Exhibit 10.6
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), dated as
of February 17, 1999, by and between NovaMed Eyecare Management, LLC, a
Delaware limited liability company (the "Company"), and Xxxxxxx X. Xxxxxx
("Employee").
PRELIMINARY RECITALS
A. The Company is an eye care services company engaged in the business
of: (i) providing comprehensive eye care services to eye care providers and
businesses ancillary thereto, including, without limitation, providing
financial, administrative, information technology, marketing and managed care
services to ophthalmic and optometric providers; (ii) owning, operating and/or
managing ambulatory surgery centers, refractive centers, excimer lasers,
optical dispensaries, wholesale optical laboratories, and an optical supplies
and equipment purchasing organization; and (iii) providing clinical research
and site management services to the eye care pharmaceutical and device
industries (collectively, the "Business").
B. The Company and Employee entered into an Employment Agreement dated
August 21, 1995 (the "Original Agreement").
C. In consideration for the continued employment of Employee, and the
Company's grant to Employee of options to acquire shares of common stock of
NovaMed Holdings Inc., the parent company of the Company of even date herewith,
the parties hereto desire to amend the terms and conditions of the Original
Agreement, all on the terms and conditions set forth herein.
D. The Company desires to continue to employ Employee, and Employee
desires to continue to be employed by the Company, as Chairman, President and
Chief Executive Officer of the Company on the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants of
the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
Employment
1.1 Engagement of Employee. The Company agrees to continue to employ
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Employee, and Employee accepts such continued employment by the Company, for
the period beginning February 17, 1999 (the "Effective Date") and ending on
February 16, 2002 (the "Initial Employment Period"). The Initial Employment
Period and any Renewal Period (as hereinafter
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defined) shall automatically be renewed and extended on the same terms and
conditions contained herein for consecutive one-year periods (the "Renewal
Periods"), unless not later than sixty (60) days prior to the end of the Initial
Employment Period or any Renewal Period, either party shall give written notice
to such other party electing to terminate this Agreement. The Initial Employment
Period and the Renewal Periods are hereinafter referred to as the "Employment
Period." For purposes of this Agreement, any notice of termination electing not
to renew this Agreement pursuant to this Section 1.1 shall be deemed: (i) a
termination without cause if such notice is delivered by the Company; or (ii) a
voluntary termination of employment if such notice is delivered by Employee;
provided, however, that if the Employment Period is terminated pursuant to this
Section 1.1 by Employee, then notwithstanding Section 3.3, the Company shall
have no further obligations hereunder or otherwise with respect to Employee's
employment from and after the expiration of the Employment Period (except
payment of Employee's Base Salary, Benefits and Special Benefits accrued through
the expiration of the Employment Period). Notwithstanding anything to the
contrary contained herein, the Employment Period is subject to termination
pursuant to Article III below.
1.2 Duties and Powers. During the Employment Period, Employee will have
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such responsibilities, duties and authorities, and will render such services or
act in such other capacity for the Company and its affiliates as the Board of
Directors (the "BOARD") of NovaMed Holdings Inc. ("Holdings"), the manager and
parent of the Company (or any designated officer of Holdings or the Company),
may from time to time direct. Employee will devote his best efforts, energies
and abilities and his full business time, skill and attention (except for
permitted vacation periods and reasonable periods of illness or other
incapacity) to the business and affairs of the Company, and shall perform the
duties and carry out the responsibilities assigned to him, to the best of his
ability, in a diligent, trustworthy, businesslike and efficient manner for the
purpose of advancing the Company. Employee acknowledges that his duties and
responsibilities will require his full-time business efforts and agrees that
during the Employment Period he will not engage in any other business activity
or have any business pursuits or interests except activities or interests which
do not conflict with the business of the Company, Holdings and any of their
affiliated entities or interfere with the performance of Employee's duties
hereunder.
