EMPLOYMENT AGREEMENT
Exhibit 10.12
EMPLOYMENT AGREEMENT (the “Agreement”) dated as of on or about July 21, 2008 (the
“Effective Date”), by and between EMDEON BUSINESS SERVICES, LLC, a Delaware corporation
(the “Company”, which shall include its subsidiaries and affiliates), and
XXXXXXX X. XXXXXXX (“Executive”).
WHEREAS, the Company desires to employ Executive as its Executive Vice President,
Secretary and General Counsel and Executive wishes to be employed by the Company;
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein
(including, without limitation, the Company’s employment of Executive and the advantages and
benefits thereby inuring to Executive) and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by each party hereto, the
parties hereby agree as follows:
1. Employment of Executive.
1.1. Employment by the Company. The Company hereby employs Executive
as Executive Vice President, Secretary and General Counsel of the Company and Executive hereby
accepts such employment with the Company as of July 21, 2008 (the “Employment Commencement
Date”). Executive shall report to the Chief Executive Officer of the Company and perform such
duties and services for the Company as may be designated from time to time, by the Chief Executive
Officer and/or Board of Directors (the “Board”) of EBS Master LLC. Executive shall use his best
and most diligent efforts to promote the interests of the Company and shall devote all of his
business time and attention to his employment under this Agreement, except as necessary to
transition his duties and responsibilities from his prior employment in accordance with that
certain Independent Contractor Agreement, dated July 18, 2008, by and between Executives and
Spheris Holding III, Inc. Executive acknowledges that he will be required to travel in connection
with the performance of his duties. Notwithstanding the foregoing, nothing herein shall preclude
Executive from (i) serving, with the prior consent of the Board as a member of the board of
directors or advisory boards( or their equivalents in the case of a non-corporate entity) of
non-competing businesses and charitable organizations, (ii) engaging in charitable activities and
community affairs, and (iii) managing his personal investments and affairs; provided, however,
that the activities set out in clauses (i), (ii) and (iii) above shall be limited so as not to
interfere, individually or in the aggregate, with the performance of his duties and
responsibilities hereunder.
2. Compensation and Benefits.
2.1. Salary. Commencing on the Employment Commencement Date,
Executive shall be paid for his services during the Employment Period (as defined below) a base
salary at the annual rate of $300,000. Any and all increases to Executive’s base salary (as it may
be increased, the “Base Salary”) shall be determined by the Board of Directors (the
“Board”) of EBS Master LLC (or such committee as may be designated by the Board) in its sole
discretion. Such Base Salary shall be payable in equal installments, no less frequently than
monthly, pursuant to the Company’s customary payroll policies in force at the time of payment,
less any required or authorized payroll deductions.
2.2. Bonus. During the Employment Period, Executive shall be eligible to
receive an annual bonus, the target of which is 50% of Base Salary, which amount shall be
determined in the sole discretion of the Board (or such committee as may be designated by the
Board)(the “Annual Bonus”). Such Annual Bonus, if any, shall be payable at such time as executive
officer bonuses are paid generally so long as Executive remains in the employ of the Company on
the payment date. Executive shall be eligible to receive his full Annual Bonus, the amount of
which, if any, shall be determined by the Board in its sole discretion, for the year ending
December 31, 2008.
2.3. Profits Interest. Executive as of the Employment Commencement Date
Executive shall be granted 400,000 “Class B Units” of EBS Executive Incentive Plan LLC
(“Company LLC Agreement”) under the EBS Executive Equity Incentive Plan (“Plan”),
which grant is subject to the terms and conditions as set forth in the Class B Unit Award
Agreement (“Award Agreement”), the Plan, the Company LLC Agreement and the LLC Agreement
for EBS Master LLC (all such documents governing Executive’s Class B Units, to the extent
applicable, being referred to herein as the “Plan Documents.”).
2.4. Benefits. During the Employment Period, Executive shall be entitled to
participate, on the same basis and at the same level as other similarly situated senior executives
of the Company, in any group insurance, hospitalization, medical, health and accident, disability,
fringe benefit and tax-qualified retirement plans or programs of the Company now existing or
hereafter established to the extent that he is eligible under the general provisions thereof.
Executive shall be entitled to vacation time consistent with the Company’s policies. The date or
dates of such vacations shall be selected by Executive having reasonable regard to the business
needs of the Company.
