EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (the “Agreement”), entered into on September 8, 2006, by and between
iCAD, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxxxx-Xxxxx
(the “Executive”).
WITNESSETH:
WHEREAS,
the Company desires to employ the Executive as its Executive Vice President
of
Finance and Chief Financial Officer upon the terms and subject to the conditions
set forth in this Agreement; and
WHEREAS,
the Executive is willing to accept such employment upon such terms;
NOW,
THEREFORE, in consideration of the covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT
AND DUTIES
1.1. Term
of Employment.
The
Executive’s employment under this Agreement shall commence on September
11, 2006 (the “Start Date”) and shall continue until December 31,
2008, (such period being herein referred to as the “Initial Term,” and the
period from the Start Date through December 31, 2006 and any year
thereafter ending on December 31 shall be referred to as an “Employment
Year”). After the Initial Term and on the last day of any Employment Year
thereafter, this Agreement shall be automatically renewed for successive one
year periods (each such period being referred to as a “Renewal Term”), unless,
more than ninety (90) days prior to the expiration of the Initial Term or any
Renewal Term, either the Executive or the Company gives written notice that
employment will not be renewed, whereupon the term of the Executive’s employment
(the “Term”) shall terminate upon the expiration of the Initial Term or the then
current Renewal Term, unless sooner terminated pursuant to Section 5
hereof.
1.2. General.
1.2.1. During
the Term, the Executive shall have the title of Executive Vice President of
Finance and Chief Financial Officer of the Company and shall have such duties
as
may be from time to time delegated to her by the Chief Executive Officer and
the
Board of Directors of the Company (the “Board”). The Executive shall faithfully
and diligently discharge her duties hereunder and use her best efforts to
implement the policies established by the Board. The Executive's
responsibilities shall include, among other things, to render executive, policy,
operations and other management services to the Company of the type customarily
provided by persons situated in similar executive and management
capacities.
The
Executive shall devote all of her business time, attention, knowledge and skills
faithfully, diligently and to the best of her ability, in furtherance of the
business and activities of the Company, provided,
however,
that
nothing in this Agreement shall preclude the Executive from devoting reasonable
periods of time required for serving as a director and member of a committee
of
the board of directors of any of the organizations or corporations of which
the
Executive currently serves or may serve in the future so long as (i) such
activities involve no conflict of interest with the interests of the Company,
(ii) the Executive notifies the Board of Directors of the Company of any new
appointment and the Board does not object to such appointment, and (iii) such
activities do not materially interfere with the performance of the Executive’s
duties and responsibilities under this Agreement.
1.3. Reimbursement
of Expenses.
(a) The
Company shall pay to the Executive the reasonable expenses incurred by her
in
the performance of her duties hereunder, including, without limitation, those
incurred in connection with the use of an automobile, business related travel
or
entertainment, or, if such expenses are paid directly by the Executive, the
Company shall promptly reimburse her for such payments, provided that the
Executive properly accounts for such expenses in accordance with the Company's
policy.
(b) The
Company shall pay to the Executive an automobile expense allowance in the amount
of $1,000 per month. The Executive shall pay all the expenses of maintaining,
insuring and operating such automobile.
1.4
Consideration.
In
consideration for the Executive’s execution of this Agreement, the Company
agrees that the Executive shall become employed by the Company as set forth
in
this Agreement, the Executive shall be permitted access to the Company’s
confidential information and shall be eligible to receive post-Term severance
payments (Sections 5.4.2 and 5.4.3) as set forth in this Agreement (subject
to
her compliance with Sections 7 and 8 of this Agreement). The Executive
understands, acknowledges and agrees that the Executive would not receive the
consideration specified in this Section 1.4, except for the Executive’s
execution of this Agreement and the fulfillment of the promises contained
herein.
2. COMPENSATION
2.1. Base
Salary.
During
the Term, the Executive shall be entitled to receive a base salary (“Base
Salary”) at a rate of two hundred five thousand dollars ($205,000.00) per annum
during the Term, which Base Salary shall be payable in arrears in equal
installments not less frequently than on a bi-monthly basis in accordance with
the payroll practices of the Company, with such increases as may be determined
by the Board from time to time.
2.2. Signing
Bonus.
