1
Exhibit (d)(9)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July 19, 2001, by and
between Sunshine Acquisition Corporation, a Pennsylvania corporation (the
"Company"), and Xxxxxx X. Xxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by Sunquest
Information Systems, Inc., a Pennsylvania Corporation ("Sunquest");
WHEREAS, pursuant to the Agreement for Tender Offer and
Merger, dated as of June 24, 2001, by and among Misys plc, a public limited
liability company incorporated under the laws of England ("Parent"), Kirsty,
Inc., a Delaware corporation and an indirect wholly owned subsidiary of Parent
("U.S. Parent"), Sunquest, and the Company (the "Acquisition Agreement"), the
Company shall engage in a tender offer for all of the outstanding shares of
Sunquest's common stock (the "Tender Offer") and shall subsequently become
merged with and into Sunquest, with Sunquest as the surviving corporation (the
"Merger");
WHEREAS, Parent desires to secure Executive's services on
behalf of the Company from and after the consummation of the Merger (the
"Effective Time") and to enter into this agreement setting forth the terms and
conditions of Executive's employment with the Company (the "Agreement");
WHEREAS, Executive desires to accept such employment on the
terms and conditions set forth in this Agreement;
WHEREAS, some of the terms and conditions set forth in this
Agreement have been summarized and/or further clarified in the letter, dated
July 19, 2001, received by Executive from the Chief Executive Officer of the
Parent's Healthcare Division (the "Cover Letter"); and
WHEREAS, during the course of his employment with the Company,
Executive has and will obtain confidential information concerning the business
and operations of Parent, the Company and their respective subsidiaries that
could be used to compete unfairly with Parent, the Company and/or their
respective subsidiaries and could be of great value to its and their
competitors.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the Company and Executive hereby agree as follows:
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1. Employment.
a. Agreement to Continue Employment. Upon the terms and
subject to the conditions of this Agreement and the Cover Letter, and subject to
the occurrence of the Effective Time, the Company hereby agrees to continue to
employ Executive and Executive hereby accepts such continued employment with the
Company.
b. Term of Employment. The Company shall employ Executive
pursuant to the terms of this Agreement for the eighteen-month period commencing
at the Effective Time and ending on the eighteen month anniversary thereof (the
"Initial Term"), subject to the early termination provisions of Paragraph 6(a).
The term will be extended for successive periods of three months each, unless
Executive or the Company provides a notice of non-renewal to the other party at
least 30 days prior to the expiration of the Initial Term or any renewal term.
The period during which Executive is employed pursuant to this Agreement shall
be referred to as the "Employment Period".
2. Position and Duties.
During the Employment Period, Executive shall serve as Sr.
Vice President of Balanced View Consulting at the Company and in such position
or positions with the Company and its subsidiaries as the Chief Executive
Officer of the Company (the "CEO") shall from time to time reasonably specify,
subject to the approval of the Board of Directors of Parent (the "Parent
Board"). During the Employment Period, Executive shall have the duties,
responsibilities and obligations customarily assigned to individuals serving in
the position or positions in which Executive serves hereunder. Executive shall
devote his full business time to the services required of him hereunder except
for vacation time and reasonable periods of absence due to sickness, personal
injury or other disability, and shall use his best efforts, judgment, skill and
energy to perform such services in a manner consonant with the duties of his
positions and to improve and advance the business and interests of the Company
and its subsidiaries.
3. Compensation.
a. Base Salary. During the Employment Period, the Company
shall pay Executive a base salary at the annual rate set forth in the Cover
Letter. The Board of Directors of the Company (the "Company Board") shall review
Executive's base salary on each May 31 during the Employment Period, and may,
subject to the approval of the Parent Board (which approval may be withheld in
the discretion of the Parent Board), adjust such base salary upwards, but not
downwards, in light of the base salaries then paid to other Executives of the
Company and the performance of Executive. Executive's annual base salary payable
hereunder is referred to herein as "Base Salary". The Company shall pay
Executive his Base Salary in accordance with the Company's regular payroll
practices as in effect from time to time.