2.5. Expenses. Pursuant to the Company’s customary policies in force at the
time of payment, Executive shall be promptly reimbursed, against presentation of vouchers or
receipts, for all authorized expenses properly and reasonably incurred by him on behalf of the
Company in the performance of his duties hereunder. Expenses covered by this provision include but
shall not be limited to professional fees, subscriptions, fees and other reasonable expenses
associated with Executive’s law license, continuing education requirements and professional
memberships.
3. Employment Period. Employee’s employment under this Agreement shall commence as of
the Employment Commencement Date, and this Agreement shall terminate as set forth in Section 4
hereof (the “Employment Period”). Notwithstanding such Employment Period, Employee
acknowledges that his employment is for an unspecified duration that constitutes at-will
employment, and that either the Company or Employee can terminate such employment at any time, for
any reason, with or without notice, subject to the consequences set forth herein.
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4. Termination.
4.1. Termination by the Company for Cause. (a) Executive’s employment with the
Company may be terminated at any time by the Company for Cause. Upon such a termination, the
Company shall have no obligation to Executive other than the payment of Executive’s earned and
unpaid compensation, vested and accrued benefits under the Company’s ERISA-based plans and accrued
but unreimbursed expenses pursuant to Section 2.5 (collectively, the “Accrued
Obligations”), to the effective date of such termination.
(b) For purposes of this Agreement, the term “Cause” shall mean any of the following:
(i) Executive’s failure to comply with the employment policies of the
Company or any Affiliate, which failure is not cured to the reasonable satisfaction
of the Board within fifteen days of written notice to Executive of such failure to
so comply;
(ii) Executive’s commission of any material act of dishonesty or breach of
trust in connection with performance of employment-related duties as determined by
the Board, in its sole discretion; and
(iii) Executive’s conviction of, or pleading guilty or nolo contendere to, any
felony or crime of moral turpitude.
4.2. Permanent Disability; Death. If during the term of this Agreement, (i)
Executive shall become ill, mentally or physically disabled, or otherwise incapacitated so as to
be unable regularly to perform the duties of his position for a period in excess of 90 consecutive
days or more than 180 days in any consecutive 12 month period, or (ii) a qualified independent
physician determines that Executive is mentally or physically disabled so as to be unable to
regularly perform the duties of his position and such condition is expected to be of a permanent
duration (a “Permanent Disability”), then the Company shall have the right to terminate
Executive’s employment with the Company upon written notice to Executive. In the event the Company
terminates Executive’s employment as a result of his Permanent Disability or death, Executive or
Executive’s estate shall be entitled to the benefits that he would have been entitled to receive
if Executive’s employment had been terminated by the Company without Cause pursuant to Section 4.4
(subject to the provisos and conditions set forth therein); provided, however, that the
Company shall have no other obligation to Executive or Executive’s estate pursuant to this
Agreement in the event that Executive’s employment with the Company is terminated by the Company
pursuant to this Section 4.2.
4.3. Resignation by the Executive. Executive may voluntarily resign from his
employment with the Company, provided that Executive shall provide the Company with thirty
(30) days advance written notice (which notice requirement may be waived, in whole or in part, by
the Company in its sole discretion) of his intent to resign. If Executive so terminates his
employment with the Company, other than in accordance with Section 4.5, the Company shall have no
obligation other than the payment of the Accrued Obligations to the effective date of such
termination.
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4.4. Termination by the Company Without Cause. Executive’s employment
with the Company may be terminated at any time by the Company without Cause. If the Company
terminates Executive’s employment without Cause, the Company shall have the following
obligations to Executive (but excluding any other obligation to Executive pursuant to this
Agreement):
(a) payment of the Accrued Obligations;
(b) the continuation of his Base Salary, as severance, for a period of eighteen months
(“Severance Period”), provided that the Base Salary for the first six months of
the Severance Period shall be paid to Executive in a lump sum at the end of such six-month period
in accordance with the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended (“Section 409A”); provided further that such delay in payment will not
apply to the extent that guidance issued under Section 409A allows payment to be made when
otherwise due without subjecting Executive to additional taxes under Section 409A;
(c) if Executive timely elects to continue his health insurance pursuant to
COBRA, the Company shall pay that portion of the premium that it pays for active employees with
similar coverage during the Severance Period or, if earlier, until such time as Executive is
eligible for comparable coverage with a subsequent employer (and Executive shall promptly notify
the Company if he becomes eligible for comparable coverage); provided that Executive shall
pay the amount of the employer portion of the applicable premiums for the first six months of the
Severance Period, which amount will be reimbursed to him in a lump sum at the end of such
six-month period, provided further that Executive shall not be required to pay the
employer portion of the premiums for the first six months of the Severance Period to the extent
that guidance under Section 409A allows such premiums to be paid by the Company without subjecting
Executive to additional taxes under Section 409A; and
(d) Executive’s Profits Interest shall be treated as set forth in the Plan
Documents;
provided, however, that the continuation of such salary and benefits and the continued
vesting of the Profits Interest shall cease on the occurrence of any circumstance or event that
would constitute Cause under Section 4.1 of this Agreement (including any breach of the
restrictive covenants contained in Section 5 below or any similar restrictive covenants to which
Executive is bound).