1.3 No Violation. Employee represents and warrants that the execution of
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this Agreement by Employee and the performance by Employee of his duties as an
employee of the Company will not violate, conflict with or result in a breach or
default under any agreements, arrangements or understandings to which Employee
is or was a party, or by which he is or was bound, nor will the performance of
Employee's duties as an employee of the Company be limited, restricted or
impaired in any manner as a result of any agreements, arrangements or
understandings to which Employee is or was a party.
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ARTICLE II
Compensation
2.1 Base Salary. During the Employment Period, the Company will pay
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Employee a base salary at the rate of $250,000 per annum (the "Base Salary"),
payable in regular installments in accordance with the Company's general payroll
practices for salaried employees. If the Employment Period is terminated
pursuant to SECTION 3 (subject to any severance provisions in Section 3.3),
Employee's Base Salary for any partial year will be prorated based upon the
number of days elapsed in such year during which services were actually
performed by Employee. The Board or any designated officer shall perform an
annual review of Employee's Base Salary based on Employee's Performance of his
duties and the Company's other compensation policies; provided that any increase
in the Base Salary shall require approval of the Board.
2.2 Discretionary Bonus. Following the end of each fiscal year, the Board,
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in its sole discretion, may elect to cause the Company to award to Employee a
bonus for such year, in an amount to be determined by the Board, based on such
performance targets as shall be established, and adjusted from time to time, by
the Board's compensation committee.
2.3 Benefits. In addition to the Base Salary payable to Employee
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hereunder, Employee will be entitled to the following benefits during the
Employment Period, unless otherwise altered by the Board with respect to all
management employees of the Company (collectively, the "Benefits"):
(a) hospitalization, disability, life and health insurance, to the
extent offered by the Company, and in amounts consistent with Company policy,
for all management employees, as reasonably determined by the Board;
(b) paid vacation each year with salary, consistent with Company
policy for all management employees;
(c) reimbursement for reasonable out-of-pocket business expenses
incurred by Employee in the ordinary course of his duties, subject to the
Company's policies in effect from time to time with respect to travel,
entertainment and other expenses, including without limitation, requirements
with respect to reporting and documentation of such expenses;
(d) other benefit arrangements, including a 401 (K) or similar tax
deferral plan, to the extent made generally available by the Company to its
management employees; and
(e) participation in Holdings' Stock Incentive Plan such that Employee
is granted options to purchase an amount of the common equity interest in
Holdings consistent with the determination of the Board or its Compensation
Committee pursuant to such plan.
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2.4 Special Benefits. In addition to the Base Salary payable to Employee
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hereunder and the Benefits Employee is entitled to hereunder, Employee will be
entitled to a $750 per month automobile allowance during the Employment Period
(the "Special Benefits").
2.5 Taxes, etc. All compensation payable to Employee hereunder is stated
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in gross amount and shall be subject to all applicable withholding taxes, other
normal payroll and any other amounts required by law to be withheld.
ARTICLE III
Termination
3.1 Termination By Employee or the Company. The Employment Period (i)
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shall automatically terminate immediately upon Employee's resignation or
death, or (ii) may be terminated by the Company as set forth herein for Cause
or without Cause, or by reason of Employee's Permanent Disability.
"Cause" as used herein means the occurrence of any of the following
events:
(a) a material breach by Employee of any of the terms and conditions
of this Agreement;
(b) Employee's gross negligence in the performance of his duties or
material failure or willful refusal to perform his duties;
(c) Employee's failure, as notified by the Company in writing, to
comply with any of the Company's written guidelines or procedures promulgated by
the Company and furnished to Employee, including, without limitation, any
guidelines or procedures relating to marketing or community relations; provided
that Employee shall have a reasonable period of time during which to cure such
failure following the date on which Employee receives the Company's written
notice of such failure;
(d) the determination by the Board in the exercise of its reasonable
judgment that Employee has committed an act that materially negatively affects
the Company's business or reputation; or
(e) the determination by the Board in the exercise of its reasonable
judgment that Employee has committed an act or acts constituting a felony or
other act involving dishonesty, disloyalty or fraud against the Company.