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b. Incentive Compensation. During the Employment Period,
Executive may be eligible to receive an annual bonus under the Company's annual
bonus plan, based on performance criteria as determined by the CEO and approved
by the Parent Board. Executive's annual bonus (if any) for the fiscal year 2000
and the abbreviated fiscal year ending May 31, 2001 shall be determined in
accordance with the Cover Letter. Additionally, Executive may be entitled to
participate in the Company's other existing and future annual and long term
incentive compensation programs as in effect from time to time at a level
commensurate with his position and duties with the Company and consistent with
the Company's then current policies and practices.
4. Options. As soon as practicable after the Effective Time,
Executive shall be granted an option (the "Option") to purchase Misys common
stock pursuant to the Misys Executive Share Options Plan, as amended. The Option
granted pursuant to this Paragraph 4 shall vest in three tranches on each of the
first, second and third anniversaries of the grant date; provided that a tranche
of the Option shall vest only if Executive is in the employ of the Company on
the applicable anniversary of the grant date. Executive acknowledges that,
notwithstanding anything in this Agreement or Cover Letter to the contrary, the
Option shall terminate and be cancelled if it is determined that Executive had
actual or constructive knowledge on June 25, 2001 (the date that the Tender
Offer was announced) of any fact or circumstance that would have given rise to a
breach of any of the representations or warranties contained in the Acquisition
Agreement.
5. Benefits, Perquisites and Expenses.
a. Benefits. During the Employment Period, Executive shall
participate in each pension and welfare benefit plan sponsored or maintained by
the Company to the extent Executive is eligible to participate in any such plan
under the generally applicable provisions thereof, including, without
limitation, each pension, profit sharing, retirement, deferred compensation or
savings, group life, medical, accident or disability insurance or similar plan
or program of the Company. Nothing herein shall limit the right of the Company
to amend or terminate any such plan in its sole discretion.
b. Perquisites. During the Employment Period, Executive shall
be entitled to sick leave and paid vacation in accordance with, and subject to,
in all respects the generally applicable provisions of the Company's vacation
and sick leave policies.
c. Business Expenses. During the Employment Period, the
Company shall pay or reimburse Executive for all reasonable expenses incurred or
paid by Executive in the performance of Executive's duties hereunder, upon
presentation of expense statements or vouchers and such other information as the
Company may require and in accordance with the generally applicable policies and
procedures of the Company.
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6. Termination of Employment.
a. Early Termination of the Employment Period. Notwithstanding
Paragraph 1(b), the Employment Period shall end upon the earliest to occur of
(i) the date of Executive's death, (ii) 30 days following delivery by the
Company of written notice to Executive of a Termination due to Disability, (iii)
immediately upon delivery by the Company of written notice to Executive of a
Termination for Cause, (iv) three months following the date of delivery by the
Company of written notice to Executive of a Termination Without Cause, provided
that, subject to the continued payment to Executive of installments of his Base
Salary for the period ending three months following the date the Company
delivers such notice of termination to Executive, the Company may elect to
direct Executive to refrain from reporting to employment as of any earlier date
specified in such notice, (v) the date specified in any written notice delivered
by Executive to the Company of a Termination for Good Reason, which date shall
be at least 30 days after the delivery of such notice, or (vi) three months
following the date of delivery by Executive of written notice to the Company of
the Executive's resignation from employment, other than a Termination for Good
Reason.
b. Payments Upon Any Terminations. In the event of the
termination of Executive's employment pursuant to Paragraph 6, the Company shall
pay to Executive, within 30 days of the Termination Date, any Base Salary
earned, but unpaid, for services rendered to the Company on or prior to such
date (other than Base Salary deferred pursuant to Executive's election). In
addition, Executive shall be entitled to receive all vested benefits accrued and
payable to Executive under the terms of or in accordance with any plan, policy
or program of the Company or its subsidiaries (other than any severance plan,
policy or program) that are payable at or subsequent to the date of his
termination without regard to the performance by Executive of further services
or the resolution of a contingency. Such vested accrued benefits shall be
payable in accordance with the terms of the plan, policy or program under which
such benefits have accrued, except as otherwise expressly modified by this
Agreement.
c. Additional Benefits Payable Upon Certain Terminations.
(I) Payments.