In
addition to the Base Salary, the Company shall pay to the Executive a signing
bonus of $20,000, which bonus shall be paid with the Company’s first payroll
following the commencement of the Term.
2.3. Incentive
Bonus.
The
Executive shall be eligible to receive, for each Employment Year during the
Term
(other than the year ending December 31, 2006), an annual incentive bonus in
each calendar year ending December 31 of up to an amount equal to $82,000
(the “Incentive Bonus”) if the Company achieves goals and objectives mutually
agreed upon in writing by the Board of Directors and the Executive for each
Employment Year; provided, however, that the Incentive Bonus for the year ending
December 31, 2006 shall be such amount as determined by the Board of
Directors but in any event not be less than $27,000. The Incentive Bonus shall
be paid in a single lump sum no later than 15 calendar days following the date
on which the Company files with the Securities and Exchange Commission (the
“SEC”) its Annual Report on Form 10-K (or Form 10-KSB) which includes audited
financial statements for such Employment Year audited by an independent
registered public accounting firm.
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2.4. Stock
Options.
(a)
In
addition to the Base Salary and Incentive Bonuses, if any, the Executive shall
receive, as incentive compensation, options (“Options”) to purchase up to an
aggregate of 275,000 shares (the “Shares”) of common stock of the Company,
pursuant to and upon the terms and conditions set forth in the form of Option
Agreement (the “Option Agreement”) attached as Exhibit A hereto. The Options
shall vest and be exercisable as to 55,000 of the Shares immediately, 55,000
of
the Shares on March 31, 2007, 55,000 of the Shares on September 11, 2007, 55,000
of the Shares on September 11, 2008 and 55,000 of the Shares on September 11,
2009, subject to earlier vesting as set forth in this Section 2.4 and Section
5.4.4(ii), and thereafter until September 11, 2011, subject to earlier
termination as provided in the Option Agreement, at an exercise price per share
equal to the
last
sales price for the Company's common stock on the date hereof.
Vesting
of the Options shall accelerate as to the 55,000 Shares to which the Option
becomes exercisable at the latest date (to the extent any such Shares remain
unvested at the time), upon the closing sale price of the Company’s common stock
for a period of twenty (20) consecutive trading days exceeding
(i) 200% of the exercise price of the per share of the Options;
(ii) 300% of the exercise price per share of the Options or (iv) 400% of
the exercise price per share of the Options.
(b)
The
Executive agrees not to sell, contract to sell, sell or grant any option, right,
warrant or option to purchase, purchase any option or contract to sell, pledge,
hypothecate or otherwise transfer or dispose of the Shares prior to September
11, 2007.
2.5. Additional
Compensation.
In
addition to the Base Salary, Additional Salary and the Incentive Bonuses, if
any, and the Options, the Executive shall be entitled to receive such other
cash
bonuses and such other compensation in the form of stock, stock options or
other
property or rights as may from time to time be awarded her by the Board during
or in respect of her employment hereunder.
3. PLACE
OF
PERFORMANCE. In connection with her employment by the Company, the Executive
shall be based at the Company’s principal executive offices in Nashua, New
Hampshire, subject to the mutual agreement of the Executive and the Company
to
relocate her to another office of the Company.
4. EMPLOYEE
BENEFITS
4.1. Benefit
Plans.
The
Executive shall, during the Term, be included to the extent eligible thereunder
in all employee benefit plans, programs or arrangements of general application
(including, without limitation, any plans, programs or arrangements providing
for retirement benefits, options and other equity-based incentive compensation,
profit sharing, bonuses, disability benefits, health and life insurance, or
vacation and paid holidays) which shall be established by the Company or any
affiliate of the Company, for, or made available to, their respective senior
executives (“Benefits”). During the Term, the Benefits described in this Section
4.1 may only be reduced as a result of a general reduction for senior
executives.
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4.2. Vacation.
The
Executive shall be entitled to not less than four (4) weeks vacation at full
pay
for each year during the Term. Such vacation may be taken in the Executive’s
discretion, and at such time or times as are not inconsistent with the
reasonable business needs of the Company.
5. TERMINATION
OF EMPLOYMENT
5.1. General.
The
Executive’s employment under this Agreement may be terminated without any breach
of this Agreement only on the following circumstances:
5.1.1. Death.
The
Executive’s employment under this Agreement shall terminate upon her
death.
