409A AMENDMENT TO EMPLOYMENT AGREEMENT OF STEPHEN N. KAHANE
EXHIBIT 10.1
409A AMENDMENT TO
EMPLOYMENT AGREEMENT OF XXXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT OF XXXXXXX X. XXXXXX
WHEREAS, AMICAS, Inc. f/k/a VitalWorks, Inc. (the “Company”) and Xxxxxxx X. Xxxxxx
(“Executive”) entered into an employment agreement as of January 1, 2004 which was amended by
agreement dated July 26, 2004 and further amended by agreement dated April 26, 2005 (collectively
the “Agreement”);
Whereas, the Company and Executive desire to amend the Agreement to comply with Internal
Revenue Code Section 409A; and
Whereas, all capitalized terms not otherwise defined herein shall have the meaning ascribed to
them in the Agreement.
NOW THEREFORE, the Agreement is hereby amended as follows.
| 1. | The first two sentences of Section 3B is amended in its entirety as follows: | ||
| “In the event of Change in Control (as hereinafter defined) of Company, and if, as of the date within twelve (12) months after the Change in Control either Company or Executive elects to terminate the employment of the Executive, the terminating party shall give the other party thirty (30) days prior written notice of such termination and thereafter the Company shall pay to the Executive in one lump sum payment an amount equal to twenty-four (24) months of the Executive’s then current Base Salary in exchange for the Executive’s execution and non-revocation of the Release (as hereinafter defined). The Executive acknowledges that he shall not have any right to receive any additional financial compensation other than the lump sum payment referenced in the previous sentence and the COBRA payments described herein.” | |||
| 2. | Section 3C(c)(w) of the Agreement is amended in its entirety as follows: | ||
| “(w) Company shall pay to the Executive, in one lump sum payment, an amount equal to the Executive’s then current Base Salary for the remainder of the Term plus eighteen (18) months of Executive’s then current Base Salary.” | |||
| 3. | Section 3D is amended by adding the following sentence at the end thereof: | ||
| “To the extent a severance payment under Section 3C would be exempt from Section 409A of the Code if the definition of Good Reason complies with Section 409A of the Code, the definition of Good Reason will be interpreted to comply with the definition of good reason under Section 409A of the Code and Treas. Reg. § 1.409A-1(n)(2).” |
| 4. | The following new Section 11 shall be added to the Agreement: |
“Section 11 Compliance with Section 409A of the Code
A. Notwithstanding any other provisions set forth in this Agreement, no option
may be extended to a date later than the earlier of: 1) the latest date upon which
the option could have expired by its original terms under any circumstances or 2) the
tenth anniversary of the original grant of the option or such other time period
permitted under Treas. Reg. Section 1.409A-1(b)(5)(v)(C).
B. Notwithstanding any other provision of this Agreement to the contrary, if any
amount (including imputed income) to be paid to Executive pursuant to this Agreement
as a result of Executive’s termination of employment is “deferred compensation”
subject to Section 409A of the Internal Revenue Code of 1986, as amended and any
successor statute, regulation and guidance thereto (“Section 409A of the Code”), and
if the Executive is a “Specified Employee” (as defined under Section 409A of the
Code) as of the date of Executive’s termination of employment hereunder, then, to the
extent necessary to avoid the imposition of excise taxes or other penalties under
Section 409A of the Code, the payment of benefits, if any, scheduled to be paid by
Company to Executive hereunder during the first 6-month period following the date of
a termination of employment hereunder shall not be paid until the date which is the
first business day after six (6) months have elapsed since the Executive’s
termination of employment for any reason other than death. Any deferred compensation
payments delayed in accordance with the terms of this Section 11B shall be paid in a
lump sum after 6-months have elapsed since the Executive’s termination of employment.
Any other payments will be made according to the schedule provided for herein.
C. If any of the benefits set forth in this Agreement are deferred compensation
under Section 409A of the Code, any termination of employment triggering payment of
such benefits must constitute a “separation from service” under Section 409A of the
Code before distribution of such benefits can commence. For purposes of
clarification, this paragraph shall not cause any forfeiture of benefits on the part
of the Executive, but shall only act as a delay until such time as a “separation from
service” occurs.
D. It is intended that each installment of the payments and benefits provided
under this Agreement shall be treated as a separate “payment” for purposes of Section
409A of the Code. Neither the Company nor Executive shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by Section 409A of the Code.
E. Any reimbursements or direct payment of Executive’s expenses subject to
Section 409A of the Code shall be made no later than the end of the calendar year
following the calendar year in which such expense is incurred by the Executive. Any
reimbursement or right to direct payment of Executive’s expense in one calendar year
shall not affect the amount that may be reimbursed or paid for in any other calendar
year and a reimbursement or payment of Executive’s expense (or right thereto) may not
be exchanged or liquidated for another benefit or payment.
F. Notwithstanding any other provision of this Agreement to the contrary, the
Agreement shall be interpreted and at all times administered in a manner that avoids
the
inclusion of compensation in income under Section 409A(a)(1) of the Code. Any
provision inconsistent with Section 409A of the Code will be read out of the
Agreement. For purposes of clarification, this Section 11 shall be a rule of
construction and interpretation and nothing in this Section 11 shall cause a
forfeiture of benefits on the part of the Executive.”
5. Except as specifically modified herein, the terms of the Agreement, and all terms and
conditions of your employment with Company shall remain in full force and effect.
IN WITNESS WHEROF, each of the parties has caused this 409A Amendment to be executed as of
December 31, 2008.
Executive:
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Company: | |||||
/s/ Xxxxxxx X. Xxxxxx, MD
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/s/ Xxxx. X. Xxxxxxx | |||||