(A) In the event of a termination of
Executive's employment pursuant to
Paragraph 6(a) due to a Termination
Without Cause or a Termination for
Good Reason, (i) during the six
month period beginning on the
Termination Date (the "Severance
Period"), the Company shall
continue to (x) pay to Executive
installments of his Base Salary (at
the annual rate in effect
immediately prior to the
Termination Date), in accordance
with the Company's regular payroll
practices as then in effect and
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(y) provide Executive with medical
benefits, and (ii) with respect to
any incentive compensation award
granted to Executive pursuant to
Paragraph 3(b), Executive shall be
entitled to receive any amounts
that become payable with respect to
such award in accordance with and
subject to the terms and conditions
of the applicable incentive plan or
program, it being understood that
there shall be no duplication of
payments under this Agreement and
under such plan. The Company may,
in its sole discretion, extend the
Severance Period beyond the six
month period beginning on the
Termination Date, provided that the
Severance Period shall in no event
extend beyond the first anniversary
of the Termination Date.
(B) In the event of the termination of
Executive's employment pursuant to
Paragraph 6(a) due to a Termination
due to Disability or as a result of
Executive's death, Executive shall
be entitled to receive any amounts
that become payable in accordance
with and subject to the terms and
conditions of the applicable
incentive compensation plan or
program, it being understood that
there shall be no duplication of
payments under this Agreement and
under such plan.
(II) Limitations. Notwithstanding the provisions of
Paragraph 6(c)(I), if Executive materially breaches any of the
provisions of any of Paragraph 7, Executive shall forfeit all
rights to receive, and the Company shall be relieved of all
obligations to pay, any and all amounts then remaining to be
paid to Executive pursuant to Paragraph 6(c)(I).
d. Definitions. For purposes of Paragraphs 6 and 7, the
following capitalized terms have the following meanings:
"Termination Date" means the effective date of any early
termination of the Employment Period pursuant to Paragraph 6(a), it
being understood that in the event of a Termination Without Cause, the
effective date of such termination shall be the three month anniversary
of the date the Company delivers notice of such termination to
Executive.
"Termination for Cause" means a termination of Executive's
employment by the Company due to (a) Executive's conviction of a felony
or the entering by Executive of a plea of nolo contendere to a felony,
(b) Executive's gross negligence, dishonesty (other than of a de
minimis nature), willful malfeasance or substantial misconduct in
connection with his employment with the Company,
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(c) a substantial or continual refusal by Executive to perform the
duties, responsibilities or obligations reasonably assigned to him by
the Company or (d) a material breach by Executive of any covenant or
obligation in any written agreement with the Company or any of its
subsidiaries, including any breach of any of the provisions of
Paragraph 7 hereof. Notwithstanding the foregoing, a termination shall
not be treated as a Termination for Cause unless the Company shall have
delivered a written notice to Executive stating that it intends to
terminate his employment for Cause and specifying the factual basis for
such termination, and the event or events that form the basis for the
notice, if capable of being cured, shall not have been cured within 10
days of the receipt of such notice.
"Termination due to Disability" means a termination of
Executive's employment by the Company because Executive has been
incapable of substantially fulfilling the positions, duties,
responsibilities and obligations of his employment because of physical,
mental or emotional incapacity resulting from injury, sickness or
disease for a period of at least six months in any twelve month period.
Any question as to the existence, extent or potentiality of Executive's
disability upon which Executive and the Company cannot agree shall be
determined by a qualified, independent physician selected by the
Company and approved by Executive (which approval shall not be
unreasonably withheld). The determination of any such physician shall
be final and conclusive for all purposes of this Agreement. Executive
or his legal representative or any adult member of his immediate family
shall have the right to present to such physician such information and
arguments as to Executive's disability as he, she or they deem
appropriate, including the opinion of Executive's personal physician.
"Termination for Good Reason" a termination of Executive's
employment by Executive within 30 days following (a) a material
reduction in Executive's base salary, (b) a material breach by the
Company of any covenant or obligation of the Company in any written
agreement with Executive, in any such case, without Executive's written
consent, (c) a material reduction in Executive's roles and
responsibilities with the Company or (d) the relocation of Executive's
principal place of business to a location more than 100 miles from
Executive's current principal place of business. Notwithstanding the
foregoing, a termination shall not be treated as a Termination for Good
Reason unless the Executive shall have delivered a written notice to
the Company stating that he intends to terminate his employment for
Good Reason and specifying the factual basis for such termination, and
the event or events that form the basis for the notice, if capable of
being cured, shall not have been cured within 10 days of the receipt of
such notice.