5.1.2. Disability.
If, as
a result of the Executive’s Disability (as defined below), the Executive shall
have been absent from her duties under this Agreement for sixty (60) consecutive
days, the Company may terminate the Executive’s employment upon fifteen (15)
days prior written notice; provided that the Executive has not returned to
full
time performance of her duties during such fifteen (15)-day period. For purposes
hereof, “Disability” shall mean that the Executive is unable to perform her
normal and customary duties hereunder as a result of physical or mental
incapacity, illness or disability.
5.1.3. Good
Reason.
The
Executive may terminate her employment under this Agreement for Good Reason
at
any time. For purposes of this Agreement, “Good Reason” shall mean:
(i) The
failure by the Company to comply with its material obligations and agreements
contained in this Agreement;
(ii) A
material diminution of the executive responsibilities or title of the Executive
with the Company without the consent of the Executive; or
(iii) A
reduction by the Company in the Base Salary as in effect on the date hereof,
or
as the same may be increased from time to time, without the express written
consent of the Executive,
provided,
however,
that
the Executive shall have provided the Company with written notice that such
actions are occurring and the Company has been afforded a reasonable opportunity
of at least thirty (30) days to cure the same.
5.1.4. Cause.
The
Company may terminate the Executive’s employment under this Agreement for Cause.
Termination for “Cause” shall mean termination of the Executive’s employment
because of the occurrence of any of the following as determined by the
Board:
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(i) the
failure or refusal by the Executive to substantially perform her obligations
under this Agreement (other than any such failure resulting from the Executive’s
incapacity due to physical or mental incapacity, illness or disease);
provided,
however,
that
the Company shall have provided the Executive with written notice that such
actions are occurring and the Executive has been afforded a reasonable
opportunity of at least fifteen (15) days to cure same, or
(ii) the
indictment of the Executive for a felony or other crime involving moral
turpitude or dishonesty; or
(iii) a
breach
of Section 7 or Section 8 hereof or a breach of any representation contained
in
this Agreement by the Executive; or
(iv) a
breach
of fiduciary duty involving personal profit; or
(v) a
material act of dishonesty in connection with her employment with the Company;
or
(vi) the
Executive’s possession or use of illicit drugs, a prohibited substance or
alcohol, to such extent that it impairs her ability to perform her duties and
responsibilities; or
(vii) the
Executive having committed acts or omissions constituting gross negligence
or
willful misconduct (including theft, fraud, embezzlement, and securities law
violations) which is injurious to the Company, monetarily, or otherwise. For
purposes of this Section 5.1.4(vii), no act, or failure to act, on the part
of
the Executive shall be considered “gross negligence” or “willful” unless done,
“or” omitted to be done, by her in bad faith and without reasonable belief that
her action or omission was in the best interest of the Company; or.
(viii) the
Executive having committed any violation of, or noncompliance with, any
securities law, rule or regulation or stock exchange or Nasdaq Stock Market
regulation rule relating to or affecting the Company, including without
limitation, the Executive’s failure or refusal to honestly provide a
certificate in support of the chief executive officer’s and/or principal
executive officer’s certification required under the Xxxxxxxx-Xxxxx Act of 2002,
including the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx
Act”).
5.2. Notice
of Termination.
Any
termination of the Executive’s employment by the Company or by the Executive
(other than termination by reason of the Executive’s death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a “Notice of Termination” shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated.
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5.3. Date
of Termination.
The
“Date of Termination” shall mean (a) if the Executive’s employment is
terminated by her death, the date of her death, (b) if the Executive’s
employment is terminated pursuant to subsection 5.1.2 above, fifteen (15) days
after Notice of Termination is given (provided that the Executive shall not
have
returned to the performance of her duties on a full-time basis during such
fifteen (15)-day period), (c) if the Executive’s employment is terminated
pursuant to subsection 5.1.3 or 5.1.4 above, the date specified in the Notice
of
Termination after the expiration of any applicable cure periods, if any, and
(d) if the Executive’s employment is terminated for any other reason, the
date on which a Notice of Termination is given.
5.4. Compensation
Upon Termination.
5.4.1. Termination
for Cause.
