Exhibit 10.21
AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDMENT TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Amendment") is made and entered into effective as of March 9, 2000, by and
between NovaMed Eyecare Services, LLC, a Delaware limited liability company (the
"Company"), and E. Xxxxxxx Xxxxxxx ("Employee").
RECITALS
A. The Company and Employee have previously entered into an Amended and
Restated Employment Agreement dated as of February 17, 1999 (the "Original
Agreement").
B. In consideration for the grant of stock options by the Company to
Employee pursuant to the terms and conditions of a Stock Option Agreement of
even date herewith, and the continued employment of Employee by the Company, the
Company and Employee desire to amend the terms and conditions of the Original
Agreement, as hereinafter provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
TERMS
1. Section 3.3(b) and (c) of the Original Agreement will be deleted and
replaced with the following language comprising a new Section 3.3(b):
(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, as severance, the following (collectively, the
"Severance Pay"): (i) Employee's Base Salary hereunder for a period of nine
(9) months (such time period to be hereinafter referred to as the
"Severance Period"), payable in regular installments in accordance with the
Company's general payroll practices for salaried employees; (ii) the bonus,
if any, 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 will be (A) prorated based on the
amount of time that Employee was employed by the Company during the year
(not including the Severance Period) for which such bonus is being
calculated and (B) determined and paid to Employee contemporaneously with
the determination and payment of bonuses for comparable employees of the
Company; and (iii) continuation of the Benefits for the Severance Period.
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.
2. The following sentence will be added at the end of Section 4.3 of the
Original Agreement:
In addition, at all times from and after the Termination Date,
Employee shall not contact or communicate in any manner with any of
Employer's suppliers or vendors, or any other third party providing
services to Employer, regarding Employer or any Employer-related matter
(which suppliers, vendors or third party service providers will include,
without limitation, any third party with whom Employer was, during the term
of Employee's employment with Employer, contemplating engaging, or
negotiating with, for the future provision of products or services).
3. The following provision will be added at the end of Article IV of the
Original Agreement as Section 4.9:
Section 4.9 Covenant Not to Disparage. During the Restrictive Period
and thereafter, Employee shall not disparage, denigrate or derogate in any
way, directly or indirectly, any of the Company, its agents, officers,
directors, employees, parent, subsidiaries, affiliates, affiliated
practices, affiliated doctors, representatives, attorneys, executors,
administrators, successors and assigns (collectively, the "Protected
Parties"), nor shall Employee disparage, denigrate or derogate in any way,
directly or indirectly, his experience with any Protected Party, or any
actions or decisions made by any Protected Party.
4. Except as expressly provided in this Amendment, the Original Agreement
will remain in full force and effect in accordance with its existing terms.
* * * *
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first written above.
NOVAMED EYECARE SERVICES, LLC
By: NovaMed Eyecare, Inc., its Manager
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chairman of the Board,
President and Chief Executive Officer
/s/ E. Xxxxxxx Xxxxxxx
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E. Xxxxxxx Xxxxxxx