"Permanent Disability" as used herein shall mean that Employee is unable
to perform, with or without reasonable accommodation, by reason of physical or
mental incapacity, the essential functions of his or her position. The Board
shall determine, according to the facts then available, whether and when a
Permanent Disability has occurred. Such determination shall not be arbitrary or
unreasonable, and shall be final and binding on the parties hereto.
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3.2 Termination by Employee. Employee has the right to terminate his
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employment under this Agreement at any time, for any or no reason, upon ninety
(90) days written notice to the Company.
3.3 Compensation After Termination.
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(a) If the Employment Period is terminated (i) by the Company for
Cause or due to the death or Permanent Disability of Employee, (ii) by Employee
(including a termination resulting from Employee's election not to renew this
Agreement under Section 1.1 hereof), then the Company shall have no further
obligations hereunder or otherwise with respect to Employee's employment from
and after the termination or expiration date (except payment of Employee's Base
Salary accrued through the date of termination or expiration), and the Company
shall continue to have all other rights available hereunder (including, without
limitation, all rights under Article IV hereof) at law or in equity;
(b) If the Employment Period is terminated by the Company without
Cause (including a termination resulting from the Company's election not to
renew this Agreement under Section 1.1 hereof), the Employee shall be entitled
to receive Severance Pay (as hereinafter defined) for a period of eighteen (18)
months, payable in regular installments in accordance with the Company's general
payroll practices for salaried employees. Receipt of Severance Pay is contingent
upon Employee executing and adhering to a release of all employment claims in a
form acceptable to the Company. The Company shall have no further obligations
hereunder or otherwise with respect to Employee's employment from and after the
termination date, and the Company shall continue to have all other rights
available hereunder (including without limitation, all rights under Article IV
hereof) at law or in equity.
(c) For purposes of this Agreement, "Severance Pay" shall include (i)
Employee's Base Salary hereunder, (ii) the bonus that Employee would have
received under SECTION 2.2 hereof at the end of the year during which
termination without cause occurs had such termination not occurred, which bonus
shall be prorated to cover the severance period set forth in Section 3.3(b)
hereof, and (iii) continuation of the Benefits for the severance period set
forth in Section 3.3(b) hereof.
ARTICLE IV
Restrictive Covenants
4.1 Employee's Acknowledgment. Employee acknowledges that:
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(a) the Company is and will be engaged in the Business during the
Employment Period and thereafter;
(b) Employee is one of a limited number of persons who will be
developing the Business;
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(c) Employee will occupy a position of trust and confidence with the
Company after the date of this Agreement, and during such period and Employee's
employment under this Agreement, Employee will become familiar with the
Company's trade secrets and with other proprietary and confidential information
concerning the Company and the Business;
(d) the agreements and covenants contained in this Article IV are
essential to protect the Company and the goodwill of the Business and are a
condition precedent to the Company entering into this Agreement;
(e) Employee's employment with the Company has special, unique and
extraordinary value to the Company and the Company would be irreparably damaged
if Employee were to provide services to any person or entity in violation of the
provisions of this Agreement;
(f) Employee has means to support himself and his dependents other
than by engaging in the Business, or a business similar to the Business, and the
provisions of this Article IV will not impair such ability; and
(g) for purposes of this Article IV, the term "Company" shall include
the Company, Holdings and any of their respective subsidiaries and affiliates.
