suffer irreparable harm in the event Employee fails to comply with any of its obligations set forth herein and that monetary damages alone will be inadequate to compensate Company for such breach. Accordingly, Employee agrees that Company, in addition to any other remedies available to it at law or in equity, will be entitled too temporary, preliminary and permanent injunctive relief to enforce the terms hereof without prejudice to any of Company’s other legal remedies available to it as a result of such violation. The parties agree that the restrictions contained herein including injunctive relief shall survive the termination of this Employee’s employment, for whatever reason. |
7. Survival. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and assigns.
8. Choice of Law and Venue. This Agreement shall be governed by and construed according to the laws of Kentucky. All duties and obligations created hereunder are deemed performable in Boone County, Kentucky, and Boone County shall be the sole and exclusive venue for any proceeding, which arises out of this Agreement.
9. Attorney Fees. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all damages, costs and attorney’s fees incurred by that party in enforcing the terms of this Agreement from the non-prevailing party.
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10. Assignment and Delegation. Employee shall not assign any rights or delegate any duties under this Agreement without the prior written consent of Company. Any such assignment or delegation without Company’s consent shall be void.
11. Waiver. If either party waives a breach of any provision of this Agreement by the other party, such waiver shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor impair either party’s rights with respect to any other breach of this Agreement.
12. Survivability. If any portion of this Agreement shall be determined to be invalid, illegal or unenforceable by any valid Act of Congress or act of any legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court of competent jurisdiction, in a final, non-appealable decision, then both parties shall be relieved of all obligations arising under such provision, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent. If the remainder of this Agreement is not affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law.
13. Headings. The headings in this Agreement are inserted for reference and convenience only, and not to be considered in the construction of the provisions hereof, and shall not in any way limit the scope or modify the substance or context of any section hereof.
14. Amendment. No modification, amendment, or alteration of the terms of this Agreement shall be binding or effective unless the same be in writing, dated subsequent to the date hereof, and duly executed by or on behalf of both of the parties to this Agreement.
15. Notices. Any notice required or permitted to be given by any provision of this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail to the Employee or the Company, as the case may be, to the address of the Employee or of the Company, as the case may be, at the address set forth in the introductory paragraph of this Agreement, or to such other address as either party hereto may from time to time specify to the other party by written notice given as herein provided. Any such notice shall be deemed to be delivered, given and received for all purposes as of the date so delivered, if delivered personally, or as of the date on which the notice was properly deposited in a regularly maintained receptacle for deposit of United States Mail, postage and charges prepaid, if sent by registered or certified mail.
16. Entire Agreement. This Agreement contains the complete agreement concerning the employment relationship between the Employee and the Company, and shall as of the effective date hereof supersede all other agreements between the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day, month and year first above written.
| Employee: | Company: | |||
| HealthWareHouse.Com, Inc | ||||
| /s/ John Pauly | /s/ Mark Scott | |||
| John Pauly | By: | Mark Scott | ||
| Chair, Compensation Committee | ||||
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Exhibit 10.2
SEPARATION & RELEASE AGREEMENT
This Separation and Release Agreement (“Agreement”) is between HealthWarehouse.com Inc., and any affiliate or successor thereto (collectively, the “Company”) and Jeffrey Holtmeier (“Employee”).