If the
Executive’s employment shall be terminated for Cause, the Company shall pay the
Executive her Base Salary through the Date of Termination, at the rate in effect
at the time Notice of Termination is given, and all expenses and accrued
Benefits arising prior to such termination which are payable to the Executive
pursuant to this Agreement through the Date of Termination and the Company
shall
have no further obligation with respect to this Agreement.
5.4.2. Termination
without Cause.
Subject
to the provisions of subsection 5.4.3 hereof, if, prior to the expiration of
the
Term, the Executive’s employment hereunder is terminated by the Company without
Cause (other than a termination by reason of Disability), or by the Executive
for Good Reason, the Company shall pay to the Executive all expenses and accrued
Benefits arising prior to such termination which are payable to the Executive
pursuant to this Agreement through the Date of Termination and the Company
shall
continue to pay the Executive her Base Salary as then in effect for the greater
of (i) the remainder of the original Term or (ii) a period of one year
(1) year from the Date of Termination (such period being referred to hereinafter
as the “Severance Period”), payable in monthly installments and, shall pay a pro
rata portion of the Incentive Bonus, if any, earned for the Employment Year
through the Date of Termination in the discretion of the Board of Directors,
at
such time the Incentive Bonus, if any, would otherwise have been payable in
accordance with Section 2.3 hereof. In addition, during the Severance Period,
the Executive shall be entitled to continue to participate in all employee
benefit plans that the Company provides (and continues to provide) generally
to
its senior executives.
5.4.3. Death
During Severance Period.
In the
event of the Executive’s death during the Severance Period, payments of Base
Salary under this Section 5.4 and payments under the Company’s employee benefit
plan(s) shall continue to be made in accordance with their terms during the
remainder of the Severance Period to the beneficiary designated in writing
for
such purpose by the Executive or, if no such beneficiary is specifically
designated, to the Executive’s estate.
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5.4.4. Termination
Following Change in Control.
(i) Anything
contained herein to the contrary notwithstanding, in the event the Executive’s
employment hereunder is terminated within six (6) months following a Change
in
Control (as defined below) by the Company without Cause, or by the Executive
for
Good Reason, then
the
Company shall pay to the Executive in complete satisfaction of its obligations
under this Agreement, as severance pay and as liquidated damages (because actual
damages are difficult to ascertain), an amount equal to (i) (a)
her
Base
Salary as then in effect for the greater of (x) the remainder of the
original Term or (y) a period of one (1) year from the Date of
Termination plus (b) an amount equal to the Incentive Bonus which would
otherwise been payable in accordance with Section 2.3 hereof for the
Employment Year in which the Date of Termination occurs,
in
monthly installments commencing 30 days following the Date of Termination;
or
(ii) a lump sum cash payment equal to the present value of the payments
otherwise due under clause (i); provided that if such severance payment,
either alone or together with other payments or benefits, either cash or
non-cash, that the Executive has the right to receive from the Company,
including, but not limited to, accelerated vesting or payment of any deferred
compensation, options, stock appreciation rights or any benefits payable to
the
Executive under any plan for the benefit of employees, which would constitute
an
“excess parachute payment” (as defined in Section 280G of the Internal Revenue
Code of 1986), then such severance payment or other benefit shall be reduced
to
the largest amount that will not result in receipt by the Executive of a
parachute payment. The determination of the amount of the payment described
in
this subsection shall be made by the Company’s independent auditors at the sole
expense of the Company. For purposes of clarification the value of any options
described above will be determined by the Company’s independent auditors using a
Black-Scholes valuation methodology.
For
purposes of this Agreement, a “Change in Control” shall be deemed to
occur (i) when
any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and as used in Section 13(d) and 14(d)
thereof, including a “group” as defined in Section 13(d) of the Exchange Act,
but excluding the Executive, the Company or any subsidiary or any affiliate
of
the Company or any employee benefit plan sponsored or maintained by the Company
or any subsidiary of the Company (including any trustee of such plan acting
as
trustee), becomes the “beneficial owner” (as defined in Rule 13(d)(3) under the
Exchange Act) of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding securities; or
(ii) the occurrence of a transaction requiring stockholder approval for the
acquisition of the Company by an entity other than the Company or a subsidiary
or an affiliated company of the Company through purchase of assets, or by
merger, or otherwise.