4.5. Termination by Executive for Good Reason. Executive’s employment
with the Company may be terminated by Executive for Good Reason on thirty (30) days written notice
to the Company, which notice shall detail the specific basis for such termination. The Company
shall be given the opportunity to cure the basis for such termination within such thirty (30) day
period. For purpose of this Section 4.5, the term “Good Reason” means any of the
following:
(a) a reduction in Executive’s Base Salary or the target Annual Bonus amount in Section 2.2.
For purposes of clarity, the failure to pay an amount less than the target Annual Bonus amount for
any particular year as a result of the Company’s failure to achieve its company
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performance objectives shall not be deemed a reduction in the Executive’s target Annual Bonus
amount for purposes of this Section 4.5.
(b) Executive does not report to the Chief Executive Officer of the Company;
or a material diminution of Executive’s title, duties, responsibilities or reporting
relationships; or
(c) The relocation of more than 50 miles of Executive’s principal place of
employment.
If Executive terminates his employment pursuant to this Section 4.5, Executive shall be entitled
to receive the same benefits as if his employment had been terminated by the Company without
Cause under Section 4.4 (subject to the provisions and conditions set forth herein).
4.6. Liquidated Damages. Executive acknowledges that the payments and
benefits under this Section 4 resulting from a termination of Executive’s employment with the
Company are in lieu of any and all claims that Executive may have against the Company (other
than benefits under the Company’s employee benefit plans that by their terms survive termination
of employment and benefits under the COBRA, and rights to indemnification under certain
indemnification arrangements for officers of the Company), and represent liquidated damages (and
not a penalty). Company acknowledges that Executive shall not be required to mitigate the amount
of any payment provided for pursuant to this Agreement by seeking other employment or otherwise
and the amount of any payment provided for pursuant to this Agreement shall not be reduced by
any compensation earned as a result of Executive’s other employment or otherwise. The Company
may require that Executive execute and not revoke a release of claims in a form provided by the
Company as a condition to Executive’s receipt of
such payments and benefits.
5. Restrictive Covenants.
5.1. Confidentiality. Executive understands and acknowledges that, during the
course of his employment with the Company and as a result of his having executed this Agreement,
Executive shall be and has been granted access to valuable information relating to the Company’s
business that provides the Company with a competitive advantage (or that could be used to the
Company’s disadvantage by a Competitive Business (as defined herein), which is not generally known
by, nor easily learned or determined by, persons outside the Company (collectively “Trade
Secret and Proprietary Information”). The term Trade Secret and Proprietary Information shall
include, but shall not be limited to the Company’s: (a) specifications, manuals, software in
various stages of development; (b) customer and prospect lists, and details of agreements and
communications with customers and prospects; (c) sales plans and projections, product pricing
information, acquisition, expansion, marketing, financial and other business information and
existing and future products and business plans; (d) sales proposals, demonstrations systems, sales
material; (e) research and development; (f) computer programs; (g) sources of supply; (h) identity
of specialized consultants and contractors and Trade Secret and Proprietary Information developed
by them for the Company; (i) purchasing, operating and other cost data; (j) special customer needs,
cost and pricing data; and (k) employee information (including, but not limited to, personnel,
payroll, compensation and benefit data and plans), including all such information recorded in
manuals, memoranda, projections, reports,
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minutes, plans, drawings, sketches, designs, formula books, data, specifications, software
programs and records, whether or not legended or otherwise identified as Trade Secret and
Proprietary Information, as well as such information that is the subject of meetings and
discussions and not recorded. Trade Secret and Proprietary Information shall not include such
information that Executive can demonstrate: (x) is generally available to the public (other than
as a result of a disclosure by Executive; (y) was disclosed to Executive by a third party under no
obligation to keep such information confidential; or (z) was known by Executive prior to, and not
as a result of, Executive’s employment or anticipated employment with the Company.