WHEREAS, Employee has ceased his employment with the Company effective at the close of business on January 16, 2017 (the “Termination Date”); and
WHEREAS, Employee is currently party to an Employment Agreement between the Company and Employee dated November 4, 2016 (“Employment Agreement”); and
WHEREAS, Employee and the Company (the “Parties”) now desire to enter into this Agreement to set forth terms and conditions related to Employee’s resignation, and certain matters pertaining to the Employment Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
| 1. | Employee will be paid his current salary for the period up to and including the day which is thirty days after the Termination Date, at the rate in effect as of the Termination Date. In addition, the Company will pay to Employee an annual bonus for the 2016 year of Forty-Three Thousand Seven Hundred Fifty Dollars ($43,750). The salary (less appropriate withholding for benefits, taxes and any other required withholdings) will be made in accordance with normal Company payroll timing and practices. The Bonus (less appropriate withholding for benefits, taxes and any other required withholdings) of Forty-Three Thousand Seven Hundred Fifty Dollars ($43,750) will be paid and in 10 equal monthly payments, beginning February 1, 2017. |
| 2. | The Company will reimburse incurred expenses in the amount of Sixty-Six Thousand Seven Hundred Forty-Four Dollars and Seventy-Eight Cents ($66,949.78), upon submission of proper documentation from Employee. Such sum will be paid in 10 equal monthly payments, beginning February 1, 2017. |
| 3. | Effective as of the Termination Date, Employee resigns from the Board of Directors of the Company, and from all officer and director positions of the Company’s subsidiaries. |
| 4. | The Employment Agreement is terminated and of no further force and effect, effective on the Termination Date, except for those provisions of the Employment Agreement which are expressly intended to survive termination (including but not limited to the grant and vesting of any options under the Employment Agreement prior to the Termination Date), which shall continue to be in effect for the time periods specified therein. |
| 5. | The Company shall continue to indemnify, defend and hold harmless Employee against any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and expenses (including reasonable attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) arising out of or relating to any threatened or actual action based in whole or in part on or arising out of or relating in whole or in part to the fact that such person is or was a director or officer of the Company whether pertaining to any matter existing or occurring at or prior to the Termination Date and whether asserted or claimed prior to, or at or after, the Termination Date but only to the extent the Company would have been required to do so as of the Termination Date, in each case to the full extent the Company is permitted under law to indemnify its own directors or officers. |
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| 6. | Employee acknowledges and agrees that he is entitled to no salary, wages, commissions, options, benefits, insurance or other compensation from the Company, except as specifically set forth herein. |
| 7. | Employee will continue to cooperate with the Company, at Company’s expense, in the Company’s advancement of all claims (including litigation) in connection with the settlement of certain Company payables and the issuance of shares of Company stock. |
| 8. | In consideration of his receipt of the consideration described above, Employee hereby fully, finally, completely and generally releases the Company, its affiliates, and their respective subsidiaries, affiliates, officers, directors, employees, owners, members, shareholders, agents and representatives (the “Releasees”), from any and all claims, actions, demands, and/or causes of action, whether known or unknown, of whatever kind or character which transpired prior to the execution of this Agreement, including, without limitation: any claim under State or federal law which provides civil remedies for the enforcement of rights arising out of the employment relationship, including, without limitation, discrimination claims such as claims or causes of action under the Kentucky Civil Rights Act, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et. seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981a; Americans With Disabilities Act, as amended, 42 U.S.C. § 12101 et. seq.; Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et. seq.; Employee Retirement Income Security Act, as amended, 29 U.S.C. § 1000 et. seq.; Family and Medical Leave Act, as amended, 29 U.S.C. § 2601, et. seq.; as well as any and all claims for unpaid or withheld wages, relocation allowances or benefits, other benefits, commissions, stock options, bonuses or profit-sharing, wrongful discharge, breach of contract, breach of fiduciary duty, promissory estoppel, fraud, breach of any implied covenants, assault, battery, negligence, defamation, invasion of privacy, slander, or intentional infliction of emotional distress. Employee also specifically releases any claims for attorney’s fees, costs and expenses incurred in connection with any matter herein released. |