(ii) If
within
six (6) months after the occurrence of a Change in Control, the Company shall
terminate the Executive’s employment without Cause, or the Executive shall
terminate her employment for Good Reason, then notwithstanding the vesting
and
exercisability schedule in any stock option agreement between the Company and
the Executive, all unvested stock options granted by the Company to the
Executive pursuant to such agreement shall immediately vest and become
exercisable and shall remain exercisable for not less than 180 days
thereafter.
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5.4.5. Termination
upon Death or Disability.
In the
event of the termination of the Executive's employment by reason of death or
Disability, the Company shall pay the Executive her Base Salary through the
Date
of Termination, at the rate then in effect, and all expenses or accrued Benefits
arising prior to such termination which are payable to the Executive pursuant
to
this Agreement through the Date of Termination. In addition, the Executive
and/or her beneficiaries shall be entitled to such other Benefits as shall
be
determined in accordance with the benefit plans maintained by the Company.
6. INSURABILITY;
RIGHT TO INSURE
During
the continuance of the Executive's employment hereunder, the Company shall
have
the right to maintain key man life insurance in its own name covering the
Executive's life in such amount as shall be determined by the Company, for
a
term ending on the termination or expiration of this Agreement. The Executive
shall aid in the procuring of such insurance by submitting to the required
medical examinations, if any, and by filling out, executing and delivering
such
applications and other instrument in writing as may be reasonably required
by an
insurance company or companies to which application or applications for
insurance may be made by or for the Company.
7. CONFIDENTIALITY;
NONCOMPETITION; NONSOLICITATION; NONDISPARAGEMENT
7.1. The
Company and the Executive acknowledge that the services to be performed by
the
Executive under this Agreement are unique and extraordinary and, as a result
of
such employment, the Executive shall be in possession of confidential
information relating to the business practices of the Company. The term
“confidential information” shall mean any and all information (oral and written)
relating to the Company or any of its affiliates, or any of their respective
activities, as well as any distributors, vendors, suppliers, customers or other
third party of which the Executive shall possess in connection with her
employment with the Company, other than such information which (i) can be shown
by the Executive to be in the public domain (such information not being deemed
to be in the public domain merely because it is embraced by more general
information which is in the public domain) other than as the result of breach
of
the provisions of this Section 7.1 or (ii) the Executive is required to disclose
under any applicable laws, regulations or directives of any government agency,
tribunal or authority having jurisdiction in the matter or under subpoena or
other process of law. The Executive shall not, during the Term and for a period
of five (5) years thereafter, except as may be required in the course of the
performance of her duties hereunder, directly or indirectly, use, communicate,
disclose or disseminate to any person, firm or corporation any confidential
information regarding the clients, customers or business practices of the
Company acquired by the Executive, without the prior written consent of the
Company; provided,
however,
that
the Executive understands that Executive shall be prohibited from
misappropriating any trade secret at any time during or after the Term.
7.2. Upon
the
termination of the Executive’s employment for any reason whatsoever, all
documents, records, notebooks, equipment, price lists, specifications, programs,
customer and prospective customer lists and other materials which refer or
relate to any aspect of the business of the Company which are in the possession
of the Executive, including all copies thereof, shall be promptly returned
to
the Company.
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7.3. The
Executive hereby agrees that she shall not, during the Term and for a period
of
two years after the Date of Termination, directly or indirectly, within any
county (or adjacent county) in any State within the United States or territory
outside of the United States in which the Company is engaged in business during
the Term, engage, have an interest in or render any services to any business
(whether as owner, manager, operator, licensor, licensee, lender, partner,
stockholder, joint venturer, employee, consultant, advisor or otherwise)
competitive with the business activities conducted by the Company, its
subsidiaries, or affiliates during the Term which business activities include
the CAD (computer aided detection) of breast cancer and colon cancer or any
other areas the Company may operate or business activities the Company may
engage in.. Notwithstanding the foregoing, nothing herein shall prevent the
Executive from owning stock in a publicly traded corporation whose activities
compete with those of the Company’s, provided that such stock holdings are not
greater than two percent (2%) of the outstanding stock of such corporation.