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"Termination Without Cause" means any termination of
Executive's employment by the Company other than (i) a termination as a
result of Executive's death, (ii) a Termination due to Disability or
(iii) a Termination for Cause.
e. Full Discharge of Party's Obligations. Prior to Executive's
receipt of any amounts otherwise payable to Executive pursuant to Paragraph
6(c)(I)(A)(i) above, upon or following termination of his employment, and as a
condition to Executive's right to receive such amounts, Executive shall deliver
to the Company an acknowledgment that such amounts shall be in full and complete
satisfaction of Executive's rights under this Agreement and any other claims he
may have in respect of his employment by the Company or any of its subsidiaries.
Such amounts shall constitute liquidated damages with respect to any and all
such rights and claims and, upon Executive's receipt of such amounts, the
Company and its subsidiaries and Affiliates shall be released and discharged
from any and all liability to Executive in connection with this Agreement or
otherwise in connection with Executive's employment with the Company or any of
its subsidiaries. The acknowledgment shall constitute a general release of all
claims against the Company and its subsidiaries and Affiliates. If Executive
fails to deliver such acknowledgment within thirty days of the receipt by
Executive of a request for such acknowledgment, Executive shall not be entitled
to any payments pursuant to Paragraph 6(c)(I)(A)(i) above. For purposes of this
Agreement, the term "Affiliate" means any entity that controls, is controlled by
or is under common control with the Company.
7. Noncompetition and Confidentiality.
a. Noncompetition. During (i) the Employment Period and (ii)
the Severance Period and any extensions thereto (the Employment Period, together
with the period under clause (ii), the "Restriction Period"), Executive shall
not directly or indirectly engage in Competitive Activity within the United
States and any other country in which Parent, the Company or any of their
respective Affiliates or any of their respective successors is doing business.
"Competitive Activity" shall mean to be directly or indirectly engaged in a
business which at the time of Executive's termination of employment is
competitive with (i) the Company, any of its Affiliates or any of their
respective successors, or (ii) Parent's or any of its Affiliates' or any of
their respective successors' businesses involved in the sale, leasing and
distribution of Practice Management, Home Health Care, transaction processing,
acute care systems, and Ambulatory Clinical computer systems and all
accessories, service and supplies associated therewith ("Parent's Business"),
and that may reasonably be considered as being potentially harmful to the
profitability of Parent's Business, the Company or any of their respective
Affiliates or any of their respective successors. Notwithstanding clause (ii) of
the foregoing sentence, Executive shall not be precluded from engaging in any
activity that is competitive with the banking or insurance business of the
Parent, its' Affiliate or their respective successors. In case of doubt,
Executive must, before
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engaging in the activity, seek written approval from the Company's Chief
Executive Officer, who shall decide, based on the facts, whether the activity is
likely to be competitive and exercise discretion accordingly.
b. Confidentiality. Without the prior written consent of the
Company Board, except to the extent required by an order of a court having
competent jurisdiction or under subpoena from a government agency, during the
Employment Period and the ten year period following any termination of
Executive's employment with the Company, Executive shall not disclose, or use
for any purpose other than in connection with his employment with the Company or
its Affiliates, any trade secrets, customer lists, drawings, designs,
information regarding product development, marketing plans, sales plans, pricing
models, manufacturing plans, management organization information (including data
and other information relating to members of the Parent Board or the Company
Board and management), operating policies or manuals, business plans, financial
records, packaging design or other financial, commercial, business or technical
information relating to the Company or any of its subsidiaries or Affiliates or
information designated as confidential or proprietary that the Company or any of
its subsidiaries or Affiliates may receive belonging to suppliers, customers or
others who do business with the Company or any of its subsidiaries or Affiliates
(collectively, "Confidential Information") to any third person unless such
Confidential Information has been previously disclosed to the public by the
Company or is in the public domain (other than by reason of Executive's breach
of this Paragraph 7(b)) or unless the disclosure of such confidential
information would not reasonably be likely to have a material adverse effect on
the market value, business, operations, results of operations, assets, financial
conditions or prospects of the Company or any of its subsidiaries.