| 9. | Employee represents that there is currently no pending complaint or lawsuit concerning any of the Releasees which Employee has filed with any local, state, or federal agency or court. Employee agrees not to file any claim, complaint, action or cause of action against any of the Releasees, and further agrees to indemnify and save harmless the Releasees against loss, including, without limitation, the cost of defense and legal fees, occurring as a result of any claims, charges, complaints, actions, or causes of action made or brought by Employee in violation of paragraphs 6 and 7 herein. |
| 10. | Nothing in this Agreement shall be construed to affect the rights and responsibilities of the Equal Employment Opportunity Commission (the “Commission”), the National Labor Relations Board (the “NLRB”), or any other federal, state or local agency with similar responsibilities to enforce any laws pertaining to employment discrimination or retaliation, fraud, financial misfeasance, or union activity or participation. Likewise, this waiver will not be used to justify interfering with the protected right of any employee to file a charge or participate in an investigation or proceeding conducted by the Commission, the NLRB or any similar agency. However, Employee waives the right to receive or participate in any payment or benefits arising out of any such proceeding. |
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| 11. | The Parties understand and agree that this Agreement constitutes a valid and enforceable waiver and release agreement, and creates enforceable rights as described herein. Both Parties acknowledge that this Agreement shall not affect any claim or cause of action arising after the date that the Employee executes this Agreement. |
| 12. | The Parties acknowledge that nothing in this Agreement shall be construed as a waiver or release of Employee’s vested rights or legally protected entitlements, if any, in any 401(k) Plan, Insurance Plan or other Health or Welfare Benefit Plan. Also, this Agreement does not limit or preclude, in any way, the Employee’s right to seek unemployment compensation under State law. If Employee elects to seek unemployment compensation, Employee understands and agrees that the decision to award unemployment compensation is made by the applicable State agency, not the Company. |
| 13. | Neither this Agreement itself nor the payment of the above amount shall be deemed or construed at any time for any purpose as an admission by the Company of any liability or responsibility of any kind. |
| 14. | Each Party agrees that it shall not disparage the other Party or its officers, directors, shareholders, or employees. The Company agrees it will include positive comments recognizing Employee's efforts and contributions towards the success of its 4th quarter 2016 and fiscal year 2016 financial results in any press release announcing such results, when those results are issued. |
| 15. | To the extent applicable, it is intended that this Agreement (including all amendments thereto) comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to Employee. This Agreement shall be interpreted and administered in a manner consistent with this intent. Notwithstanding any provision of this Agreement to the contrary, if all or any portion of the payments and/or benefits under this Agreement are determined to be “nonqualified deferred compensation” subject to Section 409A of the Code and the Company determines that Employee is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code and the final Treasury Regulations promulgated thereunder, then such payments and/or benefits (or portion thereof) shall commence no earlier than the first day of the seventh month following the Separation Date (with the first such payment being a lump sum equal to the aggregate payments and/or benefits Employee would have received during such six-month period if no such payment delay had been imposed.) For purposes of this Agreement, “termination of employment” or any related reference to termination of employment shall mean Employee’s “separation from service”, as defined in Section 1.409A-1(h) of the Treasury Regulations, including the default presumptions thereunder. Wherever payments to which this paragraph applies are to be made in installments, each such installment shall be deemed to be a separate payment for purposes of Code Section 409A. |
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| 16. | The Employee acknowledges and represents that he: |
| (a) | has fully read and understood this Agreement; |
| (b) | has accepted the terms of this Agreement and has executed this Agreement voluntarily; |
| (c) | has been advised that his signature on this Agreement shall constitute a waiver and release of the Released Parties from all claims Employee may have as of the date he signs this Agreement regarding claims or rights arising under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621 (“ADEA”), but does not constitute a waiver or release of rights or claims that may arise under the ADEA after the date he signs this Agreement; |
| (d) | has been advised to consult an attorney or other advisor prior to signing this Agreement; |