4.2 Non-Compete. Employee hereby agrees that for a period commencing on
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the date hereof and ending on the date of termination or expiration of his
employment with the Company for any reason (the "TERMINATION DATE"), and
thereafter, through the period ending on the first anniversary of the
Termination Date (collectively, the "Restrictive Period"), he shall not,
directly or indirectly, as employee, agent, consultant, stockholder, director,
co-partner or in any other individual or representative capacity, own, operate,
manage, control, engage in, invest in or participate in any manner in, act as a
consultant or advisor to, render services for (alone or in association with any
person, firm, corporation or entity), or otherwise assist any person or entity
(other than the Company) that engages in or owns, invests in, operates, manages
or controls any venture or enterprise that directly or indirectly engages or
proposes to engage in any element of the Business anywhere within a 100-mile
radius of the Chicago metropolitan area or within a 100-mile radius of any area
(or in the event such area is a major city, the metropolitan area relating to
such city) in which the Company on the Termination Date engages in any element
of the Business (the "Territory"); provided, however, that nothing contained
herein shall be construed to prevent Employee from investing in the stock of any
competing corporation listed on a national securities exchange or traded in the
over-the-counter market, but only if Employee is not involved in the business of
said corporation and if Employee and his associates (as such term is defined in
Regulation 14(A) promulgated under the Securities Exchange Act of 1934, as in
effect on the date hereof), collectively, do not own more than an aggregate of
3% of the stock of such corporation. With respect to the Territory, Employee
specifically acknowledges that the Company intends to expand the Business into
and throughout the United States.
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4.3 Interference with Relationships. Without limiting the generality of the
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provisions of Section 4.2 hereof, Employee hereby agrees that, during the
Restrictive Period, he will not, directly or indirectly, solicit or encourage,
or participate as employee, agent, consultant, stockholder, director, partner or
in any other individual or representative capacity, in any business which
solicits or encourages (a) any person, firm, corporation or other entity which
has executed, or proposes to execute, a management services agreement with the
Company at any time during the term of this Agreement, or from any successor in
interest to any such person, firm, corporation or other entity, for the purpose
of securing business or contracts related to any element of the Business, or (b)
any present or future customer or patient of the Company or any of its
affiliated practices to terminate or otherwise alter his, her or its
relationship with the Company or such affiliated practice; provided, however,
that nothing contained herein shall be construed to prohibit or restrict
Employee from soliciting business from any such parties on behalf of the Company
in performance of his duties as an employee of the Company required under and as
specifically contemplated by Section 1.2 above.
4.4 Nonsolicitation. Other than in the performance of his duties hereunder,
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during the Restrictive Period, Employee shall not, directly or indirectly, as
employee, agent, consultant, stockholder, director, co-partner or in any other
individual or representative capacity, employ or engage, recruit or solicit for
employment or engagement, any person who is or becomes employed or engaged by
the Company or any of its affiliated practices during the Restrictive Period, or
otherwise seek to influence or alter any such person's relationship with the
Company.
4.5 Confidential Information. Other than in the performance of his duties
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hereunder, during the Restrictive Period and thereafter, Employee shall keep
secret and retain in strictest confidence, and shall not, without the prior
written consent of the Company, furnish, make available or disclose to any third
party or use for the benefit of himself or any third party, any Confidential
Information. As used in this Agreement, "Confidential Information" shall mean
any information relating to the business or affairs of the Company or the
Business, including but not limited to any technical or non-technical data,
formulae, compilations, programs, devices, methods, techniques, designs,
processes, procedures, improvements, models, manuals, financial data,
acquisition strategies and information, information relating to operating
procedures and marketing strategies, and any other proprietary information used
by the Company in connection with the Business, irrespective of its form;
provided, however, that Confidential Information shall not include any
information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Employee. Employee acknowledges that the
Confidential Information is vital, sensitive, confidential and proprietary to
the Company.
4.6 Inventions and Discoveries.
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(a) Employee understands and agrees that all inventions, discoveries,
ideas, improvements, whether patentable, copyrightable or not, pertaining to the
Business of the Company or relating to the Company's actual or demonstrably
anticipated research, development or inventions (collectively, "Inventions and
Discoveries") that result from any work performed by Employee solely or jointly
with others for the Company which Employee, solely or jointly with
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others, conceives, develops, or reduces to practice during the course of
Employee's employment with the Company, are the sole and exclusive property of
the Company. Employee will promptly disclose all such matters to the Company and
will assist the Company in obtaining legal protection for Inventions and
Discoveries. Employee hereby agrees on behalf of himself, his executors, legal
representatives and assignees that he will assign, transfer and convey to the
Company, its successors and assigns the Inventions and Discoveries.