c. Ownership of Intellectual Property Rights. Executive
acknowledges that all of Executive's work on and contributions to the business
of the Company and/or any of its subsidiaries or Affiliates, including, without
limitation, any and all ideas, processes, methods, systems, programs,
programming aids, manufacturing techniques, software, flowcharts, developments,
inventions, enhancements, modifications and improvements which contribute to the
business of the Company and/or any of its subsidiaries, whether patented,
patentable or unpatentable, created by Executive during his employment by the
Company (collectively, the "Works") are within the scope of Executive's
employment with the Company, are a part of the services, duties and
responsibilities of Executive for the Company, are a result of the efforts of
the Company and is the property of the Company and not of Executive. All of
Executive's work on and contributions to the Works shall be rendered and made by
Executive for, at the instigation of, and under the overall direction of the
Company, and all of Executive's said work and contributions, as well as the
Works, are and at all times shall be regarded as "work made for hire" as that
term is used in the United States Copyright Laws. Without curtailing or limiting
these acknowledgments, Executive hereby assigns, grants and delivers exclusively
to the Company all rights, titles and interests in and to any such
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Works, and all copies and versions, including all copyrights and renewals. At
any time upon reasonable request by the Company, Executive will execute and
deliver to the Company, or its successors and assigns, such other and further
assignments, instruments and documents as the Company (or such successors or
assigns) from time to time reasonably may request for the purpose of
establishing, registering, evidencing, and enforcing or defending its complete,
exclusive, perpetual and worldwide ownership of all rights, titles, interests
and copyrights, in and to the Works, and Executive hereby constitutes and
appoints the Company as his agent and attorney-in-fact, with full power of
substitution, to execute and deliver such assignments, instruments or documents
as Executive may fail or refuse to execute and deliver, within five business
days of Executive's receiving written request from the Company to execute said
assignment, instrument or document, this power and agency being coupled with an
interest and being irrevocable. Executive shall from time to time as the Company
may reasonably request communicate and make known to the Company all knowledge
possessed by him relating to the Works; provided, however, that nothing herein
shall be construed as requiring any such communication where the Work is
lawfully protected from disclosure as the trade secret of a third party. Every
Work shall be and remain the exclusive property of the Company, it being the
intention of the parties that the Company shall have sole and exclusive
ownership rights in and to the Works.
Executive shall keep such records in connection with his
employment as the Company may from time to time reasonably direct, and all such
records shall be the sole and exclusive property of the Company. At any time and
from time to time, promptly upon the Company's request, Executive shall
surrender to the Company any and all documents, memoranda, computer programs,
codes, disks, diskettes, magnetic tapes, books, papers, letters, price lists,
notebooks, reports, logbooks, sales records, customer lists, activity reports,
video or audio recordings, and any and all copies thereof, relating to the
business of the Company or any of its subsidiaries, any Confidential Information
and all Works.
d. Company Property. Promptly following Executive's
termination of employment with the Company, Executive shall return to the
Company all property of the Company or any of its subsidiaries or Affiliates,
all Confidential Information, all Works, and all copies thereof, in whatever
medium, in Executive's possession or under his control.
e. Non-Solicitation of Employees. During the Restriction
Period, except in connection with the performance of Executive's duties
hereunder during the Employment Period, Executive shall not, and shall not
encourage or assist any other person, firm, corporation or other entity to,
induce any employee of the Company or any of its subsidiaries or Affiliates to
terminate employment with such entity, and shall not directly or indirectly,
either individually or as owner, agent, employee, consultant or otherwise,
employ or offer employment to any person who is or was employed by the
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Company or any of its subsidiaries or Affiliates unless such person shall have
ceased to be employed by such entity for a period of at least 6 months.
f. Non-Solicitation of Customers. During the Restriction
Period, Executive shall not, and shall not encourage or assist any other person,
firm, corporation or other entity to, solicit or otherwise attempt to establish
for himself or any other person, firm or entity, any business of a nature that
is competitive with the business or relationship of the Company or any of its
subsidiaries with any person, firm or corporation which during the twelve-month
period preceding the prohibited activity was a customer, client or distributor
of the Company or any of its subsidiaries, other than any such solicitation on
behalf of the Company during Executive's employment hereunder during the
Employment Period.
g. Injunctive Relief with Respect to Covenants. Executive
acknowledges and agrees that the covenants and obligations of Executive with
respect to noncompetition, "works made for hire," nonsolicitation,
confidentiality and Company property relate to special, unique and extraordinary
matters and that a violation or threatened violation of any of the terms of such
covenants or obligations will cause the Company and its subsidiaries and
Affiliates irreparable injury for which adequate remedies are not available at
law. Therefore, Executive agrees that the Company shall be entitled to an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) restraining Executive from committing or threatening
to commit any violation of the covenants and obligations contained in this
Paragraph 7. These injunctive remedies are cumulative and are in addition to any
other rights and remedies the Company may have at law or in equity or pursuant
to this Agreement.