| (e) | has been provided twenty-one (21) days within which to consider whether he should sign this Agreement and waive and release all claims and rights arising under the ADEA, as well as all other claims released by this Agreement; |
| (f) | understands and agrees that any changes to this Agreement will not re-start the 21 day consideration period; and |
| (g) | has been advised that he shall have seven (7) full days following the execution of this Agreement to revoke this Agreement and that this Agreement shall not become effective or enforceable until the eighth (8th) day after it is signed by Employee (on which date this Agreement will automatically become effective and enforceable unless previously revoked within that seven (7) day period). |
| 17. | This Agreement supersedes any and all prior agreement, whether oral or written, previously made between the parties relating to the subject matter herein and the full understanding of the parties is expressed herein. However, this Agreement will not supersede any prior agreement or promise between Employee and the Company regarding confidentiality, trade secrets, non-competition, non-disclosure or non-solicitation, including but not limited to those set forth in the Employment Agreement, and any such agreement or promise shall remain in full force and effect, except as specifically set forth herein. |
| 18. | This Agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Kentucky. Any lawsuit or other legal proceeding between the parties shall be brought only in the civil district courts of Boone County, Kentucky, or the United States District Court for the Eastern District of Kentucky, Covington Division. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. |
| 19. | The invalidity of any particular provision of this Agreement shall not affect the validity of any other provision. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of subsequent breach by any party. |
| 20. | This Agreement was originally provided to Employee on January 19, 2017. |
(signatures follow)
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| Dated: January 19, 2017 | |||
| HEALTHWAREHOUSE.COM INC. | |||
| By: | /s/ Mark Scott | ||
| Mark Scott, Board Member | |||
I have carefully read and fully understand the provisions of this Agreement. I am signing this Agreement voluntarily and without any other agreements or promises from Company.
| AGREED: | /s/ Jeffrey Holtmeier | January 19, 2017 | |
| Jeffrey Holtmeier | (Date) |
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Exhibit 99.1
HealthWarehouse.com Inc. (OTCQB:HEWA), Americas’ trusted online pharmacy is pleased to announce that Mr. John Pauly has been appointed Chief Operating Officer and Interim President/Chief Executive Officer, effective January 18, 2017. Mr. Pauly will report to the Board of Directors of HealthWarehouse.com. “Mr. Pauly has built a notable career in the pharmaceutical industry, and we are extremely pleased that he has decided to join the Company as we work to position the Company for continued growth in our online-commerce platform ,” said Brian Ross, a member of the Company’s Board of Directors. “This is an exciting time for the Company and for the online pharmaceutical industry, and I’m eager to continue the positive momentum that has been established, as we seize the market opportunity, ” added Mr. Pauly.
Jeff Holtmeier, who agreed to serve as Chairman, President and CEO following the successful proxy contest last year, is leaving the Company and the Board. “Jeff Holtmeier has been instrumental in the establishment of a new Board of Directors and a management team. He has delivered very effective leadership during this important time in the Company’s history. He has been a stabilizing force for the employees and has restored their confidence in the Company and its prospects for value creation. We thank Jeff and wish him well in his new endeavors,” said Mr. Ross. “The last few months have been very momentous and I’m proud to have been part of the efforts to re-point the Company to growth in the online pharmacy space,” added Mr. Holtmeier. “As a shareholder, I’m eager to watch as the new board and management continues its efforts to unlock shareholder value in the Company.”
Mr. Pauly brings extensive pharmaceutical experience to the management of HealthWarehouse.com. Prior to joining the Company, Mr. Pauly was the Chief Operating Officer of Specialty Medical Drugstore, and led commercial operations for both Acton and Merz Pharmaceuticals. Mr. Pauly also spent 12 years at Sepracor, where he was responsible for the strategy and operational aspects of Sepracor’s customer base. Before joining Sepracor, Mr. Pauly has also held similar positions at Richwood Pharmaceuticals (Shire Pharmaceuticals) and Centocor (J&J).
About HealthWarehouse.com, Inc. (OTCQB:HEWA) is a trusted VIPPS accredited online pharmacy based in Florence, Kentucky. The Company is focused on the growing out of pocket prescription market. With a mission to provide affordable healthcare to every American by focusing on technology that is revolutionizing prescription delivery, HealthWarehouse.com has become the largest VIPPS accredited online pharmacy in the United States. HealthWarehouse.com is licensed in all 50 states and only sells drugs that are FDA approved and legal for sale in the United States. Visit HealthWarehouse.com online at http://www.HealthWarehouse.com.