7.4. The
Executive shall not, during the Term and for a period of two years after the
Date of Termination, directly or indirectly, take any action which constitutes
an interference with or a disruption of any of the Company’s business activities
including, without limitation, the solicitations of the Company’s customers,
distributors or vendors or persons listed on the personnel lists of the Company.
7.5. For
purposes of clarification, but not of limitation, the Executive hereby
acknowledges and agrees that the provisions of Sections 7.3 and 7.4 above shall
serve as a prohibition against her from, during the period referred to therein,
directly or indirectly, hiring, offering to hire, enticing, soliciting or in
any
other manner persuading or attempting to persuade any officer, employee, agent,
lessor, lessee, licensor, licensee or customer of the Company (but only those
suppliers existing during the time of the Executive’s employment by the Company,
or at the termination of her employment), to discontinue or alter her, her
or
its relationship with the Company.
7.6. (a) The
Executive agrees that all processes, technologies and inventions (“Inventions”),
including new contributions, improvements, ideas and discoveries, whether
patentable or not, conceived, developed, invented or made by her during the
Term
shall belong to the Company, provided that such Inventions grew out of the
Executive’s work with the Company, are related in any manner to the business
(commercial or experimental) of the Company or are conceived or made on the
Company’s time or with the use of the Company’s facilities or materials. The
Executive shall further: (a) promptly disclose such Inventions to the Company;
(b) assign to the Company, without additional compensation, all patent and
other
rights to such Inventions for the United States and foreign countries; (c)
sign
all papers necessary to carry out the foregoing; and (d) give testimony in
support of her inventorship;
(b) If
any
Invention is described in a patent application or is disclosed to third parties,
directly or indirectly, by the Executive within two (2) years after the
termination of her employment by the Company, it is to be presumed that the
Invention was conceived or made during the Term by the Company; and
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(c) The
Executive agrees that she will not assert any rights to any Invention as having
been made or acquired by her prior to the date of this Agreement, except for
Inventions, if any, disclosed to the Company in writing prior to the date
hereof.
7.7. The
Company shall be the sole owner of all products and proceeds of the Executive’s
services hereunder, including, but not limited to, all materials, ideas,
concepts, formats, suggestions, developments, arrangements, packages, programs
and other intellectual properties that the Executive may acquire, obtain,
develop or create in connection with and during the term of the Executive’s
employment hereunder, free and clear of any claims by the Executive (or anyone
claiming under the Executive) of any kind or character whatsoever (other than
the Executive’s right to receive payments hereunder). The Executive shall, at
the request of the Company, executive such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable
to
evidence, establish, maintain, perfect, protect, enforce or defend its right,
or
title and interest in or to any such properties.
7.8. At
no
time during or after the Term shall the Executive, directly or indirectly,
disparage the commercial, business, professional or financial, as the case
may
be, reputation of the Company or its officers or directors.
7.9. Without
intending to limit the remedies available to the Company, the Executive
acknowledges that a breach of any of the covenants contained in this Section
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may result in material and irreparable injury to the Company, or its affiliates
or subsidiaries, for which there is no adequate remedy at law, that it will
not
be possible to measure damages for such injuries precisely and that, in the
event of such a breach or threat the Company shall be entitled to seek a
temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
7 or such other relief as may be required specifically to enforce any of the
covenants in this Section 7. The Executive hereby acknowledges and agrees that
the type and periods of restrictions imposed in this Section 7 are fair and
reasonable and are reasonably required for the protection of the Company’s
confidential information and the goodwill associated with the business of the
Company. Further, the Executive acknowledges and agrees that the restrictions
imposed in this Section 7 will not prevent her from obtaining suitable
employment after her employment with the Executive ceases or from earning a
livelihood. If for any reason it is held that the restrictions under this
Section 7 are not reasonable or that consideration therefor is inadequate,
such
restrictions shall be interpreted or modified to include as much of the duration
and scope identified in this Section as will render such restrictions valid
and
enforceable.