(b) THE COMPANY AND EMPLOYEE ACKNOWLEDGE AND AGREE THAT SECTION 4.6(a)
SHALL NOT APPLY TO AN INVENTION OF EMPLOYEE FOR WHICH NO EQUIPMENT, SUPPLIES,
FACILITY OR TRADE SECRET INFORMATION OF THE COMPANY WAS USED AND WHICH WAS
DEVELOPED ENTIRELY ON EMPLOYEE'S OWN TIME, UNLESS (A) THE INVENTION RELATED (I)
TO THE BUSINESS OF THE COMPANY OR (II) TO THE COMPANY'S ACTUAL OR DEMONSTRABLY
ANTICIPATED RESEARCH OR DEVELOPMENT, OR (B) THE INVENTION RESULTS FROM ANY WORK
PERFORMED BY EMPLOYEE FOR THE COMPANY. EMPLOYEE AND THE COMPANY FURTHER
ACKNOWLEDGE AND AGREE THAT SECTION 4.6(a) SHALL NOT APPLY TO ANY INVENTIONS OR
WORK PRODUCT DEVELOPED OR VESTED BY EMPLOYEE PRIOR TO THE EFFECTIVE DATE.
(c) EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS SECTION 4.6 AND FULLY
UNDERSTANDS THE LIMITATIONS WHICH IT IMPOSES UPON HIM AND HAS RECEIVED A
DUPLICATE COPY OF THIS AGREEMENT FOR HIS RECORDS.
4.7 Blue-Pencil. If any court of competent jurisdiction shall at any time
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deem the term of this Agreement or any particular Restrictive Covenant (as
defined) too lengthy or the Territory too extensive, the other provisions of
this Section 4 shall nevertheless stand, the Restrictive Period herein shall be
deemed to be the longest period permissible by law under the circumstances and
the Territory herein shall be deemed to comprise the largest territory
permissible by law under the circumstances. The court in each case shall reduce
the time period and/or Territory to permiissible duration or size.
4.8 Remedies. Employee acknowledges and agrees that the covenants set
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forth in this Section 4 (collectively, the "Restrictive Covenants") are
reasonable and necessary for the protection of the Company's business interests,
that irreparable injury will result to the Company if Employee breaches any of
the terms of said Restrictive Covenants, and that in the event of Employee's
actual or threatened breach of any such Restrictive Covenants, the Company will
have no adequate remedy at law. Employee accordingly agrees that in the event of
any actual or threatened breach by him of any of the Restrictive Covenants, the
Company shall be entitled to immediate temporary injunctive and other equitable
relief, without bond and without the necessity of showing actual monetary
damages, subject to hearing as soon thereafter as possible. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any other
remedies
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available to it for such breach or threatened breach, including the recovery of
any damages which it is able to prove.
ARTICLE V
Miscellaneous
5.1 Notices. Any notice provided for in this Agreement must be in writing
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and must be either (i) personally delivered, (ii) mailed by registered or
certified first class mail, prepaid with return receipt requested or (iii) sent
by a recognized overnight courier service, to the recipient at the address below
indicated:
To the Company:
NovaMed Eyecare Management, LLC
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx, Xx.
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
To Employee:
Xxxxxxx X. Xxxxxx
____________________________________
____________________________________
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given (a) on the date
such notice is personally delivered, (b) three (3) days after the date of
mailing if sent by certified or registered mail, or (c) one (1) day after the
date such notice is delivered to the overnight courier service if sent by
overnight courier.