8. Miscellaneous.
a. Survival. Paragraphs 6 (relating to early termination), 7
(relating to noncompetition, "works made for hire," nonsolicitation and
confidentiality) and 8 (relating to miscellaneous provisions) shall survive the
termination hereof, whether such termination shall be by expiration of the
Employment Period or an early termination pursuant to Paragraph 6 hereof.
b. Binding Effect. This Agreement shall be binding on, and
shall inure to the benefit of, the Company and any person or entity that
succeeds to the interest of the Company (regardless of whether such succession
does or does not occur by operation of law) by reason of the sale of all or a
portion of the Company's stock, a merger, consolidation or reorganization
involving the Company or, unless the Company otherwise elects in writing, a sale
of the assets of the business of the Company (or portion thereof) in which
Executive performs a majority of his services. This Agreement shall also inure
to the benefit of Executive's heirs, executors, administrators and legal
representatives.
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c. Assignment. Except as provided under Paragraph 8(b),
neither this Agreement nor any of the rights or obligations hereunder shall be
assigned or delegated by any party hereto without the prior written consent of
the other party.
d. Entire Agreement. This Agreement (which incorporates the
terms of the Cover Letter) constitutes the entire agreement between the parties
hereto with respect to the matters referred to herein. No other agreement
relating to the terms of Executive's employment by the Company, oral or
otherwise, shall be binding between the parties unless it is in writing and
signed by the party against whom enforcement is sought. There are no promises,
representations, inducements or statements between the parties related to the
subject matter hereof or otherwise relating to Executive's employment other than
those that are expressly contained herein. Executive acknowledges that he is
entering into this Agreement of his own free will and accord, and with no
duress, that he has been represented and fully advised by competent counsel in
entering into this Agreement, that he has read this Agreement and that he
understands it and its legal consequences. This Agreement supersedes all prior
agreements between the Company and Executive.
e. Severability; Reformation. In the event that one or more of
the provisions of this Agreement shall become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. In the event any
subparagraph of Paragraph 7 is not enforceable in accordance with its terms,
Executive and the Company agree that such subparagraph shall be reformed to make
such subparagraph enforceable in a manner which provides the Company the maximum
rights permitted at law.
f. Waiver. Waiver by any party hereto of any breach or default
by the other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or his rights hereunder on any
occasion or series of occasions.
g. Notices. Any notice required or desired to be delivered
under this Agreement shall be in writing and shall be delivered personally, by
courier service, by registered mail, return receipt requested, or by telecopy
and shall be effective upon actual receipt by the party to which such notice
shall be directed, and shall be addressed as follows (or to such other address
as the party entitled to notice shall hereafter designate in accordance with the
terms hereof). If to the Company:
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Sunquest Information Systems, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
If to Executive, to him at the address set forth on the
signature page hereof.
h. Amendments. This Agreement may not be altered, modified or
amended without the mutual consent of the parties hereto and except by a written
instrument signed by each of the parties.
i. Headings. Headings to paragraphs in this Agreement are for
the convenience of the parties only and are not intended to be part of or to
affect the meaning or interpretation hereof.
j. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
k. Withholding. Any payments provided for herein shall be
reduced by any amounts required to be withheld by the Company from time to time
under applicable Federal, State or local income or employment tax laws or
similar statutes or other provisions of law then in effect. All determinations
of the amount required to be withheld by the Company hereunder shall be
determined by the Company.
l. Governing Law. This Agreement shall be governed by the laws
of the Commonwealth of Pennsylvania, without reference to principles of
conflicts or choice of law under which the law of any other jurisdiction would
apply.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer and Executive has hereunto set his
hand as of the day and year first above written.
SUNSHINE ACQUISITION CORPORATION
By: /s/ Xxx Xxxxxxx
----------------------------
Name: Xxx Xxxxxxx
----------------------------
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Address: 00000 Xxxxxxx Xx Xxxx
Xxxxxx, XX 00000
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