8. EXECUTIVE’S
COOPERATION
During
the Term and thereafter, the Executive shall cooperate with the Company in
any
internal investigation or administrative, regulatory or judicial proceeding
as
reasonably requested by the Company (including, without limitation, the
Executive being available to the Company upon reasonable notice for interviews
and factual investigations, appearing at the Company’s request to give testimony
without requiring service of a subpoena or other legal process, volunteering
to
the Company all pertinent information and turning over to the Company all
relevant documents which are or may come into the Executive’s possession, all at
times and on schedules that are reasonably consistent with the Executive’s other
permitted activities and commitments). In the event the Company requires the
Executive’s cooperation in accordance with this section after the termination of
the Term, the Company shall reimburse the Executive for all of her reasonable
costs and expenses incurred, in connection therewith, plus pay the Executive
a
reasonable amount per day for her time spent.
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9. RIGHTS
OF
INDEMNIFICATION
The
Company shall indemnify the Executive to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
for all amounts (including without limitation, judgments, fines, settlement
payments, expenses and attorney’s fees) incurred or paid by the Executive in
connection with any action, suit, investigation or proceeding arising out of
or
relating to the performance by the Executive of services for, or the acting
by
the Executive as a director, officer or employee of the Company, or any other
person or enterprise at the Company’s request.
10. MISCELLANEOUS
10.1. Notices.
All
notices or communications hereunder shall be in writing, addressed as
follows:
|
To
the Company:
|
iCAD,
Inc.
0
Xxxxxxxx Xxxx, Xxxxx 00
Xxxxxx,
Xxx Xxxxxxxxx 00000
Attn:
Chief Executive Officer
|
|
|
with
a copy to:
|
||
|
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
|
||
|
To
the Executive:
|
Xxxxxxx
X. Xxxxxxx-Xxxxx
|
|
|
00
Xxxxx Xxxxxxxx Xxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
All
such
notices shall be conclusively deemed to be received and shall be effective
(i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission, (iii) if sent by overnight courier, one business day after
being sent by overnight courier, or (iv) if sent by registered or certified
mail, postage prepaid, return receipt requested, on the fifth day after the
day
on which such notice is mailed.
10.2. Severability.
Each
provision of this Agreement shall 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 prohibited by or invalid under applicable law, such provision
will
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Agreement.
11
10.3. Binding
Effect; Benefits.
Executive may not delegate her duties or assign her rights hereunder. This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns.
10.4. Entire
Agreement.
This
Agreement represents the entire agreement of the parties and shall supersede
any
and all previous contracts, arrangements or understandings between the Company
and the Executive. This Agreement may be amended at any time by mutual written
agreement of the parties hereto. In the case of any conflict between any express
term of this Agreement and any statement contained in any employment manual,
memo or rule of general applicability of the Company, this Agreement shall
control.
10.5. Warranty.
The
Executive hereby represents and warrants as follows: (i) that the execution
of this Agreement and the discharge of the Executive’s obligations hereunder
will not breach or conflict with any other contract, agreement, or understanding
between the Executive and any other party or parties; and (ii) the
Executive’s resume which was provided to the Company by the Executive and other
statements made about the Executive’s employment history to the Company by the
Executive are true, accurate and complete in all material respects.
10.6. Withholding.
The
payment of any amount pursuant to this Agreement shall be subject to applicable
withholding and payroll taxes, and such other deductions as may be required
under the Company’s employee benefit plans, if any.
10.7. Governing
Law.
This
Agreement and the performance of the parties hereunder shall be governed by
the
internal laws (and not the law of conflicts) of the State of Delaware. Any
claim
or controversy arising out of or in connection with this Agreement, or the
breach thereof, shall be adjudicated exclusively by the state courts for the
State of New Hampshire, or by a federal court sitting in New Hampshire. The
parties hereto agree to the personal jurisdiction of such courts and agree
to
accept process by regular mail in connection with any such dispute.
10.8. Execution
in Counterparts.
This
Agreement may be executed by the parties in one or more counterparts, each
of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement, and shall become effective when one
or
more counterparts has been signed by each of the parties hereto and delivered
to
each of the other parties hereto. A photocopy or electronic facsimile of this
Agreement or of any signature hereon shall be deemed an original for all
purposes.
12
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and
the Executive has hereunto set her hand, as of the day and year first above
written,
| THE COMPANY: | ||
| iCAD, INC | ||
|
|
||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
|
Name:
|
||
|
Title:
CEO
|
||
| EXECUTIVE | ||
| /s/ Xxxxxxx X. Xxxxxxx-Xxxxx | ||
| Xxxxxxx X. Xxxxxxx-Xxxxx | ||
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