5.2 Severability. Whenever possible, each provision of this Agreement will
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be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed,
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construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
5.3 Entire Agreement. This Agreement, those documents expressly referred
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to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
5.4 Counterparts. This Agreement may be executed on separate
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counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
5.5 Successors and Assigns. This Agreement is intended to bind and inure
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to the benefit of and be enforceable by Employee and the Company and their
respective successors and permitted assigns. Employee may not assign any of his
rights or obligations hereunder without the written consent of the Company.
5.6 No Strict Construction. The language used in this Agreement will be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
5.7 Amendments and Waivers. Any provision of this Agreement may be
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amended or waived only with the prior written consent of the Company and
Employee.
5.8 Governing Law. This Agreement shall be construed and enforced in
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accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Illinois, without giving effect to provisions thereof regarding
conflict of laws.
5.9 Income Tax Treatment. Employee and the Company acknowledge that it is
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the intention of the Company to deduct all amounts paid under this Agreement as
ordinary and necessary business expenses for income tax purposes. Employee
agrees and represents that he will treat all such amounts as ordinary income for
income tax purposes, and should he report such amounts as other than ordinary
income for income tax purposes, he will indemnify and hold the Company harmless
from and against any and all taxes, penalties, interest, costs and expenses,
including reasonable attorneys' and accounting fees and costs, which are
incurred by Company directly or indirectly as a result thereof.
5.10 CONSENT TO JURISDICTION. THE COMPANY AND EMPLOYEE HEREBY CONSENT TO
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THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF
XXXX, STATE OF ILLINOIS AND IRREVOCABLY AGREE THAT SUBJECT TO THE COMPANY'S
ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT
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SHALL BE LITIGATED IN SUCH COURTS. EMPLOYEE ACCEPTS FOR HIMSELF AND IN
CONNECTION WITH HIS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT.
5.11 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE THEIR
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RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED. THE PARTIES HERETO ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON
SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE OTHER PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, DISCRIMINATION CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THE PARTIES HERETO ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. THE COMPANY AND EMPLOYEE FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH THEIR RESPECTIVE
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES THEIR RESPECTIVE
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement on
the day and year first above written.
COMPANY:
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NovaMed Eyecare Management, LLC, a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
EMPLOYEE:
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/s/ Xxxxxxx X. Xxxxxx
_____________________
Xxxxxxx X. Xxxxxx
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Xxx Xxxxxxxxxx is filing this Schedule pursuant to Instruction 2 to Item 601 of
Regulation S-K to identify the other documents omitted from being filed as
exhibits to Amendment No. 1 to the Registration Statement on Form S-1,
Registration No. 333-79271, as filed with the Commission on July 2, 1999. Except
as set forth below, the following documents are the same as the Amended and
Restated Employment Agreement by and between NovaMed Eyecare, Inc. and Xxxxxxx
X. Xxxxxx dated February 17, 1999 filed as Exhibit 10.6 to the Registration
Statement.
Amended and Restated Employment Agreement by and between NovaMed Eyecare, Inc.
and Xxxxxx X. Xxxxxx dated February 17, 1999.
Job Title: Executive Vice President and Chief Financial Officer
Term: 3 years
Salary: $200,000 per year
Severance Period: 9 months
Amended and Restated Employment Agreement by and between NovaMed Eyecare, Inc.
and E. Xxxxxxx Xxxxxxx dated February 17, 1999.
Job Title: Executive Vice President Operations
Term: 3 years
Salary: $200,000 per year
Severance Period: 9 months
Employment Agreement by and between NovaMed Eyecare, Inc. and Xxxxxx X. Xxxxxxx
dated April 19, 1999.
Job Title: Senior Vice President Marketing
Term: 2 years
Salary: $175,000 per year
Severance Period: 6 months
Employment Agreement by and between NovaMed Eyecare, Inc. and J. Xxxx Xxxxxx
dated April 12, 1999.
Job Title: Senior Vice President Sales
Term: 2 years
Salary: $175,000 per year
Severance Period: 6 months