Executive agrees at all times, both during and after his employment with the Company, to hold
all of the Trade Secret and Proprietary Information in a fiduciary capacity for the benefit of the
Company and to safeguard all such Trade Secret and Proprietary Information. Executive also agrees
that he will not directly or indirectly disclose or use any such Trade Secret and Proprietary
Information to any third person or entity outside the Company, except as may be necessary in the
good faith performance of his duties for the Company. Executive further agrees that, in addition
to enforcing this restriction, the Company may have other rights and remedies under the common law
or applicable statutory laws relating to the protection of trade secrets. Notwithstanding anything
in this Agreement to the contrary, Executive understands that he may disclose the Trade Secret and
Proprietary Information to the extent required by applicable laws or governmental regulations or
judicial or regulatory process, provided that Executive gives the Company prompt notice of
any and all such requests for disclosure so that it has ample opportunity to take all necessary or
desired action, to avoid disclosure.
5.2. Company Property. Executive acknowledges that: (a) all Trade Secret and
Proprietary Information; (b) computers, and computer-related hardware and software, cell phones,
beepers and any other equipment provided to him by the Company; and (c) all documents Executive
creates or receives in connection with his employment with the Company, belongs to the Company,
and not to him personally (collectively, “Company Property”). Such documents include,
without limitation and by way of non-exhaustive example only: papers, files, memoranda, notes,
correspondence, lists, e-mails, reports, records, data, research, proposals, specifications,
models, flow charts, schematics, tapes, printouts, designs, graphics, drawings, photographs,
abstracts, summaries, charts, graphs, notebooks, investor lists, customer/client lists, and all
other compilations of information, regardless of how such information may be recorded and whether
in printed form or on a computer or magnetic disk or in any other medium. Executive agrees to
return all Company Property (including all copies) to the Company immediately upon any termination
of his employment, and further agrees that, during and after his employment with the Company, he
will not, under any circumstances, without the Company’s specific written authorization in each
instance, directly or indirectly disclose Company Property or any information contained in Company
Property to anyone outside the Company, or otherwise use Company Property for any purpose other
than the advancement of the Company’s interests.
5.3. Unfair Competition. Executive acknowledges that the Company has a
compelling business interest in preventing unfair competition stemming from the intentional or
inadvertent use or disclosure of the Trade Secret and Proprietary Information and Company
Property.
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5.4. Investors, Other Third-Parties, and Goodwill. Executive acknowledges
that all third-parties he services or proposes to service while employed by the Company are doing
business with the Company and not him personally, and that, in the course of dealing with such
third-parties, the Company establishes goodwill with respect to each such third-party that is
created and maintained at the Company’s expense (“Third-Party Goodwill”). Executive also
acknowledges that, by virtue of his employment with the Company, he has gained or will gain
knowledge of the business needs of, and other information concerning, third-parties, and that he
would inevitably have to draw on such information were he to solicit or service any of the third
parties on his own behalf or on behalf of a Competitive Business.
5.5. Intellectual Property and Inventions. Executive acknowledges that all
developments, including, without limitation, the creation of new products, conferences,
training/seminars, publications, programs, methods of organizing information, inventions,
discoveries, concepts, ideas, improvements, patents, trademarks, trade names, copyrights, trade
secrets, designs, works, reports, computer software, flow charts, diagrams, procedures, data,
documentation, and writings and applications thereof relating to the past, present, or future
business of the Company that Executive, alone or jointly with others, may have discovered,
conceived, created, made, developed, reduced to practice, or acquired during his employment with
the Company (collectively, “Developments”) are works made for hire and shall remain the
sole and exclusive property of the Company, and Executive hereby assigns to the Company all of his
rights, titles, and interest in and to all such Developments, if any. Executive agrees to disclose
to the Company promptly and fully all future Developments and, at any time upon request and at the
expense of the Company, to execute, acknowledge, and deliver to the Company all instruments that
the Company shall prepare, to give evidence, and to take any and all other actions that are
necessary or desirable in the reasonable opinion of the Company to enable the Company to file and
prosecute applications for, and to acquire, maintain, and enforce, all letters patent, trademark
registrations, or copyrights covering the Developments in all countries in which the same are
deemed necessary by the Company. All data, memoranda, notes, lists, drawings, records, files,
investor and client/customer lists, supplier lists, and other documentation (and all copies
thereof) made or compiled by Executive or made available to him concerning the Developments or
otherwise concerning the past, present, or planned business of the Company are the property of the
Company, and will be delivered to the Company immediately upon the termination of his employment
with the Company.
5.6. Covenant Not to Compete with the Company.
(a) Executive acknowledges that the business of the Company is national in
scope, that its products and services are marketed throughout the entire United States, that the
Company competes in nearly all of its business activities with other individuals or entities that
are, or could be, located in nearly any part of the United States and that the nature of
Executive’s services, position, and expertise are such that he is capable of competing with the
Company from nearly any location in the United States.
(b) Accordingly, in order to protect the Trade Secret and Proprietary
Information and Third-Party Goodwill, Executive acknowledges and agrees that during the term of
his employment with the Company and for a period of eighteen months after the date his employment
with the Company is terminated for any reason (the “Restricted Period”), he will
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not, without the Company’s express written permission, directly or indirectly (including through
the Internet), own, control, manage, operate, participate in, be employed by, or act for or on
behalf of, any Competitive Business located anywhere within the geographic boundaries of the
United States (or outside of the United States to the extent that such Competitive Business
services persons located within the United States).
(c) For purposes of this Agreement “Competitive Business” shall mean: (i)
any enterprise, including any payor (including, without limitation, insurance companies, HMO’s,
pharmacy benefits management companies, and/or self-insured employer groups) engaged in
establishing electronic linkages between individual healthcare providers, patients, and/or payors
for the purpose of facilitating or conducting financial, administrative and clinical
communication and/or transactions; (ii) any enterprise engaged in the printing or electronic
communication of patient statements or other invoices for services rendered; and (iii) any
enterprise engaged in any other type of business in which the Company is also engaged, or plans
to be engaged, so long as Executive is directly involved in such business or planned business on
behalf of the Company.
5.7. Non-Solicitation of Employees, Customers. In order to protect the Trade
Secret and Proprietary Information and Third-Party Goodwill, during the Restricted Period,
Executive will not, without the Company’s express written permission, directly or indirectly:
(a) solicit, induce, hire, engage, or attempt to hire or engage any employee or
independent contractor of the Company, or in any other way interfere with the Company’s
employment or contractual relations with any of its employees or independent contractors, nor
will Executive solicit, induce, hire, engage or attempt to hire or engage any individual who was
an employee of the Company at any time during the one (1) year period immediately prior to the
termination of Executive’s employment with the Company;
(b) contact, call upon or solicit, on behalf of a Competitive Business, any
existing or prospective client, or customer of the Company who Executive serviced, or otherwise
developed a relationship with, as a result of his employment with the Company, nor will Executive
attempt to divert or take away from the Company the business of any such client or customer.
5.8. Remedies. Executive acknowledges and agrees that the restrictions
contained in this Section 5 are reasonably necessary to protect the legitimate business interests
of the Company, and that any violation of any of the restrictions will result in immediate and
irreparable injury to the Company for which monetary damages will not be an adequate remedy.
Executive further acknowledges and agrees that if any such restriction is violated, the Company
will be entitled to immediate relief enjoining such violation (including, without limitation,
temporary and permanent injunctions, a decree for specific performance, and an equitable
accounting of earnings, profits, and other benefits arising from such violation) in any court
having jurisdiction over such claim, without the necessity of showing any actual damage or posting
any bond or furnishing any other security, and that the specific enforcement of the provisions of
this Section 5 will not diminish Executive’s ability to earn a livelihood or create or impose upon
Executive any undue hardship. Executive also agrees that any request for such relief by the
Company shall be in addition to, and without prejudice to, any claim for monetary damages that the
Company may elect to assert.
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5.9. Extension of Restricted Period. The Restricted Period shall be extended
by the length of any period during which Executive is in breach of the tenus of this Section 5.
5.10. Nondisparagement. Executive agrees that at no time during his employment by
the Company or thereafter, shall he make, or cause or assist any other person to make, any
statement or other communication to any third party which impugns or attacks, or is otherwise
critical of, the reputation, business or character of the Company or any of its directors,
officers or employees.
6. Notices. Any notice or communication given by either party hereto to the
other shall be in writing and personally delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the following addresses:
(a) | if to the Company: Emdeon Business Services, LLC 00 Xxxxxxx Xxxx. Xxxxxxxxx, XX 00000 Attention: Chief Executive Officer |
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(b) | if to Executive: at the address specified in the personnel files of the Company. |
Any notice shall be deemed given when actually delivered to such address, or two days after such
notice has been mailed or sent by Federal Express, whichever comes earliest. Any person entitled
to receive notice may designate in writing, by notice to the other, such other address to which
notices to such person shall thereafter be sent.
7. Miscellaneous.
7.1. Representations and Covenants. In order to induce the Company to enter
into this Agreement, Executive makes the following representations and covenants to the
Company and acknowledges that the Company is relying upon such representations and
covenants:
(a) No agreements or obligations exist to which Executive is a party or
otherwise bound, in writing or otherwise, that in any way interfere with, impede or preclude him
from fulfilling all of the terms and conditions of this Agreement.
(b) Executive, during his employment, shall use his best efforts to disclose to
the Board and the Chief Executive Officer of the Company in writing or by other effective method
any bona fide information known by him and not known to the Board and/or the Chief Executive
Officer of the Company that he reasonably believes would have any material negative impact on the
Company.
7.2. Entire Agreement. This Agreement and the Plan Documents, the
applicable tenus of which are hereby incorporated herein by reference) contain the entire
understanding of the parties in respect of their subject matter and supersede upon their
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effectiveness all other prior agreements and understandings between the parties with respect
to such subject matter.
7.3. Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by the party against
whom enforcement is sought. No failure to exercise, and no delay in exercising, any right, power
or privilege hereunder shall operate as a waiver thereof. No waiver of any breach of any
provision of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach
of the same or any other provision.
7.4. Binding Effect; Assignment. The rights and obligations of this Agreement
shall bind and inure to the benefit of any successor of the Company by reorganization, merger or
consolidation, or any assignee of all or substantially all of the Company’s business and
properties. The Company may assign its rights and obligations under this Agreement to any of its
subsidiaries or affiliates without the consent of Executive. The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform it if no such
purchase, succession or assignment had taken place. Executive’s rights or obligations under this
Agreement may not be assigned by Executive, except that the rights specified in Section 4.2 shall
pass upon Executive’s death to Executive’s executor or administrator.
7.5. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this Agreement.
7.6. Governing Law; Interpretation. This Agreement shall be construed in
accordance with and governed for all purposes by the laws and public policy (other than conflict
of laws principles) of the State of Tennessee applicable to contracts executed and to be wholly
performed within such State.
7.7. Further Assurances. Each of the parties agrees to execute, acknowledge,
deliver and perform, and cause to be executed, acknowledged, delivered and performed, at any
time and from time to time, as the case may be, all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances as may be reasonably necessary to
carry out the provisions or intent of this Agreement.
7.8. Severability. The parties have carefully reviewed the provisions of this
Agreement and agree that they are fair and equitable. However, in light of the possibility of
differing interpretations of law and changes in circumstances, the parties agree that if anyone or
more of the provisions of this Agreement shall be determined by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall, to
the extent permitted by law, remain in full force and effect and shall in no way be affected,
impaired or invalidated. Moreover, if any of the provisions contained in this Agreement is
determined by a court of competent jurisdiction to be excessively broad as to duration, activity,
geographic application or subject, it shall be construed, by limiting or reducing it to the extent
legally permitted, so as to be enforceable to the extent compatible with then applicable law.
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7.9. Withholding Taxes. All payments hereunder shall be subject to any and
all applicable federal, state, local and foreign withholding taxes.
7.10. Section 409A. Any payments required to be paid to Executive pursuant to this
Agreement during the first six months following the termination of Executive’s employment shall be
paid to Executive in a lump sum at the end of such six-month period in accordance with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), provided that such delay in payments will not apply to the
extent that guidance issued under Section 409A allow payments to be made when otherwise due
without subjecting the Executive to additional taxes under Section 409A.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
EMDEON BUSINESS SERVICES, LLC | ||||||
By: | /s/ Xxxxxx Xxxxxxx | |||||
Title: CEO | ||||||
EXECUTIVE | ||||||
/s/ Xxxxxxx X. Xxxxxxx | ||||||
Xxxxxxx X. Xxxxxxx |
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